Borenstein Caterers, Inc.

373 NLRB No. 23 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. Borenstein Caterers, Inc. and UNITE HERE Local 100. Case 29–CA–299367 February 13, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY On April 26, 2023, Administrative Law Judge Benja- min W. Green issued the attached decision, and on May 4, 2023, he issued an errata. The Respondent filed excep- tions and a supporting brief, the General Counsel and Charging Party filed answering briefs, and the Respondent filed a reply 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,1 and conclusions and to 1 The Respondent has implicitly excepted to some of the judge’s cred- ibility findings. The Board’s established policy is not to overrule an ad- ministrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. We adopt the judge’s finding that the Respondent violated Sec. 8(a)(5) and (1) of the Act by refusing to furnish the Union with requested rele- vant information regarding the Respondent’s eligibility for the Payroll Support Program (PSP), a Federal program overseen by the Treasury De- partment that provides pandemic relief to eligible air carriers and con- tractors, including caterers. In its May 25, 2022, email to the Respond- ent, the Union sufficiently explained that, because the Respondent de- nied it was an airline caterer subject to the minimum wage set by the Port Authority of New York and New Jersey (Port Authority), the Union sought “documents referring to or showing [the Respondent’s] eligibility for PSP” to support the Union’s claim that the Respondent was an airline caterer. The Union’s request also stated that “[t]he Union is not seeking financial information, so you can redact that.” While the Respondent denies that the PSP and Port Authority definitions of “caterer” are the same, or that the parties effectively incorporated the Port Authority min- imum wage into their most recent collective-bargaining agreement, it is well-settled that the Board does not address the merits of a potential breach of contract claim in ruling on an information request. American Medical Response of Connecticut, Inc., 371 NLRB No. 106, slip op. at 2 fn. 4 (2022). Instead, “‘[p]otential or probable relevance is sufficient to give rise to an employer’s obligation to provide information.’” Murray American Energy, Inc. and the Monongalia County Coal Co., 370 NLRB No. 55, slip op. at 5 (2020) (quoting Disneyland Park, 350 NLRB 1256, 1258 (2007)); see also North Star Steel Co., 347 NLRB 1364, 1368 (2006) (“[I]t is necessary only to establish the probability that the desired information is relevant, and that it would be of use to the union in carry- ing out its statutory duties and responsibilities.”). In light of the substan- tial overlap between the PSP and Port Authority definitions of “caterer,” we agree with the judge that evidence that the Respondent held itself out adopt the recommended Order as modified and set forth in full below.2 ORDER The National Labor Relations Board orders that the Re- spondent, Borenstein Caterers, Inc., Jamaica, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with the Union, UNITE HERE Local 100, by failing and refusing to fur- nish the Union with requested information that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of the Re- spondent’s unit employees. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Furnish to the Union in a timely manner the infor- mation requested by the Union on May 25, 2022. (b) Post in English and Spanish at its Jamaica, New York facility, copies of the attached notice marked as a caterer for PSP purposes would be relevant to the Union’s claim that the Respondent is a caterer for the purpose of the Port Authority mini- mum wage. In addition, we observe that the Respondent does not dispute that, if found to be a “caterer” under the Port Authority’s definition, it would be required to pay the Port Authority minimum wage under the terms of their most recent collective-bargaining agreement. The Re- spondent’s argument that the parties agreed to arbitrate its status there- fore does not meaningfully challenge the judge’s finding that the parties effectively incorporated the Port Authority minimum wage into that agreement. Finally, we agree with the judge, for the reasons he states, that the Respondent failed to establish any other legitimate defense to the production of the requested information. Member Kaplan agrees with his colleagues that the Respondent vio- lated Sec. 8(a)(5) and (1). He notes, however, that the information re- quest on May 25, 2022, suggests that it “continues to request documents referring to or showing [the Respondent’s] eligibility for PSP” (empha- ses