Resorts International Hotel

National Labor Relations Board - Board Decisions

Jul 21, 1992

307 N.L.R.B. 1437 (N.L.R.B. 1992)

1437
307 NLRB No. 203
RESORTS INTERNATIONAL HOTEL
1 In view of our agreement with the judge that the Respondent has
not established a need for confidentiality, we find it unnecessary to
reach the issue of what the Respondent’s obligation would have been
had it established the confidentiality claim.
1 The 12 Atlantic City casinos bargain together with the Union, but
they each have separate collective-bargaining agreements.
2 All dates are in 1991 unless otherwise indicated.
Resorts International Hotel Casino and Hotel Em-
ployees and Restaurant Employees Inter-
national Union Local 54, AFL–CIO. Case 4–
CA–19690
July 21, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On February 24, 1992, Administrative Law Judge
James L. Rose issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
Charging Party filed limited cross-exceptions and a
supporting brief, and the General Counsel and Charg-
ing Party filed answering briefs.
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,1 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, Resorts International Hotel
Casino, Atlantic City, New Jersey, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Monica L. McGhie-Lee, Esq., for the General Counsel.
Howard R. Flaxman, Esq. (Blank, Rome, Comisky &
McCauler), of Philadelphia, Pennsylvania, for the Re-
spondent.
James Katz and Robert F. O’Brien, Esqs. (Tomar, Simonoff,
Adourian & O’Brien), of Haddonfield, New Jersey, for the
Union.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me at Philadelphia, Pennsylvania, on No-
vember 18, 1991, on the General Counsel’s complaint which
alleged that Resorts International Hotel Casino (the Respond-
ent) failed to furnish certain information requested by the
Hotel Employees and Restaurant Employees International
Union, Local Union No. 54, AFL–CIO (the Union or Charg-
ing Party) in violation of Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act, 29 U.S.C. § 151 et seq.
All parties were represented by counsel and given the op-
portunity to call, examine and cross-examine witnesses, and
following the hearing, to submit briefs. On the record as a
whole, including my observation of the witnesses, briefs, and
arguments of counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
It is alleged, admitted, and I find that the Respondent’s
business meets the Board’s jurisdictional standards and it is
an employer engaged in interstate commerce within the
meaning Section 2(2), (6), and (7) of the Act.
It is further alleged, admitted, and I find that the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
II. FACTS
The Respondent operates a gambling casino and hotel in
Atlantic City, some of whose employees, including cocktail
servers, are represented by the Union. The Respondent and
the Union are parties to a collective-bargaining agreement ef-
fective September 15, 1989, through September 14, 1994,
covering those employees.1
On March 9, 1991,2 two customers of the Respondent
complained about the job performance of cocktail server Lori
Cosenza Maiman. So far as is important here, as a result of
these complaints, Maiman was suspended; she filed a written
grievance, which was denied, and she was discharged. There-
after the discharge was converted to suspension without
backpay, and later she received partial backpay.
A similar incident happened on March 25 when a patron
complained about cocktail server Karen Mulkey. She was
suspended, and she filed a grievance which was denied. The
Union requested arbitration, then the matter was settled.
As to both grievances, Joseph ‘‘Ace’’ Orzechowski, the
Union’s business agent, requested that the Respondent fur-
nish the names, addresses, and phone numbers of the com-
plaining customers.
The denials of these requests were communicated to
Orzechowski by letters dated March 29 and April 25, in
which the material language is identical
We provided you with the guest’s statement . . . how-
ever, we did not disclose the name and phone number
of the guest. This has been a practice at Merv Griffin’s
Resorts since opening. If you proceed arbitration, you
will have an opportunity at that hearing to cross-exam-
ine the guest. . . .
. . . should you have any specific questions I will be
more than willing to contact the guest(s). At the same
time, if the guest(s) authorizes release of his (their)
name(s), I will then have no further objection.
Orzechowski did not respond to either of these letters, so
far as the Respondent’s suggestion that the guests would be
contacted, if he wanted, to see if they would authorize re-
lease of their names. And, as noted, both grievances were
settled before arbitration.
1438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Fairmont Hotel, supra at fn. 3.
III. ANALYSIS AND CONCLUDING FINDINGS
On these facts the General Counsel and the Union contend
that the Respondent was required to furnish the Union infor-
mation necessary for servicing the collective-bargaining
agreement—the names, addresses, and phone numbers of the
complaining patrons.
