Noel Canning, Div. of the Noel Corporation

National Labor Relations Board - Board Decisions

Jul 14, 2016

364 NLRB No. 45 (N.L.R.B. 2016)

364 NLRB No. 45
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Noel Canning, a division of the Noel Corporation and
Teamsters Local 760. Case 19–CA–145344
July 14, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On January 28, 2016, Administrative Law Judge Ariel
L. Sotolongo issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, and a reply
brief. The General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Noel
Canning, A Div. of the Noel Corporation, Yakima,
Washington, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
“(b) Within 14 days after service by the Region, post at
its Yakima, Washington facility copies of the attached

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. In addition, the Respondent contends
that the judge’s rulings, findings, and conclusions demonstrate bias and
prejudice. On careful examination of the judge’s decision and the
entire record, we are satisfied that the Respondent’s contentions are
without merit.
The judge discussed the Board’s Order in Noel Canning, 361 NLRB
No. 129 (2014), which reaffirmed and incorporated by reference the
Board’s Decision and Order in 358 NLRB 16 (2012), in light of the
Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550
(2014). We note that recently the United States Court of Appeals for
the District of Columbia Circuit enforced the Board’s 2014 Order. See
Noel Canning v. NLRB, ___ F.3d ___ (D.C. Cir. 2016).
2 We shall modify the judge’s recommended Order in accordance
with our decision in Excel Container, Inc., 325 NLRB 17 (1997), to
reflect the date the Respondent unlawfully denied access to the Charg-
ing Party’s representatives.
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since January 27, 2015.”
Dated, Washington, D.C. July 14, 2016
Mark Gaston Pearce, Chairman
Kent Y. Hirozawa, Member
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Patrick E. Berzai, Sr., Esq., for the General Counsel.
Gary E. Lofland, Esq. (Meyer Fluegge & Tenney, PS), for the
Respondent.
DECISION
STATEMENT OF THE CASE
ARIEL L. SOTOLONGO, Administrative Law Judge. I presided
over this case in Yakima, Washington, on October 13, 2015,
pursuant to a complaint issued by the Regional Director for
Region 19 of the National Labor Relations Board (the Board)
on July 13, 2015. The complaint alleges that Noel Canning, a
Division of the Noel Corporation (Respondent or the Employ-
er), violated Section 8(a)(5) and (1) and 8(d) of the Act by
denying access to its facility in Yakima to a business repre-
sentative of Teamsters Local 760 (Union), with whom Re-

3 If this Order is enforced by a Judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
spondent has a collective-bargaining relationship. As discussed
below, the collective-bargaining history of the parties, as well
as the legal background to the present case, are important in
understanding the current dispute and placing it in its proper
context.
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent admits, and I find, that it is a Washington corpo-
ration with an office and place of business in Yakima, Wash-
ington, where it is engaged in bottling and distributing Pepsi-
Cola products. In conducting its business operations in the
previous12-month period as of July 2015, a representative peri-
od, Respondent derived gross revenues in excess of $500,000.
During the same time period, Respondent purchased and re-
ceived at its Yakima facility goods valued in excess of $50,000
directly from points outside the State of Washington.
Accordingly, I find that Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
Respondent also admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE(S)
A. Background Facts
The background in this case is key to understanding the cur-
rent controversy and, except as discussed below, is not in dis-
pute. Respondent and the Union have had a collective-
bargaining relationship for a number of years, with the Union
representing certain of Respondent’s employees.1 The last
undisputed collective-bargaining agreement between the parties
was in effect from May 1, 2007, to April 30, 2010. The parties
engaged in collective-bargaining negotiations for a new con-
tract from June to December 2010, and these negotiations—and
their result—is the subject of a dispute described below.
On September 26, 2011, Administrative Law Judge Gerald
A. Wacknov issued a decision finding that on December 8,
2010, Respondent and the Union, during the course of negotia-
tions, reached a verbal agreement regarding the substantive
terms of a new collective-bargaining agreement (the Agree-
ment). The judge also concluded that by refusing to execute
the agreement, which was ratified by a vote of the unit employ-
ees on December 15, 2010, Respondent violated Section 8(a)
(5) and (1).2 On February 8, 2012, the Board affirmed Judge
Wacknov’s decision. Thereafter, in January 2013, the United
States Court of Appeals for the District of Columbia vacated
the Board’s order, on the grounds that at the time the Board

