Petition for Review and Cross-Petition for Enforcement of the Order of the National Labor Relations Board No. 4-CA-19690.
Before: Cowen, Roth, and Rosenn, Circuit Judges.
The narrow question presented by this appeal is whether an employer must disclose the identity of a complaining customer to a union when a union member is subjected to disciplinary proceedings based on the customer's complaint. The employer in this case, Resorts International Hotel Casino (Resorts), received separate verbal complaints from two of its customers regarding the job performance of two of its cocktail servers (the servers). Resorts suspended the two employees pending investigations. The suspended employees each filed grievances that were denied, and the employees were discharged.
At the grievance meetings held according to contract procedure, Local 54 of the Hotel Employees and Restaurant Employees International, AFL-CIO (Union), requested the employer to furnish the names, addresses, and telephone numbers of the complaining customers. The Union stressed that it required this information to investigate the merits of the grievances and determine whether they should be taken to arbitration. Resorts refused to provide the requested information. Consequently, the Union filed an unfair labor practice charge against Resorts for failure to disclose relevant information. The National Labor Relations Board (NLRB or Board), respondent, thereafter issued a complaint asserting violations of subsections 8(a)(5) and (1) of the National Labor Relations Act (NLRA or Act). 29 U.S.C. § 158(a)(1), (5) (1988).
After a hearing, the Administrative Law Judge (ALJ) decided that the Union was statutorily entitled to the requested information and that it had not waived its right to receive it. Therefore, the ALJ held that Resorts violated the NLRA by refusing to disclose the relevant information.
Resorts filed timely exceptions to the ALJ's decision. The Board, however, adopted the ALJ's Decision and Order in all respects. Resorts petitioned this court for review, and the NLRB cross-petitioned for enforcement of the Decision and Order. This court granted the Union's motion to intervene.*fn1 The petition for review will be denied; the cross-petition for enforcement will be granted.
Resorts is a corporation engaged in the operation of a casino hotel in Atlantic City, New Jersey. Resorts and the Union are parties to a collective bargaining agreement effective at all times pertinent to this matter.
In March 1991, two patrons complained separately to Resorts personnel regarding two Resorts cocktail servers, both of whom were members of the Union. A Resorts supervisor prepared a written summary of each of the complaints. At no time did the complaining guests request that their identities remain confidential, and Resorts did not tender assurances of anonymity to them.
The collective bargaining agreement affords Resorts "the unquestionable right to immediately suspend and/or discharge any employee for . . . overt discourteous conduct towards a guest or patron." In preparing for the grievance hearings, the Union requested identity information of the complaining guests. Resorts denied the requests and instead furnished the Union with the supervisor's written summaries of the complaints with the names of the guests deleted.
In refusing to divulge the requested information, Resorts, in letters written to the Union by its director of employee relations, stated:
If you proceed to arbitration, you will have an opportunity at that hearing to cross-examine the guest. The refusal to release the information should not be construed as a refusal to bargain but rather to protect the privacy of our guest.
Again, this statement was relied on at the grievance hearing and should you have any specific questions, I will be more than willing to contact the guest. At that same time, if the guest authorizes release ...