UNITE HERE Local 1(Hyatt Regency Chicago)

National Labor Relations Board - Board Decisions

Apr 30, 2020

369 N.L.R.B. 65 (N.L.R.B. 2020)

369 NLRB No. 65
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.
UNITE HERE Local 1 and Hyatt Regency Chicago.
Cases 13‒CB‒217959, 13‒CB‒220319, and 13‒
CB‒228165
April 30, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On September 26, 2019, Administrative Law Judge
Christine E. Dibble issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel and Charging Party filed answering
briefs.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions1 and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions and to adopt the judge’s recom-
mended Order as modified and set forth in full below.2
ORDER
The National Labor Relations Board orders that the Re-
spondent, UNITE HERE Local 1, Chicago, Illinois, its of-
ficers, agents, and representatives, shall
1. Cease and desist from refusing to bargain collec-
tively with Hyatt Regency Chicago (the Employer) by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Employer’s
ability to prepare for or defend against grievances.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish to the Employer, in a timely manner, the
information requested by the Employer on October 9, 12,
13, and 17, 2017; December 18 and 22, 2017; January 31,
2018; March 12, 13, 20, and 29, 2018; April 9, 10, 16, 23,
26, and 30, 2018; May 10, 2018; and June 8, 28, and 29,
2018, unless it is established in a compliance proceeding
1 In the absence of exceptions, we adopt the judge’s finding that the
Respondent violated Sec. 8(b)(3) by refusing to provide the Employer
requested relevant information.
2 We find merit in the Respondent’s exception to the judge’s recom-
mended remedy requiring it to train its current organizers and represent-
atives in properly responding to information requests. We find that the
Respondent’s unfair labor practices are not sufficiently egregious to war-
rant this extraordinary remedy and that the Board’s traditional remedies
are sufficient to effectuate the policies of the Act. We amend the judge’s
recommended remedy accordingly.
The Respondent also excepts to the judge’s production remedy, argu-
ing that the Employer no longer needs certain requested information. As
the Respondent did not make this argument during the hearing before the
that the Employer has no ongoing need for this infor-
mation.
(b) Within 14 days after service by the Region, post at
its union offices in Chicago, Illinois, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 13,
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 and mem-
bers are customarily posted. In addition to physical post-
ing of paper notices, notices shall be distributed electron-
ically, such as by email, posting on an intranet or an inter-
net site, and/or other electronic means, if the Respondent
customarily communicates with its members by such
means. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(c) Within 14 days after service by the Region, deliver
to the Regional Director for Region 13 signed copies of
the notice in sufficient number for posting by Hyatt Re-
gency Chicago, if it wishes, in all places at its Chicago,
Illinois facility where notices to employees are customar-
ily posted.
(d) Within 21 days after service by the Region, file with
the Regional Director for Region 13 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. April 30, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
judge, we order the Respondent to produce the requested information
unless it establishes in a compliance proceeding that the Employer has
no ongoing need for it. See, e.g., Strategic Resources, Inc., 364 NLRB
No. 42, slip op. at 2 & fn. 4 (2016).
We have modified the judge’s recommended Order to conform to the
Board’s standard remedial language. We shall substitute a new notice to
conform to the Order as modified.
3 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we 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 refuse to bargain collectively with Hyatt
Regency Chicago (the Employer) by failing and refusing
to furnish it with requested information that is relevant and
necessary to the Employer’s ability to prepare for or de-
fend against grievances.
WE WILL furnish to the Employer in a timely manner the
information it requested on October 9, 12, 13, and 17,
2017; December 18 and 22, 2017; January 31, 2018;
March 12, 13, 20, and 29, 2018; April 9, 10, 16, 23, 26,
and 30, 2018; May 10, 2018; and June 8, 28, and 29, 2018,
unless it is established in a compliance proceeding that the
Employer has no ongoing need for this information.
UNITE HERE LOCAL 1
The Board’s decision can be found at
https://www.nlrb.gov/case/13-CB-217959 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
1 Where applicable, abbreviations used in this decision are as follows:
“Tr.” for transcript; “GC Exh.” for General Counsel’s exhibit; “U. Exh.”
for Respondent’s exhibit; “CP Exh.” for Charging Party’s exhibit; “ALJ
Exh.” for administrative law judge’s exhibit; “Jt. Exh.” for joint exhibit;
Elizabeth Cortez, Esq., for the General Counsel.
Bradley Wartman, Esq. and Peter Andjelkovich, Esq., for the
Charging Party.
David Barber, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
CHRISTINE E. DIBBLE, ADMINISTRATIVE LAW JUDGE. This case
was tried in Chicago, Illinois, on January 28‒30, 2019, and April
8–9, 2019. Hyatt Regency Chicago (Charging Party/Hyatt) filed
charges in Cases 13‒CB‒217959, 13‒CB‒220319, and 13‒CB‒
228165 on April 5, 2018, May 15, 2018, and September 27,
2018, respectively. (GC Exhs. 1(a), 1(c), 1(e).)1 On September
28, 2018, the General Counsel issued a consolidated complaint
and notice of hearing for cases 13‒CB‒217959 and 13‒CB‒
220319; and issued an order further consolidating cases, second
consolidated complaint and notice of hearing for case 13‒CB‒
228165 on November 5, 2018. (GC Exh. 1(j).) The second con-
solidated complaint alleges that from about October 7, 2017, to
about June 29, 2018, the Respondent has failed and refused to
furnish the Charging Party with information requested by the Re-
spondent. UNITE HERE Local 1 (the Respondent/the Union)
filed timely answers to both complaints denying all material al-
legations.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel, Charging Party, and the Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Hyatt Regency Chicago (the Charging Party or Hyatt), a cor-
poration, is engaged in the business of operating a hotel in Chi-
cago, Illinois. During the calendar year preceding the filing of
the unfair labor practice charge, the Charging Party purchased
and received goods and materials valued in excess of $5000 di-
rectly from points outside the state of Illinois and derived gross
revenues valued in excess of $500,000. At all material times, the
Charging Party has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find, that at all material times it
has been a labor organization within the meaning of Section 2(5)
of the Act.
“GC Br.” for General Counsel’s brief; “R. Br.” for Respondent’s brief;
and “CP Br.” for Charging Party’s brief. My findings and conclusions
are based on my review and consideration of the entire record.
UNITE HERE LOCAL 1 (HYATT REGENCY CHICAGO) 3
II. ALLEGED UNFAIR LABOR PRACTICES
A. Charging Party’s and Respondent’s Agents
The Charging Party operates a hotel in Chicago, Illinois,
where it employs approximately 1200 employees. Zachary King
(King) is the Charging Party’s director of labor relations. He is
responsible for union contract negotiations, and the grievance
procedure. King is also the ultimate decision-maker on whether
to resolve grievance actions or pursue them to arbitration. Kate-
rina Bircanin (Bircanin) reports directly to King and monitors
the Respondent’s compliance with the collective-bargaining
agreements (CBA) it maintains with several unions. She also
handles information requests from the Union, and attends griev-
ance meetings, mediations, and arbitration hearings.
The Respondent represents more than 16,000 employees in
the Chicago metropolitan area, downstate New York, and Indi-
ana. During the period at issue, the Respondent represented ap-
proximately 800 employees at the Hyatt. The record establishes
that the following constituted a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of
the Act:
All full and regular part-time culinary employees, food and
beverage employees, bartenders, housekeeping employees,
uniform services employees, and banquet employees em-
ployed by the Charging Party at its facility located at 151 East
Wacker Drive, Chicago, Illinois, but excluding clerical em-
ployees, guards, professional employees and supervisors as de-
fined in the National Labor Relations Act.
(GC Exh. 1(j).) In November 2004, Sara Foran (Foran) began
working for the Respondent as a union organizer representing
bargaining unit members at several hotels in the Chicago metro-
politan area. In 2009, she became a lead organizer for the Re-
spondent. In late 2011, the Respondent formed the contract en-
forcement division, and Foran was appointed to head it. Foran,
Administrative Representative Kathy Reynolds (Reynolds), and
three unnamed workers comprised the initial staff in the contract
enforcement division. By June 2017, the contract enforcement
division staff had significantly increased. Eventually Matt
Walsh (Walsh), Rachael Brumleve (Brumleve), and Fatima Ju-
rado (Jurado) came aboard as contract enforcement representa-
tives (referred to, informally, as union representatives); and Bar-
bara Suarez Galeano (Galeano) was hired as a contract assistant.
The Charging Party and the Respondent have had a 40-year
bargaining relationship. The current CBA is effective Septem-
ber 1, 2018, through August 31, 2023. The allegations at issue
arose during the period covered by the prior CBA which ran from
September 1, 2013, through August 31, 2018.2
2 Unless otherwise noted, the CBA referred to throughout this deci-
sion covers the period from September 1, 2013, through August 31, 2018.
3 In the current CBA, the grievance process is set out in Sec. 47 of
the CBA and provides in relevant part:
Any employee or one of a group of employees, any Shop Steward, or
any Union having a grievance may, within not more than seven (7) cal-
endar days after the occurrence of the event resulting in the grievance,
discuss the matter with the immediate supervisor or department head of
the Employer, who will attempt to adjust it within seven (7) calendar
B. Grievance Process Set Forth in the CBA
The grievance process between the Charging Party and the
Respondent is set out in Section 46 of the CBA.3 Section 46
provides in relevant part:
(a) Any employee or one of a group of employees, any Shop
Steward, or any Local Union having a grievance may, within
not more than seven (7) calendar days after the occurrence of
the event resulting in the grievance, discuss the matter with the
immediate supervisor or department head of the Employer,
who will attempt to adjust it within seven (7) calendar days
from the date received. Unless the grievance is thereby re-
solved, the grievance shall no later than fourteen (14) calendar
days from the date of the occurrence, be reduced to writing and
submitted by a designated representative of the Union to the
Employer’s Human Resources Department, which shall submit
its answer to the Union in writing within seven (7) calendar
days thereafter.
(GC Exh. 2(a) at 38.) Prior to filing a grievance with the Charg-
ing Party, the bargaining unit employee contacts the Respondent
to discuss the allegation. The Respondent has developed an in-
ternal grievance intake form which it uses to record bargaining
unit members’ notice to file a new grievance. The form contains
a list of five (5) generalized bases for the grievance. The bases
are listed as:
● Unjust Discipline on or about in violation of all relevant
CBA Provisions including Section(s) [section to be inserted]
● Scheduling on or about [date to be inserted] and is ongoing
and continuing in violation of all relevant CBA provisions
including Section(s) [section to be inserted]
● Sub-Contracting on or about and ongoing and continuing in
violation of all relevant CBA provisions including [section
to be inserted]
● Non-Bargaining Unit Work on or about and ongoing and
continuing in violation of all relevant CBA provisions in-
cluding Section(s) [section to be inserted]
● Other: [nature of grievance to be inserted]
(GC Exh. 3(a).) When the Union representative checks off an
alleged violation, the representative typically includes slightly
more detail, such as the date of the alleged violation and a few
relevant facts. The information included on the intake form com-
prises the basis or bases of the grievance filed with the Charging
Party. Regarding the grievances referenced in this case, the Re-
spondent has refused to share the grievance intake form with the
Charging Party arguing that the document is protected from
days from the date received. Unless the grievance is thereby resolved,
the grievance shall no later than fourteen (14) calendar days from the
date of the occurrence, be reduced to writing and submitted by a desig-
nated representative of the Union to the Employer’s human resources
department, which shall submit its answer to the Union in writing
within seven (7) calendar days thereafter. (GC Exh. 2(b) at 38.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
disclosure under a labor relations privilege and the work product
doctrine.
Grievances that are filed by the Respondent with the Charging
Party are usually first reviewed by Bircanin. She determines
whether the information contained in the grievance is adequate
for her to investigate the allegations. If Bircanin believes that
the information is insufficient for her to assess the validity of the
claim, she submits a request for information (RFI) to the Re-
spondent. Bircanin uses a standardized RFI, with adjustments
made to accommodate the specifics of each grievance. Typi-
cally, the RFI asks the Union to provide: additional facts about
the grievance, all documentation the Union possesses related to
the grievance, and evidence the Union complied with step one of
the grievance procedure. The RFI gives the Union 14 days to
respond to the requested information.
The grievance process also allows for grievance meetings be-
tween the parties. These meetings are for the parties to gather
additional information and attempt to resolve the matter prior to
arbitration. After the Union consults with King and/or Bircanin
on mutually agreeable dates for the grievance meetings, King,
Bircanin, and/or the Charging Party’s Human Resources Direc-
tor David French (French) may meet with the Union representa-
tives, the grievant, or both, to discuss the allegations. Grievance
meetings are generally scheduled at the request of the Respond-
ent, and it is the Respondent who determines which grievances
will be discussed at the meeting. (Tr. 303, 437.)4 The CBA
states that if a grievance is not resolved by the human resources
department, the Union may, with agreement of the Employer,
submit the grievance to mediation (Step 2). If the mediation does
not take place within twenty-eight (28) calendar days of submis-
sion from the date of mediation, the party bringing the grievance
may refer it to arbitration.5
C. Charging Party’s RFI: October 9, 2017
On October 2, 2017, the Respondent filed grievance number
20172063 with the Charging Party. The grievance alleged a vi-
olation of the CBA when “CVS housemen” were “schedule[ed]
on or about 9/21/17 and is ongoing and continuing in violation
of all relevant CBA provisions including Section(s) 31, 30, 32,
4 The Charging Party argued that the Union has frequently begun re-
fusing to hold grievance meetings for grievances related to subcontract-
ing or to management employees performing bargaining unit work (re-
ferred to by the parties as sec. 6 and/or 56 work). Also, the Charging
Party contends that the Union has developed a practice of refusing to
hold grievance meetings for grievances that have been or attempted to be
slated for arbitration. (Tr. 441‒443, 447.) While the parties disagree on
who is responsible for agreeing to whether sec. 6 and 56 work is to be
discussed at the grievance meetings, it is undisputed that such meetings
are rare.
