San Pablo Lytton Casino

National Labor Relations Board - Board Decisions

Dec 16, 2014

361 N.L.R.B. 1350 (N.L.R.B. 2014)

1350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lytton Rancheria of California d/b/a Casino San
Pablo and UNITE HERE Local 2850. Cases 32–
CA–025585, 32–CA–025665, 32–CA–064020, and
32–CA–086359
December 16, 2014
DECISION AND ORDER REMANDING IN PART
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
On March 5, 2013, Administrative Law Judge Jay R.
Pollack issued the attached decision. The Charging Party
filed exceptions with supporting argument and the Re-
spondent filed an answering brief. In addition, the Gen-
eral Counsel filed cross-exceptions and a supporting
brief; the Respondent filed an answering brief; and the
General Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs,
and has decided to affirm the judge’s rulings, findings,1
and conclusions only to the extent consistent with this
Decision and Order.2
The Respondent operates a commercial gaming and
entertainment establishment (the Casino). The Union
represents about 160 employees, and the parties’ most
recent collective-bargaining agreement was effective
from November 2006 through November 2009. The
1 The parties have implicitly excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent did not except to the judge’s findings that it violat-
ed Sec. 8(a)(5) by: (1) refusing to bargain with the Union; (2) unilater-
ally announcing and implementing new benefits for part-time employ-
ees; (3) unilaterally refusing to provide contractual health benefits for
four unit employees; (4) unilaterally reducing the number of shifts for
four unit employees; (5) unilaterally establishing rules that prohibit
access to the Casino, including requiring union representatives to dis-
close the purpose of their meetings with employees and conditioning
access on the Union having a scheduled meeting with an employee; and
(6) refusing to provide relevant information necessary for bargaining
and grievance handling. Further, the Respondent did not except to the
judge’s findings that it violated Sec. 8(a)(1) by coercively interrogating
an employee and by telling an employee not to discuss his investigation
with other employees.
There were no exceptions to the judge’s failure to address consoli-
dated complaint pars. 6(a) and (c), 12(a), (b), and (c)(6). Accordingly,
we shall dismiss these complaint allegations. See North Hills Office
Services, 346 NLRB 1099, 1099 fn. 9 (2006).
2 We shall modify the judge’s conclusions of law and remedy and
substitute a new Order and notice to conform to our findings, and to the
Board’s decisions in J. Picini Flooring, 356 NLRB 11 (2010), and
Durham School Services, 360 NLRB 694 (2014).
complaint alleges that the Respondent committed multi-
ple Section 8(a)(1) and (5) violations. The judge found
many of the alleged violations, and we adopt those find-
ings.
However, despite making relevant findings of fact, the
judge failed to analyze several other complaint allega-
tions, including Section 8(a)(1) allegations related to the
Respondent’s employee handbook rules and Section
8(a)(5) allegations related to its denial of access to union
representatives. The General Counsel and the Charging
Party have excepted to the judge’s failure to find these
alleged violations.3 As explained more fully below, we
conclude that the Respondent violated Section 8(a)(1), as
alleged, by maintaining four of the five challenged hand-
book rules. We further conclude, based on the judge’s
findings of fact, that the Respondent violated Section
8(a)(5) by unilaterally implementing rules barring union
representatives from accessing the employee break room
and by barring Union Representative Jessica Medina
from its property indefinitely. However, we remand to
the judge for further consideration the remaining allega-
tion that the Respondent violated Section 8(a)(5) by uni-
laterally implementing a rule barring union representa-
tives from accessing areas of the Casino where employee
schedules are posted.
A. The Employee Handbook Rules
The complaint alleges, and the Respondent admits, that
it maintained the following rules in its 2008 employee
handbook from about August 2010 until May 2011,
when the employee handbook was rewritten and redis-
tributed:

(a) “Unacceptable Behavior
. . . .
Gossiping about other Team Members (including
supervisors, managers, directors, etc.).”
(b) ”Team Member Conduct and Work Rules
. . . .
The following are examples of rule violations that
may result in disciplinary action, up to and includ-
ing separation of employment:
. . . .
Insubordination or other disrespectful conduct (in-
cluding failure to cooperate fully with Security,
supervisors and managers).”
(c) ”Solicitation, Distribution and Bulletin Boards
. . . .
3 The Charging Party has excepted only to the judge’s failure to ad-
dress certain of the 8(a)(5) allegations regarding restricting the access
of the union representatives.
361 NLRB No. 148

LYTTON RANCHERIA OF CALIFORNIA 1351
Team Members may not solicit or distribute litera-
ture in the workplace at any time, for any pur-
pose.”
(d) ”Team Member Conduct and Work Rules
. . . .
The following are examples of rule violations that
may result in disciplinary action, up to and includ-
ing separation of employment:
. . . .
Making false, fraudulent or malicious statements
to or about a Team Member, a guest or San Pablo
Lytton Casino.”
(e) ”Access
. . . .
Team Members are not permitted in the back of
the house areas more than thirty (30) minutes prior
to the beginning of their shift or longer than thirty
(30) minutes following the end of their shift, ex-
cept under the following circumstances:
1. To conduct business with Human Resources;
Pre-arranged training sessions or orien-
tations;
2. With the approval of a director, manager, or
supervisor.”

The complaint further alleges that the Respondent’s mainte-
nance of each of these rules violated Section 8(a)(1).
In determining whether a work rule violates Section
8(a)(1), the appropriate inquiry is whether the rule would
reasonably tend to chill employees in the exercise of
their Section 7 rights. Lafayette Park Hotel, 326 NLRB
824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). If
the rule explicitly restricts employees’ Section 7 activity,
it is unlawful. Lutheran Heritage Village-Livonia, 343
NLRB 646, 646 (2004). Absent such an explicit re-
striction, a violation is dependent upon a showing of one
of the following: (1) employees would reasonably con-
strue the language to prohibit Section 7 activity; (2) the
rule was promulgated in response to union activity; or (3)
the rule has been applied to restrict the exercise of Sec-
tion 7 rights. Id. at 647. In undertaking this analysis, the
Board must refrain from reading particular phrases in
isolation, and it must not presume improper interference
with employee rights. MCPc, Inc., 360 NLRB 216, 222
(2014). However, ambiguous employer rules—rules that
reasonably could be read to have a coercive meaning—
are construed against the employer. Lafayette Park Ho-
tel, above, 326 NLRB at 828.
1. Rule Prohibiting Gossip
We find no merit in the General Counsel’s cross-
exception that the judge erred by failing to find that the
rule prohibiting gossiping about other team members
violated Section 8(a)(1). Applying Lutheran Heritage,
the rule does not explicitly restrict Section 7 activities.
Moreover, there is no evidence that the rule was promul-
gated in response to union activity or was applied to re-
strict the exercise of Section 7 rights. Accordingly, the
only question is whether the Respondent’s employees
would reasonably construe the rule to prohibit Section 7
activity. We find that they would not.
In Claremont Resort & Spa, 344 NLRB 832, 832
(2005), cited by the General Counsel, the Board found
that a rule prohibiting “negative conversations about as-
sociates and/or managers” violated Section 8(a)(1). The
Board found that employees would reasonably construe
the rule to prohibit them from discussing concerns about
their managers that affect working conditions, which
would tend to cause them to refrain from engaging in
protected activities. Id. The General Counsel argues that
the instant rule is unlawful because gossip is arguably a
form of negative conversation.
As explained in Hyundai America Shipping Agency,
357 NLRB 860 (2011), the rule at issue in Claremont
Resort concerned employee conversations generally,
which would implicitly include protected concerted ac-
tivity. In contrast, the Respondent’s rule here, like the
rule found lawful in Hyundai, specifically prohibits gos-
sip, which is commonly defined and reasonably under-
stood as chatty talk or rumors or reports of an intimate
nature. 357 NLRB 860, 861. See also Wilshire at Lake-
wood, 343 NLRB 141 fn. 2, 145 (2004), vacated in part
on other grounds 345 NLRB 1050 (2005), revd. on other
grounds Jochims v. NLRB, 480 F.3d 1161 (D.C. Cir.
2007) (employer did not violate Section 8(a)(1) by main-
taining a rule in its employee handbook prohibiting ru-
mors and gossip in the facility). We find that the Re-
spondent’s employees would not reasonably construe the
rule prohibiting gossiping about team members to restrict
Section 7 activity. Accordingly, the allegation is dis-
missed.4
2. Rule Prohibiting Insubordination or other
Disrespectful Conduct
We agree with the General Counsel that employees
would reasonably construe the rule prohibiting insubor-
dination or other disrespectful conduct to prohibit Sec-
tion 7 activity. In the typical workplace, where tradition-
al managerial prerogatives and supervisory hierarchies
4 Contrary to his colleagues, Chairman Pearce would find that this
rule violates Sec. 8(a)(1). He adheres to his dissenting view in Hyun-
dai, above, 862 fn. 4, that the term gossip is “imprecise, ambiguous,
and subject to different meanings, including a reasonable belief that it
would include protected activity.” Further, he finds that ambiguity is
even more readily apparent here than in Hyundai, where the prohibition
was against “harmful gossip” rather than the untethered “gossip.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1352
are maintained, employees would reasonably understand
this phrase as encompassing any form of Section 7 ac-
tivity that might be deemed insufficiently deferential to a
person in authority—in other words, as referring to
something less than actual insubordination. For exam-
ple, the act of concertedly objecting to working condi-
tions imposed by a supervisor, collectively complaining
about a supervisor’s arbitrary conduct, or jointly chal-
lenging an unlawful pay scheme—all core Section 7 ac-
tivities—would reasonably be viewed by employees as
“disrespectful” in and of themselves, regardless of their
manner and means, and thus as violating the rule. See
First Transit, Inc., 360 NLRB 619, 620–621 (2014); 2
Sisters Food Group, 357 NLRB 1816, 1817 (2011);
Claremont Resort & Spa, above at 832 and fn. 4 (finding
unlawful a rule prohibiting “negative conversations about
associates and/or managers”). There is no shortage of
Board cases where protected concerted activity was per-
ceived by managers, supervisors, and security personnel
as an affront to their authority and dealt with according-
ly. See, e.g., Hawaii Tribune-Herald, 356 NLRB 661,
680 (2011); Noble Metal Processing, Inc., 346 NLRB
795, 800 (2006).
If the prohibition here were limited to “insubordina-
tion,” which connotes defiance of a workplace superior’s
job-related directive, we would agree with our dissenting
colleague that the allegation should be dismissed.5 For
instance, in Community Hospitals of Central California
v. NLRB, 335 F.3d 1079, 1088–1089 (D.C. Cir. 2003),
denying enf. of University Medical Center, 335 NLRB
1318 (2001), the employer prohibited “[i]nsubordination,
refusing to follow directions, obey legitimate requests or
orders, or other disrespectful conduct towards a service
integrator, service coordinator, or other individual.” Af-
ter noting that the Board objected chiefly to the “other
disrespectful conduct” portion of the rule, the D.C. Cir-
cuit found that “[w]hen read in context, however, that
prohibition clearly does not apply to union organizing
activity—including ‘vigorous proselytizing’; it applies to
incivility and outright insubordination[.]” Id. at 1088.
The prohibition here is not so limited, however. Alt-
hough insubordination is characterized as a type of disre-
spectful conduct, the Respondent’s rule is not squarely
5 Copper River of Boiling Springs, LLC, 360 NLRB 459 (2014), cit-
ed by our colleague, is distinguishable on two grounds. The Board was
concerned in that case with “negative attitude” language in the rule at
issue, not its reference to “insubordination” and “lack of respect.” In
any event, the “lack of respect” portion of the rule was entirely unrelat-
ed to “insubordination” toward management. Id., at 459 fns. 2–3.
Although Chairman Pearce dissented in relevant part in Copper Riv-
er, and adheres to his position there, he agrees that the instant rule is
distinguishable.
focused on insubordinate activity as was the case in
Community Hospitals. Thus, we do not believe that em-
ployees would necessarily read the “disrespectful con-
duct” portion of the rule to be limited to insubordinate-
type behavior. Rather, given the patent ambiguity of the
term “disrespectful conduct,” employees would reasona-
bly construe the rule here to prohibit activities protected
by Section 7. Accordingly, we find this rule overbroad
and in violation of Section 8(a)(1).
Our dissenting colleague contends that we have read
the rule out of context. In fact, the opposite is true. The
language of the rule—“[i]nsubordination or other disre-
spectful conduct (including failure to cooperate fully
with Security, supervisors and managers)” (emphasis
added)—establishes that “insubordination” is a subcate-
gory of “disrespectful conduct,” not the other way
around. Although the “insubordination” component un-
derstandably addresses the Respondent’s legitimate in-
terests, the parameters of the underlying phrase “disre-
spectful conduct” are not so well defined. The rule’s
parenthetical clause does not serve as a limitation. First,
it refers to conduct “including” —but not limited to—the
example it gives. Second, a “failure to cooperate fully
with” management representatives easily encompasses
conduct less than actual insubordination, including oppo-
sitional Section 7 activity that managers deem uncooper-
ative, such as engaging in a protected protest or strike,
encouraging opposition to a contract proposal favored by
management, or insisting on processing a grievance on
behalf of a worker who management believes it has
grounds to fire.
3. Rule Prohibiting Solicitation and Distribution of Lit-
erature in the Work Place
We agree with the General Counsel that the rule pro-
hibiting solicitation or distribution in the workplace at
any time, for any purpose, is overbroad and thus violates
Section 8(a)(1). Generally, an employer’s ban on solici-
tation that is not limited to working time, or on distribu-
tion of literature that is not limited to working time and
working areas, is presumptively invalid. Our Way, Inc.,
268 NLRB 394 (1983); Stoddard-Quirk Mfg. Co., 138
NLRB 615, 615–621 (1962). The Board has held that
gambling establishments, such as the one involved here,
are analogous to retail stores for the purpose of assessing
no-solicitation and no-distribution rules. Thus, an em-
ployer may lawfully prohibit all such activity in the
gambling area, which the Board equates to “selling
floor” areas in retail stores. See, e.g., Flamingo Hilton-
Laughlin, 330 NLRB 287, 288, 294 (1999). Here, how-
ever, the Respondent’s rule was not so constrained, but
prohibited solicitation and distribution “in the workplace
at any time, for any purpose.” We agree with the Gen-

