New York New York Hotel & Casino

National Labor Relations Board - Board Decisions

Jul 25, 2001

334 N.L.R.B. 762 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 762
New York New York Hotel, LLC, d/b/a New York
New York Hotel and Casino and Local Joint Ex-
ecutive Board of Las Vegas, Culinary Workers
Union, Local 226, and Bartenders Union, Local
165, affiliated with Hotel Employees and Res-
taurant Employees International Union, AFL–
CIO. Case 28–CA–14519
July 25, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND TRUESDALE
On June 29, 1998, Administrative Law Judge Timothy
D. Nelson issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed limited exceptions and a supporting and
answering brief, and the Respondent filed a reply and
answering brief.1
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 and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified.2
The Respondent owns and operates a hotel and casino
facility in Las Vegas, Nevada. The Union represents a
bargaining unit of certain of the Respondent’s employ-
ees. Ark Las Vegas Restaurant Corporation (Ark) oper-
ates several restaurants and eateries within the casino. At
the time of the events in this case, the Union was at-
tempting to organize Ark’s employees and to obtain rec-
ognition from Ark.
On July 9, 1997, three off-duty Ark employees went to
the “porte-cochere” (the area just outside the main en-
trance to the casino), where they stood on the sidewalk
and attempted to distribute handbills to customers as they
entered the facility. The handbills bore an area standards
message, stating that Ark paid its employees less than
unionized workers and urging customers to tell Ark to
sign a union contract. The handbills expressly dis-
claimed any dispute with the Respondent. Shortly after
the handbillers appeared, they were informed by manag-
ers of the Respondent that they were trespassing on the
Respondent’s property and that they were not allowed to
solicit or distribute handbills there. When the handbillers
refused to leave, the Respondent called the police, who
issued trespass citations to the handbillers and escorted
them off the premises.

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 We shall amend the judge’s recommended Order to include the
payment of interest on legal expenses as part of the reimbursement
remedy. See, e.g., New Jersey Bell Telephone Co., 308 NLRB 277, 283
(1992). Interest shall be computed as set forth in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
The judge found that the Respondent violated Section
8(a)(1) of the Act by prohibiting the handbilling. In
reaching that conclusion, the judge found that, as em-
ployees of Ark, the handbillers enjoyed the right to use
the nonwork areas of the Respondent’s premises to dis-
tribute handbills to customers entering or leaving. We
agree.3 As the judge observed, the Board has held that
employees of a subcontractor of a property owner who
work regularly and exclusively on the owner’s property
are rightfully on that property pursuant to the employ-
ment relationship, even when off duty. Gayfers Depart-
ment Store, 324 NLRB 1246, 1249–1250 (1997), citing
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945);
Southern Services, 300 NLRB 1154, 1155 (1990), enfd.
954 F.2d 700 (11th Cir. 1992). By contrast, individuals
who do not work regularly and exclusively on the em-
ployer’s property, such as nonemployee union organiz-
ers, may be treated as trespassers, and are entitled to ac-
cess to the premises only if they have no reasonable non-
trespassory means to communicate their message. NLRB
v. Babcock & Wilcox, 351 U.S. 105 (1956); Lechmere,
Inc. v. NLRB, 502 U.S. 527 (1992).4 A clear distinction
exists between the Ark employees, who work regularly
and exclusively in the Respondent’s facility, and taxi and
limousine drivers and other delivery personnel who visit
that facility intermittently in the course of their employ-
ment. Contrary to the Respondent, nothing in this deci-
sion or in those on which it is based suggests that the
Respondent would be required to allow such individuals
to solicit or distribute handbills on its property.
Accordingly, such off-duty employees may engage in
protected solicitation and distribution in nonwork areas

3 We therefore need not address the General Counsel’s exception to
the judge’s failure to find that the Respondent and Ark had a “symbi-
otic relationship” such that the Ark employees should be found to have
the same access rights as the Respondent’s employees.
4 In Member Truesdale’s view, the reasoning of Lechmere does not
apply when nonemployee union representatives enter an employer’s
property to engage in Sec. 7 activities other than organization. See his
dissenting opinions in Loehmann’s Plaza, 316 NLRB 109 (1995), and
Leslie Homes, 316 NLRB 123 (1995), affd. sub nom. District Council
of Carpenters v. NLRB, 68 F.3d 71 (3d Cir. 1995). Accordingly, he
would apply a balancing test rather than the strict inaccessibility test of
Lechmere in cases involving Sec.7 activity other than organizational
activity.
Member Liebman did not participate in Leslie Homes or Loeh-
mann’s Plaza and has not passed on the proper test to be applied in
access cases involving nonorganizational Sec. 7 activity by nonem-
ployees. She finds it unnecessary to do so in this case as it does not
involve nonemployees, but rather off-duty employees of a subcontrac-
tor of the Respondent who work regularly and exclusively on the
Respondent’s property.
334 NLRB No. 87
NEW YORK NEW YORK HOTEL & CASINO 763
of the owner’s property unless the owner can show that
prohibiting that sort of activity is necessary to maintain
production and discipline.5
The judge also found that the porte-cochere was a
nonwork area, despite the fact that some of the Respon-
dent’s employees work there.6 We agree with that find-
ing for the reasons set forth in his decision. We note also
that in Santa Fe Hotel & Casino, 331 NLRB 723 (2000),
which issued after the judge rendered his decision, the
Board came to the same conclusion. The Board found
that the main function of the employer’s hotel/casino was
to lodge people and allow them to gamble, and that the
work of bellmen, valet parking attendants and security,
maintenance, and gardening personnel around entrances
to the employer’s facility was incidental to that function.
Were it to hold such areas to be “work areas” from which
off-duty employee handbillers could be excluded, the
Board reasoned, employees would be effectively denied
the right to distribute literature anywhere at the facility.7
Accordingly, the Board held that those areas were not
work areas. The same reasoning applies here.8

