CP Anchorage Hotel 2, LLC, d/b/a Hilton Anchorage

National Labor Relations Board - Administrative Judge Opinions

Mar 4, 2020

19-CA-193656 (N.L.R.B. Mar. 4, 2020)

JD-07-20
Anchorage, AK
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CP ANCHORAGE HOTEL 2, LLC,
D/B/A HILTON ANCHORAGE
Cases 19-CA-193656; 19-CA-193659;
19-CA-203675; 19-CA-212923;
and 19-CA-212950; 19-CA-218647;
19-CA-228578
UNITE HERE! LOCAL 878, AFL-CIO
Helena Fiorianti, Esq.,
for the General Counsel.
Douglas S. Parker and Renea I. Saade, Esqs.
for the Respondent.
Dmitri Iglitzin, Esq.,
for the Charging Party.
DECISION
INTRODUCTION1
ANDREW S. GOLLIN, ADMINISTRATIVE LAW JUDGE. These seven consolidated cases were tried on
October 28-30, 2019, in Anchorage, Alaska, and on November 12, 2019, in Seattle, Washington.
UNITE HERE! Local 878 (“Charging Party” or “Union”) represents a unit of employees working
for CP Anchorage Hotel 2, LLC, d/b/a Hilton Anchorage (“Respondent” or “Hotel”). The parties’ last
collective-bargaining agreement, which expired in 2008, gave Union representatives the right to access
hotel property, including the employee cafeteria in the basement of the hotel. For years, the representatives
regularly visited the cafeteria as their primary method of communicating with unit members. In early March
2017, Respondent proposed to revise the contractual language to limit where and when the representatives
could access the hotel, specifically eliminating access to the cafeteria. The Union sought to bargain over
the proposed changes to access as part of an overall, new collective-bargaining agreement. The General
Counsel alleges, inter alia, that Respondent failed and refused to bargain in good faith, including by failing
to timely provide the Union with requested information, refusing to make proposals and counterproposals,
prematurely declaring impasse, unilaterally implementing its revised access policy, and then contacting the
local police to assist in enforcing the implemented policy. As explained below, I find merit to certain of
the alleged violations.
STATEMENT OF THE CASE
On February 22, 2017, the Union filed the charge in Case 19-CA-19365, which it amended on May
25, 2017, alleging that Respondent unilaterally changed employees’ working conditions and engaged in

1 Abbreviations herein are as follows: “Tr.” for transcript; “Jt. Exh.” for Joint Exhibits; “G.C. Exh.” for General
Counsel’s Exhibits; “R. Exh. ” for Respondent’s Exhibits; and “C.P. Exh.” For Charging Party’s Exhibits. Although
I have included citations to the record to highlight particular testimony or exhibits, my findings and conclusions are
not based solely on those specific citations, but rather on my review and consideration of the entire record.
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2
surveillance when it increased the number of managers and supervisors in the cafeteria when Union
representatives were there interacting with employees. Also on February 22, 2017, the Union filed the
charge in Case 19-CA-193659, which it amended on April 20, 2017, alleging, in part, that Respondent
failed or refused to provide the Union with requested information regarding bussers who worked in one of
the hotel’s restaurants. On July 31, 2017, Respondent entered into a unilateral Board settlement agreement 5
to resolve these two cases, which the Regional Director for Region 19 approved on August 15, 2017. (R.
Exh. 33). The Union later appealed the settlement, and that appeal was denied in January 2018. On
February 1, 2018, the Region informed Respondent it was holding the settlement in abeyance pending
investigation of a subsequent charge (Case 19-CA-212950) alleging, in part, that Respondent was not
complying with the terms of the settlement agreement. (R. Exh. 34).10
On August 1, 2017, the Union filed the charge in Case 19-CA-203675, alleging that Respondent
failed to bargain before unilaterally barring Union interns from accessing the hotel. On January 8, 2018,
the Union filed the charge in Case 19-CA-212923, which it amended on March 2, 2018, alleging that
Respondent failed and refused to provide the Union with requested employee complaints to management 15
that the Union was forcing them to consent to having their statements voice recorded.
On March 2, 2017, Respondent proposed to revise the Union access policy. It implemented that
revised policy in January 2018. On January 10, 2018, the Union filed the charge in Case 19-CA-212950,
which it amended on January 31, 2018, alleging that Respondent failed to bargain in good faith with the
Union, including failing to make counterproposals, ceasing negotiations, refusing future bargaining, and 20
unilaterally implementing its revised access policy. On April 17, 2018, the Union filed the charge in Case
19-CA-218647, alleging that Respondent called the Anchorage Police Department to report that Union
officials were trespassing when they did not comply with the revised access policy. On October 3, 2018,
the Union filed the charge in Case 19-CA-228578, alleging that Respondent bypassed the Union and dealt
directly with unit employees about their terms and conditions of employment, as well as denigrated the 25
Union, by posting a notice on the bulletin board near the employee timeclock.
On April 9, 2019, Respondent executed a unilateral Board settlement agreement to resolve these
charges. That settlement was never approved, and the record does not reflect why. On July 12, the Regional
Director issued an amended consolidated complaint.2 The complaint was further amended on July 25, and
again on August 12. Respondent filed its answer on August 8, and its amended answer on August 24.330
On October 30, 2019, at the conclusion of her case in chief, Counsel for General Counsel amended
the complaint to modify and add certain allegations. The added allegation was that Respondent proposed
to revise the Union access policy on March 2, 2017, in retaliation for the Union filing its initial charge in
Case 19-CA-19365 over the increased presence of management in the employee cafeteria. The resulting 35
document following these amendments will hereinafter be referred to as the final amended consolidated
complaint. (G.C. Exh. 11). On October 30, 2019, Respondent filed its final amended answer, denying the
alleged violations and raising various affirmative defenses. (R. Exh. 43).
At the hearing, all parties were afforded the right to call and examine witnesses, present any relevant 40
documentary evidence, and argue their respective legal positions orally. The parties filed post-hearing

2 On July 11, 2018, an employee filed a decertification petition in Case 19-RD-223516. In accordance with Saint
Gobain Abrasives, Inc., 342 NLRB 434 (2004), the Regional Director consolidated the petition with the amended
consolidated complaint to allow the parties the opportunity to present evidence over whether the allegations at issue
bore a causal relationship to the filing of the petition warranting its dismissal. Following the hearing, the parties
moved to sever and remand the petition to the Regional Director, which I granted by separate order.
3 The Union also filed a charge in Case 19-CA-225466, and allegations from that charge were included in the amended
consolidated complaint. The Regional Director later severed that case and dismissed those allegations.
JD-07-20
3
briefs, which I have carefully considered. Accordingly, based upon the entire record, including the post-
hearing briefs and my observations of the credibility of the witnesses, I make the following findings of fact,
conclusions of law, and recommended order.
FINDINGS OF FACT45
I. Jurisdiction
Respondent admits, and I find, that it has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. Respondent also admits, and I find, that the Union has 10
been a labor organization within the meaning of Section 2(5) of the Act.
II. Collective-Bargaining Relationship and Bargaining History
In about December 2005, Respondent took over operation of the Hilton Anchorage, which is a 606-15
room hotel in the downtown area. At the time, Respondent recognized the Union as the exclusive
collective-bargaining representative of the following bargaining unit:
All full-time and part-time banquet bartenders, banquet captains, banquet servers, banquet
housemen, baristas, bellmen, bell captains, bruins bartenders, bus persons, cashiers, coat 20
check/room check attendants, cocktail servers, concierges, cooks, dishwashers/stewards,
doormen, front desk/PBX employees, hosts/hostesses, housekeeping clerks,
housekeepers/room attendants, housemen, housekeeping inspectors, laundry presser/chute
employees, laundry washers, maintenance employees, maintenance supervisors, night
auditors, purchasing employees, restaurant servers, and room service employees employed at 25
the facility located at 500 West 3rd Avenue, Anchorage, Alaska.
Respondent also adopted the existing collective-bargaining agreement, dated September 1, 2004 to
August 31, 2008. (Jt. Exh. 2). In 2008 and 2009, the parties met to bargain over a successor agreement.
On March 30, 2009, Respondent declared an impasse in those negotiations, and, on April 13, 2009, it30
implemented portions of its March 11, 2009 contract proposal (“Implemented Agreement”). In 2013,
Respondent proposed to end its participation in the Union’s health fund and move the unit employees to
the company’s health plan. The parties met for negotiations, and those negotiations ended in February
2014, after Respondent declared impasse and announced implementation of its proposed health care change
on April 1, 2014.5 35

4 The Findings of Fact are a compilation of credible testimony and other evidence, as well as logical inferences drawn
therefrom. To the extent testimony contradicts with the findings herein, such testimony has been discredited, either
as in conflict with credited evidence or because it was incredible and unworthy of belief. In assessing credibility, I
primarily relied upon witness demeanor. I also considered the context of the witness's testimony, the quality of the
witness’s recollection, testimonial consistency, the presence or absence of corroboration, the weight of the respective
evidence, established or admitted facts, inherent probabilities, and reasonable inferences that may be drawn from the
record as a whole. See Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622,
623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. sub nom., 56 Fed. Appx.
516 (D.C. Cir. 2003). Credibility findings need not be all-or-nothing propositions. Indeed, nothing is more common
in judicial decisions than to believe some, but not all, of a witness’s testimony. Daikichi Sushi, supra at 622; Jerry
Ryce Builders, 352 NLRB 1262, 1262 fn. 2 (2008) (citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d
Cir. 1950), rev’d. on other grounds 340 U.S. 474 (1951)).
5 In February 2014, Respondent’s then-attorney sent the Union a letter stating the parties were at impasse on four key
issues: wages, health care, the 17-room cleaning requirement, and successors/assigns language. On wages, the Union
proposed wage increases to match the rates paid at the nearby Captain Cook hotel. With respect to health care, the
Union proposed that the Hotel remain in the Union health and benefit trust fund and pay the increased employer
JD-07-20
4
In recent years, the Union and its International Union have attempted to exert economic pressure on
Respondent to return to the bargaining table to negotiate a successor collective-bargaining agreement by
holding rallies or protests involving politicians and the media, circulating flyers or surveys suggesting the
presence of asbestos, mold, and air quality issues inside the hotel, and urging a consumer boycott. 5
III. Union Access
Article IV of the collective-bargaining agreement, which remained unchanged in the Implemented
Agreement, is entitled “Union Representative Visits.” It states that:10
Business representatives or other authorized representatives of the Union shall be permitted to
visit the premises of the Employer at reasonable times during the working hours, provided
such representatives first make their presence known to the Employer or other appropriate
management. No interview shall be held with employees during rush hours. Business 15
representatives or other authorized representatives of the Union shall conduct employee
interviews in non-working areas (i.e. employee cafeteria).
(Jt. Exh. 2, pg. 5).6
20
In late June 2015, volunteers with the International Union walked through the hotel and placed
surveys under guestroom doors asking guests to rate any air quality, water leakage, or mold issues in their
rooms. On July 2, 2015, Respondent’s then-General Manager Bill Tokman sent the Union a letter
demanding the solicitation immediately cease and not recur, stating that such distribution far exceeded the
access granted under Article IV. (R. Exh. 12).25
On July 10, 2015, Respondent sent the Union a letter proposing to change the language in Article IV
to the following:
Business representatives or other authorized representatives of the Union shall be permitted to 30
visit the premises of the Employer at reasonable times during the working hours, provided
such representatives first make advance arrangements with the General Manager or his
designee. When visiting the Hotel, the Union representative shall sign in and out on a log
maintained by the Employer at the front desk. The Union representative shall print and sign
his name and record the time he entered and left the Hotel. When the Union representative 35
notifies the General Manager in advance of his desire to visit the Hotel, the General Manager
will make a room available for the Union representative to use. Meetings by the Union
representative with Hotel employees shall be limited to the room made available to the Union
by the General Manager unless other arrangements are made with the General Manager. If
the Union wishes to meet with employees in a particular location, an advance written request 40
shall be sent by the Union to the General Manager. No meetings shall be held with employees
during rush hours.
(R. Exh. 13).
45

contributions. On the 17-room cleaning requirement, which dealt with the number of rooms housekeeping staff were
expected to clean during their shifts, the Union sought to progressively reduce the requirement from 17 down to 15.
The letter does not explain the Union’s position on successors/assigns language. (Jt. Exh. 5, pg. 1-2).
6 This is interchangeably referred to as the visitation policy or the access policy.
JD-07-20
5
The Union demanded to bargain and the parties met for bargaining in late summer 2015. The Union
submitted an information request asking Respondent to provide its rationale for revising the access policy.
Respondent answered that it wanted to restrict where and when Union representatives could be on the
property because of instances in which Union representatives or others were: accessing the property to
speak to on-duty employees, including in the mechanical room of the hotel, which posed a safety concern; 5
walking around the property to take airborne or other samples without permission; distributing surveys
under guestroom doors without permission; going into the employee cafeteria to make announcements and
disrupting employees eating their meals; and holding public rallies, protests, or demonstrations inside the
hotel. (R. Exh. 15).
10
Union President Marvin Jones later spoke with Tokman about the revised policy, specifically the
distribution of flyers or surveys under guestroom doors. Jones promised that, under his leadership, the
Union would not engage in such conduct in the future. After further communication, Tokman notified
Jones on December 23, 2015, that, for the time being, the Hotel was willing to forego the proposed change,
but it reserved the right to revisit the issue in the future if it deemed appropriate. (R. Exh. 20).15
Eight months later, the Union distributed flyers under guestroom doors at the nearby Anchorage
Marriott Hotel. Both the Hilton Anchorage and the Anchorage Marriott are owned by Columbia Sussex.
The flyer noted the common ownership and stated the Hilton had lead, asbestos, and mold issues, and that
“Columbia Sussex must assure that asbestos and lead remain safely contained whenever it performs work 20
to address leaky pipes, mold, and other maintenance issues at the Anchorage.” (R. Exh. 16).
Respondent’s then-attorney sent the Union a letter objecting to the distribution of the flyers, noting
that Respondent previously objected to the Union placing flyers under the guestroom doors at the Hilton,
and the Union assured Respondent it would not happen again. The letter further stated that Columbia 25
Sussex does not allow third parties, including the Union, unfettered access to its hotels. The letter concluded
by threatening legal action if there was any further unauthorized entry onto its property. (R. Exh. 17).
IV. Alleged Unfair Labor Practices
30
A. Information Request Regarding Bussers
In January 2017, Soham Bhattacharyya replaced Tokman as the Hotel’s General Manager.
Bhattacharyya had been the interim General Manager for a few months prior. On January 3-4, 2017, Union
President Jones sent Bhattacharyya four letters alleging Respondent was violating the parties’ agreement.35
In one letter, Jones claimed Respondent was reducing the hours of bussers working in the hotel’s Berry
Patch restaurant and having the wait staff assume their duties. Jones demanded these practices cease
immediately and that bussers be made whole for lost wages and benefits from November 1 to the present.
Jones also requested copies of the bussers’ schedules, timecards, and payroll records for that time period.
(Jt. Exh. 7). 40
At the time, Bhattacharyya was on an extended family vacation. On January 20, he responded to
the letters Jones had sent. Regarding the bussers, Bhattacharyya wrote: “It is not our practice to have
restaurant servers buss their own tables. We have 2 bussers on payroll for the AM shift. They are scheduled
consistently; however, there have been a few occasions when the morning bussers have called in for the 45
shifts, on the day of. On such short notice in the morning, it has been hard to find a replacement for those
few occasions.” Bhattacharyya also noted that the restaurant’s name had changed from Berry Patch to
Hooper Bay in around 2006. (Jt. Exh. 8). Bhattacharyya did not include or provide any of the requested
information. He testified he had intended to provide the information but simply forgot because he had
several letters to respond to from the Union. (Tr. 703; 709). The Union did not follow-up on its information 50
request regarding the bussers.
JD-07-20
6
On February 22, 2017, the Union filed its original charge in Case 19-CA-193659, alleging
Respondent unilaterally reduced the bussers’ hours without bargaining with the Union. On April 20, the
Union amended that charge to allege Respondent also failed to provide the Union with the requested
information. On June 2, Respondent’s attorney provided Jones with the requested schedules, timecards, 5
and payroll records, stating that Bhattacharyya had forgotten the Union had requested them. (Jt. Exh. 15).
B. Managers and Supervisors in the Employee Cafeteria/Breakroom
As noted, the hotel has an employee cafeteria in its basement. It consists of a larger room and an 10
adjacent smaller room. The larger room has 7 table booths, and the smaller room has 6. The food,
beverages, and buffet line are in the larger room. Both rooms have televisions for employees to watch. The
Union maintains a bulletin board outside the entrance to the large room.
Respondent serves complementary meals for all employees between 10 a.m. and 1 p.m., and again 15
at 5 p.m. Employees may go to the cafeteria at any time to take their half-hour lunch break. The only
requirement is that they must remain in the cafeteria while they eat.
Union Representative Danny Esparza has visited the employee cafeteria Monday through Friday,
between 10 a.m. and 11 a.m., since at least 2010. These visits served as the Union’s primary method of20
communicating with members. In 2017, Union Organizer Dayra Valades began accompanying Esparza on
his visits to the hotel. Upon entering the hotel, they typically would head to the basement, examine the
Union bulletin board, check the quality of the food being served, and then walk around the cafeteria to talk
with employees. Most employees took their lunch break when the representatives were in the cafeteria.
25
Respondent’s supervisors and managers also used the employee cafeteria for meals and breaks.
According to Esparza, prior to February 2017, he saw Human Resources Manager Daniel McClintock and,
on occasion, Director of Housekeeping Ivan Tellis in the cafeteria.7 Esparza saw McClintock daily, and he
usually would be in the cafeteria eating his lunch for 10-20 minutes. (Tr. 75-76). Esparza saw Tellis in the
cafeteria between once a week to once a month, and he usually would stay for 10-15 minutes. (Tr. 77-78). 30
Esparza initially could not recall seeing any other managers in the cafeteria prior to February 2017, but he
later acknowledged that he saw Director of Maintenance Bob Best there a couple of times. (Tr. 153).8
Other managers testified they also ate lunch in the cafeteria prior to and after February 2017.
Director of Rooms Brandon Donnelly testified he usually arrived between 10 and 10:30 a.m. and would 35
stay for about 20 minutes. Steven Rader, the Assistant General Manager who later became the General
Manager, testified that he arrived at around 10 a.m., but he did not testify about how long he usually stayed.

