Noel Canning, a Division of the Noel Corporation

National Labor Relations Board - Board Decisions

Feb 8, 2012

358 N.L.R.B. 16 (N.L.R.B. 2012)

16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

358 NLRB No. 4

Noel Canning, a Division of the Noel Corporation,
and Teamsters Local 760. Case 19–CA–032872
February 8, 2012
DECISION AND ORDER
BY MEMBERS HAYES, FLYNN, AND BLOCK
On September 26, 2011, Administrative Law Judge
Gerald A. Wacknov issued the attached decision. The
Respondent, Noel Canning, filed exceptions and a sup-
porting brief, and the Acting 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 exceptions1 and briefs, and has decided to
affirm the judge’s rulings, findings,2 and conclusions, to
clarify his remedy,3 and to adopt the recommended

1 No exceptions were filed to the judge’s dismissal of the allegation
that the Respondent, through Noel’s comments that he would give
employees what they wanted if only they would get out of the Union,
independently violated Sec. 8(a)(1).
2 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, some of the Respondent’s exceptions imply that the
judge’s rulings, findings and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
3 The Respondent shall make whole the unit employees for any
losses attributable to its failure to execute the 2010 agreement in the
manner set forth in Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily
as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
The Respondent shall also make whole its unit employees by making
delinquent contributions to the Union Pension Trust Fund that have not
been made since October 1, 2010, including any additional amounts
due the funds in accordance with Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979). Further, Respondent shall be required
to reimburse its unit employees for any expenses ensuing from its fail-
ure to make the required fund contributions, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661
F.2d 940 (9th Cir. 1981). Such amounts should be computed in the
manner set forth in Ogle Protection Service, supra, with interest at the
rate prescribed in New Horizons for the Retarded, supra, compounded
daily as prescribed in Kentucky River Medical Center, supra. To the
extent that an employee has made personal contributions to the Union
Pension Trust Fund that have been accepted by the Fund in lieu of
Respondent’s delinquent contributions during the period of the delin-
quency, Respondent will reimburse the employee, but the amount of
such reimbursement will constitute a setoff to the amount that Re-
spondent otherwise owes the Fund.
Order as modified and set forth in full below.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Noel Canning, a division of the Noel Corpo-
ration, Yakima, Washington, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with the Union in
good faith by refusing to reduce to writing and to execute
a collective-bargaining agreement reached with the Un-
ion, Teamsters Local 760, embodying the terms agreed to
on December 8, 2010, and ratified by the employees on
December 15, 2010, including payment of a retroactive
bonus, thereby repudiating the parties’ agreement.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Execute a collective-bargaining agreement embod-
ying the terms reached with the Union on December 8,
2010, and ratified by the employees on December 15,
2010, for all employees in the following appropriate bar-
gaining unit:

All production employees, including lead production,
dock/warehouse employees, including lead dock/
warehouse, quality control mixer, maintenance em-
ployees, mechanics, construction worker employees,
utility employees; excluding all other employees,
guards, office clerical employees, owners and supervi-
sors as defined in the Act.

(b) Give retroactive effect, to October 1, 2010, to the
provisions of the collective-bargaining agreement
reached with the Union on December 8, 2010, and rati-
fied by the employees on December 15, 2010, and apply
the terms of that agreement for the agreed-upon 2-year
duration, through September 30, 2012.

4 We have modified the judge’s recommended Order to include the
appropriate remedial language for the violation found, and we have
substituted a new notice to conform to the Order as modified. We note,
specifically, that the modified Order does not require the Respondent to
execute a contract with a 3-year term, but only to execute a contract
embodying the agreement reached by the parties on December 8, 2010,
and ratified by the employees on December 15, 2010, which agreement,
as found by the judge, was for a 2-year term.
For the reasons stated in his dissenting opinion in J. Picini Flooring,
356 NLRB 11 (2010), Member Hayes would not require electronic
distribution of the notice.
NOEL CANNING 17
(c) Make all affected unit employees and the union
pension trust whole, with interest, for any loss of wages
or retroactive pension amounts.
(d) Make all affected unit employees whole, with in-
terest, for the retroactive bonus (made to compensate
employees for the length of time it took to get a contract)
agreed upon by the Respondent and the Union on De-
cember 8, 2010.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amounts due under the terms of
this Order.
(f) Within 14 days after service by the Region, post at
its facility and place of business in Yakima, Washington,
copies of the attached notice marked “Appendix.”5 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 19, after being signed by the Respond-
ent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 December 8, 2010.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 19 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

