RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC

National Labor Relations Board - Board Decisions

Aug 14, 2019

368 N.L.R.B. 44 (N.L.R.B. 2019)

368 NLRB No. 44
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 International
Union Local 21. Case 18–CA–151245
August 15, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On May 27, 2016, Administrative Law Judge Sharon L.
Steckler issued the attached decision. The Respondent
filed exceptions with supporting argument, and the Gen-
eral Counsel filed an answering brief. The General Coun-
sel also filed limited exceptions with supporting argument.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear 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
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
2 We shall modify the judge’s remedy, Conclusions of Law, and rec-
ommended Order to conform to our findings and to the Board’s standard
remedial language. We shall also substitute a new notice to conform to
the Order as modified.
We find merit in the General Counsel’s exception that the judge erred
by ordering that Kelli Johnston’s remedy be limited under Oil Capitol
Sheet Metal, Inc., 349 NLRB 1348 (2007). In Oil Capitol, the Board
addressed the burdens applicable to compliance proceedings involving
union “salts.” There is no contention or evidence that Johnston was a
salt, and therefore Oil Capitol does not apply here. Accordingly, we shall
modify the judge’s recommended remedy to include the standard rein-
statement and backpay remedy for Johnston.
The Respondent excepts to the judge’s finding that it unlawfully re-
fused to meet and bargain with the Union in violation of Sec. 8(a)(5) and
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,1 and conclusions, as modi-
fied here, and to adopt the recommended Order as modi-
fied and set forth in full below.2
This case involves allegations that the Respondent com-
mitted violations of Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act (the Act) during the period in
which the parties were bargaining for a successor collec-
tive-bargaining agreement. We affirm the judge’s find-
ings3 and conclusions, with some modifications of her
(1), but it does not argue that the judge’s recommended affirmative bar-
gaining order is improper even assuming the Board affirms the judge’s
8(a)(5) finding in this regard. We therefore find it unnecessary to provide
a specific justification for that remedy. SKC Electric, Inc., 350 NLRB
857, 862 fn. 15 (2007); Heritage Container, Inc., 334 NLRB 455, 455
fn. 4 (2001); see also Scepter v. NLRB, 280 F.3d 1053, 1057 (D.C. Cir.
2002).
3 In the absence of exceptions, we adopt the judge’s findings that the
Respondent violated (1) Sec. 8(a)(1) by telling an employee that all the
Union needs to do is sign the contract and employees will get their raises,
and by threatening the union representative by ordering her, in the pres-
ence of employees, to leave the premises; (2) Sec. 8(a)(3) by refusing to
assign additional work hours as a houseman to Kelli Johnston and by
discontinuing longevity pay increases provided in the expired collective-
bargaining agreement; and (3) Sec. 8(a)(5) by unilaterally discontinuing
the past practices of allowing a union representative to visit hotel prop-
erties and allowing the Union to post notices on the Respondent’s bulle-
tin boards. Also, in the absence of exceptions, we adopt the judge’s dis-
missal of the complaint allegation that the Respondent repeatedly
showed up late and/or left early during bargaining sessions.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
analysis,4 for all but one of the allegations in this case.5 In
addition, for the reasons set forth below, we adopt the

4 For the reasons stated by the judge, we adopt her findings that the
Respondent violated (1) Sec. 8(a)(5) by failing to provide the Union with
information it requested regarding the Respondent’s costs for the Un-
ion’s health proposal for bargaining-unit employees and unreasonably
delaying in providing information regarding the Respondent’s costs for
the Respondent’s vacation proposal; and (2) Sec. 8(a)(1) by telling an
employee that no raises will be given because no contract exists and tell-
ing an employee that she had not received a raise because there was no
contract and because the Union would not agree to a “fair offer.”
In addition, we adopt the judge’s finding that the Respondent violated
Sec. 8(a)(3) by refusing to assign additional work hours as a bartender to
employee Kelli Johnston. However, in so doing, we do not rely on FES,
331 NLRB 9 (2000), cited by the judge, but rather on Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). Moreover, we rely on the judge’s unex-
cepted-to finding that the Respondent violated Sec. 8(a)(3) by refusing
to assign additional work hours as a houseman to Kelli Johnston as ad-
ditional evidence of the Respondent’s discriminatory motivation.
Further, in adopting the judge’s finding that the Respondent violated
Sec. 8(a)(3) by disciplining Graham Brandon, we find that the Respond-
ent failed to timely raise its defense that a grievance resolution resolved
the matter. See SEIU United Healthcare Workers-West, 350 NLRB 284,
284 fn. 1 (2007) (noting that it is well settled that deferral to the grievance
and arbitration process of the collective-bargaining agreement is an af-
firmative defense that must be timely raised in the answer to the com-
plaint or at the trial).
Finally, in adopting the judge’s finding that the Respondent violated
Sec. 8(a)(5) by failing to sufficiently explain the union leave proposal,
we note that the Respondent’s only argument in its exceptions was that
its proposal was a minor change from the union leave provision in the
expired collective-bargaining agreement.
Chairman Ring would not find that the Respondent violated Sec.
8(a)(5) by failing to sufficiently explain its union-leave proposal. Alt-
hough a failure to explain a bargaining proposal may, in some circum-
stances, be evidence of bad-faith bargaining, the Chairman would not
find that it amounts, by itself, to an unfair labor practice. Whether a party
has bargained in bad faith depends on the totality of its conduct. See,
e.g., West Coast Casket Co., Inc., 192 NLRB 624, 636 (1971), enfd. in
relevant part 469 F.2d 871 (9th Cir. 1972). Moreover, relevant Board
precedent appears to be in conflict. A party explains its bargaining pro-
posal to persuade the other side that the proposal is fair and proper, but
the Board has held that an employer bargains in good faith when it “rea-
sonably believes” that its proposal “is fair and proper or that [it] has suf-
ficient bargaining strength to force the other party to agree.” Atlanta
Hilton & Tower, 271 NLRB 1600, 1603 (1984) (emphasis added). Thus,
Atlanta Hilton & Tower stands for the principle that an unexplained pro-
posal may be insisted upon in good faith if a party reasonably believes it
has sufficient leverage to win agreement. On the other hand, in Apogee
Retail, NY, LLC, 363 NLRB No. 122, slip op. at 1 fn. 3 (2016), cited by
the judge, the Board stated that “‘good faith bargaining . . . does require
that parties justify positions taken by reasoned discussions’” (quoting
Blue Jeans Corp., 177 NLRB 198, 206 (1969), enfd. sub nom. Amalga-
mated Clothing Workers of America v. NLRB, 432 F.2d 1341 (D.C. Cir.
1970)). However, because the Respondent does not raise this apparent
conflict in its very limited exception, Chairman Ring leaves resolution
of this conflict for a future appropriate case.
5 We disagree with the judge that the Respondent violated Sec. 8(a)(5)
by making confusing pay proposals with the intent to stall negotiations.
The judge’s finding rests primarily on the pay proposal made for current
employees through spreadsheets and hundreds of pie charts for
judge’s findings that the Respondent violated Section
8(a)(5) of the Act by discontinuing the longevity pay
individual employees and classifications. We agree with the judge that
making proposals in this manner may have been confusing, particularly
in light of inaccuracies or inconsistencies in some of the documents pro-
vided. However, regardless of these shortcomings, we cannot conclude
that the pay proposals submitted in this form rose to the level of wage
proposals that the Board has considered to be “a sham” calculated to im-
pede negotiations in violation of Sec. 8(a)(5). See Tritac Corp., 286
NLRB 522, 523, 542–543 (1987); Billion Oldsmobile-Toyota, 260
NLRB 745, 755–756 (1982), enfd. 700 F.2d 454 (8th Cir. 1983). We
likewise disagree with our dissenting colleague that the submission of
these proposals evinced objective bad faith, even if not intended, in the
circumstances of this case. This is especially true in light of the fact that
the Union did not object to the Respondent’s voluminous proposal but,
rather, sought to bargain over it by asking the Respondent for clarifica-
tions. Further, there is no dispute that the Respondent’s spreadsheets
summarized its pay proposals in a simple, accurate and understandable
manner. We further find that the lack of clarity with respect to the status
of tips in the Respondent’s pay proposal for banquet servers did not in-
dependently violate Sec. 8(a)(5) and does not warrant a different conclu-
sion with respect to the current employee pay proposals. Billion Oldsmo-
bile-Toyota, 260 NLRB at 755–756.
We note that the judge mistakenly found that the Respondent intro-
duced the individual pie charts for each current employee for each year
of the Respondent’s proposed contract during the negotiation session on
March 24; the Respondent introduced the individual pie charts during the
March 16 negotiation session. This minor error does not affect the result
here.
Member McFerran dissents from her colleagues’ reversal of the
judge’s finding that the Respondent violated Sec. 8(a)(5) by tendering
more than 2500 pages of misleading pie charts as wage proposals and a
proposal for banquet servers that cut their compensation and left to the
Respondent’s sole discretion whether they would receive a share of the
service charge for any given event. The pie charts purported to show
individual employee’s “total real wage” or “TRW” by adding in the pay-
ments for breaks, workers’ compensation, bereavement pay, and jury
duty, and showed higher compensation than employees actually earned.
The charts were not only “confusing,” as the judge found, but also con-
tained numerous and errors and inconsistencies and failed to identify the
individual employees or their length of service. Although the Respond-
ent explained elements of the charts and acknowledged certain errors, it
compounded its obfuscation by presenting, remarkably, more pie charts.
The majority suggests a single standard for reviewing wage proposals
for evidence of bad-faith bargaining: that the proposals manifest “‘a
sham’ calculated to impede negotiations.” Such specific intent is not
required, however. Rather, the Board appropriately may decide “on the
basis of objective factors” that a party’s bargaining proposals evince bad
faith. Public Service Co. of Oklahoma, 334 NLRB 487, 487 (2001). Ob-
jectively, the Respondent’s mistake-ridden wage proposal for banquet
servers indicates bad faith. This confusing proposal impeded the basic
process of bargaining, which was made even more difficult by the Re-
spondent’s insistence on retaining sole discretion to decide whether the
servers would share in service charges, and the Respondent’s refusal to
even discuss any parameters it would consider in exercising its discre-
tion. Intended or not, such conduct is inconsistent with the notion of
“good faith” bargaining envisioned by the Act and violates Sec. 8(a)(5).
Cf. Liquor Industry Bargaining Group, 333 NLRB 1219, 1220–1221
(2001), citing McClatchy Newspapers, 321 NLRB 1386, 1388 (1996),
enfd. 131 F.3d 1026 (D.C. Cir. 1997), cert. denied 524 U.S. 937 (1998).
As for the pie chart wage proposals that the Respondent tendered, Mem-
ber McFerran further disagrees with her colleagues’ suggestion that a
party must voice complaints about its bargaining counterpart’s conduct
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC 3
increases set forth in the expired collective-bargaining
agreement and by refusing the Union’s request to meet for
negotiations.
1. The Respondent’s Unilateral Discontinuance of
Scheduled Wage Rate Increases
As managing agent for the Kahler Hospitality Group
(Kahler), the Respondent manages four hotel properties
and one laundry service in Rochester, Minnesota. Before
Kahler purchased these properties in 2013, a different ho-
tel management company, Sunstone Hospitality (Sun-
stone), managed them. Sunstone and the Union were par-
ties to a collective-bargaining agreement effective from
October 1, 2011 through August 31, 2014. When Kahler
took over operations in October 2013, it voluntarily as-
sumed the collective-bargaining agreement, and the par-
ties subsequently agreed to extend the contract until Feb-
ruary 28, 2015.
Appendix A of the parties’ expired collective-bargain-
ing agreement included a wage grid for each property for
each year, organized by job title. For each job title, the
grid set out a specific starting wage, tied to date of hire
and job performed, as well as four specific pay raises, to
be awarded when employees reached identified employ-
ment duration milestones (“longevity pay increases”).
Specifically, the four longevity pay increases became ef-
fective when an employee’s tenure reached 12 months, 24
months, 42 months, and 60 months, respectively.6
When the contract extension expired on February 28,
the Respondent stopped paying the longevity pay in-
creases set forth in Appendix A. For the reasons explained
below, we agree with the judge that the Respondent vio-
lated Section 8(a)(5) by unilaterally discontinuing the lon-
gevity pay increases.
It is clear that, following the expiration of a collective-
bargaining agreement, an employer must maintain the sta-
tus quo of all mandatory subjects of bargaining until the
parties either agree on a new contract or reach a good-faith
impasse in negotiations. See, e.g., Triple A Fire Protec-
tion, Inc., 315 NLRB 409, 414 (1994), enfd. 136 F.3d 727
(11th Cir. 1998), cert. denied 525 U.S. 1067 (1999). Of-
ten, these cases turn on a determination of what the status
quo was at the time that the contract expired. In determin-
ing the status quo in this case, and in finding that the Re-
spondent here unlawfully changed the status quo, we

at the table (or register its dissatisfaction in a particular manner) in order
to later support an unfair labor practice finding. The filing of a charge is
itself a manifestation of such dissatisfaction in most unfair labor practice
cases. She notes, in any event, that the Union pointed out errors and
inconsistencies in the charts each time the Respondent introduced them.
6 For example, a line cook hired at the Marriott Hotel in Rochester on
or after September 1, 2011, would earn $10.41 per hour at hire. After 12
months’ employment, the line cook would receive a raise to $11.34; after
agree with the judge that this case is factually similar to
Wilkes-Barre General Hospital, 362 NLRB 1212 (2015).
In Wilkes-Barre, the Board affirmed the judge’s finding
that the employer violated Section 8(a)(5) by ceasing to
pay longevity-based wage increases after the parties’ col-
lective-bargaining agreement expired. Id. at 1212 & fn. 1.
The judge concluded that, because the agreement did not
address whether the employees would receive longevity
raises post-expiration, the employer had a continuing stat-
utory obligation to maintain the status quo by paying the
longevity-based wage increases after the expiration of the
parties’ contract. Id. at 1216–1217.
Here, as in Wilkes-Barre, the collective-bargaining
agreement did not address whether or not the employees
were to continue receiving longevity pay increases after it
expired. Because the parties’ agreement did not indicate
that the parties intended that the longevity pay increases
would cease at the end of the contract, the Respondent’s
statutory duty to maintain the status quo required it to con-
tinue to pay the longevity increases after the contract ex-
tension expired. See also Prime Healthcare Services-En-
cino, LLC d/b/a Encino Hospital Medical Center, 364
NLRB No. 128, slip op. at 1 (2016) (affirming the judge’s
finding that the language of the expired contract failed to
show that the contract provision regarding anniversary
step wage increases was limited to the term of the agree-
ment).
In addition, we observe that by refusing to pay the lon-
gevity pay increases, the Respondent effectively created a
two-tier wage system. For example, a line cook who had
worked over 12 months when the contract extension ex-
pired would be paid $11.80 an hour. But a line cook who
was hired after the contract extension expired would still
be making $10.41 an hour after 12 months. This wage
“freeze” was a change in employees’ terms and conditions
of employment. See Wilkes-Barre, 362 NLRB at 1217,
1212 fn. 2 (then-Member Johnson concurring).7
Accordingly, when the Respondent discontinued the
longevity pay increases upon contract expiration, it made
a unilateral change in the status quo that it was obligated
to maintain and thereby violated Section 8(a)(5) of the
Act.
24 months, $12.21; 42 months, $13.02; and 60 months, $13.88. A line
cook hired on or after September 1, 2013, initially earns $10.41 per hour;
at 12 months, he or she receives an increase to $11.80; at 24 months,
$12.70; at 42 months, $13.54; and at 60 months, $14.44.
7 We note that, in finding the violation, we find no need to rely on
Finley Hospital, 362 NLRB 915 (2015), enf. denied 827 F.3d 720 (8th
Cir. 2016). Chairman Ring and Member Kaplan express no opinion
whether that case was correctly decided.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. The Respondent’s Refusal to Meet with the Union
The Respondent began negotiations with the Union for
a successor collective-bargaining agreement on January
20, 2015. Between January 20 and September 24, the par-
ties held 11 bargaining sessions.
At the end of the September 24 bargaining session, the
parties scheduled another session for October 20. On Oc-
tober 19, Human Resources Manager Michael Henry sent
an email cancelling this negotiation session, explaining
that the Respondent did not see the need to meet and stat-
ing that “if you bring us something that is significant
enough for us to move off of our last best and final offer
then let us know.” In response to this email, Union Pres-
ident Brian Brandt sent two emails to Henry, on Novem-
ber 4 and 11, requesting further negotiating dates. Henry
sent an email back to Brandt, again stating that the Re-
spondent would not meet with the Union again unless the
Union presented a new proposal.
For the reasons set forth below, we adopt the judge’s
finding that the Respondent violated Section 8(a)(5) by re-
fusing the Union’s request to meet for negotiations. It is
true that parties bargaining for a collective-bargaining
agreement do not have to continue meeting indefinitely
where there is no prospect of agreement. Richmond Elec-
trical Services, 348 NLRB 1001, 1002 (2006) (finding that
by the time the employer had declared impasse, it was rea-
sonable to find that further bargaining would be fruitless);
accord NLRB v. American National Insurance Co., 343
U.S. 395, 404 (1952) (“[T]he Act does not encourage a
party to engage in fruitless marathon discussions at the ex-
pense of frank statement and support of his position.”).
Here, however, the parties specifically agreed at the end
of the September 24 bargaining session to meet again on
October 20. Then, the Respondent waited until the day
before the parties were scheduled to bargain to demand
that the Union present a new proposal for it to go forward
with the scheduled meeting. The Respondent’s last-mi-
nute precondition imposed after a prior agreement to meet
deprived the Union of any opportunity to offer a counter-
proposal. Under these circumstances, we agree with the
judge that the Respondent violated Section 8(a)(5).
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 3.
“3. The following unit is appropriate for the purposes of
collective bargaining 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 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 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.”
2. Substitute the following for Conclusion of Law 5(c).
“(c) telling an employee that no raises will be given be-
cause no contract exists.”
3. Add the following as Conclusion of Law 5(d).
“(d) telling an employee that she had not received a
raise because there was no contract and because the Union
would not agree to a fair offer.”
4. Delete Conclusion of Law 7(d) and re-designate
Conclusions of Law 7(e) and (f) as 7(d) and (e).
5. Add the following as Conclusions of Law 7(f) and
(g).
“(f) Failing and refusing to provide the Union with in-
formation it requested regarding the Respondent’s costs
for the Union’s health proposal for bargaining-unit em-
ployees.”
“(g) unreasonably delaying in providing information re-
garding the Respondent’s costs for the Respondent’s va-
cation proposal.”
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 unilaterally discontinuing longevity pay in-
creases contained in Appendix A of the expired 2011–
2014 collective-bargaining agreement, we shall order the
Respondent to rescind the unlawful change and resume
giving longevity pay increases until an agreement has
been reached with the Union or a lawful impasse in nego-
tiations occurs. We shall further order the Respondent to
make employees whole for any losses sustained as a result
of the unlawful change in the manner prescribed in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), plus interest as set forth in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6
(2010).
Having found that the Respondent unlawfully refused
to hire Kelli Johnston for the houseman position and un-
lawfully refused to assign her additional work hours as a
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC 5
bartender, we shall order the Respondent to offer her the
houseman position for which she applied or, if that posi-
tion no longer exists, a substantially equivalent position,
without prejudice to her seniority or any other rights or
privileges to which she would have been entitled if she had
not been discriminated against. In addition, we shall order
the Respondent to make her whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against her in accordance with Ogle Protection, supra,
with interest computed in accordance with New Horizons,
supra, compounded daily as prescribed in Kentucky River,
supra.
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 to 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 awards to the appropriate calendar
years for each employee.
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) Failing and refusing to bargain with the UNITE
HERE International Union Local 21 (the Union) as the ex-
clusive collective-bargaining representative of employees
in the bargaining unit.
(b) Unilaterally changing terms and conditions of em-
ployment of its unit employees, including by discontinu-
ing longevity pay increases contained in Appendix A of
the expired 2011–2014 collective-bargaining agreement,
discontinuing the past practice of visitation for a union
representative on hotel properties, and discontinuing the
past practice of allowing the Union to post notices on the
Respondent’s bulletin boards.
(c) Refusing to explain or clarify bargaining proposals
when requested by the Union.
(d) Imposing preconditions at the last minute that the
Union must satisfy before it will engage in face-to-face
bargaining.
(e) Failing and refusing to provide or timely provide
information requested by the Union that is necessary for
and relevant to the Union’s performance of its duties as
the exclusive bargaining representative of the bargaining
unit.
(f) Threatening union representatives by telling them,
in the presence of employees, that they cannot access non-
working areas of the facility.
(g) Telling employees that they could have wage in-
creases if their collective-bargaining representative signed
a new collective-bargaining agreement.
(h) Telling employees that they had not received wage
increases because there was no collective-bargaining
agreement and because the Union would not agree to a fair
offer.
(i) Issuing discipline to employees because of their sup-
port for and activities on behalf of the Union or for engag-
ing in other protected concerted activity.
(j) Refusing to assign employees additional hours be-
cause of their support for and activities on behalf of the
Union or for engaging in other protected concerted activ-
ity.
(k) Discontinuing longevity pay increases due under
the expired collective-bargaining agreement because of
employees’ union activity.
(l) 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
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) Before implementing any changes in wages, hours,
or other terms and conditions employment, notify and, on
request, bargain collectively and in good faith with the
Union as the exclusive representative of its employees in
the appropriate unit.
(c) Furnish the Union with the information it requested
concerning the Respondent’s costs for the Union’s two
health care plans for only bargaining-unit employees and
for its vacation proposal.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(d) Resume giving unit employees longevity pay in-
creases as described in Appendix A of the expired 2011–
2014 collective-bargaining agreement and maintain that
practice in effect until an agreement has been reached with
the Union or a lawful impasse in negotiations occurs.
(e) On request of the Union, rescind the unilateral
change to the practice of visitation for a union representa-
tive on hotel properties, and restore the status quo ante that
existed prior to the change until such time it has bargained
with the Union to an agreement or impasse.
(f) On request of the Union, rescind the unilateral
change to the practice of allowing the Union to post no-
tices on bulletin boards and restore the status quo ante that
existed prior to the change until such time it has bargained
with the Union to an agreement or impasse.
(g) Make whole eligible employees in the above-de-
scribed unit for any loss of earnings resulting from the Re-
spondent’s elimination of the longevity pay increases as
described in Appendix A of the expired 2011–2014 col-
lective-bargaining agreement in the manner set forth in the
amended remedy section of this decision.
(h) Within 14 days from the date of this Order, rescind
the unlawful discipline given to Graham Brandon.
(i) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discipline
given to Graham Brandon, and within 3 days thereafter,
notify him in writing that this has been done and that the
discipline will not be used against him in any way.
(j) Within 14 days from the date of this Order, offer
Kelli Johnston the houseman position for which she ap-
plied or, if that job no longer exists, a substantially equiv-
alent position, without prejudice to her seniority or any
other rights or privileges previously enjoyed.
(k) Make Kelli Johnston whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against her, in the manner set forth in the amended remedy
section of this decision.
(l) Within 14 days from the date of this Order, remove
from its files any reference to the refusal to assign addi-
tional work hours to Kelli Johnston, and within 3 days
thereafter, notify her in writing that this has been done and
that the refusal to assign the work hours will not be used
against her in any way.
(m) 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

8 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
backpay award to the appropriate calendar years for each
employee.
(n) 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, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(o) Within 14 days after service by the Region, post at
its facility in Rochester, Minnesota, copies of the attached
notice marked “Appendix.”8 Copies of the notice, on
forms provided by the Regional Director for Region 18,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, 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 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 em-
ployees employed by the Respondent at any time since
February 28, 2015.
(p) 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. August 15, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC 7
______________________________________
Marvin E. Kaplan, 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 fail and refuse to bargain with the UNITE
HERE International Union Local 21 (the Union) as the ex-
clusive collective-bargaining representative of employees
in the bargaining unit.
WE WILL NOT unilaterally change terms and conditions
of employment of our unit employees, including by dis-
continuing longevity pay increases contained in Appendix
A of the expired 2011–2014 collective-bargaining agree-
ment, discontinuing the past practice of visitation for a un-
ion representative on hotel properties, and discontinuing
the past practice of allowing the Union to post notices on
our bulletin boards.
WE WILL NOT refuse to explain or clarify bargaining
proposals when requested by the Union.
WE WILL NOT impose preconditions at the last minute
that the Union must satisfy before we will engage in face-
to-face bargaining.
WE WILL NOT fail and refuse to provide or timely pro-
vide information requested by the Union that is necessary
for and relevant to the Union’s performance of its duties
as the exclusive bargaining representative of the bargain-
ing unit.
WE WILL NOT threaten union representatives by telling
them, in the presence of employees, that they cannot ac-
cess non-working areas of our facility.
WE WILL NOT tell our employees that they could have
wage increases if their collective-bargaining representa-
tive signed a new collective-bargaining agreement.
WE WILL NOT tell our employees that they had not re-
ceived wage increases because there was no collective-
bargaining agreement and because the Union would not
agree to a fair offer.
WE WILL NOT issue discipline to employees because of
their support for and activities on behalf of the Union or
for engaging in other protected concerted activity.
WE WILL NOT refuse to give employees additional hours
because of their support for and activities on behalf of the
Union or for engaging in other protected concerted activ-
ity.
WE WILL NOT discontinue longevity pay increases due
under the expired collective-bargaining agreement be-
cause of employees’ union activity.
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 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.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment, no-
tify and, on request, bargain collectively and in good faith
with the Union as the exclusive representative of our em-
ployees in the appropriate unit.
WE WILL furnish the Union with the information it re-
quested concerning our costs for the Union’s two health
care plans for only bargaining-unit employees and for our
vacation proposal.
WE WILL resume giving unit employees longevity pay
raises as described in Appendix A of the expired 2011–
2014 collective-bargaining agreement, and WE WILL main-
tain that practice in effect until an agreement has been
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reached with the Union or a lawful impasse in negotiations
occurs.
WE WILL, on request of the Union, rescind the unilateral
change to the practice of visitation for a union representa-
tive on hotel properties and restore the status quo ante that
existed prior to the change until such time as we have bar-
gained with the Union to an agreement or impasse.
WE WILL, on request of the Union, rescind the unilateral
change to the practice of allowing the Union to post no-
tices on bulletin boards and restore the status quo ante that
existed prior to the change until such time as we have bar-
gained with the Union to an agreement or impasse.
WE WILL make whole eligible employees in the above-
described unit for any loss of earnings resulting from our
elimination of the longevity pay increases as described in
Appendix A of the expired 2011–2014 collective-bargain-
ing agreement in the manner set forth in the amended rem-
edy section of the Board’s decision.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the unlawful discipline given to Graham
Brandon.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discipline given to Graham Brandon, and WE WILL, within
3 days thereafter, notify him in writing that this has been
done and that the discipline will not be used against him
in any way.
WE WILL, within 14 days from the date of the Board’s
Order, offer Kelli Johnston the houseman position for
which she applied or, if that job no longer exists, a sub-
stantially equivalent position, without prejudice to her
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Kelli Johnston whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against her, in the manner set forth in the
amended remedy section of the Board’s decision.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the refusal
to assign additional work hours to Kelli Johnston, and WE
WILL, within 3 days thereafter, notify her in writing that
this has been done and that the refusal to assign the work
hours will not be used against her in any way.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
back pay awards, and WE WILL file with the Regional Di-
rector for Region 18, within 21 days of the date the amount
of back pay is fixed, either by agreement or Board order,