added). This language is confusing, especially insofar as it seems to tie the May 25 information request to a prior request for such documents that does not appear in the record. Accordingly, to err on the side of caution, Member Kaplan would clarify that, despite the phrase beginning “continues” in the May 25 information request, the Board’s Order does not entitle the Union to claim that it is entitled to information pertaining to any information request prior to May 25. Further, Member Kaplan would be more specific in the Board’s affirmative order, directing the Respondent to provide information about the basis on which the Re- spondent claimed eligibility to receive PSP money and to provide any portion of documents submitted to the Treasury Department in which the Respondent provided support for its assertion that it was eligible for PSP funds. In this way, he would limit the Respondent’s duty to provide non- presumptively relevant information to only that information addressing the grounds for relevancy established by the Union. 2 We shall modify the judge’s recommended Order to conform to the Board’s standard remedial language, and we shall substitute a new notice to conform to the Order as modified. Contrary to our colleague, we find that the Board’s standard remedial language is appropriate to remedy the violation found here. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 29, 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, copies of the notice to all current employees and former employees employed by the Respondent at any time since May 25, 2022. (c) Within 21 days after service by the Region, file with the Regional Director for Region 29 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. February 13, 2024 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member ________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 3 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 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 refuse to bargain collectively with the Un- ion, UNITE HERE Local 100, by failing and refusing to furnish it with requested information that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of our unit em- ployees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL furnish to the Union in a timely manner the information requested by the Union on May 25, 2022. BORENSTEINCATERERS, INC. The Board’s decision can be found at https://www.nlrb.gov/case/ 29-CA-299367 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 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.” BORENSTEIN CATERERS, INC. 3 Lynda Tooker, Esq., for the General Counsel. Jennifer M. Schmalz, Esq. (Ellenoff, Grossman & Schole LLP), for the Respondent. Kimberly C. Weber, Esq. (McCraken, Stemerman & Holsberry, LLP), for the Charging Party Union. DECISION STATEMENT OF THE CASE BENJAMIN W. GREEN, Administrative Law Judge. This is an information request case. On May 25, 2022, UNITE HERE Lo- cal 100 (the Union) requested that Borenstein Caterers, Inc. (the Respondent) provide documents referring to or showing the Re- spondent’s eligibility for the U.S. Government Payroll Support Program (PSP). The Union’s request for this information was for the purpose of determining whether, in seeking PSP funds, the Respondent described itself as an “airline caterer” that em- ploys bargaining unit employees as “airline catering workers,” thereby effectively admitting that unit employees were entitled to a certain minimum wage under applicable law and the parties’ collective bargaining agreement. I find herein that the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) as alleged in the complaint. The charge in this case was filed on July 14, 2022. A com- plaint issued on November 7, 2022 and the Respondent filed an answer thereto on November 21, 2022. This case was tried be- fore me by Zoom virtual technology on March 7, 2023. The par- ties also stipulated to various facts and exhibits. (Jt. Exh. 1)1 On the entire record, including my observation of the de- meanor of the witness, and after considering the post-hearing briefs filed by the General Counsel, the Union, and the Respond- ent, I render these FINDINGS OF FACT JURISDICTION AND LABOR ORGANIZATION STATUS The Respondent admits that it satisfies the commerce require- ments for jurisdiction and has been, at all relevant times, an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Respondent also admits that the Un- ion is a labor organization within the meaning of Section 2(5) of the Act. Accordingly, I find that this dispute affects commerce 1 Paragraphs 1-17 of the stipulation are cited herein as (Jt. Exh. 1 ¶ 1- 17) and documents attached to the stipulation as Exhibits A-K are cited herein as (Jt. Exh. 1(A)-1(K)). 