5 The Respondent’s interpretation of the CBA is that step one of the
grievance procedure, that of discussing the grievance with an employee’s
immediate supervisor or department head, is optional, and the Union
may, if it desires, bypass that step and submit a grievance in writing to
the human resources department within 14 days. The Hyatt’s position is
that the first step is not optional, and that the Union may only submit a
grievance after attempting to resolve the issue with an employee’s im-
mediate supervisor or department head. I find that this is purely a ques-
tion of the correct interpretation of the CBA, and thus within the sole
11.” (GC Exh. 3(a).) On October 9, 2017, Bircanin6 responded
in writing to the grievance and also sent a RFI to Reynolds,
Walsh, and Brumleve asking, “in order to complete a proper in-
vestigation and provide a proper response,” that the Respondent
provide “all facts, photos, videos, documents, names, dates,
times, locations and any other information pertaining to this
grievance, including, but not limited to all notes taken by the
Grievant, Shop Steward and Union Representative.” (GC Exh.
3(b) at 1.) Bircanin also requested all “facts, photos, videos, doc-
uments, names, dates, times, locations, and any other infor-
mation” related to any discussion between the union and the
grievants’ supervisor or department head. She explained that the
Charging Party needed this information to determine whether the
Union had engaged in the process proscribed for in step one of
the grievance procedure. Bircanin also indicated that the griev-
ance was deficient because it was vague and only referenced a
single date even though it lists the violation as ongoing and con-
tinuing. According to her, the grievance failed to provide the
Charging Party with enough detail to investigate the incident.7
The deadline for providing the RFI was within fourteen (14) days
from the date of the Charging Party’s response to the grievance.
On October 10, 2017, Jurado, on behalf of the Respondent,
replied to the Charging Party’s RFI in an email noting, “per your
request, here is the information regarding the basis of the afore-
mentioned grievance. Grievant claims that on 09/21/17 &
09/28/17 there was a conflict with the posting of the schedule.
Thank you.” (GC Exh. 3(c) at 3.) On the same day, the Charging
Party renewed its request for information, referencing Jurado’s
email and asking, “is it the Union’s position that the email below
is all the information [the Union] has in its possession that is re-
sponsive to the Hotel’s October 9th request?” Id. The Charging
Party also notified the Respondent that it “should include a nar-
rative explanation and the identification and production of evi-
dence in support of the claim. These timely and complete dis-
closures by the Union are not only required by law but are needed
by the Hotel in order to adequately investigate the basis of the
purview of the arbitration process. Moreover, it is not germane to my
decision regarding the merits of this complaint.
6 Bircanin provided undisputed testimony that although some of the
RFIs were signed by King and others by herself, she was responsible for
sending the RFIs to the Respondent. Occasionally, Bircanin would issue
a few RFIs in her own name, but most were sent in King’s name. (Tr.
45.) Consequently, I will refer to RFI related messages as being sent to
or from Bircanin, even though the messages are sometimes sent from
King’s email address.
7 The Charging Party’s RFIs follow the same format. Although de-
tails such as the date and name of the grievant may vary, the remaining
language in the RFI is the same, as is the information sought and the
arguments made—that the Union’s requested remedy is unavailable, the
grievances are conclusory, the grievances were not “reduced to writing”
as required by the CBA, and the grievances list each violation as “ongo-
ing and continuing” even while they refer to specific limited dates. In the
interests of conciseness, I will not reiterate these arguments for each
grievance discussed below. Rather, unless otherwise indicated, it can be
assumed that each of the Charging Party’s initial RFIs makes the same
arguments and requests the same kinds of information.
UNITE HERE LOCAL 1 (HYATT REGENCY CHICAGO) 5
Grievant’s claims and preserve relevant evidence.” (GC Exh.
3(c) at 3.)8
By email dated, October 12, 2017, Jurado responded to the
Charging Party. The response reads in relevant part:
You can’t be serious. The employer takes action for reasons
which the union only knows from what the grievant is able to
tell us. This information is only fragmentary,at best, since the
employer does not give the grievant complete disclosure of all
information in its possession which led to the action. Then the
union investigates the grievance. The investigation focuses in-
itially on what the employer knows about its own action. It then
extends to finding information meeting the issues raised by the
employer, which may entail further interviews with the
grievant, interviews of witnesses, obtaining documents from
third -party sources, etc. So of course the union will present
more information beyond the initial report by the grievant at
each stage in the processing of the grievance, including arbitra-
tion. The question of whether a grievance followed proper pro-
cedural steps, and if not, whether it should be barred, is for the
arbitrator to decide. John Wiley & Sons v. Livingston, 376
U.S. 543 (1964). Hyatt is obligated to proceed to arbitration on
this grievance. In arbitration, it may assert procedural irregular-
ities as a defense. Because procedural issues are only defenses,
it does not give Hyatt the right to refuse to arbitrate.
The Union will not turn over to HRC notes made by union staff
or shop stewards in the course of investigating and preparing
the grievance for presentation. These notes contain communi-
cations between union staff and stewards and HRC employees.
Section 7 of the NLRA gives employees the right to keep their
union activities confidential. Disclosing their confidential com-
munications to HRC would tend to chill them in their willing-
ness to continue to communicate, thereby hampering the Un-
ion’s ability to represent them and obtain HRC’s compliance
with the agreement. Although the Union would not turn over
these notes to HRC in any event, I note that HRC has repeat-
edly subjected its employees to threats of retaliation for exer-
cising their Section 7 rights in developing information helpful
in prosecuting HRC’s violations of the collective-bargaining
agreement. The notes also contain the impressions of Union
staff and stewards and their strategies for presentation of the
case through the grievance and arbitration procedure. It has
long been the law that an employer has no right to this infor-
mation, even to defend itself in an unfair labor practice pro-
ceeding. If collective bargaining is to work, the parties must be
free to formulate their positions and devise their strategies with-
out fear of exposure. The response presented by the Union pro-
vided all facts known to the Union concerning this grievance.
Attached you will find the form requested.9
8 This language is consistently used in the Charging Party’s renewed
RFIs, with the exception of those made in GC Exh. 9(c).
9 The “form” referenced in the email response was not included in the
record.
10 Banquet stewards carry dishes to and from events, as opposed to
banquet servers, who serve food and drinks to banquet guests. (Tr. 477‒
478.)
(GC Exh. 3(c) at 1‒2.) This email response was used by the Re-
spondent in most of its responses to the Charging Party’s RFIs
in this case. Consequently, hereafter I will refer to this response
as the Respondent’s standard refusal.
On October 13, 2017, the Charging Party again replied by tak-
ing issue with the Respondent’s claim that any notes relating to
its meeting with and interview of the grievant was confidential
and privileged. The Charging Party noted that historically those
notes have been provided to it by the Respondent, and moreover,
the Union must provide a privilege log so that the privilege can
be properly reviewed and challenged. (GC Exh. 3(c) at 1.) The
Respondent did not respond to the Charging Party’s October 13,
2017 email.
D. Charging Party’s RFI: October 12, 2017
On October 5, 2017, the Respondent filed grievance numbers
20172102 and 20172103 with the Charging Party. The griev-
ance number 20172102 alleged a violation of the CBA when “on
or about October 3, 2017 and ongoing and continuing manage-
ment increased [Alex King]’s workload.” (GC Exh. 4(a).) On
October 12, 2017, Bircanin sent its standard RFI to the Respond-
ent. See, GC Exh. 3(b). On October 12, 2017, the Respondent
responded by repeating the grievance without providing any ad-
ditional information: “Grievant claims that on 10/03/17 his work
load increased.” (GC Exh. 4(c) at 4.) On October 13, 2017, the
Charging Party renewed its RFI. On October 16, 2017, Jurado,
on behalf of the Respondent, responded with its standard refusal.
The following day, the Charging Party requested that the Re-
spondent provide it with a privilege log identifying all docu-
ments it claims were privileged, so that the privilege could be
reviewed and challenged. The Respondent did not respond.
Grievance number 20172103 alleged that banquet stewards10
were subjected to “scheduling on or about October 3, 2017, and
ongoing and continuing, in violation of all relevant CBA provi-
sions….” (GC Exh. 4(d).) Upon receipt of the grievance,
Bircanin contacted the managers for the banquet stewards to ask
whether they were aware of any actions which would have given
rise to the grievance. On October 12, 2017, Bircanin responded
to the grievance and issued the Charging Party’s stock RFI to
clarify the nature of the alleged violation.11 The Respondent re-
plied via email that, “Grievant claims that on 10/03/17 utility
stewards are doing the job of the banquet stewards and the ban-
quet stewards are not being scheduled.” On October 13, 2017,
the Charging Party renewed its RFI. On October 16, 2017, Ju-
rado responded with the Charging Party’s standard refusal re-
sponse; and the next day Bircanin requested a privilege log but
the Respondent did not reply.
11 Bircanin testified that she felt that there was not enough infor-
mation for the Charging Party to investigate the grievance because the
grievance listed “banquet stewards” as the grievant but the Union’s re-
sponse indicates that there was one singular grievant; and the grievance
did not explain why the scheduling practice described would be a viola-
tion of the CBA and the harm suffered as a result by the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
E. Charging Party’s RFI: October 13 and 17, 2017
On October 6, 2017, the Respondent filed grievance number
2017211112 with the Charging Party that listed the grievant as
“Big Bar Bartenders” and the basis of the grievance as “on or
about September 28, 2017, and ongoing and continuing manage-
ment is creating a hostile work environment and not treating
workers well.” (GC Exh. 5(a).) Consequently, Bircanin con-
tacted the Charging Party’s human resources department, and at
least two of the Big Bar managers to ask whether they were
aware of any activity at the bar which would have resulted in a
hostile work environment for employees. (Tr. 190.) On October
13, 2017, Bircanin responded to the Respondent with a request
for information. In response to the Charging Party’s RFI, on Oc-
tober 16, Jurado replied, “on 09/28/17 management created a vi-
olent and hostile work environment and is not treating workers
equally. This is an ongoing and continuing issue.” Jurado did
not provide any additional information as part of the Respond-
ent’s reply to the RFI. Bircanin, in turn, renewed the Charging
Party’s RFI on October 17, 2017, asking the Respondent to clar-
ify what the grievant meant by the phrase “violent and hostile.”
Jurado sent the Respondent’s standard refusal. On October 19,
2017, Bircanin asked the Respondent for a privilege log, which
the Charging Party did not receive.
F. Charging Party’s RFI: December 18, 2017
On December 11, 2017, the Respondent filed grievance num-
ber 20172598 on behalf of the named grievant, Antonio Avila
(Avila), alleging a violation of the CBA because Avila was
“schedule[ed] on or about December 1, 2017 and is ongoing and
continuing.” (GC Exh. 6(a).) Bircanin testified that she was able
to speak directly with Chynna West (West)13 as well as review
the department’s records and schedules, and “did not see any-
thing outside of…normal procedure being done.” (Tr. 194; see
also Tr. 74‒75.) Consequently, on December 18, 2017, Bircanin
responded to the grievance and sent a RFI to the Respondent.
The information the Respondent provided was a statement dated
December 21, 2017, noting:
grievant claims that on or about December 1, he was denied an
opportunity to work overtime from Chynna West. Overtime
was instead given to an employee with less seniority and to an
employee in another classification.
(GC Exh. 6(c).) On December 22, 2017, Bircanin replied via
email to Reynolds and Brumleve14 renewing the RFI. Jurado
sent the Respondent’s standard refusal on December 26, 2017.
In response, on December 26, 2017, Bircanin requested that the
Respondent provide the Charging Party with a privilege log but
never received it. Nonetheless, the parties continued to work on
resolving the grievance. Subsequently, in November 2018, a
grievance meeting was held where Bircanin and King inter-
viewed the grievant. (Tr. 195.) During this meeting, Bircanin
first learned that Avila was alleging that on December 11, 2017,
his supervisor gave bargaining unit supervisors overtime in lieu
of Avila; and, unlike the Respondent’s initial RFI response, was
12 It is undisputed that GC Exh. 5(a) incorrectly lists the grievance
number as 20172103. The correct grievance number is 20172111.
13 China or Chynna West is the assistant events setup manager at Hy-
att Regency Chicago. (Tr. 193.)
not claiming that overtime was instead given to employees in
another classification. (See Tr. 78.)
G. Charging Party’s RFI: December 22, 2017
On December 18, 2017, the Respondent filed grievance num-
ber 20172701 signed by Walsh that named the grievant as
“Housekeepers” and indicated that the reason for the grievance
was “scheduling on or about December 4, 2017 and ongoing and
continuing.”15 (GC Exh. 7(a).) Upon receipt of the grievance,
Bircanin contacted the housekeeping for additional information
about the grievance but there was nothing else to provide. Sub-
sequently, on December 22, 2017, Bircanin emailed the Re-
spondent a RFI to gain further insight into the nature of the griev-
ance. On January 2, 2018, Walsh responded with the clarifying
information that “grievant claims on December 4 management
asked over 20 housekeepers to do overtime. This was the result
of a high number of housekeepers that were not scheduled or
called in to work that day.” (GC Exh. 7(c) at 2.) Consequently,
Bircanin contacted department managers, and learned that 20
housekeepers had been given overtime work on the date of the
grievance, but that it was not, to her knowledge, “outside normal
procedure.” (Tr. 82; Tr. 200.) Despite the information she ob-
tained about the grievance, Bircanin believed the grievance was
insufficient because it was vague and lacked the specificity
needed to identify, with certainty, the exact nature of the alleged
violation. (Tr. 201.)
On January 2, 2018, Bircanin renewed the RFI. In response,
on January 9, 2018, the Respondent sent its standard refusal.
Due to the Respondent’s response to the RFI, on January 10,
2018, the Charging Party requested a privilege log, but the Re-
spondent did not reply. The grievance is still pending.
H. Charging Party’s RFI: January 31, 2018
On January 24, 2018, the Respondent filed grievance number
20180153 on behalf of banquet servers alleging that “on or about
January 11, 2018, and ongoing and continuing, management im-
properly paid grievants for a function they worked on December
26, 2017, in violation of all relevant CBA provisions ….” (GC
Exh. 8(a).)16 On receipt of the grievance, Bircanin contacted the
banquet and payroll departments and learned that there were ad-
justments made on the payroll for a December 26, 2017 function.