LYTTON RANCHERIA OF CALIFORNIA 1353
eral Counsel that it is clearly overbroad and violates Sec-
tion 8(a)(1).
4. Rule Prohibiting Making False, Fraudulent or
Malicious Statements
We agree with the General Counsel that the rule pro-
hibiting false, fraudulent, or malicious statements is
overbroad and thus violates Section 8(a)(1). In Lafayette
Park Hotel, above, the Board found unlawful a handbook
provision which prohibited employees from “[m]aking
false, vicious, profane or malicious statements toward or
concerning the Lafayette Park Hotel or any of its em-
ployees.” 326 NLRB at 828. The Board reasoned that
prohibiting employees from making merely false state-
ments, as opposed to maliciously false statements, was
overbroad and had the tendency to chill protected activi-
ty. Id., citing Cincinnati Suburban Press, 289 NLRB
966, 975 (1988). The Board further explained that the
rule “‘fail[ed] to define the areas of permissible conduct
in a manner clear to employees,’” 326 NLRB at 828,
quoting American Cast Iron Pipe Co. v. NLRB, 600 F.2d
132, 137 (8th Cir. 1979). The Respondent’s rule is es-
sentially identical to the provisions found unlawful in
Lafayette Park Hotel, and the cases cited there. See also
First Transit, Inc., above, slip op. 11–12; Flamingo Hil-
ton-Laughlin, above, 330 NLRB at 288 fn. 4, 294. Ac-
cordingly, it is unlawful as well.
5. Rule Prohibiting Employees From Being in
the Back of the House More than 30 Minutes
Before or After Their Shifts
We agree with the General Counsel that the rule limit-
ing off-duty employee access to the back of the house
areas violates Section 8(a)(1). We evaluate the Respond-
ent’s access rule under the well-established test of Tri-
County Medical Center, 222 NLRB 1089 (1976). In Tri-
County, the Board held that an employer’s rule barring
off-duty employees from access to its facility is valid
only if it: (1) limits access solely with respect to the inte-
rior of the plant and other working areas; (2) is clearly
disseminated to all employees; and (3) applies to off-duty
employees seeking access to the plant for any purpose
and not just to those employees engaging in union activi-
ty. Id. at 1089.
Under Tri-County, as applied in Saint John’s Health
Center, 357 NLRB 2078 (2011), the Respondent’s rule is
unlawful under the third prong of the Tri-County test
because it does not “uniformly prohibit access to off-duty
employees seeking entry to the property for any pur-
pose.” Id., at 2083 (emphasis added). Thus, outside the
30-minute pre and postshift periods, the rule specifically
permits off-duty access for business with the human re-
sources department and training and orientation sessions.
Moreover, it provides for any additional access solely
with management’s approval. This last exception effec-
tively vests management with unlimited discretion to
expand or deny off-duty employees’ access for any rea-
son it chooses. See Piedmont Gardens, 360 NLRB 813,
814, (2014); see also Saint John’s Health, above, slip op.
at 5 (“In effect, the [r]espondent is telling its employees,
you may not enter the premises after your shift except
when we say you can.”). The Respondent’s policy thus
clearly fails the third prong of the Tri-County test.6
6. Respondent’s Attempted Repudiation of the
Unlawful Rules
The Respondent contends that the General Counsel’s
handbook rule allegations are moot because, in 2011, it
issued a new handbook that did not contain any of the
contested rules. We disagree. In order for a repudiation
to serve as a defense to an unfair labor practice finding, it
must be timely, unambiguous, specific in nature to the
coercive conduct, and untainted by other unlawful con-
duct. In addition, there must be adequate publication of
the repudiation to the employees involved, and the repu-
diation must assure employees that, going forward, the
employer will not interfere with the exercise of their Sec-
tion 7 rights. Passavant Memorial Area Hospital, 237
NLRB 138, 138–139 (1978). In DaNite Sign Co., 356
NLRB 975, 981 (2011), the Board affirmed the judge’s
finding that the employer did not cure its violation of
Section 8(a)(1) by issuing a revised handbook that delet-
ed the unlawful rule at issue. Here, as in Danite Sign, the
Respondent did not effectively repudiate the unlawful
handbook rules simply by issuing a revised handbook
subsequently that deleted the rules.7
6 For similar reasons, the rule fails to pass muster under a Lutheran-
Heritage analysis, because employees would reasonably construe the
broad managerial-approval exception as requiring them to disclose their
intent to engage in protected activity when seeking such approval, a
compelled disclosure that would certainly tend to chill the exercise of
Sec. 7 rights.
Our dissenting colleague says that the Respondent’s rule does not re-
strict employees’ Sec. 7 rights because the Respondent provides suffi-
cient access. Our colleague, however, fails to address the central prin-
ciple set forth in Saint John’s Health Center, above, that the Respond-
ent’s off-duty access rule violates Sec. 8(a)(1) because it does not uni-
formly prohibit access. Even if the Respondent’s rule provides em-
ployees with 60 minutes of access, the Respondent still has the discre-
tion to approve or deny additional access to the premises for any rea-
son.
7 We have not included a rescission provision for the unlawful rules
in our Order because they have already been rescinded.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1354
B. The Alleged Changes to the Union’s Access
to the Casino
The parties’ expired collective-bargaining agreement
contains the following provision regarding union access
to the Casino:

Properly authorized Representatives of the Union shall
be permitted to enter the Employer’s premises through
the team member entrance in order to investigate the
status of all employees and to investigate the conditions
to see that the Agreement is being enforced. Upon en-
tering the premises, Union Representatives shall notify
the management that they are on the premises.

. . . . At all times, Union Representatives shall conduct
themselves in such a manner as to ensure that there is
no unreasonable interruption or interference with the
duties of an employee or the Employer’s operation.

On January 25, 2011,8 the Union agreed with the Respond-
ent on modifications of the contractual access provision that
its representatives would follow while the parties were ne-
gotiating a successor contract. Specifically, the union repre-
sentatives agreed to advise the Respondent in advance of a
visit, to sign in, and to be escorted when they moved from
place to place within the casino.
1. Barring Access to Employee Break Room
The judge found that, on March 21, Union Representa-
tive Max Alper called in advance and was escorted to the
employee cafeteria. Alper then asked to be escorted to
the employee break room. He testified that he wanted to
see if any union members were there. Security Supervi-
sor Buddy Jah replied that he would have to check on
this request, and he then left. When Jah returned, he told
Alper that he could not go to the break room. When
Alper asked why, Jah responded that this was what he
had been told. Union Representatives Yulisa Elenes,
Hao Bin Lee, and Alper testified that they had been able
to go the employee break room in the past. Jah testified
that he spoke to James Grant, the Respondent’s director
of guest safety, concerning Alper’s request and that
Grant informed him that he could not give authorization
at that time. Grant testified that he could not accommo-
date Alper’s request because the Casino was really busy.
He also testified that Alper should have made an ap-
pointment in advance to go the break room.
The judge failed to address the complaint allegation
that the Respondent violated Section 8(a)(5) and (1) by
denying the Union access to the break room. In their
exceptions, the General Counsel and the Charging Party
8 All dates hereafter are in 2011, unless otherwise noted.
argue that although Alper had complied with the terms of
the newly-modified contractual access provision, both by
calling in advance and by requesting an escort to move
around the back of the house, the Respondent nonethe-
less barred Alper from going to areas, including the
break room, where union representatives had previously
been permitted to go. They further contend that the Re-
spondent unilaterally implemented this material change
without giving the Union notice and an opportunity to
bargain. We find merit in their exceptions.
A union access provision in a collective-bargaining
agreement is a term and condition of employment that
survives the agreement’s expiration. See, e.g., T.L.C. St.
Petersburg, Inc., 307 NLRB 605, 610 (1992), enfd.
mem. 985 F.2d 579 (11th Cir. 1993). “[A] unilateral
change in an employer’s policy permitting access by un-
ion representatives to its premises is a unilateral change
in the employees’ terms and conditions of employment
and is, ordinarily, unlawful.” Turtle Bay Resorts, 355
NLRB 1272, 1272 (2010). In addition, a unilateral
change in the past practice of permitting union access is a
material change about which an employer is obligated to
bargain. Ernst Home Centers, 308 NLRB 848, 849
(1992).
In the present case, it is undisputed that up until March
21, the union representatives had been allowed to go to
the employee break room. Denying Alper access to the
break room was a material change in the parties’ past
practice about which the Respondent was obligated to
bargain. Thus, by preventing the Union from meeting
with employees in the break room, the Respondent hin-
dered the Union’s ability to represent employees, and
this constituted a significant limitation on the employees’
Section 7 rights. See, e.g., Turtle Bay Resorts, above at
1276 (employer’s unilateral change of the parking condi-
tions for union business agents on the property on offi-
cial business was a material change of employees’ terms
and conditions of employment).
The Respondent contends that it was unable to ac-
commodate Alper’s request to go to the employee break
room because the Casino was very busy. That the Casi-
no may have been busy does not justify denying Alper
access. There is neither language in the contractual ac-
cess provision nor any past practice that would permit
the Respondent to deny a union representative access to
the break room because the Casino is busy. Further,
there is no merit to the Respondent’s assertion that Alper
failed to make an appointment to visit the break room
prior to his arrival. The Union had only agreed to advise
the Respondent in advance of a visit; it was not required
to provide advance notice as to which area it sought ac-
cess. Accordingly, for all the reasons stated above, we

