UNITE HERE Local 1 (The Ritz-Carlton Chicago)

National Labor Relations Board - Administrative Judge Opinions

Nov 29, 2011

13-CB-019622 (N.L.R.B. Nov. 29, 2011)

JD–68-11
Chicago, Illinois
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
UNITE HERE LOCAL 1
and Case 13-CB-19622
RITZ-CARLTON WATER TOWER
PARTNERSHIP
Kevin McCormick, Esq., for the General Counsel.
Kristin L. Martin, Esq., of San Francisco, California,
for the Respondent.
Thomas J. Posey, Esq., of Chicago, Illinois,
for the Charging Party.
DECISION
Statement of the Case
PAUL BUXBAUM, Administrative Law Judge. This case was tried in Chicago, Illinois, on
August 1, 2011. The charge was filed January 7, 2011, and the complaint was issued on March
25.
The complaint alleges that the Union, Unite Here Local 1, violated the Act by failing and
refusing to bargain over certain terms and conditions of its members’ employment that it had
previously agreed were subject to such bargaining. This conduct is alleged to violate Section
8(b)(3) of the Act. The Union filed an answer to the complaint denying the material allegations
of wrongdoing and asserting as a procedural defense that the Board’s policies required that the
matter be deferred to arbitration.
For the reasons that I will describe in detail in this decision, I find that the Union did
violate the bargaining obligation imposed on it by the Act. I further conclude that the Board’s
policies regarding deferral to arbitration are not intended to be applicable to the circumstances
presented in this case.
On the entire record1, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Charging Party, and the

1 The transcript of the proceedings is quite accurate. The only material correction is the
erroneous use of the word “form” in three locations where the intended term was “forum.” (See
transcript at p. 74, l. 20; p. 75, l. 18; and p. 79, l. 11.) Any other errors of transcription are not
significant.
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Respondent, I make the following
Findings of Fact
I. Jurisdiction
The Charging Party, a corporation, operates a hotel at its facility in Chicago, Illinois,
where it annually derives gross revenues in excess of $500,000 and purchases and receives at
its Chicago facility goods and materials valued in excess of $50,000 directly from points outside
the State of Illinois. The Respondent admits,2 and I find, that the Charging Party is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the
Respondent is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Facts
Before setting out my findings of fact, it is appropriate to discuss the state of the
evidentiary record. The General Counsel and the Employer produced the testimony of two
witnesses, Kyle Johansen and Thomas Posey, both of whom are attorneys. Johansen
represented the Ritz-Carlton in labor relations from 2004 through 2010. Posey took over those
matters from Johansen during the summer of 2010. While the Respondent presented certain
documentary evidence in its case, it chose not to call any witnesses. As a consequence, the
testimony of Johansen and Posey is uncontroverted.
In evaluating the probative value of the witnesses’ testimony, its uncontroverted status is
obviously significant. Nevertheless, I recognize that both logic and Board precedent teach that
additional analysis is required. See Jupiter Medical Center Pavilion, 346 NLRB 650, 652 (2006)
(Board upholds trial judge’s rejection of uncontroverted testimony which the judge deemed to be
incredible). In this case, I found the manner of presentation of the two witnesses to be clear and
persuasive. I was also impressed by the fact that there were no significant internal or external
contradictions in their accounts. Most compellingly, I found their description of the key events to
be powerfully corroborated by documentary evidence that was created contemporaneously with
the unfolding events at the heart of the controversy. The Board has acknowledged that this is a
weighty consideration in evaluating evidence. See Domsey Trading Corp., 351 NLRB 824, 836
(2007) (a finding that contemporaneously created documentary evidence is “entitled to greater
weight than contradictory testimonial evidence is consistent with Board law”). For all of these
reasons, I have concluded that the testimony of Johansen and Posey was reliable.
I will now describe the sequence of events that led to this litigation. Unite Here Local 1
has represented employees of the Ritz-Carlton Water Tower Hotel for decades.3 Prior to 2006,
the parties engaged in collective bargaining through the mechanism of a multiemployer
bargaining group involving many hotels in the Chicago area. However, in 2006, the Union
advised that it would no longer bargain with the group if it included hotels owned by Hilton. After
that, certain major hotel chains withdrew from the multiemployer group. Still other hotels,

2 See Respondent’s answer to the complaint, pars. II and III. (GC Exh. 1(e), p. 1.)
3 Counsel for the Respondent reported that the bargaining representative for those
employees is technically the Chicago Joint Executive Board whose members consist of Unite
Here Local 1 and Unite Here Local 450. No party deemed it necessary to amend the complaint
in this regard.
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including the Ritz-Carlton, chose a different approach. This was described by Johansen, who
testified that the Ritz-Carlton and a number of other hotels, “adopted a ‘me too’ approach,
meaning that they would adopt the collective bargaining agreement between the Sheraton
Chicago and Unite Here.” (Tr. 65.)
Following this procedure, the Union and the Ritz-Carlton agreed to adopt the collective
bargaining agreement negotiated by the Sheraton and the Union. This procedure was
implemented, leading to a collective-bargaining agreement between the parties that
commenced on September 1, 2006 and was scheduled to expire on August 31, 2009. (Jt. Exh.
1.)
During the summer of 2009, the Union and the various hotel employers began the
process of negotiating new agreements. In July, the Union suggested to various hotels,
including the Ritz-Carlton, that they enter into written “me too” agreements that would bind them
to the terms of the collective-bargaining agreement that it would eventually negotiate with the
Sheraton. The template for such “me too” agreements was drafted by the Hotel Employers
Labor Relations Association (HELRA) and its subordinate arm, the Chicago Area Hotel Group
(CAHG).
Johansen explained that the Ritz-Carlton clearly intended to subscribe to the “me too”
method of proceeding for the upcoming round of collective bargaining. Nevertheless, the hotel
had some unique concerns that it wished to address with the Union. Management of the hotel
raised this matter with Johansen and presented him with a chart listing the topics of concern
and describing both the current established practice and the desired modifications. (GC Exh.
2.)
Management’s list of established practices for which it wished to negotiate changes with
the Union contained nine such topics. These topics were:
1. Reduce the fee paid to employees assigned to carving or other
specialty stations and change the applicable scheduling procedures.
2. Reduce the fee paid in lieu of a gratuity to bell attendants for delivery of
luggage to vacant rooms.
3. Reassign the two staff cafeteria cooks to the main kitchen.
4. Increase the number of private in-room bars that are to be serviced per shift.
5. Increase the work schedule for housekeepers from 7.5 to 8 hours per shift,
including elimination of the paid 15 minute break.
6. Reduce the payments for making up roll-away and sofa beds and limit
those payments to room attendants only.
7. Lower the room credit reduction for housekeepers based on the number
of “check-out” rooms per shift.
8. Pay all new employees at the union contract rate instead of the “Ritz Rate.”
9. Eliminate the bargaining unit’s beverage manager position.
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(GC Exh. 2.)
As requested by his client, in late July 2009, Johansen approached Henry Tamarin, the
president of the Union. His purpose was to “discuss the possibility of having discussions over
items that the hotel wanted to negotiate over that were not necessarily part of the collective-
bargaining agreement that would have to be negotiated between Local 1 and the Sheraton.”
(Tr. 69.) Johansen testified that, as outlined in the chart he was given by management, there
were 9 such items that the hotel wished to discuss. Each of them concerned a situation where
the Ritz was providing greater pay or improved working conditions compared to those
established in the “me too” collective-bargaining agreement.
Johansen explained the legal background supporting this approach to the Union. He
noted that the hotel was “looking for relief on, not to change the [parties’ eventual “me too”]
contract but to change the practice essentially.” (Tr. 70.) This concern arose from the fact that
the current collective-bargaining agreement contained a “Maintenance of Existing Privileges”
section that provided:
No employee shall, as a result of the signing of this Agreement, suffer
a reduction in his wages nor be deprived of any established and
recognized benefits or privileges in excess of, or more advantageous
than, the contract provisions.
(Jt. Exh. 1, Sec. 11, p. 7.) Johansen reported that he anticipated that the new “me too”
agreement would contain the same language.
Beyond potential liability for breach of contract, I note that the Employer’s concern
regarding this issue reflects an accurate appreciation of the principles of labor law applicable to
unilateral changes in terms and conditions of employment. Thus, the Board holds that an
established practice becomes an implied term and condition of employment even if it is not
included in the parties’ collective-bargaining agreement. When this occurs, a unilateral change
to such a practice would generally constitute an unfair labor practice within the meaning of
Section 8(a)(5) of the Act. Lafayette Grinding Corp., 337 NLRB 832, 832 (2002).4 Thus, the
hotel recognized that, in order to alter its established practices in the 9 areas of concern, it
would be required to afford the Union an opportunity to engage in bargaining.
Johansen reported that, before he had a chance to raise the matter with the Union, he
was approached by Tamarin regarding the Ritz’s failure to sign the HELRA “me too” agreement.
Tamarin asked if there was going to be a problem with the Ritz joining in the “me too”
arrangement for the current round of contract negotiations. Johansen explained that there was
not a problem, but that the Ritz was not “necessarily” prepared to sign the HELRA “me too”
agreement that had been provided to the various hotels. (Tr. 74.) He told Tamarin that, “there
were a number of items that we all knew that the Ritz was paying beyond the contract, and that
we wanted a forum to sit down and try and work through these issues.” (Tr. 74.)
Tamarin responded that the Union was “more than willing to sit down and talk . . . but
that he wanted my assurance that, ultimately, that the Ritz would be going along with a Me Too