According to their records, however, there were no improper
payments made on that date. Consequently, on January 31,
2018, Bircanin sent a RFI to the Respondent seeking “all facts,
photos, videos, documents, names, dates, times, locations and
any other information pertaining to this grievance, including, but
not limited to all notes taken by the Grievant, Shop Steward and
Union Representative.” (GC Exh. 8(b).) On January 31, 2018,
Jurado responded on behalf of the Respondent with a written
statement that the grievant alleged on December 26, 2017, a
manager, “authorized to take money from their checks in order
to pay another coworker because of an error with the hours they
worked.” (GC Exh. 8(c).) The response included, as an attach-
ment, a banquet order that listed the customer, date, and location
14 Bircanin, using King’s email address, copied herself and French on
the email.
15 The Charging Party employs approximately 200 housekeepers.
16 The Charging Party employs approximately 180 banquet servers.
UNITE HERE LOCAL 1 (HYATT REGENCY CHICAGO) 7
of the event related to the grievance. After receiving the Re-
spondent’s answer, Bircanin felt it was insufficient because the
response indicated a single grievant whereas the initial grievance
alleged multiple grievants. She also believed the grievance was
vague because it did not list the names of the employees or man-
agers involved in the alleged incident. Moreover, although
Bircanin reviewed the payroll records and determined that on the
date in question an error occurred but was corrected, she was un-
sure whether this pay adjustment was the cause of the grievance.
Consequently, on February 1, 2018, the Charging Party sent a
request for clarification and renewed its RFI to the Respondent.
Jurado sent the Respondent’s standard refusal on the same day.
Later that day, the Charging Party requested a privilege log, but
the Respondent did not respond.
I. Charging Party’s RFI: March 12, 2018
On November 1, 2016, the Respondent filed grievance num-
ber 20162235 on behalf of “all employees” and listed the allega-
tion as, “[n]on-bargaining unit work on or about 10/31/2016, and
is ongoing and continuing, along with the Hotel by its conduct
has and continues to erode bargaining unit work, and, therefore,
the bargaining unit in violation of all relevant CBA provisions
….”17 (GC Exh. 9(a).) Sometime between December 11, 2016,
and July 18, 2017, the Charging Party sent the Respondent a RFI
in response to the grievance. The Respondent’s reply was sent
to the Charging Party on July 18, 2017, which consisted of a
spreadsheet listing 19 separate alleged violations of the CBA.
The spreadsheet lists the date, time, location, manager, witness,
the bargaining unit work performed in violation of the CBA, and
documentation that exists relevant to each violation (text, email,
and/or photo). Witnesses and mangers are also identified on the
spreadsheet but only by their first names. (GC Exh. 9(b).)
After receiving the spreadsheet, Bircanin followed up with a
supplemental information request on August 21, 2017.18 The
RFI asked that for each violation the Respondent, “identify all
steps undertaken to comply with Step 1 of the grievance proce-
dure in the CBA. Also, provide electronic copies of all pictures
or videos.” (GC Exh. 9(b) at 1.) In addition, the RFI demanded
specific information related to each individual entry in the
spreadsheet, such as the surnames of the employees involved,19
the duration of the alleged violations, clarification of the loca-
tions where the alleged violations occurred,20 and a more de-
tailed description of the circumstances surrounding each allega-
tion and the work allegedly being performed in violation of the
CBA. Bircanin did not receive a response to the RFI. Conse-
quently, on March 12, 2018, King renewed the RFI and asked
17 This grievance initially consisted of a single event involving an
employee, Demetrius Jackson. However, the grievance was later ex-
panded to include 19 separate allegations which were listed under one
grievance number (Tr. 211).
18 The form of this RFI deviated from the Charging Party’s standard
RFI referenced in this case.
19 For example, the Charging Party wrote, in response to the above-
mentioned entry on the spreadsheet, “there are multiple employees
named ‘Kevin.’ Do you mean Kevin Barnes? If not, whom (sic) do you
refer?” (GC Exh. 9(b) at 1.)
20 For example, in response to one entry that listed the location as
“grand ballroom,” the Charging Party wrote “What does ‘Grand
the Charging Party to provide the information within seven (7)
days. On March 26, 2018, the Respondent wrote to inform the
Charging Party that it had provided all the documentation that
the Respondent had in its possession about each violation. The
reply also incorrectly noted that Foran, in her initial reply of July
18, 2017, had provided digital photographic images to the Charg-
ing Party, and suggested that these photographs were enough to
answer several of the Charging Party’s queries.21 The record
shows that eventually the Respondent provided the Charging
Party with digital copies of the photographs. (Tr. 213‒214; GC
Exh. 9(b).) Regarding the Charging Party’s other requests,
Brumleve responded via email:
[T]he Union does not currently have the information necessary
to respond to them, and we don’t believe it is reasonable for us
to go and gather that information at this time. Local typically
investigates reports of contract violations to the extent neces-
sary to determine that a violation occurred, then does more de-
tailed investigation when it prepares witnesses just before an
arbitration hearing. The amount of detail you are asking for
here is unreasonable and would require the Union to spend
many hours interviewing witnesses, only to have to repeat the
process right before the arbitration hearing.
(GC Exh. 9(b) at 10‒11.) In response to this email, Bircanin sent
a revised RFI22 on March 27, 2018, asking for the requested in-
formation by March 30, 2018. Brumleve responded on March
29, 2018, with an email that stated, in relevant part:
Thank you for your reply of March 27, 2018. I note you did
not address the Union’s concerns that the Employer’s requests
were in bad faith and would require an unreasonable amount of
time and resources on the part of the Union. Would you please
explain whether you believe the Union has an obligation to in-
terview employee witnesses at this time in order to gather in-
formation to respond to the Employer’s requests? Would you
please also explain why the Employer changed its information
request to omit certain items?
We have taken another look at our records. One thing we dis-
covered is that, as best we can tell, the original digital images
were not transmitted to the Employer along with the spread-
sheet of violations, as we had previously believed. If you had
pointed this out earlier, rather than just repeating your request
with no explanation, we could have gotten you the photos
sooner. I am attaching the original digital image with this
email.
Ballroom’ mean? E.g., inside the ballroom, back of the house, foyer,
etc.” (GC Exh. 9(b) at 2.)
21 For example, in response to the Charging Party’s query as to
whether a manager listed as “Kevin” was Kevin Barnes, the Respondent
replied, “can’t you tell whether the person doing bargaining unit work is
Kevin Barnes from the photographs?” (GC Exh. 9(b) at 10.) In response
to the Charging Party’s query seeking clarification as to what location
the “Grand Ballroom” referred to, the Union stated that “we believe the
information already provided is sufficiently detailed as to the location of
the violation.” (GC Exh. 9(b) at 11.)
22 Bircanin testified that she and King revised the information request
together after re-evaluating what information the Charging Party needed
to investigate the grievance. (Tr. 94‒95.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
As for your question about Step 1 compliance, we believe you
have this information already, but here is the best we can gather
from our records: A general grievance was sent by Demetrius
Jackson to you on about November 1, 2016, which discussed
the 10/31/2016 violation and stated that violations were ongo-
ing and continuous. We believe you have a copy of this, but if
you don’t, let us know and we’ll dig one up for you. Then, on
about July 18, 2017, Sara Foran sent you a spreadsheet “of all
the violations contained in this grievance “, along with all the
supporting documentation the Union had for each allegation -
emails, text messages, and photos. We believe that is the extent
of “Step 1” interaction for these allegations. As you know, for
several years the parties have had continuing interactions at
many levels, including arbitration proceedings, about allega-
tions of violations of Section 56 of the CBA.
As for the remainder of your requests, we can tell you that the
11/18/2016 entry on the spreadsheet does appear to be a typo,
since the supporting documentation indicates November 13.
The “Rob” referred to in that allegation is Robert Harris. As
for your other questions about people’s last names, we might
be able to make some guesses based on the provided documen-
tation. For example, the 1/17/2017 documentation, which we
provided you, refers to “executive steward Angelo.” We can
infer from this that the individual is indeed Angelo Brimmer.
But we don’t want to be in the position of making guesses
based on information we have already provided you. We be-
lieve the Employer is in a better position to make these infer-
ences at this time, since you know who your managers were.
As for the remainder of your information requests, the Union
reasserts that we believe they have been made in bad faith, that
they require an unreasonable amount of Union resources for
responses at this time, and that if you insist on responses you
are misusing the information—request process by trying to turn
it into a litigation discovery process for the upcoming arbitra-
tion. We have given you all the documentation we have about
these violations. If you disagree with any of this, please explain
why.
(GC Exh. 9(b) at 8.) In its response, the Respondent also at-
tached files and suggested scheduling a time to meet and discuss
“how to improve the processes of requesting and sharing infor-
mation about grievances.” (GC Exh. 9(c) at 1.) The attached
files included email and text message correspondence between
Foran and several bargaining unit employees, with employees
describing instances of violations of section 65 of the parties’
CBA. (GC Exh. 9(b).)
After reviewing the digital files, the Charging Party emailed
another revised RFI to the Respondent requesting, among other
things, that the Charging Party confirm the names of the manag-
ers whose surnames were not present in the digital files, clarify
the locations where alleged violations occurred, list the exact
times and durations of the alleged violations, and the metadata
for the digital files. The Charging Party also notified the Re-
spondent that it declined to agree to a meeting because it did not
believe a meeting would be “necessary or productive at this time
since the requests have been provided to the union and the union
refused to answer them as outlined in your correspondence.”
Further, the Charging Party reproached the Respondent for
providing untimely information, noting:
Furthermore, on March 29, 2018, for the first time the Union
provided some untimely information:
 For example 5/17 date—we were previously not able to
identify manager, but color picture provided allows us to do
so. However, it has been almost a year from the alleged in-
cident date and now would be the first time we can talk to
our manager about the incident.
 The grievant is Demetrius Jackson identified [sic] for the
first time.
 Some pictures that the union had in its possession were pro-
vided for the first time allowing the Hotel to identify an in-
cident and an alleged manager.
(GC Exh. 9(c).) The email concluded with:
There have been many problems in arbitrations where the Un-
ion for the first time disclosed evidence which was previously
requested and not provided. The Hotel will not permit arbitra-
tion by ambush in violation of its due process rights. The Un-
ion is under obligation to provide all facts, documents, photos,
videos, names of witnesses, dates, times, location, and other in-
formation that are the basis for Grievance No. 20162235. It has
not done so. Since the Hotel still has not received answers to
all of its requests, the Hotel will respond accordingly. (Id.)
Brumleve responded on April 5, 2018, objecting to the infor-
mation requests as unreasonable and in bad faith. (GC Exh. 9(c)
at 1.) Subsequently, the grievance settled.
J. Charging Party’s RFI: March 13, 2018
On February 13, 2018, the Respondent sent the Charging
Party a list of open grievances and one of the grievances listed
was number 20171930. On March 13, 2018, the Charging Party,
via email, requested that the Respondent resend a copy of griev-
ance number 20171930 because it did not have a record of it be-
ing filed. (GC Exh. 10(a).) The Respondent did not provide a
copy of the grievance, but rather offered to formally settle it.
Consequently, the Charging Party sent additional requests asking
for a copy of the grievance, but the Respondent never provided
it. It is undisputed that grievance number 20171930 was never
filed with the Charging Party but rather was administratively
closed by the Respondent.
K. Charging Party’s RFI: March 20, 2018
On March 13, 2018, the Respondent filed grievance number
20180538 alleging that the Charging Party violated the CBA
when “all employees” were negatively impacted by the Charging
Party “subcontracting on or about 3/5/2018, and ongoing and
continuing ….” (GC Exh. 11(a).) Bircanin testified that she still
felt the details provided in the grievance were insufficient to
properly investigate the grievance because, in her opinion, it was
impossible to determine who witnessed the incident, and the time
and location of the incident. (Tr. 103‒104.) Consequently, on
March 20, 2018, Bircanin sent a response to the grievance and a
RFI to Walsh and Reynolds seeking clarification of the griev-
ance. The Respondent answered that “Grievant claims that on or
about 03/05/18 United Maintenance was seen polishing the
UNITE HERE LOCAL 1 (HYATT REGENCY CHICAGO) 9
landing.”23 In an effort to gain further clarification about the ex-
act nature of the grievance, King and Bircanin spoke with Floyd
Holland (Holland), a housekeeping guest runner and shop stew-
ard, and learned that United Maintenance had performed work
outside in the back of elevator landings in the east tower of the
hotel. Based on this information, the Charging Party felt that it
had not violated the CBA since this type of cleaning was not reg-
ularly done by the Charging Party’s employees because they
lacked the proper equipment.
Subsequently, on March 23, 2018, the Charging Party sent a
renewed RFI seeking, among other items: the duration of any
alleged instances of subcontracting in violation of the CBA; spe-
cific bargaining unit members harmed by the alleged violations;
and the time, locations, and number of subcontractor employees
alleged to have worked in violation of the CBA. The Respondent
sent its standard response. On March 28, 2018, Bircanin replied,
in relevant part:
Arbitrator Kossoff previously ruled that when a written griev-
ance is filed lacking essential information to allow the Hotel to
frame a response, the harm to the Hotel as a result of this defi-
ciency would be alleviated by the Union supplementing the
grievance with the necessary information upon request by the
Employer….Contrary to your claim, Local 1 is not allowed to
produce “only fragmentary” information. It is obligated to pro-
duce the information requested by the deadline set forth by the
Hotel. In fact, your concession that “the union will present
more information beyond the initial report by the grievant at
each stage in the processing of the grievance, including arbitra-
tion” is directly contrary to the Union’s lawful obligations.
As the Hotel has notified the Union multiple times in the past,
the Union’s unlawful delays in timely providing the Hotel re-
sponses to its information demands has resulted in the spoiliza-
tion of relevant evidence such as security video and the ability
of witness being able to recall the event or witnesses leaving
the Hotel’s employ. So that this important evidence can be pre-
served, the Hotel insists that the Union provide all information
requested in this grievance within seven days.
