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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 13, 2003 Decided July 11, 2003
No. 01-1433
ARK LAS VEGAS RESTAURANT CORPORATION,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
CULINARY WORKERS UNION, LOCAL 226,
LOCAL JOINT EXECUTIVE BOARD AND
BARTENDERS UNION, LOCAL 165, LOCAL JOINT EXECUTIVE BOARD,
INTERVENORS
On Petition for Review and Cross–Application
for Enforcement of an Order of the
National Labor Relations Board
Celeste M. Wasielewski argued the cause and filed the
briefs for petitioner. Michael A. Taylor entered an appear-
ance.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Michael H. Carlin, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Arthur F. Rosenfeld, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Frederick L. Corn-
nell, Jr., Attorney. Siobhan M. Kelly, Attorney, entered an
appearance.
Before: HENDERSON, RANDOLPH, and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Ark Las Vegas Restaurant Cor-
poration petitions for review of a decision and order of the
National Labor Relations Board (NLRB) finding that Ark
committed unfair labor practices by threatening, disciplining,
and terminating employees for engaging in protected union
activities, and by maintaining and enforcing unlawful work
rules. We deny Ark’s petition and enforce the Board’s order
in all respects except one.
I
Ark is a tenant of the New York New York Hotel and
Casino, a hotel and gaming facility in Las Vegas, Nevada.
Ark operates three public restaurants inside New York New
York. It also runs a fast food court, is responsible for
banquet functions and room service, and maintains an em-
ployee dining room open only to employees of Ark, the hotel,
and one other employer. On January 2, 1997, Ark com-
menced around-the-clock operations seven days per week,
employing about 900 persons.
Efforts at unionization began almost as soon as the compa-
ny started hiring. In a letter dated March 11, 1997, thirty
employees identified themselves to Ark Vice President Paul
Gordon as members of the Union Volunteer Organizing Com-
mittee. The Committee stated that it had ‘‘embarked on a
campaign to organize our co-workers’’ into the Culinary
Workers Union, Local 226, and Bartenders Union, Local 165
(collectively, the ‘‘Union’’). At the same time, committee
3
members and other employees began wearing union buttons
on their work clothes. Over the next several months, Ark
disciplined or terminated eight union supporters.
On September 17, 1997, the Board’s General Counsel,
acting on charges filed by the Union, issued a consolidated
complaint alleging that Ark committed unfair labor practices
in violation of the National Labor Relations Act (NLRA), 29
U.S.C. § 151 et seq., by threatening, disciplining, and termi-
nating employees for protected union activities. The com-
plaint also alleged that four of Ark’s work rules, published in
the company’s employee handbook, violated the NLRA.1 Af-
ter a seven-day hearing, an Administrative Law Judge (ALJ)
sustained the charges that are the subject of this petition.
With some modifications, the Board affirmed and, inter alia,
ordered Ark to reinstate and to make whole the individuals it
had unlawfully terminated. Ark Las Vegas Rest. Corp., 335
N.L.R.B. No. 97, 2001 WL 1149038 (Sept. 25, 2001).
Ark now petitions for review. It does not contest some of
the NLRB’s unfair labor practice determinations, and we
therefore uphold those determinations without further discus-
sion. See W.C. McQuaide, Inc. v. NLRB, 133 F.3d 47, 49
(D.C. Cir. 1998); Grondorf, Field, Black & Co. v. NLRB, 107
F.3d 882, 885 (D.C. Cir. 1997). In Part II, we consider Ark’s
challenges to the Board’s findings and remedial order regard-
ing the company’s adverse employment actions and threats.
In Part III, we address Ark’s attack on the Board’s determi-
nations regarding the company’s work rules.
1 All of the allegations charged violations of NLRA § 8(a)(1),
which makes it an unfair labor practice ‘‘to interfere with, restrain,
or coerce employees in the exercise of’’ their rights to form, join, or
assist labor organizations. 29 U.S.C. § 158(a)(1); see id. § 157.
The allegations concerning adverse employment actions (the disci-
plinary sanctions and terminations) also charged violations of
NLRA § 8(a)(3), which makes it an unfair labor practice ‘‘by
discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage mem-
bership in any labor organization.’’ Id. § 158(a)(3).
