Silver Slipper Casino

National Labor Relations Board - Board Decisions

Jun 30, 1987

284 N.L.R.B. 871 (N.L.R.B. 1987)

DUNES HOTEL

871
M&R Investments, Inc. d/b/a Dunes Hotel and
Country Club
Summa Corporation d/b/a Frontier Hotel
Summa Corporation d/b/a Desert Inn and Country
Club
Summa Corporation d/b/a Castaways Hotel &
Casino
Summa Corporation d/b/a Silver Slipper Casino and
Local Joint Executive Board of Las Vegas Culi-
nary Workers Union, Local No. 226 and Bar-
tenders Union Local No. 165. Cases 31-CA--
12097, 31-CA-12231, 31-CA-12232, 31-CA-
12233, and 31-CA-12234
30 June 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BA13SON
On 22 July 1.983 Administrative Law Judge
James S. Jenson issued the attached decision. The
Respondents filed exceptions and a supporting
brief, and the Charging Party filed a reply brief.
The National Labor Relations Board has delegat-
ed 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 1 and to adopt the recommended Order
as modified and set forth in full below.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that
A. Respondents, M&R Investments, Inc. d/b/a
Dunes Hotel and Country Club; Summa Corpora-
tion d/b/a Frontier Hotel; Summa Corporation
d/b/a Castaways Hotel and Casino; and Summa
Corporation d/b/a Silver Slipper Casino, Las
Chairman Dotson notes that an employer may generally prohibit so-
licitation of and distribution to its employees on the "selling floor" of its
business, and of its culinary workers within the particular restaurant, bar,
or cocktail lounge which constitutes that employee's work station, Kelly-
Springfield Tire Co., 265 NLRB 511, 512 fn 12 (1982) The rules herein
are not so narrowly worded and would interfere with lawful solicitation
and distribution permitted by Sec. 7 of the Act. Accordingly, he agrees
with the judge that the rules as written are overly broad and thus unlaw-
ful.
2 The judge's recommended Order will be modified to explicitly pro-
vide that the permitted solicitation of and distribution of literature to em-
ployees must be conducted in a nondisruptive manner, consistent with the
customary use of the area.
The judge inadvertently omitted from his recommended Order a
narrow order provision enjoining the Respondents from interfering with,
restraining, and coercing employees in the exercise of their Sec. 7 rights.
We have modified it accordingly.
Vegas, Nevada, their officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Promulgating, maintaining, or enforcing a
rule prohibiting nonemployee solicitation of and
distribution of off-duty employees in nonselling
public areas of our premises, so long as such solici-
tation and distribution is conducted in a nondisrup-
five manner consistent with the customary use of
those areas, and we will rescind and annul that
rule.
(b) Promulgating, maintaining, or enforcing a
rule prohibiting off-duty employees from soliciting
other off-duty employees in nonselling public areas,
so long as such solicitation is conducted in a non-
disruptive manner consistent with the customary
use of those areas, and we will rescind and annul
that rule.
(c) Promulgating, maintaining, or enforcing a
rule prohibiting off-duty employees from distribut-
ing protected materials to other off-duty employees
in nonselling public areas, so long as such distribu-
tion is conducted in a nondisruptive manner con-
sistent with the customary use of those areas, and
we will rescind and annul that rule.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Permitting employees to engage in protected
concerted activities during nonworking time in
nonselling public areas of our premises.
(b) Permitting nonemployees to solicit off-duty
employees and distribute to off-duty employees ma-
terials lawful under the Act, in nonselling public
areas of our premises, so long as such solicitation
and distribution is conducted in a nondisruptive
manner consistent with the customary use of those
areas.
(c) Post at each of their respective facilities
copies of the attached notices marked "Appendix
A-D." 3 Copies of the notice, on forms provided by
the Regional Director for Region 31, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
If this Order is enforced by a judgment of a United States court of
appeals, the words m the notice reading "Posted by Order of the Nation-
al Labor Relations brad" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
284 NLRB No. 96
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to ensure that the notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
B. Respondent Summa Corporation d/b/a
Desert Inn and Country Club, Las Vegas, Nevada,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating, maintaining, or enforcing a
rule prohibiting nonemployee-solicitation of and
distribution of off-duty employees in nonselling
public areas of our premises so long as such solici-
tation and distribution is conducted in a nondisrup-
five manner consistent with the customary use of
those areas, and we will rescind and annul that
rule.