7 The General Counsel alleges McClintock is a statutory supervisor and agent. The General Counsel has not articulated
how McClintock’s status is material to my decision. Regardless, I find the General Counsel has failed to prove either.
See Oakwood Healthcare, 348 NLRB 686, 694 (2006) (burden regarding supervisory status); and Pan-Oston Co., 336
NLRB 305, 306 (2001) (burden regarding agency status). The proffered evidence was limited primarily to
McClintock’s job title(s) and position descriptions. That evidence alone is insufficient. What matters is the evidence
about the actual authority the individual possesses and the actual work he/she performs. See Loyalhanna Health Care
Assoc., 352 NLRB 863, 864 (2008). The evidence the General Counsel presented regarding McClintock’s authority
and work was cursory and insufficient to meet the burden(s).
8 Esparza genuinely struggled to independently recall and differentiate which managers and supervisors came to the
cafeteria prior to February 2017. He explained the reason was that his focus was more on the members he was speaking
to, and less on who else was there. He usually only noticed if he saw someone unfamiliar to him. (Tr. 165-166).
Overall, I found his testimony on this topic to be vague, uncertain, and generally unreliable.
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General Manager Bhattacharyya testified he regularly ate lunch in the cafeteria, but the time of day varied
based on his schedule. He usually remained for 10-25 minutes.9
On February 7, 2017, Esparza and Valades went to the employee cafeteria at around 10 a.m. They
saw Bhattacharyya, Rader, Tellis, McClintock, Donnelly, Best, and Director of Food and Beverage Leonard 5
Esquivel holding a “stand-up meeting” in the middle of the large room in the cafeteria.10 This was the first
time Esparza or Valades saw management hold a stand-up meeting in the cafeteria. Bhattacharyya invited
Esparza to join the meeting, and Esparza declined. Esparza and Valades then went into the smaller room
and spoke briefly with some laundry workers sitting in there.
10
The following day, Esparza and Valades returned to the employee cafeteria at 10 a.m., and they
noticed the same managers holding another meeting in the middle of the large room. When Esparza asked
Bhattacharyya why he was in the cafeteria, Bhattacharyya responded they were there to discuss guest survey
results and to recognize the performance of certain employees. Esparza testified Bhattacharyya held
another meeting with managers in the cafeteria on February 21, 2017, at around 10 a.m., but Esparza did 15
not provide any details regarding the contents of that meeting.
Esparza testified that in the weeks and months that followed, there were between 3 to 6 members
of management in the cafeteria each time he and Valades were there, and those managers typically stayed
for 30 minutes or more.11 According to Esparza, these members of management usually sat and ate lunch 20
with one another or alone, and some would sit and try to talk to employees. Except as stated below, Esparza
provided no other details about the conduct or statements of the managers or supervisors he saw. Valades
corroborated that there was an increase in the number of managers and supervisors in the cafeteria starting
in early February, but she offered few additional details.12
25
Bhattacharyya, Rader, and Donnelly confirmed they continued to come to the cafeteria after
February 2017, and they usually would eat alone or with another member of management. They greeted
employees they saw but seldom engaged them in conversation. The same is true when they saw Esparza
and Valades. They denied watching or listening to the representatives’ conversations with employees.

9 I credit that Bhattacharyya, Rader, and Donnelly regularly ate in the employee cafeteria when the Union
representatives were present, before and after February 2017, as they each had a clear, confident, and detailed
recollection of those events and a better understanding about their meal-time habits.
10 Respondent holds morning “stand-up” meetings with department heads Monday through Friday to recap events
from the prior day and discuss the plan for the upcoming day. These meetings began at around 10 a.m. in the General
Manager’s office and lasted about 25-30 minutes. In January 2017, when Bhattacharyya took over as General
Manager, he moved the meeting to 9:30 a.m. to free up managers to help with checkouts and in “turning over” the
hotel for incoming guests. He also rotated the location of the meetings from his office to various places throughout
the hotel. He testified he did this to break up the monotony and to go to areas where the managers could recognize
staff members for their good performance. Bhattacharyya also held employee appreciation events at other locations
in the hotel, including in the ballroom and in the upstairs restaurant.
11 With certain exceptions, Esparza could not independently recall what managers or supervisors he saw in the cafeteria
after February 2017. Additionally, his testimony regarding February and March differed from his prior (and more
contemporaneous) sworn statements or testimony. Pages from Esparza’s notebook were introduced into evidence to
help refresh or supplement his recollection. (R. Exh. 7). The notes are sparse and generally only reflect the name or
title of the supervisors or managers he saw and the date. According to his notes, he saw managers and supervisors in
the cafeteria on February 21, March 13, May 9-11, 15-20, 24-25, and 30, June 5 and 13-14, and July 25-26, 2017. The
names of Bhattacharyya, Rader, Tellis, Donnelly, and/or McClintock appeared most frequently. Esparza, however,
testified his notes were not exhaustive, and that he saw multiple managers in the cafeteria daily.
12 Pages from Valades’s notebook were also introduced into evidence. (C.P. Exh.1). Like Esparza, her notes are
limited, only reflecting the name of the supervisors or managers and date she saw them in the cafeteria. Her notes
reflect she saw members of management on June 7-9, 13-16, 21 and 25-28, 2017. The discrepancies between her
notes and Esparza’s notes over names and dates, which were unexplained, call into question their overall accuracy.
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8
Bhattacharyya and Donnelly testified it was difficult to hear much of anything being said in the cafeteria
between 10 a.m. and 11 a.m., because of the noise from the televisions and all the different conversations
that were occurring, many of which were not in English.
Esparza testified that on around May 9, when he was in the large room of the employee cafeteria, 5
he saw Bhattacharyya talking with a unit employee. Esparza could not hear what was being said or
discussed. On May 11, when Esparza arrived in the large room of the cafeteria, he saw Bhattacharyya and
some other managers, including Daniel McClintock, there. Esparza later went into the small room to talk
with employees, and he noticed McClintock enter the room with a plate of food. Esparza did not testify as
to what, if anything, McClintock said or did, or where he was, while in the small room.10
On about May 30, Esparza and Valades went into the employee cafeteria and spoke with J-1 visa
employees about an upcoming Union rally.13 Esparza noticed that Bhattacharyya was behind him after he
spoke with the employees, and Bhattacharyya asked if he could come to the Union rally, too. Esparza
responded that Bhattacharyya could come if he wanted. Esparza then proceeded to walk into the small 15
room, where he saw three J-1 visa employees eating pizza they had brought from home. Esparza introduced
himself, handed out flyers for the rally, and he invited them to attend. After he spoke with the employees
about the rally, Esparza heard Bhattacharyya behind him, asking the employees if he could have some of
their pizza, telling them he didn’t care if Esparza made fun of him (for eating their pizza). Bhattacharyya
did not testify about these events.20
C. Proposal to (Again) Revise Union Access Policy
On February 22, 2017, the Union filed its charge in Case 19-CA-193656, claiming Respondent
unilaterally changed employees’ working conditions by holding management meetings in the cafeteria at 25
times when the Union representatives were interacting with unit members, and those meetings interfered
with, restrained, or coerced employees in the exercise of their Section 7 rights. Eight days later, on March
2, 2017, Bhattacharyya sent Marvin Jones and Esparza a letter proposing to modify the language in Article
IV, effective March 17, to the following:
30
Business representatives or other authorized representatives of the Union shall be permitted to
visit the premises of the Employer on Tuesday and Friday between 10:00 a.m. and 11:00 a.m.,
provided such representatives first make advance arrangements with the General Manager or
his designee. When visiting the Hotel, the Union representative shall sign in and out on a log
maintained by the Employer at the front desk. The Union representative shall print and sign 35
his name and record the time he entered and left the Hotel. When the Union representative
notifies the General Manager in advance of his desire to visit the Hotel, the General Manager
will make a room available for the Union representative to use. Meeting by the Union
representative with Hotel employees shall be limited to the room made available to the Union
by the General Manager. 40
(Jt. Exh. 9).14

13 The J-1 visa is a temporary, nonimmigrant student visa that allows foreign post-secondary students to study and
work in the US through an approved, government-sponsored exchange program. See www.uscis.gov/working-united-
states/students-and-exchange-visitors/exchange-visitors.
14 Bhattacharyya testified that after he took over as General Manager, he determined there needed to be greater
formality and consistency with how, when, and where the Union representatives accessed the hotel. He consulted
with Respondent’s attorney in late January, and he began drafting proposed revisions in early to mid-February 2017.
Bhattacharyya testified he waited until early March to present the proposal to the Union because in January and
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9
The following day, Bhattacharyya sent the Union a letter stating that on March 1, 2017, a number
of employees complained to management that Jones and Esparza were interfering with their personal time
in the cafeteria and making them provide voice-recorded statements as part of a Union investigation.15
Bhattacharyya noted in his letter that the cafeteria is a place where employees can spend personal time as 5
they please, without being badgered, stating the employees work hard and a half-hour lunch break is all
they get to relax, eat, and chat with their colleagues, and some employees complained to management that
the Union representatives would come and sit at their tables without asking the employees if it is alright to
join them. (Jt. Exh. 10).
10
The Union later informed Respondent it wanted to bargain over the proposed changes to Article
IV. The parties first met for bargaining on April 21, 2017, and each side had a bargaining committee.
International Union representative David Glaser was the Union’s spokesperson, and Respondent’s then-
attorney Bill Evans was its spokesperson. Evans began by explaining the proposed change was in response
to complaints by employees regarding the Union representatives’ behavior while at the hotel, the Union’s 15
recent unfair labor practice charge that management was engaging in unlawful surveillance in the cafeteria,
and the desire to have more formality over the times and places the Union could be present to meet with
unit employees. (R. Exh. 10). As for this second point, Evans noted the Respondent believed its proposal
was a reasonable way to address the concerns the Union raised in its charge about managers being present
in the cafeteria when the Union representatives were there. He added that employees obviously want the 20
Union, but not all of them. The Union, through Glaser, voiced opposition to the change, stating it restricted
the Union’s ability to talk to its members and worsened the parties’ already-strained bargaining relationship.
The parties then discussed the language of the proposal and how it would be interpreted and applied. At
some point during the session, Glaser discussed that employees had not received a wage increase for several
years. He also referred to the Hotel as “bad people” or “bottom feeders” because of how it treated its 25
employees. (Tr. 236).
Following a caucus, Glaser stated the Union wanted to have further negotiations about the Union
access proposal. He also stated that “[b]ecause of the severity of [the access] proposal, [the Union] will
want to expand negotiations.” Glaser pointed out that the parties have been working under an expired 30
contract for eight years, the Union health insurance had been gone for 3 years, wages had not increased, the
use of J-1 visa employees had exploded, and there were issues with mold, lead, and asbestos in the last few
years. He added that if the Hotel proposed substantial wage increases and health insurance, along with
changes to Union access, then the situation would be different. He concluded the letter by stating the Union
would have more questions and would be making a “voluminous” information request. (R. Exh. 10). 35
On April 29, 2017, Evans emailed Glaser about whether the Union wanted to schedule another
bargaining session regarding the revised access proposal, noting the Hotel made its proposal on March 2
and, to date, the Union had not submitted any proposed changes or counterproposal. On May 1, 2017,
Glaser emailed Evans that he was in the process of preparing a response, but that, in short, the Union wanted40
to continue bargaining. (Jt. Exh. 11). On May 8, 2017, Glaser wrote Evans a lengthy letter stating that the
Union wanted to continue negotiations over the access policy, and that the Union would have additional
questions and it would provide those questions as soon as it could. (Jt. Exh. 12). Glaser went on to state
that it had become clear to the Union that these negotiations would need to deal not only with the changes
to Article IV, but also with the entire range of unresolved issues preventing the Union and the Hotel from 45
reaching a new collective-bargaining agreement. He stated:

February, Respondent was attempting to secure refinancing, and he was concerned the Union would try to interfere
with that process if it knew the Hotel wanted to revise the access policy.
15 Bhattacharyya later communicated with Union President Marvin Jones about the complaints, and Jones advised
Esparza he was to no longer voice record statements from employees. (Tr. 233-234).
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10
… there is a much better chance of the parties reaching an agreement as to the proposed new
rules if there is a quid pro quo at the bargaining table, i.e., a concession by Columbia Sussex
regarding some other issue in dispute. As you know, that is how win-win deals get done; when
there is only one issue on the table, it tends to be much more of a zero-sum game, where one 5
party can only win if the other loses, and negotiations that can have only that outcome are
much, much harder to resolve through mutual agreement.
Glaser further stated that even beyond the importance of reopening full negotiations to meaningfully deal
with the new access policy, it has become apparent that such negotiations are necessary before any changes 10
can be implemented because it can no longer be asserted that the parties are at impasse in their negotiations
over a new agreement. He cited several factors for how the impasse had been broken, including: the passage
of time (8 years) since the Hotel declared impasse, the change in economic circumstances in both the Hotel’s
revenue and profitability and changes in the cost of living for employees, and the need for new rules and
policies relating to workplace health and safety, particularly the exposure to mold, asbestos, and lead paint.15
Glaser requested that the parties schedule two consecutive days in June for bargaining.16
On May 11, Evans responded to Glaser’s letter and disputed that the parties were no longer at
impasse. (Jt. Exh. 13). He stated that both parties have continued to maintain their positions and he was
unaware of any changes that broke the parties’ impasse. If there was a change in the Union’s position(s), 20
Glaser should make him aware and he would evaluate the change(s) with his client. Evans concluded that
the Hotel stood ready to continue negotiations over access, but it would not broaden the negotiations to
include additional issues. He believed a half day would be enough to complete negotiations.
On May 16, Glaser submitted a request for information related to wages, medical coverage, 25
housekeeper workload, and other matters, including specific situations in which a Union representative
caused any type of disruption or interference with Hotel operations. (Jt. Exh. 14).17 On June 5, Evans
responded by providing the Union with a portion of the requested information. On the instances of
disruption or interference by Union representatives, Evans wrote:
30
As we discussed at some length during our one and only negotiation session, there have been
a number of episodes that the Hotel is aware of in which the presence of Union officials in the
Hotel has resulted in disruption. These include in June 2015 the Union placing flyers under
guest doors asking guests to evaluate the condition of the rooms based on visible mold
sightings, visible water leaks and air quality issues. Although somewhat different in nature, in 35
August 2016 the Union placed flyers under the guest room doors at the Marriott claiming that
the Hilton had mold, asbestos and lead problems. In March 2017 there was the incident when
employees complained to management about a Union representative trying to voice record
them in the cafeteria and complaining that Union representatives sit at their tables without
being invited to do so. Earlier this year, Mr. Bhattacharyya observed Union representative 40