5 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.”
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 Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to bargain with the Union in good
faith by not reducing to writing and signing a collective-
bargaining agreement reached with the Union, embody-
ing the terms agreed to on December 8, 2010, and rati-
fied by employees on December 15, 2010, including
payment of a retroactive bonus, thereby repudiating the
agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL execute a collective-bargaining agreement
embodying the terms reached with the Union on Decem-
ber 8, 2010, and ratified by employees on December 15,
2010, for all employees in the following appropriate bar-
gaining unit:

All production employees, including lead production,
dock/warehouse employees, including lead dock/ware-
house, quality control mixer, maintenance employees,
mechanics, construction worker employees, utility em-
ployees; excluding all other employees, guards, office
clerical employees, owners and supervisors as defined
in the Act.

WE WILL give retroactive effect, to October 1, 2010, to
the collective-bargaining agreement, and apply the terms
of that agreement for the agreed-upon 2-year duration,
through September 30, 2012.
WE WILL make our unit employees and the union pen-
sion trust whole, with interest, for any loss of wages or
retroactive pension amounts.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18
WE WILL make our unit employees whole, with inter-
est, for the retroactive bonus.

NOEL CANNING, A DIVISION OF THE NOEL CORP.

Ryan Connolly, Esq., for the General Counsel.
Gary Lofland, Esq. (Lofland and Associates), of Yakima,
Washington, for the Respondent.
Bob Koerner, Business Representative, Teamsters Local 760,
of Yakima, Washington for the Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice, a hearing in this matter was held before me in Ya-
kima, Washington, on June 21 and 22, 2011. The charge was
filed by Teamsters Local 760 (the Union) on December 15,
2010, and an amended charge was filed by the Union on Febru-
ary 7, 2011. Thereafter, on March 31, 2011, the Regional Di-
rector for Region 19 of the National Labor Relations Board (the
Board) issued a complaint and notice of hearing alleging a vio-
lation by Noel Canning, a Division of the Noel Corporation (the
Respondent) of Section 8(a)(1) and (5) of the National Labor
Relations Act, as amended (Act). The Respondent, in its answer
to the complaint, duly filed, denies that it has violated the Act
as alleged.
The parties were afforded a full opportunity to be heard, to
call, examine, and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the General Counsel and coun-
sel for the Respondent. Upon the entire record, and based upon
my observation of the witnesses and consideration of the briefs
submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Washington state corporation, maintains
an office and place of business in Yakima, Washington, where
it is engaged in the business of bottling and distributing Pepsi-
Cola products. In the course and conduct of its business opera-
tions the Respondent annually derives gross revenues in excess
of $500,000, and annually purchases and receives at its Ya-
kima, Washington facility goods, products, and materials val-
ued in excess of $50,000 directly from points outside the State
of Washington. It is admitted and I find that the Respondent is,
and at all material times has been, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is and at all times
material has been, a labor organization within the meaning of
Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issues in this proceeding are whether the Re-
spondent has violated and is violating Section 8(a)(1) of the Act
by certain statements made during the course of bargaining, and
whether the Respondent has violated Section 8(a)(5) and (1) of
the Act by refusing to execute and enter into a collective-
bargaining agreement verbally agreed to by the parties during
negotiations.
B. Facts
The parties had maintained a long-standing collective-
bargaining relationship over successive collective-bargaining
agreements. The prior collective-bargaining agreement extend-
ed from May 1, 2007, to April 30, 2010.1 The collective-
bargaining unit is described as follows:

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.

The current set of negotiations commenced on June 26. Ne-
gotiations took place on June 26, July 7, August 19, October
26, November 15, and December 8. The complaint alleges and
the Respondent denies that the parties reached agreement on a
contract during the December 8 bargaining session.
All the negotiations took place at the Union’s premises. Dur-
ing the course of bargaining, the chief negotiator for the Union
was Business Representative Bob Koerner. He was accompa-
nied by the shop steward, Eddie Ford, and union member Matt
Urlacher; however, during the December 8 session, Ford, who
had sustained an injury, was replaced by union member Mark
Weber. The Respondent was represented by Roger Noel, the
Respondent’s owner, Justin Noel, vice-president, Sam Brack-
ney, plant manager, Larry Estes, chief financial officer, vice-
president, and secretary, and Cindi Zimmerman, treasurer, alt-
hough not all of these individuals were present at all the negoti-
ating sessions. The record does not reflect whether there was a
chief negotiator designated by the Respondent.
Business Representative Koerner took notes at each bargain-
ing session. The notes were introduced into evidence. Koerner
testified that Zimmerman and other members of the Respond-
ent’s negotiating team took notes at various sessions. Mark
Weber testified, infra, that he observed Zimmerman taking
notes at the December 8 session.
The essential sticking points during negotiations involved
wage and pension issues.2 All other matters had been resolved.

