Grill Concepts Services, Inc. dba The Daily Grill

372 NLRB No. 30 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Grill Concepts Services, Inc. d/b/a The Daily Grill. and UNITE HERE Local 11. Case 31–CA– 276950 December 16, 2022 DECISION AND ORDER BY MEMBERS RING, WILCOX, AND PROUTY On March 15, 2022, Administrative Law Judge Dickie Montemayor issued the attached decision.1 The Respond- ent filed exceptions, a supporting brief, and a request for oral argument,2 the General Counsel and Charging Party each filed answering briefs, and the Respondent filed a 1 On May 27, 2022, the Federal District Court for the Central District of California issued a preliminary injunction under Sec. 10(j) of the Na- tional Labor Relations Act, enjoining the Respondent from failing or re- fusing to bargain in good faith with the Union as the exclusive collective- bargaining representative of employees in the bargaining unit over terms and conditions of employment by, inter alia, unreasonably delaying in scheduling bargaining sessions, refusing to make proposals or counter- proposals, refusing to enter into tentative agreements, and refusing to meet and bargain with the Union. Rubin v. Grill Concepts Servs., 2022 WL 2168065 (C.D. Cal. 2022). Pending our disposition of these allega- tions, the court ordered the Respondent, upon request, to meet and bar- gain with the Union in good faith and at reasonable times, and to post the district court’s Order at its facility. On June 24, 2022, the Respondent appealed the district court’s Order to the United States Court of Appeals for the Ninth Circuit. The appeal was docketed under case number 22- 55620. 2 We deny the Respondent's request for oral argument as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 3 In adopting the judge’s determination that the Respondent’s duty to bargain was not abrogated by the Union’s alleged loss of majority status, we do not rely on the judge’s conclusion that the Union was entitled to an irrebuttable presumption of majority status during the certification year. The judge erroneously found that the certification year began on July 24, 2019, when the Union was, in fact, certified on July 24, 2018. We note, however, that the Respondent’s cited evidence, two affidavits expressing that unit members were discouraged with the Respondent’s failure to bargain in good faith, falls far short of the evidence required to establish an objective loss of majority support within the unit. See Wy- man Gordon Pennsylvania, LLC, 368 NLRB No. 150, slip op. at 8-9 (2019) (“If an employer withdraws recognition based on a petition . . . the more reasonable interpretation of the language must be that the sig- natory employees desired to remove the union as their representative.”), enfd 836 Fed. Appx. 1 (D.C. Cir. 2020); Liberty Bakery Kitchen, Inc., 366 NLRB No. 19, slip op. at 1 fn. 1 (2018) (no loss of majority support where “the document the [employer] relied on in withdrawing recogni- tion contained no statement of the employees’ desires concerning union representation”). Even assuming arguendo that these affidavits were sufficient to es- tablish a loss of majority support, we have held that “in analyzing the adequacy of an employer's defense to [an 8(a)(5)] allegation, the Board will only examine factors actually ‘relied on’ by the employer.” RTP Co., 334 NLRB 466, 469 (2001), enfd. 315 F.3d 951 (8th Cir. 2003), reply brief. The General Counsel filed cross-exceptions and a supporting brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions,3 to amend the remedy, and to adopt the recommended Order as mod- ified and set forth in full below.4 We adopt the judge’s determination that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain in good faith with UNITE HERE Local 11 (“the Union” or “the Charging Party”).5 Contrary to the judge, however, we limit the violation to the Section 10(b) pe- riod, which commenced November 11, 2020, 6 months before the date the Union’s unfair labor practice charge in this matter was served on the Respondent.6 quoting Holiday Inn of Dayton, 212 NLRB 553, 553 fn. 1, 556 (1974), enfd. 525 F.2d 476 (6th Cir. 1975). “Conduct of which the employer may have been aware, but on which the employer did not base its deci- sion . . . is of no legal significance.” Id. (internal quotations removed). Here, the affidavits were sworn in November 2021, nearly 6 months after the filing of the charge in this case and roughly 2 years after the Respond- ent’s bad-faith bargaining is alleged to have commenced. Accordingly, the Respondent cannot establish that it relied on any information con- tained therein when it failed and refused to bargain with the Union. For this reason, we also find meritless the Respondent’s exceptions arguing that it was prejudiced by the judge’s alleged failure to permit it to ques- tion the General Counsel’s witnesses regarding a loss of majority support in the unit. See Highlands Regional Medical Center, 347 NLRB 1404, 1407 fn. 17 (2006) (“We need not address the sufficiency of the hearing testimony . . . because this evidence was not before the Respondent when it withdrew recognition.”), enfd. 508 F.3d 28, 32 (D.C. Cir. 2007). 4 We shall modify the judge's recommended Order to conform to the violations found, the remedy as amended, and the Board's standard re- medial language, and in accordance with our decision in Paragon Sys- tems, Inc., 371 NLRB No. 104 (2022). We shall also substitute a new notice to conform to the Order as modified. 5 We reject the Respondent’s argument that the bad-faith bargaining charge is time-barred in its entirety. The Respondent failed and refused to bargain in good faith within the 10(b) period, as evidenced by its out- right refusal to consider bargaining proposals at the December 11, 2020 and January 13, 2021 bargaining sessions. See Fruehauf Trailer Ser- vices, 335 NLRB 393, 405 (2001) (“[W]here, as here, the complaint at- tacks an overall course of bad-faith conduct alleged to have persisted within the 10(b) period, and the proof includes substantial examples oc- curring within that period, the complaint is not barred by Section 10(b), and the evidence of conduct outside the 10(b) period may properly be received as background, and considered as part of the analysis of the le- gality of the conduct within the 10(b) period.”). 6 Member Wilcox and Member Prouty agree that, at least as of No- vember 11, 2020, the Respondent was bargaining in bad faith. They fur- ther find that the Respondent’s unlawful conduct continued after that date. Member Prouty finds it appropriate to limit the violation and the rem- edy to the 6-month period preceding the filing and service of the charge. In his view, the Respondent’s bargaining conduct found by the judge to be part of the Respondent’s pre-November 11, 2020 bad-faith bargaining was readily apparent and known to the Union and the Union was on clear and unequivocal notice before November 11, 2020, of the Respondent’s DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 AMENDED REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain steps to effectuate the policies of the Act. Specifically, we amend the judge's remedy in the following respects. Having determined that the Respondent violated Sec- tion 8(a)(5) and (1) by failing and refusing to bargain with the Union since November 11, 2020, we shall order the Respondent to compensate the Union for all bargaining bad-faith bargaining. Accordingly, he would decline to toll the 10(b) period. Nevertheless, he will take into consideration the Respondent’s conduct prior to the start of the 10(b) period as background evidence per- tinent to determining appropriate remedies for the Respondent’s egre- gious violation of the Act. See, e.g., Sparks Nugget, Inc. v. NLRB, 968 F.2d 991, 995 (9th Cir. 1992) (“[E]vents occurring outside the six-month statute of limitations of § 10(b) of the Act may be considered as evidence shedding light on the conduct within the six-month period which is being challenged.”) (internal quotation marks omitted); Regency Service Carts, Inc., supra, 345 NLRB at 672, 673 fns. 3 & 5 (“[W]e consider the earlier bargaining as background in elucidating the nature of the Respondent's conduct at the table during the 10(b) period.”). Member Wilcox joins Member Prouty in finding that the Respondent violated Sec. 8(a)(5) throughout the 6-month period preceding the filing and service of the charge, and she agrees that, at a minimum, the Re- spondent’s conduct prior to the 10(b) period should be considered as background evidence in determining the appropriate remedies. How- ever, because Member Wilcox believes the Respondent was bargaining in bad faith almost from the very outset of negotiations and continued that course of bad-faith bargaining throughout the 10(b) period, she would have additionally considered ordering remedies for conduct that preceded the 10(b) period. In her view, the Union did not unduly delay filing its charge, as it was not on clear and unequivocal notice of the violation until the Respondent’s unlawful conduct became more readily apparent. See Pullman Building Co., 251 NLRB 1048, 1048 (1980) (If a charge is not time-barred, it “is before us on the same basis as is any other case, and hence the usual make-whole remedy is the appropriate one”). However, in the absence of a panel majority to find the violation and order a remedy encompassing the entire course of conduct, she joins Member Prouty in limiting the violation and the remedy to the 6-month period preceding the Union’s charge. Accordingly, Member Wilcox and Member Prouty find that the Respondent failed and refused to bargain in good faith in violation of Sec. 8(a)(5) for the duration of the 10(b) period, and they will order remedies accordingly. Member Ring would find that the Respondent failed and refused to bargain in good faith on December 11, 2020, when it expressly refused to bargain by informing the Union that its representative was “not ready to negotiate,” and thereafter. He finds it unnecessary to decide whether the Respondent bargained in bad faith prior to that date, as such a deci- sion would not affect his determinations regarding appropriate remedies. 