2 The Respondent admits and I find that the contractual unit is appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. (Jt. Exh. 1 ¶ 3) and the Board has jurisdiction pursuant to Section 10(a) of the Act. ALLEGED UNFAIR LABOR PRACTICES The Respondent provides kosher food to airlines for in-flight consumption. (Tr. 27, 44-45) The Respondent employs unit em- ployees who prepare meals, put them on trolleys, and deliver them. (Tr. 26-27) (Jt. Exh. 1 ¶ 3, 1(A)) Unit employees worked under a collective-bargaining agreement (CBA) between the Re- spondent and the Union effective January 1, 2014 to December 31, 2017. (Jt. Exh. 1 ¶ 2, 1(A)) The bargaining unit is described in Article I of the CBA.2 (Jt. Exh. 1 ¶ 3) CBA Article VIII- Wages provided for annual wage adjustments “or wage adjust- ments required by law, whichever is greater.” (Jt. Exh. 1(A).) On April 1, 2019, the parties entered into a Memorandum of Agreement which extended, with some modifications, the CBA through August 31, 2020. (Jt. Exh. 1 ¶ 4, 1(B)) (Tr. 27) . Between 2020 and August 2022, the parties bargained for a successor agreement. (Tr. 27-28) In the course of these negoti- ations, the parties disputed whether the Respondent was an “air- line caterer” required by law to pay “airline catering workers” a minimum wage adopted by the Port Authority of New York and New Jersey (Port Authority). (Tr. 29-32) (G.C. Exh. 2(a)-2(b), 4) The Union asserted that the Port Authority minimum wage applied to the Respondent as an “airline caterer” while the Re- spondent denied such status and asserted that it was merely a “vendor.” (Tr. 28-29, 43-44) The Port Authority minimum wage has been $18 per hour since September 2022 and will in- crease to $19 per hour in September 2023. (G.C. Exh. 2(b)) Cur- rently, the Port Authority minimum wage is greater than the al- ternative contractual wage rate of unit line employees ($17/hour). (Jt. Exh. 1(C)) Effective September 2023, the Port Authority minimum wage will be greater than the alternative contractual wage rate of unit line employees ($17.25/hour), cooks ($18.75/hour), and store room employees ($18.75/hour). (Jt. Exh. 1(C)) In 2020 and 2021, the Respondent received funds pursuant to the PSP. (Jt. Exh. 1 ¶ 7) The Union learned that the Respondent received such funds in December 2021 as the information is pub- licly available on the website of the U.S. Treasury. (Tr. 33, 41- 42) It was the understanding of Union representative Dennis Diaz that only airlines and airline catering companies may qual- ify for the PSP.3 (Tr. 33, 41) The General Counsel introduced into evidence certain U.S. Treasury guidelines which describe “contractors” eligible for PSP funds as follows (G.C. Exh. 3(b)- (d)): 1) a person that performs, under contract with a passenger air carrier conducting operations under part 121 of title 14, Code of Federal Regulations: a) catering functions; or b) unctions on the property of an airport4 that are directly 3 Diaz was the only witness called to testify by the General Counsel and his testimony was credible and uncontested. The Respondent did not call any witnesses. 4 The Respondent’s facility is not located on airport property. (Tr. 33) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 related to air transportation of persons, property, or mail, in- cluding but not limited to the loading and unloading of property on aircraft, assistance to passengers under 14 C.F.R. part 382; security; airport ticketing and check-in functions; ground han- dling of aircraft; or aircraft cleaning and sanitization functions and waste removal; or 2) a subcontractor that performs the above functions. Those guidelines describe “catering functions” as “the prepa- ration, assembly, or both, of food, beverages, provisions, and re- lated supplies for delivery, and the delivery of such items, di- rectly to aircraft or to a location on or near airport property for subsequent delivery to aircraft.” (G.C. Exh. 3(b)-(d)) On December 16, 2021, Diaz sent, and Respondent Attorney Jennifer Schmalz received, the following email requesting that the Respondent provide documents related to the Respondent’s receipt of Payroll Protection Program (“PPP”) loans (Jt. Exh. 1 ¶ 8, 1(D)) (Tr. 36-37): On behalf of UNITEHERE Local 100, I am writing to request information related to the bargaining-unit and the Payroll Pro- tection Program. Specifically: 1. Has Borenstein received any approvals for loans under the federal government’s Payroll Protection Program? 