(b) Promulgating, maintaining, or enforcing a
rule prohibiting off-duty employees from soliciting
other off-duty employees in nonselling public areas,
so long as such solicitation is conducted in a non-
disruptive manner consistent with the customary
use of those areas, and we will rescind and annul
that rule.
(c) Promulgating, maintaining, or enforcing a
rule prohibiting off-duty employees from distribut-
ing protected materials to other off-duty employees
in nonselling public areas, so long as such distribu-
tion is conducted in a nondisruptive manner con-
sistent with the customary use of those areas, and
we will rescind and annul that rule.
(d) Promulgating and maintaining a rule requir-
ing employees to report on the protected concerted
activity of their coworkers.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Permitting employees to engage in protected
concerted activities during nonworking time in
nonselling public areas of our premises.
(b) Permitting nonemployees to solicit off-duty
employees and distribute to off-duty employees ma-
terials lawful under the Act, in nonselling public
areas of our premises, so long as such solicitation
and distribution is conducted in a nondisruptive
manner consistent with the customary use of those
areas.
(c) Rescinding immediately its rule requiring em-
ployees to report on the protected concerted activ-
ity of their coworkers.
(d) Post at its facilities copies of the attached
notice marked "Appendix E." Copies of the
notice, on forms provided by the Regional Direc-
tor for Region 31, after being signed by the Re-
spondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
4 See fn 3, above.
APPENDIX A-D
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT promulgate, maintain, or enforce
a rule prohibiting nonemployee solicitation of and
distribution to off-duty employees in nonselling
public areas of our premises, so long as such solici-
tation and distribution is conducted in a nondisrup-
tive manner consistent with the customary use of
those areas; and WE WILL rescind and annul said
rule.
WE WILL NOT promulgate, maintain, or enforce
a rule prohibiting off-duty employees from solicit-
ing other off-duty employees in nonselling public
areas, so long as such solicitation is conducted in a
nondisruptive manner consistent with the custom-
ary use of those areas; and WE WILL rescind and
annul said rule.
WE WILL NOT promulgate, maintain, or enforce
a rule prohibiting off-duty employees from distrib-
DUNES HOTEL 873
uting protected materials to other off-duty employ-
ees in nonselling public areas, so long as such dis-
tribution is conducted in a nondisruptive manner
consistent with the customary use of those areas;
and WE WILL rescind and annul the rule.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of rights guaranteed in Section 7 of the
Act.
WE WILL permit our employees to engage in
protected concerted activities during nonworking
time in nonselling public areas of our premises.
WE WILL permit nonemployees to solicit our off-
duty employees and distribute to off-duty employ-
ees materials lawful under the Act, in nonselling
public areas of our premises, so long as such solici-
tation and distribution is conducted in a nondisrup-
tive manner consistent with the customary use of
those areas.
M&R INVESTMENTS, INC. D/B/A
DUNES HOTEL AND COUNTRY CLUB
SUMMA CORPORATION D/B/A FRON-
TIER HOTEL
SUMMA CORPORATION D/B/A CAST-
AWAYS HOTEL & CASINO
SUMMA CORPORATION D/B/A SILVER
SLIPPER CASINO
APPENDIX E
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT promulgate, maintain, or enforce
a rule prohibiting nonemployee solicitation of and
distribution to off-duty employees in nonselling
public areas of our premises, so long as such solici-
tation and distribution is conducted in a nondisrup-
tive manner consistent with the customary use of
those areas; and WE WILL rescind and annul said
rule.
WE WILL NOT promulgate, maintain, or enforce
a rule prohibiting off-duty employees from solicit-
ing other off-duty employees in nonselling public
areas, so long as such solicitation is conducted in a
nondisruptive manner consistent with the custom-
ary use of those areas; and WE WILL rescind and
annul said rule.
