05/14/2025: CBA Rule Prohibiting Contacting Hotel Guests During Investigation Not Illegal
An oddball ALJ decision.
Fontainebleau Hotel, LLC D/B/a Fontainebleau Miami Beach, JD-43-25, 12-CA-328671 (ALJ Decision)
This May 14, 2025 decision by Administrative Law Judge Ira Sandron dismissed an unfair labor practice complaint against Fontainebleau Miami Beach. The case involved charging party Cesar Augusto Mainardi, Sr., who was discharged on June 12, 2023, for refusing to cooperate in an internal investigation and for filing a civil tort action against one of the hotel's customers.
After Mainardi's initial charge regarding his discharge was dismissed, he filed a second charge alleging that Article 32, Section 5 of the hotel's collective bargaining agreement (CBA) with UNITE HERE Local 355 violated Section 8(a)(1) of the National Labor Relations Act by prohibiting employees from engaging in protected concerted activity.
The disputed CBA provision, located in the Guest Service Commitment section, included language stating that "the Union and its members, nor any agents thereof, shall not contact any Hotel guest directly during an investigation or processing of any grievance." However, the provision also specified that guests could reach out to the union or its members.
Judge Sandron analyzed the provision under the framework established in Stericycle, determining that Article 32, Section 5 did not explicitly restrict Section 7 activity. The judge reasoned that the provision was limited to situations involving pending investigations, grievances, or arbitrations, and did not generally prohibit employees from communicating with guests about their employment terms and conditions.
Even assuming the provision could potentially chill employees' exercise of Section 7 rights, the judge concluded that the hotel's legitimate interest in preventing intimidation of guests outweighed employees' Section 7 rights in this context. The judge distinguished this case from precedents like PAE Applied Technologies, noting that hotel guests are more vulnerable to potential intimidation than the government customer in that case.
The judge concluded that the record did not establish that a more narrowly tailored rule would adequately protect the hotel's interests.
Based on these findings, Judge Sandron dismissed the complaint, ruling that Fontainebleau Miami Beach did not violate the Act by maintaining and enforcing Article 32, Section 5 of its CBA.
Significant Cases Cited
Stericycle, Inc., 372 NLRB No. 113 (2023): Established the balancing test for determining when employer work rules violate the NLRA.
PAE Applied Technologies, LLC, 367 NLRB No. 105 (2019): Held that employees have a Section 7 right to communicate with their employer's customers about employment terms and conditions.
Kinder Care Learning Centers, 299 NLRB 1171 (1990): Found that restricting employee communications with customers violated Section 7 rights.
Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019): Referenced in footnote as prior Board standard that would have clearly found the provision legal.