1 All dates are in 2015 unless otherwise indicated.
a report allocating the backpay awards to the appropriate
calendar 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-151245 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, SE, Washington, D.C.
20570, or by calling (202) 273-1940.
Tyler J. Wiese, Esq. and Nichole L. Burgess, Esq., for the Gen-
eral Counsel.
Karl M. Terrell, Esq. and Arch Y. Stokes, Esq., for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
SHARON LEVINSON STECKLER, Administrative Law Judge.
This case was tried in Rochester, Minnesota, on December 15,
16, and 17, 2015. The UNITE HERE International Union Local
21 (Local 21) filed the charge on April 29, 2015, a first amended
charge filed on August 20, 2015, and a second amended charge
on September 1, 2015.1 (GC Exhs. 1(a)-(f).) The General Coun-
sel issued the complaint on September 3 and Richfield Hospital-
ity, Inc., as managing agent for Kahler Hotels, LLC (Richfield)
filed an answer on September 17. General Counsel issued an
amended complaint on November 25 and Richfield filed an an-
swer to the amended complaint on December 9. Richfield denies
all alleged violations.
The amended complaint (complaint) alleges that Richfield
committed violations of Section 8(a)(1), (3), and (5), all of which
occurred while the parties were bargaining for a collective-bar-
gaining agreement.
The complaint contends Richfield violated Section 8(a)(5) by
showing up late and leaving early for negotiation sessions and
by refusing to meet after November 11 unless the Union pro-
vided a new proposal. The complaint alleges two instances of
failing to provide information, health insurance costs and vaca-
tion costs, in violation of Section 8(a)(5). The complaint also
alleges that two of Richfield’s proposals, one regarding wages
and one regarding union leave, violated Section 8(a)(5). The
complaint included allegations of unilateral changes, elimination
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC 9
of contractual wage increases and changes in past practices of
the Union’s access to the facilities and posting on company bul-
letin boards, in violation of Section 8(a)(5).
The elimination of the contractual wage increases is also al-
leged as a violation of Section 8(a)(3). Related to the unilateral
changes are allegations about statements made that potentially
violate Section 8(a)(1). Lastly, the complaint alleges Richfield
violated Section 8(a)(3) by disciplining employee and shop stew-
ard Brandon and by failing to assign additional working hours to
employee and shop steward Kelly Johnston.
The parties were given a full opportunity to participate in the
hearing, to introduce relevant evidence, to examine and cross-
examine witnesses, and to file briefs. On the entire record, in-
cluding my observation of the demeanor of the witnesses, and
after considering the briefs filed by General Counsel and Rich-
field, I make the following
FINDINGS OF FACT2
I. JURISDICTION
Richfield is a Colorado corporation and a Minnesota limited
liability company engaged in providing hospitality services, in-
cluding the four hotels in Rochester, Minnesota, at issue here.
During the last calendar year, Richfield, in conducting its opera-
tions, derived gross revenues in excess of $500,000 and pur-
chased and received at its Rochester, Minnesota hotels goods and
services valued in excess of $50,000 directly from suppliers lo-
cated outside the State of Minnesota. Richfield admits, and I
find, that Richfield has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Richfield admits, and I find, that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. BACKGROUND
Richfield manages the operations of hospitality properties, in-
cluding the four hotels at issue and a laundry service in Roches-
ter, Minnesota. The four hotel properties in Rochester are: the
Residence Inn; Kahler Inn and Suites; the Marriott; and the
Kahler Grand. The hotels are owned by a corporation. Javon
Bea is the representing chair of the ownership group for the ho-
tels now known as the Kahler Hospitality Group, which hired
Richfield to manage the hotels in Rochester.

2 Although I have included citations to the record to highlight partic-
ular testimony or exhibits, my findings and conclusions are not based
solely on those specific record citations, but rather on my review and
consideration of the entire record for this case. My findings of fact en-
compass the credible testimony, evidence presented, and logical infer-
ences. The credibility analysis may rely upon a variety of factors, in-
cluding, but not limited to, the context of the witness testimony, the
weight of the respective evidence, established or admitted facts, inherent
probabilities, and reasonable inferences that may be drawn from the rec-
ord as a whole. Double D Construction Group, 339 NLRB 303, 303–305
(2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Auto-
motive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed.
Appx. 516 (D.C. Cir. 2003). Credibility findings regarding any witness
are not likely to be an all-or-nothing determination and I may believe that
a witness testified credibly regarding one fact but not on another.
Daikichi Sushi, 335 NLRB at 622.
When a witness may reasonably be assumed to be favorably disposed
to the party, an adverse inference may be drawn regarding any factual
The previous owner of the hotels and textile service group was
Sunstone Hotel Properties (Sunstone). Sunstone and the Union
had a collective-bargaining agreement in place when the Kahler
Hospitality Group purchased the hotels and laundry service
(Sunstone contract). When Kahler Hospitality Group assumed
operations in October 2013, it voluntarily assumed the Sunstone
contract. Richfield also agreed to a 6-month extension of the
Sunstone contract, which delayed the expiration to February 28,
2015.
Michael Henry (Henry), is the managing director of human
resources for Richfield Hospitality for the Kahler Hospitality
Group. Henry reports to the vice president of human resources
for Richfield Hospitality. He has no role in the operations of the
Textile Care Services.
Reporting to Henry are Chad Decker, the safety/benefits man-
ager and retail human resources manager, and Mary Kay Cos-
tello, the human resources manager. (GC Exh. 30; Tr. 45–46.) 3
Decker attended negotiation sessions, starting in February. (Jt.
Exh. 1.) Costello also served on the negotiating team and com-
piled Richfield’s bargaining notes. (Jt. Exh. 1; Tr. 560.)
Richfield’s chief financial officer in Rochester is Leslie
Hohmann. Her office prepares payroll, budgets, monthly finan-
cial reports, and financial calculations regarding the hotels. (Tr.
465–466.) During negotiations, she compiled documents and
helped assemble Richfield’s wage proposals. (Tr. 466.)4
When Richfield assumed operations of the Rochester proper-
ties, the bargaining unit consisted of the hospitality employees
and the Textile Care Services (TCS) employees, who are em-
ployed in laundry services. These employees are represented by
the Union, which has represented these employees for about 40
years. (Tr. 131.) The four hotel properties employ approxi-
mately 300 employees.
The president of the Union is Brian Brandt. Its part-time un-
ion representative is Linda Henry, who previously worked in the
hotels. Brandt asked for bargaining assistance from UNITE
HERE Local 17 (Local 17). He requested Local 17’s president,
Nancy Goldman, act as the lead negotiator. (Tr. 131.) She
agreed and was assisted by Martin Goff, organizing director and
vice president of Local 17 in Minneapolis (Tr. 129).
At the time negotiations officially began in January 2015, the
Union represented the service and maintenance employees at the
question on which the witness is likely to have knowledge. International
Automated Machines, 285 NLRB 1122, 1123 (1987), enfd. 861 F.2d (6th
Cir. 1988). This is particularly true where the witness is the Respondent’s
agent. Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022
(2006). Testimony from current employees tend to be particularly relia-
ble because it goes against their pecuniary interests. Gold Standard En-
terprises, 234 NLRB 618, 619 (1978); Georgia Rug Mill, 131 NLRB
1304 fn. 2 (1961); Gateway Transportation Co., 193 NLRB 47, 48
(1971); Federal Stainless Sink Division, 197 NLRB 489, 491 (1972).
3 The following abbreviations are used throughout this decision: Tr.,
transcript; Jt. Exh., joint exhibit; GC Exh., General Counsel exhibit; R.
Exh., Richfield/Respondent exhibit; R. Br., Richfield/Respondent brief;
GC Br., General Counsel brief.
4 Richfield admits that all of the human resources staff, managers and
chefs discussed herein, are supervisors within the meaning of Section
2(11) of the Act or agents within the meaning of Section 2 (13) of the
Act. (See Jt. Exh. 1.)
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hotels and TCS. In March, Richfield filed a UC petition to sep-
arate TCS from the hospitality group. On April 15, 2015, the
Regional Director issued a decision separating the hotel employ-
ees from the TCS employees’ bargaining unit.5
III. EVENTS RELATED TO BARGAINING AND THE RELATED UNFAIR
LABOR PRACTICES
A. Events in 2014
During the course of 2014, the Union and Richfield met. The
number of times the parties met is controverted. Goldman, Goff,
and Brandt met with Javon Bea and Bill Bunce, on behalf of
Richfield. Richfield presented its “wish list,” with 12 items. It
compared language from the contract in place against Richfield’s
desired changes. (Tr. 132; GC Exh. 2; GC Exh. 3.) For example,
Richfield first examined the language of the Sunstone contract,
which gave pay raises as annual increases and also set pay in-
creases at “service points” of 12 months, 24 months, 42 months,
and 60 months. Richfield instead suggested eliminating the rate
increases at the service points and strictly having annual in-
creases. (GC Exh. 3.) Richfield contended that some of the
changes were necessary to remain competitive in the Rochester
area. (Tr. 181.)
Henry testified generally that these discussions included sep-
arating contracts for TCS from the bargaining unit. He did not
know how many times the parties met but estimated approxi-
mately 8 to 10 times. Henry also stated that compensation of
banquet servers came up in discussions several times but was
nonspecific about when discussions took place and never men-
tioned what the Union’s position, if any, was. (Tr. 535.) 6 Rich-
field presented no bargaining notes for these sessions.
B. Events in 2015
The parties held 11 bargaining sessions, 10 from January
through April, and 1 session in September. (Jt. Exh. 1.)
January 20:
The session began at 10:30 a.m. and ended at 4:50 p.m. Rich-
field was represented by Henry, Paul Jewison (president of
TCS), Carissa Gisi, Chad Decker, and Mary Kay Costello. Local
21 was represented by Martin Goff, Nancy Goldman, and Brian
Brandt. (R. Exh. 6, p. 1).7 At about 12:30 p.m., Local 21 Union
Representative Linda Henry (Linda Henry) joined the negotia-
tions. (R. Exh. 6, p. 5). In addition, union stewards from the
hospitality group and TCS were present. Among the hospitality

5 R. Exh. 15 is the Regional Director’s Decision in Richfield Hospi-
tality, 18–UC–145757 (Apr. 14, 2015).
6 Respondent argues that contract negotiations began in 2014. Given
that Respondent’s official notes begin in January 2015 and Henry’s lack
of certainty about the 2014 negotiations, I find that official negotiations
began in 2015.
7 Respondent’s “official” bargaining notes almost always were typed.
Costello testified that she prepared and kept the notes. Entries sometimes
referenced certain Respondent bargaining members’ notes and led me to
believe that the typed notes are an amalgam of different bargaining com-
mittee members’ notes. See, e.g., R. Exh. 6, p. 59, at item 20, referring
to what was in Chad Decker’s notes.
8 A mandatory subject of bargaining involves wages, hours and other
terms and conditions of employment and must be bargaining if requested.
group stewards attending were Graham Brandon and Kelli John-
ston. (R. Exh. 6, p. 1.)
Richfield’s bargaining notes reflect that Henry started the dis-
cussion by announcing that “we will be working on a separate
agreement for TCS. The work they do is different and as we
move forward, we will be working on separate agreements.” (R.
Exh. 6, p. 1.) He then framed the change as a proposal.
After the parties spent over 2 hours discussing TCS, the Union
said it could not respond to it at that time. Goldman then pre-
sented the Union’s proposal (GC Exh. 23(a)) to the Richfield
representatives. The parties discussed uniforms, training drivers,
sick leave, and pay. Henry proposed another meeting for Janu-
ary 29 at 9:30 a.m. in the same location. Goldman requested two
more copies of Richfield’s proposal, but Henry advised he did
not have a proposal that covered the hotel employees. (R. Exh.
6, pp. 5–6.)
Richfield again raised removing the TCS employees from the
rest of the bargaining unit and placing them in their own unit.
The union representatives rejected the proposal as a permissive
subject of bargaining8 and did not want to discuss it any further.
Goldman accused Richfield of not being prepared and specifi-
cally said the idea of two separate contracts was rejected. Henry
said, “I can respect your ideas, but we are moving forward with
two contracts.” Goldman responded the Union would not and
asked how long it would go on. Henry stated, “I hear you, but
you have the document in front of you that we are moving for-
ward with.” (R. Exh. 6, p.7).
January 29:
The meeting, despite being scheduled at 9:30 a.m., started at
10:33 a.m. Richfield was again represented by Henry, Jewison,
Gisi, Decker and Costello. The Union was represented by Goff,
Goldman, Brandt and Linda Henry. As before, among the union
stewards attending were Graham Brandon and Kelli Johnston.
(R. Exh. 6, p. 10).
Richfield again insisted on discussing separating the laundry
workers from the rest of the unit. Per Richfield’s official bargain-
ing notes, Henry announced, “Moving forward in our discussion
we will be working on a separate agreement for TCS. The vision
we have for the contract is to move forward with a contract for
TCS. We want to share with you what the agreement looks like.”
(R. Exh. 6, p. 10).9 Goff testified that Henry said he would not
negotiate further unless the Union agreed to break up the bar-
gaining unit. (Tr. 133.)
These subjects may be lawfully bargained to impasse. The scope of the
unit, such as separating TCS from the hospitality employees, does not
involve wages, hours or other terms and conditions of employment and
is a permissive subject of bargaining. Permissive subjects may not be
bargained to impasse. Antelope Valley Press, 311 NLRB 459 (1993).
Also see WCCO-TV, 362 NLRB 859 (2015) (if an employer insists on a
change in the description of the unit, the proposal is a permissive sub-
ject).
9 Henry denied telling the Union that Respondent was moving for-
ward with two separate contracts and instead said he was having conver-
sation about two separate contracts. (Tr. 60). I rely upon Respondent’s
bargaining notes as the best evidence of what Henry said.
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC 11
The Union again informed Richfield’s representatives that it
was broaching a permissive subject of bargaining. (Tr. 58–59,
133; R. Exh. 11.) The Union reiterated that removing TCS was a
permissive subject and left negotiations after less than an hour.
(Tr. 133.) Nothing reflects that the Union was given a proposal
for the hospitality group at this session.
February 5:
The negotiations were scheduled to begin at 10 a.m., but Rich-
field arrived at 10:25 a.m. (Tr. 134.)
Arch Stokes, Richfield’s attorney, led Richfield’s team for the
next six sessions. Richfield’s notes for this session are handwrit-
ten and more difficult to understand. More discussion about TCS
and a separate contract and Stokes revealed the plan to have job
clarification/unit clarification. Union, by Goff, said it was re-
jected and it is still a permissive subject. (R Exh. 6, p. 21.) The
Parties set the next three negotiation dates. Richfield’s notes do
not indicate a departure time except for a notation of leave at
“5:04 p.m. (?)” (R. Exh. 6, p. 36).
February 6:
The Union submits its complete contract proposal to Richfield
on either February 5 or before the February 13 meeting. (GC
Exh. 23(b)).
February 13:
The meeting started about 10:30 a.m. The meeting was orig-
inally scheduled for 10 a.m., but Richfield sent an email on Feb-
ruary 12 to the Union, telling them that the meeting would be
delayed until 10:30 a.m. (Tr. 134.) Richfield was represented
by Stokes, Henry, Gisi, Decker and Costello. The union repre-
sentatives at the table were Goff, Goldman, Brandt and Linda
Henry. As before, among the shop stewards present were Gra-
ham Brandon and Kelli Johnston. (R. Exh. 6 at 38).
The Union presented a counter proposal with some tentatively
agreed to language. Stokes said he wanted to address “cosmetic
issues of the contract” to reduce and simplify language. Gold-
man said the Union did not want to change the content, but
Stokes said he would include both substantive and cosmetic
changes. The parties were able to address some items, such as
vacation, to which the parties tentatively agreed. The parties
broke for lunch at 12:36 p.m., and the parties were supposed to
return at 2 p.m.; negotiations resumed at 2:19 p.m. (R. Exh. 6 at.
47.) Goldman requested to leave at 4 p.m.
After lunch, Stokes said Richfield reserved the right to make
certain grammatical changes. (R. Exh. 6 at 47). The parties
started going through articles and appendices. Goldman adds
two additional negotiation topics, insurance and interns. Regard-
ing interns, Goldman asked how many, how often and what
school. Henry stated that they were paid by the guidelines of the
students’ school. Goldman said the Union would provide a pro-
posal.
Sometime during the meeting, the Union made an additional
proposal regarding covering health insurance deductibles and
wage increases. (GC Exh. 2(c).) Goldman said the deductible

10 During his initial testimony, Henry could not recall what TRW
stood for. Henry testified that no one would receive a pay decrease and
on health insurance was unacceptable based upon the wages.
Henry defended the plan. The Union stated it could offer a plan
with a $1200 out of pocket maximum and no issues with out of
network, with an employee assistance program. Stokes told
Goldman to make a proposal and to include the UNITE HERE
plan as well. (R. Exh. 6, p. 50)
February 26:
Per Richfield’s notes, the meeting started at 10:59 a.m. Rich-
field was represented by Stokes, Henry, Gisi, Decker, Costello
and Bill Bunce. Stokes again served as lead negotiator. Local
21 was represented by Goff, Goldman, Brandt and Linda Henry.
Union stewards Brandon and Johnston again were present.
Stokes started the session again with separating TCS from the
hospitality employees in the bargaining unit. He announced that
Richfield filed a unit clarification petition with the Board and the
hearing would likely take place about March 16.
The next topic was the wage and benefit proposal. Goldman
stated the Union wanted a 5-year agreement. Regarding the
health insurance, Richfield’s plan that required deductibles of
$4000 for a single employee and $8000 for a family would cause
employees to seek state assistance. She said that the national
plan was in design. The Local 17 plan, however, provided 100-
percent coverage for employees with fixed rates for 5 years and
no deductibles. Its premium was based upon working 75 hours
per month, with a charge of $490 for single coverage. Stokes
asked that Goldman email the proposal to them. Goldman said
she would follow up with the national plan. Stokes said Rich-
field would need to understand the total hourly cost. (R. Exh. 6
at 53).
Goldman then brought up the wage proposal and increases.
Richfield caucused from 11:30 a.m. until 2:06 p.m. When the
parties reconvened, Stokes stated Richfield, during the caucus,
calculated the cost for assuming the health care deductibles.
Henry identified the number of employees who had single or
family coverage. Henry announced the cost to Richfield would
be $1.154 million and rejected the Union’s proposal.
The parties reviewed the articles and had some items marked
as tentative agreements. The Union requested a 2-hour caucus on
the morning of the next meeting. The meeting ended at 5:45 p.m.
February 27:
The meeting began at 1:35 p.m. (R. Exh. 6 at 73). The Union
submitted a proposal about probationary period and classifica-
tions. (Tr. 152; GC Exh. 23(d).)
Late in the meeting, the parties began to discuss wages. Rich-
field provided “pie charts” regarding wages for the employee
members of the negotiating team. Richfield says the pie charts
reflect current employees’ wages. On each chart itself, “total
real wage,” or TRW, was presented.10 The pie charts included
in the pay calculation time the employer pays for breaks, workers
compensation, and wages for bereavement leave and jury leave,
which ultimately changed an employee’s effective hourly wage
rate. Thus, a base pay may be one rate, but the ultimate “TRW”
will be higher. In response to the pie charts, the Union asked at
the charts “primarily” reflect how each employee’s wages and benefits
would apply. (Tr. 77, 482–483; GC Exh. 6(g).)
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
least twice for Richfield’s proposal on floor and ceiling of the
wages. (R. Exh. 1 at 18–22). When the Union expressed con-
cerns about the pie charts’ accuracy, Richfield agreed to provide
a second set of pie charts. The parties continued to proceed
through Richfield’s proposals in order of its items.
March 16:
Goff testified that the meeting was scheduled to begin at 9:30
a.m. and Richfield arrived at about 10:10 a.m. (Tr. 135; R. Exh.
6, p. 77.) Richfield was represented by Stokes, Henry, Bunce,
Gisi, Decker and Costello. The Union was represented by Goff,
Goldman, Brandt and Linda Henry. Among the union stewards
attending were Brandon and Johnston. (R. Exh. 6 at 73). Also
in attendance was a mediator from the Federal Mediation and
Conciliation Service.
Richfield began with an updated agreement and a cover sheet
to its February 27 proposal. Richfield presented detailed discus-
sion about its wage rates. The alleged cover sheet also stated that
Richfield did not agree to any further extension of the Sunstone
agreement. (R. Exh. 6, p. 78). Henry contended that he ex-
plained Richfield’s position on wages, including the results of a
wage survey that it conducted. (Tr. 506; R. Exh. 6, p. 78.) Henry
represented to the Union that no employees would have their
wages decreased, except for banquet servers. Regarding the ban-
quet servers pay, a new hire would start at $13.00 and those who
were already employed by Richfield would be “adjusted to
$15.00 per hour.” (R. Exh. 6, p. 78.)
Although some of the discussion related to TCS employees,
most of the discussion related to the current employees at the
hotels and their pay. Stokes said the Union would be provided
pie charts for all jobs so that the Union could see economics.
Goff asked whether he meant 400 pie charts and Stokes an-
swered affirmatively. (R. Exh. 6, p. 78).
When questioned further by Goldman about the pay and es-
tablishment of a two-tier system, Stokes said Richfield was com-
peting with nonunion hotels and it was difficult to predict reve-
nues. (R. Exh. 6, p. 80). Henry and Stokes discussed the wage
survey. However, Goldman asked whether the wage survey
asked beyond wages—vacation, insurance, sick time, holidays
and compensation packages. Henry offered that 40 percent of
the hotels in the survey do not offer health care. He never an-
swered the remainder of the question but shifted to what the em-
ployees at Richfield received. Goldman said it was the cost of
doing business and questioned why everyone on the pie charts
had jury duty included. (R. Exh. 6, p. 81). Stokes stated that no
other hotel in the market was union, which placed Richfield at a
competitive disadvantage. He further stated the pie charts were
made to ensure Richfield got the best associates. (R. Exh. 6, p.
82). After a little more discussion, Stokes emphasized that this
was Richfield’s demand. (R. Exh. 6, p. 83).
Regarding competitiveness, Goldman argued that getting a 1-
percent increase in 5 years was not competitive as insurance was