1 All dates or time periods hereinafter are within 2010, unless other-
wise specified.
2 During negotiations, the Respondent and Union agreed to permit
the employees to decide whether to remain with the Union’s pension
trust or to forego the Union’s pension trust in favor of the Respondent’s
pension plan. A vote was taken, apparently sometime between the
October 26 and November 15 bargaining sessions, and the employees
voted to remain with the Union’s pension trust.
NOEL CANNING 19
As testified to by Koerner and Weber, agreement was reached
on December 8 that the Union would take back two
wage/pension proposals to the unit employees for a secret-
ballot vote; that the Union and Respondent would be bound by
the outcome of the vote;3 and that subject to the outcome of the
vote, an agreement had been reached.
Koerner testified that on December 8, after other proposals
were discussed, the Union countered with a proposal of a 2-
year agreement providing for a 45-cents-per-hour increase for
each of the 2 years, with the employees to determine by vote
how much of the wage increase they wanted to divert to the
Union’s pension plan; further, the Respondent would continue
to fully pay for the employees’ medical insurance through the
Respondent’s medical plan. And, in addition, the employees
would receive a bonus of $485 ($380 after taxes) to compensate
them for the length of time it had taken to reach a successor
agreement.
Koerner testified that the Respondent countered with 40
cents per hour for each year, also with the foregoing under-
standings regarding the bonus and medical insurance. Alt-
hough the Union was agreeable to the Respondent’s counter-
proposal, the Respondent believed the employees would be
better off and would be putting more money in their pockets if
they accepted an earlier offer proposed by the Respondent.
This offer provided that the employees be required to contribute
to a portion of their medical insurance; that for the first year of
the contract they would receive a wage increase of 78 cents per
hour, and an additional 12 cents per hour for the Union’s pen-
sion trust; and that for the second year of the contract they
would receive a wage increase of 33 cents per hour, with no
additional amount for the Union’s pension trust.
Koerner then proposed that the employees vote on each of
the alternative proposals as “A” and “B” proposals. This was
agreeable to the Respondent. Koerner agreed the Union would
remain neutral and would not state a preference for either pro-
posal. It was further understood and agreed that whichever
proposal was selected by the employees, the bonus of $485
($380 after taxes) would remain the same. The December 8
meeting ended, according to Koerner, when the parties shook
hands and Koerner and Zimmerman agreed that Zimmerman
would forward to him an email setting forth the understanding
they had reached.
Weber, a current employee, has worked for the Respondent
for 32 years. As noted, he was substituting for Shop Steward
Ford at the December 8 session, the first bargaining session he
had attended. Weber testified he “was there as a witness just to
take down notes basically and then go back to the Plant and tell
everybody how it had gone.” Weber testified that when an
agreement had been reached at that session he wrote down what
had been agreed to and went over the items “point by point”
with Zimmerman “right at the very end to make sure that I had
everything correct in my mind about the two proposals I was
going to take back.” He explained this to the group, namely,
that he had to make sure he had everything right, and reiterated
to the group what had been agreed upon. Weber testified that

