Rhino Northwest, LLC

National Labor Relations Board - Administrative Judge Opinions

Oct 28, 2019

19-CA-221309 (N.L.R.B. Oct. 28, 2019)

JD(SF)–36–19
Fife, Washington
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
RHINO NORTHWEST, LLC
and Cases: 19–CA–221309
19–CA–221359
LOCAL NO. 15, INTERNATIONAL ALLIANCE
OF THEATRICAL STAGE EMPLOYEES AND
MOVING PICTURE TECHNICIANS, ARTISTS,
AND ALLIED CRAFTS OF THE UNITED STATES
AND ITS TERRITORIES AND CANADA,
AFL-CIO, CLC
Elizabeth Devleming, Esq., for the General Counsel.
Timothy A. Garnett, Esq. and Heidi K. Durr, Esq.,
(Ogletree, Deakins, Nash, Smoak & Stewart, P.C. )
for the Employer.
Laura E. Ewan, Esq. and Carson Phillips-Spotts, Esq.,
(Barnard Iglitzin & Lavitt, LLP) for the Union.
DECISION
STATEMENT OF THE CASE
ARIEL L. SOTOLONGO, Administrative Law Judge. At issue in this case is whether Rhino
Northwest, LLC (Respondent or Rhino) violated Section 8(a)(1) & (5) of the Act by: (1)
implementing a policy requiring bargaining unit employees to wear a certain type of protective
shoes without first notifying and bargaining with Local No. 15, International Alliance of
Theatrical Stage Employees and Moving Picture Technicians, Artists, and Allied Crafts of the
United States, Its Territories and Canada, AFL–CIO, CLC (Union or Local 15); (2) failing and
refusing to meet with the Union to bargain on a regular basis; (3) failing and refusing to meet
with the Union for an appropriate amount of time to bargain; (4) failing and refusing to engage in
meaningful bargaining during negotiations with the Union; (5) failing and refusing to come to
bargaining sessions with the Union with prepared proposals; and (6) insisting that the Union is a
competitor of Respondent despite Board decisions finding it to be a labor organization.
JD(SF)–36–19
2
I. PROCEDURAL BACKGROUND
Based on charges in Cases 19–CA–221309 and 19–CA–221359 filed by the Union on
June 1, 2019, and an amended charge in Case 19–CA–221359 filed by the Union on5
July 31, 2018, the Regional Director for Region 19 of the Board issued a consolidated complaint
on August 22, 2018, alleging that Respondent had violated the Act by engaging in the above-
described conduct during the period between January 1, 2018 and July 12, 2018.1 Respondent
filed a timely answer, denying the substantive allegations of the complaint. I presided over this
case in Seattle, Washington, from December 10 through December 13, 2018.10
II. JURISDICTION AND LABOR ORGANIZATION STATUS
The complaint alleges, and Respondent admits, that it is an Arizona limited liability
corporation with an office and place of business in Fife, Washington, where it is engaged in the 15
business of providing event labor staffing services. The complaint further alleges, and
Respondent admits, that in conducting its business operations, during the 12 months preceding
the issuance of the complaint, a representative time period, Respondent has derived gross
revenues in excess of $500,000, and during the same time period it has provided services valued
in excess of $50,000 to customers located in states other than the State of Washington.20
Accordingly, I find that at all times material herein Respondent 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 at all material times the Union has been a labor
organization within the meaning of Section 2(5) of the Act.25
III. FINDINGS OF FACT
A. Background Facts
30
Many, and perhaps most of the facts in this case are not truly in dispute, and indeed the
General Counsel, Respondent and the Union entered into a Partial Stipulation of Facts that was
admitted into the record as Joint Exhibit 1 (Jt. Exh. 1). This exhibit in turn incorporates by
reference numerous documents, admitted as Joint Exhibits 2 through 124, which in essence tell
the story of the case, including, inter alia, letters and emails exchanged between the parties (i.e., 35
Respondent and the Union), bargaining proposals and bargaining notes made by both parties, and
other miscellaneous items, many of which require little, if any, explanation—but which will be
explored in more detail below.
As briefly described above, Rhino provides labor, primarily consisting of riggers, 40
stagehands, and truck loaders, and related production services (lights, audio and video) for
concerts, sport and corporate events, and trade shows in different venues throughout the Pacific

1 During the hearing, as will be discussed below, the General Counsel made a motion to amend the pleadings to
conform to the evidence adduced during the proceedings, in essence expanding the scope of the complaint to include
conduct engaged in by Respondent through the date of the motion, December 12, 2018 (Tr. 514–517). As discussed
more fully below, I granted the motion.
JD(SF)–36–19
3
Northwest. Jeff Giek, who is based in San Diego, is Respondent’s CEO and founder, and
Michelle Smith, who is based in Las Vegas, is its Regional Director of Operations.2 Based on a
petition filed by the Union on May 26, 2015 in case 19–RC–152947 (Jt. Exh. 2), the Regional
Director for Region 19 issued a Decision and Direction of Election on June 18, 2015 (Jt. Exh. 3),
directing that a representation election be held among a unit of riggers employed by 5
Respondent.3 Following an election, the Acting Regional Director certified the Union as the
collective-bargaining representative of said unit of employees on August 3, 2015 (Jt. Exh. 4), a
certification upheld by the Board on December 17, 2015, following Respondent’s appeal to the
Board. Rhino Northwest, LLC, 363 NLRB No. 72 (2015). Respondent appealed the Board’s
decision to the United States Court of Appeal for the DC Circuit, which upheld the Board’s10
decision, granting the Board’s cross-application for enforcement of its order on August 11, 2017
(Jt. Exh. 5). For reasons that are unclear, the court did not issue its mandate until October 3,
2017 (Jt. Exh. 6).
Following the issuance of the court’s mandate, on December 6, 2017, Andrea Friedland 15
(Friedland), a business representative of the Union, sent a letter to Respondent’s CEO, Jeff Giek
(Giek) requesting bargaining. The letter, which was also attached as an email to Giek, also
requested that Respondent provide the Union with specified information regarding, inter alia,
wages, benefits and other working conditions of the bargaining unit employees. (Jt. Exh. 18). By
letter dated January 3, 2018, though its counsel Timothy Garnett (Garnett), Rhino responded to 20
the Union’s bargaining and information request, suggesting January 29, 2018, as a bargaining
date, and stating that it would discuss the Union’s information request during their first
bargaining meeting (Jt. Exh. 19).4 On January 5 the Union, through Friedland, responded via
email, stating that it was unavailable for bargaining on January 29, and suggesting various dates
on the following week, namely on February 6, 8 or 9, as well as the afternoon of February 7. In 25
its email, the Union also reiterated that it needed the requested information in advance of the first
bargaining session in order to prepare for negotiations and requested that the information be
provided by January 16—6 weeks after the information was first sought (Jt. Exh. 20). On
January 9, Garnett responded via email, indicating Rhino’s availability to bargain on February 9,
one of the dates proposed by the Union. The email also informed that Rhino’s representatives 30
would be flying in that morning (into Seattle, the site of the negotiations), and requesting 11 a.m.
as the starting time and 4 p.m. as the time to finish, since the representatives had to fly home that
same evening. The email did not address the Union’s information request (Jt. Exh. 21).
Friedland, for the Union, responded on the same date (January 9) via email, agreeing to the date
(February 9) and times proposed by Rhino. Friedland also suggested that “everyone” should 35
bring their calendars “so we can schedule additional multiple dates” when they met on
February 9. (Jt. Exh. 22). On January 22, Garnett emailed Friedland, confirming the location of

2 Rhino is apparently related to, or part of, a corporate entity that has offices throughout the country, not just the
Pacific Northwest, where the Respondent in this case operates. Accordingly, as Regional Director of Operations,
Smith is in charge of 10 offices throughout the country, including the one in Fife, Washington.
3 The Regional Director found the following unit of employees to be appropriate for collective bargaining: All
full-time and regular part-time riggers, including boom lift riggers, ballroom riggers, decorating riggers, down
riggers, ETCP high riggers, fly operators, head riggers, head fly operators, high riggers, high rigger trainees, high
rigger welders, installation riggers, roof operators, roof supervisors, and rigging trainees, employed by the Employer
out of its Fife, Washington, facility, excluding all other employees, guards and supervisors as defined in the Act.
4 Henceforth all dates shall be in calendar year 2018, unless otherwise indicated. Respondent’s letter, which was
sent to the Union via U.S. Mail as well as by fax, also suggested that all further communications be via emails.
JD(SF)–36–19
4
the meeting on February 9 and the starting time of 11 a.m. The email also stated, “we are
working on your information request” (Jt. Exh. 24). On January 31, Garnett sent an email to
Friedland which attached much, but not all, of the information requested by the Union. Among
the information sought by the Union which was not provided was the work locations where
Rhino employed riggers, which the email explained was considered “confidential and proprietary 5
information,” suggesting that the Union was a “competitor” of Rhino (Jt. Exh. 28).5 On
February 2, Friedland responded to Garnett’s January 31 email, in essence disagreeing with
Rhino’s characterization of the Union as a competitor to Rhino and requesting, inter alia, legal
authority in support of such contention. Friedland expressed disappointment at Respondent’s
posture with regard to the information being withheld, and lamented that things were off to such 10
a poor start on the eve of the start of negotiations (Jt. Exh. 29).6 On February 5 Garnett sent
Friedland an email seeking confirmation of the 11 a.m. starting time for the February 9
bargaining meeting and informing her that he had a 4:20 p.m. flight out of Seattle that afternoon
(Jt. Exh. 30).7 On the same day, Friedland responded to Garnett’s email, confirming a starting
time of 11 a.m., and the location of the meeting.15
B. The Bargaining Meetings and Communications between Meetings
The parties had their first bargaining session on February 9, starting shortly after 11 a.m.,
as previously agreed to.8 Present for the Union were Chris “Radar” Bateman (Bateman), who 20
was the Union’s lead negotiator; Friedland, who was the Union’s main note-taker; Sal Ponce, the
Union’s president; Kyle Daley and Brian West, members of the Union (Local 15); Rose Etta
Venetucci, a business representative of IATSE Local 28 (a sister local from Portland); Nicholas
Morales, a member of Local 28; Sandra Englund, an International representative for IATSE; and
Dmitri Iglitzin, the Union’s counsel. Present for Rhino were Garnett, its counsel and lead 25
negotiator; Giek, its CEO; Michelle Smith, Regional Director of Operations, Nevada; James
Acuna, Regional Director of Operations, Colorado; and Travis Medley, Director of Rigging.
According to the testimony of Friedland and based on her bargaining notes (Jt. Exh. 7),
shortly after the meeting began, the Union submitted its proposal regarding the “ground rules”30