4
II
Ark disputes the Board’s findings that the company took
unlawful adverse actions and made unlawful threats on the
ground that those findings are not supported by substantial
evidence. Our role in reviewing such a claim is limited.
Tasty Baking Co. v. NLRB, 254 F.3d 114, 124 (D.C. Cir.
2001). We must uphold the Board’s findings as long as they
are ‘‘supported by substantial evidence on the record consid-
ered as a whole.’’ 29 U.S.C. § 160(e). In making that
determination, ‘‘we ask only whether on this record it would
have been possible for a reasonable jury to reach the Board’s
conclusion, and in so doing we give substantial deference to
the inferences drawn by the NLRB from the facts.’’ Ante-
lope Valley Bus Co. v. NLRB, 275 F.3d 1089, 1093 (D.C. Cir.
2002) (internal quotation marks omitted). Moreover, we
‘‘must accept the ALJ’s credibility determinations TTT , as
adopted by the Board, unless they are patently insupporta-
ble.’’ Tasty Baking, 254 F.3d at 124 (internal quotation
marks omitted).
After reviewing the record in detail, we conclude that
substantial evidence supports each of the contested findings.
In the following sections we provide only illustrative exam-
ples. We address the adverse employment actions in Part
II.A, and the threats in Part II.B. In Part II.C, we address
Ark’s challenge to a portion of the Board’s remedial order.
A
It is well settled that an employer violates the NLRA by
taking an adverse employment action in order to discourage
union activity. Tasty Baking, 254 F.3d at 125; see Gold
Coast Rest. Corp. v. NLRB, 995 F.2d 257, 264–65 (D.C. Cir.
1993). The central question is the employer’s motivation in
taking the adverse action, and in addressing that question the
NLRB uses what is known as the Wright Line test. See
Wright Line, 251 N.L.R.B. 1083, 1089 (1980), enforced, 662
F.2d 899 (1st Cir. 1981); see also NLRB v. Transportation
Mgmt. Corp., 462 U.S. 393, 401–04 (1983) (approving the
Wright Line test). Under that test, ‘‘the General Counsel is
required to make a prima facie showing sufficient to support
5
the inference that protected [i.e., union-related] conduct was a
motivating factor in the TTT adverse action.’’ TIC–The In-
dustrial Co. Southeast, Inc. v. NLRB, 126 F.3d 334, 337 (D.C.
Cir. 1997) (internal quotation marks omitted). In determin-
ing whether the employer had a discriminatory motive, ‘‘the
NLRB may consider such factors as the employer’s knowl-
edge of the employee’s union activities, the employer’s hostili-
ty toward the union, and the timing of the employer’s action.’’
Vincent Indus. Plastics, Inc. v. NLRB, 209 F.3d 727, 735
(D.C. Cir. 2000) (internal quotation marks and alteration
omitted). ‘‘Once a prima facie case has been established, the
burden shifts to the company to show that it would have
taken the same action in the absence of the unlawful motive.’’
Tasty Baking, 254 F.3d at 126.
Substantial evidence supports the NLRB’s finding of a
prima facie case that protected conduct was a motivating
factor in all of the adverse employment actions at issue here.
Each of the eight employees involved was a known union
activist or sympathizer: four of the eight had signed the
March 11 organizing letter, and all had worn pro-union but-
tons. In addition, the Board reasonably concluded that Ark
harbored hostility toward the union. For example, on March
12, after asking waiter Saam Naghdi what kind of button he
was wearing and being told that it was a button supporting
the union, restaurant general manager Christina Flores told
Naghdi: ‘‘I don’t think you can wear that hereTTTT I don’t
think they would like it.’’ J.A. at 304–05. Ark supervisors
twice threatened employee Clara Montano for wearing a
union button, once saying that it ‘‘could probably cause some
discomfort among co-workers’’ and ‘‘that that would be bad
for [her].’’ J.A. at 82–84. And after observing line cook
Randy Kiddy’s union button, supervisor Don Meza told him:
‘‘That’s not goodTTTT That’s gonna cause you problemsTTTT
[T]hey don’t like that kind of thing around here.’’ J.A. at 139.