3 According to Koerner, the Union was to remain neutral prior to the
vote and not advocate its position.
Zimmerman “agreed with everything” step by step, stating
“that’s correct” as Weber reviewed from his notes each compo-
nent of the “final two proposals that the Company and Bob
[Koerner] had ironed out to take back to the employees for
them to decide which of either they wanted to do and accept or
not.”
Weber further testified that after he got Zimmerman’s con-
firmation that he “had everything down correctly,” Roger Noel
said he (Noel) was confused about whether the starting date of
the new contract would be October 1 or November 1. Both
Weber and Zimmerman simultaneously said “October 1,” and
Noel said, “then let’s do it.” And, according to Weber, “that
was the end . . . we were done.” Plant Manager Brackney nod-
ded in agreement, and no one voiced any objections to the
agreed upon terms as reiterated by Weber and confirmed by
Zimmerman. CFO Estes said, “[W]ell, write it up and get it
sent over.” Weber thanked everyone for letting him be a part of
the process, and was the first to leave.
Weber’s notes of the agreement, introduced into evidence,
include the following: “Oct. 1, 2 year contract, Negotiations
begin in September after Labor Day.” The latter reference,
according to Weber, concerns the next set of negotiations for
the succeeding contract beginning in 2012. In this regard, We-
ber testified he asked Zimmerman whether the parties could
begin the next set of negotiations while the contract was still in
effect in order to avoid the instant awkward situation of begin-
ning negotiations after the expiration of the contract. Zimmer-
man said, according to Weber, that we could start negotiations
“right after Labor Day and by October 1st [2012] we could
have a new contract ready to go and so we wouldn’t be in this
same boat again.”
During the course of negotiations, according to Weber, Rog-
er Noel twice “threw up his hands and said if you just get out of
the Union, I’ll give you anything you want.” On one occasion
Brackney, and perhaps others on the Respondent’s negotiating
team, said to Noel, “you can’t say that,” and Noel said, “I
know I can’t say that—this guy—pointing at Bob Koerner
there—he said this guy will slap a lawsuit on me . . . something
to that regard.” On the second occasion, according to Weber,
Brackney again told Noel he couldn’t say that, and Noel re-
plied, “oh, I know that—I didn’t mean it.” 4
Although there is some minor variance in the testimony of
Koerner and Weber,5 their testimony is consistent regarding the
terms of the agreement and how it was to be voted on by the
unit employees; and the notes they each took are consistent
with this understanding.
On the following workday morning, December 9, in the
lunchroom, in the presence of Plant Manager Brackney, Weber

4 Koerner also testified that Brackney cautioned Noel about making
these statements; however, on each occasion Noel simply responded, “I
know.” Unlike Weber, Koerner did not testify that Noel said he didn’t
mean it. The Respondent’s witnesses testified that Noel stated some-
thing to the effect that the employees would be better off without the
Union.
5 For example, Koerner testified that Zimmerman recounted the
terms of the agreement to Weber, whereas Weber testified that he re-
counted each term of the agreement to Zimmerman who replied, “that’s
correct.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20
was explaining the terms of the two proposals to the employees
at work. The employees, according to Weber, very much liked
the “40–40” proposal as it came to be known. At some point
that morning, Weber and Brackney agreed that they were both
very happy that “it was all over” because the employees had
been without a contract for quite some time. Brackney said,
“You guys got a good deal.” Weber agreed.
Later that day, according to Weber, he and Brackney talked
about the “retro check pool”—the employees would each put in
$10 and the highest poker hand, derived from the check num-
bers on the retroactive checks to be paid to the employees to
compensate them for the lost wages during the course of bar-
gaining, would win the pool.
Apparently on the same day, Weber learned from Koerner
that Roger Noel was changing his mind regarding the agree-
ment. On that day Weber went around the plant telling em-
ployees that Roger Noel was backing off on the agreement.
While he was talking with two employees, Brackney happened
to come by and Weber reviewed the terms of the “40-40” pro-
posal with the three of them. Weber said to Brackney, “You
remember now Sam when I asked Cindi [Zimmerman]—I have
to get this all right and everything and Sam completed my sen-
tence for me. He said yes, you had to get it all right because
you had to take it back to the guys the next day and be able to
tell them what it was.” Weber said that Roger Noel was now
changing his mind, and Brackney said he did not know why
Roger Noel would change his mind.
As noted above, Koerner testified that at the conclusion of
the December 8 negotiating session, he asked Zimmerman to
email to him the agreement they had just reached, and shook
hands with each member of the Respondent’s negotiating team.
He also asked if he could use the Respondent’s conference
room to conduct the vote of the unit members. It was agreed
that the room would be available to the Union for the vote.
Koerner’s notes of the session state, inter alia, “Company will
send typed version of (TA).”6
On the following day, December 9, Zimmerman sent
Koerner an email entitled ”Proposal,” which differed signifi-
cantly from the terms of the Union’s preference set forth above:
the 40-cent-per-hour increase for each of the 2 years of the
agreement remained the same, but for each of the 2 years the
“Pension contribution [was] not to exceed $.10 of the $.40.”
Nothing was said about the Respondent’s alternative prefer-
ence.
On December 10, in the morning, Koerner sent Zimmerman
an email stating that the attachment to the email “shows what
was Tentatively Agreed on December 9,7 (sic) 2010. We need
get this resolved prior to Wednesday. Mark [Weber] and Matt
[Urlacher] have been explaining to the other employees the
proposals.” The attachment to the email sets forth the Union’s
understanding that “The wage pension diversion for each year