1 The Union represents the following employees of Respondent: All
production employees, including lead production, dock/warehouse
employees, including lead dock/warehouse, quality control mixer,
maintenance employees, mechanics, construction worker employees,
utility employees; excluding all other employees, guards, office clerical
employees, owners and supervisors as defined in the Act.
2 The agreement, according to the agreed-upon terms found by the
judge to have occurred, was to be effective from October 1, 2010, to
September 30, 2012. The judge also found that Respondent violated
the Act by reneging on its agreement to pay a retroactive bonus to
employees.
included three persons whose appointments were constitution-
ally invalid, and therefore the Board lacked a proper quorum to
issue its decision and order. In June 2014, the Supreme Court
issued its now seminal decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), which for the first time defined and set pa-
rameters on the President’s constitutional authority to make
recess appointments. The Court found that the President’s
January 2012 recess appointments to the Board were invalid,
affirming the court of appeals’ judgment vacating the Board
decision, on modified grounds.
On December 16, 2014, the Board took up the matter again
and affirmed Judge Wacknov’s decision, finding that Respond-
ent had violated the Act by refusing to execute the Agreement,
ordering Respondent to execute the Agreement and abide by its
terms, including the payment of a retroactive bonus to employ-
ees. Noel Canning, 361 NLRB No. 129 (2014).3 Article 10.6
of the agreement (the access clause), which was also contained
in the prior 2007–2010 agreement, states:
Authorized agents of the Union shall have access to [Re-
spondent’s] establishment during working hours for the pur-
poses of adjusting disputes, investigating working conditions,
and ascertaining that the agreement is being is being adhered
to, provided, however, that there is no undue interruption of
[Respondent’s] working schedule.
It is the application of the above access clause, which in-
cludes the past practice of the parties, which is the subject of
the current dispute, as discussed below.
B. The Current Dispute
The current dispute centers on events that occurred in Janu-
ary, 2015.4 Union Business Representative Robert Koerner
testified that he has been served in that capacity since 2003, and
is assigned to represent Respondent’s employees. He testified
that in carrying out his duties as business representative, he
visited Respondent’s bottling plant (the “plant” or “facility”) on
average about 7–10 times per year since 2003. Sometimes his
visits were simply to post a union notice in the employee break
(or lunch) room, and involved little or no interaction with the
unit employees. Other times would he would meet with em-
ployees, including shop stewards Eddie Ford or Mark Weber, to
discuss grievances or work assignments. Koerner testified that