When Kiddy asserted his right to wear the button, Meza tore
it off his shirt, threw it on the floor, and walked away
laughing.2
2 While Ark contests the employees’ testimony concerning some
of these incidents (as well as others recounted in the following
6
The timing of many of the adverse actions provides further
support for the Board’s inference of discriminatory animus.
For example, supervisor Bobbie Rihel fired Sandra Jordan
only minutes after Jordan refused to remove her union
button. Similarly, line cook Ron Isomura’s chef discharged
him less than an hour after Ark supervisors had censured
Isomura for distributing union literature in the employee
locker room while off-duty. Cooks Jorge Aguilar and David
Schafer were terminated just weeks after they began to wear
pro-union buttons. Ark terminated Vertis Manuel one day
after he was cited in a local newspaper article for his pro-
union views. And dishwasher Jesus Serna’s supervisor fired
him only twelve hours after he participated in a union rally —
and after the supervisor made derisive comments about Ser-
na’s participation in the rally.
There is also substantial evidence to support the Board’s
conclusion that Ark failed to meet its burden of showing it
would have taken the contested adverse actions in the ab-
sence of an anti-union motive. For example, the Board
reasonably declined to credit general manager Flores’ claim
that she had disciplined Naghdi for failing to keep the
restaurant’s salt and pepper shakers filled, since she admitted
that she had personally approved Naghdi’s performance of
that task when he left for the day and that she did not notice
that the shakers were low until hours later. Rihel’s shifting
explanations for terminating Jordan — first saying that work
was slow and only later claiming that Jordan’s performance
problems and absenteeism motivated the decision — under-
mine Ark’s nondiscriminatory explanation for that adverse
action. See Property Res. Corp. v. NLRB, 863 F.2d 964, 967
paragraphs), we cannot say that any of the ALJ’s credibility deter-
minations are ‘‘patently insupportable.’’ See Tasty Baking, 254
F.3d at 124. Ark does not dispute the Board’s findings regarding
other incidents, including the incident involving Kiddy. Ark’s fail-
ure to contest those findings does not remove them from the case,
however, and they remain relevant as ‘‘strong direct evidence of
[petitioner’s] hostility toward unionization.’’ NLRB v. Talsol Corp.,
155 F.3d 785, 793–94 (6th Cir. 1998); see U.S. Marine Corp. v.
NLRB, 944 F.2d 1305, 1314–15 (7th Cir. 1991) (en banc).
7
(D.C. Cir. 1988). Likewise, the Board reasonably disbelieved
Ark’s proffered explanation for Aguilar’s termination, down-
sizing, in light of the company’s initial effort — subsequently
abandoned — to justify it on the grounds of nonexistent
performance shortcomings. And Ark’s claim that the same
downsizing led to the termination of line cook Schafer, a
model employee with extensive experience, is contravened by
the fact that the employer kept on each of the other three line
cooks doing the same work — two of whom had been hired
after him.
In sum, we conclude that the Board’s findings regarding
discriminatory discipline and discharge are supported by
substantial evidence on the record considered as a whole.
B
Ark also challenges the Board’s findings that the company
made unlawfully coercive statements to two employees.
NLRA § 8(a)(1), 29 U.S.C. § 158(a)(1), ‘‘forbids coercive
statements that threaten retaliation against employees for the
exercise of their rights to organize and to participate in union
activities.’’ Tasty Baking, 254 F.3d at 124; see Southwire Co.
v. NLRB, 820 F.2d 453, 457 (D.C. Cir. 1987); supra note 1.
‘‘An employer’s statement violates the NLRA if, considering
the totality of the circumstances, the statement has a reason-
able tendency to coerce or to interfere with those rights.’’
Tasty Baking, 254 F.3d at 124; see Avecor, Inc. v. NLRB,
931 F.2d 924, 931 (D.C. Cir. 1991). In reviewing the Board’s
determination that a statement was coercive, we ‘‘recognize
the Board’s competence in the first instance to judge the
impact of utterances made in the context of the employer-
employee relationship.’’ NLRB v. Gissel Packing Co., 395
U.S. 575, 620 (1969).