7 We order this reimbursement remedy because the Union expended significant time and expense bargaining with a Respondent that bar- gained in bad faith. In that way, the Union was denied the benefit of the good-faith bargaining required by the Act. In determining that a reim- bursement remedy is appropriate, we rely in part on the Respondent’s conduct prior to the 10(b) period, which serves as background evidence of the egregious nature of the Respondent’s violation of the Act during the 10(b) period. In addition to the egregious nature of the Respondent’s conduct, we note, contrary to our colleague, that the Respondent is, in fact, a recidivist offender, and has shown a proclivity to violate the Act and infringe upon the statutory rights of the very same employees at issue expenses it incurred during the period beginning on No- vember 11, 2020, through the date that good-faith negoti- ations ultimately begin, including any lost wages the Un- ion paid to employee bargaining committee members for bargaining conducted during working hours. See Frontier Hotel & Casino, 318 NLRB 857, 857–859 (1995) (order- ing negotiation expense reimbursement in response to em- ployer’s “egregious and deliberate surface bargaining”), enfd. in relevant part sub nom. Unbelievable, Inc. v. NLRB, 118 F.3d 795 (D.C. Cir. 1997).7 We shall order the in the present case. In Grill Concepts Services, Inc. d/b/a the Daily Grill, 364 NLRB No. 36, slip op. at 1 (2016), enfd. in part, remanded in part 722 F. App'x 1 (D.C. Cir. 2018), the Board determined that the Respond- ent violated Sec. 8(a)(1) of the Act through its conduct during the course of the Charging Party’s unionization campaign by, inter alia, making im- plied threats of job loss, soliciting employee complaints and grievances, interrogating employees about their union activities and the union activ- ities of other employees, creating the impression that employees' union activity was under surveillance,and promising employees benefits in or- der to discourage union support. Contrary to our dissenting colleague’s assertions, Board precedent does not require that a Respondent repeat- edly violate the same subsection of the Act to be considered a recidivist offender for the purposes of the fashioning an appropriate remedy. See ADT v. NLRB, Nos. 22-1629 & 22-1483, 2022 U.S. App. LEXIS 33453 at *35-36 (7th Cir. Dec. 2, 2022) (“We are not aware of any corner of our law where treating a wrongdoer as a recidivist depends upon repeti- tion of the same prohibited act. The first-time arsonist is no less recidi- vist simply because he previously trafficked in stolen goods or extortion. The first-time bank robber is no less a recidivist because he had previ- ously robbed convenience stores or extorted small shops for protection money. Nor is a veteran bank robber less a recidivist because his prior bank robberies were in several other states. The same is true under the National Labor Relations Act.”) Accordingly, we find reimbursement to the Union of bargaining expenses, including any lost wages the Union paid to employees for bargaining conducted during working hours, nec- essary and appropriate to ensure that the Union is made whole for the Respondent’s unlawful bargaining. Unlike his colleagues, Member Ring would not order the Respondent to compensate the Union for its bargaining expenses. The Board has a “long established practice of relying on bargaining orders to remedy the vast majority of bad-faith bargaining violations,” plus the customary cease-and-desist order and the posting of a notice to “induce a respondent to fulfill its statutory obligations.” Whitesell Corp., 357 NLRB 1119, 1122 (2011), enfd. 638 F.3d 883 (8th Cir. 2011). In Member Ring’s view, the Respondent’s unfair labor practice, although serious, did not infect the bargaining process to the point where traditional remedies would be ineffective. But even if it did, Member Ring would not include unreimbursed earnings lost by employee negotiators while attending bar- gaining sessions. (Neither would he include amounts spent by the Union to reimburse employee negotiators for lost earnings.) Until recently— see Nexstar Broadcasting, Inc. d/b/a KOIN-TV, 371 NLRB No. 118, slip op. at 2–3 fn. 6 (2022)—the Board had ordered this remedy on only a handful of occasions, the most recent of which was in 1989. In the in- tervening 33 years, despite knowing this remedy existed, no Board had ordered it, and Member Ring would decline to do so here. Moreover, in the 2022 Nexstar Broadcasting case, the Board justified this remedy on the basis that the respondent had been found to have violated the Act in four decisions issued over the course of just two years—one in 2019, another in 2020, and two more in 2021—and had been warned that the Board would be “‘forced to consider further appropriate remedies if this pattern of unlawful conduct persists.’” Id. (quoting Nexstar GRILL CONCEPTS SERVICES, INC. D/B/A THE DAILY GRILL 3 Respondent to make whole any affected employee negoti- ators for any earnings lost while attending bargaining ses- sions, to the extent those earnings were not reimbursed by the Union. See M.F.A. Milling Co., 170 NLRB 1079, 1080 (1968), enfd. sub nom. Laborers Local 676 v. NLRB, 463 F.2d 953 (D.C. Cir. 1972). In this regard, backpay shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Ho- rizons, 283 NLRB 1173 (1987), compounded daily as pre- scribed in Kentucky River Medical Center, 356 NLRB 6 (2010). Further, in accordance with our decision in Cas- cades Containerboard Packaging—Niagara, 370 NLRB No. 76 (2021), as modified in 371 NLRB No. 25 (2021), we shall order the Respondent, within 21 days of the date the amount of backpay is fixed either by agreement or Board order, or such additional time as the Regional Di- rector for Region 31 may allow for good cause shown, to file with the Regional Director for Region 31 a copy of each backpay recipient’s corresponding W-2 forms re- flecting the backpay award. Next, for the reasons set forth in Caterair International, 322 NLRB 64 (1996), we find that an affirmative bargain- ing order is warranted in this case as a remedy for the Re- spondent’s unlawful failure and refusal to bargain in good faith. The Board has consistently held that an affirmative bargaining order is “the traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective- bargaining representative of an appropriate unit of em- ployees.” Id. at 68. In several cases, however, the United States Court of Appeals for the District of Columbia Circuit has required that the Board justify, on the facts of each case, the impo- sition of such an order. See, e.g., Vincent Industrial Plas- tics v. NLRB, 209 F.3d 727, 738–740 (D.C. Cir. 2000); Lee Lumber & Bldg. Material Corp. v. NLRB, 117 F.3d 1454, 1460–1462 (D.C. Cir. 1997); Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248–1249 (D.C. Cir. 1994). In Vincent, supra, 209 F.3d at 738, the court summarized its requirement that an affirmative bargaining order “must be justified by a reasoned analysis that includes an explicit balancing of three considerations: (1) the employees' [Sec- tion] 7 rights; (2) whether other purposes of the Act over- ride the rights of employees to choose their bargaining Broadcasting, Inc. d/b/a KOIN-TV, 370 NLRB No. 72, slip op. at 1 fn. 2 (2021)). That justification does not apply here. Moreover, in each of those four decisions, the Board found that Nexstar had failed to bargain in violation of Sec. 8(a)(5). In the prior decision the majority relies on here, the Respondent violated Sec. 8(a)(3) and (1) but not Sec. 8(a)(5). Even assuming that unfair labor practices committed in prior cases can support ordering an extraordinary bargaining-costs remedy in a representatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act.” Although we respectfully disagree with the court’s re- quirement for the reasons set forth in Caterair, supra, we have examined the particular facts of this case as the court requires and find that a balancing of the three factors