WE WILL NOT promulgate, maintain, or enforce
a rule prohibiting off-duty employees from distrib-
uting protected materials to other off-duty employ-
ees in nonselling public areas, so long as such dis-
tribution is conducted in a nondisruptive manner
consistent with the customary use of those areas;
and WE WILL rescind and annul said rule.
WE WILL NOT promulgate and maintain a rule
requiring employees to report on the protected
concerted activity of their coworkers.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of rights guaranteed in Section 7 of the
Act.
WE WILL permit our employees to engage in
protected concerted activities during nonworking
time in nonselling public areas of our premises.
WE WILL permit nonemployees to solicit our off-
duty employees and distribute to off-duty employ-
ees materials lawful under the Act, in nonselling
public areas of our premises, so long as such solici-
tation and distribution is conducted in a nondisrup-
five manner consistent with the customary use of
those areas.
WE WILL rescind immediately our rule requiring
employees to report on the protected concerted ac-
tivity of their coworkers.
SUMMA CORPORATION D/B/A
DESERT INN AND COUNTRY CLUB
William 1 McCauley, Esq., for the General Counsel.
William F. Spalding, Esq. (Gibson, Dunn & Crutcher), of
Los Angeles, California, for the Respondent.
Richard G. McCracken, Esq. (Davis, Cowell & Bowe), of
San Francisco, California, for the Charging Union.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. These
matters were heard in Las Vegas, Nevada, on February
23, 1983. The charges in each of the cases were filed by
the Union on June 11, 1982. 1 The complaint against the
1 All dates are in 1982 unless stated otherwise.
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dunes Hotel and Country Club was issued on June 29,
and separate complaints against the other Respondents
were issued on July 22. An order consolidating all five
cases for hearing also issued on July 22. The complaints
in each case allege the promulgation and maintenance of
unlawful no-solicitation and distribution rules. The Re-
spondents contend that in view of the integrated nature
of their various operations the rules applicable to retail
businesses should be applied, thereby justifying their re-
strictions on solicitation and distribution. All parties were
afforded full opportunity to appear, to introduce evi-
dence, and to examine and cross-examine witnesses.
Briefs were filed by the General Counsel, the Respond-
ents, and the Union, and have been carefully considered.
On the entire record in the case, 2 including consider-
ation of the posthearing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
It is alleged, admitted, and found that each of the Re-
spondents is an employer engaged in commerce and in a
business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
IL THE LABOR ORGANIZATION INVOLVED
It is alleged, admitted, and found that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
III. ISSUES
1.Whether the rules prohibiting solicitation and distri-
bution of literature are overly broad and in violation of
Section 8(a)(1).
2. If so, whether a rule promulgated by the Desert Inn
had the unlawful effect of requiring its employees to
inform the employer of the union activities of other em-
ployees.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Summa Corporation operates the Respondent
Frontier Hotel, Desert Inn and Country Club, Castaways
Hotel and Casino and Silver Slipper Casino as the
Siunma Recreation Group. The Respondent Dunes Hotel
and Country Club is not affiliated with the Summa Cor-
poration. Each of the Respondents operates a casino and
one or more restaurants and bars. With the exception of
the Silver Slipper, each operates a hotel and has a gift
shop and one or more swimming pools. The Dunes,
Frontier, and Desert Inn also have shopping arcades.
With the exception of the Castaways, each offers live
showroom entertainment. In addition, the Dunes offers
convention facilities and a country club with an 18-hole
golf course. Public lounge and restroom facilities are lo-
cated in each facility, and each has other public areas
2 The Respondents' unopposed motion to correct page 41, line 20, of
the official transcript by substituting the word Dunes for Desert Inn, is
granted.
such as hallways, stairs, elevators, lobbies, sidewalks, and
parking lots. Each of the Summa facilities has nonpublic
break facilities for its employees, and the Desert Inn and
Frontier have employee cafeterias for the exclusive use
of their employees. Silver Slipper and Castaways em-
ployees eat at tables reserved for them in the public
coffee shops.
