SMI/DIVISION OF DCX-CHOL ENTERPRISES, INC.

National Labor Relations Board - Board Decisions

Dec 15, 2017

365 NLRB No. 152 (N.L.R.B. 2017)

365 NLRB No. 152
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.
SMI/Division of DCX-CHOL Enterprises, Inc. and
Indiana Joint Board, Retail, Wholesale, De-
partment Store Union, United Food & Commer-
cial Workers Union, Local 835, A/W Retail,
Wholesale, Department Store Union, United
Food & Commercial Workers Union. Cases 25–
CA–117090, 25–CA–117093, 25–CA–117097, 25–
CA–117151, 25–CA–117254, 25–CA–120437, and
25–CA–125968
December 15, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
On September 23, 2014, Administrative Law Judge
Geoffrey Carter issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief, and
the Respondent filed an answering brief. The Respondent
filed cross-exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply 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 af-
firm the judge’s rulings, findings,1 and conclusions,2 to

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 making his credibility determinations and finding that the Re-
spondent unlawfully threatened employees, the judge relied on Relco
Locomotives, Inc., 358 NLRB 298 (2012). In determining that the Re-
spondent should not be required to read the notice to employees during
work time, the judge relied on the standard set forth in Marquez Bros.
Enterprises, 358 NLRB 509 (2012). Both of these cases were decided
by panels that included two persons whose appointments to the Board
were held invalid. See NLRB v. Noel Canning, 134 S.Ct. 2550 (2014).
However, a properly constituted Board has since reaffirmed the deci-
sion in Marquez Bros. Enterprises. See 361 NLRB 1375 (2014), enfd.
650 F. App’x 25 (D.C. Cir. 2016). In addition, prior to the issuance of
Noel Canning, the United States Court of Appeals for the Eighth Cir-
cuit enforced the Board’s Order in Relco Locomotives, see 734 F.3d
764 (8th Cir. 2013), and there is no question regarding the validity of
the court’s judgment.
2 No party excepted to the judge’s dismissal of allegations that the
Respondent violated Sec. 8(a)(1) by threatening employees with job
loss and plant closure if they did not approve the Respondent’s pro-
posal to change employee pay dates, and Sec. 8(a)(5) by dealing direct-
amend the remedy, and to adopt the recommended Order
as modified and set forth in full below.3
We agree with the judge, for the reasons he states, that
the Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally implementing a $100 employee bonus
on November 4, 2013. We also agree with the judge,
notwithstanding the arguments of our dissenting col-
league, that the Respondent violated the Act when it (1)
denied a union representative access to its facility on
August 22, 2013; (2) threatened, on October 16, 2013,
that it would divide into two companies, one union and
one nonunion; (3) withdrew recognition from the Union
on January 3, 2014; and (4) unilaterally changed em-
ployee pay dates in April 2014 without notice and oppor-
tunity to bargain with the Union.
1. Union Access
On August 9, 2013,4 the Respondent became the suc-
cessor employer to Stuart Manufacturing, Inc. and, as the
Respondent admitted in its answer to the complaint, in
early August it adopted and agreed to abide by its prede-
cessor’s collective-bargaining agreement (CBA) with the
Union. The Respondent stated that it would be requesting
various modifications to the CBA, but did not indicate at
that time that it desired any change in the Union’s access
to employees at the facility.
On August 22, Union Representative David Altman
participated in the monthly grievance meeting at the Re-
spondent’s facility. Following that meeting, Altman
asked if he could meet with employees in the break
room. Gerald Pettit, Respondent’s Vice President and
General Manager, refused. As found by the judge, the
Respondent’s predecessor, Stuart Manufacturing, had
maintained a 7-year past practice of allowing union rep-
resentatives to access the employee break room upon
request after monthly grievance meetings, and, as stated,
the Respondent had not given any notice that it would
discontinue that practice. In those circumstances, the
judge found, and we agree, that the Respondent’s refusal
to allow Altman access violated Section 8(a)(5) and (1)
of the Act.
The Respondent was not obligated to adopt its prede-
cessor’s CBA with the Union as its initial terms and con-
ditions of employment. But when the Respondent volun-
tarily chose to do so, Board precedent is clear that, as a
matter of law, it also adopted the existing practices that
had informed and given meaning to the provisions of the

ly with employees by soliciting them to resign from the Respondent
and begin working for a nonunion company.
3 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language for the violations found. We shall
substitute a new notice to conform to the Order as modified.
4 All dates are in 2013 unless specified otherwise.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
CBA as its initial terms and conditions of employment.
See, e.g., Pepsi-Cola Distributing Co., 241 NLRB 869
(1979), enfd. 646 F.2d 1173 (6th Cir. 1981), cert. denied
456 U.S. 936 (1982) (finding that successor employer
that had adopted its predecessor’s collective-bargaining
agreement unlawfully discontinued predecessor’s prac-
tice of paying a year-end bonus, notwithstanding that the
bonus was not reflected in the agreement and that the
successor only became aware of it after adopting the
agreement). Like the successor employer in Pepsi-Cola,
the Respondent here voluntarily adopted its predeces-
sor’s CBA. The successor employer in Pepsi-Cola as-
sured employees that “working conditions would remain
the same.” Id. at 870. Here, the Respondent’s Vice Presi-
dent of Human Resources, Carol Goods-North, gave a
letter to the Union on August 19, which was the Re-
spondent’s first correspondence with the Union follow-
ing its acquisition of Stuart Manufacturing, which stated
that the Respondent “would request various modifica-
tions” (emphasis added) to its predecessor’s CBA. Thus,
the Respondent implicitly indicated that it would not
unilaterally set any new terms and conditions of em-
ployment. The Respondent later confirmed that it had not
set any new terms and conditions of employment when
Goods-North explicitly stated on August 29 in written
correspondence with Altman that the Respondent would
be requesting a change in pay dates, but that all other
work rules would remain the same. And while ignorance
of past practice by a successor is no defense to its unilat-
eral discontinuation of a past practice,5 holding the Re-
spondent to Stuart Manufacturing’s past application of
the union access provision is particularly appropriate in
this case as Goods-North had been Stuart Manufactur-
ing’s Director of Human Resources. In that capacity, she
had not only been aware of Stuart Manufacturing’s prac-
tice of routinely granting union access requests after
monthly grievance meetings, she personally had granted
many of those requests. Thus, Goods-North was aware of
the relevant practice at all material times.
Our dissenting colleague—advancing an argument not
made by the Respondent—insists that the Respondent
did not change a term or condition of employment when
it denied Union Representative Altman’s access request.
In his view, the Respondent, as a Burns successor,6 was
free to set initial terms and conditions of employment,
the Respondent’s adoption of the CBA constituted its
setting of initial terms, and those initial terms included
only the express terms of that agreement, not any of the
preexisting practices that had developed under those

5 Rosdev Hospitality, Secaucus, LP, 349 NLRB 202 (2007).
6 NLRB v. Burns International Security Services, 406 U.S. 272
(1972).
terms. He thus concludes that the Respondent’s denial of
Altman’s access request conformed to Section 14.2 of
that agreement, which stated that a Union representative
would be granted admission “after his request has been
granted by the senior management.”
Because “this argument is raised for the first time by
our colleague in dissent, it is not properly before the
Board.” Security Walls, Inc., 365 NLRB No. 99, slip op.
at 4 (2017).7 But, even if we were to consider it, our col-
league’s conclusion is precluded by Board law, and we
thus have no difficulty rejecting it. Our colleague unper-
suasively quarrels with our reading of Pepsi-Cola, supra,
a decision he declines to endorse, but we choose to fol-
low as precedent. Further, contrary to our colleague’s
assertion, nothing in our holding is inconsistent with the
Supreme Court’s decision in Burns, supra. We have not
imposed its predecessor’s past practices on the Respond-
ent; rather, we have held that when the Respondent vol-
untarily chose to adopt its predecessor’s collective-
bargaining agreement, it necessarily chose to adopt the
past practices developed under that agreement as initial
terms and conditions of employment, which it was not
free to change unilaterally thereafter.8
In this context, our colleague’s distinction between
contract and the practice under the contract is untenable.
There is no suggestion in the record that the Respondent
itself intended to distinguish between the CBA and past
practice, much less that it communicated such a distinc-
tion to employees, when it set the initial terms and condi-
tions of employment.9 (Indeed, quite to the contrary, the
Respondent subsequently confirmed that—with specified
exceptions—all other work rules would remain the
same.) Under our colleague’s view, a successor employer
that adopted its predecessor’s contract in establishing
initial terms and conditions of employment would never-
theless be free to change, at any subsequent time, any
pre-existing term and condition of employment that was
not contained in the contract or that was not expressly
adopted along with the contract. Not only is this contrary
to law, but the rule advanced by our colleague is a recipe
for creating labor unrest, if we appropriately factor in the

7 See also UPS Supply Chain Solutions, Inc., 364 NLRB No. 8, slip
op. at 2 (2016); Avne Systems, Inc., 331 NLRB 1352, 1354 (2000).
8 Despite our colleague’s insistence, neither Sec. 8(d) of the Act, nor
the Supreme Court’s decision in H.K. Porter Co. v. NLRB, 397 U.S. 99
(1970), have any bearing here. We are not imposing any contractual
terms; rather, we hold only that the Respondent could not alter a past
practice without first giving the Union notice and an opportunity to
bargain, as required by Sec. 8(a)(5) of the Act.
9 See generally 301 Holdings, LLC, 340 NLRB 366, 367 (2003)
(successor unlawfully changed initial terms and conditions of employ-
ment that it was free to set, when it made change that was not an-
nounced to employees initially).
SMI/DIVISION OF DCX-CHOL ENTERPRISES, INC. 3
perspective of employees. Golden State Bottling Co. v.
NLRB, 414 U.S. 168, 184–185 (1973). When an em-
ployer voluntarily adopts an existing collective-
bargaining agreement, employees would understand this
to mean a continuation of existing terms and conditions
of employment (both contractual and noncontractual).
Actions by an employer that are contrary to employees’
legitimate expectation may cause employees to react
accordingly, resulting in labor strife. Id. That result is
precisely what the labor-law successorship doctrine aims
to avoid. See Fall River Dyeing & Finishing Corp. v.
NLRB, 482 U.S. 27, 43–44 (1987).
2. Threat that Stuart Manufacturing would be Nonunion
Stuart Manufacturing was a minority-owned business
and qualified as a “HUB zone” entity,10 which made it
eligible to work on certain contracts. Because the Re-
spondent did not meet either of those criteria, Lionel To-
bin, the owner of Stuart Manufacturing, proposed to op-
erate Stuart Manufacturing as a separate company that
would compete for contracts for which the Respondent
did not qualify. Tobin thus remained the owner of Stuart
Manufacturing, which operated as a shell company, with
no assets beyond the funds in its bank account. Tobin
continued to use his old office space and telephone at the
Respondent’s facility and began approaching individual
employees, including employee Jamarcus Tinker, to de-
termine if they would be interested in leaving the Re-
spondent to work for Stuart Manufacturing.
On October 16, 2013, Goods-North spoke by phone
with Altman and Tinker for their monthly grievance
meeting. After the grievance discussion had concluded,
Altman asked Goods-North for more information about
the sale of the company, specifically whether the Re-
spondent and Stuart Manufacturing were still considering
having two companies. Goods-North said that the Re-
spondent and Stuart Manufacturing were still considering
having two companies and that both would be located in
the Respondent’s facility. Altman then asked whether
Goods-North had heard that Tobin had been soliciting
employees of the Respondent to come work for Stuart
Manufacturing, and Goods-North told him that Tobin
needed employees who live in the HUB zone so that he
could continue to handle certain contracts. Finally, Alt-
man asked whether the Respondent and Stuart Manufac-
turing would be under the same or different CBAs.
Goods-North said that the Respondent would operate
under the CBA, but Stuart Manufacturing would not be-