3 The Board’s decision is currently pending review by the U.S.
Court of Appeals for the District of Columbia. There is no dispute that
the 2014 Board that issued the latest decision in this matter was proper-
ly appointed, although Respondent contends in its appeal, inter alia,
that the Board lacked jurisdiction because at the time of its decision the
case had not been remanded by the court of appeals.
4 All dates shall be in 2015, unless otherwise indicated. Henceforth,
transcript pages will be referred to as “Tr.” followed by the p. num-
ber(s). General Counsel’s exhibits will be referred to as “GC Exh.;”
Respondent’s exhibits will be referred to as “R. Exh.” I note the tran-
script, although generally accurate, contains a number of errors, which
will be corrected as follows: p. 28, L. 2, “shelf” should be “shop; p. 32,
L. 8 “noticed” should be “notices;” p. 39, L. 5, “adopt” should be
“don’t;” p. 40, L. 16, “in her” should be “not;” p. 60, L. 14, “record”
should be “records.” There may be other errors, but these are the most
salient.
NOEL CANNING 3
the procedure for his visits was always the same, and never
required prior notice. He would simply show up at the gate to
the plant, announce (through an intercom system) that he was
there for an official union visit, and was granted access through
the gate to the parking lot. He would then proceed to the recep-
tion area of the plant, and the receptionist would then give him
a hair net to wear inside the plant, and allow him to go into the
plant to conduct his business. On those occasions when the
receptionist was not present, Koerner would go into Plant Man-
ager Sam Brackney’s office, which was adjacent to reception
area, and Brackney (or his predecessor, Jerry Aucutt) would
allow him in. Koerner identified several notices that he person-
ally posted at Respondent’s break room on different times using
this procedure, which were introduced into evidence (GC Exhs.
5; 6; 7; and 8; Tr. 17–18; 23–30; 32–38; 42–43).
On January 27, Koerner asked his fellow business repre-
sentative, Carl Keller, to accompany him on a visit to Respond-
ent’s facility. Koerner testified that he and Keller first visited
the “corporate” or administrative office, which is located direct-
ly across the street from the plant. At the corporate office,
Koerner dropped off copies of the agreement, which the Board
had ordered Respondent to execute in its December 2014 deci-
sion, described above. They then went across the street to the
plant, and announced at the gate that they were there for a visit,
and were granted access into the parking lot. Koerner testified
that he and Keller then went to the reception office in the plant
and informed the receptionist that they were there to post a
notice in the employee break room. Rather than granting them
access to the plant as in the past, the receptionist had them wait,
and went to inform Brackney. When Brackney came out to the
reception area, he informed Koerner (in Keller’s presence) that
he was not allowed in the plant (or the premises), that if he
wanted something posted, the shop steward would have to do
so.
When Koerner asked why, Brackney responded that he was
only doing his job. Koerner then said that he would be filing
charges, and he and Keller then left. (Tr. 37–38; 40.)5
Keller corroborated Koerner’s testimony about the events of
January 27, including their visit to both the “corporate” office
as well as the plant’s reception area, and of their encounter with
Brackney, who denied Koerner access to post the notice. In-
deed, the only difference in their accounts of the events is that
in Keller’s version, when Koerner asked Brackney why he was
denying him access, Brackney replied that he was just doing

5 Koerner never showed Brackney the actual notice he wanted to
post. Koerner initially incorrectly identified a notice introduced as GC
Exh. 4 as the one he had intended to post on that day, but later correct-
ed his testimony to indicate that the notice introduced as GC Exh. 9 was
the one he had intended to post on that day. GC Exh 9 was marked as
an exhibit (Tr. 97) and discussed by Koerner in his testimony, but ap-
parently the General Counsel inadvertently failed to offer it into evi-
dence, so it was not admitted into the record. I admit GC Exh. 9 into
the record now, since this evidence was duly considered and Respond-
ent cross-examined Koerner about its contents. Moreover, in the final
analysis, the actual contents of the notice are of little relevance, since
the basis of Respondent’s refusal to grant Koerner access on January 27
had nothing to do with the contents of the intended notice, which was
never shown to Brackney.
what he was told to do—as opposed to saying that he was just
doing his job. (Tr. 56–60.)
Eddie Ford testified that he has been an employee of Re-
spondent at the plant for 26 years, and a union shop steward for
about 10 years. He testified that he has observed Koerner visit-
ing inside the plant a few times a year, sometimes just posting a
notice in the break room, and other times speaking to employ-
ees. He has actually observed Koerner post union notices at the
bulletin board at the employee break room inside the plant. He
testified that he was not aware that Koerner had been denied
access to enter the plant on January 27. (Tr. 62–64; 70.)
Sam Brackney, Respondent’s plant manager, testified that he
has served in that capacity for about 9 years. Regarding the
events of January 27, Brackney admitted denying Koerner ac-
cess to the plant to post a notice, and telling Koerner that it was
up to the shop steward—whom he identified as Mark Weber—
to post the notice.6 He did not remember if someone was ac-
companying Koerner on that day. Brackney’s explanation for
his denial of access to Koerner on that day contradicts not only
Koerner’s testimony, but Union Shop Steward Ford’s as well.
As long as he had been manager, according to Brackney,
Koerner had never been allowed access to the plant to post
notices, which were instead posted by the shop steward.
Brackney admitted never actually having seen the shop stew-
ard—either Weber or Ford—posting a notice, but since Weber
arrived at the plant earlier than he did, he assumed that Weber
had posted the notices before he arrived. He admitted that the
contract allowed union agents access if the matter pertained to
the “contract,” but testified that he did not recall ever seeing
Koerner inside the plant to handle grievances or for any other
reason, adding that there hadn’t been any grievances since he
(Brackney) had been there.7 He also asserted that there was no
way for Koerner to have visited the plant without his
knowledge, because he would have been told had Koerner vis-
ited. (Tr. 74–76; 78–81; 85–90.)
As implied above, the testimony of Brackney cannot be rec-
onciled with that of Koerner or Ford, because he contradicts
them. I credit the testimony of Koerner, and conclude that the
practice prior to January 2015 was that he would routinely be
allowed access into Respondent’s plant to post notices or to
meet with employees for matters relating to the collective-
bargaining agreement. I credit Koerner’s testimony—and dis-
credit Brackney—for the following reasons. First, Koerner
testified that he had personally posted several notices, which
were introduced as evidence, at the employee break room at
Respondent’s plant—a room that he described in detail, as he
did other parts of the plant. Such familiarity with the layout of