6 Koerner’s testimony is not inconsistent with that of Weber regard-
ing who would send the typed version of the agreement to whom, as
Weber had left the meeting before its conclusion; it is probable that
both versions are correct.
7 This date is obviously incorrect as no further negotiations took
place after December 8.
was proposed as $.40 per hour with the employees diverting
whatever portion to pension which would be voted by the
group.”
On the morning of December 10, Koerner posted a “Notice”
at the Respondent’s premises to “All Bargaining Unit Mem-
bers” announcing a “Vote for Contract” on Wednesday De-
cember 15, 2010, at the Respondent’s “Front Meeting Room.”
On the evening of December 10, Koerner spoke by tele-
phone with Roger Noel; Zimmerman and Estes were also lis-
tening on a speakerphone. It was a confrontational conversa-
tion. Koerner told Noel the Respondent’s foregoing email pro-
posal was not what was agreed to, and that the $.10 pension
amount had never even been discussed at the table. Noel, ac-
cording to Koerner, simply replied that was the amount he was
going to allow the employees to put in the pension trust. Noel
also said, according to Koerner, “that it [the agreement] wasn’t
in writing and it was his company and he had the right to make
the decisions.” Koerner disagreed, saying it was not Noel’s
right to renege on the tentative agreement, and that the Union
intended to go ahead with the ratification vote as agreed upon.8
The ratification vote was conducted on December 15, as
scheduled. The unit employees overwhelmingly approved the
“40–40” proposal by a vote of 37 to 2, voting to divert the total
amount of the wage increase into the pension trust. Immediate-
ly after the vote Koerner walked across the street from the plant
meeting room to the corporate offices, and showed the tally of
ballots to Roger Noel and Brackney. Noel wadded up the tally
of ballots and made some “rude comment” as he threw it back
at Koerner.
On the following day Koerner received two letters from
Roger Noel. One stating, inter alia, “It is not appropriate to
vote an offer that was not made by the employer,” and further
stating that the parties were at impasse. The second letter ad-
vised Koerner to refer all further communications in writing to
Respondent’s attorney.
Cynthia Zimmerman, Respondent’s treasurer, testified that
during the 2-1/2-hour December 8 negotiating session there
was at first some initial confusion over the cost to employees

8 The Respondent points out in its brief some rather confusing lan-
guage contained in Koerner’s Board affidavit, as follows: “I told Roger
[Noel] that I was voting the contract on Wednesday and that I would
vote the contract that we TA’d during the December 8 meeting noting
(sic) different from that TA.” (Emphasis supplied.) The Respondent
maintains that this language should be interpreted to mean that Koerner
intended to have the employees vote on something “different” than
what he believed had been agreed upon on December 8. Koerner, when
questioned about this, believed the language in his affidavit was cor-
rect, and that the “difference” between what was TA’d and voted upon
was simply a matter of arithmetic. Thus, he explained the notes he took
of the agreement on December 8, state, regarding the retroactive bonus,
“Retro 173.3 x 7 months [x 40 cents per hour].” This translates to $380
after taxes, a fixed amount on which the parties had agreed and which
was a component of either alternative proposal. While Koerner so testi-
fied, I believe it is more likely that the quoted language also confused
Koerner, and that the affidavit simply contained a spelling error. That
is, it should state, “. . . nothing different from TA” rather than “noting
different from TA.” In either event, there is no showing that the em-
ployees voted on anything different from what had been agreed to on
December 8.
NOEL CANNING 21
should they contribute to the medical plan, as proposed by the
Respondent. Then, according to Zimmerman the parties “kind
of talked back and forth and kind of reached what might’ve
been common ground. Then there was (sic) still some issues to
work out. Roger [Noel] was tired, we were all confused.” 9
Then Mark Weber asked Zimmerman some “questions,” as
follows:

He went through the 40 cents an hour and whether or not the
employees could determine how much went into the pension.
Then we went over the second proposal, which was a larger
amount of money per hour and they [the employees] contrib-
uted to the medical expense.