2. Did Borenstein retain the Payroll Protection Program loan proceeds beyond May 7, 2020? This information is highly relevant to bargaining-unit employ- ees because “regardless of whether portions of the loan are later forgiven,” a full “75 percent of the PPP loan proceeds shall be used for payroll costs.” See Small Business Administration, In- terim Final Rule 1, question 1(r) (Apr. 2, 2020), available at https://home.treasury.gov/system/files/136/PPP-- IFRN%20FINAL.pdf (emphasis added). How Borenstein allo- cates those payroll costs directly affects UNITEHERE Local 100’s members. If Borenstein used any loan proceeds under Payroll Protection Program, then UNITEHERE Local 100 requests this additional information: 1. How much money in Payroll Protection Program loans was Borenstein approved for? 2. On what date did Borenstein received the Payroll Protection Program loan funds? 3. How did Borenstein use 75% of the Payroll Protection Pro- gram loans for payroll costs? How much money will be allo- cated for bargaining unit employees[?] On December 22, 2021, Diaz sent, and Schmalz received, an email modifying his previous request to apply to both PPP loans and PSP loans. (Jt. Exh. 1 ¶ 8, 1(D)) On January 9, 2022, Schmalz sent, and Diaz received, a letter rejecting the Union’s information requests for PPP and PSP in- formation. (Jt. Exh. 1 ¶ 9) The letter stated, in part, as follows (Jt. Exh. 1(E)): The union’s information request is rejected as it does not con- cern the bargaining unit employees’ terms and conditions of employment, and is therefore, not relevant. Borenstein has not asserted an inability to pay employees in accordance with the terms of the Collective Bargaining Agreement. As such, Local 100 is not entitled to such information and Borenstein will not provide any information in response to this request for infor- mation. See NLRB Division of Advice Memo re: Crowne Plaza O’Hare, Case 13-CA-25749 (finding union not entitled to in- formation regarding whether employer applied for or received any loans, payroll programs, or emergency relief funds). On January 18, 2022, Union Attorney Kimberley Weber sent, and Schmalz received, a letter further explaining the Union’s po- sition related to the PPP and PSP information request. (Jt. Exh. 1 ¶ 9) Therein, Weber questioned whether the Respondent was disclaiming an “inability to pay” in response to the Union’s pro- posals for a successor contract as opposed to the expired CBA. (Jt. Exh. 1(E)) Weber also asserted that knowing the dates the Respondent exhausted PSP funds would “help the Union know how long the Employer was or is required to maintain pay rates, benefits, and employment statuses.” Weber asserted that it was important to know how the Respondent planned to use PSP loans for the payroll costs of unit members. (Jt. Exh. 1(E)) In addition, Weber stated (Jt. Exh. 1(E)): Local 100 further seeks a better understanding of how Boren- stein represents its business given that Borenstein has rejected Local 100’s wage proposals by arguing that the Port Author- ity’s minimum wage laws do not apply to its business. Before the Port Authority, the Employer apparently claims that it is not an airline caterer. If the Employer is not an airline caterer, on what basis did it claim eligibility to receive PSP money? Knowing which minimum wages laws apply to the bargaining unit directly impacts the bargaining proposals that Local 100 will make. (Emphasis in original) On February 2, 2022, the Union filed charge 29-CA-290119. (Jt. Exh. 1 ¶ 10) The charge alleged that the Respondent violated Section 8(a)(5) of the Act by “failing and refusing to provide in- formation relevant to the parties’ bargaining positions including, but not limited to, the failure to provide information related to the Employer’s receipt of . . . [PSP] funds and layoffs.” (Jt. Exh. 1(F)) On March 17, 2022, the Respondent emailed a position state- ment to Region 29 in response to charge 29-CA-290119, which stated that the Respondent’s “argument for not providing the in- formation is outlined in my attached [January 9, 2022] corre- spondence to Mr. Diaz and is based upon the NLRB Advice Memo attached.” (Jt. Exh. 1 ¶ 11, 1(G)) On April 21, 2022, the Acting Regional Director for Region 29 issued a letter dismissing charge 29-CA-290119. (Jt. Exh. 1 ¶ 12, 1(H)) This short-form dismissal letter did not provide a reason for the decision to dismiss the charge. (Jt. Exh. 1(H)) The Union did not appeal the Acting Regional Director’s decision to dismiss. (Jt. Exh. 1 ¶ 13) (Tr. 37) On May 25, 2022, Diaz sent, and Schmalz received, the fol- lowing email (Jt. Exh 1 ¶ 14, 1(I)) (Tr. 38, 42, 46): BORENSTEIN CATERERS, INC. 5 We have on-going negotiations over the pay rates. Borenstein has said it’s [a] vendor, not an airline caterer, and so it’s not covered by the