Soaring Eagle Casino and Resort, An Enterprise of the Saginaw Chippewa Indian Tribe of Michigan

National Labor Relations Board - Board Decisions

Apr 16, 2013

359 N.L.R.B. 740 (N.L.R.B. 2013)

740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 92
Soaring Eagle Casino and Resort, an Enterprise of
the Saginaw Chippewa Indian Tribe of Michi-
gan and International Union, United Automo-
bile, Aerospace and Agricultural Implement
Workers of America (UAW). Case 07–CA–
053586
April 16, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On March 26, 2012, Administrative Law Judge Mi-
chael A. Rosas issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the Act-
ing General Counsel filed an answering brief, and the
Respondent filed a reply brief. The Acting General
Counsel also filed cross-exceptions and a supporting
brief.
1

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,
2
and conclusions and
to adopt the recommended Order as modified and set
forth in full below.
3

ORDER
The National Labor Relations Board orders that the
Respondent, Soaring Eagle Casino and Resort, an Enter-

1 In addition, the Respondent filed a “Notice of Supplemental Au-
thority,” and the Acting General Counsel filed a response to that docu-
ment. In the notice, the Respondent “suggests” that the Board lacks a
quorum because the President’s recess appointments are constitutional-
ly invalid. We reject this argument. We recognize that the United
States Court of Appeals for the District of Columbia Circuit has con-
cluded that the President’s recess appointments were not valid. See
Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013). However, as
the court itself acknowledged, its decision is in conflict with at least
three other courts of appeals. See Evans v. Stephens, 387 F.3d 1220
(11th Cir. 2004), cert. denied 544 U.S. 942 (2005); U.S. v. Woodley,
751 F.2d 1008 (9th Cir. 1985); U.S. v. Allocco, 305 F.2d 704 (2d Cir.
1962). This question remains in litigation, and until such time as it is
ultimately resolved, the Board is charged to fulfill its responsibilities
under the Act.
2 In finding that the Respondent unlawfully discharged employee
Susan Lewis, the judge inadvertently mischaracterized the Respond-
ent’s burden under Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), as showing “that it took the adverse action for a legitimate
nondiscriminatory reason.” As the judge correctly stated elsewhere in
his decision, once the Acting General Counsel showed that protected
conduct was a motivating factor in Lewis’ discharge, the Respondent’s
burden was to demonstrate that it would have taken the same action
even in the absence of her protected conduct. Roure Bertrand Dupont,
Inc., 271 NLRB 443 (1984).
3 We have modified the Order and notice to conform to the viola-
tions found and to include a remedial provision regarding the tax and
social security consequences of making discriminatee Susan Lewis
whole, in accordance with our decision in Latino Express, Inc., 359
NLRB 518 (2012).
prise of the Saginaw Chippewa Indian Tribe of Michi-
gan, Mount Pleasant, Michigan, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Suspending, discharging, or otherwise discriminat-
ing against any employee for being a member of or for
supporting the International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America or any other union.
(b) Maintaining and enforcing a no-solicitation rule
that prohibits employees from (1) soliciting other em-
ployees during nonworktime to support the Union or any
other labor organization, and (2) distributing union litera-
ture or campaign paraphernalia during nonworktime in
nonwork areas.
(c) Telling employees they cannot talk to other em-
ployees about the Union in the employee hallway.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Susan Lewis full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make Susan Lewis whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against her, in the manner set forth in the remedy
section of the judge’s decision.
(c) Compensate Susan Lewis for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay
award, and file a report with the Social Security Admin-
istration allocating the backpay award to the appropriate
calendar quarters.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspension
and discharge, and within 3 days thereafter notify the
employee in writing that this has been done and that the
discharge will not be used against her in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days of the date of this Order, revise or
rescind its no-solicitation rule prohibiting employees
SOARING EAGLE CASINO & RESORT 741
from (1) soliciting other employees during nonworktime
to support the Union or any other labor organization, and
(2) distributing union literature or campaign parapherna-
lia during nonworktime in nonwork areas, and notify the
employees in writing that it has done so.
(g) Within 14 days after service by the Region, post at
its casino and hotel facility in Mt. Pleasant, Michigan,
copies of the attached notice marked “Appendix.”
4
Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 7, after being signed by the Respond-
ent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since October 1, 2010.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 7 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
APPENDIX
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose not to engage in any of these protected
activities.

WE WILL NOT suspend, discharge, or otherwise dis-
criminate against any of you for supporting the Interna-
tional Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America or any other
union.
WE WILL NOT maintain and enforce a no-solicitation
rule prohibiting employees from (1) soliciting other em-
ployees during nonworktime to support the Union or any
other labor organization, and (2) distributing union litera-
ture or campaign paraphernalia during nonworktime in
nonwork areas.
WE WILL NOT tell employees they cannot talk to other
employees about the Union in the employee hallway.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the Board’s Order, offer
Susan Lewis full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
WE WILL make Susan Lewis whole for any loss of
earnings and other benefits resulting from her suspension
and discharge, less any net interim earnings, plus interest
compounded daily.
WE WILL compensate Susan Lewis for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file a report with the Social Security
Administration allocating the backpay award to the ap-
propriate calendar quarters.
WE WILL, within 14 days of the Board’s Order, remove
from our files any reference to the unlawful suspension
and discharge of Susan Lewis, and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that the suspension and discharge will not be
used against her in any way.
WE WILL, within 14 days of the Board’s Order, revise
or rescind our no-solicitation rule prohibiting employees
from (1) soliciting other employees during nonworktime
to support the Union or any other labor organization, and
(2) distributing union literature or campaign parapherna-
lia during nonworktime in nonwork areas, and notify our
employees in writing that we have done so.