4 For an example of this principle applied to a hotel employer, see Rosdev Hospitality,
Secaucus, LP, 349 NLRB 202, 203 (2007) (in successorship case, new owner could not
unilaterally modify established seniority accrual practice even though the modification “tracked
the literal terms” of the predecessor’s collective-bargaining agreement).
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agreement in some form.” (Tr. 76.) He also raised an additional concern about the Ritz’s
request, noting that he “wanted to avoid any appearance that the Ritz may be getting a better
deal than the other hotels.” (Tr. 76.) Thus, he wished to avoid giving other hotels “an incentive
or a roadmap on how to try and extract more from the union.” (Tr. 76.) Having aired these
considerations, the two men agreed to meet on September 1, the day after the expiration date
of the current collective-bargaining agreement between the parties.
On September 1, the parties held their scheduled meeting at the Ritz. The Employer
was represented by Johansen and Michele Grosso, who was at that time the hotel’s general
manager. Present for the Union were Tamarin and Karen Kent, the Union’s vice president.
Johansen testified that he brought the chart describing the items the Hotel wished to discuss
that had been previously provided to him by management. He did not, however, disclose the
chart to the union officials.5 The parties’ meeting lasted a bit more than an hour.
Johansen testified that he began the meeting by pointing out the long history of positive
labor relations between the parties and their prior ability to “work together to resolve a number
of disputes in the recent past.” (Tr. 78.) He expressed the hope that they would maintain a
“positive relationship . . . going forward.” (Tr. 78.) In reply, Tamarin agreed that the parties “had
a good relationship and that they were able to work through some challenging issues in the
past.” (Tr. 89.)
As the meeting progressed, Johansen explained that the hotel’s goal was not to reach
any agreements about the specific issues at this initial meeting, but rather “to come to an
understanding, to essentially agree to a forum to negotiate in the future, and to not be precluded
by the current version of the Me Too agreement.” (Tr. 79.) Specifically, he told Tamarin and
Kent that “what we needed was an agreement to carve out and to have the ability of, after the
Sheraton contract settled, that the Ritz would still have the ability to negotiate these issues.”
(Tr. 79.)
In order to provide context regarding the Hotel’s perceived need to obtain concessions
as to the 9 established practices, Johansen next provided the Union with “detailed information
about the financial condition of the Ritz-Carlton at that point.” (Tr. 80.) After presenting this
background, Johansen read through the list of issues that he had brought with him to the
meeting and “walked through all of the issues.” (Tr. 80.) He informed Tamarin and Kent that
“[o]ur general comment on all of these items is we’d like to go back to the contract rate or what
the contract required.” (Tr. 86.) In making this assertion of the hotel’s position, Johansen was
referring to the terms of the anticipated future contract between the Union and the Sheraton.
During their discussion, Tamarin questioned whether the hotel was “saying all or
nothing, you’re asking for all or nothing?” (Tr. 82.) Johansen testified that he reassured
Tamarin that they were not presenting a fait accompli, but that “these are issues we need help
with, we want to work and reach an agreement and negotiate over these issues so we can close
some of the competitive gaps.” (Tr. 88.) Tamarin stated that the Union was “willing to bargain
over those issues.”6 (Tr. 90.)

5 This has some significance because Posey later mistakenly asserted that Johansen had
provided a copy of the chart to the Union’s representatives. See GC Exh. 7. To clarify, I asked
Johansen to confirm his testimony on this point and he responded, “They never saw the
document. I did not hand it to them.” (Tr. 142.)
6 To underscore the point, counsel for the General Counsel, referring to the existence of 9
separate topics, asked Johansen whether Tamarin made this statement about “[a]ll of them?”
Continued
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Once the Union had expressed its consent to the procedure proposed by the hotel to
permit separate negotiations over the 9 established practices, the discussion turned to the
mechanics of implementing their agreement to negotiate. They discussed, “the challenge of
how to reduce to writing what we were agreeing to.” (Tr. 90.) In that connection, Tamarin made
two requests. First, he asked the hotel to draft the proposed agreement, “since we were the
ones that had asked for it.” (Tr. 90.) Second, he told Johansen that “he did not want a specific
list of the things in there.” (Tr. 90.) His rationale was the same that he had expressed to
Johansen during their initial discussion of the problem. He did not want to provide any
“roadmap” for other hotels to make similar demands for concessions. (Tr. 90.) They then
engaged in some discussion about how to draft language that would express their intent without
providing such a roadmap. In that conversation, Johansen and Grosso used the term “unique”
to describe the issues that were to be addressed by the parties outside the confines of the
Sheraton agreement. (Tr. 103.)
The parties left the meeting with the understanding that Johansen would prepare a draft
agreement that would memorialize and preserve the hotel’s right to negotiate changes to the
established practices that had been discussed. Johansen testified that, overall, it had been a
“very cordial, friendly meeting.” (Tr. 91.)
After the meeting, Johansen prepared a draft of a memorandum of agreement that
would reduce the parties’ understanding to written form. On September 16, 2009, he sent this
draft and a cover letter to Tamarin. In that cover letter, he explained that, “[a]ttached is the ‘me
too’ agreement for the Ritz. It incorporates the parties’ agreement reached during our
September 1 meeting to continue our discussions regarding the issues we raised with you.”7
(GC Exh. 3, p. 1.) The draft memorandum began by confirming the parties intention to enter
into a new collective-bargaining agreement by “adopting in its entirety” the agreement
negotiated between the Union and the Sheraton. (GC Exh. 3, p. 2.)
Paragraph III of the draft contained the heart of the matter raised by the hotel at the
September 1 meeting. It provided:
Specifically, the parties agree to continue their negotiations in good
faith regarding the specific side letters and operations issues unique
or pertaining to the Employer that were raised during the parties’
September 1, 2009 meeting notwithstanding the execution of this
Memorandum of Agreement. The parties further agree to keep open
those provisions of the Successor Collective Bargaining Agreement
that pertain to the specific unique operational issues raised at the
September 1, 2009 meeting until those issues are fully resolved.
(GC Exh. 3, p. 2.)
Additional paragraphs of the draft included the parties’ promises to each other that they
would not engage in any work stoppage or lockout. The draft also contained an arbitration
clause and a final paragraph noting that “this Agreement may not be rescinded or modified by
_________________________
Johansen responded, “Yes.” (Tr. 90.)
7 Johansen then proceeded to list seven issues. He testified that he did not include the in-
room bar stocking issue or the bell attendant luggage delivery fee reduction in his list because
those matters were “pretty insignificant.” (Tr. 93.)
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either the Employer or the Union, at any time or for any reason, except by mutual agreement of
the Employer and the Union.” (GC Exh. 3, p. 3.)
Johansen testified that he had a discussion with Tamarin, who informed him that he had
only one objection to the draft language. He took strong exception to the sentence that explicitly
stated that the parties would “keep open” the provisions of the successor collective-bargaining
agreement that related to the topics that were to be subject to negotiation. (GC Exh. 3, p. 2.)
He told Johansen that he opposed this language because it would prevent the parties from
concluding a “final collective bargaining agreement.” (Tr. 100.) He expressed the strength of
his opposition by asking Johansen a rhetorical question—“are you [expletive] kidding me with
that language?” (Tr. 99.)
Johansen reported that he and his client decided to accommodate Tamarin’s rejection of
the offending sentence and, with this deletion, Tamarin told him that, “we’re good to go.” (Tr.
104.) They also agreed that they would begin the process of negotiations after the Sheraton
negotiations “count[ed] down.” (Tr. 104.)
The final revised version of the Memorandum of Agreement (MOA) was signed on behalf
of the hotel by Grosso on September 16, 2009. Tamarin signed it for the Union on the next day.
The signed version is contained in the record as Jt. Exh. 2.8 With the signing of the MOA, the
parties put matters in abeyance until the Sheraton negotiations were completed. Those
negotiations took far longer than the parties had expected.
In the meantime, as of July 2010, Johansen accepted a new job and Posey took over his
duties as labor relations counsel for the Ritz, including matters related to the MOA. During this
period, Grosso transferred to a new position for the Employer that is located outside the United
States. He was replaced as general manager by Patrick Ghielmetti.
Posey testified that, although the Sheraton negotiations had still not been concluded, he
decided that it was time to contact the Union regarding the MOA negotiations. Thus, on the
anniversary of the signing of the MOA in the preceding year, Posey sent an email to Kent on the
subject of, “Ritz-Carlton Negotiations – Hotel Proposals.” (GC Exh. 4, p. 1.) In the body of this
cover letter, he informed Kent that he was attaching proposals from the Employer that “all relate
to matters that have already been discussed.” (GC Exh. 4, p. 1.) He noted that the parties were
scheduled to meet on September 24, 2010 and requested that the Union provide a “written
response” to the attached proposals at that meeting. (GC Exh. 4, p. 1.) The attached proposals
contained detailed language implementing changes to the established practices regarding each
of the 9 specific topics that had been listed on management’s original chart prepared for
Johansen’s use.
Posey testified that he received a telephone call from Kent to confirm the September 24
negotiating session. Significantly, he reported that Kent did not indicate any disagreement with
the list of issues that had been sent to her in preparation for the meeting.
As planned, the parties met at the Ritz on September 24. The Employer’s
representatives were Posey, Ghielmetti, and Cecilia Moore, the Hotel’s human resource
director. Kent served as the Union’s principal spokesperson and was accompanied by a
bargaining committee including various Hotel employees. Posey testified that he began the