Port Authority minimum wage. Local 100 knows you got millions of government money through the Pay- roll Support Program (“PSP”). It is the Union’s understanding that airline caterers but not vendors were eligible for PSP money. Local 100 continues to request documents referring to or showing Borenstein’s eligibility for PSP. The Union is not seeking financial information, so you can redact that. Diaz testified that the Union disclaimed interest in the finan- cial information it had requested in December 2021 because the charge regarding the Respondent’s failure to produce such infor- mation had been dismissed. Rather, the Union determined that it only needed eligibility information (not financial information) which would show that the Respondent identified itself as an air- port catering company to obtain PSP funds. (Tr. 38, 42, 46) On June 8, 2022, at 6:59 a.m. EDT, Diaz sent, and Schmalz received, the following email regarding Diaz’s May 25, 2022 in- formation request (Jt. Exh. 1 ¶ 15, 1(J)): The Union has waited 14 days for this request and the Com- pany has failed to answer the email or provide the information. If we don’t get this information by the end of today we will proceed with legal action for failure to provide information to the Union. On June 8, 2022, at 5:48 a.m. PDT (8:48 a.m. EDT), Schmalz sent, and Weber received, the following email (Jt. Exh. 1 ¶ 16, 1(K)): Kim I am perplexed by this email from Dennis. My under- standing is you and Amanda are in the process of arranging an- other meeting for negotiations following the pension meeting we had with Bill Josem which was very helpful. The charge that was filed at the NLRB regarding the PSP in- formation was dismissed per the attached letter. Do you want me to respond to Dennis or would you prefer to handle it? Do we have a new date for negotiations? On June 8, 2022, at 9:12 a.m. PDT (12:12 p.m. EDT), Weber sent, and Schmalz received, an email response which stated, in part, as follows (Jt. Exh. 1 ¶ 16, 1(K)): You are right that the charge 29-CA-290119 was dismissed. That charge was dismissed as a request for financial infor- mation. The request below is not for financial information, so the request appears appropriate. I am sure that Dennis will grant an extension if Borenstein needs more time. But you’ll have to talk to him about that. On June 8, 2022, at 4:20 p.m. EDT, Schmalz sent, and Diaz received, an email response which stated that “the NLRB dis- missed the charge involving the Union’s request for, ‘infor- mation related to the Employer’s receipt of [PSP] funds.’” (Jt. 5 In their opening statements, Union and Respondent counsel both indicated that this wage dispute might be resolved through arbitration. (Tr. 15, 20) Exh 1 ¶ 15, 1(J)) Schmalz further stated that, “[i]n light of that dismissal, it is not clear exactly what documents you are seeking that Borenstein would be required to produce.” (Jt. Exh 1 ¶ 15, 1(J)) On June 15, 2022, Diaz sent, and Schmalz received, an email response to Schmalz’s June 8, 2022, 4:20 p.m. email, which stated, “Last request for the information in the email below that was requested on May 25. Please advise when we will get this information.” (Jt. Exh. 1 ¶ 15, 1(J)) The Respondent did not provide the information the Union re- quested on May 25, June 8, and June 15, 2022. The Respondent did not explain its refusal to provide information beyond what is referenced above and did not raise any concerns regarding the confidentiality of the requested information. (Tr. 38-39) On August 25, 2022, the parties executed a Tentative Agree- ment regarding terms for a successor collective bargaining agreement effective through August 31, 2026. (Jt. Exh. 1 ¶ 5). Pursuant to the Tentative Agreement, CBA Article VIII-Wages provides for the payment of certain wage rates “or the wage re- quired by law, whichever is greater.” (Jt. Exh. 1(C)) The Ten- tative Agreement further provides that CBA Article VIII-Wages will state (Jt. Exh. 1(C)): The parties recognize that the Employer and the Union have a dispute regarding the applicable minimum wage. The Union will seek a resolution of the minimum wage dispute.5 Nothing in this Article will constitute a waiver of the legal rights for any party. On August 30, 2022, the Tentative Agreement was ratified by the unit. (Jt. Exh. 1 ¶ 6) ANALYSIS The complaint alleges that the Respondent violated Section 8(a)(5) by failing to provide the Union with requested documents referring to or showing the Respondent’s eligibility for PSP. As part of the duty to bargain in good faith, an employer must provide a union with requested information that is relevant and necessary to the union’s representational