UNITE HERE Local 26 (Battery Wharf) (01-CB-219943)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

DATE:

December 7, 2018

TO:

Paul J. Murphy, Acting Regional Director

Region 1

FROM:

Jayme L. Sophir, Associate General Counsel

Division of Advice

SUBJECT: UNITE HERE Local 26 (Boston Management

LLC d/b/a Battery Wharf Hotel),

Case 01-CB-219943

530-6033-0150

530-6033-1400

530-6033-1450

530-6033-1467

530-6033-4280

530-6050-0120

530-6067-2030-8100

530-6067-2070

530-6067-2070-3300

554-1433-1700

554-1467-2400

554-1467-3500

This case was submitted for advice as to whether the Union violated Section

8(b)(3) by including a large number of unit employees on its bargaining committee

and/or failing to meet at reasonable times where the Union insists that contract

negotiations be held during evenings and weekends to accommodate its committee.

We conclude that, on the current record, there is insufficient evidence to conclude that

the Union’s conduct was unlawful.

FACTS

Background

UNITE HERE Local 26 (the Union) represents a unit of approximately 80

housekeepers, kitchen and banquet workers, bartenders, and others employed by

Boston Management LLC d/b/a Battery Wharf Hotel (the Employer). For some time,

the Union has negotiated a master agreement with a large hotel chain in the Boston

area, and other Boston-area hotels, including Battery Wharf Hotel, sign a “me-too”

agreement to adopt the terms of the master agreement. In 2016, the Employer

keepers, kitchen and banquet workers, bartenders, and others employed by

Boston Management LLC d/b/a Battery Wharf Hotel (the Employer). For some time,

the Union has negotiated a master agreement with a large hotel chain in the Boston

area, and other Boston-area hotels, including Battery Wharf Hotel, sign a “me-too”

agreement to adopt the terms of the master agreement. In 2016, the Employer

Case 01-CB-219943

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purchased the Battery Wharf Hotel and adopted the existing “me-too” agreement,

which was scheduled to expire on February 28, 2018.1

The Parties Commence Bargaining for a Successor Agreement

On January 22, the Union’s

and its Hotel Division

met with

the Employer’s representatives and presented a proposal that the Employer agree to

be bound, as a me-too signatory, by the eventual collective-bargaining agreement

resulting from ongoing negotiations between the Union and other Boston-area hotels.

The Employer expressed that the hotel was amenable to this “me-too” agreement.

Following this initial meeting, the parties agreed to extend the current agreement

until March 31.

On March 16, the parties held a second negotiation session. The Employer,

represented by a new attorney, proposed that the parties directly negotiate a stand-

alone agreement for Battery Wharf employees and presented an outline of terms and

conditions that differed sharply from the current agreement. The Employer proposed,

inter alia, to freeze wages for three years, substitute an Employer-provided benefit

plan for the Union’s health and welfare plan, eliminate various types of premium pay,

and permit supervisors to perform unit work. Upon reviewing the outline, the Union

stated that the Employer’s proposal would “gut the contract,” characterized it as a

“fairy tale list,” and added that it would be sending the Employer an information

request

hree years, substitute an Employer-provided benefit

plan for the Union’s health and welfare plan, eliminate various types of premium pay,

and permit supervisors to perform unit work. Upon reviewing the outline, the Union

stated that the Employer’s proposal would “gut the contract,” characterized it as a

“fairy tale list,” and added that it would be sending the Employer an information

request. At the close of the meeting, the Employer asked to schedule another meeting

and the Union stated that it would get back to the Employer concerning meeting

dates after the Union received a response to its information request. Neither party

wished to extend the current agreement beyond March 31.

On March 20, the Union sent the Employer an information request and the

Employer provided the requested information shortly thereafter. On April 10, the

Employer emailed the Union

requesting that

propose dates and times for

the next meeting. On April 17, the Union proposed that the parties meet on May 8 at

3:00 p.m. The Employer agreed to meet on May 8, but stated that the parties “cannot

be meeting [only] once every two months,” and asked the Union to propose additional

dates before and after May 8. On April 23, the Union

wrote that

would

get back to the Employer with more dates and noted that the Union was scheduling

negotiations with over 30 hotels with expiring agreements. The Union also stated

that it would have a “sizable worker committee” at the next meeting. Based on this

email and a flyer circulated in the hotel picturing members of the Union’s “organizing

committee,” the Employer expected a committee of 12 employees.