LYTTON RANCHERIA OF CALIFORNIA 1355
find that the Respondent violated Section 8(a)(5) and (1)
by prohibiting union representatives from going to the
employee break room.
2. Barring Union Representative from
Property Indefinitely
The judge found that, on December 7, a grievance
meeting was held at the Respondent’s training center,
located separate and apart from the Casino. Alper and
Union Representative Jessica Medina attended the meet-
ing on behalf of the Union. After the meeting was over,
Alper attempted to talk with Human Resources Manager
Chris Mavroudis. Grant, the director of guest safety,
walked over and Mavroudis walked away. Grant told
Alper and Medina that they needed to leave, and he re-
peated the request four or five times before they agreed
to leave. On January 31, 2012, the Respondent’s attor-
ney sent an email to Alper stating that Medina was
barred from the Respondent’s property.
The judge did not address the complaint allegation
concerning this conduct. The General Counsel and the
Charging Party argue in their exceptions that the Re-
spondent denied employees access to their union repre-
sentative in violation of Section 8(a)(5) by barring Medi-
na from its property indefinitely. They assert that Medi-
na did nothing at the December 7 grievance meeting that
warranted her exclusion. The Respondent maintains that
it expelled Medina from its property due to her refusal to
leave the training center after being asked to do so sever-
al times following the grievance meeting. The Respond-
ent does not explain why it chose to exclude Medina, but
not Alper.
We agree with the General Counsel and the Union that
the Respondent violated the Act as alleged. As set forth
above, the access granted to union representatives was an
existing term and condition of employment that survived
the contract’s expiration. It is undisputed that Medina
previously had been permitted access to the Respond-
ent’s property. The contractual access provision pro-
vides that “Union Representatives shall conduct them-
selves in such a manner as to ensure that there is no un-
reasonable interruption or interference with the duties of
an employee or the Employer’s operation.” The Re-
spondent failed to establish that Medina and Alper unrea-
sonably interfered with its operation. At most, they de-
layed their departure after a meeting, until asked to do so
four or five times. The time between the first request
that they leave and their departure was very short.9
There was no confrontation, simply an attempt to contin-
9 Although the judge did not make a specific finding as to the time
elapsed, Grant, who made the requests, testified that it was only about 4
minutes.
ue the meeting a little longer than Grant and Mavroudis
wanted. At most, Grant and Mavroudis got back to the
Casino a few minutes later.10
In expelling Medina from its property, the Respondent
deprived employees of their contractually granted access
to their bargaining representative on the property. This
interference constituted a unilateral change of a material
term or condition of employment. See Frontier Hotel &
Casino, 309 NLRB 761, 766 (1992), enfd. sub nom.
NLRB v. Unbelievable, Inc., 71 F.3d 1434 (9th Cir. 1995)
(employer’s expulsion of union representatives constitut-
ed a unilateral change of a material term or condition of
employment, and interfered with the representational
process). Accordingly, we find that the Respondent vio-
lated Section 8(a)(5) and (1) by barring Union Repre-
sentative Medina from its property.
3. Barring Access to Area Where Employee
Schedules are Posted
The judge found that, on March 10, Union Representa-
tive Alper called in advance of his visit to the Casino and
checked in at the security desk when he arrived. After
being escorted to the employee cafeteria, Alper requested
that he be escorted to where the employee schedules
were posted. Shortly thereafter, Human Resources Man-
ager Mavroudis came to the cafeteria and informed Alper
that he could not go to the location where the schedules
were posted; instead, he offered to email the schedules to
Alper. Alper testified that it was his understanding that,
in the past, the Union had access to this area. Union
Representative Lee corroborated Alper’s testimony: he
testified that when he was assigned to represent casino
employees from 2006 through 2009, he did not need
permission to go to this area and he was never prohibited
from seeing employee schedules. Mavroudis, however,
testified that he did not allow Alper access to the kitchen
area to review employee schedules because that was a
working area and union representatives had never been
allowed access to that area. Mavroudis further testified
10 Citing Nynex Corp., 338 NLRB 659 (2002), the Respondent con-
tends that it had the right to bar Medina from its property because she
lost the Act’s protection by refusing to leave the property. Nynex is
distinguishable. In that case, the union executive board consisting of
13 individuals (12 of whom were employees) entered the employer’s
center unannounced, proceeded into work areas over the employer’s
repeated objections, and demanded to schedule appointments to discuss
grievances. The Board, having considered that the union representa-
tives caused a 2-hour disruption of work, found their conduct unpro-
tected, and held that the employer did not violate Sec. 8(a)(1) by calling
the police, suspending the employees involved, and suing the union for
trespass. Id. at 660–661.
In the present case, Medina and Alper were rightfully on the proper-
ty for a scheduled grievance meeting, and there was no evidence that
their delay in leaving caused any disruption of the Respondent’s busi-
ness.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1356
that, since at least March 2010, he had emailed employee
schedules to the Union upon request.
The complaint, at paragraph 12(c)(2), alleges that the
Respondent violated Section 8(a)(5) and (1) by unilater-
ally implementing a rule barring union representatives
from accessing areas of the Casino where employee
schedules are posted. In their exceptions concerning the
judge’s failure to address this allegation, the General
Counsel and the Charging Party argue that, prior to
March 10, union representatives regularly had been al-
lowed access to these areas and that the Respondent did
not provide the Union notice or an opportunity to bargain
over this change. Given the conflicting testimony out-
lined above, resolution of this issue turns on credibility
determinations that the judge must make in the first in-
stance. Accordingly, we shall remand the denial of ac-
cess allegation to the judge for the limited purpose of
making specific credibility findings resolving the con-
flicting testimony between the General Counsel’s wit-
nesses and Mavroudis, and issuing findings of fact, con-
clusions of law, and a supplemental recommended Order
with respect to this allegation.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 4.
“4. The Respondent violated Section 8(a)(5) and (1) of
the Act by implementing new rules restricting the Un-
ion’s access to unit employees at the facility, without
providing the Union notice and an opportunity to bar-
gain, including: (a) requiring union representatives to
disclose the purpose of their meetings with employees;
(b) conditioning access on the Union having a scheduled
meeting with an employee; (c) prohibiting union repre-
sentatives from going to the employee break room; and
(d) barring a union representative from access to its
property.”
2. Insert the following as Conclusion of Law 7 and re-
number the subsequent paragraphs.
“7. The Respondent violated Section 8(a)(5) and (1) of
the Act by unilaterally reducing the number of shifts for
four unit employees.
3. Insert the following as Conclusion of Law 11 and
renumber the subsequent paragraph.
“11. The Respondent violated Section 8(a)(1) of the
Act by maintaining in its employee handbook, from
about August 2010 until May 2011, work rules:
“(a) Proscribing ‘Insubordination or other disrespectful
conduct (including failure to cooperate fully with securi-
ty, supervisors, and managers).’
“(b) Stating ‘team members may not solicit or distrib-
ute literature in the workplace at any time, for any pur-
pose.’
“(c) Proscribing ‘making false, fraudulent, or mali-
cious statements to or about a team member, a guest or
San Pablo Lytton Casino.’
“(d) Stating ‘team members are not permitted in the
back of the house areas more than thirty (30) minutes
prior to the beginning of their shift or longer than thirty
(30) minutes following the end of their shift, except un-
der [certain] circumstances.’”
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by refusing to provide contrac-
tual health benefits for four unit employees and by uni-
laterally reducing the number of shifts for those employ-
ees, we shall order the Respondent to rescind these ac-
tions and to make these employees whole for any loss of
earnings and other benefits they may have suffered as a
result of these unlawful changes, in the manner set forth
in Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). The Re-
spondent shall reimburse the four unit employees for any
expenses resulting from its refusal to provide contractual
health benefits, as set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940
(9th Cir. 1981), with interest as prescribed in New Hori-
zons for the Retarded, above, compounded daily as pre-
scribed in Kentucky River Medical Center, above. Fur-
ther, consistent with our decision in Don Chavas, LLC
d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), the
Respondent must compensate these employees for any
adverse tax consequences of receiving lump-sum back-
pay awards and file a report with the Social Security
Administration allocating the backpay awards to the ap-
propriate calendar quarters for each unit employee.
We also find that a public reading of our remedial no-
tice is appropriate here. The Respondent’s violations of
the Act are sufficiently serious and widespread that the
reading of the notice is necessary to dissipate as much as
possible any lingering effects of the Respondent’s unfair
labor practices, and to enable employees to exercise their
Section 7 rights free of coercion. See, e.g., Carey Salt
Co., 360 NLRB 201, 202 (2014); HTH Corp., 356 NLRB
1397,1404 (2011), enfd. 693 F.3d 1051 (9th Cir. 2012);
Homer D. Bronson Co., 349 NLRB 512, 515 (2007),
enfd. mem. 273 Fed.Appx. 32 (2d Cir. 2008). Therefore,
we will require that the attached notice be read publicly
LYTTON RANCHERIA OF CALIFORNIA 1357
by the Respondent’s representative or by a Board agent
in the Respondent’s representative’s presence.11
ORDER
The National Labor Relations Board orders that the
Respondent, Lytton Rancheria of California d/b/a Casino
San Pablo, San Pablo, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union,
UNITE HERE Local 2850.
(b) Implementing new rules restricting the Union’s
contractual access to unit employees at the facility, with-
out providing the Union notice and an opportunity to
bargain, including: (1) requiring union representatives to
disclose the purpose of their meetings with employees;
(2) conditioning access on the Union having a scheduled
meeting with an employee; (3) prohibiting union repre-
sentatives from going to the employee break room; and
(4) barring union representatives from access to its prop-
erty.
(c) Unilaterally announcing and implementing new
benefits for part-time employees.
(d) Unilaterally refusing to provide contractual health
benefits for unit employees working 16 or more shifts
per month.
(e) Unilaterally reducing the number of shifts for those
employees.
(f) Refusing to furnish relevant information requested
by the Union for collective bargaining or grievance han-
dling purposes.
(g) Coercively interrogating any employee about union
support or union activities.
(h) Telling employees not to discuss their investiga-
tions with other employees.
(i) Maintaining a work rule that prohibits insubordina-
tion or other disrespectful conduct.
(j) Maintaining a work rule that prohibits solicitation
or distribution in the workplace at any time, for any pur-
pose.
(k) Maintaining a work rule that prohibits making
false, fraudulent, or malicious statements.
11 Although the General Counsel did not seek an order requiring the
Board’s notice to be read aloud, his failure to do so does not preclude
our imposing such a remedy. The Board has broad discretionary au-
thority under Sec. 10(c) to fashion appropriate remedies that will best
effectuate the policies of the Act. NLRB v. J. H. Rutter-Rex Mfg. Co.,
396 U.S. 258, 262–263 (1969). It is well established that remedial
matters are traditionally within the Board’s province and may be ad-
dressed by the Board even in the absence of exceptions. See, e.g.,
Fieldcrest Cannon, Inc., 318 NLRB 470, 473 fn. 6 (1995), enfd. in
relevant part 97 F.3d 65 (4th Cir. 1996); Schnadig Corp., 265 NLRB
147 (1982).
(l) Maintaining a work rule that prohibits employees
from being in the back of the house more than 30
minutes prior to the beginning of their shift or longer
than 30 minutes following the end of their shift except
under certain specified circumstances.
(m) 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) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate bargaining unit concerning
terms and conditions of employment, and if an under-
standing is reached, embody the understanding in a
signed agreement:

All full-time and regular part-time food and beverage,
maintenance, and housekeeping employees, including
barbacks, bartenders, broiler server, casino servers, lead
food servers, American line cooks, Asian Line cooks,
broiler porters, casino porters, concession workers,
hosts/hostesses, lead cook, lead utility worker, house-
keepers, lead housekeepers, slot technicians and gam-
ing floor persons employed by Respondent at its San
Pablo, California gaming establishment; excluding all
other employees, guards, and supervisors, as defined by
the Act.