The Union has a collective-bargaining agreement with
each of the Respondents, which provides for an exclu-
sive referral system. Both union and nonunion applicants
are dispatched from the union hall. The respective em-
ployees notify the Union of those applicants hired. Rep-
resentatives of the Union then solicit the new employees
to join the Union. 3 The Joint Board represents the tradi-
tional classifications of employees found in bars, restau-
rants and hotels, but does not represent dealers or live
game operators in the casinos. The Union does not seek
to represent and unorganized employees at any of the
Respondents' establishments.
On May 14 the Frontier and Castaways, and on May
24 the Dunes and Silver Slipper posted at their respec-
tive premises a memorandum containing the following:
No Solicitation/Distribution Rule
No person who is not an employee of the (name
of Respondent) is permitted to solicit our employees
or distribute literature on our property at any time.
No employee may distribute literature in work
areas or areas open to guests or the public during
either working or nonworking time.
No employee may solicit employees during his or
their working time in any areas, or outside of work-
ing time in areas open to guests or to the public.
Working time is all times when employees are ex-
pected to be performing job duties and does not in-
clude break or lunch periods.
Violation of the above rules will result in discipli-
nary action.
The purposes of these requirements are to pre-
vent disruptions of either our guests or our employ-
ees' activities and to maintain operations at peak ef-
ficiency for the benefit of our guests.
The Desert Inn posted the same notice on May 24,
with the addition of the following paragraphs:
Every employee is expected to uphold the No
Solicitation/Distribution Rule by immediately noti-
fying his/her supervisor of violatiOns of this rule.
No evidence was presented to show that any of the
Respondents have enforced the rules.
Positions of the Parties
The General Counsel argues that the rules are overly
broad on their face and thus unlawful. The first para-
graph, he argues, "constitutes a blanket prohibition
which denies union representatives the right to solicit or
distribute literature to off-duty employees in any area of
3 Nevada is a right-to-work State.
DUNES HOTEL 875
Respondents' property at any time," and, under the
Board's holdings in cases involving retail establishments,
is overly restrictive. The second and third paragraphs, he
argues, unlawfully prohibit off-duty employees from
either distributing materials, or soliciting between them-
selves, in nonselling areas open to guests or the public,
including restaurants, coffee shops, bars, restrooms, hall-
ways, sidewalks, and parking lots. The last paragraph of
the rules posted by the Desert Inn, he argues, has the
effect of unlawfully requiring "employees to engage in
surveillance of other employees' solicitation and distribu-
tion activities, including activity which is protected by
the Act."
The Respondents argue that the casino is the center of
each of the Respondents' "universe"; that "but for the
casino, there would be no hotels or entertainment"; that
"all restaurants, bars and lounges supplement the casino
directly and are clearly integrated with it functionally."
It is contended that all the Respondents' operations, in-
cluding the casinos, restaurants, bars, and lounges are
retail in character, and "when we add to this the integra-
tion of all operations with the casino, it becomes obvious
that all public areas are selling areas, as well as work
areas where solicitation even by off-duty employees may
be entirely restricted." The Respondents contend their
position has been sustained by the Ninth Circuit Court of
Appeals and recently by Administrative Law Judge
David Heilbrun in a decision issued November 29, 1982,
in Harolds Club, Case 32-CA-4235, presently on excep-
tions to the Board.
Discussion
Paragraph 1 of the rules is a total ban on non-employ-
ee solicitation or distribution of literature to employees
on the Respondents' property at any time. The General
Counsel contends the restriction is unlawful insofar as it
extends to the bars and restaurants. The alleged unlawful
portions of paragraphs 2 and 3 prohibits solicitation and
distribution by employees during nonworking time in
areas open to guests or to the public. The rule thus re-
stricts the right of employees to solicit or distribute liter-
ature to off-duty employees in areas open to the public,
including restaurants, bars, sidewalks, parking lots, hall-
ways, etc. There is no evidence that the rules have been
enforced.