1 All dates infra are 2018.

(b) (6), (b)

(b) (6), (b)

(b) (6), (b) (7)(C)

(b) (6), (

(b) (6), (b) (7)(C)

ld have a “sizable worker committee” at the next meeting. Based on this

email and a flyer circulated in the hotel picturing members of the Union’s “organizing

committee,” the Employer expected a committee of 12 employees.

1 All dates infra are 2018.

(b) (6), (b)

(b) (6), (b)

(b) (6), (b) (7)(C)

(b) (6), (

(b) (6), (b) (7)(C)

(b)

Case 01-CB-219943

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The Parties Meet on May 8 and Correspond Regarding Future Bargaining Sessions

On May 8, the parties were scheduled to meet in a conference room at the hotel.

The Union’s

and its Hotel Division

were accompanied by 40 to 50

unit employees. Only a few chairs were available at the table. The Union

representatives and employees stood around the table and spilled out into the

hallway, and the Union stated that they needed to find a larger room. The Employer

stated that, “we are asking for a professional meeting with a proper negotiating

team,” and asked if the Union had any proposals. The Union responded that its

“proposal was the ‘me-too’ agreement,” to which the Employer responded that the

hotel had already rejected that proposal. The parties argued over who was on the

Union’s bargaining committee and whether the meeting could continue in another

room; at one point, a unit employee offered to move chairs to set up a larger room.

According to the Employer, the Union

stated, “we need a larger room as

every member of the bargaining unit is on the negotiating team.” After several

minutes of arguing, with no agreement on relocating the meeting, the Union

stated, “we are done with this meeting,” and led the employees out,

chanting and clapping, with one employee using a bullhorn. The meeting lasted

approximately 10 minutes.

On May 9, the Employer filed a charge alleging that the Union had failed to

bargain in good faith in violation of Section 8(b)(3)

fter several

minutes of arguing, with no agreement on relocating the meeting, the Union

stated, “we are done with this meeting,” and led the employees out,

chanting and clapping, with one employee using a bullhorn. The meeting lasted

approximately 10 minutes.

On May 9, the Employer filed a charge alleging that the Union had failed to

bargain in good faith in violation of Section 8(b)(3).

On May 10, the Employer emailed the Union stating that the parties needed to

begin to meet regularly and engage in serious discussions and requested that the

Union propose dates and times for the coming weeks. On May 25, the Union proposed

meeting on June 14, stating that it would need “a room large enough to accommodate

all of our committee members who attend, which we expect to number 35 people.”

The Employer responded that its representatives were unavailable to meet on June

14, asked the Union to propose other dates, and stated that the next meeting could be

held at the Union hall, which would “allow you to decide if we have a serious business

meeting or mere theater.” The Union offered to meet on June 19 or 21, either at 4:00

p.m. if the parties met at the hotel, or at 5:00 p.m. if they met at the Union hall. The

Employer agreed to meet on June 19 at 5:00 p.m. at the Union hall and also stated

that, “we do not consider starting a meeting at 5pm (or 4pm) a reasonable time.

Nonetheless, because it has been so difficult to get any dates from you, we are

accepting what has been offered to us.”

On June 19, several hours before the parties were scheduled to meet, the

Employer sent the Union an email stating that the Union’s “scheduling tactics have

precluded any serious bargaining,” but nonetheless offered a list of dates for further

meetings. The Employer proposed scheduling a minimum of two meetings a week,

during regular business hours, and continuing those meetings after regular business

hours “where we are engaged in serious and productive dialogue.” The Employer

he Union an email stating that the Union’s “scheduling tactics have

precluded any serious bargaining,” but nonetheless offered a list of dates for further

meetings. The Employer proposed scheduling a minimum of two meetings a week,

during regular business hours, and continuing those meetings after regular business

hours “where we are engaged in serious and productive dialogue.” The Employer

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

Case 01-CB-219943

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requested that the Union provide any final agreements executed with Boston hotels in

2018 and any proposals in ongoing negotiations with those hotels. The Employer also

asked the Union to state “whether the [U]nion has any flexibility in its proposed me-

too agreement” when the parties met later that day, and attached an annotated

version of its March 22 outline, which included proposed language to edit articles of

the parties’ expired agreement.

