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July 22 — A California casino interfered with workers' labor law rights by maintaining a handbook that prohibited employees from conducting “personal business” while they were at work on the employer's premises, a National Labor Relations Board administrative law judge held ( Casino Pauma, 2016 BL 229670, NLRB ALJ, No. 21-CA-161832, 7/18/16 ).
The decision confirms that unions continue to target missteps in employment codes and handbooks and that NLRB judges are finding unfair labor practices when employer rules compromise employee rights.
ALJ Robert A. Giannasi wrote July 18 that the National Labor Relations Act give employees the right to discuss unions and engage in other protected activity during their nonwork time. Casino Pauma's rule was overbroad and unlawfully restricted employee rights, the ALJ said.
Giannasi also found the casino committed an unfair labor practice under Section 8(a)(1) of the NLRA by maintaining a rule that employees had to immediately cease any solicitation or distribution that caused an intended recipient to “experience any discomfort or nonreceptiveness whatsoever.”
Casino Pauma operates a gambling casino and restaurants on tribal land in California. Giannasi said the employer stipulated that the NLRB has already asserted jurisdiction over its operations.
UNITE HERE has filed several unfair labor practice charges against the casino, including the charge Giannasi heard.
The board found twice in 2015 that the employer violated the NLRA by interfering with union activity and maintaining unlawful rules on distributing literature and wearing union insignia (362 N.L.R.B. No. 52, 202 LRRM 2108 (2015); 363 N.L.R.B. No. 60, 205 LRRM 1591 (2015)).
Giannasi said that since mid-2015, the casino has maintained an employee handbook with a rule providing in part that: “Team members are to conduct only Casino Pauma business while at work. Team members may not conduct personal business or business for another employee during their scheduled working hours.”
The ALJ wrote that employees are generally free under the NLRA to engage in union solicitation on the employer's premises during nonworking time and that they may distribute literature in nonworking areas of an employer's facilities.
Denying employees the right to engage in protected activity “while at work” was too broad, Giannasi wrote, “because it is not properly restricted to ‘work time' and thus bans protected activity during nonwork time, such as time on lunch, breaks and before and after work.”
Giannasi also found that Casino Pauma could not lawfully require employees to halt protected solicitation or distribution for a union just because an individual was uncomfortable or not receptive.
The board held in Ryder Truck Rental, Inc., 341 N.L.R.B. 761, 175 LRRM 1179 (2004), that employees have a right to “engage in persistent union solicitation even when it annoys or disturbs the employees who are being solicited,” and Giannasi said Casino Pauma's rule violated Section 8(a)(1) of the act.
The ALJ ordered the casino to rescind the unlawful rules and issue revised handbook language to its employees.
To contact the reporter on this story: Lawrence E. Dubé in Washington at email@example.com
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Text of the ALJ decision is available at http://www.bloomberglaw.com/public/document/NLRB_ALJ_Decision_CASINO_PAUMA_No_CA161832_2016_BL_229670.
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