10 Tobin testified that a business qualifies as a “HUB zone” entity if
it is located in an area targeted for economic development and at least
35 percent of the business’ employees reside in that area.
cause it would be nonunion. The judge found Goods-
North’s statement was an unlawful threat. We agree.
Section 8(a)(1) of the Act provides that it is an unfair
labor practice for an employer “to interfere with, restrain,
or coerce employees in the exercise of the rights guaran-
teed in Section 7.” In determining whether a statement
violates Section 8(a)(1), the Board assesses the objective
tendency of the statement to coerce employees. Miller
Electric Pump & Plumbing, 334 NLRB 824, 825 (2001).
The employer need not be threatening his own employ-
ees for the threat to be unlawful. A threat directed at em-
ployees of another employer can also be unlawful. “The
prohibition [contained in Section 8(a)(1)] is not limited
to interference with the rights of his employees.” See
New York New York Hotel & Casino, 356 NLRB 907,
911 (2011) (emphasis in original), enfd. 676 F.3d 193
(D.C. Cir. 2012), cert. denied 133 S.Ct. 1580 (2013). As
the judge found, employees would have reasonably un-
derstood Goods-North to be saying that, following the
finalization of the arrangements, the Respondent would
be dividing into two entities with the reconstituted Stuart
Manufacturing operating out of the Respondent’s facility
and hiring some of the Respondent’s employees and that
union membership would be incompatible with employ-
ment at the reconstituted Stuart Manufacturing. As the
judge noted, the Board has held that “[w]hen an employ-
er tells applicants that the company will be nonunion
before it hires its employees, the employer indicates to
the applicants that it intends to discriminate against the
seller’s employees to ensure its nonunion status. Thus,
such statements are coercive and violate Section 8(a)(1).”
Kessel Food Markets, 287 NLRB 426, 429 (1987), enfd.
868 F.2d 881 (6th Cir. 1989), cert. denied 493 U.S. 820
(1989). The fact that the reconstituted Stuart Manufactur-
ing never got off the ground does not detract from how
employees would have reasonably understood Goods-
North’s statement at the time she made it. Furthermore,
the judge found that the Respondent and Tobin were ne-
gotiating over which contracts each would handle, and
Tobin approached approximately 15 of the Respondent’s
employees to determine if they would be interested in
leaving the Respondent to work for the reconstituted Stu-
art Manufacturing. Thus it is possible that Stuart itself
would have been a successor employer with an obliga-
tion to recognize and bargain with the Union.
Accordingly, we reject our dissenting colleague’s view
that the judge’s conclusion is based on the implicit (and
mistaken) assumption that the Respondent and Stuart
Manufacturing constituted a single enterprise and his
assertion that Goods-North’s statement that Stuart Enter-
prises would be a nonunion company was a truthful
statement that does not violate Section 8(a)(1).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
3. Withdrawal of Recognition
On January 3, 2014, the Respondent withdrew recogni-
tion from the Union. The judge correctly found that the
Union was entitled to a 6-month period of bargaining,
during which the successor bar doctrine precluded the
Respondent from unilaterally withdrawing recognition
from the Union based on a claimed loss of majority sup-
port. UGL-UNICCO Service Co., 357 NLRB 801 (2011).
Our dissenting colleague would reject the successor bar
doctrine and return to MV Transportation, 337 NLRB
770 (2002). Contrary to our dissenting colleague, and for
the reasons stated in FJC Security Services, Inc., 360
NLRB 929, 929 (2014), we see no basis for departing
from the successor bar doctrine.
4. Unilateral Change to Pay Date
At the end of March 2014, the Respondent unilaterally
changed the pay dates of bargaining unit employees
without notifying the Union or giving the Union the op-
portunity to bargain about the change. The judge correct-
ly found this unilateral change violated Section 8(a)(5)
and (1). As noted above, the Respondent’s withdrawal of
recognition was unlawful, as was its unilateral change to
employee pay dates. See Abernathy Excavating, 313
NLRB 68, 69 (1993) (finding respondent violated Sec-
tion 8(a)(5) and (1) by, among other things, unilaterally
changing employees’ payday from Thursday to Friday).
Because he would find the withdrawal of recognition
lawful, our dissenting colleague also disagrees with the
judge’s finding that this unilateral change was unlawful.
We necessarily reject his conclusion.
AMENDED REMEDY
Having found that the Respondent has engaged in un-
fair labor practices, we shall order it to cease and desist
and to take certain steps to effectuate the policies of the
Act. Having adopted the judge’s findings that the Re-
spondent violated Section 8(a)(5) and (1) by withdrawing
recognition from the Union and unilaterally changing
terms and conditions of employment, we shall order the
Respondent to (1) recognize and, on request, bargain in
good faith with the Union, and (2) rescind any or all of
the unilateral changes and restore the previously existing
terms and conditions of employment. To the extent that
the unlawful unilateral changes have improved the terms
and conditions of unit employees, the Order set forth
below shall not be construed as requiring or authorizing
the Respondent to rescind such improvements unless
requested to do so by the Union.
We shall further order the Respondent to make unit
employees and former unit employees whole for any
losses suffered as a result of those unilateral changes in
the manner prescribed in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
with interest at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010).
We shall also order the Respondent to compensate all
affected unit employees and former unit employees for
the adverse tax consequences, if any, of receiving lump-
sum backpay awards and to file with the Regional Direc-
tor for Region 25, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board order,
a report allocating the backpay awards to the appropriate
calendar years for each employee. AdvoServ of New Jer-
sey, Inc., 363 NLRB No. 143 (2016).
The judge included an affirmative bargaining provi-
sion in his Order to remedy the Respondent’s unlawful
withdrawal of recognition. For the reasons set forth in
Caterair International, 322 NLRB 64 (1996), we agree
that this remedy is warranted. We adhere to the view that
an affirmative bargaining order is “the traditional, appro-
priate remedy for an 8(a)(5) refusal to bargain with the
lawful collective-bargaining representative of an appro-
priate unit of employees.” Id. at 68.
In several cases, however, the U.S. Court of Appeals
for the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Bldg. Material Corp. v. NLRB, 117 F.3d 1454, 1462
(D.C. Cir. 1997); Exxel/Atmos, Inc. v. NLRB, 28 F.3d
1243, 1248 (D.C. Cir. 1994). In Vincent, supra, the court
summarized its requirement that an affirmative bargain-
ing order “must be justified by a reasoned analysis that
includes an explicit balancing of three considerations: (1)
the employees’ § 7 rights; (2) whether other purposes of
the Act override the rights of employees to choose their
bargaining representatives; and (3) whether alternative
remedies are adequate to remedy the violations of the
Act.” Id. at 738.
Although we respectfully disagree with the court’s re-
quirement for the reasons set forth in Caterair, supra, we
have examined the particular facts of this case as the
court requires and find that a balancing of the three fac-
tors warrants an affirmative bargaining order.
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the Re-
spondent’s withdrawal of recognition and resulting re-
fusal to bargain with the Union for a successor collec-
tive-bargaining agreement. At the same time, an affirma-
tive bargaining order, with its attendant bar to raising a
question concerning the Union’s continuing majority
status for a reasonable time, does not unduly prejudice
SMI/DIVISION OF DCX-CHOL ENTERPRISES, INC. 5
the Section 7 rights of employees who may oppose con-
tinued union representation because the duration of the
order is no longer than is reasonably necessary to remedy
the ill effects of the violation. Further, to the extent such
opposition exists, it may be at least in part the product of
the Respondent’s unfair labor practices.
(2) An affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining in the hope
of further discouraging support for the Union. It also
ensures that the Union will not be pressured by the pos-
sibility of a decertification petition or by the Respond-
ent’s withdrawal of recognition to achieve immediate
results at the bargaining table following the Board’s reso-
lution of its unfair labor practice charges and issuance of
a cease-and-desist order.
(3) A cease-and-desist order, alone, would be inade-
quate to remedy the Respondent’s refusal to bargain with
the Union in these circumstances, because it would per-
mit another challenge to the Union’s majority status be-
fore the taint of the Respondent’s unlawful withdrawal of
recognition has dissipated, and before the employees
have had a reasonable time to regroup and bargain
through their representative in an effort to reach a suc-
cessor collective-bargaining agreement. Such a result
would be particularly unjust in circumstances such as
those here, where the Respondent’s withdrawal of recog-
nition would likely have a continuing effect, thereby
tainting any employee disaffection from the Union aris-
ing during that period or immediately thereafter. We find
that these circumstances outweigh the temporary impact
the affirmative bargaining order will have on the rights
of employees who oppose continued union representa-
tion.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the allegations in this
case.
ORDER
The National Labor Relations Board orders that the
Respondent, SMI/Division of DCX-CHOL Enterprises,
Inc., Fort Wayne, Indiana, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from Indiana Joint Board,
Retail, Wholesale, Department Store Union, United Food
& Commercial Workers, Local 835 (the Union) and fail-
ing and refusing to recognize and bargain with the Union
as the exclusive collective-bargaining representative of
the bargaining unit employees.
(b) Unilaterally denying union officials access to the
employee break room at Respondent’s facility after em-
ployee grievance meetings without notifying the Union
and giving it an opportunity to bargain.
(c) Threatening employees that Respondent will divide
into two separate companies, one union and one nonun-
ion.
(d) Unilaterally changing employees’ terms and condi-
tions of employment by announcing and implementing a
$100 bonus based on productivity without notifying the
Union and giving it an opportunity to bargain.
(e) Unilaterally changing employee pay dates without
notifying the Union and giving it an opportunity to bar-
gain.
(f) 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) Recognize and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
the unit employees concerning terms and conditions of
employment, and, if an understanding is reached, em-
body the understanding in a signed agreement. The unit
is as follows:
[A]ll full-time and regular part-time Production and
Maintenance employees, but excluding Guards, Profes-
sional employees, Technical employees, Supervisors,
and all other office employees at the Company’s pro-
duction facilities located in the City of Fort Wayne and
County of Allen, Indiana.
(b) Rescind and restore the status quo ante as to the un-
lawful unilateral change of denying union officials access
to the employee break room at Respondent’s facility after
employee grievance meetings.
(c) On request by the Union, rescind and restore the
status quo ante as to the unlawful unilateral change of
announcing and implementing a $100 bonus based on
productivity.
(d) On request by the Union, rescind and restore the
status quo ante as to the unlawful unilateral change of
employee pay dates.
(e) Make bargaining unit employees whole for any
losses they may have incurred as a result of the above-
described unilateral changes, plus interest, as described
in the amended remedy portion of this decision.
(f) Make whole affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region
25, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
cating the backpay awards to the appropriate calendar
years for each employee.
(g) Within 14 days after service by the Region, post at
its facilities in Fort Wayne, Indiana, copies of the at-
tached notice marked “Appendix.”11 Copies of the notice,
on forms provided by the Regional Director for Region
25, after being signed by Respondent’s authorized repre-
sentative, shall be posted by Respondent and maintained
for 60 consecutive days in conspicuous 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 Respondent customarily com-
municates with its employees by such means. Reasonable
steps shall be taken by Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, Respondent has gone out of business or
closed the facility involved in these proceedings, Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by Respondent at any time since
August 22, 2013.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 25 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that Respondent has taken to
comply.
Dated, Washington, D.C. December 15, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN MISCIMARRA, dissenting in part.
My colleagues adopt the judge’s findings that the Re-
spondent, a manufacturer of electrical wires, cables, and
harnesses, violated the National Labor Relations Act
(NLRA or Act) in multiple respects after it became the

11 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.”
legal successor of predecessor Stuart Manufacturing.
Although I agree with the judge’s finding that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
unilaterally implementing a $100 employee bonus on
November 4, 2013, I disagree with the judge’s other un-
fair labor practice findings. Specifically, I disagree that
the Respondent violated the Act when it denied a union
representative access to its facility on August 22, 2013,
and when it withdrew recognition from the Union on
January 3, 2014. I also disagree that the Respondent
threatened, on October 16, 2013, that it would divide into
union and nonunion companies. As to these issues, as
explained below, I respectfully dissent.
1. The Respondent Did Not Change a Term or Condi-
tion of Employment When It Denied a Union Representa-
tive’s Access Request. Predecessor Stuart Manufacturing
was party to a collective-bargaining agreement with the
Union effective February 9, 2011, to February 8, 2014
(the CBA). In August 2013, the Respondent acquired
Stuart Manufacturing’s assets, hired Stuart Manufactur-
ing’s employees, commenced operations, recognized the
Union, and adopted the CBA. On August 22, Union
Representative David Altman attended a monthly griev-
ance meeting at the Respondent’s facility. After the
meeting, Altman asked Vice President and General Man-
ager Gerald Pettit if he could meet employees in the
break room. Pettit declined. Altman explained that Stu-
art Manufacturing had allowed him to meet with em-
ployees in the break room every month after the griev-
ance meeting. Pettit repeated his denial of the request.
Section 14.2 of the CBA—which, again, the Respond-
ent had just adopted—stated that “[a]n International rep-
resentative of the Union shall be granted admission to the
facility during work hours after his request has been
granted by the senior management” (emphasis added).
Thus, CBA Section 14.2 conditioned union access to the
Respondent’s facility on the consent of senior manage-
ment. Vice President and General Manager Pettit with-
held consent, and thus Altman was not entitled to access.
The Respondent complied with the plain language of the
CBA it had just adopted.
The judge found, and my colleagues agree, that the
Respondent violated Section 8(a)(5) and (1) of the Act
when it denied Altman access. The judge based this
finding on Stuart Manufacturing’s “seven-year past prac-
tice of allowing union representatives to access the em-
ployee break room at its facility upon request after griev-
ance meetings,” a past practice the judge found the Re-
spondent unilaterally changed when it denied Altman
access. But the Respondent did not have a past practice
of allowing access to the break room after grievance
meetings. The August 22 grievance meeting was the first
SMI/DIVISION OF DCX-CHOL ENTERPRISES, INC. 7
such meeting after the Respondent commenced opera-
tions. Moreover, the Respondent had adopted the CBA.
Its denial of Altman’s access request conformed to CBA
Section 14.2, and there is no evidence that the Respond-
ent made any statements in which it adopted any of its
predecessor’s extra-contractual practices as part of its
initial terms and conditions of employment.1
My colleagues erroneously find that the Respondent
was bound by the past practice of its predecessor, and
therefore, when the Respondent denied Altman’s access
request, it unilaterally changed a term and condition of
employment. My colleagues’ findings are contrary to the
Supreme Court’s decision in NLRB v. Burns Internation-
al Security Services, Inc., 406 U.S. 272 (1972), which
established that a successor “is ordinarily free to set ini-
tial terms on which it will hire the employees of a prede-
cessor.” Id. at 294.2 The Supreme Court in Burns reject-

1 I disagree with my colleagues’ reliance on August 29 correspond-
ence between Respondent’s Vice President of Human Resources Carol
Goods-North and Union Representative Altman. Here, my colleagues
claim that Goods-North stated the Respondent would be requesting a
change in pay dates but that all other work rules would remain the
same, and my colleagues interpret the latter statement—that all other
work rules would remain the same—as proof that the Respondent “had
not set any new terms and conditions of employment.” There are sev-
eral problems with my colleagues’ contention. First, Goods-North’s
forward-looking statement on August 29 (that work rules would remain
the same) obviously was issued after the Respondent had already
adopted its initial employment terms; therefore, the August 29 refer-
ence to then-current work rules has no relevance to whether the Re-
spondent previously, as part of its initial employment terms, may have
adopted the predecessor’s practices. Second, the “work rules” men-
tioned in the Goods-North correspondence may reasonably have re-
ferred only to the specific rules set forth in the adopted CBA, which
would also beg the question as to whether the Respondent contemplated
that the predecessor’s practices had remained the same. Third, even if
it included the predecessor’s practices, the phrase “work rules” typical-
ly refers only to basic requirements applicable to employees, and this
phrase would not normally encompass rules exclusively relating to the
Union (such as limitations or requirements governing Union access to
the facility). Fourth, and most importantly, even if the phrase “work
rules” included predecessor practices that were not part of the CBA,
and even if the phrase “work rules” encompassed matters such as Un-
ion access, my colleagues mischaracterize the Goods-North corre-
spondence: it did not affirm that “all other work rules would remain the
same.” Rather, it merely proposed keeping work rules the same,
which—if agreed to by the Union—would have been part of a package
that would have included changes in employee pay dates. To this ef-
fect, the communication stated: “I would like to propose the following:
SMI accepts the existing contract with a minor change. The pay period
changes from every other Wednesday to the 5th and 20th of the month. .
. . All the other Work Rules remain the same. If you can agree to this, I
believe I can get the new owner to sign” (emphasis added; typograph-
ical errors corrected). It is undisputed, however, that the Union never
accepted this proposal. Therefore, regardless of what the proposal
contemplated, it never went into effect, and the Board cannot properly
regard the proposal as being determinative as to what had been imple-
mented or agreed to by the Respondent or the Union.
2 The Supreme Court carved out an exception to this rule for cases
where “it is perfectly clear that the new employer plans to retain all of
ed the contention that a successor implements an unlaw-
ful “change” by setting initial employment terms that
differ from its predecessor’s. The Court explained as
follows:
Although Burns had an obligation to bargain with the
union concerning wages and other conditions of em-
ployment when the union requested it to do so, this
case is not like a § 8(a)(5) violation where an employer
unilaterally changes a condition of employment with-
out consulting a bargaining representative. It is difficult
to understand how Burns could be said to have
changed unilaterally any pre-existing term or condition
of employment without bargaining when it had no pre-
vious relationship whatsoever to the bargaining unit
and, prior to July 1 [when Burns commenced opera-
tions], no outstanding terms and conditions of employ-
ment from which a change could be inferred. The
terms on which Burns hired employees for service after
July 1 may have differed from the terms extended by
[predecessor] Wackenhut . . . , but it does not follow
that Burns changed its terms and conditions of em-
ployment when it specified the initial basis on which
employees were hired on July 1.
Burns, 406 U.S. at 294 (emphasis added).
Thus, as the Supreme Court held in Burns, a successor
does not have any employment terms before it initially
sets them, and therefore, when it initially sets employ-
ment terms that differ from its predecessor’s, it does not
change its employment terms. Of course, it may not
thereafter change those initial employment terms without
providing the union notice and an opportunity to request
bargaining (assuming the union has demanded recogni-
tion). A successor, however, does not change its em-
ployment terms when it departs from its predecessor’s
past practice in setting its initial terms and conditions of
employment.
My colleagues contend, however, that when the Re-
spondent adopted its predecessor’s CBA with the Union
as its initial terms and conditions of employment, “as a
matter of law, it also adopted the existing practices that
had informed and given meaning to the provisions of the

the employees in the unit.” Burns, 406 U.S. at 294. The Board inter-
preted this “perfectly clear” exception in Spruce Up Corp., 209 NLRB
194 (1974), enfd. mem. 529 F.2d 516 (4th Cir. 1975). There, it restrict-
ed the exception “to circumstances in which the new employer has
either actively or, by tacit inference, misled employees into believing
they would all be retained without change in their wages, hours, or
conditions of employment or at least to circumstances where the new
employer . . . has failed to clearly announce its intent to establish a new
set of conditions prior to inviting former employees to accept employ-
ment.” 209 NLRB at 195 (footnote omitted). There is no allegation
here that the Respondent was a perfectly clear successor.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
CBA.” In support, they cite Pepsi-Cola Distributing
Co.3 As I will show, my colleagues misconstrue and
misapply Pepsi-Cola Distributing. Moreover, the
“Board-imposed-predecessor-practices” principle for
which my colleagues cite Pepsi-Cola Distributing is pre-
posterous, it has no support in existing law, and it runs
headlong into two immovable objects: the Supreme
Court’s decision in Burns, and the NLRA’s plain lan-
guage.
(a) The “Board-Imposed-Predecessor-Practices”
Principle Is Not Supported by Pepsi-Cola Distributing.
In Pepsi-Cola Distributing, after a successor employer
purchased a predecessor’s assets, officials from both
companies met with the predecessor’s route salesmen.
Id. at 870, 875. The successor’s president told the
salesmen that there would be no change in pay structure,
and the successor’s vice president and general manager
added that everything would be run just like it had been
run. Id. The predecessor had a practice—not mentioned
or reflected in the predecessor’s collective-bargaining
agreement (CBA)—of paying the route salesmen a year-
end bonus, and the successor had no knowledge of this
practice when it agreed to adopt the CBA. Id. at 870,
873. After the successor learned that the predecessor
paid year-end bonuses, it refused to pay them on the ba-
sis that they were not contained in the contract. Id. at
870. On these facts, the Board found that the successor
violated Section 8(a)(5) of the Act by failing to make the
bonus payments that were previously made by the prede-
cessor. Id.
The Sixth Circuit enforced the Board’s order in Pepsi-
Cola Distributing because the successor had “assured
employees that their compensation would be the same as
it [previously] had been. . . .” NLRB v. Pepsi-Cola Dis-
tributing of Knoxville, Tenn., Inc., 646 F.2d 1173, 1176
(6th Cir. 1981). According to the court, “the year-end
payments were not mere bonuses, but were a regularly
calculated part of the route salesmen’s compensation.”
Id. Therefore, the court affirmed the Board’s finding that
the successor violated Section 8(a)(5) because the suc-
cessor “promised to continue previously established
compensation,” id. (emphasis added), and then unilater-
ally discontinued part of that compensation.4