(GC Exh. 11(c).) The email also asked for a privilege log relat-
ing to any documents the Respondent was withholding under a
claim of privilege. The Charging Party did not receive a reply.
L. Charging Party’s RFI: March 29, 2018
On March 22, 2018, the Respondent filed grievance number
20180662 on behalf of employee Jackie Kizer (Kizer) alleging
“unjust discipline on or about 3/8/2018 in violation of all rele-
vant CBA provisions ….” (GC Exh. 12(a).) Bircanin learned
that the grievance related to a suspension issued to Kizer after a
verbal altercation she had with a manager. Subsequently, on
March 29, 2018, the Charging Party responded to the grievance
and issued a RFI to the Respondent seeking all information re-
lated to the grievance and asking whether the Respondent had
followed step one of the grievance process. On March 29, 2018,
23 United Maintenance is a contractor that the Charging Party hires to
clean certain areas of the hotel. (Tr. 226.)
24 The Charging Party compensates banquet servers based, in part, on
a percentage of the service charge of the banquet event they work.
the Respondent answered the RFI with an email that merely re-
iterated the grievance: “Grievant claims that on March 8, 2018,
she was wrongfully suspended.” On March 30, 2018, the Charg-
ing Party renewed its RFI; and on April 3, 2018, the Respondent
replied with its standard refusal.
On April 5, 2018, the Charging Party sent an email to the Re-
spondent stating the information provided was insufficient to un-
derstand the allegation that Kizer had been wrongfully sus-
pended and asked for a privilege log “in case there was infor-
mation the union was claiming privilege on.” (Tr. 110). The
Charging Party had no further communication with the Respond-
ent regarding the grievance and did not receive the requested
privilege log. At some point, however, the Charging Party did
provide a surveillance video to the Respondent documenting the
incident that led to the suspension and ultimate termination.
M. Charging Party’s RFI: April 9, 2018
On June 9, 2017, the Respondent filed grievance number
20171159 on behalf of “all bargaining unit workers.” The basis
for the grievance “scheduling on or about 6/6/2017 and ongoing
and continuing …” and “Non-Bargaining Unit Work on or about
6/6/17 and ongoing and continuing in violation of all relevant
CBA provisions including Section(s) 56.” (GC Exh. 13(a).) The
Charging Party submitted RFIs to the Respondent on June 16,
2017, and follow-ups to the RFIs on June 30, 2017, and July 7,
2017. (GC Exhs. 13(b), 13(c).) The Charging Party sent supple-
mental RFIs to the Respondent on April 9, 2018. On April 12,
2018, the Respondent answered with its standard refusal. Even-
tually, the Respondent provided the information. (U. Exh. 14.)
The grievance settled months later.
N. Charging Party’s RFI: April 10, 2018
On April 3, 2018, the Respondent filed grievance number
20180692 on behalf of the “banquet servers” alleging that “on or
about March 23, 2018 and ongoing and continuing management
is improperly paying grievants for a discounted function in vio-
lation of all relevant CBA provisions ….” (GC Exh. 14(a).) On
receipt of the grievance, Bircanin contacted the banquet servers’
department to ascertain whether there was additional information
about the incident leading to the grievance filing. Subsequently,
on April 10, 2018, she sent a RFI to the Respondent asking for
all information the Respondent possessed relating to the griev-
ance as well as information relating to the Respondent’s compli-
ance with step one of the grievance procedure.
Jurado replied to the RFI with additional information, inform-
ing Bircanin that “grievant claims that on March 23, 2018, they
were improperly paid for a discounted function. Grievant was
told it was a lunch for Patrick Donnelly, manager of the year, but
it was an awards function.”24 (Tr. 115.) The email also included
a list of 20 employees who worked the event and a banquet order
for the event. (U. Exh. 15.) Consequently, on April 18, 2018,
Bircanin renewed its information request to the Respondent.
(GC Exh. 14(c).) On April 19, 2018, the Respondent answered
with its standard refusal. Id. In response, Bircanin sent an email
Certain types of “discounted events” (such as in-house functions and pro-
motions) yield a lower pay rate. An in-house lunch for the manager of
the year would be discounted, but not an awards function.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
to Walsh and Reynolds on April 23, 2018, asking for a privilege
log and specifically requesting that the Respondent explain what
the grievance meant when it stated that the grievant was incor-
rectly told the function was a lunch for the manager of the year.
Bircanin also asked who participated in the discussion, when it
took place, and if the Respondent possessed any notes related to
the discussion. The Respondent did not reply, and the grievance
is still pending.
O. Charging Party’s RFI: April 9, 2018
On April 9, 2018, the Respondent filed grievance number
20180751 on behalf of Jesus Ocampo (Ocampo) alleging he was
subject to “unjust discipline on or about 3/14/2018, and ongoing
and continuing.” (GC Exh. 15(a).) On receipt of the grievance,
the Charging Party responded to it and submitted RFIs to the Re-
spondent asking for all information the Respondent had relating
to the grievance as well as information relating to its compliance
with step one of the grievance process. The Charging Party gave
the Respondent 14 days to respond. The deadline lapsed without
a response from the Respondent so on April 30, 2018, the Charg-
ing Party sent another RFI with a 7-day deadline to respond. The
Respondent did not reply. Consequently, on May 7, 2018, the
Charging Party sent a second follow-up RFI but again the Re-
spondent did not answer.
P. Charging Party’s RFIs: April 26 and May 10, 2018
On April 19, 2018, the Respondent filed grievance number
20180867 on behalf of “banquet employees.” The basis for the
grievance was “scheduling on or about 4/13/2018, and ongoing
and continuing.” (GC Exh. 16(a).) On receipt of the grievance,
Bricanin contacted the banquet department to determine whether
improper scheduling of the banquet servers had occurred. Based
on her investigation she was unable to reach a definitive conclu-
sion on the specific nature of the grievance claim. Therefore, on
April 26, 2018, the Charging Party sent the Respondent RFIs
asking for all information it possessed relating to the grievance
as well as information relating to the Respondent’s compliance
with step one of the grievance process. Pursuant to an email,
Jurado responded on behalf of the Respondent writing:
“Grievant claims that on 04/12/13 and 04/13/18 there was a vio-
lation in the Banquet Department. The agreement that was es-
tablished in the contract regarding functions and job descriptions
was broken.” The response included an attachment which con-
tained a handwritten list of banquet employee’s signatures be-
neath Spanish text as well as English text reading “Hyatt Re-
gency Chicago function box lunch.” (GC Exh. 16(i).)
Bircanin asked one of the Charging Party’s Spanish-speaking
managers, Ana Montoya (Montoya), to translate the Spanish text
included as part of the Respondent’s answer. According to
Bircanin, she was told that the Spanish text translated to “there
was a big violation in the banquet department based on union
contract including description of work.” Based on the transla-
tion, Bircanin insisted she was still unable to understand the na-
ture of the grievance. She acknowledged, however, that she
25 The Charging Party has a restaurant and bar bearing the name
“American Craft” but the hostesses work at the restaurant.
26 Bircanin also testified that she was confused by the Respondent’s
answer describing the grievant in the singular because the initial
could have used the information provided by the Respondent,
coupled with company records, to ascertain which events the em-
ployees whose signatures were on the attachment worked, but
did not do so. (Tr. 253‒257.)
On May 10, 2018, the Charging Party’s renewed its infor-
mation request by asking for, among other items, the Respondent
to explain the basis for its belief that a violation occurred in the
banquet department. The Respondent replied on May 15, 2018,
with its standard refusal. On May 16, 2018, the Charging Party
requested that the Respondent provide it with a privilege log, but
the Respondent did not reply.
Q. Charging Party’s RFI: April 23 and 30, 2018
On April 16, 2018, the Respondent filed grievance number
20180794 on behalf of the “American Craft Hostesses” alleging
that “on or about 4/9/2018, and ongoing and continuing manage-
ment is improperly distributing gratuities for an event in Ameri-
can Craft ….”25 (GC Exh. 17(a).) On receipt of the grievance,
Bricanin contacted the relevant department to review their rec-
ords, but was unable to find evidence of an event occurring on
the date listed in the grievance. Consequently, on April 23, 2018,
the Charging Party sent a RFI to the Respondent asking for all
information the Respondent possessed relating to the grievance
as well as information relating to its compliance with step one of
the grievance process. On April 25, 2018, the Respondent an-
swered by clarifying the nature of the grievance as, “grievant
claims that on or about 04/09/18 A/C Kitchen & Bar staff and all
positions are included on the tips except for the hostesses even
though they are required to work and serve their purpose as a
greeter to the guests of the party. The issue was discussed with
management on 04/09/18.” (GC Exh. 17(c) at 3‒4.)
Despite the Respondent’s reply clarifying the grievance alle-
gation, Bircanin claims she was unable to determine the specific
nature of the grievance because she could not find any records
that an event was held on the date alleged in the grievance.26 On
April 30, 2018, Bircanin renewed the RFI again asking the Re-
spondent to identify the exact event that was referenced in the
grievance because she could not find any documentation that a
function as alleged by the grievance was held on April 9, 2018.
On May 4, 2018, the Respondent sent its standard refusal. The
Charging Party then requested a privilege log for any interview
notes and other requested materials that the Respondent pos-
sessed but the Respondent did not respond.
R. Charging Party’s RFI: April 23 and 30, 2018
On April 16, 2018, the Respondent filed grievance number
20180822 on behalf of Fatima Ibrahim (Ibrahim) alleging that
“on or about 4/10/2018, and ongoing and continuing, manage-
ment improperly sent the grievant home and is improperly sched-
uling ….” (GC Exh. 18(a).) On receipt of the grievance, Bri-
canin contacted the housekeeping department for additional in-
formation about events that may have led to the grievance. She
learned that Ibrahim had come to work with a doctor’s note
which stated that she had work restrictions. Therefore, on April
grievance lists multiple grievants (American Craft hostesses). (Tr. 126‒
27; GC Exh. 17(a).)
UNITE HERE LOCAL 1 (HYATT REGENCY CHICAGO) 11
23, 2018, the Charging Party sent RFIs to the Respondent asking
for all information the Respondent possessed relating to the
grievance as well as information about its compliance with step
one of the grievance process.
On April 25, 2018, the Respondent answered the RFIs by clar-
ifying that Ibrahim was alleging a violation of the CBA when she
was terminated for being unable to handle her workload, not-
withstanding her doctor mandated work restrictions. As part of
its response, the Respondent also noted that Ibrahim alleged a
human resources employee called Ibrahim a liar and told her to
“never come back.” According to the Respondent, this issue had
been discussed with the Charging Party’s management on April
7, 2018.
In an effort to obtain additional information about the griev-
ance, Bircanin contacted several managers in the housekeeping
department who denied that Ibrahim was terminated and told to
“never come back.” She also asked Anna Deringer (Deringer),
the workers’ compensation manager, for details about the alleged
events set out in the grievance. Deringer informed Bircanin that
it was determined that the Charging Party could not accommo-
date Ibrahim’s medical restriction; and therefore, she could not
return to work until her work restrictions were lifted.27
Following Bircanin’s discussion with the housekeeping de-
partment, on April 30, 2018, the Charging Party sent updated
RFIs to the Respondent asking for more specific information, in-
cluding: the basis for the Respondent’s assertion that Ibrahim
had been terminated;28 documentation the Respondent used to
substantiate its claim that Ibrahim had been terminated; the
names of witnesses to the discussion about Ibrahim’s work re-
strictions that allegedly occurred between Ibrahim and manage-
ment; and the name of the person that allegedly yelled at Ibrahim
and told her to “never come back.” On May 4, 2018, the Re-
spondent replied with its standard refusal. Consequently,
Bircanin requested a privilege log for any interview notes and
other requested materials that the Respondent might be with-
holding but received no response.
S. Charging Party’s RFIs: June 8, 2018
On June 1, 2018, the Respondent filed grievance number
20181183 on behalf of Chu Chen (Chen) and Yao Juan Mak
(Mak), room attendants, alleging they were subjected to “sched-
uling on or about 5/18/2018 and ongoing and continuing in vio-
lation of all relevant CBA provisions ….” (GC Exh. 19(a).) On
receipt of the grievance, Bricanin contacted the housekeeping
department to identify the specific alleged scheduling violation
and gather additional information on the underlying facts. The
department did not have any information about the allegation.
Consequently, on June 8, 2018, the Charging Party sent a RFI to
the Respondent asking for all information the Respondent had on
the grievance as well as information relating to the Respondent’s
compliance with step one of the grievance process. The Re-
spondent answered the RFI by restating the grievance, except
that in its response the date of the grievance was changed by one
27 This testimony was corroborated by King.
28 According to Bircanin, Ibrahim was employed by the Charging
Party at the time of the grievance and remains in its employ.
29 Sometime after receiving the grievance, Bircanin questioned man-
agers from the relevant department about Navarro’s accusations, but the
day; and the response referred to the grievant in the singular, de-
spite the original grievance listing two grievants’ names.
Notwithstanding the Respondent’s reply to the RFI, Bircanin
noted that she was still unable to understand the factual basis for
the grievance. Therefore, on June 20, 2018, she renewed the
RFI. The Respondent issued its standard refusal. Consequently,
on June 25, 2018, the Charging Party requested that the Re-
spondent provide it with a privilege log for any interview notes
and other materials that it might be withholding. The Respond-
ent did not respond.
T. Charging Party’s RFIs: June 28, 2018
On June 11, 2018, the Respondent filed grievance number
20181187 on behalf of Carlos Navarro (Navarro), alleging that
he was subjected to “unjust discipline on or about 5/29/18 and
ongoing and continuing in violation of all relevant CBA provi-
sions ….” (GC Exh. 20(a).) Prior to the filing of the grievance,
Bircanin knew that Navarro had been terminated or suspended
and was “somewhat” aware of the facts surrounding it. Never-
theless, on June 18, 2018, the Charging Party issued RFIs to the
Respondent asking for “all facts, photos, videos, documents,
names, dates, times, locations and any other information pertain-
ing to this grievance, including, but not limited to all notes taken
by the Grievant, Shop Steward and Union Representative. Please
provide within 14 days.” (GC Exh. 20(b) at 2‒3.) On June 26,
2018, Jurado replied on behalf of the Charging Party:
Grievant claims 05/17/18, he started work at 2:30 with seven
bars from 5:30‒6:30. When he arrived at the bar, grievant no-
ticed there weren’t any glasses or tables to start prepping. He
called Mago and to tell her he didn’t have glasses to start work-
ing, but she did not answer. Molly, the assistant, arrives and he
tells her the problem and she tells him to call Carina. But since
he’s under a lot of pressure, he took it upon himself and went
to the other tower to get classes and begins to set up tables. A
few minutes later the grievant was called into the banquet man-
ager’s office and was given a write-up. Management then took
pictures of him and sent him home for the day. Grievant feels
there’s one person or several people that are checking every-
thing he does and fells [sic] under a lot pressure.
