Greektown Casino (07-CA-245136)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

SAM

DATE:

December 20, 2019

TO:

Terry Morgan, Regional Director

Region 7

FROM:

Richard A. Bock, Associate General Counsel

Division of Advice

SUBJECT: Greektown Casino, LLC

Case 07-CA-245136

530-6067-6001-3730

530-6067-6050-0000

737-2850-2233-0000

This case was submitted for advice as to whether the Employer unlawfully failed

and refused to provide information requested by the Union in connection with an

alleged violation of the anti-discrimination clause of the parties’ collective-bargaining

agreement based on a supervisor’s allegedly racist behavior toward a unit employee.

We conclude that: (1) the Employer violated Section 8(a)(5) by refusing to provide the

Union with the requested June 10, 2019 video surveillance. When litigating the

Employer’s failure to provide the footage, the Region should urge the Board to follow

common law principles and Federal Rules of Civil Procedure and find that parties

have an affirmative duty to preserve information once it has been requested. In that

regard, the Region should argue the Employer’s destruction of the video information

after the Union had requested it, even if purportedly according to the Employer’s

retention policy, estops the Employer from using the nonexistence of the video as a

defense to the Section 8(a)(5) charge; and (2) the Region should not issue complaint

alleging that the Employer unlawfully delayed providing the Union with the

supervisor’s witness statement, since the Employer provided the Union access to the

statement following the mediation process.

FACTS

Local 7777, International Union, United Automobile, Aerospace and Agricultural

Implement Workers of America (UAW), AFL-CIO (“Union”) represents a unit of, inter

alia, casino table-game dealers at Greektown Casino-Hotel (“Employer”) in Detroit,

Michigan. The parties have a collective-bargaining agreement that expires on October

16, 2020

statement following the mediation process.

FACTS

Local 7777, International Union, United Automobile, Aerospace and Agricultural

Implement Workers of America (UAW), AFL-CIO (“Union”) represents a unit of, inter

alia, casino table-game dealers at Greektown Casino-Hotel (“Employer”) in Detroit,

Michigan. The parties have a collective-bargaining agreement that expires on October

16, 2020. Article 3 of the agreement contains a “No Discrimination” policy and states,

in pertinent part,

Neither [the Employer] nor the Union shall discriminate against

[employees] because of gender, race, color, creed, national origin, age,

Case 07-CA-245136

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the incident involved a salaried employee—i.e., a supervisor—the Employer would not

provide any information to the Union. A similar exchange occurred on July 5 when

the Union again demanded the requested information and the Employer provided a

nearly identical response to the one given on June 28.

The Union filed the instant charge on July 18. The parties met with a mediator

on

to discuss the underlying grievance and information request pertaining

thereto. During mediation, the Employer said it would give the Union the requested

information if the Union signed a non-disclosure agreement (“NDA”).

The Union signed the NDA on August 30. By September 3, the Union had viewed

the supervisor’s witness statement and a surveillance video from the initial May 28

incident, but not the requested June 10 surveillance video.

On September 13, during the course of the Region’s investigation of the charge,

the Employer took the position that the June 10 video no longer existed because the

employee failed to report that day’s incident to HR and, absent a specific reason to set

it aside for preservation, the video was over-written after 14 days pursuant to the

Employer’s existing retention policy

rveillance video.

On September 13, during the course of the Region’s investigation of the charge,

the Employer took the position that the June 10 video no longer existed because the

employee failed to report that day’s incident to HR and, absent a specific reason to set

it aside for preservation, the video was over-written after 14 days pursuant to the

Employer’s existing retention policy.

