Fairmont Hotel

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 746 (N.L.R.B. 1991)

746
304 NLRB No. 95
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has requested oral argument. The request is denied as the
record, exceptions, and briefs adequately present the issues and the positions
of the parties.
2 We deny the General Counsel’s motion to strike the amicus curiae brief.
3 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
The Respondent filed a motion to reopen the record to include evidence re-
garding its pretrial settlement offer and additional evidence concerning the
complaining guest’s purported request for privacy. The General Counsel op-
poses the motion, We deny the motion for the following reasons: First, evi-
dence of the Respondent’s pretrial settlement offer, if adduced and credited,
would not require a different result. Second, the record shows that the issue
of guest confidentiality was litigated at the hearing, and we agree with the
judge’s finding that the record does not establish that the complaining guest,
in fact, had requested confidentiality. We also note that the Respondent does
not contend that the evidence it seeks to introduce of the guest’s request for
confidentiality was previously unavailable or newly discovered. Nor does the
Respondent contend that it was prevented from presenting this evidence at the
hearing.
In agreeing with the judge’s determination that the identity of the complain-
ing guest was not shown to be confidential as alleged by the Respondent, we
note that the Respondent failed to establish that it promised anonymity to the
complaining guest at any time or that she had any reasonable expectation of
privacy. In fact, the guest appeared as a witness at the arbitration proceeding
and her identity was revealed at that time. Moreover, we agree with the judge
that even had the Respondent established its claim of confidentiality so as to
trigger the balancing of such confidentiality concerns with the Union’s needs
as collective-bargaining representative, the Respondent failed to show that it
met its obligation to come forward with an offer to accommodate these two
competing interests. Member Oviatt finds it unnecessary here to reach the
issue of what the Respondent’s obligation would be had it established its claim
of confidentiality.
The Respondent contends that the Union was not entitled to the requested
information because the past practice was to the contrary and the Union had
waived its right to the information. We disagree. There is no evidence in the
record demonstrating the parties’ mutual understanding in the past that the Re-
spondent need not provide the requested information, and the Respondent has
not referred us to contractual language containing a waiver or any other per-
suasive evidence that the Union waived this statutory right.
1 The charge was filed on June 26, 1989. The complaint issued on August
10.
2 The covered classifications are set forth in Appendix A of the agreement.
I conclude that a unit so comprised is appropriate for purposes of the Act.
3 The General Counsel’s brief states that the guest complained of Taplin’s
failure to provide ‘‘turndown’’ service.
Fairmont Hotel Company d/b/a the Fairmont Hotel
and Hotel and Restaurant Employees Union,
Local 2, AFL–CIO. Case 20–CA–22700
August 27, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On June 20, 1990, Administrative Law Judge Rich-
ard J. Boyce issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.1 The
California Hotel & Motel Association filed an amicus
curiae brief.2
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 de-
cided to affirm the judge’s rulings, findings,3 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Fairmont Hotel Company
d/b/a the Fairmont Hotel, San Francisco, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
Karen Clopton, Esq., for the General Counsel.
Geoffrey M. Faust, Esq. (Titchell, Maltzman, Mark, Bass,
Ohleyer & Mishel), of San Francisco, California, for the
Respondent.
Elliot Beckelman, of San Francisco, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. This mat-
ter was tried before me in San Francisco, California, on Feb-
ruary 5, 1990. The complaint, based on a charge filed by
Hotel and Restaurant Employees Union, Local 2, AFL–CIO
(Union), alleges that Fairmont Hotel Company d/b/a the Fair-
mont Hotel (Respondent) has refused to supply the Union
with certain requested information since about June 20, 1989,
thereby violating Section 8(a)(5) and (1) of the National
Labor Relations Act (Act).1
I. JURISDICTION, LABOR ORGANIZATION
Respondent is a California corporation engaged in the op-
eration of a hotel in San Francisco. The parties agree, and
I find, that it is an employer engaged in and affecting com-
merce within Section 2(2), (6), and (7) of the Act.
The parties further agree, and I find, that the Union is a
labor organization within Section 2(5) of the Act.
II. THE ALLEGED MISCONDUCT
A. Facts
Respondent and the Union were party to a collective-bar-
gaining agreement effective from August 14, 1986, to August
14, 1989. Among the classifications covered by the agree-
ment were chefs, cooks, food servers, bus persons, cashiers,
checkers, bartenders, dishwashers, bell persons, and room
cleaners.2
On May 26, 1989, based on a guest’s complaint, Respond-
ent suspended one of its room cleaners, Jewel Taplin, for 5-
1/2 days. The record does not disclose the nature of the
guest’s complaint,3 or the manner in which it was lodged.
