Richfield Hospitality, Inc. as Managing Agent for Kahler Hotels, LLC

National Labor Relations Board - Unpublished Board Decisions

Jun 26, 2020

369 N.L.R.B. 111 (N.L.R.B. 2020)

369 NLRB No. 111
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.
Richfield Hospitality, Inc. as Managing Agent for
Kahler Hotels, LLC and UNITE HERE Interna-
tional Union Local 21. Case 18–CA–176369
June 26, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On May 4, 2017, Administrative Law Judge Keltner W.
Locke issued the attached decision. The Respondent filed
exceptions with supporting argument, and the General
Counsel filed an answering brief. The General Counsel
also filed cross-exceptions with supporting argument, and
the Respondent filed an answering brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
judge’s rulings,1 findings,2 and conclusions only to the ex-
tent consistent with this Decision and Order.3
In Richfield I, the Board found that the Respondent
committed violations of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act while the parties were bar-
gaining in 2015 for a successor collective-bargaining
agreement covering employees in a bargaining unit span-
ning four Rochester, Minnesota area hotels managed by
the Respondent. The instant case involves allegations that
the Respondent committed additional violations of Sec-
tion 8(a)(1) and (5) after the parties resumed bargaining in
2016.
For the reasons set forth below, we affirm the judge’s
findings that the Respondent violated Section 8(a)(5) and
(1) by engaging in surface bargaining since about Febru-
ary 2016 and by unilaterally implementing portions of its
1 We find that the judge correctly refused to apply collateral estoppel
to the findings made by Administrative Law Judge Sharon L. Steckler in
Richfield Hospitality, Inc. as Managing Agent for Kahler Hotels, LLC,
368 NLRB No. 44 (2019) (Richfield I), because, at the time of the judge’s
decision, Judge Steckler’s decision was not yet final. As explained be-
low, however, we now rely on some of the findings of fact and legal
conclusions in Judge Steckler’s decision given that the Board has subse-
quently affirmed it.
2 The General Counsel 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 preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cselect allir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In the absence of exceptions, we adopt the judge’s dismissal of the
complaint allegations that the Respondent, by its Area Managing
March 24, 2015 bargaining proposal in May and July
2016. We reverse the judge’s finding that the Respondent
violated Section 8(a)(1) of the Act by threatening employ-
ees that union representation was futile.
I. SURFACE BARGAINING AND UNILATERAL WAGE
CHANGE
A. Relevant Facts
The parties’ last bargaining session in 2015 took place
on September 25.4 They resumed bargaining for a succes-
sor contract on February 25, 2016.5 At that time, several
of the unfair labor practices found in Richfield I remained
unremedied. Of particular relevance to the resumed nego-
tiations, the Respondent adhered to its unlawful unilateral
discontinuation of longevity wage increases for certain
unit employees and continued to withhold relevant re-
quested information regarding the Respondent’s costs for
the Union’s health and welfare proposal for bargaining-
unit employees. During the February 25 bargaining ses-
sion, the Union submitted and explained a new proposal
on some issues. The Respondent’s chief negotiator, Mi-
chael Henry, made no immediate response, indicating that
he first needed to speak with management officials who
were not present at the meeting.
On March 1, Henry informed the Union in an email6
that the parties were at impasse and that, accordingly, the
Respondent intended to implement portions of its last,
best, and final offer dated March 24, 2015 (“the 2015 final
offer”). The Respondent subsequently retracted this dec-
laration of impasse. On March 11, Union President Nancy
Goldman requested that the Respondent provide dates for
negotiations. Five days later, Henry sent an email to Gold-
man that again stated that the parties were at impasse.
This time, Henry declared a “single-issue impasse” over
the Respondent’s 2015 final offer because the Union con-
tinued to reject the Respondent’s wage proposal, with the
exception of agreement to the proposed new start rates for
Director Bill Dwyer, threatened employees in violation of Sec. 8(a)(1)
by questioning the effectiveness of the Union, stating that the Union was
“not a real union,” and telling employees that they could face layoffs if
they spoke about Judge Steckler’s decision.
3 We shall modify the judge’s remedy, Conclusions of Law, and rec-
ommended Order to conform to our findings, to the Board’s standard
remedial language, and in accordance with our decision in AdvoServ of
New Jersey, Inc., 363 NLRB No. 143 (2016), and our recent decision in
Danbury Ambulance Service, Inc., 369 NLRB No. 68 (2020). We shall
also substitute a new notice to conform to the Order as modified.
4 As found in Richfield I, the parties had agreed to meet again for
bargaining on October 20, but the Respondent unlawfully cancelled that
session on October 19.
5 All dates are in 2016, unless otherwise noted.
6 Unless otherwise stated, all communications between the parties
after February 25 were by email.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
the first year.7 In spite of this impasse declaration,
Henry’s email noted that the Respondent was prepared to
continue and complete discussions on the “handful” of
nonwage proposals made by the Union on February 25.
On March 25, the Respondent provided its responses to
these proposals. They included tentative agreements with
respect to some of the nonwage issues.
No further bargaining took place before May 5, when
the Respondent yet again informed the Union that the par-
ties were at a single-issue impasse over the wage provi-
sions in the Respondent’s 2015 final offer. On this occa-
sion, however, the Respondent stated its intention to im-
plement, on May 16, key wage provisions as well as some
other proposals in the 2015 final offer, including proposals
relating to temporary employees’ hours and reassignment
of employees to other hotels. Goldman replied on that
same date, stating that the Union disagreed that the parties
were at impasse and offering new dates to meet. The next
day, the Respondent sent another email reiterating that the
parties were at impasse and asking if the Union had any
new proposals.
On May 10, Goldman sent an email to the Respondent
offering to meet for negotiations in early June. On May
12, Bill Dwyer, who had replaced Henry as the Respond-
ent’s lead negotiator, replied that the parties were at a sin-
gle-issue impasse related to wages and that the Respond-
ent would not discuss its wage proposal further unless the
Union offered a new wage proposal. However, Dwyer’s
letter reaffirmed the willingness expressed in Henry’s
March 16 email to meet, without any preconditions, for
further discussion of the handful of issues raised by the
Union’s February 25 proposals.8
On May 16, the Respondent implemented parts of its
2015 final offer, but did not implement the proposals for
employee reassignment and temporary employees. The
parties nevertheless met for bargaining on June 7, and they
reached additional tentative agreements on non-wage is-
sues. Goldman also orally presented a new economic pro-
posal, which she emailed to the Respondent after the meet-
ing. The proposal included a restatement of the health and
welfare proposal that the Union made on February 25.
On June 22, the Respondent’s counsel sent Goldman a
letter reviewing the parties’ bargaining history, rejecting
the Union’s new wage proposal as untimely and insuffi-
cient, and rejecting the health and welfare proposal “based
7 The General Counsel contends that the judge incorrectly found that
the Respondent’s wage proposal was comprised only of a spreadsheet
when the parties resumed negotiations on February 25. We find merit in
the General Counsel’s exception, and find that the Respondent’s wage
proposal on February 25, which had not changed from its 2015 final of-
fer, consisted of a wage spreadsheet and individual pie charts. The
judge’s erroneous factual finding on this point does not affect our analy-
sis of whether the Respondent engaged in surface bargaining.
on cost.” The letter also stated that the proposals for em-
ployee reassignment and temporary employees had not
been implemented on May 16 in anticipation of possible
resolution in bargaining but now would be implemented
on July 7 in light of the Union’s bargaining positions on
June 7. Those proposals were unilaterally implemented
on that date.
B. Analysis
1. Surface Bargaining. For the following reasons, we
agree with the judge that the Respondent violated Section
8(a)(5) and (1) of the Act by engaging in surface bargain-
ing since about February 2016. Section 8(d) of the Act
requires “the employer to meet at reasonable times with
the representative of its employees and confer in good
faith with respect to wages, hours, and other terms and
conditions of employment.” Although the duty to bargain
in good faith under Section 8(d) “does not compel either
party to agree to a proposal or to make a concession,” the
Act is predicated on the notion that the parties must have
a sincere desire to enter into “good faith negotiation with
an intent to settle differences and arrive at an agreement.”
Mid-Continent Concrete, 336 NLRB 258, 259 (2001),
enfd. 308 F.3d 859 (8th Cir. 2002). “[M]ere pretense at
negotiations with a completely closed mind and without a
spirit of cooperation does not satisfy the requirements of
the Act.” Id.
In determining whether an employer has engaged in
overall bad-faith bargaining, the Board examines the to-
tality of the employer’s conduct, both at and away from
the bargaining table. Id. The Board then determines
“whether the employer is engaging in hard but lawful bar-
gaining to achieve a contract that it considers desirable or
is unlawfully endeavoring to frustrate the possibility of ar-
riving at any agreement.” Public Service Co. of Oklahoma
(PSO), 334 NLRB 487, 487 (2001), enfd. 318 F.3d 1173
(10th Cir. 2003).
In finding that the Respondent engaged in unlawful sur-
face bargaining during the period at issue, we rely on the
following three factors.
(a) The impact on 2016 negotiations of unremedied un-
fair labor practice violations found in Richfield I. The
Board has repeatedly held that a lawful impasse cannot be
reached in the presence of a serious unremedied unfair
8 We agree with the judge’s finding that the Respondent did not con-
dition further bargaining on the Union’s presentation of a new wage pro-
posal. On the contrary, both Henry and Dwyer indicated a willingness
to bargain on issues relating to the Union’s February 25 proposals and
suggested that there could be bargaining on wages if the Union made a
new proposal.
RICHFIELD HOSPITALITY, INC. 3
labor practice that affects the negotiations.9 As stated
above, the Richfield I decision affirmed the judge’s find-
ings that the Respondent violated Section 8(a)(5) during
the parties’ 2015 negotiations by unilaterally discontinu-
ing longevity increases for certain unit employees and by
failing to provide the Union with requested information
regarding the Respondent’s costs for the Union’s health
and welfare proposal for bargaining-unit employees. Both
of these violations remained unremedied throughout the
2016 negotiations.
We find that these violations necessarily had serious ad-
verse effects on bargaining in 2016. The unilateral change
eliminating some employees’ longevity increases directly
impacted the wage bargaining that the Respondent has
characterized as the central point of contention in the ne-
gotiations. This unlawful action “moved the baseline”10
as to this issue, making it more difficult for the parties to
come to an agreement. Similarly, the Respondent’s failure
to provide requested cost information about the Union’s
health and welfare proposal fettered bargaining about an
economic issue of great importance to the Union and lim-
ited its ability to make quid pro quo concessions. In fact,
the June 22 letter from the Respondent’s counsel rejected
the Union’s February 25 health and welfare proposal
“again, based on cost,” underscoring that the Respond-
ent’s unlawful refusal to provide this relevant requested
cost information continued to negatively affect the Un-
ion’s ability to bargain in 2016.
(b) The Respondent’s premature declarations of im-
passe. Precisely because impasse temporarily suspends
the duty to bargain, a premature declaration of impasse is
often an indicium of bad-faith bargaining. Grosvenor Re-
sort, 336 NLRB 613, 615 (2001), enfd. 52 Fed. Appx. 485
(11th Cir. 2002); CJC Holdings, Inc., 320 NLRB 1041,
1044–1046 (1996), enfd. 110 F.3d 794 (5th Cir. 1997).
That is what happened here. After a 5-month bargaining
hiatus, the parties engaged in only a single face-to-face ne-
gotiating session, at which the Union made some new bar-
gaining proposals. Without responding to those pro-
posals, the Respondent’s chief negotiator declared im-
passe on March 1. He later withdrew that declaration only
to proclaim a single-issue impasse on March 16 while at
the same time expressing a willingness to bargain over
non-economic proposals made by the Union on February
25. On March 25, the Respondent addressed these pro-
posals, agreeing to some of them.
9 E.g., Dynatron/Bondo Corp., 333 NLRB 750, 752 (2001), applying
Alwin Mfg. Co., 326 NLRB 646, 688 (1998), enfd. 192 F.3d 133 (D.C.
Cir. 1999).
10 See Alwin, 192 F.3d at 139 (finding that, by changing the status quo,
a unilateral change may move the baseline for negotiations and alter the
parties’ expectations about what they can achieve, making it harder for
Then, without any further bargaining sessions, the Re-
spondent yet again declared single-issue impasse on May
5 and stated its intent to implement the wage parts of its
2015 final offer, even while reiterating a willingness to
bargain over other issues and to discuss wages if the Union
had a new proposal to make. In fact, on May 10, the Union
requested to meet for that purpose on June 7. Although
the Respondent proceeded, on May 16, to implement some
of the provisions identified in its May 5 single-issue im-
passe declaration, it did not implement the provisions for
employee reassignment and temporary employees, hold-
ing open the possibility of resolution through bargaining.
Those provisions were implemented only after additional
bargaining on June 7.
As described above, the record shows that the parties
lacked a clear contemporaneous understanding that they
were at impasse on any of the several occasions when the
Respondent declared impasse. Both parties expressed the
belief that additional bargaining might lead to agreement
on non-economic and, perhaps, wage issues. See, e.g.,
Grinnell Fire Protection Systems Co., 328 NLRB 585,
586 (1999) (“[F]or an impasse to occur, neither party must
be willing to compromise.”), enfd. 236 F.3d 187 (4th Cir.
2000). Indeed, on March 25, they reached agreement on
some noneconomic issues. At the same time, the Re-
spondent repeatedly sent the opposite signal with its im-
passe declarations. We find that the Respondent’s re-
peated premature declarations of impasse belied a good-
faith intention to engage in meaningful bargaining to-
wards a final agreement.
(c) The Respondent’s failure to show that impasse over
the single issue of wages created an overall impasse in
bargaining on and after May 5. With limited exceptions
not applicable here, the Board requires that when parties
are engaged in contract negotiations, an overall impasse in
bargaining must exist before an employer may unilaterally
implement some or all of the terms encompassed by its
final offer. Bottom Line Enterprises, 302 NLRB 373, 374
(1991), enfd. mem. sub nom. Master Window Cleaning,
Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994). However, the
Board has recognized that an overall impasse can occur
based on a deadlock over a single issue. See, e.g., CalMat
Co., 331 NLRB 1084, 1097 (2000) (“A single issue . . .
may be of such overriding importance that it justifies an
overall finding of impasse on all of the bargaining is-
sues.”).
the parties to come to an agreement); Lafayette Grinding Corp., 337
NLRB 832, 833 (applying Alwin and finding that prior unilateral cessa-
tion of health and welfare payments impeded bargaining on key issue by
pressuring union to seek restoration of status quo rather than pursue its
demands for an increase in payments).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
In order to prove overall impasse based on a single is-
sue, the party asserting impasse must establish three
things: (1) that a good-faith impasse existed as to a partic-
ular issue; (2) that the issue was critical; and (3) that the
impasse on this critical issue “led to a breakdown in over-
all negotiations—in short, that there can be no progress on
any aspect of the negotiations until the impasse relating to
the critical issue is resolved.” Id. (emphasis added); see
also Sacramento Union, 291 NLRB 552, 554 (1988), enfd.
sub nom. Sierra Pub. Co. v. NLRB, 888 F.2d 1394 (9th
Cir. 1989).
The Respondent’s failure to prove the third factor is,
standing alone, sufficient to preclude a finding that im-
passe over the single issue of wages had created a valid
overall impasse as of any of the dates on which the Re-
spondent declared a single-issue impasse. As previously
stated, the Respondent’s response to the Union’s February
25 proposal included tentative agreements on non-wage
issues. Moreover, the Respondent’s May 5 email ex-
pressed a willingness to meet again to discuss the Union’s
February 25 noneconomic proposals and any new pro-
posal the Union would make on wages. Five days later,
the Union reiterated its desire to meet on June 7 for further
bargaining. Furthermore, notwithstanding the Respond-
ent’s partial implementation of new wage terms on May
16, the parties met on June 7 and, in fact, reached some
tentative agreements on nonwage issues. The Union also
orally presented a new wage proposal, a step the Respond-
ent had repeatedly indicated could lead to renewed bar-
gaining over wages.
Because progress in negotiations was still possible on
non-wage and wage issues when the Respondent partially
implemented certain parts of its 2015 final offer on May
16, and because the parties subsequently bargained about
non-wage matters on and after June 7, we find that the Re-
spondent did not establish the existence of a single-issue
impasse. See Prime Healthcare Centinela, LLC d/b/a
Centinela Hospital Medical Center, 363 NLRB No. 44,
slip op. at 3 (2015) (finding that even if the evidence
showed an impasse over healthcare, the employer failed to
show that this deadlock caused a breakdown in overall
bargaining).
Based on the foregoing, we affirm the judge’s finding
that the Respondent engaged in surface bargaining in vio-
lation of Section 8(a)(5) and (1) of the Act.11
2. Unilateral Changes on May 16 and July 7, 2016. In-
asmuch as we find that the Respondent engaged in
11 We emphasize that our finding is not based on the Respondent’s
adherence to the wage proposals in its 2015 final offer. It is well estab-
lished that “adamant” insistence on a negotiating position “is not of itself
a refusal to bargain in good faith.” Atlanta Hilton & Tower, 271 NLRB
1600, 1603 (1984). We also disavow any reliance on the judge’s
unlawful surface bargaining and that the parties were not
at good-faith impasse on the dates when the Respondent
implemented parts of its 2015 final offer, we affirm the
judge’s findings that those unilateral changes violated
Section 8(a)(5) and (1) of the Act. Further, even in the
absence of a separate surface bargaining violation, we
would find that the unilateral changes violated Section
8(a)(5) and (1) based on the Respondent’s prior unreme-
died unilateral changes in 2015 and its failure to prove that
the parties’ overall negotiations were at single-issue im-
passe.12
II. ALLEGED THREAT
A. Relevant Facts
During negotiations on June 7, the Respondent’s nego-
tiator, Bill Dwyer, told bargaining unit employees that he
could not believe that they had selected “these union ne-
gotiators,” noting that the negotiators “can’t get you any-
thing and you should just leave the room.” The judge rec-
ognized that Dwyer’s words “in a vacuum” did not rise to
the level of the alleged threat. However, based on the to-
tality of circumstances including past unremedied unfair
labor practices, he found the remarks to constitute a threat
that the Respondent would not fulfill its statutory duty to
bargain. In so finding, the judge considered that Dwyer
was a high-level manager designated to represent the Re-
spondent at the bargaining table and that no management
official disavowed his remarks. The judge further noted
that the Respondent’s past unfair labor practices had not
been remedied.
We disagree with the judge and find that Dwyer’s com-
ments were a lawful expression of personal opinion under
Section 8(c) of the Act, which provides that the “express-
ing of any views, argument, or opinion . . . shall not con-
stitute or be evidence of an unfair labor practice . . . , if
such expression contains no threat of reprisal or force or
promise of benefit.” It is well settled that “an employer
may criticize, disparage, or denigrate a union without run-
ning afoul of Section 8(a)(1), provided that its expression
of opinion does not threaten employees or otherwise inter-
fere with the Section 7 rights of employees.” Children’s
Center for Behavioral Development, 347 NLRB 35, 35
(2006); see also Trailmobile Trailer, LLC, 343 NLRB 95,
95 (2004) (finding that “flip and intemperate” remarks in-
tended to make fun of union representatives did not violate
the Act) (internal citation omitted).
extended remarks about “the modus operandi of the surface bargainer”
or his consideration of the negotiating expertise of the Respondent’s le-
gal representatives in this proceeding.
12 We also do not rely on the May 16 and July 7 unilateral changes as
indicia of the Respondent’s unlawful surface bargaining.
RICHFIELD HOSPITALITY, INC. 5
Here, we find that Dwyer’s remarks during a negotia-
tion session conveyed nothing more than his emotionally
charged expression of a negative opinion of the Union’s
actions. It is clear that his statements did not contain any
threat of reprisal or force or any promise of benefit; neither
did they otherwise interfere with employees’ Section 7
rights. As explained above, expressions of personal opin-
ion such as Dwyer’s are both constitutionally—and statu-
torily—protected speech. See Erickson Trucking Service,
Inc. d/b/a Erickson’s Inc., 366 NLRB No. 171, slip op. at
2 (2018) (employer did not violate Section 8(a)(1) by dis-
paraging the union when it referred to the union’s business
representative in pejorative terms). Further, we disagree
with the judge that the Respondent’s failure to remedy its
past unfair labor practices converted Dwyer’s remarks
into an unlawful threat. Even assuming that otherwise
lawful disparagement of a union may be rendered unlaw-
ful by contemporaneous coercive statements, see, e.g.,
Fred Meyer Stores, 362 NLRB 698, 700 (2015), no facts
of that nature are presented here. Therefore, Dwyer’s re-
marks were protected by Section 8(c) of the Act.
Accordingly, we reverse the judge and dismiss this al-
legation.
AMENDED CONCLUSIONS OF LAW
1. Delete the judge’s Conclusion of Law 5 and renum-
ber the remaining paragraphs accordingly.