(GC Exh. 20(b).) On June 28, 2018, the Charging Party sent an
email to the Respondent renewing the RFI, including: the names
of people that allegedly took photographs of Navarro; the names
of people he alleged were “checking up on him”; and copy of the
“write-up” allegedly issued to Navarro on May 17.29 The Charg-
ing Party also requested all information the Respondent pos-
sessed relating to the grievance as well as information relating to
the Respondent’s compliance with step one of the grievance pro-
cess. The Respondent did not provide the requested information.
U. Charging Party’s RFIs: June 29, 2018
On June 13, 2018, the Respondent filed grievance number
20181209 with the Respondent identifying the grievant as
managers involved with the discipline denied taking any photos of Na-
varro. The Charging Party also noted that it did not have a record of the
alleged “write-up” issued on May 17.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
“Convention Services,” and alleging a violation of the CBA be-
cause of “subcontracting on or about 5/30/2018, and ongoing and
continuing ….” 30 (GC Exh. 21(a).) The Charging Party em-
ploys between 30 and 35 workers in the event set-up department.
(Tr. 146‒47.)
On receipt of the grievance, Bricanin contacted the event set-
up department managers, who told her they were unaware that
subcontracting had occurred on the date listed in the grievance.
Consequently, the Charging Party sent RFIs to the Respondent
on June 20, 2018, requesting all information the Respondent had
related to the grievance and, specifically, the purported duration
of the violation, the specific group of bargaining unit employees
harmed, the subcontractor involved, the specific dates the sub-
contractor’s employees performed work, and the type of work
the subcontractor performed. The RFI also requested all evi-
dence related to the Respondent’s compliance with step one of
the grievance process. (GC Exh. 21(b) at 1.) The Respondent
answered the RFI with “grievant claims that around May 30,
2018, an outside company was seen moving CS equipment, and
the issue was discussed with management on June 1, 2018.” (GC
Exh. 21(b).)
On June 29, 2018, the Charging Party renewed its request for
information because it felt that the Respondent’s answer was in-
adequate. The Charging Party believed that the response did not
identify the name of the subcontractor nor the work it allegedly
performed. The grievance also listed only one date, despite list-
ing the violation as being ongoing and continuing.31 On July 3,
2018, the Respondent answered with its standard refusal. Con-
sequently, on July 3, 2018, the Charging Party requested a priv-
ilege log for any interview notes and other requested materials
that the Respondent might be withholding on the basis of privi-
lege. The Respondent did not respond.
III. DISCUSSION AND ANALYSIS
A. Protective Order
During the trial, counsel for the Respondent, David Barber
(Barber) attempted to question Burmleve about the actions and
thoughts of Jurado.32 I sustained counsels for the General Coun-
sel, Elizabeth Cortez (Cortez), and the Charging Party, Brad
Wartman (Wartman) objections to Brumleve’s testimony about
what Jurado knew and the actions she took regarding the RFIs at
issue. (Tr. 839‒856.) Subsequently, Barber moved to waive the
privilege previously asserted regarding the Respondent’s griev-
ance intake forms, notes, and documents submitted by each
grievant (including direct communications to the Union by the
grievant) in order to refresh Brumleve’s recollection. (Tr. 867‒
868, 880, 882‒884; GC Exh. 3(c) at 2, GC Exh. 4(c) at 2.) Cortez
objected, and argued that because the Respondent failed to pro-
vide the documents pursuant to the General Counsel’s subpoena
“[i]t cannot now be used to benefit Respondent to refresh a wit-
ness’s recollection.” (Tr. 868‒869, 871‒872, 874.) I reminded
counsel for the Respondent that if it “waives the privilege with
30 The convention services department’s name has been changed to
the event setup department. (Tr. 146‒147.)
31 King testified that the grievance was deficient because there was
not enough information included to allow the Charging Party to: search
for video footage of the incident, and if available, save it; evaluate the
regards to these grievant forms and any notes attached and the
argument could be made in the future that the Respondent can no
longer claim that privilege on some future cases because they’ve
already waived that privilege.” (Tr. 873.) The Respondent,
through its counsel, acknowledged the risk. Wartman empha-
sized that the Respondent’s actions have prejudiced the Charging
Party’s case because “we’ve had what, four witnesses up, three
witnesses up that have testified without the benefit of that. Now
he wants to bestow upon his witnesses that benefit and deny us
of the same opportunity.” (Tr. 875‒876.)
Considering the Respondent’s decision, through counsel, to
waive its privilege regarding the documents, I ordered the Re-
spondent to turn over the documents in question to Cortez and
Wartman for them to review. Further, I informed the parties that
I would revisit the issue the next day. On the second day of the
administrative trial, the counsel for the General Counsel with-
drew its objection to allowing the Respondent to waive its privi-
lege and use the documents at issue to refresh the recollection of
Brumleve. (Tr. 892‒893.) Although the Respondent was ini-
tially prepared to unconditionally waive its privilege, Barber
later proposed a protective order allowing waiver of the privilege
for this proceeding but not allowing the documents and infor-
mation to be used in any other proceedings. (Tr. 897.) However,
the Charging Party argued that after reviewing the documents it
believed they are not privileged materials and the documents
“undermine” the Respondent’s case. (Tr. 896.) Moreover, the
Charging Party stated that the proposed protective order should
be rejected and the privilege considered waived because: the Re-
spondent initially waived its “privilege” without restriction; the
Respondent has not proffered a legal basis for the “privilege”;
the Respondent did not produce a privilege log to support the
claim of privilege in the subpoena response, thus waiving the
privilege; and the need to share with its client the contents of the
“privileged” materials in order to assess its position in this pro-
ceeding outweighs the Charging Party’s false claim of privilege
(and presumably protection of the documents under the work
product doctrine). (Tr. 899‒905.) After considering the parties’
arguments, I ruled that in waiving its privilege regarding the doc-
uments and communications described above, the waiver was
limited to this administrative trial and the parties were not al-
lowed to reveal the documents and communications and any in-
formation discovered from those materials to anyone other than
those individuals identified on the record, (Tr. 908‒910, 1058‒
1064). Additionally, I placed those documents and the testimony
regarding those documents under seal; and granted the Respond-
ent’s motion for a protective order. The General Counsel and the
Charging Party voiced their continued objections to my rulings.
Based on a careful review of the evidence, case law, the Fed-
eral Rules of Evidence, and the parties’ arguments, I have recon-
sidered and hereby rescind my rulings that: (1) allowed a limited
waiver of the Respondent’s “privilege” regarding the documents
and communications at issue; and (2) placed the documents and
Charging Party’s potential financial exposure; and contact the subcon-
tractors involved in the grievance to ascertain if the subcontractor had
performed bargaining unit work in violation of the CBA.
32 The Charging Party did not call Fatima Jurado to testify at the ad-
ministrative trial. (Tr. 873‒874.)
UNITE HERE LOCAL 1 (HYATT REGENCY CHICAGO) 13
testimony under seal while granting the motion for a protective
order.
It is well settled law that the party asserting confidentiality has
the burden of proof. Postal Service, 356 NLRB 483 (2011); De-
troit Newspaper Agency, 317 NLRB 1071 (1995); Northern In-
diana Public Service Co., 347 NLRB, 211 (2006). Even if the
Respondent meets its burden, it cannot simply refuse to furnish
the information, but rather must engage in accommodative bar-
gaining with the Union to seek a resolution that meets the needs
of both parties. In Alcan Rolled Products, 358 NLRB 37, 40
(2012), citing and quoting applicable authorities, the Board ex-
plained:
Confidential information is limited to a few general categories
that would reveal, contrary to promises or reasonable expecta-
tions, highly personal information. Detroit Newspaper
Agency, 317 NLRB 1071, 1073 (1995). Such confidential in-
formation may include “individual medical records or psycho-
logical test results; that which would reveal substantial propri-
etary information, such as trade secrets; that which could rea-
sonably be expected to lead to harassment or retaliation, such
as the identity of witnesses; and that which is traditionally priv-
ileged, such as memoranda prepared for pending lawsuits.” Id.
Additionally, the partying asserting the confidentiality defense
may not simply refuse to furnish the requested information, but
must raise its confidentiality concerns in a timely manner and
seek an accommodation from the other party. Id. at 1072.
The disclosure of the information must be balanced against
the confidentiality and privacy interests raised by the Respond-
ent. Detroit Edison Co., supra.
The record reveals that initially the Respondent moved to un-
conditionally waive its privilege regarding the documents and
communications at issue. Only later, after extended on and off
the record discussions, did the Respondent changed its position.
Second, the Respondent admits that in response to the General
Counsel’s subpoena requests, it failed to provide a privilege log
to support its claim of privilege as required. Third, by waiving
the confidentiality privilege in this forum, Board law holds that
the privilege may also be waived in other proceedings. See Wal-
Mart Stores, Inc., 348 NLRB 833, 834 (2006). Moreover, the
Respondent has failed to present persuasive case law supporting
a finding that the documents and materials are in fact privileged
or protected under the work product doctrine. Last, courts gen-
erally find waiver of privilege and work product protection when
a witness has reviewed the subject documents during the hearing
to refresh his or her recollection. See 28 Fed. Prac. & Proc. Evid.
§ 6188 (2d ed. April 2019 Update); and 5 Handbook of Fed.
Evid. § 612.2 (8th ed. Nov. 2018 Update); Federal Rules of Ev-
idence (FRE) 612. Such is the case in the matter at hand.
Accordingly, based on a careful consideration of the evidence,
the parties’ positions, and Board and case law, I am rescinding
my previous rulings in this matter.
B. Legal Standards
The Board has consistently held pursuant to Section 8(b)(3) of
the Act, a union has a duty to furnish information which parallels
that of the employer under Section 8(a)(5) and (1) of the Act.
California Nurses Assn., 326 NLRB 1362 (1998), citing Firemen
& Oilers Local 288 (Diversity Wyandotte), 302 NLRB 1008,
1009 (1991); Service Employees Local 144 (Jamaica Hospital),
297 NLRB 1001, 1003 (1990)); Teamsters Local 851 (Northern
Air), 283 NLRB 922 (1987); Local 13, Detroit Newspaper Print-
ing (Oakland Press), 233 NLRB 994, 995‒996 (1977), affd. 598
F.2d 267 (D.C. Cir. 1979) (holding that where a union refused to
disclose requested information about its referral system, it vio-
lated Sec. 8(b)(3)). Consequently, a union has a statutory obli-
gation to furnish an employer with relevant requested infor-
mation so that an employer can assess the merits of the griev-
ances to determine whether to proceed to arbitration or attempt
to resolve them. Information requests regarding bargaining unit
employees’ terms and conditions of employment are “presump-
tively relevant” and must be provided. Whitesell Corp., 352
NLRB 1196, 1197 (2008), adopted by a three-member Board,
355 NLRB 649 (2010), enfd. 638 F.3d 883 (8th Cir. 2011); Faw-
cett Printing Corp., 201 NLRB 964 (1973); Southern California
Gas Co., 344 NLRB 231, 235 (2005). If the requested infor-
mation is not directly related to the bargaining unit, the infor-
mation is not presumptively relevant, and the requesting party
has the burden of establishing the relevance of the requested ma-
terial. Disneyland Park, 350 NLRB 1256, 1257 (2007);
Earthgrains Co., 349 NLRB 389 (2007); United States Testing,
324 NLRB 854, 859 (1997), enfd. 160 F.3d 14 (D.C. Cir. 1998);
Brooklyn Union Gas Co., 220 NLRB 189 (1975).
The standard for establishing relevancy is the liberal, “discov-
ery-type standard.” Alcan Rolled Products, 358 NLRB 37, 40
(2012), citing and quoting applicable authorities; Shoppers Food
Warehouse Corp., 315 NLRB 258, 259 (1994); Bacardi Corp.,
296 NLRB 1220 (1989). In Leland Stanford Junior University,
307 NLRB 75, 80 (1992), the Board summarized its application
of the principles as:
[T]he Board has long held that Section 8(a)(5) of the Act obli-
gates an employer to furnish requested information which is
potentially relevant to the processing of grievances. An actual
grievance need not be pending nor must the requested infor-
mation clearly dispose of the grievance. It is sufficient if the
requested information is potentially relevant to a determination
as to the merits of a grievance or an evaluation as to whether a
grievance should be pursued. United Technologies Corp., 274
NLRB 504 (1985); TRW, Inc., 202 NLRB 729, 731 (1973).
The requested information does not have to be dispositive of the
issue for which it is sought, but only has to have some relation to
it. Pennsylvania Power & Light Co., 301 NLRB 1104, 1104–
1105 (1991). Moreover, the Board does not assess the merits of
the underlying dispute to determine the relevancy of the request
for information. Postal Services, 332 NLRB 635 (2000). The
Board has also held that a union, and presumably an employer,
may make a request for information in writing or orally. Further,
the Board has found that a delay is unreasonable when the infor-
mation requested is easily and readily accessible from an em-
ployer’s files. Bundy Corp., 292 NLRB 671, 672 (1989).
Once the Charging Party has demonstrated the relevancy of
the request for information, the burden shifts to the Respondent
to establish that the information is not relevant, does not exist, or
some other valid and acceptable reason could not be furnished.
Samaritan Medical Center, 319 NLRB 392, 398 (1995), citing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Somerville Mills, 308 NLRB 425 (1992), and Postal Service, 276
NLRB 1282 (1985). Based on the evidence, I find that the Re-
spondent has failed to sustain its burden.