(b) On request of the Union, rescind the unilateral
changes implemented in its employees’ terms and condi-
tions of employment, specifically:
(1) Requiring union representatives, pursuant to their
contractual access to the property, to disclose the purpose
of their meetings with employees.
(2) Conditioning union representatives’ contractual ac-
cess on their having scheduled meetings with employees.
(3) Prohibiting union representatives, pursuant to their
contractual access to the property, from going to the em-
ployee breakroom.
(4) Barring union representative Jessica Medina from
contractual access to the property.
(5) Granting part-time employees holiday pay and ad-
ditional days off without pay.
(6) Refusing to provide contractual health benefits for
unit employees working 16 or more shifts per month.
(7) Reducing the number of shifts for unit employees.
(c) Make whole Al Balbuena, Isabel Garriddo, Redolfo
Trinidad, and Ali Challal, for any loss of earnings and
other benefits suffered as a result of reducing the number
of shifts that they worked and by denying them contrac-
tual health benefits from March 2011 to September 2011,
including, but not limited to, reimbursing them for any

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1358
medical expenses or costs they incurred as a result of not
receiving their contractual health insurance for that peri-
od.
(d) Compensate Al Balbuena, Isabel Garriddo, Redolfo
Trinidad, and Ali Challal for the adverse tax consequenc-
es, if any, of receiving a lump-sum backpay award, and
file a report with the Social Security Administration allo-
cating the backpay award to the appropriate calendar
quarters.
(e) Furnish relevant information requested by the Un-
ion for collective bargaining or grievance handling pur-
poses.
(f) 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.
(g) Within 14 days after service by the Region, post at
its facility in San Pablo, California, copies of the at-
tached notice marked “Appendix.”12 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 32, after being signed by the Respondent’s author-
ized 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 physical 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 Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since June 2010.
(h) Within 14 days of the date of this order, the Re-
spondent will hold a meeting or meetings, scheduled to
ensure the widest possible attendance, to fully communi-
cate with employees, at which the attached notice marked
12 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.”
“Appendix” will be publicly read by a responsible corpo-
rate executive in the presence of a Board agent or, at the
Respondent’s option, by a Board agent in the presence of
a responsible corporate executive.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 32, a sworn certi-
fication of a responsible official on a form provided by
Region 32 attesting to the steps the Respondent has taken
to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
IT IS FURTHER ORDERED that the portion of this pro-
ceeding relating to the complaint allegation that the Re-
spondent violated Section 8(a)(5) and (1) by unilaterally
implementing a rule barring union representatives from
access to areas of the casino where employee schedules
are posted is remanded to Judge Jay R. Pollack for the
purpose of making credibility resolutions concerning the
conflicting testimony between the General Counsel’s
witnesses and the Respondent’s witness, Chris
Mavroudis, as discussed in the decision above. The
judge shall prepare and serve on the parties a supple-
mental decision containing findings of fact, conclusions
of law, and a recommended Order in light of the Board’s
remand. Following service of the supplemental decision
on the parties, the provisions of Section 102.46 of the
Board’s Rules and Regulations shall be applicable.

MEMBER JOHNSON, dissenting in part.
Contrary to my colleagues, I would find that the Re-
spondent’s rules prohibiting insubordination or other
disrespectful conduct and limiting off-duty employee
access to “back of the house” areas were lawful. I also
again urge the Board to adopt a more rational and com-
prehensive approach to litigation of work rule allegations
under Lutheran Heritage Village-Livonia, 343 NLRB
646 (2004). Finally, even considering those two rule
violations in conjunction with all other violations found
here, I would not find the additional notice-reading rem-
edy to be warranted in the circumstances of this case. In
other respects, I join my colleagues’ decision.
I. THE RULES AT ISSUE
A. The Insubordination Rule
In my view, the Respondent’s rule prohibiting insub-
ordination or other disrespectful conduct obviously ad-
dresses legitimate business concerns. I find that a rea-
sonable employee would not read the rule to prohibit
conduct protected by the Act for two reasons. First, the
phrase “disrespectful conduct” is stated as essentially a
subcategory of the term “insubordination”—as demon-
strated by the rule’s complete text, which prohibits

LYTTON RANCHERIA OF CALIFORNIA 1359
“[i]nsubordination or other disrespectful conduct.”
(Emphasis added.) Second, “disrespectful conduct” is
further elucidated by the parenthetical example, which
defines “disrespectful conduct” to include “failure to
cooperate with Security, supervisors and managers.”
Thus, the “disrespectful conduct” addressed by the rule is
specifically directed to the rule’s focus on “insubordina-
tion.”
My colleagues contend that “‘insubordination’ is a
subcategory of ‘disrespectful’ conduct, not the other way
around,” and that employees would reasonably construe
the term “disrespectful conduct” to encompass Section 7
activity. As I explain below, their interpretation defies
established canons of construction, including ejusdem
generis, which means “of the same kind or nature.”1
Here, the general “other disrespectful conduct” must be
read to be of the same kind or nature as the more specific
“insubordination,” and the parenthetical drives that point
home. As the majority acknowledges, in Community
Hospitals of Central California v. NLRB, the D.C. Cir-
cuit reversed the Board’s conclusion that a similar rule
was unlawful, finding that the “Board’s suggestion that
employees would consider ‘vigorous proselytizing for or
against a union,’ or other protected activity, ‘insubordi-
nate’ within the condemnation of [the rule], is implausi-
ble.”2 My colleagues claim, without any real explana-
tion, that the rule in Community Hospitals was “squarely
focused” on insubordinate conduct, apparently drawing a
distinction between the rule there and the instant rule
which employees would not “necessarily read . . . to be
limited to insubordinate-type behavior.”3 But, unlike the
rule here, which actually provides an example of what is
meant by “disrespectful conduct,” the Community Hospi-
tals rule provided no such additional guidance to em-
ployees. Here, by contrast, the rule describes disrespect-
ful conduct to include the “failure to cooperate fully with
Security, supervisors and managers,” i.e., clearly con-
notes insubordinate conduct directed towards managers.4
1 Merriam-Webster Online Dictionary.
2 Community Hospitals of Central California v. NLRB, 335 F.3d
1079, 1088–1089 (D.C. Cir. 2003), denying enf. of University Medical
Center, 335 NLRB 1318 (2001). The rule at issue prohibited
“[i]nsubordination, refusing to follow directions, obey legitimate re-
quests or orders, or other disrespectful conduct towards a service inte-
grator, service coordinator, or other individual.”
3 The majority does not attempt to explain why, if the rule in Com-
munity Hospitals was as “squarely focused” as it now claims, the Board
there found it unlawfully overbroad. This lack of explanation only
highlights the complete lack of predictability that I discuss below.
4 The majority gives the same mistaken construction of the parenthe-
tical illustration as it does to the general rule, reasoning that “failure to
cooperate” is, like “disrespectful conduct,” comprehensive of less than
insubordinate conduct, including protected protest and grievance activi-
ty.
As the court stated in Community Hospitals, 335 F.3d at
1089, the “‘other disrespectful conduct’ to which [the
rule] refers is clearly conduct of a piece with ‘insubordi-
nation’. . . .” And, as the Board explained in Lafayette
Park Hotel, 326 NLRB 824, 825 (1998), “any arguable
ambiguity” in the rule that the majority sees here imper-
missibly “arises only through parsing the language of the
rule, viewing the phrase [“or other disrespectful con-
duct”] . . . in isolation, and attributing to the [employer]
an intent to interfere with employee rights.” In other
words, this is not real ambiguity at all.
Further, I note that the majority’s analysis departs from
other Board precedent finding similar rules to be lawful.
See Copper River of Boiling Springs, LLC, 360 NLRB
459, 459, fns. 2–3, 13 (2014) (finding lawful employer’s
maintenance of a rule prohibiting “[i]nsubordination to a
manager or lack of respect and cooperation with fellow
employees or guests,” which “includes displaying a
negative attitude that is disruptive to other staff or has a
negative impact on guests”);5 Lutheran Heritage, above,
343 NLRB at 647 (citing with approval the D.C. Cir-
cuit’s decision in Community Hospitals, above, and de-
clining, where rule did not refer to Section 7 activity, to
conclude that a “reasonable employee would read the
rule to apply to such activity simply because the rule
could be interpreted that way. To take a different analyt-
ical approach would require the Board to find a violation
whenever the rule could conceivably be read to cover
Section 7 activity, even though that reading is unreason-
able); Lafayette Park Hotel, 326 NLRB at 825 (finding
lawful a handbook rule prohibiting “[b]eing uncoopera-
tive with supervisors, employees, guests and/or regulato-
ry agencies or otherwise engaging in conduct that does
not support the [employer’s] goals and objectives”; no
ambiguity in rule addressing legitimate business con-
cerns). Consistent with the above precedent, I find that
employees would not reasonably understand the Re-
spondent’s rule to prohibit Section 7 activity.
My colleagues rely on First Transit, Inc., 360 NLRB
619, 620–621 (2014); 2 Sisters Food Group, 357 NLRB
5 The majority argues that Copper River of Boiling Springs, above, is
distinguishable because, in that case, the Board was concerned not with
the rule’s reference to “insubordination” and “lack of respect,” but with
the reference to “negative attitude.” It is true that, in footnotes, the
Board addressed the “negative attitude” language in the rule in response
to Chairman Pearce’s dissent focusing on that language. However, the
Board adopted the judge’s analysis, which, in my view, considered the
rule as a whole. In this regard, the judge’s analysis relied in part on the
D.C. Circuit’s rationale in Community Hospitals, which, as explained
above, found that a similar rule, read as a whole, was intended to pro-
hibit insubordinate activity. 360 NLRB 459, 470–47113. Further, the
judge explained that the “language in a rule which relates a prohibition
to a specific legitimate business purpose may well affect how employ-
ees reasonably understand the scope of the rule.” Id. at 13.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1360
1816, 1817 (2011); and Claremont Resort & Spa, 344
NLRB 832, 832 and fn. 4 (2005), to support their posi-
tion. I dissented in First Transit, above, at 621 fn. 8,
reasoning that the employer’s rule prohibiting
“[d]iscourteous or inappropriate attitude or behavior . . .
was similar to other rules that the Board has found law-
ful. Further, I agree with then-Member Hayes’ dissent in
2 Sisters Food Group, above, at 1829, where the majori-
ty, in finding unlawful a rule subjecting employees to
discipline for the “inability or unwillingness to work
harmoniously with other employees” departed from
Board precedent holding lawful rules that do no more
than reflect “the lawful expectation that employees
‘comport themselves with general notions of civility and
decorum in the workplace.’” Moreover, I find
Claremont Resort & Spa, prohibiting “negative conver-
sations about associates and/or managers,” distinguisha-
ble. There, the rule expressly encompassed concerted
activity by proscribing “conversations,” in contrast to the
rule at issue here. As noted by the judge in Copper River
of Boiling Springs, above, 360 NLRB 459, 471, a rule
prohibiting “‘conversation’ cuts to the very essence of
activity which the Act protects because all other actions
contemplated by the statutory scheme flow out of em-
ployees’ discussions about their wages, hours, and other
terms and conditions of employment . . . .” In any event,
in none of the cases cited by the majority did the contest-
ed rule reference insubordination.
B. The Off-Duty Access Rule
I also find that the Respondent’s off-duty access rule
complies with Tri-County Medical Center, 222 NLRB
1089 (1976). The rule lawfully limits off-duty employees
from accessing back of the house areas more than 30
minutes prior to the beginning of their shift or longer
than 30 minutes following the end of their shift. I recog-
nize the importance of providing off-duty employees
with some opportunity to exercise their Section 7 rights.
But I believe that employers have legitimate business
interests in limiting such access, such as prevention of
situations where off-the-clock work might later be al-
leged, a risk management interest that has nothing to do
with Section 7 rights. Thus, I find that the Respondent’s
blanket allowance of 60 minutes for off-duty access for
any purpose is sufficient time for employees to exercise
Section 7 activity, even if more extensive access could be
granted for other business-related purposes.
The Respondent’s rule provides off-duty employees
with plenty of time to engage in protected concerted ac-
tivity before off-duty access is denied. Most importantly
here, the interest sought to be protected by Tri-County’s
test is some baseline quantum of cross-shift access, so
that employees can exercise Section 7 rights between
shifts. That was why Tri-County, above at 1018 (foot-
note omitted, emphasis. added), narrowed the prior ac-
cess rule standard that the Board had established a few
years previously in GTE Lenkurt, Inc., 204 NLRB 921
(1973):

The holding of GTE Lenkurt must be narrowly con-
strued to prevent undue interference with the rights of
employees under Section 7 of the Act freely to com-
municate their interest in union activity to those who
work on different shifts.