2. Substitute the following for the judge’s Conclusion
of Law 6, renumbered as Conclusion of Law 5:
“Respondent violated Section 8(a)(5) and (1) of the Act
by the following conduct: (1) engaging in surface bargain-
ing by endeavoring to create the impression of bargaining
in good faith, while having a fixed intent not to reach
agreement and while taking various actions to avoid
reaching agreement; (2) unilaterally changing the terms
and conditions of employment of its unit employees by
implementing portions of its 2015 final offer on May 16
and July 7, 2016, without the parties having reached a
lawful impasse.”
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(5) and (1)
of the Act by refusing to bargain in good faith, we shall
order the Respondent to meet, on request, with the Union
and bargain in good faith concerning the terms and condi-
tions of employment of the bargaining unit employees
13 However, we do not adopt the judge’s order that the Respondent
permit the Union to bring a camcorder to the meeting and record the
reading of the notice.
and, if agreement is reached, embody such agreement in a
signed contract. In addition, having found that the Re-
spondent unlawfully implemented portions of its 2015 fi-
nal offer on May 16 and July 7, 2016, in the absence of a
valid single-issue impasse, we shall direct the Respondent
to reinstitute the terms and conditions of employment that
existed before its unlawful changes. We shall also order
the Respondent to make employees whole for any loss of
earnings and other benefits resulting from its unlawful
unilateral changes as prescribed in Ogle Protection Ser-
vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), plus 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).
In addition, in accordance with AdvoServ of New Jersey,
Inc., 363 NLRB No. 143 (2016), we shall order the Re-
spondent to compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and file with the Regional Director for
Region 18, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
years for each employee.
The judge ordered notice reading by one of the Re-
spondent’s managers or a Board agent in the presence of
one of the Respondent’s managers. The judge also
awarded reimbursement of negotiating expenses to the
Union from February 25, 2016, until such time as Re-
spondent begins bargaining in good faith, upon submis-
sion by the Union of a verified statement of costs and ex-
penses. We agree with the judge that these special reme-
dies are warranted in the circumstances here, which in-
clude consideration of the Respondent’s recidivist unlaw-
ful conduct in continuation of bargaining violations found
in Richfield I.13
Finally, for the reasons set forth in Caterair Interna-
tional, 322 NLRB 64 (1996), we find that an affirmative
bargaining order is warranted in this case as the “tradi-
tional, appropriate” remedy for the Respondent’s unlawful
failure and refusal to bargain in good faith. Id. at 68.
In several cases, however, the United States Court of
Appeals for the District of Columbia Circuit has required
that the Board justify, on the facts of each case, the impo-
sition of such an order. See, e.g., Vincent Industrial Plas-
tics 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 at 738, the
court summarized its requirement that an affirmative
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
bargaining 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.”
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 factors war-
rants 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 unlawful conduct. By engaging in surface bar-
gaining and thereby frustrating the very possibility of con-
cluding a successor collective-bargaining agreement, the
Respondent unlawfully deprived unit employees of the
opportunity to secure the stability and predictability such
an agreement would provide. In addition, the Respondent
unlawfully implemented new terms and conditions of em-
ployment without bargaining with the unit employees’
representative to a valid impasse, further demonstrating its
disregard of the employees’ Section 7 rights. At the same
time, an affirmative bargaining order, with its attendant
bar to raising a question concerning the Union’s continu-
ing majority status for a reasonable time, does not unduly
prejudice the Section 7 rights of employees who may op-
pose continued union representation because the duration
of the order is no longer than is reasonably necessary to
remedy the ill effects of the violation. To the extent such
opposition exists, moreover, it may be, at least in part, the
product of the Respondent’s unfair labor practices.
(2) An affirmative bargaining order also serves the pol-
icies of the Act by fostering meaningful collective bar-
gaining and industrial peace. That is, it removes the Re-
spondent’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 Respondent’s
failure to bargain in good faith to achieve immediate re-
sults at the bargaining table following the Board’s resolu-
tion 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 unlawful surface bar-
gaining with the Union in these circumstances because it
would permit a challenge to the Union’s majority status
before the taint of the Respondent’s unlawful conduct has
dissipated, and before the employees have had a reasona-
ble time to regroup and bargain through their representa-
tive in an effort to reach a successor collective-bargaining
agreement. Such a result would be particularly unjust in
circumstances such as those here, where the unlawful sur-
face bargaining caused undue and prolonged delay in the
parties’ progress toward achieving a successor agree-
ment—delay for which unit employees would probably
fault their bargaining representative, at least in part—and
where the Respondent’s unlawful unilateral changes ab-
sent a valid impasse would further tend to undermine the
unit employees’ support for the Union. Thus, the Re-
spondent’s unlawful conduct would likely have a contin-
uing effect, tainting any employee disaffection from the
Union for a period of time after the issuance of this deci-
sion and order. Moreover, the imposition of a bargaining
order would signal to employees that their rights guaran-
teed under the Act will be protected. We find that these
circumstances outweigh the temporary impact the affirm-
ative bargaining order will have on the rights of employ-
ees who oppose continued union representation.
For all the foregoing reasons, we find that an affirmative
bargaining order with its temporary decertification bar is
necessary to fully remedy the Respondent’s bad-faith sur-
face bargaining in this case.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Richfield Hospitality, Inc. as Managing Agent
for Kahler Hotels, LLC, Rochester, Minnesota, its offic-
ers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Engaging in surface bargaining by endeavoring to
create the appearance of bargaining in good faith while
taking actions to thwart the bargaining process and avoid
reaching agreement.
(b) Unilaterally changing the terms and conditions of
employment of its unit employees by implementing por-
tions of its 2015 final offer without the parties having
reached a lawful impasse.
(c) 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) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time employees employed
in the job classifications and at the hotels listed in Ap-
pendix A of the most recent collective-bargaining agree-
ment, which is effective by its terms from October 1,
2011 through August 31, 2014, between the Union and
RICHFIELD HOSPITALITY, INC. 7
Sunstone Hotel Properties, Inc., as agent for The Kahler
Grand Hotel, Rochester Marriott Mayo Clinic Area Ho-
tel, and Kahler Inn & Suites; and all full-time and regular
part-time employees employed in the job classifications
listed in the Memorandum of Agreement, which is ef-
fective beginning on May 4, 2012, between the Union
and Sunstone Hotel Properties, Inc., as agent for Resi-
dence Inn Rochester Mayo Clinic Hotel; excluding all
other employees, guards and supervisors as defined in
the Act.
(b) Rescind the changes in the terms and conditions of
employment for its unit employees that were unilaterally
implemented on May 16 and July 7, 2016.
(c) Make whole eligible employees in the above-de-
scribed unit for any loss of earnings resulting from the Re-
spondent’s implementing portions of its 2015 final offer
on May 16 and July 7, 2016, without the parties having
reached a lawful impasse, in the manner set forth in the
amended remedy section of this decision.
(d) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 18,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years for each
employee.
(e) Compensate the Union for all bargaining expenses
it has incurred or will incur during a period beginning Feb-
ruary 25, 2016, and continuing until the Respondent be-
gins bargaining in good faith. Upon receipt of a verified
statement of costs and expenses from the Union, the Re-
spondent promptly shall submit a reimbursement pay-
ment, in the amount of those costs and expenses, to the
compliance officer for Region 18 of the National Labor
Relations Board, who will document receipt and forward
the payment to the Union.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form,
14 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 National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
15 If the facilities involved in these proceedings are open and staffed
by a substantial complement of employees, the notices must be posted
and read within 14 days after service by the Region. If the facilities in-
volved in these proceedings are closed due to the Coronavirus Disease
necessary to analyze the amount of backpay due under the
terms of this Order.
(g) Post at its facilities in Rochester, Minnesota, copies
of the attached notice marked “Appendix.”14 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 18, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of business
or closed any of the facilities involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since February 25, 2016.
(h) Hold a meeting or meetings during working hours,
which shall be scheduled to ensure the widest possible at-
tendance, at which the attached notice marked “Appen-
dix” is to be read by one of the Respondent’s management
officials holding the rank of area managing director or
higher in the presence of a Board agent and an agent of the
Union if the Region or the Union so desires, or, at the Re-
spondent’s option, by a Board agent in the presence of one
of the Respondent’s management officials holding the
rank of area managing director or higher and, if the Union
so desires, an agent of the Union.15
(i) Within 21 days after service by the Region, file with
the Regional Director for Region 18 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. June 26, 2020
______________________________________
John F. Ring, Chairman
2019 (COVID-19) pandemic, the notices must be posted and read within
14 days after the facilities reopen and a substantial complement of em-
ployees have returned to work, and the notices may not be posted and
read until a substantial complement of employees have returned to
work. Any delay in the physical posting of paper notices also applies to
the electronic distribution of the notice if the Respondent customarily
communicates with its employees by electronic means.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated 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 ac-
tivities.
WE WILL NOT engage in surface bargaining by endeav-
oring to create the appearance of bargaining in good faith
while taking actions to thwart the bargaining process and
avoid reaching agreement.
WE WILL NOT unilaterally change terms and conditions
of employment of our unit employees by implementing
portions of our 2015 final offer without the parties having
reached a lawful impasse.
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 on request, bargain with the Union as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement:
All full-time and regular part-time employees employed
in the job classifications and at the hotels listed in Ap-
pendix A of the most recent collective-bargaining agree-
ment, which is effective by its terms from October 1,
2011 through August 31, 2014, between the Union and
Sunstone Hotel Properties, Inc., as agent for The Kahler
Grand Hotel, Rochester Marriott Mayo Clinic Area
Hotel, and Kahler Inn & Suites; and all full-time and reg-
ular part-time employees employed in the job classifica-
tions listed in the Memorandum of Agreement, which is
effective beginning on May 4, 2012, between the Union
and Sunstone Hotel Properties, Inc., as agent for Resi-
dence Inn Rochester Mayo Clinic Hotel; excluding all
other employees, guards and supervisors as defined in
the Act.
WE WILL rescind the changes in the terms and condi-
tions of employment for our unit employees that were uni-
laterally implemented on May 16 and July 7, 2016.
WE WILL make whole, with interest, eligible employees
in the above-described unit for any loss of earnings result-
ing from our implementing portions of our 2015 final offer
on May 16 and July 7, 2016, without the parties having
reached a lawful impasse.
WE WILL compensate our unit 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 18, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate cal-
endar years for each employee.
RICHFIELD HOSPITALITY, INC. AS
MANAGING AGENT FOR KAHLER
HOTELS, LLC
The Board’s decision can be found at
www.nlrb.gov/case/18-CA-176369 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.
Tyler J. Wiese, Esq., for the General Counsel.
Karl Terrell, Esq., for the Respondent.
Martin Goff, Sr., for the Charging Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. The law re-
quires an employer to bargain in good faith with a union which
is the exclusive representative of employees in an appropriate
RICHFIELD HOSPITALITY, INC. 9
bargaining unit. Pretending to negotiate while resolved not to
reach agreement breaches that duty. Discerning such an intent
here, I conclude that the Respondent engaged in unlawful “sur-
face bargaining” rather than lawful “hard bargaining.”
Procedural History
This case began on May17, 2016, when UNITE HERE Inter-
national Union, Local 21 (referred to below as the Union or the
Charging Party) filed a charge against the Respondent, Richfield
Hospitality, Inc., as Managing Agent for Kahler Hotels, LLC.
The Board’s Regional Office in Minneapolis docketed the
charge as Case 18–CA–176369. The Union amended the charge
on July 18, 2016.
On July 28, 2016, the Regional Director for Region 18, acting
with authority delegated by the Board’s General Counsel, issued
a complaint and notice of hearing. On September 12, 2016, the
Regional Director issued an amendment to the complaint. The
Respondent filed timely answers to the complaint and the
amendment.
On October 4, 2016, a hearing opened before me in Rochester,
Minnesota. The parties presented evidence on that day and the
next. I then adjourned the hearing until November 18, 2016,
when it resumed by telephone conference call for oral argument.
The General Counsel and the Respondent also filed briefs.
Admitted Allegations
In its answer to the complaint, the Respondent admitted the
allegations in paragraphs 1(a), 1(b), 2(a), 2(b), 2(c), 2(d), 3, 4, 7,
8, and 9. Based on these admissions, I find that the General
Counsel has proven the allegations in these complaint para-
graphs.
More specifically, I find that the charge and amended charge
were filed and served as alleged.
The Respondent has admitted some, but not all, of the allega-
tions raised in certain other paragraphs of the complaint. These
admissions will be discussed below in connection with the indi-
vidual unfair labor practice allegations.
Further, I find that the Respondent is a Colorado corporation
and a Minnesota limited liability company and is engaged in the
business of providing hospitality services at four hotels in the
Rochester, Minnesota area. Based on the Respondent’s admis-
sions, I find that it is an employer within the meaning of Section
2(2), (6), and (7) of the Act and that it satisfies the Board’s stand-
ards for the exercise of its jurisdiction.
Additionally, I find that the following individuals are the Re-
spondent’s supervisors within the meaning of Section 2(11) of
the Act and its agents within the meaning of Section 2(13) of the
Act: Area Managing Director Bill Dwyer and Human Resources
Representative Mary Kay Costello. Also, I find that until about
May 10, 2016, Michael Henry held the position of human re-
sources representative and in that capacity was the Respondent’s
supervisor and agent within the meaning of Section 2(11) and
1(13) of the Act.
Based on the Respondent’s admissions, I find that at all mate-
rial times, the Union, UNITE HERE International Union Local
21, has been a labor organization within the meaning of Section
2(5) of the Act. Further, I find that at all material times, the Un-
ion has been the exclusive bargaining representative, within the
meaning of Section 9(a) of the Act, of the following unit, which
is an appropriate unit within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time employees employed in the
job classifications and at the hotels listed in Appendix A of the
most recent collective-bargaining agreement, which is effec-
tive by its terms from October 1, 2011 through August 31,
2014, between the Union and Sunstone Hotel Properties, Inc.,
as agent for The Kahler Grand Hotel, Rochester Marriott Mayo
Clinic Area Hotel, and Kahler Inn & Suites; and all full-time
and regular part-time employees employed in the job classifi-
cations listed in the Memorandum of Agreement, which is ef-
fective beginning on May 4, 2012, between the Union and Sun-
stone Hotel Properties, Inc., as agent for Residence Inn Roch-
ester Mayo Clinic Hotel; excluding all other employees, guards
and supervisors as defined in the Act.
In about October 2013, the Respondent became the employer
of the employees in this unit, recognized the Union as the exclu-
sive bargaining representative of employees in the unit, and as-
sumed the collective-bargaining agreement which the Union had
entered into with the predecessor employer. This agreement was
effective by its terms from October 1, 2011, through August 31,
2014, and embodied the Respondent’s recognition of the Union
as the exclusive bargaining representative.
The Respondent also has admitted, and I find, that at all ma-
terial times, the Union has requested that the Respondent recog-
nize and bargain with it as the exclusive representative of em-
ployees in the unit.
The Respondent has made certain further admissions which
will be discussed below in connection with specific unfair labor
practice allegations.
Contested Allegations
The 8(a)(1) Allegations
Complaint Paragraphs 5(a), 5(b), and 5(c)
Complaint paragraph 5 pertains to a previous unfair labor
practice case involving the same Respondent. Paragraph 5(a) al-
leges that another administrative law judge, the Hon. Sharon
Steckler, conducted a hearing in this prior matter, Case 18–CA–
151245, on December 15, 16, and 17, 2015. Paragraph 5(b), con-
cerning Judge Steckler’s decision, states as follows:
On May 27, 2016, Administrative Law Judge Sharon Steckler
issued a decision and recommended order in Case 18–CA–
151245 finding that Respondent violated Section 8(a)(1), (3),
and (5) of the Act in various respects, including that Respond-
ent engaged in unfair labor practices within the meaning of
Section 8(a)(5) by, inter alia:
“On and after February 28, 2015 discontinuing longevity pay
increases without notifying the Union or negotiating to im-
passe;
“Proposing confusing terms and conditions of employment
with the intent to stall negotiations, particularly with regard to
proposed wages for unit employees;
Refusing to collectively bargain with the Union unless it made
new proposals;
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
“Failing and refusing to provide the Union with information
about the cost of health insurance.
Complaint paragraph 5(c) alleges that the Respondent has
filed exceptions to Judge Steckler’s decision, that the General
Counsel has filed limited cross-exceptions, and that these matters
are pending before the Board.
The Respondent admits that Judge Steckler conducted the
hearing and issued the decision. The Respondent’s answer fur-
ther stated:
That recommended decision was filled with errors, reflecting a
fundamental and egregious misunderstanding of the evidence
presented to her. Respondent has filed Exceptions to that rec-
ommended decision.
Based on the Respondent’s answer, and taking administrative
notice of the Board’s own records, I find that the General Coun-
sel has proven that on December 15, 16, and 17, 2015, Judge
Steckler conducted a hearing in Case 18–CA–151245, in which
the present Respondent was the respondent. Further, I find that
Judge Steckler issued a decision in that case on May 27, 2016.
Particular findings in Judge Steckler’s decision will be discussed
below as they relate to the present unfair labor practice allega-
tions.
Complaint Paragraph 6(a)
Complaint paragraph 6(a) alleges that in about February 2016,
the exact date being unknown, Respondent, by its Area Manag-
ing Director Bill Dwyer, at The Kahler Grand Hotel, “threatened
an employee b questioning the effectiveness of the Union and
claiming that the Union was not a real union.” The Respondent
denies this allegation.
To prove this allegation, the Government relies exclusively on
the testimony of Roberta Heyer, an employee working as a wait-
ress in the coffee shop of The Kahler Grand Hotel. According to
Heyer, in February and March 2016, the Respondent’s manager,
Bill Dwyer, often ate at the coffee shop. Heyer testified that on
one occasion, Dwyer brought up the subject of the Union:
Q. To the best of your recollection, when did this conversation
occur?
A. It happened some time last winter, I thought maybe Febru-
ary or March.
Q. And when you say —February or March of what year?
A. Of this year, 2016.
Q. And was anyone present for your conversation with Mr.
Dwyer?
A. No.
Q. And where did the conversation take place?
A. In the very back table in the Kahler Grand coffee shop.
Q. And, as best you can recall, what happened during this con-
versation?
A. He just, you know, he asked me, he said, “What does the
Union do for you?” And so I told him the things that I felt that
they did for us. And, you know, as far as benefits and seniority
and things like that. We just talked about that in general, and
then, you know, h\e was sort of —I don’t know. I mean, Bill
and I were always on friendly terms. But then he said that he
wasn’t afraid of our little old Union, and that we weren’t really
even a real union like they were in New Jersey, because you
can’t work even in New Jersey, because of the unions. And I
remember it specifically because I was so angry that I could
barely talk to him.
Q. And was that the end of the conversation after he said that.
A. That was the end.
Dwyer did not testify and I credit Heyer’s uncontradicted tes-
timony. Based on that testimony, I find that Dwyer did ask Heyer
“What does the Union do for you?”
Those words were a direct quote. However, the rest of Heyer’s
testimony does not seem to quote Dwyer verbatim, but instead
appears to summarize or paraphrase his words. However, I do
believe that Heyer reliably describes the gist of Dwyer’s re-
marks. She credibly testified that she specifically remembered
what he said because she was angry.
Essentially, Dwyer expressed the opinion that the Union was
not as strong as unions in New Jersey and that it was not strong
enough to make him afraid. From the context, I conclude that
when he said that the Union was not a “real union,” he was not
using the word “real to mean “in existence and not imaginary”
but rather intended it the same way “real” was used in old body-
building advertisements: A “real man” did not let a bully kick
sand in his face. Dwyer was expressing the opinion that the Un-
ion, like the advertisement’s “90 pound weakling,” was not mus-
cular enough, compared to unions in New Jersey.
This complaint allegation deeply implicates the First Amend-
ment to the United States Constitution because the Government
is attempting to hold the Respondent liable for an opinion ex-
pressed by one of its managers. More than that, the Government
is seeking an order to prohibit the Respondent from engaging in
similar conduct in the future.
Almost 5 decades ago, the Supreme Court stated that “an em-
ployer’s free speech right to communicate his views to his em-
ployees is firmly established and cannot be infringed by a union
or the Board.” NLRB v. Gissel Packing Co., 395 U.S. 575, 617
(1969).
The Supreme Court recognizes only a few quite narrow ex-
ceptions to First Amendment protection. For example, the Court
has held that the First Amendment does not protect obscenity.
Roth v. United States, 354 U.S, 476 (1957); Miller v. California,
413 U.S. 15 (1973). The First Amendment also does not protect
statements which are true threats. Watts v. United States, 394
U.S. 705 (1969); Virginia v. Black, 538 U.S. 243 (2003).
In Gissel, above, the Supreme Court stated that the First
Amendment protects “an employer’s free speech right to
communicate his views to his employees.” Therefore, the
Government must show that the expression of opinion
falls within one of the narrow exceptions to First Amend-
ment protection. Clearly, the obscenity exception would
not apply to Dwyer’s words. Instead, the government re-
lies on the threat exception.