5 We reject the Respondent’s contention that Gayfers and Southern
Services are inconsistent with Scott Hudgens, 230 NLRB 414 (1977).
There, warehouse employees of a shoe store picketed one of the stores
on the property of a shopping mall. Although the Board analyzed the
pickets’ right of access to the mall property under Babcock & Wilcox
rather than under Republic Aviation, the pickets—unlike the handbillers
here—did not regularly work at the mall and thus were not rightfully on
the mall property pursuant to their employment relationship.
Contrary to the Respondent, it is irrelevant that the employee in
Southern Services (unlike the handbillers here) was distributing hand-
bills to other employees, rather than to customers, and was doing so on
her way into the facility to sign in for work, rather than on a day when
she was not scheduled to work. See, e.g., Gayfers (off-duty employees
of electrical contractor distributed area standards handbills to customers
of store in which employees were working); Nashville Plastic Products,
313 NLRB 462, 463 (1993) (off-duty employees seeking access to their
employer’s property for organizational purposes on days when they are
not scheduled to work, treated as employees and not as trespassers).
6 The record establishes that doormen, baggage handlers, and valet
parking attendants work continuously in the porte-cochere area, and
that other employees (e.g., bellmen, maintenance and security person-
nel) also work there regularly but not continuously.
In the last sentence of the fourth paragraph of his decision, the judge
inadvertently stated that the Respondent contended that the porte-
cochere was a nonwork area and that the General Counsel argued that it
was not; in fact, as the rest of the judge’s decision makes clear, it was
the General Counsel who argued that the porte-cochere was a nonwork
area and the Respondent who urged that it was a work area.
7 See U.S. Steel Corp., 223 NLRB 1246, 1247–1248 (1976).
8 The Respondent notes that the Board in other cases involving em-
ployee solicitation and distribution in casinos has applied the analysis
originally devised for such activities in retail stores. See, e.g., Dunes
Hotel, 284 NLRB 871, 876–878 (1987), citing Marshall Field & Co.,
98 NLRB 88 (1952), modified 200 F.2d 375 (7th Cir. 1953). The Re-
spondent contends that the porte-cochere should be considered akin to
aisles and corridors in retail stores, in which the Board in Marshall
Field held employee solicitation could be lawfully prohibited in the
interest of avoiding traffic and safety hazards. 98 NLRB at 92. We
The Respondent contends that the judge erred in fail-
ing to find that its expulsion of the handbillers was justi-
fied in the interest of maintaining production and disci-
pline. In this regard, the Respondent argues that the ban
was necessary to ensure proper service to its guests and
for the safety and security of its guests, employees, and
property. We find no merit in this exception. As the
judge found, the handbilling did not adversely affect ei-
ther the customers’ ability to enter or leave the facility or
the Respondent’s employees’ ability to perform their
customary work in the porte-cochere area. He also
found, and we agree, that the handbilling of customers
has no inherent tendency to interfere significantly with
any of those activities. We therefore find that the Re-
spondent has not shown that its ban on handbilling is
necessary to maintain production and discipline.
The Respondent also contends that the judge improp-
erly precluded it from asserting certain affirmative de-
fenses and from introducing evidence in support of those
defenses. We find no merit in that contention. The
judge held an extensive colloquy with the Respondent’s
counsel, in which counsel explained in detail the theories
behind the Respondent’s affirmative defenses and the
evidence he would offer in support of those defenses. He
also made a detailed offer of proof, including exhibits,
which the judge rejected.9 Thus, the judge did not pre-
vent the Respondent from asserting its affirmative de-
fenses. He simply rejected the proffered evidence on the
ground that it lacked even a “remote chance” of making
the Respondent’s case.10 As we explain below, we agree
with his assessment.
At the hearing, the Respondent’s counsel contended
that the July 9 handbilling was unprotected because it
was in aid of unlawful union activities. Specifically, he
argued that the Union had engaged in picketing and other
conduct with an object of forcing the Respondent to
cease doing business with Ark and other subcontractors,
in violation of Section 8(b)(4)(B). He also contended
that the Union’s economic pressure violated Section
8(b)(3) because it was intended to, in effect, force the
Respondent to agree to a mid-term modification of its

find no merit in that contention. There is no evidence that the handbill-
ing in this case (which took place on an 18-foot wide sidewalk) posed
or could have posed a traffic or safety hazard. And, as the judge found,
the handbillers did not interfere with customers entering or leaving the
casino, or with the Respondent’s employees performing their job du-
ties.
9 After the hearing closed, the Respondent requested the judge to
reopen the record and receive the excluded evidence. The judge denied
the request for the reasons he stated at the hearing.
10 Contrary to the Respondent’s suggestion, there is no reason why
its offer of proof should be found an insufficient basis for deciding the
merits of its defenses. See, e.g., Del Rey Tortilleria, 272 NLRB 1106,
1107–1108 (1984), enfd. 823 F.2d 1135 (7th Cir. 1987).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 764
collective-bargaining agreement with the Union, which
allowed the Respondent to subcontract food service func-
tions under certain conditions.11 In support of those con-
tentions, counsel offered to show, inter alia, that the Un-
ion had engaged in demonstrations and mass picketing,
at which some of the pickets and demonstrators wore t-
shirts and buttons with antisubcontracting messages.
One episode of mass picketing was taking place at the
same time the handbillers were in the porte-cochere on
July 9. Counsel also offered to show that union
representatives had made antisubcontracting comments
and that the Union had not petitioned for an election after
Ark refused its request for recognition.
As the party asserting that the handbillers’ actions
were unprotected because they had an unlawful objec-
tive, the Respondent has the burden to demonstrate the
unlawful nature of their conduct.12 Having reviewed the
evidence proffered by the Respondent in support of its
affirmative defenses, we agree with the judge that that
evidence failed to establish that the Union was engaged
in an unlawful course of conduct and that, even if it was,
the evidence did not establish that the handbillers were
acting in support of that conduct.
To begin with, the off-duty employees were engaged
in distributing handbills that bore an area standards mes-
sage and urged customers to tell Ark to sign a union con-
tract.13 The handbills contained no evidence of a secon-
dary or otherwise unlawful object; indeed, they specifi-
cally stated that the Union had no dispute with the Re-
spondent. There is no contention and no evidence that the
handbillers indicated in any way that their message was
anything other than what it purported to be: a message to
the public that Ark paid its employees less than union-
ized workers and an attempt to persuade Ark to sign a
contract with the Union. The handbillers’ conduct on
July 9 therefore was facially protected by Section 7.
Contrary to our concurring colleague, we also find that
the evidence offered by the Respondent does not estab-
lish that an object of the Union’s picketing and other
non-handbilling activity was to force the Respondent to
cease doing business with Ark or any other subcontrac-
tor, or to submit to contract modifications that would
eliminate or curtail subcontracting. There is no evidence