The Parties Meet on June 19 But Thereafter Do Not Agree on Dates or Arrangements

for Further Bargaining Sessions

The June 19 meeting began at around 5:30 p.m. and the Union had

approximately 30 unit employees in attendance. After initial remarks, the parties

began to review the Employer’s annotated outline. The Employer asked why the

Union did not have responses to the Employer’s proposals. The Union responded that

it had only received the Employer’s actual proposals (as opposed to a general wish

list) that day shortly before the meeting. As the Union

read the proposals

and posed questions or expressed disagreement, the Employer’s attorney urged, “you

don’t have to read…you have seen this before,” and accused the Union

of

“posturing” and “grandstanding.” At 7:15 p.m., the Union requested a caucus and the

Employer asked how long it needed. The Union

suggested that they

conclude the meeting and stated that

would send dates for more bargaining

sessions by the end of the week

r expressed disagreement, the Employer’s attorney urged, “you

don’t have to read…you have seen this before,” and accused the Union

of

“posturing” and “grandstanding.” At 7:15 p.m., the Union requested a caucus and the

Employer asked how long it needed. The Union

suggested that they

conclude the meeting and stated that

would send dates for more bargaining

sessions by the end of the week.

On June 22, the Union sent an email stating that it could meet on July 11 and 18

at 5:00 p.m. The Employer responded that “starting at 5 p.m. is unreasonable and

indicative of the [U]nion’s continued bad faith. The hotel reiterates its expectation

that we meet during business hours.” On July 9, the Union emailed asking if the

parties were going to meet on July 11 and 18, and stated that the Union could either

meet at 5:00 p.m. at the Union hall or slightly earlier if they met at the hotel. The

Employer responded that “the Union’s excuse for offering only those times (that its

‘committee’ is unavailable at other times) [is not] reasonable because…it is not an

actual committee in any real sense of the term.”

On July 11, the Union proposed that the parties alternate bargaining sessions

between regular business hours and evenings, and that the Employer pay up to eight

Union committee members’ lost wages for sessions that occurred during regular

business hours. The Employer rejected this proposal. On July 13, the Union wrote

that the unit employees do not attend bargaining “simply for show” but rather “give

[the Union] essential information by which to judge employer proposals, help mold the

Union’s proposals, give spokespeople guidance on the positions to take, and…make

the decision whether to accept or reject proposals.” The Union concluded that, since

the Employer had rejected its proposal, “we will meet when [unit employees] can

participate without loss: evenings and weekends… This is the Union’s bottom line.”

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

e

Union’s proposals, give spokespeople guidance on the positions to take, and…make

the decision whether to accept or reject proposals.” The Union concluded that, since

the Employer had rejected its proposal, “we will meet when [unit employees] can

participate without loss: evenings and weekends… This is the Union’s bottom line.”

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b

Case 01-CB-219943

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On July 18, the Employer proposed that employees swap shifts so that “actual

committee members who wish to attend meetings during their regularly scheduled

hours can switch days or times off with non-committee members. The hotel is willing

to help facilitate such swaps if the [U]nion is interested.” The Union rejected the

Employer’s proposal, stating that it was “overly burdensome” to unit employees.

Over the next few weeks, the parties exchanged further correspondence but could

not agree on meeting arrangements. The Employer’s attorney requested that the

Union email any proposals and the Union declined, stating that it would not bargain

over email but planned to present counterproposals at the parties’ next meeting. The

Union also wrote that “the fact that anyone in the bargaining unit is eligible to be a

member of the bargaining committee does not mean that everyone is a member of the

bargaining committee. The Union has never insisted on meeting at times when the

entire bargaining unit may be present.”

The parties also argued about the relevance of the Employer’s outstanding

information request. The Union claimed that information regarding the Union’s

negotiations with other hotels was irrelevant since the Employer had rejected a “me-

too” agreement. The Employer responded that the information was relevant because

the Union had not made any further proposals

aining unit may be present.”

The parties also argued about the relevance of the Employer’s outstanding

information request. The Union claimed that information regarding the Union’s

negotiations with other hotels was irrelevant since the Employer had rejected a “me-

too” agreement. The Employer responded that the information was relevant because

the Union had not made any further proposals. On August 30, the Union wrote to the

Employer that the Union has “already made it clear to you that it is withdrawing the

March 21 me-too proposal…But so that you don’t continue your charade, the Union

withdraws its March 21 me-too proposal.”2 The Union did not thereafter offer a

concrete proposal nor did the Employer request one.