3 241 NLRB 869 (1979). enfd. 646 F.2d 1173 (6th Cir. 1981), cert
denied 456 U.S. 936 (1982).
4 The dissenting judge on the Sixth Circuit panel would have found
that the statements made by the successor’s managers, who were una-
ware of the predecessor’s practice regarding bonus payments, meant
only that the route salesmen’s contractual compensation would not
change. Id. at 1177. I do not pass on whether Pepsi-Cola Distributing
was correctly decided, nor do I choose between the conflicting posi-
tions expressed by the court majority and dissent in that case.
At most, Pepsi-Cola Distributing stands for the unre-
markable proposition that, when a successor employer
establishes initial employment terms, it has a duty to
provide notice and the opportunity for bargaining before
making subsequent changes in those employment terms.
By comparison, there is no evidence that the Respondent
in the instant case ever said anything that could be under-
stood as adopting its predecessor’s union-access practic-
es as part of its initial terms and conditions of employ-
ment. Thus, Pepsi-Cola Distributing does not support
the majority’s position that the Respondent was bound,
as a matter of law, by its predecessor’s practices regard-
ing union access.5
(b) The “Board-Imposed-Predecessor-Practices”
Principle Contradicts the Burns Holding that a Prede-
cessor’s Employment Terms Do Not Bind Its Successor.
Again, my colleagues hold that whenever a successor has
adopted its predecessor’s CBA as its initial terms and
conditions of employment, “as a matter of law, it has also
adopted the existing practices that had informed and giv-
en meaning to the provisions of the CBA.” This holding
is flatly contradicted by the Supreme Court’s decision in
Burns. As explained above, the Court in Burns held that
a successor—although it is obligated to recognize and,
on request, bargain with the predecessor’s union—does
not change its terms and conditions of employment when
it establishes initial employment terms that differ from
the predecessor’s. Thus, just as a successor does not
violate Section 8(a)(5) when it elects not to adopt its pre-
decessor’s CBA, so also it does not violate Section
8(a)(5) when it chooses not to adopt its predecessor’s
non-contractual employment practices. Thus here, as in
Burns, the Board cannot reasonably find that the Re-
spondent “changed unilaterally any pre-existing term or

5 My colleagues also cite Rosdev Hospitality, Secaucus, LP, 349
NLRB 202 (2007). In Rosdev, the Board found that a successor violat-
ed Sec. 8(a)(5) by unilaterally departing from an extra-contractual past
practice of its predecessor. But the successor employer in Rosdev was
a “perfectly clear” successor. As explained above in fn. 1, “perfectly
clear” successorship is an exception to the rule of Burns that a succes-
sor is free to set its own initial employment terms. A “perfectly clear”
successor cannot change its predecessor’s terms and conditions of
employment unilaterally. Here, the Respondent is not a perfectly clear
successor, and Rosdev is clearly inapplicable. However, the fact that
my colleagues cite Rosdev is revealing. It is of a piece with their misin-
terpretation and misapplication of Pepsi-Cola Distributing, supra,
through which they treat the Respondent as though it were a perfectly
clear successor to the extent that they bind the Respondent to a past
practice of its predecessor that it did not adopt as part of its initial terms
and conditions of employment. By doing so, my colleagues add this
case to the growing list of cases in which the majority has sought to
erode the crucial distinction between regular Burns successors and
“perfectly clear” successors. See Creative Vision Resources, LLC, 364
NLRB No. 91 (2016); Nexeo Solutions, LLC, 364 NLRB No. 44
(2016).
SMI/DIVISION OF DCX-CHOL ENTERPRISES, INC. 9
condition of employment . . . when it had no previous
relationship whatsoever to the bargaining unit and, prior
to [commencing operations], no outstanding terms and
conditions of employment from which a change could be
inferred.”6 The Respondent chose to adopt its predeces-
sor’s CBA, but it did not adopt by word or deed any of
its predecessor’s extra-contractual practices, including
those pertaining to union access. Burns establishes that a
successor is not required to honor the predecessor’s
CBA, and it is just as contrary to Burns for the Board to
impose on successors who do adopt the predecessor’s
CBA all of the predecessor’s “existing practices” that
supposedly “informed” and had “given meaning to the
provisions of the [predecessor’s] CBA.” Whether the
Board improperly imposes substantive contract terms on
a successor or improperly requires the successor to con-
tinue the predecessor’s non-contractual practices, in ei-
ther case it contravenes the important policies that
prompted the Court in Burns to hold that successors do
not inherit such obligations unless they voluntarily agree
to them.7 Contrary to my colleagues’ claim that the
“Board-imposed-predecessor-practices” principle is es-
tablished in existing law, the proposition they support
strongly resembles the NLRB’s contention that the Su-
preme Court rejected in Burns, namely, that “the new
employer [must be] held to have assumed, as a matter of
federal labor law, the obligations under the contract en-
tered into by the former employer.”8
(c) The “Board-Imposed-Predecessor-Practices”
Principle Contradicts the Burns Holding Regarding the
Voluntary Nature of the Successor’s Assumption of Its
Predecessor’s Obligations. In Burns, the Court ad-
dressed whether the Board may order a successor to ob-

6 Burns, 406 U.S. at 294.
7 The Court in Burns explained those policies as follows:
[H]olding either the union or the new employer bound to the substan-
tive terms of an old collective-bargaining contract may result in seri-
ous inequities. A potential employer may be willing to take over a
moribund business only if he can make changes in corporate structure,
composition of the labor force, work location, task assignment, and
nature of supervision. Saddling such an employer with the terms and
conditions of employment contained in the old collective-bargaining
contract may make these changes impossible and may discourage and
inhibit the transfer of capital. On the other hand, a union may have
made concessions to a small or failing employer that it would be un-
willing to make to a large or economically successful firm. The con-
gressional policy manifest in the Act is to enable the parties to negoti-
ate for any protection either deems appropriate, but to allow the bal-
ance of bargaining advantage to be set by economic power realities.
Strife is bound to occur if the concessions that must be honored do not
correspond to the relative economic strength of the parties.
406 U.S. at 287–288.
8 Burns, 406 U.S. at 285 (emphasis added).
serve predecessor obligations that the successor “had not
voluntarily assumed,” and the Court held that it may not.9
However, the Court observed that “in a variety of cir-
cumstances . . . the Board might properly find as a matter
of fact that the successor had assumed the obligations
under the old contract.”10 My colleagues’ “Board-
imposed-predecessor-practices” principle disregards this
requirement of voluntary assumption. In their view,
whenever a successor voluntarily agrees to adopt certain
obligations, it involuntarily inherits other obligations as a
matter of law. Here as well, my colleagues’ position is
foreclosed by Burns, where the Supreme Court stated:
“‘[A]llowing the Board to compel agreement when the
parties themselves are unable to agree would violate the
fundamental premise on which the Act is based—private
bargaining under governmental supervision of the proce-
dure alone, without any official compulsion over the ac-
tual terms of the contract.’”11
(d) The “Board-Imposed-Predecessor-Practices”
Principle Exceeds the Board’s Authority Under Section
8(d). Whether the Board seeks to compel agreement
regarding terms set forth in a predecessor’s CBA or re-
garding a predecessor’s extra-contractual practices, in
either case the Board exceeds its authority under the Act.
Not only was this the express holding of Burns, as ex-
plained above, but Section 8(d) of the Act provides that
the duty to bargain imposed by the Act “does not compel
either party to agree to a proposal or require the making
of a concession.” In accordance with Section 8(d), the
Supreme Court in H. K. Porter Co. v. NLRB12 held that
the Board lacks authority to impose substantive employ-
ment terms on parties as a matter of law. In reasoning
that has equal application here, the Supreme Court ex-
plained:
The object of this Act was not to allow governmental
regulation of the terms and conditions of employment,
but rather to ensure that employers and their employees
could work together to establish mutually satisfactory
conditions. The basic theme of the Act was that,
through collective bargaining, the passions, arguments,
and struggles of prior years would be channeled into
constructive, open discussions leading, it was hoped, to
mutual agreement. But it was recognized from the be-
ginning that agreement might, in some cases, be impos-
sible, and it was never intended that the Government
would, in such cases, step in, become a party to the ne-

9 Burns, 406 U.S. at 274.
10 Burns, 406 U.S. at 291 (emphasis added).
11 Burns, 406 U.S. at 287 (quoting H. K. Porter Co. v. NLRB, 397
U.S. 99, 108 (1970)).
12 397 U.S. 99 (1970).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
gotiations, and impose its own views of a desirable set-
tlement.
* * *
It is implicit in the entire structure of the Act that the
Board acts to oversee and referee the process of collec-
tive bargaining, leaving the results of the contest to the
bargaining strengths of the parties. It would be
anomalous indeed to hold that, while § 8(d) prohibits
the Board from relying on a refusal to agree as the sole
evidence of bad faith bargaining, the Act permits the
Board to compel agreement in that same dispute. The
Board’s remedial powers under § 10 of the Act are
broad, but they are limited to carrying out the policies
of the Act itself. One of these fundamental policies is
freedom of contract. While the parties’ freedom of con-
tract is not absolute under the Act, allowing the Board
to compel agreement when the parties themselves are
unable to agree would violate the fundamental premise
on which the Act is based – private bargaining under
governmental supervision of the procedure alone,
without any official compulsion over the actual terms of
the contract.13
Based on the above considerations, I believe that my
colleagues erroneously find that the Act required the Re-
spondent to adhere to Stuart Manufacturing’s past prac-
tice. Contrary to my colleagues’ finding that the Re-
spondent violated Section 8(a)(5), the Respondent had
the right to set its own initial employment terms, includ-
ing those pertaining to union access. The initial terms it
set were those set forth in Stuart Manufacturing’s CBA
with the Union, which the Respondent decided to adopt.
Regarding union access, CBA Section 14.2 was the Re-
spondent’s initial term, and Section 14.2 conditioned
union access on the consent of senior management. As
Burns teaches, the Respondent did not change its terms
and conditions of employment when it set that initial
term, and neither did the Respondent implement a
change when it adhered to Section 14.2 on August 22 by
exercising its contractual right to deny Altman’s access
request. Absent any change, the Respondent could not
have violated Section 8(a)(5) as alleged,14 and this alle-
gation must be dismissed.
2. The Respondent Did Not Threaten to Divide into
Union and Nonunion Companies. Stuart Manufacturing,
owned by Lionel Tobin, qualified for certain contracts
because it was a minority-owned business and a “HUB-

13 397 U.S. at 103–104, 107–108 (emphasis added; footnotes omit-
ted).
14 See NLRB v. Katz, 369 U.S. 736, 743 (1962) (holding that “an
employer’s unilateral change in conditions of employment . . . is a
circumvention of the duty to negotiate which frustrates the objectives of
§ 8(a)(5) much as does a flat refusal” to bargain on request).
zone” employer, i.e., an employer located in an area tar-
geted for economic development, at least 35% of whose
employees resided in that area. The Respondent was not
minority-owned and did not qualify for those contracts.
Thus, although the Respondent purchased Stuart Manu-
facturing’s assets, it could not perform some of Stuart
Manufacturing’s business. Tobin had aspirations to res-
urrect Stuart Manufacturing to bid on contracts for which
the Respondent was ineligible. Stuart Manufacturing
continued in existence as a shell corporation, and the
Respondent permitted Tobin to keep his old office and
telephone; but Tobin was not employed by the Respond-
ent in any capacity. Tobin also engaged in preliminary
discussions with some of the Respondent’s employees to
assess their interest in working for Stuart Manufacturing
if it were to resume operations, and he also spoke with
the Respondent about the possibility of leasing some of
its space and equipment. As it turned out, Tobin’s aspi-
rations never came to fruition.
On October 16, 2013, a time when Tobin was still ex-
ploring the possibility of resuming operations as Stuart
Manufacturing, the Respondent and the Union held their
monthly grievance meeting by telephone. Present on the
call were Union Representative Altman, Respondent’s
Vice President of Human Resources Carol Goods-North,
and employee Jamarcus Tinker. After discussing griev-
ances, conversation turned to Tobin’s plans concerning
Stuart Manufacturing. Altman asked Goods-North
whether Tobin’s company would operate under the same
or different collective-bargaining agreements. Goods-
North answered that the Respondent would continue to
operate under the union contract, but Tobin’s company
would not because it would be nonunion. Altman replied
that if Tobin’s company started out nonunion, Altman
would talk to Tobin’s employees and unionize them.
Goods-North did not respond.
The judge concluded, and my colleagues agree, that
Goods-North’s statement—that the Respondent would
continue to operate under the union contract, but Tobin’s
company would not because it would be nonunion—was
a threat “that Respondent would divide into two separate
companies, one union and one nonunion.” I disagree.
First, the judge’s conclusion was based on the implicit
assumption that the Respondent and Stuart Manufactur-
ing constituted a single enterprise.15 There is no basis for
this assumption. The Respondent is a division of DCX-
CHOL Enterprises, Inc. Stuart Enterprises, Inc. was a
separate legal entity from the Respondent. Moreover, the
General Counsel did not allege, the parties did not liti-