C. The Requests Were Relevant
In its posthearing brief, the General Counsel does not address
each alleged RFI violation separately but rather argues: the
Charging Party’s requests were relevant; the Respondent failed
to furnish a valid justification for its failure and refusal to pro-
duce the requested information; and the Respondent failed to
bargain with the Charging Party over an accommodation to re-
solve the Respondent’s privilege claim. The Charging Party ar-
gues that the Respondent’s failure to produce the requested in-
formation prohibited the Charging Party from being able to
“evaluate the merits of the claims and determine whether to settle
grievances before arbitration”; and inhibits the Charging Party’s
ability to defend itself in arbitration. (CP Br. 5, 12.)
The Respondent counters that it did not violate the Act as al-
leged in the complaint because (1) the Charging Party’s RFIs
were made in bad faith; (2) the Respondent did not have the in-
formation when it responded to the RFIs and did not have a duty
to find the information; (3) the Charging Party’s RFIs were bur-
densome; (4) the Respondent had a valid claim of privilege over
certain materials and did not have a duty to provide a privilege
log; (5) a Charging Party witness (King) was not credible; (6) the
actions of the Charging Party’s agents (King and Bircanin)
shows it was able to sufficiently investigate the grievances “even
in the absence of the information it request[ed] from the Union”;
and (7) the Respondent’s “inadvertent” failure to provide some
of the information does not violate the Act. (R. Br. 19–23.)
I find that the information sought by the Charging Party for
each of the RFIs is sufficiently relevant and necessary for it to
evaluate and investigate the grievance allegations; and prepare
for the grievance-arbitration process that was initiated by the Re-
spondent. The law dictates that the Union is entitled to the in-
formation at issue to determine if it is prudent and appropriate to
file a grievance. Ohio Power Co., 216 NLRB 987 (1975); Le-
land Stanford Junior University, supra. Moreover, the Respond-
ent does not dispute the relevancy of the requests but rather ob-
jects to them on other grounds. Consequently, the burden shifts
to the Respondent to establish that the requested information
does not exists or posit other valid reasons for its delay and/or
failure to comply with the requests for information.
D. The Respondent Fails to Meet Its Burden
a. Respondent argues RFIs were issued in
bad faith and burdensome
Despite the Respondent’s contention to the contrary, I find the
record is devoid of evidence proving that the Charging Party sub-
mitted the RFIs in retaliation for the Respondent filing unfair la-
bor practice (ULP) charges. The Respondent points to an inci-
dent between King and Foran as proof of the Charging Party’s
bad faith. According to the Respondent, King threatened Foran
with, “well, you’re not going to like what comes next” because
the Union refused to withdraw an ULP. (Tr. 731‒732.) Moreo-
ver, the Respondent argues that the alleged incident should be
accepted as fact because “King was present at the hearing but did
not rebut Foran’s testimony that he issued this retaliatory threat.”
(R. Br. 19.) The Respondent insists that soon after this confron-
tation, the Charging Party began to send it lengthy requests for
information. The Respondent also argues that the Charging
Party’s switch from an informal exchange of information to a
detailed formal written request is more evidence of bad faith.
The Charging Party counters that this is a specious argument
because the Respondent “when initially responding to HRC’s in-
formation requests, does not assert that the requests are made in
bad faith or to vex and annoy the Union.” (CP Br. 44.) Rather,
according to the Charging Party, the Respondent simply claimed
that it did not respond to certain information requests because it
did not possess the information and could not otherwise obtain it
without an undue burden on its resources.
Even assuming as true that the confrontation with King and
Foran occurred as described by the Respondent, it is insufficient
proof that the Charging Party issued the RFIs in bad faith. I have
found that the RFIs were relevant and necessary. There is cred-
ible undisputed testimony that because of the substantial increase
in grievance filings, the Charging Party hired Bircanin to imple-
ment a better and more standardized system for the Hotel’s re-
sponse to and submission of RFIs. Consequently, Bircanin de-
vised the current RFI system to ensure that information on all
incoming grievances was received timely so that the Charging
Party could conduct a quick and thorough investigation of the
allegation. According to Bircanin, timely receipt of as much rel-
evant information as possible would allow the Charging Party to
assess the merits of the grievance, thus reducing its financial li-
ability by quickly resolving those that have merit and/or imple-
menting solutions to ensure that the actions which led to those
grievances with merit would not reoccur. Last, I find that the
Respondent has failed to show there is a direct cause and effect
between the incident with King and Foran and the Charging
Party’s decision to issue RFIs in the specific grievances in this
case.
The Respondent also argues that the voluminous and detailed
nature of the RFIs shows that they were issued in bad faith. Ac-
cording to the Respondent, during the early stages of the griev-
ance process, the grievant may possess information known only
to him or her and not initially shared with the Union. Conse-
quently, the Respondent insists that at the time it receives the
RFI, it often does not have possession of the information. The
Respondent claims that in order to comply with the detailed na-
ture of the RFIs, the Respondent would have to revamp its intake
grievance process and conduct more extensive interviews when
the grievance is first filed. The Respondent argues that, “if the
Union were to engage in additional investigations of every griev-
ance when each grievance was at its earliest stage … the Union’s
limited resources would be overwhelmed.” (R. Br. 26.) In order
to use its limited resources effectively, the Respondent insists it
waits until the grievance meeting to conduct additional grievant
interviews because to do otherwise would require a lot more ef-
fort to contact the grievant. I find the Respondent’s arguments
unpersuasive. While the Charging Party’s RFI is detailed, there
is only the Respondent’s subjective opinion that the RFIs are also
voluminous. Even assuming that the RFIs are voluminous and
would require the Respondent to expend additional resources to
gather the information, it does not establish that the RFIs are
overly burdensome or issued in bad faith. I have already found
UNITE HERE LOCAL 1 (HYATT REGENCY CHICAGO) 15
that the RFIs are relevant and necessary. Moreover, the party
asserting that responding to relevant RFIs is unduly burdensome
or oppressive must show that compliance with the request would
seriously disrupt its normal business operations. Safeway Stores
v. NLRB, 691 F.2d 953, 957 (10th Cir. 1982) (holding company’s
time and cost burden does not prevail over union requesting in-
formation); Oil, Chemical & Atomic Workers Local Union No.
6-418 v. NLRB, 711 F.2d 348, 363‒364 (1983) (holding that,
“…[T]he cost and burden of compliance ordinarily will not jus-
tify an initial, categorical refusal to supply relevant data.”);
NLRB v. George Koch Sons, Inc., 950 F.2d 1324, 1339‒1340
(7th Cir. 1991) (holding that even a substantial time and money
burden does not excuse duty to disclose); West Penn Power Co.
v. NLRB, 394 F.3d 233, 245‒246 (4th Cir. 2005) (reasonable ef-
forts to obtain outside information is not an undue burden). The
Respondent has failed to sustain its burden.
Likewise, the Respondent insists two grievances filed against
the Charging Party for taking disciplinary action against Navarro
and Kizer is further evidence that the RFIs were issued in bad
faith. (Tr. 483–484; R. Br. 21.) As the issuer of the disciplines,
the Respondent argues, in this instance, the Charging Party had
most of the answers it was seeking from the Respondent. I find,
however, that the Respondent’s argument is flawed. The Charg-
ing Party admits that it had a fair amount of information about
the grievance alleging Kizer was unjustly disciplined. However,
the Charging Party explained that clarification of the grievant’s
basis for the claim would enable it to ascertain whether to settle
it and, if warranted, implement a process to ensure this type of
action did not reoccur. Despite the Respondent’s contention to
the contrary, I find the Charging Party did not have the answer
to one of the most crucial questions, why Kizer believed her dis-
cipline was unjust. Moreover, the record is clear that when it
received the RFI, the Respondent had possession of the
grievant’s intake form which included the requested information.
Although Bircanin admitted that she was “somewhat” aware of
the facts surrounding Navarro’s discipline, the evidence does not
show that the RFI was unnecessary or unreasonable. Even after
conducting an internal investigation, Bircanin still needed more
information from the Respondent because her investigation un-
covered inconsistencies with the initial grievance allegation,
which she was unable to reconcile because the grievant did not
list the names of the alleged violators. The Board has consist-
ently held that certain information, such as the basic facts of a
grievance filing, is presumptively relevant and therefore, neces-
sary for the requesting parties’ ability to carry out its representa-
tional duties as either an employer or union. United Parcel Ser-
vice of America, 362 NLRB 160, 161‒162 (2015) (information
on an employee’s terms and conditions of employment is pre-
sumptively relevant); Disneyland Park., supra (employer viola-
tion of 8(a)(1) and (5) because requested information unneces-
sary to carry out representational obligations); Southern Califor-
nia Gas Co., supra (holding that the company violated 8(a)(1)
and (5) by not providing information relevant to CBA).
33 I find that, while testifying, several times King appeared to tailor
his answers to what he thought counsel for the Charging Party wanted
him to say rather than the truth. Moreover, several of his answers on
The Respondent also claims that King’s testimony detailing
the reasons he needed the RFIs are false and further evidence of
bad faith on the part of the Charging Party. Moreover, the Re-
spondent contends that King’s testimony at the hearing should
be rejected because his demeanor was untruthful, and the re-
sponses were evasive. In support of its argument, the Respond-
ent points to the language contained in the RFIs which states,
“These timely and complete disclosures are not only required by
law, but are needed by the Hotel in order to adequately investi-
gate the basis of the Grievant’s claims and preserve relevant ev-
idence.” (R. Br. 22; GC Exh. 3(c).) According to the Respond-
ent, this reason is pretextual because until 2015 the Charging
Party was able to investigate grievance claims without submit-
ting RFIs. Further, the Respondent contends that the grievance
gives King enough information for him (or presumably other
management officials) to “quickly” determine for himself the an-
swer to the RFI. Last the Respondent notes that Bircanin gave
“lengthy” testimony about her ability to investigate the grievance
allegations “even in the absence of the information [the Charging
Party] request[ed] from the Union.” (R. Br. 23.) I find that the
Respondent’s arguments are not persuasive.
While I find that King was only a partially credible witness,
his lackluster performance as a witness does not negate the other
elements of the General Counsel’s case which disprove the alle-
gation that the RFIs were issued in bad faith.33 Jerry Ryce Build-
ers, Inc., 352 NLRB 1262, 1262 fn. 2 (2008), citing NLRB v.
Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd.
on other grounds 340 U.S. 474 (1951); Golden Hours Convales-
cent Hospitals, 182 NLRB 796, 798‒799 (1970). Again, it must
be stressed that I have found the RFIs requested relevant and
necessary information. Despite the Respondent’s contention that
until 2015 the Charging Party was able to investigate grievances
without submitting RFIs there is no evidence in the record to
support that assertion. Even assuming until 2015 the Charging
Party was able to investigate with only the information provided
in the grievance, the evidence is undisputed that the circum-
stances later changed with the dramatic increase in grievance fil-
ings by the Respondent. I found that the evidence established
that it was this increase which necessitated that the Charging
Party institute a more formalized procedure for handling the in-
coming grievance filings. Moreover, Bircanin provided credible
and consistent testimony about the need to implement a new sys-
tem for processing the dramatic increase in grievance filings, the
steps she took to investigate the validity of the grievances with-
out responses to the RFIs, and the relevancy of the RFIs. I credit
Bircanin’s testimony because (1) she provided credible corrobo-
rating testimony; (2) even the Respondent admits that the Charg-
ing Party’s ability to investigate the claims without the responses
to the RFIs does not negate the Respondent’s obligation to pro-
vide the requested information; and (3) Bircanin’s overall de-
meanor while testifying appeared truthful and she provided tes-
timony that was logical and consistent with the corroborating
documents of record. Consequently, even if I were to discount
King’s testimony, Bircanin credibly testified to the same points
cross-examination were evasive and non-responsive. (See e.g., Tr. 494‒
495, 509‒510, 513‒514)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
as King regarding: the need for the RFIs; the degree to which the
Union’s delay or refusal to respond to the RFIs restricted her
ability to conduct thorough and meaningful investigations of
grievances; and the impact the Union’s actions had on the Charg-
ing Party’s ability to respond to and/or resolve the grievances.
Consequently, I do not find the Respondent’s arguments persua-
sive on this point that the Respondent’s articulated defense that
it was not obligated to respond to the RFIs because they were
issued in bad faith is not supported by the evidence.
b. Respondent argues lack of answers, no obligation to con-
duct burdensome investigations, and no duty to conform RFI to
a specific form relieves it of liability
The Respondent also argues that it did not violate the Act
when it failed to respond to the Charging Party’s RFIs because
(1) it did not have the answers when it responded to the requests;
(2) the Respondent did not have an obligation to conduct addi-
tional interviews with grievants who may have withheld some
information during the initial grievance intake interview; (3) get-
ting information from grievants after the grievance is filed but
before a grievance meeting is held would be an undue burden on
the Respondent; (4) responding to the RFIs would require the
Respondent to make changes in how it conducts grievance inves-
tigations and takes “significantly more staff time than [its] cur-
rent process”; and (5) the Charging Party cannot determine how
the Respondent provides the requested information. I find, how-
ever, that the Respondent has not satisfied its burden of showing
that it did not have to respond to the RFIs because it did not have
the answers and the RFIs were burdensome. Furthermore, the
Respondent has not established that the burden of complying
with the RFI outweighs the Charging Party’s need for the infor-
mation.
Although the Respondent argues that it did not have a duty to
gather information not in its possession when it received the
RFIs, the law does dictate that it must either supply the infor-
mation in a timely manner or adequately explain why the infor-
mation will not be provided. Regency Service Carts, Inc., 345
NLRB 671 (2005); Beverly California Corp., 326 NLRB 153
(1998). I have found that the Respondent did not, once received,
furnish the information in a timely manner nor adequately ex-
plain why the information could not be provided. As discussed
in more detail below for each RFI, there were several instances
where the Respondent possessed some or all of the information
prior to receiving the RFI. The Respondent argues that King and
Bircanin had enough information to understand the basis of the
grievance and could have conducted an independent investiga-
tion to get additional information. Respondent cites no Board or
case law to support its argument that based on the limited infor-
mation contained in the grievance, the Charging Party should
have been able to guess at the answers to its RFI and gather the
information it sought. In Holyoke Water Power Co., 273 NLRB
1369 (1985), the Board held, “. . . the availability of information
from another source does not alter a party’s duty to provide rel-
evant and necessary information that is readily available.”