The Union shortly grieved Taplin’s suspension, and a
meeting comprising steps 1 and 2 of the contractually pre-
scribed grievance/arbitration procedure followed on May 30.
During the meeting, which resolved nothing, Bill Hester, a
business representative for the Union, asked Respondent’s di-
747FAIRMONT HOTEL
4 The record does not disclose the outcome of the arbitration proceeding.
5 Higgins testified that the Union previously had learned the guest’s identity.
He did not say if the St. Francis had provided the information.
rector of personnel, Noel Lopez, for the complaining guest’s
name. Hester explained that this was necessary to the
Union’s investigation of the matter. Lopez replied either that
the information would be provided, or that the guest would
be present, if necessary, at the next step—an adjustment
board hearing.
The Union formally requested an adjustment board hearing
on June 6, and it took place, likewise without resolution, on
June 20. The complaining guest was not there. Both Hester
and the Union’s assistant grievance officer, Bill Higgins,
asked why not. They also asked for the guest’s name, ad-
dress, and telephone number, so they could reach him after
the meeting. Respondent’s general manager, Herman Wiener,
replied that Respondent ‘‘would never’’ bring a guest to an
adjustment board hearing, and that it would ‘‘see’’ the Union
‘‘in arbitration.’’ Wiener added that he was especially con-
cerned that this particular guest, an official of the American
Automobile Association, not be ‘‘upset.’’ Douglas Cornford,
a labor relations consultant for Respondent, injected that it
would not reveal the guest’s identity ‘‘prior to the arbitra-
tion,’’ but would make the guest available at that proceeding.
Cornford or Wiener also stated that Respondent would rely
on three employee witnesses, in addition to the guest, in the
arbitration hearing. Higgins asked their identities, as well.
Cornford refused to comply. Higgins testified, ‘‘We had no
idea if they were bargaining-unit personnel or management
representatives.’’
An arbitration hearing was set for September 29. Antici-
pating it, Higgins sent Wiener a letter, dated July 17, in
which he requested ‘‘the name, telephone number and ad-
dress’’ of the complaining guest, and ‘‘the names, positions,
telephone numbers and addresses of all . . . employee wit-
nesses.’’ Respondent did not comply; and, by letter to Lopez
dated August 29, Higgins repeated the request. Respondent
again failed to comply. On September 6, at the Union’s be-
hest, Arbitrator Charles Askin issued a subpoena duces
tecum commanding Respondent to provide the Union with
that and other information by September 15. Respondent an-
swered by letter to Higgins dated September 18, identifying
two employee witnesses, but stating with regard to the guest:
‘‘Information is not being supplied; guest will testify at arbi-
tration hearing.’’ That was followed by a letter from
Cornford to the arbitrator, dated September 19, ‘‘requesting
the deletion from the subpoena’’ of items going to the
guest’s identity. The letter stated, in support of the request,
that Respondent deemed that information ‘‘confidential in
nature’’ and feared that disclosure ‘‘may have certain ad-
verse legal consequences . . . pursuant to a hotel guest’s
right to privacy.’’ The letter added that Respondent intended
to make the guest ‘‘available for testimony at the September
29th hearing.’’
Also on the 19th, Higgins wrote the arbitrator that Re-
spondent had not complied with several items in the sub-
poena, including those bearing on the guest’s identity; and
asked that he compel compliance.
Respondent persisted in its noncompliance regarding the
guest. The guest appeared and testified at the arbitration
hearing as promised.4
Neither Respondent nor the Union proposed an alternative
arrangement, prior to arbitration, that would protect the
guest’s anonymity.
Higgins testified that, in grievance matters involving guest
complaints at other major San Francisco hotels, he has never
participated in an adjustment board hearing where the hotel
has not provided ‘‘information concerning the complaining
guest.’’ He recounted a 1988 adjustment board hearing con-
cerning the St. Francis Hotel in which the guest, in Phoenix,
was questioned by means of a conference-call telephone ar-
rangement. The guest, however, was not identified during the
call, according to Higgins.5
Wiener testified that Respondent does ‘‘everything pos-
sible to ensure the privacy and the confidentiality . . . of the
guests’’; that it does not ‘‘give out any information to any
persons about the guests’’ absent ‘‘a subpoena by [a] court.’’
