San Pablo Lytton Casino,

Docket Number:32-CA-025585
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Lytton Rancheria of California d/b/a Casino San Pablo and UNITE HERE Local 2850. Cases 32– CA–025585, 32–CA–025665, 32–CA–064020, and 32–CA–086359

December 16, 2014

DECISION AND ORDER REMANDING IN PART BY CHAIRMAN PEARCE AND MEMBERS JOHNSON

AND SCHIFFER

On March 5, 2013, Administrative Law Judge Jay R. Pollack issued the attached decision. The Charging Party filed exceptions with supporting argument and the Respondent filed an answering brief. In addition, the General Counsel filed cross-exceptions and a supporting brief; the Respondent filed an answering brief; and the General Counsel filed a reply brief.

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, cross-exceptions, and briefs, and has decided to affirm the judge’s rulings, findings,1 and conclusions only to the extent consistent with this Decision and Order.2

1 The parties have implicitly excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188

F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

The Respondent did not except to the judge’s findings that it violated Sec. 8(a)(5) by: (1) refusing to bargain with the Union; (2) unilaterally announcing and implementing new benefits for part-time employees; (3) unilaterally refusing to provide contractual health benefits for four unit employees; (4) unilaterally reducing the number of shifts for four unit employees; (5) unilaterally establishing rules that prohibit access to the Casino, including requiring union representatives to disclose the purpose of their meetings with employees and conditioning access on the Union having a scheduled meeting with an employee; and

(6) refusing to provide relevant information necessary for bargaining and grievance handling. Further, the Respondent did not except to the judge’s findings that it violated Sec. 8(a)(1) by coercively interrogating an employee and by telling an employee not to discuss his investigation with other employees.

There were no exceptions to the judge’s failure to address consolidated complaint pars. 6(a) and (c), 12(a), (b), and (c)(6). Accordingly, we shall dismiss these complaint allegations. See North Hills Office Services, 346 NLRB 1099, 1099 fn. 9 (2006).

2 We shall modify the judge’s conclusions of law and remedy and substitute a new Order and notice to conform to our findings, and to the Board’s decisions in J. Picini Flooring, 356 NLRB No. 9 (2010), and Durham School Services, 360 NLRB No. 85 (2014).

The Respondent operates a commercial gaming and entertainment establishment (the Casino). The Union represents about 160 employees, and the parties’ most recent collective-bargaining agreement was effective from November 2006 through November 2009. The complaint alleges that the Respondent committed multiple Section 8(a)(1) and (5) violations. The judge found many of the alleged violations, and we adopt those findings.

However, despite making relevant findings of fact, the judge failed to analyze several other complaint allegations, including Section 8(a)(1) allegations related to the Respondent’s employee handbook rules and Section 8(a)(5) allegations related to its denial of access to union representatives. The General Counsel and the Charging Party have excepted to the judge’s failure to find these alleged violations.3 As explained more fully below, we conclude that the Respondent violated Section 8(a)(1), as alleged, by maintaining four of the five challenged handbook rules. We further conclude, based on the judge’s findings of fact, that the Respondent violated Section 8(a)(5) by unilaterally implementing rules barring union representatives from accessing the employee break room and by barring Union Representative Jessica Medina from its property indefinitely. However, we remand to the judge for further consideration the remaining allegation that the Respondent violated Section 8(a)(5) by unilaterally implementing a rule barring union representatives from accessing areas of the Casino where employee schedules are posted.

  1. The Employee Handbook Rules

    The complaint alleges, and the Respondent admits, that it maintained the following rules in its 2008 employee handbook from about August 2010 until May 2011, when the employee handbook was rewritten and redistributed:

    (a) “Unacceptable Behavior

    . . . .

    Gossiping about other Team Members (including supervisors, managers, directors, etc.).”

    (b) ”Team Member Conduct and Work Rules

    . . . .

    The following are examples of rule violations that may result in disciplinary action, up to and including separation of employment:

    . . . .