The Board found that an Ark manager made coercive
statements to Ron Isomura during an orientation session that
the company conducted on March 22, 1997. As noted above,
Isomura had previously been unlawfully discharged for dis-
tributing union material in Ark’s employee locker room. Vice
President Gordon reinstated Isomura, and when he returned
8
to work he was given a ‘‘mini-orientation’’ by supervisor Paul
Savoy. Savoy told Isomura that it was the ‘‘timing’’ of his
discharge that had been wrong, and Savoy repeatedly asked
Isomura why he and the Union were ‘‘spreading propaganda
about Ark.’’ J.A. at 240. Then, pulling out one of the
Union’s flyers, Savoy demanded to know how Ark could pay
union wages and benefits. Id. The NLRB reasonably con-
cluded that, under these circumstances, Savoy’s ‘‘orientation’’
of Isomura was an act of coercion. See Perdue Farms, Inc.,
Cookin’ Good Div. v. NLRB, 144 F.3d 830, 835 (D.C. Cir.
1998); Southwire, 820 F.2d at 456–57.3
We also uphold the Board’s finding that supervisor Salva-
dor Ortiz attempted to interfere with employee Clara Monta-
no’s right to discuss the union with her co-workers. Montano
testified that Ortiz instructed her that she ‘‘was banned from
talking to [her] co-workers’’ and ‘‘wasn’t supposed to talk to
anybody, not even to get their phone number or to ask them
out or go to any parties with them.’’ J.A. at 89. He refused
to explain why. Although Ark disputes that Ortiz gave this
instruction, the ALJ found Ortiz’ denial lacking in credibility,
335 N.L.R.B. No. 97, at 18, and there is nothing unreasonable
about that determination. See Tasty Baking, 254 F.3d at 124.
The Board concluded that the more probable explanation for
the instruction was that Ortiz and his fellow supervisors had
seen Montano wearing her union pin and discussing the union
with colleagues, and that they ‘‘wanted to see if they could
stop her from further efforts to persuade fellow employees to
join with her and the others.’’ 335 N.L.R.B. No. 97, at 18.
While this may not be the only possible interpretation of
Ortiz’ comments, we ‘‘may not reject [the Board’s finding]
3 The Board found that Ark further coerced Isomura during this
orientation when Savoy demanded that he adhere to the company’s
prohibition on solicitation and distribution in the employee dining
room, as well as to its no-access rules. In Part III.A below, we
uphold the Board’s determination that the company’s rule banning
solicitation and distribution was unlawful, and we therefore uphold
the associated coercion charge. However, because we remand the
determination regarding Ark’s no-access rules, see infra Part III.B,
we remand the coercion charge associated with those rules as well.
9
simply because other reasonable inferences may also be
drawn.’’ Tasty Baking, 254 F.3d at 125.
C
Finally, Ark argues that the Board’s reinstatement and
make-whole remedy is impermissible as applied to Isomura,
because the company has already made him whole: Ark
contends that it voluntarily reinstated Isomura with full back-
pay after unlawfully discharging him, and that although it
subsequently discharged him again, this time it did so for
lawful — and unrelated — reasons. It is, of course, possible
that Isomura is not entitled to any more relief than he has
already obtained. But the Supreme Court has ‘‘long recog-
nized the Board’s normal policy of modifying its general
reinstatement and backpay remedy in subsequent compliance
proceedings as a means of tailoring the remedy to suit the
individual circumstances of each discriminatory discharge.’’
Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 902 (1984). Thus, we
‘‘leav[e] until the compliance proceedings more specific calcu-
lations as to the [relief], if any, due.’’ Id. (emphasis added).
III
The Board also found that several provisions of Ark’s
employee handbook violated NLRA § 8(a)(1). First, until it
was revised in mid-March 1997, the handbook banned em-
ployees from wearing buttons, badges, or emblems, except for
those issued by the company, in public areas. See J.A. at 970.
Second, Ark banned the solicitation of employees and the
distribution of literature in working areas, which ‘‘[f]or this
purpose’’ Ark defined as including the employee dining room.