11 The Respondent filed charges alleging both of those theories, but
the charges were dismissed by the Regional Director and the dismissals
were upheld on appeal. At the outset of the hearing, the judge ruled that
the Respondent was not foreclosed from asserting its defenses by the
fact that the charges had been dismissed. See Chicago Tribune Co., 304
NLRB 259 (1991).
12 Cf. Electrical Workers Local 501 v. NLRB, 756 F.2d 888, 898 fn.
8 (D.C. Cir. 1985) (in 8(b)(4)(B) case, General Counsel has burden of
proving secondary boycott violation).
13 Id. at 894; Gayfers Department Store, 324 NLRB at 1250.
that the Union made any such demands on the Respon-
dent. There is no evidence, and no contention, that the
picket signs used by the union demonstrators bore any
such message; indeed, the Respondent’s counsel con-
ceded that the signs did not say “no subcontracting.”
Uncontroverted testimony indicates that the messages on
the picket signs were the same as those on the handbills.
Although some of the pickets wore t-shirts and pins with
“no subcontracting” messages, such messages are am-
biguous. They would not be inconsistent with a Union
demand (had such been made) for the Respondent or
other employers to cease doing business with Ark or
other subcontractors, or to submit to midterm modifica-
tions of the collective-bargaining agreement. However,
and especially absent such a Union demand, they are at
least as susceptible of being interpreted as voicing simple
opposition to subcontracting, or to further subcontract-
ing. The statements by union representatives quoted in
newspaper articles proffered by the Respondent indicate
that the Union disapproves of subcontracting, but other-
wise establish only that the Union was attempting to or-
ganize Ark. A videotape of a mass demonstration on
May 30 adds nothing to the Respondent’s defenses. We
therefore find that the evidence fails to support the Re-
spondent’s 8(b)(4) and 8(b)(3) contentions concerning
the Union’s nonhandbilling activities.
But even if it were possible to construe the Union’s
picketing and other nonhandbilling activity as having an
unlawful objective, we still would find no basis for con-
cluding that the July 9 handbilling also had such an ob-
jective. There is no contention, and no evidence, that the
handbillers wore “no subcontracting” T-shirts or pins, or
that their message was anything other than organiza-
tional. Although picketing took place while the handbill-
ing was in progress, this was a considerable distance
away from the porte-cochere and the Respondent offered
no specific evidence as to the pickets’ attire or statements
made in connection with the picketing.14 There is good
reason to doubt that the Union really was attempting (in
part through the July 9 handbilling) to cause the Respon-
dent to abrogate its contract with Ark or to cease doing
business with Ark: had the Union succeeded, the Ark
employees who engaged in the handbilling would have
put themselves out of work. In the absence of any other
information tending to establish such an unlikely objec-
tive on the part of the handbillers, we are unwilling to
infer one.
We therefore find, for all the foregoing reasons, that
the evidence offered by the Respondent was insufficient
14 One of the handbillers testified that the picket signs bore the same
area-standards message as the handbills.
NEW YORK NEW YORK HOTEL & CASINO 765
to establish its defenses and was properly excluded by
the judge.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, New
York New York Hotel, LLC, d/b/a New York New York
Hotel and Casino, Las Vegas, Nevada, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 2(c).
“(c) Reimburse these employees, with interest, for any
legal or other expenses which any of them may have in-
curred while defending themselves against the trespass
citations prior to the point when the Respondent shall
have notified the Las Vegas city attorney of its desire to
withdraw the citations.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

CHAIRMAN HURTGEN, concurring.
The principal issue in this case is whether off-duty
employees of Ark Las Vegas Restaurant Corporation had
a protected right to engage in area standards handbilling
on the property of the Respondent, New York New York
Hotel and Casino. I agree with my colleagues that the
employees were entitled to distribute handbills in the
porte-cochere area in front of the hotel.1 Like my col-
leagues, I reject the Respondent’s contention that the
handbilling was unlawful under Section 8(b)(4)(B) and
was therefore unprotected. I reach that conclusion, how-
ever, for somewhat different reasons.
The handbilling occurred concurrently with picketing.
Contrary to my colleagues, I conclude that the picketing
may well have been unlawful. An object thereof may
well have been to require that New York New York
cease doing business with Ark. Some pickets wore t-
shirts and pins which bore the legend “no subcontract-
ing.” Inasmuch as New York New York contracted out
the restaurant functions to Ark, it is reasonable to infer
that the legend referred to this relationship. Thus, it
would appear that an object of the picketing was to pres-
sure New York New York to cease doing business with
Ark. However, even if the picketing had this objective,
that would condemn the picketing under Section
8(b)(4)(B), but would not condemn the handbilling. See

1 For reasons set forth in my separate opinion in New York New
York Hotel & Casino, 334 NLRB No. 89 (2001), I agree with my col-
leagues that the Respondent unlawfully prohibited the handbilling in
front of the porte-cochere and find it unnecessary to rely on Southern
Service, 300 NLRB 1154 (1990), enfd. 954 F.2d 700 (11th Cir. 1992),
or Gayfers Department Store, 324 NLRB 1246 (1997), in reaching that
result.
Edward J. DeBartolo Corp. v. Florida Gulf Coast Build-
ing Trades Council, 485 U.S. 568 (1988). I agree that
the picketing and the handbilling were separate, so that
any illegality of the picketing would not taint the hand-
billing.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United State Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT prohibit employees who work within
our hotel/casino complex, including those employed by
Ark Las Vegas Restaurants, Inc., from distributing union
handbills to customers on the sidewalk in front of the
porte-cochere entry doors.
WE WILL NOT in any like or related manner, interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you in Section 7 of the Act.
WE WILL remove from our files and records, includ-
ing security incident reports, any reference to the fact
that three employees of Ark Las Vegas Restaurants, Inc.,
conducted handbilling on July 9, 1997, at the porte-
cochere entrance, and/or that we invoked Nevada tres-
pass law against these employees, and WE WILL notify
each employee, in writing, that this has been done and
that we will not use either fact against them in the future.
WE WILL inform the Las Vegas city attorney in writ-
ing that we want to withdraw the trespass citations we
caused to be issued against these employees on July 9,
1997.
WE WILL reimburse these employees, with interest,
for any legal or other expenses which any of them may
have incurred while defending themselves against the
trespass
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 766
citations prior to the point when we notify the Las Vegas
city attorney that we want to withdraw the citations.
NEW YORK NEW YORK HOTEL, LLC,
D/B/A NEW YORK NEW YORK HOTEL
AND CASINO