5 Since Respondent’s failure to provide, or delay in providing, information to the Union is not alleged as a
violation in the complaint, I see no need to discuss in detail the items that were or were not produced, which were
the issues alleged in another charge not covered by the instant proceedings. Respondent’s assertion that the Union
was its “competitor,” however, is alleged as evidence of bad faith in negotiations, and therefore is discussed above
to provide context for events that transpired later.
6 The email also discussed other issues not germane to the instant case.
7 I note that the timing of Garnett’s 4:20 p.m. flight out of Seattle would thus appear to preclude meeting until 4
p.m., as Garnett had suggested in his earlier email on January 9 (see, Jt. Exh. 21).
8 The parties met on the same building where the Union’s offices are located in Seattle, but on a different suite.
JD(SF)–36–19
5
for the negotiations, which in essence set forth procedural and conduct guidelines for the
negotiations (See, Jt. Exh. 33).9 Garnett requested that all proposals be submitted electronically
on Word (for Windows) format, so that the parties could make modifications and changes that
could be tracked. Bateman summarized the proposed ground rules, and Garnett stated that Rhino
would have “a problem” agreeing to some of them. The parties broke to caucus separately at 5
11:29 a.m., and a couples of minutes later, Friedland emailed Garnett an electronic copy of the
Union’s proposed ground rules.10 At 12:55 p.m., Garnett emailed Friedland a copy of Rhino’s
counter-proposal regarding these rules (Jt. Exh. 34), and about 15 minutes later, the Union
signaled that it was ready to meet again at the bargaining table, which the parties did a few
minutes later, at 1:19 p.m. A discussion followed about Rhino’s counter-proposal regarding the 10
ground rules, primarily its proposal that bargaining be conducted about non-economic issues
first, and its proposal that the parties meet at reasonable times and places mutually agreed, rather
than meeting at least 3 times per month, as the Union had proposed. The parties agreed on a
couple of the ground rules but not on the others. A discussion then ensued about what time
Garnett needed to leave for the airport (in light of his 4:20 p.m. flight). The Union proposed to 15
meet again on the week(s) of February 26, March 5, March 19 and March 26. The parties broke
to caucus at 1:37 p.m., and at 2:25 p.m. Rhino sent the Union (Friedland) a revised proposal
regarding the ground rules, and printed copies were distributed to all the participants. The Rhino
team offered March 29 as the next bargaining date, and then departed at 2:28 p.m.11 No
“substantive proposals,” that is, collective-bargaining contract proposals, were discussed during 20
this meeting, as the meeting was devoted mostly to discussing the proposed ground rules for
bargaining.
Five days later, on February 14, Friedland emailed Garnett informing that the Union
agreed with all of the items in Rhino’s counter-proposal regarding the ground rules, except for 25
the issue of the location of the bargaining sessions. It also agreed with Rhino’s proposed date of
March 29 for the next bargaining session but added that the Union was available for earlier dates
if Rhino was available (Jt. Exh. 37). On February 28, Friedland again emailed Garnett, advising
that the Union had not received a response to either an email sent on February 8 (requesting
information) or the attached email of February 14, as described immediately above. Friedland 30
additionally stated that the Union would like to schedule more—and multiple—bargaining

9 My description of the events that transpired during the February 9 bargaining session, as well as those in the
other bargaining sessions that will follow, is based primarily on the testimony of Friedland and the content of her
bargaining notes, as well as the testimony and bargaining notes of Garnett, and to a lesser extent, the testimony of
Smith—the only persons who testified about the bargaining sessions. These events are not truly in dispute, with one
notable exception that will be discussed below. I note that Friedland’s bargaining notes, which are in evidence,
consist of her contemporaneous handwritten notes and the typewritten version of these notes, transcribed shortly
after the sessions. To the extent that there is any discrepancy between Friedland’s oral testimony and her bargaining
notes, I will generally credit the notes, which were contemporaneous with the events and thus not at the mercy of
recollection. Finally, it should be noted that my description of the bargaining sessions consists of a summary of the
salient events that occurred, not a word-by-word rendition of everything that was said or everything that transpired
during the sessions.
10 It is not clear, from either Friedland’s testimony or her bargaining notes, whether this caucus was requested by
Rhino or the Union, or jointly requested.
11 Prior to departing, in 2 emails clocked at 4:14 p.m. and 4:25 p.m. Central time (the location of Garnett’s email
server) or 2:14 p.m. and 2:25 p.m. Pacific time, Garnett informed Friedland that Rhino had accepted further
modifications to the ground rules made by the Union, except for the issue of location, and proposing March 29 as
the next meeting date (Jt. Exhs. 35; 36)
JD(SF)–36–19
6
sessions in addition to March 29, indicating the Union was available on the weeks of April 2 and
April 9, except for limited time periods during those 2 weeks (Jt. Exh. 38). Garnett did not
respond to this email, so on March 20 Friedland again emailed Garnett, stating that the Union
had not received any response to its emails of February 8, 14, or 28. Friedland requested that
Garnett confirm the March 29 bargaining date, and again requested that Rhino provide additional 5
bargaining dates during the first 2 weeks of April (Jt. Exh. 39) Later that day, Garnett replied by
email to Friedland, confirming the March 29 bargaining date and adding that he needed to check
with his client—when he returned to St. Louis (the location of his office)—regarding additional
bargaining dates (Jt. Exh. 40). Friedland responded that same day, stating that the Union looked
forward to hearing from him, adding “see you on the 29th” (Jt. Exh. 41). On March 28, Garnett 10
emailed Friedland, providing and discussing some of the information the Union had requested
weeks earlier. At the end of the email, Garnett stated “We can also discuss future bargaining
dates tomorrow” (Jt. Exh. 42).
On March 29, the parties had their second bargaining session, starting shortly after 15
11 a.m.12 At the beginning of the meeting, the Union proffered a comprehensive contractual
proposal (Jt. Exh. 43), but before any discussions about this proposal were held, the parties
appear to have spent about 35–40 minutes discussing the Union’s information request. These
discussions were centered on the items yet to be provided by Rhino or on items provided that
needed some clarification and explanation. Some of the discussion also involved Rhino’s claim 20
that the information regarding the locations or venues where it worked was proprietary and
confidential, and about the nature and identity of employers to whom the Union referred riggers
through its dispatch hall. The parties broke for a caucus from 11:40 a.m. to12:14 p.m., then
returned to the table.13 Upon their return, the discussion turned to the Union’s comprehensive
contractual proposal, with the Union (primarily through its main negotiator, Bateman), 25
discussing it article by article, and Rhino asking questions or making comments about these.
This discussion lasted over an hour, until the parties broke to caucus. Before breaking to caucus,
however, the Union inquired about future bargaining dates, which Garnett had earlier promised
to discuss during this session. Garnett stated that Jeff (Giek, Rhino’s CEO), was “not available”
during April, and that they would take a look at dates in May. The parties broke to caucus from 30
1:36 p.m. until 3:06 p.m. and during that time Rhino emailed the Union a copy of its proposed
confidentiality agreement (Jt. Exh. 44). Upon returning to the bargaining table, the Union
indicated it needed additional time to study Rhino’s proposed confidentiality agreement, again
reiterating that the Union did not represent employers, but rather represented employees who
were dispatched to employers. The discussion then turned to future bargaining dates, and the 35
Union offered to meet May 1 and 2, May 6 through May 13, suggesting they were available to
meet Saturdays and Sundays, and also suggesting that it would be helpful to schedule 2–3 dates

12 Present for the Union were some of the same individuals present at the February 9 session: Bateman,
Friedland, Daley, West, Venetucci, Morales and Iglitzin; new attendees were Tim Dawson, Lisa Yimm and Ian
Wright of IATSE Local 28. Present for Rhino were Garnett and Giek.
13 While Friedland’s bargaining notes regarding this session (Jt. Exh. 8) are not clear as to which side requested
this particular caucus, Garnett testified that it was at the Union’s request (Tr. 578). It should be noted that
Friedland’s bargaining notes for each bargaining session, including the March 29 session, denote the total amount of
time devoted to actual bargaining at the table versus the time spent on caucusing. For example, for the March 29
session, Friedland’s notes reflect that the total session lasted 4 hours and 14 minutes, and that 2 hours and 16
minutes of this was spent caucusing. The notes, however, often fail to reflect which side requested a caucus, or
whether it was done bilaterally.
JD(SF)–36–19
7
out. Garnett responded that Giek was not available May 9 through the 11, or on May 13. He
then stated that they would get back to the Union about future dates, hopefully by the following
day. The session ended at 3:14 p.m. because Rhino’s team was returning home that evening.
That evening Friedland emailed Garnett, to reiterate the Union’s point that it did not 5
represent employers and entities with whom Rhino competed against. The email also stated that
the Union would review the confidentiality agreement proposed by Rhino and would respond (Jt.
Exh. 46). Garnett responded via email the next day, March 30, expressing puzzlement at the
Union’s need to state that it did not represent employers (Jt. Exh. 47). On the same day,
March 30, Garnett emailed Friedland to indicate that May 1 would work for Rhino as the next 10
bargaining date (Jt. Exh. 48). Friedland responded that same day (March 30) via email, asking
Garnett if Rhino had any other dates available, as the Union would like to “get several on the
calendar.” Garnett did not respond to this request14 On April 24, Friedland emailed Garnett to
confirm the May 1 bargaining session, and again asked “Any additional dates?” (Jt. Exh. 55).
On the same day, Garnett responded to Friedland, confirming that Rhino would be present on 15
May 1, at 11 a.m. Garnett did not respond to Friedland’s question regarding additional dates (Jt.
Exh. 56).15
The parties met again for bargaining on May 1, but instead of starting at 11 a.m., as had
been agreed to, the session started at 11:55 a.m., because Rhino’s representatives were having 20
breakfast.16 Initially, Garnett came into the meeting room at 11:05 a.m., and stated that Rhino’s
team was having breakfast and would return shortly. He also stated that Rhino wanted to discuss
the confidentiality agreement (proffered in the last meeting) first, the Union informed him that
they had a counter proposal on that and handed him a hardcopy, followed by an electronic copy
via email at 11:21 a.m. (Jt. Exh. 57).17 Garnett returned with the rest of Rhino’s team at 11:55 25
a.m., and for the next couple of hours the discussion centered on the confidentiality agreement

14 Garnett’s March 30 email (Jt. Exh. 48) did not state why other dates, among the multiple ones suggested by
the Union, would not be available. In this regard, it should be noted that Respondent prepared a calendar, admitted
as Respondent’s exhibit 2(b) (R. Exh. 2(b)), that showed which bargaining dates had been proposed by the Union
(UP Date), as well as those proposed by Rhino (CP Date) during the period from December 2017 through
February 2019. The calendar also indicates why Rhino’s various bargaining representatives were not available on
different dates. I note that there is no indication that Rhino’s representatives were unavailable on May 2, for
example, the day following the May 1 date Rhino accepted. During Garnett’s testimony, I specifically asked him
why Rhino had not also accepted May 2 that had also been proposed by the Union but he had no explanation
(Tr. 731).
15 Between March 29 and the next bargaining session on May 1, the parties also exchanged several emails
regarding both the Union’s and Rhino’s request for information from each other. I do not see these exchanges as
material to the issues herein and therefore will not discuss these in detail, as there are no allegations in the complaint
regarding Respondent’s failure to provide, or delay in providing, information requested by the Union. While the
parties arguably spent a significant amount of time during the bargaining sessions discussing the information
requests, there is likewise no allegation that this conduct was unlawful, since both parties voluntarily did so.
16 The Union acquiesced to the 11 a.m. starting time, as in earlier meetings, in order to accommodate Rhino’s
team traveling schedule, because some of them were apparently flying into Seattle that same morning (Tr. 104).
Present for the Union at this session were Bateman, Friedland, Daley, Venetucci, Dawson, Yimm, Wright, and
Iglitzin. Present for Rhino were Garnett, Giek, Smith and Medley.
17 The email admitted as Jt. Exh. 57 has a time stamp of 1:21 p.m., but that is actually Central Time, where
Garnett’s server resides. The time of delivery in Seattle was 11:21. a.m. Garnett responded a few minutes later,
indicating that Rhino would work om a counter offer (Jt. Exh. 58).
JD(SF)–36–19
8
and Rhino’s request for information from the Union.18 During this period, the parties broke to
caucus twice, the first one from 12:03 to 12:17 p.m. to discuss the confidentiality agreement, and
a longer caucus from 12:27 p.m. until 2:28 p.m. to prepare counter-proposals. At 1:58 p.m.,
while still caucusing, Rhino emailed the Union a counter-proposal to the Union’s March 29
contractual proposal.19 After the approximately 2-hour caucus, the parties resume face-to-face 5
negotiations at 2:28 p.m., and discussed Rhino’s contractual counter-proposal, with Rhino
explaining the changes it was proposing in the various articles, which numerically tracked the
articles in the Union’s initial proposal. Another caucus was taken at 2:46 p.m., and at 3:16 p.m.,
Smith advised the Union that Rhino’s representatives needed to leave for the airport by 3:30
p.m., so the parties re-convened at the table. Another brief discussion ensued regarding the 10
contractual proposals, with Garnett stating they were not agreeable to some of the other
proposals and that Rhino would get back to the Union regarding others yet to be discussed.
As noted earlier, although the above-described events are not truly in dispute, what
occurred next, before the bargaining session ended, is disputed. According to the testimony of 15
Friedland, the discussion then turned to future bargaining dates. Friedland testified, and her
bargaining notes confirm, that Rhino’s CEO, Giek, then stated that he was available to meet on
June 28 and 29, as well as July 2, 5, 6, 12 and 13. Garnett said that he was “iffy” about June 28,
less iffy on (or about) June 29. Smith said she was “out” (unavailable) July 5 and 6. The Union
then stated that it would check its calendars and get back to Rhino about this. Garnett, on the 20
other hand, testified that Giek never offered (future) bargaining dates at the May 1 session,
explaining that he “would never allow that,” implying that he was the chief spokesperson for
Rhino (and that he had presumably advised his client to let him speak for Rhino).20 I note,
however, that Friedland’s bargaining notes support her version, and that neither Giek nor Smith,
who testified about what transpired during bargaining, addressed this issue in their testimony, 25
and thus did not corroborate Garnett.21 Finally, I note that in a follow-up email sent to Garnett
that same evening, Friedland stated: “In connection with the dates you gave us for subsequently
(sic) bargaining sessions, we are available on the following…,” and lists June 28, and July 2 and
12 (Jt. Exh. 64). Garnett never sent a reply correcting Friedland’s version of events.
Accordingly, I credit Friedland and find that Giek offered the dates described above. The May 1 30