15 The judge relied on what he perceived to be a “close, if not cozy,
relationship” between the Respondent and Stuart Manufacturing.
SMI/DIVISION OF DCX-CHOL ENTERPRISES, INC. 11
gate, and the judge did not find that the Respondent and
Stuart Enterprises constituted a single employer or alter
egos. Goods-North could not have threatened to divide
the Respondent and Stuart Enterprises into two separate
companies, as the complaint alleged,16 because they al-
ready were two separate companies.
Second, Goods-North did not say that the Respondent
would divide into union and nonunion companies as the
General Counsel alleged in the complaint, and there is
nothing coercive about what she did say. She said the
Respondent would adhere to the union contract, and To-
bin’s company—Stuart Enterprises, a legally separate
entity—would be nonunion. This was a true statement.
At the time the statement was made, Stuart Enterprises
existed as a shell corporation. It had no assets (other
than a bank account), it was not engaged in operations,
and most importantly, it had no employees. Thus, if Stu-
art Enterprises acquired assets, hired employees and re-
sumed operations, on day one it would have been nonun-
ion. Before an employer can lawfully recognize a union
as the collective-bargaining representative of an appro-
priate bargaining unit of employees under Section 9(a) of
the Act, the majority of the employees in that unit must
first designate or select the union as their bargaining rep-
resentative. See NLRA Section 9(a); International La-
dies’ Garment Workers’ Union v. NLRB (Bernhard-
Altmann), 366 U.S. 731, 737–738 (1961).17 On day one
of a reconstituted Stuart Enterprises, its employees would
not have had an opportunity yet to express their wishes
concerning representation. Thus, Tobin’s company
would be nonunion, as Goods-North accurately stated.18
Contrary to the judge’s decision, Goods-North did not
indicate “that union membership would be incompatible
with employment at Stuart Manufacturing.” She stated
that Tobin’s company would be nonunion, which was
true. Moreover, Union Representative Altman clearly

16 Complaint ¶ 5(b) alleged that the Respondent “threatened employ-
ees with the division of Respondent into two separate companies, one
unionized company and one nonunionized company.”
17 Under Sec. 8(f) of the Act, an employer in the construction indus-
try may enter into a collective-bargaining agreement with a union re-
gardless of whether a majority of its employees support the union.
Indeed, a construction-industry employer may enter into such an
agreement before it has hired any employees at all. However, Tobin’s
company, if it ever hired employees and resumed operations, would not
have been an employer in the construction industry, and any bargaining
representative of its employees could only have been a Sec. 9(a) repre-
sentative.
18 My colleagues suggest in passing that “it is possible that Stuart
[Manufacturing] itself would have been a successor employer with an
obligation to recognize and bargain with the Union.” They cite no
precedent, however, for the remarkable proposition that Stuart Manu-
facturing could become a Burns successor of the Respondent without
purchasing it or acquiring its assets, and where the Respondent would
remain in business unchanged.
did not understand Goods-North’s statement the way the
judge interprets it. Altman responded to her statement by
saying that if Tobin’s company started out nonunion,
Altman would talk to Tobin’s employees and unionize
them, and Goods-North did not take issue with Altman’s
response. The record does not support an unfair labor
practice finding.
My colleagues strain unsuccessfully to rescue the
judge’s factually baseless finding. They cite New York
New York Hotel & Casino, 356 NLRB 907 (2011)—an
utterly inapposite case19—for the broad proposition that
an employer may interfere with the Section 7 rights of
another employer’s employees. They do not explain,
however, how or why that proposition applies to the facts
of this case. Instead, they cite another inapposite case,
Kessel Food Markets, 287 NLRB 426 (1987).20 In Kes-
sel Food Markets the respondent’s owner, Albert Kessel,
discriminated in hiring against the union-represented
employees of several Kroger stores Kessel was acquir-
ing. Kessel also violated the Act by telling the Kroger
employee-applicants that his stores would be nonunion.
Thus, in Kessel Food Markets, the person who made the
“nonunion” statement was the person making the hiring
decisions, and he made the statement to the very individ-
uals against whom he was discriminating. “The coercive
aspect of an unlawful threat derives from the ability of
the speaker or party to carry out the threat.”21 Here, in
contrast, the Respondent had no power to make hiring
decisions for Stuart Manufacturing (which was not hiring
and never did hire anyone). Goods-North’s statement
was not a threat at all, let alone an unlawful threat.
3. The Respondent Lawfully Withdrew Recognition
Based on a Decertification Petition Signed by a Majority
of the Unit. On November 12, 2013, an employee of the
Respondent filed a petition to decertify the Union signed
by a clear majority of the unit employees. On November
25, the Union requested that the parties begin negotiating
for a new collective-bargaining agreement, and the par-
ties agreed to meet on January 6, 2014 to commence bar-
gaining. However, in December, the Respondent re-
ceived a copy of the decertification petition. According-

19 Enfd. 676 F.3d 193 (D.C. Cir. 2012), cert. denied 133 S. Ct. 1580
(2013). In New York New York Hotel & Casino, the Board found that
the respondent hotel and casino violated Sec. 8(a)(1) of the Act when it
excluded from its property off-duty employees of a food-service con-
tractor—Ark Las Vegas Restaurant Corporation, which operated restau-
rants within the hotel and casino—who sought access to the respond-
ent’s property for the purpose of soliciting customers to support their
organizing efforts. A set of facts more remote from those presented in
the instant case would be difficult to imagine.
20 Enfd. 868 F.2d 881 (6th Cir. 1989), cert. denied 493 U.S. 820
(1989).
21 Smithfield Packing Co., 344 NLRB 1, 9 (2004), enfd. 447 F.3d
821 (D.C. Cir. 2006).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
ly, on January 3, 2014, the Respondent notified the Un-
ion that although it would continue to honor the parties’
existing collective-bargaining agreement, it was legally
obligated to honor the petition and therefore would not
negotiate for a new agreement.
The judge found that the Respondent withdrew recog-
nition from the Union on January 3, 2014, and that the
withdrawal of recognition was unlawful because it was
made within the “successor bar” period, during which an
employer may not “withdraw recognition from the union
based on a claimed loss of majority support.” UGL-
UNICCO Service Co., 357 NLRB 801, 808 (2011). I
have indicated that I would refrain from applying the
“successor bar.” Instead, I would adhere to the Board’s
prior standard that “‘an incumbent union in a successor-
ship situation is entitled to—and only to—a rebuttable
presumption of continuing majority status, which will not
serve as a bar’ whenever a rival petition is filed.” FJC
Security Services, 360 NLRB 929, 930 (2014) (quoting
MV Transportation, 337 NLRB 770, 770 (2002) (empha-
sis in original)). And as the decertification petition
demonstrates, the presumption of continuing majority
status has been rebutted here.
The General Counsel alternatively argues that, under
Master Slack Corp., 271 NLRB 78, 84 (1984), the Re-
spondent’s unfair labor practices tainted the decertifica-
tion petition upon which the Respondent relied when
withdrawing recognition, rendering the withdrawal of
recognition unlawful on that separate and independent
basis. Again, the decertification petition was signed by a
majority of the unit employees, and the signatures on the
petition were dated August 21–23, 2013. The only unfair
labor practice I would find—the $100 bonus on Novem-
ber 4, 2013—occurred after employees signed the peti-
tion and thus could not have tainted the petition. Thus, I
would find that the Respondent lawfully withdrew
recognition in reliance on the petition.22
Accordingly, I respectfully dissent from the majority’s
finding of the violations discussed above.
Dated, Washington, D.C. December 15, 2017
______________________________________
Philip A. Miscimarra, Chairman
NATIONAL LABOR RELATIONS BOARD

22 Since I would find the withdrawal of recognition lawful, I also
disagree with the judge’s finding that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally changing employee pay dates
after it withdrew recognition.
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 withdraw recognition from and fail and
refuse to recognize and bargain with Indiana Joint Board,
Retail, Wholesale, Department Store Union, United Food
& Commercial Workers, Local 835 (Union) as the exclu-
sive collective-bargaining representative of the bargain-
ing unit employees.
WE WILL NOT unilaterally deny Union officials access
to the employee break room at our facility after employee
grievance meetings without notifying the Union and giv-
ing it an opportunity to bargain.
WE WILL NOT threaten employees that we will divide
into two separate companies, one union and one nonun-
ion.
WE WILL NOT unilaterally change employees’ terms
and conditions of employment by announcing and im-
plementing a $100 bonus based on productivity without
notifying the Union and giving it an opportunity to bar-
gain.
WE WILL NOT unilaterally change employee pay dates
without notifying the Union and giving it an opportunity
to bargain.
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 recognize and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of the employees in the above-described appropriate
unit concerning terms and conditions of employment,
and, if an understanding is reached, embody the under-
standing in a signed agreement. The unit is as follows:
[A]ll full-time and regular part-time Production and
Maintenance employees, but excluding Guards, Profes-
sional employees, Technical employees, Supervisors,
and all other office employees at the Company’s pro-
SMI/DIVISION OF DCX-CHOL ENTERPRISES, INC. 13
duction facilities located in the City of Fort Wayne and
County of Allen, Indiana.
WE WILL rescind and restore the status quo ante as to
the unlawful unilateral change of denying union officials
access to the employee break room at our facility after
employee grievance meetings.
WE WILL, on request by the Union, rescind and restore
the status quo ante as to the unlawful unilateral change of
announcing and implementing a $100 bonus based on
productivity.
WE WILL on request by the Union, rescind and restore
the status quo ante as to the unlawful unilateral change of
employee pay dates.
WE WILL make bargaining unit employees whole for
any losses you may have incurred as a result of the
above-described unilateral changes, plus interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 25, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
SMI/DIVISION OF DCX-CHOL ENTERPRISES,
INC.
The Board’s decision can be found at
www.nlrb.gov/case/25-CA-117090 or by using the QR code
below. 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.
Rebecca Ramirez and Ryan Funk, Esqs., for the General Coun-
sel.
H. Joseph Cohen, Esq., for Respondent.
DECISION
STATEMENT OF THE CASE
GEOFFREY CARTER, Administrative Law Judge. This case
was tried in Fort Wayne, Indiana, on July 15–16, 2014. The
Indiana Joint Board, Retail, Wholesale, Department Store Un-
ion, United Food & Commercial Workers, Local 835 (the Un-
ion) filed the charges at issue here on the following dates:
Case Charge Filing Date
25–CA–117090 November 15, 2013
25–CA–117093 November 15, 2013
25–CA–117097 November 15, 2013
25–CA–117151 November 18, 2013
25–CA–117254 November 19, 2013
25–CA–120437 January 13, 2014
25–CA–125968 April 7, 20141
On April 30, 2014, the General Counsel issued a complaint
covering the first six cases. Subsequently, on June 9, 2014, the
General Counsel issued a consolidated complaint covering all
seven cases listed above.
In the consolidated complaint, the General Counsel alleges
that SMI/Division of DCX-CHOL Enterprises, Inc. (Respond-
ent) violated Section 8(a)(5) and (1) of the National Labor Re-
lations Act (the Act), and also Section 8(a)(1) of the Act, by: on
August 19, 2013, threatening employees with job loss and plant
closure if they did not agree to accept Respondent’s proposal to
change employee pay dates; on October 16, 2013, threatening
to divide the Company into two entities (one union, and one
nonunion) because employees engaged in union and protected
activities; and, on October 16, 2013, bypassing the Union and
dealing directly with employees to solicit them to leave Re-
spondent and begin working for a nonunion company.
The General Counsel also alleges that Respondent violated
Section 8(a)(5) and (1) of the Act by: since August 20, 2013,
refusing to recognize and bargain with the Union as the exclu-
sive collective-bargaining representative of the bargaining unit;
on August 22, 2013, denying union officials access to the em-
ployee break room; on November 4, 2013, bypassing the Union
and dealing directly with employees to announce and distribute
$100 bills to employees; on January 3, 2014, withdrawing
recognition from the Union as the exclusive representative of
the bargaining unit, and thereafter refusing to meet and bargain
with the Union to negotiate a collective-bargaining agreement;
and, on or about March 27, 2014, unilaterally changing em-
ployee pay dates. Respondent filed a timely answer denying
the violations alleged in the consolidated complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT2
I. JURISDICTION
Respondent, a corporation with an office and place of busi-
ness in Fort Wayne, Indiana, manufactures wires, cables and
harnesses at its facility that is also located in Fort Wayne, Indi-

1 All dates are from 2013 to 2014, unless otherwise indicated.
2 Although I have included several citations in the findings of fact to
highlight particular testimony or exhibits, I emphasize that my findings
and conclusions are not based solely on those specific record citations,
but rather are based on my review and consideration of the entire record
for this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
ana. In the twelve months preceding the date of the consolidat-
ed complaint in this case, Respondent: sold and shipped goods
valued in excess of $50,000 from its Fort Wayne facility direct-
ly to points outside of the State of Indiana; and, at its Fort
Wayne facility, purchased and received goods valued in excess
of $50,000 from points outside of the State of Indiana. Re-
spondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Stuart Manufacturing
In July 2001, Lionel Tobin became the owner of Stuart Man-
ufacturing, a company that manufactures electronic parts,
wires, cables and harnesses. (Tr. 17, 243, 250.) Since Stuart
Manufacturing was a minority-owned business and also quali-
fied as a “HUB zone“ entity,3 Stuart Manufacturing was eligi-
ble to work on contracts (often with the Federal Government)
that provided incentives to hire companies with those character-
istics. (Tr. 19.)
2. The Union
Since 2000,4 David Altman has served as the Union’s repre-
sentative for the following appropriate bargaining unit at Stuart
Manufacturing:
[A]ll full-time and regular part-time Production and Mainte-
nance employees, but excluding Guards, Professional em-
ployees, Technical employees, Supervisors, and all other of-
fice employees at the Company’s production facilities located
in the City of Fort Wayne and County of Allen, Indiana.
(Tr. 105; Jt. Exh. 1, Article I.) In 2011, the Union and Stuart
Manufacturing negotiated and executed a collective-bargaining
agreement effective from February 9, 2011, to February 8,
2014. (Jt. Exh. 1.)
B. DCX-CHOL Buys Stuart Manufacturing’s Assets
1. The asset purchase
In 2013, Stuart Manufacturing began experiencing some fi-
nancial difficulty and accordingly hired a consultant to assist
with finding potential buyers for the Company. (Tr. 38–39,
48.) As a result of that search, on August 9, 2013, DCX-CHOL
Enterprises, Inc. (DCX-CHOL)5 bought the assets of Stuart
Manufacturing, and began operating the business under its cur-
rent name, SMI/Division of DCX-CHOL Enterprises, Inc. (Tr.
18–19, 44–45; Jt. Exh. 2.)