NACCO Material Handling Group, 359 NLRB 1192 (2013) (the
Board upheld the administrative law judge’s finding that requir-
ing the union to obtain information from another party does not
relieve the employer from its obligation to provide to the union
the relevant and necessary information). Based on the Respond-
ent’s argument, the burden should shift to the Charging Party to
obtain presumptively relevant information to its own RFI. The
argument is not supported by Board law. It is well settled Board
law that the fact that the requesting party is able to obtain infor-
mation through other sources does not negate the requesting
party’s right to get the information from the other party. See,
e.g., Illinois-American Water Co., 296 NLRB 715 (1989), enfd.
933 F.2d 1368 (7th Cir. 1991); Interstate Food Processing, 283
NLRB 303, 305 (1987). Moreover, the facts unequivocally es-
tablish that the Respondent had a sizable portion the information
readily available in the alleged “privileged” grievance intake
forms. Moreover, the facts clearly show that the Respondent did
not make a valid attempt at an accommodation. Beverly Califor-
nia Corp., 326 NLRB 153, 157 (1998); Bryant & Stratton Insti-
tute, 321 NLRB 1007, 1044 (1996), enfd. 140 F.3d 169 (1998)
(Board law to support its contention).
The Respondent insists that requiring it to conduct additional
interviews with grievants prior to the grievance meetings would
be an undue burden on the Respondent; and the Charging Party
should not be able to dictate how the Respondent provides the
requested information. According to the Respondent, this would
result in an unreasonable strain on its resources because the Re-
spondent would have to arrange for additional grievant inter-
views; and “most” grievants are difficult to contact by telephone
or through shop stewards. I reject the Respondent’s arguments
because they are not supported by the evidence or law.
The Board has held, “(where) an employer declines to supply
relevant information on the grounds that doing so would be un-
duly burdensome, the employer must not only reasonably raise
this objection with the union but substantiate its defense.” AK
Steel Corp., 324 NLRB 173, 184 (1997), quoting A-Plus Roof-
ing, Inc., 295 NLRB 967, 972 (1989), quoting J. I. Case Co. v.
NLRB, 253 F.2d 149, 154 (7th Cir. 1958). Even assuming the
Respondent can show that compliance would be unduly burden-
some, it must “offer to bargain about sharing theses costs.” AK
Steel Corp., 324 NLRB at 184. In its answer to the complaint,
the Respondent raised as an affirmative defense “the Charging
Party has endeavored to require Respondent to provide infor-
mation in written rather than oral form, which is significantly
more burdensome to Respondent.” (GC Exhs. 1(i), 1(l).) The
Respondent contends that the Charging Party could have re-
ceived the requested information by questioning grievants in
grievance meetings. According to the Respondent, the Charging
Party refused to participate in or delayed grievance meetings. I
do not find the Respondent’s argument persuasive. The evidence
is insufficient to establish that responding to the RFIs would be
an undue burden on the Respondent. The only evidence the Re-
spondent presented to support its undue burden argument were
assertions about lacking the staff to contact grievants for and
conduct additional interviews after the initial grievances are
filed. The Respondent argues that contacting and interviewing
grievants separate from the grievance meetings “could take well
more than an hour”, it would have to reassign staffs’ responsibil-
ities, and “neglect its other representational duties.” (R. Br. 27.)
However, there is no objective evidence to support these asser-
tions. There is also no evidence that the Charging Party is insist-
ing that the Respondent gather the requested information via
UNITE HERE LOCAL 1 (HYATT REGENCY CHICAGO) 17
follow-up interviews with the grievants. The Charging Party has
not demanded that the Respondent produce the information in a
specific form34 or gather the information in a particular manner.
Moreover, the Respondent has other option for obtaining the in-
formation e.g., assign a staff person to conduct intake interview
with grievants, warn grievants that failure to provide a complete
narrative of the complaint and supporting documents may result
in the delay or dismissal of their grievance, obtain contact infor-
mation for grievants at the time the grievance is filed. If the Re-
spondent had engaged in the accommodative process as required
by law, the parties may have discovered a solution allowing the
Respondent to provide the requested information in a manner
that was amenable to it.
Based on the evidence, I find the Respondent’s affirmative de-
fenses unpersuasive.
c. Respondent illegally failed and refused to respond to the
RFIs
It must first be noted the evidence is undisputed that the Re-
spondent never produced a privilege log for any of the requests
made in this complaint. Again, I must emphasize that the infor-
mation sought by the Charging Party in each of the RFIs is nec-
essary for and relevant to the Charging Party’s ability to assess
the merits of the grievance and its likelihood of succeeding at
arbitration, prepare for arbitration, and determine its potential fi-
nancial exposure. Local 13, Graphic Communications Union,
598 F.2d at 273 (employer entitled to the requested information
to determine whether to “stand firm on its proposal … modify
them . . . or abandon them.”).
Regarding the October 9, 2017,35 RFI both initial and follow-
up, were reasonable and necessary to the Charging Party’s ability
to carry out its responsibilities in the grievance process. The
plain reading of the initial grievance shows that it is vague re-
garding the specific dates, action, and people involved in the al-
leged violation. The Respondent does not deny that it failed to
completely comply with the Charging Party’s initial RFI. In-
stead, the Respondent answered with specific dates (September
21 and 28, 2017) but nothing more. Even after the Charging
Party renewed its RFI, the Respondent refused to turn over the
information and instead told the Charging Party that it would
possibly receive additional information as the Respondent inves-
tigated the complaint at each stage of the grievance procedure,
including arbitration. There is no case law which states the Re-
spondent can produce requested information at its leisure. NLRB
v. Ingredion, 930 F.3d 509, 518 (D.C. Cir. 2019) (holding that
company violated 8(a)(1) and (5) by causing unreasonable delay
during grievance procedure); IronTiger Logistics v. NLRB, 823
F.3d 696, 699‒700 (D.C. Cir. 2016) (affirming Board’s holding
that company must respond to requests for additional infor-
mation in a timely fashion).
Likewise, the Respondent did not fully comply with the RFIs
dated October 12, 13, and 17, 2017.36 In response to the October
34 The Charging Party does ask that the Respondent’s answers to the
RFI be submitted in writing. However, the record is devoid of evidence
establishing why producing the information in written format would be
unduly burdensome.
35 The RFI was issued in response to grievance number 20172063.
12, 2017, RFI the Respondent answered that the grievant claimed
on October 3, 2017, his workload increased; and later added that
it would provide more information as it was gathered in the
course of its continuing investigation. The only information
given to the Charging Party was the grievant’s name and a three-
word description of the allegation. However, the Respondent
had the grievance intake form which described the allegation in
more detail and listed witnesses’ names. (U. Exhs. 4, 5.) The
Respondent also failed, without a valid defense, to fully answer
the October 13 and 17, 2017 RFIs. Its response to the Charging
Party was the addition of the word “violent.” The Respondent
failed to provide readily available basic information noting the
managers’ and grievant’s names which were listed on the griev-
ance intake form. (U. Exh. 6.)
Prior to receiving the December 18, 2017,37 RFI, the Respond-
ent had some of the information, but refused to give it to the
Charging Party, arguing the material was protected under a labor
relations privilege. However, the Respondent had readily avail-
able a named witness, and a description of the specific job clas-
sification at issue which were not privileged. Neither were given
to the Charging Party until almost a year later. (U. Exh. 7; Tr.
992‒994.)
In response to the RFI dated December 22, 2017,38 the Re-
spondent elaborated noting that “on December 4th management
asked over 20 housekeepers to do overtime….” (GC Exh. 7(c).)
However, the Respondent has not provided additional infor-
mation, including the name of the grievant, even though the
grievance has been pending for almost 2 years. The Respondent
did not posit reasons, other than its previously articulated affirm-
ative defenses, for its failure to comply with the RFI. As dis-
cussed previously in this decision, I found each of those defenses
unpersuasive.
Likewise, the Respondent had a plethora of information when
it received the RFI dated January 31, 2018, for grievance number
20180153. Nevertheless, the Respondent refused to give the
Charging Party the requested information arguing that the griev-
ance intake form was protected by a labor relations privilege and
protected under the work product doctrine. Even assuming the
Respondent’s argument is supported by case law, the infor-
mation contained on the grievance intake form is not privileged
nor otherwise protected. Consequently, the Respondent had
readily available to it a lot of the information requested by the
Charging Party (e.g., bases for the grievance, witness names,
time of events, shifts at issue, etc.) which could have been com-
municated to the Charging Party without giving it access to the
form. (U. Exh. 9.)
In response to the Respondent’s complaint that its RFI dated
March 12, 2018, was unreasonable and unduly burdensome, on
March 27, 2018, the Charging Party revised its RFI.39 (GC Exh.
9(c) at 9.) I find that the record shows the Respondent partially
responded to the RFI, albeit about a year after it was requested.
36 The RFIs were issued in response to grievance numbers 20172102,
20172103, and 20172111, respectively.
37 The RFI was issued in response to grievance number 20172598.
38 The RFI was issue in response to grievance number 20172701.
39 The RFI was submitted to the Respondent in response to grievance
number 20162235. (GC Exhs. 9(a)‒(c) attachment.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
(GC Exh. 9(c) at 6‒7.) However, the Respondent’s argument
that because it provided photographs the Charging Party should
be able to correctly guess the identities of the employees the Un-
ion is referring to even though they are listed by first names only
does not meet its legal obligation to answer the RFI. In several
instances the Respondent also failed to confirm the names of
manager involved in the disputes, locations of the alleged viola-
tions, and the type of bargaining unit work allegedly performed
in violation of the CBA.
The Respondent admits and I find that it never responded to
the RFI dated March 13, 2018. The Respondent knew that griev-
ance number 20171930 was never filed with the Charging Party
and administratively closed by the Union. (GC Exh. 10(a)‒(c);
Tr. 858‒861.) Despite the Charging Party’s repeated requests
for a copy of the grievance, the Respondent never explained it
had administratively closed it without filing it with the Charging
Party. The Respondent contends it met its obligation to respond
to the RFI when it gave the Charging Party a list of open griev-
ances which did not include grievance number 20171930. I re-
ject this argument. The Charging Party was not required to
guess, assume, or surmise that the absence of grievance number
20171930 on the list of open grievances meant it had been ad-
ministratively closed. It is just as likely that the grievance’s ab-
sence from this list could have been an error. Confirmation from
the Respondent regarding the grievance’s status would have
eliminated alternate scenarios.
On several occasions the Charging Party attempted to conduct
investigations after being served grievances. There were also in-
stances when the Charging Party had independent knowledge
about the events surrounding some of the grievances. In re-
sponse to RFIs dated March 20 and 29, 2018,40 the Charging
Party either initiated an investigation prior to receiving a re-
sponse to the RFI or was aware of many facts about the incident
because its managers were responsible for issuing discipline
against an employee. Nevertheless, there were facts the Charg-
ing Party was unable to uncover without the information it re-
quested from the Respondent. Despite its assertion that it had
given to the Charging Party all facts known to the Respondent,
the Respondent withheld the grievance intake form, notes, and a
privilege log arguing that the information was covered by a labor
relations privilege and/or the documents contained protected
work product. In response to the March 20, 2018 RFI, the Re-
spondent did not provide the name of the witness on the intake
form or a picture of the text message from a supervisor about the
incident. (U. Exh. 12; Tr. 157‒158, 1003, 1005.) Moreover, re-
garding the RFI submitted on April 10, 2018,41 it is undisputed
that the Respondent’s answer to the RFI was incomplete; but the
Respondent insists all the information it possessed when it re-
ceived the request was given to the Charging Party. In each in-
stance, however, the evidence establishes that the Respondent
failed to communicate to the Charging Party the detailed narra-
tive from the grievants explaining the underlying facts. Those
forms contained, among other facts, witnesses’ names and
40 The RFIs were submitted to the Respondent in response to griev-
ance numbers 20180538 and 20180662, respectively. (GC Exhs. 11(a)‒
(b); 12(a)‒(b).)
reasons why the grievant believed the CBA was violated. The
Respondent had the grievants’ narrative prior to being served the
RFIs. The Respondent does not provide a persuasive argument
or point to Board precedent to support a finding that the facts
included or attached to the intake forms are privileged or pro-
tected under the work product doctrine. See Upjohn Co., 449
U.S. 383, 395 (1981) (party cannot conceal underlying facts con-
tained in privileged communications); City of Philadelphia v.
Westinghouse Electric Corp., 205 F.Supp. 830, 831 (1962) (“the
[attorney-client] privilege extends only to communications and
not to facts”). Finally, there is no evidence that Respondent
made any attempts at engaging the Charging Party in accommo-
dative bargaining to provide it with the underlying facts without
giving it the intake forms.
Regarding the RFI dated April 9, 2018, that the Charging
Party issued in response to grievance number 20171159, the Re-
spondent again insists that when the Charging Party made its re-
quest for information the Respondent provided all the infor-
mation it possessed at the time. The Charging Party asserts,
however, that the evidence shows that the information the Re-
spondent gave it on April 12, 2018, had been available to the
Respondent since about October 7, 2017, and February 28, 2018.
The Respondent failed to provide persuasive evidence to the con-
trary.
On April 16, 2018, the Charging Party sent a RFI in response
to grievance number 20180751 requesting facts and supporting
documents from the Respondent on the grievant’s reasons for al-
leging “unjust discipline.” The RFI also sought notes taken by
the grievant, steward, and union representative and whether the
Union complied with step one of the grievance process. (GC
Exh. 15(b).) The Respondent admits that it closed the grievance
because it determined that the grievance was untimely. Accord-
ing to the Respondent, it notifies an employer that a grievance is
closed either by sending the employer a list of open grievances
or when a grievance settles. The Respondent argues that there
“were misunderstandings on both sides about [the grievances’]
status and about how their status was to be communicated, but
there was no prejudice to Hyatt in the Union’s silence because
the grievances were not being pursued.” (R. Br. 15.) The Un-
ion’s silence, however, is not a legally sufficient justification for
failing to respond to the Charging Party’s necessary and relevant
RFI. General Motors Corp. v. NLRB, 700 F.2d 1083, 1088 (6th
Cir. 1983) (holding that an employer violates 8(a)(5) when it
withholds information relevant to union processing grievances).