11 The Union also objected to Richfield’s proposal for employee per-
formance reviews due to subjectivity and that the form did not fit all job
classifications. (Tr. 162–163; GC Exh. 19.) Regarding customer service
on the “Compassionate” scale, the Union stated that some classifications,
such as dishwashers, would not see guests, compared to servers and
costly. After some discussion about unionization in general in
Rochester, the parties caused from 11:45 a.m. to 12:34 p.m.
When the meeting resumed, Goldman asked about several em-
ployee pie charts and the assumptions underlying the charts. In
an example, Goldman asked whether an on-call banquet server
received pension and that the chart included Richfield’s payment
for taxes and workers’ compensation. (R. Exh. 6, p. 85–86.)
Hohmann, present to explain the charts, stated that the pension
was a pooled amount that could not be broken down by each
worker. Brandt asked if the Union would receive a 5-year his-
tory and Stokes said yes. (R. Exh. 6, p. 86.) Goff pointed out
that the uniforms and benefits, included in the pay, were write-
offs for Richfield. (R. Exh. 6, p. 87.)
The parties broke for lunch for an hour. Upon resumption,
several banquet servers, who would be affected by changes in
the service charges, attended. Richfield presented contradictory
points of view on the service charge, which traditionally was
paid to the banquet servers. Richfield proposed to do away with
the service charge that banquet servers traditionally received.
However, Richfield would keep the service charge. (Tr. 169.)
Acceptance of this proposal would effectively cut banquet serv-
ers’ pay up to 50 percent. Although Stokes was the main nego-
tiator on that day, Bunce stated that Richfield would, at times,
decide if part of the service charge was attributed to employees.
(Tr. 169.) Stokes said if a service charge was levied, it would go
to the servers. Goldman asked, how would the Union be able to
monitor this proposal. Stokes said members would have to ask.
Goldman pointed out that Richfield’s proposal said no service
charge to servers, and per Richfield’s proposal, they would re-
ceive a flat rate of $13 per hour. (R. Exh. 1 at 31–32). Bunce
explained that the company would take the money meant for the
service charge. (R. Exh. 1 at 30). Stokes said that Richfield
needed flexibility in this matter. (R. Exh. 6, p. 93). Goldman
said she was not sure what Richfield was doing with this pro-
posal. Henry stated flatly, “The Banquet team sitting here, they
are taking a pay cut.” (R. Exh. 6, p. 94.)11
Regarding health insurance, Goldman asked if Richfield had
another offering. Henry stated that’s what was offered. Gold-
man said the Union had three plans. Goldman presented two
plans. One of the plans included fixed plan costs, would require
85 hours of service per month, and a third-party administrator in
a self-insured plan. At the end, Stokes said they would study the
health care proposal and Richfield would attempt to create 400
pie charts for the next meeting. The meeting ended at 3:36 p.m.
(R. Exh. 1 at 32–33.)
March 24:12
The meeting was scheduled to begin at 9:30 and Richfield
showed up at 10:45 a.m. (Tr. 135–136-Goff; R. Exh. 1 at 33.)
After discussing some side agreements, at about 12:10 p.m.,
Richfield requested a 20-minute caucus to clean them up. In-
stead of returning at 12:30 p.m., the 20-minute break turned into
bartenders who would see guests. It pointed out other classifications,
such as cooks, could add to the efficiency of the hotel, but others could
not. The result would be that some employees would receive low or no
scores, which could affect employees’ wage increases. (Tr. 163.)
12 Richfield’s handwritten notes for this date are difficult to decipher.
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC 13
2:40 p.m. and nothing was changed on the side agreements. Ac-
cording to Goff, the Union tried to reach Richfield during that
time without success. (Tr. 139.) However, notes reflect the par-
ties reconvened at 2:15 p.m. (R Exh. 1, p. 37.) A number of
sections were marked as tentative agreements and some discus-
sion involved cleaning up contractual language.
The parties met for 30 to 40 minutes when the parties broke
for caucuses. The caucus started at about 3:30 p.m. (R. Exh. 1,
p. 39.) The Union stated it had to leave at 4:00 p.m. that day.
Despite its plans to leave, the Union waited for Richfield’s rep-
resentatives to return to the bargaining table. After making sev-
eral calls to one of Richfield’s secretaries, the Union waited until
about 4:15 p.m. (Tr. 140.)13
Henry testified that, during the caucus, Richfield was “work-
ing feverishly” to finish the changes. He also testified that dur-
ing the caucus Stokes “kept in touch” with Goldman about the
delays. Henry, however, never stated how long the caucus actu-
ally took. Further no one, including Stokes, corroborated that
Stokes kept in touch with Goldman. Lastly, he did not address
what happened when he presented the Union with last, best and
final offer. (Tr. 527–529.)
As the union representatives decided to leave, Henry handed
them a copy of what Richfield called its “last, best and final of-
fer.” (Tr. 73–74, 140; GC Exh. 6(g).) The union representatives
were in the hallway on their way to the elevator and some may
have already been in the elevator. The proposal was 150 pages,
signed by Richfield’s representatives, including management
representatives for TCS. Appendices A and B of Richfield’s
March 24 offer included, for 14 pages, its Appendix A wage pro-
posal. However, that proposal only addressed the Marriott, the
Kahler Grand Hotel and the Kahler Inn & Suites.
In addition to the 14 pages of the wage proposal, the proposal
included more pie charts for a number of positions. (Tr. 78, 141.)
The pie charts covered information on each of approximately
450 workers. (Tr. 165–166.) The box included pie charts for
TCS as well. (Tr. 166.) Each employee’s chart covered a 5-year
period and could be as long as 13 pages. The pie charts reflected
“total real wages,” and went up for some employees over the
years while others showed a loss. The pie charts included pay-
ments for bereavement and jury duty, which Richfield admitted
in hearing was not accurate.
To determine what the pay would be for a particular position
of a period of 5 years, one would have to look at the pie chart for
each position for each year, with the base pay listed, and dis-
cussed “nonproductive work time,” such as workers’ compensa-
tion and uniform allowance, health and welfare cost per hour, to
give a total real wage per productive hour of $18.60. (GC Exh.
6(g), p. 96.) The same process was repeated on a separate page
for 2016, with an hourly rate of $11.21 and eventually reaching
a total real wage per productive hour of $18.77. (GC Exh. 6(g),
p. 98.) For 2018, the base pay was listed on the pie chart as

13 Kelli Schroeder testified to similar events on April 28, but her bar-
gaining notes for this session corroborate Goff’s testimony that the union
negotiating team waited over 2 hours, until 5:26 p.m. (R. Exh. 1, p. 39.)
14 Richfield tried to adduce evidence that the pie charts were included
in TCS ‘s collective-bargaining agreement. This agreement was negoti-
ated in the summer of 2015, after the Regional Director’s UC decision.
$11.32 and, after adding in all the calculations per hour, includ-
ing pay that an individual would not receive, like workers’ com-
pensation, the total real wage per productive hour was $18.94.
(GC Exh. 6(g), p. 100.) The same process was repeated on sepa-
rate pages for 2018, 2019, and 2020. (GC Exh. 6(g), p. 101–
106.)
Henry said that the Union was told on many occasions to show
the pie charts to employees so that employees could evaluate the
pay proposal. (Tr. 78.) In addition, Richfield sent individual no-
tices to employees to talk to the Union about their pie charts. (Tr.
78; GC Exh. 9.)14
April 16:
The meeting was scheduled to start at 10 a.m. (Tr. 136.)
Schroeder’s notes reflect that the meeting started at 10:35 a.m.,
when Richfield representatives arrived (R. Exh. 1, p. 40; R. Exh.
6, p. 135–10:33 a.m.) Representing Richfield were Henry, Pat-
rick Short, Chad Decker and Costello. Stokes was not present.
The Union was represented by Goldman, Brandt, Linda Henry,
and Goff. Union stewards present included Schroeder, Brandon,
and Johnston. The Federal mediator also attended.
Goldman began with some issues regarding overtime and
asked the reason why the hotels were not going to receive it.
Henry stated it was in “our best interest to do that.” (R. Exh. 6,
p. 136.).
Regarding health insurance, Goldman said she provided two
proposals and Richfield did nothing. Henry said he sent her
charts. Henry said the proposal would cost $2.70 on every hour
paid, and it would reflect a cost of over $1.2 million to Richfield.
They argued over what was covered. (R. Exh. 6, p. 137.)
Moving to wages, Goldman asked about the vacation. She
stated that, although it was accepted as a proposal, she wanted to
know the additional cost due to the change over the years. (R.
Exh. 6, p. 137.) Henry’s response: “This is designed to support
retention of our employees.” Goldman accused Henry of not
evaluating the cost of the proposal. Henry did not present any
costs. The parties broke and resumed at 12:05 p.m. (R. Exh. 6,
p. 138.)
Upon resumption, the Union presented a counterproposal.
Goldman reviewed the counteroffer. The Union rejected the
wage plan in Appendix A of Richfield’s proposal but accepted
the start rate for new hires and proposed a one-time bonus. (Tr.
233; GC Exh. 23(e); R. Exh. 6, p. 139–140.)
The parties broke for lunch and caucus at 12:40 p.m. and were
supposed to reconvene at 2 p.m. Richfield’s notes contend that
Henry went in alone at 1:50 p.m. (Tr. 233; R. Exh. 6, p. 140.)
However, Goff testified that Richfield representatives left early
that day without warning.
About 40 to 50 minutes later, Brandt called Henry to ask if he
was returning. Henry said Richfield was done for the day and
was not returning. (Tr. 142.) However, Linda Henry stated that
Respondent contended the agreement was relevant because TCS was in-
itially part of the bargaining unit and the parties reached an agreement,
which demonstrates its good faith in bargaining. I decline to generalize
that the separate negotiations for the TCS collective-bargaining agree-
ment during the summer of 2015 demonstrate good faith with the hospi-
tality group.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Henry came to the caucus about 2 p.m., briefly discussed Rich-
field’s recent changes on union posting and union access to the
facilities, then closed the negotiations for the day. Based upon
Linda Henry’s testimony, I find that Henry likely concluded ne-
gotiations by 2 p.m.
April 28:
Henry was Richfield’s chief negotiator. Others attending for
Richfield were Patrick Short, Decker, and Costello. The Union
was again represented by Goldman, Brandt, Goff, and Linda
Henry. Union stewards attending included Schroeder, Brandon,
and Johnston.
The meeting began at 10:40 a.m., and apparently Richfield
was 40 minutes late. Henry stated that items involving vacation
structure needed clarification, but the remainder was rejected,
and Richfield was sticking with its “last best and final” offer. (R.
Exh. 6, p. 142.) Goldman protested and said that they needed to
review and discuss the proposals line by line. Henry said they
had taken the time to go over and discuss the proposal. Goldman
said that not all of the issues had to do with money. Henry said
Richfield understood the Union’s proposals. Some of the items
were briefly discussed. Goff stated that Richfield was required
to go through the Union’s counteroffer line by line. Henry asked
if they were requesting information and Goldman reminded him
of the request made 2 weeks before, to which the Union received
no response. Henry said he did not understand the Union made
an information request. Goldman said that Richfield put together
a proposal and “toss this last best and final at us at 5:30 while we
waited 3 hours to get it. Then trying to set meeting dates . . .”
Goldman then pointed out that the pie charts were still not cor-
rect. (R. Exh. 6, p. 144.) After some invectives, Goldman again
asked for the quantification of the vacation cost and Henry again
said he did not recall the request.
The rest of Richfield’s notes for that day reflect that Goldman
displayed an angry tone. It does not say, however, when the
meeting ended. (R. Exh. 6, p. 147.) Goff testified that Richfield,
similar to April 16, left for a caucus. Brandt called Henry and
Henry advised Brandt that Richfield was done for the day. (Tr.
143). Goff testified that the parties never had a “deep discus-
sion” of the Union’s proposals because Richfield went into a
caucus. (Tr. 233.)
September 24: After Richfield requested another meeting, the
parties met on this day.
Henry, Short, Decker and Costello represented Richfield. The
Union was represented by Goff, Goldman, Brandt and Linda
Henry.
Henry testified that the Union did not make a proposal any
different than what it presented in April. (Tr. 542). However,
the Union maintained it made a counter proposal, which is re-
flected in Richfield’s bargaining notes. (R. Exh. 6, p. 150; GC
Exh. 23(f).) The Union presented a number of proposals as well
as rejected some of Richfield’s proposals.
The Union’s counterproposal detailed a number of issues, in-
cluding: temporary employees; proposed an average of 20 hours

15 This particular set of Richfield’s bargaining notes also had high-
lights for strategy. For health insurance, a statement of leaving health
per week for insurance coverage instead of Richfield’s proposed
30 hours per week; reduce the retention of disciplinary action
from 18 months to 12 months; reject changes to deletion of daily
overtime; rejected Richfield’s proposal to eliminate free meals
for staff; demanded to discuss vacation pay and its quantifica-
tion; proposed tip adjustments; proposed an 80/20 split between
Richfield and employees in insurance premiums and reimburse-
ment of deductibles and added a proposal to provide a 30-day
notification for a re-opener should an insurance policy change.
(R. Exh. 6, p. 150–154.).
Regarding pay, the Union rejected the banquet hourly rate and
said overscale banquet employees should be paid the same as
others in their classification.
Richfield’s bargaining notes reflect that some issues were left
unsettled with the Union waiting for a proposal from it or some
clarification. Goldman asked for clarification on language re-
lated to leave. The most significant of the issues was the health
insurance plan. Henry said that he was looking to find a plan
with 100 percent coverage on preventative care and a prescrip-
tion plan and still had nothing concrete to present. (R. Exh. 6, p.
154.)15
Clarification was needed regarding Richfield’s plan to buy out
vacation hours. Goldman pointed out that the proposal did not
include language about reducing the number of hours an em-
ployee could be paid to cash out vacation instead of taking it.
She also pointed out that Richfield might need to add language
to clarify time off requests. (R. Exh. 6, pp. 153–154.) Goldman
also reiterated that she made an information request for quantifi-
cation of vacation costs and never received it. Now Henry stated
it was a moving target. Goldman said the Union would like some
kind of a range, “what it is worth this moment in time.” (R. Exh.
6, p. 149.)
At the conclusion of the meeting, the parties had agreed to ne-
gotiate on October 20. That meeting did not take place.
On October 19, Henry emailed Goldman and canceled the
meeting for the following day. The email stated:
After very careful review of the union’s counter proposal
presented at our September 24th, 2015 meeting. There is
nothing we have seen and that you have said over the past
few months of negotiations that dictates quid-quo-quo. We
have seen your opposition to the proposed changes to tighten
up the effective operation of the hotels and to make us more
competitive in the Rochester market and with the Rochester
competition. As we continue to manage in the competitive
Rochester market we must make changes to impact the fact
that we are the only union hotels.
We went through each of the line items and our responses
are attached. Based on the status of the negotiations and the
fact that you have not given us any significant reason to
change our proposal we do not feel the need for an additional
meeting to discuss the same things we have already discussed
several times over the last several months. I f you bring us
insurance as an open item was not attributed to anyone and followed a
comment by Goldman. (R. Exh. 6, p. 154.)
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC 15
something that is significant enough for us to move off of
our last best and final offer then let us know.
(GC Exh. 13.)
On November 4, Brandt sent Henry an email requesting further
dates for negotiations as the Union made several proposals that
should be discussed. (GC Exh. 12.) On November 9, Brandt
sent a second email, again asking for dates and deadlining Henry
for a response by November 12. (GC Exh. 13.)
On November 11, Henry responded to Goldman, Goff, and
Brandt via email:
Hello Brian,
I have attached a copy of the Hotel’s response to the Union
proposal forwarded below a copy of the email that was sent to
you, Nancy, and Martin responding to all the proposed items
presented to us at our previous bargaining session.
As indicated in the final paragraph of that email. We are willing
to meet with you and the rest of the team when you have given
us a significant reason to do so. That is, presenting something
different from what you have, and we have discussed at length
over the past several months with you and your team.
As per your email you are not presenting anything further or
different that would encourage or force us to change our posi-
tion. Furthermore, we have responded to all your proposals in
our meetings and also in writing, with clarification on items
you or the team had.
If there are changes you would like to present that will assist us
in tightening up the effective operation of the hotels and will
contribute to the hotels being more competitive in the Roches-
ter market. We look forward to discussing them.
For each item, Henry stated Richfield “ heard . . . .and under-
stood” the Union’s position but adhered to its previous pro-
posals. (GC Exh. 14.) Goldman responded, asking if the nego-
tiation session scheduled for the following day was canceled.
Henry confirmed that the meeting was canceled. (Tr. 111–112;
GC Exh. 11.)
C. Allegations Regarding Bargaining Conduct
1. Beginning January 29 and continuing, Richfield
repeatedly showed up late and/or left early during
bargaining sessions (Complaint ¶12(a))
(a) Parties’ positions
General Counsel concentrates on Richfield leaving early or
showing up late. Goff testified that Goldman rebuked Richfield

16 Much of Henry’s direct testimony here was in response to leading
questions, such as, “And please explain . . . specifically what Martin Goff
said about his desire to leave before 5 o’clock, and usually around 4
o’clock every day.” (Tr. 523–524.) The questions frequently gave broads
hints and suggestions about the answer without foundation, or the answer
was contained within the question. When leading questions on direct
examination coached the witness to specific answers, the responses were
not credible.
17 Stokes’ responses to questions, including those on direct, were at
times rambling or generalizations. When General Counsel asked
for its tardiness and timeliness. These rebukes went unan-
swered. (Tr. 137.) Other than the February 13 email, Richfield
never advised the Union before it was late. (Tr. 137.)
General Counsel’s brief calculates that Richfield was late to
start meetings on eight occasions, for a total for almost 7 hours.
Regarding leaving early, most of its testimony was left uncon-
tradicted, particularly as Goff said that Richfield’s March 24 pro-
posal was essentially unchanged from prior proposals. General
Counsel cites Regency Service Carts, 345 NLRB 671, 672
(2005); and Golden Eagle Spotting Co., 319 NLRB 64, 77–81
(1995), enfd. 93 F.3d 468 (9th Cir. 1996). In addition, it states
Richfield’s conduct was more egregious than the employer in
Beverly Enterprises, 310 NLRB 222, 238 (1999).
Richfield contends that no violation took place because the
parties had extensive negotiations, with 11 sessions in 2015 and
“three significant meetings in 2014.” (R. Br. at 13.) Richfield
suggests that not being timely for negotiations is “the nature of
the beast.” Id. Richfield says every party had its say and no
surface bargaining allegation has been made. Richfield cites no
case law for its position.
When asked during direct examination “whether the company
was ever late for negotiations,” Henry stated he did not know
how Richfield could be late because the meetings were on the
hotel property. This statement is incredulous as a person could
be within a hotel property, yet not in the same portion of the
property, much less the same room. Henry then segued in the
same testimony that Richfield requested consecutive dates for
negotiations, which the Union rejected. When directed to dis-
cuss whether Richfield was late, Henry answered the leading
question, “We were not late.” (Tr. 522–523.)16 This testimony
is not consistent with Richfield’s bargaining notes, which reflect
that Richfield was tardy. (R. Exh. 6.) Due to the leading ques-
tions and inconsistencies with Richfield’s own notes, I do not
credit Henry’s testimony of whether Richfield was late for nego-
tiations.
Stokes,17 who led six negotiation sessions in February and
March, testified generally that sometimes Richfield would be
late and sometimes the Union would be late, particularly because
Goldman drove to Rochester from Minneapolis. (Tr. 657–659.)
He then specified that Goldman said on March 24 that she could
not stay late, and Richfield was spending time correcting the pie
charts. (Tr. 663.) Richfield’s bargaining notes again do not cor-
relate with this testimony. Further, the evidence shows the Un-
ion disclosed when it had to leave early, such as March 24, or
late and when it requested time for caucuses. Stokes further
claimed the parties would communicate about timing issues
through emails. Richfield produced no emails to support this
claim.
questions that only required a “yes” or “no” answer, he insisted on giving
more information because he swore to tell the truth, the whole truth and
nothing but the truth. He was instructed several times that Respondent’s
attorney could clarify his answers on redirect examination and failed to
heed the warnings. When given the opportunity to pursue redirect, his
co-counsel stated that he thought Stokes said everything he intended to
say. I find that he intended to frustrate the cross-examination process
and refuse to answer those questions that could be damaging to his role
as a negotiator in this matter. His testimony therefore is of little value.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Analysis
The bargaining notes have been the best evidence of the pat-
terns of attendance. Richfield was frequently tardy and left
early. It did not keep the Union informed about its delay, but at
the same time, it was not as extreme as the Union presented.
Section 8(a)(5) of the National Labor Relations Act makes it an
unfair labor practice for an employer “to refuse to bargain col-
lectively with the representatives of his employees....” 29
U.S.C. § 158(a)(5). Section 8(d) of the Act defines the duty to
bargain collectively as the mutual obligation of the employer
and Union “to meet at reasonable times to confer in good faith
with respect to wages, hours, and other terms and conditions of
employment, or the negotiation of an agreement....” 29 U.S.C.
§ 158(d). . . . Dilatory and delaying tactics that undermine
the process of collective bargaining are indicative of bad faith
bargaining. See Kobell v. Paperworkers, 965 F.2d 1401, 1408
(6th Cir.1992); see also Radisson Plaza Minneapolis v. NLRB,
987 F.2d 1376, 1382 (8th Cir.1993); A.H. Belo Corp. v. NLRB,
411 F.2d 959, 968 (5th Cir.1969).
Calex Corp. v. NLRB, 144 F.3d 904, 909 (6th Cir. 1998), enfg.
Calex Corp., 322 NLRB 977 (1997). Based upon Calex, supra,
a pattern of purposeful delay would indicate bad faith. The facts
in Calex are more extreme than presented here: The pattern of
delay included canceling meetings and refusing the union’s re-
quest for additional meetings. The Board also declined to find a
violation for an employer’s lead negotiator showing up late in
Houston County Elec. Co-op., 285 NLRB 1213, 1215 (1987).
The parties negotiated 55 sessions and the lead negotiator was
often tardy about 10 to 20 minutes. The Board found that the
delay did not significantly disrupt bargaining. Id.
However, in Beverly, 310 NLRB at 239, the union negotiating
team waiting over 4 hours for the employer representatives, who
were supposed to provide certain information and failed to do
that as well. The employer could have informed the union of
problems that the chief negotiator had with travel but failed to do
so. Given the other bad-faith actions of the employer, the ad-
ministrative law judge found the employer violated the Act by
being late and deliberately not notifying the union.
Although I agree that Richfield was extraordinarily rude, the
level of the offense does not rise to the level of the general con-
duct in the cases cited by General Counsel. I therefore recom-
mend that this allegation be dismissed.
2. Bargaining proposals and Section 8(a)(5) of the Act
General Counsel maintains that Richfield violated Section
8(a)(5) with two proposals: wages, with the pie charts, and union
leave. In discussing these allegations, I will provide an overview
of applicable law, provide additional facts regarding each pro-
posal, and give my analysis.
(a) Applicable law
Parties, under Section 8(a)(5), have an obligation to engage in
negotiations “‘with an open and fair mind and a sincere purpose
to find a basis for an agreement.’” Houston County Electric Co-
operative, 285 NLRB 1213 (1987), citing NLRB v. Herman

18 No negotiations took place on March 6. (Jt. Exh. 1.)
Sausage Co., 275 F.2d 229, 231 (5th Cir. 1960). The Board usu-
ally does not sit in judgment of the substantive terms, but instead
oversees the process to determine that the parties are making a
sincere effort to reach an agreement. Houston County, supra,
citing Rescar Inc., 274 NLRB 1, 2 (1985). Also see U.S. Ecology
Corp., 331 NLRB 223, 225–226 (2000), enfd. 26 Fed. Appx. 435
(6th Cir. 2001) (discussing regressive proposals).
However, “[s]pecific contract proposals may be considered in
determining whether a party bargained in bad faith.” Liquor In-
dustry Bargaining Group, 333 NLRB 1219, 1220 (2001), affd.
50 Fed. Appx. 444 (D.C. Cir. 2002), citing Reichhold Chemicals,
288 NLRB 69 (1988), enfd. 906 F.2d 719 (D.C. Cir. 1990). The
Board’s analysis objectively examines whether the demand is
“clearly designed” to frustrate reaching an agreement. Id. A
proposal found to be unrealistically harsh or extreme may be ev-
idence “that the party offering them lacks a serious intent to ad-
just difference and reach an acceptable common ground.” Liq-
uor Industry, 333 NLRB at 1220, citing A-1 King Size Sand-
wiches, Inc., 265 NLRB 850, 858 (1982), enfd. 732 F.2d 872
(11th Cir. 1984), cert. denied 469 U.S. 1035 (1984). Although
an employer may propose to retain control over certain issues, a
proposal that comprehensively seeks to preempt the Union’s
statutory role as bargaining representative may indicate bad
faith. Liquor Industry, 333 NLRB at 1220–1221.
In addition, to meet the requirement of good-faith bargaining,
parties must “justify positions taken by reasoned discussions.”
Unique Thrift Store, 363 NLRB No. 122, slip op. at 1 fn. 3
(2016), citing Blue Jeans Corp., 177 NLRB 198, 206 (1969),
enfd. sub nom. Amalgamated Clothing Workers of America v.
NLRB, 432 F.2d 1341 (D.C. Cir. 1970) (internal quotation omit-
ted). “[F]ailure to define, explain or advocate a position”
demonstrates a want of good faith. Palestine Coca Cola Bottling
Co., 269 NLRB 639, 645 (1984).
(b) Wage proposals
The complaint alleges that, since February 27, Richfield vio-
lated Section 8(a)(5) by offering an obscure and contradictory
wage proposal, which would allow Richfield to have unilateral
control over the wages. It also alleged that Richfield refused to
answer questions about the proposal. The effects of the proposal,
according to the complaint, would be to make the proposal im-
possible for the Union to enforce. Lastly, Richfield directed part
of the information provided to the Union, in the form of pie
charts, was not consistent with its “last, best and final” offer.
Two portions of wage negotiations are at issue: The current
employees and the banquet employees.
Hohmann also testified about the “last, best and final offer”
contained in GC Exh. 6(g). She stated that her understanding
was Schedule A was the proposed starting wages for employees.
Richfield prepared an Excel file for all employees who were on
the payroll effective March 1. (Tr. 469; R. Exh. 3.) Hohmann
testified that the spreadsheet was prepared for “March 6” meet-
ings.18
Hohmann noted on the first page of the spreadsheet: “Re-
quested by L21 for representative wage by current union em-
ployee as of 3/1/15.” (R. Exh. 3; Tr. 474.) The Excel spreadsheet
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC 17
laid out information on each employee, start date, position, prop-
erty, proposed pay rate for years 2015 through 2020, and percent
changes for each of those years. It also contained a column for
Hohmann’s notes, such as red-lining, or holding the pay at the
same level, for certain employees. It also contained wage in-
creases for the TCS employees, who later were included in a sep-
arate bargaining unit due to the results of a UC petition.
Hohmann testified that she also prepared the pie charts for ap-
proximately “several hundred” employees for years 2015
through 2020. (Tr. 473.) Based upon a document dated March
20, 2016, Hohmann identified the assumptions she relied upon
for developing the pie charts. The pie charts started with previ-
ous hours worked in 2014, then made assumptions regarding hol-
iday hours, jury duty, taxes, and health and welfare. In item 7,
Hohmann also listed assumptions for vacation, including prora-
tion and number of weeks to each employee based upon years of
service. However, the assumption list on jury duty and bereave-
ment costs contains this entry:
After reflection and to keep our negotiations moving, charts
have been redone with no jury duty or bereavement hours. All
employees are eligible. They cannot be forecasted.
(R. Exh. 4, p. 1.)
Hohmann testified that Goldman asked for the pie charts in
paper form so that they could show them to individual employ-
ees. (Tr. 495.) Hohmann was hesitant at first about who told her
the Union needed printed materials. (Tr. 495.) This statement is
not documented in the bargaining notes and, other than
Hohmann’s testimony, nothing reflects that the Union requested
more pie charts to discuss with employees. Given the Union’s
antipathy to the pie charts and the Union’s request for a “top and
bottom” on wages, I find that Hohmann made a faulty assump-
tion that the Union asked for more pie charts to discuss with em-
ployees.
During Richfield’s case in chief, Henry testified at length
about the need for a competitive wage rate. However, he testi-
fied in generalities as to the Union’s response except to say that
the Union rejected its offer.
Brandon, a shop steward who attended negotiations, testified
that the information in pie charts was extremely confusing. He
said that the proposed contract stated if an employee had not
been employed for 5 years, pay would be reduced. He said his
pie graph had a different number and was confused as to whether
he was getting a small raise or if he was “going backwards with
[his] wages.” (Tr. 264.) Schroeder, another employee attending
negotiations, reviewed her own pie charts. She found that the
base pay was incorrect and looking at the pie charts was “like
reading Chinese.” (Tr. 363.) Goldman objected to the pie charts;
Hohmann tried to explain the pie charts.
Goldman raised the concerns about misinformation in the pie
charts. Stokes replied that Goff had asked for the pie charts as
an answer about a floor and ceiling to wage increases on merit