Scott B. Feldman, Esq., for the General Counsel.
Gary C. Moss and Celeste M. Wasielewski, Esqs. (Pantaleo,
Lipkin & Moss, P.C.), of Las Vegas, Nevada, for the Re-
spondent.
Kevin Kline, Representative, of Las Vegas, Nevada, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge. On
July 9, 1997,1 agents of the Respondent2 prohibited three off-
duty employees of Ark Las Vegas Restaurant Corporation
(Ark), which operates restaurants within the Respondent’s ho-
tel/casino complex, from distributing union handbills to the
Respondent’s customers on the private sidewalk in front of its
main entrance, the “porte-cochere,” located on the Respon-
dent’s private property. This triggered an unfair labor practice
prosecution brought in the name of the General Counsel of the
National Labor Relations Board alleging that when the Re-
spondent prohibited the handbilling, it violated Section 8(a)(1)
of the National Labor Relations Act. I heard the case in trial in
Las Vegas, Nevada, on February 11, 1998, following which
counsel for the General Counsel and counsel for the Respon-
dent submitted helpful posttrial briefs, which I have studied.3
The procedural background helps to isolate what is and is not
in issue in the case: On July 11, the Union4 filed an initial

1 All dates below are in 1997, unless I say otherwise.
2 The Respondent is the limited liability company, New York New
York Hotel, LLC, that owns and operates the New York New York
Hotel and Casino in Las Vegas, Nevada.
3 I grant the Respondent’s unopposed motion to correct the trial
transcript, filed separately from its brief, which I receive into evidence
as ALJ Exh. 1. I deny the Respondent’s separate motion (received as
ALJ Exh. 2) to strike a portion of the General Counsel’s brief making a
factual claim said by the Respondent to be grounded in a misinterpreta-
tion of the record. (However, I find that the record does not preponder-
antly support the General Counsel’s claim of fact, and, in any case, the
claimed fact, even if true, would not materially affect my analysis.)
Finally, the Respondent requests on brief (pp. 38–39), that I order a
reopening of the record to permit the Respondent to introduce evidence
that I barred during the trial. This was evidence proffered in support of
a defense, raised for the first time during the trial, that the handbillers’
activities were unprotected because they were allegedly part and parcel
of a surrounding campaign by the Union which, although nominally
aimed at organizing Ark’s employees, independently violated either
Sec. 8(b)(4) or Sec. 8(b)(3), or both sections. I deny the Respondent’s
request to reopen for substantially the same reasons I stated after hear-
ing the Respondent’s offer-of-proof during the trial. And see Rule 403,
Fed.R.Evid.
4 As depicted in the undisputed pleadings, the Union is a joint en-
tity, Local Joint Executive Board of Las Vegas, apparently participated
in by two local unions, Culinary Workers Union, Local 226, and Bar-
charge against the Respondent and Ark as “joint employers,”
alleging that they, through a common agent, committed a vari-
ety of 8(a)(1) violations in response to the July 9 handbilling,
including by “prohibiting” the handbilling. The Union first
amended this charge on August 29, notably by deleting the
claim that the Respondent and Ark are joint employers and by
now naming only the Respondent as the charged party. On
September 8, the Union further trimmed the outstanding charge
by alleging simply that the Respondent had unlawfully prohib-
ited the July 9 handbilling. On September 10, embracing the
charge as ultimately amended, the Regional Director for Region
28 issued an amended complaint alleging that the Respondent
violated Section 8(a)(1) when its agents “denied employees
access to its property to distribute union literature.” Moreover,
implicitly acknowledging that the “employees” in question
were not employed by the Respondent, but by Ark, a separate
paragraph in the complaint seems to suggest that, due to a sup-
posed “symbiotic relationship” between the Respondent and
Ark, the three handbillers were tantamount to employees of the
Respondent, i.e., they were “invest[ed] with essentially the
same rights and privileges as employees of the Respondent in
the particular circumstances of the instant case.”5
By its answer and otherwise, the Respondent has admitted
that it is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act,6 that the Union is a labor
organization within the meaning of Section 2(5) of the Act, and
that it prohibited the July 9 handbilling on its premises. How-
ever, the Respondent denied any “symbiotic relationship” with
Ark, and further denied that Ark’s employees are “invested
with essentially the same rights and privileges” its own em-
ployees may enjoy. The Respondent also averred two affirma-
tive defenses in its answer: (1) The July 9 handbillers “did not
and do not have any type of employment relationship with Re-
spondent, and . . . had no right of access to Respondent’s pri-
vate property to distribute literature[.]” (2) The handbillers “had
reasonable alternative means of . . . communicating with . . .
customers and guests of Respondent[.]”
As is implicit in these pleadings, the parties disagree cen-
trally about whether the off-duty Ark employees enjoyed a
presumptive statutory right of access to the Respondent’s prop-
erty for purposes of distributing the handbills in question,