8 The copy reproduced in the record contains a pencil-marked bracket that was not part of
the original document. This has been ignored.
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meeting by referring to the Hotel’s written proposals that had previously been emailed to Kent.
He reported that he “discussed each of the proposals and referred back to this list of nine
items.” (Tr. 165.) He noted that, during the course of his presentation, Kent “asked a number of
questions and made information requests regarding each of those proposals.” (Tr. 165.) He
also testified that Kent never offered any indication that the Union objected to negotiations over
any of the 9 topics. The parties did not resolve any substantive issues at the meeting but did
agree to a second meeting on October 21, 2010.
Posey next communicated with Kent by email on October 7, 2010. He began by
confirming the date and place of the parties’ next negotiating session. He then made the
following request to Kent:
As we discussed at the last session, please forward us the union’s
initial proposals prior to that date so that we can make the most
productive use of our time on the 21st.
(GC Exh. 5, p. 1.)
Kent replied to Posey’s email on October 11, 2010. Her response contained an
attachment that she explained was “a written request for information that we outlined in our last
session.”9 (GC Exh. 5, p. 1.) She requested that the information be provided to her in advance
of the October 21 meeting date.
In my view, Kent’s attachment is compelling evidence directly related to the key
substantive issue in this case. As will be discussed later in this decision, the Union’s position as
to the substance is that the parties never reached an agreement to negotiate regarding all 9
topics that were of interest to the Employer. Instead, the Union contends that the agreement
only extended to a duty to negotiate over a certain subset of those 9 topics. This argument is
gravely undermined by the detailed content of Kent’s email attachment. She begins this letter
by noting that, during the parties’ September 24 meeting, “I outlined a number of questions that
the Union had related to the Company’s proposal. The following is an outline of the information
that we requested.” (GC Exh. 5, p. 2.) The remainder of the attachment consists of the list of
detailed questions. It is divided into 9 paragraphs. Each of those paragraphs addresses topics
regarding which the hotel intended to negotiate with the Union.10
Examining the contents of this detailed information request reveals that the Union posed
13 questions, divided into 2 sections, regarding the carving station topic. It posed 4 questions
about the proposed transfer of the cafeteria cooks. Six questions were asked about the plan to
eliminate the beverage manager position. Ten questions were addressed regarding the roll-
away bed topic. Five questions were listed regarding the room credit proposal. Seven
questions were posed concerning the hotel’s desire to eliminate the paid 15-minute break. Kent
asked another 4 questions about the luggage delivery gratuity. Six more interrogatories were
directed toward the in-room bar service requirement. Finally, 8 questions were raised regarding
the hotel’s negotiating proposal concerning compensation for newly hired employees.

9 On the first page of the copy of this attachment reproduced in the record there is a hand-
written notation reading, “$125.” This was added later and should be ignored.
10 To be clear, while the hotel had 9 topics and the Union divided its questions into 9 topics,
the parties adopted different groupings. The bottom line, however, is that the Union posed
detailed questions about each and every topic that the hotel was raising in the negotiations
under the parties’ MOA.
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The Union has never presented any explanation as to why Kent felt it necessary to make
these detailed information requests as to each and every topic that the hotel asserts was
subject to negotiation under the parties’ MOA. I readily infer that the reason for the requests
was the Union’s belief that it was required by the MOA to address each of those topics in good
faith bargaining with the Employer.
The parties next met on October 21 as planned. Posey noted that the Employer had
already provided certain information that had been requested and then proceeded to provide, “a
little bit more of that information at the start of the meeting.” (Tr. 172.) In addition, he observed
that, “we had not received any written responses to our September 24th proposals yet.” (Tr.
172.) At this juncture, the Union requested a break which lasted approximately 40 minutes.
When the session resumed, Kent informed Posey that, “it was the Union’s position that
there were not nine items on the table to be bargained over and it was, in fact, less than that.”
(Tr. 172.) Posey testified that, “[a]t that time, [Kent] said five items but, as she got into more
detail and explained which items the Union would and would not bargain over, I actually only
counted three.” (Tr. 172.)
In his testimony, Posey reported that Kent provided the Union’s rationale for its refusal to
continue negotiations over all 9 topics. Kent explained that paragraph III of the MOA provided
that, “it was only issues that were unique or pertaining to the Ritz and, that a number of the
proposals did not fall under that category.” (Tr. 173.) She did offer to continue to negotiate over
the beverage manager position, the cafeteria cook transfer, and the quota for in-room bar
servicing. Finally, she stated that, “although she didn’t believe they were obligated to, that they
may consider also discussing one part of the carving station issue, specifically the carving
station scheduling.” (Tr. 174.) Lastly, Kent raised a tenth topic, cross-training for the hotel’s
cooks. The Union also presented written proposals to the hotel regarding the cafeteria cook
reassignment and its own newly raised cross-training proposal. On hearing the Union’s
position, Posey stated that, “we strongly disagreed,” asserting that “you’ve already agreed that
we [are] going to negotiate” over all of the 9 topics. (Tr. 175.)
On November 3, 2010, Posey sent a letter to Kent containing a formal statement of the
Hotel’s position regarding the Union’s refusal to negotiate over all 9 topics. He asserted that,
“there is no basis for the Union’s argument that only some, but not all, of the issues that were
raised during the parties’ September 1, 2009 meeting are subject to the Memorandum.” (GC
Exh. 7, p. 2.)
The parties next met on November 11, 2010. Shortly before the time set for the
meeting, Kent sent an email response to Posey.11 She reported that the Union was working on
its proposals and would provide them to the hotel by the start of the meeting. She added,
“[r]egarding our ‘Me Too’ agreement, it is clear that we have a disagreement. Hopefully that will
not stand in way of us amicably resolving our differences.” (GC Exh. 8.)
At their meeting later on this day, Posey told the union negotiators that, based on Kent’s
email, the hotel “looked forward to receiving the Union’s proposals regarding each of the nine
items.” (Tr. 194.) Kent explained that Posey had misunderstood the meaning of Kent’s email
and that the Union would not be making proposals as to all 9 topics. The majority of the