19 During Respondent’s case-in-chief, Henry, who was present during
Hohmann’s testimony, was asked whether he agreed with Hohmann’s
testimony. General Counsel objected as not a proper question. Respond-
ent claimed it was trying to establish a foundation. Henry agreed with
pay. (Tr. 167.) In examining the pie charts, the Union found
Richfield expected banquet servers to take as much as a 50 per-
cent wage decrease. (Tr. 167.)
At hearing, Henry testified that Richfield did not keep the pie
charts. Hohmann testified that Richfield did not keep physical
copies of the pie charts but it kept approximately 80 percent of
the electronic copies and could recreate the other 20 percent
through a template. (Tr. 498.) Richfield failed to respond to
General Counsel’s subpoena for the pie charts. Richfield pre-
pared individual pie charts for the employees. Stokes stated that
all the pie charts had been changed, but when General Counsel
offered one for his review that showed a wage decrease, he could
not identify whether it had later been modified. (Tr. 688, exam-
ining GC Exh. 10(i).) In explaining Richfield’s failure to pro-
duce the pie charts pursuant to subpoena, Henry19 testified that
the only copies were given to the Union and Richfield did not
retain any copies; he said he did not know what happened to the
electronic copies. (Tr. 84.) This discrepancy is concerning:
Richfield intended to rely upon 400 pie charts as its proposal, yet
maintained it kept no copies, or at least did not keep a full set.
Regarding the banquet servers’ pay, Goff testified that Rich-
field never clarified its position. (Tr. 170.) Richfield’s bargain-
ing notes of September 24 confirm that further discussion was
needed on this issue. Henry’s statement to the banquet servers,
that they would take a 50 percent cut in pay, further supports that
Richfield was not very interested in giving a reasonable offer.
(c) Parties’ Positions
Richfield contends its pay proposals were designed to show
how wages would play out over a 5-year contract and were easy
to understand. It states the pie charts were designed to be helpful
but it really does not matter how successful Richfield was with
the pie charts. Richfield admits it prepared a spreadsheet for all
current bargaining unit employees, stating wages for each person
for each year through 2020. (R. Br. at 11–12). Regarding Rich-
field’s alleged failure to answer questions, Richfield merely re-
fers the reader to see Hohmann’s testimony. It cites no case law
to defend its position. (R. Br. at 12).
General Counsel cites Billion Oldsmobile-Toyota, 260 NLRB
745, 755–756 (1982), enfd. 700 F.2d 454 (8th Cir. 1983). There
the employer submitted a proposal that would cut wages and then
offered to pay an average of what other dealerships were paying
to employees. As the dealership was the only unionized facility
in town, the offer represented a pay cut. The administrative law
judge stated:
It seems elementary to me that if one party to a collective-bar-
gaining agreement is proposing to the other a fundamental
change in a critical area such as wages, the party proposing the
Hohmann’s testimony. However, certain aspects of Henry’s previous
testimony conflicted with Hohmann. For example, Henry testified that
Respondent retained no copies of the pie charts, while Hohmann said 80
percent were retained electronically.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
change has a duty both to state clearly and with adequate doc-
umentation the reason and rationale for the change, and to ex-
plain in detail what the change is and how it is expected to af-
fect the other party.
260 NLRB at 755.20
General Counsel also cited Liquor Industry, 333 NLRB 1219.
In examining the totality of the employer’s conduct regarding
wage proposals, the Board there found that a proposal that
granted the employer broad discretion over wages with little pro-
portionate incentive to the union, was designed to frustrate
agreement. Id. at 1220–1221 and cases cited therein.
(d) Analysis
I find that Richfield’s use of pie charts and contradictory pro-
posals on banquet servers’ pay failed to meet the requirements
of good faith bargaining. According to Hohmann, the Excel
spreadsheet presented as part of Richfield’s proposal admittedly
covered several hundred employees with individual wage rates
and raises. Goff asked at least twice for the floor and the ceiling
on the wages.
In response, Richfield presented pie charts. Henry said that
these charts were Richfield’s explanation. Henry testified that
Richfield spent a significant amount of time explaining the pie
charts and making changes to make the pie charts correct. How-
ever, his testimony was nonspecific as to when these discussions
took place, except to say it was during March. Much of his tes-
timony was in response to leading questions and still remained
vague and wandering. (e.g., Tr. 518–519.) He then testified that
Goff asked, on February 27, about wages for those already em-
ployed. As a result, he and Hohmann prepared the pie charts for
the 5 years of the proposed contract. (Tr. 520.)
I find that Richfield presented confusing pay proposals for
currently employed employees. The first proposal was confus-
ing—it did not identify by job, job longevity, but identified each
individual and a proposed pay rate. For current employees, pro-
posed Appendix A was not by property either. Richfield seized
upon Goff’s request for clarification 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 response, Richfield heaped more pie charts upon
the Union and further muddied the negotiating waters.
Regarding the pay for the banquet servers, Richfield appar-
ently never clarified what it was offering. It claimed it would
keep the service charge and then Bunce said it would pay when
it felt like it. The bargaining notes do not reflect when Richfield
would do so. This shifting proposal indicates Richfield intended
to exercise complete control over the banquet servers’ pay.
Richfield, throughout the hearing, justified its proposal with its
need to complete in the Rochester marketplace. However, in
many respects, charging a service charge and not paying it to the

20 The Eighth Circuit affirmed that the employer’s offer of sham or
frivolous wage proposals were part of the employer’s course of bad-faith
bargaining and violated the Act. 700 F.2d at 456.
21 Goff presented reasons why this provision would have a chilling
effect on employees’ union activities. The international union conven-
tion occurs every 5 years. The convention delegates discuss union
employees who earned it does not demonstrate how Richfield
intended to make it more competitive. Billion Oldsmobile, su-
pra.
The bargaining history demonstrates that Richfield violated
Section 8(a)(5) in its pay proposals.
3. Union leave proposal
On March 24, Richfield’s last, best, and final offer included a
new provision about union leave. The proposal limited Union
leave to 3 days:
The Employer agrees to grant necessary time off, limited to
three (3) working days, without pay or loss of seniority rights
to any Employee designated by the Union to attend a labor con-
vention or serve in any capacity on other official Union busi-
ness. The Union agrees to give in writing a minimum of two
(2) weeks’ notice to the Employer. It is agreed that there shall
be no disruption of the Employer’s operation.
(GC Exh. 6(g), § 54.) (emphasis in original).
When the Union asked for an explanation of why Richfield
sought this provision, Goff testified that Henry said Richfield
wanted it. (Tr. 158.) Henry testified that he could not recall
when the Union leave proposal was raised. He further said the
language had not changed except for the addition of specifying a
number of days for union leave. He could not specifically recall
what was the Union’s response, but then stated they did not make
a counterproposal and never specified the date. (Tr. 547.)
On September 24, at the parties’ last negotiation session,
Goldman said that the union conference lasted 5 days and the
Union wanted to increase the time “up to six months.” Goldman
explained that, if a housekeeper was needed to assist in organiz-
ing other hotels, that person would need a leave of absence.
Richfield’s bargaining notes show it made no response. (R. Exh.
6, p. 152, Item #54.)21
Richfield’s position is to limit its discussion to the language
of the provision and does not address any of the testimony. Rich-
field contends that nothing in the proposal reflects a loss of sen-
iority rights to union employees. (R. Br. at 14.) General Coun-
sel’s position analogizes to times when an employer requested to
remove union-security clauses based upon “philosophical”
grounds. See Universal Fuel, Inc., 358 NLRB 1504 (2012), and
Mid-Continent Concrete, 336 NLRB 258, 260 (2001), enfd. 308
F.3d 859 (8th Cir. 2002).
More recent case law requires that a party give reasons to jus-
tify its position. Here, Richfield did not meet the requirement to
justify its positions taken regarding union leave by reasoned dis-
cussion, even as late as September 24, and therefore violated
Section 8(a)(5) of the Act. Unique Thrift Store, 363 NLRB No.
122, slip op. at 1 fn. 3; Palestine Coca Cola Bottling Co., 269
NLRB at 645.
matters like dues increases and any changes to the constitution. (Tr.
156). Although the convention itself lasts only 3 days, it likely involves
1-day travel to the convention and a day back. (Tr. 157). The Union
contends this proposal causes a loss of seniority for any other days taken
off. (Tr. 157–160.)
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC 19
IV. RICHFIELD DISCONTINUED THE SUNSTONE CONTRACT’S
LONGEVITY PAY
The complaint alleges that Richfield unilaterally discontinued
longevity pay, provided in the Sunstone contract, upon expira-
tion of the contract. In addition, the complaint alleges that Rich-
field did so in violation of Section 8(a)(3) and made statements
about the discontinuance of the raises in violation of Section
8(a)(1).
A. Facts regarding discontinuing longevity pay
The Sunstone contract, in effect through February, contained
a wage grid for each property for each year. The new employees’
pay was based upon when hired and the job performed. (See
GC Exh. 2, Appendix A). Raises were scheduled for 12 months,
24 months, 42 months, and 60 months. For example, a line cook
hired at the Marriott Hotel on or after September 1, 2011, would
be paid $10.41 per hour at hire. After 12 months’ employment,
the line cook would receive a raise to $11.34; after 24 months,
$12.21; 42 months, $13.02; and 60 months, $13.88. However, a
line cook hired on or after September 1, 2013 initially earns
$10.41 per hour; at 12 months, receives an increase to $11.80; at
24 months, $12.70; at 42 months, $13.54 and at 60 months,
$14.44.
When the Sunstone contract extension expired, Richfield
stopped paying raises identified in Appendix A. Thus, a hypo-
thetical line cook at the Marriott who was hired on September
15, 2013 would have received a raise effective September 15,
2014, but nothing at the 24-month point on September 15, 2015,
or thereafter. Henry explained that the parties had no agreement
regarding wages or pay rates when the agreement expired, so
Richfield had no basis for paying the increases noted in the Sun-
stone contract. (Tr. 65–66.) The record does not reflect that
Richfield notified the Union it intended to stop the contractual
longevity increases with the expiration of the Sunstone contract
before it did so.
On June 11, 2015, Brian Brandt, Local 21 president, sent an
email to Henry regarding a housekeeper who said she did not
receive her 12-month pay increase. In the email, Brandt reported
that the housekeeper said she spoke with Henry, who told her she
would receive her pay increase until the contract was resolved.
(GC Exh. 5.)
On June 17, Henry replied to Brandt by email, stating that the
contract had expired and the Employer “has shared with the un-
ion that we will not be extending the previous contract” and that
Richfield extended a last, best and final offer on March 24 that
the union had not yet signed. Henry concluded, “The employer’s
[sic] position is that we are awaiting the signed and to be exe-
cuted proposal that is on the table to provide the affected associ-
ates with the appropriate negotiated increase.” (GC Exh. 5.)
President Nancy Goldman, via email dated June 22, advised
Henry that regardless of the expiration of the agreement, “. . .
[T]he Employer is obligated to continue the terms and conditions

22 I credit Henry to the extent that he admitted that Richfield discon-
tinued the longevity pay increases. The remainder of his testimony on
this issue was evasive and cannot be credited. Cherry Hill Convalescent
Center, 309 NLRB 518 (1992).
of the prior contract including the specified wage increases.”
Henry contended that stopping the pay increases was not dis-
cussed during bargaining and the Union did not raise it. (Tr. 68–
69.)22 Henry did not admit that the Union filed a grievance about
the issue, but admitted he received an email. (GC Exh. 5).
B. Richfield Unilaterally Changed Longevity Pay Based upon
the Sunstone Contract, in Violation of Section 8(a)(5)23
1. Parties’ positions
Richfield contends nothing in Appendix A suggests these
raises continue after the Sunstone contract expiration. In its an-
swer, it contends that the Duration Clause, Article 27, states the
wages will only be in effect during the term of the agreement. It
cites the specific language:
“This Agreement shall be effective as of October 1,
2011 and continue in full force and effect to and including
the 31st day of August, 2014 . . . Wages increases set forth
in Appendix A will be effective on the first full pay period
after September 1, 2011, the first full pay period after Sep-
tember 1, 2012, and the first full pay period after September
1, 2013.”
(GC Exh. 2, p. 26, Art. 27, “Duration”.)
Richfield argues that nothing in the language reflects an un-
derstanding that the wage increases would continue after August
31, 2014, or that the extension permitted the wage increases after
February 28, 2015. It also suggests that the Union waived its
rights to bargain about the longevity raises.
2. Analysis regarding Richfield discontinuing the
longevity increases
Richfield was not privileged to discontinue scheduled wage
increases and presented the Union and the employees with a fait
accompli. Nothing in the facts show that the Union waived its
rights to bargain over these wages.
As often noted, an employer who unilaterally changes condi-
tions under negotiations without notification or bargaining, or
without reaching a valid impasse, violates Section 8(a)(5) of the
Act. NLRB v. Katz, 369 U.S. 736, 743 (1962). Pursuant to Sec-
tion 8(d) of the Act, an employer must continue the contractual
terms after the contract expires. Finley Hospital, 362 NLRB
915, 916–917 (2015). Also see Marina Del Rey Hospital, 363
NLRB No. 22, slip op. at 3 (2015). The only exceptions occur
when the union continually avoids or delays bargaining, or eco-
nomic exigencies require the employer to respond promptly. Bot-
tom Line Enterprises, 302 NLRB 373, 374 (1991), enfd. 15 F.3d
1087 (9th Cir. 1994).24
Wages are a mandatory subject of bargaining. JPH Manage-
ment, Inc., 337 NLRB 72 (2001). When periodic wage increases
are an establish term of employment, an employer violates the
Act by unilaterally discontinuing them. Finley Hospital, 362
NLRB 915, 919 fn. 9 (2015), citing inter alia, Daily News of Los
23 The amended complaint termed these contractual wage increases
as step increases. Richfield repeatedly objected to the term and I there-
fore substitute the term “longevity increases” to reflect the temporal na-
ture of the pay increases.
24 Richfield has not contended either of these exceptions apply.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Angeles, 315 NLRB 1236 (1994), enfd. 73 F.3d 406 (D.C. Cir.
1996), cert. denied 519 U.S. 1090 (1997). Changing wages after
contract expiration, without first bargaining to impasse, violates
Section 8(a)(5). See generally Regency Heritage Nursing & Re-
habilitation Center, 360 NLRB 794 (2014).
Henry’s June 17 email confirms that Richfield discontinued
the scheduled pay increases in February, before Richfield gave
an alleged final offer on wages. Like the respondent in Katz, 369
U.S. at 741–742, Richfield took action before the parties could
have reached a bargaining impasse. In February, the parties had
begun the bargaining process but had made little progress.
The pay increases were “fixed and automatic.” The pay in-
creases were tied to a definite length of employment, job title,
and property, which defined the amount of the pay increase. This
fixed and automatic raise is the “norm” at the hotels based upon
the language in the collective-bargaining agreement. Bryant &
Stratton Business Institute, Inc. v. NLRB, 140 F.3d 169, 181 (2d
Cir. 1998), enfg. 323 NLRB 410 (1997) and 321 NLRB 1007
(1996).
The change occurred while when Richfield should have main-
tained the status quo. Richfield did not deny that the change took
place at this time. Richfield presents no evidence that it notified
the Union before it discontinued the raises or requested to bar-
gain about the change. This unilateral change is an unlawful fait
accompli.
Richfield cannot rely on the 2014 “wish list” to state that Un-
ion had adequate notice to bargain over the longevity wage table
in Appendix A of the Sunstone contract. Richfield conveyed it
wanted the pay changed and was listed as some of the topics for
negotiation; nothing in the record conveys that Richfield notified
the Union that these wage increases would stop when the Sun-
stone contract extension expired, nor does the bargaining history
reflect that wages were discussed before Richfield discontinued
it. Further Richfield does not point out any other items on the
“wish list” that were changed.
Richfield and General Counsel both cite Finley Hospital, 362
NLRB 915 (2015). In Finley Hospital, supra, the Board found
that the status quo of annual raises dictated that the raises con-
tinue after the contract expired. That case does not support Rich-
field’s proposition that it was privileged to discontinue the lon-
gevity wage increases. According to Finley, changes may be
made if the employer notifies the union and bargains the new
terms or if the parties bargain and reach a lawful impasse. Id.,
citing Des Moines Register & Tribune Co., 339 NLRB 1035,
1036–1038 fn. 6 (2003), rev. denied 381 F.3d 767 (8th Cir.
2004). As noted, Richfield made no notification that it intended
to discontinue these wage increases when the Sunstone contract
expired. As of February, the parties were in the midst of negoti-
ations, having only three negotiation sessions and much of the
time was spent on Richfield’s demands on a permissive subject,
separating TCS from the rest of the bargaining unit. Impasse
cannot be claimed.
Based upon the language in the collective-bargaining agree-
ment, neither the timing nor the amount of the pay increases here
were left to the employer’s discretion. Compare Daily News of
Los Angeles, 315 NLRB 1236, 1240–1241 (1994), enfd. 73 F.3d
406 (D.C. Cir. 1996), rehg. and rehg. in banc denied (1996), cert
denied, 519 U.S. 1090 (1997). Daily News deals with merit
increases that were given annually, with the amounts left to the
discretion of the employer. However, in this case, nothing was
left to chance in the expired Sunstone contract, which specified
the amount of raise due to an employee based upon job, location,
hire date and length of service.
In Marina Del Rey Hospital, 363 NLRB No. 222 (2015), the
Board further emphasized the difference between a contractual
right, which may expire, versus a statutory obligation to maintain
the status quo, which also bars a clear and unmistakable waiver.
The Board examined whether an employer unlawfully ceased
payments to an educational fund. The payments were within the
contract. The “statutory status quo” required the employer to
continue payments to an educational fund. Finding no express
or implied waiver to permit discontinuing these payments, the
Board found the employer violated Section 8(a)(5) and (1). Ma-
rina Del Rey, 363 NLRB No. 22, slip op. at 3–4.
Here, the plain language in the Sunstone contract says nothing
about discontinuing wage increases when the Sunstone contract
expires. The language gives a start date, not a stop date. The
result is the Sunstone contract regarding wages was the “statu-
tory status quo” that Richfield was required to maintain.
This situation is similar to Wilkes-Barre General Hospital,
362 NLRB 1212 (2015). In Wilkes-Barre, the parties’ contract
was silent regarding what would occur with the longevity pay
increases for nurses after the contract expired. The contract
specified when pay raises would accrue based upon specific
dates and the length of time the nurse was employed. Although
the contract expired, the hospital had an obligation to continue
wages, hours and terms and conditions of employment for repre-
sented employees unless it gave notice and an opportunity to bar-
gain to the union and reached a valid impasse. The hospital, by
discontinuing the contractual longevity wage increases, violated
Section 8(a)(5) of the Act.
Richfield, like Wilkes-Barre, had a practice established by the
Sunstone contract and was required to maintain the status quo.
Id., slip op. at 2, fn. 2. The status quo here requires Richfield to
honor the pay scales set for in Appendix A of the expired collec-
tive-bargaining agreement. By discontinuing these pay in-
creases, Richfield made an unlawful unilateral change in viola-
tion of Section 8(a)(5) of the Act.
Richfield also contends that language in the Sunstone contract
relieves it of continuing the longevity raises and implies that the
Union waived its rights to continue those raises. That language
reads: “Wage increases set forth in Appendix A will be effective
on the first full pay period after September 1, 2011, the first fully
pay period after September 1, 2012 and the first full pay period
after September 1, 2013.” First, as discussed above, this lan-
guage is consistent with the requirements in Wilkes-Barre, which
shows a requirement to maintain the status quo. Secondly, this
language does not constitute a waiver.
A waiver of a union’s statutory rights, including the right to
bargain about wages, must be clear and unmistakable and cannot
be inferred lightly. Metropolitan Edison Co. v. NLRB, 460 U.S.
693 (1983); Timken Roller Bearing Co., 138 NLRB 15, 16
(1962). “A clear and unmistakable waiver may be found in the
express language and structure of the collective-bargaining
agreement or by the course of conduct of the parties. The burden
is on the party asserting waiver to establish that such a waiver
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC 21
was intended.” Leland Stanford Junior University, supra. See
also NLRB v. New York Telephone Co., 930 F.2d 1009 (2d Cir.
1991), enfg. 299 NLRB 35 (1990). Also see Finley Hospital,
362 NLRB 915, 917 (assent to change must reflect mutual intent
to allow the change in spite of a duty to bargain). Silence in a
bargaining agreement does not demonstrate a clear and unmis-
takable waiver. S-B Mfg. Co., Ltd., 270 NLRB 485, 490 (1984),
citing Timken Roller Bearing Co v. NLRB, 325 F.2d 746, 751
(6th Cir. 1963).
Because the contract was silent about stopping the longevity
pay increases, the Union did not waive its right to bargain about
discontinuing the pay increases. As often noted, waiver must be
clear and unmistakable, with an unequivocal expression of mu-
tual intent to allow the change in spite of a duty to bargain. Fin-
ley Hospital, 362 NLRB 915, 918–919. Given the lack of a clear
and express waiver in the Sunstone contract, Richfield has failed
to prove the Union waived its rights to negotiate about the lon-
gevity increases. Because the Union did not waive its rights and
no language in the contract permits discontinuation when Rich-
field was required to maintain the status quo, Richfield violated
Section 8(a)(5) by unilaterally discontinuing the longevity pay
increases.
(C) 8(a)(1) Allegations Related to Discontinuing
Longevity Increases
1. Applicable law
The Board established an objective test for determining if “the
employer engaged in conduct which would reasonably have a
tendency to interfere with the free exercise of employee rights
under the Act.” Santa Barbara News-Press, 357 NLRB 452, 475
(2011). This objective standard does not depend on whether the
“employee in question was actually intimidated.” Multi-Ad Ser-
vices, 331 NLRB 1226, 1228 (2000), enfd. 255 F.3d 363 (7th Cir.
2001). Blaming the Union for a lack of a pay increase is viola-
tive. See generally Marshall Durbin Poultry Co.¸ 310 NLRB 68,
69 (1993), enfd. in rel. part, 39 F.3d 1312 (5th Cir. 1994), rehg.
denied (5th Cir. 1995) (employer blamed union for lack of
hours). Accord: First Student Inc., 359 NLRB 208 (2012) (su-
pervisor said no raises while bargaining ongoing); Teksid Alumi-
num Foundry, 311 NLRB 711, 711 fn. 2 and 717–718 (1993)
(during organizing campaign, language telling employees raises
would be frozen violated the Act).
2. Henry’s testimony
Henry testified that employees talked with him about the lack
of pay increases. Henry could not state how many employees
spoke to him on this issue except to say it was more than 10.
Two employees testified about their experiences hearing super-
visors make statements about how the Union had to sign a con-
tract in order for employees to receive their raises.
3. Brandon’s uncontradicted testimony
Shop Steward Brandon testified that he approached Head
Chef Ulrich at the Marriott several times during May and June
about Richfield’s failure to give the longevity raise to Derek
Kotvask.
About May 1, Derek Kotvasz, a cook at the Marriott, was due
for his 12-month longevity raise. Kotvasz approached Shop
Steward Brandon several times about the raise. Kotvasz was
concerned that he might not receive the raise based upon rumors
and he had a job offer elsewhere. The conversations between
Brandon and Kotvask regarding the raise continued through the
end of May and into June because Kotvasz had not received his
longevity increase.
Chef Ulrich advised Brandon that “HR is saying that they can-
not give him a raise because of we’re not under contract . . . .”
Ulrich then asked Brandon what he knew about it. Brandon said
he told him that, according to Union President Brandt, the raises
should have been in effect. (Tr. 300–302.)
Brandon also testified that, about May, while approximately
15 to 20 employees were picketing at the loading dock, he over-
heard Jeff Burns, the manager of engineering at the Marriott, say
in a loud voice, “You know, all they’ve got to do is sign the con-
tract and they’ll all get their raises.” Brandon was standing ap-
proximately 5 feet from Burns and he saw Burns glancing at him.
Richfield did not call Chef Ulrich to testify. I draw an adverse
inference because Richfield did not call Ulrich, who worked for
Richfield. Roosevelt Memorial Medical Center, 348 NLRB
1016, 1022 (2006); see also Martin Luther King, Sr., Nursing
Center, 231 NLRB 15, 15 fn. 1 (1977); Underwriters Laborato-
ries Inc. v. NLRB, 147 F.3d 1048, 1054 (9th Cir. 1998) (“The
decision to draw an adverse inference lies within the sound dis-
cretion of the trier of fact”). In that event, drawing an adverse
inference regarding any factual question on which the witness is
likely to have knowledge is appropriate. International Auto-
mated Machines, 285 NLRB 1122, 1123 (1987), enfd. mem. 861
F.2d 720 (6th Cir. 1988). I also credit Brandon’s testimony as
his demeanor was earnest and he was able to explain the circum-
stances of why he had discussions with Chef Ulrich about wages.
(a) Analysis of Chef Ulrich’s statements to Brandon
Regarding the discussions between Brandon and Chef Ulrich,
Ulrich’s statements tell Brandon that HR says no raises will be
given because no contract exist. The statement therefore implies
that, should the Union agree to a collective-bargaining agree-
ment, raises would be available. I therefore find these statements
violate Section 8(a)(1) of Act.
(b) Analysis of Burns’ statement while Brandon was present
The statement of Burns, the engineering manager, was not al-
leged. “‘[T]he Board may find and remedy a violation even in
the absence of a specific allegation in the complaint if the issue
is closely connected to the subject matter of the complaint and
fully litigated.’” Hi-Tech Cable Corp., 318 NLRB 280 (1995),
enfd. in part 128 F.3d 271 (5th Cir. 1997), citing Pergament
United States, 296 NLRB 333, 334 (1989), enfd. F.2d 130 (2d
Cir. 1990). The statement is about the same issue—whether em-
ployees were receiving raises and whether Richfield’s managers
told employees that the Union’s failure to sign a collective-bar-
gaining agreement was to blame. I also have found other unlaw-
ful conduct about the discussion of raises. Therefore, the issue
is closely related.
Regarding whether the issue was fully litigated, Richfield did
not object to Brandon’s testimony and cross-examined him about
the statement. See Parexel International, LLC, 356 NLRB 516,
517–518 (2011), citing Golden State Foods Corp., 340 NLRB
382 (2003). Richfield had an opportunity to present its own wit-
nesses but did not do so. It had the opportunity to brief the
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
matter, although it did not do so. I therefore find that the issue
was fully litigated.
Burns, by glancing at Brandon, intended for employee protest-
ers on the loading dock to hear his statement. His statement
squarely blames the Union: If they—the Union—would sign the
contract, employees would have their pay raises. Blaming the
Union for lack of pay increases or acting as an impediment to
pay increases violates Section 8(a)(1) of the Act. See Faro
Screen Process, Inc., 362 NLRB 718, 718 (2015), citing RTP
Co., 334 NLRB 466, 468, 470, 471 (2001), enfd. sub nom. NLRB
v. Miller Water Mills, 315 F.3d 951 (8th Cir. 2003), cert. denied
540 U.S. 811 (2003) and Lafayette Grinding Corp., 337 NLRB
832, 839 (2002).
4. Schroeder’s uncontradicted testimony
On June 19, Kelli Schroeder went to the Human Resources
office with questions about her check. She waited in the outer
room to receive assistance. While she waited, within the Human
Resources office, the door to Costello’s office was open.
Schroeder could hear Costello and Henry within the office,
and they were talking with a housekeeper about her pay.
Schroeder went down the hallway to listen more carefully. The
housekeeper asked where her step pay increase was. Schroeder
heard Henry reply, “We don’t have a contract right now, the Un-
ion will not agree to this offer that’s a very fair offer, you know,
you really need to call Brian and tell him that he needs to accept
everything. This is a great proposal, everything is really, really
competitive.” Henry then shifted the conversation to the em-
ployee’s management potential. Schroeder stated she listened
until her break time was over and then left. (Tr. 352–353.)
(a) Credibility
What Schroeder heard was consistent with Henry’s email ex-
planation about why employees would not receive a longevity
wage increase. Schroeder was sure in her testimony and fleshed
out details. Although Henry testified that he talked with at least
10 employees about the longevity increases, he never denied this
conversation. Costello also did not testify about talking with em-
ployees about their raises or what might have been said.
Richfield implies that Schroeder should not be credited be-
cause she was an admitted eavesdropper. However, Schroeder
readily admitted that she was listening in. I do not find that the
admitted eavesdropping affected her credibility. See Overnite
Transp. Co., 336 NLRB 387, 392 (2001) (administrative law
judge credits witness who overheard an employer instructing an
employee to start a decertification petition). I therefore credit
Johnston’s testimony regarding this conversation.
(b) Analysis
The credited testimony shows Henry, with Costello present,
told an employee that the reason she did not have a raise was two
reasons: Not only was there no contract, but also the Union
would not agree to a “fair offer.” Henry then encouraged the
employee to lobby Union President Brandt to accept the pro-
posal. Henry places the blame on lack of raises directly upon the
Union.
This statement is similar to a letter issued by an employer to
employees about an unlawful rescission of a wage increase. The
letter told employees that the Union caused the rescission, which
the Board found coercive. The Board found the letter “consti-
tuted interference, restraint, and coercion that unlawfully tended
to undermine the Union in violation of Section 8(a)(1).” Faro
Screen Process, Inc., 362 NLRB 718, slip op. at 1. For the rea-
sons stated in analysis of statements involving Brandon, this
statement is similarly coercive and unlawfully interferes with the
Union, both of which violate Section 8(a)(1). Id. I therefore find
that Richfield, by Henry with Costello present, coerced an em-
ployee about the lack of pay raises and interfered with the Union.
(c) Discontinuing the longevity pay increases also
violated Section 8(a)(3)
Section 8(a)(3) states an employer commits an unfair labor
practice by discouraging membership in any labor organization
by discriminating in regard to hire or tenure of employment or
any terms and condition of employment. An employer who
withholds employee benefits because of union activity violates
the Act. Oberthur Technologies of America Corp., 362 NLRB
1820, 1831 (2015).
This case has similarities to Crispus Attucks Children’s Cen-
ter, Inc., 299 NLRB 815 (1990). The employer withheld annual
raises during negotiations because it insisted on negotiating all
noneconomic issues before reaching the economic issues, which
violated Section 8(a)(5). As the Union requested the annual
raises, the employer’s failure to pay the annual increases violated
Section 8(a)(3). Id. at 836.
Richfield withheld scheduled raises based upon its unlawful
conduct of stopping the raises, in violation of Section 8(a)(5). It
stated its goals of the unilateral change to employees: Tell the
Union to sign our version of the collective-bargaining agreement
and you can have pay increases. Richfield therefore punished
the employees by withholding raises because of the Union’s po-
sition in collective bargaining and violated Section 8(a)(3) of the
Act. Crispus Attucks, supra.
V. SINCE MARCH 2015, RICHFIELD CHANGED POLICIES REGARDING
POSTING OF UNION MATERIALS ON BULLETIN BOARDS (¶6(J)) AND
UNION ACCESS TO THE FACILITIES (¶6(I)), AND RELATED
8(A)(1) ALLEGATIONS
A. Facts Related to These Allegations
1. The Union had past practices with access to the hotels and
posting on company bulletin boards
Before the 2015 negotiations, Union Representative Linda
Henry traditionally posted union information at two of Rich-
field’s hotels, the Marriott and the Kahler Grand. She visited the
Marriott usually once per week to see employees. At the Mar-
riott, she would see managers, including Crystal Adcox, the
housekeeping manager, and of Operations Manager Scott Mauer.
She also made postings on four areas: the union bulletin board
in the break room and the boards outside the chef’s office, by the
restaurant manager’s office, and by the time clock. Union Rep-
resentative Linda Henry posted information on these boards and
the information would stay up until she took the information
down.
Brandon testified that he also posted union materials many
times on bulletin boards at the Marriott, usually on the bulletin
board by the restaurant manager’s office and on the union bulle-
tin board. During contract negotiations, he posted about the
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC 23
negotiations. Before negotiations, these postings would remain
until he removed them.
Linda Henry also visited with employees and posted notices
at the Kahler Grand Hotel about once a week. Before she would
go to the Kahler Grand, she would send an email to the human
resources department either the day before or the morning of her
visit. She visited with employees in the cafeteria, the housekeep-
ing break room, and the maintenance break area. (Tr. 408.) To
reach these areas, Linda Henry walked through the dish room,
the kitchen, and by offices on the second floor into the house-
keeping area. She posted flyers in the four areas at the Kahler
Grand, including the “back room” to Starbuck’s. (Tr. 408.) Dur-
ing these visits, she would run into some of the managers, in-
cluding Henry, Costello and Decker from human resources, the
food and beverage director, Director of Operations Mauer and
the housekeeping manager.
2. March events
On March 25, by email, Linda Henry notified Henry and Cos-
tello that she would be visiting the Marriott, the Kahler Inn and
Suites, and the Kahler Grand the next day. (Tr. 416; GC Exh.
25(a).) On March 26, between 7:30 and 8 a.m., she arrived in
the Kahler Grand housekeeping department, in the area where
employees have tables. As usual, Linda Henry left at 8 a.m.
when the housekeeping employees left to clock in for work. She
went out the door and ran into Chad Decker from human re-
sources management at the end of the hall. Decker asked Linda
Henry what she was doing. She said she was visiting with the
members. Decker told her she was not supposed to be in that
break room. Linda Henry told him that she had never been told
she could not do so. (Tr. 418.)
During negotiations, shop steward Brandon saw that postings
Linda Henry made were not staying posted on the boards. Linda
Henry would notify him when she was making a posting. By the
time he went to check the boards, on the same day, except for the
union bulletin board, the postings were not present. Linda Henry
stated that these changes began about the end of March. (Tr.
416.)
3. April 2 events between Richfield and Linda Henry
On April 1, by email, Linda Henry notified Henry and Cos-
tello that she would be visiting the Kahler Inn and Suites and the
Kahler Grand the next day. (Tr. 418–419; GC Exh. 25(b).) On
April 2, at about noon in the Kahler Grand, Linda Henry left the
cafeteria break room and headed down to the maintenance break
area through the kitchen. As she was leaving, she briefly spoke
to a few employees in the kitchen and said hello. The employees
asked what she was doing, and she said she was passing out fly-
ers. She showed them the flyers but did not give any to the em-
ployees. Linda Henry estimated that at most, the conversation
with employees lasted ten seconds.25 On the way out, Seth Essar,
a sous chef, told her she was not allowed to speak to his employ-
ees. He also said she was not allowed to pass out flyers. She
told Seth that she had only shown the employees the flyers
briefly. Essar also said something about walking through the