Thus, the complaint alleges that Dwyer “threatened an em-
ployee by questioning the effectiveness of the Union and claim-
ing that the Union was not a real union.” (Emphasis added.)
RICHFIELD HOSPITALITY, INC. 11
However, calling a statement a “threat” doesn’t necessarily make
it one.
Indeed, the word “threaten” seems not a little inappropriate
when applied to “questioning the effectiveness of the Union and
claiming that the Union was not a real union.” What part of this
expression of opinion portends harm?
A “threat” communicates an intention to cause harm. The in-
tention may be conditional—for example, “if you do (or do not
do) X then I will do Y”—and the exact harm need not be speci-
fied, but there must be some prospect of harm somewhere in the
statement or else it is not a threat.
In addition to raising the possibility of harm, a threat also
states or implies that the speaker, or the speaker’s principal, if
the speaker is acting as an agent, will cause or bring about the
harm. Thus, to say, “if you stand outside in a storm you may be
struck by lightning” is a prediction, not a threat.
Nothing about “questioning the effectiveness of the Union” or
saying that it was not a “real union” raises a possibility of harm.
Likewise, nothing about these opinions suggests that the Re-
spondent would cause harm.
On its face, Dwyer’s opinion does not convey a threat. How-
ever, there is a possibility that words innocuous on their face may
actually convey a threat under particular circumstances.
For example, suppose someone said to a building owner,
“that’s a nice building you have there; it would be a shame if it
burned down.” Those words would communicate one message if
the speaker were a well-known arsonist and extortionist, and a
wholly different message if the speaker were the building
owner’s silver-haired grandmother (unless, of course, the grand-
mother also happened to be a well-known arsonist and extortion-
ist).
Another circumstance, the speaker’s apparent ability to take
some action to effectuate a threat, also can affect the message
communicated. The words in the hypothetical example above—
”nice building . . . be a shame if it burned down”—will cause
alarm even when spoken by the gentlest grandmother if she is
holding a gasoline can and matches.
For that reason, what a supervisor says to a worker about the
worker’s continued employment takes on special significance
because the boss has the power to terminate that employment. If
an employer already has discharged employees for their pro-
tected activities, that unfair labor practice also affects how an
employee reasonably would understand an ambiguous state-
ment.
Because circumstances can profoundly affect a listener’s un-
derstanding of the words spoken, the Board considers the totality
of circumstances when it determines whether a particular state-
ment conveys a threat. Additionally, the Board considers how an
employee, under those circumstances, reasonably would under-
stand the statement. Thus, the Board may find a statement to be
a threat even if the actual listener did not feel threatened, if the
words reasonably would have communicated a threatening mes-
sage.
The complaint alleges that Respondent, by Dwyer, “threat-
ened” employees. As discussed above, the Supreme Court has
held that a statement which is a true threat falls outside the First
Amendment’s protection.
Considering the totality of circumstances, I do not find that
Dwyer’s expression of opinion would reasonably have been un-
derstood to be a threat. No reasonable listener would have un-
derstood the statement to raise the prospect of impending harm
or to suggest that the Respondent would cause such harm.
However, the Government, in arguing that Dwyer’s remarks
violated the Act, departs from the theory raised in the complaint.
As noted, the complaint alleges a threat, but the General Coun-
sel’s brief states that Dwyer’s words “denigrated” the Union.
An employer violates Section 8(a)(1) of the Act when it deni-
grates the Union in the eyes of employees. Regency House of
Wallingford, Inc. 356 NLRB 563, 567 (2011). For example, the
Board has previously found that a supervisor’s statement to
employees that a union was too weak to benefit employees vi-
olates the Act. Albert Einstein Medical Center, 316 NLRB
1040, 1040 (1995) (statement that union was weak and could
not get employee anything violated the Act); Lehigh Lumber
Co., 230 NLRB 1122, 1125 (1977) (statement that union was
no good and the employees ought to look for another union vi-
olated the Act). This is particularly the case when these state-
ments take place in the context of other unfair labor practices
that undermine employee support for the existing union. Re-
gency House of Wallingford, Inc., 356 NLRB at 567.
Server Roberta Heyer credibly testified that Respondent’s
Area Managing Director Bill Dwyer initiated a conversation
with her about the Union, proceeded to question what the Union
did for her, and then told her that the Union “wasn’t even a real
union.” (Tr. 179.) Respondent did not rebut these statements by
calling Dwyer or even questioning Heyer on cross-examination.
In line with the precedent discussed above, Dwyer’s statements
to Heyer amounted to unlawful denigration of the Union.
Thus, the complaint in this case alleged one thing, that the Re-
spondent, by Dwyer “threatened an employee” but the govern-
ment then argued something else, “unlawful denigration of the
Union.” Clearly, “threat” and “denigration” mean two different
things.
To “threaten” means “to utter threats against, to menace, to
inspire apprehension, to alarm or attempt to alarm.” To “deni-
grate” means to “blacken, sully or defame.” The words “ “threat”
and “denigration” are not synonyms and their meanings are not
even close.
Ordinarily, one makes a threat directly to the person he intends
to intimidate. Sometimes a crafty bully will make a statement to
a third person, knowing that the true target of the threat either
will overhear or else will receive a report, but notwithstanding
this stratagem, the threatener’s intent remains the same, to induce
fear in the target so that the target will behave the way the threat-
ener desires.
However, denigration has none of this assaultive flavor.
Someone making a denigrating statement typically addresses it
to a third person, not to the one being criticized. Often, the person
who denigrates another will not even want the subject of his
statement to find out about it.
Another difference between the two concepts concerns what
response the listener can make. A threat expresses a speaker’s
intention to do harm and thus affords little if any opportunity for
reasoned discussion. The law has an interest in prohibiting true
threats because they do not lead to talk but rather to intimidation
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
or violence.
By comparison, discussion provides an effective means of
countering a denigrating statement because such criticism fo-
cuses on particular characteristics or actions. Both the facts and
assumptions of a denigrating statement can be disputed in a
peaceful discussion.
For present purposes, the most important difference between
a threat and a denigration concerns legal consequences. True
threats do not enjoy the protection of the First Amendment and
therefore can be prohibited by the Government. The Supreme
Court has never made a similar exception for mere criticism,
whether justified or not.
The words “threat” and “denigration” differ so substantially
in definition and consequence that substituting one for the other
gives the appearance of what colloquially has been called a
“switcheroo.” Most emphatically, I do not suggest that the Gen-
eral Counsel intended to plead one thing and prove another. Ra-
ther, the concepts of “threat” and “denigration” appear to have
become entangled in the precedents.
However, the Supreme Court’s decisions interpreting the First
Amendment place true threats in a special category. Fidelity to
these rulings requires careful attention to the distinctions which
the Court itself has drawn. Otherwise, government agencies
might create an alternate universe of First Amendment caselaw
at odds with the Court’s.
Fairness to the Respondent also requires that the General
Counsel prove the theory of violation raised by the complaint,
rather than a different theory. Neither the complaint nor the
amendment to complaint raised a denigration theory.
Accordingly, I will decide the allegations related to complaint
paragraph 6(a) by considering whether Manager Dwyer’s ex-
pression of opinion constituted a threat.1 I find that it does not.
A threat communicates an intention to harm. However,
whether Dwyer’s words are examined by themselves or along
with the totality of circumstances, they do not convey that any
harm will happen to the listener or to any other employee. Like-
wise, his words do not suggest that the Respondent would cause
harm by taking any action or by refraining from performing any
duty. Therefore, I conclude that the General Counsel has not
proven the allegations raised by complaint paragraph 6(a) and
recommend that the Board dismiss these allegations.
Complaint Paragraph 6(b)
Complaint paragraph 6(b) alleges that about June 7, 2016, Re-
spondent, by its designated agent, at The Kahler Grand Hotel and
1 Applying solely a “threat” standard, I need not consider if or when
the First Amendment would allow a government agency to forbid one
person from “denigrating” another. Similarly, I neither consider nor de-
cide whether a prohibition of “denigration” would be unconstitutionally
vague. See, e.g., Reno v. American Civil Liberties Union, 531 U.S. 844
(1997).
In Keyishian v. Board of Regents, 385 U.S. 589 (1967), the Supreme
Court struck down a state prohibition on “seditious” teachings. “The
crucial consideration,” the Court held, “is that no teacher can know just
where the line is drawn between “seditious and non-seditious utterances
and acts.” Keyishian v. Board of Regents, 385 U.S. at 599. See also
Coates v. City of Cincinnati, 402 U.S. 611 (1971) (an ordinance prohib-
iting groups from engaging in “annoying” conduct was unconstitution-
ally vague).
during collective-bargaining negotiations, threatened employees
that they could face layoffs if they spoke about Judge Steckler’s
decision. The Respondent denies this allegation.
The General Counsel’s brief argues that the Board’s recent de-
cision in Greenbrier Rail Services, 364 NLRB No. 30 (2016),
supports finding a violation. The brief describes the facts as fol-
lows:
Respondent’s attorney Terrell made statements that were even
more egregious than those statements found unlawful by the
Board in Greenbrier Rail Services. In this regard, multiple em-
ployees and Union representative Martin Goff testified that
Terrell told employees that the bad press that they had been
seeking against Respondent was hurting the business and that
this could cause layoffs. Respondent did not rebut this evi-
dence, despite Attorney Terrell being available to testify at the
hearing. As testified to by these witnesses, Terrell’s statements
amounted to a thinly veiled threat that if employees continued
to engage in these protected activities, they could face layoffs.
Unlike in Greenbrier, however, Terrell provided no contrary
assurances to suggest that employees would not face layoffs for
engaging in Section 7 activities. Accordingly, Terrell’s state-
ments at the bargaining table were clearly unlawful.2
However, contrary to the General Counsel’s argument, Goff’s
testimony does not indicate that Terrell said that the Union’s
contacting the press “was hurting the business.” Rather, accord-
ing to Goff, Terrell merely raised the possibility that unfavorable
news coverage could result in financial harm to the Respondent.
Goff testified, in relevant part, as follows:
Q. How do you recall negotiations beginning that day?
A. They started out with Karl giving a very brief synopsis of
his understanding of negotiations. It was his first time at the
table for the Employer. He expressed concern that employees
had gone to —and talked to the press, the Post Bulletin News-
paper, and said that should business be hurt, that would cause
layoffs with workers. He went on to say that the Company dis-
agreed with the ALJ’s decision, that she was a Government
employee and that her decision were recommendations and
they were going to appeal to the full Board. [Italics added.]
Terrell did not testify. Crediting Goff’s testimony, I find that
Terrell made the statement Goff attributed to him. Goff did not
testify that Terrell said the Union was hurting the Respondent’s
business by going to the press, and I find that Terrell did not
make such a statement.
Would a speaker wishing to express a negative opinion about a union
know where to draw the line separating criticism which the Board would
allow from “denigration” the Board would prohibit? Likewise, is the
standard sufficiently specific to prevent subjectivity and arbitrariness in
enforcement?
2 In a footnote, omitted from this excerpt, the General Counsel re-
quested that I reconsider my ruling rejecting GC Exh. 25, a newspaper
article quoting various employees critical of the Respondent. The Gen-
eral Counsel offered this exhibit to show that the employees were en-
gaged in protected activity when they spoke with the newspaper. That
clearly is true, and I so conclude. Therefore, I do not believe it necessary
to reconsider my rejection of this exhibit.
RICHFIELD HOSPITALITY, INC. 13
Accordingly, I find that Greenbrier Rail Services, cited by the
General Counsel, is inapposite. In that case, the Board consid-
ered a manager’s statement that employees’ union organizing ac-
tivities “made things worse.” The Board concluded that this re-
mark “would send a clear message . . . that employees’ organiz-
ing activity could lead to an adverse employment action. . .”
By comparison, Terrell did not assert that the Union’s contacts
with the newspaper had, in fact, harmed the Respondent’s busi-
ness but only spoke of that possibility. Indeed, his use of the
word “should” indicated that he did not know if harm would re-
sult and did not claim to know.
Goff’s use of the word “should” does not appear to have been
accidental. A bit later in his testimony, Goff referred to Terrell
“making a threat to lay off, in case there was a loss of business
due to newspaper articles . . .” (Emphasis added.) The phrase “in
case,” like the word “should,” signifies a possibility that hasn’t
yet happened or, at least, was not then known to have happened.
Unlike the manager in Greenbrier Rail Services, who said that
the employees’ organizing activities had “made things worse,”
Terrell only spoke of the possibility that the employees’ pro-
tected activity might result in a loss of business.
Therefore, I find that the Government has failed to prove the
threat alleged in complaint paragraph 6(b). Accordingly, I rec-
ommend that the Board dismiss the allegations related to com-
plaint paragraph 6(b).
Complaint Paragraph 6(c)
Complaint paragraph 6(c) alleges that about June 7, 2016, Re-
spondent, by its Area Managing Director Bill Dwyer, at The
Kahler Grand Hotel during collective bargaining, threatened em-
ployees that union representation was futile by telling employees
that the Union could not get them anything. The Respondent de-
nies this allegation. The General Counsel’s brief describes the
allegation as follows:
Respondent further violated the Act at the June 7 bargaining
session when its representative Bill Dwyer told employee
members of the negotiating committee that the Union couldn’t
get them anything and that employees would be better off with-
out the Union. The Board has held that statements of this nature
violate Section 8(a)(1) of the Act, as they amount to an unlaw-
ful denigration of the Union. See, e.g., Regency House of Wall-
ingford, Inc., 356 NLRB at 567 (statements that union was
harming employees and that the employees would be better off
without the union); Cherry Hill Convalescent Center, 309
NLRB 518, 521 (1992) (supervisor’s statement that union was
attempting to cut benefits, that facility was better off before un-
ion came in, and that employees would be better off without a
union violated the Act). Particularly in the context of these pro-
longed negotiations and Respondent’s numerous and severe
unfair labor practices, Dwyer’s claim that the Union could not
get employees anything was highly coercive, and thus unlaw-
ful.
3 Also based on Goff’s credited testimony, I find that some name
calling ensued, after which Dwyer looked at Goff and asked “And who
are you? You look like Colonel Sanders.” Then, Dwyer pointed at Gold-
man and said, “And I don’t know what you look like at all.” The
As noted above, Dwyer didn’t testify. In determining what
was said at the June 7, 2016 bargaining session, I rely on the
credited testimony of Union official Martin Goff.
Complaint paragraph 6(c) pertains to events which took place
immediately after Respondent’s Attorney Terrell made the re-
mark concerning the Union communicating with a local newspa-
per. As discussed above, Terrell raised the possibility that layoffs
could result if unfavorable news stories harmed the Respondent.
Goff described how he replied to Terrell’s remark:
Q. What response, if any, did the Union have to Mr. Terrell’s
opening remarks?
A. Well, I remember that on the statement that he made con-
cerning workers talking to the Post Bulletin Newspaper, I felt
that that was trying to interfere with their Section 7 rights, and
that making a threat to lay off, in case there was a loss of busi-
ness due to newspaper articles, that that was possibly a viola-
tion of law.
Q. And after you said this, what do you recall happening next?
A. Bill Dwyer, who is the General Manager -- I believe that
was his title -- got really upset and started to -- he started to
point at all the workers who were sitting there on our side of
the table, and he said, “I can’t believe that you people,” mean-
ing the workers, “want these people,” pointing at Nancy Gold-
man and myself, Brian and Linda, “to represent you.” So he
said, “I can’t believe you people want these people to represent
you, they can’t get you anything and you should just leave the
room.”
Crediting Goff’s uncontradicted testimony, I find some of the
Respondent’s bargaining unit employees attended this negotiat-
ing session along with the union officials, and that these employ-
ees heard the statements made by Manager Dwyer. Also based
on Goff’s testimony, I find that Manager Dwyer did tell employ-
ees attending this meeting “I can’t believe that you people,”
wanted the Union’s negotiators—Goldman, Brandt and Goff—
to represent them. Further, based on Goff’s testimony, I find that
Dwyer then told the employees that these union negotiators
“can’t get you anything and you should just leave the room.”3
In considering whether Dwyer’s statements violated the Act
in the manner alleged in complaint paragraph 6(c), I note that
there is a problem similar to that encountered in connection with
complaint paragraph 6(a). The complaint itself alleges a “threat”
but the General Counsel’s brief raises a denigration theory. First,
I will consider whether the words amount to “denigration” and
then will assess whether they constitute a threat.
Dwyer’s words do not denigrate the Union, as such, but rather
disparage the abilities of the particular Union negotiators. How-
ever, considering that Dwyer made his comment about “these
people” during the course of negotiations, I believe that his
words reasonably would be understood to refer to the Union as
well as to the individual negotiators. Clearly, Dwyer’s statement
that “these people are so ineffective they cannot get you
complaint does not allege either the name calling or these bizarre state-
ments to be threats or otherwise violative.
It may also be noted that, observing Goff as he testified, I did not no-
tice any particular resemblance, in either features or attire, to the iconic
chicken restaurateur.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
anything” does qualify as a denigration.
Do the words also constitute a threat? Simply considering
Dwyer’s words “in a vacuum” would lead to the conclusion that
this criticism did not rise to that level. A “threat” conveys the
message, either explicitly or implicitly, that the speaker intends
to take some action (or refrain from taking some required action)
which will result in harm to the listener or someone else. On its
face, the statement “these people can’t get you anything” does
not imply that the Respondent will take any action or refrain
from any required action.
However, the Board considers the totality of the circum-
stances because circumstances indeed affect the message which
words reasonably would convey to a listener. Thus, as noted in
our earlier hypothetical, the silver-haired grandmother’s re-
mark—”be a shame if it burned down”—communicates a differ-
ent message if she says it while holding matches and a can of
gasoline.
Circumstances which demonstrate a speaker’s ability, procliv-
ity, or willingness to take a given action certainly affect how a
listener aware of those circumstances will understand the mes-
sage. One such circumstance concerns the authority with which
Dwyer spoke.
This authority extended beyond Dwyer’s admitted status as
Respondent’s supervisor and agent. He was, in fact, a high-rank-
ing manager. His presence as one of the management negotiators
signified that the Respondent had authorized him to express the
Respondent’s position on labor relations matters. Moreover, af-
ter Dwyer said that the union negotiators could not get the em-
ployees anything, no other person on the management team dis-
avowed Dwyer’s words. A listener reasonably would believe that
Dwyer had expressed the Respondent’s position. Additionally,
considering that no other management representative contra-
dicted Dwyer, a listener reasonably would impute to the Re-
spondent his vehement, almost rabid tone.
The Respondent’s past unfair labor practices, found by Judge
Steckler and described in her decision, also would affect how a
listener reasonably would understand Dwyer’s words. In the pre-
vious case, Judge Steckler found that the Respondent had en-
gaged in conduct which constituted a failure to bargain in good
faith and a violation of Section 8(a)(5) of the Act.
Significantly, the Respondent has not remedied those unfair
labor practices or promised not to repeat them. Therefore, em-
ployees reasonably would assume that the Respondent’s future
conduct would resemble its past. Indeed, Dwyer’s strident tone
communicated a hostility beyond the words themselves. Because
of this hostility, listeners reasonably would believe that the Re-
spondent would persist in violating the Act.
4 The Board has developed an analytical framework for determining
whether another type of speech to employees, a supervisor’s question
about union activity, is lawful. This test, named after Rossmore House,
269 NLRB 1176 (1984) examines a number of factors, including where
the supervisor asked the question. Likewise, the location of the speech
at issue here reflects on its import. Although this factor is not dispositive,
the physical circumstances certainly affect how listeners would interpret
the words spoken. Dwyer’s opinion, expressed casually to an employee
in a coffee shop, conveys a different message from taunting words spo-
ken emphatically by a management representative at the bargaining ta-
ble.
In these circumstances, listeners reasonably would understand
Dwyer’s words to mean that the Union could not get employees
anything because the Union was not strong enough to overcome
the effects of the Respondent’s unfair labor practices, which
likely would continue.
Another circumstance, and one particularly relevant to
whether Dwyer’s words constituted a threat outside the protec-
tion of the First Amendment, is the Respondent’s legal duty to
bargain with the Union in good faith. As noted above, communi-
cating an intention to refrain from doing something the law re-
quires is just as much a threat as expressing an intention to do
something the law prohibits. Because of the unremedied past un-
fair labor practices and Dwyer’s hostility as he spoke, his words
reasonably would be understood to signify an intention to engage
in unlawful conduct which would make them powerless.
For purposes of First Amendment analysis, it is important to
distinguish the circumstances present here from those discussed
above in connection with complaint paragraph 6(a). That allega-
tion concerned Dwyer’s voicing a negative opinion about the
Union to a waitress in a coffee shop. Although some of the cir-
cumstances (such as the Respondent’s unremedied unfair labor
practices) were the same, others were quite different.
Dwyer’s words in the coffee shop expressed his opinion about
the strength of the Union as compared to unions in New Jersey.
Dwyer’s words at the bargaining table went beyond such an ex-
pression of opinion. They confronted the union negotiators with
a literally in-your-face taunt which disrupted negotiations. The
parties then had to take a break while tempers cooled down.