18 During this time period, the Union proffered another counter-proposal to the confidentiality agreement (Jt.
Exh. 62), as well as a comprehensive written response to Rhino’s request for information (Jt. Exh. 61).
19 During the trial, as well as in its brief, the General Counsel insinuates that Garnett was improperly using
caucusing time to draft proposals, and that Rhino’s contractual counter-proposal in this instance was drafted during
this period—an example supporting the complaint’s allegation that Respondent had “failed and refused to come to
bargaining sessions with prepared proposals” (see Complaint, Par. 8(a)(iv)). Garnett testified that he had drafted this
counter-proposal prior to the May 1 session and proffered a computer time-stamp showing that the document was
indeed created prior to May 1 (R. Exh. 6). Garnett further testified that while he had intended to proffer the counter-
proposal earlier in the session, but the parties got side-tracked discussing the ground rules and confidentiality
agreement. I credit Garnett’s testimony, which was supported by the computer time-stamp and the circumstances.
As will be discussed more thoroughly below, however, it is ultimately irrelevant if Garnett had indeed drafted the
counter-proposal during caucus time, or had not drafted it at all, because this allegation is simply inconsistent with
Board law regarding the requirements of good faith bargaining and lacks merit.
20 I do not find this argument very convincing, as clients who have a mind of their own and do not always follow
counsels’ advice are legend and the bane of attorneys’ existence.
21 Garnett’s May 1 bargaining notes (R. Exh. 5) reflect that the parties discussed June 28 and 29, as well as
July 2, 12 and 13 as future bargaining dates, but do not reflect who suggested those dates to begin with.
JD(SF)–36–19
9
bargaining session then ended at 3:24 p.m., when Rhino’s representatives departed for the
airport.22
As briefly noted above, on the evening of May 1 Friedland emailed Garnett indicating
that among the future bargaining dates that had been proposed by Rhino (specifically, by Giek), 5
the Union was available on June 28, as well as July 2 and 12 (Jt. Exh. 64). Garnett responded
that same evening via email, choosing July 12 for the next bargaining session (Jt. Exh. 65).
Friedland responded to Garnett within the hour, stating as follows: “We were actually hoping for
all three dates. If you are saying you can’t meet until July 12, we would appreciate your letting
us know about additional dates your team is available” (Jt. Exh. 66). On May 7, Garnett 10
responded to Friedland’s request for additional bargaining dates as follows: “As I mentioned at
the table, June 28th is not good for me, I’m in New Orleans. July 2nd is also the Monday of the
July 4th holiday. If you want to have discussions by phone on the 2nd, we can arrange for that.
Let me know.” According to Friedland, Garnett never responded to her request that his team
suggest or provide additional dates if they were unavailable for the dates discussed at the May 1 15
session and the email correspondence that followed, and there is no record that he did. On May
17 Friedland emailed Garnett, declining his offer to meet via telephone on July 2, indicating that
the Union believed face to face negotiations would be more fruitful. Friedland confirmed the
Union’s agreement to meet on July 12 at the offices of Garnett’s law firm in downtown Seattle,
as Garnett had requested. Friedland concluded her email with the following message: “Again, 20
we would like to set multiple dates rather than do so after each session. So if your team can
review their calendars and let us know what other dates work, we will respond promptly as we
did following our last session” (Jt. Exh. 72). Garnett replied on the same date, stating that while
he agreed that face to face negotiations have been fruitful, some issues could be discussed via
telephone or using on-line conferring services like “WebEx” (Jt. Exh.73). Garnett never 25
addressed Friedland’s repeated request that Rhino’s team provide additional “multiple” dates for
future bargaining. Friedland responded the following day, May 18, with the following message:
“11a-4P? Other dates?” (Jt. Exh. 74). Garnett responded that same afternoon, confirming that
they would start the July 12 bargaining session at 11 am, as in the past, but might need to end the
session at 3 or 3:30 pm, depending on Rhino’s team flight schedules. He repeated his offer to 30
meet via conference call prior to the July 12 session, in order to discuss “discreet” issues such as

22 Friedland testified, and calculations that appear on her bargaining notes reflect, that the parties sent 3 hours
and 35 minutes caucusing during the May 1 bargaining session, while spending only a total of 44 minutes engaged
in face-to-face discussions at the table. Friedland admitted, however, that she wasn’t sure which side requested to
caucus on any given occasion (Tr. 124–125), and it isn’t clear from her notes. Friedland also testified that it was
during the May 1 session that the Union first learned for the first time (from one of the attending bargaining
committee members, Lisa Yimm) that Rhino had unilaterally implemented a new policy regarding the wearing of
safety boots by riggers. This will be discussed below, in a separate section regarding that allegation.
JD(SF)–36–19
10
safety boots (Jt. Exh. 75). Again, he did not specifically respond to Friedland’s request for
additional “multiple” bargaining dates for future sessions.23
The parties had their next bargaining session on July 12, in Seattle.24 According to the
testimony of both Friedland and Garnett, and their respective bargaining notes (Jt. Exhs. 10; 15;5
R. Exh. 7), shortly after the session began the discussion turned to two issues: (1) the information
request by the Union, and whether Rhino had complied with such request(s); and (2) the issue of
the policy regarding safety boots that Rhino had implemented in January, and recently rescinded,
as discussed below. The discussion of these two topics, which the bargaining notes reflect
turned contentious and argumentative at times, consumed the better part of the session, from 10
about 11:20 am to about 3:19 pm, excluding time taken out for caucusing.25 It is undisputed that
the parties did not exchange “substantive” (or contractual) proposals until 3:19 pm, when the
Union sent Garnett a proposal regarding article 10 via email (Jt. Exh. 96). About an hour later,
Garnett forwarded Rhino’s comprehensive contractual counter-proposal to the Union (Jt. Exh.
97). The Union asked for hard copies of Rhino’s proposal, which were provided shortly 15
afterwards. Unlike prior bargaining sessions, which had ended in mid-afternoon to
accommodate Rhino’s travel needs, the July 12 session went to 5 pm, when the Union departed.
Before the session ended, the Union (by Bateman) emailed Garnett, proposing August 15th,
20th, 27th, 29th, and 31st as possible dates for the following bargaining session (Jt. Exh. 101).
20

23 Between May 1 and July 13, in addition to the emails between Friedland and Garnett discussed above, the
Union and Rhino had numerous additional communications via emails and letters attached thereto, primarily
between Garnett (and/or associates) and the Union’s counsel, Dmitri Iglitzin (and/or associates). These
communications dealt primarily with the requests for information made by the Union or by Rhino, including a
tentative confidentiality agreement reached between the parties to resolve one of the outstanding information items
requested by the Union—and whether such agreement might result in the withdrawal of charges filed with the Board
by the Union regarding its information requests. In that regard, I take judicial notice that on April 27, 2018, the
Regional Director had issued a complaint in Case 19–CA–213768, alleging that Rhino had failed and refused to
provide information requested by the Union, and a hearing was scheduled to commence on July 17. On July 16
Rhino entered into a settlement agreement with the Region in that case, and the hearing was postponed and
eventually cancelled. These communications between the parties also addressed the issue of the policy that Rhino
had implemented regarding work safety boots, as discussed below (see, Jt. Exhs. 67; 69; 70; 71; 76; 77; 78; 79; 80;
81; 82; 83; 84; 85; 86; 87; 88; 89; 90; 91; 92; 93; 94; 95; 99; 100; 107; 108; 109; and 110). While some of these
communications may shed some light or provide background or context regarding the issues covered by the instant
complaint, I do not find it necessary to discuss them in detail, as they will ultimately be of little, if any, value in
determining the merit of the allegations before me.
24 Present for the Union were Bateman, Friedland, Daley, West, Venetucci, Dawson, Wright and Iglitzin.
Present for Rhino were Garnett, Giek, Smith, and Medley.
25 Friedland’s bargaining notes indicate that Garnett initially brought up these two subjects, stating that Rhino
wanted to discuss these two issues. The notes also reflect, however, that the Union acquiesced in these discussions,
which it could have stopped by assertively insisting that these topics were not mandatory subjects of bargaining.
JD(SF)–36–19
11
On July 18, Garnett responded, choosing August 31st as the sole date for the next bargaining
session (Jt. Exh. 112).26
The parties met again in Seattle to bargain on August 31, as agreed to.27 Friedland did
not testify about the events of these meeting, and Garnett did so only in very brief fashion, so the5
summary that follows is solely based on Friedland’s and Garnett’s bargaining notes (GC Exh. 6;
R. Exh. 10).28 The meeting started shortly after 9 a.m. and ended around 4 pm, when the Rhino
team left. During the session, the parties primarily discussed article 1 (Recognition) and its
various subdivisions, as well as article 3 (Hiring and Staffing of Riggers). Much discussion and
spirited debate was had particularly with regard the Union’s proposed security clause (article 1.2,10
which Rhino vigorously opposed), as well as the various parts of article 3. By the end of the
session, the parties had tentatively agreed to parts of article 1.1 (the preamble or introduction
about Employees Included), parts of article 1.2 (Union and Company rights), Article 1.4 (Non-
Discrimination clause), and parts of article 3.1 (Staffing and Hiring of Riggers). During the
meeting, Rhino also proposed modifying the agreed-upon “ground rules,” proposing that the 15
parties meet once per month in person and once per month via WebEx (electronic
teleconference). The Union re-iterated its position that wanted to bargain face to face. Before
the meeting ended, the Union proposed to meet again on September 28th, October 15th and/or
16th. Rhino rejected September 28th because it was Smith’s wedding anniversary, and turned
down October 15 and 16 because of Giek’ s scheduled surgery, which would make him unable to 20
travel for 6 to 7 weeks, pursuant to medical advice. The Union stated that it would look at other
possible dates, and the meeting ended shortly thereafter. A few minutes later, Friedland emailed
Garnett, proposing September 15th (a Saturday), September 27th, September 29th and 30th