war- rants an affirmative bargaining order.8 (1) An affirmative bargaining order in this case vindi- cates the Section 7 rights of the unit employees, who were denied the benefits of collective bargaining by the Re- spondent's refusal to bargain in good faith with the Union. By refusing to bargain in good faith and thereby frustrat- ing the possibility of securing a first contract, the Re- spondent unlawfully deprived unit employees of the op- portunity to obtain the stability and predictability such an agreement would provide. At the same time, an affirma- tive bargaining order, with its attendant bar to raising a question concerning the Union's continuing majority sta- tus for a reasonable time, does not unduly prejudice the Section 7 rights of employees who may oppose continued union representation because the duration of the order is no longer than is reasonably necessary to remedy the ill effects of the violation. To the extent such opposition ex- ists, moreover, it may be, at least in part, the product of the Respondent's failure and refusal to bargain in good faith. (2) An affirmative bargaining order also serves the pol- icies of the Act by fostering meaningful collective bar- gaining and industrial peace. That is, it removes the Re- spondent's incentive to delay bargaining in the hope of fur- ther discouraging support for the Union. It also ensures that the Union will not be pressured to achieve immediate results at the bargaining table following the Board's reso- lution of its unfair labor practice charge and the issuance of a cease-and-desist order. Under these circumstances, a reasonable period during which the Union's majority sta- tus cannot be challenged clearly fosters meaningful col- lective bargaining. (3) A cease-and-desist order, alone, would be inade- quate to remedy the Respondent's unlawful failure and re- fusal to bargain in good faith because it would permit a challenge to the Union's majority status before the taint of the Respondent's unlawful conduct has dissipated, and be- fore the employees have had a reasonable time to regroup and bargain through their representative in an effort to subsequent case, Member Ring would find they cannot do so where, as here, the prior violations did not involve the duty to bargain. 8 Member Ring agrees with the D.C. Circuit that an affirmative bar- gaining order is an extraordinary remedy that must be justified on the facts of each case, and with his colleagues that such an order is justified here. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 reach a first contract. Such a result would be particularly unjust in the circumstances presented here, where the Re- spondent's unlawful conduct frustrated any real progress toward achieving a collective-bargaining agreement—for which unit employees, not privy to the Respondent's con- duct, would probably fault their bargaining representative, at least in part—further tending to undermine the unit em- ployees' support for the Union. Thus, the Respondent's failure to bargain in good faith would likely have a con- tinuing effect, tainting any employee disaffection from the Union for a period of time after the issuance of this deci- sion and order. Moreover, the imposition of a bargaining order would signal to employees that their rights guaran- teed under the Act will be protected. We find that these circumstances outweigh the temporary impact the affirm- ative bargaining order will have on the rights of employ- ees who oppose continued union representation. For all the foregoing reasons, we find that an affirmative bargaining order with its temporary decertification bar9 is necessary to fully remedy the Respondent's violation of Section 8(a)(5) and (1) of the Act.10 Next, we agree with the judge that a reading of the re- medial notice is warranted in this case.11 Here, the Re- spondent failed and refused to bargain in good faith with the Union, depriving the Union of an opportunity to reach agreement. See New Concepts for Living, Inc., 371 NLRB 9 In light of our determination that a temporary decertification bar is warranted, we find it unnecessary to pass on the judge’s recommended extension of the certification year pursuant to Mar-Jac Poultry Co., 136 NLRB 785 (1962), as this additional decertification bar would be dupli- cative. 10 To remedy the bad-faith bargaining violation, Member Prouty would additionally authorize, at the Union’s request, the Regional Direc- tor for Region 31 to appoint a mediator, chosen from a list of those qual- ified from an American Arbitration Association panel for the Regional Office area. In his view, the affirmative bargaining order and schedule “may be insufficient to cause Respondent to genuinely change its mind and view concerning the efficacy of union representation and bargain- ing,” and a mediator would perhaps “cause [the] [r]espondent to alter its”conduct.” It would also provide the Board with a window through which to observe the negotiations and to receive a firsthand neutral report of the bargaining.” Altorfer Machinery Co., 332 NLRB 130, 131 (2000) (Member Hurtgen, concurring in part). The mediator would be directed, at the Respondent's expense, to participate in one week of bargaining sessions (or approximately fifteen hours) a month, to attempt to reach an agreement. If, after a time decided by the mediator, these efforts fail, Member Prouty would “direct the mediator to render a report to the par- ties and to the Regional Director as to the status of negotiations and his or her recommendations concerning the resolution of the non-agreed- upon matters.” Mid-Continent Concrete, 336 NLRB 258, 263 (2001) (Chairman Hurtgen, concurring in part). 11 For the reasons expressed in his concurrence in Johnston Fire Ser- vices, LLC, Member Prouty would also require, in this case and in all other cases in which the Board orders a notice-reading remedy, that each employee present at any meeting in which the notice is to be read be provided a copy of the notice before it is read aloud. No. 157, slip op. at 17–18 (2022) (ordering a notice read- ing to remedy, inter alia, the Respondent’s unlawful fail- ure to bargain). Considering the totality of the Respond- ent’s conduct both inside and outside of the 10(b) period, as permitted by Fruehauf Trailer Services,12 we find that the Respondent’s conduct evidenced a pattern of bad-faith surface bargaining that continued for longer than a year- and-a-half. Further, this egregious failure and refusal to bargain with the Charging Party was a continuation of the Respondent’s unlawful efforts to discourage unionization in the same bargaining unit at issue here. In light of the Respondent’s prolonged failure to bargain in good faith, and its prior violations of the Act, referenced above (see Grill Concepts Services, Inc., 364 NLRB No. 36, slip op. at 1), we believe a public reading of the notice is appropri- ate “to dissipate as much as possible any lingering effects of the Respondent’s unfair labor practices” and allow the employees to “fully perceive that the Respondent and its managers are bound by the requirements of the Act.” Homer D. Bronson Co., 349 NLRB 512, 515 (2007) (in- ternal quotation marks omitted), enfd. mem. 273 Fed. Appx. 32 (2d Cir. 2008); see also, e.g., Apex Linen Ser- vice, Inc., 370 NLRB No. 75, slip op. at 3, 48 (2021) (im- posing notice-reading remedy based in part on respond- ent's recidivism); Richfield Hospitality, Inc., 369 NLRB No. 111, slip op. at 5 (2020) (finding notice reading 371 NLRB No. 56, slip op. at 7 fn. 24 (2022). Member Prouty be- lieves that “[s]uch a requirement would facilitate employee comprehen- sion of the notice and enhance the remedial objectives of the notice read- ing.” Ibid. Member Ring would not order a reading of the remedial notice in this case. He adheres to the Board’s longstanding practice of treating notice reading as an extraordinary remedy, reserved for cases involving viola- tions of the Act “so numerous, pervasive, and outrageous’” that a reading of the remedial notice is “necessary ‘to dissipate fully the coercive effects of the unfair labor practices found.’” Federated Logistics & Operations, 340 NLRB 255, 256 (2003) (quoting Fieldcrest Cannon, Inc., 318 NLRB 470, 473 (1995)), review denied 400 F.3d 920 (D.C. Cir. 2005). Here, the Respondent committed a single unfair labor practice—a serious vio- lation, but falling well short of warranting a notice-reading remedy under the foregoing applicable standard. Nor do Member Ring’s colleagues cite authority for the proposition that where the violation in the case at hand is insufficient to justify notice reading under the applicable stand- ard, violations found in a prior case can make up the difference, particu- larly where, as here, those unfair labor practices were committed 6 years ago, in 2014. Finally, contrary to Member Ring’s colleagues, the fact that the Respondent did not except to the judge’s recommended notice- reading remedy is irrelevant: “remedial matters are traditionally within the Board’s province and may be addressed by the Board in the absence of exceptions.” Indian Hills Care Center, 321 NLRB 144, 144 fn. 3 (1996). For the same reason, it is also immaterial that the Respondent did not except to the judge’s recommended broad cease-and-desist order, addressed below. 