, At the outset it is noted that the Union is not engaged
in the organizing of any unorganized group of employ-
ees; that it has a collective-bargaining agreement with
each of the Respondents, whereby the Union exclusively
dispatches applicants for employment to the respective
Respondents; and that the Respondents each notify the
Union of those applicants that it has hired. Although the
record does not affirmatively establish the fact, it is pre-
sumed the Union has available to it the addresses and/or
telephone numbers of those individuals it dispatches.
Thus, it could not validly be argued—nor has it been—
that the employees are beyond alternative means of com-
munication by the Union. There is no evidence in the
record of any sign or notice anywhere in the public por-
tion of any of the Respondents' premises that in anyway
restricts 'or limits access, entrance to or use to only
guests, customers, employees, or other persons. Thus, the
public has access to the casinos, bars, cocktail lounges,
restaurants, hallways, stairs, elevators, lobbies, lounges,
restrooms, sidewalks, and parking lots.
B. Applications of Rules to Nonemployees
The General Counsel does not contend the restriction
on nonemployee solicitation and distribution is unlawful
except to the extent it applies to the bars and restaurants.
Therefore, no consideration has been given to the fact
the rule extends to other areas to which the public has
access.
The Board has concluded that gambling establish-
ments, such as those involved here, are analogous to a
retail store for the purpose of considering the lawfulness
of no-solicitation and no-distribution rules, and that an
employer can lawfully prohibit all such activity in the
gambling area, which it equates to "selling floor" areas
in retail stores. Barney's Club, 227 NLRB 414 (1976).
There are numerous cases dealing with no-solicitation
and no-distribution rules as applied to restaurants located
in retail stores. In Ameron Automotive Center, 265 NLRB
511, 512 (1982), which issued November 30, 1982, the
Board, in finding unlawfully broad a no-solicitation rule
that prohibited solicitation by nonemployees "on the
premises of this store," stated:
The Board has held such rules as applied to public
restaurants are unlawfully broad, and that union so-
licitation by nonemployees in an employer's restau-
rant, if conducted in a manner consistent with the
purpose of the restaurant, cannot be so pro-
scribed. 11 Thus, unlike the situation where nonem-
ployee union organizers seek access to "private" or
other" areas in which an employer may generally
prohibit nonemployee solicitation, here the Babcock
& Wilcox criteria need not be met, since nonem-
ployees cannot in any event lawfully be barred from
patronizing the restaurant as general members of the
public. Accordingly, Respondents' rule prohibiting
solicitation by nonemployees on the entire premises
is unlawfully broad, regardless of whether, under
Babcock & Wilcox, the Union in this case had other
available channels of communication sufficient to
enable it to reach Respondent's employees with its
message." [Emphasis added.]
11 See, e.g., Montgomery Ward & Company, Inc., 256 NLRB
800 (1981), [enfd. 692 F.2d 1115 (7th Cir. 1982)].
12 We note that an employer may generally prohibit solicitation
on its selling floor areas and solicitation of its restaurant employees
within the restaurant. See, e.g., Marshall Field & Company, 98
NLRB 88 (1952), modified on other grounds and enfd. 200 F.2d
375 (7th dr. 1952); see also Montgomery Ward & Company, supra;
Montgomery Ward & Co., Incorporated, 162 NLRB 369 (1966).
' 3 See Montgomery Ward & Company, Inc., 256 NLRB at 801.
As nonemployees can no more lawfully be barred from
bars and cocktail lounges as general members of the
public than from restaurants, I conclude that paragraph 1
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the rules is unlawful insofar as it applies to those fa-
cilities.4
C. Application of the Rules to Employees
Acknowledging that the Respondents have the author-
ity to prohibit employee solicitation and distribution in
"selling areas," the General Counsel contends the offen-
sive portions of paragraphs 2 and 3 of the rules unlawful-
ly prohibit employee solicitation and distribution at all
times, including nonworking time, in all areas open to
guests or to the public, including restaurants, bars, rest-
rooms, sidewalks, parking lots, or hallways, without dis-
tinguishing between selling and nonselling areas. Accord-
ing to the Respondents, all areas of each of their prem-
ises open to the public are dedicated to the public's enter-
tainment and relaxation, and that therefore, all public
areas are selling areas, as well as work areas, for the appli-
cation of the retail establishment rule, where solicitation
even by off-duty employees may be entirely restricted.