16 Glaser testified he proposed bargaining sessions in mid-to-late June because the Union intended to request
information from Respondent on wages, healthcare, and other matters to allow the Union to prepare its bargaining
proposals, and because the Union’s attorney, Dimitri Iglitzin, was unavailable until June because of his travel and
vacation commitments. (Tr. 235-242). The sessions were later scheduled for early August.
17 On numerous occasions beginning on May 16, 2017, and continuing into July 2017, the Union requested information
from Respondent which included particularized job history information about each employee in the bargaining unit,
all wages paid over a three-year period, all employee discipline for four years, employees' immigration status, room
cleaning documentation including room cleaning averages over a three year period, health plan participation by each
employee, and information related to repairs Respondent's hotel building. Beginning on June 5, 2017, Respondent
provided documentation in response to these information requests. Respondent continued to provide responsive
documentation in the weeks that followed. (Jt. Exh. 1, pg. 5). The production lasted into August 2017.
JD-07-20
11
Danny Esparza going into the second floor banquet space without permission (previous GM
Bill Tokman reported seeing Mr. Esparza in the mechanics rooms also without permission).
There have also been incidents during which Union representatives have stopped by the bell
desk and coffee shop to have quick chats with employees and thus distracting them from their
duties. In addition, Union representatives have brought other people into the cafeteria, 5
individuals wholly unknown to Hotel management (e.g. a housekeeper from Santa Monica,
earlier this year). Former GM Tokman also reports the Union bringing in a local politician and
news crews into the cafeteria without notice or permission.
(Jt. Exh. 16).10
Evans also reiterated that it did not appear the parties’ positions had changed regarding wages or the
other matters since they reached impasse. He stated, however, that as a showing of good faith, Respondent
was willing to consider opening bargaining on the issue of dues check-off. (Jt. Exh. 16).
15
On June 27, 2017, Evans emailed Glaser asking if the Union had heard back from its attorney
regarding dates for negotiations, adding the Hotel wanted to schedule enough time in the parties’ next
meeting to complete those negotiations. (Jt. Exh. 18). That day, Glaser wrote back to Evans raising issues
with the information the Hotel provided in response to the Union’s requests, including any witness
statements regarding the alleged instances in which Union representatives were observed causing disruption 20
or interference at the hotel. (Jt. Exh. 19). Glaser also disputed Evans’ statements that there had been no
changes in the parties’ positions and denied there was dispute over dues check-off. Glaser reiterated the
parties should set aside two days to bargain toward a successor agreement, and he offered to begin
bargaining on August 3 or 4, 2017. (Jt. Exh. 19). On June 29, Evans wrote Glaser stating that although the
Hotel did not believe it was necessary to set aside two days to negotiate over the Union access policy, it 25
was willing to set aside as much time as the Union deemed necessary to make a real and honest effort at
resolving that issue, and it was willing to meet on August 3 and 4. On the issue of dues check-off, Evans
pointed out he proposed bargaining over the topic because it was his understanding that it had been
eliminated (by omission) from the Implemented Agreement. (Jt. Exh. 20).
30
On July 24, 2017, Glaser emailed Evans that the Union remained convinced there was a meaningful
possibility the parties would be able to reach a successor agreement. Glaser stated that according to a
February 2014 letter from the Hotel’s then-attorney, the key points of impasse were: (1) the number of
rooms to be cleaned by room attendants, (2) wages, (3) health care, and (4) successor and assigns language.
Glaser commented there was substantial room for change regarding the Union’s past positions on those 35
items, and there was no reason to doubt the Hotel’s position would be amenable to modification as well.
To that end, Glaser requested additional information on each of these topics to prepare for bargaining. (Jt.
Exh. 24). Respondent later provided the Union with that requested information in August. (Jt. Exhs. 25,
26, and 28-35). Some was provided prior to the August bargaining sessions and some was provided after.
40
D. Barring Union Interns from the Hotel
The International Union has a summer internship program called Organizing Beyond Barriers
where it educates college-aged individuals about the labor movement and UNITE HERE!. In the summer
of 2017, Glaser and the Union wanted interns from this program to start coming to Respondent’s hotel. 45
Glaser testified the reason was because there were many J1-visa employees working at the hotel, and he
believed they would benefit from having “people their own age talk to them about the Union.” (Tr. 257).
At some point in the summer of 2017, Danny Esparza called Bhattacharyya asking if he could bring
four to six interns with him during their visits to the employee cafeteria. Bhattacharyya declined that request 50
because of the limited amount of space in the cafeteria and the total number of people the Union was seeking
JD-07-20
12
to bring. Marvin Jones then called Bhattacharyya, asking him to reconsider his decision regarding the
interns. Bhattacharyya agreed he would allow two interns to accompany either Jones or Esparza, but not
more. Jones thanked him and that was the end of the conversation. (Tr. 710).
On around July 26, the Union sent individuals to go into the Anchorage Marriott Hotel to speak 5
with its unrepresented housekeeping employees about their working conditions. Management at that hotel
took photos of the individuals and contacted the Anchorage Police Department. The Marriott’s General
Manager later shared the photos with Bhattacharyya, who recognized certain of the individuals as the
interns the Union representatives brought with them when they came to the Hilton.
10
On July 27, Bill Evans emailed Jones regarding the incident, stating that individuals were
trespassing at the Marriot, and some of those individuals were subsequently identified as “interns” for the
Union. Evans wrote that “[i]n light of this activity, the management of the Hilton Anchorage is, effective
immediately, formally withdrawing its previously granted permission that allowed interns to be present in
the Hotel.”18 Evans stated the interns were no longer welcome on Hotel property and the Union should take 15
the necessary steps to ensure they did not accompany Jones or Esparza when visiting. (Jt. Exh. 27).
E. Bargaining, Request for Information about Employee Complaints, Declaration of Impasse, and
Implementation of Revised Union Access Policy
20
Respondent and the Union next met for bargaining on August 3 and 4, 2017.19 The Union, through
its attorney, Dimitri Iglitzin, stated the five major issues for negotiations appeared to be: wages, health
care, the number of rooms to be cleaned by room attendants (also referred to as the 17-room requirement),
successor/assigns language, and Union access. He added the Union was “prepared to make substantial
movement.” (G.C. Exh. 5). The Union offered to begin by discussing the Union access proposal. 25
According to the Union’s bargaining notes, Respondent provided the 10 following reasons for wanting to
revise the Union access policy: (1) managers were inhibited from going into the cafeteria (because of the
Union’s unfair labor practice charge); (2) non-union employees having their peaceful meal breaks
interrupted by Union staff; (3) Union members were unwillingly spoken to by Union representatives; (4)
Hotel’s unhappiness with Union representatives presence in public areas of the hotel; (5) Union’s disruptive 30
behavior in public areas of the hotel (e.g., demonstrations in the lobby); (6) Union representatives talking
to unit members (e.g., doormen or bellmen) while on the clock; (7) Union staff taking airborne samples
inside the hotel; (8) Union representatives in inappropriate areas of the hotel (e.g., mechanical/boiler room);
(9) distributing materials/flyers (i.e., door drops) in public and private spaces; and (10) Union
representatives bringing non-employees onto the property without management’s authorization. (G.C. Exh.35
5, p. 4).20 The Union then proposed changes for how it would access the hotel, including providing notice
when Union representatives came for any purpose other than meeting with employees in the cafeteria, and
seeking permission before engaging in activities such as distributing leaflets in the hotel. Respondent,
through Evans, stated these were not concessions because the Union already was required to provide notice

18 Glaser denied the Union asked Respondent for permission to have interns access the Hilton, and he stated he knew
this because he had asked Esparza and Jones. Esparza and Jones did not testify on this topic. Overall, I credit
Bhattacharyya over Glaser on this point, as I find it improbable that the Union would bring unknown individuals into
the cafeteria without first notifying the Hotel and getting its permission, particularly after Respondent raised concerns
about such conduct.
19 During the August 3 bargaining session, there was a review of the current wages, hours, and terms and conditions
of employment. Respondent’s bargaining committee referred to a document called the “3-11-16 Terms Applicable,”
which contained terms that differed from the Implemented Agreement. The Union was unaware of how the different
terms came into being and how they were being applied to the unit employees. The August 3 session was spent
discussing the document and the Union asking questions.
20 During this discussion, Iglitzin orally requested the names of the employees who allegedly complained about the
Union representatives’ conduct in the cafeteria. (Jt. Exh. 1) (G.C. Exh. 5, pg. 5).
JD-07-20
13
when it accessed the hotel and seek management’s permission before distributing materials. The Union
disagreed it was under any obligation to do either. During this session, Respondent showed the Union the
room on the first floor of the Hotel it proposed allowing the Union to use in lieu of meeting with employees
in the cafeteria.
5
Also, during the August 4 session, Iglitzin stated the Union had changed its prior bargaining
positions on wages and health care. It was no longer seeking for the Hotel to participate in the Union’s
health benefit trust fund, nor seeking for the Hotel to match the wages paid at the nearby Captain Cook
hotel. He stated the Union would provide specific proposals. (Tr. 245-246) (G.C. Exh. 5, pg. 7). There
was no discussion about the 17-room requirement or successorship and assigns language. 10
On August 5, 2017, Evans emailed Glaser to recap the broad outlines of where the parties were
regarding negotiations. (Jt. Exh. 37). Two days later, Evans sent Glaser a second email stating Respondent
was flexible regarding the parties’ next negotiation sessions, but it believed the next session should occur
no later than mid-September. (Jt. Exh. 38). 15
On August 9, Glaser emailed Evans regarding negotiations. On the issue of Union access, Glaser
noted Respondent had provided the Union with 10 reasons why it wanted to change the policy, and of those
reasons 3 dealt with the Union’s access to and use of the employee cafeteria; 4 dealt with the Union’s
conduct in areas of the hotel that are open to the public; and 3 involved Union access to non-public areas 20
of the hotel. He reiterated that during bargaining, the Union stated it would be willing to agree to contract
language that changed the status quo in two respects: the Union would agree to give notice before making
use of access rights that is out of the ordinary, that is, other than routine entering the premises and meeting
with bargaining unit members in the cafeteria; and the Union would agree to seek permission prior to
engaging in certain types of highly unusual conduct that might conceivably be seen as going beyond mere 25
“access” to the facility, such as having a demonstration in the lobby or putting flyers under guest doors.
Contrary to the Respondent’s assertions that providing notice and obtaining permission were already
required, Glaser stated that these proposed changes would “significantly alter the status quo in the direction
the Employer seeks, and should, in all fairness, have been accepted as such.” (Jt. Exh. 39).
30
Glaser stated the Union would provide a written counterproposal regarding Union access, and it
hoped to prepare “a concept” for a new wage proposal. He further stated the Union did not yet have enough
information about the company health plan to develop a proposal on that topic, but it would do so as soon
as it could. To that end, he requested a copy of the summary plan description for the company health plan.
He stated he did not anticipate the Union being able to prepare a proposal addressing successorship anytime 35
soon because of his focus on these more complex and important issues. (Jt. Exh. 39).
In this letter, Glaser reiterated his previous oral request for copies of “the employee complaints that
were allegedly made about a Union representative’s activities on site sometime in March 2017, providing
the names of the employee(s) who allegedly complained, any written statement provided by such 40
employee(s), and any other written documents, such as the recorded recollections of any management
employees, that reveal the substance of those alleged complaints.” (Jt. Exh. 39).
On August 15, in response to Respondent’s requests for future bargaining dates, the Union stated
that Glaser and Iglitzin were both first available to travel to Anchorage for two successive days of 45
bargaining on October 24 and 25. (Jt. Exh. 40).
On August 17, Evans wrote Glaser a letter regarding the scope of negotiations, stating:
…. The access issue was the sole issue identified by the Hotel for bargaining. I thought I was 50
very clear in my previous correspondence, but in case I was not, let me reiterate that the Hotel
JD-07-20
14
is not proposing any other changes to the terms and conditions of employment. Put even more
clearly, the Hotel has not changed its position on any of the four areas you have identified for
bargaining (i.e. wages, health care, 17-room requirement and successorship).
In contrast, the Union has indicated that it has changed its position significantly on the four 5
identified areas. Based on the Union's assertion that its position on the four identified areas
has changed, the Hotel has agreed to bargain in good faith concerning these supposed changes.
Accordingly, while the Hotel will bargain in good faith, it would be a mistake to conclude that
our willingness to bargain signals an intention to offer our own proposals on any of the
identified issues. We will certainly keep an open mind regarding any proposal the Union 10
makes and will give it honest consideration.
I am hopeful that I have clearly conveyed the Hotel's position and expectations. Unfortunately
it is somewhat difficult to be specific because despite the Union indicating that it has
significantly changed its position regarding the four identified issues, it has not provided any 15
actual proposals. Strangely, despite telling us that your positions have significantly changed
regarding the four issues, you also claim to need further information in order to define what
your proposals actually are. Remarkably, you have even indicated that your proposal on
"successorship" will not be forthcoming "anytime soon."
20
…. We have agreed to negotiate with you concerning any other changes you may propose, but
we have no intention of forestalling negotiations on our access proposal indefinitely while we
await the promised development of future proposals.
(Jt. Exh. 42, pgs. 2-3).25
In this letter, Evans also stated Respondent would not provide the requested names of the
employees who complained about the Union representatives because it did not “wish to place them at risk
of any retaliation.” (Jt. Exh. 42). Evans provided no additional information or basis for this concern.
30
On August 22, 2017, Glaser emailed Evans regarding the information request, stating: “In light of
the hotel’s position that these complaints contribute to the reasons why it wishes to modify the status quo
policies regarding the access of union representatives to the hotel, we need to know, and I am hereby
formally requesting that you provide, the name of each bargaining unit member who allegedly
communicated these complaints to Mr. Bhattacharyya. We can only meaningfully address the employer’s 35
underlying concerns regarding access if we have a reasonable opportunity to do our own investigation
regarding the substance of the complaints that allegedly gave rise to those concerns.” (G.C. Exh. 6).
Respondent finally provided the Union with this information on March 20, 2019. (Jt. Exh. 1, pg. 6).
On October 5, 2017, Evans sent Glaser an email asking if the Union required any additional 40
information prior to bargaining. He also stated that Respondent’s plan was to begin negotiations with the
access issue, and that while Respondent had provided its proposal in March, it had not received any
“written” counterproposal from the Union. With respect to the other issues the Union mentioned, Evans
stated Respondent had not received “any formal proposals” from the Union, and he requested that if the
Union intended to make any proposals to provide them to Respondent prior to the next bargaining sessions45
to enable them to be more efficient with their time. But if that was not possible, Respondent would certainly
consider whatever the Union was able to present at the face-to-face bargaining session. (Jt. Exh. 43)
On October 9, 2017, Respondent discharged Bill Rosario, a Union supporter and member of its
bargaining committee, following an investigation into his response to discovering mold in two hotel 50
JD-07-20
15
guestrooms.21 A week later, on October 16, Glaser wrote Evans stating the Union was cancelling the
October 24 and 25 bargaining sessions because of the trauma Rosario’s discharge caused to the bargaining
committee and the unit employees. Glaser proposed bargaining through correspondence rather than in-
person sessions. To that end, he included the Union’s proposal on wages and stated it would be providing
proposals on health care, successorship, and room cleaning quotas. (Jt. Exh. 44). The Union’s wage 5
proposal sought across-the-board and specific wage increases, but they were no longer seeking parity with
wages paid at the Captain Cook hotel. (Tr. 245-246; 364-366). On the issue of Union access, Glaser wrote
as follows, referring to Respondent barring the interns from the hotel:
Regarding Union access to the hotel, the hotel’s recent decision to dictate to the Union who it 10
may and may not designate as its agents, for the purpose of entering the hotel and the employee
cafeteria to speak to bargaining unit members, has made it impossible for us to formulate a
meaningful bargaining position at this time. Once the legality of that decision has been
adjudicated by the NLRB, we will be in a position to know the “starting line” (a/k/a, the status
quo) from which those negotiations may proceed.15
(Jt. Exh. 44).
Thereafter, Glaser and Evans exchanged correspondence regarding the cancellation of the October
23 and 24 bargaining sessions, the status of negotiations, and the parties’ overall poor relationship. (Jt. 20
Exhs. 45-47). On access, Evans stated the Union’s explanation for why it could not make a counterproposal
did not hold water because the Union was unable to formulate a counterproposal for five months prior to
the dispute over the interns, and the proposed revisions do not address who can be a Union representative,
but rather where and when they can be in the hotel. (Jt. Exh. 45, pgs. 2-3). In a subsequent letter, Evans
indirectly responded to the Union’s wage proposal. He took issue with the Union’s characterization of 25
Respondent as “bad people” during their first bargaining session and the Union’s ongoing boycott, stating:
While we can meet and negotiate in good faith on issues such as increased wages, the reality
is that it [is] difficult to fathom increasing any benefits while the Union is engaged in a
vigorous campaign to financially harm the Hotel. Not only do we have to be conservative with 30
our expenditures in order to guard against customers heeding the Union’s call to boycott, it
simply is difficult to offer a reward to a party whom you view as perpetually stabbing you in
the back.
(Jt. Exh. 47, pg. 3). 35
On November 21, 2017, Evans sent Glaser a letter stating that based on the Union’s dilatory tactics,
Respondent planned to implement its revised Union access policy effective January 1, 2018, absent the
parties reaching an agreement by the end of the year. (Jt. Exh. 48). On November 27, 2017, Glaser
responded to Evans’ letter, which he characterized as “an ultimatum,” stating the Union believed that40
implementation of the access proposal, in the absence of an overall impasse, and at a time when the Hotel
has not yet cured its prior access-related unfair labor practices or restored the status quo ante, would be
unlawful. Nonetheless, Glaser stated the Union would meet to continue bargaining. (Jt. Exh. 49). The
parties eventually agreed to meet on December 20.
45
At the December 20 bargaining session, the Union provided Respondent with written proposals on
wages, health insurance, the 17-room cleaning requirements, successorship, and Union access. (Jt. Exh.
50). On wages, the Union proposed across-the-board increases and additional increases based on specific