The Respondent argues that it has an overriding interest in
protecting the confidentiality of its customers; that it in fact
offered to ask the customers if they would allow their name
to be given the Union; and whatever right the Union might
have in securing the names of complaining patrons in a situa-
tion such as these, that right was waived in negotiations.
The parties agree that the basic legal principle here is well
settled. The Union is entitled to whatever information is nec-
essary for it to perform its duty as the bargaining representa-
tive of employees. NLRB v. Acme Industrial Co., 385 U.S.
432 (1967); Howard University, 290 NLRB 1006 (1988);
Washington Gas Light Co., 273 NLRB 116 (1977).
Though the initial test is whether the information sought
is relevant, the employer nevertheless need not produce in-
formation which is confidential or privileged. Thus the claim
of confidentiality must be balanced against the union’s need
for the information. Detroit Edison v. NLRB, 440 U.S. 301
(1979). But on this the employer has the burden of proof.
The Respondent seems to agree that the information
sought here is of the type which it would generally be re-
quired to produce; however, it claims there is an overriding
interest protecting the confidentiality of its guests.
The Respondent offered evidence and argument that run-
ning a gambling casino is highly competitive, where great
care is taken to ensure superlative service and to protect the
confidentiality of customers. The Respondent annually
spends millions of dollars to attract customers and in fact has
about 2.5 million patron visits each year. Of these, according
to John P. Belisle, the vice president of marketing, about
24,000 are what he would refer to as high rollers or rated
players—individuals who are willing to put $1000 or more
at risk. A hugh majority of the patron visits are repeats; thus
Belisle estimated that the Respondent annually has about
200,000 different customers. Much of his testimony dealt
with high rollers and rated players who, because they put at
risk substantial sums of money, expect to be treated well, lest
they take their business elsewhere.
Therefore, to solicit a gratuity, which were the complaints
here, was a serious violation of company policy. Further
Belisle offered the opinion that releasing the names of cus-
tomers ‘‘could have an impact, depending on the level of
player’’; and to protect the anonymity of the complaining
guests was more important than the Union’s right to their
names. However, there is no evidence that the complainants
were high rollers or rated players, or even that they were
gamblers. Thus, the Respondent’s argument has a certain ap-
peal in the abstract; however, in this factual setting it is not
persuasive.
As to the particular grievances here and the Respondent’s
refusal to furnish the names of the complaining guests, this
situation is essentially identical to Fairmont Hotel, 304
NLRB 746 (1991). While the business of the Respondent
might in some circumstances serve to distinguish this matter
from Fairmont Hotel, none have been established.
In Fairmont Hotel, the Board found that the company
failed to show it had promised the guest anonymity, or that
the guest had any reasonable expectation of privacy. Further
the guest appeared at the arbitration hearing which rendered
moot any claim of anonymity. And finally, even if the com-
pany had establised its claim for confidentiality, it failed to
show it met its bargaining obligation by offering some ac-
commodation to the competing interests.
Here the Respondent offered no evidence that the com-
plaining guests were assured of confidentiality or expected it.
Absent such evidence it is just as reasonable to conclude that
a customer who complains to management about an em-
ployee would assume that employee would be told who
lodged the complaint. In any event, the burden is on the Re-
spondent to prove its claim of confidentiality and it failed to
do so.
As in Fairmont, the Union was told that the complaining
guests would be present at the arbitration hearing, and no
doubt would have been but for settlement of the grievances.
Had they appeared it would have been at the insistence of
the Respondent who, under the collective-bargaining agree-
ment, had the burden of proving just cause for the discharge
in question. Such necessarily would have violated the pro-
fessed necessity for protecting the guests’ confidentiality,
simply to support the Respondent’s discharge decision. But
Belisle testified that to release the name of a customer would
be more damaging to the Respondent than the act for which
Maiman and Mulkey were discharged.
There is an inherent inconsistency in the Respondent’s ar-
gument. Indeed, the Respondent seeks to pick and choose the
point when protecting the confidentiality of a complaining
guest is paramount and when it is not. I conclude that such
a position is contrary to the claim that the identity of the
complaining guests must be confidential. Therefore, by fail-
ing to furnish their names, addresses, and phone numbers on
request, the Respondent breached its bargaining obligation.
I further conclude that the Respondent’s two additional de-
fenses are insufficient to alter this result. First, it is argued
that an offer was made in the letters of March 29 and April
25 to contact the guests and, if they agreed, to release their
names. The Union did not respond to this suggestion. Thus,
the question is whether such was a reasonable offer by the
Respondent to accommodate the competing interests here.