    3 The Charging Party has excepted only to the judge’s failure to address certain of the 8(a)(5) allegations regarding restricting the access of the union representatives.

    Insubordination or other disrespectful conduct (including failure to cooperate fully with Security, supervisors and managers).”

    (c) ”Solicitation, Distribution and Bulletin Boards

    . . . .

    Team Members may not solicit or distribute literature in the workplace at any time, for any purpose.”

    (d) ”Team Member Conduct and Work Rules

    . . . .

    The following are examples of rule violations that may result in disciplinary action, up to and including separation of employment:

    . . . .

    Making false, fraudulent or malicious statements to or about a Team Member, a guest or San Pablo Lytton Casino.”

    (e) ”Access

    . . . .

    Team Members are not permitted in the back of the house areas more than thirty (30) minutes prior to the beginning of their shift or longer than thirty

    (30) minutes following the end of their shift, except under the following circumstances:

    1. To conduct business with Human Resources; Pre-arranged training sessions or orientations;

    2. With the approval of a director, manager, or supervisor.”

    The complaint further alleges that the Respondent’s maintenance of each of these rules violated Section 8(a)(1).

    In determining whether a work rule violates Section 8(a)(1), the appropriate inquiry is whether the rule would reasonably tend to chill employees in the exercise of their Section 7 rights. Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). If the rule explicitly restricts employees’ Section 7 activity, it is unlawful. Lutheran Heritage Village-Livonia, 343 NLRB 646, 646 (2004). Absent such an explicit restriction, a violation is dependent upon a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. Id. at 647. In undertaking this analysis, the Board must refrain from reading particular phrases in isolation, and it must not presume improper interference with employee rights. MCPc, Inc., 360 NLRB No. 39, slip op. 7 (2014). However, ambiguous employer rules—rules that reasonably could be read to have a coercive meaning—are construed against the employer. Lafayette Park Hotel, above, 326 NLRB at 828.

    DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

    1. Rule Prohibiting Gossip

    We find no merit in the General Counsel’s crossexception that the judge erred by failing to find that the rule prohibiting gossiping about other team members violated Section 8(a)(1). Applying Lutheran Heritage, the rule does not explicitly restrict Section 7 activities. Moreover, there is no evidence that the rule was promulgated in response to union activity or was applied to restrict the exercise of Section 7 rights. Accordingly, the only question is whether the Respondent’s employees would reasonably construe the rule to prohibit Section 7 activity. We find that they would not.

    In Claremont Resort & Spa, 344 NLRB 832, 832 (2005), cited by the General Counsel, the Board found that a rule prohibiting “negative conversations about associates and/or managers” violated Section 8(a)(1). The Board found that employees would reasonably construe the rule to prohibit them from discussing concerns about their managers that affect working conditions, which would tend to cause them to refrain from engaging in protected activities. Id. The General Counsel argues that the instant rule is unlawful because gossip is arguably a form of negative conversation.

    As explained in Hyundai America Shipping Agency, 357 NLRB No. 80 (2011), the rule at issue in Claremont Resort concerned employee conversations generally, which would implicitly include protected concerted activity. In contrast, the Respondent’s rule here, like the rule found lawful in Hyundai, specifically prohibits gossip, which is commonly defined and reasonably understood as chatty talk or rumors or reports of an intimate nature. 357 NLRB No. 80, slip op. at 2. See also Wilshire at Lakewood, 343 NLRB 141 fn. 2, 145 (2004), vacated in part on other grounds 345 NLRB 1050 (2005), revd. on other grounds Jochims v. NLRB, 480

    F.3d 1161 (D.C. Cir. 2007) (employer did not violate Section 8(a)(1) by maintaining a rule in its employee handbook prohibiting rumors and gossip in the facility). We find that the Respondent’s employees would not reasonably construe the rule prohibiting gossiping about team members to restrict Section 7 activity. Accordingly, the allegation is dismissed.4

    4 Contrary to...

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