Dwyer’s words on June 7, 2016, communicated contempt for
the union negotiators and, by extension, contempt for the bar-
gaining process itself. A listener aware of the Respondent’s past
violative conduct reasonably would understand the words to sig-
nify a present and continuing intention to disregard its duty to
bargain in good faith. Dwyer’s earlier words in the coffee shop
did not, under the circumstances then present, convey such an
intention.
In sum, for the reasons stated above in connection with com-
plaint paragraph 6(a), I have concluded that Dwyer’s expression
of opinion in the coffee shop did not truly communicate a threat.
For the reasons stated immediately above in connection with
Complaint paragraph 6(c), I conclude that Dwyer’s remarks at
the June 7, 2016 bargaining session truly do communicate a
threat.4
The First Amendment does not protect a true threat. Accord-
ingly, I recommend that the Board find that the Respondent vio-
lated Section 8(a)(1) of the Act by the conduct alleged in com-
plaint paragraph 6(c).5
5 As discussed above, the First Amendment does not protect speech
which is a “true threat,” so the Board may order the Respondent not to
threaten employees in the future. However, unless the Supreme Court
should decide to create a similar exception to the First Amendment for
“denigration,” any order prohibiting an employer from “denigrating” a
union would be subject to the strict scrutiny accorded to any prior re-
straint on speech.
Supreme Court precedents long have condemned prior restraints on
expression. See Near v. ex rel. Olson, 283 U.S. 697 (1931); Nebraska
Press Assn. v. Stuart, 427 U.S. 539 (1976); Organization for a Better
Austin v. Keefe, 402 U.S. 415, 419 (1971).
RICHFIELD HOSPITALITY, INC. 15
The 8(a)(5) Allegations
The complaint includes a number of allegations that the Re-
spondent has failed and refused to bargain with the Union in
good faith, in violation of Section 8(a)(5) of the Act.
To establish a violation of Section 8(a)(5), the Government
first must prove that an employer had a duty to recognize and
bargain with a union. The Respondent has admitted that it does.
More specifically, the Respondent has admitted that at all
times material to this case, the Respondent has recognized the
Union to be the exclusive bargaining representative, within the
meaning of Section 9(a) of the Act, of an appropriate unit of its
employees.
The Respondent also has admitted that in October 2013, it be-
came the employer of these employees and that it assumed its
predecessor’s collective-bargaining agreement with the Union.
That agreement was active from October 1, 2011 through August
31, 2014. However, the Respondent and the Union agreed to ex-
tend this contract for 6 months. Because of this extension, bar-
gaining for a new agreement did not begin until January 2015.
Typically, when an employer and newly certified or recog-
nized union bargain for a first contract, the agreement they reach
sets the pattern for future contracts. Therefore, bargaining for an
initial agreement can be particularly rigorous. Technically, the
Respondent and the Union were not negotiating a “first contract”
when they began bargaining in January 2015, because the Re-
spondent already had assumed the agreement the Union had
reached with the Respondent’s predecessor. However, the agree-
ment being negotiated in 2015 and 2016 would be setting prece-
dents in the parties’ relationship much as an initial contract does.
This fact is significant because I must decide whether the Re-
spondent was bargaining in bad faith, with an intent to avoid
reaching agreement, or whether the Respondent was bargaining
in good faith but “hanging tough” to obtain the best possible
agreement. Parties tend to be particularly tenacious when nego-
tiating a first contract, which I will keep in mind in considering
the Respondent’s intent.
For clarity, it may be helpful to note that the present decision
somewhat resembles the second reel of a movie. The “first reel,”
Judge Steckler’s decision, focused on Respondent’s bargaining
in 2015. The parties had begun negotiating in January of that
year. Then, on April 29, 2015, the Union filed an unfair labor
practice charge against the Respondent and later amended it
twice. That charge led to the hearing which Judge Steckler con-
ducted on December 15, 16 and 17, 2015. Her resulting decision,
the “first reel,” concerned this 2015 bargaining.
Complaint paragraph 12(a) alleges, and the Respondent
Perhaps the most famous of the Supreme Court’s prior restraint cases,
New York Times Co. v. United States, 403 U.S. 713, 714 (1971), concerns
an attempt by the Government to prevent the newspaper from publishing
a secret military study concerning the Vietnam war, while that war still
was being fought. In s per curiam decision, the Court held that an in-
junction against the newspaper would be an unconstitutional prior re-
straint.
Citing Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70 (1963), and
other precedents, the Court stated: “Any system of prior restraints of ex-
pression comes to this Court bearing a heavy presumption against its
constitutional validity.” New York Times v. United States, 403 U.S. at
714. Considering that the Government did not overcome that
admits, that after the hearing before Judge Steckler in December
2015, the Respondent and the Union did not have a further bar-
gaining session until February 25, 2016. In the present decision,
the “second reel” of the movie begins with this bargaining ses-
sion.
Complaint Paragraph 12(b)
Complaint paragraph 12(b) alleges that at this February 25,
2016 bargaining session, the Respondent “maintained its posi-
tion that its proposal for a collective bargaining agreement was
its ‘last, best, and final’ offer dated March 24, 2015.” The Re-
spondent’s answer denies this allegation.
The record does not establish that any management repre-
sentative specifically said any words to the effect of “we main-
tain our position that our proposal is our last, best and final of-
fer.” However, the credited testimony of Union Representative
Goff does establish that the Respondent did not offer a new pro-
posal. The Union did submit a new proposal, and Goff’s testi-
mony indicates that discussion of the Union’s proposal took up
most of the meeting:
Q. Okay. Who presented the proposal?
A. Nancy Goldman presented it to Michael Hen
Q. And did the Union actually talk through this proposal with
the Employer at the bargaining table?
A. Yes, Nancy Goldman went through each step and read each
step to Michael Henry.
Q. And what were the Employer’s responses as Ms. Goldman
read through the proposal?
A. They didn’t make necessarily specific responses at the time.
They listened.
Q. And after the Union finished reading through this proposal,
what happened next?
A. Michael Henry said that the people that he had to speak with
were not available and that he couldn’t do any more, so he con-
sidered the negotiations done for the day.
Q. And during this discussion over the Union’s February 25th
proposal, did the Employer express any willingness to move
off its wage proposal for current employees?
A. No, it did not.
Q. Were there any tentative agreements reached?
A. No, there were not.
The language of complaint paragraph 12(b) might be read to
imply that the Respondent expressed unwillingness to make a
concession. Such an implication would be incorrect. The
presumption even when it sought to prevent the publication of a secret
military document during an ongoing war, could the Government prevail
in seeking to prohibit an individual from expressing an opinion about a
union?
Additionally, a Board order typically prohibits not only a repetition of
the violative conduct but also any “like or related” conduct. The absence
of a clear line separating permissible criticism from unlawful denigration
would leave a respondent wondering exactly what speech would consti-
tute a “like or related” violation and thereby would chill expression
which the First Amendment protects.
The order in the present case extends only to true threats which the
First Amendment does not protect.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
Respondent did not make a concession at this meeting but failing
to make a concession is not the same thing as stating that it was
unwilling to do so in the future.
Based on Goff’s testimony, I conclude that the Respondent’s
chief negotiator wished to discuss the Union’s new proposal with
management officials before deciding whether to agree to it or to
make a counterproposal.
Complaint Paragraph 13(a)
Complaint paragraph 13(a) alleges that the Respondent, in an
email dated March 1, 2016, “notified the Union that the parties
were at impasse and that it intended to implement portions of its
‘last, best, and final; offer dated March 24, 2015.” The Respond-
ent admitted this allegation6 and I so find.
Complaint Paragraph 13(b)
Complaint paragraph 13(b) alleges that in an email dated
March 4, 2016, the Respondent notified the Union that it no
longer intended to implement portions of its last, best, and final;
offer dated March 24, 2015. The Respondent admitted that alle-
gation7 and I so find.
Complaint Paragraph 13(c)
Complaint paragraph 13(c) alleges that the Respondent, in an
email dated March 16, 2016, informed the Union that the parties
were at a “single-issue impasse” over Respondent’s wage pro-
posal, as contained in its March 25, 2015 “last, best, and final”
The Respondent did not deny the allegation and devoted three
paragraphs of its answer to discussing these allegations. It is dif-
ficult to characterize these paragraphs except to say that they
leave me with the distinct impression that the Respondent is ad-
mitting the allegations, but I am not 100 percent sure.
However, the record includes this March 16, 2016 email from
the Respondent’s area managing director of human resources,
Michael Henry to Union President Goldman. It states:
We will have written responses to you shortly, responding to
your written proposal. As stated in my March 1 email, while
we acknowledge “the Union on February 25 made a few moves
on a handful of Issues,” the fact remains, as also stated, that
“our respective positions on . . . the major economic issues
have long remained, and continue to remain, frozen.” Nonethe-
less, as to the “handful” of proposals you did make, we are cer-
tainly prepared to continue and complete those discussions.
The fact that you have made this handful of proposals doesn’t
change the fact that we are at Impasse over a single Is-
sueCwages. The Items Identified In my March 1 email, as ripe
for Implementation, make up the parts of our wage proposal (in
addition, we gave notice to Implement our vacation proposal,
and we noted an apparent “TA” on section 119).
The Union has made no new moves with respect to any of the
components of our wage proposal, with the exception of your
agreement to the proposed new start rates for the first year
(“2015”). However, the Union continues to reject (a) the start
6 After stating that it admitted the allegation, the Respondent’s answer
continued with extensive brief like argument. This argument does not
change or modify the Respondent’s admission.
rates for the remaining four years, (b) the change to banquet
compensation, (c) the schedule of wage Increases for current
employees, and (d) the elimination of daily overtime.
After 7 meetings at the beginning of 2015, in which the com-
pany made several moves, we made our last best & final (LBF)
offer. Our wage proposal hasn’t changed. The Union’s stead-
fast opposition to this wage proposal hasn’t changed either, nor
has the Union made any moves in the direction of our proposal
(with the exception, again, regarding the first-year new start
rates).
You indicate in your email that we had an off-the-record dis-
cussion. In which you offered 3 different ideas for reaching a
settlement. Please confirm in writing those 3 Ideas. I don’t re-
call that our discussion was all that lengthy. I do recall you in-
dicated a willingness to consider a short-term agreement. You
also mentioned, as stated in your proposal, acceptance of the
first year new start wages, and you mentioned something which
drew a comparison to the TCS contract.
While I am asking that you put your 3 Ideas in writing, I will
respond here, as well as I can, to what I understand concerning
your “3 Ideas.” First, our LBF proposal calls for 5 years. We
are not interested in a short-term contract. After all the effort
and time we’ve put into these negotiations, we are not inter-
ested in such a contract. In which the only change with regard
to ages is the adoption of the first year new start wages. Second,
as for your remarks concerning TCS, I need you to elaborate
what you are suggesting (bear in mind, I was not involved in
the separate TCS negotiations).
As we have long maintained, in order to secure and preserve
profitable success, the company must move forward with the
wage proposal we’ve made. This is far and away the single
most important issue. And yet, the Union is unwilling to budge
in our direction. We have been exceedingly patient in allowing
the Union time to make meaningful proposals that fit within
our need for wage relief. Your Union appears unwilling to do
so, and has made instead only small moves on minor issues.
While we’re willing to address those minor issues, the overall
positions of the parties appears frozen over the Union’s inabil-
ity to accept our wage proposal, and over our unwillingness to
budge on that issue.
Again, please send in writing your 3 ideas, so that we can be
sure we understand your position, and so that we can provide a
complete response.
The wording of the email differs slightly from the description
of it in complaint paragraph 13(c). Instead of stating that the
“parties were at a ‘single-issue impasse’” the email itself stated
“we are at Impasse over a single IssueCwages.” However, this
difference is insignificant. Therefore, I conclude that the General
Counsel has proven the allegations in complaint paragraph 13(c).
Complaint Paragraph 13(d)
Complaint paragraph 13(d) alleges that in “an email dated
7 The Respondent’s answer admits the allegation and then continues
with several paragraphs of brief like argument which does not contradict
or diminish the admission.
RICHFIELD HOSPITALITY, INC. 17
May 5, 2016, Respondent again informed the Union that the par-
ties were at a ‘single-issue impasse’ over Respondent’s wage
proposal, as contained in its March 25, 2015 ‘last, best, and final’
offer, and further stated to the Union that on May 12, 2016, Re-
spondent would implement portions of its ‘last, best, and final’
offer dated March 25, 2015.”
The portion of the Respondent’s answer devoted to this alle-
gation is quite lengthy, describing correspondence between the
Respondent and the Union before the May 5, 2015 email.8 After
thus setting the stage, the Respondent concludes: “Respondent
admits it once again declared impasse, and that it gave notice
anew of its intent to partially implement over the deadlocked is-
sue of wages.”
This sentence substantially admits the allegation. However, it
doesn’t admit another allegation raised in complaint paragraph
13(d), namely, the allegation that the Respondent’s May 5, 2015
email told the Union that the Respondent intended to implement
portions of its final offer on May 12, 2016.
The email, which has been received into evidence, did notify
the Union that the Respondent intended to implement parts of its
final offer. However, the email informed the Union that the Re-
spondent would begin implementation on May 16, 2016, not
May 12, 2016. The May 5, 2016 email, from Human Resources
Manager Henry to Union President Goldman, states as follows:
On March 25, 1 provided a detailed written response to the Un-
ion’s last proposal. We asked for a meeting, and offered three
dotes (3/30,4/6 and 4/7). On April 2, having not heard from
you, I asked you to provide some dotes. You responded on
April 4, but expressed no interest in meeting.
8 The Respondent’s decision to lengthen its answer by describing cor-
respondence before the May 5, 2016 email suggests that it believed this
history important to present an accurate picture. The Respondent makes
a valid point. The Board has stressed that the “totality of circumstances”
should be considered when evaluating whether a respondent has bar-
gained in good faith. CTS, Inc., 340 NLRB 904 (2003). Therefore, the
Respondent’s full answer to complaint par. 13(d) is set forth below:
This paragraph in the complaint references an “email dated May 5,
2016” from Respondent. The complaint, however, skips over and ig-
nores critically important communications between the parties sent ear-
lier, on March 25, April 2, 4, and 8, which Respondent shall now de-
scribe:
March 25, 2016 email from Henry to Goldman—Respondent sent, at-
tached to his email, a written response to Union’s February 25, 2016 pro-
posal (which also was in writing). As noted above, Mr. Henry had previ-
ously acknowledged in his March 1 email to Goldman that the Union had
“made a few moves on a handful of issues,” on February 25. The com-
pany’s March 25 document responded, in detail, to all content in the Un-
ion’s February 25 document, including those “few moves” made with
respect to a “handful of issues.” These responses included tentative
agreements with respect to some of those moves. With respect to others,
requests for clarification were set forth. With respect to those positions
of the Union the company rejected, the company’s reasons in support
were restated. Also, in the email, Henry proposed “to meet with [Gold-
man] for bargaining on any one of the following dates on the phone or in
person:” March 30, April 6 or April 7. He stated also: “As requested, in
advance of meeting, please provide me with a written statement of the ‘3
different ideas to try and reach a settlement,’ which you mentioned in
your March 11 email.”
April 2, 2016 email from Henry to Goldman Henry stated: “I have not
heard from you,” in response to the two previous emails, discussed
I emailed you again on April 8. 1 have heard nothing from you
since then.
At this point, with regard to our wage proposal, and the criti-
cally central economic issue of banquet department compensa-
tion, a clear impasse has been established. Accordingly, effec-
tive as early as May 16, the company will execute the following
partial implementation:
The new-hire starting wages, set forth in our proposed Appen-
dix A, will go into effect over the remainder of the five-year
term identified in that schedule. We had proposed previously
that these wages would become effective April 24, 2015. In
view of the delay in getting to this point, however, these new-
hire rates will instead take effect starting on the date indicated
above (May 16), and will run through the remainder of the orig-
inally proposed period of time.
The spreadsheet of wage-increases for existing employees will
also go into effect for the same period described in the imme-
diately preceding bullet point. This spreadsheet will be updated
to include all employees on the payroll as of the effective date
of implementation (again. May 16).
This implementation includes, of course, our proposed sections
111 and 112, related specifically to banquet wages.
Implementation of our proposed section 77; changed to offer
hours to less senior staff other than over-time to most seniors if
they are already working 40 hours for the work week.
The implementation of section 125 and 126 as it relates to the
accumulation of sick time and the max balance that can be sold.
above, dated March 16 and March 25. At that point, the offered date of
March 30 had come and gone. He indicated, though, that April 6 and 7
were still available, and then stated if those dates “are not convenient,
please suggest a few dates over the next two (2) weeks that better fits
your schedule.” Henry also requested, again, for Goldman to “send in
writing your 3 ideas.”
April 4, 2016 email from Goldman to Henry—Goldman responded,
but used the opportunity only to posture with claims regarding past bar-
gaining conduct. Goldman (i) did not acknowledge receipt of the March
25 document, which had responded in totality to the union’s February 25
document; (ii) did not respond to the request for bargaining dates; and
(iii) did not provide her “3 ideas.”
April 8, 2016 email from Henry to Goldman Henry stated, after re-
sponding briefly to Goldman’s posturing: “We again ask to meet, for at
least three purposes.” The three purposes were listed:
(1) to address the issues identified in our document sent on March 25;
(2) to provide you with an opportunity to respond further or to make
any moves with respect to the items on which we are firm. But, if
you’re unwilling to budge, then so be it; and
(3) to hear you out on the “3 ideas” you said you have “to try and reach
a settlement.” I ask again that you provide those 3 ideas to me in writing.
May 5, 2016 email from Henry to Goldman (the email addressed in
paragraph 13(d) of the complaint) B As memorialized in this email, the
Respondent had “heard nothing” from Goldman or the Union since
Henry’s last email, sent April 8. Moreover, a total of 41 days had passed
since Henry’s March 25 request for a meeting, during which the union
refused to meet, or even propose or agree on dates to meet. Respondent
admits it once again declared impasse, and that it gave notice anew of its
intent to partially implement over the deadlocked issue of wages.
-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
In making this implementation, the scheme of anniversary-date
increases will end.
We will implement also sections 66 and 76 of our last, best &
final proposal, related to the elimination of daily overtime.
Regarding our proposal for an enhancement to vacation entitle-
ment, as no new position has been proposed by the Union, this
will be implemented as well.
We appear to have a ‘TA’ with respect to section 119, fixing
accumulation at 240 hours. This will be implemented as well.
The change in the language in APPENDIX F which has been
proposed will be implemented as well.
In conclusion, as we are plainly at impasse, implementation
will proceed as described above. Should you have any response
to this, please advise.
The email clearly identified May 16 as the implementation date.
Crediting the email as the best evidence of its contents, I find that
on May 5, 2016, the Respondent notified the Union that it would
implement parts of its final offer and that the implementation
would take place on May 16, 2016.
Complaint Paragraph 14
Complaint paragraph 14 alleges that in emails dated May 5
and 16, 2016, the Respondent informed the Union that it was
only willing to meet if the Union presented a new proposal. The
Respondent’s answer states:
Denied. Respondent never stated or suggested, as alleged, “that
it was only willing to meet if the Union presented a new pro-
posal.” This allegation, when understood in the context of the
full bargaining history, is false, and is at odds with the written
communications. [The Complaint in this paragraph refers to
emails by Respondent dated May 5 and 16, but ignores the
Company’s email, sent by Bill Dwyer—the company’s Area
Managing Director—dated May 12; Respondent shall return,
below, to the May 16 email, but addresses first the May 5 and
12 emails.] With respect to the bargaining history, as the con-
text leading up to May 5 and 12, the company had been asking
for a meeting since March 25. That request was ignored for 41
days—from March 25 to May 5. The company then continued
to express its willingness to meet, after May 5. In the emails
sent May 5 and May 12, the company plainly invited the Union
to make a new proposal in response to its wage proposal—a
proposal, it must be remembered, that had been on the table
over a year, since March 24 2015, as to which the Union had
never made any counter-proposals or compromise moves (with
the exception of the minor move, in February, in accepting the
first-year new-hire wage, addressed above). The May 5 email
stated that the meeting was “to provide [the union] with an op-
portunity to respond further or to make any moves” on the
wage issue. The May 12 email affirmed that Respondent was
willing to receive a “new proposal” from the union. At no point
did the company ever take the position it would accept only a
capitulation to its March 24, 2015 wage proposal. There was
nothing to prevent the Union from making any proposal on
wages that it wished. The union would be free, in this meeting
requested by the company, to make a small move, a more
substantial move, or no move at all. Were the Union willing,
however, to make some movement, the company—in the in-
terest of getting a contract and restoring labor peace—could
have found itself willing to make a move of its own. The odds
of this happening, and of resulting in a contract, would turn, of
course, on how much of a move the union might make. As it
happened, though, at all points in time prior to the planned May
16 implementation (of which the union had notice, on May 5),
the union chose to make no move at all. [As noted above, this
paragraph of the complaint referenced a May 16 email—the
only email from Respondent on that date was from Bill Dwyer
to union representative Brian Brandt, affirming the proposal
provisions implemented that day.]