Id. at 1000. Finally, the company required employees to
report to the ‘‘property’’ no more than thirty minutes before
beginning their shifts and to leave the ‘‘property’’ within
thirty minutes after finishing their shifts. Id. at 997. It also
forbade an employee from returning to the ‘‘premises, other
than as a guest,’’ without a supervisor’s preauthorization. Id.
at 998. Violation of any of these rules subjected an employee
to discipline and possible termination. We consider the but-
10
ton and non-solicitation rules in Part III.A, and the so-called
‘‘no-access’’ rules in Part III.B.
A
Ark does not dispute the NLRB’s determination that the
company’s original ban on wearing unauthorized ‘‘buttons,
badges, or emblems’’ in public areas violated § 8(a)(1). See
Republic Aviation Corp. v. NLRB, 324 U.S. 793, 802 n.7
(1945); Pioneer Hotel, Inc. v. NLRB, 182 F.3d 939, 946 (D.C.
Cir. 1999). Instead, Ark claims that its rescission of the rule
constituted an adequate self-remedy under the Board’s deci-
sion in Passavant Mem’l Area Hosp., 237 N.L.R.B. 138
(1978).
As noted above, on March 12, 1997, waiter Saam Naghdi
wore a union button to work. After learning of the button’s
message, general manager Christina Flores gave Naghdi a
written warning for violating company policy and sent him
home. While professing his belief that the company’s button
rule was lawful, Vice President Gordon nonetheless voided
Naghdi’s warning, paid him for the time he missed, and
rescinded the rule. Along with the employees’ next pay-
checks, Ark distributed a revision of the employee handbook
that deleted ‘‘the portion of the old policy prohibiting employ-
ees from wearing buttons, badges or emblems.’’ J.A. at 1030.
An accompanying notice stated: ‘‘The company assures you
that it will not in any other manner interfere with the rights
you and other employees have which are protected by the
National Labor Relations Act.’’ Id.
For an employer’s repudiation to relieve him of liability for
unlawful conduct, the repudiation must be timely, specific,
and unambiguous, and — most relevant for this petition —
the employer must admit wrongdoing and refrain from com-
mitting future violations. Passavant, 237 N.L.R.B. at 138–39;
see Sam’s Club, A Division of Wal–Mart Corp. v. NLRB, 141
F.3d 653, 661 (6th Cir. 1998); General Indus. Employees
Union, Local 42 v. NLRB, 951 F.2d 1308, 1312 n.1 (D.C. Cir.
1991); Holly Farms Corp., 311 N.L.R.B. 273, 274 (1993),
enforced, 48 F.3d 1360 (4th Cir. 1995), aff’d on other grounds,
11
517 U.S. 392 (1996). Ark, however, never admitted wrongdo-
ing with respect to the button policy. Although the notice
that accompanied the amendment of the employee handbook
stated that the company would ‘‘not in any other manner
interfere’’ with employees’ labor rights, J.A. at 1030, Vice
President Gordon himself continued to insist that the original
policy was legitimate, see J.A. at 366; Ark Br. at 5.
Moreover, the Board also reasonably found that Ark con-
tinued to enforce the unlawful restriction notwithstanding its
formal rescission. This was evidenced by the threat made
against Montano for wearing a union button on March 16,
1997, just days after Gordon had reinstated Naghdi and
purportedly rescinded the button ban.4 Continued enforce-
ment was further evidenced by supervisor Rihel’s demand
that Sandra Jordan remove her union button on May 27. We
conclude that the Board reasonably found that ‘‘the rule was
never effectively repudiated by the publication/rescission of
the rule and [that] there was no admission of wrongdoing, a
failure which may have contributed to the continued ad hoc
enforcement’’ of the rule despite its formal rescission. 335
N.L.R.B. No. 97, at 6.
With respect to Ark’s rule barring solicitation of employees
and distribution of literature in the employee dining room, the
employer does not dispute the Board’s declaration that it has
traditionally held that an area like the dining room ‘‘is a
nonwork area in which off-duty employees may distribute
union literature or solicit union membership of other off-duty
employees,’’ id. at 7. See Ark Br. at 25; see also NLRB v.
Baylor Univ. Med. Ctr., 439 U.S. 9, 9–10 (1978) (per curiam).