21 The Regional Director issued a complaint over Rosario’s discharge. On November 14, 2019, following a hearing,
Administrative Law Judge Mara-Louise Anzalone issued her decision (JD(SF)-39-19), dismissing the complaint.
JD-07-20
16
jobs/work performed. On health insurance, the Union accepted the company’s health plan but proposed to
limit the employees’ costs and allow employees to bank hours worked in excess of 100 per month to
maintain coverage if their hours later dropped below the coverage threshold and/or allow employees to pay
a set amount per hour for each hour they fell below the threshold to maintain their coverage. On room
cleaning requirements, the Union agreed to 17 rooms per day but proposed paying housekeepers an 5
additional amount for each room cleaned beyond 15. On successorship, the Union proposed to modify the
language from the expired agreement to lessen the obligations imposed in the event of a sale or transfer of
the hotel. On access, the Union proposed to revise the language in Article IV to read as follows:
Business representatives or other authorized representatives of the Union shall be permitted to 10
visit the premises of the Employer at reasonable times during working hours provided such
representatives provide notice to the General Manager or his designee of their presence on the
premises. When visiting the Hotel, the Union representative shall sign in and out on a log
maintained by the Employer at the front desk. The Union representative shall print and sign
his name and record the time he entered and left the Hotel. When the Union representative 15
notifies the General Manager in advance of his desire to visit the Hotel, the General Manager
will make a room available for the Union representative to use. Meeting by the Union
representative with Hotel employees may occur in that room, or in other nonworking areas
(e.g., the employee cafeteria), at the Union’s discretion. Provided: that Union representatives
speaking with bargaining unit members in the employee cafeteria will not silence the room 20
in order to make announcements to union-represented employees or otherwise engage in
activities that unnecessarily interfere with the ability of non-represented employees and
those represented employees who do not wish to listen to Union announcements or messages
from socializing or enjoying their time in the cafeteria without such interruption.
Provided further, that Union representatives will not take airborne or other samples from the 25
Hotel, enter the Hotel’s Mechanical Rooms, hold events with the media or elected officials
inside the hotel, hold rallies or demonstrations inside the hotel, or place Union surveys or
flyers under room doors occupied by guests, without first coordinating such activities with the
Employer.
30
(Jt. Exh. 50, pg. 6).
Glaser and Evans exchanged letters summarizing the December 20 bargaining session and their
respective positions on the status of negotiations. Glaser’s letter, dated December 30, 2017, began by
stating how the Union’s proposals demonstrated significant movement on the key issues and broke any 35
impasse that may have existed. (Jt. Exh. 51). And despite this movement, the Hotel had no response to the
Union’s proposals on health insurance, room attendant cleaning quotas, or successorship. On the issue of
Union access, Glaser stated the Hotel was unwilling to alter the portion of its proposal that barred Union
representatives from the employee cafeteria. “You were absolutely clear about this: the hotel will not yield
on this point.” (Jt. Exh. 51, pg. 3). As for wages, the Hotel stated it was unable to respond with a 40
counterproposal because it could not predict its future profitability in light of the Union’s continuing boycott
activity. The Hotel maintained this position even after the Union pointed out the boycott activity would
cease once a new contract was reached. Glaser concluded his letter by asking Evans to reconsider the
Hotel’s positions, consider the Union’s proposals seriously, and communicate meaningful counterproposals
on each of these issues (as well as any other issues) at its earliest convenience. (Jt. Exh. 51). 45
On January 5, 2018, Evans wrote a letter responding to Glaser in which he addressed each of the
Union’s proposals and the Hotel’s rejection of those proposals.
…. Your health care proposal allows for a non-union trust plan which I understand is an issue 50
that is very significant to the Union, but which in fact simply reflects the current reality that
JD-07-20
17
has been in place for several years. While allowing the plan to be controlled by the Hotel, you
have proposed economic requirements that would come very close to mirroring what a union-
based trust plan would provide. Given the precarious state of health insurance nationally, the
Hotel is not willing at this time to alter its existing coverage. We will certainly be looking for
opportunities going forward that will make such coverage more affordable for both the Hotel 5
and its employees. Should such an opportunity arise, we will, at that time, make a proposal to
change the current plan.
Similarly, your proposal for changing the existing 17-room requirement is not acceptable to
the Hotel. The Hotel does appreciate the diplomatic manner in which you sought to permit a 10
17-room daily requirement while at the same time keeping faith with the Union's normal 15-
room limitation. The manner in which this compromise was achieved makes it essentially a
wage issue (with some exceptions) for the room attendants and would be preferably addressed
in setting the wage rate for the room attendants that would include the expectation of the 17-
room requirement.15
…. Given the difficult relationship that exists between the Union and the Hotel, the Hotel is
not willing at this time to limit potential buyers by including the [proposed] successorship
language. The Hotel is willing to agree to provide notice to the Union in the event of a sale
but is not willing to mandate to the buyer the assumption of this Agreement….20
Similarly, we must reject your wage proposal. As I stated during our negotiation session it is
very difficult to provide increased wages or benefits given the current animosity-laden
relationship. As I previously mentioned, I was hopeful that face-to-face dialogue might
improve the adversarial atmosphere and create greater trust as a building block for a mutual 25
agreement. Unfortunately, the negotiations have failed in that respect…. It is difficult to reach
agreement and provide additional benefits to the very people who are condemning you as
engaging in bad behavior. Accordingly, while we are always willing to meet and negotiate in
good faith the terms and conditions of the Hotel employees, we are not willing to change our
considered positions in the absence of a respectful and good faith partner.30
Finally, with respect to the access issue, as stated during our meeting, the Union’s
counterproposal that continues to allow the point of contact to be the cafeteria is not acceptable
to the Hotel. From the outset the Hotel has been very frank that its chief goal in making its
proposal was to end the friction that exists in the sole place in the Hotel for both management 35
and Union employees to enjoy a break. By having the Union representatives meet with
employees in the cafeteria management employees are placed in a position where they have
to alter their break periods or engage in other conduct to avoid the perception that they are
engaging in surveillance. Moreover, because this issue was sparked by an employee complaint
about the conduct of Union representatives in the cafeteria, the Hotel believes it would be best 40
if a specifically designated meeting room was made available for the Union representatives to
meet with those employees who wish to meet with the Union representatives and not involve
others who may simply want to enjoy their break time.
We have indicated that we were willing to negotiate the times when the Union representatives 45
could be present, the days on which they could be present, the manner in which they needed
to alert the Hotel to their presence and other similar logistical issues surround access to the
Hotel. We also physically showed you the room that the Hotel has set aside for the Union and
invited any comments you might have about its adequacy. Because the Union has been
focused entirely on keeping the access point in the cafeteria, it has not made any proposals in 50
nearly a year regarding any of those other logistical issues. Accordingly, we are unaware of
JD-07-20
18
any preferences the Union may have regarding hours of visits, days of visits or the manner of
checking in and as a consequence we cannot provide any counter-proposals that would address
any of those items. We can only assume that because the Union has not presented any
counterproposals involving access at any location other than the cafeteria, the Union does not
have any such proposals and its sole proposal is to maintain access to the cafeteria.5
(Jt. Exh. 52).
Evans concluded his January 5 letter by stating the parties were at impasse, as the Hotel was
unwilling to continue allowing access to the employee cafeteria and the Union made no counterproposals 10
that did not include maintaining such access. As a result, the Hotel intended to implement its proposed
changes to Article IV beginning January 15, 2018. (Jt. Exh. 52). The revised Union access policy was
implemented on January 12, 2018. (Jt. Exh. 53).22
Glaser testified the Union did not request further bargaining based on Evans’ January 5 letter, 15
because the Union read the letter as stating Respondent was not going to bargain with the Union and had
declared the Union were not good-faith bargainers. (Tr. 264).
Thereafter, Union representatives continued to visit the employee cafeteria without complying with
the procedures set forth in the revised access policy. Management confronted the representatives about 20
their non-compliance and then escorted them off the property. On January 22, 2018, General Manager
Steve Rader wrote Marvin Jones a letter advising him that Union representatives were not complying with
the implemented access policy, and if they continued it would be viewed as trespass and the police would
be called. (Jt. Exh. 54). Three days later, Jones responded in a letter to Rader that the implementation of
the revised access policy was not lawful and, until so directed by the Board or federal court, the Union did 25
not intend to comply. (Jt. Exh. 55).

F. Contacting the Anchorage Police to Report Trespassing by Union Representatives
On January 31, 2018, at around 10 a.m., Dayra Valades and another representative went to the30
Hotel and spoke to employees in the employee cafeteria. Later that afternoon, two Anchorage Police
Department officers appeared at the Union’s office and spoke to Valades, asking her if she had been at the
hotel earlier that day. The officers explained they had received a trespass call, and that they had been given
a letter claiming there was an agreement stating the Union would not be at the hotel.23 Valades provided
the officers with a copy of Jones’s January 25, 2018 letter to Rader challenging the legality of Respondent’s 35
implementation of the revised Union access policy. The officers read the letter and handed Valades a card
with the police report number and date written on the back. (G.C. Exh. 7). No further action was taken.
On April 19, 2018, Jones informed Union employees during a quarterly meeting about the
Anchorage Police Department visiting the Union hall regarding the alleged trespass call. (Tr. 823-824). 40
G. Postings to Employees
In June 2018, the Union posted the following, in English, on its bulletin board outside of the
employee cafeteria:45
Brothers and Sisters,

22 The record does not reflect why Respondent implemented the revised access policy three days early.
23 At the hearing, Rader testified he contacted the police after the Union representatives repeatedly failed to comply
with the revised access policy. (Tr. 780-782).
JD-07-20
19
For those who are not aware, you have been in a labor dispute with your employer for the last
9 years. This dispute occurred because your employer wanted to take away your wage
increases, health insurance, pension, work load, and job security. Obviously, this is a
horrendous act by your employer. We've pushed back and have been able to maintain the
majority of the benefits listed above. The only reason we've been successful, is because many 5
of you have been courageous enough to stand up for what you deserve. Columbia Sussex will
not give you these benefits unless all of us together demand that they give them to you.
Because you have representation is the sole reason you keep the liberties you have working at
the Hilton Anchorage. It is for certain that without the Union the Hilton will take all these
benefits away from you. Workers without a Union means more money in the employer's 10
pocket and less in yours.
Some of you are saying that the fight has gone on too long, but we say that it’s never too long
to fight for what is right. Those who tell you to stop fighting are not looking at what's in your
best interest. They want to discourage you from getting involved, they want you to quit 15
because they think you're tired, they think you're weak, they don't think you know better, but
you're not all what they think, and that's why you still have a pension, holiday pay, paid lunch
break, job security, two 10 minutes paid breaks, representation, seniority, and many other
benefits. Thousands of members over the last 75 years through Local 878 have fought for the
rights and benefits you enjoy today. We owe those who come after us the same opportunity 20
that we have and more. The employer makes a fortune off the backs of the workers, you give
1/3 of your life to the employer, and you should be provided with at least the basic necessities.
As we move forward our motto has always been “one day longer” and when we say it, we
mean it, denying the rights for some is denying the rights for all. We are fighting for wages, 25
health care, job security, and all the benefits that your Union stands for. For those who think
things are bad just think about how bad it would be if you weren't a member of Local 878!
ALL the rights you have today would be gone
DON'T BELIEVE THE LIES...30
We are fighting for, what you deserve. Support the brothers and sisters who stand on the picket
line for a better life, not people who tell you to quit and won't be there when all that you have
is gone.
35
UNITED WE STAND, DIVIDED WE BEG!!!
(Jt. Exh. 56).
Later in June 2018, General Manager Steve Rader prepared and posted the following letter in
response to the Union’s letter. The letter was posted, in English and Spanish, on a company bulletin board 40
by the time clock near the human resources office:
Dear Valued Associates,
As many of you are aware, it is not often that we send out letters to our employees regard our
involvement with the union here at the Hilton Anchorage. However, there are times when we 45
believe it is important to speak out and share our view point when the union is making
outlandish and false claims against Columbia Sussex.
When Columbia Sussex purchased the Hilton Hotel property almost 10 years ago, this property
had union representation with UNITE HERE! At the time, this was the ONLY Hotel in our 50
JD-07-20
20
portfolio which had a union and we have respected the [union’s] position as our [employees’]
representative for the purposes of collective bargaining.
Our company philosophy is clear, we want to have a direct working relationship with our
employees to solve issues and do not believe having a 3rd party labor union involved is5
necessary. We are not anti-union, we are simply pro employee.
We were recently made aware of a posting from the UNITE HERE! Local 878 in which they
claim if you were not a member of the union, you could lose your Pension, Holiday Pay, Paid
Lunch Break, Job Security, Two 10 Minute Breaks, Representation, Seniority and of Benefits 10
(see attachment). This statement is simply not true and frankly is one of the most dishonest
statements we can imagine.
Employees at each of our hotels enjoy each of these benefits and more, and most without a
union presence. The idea that you would lose any of these items is simply not true. Importantly, 15
the notion that you have these items only because you have union representation is also not
true. Again, employees in our other properties have these benefits and more and most do not
have union representation. We believe we can achieve more by working together versus
having a 3rd party divide us as can be seen in our other locations. Our intentions should clear
that with the investment the company is making with our renovations, Columbia Sussex will 20
be a contributing member of our Anchorage community for many years to come.
We care a great deal for all associates and our managers welcome you to come to us with any
concerns you may have for solutions that are satisfactory to you. In spite of the fact that most
businesses in Anchorage are downsizing and cutting out employee benefits such as employee 25
events, associate luncheons, associate rallies, and other events throughout the summer and the
year.
We appreciate the hard work you do and want the work place to be a team environment which
includes fun and camaraderie in addition to the work which we accomplish together. 30
(Jt. Exh. 57).24
LEGAL ANALYSIS
A. Surveillance of Employee Cafeteria35
Paragraph 6(a) of the final amended consolidated complaint alleges Respondent violated Section
8(a)(1) of the Act since February 2017, when it engaged in unlawful surveillance by increasing the number

24 Respondent also had posted somewhere on this same bulletin board its “Open Door Policy,” which states:
At CSM, we have created an environment in which open communication between associates and
management can, and does, exist. We encourage you to communicate your ideas, suggestions, and
problems to your department manager on a daily basis. When people work together, we know that
misunderstandings may occur. If such a situation or problem should arise, we encourage you to talk
first with your immediate supervisor and given him or her an opportunity to work it out with you. If
your compliant involves your supervisor, or you are not satisfied with your supervisor’s response, or if
for any reason you do not wish to bring the problem to your supervisor’s attention, you may present
your concern to your department manager, General Manager, Corporate Human Resources, of the
[W]histle Blower Hotline.
The company’s policy is to encourage all associates to raise their ideas or concerns either individually
or whenever management meets with associates as a group.
(R. Exh. 42).
JD-07-20
21
of supervisors and/or managers in the employee cafeteria during the timeframe when the Union’s
representatives typically were there. I do not find merit to this allegation.
Section 8(a)(1) states it is a violation for an employer to interfere with, restrain or coerce employees
in the exercise of their Section 7 rights. The Board has held that routine observation of employees engaged 5
in open Section 7 activity on company property does not constitute unlawful surveillance. Aladdin Gaming,
LLC., 345 NLRB 585, 586 (2005). An employer violates Section 8(a)(1) when it surveils employees by
observing them in a way that is “out of the ordinary” and thereby coercive. Id. Indicia of coerciveness
include the duration of the observation, the employer’s distance from its employees while observing them,
and whether the employer engaged in other coercive behavior during its observation. Id. Ultimately, the 10
test is an objective one and involves a determination as to whether the employer’s conduct, under the totality
of the circumstances, would reasonably tend to interfere with, restrain, or coerce employees in the exercise
of their rights guaranteed under Section 7. Sage Dining Services, Inc., 312 NLRB 845, 856 (1993); Brown
Transportation Corp., 294 NLRB 969, 971-972 (1989).
15
In Aladdin Gaming, two employees solicited union authorization cards in the employee dining
room that managers and employees used for meal breaks. As the employees talked with others about the
union, a manager walked over to their table, stood by silently for 2 minutes, and then spent 8 minutes telling
them management’s perspective on unionization. Two days later, a different manager engaged in
essentially the same conduct. The Board found no violation, holding that the employer did not act “out of 20
the ordinary” because its managers routinely were in the dining room and their observation of employees
was unaccompanied by any coercive conduct, as their statements about unions were protected under Section
8(c) of the Act. 345 NLRB at 586-587.25
The General Counsel argues it was out of the ordinary for multiple managers to be in the employee 25
cafeteria when the Union representatives typically were there, and that changed starting on February 7,
2017, when management’s presence went from only 1 to 2 (Daniel McClintock and Ivan Tellis), to around
3 to 6. The General Counsel cites to Sheraton Anchorage, 363 NLRB No. 6 (2015), for support as to how
this increase violated the Act. In Sheraton Anchorage, managers increased their visits to the employee
cafeteria when the union representatives typically were there speaking about union issues, at a time when30
employees were circulating both a decertification petition and a rival pro-union petition for signatures. The
supervising chef who previously never went to the cafeteria during the day came and stood with his arms
folded for up to 15 minutes as he monitored the employees; the housekeeping manager and the human
resources director who seldom came to the cafeteria both began making multiple visits a week and staying
for 30 minutes each time; and the engineering chief began coming to the cafeteria and talking with 35
employees for 60-90 minutes a day, or for as long as the union representative(s) remained in the cafeteria.