Since August 30, the parties have not exchanged any further correspondence or

scheduled any additional negotiation sessions.

ACTION

We conclude that the Union has not violated its duty to bargain in good faith

through the composition of its bargaining committee, nor has the Union violated its

duty to meet at reasonable times by insisting that contract negotiations be held

during evenings and weekends to accommodate its committee. The Region should

dismiss the charge, absent withdrawal.

2 The Region dismissed the charge regarding the Employer’s information request; the

Employer has filed an appeal.

nion violated its

duty to meet at reasonable times by insisting that contract negotiations be held

during evenings and weekends to accommodate its committee. The Region should

dismiss the charge, absent withdrawal.

2 The Region dismissed the charge regarding the Employer’s information request; the

Employer has filed an appeal.

Case 01-CB-219943

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I.

The Union’s Inclusion of a Large Number of Unit Employees on its

Bargaining Committee Has Not Violated Section 8(b)(3)

Under Section 7 of the Act, employees have a fundamental right to “bargain

collectively through representatives of their own choosing.”3 Thus, unions, acting on

behalf of employees, have the right to designate individuals to serve on a bargaining

committee and employers have a correlative duty to negotiate with the union’s

appointed agents.4 The Board has found exceptions to this right only in extraordinary

circumstances: 1) where a union’s choice of representatives demonstrates bad faith or

ulterior motive;5 or 2) where an employer has shown that the union’s representatives

would present a “clear and present danger” to the collective-bargaining process or

create such ill will that bargaining would be impossible or futile.6

Absent evidence of bad faith or interference with the collective-bargaining

process, one party may not insist that the other party limit the size of its bargaining

committee. For example, in Caribe Staple Co., the employer insisted that the union

reduce its bargaining committee from ten to four persons, claiming that “side

comments” from employees who were not actively involved in negotiations disrupted

the meetings.7 The union refused to limit its committee, claiming that the employees

3 29 U.S.C. § 157.

4 See General Electric Co. v. NLRB, 412 F.2d 512, 516 (2d Cir

the union

reduce its bargaining committee from ten to four persons, claiming that “side

comments” from employees who were not actively involved in negotiations disrupted

the meetings.7 The union refused to limit its committee, claiming that the employees

3 29 U.S.C. § 157.

4 See General Electric Co. v. NLRB, 412 F.2d 512, 516 (2d Cir. 1969); see also United

Parcel Service, 330 NLRB 1020, 1020 n.1 (2000) (“It is well-settled that the Act

bestows on employees, unions, and employers alike the right to select representatives

of their own choice for collective bargaining and grievance adjustment and imposes a

concomitant obligation to deal with each other’s chosen representatives absent

extraordinary circumstances.”)

5 See Caribe Staple Co., 313 NLRB 877, 889 (1994), citing Standard Oil Co. v. NLRB,

322 F.2d 40, 44 (6th Cir. 1963).

6 See, e.g., Dilene Answering Service, 257 NLRB 284, 291 (1981) (despite objections

that unit employees “were only observers” rather than representatives and their

presence might be embarrassing to company president, employer did not meet its

burden to show that the employees should be barred from negotiations); King Soopers,

Inc., 338 NLRB 269, 269-70 (2002) (where grocery employee was terminated by

employer for violent and threatening behavior, employer was justified in refusing to

later deal with individual as union business agent).

7 313 NLRB at 889 (concluding that the employer violated Section 8(a)(5) by refusing

to schedule bargaining sessions unless the union reduced the size of its committee).

g Soopers,

Inc., 338 NLRB 269, 269-70 (2002) (where grocery employee was terminated by

employer for violent and threatening behavior, employer was justified in refusing to

later deal with individual as union business agent).

7 313 NLRB at 889 (concluding that the employer violated Section 8(a)(5) by refusing

to schedule bargaining sessions unless the union reduced the size of its committee).