The General Counsel argues the Board drew a distinc-
tion between selling and nonselling areas in McBrides of
Naylor Road, 229 NLRB 795 (1977). In McBrides, the
employer rule read that "Solicitation or distribution of
printed materials will not be premitted during working
hours or during non-working hours in working areas and
in public areas." The Board states:
The Administrative Law Judge correctly cited
Board precedent as holding that an employer has
the authority to prohibit solicitation and distribution
in the selling areas of a retail store, even when em-
ployees are on their own time. 9 He erred, however,
in the application of this precedent to the rule in the
case at hand. Contrary to Administrative Law
Judge's interpretation of Board law, the Board has
not allowed the restrictions on solicitation and dis-
tribution to be extended beyond that portion of the
store which is used for selling purposes." The rule
herein does exactly that by precluding solicitation
and distribution in "working areas" and "public
areas."
9 See, e g., May Department Stores Company a Corporation,
d/b/a Famous-Barr Company, 59 NLRB 976 (1944), Marshall Field
& Company, 98 NLRB 88 (1952); 1 C. Penney Company, Inc., 193
NLRB 684 (1971).
1° Marshall Field & Company, supra at 92
He argues that the instant case is identical in that the Re-
spondents' rules bar solicitation and distribution without
distinguishing between selling and nonselling areas. The
General Counsel also relies on the Board's decision in
John Ascuaga's Nugget, 230 NLRB 275 (1977). There, the
rule prohibited solicitation "on company premises by em-
ployees after employees shift has been completed." With-
4 As the Respondent in Ameron, supra, could not in any event lawfully
prohibit nonemployees from patronizing their restaurants, the Board
found it unnecessary to provide an affirmative order granting access to
the restaurant. The order was limited "to cease and desist from maintain-
ing and enforcing their nonemployee no-solicitation rule and requiring
Respondents to recmd"
out discussion, the Board adopted the administrative law
judge's conclusion that:
Respondent has failed to show any overriding
reason for prohibiting an employee, as a customer,
soliciting another employee, also as a customer, to
support the Union. Consequently, it is concluded
that said rule is not "necessary for protection,
safety, or discipline," and is violative of Section
8(a)(1) of the Act.
To the extent the General Counsel relies on Sparks
Nugget, it is noted that it was issued about 1 month after
McBrides, and was modified in NLRB v. Silver Spur
Casino, 623 F.2d 571 (9th Cir. 1980); cert. denied 451
U.S. 906 (1981); rehearing denied 452 U.S. 931 (1982), as
will be seen hereafter.
The Respondents correctly point that the seminal case
in this area is Marshall Field & Co., 98 NLRB 88, 92
(1952), as was noted by Judge Heilbrun in Harold's Club.
In Marshall Field, the Board stated:
The Board has consistently held that employees'
non-working time, either before or after work, or
during luncheon and rest periods, may be used for
self-organizational purposes as the employees wish
without unreasonable restraint, although the time is
spent on company property. 9 When this rule was
applied to retail department stores, it was qualified
to exclude from any solicitation only that portion of
the store devoted to selling purposes. The qualifica-
tion of the general rule was considered necessary, in
the case of such stores, in order to prevent undue
interruption or disturbance of the customer-salesper-
son relationship and the consequent disruption of
store business. We do not believe, however, that so-
licitation in areas not used for selling amounts to an
undue interference with store business even though
customers may be present in such places. 10 Accord-
ingly, the Board rejects the Respondent's conten-
tions and finds, as did the Trial Examiner, that the
Respondent violated the Act by prohibiting all so-
licitation by employee and nonemployee union or-
ganizers in all nonselling areas of its store when all
employees concerned are off duty.