11 Kent’s email makes reference to Posey’s letter of October 3, 2010. The parties all agree
that this was an error and that Kent was referring to Posey’s letter sent on November 3, 2010.
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subsequent discussions related solely to the in-room bar stocking issue.
On November 23, 2010, Kent sent a letter to Posey that she characterized as the
Union’s “formal” response to the hotel’s contention that the MOA required the parties to engage
in negotiations regarding all 9 topics that were of interest to the Employer. (GC Exh. 9, p. 1.)
She explained that the Union’s view was that only a subset of the 9 topics was subject to a
bargaining requirement under the language of the MOA. Referring to the MOA’s reference to
the parties’ commitment to bargain over “specific side letters and operations issues unique or
pertaining to the Employer that were raised during the parties’ September 1, 2009 meeting,”
she asserted that this phraseology was intended as an agreement to limit bargaining to only a
subset of management’s 9 topics of interest.
According to Kent’s proposed interpretation, the term “unique” meant “things that are
only true at Ritz-Carlton and not elsewhere,” while the term “pertaining” signified “a matter that
is not a standard item throughout the industry but is something that specifically, although not
uniquely, pertains to Ritz-Carlton.” (GC Exh. 9, p. 2.) Thus, she concluded that this language
from the MOA constituted “a limiting qualification: that this promise [to bargain] extended only to
those of the nine issues that are ‘unique or pertaining to the Employer.’” (GC Exh. 9, p. 2.)
On December 8, 2010, the parties held their next meeting. The discussion was largely
confined to an exploration of the in-room bar issue. Similarly, at the following meeting on
December 22, the topics were limited to the same in-room bar issue and the Union’s proposal
regarding cross-training of cooks. The Union took the occasion to present a written proposal
regarding its cross-training plan.
Posey testified that, during 2011, the parties have held 4 or 5 additional bargaining
sessions. These involved negotiations over the three topics that the Union asserted as the
entirety of the topics it was required to discuss under the MOA. In addition, the parties
continued to discuss the Union’s cross-training issue.12 Posey summarized the course of these
discussions as follows:
[I]n general, at those sessions, I’ve reiterated the hotel’s position
that the other six items or six-and-a-half, depending on how you
count them, should also be on the table and the Union has
responded that they’re not.
(Tr. 206.) He added that Kent, “maintained the consistent position that those items are off the
table.” (Tr. 208.) The parties reached a tentative agreement as to the transfer of the cafeteria
cooks but have not been able to agree on any other item.
On January 7, 2011, the hotel filed its initial charge in this matter, alleging that the Union
had violated the MOA by refusing to bargain over issues that were subject to bargaining under
the terms of that agreement. (GC Exh. 1(a).) On April 12, 2011, the Union and the Sheraton
successfully concluded their lengthy negotiations for a new collective-bargaining agreement. As
of the time of trial, Posey outlined the status of the contractual relationship between the Ritz-
Carlton and the Union in his testimony:
[T]he full or formal agreement [between the Union and the Sheraton]
has yet to be prepared . . . . At the moment, there’s a summary of the

12 Posey reported that, ultimately, the hotel rejected the cross-training plan.
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terms of the new agreement that’s been drafted and signed by the
Sheraton’s attorney, which is myself, and the Union’s representative,
Henry Tamarin. I don’t believe that summary has been formally
presented to the Ritz yet. So, until the time that’s presented, the Ritz
is not bound by those new terms. Although, as a practical matter, I
believe they may be following those right now, anyway.
(Tr. 149.) Later in his testimony, Posey reported that he had spoken with the Ritz’s human
resources director and her assistant and they confirmed that the Ritz had not yet received the
new collective-bargaining agreement.
The Regional Director issued his complaint and notice of hearing on March 25, 2011.
The parties confirm that throughout this matter the Union has continued its refusal to bargain
over all of the 9 topics that the Employer contends are mandated for such bargaining by the
parties’ MOA.
B. Legal Analysis
I have already indicated that resolution of this case requires assessment of both a
substantive legal dispute and a procedural defense raised by the Union. Ordinarily, one would
expect that the procedural matter should be resolved first. However, on the particular
circumstances presented in this case, I have concluded that the proper methodology requires a
dissection of the substantive issue before the procedural defense can be fully addressed. In
order to explain this conclusion, it is necessary to outline some of the history of this litigation.
It will be recalled that the complaint issued on March 25, 2011. The Union filed its
answer on April 4. In that answer, it contended that, “[t]he unfair labor practice alleged in the
Complaint should be deferred to arbitration pursuant to Collyer Insulated Wire, 192 NLRB 837
(1971).” (GC Exh. 1(e), p. 3.) Quite properly, the Union followed up this assertion by filing a
motion for summary judgment on the deferral issue. (GC Exh. 11.) Both the General Counsel
and the hotel filed oppositions to the motion. (GC Exhs. 1(i) and 1(l).) On July 29, 2011, the
Board issued an order denying the Union’s motion for summary judgment in the following terms:
The Respondent has failed to establish that there are no genuine issues
of material fact regarding its argument that the complaint allegations
should be deferred to the parties’ grievance and arbitration procedure
pursuant to Collyer Insulated Wire, 192 NLRB 837 (1971). This denial
is without prejudice to the Respondent renewing its deferral argument
before the administrative law judge.
(GC Exh. 1(q).)
At trial, the Union did continue to assert its deferral defense. As its counsel explained,
“our position is this is a Collyer, really should be Collyerized and we feel very strongly about
that.” (Tr. 236.)
I have given particular attention to the wording of the Board’s Order denying the
summary judgment motion without prejudice. I conclude that the Board’s language, cited
above, mandates that the ultimate resolution of the deferral issue must proceed from a
comprehensive assessment of the “material fact[s]” as developed through the trial process. (GC
Exh. 1(q).) Otherwise, there would be no point in the Board’s specific authorization for the
Union to renew the argument before me. In light of the Board’s position, I will therefore begin by
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assessing the facts underlying the parties’ dispute and the legal conclusions that flow from
those facts. Having performed this analysis, I will next turn to the procedural argument and
determine whether the Board’s deferral policies are properly applied to this dispute.
1. The Alleged Bargaining Violation by the Union
In Section 8(b)(3) of the Act, Congress made it an unfair labor practice for a union
representing employees in a bargaining unit to “refuse to bargain collectively” with their
employer. The General Counsel alleges that, by failing to bargain over all of the 9 issues that
the hotel viewed as encompassed in the parties’ MOA, the Union has violated this statutory
requirement.
In response, the Union has stated as its “formal” position that the parties’ MOA merely
required it to bargain over a “subset” of the 9 issues of concern to the Employer, namely those
issues “unique or pertaining to the Employer.” (GC Exh. 9, pp. 1-2.) It has chosen to define
those issues as being limited to the hotel’s proposed reassignment of the two cafeteria cooks,
the work quota for the servicing of in-room bars, and the elimination of the beverage manager
position.13 As a result, it has refused to engage in bargaining over the fee for work on specialty
stations, reduction of the gratuity paid to bell attendants for delivering luggage to vacant rooms,
elimination of the paid 15-minute break for housekeepers, reduction of the payment for making
up roll-away and sofa beds, lowering of the room credit reduction for check-out rooms, and
payment of the contract rate for all new employees.
In determining whether the Union’s conduct violates the Act as alleged, I will first outline
the evidence regarding the parties’ decision to enter into the MOA. It will be recalled that the
hotel’s management presented its lawyer with a chart detailing the 9 topics that it wished to
reserve for bargaining with the Union. The lawyer was instructed to seek an understanding with
the Union that the hotel would sign a “me too” commitment binding it to the eventual terms of
the Sheraton collective-bargaining agreement in exchange for the Union’s promise to bargain
over this list of 9 issues.
Following his client’s instructions, Johansen met with union officials on September 1,
2009. He presented uncontroverted and credible testimony that, during this meeting, he
“walked through all of the issues” listed by his client on the chart. (Tr. 80.) Union President
Tamarin expressed the Union’s agreement to bargain over these items in return for the hotel’s
commitment to follow the “me too” process. Under examination by counsel, Johansen clearly
affirmed that the agreement to bargain covered, “[a]ll of them.” (Tr. 90.) [Counsel’s choice of
wording.] The parties also agreed that counsel for the hotel would draft the MOA and that, at
the request of the Union, it would not include a “specific list of the things in there.” (Tr. 90.)
After this meeting, Johansen proceeded to prepare a draft MOA. Tamarin limited his
comments to one sentence which he found unacceptable. When the hotel withdrew this
sentence, Tamarin advised Johansen that they were “good to go.” (Tr. 104.) The parties then
proceeded to execute the MOA. After this, matters remained in limbo for approximately a year
while the Sheraton negotiations dragged on. In September 2010, Posey replaced Johansen as
the hotel’s counsel. On September 16, he sent an email to Kent containing the hotel’s specific