In response to Weber’s questions, Zimmerman simply replied,
“Yes that’s what we have been talking about,” but she did not
acknowledge to Weber that an agreement had been reached.
After Weber left, according to Zimmerman, “We were talking
about this and that. Then the meeting just kind of ended” and
“We said we would go back and write up our offer. When we
left, we all shook hands and Bob said, ‘Put it in writing. We
said okay.”’ According to Zimmerman—and also according to
Brackney and Estes— only Roger Noel had the authority to say
yes or no on behalf of the Respondent, and Noel never said
during the meeting anything to the effect that, “Yes, I agree to
the proposal that employees will be able to determine the
amount of wage increases that will be allocated to pension.”
Koerner testified that Zimmerman took notes during the bar-
gaining sessions and his affidavit specifies that he observed
Zimmerman taking notes at the December 8 session; and Weber
testified that he too observed Zimmerman taking notes during
the December 8 session. However, Zimmerman neither pro-
duced any notes nor testified that she did not take notes during
the December 8 session or any of the earlier sessions, nor oth-
erwise explained the absence of her notes.
The Respondent called Matthew Urlacher as a witness.
Urlacher, a member of the bargaining unit and of the Union’s
bargaining team, has worked for the Respondent for 41 years.
Urlacher testified that at the December 8 meeting both sides
“got a little loud . . . [and] disagreed quite a bit on . . . what they
believe is better.” After a break and the parties went back to the
table, “It was calmer. I don’t know exactly what they were
talking about when they got back. Roger and Bob were mainly
talking back and forth.” Urlacher was not asked what had been
agreed upon during the December 8 session, what the respec-
tive positions of the parties were, or what issues remained to be
resolved. Although he voted in the ratification vote, he was not
asked whether the ratification vote reflected what had been
agreed to on December 8.
Plant Manager Sam Brackney testified that shortly before the
December 8 meeting ended, Weber asked questions about
“some of the things” that had been discussed, and he wrote it
down. Zimmerman did not tell Weber that the company had

9 Zimmerman was not asked to elaborate and did not elaborate. She
was not asked to explain and did not explain the parameters of the
“common ground” that was reached regarding the parties’ respective
preferences; or what “issues to work out” remained to be resolved; or
who were “confused” and what they were confused about after the
initial confusion over the medical plan had been resolved.
“agreed” the employees could choose the amount of the wage
increase that would be diverted to the pension plan: “She did
not say agreed. She said we have discussed it.”
The meeting ended with the understanding that the Respond-
ent would “write up a proposal and present it to [the Union].”
Regarding his various conversations with Weber about the
matter, Brackney testified that the following morning he did
discuss with Weber what went on at the meeting, and “be-
lieves” he did say to Weber, “I’m glad this is almost over.”
Brackney did not testify about what he discussed with Weber
that morning, and maintains the remark that he made referred
not to any agreement reached at the meeting, but rather to the
fact that he knew the Respondent was going to present to the
Union a new proposal, “and I knew what the offer was going to
be from the company and I knew the employees would accept
that offer.” In this regard, Brackney testified that he had been
made aware of this new offer by an email sent to him by Zim-
merman. However, when the email from Zimmerman was
produced by the Respondent, upon the General Counsel’s de-
mand at the hearing, showing that the email from Zimmerman
was a copy of the email Zimmerman had sent to Koerner at
4:02 p.m. and forwarded to Brackney at 4:11 p.m., Brackney
recanted his prior testimony, said he had been mistaken, and
that he had learned about the proposal during a face-to-face
conversation with Zimmerman that morning prior to his con-
versation with Weber. Zimmerman told him what the proposal
was going to be and asked him if he thought the employees