9 See Peyton Packing Company, Inc., 49 NLRB 828.
This conclusion is supported by the court's statement in the
May case to the effect that, "Under the Board's decision, the Com-
pany is entitled to prohibit umon solicitation on the selling floor at
all times, but it may not prohibit such solicitation off the selling
floor, by and of employees, all of whom are on nonworking time
(such as established luncheon or permitted rest periods) The term
selling floor cannot be declared to be unworkably vague, for it ob-
viously would appear to embrace those parts of the store where
sales of commodities are made to customers in general course and
to exclude those parts not so used and where customers normally
are not present for such purposes." (Emphasis supplied ) May De-
partment Store Company, supra. [May Department Stores Co, 59
NLRB 976 (1944), enfd 154 F 2d 533 (8th Cir 1945); cert. denied
329 U.S. 725 (1946).]
The Board, went on to discuss (at 92-93) the exact areas
in which a prohibition was unlawful. It concluded that
the prohibition of union solicitation by either employee
DUNES HOTEL 877
or nonemployee in aisles, corridors, elevators, escalators,
and stairways inside the store did not violate the Act be-
cause "While such areas are not devoted to selling pur-
poses, it is patent that solicitation carried on in such limit-
ed space may create traffic and safety hazards, tending to
disrupt and interfere with Respondent's business to a se-
rious degree." (Emphasis added.) The prohibition of so-
licitation in public restrooms and waiting rooms was un-
lawful because, while all of the store area was "inextrica-
bly interwoven" with the employer's business,
. . . it is an entirely incorrect assumption to con-
clude that the impact produced by union solicitation
in any portion of the store would be the same.
Indeed, of the contrary were true, the Board would
have had no reason to distinguish "selling areas"
from other public portions of department stores in
the long line of precedent herein cited." Public
waiting rooms and rest rooms in Respondent's store,
it is clear, cannot be considered to be selling space,
nor do they present the problem peculiar to aisles
and other interior store traffic channels.
Solicitation in areas where sales are being made,
it is patent, may have a direct, immediate, and detri-
mental effect upon such sales. Solicitation in aisles,
corridors, escalators, and elevators interconnecting
sales areas could directly affect the passage and
safety of customers in such areas. Solicitation in
public waiting rooms and rest rooms, however, if
subject to reasonable restrictions, could have only a
slight, if not nonexistent, effect upon public use of
such facilities and no adverse effect on sales activi-
ties. To equate the situations presented by solicita-
tion in these areas with that presented by such ac-
tivity in the remainder of the store, is therefore, to
ignore reality at the expense of employee rights to
concerted activity. Accordingly, we find no com-
pelling reason for denying off-duty employees the
right to solicit and be solicited for union member-
ship in such space. Far from converting these areas
into organizational arenas, however, we find such
solicitation permissible only insofar as it is not in-
compatible with the purposes which the areas have
been set aside for public use. The Respondent may
adopt reasonable rules to insure that solicitation is
carried on only as an incident to normal use of such
facilities.
13 See, for example, May Department Stores Company, supra;
Meier & Frank Company, Inc., supra, Goldblatt Bras, Inc., J.L.
Hudson Company, 67 NLRB 1403.
The Board also found that the ban on solicitation in the
"private street" on the employer's premises was unlaw-
ful, noting it was open to the public for pedestrian use.
The Board went on to disagree with the employer's con-
tention that prohibition of all solicitation in public restau-
rants was unlawful, concluding, however, that the em-
ployer's practice permitting employees to meet with cer-
tain restrictions was not unlawful.
Returning to Sparks Nugget, and Barney's Club, since
July 1974, both of those employers had posted no-solici-
tation rules, which were virtually identical, stating in
pertinent part that "[s]olicitation on company premises
by employees after employees['} shift has been completed
is prohibited." The rule in both cases was found to be
unlawful by the Board. In NLRB v. Silver Spur, supra,
the circuit court agreed with the Board that "the rules
promulgated by the Respondents [both Sparks Nugget
and Barney's Club] were overly broad and thus invalid."
The court stated (623 F.2d at 583):
In Barney's Club and Sparks Nugget the respond-
ent employers are engaged primarily in the direct
service of customers through their gambling, restau-
rant and bar facilities. There is no contention that
any of these facilities serve primarily as employee-
service areas. Thus, under the previously-discussed
precedents, the respondents could promulgate no-
solicitation rules which prohibited employees from
engaging in solicitation or distribution of materials
in areas open to the public even during non-work-
ing periods.