duties. N.L.R. B. v. Acme Industrial, 385 U.S. 432, 435-436 (1967); N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149 (1956). Information relating to the wages, hours, and other terms and conditions of employment of unit employees is presumptively relevant and must be furnished unless the employer rebuts that presumption. A-1 Door & Build- ing Solutions, 356 NLRB 499, 500 (2011); North Star Steel Co., 347 NLRB 1364 (2006). If a request is not presumptively rele- vant, the Board uses a liberal discovery-type standard whereby it is only necessary for the union to establish the probability that the desired information might be relevant and of use to the union in carrying out its statutory responsibilities. North Star Steel Co., 347 NLRB 1364 (2006) citing N.L.R.B. v. Acme Industrial, 385 U.S. 432 (1967). Thus, a “union has satisfied its burden when it demonstrates a reasonable belief supported by objective evi- dence for requesting the information.” Shoppers Food Ware- house Corp., 315 NLRB 258, 259 (1994). Here, the requested information is not presumptively relevant because it does not directly relate to the terms and conditions of DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 employment of unit employees. However, the Union demon- strated relevance. The parties effectively incorporated into the CBA the Port Authority minimum wage upon a showing by the Union that the Respondent is an airport catering company. The Union reasonably believed that the Respondent could only ob- tain PSP funds by holding itself out as an airport catering com- pany subject to the Port Authority minimum wage. Thus, the Union advised the Respondent that it wanted the PSP eligibility information to confirm its ongoing position that the Port Author- ity minimum wage was the contractual wage rate. The Respondent initially defends against the instant infor- mation request allegation by asserting that the allegation is pre- cluded by the doctrines of res judicata or collateral estoppel. Specifically, the Respondent contends that res judicata precluded the complaint from alleging that the Respondent failed to provide information in response to the Union’s May/June 22 information request because Region 29 dismissed an allegation that the Re- spondent failed to produce information in response to the Un- ion’s December 2021 information requests. This defense fails for the following reasons. First, the December 2021 requests for information were dif- ferent than the May/June 2022 request for information. The De- cember 2021 requests sought financial information including any PPP and PSP funds the Respondent received, whether such funds were retained beyond May 7, 2020, and, if the Respondent used any of the money, how much was the Respondent approved for, the date the loans were received, if 75 percent of the money was used for payroll costs, and how much money would be allo- cated for unit employees. Conversely, on May 25 and June 8, 2022, the Union specifically advised the Respondent that finan- cial information was not being sought. Rather, the Union’s May/June 2022 request sought only the Respondent’s eligibility for PSP funds to determine whether the Respondent described itself to be an airport catering company that employed airport catering workers. The Respondent notes that, on January 18, 2022, Weber as- serted that the financial information requested in December 2021 might be used by the Union to determine whether the Respond- ent was an airline caterer. However, that the Union partially jus- tified the December 2021 requests for financial information on the same grounds it justified the May/June 2022 request for eli- gibility information does not change the fact that the Union re- quested different information in May/June 2022 than it had in December 2021. Indeed, the Union modified its information re- quest to exclude the financial information it originally sought be- cause Region 29 determined that the Union was not entitled to the same.6 6 The Respondent relies heavily but incorrectly on an advice memo- randum which issued in Crowne Plaza O’Hare, case 13-CA-259749. Advice memoranda reflect the position of the General Counsel on a case and are not binding on the Board. Further, the Crown Plaza O’Hare advice memorandum determined that certain financial information was not relevant absent a claim by the employer that it was unable to pay for union demands. Here, as noted above, in May/June 2022, the Union did not request financial information. 