26 On July 12 and the days that followed, Bateman and Garnett exchanged emails regarding the changes that
Rhino had made in its July 12 contractual counter-proposals, with Bateman essentially claiming that they were
confusing and difficult to follow, and Garnett disagreeing and explaining the proposals—and offering to further
discuss these on the August 31 meeting (Jt. Exhs. 105; 106). The record also shows that Bateman on July 25 sent
Garnett an email accusing Rhino of dilatory tactics during the July 12 bargaining session, and Garnett denying such
assertion in his response dated August 15 (Jt. Exh. 113). It is notable that in her brief, the General Counsel quotes at
length from Bateman’s email to Garnett, as if the events he described therein were established facts. They are not;
indeed, Bateman’s rendition of events in his email is classic hearsay. Bateman did not testify, and thus did not
subject himself to cross-examination, which is precisely what the rule against hearsay is meant to prevent. Quite
simply, if the General Counsel felt Bateman’s rendition of what occurred on July 12 was important, he should have
been called to the stand. Accordingly, I consider these emails of scant probative value, representing little more than
the parties’ opinions. I note that Friedland’s testimony regarding the July 12 bargaining session was also very
limited, so I must rely primarily on Friedland’s and Garnett’s bargaining notes to determine what occurred at that
session.
27 As noted earlier, in the complaint, the General Counsel had initially alleged that Respondent’s unlawful
conduct took place through the first 4 bargaining sessions, concluding on July 12. At the hearing, the General
Counsel amended the complaint to include Respondent’s bargaining conduct through the date of the hearing in
December. As discussed below, the parties held only two more bargaining sessions during this period, on August 31
and October 11. Present for the Union for the August 31 session were: Bateman, Friedland, Daley, Maynard Smith,
Venetucci, Wright, and Iglitzin. Present for Rhino were: Garnett, Giek and Smith.
28 Thus, Garnett’s testimony about the October 11 session was limited to his stating that the parties exchanged
proposals, had “spirited” discussions about them, and reached tentative agreements on some.
JD(SF)–36–19
12
(Saturday/Sunday), and October 11th as additional bargaining dates. Later that evening, Garnett
responded, choosing October 11th as the only day among the ones proposed (Jt. Exh. 120).29
On September 5, Garnett emailed Friedland to confirm that space was available at his firm’s
Seattle office on October 11, from 7 am to 3pm (Jt. Exh. 122). On September 26, Friedland
responded that the Union would be available starting at 9 am, but was willing to go until 5 pm 5
rather than 3 pm. On the same day, Garnett responded that 9 am was acceptable as the starting
time, but that the session would have to end at 3 pm because of Rhino’s team flight schedules (Jt.
Exh. 123).
The parties met again in Seattle on October 11, starting shortly after 9 am, as agreed to. 10
As with the August 31 bargaining session, there is little testimony as to what occurred during this
session, with no testimony from Friedland (or anyone else on the Union’s side), and only brief
testimony from Garnett about it. Thus, my summary is based primarily on Friedland’s and
Garnett’s bargaining notes.30 The parties initially had discussions about the formatting of the
counter-proposals submitted by Rhino, which apparently did not follow the formatting of the 15
original proposals by the Union, and had consequently resulted in some confusion or uncertainty
on the Union’s part as to exactly what had been tentatively agreed to in the prior session. As the
result of these discussions, Garnett re-formatted some of the previously submitted proposals, and
the Union thereafter proffered additional proposals regarding article 1.2, parts of which had been
previously agreed upon, as well as article 1.3. Rhino rejected the Union’s article 1.3 proposal, 20
and after a caucus submitted a counter-proposal on that article. Eventually, the parties
tentatively agreed to language in that article, after further discussions. The Union also made a
proposal regarding article 3.1 (Staffing of calls), which engendered much discussion, and the
parties then broke to caucus again.31 After the caucus, Rhino made a counter proposal regarding
article 3.1, but no agreement was reached on this article. By the end of the session, the parties 25
had tentative agreements on article 1.1 (Employees Included), article 1.4 (Non-Discrimination),
and article 1.3 (Calls and Work not Covered), although some of these agreements appears to
have been clarification of the exact language previously agreed to. Prior to the end of the
session, the Union proposed December 17, 18, 20 and 21, and January 3, 4 and 8, 2019, for
future bargaining dates.32 Garnett stated he would forward the dates to Smith and Giek, who had 30
departed a few minutes earlier for the airport. He again proposed that the parties could bargain
via WebEx video conference, an offer that the Union rejected. The session ended at 3:30 pm.

29 In his response, as in previous occasions, Garnett did not offer any explanations as to why no other dates were
not acceptable to Rhino. Garnett testified, however, that he could not negotiate on weekends because it would
interfere with a second job as a cycling instructor (at his home in St. Louis), and because Giek and Smith wanted to
spend time with their families on weekends (Tr. 603–604; 665–666; 742–743; 760).
30 Friedland’s handwritten bargaining notes are contained in Joint Exhibit 12 (Jt. Exh. 12), with the typewritten
version in evidence as General Counsel’s Exhibit 7 (GC Exh. 7). I rely primarily on the typewritten version, since
the handwritten version is difficult to decipher at times. Garnett’s handwritten bargaining notes, somewhat more
readable but less detailed and copious than Friedland’s, appear as Respondent’s Exhibit 10 (R. Exh. 10).
31 In her post-hearing brief, the General Counsel repeatedly implies that in all the bargaining sessions Rhino was
abusing the caucus process by taking—or wasting—too much time to discuss and prepare counter proposals it
should have already discussed and prepared. In addition to the legal reasons why this argument lacks merit, as will
be discussed below, the simple fact is that in most instances the record is not clear as to which side requested the
caucus, and it also fails to show that the Union objected to the amount of time Rhino was using in its caucuses—at
least at the time.
32 As discussed above, Rhino had advised that Giek would be unavailable for 6–7 weeks starting in mid-October
due to his surgery.
JD(SF)–36–19
13
Later the same evening, Garnett emailed Union Counsel Iglitzin, proposing December 11
as the date for the next bargaining session. Iglitzin was uncertain about December 11, since it
was the day after the hearing in the instant case was scheduled to begin, and no one at the time
was certain how long the hearing would last. Eventually, as the date grew closer and the parties 5
realized the hearing might last all week, the parties decided to choose a later date.
C. Rhino’s Implementation of a New Work Boots Policy
It is undisputed that prior to January 1, 2018, Rhino had a policy, as contained in its 10
Handbook, which stated “[b]lack (or dark near black in color) steel toe boots (preferred) or
sturdy work boots that protect the feet and toes are required on all calls,” which applied to all
employees, including bargaining unit employees (Jt. Exh. 139). While this policy, according to
Giek’s testimony, required the wearing of boots, steel-toed or otherwise (Tr. 767), in practice
riggers were often allowed to wear other shoes that would permit them to comfortably work up 15
high. Thus, Lisa Yimm testified that “up-riggers” (riggers that work in elevated settings) often
wore tennis shoes or similar footwear, which had better grip and was less cumbersome than
boots (Tr. 472–473; 510–511).33 In is also undisputed that on December 7, 2017, Rhino sent an
email to its employees which, in relevant part, stated: “Beginning January 1, 2018, Rhino will
REQUIRE all employees to wear steel-composite toe over-the-ankle works boots to every job 20
(unless otherwise instructed). Employees who show up to work without proper footwear will be
sent home” (emphasis in original) (Jt. Exh. 137).34
Respondent did not notify or bargain with the Union about this change in the safety boot
policy, which was implemented on January 1, 2018. Indeed, Giek admitted that the Union was 25
not notified because he did not believe this change was a “big deal” (Tr. 769). The Union did
not find out about this change of policy until one of the riggers in the bargaining unit, Yimm,
notified it during the May 1 bargaining session.35 Finally, it is undisputed that Rhino rescinded
this policy, as it pertained to bargaining unit employees, on July 5, 2018 (Jt. Exh. 138).
30
IV. ANALYSIS
As briefly discussed above, the complaint alleges two distinct categories of violations
regarding Respondent’s duty, under Section 8(a)(5) of the Act, to bargain in good faith with the
Union. The first category involves Respondent’s alleged conduct during collective-bargaining 35
negotiations and the scheduling of such negotiations, and five distinct types of conduct are
alleged under this category. The second category of conduct alleged to violate Section 8(a)(5) is
Respondent’s unilateral implementation of the (work) boots policy on or about January 1, 2018,

33 I credit Yimm’s testimony, which was not contradicted and was based on her own observations. In that
regard, this formerly allowed practice may explain why the new policy announced on December 2017, as described
immediately below, may have specifically mandated “over-the-ankle” boots, a term or definition that the prior
policy did not contain.
34 The email informing of the new requirement contained a list of links directing individuals to “acceptable work
boots” that could be purchased to comply with the new requirement. According to the testimony of Giek, the cost of
these boots would be anywhere from $35 to $100 or more, depending on the brand and style (Tr. 777).
35 As discussed above, this became a “hot topic” during the May 1 and particularly the July 12 bargaining
sessions, and resulted in the Union filing a charge with the Board in one of the above-captioned cases.
JD(SF)–36–19
14
which was later rescinded in July of that year. I will first discuss the allegations involving
Respondent’s conduct during bargaining.
A. Respondent’s Conduct During Bargaining or the Scheduling of Such Bargaining
5
Paragraph 8(a) subsections (i) through (v) of the complaint alleges that Respondent
engaged in bad faith bargaining in violation of Section 8(a) (5) of the Act when it:
1. Failed and refused to meet with the Union to bargain on a regular basis;
2. Failed and refused to meet with the Union for an appropriate amount of time to 10
bargain;
3. Failed and refused to engage in meaningful bargaining during negotiations;
4. Failed and refused to come to bargaining sessions with prepared proposals; and
5. Insisted on claiming the Union is a competitor of Respondent despite Board decisions
finding it to be a labor organization.15
I will discuss these allegations in the order they appear above.
1. The allegation that Respondent failed and refused to meet
with the Union to bargain on a regular basis.20
The General Counsel alleges that Respondent, during the course of negotiations during
calendar year 2018, met with the Union only six (6) times, with the first negotiation occurring on
February 9 and the last one on October 11.36 The General Counsel argues that this meager
number of bargaining sessions was the result of Respondent’s dilatory tactics, such as not 25
responding the Union’s multiple requests to schedule more than one bargaining session at a time,
or for multiple (or consecutive) days of bargaining, and then only bargaining for about half a day
each time because Respondent’s representatives had to both fly in and flight out on the day it
chose for bargaining. The General Counsel further argues that by strictly limiting the number of
times it agreed to meet, in addition to its other conduct, Respondent displayed bad faith. 30
Respondent, on the other hand, argues that in addition to agreeing to meet with the Union in
person on six occasions during 2018, it repeatedly offered to supplement the in-person meetings
by bargaining via “WebEx,” a video tele-conference system, an offer that the Union rejected,
because it preferred to meet in person. It further argues that using the totality-of-the-
circumstances test under Board precedent, it did not engage in bad faith dilatory tactics.3735
Finally, Respondent argues that the Union never insisted or pressed Respondent for more
bargaining dates and acquiesced to the schedule set. For the reasons set forth below, I have
concluded that the General Counsel has the better argument and that this allegation has merit.