3 According to Tobin, a business qualifies as a HUB zone entity if it
is located in an area targeted for economic development (based on U.S.
Census data concerning area poverty levels) and at least 35 percent of
the business’ employees reside in that area. (Tr. 19–20.)
4 The Union has represented employees at the facility since the
1980’s, through various changes in ownership. (Tr. 105.)
5 DCX-CHOL has a total of six divisions: four in California; one in
Illinois; and one (SMI/Division of DCX-CHOL) in Indiana. (Tr. 44,
76.)
Since DCX-CHOL was not a minority-owned business and
was not eligible to perform HUB zone work, the asset purchase
left a void that Tobin proposed to fill by operating Stuart Manu-
facturing as a separate company that would compete for con-
tracts that DCX-CHOL could not handle. (Tr. 19, 35–36, 84–
85.) Tobin therefore continued to be the owner of Stuart Manu-
facturing, albeit under circumstances where Stuart Manufactur-
ing was a shell corporation with no assets beyond the funds in
its bank account. (Tr. 34–35; Jt. Exh. 2.)
2. Respondent meets with employees and the Union
After finalizing the asset purchase, Respondent’s owner,
Neal Castleman (joined by Tobin), met with employees in Au-
gust 2013, to announce the ownership change. (Tr. 48–49, 80,
221–222.) Later, on August 19, Respondent and the Union
participated in a special meeting to discuss the transition pro-
cess. Carol Goods-North, Respondent’s Vice President of Hu-
man Resources,6 provided the Union with a letter that stated as
follows:
Dear Dave [Altman]:
This memo serves as a formal notification of change in own-
ership of Stuart Manufacturing, Inc.
Effective August 9, 2013, DCX-Chol out of Los Angeles, CA
has purchased the assets of the Company; Mr. Tobin still
owns Stuart Manufacturing, Inc. The Fort Wayne location
will be named SMI – a Division of DCX.
The two owners are currently ironing out the particulars as it
pertains to which customers will be serviced by Stuart Manu-
facturing, Inc. or DCX.
Gerry Pettit remains on board as the General Manager for
SMI; I will stay on as an employee of DCX as a Liai-
son/Human Resources Director. My position is a proposed
position; finalization will take place within the next coming
weeks.
DCX understands that by purchasing the Stuart assets, they
became a successor,7 [and] therefore would request various
modifications to the Bargaining Unit Agreement in order to
effectively and successfully manage the operations at SMI.
We expect to have a proposal of [] DCX’s requests for modi-
fications within the next week.
In the interim, please forward any questions or concerns to
me. . . .
We look forward to an amiable exchange to finalize the
agreement between DCX and [Union] members.
(Jt. Exh. 2; see also Tr. 106–109, 151.)
Regarding possible modifications to the collective-
bargaining agreement, Goods-North explained that Respondent
would likely need to request a change in employee pay dates,

6 Goods-North is Tobin’s sister, and previously served as Stuart
Manufacturing’s director of human resources. (Tr. 43–44.)
7 At trial, Respondent stipulated that on August 9, 2013 (the date
that it purchased Stuart Manufacturing’s assets), it became the succes-
sor employer to Stuart Manufacturing. (Tr. 47.)
SMI/DIVISION OF DCX-CHOL ENTERPRISES, INC. 15
since Stuart Manufacturing paid its employees on a biweekly
basis (every other Wednesday), and Respondent paid its em-
ployees on the fifth and twentieth of each month. Altman re-
sponded that he did not anticipate that it would pose a problem
to modify the pay dates, but advised that he nonetheless would
need to submit the proposed modification to the bargaining unit
for a vote.8 (Tr. 50–53, 106–108; see also Jt. Exh. 1, Article
XIV, Section 14.6.)
C. The August 22, 2013, Grievance Meeting
1. Union access history
The collective-bargaining agreement states that “[a]n Inter-
national representative of the Union shall be granted admission
to the facility during work hours after his request has been
granted by the senior management.” (Jt. Exh. 1, Article XIV,
Section 14.2.)
For the past seven years, Respondent (and its predecessor,
Stuart Manufacturing) generally met with the Union each
month to conduct grievance meetings, with Goods-North typi-
cally representing the Company, and Altman representing the
Union. After many of those meetings, Altman asked Goods-
North if he could meet with employees in the break room.
Goods-North routinely granted Altman’s requests.9 (Tr. 55–57,

8 Both Altman and Union Chair Jamarcus Tinker testified that
Goods-North warned them that Respondent could close the facility and
move the work if the Union refused to agree to change the employee
pay dates. (Tr. 108, 223–224; see also GC Exh. 2, p. 1 (Altman’s notes
from the meeting).) Goods-North denied making the alleged threat,
describing the notion that she would make such a statement as “ab-
surd.” (Tr. 66.) All three witnesses were equally forthright and credi-
ble when they testified about this issue.
I do not see a basis for crediting Altman’s and Tinker’s testimony
over Goods-North’s testimony, particularly when one considers the
letter that Goods-North presented to the Union at the meeting. Re-
spondent’s August 19, 2013 letter raised the issue of potential contract
modifications in a conciliatory tone, and that fact undermines the prop-
osition that Respondent was dead set on modifying the contract to
change employee pay dates as soon as possible. Furthermore, since
Respondent did not change the employee pay dates until in or about
April 2014, and there is no suggestion that Respondent viewed the pay
date change as an urgent matter, it does not stand to reason that Re-
spondent (through Goods-North or anyone else) would draw a line in
the sand on that issue within days of the asset purchase.
Ultimately, the evidence that the General Counsel presented about
the alleged August 19, 2013, threat to close the facility and move the
work was, at best, equally credible to Respondent’s contrary evidence
on that issue. Accordingly, I find that the “tie” goes to Respondent and
I have credited Goods-North’s denial on this point, since the General
Counsel bears the burden of proving the allegations in the complaint by
a preponderance of the evidence. See Central National Gottesman, 303
NLRB 143, 145 (1991) (finding that the General Counsel did not meet
its burden of proof because the testimony that the allegation occurred
was equally credible as the testimony that denied the allegation); Blue
Flash Express, 109 NLRB 591, 591–592 (1954) (same), questioned on
other grounds Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354 (D.C.
Cir. 1997).
9 I have not credited Goods-North’s testimony that she denied Alt-
man access to the break room on one occasion in the past because
“there was something going on and [Altman] agreed.” Goods-North
admitted to having trouble recalling the circumstances about this occa-
sion because “it was a long time ago.” Given Goods-North’s uncertain-
99.)
2. Union access on August 22, 2013
On August 22, 2013, Altman participated in the monthly
grievance meeting at Respondent’s facility. Gerald Pettit, Re-
spondent’s vice president and general manager, represented
Respondent in person at the grievance meeting, while Goods-
North participated by telephone. After the grievance meeting,
Altman asked Pettit if he could meet with employees in the
break room. Pettit refused because he believed that it was not a
good time for Altman to visit because employees were trying to
attain certain production goals, and because Respondent had
only recently purchased Stuart Manufacturing’s assets and Pet-
tit did not want Altman to cause a disruption by stirring up
speculation about the implications of the asset purchase trans-
action. Altman explained that Goods-North allowed him to visit
the break room every month after their grievance meetings, and
asserted that it would not be disruptive to meet with employees
because he (Altman) would only see employees who were on
break or at lunch. When Pettit again refused, Altman decided
to leave the facility without meeting with employees. (Tr. 86–
87, 109–111, 224–225; GC Exh. 2, p. 5.) On all other occa-
sions since August 22, 2013, Respondent has granted Altman’s
requests to meet with employees in the break room after griev-
ance meetings. (Tr. 68, 95, 167, 236–237.)
D. August/September 2013 – Respondent and the Union Table
Further Discussions about Contract Modifications
On August 26, 2013, Altman followed up with Goods-North
about what modifications she planned to propose to make to the
collective-bargaining agreement. Specifically, Altman advised
Goods-North as follows:
We are having a membership meeting on Wednesday. If you
can provide me with the contract modifications [you’re] look-
ing for, I will discuss them with my members at Wednesday’s
meeting.
(GC Exh. 3, p. 1; see also Tr. 113, 118.)
On August 29, 2013, Goods-North replied to Altman about
the collective-bargaining agreement. Goods-North stated:
Dave, in response to establishing an agreement with [the Un-
ion] and the new company; as I stated earlier in the week, we
are trying to finalize the transition from Stuart Manufacturing
to DCX (SMI). Many challenges are taking a great amount of
time to work through.
I would like to propose the following:

ty about this incident, I do not find her testimony on this point to be
reliable. Instead, at most, the evidence shows that on one occasion,
Goods-North asked Altman to keep his break room visit short because
employees had a work assignment that needed attention. Altman
agreed. (Tr. 56–57.)
I do credit Gerald Pettit’s testimony that he did not allow the Union
to meet with employees in the break room when he was in charge of
representing the Company at grievance meetings. Pettit, however, has
not held that role for seven years – instead, Goods-North has handled
everything concerning grievance meetings for the past 7 years. (Tr. 95,
99–100.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
SMI accepts the existing contract with a minor [change.] The
Pay period changes [from] every other Wednesday to the 5th
and 20th of the month. As I mentioned before, the difference
is merely 1 day.
All other Work Rules [remain] the same. If you can agree to
this, I believe I can get the new owner to sign.
Also, I have attached a copy of the Purchase Agreement;
please advise if you have any questions.
Please advise your thoughts. Thank you.
(GC Exh. 4, p. 1.)
Goods-North and Altman communicated again about possi-
ble modifications to the collective-bargaining agreement on
September 3, 2013. As indicated in the following email ex-
change, Goods-North and Altman agreed to put the issue of
contract modifications aside because of uncertainty related to
the asset purchase, and because a petition to decertify the Union
had been filed:
Altman: Good morning Carol, If the payday is the only modi-
fication you [are] looking for, I suggest that I put together a
secret ballot, and conduct the voting in the break room at the
plant in order to exp[e]dite the process. Otherwise Thursday
will be the first opportunity I’ll have to get it to the members
for a vote. Let me know your thoughts.
G-N: Good morning Dave. We received notification that a
petition has been filed with the NLRB for decertification of
the current contact [sic]; I’ve been informed that you are
aware and have provided a response. At this point we should
wait on the Board’s decision before moving forward, do you
agree?
Altman: Carol, [i]f you prefer to wait, we can wait.
G-N: There are too many unanswered questions surrounding
the current contract in place; especially since Stuart Manufac-
turing is still in business. I don’t believe we have a choice.
(GC Exh. 4, p. 2; see also Tr. 118–120, 158–159, 251–252.)10
E. September/October 2013—Stuart Manufacturing’s Ongoing
Presence at the Facility
1. Tobin maintains connections to Respondent’s facility
Consistent with his idea of operating Stuart Manufacturing
as a smaller business that would be eligible for HUB zone and
minority-owned business contracts, Tobin (with Respondent’s
consent) continued to use his old office space and telephone at
Respondent’s facility, even though he was not on Respondent’s
payroll as an employee after the asset purchase was complet-
ed.11 Tobin also hoped to lease equipment and facility space
from Respondent for Stuart Manufacturing, and to that end

10 According to employee Michelle Stump, she filed a decertifica-
tion petition on August 28, 2013, but that petition was denied due to
timeliness issues. (Tr. 252.)
11 In fact, at least one of Respondent’s customers continued to inter-
act with Tobin as if he owned the facility. Tobin forwarded the cus-
tomer’s information to Respondent as needed. Respondent did not
compensate Tobin for taking on this role. (Tr. 29–30.)
established a separate mailing address (1613 East Wallace
Street) that was at the same location as Respondent’s facility
(1615 East Wallace Street). (Tr. 23–25, 32–34, 84.)
In addition, Tobin (again, with Respondent’s consent) began
speaking to individual employees to determine if they would be
interested in leaving Respondent to work for Stuart Manufac-
turing. Specifically, Tobin separately approached a total of
about 15 employees (including employees Angela Dixon, Joe
Horton and Jamarcus Tinker) while they were working and,
either on the shop floor or in Respondent’s conference room,
asked if they would be interested in working for a newly consti-
tuted version of Stuart Manufacturing. Tobin assured the em-
ployees that their working conditions would remain the same.
(Tr. 20, 25–28, 90, 175–177, 189, 202–204, 214–215, 225–
226.) There is no evidence that Tobin stated or indicated in
these meetings that Stuart Manufacturing would operate as a
nonunion company. (Tr. 38, 215.)
2. The October 16 grievance meeting
On October 16, 2013, Goods-North spoke with Altman and
Tinker by telephone for their monthly grievance meeting. After
some initial discussion about employee grievances, Altman
asked Goods-North for an update on the sale of the company,
and in particular an update on whether the parties to the sale
were still considering having two companies. Goods-North
answered yes, and added that DCX-CHOL would be located at
1615 Wallace Street, while Tobin’s company would be at 1613
Wallace Street.
Next, Altman asked Goods-North if, as Altman had heard,
Tobin had been going on to the shop floor to solicit employees
to come and work for his company. Goods-North responded
that Tobin needed employees who live in the HUB zone so he
could continue handling certain government contracts.
Finally, Altman asked Goods-North whether DCX-CHOL
and Tobin’s company would be under the same or different
collective-bargaining agreements. When Goods-North re-
sponded that DCX-CHOL would operate under the union con-
tract, but Tobin’s company would not because it would be non
union, Altman expressed concern about that arrangement and
asserted that if Tobin’s company began as non union, Altman
would talk to Tobin’s employees and unionize them.12 (Tr.
120–124, 226–227; GC Exh. 2, pp. 6–9; see also Tr. 23.)
3. Relationship between Respondent and Stuart Manufacturing
goes sour
Later in the fall of 2013, the relationship between Respond-
ent and Tobin soured, in part due to disputes that arose about
contract payments that Tobin received erroneously because a

12 Goods-North did not testify about the October 16 grievance meet-
ing, other than (in response to a closed question) to deny telling the
Union that there was a plan between Stuart Manufacturing and DCX-
CHOL to make a nonunion facility. (Tr. 67.) I do not find Goods-
North’s general denial to be persuasive because it does not rebut Alt-
man’s and Tinker’s testimony. Indeed, Goods-North only denied that
there was a joint effort between DCX-CHOL and Stuart Manufacturing
to create a nonunion company – that limited denial stopped well short
of addressing Altman’s and Tinker’s testimony that Goods-North ad-
vised them that Tobin’s company would operate as a nonunion compa-
ny.
SMI/DIVISION OF DCX-CHOL ENTERPRISES, INC. 17
customer failed to update its payment information to show Re-
spondent as the new owner of the company. Respondent ac-
cordingly stopped allowing Tobin access to the facility unless
he obtained permission in advance, and any discussions about
Stuart Manufacturing leasing Respondent’s equipment or facili-
ty space came to a halt. (Tr. 22, 30–32, 39–41, 85, 225.)
F. November 4, 2013—Respondent Gives each Employee a
Surprise $100 Bonus
1. November 4, 2013—the $100 bonus
In the latter part of October, Respondent’s managers ob-
served that the facility was approaching one million dollars in
sales. Since the facility had not reached that level of sales for
some time (as it normally averaged $600,000 to $800,000 in
sales per month), Respondent encouraged its employees to pick
up their production even further to reach the one million dollar
sales mark for the month. (Tr. 77, 79, 87–88, 91–93, 244–245.)
Respondent and its employees ultimately succeeded in reach-
ing the one million dollar sales mark for October. To reward
employees (including supervisors, bargaining unit employees,
and non-bargaining unit employees) for their efforts, Castleman
directed Pettit to give everyone a crisp $100 bill as a bonus.
Accordingly, on November 4, Pettit called an all-employee
meeting to announce the bonus, and later that day, supervisors
passed out envelopes containing $100 bills to all employees
(which all employees accepted). In at least one instance, Pro-
duction Manager Jerome Stallworth told an employee that em-
ployees might earn additional bonuses in the future if they kept
up the good work.13 Respondent did not notify or bargain with
the Union before announcing and distributing the $100 bonuses
to employees. (Tr. 61–62, 76–79, 88–89, 91–93, 99, 126, 177–
178, 204–207, 212–214, 227–228, 243–248.)
2. November 4, 2013—Union meeting
At 4:30 pm, Altman met with Tinker and two other employ-
ees for the Union’s monthly meeting. (Normally, Union meet-
ings occur when the work day ends at 2:30 p.m., but on No-
vember 4, Tinker notified employees that the meeting would
start at 4:30 p.m. because employees were working overtime
and thus would still be on the clock at 2:30 p.m.) The paltry
attendance (Altman plus three employees) at the November 4
Union meeting was surprising because: employees still had
questions related to the recent change in ownership; the Union
was electing officers that day; and Union meetings normally
drew 8–15 employees. (Tr. 125–126, 178–179, 204, 207, 214,
228–231, 238–240.)
3. Respondent’s and Stuart Manufacturing’s history regarding
bonuses and gifts to employees
Before Respondent purchased Stuart Manufacturing’s assets,
Stuart Manufacturing had a varied history regarding gifts and