7 In Wolf Creek Nuclear Operating Corp., 365 NLRB No. 55 (2017), a Board majority determined that a Regional Director’s prior determina- tion in a unit-clarification proceeding that buyers were managerial Second, even if the December 2021 and May/June 2022 infor- mation requests were the same, the doctrine of res judicata would not apply. The Respondent refers in its brief to the treatment of that doctrine in Section 13-600 of the Bench Book. See Casino Pauma, 363 NLRB No. 60, slip op. at 1 fn.1 (2015); Allied Me- chanical Services, Inc., 352 NLRB 662, 662 (2008); Great Lakes Chemical Corp., 300 NLRB 1024, 2025 nn. 3 and 4 (1990); Har- vey’s Resort, 271 NLRB 306 (1984); Wolf Creek Nuclear Oper- ating Corp., 365 NLRB No. 55 (2017). However, the cases re- lied upon by the Respondent are inapposite as they largely in- volve situations where a party sought to preclude an allegation that was fully litigated before the Board.7 Here, the prior charge (29-CA-290119) was not fully litigated before the Board. Ra- ther, it was administratively dismissed by the Acting Regional Director before such litigation took place. See Tramont Manu- facturing, LLC, 365 NLRB No. 59, slip op. at 8 (2017); Dold Foods, Inc., 289 NLRB 1323, 1332 (1998). Third, a balancing of the equities does not require that the General Counsel be estopped from litigating the issue of whether the Union was entitled to information regarding the Respond- ent’s eligibility for PSP money. As discussed above, the allega- tion in charge 29-CA-290119 and the allegation in this case pre- sent different factual and legal issues. It is well settled that an employer is not generally required to produce financial infor- mation except to assess and confirm an assertion by that em- ployer that it is unable to pay for union demands. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153 (1956): North Star Steel Co., 347 NLRB 1364, 1370 (2006). Here, the allegation in charge 29– CA–290119 involved the production of financial information and the instant case does not. Further, the Region’s dismissal of the prior charge does not threaten to confuse the issues in this case and it will not work to the advantage of the General Counsel or prejudice the Respondent. Accordingly, the General Counsel is not collaterally estopped from pursuing all the factual and le- gal issues in this case as a result of the dismissal of the prior charge. See Tramont Manufacturing, LLC, 365 NLRB No. 59, slip op. at 8 (2017). In addition to a defense based on res judicata or estoppel, the Respondent contends that the information requested by the Un- ion is moot and no longer required to negotiate a successor con- tract since the parties have successfully concluded such negotia- tions. However, the parties effectively incorporated the Port Au- thority minimum wage into the new contract if the Union could show that the minimum wage applies to unit employees as air- port catering workers. Indeed, the parties specifically “recog- nize[d] that the [Respondent] and the Union have a dispute re- garding the applicable minimum wage” and that “[t]he Union employees precluded a finding by the Regional Director in a subsequent representation proceeding that buyers are statutory employees. How- ever, the majority largely relied upon language in Board Rule 102.67 as it pertains to proceedings before the Regional Director for the clarifica- tion of a bargaining unit. A ULP charge does not initiate a proceeding before the Regional Director and the Region’s investigation of that charge does not amount to “full litigation.” Rather, pursuant to Section 10(b) of the Act, a ULP charge allows a Regional Director to issue com- plaint upon the charged allegation in proceedings before an administra- tive law judge and/or the Board. BORENSTEIN CATERERS, INC. 7 will seek a resolution of the minimum wage dispute.” Thus, the parties left open the issue of the proper wage rate and the Union was entitled to persist in seeking information relevant to that out- standing matter. The information at issue in this case is relevant as it may support the Union’s ongoing position that the Port Au- thority minimum wage is the contractual wage rate. The Respondent further contends in a conclusory manner that “the information contained in PSP loan applications is highly confidential in nature.” However, an employer making for the first time at trial a “blanket claim” that information is confiden- tial, without more, does not satisfy its burden to prove it had a legitimate and substantial interest in protecting the information against disclosure which outweighs the requesting party’s need for it. American Medical Response of Connecticut, Inc., 371 NLRB No. 106, slip op. at 2 n. 5, and 13 (2022). This is partic- ularly so in the instant case because the Union has disclaimed any request for financial information, which is perhaps more likely to