4 At oral argument, Ark’s counsel contended that the Montano
incident occurred prior to Ark’s repudiation, because the company’s
notice to employees was delayed until the first paychecks issued
after the March 12 Naghdi incident. This contention is weakened
by Ark’s inability to show that employees did not receive their
paychecks and notice prior to March 16. The argument is, in any
event, waived because it was not raised in Ark’s briefs. See Corson
& Gruman Co. v. NLRB, 899 F.2d 47, 50 n.4 (D.C. Cir. 1990); C.J.
Krehbiel Co. v. NLRB, 844 F.2d 880, 883 n.1 (D.C. Cir. 1988).
12
Rather, Ark argues that it intended — and that its employees
understood — that the rule only applied to soliciting or
distributing materials to on-duty workers. The rule, howev-
er, was not so limited on its face:
[E]mployees may not distribute literature or printed
materials of any kind, sell merchandise, solicit financial
contributions, or solicit for any other cause during work-
ing timeTTTT Furthermore, employees may not distrib-
ute literature or printed material of any kind in working
areas at any time. For this purpose, the Employee
Cafeteria is considered a working areaTTTT
J.A. at 1000. Nor did supervisor Savoy mention this limita-
tion when he instructed Isomura, during his mini-orientation,
that he was not to distribute materials or solicit in the
employee dining room. Accordingly, we uphold the Board’s
determination that the non-solicitation rule violated NLRA
§ 8(a)(1).5
B
Finally, Ark challenges the ALJ’s determination (affirmed
by the Board without comment) that the rules forbidding
employees from ‘‘[r]eporting to property more than 30 min-
utes before a shift is to start or staying on property more
than 30 minutes after a shift ends,’’ and from ‘‘[r]eturning to
the Company’s premises, other than as a guest, during un-
scheduled hours’’ unless authorized by a supervisor, J.A. at
997–98, violated the NLRA. The ALJ determined that the
word ‘‘premises,’’ as well as ‘‘the word ‘property’ in context
appear[ ] to refer to the entire hotel, casino, outside grounds,
and parking lot complex.’’ 353 N.L.R.B. No. 97, at 7. Hold-
5 Ark’s briefs suggest that the Board’s decision regarding the
non-solicitation rule was limited to its application in the employee
dining room. See Ark Br. at 25. The NLRB clearly determined,
however, that the company’s rule was also unlawful as applied to
off-duty workers in the employee locker room. See 335 N.L.R.B.
No. 97, at 7. Ark does not present any argument against that
determination, and we therefore uphold it without further discus-
sion.
13
ing that such a broad no-access rule ‘‘seems to have little
purpose in the context of [Ark’s] business other than to
prevent employees from communicating to each other as they
change shifts,’’ the ALJ found it to violate NLRA § 8(a)(1).
Id. at 8. In support, the ALJ cited Tri-County Medical
Center, Inc., in which the Board set forth the following test
for determining the legality of certain access restrictions:
[S]uch a rule is valid only if it (1) limits access solely with
respect to the interior 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 activityTTTT [E]xcept where justified
by business reasons, a rule which denies off-duty employ-
ees entry to parking lots, gates, and other outside non-
working areas will be found invalid.
222 N.L.R.B. 1089, 1089 (1976).
Pointing to the last sentence of this quotation, counsel for
the Board defends the ALJ’s opinion on the ground that Ark
failed to provide sufficient business justification for a rule
that denied its off-duty employees entry to the area outside
Ark’s leasehold — including the surrounding hotel, casino,
and parking lot. We agree that if Ark had such a rule, the
justifications the employer offered would not support it. Ark
argues that the access restrictions were necessary to reduce
exposure to liability for workers’ compensation claims and to
facilitate supervision of its hundreds of employees. The
Board has made clear, however, that to justify an access
restriction under Tri-County, an employer may not merely
rely on ‘‘vague’’ and ‘‘generalized’’ assertions, but must pro-
vide evidence to support its claimed need. United Parcel
Serv., Inc., 318 N.L.R.B. 778, 787–88 (1995), enforced, 92 F.3d
1221 (D.C. Cir. 1996). At oral argument, counsel for Ark
conceded that there is no evidence in the record that the
presence of off-duty employees has in the past, or would in
the future, expose Ark to greater workers’ compensation
liability. The only evidence Ark’s counsel proffered in sup-
port of the employer’s alleged need to exclude off-duty em-
14
ployees in order to facilitate supervision of on-duty employees
was a single case in which Isomura distributed union materi-
als to another employee who was late for his shift; but there
is no evidence that Isomura was the cause of the other
employee’s tardiness.