12 335 NLRB 393, 405 (2001) (“[E]vidence of conduct outside the 10(b) period may properly be received as background, and considered as part of the analysis of the legality of the conduct within the 10(b) pe- riod.”). GRILL CONCEPTS SERVICES, INC. D/B/A THE DAILY GRILL 5 warranted in remedying 8(a)(5) violations based on “con- sideration of the Respondent’s recidivist unlawful con- duct”).13 In accordance with the General Counsel's unop- posed request on cross-exception, and as the record estab- lishes that a substantial number of bargaining-unit em- ployees are primarily Spanish speaking, we shall order the remedial notice to be posted and read in both English and Spanish. See Three Sisters Sportswear Co., 312 NLRB 853, 853 (1993), enfd. 55 F.3d 684 (D.C. Cir. 1995), cert. denied 516 U.S. 1093 (1996). Finally, in the absence of specific exceptions, we adopt the judge’s recommended broad cease-and-desist order. We find a broad order requiring the Respondent to cease and desist from violating the Act “in any other manner” is necessary to redress the unlawful conduct found. Under the standard set forth in Hickmott Foods, 242 NLRB 1357, 1357 (1979), a broad cease-and-desist order is warranted where "a respondent is shown to have a proclivity to vio- late the Act or has engaged in such egregious or wide- spread misconduct as to demonstrate a general disregard for the employees' fundamental statutory rights.” As men- tioned above, the Respondent has demonstrated a procliv- ity to violate the rights of the very same employees at issue in the present case. In Grill Concepts Services, Inc., supra, 364 NLRB No. 36, slip op. at 1, the Respondent was found to have committed numerous unfair labor practices during the course of the Charging Party’s organizing campaign to represent the instant bargaining unit; the same bargaining unit which the Respondent thereafter failed and refused to bargain with in good faith. In this circumstance, we agree 13 Moreover, we note that the Respondent has not specifically ex- cepted to the notice reading remedy. 14 Member Ring would substitute a narrow cease-and-desist order for the judge’s recommended broad order. Issuing a broad cease-and-desist order here is at odds with the Supreme Court’s decision in NLRB v. Ex- press Publishing Co., 312 U.S. 426 (1941). In Express Publishing, the employer was found to have violated what was then Sec. 8(5) of the Act by refusing to bargain, and to have derivatively violated what was then Sec. 8(1) of the Act. The Court held that the Board could not, on the basis of that one direct and one derivative violation, order the employer to refrain from violating the Act in any manner whatsoever. Here as in Express Publishing, the Board finds a single direct refusal-to-bargain vi- olation and a single accompanying derivative violation of the Act. The Respondent did commit additional violations in 2014, as the Board found in a prior decision—see Grill Concepts Services, 364 NLRB 385 (2016)—but Member Ring would find them insufficient to warrant a broad order in this case. ADT, LLC, 371 NLRB No. 67 (2022), cited by his colleagues, does not support a contrary result. In finding that the respondent in that case had the legally necessary proclivity, the Board relied on the fact that ADT had been found to have violated the Act in six separate decisions issued over a five-year span. Id., slip op. at 2, 11. In Member Ring’s view, ADT is plainly distinguishable. We disagree with our colleague that the Board is precluded by NLRB v. Express Publishing Co., supra, 312 U.S. at 426 from issuing a broad cease-and-desist order to remedy a sole 8(a)(5) violation. We recognize that "to justify an order restraining other violations, it must appear that with the judge that a broad cease-and-desist order is nec- essary and warranted to remedy the unfair labor practice found. See, e.g., ADT, LLC, 371 NLRB No. 67, slip op. at 11 (2022) (finding broad cease-and-desist order war- ranted in 8(a)(5) case based on respondent’s history of un- fair labor practices), enfd. 2022 U.S. App. LEXIS 33453 (7th Cir. 2022).14 ORDER The National Labor Relations Board orders that the Re- spondent, Grill Concepts Services, Inc. d/b/a The Daily Grill, Los Angeles, CA, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain in good faith with UNITE HERE Local 11 (“the Union”) as the exclusive collective-bargaining representative of the employees in following appropriate bargaining unit: All non-supervisory employees employed by Grill Concepts Services, Inc., d/b/a The Daily Grill at its restaurant located at 5410 West Century Boulevard, Los Angeles, CA 90045. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Beginning within 15 days of the Union’s request, meet with the Union at reasonable times and bargain in good faith with the Union as the exclusive collective-bar- gaining representative of the employees in the above- they bear some resemblance to that which the employer has committed or that danger of their commission in the future is to be anticipated from the course of his conduct in the past." Id. at 437. As explained by the Court in a subsequent case, however, Express Publishing "recognized that it was within the power of the Board to make an order precisely like [the broad order at issue here]. It merely held that whether such an inclu- sive provision . . . is justified in a particular case depends upon the cir- cumstances of the particular case before the Board." NLRB v. Cheney California Lumber Co., 327 U.S. 385, 387 (1946). The standard that the Board has utilized for decades in determining whether such an order is justified has been that set forth in Hickmott Foods, supra, 242 NLRB at 1357. The Board adopted the Hickmott standard to delineate two situa- tions in which a broad cease-and-desist order is "essential to accomplish the purposes of the Act," specifically, where a respondent either mani- fests a proclivity to violate the Act or where it engages in egregious or widespread misconduct. In either situation, the Board reviews the total- ity of circumstances to ascertain whether the respondent's specific un- lawful conduct manifests "an attitude of opposition to the purposes of the Act to protect the rights of employees generally," id., providing an ob- jective basis for enjoining a reasonably-anticipated future threat to any of those Sec. 7 employee rights. As stated at length above, we find a broad cease-and-desist order necessitated by the Respondent’s demon- strated proclivity to violate the Act, having shown a propensity for in- fringing upon the rights of the bargaining-unit employees at issue in this case. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 described bargaining unit concerning terms and conditions of employment and, if an understanding is reached, em- body the understanding in a signed agreement. Upon the Union’s request, such bargaining sessions shall be held for a minimum of 24 hours per month, for at least 6 hours per bargaining session, or, in the alternative, on another schedule to which the Union agrees. The Respondent shall submit written bargaining progress reports every 30 days to the compliance officer for Region 31, serving cop- ies thereof on the Union. (b) Compensate the Union for all bargaining expenses it incurred during the period beginning November 11, 2020, through the date that good-faith negotiations ulti- mately begin, including any lost wages the Union paid to employee bargaining committee members for bargaining conducted during working hours. Upon receipt of a veri- fied statement of costs and expenses from the Union, the Respondent promptly shall submit a reimbursement pay- ment, in the amount of those costs and expenses, to the compliance officer for Region 31, who will document re- ceipt and forward the payment to the Union. (c) Make whole any affected employee negotiators for any earnings lost while attending bargaining sessions in the manner set forth in the remedy section of the judge’s decision as amended in this decision, to the extent those earnings were not reimbursed by the Union. (d) Compensate affected employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 31, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. (e) File with the Regional Director for Region 31, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of each backpay recipient’s corresponding W-2 forms reflecting the backpay award. (f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, social 15 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tice must be posted within 14 days after the facility reopens and a sub- stantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (g) Post at its facility in Los Angeles, California, copies of the attached notice marked “Appendix” in both English and Spanish.15 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecu- tive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be dis- tributed