ACTION

The Region should issue complaint, absent settlement, alleging the Employer

violated Section 8(a)(5) by failing to provide the Union with the June 10 surveillance

video. The Employer’s destruction of the facially relevant footage after it knew the

Union had specifically requested it precludes the Employer from relying on the

information’s nonexistence as a defense to the Section 8(a)(5) charge. The Region

should also urge the Board to follow common law principles and Federal Rules of Civil

Procedure and hold a party’s knowing destruction of information after it has been

requested precludes the party’s reliance on its nonexistence as a defense to a refusal-

to-provide-information allegation. However, the Region should not allege that the

Employer unlawfully delayed providing the witness statement to the Union because

the Employer provided it to the Union following the mediation process.2

As a preliminary matter, we note that the information requested by the Union is

presumptively and facially relevant given the nature of the allegations against the

supervisor, which directly implicate the no discrimination provision of the parties’

2 Accordingly, this case does not furnish an appropriate vehicle to argue that the

Board should overrule Piedmont Gardens, 362 NLR 1135 (2015) (overruling Anheuser

Busch, 237 NLRB 982 (1978), and holding witness statements in employer

investigations of workplace misconduct disclosable).

the no discrimination provision of the parties’

2 Accordingly, this case does not furnish an appropriate vehicle to argue that the

Board should overrule Piedmont Gardens, 362 NLR 1135 (2015) (overruling Anheuser

Busch, 237 NLRB 982 (1978), and holding witness statements in employer

investigations of workplace misconduct disclosable).

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

Case 07-CA-245136

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collective-bargaining agreement and the employees’ terms and conditions of

employment generally.3

We conclude that the Employer had an affirmative duty to preserve the

requested information and provide it to the Union, and reject the assertion that an

otherwise lawful retention policy allows for the destruction of such information in

these circumstances.

Generally, parties have a common law duty to preserve evidence within their

“possession, custody, or control” that is potentially relevant to “specific, predictable,

and identifiable litigation.”4 For a defendant, that duty is triggered, “at the latest,

when the defendant is served with the complaint.”5 Failure to comply with that duty

results in spoliation,6 which prevents other parties to the litigation from obtaining

relevant evidence in discovery and undermines the integrity of the judicial process.7

Consequently, courts have the inherent power to impose sanctions for spoliation.8

The foregoing reasoning is particularly applicable here, where the Employer was

in receipt of the information request for the surveillance video, yet nevertheless

destroyed the video. Federal Rule of Civil Procedure 37(e)(2) is also instructive as it

3 Nob Hill General Stores, Inc., 368 NLRB No. 63, slip op. at 6 (Aug

spoliation.8

The foregoing reasoning is particularly applicable here, where the Employer was

in receipt of the information request for the surveillance video, yet nevertheless

destroyed the video. Federal Rule of Civil Procedure 37(e)(2) is also instructive as it

3 Nob Hill General Stores, Inc., 368 NLRB No. 63, slip op. at 6 (Aug. 29, 2019) (union’s

information request regarding bargaining unit employees is presumptively relevant

and employer obligated to provide information to union); Westinghouse Electric

Corporation, 239 NLRB 106, 107–8 (1978) (union entitled to information requested

about racial discrimination by employer because it is presumptively relevant both

under parties’ contractual no-discrimination policy and as a statutory matter to

ensure all bargaining unit members treated fairly), enforced sub nom., Int’l Union of

Elec. and Radio Mach. Workers AFL-CIO-CLC v. NLRB, 648 F.2d 18 (D.C. Cir. 1980).

4 Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 521–38 (D. Md. 2010)

(internal quotation marks omitted).

5 Id. at 522.

6 THE SEDONA CONFERENCE, THE SEDONA CONFERENCE GLOSSARY: E-DISCOVERY &

DIGITAL INFORMATION MANAGEMENT 356 (4th ed. 2014), available at

https://thesedonaconference.org/node/238 (“Spoliation is the destruction of records or

properties, such as metadata, that may be relevant to ongoing or anticipated

litigation, government investigation or audit.”) (last visited Dec. 13, 2019).

7 See Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590–91 (4th Cir. 2001).

8 Id. at 590.

INFORMATION MANAGEMENT 356 (4th ed. 2014), available at

https://thesedonaconference.org/node/238 (“Spoliation is the destruction of records or

properties, such as metadata, that may be relevant to ongoing or anticipated

litigation, government investigation or audit.”) (last visited Dec. 13, 2019).

7 See Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590–91 (4th Cir. 2001).

8 Id. at 590.

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expressly provides for sanctions against a party that destroys electronically stored

information or otherwise “act[s] with the intent to deprive another party of the

information’s use.” These sanctions may include a presumption that the lost

information was unfavorable to the party, instructing a jury that it may or must

presume the information was unfavorable, or dismissing the action entirely.9 Such

sanctions in the context of FRCP 37(e)(2) are consistent with a finding that the same

conduct by an employer or union violates the duty to bargain in good faith.