be confidential than PSP eligibility information. Lastly, the Respondent contends that, if the Union’s wage claim is submitted to arbitration, the information at issue can be sought via the arbitration process. However, the Board has long adhered to a policy of refusing to defer to arbitration disputes concerning information requests. See, e.g., General Dynamics Corp., 268 NLRB 1432 (1984). Based upon the foregoing, I find that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to pro- vide the Union with documents referring to or showing the Re- spondent’s eligibility for PSP funds. CONCLUSIONS OF LAW 1. The Respondent, Borenstein Caterers, Inc., 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 100, is a labor organiza- tion within the meaning of Section 2(5) of the Act. The Union represents an appropriate unit for the purposes of collective bargaining as described in Article 1 of the collective- bargaining agreement. 3. The Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to provide the Union with requested doc- uments referring to or showing the Respondent’s eligibility for PSP funds. 5. The unfair labor practice committed by the Respondent af- fects commerce within the meaning of Section 2(6) and (7) of the Act. 8 If no exceptions are filed as provided by Section 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Section 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 9 If the facilities involved in these proceedings are open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facilities involved in these proceedings are closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notices must be posted within 14 days after the facilities reo- pen and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees THE REMEDY Having found that the Respondent, Borenstein Caterers, Inc., engaged in an unfair labor practice, I shall order the Respondent to cease and desist therefrom and to take certain affirmative ac- tion designed to effectuate the policies of the Act. The Respondent will be ordered to post, in English and Span- ish, at its Jamaica, New York facility, the notice attached hereto as “Appendix.” The Respondent will be ordered to timely provide to the Un- ion, UNITE HERE Local 100, the information requested by the Union on May 25, June 8, and June 15, 2022. On these findings of fact and conclusions of law, and on the entire record, I issue the following recommended order8 ORDER The Respondent, Borenstein Caterers, Inc, Jamaica, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Provide to the Union in a timely manner the information requested by the Union on May 25, June 8, and June 15, 2022. (b) Refusing to bargain collectively with the Union, UNITE HERE Local 100, by failing and refusing to furnish the Union with requested information that is relevant and necessary to the Union’s performance of its function as the collective-bargaining representative of an appropriate unit of employees, as described in Article 1 of the collective-bargaining agreement. (c) In any like or related manner interfering, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectu- ate the policies of the Act. (a) Post in English and Spanish at its Jamaica, New York fa- cility, copies of the attached notice marked “Appendix.”9 Copies of the notice, on forms provided by the Regional Director for Region 29, 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, 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 ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these due to the pandemic, the Respondent is communicating with its employ- ees by electronic means, the notice must also be posted by such electronic 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 proceedings, 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, copies of the notice to all current employees and former employees employed by the Re- spondent at any time since May 25, 2022. (b) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C., April 26, 2023. 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 or refuse to provide your Union, UNITE HERE Local 100, with requested information that is relevant and necessary to the Union’s performance of its functions as the col- lective-bargaining representative of employees in the bargaining unit described in Article I of the collective-bargaining agree- ment. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights listed above. WE WILL provide to the Union in a timely manner the infor- mation requested by the Union on May 25, June 8, and June 15, 2022. BORENSTEIN CATERERS, INC The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29-CA-299367 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.