The court then concluded that the Board's order in
both cases were themselves overly broad. The Board's
orders stated that the respondents must cease and desist
from:
"maintaining any rule or regulation prohibiting its
employees from soliciting on its premises after their
shifts have been completed unless such prohibition
is demonstrably necessary to maintain production,
discipline or security."
The court stated:
Since the respondents could prohibit their employ-
ees from soliciting during nonworking hdurs in
public areas of their premises, we modify the
Board's order to read that the respondents must
cease and desist from:
maintaining any rule or regulation prohibiting its
employees from soliciting on its premises during
nonworking hours in non-public areas of its
premises, Unless such prohibition is demonstrably
necessary to maintain production, discipline or
security.
In my view, the court's finding is not dispositive of the
issue involved in the instant cases. It does not appear the
distinction between selling and nonselling areas, as here,
was involved or considered by the court.
With respect to the Respondents' reliance on Harold's
Club, again it is noted that the Board has not issued a
decision in that case, and I do not view the issue raised
there as sufficiently similar to the issue raised in these
cases to have precedential value. Nor do I view the
"button" cases cited in the Respondents' brief as appo-
site.
The Respondents contend further that in the absence
of showing that the rules have been applied or that appli-
cation is contemplated, neither of which is present here,
no violation can be found. The Board's policy in this re-
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spect is set forth in Great Atlantic & Pacific Tea Co., 162
NLRB 1182, 1184 (1967) as follows:
It is well established that the mere existence of an
unlawful no-solicitation rule makes it susceptible to
application to employees and this factor alone tends
to coerce, restrain, and interfere with their right to
engage in self-organizational activities.2
2 See, Pueblo Supermarkets Inc., 156 NLRB 654
In sum, I conclude on the basis of the Board's deci-
sions in McB rides of Naylor Road and Marshall Field, that
paragraphs two and three of the Respondents' rule are
overly broad in that they prohibit solicitation and distri-
bution during nonworking time in nonselling areas open
to guests or to the public, thus violating Section 8(a)(1)
of the Act.5
D. The Desert Inn Expectation That Employees
Report Violations of Its Unlawful Rules
The General Counsel argues the final paragraph in the
Desert Inn rules requires employees to engage in surveil-
lance of fellow employees activities protected by the
Act. I view an employer's "expectation" that an employ-
ee perform a certain act as being in the nature of either a
"request" or "order." That a request or order that an
employee report on the protected activity of fellow em-
ployees tends to interfere with, restrain, or coerce em-
ployees in the exercise of rights guaranteed in Section 7,
is so patently obvious, no recitation of authority is re-
quired.
5 Although there may be an overridmg reason for lawfully prohibiting
solicitation and distribution in areas limited to guests, none was shown
here.
V. THE REMEDY
Having found that each of the Respondents has en-
gaged in, and is engaging in, certain unfair labor prac-
tices, I shall recommend that they cease and desist there-
from and take certain affirmative action designed to ef-
fectuate the policies of the Act.
On the basis of the foregoing findings of fact and upon
the entire record, I make the following
CONCLUSIONS OF LAW
1. Respondents, and each of them, are employers en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By promulgating and maintaining a rule prohibiting
nonemployee solicitation and distribution to off-duty em-
ployees in nonselling areas, each of the Respondents has
violated Section 8(a)(1) of the Act.
4. By promulgating and maintaining a rule prohibiting
off-duty employees from soliciting other off-duty em-
ployees in nonselling public areas, each of the Respond-
ents has violated Section 8(a)(1) of the Act.
5. By promulgating and maintaining a rule prohibiting
off-duty employees from distributing protected materials
to other off-duty employees in nonselling public areas,
each of the Respondents has violated Section 8(a)(1) of
the Act.
6. By promulgating and maintaining a rule requiring
employees to report on the protected concerted activity
of their coworkers, Respondent Desert Inn has violated
Section 8(a)(1) of the Act.
7. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
[Recommended Order omitted from publication.]