25 In Aladdin Gaming, LLC., the Board distinguished that case from others in which unlawful surveillance was found
based on the coercive nature of the employers’ conduct, including Hawthorn Co., 166 NLRB 251 (1967), enfd. in
pertinent part 404 F.2d 1205 (8th Cir. 1969) (foremen began sitting at employee tables in the cafeteria, instead of at
the foremen's table, during employees’ coffee breaks, to monitor conversations); Elano Corp., 216 NLRB 691 (1975)
(foremen were directed to eat in the lunchroom with employees when previously allowed to eat in a control room
overlooking the plant floor); Oakwood Hospital, 305 NLRB 680 (1991), enf. denied 983 F.2d 698 (6th Cir.1993)
(supervisors and managers instructed to remain in close proximity to a union representative while he was in the
cafeteria, take down names of employees who met with him, and take notes during employees’ conversations with
him); Liberty House Nursing Homes, 245 NLRB 1194 (1979) (supervisors departed from the practice of taking breaks
in a private dining room and, instead, deliberately mingled with employees in the dining area used by the latter during
their breaks and lunch periods, including a supervisor who followed two employees who left the dining area, and on
another occasion followed two employees who had changed tables because of the presence of supervisors, to talk with
them about the union organizing effort); and Teksid Aluminum Foundry, 311 NLRB 711 (1993) (supervisors shadowed
employees involved in union activities to break room, in and out of lunch room, and out to the parking lot, observing
them for several minutes, over multiple days).
JD-07-20
22
The administrative law judge held this “significantly increased” presence of management was out of the
ordinary and thereby coercive, in violation of Section 8(a)(1).26
Here, unlike in Sheraton Anchorage, the evidence does not establish that management’s presence
significantly increased. As stated, Soham Bhattacharyya, Steve Rader, and Brandon Donnelly, along with 5
McClintock and Tellis, regularly visited the cafeteria when the Union representatives were there, both
before and after February 2017. The General Counsel asserts Bhattacharyya, Rader, and Donnelly could
not have been in the cafeteria at that time because they attended the morning stand-up meetings, which,
prior to January 2017, began at 10 a.m. However, those meetings lasted 25-30 minutes, which allowed
managers enough time to get to the cafeteria to eat while the Union representatives were still there10
interacting with employees.
The General Counsel next argues that management’s conduct while in the cafeteria was out of the
ordinary and coercive. The first examples cited are the February 2017 management meetings. Respondent
held 1 stand-up meeting and 1 or 2 meetings to recognize employees for their performance. While it may 15
have been unusual for management to hold stand-up meetings in the cafeteria, Bhattacharyya testified that
when he took over as General Manager in January 2017, he began to rotate where these meetings were held,
and it was not unusual for him to hold them at various locations throughout the hotel. Nor was it unusual
for management to hold meetings to recognize employees for their performance. Moreover, there is no
evidence about what the managers and supervisors attending these meetings said or did; there is no evidence 20
they monitored conversations or activities, made any statements, or engaged in any coercive behavior.
The General Counsel next cites to the instance in May when Bhattacharyya was observed talking
with a unit employee in the large room of the cafeteria. There is no evidence about what was said or the
length of the conversation. It was not uncommon for Bhattacharyya to be in the cafeteria, nor for him to 25
briefly interact with employees while there.
Finally, the General Counsel cites to the two occasions in May when McClintock and
Bhattacharyya allegedly followed Esparza as he moved throughout the cafeteria talking with employees.
As for McClintock, Esparza testified the two were both in the large room, and at some point, after Esparza 30
left to go to the small room, McClintock entered the small room with a plate of food. As stated, there is no
evidence of what, if anything, McClintock said or did once he entered the small room. Nor is there evidence
regarding where he sat in proximity to Esparza and the employees, or how long he remained there.
As for Bhattacharyya, Esparza was distributing flyers to employees in the large room about an 35
upcoming Union rally, and Bhattacharyya asked if he could attend the rally. Esparza told him he could.
Following that exchange, Esparza went into the small room to talk with employees, including a group of
employees eating pizza. Bhattacharyya later entered the small room. After Esparza walked away,
Bhattacharyya asked the employee if he could have some of their pizza, telling them he didn’t care if
Esparza made fun of him. While Bhattacharyya’s conduct may have been unusual, his interactions with 40
Esparza and the employees were brief and there is no evidence he monitored the employees, made any other
statements, or engaged in any coercive behavior.
Overall, based on the limited evidence presented, the General Counsel failed to establish that
employees reasonably would believe that management was in the cafeteria for the purpose of surveilling45
their protected activity. As stated, members of management regularly visited the cafeteria before and after
February 2017, and they did so for the same reasons as other employees, to eat lunch or to take a break.
Like other employees, the managers and supervisors greeted and occasionally engaged in conversation with

26 In the absence of exceptions, the Board adopted the judge’s finding of unlawful surveillance. Sheraton Anchorage,
363 NLRB No. 6, slip op. at 1 fn. 2. As such, the judge’s decision only has persuasive value.
JD-07-20
23
employees while there. Unlike in Aladdin Gaming, management did not stand by listening to the
employees’ protected conversations; nor did it make statements or offer opinions about their protected
activity. Accordingly, I dismiss the Section 8(a)(1) unlawful surveillance allegation.
B. Change in Established Past Practice5
Paragraph 6 of the final amended consolidated complaint also alleges the increased presence of
management in the cafeteria constituted a unilateral change in past practice over which Respondent failed
to provide the Union with prior notice and an opportunity to bargain, in violation of Section 8(a)(5) of the
Act. In her post-hearing brief, Counsel for General Counsel alleges the change was that unit employees 10
went from being able to freely interact with their Union representatives during their lunch breaks, to only
being able to interact with them in the presence of management. I do not find merit to this allegation.
Under the unilateral change doctrine, an employer’s duty to bargain under Section 8(a)(5) includes
the obligation to refrain from changing its employees’ terms and conditions of employment without first 15
bargaining to impasse with the employees’ bargaining representative concerning the contemplated changes.
NLRB v. Katz, 369 U.S. 736 (1962). An employer’s regular and longstanding practices that are neither
random nor intermittent become terms and conditions of employment even if those practices are not
required by a collective-bargaining agreement. The party asserting the existence of a past practice bears the
burden of proving the practice occurred with such regularity and frequency that employees could reasonably 20
expect the practice to continue or reoccur on a regular and consistent basis. Raytheon Network Centric
Systems, 365 NLRB No. 161, slip op. at 5, 8, 16, 20 (2017); Howard Industries, Inc., 365 NLRB No. 4, slip
op. at 3-4 (2016).
In this case, the Union had a long-standing practice of regularly visiting the employee cafeteria25
between 10 a.m. and 11 a.m., but not at the exclusion of management. As stated, multiple managers were
regularly present, both before and after February 2017. Esparza was not aware of “any sort of agreement”
between Respondent and the Union that management would refrain from entering the employee cafeteria,
or that Respondent would notify the Union before holding a meeting in the cafeteria when the Union
representatives were present. (Tr. 223). Under these circumstances, there was no past practice or30
reasonable expectation that the Union would be able to meet with employees in the cafeteria at the exclusion
of management. Accordingly, I also dismiss the Section 8(a)(5) unilateral change allegation.
C. Revised Access Proposal
35
Paragraph 10 of the final amended consolidated complaint alleges Respondent violated Section
8(a)(4) and (1) of the Act when it proposed revising the Union access policy on March 2, 2017, in retaliation
for the Union filing its original unfair labor practice charge in Case 19-CA-193656 about the increased
management presence in the cafeteria when the Union representatives were there.
40
Counsel for General Counsel moved to add this allegation at the conclusion of her case-in-chief,
which I granted over Respondent’s objections. I reaffirm that ruling now. Section 102.17 of the Board’s
Rules and Regulations authorizes the administrative law judge to grant complaint amendments “upon such
terms as may be deemed just” during or after the hearing until the case has been transferred to the Board.
In Rogan Brothers Sanitation, Inc., 362 NLRB 547, 549 fn. 8 (2015), the Board stated the judge should 45
consider the following when permitting an amendment to the complaint during the hearing: (1) whether
there was surprise or lack of notice, (2) whether there was a valid excuse for the delay in moving to amend,
and (3) whether the matter was fully litigated. In applying these factors, I found the General Counsel
notified the other parties of the intent to amend shortly after Respondent introduced bargaining notes from
their April 21, 2017 session. The notes show that Respondent referred to the Union’s charge when 50
discussing the reasons why it was making its proposal to change the access policy. The matter was fully
JD-07-20
24
litigated because Respondent was able to present evidence during its case-in-chief regarding as to its
motivation for making that proposal. Respondent did not raise any further argument regarding the
amendment in its post-hearing brief.
Respondent’s final answer asserts this allegation is untimely under Section 10(b) of the Act.27 5
Section 10(b) provides, in pertinent part, that “no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge with the Board.” Thus, an unfair labor
practice charge filed more than 6 months after the alleged unfair labor practice took place is untimely. The
10(b) period begins to run when a party has clear and unequivocal notice of an alleged violation of the Act.
Notice can be actual or constructive. Moeller Bros. Body Shop, 306 NLRB 191, 192-193 (1992). The 10
Board, however, has held that “the timely filing of a charge tolls the time limitation of Section 10(b) as to
matters subsequently alleged in an amended charge which are similar to, and arise out of the same course
of conduct, as those alleged in the timely filed charge. Amended charges containing such allegations, if
filed outside the 6-month 10(b) period, are deemed, for 10(b) purposes, to relate back to the original
charge.” Pankratz Forest Industries, 269 NLRB 33, 36-37 (1984), enfd. mem. sub nom. 762 F.2d 1018 (9th 15
Cir. 1985)).
The Union had clear and unequivocal notice as of the April 21 bargaining session that Respondent
wanted to revise the Union access policy, in part, because of the allegations the Union raised in its charge
alleging Respondent unilaterally changed the status quo by holding meetings and having management 20
present in the cafeteria at times when the Union representatives were there talking with employees.
Therefore, the Section 8(a)(4) allegation, which was first raised on October 30, 2019, is well outside the
Section 10(b) period.
The General Counsel nevertheless contends the allegation was timely because it was “closely 25
related” to the allegations in the original and amended charge in Case 19-CA-193656. In determining
whether an amended charge relates back to an earlier charge for 10(b) purposes, the Board applies the test
set forth in Redd-I, Inc., 290 NLRB 1115, 1118 (1988). In Redd-I, Inc., the Board stated:
In applying the traditional “closely related” test in this case, we will look at the following 30
factors. First, we shall look at whether the otherwise untimely allegations are of the same
class as the violations alleged in the pending timely charge. This means that the allegations
must all involve the same legal theory and usually the same section of the Act... Second, we
shall look at whether the otherwise untimely allegations arise from the same factual situation
or sequence of events as the allegations in the pending timely charge. This means that the 35
allegations must involve similar conduct, usually during the same time period with a similar
object... Finally, we may look at whether a respondent would raise the same or similar defenses
to both allegations, and thus whether a reasonable respondent would have preserved similar
evidence and prepared a similar case in defending against the otherwise untimely allegations
as it would in defending against the allegations in the timely pending charge.40
Id. at 1118.

27 Respondent’s final amended answer raises as an affirmative defense that certain allegations are untimely under
Section 10(b), but it does not specify which allegations. See United Government Security Officers of America
International, 367 NLRB No. 5, slip op. at 1 fn. 1 (2018) (respondent must specify the allegation it asserts is untimely
under Section 10(b); a mere boilerplate or catchall provision in the answer is insufficient). However, when Counsel
for General Counsel orally moved to amend in this Section 8(a)(4) allegation, Respondent’s counsel orally denied the
allegation, in part, as being untimely. (Tr. 541-542). I interpret Respondent’s oral and written responses together as
properly asserting this allegation as untimely under Section 10(b).
JD-07-20
25
In Carney Hospital, 350 NLRB 627, 630 (2007), the Board held the second prong “is not shown
simply because two events occurred close in time, during the same organizing campaign or in response to
a campaign. Mere chronological coincidence does not warrant the implication that all challenged employer
actions are related to one another as part of a planned response to that campaign.” The Board further held
the second prong of the Redd-I test is satisfied “where the two sets of allegations demonstrate similar 5
conduct, usually within the same time period with a similar object, or there is a causal nexus between the
allegations and they are part of a chain or progression of events, or they are part of an overall plan to
undermine union activity.” Id. (internal quotations and citations omitted).
In applying the closely related test, I find the first factor--same class of violations--is not met. The 10
charges in Case 19-CA-193656 allege Respondent unilaterally changed its past practice without bargaining
with the Union, in violation of Section 8(a)(5) of the Act, and engaged in unlawful surveillance, in violation
of Section 8(a)(1) of the Act. These allegations involve different provisions of the Act and different legal
theories than the added Section 8(a)(4) retaliation allegation. Section 8(a)(4) provides it is an unfair labor
practice for an employer “to discharge or otherwise discriminate against an employee because he has filed 15
charges or given testimony under this Act.” To prove an 8(a)(4) violation, there must be proof of unlawful
motivation and animus. See American Gardens Mgmt. Co., 338 NLRB 644, 645 (2002). Motive is
irrelevant to proving unilateral change or surveillance allegations.
The second factor--same factual situation or sequence of events--appears to be met. Respondent 20
began holding management meetings in the cafeteria starting on around February 7, 2017. The Union filed
the original charge on February 22. Eight days later, Respondent notified the Union it wanted to revise the
Union access policy to limit where and when the Union representatives could access the hotel. As stated,
the bargaining notes from the April 21 session show Respondent sought to revise the policy, in part, to
address the claims the Union raised in its charge. Although the two sets of allegations do not involve similar 25
conduct and are not necessarily within the same time period, there is a nexus between the filing of the
charge and the subsequent proposal to change the policy to address the claims raised in the charge.
The third factor--same defenses--is not met. As stated, proving an 8(a)(4) violation requires proof
of unlawful motivation and animus. If established, the employer defends by proving that it would have 30
taken the same adverse action in the absence of the protected activity. American Gardens Mgmt. Co., supra.
There is no comparable defense to unilateral change or surveillance allegations.
For these reasons, I dismiss the 8(a)(4) allegation as untimely under Section 10(b).28
35