SOARING EAGLE CASINO AND RESORT, AN
ENTERPRISE OF THE SAGINAW CHIPPEWA
INDIAN TRIBE OF MICHIGAN

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

742
Mary Beth Foy, for the General Counsel.
Sean J. Reed, Esq., of Mount Pleasant, Michigan, and William
A. Szotkowski, of St. Paul, Minnesota, for the Respondent.
Blair K. Simmons, Esq., of Detroit, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Mount Pleasant, Michigan, on December 14–15,
2011. The International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW) (the
Union) filed the initial charge on April 1, 2011,1 and the Gen-
eral Counsel issued the amended complaint on October 12,
2011. The amended complaint alleges that the Soaring Eagle
Casino and Resort, an Enterprise of the Saginaw Chippewa
Indian Tribe of Michigan (the Tribe) violated: Section 8(a)(1)
of the National Labor Relations Act (the Act) by maintaining
an unlawful no-solicitation policy in its handbook and prohibit-
ing employees from talking about the Union in the employee
hallway; and (2) Section 8(a)(3) and (1) of the Act by suspend-
ing and then discharging an employee for engaging in union
solicitation and distribution activities in the employee hallway
and public bathroom in the casino. The Tribe denies the allega-
tions and contends that Federal laws, including the Act, do not
apply to a tribal Government’s exercise of sovereign authority
absent express congressional authorization.
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act. The Tribe,
a federally recognized Indian Tribe with an office and facility
in Mount Pleasant, Michigan, is engaged in the operation of a
hotel and gaming enterprise. During 2010, the Tribe, in con-
ducting the business operations, derived gross revenues in ex-
cess of $1 million and purchased and received at its Mount
Pleasant facility goods and materials valued in excess of
$50,000 directly from points outside the State of Michigan.
Notwithstanding such economic activity within the stream of
interstate commerce, the Tribe contends that its unique status as
a federally recognized Indian tribe immunizes it from the juris-
dictional reach of Section 2(2), (6), and (7) of the Act. This
question is, indeed, determinative of the outcome of this case.
II. THE SAGINAW CHIPPEWA TRIBE
A. The 1855 and 1864 Treaties
The Saginaw Chippewa Tribe (the Tribe), a Federally recog-
nized Indian Tribe,2 is a successor to the 1855 Treaty with the
Chippewa of Saginaw, Swan Creek, and Black River (the pre-
decessor Tribe), 11 Stat. 633, and the 1864 Treaty with the
predecessor Tribe, 14 Stat. 637.3

1 All dates are in 2011, unless otherwise indicated.
2 75 Fed.Reg. 60,810 (2010).
3 R. Exh. 2–3.
The 1855 Treaty, as amended, affirmed4 the rights of the
predecessor Tribe to the exclusive use, ownership, occupancy,
and self-governance of a permanent homeland. It dealt with
land allocation, support payment of moneys by the United
States Government to the Tribe, and provision of an interpreter
for the Indians. The 1864 Treaty provided for the Tribe to re-
linquish lands reserved to the Tribe under the 1855 Treaty, but
allocated land in Isabella County—the Isabella Reservation—
for “the exclusive use and occupancy” of the predecessor Tribe
as a sovereign nation. It specifically mentioned monetary sup-
port by the Federal Government for agricultural operations, a
school, and a blacksmith shop on the reservation. The 1855
and 1864 Treaties also included the rights to exclude non-
Indians from living on the reservation.5
Subsequently, the predecessor Tribe invoked the treaties in
order to exclude non-Indians from their lands. In one instance,
the predecessor Tribe succeeded in having a Federal agent in-
volved in land fraud removed from their reservation. In another
instance, the Tribe succeeded in having the awards of reserva-
tion land to a missionary revoked and the missionary excluded
from their land.6 More recently, on August 31, 2011, the Tribe
enacted its most recent law excluding non-Indians from the
Isabella Reservation.7 Neither treaty, however, even remotely
addresses the future application of Federal regulatory laws to
the predecessor Tribe’s business operations involving non-
Indian employees.8
B. The Isabella Reservation
The reservation created by the Treaties of 1855 and 1864 is
located primarily within Isabella County, with a portion in Are-
nac County, Michigan. The Tribe’s casino is located entirely
within the geographical boundaries of the Isabella Reservation.
The city of Mount Pleasant, with its own police, fire, and public
safety departments, is located entirely within the geographic
boundaries of the reservation. With respect to activities within
the reservation, Mount Pleasant governmental entities have

4 The General Counsel did not dispute the opinion of the Tribe’s ex-
pert that Indian treaties affirm, rather than create, longstanding sover-
eign rights. (Tr. 70.)
5 Previous testimony by the Tribe’s expert, John Bowes, was accept-
ed as fact regarding the predecessor Tribe’s right to exclude. (R. Exh. 4
at 2.) In addition, there are several general references to an 1864
“Statement of the Indians” as reinforcing that right. (Jt. Exh. 1.)
6 This historical rendition by Bowes was not disputed. (Tr. 88–94.)
7 Ordinance. 3, “Code of Conduct and Power to Exclude Non-
Members. (R. Exh. 6; Tr. 88–94.)
8 The testimony of Bowes and the Tribe’s other expert in Native
American history, Randolph Valentine, was not disputed. Besides
providing legal conclusions that the Act does not apply to any of the
Tribe’s operations, they credibly explained the predecessor Tribe’s
understanding as to how the treaties related to their sovereign rights.
(Tr. 11–46, 67–94; R. Exhs. 1–5.) Valentine’s opinion that any ambi-
guities under treaties with Native American tribes were historically
construed in their favor was also not disputed. (Tr. 17–18.) Neither
expert provided an explanation, however, as to how the right to exclude
non-Indians from reservations lands related to the application of Feder-
al regulatory laws, more than 150 years later, to a tribe’s business oper-
ation that serves thousands of nontribal members each year.
SOARING EAGLE CASINO & RESORT 743
jurisdiction only over nonmembers of the Tribe. They have no
jurisdiction at the casino.9
The Tribe has approximately 3046 members. Its tribal coun-
cil is comprised of 12 members elected by the tribal member-
ship and headed by an elected tribal chief. The tribal council
enacts laws applicable to tribal members and the Tribe’s vari-
ous enterprises. The council also governs and manages eco-
nomic development. It holds regular meetings open to tribal
members and special sessions to handle contracts, invoices,
grants, and vote on proposed motions and resolutions.10
On August 20, 1993, in accordance with the Indian Gaming
Regulatory Act, a compact between the State of Michigan and
the Tribe, approved by the U.S. Government, authorized the
Tribe to conduct a gaming enterprise on the reservation. The
compact does not give Michigan regulatory authority over the
Tribe’s gaming enterprise, except for inspection of class III
devices and records. The Tribe has its own regulatory body,
the Tribal Gaming Commission (the Commission). The Com-
mission consists of a six-member board. They are hired by the
tribal council, must be tribal members, and serve 4-year terms.
The tribal council enacted a gaming code on October 5, 1993,
which is enforced by the Commission. The gaming code estab-
lishes internal controls and licensing criteria for casino employ-
ees who handle tribal funds. The Commission reports to the
tribal council on a monthly basis. It reports formal violations,
and gaming licenses that have been issued or removed. No
housekeeping employees are issued licenses. On November 16,
1993, the Tribe created Soaring Eagle Gaming as a Govern-
mental entity to operate and manage the casino, as established
by Charter of Soaring Eagle Gaming. The tribal council hires
all management-level employees for the casino, including the
chief executive officer. The casino’s controller, an employee of
the Tribe, submits the casino’s budget to the tribal council for
approval. The tribal council approves all contracts with the
casino’s vendors. The casino department managers and direc-
tors regularly report to the tribal council. The Tribe considers
all casino employees to be Governmental employees of the
Tribe.11
The Tribe’s primary source of revenue is generated by its
gaming enterprise, with about 90 percent of tribal income de-
rived from the casino operation. The tribal council decides how
to distribute gaming revenue to support the Tribe’s programs
and services. The Tribe has 37 Governmental departments and
159 programs. These departments include behavioral health,
community and economic development, education, fire, the
gaming commission, health administration, judicial, police,
utilities, and the casino. About 90 percent of the departments
and programs are funded by revenue generated by the casino.
The remainder comes from grants and contracts. The Tribe
operates a police department, tribal court system, tribal admin-
istration building, and fire department. The Tribe also operates
programs that provide health services, behavioral health ser-