36 As discussed in the facts section, the parties met on February 9, March 29, May 1, July 12, August 31, and
October 11, or on average about once every 6–7 weeks.
37 Although it did not specifically mention it as a defense, throughout the record Respondent introduced
evidence, either through the testimony of its witnesses or through exhibits such as the calendar admitted as
Respondent’s Exhibit 1, that clearly suggested that its bargaining representatives’ busy schedules and the geographic
location of their residences made it extremely difficult and inconvenient to schedule more frequent or lengthier
bargaining sessions (See, e.g. Respondent’s posttrial brief, p. 33–34). Thus, testimony was proffered that Garnett,
Respondent’s counsel and lead negotiator, had to travel from his residence in St. Louis to Seattle (and back); Giek,
had to travel from San Diego; Smith had to travel from Las Vegas; and Acuna had to travel from Denver.
JD(SF)–36–19
15
Section 8(d) of the Act mandates that parties meet at “reasonable times,” a term which
although not defined in the Act, has been repeatedly interpreted by the Board and the courts to
mean that parties are required to meet for bargaining at reasonable intervals, and without
unreasonable delays. Richard Mellow Elec. Contractors Corp., 327 NLRB 1112 (1018 (1999); 5
Fern Terrace Lodge of Bowling Green, 297 NLRB 8 (1989); Teamsters Local 122 (Busch &
Co.), 334 NLRB 1190 (2001); Sparks Nugget, Inc. d/b/a John Acuaga’s Nugget v. NLRB, 968
F.2d 991, 995 (9th Cir. 1992). There are no rigid or precise rules setting forth the number,
frequency or duration of bargaining meetings necessary to satisfy the parties’ obligations under
Section 8(d), but parameters exist by which to judge the parties’ good faith in these endeavors.10
The Board thus looks at a number of factors, such as, inter alia, the number of meetings, whether
the employer engaged in dilatory tactics, whether the union requested more frequent meetings,
and whether the parties placed other limits in the times they could bargain. Calex Corp., 322
NLRB 977, 978 (1997), enfd. 144 F.3d 904 (6th Cir. 1998); Barclay Caterers, Inc., 308 NLRB
1025 (1992); People Care, Inc., 327 NLRB 814 (1999).15
As briefly mentioned above, the parties met only six times for negotiations during the
course of 2018, but this meager number of meetings did not result from the Union’s lack of
efforts to meet much more often. Indeed, the record shows that the Union consistently and
repeatedly requested additional bargaining sessions from Respondent, requests which fell on deaf 20
ears and were simply ignored. When Respondent finally responded to some of these requests,
usually 6 to 8 weeks later, its representatives’ calendars—surprise—were already full. Thus, on
January 9, after the parties agreed to have their first session on February 9, the Union requested
that “everyone” bring their calendars to the February 9 meeting, so that additional “multiple
bargaining dates” (emphasis supplied) could be scheduled at that meeting. At the February 9 25
meeting, the Union proposed additional meetings during the weeks of February 26, March 5,
March 19, and March 26 (emphasis supplied). Out of the approximately 20 possible bargaining
dates that the Union proposed, Respondent chose only 1 day, March 29, one of the last days of
those suggested. As discussed below, this soon became a pattern, with the Union proposing
multiple future bargaining dates, and Respondent choosing only one date among the many 30
offered—and (with one notable exception) never proffering any dates of its own. Five days later,
on February 14, the Union emailed Respondent (Garnett) that it was available on additional
earlier dates. There was no response. Two weeks later, on February 28, the Union emailed
again, indicating that it received no response, and again requesting “multiple bargaining dates,”
and further proposing the weeks of April 2 and 9 for bargaining—with some dates on those 35
weeks excepted. There was no response. On March 20, the Union emailed again, noting that
Respondent had not responded to its earlier emails, and requested that it provide additional
bargaining dates during the weeks of April 2 and 9. Later that day, Garnett responded that he
would “check with his client” when he returned to St. Louis (his office) regarding additional
bargaining dates.38 Eight days later, on March 28, the day before the scheduled March 29 40
bargaining meeting, Garnett emailed the Union, suggesting that future bargaining dates should be
discussed the following day, at the meeting.

38 Thus, Garnett was finally checking with his client about additional bargaining dates some 6 weeks after the
Union initially requested additional dates in its February 14 email, which was followed by multiple similar requests,
which were similarly ignored.
JD(SF)–36–19
16
The next day, during the March 29 meeting, the Union brought up the subject of future
bargaining dates. Garnett stated that Jeff Giek (Respondent’s CEO) was “not available” during
April. The Union then proposed meeting on May 1 and 2, as well as May 6 through 13,
indicating it was available to meet Saturdays and Sundays—and again proposing that the parties
schedule 2–3 future bargaining dates at once. Garnett responded that Giek was not available 5
May 9 through the 11, or May 11 either, and that he would “get back” to the Union about future
dates, hopefully by the following day.39 The following day, March 30, Garnett emailed the
Union, indicating that Respondent was available to bargain on May 1, the only day chosen
among the many proffered by the Union.40 The Union responded on that same day, again asking
if Respondent had any other dates available, because the Union wanted to get several dates 10
booked. There was no response. On April 24, the Union emailed Respondent to confirm the
May 1 bargaining date, and again asked “any additional dates?” Garnett responded later on the
same day, confirming the May 1 bargaining date—and ignoring the request for additional dates.
Towards the end of the May 1 bargaining meeting, the subject turned to future bargaining 15
dates. Unlike in past, where it had always been the Union proposing future or additional
bargaining dates, Giek spoke up and stated that he would be available to meet on June 28 and 29,
as well as July 2, 5, 6, 12 and 13. Other members of his bargaining team, namely Garnett and
Smith, quickly intervened, however, and stated they were not available on some of those dates.41
The Union then stated that it would get back to Respondent regarding the dates mentioned. That 20
same evening the Union emailed Garnett, indicating that the union was available on June 28, as
well as July 2 and 12. Garnett responded that same evening (May 1), choosing only July 12
among the dates that the Union had suggested, based on the dates that had been initially
proffered by Giek. Minutes afterwards, the Union responded, stating that they had hoped to meet
on all 3 dates—and requesting that if Respondent could not meet earlier than July 12, to suggest 25
additional dates. Garnett responded shortly afterward, explaining that he was unavailable on
June 28 because he was scheduled to be in New Orleans, and rejected July 2 because it fell on
the Monday prior to July 4—implying that it was too inconvenient to travel close to a holiday—
and offering to bargain over the phone on July 2 instead. Notably, Garnett (and Smith)
completely neutralized Giek’s unexpected offer to be available on certain dates, and Garnett once 30
again ignored the Union’s request to provide additional dates. On May 17, the Union emailed
Garnett again, declining Garnett’s offer to bargain over the phone (on July 2), indicating that
face to face meetings were preferable. The Union then confirmed its availability to bargain on
July 12, and again expressed its desire to set up multiple dates in advance, rather than waiting
until the next bargaining session (still 2 months away) to do so. It asked that Respondent review 35
its calendars to suggest other bargaining dates, to which the Union would promptly respond.
Garnett responded later on the same date, again offering to bargain over the phone or via WebEx.

39 This scenario and sequence of events strongly suggests that Garnett, contrary to his earlier suggestion, had not
come to the March 29 meeting prepared to discuss future bargaining dates.
40 According to the calendar introduced into evidence by Respondent (R. Exh. 1), Respondent had no conflicts
and was available the following day, May 2, but never offered to bargain on that day. When asked why, Garnett had
no explanation.
41 As noted earlier, Giek’s proposal regarding future bargaining dates apparently caught Garnett—who denied
this occurred—by surprise, since he was the lead negotiator and spokesperson for Respondent. Nevertheless, this
unexpected offer by Giek was quickly neutralized by Garnett and Smith. In any event, Giek’s offer was not
generous in the first place, since the earliest bargaining date proffered was some 8 weeks away—despite the Union
having begged for additional dates for several weeks prior.
JD(SF)–36–19
17
He ignored the Union’s request to provide additional dates for face to face bargaining. The next
day, May 18, the Union emailed Garnett, asking whether the July 12 meeting would be from 11
am to 4 pm, as in past bargaining sessions. It then asked again for future bargaining dates.
Garnett responded on the same day, indicating that the July 12 session would have to end at 3 or
3:30 pm because of their return flight schedules. He again ignored the Union’s request for 5
additional bargaining dates.
On July 12, the parties met again. Towards the end of the session, via email, the Union
proposed August 15, 20, 27, 29 and 31 for future bargaining dates. Six days later, on July 18,
Garnett responded, choosing only August 31 among the dates proposed. The parties met again 10
on August 31. During the course of the meeting, Respondent proposed to amend the “ground
rules” that the parties had agreed to in February, proposing that the parties meet to bargain once
per month in person and once per month via WebEx. The Union reiterated its preference for in-
person meetings, declining to bargain via WebEx. It offered to meet on September 28 and
October 15 and 16. Respondent rejected September 28 because it was Smith’s wedding 15
anniversary, as well as October 15–16 because Giek was scheduled for surgery. Shortly
afterward, while the parties were still meeting, the Union, via email, proposed to meet September
15, 27, 29 and 30, as well as October 11. Some of these dates, namely September 15 and
September 29–30, fell on weekends—which Garnett had indicated he was unwilling to consider,
because it interfered with his cycling lessons or other personal matters. Later the same evening, 20
Garnett responded via email, choosing only October 11 among the dates proffered by the Union.
Respondent had also notified the Union that CEO Giek would not be able to travel for about 6–7
weeks following his mid-October surgery, so the Union proposed meeting again on multiple
dates in December or early January. Responded offered December 11 for the next bargaining
session, which was the day after the scheduled start of the hearing in the instant case.25
Although the above-described chronicle of events may appear repetitive of the events
already described in more detail in the Facts section above, such repetition is necessary to
highlight and underscore Respondent’s scheduling strategy. I use the word “strategy”
deliberately, because I find that Respondent’s conduct in this regard was not by fluke or 30
accident, but rather the result of a carefully calibrated strategy of rationing bargaining sessions so
as to keep them to a minimum—while maintaining the appearance of cooperation necessary to
avoid clearly signaling bad faith. The Union repeatedly requested, often 6 to 8 weeks prior to the
next scheduled bargaining session, that Respondent proffer additional and multiple dates for
future bargaining. These multiple and repeated advance requests were simply ignored by 35
Garnett, who then waited until the next bargaining session to discuss the topic—by which time,
of course, the availability of Respondent’s bargaining representatives (including his own) was
extremely limited, well into the future.42 In light of this, it is apparent that Respondent was
deliberately controlling and slowing down the tempo of negotiations, keeping them on a short
leash—a very short leash—so as to stymie the chances of success. This dilatory tactic is not only 40