tenders Union, Local 165, each affiliated with Hotel Employees and
Restaurant Employees International Union, AFL–CIO.
5 The paragraph in question (par. 2(e)) reads in full as follows:
At all material times, Respondent and ARK Las Vegas Restau-
rant Corporation have shared common premises and facilities,
have provided services for each other, have held themselves out
to the public as a single-integrated business enterprise, and oth-
erwise enjoyed a symbiotic relationship with one another, thereby
investing the employees of Ark Las Vegas Restaurant Corpora-
tion with essentially the same rights and privileges as employees
of the Respondent in the particular circumstances of the instant
case.
6 Relatedly, the pleadings establish, and I find, that New York New
York Hotel and Casino received gross revenues exceeding $500,000 in
the first 6 months of its operations (starting on or about January 3,
1997), that this was a representative period, and that in the same period
it purchased and received more than $50,000-worth of goods and mate-
rials directly from points outside Nevada.
NEW YORK NEW YORK HOTEL & CASINO 767
which related to the Union’s campaign to organize Ark’s em-
ployees. The General Counsel contends that the Ark employees
enjoyed the same presumptive rights of access to nonwork ar-
eas of their worksite during nonwork times that the Supreme
Court declared in Republic Aviation Corp. v. NLRB, 324 U.S.
793 (1945), were available to employees of the owner of the
worksite. The Respondent, invoking NLRB v. Babcock & Wil-
cox Co., 351 U.S. 105 (1956), and Lechmere, Inc. v. NLRB, 502
U.S. 527 (1992), argues that the handbillers, being “nonem-
ployees” of the Respondent, enjoyed no presumptive “rights” of
access whatsoever for purposes of distributing the union hand-
bills. However, a further question divides the parties even if it
were found that the Republic Aviation rule properly applies to
the handbillers’ activities: Is the porte-cochere a “nonwork”
area? The Respondent says it is; the General Counsel says it
isn’t.
Based on the further findings and the reasoning set forth be-
low, I judge that Republic Aviation declares the rule applicable
to the handbillers’ activities, and that the porte-cochere is, for
these purposes at least, a nonwork area—more precisely a
“nonselling area open to guests and the public.” Accordingly, I
find ultimately that the Respondent’s prohibition of the hand-
billing violated Section 8(a)(1). In arriving at that result, how-
ever, I will find it unnecessary to visit the question whether the
Respondent and Ark “enjoyed a symbiotic relationship with
one another”; much less will I decide whether such a business
symbiosis, if it existed, would require a finding that the em-
ployees of Ark have been “invest[ed] . . . with essentially the
same rights and privileges as employees of the Respondent.”
I. FINDINGS7
A. The General Setting
The New York New York Hotel and Casino (NY-NY) is a
recent addition to the Las Vegas Strip, having opened in Janu-
ary 1997. NY-NY is a “theme” complex built on the desert
floor to resemble, from some perspectives, the lower Manhattan
skyline—from the Chrysler Building to the Statue of Liberty,
but with a roller coaster imported from Coney Island weaving
through this architectural array. Inside the complex, according
to the Respondent’s advertisements, “this themed hotel and
full-service casino re-creates the ambiance and excitement of
the Big Apple. . . bring[ing] to life the charm of Greenwich
Village and the excitement of a bustling Times Square[,]” and
“puts gamers right in the middle of all the action.” Indeed, even
“the carpet paths in the casino carries [sic] the design of an
authentic New York street, complete with curbs and crosswalks
that guide the visitor to the . . . gaming areas.”
NY-NY sits at one corner of the intersection of two main
public thoroughfares, Las Vegas Boulevard (the Strip) and
Tropicana Avenue. Its main or “front” entrance, which the Re-
spondent prefers to call the “porte-cochere,” features a wide
bank of automatic swinging glass doors (9 sets of doors in all)
each framed in polished brass, through which customers enter
immediately into the casino. The entry doors face out to the

7 Unless I note otherwise, all findings are based on credible and un-
disputed testimony or documents of record, which include videotapes
of the porte-cochere area described below.
Strip, but are set back at least 100 feet from it, separated first by
a public sidewalk adjoining the Strip, next by hedgerows mark-
ing the perimeter of the private property, next by six private
traffic lanes, and next by an 18-foot-wide private sidewalk
immediately in front of the entry doors. Customers in cars,
taxis, and shuttle vans must follow a privately maintained
roadway from a public street exit to arrive at the porte-cochere,
where passengers and their luggage are discharged and col-
lected, and where valet parking services are available. Pedes-
trian customers may likewise arrive at the porte-cochere by
following private sidewalks from the public sidewalks adjoin-
ing the main thoroughfares.
The porte-cochere “area” referred to below is defined
primarily by the impressive canopy that covers the main entry.
The canopy, a large rectangular form with a smaller rectangular
tab protruding from it, extends about 100 feet from the building
at its outermost edge, and spans a roughly equal width, cover-
ing a total area of about 10,000 square feet. It shelters not only
the private sidewalk in front of the main entry doors, but also
the six private traffic lanes adjacent to the sidewalk. The three
lanes farthest from the entry doors are reserved for temporary
parking by customers who use the valet parking service; the
three lanes closest to the entry are for vehicles that stop briefly
to discharge or pick up passengers; two are for taxis and shuttle
vans and one is for private cars.
NY-NY employs car valets, baggage-handlers, and uni-
formed doormen/cab-hailers (two doormen per shift), all of
whom who spend substantially all of their worktime in the
porte-cochere area. Some other NY-NY employees, such as
maintenance workers and security personnel, work or appear at
regular intervals in the porte-cochere area as part of their roving
duties. Still other NY-NY employees, too varied in classifica-
tion to capture briefly, may find ad hoc business reasons to visit
or perform tasks in the porte-cochere area.
In keeping with its overall promise of big-city fun and ex-
citement, NY-NY advertises that it “serves up tempting cuisine
. . . with an array of restaurants . . . [e]ach . . . [p]roviding [a]
variety of different fares[.]” In fact, the Respondent does not
own or operate these restaurants; rather, it leases space to inde-
pendent restaurant management businesses such as Ark, which
itself operates at least two main restaurants in the complex
“America” and “Gallaghers,” plus six or seven small, fast food
outlets arranged together in an area called “Village Streets,” a
food court setting apparently designed to evoke the experience
of dining in Greenwich Village. Ark also is responsible for
preparing and furnishing room-service meals to the Respon-
dent’s hotel guests.
All employees working within Ark’s restaurants are em-
ployed exclusively by Ark, but according to the terms of Ark’s
employee handbook they are also subject to NY-NY’s own
“policies” respecting such things as “[e]mployee entrances,
parking, drug testing, name tags [and] conduct at the hotel
while off and on duty.” NY-NY permits, even encourages, off-
duty, employees of Ark to visit and patronize the casino and the
restaurants in the complex and to use routes open to the public,
including through the porte-cochere, to enter or exit from the
complex. Indeed, it appears that NY-NY (and Ark, in turn)
imposes only two restrictions on the visitation rights of off-duty
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 768
Ark workers—that they not wear their work uniforms, and that
they not patronize the bars. 8
Shortly before opening NY-NY in January 1997, the Re-
spondent recognized the Union as the exclusive collective-
bargaining representative of any of its employees working in
certain “culinary classifications,” and it later entered into a
labor agreement with the Union purporting to cover those clas-
sifications—an agreement which, by its terms, was due to run
for only two months (from April 1 through May 31, 1997), but
which the parties were apparently still treating as “in effect”
when this case was tried in February 1998.9 However, inspec-
tion of the union contract suggests that the recognition—
indeed, the contract itself—may have been essentially prospec-
tive and conditional in nature. This is because, so far as this
record shows, NY-NY did not employ any culinary employees
when the union contract was signed, nor at the time of the July
9 handbilling. Rather, as the union contract itself acknowl-
edges, only “lessees” of NY-NY (such as Ark) and their own
employees were currently involved in any food service opera-
tions, and “[c]onsequently, the contract relating to food service
functions is not applicable[,]” but would be subject to “acti-
vat[ion]” in the ”future” event that NY-NY might itself engage
in “food service operations.”10
It is clear in any case that the union contract was not in-
tended to cover Ark’s employees, who have been unrepresented
at all material times. Indeed, the record shows that at the time
of the July 9 handbilling, described next, the Union was trying
to organize Ark’s employees and to obtain recognition from
Ark as their exclusive representative.
B. The July 9 Handbilling; the Respondent’s Reaction
Sometime in the late morning of July 9, three off-duty em-
ployees of Ark—Edward Ramis, John Ensign, and Ron Iso-
mura—appeared in the porte-cochere area and positioned them-
selves about 10 feet apart on the 18-foot-wide sidewalk separat-
ing the private traffic lanes from the doorways into the casino.
There, they passed out identical handbills to customers as they