electronically, such as by email, posting on an in- tranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its em- ployees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall dupli- cate 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 November 11, 2020. (h) Hold a meeting or meetings during work hours at its facility in Los Angeles, California, scheduled to ensure the widest possible attendance of bargaining unit employ- ees, at which the attached notice marked “Appendix” will be read to employees in both English and Spanish by a high-ranking management official of the Respondent in the presence of a Board Agent and an agent of the Union if the Region or the Union so desires, or, at the Respond- ent’s option, by a Board agent in the presence of a high- ranking management official of the Respondent and, if the Union so desires, the presence of an agent of the Union. (i) Within 21 days after service by the Region, file with the Regional Director for Region 31 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. December 16, 2022 means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” GRILL CONCEPTS SERVICES, INC. D/B/A THE DAILY GRILL 7 ______________________________________ John F. Ring, Member ________________________________________ Gwynne A. Wilcox, Member ________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vi- olated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT fail and refuse to recognize and bargain with UNITE HERE Local 11 (the Union) as the exclusive collective-bargaining representative of our employees in the following appropriate bargaining unit: All non-supervisory employees employed by Grill Concepts Services, Inc., d/b/a The Daily Grill at its restaurant located at 5410 West Century Boulevard, Los Angeles, CA 90045. WE WILL NOT in any other manner interfere with, re- strain, or coerce you in the exercise of the rights listed above. WE WILL, beginning within 15 days of the Union’s re- quest, meet with the Union at reasonable times and bar- gain in good faith with the Union as your exclusive bar- gaining representative concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a written agreement. Upon the Un- ion's request, such bargaining sessions shall be held for a minimum of 24 hours per month, or in the alternative on another schedule to which the Union agrees. WE WILL submit written bargaining progress reports every 30 days to the compliance officer for Region 31, and WE WILL serve copies of these reports on the Union. WE WILL compensate the Union for all bargaining ex- penses it incurred from November 11, 2020, until such time as we begin bargaining in good faith, including any lost wages the Union paid to employee bargaining com- mittee members for bargaining conducted during working hours. WE WILL make whole any affected employee negotia- tors for any earnings lost while attending bargaining ses- sions, plus interest, to the extent those earnings were not reimbursed by the Union. WE WILL compensate affected employees for the ad- verse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Di- rector for Region 31, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. WE WILL file the Regional Director for Region 31, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of each backpay recipient’s corresponding W-2 forms reflecting the backpay award. GRILL CONCEPTS SERVICES, INC. D/B/A THE DAILY GRILL The Board’s decision can be found at https://www.nlrb.gov/case/31-CA-276950 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., Room 5011, Washington, DC 20570, or by calling (202) 273-1940. Jake Yocham, Esq., for the General Counsel. David A. Campbell Esq., and Andrea V. Arnold, Esq. (Lewis Brisbois Bisgaard & Smith, LLP), for the Respondent. Jeremy Blasi, for the Charging Party. DECISION STATEMENT OF THE CASE DICKIE MONTEMAYOR, Administrative Law Judge. This case DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 was tried before me on January 10–11, 2022, via the Zoom for Government videoconferencing platform. Charging Party filed a charge on May 10, 2021. A complaint was issued on October 6, 2021. The complaint alleged violations by Grill Concepts Ser- vices Inc. d/b/a The Daily (the Respondent) of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended (the Act). Respondent filed an answer to the complaint denying that it violated the Act. The parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross- examine witnesses, and to file briefs which were received on February 15, 2022. I carefully observed the demeanor of the wit- nesses as they testified, and I rely on those observations in mak- ing credibility determinations. I have studied the whole record, the posttrial briefs, and the authorities cited. Based on the de- tailed findings and analysis below, I conclude and find the Re- spondent violated the Act essentially as alleged in the complaint. 1 FINDINGS OF FACT I. JURISDICTION The complaint alleges, and I find that (a) At all material times, Respondent has been a corporation with an office and place of business in Los Angeles, California, where it is engaged in the nationwide operation of restaurants. (b) In conducting its operations during the 12-month period ending September 14, 2021, Respondent derived gross revenues in excess of $500,000. (c) Respondent purchased and received at its California loca- tions goods and services valued in excess of $5000 directly from points outside the State of California. (d) At all material times, Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. (e) At all material times, the Union has been a labor organi- zation within the meaning of Section 2(5) of the Act. (f) At all material times, Respondent’s counsel and chief ne- gotiator has been an agent of Respondent within the meaning of Section 2(13) of the Act. 2. (a) The following employees of Respondent (the Unit) con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: INCLUDED: All non-supervisory employees employed by Grill Concepts Services, Inc., d/b/a The Daily Grill at its res- taurant located at 5410 West Century Boulevard, Los Angeles, CA 90045. EXCLUDED: All managers, office clerical employees and guards, professional employees, and supervisors as defined in the Act (b) On July 24, 2019, the Board certified the Union as the ex- clusive collective-bargaining representative of the Unit. (c) At all times since July 24, 2019, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining 1 Although I have included citations to the record to highlight partic- ular testimony or exhibits, my findings and conclusions are not based solely on those specific record citations, but rather on my review and representative of the Unit. II. ALLEGED UNFAIR LABOR PRACTICES Factual Background Many of the facts in this case are undisputed. After Board cer- tification the union reached out the company to initiate bargain- ing. This occurred on July 24, 2019. It wasn’t until August 5, 2019, that the union was informed that a new firm represented the company. The first bargaining sessions were held November 12, and 13. Approximately 2 weeks prior to the first meeting (on October 29, 2019), the Union Counsel Blasi sent Respondent its first set of noneconomic proposals which were patterned after another CBA which covered other Westin employees. (GC Exh. 8.) Respondent did not provide any proposals prior to the first meeting. At the first meeting, the Company’s representation was led by Chief Negotiator David Campbell, the union’s representation was led by Chief Negotiator Karine Mansoorian. At the start of the meeting, Respondent provided a set of 11 noneconomic pro- posals. (GC Exh. 12.) The meetings lasted approximately 5 hours during which the noneconomic proposals of each party were discussed. During these first meetings Respondent agreed to only one part of the union’s proposal. A proposal that merely mirrored California overtime law. (GC Exh. 29.) At the end of these sessions the Union requested bargaining dates. Based on the Respondent’s representations of unavailability, the parties agreed to schedule bargaining sessions for February 4 and 5, 2020. By request of Respondent these dates were delayed to February 26, and 27, 2021, some 10 weeks after the initial ses- sions. (GC Exh. 13.) Prior to the February 26–27, 2021, sessions the Union submit- ted 11 additional proposals. (GC Exh. 14.) These meetings lasted approximately 5 hours each day. The parties discussed the union proposals but did not reach any agreement on any items. At this meeting, Campbell advised Mansoorian that he didn’t want to reach any partial tentative agreements. (Tr. 57.) At the conclusion of the meeting the union requested future dates for bargaining, but none were set. On March 4, 2020, the parties had a brief phone call that lasted approximately 30 minutes. Prior to the call the union submitted proposals. (GC Exh. 15.) There were no agreements reached on any topic and the Respondent did not present any proposals dur- ing the meeting. (Tr. 62.) At the end of the call Mansoorian requested bargaining dates. On March 11, 2020, Mansoorian sent an email to Campbell requesting