6 Brackney testified that Eddie Ford had been steward “until a few
years ago,” but then added that Ford and Weber “have a shared duty”
(as stewards), although it was Weber who took care of things (Tr. 77;
84). I note that in his September 2011 decision, Judge Wacknov indi-
cated that Ford was the steward at the time, and that Weber had substi-
tuted for him at the December 8, 2010 bargaining session because of an
injury that Ford had sustained.
7 Koerner testified that during his time as business representative, a
couple of grievances have been filed by Respondent’s employees, the
last one in 2008, but that no grievance had reached arbitration (Tr. 51–
52).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
the plant would not be likely from a person who had rarely—if
ever, if Brackney were to be believed—visited the plant. Sec-
ondly, Ford testified that he had seen Koerner inside the plant
on numerous occasions, either posting notices or meeting with
employees, thus corroborating Koerner’s testimony. Brackney,
on the other hand, had never actually seen the notices being
posted, and assumed they had been posted by the shop steward.
Moreover, I find it highly implausible, under the circumstances,
that a business agent of this Union—or any union in similar
circumstances, for that matter—would not ever visit one of his
shops (as implied by Brackney), during a period of 10–12
years. Finally, although it is true that the contractual access
clause, as further discussed below, does not include or mention
the posting of notices as one of the reasons for allowing access,
it is reasonable to infer that such access would have been rou-
tinely granted. In this regard I note that the posting of a notice
could be accomplished quickly and would not typically require
any contact between the business agent and unit employees,
thus minimizing any chances of interruption or disruption of
work—which the language of the access clause emphasizes as a
goal.
Accordingly, and for these reasons, I credit the testimony of
Koerner and Ford, and conclude that prior to January 27, 2015,
the past practice of the parties was to allow the Union’s repre-
sentative, Koerner, access to the plant to post notices—as well
as to meet with employees.8
C. Discussion and Analysis
This case presents several issues. First; Did Respondent uni-
laterally change the contract regarding the Union’s right to gain
access to the plant, as alleged by the General Counsel in its
complaint and posthearing brief? Second, even if Respondent
did not change the contact, did Respondent unilaterally change
past practice as to how the access clause was construed and
implemented by the parties? Third, assuming past practice was
unilaterally changed was the change material, substantial, or
significant or was such change de minimis? Finally, assuming
that the answer is yes, was such violation properly alleged or
implied by the pleadings, thus giving Respondent due process
opportunity to fully litigate the issue?
First, with regard to the allegation that Respondent unilater-
ally changed the contract, the General Counsel argues in its
brief that Respondent derogated the agreement by denying the
Union Business Agent (Koerner) access to post a notice on
January 27. The General Counsel further avers in its brief that
the access clause in essence granted the Union unfettered ac-
cess to the plant, since the access clause allowed it to check if
“the Agreement is being adhered to.” I disagree. A plain read-
ing of the access clause reveals that access is allowed “for the