Complaint paragraph 14 essentially raises two allegations,
that in a May 5, 2016 email the Respondent informed the Union
it was only willing to meet if the Union presented a new proposal
and that in a May 16, 2016 email it made the same statement. I
will examine these two allegations in chronological order.
The entire text of the Respondent’s May 5, 2016 email is set
out above in the section addressing complaint paragraph 13(d).
Nothing in that email states that the Respondent was only willing
to meet if the Union presented a new proposal.
The record includes a May 16, 2016 email from Manager Bill
Dwyer to the union president. This email explains which terms
of the Respondent’s final proposal were being implemented on
that date. However, this email does not state that the Respondent
only was willing to meet if the Union offered a new proposal.
Although the evidence does not support the precise allegation
in complaint paragraph 14, namely, that on May 5 and 16 the
Respondent informed the Union that it was only willing to meet
if the Union presented a new proposal, it is worthwhile to exam-
ine the correspondence between the parties between May 5 and
16.
After receiving the Respondent’s May 5, 2016 email, Union
President Nancy Goldman replied on that same date. Her email
stated:
The Union, for its part has repeatedly moved and changed its
proposals to try and meet the Employer’s concerns. The Em-
ployer has repeatedly after receiving those proposals, left the
room and not returned for the remainder of day. Our proposals
then are answered via email, with nothing but rejections. The
Employer has not even attempted to address Union concerns or
counter any of the Union’s proposals. You expect us to negoti-
ate against ourselves. This has been a pattern with you. Local
21 does not believe that the Parties are at impasse and is willing
to meet. If you choose to implement your “final offer”, we will
be forced to file new bad faith bargaining charges with the
NLRB. We are willing to meet and further discuss a good faith
settlement Agreement. We are available May 12, 24, or June 7,
or 9 to meet for the purpose of collective bargaining.
Henry replied on May 6, 2016. His email to the Union stated:
Does the Union have any proposals to make? We have received
no substantive responses or new proposals our detailed re-
sponse & counter to your written statement of position of Feb-
ruary 25. You have also not responded to our requests to meet
RICHFIELD HOSPITALITY, INC. 19
for discussions. In addition, despite my repeated requests, you
have failed to clearly identify the three Ideas you said you had
for reaching resolution. Mere willingness to meet is not
enough to break Impasse. We are clearly at Impasse. The Na-
tional Labor Relations Act does not require us to engage in a
‘fruitless marathon’ of negotiations. And so, I ask again: Does
the Union have any proposals to make?9
On Monday, May 9, 2016, Union President Goldman replied
to Henry’s May 6 email. She disputed Henry’s claim that the Un-
ion had not responded to requests to bargain and took aim at
Henry’s “mere willingness to meet” comment:
Michael: Actually a mere willingness IS essential and key to
reaching an agreement BOTH parties must have a willingness
to want to resolve issues and move forward, and a willingness
to rethink and compromise their `positions. While the NLRA
may not require us to engage in a ‘fruitless marathon’ of nego-
tiations, it also does not allow one side to demand preset con-
ditions or proposals from the other party. You claim we have
not responded to our requests to meet for discussions. In my
email from May 5th we offered several dates to meet but in
your email below, but you did not respond that. Are you refus-
ing to meet?
On May 10, 2016, Henry emailed Goldman that he was taking
a job with another company and that Dwyer would assume the
role as the Respondent’s chief negotiator. Also on May 10, 2016,
Goldman notified the Respondent that it would no longer be
available for negotiations on two of the dates that it had offered,
but remained available to meet on June 7 or 9.
On May 12, 2016, Dwyer sent Goldman an email concerning
the Respondent’s willingness to meet. It stated:
We are at impasse on the issues related to wages. Implementa-
tion is ripe, and will go forward.
Michael offered, in his April 8 email, to meet regarding the fol-
lowing three (3) items:
1. To address the issues identified in Michael’s document sent
on March 25
2. To provide you with an opportunity to respond further or to
make any moves with respect to the items on which we are firm
(i.e. the wage issues, as to which we are at an impasse)
3. To hear you out on the “3 ideas” you said you have “to try
and reach a settlement”
Between April 8 and May 5, you refused to meet. Our position
at this point is the following:
A. We are still willing to meet related to item (1)
B. As for item (2), we are not willing to meet related to the
impasse issues we are implementing, unless you have a new
proposal to make
C. As for item (3), Michael has asked you repeatedly to iden-
tify those three ideas in writing. You have declined to do so.
Absent that, it is hard to justify a meeting on that basis.
9 It seems a bit odd that Henry would accuse the Union of not re-
sponding to requests to bargain and then state that “Mere willingness to
meet is not enough to break impasse.” Considering that the Union had
warned that it would file unfair labor practice charges if the Respondent
Respondent sent this May 12 email a week after it had an-
nounced it was going to implement portions of its wage proposal.
The email did state that it was willing to meet regarding these
matters only if the Union had a new proposal to make.
As noted above, the Respondent did send the Union an email
on May 16, 2016, explaining what parts of its wage proposal it
had implemented that day. However, this email did not state that
the Respondent was unwilling to meet unless the Union made a
proposal.
Therefore, if the Respondent made any statement about will-
ingness to bargain at all similar to that alleged in complaint par-
agraph 14, it was the statement in Dwyer’s May 12 email. How-
ever, this email did not say that it was only willing to meet if the
Union made a proposal, the statement alleged in complaint par-
agraph 14. To the contrary, it expressed the Respondent’s will-
ingness to meet, without any preconditions, on certain matters.
In sum, I conclude that the government has not proven that
Respondent sent an email to the Union, either on May 5 or May
16 or at some time in between, which stated it was only willing
to meet if the Union presented a new proposal. However, I also
find that the Respondent, on May 12, 2016, told the Union that
it would not discuss its wage proposal further unless the Union
offered a new proposal on wages.
Complaint Paragraph 15
Complaint paragraph 15 alleges that on “about May 12, 2016,
Respondent unilaterally implemented portions of its ‘last, best,
and final’ offer, including its wage proposal.” The Respondent’s
answer states: “Denied. The partial implementation occurred on
May 16.”
As discussed above, the record establishes that the Respond-
ent implemented parts of its proposal on May 16, 2016. I so find.
Complaint Paragraph 16
Complaint paragraph 16(a) alleges and the Respondent admits
that the Respondent and Union resumed negotiations on June 7,
2016. The Respondent also admits that the parties reached some
tentative agreements at that meeting, as alleged in complaint par-
agraph 16(b). I so find.
Complaint Paragraph 17(a)
Complaint Paragraph 17(a) alleges that on June 22, 2016, Re-
spondent informed the Union, in writing, that Respondent has
not budged on any of its wage proposals since making its last[,]
best[,] and final offer, on March 24, 2015” and that it believed
the parties were still at impasse on the critical topic of wages.
The Respondent’s answer stated:
Denied. The incomplete quote in this complaint paragraph,
lifted from the June 22, 2016 letter—in which the company ac-
curately stated it “had not budged on any of its wage pro-
posals”—is intended to be misleading. It is taken out of context
within the letter, and out of context with the bargaining history.
The complaint’s disingenuous use of this quote ignores, first,
implemented its wage proposal, and considering how recently the Re-
spondent’s records had been introduced in a Board proceeding, Henry
might well have been writing an email not merely to be read by the Union
but by the Board as well.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
the fact that the parties held seven bargaining sessions before
the company made its March 24, 2015 wage proposal. Second,
the complaint’s use of this quote ignores the statements in the
company’s June 22 letter (and in the history recited above) tied
to the company’s willingness to receive a proposal from the
union on wages. This willingness had been expressed by the
company since March 25, 2016. [Italics added.]
Because the Respondent contends that the complaint takes the
letter’s words out of context, creating a misleading impression,
the letter should be examined particularly carefully to determine
whether the language in complaint paragraph 17(a) misleads.
Here is the text of that June 22, 2016 letter from the Respond-
ent’s counsel, Arch Stokes and Karl M. Terrell, to Union Presi-
dent Goldman. For clarity, I have italicized the words quoted in
paragraph 17(a) of the complaint:
This letter is from both of us signing below (both of us, as you
know, have participated in this bargaining).
Our client has costed out and considered your proposal made
on June 7, and shall respond by this letter. We start from the
fact the company has not budged on any of its wage proposals
since making its last best and final offer, on March 24, 2015.
One year and one day later, on March 25, 2016, the company
responded in detail to your proposal made February 25, 2016,
in which you had made minor moves on minor issues. The
company, in its March 25, 2016 response, remained firm on its
wage proposals. Nonetheless, the company offered to meet and
discuss the various open issues, as identified in the exchange of
the two documents dated February 25 and March 25.
Over the length of 41 days—from March 25, 2016 to May 5,
2016—the company repeatedly asked for days to meet You de-
clined all of these invitations, and made no new proposals re-
lated to wages, even though the Union was certainly free to do
so, and was invited to do so. Michael Henry, for example, in
his April 8 email to you stated that the meeting proposed by the
company would “provide you with an opportunity to respond
further or to make any moves with respect to the issues on
which we are firm,” stating further: “But, if you’re unwilling to
budge, then so be it”
At the end of this 41-day period, on May 5—having received
no agreement to meet and no new proposals—Michael Henry
sent notice to you, advising of the company’s intent to imple-
ment specific, identified LBF proposals, “effective as early as
May 16.”
then, later in the day on May 5, did you finally agree to meet.
You proposed May 12 as a meeting date, along with May 24,
and June 7 and 9. Michael Henry emailed you the immediate
next day, and directly asked if you had any proposals to make.
You responded on May 9 and on May 10, but you made no
new proposals, nor did you promise—or even indicate—that
proposals would be made. In your May 10 email (to Bill
Dwyer), you retracted your offered dates of May 12 or 24, leav-
ing June 7 or 9 available.
On May 12, Bill Dwyer emailed you, affirming the impasse,
and affirming also the company’s willingness to meet and
discuss the issues identified in Michael Henry’s March 25 doc-
ument In addition, with respect to the wage issues at impasse.
Bill stated the following: “We are not willing to meet related to
the impasse issues we are implementing, unless you have a new
proposal to make” (emphasis added).
You declined to take up Bill’s May 12 suggestion to make such
a proposal. Implementation, accordingly, proceeded on May
16, as confirmed that day by Bill’s email to Brian Brandt.
As has been stated several times, it is more than obvious—
given the deadlock over the single issue of wages —that the
parties have been unable to reach a final agreement We have,
nonetheless, remained willing to meet on any other issues
which can be negotiated. To that end, we accepted one of the
dates you proposed—June 7—and we met that day. A number
of minor-issue agreements were reached, and are memorialized
in the attached document.
At the end of the June 7 meeting, you made a new wage pro-
posal, which you then provided in writing later that day. The
proposal, however, comes too late. The proposal, even assum-
ing it had been more timely made, does not move anywhere
close enough to bridge the gap that stood between the parties
for over a year—from March 24, 2015 to May 16, 2016. The
proposal is rejected.
Your June 7 proposal also restated the same H&W proposal
that the Union made on February 25, 2016. That proposal is
rejected, once again, based on cost. The status quo of the H&W
provision, a set forth in the expired agreement, shall remain in
place.
We have costed out the other ‘economic’ proposals you made
at the end of the day on June 7. These proposals, together with
the Union’s wage and H&W proposals, are considerably more
expensive—separately, and in the aggregate—than the cost of
the company’s LBF offer. On that basis, consistent with our
long-maintained position of the need for the company to align
itself more competitively within the Rochester market, these
proposals are rejected.
Again, we have attached a memorandum listing the minor-is-
sue agreements we reached on June 7, we wish to add, here, a
few additional comments concerning two other issues dis-
cussed on June 7:
Section 76 of our LBF proposal (allowing the company to tem-
porarily move employees from one hotel to another—please
see the comments on this proposal in Michael Henry’s March
25 document, in which he offered—for clarification pur-
poses—the following language: “. . . and provided further that
all of the employees in the classification at the hotel to which
the employee will be moved are scheduled for and able to work
their forty (40) hours.” In our meeting on June 7, the Union
again rejected this proposal, notwithstanding the clarifying lan-
guage. Please note, in addition, that Section 76 was one of the
proposals identified by Michael on May 5 as ripe for imple-
mentation on May 16. Nonetheless, this proposal was NOT im-
plemented that day, inasmuch as we wanted to see if we could
obtain your approval of this Section with the addition of the
clarifying language. Alas, as noted above, this proposal was
RICHFIELD HOSPITALITY, INC. 21
rejected. Accordingly, you are hereby advised that Section 76,
with the added clarifying language, will be implemented the
beginning of the first workweek following July 7. If you wish
to discuss this proposed implementation further, or make a
counter, we are willing to entertain any and all suggestions.
Temporary Employees—We made a modest move off our LBF
position, in the June 7 negotiation, by offering to reduce the 24-
week period in that proposal to 20 weeks. We did so in hopes
of closing the gap between our LBF position and the position
of the Union (as expressed in its February 2016 proposal). You
not only declined to close this gap, you declared—as stated in
your notes on our June 7 meeting (sent June 7)—that the
“UNION Proposed to Delete entire Article.” As we understand
this, and your comments on June 7, the Union has not only
withdrawn its previous compromise proposals to our LBF pro-
posal on this issue, the Union has declared its desire to remove
altogether from the contract any provision relating whatsoever
to temporary employees {i.e., including the provision as it
stood, in Article 2, in the expired contract). Consequently,
given this regressive position, the impasse concerning this par-
ticular issue is more fixed than before. Accordingly, you are
hereby advised that the company’s LBF proposal (using 20
weeks) will be implemented the beginning of the first work-
week following July 7. If you wish to discuss this issue further,
we are willing to entertain any and all suggestions.
Because the words quoted in complaint paragraph 17(a) do in-
deed appear in the Respondent’s counsel’s June 22, 2016 letter,
I conclude that the General Counsel has proven that allegation.
However, in weighing the import of those words, I will consider
them in the context of the entire letter and, indeed, in the context
of the totality of circumstances.
Complaint Paragraphs 17(b) and (c)
Complaint paragraph 17(b) alleges that in the same June 22,
2016 letter from the Respondent’s counsel to the union president,
the Respondent further informed the Union that it planned to im-
plement its proposals related to temporary employees and tem-
porary assignments between different hotels. The Respondent
admits this allegation and I so find.
The Respondent also admits that on July 7, 2016, it unilater-
ally implemented these proposals, as alleged in Complaint para-
graph 17(c). I so find.
Complaint Paragraph 18
Complaint Paragraph 18 alleges that since about February
2016, Respondent has engaged in surface bargaining by, among
other actions:
“Refusing to bargain over wages, in spite of the fact that Re-
spondent’s wage proposal was found unlawful in the decision
and recommended order described above in paragraph 5, sub-
paragraph (b);
“Conditioning bargaining with the Union on the parties not dis-
cussing wages;
“Repeatedly telling the Union representatives that it was un-
willing to move off its ‘last, best, and final; offer of March
2015, without having remedied the conduct found unlawful in
the decision and recommended order described above in para-
graph 5, subparagraph (b);
“Conditioning further bargaining on the Union making ‘suffi-
cient; movement in its proposals, while refusing to move off its
own proposals that were made at a time when Respondent was
bargaining in bad faith;
“Since March 1, 2016, repeatedly threatening the Union that
the parties were at impasse, and threatening the Union that Re-
spondent intended to implement portions of its final offer, in
spite of the fact that the parties had met one time since the un-
fair labor practice hearing described above in paragraph 5, sub-
paragraph (a);
“Implementing portions of its March 15, 2015 ‘last, best, and
final; offer at a time when the Respondent and the Union had
not engaged in sufficient bargaining and had room for further
movement on terms and conditions of employment;
“Undermining and disparaging the Union both at and away
from the bargaining table, by the conduct listed above in para-
graph 6;
“Failing and refusing to provide necessary health insurance
cost information that was initially requested by the Union in
April 2015, and that was found unlawful in the decision and
recommended order described above in paragraph 5, subpara-
graph (b);
“Failing and refusing to implement longevity pay increases as
required in the decision and recommended order described
above in paragraph 5, subparagraph (b).
The Respondent denies this allegation.
The Nature of “Surface Bargaining”
Unlike the complaint in the case before Judge Steckler, the
present complaint alleges that the Respondent has engaged in
“surface bargaining,” a term the Board has defined as “employ-
ing the forms of collective bargaining without any intention of
concluding an agreement.” U.S. Ecology Corp., 331 NLRB 223
(2000). To determine whether an employer has engaged in sur-
face bargaining, the Board looks to the totality of the Respond-
ent’s conduct, both at and away from the bargaining table. Hard-
esty Co., 336 NLRB 258 (2001).
A persistent, duplicitous and malignant bad faith drives sur-
face bargaining. Such bad faith is persistent because surface bar-
gaining takes place over a span of time, during which the offend-
ing party harbors a fixed intent not to reach agreement. It is du-
plicitous because it entails pretending sincere interest in reaching
an agreement while secretly pursuing the opposite goal. It is ma-
lignant because it aims to subvert the very heart of the relation-
ship between the employer and the exclusive bargaining repre-
sentative.
Section 8(d) of the Act defines the duty to bargain as the obli-
gation “to meet at reasonable times and confer in good faith” and,
at the request of either party, to execute a written contract em-
bodying the agreed-upon terms and conditions of employment.
A party engaged in surface bargaining meets and confers but
with the unspoken goal of reaching impasse rather than
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
agreement.
However, surface bargaining can be as difficult to distinguish
from lawful “hard bargaining” as a coral snake from a king
snake. The same Section 8(d) which defines the bargaining obli-
gation also provides that the duty to bargain in good faith “does
not compel either party to agree to a proposal or require the mak-
ing of a concession.” 29 U.S.C. 158(d). Thus, a party’s unwill-
ingness to give in, by itself, does not establish a lack of good
faith.
It isn’t necessary for surface bargaining to begin at or before
the start of negotiations. An employer may come to the first ne-
gotiating session with the intent to drive a hard bargain, but a
bargain nonetheless. At some point later in the negotiations, the
employer’s intent might change from aiming at a hard bargain to
seeking no agreement at all. When the intent to frustrate rather
than reach agreement takes over, unlawful surface bargaining be-
gins.
The General Counsel has alleged such a theory of violation
here. The complaint in the case before Judge Steckler did not
allege surface bargaining, and the present complaint alleges that
the Respondent has been engaging in surface bargaining “since
about February 2016.” These two facts—that the General Coun-
sel did not plead surface bargaining in the prior case and now
only alleges that surface bargaining began in about February
2016—amount to a concession that the Respondent was not en-
gaged in surface bargaining in 2015.
Complaint paragraph 18 lists a number of actions which, it al-
leges are ways that the Respondent engaged in surface bargain-
ing. Some of these involve conduct which Judge Steckler found
violative, for example, failing and refusing to provide health in-
surance cost information and failing and refusing to implement
longevity pay. However, I do not understand the complaint to
allege that these actions constituted surface bargaining in 2015.
Rather, I understand the complaint to allege that these violations
continue because the Respondent has not yet provided the re-
quested information and has not yet implemented the longevity
pay increases. Thus, the complaint effectively alleges that these
alleged continuing violations became part of surface bargaining
when the Respondent began engaging in surface bargaining in
about February 2016.
Complaint paragraph 18 alleges that the Respondent engaged
in surface bargaining by, among other things, refusing to bargain
over wages “in spite of the fact that Respondent’s wage proposal
was found unlawful in the decision and recommended order de-
scribed above in paragraph 5, subparagraph (b).” However, the
statement in quotes is not an accurate description of Judge Steck-
ler’s decision.
Judge Steckler did not “find unlawful” the Respondent’s wage
proposal. Neither the remedy nor the order portion of her deci-
sion requires the Respondent to rescind this proposal, as would
be the case if the proposal were unlawful.
Bargaining proposals can be classified as mandatory, permis-
sive, or prohibited, an “unlawful” proposal falling into this third,
and rare, category. If one party proposed that the other party en-
gage in criminal conduct, for example, that would be unlawful.
The Board certainly could order a Respondent to withdraw an
unlawful proposal.
A proposal concerning a permissive subject of bargaining,
such as what job classifications are included in the bargaining
unit, may be raised and discussed but neither party may insist
until impasse that the other side agree to it.
As the name implies, parties have a duty to bargain about man-
datory subjects, such as wages and hours. However, as noted
above, Section 8(d) of the Act, defining the duty to bargain col-
lectively, provides that “such obligation does not compel either
party to agree to a proposal or require the making of a conces-
sion.”29 U.S.C. 158(d). Because of this proviso, I have some
doubt about the extent of a judge’s authority to order a respond-
ent to withdraw a proposal about a mandatory subject of bargain-
ing. But, as already noted, Judge Steckler’s decision did not or-
der the Respondent to withdraw the proposal or offer a new one
in its place.
Judge Steckler’s decision also did not brand the Respondent’s
wage proposal unlawful. To the contrary, it concerns a manda-
tory subject of bargaining.