8 For findings in this paragraph I rely in part on the testimony of
Dennis Shipley, the Respondent’s vice president for human resources,
and in part on Ark’s employee handbook. The handbook states perti-
nently that it is the “explicit policy of New York-New York” that “[a]ll
Ark Las Vegas employees are welcome to use the gambling facilities,
when off duty[,]” but that “[t]he only restriction is that you must not be
in a Company uniform of any kind[,]” and that, “[a]ll bars, unfortu-
nately, are off limits to all employees at all times.”
9 Testimony of the Union’s staff director, Donald Taylor.
10 To elaborate, the recognition clause of the union contract purports
to grant recognition to the Union as the exclusive representative of the
employees of the Respondent “working in those job classifications
listed in Exhibit 1[.]” The “Exhibit 1” incorporated into the contract
(appearing at pp. 37a–b) lists over 40 separate job classifications—
described in the heading to the exhibit as “culinary classifications.”
However, according to “ Side Letter # 5” (p. 43) of the contract,
The Union understands and agrees that the Employer has leased
its entire food operations to third parties (“Lessees”). Conse-
quently the food classifications in Appendix A [sic] and the con-
tract relating to food service functions is [sic] not applicable. If,
in the future, the Employer engages in food service operations
other than those described in the paragraph below, food-related
classifications and language will be activated.
walked across the sidewalk to the entry doors. The handbills,
authored by the Union, protested as “Unfair” that “Ark Restau-
rants at the New York-New York have no contracts with the
Culinary & Bartenders Unions.” The handbills contained a
lengthy chart purporting to “illustrate the difference between
the wages and benefits of Ark workers versus those of Union-
ized workers up and down the Las Vegas Strip.” The handbills
also contained a request—that the customer-recipients “[t]ell
Ark’s managers at America, Village Streets (food court), Gon-
zales y Gonzales, and Gallaghers that Ark should recognize and
negotiate a fair contract with its workers.” They further advised
as follows:

We are not asking the employees of any employer to stop
their work. We have no dispute with the New York-New
York Hotel & Casino, only Ark Restaurants Corporation,
which runs some of the food and beverage operations inside
the New York-New York.