9 GC Exh. 2–3.
10 GC Exhs. 2 at 3–4.
11 Id. at 4.
vices, and social services to tribal members and members of
other tribes.12
C. The Casino
The Tribe’s casino consists of two buildings located on 121
acres. One building houses bingo and slot machines; the other
building includes casino activities, restaurants, bars, entertain-
ment facilities, and a hotel. The casino, open 24 hours a day, 7
days a week, is open to nonmembers of the Tribe. The casino
has gross annual revenues of approximately $250 million and
draws approximately 20,000 customers per year. Approximate-
ly 3000 employees work at the casino; approximately 221, or
7.4 percent, of those employees are members of the Tribe. Of
these tribal members, about 65, or 29 percent, are in manage-
ment positions. The casino’s current chief executive officer,
Andy Asselin, is not a member of the Tribe. The casino adver-
tises throughout Michigan, including the Metropolitan Detroit
area, via billboards, newspapers, radio, and television. The
casino was economically impacted by the opening of three
casinos in Detroit, which is located in southeast Michigan.13
The relevant Tribe officials and casino supervisors include:
Dennis Kequom—the Tribal chief; Andy Asselin—the casino’s
chief executive officer; Ben Perez—senior manager, casino
housekeeping; Greg Falsetta—the Tribe’s director of human
resources; Lisa Morris—human resources assistant manager;
Carla O'Brien–human resources manager; Greg Lott—
supervisor/manager; Dorothy Munro—team leader; Robert
Rood—team leader; and Julia St. John—team leader.14
The relevant portions of the casino include the employee
hallways, an employee breakroom and the three casino floor
bathrooms. The employee hallway is limited to employee ac-
cess and casino patrons are prohibited from entering that area.
There are employee-entrance doors leading from the employee
parking lot into the employee hallway area. The employee
hallway area consists of two hallways: a “main employee hall-
way” and a “side employee hallway.” The main employee
hallway consists of three timeclocks; an employee breakroom,
which is a nonworking area; an entrance to the food and bever-
age service area; and a security stand leading to entry doors out
to the main casino. The side employee hallway consists of two
timeclocks; employee bathrooms; employee locker rooms; a
preshift meeting room; and security, surveillance, maintenance,
and housekeeping offices. Employee activities take place on
occasion in the employee side hallway area such as “employee
appreciation day” during which employees congregate, play
games, and eat food. The most recent employee appreciation
days occurred in the employee hallway area in or about October
2009 and October 2011.15

12 Id. at 4.
13 Id. at 4–5.
14 The Tribe concedes that all of these individuals served as its su-
pervisors and agents within the meaning of Sec. 2(11) and (13) of the
Act, respectively, if the Act is found to apply to the Tribe and the Board
determined to have jurisdiction over it.
15 GC Exh. 19, secs. 30, 34–41.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

744
D. Rules and Regulations
The casino’s employee rules are contained in the “Soaring
Eagle Casino & Resort Associate Handbook.” On October 13,
2006, the Tribe promulgated and implemented its no-
solicitation policy by formal action of the Tribal Council appli-
cable to Soaring Eagle Casino and Resort (SECR). This no-
solicitation policy is contained at section 5.3.16 The Tribe’s no-
solicitation policy states the following:

1. Item number 4 under “DEFINITIONS” includes
“any place where any employees perform job duties for
Soaring Eagle” as a “working area.”
2. Item number 6 under “DEFINITIONS” includes
“parking lots and roadways” as “Soaring Eagle premises.”
3. Item number 2 under “PROHIBITED CONDUCT”
prohibits employees “from soliciting in any work area.”
4. Item number 3 under “PROHIBITED CONDUCT”
prohibits employees “from posting notices, photographs or
other written materials on bulletin boards or any other
Soaring Eagle premises.”
5. Paragraph one under “ENFORCEMENT AND
DISCIPLINE” requires that employees “shall notify” Re-
spondent of any form of solicitation that is occurring or
has occurred at SECR.
6. Paragraph two under “ENFORCEMENT AND
DISCIPLINE” states that “Any person violating this poli-
cy will be subject to disciplinary action up to, and includ-
ing, termination.”