28 Assuming arguendo the allegation had been timely, the General Counsel failed to establish that Respondent was
motivated by animus in preparing and submitting the revised access policy. The General Counsel relies on the timing
of the announced change eight days after the Union filed the charge to prove animus. Bhattacharyya, however, began
making the proposed revisions to the access policy, with the assistance of counsel, in late January and early to mid-
February 2017, because he wanted greater formality and consistency with how, when, and where the Union
representatives accessed the hotel. He waited until March to submit the proposal because Respondent was attempting
at the time to secure refinancing, and he was concerned the Union would try to interfere with that process if it knew
the Hotel wanted to revise the access policy. Considering the Union’s other attempts to exert economic pressure on
Respondent, this concern was not unreasonable. The General Counsel also cites to the statements made by
Respondent’s bargaining representatives during the April 21 bargaining session as proof the proposed changes were
in retaliation for the Union filing the charge. However, the statements show Respondent wanted to bargain over the
proposed policy as a means of addressing the Union’s stated concerns of having managers in the cafeteria, not as
demonstrating animus for the Union raising those concerns in the charge. Based on the foregoing, the General Counsel
failed to prove the proposed revisions were in retaliation for the Union’s Board activity.
JD-07-20
26
D. Responding to Information Requests
Paragraph 9 of the final amended consolidated complaint alleges, as amended at hearing, that
Respondent violated Section 8(a)(5) of the Act when from January 3, 2017, to about June 2, 2017, it failed
or refused to provide the Union with the requested schedules, time cards, and payroll records for bussers 5
working at the hotel’s Hooper Bay restaurant; and from about August 17 and 22, 2017, to March 19, 2019,
failed or refused to provide the Union with the names of the employees who complained the Union was
forcing them to agree to voice recording. I find merit to these allegations, as amended.
Under Section 8(a)(5) of the Act, the employer has a duty to provide the union with requested 10
information that is relevant and necessary to its representational duties. NLRB v. Acme Industrial Co., 385
U.S. 432, 435-436 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); Detroit Edison Co. v. NLRB, 440
U.S. 301 (1979). In general, information relating to bargaining unit employees and their wages, hours, and
terms and conditions of employment is presumptively relevant and must be furnished. North Star Steel
Co., 347 NLRB 1364 (2006); Bryant & Stratton Business Institute, 323 NLRB 410 (1997). It is the 15
employer’s burden to rebut that presumption. A-1 Door & Building Solutions, 356 NLRB 499, 500 (2011);
and Southern California Gas Co., 344 NLRB 231, 235 (2005).
The Board has held an unreasonable delay in furnishing relevant information is as much a violation
of Section 8(a)(5) as failing or refusing to provide the information. PAE Aviation and Technical Services, 20
LLC., 366 NLRB No. 95, slip op. at 3 (2018). It is an employer’s duty to furnish relevant information as
promptly as possible, given the circumstances, as a union is entitled to the information at the time the
information request is made. Id. In determining whether a party has failed to produce information in a
timely manner, the Board considers the totality of the circumstances, including “the nature of the
information sought (including whether the requested information is time sensitive); the difficulty in 25
obtaining it (including the complexity and extent of the requested information); the amount of time the
party takes to provide it; the reasons for the delay in providing it; and whether the party contemporaneously
communicates these reasons to the requesting party.” General Drivers, Warehousemen & Helpers Local
Union No. 89, 365 NLRB No. 115, slip op. at 2 (2017). This determination is an objective one; the focus
is not on “whether the employer delayed in bad faith ... but on whether it supplied the requested information 30
in a reasonable time.” Management & Training Corp., 366 NLRB No. 134, slip op. at 3 (2018).
Although there is not a per se rule for what constitutes an unreasonable delay, the Board has found
delays from 2-16 weeks to be unreasonable. See Capitol Steel & Iron Co., 317 NLRB 809 (1995) (2 weeks
unreasonable); Aeolian Corp., 247 NLRB 1231, 1245 (1980) (3 weeks unreasonable); Postal Service, 308 35
NLRB 547, 551 (1992) (4 weeks unreasonable); Postal Service, 332 NLRB 635 (2000) (5 weeks
unreasonable); Linwood Care Center, 367 NLRB No. 14, slip op. at 5 (2018) (6 weeks unreasonable);
Woodland Clinic, 331 NLRB 735, 737 (2000) (7 weeks unreasonable); and Regency Service Carts, 345
NLRB 1286 (2005) (16 weeks unreasonable).
40
The Union articulated how the requested information at issue is both relevant and necessary to its
representational duties. In the January 3, 2017 email request for information on the bussers, Marvin Jones
explained to Soham Bhattacharyya that the Union was requesting the information to investigate whether
Respondent had violated the terms of the agreement by reducing the bussers’ hours and/or by reassigning
their duties to wait staff. Similarly, in David Glaser’s August 22, 2017 email to Bill Evans requesting the 45
employee complaints, he explained the Union needed the information considering that these complaints
were part of the reason why Respondent wanted to modify the Union access policy.
Respondent argues that Bhattacharyya’s delay in providing Jones with the bussers’ information
was inadvertent, and that it should not be found to have violated the Act in light of its history of promptly 50
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27
responding to the Union’s other information requests, and because the Union failed to follow-up regarding
its request before filing the amended charge.29 I reject these arguments. As stated, the issue is not whether
the employer delayed in providing the information in bad faith, but rather whether it supplied the
information in a reasonable time, and there is no obligation for a union to make a subsequent request for
information when the initial request was received and the information sought was clear. Moreover, even if 5
Bhattacharyya’s initial delay in providing the information was inadvertent, that does not explain why, after
the Union amended its charge on April 20, 2017 to specifically allege Respondent had failed or refused to
provide the requested information, Respondent waited 7 additional weeks to provide it to the Union.
Respondent raises three arguments for its delay in providing the names of employees who 10
complained the Union was forcing them to agree to voice recording. First, it argues the Union already
possessed the information at issue because it knew which employees Esparza approached about getting a
voice-recorded statement, and Respondent had no obligation to provide information already in the Union’s
possession. While the Union likely had knowledge of which employees Esparza approached, the request
was for the names of the employees who “complained” to management that the Union “was forcing them”15
to agree to voice recording, and there is no evidence the Union had that information.
Second, Respondent argues the Union’s request was not made in good faith because it waited
several months before requesting the information and it was merely an attempt to delay an agreement on
the Union access policy. “[T]he presumption is that the union acts in good faith when it requests information 20
from an employer until the contrary is shown.” Hawkins Construction Co., 285 NLRB 1313, 1314 (1987),
enf. denied on other grounds 857 F.2d 1224 (8th Cir. 1988); International Paper Co., 319 NLRB 1253,
1266 (1995), enf. denied on other grounds 115 F.3d 1045 (D.C. Cir. 1997). The requirement of good faith
“is met if at least one reason for the demand can be justified.” Hawkins Construction, supra at 1314.
Respondent argues Bhattacharyya informed the Union of the employee complaints about the voice-25
recording on March 3, but the Union did not request the information until five months later, in August. The
August 3 and 4 bargaining sessions were the first time Respondent raised the employee complaints as one
of the reasons it was proposing to revise the Union access policy, and Glaser orally requested the
information during the August 4 bargaining session and then followed that up with written requests.
Respondent presented no evidence this request was for any other purpose than to bargain over the policy. 30
Third, Respondent argues it withheld the information to shield its employees from possible
retaliation. In American Baptist Homes of the West, 362 NLRB 1135 (2015), enfd. in relevant part 858
F.3d 612 (D.C. Cir. 2017), the Board held that when an employer argues it has a confidentiality interest in
protecting requested information from disclosure, it shall apply the balancing test set forth in Detroit Edison 35
v. NLRB, supra, in which the Board balances the union’s need for the relevant information against any
legitimate and substantial confidentiality interests established by the employer. American Baptist Homes,
362 NLRB at 1137. Establishing a legitimate and substantial confidentiality interest requires more than a
generalized desire to protect the integrity of investigations. Id. An employer must determine whether any
given witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being 40
fabricated, or there is a need to prevent a coverup. If such a showing is made, the Board weighs the interest
in confidentiality against the need for the information. Id.
Here, Respondent has presented no evidence or argument to explain why its confidentiality interests
should prevail over the Union’s need for the requested information. In his August 17 letter, Evans stated 45
Respondent would not provide the names of the complaining employees because it did not “wish to place
them at risk of any retaliation.” Evans provided no basis for this stated concern. There is no evidence that

29 In support of this theory, Respondent relies solely on U.S. Postal Service, 352 NLRB 1032 (2008), which is a two-
member Board decision that has no precedential force as it was not subsequently adopted by the Board or the Court
of Appeals after New Process Steel, 560 U.S. 674 (2010).
JD-07-20
28
Esparza or any Union official had a history of threatening, intimidating, or retaliating against employees
for raising complaints against the Union, or that the Union sought the employees’ names for that purpose.
Even if employees expressed concern about harassment or retaliation---and there is no evidence that any
did---Respondent failed to establish a reasonable expectation that disclosure of the names would lead to
such activity. See American Medical Response West, 366 NLRB No. 146, slip op. at 4 (2018).5
Additionally, even if the confidentiality interest outweighs the requester’s need for the requested
information, the party asserting confidentiality may not simply refuse to provide it. It must seek an
accommodation that allows the requester to obtain the information it needs while protecting the party’s
interest in confidentiality. American Baptist Homes of the West, 362 NLRB at 1137; and General Drivers, 10
Warehousemen & Helpers Local Union No. 89, 365 NLRB No. 115, slip op. at 3. The burden of formulating
a reasonable accommodation is on the employer; the union need not propose a precise alternative to
providing the requested information. Borgess Medical Center, 342 NLRB 1105, 1106 (2004). Respondent
did not attempt, let alone satisfy, its duty to come forward with an appropriate accommodation in this case.
15
Overall, I find Respondent unreasonably delayed in providing the above requested information.
E. Barring Interns
Paragraph 6(b) of the final amended consolidated complaint alleges that Respondent violated 20
Section 8(a)(5) and (1) of the Act when it unilaterally restricted Union access by barring the interns without
providing the Union with prior notice and an opportunity to bargain. I find merit to this allegation.
A union’s ability to access the employer’s property for representational purposes is a mandatory
subject of bargaining that may not be unilaterally changed. Meadowlands View Hotel, 368 NLRB No. 119
(2019). The Board has consistently found a violation when the employer has unilaterally reduced or 25
changed access for union representatives. See e.g., Desert Springs Hospital Medical Center, 369 NLRB
No. 16, slip op. 2 (January 30, 2020) (unilateral change prohibiting union representatives from meeting
with unit employees in breakroom while non-bargaining unit employees present unlawful); Turtle Bay
Resorts, 355 NLRB 1272 (2010), enfd. 452 Fed. Appx 433 (5th Cir. 2011) (unilateral change in past practice
by no longer validating parking for business agents present at resort for representational purposes unlawful); 30
Frontier Hotel & Casino, 323 NLRB 815, 818 (1997), enfd. in pertinent part 118 F.3d 795 (D.C. Cir. 1997)
(unilateral change to require representatives to sign copy of access policy prior to entering facility
unlawful); Ernst Home Centers, Inc., 308 NLRB 848, 848-849 (1992) (unilateral change to practice of
permitting business representatives to have limited conversations with employees on sales floor by
imposing restrictions that all conversations occur in the breakroom or lunchroom unlawful); BASF 35
Wyandotte Corp., 274 NLRB 978 (1985), enfd. 798 F.2d 849 (5th Cir. 1986) (unilateral changes to
providing union office space and access to equipment unlawful).30
The General Counsel argues there is both a contractual right and established past practice affording
interns access to the hotel. Article IV grants interns as “other authorized representatives of the Union”
access to the hotel. This access provision is a term and condition of employment that survives contract 40
expiration and cannot be modified without providing prior notice and an opportunity to bargain.
Meadowlands View Hotel, supra slip op. at 16. The interns also accompanied the Union representatives to

30 In Peerless Food Products, 236 NLRB 161 (1978), the Board found the employer did not make a material,
substantial, or significant change when, while continuing to allow union representatives access to the facility to discuss
union matters with employees, it barred the representative from “engag[ing] unit employees in conversations on the
production floor when those conversations are unrelated to contract matters.” 236 NLRB at 161. In Frontier Hotel,
323 NLRB at 818, the Board clarified that in Peerless “the Board found no violation because it found no evidence
that the employer actually had applied, or intended to apply, the rule so as to reduce the access of union representatives
to employees for any representational purpose.”
JD-07-20
29
the hotel to interact with unit employees for representational purposes. According to David Glaser, the
interns primarily spoke to the J1-visa employees working at the hotel about the Union. An employer may
not modify an established practice relating to access without bargaining with the union. Turtle Bay Resorts,
supra at 1272. By unilaterally barring the interns, Respondent denied or reduced the Union’s access for
representational purposes, which constitutes a material, substantial, and significant unilateral change over 5
which Respondent failed to bargain.
Respondent cites to Fred Meyer Stores, Inc., 368 NLRB No. 6 (2019), for support that an employer
may exclude non-employee union representatives from its property even when the contract grants access.
In that case, the Board held the employer did not violate the Act when it denied representatives access
because the union departed “dramatically” and “unreasonably” from its established past practice when it10
sent 8 representatives (as opposed to its normal 1 or 2) to the store floor for several minutes to get employees
to sign a petition. Here, by contrast, the Union did not exceed the scope of the contractual right nor its
established past practice. On the day in question, the Union sent the same number of representatives, at the
same general time, to the same location as it had on a daily basis for the last several years.
Respondent further argues it had the right to bar the interns because they went to another hotel, the 15
Anchorage Marriott, and engaged housekeeping staff members there about their working conditions while
they were working. Respondent contends the interns’ conduct at the Anchorage Marriott was a legitimate
non-discriminatory reason for barring them from both hotels. Respondent’s argument is misplaced; as the
Board has held, even where abuses may warrant changing the practice, “[t]he Act requires that, instead of
implementing its own solution to perceived abuse, the [employer must] bargain with the [u]nion over 20
possible solutions to any problems with access.” Frontier Hotel, 323 NLRB at 817. Because Respondent
never notified or offered to bargain with the Union prior to unilaterally barring the interns from the hotel,
it violated Section 8(a)(5).
F. Bad-Faith Bargaining, Declaration of Impasse, and Unilateral Implementation of Revised
Union Access Policy25
Paragraph 8 of the final amended consolidated complaint alleges that since about January 5, 2018,
Respondent has violated Section 8(a)(5) and (1) of the Act when it failed and refused to bargain in good
faith with the Union, including failing to make counterproposals, ceasing negotiations, refusing future
bargaining, and unilaterally implementing its revised access policy.3130
Section 8(d) of the Act imposes “a mutual obligation on the [parties] to meet at reasonable times
and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or
the negotiation of an agreement ... but such obligation does not compel either party to agree to a proposal
or require the making of a concession...” That being said, the obligation to bargain in good faith requires 35
more than just going through the motions; it requires that parties approach bargaining with a “serious intent
to adjust differences and to reach an acceptable common ground.” NLRB v. Truitt Mfg., 351 U.S. at 155.
See also Regency Service Carts, 345 NLRB 671 (2005); Mid-Continent Concrete, 336 NLRB 258, 259
(2001), enfd. sub nom. 308 F.3d 859 (8th Cir. 2002); and Public Service Co. of Oklahoma, 334 NLRB 487
(2001), enfd. 318 F.3d 1173 (10th Cir. 2003). The Board examines the totality of a party’s conduct to 40
determine if it has met its obligation to bargain in good faith. See Public Service Co. of Oklahoma, supra;
Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984).
During contract negotiations, an employer’s obligation to refrain from unilateral changes extends
beyond the mere duty to give notice and an opportunity to bargain; it encompasses a duty to refrain from 45

31 At hearing, Counsel for General Counsel amended this paragraph to change the date of alleged offending conduct
from since February 2017, to since about January 5, 2018. (G.C. Exh. 11).
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30
implementation at all, unless and until an overall impasse has been reached on bargaining for the agreement
as a whole. Bottom Line Enterprises, 302 NLRB 373, 374 (1991), enfd. mem. sub nom 15 F.3d 1087 (9th
Cir. 1994). The limited exceptions to this rule are: (1) when a union, in response to an employer’s diligent
and earnest efforts to engage in bargaining, insists on continually avoiding or delaying bargaining; or (2)
when economic exigencies compel prompt action. Id., R.B.E. Electronics of S.D., 320 NLRB 80, 81 (1995). 5
“[I]mpasse is ... that point at which the parties have exhausted the prospects of concluding an
agreement and further discussions would be fruitless.” Laborers Health & Welfare Trust Fund v. Advance
Lightweight Concrete Co., 484 U.S. 539, 543 fn. 5 (1988). To determine whether impasse has been reached,
the Board considers the totality of the circumstances, including “[t]he bargaining history, the good faith of 10
the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which
there is disagreement, [and] the contemporaneous understanding of the parties as to the state of
negotiations.” Stein Industries, Inc., 365 NLRB No. 31, slip op. at 3 (2017) (quoting Taft Broadcasting
Co., 163 NLRB 475, 478 (1967), review denied sub. nom. Television Artists AFTRA v. NLRB, 392 F.2d
622 (D.C. Cir. 1968)). Both parties must believe they are at the end of their rope and that further bargaining 15
would be futile. Larsdale, Inc., 310 NLRB 1317, 1318 (1993)). The party claiming impasse has the burden
of proving its existence. Dish Network Corp., 366 NLRB No. 119, slip op. at 2 (2018).
The General Counsel argues Respondent was obligated to bargain toward an agreement or impasse
on each of the key issues (i.e., wages, health care, 17-room cleaning requirement, successor/assigns 20
language, and Union access). Respondent was only willing to bargain over Union access. It rejected each
of the Union’s proposals, including its access counterproposal, without making any counterproposals, and
it effectively ended bargaining when it refused to change its considered positions “in the absence of a
respectful and good faith partner,” declared impasse, and implemented the revised access policy.
25
Respondent counters that the sole purpose of the negotiations was to bargain over access, and the
Union sought to expand the negotiations to include issues over which the parties had been, and continued
to be, at impasse. The Union delayed bargaining for over 10 months until it finally submitted its initial
access proposal on December 20, which Respondent rejected because the Union would not yield on
unconditional access to the cafeteria. As such, because of the Union’s failure to make any meaningful 30
movement on access to the cafeteria, Respondent declared impasse and set a timeline for implementation
of its revised policy. Respondent further contends it did not refuse to bargain over the Union’s other
proposals. Instead, it argues, the Union failed to seek further bargaining after December 20, 2017, and it,
and not Respondent, is responsible for the bargaining hiatus that has occurred since then.32 As set forth
below, I find Respondent’s defenses unavailing.35
Prior Impasse
The parties do not dispute they were at impasse at the end of their 2014 contract negotiations.
However, the Board has held the existence of an impasse “merely suspends the duty to bargain over the 40
subject matter of the impasse until changes in circumstances indicate that an agreement may be possible.”

