This National Labor Relations Board (NLRB) decision addresses alleged violations of Sections 8(a)(5) and (1) of the National Labor Relations Act (Act) by Gretna Racing, LLC, d/b/a Magic City Casino (the Respondent), for refusing to provide UNITE HERE Local 355, AFL–CIO (the Union) with requested surveillance video footage.

The Administrative Law Judge (ALJ) Sarah Karpinen found that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to furnish the Union with an opportunity to view requested relevant video surveillance footage. The footage pertained to an incident during a housekeeping department meeting that led to the discipline of two unit employees and a resulting grievance.

The ALJ's decision details the timeline of events, including the September 19, 2023, housekeeping meeting where two employees received verbal coaching. The ALJ noted that the Housekeeping Manager issued the discipline based on his firsthand observation, without viewing the video. However, Human Resources personnel later viewed the surveillance video as part of their investigation into a complaint.

The Union made several requests for the video, beginning with a written information request on September 26, 2023, as part of filed grievances. The Respondent initially responded with "N/A" to the request for information gathered during the investigation and used for discipline. Subsequently, the Union made verbal and written requests for the video, which the Respondent initially claimed was not used in the disciplinary decision. Later, the Respondent offered to provide the video, but only if the Union signed a confidentiality agreement and withdrew its unfair labor practice charge. The Union rejected the confidentiality agreement's terms, including limitations on who could view the video and provisions for attorney fees.

The Respondent then asserted a confidentiality defense, citing Florida Administrative Code § 75-14.054 and claiming a past practice of requiring confidentiality agreements for video surveillance footage. The ALJ found that the Respondent failed to establish a legitimate and substantial confidentiality interest and did not raise its confidentiality defense in a timely manner. The ALJ also found that the Respondent failed to demonstrate a clear and unmistakable waiver by the Union of its right to access such information, noting that past confidentiality agreements were for specific grievances and not a blanket agreement for all video footage. Furthermore, the ALJ concluded that the Florida Administrative Code did not support the Respondent's claim, as it did not prohibit allowing employees to view surveillance video, and the Respondent had not properly raised this defense with the Union.

The ALJ rejected the Respondent's argument that the information request was moot because the discipline became "null and void" under the collective-bargaining agreement's progressive discipline provisions. The ALJ noted that the Board determines violations based on the facts at the time of the request and that the Respondent failed to demonstrate that the Union no longer needed the information, especially since one grievance remained pending at the time of the hearing.

The NLRB, in its Decision and Order, affirmed the ALJ's rulings, findings, and conclusions, adopting the recommended Order as modified. The Board agreed that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with an opportunity to view the requested video surveillance footage. The Board found it unnecessary to pass on the ALJ's interpretation of the Florida Administrative Code, as it adopted the ALJ's finding that the Respondent failed to timely raise a confidentiality defense. The Board also rejected the mootness argument, citing precedent that violations are based on facts at the time of the request and that the Respondent bore the burden of proving the Union no longer needed the information.

Member Prouty specifically noted that the Union's initial request for the video on October 20, 2023, established the appropriate date of the violation, and this request was for the video to be provided to the Union's representative, with the standard remedy being the furnishing of a copy.

The NLRB modified the ALJ's recommended Order to conform to standard remedial language and adopted the substitute notice to employees.

Significant Cases Cited

• Standard Dry Wall Products, 91 NLRB 544 (1950): This case establishes the Board's policy of not overturning an administrative law judge's credibility resolutions unless a clear preponderance of the evidence indicates they are incorrect.
• Borgess Medical Center, 342 NLRB 1105 (2004): This case reiterates that the Board determines violations based on the facts that existed at the time of the union's request and that employers have an obligation to seek to accommodate confidentiality concerns with the union's need for information.
• Boeing Co., 364 NLRB 158 (2016): This case is cited for the principle that an employer bears the burden of establishing that a union no longer needs information for a grievance, particularly when a grievance is still pending.
• Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979): This Supreme Court case addresses an employer's ability to withhold relevant information based on a claim of confidentiality and the necessary showing to support such a claim.
• PAE Aviation & Tech. Services LLC, 366 NLRB No. 95 (2018): This case is cited for the principle that the duty to bargain in good faith includes providing unions with information relevant to processing grievances, and that information pertaining to unit employees is presumptively relevant.

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