I conclude not. First, in order to have a defense of accom-
modation, the Respondent must first prove its claim of con-
fidentiality. Only then is there triggered the balancing of the
the Union’s needs against the confidentiality concerns.3 Sec-
ondly, this offer does not really balance the competing inter-
ests but is simply a suggestion to check with the guest to see
if they wanted to be anonymous—something the Respondent
should have done in the first instance.
Joanne Gitto, the Respondent’s director of employee labor
relations, testified that prior to receiving the first written de-
mand from Orzechowski, she had a brief meeting with him
at which time she offered to call the guests and ask them any
questions he posed, or to arrange for a conference call. She
testified he declined this offer. Orzechowski specifically de-
nied any such offer being made by Gitto.
This apparent conflict in testimony is on a somewhat tan-
gential issue and need not be resolved. Gitto’s offer, if there
was one, relates to the Respondent’s defense that it offered
to accommodate the competing interests, which would have
1439RESORTS INTERNATIONAL HOTEL
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
5 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.’’
been viable only if the Respondent had first established the
need for confidentiality. Secondly, Gitto’s stated offer is not
substantively different from that in her letters—which
Orzechowski did not answer. Thus, to credit her would not
add much. To credit him would not subtract much.
I conclude that the Respondent in fact offered to contact
the guests. But this is no defense because the Respondent did
not establish the need for confidentiality or that the guest
reasonably expected that their names not be released to the
employee about whom they complained.
The Respondent further argues that the Union waived its
right to the names of complaining guests in such cir-
cumstances as these during contract negotiations. Specifi-
cally, in 1989 negotiations with the employer the Union
made a proposal which included: ‘‘In addition, the names
and addresses of any customers, who make written com-
plaints on an employee shall be furnished to the union upon
request if they are relied upon by the employer, as a basis
for a discharge or suspension of employees.’’ The employ-
ers’ initial response was ‘‘The proposal is unacceptable.’’
But in subsequent colloquy recorded between the chief nego-
tiators, the employers stated: ‘‘Will take a bye on this issue
now.’’ And nothing more was done during negotiations.
On these facts the Respondent contends the Union waived
its statutory right to have the names of complaining cus-
tomers. I disagree. While it is possible for a union to waive
its statutory rights in negotiations, such a conclusion is not
favored and therefore must be established by clear and con-
vincing evidence. For the Respondent to approve its defense
here, the evidence must establish a ‘‘clear and unmistakable
waiver by the Union of its statutory right to request informa-
tion from the Respondent.’’ Clinchfield Coal Co., 275 NLRB
1384, 1385 (1985).
In effect, the Respondent argues that a union waives statu-
tory rights if it makes a proposal relating to them which it
does not pursue. Such a rule would clearly inhibit negotiation
and compromise and therefore cannot be clear and unmistak-
able proof of waiver. To establish waiver it must be shown
that the union actually intended to give up a statutory right.
For instance, the union abandoned statutory right in return
for some benefit. There is no such evidence here. The evi-
dence relied on by the Respondent falls short of clear and
convincing proof that the Union waived it statutory right to
the name of individuals whose complaints the Respondent re-
lied on to discipline employees.
On the foregoing findings, conclusions, and the entire
record in this matter, I conclude that by failing on request
to furnish the Union with the names, addresses, and phone
numbers of complaining guests in connection with grievances
of employees, the Respondent violated Section 8(a)(5) and
(1) of the Act and I issue the following recommended4
ORDER
The Respondent, Resorts International Hotel Casino, At-
lantic City, New Jersey, 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 of 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 and ad-
dresses of the complaining guests in connection with the
1991 grievances of Lori Maiman and Karen Mulkey.
(b) Post at its Atlantic City, New Jersey facility copies of
the attached notice marked ‘‘Appendix.’’5 Copies of the no-
tice, on forms provided by the Regional Director for Region
4, 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 are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, 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 fail or refuse to bargain in good faith with
Hotel Employees and Restaurant Employees International
Union Local 54, AFL–CIO, by withholding from it requested
information material to the processing of grievances or the
administration of our collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the National Labor Rela-
tions Act.
WE WILL, on request, furnish the Union with the names,
addresses, and telephone numbers of the complaining guests
in connection with the March 1991 grievances of Lori
Cosenza Maiman and Karen Mulkey.
RESORTS INTERNATIONAL HOTEL CASINO