42 Indeed, even by the time the next bargaining session arrived, Garnett often appeared to be unprepared to
discuss the topic, and did not respond to the Union’s proffered bargaining dates until after the session. Notably,
Garnett, by his own admission, is a very experienced labor attorney, having negotiated numerous collective-
bargaining agreements in his approximately 40 years of practice. He conceded that initial collective-bargaining
agreements typically take much longer to negotiate, because, as he put it, “every word of every sentence of every
paragraph has to be negotiated” (Tr. 726).
JD(SF)–36–19
18
apparent by Respondent’s refusal to respond to the Union’s multiple requests for additional
bargaining dates, but also by its strategy of never counter-offering dates of its own to signal
when it was available—despite the Union’s multiple requests that it do so. Thus, Respondent’s
strategy was to simply say yes or no (mostly no’s) to the dates proffered by the Union, and then
waiting for the Union to proffer more dates—which it would then also reject, without proffering 5
alternatives. I conclude this strategy evidences bad faith. Storer Communications, 294 NLRB
1056, 1095 (1989); Barclay Caterers, supra; People Care, supra.
In its post-hearing brief, Respondent argues that the Union never “insisted” on additional
bargaining dates, and that therefore it acquiesced to the bargaining tempo Respondent set. 10
I disagree. The Union practically begged for additional multiple bargaining dates, often 8 weeks
or more prior to the next scheduled bargaining session. Short of making threats, whether of
strikes or the filing of additional Board charges, I cannot envision what else the Union could
have done to prompt Respondent to agree to additional bargaining sessions. I do not believe that
making threats should be the threshold necessary for the Union to vindicate its statutory rights, 15
nor wise public policy to so require. Respondent also argues that its offer to bargain by
telephone or via electronic tele-conference such as WebEx evidences its good faith and desire to
keep the negotiations flowing. I disagree. Although the Board has yet to rule whether an offer to
bargain via videoconference, absent mutual agreement, satisfies a party’s obligation to meet at
“reasonable times,” it has ruled that an employer cannot insist on telephone bargaining. See Alle 20
Arecibo Corp., 264 NLRB 1267 (1982); Success Village Apartments, 347 NLRB 1065, 1080
(2006). In this case, the Union informed Respondent at a very early stage of its strong
preference for in-person bargaining and its opposition to telephone or video conference
bargaining. In light of the circumstances described above, Respondent’s belated offers to
bargain via WebEx can reasonably be seen as an empty gesture that should not provide25
Respondent absolution or cover for its otherwise dilatory tactics.
It is worth noting that despite Respondent’s assertion, in its post-hearing brief, that it is
not invoking the “busy lawyer (or representative)” defense to justify the meager number of
bargaining sessions during 2018, a careful examination of the record shows that in fact raising 30
this defense is precisely what it did—call it the “busy bargaining committee” defense. For
example, Garnett testified that Respondent’s team members had “geographic challenges” going
to Seattle for negotiations, and had “very busy schedules” which conflicted with the bargaining
dates proposed by the Union, adding that the April to October period was particularly busy for
Rhino (Tr. 714–716).43 Indeed, the calendar introduced by Respondent into the record (R. Exh. 35
1), which shows the various commitments and conflicts its team members had with the
bargaining dates proposed by the Union, has little or no relevance except to show that the various
members of Respondent’s bargaining team were indeed very busy. There are two principal
reasons why this defense is spurious. First, the Board (and the courts) have long rejected the

43 Garnett was flying into Seattle from St. Louis, about a 3.5-hour flight; Giek was flying in from San Diego,
about a 3-hour flight; Smith was flying from Las Vegas, about a 2.5-hour flight; and Acuna was flying in from
Denver, about a 2.5-hour flight. As discussed below, Respondent’s representatives insisted on flying into and out of
Seattle on the same day, which meant that the bargaining sessions had to start around 11 am and end by 3:30 or so,
in order to catch the flights back home on the same day. This limited the bargaining sessions to about 4 hours,
which means that Respondent’s representatives were spending far more time traveling than actually bargaining. To
describe these arrangements as grossly inefficient would be an understatement, if efficiency is defined as the
potential to accomplish much.
JD(SF)–36–19
19
“busy lawyer” or “busy schedule” defense. See, e.g., Barclay Caterers, supra., and cases cited
therein; People Care, supra.; Calex Corp., supra.; NLRB v. Exchange Parts Co., 339 F.2d 829,
832 (5th Cir. 1965). As the Board stated in Caribe Staple Co., 313 NLRB 877, at 893 (1994):
“Considerations of personal convenience, including geographic or personal conflicts, do not take
precedence over the statutory demand that the bargaining process take place with expedition and 5
regularity. An employer acts at its peril when it selects an agent incapacitated by these or any
other conflicts.” Simply put, Respondent was not privileged to subordinate to all other business
or personal considerations its statutory obligation to meet and bargain with the Union at
reasonable times. Second, as discussed above, had Respondent not ignored the Union’s pleas for
additional bargaining dates, often submitted as much as 6–8 weeks in advance, until the last 10
minute, its agents may not have had these conflicts in the first place. By refusing to address
these requests for additional bargaining dates until it was too late, Respondent intentionally
sabotaged any chances of having a conflict-free date available in the near future.
Accordingly, I conclude that Respondent’s conduct with regard to the scheduling of 15
bargaining sessions reflected bad faith. In reaching this conclusion, I do not view this conduct in
complete isolation, even though the dilatory tactics described above are sufficient, by
themselves, to signal bad faith. Other conduct by Respondent points to, or at least hints at, a
frame of mind indicative of bad faith. For example, in 2015, prior to the election that resulted in
the Union ultimately being certified as the collective-bargaining representative of the unit 20
employees, Giek gave a captive audience speech to Rhino’s employees. In the speech, Giek
stated, inter alia, that “the first contract after an election takes a long time to negotiate,” and also
that he was aware that “some negotiations in our industry taking years to negotiate.” (GC Exh.
4). Although there is nothing unlawful in this statement, which is typical of many such pre-
election statements by employers, it provides a context by which to view Respondent’s frame of 25
mind during the 2018 negotiations. Thus, in the context of its approach to scheduling bargaining
sessions in 2018, such statement can now be viewed not as a discussion of how negotiations
might turn out, but rather as a prophesy of the approach Respondent would take. Given
Respondent’s dilatory conduct in scheduling bargaining sessions in 2018, it would appear that
these negotiations would indeed take years, as prophesized in 2015. Likewise, Respondent’s 30
consistent practice of choosing 1 day—and only 1 day—for negotiations among the many
offered, in combination with its practice of flying into and out of Seattle on that same day,
guaranteed that the negotiation sessions would be kept very short—and predictably unfruitful.44
As described earlier, Garnett, Respondent’s spokesperson and principal negotiator, is a very
experienced labor lawyer, with many collective-bargaining agreements under his belt. In light of 35
his admission that initial contracts take much longer to negotiate, because as he put it, “every
word of every sentence of every paragraph has to be negotiated,” it is reasonable to infer that he
knew the pace Respondent had set would result in protracted negotiations, perhaps for years,
absent a complete capitulation by the Union. Finally, I note the record contains numerous emails
and communications that indicate that Respondent resisted and delayed providing the Union with 40
information it was entitled to as the representative of the bargaining unit employees, and which

44 It is true that the Union acquiesced to the “half day” schedule of bargaining that started around 11 am and
ended around 3:30 pm, which Respondent insisted on in order to permit its representatives to arrive and depart out
of Seattle on the same day. For this reason, as discussed below, I do not find this practice to independently represent
bad faith bargaining, as alleged in the complaint. Nonetheless, I believe this practice sheds light on Respondent’s
frame of mind and its intent with regard to the scheduling of bargaining sessions.
JD(SF)–36–19
20
the Union needed in order to properly bargain for a collective-bargaining agreement. The instant
complaint does not allege a separate violation for such conduct, and I therefore make no findings
in that regard. I can, however, take judicial notice of the settlement agreement that Respondent
entered into on July 16, 2018 in Case 19–CA–213768, in which the complaint alleged that
Respondent had violated Section 8(a)(1)(5) of the Act by refusing and failing to provide the 5
Union with information it had requested. Shamrock Foods Co., 366 NLRB No. 117, slip op. at 3
fn. 14, enfd. per curiam __Fed. Appx__, 2019 WL 3229142 (D.C. Cir. July 12, 2019) (2018);
Metro Demolition Co., 348 NLRB 272 fn. 3 (2006). This settlement agreement does not contain
a non-admissions clause, and by its terms Respondent agrees to a default judgment in case on
non-compliance with the remedial provisions of the agreement.45 Accordingly, I have 10
considered Respondent’s conduct in that regard in determining whether it displayed bad faith.
Altogether, these additional factors reinforce my finding that Respondent’s conduct did not
reflect good faith.
For the reasons discussed above, I conclude that as alleged in paragraph(s) 8(a)(i) and 9 15
of the complaint, Respondent violated Section 8(a)(1)(5) of the Act by failing and refusing to
meet with the Union at reasonable intervals and without unreasonable delays.
2. The allegation that Respondent failed and refused to meet with the Union for an
appropriate amount of time to bargain.20
In support of this allegation, contained in paragraph 8(a)(ii) of the complaint, the General
Counsel argues that Respondent’s practice and insistence of traveling to and from the
negotiations in Seattle on the same day scheduled for bargaining, limited the bargaining to only
half a day, reflected bad faith. As described briefly above, starting with the first bargaining 25
meeting on February 9, Respondent requested that the meeting start at 11 a.m. and end in mid-
afternoon, around 3:30 p.m., in order to accommodate the travel plans of its representatives. As
noted earlier, Respondent’s representatives were flying into Seattle from St. Louis, San Diego,
Las Vegas and Denver, and desired to arrive and depart on the same day scheduled for
bargaining—in order to minimize the interruption of their business and personal affairs. The end 30
result of this practice was to limit bargaining sessions to only half a day, from late morning to
mid-afternoon, as noted.
Such practice, particularly in combination with the dilatory tactics employed by
Respondent in its scheduling of bargaining dates, as described above, would normally reflect bad 35
faith. As discussed above, Respondent cannot subordinate its obligation to bargain to other
business and personal obligations; the “busy bargaining committee” defense is invalid. In this
case, however, the Union went along and acquiesced to this practice. From the start, apparently
out of courtesy, the Union agreed to the late starting time and early ending time for every
meeting. Indeed, on one occasion the Union even reminded Respondent’s representatives that it 40
was time to leave, given the time needed to get to the airport, if they wanted to catch their flights
that evening. Unlike with the scheduling of bargaining sessions, where the Union repeatedly
requested, even begged, for additional or multiple bargaining dates, the Union never protested

45 There is no evidence that Respondent failed to abide to the terms of the settlement agreement, and therefore no
default judgment has been entered. The Settlement Agreement also contained a provision requiring Respondent to
bargain with the Union for an extended period required by Mar-Jac Poultry Co., 136 NLRB 785 (1962).
JD(SF)–36–19
21
Respondent’s requests for “half-day” sessions. If, as I suspect, this was out of courtesy, perhaps
in the hope that Respondent would agree to additional (or multiple) bargaining sessions, it was
certainly a case of unrequited courtesy. The Board has ruled that it will not find a violation of
the duty to bargain if the union does not test an employer’s willingness to bargain. Audio Visual
Services Group, Inc., 367 NLRB No. 103, slip op. at 6 (2019). See also Captain’s Table, 289 5
NLRB 22, 22–24 (1988); McCarthy’s Construction Co., 355 NLRB 50, 53 fn. 14 (2010).
Simply put, as the Board stated in McCarthy’s Construction, Id., the Union should have been
more assertive in requesting longer bargaining sessions, rather than acquiesce to the half-day
sessions.
10
Accordingly, I find no merit in this allegation, and recommend that it be dismissed.46
3. The allegation that Respondent failed and refused to engage in meaningful
bargaining during sessions.4715
The above-described allegation in the complaint is puzzling and vague, partly because the
definition of the word “meaningful” is uncertain, and has, to my knowledge, never been
precisely defined by the Board. This is because, like “good faith” it can only be defined on a
case-by-case basis, and is fact-dependent. Unfortunately, the General Counsel’s post-hearing 20
brief did not provide much clarity as to its precise theory of a violation, providing instead a
smorgasbord sample of conduct by Respondent, apparently hoping that this diffuse mass would
coalesce into a unified theory of a violation.48 Thus, in its brief, the General Counsel generally
espouses 3 types of conduct by Respondent which it believes shows that Respondent failed to
engage in “meaningful” bargaining. I will discuss these allegations below.25
First, the General Counsel emphasizes Respondent’s alleged failure to provide the Union
with information and argues this is evidence of bad faith. While this is true, it must be noted that
the General Counsel has alleged that Respondent failed to engage in “meaningful” bargaining,
which is another way of stating that it was engaged in surface bargaining. To establish surface 30
bargaining, the Board looks at the totality of circumstances and conduct both on and off the
table. The refusal to provide information is one among several—indeed many—factors the
Board looks at. A refusal to provide information, while an independent violation of Section
8(a)(1)(5), by itself cannot serve as the basis for a finding that the employer was engaged in
surface—or lack of meaningful—bargaining. The General Counsel cites several cases in support 35
of the proposition that failure to provide information is tantamount to failing to engage in
meaningful bargaining. The problem, however, is that none of the cases cited stand for this
proposition or are otherwise inapposite. For example, the General Counsel cites Chalk Metal
Co., Inc., 197 NLRB 1133 (1972), stating that the Board adopted an ALJ’s finding that the
employer’s failure to provide information supported the conclusion that it failed to engage in 40