Rather, as I understand her decision, she found that the Re-
spondent had bargained in bad faith because it offered a confus-
ing proposal and then failed to provide an explanation sufficient
to clear up the confusion. Thus, when asked a question about the
proposal, the Respondent provided pie charts purporting to show
each employee’s compensation. However, Judge Steckler found
that the pie charts themselves were confusing, and did not answer
the question the Union had asked.
Additionally, the General Counsel’s brief seems to back away
from the Complaint’s allegation that the proposal had been
“found unlawful” by Judge Steckler. The brief seems to concede
that there was nothing wrong with the substance of the wage pro-
posal:
As found by ALJ Steckler, the issue with Respondent’s wage
proposal is not one of substance—the unlawfulness of Re-
spondent’s proposal rests on the fact that it is simply incompre-
hensible. In order to bargain in good faith, parties must, by ne-
cessity, present intelligible proposals.
In the abstract, that argument certainly is sound. If an em-
ployer handed the union a proposal written in ancient hiero-
glyphics, it might well raise a question about that employer’s in-
tent.
However, the General Counsel bears the burden of proving
that the union representatives did not understand the proposal.
In the present case, the Government must establish that the Un-
ion did not understand the wage proposal when negotiations re-
sumed in February 2016. The complaint alleges that the Re-
spondent began surface bargaining in about February 2016.
A finding that the wage proposal was incomprehensible when
the Respondent first offered it in 2015 does not warrant an as-
sumption that it remained incomprehensible because even com-
plex things become understood. If incomprehensibility were
eternal, no one could ever learn calculus, or a foreign language,
or the Internal Revenue Code.
The General Counsel’s Brief cites Union Official Goff’s tes-
timony that he did not understand the proposal as of May 26,
2016, shortly after the Respondent implemented it. However, I
do not credit this testimony.
The Respondent made its wage proposal on an Excel spread-
sheet which showed the hourly rate of each employee and the
RICHFIELD HOSPITALITY, INC. 23
hourly rate each employee would receive during each year of the
proposed contract. On cross-examination, Goff demonstrated
that he fully understood the information on the spreadsheet.
At one point during Goff’s testimony about the spreadsheet,
counsel for the General Counsel objected, stating “the document
speaks for itself here.” That observation correctly described the
spreadsheet. The entries were so clearly labeled and easy to un-
derstand that the spreadsheet needed no one to explain it.
Considering the clarity of the spreadsheet, I reject Goff’s tes-
timony that, in 2016, he and the other union negotiators did not
understand the proposal which the spreadsheet conveyed. Con-
fusion arose during the 2015 bargaining not because of the
spreadsheet but because the Respondent prepared and gave to the
Union pie charts purporting to show the total compensation for
each employee, including expenses such as the cost of workers’
compensation insurance.
The pie charts caused considerable confusion and distraction.
Here, I do not second guess Judge Steckler’s conclusions that the
union negotiators were confused and that the Respondent bar-
gained in bad faith. However, the question for me does not con-
cern whether the wage proposal was confusing in 2015 but
whether it was confusing in February 2016. The spreadsheet, not
the pie charts, memorialized the Respondent’s proposal and the
meaning of this document speaks with crisp clarity.
In the portion of the General Counsel’s Brief quoted above,
the Government argued that to meet the standard of bargaining
in good faith, a party must present intelligible proposals. The
brief continues by arguing that the Board has authority to order
an employer to change the form (but not the substance) of a pro-
posal to clarify it:
Requiring Respondent to modify its wage proposal, such that it
can be understood by the Union at the bargaining table, simply
does not run afoul of the general proposition that the Board can-
not force parties to make concessions. See, e.g., Alwin Manu-
facturing Co., 326 NLRB 646, 648 (1998), [enfd.] 192 F.3d
133 (D.C. Cir. 1999) (Order prohibiting employer from main-
taining proposals regarding production and changes in vacation
policy that were found unlawful in previous decision).
In other words, the General Counsel claims that the form of
the Respondent’s proposal can be changed without affecting its
substance. More than that, the government is arguing that the
form must be changed to make the proposal lawful. Even more
than that, the General Counsel asserts that the Board has the au-
thority to order the Respondent to change the form of its pro-
posal.
However, the General Counsel does not say what kind of
change could be made in the format which would clarify the pro-
posal without changing its substance. The Respondent’s pro-
posal, in spreadsheet form, shows the wage rate each employee
would receive during each year of the proposed agreement, and
does so clearly and succinctly. No better way to present this in-
formation is self-evident and the Government has not proposed
one.
To summarize, the General Counsel’s Brief states that the is-
sue “is not one of substance.” Rather, according to the govern-
ment, the Respondent’s proposal is so confusing that it consti-
tutes evidence of bad faith, of an intent not to reach an
agreement. However, the General Counsel has not demonstrated
how the proposal, in spreadsheet form, is confusing and has of-
fered no example of a clearer alternative. Contrary to the Gen-
eral Counsel, I find that the proposal is clear. Therefore, I reject
the argument that it constitutes evidence of bad faith.
Complaint paragraph 18 also alleges that the Respondent en-
gaged in surface bargaining by, among other things, “Condition-
ing bargaining with the Union on the parties not discussing
wages.” The General Counsel’s brief cites as examples the May
6, 2016 email from Respondent’s lead negotiator Henry to Union
President Goldman and the May 12, 2016 email from Dwyer to
Goldman. Both are set forth above.
Henry’s May 6, 2016 reply to a May 5 email which stated the
Union’s availability to meet on four specific dates. In response,
Henry asked if the Union had any proposals to make.
At this point, the Respondent and Union already had gone
through one unfair labor practice hearing and the Union and
Goldman had warned that the Union would file further charges
if the Respondent unilaterally implemented its wage proposal. In
such circumstances, there would be a temptation to fill an email
with self-serving statements and posturing.
Because neither Henry nor Goldman testified, the record pro-
vides no ready way either to verify or disprove some of the fac-
tual statements in the emails. So, I am a bit wary of two claims
which Henry made in his May 6 email. The first involves an
assertion that the Union had “not responded to our requests to
meet for discussions.”
The second claim continues an assertion which Henry had
made in earlier emails, namely, that at one point Goldman had
told him she had three ideas for resolving the issues in the nego-
tiations. In his May 6 email, Henry complained that Goldman
had never clearly identified those three ideas. Henry continued:
Mere willingness to meet is not enough to break Impasse. We
are clearly at Impasse. The National Labor Relations Act does
not require us to engage in a ‘fruitless marathon’ of negotia-
tions. And so, I ask again: Does the Union have any proposals
to make?
Nowhere in this email does Henry expressly state that the Re-
spondent would not bargain with the Union unless it was going
to make a new proposal. Moreover, I am reluctant to infer such
a condition.
If, as Henry claimed, the Union had not responded to requests
to meet, and if, as Henry also claimed, Goldman had three ideas
for resolving the issues but never disclosed them, then Henry was
merely expressing frustration when he asked if the Union had
any proposals to make. In the absence of testimony by Henry
and Goldman, these “ifs” linger. Therefore, I will not read into
the email an implication that Henry really was saying “We won’t
meet unless the Union offers a new proposal.”
Dwyer’s May 12, 2016 email to Goldman does include an ex-
plicit statement that “we are not willing to meet related to the
impasse issues we are implementing, unless you have a new pro-
posal to make.”
Clearly, if the Respondent had required the Union to agree to
a proposal as a condition of meeting, such a precondition would
be inconsistent with the duty to bargain in good faith and would
violate the Act. Carey Salt Co., 358 NLRB 1142 (2012).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
However, the Respondent here did not require the Union to agree
to anything as a condition of bargaining. It only required the
Union to make a new proposal.
The Respondent was saying, in effect, “We’ve talked enough.
We’re not going to waste time talking if there’s little chance that
an agreement with result.” Henry’s May 6, 2016 email had said
it more politely: “The National Labor Relations Act does not re-
quire us to engage in a fruitless marathon’ of negotiations . . .”
To describe 2 bargaining sessions in 4 months as a “marathon”
suggests that the Respondent gets easily winded. Even including
the 11 bargaining sessions in 2015, the negotiators met on aver-
age less than once a month. Moreover, an employer acts at its
own peril when it unilaterally decides that negotiations have be-
come a “fruitless marathon.”
The Respondent presumes that only a new proposal from the
Union will allow further negotiations to be productive. That at-
tempt to redefine and constrict the negotiating process suggests
an intent to downsize its duty to bargain. Section 8(d) of the Act
defines that duty broadly as the obligation “to meet at reasonable
times and confer in good faith . . .” 19 U.S.C. ‘ 158(d). Ex-
changing proposals is only one part of the duty to meet and con-
fer.
Although the Respondent’s wage proposal, presented on a
spreadsheet, is easy to understand, it has many moving parts.
The spreadsheet shows the wage rate each individual employee
would receive each year over the term of a 5-year contract. The
Union has a duty to represent each of these workers fairly, so it
has a compelling interest in making sure that each employee’s
wage rate, when compared to the wage rates received by her fel-
low employees, is perceived as fair.
Stated another way, should the Union agree to a wage pro-
posal which employees believe unfairly favors some over others,
it would undermine the Union’s support among employees and
make representing them more difficult. Therefore, the Union has
a compelling interest in fully understanding why the Respondent
proposed a particular wage rate for one employee but proposed
a different rate for another similar employee.
The Respondent repeatedly has stated that this proposal is its
final offer and that it will not budge. Presumably, if the Union
made a counterproposal with a greater total cost, the Respondent
would reject it. However, the Union might well make a counter-
proposal which did not increase the cost to the Respondent but
allocated the money differently among the employees. As dis-
cussed above, it has a compelling interest in treating all employ-
ees fairly, and it might well decide that how the Respondent’s
proposal allocated the money was not fair.
To reach a conclusion about the fairest way to allocate the
money, and to embody that conclusion in a proposal, the Union
would need to meet with the Respondent to discuss how and why
the Respondent decided upon wage rates for each employee.
Only after such discussions would the Union be prepared to sub-
mit a comprehensive counterproposal.
The Respondent decided to submit a wage proposal which
treats each employee separately. Having done so, it may not
deny the Union the opportunity to engage in the detailed discus-
sions needed to formulate a counterproposal. To require the Un-
ion to submit a proposal as a precondition of engaging in discus-
sion gets it exactly backwards.
In these circumstances, the Respondent’s refusal to discuss its
wage proposal unless the Union first submitted a proposal con-
stitutes a discrete instance of bargaining in bad faith, in violation
of Section 8(a)(5), and is also evidence to consider in ascertain-
ing the Respondent’s overall intent.
Complaint paragraph 18 also alleges that the Respondent en-
gaged in surface bargaining by, among other things, repeatedly
“telling the Union representatives that it was unwilling to move
off its last, best, and final; offer of March 2015, without having
remedied the conduct found unlawful” in Judge Steckler’s deci-
sion.
Presumably, the words “unwilling to move off its ‘last, best,
and final offer’” mean “unwilling to make a concession.” In the
labor relations context, the phrase “move off of” certainly would
carry that connotation. However, the Supreme Court has held
that the Board may not, either directly or indirectly, compel con-
cessions or otherwise sit in judgment upon the substantive terms
of collective bargaining agreements. NLRB v. American Na-
tional Insurance Co., 343 U.S. 395 (1952).
Considering a refusal to make a concession to be evidence of
bad faith would be compelling a concession indirectly, which the
Board may not do. It is true that the Board may take into account
a Respondent’s failure to make any concession at all, or even a
pattern of refusals to make concessions, when assessing an em-
ployer’s motive or good faith. But here, the Complaint seeks to
infer bad faith from the Respondent’s refusal to make a conces-
sion on a specific proposal, its final offer. That would, I believe,
be inconsistent with the Supreme Court’s holding in American
National Insurance Co.
Moreover, for reasons discussed above, I have concluded that
the Respondent did not violate the Act when it came to the bar-
gaining table in February 2016 with the same wage proposal
which had been examined by Judge Steckler. Her decision did
not order the Respondent to withdraw or rewrite that proposal.
By the time bargaining resumed in February 2016, the Union
fully understood the proposal.
For these reasons, I will not consider the Respondent’s refusal
to “move off of” its final offer as evidence of bad faith or surface
bargaining.
Complaint paragraph 18 also alleges that the Respondent en-
gaged in surface bargaining by, among other things, “Condition-
ing further bargaining on the Union making ‘sufficient’ move-
ment in its proposals, while refusing to move off its own pro-
posals that were made at a time when Respondent was bargain-
ing in bad faith.” For reasons discussed above, I will ignore the
words “while refusing to move off of its own proposals that were
made at a time when Respondent was bargaining in bad faith.”
The Supreme Court’s American National Insurance Co. decision
makes problematic the words “while refusing to move off of its
own proposals.”
However, those words are superfluous. The Respondent had
presented the Union with a final offer that reasonably would
RICHFIELD HOSPITALITY, INC. 25
require extended discussion.10 Then, it sought to charge an ad-
mission price—a new proposal from the Union—before it would
bargain. The law has imposed on the Respondent a duty to bar-
gain with the Union. The Respondent may not lawfully exact a
price for doing what the law requires.
Complaint paragraph 18 also alleges that the Respondent en-
gaged in surface bargaining by, among other things, “repeatedly
threatening the Union that the parties were at impasse, and
threatening the Union that Respondent intended to implement
portions of its final offer, in spite of the fact that the parties had
met one time since the unfair labor practice hearing” before
Judge Steckler. The General Counsel’s brief states:
Respondent’s premature threats of impasse further demonstrate
its bad faith at the bargaining table. The Board has previously
held that such threats can serve as evidence of bad faith.
Grosvenor Resort, 336 NLRB 613, 615 (2001), [enfd.] 52 F.
App’x 485 (11th Cir. 2002); Regency Service Carts, 345
NLRB 671, 673 (2005). For example, in Grosvenor Resort, the
Board found that Respondent’s declaration of impasse, made
at a time when the parties were still making movement at the
bargaining table, “was indicative of bad faith.” 336 NLRB at
616.
The cited Grosvenor Resort and Regency Service Carts do not
use the term “threatening impasse,” which I believe is confusing.
The word “threat” indicates coercion to compel someone to do
(or not do) something. However, the reason why a premature
declaration of impasse reveals bad faith is its unseemly eager-
ness.11 The surface bargainer anticipates impasse the way a child
in the back seat anticipates the end of a long motor trip, repeat-
edly asking “are we there yet?” Only at impasse can the surface
bargainer act unilaterally, and he can hardly wait to get there.
Complaint paragraph 18 does not specifically describe one ac-
tion the Respondent took in its urgent push for impasse, but I
believe this action reveals much about the Respondent’s true mo-
tivation. It offers such a revealing glimpse of the Respondent’s
intent that it merits examination here even though it revisits mat-
ters already described above.
As the anticipated implementation date approached, the Re-
spondent prevented the Union from bargaining by insisting that
the Union make another proposal as a precondition of bargaining
about wages. This precondition alone emanates a huge whiff of
bad faith.
It bears repeating that the Respondent’s wage proposal could
cause the Union more trouble than a box of snakes. Proposing
separate wage rates for each individual employee—and the Re-
spondent’s proposal listed more than 400 employees by name—
was a surefire way to stir up trouble in the bargaining unit and
sow seeds of hostility towards the Union. The employees less
favorably treated would feel discriminated against and would
blame the Union for agreeing to the proposal.
As the exclusive bargaining representative, the Union has a
10 The Respondent’s proposal, which specified the wage rate for each
individual employee for each year of the contract, almost certainly would
cause some employees to believe they were being treated unfairly vis à
vis their coworkers. They would blame the Union for agreeing to the
proposal and might even charge the Union with breach of the duty of fair
duty of fair representation. Alleged breaches of this duty can
lead either to an unfair labor practice proceeding before the
Board or to a lawsuit in court. Vaca v. Sipes, 386 U.S. 171
(1967).
Union officials, well aware of this duty, would view the Re-
spondent’s proposal with trepidation. How could they tell if the
proposal discriminated against women or members of minority
groups? Or employees over 40? Or employees with disabilities?
How could they know whether some less favorably treated em-
ployees had engaged in protected concerted activities?
For that matter, how could union officials know that the Re-
spondent wasn’t simply playing favorites? Employees typically
expect a union to fight favoritism, not agree to it.
Finding answers to these questions would necessitate exten-
sive discussions with Respondent. Only by meeting and confer-
ring with the Respondent could the Union obtain reliable an-
swers to these questions. Only then, after such careful discus-
sions, would the Union be aware of problems needing correction.
Only then could the Union present a counterproposal to correct
the problems discovered.
Yet the Respondent insisted that the Union present its pro-
posal before it would discuss the matter. That precondition pre-
vented the Union from doing its job as the employees’ repre-
sentative.
In deciding what this precondition reveals about the Respond-
ent’s intent, I take into account that the Respondent was repre-
sented by attorneys with decades of negotiating experience. The
senior partner at the law firm representing the Respondent had
even written a book about collective bargaining in 1981.
Such expert counsel surely knew that the Respondent was giv-
ing the Union a proposal which, if agreed to, could cause the
Union to lose the support of many employees and which even
could lead to litigation against the Union. The Respondent’s
counsel surely recognized that the Union would have to discuss
the proposal at length with Respondent before being able to for-
mulate an appropriate counterproposal. Therefore, I conclude
that the Respondent’s insistence on a counterproposal before be-
ing willing to discuss the proposal clearly reveals an intent to
bargain in bad faith.
Complaint paragraph 18 alleges other ways in which the Re-
spondent engaged in surface bargaining. However, the most tell-
ing evidence of surface bargaining does not fit neatly into one of
that paragraph’s listed categories. Still, the paragraph makes
clear that the alleged surface bargaining extended beyond the
listed examples to “other actions.” Here, therefore, I depart from
the list to focus on other relevant conduct.
In considering this evidence, it helps to keep in mind the na-
ture of surface bargaining and the modus operandi of the surface
bargainer. The dark art of surface bargaining follows three guid-
ing principles: (1) Have only as many bargaining sessions as nec-
essary to create the appearance that the surface bargainer is act-
ing in good faith. (2) Make those bargaining sessions as
representation. The Union thus needed to take care, and to discuss the
Respondent’s proposal employee by employee. That takes time.
11 A threat to declare impasse, if effective, would prompt the union
to make a concession and thereby prolong negotiations. That’s not what
the surface bargainer wants.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
unproductive as possible. (3) Blame the other side for being un-
reasonable and preventing agreement and create a “paper trail”
documenting that the other side bore responsibility for the dead-
lock.
In the present case, just one bargaining session took place in
2016 before the Respondent announced it would implement its
wage proposal. As discussed above, at one point 4 days before
implementation, the Respondent told the Union it would not dis-
cuss its wage proposal any further unless the Union made a new
proposal. This maneuver served both the first and third princi-
ples of surface bargaining. It limited the amount of bargaining
and it set the stage to place the blame on the Union.
Stated another way, the third principle of surface bargaining
involves “playing the victim” convincingly. The Respondent’s
May 6, 2016 email to the Union provides a textbook example of
how to do it. At some point in the bargaining, Union President
Goldman apparently made a casual remark to the Respondent’s
lead negotiator, Michael Henry. In frustration at the lack of pro-
gress, Goldman had said something to the effect that she had
“three ideas” for reaching agreement, several times after that,
Henry asked Goldman to disclose those ideas.
In Henry’s May 6, 2016 email to Goldman, he wrote: “despite
my repeated requests, you have failed to clearly identify the three
Ideas you said you had for reaching resolution. Mere willingness
to meet is not enough to break Impasse.” Thus, the email subtly
suggested a connection between impasse and Goldman’s sup-
posed failure to tell Henry her “three ideas” for reaching agree-
ment.
Having implied that Goldman’s supposed failure to “clearly
identify” her “three ideas” contributed to the claimed impasse,
the email hints that the Union’s conduct justifies a refusal to meet
further: “We are clearly at Impasse. The National Labor Rela-
tions Act does not require us to engage In a ‘fruitless marathon’
of negotiations.”
The words “fruitless marathon” carry a bit of irony. Surface
bargaining’s intermediate goal is to render negotiations fruitless
while maintaining the appearance of earnest effort. Only then
can the surface bargainer reach the ultimate goal of a fake but
legitimate-looking impasse.
The Respondent’s negotiators demonstrated particular skill in
applying the second principle of surface bargaining, making the
bargaining sessions unproductive. In a May 5, 2016 email to
Henry, Goldman complained about the Respondent’s negotiat-
ing practice:
The Employer has repeatedly after receiving [the Union’s] pro-
posals, left the room and not returned for the remainder of day.
Our proposals then are answered via email, with nothing but
rejections.