He continued, ‘‘This is a legal obligation to us.’’ Asked the
basis of that obligation, he testified: ‘‘Well, it’s mostly be-
tween the—I—with the state law and all—that we understand
that the guest comes into the hotel, expects privacy 100 per-
cent.’’
Wiener further testified that Respondent ‘‘common[ly]’’
imposes discipline based on customer complaints; and that,
in some such instances, when the employee learned the
guest’s identity, the guest ‘‘was harassed . . . and then we
had big problems with the guest.’’ Wiener went on, ‘‘I can’t
come up with the individual, but there’s been quite a few
complaints from guests’’ about this.
Wiener ventured that, were Respondent to reveal a com-
plaining guest’s identity before arbitration, and then the guest
were to be ‘‘called at home and harassed,’’ the guest ‘‘would
never show up . . . for us, to be as a witness, on a com-
plaint.’’ Wiener then averred that he ‘‘know[s] for a fact’’
that complaining guests have been ‘‘harassed’’ by union offi-
cials, as well as employees, only to concede: ‘‘Official of the
Union? To my knowledge, no.’’
Respondent placed in evidence a questionnaire on which
it invites guests to rate their stay in sundry respects—the
courtesy and efficiency of various personnel, the condition of
the guest room on arrival, the quality of housekeeping during
the stay, etc. The questionnaire notes that Respondent
‘‘strive[s] to uphold the quality of services and personnel
upon which [its] reputation has been built,’’ and that ‘‘the
information obtained . . . will be used to continue to provide
. . . the standards that have become synonymous with the
Fairmont name.’’ Wiener testified that this affords ‘‘one way
to evaluate the performance of’’ Respondent’s 800 to 850
employees, and that this use would be compromised were the
identities of complaining guests not protected. The question-
naire includes a space for the guest’s name, address, and
telephone number, and nowhere indicates that that informa-
tion will be held in confidence.
Although Respondent asserts in its brief that ‘‘the guest
involved here had requested confidentiality,’’ the record con-
tains no evidence that this is so.
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 290 NLRB 1006 at 1007 (1988).
7 Id. at 1007.
8 233 NLRB 694 (1977).
9 237 NLRB 982 (1978).
10 Id. at 984 fn. 5. Anheuser-Busch, Inc. involved an employer’s refusal to
provide witness statements to the union before arbitration. The Board held that
to be lawful.
11 Belated compliance does not exonerate. Interstate Food Processing, 283
NLRB 303, 306 (1987).
12 Respondent does not argue the point as concerns the employee-witnesses.
13 Respondent in its brief cites a provision in the California constitution
which states: ‘‘All people are by nature free and independent and have inalien-
able rights. Among them are . . . pursuing and obtaining safety, happiness,
and privacy.’’
14 See Howard University, supra.
15 Even if Respondent’s concern for guest privacy were sincere and valid,
it was obliged to ‘‘come forward with some offer to accommodate both its
concerns and its bargaining obligation.’’ Tritac Corp., 286 NLRB 522 (1987).
This, so far as the record shows, it did not do.
16 Supra at 233 NLRB 695.
17 All outstanding motions inconsistent with this recommended Order are de-
nied. If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Order
shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and
all objections to them shall be deemed waived for all purposes.
B. Conclusions
The applicable legal principles were recently summarized
by the Board in Howard University:6
[A]n employer has an obligation to provide a union
with information relevant to its duty as a representative
of the employees. Washington Gas Light Co., 273
NLRB 116 (1967). This obligation extends to informa-
tion required by the union to process a grievance.
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967);
Designcraft Jewel Industries, 254 NLRB 791 (1981).
The standard for the relevancy of the information
sought by the Union is set forth in W-L Moulding Co.,
272 NLRB 1239 (1984), in which the Board, citing
NLRB v. Rockwell-Standard Corp., 410 F.2d 953, 957
(6th Cir. 1969), stated, ‘‘The Board’s only function in
such situation is in ‘acting upon the probability that the
desired information was relevant, and that it would be
of use to the union in carrying out its statutory duties
and responsibilities.’’’
The Board then qualified:7
Relevancy, however, is not the sole factor in deciding
whether the information must be produced by the [em-
ployer]. Although the requested information may be rel-
evant, an employer may not be required to produce it
if such production violates confidentiality and privilege.