Each of the three employee-handbillers was dressed in street
clothes, not Ark work uniforms, and each wore a union button
on his shirt identifying him as a “Committee Leader, Union
Local 226.” In some cases, customers taking the handbills
would pause to ask questions, and the handbillers would reply;
however, the frequency of such exchanges is uncertain on this
record, and, crediting Ramis, no such exchange lasted more
than 2 minutes. The record otherwise shows—and the Respon-
dent’s agents concede—that the handbilling activities did not
impede customer entry or egress, and caused no disruption to
the work being performed by the car valets, baggagehandlers,
and doormen who were then working in and around the porte-
cochere area.
Shortly before noon, apparently not long after the handbill-
ing began, Karen Lightell, a security supervisor for the Re-
spondent, approached the handbillers and was soon joined by
Dennis Shipley, the Respondent’s vice president of human
resources. In the ensuing conversations, Lightell told the hand-
billers that they were trespassing on the Respondent’s private
property and weren’t allowed to solicit or distribute literature
there.11 At some point, the handbillers produced and displayed
their Ark employee identification cards to Lightell and/or Ship-
ley. Eventually, when the handbillers refused to leave voluntar-
ily, Lightell read to them from a copy of the Nevada Trespass
Statute (apparently a formality required before the police could
be called to evict and cite the claimed trespassers under the
trespass statute), and when they still refused to leave, Shipley
authorized another security agent to call-in the “Metro” police.
At about noon, the Metro police arrived, escorted the three
handbillers from the premises, and issued each of them written
citations for trespass, noting on the citations that they had “re-
main[ed] on the property after warning not to trespass by a
representative of the owner, to wit, Karen Lightell[.]”
11 On demeanoral grounds, and in the light of surrounding circum-
stances unnecessary to detail, I discredit Ramis insofar as he claims that
either Lightell or Shipley told him that he could be fired for his hand-
billing activity.
NEW YORK NEW YORK HOTEL & CASINO 769
II. ANALYSES, SUPPLEMENTAL FINDINGS,
AND CONCLUSIONS
A. General Principles
Under established interpretations of Section 7’s “mutual aid
or protection” clause, employees have a presumptive statutory
right (i.e., a right that exists absent “special circumstances”) to
use their workplace as a forum for circulating petitions or dis-
tributing literature, so long as they do it in nonwork areas and
during nonwork times (Republic Aviation Corp. v. NLRB, 324
U.S. 793 (1945)), and so long as the subject of their activity can
fairly be said to “bear a relationship to their interests as em-
ployees.” Eastex, Inc. v. NLRB, 437 U.S. 556, 567 (1978). By
contrast, “nonemployee union representatives” seeking to ad-
vance the interests of employees enjoy no right grounded in the
Act to enter or use an employer’s property for such purposes,
except in relatively rare cases where it can be demonstrated that
there exist no adequate, alternative ways for the union to com-
municate with its target audience. NLRB v. Babcock & Wilcox
Co. 351 U.S. 105 (1956); Lechmere, Inc. v. NLRB, 502 U.S.
527 (1992).
We are instructed by Hudgens v. NLRB, 424 U.S. 507, at
521–522 (1976), that there is a “reason . . . of substance” for
treating employees differently from nonemployee union repre-
sentatives for these purposes, namely, that “employees [are]
already rightfully on the employer’s property,” and therefore,
only the “employer’s management interests rather than his
property interests [are] involved,” whereas nonemployees have
no such preexisting status as “invitees,” and, therefore, the
employer’s property interests are most directly implicated when
a nonemployee union representative seeks access to the prop-
erty. Id. at 521–522. Accordingly, an employer who maintains
and enforces in a nondiscriminatory way a nondiscriminatory
policy banning “outsiders” from access will not normally
commit a 8(a)(1) violation when it enforces that policy as to
nonemployee union agents, no matter what their particular pur-
pose may be for seeking access. Ibid.
B. Which Standard Applies?
The purpose of the handbilling activity conducted by the
three Ark employees—to protest Ark’s failure to recognize and
negotiate with the Union as their representative, and to enlist
customer support to help secure recognition and a union con-
tract from Ark—clearly bore a direct and intimate “relationship
to their interests as employees,” and thus clearly qualified as
protected activity under the liberal standard expressed in
Eastex, supra. However, as previously noted, the parties’ dis-
pute is grounded in large part on a disagreement about the
handbillers’ rights to use NY-NY property as a site for conduct-
ing their otherwise protected activity. The Respondent, relying
exclusively on the fact that Ark employees have no “employ-
ment relationship with NYNY,” argues that this case is gov-
erned by Babcock & Wilcox principles. To the contrary, the
General Counsel argues, in substance, that the fact that the
employee-handbillers were not employed by the Respondent
does not defeat the applicability of the Republic Aviation rule to
their activity, because here the handbillers were not “strangers”
to the property, but were employed “regularly and exclusively”
on the property, and were thus “invitees” to the property.
The General Counsel’s argument is well supported by at
least one recent Board decision affirming that employees of a
subcontractor of a property owner who work regularly or exclu-
sively on the owner’s premises enjoy rights under Republic
Aviation to use the nonwork areas of the premises to distribute
union literature to customers entering or leaving the premises.
See Gayfers Dept. Store, 324 NLRB 1246 (1997). The General
Counsel’s argument draws further nourishment from the case
on which Gayfers principally relies, Southern Services, 300
NLRB 1154 (1990), enfd. 954 F2d 700 (11th Cir. 1992) (Coca
Cola Company violated Sec. 8(a)(1) by prohibiting employee of
janitorial subcontractor from distributing union organizing
literature to fellow janitors employed on Coca Cola’s prem-
ises).
The Respondent argues that the cited cases are distinguish-
able on their facts from this one. I find that the factual differ-
ences cited by the Respondent are too marginal and inconse-
quential to justify a different legal analysis herein. The Re-
spondent further argues in any case that “the Board’s legal
analysis in Gayfers, like Southern Services, is fatally flawed,”
because it relied on “extremely attenuated reasoning” to justify
application of the Republic Aviation rule to cases involving the
access rights of employees to premises where they work but
which are owned by someone other than their own employer.
Such arguments are better directed elsewhere. I must follow the
Board’s precedents unless they are reversed by the Supreme
Court. Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984); see also
Iowa Beef Packers, 144 NLRB 615, 616 (1963).
Accordingly, relying on Gayfers and Southern Services, I
find that the Babcock & Wilcox/Lechmere rule applicable to
“nonemployee union representatives” does not govern the
analysis herein; rather, I find, the employees of Ark enjoyed
Republic Aviation rights of access to the Respondent’s nonwork
areas to conduct the handbilling in question.12 Thus, it remains
only to determine whether the area they selected to conduct
their handbilling, the porte-cochere, is properly regarded as a
“nonwork” area.
C. Is the Porte-Cochere a Nonwork Area?
The Respondent’s claim that the porte-cochere area is a
“work area” stresses that the area is the regular daily worksite