would accept it, and Brackney told her, “Yeah, I’m pretty sure
they will accept it.” Brackney did not testify why he thought
the Union would accept such an offer.
Brackney was not asked about his later conversation with
Weber that afternoon regarding the “retro check pool,” as testi-
fied to by Weber, supra.
The following day, according to Brackney, he and Weber did
have a further conversation about the matter. They were talking
about what Weber “believed” the December 8 offer was, and
what Brackney “knew” the new offer was. Weber thought the
“40–40” offer gave the employees the choice of determining
how much went into the pension trust fund. Brackney simply
told Weber that was not the Respondent’s offer. However, he
did not tell Weber what the Respondent’s new offer was be-
cause he “wasn’t 100 sure, but I had not seen it, but I knew
what it was.” However, as noted, Brackney had earlier testified
that he had in fact seen the new offer the day before and “knew
the employees would accept that offer.”
Roger Noel testified that during the December 8 negotia-
tions, “We talked about wages, we talked about pension, what’s
conversion, all kinds of things.” It appeared to Noel that
Koerner was trying to “push” the Respondent for a “commit-
ment.” Noel did not testify regarding the details or even the
nature of the “commitment,” but merely testified the Respond-
ent was not ready to make any kind of commitment to the Un-
ion. Noel did not testify about Weber’s questions to Zimmer-
man or Zimmerman’s responses to Weber. At the end of the
meeting, according to Noel, “we said we’d get back to him
[Koerner]. We’d give him a written proposal.” During the
phone conversation with Koerner on December 10, Noel said
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22
he wanted to continue negotiations with Koerner, but Koerner
refused to negotiate further.
CFO Larry Estes testified that, “We turned most of it [the
negotiations] over to Cindy [Zimmerman.]” Estes did not testi-
fy that the December 8 meeting was chaotic or disorganized or
that he didn’t know or understand what was being negotiated
during the course of the meeting. Estes did not testify regarding
Weber’s questions to Zimmerman or Zimmerman’s responses
to Weber. At the end of the meeting, Koerner said, “you guys
go back and write something up and get it back to me.” Estes
said. “yes, we will.”
On January 13, 2011, the Union sent copies of the new col-
lective-bargaining agreement,10 executed by John Parks, secre-
tary-treasurer of the Union, reflecting the terms ratified by the
unit members as discussed above. Koerner also hand delivered
an executed copy to the Respondent. To date the Respondent
has refused to execute the contract or honor the terms of the
new agreement, including the payment of the retroactive bonus
to the employees.
Analysis and Conclusions
I found Koerner and Weber11 to be highly credible witnesses,
with their contemporaneous notes of the December 8 meeting
reinforcing their mutually consistent testimony regarding the
agreement reached at that meeting. In contrast, it is significant
that none of the Respondent’s witnesses either produced notes
of the meeting or explained why no notes were available. Nor
did Zimmerman contradict Weber’s testimony that he observed
her taking notes. I therefore conclude that Zimmerman did in
fact take notes and that her notes would not support the Re-
spondent’s position that no agreement was reached.
The testimony of Noel, Zimmerman, Brackney, and Estes
was abbreviated, conclusionary, nonspecific, and unconvincing.
It is significant that none of these individuals stated what pro-
posals were in fact made by either the Respondent or the Union
during the December 8 session. Nor did they deny Weber’s
very precise testimony in which he specifically quoted Noel.
Thus, according to Weber’s testimony, at the conclusion of the
December 8 meeting, after the terms of the agreement had been
reviewed and confirmed by Weber and Zimmerman, and after it
had been further confirmed that the new contract would begin
October 1, Noel finalized this understanding and meeting of the
minds by concluding the substantive portion of the meeting
with his comment, “then let’s do it.” As noted, Weber’s recol-
lection of this colloquy stands unrebutted, and I credit Weber.