Case 01-CB-219943

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represented various shifts and distinct classifications.8 The administrative law judge

found, with Board approval, that the employer had failed to show how the size of the

union’s negotiating committee interfered with bargaining, and that the employer’s

“generalized testimony” about employees’ side comments was “undetailed, and lacked

[a] basis for evaluating how any such remarks proved disruptive.”9

Similarly, here, we cannot conclude that the size of the Union’s bargaining

committee has interfered with bargaining so far as to violate Section 8(b)(3). The

Union states that it requires the presence of unit employees during negotiations in

order to evaluate Employer proposals, help mold Union proposals, and give Union

spokespeople guidance on the positions to take.10 Although the Union

allegedly remarked at the May 8th meeting that the “entire unit” was on the

committee, at most 40 to 50 employees from the 80-person unit attended that meeting

and approximately 30 employees attended the June 19th meeting. There is no

evidence that the presence of a large number of unit employees at either session

interfered with the parties’ negotiations. The May 8 meeting ended, after a short

discussion, only because the Union’s committee could not fit in the hotel conference

room and the parties could not agree on moving to another room. Although the Union

contingent left the meeting chanting, clapping, and with one employee using a

bullhorn, this demonstration occurred after the meeting was adjourned and did not

interfere with the negotiations

May 8 meeting ended, after a short

discussion, only because the Union’s committee could not fit in the hotel conference

room and the parties could not agree on moving to another room. Although the Union

contingent left the meeting chanting, clapping, and with one employee using a

bullhorn, this demonstration occurred after the meeting was adjourned and did not

interfere with the negotiations. At the June 19th session, the parties’ spokespersons

discussed the Employer’s proposals at length without interruption. And despite the

Employer’s claims that the Union

was “posturing” and “grandstanding,”

there is no evidence that the Union’s conduct that day, including reviewing the

Employer’s written proposals, asking questions, and offering opinions while the

parties met face-to-face, evidenced bad faith or interfered with bargaining. In these

circumstances, where the Union’s committee has not disrupted bargaining, and there

is no showing to date that the Union has insisted on including a large number of unit

members in order to avoid bargaining in good faith, the Union’s committee size is not

a violation of Section 8(b)(3).

8 Id.

9 Id.; see also People Care, Inc., 327 NLRB 814, 824-25 (1999) (employer violated

Section 8(a)(5) by refusing to meet with union attorney following a negotiation session

where several of the 35 employees present physically confronted employer’s

representatives and blocked them from leaving the meeting; employer did not

establish that the union’s attorney caused disruption or that his continued presence

would make future bargaining impossible or futile).

10 Cf. Dilene Answering Service, 257 NLRB at 291 (employer could not exclude unit

employees whom the union claimed were present to observe and assist union

spokesperson).

(b) (6), (b) (7)(C)

atives and blocked them from leaving the meeting; employer did not

establish that the union’s attorney caused disruption or that his continued presence

would make future bargaining impossible or futile).

10 Cf. Dilene Answering Service, 257 NLRB at 291 (employer could not exclude unit

employees whom the union claimed were present to observe and assist union

spokesperson).

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

Case 01-CB-219943

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II.

The Union Did Not Violate its Duty to Meet at Reasonable Times by

Insisting on Scheduling Negotiation Sessions on Evenings and

Weekends

Under Section 8(d), both unions and employers have an explicit duty to “meet

at reasonable times and confer in good faith.”11 It is well established that the

statutory duty to bargain “surely encompasses the affirmative duty to make

expeditious and prompt arrangements, within reason, for meeting and conferring.”12

Neither the Act nor the Board have defined the frequency with which parties must

meet in order to satisfy their bargaining obligations.13 The Board will look to the

“entire context” to determine whether there has been a breach of either party’s

obligation to meet and confer.14 In particular, the Board will consider whether a

party has frequently canceled scheduled bargaining sessions; refused to meet more

than once or twice a month; refused to respond to a party’s repeated requests for more

frequent bargaining; and/or refused to schedule more than one bargaining session at a

time.15 The Board will not tolerate a “busy negotiator” defense if a party is dilatory in

scheduling meetings; a party is not relieved of its statutory obligation to furnish a

negotiator who can devote adequate time to attend reasonably prompt and continuous

11 See Food & Commercial Workers Local 1439 (Layman’s Market), 268 NLRB 780,

784 (1984) (“As noted by the Supreme Court, it was the intent of Congress when

enacting Section 8(b)(3) to condemn in union agents those

f its statutory obligation to furnish a

negotiator who can devote adequate time to attend reasonably prompt and continuous

11 See Food & Commercial Workers Local 1439 (Layman’s Market), 268 NLRB 780,

784 (1984) (“As noted by the Supreme Court, it was the intent of Congress when

enacting Section 8(b)(3) to condemn in union agents those bargaining attitudes ‘that

had been condemned in management’ by the previously enacted Section 8(a)(5)”),

quoting NLRB v. Insurance Agents, 361 U.S. 477, 487 (1960).