This take-the-proposal-and-run retreat from face-to-face dis-
cussion could reflect an intent to avoid actual bargaining or,
12 As Stokes testified, I observed his demeanor. He had the master
negotiator’s gifts of poise, charm, and the ability to talk at length, even
about the inconsequential or irrelevant. Although I credit his testimony
as to facts, when uncontradicted, I note that sometimes he expressed
opinion with the certitude of fact. For example, he testified that when
the Respondent presented its “last, best and final offer” in March 2015,
the union negotiators expressed confusion, but added “They understood
arguably, it might merely result from the Respondent’s negotia-
tors being painfully shy. However, in my experience, labor law-
yers and labor negotiators are not painfully shy.
The technique of leaving and then rejecting the proposal by
email had the disadvantage of making the bargaining sessions
short. To create the appearance that the parties had bargained
exhaustively, and therefore really were at impasse, the bargain-
ing sessions needed to be plausibly long. The surface bargainer,
therefore, looks for ways to put ice, not sand, under the wheels.
The Respondent employed a remarkably effective way to engage
in back-and-forth talking without accomplishing anything. Pie
charts.
Pie charts would seem to be totally harmless and incapable of
causing much harm, yet, in 2015, when the Respondent brought
in its pie charts, that action threw a figurative smoke bomb into
the negotiations. Billows of confusion clouded the issues and
prompted much discussion which was time-consuming but un-
productive. The pie charts, having little relevance to the terms
of the contract being negotiated, proved to be a masterful distrac-
tion.
Describing the pie charts as a “masterful distraction” might
seem an exaggeration because a pie chart, sitting there on the
table, appears almost totally harmless. Therefore, it should be
noted that the disruptive potential of the pie charts depends on
how they are constructed and used, and on the skill of the nego-
tiator who wields them. In the present case, if using pie charts
were a martial art, the Respondent’s negotiators would be at the
black belt level.
The senior partner in the law firm representing the Respondent
testified at the hearing. Arch Stokes12 described his extensive
experience in negotiations and testified that, for many years, he
has advocated using pie charts in bargaining. He included illus-
trations of pie charts in a 1981 book he wrote about bargaining
in the hotel and restaurant industries.
Perhaps to dispel any notion that it was odd to use pie charts
in labor negotiations, Stokes described how often he had done
exactly that. He pointed out that pie charts were included in a
collective-bargaining agreement which he had negotiated, on the
Respondent’s behalf, with the same Union as in this case. That
negotiation involved a separate bargaining unit of the Respond-
ent’s “textile care” (laundry) employees13 and concluded suc-
cessfully with a contract.
In negotiations with the Union regarding this other bargaining
unit, Stokes had made sure that the contract included, as an at-
tachment, some pie charts. However, when the Union had the
collective-bargaining agreement printed in booklet form to dis-
tribute to shop stewards, it left the pie charts out. Stokes, who
sounded a bit saddened by this exclusion, attributed it to the Un-
ion’s desire to save printing expense.
The omission of the pie charts from the printed contract did
not make the document any less useful because the pie charts
it. They just didn’t like it.” I will consider such testimony to express
Stokes’ opinion rather than as a statement of objective fact.
13 The laundry employees work at a separate location from the Re-
spondent’s hotels and under separate supervision. The employees previ-
ously had been included in the large bargaining unit which figures in this
case but the Respondent filed a unit clarification petition resulting in the
separate bargaining unit.
RICHFIELD HOSPITALITY, INC. 27
were irrelevant. They purported to show the total cost to the Re-
spondent of an employee by adding in expenses not usually con-
sidered wages or benefits. For example, the pie chart included
an amount representing the cost of workers’ compensation insur-
ance. However, such information did not help a shop steward or
employee understand and apply the terms of the agreement.
The pie charts indeed added little if anything of value to the
employees who would read and apply the contract. The charts
did not provide any information helpful to understanding or ap-
plying the contract.
Similarly, in the bargaining relevant here, the pie charts did
not add much if any information relevant to the terms being ne-
gotiated. As already noted, the Respondent could use the pie
chart to illustrate that the wages and benefits under negotiation
did not represent the total expense of keeping an employee on
the payroll. But apart from making this point about the total ex-
penses associated with each employee, the pie chart contributed
nothing to the bargaining except confusion.
If the Respondent only had used the pie charts to illustrate a
point, that the Respondent paid more for each employee hour
worked than was apparent from the paycheck stub, they likely
would not have caused much confusion. However, the Respond-
ent touted the pie charts as useful for another purpose, namely,
answering a union negotiator’s question about the Respondent’s
wage proposal. The pie charts were so obviously ill-suited for
this purpose I conclude that the Respondent’s negotiators in-
tended the harm the pie charts wrought.
As discussed above, the Respondent gave the Union a wage
proposal in a form rarely, if ever, seen in collective-bargaining
agreements. Instead of grouping employees into categories
based on seniority or job function, the Respondent’s proposal
listed more than 400 employees by name and proposed for each
the wage rate that employee would receive in each year of the
contract.
Trying to discern patterns in this mass of data would be a
daunting task, if possible at all. The Union negotiators therefore
sought a simplification. They asked about “floor and ceiling
wage rates.” The Respondent said, in effect, “Your answer is in
these pie charts.” Judge Steckler’s decision summarized the dis-
cussion as follows:
The first proposal was confusing—it did not identify by job,
job longevity, but identified each individual and a proposed pay
rate. For current employees, proposed Appendix A was not by
property either. Richfield seized upon Goff’s request for clari-
fication of the “top and bottom” to present a more confusing
answer—even more pie charts. Pie charts are not a floor and
ceiling answer. Instead of clarifying or simplifying the re-
sponse, Richfield heaped more pie charts upon the Union and
further muddied the negotiating waters.
Judge Steckler and I reach the same conclusion even though
we use different metaphors. Instead of stating that the Respond-
ent “further muddied the negotiating waters,” I would return to
the smoke bomb analogy, above, and conclude that the
14 Stokes effectiveness in sowing confusion may be heightened by his
amiable and disarming manner. However, based on my observations of
Stokes while he testified, I conclude the cheerful, harmless and slightly
Respondent blew more smoke. But however described, the Re-
spondent’s conduct is not consistent with bargaining in good
faith.
The Respondent created the pie charts and understood what
information the pie charts contained. The Respondent certainly
must have recognized that using the pie charts to answer the Un-
ion’s request for clarification would be both disingenuous and
detrimental.
Considering the expertise of the Respondent’s negotiators, it
seems highly unlikely that they would misunderstand what the
Union was requesting, a concise explanation of the parameters
of the Respondent’s wage proposal. Likewise, there is no reason
to conclude that Respondent’s negotiators would believe that
giving the Union more than 400 pie charts would provide the
simple, succinct summary the Union sought.
The Respondent’s negotiators were not amateurs but highly
experienced professionals. Attorney Stokes had been advocating
the use of pie charts foe 3-1/2 decades, ever since he included
such charts in his book on collective bargaining. From his ex-
tensive experience with pie charts, and from his role producing
the pie charts used by the Respondent, he would have known that
they did not provide the clarification requested by the Union.
Yet, the Respondent proffered them away.14
The Union negotiators soon developed an antipathy to the pie
charts, which they perceived as inaccurate and unfair. For ex-
ample, some of the charts figured in funeral leave as part of an
employee’s total compensation even though the employee had
not attended any funeral.
The errors in the pie charts focused the union negotiators’ at-
tention on them. The Respondent urged the Union to distribute
the pie charts to employees and to have employees go over the
charts, looking for errors which would be corrected. Urging the
Union and employees to look for mistakes certainly created the
appearance that the Respondent was being fair and acting in
good faith, but all the time focused on the charts was time not
devoted to the real issues to be resolved at the bargaining table.
This pie chart distraction thus served the second principle of
surface bargaining by making the time spent in negotiations as
unproductive as possible. The surface bargainer then can point
to the total length of the negotiations and say, “After all this time,
we still cannot reach agreement. We’re definitely at impasse.”
To summarize, in 2015, the Respondent gave the Union a
wage proposal which, if agreed to, likely would have caused dis-
sension among bargaining unit employees, would have caused
many employees to become hostile to the Union, and which
might well have resulted in unfair labor practice charges alleging
that the Union had breached its duty of fair representation. It
was also possible, although probably unlikely, that it the Union
had agreed to the proposal, it might have resulted in a lawsuit
against the Union.
Additionally, this unpalatable proposal was complicated.
When the Union asked for clarification, the Respondent gave the
Union pie charts which caused confusion rather than clarifica-
tion. The Respondent’s experienced negotiators knew, or
doddering character he played was a role, and one he likely had practiced
for some time. Behind the persona was a mind so brilliant it could even
weaponize a pie chart.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
certainly should have known, that discussing the pie charts
would take time away from negotiating a collective-bargaining
agreement.
The Respondent’s bargaining style also minimized the oppor-
tunity for productive, face-to-face discussion. Upon receiving a
Union proposal, the Respondent’s negotiators would save it for
later discussion with management officials and then one of the
Respondent’s negotiators would notify the Union by email that
it rejected the proposal.
After only one bargaining session in 2016, the Respondent an-
nounced that the parties were at impasse and that it intended to
implement portions of its wage offer. When the Union requested
bargaining, the Respondent refused to discuss the proposal it was
about to implement unilaterally unless the Union first made a
new counterproposal. Conditioning further discussion on the Un-
ion first submitting a new counterproposal deprived the Union of
the opportunity to meet and confer with the Respondent and
thereby obtain the information needed to draft a counterproposal.
Respondent then implemented portions of its proposal unilat-
erally. As proves true in many other surface bargaining cases,
the employer’s haste to implement provided the most telling
clue. In early May, the Union had asked the Respondent to meet
to discuss the proposal, but the Respondent denied the request by
placing an onerous condition on it, the requirement that the Un-
ion first had to submit a new proposal.
If the Respondent had merely been engaged in “hard bargain-
ing,” characterized by a sincere intent to reach agreement, albeit
on favorable terms, the Respondent would have granted the Un-
ion’s request for a meeting. After all, the hard bargainer really
wants a contract, and an agreement can be obtained only through
bargaining. By conditioning a discussion on the Union meeting
an unreasonable precondition, the Respondent revealed that it
was not a hard bargainer wanting to reach agreement but a sur-
face bargainer intent on preventing one.
In reaching these conclusions, I rely in part on the factual find-
ings in Judge Steckler’s decision. However, it is not necessary
for me to rely on her legal conclusions, which Respondent has
appealed, to find an intent to engage in surface bargaining.
The clue which reveals the Respondent’s intent is what its ne-
gotiators actually did, not a later conclusion about the lawfulness
of that conduct. The Respondent’s actions fit the signature pat-
tern of surface bargaining and make sense only if the Respondent
intended to frustrate bargaining, declare impasse and implement
its proposal unilaterally.
Accordingly, I conclude that the Respondent, since on or be-
fore February 2016, has engaged in surface bargaining with a
fixed intent not to reach agreement. Further, I conclude that the
Respondent thereby violated Section 8(a)(5) and (1) of the Act,
as alleged in complaint paragraph 21.
Complaint Paragraph 19(a)
Complaint paragraph 19(a) alleges that about May 12, 2016,
Respondent unilaterally, and without agreement of the Union,
implemented portions of its March 24, 2015, “last, best, and fi-
nal” offer. Answering, the Respondent stated:
Denied. The partial implementation referred to in this para-
graph of the complaint took place on May 16, consistent with
the notice provided by the company.
The evidence supports the admission in the Respondent’s An-
swer. I find that the unilateral implantation took place on May
16, 2016.
Complaint Paragraph 19(b)
Complaint paragraph 19(b) alleges that about July 7, 2016,
Respondent unilaterally, and without agreement of the Union,
implemented other portions of its March 24, 2015 “last, best, and
final; offer” as modified during bargaining on June 7, 2016. The
Respondent answered:
Admitted that implementation was unilateral, as the parties, de-
spite the company’s good faith bargaining, were unable to
reach agreement.
Based on the Respondent’s admission, I find that on about
July 7, 2016, it unilaterally, and without the Union’s agreement,
implemented other portions of its March 24, 2015 “last, best and
final offer.”
Complaint Paragraph 19(c)
Complaint paragraph 19(c) alleges that the provisions which
the Respondent implemented, as described in complaint para-
graphs 19(a) and (b), constituted mandatory subjects of bargain-
ing. The Respondent’s Answer does not address the issue raised
in complaint paragraph 19(c) but instead admits that the imple-
mentation was unilateral.
However, the record establishes without contradiction that the
provisions of the Respondent’s “last, best and final offer” which
the Respondent implemented on May 16, 2016 and on about July
7, 2016, related to wages, hours or other terms and conditions of
employment and constituted mandatory subjects of bargaining.
I so find.
Complaint Paragraph 19(d)
Complaint paragraph 19(d) alleges that the Respondent en-
gaged in the unilateral implementations described in complaint
paragraphs 19(a) and (b) without first bargaining with the Union
in good faith. The Respondent denies this allegation.
For the reasons stated above in connection with complaint par-
agraph 18, I have concluded that since on or before February
2016, the Respondent has engaged in surface bargaining. That
is, it went through the motions of bargaining while having a fixed
intent not to reach agreement. Further, I have found that the Re-
spondent took actions to undermine the bargaining process to
prevent agreement from being reached. Thus, I have concluded
that since on or before February 2016, the Respondent has not
bargained in good faith with the Union. Moreover, it has not
remedied this or other unfair labor practices found in this case
and in Judge Steckler’s earlier decision.
Accordingly, I conclude that the government has proven the
allegation raised by Complaint paragraph 19(d).
Complaint Paragraph 19(e)
Complaint paragraph 19(e) alleges that the Respondent made
the unilateral changes described in Complaint paragraphs 19(a)
and 19(b) without providing the Union with health insurance cost
information requested by the Union in April 2015.
This paragraph alludes to a violation found by Judge Steckler
RICHFIELD HOSPITALITY, INC. 29
and described in her decision. In March 2015, the Union had
requested information pertaining to the cost of health insurance.
On April 4, 2015, the Union again requested some information
regarding health insurance costs. The Respondent furnished the
Union with information that same day. However, the Union was
not satisfied with the information because it pertained to both
bargaining unit employees and to those outside the unit.
The Union then requested information concerning health in-
surance costs for employees in the bargaining unit but excluding
those outside it. Judge Steckler found that the Respondent had
never furnished the Union with this information and concluded
that the Respondent thereby violated Section 8(a)(5).
The Respondent emphatically disputes Judge Steckler’s find-
ing and has appealed to the Board. The Respondent’s Answer to
this allegation states:
Denied. As the evidence showed in the first ALJ trial, the com-
pany provided the requested information. ALJ Steckler’s rec-
ommended decision to the contrary is in error.
The General Counsel has urged that the doctrine of collateral
estoppel applies, precluding me from making new findings and
conclusions regarding the matters Judge Steckler decided. For
reasons discussed below, I have concluded that collateral estop-
pel does not apply because Judge Steckler’s decision is not a fi-
nal decision.
Nonetheless, as a practical matter, I accept Judge Steckler’s
findings and conclusions and will neither revisit nor second-
guess them. The Board vested in her the responsibility to decide
these matters and I have neither the authority nor the desire to
unsettle matters she decided almost a year ago.
Without doubt, the Board has authority to have one judge de-
cide de novo some factual or legal issues already decided by an-
other judge. That happens on those quite rare occasions when
the Board decides to remand a case to a judge other than the one
who initially heard it. However, in those unusual instances the
Board issues an order specifying that the matter will be heard on
remand by another judge. Absent such an explicit conferral of
jurisdiction, a judge has no authority either to revisit or undo the
holdings of another of the Board’s judges.
The governing principle here concerns lack of authority rather
than the doctrine of collateral estoppel but the sane outcome re-
sults. The Board has not yet ruled on the Respondent’s appeal.
Absent a holding on appeal which overturns a part of Judge
Steckler’s decision, all parts of that decision will be respected
here.
Based on the holding in Judge Steckler’s decision that the Re-
spondent failed to furnish the Union with the requested infor-
mation about health insurance and noting the absence of evi-
dence indicating that the Respondent has provided this infor-
mation, I find that it did not.
Therefore, I further conclude that the General Counsel has
proven the allegation raised in complaint paragraph 19(e).
Complaint Paragraph 19(f)
Complaint paragraph 19(f) alleges that the Respondent made
the unilateral changes described in complaint paragraphs 19(a)
and (b) without first remedying the unfair labor practices alleged
in the complaint and amended complaint and as found by Judge
Steckler. The Respondent answered as follows:
Denied. ALJ Steckler’s recommended decision, related to the
referenced unfair labor practices, is in error. Further, without
waiving the preceding sentence, the company continued nego-
tiations with the union following the time of the hearing held
before ALJ Steckler.
For the reasons stated above, the holdings in Judge Steckler’s
decision, including the conclusions that the Respondent commit-
ted certain unfair labor practices, will be fully respected here.
The present record does not indicate that the Respondent reme-
died any of the unfair labor practices found by Judge Steckler
and I conclude it did not.
The Respondent’s answer avers that it “continued negotiations
with the union following the time of the hearing held before ALJ
Steckler.” However, the Respondent’s assertion that it “contin-
ued negotiations” falls short of stating that the Respondent bar-
gained in good faith. For reasons discussed above, I have con-
cluded that its “continued negotiations” consisted of unlawful
surface bargaining.
Therefore, I conclude that the government has proven the al-
legations raised by complaint paragraph 19(f).
Complaint Paragraph 19(g)
Complaint paragraph 19(g) alleges that Respondent made the
unilateral changes described in Complaint paragraphs 19(a) and
(b) without having exhausted the collective-bargaining process
and without having reached a bona fide impasse in negotiations.
The Respondent has denied this allegation.
Absent a valid impasse, the Respondent violated the Act by
implementing portions of its final offer unilaterally. The burden
of demonstrating the existence of impasse rests on the party
claiming impasse, in this instance, the Respondent. Ead Motors
Eastern Air Devices, Inc., 346 NLRB 1060 (2006).
The Board has defined impasse as that point in the negotia-
tions when the parties are warranted in assuming that further bar-
gaining would be futile. ACF Industries, LLC, 347 NLRB 1040
(2006), citing A.M.F. Bowling Co., 314 NLRB 969, 978 (1994),
enf. denied 63 F.3d 1293 (4th Cir. 1995), citing Pillowtex Corp.,
241 NLRB 40, 46 (1979).
Stated another way, impasse occurs “after good-faith negotia-
tions have exhausted the prospects of concluding an agreement.”
ServiceNet, Inc., 340 NLRB 1245 (2003), citing McAllister
Bros., Inc., 312 NLRB 1121, 1122 (1993). Thus, in labor rela-
tions law, the concept of impasse is prescriptive rather than de-
scriptive. It doesn’t simply serve as a synonym for “unable to
agree” but rather defines the conditions necessary for an em-
ployer lawfully to do an otherwise forbidden act, making a ma-
terial, significant and substantial change in terms and conditions
of employment without first obtaining the agreement of the ex-
clusive bargaining representative.
In determining whether a good-faith impasse has been
reached, the Board can consider whether “the purported impasse
is reached in the context of serious unremedied unfair labor prac-
tices that affect the negotiations.” Great Southern Fire Protec-
tion, Inc., 325 NLRB 9 fn. 1 (1997). Not all unremedied unfair
labor practices give rise to the conclusion that an impasse was
not a valid one. Only those unfair labor practices that contributed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
to the parties’ inability to reach an agreement can preclude a
finding of valid impasse. Lafayette Grinding Corp., 337 NLRB
832 (2002).
The Respondent’s brief makes a similar point. Citing Dyna-
tron/Bondo Corp., 333 NLRB 750 (2001), and Alwin Mfg. Co.,
326 NLRB 646, 688 (1998), enfd. 192 F.3d 133 (D.C. Cir. 1999),
it notes that only serious, unremedied unfair labor practice that
affect the negotiations will make the claimed impasse invalid.
The Respondent’s continuing denial that it committed the unfair
labor practices found by Judge Steckler, and its appeal of her de-
cision, do not preclude it from arguing, alternatively, that such
unfair labor practices did not have a significant effect on the ne-
gotiations.
Were I to reach this issue, I would conclude that some of the
unfair labor practices found by Judge Steckler did affect bargain-
ing. Specifically, I find that Respondent’s bad faith at the bar-
gaining table, when it “further muddied the negotiating waters”
with the confusing pie charts, did indeed make it more difficult
for the parties to reach agreement. Indeed, I specifically find that
the Respondent intended to undermine the bargaining process
and prevent agreement.
However, I need not consider the effect of the unfair labor
practices found by Judge Steckler because the General Counsel
has alleged and proven that, from February 2016 on, the Re-
spondent engaged in surface bargaining. The entire point of sur-
face bargaining is to have an effect—a negative effect—on the
negotiations. Only a totally inept negotiator could attempt to en-
gage in surface bargaining and yet bungle the unfair labor prac-
tice so badly that the negotiations escaped unharmed; the bad
faith was not so feckless here.
For reasons discussed above, I have found that since at least
February 2016, the Respondent consistently has bargained with
a fixed intent not to reach agreement. Indeed, to create the ap-
pearance of an impasse which would allow it to impose its terms
unilaterally, the Respondent refused even to discuss its wage
proposal with the Union unless the Union first made a proposal.