On October 24, 2007, after the filing of the petition in Case
07–RC–023147, the Tribal Council enacted Ordinance 28, the
Tribal Government Labor Ordinance, which prohibited em-
ployees from forming or joining labor organizations for pur-
poses of collective bargaining or mutual aid. On September 17,
2008, the Tribal Council repealed Ordinance 28.17
III. THE HISTORY BETWEEN THE TRIBE AND THE UNION
On November 20, 2007, the Regional Director for Region 7
affirmed a hearing officer’s rulings and issued a Direction of
Election for bargaining unit members represented by Local 486,
IBT. The Tribe stipulated to the appropriateness of the peti-
tioned-for unit, but asserted that the petition should be dis-
missed for lack of jurisdiction. The Tribe argued that the con-
trolling law on whether the Board can assert jurisdiction over a
casino on Indian land, San Manuel Indian Bingo & Casino, 341
NLRB 1055 (2004), affd. 475 F.3d 1306 (D.C. Cir. 2007), was
wrongly decided. Applying the analysis set forth in San Ma-
nuel, the Regional Director found that the Board had jurisdic-
tion over the Tribe. He further concluded that “[t]he Casino is
not an exercise of self-governance or a purely intramural mat-
ter. The application of the Act will not abrogate the general
right to the exclusive use, ownership and occupancy of land
reserved under the Tribe’s treaties with the United States. The
language and legislative history of the Act does not establish
that Congress intended to exclude Indians’ commercial enter-
prises from the Board’s jurisdiction. Finally, the [Tribe] has

16 GC Exh. 4.
17 Resolution 08–148. (GC Exh. 18.)
not raised any other meritorious jurisdictional defenses.” On
December 19, 2007, the Board denied the Tribe’s Request for
Review of the Regional Director’s Decision and Direction of
Election on the ground that it raised no substantial issues war-
ranting review. The Board also denied the Tribe’s motion to
stay the election.18
On November 28, 2007, the International Union, Security,
Police and Fire Professionals of America filed a petition to hold
a representative election on behalf of the casino’s security de-
partment. On January 17, 2008, the Regional Director issued a
Decision and Direction for Election. On February 13, 2008, the
Regional Director for Region 7 approved the SPFPA’s request
to withdraw the petition and canceled the election. As a result,
the Board’s Associate Executive Secretary informed the Tribe
that the issues in its request for review were moot and would
not be forwarded to the Board for consideration.19
In a letter to Tribal Chief Fred Cantu, dated July 30, 2009,
Union Secretary-Treasurer Elizabeth Bunn requested a meeting
to discuss the interest of several employees in organizing a
bargaining unit of the Union.20 Chief Cantu did not respond
and, on March 10, 2010, Bunn followed up with a similar re-
quest to his successor, Tribal Chief Dennis Kequom. Bunn
asserted that the Tribe’s management had “initiated an anti-
union campaign” ever since the Union reached out to Chief
Cantu.21
IV. SUSAN LEWIS
Susan Lewis was employed by the Tribe as a housekeeper in
the casino’s housekeeping department. She was initially hired
on or about July 13, 1998. Lewis voluntarily resigned on or
about December 10, 2002, but was rehired by the Tribe on
about January 26, 2005. Throughout her employment by the
Tribe, Lewis worked the second shift from 3 to 11 p.m.
Lewis’ performance evaluation for the period of May 6,
2005, to October 30, 2010, indicates that she either met or ex-
ceeded performance standards with respect to her job responsi-
bilities, customer service, communication and teamwork, and
productivity. With respect to compliance with policies and
procedures, Lewis also exceeded performance standards as to
two of that category’s three criteria. The remaining criteria—
“Understands and adheres to Associate Handbook policies and
procedures within departmental operating guidelines”—was
rated at below performance standards. Her overall rating was
3.4, which fell near the midrange of her performance ratings
from the previous 5 years (2.9 to 3.7).22
On September 29, 2009, Lewis engaged in union solicitation.
The following day, Lott and Munro issued a notice to Lewis
informing her that such solicitation in the women’s restroom,
rather than the breakroom, violated the Respondent’s no-
solicitation policy. She was warned of the potential disciplinary

18 Soaring Eagle Casino & Resort v. Local 286, Teamsters, Case 07–
RC–023147, Nov. 20, 2007. (GC Exh. 2.)
19 Soaring Eagle Casino & Resort v. International Union, Security,
Police and Fire Professionals of America (SPFPA), Case 07–RC–
023163, January 17, 2008. (GC Exh. 3.)
20 GC Exh. 15.
21 GC Exh. 16.
22 GC Exh. 17.
SOARING EAGLE CASINO & RESORT 745
consequences, including termination, if such activities contin-
ued.23
On August 25, 2010, Lewis again engaged in union solicita-
tion activities. Five days later, on August 30, Ben Perez, the
casino housekeeping department’s senior manager, issued her a
notice for engaging in union solicitation activities in violation
of the Tribe’s no-solicitation policy.24
In early October 2010, Perez told Lewis that she could not
engage in solicitation activities, including talking to other em-
ployees about unions, in the employee hallway. The directive
did not, however, deter Lewis. On October 4, 2010, just before
clocking-out near the end of her shift at 11 p.m., management
officials observed Lewis on a surveillance camera in the side
employee hallway placing a blue wrist band on another house-
keeper. She was also handing out the wrist bands, which stat-
ed, “BAND TOGETHER 2010,” to other housekeepers. A few
weeks later, on October 23, Perez issued a notice to Lewis sus-
pending her for engaging in solicitation activities on October 4
in violation of the Tribe’s no-solicitation policy.25
On November 7, 2010, Lewis entered bathroom B from her
workstation in section 2 of the casino and engaged in conversa-
tion for about 7 minutes with another housekeeper assigned to
work at the same time in bathroom B on the casino floor. Dur-
ing that conversation, Lewis solicited on behalf of the Union.
On November 15, 2010, Perez issued her a notice discharging
her for engaging in union solicitation activities in violation of
the Tribe’s no-solicitation policy.26
Except for Susan Lewis, no other employees of the Tribe
have been disciplined for violating its no-solicitation policy.
Legal Analysis
I. JURISDICTION
The Tribe operates a casino on the Isabella Reservation in
Isabella County, Michigan. It is undisputed that the 1855 and
1864 Treaties affirmed the Tribe’s rights to the ownership, use
and occupancy of land within the Isabella Reservation. The
complaint alleges, however, that the Act applies to the Tribe’s
casino operations because it is not an essential Government
operation of the Tribe. The Tribe disagrees, contending that the
exclusive use rights in the treaties must be interpreted as apply-
ing to all operations of the Isabella Reservation, including the
casino.
The Supreme Court has long held that statutes of “general
application” apply to the conduct and operations of individual
Indians and their property interests. Federal Power Commis-
sion v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960). The
Board has found that the Act is a statute of general applicabil-
ity. Sac & Fox Industries, 307 NLRB 241 (1992). In San Ma-
nuel, the Board adopted the Tuscarora rule and asserted juris-
diction over a gaming facility owned and operated by a Tribal
Government located on tribal land. San Manuel Indian Bingo
& Casino (San Manuel I), 341 NLRB 1055 (2004), enfd. 475
F.3d 1306 (D.C. Cir. 2007). Neither the Act nor Federal Indian