13 Kent also told the hotel’s negotiators that, although not obligated to bargain about the
topic under the MOA, the Union “may consider also discussing . . . the carving station
scheduling.” (Tr. 174.) However, she specifically rejected any bargaining about the carving
station fees.
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proposals regarding the 9 issues of concern to the Employer. (GC Exh. 4.) Posey provided
credible and undisputed testimony that Kent responded by telephone. During their
conversation, she confirmed the date for upcoming negotiations and did not express any
reservations regarding the topics to be discussed.
The parties held their first bargaining session under the MOA on September 24, 2010.
Posey testified, without contradiction, that he “discussed each of the proposals and referred
back to this list of nine items.” (Tr. 165.) He reported that, “Ms. Kent asked a number of
questions and made information requests regarding each of those proposals.” (Tr. 165.) On
October 11, Kent followed up her information requests with a detailed and highly specific list of
questions regarding each of the hotel’s 9 items. (GC Exh. 5.) Not until the parties were
assembled for the next bargaining session on October 21 did the Union express any limitation
on the topics that it was prepared to discuss. At that session, Kent took the position that the
Union’s agreement in the MOA only required bargaining over 3 of the 9 topics. Since that time,
the Union has maintained its insistence that the parties’ MOA requires bargaining only as to
those topics.
I conclude that the clear and undisputed evidence demonstrates that both parties
entered into the MOA for valuable consideration. The hotel sought and obtained a mechanism
for seeking concessions about 9 issues involving established past practices that were more
favorable to its employees than the terms of the Sheraton collective-bargaining agreement. The
Union sought and obtained the hotel’s agreement to follow the “me too” format for the parties’
successor collective-bargaining agreement, something that Tamarin had raised as an important
objective during his first conversation about the issue with Johansen in July 2009.14
The private parties both agree that the MOA is a valid and enforceable contract between
them. At trial, I confirmed this point by asking the lawyers for the Employer and Union whether,
“everyone agrees there’s a contract here.” (Tr. 13.) Both expressed assent to this
proposition.15 They have a dispute regarding the scope of their contract and the resolution of
that dispute is vital to the adjudication of the unfair labor practice alleged in this case. The
Board has noted that its authority to engage in interpretation of contractual agreements in the
course of adjudicating unfair labor practices is “well settled.” Electrical Workers IBEW Local 11
(Los Angeles NECA), 270 NLRB 424, 425 (1984), enf. 772 F.2d 571 (9th Cir. 1985).
I will now turn to the task of interpreting the parties’ MOA. The Board requires that this
process be “fact specific.” Shaw’s Supermarkets, 343 NLRB 963, 963 (2004). The key
analytical principles have been outlined by the Board as follows:

14 The MOA also contained another important set of mutual promises representing valuable
consideration for each side. Par. V of the MOA provides for “mutual promises between the
Union and the Employer” that they will refrain from engaging in any strike or lockout against
each other following the expiration of their current collective-bargaining agreement.
15 Counsel for the General Counsel did voice some concern that there may have been an
issue of “contract formation.” (Tr. 26.) In my view, this was a shortsighted tactical argument
that represented an effort to counter the Union’s insistence that the matter be deferred to
arbitration. As I stated to Counsel for the General Counsel, “what you’re saying . . . is you can’t
defer this to arbitration because there wasn’t a contract, therefore, we’re going to have a trial.
At that trial, you’re going to insist that there was a contract and that [the Union] broke it.” (Tr.
30.) Having now had the opportunity to review the entire record, I readily conclude that the
private parties are correct in agreeing that they did enter into a valid and binding contract. The
only matter in dispute is the extent of the bargaining obligation they undertook in that contract.
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In contract interpretation matters like this, the parties’ actual intent
underlying the contractual language in question is always paramount,
and is given controlling weight. To determine the parties’ intent, the
Board normally looks to both the contract language itself and relevant
extrinsic evidence, such as a past practice of the parties in regard to
the effectuation or implementation of the contract provision in
question, or the bargaining history of the provision itself.
Mining Specialists, 314 NLRB 268, 268-269 (1994).
Turning first to the language of the MOA, the parties agree that the critical provision in
dispute is par. III, which contains the following key sentence:
Specifically, the parties agree to continue their negotiations in
good faith regarding the specific side letters and operations issues
unique or pertaining to the Employer that were raised during the
parties’ September 1, 2009 meeting notwithstanding the execution
of this Memorandum of Agreement.
(Jt. Exh. 2, p. 1.) It is obvious to the parties and to me that this language is ambiguous on its
face, particularly since it references “issues . . . that were raised during the parties’ September
1, 2009 meeting” without providing a list of such issues.
While the Board does not permit the introduction of extrinsic evidence to contradict a
contract’s unambiguous terms, it does allow consideration of such parole evidence to facilitate
analysis in circumstances where “an ambiguity arises, or the intent or object of the instrument
cannot be ascertained from the language employed therein.”16 Sansla, Inc., 323 NLRB 107 109
(1997), citing 30 Am. Jr. 2d, Section 1069 (1967). See also Don Lee Distributor, Inc., 322 NLRB
470, 484-485 (1996), enf. 145 F.3d 834 (6th Cir. 1998), cert. denied 525 U.S. 1102 (1999).
The parole evidence in this case, consisting of the credible and uncontroverted
testimony and the documentary evidence including the Union’s detailed information request
regarding all 9 of the hotel’s topics, clearly demonstrates that the issues raised during the
parties September 1, 2009 meeting and intended for inclusion in the MOA were the 9 matters
that I have previously listed at page 3 of this decision. The MOA commits the parties to
negotiate about each of those items.
In reaching this conclusion, I have considered the Union’s argument to the contrary.
That argument centers on the parties’ use of certain descriptive language regarding the issues
that were raised at the September 1, 2009 meeting. Thus, the MOA provides that those issues
consist of “specific side letters and operations issues unique or pertaining to the Employer.” (Jt.
Exh. 2, p. 1.) The Union argues that these descriptive words represent a limitation on the scope