13 At trial, Castleman agreed that he intended to award employees a
$100 bonus each month that Respondent reached the one million dollar
mark in sales. (Tr. 77, 78–79.) At the time of trial, October 2013 was
the only month that Respondent reached the one million dollar sales
benchmark – accordingly, Respondent has not awarded any additional
cash bonuses based on that production goal. (Tr. 246.)
bonuses to employees. From the 1980’s to the August 2013
asset sale to Respondent, Stuart Manufacturing did not award
cash bonuses to employees for their individual performance,
nor did it award cash bonuses to all employees based on the
Company’s performance. In fact, when Goods-North suggested
awarding “Stuart Dollars” (pretend dollars that could be used to
purchase items at periodic “auctions”) to employees based on
their performance, the Union opposed the idea because em-
ployees would not receive the same amount of Stuart Dollars.
(Tr. 66, 71–72, 90, 102, 229.) However, Stuart Manufacturing
did have a history of giving or awarding the following items to
employees without notifying or bargaining with the Union:
turkeys for Thanksgiving; chances to win (via free draw-
ing/raffle) coffee mugs, hats, T-shirts, bags, cameras, televi-
sions and other items that the purchasing department received
as free gifts from companies like Staples; and food at company
picnics and parties. (Tr. 65, 70–71, 97–98, 100–102, 180–184,
186–188, 191–192, 210–212, 218–219.)
In the past, DCX-CHOL has paid cash awards to employees
in its Illinois and California facilities for their performance.
(Tr. 69.) The November 4 bonus was the first cash award that
Respondent paid to SMI division employees. (Tr. 79–80.) Re-
garding other gifts to SMI division employees, Respondent
provided interested employees with up to two free tickets to see
the movie “Lee Daniels’ The Butler” in August 2013,14 and
provided food and free raffle prizes (e.g., candy, flowers, a
camera) for the company Christmas dinner in December 2013.
Respondent did not notify or bargain with the Union before
providing these gifts. (Tr. 49–50, 71, 101, 179–181, 207–208,
217–218.)
G. November 12, 2013—Second Decertification Petition Filed
On November 12, 2013, employee Michelle Stump filed a
second petition to decertify the Union as the representative of
the employees in the bargaining unit. Twenty-nine employees
in the bargaining unit signed the petition between August 21–
23, 2013.15 Pettit received a copy of the petition in December
2013 (someone placed a copy in his office), and decided to hold
onto it until Respondent figured out what to do with it. (Tr. 73–
74, 95–97, 162–163, 252–254; R. Exh. 1.)
H. November 25, 2013—Union Requests Bargaining for
New CBA
On November 25, 2013, Altman sent a letter to Goods-North
to request that the Union and Respondent commence bargain-
ing for a new collective-bargaining agreement. Altman’s letter
stated as follows:
Dear Ms. Goods-North
With reference to the Agreement now in effect by and be-
tween Stuart Manufacturing, Inc. and [the Union]:
In accordance with the provisions of the Agreement please be

14 Employees at DCX-CHOL’s Illinois and California facilities also
received movie tickets. (Tr. 49–50.)
15 The record does not include a definitive statement about the size
of the bargaining unit, but witnesses estimated that the bargaining unit
includes between 40 and 54 employees. (Tr. 240, 253.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
advised that the Union desires to terminate the agreement.
It is further desired by the Union to meet with you and/or your
representatives as soon as possible within this period prior to
the expiration of the present Agreement, for the purpose of
negotiating a new Agreement.
We are also requesting a list of all employees with their pre-
sent classifications and wage rates, plus the Company’s cost
on all fringe benefits.
An early reply will be appreciated.
(GC Exh. 5, p. 1; see also Tr. 53, 127.)
Goods-North replied to Altman on November 27, essentially
to assert that Altman’s request for bargaining was premature.
Specifically, Goods-North stated:
Dear Dave,
We are in receipt of your letter dated November 25, 2013, re-
questing termination of the current agreement and to negotiate
a new agreement.
The current Agreement states that you may make the request
(60) sixty days prior to the expiration of the Agreement.16 As
you know, the expiration of the Agreement is February 8,
2014.
Your request is pre-mature; therefore, we ask that you with-
draw your request at this time.
(GC Exh. 5, p. 3.) Altman did not respond to Goods-North’s
letter. (Tr. 127.)
I. December 2013—Respondent and the Union Prepare for
Bargaining
Notwithstanding Goods-North’s initial assertion that the Un-
ion requested bargaining prematurely, in December 2013, the
parties agreed to begin bargaining for a new collective-
bargaining agreement on January 6, 2014. The Union also sent
its contract proposal to Respondent, but was disappointed when
Respondent did not reciprocate with its own proposal and in-
stead merely planned to respond to the Union’s submission.
(GC Exh. 6, pp. 1–2; Tr. 128–132; see also GC Exh. 7 (the
Union’s contract proposal, sent on December 31); GC Exh. 8,
p. 1.)
On December 31, 2013, Goods-North emailed Altman to
thank him for sending the Union’s contract proposal. Goods-
North also stated, however, that she would need additional time
to respond to the Union’s proposal, and thus asked to postpone
the first contract bargaining session from January 6 to January
9 or 10. Goods-North concluded her email by stating that she
was “looking forward to reaching an agreement that is amiable
to the Company and the Union.” (GC Exh. 8, p. 1; see also Tr.
54–55, 131.)

16 The collective-bargaining agreement states that the agreement
“shall remain in full force and effect from February 9, 2011 until and
including February 8, 2014 and shall continue thereafter in full force
and effect from year to year unless sixty (60) days prior to the expira-
tion of this Contract . . . either party gives written notice . . . of its de-
sire to terminate the entire Agreement or to change, modify, or add to
the same.” (Jt. Exh. 1, Article XVI.)
J. January 3, 2014—Respondent Notifies the Union that it
Cannot Negotiate for a New Contract
On January 3, 2014, Respondent (through counsel) notified
the Union that Respondent could not negotiate for a new con-
tract. (Jt. Exh. 3; see also Tr. 54 (Goods-North consulted with
Respondent’s attorney after sending her December 31, 2013
email to Altman).) Respondent advised the Union as follows in
its letter:
Dear Mr. Altman:
I recently received a copy of your correspondence dated De-
cember 31, 2013, which included the Union’s Proposals for a
new Collective Bargaining Agreement. At this time, DCX-
CHOL is in possession of a document signed by a majority of
the DCX-CHOL bargaining unit employees indicating that
they do not wish to be represented by the Union going for-
ward.
Importantly, we will honor the Collective Bargaining Agree-
ment that is currently in effect as required by law. However,
the mere fact that the Union has filed a blocking charge does
not alter the fact that we are in possession of a document
signed by a majority of the bargaining unit employees indicat-
ing that they do not wish to be represented by [the Union]. As
such, we believe that we are legally obligated to honor that
Petition and cannot negotiate for a contract that would cover a
period of time within which the Union no longer represents
the employees.
If you believe that we are in error in our legal analysis, please
do not hesitate to provide us immediately law which suggest
we are in error. We would obviously review such information
and reconsider our position. However, we believe that we are
legally bound to honor the clear directive of the majority of
the unit employees.
If you wish to discuss this matter in greater detail or forward
information, please do not hesitate to contact us.
(Jt. Exh. 3; see also Tr. 55, 69–70, 134, 168–169.) The Union
did not respond to Respondent’s January 3, 2014 letter because
the Union viewed the letter as a refusal to bargain. (Tr. 168–
169.)
K. Respondent Changes Employee Pay Dates
In April 2014, Respondent began paying employees on the
fifth and twentieth of each month (instead of every other
Wednesday, as stated in the collective-bargaining agreement)
because Respondent wanted to have its employees on the same
payroll as DCX-CHOL employees in other locations. Re-
spondent did not notify or bargain with the Union before mak-
ing this change to employee pay dates. (Tr. 62–63, 67–68,
126–127, 135, 184–185, 208–209, 229–230, 237–238; Jt. Exh.
1, Section 14.6.)
DISCUSSION AND ANALYSIS
A. Witness Credibility
A credibility determination may rely on a variety of factors,
including the context of the witness’ testimony, the witness’
demeanor, the weight of the respective evidence, established or
SMI/DIVISION OF DCX-CHOL ENTERPRISES, INC. 19
admitted facts, inherent probabilities and reasonable inferences
that may be drawn from the record as a whole. Relco Locomo-
tives, Inc., 358 NLRB 298, 309 (2012), enfd. 734 F.3d 764 (8th
Cir. 2013); see also Roosevelt Memorial Medical Center, 348
NLRB 1016, 1022 (2006) (noting that an ALJ may draw an
adverse inference from a party’s failure to call a witness who
may reasonably be assumed to be favorably disposed to a party,
and who could reasonably be expected to corroborate its ver-
sion of events, particularly when the witness is the party’s
agent). Credibility findings need not be all-or-nothing proposi-
tions — indeed, nothing is more common in all kinds of judi-
cial decisions than to believe some, but not all, of a witness’
testimony. Relco Locomotives, 358 NLRB 298, 309.
In this case, most of the operative facts are not in dispute.
However, where witnesses presented conflicting testimony on
material issues, I have stated my credibility findings in the find-
ings of fact for this decision.
B. Did Respondent Unlawfully Threaten Employees in Viola-
tion of the Act?
1. Applicable legal standard and complaint allegations
Under Section 7 of the Act, employees have the right to en-
gage in concerted activities for their mutual aid or protection.
Section 8(a)(1) of the Act makes it unlawful for an employer
(via statements, conduct, or adverse employment action such as
discipline or discharge) to interfere with, restrain or coerce
employees in the exercise of the rights guaranteed in Section 7.
Relco Locomotives, 358 NLRB 298, 309.
The test for evaluating whether an employer’s conduct or
statements violate Section 8(a)(1) of the Act is whether the
statements or conduct have a reasonable tendency to interfere
with, restrain or coerce union or protected activities. Id. Apart
from a few narrow exceptions (none of which apply in this
case), an employer’s subjective motivation for its conduct or
statements is irrelevant to the question of whether those actions
violate Section 8(a)(1) of the Act. Id.
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) (as well as Section 8(a)(5) and (1)) by: (1) on or
about August 19, 2013, threatening employees with job loss
and plant closure if they did not approve Respondent’s proposal
to contractually change employee pay dates (GC Exh. 1(t),
pars. 5(a), 9); and (2) on or about October 16, 2013, threatening
employees that Respondent would divide into two separate
companies, one unionized and one nonunionized, because the
employees engaged in union and protected concerted activities.
(GC Exh. 1(t), pars. 5(b), 9.)
2. Discussion – August 19 threat of job loss and plant closure
As noted above, the General Counsel maintained that in a
meeting on August 19, Goods-North asserted that Respondent
could close its Fort Wayne facility and move the work if the
Union did not agree to modify the collective-bargaining agree-
ment on certain issues. I find that the General Counsel fell
short of meeting its burden of proving that Goods-North made
the offending statement. Although the General Counsel pre-
sented credible evidence that Goods-North made the offending
statement (see Altman’s and Tinker’s testimony, plus Altman’s
notes from the meeting), Respondent’s evidence to the contrary
was equally credible (see Goods-North’s testimony, plus Re-
spondent’s letter that used a conciliatory tone to request con-
tract modifications). (Findings of Fact (FOF), Section
II(B)(2).) Given the equally credible, but conflicting, accounts,
the General Counsel failed to prove by a preponderance of the
evidence that Respondent (through Goods-North) threatened
job loss and plant closure if the Union did not agree to modify
the collective-bargaining agreement. Accordingly, I recom-
mend that the allegation in paragraph 5(a) of the complaint be
dismissed.
3. Discussion--October 16 threat of dividing into
two companies
In the Findings of Fact, I found that Goods-North did tell the
Union that Respondent would operate under the collective-
bargaining agreement, but Tobin’s company (Stuart Manufac-
turing) would not because it would be non union. (FOF, Sec-
tion II(E)(2).) I therefore turn to the question of whether
Goods-North’s statement had a reasonable tendency to interfere
with, restrain, or coerce employees in the exercise of their Sec-
tion 7 rights.
The context for Goods-North’s statement is significant.
When Goods-North made her representations about whether
Respondent and Stuart Manufacturing would be unionized,
Respondent and Tobin still shared a close, if not cozy, relation-
ship. Immediately after the asset purchase, Respondent advised
the Union that Tobin still owned Stuart Manufacturing, and
added that Respondent and Stuart Manufacturing were working
out the details about the customers that each company would
handle going forward. (FOF, Section II(B)(2).) Consistent
with that statement of ongoing cooperation and coordination
between the two companies, Respondent allowed Tobin to
(among other things): keep using his old office and telephone at
the facility; and enter Respondent’s shop floor to chat with
multiple employees about the possibility of working with him
at Stuart Manufacturing. (FOF, Section II(E)(1).)
In light of the close connection between Respondent and
Stuart Manufacturing at the time (i.e., before the relationship
went sour), and the brother-sister relationship between Tobin
and Goods-North, a reasonable employee would have taken
Goods-North at her word when she represented that Respond-
ent’s employees would be unionized while Stuart Manufactur-
ing’s employees would be non union. Furthermore, by telling
the Union that Stuart Manufacturing would operate as a non
union company once it reopened, Respondent informed the
Union (and its members) that union membership would be in-
compatible with employment at Stuart Manufacturing, and
thereby violated Section 8(a)(1) of the Act by making state-
ments that had a reasonable tendency to interfere with, restrain,
or coerce employees in the exercise of their Section 7 rights.17

17 To the extent that the General Counsel alleged that Respondent’s
October 16 threat to divide Respondent into two companies (one union
and one nonunion) also constituted an unlawful failure and refusal to
bargain in violation of Section 8(a)(5) and (1) of the Act (see GC Exh.
1(t), par. 9), I recommend that this additional theory be dismissed be-
cause such a violation (if found) would be cumulative and would not
materially affect the remedy. See Management Consulting Inc.
(MANCON), 349 NLRB 249, 249 fn. 2 (2007).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
See Ryder Truck Rental, 318 NLRB 1092, 1094–1095 (1995)
(finding that the employer violated Section 8(a)(1) of the Act
when it told employees that the new facility to which they were
transferred would be non union); Kessel Food Markets, 287
NLRB 426, 429 (1987) (explaining that when “an employer
tells applicants that it will be nonunion before it hires its em-
ployees, the employer indicates to the applicants that it intends
to discriminate against the [predecessor’s] employees to ensure
its nonunion status”), enfd. 868 F.2d 881 (6th Cir. 1989), cert.
denied, 493 U.S. 820 (1989).
C. Did Respondent Unlawfully Deny Union Officials Access to
the Employee Break Room?
1. Applicable legal standard and complaint allegation
“Under the unilateral change doctrine, an employer’s duty to
bargain under the Act includes the obligation to refrain from
changing its employees’ terms and conditions of employment
without first bargaining to impasse with the employees’ collec-
tive-bargaining representative concerning the contemplated
changes.” Lawrence Livermore National Security, LLC, 357
NLRB 203, 205 (2011). The Act prohibits employers from
taking unilateral action regarding mandatory subjects of bar-
gaining such as rates of pay, wages, hours of employment and
other conditions of employment. Garden Grove Hospital &
Medical Center, 357 NLRB 653, 653 fn. 4, 5 (2011). Notably,
an employer’s regular and longstanding practices that are nei-
ther random nor intermittent become terms and conditions of
employment even if those practices are not required by a col-
lective-bargaining agreement. Id; see also Palm Beach Metro
Transportation, LLC, 357 NLRB 180, 183–184 (2011) (noting
that the party asserting the existence of a past practice bears the
burden of proof on the issue, and that the evidence must show
that the practice occurred with such regularity and frequency
that employees could reasonably expect the practice to continue
or reoccur on a regular and consistent basis), enfd. 459 Fed.
Appx. 874 (11th Cir. 2012).
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by, on or about August 22, 2013,
denying Union officials access to the employee break room
located in Respondent’s facility. (GC Exh. 1(t), par. 7(b).)
2. Discussion
The evidentiary record establishes that Respondent, and its
predecessor Stuart Manufacturing, had a seven-year past prac-
tice of allowing union representatives to access the employee
break room at its facility upon request after grievance meet-
ings.18 (FOF, Section II(C)(1).) In light of that lengthy and