46 As discussed above, however, Respondent’s conduct in this regard is still relevant and can be used to reveal
Respondent’s frame of mind and good faith (or lack thereof) with regard to the scheduling of bargaining sessions.
47 Complaint paragraph 8(a)(iii).
48 During the hearing, I specifically asked the General Counsel if it was alleging that Respondent engaged in
surface bargaining, but I never received a satisfactory answer, with the General Counsel explaining that it would
discuss its theory in its post-hearing brief. General Counsel never answered the question in the brief, either. It
should be noted that the General Counsel’ “brief,” at 64 pages despite using size 11 font, was anything but.
JD(SF)–36–19
22
“meaningful bargaining.” There are several things that are wrong about this assertion. First, the
employer in that case did not file exceptions to the ALJ’s (actually, Trial Examiner, as they were
called then) substantive findings, and only filed objections to the broad remedy recommended.
Therefore, the Board did not “adopt” the ALJ’s findings or conclusions, and the case accordingly
does not constitute proper precedent. Operating Engineers Local 39 (Mark Hopkins 5
Intercontinental Hotel), 357 NLRB 1683 fn. 1 (2011); Colgate-Palmolive Co., 323 NLRB 515,
fn. 1 (1997). Secondly, the ALJ never used the term “meaningful bargaining,” but rather found
that the employer had independently violated Section 8(a)(5) by refusing to furnish the union
with information. The ALJ found that this conduct, along with many other additional factors,
including fairly egregious conduct, constituted bad faith surface bargaining. Likewise, Atlanta 10
Hilton & Towers, 271 NLRB 1600 (1984), cited for the proposition that failure to provide
relevant information evidences bad faith bargaining, stands for no such thing. Indeed, in Atlanta
Hilton the Board found that the employer had not violated the Act when it refused to provide the
Union with certain financial information, since the employer had not plead inability to pay.
While the Board listed the various factors it considers when deciding if an employer was 15
engaged in bad faith bargaining, failing to provide information was not one of them.49
Nonetheless, failing to provide information has been found by the Board in other cases to be one
of the various factor in such consideration—a factor that I already discussed in finding
Respondent had engaged in dilatory scheduling practices. Finally, the General Counsel cites
National Extrusion & Mfg. Co., 357 NLRB 127, 168 (2011), but that is a case that is simply 20
inapposite—the Board in that case found an independent violation of Section 8(a)(1)(5) based on
the employer’s failure to provide requested information, and violating that Section of the Act by
definition means the employer failed to bargain in good faith. In other words, it was not a factor
in finding the employer had engaged in surface bargaining, or “meaningful bargaining” as the
General Counsel has plead. As noted earlier, although the refusal to provide information issue 25
was not plead or litigated in the instant case, I took judicial notice of a formal settlement
agreement entered into by Respondent which resolved an earlier complaint, and such conduct
was duly noted. Examining Respondent’s over-all conduct during negotiations, including its
delay in providing the Union with information, as further detailed below, I am not persuaded that
the General Counsel has met its burden to show surface bargaining—or “meaningful 30
bargaining”—as it apparently prefers to call this conduct.
General Counsel additionally argues that Respondent failed to engage in meaningful
bargaining by refusing to submit economic proposals after a “full year” of bargaining, citing
United Technologies, 296 NLRB 571 (1999) and Nansemond Convalescent Center, 255 NLRB 35
563, 566–567 (1981). Both of those cases are distinguishable, however, in that the parties in
those cases held at least twice the number of bargaining sessions (12 in United Technologies and
14 in Nansemond) than the parties in this case, which held only 6.50 In light of the relatively few
bargaining session held in this case, it is far more difficult to detect a clear pattern of refusal by
Respondent to make economic proposals. Simply put, the runway is much too short for General 40

49 In Atlanta Hilton, supra., at 1603, the Board listed the following indicia of lack of good faith: delaying tactics;
unreasonable bargaining demands; unilateral changes in mandatory subjects of bargaining; efforts to bypass the
union; failing to designate an agent with sufficient bargaining authority; withdrawal of agreed-upon provisions; and
arbitrary scheduling of meetings.
50 As discussed earlier, the meager number of bargaining sessions can be attributable to Respondent’s dilatory
tactics.
JD(SF)–36–19
23
Counsel’s airplane of a theory to take off. As witnesses for both sides admitted, the parties often
got “side-tracked” during some of the meetings discussing issues that were not immediately
pertinent to contractual bargaining matters—but it was by mutual volition.51 More importantly,
however, unlike in the two cited cases, Respondent in this case did not refuse to discuss
economic proposals at all. While it cited its preference to come to agreement on non-economic 5
matters first, it did not refuse to discuss economic matters. It rejected the economic proposals
submitted by the Union, as was its right to do, and had yet to submit a counter-proposal by their
sixth and last bargaining session. Given the relatively small amount of bargaining sessions the
parties had, and the fact that by mutual volition they got bogged down on a number of non-
economic issues during those sessions, I will not read bad faith into Respondent’s failure to 10
submit economic counter proposals during that short span of time.
In sum, I find that the over-all record in this instance does not show that Respondent
failed to engage in “meaningful bargaining,” or put in another way, that it engaged in surface
bargaining.15
4. The allegation that Respondent failed and refused to come to
bargaining sessions with prepared proposals.
This allegation is the most puzzling of all, because it implies, or presumes, that there is an 20
obligation under Section 8(d) of the Act for a party to negotiations to come to any given
bargaining session with pre-prepared proposals or counter-proposals—something that to my
knowledge the Board or a court has never directly, indirectly, or even remotely ever ruled.52
Moreover, it is based on a factual premise which is not established, as discussed below. This
allegation appears to again be based on a smorgasbord of diffuse concepts, such as Respondent 25
not presenting a counter-proposal first thing in the morning at a new session after the Union
made a proposal in the last session, or Respondent taking too long to caucus, or allegedly using
caucus time to prepare counter-proposals it should have already prepared prior to the session, etc.
Again, the merit of these allegations assumes that there is a rigid set of rules governing
negotiations, where any proposal by one side must be, if not immediately thereafter, soon be 30
countered by the other side, within a specific time table, and caucusing time is not permitted to
be used for the preparation of proposals—which must have been prepared beforehand, like
school kids’ homework. For example, the General Counsel cites the fact that the Union
presented Respondent with a full contractual proposal at the March 29 session, which the parties
discussed at length during that session. The General Counsel goes on to assert that Respondent, 35
instead of presenting its counter-proposal at the start of the May 1 session, did not do so until late
during the May 1 session, and implies that Respondent misused a lengthy caucus during that

51 In this regard, I take issue with the General Counsel pointing out that the parties spent an entire bargaining
session (on February 9) and part of the next one, negotiating—or arguing—about the “ground rules,” which the
Union had proposed. The silent implication is that this waste of time was Respondent’s fault, who the General
Counsel apparently assumes should have simply accepted whatever the Union had proposed. This implication is
exceedingly invalid. The Union opened the door by proposing ground rules, and Respondent had the right to
disagree with the Union’s proposals and bargain—and bargain hard if need be—about these rules. Accordingly,
even if the parties had spent several sessions discussing this topic, I would not find it a valid basis for implying bad
faith on Respondent’s part, absent other conduct evidencing bad faith.
52 Indeed, the General Counsel offers no authority in its post-hearing brief as why this allegation, even if true,
would violate the Act.
JD(SF)–36–19
24
session to prepare its counter-proposal. First, I note that Respondent presented evidence, which I
credited, that it had in fact prepared its counter-proposal prior to May 1, but that the parties
ended up getting side-tracked and discussing other issues at the start of the May 1 session. It is
therefore inaccurate to assert that Respondent was coming to the bargaining sessions
“unprepared,” whatever that means. Even assuming, however, that Respondent intentionally5
held on to its counter-proposal until later in the bargaining session, or even prepared such
proposal belatedly during a caucus, I cannot imagine a theory, let alone find authority, under
which such conduct could be found unlawful. Bargaining is not governed by a rigid “tit-for-tat”
set of procedural rules, but must rather be judged by the over-all conduct of the parties to
determine good faith. Port Plastics, 279 NLRB 362, 382 (1986); Hotel Roanoke, 293 NLRB10
182, 184 (1989). The reality is that bargaining often resembles poker, where the opponents
sometimes hold their cards until it is most strategically advantageous to show them. A skilled
negotiator—indeed a brilliant one—is one who without resorting to a rigid and unlawful lack of
flexibility or lack of reasonable concessions, can coax the other side into bargaining against
itself. The Act presumes that negotiating parties are adults who can be assertive, push the other 15
side and demand a response when called for. (see, e.g., Audio Visual Services Group, Inc.,
supra., 367 NLRB No. 103, slip op. at 8 (2019). The Act does not contemplate the Board as a
referee, let alone a baby-sitter, when it comes to bargaining between parties, but rather
designates it as an adjudicator which determines if a party has crossed the line into bad faith.
Such line has not been crossed in this particular scenario.20
Accordingly, and for the above reasons, I find no merit in this allegation.
5. The allegation that Respondent insisted on claiming the Union is a competitor25
despite Board decisions finding it to be a labor organization.
Again, this allegation is somewhat puzzling, because it suggests that by sustaining or
maintaining an opinion that is contrary to established Board precedent, this shows bad faith and
is therefore violative of the Act. The short answer to that is that Respondent is constitutionally 30
entitled to hold any opinion it wishes, despite any Board or court rulings to the contrary. The
issue is not what opinion Respondent maintained, regardless of how invalid, silly or odious it
might be, but rather what conduct, if any, such opinion engendered. In this case, Respondent’s
repeated assertions during the course of negotiations that the Union was a “competitor” of
Respondent resulted in the withholding of certain information from the Union for over 6 months. 35
Thus, the Union had requested that Respondent provide it, inter alia, with the name of the venues
or locations where its riggers worked. Respondent balked, claiming that it considered such
information “proprietary and confidential” and that providing such information to the Union,
which Respondent considered a “competitor,” could prove harmful to its business interests. This
resulted in protracted negotiations between the Union and Respondent, who insisted that the 40
Union enter into a confidentiality agreement before such information was released. The parties
eventually came to an agreement on this issue, and the information was eventually provided to
the Union—albeit more than 6 months after it had been requested.53 In sum, Respondent’s