8 Koerner also testified that in July, after being initially refused to
post another notice by another management official (Bill Dalton), he
pleaded with Brackney to let him post the notice (GC Exh. 4) because
the International Union required the posting, which dealt with the elec-
tion of International union officers. Brackney allowed the posting at
the time, even though Brackney confessed that this might get him “in
trouble.” (Tr. 99–100.) In my view this allowed posting did not repre-
sent a return to the past practice, but rather consisted of a one-time
isolated event.
purposes of adjusting disputes, investigating working condi-
tions, and ascertaining that the agreement is being adhered to
. . . ” (emphasis supplied), which clearly sets some limitations
on the reasons for allowing access. Koerner admittedly did not
request access on January 27 for any of the above-described
purposes, but rather requested access to post a notice (GC Exh.
9). This notice simply announced a union meeting regarding
contract proposals (and a barbeque), a purpose that cannot be
reasonably construed to fall within the specified purposes listed
in the access clause. The is simply no evidence that Koerner
wanted access for the reasons specified in the access clause, nor
that he had any reasonable belief, for example, that the contract
was not being adhered to. Further, Respondent did not com-
pletely refuse the Union the chance to post the notice (and
therefore the right to communicate with its members), but ra-
ther insisted that it should be done by the shop steward—not
the agent by giving him access. Accordingly, I conclude that
Respondent did not “abrogate” or modify the contract—at least
not the letter of the contract.9
Whether Respondent abrogated the spirit of the contract, as
reflected by the parties’ past practice, is another matter alto-
gether, which brings us to the second issue posed above. Based
on the credited testimony of Koerner and Ford, I concluded that
Respondent routinely granted access to Koerner into its plant to
post union notices, as well as meeting with employees, and that
such access was granted in an informal manner without need
for prior notice. Accordingly, I conclude that regardless of
actual language of the access clause, this practice had become
the established modus operandi of the parties. It is well estab-
lished that employers cannot unilaterally change the terms and
conditions of employment when its employees are represented
by a union, whether such terms and conditions are explicitly
spelled out in a collective-bargaining agreement or exist by
virtue of an established past practice, when such change is ma-
terial, substantial and significant. The Board has found em-
ployers who have unilaterally changed their policy regarding
permitting access to union representatives have violated Section
8(a)(5) and (1) of the Act, since such access is a mandatory
subject of bargaining. Fred Meyers Stores, Inc., 362 NLRB
No. 82 (2015); Turtle Bay Resorts, 355 NLRB 706 (2010);
Ernst Home Centers, Inc., 308 NLRB 848, 848–849 (1992).
Respondent avers that even if the past practice was changed,
such change was not material, substantial, or significant. I
disagree. First, I note that the Board has found such change to
be significant and material in similar situations, because it tends
to interfere with a representative’s ability to represent employ-