23 Department Record of Conversation. (GC Exh. 10.)
24 Fair Action Notice. (GC Exh. 12.)
25 Fair Action Notice. (GC Exh. 13.)
26 Fair Action Notice. (GC Exh. 14.)
policy requires that the Board decline jurisdiction over com-
mercial enterprises operated by Indian tribes on tribal reserva-
tions. Id.
Prior to San Manuel, the Board determined whether it had ju-
risdiction over Indian tribal entities based on the location of the
tribal enterprise. Indians and Indian Tribal Governments on
reservation lands were generally free from State or Federal
intervention, unless Congress provided for the contrary. Fort
Apache Timber Co., 290 NLRB 436 (1988). The Board could,
however, assert jurisdiction where a tribal business was not
located on the reservation. See Sac & Fox Industries, 307
NLRB 241; Yukon Kuskokwim Health Corp., 328 NLRB 761
(1999), vacated on other grounds 234 F.3d 1186 (10th Cir.
2002).
In San Manuel, the Board departed from this on/off-
reservation dichotomy, concluding that it would consider
whether it had jurisdiction on a case-by-case basis. The Board
adopted the Tuscarora doctrine, and held that statutes of gen-
eral application apply to the operations of Indian tribes and
their enterprises unless: (1) the law touches “exclusive rights of
self-government in purely intramural matters”; (2) the applica-
tion of the law would abrogate treaty rights; or (3) there is
“proof” in the statutory language or legislative history that
Congress did not intend the law to apply to Indian tribes. San
Manuel I, 341 NLRB at 1059 (citing Donovan v. Coeur d’Alene
Tribal Farm, 751 F.2d 1113 (9th Cir. 1985)). The Board will
also analyze whether policy considerations militate in favor of
or against the assertion of its discretionary jurisdiction. Id. at
1062.
A. Applicability of the Act to Indian Tribes
The Tribe contends that since neither the Act nor its legisla-
tive history mention Indian tribes, it should not be applied to
them. It asserts that Federal regulatory schemes are inapplicable
to tribes exercising their sovereign authority unless Congress
expressly authorized its application. See Dobbs v. Anthem
Blue Cross & Blue Shield, 600 F.3d 1275, 1283 (10th Cir.
2010); NLRB v. Pueblo of San Juan, 276 F.3d 1186, 1196 (10th
Cir. 2002). In this instance, the Tribe insists that application of
the Act to regulate its casino operations infringes on its inherent
right to regulate economic activity.
This forum must adhere to applicable case law which neither
the Board nor Supreme Court have reversed. See Iowa Beef
Packers, Inc., 144 NLRB 615, 616 (1963). In San Manuel I,
the Board concluded that the Act applies to Indian tribes’ oper-
ations of on-reservation casinos. The Board ruled that the Act
is a statute of general applicability, and thus may be applied to
Indians and their enterprises provided that none of the Couer
d’Alene exceptions apply. 341 NLRB at 1063. Accordingly,
the allegations in the instant complaint must be analyzed by the
framework set forth in San Manuel.
B. San Manuel Analysis
1. Self-governance
The General Counsel contends that Federal regulation of the
casino does not interfere with the Tribe’s right of self-
governance of intramural matters on two grounds: (1) the casi-
no operation is a commercial venture; and (2) its regulation
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