18 As noted in the findings of fact, the collective-bargaining agree-
ment included a provision stating that a Union representative “shall be
granted admission to the facility during work hours after his request has
been granted by the senior management.” (FOF, Section II(C)(1).)
Since the contract does not include a clear and unmistakable waiver of
the Union’s right to bargain about union access (including changes to
Respondent’s policies or practices regarding such access), I do not find
that the contract language in this case regarding union access under-
mines the General Counsel’s allegation that Respondent unlawfully
changed its union access practices. See Dearborn Country Club, 298
NLRB 915, 920 (1990) (noting that a contractual waiver “will not be
virtually uninterrupted history of union access, I find that Re-
spondent and its predecessor allowed the Union to access its
employee break room with such regularity and frequency that
employees could reasonably expect the practice to continue or
reoccur on a regular and consistent basis.
The Board has held that “access by representatives of an in-
cumbent union for representational purposes is a mandatory
subject of bargaining.” Frontier Hotel & Casino, 323 NLRB
815, 817 (1997), enfd. in pertinent part 118 F.3d 795 (D.C. Cir.
1997); see also Granite City Steel Co., 167 NLRB 310, 315
(1967). As a result, “the Act requires that, instead of imple-
menting its own solution to perceived abuse, the [employer]
bargain with the [u]nion over possible solutions to any prob-
lems with access.” Frontier Hotel & Casino, 323 NLRB at
817; see also Peerless Food Products, 236 NLRB 161, 161
(1978).
In this case, it is undisputed that Respondent did not notify
or bargain with the Union before (on August 22, 2013) unilat-
erally changing its practice of allowing the Union to access
Respondent’s employee break room after grievance meetings.
It is also undisputed that after August 22, Respondent resumed
its practice of allowing the Union to access the employee break
room. (FOF, Section II(C)(2).) Based on those facts, Re-
spondent asserts that it did not violate the Act because the one-
time unilateral change to Respondent’s break room access prac-
tice was not a material, substantial and significant change. See
Peerless Food Products, 236 NLRB at 161 (dismissing an al-
leged Section 8(a)(5) and (1) claim because the unilateral
change at issue was not material, substantial and significant).
I am not persuaded by Respondent’s argument that the one-
time unilateral change to its union access practices was not
material, substantial and significant. To the contrary, the Board
has held that where an employer, through unilateral action,
denies or reduces the ability of the union to access its employ-
ees for representational purposes, the unilateral action or
change is material in nature. See Frontier Hotel & Casino, 323
NLRB at 818 (finding that the employer violated Section
8(a)(5) and (1) when it denied union representatives access to
its facility on one occasion because they refused to sign a doc-
ument acknowledging the employer’s new union access poli-
cy).19 Respondent committed that precise violation here, as it
unilaterally changed its past practice of allowing the Union to
meet with employees in the break room, and thus denied the
Union the ability to confer with employees about workplace

lightly inferred but rather, must be stated in ‘clear and unmistakable’
language”).
19 The Board’s decision in Peerless Food Products, 236 NLRB 161
is distinguishable. In Peerless Food Products, the employer unilateral-
ly changed its union access practices, but only in such a way as to limit
the union’s ability to “engage unit employees in conversations on the
production floor when those conversations are unrelated to contract
matters.” The Board did not find that unilateral change to be material,
substantial and significant. Id. at 161. In this case, by contrast, Re-
spondent’s unilateral change precluded all conversation between the
Union representative and employees at the facility in the day in ques-
tion, including conversations in the employee break room for represen-
tational purposes. That broad unilateral change was unlawful. See
Frontier Hotel & Casino, 323 NLRB at 818.
SMI/DIVISION OF DCX-CHOL ENTERPRISES, INC. 21
issues and concerns (including concerns about Respondent’s
arrival as the new owner, a development that occurred only
days earlier). Accordingly, I find that Respondent violated
Section 8(a)(5) and (1) of the Act when it unilaterally denied
Union officials access to the employee break room at Respond-
ent’s facility on August 22, 2013.
D. Did Respondent Unlawfully Bypass the Union and Deal
Directly with its Employees?
1. Applicable legal standard and complaint allegations
To establish that an employer violated Section 8(a)(5) and
(1) of the Act by engaging in direct dealing, the General Coun-
sel must show: (1) that the employer was communicating di-
rectly with union-represented employees; (2) the discussion
was for the purpose of establishing or changing wages, hours,
and terms and conditions of employment or undercutting the
Union’s role in bargaining; and (3) such communication was
made to the exclusion of the Union. Permanente Medical
Group, 332 NLRB 1143, 1144 (2000) (citing Southern Califor-
nia Gas Co., 316 NLRB 979 (1995)).
In this case, the General Counsel alleges that Respondent un-
lawfully engaged in direct dealing when Tobin, on or about
October 16, 2013, bypassed the Union and directly solicited
employees to resign from Respondent and join him at Stuart
Manufacturing, which would operate as a nonunion company.
(GC Exh. 1(t), par. 7(c).) The General Counsel also alleges that
Respondent engaged in unlawful direct dealing on or about
November 4, 2013, when it bypassed the Union and announced
and distributed $100 bonuses directly to employees. (GC Exh.
1(t), par. 7(d).)
2. Discussion – Tobin’s October 2013 meetings with employees
The General Counsel’s assertion that Respondent (through
Tobin) engaged in unlawful direct dealing with employees
about joining Stuart Manufacturing turns, at least initially, on
whether Tobin was Respondent’s agent. Since there is no dis-
pute that Tobin was not one of Respondent’s employees (and
thus lacked actual supervisory authority), the General Counsel
maintains that Tobin’s conduct is attributable to Respondent
because Tobin had apparent authority to act on Respondent’s
behalf.
“The Board applies the common law principles of agency in
determining whether an employee is acting with apparent au-
thority on behalf of the employer when that employee makes a
particular statement or takes a particular action.” Pan Oston
Co., 336 NLRB 305, 305 (2001) (collecting cases and other
supporting authority). “Apparent authority results from a mani-
festation by the principal to a third party that creates a reasona-
ble belief that the principal has authorized the alleged agent to
perform the acts in question.” Id. at 305–306. “Either the prin-
cipal must intend to cause the third person to believe the agent
is authorized to act for him, or the principal should realize that
its conduct is likely to create such a belief.” Id. at 306. “The
Board’s test for determining whether an employee is an agent
of the employer is whether, under all of the circumstances,
employees would reasonably believe that the employee in ques-
tion was reflecting company policy and speaking and acting for
management,” taking into account “the position and duties of
the employee in addition to the context in which the behavior
occurred.” Id. “The Board may find agency where the type of
conduct that is alleged to be unlawful is related to the duties of
the employee. . . . In contrast, the Board may decline to find
agency where an employee acts outside the scope of his or her
usual duties.” Id. “Although not dispositive, the Board will
consider whether the statements or actions of an alleged em-
ployee agent were consistent with statements or actions of the
employer. The Board has found that such consistencies support
a finding of apparent authority.” Id. And finally, the Board has
emphasized that “an employee may be an agent of the employer
for one purpose but not another.” Id.
Turning to the facts of this case, I find that although Re-
spondent’s employees would have been uncertain about To-
bin’s precise role with Respondent, Respondent’s employees
would reasonably have believed that Tobin was authorized to
act on Respondent’s behalf when he spoke to employees about
joining Stuart Manufacturing. Immediately after the asset pur-
chase, Respondent (and Tobin) made it clear that there had
been a change in ownership, and that Castleman now owned
Respondent and all of its assets. However, Respondent also
indicated that it was still coordinating with Tobin about which
customers Respondent would retain, and which customers To-
bin would handle through Stuart Manufacturing. (FOF, Section
II(B)(1)–(2).) In addition, in September and October 2013,
Respondent allowed Tobin to use his old office and telephone
at Respondent’s facility, and also allowed Tobin to go on the
shop floor to ask employees if they might be interested in work-
ing for him at Stuart Manufacturing.20 (FOF, Section II(E)(1).)
Based on those facts, I find that Tobin had apparent authority to
act on Respondent’s behalf when he spoke to employees about
working for Stuart Manufacturing, because Respondent’s em-
ployees reasonably would have believed that Respondent and
Tobin were working together to restart Stuart Manufacturing,
with Tobin as the point-person for that venture.
Although the General Counsel established that Tobin had
apparent authority to act on Respondent’s behalf when speak-
ing to employees about joining Stuart Manufacturing, the Gen-
eral Counsel did not present sufficient evidence to show that
Tobin’s conversations with employees about joining Stuart
Manufacturing constituted unlawful direct dealing. To the
contrary, although the record establishes that Tobin communi-
cated directly with union-represented employees to the exclu-
sion of the Union, the General Counsel did not show that To-
bin’s conversations with employees were for the purpose of
establishing or changing wages, hours, and terms and condi-
tions of employment, or undercutting the Union’s role in bar-
gaining. When Tobin spoke to employees, he essentially put
out feelers to see if the employees might be interested in joining
him at Stuart Manufacturing. It was not possible to discuss any
specifics about the revamped company (beyond generally as-

20 There is no evidence that shop-floor employees were aware that
Tobin was erroneously receiving payments on some of Respondent’s
contracts, or that he was forwarding those payments to Respondent.
Accordingly, I have not relied on those facts to support my finding that
Tobin had apparent authority to act on Respondent’s behalf while
speaking to employees about working with him at Stuart Manufactur-
ing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
suring employees that their working conditions would remain
the same) because the idea of restarting Stuart Manufacturing
was just that – an idea. Given the uncertainty about Stuart
Manufacturing’s future, and the preliminary nature of Tobin’s
inquiries to employees about whether they might be interested
in working for Stuart Manufacturing, I cannot find that Re-
spondent engaged in unlawful direct dealing even though Tobin
had apparent authority to act as Respondent’s agent regarding
that issue. See generally Fremont Medical Center, 357 NLRB
1899, 1904–1905 (2011) (finding no direct dealing violation
where a manager made preliminary inquiries to employees
about shift changes, but never mentioned the union, had no role
in ongoing bargaining, did not attempt to negotiate with or
make promises to employees, and had no authority to make
shift changes). Accordingly, I recommend that the allegation in
paragraph 7(c) of the complaint be dismissed. (See GC Exh.
1(t), par. 7(c).)
3. Discussion – $100 bonuses to employees
There is no dispute that on November 4, 2013, Respondent
announced and paid a $100 bonus to all employees because the
Company reached one million dollars in sales for the preceding
month. The evidentiary record shows that Respondent did not
notify or bargain with the Union about the bonus, and also
shows that Respondent planned to award the $100 productivity
bonus to all employees for any future month that the facility
reached the one million dollar sales mark. (FOF, Section
II(F)(1).) As its defense, Respondent maintains that the $100
bonus was simply a gift to employees that did not need to be
bargained with the Union.
It is well established that an employer and the representative
of its employees have a mandatory duty to bargain with each
other in good faith about wages, hours, and other terms and
conditions of employment. North American Pipe Corp., 347
NLRB 836, 837 (2006), petition for review denied 546 F.3d
239 (2d Cir. 2008). The Board has held, however, that employ-
ers do not have to bargain about gifts that they give to their
employees. Id. As the Board has explained, items “given to all
employees regardless of their work performance, earnings,
seniority, production, or other employment-related factors” are
properly characterized as gifts. Benchmark Industries, 270
NLRB 22, 22 (1984). Conversely, items that are “so tied to the
remuneration which employees receive for their work that [the
items] are in fact a part of the remuneration” are properly char-
acterized as wages and are subject to the mandatory duty to
bargain. North American Pipe Corp., 347 NLRB at 837.
Applying the Board’s guidance, I find that the $100 bonus at
issue here was not a gift, and instead was a form of compensa-
tion that is subject to the duty to bargain. Respondent awarded
the bonus because its employees, collectively, reached a per-
formance and production goal for the preceding month. In
addition, Respondent promised additional bonuses if employees
reached the productivity goal (one million dollars in sales) in
future months. There was, therefore, a clear nexus between
employees’ production and the bonuses that employees re-
ceived, such that Respondent had a mandatory duty to bargain
with the Union.21
With that issue resolved, I now turn to the allegation that the
General Counsel made about the $100 bonus in the complaint.
The General Counsel alleged that Respondent violated the Act
when it announced and paid the $100 bonus because those acts
constituted unlawful direct dealing with employees. That legal
theory is misplaced, however, because there is no evidence that
Respondent attempted to negotiate or have a discussion with
employees about the $100 bonus – instead, Respondent unilat-
erally announced and implemented the new bonus program. As
the Board has held, “simply notifying the employees that a
unilateral change will affect them does not constitute unlawful
direct dealing.” Capitol Ford, 343 NLRB 1058, 1058, 1067
(2004); see also Spurlino Materials, LLC, 353 NLRB 1198,
1218 (2009) (dismissing a direct dealing allegation because the
employer did not attempt to bargain with employees, but rather,
announced a predetermined company decision), adopted in 355
NLRB 409 (2010), enfd. 645 F.3d 870 (7th Cir. 2011).
Perhaps because it realized this deficiency in its complaint,
the General Counsel argued in its posttrial brief that the $100
bonus was both an unlawful unilateral change and an instance
of unlawful direct dealing. (See GC Posttrial Br. at 18–19.)
While the General Counsel arguably should have amended the
complaint before or during trial to add an allegation that the
$100 bonus constituted an unlawful unilateral change, it is well
settled that the Board may find and remedy a violation even in
the absence of a specified allegation in the complaint if the
issue is closely connected to the subject matter of the complaint
and has been fully litigated. See Pergament United Sales, 296
NLRB 333, 335 (1989), enfd. 920 F.2d 130 (2d Cir. 1990)).
That standard has been met here, since: (a) the parties fully
litigated the $100 bonus by, among other things, presenting
extensive evidence about the nature of the bonus, both Stuart
Manufacturing’s and Respondent’s past practices regarding
gifts and bonuses, and the fact that Respondent did not notify or
bargain with the Union about the bonus; and (b) the (new) alle-
gation that Respondent’s $100 bonus is an unlawful unilateral
change is closely related to the (original) allegation that Re-
spondent engaged in unlawful direct dealing when it announced
and implemented the $100 bonus, since under either theory,
the General Counsel maintains that Respondent unlawfully
failed and refused to bargain with the Union about the bonuses.
I therefore will consider whether Respondent violated Section
8(a)(5) and (1) of the Act when it unilaterally announced and
implemented the $100 bonus.
Applying the unilateral change standard (set forth in Section
C(1), supra) to the findings of fact in this case, I find that the
$100 bonus at issue here constitutes an unlawful unilateral
change that violated Section 8(a)(5) and (1) of the Act. The