9 The General Counsel cites Frontier Hotel & Casino, 309 NLRB
761 (1992), enfd. sub nom. NLRB v. Unbelievable, Inc., 71 F. 3d 1434
(9th Cir 1995), in support of its argument that Respondent “abrogated”
the contract by denying the union agent access under the circumstances
described above. I find that case to be inapposite, because the circum-
stances therein were much different. In Frontier Hotel, the employer not
only denied access to several union agents, but permanently barred
them from its premises, even though they had only engaged in contract-
related conversations with bargaining unit members in non-work areas,
an activity that was explicitly permitted under the terms of the access
clause of their agreement. The language of the agreement in this case
does not explicitly or clearly permit the type of access involved herein.
NOEL CANNING 5
ers effectively. Turtle Bay Resorts, supra; Frontier Hotel &
Casino, supra. Indeed, I note that this change, given Respond-
ent’s position and stance in this litigation, does not appear to be
an isolated or one-time event, but represents a change in policy,
having taken the position that union representatives were never
allowed to post notices, a policy likely to be enforced in the
future, unless barred. Moreover, this incident, in my view,
cannot be considered in isolation. Instead, it must be viewed as
a continuation—or reaffirmation—of a policy of repudiating
past agreements or practices that started in 2010, when Re-
spondent repudiated a collective-bargaining agreement it had
reached with the Union, as found by the prior judge in 2011 and
affirmed by the Board in its 2014 decision, cited above. Thus,
it can be inferred that the current incident represents the further
“tightening of the screws” in what can, in these circumstances,
be reasonably viewed as Respondent’s plan to distance its em-
ployees from their collective-bargaining representative. I con-
clude that it cannot be a complete coincidence that this incident
occurred shortly after the Board had ordered Respondent to
execute and abide by the terms of the agreement it had agreed
to it 2010, and just minutes after the Union’s agent, Koerner,
had dropped off a copy of said agreement at the corporate of-
fice across the street from the plant for Respondent to sign.
Accordingly, I conclude that by unilaterally changing the par-
ties’ past practice regarding the Union representative’s access
to post notices, Respondent violated Section 8(a)(5) and (1) of
the Act. 10
Finally, Respondent argues that to the extent that a unilateral
change to past practice is the key to finding a violation of the
Act in this matter, the General Counsel did not allege or plead
such in its complaint, impliedly suggesting that such finding
cannot be sustained because it would violate due process. It is
true that the General Counsel in its complaint did not plead a
unilateral change in past practice as the basis for finding a vio-
lation. Rather, the complaint cites the access clause, pleads the
denial of access on January 27, alleges Respondent’s denial of
access is a mandatory subject of bargaining, and generically
alleges that by engaging in such conduct Respondent failed to
bargain collectively within the meaning of Section 8(d) and in
violation of Section 8(a)(1) and (5) of the Act. (Complaint pars.
6 and 7.) Thus, unlike the situation in Springfield Day Nursery,