746
does not interfere with internal tribal activity. The Tribe argues
that its treaties with the United States affirm its right of self-
government, which includes the right to operate a casino on its
reservation without interference by the Federal Government.
Governance of intramural matters generally involves subject
matters such as tribal membership, domestic relations, and
inheritance rules. San Manuel I, 341 NLRB at 1063 (citing
Coeur d’Alene, 751 F.2d at 1116). Commercial enterprises that
blur the distinction between the Tribal Government and private
corporations are not activities that are normally associated with
self-governance. San Manuel v. NLRB (San Manuel II), 475
F.3d1306, 1314 (D.C. Cir. 2007). See also Reich v. Mashan-
tucket Sand & Gravel, 95 F.3d 174, 181 (2d Cir. 1996) (tribal
construction company that worked exclusively on reservation
projects was not exempt from OSHA regulations because con-
struction activities were of a commercial, and not Governmen-
tal, character). The Act’s jurisdiction over on-reservation Indi-
an gaming facilities does not implicate the tribe’s self-
governance over intramural matters because “operation of the
casino is not an exercise of self-governance.” San Manuel I,
341 NLRB at 1063 (citing Florida Paraplegic Assn. v. Mic-
cosukee Tribe of Indians of Florida, 166 F.3d 1126, 1129 (11th
Cir. 1999) (“tribe-run business enterprises acting in interstate
commerce do not fall under the ‘self-governance’ exception to
the rule that general statutes apply to Indian tribes”).
Operating a casino on tribal land is not an exercise of self-
governance of a purely intramural matter. Like the casino in
San Manuel, the Tribe’s casino is a commercial venture that
generates income for the Tribe. The casino serves predomi-
nantly nontribal customers, competes with nontribal casinos,
and employs mostly nontribal members. Moreover, the Tribe’s
operation of the casino, a commercial enterprise, is not vital to
its ability to govern itself. San Manuel I, 341 NLRB at 1061.
Furthermore, the operation of a casino is not a purely intramu-
ral matter, as it involves hiring nontribal employees, attracting
nontribal customers, and competing with nontribal businesses.
Lastly, commercial entities on Indian reservations are subject to
various Federal laws. See San Manuel , supra; Menominee
Tribal Enterprises v. Solis, 601 F.3d 669, 674 (7th Cir. 2010).
It is clear, therefore, that applying the Act to the Tribe’s ca-
sino operations would not interfere with its rights of self-
governance of intramural matters.
2. Abrogation of treaty rights
The General Counsel acknowledges that the Tribe’s treaties
with the United States give it a general right of exclusion and
possession, but contends that this general right of exclusion is
insufficient to bar application of the Act. The Tribe disagrees,
insisting that application of the Act to its casino operations
would prevent it from exercising its power to remove unwanted
intruders, including Federal regulators, from the Isabella Reser-
vation.
General treaty language devoting land to a tribe’s exclusive
use is insufficient to preclude application of Federal law. See
Menominee Tribal Enterprises v. Solis, 601 F.3d at 674; DOL
v. OSHRC, 935 F.2d 182, 184 (9th Cir. 1991) (treaty language
prohibiting “any white person” from residing on tribe’s land
was a general right of exclusion and insufficient to bar applica-
tion of OSHA to tribe’s sawmill); U.S. v. Farris, 624 F.2d 890
(9th Cir. 1980), superseded on other grounds by statute, as not-
ed by U.S. v. E.C. Investments, Inc., 77 F.3d 327, 330 (9th Cir.
1996) (“general treaty language such as that devoting land to a
tribe’s ‘exclusive use’ is not sufficient”). But see Donovan v.
Navajo Products Industries, 692 F.2d 709 (10th Cir. 1982)
(tribe whose treaty excluded all persons from reservation lands,
but allowed Government officers, agents, and employees to
enter as expressly authorized, was exempt from OSHA). Thus,
a general right to exclude non-Indians from tribal land, without
more, is insufficient to bar the application of Federal laws to
commercial entities on Indian reservations. DOL v. OSHRC,
935 F.2d at 186.
The treaties affirm the Tribe’s right to exclude nontribal
members from the Isabella Reservation. The 1864 Treaty “sets
apart [tribal land] for the exclusive use, ownership and occu-
pancy” for the Tribe’s members. The Tribe’s expert witnesses
elucidated that, during negotiations over the 1864 Treaty, the
predecessor Tribe sought to prevent “white settlers” from living
on its reservation. Its expert witness opined, therefore, that the
Saginaw Tribe’s power to promulgate and enforce a no-
solicitation policy and right to exclude ordinance emanated
from its sovereign rights affirmed in the 1855 and 1864 Trea-
ties. The Tribe contends that it has exercised these treaty rights
by: (1) developing policies that place conditions upon entry for
nonmembers and (2) passing an ordinance that codifies the
right to remove employees and others from its lands should
they violate conditions that the Tribe places upon entry.
These historical facts and current practices, however, do not
demonstrate that the treaties granted the Tribe anything more
than a general right of exclusion and possession. See DOL v.
OSHRC, 935 F.2d 182 (treaty language stating that the tribe
had exclusive use of reservation lands and that any non-Indian
would not be permitted to reside upon the land without permis-
sion of the tribe gave the Tribe a general right of exclusion).
Nevertheless, the Tribe contends that its power to enact a no-
solicitation policy and right to exclude ordinance emanates
from its treaty rights to exclude; thus, application of the Act
would infringe on its treaty rights. As previously explained,
however, the text of the treaty provides nothing more than a
general right of exclusion, which is insufficient to bar applica-
tion of federal law. It is, therefore, insufficient to bar applica-
tion of the Act. Notwithstanding the claims of the Tribe’s ex-
pert witnesses, treaties cannot be “expanded beyond their clear
terms to remedy a claimed injustice or to achieve the asserted
understanding of the parties.” Choctaw Nation of Indians v.
U.S., 318 U.S. 423, 432 (1942). If one were to construe a gen-
eral right of exclusion otherwise, the enforcement of nearly all
generally applicable Federal laws would be nullified when
applied to any Tribe which has signed a treaty containing an
exclusion provision. See DOL, 935 F.2d at 186.
Therefore, application of the Act does not abrogate the
Tribe’s treaty right to exclude nontribal members from its land.
3. Proof of Congressional intent