Bearing that underlying purpose in mind, and noting as well
that Tri-County permits a total ban on off-duty employee
access to a facility’s interior, it stands to follow that once an
employer has provided enough time to employees for Sec-
tion 7 activity in between shifts within the facility, then
business-related or supervisory-approval-related limitations
on additional time do not fall afoul of prong 3 of Tri-County
or any other part of its test. I would find that the 1 hour per
workday of additional off-duty time that the Responded
afforded, on top of meal and breaktime, is enough in the
circumstances of this case.6
II. CHANGING THE AD HOC METHODOLOGY OF
DECIDING EMPLOYER RULE CASES UNDER
LUTHERAN HERITAGE VILLAGE-LIVONIA
It is incumbent on any adjudicatory or quasi-
adjudicatory agency, like the Board, not only to decide
the cases before it correctly, but to give parties guidance
as to why it is deciding cases the way it does. More than
any other area of jurisprudence under the Act, the Lu-
theran Heritage “reasonable employee” standard has
come under acute, justified criticism for producing un-
predictable results. What should be concerning to the
Board is that a test generating unpredictable results, by
definition, makes compliance impossible. Indeed, one
current member of the Board has already given up on the
test entirely. MCPc, Inc., 360 NLRB 216, 216 fn. 4
(Member Miscimarra, concurring). I generally commend
my colleagues’ efforts to begin delineating parameters
within the Lutheran Heritage test that, in turn, will facili-
tate compliance with the Act, such as the discussion in
First Transit, Inc., 360 NLRB 619 (2014), of what may
6 For similar reasons, I find the Respondent’s off-duty access rule is
valid under Lutheran Heritage, above. Reasonable employees would
not understand the rule to prohibit Sec. 7 activity because the Respond-
ent has provided substantial access for off-duty employees to engage in
protected concerted activity before and after their shifts. Because the
Respondent has allowed 60 minutes of access for any purpose, includ-
ing Sec. 7 activity, employees would have no reason to believe that the
Respondent would discriminatorily deny them additional access for
protected activity, while permitting it for other purposes.

LYTTON RANCHERIA OF CALIFORNIA 1361
constitute an adequate Section 7 “safe harbor provision.”
However, much more remains to be done.
A central problem for the current Board is that the Lu-
theran Heritage test depends on how the reasonable em-
ployee would interpret an employer rule in “context,”7
even while the Board supplies no guidance to parties on
how it will look at context, and what the relevant context
is. Indeed, with respect to divining unlawful ambiguity
in a rule, it often seems that we apply a reasonable Board
Member standard rather than a reasonable employee
standard. In any event, simply telling employers that the
Board will look at “context” in order to interpret the re-
action of a reasonable employee, is about as productive
as telling them that we will look to “natural law.” If we
expect employers to comply and write lawful rules, we
owe them an explanation of how we (standing in the
shoes of the reasonable employee) would interpret those
rules. In short, we need to tell parties what our interpre-
tive rules are, so they can draft their own, compliant rules
for the workplace.
Because all human beings, including employees and
their supervisors, interpret documents on a day-to-day
basis, there are obviously rules that they use, and that we
can enunciate in applying the Lutheran Heritage test.
One such rule that should apply is known to lawyers as
“ejusdem generis,” although the concept is generally
familiar to most people. The loose concept is as fol-
lows: where general words follow words of a particular
and specific meaning, such general words are not to be
construed in their widest extent, but are to be held as
applying only to persons or things of the same kind or
class as those specifically mentioned. Here, where “oth-
er disrespectful conduct” follows “insubordination,” a
normal person interprets such conduct to be a species of,
or akin to, insubordination.
It bears noting that former Member Hurtgen addressed
the same concept years ago in the same context of an
employer’s insubordination/disrespectful conduct rule.
In his dissent in University Medical Center, 335 NLRB
1318, 1325 (2001), he noted how ejusdem generis is
merely common sense for interpreting any rule:

In my view, words in a rule are to be interpreted in the
context of the rule, not simply by reference to a dic-
tionary. Applying that principle, the [insubordination]
rule, in context, is aimed at conduct in the course of
business dealings. Indeed, the meaning of the term “or
other disrespectful conduct” is limited by the remainder
of the rule’s language to certain types of conduct. Thus,
7 Fresh & Easy Neighborhood Market, 361 NLRB 72, 73 (2014)
(majority found that the breadth of the challenged rule was not ade-
quately limited by its context).
the “disrespectful conduct” addressed by the rule is
specifically directed at “insubordination, refusing to
follow directions, obey legitimate requests or orders.”
Applying the rule of ejusdem generis, the term “disre-
spectful” means conduct of a nature that is similar to
the types of conduct previously set forth.

More importantly for the Board’s purposes, the court
of appeals agreed with former Member Hurtgen when it
denied enforcement of the Board’s order in that case. As
I think University Medical Center should control this
case, the court’s reasoning, 335 F.3d at 1088–1089, is
instructive:

The Board objected chiefly to the Rule’s prohibition of
“other disrespectful conduct.” When read in context,
however, that prohibition clearly does not apply to un-
ion organizing activity—including “vigorous proselyt-
izing”; it applies to incivility and outright insubordina-
tion, in whatever context it occurs. Although Commu-
nity’s employees are perhaps unlikely to know the term
ejusdem generis, they no doubt grasp as well as anyone
the concept it encapsulates: The “other disrespectful
conduct” to which Rule 1 refers is clearly conduct of a
piece with “insubordination” or “refusing to follow di-
rections [or to] obey legitimate requests or orders.”

Thus, my urging that the Board decide on an actual de-
fined set of rules for interpreting employers’ rules is not
just grounded in fairness to the parties, and common
sense, but also in consideration of the ultimate enforcea-
bility of our orders. Few circuit courts in the long run
are going to countenance the ever-shifting sands of
standardless discretion in making ad hoc determinations
under Lutheran Heritage in its current form. Even when
given substantial judicial deference, an agency ultimately
must give a “reasonable” explanation of why one em-
ployer rule that was adjudged invalid is different than a
very textually similar rule adjudged valid. See Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 843–844 (1984). Deciding on a more spe-
cific test for our own interpretive process will produce
better results, and, just as worthy of a goal, more compli-
ance with the Act.
III. THE NOTICE READING REMEDY
Finally, I disagree with my colleagues’ decision, sua
sponte, to order the Respondent to read aloud the Board’s
notice. Until recently, it seemed clear that such a remedy
was viewed as “special” or “extraordinary” and would
only be required in limited circumstances where the un-
lawful conduct of a respondent was deemed to be “egre-
gious.” See, e.g., A-1 Door & Building Solutions, 356
NLRB 499, 499 fn. 1 (2011) (citing Ishikawa Gasket

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1362
America, Inc., 337 NLRB 175, 176 (2001)). The Re-
spondent’s violations of Section 8(a)(1) and (5), while
numerous, do not rise to what has traditionally been re-
garded as an egregious level of misconduct. Moreover,
even under the somewhat more permissive and ill-
defined standard used in some recent cases,8 it is my
view that the violations committed here by the Respond-
ent do not warrant a notice-reading remedy.
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
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to meet and bargain with the Un-
ion.
WE WILL NOT implement new rules restricting the Un-
ion’s contractual access to unit employees at the facility,
without providing the Union notice and an opportunity to
bargain, including: (1) requiring union representatives to
disclose the purpose of their meetings with employees;
(2) conditioning access on the Union having a scheduled
meeting with an employee; (3) prohibiting union repre-
sentatives from going to the employee break room; and
(4) barring union representatives from access to our
property.
WE WILL NOT unilaterally announce or implement new
benefits for part-time employees.
WE WILL NOT unilaterally refuse to provide contractual
health benefits for unit employees working 16 or more
shifts per month.
WE WILL NOT unilaterally reduce the number of shifts
for those employees.
WE WILL NOT refuse to furnish relevant information
requested by the Union for collective bargaining or
grievance handling purposes.
8 See, e.g., HTH Corp., 356 NLRB 1397, 1404 (2011), enfd. 693
F.3d 1051 (9th Cir. 2012).
WE WILL NOT coercively interrogate employees about
union support or union activities.
WE WILL NOT tell employees not to discuss their inves-
tigations with other employees.
WE WILL NOT maintain overly broad work rules that
restrain employees in the exercise of the rights set forth
above by:

Prohibiting insubordination or other disrespectful con-
duct.

Prohibiting solicitation or distribution in the workplace
at any time, for any purpose.

Prohibiting making false, fraudulent or malicious
statements.

Prohibiting employees from being in the back of the
house more than 30 minutes prior to the beginning of
their shift or longer than 30 minutes following the end
of their shift except under certain specified circum-
stances.

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights listed above.
WE WILL, on request, meet and bargain with the Union
as the exclusive collective-bargaining representative of
our employees in the following appropriate bargaining
unit concerning terms and conditions of employment,
and if an understanding is reached, embody the under-
standing in a signed agreement:

All full-time and regular part-time food and beverage,
maintenance, and housekeeping employees, including
barbacks, bartenders, broiler server, casino servers, lead
food servers, American line cooks, Asian Line cooks,
broiler porters, casino porters, concession workers,
hosts/hostesses, lead cook, lead utility worker, house-
keepers, lead housekeepers, slot technicians and gam-
ing floor persons employed by us at our San Pablo,
California gaming establishment; excluding all other
employees, guards, and supervisors, as defined by the
Act.

WE WILL, on request of the Union, rescind the unilat-
eral changes that we have implemented in our employ-
ees’ terms and conditions of employment, specifically:

(1) Requiring union representatives, pursuant to
their contractual access to the property, to disclose
the purpose of their meetings with employees.

LYTTON RANCHERIA OF CALIFORNIA 1363
(2) Conditioning union representatives’ contrac-
tual access on their having scheduled meetings with
employees.
(3) Prohibiting union representatives, pursuant to
their contractual access to the property, from going
to the employee break room;
(4) Barring Union Representative Jessica Medina
from contractual access to the property.
(5) Granting part-time employees holiday pay
and additional days off without pay.
(6) Refusing to provide contractual health bene-
fits for unit employees working 16 or more shifts per
month.
(7) Reducing the number of shifts for unit em-
ployees.

WE WILL make whole Al Balbuena, Isabel Garriddo,
Redolfo Trinidad, and Ali Challal for any loss of earn-
ings and other benefits suffered as a result of reducing
the number of shifts that they worked and by denying
them contractual health benefits from March 2011 to
September 2011, including, but not limited to, reimburs-
ing them for any medical expenses or costs they incurred
as a result of not receiving their contractual health insur-
ance for that period.
WE WILL compensate Al Balbuena, Isabel Garriddo,
Redolfo Trinidad, and Ali Challal, for the adverse tax
consequences, if any, of receiving a lump-sum award and
WE WILL file a report with the Social Security Admin-
istration allocating the backpay awards to the appropriate
calendar quarters for Balbuena, Garriddo, Trinidad, and
Challal.
WE WILL furnish relevant information requested by the
Union for collective bargaining or grievance handling
purposes.

LYTTON RANCHERIA OF CALIFORNIA D/B/A
CASINO SAN PABLO

The Board’s decision can be found at
www.nlrb.gov/case/32–CA–025585 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.