The RFIs dated April 23 and 30, 2018,42 were in response to
grievances alleging improper scheduling of employees and im-
proper distribution of gratuities to the detriment of “American
Craft Hostesses.” The Union also alleged that the Charging
Party “improperly sent [Fatima Ibrahim] home and lodged an-
other charge of improper scheduling of employees. (GC Exhs.
17(b), 18(b).)
The April 23, 2018 RFI asked for, among other items, an ex-
planation of the bases for the allegations that gratuities were
41 The RFI was submitted to the Respondent in response to grievance
number 20180692. (GC Exhs. 14(a)‒(b).)
42 The RFIs dated April 23 and 30, 2018, were submitted in response
to grievance numbers 20180794 and 20180822.
UNITE HERE LOCAL 1 (HYATT REGENCY CHICAGO) 19
improperly distributed, to identify the nature of the grievance,
specific date of the alleged violation, notes, and all documenta-
tion relied on in its decision to file the grievance. (GC Exhs.
17(b), 18(b).) On April 30, 2018, the Charging Party renewed
its request, and asked for specific information about the details
of Ibrahim’s termination. The Respondent’s argument for each
grievance is essentially the same: it gave the Charging Party all
the information it had when it received the RFIs; and refused to
produce its grievance intake forms and other notes made by its
staff and shop stewards arguing that they are privileged or pro-
tected under the work product doctrine. I dismiss the Respond-
ent’s arguments. At minimum, the grievance intake form num-
ber 20180794 contained more information than the Respondent
shared with the Charging Party. The Respondent did not disclose
all the information it had when it received the RFI. For example,
the intake form listed the names of the employees who filed the
grievance on behalf of the hostesses, and that there was a “buy
out for Thursday + Friday….” (U. Exh. 19.) Regarding RFIs in
response to grievance number 20180822, the evidence is clear
that prior to receiving the RFI the Respondent possessed relevant
information which it failed to produce. The intake form reveals:
the initial of the supervisor that allegedly “yelled” at Ibrahim;
and a detailed narrative of the events which includes names and
other facts not in the grievance submitted to the Charging Party.
(U. Exh. 20.) If the Charging Party had received, at minimum,
the grievance intake form it would have had a better understand-
ing of the basis of the grievance thereby allowing management
to: conduct a more fact specific investigation in order to corrob-
orate or dispute the claim; assess whether settlement was appro-
priate; and assess its likelihood of success in arbitration. Second,
I have found that the Respondent waived whatever labor rela-
tions privileged it might have held regarding the grievance intake
form. Moreover, the Respondent failed to identify, and I cannot
discern any protected work product on the form. Even assuming
a privilege, as previously noted, the underlying facts are not priv-
ileged and must be produced.
The RFIs dated April 26 and May 10, 2018,43 were in response
to grievances alleging improper scheduling of banquet servers.
The Charging Party argues that it submitted the RFIs because it
could not “understand the claims set forth in the grievance ….”
(CP Br. 36.) Bircanin testified that the grievance allegations
were too vague for her to understand and conduct a meaningful
investigation. Significantly, the Respondent’s counsel also
agreed with Bircanin that the grievance description of the alle-
gation was vague. (Tr. 256.) Consequently, it is more likely than
not that the Charging Party would need the requested infor-
mation to: understand with specificity the nature of the griev-
ance; investigate the allegation; prepare for arbitration; assess
the strengths and weaknesses of its position; and determine
whether to settle the grievance or proceed to arbitration. None
of the Respondent’s arguments (privilege, work product, or all
information possessed at the time) can overcome these
43 The RFIs dated April 26 and May 10, 2018, were submitted in
response to grievance number 20180867.
44 The RFI dated June 8, 2018, was submitted in response to grievance
number 20181183.
considerations. Earthgrains Baking Companies, Inc., 327
NLRB 605 (1999); Jacksonville Area Assn., 316 NLRB 338, 340
(1995).
Regarding the RFI dated June 8, 2018,44 the Respondent posits
the same objections it has made for the other RFIs in NLRB com-
plaint. The Charging Party submitted the RFI in response to a
grievance filing that “scheduling on or about 5/18/2018 and on-
going and continuing” violated the CBA. Bircanin testified that
for her “scheduling” had several meanings (e.g., overtime as-
signments, start time disputes, denial of days off). Consequently,
she submitted the RFI because she felt the allegation of improper
scheduling was vague. On June 19, 2018, the Respondent an-
swered, “Grievant claims that on or about 05/17/18 the grievant
was improperly being scheduled.” (GC Exh. 19(c).) Clearly the
Respondent did not fully comply with the RFI despite having
much of the information when it received the RFI. The Respond-
ent knew or should have known, among other facts, the exact
nature of the scheduling conflict, names of the supervisors in-
volved, names of potential witnesses, and the date the issue was
discussed with a supervisor. Moreover, the Respondent, within
a reasonable amount of time, should have had the narrative on
the grievance intake form translated from Chinese to English and
shared with the Charging Party. Based on the reasons stated ear-
lier in this decision, I find that the Respondent’s objections are
likewise not persuasive on this point.
Regarding the RFI filed on June 28, 2018,45 the evidence es-
tablishes that the grievance submitted to the Charging Party
failed to include basic information such as the type of discipline
allegedly issued, who issued the discipline, any discussions be-
tween management and the employee about the discipline,
names of the managers alleged to have taken pictures of the
grievant, names of the management officials who have allegedly
placed him under increased scrutiny, and any witnesses to the
discipline or discussions between management and the em-
ployee. This information was relevant and necessary for the
Charging Party’s ability to “evaluate the merits of the claims and
determine whether to settle grievances before arbitration” and
prepare to defend itself in arbitration. I find that the Respondent
failed to establish a valid reason for its refusal to produce the
information.
On June 20, 2018,46 the Charging Party sent a RFI in response
to a grievance which alleged “[s]ub-[c]ontracting on or about
5/30/2018 and ongoing and continuing” in violation of the CBA.
(GC Exh. 21(a).) The Charging Party asked for all documenta-
tion that the Respondent relied on in its decision to file the griev-
ance, including the grievant(s)’, shop steward’s, and union rep-
resentative’s notes, names, dates, times, locations, photos, vid-
eos, and any other documentation related to the grievance. The
Respondent answered, “Grievant claims that on 05/30/18 an out-
side company was seen moving C.S. equipment. The issue was
discussed with management on 06/01/18.” (GC Exh. 21(b).) On
June 29, 2018, the Charging Party sent a follow-up request ask-
ing for, in addition to the initial RFI, duration of the alleged
45 The RFI dated June 28, 2018, was submitted in response to griev-
ance number 20181187.
46 The RFI dated June 29, 2018, was submitted in response to griev-
ance number 20181209.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
violation, name of the employee harmed by the alleged violation,
name of the subcontractor, work the subcontractor’s employees
performed, and dates the work was allegedly performed. Alt-
hough the Respondent argues that it gave the Charging Party all
but privileged information, the evidence reveals otherwise. The
Respondent did not give the Charging Party the name of the wit-
ness listed on the grievance intake form. Also, the Respondent
failed to name the contractor, clarify the date(s) of the incident,
and clarify the number of grievants and managers involved in the
action. The Respondent does not proffer arguments specific to
the June 28 and 29, 2018, RFIs but rather relies on its previously
articulated affirmative defenses. Since I have found the infor-
mation relevant and discredited the Respondent affirmative de-
fenses, I find that the Respondent failed to completely respond
to the RFIs and does not have a legally justifiable reason for its
actions.
Accordingly, I find that the Respondent’s failed and refused
to provide the Charging Party with the necessary and relevant
information requested by it as described in paragraphs VI(a)–(s)
of the complaint in violation of Section 8(b)(3) of the Act.
CONCLUSIONS OF LAW
1. The Respondent UNITE HERE Local 1 is a labor organi-
zation within the meaning of Section 2(5) of the Act and repre-
sents over 16,000 employees in the Chicago metropolitan area,
downstate New York, and Indiana.
2. The Respondent is, and, at all material times, has been the
exclusive bargaining representative for the following appropriate
unit:
All full and regular part-time culinary employees, food and
beverage employees, bartenders, housekeeping employees,
uniform services employees, and banquet employees em-
ployed by Charging Party at its facility located at 151 East
Wacker Drive, Chicago, Illinois, but excluding clerical em-
ployees, guards, professional employees, and supervisors as
defined in the National Labor Relations Act.
3. Hyatt Regency Chicago (Charging Party) is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, operating a hotel in Chicago, Illinois.
4. By its failure and refusal to provide the necessary and rel-
evant information requested by the Charging Party on or about
October 9, 12, 13 and 17, 2017, on or about December 18 and
22, 2017, on or about January 31, 2018, on or about March 12,
13, 20, and 29, 2018, on or about April 9, 10, 16, 23, 26, and 30,
2018, on or about May 10, 2018, and on or about June 8, 28, and
29, 2018, the Respondent has engaged in unfair labor practices
in violation of Section 8(b)(3) of the Act.
5. By its failure and refusal in providing the necessary and rel-
evant information requested by the Charging Party on or about
the dates listed above in paragraph 3, the Respondent has en-
gaged in unfair labor practices in violation of Section 8(b)(3) of
the Act.
6. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
47 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
7. The Respondent has not violated the Act except as set forth
above.
REMEDY
The General Counsel requests that I order as appropriate rem-
edies for the Respondent’s failure and refusal to provide the
Charging Party with the requested information in violation of
Section 8(b)(3) of the Act: an extraordinary remedy requiring
training for Respondent’s officials; a Notice posting; and “any
other remedy deemed appropriate and just under the law.”
I find that traditional remedies are inappropriate in this matter;
and I agree with the General Counsel’s argument that it is appro-
priate to order an extraordinary remedy requiring mandatory in-
person training sessions for all current organizers and represent-
atives of UNITE HERE Local 1 who are responsible for respond-
ing to or advising on information requests made by the Charging
Party.
The Respondent will be ordered to cease and desist from fail-
ing and refusing to bargain collectively with the Charging Party
by refusing to provide the requested information. Moreover, the
Respondent will be ordered to furnish the Charging Party with
the information requested as specified in paragraphs VI(a)–(s) of
the consolidated complaint.
The Respondent will also be ordered to post and communicate
by electronic post to employees the attached Appendix and no-
tice.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended47
ORDER
The Respondent UNITE HERE Local 1, in Chicago, Illinois,
and its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Hyatt Regency Chi-
cago (Charging Party) by failing and refusing to provide the
Charging Party with information requested that is necessary and
relevant for its ability to prepare for and/or defend itself against
the underlying grievances.
2. Take the following affirmative action necessary to effectu-
ate the purposes and policies of the Act.
(a) Within 14 days from the date of the Board’s Order, furnish
the Charging Party with the information, as specified in the sec-
ond consolidated complaint, it has requested since on or about
October 9, 12, 13 and 17, 2017, on or about December 18 and
22, 2017, on or about January 31, 2018, on or about March 12,
13, 20, and 29, 2018, on or about April 9, 10, 16, 23, 26, and 30,
2018, on or about May 10, 2018, and on or about June 8, 28, and
29, 2018.
(b) Within forty-five (45) days, the Respondent will conduct
two mandatory in-person training sessions for all current organ-
izers and representatives of UNITE HERE Local 1, who are re-
sponsible for responding to information requests made by Hyatt
Regency Chicago, regarding the requirement to timely provide
necessary and relevant information to the Hyatt Regency Chi-
cago upon its request. Such training shall include providing to
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
UNITE HERE LOCAL 1 (HYATT REGENCY CHICAGO) 21
each attendee a copy of this settlement agreement and the at-
tached notice to employees, and written instructions stating that:
• UNITE HERE Local 1 and its organizers and representatives
are required, pursuant to a settlement agreement with Region
13 of the National Labor Relations Board, to comply with the
appended Notice to Employees;
• Incomplete or inadequate responses, unprivileged or unwar-
ranted refusals, and unreasonable delays in supplying infor-
mation required to be provided to Hyatt Regency Chicago shall
not be tolerated by the UNITE HERE Local 1;
• If the Union claims any information responsive to a request
for information from Hyatt Regency Chicago is privileged or
confidential, it must notify Hyatt Regency Chicago of the basis
of its position and seek to bargain an accommodation to pro-
vide the information in a manner that protects its confidentiality
interests;
• If the Union claims any other lawful basis for withholding
information responsive to a request for information from Hyatt
Regency Chicago, it must notify Hyatt Regency Chicago and
state the basis for its position;
• If, after a diligent search, the Union finds that requested infor-
mation does not exist, or is not capable of being produced, the
Union must respond to the request by saying so within a rea-
sonable time.
Each person receiving training pursuant to this settlement
agreement shall acknowledge in writing that he or she has at-
tended the training and has been furnished with a copy of this
settlement agreement, the notice to employees, and written in-
structions, understands them and will conduct himself or herself
consistently therewith, and will not in any way commit, engage
in, induce, encourage, permit, or condone, by action or inaction,
any violation of this settlement agreement.
The Charged Party will notify Region 13 in writing within ten
(10) days of conducting each training session and provide a list
of attendees and the instructor at each session.
(c) Within 14 days after service by the Region, post at its fa-
cilities within the Chicago metropolitan area copies of the at-
tached notice marked “Appendix.”48 Copies of the notice, on
forms provided by the Regional Director for Region 13, after be-
ing signed by the Respondent’s authorized representative, shall
be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees and members are customarily posted. In addition to
physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respondent cus-
tomarily 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.
In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since October 9, 2017.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated: Washington, D.C. September 26, 2019
48 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.”