The [employer’s] claim of confidentiality must be bal-
anced against the union’s need for relevant information
in pursuit of its role as a representative of the employ-
ees. Detroit Edison v. NLRB, 440 U.S. 301
(1979). . . . The party asserting confidentiality has the
burden of proof. McDonnell Douglas Corp., 224 NLRB
881 (1976).
More to the present point, the Board held in Transport of
New Jersey,8 that an employer’s refusal to comply with a
union’s request for the names and addresses of passenger-
witnesses to a bus accident, in the context of the employer’s
determination that the driver was at fault, violated Section
8(a)(5) and (1). And, in Anheuser-Busch, Inc.,9 citing Trans-
port of New Jersey, the Board offered this dictum:10
An employer does have a duty to furnish a union, upon
request, the names of witnesses to an incident for which
an employee was disciplined.
I conclude, based on the above, that Respondent violated
Section 8(a)(5) and (1) as alleged by withholding the identity
of the complaining guest until the arbitration hearing and by
failing to disclose the identities of the employee-witnesses
for some 3 months after the Union first requested them.11
This information plainly ‘‘would be of use to’’ the Union
in investigating Taplin’s alleged misconduct, and thus in de-
ciding whether and to what extent to grieve her suspension;
and Respondent has failed to persuade me that its avowed
reasons for withholding the guest’s identity warrant exemp-
tion from the general rule.12 Wiener was unable to cite the
law Respondent would violate by disclosing the guest’s iden-
tity,13 and I doubt in any event that such a law would pre-
empt an obligation arising under the Act.14 The record con-
tains no evidence, moreover, that the guest requested or was
promised anonymity; and one might surmise from the guest’s
having complained without such a request or assurance, and
from Respondent’s stated intent all along to call the guest as
a witness in the arbitration proceeding, that tactics rather
than privacy was the primary consideration.15
Further, Wiener’s professed concerns about harassment,
should the guest’s identity be revealed before arbitration,
were strained, nebulous, and generally unconvincing. As the
Board stated in Transport of New Jersey,16 faced with a
similar contention:
[T]he dangers suggested by Respondent are at most
speculative and the likelihood of their occurrence is
substantially outweighed by the Union’s need to obtain
information relevant and necessary to the proper per-
formance of its statutory function of processing griev-
ances.
Wiener’s other attempted justifications for withholding the
identification of complaining guests—that they would be dis-
couraged from serving as witnesses for Respondent if they
were ‘‘called at home and harassed’’ beforehand, and that
Respondent’s use of guest complaints as a tool for evaluating
employees would be compromised—likewise turn on specu-
lative possibilities readily eclipsed by the Union’s need for
the information.
CONCLUSION OF LAW
By failing and refusing to furnish to the Union, promptly
on its request, the names, addresses, and telephone numbers
of the complaining guest and employee-witnesses in connec-
tion with the grievance arising from the suspension of Jewel
Taplin in May 1989, Respondent violated Section 8(a)(5) and
(1) of the Act.
On these findings of fact and conclusion of law and on the
entire record, I issue the following recommended17
749FAIRMONT HOTEL
18 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
ORDER
The Respondent, Fairmont Hotel Company d/b/a the Fair-
mont Hotel, San Francisco, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing or failing to bargain in good faith with the
Union by withholding from it requested information relevant
to the processing of grievances or the administration of their
collective-bargaining agreement.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, furnish the Union with the names, address-
es, and telephone numbers of the complaining guest and em-
ployee-witnesses in connection with the May 1989 suspen-
sion of Jewel Taplin, which information is needed to enable
the Union to process a grievance on her behalf.
(b) Post at its hotel in San Francisco, California, copies of
the attached notice marked ‘‘Appendix.’’18 Copies of the no-
tice, on forms provided by the Regional Director for Region
20, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and shall be maintained for 60 consecutive days
in conspicuous places, including all places where notices to
employees customarily are posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse or fail to bargain in good faith with
the Hotel and Restaurant Employees Union, Local 2, AFL–
CIO by withholding from it requested information relevant to
the processing of grievances or the administration of our col-
lective-bargaining agreement.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 the Act.
WE WILL, on request, furnish the Union with the names,
addresses, and telephone numbers of the complaining guest
and employee-witnesses in connection with the May 1989
suspension of a bargaining unit employee, which information
is needed to enable the Union to process a grievance on that
employee’s behalf.
FAIRMONT HOTEL COMPANY D/B/A THE FAIR-
MONT HOTEL