12 Moreover, it does not matter to an analysis of their statutory ac-
cess rights that the employee-handbillers were “off-duty” when they
conducted their handbilling. That an employer may not ban off-duty
employees from using nonwork areas to conduct protected solicitations
or distributions is explicit in several Board decisions involving ho-
tel/casino operations. See Dunes Hotel & Country Club, 284 NLRB
871, 877–878 (1987); Harvey’s Wagon Wheel, 271 NLRB 306, 316
(1984); John Ascuaga’s Nugget, 230 NLRB 275 (1977). (For cases
applying the same reasoning in nonretail operations, see, e.g., Nashville
Plastic Products, 313 NLRB 462, 463 (1993), and Southern California
Gas Co., 321 NLRB 551, 557 (1996).) Indeed, the fact that the employ-
ees herein conducted their handbilling at times when they were not
scheduled to work at the premises is an especially trivial consideration
in determining their Sec. 7 rights of access where NY-NY has clearly
invited them to visit and patronize the casino and most of its facilities
during their off-duty hours.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 770
for car valets, doormen, and baggage-handlers employed by
NY-NY, and the occasional situs for work done by NY-NY’s
roving maintenance and cleaning crews and a variety of other
NY-NY employees who may have ad hoc reasons to go into the
area. The General Counsel, relying on authorities discussed
below, urges that these facts don’t matter to the analysis.
Rather, according to the General Counsel, what counts ulti-
mately is that the porte-cochere area is a “public” area, and that
it is physically and functionally distinct from the “selling floor”
of the particular kind of “retail” business that we confront in
this case, i.e., the casino floor itself. Again, I find that the Gen-
eral Counsel’s arguments are well supported by the caselaw,
and that the Respondent’s contentions don’t fit at all well
within that body of law.
As all parties recognize, the Board has held that “gambling
establishments” (no matter that they may include associated
amenities such as hotels, restaurants and bars, or entertainments
such as lounge acts, stage shows, or even roller coasters) “are
analogous to a retail store for the purpose of considering the
lawfulness of no-solicitation and no-distribution rules.” Dunes
Hotel & Country Club (supra at fn. 11), 284 NLRB at 876–878,
citing Barney’s Club, 227 NLRB 414 (1976). Thus, in Dunes
Hotel, the Board found, applying the “selling/nonselling area”
distinctions set forth in its “seminal” decision in Marshall Field
& Co., 98 NLRB 88, 92 (1952), and its later decision in
McBride’s of Naylor Road, 229 NLRB 795 (1977), that the
casino-employer’s ban on employee solicitation and distribu-
tion “in work areas or areas open to guests” was unlawfully
broad insofar as it purported to bar such activity in “nonselling
areas open to the guests or the public.” 284 NLRB at 878.
It appears that the Board has not yet addressed the precise
question whether the area outside the front entrance to a casino,
such as the porte-cochere area herein, should be regarded as a
“nonselling area open to the guests or the public” within the
meaning of the Dunes Hotel holding, and thus a protected zone
for employee solicitations and distributions. However, on the
face of things, such an area would clearly seem to fall within
the quoted category, despite the fact that the area may also be a
work situs for some of the Respondent’s employees.13 Thus,
the fact that some employees perform work in the porte-cochere
area would appear to be legally subordinate to the controlling
fact that the area is nevertheless a “nonselling area open to the
guests or the public.”14 In addition, I note that the handbilling

13 Although the Board has not itself addressed the precise question, I
note that two different administrative law judges have used reasoning in
cases now pending before the Board on exceptions that is essentially
similar to that I have just applied to reach the same conclusion I have
just reached—that the area outside the entrance to a casino is a “non-
selling area open to the guests or the public,” and that employees’ statu-
tory rights were violated when the casino-employers, invoking no-
solicitation/distribution rules, took various steps to prevent them from
distributing union handbills to customers outside these entrances—and
this despite the fact that in each of those cases, as herein, those areas
were likewise work sites for car valets, doormen and others employed
by the casino employers. See Reno Hilton, JD (SF) 09-98 (Administra-
tive Law Judge Jay R. Pollack), and Santa Fe Hotel & Casino, JD (SF)-
64-96 (Administrative Law Judge Burton Litvack).
14 Indeed, in United States Steel Corp., 223 NLRB 1246, 1247
(1976), the Board took a skeptical view of the nonretail employer’s ban
on July 9 had no adverse impact on either the customers’ entry
or egress or on the ability of the Respondent’s employees to
perform their customary work there. Finally, contrary to the
Respondent’s arguments, I find that handbilling of customers in
the porte-cochere area has no inherent tendency to interfere
significantly with either the customers’ ingress or egress or
with the ability of car valets, doormen, baggage-handlers, or
any other employees who may perform work in the area. Ac-
cordingly, the Respondent has failed to demonstrate that its
legitimate “management interests” (as Hudgens v. NLRB, supra,
used that expression, distinguishing it from “property inter-
ests”) would be impaired in any significant way by permitting
employee-handbilling directed to customers in the porte-
cochere area.
In sum, consistent with the thrust of the complaint, and re-
jecting all arguments of the Respondent to the contrary, I con-
clude as a matter of law that when the Respondent prohibited
the employees of Ark from distributing union handbills to cus-
tomers in the porte-cochere area, the Respondent unlawfully
interfered with, restrained and coerced employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, and
thereby violated Section 8(a)(1). On these findings of fact and
conclusions of law and on the entire record, I issue the follow-
ing recommended:15
ORDER
The Respondent, New York New York, LLC, d/b/a New
York New York Hotel and Casino, operating in Las Vegas,
Nevada—including its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Prohibiting employees who work within the Respon-
dent’s hotel/casino complex, including those employed by Ark
Las Vegas Restaurants, Inc., from distributing union handbills
to customers on the sidewalk in front of the porte-cochere entry
doors.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Within 14 days from the date of this Order unless other-
wise specified below, take the following affirmative action
necessary to effectuate the policies of the Act.
(a) Remove from its own files and records, including secu-
rity incident reports, any reference to the fact that the em-
ployee-handbillers herein, Edward Ramis, John Ensign, and

on employee solicitations or distributions in purported “work areas”
that included any areas where “work” may be performed. Thus, the
Board adopted the administrative law judges observation that,
[the employer’s] contention that all its property is a work area is
a contention that can be asserted by every company, thus effec-
tively destroying the right of employees to distribute literature.
Some work tasks, whether it be cleaning up, maintenance, or
other incidental work, are performed at some time in almost every
area of every company.
15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
NEW YORK NEW YORK HOTEL & CASINO 771
Ron Isomura, conducted handbilling on July 9, 1997, at its
porte-cochere entrance, and/or that the Respondent invoked
Nevada trespass law against these employees, and, within 3
days thereafter, notify each employee, in writing, that this has
been done and that it will not use either fact against them in the
future.
(b) Inform the Las Vegas city attorney in writing that it
wants to withdraw the trespass citations it caused to be issued
against these employees on July 9, 1997.
(c) Reimburse these employees for any legal or other ex-
penses which any of them may have incurred while defending
themselves against the trespass citations prior to the point when
the Respondent shall have notified the Las Vegas city attorney
of its desire to withdraw the citations.
(d) Post at its Las Vegas hotel/casino facility copies of the at-
tached notice marked “Appendix.”16 Copies of the notice, on

16 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
forms provided by the Regional Director for Region 28, after
being signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees (including
employees of lessees occupying its premises) are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respon-
dent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent (or by lessees occupying its prem-
ises) at any time on or after July 9, 1997.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.