Gary M. Connaughton, Esq. and Angela Hollowell-Fuentes,
Esq., for the Acting General Counsel.
Richard J. Curiale, Esq. and Joseph C. Wilson, Esq., of San
Francisco, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Oakland, California, on October 29 through No-
vember 1, 2012. On February 4, 2011, UNITE HERE Local
2850 (the Union) filed the charge in Case 32–CA–025585 al-
leging that Lytton Rancheria of California, d/b/a Casino San
Pablo (Respondent) committed certain violations of Section
8(a)(5) and (1) of the National Labor Relations Act (the Act).
On April 4, 2011, the Union filed the charge in Case 32–CA–
025665 against Respondent. On September 7, 2011, the Union
filed the charge in Case 32–CA–064020. The charge in Case
32–CA–086359 was filed by the Union on July 31, 2012. On
August 29, 2012, the Regional Director for Region 32 of the
National Labor Relations Board (the Bard) issued a complaint
and notice of hearing against Respondent, alleging that Re-
spondent violated Section 8(a)(5) and (1) of the Act. Respond-
ent filed a timely answer to the complaint, denying all wrong-
doing. On October 11, 2012, the Regional Director issued
amendments to the complaint. On October 12, 2012, the Re-
gional Director issued a complaint in Case 32–CA–086359.
The complaints were consolidated on October 19, 2012.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses,1 and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, with an office and principal place of busi-
ness in San Pablo, California, has been engaged in the opera-
tion of a commercial gaming and entertainment establishment,
including a gaming casino, restaurant, and cocktail bar (the
1 The credibility resolutions herein have been derived from a review
of the entire testimonial record and exhibits, with due regard for the
logic of probability, the demeanor of the witnesses, and the teachings of
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those wit-
nesses testifying in contradiction to the findings herein, their testimony
has been discredited, either as having been in conflict with credited
documentary or testimonial evidence or because it was in and of itself
incredible and unworthy of belief.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1364
Casino). In the 12 months prior to issuance of the complaint,
Respondent, in conducting its business operations, derived
gross revenues in excess of $500,000. Further, Respondent
received goods and services valued in excess of $5000 from
points outside the State of California. Accordingly, Respond-
ent admits and I find that Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
The Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Bargaining
Respondent operates a commercial gaming and entertain-
ment establishment, including gaming casinos, restaurants, and
cocktail bar at a location in San Pablo, California (the Casino).
The Casino employs approximately 470 employees. The Union
represents approximately 160 employees at the Casino. The
most recent collective-bargaining agreement between Respond-
ent and the Union was effective by its terms from November
2006 through November 2009.
Bargaining for a successor agreement began in November
2009. The parties met 14 times for bargaining between No-
vember 2009 and January 25, 2011, including a session on
October 18, 2010. During the October 18, 2010 bargaining
session, the primary focus of the bargaining was the issue of
healthcare. Present for the Union was its chief negotiator, Wei-
Ling Huber. Representing Respondent was Attorney Richard
Curiale and Attorney Kathryn Ogas. Curiale started the session
by stating that Respondent had gotten a response from its
healthcare provider. Curiale said that it would be too expensive
for Respondent to switch to the Union’s health plan. Curiale
presented a new comprehensive contract proposal which, in-
cluded two new healthcare options. The Union did not reject
these proposals but expressed its problems with the employee
cost of the healthcare proposals.
The next bargaining session was held on November 3, 2010.
At this meeting Curiale pressed Huber to make a choice on the
two healthcare options offered by Respondent. Huber refused
to do so. Huber made a counterproposal which included a
wage proposal.
The parties next met on November 17, 2010. At this meet-
ing, Curiale proposed a healthcare plan that was less costly for
employees than the two choices offered on October 18. Re-
spondent would also be offering a $350 signing bonus. Curiale
said the Union had to accept or reject the plan within the next 2
days. Huber answered that while the new healthcare proposal
was a large improvement over what had been offered previous-
ly, the Union could not accept the plan outside the framework
of a complete agreement. Huber added that if Respondent im-
plemented this healthcare proposal, the Union would not file
unfair labor practice charges as long as Respondent continued
to bargain over the rest of the contract. Curiale said that the
healthcare issue needed to be decided that day. Curiale stated
that the Casino was unwilling to talk about money because the
Lytton Tribe (that owned the Casino) did not want to bargain
about anything other than healthcare at that time. The Union
caucused, and then Huber answered that she could not give an
answer that day or the next day. Huber asked for a counterpro-
posal on language issues that were still outstanding. Curiale
said he would take the healthcare offer off the table but he was
not sure that he was authorized to do so. Curiale then ended the
meeting.
On November 18, the parties met again for bargaining. The
Union accepted Respondent’s healthcare plan. Huber stated
that the Union was only accepting the healthcare plan and noth-
ing else. Huber stated that issues such as healthcare eligibility
were still up for negotiations as well as wages. Curiale stated
that everything but healthcare was still open. Huber accepted
the healthcare plan but stated she intended to negotiate over
every other issue. She said that in January 2011, when the
parties would start negotiating wages again, she would give
Respondent a higher wage proposal. Curiale said he under-
stood.
The parties next met on November 24 but did not discuss
wages. The parties met again on December 16, 2010. During
this meeting Curiale stated that Respondent was not going to
move on anything. Curiale said he would get the Union a final
proposal.
On January 25, 2011, the parties met again. Curiale started
the meeting by distributing a letter and a proposal he character-
ized as Respondent’s last, best, and final offer. The letter
called on the Union to have its members vote on the last, best,
and final offer, which proposed a wage and benefit freeze for
the life of the proposed 2-year contract. Curiale stated that
Respondent had put all its money into the healthcare plan and
that there was nothing more. He urged the Union to have its
membership vote on the last, best, and final offer. Huber in-
sisted that there was still $1.1 to $1.2 million available in new
money. She stated that she did not think Respondent was tak-
ing negotiations seriously. The Union then gave Respondent a
comprehensive bargaining proposal which included a wage
increase. Curiale rejected the Union’s proposal and again
asked that the Union take the last, best, and final offer to its
membership for a vote.
On February 2, 2011, the Union sent an email to Respondent
asking to meet for further negotiations. After not hearing from
Curiale, Huber sent another email on February 13. In this email
Huber stated that the Union would submit Respondent’s final
offer to the employees but, that the Union needed to clarify the
last, best, and final offer. Curiale responded by email that there
was no need to meet and that he would send an errata sheet
with corrections to the final offer.
On February 25 Huber received an email from Curiale clari-
fying certain aspects of Respondent’s final offer. On March 7,
Huber wrote Curiale and raised questions concerning the final
offer and requested that the parties meet.
On May 20, the Union submitted Respondent’s last, best,
and final offer to its membership for a ratification vote. The
offer was rejected by the union membership. Huber then con-
tacted Curiale to resume bargaining.
The parties then meet on June 24. Huber stated that she
wanted to talk about Respondent’s last, best, and final offer and
the Union’s reaction to it. She also wanted to talk about her
costing of the proposal, a new union proposal and the cost of
the Union’s new proposal. Curiale said that negotiations were
LYTTON RANCHERIA OF CALIFORNIA 1365
over and that he would focus on litigation. Huber had a new
proposal to offer, but Curiale left the meeting before she could
present it.
On June 27, Curiale sent Huber a letter stating that the par-
ties were at impasse and that further negotiations would be
futile. On July 9, Huber sent Curiale a letter which contained
the Union’s newest wage proposals. Respondent did not re-
spond to this letter.
1. The 8(a)(1) allegations
On Friday, December 17, 2010, a group of employees pre-
sented a petition about collective bargaining to Respondent’s
managers. On the following Wednesday or Thursday, James
Grant, Respondent’s director of guest safety, called Eddie
Leroy Johnson, gaming floor person, at home. Grant told John-
son that what the employees had done was not against the rules
but that he would like to know in advance of any planned union
activity so that Respondent could schedule it so that the em-
ployees did not inundate a particular manager. Grant admitted
calling Johnson about the petition and telling him that the em-
ployees could do what they wanted as long as they followed
proper guidelines.
On the morning of January 1, 2011, bargaining unit employ-
ee Nelson Yip was working as a cocktail server in the Casino.
That morning Yip found a $100 bill on the floor and put that
bill in with his cash tray. At about 2 a.m. that morning, Yip was
called into an investigatory meeting by Peter Demarest, security
manager, and Buddy Jah, security supervisor. Manager Felipe
Guzman questioned Yip about whether he intended to keep the
money. Guzman said that he was going to do an investigation
and told Yip not to tell anybody and not to contact anyone
about the investigation. Guzman admitted that he told Yip not
to talk to any employees about the investigation.
In July 2011, several of Respondent’s employees demon-
strated in support of an employee who had been terminated.
The next day, employee Isadoro Saravia Ramos was called into
a meeting with Human Resources Manager Chris Mavroudis
and Sous Chef Jaime Menjivar. Menjivar acted as an interpret-
er as Ramos only spoke Spanish. Mavroudis asked what had
happened the day before. Ramos said that the union members
were there to support an employee who wanted his job back,
Mavroudis stated that he was concerned about the employees’
safety and that he was worried that the Union could bring in
people to make a ruckus. Ramos answered that as union mem-
bers, the employees protested legally. Mavroudis then ques-
tioned what else the Union was going to do. Ramos did not
answer that question.
The complaint alleges and Respondent admits that Respond-
ent maintained the following rules in its employee handbook:

(a) Unacceptable Behavior

Gossiping about other Team Members (including super-
visors, managers, directors, etc.)

(b) Team Member Conduct and Work Rules

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

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

(c) Solicitation, Distribution and Bulletin Boards

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

(d) Team Member Conduct and Work Rules

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

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

(e) Access

Team Members are not permitted in the back of the
house areas more than thirty (30) minutes prior to the
beginning of their shift or longer than thirty (30) minutes
following the end of their shift, except under the follow-
ing circumstances:
1. To conduct business with Human Resources;
2. Pre-arranged training sessions or orientations;
3. With the approval of a director, manager or supervi-
sor.

Respondent stipulated that the handbook contained these provi-
sions from August 2010 until about May 2011, when the em-
ployee handbook was rewritten and redistributed. The new
handbook does not contain these provisions.
2. The alleged changes to the Union’s access
to the Casino
The expired collective-bargaining agreement contains the
following provision regarding union access to the Casino:

Properly authorized Representatives of the Union shall be
permitted to enter the Employer’s premises through the team
member entrance in order to investigate the status of all em-
ployees and to investigate the conditions to see that the
Agreement is being enforced. Upon entering the premises,
Union Representatives shall notify the management that they
are on the premises. In the event it is necessary for the Union
Representative to visit the premise outside the normal busi-
ness hours (for example on the graveyard shift) the Repre-
sentative shall provide management with reasonable advance
notice of the visit.

It is understood that the Union Representative shall not con-
duct business on the Casino floor other than to advise an em-
ployee that they are on the premises. At all times, Union Rep-
resentatives shall conduct themselves in such a manner as to
ensure that there is no unreasonable interruption or interfer-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1366
ence with the duties of an employee or the Employer’s opera-
tion.