53 In any event, pursuant to the terms of the settlement agreement Respondent entered into in Case 19–CA–
213768, discussed above, it would appear that Respondent would have been obligated to provide such information
in any event.
JD(SF)–36–19
25
conduct in this regard resulted in an unwarranted delay in providing the Union with information
it was entitled to, and which it needed to properly represent the employees it represented in
collective bargaining.
Accordingly, to the extent that the General Counsel alleges that by holding or even 5
expressing its view that the Union was a “competitor” Respondent displayed bad faith or
otherwise violated the Act, I would find no merit to this allegation. On the other hand, if the
allegation is that as a result of this view Respondent engaged in conduct such as delaying
providing the Union with information it was entitled to, I find that the allegation has merit. Such
conduct, as I already discussed earlier in discussing allegation No. 1, above, is one of the various 10
factors I considered in concluding that Respondent had engaged in dilatory tactics that supported
a finding of bad faith bargaining.
B. The Unilateral Implementation of the Safety Boots Policy
15
As described in the facts Section, it is undisputed that starting on January 1, 2018,
Respondent implemented a new policy that made it mandatory for riggers to wear over-the-ankle
safety boots containing steel or composite toe guards.54 This new policy was in effect until July
5, 2018, when Respondent rescinded the rule after the Union raised objections. It is also
undisputed that Respondent never notified the Union about the new rule or bargained with the 20
Union prior to implementing it. The record also shows that although Respondent’s prior policy
required riggers to wear “boots,” which typically is understood to mean over-the-ankle foot
ware, this policy was not rigidly adhered to or enforced, as some riggers, particularly “up-
riggers” who worked in heights, preferred wearing lighter footwear with better grip, such as
tennis shoes. Respondent’s new policy required riggers to wear over-the-ankle boots with 25
protective (steel or composite) toe protection, which employees would have to purchase if they
did not already own such footwear. The record further shows that the cost of such footwear
would be anywhere from $35 to over $100, depending on the brand and style.
The General Counsel contends the employer’s change in policy without notifying or 30
bargaining with the Union violated Section 8(a)(1)(5) of the Act, pursuant to the well-established
doctrine announced by the Supreme Court in NLRB v. Katz, 369 U.S. 736 (1962). Respondent,
citing Raytheon Network Centric Systems, 365 NLRB No. 161 (2017), as well as Bath Iron
Works Corp., 302 NLRB 898 (1991), contends that the new policy was consistent with
Respondent’s past practice, and that in any event the change was minor and not material 35
substantial or sufficiently significant so as to trigger an obligation to bargain. For the reasons
discussed below, I find that the General Counsel has the better argument, and that this unilateral
change violated Section 8(a)(1)(5) of the Act.
It is by now axiomatic that Section 8(a)(5) of the Act requires an employer to provide its 40
employees’ representative with notice and an opportunity to bargain before instituting changes in
any matter that constitutes a mandatory subject of bargaining, such as wages, hours and other
terms and conditions of employment. NLRB v. Katz, supra. A unilateral change in a mandatory
subject of bargaining is unlawful only, however, if it is a “material, substantial, and significant

54 The new policy also stated that those employees who were not complying with this policy would be sent
home.
JD(SF)–36–19
26
change.” Berkshire Nursing Home, 345 NLRB 220 (2005); Toledo Blade, 343 NLRB 385
(2004); Flambeau Airmold Corp., 334 NLRB 165 (2001), quoting Alamo Cement Co., 281
NLRB 737, 738 (1986), modified on other grounds 337 NLRB 1025 (2002). The General
Counsel establishes a prima facie violation of Section 8(a)(5) when he shows that the employer
made a material and substantial change in a term of employment without negotiating with the 5
union. The burden is then on the employer to show that the unilateral change was in some way
privileged. McClatchy Newspapers, Inc., 339 NLRB 1214 (2003), and cases cited therein. I find
that not only a change took place in the instant case, but that such change was material,
substantial and significant. The new policy required employees who did not already have over-
the-ankle boots with toe guards to purchase such footwear, which could exceed $100, and 10
provided that those in non-compliance would be sent home from work. While the record is silent
as to how many employees ended up having to purchase new foot ware to comply with the new
policy, it is reasonable to infer that it involved more than a handful, since the record established
that some employees, such as up-riggers, did not wear boots under the old policy. I therefore do
not consider this change to be de minimis, as Respondent appears to argue. Moreover, I do not 15
believe that Raytheon, supra., is applicable to this situation. Raytheon involved a very fact-
specific situation concerning an employer making modifications to medical benefits after the
expiration of a collective-bargaining agreement, modifications which the Board found to be
consistent with past practices by the employer. At its essence, Raytheon stands for the
proposition that certain modifications or alterations consistent with past permitted practice under 20
collective-bargaining agreements do not constitute a change within the meaning of NLRB v.
Katz, supra. In the instant case, I have found that a significant and material change took place
and note that Respondent did not meet its burden under McClatchy to show that this change was
privileged. Indeed, I would note that most, if not all, employers have work rules and policies in
place long before the advent of a union’s arrival—workplaces could not function otherwise—and 25
that occasionally these rules and policies undergo changes. To apply Raytheon in such a broad
manner so as to cover all preexisting rules and policies, under these circumstances, would all but
wipe out the significance of Katz, which respectfully, the Board lacks the authority to do. I
therefore do not interpret Raytheon in the manner Respondent would have me do.
30
Accordingly, I conclude that by implementing the new work (or safety) boots policy on
January 1, 2018, without notifying or bargaining with the Union, Respondent violated Section
8(a)(1)(5) of the Act.
CONCLUSIONS OF LAW35
1. Respondent Rhino Northwest, LLC is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Local No. 15, International Alliance of Theatrical Stage Employees and Moving 40
Picture Technicians, Artists, and Allied Crafts of the United States, its Territories and Canada,
AFL–CIO, CLC (Union), is a labor organization within the meaning of Section 2(5) of the Act
and has at all times material herein been the certified exclusive representative for purposes of
collective bargaining of Respondent’s employees in the following described unit:
45
JD(SF)–36–19
27
All full-time and regular part-time riggers, including boom lift riggers, ballroom
riggers, decorating riggers, down riggers, ETCP high riggers, fly operators, head
riggers, head fly operators, high riggers, high rigger trainees, high rigger welders,
installation riggers, roof operators, roof supervisors, and rigging trainees, employed
by the Employer out of its Fife, Washington, facility, excluding all other employees, 5
guards and supervisors as defined in the Act.
3. Respondent has violated Section 8(a)(5) and (1) of the Act from February 9, 2018
through October 11, 2018, by failing and refusing to bargain with the Union in good faith and by
failing to meet with the Union at reasonable times for the purposes of collective bargaining.10
4. Respondent has violated Section 8(a)(5) and (1) of the Act from January 1, 2018
through July 5, 2018 by unilaterally implementing a new safety work boot policy without
notifying or bargaining with the Union.
15
5. The unfair labor practices committed by Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
20
The appropriate remedy for the Section 8(a)(5) & (1) violations I have found is an order
requiring Respondent Rhino Northwest LLC to cease and desist from such conduct and take
certain affirmative action consistent with the policies and purposes of the Act.
I shall recommend that Respondent be ordered, on request, to bargain with the Union 25
over wages, hours, and working conditions of employees in the above-described unit and, if
agreement is reached, embody such agreement in writing. This obligation shall include
complying with the Union’s requests for more frequent in-person bargaining sessions.55 I shall
further recommend that that Respondent be ordered to cease and desist from implementing
changes in the working conditions of bargaining unit employees without first affording the30
Union the opportunity to bargain. I shall also recommend, pursuant to the Board’s ruling in Mar-
Jac Poultry Co., 136 NLRB 785, 785–787 (1962), an extension of the certification year for a 10-
month period to commence from the time Respondent first begins to bargain in good faith with
the Union. Additionally, Respondent will be required to post a notice to employees, assuring
them that Respondent will not violate their rights in this or any other related manner in the 35
future. Given the geographically disperse nature of Respondent’s work force, Respondent shall
also be required to distribute the notice to employees by email or regular mail, as well as any
other means Respondent customarily uses to communicate with employees.

55 The General Counsel has requested a special remedy requiring Respondent to adhere to a bargaining schedule
setting forth regular intervals and hours for bargaining with the Union, without specifying exactly what that schedule
should consist of, and further requiring that Respondent prepare written bargaining progress reports every 15 days to
be submitted to the Regional Director and the Union. I note, however, that the cases relied upon by General Counsel
to justify this extraordinary remedy involved conduct that was far more extensive, egregious and widespread than
the conduct engaged in by Respondent in this case. Accordingly, I decline to order such remedy.
JD(SF)–36–19
28
Accordingly, based on the forgoing findings of fact and conclusions of law, and on the
entire record, I issue the following recommended56
ORDER
5
Respondent, Rhino Northwest LLC, Fife Washington, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
10
(a) Failing and refusing to bargain with the Union in good faith by failing to meet
with the Union at reasonable times for the purposes of collective bargaining;
(b) Failing and refusing to bargain with the Union by unilaterally implementing a
new safety work boot policy without notifying or bargaining with the Union;15
(c) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the purposes and policies 20
of the Act:
(a) Within 14 days after service by the Region, post at all its facility in Fife,
Washington, where notices to employees are customarily posted, copies of the attached notice
marked “Appendix.”57 Copies of the notice, on forms provided by the Regional Director for 25
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 where notices to employees are customarily posted. In addition to physical posting of
paper notices, the notices shall be distributed electronically, such as by email, or by regular U.S.
mail for those employees who do not have email. Reasonable steps shall be taken by the 30
Respondent to ensure that the notices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings, the Respondent has gone out of
business or closed the facilities involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current employees and former employees
employed by the Respondent at any time since January1, 2018.35

56 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
57 If this Order is enforced by a Judgment of the United States court of appeals, the words in the notice reading
“Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
JD(SF)–36–19
29
(b) 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.
5
Dated: Washington, D.C. October 28, 2019
Ariel L. Sotolongo10
Administrative Law Judge
a 7--- -
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
In recognition of these rights, we hereby notify employees that:
WE WILL NOT fail and refuse to bargain with Local No. 15, International Alliance of Theatrical
Stage Employees and Moving Picture Technicians, Artists, and Allied Crafts of the United
States, its Territories and Canada, AFL–CIO, CLC (Union) in good faith by failing to meet with
the Union at reasonable times for the purposes of collective bargaining.
WE WILL NOT implement any changes in the wages, hours, or working conditions of our
bargaining unit employees, including implementing a new work (or safety) boot policy, without
first notifying the Union and giving it an opportunity to bargain.
WE WILL, upon request, bargain with the Union as the exclusive collective-bargaining
representative of employees in the following appropriate bargaining unit concerning terms and
conditions of employment:
All full-time and regular part-time riggers, including boom lift riggers, ballroom riggers,
decorating riggers, down riggers, ETCP high riggers, fly operators, head riggers, head fly
operators, high riggers, high rigger trainees, high rigger welders, installation riggers, roof
operators, roof supervisors, and rigging trainees, employed by the Employer out of its
Fife, Washington, facility, excluding all other employees, guards and supervisors as
defined in the Act.
JD(SF)–36–19
WE WILL NOT in any like or related matter interfere with, restrain, or coerce you in the exercise of
rights listed above.
RHINO NORTHWEST LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions.
To find out more about your rights under the Act and how to file a charge or election petition, you may
speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov
915 2nd Avenue, Room 2948, Seattle, WA 98174-1078
(206) 220-6300, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/19-CA-221309 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) 220-6340.