Yet the Respondent’s proposal was so complex, and had so many
possible ramifications, the Union could hardly make a meaning-
ful counterproposal without first having the discussions which
the Respondent refused.
The Respondent makes some assertions in its brief which need
to be discussed. It disagrees with Judge Steckler’s description of
its wage proposal and denies that the proposal stymied the nego-
tiations:
It cannot be stated or held that the making of this offer in any
way tainted or barred the impasse and implementation.
Nothing in the Act, to my knowledge, prevents an employer
from making a wage proposal which lists more than 400 bargain-
ing unit employees individually along with the wage rates each
employee would receive during each year of the contract. How-
ever, such a proposal places a union in a very awkward position
because it represents all employees in the bargaining unit and
should not play favorites. To assure that such a proposal treats
all similarly situated employees equally, and that it doesn’t dis-
criminate invidiously against any protected class, the Union must
engage in extensive discussions with the Respondent.
When an employer makes a proposal which foreseeably
requires greater than usual bargaining, its willingness to engage
in such marathon discussions indicates good faith. A lack of
such willingness indicates the opposite.
Likewise, when an employer tenders to the Union a foreseea-
bly complex proposal, the efforts it makes to help the Union ne-
gotiators understand the proposal provide an indication of the
Respondent’s good or bad faith. Instead of helping the union
negotiators to understand its wage proposal, the Respondent con-
fused them, and wasted negotiating time, by giving the Union pie
charts containing information irrelevant to the Union’s inquiry.
Based upon my examination of the Respondent’ actions and my
observations of the witnesses, I conclude that the Respondent did
so deliberately, intending to frustrate the bargaining process.
The Respondent attempts to characterize the failure to reach
agreement as simply a disagreement over the bottom line figure,
over how much money the Respondent was willing to pay for
wages and benefits. The Respondent also argues that the agree-
ment it reached with the same Union concerning a separate bar-
gaining unit of employees demonstrates that it was acting in
good faith. The Respondent’s Brief states:
Further, the “deadlock” that resulted was due directly, and
overwhelmingly, to the Union’s unwillingness to agree to the
Company’s wage proposal—particularly with respect to ban-
quet compensation. Plain evidence of this lies in the fact that
these same two parties were able to reach agreement in the Tex-
tile Care Services bargaining. The Agreement reached there did
not have the same roadblock—a major change in compensa-
tion—as was at issue in the hotels-unit bargaining.
However, it cannot simply be assumed that because someone
acted lawfully in one instance it would always act lawfully. Ad-
ditionally, from the present record it would be difficult to deter-
mine whether the Respondent engaged in the same confusion-
causing tactics during bargaining with the Union concerning the
other unit. The record only proves that the Respondent used con-
fusion-producing tactics in the present case. That is enough.
The Respondent argues that the parties simply deadlocked be-
cause it wanted economic concessions, including substantially
lower wage rates for the banquet employees. According to the
Respondent, the Union could not bring itself to make such a con-
cession. The Respondent’s brief states:
Here, after telling the Union in 2014 that it needed labor-cost
relief, and after bargaining in good faith over eight sessions in
2015——again, there was no surface-bargaining allegation—
the Company was within its rights to stand firm, provided it
gave the Union a reasonable opportunity to negotiate.
The problem with this argument is simply that the Respondent
did not give the Union reasonable opportunity to negotiate.
Quite the opposite. It refused to discuss the wage issue further
unless the Union made a concession. Its haste to implement its
proposal unilaterally caused it to take a shortcut, refusing to dis-
cuss the issue and proceeding to unilateral implementation un-
less the Union immediately offered another proposal.
Any employer truly wishing to reach agreement would have
taken time to meet and confer with the Union. However, an em-
ployer following a scheme to thwart bargaining and implement
unilaterally on a certain date will not let an opportunity to meet—
RICHFIELD HOSPITALITY, INC. 31
and perhaps make progress towards agreement—interfere with
his timetable. Neither perdition nor flood, let alone the legal duty
to bargain in good faith, will nudge the surface bargainer off his
schedule. He already has made up his mind.
After claiming to have given the Union a reasonable oppor-
tunity to bargain, the Respondent’s brief continues:
… as is well established in Board law, as stated by the Supreme
Court, that an employer is not obligated, to engage in fruitless
marathon discussions at the expense of frank statement and
support of his position. And it is equally clear that the Board
may not, either directly or indirectly, compel concessions or
otherwise sit in judgment upon the substantive terms of collec-
tive bargaining agreements.
NLRB v American National Insurance, 343 U.S. 395, 404
(1952).
The Respondent’s argument that it is not required to engage
in fruitless bargaining ignores a long-established principle: The
law does not allow a wrongdoer to reap the benefit of his own
wrongdoing. Someone who burns down his house does not get
to collect the insurance money, and a company that sets out to
make bargaining unproductive cannot credibly say, “I won’t go
back, they never get anything done.”
With respect to the Respondent’s reference to the limits of the
Board’s authority to judge the substance of proposals, no pro-
posal of the Respondent is on trial here. This case is about Re-
spondent’s intent as revealed by its negotiators’ conduct. Seeing
in their behavior the constellation of actions characteristic of sur-
face bargaining, and finding no other credible explanation for
such conduct in the record, I have concluded that at least since
February 2016, the Respondent has bargained with a fixed intent
not to reach agreement.
According, I further find that the Respondent, unilaterally and
without the Union’s consent, implemented its proposals, as de-
scribed in complaint paragraphs 19(a) and (b), at a time when no
valid impasse existed. Further, I conclude that the Respondent
thereby violated Section 8(a)(5) and (1) of the Act, as alleged in
complaint paragraph 21.
Collateral Estoppel
As discussed above, this is the second case focusing on the
Respondent’s bargaining with the Union. The first case con-
cerned allegations that the Respondent had committed unfair la-
bor practices in 2015. Judge Steckler conducted the hearing in
that case in December 2015 and issued a decision on May 27,
2016.1615
The present complaint alleges that the Respondent committed
unfair labor practices in 2016, including implementing parts of
its wage proposal without the Union’s agreement, at a time when
the existence of unremedied prior unfair labor practices pre-
vented a valid impasse. Judge Steckler had found that the Re-
spondent had committed certain unfair labor practices in 2015
and the General Counsel wants to use those findings in this case
to establish that unremedied unfair labor practices prevented a
valid impasse.
15 Richfield Hospitality, Inc. As Managing Agent For Kahler Hotels,
LLC, Case 18–CA–151245 (JD-45-16).
To that end, the General Counsel has made reference to Judge
Steckler’s findings in the present Complaint. The General Coun-
sel also seeks to invoke the doctrine of collateral estoppel to pre-
clude relitigation of the issues decided by Judge Steckler.
However, the precise legal definition of collateral estoppel
makes issue preclusion inappropriate here. The doctrine provides
that when an issue of fact or law is actually litigated and deter-
mined by a valid and final judgment, and the determination is
essential to the judgment, the determination is conclusive in a
subsequent action between the parties, whether on the same or a
different claim. NLRB v. Yellow Freight Systems, Inc., 930 F.2d
316 (3d Cir. 1991), citing the Restatement (Second) of Judg-
ments Sec. 2 (1982).
At this point, however, Judge Steckler’s decision is not final.
It is pending, on appeal, before the Board. Accordingly, I con-
clude that it does not now qualify as a “final judgment” within
the meaning of the collateral estoppel doctrine.
Although, technically, the doctrine of collateral estoppel does
not apply, for the reasons discussed above in connection with
Complaint paragraph 19(e), I will not relitigate the issues de-
cided by Judge Steckler. The most fundamental reason is simply
that the Board has not authorized me to consider de novo the
evidence before her and reach independent conclusions, Had the
Board wanted me to take such an extraordinary action, it would
have said so specifically, in an order authorizing me to proceed.
It has not done so.
Additionally, I would not presume to second guess Judge
Steckler’s decision because she observed the witnesses as they
testified about matters relevant to that case. Not all witnesses
who testified before Judge Steckler gave testimony in the present
case. Only Judge Steckler heard all the testimony relevant to that
case. Accordingly, I rely fully on Judge Steckler’s findings and
conclusions.
Summary of Findings
The following table summarizes the unfair labor practice find-
ings and conclusions discussed above:
Complaint
Paragraph Allegation Finding
6(a) 8(a)(1) threat No merit
6(b) 8(a)(1) threat No merit
6(c) 8(a)(1) threat Merit
18 8(a)(5)surface
bargaining Merit
19(a) 8(a)(5)unilateral
change Merit
19(b) 8(a)(5)unilateral
change Merit
REMEDY
Having found that the Respondent violated the Act, I recom-
mend that the Board order the Respondent to remedy these vio-
lations fully. The remedy includes posting the notice to employ-
ees attached hereto as Appendix.
The Respondent unlawfully implemented portions of its final
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
proposal, changing the wage rates for bargaining unit employees.
In many instances, these changes reduced an employee’s com-
pensation. Respondent must make the affected employees
whole, with interest, for all losses they suffered because of the
Respondent’s unlawful action.
In the complaint, the General Counsel sought a remedy in ad-
dition to those routinely ordered. The complaint stated:
WHEREFORE, as part of the remedy for the unfair labor prac-
tices alleged above, the General Counsel seeks an Order requir-
ing that Respondent’s Area Managing Director Bill Dwyer
read the notice to employees at meetings attended by employ-
ees on employee work time, with the meetings scheduled to
ensure the widest possible attendance across all four hotel prop-
erties, shifts, and departments to the employees, in the presence
of Respondent’s supervisors and agents identified above in par-
agraph 4 who are still in Respondent’s employ at the time of
the reading. Alternatively, the General Counsel seeks an order
requiring that Respondent promptly have a Board agent read
the notice to employees employed in the bargaining unit during
the employees’ work time, in the presence of Respondent’s su-
pervisors and agents identified above in Paragraph 4 who are
still in Respondent’s employ at the time of the reading, at meet-
ings scheduled to ensure the widest possible attendance across
all four hotel properties, shifts, and departments.
In agreement with the General Counsel, I believe that the cus-
tomary notice posting would not be sufficient to remedy the vi-
olations found herein. The Respondent had acquired the hotels
at which the bargaining unit employees work during the term of
the Union’s collective-bargaining agreement with the predeces-
sor employer. The Respondent assumed that contract. However,
the violations found in this case and those found by Judge Steck-
ler in the earlier case took place as the Respondent and the Union
bargained for the first time for a full new agreement.
The Respondent’s unfair labor practices thus come essentially
at the start of the Respondent’s long-term relationship with the
bargaining unit employees and their Union. First impressions
tend to be lasting impressions. The employees have seen the Re-
spondent unilaterally change their compensation and otherwise
demonstrate little respect for either their Union or the law itself.
The intimidating effect of this conduct cannot be dispelled
simply by posting a notice alongside various other notices re-
quired by government agencies.
Ordering the notice to be read aloud by one of Respondent’s
managers, or alternatively having the notice read by a Board
agent in the presence of Respondent’s management, would as-
sure that the employees are aware that the law protects them
when they exercise rights under Section 7 of the Act.
Surface bargaining is a particularly egregious violation be-
cause the surface bargainer is trying to subvert the system of col-
lective bargaining which Congress enacted. It likewise is an at-
tempt to avoid the duty to bargain in good faith which the Act
imposes. Moreover, the surface bargainer attempts to achieve
these ends by deception, pretending to be trying to reach agree-
ment while actually doing the opposite. The Respondent must
notify the employees clearly that from now on it will obey the
law and that it will remedy any harm resulting from its unlawful
acts.
In the Complaint language quoted above, the General Counsel
sought an order requiring Manager Dwyer to read the notice.
However, I infer from Attorney Stokes’ testimony that Dwyer no
longer is employed by the Respondent. Having the notice read
by a manager of equal rank, or by a Board agent in the presence
of such a manager, should suffice.
With respect to the meetings at which the notice is read to em-
ployees, the General Counsel seeks an order requiring these
meetings to be scheduled at the times when most employees can
attend. Although I agree that the meetings should be scheduled
so as to maximize the opportunity for employees to attend, I do
not believe that alone will suffice. Almost invariably, some em-
ployees will be unable to attend the meeting because of sickness,
vacation or to attend to some other duty such as a school confer-
ence or court date.
Accordingly, to assure that employees will be able to hear the
notice being read, I recommend that the Board order the Re-
spondent to permit the Union to bring a camcorder to the meeting
and record the notice being read. The Union then could assure
that employees not present at the meeting could view the record-
ing by distributing copies of the recording to Union officers and
shop stewards and/or by posting the recording on a video sharing
website such as YouTube.
This remedy imposes no additional cost on the Respondent.
The Union would bear the expense of recording, and only if it
chose to make such a recording.
The General Counsel, in an amendment to the Complaint, re-
quested a further remedy. The General Counsel seeks an order
requiring Respondent to pay to the Union all of its bargaining
expenses during the period of time from February 25, 2016 until
such time as Respondent begins bargaining in good faith, upon
submission by the Union of a verified statement of costs and ex-
penses.
In Visiting Nurse Services of Western Massachusetts, Inc., 325
NLRB 1125 (1998), the Board stated that an order requiring a
respondent to reimburse a charging party for negotiation ex-
penses will be warranted in cases of unusually aggravated mis-
conduct, where it may fairly be said that a respondent’s substan-
tial unfair labor practices have infected the core of the bargaining
process to such an extent that their effects cannot be eliminated
by the application of traditional remedies. In that case, which
did not involve an allegation of surface bargaining, the Board
denied the requested reimbursement remedy, stating:
The record fails to establish that an award of negotiating costs
to the Union is warranted. The record does not show that the
Respondent has engaged in flagrant, egregious, deliberate, per-
vasive bad-faith conduct aimed at frustrating the bargaining
process or causing the Union to waste its resources in a futile
effort to bargain for an agreement that the Respondent never
intended to reach. Nor does the record show that the bargaining
between the parties was merely a charade.
However, in the present case, the Respondent did engage in
surface bargaining. It did engage in “conduct aimed at frustrat-
ing the bargaining process” and did cause the Union to waste its
resources in a futile effort to bargain. In these circumstances, I
believe that the reimbursement order sought by the General
Counsel is warranted and recommend that the Board impose it.
RICHFIELD HOSPITALITY, INC. 33
CONCLUSIONS OF LAW
1. The Respondent, Richfield Hospitality, Inc., as managing
agent For Kahler Hotels, LLC, is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party, UNITE HERE International Union
Local 21, is a labor organization within the meaning of Section
2(5) of the Act.
3. At all material times, the Charging Party has been and is
the exclusive bargaining representative, pursuant to Section 9(a)
of the Act, of the following unit of the Respondent’s employees,
which constitutes an appropriate bargaining unit within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time employees employed in the
job classifications and at the hotels listed in Appendix A of the
most recent collective-bargaining agreement, which is effec-
tive by its terms from October 1, 2011 through August 31,
2014, between the Union and Sunstone Hotel Properties, Inc.,
as agent for The Kahler Grand Hotel, Rochester Marriott Mayo
Clinic Area Hotel, and Kahler Inn & Suites; and all full-time
and regular part-time employees employed in the job classifi-
cations listed in the Memorandum of Agreement, which is ef-
fective beginning on May 4, 2012, between the Union and Sun-
stone Hotel Properties, Inc., as agent for Residence Inn Roch-
ester Mayo Clinic Hotel; excluding all other employees, guards
and supervisors as defined in the Act.
4. At all material times, the Respondent has recognized the
Charging Party as the exclusive bargaining representative of the
employees in the unit described in paragraph 3, above.
5. Respondent violated Section 8(a)(1) of the Act by threat-
ening employees that union representation was futile.
6. Respondent violated Section 8(a)(1) and (5) of the Act by
the following conduct: (1) engaging in surface bargaining by
endeavoring to create the impression of bargaining in good faith,
while having a fixed intent not to reach agreement and while tak-
ing various actions to avoid reaching agreement. (2) unilaterally
implementing portions of its wage proposal, over the Charging
Party’s objection and without the Charging Party’s consent, at a
time when no valid impasse existed.
7. Respondent did not violate the Act in any other manner
alleged in the Complaint.
On these findings of fact and conclusions of law and on the
entire record in this case, I issue the following recommended16
ORDER
The Respondent, Richfield Hospitality, Inc., as managing
agent For Kahler Hotels, LLC, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Threatening employees that Union representation is futile.
(b) Engaging in surface bargaining by endeavoring to create
16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, these findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board, and all objections to them shall be deemed waived for all pur-
poses.
the appearance of bargaining in good faith while taking actions
to thwart the bargaining process and avoid reaching agreement.
(c) Unilaterally changing compensation or making any other
material, substantial and significant change in wages, hours or
other terms or conditions of employment of any employee in the
bargaining unit represented by the Charging Party, without first
notifying and bargaining with the Charging Party concerning the
proposed change and its effects. and without first obtaining the
Charging Party’s agreement, except when the parties have en-
gaged in bargaining and reached a lawful and valid impasse.
(d) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choos-
ing, or to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Rescind the unilateral changes in compensation of bar-
gaining unit employees, described in paragraphs 19(a) and (b) of
the complaint, and, for each employee who wage rate decreased
because of the changes, restore that employee’s wage rate as it
existed before the changes.
(b) For all bargaining unit employees whose wage rates or
compensation were reduced by the changes described in para-
graphs 19(a) and 19(b) of the complaint, make those employees
whole, with interest, for all losses suffered because of the unlaw-
ful changes. The make-whole relief shall be computed in ac-
cordance with Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), 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 Ken-
tucky River Medical Center, 356 NLRB 6 (2010).
(c) The Respondent shall compensate the Charging Party for
all bargaining expenses the Union has incurred or will incur dur-
ing a period beginning February 25, 2016 and continuing until
the Respondent begins bargaining in good faith Upon receipt of
a verified statement of costs and expenses from the Charging
Party, the Respondent promptly shall submit a reimbursement
payment, in the amount of those costs and expenses, to the com-
pliance officer for Region 18 of the National Labor Relations
Board, who will document receipt and forward the payment to
the Charging Party.
(d) Within 14 days after service by the Region, post at its fa-
cilities in Rochester, Minnesota, copies of the attached notice
marked “Appendix.”17 Copies of the notice, on forms provided
by the Regional Director for Region 18, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
17 If this Order is enforced by a judgment of the United States Court
of Appeals, the words in the notice reading POSTED BY ORDER OF
THE NATIONAL LABOR RELATIONS BOARD shall read POSTED
PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT
OF APPEALS ENFORCING AN ORDER OF THE NATIONAL
LABOR RELATIONS BOARD.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In ad-
dition to physical posting of paper notices, noticed shall be dis-
tributed electronically, such as by email, posting on an intranet
or internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means. J.
Picini Flooring, 356 NLRB 11 (2010). In the event that, during
the pendency of these proceedings, the Respondent has gone out
of business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since February 25,
2016. Excel Container, Inc., 325 NLRB 17 (1997).
(e) In addition to posting the notices in the manner described
above in paragraph 2(q), the Respondent shall schedule em-
ployee meetings at each of its Rochester, Minnesota facilities at
which bargaining unit employees work. These meetings shall be
during the working time of the bargaining unit employees and
the Respondent shall compensate them at their regular rate for
the time spent attending. At each such meeting, one of the Re-
spondent’s management officials holding the rank of area man-
aging director or higher shall read aloud the Notice to Employees
attached hereto as Appendix A. Alternatively, at the Respond-
ent’s option, an agent of the National Labor Relations Board
shall read the Notice while a management official holding the
rank of area managing director or higher is present. The Re-
spondent shall arrange for all supervisors normally on duty at the
facility at that time to be present at the meeting. The Respondent
also shall permit representatives of the Charging Party to attend
each such meeting and, with camcorder or other audio-visual de-
vice, record the reading of the notice.
(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 Regional Director attesting to the steps
that the Respondent has taken to comply.
Dated, Washington, D.C. May 4, 2017.
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 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 interfere with, restrain, or coerce our employees
in the exercise of these rights, guaranteed to them by Section 7
of the National Labor Relations Act.
WE WILL NOT threaten employees by telling them that Union
representation is futile.
WE WILL NOT engage in surface bargaining by creating the ap-
pearance we are bargaining in good faith while taking actions to
prevent reaching agreement.
WE WILL NOT change employees’ wage rates or other terms
and conditions of employment without first notifying the Union
and affording it opportunity to bargain over the decision and its
effects and WE WILL NOT implement such change unless the Un-
ion agrees or unless the parties bargain in good faith until reach-
ing a valid impasse.
WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL bargain in good faith with the Union, UNITE HERE
International Union Local 21, the exclusive representative of our
bargaining unit employees.
WE WILL restore all employees adversely affected by our un-
lawful unilateral changes to the wage rates they previously en-
joyed.
WE WILL make all employees adversely affected by our un-
lawful unilateral changes whole, with interest, for all losses they
suffered because of those unlawful changes.
RICHFIELD HOSPITALITY, INC.AS MANAGING
AGENT FORKAHLER HOTELS, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/18–CA–176369 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.