32 Respondent contends it entered into an April 9, 2019 informal Board settlement agreeing to, upon request, resume
bargaining with the Union, but the Union never requested to bargain. As stated, the Union did not enter into this
settlement, and it was never approved by the Regional Director. Setting that aside, under the terms of the settlement,
Respondent was required to take certain affirmative steps, such as rescinding various unilateral changes, and there is
no evidence Respondent took those steps. I decline to find the Union at fault for failing to request bargaining following
a “settlement” where the evidence does not establish Respondent effectuated the terms of that settlement. A union
must not be forced to commence bargaining from a disadvantageous position, or bargain from a hole, caused by the
employer’s unremedied unilateral changes. Covanta Energy Corp., 356 NLRB 706, 730 (2011); and Intermountain
Rural Elec. Assn., 305 NLRB 783, 789 (1991), enfd. 984 F.2d 1562 (10th Cir. 1993).
JD-07-20
31
Airflow Research & Mfg. Corp., 320 NLRB 861, 862 (1996) (footnote omitted). Anything that creates a
new possibility of fruitful discussion (even if it does not create a likelihood of agreement) breaks an impasse
and revives an employer’s obligation to bargain over the subjects of the impasse. Id. (citing Gulf States
Mfrs. v. NLRB, 704 F.2d 1390, 1399 (5th Cir. 1983) (impasse may be broken by a strike, a change in the
union's bargaining position, a change in negotiators, and the passage of time)). See also Civic Motor Inns, 5
300 NLRB 774, 775 (1990) (“intervening event ... likely to affect the existing impasse or the climate of
bargaining.”). A substantial change in bargaining position will revive the employer’s obligation to bargain
over the subject of the impasse. KIMA-TV, 324 NLRB 1148, 1151-1152 (1997). The party asserting a
broken impasse has the burden of proving changed circumstances that would justify such a finding. See
Serramonte Oldsmobile v. NLRB, 86 F.3d 227, 233 (D.C. Cir. 1996).10
The General Counsel argues the 2014 impasse was broken by the time the Union submitted its
December 20, 2017 proposals because they reflected substantial changes in its bargaining positions on
wages, health care, and the 17-room cleaning requirement.33 In 2014, the Union sought to have Respondent
pay employees the same wages as at the Captain Cook hotel, continue to participate in the Union’s health 15
trust fund and pay the increased contribution amounts, and reduce in the room cleaning requirement from
17 to 15 rooms.34 In its December 20, 2017 proposals, the Union abandoned or modified these positions.
It no longer sought parity with the Captain Cook hotel. Instead, it proposed across-the-board and specific
wage increases to wage rates below those paid at the Captain Cook. The Union also no longer proposed
Respondent’s participation in the Union’s health benefit trust fund. Rather, it agreed to remain in the 20
company health insurance plan, with changes to employee costs, modified eligibility requirements, and the
creation of accrued hour banks. The Union also no longer proposed reducing the room cleaning requirement
to 15 rooms. Instead, it proposed paying additional compensation for each room cleaned beyond 15. Evans
acknowledged this as a “compromise,” but one Respondent would rather consider when addressing wages.
25
Respondent argues these were merely symbolic gestures. I disagree. These changes reflected
substantial movement on key issues and created the possibility of further fruitful discussions. Overall, they
were sufficient to break the impasse and revive Respondent’s obligation to bargain over those issues.
Alleged Dilatory Tactics30
The General Counsel contends that once the impasse was broken, Respondent was obligated to
refrain from implementing its revised access policy unless and until an overall impasse was reached.
Respondent counters it was not required to do so because the Union continually avoided or delayed
bargaining by, among others, failing to promptly provide bargaining dates, not having representatives 35
available to meet for long periods of time, making multiple requests for information that bore no

33 In brief, the General Counsel contends the impasse was broken earlier when the Union advised Respondent it was
“prepared to make substantial movement” off its prior positions and intended to submit proposals on the key subjects.
The Board has held a party’s bare assertions of flexibility on issues and its generalized promises of new proposals do
not clearly establish any change, much less a substantial change, in that party’s negotiating position. Holiday Inn
Downtown-New Haven, 300 NLRB 774, 776 (1990). See also KIMA-TV, 324 NLRB at 1151-1152 (mere “willingness”
to be reasonable and flexible in bargaining position is not enough). There must be “substantial evidence in the record
that establishes changed circumstances sufficient to suggest that future bargaining would be fruitful.” Serramonte
Oldsmobile, Inc. v. NLRB, 86 F.3d 227, 233 (D.C. Cir. 1996) (emphasis in original)). The General Counsel does not
cite to an earlier date(s) when the impasse allegedly was broken; only that it was broken by the time the Union
submitted its December 20 proposals. However, I need not reach the issue of whether the impasse was broken at an
earlier date because the amended allegation is that Respondent failed to bargain since around January 5, 2018. As
such, the focus is on whether the prior impasse had been broken by that date.
34 In 2014, the Union made a proposal addressing the successors/assigns language, which Respondent rejected. The
record, however, does not reflect what the Union’s proposal was at the time. This precludes a determination as to
whether there was a substantial change in the Union’s position on that topic from 2014 to 2017.
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32
relationship to the access issue, promising but failing to make proposals aimed at breaking the impasse, and
using Rosario’s discharge to cancel bargaining sessions, which resulted in a five-month bargaining hiatus.35
The record does not support Respondent’s claim that the Union continually delayed or avoided
bargaining. From the outset, the Union advised Respondent that because of the severity of its access 5
proposal, which would limit the Union’s long-standing practice of interacting daily with unit employees at
the hotel during their lunch breaks, it wanted to reopen negotiations and discuss rules on access as part of
an overall agreement. The Union was open with Respondent about its willingness to consider such rules in
exchange for agreement on other key issues, such as wages and health care. The Board has held the very
nature of collective bargaining presumes that while movement may be slow on some issues, a full discussion 10
of other issues may result in agreement on the stalled matters. Royal Motor Sales, 329 NLRB 760, 772
(1999). “Bargaining does not take place in isolation and a proposal on one point serves as leverage for
positions in other areas.” Anderson Enterprises, 329 NLRB 760, 772 (1999), enfd. 2 Fed. Appx. 1 (D.C.
Cir. 2001) (quoting Korn Industries v. NLRB, 389 F.2d 117, 121 (4th Cir. 1967)).
15
The parties did not meet from May through July 2017, because of the Union’s scheduling conflicts
and its outstanding requests for information. Contrary to Respondent’s assertions, the requested
information related to bargaining topics, including access, and the Union needed the information to help
formulate its bargaining proposals and counterproposals.
20
At the August 4 session, the Union did not avoid or delay discussing access. It offered to start
negotiations with that topic. The parties then the session discussing Respondent’s stated reasons for
wanting to revise the existing contractual language. After the parties discussed Respondent’s concerns, the
Union orally proposed to provide Respondent notification and seek its permission when it came to access
the hotel for certain purposes, other than for meeting with employees in the cafeteria. Respondent rejected 25
this proposal. The Union later reiterated its positions in a letter. Respondent replied that while it would
keep an open mind regarding any proposal the Union made, it did not intend to make any proposals on
wages, health care, the 17-room cleaning requirement, or successorship, as its positions on those topics had
not changed. Respondent also stated it would not forestall negotiations over its access proposal indefinitely
while it awaited the Union’s promised future proposals on these other topics. 30
In mid-August, the parties agreed to next meet for bargaining on October 24 and 25, because that
was the first time the Union’s two chief negotiators (Glaser and Iglitzin) were available to travel to
Anchorage for two consecutive days of bargaining. The subsequent cancellation of these October
bargaining sessions was not dilatory; it was the Union’s response to a perceived attack on its bargaining 35
committee members and supporters through the discharge of Rosario. And while the Union cancelled face-
to-face bargaining, it did not cut off bargaining altogether. Glaser proposed to continue negotiations
through correspondence, and he included a copy of the Union’s written wage proposal. Respondent rejected
the proposal, citing to the Union’s characterization of Respondent as “bad people” and the ongoing boycott
of the hotel.40
Respondent bewails the timing and content of the Union’s proposals while refusing to alter its
position on any of the key issues, despite the Union’s stated willingness to enter into a quid pro quo
arrangement. Respondent, instead, wanted the Union to relinquish its primary method of communicating
with unit members in exchange for little or nothing. Upon the entire record, I conclude that Respondent 45
did not approach the negotiations with the attitude of settlement through give and take which the Act

35 In its final answer, Respondent claims as an affirmative defense that its actions were justified by special
circumstances or economic necessity. But it did not present evidence or argument to support either. I, therefore,
consider these defenses as waived.
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33
requires. See generally, Endo Laboratories, Inc., 239 NLRB 1074, 1075 (1978) (recognizing “the kind of
‘horsetrading’ or “‘give-and-take’ that characterizes good-faith bargaining”).
Alleged Single Issue Impasse
5
Respondent next argues impasse was reached when the parties deadlocked over access. The Board
has held that an overall impasse may be reached based on a deadlock over a single issue. Atlantic Queens
Bus Corp., 362 NLRB 604 (2015) (citing CalMat Co., 331 NLRB 1084, 1097 (2000)). The party asserting
a single-issue impasse has the burden to prove: (1) that a good-faith impasse existed as to a particular issue;
(2) that the issue was critical in the sense that it was of “overriding importance” in the bargaining; and (3) 10
that the impasse as to the single issue “led to a breakdown in overall negotiations.” Id. (quoting CalMat,
331 NLRB at 1097). Respondent argues it repeatedly stressed to the Union that the revised access policy
was of high importance. Although Respondent agreed to consider other proposals, it was adamant about
its objective and not wanting to be held up while the Union spent many months claiming to be “hard at
work” on other proposals. When it became clear that the Union would not yield on unconditional cafeteria 15
access, Respondent declared impasse and announced a timeline for implementation of the revised policy.
Based on my review of the evidence, I find Respondent has failed to meet its burden. First, the
parties were not at impasse over access. The Union made concessions in its December 20 counterproposal
reflecting a substantial change in its bargaining position on this matter, and, contrary to Respondent’s 20
claims, there is no indication the Union was at the end of its rope, or that it would not yield on unconditional
cafeteria access. Initially, the Union wanted to maintain the existing language in Article IV. Later, at the
second bargaining session, the Union orally offered to provide management with notification and seek
permission when its representatives accessed the hotel for purposes other than for meeting employees in
the cafeteria. The parties disputed whether that amounted to an actual change or simply reflected the 25
existing obligations under the contract. That dispute is immaterial because the Union’s December 20
counterproposal went even further. In it, the Union agreed to several concessions, including that
representatives would sign in and out when they arrived at the hotel; they would not silence the cafeteria in
order to make announcements or otherwise unnecessarily interfere with the ability of employees to socialize
or enjoy their time in the cafeteria; and they would not take airborne or other samples, enter the mechanical 30
rooms, hold events with the media or elected officials inside the hotel, hold rallies or demonstrations inside
the hotel, or place Union surveys or flyers under guestroom doors, without first coordinating such activities
with management. Each of these were in direct response to reasons Respondent stated for why it wanted
to revise Article IV. Respondent, however, contends the Union did not go far enough because it did not
completely relinquish access to the employee cafeteria. While the Union may not have gone as far as 35
Respondent wanted, the Union made a substantial change in its position and moved the parties closer toward
an agreement. Larsdale, Inc., 310 NLRB at 1319 (“[u]nion’s counterproposal on this date, containing a
number of concessions, was a sign that the [u]nion was willing to modify its proposals. Given this
movement by the [u]nion, the [employer] was not justified in concluding that negotiations were at impasse
simply because the [u]nion’s concessions were not more comprehensive or sufficiently generous”). While40
Respondent clearly lost patience with the Union, that frustration does not equate with a valid impasse, nor
did it mean that a negotiated agreement was out of reach. Newcor Bay City Division, 345 NLRB 1229,
1238-1239 (2005); and Grinnell Fire Protection Systems Co., 328 NLRB 585 (1999), enfd. 236 F.3d 187
(4th Cir. 2000), cert. denied 534 U.S. 818 (2001). See also Powell Electrical Mfg. Co., 287 NLRB 969,
973 and 974 (1987), enfd. as modified 906 F.2d 1007 (5th Cir. 1990) (futility, not some lesser level of 45
frustration, discouragement, or apparent gamesmanship, is necessary to establish impasse). Where a party
who has made significant concessions indicates a willingness to compromise further, it would be erroneous
“to find impasse merely because the party is unwilling to capitulate immediately and settle on the other
party's unchanged terms... Further, even assuming arguendo that [the employer] has demonstrated it was
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unwilling to compromise any further, we find that it has fallen short of demonstrating that [the union] was
unwilling to do so.” Grinnell Fire Protection Systems Co., supra at 586 (1999).36
Additionally, a valid impasse cannot be reached when the employer has failed to supply the union
with requested information relevant to the core issues separating the parties. Caldwell Manufacturing Co., 5
346 NLRB 1159, 1159-1160, 1170 (2006); see also Colorado Symphony Association, 366 NLRB No. 122,
slip op. at 34 (2018); Centinela Hospital Medical Center, 363 NLRB No. 44, slip op. at 2-3 & fn. 8 (2015);
E.I. Du Pont Co., 346 NLRB 553, 558 (2006); and Titan Tire Corp., 333 NLRB 1156, 1159 (2001). As
stated, Respondent failed to provide the Union with the requested employee complaints about voice
recording, which it listed as one of the reasons why it wanted to restrict access to the cafeteria. 10
Next, while Respondent identified limiting access to the cafeteria as one of its objectives, it never
identified that as its primary or overriding objective. Nor did it indicate there was any exigency for limiting
such access. During bargaining, Respondent gave the Union 10 reasons why it wanted to change the access
policy, and only three dealt with access to the cafeteria (i.e., managers were inhibited from going into the 15
cafeteria (because of the Union’s unfair labor practice charge), non-union employees were having their
meal breaks interrupted by Union staff, and Union members were unwillingly spoken to by Union
representatives). The Union’s counterproposal addressed two of these concerns, in part, by agreeing not to
silence the cafeteria in order to make announcements or otherwise unnecessarily interfere with the ability
of employees to socialize or enjoy their time in the cafeteria. Again, while the counterproposal may not 20
have been to Respondent’s complete satisfaction, it reflected substantial movement and brought the parties
closer to an agreement.
Respondent cites to National Gypsum Co., 359 NLRB 1058 (2013), as being analogous. I disagree.
In that case, the Board found no violation when the employer unilaterally implemented changes to its health 25
insurance premiums and safety rules following an impasse over the employer’s proposals to replace its
defined benefit pension plan with a defined contribution plan and to allow the employer to unilaterally
suspend matching contributions to employee 401(k) accounts. In finding that impasse had occurred, the
Board stated that the employer “had steadfastly held to its two proposals and made clear that it was
unwilling to accept concessions on other issues in return for dropping them, and the union, in turn, made it 30
clear that it would not accept the two proposals....” The union said it did not believe the parties were at
impasse, and that it was ready to continue bargaining. The Board, however, found it was clear the union
had no intention of modifying its position on the issues “critical to the reaching of an agreement.” Here,
the Union never indicated it was unwilling to modify its position on access. On the contrary, it stated from
the outset that it would consider limits on access in exchange for concessions on other issues, like wages 35
and health care, which is why it was, unsuccessfully, attempting to bargain to an overall agreement.
Finally, the purported impasse over access did not lead to a breakdown in the overall negotiations.
The Union eagerly sought to bargain all the key issues, including making concessions in order to reach
agreement on those issues. Respondent summarily rejected them even though they moved the parties closer 40
to an agreement. See Newcor Bay City Division, supra at 1238 (employer required to continue bargaining
even when “a wide gap between the parties remains because under such circumstances there is reason to
believe that further bargaining might produce additional movement”) (internal quotes omitted). But when
negotiations are stymied by a party prematurely declaring impasse, it prevents both parties from realizing
this essential benefit of collective bargaining firmly rooted in the Act. See Television Artists v. NLRB, 395 45
F.2d at 628 (“[i]t is indeed a fundamental tenet of the [A]ct that even parties who seem to be in implacable
conflict may, b[y] meeting and discussion, forge first small links and then strong bonds of agreement”).