10 In light of the above, it is with no small amount of irony that I
view some unsolicited remarks volunteered by Brackney during his
testimony. He thus testified: “(M)ay I say something? . . . One of the
biggest complaints that I have about—from the employees is they never
see their Union rep. So that kind of says it right there” (Tr. 90). It
should be noted that to the extent visits by union representatives to the
plant may have diminished in the last few years, a large part of the
blame must be laid at Respondent’s feet. Because of Respondent’s
unfair labor practice in repudiating the 2010–2012 agreement, as found
by the Board, the parties’ collective-bargaining relationship has been in
limbo, with everything “frozen in place” since 2010. This includes the
lack of a grievance procedure, which is no longer in effect after the
prior contract’s expiration. Respondent is thus reaping the benefits of
its unlawful conduct, and is now further restricting the Union’s repre-
sentatives’ access. In these circumstances, Respondent should not now
be heard to repeat employees’ ostensible complaints about the lack of
the Union’s presence in the plant.
362 NLRB No. 30 (2015), or Pepsi Bottling Group, Inc., 338
NLRB 1123 (2003), the General Counsel did not specifically
plead or litigate a contract modification in violation of Section
8(d), only to change course in its brief to argue instead a unilat-
eral change in violation of Section 8(a)(5) and (1). In Spring-
field Day Nursery and Pepsi Bottling Group the Board found
such postlitigation change of theories improper and in violation
of due process, because the theories of contract modification
and unilateral change are different and may call for different
defenses. In the present case, however, a unilateral change in
violation of Section 8(a)(5) and (1) was alleged in the com-
plaint, albeit not specifically mentioning past practice. Moreo-
ver, in his opening remarks, counsel for the General Counsel
argued that Respondent had denied the Union access that it had
routinely allowed previously, which implies past practice, stat-
ed that such unilateral change was material and significant, and
that such conduct violated Section 8(a) (5) and (1) of the Act
(Tr. 15–16). Just as importantly, Union Business Agent
Koerner testified at length about the parties’ past practice with
regard to access, testimony that was addressed by Respondent’s
only witness, Brackney. Accordingly, Respondent was on no-
tice about General Counsel’s theories, even if they were evolv-
ing as the case progressed. Respondent had full opportunity to
address the facts as presented by the General Counsel, and I
conclude that this matter was fully litigated.
In these circumstances, I am permitted to find a violation on
a different theory than explicitly plead by the General Counsel.
Hawaiian Dredging Construction Co., 362 NLRB No. 10, slip
op at 2 fn. 6 (2015); Space Needle, LLC, 362 NLRB No. 11,
slip op. at 4 (2015). Accordingly, I conclude that Respondent
violated Section 8(a)(5) and (1) of the Act by unilaterally
changing the parties’ past practice with regard to access.
CONCLUSIONS OF LAW
1. Noel Canning, a Division of the Noel Corporation (Re-
spondent) is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Teamsters Local 760 (Union) is a labor organization with-
in the meaning of Section 2(5) of the Act.
3. By denying union representatives access to its plant to
post a notice, Respondent unilaterally changed the terms and
conditions of employment, and has been failing and refusing to
bargain collectively and in good faith with the Union as the
collective-bargaining representatives of its employees within
the meaning of Section 8(d) of the Act in violation of Section
8(a)(1) and (5) of the Act.
REMEDY
The appropriate remedy for the 8(a)(5) and (1) violation I
have found is an order requiring Respondent to cease and desist
from such conduct and to take certain affirmative action con-
sistent with the purposes of the Act.
Specifically, having found that Respondent violated Section
8(a)(5) and (1) of the Act by refusing to grant access to union
representatives to post a notice in the plant, I shall recommend
that Respondent be ordered to cease and desist from such con-
duct. Additionally, Respondent will be required to post a no-
tice to employees assuring them that Respondent will not vio-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
late their rights in this or any other related manner in the future.
Finally, to the extent that Respondent communicates with its
employees by email, it shall also be required to distribute the
notice to employees in that manner, as well as any other elec-
tronic means it customarily uses to communicate with employ-
ees.
Accordingly, based on the forgoing findings of fact and con-
clusions of law, and on the entire record, I issue the following
recommended11
ORDER
The Respondent, Noel Canning, a Division of the Noel Cor-
poration, Yakima, Washington, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Unilaterally changing the past practice of granting access
to union representatives for the purpose of posting notices in
the plant.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the purposes and policies of the Act.
(a) Rescind the unilateral change in the parties’ practice re-
garding access to the plant by union representatives to post
union notices, and notify the Union in writing that this has been
done.
(b) Within 14 days after service by the Region, post at all its
facility in Yakima, Washington, where notices to employees
are customarily posted, copies of the attached notice marked
“Appendix.”12 Copies of the notice, on forms provided by the
Regional Director for Region 19, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facilities involved in
these proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current employees
and former employees employed by the Respondent at any time
since January 29, 2015.

11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
12 If this Order is enforced by a Judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
(c) Within 21 days after service by the Region, file with the
Regional Director for Region 19, a sworn certification of a
responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
Dated, Washington, D.C. January 28, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefits
and protection
Choose not to engage in any of these protected activi-
ties.
In recognition of these rights, we hereby notify employees
that:
WE WILL NOT unilaterally, and without bargaining with
Teamsters Local 760 (Union), change our practice of allowing
union representatives access to the plant to post union notices.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed by
Section 7 of the Act.
WE WILL rescind the unilateral change in the parties’ practice
to allow union representatives access to the plant to post union
notices, and notify the Union in writing that this has been done.
NOEL CANNING, A DIVISION OF THE NOEL
CORPORATION
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/19-CA-145344 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.