12 Storer Communications, 294 NLRB 1056, 1095 (1989) (quoting Rutter-Rex Mfg. Co.,

86 NLRB 470, 506 (1949)) (finding employer violated Section 8(a)(5) by refusing to

meet at reasonable times because it could offer no explanation for being able to meet

only three days in more than five months).

13 See Exchange Parts Co., 139 NLRB 710, 711-12 (1962), enforced, 339 F.2d 829 (5th

Cir. 1965).

14 See id.; see also Garden Ridge Management, 347 NLRB 131, 132 (2006) (Board

considers the totality of the circumstances, not simply the number of bargaining

sessions held).

15 See, e.g., Calex Corp., 322 NLRB 977, 977 (1997) (employer violated Section 8(a)(5)

because it arbitrarily limited the frequency of bargaining sessions to once per month,

canceled sessions, and refused repeated requests to bargain more frequently),

enforced, 144 F.3d 904 (6th Cir. 1998).

ard

considers the totality of the circumstances, not simply the number of bargaining

sessions held).

15 See, e.g., Calex Corp., 322 NLRB 977, 977 (1997) (employer violated Section 8(a)(5)

because it arbitrarily limited the frequency of bargaining sessions to once per month,

canceled sessions, and refused repeated requests to bargain more frequently),

enforced, 144 F.3d 904 (6th Cir. 1998).

Case 01-CB-219943

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negotiation sessions, regardless of his other time commitments.16 On the other hand,

a union’s attempt to schedule meetings when its selected representatives can

participate, even if that results in limiting meetings to evenings and weekends, does

not evidence bad faith. In Lancaster Nissan,17 for example, the Board held that the

employer failed to meet at reasonable times even though the union had insisted on

including two members of the eight-person unit, thus requiring that bargaining occur

only on evenings and weekends.

Here, both parties bear some responsibility for the fact that they have only met

four times over the course of nine months. Although the Employer urged the Union to

meet more frequently, it insisted on several occasions that the Union propose dates

rather than offer any itself. And, while the Union has not responded to the Employer

with the same level of urgency and, on one occasion, effectively offered the “busy

negotiator” defense, it has also proposed meeting dates on multiple occasions,

accepted one of several dates offered by the Employer, and has never canceled any

scheduled meetings.18 The primary reason for the paucity of meetings has been the

Union’s insistence on meeting after hours, so that employee members of the

bargaining committee can attend without sacrificing wages. The Union has a right to

attempt to schedule meetings when its selected representatives can participate

d one of several dates offered by the Employer, and has never canceled any

scheduled meetings.18 The primary reason for the paucity of meetings has been the

Union’s insistence on meeting after hours, so that employee members of the

bargaining committee can attend without sacrificing wages. The Union has a right to

attempt to schedule meetings when its selected representatives can participate.

Moreover, the Union has shown some willingness to accommodate the Employer’s

desire to meet during regular business hours by proposing that the Employer pay the

lost wages of up to eight committee members. Although this proposal was rejected by

the Employer, the Union remains willing to meet on evenings and weekends and the

Employer has not offered a reason why it cannot meet at those times, beyond its

16 See, e.g., People Care, Inc., 327 NLRB at 825 (rejecting employer’s defense that its

negotiator was too busy to bargain at times other than those time to which it agreed).

17 344 NLRB 225, 225 n.1 (2005) (Member Schaumber noting agreement that the

employer violated Section 8(a)(5)), enforced, 233 Fed. App’x. 100 (3d Cir. 2007).

18 Cf. Garden Ridge, 347 NLRB at 131-32 (finding employer violated duty to meet at

reasonable times where union requested at least eight times that the parties meet

more frequently and the employer refused and gave no explanation other than

wanting a break to “contemplate what had happened during negotiations”).