bargaining dates. Campbell responded that he would send “an email setting forth our plan later today” but failed to do so. (GC Exh. 16.) On April 4, 2020, Mansoorian again emailed Campbell a new union proposal despite not having heard back from him. The proposal concerned the process for the layoff and recall of employees related to the COVID-19 pandemic. Camp- bell responded with a single sentence email which stated, “I will run it by the client.” (GC Exh. 17.) consideration of the entire record for this case. My findings of fact en- compass the credible testimony and evidence presented at trial, as well as logical inferences drawn therefrom. GRILL CONCEPTS SERVICES, INC. D/B/A THE DAILY GRILL 9 On April 23, 2020, Mansoorian after having received no re- sponse to the April 4, 2020, email again emailed Campbell ask- ing, “when are we expected to hear from you?” (GC Exh. 18). On May 14, 202(?) Mansoorian again emailed Campbell regarding the previously submitted recall proposal. Her email stated, “[t]he union sent you a proposal regarding re- call, I’ve followed up with you and you have not responded, we need a response from you on that issue. Also, we are asking for dates to resume bargaining for Daily Grill, we could do it by phone or zoom whichever is more convenient, please send us dates soon.” (GC Exh. 19.) Campbell did not respond until May 23, 2020. In his response he stated in part, “why don’t we set up a call to talk this coming week.” (GC Exh. 19.) He did not set up a call the next week and on June 1, 2021, Mansoorian emailed him stating, “I haven’t heard back from you regarding dates, can you do Monday the 8th, anytime from 11 a.m. to 3 p.m. pst or Thursday anytime from 11 a.m. pst on, and Friday from noon pst on. Please let me know which one works for you, hopefully we can resolve our issues.” (GC Exh. 19.) Campbell agreed to meet by phone on June 8, 2021. The call lasted approximately 15 minutes. The conversation centered generally around the issue of staffing and the potential recall of employees. No agreement was reached re- garding any topic. On June 16, 2020, Mansoorian contacted Campbell to express her concerns about the company unilaterally terminating em- ployees without any union notification and requested infor- mation regarding such. In her email she stated, “[t]he Union was informed by some of our members at Daily Grill that the restau- rant sent them a letter stating that their position has been elimi- nated and they have been laid off. We are shocked that the res- taurant didn’t communicate with the Union, the employees’ rep- resentative, and chose to direct deal with workers and proceed unilaterally to terminate them. Please send us a complete list of all employees to whom the Company has sent the same or similar communications, including the employees’ classification and date of hire, and a copy of the letter sent to each employee. If you have sent communications conveying a different message to employees please provide us with copies of those communica- tions, as well. We ask that you reverse this action until we have a chance to negotiate. Awaiting your timely response.” (GC Exh. 20.) Campbell responded, “I told you on our call that the restau- rant would be reopening with a much smaller staff and that the employees selected for reopening had already been made by the Company. You informed me that you understood that the restau- rant would have to have a reduced staff due to Covid. I am not certain why these member communications would be a surprise.” (GC Exh. 20.) On June 19, 2020, another call was held. Prior to the call the union sent a set of proposals. The call lasted approximately an hour. Mansoorian reiterated her concerns raised in her June 16, 2020 email. Mansoorian shifted the conversations to discuss the Union’s bargaining proposals. Campbell indicted that Respond- ent didn’t have any proposals and was interested in only having “a general conversation.” (Tr. 80.) Mansoorian requested that the employer provide a staffing plan and tender a proposal. The Company did not provide a staffing plan nor make any proposal. In fact, the company did not present any proposals or counter proposals nor was any agreement reached on any subject. At the conclusion of this meeting the union asked to set bargaining dates, but none were set. On June 25, 2020, the Union sent a request for information on the status of each employee requesting information regarding which employees were sent termination notices and copies of the notices. (GC Exh. 22.) On July 6, 2020, Campbell responded with information regarding which employees were terminated. (U. Exh. 2A, B, C.) On July 24, 2020, Mansoorian requested dates to resume bar- gaining. (GC Exh. 23.) On September 4, 2020, she again re- quested dates. (GC Exh. 36.) On October 2, 2020, she sent an- other request which stated, “I am following up about scheduling a call, please send us your availability, we have been prepared for weeks. Please get back to us soon.” (GC Exh. 37.) She sent similar requests on October 24, 2020, November 17, 2020. (GC Exh. 24, 25.) After nearly 6 months Campbell finally responded on Novem- ber 19, 2020, offering to meet on Friday December 11, 2020 at 11 a.m. Campbell later indicated his desire to move the time of the meeting to 4 p.m. At this meeting Campbell began the meet- ing by proclaiming that, “Cesar is not ready to negotiate.” (GC Exh. 34.) During the 30-minute Zoom video meeting Respond- ent presented no proposals or counter proposals and didn’t allow the union to present any proposals or counterproposals. No agreements were reached on any subject and the union requested bargaining dates. The parties met again on January 13, 2021. Prior to this meet- ing the union sent 10 new bargaining proposals. (GC Exh. 27.) At the January 13, 2021, call Campbell started out by suggesting that the parties continue their discussions in 60 days given the changes the restaurant was undergoing due to COVID-19. Man- soorian attempted to engage Respondent in discussions that COVID-19 would not impact such as grievance procedures and shop stewards. At one point in the discussions a seemingly frus- trated Mansoorian stated, “you have dragged this out. You refuse to meet with us. And then when we meet you are saying we don't even talk about it. You are not even interested in hearing our proposals.” (GC Exh. 35.) At one point in the conversation Campbell stated, “[w]e just don't know enough today to negoti- ate a contract. We don't want to get into bargaining and pro- posals.” (GC Exh. 35.) Mansoorian in response stated, “It sounds like you are refusing to even consider our proposals. That is all it's going to cost you is half hour of our time. I've never seen a situation like this.” (GC Exh. 35.) Campbell proposed new dates of March 8 of 15, 2021, to continue the discussions. Union Counsel Blasi responded, “[w]e have 160 employers. You are the only employer taking the position that there is no subject of bargaining you are willing to discuss, even if we are essentially accepting your proposals.” (GC Exh. 35.) The call was con- cluded in approximately 30 minutes. On February 19, March 4, 12, and 18, 2021, the union at- tempted to schedule bargaining dates. The only response re- ceived to any of the requests was a March 4 response from Campbell which stated that he was “working on available dates.” (GC Exh. 28.) On April 30, 2021, Blasi again wrote Campbell this email stated, “I write yet again to request that Grill Concepts provide dates to bargain. As you know, I wrote to you previously DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 on February 19, March 4, March 12, and March 18 and yet you have still offered no dates to meet and ignored my last two fol- low-up emails. This was after the Company refused to discuss any bargaining proposals at our last two meetings in December 2020 and January 2021. The Company's approach reflects brazen disregard for its legal obligation to engage in good faith bargain- ing with the Union.” (GC Exh. 28.) On May 10, 2021, after re- ceiving no response to its emails the charge was filed. There were no subsequent communications between Respondent and the un- ion from April 30, 2021, to the time of the issuance of the com- plaint. (Tr. 109.) Analysis Section 8(d) of the Act defines the duty to bargain collectively as “the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment . . . but such obligation does not compel either party to agree to a proposal or require the mak- ing of a concession.” Good-faith bargaining “presupposes a de- sire to reach ultimate agreement, to enter into a collective bar- gaining contract.” NLRB v. Insurance Agents’ Union, 361 U.S. 477, 485 (1960). In determining whether a party has violated its statutory duty to bargain in good faith, the Board examines the totality of the party’s conduct, both at and away from the bargaining table. See, e.g., Overnite Transportation Co., 296 NLRB 669, 671 (1989), enfd. 938 F.2d 815 (7th Cir. 1991); Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984). From the context of an employer’s total conduct, it must be