There is no indication in either the language of the Act or its
legislative history that Congress intended to exclude Indians or
their commercial enterprises from the Act’s jurisdiction. San
SOARING EAGLE CASINO & RESORT 747
Manuel I, 341 NLRB at 1063. Thus, based on the precedent set
forth in San Manuel, there is no legislative bar toward applica-
tion of the Act to Indian tribes or their commercial enterprises.
4. Policy considerations
The last factor in the jurisdictional analysis is determining
whether policy considerations favor application of the Board’s
discretionary jurisdiction. San Manuel I, supra at 1062. The
General Counsel asserts that the operation of a casino on Indian
land is not a traditional tribal function. The Tribe, on the other
hand, contends that operating a casino is paramount to its trea-
ty-based rights of self-governance and inherent authority to
engage in economic activity and fund essential Government
functions.
The Board must balance its interest in effectuating the poli-
cies of the Act with the need to accommodate the unique status
of Indians in our society. Yukon Kuskokwim Health Corp., 341
NLRB 1075 (2004). When an Indian tribe is fulfilling a tradi-
tionally tribal or Government function that is unique to its sta-
tus, the Board’s interest in asserting jurisdiction is lower than
when the tribe is acting in a typically commercial matter. San
Manuel I, supra at 1062–1063.
The casino operation is a commercial enterprise that com-
petes with nontribal casinos. It is not a traditional tribal or Gov-
ernment function. Unlike in Yukon Kuskokwim, where the em-
ployer fulfilled a unique Governmental function by providing
free health care to Native Americans as dictated by the Indian
Health Care Improvement Act, the Tribe is not providing a
similar tribal or Government function. Rather, it operates a
business, one that competes with nontribal businesses and ser-
vices nontribal customers. Thus, the “special attributes” of the
Tribe’s sovereignty are not implicated. San Manuel I, supra at
1062. Under the circumstances, the policy considerations
weigh in favor of the Board asserting its discretionary jurisdic-
tion over the Tribe.
Based on the foregoing, I conclude that the Tribe is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. MERITS
A. The No-Solicitation Policy
The complaint alleges that the Tribe violated Section 8(a)(1)
by maintaining and enforcing an overly broad and unlawful no-
solicitation policy. Unlike its vigorous contesting of the juris-
dictional issues, however, the Tribe did not refute the testimony
and other evidence regarding the merits of the unfair labor
practice charges.
Employees have a right to solicit on company property dur-
ing their nonworking time, absent special circumstances.
Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962). Solicitation
rules prohibiting union solicitation on company property out-
side working time are an unreasonable impediment to self-
organization and, therefore, are discriminatory in the absence of
unusual circumstances. Republic Aviation, 324 U.S. 793, 803
fn. 10 (1945); Peyton Packing Co., 49, 828, 843–844 (1943),
enfd, 142 F.2d 1009 (5th Cir.), cert. denied 323 U.S. 730
(1944). See also NLRB v. Pneu Electric, Inc., 309 F.3d 843
(5th Cir. 2002) (employer generally may not issue a blanket
statement against solicitation by employees at a worksite, even
during nonworking time); Our Way, Inc., 268 NLRB 394
(1983) (rules prohibiting union solicitation or activities during
an employee's breaktimes or other nonworking periods are
overly broad and presumptively invalid because they could
reasonably be construed as prohibiting solicitation at any time).
Moreover, an employer must allow solicitation during meals,
breaks, and other nonworking time, even if the employees are
clocked in. Pneu Electric, Inc., 309 F.3d 843. Lastly, no-
solicitation policies must be uniformly enforced to retain their
validity. Publix Super Markets, 347 NLRB 1434 (2006); Funk
Mfg. Co., 301 NLRB 111 (1991).
Employers may, however, restrict employee distributions to
nonworking areas of the premises. Stoddard Quirk, supra. An
employer has a property right to “regulate and restrict employee
use of company property.” Union Carbide Corp. v. NLRB, 714
F.2d 657, 663–664 (6th Cir. 1983). See also Mid-Mountain
Foods, 332 NLRB 229 230 (2000) (no statutory right to use
television in breakroom to show a prounion video), enfd. 269
F.3d 1075 (D.C. Cir. 2001); Eaton Technologies, 322 NLRB
848, 853 (1997) (no statutory right to use an employer’s bulle-
tin board). Employers generally may restrict employee use of
company property, but may not promulgate or enforce these
restrictions in a discriminatory manner. Container Corp. of
America, 244 NLRB 318 (1979); Allied Stores Corp., 308
NLRB 184 (1992). Thus, employees have no statutory right to
use an employer’s equipment or media for Section 7 purposes,
provided the restrictions are nondiscriminatory. Register
Guard, 351 NLRB 1110 (2007). Discrimination under the Act
means drawing a distinction along Section 7 lines. Id.
The General Counsel correctly contends that the Tribe’s no-
solicitation policy, as contained in the “Definitions” and “Pro-
hibited Conduct” sections of its company rules, is facially inva-
lid and overly broad. The policy prohibits employees from
soliciting in any work area and during their working time. The
policy defines “working area” as “any place where any em-
ployees perform job duties at the Casino.” No-solicitation rules
that prohibit employee solicitation in working areas during
nonworking time, however, are presumptively invalid and un-
lawfully interfere with Section 7 rights. Stoddard-Quirk, supra
at 621. Since the Tribe’s policy simply bans solicitations in
working areas and does not distinguish between working time
and nonworking time, the rule can be read to prohibit solicita-
tions during nonworking time. It is, therefore, unlawfully
overbroad.
The General Counsel also contends that the Tribe’s no-
solicitation policy is facially invalid to the extent it restricts use
of casino property. An employer’s restriction of employee use
of company property is legal if done in a nondiscriminatory
manner. Register Guard, supra. However, the Tribe’s en-
forcement of this policy was unlawful because it was limited to
situations involving union solicitation. The Tribe concedes
that, except for Lewis, no other employees have been disci-
plined or discharged for violating its no-solicitation policy.
Thus, the Tribe promulgated a discriminatory no-solicitation
policy and applied it in a discriminatory manner in violation of
Section 8(a)(1).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