36 In its November 21, 2017 letter, Respondent threatened to implement its revised access policy unless the parties
reached an agreement by the end of the year. In its January 5, 2018 letter, however, Respondent expressed no
willingness to continue bargaining over access; it declared impasse and set the timeline for implementation.
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By prematurely declaring impasse and implementing the revised access policy, the Respondent
failed and refused to bargain in good faith with the Union, in violation of Section 8(a)(5) and (1).37
G. Contacting the Anchorage Police Department to Report Trespassing by Union 5
Representatives
Paragraph 6(c) of the final amended consolidated complaint alleges that on about January 31,
2018, Respondent violated Section 8(a)(5) and (1) of the Act when it restricted Union access to the hotel
by calling the Anchorage Police Department and reporting that Union officials were trespassing on hotel 10
property when they did not comply with Respondent’s revised access policy.38 The General Counsel argues
that just as Respondent’s unilateral implementation of the revised access policy was unlawful, so was
contacting the local police to seek its assistance in enforcing that policy. I agree. As there was no good
faith impasse, the Union representatives retained their right under Article IV to access the employee
cafeteria, and they were exercising that right on the day in question. It is a violation of Section 8(a)(5) and 15
(1) for an employer to contact the police and seek the removal of union representatives for alleged trespass
when they are acting pursuant to a contractual right. Toms Ford, Inc., 253 NLRB 888, 893 (1990).
Respondent cites to UPMC Presbyterian Hospital, 368 NLRB No. 2 (2019), Bexar County
Performing Arts Center Foundation, 368 NLRB No. 46 (2019), and Kroger Limited Partnership, 368 20
NLRB No. 64 (2019), for support. These cases are distinguishable because none involved union
representatives exercising a contractual right to access the employer’s property. In Fred Meyer Stores, Inc.,
supra, the union had a contractual right to access the employer’s property, but it significantly departed from
its past practice in exercising that right; therefore, the Board found no violation. Again, here, the Union
did nothing out of the ordinary when it sent two representatives to the employee cafeteria to meet with 25
employees at the same time of day that it had for the last seven years.
Respondent, therefore, violated Section 8(a)(5) and (1), as alleged, by contacting the Anchorage
Police Department to assist in enforcing the revised access policy to bar Union representatives from
exercising their contractual right. 30
H. Bypassing the Union, Direct Dealing and Denigrating the Union
Paragraph 7 of the final amended consolidated complaint alleges that from February39 through
December 2018, Respondent violated Section 8(a)(5) and (1) of the Act when it bypassed the Union, dealt 35
directly with its employees in the Unit, and denigrated the Union by posting a notice to employees by the
time clock outside of the human resources office at the facility stating that: (a) it wanted “to have a direct
working relationship with our employees to solve issues and does not believe having a 3rd party labor union
involved is necessary;” (b) the Union was wrong that without a union employees could lose benefits; (c) at
its hotels without unions employees had the same benefits the Unit employees currently had “and more;” 40

37 Based on my findings that the prior impasse was broken with the Union’s December 20 proposals, and Respondent
thereafter violated Section 8(a)(5) and (1) when it failed and refused to bargain by prematurely declaring impasse over
Union access and unilaterally implementing its revised access policy, it is unnecessary for me to evaluate whether
Respondent also violated Section 8(a)(5) and (1) by failing to make counterproposals, ceasing negotiations, and
refusing future bargaining, as those findings and conclusions would not materially alter the remedy.
38 In brief, the General Counsel argues that by contacting the police Respondent restricted lawful union activity, in
violation of Section 8(a)(1). I need not reach this separate contention because a violation of Section 8(a)(5) is also a
derivative violation of Section 8(a)(1). Tennessee Coach Co., 115 NLRB 677, 679 (1956), enfd. 237 F.2d 907 (6th
Cir. 1956). See ABF Freight System, 325 NLRB 546 fn. 3 (1998).
39 Although the complaint alleges from February through December 2018, the parties stipulated that Respondent began
posting the notice at issue in late June 2018. (Jt. Exh. 1, pg. 4).
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36
and (d) “our managers welcome you to come to us with any concerns you may have for solutions that are
satisfactory to you.” Respondent defends that its comments were protected under Section 8(c) of the Act.
The General Counsel argues that Respondent bypassed the Union and engaged in direct dealing by
soliciting employee concerns and impliedly promising to remedy them. Such conduct violates Section 5
8(a)(5) and (1). See American Standard Cos., 352 NLRB 644, 655 (2008) (violation of Section 8(a)(5)
where employer solicits employee grievances and promises to remedy them, thereby undermining the
union); and Laidlaw Transit, 318 NLRB 695, 701 (1995)(violation of Section 8(a)(5) for supervisor to
solicit employee grievances and attempt to deal directly with employees regarding a subject that was being
discussed during bargaining with the union).10
To establish a direct dealing violation, the General Counsel must show that: (1) the employer was
communicating directly with union-represented employees; (2) the discussion was for the purpose of
establishing or changing wages, hours, and terms and conditions of employment or undercutting the union’s
role in bargaining; and (3) such communication was made to the exclusion of the union. Permanente 15
Medical Group, 332 NLRB 1143, 1144 (2000) (citing Southern California Gas Co., 316 NLRB 979
(1995)). Respondent’s posting of the notice by the employee timeclock without notifying the Union
satisfies the first and third factors. As for the remaining factor---the purpose---Respondent contends it was
correcting misrepresentations or false statements contained in the Union’s letter. That does not explain
Respondent’s statements of wanting a “direct working relationship with our employees to solve issues” 20
without the need for a union, and welcoming employees to come to it “with any concerns you may have for
solutions that are satisfactory to you.” These statements establish that Respondent was seeking direct
communication with employees about individual concerns related to their terms and conditions of
employment, at the exclusion of the Union, with the implied promise of remedying those concerns to the
employees’ satisfaction.40 Inviting employees to come directly to management for satisfactory solutions to 25
their concerns undercuts the Union’s role as the employees’ bargaining representative, particularly at a time
when it is attempting to negotiate a new agreement.41
The General Counsel next contends Respondent disparaged the Union with its characterizations of
the contents of the Union’s letter, including the statements set forth above. Under Section 8(c), an employer 30
may criticize, disparage, or denigrate a union without running afoul of the Act, provided that its expression
of opinion does not threaten reprisals, promise benefits, or otherwise interfere with the Section 7 rights of
employees. See Southern Bakeries, LLC, 364 NLRB No. 64, slip op. at 3 (2016), enf. granted and denied
in part on other grounds 871 F.3d 811 (8th Cir. 2017); Children's Center for Behavioral Development, 347
NLRB 35, 35 (2006). Here, by inviting employees to raise concerns directly with management and 35

40 In brief, the General Counsel argues that by soliciting grievances and impliedly promising to remedy them
Respondent independently violated Section 8(a)(1). As stated, I need not reach this separate contention because a
violation of Section 8(a)(5) is also a derivative violation of Section 8(a)(1).
41 The Board has held a violation may be found even if the employer does not specifically commit to granting a
particular improvement in wages or benefits, so long as the totality of the circumstances indicate a willingness to
address employee dissatisfaction without union representation. Multi-Ad Service, Inc., 331 NLRB 1226, 1227, 1241
(2000), enfd. 255 F.3d 363 (7th Cir. 2001). However, “[a]n employer may rebut the inference of an implied promise
by, for example, establishing that it had a past practice of soliciting grievances in a like manner prior to the critical
period, or by clearly establishing that the statements at issue were not promises.” MEK Arden, LLC, 356 NLRB No.
109, slip op. at 2 (2017) (quoting Mandalay Bay Resort & Casino, 355 NLRB 529, 529 (2010)). At the hearing,
Respondent introduced a copy of its Open Door Policy, which was posted somewhere on the bulletin board prior to
and during the posting at issue. The Open Door Policy invites employees to report situations or problems to their
supervisor or another member of management and to give him/her an opportunity “to work it out” with the employee.
But, unlike the posting, the Open Door Policy does not promise a solution that is satisfactory to the employee.
Regardless, based on this limited evidence, I find Respondent did not rebut the inference of an implied promise of
remedying employees’ concerns with the cited statements in its posting responding to the Union’s letter.
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37
impliedly promising to remedy those concerns to the employees’ satisfaction while negotiations were
ongoing, Respondent undermined the status of the Union in the eyes of the employees and undercut its role
as the employees’ exclusive collective-bargaining representative.
I, therefore, find Respondent violated Section 8(a)(5) and (1) when it bypassed the Union and 5
engaged in direct dealing by soliciting employee complaints with the implied promise of remedying them,
and by denigrating the Union by undercutting its role as the exclusive bargaining representative.
CONCLUSIONS OF LAW
10
1. Respondent CP Anchorage Hotel 2, LLC, d/b/a Hilton Anchorage is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union UNITE HERE! Local 878 is a labor organization within the meaning of Section 2(5) of
the Act.15
3. The Union has been the recognized exclusive collective-bargaining representative of the following
unit of employees:
All full-time and part-time banquet bartenders, banquet captains, banquet servers, banquet 20
housemen, baristas, bellmen, bell captains, bruins bartenders, bus persons, cashiers, coat
check/room check attendants, cocktail servers, concierges, cooks, dishwashers/stewards,
doormen, front desk/PBX employees, hosts/hostesses, housekeeping clerks,
housekeepers/room attendants, housemen, housekeeping inspectors, laundry presser/chute
employees, laundry washers, maintenance employees, maintenance supervisors, night 25
auditors, purchasing employees, restaurant servers, and room service employees employed at
the facility located at 500 West 3rd Avenue, Anchorage, Alaska.
4. Respondent violated Section 8(a)(5) and (1) of the Act since about July 2017, when it unilaterally
restricted the Union’s access to its facility by barring interns.30
5. Respondent violated Section 8(a)(5) and (1) of the Act since about January 5, 2018, when it failed
and refused to bargain in good faith with the Union by prematurely declaring impasse over its revised Union
access policy and unilaterally implementing that revised policy.
35
6. Respondent violated Section 8(a)(5) and (1) of the Act on around January 31, 2018, when it
unilaterally restricted the Union’s access to its facility by calling the Anchorage Police Department and
reporting that Union officials were trespassing when they did not comply with Respondent’s revised access
policy.
40
7. Respondent violated Section 8(a)(5) and (1) of the Act from January 3, 2017 to about June 2, 2017,
when it failed to timely provide the Union with the schedules, time cards, and payroll records for bussers
at the Hooper Bay restaurant from November 1, 2016 to January 3, 2017.
8. Respondent violated Section 8(a)(5) and (1) of the Act from about August 22, 2017 to March 20, 45
2019, when it failed to timely provide the Union with the requested names of employees who complained
that the Union was forcing them to agree to voice recording.
9. Respondent violated Section 8(a)(5) and (1) of the Act from late June through December 2018,
when it bypassed the Union and dealt directly with unit employees by soliciting their grievances and 50
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38
impliedly promising to remedy them, and by denigrating the Union, by posting a notice to employees by
the timeclock outside of the human resources office.
10. The above violations are unfair labor practices that affect commerce within the meaning of Section
2(6) and (7) of the Act. 5
11. Consistent with this decision, I dismiss the remaining Section 8(a)(1), (4) and (5) allegations.
ORDER42
10
Respondent, CP Anchorage Hotel 2, LLC, d/b/a Hilton Anchorage, at its Anchorage, Alaska
facility, through its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
15
a. Failing or refusing to bargain in good faith with UNITE HERE! Local 878 as the recognized
exclusive collective-bargaining representative of:
All full-time and part-time banquet bartenders, banquet captains, banquet servers, banquet
housemen, baristas, bellmen, bell captains, bruins bartenders, bus persons, cashiers, coat 20
check/room check attendants, cocktail servers, concierges, cooks, dishwashers/stewards,
doormen, front desk/PBX employees, hosts/hostesses, housekeeping clerks,
housekeepers/room attendants, housemen, housekeeping inspectors, laundry presser/chute
employees, laundry washers, maintenance employees, maintenance supervisors, night
auditors, purchasing employees, restaurant servers, and room service employees employed at 25
the facility located at 500 West 3rd Avenue, Anchorage, Alaska.
b. Unilaterally implementing changes affecting employees’ wages, hours, or other terms and
conditions of employment without providing the Union with prior notice and an opportunity to bargain over
those changes, such as Union access.30
c. Failing to timely provide the Union with requested information that is relevant and necessary
to its role as collective-bargaining representative of the unit employees.
d. Prematurely declaring impasse and unilaterally implementing its revised Union access35
policy.
e. Bypassing the Union and directly dealing with unit employees by soliciting their grievances
and impliedly promising to remedy them.
40
f. Denigrate or undercut the Union’s role as the exclusive bargaining representative by
soliciting the unit employees’ grievances and impliedly promising to remedy them.
g. In any like or related manner interfere with, restrain, or coerce employees in the exercise of
the rights listed above.45
2. Take the following affirmative action necessary to effectuate the policies of the Act:

42 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be adopted by the Board and
all objections to them shall be deemed waived for all purposes.
JD-07-20
39
a. On request, bargain in good faith with the Union as the exclusive collective-bargaining
representative of the unit employees before implementing any changes to their wages, hours, or other terms
and conditions of employment.
5
b. On request, rescind the unilateral changes made regarding the Union’s access to the hotel
property and notify the Union in writing that has been done.
c. On request, bargain in good faith with the Union over wages, hours, and other terms and
conditions of employment until a full agreement or good faith impasse is reached.10
d. Within 14 days after service by the Region, post at its Anchorage, Alaska facility copies
of the attached notice marked “Appendix.”43 Copies of the notice, on forms provided by the Regional
Director for Region 19, after being signed by the Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places 15
where notices to employees are customarily posted. In addition to physical posting of paper notices, those
notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. 20
e. Within 21 days after service by the Region, file with the Regional Director for Region 19 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.
25
Dated, Washington, D.C., March 4, 2020.
30
_____________________________________
Andrew S. Gollin
Administrative Law Judge

43 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.”
d4P2-
JD-07-20
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union;
Choose a representative to bargain with us on your behalf;
Act together with other employees for your benefit and protection;
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT fail or refuse to bargain in good faith with the UNITE HERE! Local 878 (the Union), as
the exclusive collective-bargaining representative of all full-time and part-time banquet bartenders, banquet
captains, banquet servers, banquet housemen, baristas, bellmen, bell captains, bruins bartenders, bus
persons, cashiers, coat check/room check attendants, cocktail servers, concierges, cooks,
dishwashers/stewards, doormen, front desk/PBX employees, hosts/hostesses, housekeeping clerks,
housekeepers/room attendants, housemen, housekeeping inspectors, laundry presser/chute employees,
laundry washers, maintenance employees, maintenance supervisors, night auditors, purchasing employees,
restaurant servers, and room service employees employed at the facility located at 500 West 3rd Avenue,
Anchorage, Alaska.
WE WILL NOT fail or refuse to timely provide the Union with presumptively relevant information
WE WILL NOT unilaterally make changes regarding Union access to hotel property, including the
Union’s interns, without providing the Union with notice and an opportunity to bargain.
WE WILL NOT contact the police to have Union representatives removed from the hotel property when
they are acting in accordance with their contractual right.
WE WILL NOT fail or refuse to bargain in good faith by prematurely declaring impasse and unilaterally
implementing changes to employees’ wages, hours, or other terms and conditions of employment.
WE WILL NOT bypass the Union and deal directly with unit employees by soliciting their grievances and
impliedly promising to remedy them.
WE WILL NOT denigrate or undercut the Union’s role as the exclusive bargaining representative by
soliciting the unit employees’ grievances and impliedly promising to remedy them.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act.
WE WILL, upon request, bargain in good faith with the Union as the exclusive collective bargaining
representative of our unit employees with respect to the employees’ wages, hours, and other terms and
conditions of employment.
WE WILL, upon request, bargain in good faith with the Union until a full agreement or good faith impasse
is reached.
JD-07-20
WE WILL, upon request, rescind unilateral changes made to the Union access policy and notify the Union
in writing this has been done.
WE WILL, upon request, rescind unilateral changes made to the Union interns’ ability to access hotel
property.
WE WILL deal exclusively with the Union concerning the employees’ wages, hours, and other terms and
conditions of employment.
WE HAVE removed the notice posted on the bulletin board by the employee timeclock responding to the
Union’s letter in which we bypassed the Union and dealt directly with unit employees by soliciting their
grievances and impliedly promising to remedy them.
WE HAVE provided the Union with the information requested in its letter dated January 3, 2017, and WE
HAVE provided the Union with the information requested on about August 22, 2017.
CP ANCHORAGE HOTEL 2, LLC, D/B/A HILTON ANCHORAGE
(Employer)
DATED: _____________________________ BY__________________________________
(Representative) (Title)
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/19-CA-193656
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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (206) 220-6288