25 Linda Henry previously worked in this department and knew many
of the employees. She said that she would not ignore people who wanted
to just say hello.
kitchen, which was the only way she could get to the hotel’s
other break rooms. Essar told her he intended to call the human
resources department. (Tr. 421–422.) Employees were in the
area and the distance was disputed at hearing. (Tr. 423.)
After the conversation with Chef Essar, Linda Henry walked
down the stairs and into the maintenance break area. She started
talking with two employees. Within a few moments, Costello
and Essar arrived. Costello, about 10 feet away from the em-
ployees, said in a very loud voice that Linda Henry was no longer
allowed to go into any break rooms except the cafeteria and only
allowed to post notices in the cafeteria. (Tr. 423–424.) Linda
Henry said she had posted in these break rooms all the time and
did not understand what the problem was. (Tr. 424–425.) Cos-
tello said it had been discussed in negotiations. Linda Henry said
she never heard it discussed in negotiations. Costello left and
Linda Henry resumed her conversation with the employees. The
employees said to Linda Henry they were in disbelief that Cos-
tello would talk to her that way. (Tr. 425.)
4. April 7 events between Richfield and Linda Henry
On April 6, Linda Henry notified Henry and Costello by email
that she intended to visit the Marriott, the Kahler Inn and Suites,
and the Kahler Grand on April 7. (GC Exh. 25(c)). On April 7,
in the Kahler Grand’s housekeeping break area, with about eight
to ten employees present, Josipa Jerkovic, the housekeeping
manager, entered and told Linda Henry that she could not be in
that break room any longer. (Tr. 427.) Linda Henry said no one
had advised her that she was not supposed to use that break room
and that she had been in that break room “all along,” so she did
not see anything wrong. Linda Henry testified that Jerkovic had
seen her many time and had several conversations with Jerkovic
in the past. Because the hour was approaching 8 a.m., when the
housekeepers needed to clock in for work, Linda Henry said,
“We’ll talk later” and left.
5. In April, Manager Eggiman instructed employee Brandon
to remove a posting
In about April, Restaurant Manager Mattie Eggiman called
Brandon into her office at the Marriott to talk about the postings.
She said Human Resources told her to remove all union flyers
from the bulletin board outside her office. She gave him the
choice of removing it himself or that she would take the posting
down. (Tr. 298.) Brandon advised her that he would take the
posting down himself. (Tr. 299.)
6. April 16: The issue is brought up during a
negotiations caucus
On April 16, the Union raised the issue of employer removing
the posting during a caucus. The union negotiating team, con-
sisting of Brandt, Goldman, Goff, and Linda Henry and several
employees, were caucusing. About 2 p.m., Henry came to the
union negotiators, announced that Richfield needed to do more
work and negotiations were ending for the day. The Union team
raised the events described above. Henry said he could not be-
lieve that it happened and denied that posting was removed.
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Linda Henry said she had witnesses, including a maintenance
employee who was present with the Union in the caucus. Henry
looked at the employee. The maintenance employee told Henry
it really happened.
7. About April or May, Schroeder observes Costello
with a union flyer
Kelli Schroeder, who was working at a barista at Starbuck’s
in the Kahler Grand, also noticed that union materials were dis-
appearing from the bulletin boards, including the one in the back
room behind Starbuck’s that was separated by a door and not
open to the public. Schroeder testified that previously, a flyer
that announced a union meeting would stay up until a few days
after a meeting, and she usually was the one taking down the
flyers. Once negotiations started, she noticed the disappearance.
About April or May, Schroeder, while working at bar, noticed
Linda Henry came into the café and walked into the back room.
About 15 minutes later, Costello came into the café. Normally
Costello gave Schroeder a friendly greeting, but not this time.
Costello walked into the back and then exited into the café. As
Costello walked past her, Schroeder noticed that Costello was
carrying a UNITE HERE flyer “pinned” to her leg. When
Schroeder was able to take her break, she went into the back
room and saw no union notice posted. Schroeder called Linda
Henry and told her that she saw Costello was a union flyer.
Linda Henry, very upset, told Schroeder that she had just been
yelled at and told that she could no longer have access to com-
mon spaces. (Tr. 347–349).26
8. June 5
On June 4, Linda Henry notified Henry and Costello by email
that she intended to visit the Marriott, the Kahler Inn and Suites,
and the Kahler Grand the following day. (GC Exh. 25(d)).
On June 5, about 1 p.m., Linda Henry was in the housekeeping
break area, discussing a question with an employee, when Henry,
Costello, Mauer, and Jerkovic entered. Henry said she was no
longer welcome in the break room because she made employees
feel uncomfortable. At that point, the employee left the break
room. (Tr. 432.) Linda Henry responded that employees talked
to her, were friendly and asked her questions. Henry said it did
not matter, because employees came to his office and com-
plained, so she would not be allowed in the area any longer.
Linda Henry told him that the matter would need to be negotiated
“[a]nd it took four of you to come up here and kick me out of
this break room.” Henry said, “We’re not kicking you out. We’re
asking you to leave.” (Tr. 433.) Linda Henry then left.
9. June 25
On June 24, Linda Henry notified Henry and Costello by
email that she would be visiting the Kahler Inn and Suites and
the Marriott the next day. (Tr. 434; GC Exh. 25(e).) On June
25, she was posting flyers in the banquet and housekeeping area
bulletin boards, where she traditionally made postings. While

26 Respondent objected twice on hearsay grounds to Schroeder’s tes-
timony about this telephone conversation with Linda Henry. I ruled that
the testimony was admissible through present sense impression. Present
sense impression is defined as “a statement describing or explaining an
event or condition, made while or immediately after the declarant per-
ceived it.” Fed.R.Evid. 803(1). Although the specific amount of time
she walked towards the housekeeping area, she ran into House-
keeping Manager Crystal Adcox and one of her supervisors. Ad-
cox told her she was not allowed in the area. Linda Henry said
she had always hung notices in the banquet area, where she was
going. Adcox said she was not allowed to be there any longer.
Linda Henry left. (Tr. 435.) Adcox did not testify about this
event.
10. September 2
On September 2, Linda Henry notified Henry and Costello by
email that she would be visiting Kahler Grand and the Marriott
that day. (GC Exh. 25(f).) She went to the Kahler Grand house-
keeping break area, where several employees were having lunch.
Jerkovic came in and told her she was not allowed in the area.
Linda Henry said that she thought things might have changed
after the unfair labor practices charges. Jerkovic said she did not
know about that and directed her to go to see Henry in human
resources. Richfield did not call Jerkovic to testify and it did not
ask Costello any questions about this incident.
B. Parties’ Positions
Henry testified that he and other managers saw that the union
flyers were “blanketing” the bulletin boards, covering infor-
mation posted by Richfield and the schedules. Henry maintains
that he permits posting on the union boards but not on the other
boards. (Tr. 568.) Henry did not testify when he saw the blan-
keting, or which other managers told him about problems with
the bulletin boards. Henry also did not testify about Linda Henry
making employees uncomfortable. Richfield did not call
Jerkovic and Eggiman to testify; Richfield asked no related ques-
tions to Adcox or Costello.
General Counsel contends that the Union had past practices
for access and posting notices. To change these practices with-
out prior notice or bargaining, according to the General Counsel,
violate Section 8(a)(5) as a unilateral change. General Counsel
also alleges that the statements made to Linda Henry, in the pres-
ence of employees, and other employees also violate Section
8(a)(1).
C. Analysis Regarding the Alleged Unilateral Changes of
Union Access and Union Posting
The facts establish that the Union had past practices of union
representative access to the hotels. The facts also establish that
both the Union and the employees had a past practice of posting
items on employer bulletin boards. By changing these past prac-
tices without prior notification or negotiation with the Union,
Richfield had multiple violations of Section 8(a)(5).
1. Applicable law regarding past practice and the unilateral
changes to union access and postings on
company bulletin boards
Terms and conditions of employment may exist when estab-
lished by longstanding and regular practice or custom, even if
between the events and the phone call are not known, it was sufficiently
soon enough after the events that Linda Henry said it “just” happened
and was still crying. I give full credit to Linda Henry’s statements to
Schroeder. See Webco Industries, 327 NLRB 172 fn. 6 (1998), enfd. 217
F.3d 1306 (10th Cir. 2000). Compare Cumberland Farms Dairy of New
York, Inc., 258 NLRB 900 fn. 1 (1981).
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC 25
not included in the collective-bargaining agreement. See Hotel
Texas, 138 NLRB 706, 712–713 (1962), enfd. 326 F.2d 501 (5th
Cir. 1964); Frontier Homes Corp., 153 NLRB 1070, 1072–1073
(1965); Central Illinois Public Service Co., 139 NLRB 1407,
1415 (1962), enfd. 324 F.2d 916 (7th Cir. 1963). A past practice
must occur with such regularity and frequency that employees
could reasonably expect the “practice” to continue or reoccur on
a regular and consistent basis. Philadelphia Coca-Cola Bottling
Co., 340 NLRB 349, 353–354 (2003); Eugene Iovine. Inc., 328
NLRB 294, 297 (1999).
Because the past practice becomes a term and condition of
employment, the past practice cannot be changed without offer-
ing the collective-bargaining representative notice and an oppor-
tunity to bargain, absent clear and unequivocal waiver of this
right. Sunoco, Inc., 349 NLRB 240, 244 (2007), citing Granite
City Steel Co., 167 NLRB 310, 315 (1967); Queen Mary Rest.
Corp. v. NLRB, 560 F.2d 403, 408 (9th Cir. 1977); Exxon Ship-
ping Co., 291 NLRB 489, 493 (1988); DMI Distribution of Del-
aware, 334 NLRB 409, 411 (2001). The past practice may be-
come a mandatory subject of bargaining and if the unilateral
change is material, substantial, and significant, the employer vi-
olates Section 8(a)(5) of the Act. Alamo Cement Co., 281 NLRB
737, 738 (1986); Flambeau Airmold Corp., 334 NLRB 165, 171
(2001). The burden of proof is upon the General Counsel. North
Star Steel Co., 347 NLRB 1364, 1367 (2006).
The Union’s access to the workplace is a mandatory subject
of bargaining. Turtle Bay Resorts, 355 NLRB 1272 (2010), enfd.
452 Fed. Appx. 433 (5th Cir. 2011); NLRB v. Great Western
Coca-Cola Bottling Co., 740 F.2d 398, 403 (5th Cir. 1984). The
Board views interference with union access as a unilateral
change that impairs a representative’s ability to represent em-
ployees effectively or interferes with the employees’ abilities to
support their bargaining agent. Turtle Bay, 355 NLRB at 1272,
citing Ernst Home Centers, 308 NLRB 848–849 (1992). Also
see Unbelievable, Inc. d/b/a Frontier Hotel & Casino (Frontier
III), 323 NLRB 815, 817–818 (1997), enfd. 118 F.3d 795 (D.C.
Cir. 1997).
Regarding employee posting, posting union literature by em-
ployees also is a mandatory subject of bargaining. If an em-
ployer has permitted employees access to company bulletin
boards for a variety of matters, the employer’s removal of union
literature violates Section 7 of the Act. Fleming Companies,
Inc., 336 NLRB 192 (2001), enfd. 349 F.3d 968 (7th Cir. 2003).
If the employer has given previous access to employees to its
company bulletin boards and discriminatorily removes union
posted information, it also violates Section 8(a)(1) of the Act.
Honeywell, Inc., 262 NLRB 1402–1403 (1982), enfd. 722 F.2d
405 (8th Cir. 1983). Regarding the Union postings on the com-
pany bulletin boards, the practice can continue once an employer
allows union access to company bulletin boards. HealthBridge
Management, LLC v. NLRB, 796 F.3d 1051, 1059, 1075 (D.C.
Cir. 2015), enfg. 360 NLRB 937 (2014). Also see Arizona Port-
land Cement Co., 302 NLRB 36, 44 (1991).
b. Analysis for unilateral changes on posting and access
The complaint alleges that Richfield changes its policies re-
garding the posting of union materials on bulletin boards. The
facts deal with postings by employees and Union Representative
Linda Henry. The union witnesses identified how they removed
their own postings and Linda Henry’s postings. Before contract
negotiations, no other limitation was placed upon Linda Henry’s
posting or access. No other manager who testified was asked
about this “blanketing.” The testimony from Henry did not re-
flect any claims that Linda Henry disturbed working employees
or harassed them. I therefore do not find that any managers told
Henry about any difficulties with the bulletin boards. Richfield
did not deny that Linda Henry previously had access and posting
as she and the other union witnesses maintained.
Here, General Counsel established that the Union, particularly
Linda Henry, had long-standing practices of posting on bulletin
boards and access to the hotels. Richfield never presented evi-
dence that it notified the Union or requested bargaining on this
matter. I am particularly persuaded by Costello’s removal of the
posting, when she was seen walking with it, and Eggiman’s di-
rections to Brandon to remove the posting. I therefore find that,
in each instance, Richfield unlawfully removed postings by the
Union and employees and precluded Union Representative
Linda Henry’s lawful access. Because it did not notify the Union
before changing these past practices or give the Union an oppor-
tunity to bargain, Richfield instituted unlawful unilateral
changes in violation of Section 8(a)(5).
2. The 8(a)(1) allegations related to union access
An employer violates Section 8(a)(1) of the Act when it threat-
ens to exclude union agents from a jobsite. Swardson Painting
Co., 340 NLRB 179 (2003). In specifically assessing whether a
remark constitutes a threat, the appropriate test is “whether the
remark can reasonably be interpreted by the employee as a
threat.” Smithers Tire & Auto. Testing of Texas, 308 NLRB 72
(1992). Further, “[T]he test of interference, restraint, and coer-
cion under Section 8(a)(1) of the Act does not turn on the em-
ployer’s motive or on whether the coercion succeeded or failed.”
American Tissue Corp., 336 NLRB 435, 441 (2001) (citing
NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946).)
Richfield provided no evidence that Linda Henry was disor-
derly or harassing employees, nor did it provide evidence of
abuse of access. See generally Houston Coca-Cola Bottling Co.,
265 NLRB 766, 777–779 (1982), enfd. 740 F.2d 398 (5th Cir.
1984). Most of Linda Henry’s testimony went unchallenged.
Throughout her testimony, she was forthright, even when some
of the information contradicted other union testimony and I find
that I could rely upon her statement of facts. Each time a Rich-
field representative told her to get out, employees were close by.
In one instance, the maintenance employee commented, demon-
strating that an employee heard what happened. Richfield was
making a show of its power when it ordered Linda Henry out of
nonworking areas and as such, it is coercive to an employee. De-
spite Henry saying it was a request for her to leave, it was clearly
an order. I therefore find each alleged instance of threats directed
towards Linda Henry, in the presence of employees, violated
Section 8(a)(1).
VI. INFORMATION REQUESTS
The complaint alleges that Richfield failed to provide infor-
mation regarding health care costs and vacation costs. I will re-
view the applicable standard for information requests. For each
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the information requests, I provide additional facts and analy-
sis.
A. Applicable Standard for Information Requests
An employer has an obligation to provide information that is
necessary and relevant for the bargaining representative to carry
out its duties. NLRB v. Acme Industrial Co., 385 U.S. 432, 435–
436 (1967). Information requests pertaining to terms and condi-
tions of bargaining unit employees are “presumptively relevant,”
and the employer must provide the requested information. Dis-
neyland Park, 350 NLRB 1256, 1257 (2007).
The Board reviews relevance under a liberal, discovery-type
standard and whether the information would have some bearing
or use to the union in carrying out its statutory responsibilities.
Public Service Co. of New Mexico, 360 NLRB 573, 574 (2014),
citing Sands Hotel & Casino, 324 NLRB 1101, 1109, (1997),
enfd. 172 F.3d 57 (9th Cir. 1999). The information may be nec-
essary for the union to assess whether to exercise its representa-
tive function, such as advancing negotiations and policing an
agreement. NLRB v. Whitesell Corp., 638 F.3d 883, 894–895
(8th Cir. 2011), enfg. 355 NLRB 635 (2010), affg. 352 NLRB
1196 (2008); Public Service Co. of New Mexico, 360 NLRB 573
(2014). The fact that a union may obtain information by other
means or from another source does not alter or diminish the ob-
ligation of an employer to furnish relevant information. Holyoke
Water Power Co., 273 NLRB 1369, 1373 (1985).
“Like a flat refusal to bargain, ‘[t]he refusal of an employer to
provide a bargaining agent with information relevant to the Un-
ion’s task of representing its constituency is a per se violation of
the Act’ without regard to the employer’s subjective good or bad
faith.” Piggly Wiggly Midwest, LLC, 357 NLRB 2344, 2355
(2012), quoting Brooklyn Union Gas Co., 220 NLRB 189, 191
(1975); Procter & Gamble Mfg., Co., 237 NLRB 747, 751
(1978), enfd. 603 F.2d 1310 (8th Cir. 1979).
The duty to furnish information also requires a reasonable
good-faith effort to respond to the request as promptly as circum-
stances allow. Presumptively relevant information must be pro-
duced within a reasonable period unless the employer estab-
lished legitimate affirmative defenses to production of the in-
formation. Metta Electric, 349 NLRB 1088 (2007); Postal Ser-
vice, 332 NLRB 635 (2000). An unreasonable delay in furnish-
ing such information is as much of a violation of Section 8(a)(5)
as a refusal to furnish the information at all. Castle Hill Health
Care Center, 355 NLRB 1156, 1179 (2010) (citing Amersig
Graphics, Inc., 334 NLRB 880, 885(2001); Good Life Beverage
Co., 312 NLRB 1060, 1062 fn. 9 (1993)).
B. Information request regarding Union’s health care
proposal (¶6(e))
1. Facts
The Union presented healthcare proposals in February. After
calculating the costs of the union plan during a caucus on Febru-
ary 26, Richfield rejected the proposal.
In March, the Union requested the costs to Richfield. Henry,
via email dated March 20 to Union President Nancy Goldman,