16 In this case, it is particularly appropriate to consider parole evidence. It will be recalled
that the MOA’s ambiguity was created at the specific demand of the Union. Tamarin had
insisted that the agreement omit a precise list of the topics to be negotiated because he did not
want to provide a “roadmap” for other hotel managers to use in an effort to seek concessions
from the Union. (Tr. 90.) Having demanded the use of elliptical language in the MOA, the
Union cannot (and does not) complain about the use of extrinsic evidence to shed light on the
parties’ intent.
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of its agreement to negotiate about the issues raised at the September 1 meeting.17
In the first place, the Union contends that, in context, the word “unique” means that the
issues to be negotiated must represent “things that are only true at Ritz-Carlton and not
elsewhere.” (GC Exh. 9, p. 2.) Second, the Union asserts that the word “pertaining” means “a
matter that is not a standard item throughout the industry but is something that specifically,
although not uniquely, pertains to the Ritz-Carlton.” (GC Exh. 9, p. 2.) In some undefined
process of alchemy, it concludes that application of these definitions to the 9 items of concern to
the hotel results in a requirement that the parties’ negotiate about 3, but need not discuss the
remaining 6. Thus, for example, they must discuss the number of in-room bars that employees
are required to service per shift but need not address the number of rooms the housekeepers
must make up during a shift. I cannot discern any substantive difference between these topics
and the Union has not provided any explanation for the proposed distinction.
It is evident from the totality of circumstances that the use of the terms “unique” and
“pertaining” was simply to express the concept that these matters have been subject to an
established practice that differs from the requirements of the parties’ collective-bargaining
agreement. The Union’s strained effort to interpret them as something else founders on the
rock represented by the parties use of a tiny but important additional disjunctive term, “or.” The
use of this term vitiates any limitation that may conceivably derive from the word “unique.” In
order to be covered by the MOA, a practice that was discussed at the September 1 meeting
need not be unique. It need only be a matter that pertains to the Ritz-Carlton, so long as it was
discussed at the key September 1 meeting.
Lastly, in presenting the Union’s rationale for its refusal to bargain about the majority of
the 9 topics, Kent argued that the Employer’s position that all 9 of the items raised at the
September 1, 2009 meeting were subject to a bargaining obligation, “deprives much of
Paragraph III of any meaning, in violation of one of the most important rules of contract
construction.” (GC Exh. 9, p. 2.) This is inaccurate because it fails to acknowledge Johansen’s
actual reason for using the words “unique or pertaining to the Employer.” (Jt. Exh. 2, p. 1.)
In reality, Johansen chose those words to express the concept that the 9 items that
would be subject to the parties’ negotiations under their MOA all involved matters on which the
past practice of the Employer and the Union had been different from (and more favorable to the
Union than) the terms of the “me too” collective-bargaining agreement then in effect and any
anticipated successor “me too” agreement. Thus, the nature of the topics was hardly unique.
These were topics common in the hospitality industry such as the quantity of work performed by
housekeepers and the amount of gratuities owed to bell attendants. What was unique and
pertained only to the Ritz were the particular established practices that were in effect regarding
each of the topics.18 For this reason, I reject the Union’s strained effort to suggest that
Johansen’s contract language was a limitation on the number of items subject to negotiation, as
opposed to an attempt to explain why each of those items was appropriately subject to such
negotiation despite the parties’ adherence to the “me too” arrangement for their successor

17 It is interesting to note that Kent’s formal statement of the Union’s position concedes one
key matter of fact. In her statement she acknowledges that the parties did discuss “all nine of
the items” during the September 1, 2009 meeting. (GC Exh. 9, p. 2.)
18 Thus, as Johansen testified, his choice of language meant, “different, paying above scale
and a level above scale, any number of things that were beyond the [Sheraton] contract. And
we were only talking about the Ritz.” (Tr. 103.)
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collective-bargaining agreement. 19
It is beyond question that each of the 9 topics of concern to management does “pertain”
to the Ritz-Carlton. Furthermore, each of those topics was specifically raised during the parties’
September 1, 2009 meeting. In consequence, the MOA commits the parties to negotiate about
each of those 9 items.
The Union’s attempt to pick and choose among the 9 items and negotiate about only
those that it arbitrarily selects represents a fundamental repudiation of the MOA. This is further
illustrated by examination of the Union’s overall behavior in its negotiations with the Employer.
It has taken four positions regarding the subject matter of those negotiations. First, the Union
has agreed that it is required by the MOA to bargain over reassignment of the cafeteria cooks,
servicing of in-room bars, and elimination of the beverage manager position. Second, it has
flatly refused to bargain over the carving station fees, gratuity for bell attendants, elimination of
the housekeepers’ paid break, fees for making up roll-away or sofa beds, room credits for
check-out rooms, and compensation of new employees. Third, it has agreed to bargain over
scheduling procedures for carving station work, but has specified that this is a voluntary
decision that is not compelled by the parties’ MOA. Fourth, it has raised an entirely new issue
to be subject to bargaining outside the confines of the “me too” agreement. That issue is its
proposal for cross training of cooks.20 Viewed in the entirely, this course of conduct leads to the
conclusion that the Union has placed no reliance on any obligation to bargain created under the
MOA. Instead, it has chosen to proceed as if that MOA did not impose any obligations on it.
Essentially, in the Union’s view, the MOA has ceased to exist. In its eyes, bargaining between
the parties is entirely an ad hoc matter, free of any contractual limitations or obligations.
The Union’s acts and statements go beyond the confines of a contract dispute or minor
breach of the contract. They constitute a repudiation of the MOA. As Comment 2(b) to the
Restatement of Contracts 2d, § 250 notes, “language that under a fair reading amounts to a
statement of intention not to perform except on conditions which go beyond the contract
constitutes a repudiation.”21 [Internal punctuation omitted.] Such conduct violates Section
8(b)(3) of the Act. See Local Union No. 3, IBEW (Burroughs Corp.), 281 NLRB 1099 (1986), fn.
2 (union’s repudiation of existing contract violates Sec. 8(b)(3)).

19 Indeed, it is a bit ironic that the evidence leads me to the strong inference that Johansen
actually included the “unique or pertaining” language to reassure the hotel’s employees and the
Union that the hotel was precluded under the MOA from seeking concessions that were less
favorable than the working conditions specified in the parties’ collective-bargaining agreement
or its eventual successor.
20 In his brief, counsel for the hotel correctly notes that during the trial I wondered aloud
about the rationale for the Union’s cross training proposal. (CP Br., at fn. 2.) At that time, I
speculated that it may have borne some relationship to the cafeteria cooks’ transfer issue.
Posey responded with uncontroverted testimony that established that the Union stated that the
purpose was to give all 25 to 30 of the hotel’s cooks “maximum opportunities for advancement
and increase of their earnings.” (Tr. 210.) There was no evidence presented to indicate that the
Union saw this proposal as related to any of the 9 topics covered by the MOA.
21 The Restatement cites § 2-610 of the Uniform Commercial Code and its official
comments. Those comments note that repudiation consists of statements or actions that
constitute “a demonstration of a clear determination not to perform.” Comment 5. The evidence
as to the Union’s behavior in this case certainly falls within that description.
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2. The Union’s Deferral Argument
As part of their MOA, the parties in this case provided that, “[t]he provisions of this
Agreement shall be enforceable in accordance with the procedures set forth in Section 46 of the
Current Collective Bargaining Agreement between the Employer and the Union.” (MOA, par. VI,
Jt. Exh. 2, p. 2.) Citing this language, the Union has throughout this litigation rested the bulk of
its defense on the argument that the Board’s policies require that the controversy be deferred to
the arbitral process. As I have already indicated, in its pretrial order denying summary
judgment, the Board rejected this argument but authorized the Union to raise it again before
me.22
The Board’s leading case on deferral of unfair labor practice charges and complaints to
arbitration is, of course, Collyer Insulated Wire, 192 NLRB 837 (1971). As the Board explained:
[E]ach such case compels an accommodation between, on the one hand,
the statutory policy favoring the fullest use of collective bargaining and the
arbitral process and, on the other, the statutory policy reflected by Congress’
grant to the Board of exclusive jurisdiction to prevent unfair labor practices.
192 NLRB at 841.
Very recently, the Board reiterated the following list of its criteria used to assess the
competing policy interests and arrive at a decision:
The Board considers six factors in deciding whether to defer a dispute to
arbitration: (1) whether the dispute arose within the confines of a long and
productive collective-bargaining relationship; (2) whether there is a claim of
employer animosity to the employees’ exercise of protected rights; (3) whether
the agreement provides for arbitration in a very broad range of disputes;
(4) whether the arbitration clause clearly encompasses the dispute at issue;