During the period 2004 through December 2010, the union
representatives entered through the front entrance of the Casi-
no. Union representatives checked in at the security station
when they entered the Casino and were escorted by a security
officer to the employee cafeteria in the “back of the house.”
According to the Union’s witnesses they were not required to
have an escort to move around the back of the house.
On December 17, 2010, Union Rrepresentatives Andrew
Dadko and Yulisa Elenes went to the Casino to meet with a
group of off-duty employees. When Dadko and Elenes entered
the Casino, they signed in at the security desk and obtained
their visitor badges and were escorted to the employee cafete-
ria. None of the employees were in the cafeteria. Elenes called
one of the employees and learned that the employees were on
the second floor. Dadko and Elenes proceeded to the second
floor employee breakroom. On the way, they passed by the
security guard. Dadko and Elenes began a discussion with
several employees. James Grant, Respondent’s director of
guest safety, entered the breakroom and asked Dadko and
Elenes to step out of the room and talk to him. Dadko and
Elenes refused this request. After several requests to go with
Grant, Dadko and Ellenes finally left the breakroom and re-
turned to the employee cafeteria.
Grant later spoke with Dadko and Ellenes in the cafeteria.
Grant told them they had to stay in the cafeteria. Grant asked if
they would stay in the cafeteria and Dadko answered, “[W]e’ll
see.” Thereafter, Dadko and Ellenes left after returning their
visitor badges.
On December 21, Curiale sent Huber a letter concerning
Dadko’s visit of December 17. Curiale stated that union repre-
sentatives were barred from entering the Casino until the parties
had a discussion regarding union conduct of visits. Curiale also
threatened to have Dadko arrested if he entered the Casino
again.
On December 27, Huber sent Curiale an email stating that
she wished to meet with Respondent. She also stated that Re-
spondent could not bar Dadko from its premises. Curiale re-
sponded that same day, stating that he would be out of the
country and would not be able to meet until January 11, 12, or
13. Huber responded that the date was too far off and that
someone else should appear for Respondent. Curiale responded
that there was nothing he could do.
On January 11, 2011, Huber sent Curiale an email setting
forth the Union’s account of the December 17 incident. She
denied that Dadko and Elenes had evaded security and denied
that Dadko was intimidating. When Huber met with Curiale on
January 11, Curiale stated that the union representatives needed
to have an escort to move from one place to another in the Ca-
sino. Curiale stated that the Union would have to notify the
Casino in advance of a visit; the union representatives would
have to ask for an escort to move from one place to another; the
Union would have to agree to Respondent’s 30-minute rule;
and that the Union agree not to assign Dadko to the Casino.
After a caucus, Huber said the Union would agree to advance
notice and to getting an escort to move around the Casino but
would not agree to the 30-minute rule. She also said the Union
could not agree to barring Dadko from the Casino.
On January 18 Curiale sent Huber an email about the access
issue. Curiale stated that he was not barring Dadko from par-
ticipating as a union representative, but only barring him from
the Casino. Curiale stated he would allow other union repre-
sentatives to access the Casino if they advised Respondent in
advance; they sign in; agree to be escorted to the place they
wish to go; they agree to ask for an escort to go to another part
of the Casino; and they agree to ask for an escort when they
leave the Casino. Further, Curiale asked the Union to agree
that its meetings would not require employees to enter 30
minutes before their shift or remain 30 minutes after their shift.
Huber stated that she would discuss the proposal with her team.
Huber responded by email on January 25, agreeing that the
Union would advise Respondent in advance of a visit; they
would sign in; they would ask for an escort; they would ask for
an escort to move from one place to another, and would ask for
an escort to leave the Casino.
On January 25, 2011, the parties met at Respondent’s train-
ing center. As this property is separate from the Casino, Dadko
was permitted to attend.
On February 2, 2011, Huber sent Curiale an email, agreeing
to advance notice and escort procedures but rejecting the 30-
minute rule.
On March 10, 2011, Union Representative Max Alper called
in advance and then checked in at the security desk. After be-
ing escorted to the employee cafeteria, Alper asked to be es-
corted to where the employee schedules were posted. The se-
curity guard stated that he had to check with management.
Mavroudis came to the cafeteria and told Alper that he could
not go to where the schedules were posted. Mavroudis offered
to email Alper the schedules.
On March 21, 2011, Alper called in advance and was escort-
ed to the employee cafeteria. Alper asked to be escorted to the
employee breakroom. Security Supervisor Buddy Jah said he
would have to check with Mavroudis. Jah returned and said
that Alper could not go to the breakroom. When Alper inquired
as to why he could not go, Jah said that was what he had been
told.
On March 24, 2011, Alper called in advance and checked in
with security when he arrived. Alper was met by Mavroudis
and Grant. Mavroudis asked the purpose of the visit. Alper
replied that he never in the past had to provide the purpose of
the visit. Mavroudis stated that if Alper did not provide the
purpose of the visit, he would not be allowed to enter the Casi-
no. Alper stated that he believed this was an unfair labor prac-
tice. Mavroudis directed Alper to call the Casino’s attorney if
he had any more questions.
On March 30, 2011, Alper called Mavroudis to inform him
that he would be visiting the Casino that day. Mavroudis
asked the purpose of the visit. Alper answered that he did not
believe that was a proper question. Alper informed Mavroudis
that he had a meeting with an employee. Mavroudis asked the
name of the employee and how long the meeting would last.
Alper said he would not answer those questions. Mavroudis
stated that if Alper did not tell him the purpose of the meeting,
the name of the employee, and the length of the meeting, Alper
LYTTON RANCHERIA OF CALIFORNIA 1367
would be denied access. Alper said he believed this was an
unfair labor practice.
On March 31, 2011, Alper and C-en Yu, a union intern, ar-
rived at the facility. They planned to meet with employee Isa-
doro Ramos. Alper had called earlier and left a message that he
was going to visit. Alper and Yu checked in at the security
desk and were told to wait. Security Supervisor Alex Lanier
told Alper that he had to speak with Mavroudis and that
Mavroudis would not be in until 9 a.m. Alper said that he had
called the day before and spoke with Mavroudis. Lanier said
that he had spoken with Mavroudis and was just following
orders. Alper and Yu gave back their visitor badges and went
outside. Once outside, Alper called Ramos and told him that he
was at the front entrance. Ramos was in uniform but not
scheduled to work for 20 minutes. When Ramos arrived at the
security desk, Alper stepped back inside to talk to him.
Lanier told Alper and Yu that they had to leave. Alper said
that what Lanier was doing was unlawful. Lanier told Ramos
to return to the Casino. Alper told Lanier that Ramos wanted to
meet with the Union. Ramos’ supervisor arrived and Ramos
left. Lanier then told Alper that he had to leave and that if he
did not, Lanier would call the police. Alper said that would be
unlawful. Alper and Yu then walked outside and waited for the
police.
When the police officer arrived he spoke with Lanier. Then
the police officer told Alper and Yu that they had to leave and
if they did not leave, Lanier would make a citizen’s arrest.
Alper and Yu left the property. Before they left, Lanier gave
them a form letter stating that they were banned from the Casi-
no.
On January 31, 2012, Curiale sent an email to Alper stating
that Union Representative Jessica Medina was barred from
Respondent’s property. Medina was barred based on an inci-
dent which occurred on December 7, 2011. A grievance meet-
ing was held on December 7 at Respondent’s training center,
separate and apart from the Casino. Alper and Medina attended
the meeting on behalf of the Union. After the meeting was
over, Alper attempted to talk with Mavroudis. Grant walked
over and Mavroudis walked away. Grant told Alper and Medi-
na that they needed to leave. Grant asked Alper and Medina to
leave four or five times before they finally left.
3. The information requests
The complaint alleges and Respondent admits that on the fol-
lowing dates, the Union requested in writing that Respondent
furnish it with the following information:

(a) January 5, 2011
A copy of [the] security tape that shows the incident
concerning employee Nelson Yip who was terminated
for allegedly failing to turn in money that he found on
the Casino floor.

(b) January 19, February 2, and March 7, 2011:
The method for calculating employee turnover and turn-
over rates for each year from 2005 to 2010.

(c) February 2 and 13, and March 7, 2011:
A copy of the security and badge procedures/require-
ments. . . . imposed by the City of San Pablo.

(d) February 13 and March 7, 2011:
(1) The total tip and service charge income for each
worker for the entire calendar year 2010.
(2) All reports, worksheets, filings and other docu-
ments related to the December 2010 IRS tip rate
and the IRS tips reported for all bargaining unit
employees, including but not limited to gaming
techs, gaming floor workers, bartenders, barbacks,
servers, and porters.

(e) March 7, 2011:
(1) In order to access the impact of the proposal, please
provide the total hours paid for Easter in 2010 and
2009 and the sign-in sheets or timecards for Memo-
rial Day 2010 and 2009.
(2) Please provide daily sign in [sic] sheets or time-
cards for the period between November 2010 and
February 2011, so we can assess how this change
in benefits eligibility would impact employees,
(3) Job titles of four named employees (Melody
Navarette Denate; Sachin Batajoo; Clayton Cox;
Victor M. Figueroa) if they are bargaining unit em-
ployees.
(4) Please also provide the list of employees with their
job titles and hire dates, who were enrolled in both
medical and pension during the period immediately
before January 2011.

(f) March 11, 2011:
(1) Schedules for all departments for the same period
(December 1, 2010 through February 10, 2011).
(2) Copy of Nelson Yip’s sales receipts for New
Year’s Day between 1a.m. and the end of his shift.
(3) An updated roster of employees with names, ad-
dresses, phone numbers, classifications, and date of
hire.

(g) June15, 2011:
(1) Information regarding a grievance involving em-
ployee Peung Phontavy;
(2) Employee personnel file.
(3) All surveillance tapes related to the incident.
(4) All paperwork, documents e-mails, memos, notes
and investigations related to all incidents related to
listening, following instructions, timing and plate
production and food quality from the past 12
months.

(h) June 15, 2011:
1. Information regarding a grievance involving em-
ployee Patricia Gomes
2. Schedules for all cocktail servers for the past 12
months
3. Section Assignments for al cocktail servers for the
past 12 months.

(i) August 25, 2011:
1. Information regarding the same grievance involv-
ing employee Patricia Gomes:
2. Schedules for all cocktail servers for the past 12
months.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1368
3. Section Assignments for all cocktail servers for the
past 12 months.
4. Cash out slips for all cocktail servers for the past 12
months.

(j) July 6 and July 13, 2011:
1. Information regarding a grievance involving em-
ployee Nirmani Kalakheti:
2. All paperwork, documents, e-mails, memos, notes
and investigations related to the separation.
3. All paperwork, documents, e-mails, memos notes
and investigation related to all bereavement leaves
from the past 3 years.
4. All paperwork, documents, e-mails, memos notes
and investigation related to all personal leaves from
the past 3 years.

(k) July 13 and 14, 2011:
Schedules for all unit employees for the months of June
and July 2011.

(l) August 25, 2011:
1. Information regarding sonority-based job bidding
and the hiring of part=time employees:
2. Schedules for all departments with Union repre-
sented employees for the past 12 months.

(m) August 25, 2011:
1. Information regarding a grievance about vacation
pay:
2. A list of employees who took vacation in the past 3
years, including name, classification (job title)
weekly base rate, average weekly pay for all weeks
worked by the employee during the year preceding
the vacation, amount paid for vacation.

(n) August 25, 2011:
1. Information regarding the hiring of part-time em-
ployees;
2. A list of all terminated employees in the past 12
months, including name, hire dates, termination
dates, classification (job title) and status (PT or
FT).
3. A list of all current employees.

Respondent had a security tape recording regarding the ter-
mination of employee Nelson Yip. Dadko requested to see the
tape recording in support of a grievance concerning the termi-
nation—Curiale and Mavroudis refused to turn over the tape.
In January, February, and March 2011, the Union requested
the method for calculating employee and turnover rates for each
year from 2005 to 2010. That information was not turned over
to the Union until February 2012.
The Union requested the security and badge procedures/re-
quirements imposed by the city of San Pablo. Respondent is an
Indian Casino and there are no city of San Pablo procedures or
requirements.
The Union requested information relating to the IRS’ tip
rate. Respondent turned over the tip rate negotiated with the
IRS but did not turn over the rest of the requested information.
The Union requested information regarding holiday pay.
Respondent provided some but not all of the information re-
quested on June 15. With respect to the Phontavy grievance,
the Respondent provided the information that it had. Respond-
ent did not provide information regarding the Gomes grievance.
Respondent provided the information regarding the Kalakheti
grievance. Respondent did not supply the schedules for em-
ployees for June and July 2011. Further, Respondent did not
furnish the schedules for all departments that were requested in
August 2011. Respondent did not furnish the information re-
quested about vacation pay. Finally, Respondent did not fur-
nish the information requested about the hiring of part-time
employees.
4. The alleged unilateral changes
In June 2011, Respondent distributed to part-time employees
a memorandum which, among other things announced that
beginning on July 1, 2011, these employees would be receiving
new benefits, including holiday pay and additional days off
without pay. After July 1, 2011, part-time employees began
receiving holiday pay for the first time. Respondent did not
notify the Union or afford the Union the opportunity to bargain
over this matter.
Respondent did not provide health benefits from March to
September 2011, to bargaining unit employees Isabel Garrido,
Al Balbuena, Rodolfo Trinidad, and Ali Challal. These em-
ployees worked 16 shifts a month during that period. The col-
lective-bargaining agreement states that Respondent must pro-
vide healthcare benefits to employees who work more than 16
shifts a month in the month preceding the month in which con-
tributions are due. When Respondent was notified by the Un-
ion of its failure to provide benefits for these employees, Re-
spondent reduced the number of shifts to 15 for these employ-
ees. Respondent contends that it never provided such benefits
for part-time employees.
B. Respondent’s Defense
Respondent contends that impasse was reached after the Un-
ion rejected its last, best, and final offer. Respondent contends
that the Union brought a barrage of information requests and
filed grievances to harass Respondent. Respondent contends
that its access rules and policies are for a legitimate business
reason.
III. ANALYSIS AND CONCLUSIONS
A. Respondent was Obligated to Bargain
The general rule is that when parties are engaged in negotia-
tions for a new agreement an employer’s obligation to refrain
from unilateral changes encompasses a duty to refrain from
implementation unless and until an overall impasse has been
reached on bargaining for the agreement as a whole. Pleas-
antview Nursing Home, 335 NLRB 96 (2001); citing Bottom
Line Enterprises, 302 NLRB 373 (1991). In Bottom Line En-
terprise, the Board recognized only two exceptions to that gen-
eral rule: “when a union engages in bargaining delay tactics and
“when economic exigencies compel prompt action,” 335 NLRB
at 374.
LYTTON RANCHERIA OF CALIFORNIA 1369
A genuine impasse exists when there is no realistic possibil-
ity that continuation of negotiations would be “fruitful” and
both parties believe that they are “at the end of their rope.”
Pratt Industries, 358 NLRB 414, 419 (2012). “Whether a bar-
gaining impasse exists is a matter of judgment, and bargaining
history, the good faith of the parties in negotiations, the length
of the negotiations . . . [t]he importance of the issue or issues as
to which there is disagreement, and the contemporaneous un-
derstanding to the parties as to the state of negotiations are all
relevant factors to be considered in deciding whether an im-
passe in bargaining existed.” Taft Broadcasting Co., 163
NLRB 475, 478 (1967). Since impasse is a defense to allega-
tions of bad-faith bargaining, it must be proven by the party
asserting it and it will not be lightly inferred. Sacramento Un-
ion, 291 NLRB 552, 556 (1988).
In the instant case, the parties bargained for 14 sessions from
November 2009 to January 2011. It was not until November
18, 2010, that the parties reached agreement on the healthcare
plan. At that time the Union told Respondent that it was only
agreeing to the healthcare plan and that all other issues were
still on the table. During the negotiations on November 24 and
December 16, 2011, there was no substantive discussion of
wages. The Union had come to the January 25, 2011 session
with the intent to bargain over wages and benefits. Respondent
had determined that it would demand a wage freeze and that it
would not move from that position. Respondent had deter-
mined that the Union would never agree to that wage proposal
and thus Respondent offered its last, best, and final offer. Re-
spondent assumed the parties were at impasse. The Union, on
the other hand, did not believe the Parties were at impasse and
wished to negotiate over wages and benefits. Respondent re-
fused to meet and bargain. Finally, on May 20, the Union
placed the last, best, and final offer to a membership vote. The
last, best, and final offer was rejected. The Union attempted to
bargain and Respondent refused.
Impasse over a single issue may create an overall bargaining
impasse that privileges unilateral action if that issue is of such
overriding importance to the parties that the impasse on that
issue frustrates the progress of further negotiations. CalMat
Co., 331 NLRB 1084, 1087 (2000). The party contending that
an impasse on a single critical issue justified its declaration of
impasse must demonstrate three things:

[F]irst the actual existence of a good-faith bargaining impasse;
second, that the issue as to which the parties are at impasse is
a critical issue; third, that the impasse on the critical issue led
to a breakdown in the overall negotiations – in short, that
there can be no progress on any aspect of the negotiations un-
til the impasse relating to the critical issue is resolved. [Rich-
mond Electrical Services, 348 NLRB 1001, 1003 (2006), cit-
ing CalMat Co., 331 NLRB at 1097.]

Here the parties put off negotiations on wages until the issue of
healthcare was resolved. In January 2011, when the Union was
prepared to bargain over wages and benefits, Respondent made
its last, best, and final offer. While the Union was willing to
negotiate, Respondent refused to negotiate any further. While
the parties may have been deadlocked on wages, Respondent
prematurely declared an impasse, while the Union was still
negotiating. I find that Respondent declared an impasse prior
to reaching impasse with the Union.
As stated above, the fact that Respondent believed that the
Union would never agree to Respondent’s wage proposals does
not establish an impasse. In light of the limited bargaining
about wages and the Union’s willingness to continue bargain-
ing, I cannot find the parties had reached a deadlock regarding
this issue.
When the union members rejected Respondent’s last, best,
and final offer, the parties were still not at impasse. The Union
clearly indicated it was willing to bargain. However, when the
parties met on June 24, Respondent refused to listen to any
union proposals.
1. The information requests
The general rule is that an employer has a statutory obliga-
tion to supply requested relevant information which is reasona-
bly necessary to the exclusive bargaining representative’s per-
formance of its responsibilities. Boise Cascade Corp., 279
NLRB 429 (1986).
It is well established that a union is entitled to whatever in-
formation is relevant and necessary to its representation of the
bargaining unit, not only for collective bargaining but for
grievance adjustment and contract administration. NLRB v.
Acme Industrial Co., 385 U.S. 432, 435–436 (1967); SBC Mid-
west, 346 NLRB 62, 64 (2005). In Detroit Newspaper Agency,
317 NLRB 1071, 1072 (1995), citing General Electric Co., 290
NLRB 1138, 1147 (1988), the Board held that “Once a union
has made a good-faith request for information, the Employer
must provide relevant information promptly, in useful form.”
The test used by the Board for determining whether a respond-
ent has supplied the information in a reasonable amount of time
is set forth in West Penn Power Co., 339 NLRB 587 (2003)
enfd. in pertinent part 349 F.3d 233 (4th Cir. 2005). Accord:
Earthgrains Co., 349 NLRB 389 (2007):

In determining whether an Employer has unlawfully delayed
responding to an information request, the Board considers the
totality of the circumstances surrounding the incident. Indeed,
it is well established that duty to furnish requested information
cannot be defined in terms of a per se rule. What is required
is a reasonable good faith effort to respond to the request as
promptly as circumstances allow. In evaluating the prompt-
ness of the response, the Board will consider the complexity
and extent of information sought, its availability, and the dif-
ficulty in retrieving the information.

Respondent contends that the Union filed grievances and in-
formation requests to harass Respondent. However, the evi-
dence establishes that the information sought was reasonably
related to the union grievances.
The tape recording regarding the termination of employee
Nelson Yip would be relevant to a grievance concerning the
termination. Respondent did not turn over the tape recording
because it believed it was irrelevant. However, Respondent
could not unilaterally make that determination. The infor-
mation concerning employee turnover was not given to the
Union for over a year. Respondent does not contend that the
information was not provided due to a mistake. The Union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1370
requested information regarding the requirements of the city of
San Pablo. However, no such requirements exist. Thus, Re-
spondent had no information to provide.
The Union requested documents related to the IRS’ tip rate.
Respondent did not provide the requested documents. The
Union sought information in regard to bargaining over holiday
pay and medical benefits. Respondent did not provide the in-
formation because it felt that it was being harassed. The Union
sought information regarding employee schedules. The Union
sought such information to investigate a potential grievance.
Further, the Union sought an updated roster of employees. Re-
spondent failed to furnish such information.
The Union requested information regarding a grievance in-
volving employee Peung Phontavy. Respondent only provided
what it deemed relevant and did not provide all the information.
Respondent could not unilaterally decide what is relevant. The
Union sought information regarding the grievance of employee
Patricia Gomes. Respondent did not provide the information,
allegedly, because it provided an email allegedly establishing
that Gomes was not discriminated against. Again, Respondent
cannot unilaterally determine the relevance of the information
sought.
The Union sought information regarding the grievance of
employee Kalakheti. Respondent again unilaterally decided
that the information was not relevant. The Union requested the
schedules for the months of June and July 2011. Such infor-
mation is presumptively relevant. Respondent refused to pro-
vide the information unless the Union alleged a violation of the
contract. The Union could request the information to determine
whether or not to file a grievance.
The Union sought information regarding seniority-based job
bidding in support of a grievance. Respondent did not supply
this information. The Union sought information regarding the
payment of vacation pay for grievance purposes. Respondent
did not provide this information.
The Union sought information regarding a grievance con-
cerning the hiring of part-time rather than full-time employees.
Respondent determined that there was no merit to the grievance
and did not furnish the information. Respondent could not
unilaterally make that determination.
In summary, after January 31, 2011, Respondent did not
provide information because it believed the requests were made
for harassment purposes.
2. The unilateral changes
Respondent issued a memorandum on June 8, 2011, granting
part-time employees holiday pay and additional days off with-
out pay. Respondent did not notify or bargain with the Union
about these changes.
Under the Act, before an employer may effect a material and
substantial changes in the employees’ wages, hours, and other
conditions of employment, it must notify the employees’ col-
lective-bargaining representative and afford the representative
an opportunity to bargain about the change. NLRB v. Katz, 369
U.S. 736 (1962); Daily News of Los Angeles, 315 NLRB 1236,
1237–1238 (1994), enfd. 73 F.3d 406 (D.C. Cir. 1996). The
notice given to the union must be sufficient to allow a meaning-
ful chance to bargain before the change is implemented. Mercy
Hospital of Buffalo, 311 NLRB 869. 873 (1993); Intersystems
Design Corp., 278 NLRB 759 (1986). Accordingly, I find that
Respondent violated Section 8(a)(5) and (1) by instituting these
changes.
During the period from March to September 2011, four em-
ployees who were classified as part-time employees worked 16
or more shifts per month. Respondent contends that these em-
ployees were part-time employees and therefore, not eligible
for health benefits. The Agreement provided that Respondent
provide healthcare benefits to employees who work more than
16 shifts a month, in the month preceding the month in which
contributions are due. When the Union questioned the status of
these employees, Respondent unilaterally reduced the number
of shifts worked by the employees. Respondent did so without
notice to or bargaining with the Union.
3. Union access
Board law is well settled that a union’s access to represent
employees on an employer’s premises is a mandatory subject of
bargaining. American Commercial Lines, 291 NLRB 1066,
1072 (1988). In addition, a union access provision in a collec-
tive-bargaining agreement is a term and condition of employ-
ment that survives the agreement’s expiration. Turtle Bay Re-
sorts, 353 NLRB 1242 (2009).
Here, the Respondent had a legitimate rule requiring an es-
cort to move around the Casino. However, Respondent unilat-
erally required the Union to notify it of the purpose of the meet-
ing. Respondent unilaterally conditioned access on the Union
having a scheduled meeting with an employee.
C. The 8(a)(1) Allegations—Interrogation
The Board’s test for determining whether interrogation of
employees concerning their union activities or the union activi-
ties of other employees is set out in Rossmore House, 269
NLRB 1176, 1177 (1984):

Whether under all of the circumstances the interrogation rea-
sonably tends to restrain, coerce, or interfere with rights guar-
anteed by the Act.

The Board has said that a totality of the circumstances test must
be applied, even when the interrogation is directed to unit
members whose union sympathies are unknown to the employ-
er. Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). Some
of the considerations taken into account by the Board in deter-
mining whether, under the totality of the circumstances, the
interrogation was coercive include: Whether the employee in-
terrogated was an open and active union supporter; whether
there is a history of employer hostility towards or discrimina-
tion against union supporters, whether the questions were gen-
eral and nonthreatening, and whether the management official
doing the questioning had a casual and friendly relationship
with the employee being questioned. Sunnyvale Medical Clinic,
supra at 1218:

I find that the interrogation of employee Isadoro Ramos, vio-
lated Section 8(a)(1) of the Act. Here, the employees had en-
gaged in protected action and the questions pertaining to the
Union’s future action tended to restrain and coerce employees
in violation of Section 8(a)(1). I find by this conduct, in the
LYTTON RANCHERIA OF CALIFORNIA 1371
context of unlawful suspensions, Respondent violated Sec-
tion 8(a)(1) of the Act.

Security Manager Felipe Guzman instructed employee Nelson
Yip not to talk to anyone about the investigation affecting his
appointment. This action violated the Act because it tended to
interfere with Yip’s right to concertedly act with other employ-
ees concerning his possible discipline. Fresenius USA Mfg.
Co., 358 NLRB 1261 fn.1 (2012); Mobil Oil Exploration &
Producing, U.S., 325 NLRB 176, 178 (1997).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to bargain with the Union.
4. Respondent violated Section 8(a)(5) and (1) of the Act by
unilaterally establishing rules that prohibit union access to the
Casino.
5. Respondent violated Section 8(a)(5) and (1) of the Act by
unilaterally announcing and implementing new benefits for
part-time employees.
6. Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to provide contractual health benefits for four unit
employees.
7. Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to provide relevant information necessary for bargain-
ing and grievance handling.
8. Respondent violated Section 8(a)(1) of the Act by coer-
cively interrogating an employee.
9. Respondent violated Section 8(a)(1) of the Act by telling
an employee not to discuss his investigation with other employ-
ees.
10. Respondent’s conduct above is an unfair labor practice
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
REMEDY
Having found Respondent engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action to effectu-
ate the purposes and policies of the Act.
[Recommended Order omitted from publication.]