27 Respondent’s contends that Goldman did not challenge the calcu-
lations except to say they were skewed. However, Respondent’s brief
stated the proposal would increase cost greater than $1 million
and Richfield rejected the proposal; he reiterated Richfield
would maintain the proposal “consistent with the previous col-
lective-bargaining agreement.”
On March 25, Goldman emailed Henry, and Richfield negoti-
ators Stokes, Costello, Decker, and Hohmann whether Richfield
was referring to UNITE HERE Plan B or the Local 17 plan, and
whether the cost of $1 million was for 1 year of the proposed 5
years. Goldman sent emails to Henry and Stokes again on March
27 and 30 regarding the requested information.
On March 31, Henry sent Goldman an email stating that the
cost was over the life of the proposed contract. On the same day,
Goldman emailed back to Henry that she wanted the calculations
for each year for each of the plans proposed and deadlined him
for April 3. Goldman, on April 4, again requested the infor-
mation and extended the deadline to close of business on April
6. On Saturday, April 4, Henry provided costs for the Local 17
plan and Plan B based upon enrolled associates and included
costs for nonunion members as well. It did not break out only
bargaining unit employees. (Tr. 171; GC Exh. 20.)
On April 6, Goldman responded to Henry and said the infor-
mation was skewed because neither plan allowed nonunion par-
ticipation. Goldman, identifying a need for a more accurate cal-
culation and a more realistic response to an important and costly
issue for employees, asked for the “rest of the information” the
following day. (GC Exh. 20.)27 On April 16, Goldman appar-
ently gave a verbal reminder to Richfield during negotiations,
“[Y]ou’ve never sent any quantification I’ve asked for. You’ve
included in what we’ve proposed non-union members.” (R. Exh.
1, p. 42.) Richfield never provided the information related to
only the bargaining unit employees. (Tr. 171, 234).
Henry testified generally that, during negotiations, he told the
Union that their proposal would impact only the unionized work
force, but Richfield was concerned with both the unionized and
nonunionized employees. He said he told the Union that costs
would be greater if the nonunionized employees were removed
from the same health insurance coverage. (Tr. 569.)
Richfield claims that it met its obligation to provide the infor-
mation and the Union made no further requests. Richfield fur-
ther argues that, on April 6, Goldman did not ask for the infor-
mation again but merely asked for “clarification.” Richfield says
nothing about Goldman’s verbal reminder on April 16. (R. Br.
at 4–5.)
Richfield clearly ignores the Union’s April 6 email, which in-
cluded another request for the information relevant to the bar-
gaining unit and not any other personnel. (See GC Exh. 20.)
Richfield also claimed that the information was equally available
to the Union. Because Richfield failed to consider the docu-
ments, including its own bargaining notes in Respondent’s Ex-
hibit 6, and General Counsel’s Exhibit 20, I also find that Gold-
man verbally reminded Richfield to provide the information on
April 16.
ignores the remainder of the Union’s request, which asked for the “rest
of the information.” Compare R. Br. at 4–5 with GC Exh. 20.
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC 27
2. Analysis regarding the information request for health
insurance costs
Richfield was obligated to provide the costs of the two health
care plans for only bargaining unit employees to the Union and
has failed to produce the information. Group insurance and its
costs are encompassed within the concept of wages and are man-
datory subjects of bargaining. Stowe-Woodward, Inc., 123
NLRB 287–288 (1959). In Sylvania Electric Products v. NLRB,
358 F.2d 591 (1st Cir. 1966), cert. denied 385 U.S. 852 (1966),
the Court held, “[T]he Board could properly find that a union
was entitled to information concerning the cost of welfare bene-
fits, where the union sought ‘better to evaluate the desirability of
an increase in welfare benefits as against an equivalent increase
in take-home pay.”
Similarly, in Cone Mills Corp., 169 NLRB 449 (1968), the
employer refused to provide information relevant to bargaining
over a pension plan. The union requested information as to costs,
actuarial assumptions, and employee census figures. The Board
found the employer’s failure to provide the information violated
Section 8(a)(5) of the Act and “served to frustrate meaningful
bargaining.” Id. at 449.
Richfield contends that no authority exists to demonstrate that
“an employer must provide precisely what the union has asked
for, nor authority for the proposition that a union can demand
that the employer perform calculations, or dig for information,
particularly when such information is equally available or al-
ready accessible to the union.” Richfield cited The Developing
Labor Law (6th ed.)—Tex-Tan, 318 F.2d 472 and Cincinnati
Steel Casing, 86 NLRB 592 (1949).
Tex-Tan, a case issued in 1963, does not comport with current
Board law on what Richfield is required to produce. Cincinnati
Steel Casing, which preceded Tex-Tan, does not demonstrate
that Richfield was relieved from its duty to produce information:
There the union requested a written list on the names of employ-
ees. The employer offered to provide the information orally,
which was sufficient for the size of the bargaining unit at issue.
Id. at 592–593. Therefore, Cincinnati Steel Casing only ad-
dresses the form in which the information was provided, not
whether Richfield maintained the requested records.
On Feb. 26, Richfield was able to cost out covering deducti-
bles during a caucus. How it could do so without being able to
make other calculations is baffling. The costs sent to the Union
on April 4 do not exclude the non-bargaining unit members,
which is the Union pointed out was not of use to it. The failure
to provide this information violates Section 8(a)(5).
C. Information Request Regarding Cost of Richfield’s
Vacation Proposal (¶6(f)):
1. Facts
The Union requested information about vacation costs as well.
On January 20, Richfield proposed to decrease the service time
necessary for vacation accrual. The Union accepted the pro-
posal.
Henry testified that, sometime in February or March, he ex-
plained in negotiations that the rate of turnover precluded calcu-
lating a specific dollar value for vacations. (Tr. 558–559.) How-
ever, Henry testified that Goldman told him to give him “a
ballpark number.” (Tr. 559.) Richfield’s bargaining notes reflect
that this conversation probably took place later than February or
March. When Goldman raised the information request in an-
other negotiation session, Henry claimed he did not remember.
At the April 16 negotiation session, the Union requested quan-
tification of the additional cost to Richfield of the vacation pro-
posal. During negotiations, while discussing economic pro-
posals, Goldman pointed out that the Union had tentatively ac-
cepted the vacation proposal, but the proposal had not been dis-
cussed. She asked what the vacation proposal was worth and
why. (R. Exh. 1, p. 42.) Goldman again told Richfield at the
April 28 negotiation session: “I asked you to quantify [the] va-
cation proposal; you haven’t yet.” (R. Exh. 1, p. 47.)
The Union received no response to its verbal requests. On
May 6, Goldman emailed Henry and Stokes, again requesting the
information on Richfield’s vacation costs. (Tr. 171–172; GC
Exh. 21.)
On September 3, the complaint, including the information re-
quest allegations, issued. By this time, Richfield had not re-
sponded regarding vacation proposals. Richfield filed its answer
on September 17. As noted above, the parties met again on Sep-
tember 24. At negotiations, Goldman renewed her request for
vacation cost information. Henry stated the information was a
moving target. Goldman clarified that she wanted a range, “what
it is worth this moment in time.” (R. Exh. 6, p. 149.) Goff added
that the Union also tried to find the range. Henry stated Richfield
wanted to make sure the benefit would be beneficial and eco-
nomic and must consider what the cost was to the employer.
Goldman said the Union could make a proposal, but Richfield
had to pay for it. Goldman again clarified that the estimate
would be a range, rather than a down-to-the-penny calculation.
(R. Exh. 6, p. 150.)
In Henry’s October 19 email regarding Richfield’s position
that it saw no new changes in the Union’s position, Henry now
included the following information regarding additional vacation
costs:
We understand and hear your request for quantification of the
proposal. As per our discussion at the negotiating table the
change does benefit our associates. Your response on just hav-
ing a ball park figure on what the cost is or will be to the em-
ployer. From what we have surmised this could be a cost of
about $84k (we have the scenario of approximately 65 employ-
ees will be impacted. At an average cost of $1200 for the early
additional week resulting in the $84k).
(GC Exhs. 22 and 23(f), p. 4.)
On October 20, via email, Goldman asked if the vacation cal-
culation was for 1 year or for 5. On October 21, Henry re-
sponded: “The information provided is the ball park estimate of
the potential yearly cost once the threshold are realized.” (GC
Exh. 22).
The Union wanted the quantification of the vacation proposal
because it viewed it as “money on the table” that could be shifted
towards a different area, such as health care. Extra vacation was
not a priority and the Union wanted to make adjustments based
upon the information. (Tr. 232.)
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At hearing, Hohmann testified that, in the pie charts, she pre-
pared vacation information on individual employees based upon
prorations from hours working in year 2014 and the vesting table
in the collective-bargaining agreement. (Tr. 501.) Hohmann
said to put all the vacation costs in one document would be a
slow process because everyone worked different hours. (Tr.
501.) At the same time, turnover in the hotels was 50 percent or
more per year. (Tr. 501.) However, Hohmann also said that she
prepared the pie charts based upon assumptions in the vacation.
(Tr. 502.)
2. Analysis regarding the vacation information request
The duty to furnish information requires a reasonable good-
faith effort to respond as promptly as circumstances allow.
Woodland Clinic, 331 NLRB 735, 737 (2000), citing Good Life
Beverage Co., 312 NLRB 1060, 1062 fn. 9 (1993). An employer
must respond to an information request within a reasonable time.
The Board has long held that a delay in providing information
also establishes a violation. Ellsworth Sheet Metal, Inc., 232
NLRB 109 (1977) (3-month delay violative). If an employer is
unable to comply with the request within a reasonable time, it
must instead advise the union with a reason for the noncompli-
ance. IronTiger Logistics, Inc., 359 NLRB 236 (2012), reaffd.
362 NLRB 324 (2015).
Should the employer fail to respond within a reasonable time,
it violates Section 8(a)(5) of the Act. IronTiger Logistics, Inc.,
supra.28 An unreasonable delay decreases the usefulness of the
information to the union. Woodland Clinic, 331 NLRB 735, 736
(2000) (7-week delay). Indeed, an “unreasonable delay” in
providing information is as if the information was not provided
at all. Id.
The information requested is necessary and relevant. See gen-
erally Valley Inventory Service, 295 NLRB 1163, 1166–1167
(1989). Vacation is a benefit that is part of an employee’s wages.
Richfield contends that the delay was de minimis and caused
no prejudice to the Union. Richfield did not respond for 6
months: The delay lasted from April 16 to October 20. During
that time, Richfield gave the Union no indication of why it could
not comply with the request. Despite Richfield’s contention, this
delay is not de minimis and significantly diminished the utility
of the information to the Union. Richfield never told the Union
that it was having difficulties in making the calculations or that
the Union should make its own calculations. Further, it is diffi-
cult to believe that Richfield did not cost out the change in vaca-
tion before Richfield included additional vacation as part of its
proposal.
Richfield contends that the difficulty in attempting to make
such a calculation is trying to hit a moving target. However,
Richfield presented no documentation that it notified the Union
of the difficulties in providing the “ball park” figure. Richfield’s

28 The District of Columbia Circuit Court of Appeals affirmed this
principle but remanded to the Board the determination that the infor-
mation sought ultimately was not relevant. IronTiger Logistics v. NLRB,
__ F.3d ___, available on Westlaw, 2016 WL 2941962 (D.C. Cir. May
20, 2016).
29 Respondent’s brief miscited the supporting case as NLRB v. North
American National Insurance Co.
brief suggests that the request was not ignored but took some
time because calculations were difficult and the Union was in
“an equal position” to make the calculation. Richfield contends
it was virtually impossible to make such a calculation because of
turnover, unknown longevity, the economic changes that might
cause new hires or layoffs, and “an employer’s very purpose in
agreeing to enhance the vacation benefit . . . to enhance employee
retention.” (R. Br. at 5–6.). Richfield identifies a number of
assumptions it allegedly might have used in its calculations.
None of these were shared with the Union. In addition, Richfield
had already made some assumptions and calculations based upon
Hohmann’s preparation of the pie charts. (R. Exh. 4, p. 1, item
7.) Richfield’s claims about difficulties in calculating vacation
were diminished by Hohmann’s testimony that she made certain
assumptions for determining how much vacation an employee
would receive as part of the pie charts. (R. Exh. 4.) Even if one
believed that Richfield had these difficulties, it was required to
notify the Union of these problems.
Richfield also contends that the Union had equal access to the
information, including turnover at the facility. This defense is
unavailing. Because Richfield failed to notify the Union of any
reasons for a delay and did not produce the information for over
6 months, this failure to provide information is the same as not
providing the information at all. Richfield violated Section
8(a)(5) of the Act by failing to provide the vacation cost infor-
mation.
VII. SINCE 11/11/15, RICHFIELD CONDITIONED FURTHER MEETINGS
UPON THE UNION PRESENTING AN ACCEPTABLE PROPOSAL (¶6(M))
A. The Parties’ Positions
1. Richfield’s position
Richfield contends that it is justified in “conditionally declin-
ing to meet with the Union” because a party is not required to
“engage in fruitless marathon discussions” when the parties’ po-
sitions are “calcified.” For this proposition, Richfield cited
Teamsters Local 122 (August A. Busch & Co. of Mass., Inc.), 334
NLRB 1190 (2001), citing NLRB v. American Nat. Insurance
Co, 343 U.S. 395 (1952).29 Richfield defends its decision not to
meet because the parties were “calcified” in their positions. The
term “calcified” implies that Richfield is working upon an im-
passe theory.30 Richfield contends that “only a handful of is-
sues” remained for negotiations, which primarily were wages
and the changes in compensation for the banquet servers. (R. Br.
at 7.) It further relies on Goff’s testimony that the parties went
through every item in Richfield’s proposal. (R. Br. at 8, citing
Tr. 191.)
As a symptom of the calcification, Richfield’s brief contends
that the Union has made no new proposal since April 28. Citing
Goff’s testimony (Tr. 197–210), the Union allegedly made no
30 Respondent never pled impasse as an affirmative defense, despite
arguments about permitting evidence on impasse at the hearing. One
might assume that Respondent failed to timely raise its “calcification”
defense. See generally Harco Trucking, LLC, 344 NLRB 478, 479
(2005) (attempt to deny corporate status or nonexistence defense not
timely when first raised in the posthearing brief to judge). However,
Respondent’s opening statement euphemistically referred to the Union
as “stuck in its position.” As a result, I consider its argument.
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC 29
material moves, even when it presented a proposal on September
24. Richfield states that the email from Henry, dated 11/11 (GC
Exh. 14), was “clear to all.”
On the last day of the hearing, Henry testified in Richfield’s
case-in-chief that the email communicated to the union officials
that Richfield is willing to meet and continue the conversation if
the Union could bring something that would “force us to move
from our current positions.” (Tr. 567). He testified that Richfield
reviewed the Union’s proposal on September 24 and that there
had been no change. (Tr. 567).
Two days before, as an adverse witness, Henry testified that
Richfield’s last proposal was the March 24 “last, best and final.”
(Tr. 116). Henry denied that the Union provided any further pro-
posals and instead said that the Union gave “additions to what
we already have on the table and they have asked us to make
some changes to a few things that are currently in the proposal,
but they have not provided with a new proposal, no.” (Tr. 117
and 124). Henry further testified “[T]hey have not presented an-
ything that will change our positions currently, based on what
we’ve presented.” (Tr. 125).
Henry testified that the Union never asked for longer hours in
bargaining or protested Richfield’s representative not showing
up early enough or not staying long enough. (Tr. 530).
2. General Counsel’s Position
General Counsel contends that parties cannot condition meet-
ing for negotiations upon the presentation of a new proposal.
Twin City Concrete, Inc., 317 NLRB 1313 (1995). In Twin City,
the employer rejected the union’s request for a face-to-face meet-
ing. It instead by letter told the union to submit ideas in writing
so that it could evaluate its concerns and arrange to meet if ap-
propriate. Id. at 1313–1314. The Board there found that the em-
ployer violated Section 8(a)(5) when it failed to meet its statutory
obligation to bargain “by merely inviting the union to submit any
proposition they have to make in writing where either party seeks
a personal conference.” Id. at 1314, citing NLRB v. Cold Storage
Corp., 203 F.2d 924, 298 (5th Cir. 1953) (internal quotations
omitted). General Counsel further contends that Richfield’s vi-
olations of the Act would preclude any allegation of impasse.
B. Analysis
Richfield violated Section 8(a)(5) by refusing the Union’s re-
quest to meet.31 As previously noted, Section 8(d) of the Act
provides that employers and unions alike have a mutual obliga-
tion to meet at reasonable times and confer in good faith about
mandatory subjects of bargaining such as wages, hours, and
terms and conditions of employment. Riverside Cement Co., 305
NLRB 815, 818 (1991) (discussing Sec. 8(d)), enfd. 976 F.2d
731 (5th Cir. 1992). In light of the importance of the obligation
to meet for bargaining, the Board has held that a party that limits,
delays or refuses meetings for bargaining violates Section
8(a)(5) of the Act. Lancaster Nissan, 344 NLRB 225, 227
(2005), enfd. 233 Fed. Appx. 100 (3d Cir. 2007). The quantity

31 The last charge was filed before these events occurred and does not
include this specific allegation. Respondent did not include any new de-
fense in its answer to the amended complaint, did not object to presenta-
tion of evidence on this matter at hearing and presented evidence in re-
sponse to the allegation. I find that this allegation of bad faith bargaining
or length of bargaining does not establish or equate with good-
faith bargaining. NLRB v. American National Insurance Co., 343
U.S. 395, 404 (1952). Although the duty to bargain does not
require fruitless marathon negotiations, it is not done “at the ex-
pense of frank statement and support of its position.” Id. at 403.
To determine whether a party bargained in good faith, the
Board will consider the “totality of the conduct.” NLRB v. Suf-
field Academy, 322 F.3d 196 (2d Cir. 2003). Because the alle-
gation here is a failure to bargain, and not surface bargaining as
a course of conduct, Richfield’s motivation is not relevant. Lan-
caster Nissan, Inc. v. NLRB, 233 Fed. Appx. 100, 104 (2007),
enfg. 344 NLRB 225 (2005). Also see Port Plastics, 279 NLRB
362, 381–382 (1986).
Richfield has the burden of proof to demonstrate that the par-
ties were so deadlocked that further meetings would not be fruit-
ful. Richfield contends that because the parties reviewed all of
Richfield’s proposals, everything has been discussed. However,
Richfield admits that major economic issues were outstanding.
As of September 24, Richfield agreed to negotiate again in
October. It then canceled the negotiations. This position reflects
that Richfield and the Union both believed they had more to dis-
cuss and that negotiations had the potential to be fruitful, rather
than Richfield’s later shift in position. American Standard, 352
NLRB 652–653 (2008), affirmed by three-person Board in 356
NLRB 4 (2010), rev. denied 465 Fed. Appx. 1, reh’g denied
(D.C. Cir. 2012).
I also agree with General Counsel that Twin City applies here.
Richfield here vests itself with the power to determine whether
the Union will offer it enough to change its position. However,
that standard is not correct. When the Union asked to discuss its
proposals, Richfield refused. As in Twin City, Richfield refused
a personal conference, which violated and continues to violate
Section 8(a)(5) of the Act. Also see Columbia College Chicago,
363 NLRB No. 154, slip op. at 5 (2016) (employer unlawfully
required preconditions to bargain).
At the same time, Richfield had not considered all of the Un-
ion’s proposals. Richfield emphasizes all of its proposals were
discussed. This statement is rather telling as it does not state all
of the Union’s proposals were discussed. Further, Henry’s con-
tradictory testimony reveals that he did not consider the Union’s
offer in September to be a proposal and ignores what it identified
as the open issues, such as health insurance. As I have found that
Richfield has not made a clear wage offer and its September 24
bargaining notes reflect that it intended to clarify points, its shift
to sticking with its prior proposals and not bargain is evidence of
bargaining in bad faith.
Richfield’s defenses are unavailing. Teamsters Local 122, su-
pra, upon which Richfield relies, is a surface bargaining case that
examined negotiations over a 2-year period. Richfield also
claims that the parties were so “calcified” that any further nego-
tiations were not warranted. Although this defense smacks of
impasse, it never pled impasse in its answer. Although it
is consistent with the course of conduct alleged in the charges and with
the §8(a)(5) allegations contained in the initial complaint. NLRB v. Fant
Milling Co., 360 U.S. 301, 309 (1959). Accord: Nickles Bakery of Indi-
ana, Inc., 296 NLRB 927, 928–929 (1989).
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
attempted to adduce information regarding “calcification” at
hearing, it never added the defense of impasse. Richfield could
hardly claim an impasse, particularly given the unfair labor prac-
tices found in this decision.32
VIII. SECTION 8(A)(3) ALLEGATIONS INVOLVING GRAHAM
BRANDON AND KELLI JOHNSTON
A. Graham Brandon’s discipline
Brandon received a second written warning for allegedly fail-
ing to call in sick. I will first discuss the applicable law, facts
relevant to Brandon’s discipline and then provide analysis.
1. Applicable law for Brandon’s discipline
Brandon’s case requires a “mixed motive” analysis as the pos-
sible reasons for Brandon’s discipline are both lawful and unlaw-
ful. In determining whether adverse employment action is at-
tributable to unlawful discrimination, the Board applies the anal-
ysis set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The
Wright Line framework requires proof that an employee’s union
or other protected activity was a motivating factor in the em-
ployer’s action against the employee. 251 NLRB at 1089. The
elements required to support such a showing are union or pro-
tected concerted activity, employer knowledge of that activity,
and union animus on the part of the employer. Amglo Kemlite
Laboratories, 360 NLRB 319, 325 (2014); Consolidated Bus
Transit, 350 NLRB 1064, 1065 (2007), enfd. 577 F.3d 67 (2d
Cir. 2009).
Proof of animus and discriminatory motivation may be based
on direct evidence or inferred from circumstantial evidence.
Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184 (2004);
Purolator Armored, Inc. v. NLRB, 764 F.2d 1423, 1428–1429
(11th Cir. 1985). Because direct evidence of unlawful motiva-
tion is seldom available, the General Counsel may rely upon cir-
cumstantial evidence to meet his burden. See Naomi Knitting
Plant, 328 NLRB 1279, 1281 (1999). A showing of animus need
not be specific towards an employee’s union or protected con-
certed activities. Colonial Parking, 363 NLRB No. 90, slip op.
at 1, fn. 3 (2016). Animus can be inferred from the relatively
close timing between an employee’s protected concerted activity
and his discipline. Corn Brothers, Inc., 262 NLRB 320, 325
(1982) (timing of discharge within a week of union organizing
meeting evidence of antiunion animus); Sears Roebuck & Co.,
337 NLRB 443, 451(2002) (timing of discharge, several weeks
after employer learned of protected concerted activities, indica-
tive of retaliatory motive); La Gloria Oil & Gas Co., 337 NLRB
1120 (2002) (timing of discipline imposed 4 months after service
on bargaining team and ULP hearing appearance suspect).
Factors which may support an inference of antiunion motiva-
tion include employer hostility toward unionization, other unfair
labor practices committed by the employer contemporaneous
with the adverse action, the timing of the adverse action in rela-
tion to union activity, the employer’s reliance on pretextual rea-
sons to justify the adverse action, disparate treatment of