22 In denying the summary judgment motion, the Board held that the Union “has failed to
establish that there are no genuine issues of material fact” related to the deferral argument.
(GC Exh. 1(q).) As a result, I have waited until the development of the full trial record before
finally addressing the deferral defense. However, I do recognize that this methodology, while
consistent with the Board’s Order in this case, is in tension with the Board’s directive in
Servomation Corp., 271 NLRB 1112, fn. 7 (1984), where it held that, “[t]he maintenance of a
meaningful and effective deferral policy . . . requires that the initial deferral decision under
Collyer be made on the basis of the complaint, the Respondent’s defense, and the applicable
contract provisions. Thus, it serves few, if any, of Collyer’s stated objectives to make a decision
regarding deferral that is based on evidence and legal theories that are outside the specifically
pleaded complaint allegations. In short, the Board and its judges ought not to first decide the
case and then determine whether deferral is appropriate.” I can only concur with the
observations of a colleague who noted that application of Collyer “is often a challenging task,
however, because of the variety of pronouncements by the Board on the subject and the
uniqueness of each new case in which deferral contentions are raised.” Live Oak Skilled Care
& Manor Hosp., 300 NLRB 1040, 1044 (1990). On balance, I believe that the procedure I have
adopted in the circumstances of this case has permitted a full and fair examination of the
deferral issue consistent with the Board’s intentions as expressed in its pretrial Order and
without the imposition of an undue burden on the parties.
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(5) whether the employer asserts its willingness to resort to arbitration for the
dispute; and (6) whether the dispute is eminently well-suited to resolution by
arbitration. [Citations and internal punctuation omitted.]
San Juan Bautista Medical Center, 356 NLRB No. 102 (2011), slip op. at p. 2. In that case, the
respondent was an employer. Here, the Respondent is a labor organization. As a result, the
criteria must be adapted to address the Union’s behavior and willingness to arbitrate.
Applying this test, I note first that there is ample evidence in the record to establish that
these parties have enjoyed a lengthy and, usually, productive collective-bargaining relationship.
In their discussions with each other, they have often made reference to this history. While I
certainly suspect that the events involved in this case have placed a strain on their relationship,
I still conclude that the first criterion for deferral is met.
It is not entirely clear to me how the Board would apply the second criterion in these
circumstances involving a union as the respondent seeking deferral to arbitration. Clearly there
is nothing about this case that suggests that the Union is hostile to “employees’ exercise of
protected rights.” Supra, slip op at p. 2. On the other hand, if one takes a broader view of what
is intended by this criterion, there is evidence to suggest that the Union is hostile to the
principles of collective bargaining that are an equally important component of the policies
underlying the Act. I do not view this as decisive because there is no evidence in the record to
indicate that the Union’s conduct in this case is part of a pattern of recidivist violations of the
Act. Thus, application of the second criterion to this case does not preclude deferral.
I will examine the next two criteria together as they are closely related in the
circumstances of this case. The parties’ arbitration clause appears on its face to provide broad
coverage for any dispute involving, “[t]he provisions of this Agreement.” (Jt. Exh. 2, p. 2.) The
more difficult question is whether the clause encompasses the dispute at issue. Both the
General Counsel and the hotel argue that the clause does not encompass the dispute at issue
since they contend that the Employer “does not have access to the contractual grievance
procedure.” (CP Br., at p. 18. See also GC Br., at p. 13 (“the grievance procedure is not
available” to the Employer).)
The basis for the contention that the hotel cannot avail itself of the MOA’s arbitration
clause is the fact that the clause incorporates a reference to Section 46 of the parties’ collective-
bargaining agreement. That lengthy provision sets forth a detailed procedure for “Adjustment of
Grievances.” The procedure culminates in arbitration as a last step. Naturally, this procedure
anticipates that such grievances would only be filed by employees or their union representative.
Therefore, the Employer and General Counsel argue that the arbitration process is only
available to the Union or an employee who has proceeded through the prior steps of the
grievance process. Because the Employer cannot file a grievance, it is asserted that it cannot
avail itself of arbitration of disputes arising under either the collective-bargaining agreement or
the MOA.
I conclude that this line of reasoning is mistaken, both because of the specific language
in the MOA and the existence of other language in the collective-bargaining agreement that has
not been cited by the parties. Turning first to the collective-bargaining agreement, in addition to
their grievance procedures, the parties have established an arbitration process for another class
of potential disputes. Section 6 of their contract covers issues related to subcontracting. It
requires negotiations before any subcontracting of work by the hotel. It goes on to direct that:
In the event such negotiations fail to produce an agreement, either
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party may invoke the arbitration provisions set forth in Sections 45
and 46 of this Agreement. [Italics supplied.]
(CBA, Sec. 6, Jt. Exh. 1, p. 5.) Obviously, this language disposes of the claim that the Employer
lacks any right of access to arbitration under the terms of the parties’ collective-bargaining
agreement. Beyond that, it demonstrates that the placement of the arbitration provisions in the
contract section governing grievances is merely a matter of convenience and does not carry any
substantive implications.
These conclusions are only reinforced when the language of the MOA’s arbitration
clause is examined closely. That clause does not say that arbitration of disputes under the
MOA shall be performed under the terms of Section 46 of the collective-bargaining agreement.
Instead, it clearly provides that such arbitration shall be performed “in accordance with the
procedures set forth in Section 46.” (Jt. Exh. 2, p. 2.) [Italics supplied.] Thus, as with
arbitration of subcontracting disputes, the intent of the MOA’s arbitration clause was to utilize
the procedural mechanisms of Section 46. These mechanisms describe the list of potential
arbitrators, allocate the costs of arbitration, provide time frames for the process, and delineate
other important procedural details. The MOA’s reference to Section 46 simply creates a
shorthand method of fleshing out the details of the arbitration process for disputes arising under
the MOA. I readily conclude that there is no impediment to the Employer’s use of arbitration
that would preclude deferral in this case.
The next issue is whether the Union has asserted a willingness to subject the dispute to
arbitration. Through its counsel, it has repeatedly expressed its desire to do so. Indeed,
counsel added that, “we would very much respect that process because our whole collective
bargaining relationship depends on it.” (Tr. 21.) There is nothing in the record to cast doubt on
these representations. I do not find that this factor precludes deferral.
Having determined that none of the first 5 criteria support a refusal to defer this case to
an arbitrator, I must assess the final evaluative standard: whether the parties’ dispute is
eminently well suited to resolution by arbitration. In articulating the proper considerations
regarding suitability, the Board has outlined two particular factors that persuade me that deferral
is inappropriate in this case.
First, in Collyer, the Board placed great reliance on an articulation of policy from a prior
case, Jos. Schlitz Brewing Co., 175 NLRB 141, 142 (1969), where the Board outlined the proper
use of deferral follows:
[W]here, as here, the contract clearly provides for grievance and arbitration
machinery, where the unilateral action is not designed to undermine the
union and is not patently erroneous but rather is based on a substantial
claim of contractual privilege, and it appears that the arbitral interpretation
of the contract will resolve both the unfair labor practice and the contract
interpretation issue in a manner compatible with the purposes of the Act,
then the Board should defer to the arbitration clause conceived by the
parties.
Among the key analytical tests outlined in this language is the requirement that the respondent’s
position on the merits is “not patently erroneous but rather is based on a substantial claim of
contractual privilege.” Supra., at p. 142.
Webster defines “patency” as the “state of being obvious.” Webster’s II New Riverside
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University Dictionary, 1994 edition, at p. 861. I have previously discussed my conclusions
regarding the erroneous nature of the Union’s position in this litigation based on my review of
the entire record of these proceedings. However, in order to demonstrate the obvious nature of
the Union’s error, I will simply refer to 3 documents that convincingly demonstrate that the
Union’s position is patently wrong.
First, the parties’ MOA itself does not give any support to the notion that the parties
agreed to bargain over only a subset of the issues that they discussed in their September 1,
2009 meeting. It would be ludicrous to suggest that they would enter into such a bizarrely
indeterminate undertaking. Second, lest there be any doubt that the topics for bargaining were
the 9 topics of interest to the hotel, Kent’s formal statement of position concedes the issue. In
that document she affirms that there were, indeed, 9 items raised at the September 1 meeting.
(See, GC Exh. 9, p. 2, par. 2.) Finally, any lingering concern that the Union may have in some
manner misunderstood that it had agreed to bargain over 9 items is eliminated by reference to
the extensive written list of information requests that demanded answers to detailed questions
about each and every one of those 9 topics. (GC Exh. 9, pp. 2-5.) This contemporaneous
documentary evidence convincingly demonstrates that the parties agreed to bargain over 9
issues and the Union recognized its obligation to engage in such bargaining as to those 9
issues by taking steps to become fully informed about each of them. The Union’s belated claim
that the parties actually only agreed to negotiate about some undefined portion of the 9 issues is
simply a makeweight argument designed to deflect its liability for refusing to meet its contractual
and statutory obligations.
In Borden, Inc., 196 NLRB 1170 (1972), the Board expressly adopted the judge’s refusal
to defer the case to arbitration where the employer’s position on the merits was patently
erroneous. In reaching this conclusion, the judge contrasted the situation with the issue
presented in Collyer. He noted that the dispute in Collyer involved “an intricate, technical kind of
issue involving an interpretation of contract language covering problems peculiar to the
employer involved.” 196 NLRB at 1175. In contrast, in Borden, the issue was whether the
parties “have fallen short in their obligations to bargain collectively.” 196 NLRB at 1175. As the
judge explained, this type of issue was poorly suited to arbitration and one that was “of a kind
that the Board is especially well equipped to handle.” 196 NLRB at 1175.
In my view, the same factors are at work here. An experienced arbitrator selected from
the parties’ established panel may well be ideally suited to resolve such disputes as when to
apply a room check-out credit or what circumstances should give rise to an obligation to provide
a fee to a bell attendant in lieu of a gratuity. By contrast, an arbitrator’s experience and
expertise in the hospitality industry adds nothing to the task of addressing the consequences of
the Union’s utter refusal to negotiate about the majority of the issues covered by the parties’
MOA.23 As another judge has noted in a deferral decision involving “a complete breakdown in
contract renewal negotiations, rather than a routine contract violation,” the Board’s “statutory
remedies available to treat with such issues are far more comprehensive than those available in
arbitration.” AMF, inc., 219 NLRB 903, 912 (1975). That judge’s analysis was also adopted by
the Board. I believe that these considerations apply with equal force to the conduct of the Union