748
B. Discussion Among Employees about the Union
in the Hallway
The complaint alleges that the Tribe violated Section 8(a)(1)
when Perez, a statutory supervisor and agent, prohibited Lewis
and other employees from discussing union matters in the em-
ployee hallway. The parties stipulated that Perez informed
Lewis during October 2010 that she could not talk to other
employees about unions in the employee hallway.
Employers cannot place restrictions on employees’ rights to
discuss self-organization amongst themselves, unless the em-
ployer can demonstrate the restrictions are necessary to main-
tain production or discipline. NLRB v. Babcock & Wilcox Co.,
351 U.S. 105, 113 (1956). Oral solicitations by employees may
be prohibited only during working time. Valmont Industries v.
NLRB, 244 F.3d 454 (5th Cir. 2001). A prohibition on commu-
nications may not, however, be overly broad so that it prohibits
communications among employees during paid or unpaid non-
work periods. Thus, an employer must allow solicitations dur-
ing breaks and other nonworking time, even if the employee
remains clocked in. Id., citing Cooper Tire & Rubber Co. v.
NLRB, 957 F.2d 1245, 1249 (5th Cir. 1992). Moreover, an
employer may not ban employee solicitation in nonwork areas.
See Crowne Plaza Hotel, 352 NLRB 382 (2008). Any ambigu-
ity in a particular prohibition is construed against the employer
which formulated that prohibition. Altorfer Machinery, 332
NLRB 130, 133 (2000). See also Albertson’s Inc., 307 NLRB
787, 788 fn. 6 (1992).
The parties stipulated that the employee hallway is an em-
ployee area of the casino. It consists of multiple timeclocks, a
breakroom, entrance to the restrooms, and several employee
offices. Nonwork activities, however, take place in the hall-
way, as employees pass through it to use the bathroom, locker
room, and food service area. Since the employee hallway is a
nonworking area, employees may solicit there in their non-
working time. Stoddard-Quirk Mfg. Co., 138 NLRB 615
(1962).
Under the circumstances, the Tribe violated Section 8(a)(1)
when it prohibited employees from discussing unionization in
the employee hallway, a nonworking area.
C. Suspension/Discharge
The complaint alleges that the Tribe violated Section 8(a)(3)
and (1) by: (1) suspending Lewis on October 23 because she
solicited on behalf of the Union in the employee hallway on
October 4; and (2) and discharging her on November 15 be-
cause she solicited on behalf of the Union in the employee
hallway on October 4 and 24, and spoke with an on-duty em-
ployee about the Union in bathroom B while off-duty on No-
vember 7.
The framework for analyzing alleged violations of Section
8(a)(3) is Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under
Wright Line, the General Counsel must show, by a preponder-
ance of the evidence, that the employee's protected conduct
motivated the employer's adverse action. The prima facie case
must establish that the employee engaged in protected conduct,
the employer knew or suspected the employee engaged in such
conduct, the employer harbored animus against the protected
activity, and the employer took action because of this animus.
If the General Counsel establishes these elements, the burden of
persuasion shifts to the employer to show that it would have
taken the same adverse action even in the absence of the pro-
tected activity. NLRB v. Transportation Corp., 462 U.S. 393,
399, 403 (1983); Kamtech, Inc. v. NLRB, 314 F.3d 800, 811
(6th Cir. 2002); Manno Electric, 321 NLRB 278, 280 fn. 12
(1996), enfd. 127 F.3d 34 (5th Cir. 1997) (per curiam). To
meet this burden, “an employer cannot simply present a legiti-
mate reason for its action but must persuade by a preponder-
ance of the evidence that the same action would have taken
place even in the absence of the protected conduct.” Serrano
Painting, 332 NLRB 1363, 1366 (2000), citing Roure Bertrand
Dupont, Inc., 271 NLRB 443 (1984). If, however, the evidence
establishes that the reasons given for the employer's action are
pretextual, the employer fails by definition to show that it
would have taken the same action for those reasons, and thus
there is no need to perform the second part of the Wright Line
analysis. United Rentals, supra at 951–952 (citing Golden State
Foods Corp., 340 NLRB 382, 385 (2003); Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982)).
1. Concerted protected activity
The parties stipulated that Lewis engaged in concerted pro-
tected activity while working at the casino. Her union activities
began in 2009, when she initiated contact with the Union. She
participated in the organizing campaign by attending union
meetings, signing and distributing authorization cards, conduct-
ing local radio and newspaper interviews, and adding her pic-
ture to the organizing campaign’s website. Lewis’ activities
culminated with her attempts to rally other employees in sup-
port of the Union in October and November 2010.
2. Knowledge of the activity
Here, again, the parties stipulated that the Tribe was well
aware of Lewis’ activities in support of the Union prior to her
discharge. In March 2010, Lewis and four other employees
delivered a letter to Tribal Chief Kequom expressing their de-
sires to organize. Moreover, prior to her suspension, Tribe
supervisors issued disciplinary writeups to Lewis for engaging
in union solicitation activities. Indeed, they suspended and
ultimately discharged her because she engaged in union solici-
tation in October and November 2010.
3. Animus
Similarly, the Tribe did not offer any evidence disputing the
last element of a prima facie case. It harbored animus against
Lewis because she engaged in protected concerted activity.
Lewis’ 2009 and 2010 evaluations, issued during the height of
the organizing campaign, did not reflect a remarkable decline in
her performance ratings. However, she did receive several
disciplinary writeups for violating the Tribe’s unlawful no-
solicitation policy. Most significantly, aside from Lewis, no
other employee has ever been disciplined or discharged for
violating the Tribe’s no-solicitation policy.
4. The Company’s burden of proof
Since the General Counsel established a prima facie viola-
tion of Section 8(a)(3) and (1), the burden shifted to the Tribe
SOARING EAGLE CASINO & RESORT 749
to show that it took the adverse action for a legitimate nondis-
criminatory reason. See Wright Line, supra at 1089. Again, the
Tribe offered no evidence even remotely suggesting that it dis-
charged Lewis for any reason other than the fact that she en-
gaged in solicitation activities on behalf of the Union in Octo-
ber and November 2010.
In any event, the facts would not have supported a contention
that the Tribe was justified in disciplining Lewis because she
solicited in a working area during worktime. As previously
discussed, the employee hallway was a nonwork area. Similar-
ly, the facts also demonstrated that bathroom B was not a work
area for purposes of determining the validity of the Tribe’s no-
solicitation rule. The occurrence of work activity incidental to
an employer’s main function on part of its property does not, by
itself, allow an employer to declare its entire property to be a
“working area” for the purpose of excluding employee solicita-
tion activity. See Santa Fe Hotel, Inc., 331 NLRB 723, 729
(2000), U.S. Steel Corp., 223 NLRB 1246, 1247–1248 (1976).
Moreover, the Board has long compared casinos to retail store
floors in upholding bans on employee solicitation in areas fre-
quented by customers, while also finding unlawful similar bans
on such activity in adjacent locations, such as restrooms. Dou-
ble Eagle Hotel, 341 NLRB 112, 113 (2004). Coupled with the
previous suspension for engaging in the same type of protected
conduct, it is evident that the Tribe would not have discharged
Lewis in the absence of her role as an advocate for the Union.
Under the circumstances, the Tribe violated Section 8(a)(3)
and (1) when it suspended and subsequently discharged Lewis
for engaging in union solicitation in the employee hallway and
bathroom B.
CONCLUSIONS OF LAW
1. By promulgating a no-solicitation rule that prohibits em-
ployees from (1) soliciting other employees during nonwork-
time to support the Union or any other labor organization, and
(2) distributing union literature or campaign paraphernalia dur-
ing nonworktime in nonwork areas, the Tribe has engaged in
unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
2. By telling employees they could not talk to other employ-
ees about the Union in the employee hallway, the Tribe violated
Section 8(a)(1) of the Act.
3. By disciplining and discharging employee Susan Lewis
because she engaged in activities in support of the Union, the
Tribe violated Section 8(a)(3) and (1) of the Act.
4. The aforementioned unfair labor practices affected com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Tribe has engaged in certain unfair la-
bor practices, I shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the
policies of the Act.
The Tribe, having discriminatorily disciplined and dis-
charged an employee, must offer her reinstatement and make
her whole for any loss of earnings and other benefits. Backpay
shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010).
[Recommended Order omitted from publication.]