decided whether the employer is engag- ing in hard but lawful bargaining to achieve a contract that it considers desirable or is unlawfully endeavoring to frustrate the possibility of arriving at any agreement. Under the NLRA nei- ther the Board nor the courts may compel concessions or other- wise sit in judgment upon the substantive terms of collective- bargaining agreements. NLRB v. American National Insurance Co., 343 U.S. 395, 403–404 (1952). However, “[e]nforcement of the obligation to bargain collectively is crucial to the [NLRA] statutory scheme.” Id., at 402. See Public Service Company of Oklahoma, 334 NLRB 487 (2001). Any objective review of the evidence in this case leads to the inescapable conclusion that Respondent violated its duty to bar- gain in good faith. The facts established that Respondent pro- vided dates 10 weeks into the future, cancelled dates, delayed meeting for 25 weeks, ignored bargaining requests, and failed to schedule meetings despite six separate requests from the union. The delays themselves (including the 25-week delay) are suffi- cient in themselves to establish a violation. See Fruehauf Trailer Services, 335 NLRB 393, 393 (2001), wherein the Board predi- cated its finding of a violation on a 3 month delay. When respondent did agree to meet, at least five of the ses- sions were short conference calls that lasted in total 2 hours and 45 minutes. The Board has on many occasions reiterated that an employer must make “expeditious and prompt arrangements” to meet and confer, Professional Transportation, Inc., 362 NLRB 534, 540 (2015), quoting J.H. Rutter-Rex Mfg. Co., 86 NLRB 470, 506 (1949), and to do so with the same “degree of diligence” that the employer would display in other “important business matters,” Quality Motels of Colorado, 189 NLRB 332, 336–337 (1971) (quoting J. H. Rutter-Rex, supra), enfd. 462 F.2d 1375 (10th Cir. 1972); see also Fruehauf Trailer Services, 335 NLRB 393, 403 (2001). Nothing in the record suggests that Respondent exercised the diligence required of an “important business matter.” During the 16-month period from November 13, 2019, until the charge was filed, Respondent took part in 9 sessions, 5 of which lasted no longer than an hour for a total of 12 hours and 45 minutes. For the period from February 27, 2020, through the filing of the charge on May 10, 2021, Respondent met for a mere 2 hours and 45 minutes. In Calex Corp, 322 NLRB 977 (1997), the Board held that 20 sessions in a 15-month period was insufficient to meet a Respondent’s obligations. In Garden Ridge Management, Inc., 347 NLRB 131 (2006), the Board held that meeting for only 20 bargaining sessions over an 11 month period violated the Act. The number of scheduled sessions in this case falls below the baseline standards articulated by the Board. See also Bryant & Stratton Business Institute, 321 NLRB 1007, 1042 (1996) (find- ing that employer failed to meet at reasonable times where it would only bargain approximately 1 day per month, limited the time available for bargaining by insisting on meeting in the late afternoon and then leaving early to catch a flight, and was gen- erally reluctant to schedule multiple bargaining dates in ad- vance), enfd. 140 F.3d 169 (2d Cir. 1998). Aside from the dilatory tactics, Respondent’s conduct during the limited number of sessions revealed a lack of severe intent to reach an agreement during the sessions. Respondent tendered only a single set of proposals during the entire time frame. Even though the union on seven occasions submitted proposals and repeatedly expressed a clear willingness to engage in good faith, Respondent repeatedly failed to make any counter proposals. The only item that the parties were able to come to agreement was a single provision which merely restated California overtime law requiring employees to be paid overtime if they work over 40 hours in a week. Surface bargaining is defined as ‘going through the motions of negotiating’ without any real intent to reach an agreement.” K–Mart Corp. v. NLRB, 626 F.2d 704, 706 (9th Cir.1980). Re- spondent’s conduct meets the very definition of surface bargain- ing. The totality of the evidence and the pattern of conduct es- tablishes that the employer’s actions lacked any real intent to reach agreement and instead were calculated to stall and thwart the entire process of reaching an agreement with the employees chosen representative. Respondent’s continued refusal to en- gage and make counter proposals makes clear it was guided by bad faith in an effort to frustrate the bargaining process and to force the Union to waste time and resources. See Noah’s Ark Processors, LLC, 370 NLRB No. 74 (2021). Respondent also violated its duty under Section 8(d) when it simply refused to meet and bargain despite its obligation to do so. Since December 11, 2020, after a 6-month delay, it clearly indicated its unwillingness to discuss any proposals. This un- willingness was again reiterated on January 13, 2021, and later by refusing to even acknowledge the Union’s repeated requests for dates. This conduct of outright refusal to bargain is tanta- mount to a refusal to recognize the lawful representative of the employees and standing alone is unlawful. Siemen’s Building GRILL CONCEPTS SERVICES, INC. D/B/A THE DAILY GRILL 11 Technologies, Inc., 345 NLRB 1108 (2005). Respondent’s Affirmative Defenses 1. The Timeliness of the Complaint Respondent asserts that the complaint was not timely filed un- der 29 U.S.C Section 10(b) which mandates that “no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge.” Respondent asserts that November 19, 2019, should be the date attributed to the allegations and therefore the complaint was untimely filed. While it is true that considering the totality of the evidence, the Company’s bad faith dates back to November 19, 2019, as evi- denced by its continued pattern of dilatory tactics and bad faith negotiation, it does not necessarily follow that this renders the complaint time barred. The reason for this is simple. The failure to bargain in bad faith was not a single discreet incident but ra- ther a pattern of conduct which occurred over time. The burden of establishing that a party has “clear and unequivocal notice” and thus the starting of the time clock is on the Respondent. Al- lied Production Workers Local 12, 337 NLRB 16 (2001). Re- spondent failed to meet this burden to show that the Union had notice outside the time period. The evidence of record estab- lished that it was only after repeated attempts to schedule, refusal by Respondent to even acknowledge communications, and out- right refusal to bargain that the Union had “clear” and “unequiv- ocal notice.” (GC. Exh. 28.) This was well within the 10(b) period. The complaint was therefore timely filed. 2. The Loss of Majority Support Respondent asserts that the complaint must be dismissed be- cause while the complaint was pending the Union lost majority support. Given the findings discussed above such a dismissal would afford Respondent the opportunity to benefit from failing to adhere to its statutory obligation. Respondent’s position ig- nores the fact that a certified union enjoys an irrebuttable pre- sumption and must be recognized for a full year and that in cases such as this where the employer fails to bargain in good faith that year period is tolled until the employer begins to bargain in good faith. Virginia Mason Medical Center, 558 F.3d 891, 895(9th Cir. 2009). Mar-Jac Poultry Co., 136 NLRB 785 (1962). In view of Respondent’s unlawful conduct, it is precluded from estab- lishing loss of majority support. 3. Respondent’s Other Affirmative Defenses Respondent raised other affirmative defenses which from a re- view of Respondent’s brief appear to have been abandoned in- cluding failure to state a claim upon which relief can be granted; waiver; estoppel; ratification; acquiescence; accord; satisfaction; unclean hands; remedies sought in the complaint are contrary to Board authority and to the Section 7 rights of the employees in question; the Union withdrew from the unit; and the remedy sought in the complaint is contrary to the Board’s powers granted by the Act. Absent abandonment there is simply no evidence in the record which would support the defenses or stated differently each of these affirmative defenses lacks the legal or factual evi- dentiary basis to support any finding in favor of Respondent. Similarly, an affirmative defense related to Respondent’s bankruptcy filing or the Covid-19 pandemic lack merit. As for the bankruptcy claim, it is well established that the filing of bankruptcy does not relieve an employer of its obligations under the NLRA. NLRB v. Bildisco and Bildisco, 465 U.S. 513 (1984). To the extent that Respondent suggests that COVID-19 gov- ernmental restrictions amount to an affirmative defense to the performance of its statutory obligations I am not persuaded. Any analysis of a putative COVID-19 “affirmative defense” must be examined against the backdrop of the fundamental public policy underpinnings of the Act. The NLRA provides that it is “the policy of the