10 While there is no contention by the Respondent that the proffered
contract is inaccurate in any respect, the contract language specifies
that the contract extends from October 1, 2010, to September 30, 2013.
This is apparently incorrect, as the parties had agreed upon a two-year
term.
11 Weber, a long-time employee who was present for just that one
December 8 meeting as a replacement for the union steward, has not
been shown to harbor any bias. He was simply recruited to attend the
meeting at the last minute, in place of the injured union steward, with
the understanding that he would be a messenger and report back to the
employees what had occurred during negotiations. He explained this
role to the Respondent’s representatives, and was very careful to insure
the accuracy of the information he would relay to the employees at the
plant.
Brackney’s testimony regarding his various conversations
with Weber on December 9 and 10 is also confusing. The sce-
nario presented by Brackney regarding his discussion with
Weber on the morning of December 9 is nonsensical and obvi-
ously contrived. According to Brackney, he told Weber he,
too, was happy the matter was “almost over.” Brackney claims
he made this statement not because he was agreeing with We-
ber that an agreement had been reached, but rather because he
knew that a new proposal (of which the Union had not yet been
apprised, and which on its face was clearly inferior to the pro-
posal the Union favored during negotiations) would nonetheless
be accepted by the Union. Brackney’s purported prescience in
this regard defies credulity. Clearly, Brackney’s testimony is
false, and he made this statement to Weber because he and
Weber were of the common understanding that a new contract
had in fact been reached. I so find.
The Respondent maintains that because it strongly preferred
its own pension plan over the Union’s pension trust, or for oth-
er reasons, it would not have agreed to permit the employees to
unilaterally determine how much of any wage increase would
be diverted into the Union’s pension trust. This contention is
belied by the fact that on November 15 the Respondent made
this very proposal. Thus, the Respondent’s first wage and pen-
sion proposal, presented to the Union at the November 15 bar-
gaining session, was a written proposal as follows: 33 cents per
hour for each year of a 2-year contract, with the additional
component that “Employees to decide breakdown between
wages and pension.” Accordingly, I find no merit to the Re-
spondent’s contention.
Furthermore, given the fact that the Respondent did initiate
such a written proposal on November 15, and the Union coun-
tered at the next negotiating session on December 8 with 45
cents per year rather than 33 cents, as Koerner testified, supra,
it is reasonable to assume, again as Koerner testified, that it was
the Respondent that proposed a compromise figure of 40 cents
per hour to which the Union agreed. I so find.
The Respondent maintains that Washington State law pre-
cludes legal enforcement of verbal contractual agreements.
Whatever the parameters of Washington State law regarding
verbal contractual agreements, this matter is not subject to state
law. Under Federal law, it is clear that the verbal agreement
reached here is valid and enforceable. Once a verbal agreement
is reached by the parties, they are obligated to abide by the
terms of the agreement even though those terms have not been
reduced to writing. H. J. Heinz v. NLRB, 311 U.S. 514 (1941);
Young Women’s Christian Association (YWCA), 349 NLRB
762, 771 (2007); Sunrise Nursing Home, Inc., 325 NLRB 380,
389 (1998).
On the basis of the foregoing, I find that the December 8
bargaining session concluded with a verbal agreement and
meeting of the minds on all substantive issues of a collective-
bargaining agreement, and, in addition, on the amount of the
retroactive bonus for the unit employees. The agreement pro-
vided for the Union to conduct a vote of the unit employees to
decide which wage/pension option to adopt, and for the Union
and Respondent to be bound by the results of the vote. The vote
was conducted on December 15; the unit employees voted to
accept the “40–40” option which included the component that
NOEL CANNING 23
the employees would determine how much of the 40 cents to
divert to the Union’s pension trust; and the Union subsequently
prepared, executed, and forwarded the collective-bargaining
agreement, reflecting the terms of the ratification vote, to the
Respondent. To date the Respondent has failed and refused to
pay the employees the agreed-upon retroactive bonus, or to
execute and abide by the terms of the contract. By such conduct
I find the Respondent has violated and is violating Section
8(a)(5) and (1) of the Act as alleged. Young Women’s Christian
Association (YWCA), supra.
The complaint also alleges that the statements by Roger Noel
during the December 8 bargaining session violate Section
8(a)(1) of the Act. I credit Weber, who testified that during the
negotiating session Noel twice said, apparently to Urlacher and
Weber who were the only employees present, “If you just get
out of the Union, I’ll give you anything you want.” On the first
occasion Noel acknowledged that such a statement might be
unlawful, and on the second occasion he stated he didn’t mean
it. I conclude that Noel’s timely and specific retraction of his
comments is sufficient to warrant a dismissal of this allegation
of the complaint. Siemens Building Technologies, Inc., 345
NLRB 1108, 1115 (2005). Accordingly, this allegation of the
complaint is dismissed.
CONCLUSIONS OF LAW AND RECOMMENDATIONS
1. The Respondent Noel Canning, A Division of the Noel
Corporation is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(5) and (1) of the
Act as alleged in the complaint.
4. The Respondent has not violated Section 8(a)(1) of the
Act as found herein.
THE REMEDY
Having found that the Respondent has violated and is violat-
ing Section 8(a)(5) and (1) of the Act, I recommend that it
cease and desist therefrom and from in any other like or related
manner interfering with, restraining, or coercing its employees
in the exercise of their rights under Section 7 of the Act, and
that it take certain affirmative action designed to remedy the
unfair labor practices and to effectuate the policies of the Act. I
shall recommend that the Respondent forthwith sign the collec-
tive-bargaining agreement embodying the terms of the agree-
ment between it and the Union as found herein, and give effect
to such agreement retroactive to October 1, 2010. I shall fur-
ther recommend that the Respondent make whole its employees
and the union pension trust fund, with interest, for the amounts
that would have would have been paid into the trust fund from
October 1, 2010. Further, I shall recommend that the Respond-
ent pay to its employees the agreed-upon amount the employees
would have received as a retroactive bonus, with interest. Final-
ly, I shall recommend the posting of an appropriate notice,
attached hereto as “Appendix.”
[Recommended Order omitted from publication.]