21 I am not persuaded by Respondent’s argument that the $100 bo-
nus here was a gift because it was given to all employees regardless of
their individual performance. Although it is true that an individual
employee could theoretically ride the coattails of his or her coworkers
and receive a bonus despite contributing little to the cause, the fact
remains that the bonus depended on employees collectively achieving
some measure of production. The fact that the bonus hinged on em-
ployee production makes it a form of remuneration that requires bar-
gaining.
SMI/DIVISION OF DCX-CHOL ENTERPRISES, INC. 23
$100 bonus was a new development at Respondent’s facility
that had a direct impact on employee compensation and the
terms and conditions of employment. Respondent fell short
with its attempt to show that the $100 bonus was consistent
with past practices (of both Stuart Manufacturing and DCX-
CHOL), because neither company had an established practice
of giving employees at the Fort Wayne facility cash bonuses for
collectively reaching a productivity goal. Although both Stuart
Manufacturing and Respondent occasionally treated employees
to holiday meals, Thanksgiving turkeys, and free raffles, all of
those instances were examples of gifts to employees that did
not require bargaining. See Benchmark Industries, 270 NLRB
at 22 (finding that Christmas hams and dinners given to em-
ployees over a period of three years were gifts that did not trig-
ger a duty to bargain); see also FOF, Section II(F)(3). The
$100 bonus, by contrast, was an unprecedented award of addi-
tional compensation at the facility since there was no estab-
lished practice of paying bonuses to employees for collectively
reaching a productivity goal. See Philadelphia Coca-Cola
Bottling Co., 340 NLRB 349, 353 (2003) (finding that the em-
ployer did not have a past practice of awarding bonuses, since,
at most, the employer intermittently handed out bonuses to
specific employees at its discretion), enfd. 112 Fed. Appx. 65
(D.C. Cir. 2004). Since the $100 bonus was a form of compen-
sation subject to a mandatory duty to bargain, and since Re-
spondent did not fulfill its duty to bargain with the Union be-
fore implementing the $100 bonus, Respondent violated Sec-
tion 8(a)(5) and (1) of the Act when it unilaterally implemented
the bonus.
In sum, I recommend that the direct dealing allegation in
paragraph 7(d) of the complaint be dismissed. (See GC Exh.
1(t), par. 7(d).) I find, however, that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act when it unilaterally changed the
terms and conditions of employment on November 4, 2013, by
announcing and implementing a $100 bonus based on produc-
tivity.
E. Did Respondent Unlawfully Withdraw Recognition from
the Union?
1. Applicable legal standard and complaint allegation
In UGL-UNICCO Service Co., 357 NLRB 801 (2011), the
Board reinstated the “successor bar” rule. As the Board ex-
plained, the successor bar rule applies where a successor em-
ployer has abided by its legal obligation to recognize an incum-
bent union, and the “contract bar” is inapplicable. “In such
cases, the union is entitled to a reasonable period of bargaining,
during which no question concerning representation that chal-
lenges its majority status may be raised through a petition for
election raised by employees, by the employer, or by a rival
union; nor, during this period, may the employer unilaterally
withdraw recognition from the union based on a claimed loss of
majority support, whether arising before or during the period.”
Id., at 808.
The Board also defined the term “reasonable period of bar-
gaining” for purposes of the successor bar rule. Specifically,
“where the successor employer has expressly adopted existing
terms and conditions of employment as the starting point for
bargaining, without making unilateral changes,” the reasonable
period of bargaining shall be 6 months, measured from the date
of the first bargaining meeting between the union and the suc-
cessor employer.” Id., at 809. However, “where the successor
employer recognizes the union, but unilaterally announces and
establishes initial terms and conditions of employment before
proceeding to bargain,” the reasonable period of bargaining
shall be a minimum of 6 months and a maximum of 1 year,
measured from the date of the first bargaining meeting between
the union and the successor employer. Id. The party invoking
the successor bar rule bears the burden of showing that a rea-
sonable period of bargaining has not elapsed. Id.
In this case, the General Counsel alleges that Respondent vi-
olated Section 8(a)(5) and (1) of the Act when it withdrew
recognition from the Union on or about January 3, 2014, and
thereafter refused to meet and bargain with the Union to nego-
tiate a successor collective-bargaining agreement. (GC Exh.
1(t), pars. 7(h)–(i).)
2. Discussion
After considering the relevant facts, I find that the successor
bar applies in this case, and I find that Respondent violated
Section 8(a)(5) and (1) of the Act by withdrawing recognition
from the Union on January 3, 2014 while the successor bar was
still in effect. The evidentiary record establishes that on or
about August 19, 2013, Respondent acknowledged that it is a
successor employer and recognized the Union as the exclusive
collective-bargaining representative of employees in the bar-
gaining unit. Respondent also accepted the terms of the exist-
ing collective-bargaining agreement as the starting point for
bargaining (i.e., without making unilateral changes, though
Respondent did attempt to negotiate certain changes). (FOF,
Section II(B)(2), (D).) Under those circumstances, the Union
was entitled to a six month period of bargaining, during which
Respondent was precluded (under the successor bar) from uni-
laterally withdrawing recognition from the Union based on a
claimed loss of majority support. UGL-UNICCO Service Co.,
357 NLRB 801, 808.22
Respondent did not comply with the six-month period of
bargaining required by the successor bar. Instead, as alleged in
the complaint and established in the evidentiary record, Re-
spondent withdrew recognition from the Union on January 3,
2014, without participating in any bargaining sessions with the
Union before or after that date despite the Union’s requests for
bargaining. (FOF, Section II(J).) I find that Respondent’s
withdrawal of recognition from the Union and failure and re-
fusal to bargain under these circumstances violated Section
8(a)(5) and (1) of the Act.23

22 Respondent questions the validity of the Board’s decision in
UGL-UNICCO Service Co. (see R. Posttrial Br. at 22–24.), but the
Board’s decisions are binding on my analysis. Respondent retains the
right, of course, to present its arguments about the UGL-UNICCO
Service Co. decision directly to the Board if Respondent decides to
appeal my decision on this issue.
23 Because I have found that Respondent violated Section 8(a)(5)
and (1) of the Act by withdrawing recognition from the Union in viola-
tion of the successor bar, I need not rule on the General Counsel’s
alternative theory that Respondent’s decision to withdraw recognition
from the Union based on a claimed loss of majority support was tainted
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
F. Did Respondent Violate the Act when it Unilaterally
Changed Employee Pay Dates?
1. Applicable legal standard and complaint allegation
As previously noted, “[u]nder the unilateral change doctrine,
an employer’s duty to bargain under the Act includes the obli-
gation to refrain from changing its employees’ terms and condi-
tions of employment without first bargaining to impasse with
the employees’ collective-bargaining representative concerning
the contemplated changes.” Lawrence Livermore National
Security, LLC, 357 NLRB 203, 205. The Act prohibits em-
ployers from taking unilateral action regarding mandatory sub-
jects of bargaining such as rates of pay, wages, hours of em-
ployment and other conditions of employment. Garden Grove
Hospital & Medical Center, 357 NLRB 653, 653 fn. 4, 5.
The General Counsel alleges that on or about March 27,
2014, Respondent unilaterally changed the pay dates of bar-
gaining unit employees without notifying the Union or giving
the Union the opportunity to bargain about the change. (GC
Exh. 1(t), pars. 7(e), (g).)
2. Discussion
The unilateral change doctrine not only applies to changes to
employees’ terms and conditions of employment while a col-
lective-bargaining agreement is in effect, but also to changes to
employees’ terms and conditions of employment after a collec-
tive-bargaining agreement expires (with certain exceptions not
applicable here). Specifically, if contract negotiations between
an employer and a union are pending (e.g., negotiations for a
successor collective-bargaining agreement), an employer has a
duty to maintain the status quo with the terms and conditions of
employment set forth in an expired collective-bargaining
agreement. Southwest Ambulance, 360 NLRB 835, 843(2014).
The collective-bargaining agreement in this case, though it
expired on February 8, 2014, requires Respondent to pay em-
ployees every other Wednesday. It is undisputed that in April
2014, Respondent unilaterally changed employee pay dates to
the fifth and twentieth of each month, without first notifying or
bargaining with the Union. (FOF, Section II(A)(2), (K).)
By unilaterally changing employee pay dates from what was
specified in the expired collective-bargaining agreement, and
by making this change without notifying or bargaining with the
Union, Respondent failed to fulfill its obligation to maintain the
status quo regarding employees’ terms and conditions of em-
ployment. I therefore find that Respondent violated Section
8(a)(5) and (1) of the Act as alleged in paragraphs 7(e) and (g)
of the complaint.
CONCLUSIONS OF LAW
1. By, on or about August 22, 2013, unilaterally denying
Union officials access to the employee break room at Respond-
ent’s facility after an employee grievance meeting, Respondent
violated Section 8(a)(5) and (1) of the Act.
2. By, on or about October 16, 2013, threatening employees

by the presence of significant, unremedied unfair labor practices. (See
GC Posttrial Br. at 21–23.) However, I note that I have made findings
of fact (including credibility findings) that are relevant to that theory,
should further analysis be necessary.
that Respondent would divide into two separate companies, one
union and one nonunion, Respondent violated Section 8(a)(1)
of the Act.
3. By, on or about November 4, 2013, unilaterally changing
employees’ terms and conditions of employment by announc-
ing and implementing a $100 bonus based on productivity
without first notifying or bargaining with the Union, Respond-
ent violated Section 8(a)(5) and (1) of the Act.
4. By, on or about January 3, 2014, withdrawing recognition
from the Union and thereafter refusing to meet and bargain
with the Union to negotiate a successor collective-bargaining
agreement when a successor bar was still in effect, Respondent
violated Section 8(a)(5) and (1) of the Act.
5. By, in or about April 2014, unilaterally changing employ-
ee pay dates without notifying or bargaining with the Union,
Respondent violated Section 8(a)(5) and (1) of the Act.
6. By committing the unfair labor practices stated in conclu-
sions of law 1–5 above, Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
7. I recommend dismissing the complaint allegations that
are not addressed in the Conclusions of Law set forth above.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the
policies of the Act.
Respondent must make its employees whole for any loss of
earnings and other benefits that resulted from its unilateral and
unlawful decisions to: on or about November 4, 2013, change
employees’ terms and conditions of employment by announc-
ing and implementing a $100 bonus based on productivity; and,
in or about April 2014, change employee pay dates. Backpay
for these violations shall be computed in accordance with Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest at the rate prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
For all backpay required herein, Respondent shall file a re-
port with the Social Security Administration allocating backpay
to the appropriate calendar quarters. Respondent shall also
compensate affected bargaining unit employees for the adverse
tax consequences, if any, of receiving one or more lump-sum
backpay awards covering periods longer than 1 year. Tortillas
Don Chavas, 361 NLRB 101 (2014).
In addition to the standard remedies that I described above,
the General Counsel requested that I also order Respondent to
have a representative read a copy of the notice to employees
during work time. The Board has required that a notice be read
aloud to employees where an employer’s misconduct has been
sufficiently serious and widespread that reading of the notice
will be necessary to enable employees to exercise their Section
7 rights free of coercion. This remedial action is intended to
ensure that employees will fully perceive that the respondent
and its managers are bound by the requirements of the Act.
Marquez Bros. Enterprises, 358 NLRB 509, 510 (2012).
SMI/DIVISION OF DCX-CHOL ENTERPRISES, INC. 25
Applying that standard, I do not find that Respondent’s mis-
conduct in this case was sufficiently serious and widespread to
warrant an order requiring the notice to be read aloud to em-
ployees by one of Respondent’s representatives. Although I
have found that Respondent committed various unfair labor
practices, this case does not involve widespread misconduct. In
addition, this is not a case where bargaining unit employees are
unfamiliar with exercising their Section 7 rights or being repre-
sented by a Union – to the contrary, the Union has represented
the bargaining unit at the facility (through various changes in
ownership) for over thirty years. (FOF, Section II(A)(2).)
Under those circumstances, the standard remedies that I have
set forth in my order will serve the purpose of notifying Re-
spondent and bargaining unit employees of the unfair labor
practices that Respondent committed and the rights of employ-
ees under Section 7 of the Act. I therefore deny the General
Counsel’s request that I order Respondent to have one of its
representatives read the notice to employees.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended24
ORDER
Respondent, SMI/Division of DCX-CHOL Enterprises, Inc.,
Fort Wayne, Indiana, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Unilaterally denying Indiana Joint Board, Retail, Whole-
sale, Department Store Union, United Food & Commercial
Workers, Local 835 (Union) officials access to the employee
break room at Respondent’s facility after employee grievance
meetings.
(b) Threatening employees that Respondent will divide into
two separate companies, one union and one nonunion.
(c) Unilaterally changing employees’ terms and conditions
of employment by announcing and implementing a $100 bonus
based on productivity without first notifying or bargaining with
the Union.
(d) Withdrawing recognition from the Union and failing and
refusing to meet and bargain with the Union to negotiate a col-
lective-bargaining agreement for employees in the following
appropriate bargaining unit:
[A]ll full-time and regular part-time Production and Mainte-
nance employees, but excluding Guards, Professional em-
ployees, Technical employees, Supervisors, and all other of-
fice employees at the Company’s production facilities located
in the City of Fort Wayne and County of Allen, Indiana.
(e) Unilaterally changing employee pay dates without first
notifying or bargaining with the Union.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-

24 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.
tuate the policies of the Act.
(a) On request and for a reasonable period of time of six
months (measured from the date of the first bargaining meet-
ing), bargain with the Union as the exclusive collective-
bargaining representative of the employees in the following
appropriate bargaining unit and, if an understanding is reached,
embody the understanding in a signed agreement.
[A]ll full-time and regular part-time Production and Mainte-
nance employees, but excluding Guards, Professional em-
ployees, Technical employees, Supervisors, and all other of-
fice employees at the Company’s production facilities located
in the City of Fort Wayne and County of Allen, Indiana.
(b) Make whole Respondent’s employees and former em-
ployees for any and all loss of wages and other benefits in-
curred as a result of Respondent’s unlawful unilateral decisions
to: announce and implement $100 bonuses and change employ-
ee pay dates, with interest, as provided for in the remedy sec-
tion of this decision.
(c) Compensate bargaining unit employees for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards covering periods longer than 1 year, and file a report
with the Social Security Administration allocating the backpay
awards to the appropriate calendar quarters for each unit em-
ployee.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cilities in Fort Wayne, Indiana, copies of the attached notice
marked “Appendix.”
25
Copies of the notice, on forms provided
by the Regional Director for Region 25, after being signed by
Respondent’s authorized representative, shall be posted by
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 Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, Respondent has gone
out of business or closed the facility involved in these proceed-
ings, Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by Respondent at any time since August 22,

25 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 BOARD26
2013.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. September 23, 2014
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 no-
tice.
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 benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT unilaterally deny Indiana Joint Board, Retail,
Wholesale, Department Store Union, United Food & Commer-
cial Workers, Local 835 (Union) officials access to the employ-
ee break room at our facility after employee grievance meet-
ings.
WE WILL NOT threaten employees that we will divide into
two separate companies, one union and one nonunion.
WE WILL NOT unilaterally change employees’ terms and con-
ditions of employment by announcing and implementing a
$100 bonus based on productivity without first notifying or
bargaining with the Union.
WE WILL NOT withdraw recognition from the Union and fail
and refuse to meet and bargain with the Union to negotiate a
collective-bargaining agreement for employees in the following
appropriate bargaining unit:
[A]ll full-time and regular part-time Production and Mainte-
nance employees, but excluding Guards, Professional em-
ployees, Technical employees, Supervisors, and all other of-
fice employees at the Company’s production facilities located
in the City of Fort Wayne and County of Allen, Indiana.
WE WILL NOT unilaterally change employee pay dates with-
out first notifying or bargaining with the Union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the National Labor Relations Act.
WE WILL, on request and for a reasonable period of time of 6
months (measured from the date of the first bargaining meet-
ing), bargain with the Union as the exclusive collective-
bargaining representative of the employees in the following
appropriate bargaining unit and, if an understanding is reached,
embody the understanding in a signed agreement.
[A]ll full-time and regular part-time Production and Mainte-
nance employees, but excluding Guards, Professional em-
ployees, Technical employees, Supervisors, and all other of-
fice employees at the Company’s production facilities located
in the City of Fort Wayne and County of Allen, Indiana.
WE WILL make whole employees and former employees for
any and all loss of wages and other benefits incurred as a result
of our unlawful unilateral decisions to announce and implement
$100 bonuses and change employee pay dates.
WE WILL compensate bargaining unit employees for the ad-
verse tax consequences, if any, of receiving one or more lump-
sum backpay awards covering periods longer than 1 year.
WE WILL file a report with the Social Security Administra-
tion allocating backpay to the appropriate quarters for each
bargaining unit employee.
SMI/DIVISION OF DCX-CHOL ENTERPRISES, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/25-CA-117090 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273–1940.