United States,” to “encourag[e] the practice and procedure of collective bargaining.” Section 1, 29 U.S.C. Section 151. The occurrence of COVID-19 does not negate the stated policy of the Act. Nor has the Board issued any decision which stands for the proposition that the occurrence of COVID-19 re- lieves an employer of any of its duties under the Act. It should be noted that there is no state or federal COVID-19 guideline that precluded bargaining. It should also be noted that Respondent’s dilatory tactics and bad-faith bargaining posture took place be- fore during and after state and federal restrictions took place. The unrebutted evidence of record is that the union was actively engaged in bargaining with other employers during this very same period. Given the stated policy set forth directly in the Act and the lack of any clear and direct Board authority to support casting aside the policy, there is simply no legal rationale to sup- port the invention of an affirmative defense relating to this issue. To do so would directly interfere with Act’s protections at a time when those very protections and policy considerations are most relevant and needed. While the Board has held that in some cir- cumstances an employer in an emergency may unilaterally take actions. See Sea Port Printing Ad & Specialties, Inc., 351 NLRB 1269 (2007), the Board has not held that during the Covid-19 pandemic an employer may refuse to meet at reasonable times and confer good faith, engage in dilatory tactics, surface bargain- ing, and flat out refuse to bargain.2 I therefore find that the af- firmative defenses presented are without merit. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Unite Here Local 11, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Union has been the exclusive representative for the pur- poses of collective bargaining of the employees in the following bargaining unit pursuant to 9(a) of the Act: All non-supervisory employees employed by Grill Concepts Services, Inc., d/b/a The Daily Grill at its restaurant located at 5410 West Century Boulevard, Los Angeles, CA 90045. 4. By failing to meet at reasonable times and confer in good faith, engaging in delay tactics, restricting the time available to bargain, engaging in surface and bad faith bargaining and refus- ing to bargain with the Union as the exclusive representative for the purposes of collective bargaining of the bargaining unit em- ployees the Respondent violated Section 8(a)(5) and (1) of the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 Act. 5. The unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended3 ORDER Having found Respondent has engaged in certain unfair labor practices, I find Respondent must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act: 1. Cease and desist from (a) Failing and refusing to bargain in good faith with Unite Here Local 11, as the exclusive certified bargaining representa- tive of unit employees. (b) Failing and refusing to meet at reasonable times for bar- gaining with Unite Here Local 11. (c) Failing and refusing to respond to bargaining proposals offered to it by Unite Here Local 11. (d) The Company’s bad faith conduct, and dilatory tactics also warrant issuance of a broad cease and desist order. See Hick- mott Foods, Inc., 242 NLRB 1357, 1357 (1979) (broad order warranted where respondent’s “egregious or widespread miscon- duct” demonstrated “a general disregard for the employees’ fun- damental statutory rights.” (e) In any like or related manner failing and refusing to bar- gain collectively and in good faith with Unite here Local 11. 2. Take the following affirmative action necessary to effectu- ate the policies of the Act. (a) Respondent shall meet with the Union on request and bar- gain in good faith concerning the terms and conditions of em- ployment of the bargaining unit employees and, if an agreement is reached, embody such agreement in a signed contract. (b) The Company’s violations also warrant an affirmative bargaining schedule requiring the Respondent to bargain with the Union on request for a minimum of 24 hours per month for at least 6 hours per bargaining session, or on an alternative sched- ule to which the Union agrees. See, e.g., UPS Supply Chain So- lutions, Inc., 366 NLRB No. 111, slip op. at 4 (2018). Respond- ent shall also be required to submit written bargaining progress reports every 30 days to the compliance officer for Region 31 and to serve copies on the Union. (c) Respondent shall read the attached notice aloud to em- ployees at the West Century Blvd. Los Angeles California facil- ity. This is an “‘effective but moderate way to let in a warming wind of information and, more important, reassurance’ to the bargaining unit employees that their rights under the Act will not be violated in the future.” International Shipping Agency, Inc., 369 NLRB No. 79, slip op. at 8 (2020) (quoting J.P. Stevens & Co. v. NLRB, 417 F.2d 533, 540 (5th Cir. 1969)). Respondent shall hold a meeting or meetings during working hours at its Los Angeles California facility, scheduled to ensure the widest pos- sible attendance of employees, at which the remedial notice is to be read to employees by a high-ranking manager in the presence of a Board agent and a union representative if the Region or the 3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Union so desires, or, at the Respondent’s option, by a Board agent in the presence of management and, if the Union so desires, a union representative. Aa union representative shall be afforded the opportunity to make an audio-visual recording of the notice reading. See, e.g., Ozburn-Hessey Logistics, LLC, 366 NLRB No. 177 (2018), affd. in relevant part 803 Fed.Appx. 876 (6th Cir. 2020). (d) Respondent shall post at its Los Angeles, California facil- ity copies of the attached notice marked “Appendix.” Copies of the notice, on forms provided by the Regional Director for Re- gion 31, after being signed by the Respondent’s authorized rep- resentative, 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 ad- dition to physical posting of paper notices, notices shall be dis- tributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respond- ent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to en- sure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since November 12, 2019. (e) Respondent’s persistent unlawful conduct since Novem- ber 19, 2019, warrants a full 12-month extension of the certifi- cation year from the date good faith bargaining begins. Mar-Jac Poultry Co., 136 NLRB 785, 786–787 (1962) (extension of the certification year is warranted where employer commits unfair labor practices during the initial certification year). (f) By deliberately engaging in dilatory conduct, surface bar- gaining and refusal to bargain, Respondent’s actions directly caused the Union to waste resources in futile bargaining. Ac- cordingly in order to make the union whole and ensure a return to the status quo at the bargaining table the Respondent shall re- imburse the Union for expenses it incurred from November 19, 2019, until good-faith bargaining resumes. Such expenses may include, all reasonable expenses including but not limited to rea- sonable salaries, travel expenses, and perdiems. See J.P. Stevens & Co., 239 NLRB 738 (1978), remanded on other grounds 623 F.2d 322 (4th Cir. 1980), denied 449 U.S. 1077 (1981). (g) Within 21 days after service by the Region, file with the Regional Director for Region 31 a sworn certificate of a respon- sible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. March 15, 2022 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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. GRILL CONCEPTS SERVICES, INC. D/B/A THE DAILY GRILL 13 The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT fail and refuse to meet with the Unite Here Local 11 (the Union) at reasonable times for bargaining. WE WILL NOT refuse to meet regularly with Unite Here Local 11 for collective-bargaining negotiations. WE WILL NOT fail and refuse to bargain in good faith with the Union as the exclusive collective-bargaining representative of our employees in the bargaining unit. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union in good faith as the exclusive collective-bargaining representative of our em- ployees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: Such bargaining sessions shall be held for a minimum of 24 hours per month for at least 6 hours per bargaining session or, in the alternative, on another schedule to which the Union agrees, and we will submit written bargaining progress reports every 30 days to the compliance officer for Region 31, serving copies thereof on the Union. The certification year shall extend 12 months from the date we begin to bargain in good faith. WE WILL, within 14 days reimburse the union for bargaining expenses incurred as a result of our violations of the Act. GRILL CONCEPTS SERVICES, INC., D/B/A THE DAILY GRILL The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/31-CA-276950 or by using the QR code be- low. 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.