23 Counsel for the Union’s own concise summary of the nature of the issue presented in this
case serves to demonstrate the inappropriateness of arbitration as the means to resolve that
dispute. Thus, she correctly notes that, “[t]he only issue for the arbitrator is whether the parties
agreed to adopt the Sheraton contract or bargain directly about the six issues about which Local
1 is refusing to bargain.” (R. Br., at p. 23.) Resolution of this dispute calls into play the unique
legal and policymaking expertise of the Board, not the practical experience of an arbitrator.
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in the case before me. As a result, the issue presented is not well-suited to arbitration.
In what is perhaps, under the facts of this case, another way of saying the same thing, I
conclude that the Board’s precedents regarding deferral in the context of contract repudiation
also demonstrate that the matter is not suitable for arbitration. Thus, the Board holds that where
a party’s course of conduct “constitutes a rejection of the principles of collective bargaining,”
deferral is not proper. Rappazzo Elec. Co., 281 NLRB 471, fn. 1 (1986). As the Board has
explained, “the Board is not trespassing on forbidden territory when it inquires whether
negotiations have produced a bargain which [a respondent] refuses to honor. The proper
business of the Board is to remedy conduct . . . that amounts to the repudiation of an obligation
under the collective-bargaining relationship.” New Mexico Symphony Orchestra, 335 NLRB
896, fn. 8 (2001).
In the present case, I have already explained my conclusion that the Union’s conduct
constitutes a repudiation of the MOA. This conclusion is well-summarized by counsel for the
hotel, who accurately characterizes the Union’s behavior as follows:
The Union has taken actions and adopted positions demonstrating
in no uncertain terms that it does not consider itself bound by the
parties’ Memorandum. In doing so, it has renounced its collective
bargaining obligations, thereby rendering deferral wholly inappropriate
in this matter.
(CP Opposition to summary judgment motion, p. 8, GC Exh. 1(l).) As the Board has noted,
where a respondent’s actions:
amount to a repudiation of the contract or strike at the very heart
of the collective-bargaining relationship, deferral is not appropriate.
Thus, the Board has stated that it will not defer in instances where the
respondent’s conduct constitutes a rejection of the principles of collective
bargaining. In those instances, it is unlikely that an arbitrator, whose
function is limited to problems of contractual interpretation, would
resolve or remedy, if necessary, allegations of statutory wrongs . . . .
[Internal punctuation and citations omitted.]
United Cerebral Palsy of New York City, 347 NLRB 603, 606 (2006).
Because the Union’s position in this case is patently erroneous and its conduct
represented a repudiation of both the MOA and its statutory obligations to bargain in good faith,
I find that deferral of this matter to arbitration is inappropriate because the issue is not eminently
well suited to that process.
Conclusions of Law
1. The dispute underlying this litigation is not suitable for deferral to the parties’
arbitration process.
2. By repudiating its memorandum of agreement with the Employer and failing and
refusing to bargain over required topics specified by that memorandum of agreement, the Union
has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(3)
and Section 2(6) and (7) of the Act.
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Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. I will also order the Respondent to post the Board’s customary
notice and to provide copies of the notice for posting by the Employer if it so chooses.
At the beginning of this trial, I asked counsel for the General Counsel if, “the only relief
you’re seeking is an order for them to bargain?” (Tr. 16-17.) He responded affirmatively.24 In
their posttrial briefs, neither the General Counsel nor the Employer has sought any additional
relief. Nevertheless, I recognize that the Board and its judges, “may grant such a remedy as will
effectuate the purposes of the Act, whether the remedy is specifically requested or not.”
Willamette Industries, 341 NLRB 560, 564 (2004). [Citations omitted.]
I have given the issue of remedy considerable thought as befits the extent of the Union’s
breach of its bargaining obligations under the Act. I am well aware that additional remedies for
bargaining violations exist, including an order mandating a specific bargaining schedule or
requiring the submission of reports as to the course of such bargaining. On balance, out of
respect for the adversary process, I have decided to defer to the moving parties’ position. They
are best situated to gauge their own needs. I will, however, urge that on final resolution of the
case, the Region’s staff maintain close communication with the parties in order to promptly and
effectively secure the Respondent’s compliance with the Act’s bargaining requirements.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended25
ORDER
The Respondent, Unite Here Local 1, Chicago, Illinois, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Repudiating its Memorandum of Agreement with the Ritz-Carlton Water
Tower Partnership (Jt. Exh. 2).
(b) Failing and refusing to bargain with the Ritz-Carlton Water Tower Partnership
regarding the following topics that are subject to collective-bargaining under
the terms of the parties’ memorandum of agreement: reducing the fee paid
to employees assigned to carving or other specialty stations and changing
the scheduling procedures for such employees; reducing the gratuity paid
to bell attendants for delivery of luggage to vacant rooms; increasing the
work schedule of housekeepers and eliminating their paid 15-minute break;
reducing the payment for making up roll-away beds or sofa beds and limiting

24 Somewhat paradoxically, however, counsel for the General Counsel has characterized
the Union’s misconduct as “egregious.” (Tr. 56.)
25 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the 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 purposes.
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those payments to room attendants only; lowering the room credit reduction
for housekeepers based on the number of check-out rooms per shift;
and paying all new employees at the union contract rate instead of the “Ritz
rate.”
(c) In any like or related manner violating federal labor law.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, bargain with the Ritz-Carlton Water Tower Partnership about the
topics listed in paragraph 1(b) above, and if an understanding is reached,
embody the understanding in a signed agreement.
(b) Within 14 days after service by the Region, post at its union office in Chicago,
Illinois, copies of the attached notice marked “Appendix.”26 Copies of the
notice, on forms provided by the Regional Director for Region 13, after being
signed by the Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspicuous places
including all places where notices to members are customarily 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 members by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by
any other material.
(c) Sign and return to the Regional Director sufficient copies of the notice for
posting by the Ritz-Carlton Water Tower Partnership, if willing, at all places
where notices to employees are customarily posted.
(d) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated, Washington, D.C. November 29, 2011
____________________________
Paul Buxbaum
Administrative Law Judge

26 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.”
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Chicago, Illinois
APPENDIX
NOTICE TO MEMBERS
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 on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT repudiate our Memorandum of Agreement with the Ritz-Carlton Water Tower
Partnership.
WE WILL NOT fail and refuse to bargain with the Ritz-Carlton Water Tower Partnership
regarding the topics that are subject to collective-bargaining under the terms of our
Memorandum of Agreement.
WE WILL NOT in any like or related manner violate federal labor law.
WE WILL, on request, bargain with the Ritz-Carlton Water Tower Partnership regarding the
topics that are subject to collective-bargaining under the terms of our Memorandum of
Agreement, and if an understanding is reached, WE WILL embody the understanding in a
signed agreement.
UNITE HERE LOCAL 1
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
209 South LaSalle Street, 9th Floor
Chicago, Illinois 60604
Hours: 8:30 a.m. to 5 p.m.
312-353-7570.
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Chicago, Illinois
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 312-353-7170.