32 Richfield would have the burden of proof to demonstrate impasse
and did little to demonstrate its existence. See generally E.I. Du Pont de
employees based on union affiliation, and an employer’s devia-
tion from past practice. Purolator, 764 F.2d at 1429.
An employer does not satisfy its burden merely by stating a
legitimate reason for the action taken, but instead must persuade
by a preponderance of the credible evidence that it would have
taken the same action in the absence of the protected conduct.
T&J Trucking Co., 316 NLRB 771 (1995); Manno Electric, Inc.,
321 NLRB 278, 280 fn. 12 (1996). An employer must show it
consistently and non-discriminatorily applied its disciplinary
rules. Septix Waste, Inc., 346 NLRB 494, 496 fn. 15 (2006).
2. Facts regarding Richfield’s disciplinary action
against Brandon
a. Brandon was an active and known union participant
Brandon, an employee at the Marriott Hotel from May 2011
until August 2015, initially held a position as a cook and was
promoted on merit to lead cook in 2013. His duties as lead chef
included supporting the cook’s line during rush periods, running
a hot Italian buffet and assisting the head chef. (Tr. 258–259.)
Brandon became a shop steward in 2013. As shop steward, he
answered questions about the Union contract and represented
coworkers in disciplinary matters. (Tr. 259.). He dealt with
management, including the head chefs and front of house man-
agers or supervisors. The head chefs he dealt with included Pas-
cal Presa and Robert Ulrich. Both Presa and Ulrich talked with
Brandon about the contract. (Tr. 302.) He became a trustee
shortly after he became a shop steward.
Brandon also served on the Union’s negotiating committee
and attended approximately 10 negotiating sessions, including
sessions throughout January and February.
b. Richfield issued a second written warning to Brandon
on February 25
On February 25, Chef Ulrich presented Brandon with a second
written warning for allegedly not following proper procedure for
calling in with an illness. (Tr. 266; GC Exh. 27.) Brandon noti-
fied Ulrich by text message on the morning of Monday, February
16 that he was unable to work after exposure to extreme heat on
February 15.
On February 15, Brandon began work at 5 a.m. and found the
kitchen area extraordinarily hot when he opened it up. He con-
tacted maintenance to relieve the problem, but nothing was done.
At about 8:30 a.m., he finally discussed the matter with Chef Ul-
rich, who wanted to turn off a number of cooking appliances.
Brandon insisted that orders had to be completed so the equip-
ment had to remain on. Ulrich left the kitchen to see what could
be done about the situation. After Ulrich left, Brandon vomited
and then took a break.
Brandon advised Ulrich and a house manager of what oc-
curred. He went to the Room Service desk to take a further
break. While he was sitting there, Henry walked by and asked if
he was feeling well. Brandon explained why he was sick.
Brandon rested for about 10 minutes before returning to work.
He called another cook, who agreed to come in early but did not
do so. Instead, Brandon worked until 11 a.m., when the other
chef finally came in at his scheduled time. He again became sick
Nemours & Co. v. NLRB, 489 F.3d 1310, 1315 (D.C. Cir. 2007). Colum-
bia College Chicago, 363 NLRB No. 154, slip op. at 5–6.
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC 31
and vomited. He ran his symptoms through Google, which came
back with a diagnosis of heat exhaustion. When Brandon went
home, he had a temperature of 102 degrees. Brandon applied ice
packs and he said he essentially “passed out” until the next morn-
ing.
On February 16, at about 6:15 a.m., Brandon woke up with a
7:00 a.m. shift scheduled. He still felt ill. He directed his son to
call Chef Ulrich and his son left a message. Brandon also texted
Ulrich about getting another chef to replace him for the day. (Tr.
273.)33 On February 17, Brandon returned to work without any-
one mentioning that he was not present for work the previous
day.
On about Friday, February 20, Brandon saw Human Re-
sources Manager Chad Decker around the back line of the
kitchen and asked if Henry was available. Brandon said he had
heard some rumors he might be disciplined because he had not
called in 2 hours before the beginning of the shift. Brandon ex-
plained in detail what happened. Decker said to Brandon, “You
don’t have a pattern of missing shifts or anything of that matter,
so I don’t feel you should be written up.” Decker told him not
to worry about it. (Tr. 274–275.)
On Thursday, February 25, Chef Ulrich approached Brandon
and told him that Henry wanted a “firm discipline” about his ab-
sence on February 16. Ulrich said he would write a “record of
conversation.” A record of conversation is a coaching tool, usu-
ally for a minor mistake. (Tr. 276.) Brandon told Ulrich that as
long as it was not discipline, he was comfortable with it. (Tr.
276.)
Shortly after the “record of conversation,” Ulrich asked Bran-
don to come to his office. Ulrich stated that Henry said Brandon
could not have a record of conversation but had to be given for-
mal discipline. Ulrich reported to Brandon that Henry said he
would write Brandon up himself if Ulrich did not. Ulrich said
Henry claimed Brandon had a history of attendance problems.
Brandon asked Ulrich if he did and stated he was not aware of
any problems. Ulrich said he was not either. (Tr. 277.)34
On the same afternoon, Ulrich, with Sophia Stensrud present
as a management witness, called Brandon to the office again and
presented him with a written discipline form. Although the form
had boxes labeled for the level of discipline, e.g., “verbal warn-
ing, first written warning, second written warning,” none were
checked. The form also contained no discipline of discipline.
Brandon stated he would not sign the form not only because he
did not agree with it, but also because it did not state what level
of discipline he was receiving. Ulrich said it was just a first step
and asked him to sign the form. Brandon declined to sign the
form. (Tr. 277–278). Ulrich presented him with a copy of the
discipline. Exhibit 18, p. 11–12 shows discipline was given on

33 Brandon stated that, for several years, the cooks were supposed to
call the Head Chef if they were not able to report to work. (Tr. 279–
280.).
34 Henry testified that Chef Ulrich came to him with concerns about
Brandon’s attendance and Henry advised him to document it and prepare
disciplinary action. (Tr. 553.) Given the details provided by Brandon
and his forthright demeanor, I credit Brandon’s version. Chef Ulrich and
Decker were not called to testify. As both are within Respondent’s con-
trol, I draw an adverse inference regarding Respondent’s failure to call
them to testify.
February 25, 2015, as a second written warning, not a first writ-
ten warning.
c. Richfield and the Union hold a grievance meeting
The Union filed a grievance for Brandon. Almost 2 months
later, the parties held a meeting about the disciplinary grievance
in Henry’s office. Brandon, Union President Brandt, Henry and
Food and Beverage Director Tyler Kase were present.
Brandt asked why Brandon was issued a final warning. Henry
said Brandon had a pattern of absenteeism and showed him a
write-up from June 26, 2014. The discipline reflected that Bra-
ham allegedly called off too many times and failed to bring a
doctor’s note when he returned. The period covered was May 2
through June 25, 2014, with Brandon leaving on June 26 to ob-
tain a doctor’s note to return to work. (GC Exh. 40.)
Regarding the 2014 write-up, Brandon testified that, during
the period, he had an illness and his son hurt his ankle. He had
talked to Henry about the May/June 2014 discipline, which had
been written up by Chef Pascal Presa and failed to follow the
proper protocol. Brandon testified that, 2 days after he had the
write-up from Presa, Henry told Brandon that it was off his rec-
ord. (Tr. 282.) The discipline that Brandon saw showed it was
taken down from a final warning to a written warning. (GC Exh.
41.) In addition, when Brandon and Brandt saw it at the griev-
ance meeting, the June 26, 2014 discipline had a notation: “This
has been removed from Graham’s file.” (Tr. 283; GC Exh. 41.)35
Brandt asked why the discipline was not in the trash instead
of on Henry’s desk. (Tr. 284). Brandt also asked for proof of
Brandon’s attendance problem. Henry said he spoke with a su-
pervisor who said he had an attendance issue. (Tr. 284–285.)
Brandon said that was impossible because he did not have an
attendance issue and demanded to know who the supervisor was.
The meeting ended and Brandon returned to work.
d. After the grievance meeting, Henry directs Chef Ulrich to
conduct an investigation into Brandon’s attendance history
Within an hour of the grievance meeting, Brandon spoke with
Chef Ulrich in his office. Ulrich told Brandon that Henry in-
structed him to perform a very thorough investigation into Bran-
don’s attendance, check the time clocks and check all of any at-
tendance issues. Ulrich said Henry wanted this information to
prove the attendance issue. (Tr. 286.) Ulrich told Brandon that
he would do what Henry asked because it was his job, but he did
not think he would find anything. (Tr. 286–287.)
Ulrich called Brandon back to his office a few days later. Ul-
rich reported that he only found a single 15-minute tardy during
that time. Ulrich said he would send the attendance record to
Henry. (Tr. 287.)
35 The line labeled “Name of Employee” in GC Exhs. 40 and 41 does
not extend as long as the same form for other employees. I compared
Brandon’s “Employee Performance Discussion” in GC Exhs. 40 and 41
with those of Direen Hodges (GC Exhs. 45(a) and (b)), Daniel McIntyre
(GC Exh. 44(b) and (d)) and Travis Allen (GC Exh. 43). Those forms
all have employee name lines that are longer. I can only conclude that
something was removed before GC Exhs. 40 and 41 were copied for pro-
duction. GC Exh. 40 also had a notation that was not present when Bran-
don saw it at the grievance meeting. (Tr. 284; GC Exh. 40.)
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
e. Richfield and the Union negotiate a settlement of
the grievance
Brandon testified that he eventually heard from Union Presi-
dent Brandt that his second written warning was decreased to a
first written warning pursuant to a grievance settlement.
Brandon testified he was not present during the grievance set-
tlement meeting and did not believe that he should have been
disciplined, particularly in light of Richfield’s inconsistent treat-
ment towards others. (Tr. 288.) Henry contended that Brandon
was present for the 2015 grievance meeting and that the matter
was settled with Brandon’s consent. (Tr. 555.) However, the
grievance itself only reflects that Brandt agreed and has no evi-
dence that Brandon consented.
f. Disparate treatment evidence
Brandon testified that two cooks had worse attendance records
and received less discipline. Neither cook had a role with the
Union. (Tr. 292.). The first cook, August Short, was late at least
10 minutes every day and biweekly, was 30 minutes to an hour
late. On one occasion, about March 2015, Short showed up an
hour and a half late and was intoxicated. Brandon later learned
from Chef Ulrich that Short was sent home. (Tr. 288–289.)
Brandon, as shop steward, was supposed to receive a copy of any
discipline and never received any on Short. (Tr. 289–290.) No
documents were produced that reflected any discipline for Short.
The second cook was Derek Kotvazs, who was scheduled to
work either 3 to 11 p.m. or 3:30 to 11:30 p.m. Brandon said
Kotvazs was late every day between January and March 2014.
(Tr. 291–292.) Brandon was unaware whether Kotvazs received
discipline for those incidents. (Tr. 292.)
Richfield’s disciplinary records reflect that, on November 17,
Kotvasz received a “record of conversation” about who would
find coverage for a shift scheduled for November 22. However,
the discipline also covered events of November 22.
Two incidents occurred with Kotvasz on November 19. The
first incident: Kotvasz did not clocked in and started working,
then left without telling the manager. For the first incident, he
received a first written warning for incidents. This discipline
states Kotvasz was warned “multiple times” about such conduct.
The second incident involved tardiness of at least 2 hours, again
for which he was warned.
Other examples of disparate treatment include:
i. Direen Hodges
Subpoenaed documents show that Richfield initiated disci-
pline against Direen Hodges, a housekeeper, on September 1,
2015. She had five unexcused absences, starting March 28
through July 18, and seven tardies, from March 3 through August
28. For these absences, she received a first written warning.
A discipline on September 8 for Hodges shows that she was
supposed to receive the first written warning on September 1 but
had an additional no call, no show on August 31 and called for
two other shifts within the following week. The discipline now
reflected a final warning. On September 23, Hodges was termi-
nated for two consecutive dates of no call, no show. (GC Exh.
45).
ii. Daniel McIntyre
Richfield also gave a “record of discussion” to Daniel
McIntyre, a steward, for leaving the kitchen. The document con-
flicts on the dates of the discussion, stating both January 6 and
July 9. A verbal warning for McIntyre was also dated January 21
and given to McIntyre on February 26 for a 4-hour tardy, and
then leaving about 2-1/2 hours early.
On July 27, McIntyre incurred another “record of conversa-
tion” about leaving the kitchen, noting it was the fourth such con-
versation in recent weeks on this issue. On August 4, McIntyre
received a final warning for sitting in the break room after work-
ing for only 15 minutes, then deciding to go home when Eg-
giman confronted him. The warning noted, “There have been
several instances over the past few weeks that Daniel is not in
his work area and cannot be located by the chef or a supervisor.”
On September 28, McIntyre received another final warning for a
no call, no show on September 26. This final warning contained
a note: “The disciplinary action to be taken in each case shall be
determined by human resources.” (GC Exh. 44.)
On November 5, McIntyre was ultimately terminated. The
termination was caused by four further incidents of failing to re-
port to work and leaving work without permission. (GC Exh.
44(f).)
iii. Alyse Moore
Moore, a housekeeper, during her first 60 days of employ-
ment, received a “record of conversation” dated December 9,
2014. The record of conversation included “two unexcused call
offs” in the previous month. She also was not following dress
code standards and had twice improperly used a cellular tele-
phone while working. (GC Exh. 38.)
On June 19, Moore received a first written warning for a no
call, no show on June 6. She had a call off on May 3, plus two
tardies on May 2 and June 5. This form included the language
that discipline would be determined by human resources. How-
ever, the form also said that she would need to be free of attend-
ance issues for the following three months. (GC Exh. 38.)
iv. Ray Allen
On December 15, Housekeeping Manager Crystal Adcox
wrote a “record of discussion” on Allen, who had been rehired
on November 23 as a room attendant. Richfield placed a condi-
tion upon Allen’s rehire: Unlike her previous period of employ-
ment, Allen was required to maintain good attendance during the
first 90 days of employment. Within the first 3 weeks of return-
ing to employment with Richfield, Allen called off on 3 separate
days, including her third day of employment. She was 30
minutes tardy on her second day of employment. She also left
early on December 6 and 7 due to “personal issues.” (GC Exh.
38(k).)
v. Richfield’s evidence regarding disciplinary action for others
Richfield also presented a first written warning for Katrina
Welling, a housekeeper, who called in absent three times within
a week. For two of the absences, Welling had no babysitter; the
third day was due to a flat tire. (R. Exh. 7).
On November 21, Richfield had a record of conversation with
Tamra Hutton. She called in sick on October 24, 25, and 26 and
on November 13 and 14. She was reminded to call in 2 hours or
more before the shift and speak with a manager. She also was
reminded not to use social media to call in. (R. Exh. 9.)
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC 33
Richfield presented a number of terminations for “no call no
show” absences. However, it did not present the entire discipli-
nary history on these employees and I find that these have little
similarity to the current allegations concerning Brandon.
3. The parties’ positions and credibility determinations
General Counsel contends that Richfield’s actions were moti-
vated by antiunion animus. In support of this theory, General
Counsel identifies timing, disparate treatment and the late inves-
tigation as evidence of Richfield’s pretextual issues. Enforcing
rules against an employee that are usually not enforced is a vio-
lation of Section 8(a)(3). New Orleans Cold Storage & Ware-
house v. NLRB, 201 F.3d 592, 600 (2000), enfg. 326 NLRB 1471
(1998).
Richfield’s brief contends Brandon never called in on the day
in question and that he had a history of attendance disciplines.
Richfield argues that the record contained no credible evidence
that Brandon’s discipline was related to antiunion animus. Rich-
field cites no case law and fails to deal with disparate evidence,
despite the documents it produced to General Counsel at the
hearing, or changes in the documents to which Brandon testified.
In the alternative, Richfield suggests that the grievance settle-
ment precludes any finding of an unfair labor practice as the mat-
ter is resolved.
In assessing the credibility of the witnesses, neither Chef Ul-
rich nor Chad Decker were called by Richfield to testify. Decker
made an admission against Richfield’s interest regarding Bran-
don’s attendance history and likelihood of discipline. As previ-
ously noted, Richfield failed to call witnesses within its control,
which leads to adverse inferences. Henry also did not dispute
that he saw Brandon while he was ill from the heat.
4. Deferral to the grievance settlement is not appropriate
Richfield suggests that the settlement of Brandon’s grievance
is sufficient, although it never invokes deferral. Therefore, a
threshold issue is whether to defer to the parties’ grievance-arbi-
tration procedure. St. Francis Regional Medical Center, 363
NLRB No. 69, slip op. at 17 (2015); United Hoisting & Scaffold-
ing, Inc., 360 NLRB 1258, 1261 (2014).
Richfield never pled an affirmative defense of deferral in its
answer or at hearing. The facts regarding the settlement were
presented during the hearing but Richfield never amended its an-
swer to include this affirmative defense. In its brief, Richfield
also does not use the term “defer” or cite any case law. However,
it contends that the grievance settlement is binding because the
parties dealt with the same factual dispute and issues, such as
whether Brandon had failed to call in and the weight to be given
to his prior record. Although facts surrounding the grievance

36 Respondent cites no case law for its position. However, the correct
standard for evaluating a prearbitral grievance settlement requires that
settlement agreements be reviewed pursuant to Independent Stave Co.,
287 NLRB 740, 743 (1987). Babcock & Wilcox, supra. If Richfield had
pled deferral as an affirmative defense, the grievance settlement is insuf-
ficient by Independent Stave standards. One of the factors to consider is
whether the discriminatee and General Counsel agree to be bound.
McKenzie-Williamette Regional Medical Center Association, LLC, 361
NLRB 54, 54 (2014). Brandon credibly testified he was not a party to
the settlement. General Counsel could not have been a party to the set-
tlement because the charge was not yet filed. In addition, I cannot
settlement were presented at hearing, I cannot consider Rich-
field’s argument because deferral is an affirmative defense that
must be timely raised in the answer to the complaint or at trial.
Columbia Memorial Hospital, 362 NLRB 1256, 1259 fn. 3
(2015), citing Babcock & Wilcox, 361 NLRB 1127, 1136 (2014)
and SEIU United Healthcare Workers West, 350 NLRB 284 fn.
1 (2007).36
5. Wright Line analysis regarding Brandon
Regarding union activity and employer knowledge of that ac-
tivity, Brandon was an active shop steward as well as a negotiat-
ing committee member. He attended negotiating meetings, in-
cluding those in January, where Henry was in attendance.
As noted previously, antiunion animus may be established by
Richfield’s reasons for issuing a second warning to Brandon are
pretextual. Richfield did not enforce its attendance policies con-
sistently. Hutton called in five times within a month and may
have had the same issue identified with Brandon—use of a text
message to notify a supervisor of an absence. The attendance
records, overall, also reflect more enforcement after February,
and most were issued closer to the hearing. One example is Ray
Allen, who was rehired on the condition of maintaining good at-
tendance within her first 90 days of employment, yet within the
first 30 days, she accrued five absences and left early. Addition-
ally, Kotvasz’s disciplinary actions essentially begin in earnest
in November and do not reflect a period in which Brandon was
advised of any disciplines.
Decker told Brandon he should have nothing to worry about
on his attendance. Then Ulrich told him that he had to give him
discipline. The “leap frog” of Richfield’s disciplinary action,
going to a second written warning when it already told Brandon
that it removed discipline from his file and “not to worry about”
the call-in during February, also demonstrates Richfield’s ani-
mus. Colonial Parking, 363 NLRB No. 90, slip op. at 9.
After the first grievance meeting, which occurred 2 months
after the second written warning was issued, Ulrich told Brandon
that Henry wanted him to make a thorough investigation into
Brandon’s attendance. I find that Chef Ulrich made an admis-
sion against interest when he told Brandon that Henry told him
to find more attendance violations on Brandon. The shift in
Richfield’s position towards Brandon’s February absence and
Henry’s plan to closely examine Brandon’s attendance records 2
months after discipline was issued reflect Richfield’s plan to find
additional reasons to justify its disciplinary action. Enjo Archi-
tectural Millwork, 340 NLRB 1340 fn. 2 (2003) (failure to call
witness and shifting reasons for employer’s action, among other
factors, establish antiunion animus).
substitute my judgment and say that Respondent could have given a
lesser form of discipline and leave the grievance settlement intact. See
generally Yellow Ambulance Services, 347 NLRB 804, 805–806 (2004).
Another Independent Stave factor is whether Respondent has breached
previous settlement agreements. McKenzie-Williamette, supra. Given
the evidence regarding Respondent’s failure to remove certain discipline
from Brandon’s file, remedying the unfair labor practice violation is nec-
essary to ensure that the 2015 discipline is removed from Brandon’s file.
See generally Krist Oil Co., Inc., 328 NLRB 825 (1999). Generally, Val-
ley Material Co., 316 NLRB 704,708–709 (1995) (deferral not warranted
if settlement repugnant to the Act).
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The additional investigation, initiated after the disciplinary ac-
tion and grievance meeting, shows that Richfield did not conduct
a thorough investigation. The events instead show at best a lim-
ited investigation and a tardy reliance upon discipline that was
supposed to be removed from Brandon’s file. Discriminatory
intent may be seen when an employer fails to conduct a mean-
ingful investigation or to give an employee an opportunity to ex-
plain. Diamond Electric Mfg. Corp., 346 NLRB 857, 860
(2006).
Richfield also must demonstrate that it would have disciplined
Brandon for legitimate reasons and actually did so. Richfield’s
treatment must show like discipline for like offenses. Marathon
Le Tourneau Co., v. NLRB, 699 F.2d 248, 252–253 (5th Cir.
1983), enfg. 256 NLRB 350 (1981). Richfield “cannot claim it
treated employees with extensive histories of absenteeism and
tardiness but who were not recognized union sympathizers, the
same way it treated” Brandon. Feldkamp Enterprises, Inc., 323
NLRB 1193, 1202–1203 (1997). Compared to other employees,
Brandon was treated disparately. The most egregious docu-
mented examples were Moore and Allen, particularly as Allen
was rehired despite poor attendance. The evidence shows that,
overall, Richfield’s enforcement of absenteeism rules was hit
and miss. Most of the absence discipline provided by Richfield
occurred after Brandon’s discipline. Others were treated with
more lenience compared to Brandon.
In light of Richfield’s disparate treatment, additional investi-
gation, admissions against interest, and shifting reasons, Rich-
field had pretextual reasons for discipline.37 If a proferred reason
for discipline is pretextual, an employer cannot establish a
Wright Line defense. Relco Locomotives, 358 NLRB 229, 229
(2012), enfd. 734 F.3d 764 (8th Cir. 2013). Because these ac-
tions are pretextual, I find that General Counsel has carried its
burden of proof and Richfield cannot establish a Wright Line de-
fense. The disciplinary action against Brandon violated Section
8(a)(3).
B. Kelli Johnston and Her Attempts to Work More Hours
1. Applicable law
Johnston allegedly was precluded from working more hours
at the Crossings Bar as a bartender and working in housekeeping
as a house person. Denial of “overtime” or more hours consti-
tutes an unfair labor practice when motivated by an employee’s
prounion stance. See generally Marathon LeTourneau Co., 699
F.2d at 254–255. In reviewing these allegations, a refusal to as-
sign additional hours is analyzed as a refusal-to-hire allegation.
Casino Ready Mix, 335 NLRB 463, 464 (2001), enfd. 321 F.3d
1190 (D.C. Cir. 2003). The analysis is based upon the following
elements:
(1) that the respondent was hiring, or had concrete plans to hire,
at the time of the alleged unlawful conduct; (2) that the appli-
cants had experience or training relevant to the announced or
generally known requirements of the positions for hire, or in
the alternative, that the employer has not adhered uniformly to
such requirements, or that the requirements were themselves

37 Additional evidence of antiunion animus is demonstrated by further
unfair labor practices found below, including, but not limited to, discon-
tinuing longevity pay increases in early February.
pretextual or were applied as a pretext for discrimination; and
(3) that antiunion animus contributed to the decision not to hire
the applicants. Once this is established, the burden will shift to
the respondent to show that it would not have hired the appli-
cants even in the absence of their union activity or affiliation.
Casino Ready Mix, 335 NLRB at 464, citing FES, 331 NLRB 9,
12 (2000).
The parties’ burdens of proof are similar to Wright Line, su-
pra. Casino Ready Mix, 335 NLRB at 464. In reviewing these
allegations, I first discuss Johnston’s employment and union his-
tory, the facts regarding the bartender and the houseman allega-
tions, and then provide analysis.
2. Johnson’s employment history and union activities
Johnston has worked as a banquet server at the Rochester Mar-
riott and the Kahler Grand Hotel for 16 years. She averaged
1,000 hours per year. Her schedule includes working night
shifts. Her duties as a banquet server include setting up for spe-
cial reserved parties, serving the meal and cleaning up the room.
She also works as a senior bartender for the banquet department.
(Tr. 313–314.)
Johnson is an active union member. She is the Union’s vice
president, a position she held for the past 2 years. She also had
served as a trustee for 2 years before she was appointed as vice
president. As vice president she attends monthly board meetings
and assesses finances of the Union. She also is a shop steward,
which she performed for 5 years. As shop steward, Johnston an-
swers employee questions and serves as the union representative
during possible disciplinary meetings. For 2015, she served on
the Union’s negotiating committee and attended 11 negotiation
sessions with Richfield, including ten sessions in January
through April.
3. Johnson attempts to work extra hours at the Crossings Bar
a. The Crossings Bistro and Bar has an opening for a bartender
Ericka Scrabeck is the food and beverage manager at the
Crossings Bistro and Bar at the Kahler Inn and Suites. Scrabeck
testified that she had work for bartending because a full-time bar-
tender was leaving on vacation for a month, beginning February
27. (Tr. 589.) She attended a weekly food and beverage man-
ager meeting for all the food and beverage managers with Food
and Beverage Director Tyler Kase. The managers included the
banquet managers. (Tr. 590.)
At a meeting before February 27, Scrabeck testified she said
she would need someone to fill in the bartender position as soon
as possible. (Tr. 590.) Kate Uuland, the banquets manager, said
she might have some interested people. (Tr. 591.) Scrabeck tes-
tified that Uuland told her about Johnston and said Johnston had
not worked in a regular bar environment for some time, so she
might be rusty. (Tr. 592.)
b. Johnson applies for work at the Crossings as a bartender
Johnston testified that, in January, she desired to work more
hours because the banquet department was slow. She spoke with
her manager, Kate Uuland. Uuland advised that she speak with
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC 35
Scrabeck. The following day after her conversation with
Uuland, Johnston went to the Crossings Bar and spoke with
Scrabeck, who said the bar has some available shifts. Scrabeck
assigned her a bartending shift for the following Monday during
the day. Johnston did not fill out any transfer paperwork and was
not instructed to do so. However, Johnston’s personnel file con-
tained a personnel action form (PAF), dated January 28, 2015,
which approved her to work hours at the Crossings Bar. (GC
Exh. 33). Scrabeck denied that the form could have been com-
pleted in January because she had no shifts at that time. (Tr. 602.)
However, the form was initialed by the department head with a
“K” and by Henry.38
Scrabeck testified that she assigned Johnston a daytime shift
that lasted approximately 1 hour. The bar was not busy, and
Johnston served one to two tables. (Tr. 593.)
After Johnston worked the bartending shift, Uuland told her
that she had received an email with positive remarks about her
performance. However, Johnston never received any further
shift assignments at the bar.
Scrabeck also assigned bartending work to Derek Shot. She
gave Shot a full night shift and found that he worked well. After
Shot’s shift, she spoke with him about his availability, which was
a conversation she did not have with Johnston. (Tr. 604.) She
assigned Shot approximately three to five shifts while the regular
bartender was on vacation. (Tr. 596.) Shot was not a member
of the Union’s bargaining team.
During a break in negotiations on February 26, Johnston
spoke privately to Food and Beverage Manager Tyler Kase about
obtaining extra shifts at the Crossings Bar. Kase said he would
speak to the manager in charge whether hours were available.
On February 27 and March 9, Johnston sent Scrabeck text
messages about the extra shifts. Johnston apparently had the
wrong telephone number and the texts were not received. John-
ston sent the March 9 text message when she learned that another
employee, Derek Shot, was working extra bartending hours at
the Crossings Bar. Shot was not a member of the Union’s bar-
gaining committee.
Johnston and Kase were at a negotiation session together.
Johnston again spoke with Kase during a break from negotiations
and stated Shot was working the hours at the bar. Kase said she
did not get any hours because she was not willing to work night
shifts. Johnston denied to Kase that she said she would not work
night shifts. In fact, she worked nights as a banquet server at the
Marriott.
Scrabeck testified that she was a new manager and denied
knowledge of Johnston’s union activities. (Tr. 588, 597.) She
said she had a “gut feeling” about her, despite a good perfor-
mance early in the day. She did not speak with Johnston about
her other experience. Despite having no conversation about
availability, unlike Shot, Scrabeck testified that Johnston could
only work a short time and could not work later.
c. Johnston’s bartending experience
Richfield questioned Johnston about the range of liquors she