The ALJ’s reasoning in Earthgrains Co., is instructive. There, the ALJ concluded

that the employer violated Section 8(a)(5) by failing to produce information

notwithstanding the employer’s argument that it no longer existed.10 The ALJ

criticized the employer for destroying information, ostensibly pursuant to its record-

preservation practices, after it received the union’s information request. The ALJ

rejected the employer’s defense that the information no longer existed, finding, “[b]y

knowingly continuing to destroy documents containing key information being sought

by the [u]nion, the [employer] manufactured its inability to produce [the] records.”11

This conclusion was based on common evidentiary rules regarding spoliation. In that

regard, we note that the Board and courts routinely draw upon evidentiary rules

when addressing parties’ failure to provide relevant evidence

knowingly continuing to destroy documents containing key information being sought

by the [u]nion, the [employer] manufactured its inability to produce [the] records.”11

This conclusion was based on common evidentiary rules regarding spoliation. In that

regard, we note that the Board and courts routinely draw upon evidentiary rules

when addressing parties’ failure to provide relevant evidence.

Guided by these principles, the Region should urge the Board to hold that parties

have an affirmative duty to preserve information once it has been requested and

pending such time as the relevance of the information can be established.12 Here, the

9 FED. R. CIV. P. 37(e)(2). See, e.g., Wilmoth v. Murphy, 2019 WL 3728280, at *4 (W.D.

Ark. 2019) (defendant’s bad faith in failing to preserve photos warranted sanction

that defendant not be allowed to call particular individuals as witnesses). Because the

Board considers only whether the information was relevant to the party’s duty as

collective-bargaining representative and not whether the underlying issue that

spawned the request has merit, we do not suggest that any adverse inference be made

on the underlying dispute between the parties that gave rise to the information

request. See E. I. Du Pont de Nemours & Co., 366 NLRB No. 178, slip op. at 4 (Aug.

27, 2018) (noting that ALJ improperly considered merits of union’s grievance and

stated “[i]t is axiomatic that the Board does not evaluate the merits of the union’s

contractual claim in determining relevance.”).

10 349 NLRB 389, 398 (2007), enforced in relevant part, sub nom., Sara Lee Bakery

Group, Inc. v. NLRB, 514 F.3d 422 (5th Cir. 2008).

11 Id. at 398.

12 The Board’s responsibility to resolve questions of labor law gives it wide latitude to

fashion appropriate rules for spoliation of relevant information that was timely

requested. See The Boeing Company, 365 NLRB No. 154, slip op. at 22 (Dec. 14, 2017)

07), enforced in relevant part, sub nom., Sara Lee Bakery

Group, Inc. v. NLRB, 514 F.3d 422 (5th Cir. 2008).

11 Id. at 398.

12 The Board’s responsibility to resolve questions of labor law gives it wide latitude to

fashion appropriate rules for spoliation of relevant information that was timely

requested. See The Boeing Company, 365 NLRB No. 154, slip op. at 22 (Dec. 14, 2017)

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June 10 video footage existed at the time it was requested and was facially relevant to

resolving the parties’ underlying contractual dispute over the supervisor’s alleged

behavior toward the employee. The Employer thus had an affirmative duty to

preserve and provide the existing video footage at least as of June 13 when the Union

gave clear notice of its request. Therefore, the Employer’s failure to do so violated

Section 8(a)(5).

Accordingly, the Region should issue complaint, absent settlement, alleging the

Employer’s failure to provide the Union with the June 10 video violated Section

8(a)(5) because the video was facially relevant and the Employer’s knowing failure to

preserve it once it had been requested by the Union estops the Employer from arguing

the video’s nonexistence as a defense to its failure to provide the information.

R.A.B.

H: ADV.07-CA-245136.Response.Greektown

doc

(“the Board has the responsibility to decide all matters that are properly before it,

based on [its] ‘special function of applying the general provisions of the Act to the

complexities of industrial life.’” (quoting NLRB v. Erie Resistor Corp., 373 U.S. 221,

236 (1963))).

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

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