38 Costello testified that the initials were Manager Uuland and an as-
sistant in the human resources office, Mandy Cutshall. However, I credit
Scrabeck’s recognition of Henry’s initials because they are similar to
those on other exhibits and the box calls for “Director of HR.”
served as a bartender at the Crossings Bar compared to what she
served in banquets. At the bar, the range of liquors and mixed
drinks was more diverse than in banquets bar, where she usually
worked a smaller, portable bar with fewer drinks. However,
Johnston testified that she also worked as a bartender for 26
years, most of which she spent tending a full bar. (Tr. 327, 336.)
4. Johnston attempts to find extra hours as a houseman
a. The housekeeping department had an opening for a
houseman and Johnston applies
About early April, Johnston heard Marriott housekeeping
posted an opening for a house person. She contacted the house-
keeping manager, Crystal Adcox. They spoke in the housekeep-
ing area about the position. Adcox explained what the position
entailed, including physical requirements. (Tr. 627.) Adcox said
it would be great as she had people working overtime and in-
structed her to complete a piece of paper requesting hours in a
different department.39 Johnston testified that she completed the
paperwork in human resources and turned it in. (Tr. 324.) Alt-
hough Costello admitted that Johnston picked up the form in the
human resources department, Costello and Henry denied Rich-
field received a completed transfer form.
b. Nothing happens with Johnston’s application
On April 6, Costello emailed Adcox. Costello wrote:
Kelli came over here saying that she is going to start training
for a housemen position. Is that correct? I filled out a PAF for
a secondary job code. Is that what you need for me to do?
(GC Exh. 34.)
Adcox responded: “If you feel she would be a good candidate.
I had some attitude issues with her in banquets . . . .” (GC Exh.
34.) Costello testified she did not respond to Adcox’s remarks
and about 1 month later, forwarded the email chain to Henry.
(Tr. 623.) Adcox testified that she and Costello verbally dis-
cussed the need for a transfer form before Adcox could interview
Johnston. (Tr. 635.)
Adcox testified that she did not take any action because she
was waiting for a transfer form that would have been approved
by her manager. She did not receive the PAF from Costello ei-
ther. (Tr. 628, 630.) I do not credit Costello and Adcox’s expla-
nations as something triggered Costello completing the PAF and
neither stated in the email discussion that they needed a com-
pleted transfer form. Costello also failed to testify about the ver-
bal discussion with Adcox about the transfer form.
About 2 weeks after Johnston completed her form in the hu-
man resources department, Johnston spoke with a house person,
Zach, who asked her why she had not been trained yet and that
39 Adcox testified she told Johnston to go to the human resources
department but did not say anything about completing paperwork. (Tr.
628.)
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he was working overtime. (Tr. 325.) Johnston never received
any hours as a houseman in housekeeping. (Tr. 326.)40
c. Reasons why Adcox did not pursue Johnston for a position
Adcox denied hearing any complaints from Johnston’s man-
ager or hearing Johnston discussing wages or the collective-bar-
gaining agreement. She testified she was concerned about what
Johnston could offer the housekeeping department, “if she was
going to come in with a positive attitude, motivating our team
and . . . being in a happy environment.” (Tr. 640.)
Regarding the claim that Johnston had “attitude issues,” Ad-
cox said she also observed Johnston when she brought food to
the housekeepers and talked with them. Adcox said she did not
hear the conversations Johnston had with the housekeepers. Ad-
cox did not observe Johnston while she worked banquets or see
how she interacted with customers. (Tr. 638.)
Adcox was questioned about what “attitude” meant in the
April 6 email. (Tr. 632.) Adcox testified that she based her opin-
ion on attitude was “the last one”: Adcox said Johnston inter-
rupted a meeting she was having with her team, which included
stretching to music. (Tr. 633). Adcox said Johnston walked in,
displayed body language, and told them to be quiet and shut the
door. (Tr. 633–634.) Despite identifying this incident as “the
last one,” Adcox could not recall any other incidents involving
Johnston. (Tr. 634.)
5. Henry’s investigation for Johnston’s desire for more hours
Henry testified that he conducted an investigation into John-
ston’s requests for more hours. He generally said that in speak-
ing with the parties, “she wasn’t getting hours, because it seemed
as if she didn’t want the hours.” (Tr. 556.) Nothing indicates
that Henry spoke to Johnston about the positions.
Regarding the houseman position, Henry said Johnston failed
to complete transfer paperwork, which would be necessary for
the hiring manager at the hotel to conduct an interview and de-
termine whether an applicant should be hired. (Tr. 557.) Henry
denied that Johnston’s union activity had anything to do with
Johnston not receiving additional hours of work.
I credit Johnston as she made it obvious by her interest in these
positions that she was interested in more hours. As a current
employee of Richfield, his testimony is entitled to enhanced
credibility. Advocate South Suburban Hospital, 346 NLRB 209
fn. 1 (2006); see also American Wire Products, 313 NLRB 989,
993 (1994) (current employee providing testimony adverse to his
employer is at risk of reprisal and thus likely to be testifying
truthfully). I do not credit Henry’s testimony regarding his in-
vestigation of Johnston’s requests. The testimony was not spe-
cific when the investigation was conducted or who told him that
Johnston was not interested in more hours. Indeed, the lack of
desire for more hours sounded like some made-up excuse to deny
her hours.
Johnston also denied making any statement that she was not
available for more hours. In addition, much of the banquet work
Johnston performed was in the evening, so it is difficult to be-
lieve that she was not interested in evening hours. Further, had

40 Throughout negotiations Richfield bemoaned how tight the labor
market was in Rochester. The bargaining notes reflect that it was recruit-
ing in Detroit for positions such as housekeeping.
she not been interested in gaining more hours, she would not
have sought out Adcox about the posted houseman position.
Richfield’s belief that she was not interested in additional hours
appears to be greatly mistaken.
6. Analysis regarding Johnston’s attempts to work more hours
a. Bartender
In applying the three-step analysis similar to FES, supra, Rich-
field had an opening for a bartender to cover shifts at the Cross-
ings. Richfield’s attempts to show that Johnston did not have
sufficient experience are unavailing. Scrabeck admitted that she
did not discuss the job in any detail with Johnston. It appears
that Scrabeck could not have known what bartending experience
Johnston had and made assumptions based upon her experience
tending bar in banquets.
Nothing supports Richfield’s ideation that Johnston was not
interested in obtaining additional shifts or working evenings as a
bartender. Scrabeck testified that she did not talk to Johnston
about her availability. However, at hearing and in its brief, Rich-
field claims that Johnston said she was not available for evening
shifts. Food and Beverage Manager Kase, who served on Rich-
field’s bargaining committee and was not called to testify, also
told Johnston that she did not receive shifts because of lack of
availability during the evenings and Johnston told him that she
was indeed available. Johnston therefore made a sincere effort
to obtain more shifts as a bartender. See Jeff McTaggert Ma-
sonry, LLC, 363 NLRB No. 149, slip op. at 1 fn. 1 (2016). Rich-
field’s reason shows animus and pretext: It could not have
known about Johnston’s availability because Scrabeck admitted
she did not speak with her about it.
Scrabeck assigned Johnston only to a day shift and did not
obtain a valid comparison with Shot’s performance on an even-
ing shift. In addition, Scrabeck said she had a gut feeling about
her. This nebulous explanation provides no specific reason why
Johnston could not have been selected, nor did Richfield provide
any evidence it spoke with Johnston about her supposed lack of
qualifications. Lemay Caring Center, 280 NLRB 60, (1986),
affd. sub nom. Dasal Caring Centers v. NLRB, 815 F.2d 711 (8th
Cir. 1987) (table) (employer’s failure to articulate a definite
standard and relying on “gut feelings” raises a suspicion that the
motives are discriminatory).
Animus towards Johnston need not be specific. Colonial
Parking, 363 NLRB No. 90, slip op. at 1, fn. 3. In addition to
Scrabeck’s reliance on her “gut feeling,” Kase and Henry served
on the negotiating committee and were aware of Johnston’s un-
ion activities. Henry performed a sham investigation in which
he did not speak with Johnston. Because I find Richfield ad-
vanced reasons that did not exist and could not be relied upon, it
cannot show it would have taken the action without her protected
activities. Adams & Associates, Inc., 363 NLRB No. 193, slip
op. at 6–7 (2016). Because Johnston applied for an open posi-
tion, was qualified and was denied the bartending position due
to Richfield’s animus and pretextual reasons, I find that Rich-
field violated Section 8(a)(3).
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC 37
b. Housekeeping
Richfield’s brief discusses nothing about Johnston’s attempt
to work as a houseman in housekeeping.
Housekeeping had an opening for a houseman that was posted.
Johnston spoke with Adcox about the position and applied. Alt-
hough Adcox and Costello failed to process her application, an
employee told Johnston that he was still working overtime, so
the position still existed. Costello was familiar with Johnston’s
role with the union negotiations, which were taking place during
this time.
Several facts lead to a conclusion that Richfield’s reasons for
failing to offer the houseman position to Johnston are pretextual.
Those facts include: use of the term “attitude” in Adcox’s email,
the failure to check with Johnston’s manager about her perfor-
mance or observe her performance; Costello’s knowledge of
Johnston’s union activity; the failure of Costello’s email or Ad-
cox’s reply to indicate a need for a transfer form; and again,
Henry’s incomplete investigation.
Adcox could only cite one incident that led her to believe that
Johnston had an “attitude.” A term like “attitude” is often a code
words for union activity. Intercon I (Zercon), 333 NLRB 233
(2001) (“negative attitude” as code word for union support); In
re Phillips Petroleum Co., 339 NLRB 916, 924 (2003) (judge’s
discussion on use of term “troublemaker”); Waste Stream Man-
agement, 315 NLRB 1099, 1132 (1994) (employer did not show
that it relied on “bad attitude” to terminate an employee before
the discriminatee).
Shortly after Johnston expressed interest in the job, Adcox
was in close contact with Costello, who served on the negotiating
committee and typed the bargaining notes. Costello did not deny
that she was aware of Johnston’s most recent union activities.
As with the bartending position, Henry’s investigation was in-
complete as he apparently did not speak with Johnston and pre-
sumed she did not want the hours. This presumption was false.
The explanation is also pretextual because Costello’s email
does not reflect the need for a transfer form but instead states she
completed the personnel action form (PAF) and asked if Adcox
needed anything else. However, Costello testified that she never
received a transfer form, which was required, but Costello asked
Adcox if she needed anything else. Because something triggered
Costello to complete the PAF and Adcox never said that she
needed the transfer form and Costello did not say she needed one
as well, I find that Richfield unjustifiably relied upon the sup-
posed lack of a transfer form. These positions are contradictory
and indicate pretext as well. As found with the bartender posi-
tion, Richfield fails to show it would have taken the same action
absent Johnston’s protected activities. Adams & Associates,
Inc., 363 NLRB No. 193, slip op at 6–7.
General Counsel has demonstrated a prima facie case and
Richfield again did not demonstrate anything but pretextual rea-
sons for failing to hire Johnston in the houseman position. I

41 Respondent asserted other affirmative defenses, including an un-
timeliness defense under Section 10(b) of the Act, in its answer to the
complaint. I have rejected most of Respondent’s affirmative defenses by
my findings and conclusions above. The proponent of an affirmative de-
fense has the burden of establishing it. Babcock & Wilcox Construction
Co., 361 NLRB 1127, 1140 (2014), citing Broadway Volkswagen, 342
therefore find that Richfield failed to hire Johnston for the house-
man position in violation of Section 8(a)(3).41
CONCLUSIONS OF LAW
1. Respondent Richfield is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The following unit is appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the Act:
4. At all material times, the Union has been the exclusive rep-
resentative of the employees in the above-described appropriate
unit, for the purposes of collective bargaining with respects to
wages, rates of pay, hours of employment, and other terms and
conditions of employment.
5. Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act by:
(a) Telling employees they could have raises if their collective-
bargaining representative signed a new collective-bargaining
agreement;
(b) Telling the union representative, in the presence of employ-
ees, to leave the premises;
(c) Removing postings from company bulletin boards.
6. Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act by:
(a) Disciplining Graham Brandon;
(b) Refusing to assign additional work hours as a bartender and
a houseman to Kelli Johnston;
(c) Discontinuing longevity pay increases provided in the Sun-
stone collective bargaining agreement, Appendix A.
7. Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act by:
(a) On February 28, 2015 and thereafter, unlawfully discontin-
uing longevity pay increases contained in the Sunstone con-
tract, at Appendix A, without notifying the Union or negotiat-
ing to impasse;
(b) Unilaterally discontinuing the past practice of visitation for
a union representative on hotel properties, without notifying the
Union or negotiating to impasse;
(c) Unilaterally discontinuing the past practice of allowing the
Union to post notices on Respondent bulletin boards, without
notifying the Union or negotiating to impasse;
(d) Proposing confusing terms and conditions of employment
with the intent to stall negotiations;
(e) Failing to explain the union leave proposal sufficiently;
(f) Since November 11, 2015, refusing to collectively bargain
upon request with the Union.
8. The aforesaid violations affect commerce within the mean-
ing of Section 2(6) and (7) of the Act.
9. The Act was not violated in any other way.
NLRB 1244, 1246 (2004) (finding the burden on the party raising an un-
timely charge defense under Section 10(b) of the Act), enfd. 483 F.3d
628 (9th Cir. 2007). As Respondent presented no evidence supporting
its other affirmative defenses, including its 10(b) defense at the hearing
and the affirmative defenses were not raised in Respondent’s brief, I will
not address them further.
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
REMEDY
Having found that Respondent Richfield has engaged in cer-
tain unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to ef-
fectuate the policies of the Act.
Having found that the Respondent unlawfully refused to hire
Kelli Johnston for bartending and houseman positions, Respond-
ent will offer her instatement and make her whole for its unlaw-
ful conduct against her. The duration of the backpay period shall
be determined in accordance with Oil Capitol Sheet Metal, Inc.,
349 NLRB 1348 (2007), petition for review dismissed 561 F.3d
497 (D.C. Cir. 2009). Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), and interest
shall be computed in accordance with New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010).
Having found that Respondent unlawfully discontinued lon-
gevity pay increases, it must make the employees whole for any
loss of earnings and other benefits suffered as a result of its un-
lawful unilateral change and its unlawful discrimination. Back-
pay shall be computed in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), and interest shall be computed in accord-
ance with New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
On these finding of fact and conclusions of law and on the
entire record, I issue the following recommended42
ORDER
The National Labor Relations Board order that Respondent,
Richfield Hospitality, its officers, agents, successors and assigns,
shall
1. Cease and desist from
(a) Coercing employees by telling union representatives, in
the presence of employees, that the union representative cannot
be in non-working areas of the facility;
(b) Issuing discipline to employees because of their support
for and activities on behalf of the Union or for engaging in other
protected concerted activity;
(c) Refusing to give employees additional hours because of
their support for and activities on behalf of the Union or for en-
gaging in other protected concerted activity;
(d) Refusing to bargain collectively with the UNITE HERE
International Union Local 21, as the exclusive representative the
employees of the bargaining unit;
(e) Failing or refusing to provide information requested by
the Union, that is necessary for and relevant to the Union’s per-
formance of its duties as the exclusive bargaining representative
of the bargaining unit;
(f) Unilaterally changing the terms and conditions of employ-
ment of its unit employees without first notifying or giving the
Union an opportunity to bargain about those changes, including
but not limited to:
i. Longevity pay increases;

42 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
ii. Access to the facilities by union representatives
iii. Posting on company bulletin boards by union representa-
tives and employees
(g) In any like or related manner interfering with, restraining
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 effectu-
ate the policies of the Act.
(a) On request, bargain with the Union as the exclusive col-
lective-bargaining representative of the employees in the follow-
ing appropriate unit concerning terms and conditions of employ-
ment, and if an understanding is reached, embody the under-
standing in a signed agreement;
(b) Before implementing any changes in wages, hours, or
other terms and conditions of employment of unit employees,
notify and, upon request, bargain with UNITE HERE Interna-
tional Union Local 21 as the exclusive collective-bargaining rep-
resentative of employees in the following bargaining unit:
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, as
agent for The Haler Grand Hotel, Rochester Marriott Mayo
Clinic Area Hotel, and Kahler Inn and 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 Roches-
ter Mayo Clinic Hotel; excluding all other employees, guards
and supervisors as defined in the Act.
(c) Make whole its employees for any losses incurred as a
result of its unlawful unilateral changes made in the terms and
conditions of their employment, including the elimination of the
longevity pay increases contained in the Sunstone contract at Ap-
pendix A. Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), and interest shall be com-
puted in accordance with New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River Med-
ical Center, 356 NLRB 6 (2010).
(d) Within 14 days from the date of this Order, rescind the
unlawful discipline given to Graham Brandon, without prejudice
to his seniority or other rights or privileges previously enjoyed,
and within 3 days thereafter, inform him in writing that this has
been done and that the discipline will not be used against him in
any way.
(e) Within 14 days from the date of this Order, having found
that the Respondent unlawfully refused to hire Kelli Johnston for
bartending and houseman positions, Respondent will offer her
instatement and make her whole for its unlawful conduct against
her. The duration of their backpay period shall be determined in
accordance with Oil Capitol Sheet Metal, Inc., 349 NLRB 1348
(2007), petition for review dismissed 561 F.3d 497 (D.C. Cir.
by the Board and all objections to them shall be deemed waived for all
purposes.
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT FOR KAHLER HOTELS, LLC 39
2009).43 Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), and interest shall be com-
puted in accordance with New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River Med-
ical Center, 356 NLRB 6 (2010).
(f) Compensate all employees and discriminatees for the ad-
verse tax consequences, if any, of receiving a lump-sum backpay
award, 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 year(s). AdvoServ of New Jersey,
Inc., 363 NLRB No. 143, slip op. at 1–2 (2016).
(g) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designed 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 stores in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(h) Within 14 days after service by the Region, post at its fa-
cilities in Rochester, Minnesota, copies of the attached notice
marked “Appendix.”44 Copies of the notice, on forms provided
by the Regional Director for Region 18, after being signed by
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspic-
uous places, including all places where notices to employees are
customarily posted. In addition to physical posting of paper no-
tices, the notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or other elec-
tronic means, if Respondent customarily communicates with its
employees by such means. Reasonable steps shall be taken by
Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by Respondent at any
time since February 28, 2015. Due to Respondent’s high turno-
ver, Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all former employees employed by Re-
spondent at any time since February 28, 2015. In the event that,
during the pendency of these proceedings, Respondent has gone
out of business or closed any of the facilities involved in these
proceedings, Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and former
employees employed by Respondent at any time since February
28, 2015.
(i) Within 21 days after service by the Region, file with the
Region Director for Region 18 a sworn certification of a respon-
sible official on a form provided by the Region attesting to the
steps that the Respondent have taken to comply.
Dated, Washington, D.C. May 27, 2016

43 Although this Order provides for instatement, the instatement
award is subject to defeasance if, at the compliance stage, the General
Counsel fails to carry his burden of going forward with evidence that
Johnston would still be employed in each position had she not been a
victim of discrimination. Oil Capitol Sheet Metal, 349 NLRB at 1354.
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 tell you that we discontinued the longevity pay
increase because the Union has not signed a contract.
WE WILL NOT tell your union representative, in your presence,
that she may not access the facility and is being removed.
WE WILL NOT prevent access to our facilities by Union Repre-
sentative Linda Henry, who sought access to our facilities for the
purposes of collective bargaining.
WE WILL NOT remove Union or employee postings on com-
pany bulletin boards.
WE WILL NOT discipline you, withhold longevity pay in-
creases, refuse to give you extra hours, or otherwise discriminate
against you because you engaged in activities in support of
UNITE HERE International Union Local 21, or any other labor
organization.
WE WILL NOT unilaterally change our practice of allowing un-
ion representatives access to the hotels to post union notices or
to talk to you without first notifying the Union and giving it an
opportunity to bargain.
WE WILL NOT unilaterally discontinue longevity pay increases
without first notifying the Union and giving it an opportunity to
bargain.
WE WILL NOT refuse to bargain collectively and in good faith
by failing to provide to the Union information that is relevant
and necessary to the performance of their duties as the exclusive
collective-bargaining agent of the bargaining unit employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed by
Section 7 of the Act.
WE WILL, upon request, bargain with the Union about wages,
hours, and terms and conditions of employment.
WE WILL, before implementing any changes in wages, hours,
or other terms and conditions of employment of unit employees,
including longevity pay increases, union access to the facilities,
and union posting on company bulletin boards, notify, and upon
44 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.”
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
request, bargain with the Union as the exclusive collective-bar-
gaining representative of employees in the following bargaining
unit:
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, as
agent for The Kahler Grand Hotel, Rochester Marriott Mayo
Clinic Area Hotel, and Kahler Inn and 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 Roches-
ter Mayo Clinic Hotel; excluding all other employees, guards
and supervisors as defined in the Act.
WE WILL, upon request of the Union, restore, honor, and con-
tinue your terms and conditions of employment set forth in the
collective-bargaining agreement with the Union that expired on
February 28, 2015, until a new contract is concluded or good-
faith bargaining leads to an impasse, or the Union agrees to
changes.
WE WILL, upon request of the Union, reinstate the longevity
pay increases stated in the expired Sunstone collective-bargain-
ing agreement.
WE WILL make employees whole for any loss of earning and
other benefits suffered as a result of our unlawful rescission of
longevity pay increases.
WE WILL compensate the above-stated employees for the ad-
verse tax consequences, if any, of receiving a lump-sum backpay
award for longevity pay increases, and WE WILL file with the Re-
gional 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
year.
WE WILL rescind the unilateral change in the parties’ practice
to allow union representatives access to our facilities.
WE WILL rescind the unilateral change that removed postings
from the bulletin boards in non-public areas and WE WILL allow
union postings on company bulletin boards.
WE WILL allow Union Representative Linda Henry access to
the hotel facilities for purposes of union and collective-bargain-
ing activity.
WE WILL make employees and former employees whole, with
interest, for any and all loss of wages and other benefits incurred
as a result of our unlawful discontinuance of the longevity pay
increases.
WE WILL, upon request, provide the Union with necessary and
relevant information.
WE WILL, within 14 days from the date of this Order, offer
Kelli Johnston employment as a bartender and a houseman, who
would have been employed in these position but for our unlawful
discrimination against her, or if those jobs no longer exist, to
substantially equivalent positions, without prejudice to her sen-
iority or any other rights or privileged previously enjoyed, dis-
charging if necessary any employees hired in her place.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to our unlawful refusals to hire re-
garding Kelli Johnston, and WE WILL, within 3 days thereafter,
notify her in writing that this has been done and that our unlawful
refusals to hire her will not be used against her in any way.
WE WILL make Kelli Johnston whole for any losses sustained
as a result of our unlawful failure to hire, plus interest com-
pounded daily.
WE WILL compensate Kelli Johnston for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay award, and
WE WILL file with the Regional Director for Region 18, within 21
days of the date the amount of backpay is fixed, a report allocat-
ing the backpay award to the appropriate calendar year.
WE WILL remove from our files any reference to the unlawful
discipline of Brandon Graham and WE WILL, within 3 days there-
after, notify him in writing that this has been done and that the
discipline will not be used against him in any way.
RICHFIELD HOSPITALITY, INC. AS MANAGING AGENT
FOR KAHLER HOTELS, LLC
This decision can be found at www.nlrb.gov/case/18-CA-
151245 or by using the QR code below. Alternatively, you can
obtain a copy of the decision from the Executive Secretary, Na-
tional Labor Relations Board, 1015 Half Street, S.E., Washing-
ton, D.C. 20570, or by calling (202) 273-1940.