The problem with Board counsel’s argument, however, is
that it is doubtful that Ark’s no-access rules actually barred
off-duty Ark employees from the surrounding hotel, casino,
and parking lot — or even from Ark’s public restaurants.
Only a few pages before the rules in question, the employee
handbook states:
All Ark Las Vegas employees are welcome to use the
gambling facilities, when off-duty, at the Hotel. That is
the explicit policy of New York–New York Hotel &
CasinoTTTT All of our employees, likewise, are welcome
to dine at our restaurant outlets.
J.A. at 982. Moreover, in two other cases involving the New
York New York Hotel and Casino, decided just two months
before the instant case, the Board found that New York New
York ‘‘permits, even encourages, off-duty employees of Ark to
visit and patronize the casino and the restaurants in the
complex and to use routes open to the public TTT to enter or
exit,’’ New York New York Hotel, LLC, 334 N.L.R.B. 762, 767
(2001), and that Ark employees are ‘‘invited to spend off-duty
hours using the facilities,’’ New York New York Hotel, LLC,
334 N.L.R.B. 772, 778 (2001).6 It would be surprising if Ark’s
work rules were truly intended to bar its employees from
6 In a consolidated petition for review of those decisions, Board
counsel repeatedly advised this court that New York New York
does not bar off-duty Ark employees from its complex. See Brief
for the NLRB at 8, 25, 34, 38, New York New York, LLC v. NLRB,
313 F.3d 585 (D.C. Cir. 2002). We accepted those representations,
and stated: New York New York ‘‘permits Ark employees, when
they are off-duty, to visit and patronize the casino and restaurants,
and to enter the complex through [its] public entrances, but they
may not wear their uniforms, and the bars are off-limits at all
times.’’ New York New York, 313 F.3d at 586.
15
accepting these express invitations made by both Ark and
New York New York.
The NLRB appears to be hopelessly confused regarding
the areas to which the no-access rules applied. The brief of
Board counsel suggests that only outside areas were of
concern: specifically, the ‘‘parking lots and other, outside
nonworking areas.’’ NLRB Br. at 26–27. Yet, as we have
noted, these are precisely the areas that do not appear to
have been covered at all. The ALJ’s opinion suggests con-
cern that Ark’s no-access rules also applied to ‘‘nonwork areas
such as a locker room or restaurant.’’ 335 N.L.R.B. No. 97,
at 8. But the ALJ generally used the word ‘‘restaurant’’ to
refer to one of the public restaurants operated by Ark inside
New York New York — reserving ‘‘Employee Dining Room’’
for the separate employee facility — and the notion that Ark
barred its off-duty employees from those restaurants is in
conflict with the above-quoted statement that they were
‘‘welcome’’ to patronize them.
Nor does Ark bring any clarity to the question. At one
point in its opening brief, the company states that the rules
limited ‘‘access with respect to the interior of Ark’s leased
property and working areas,’’ Ark Br. at 22, which suggests
that the rules did apply to the public restaurants (which are
working areas) but not to the employee dining room or locker
room (which are largely non-working areas). This appears to
be confirmed by another statement, that the rules did ‘‘not
deny off-duty Ark employees access to parking lots or other
non-work areas.’’ Id. At still another point, however, the
brief states that ‘‘ ‘property’ in this context clearly refers to
those locations leased to and operated by Ark,’’ id. at 24–25,
which would include the restaurants as well as the dining and
locker rooms. Finally, Ark’s reply brief states that the
‘‘employees clearly understood that Ark’s access restriction
rules applied to Ark’s ‘premises’ that were working areas,’’
and that they ‘‘were well aware that they could engage in
solicitation and distribution activities on behalf of the Union
in their off-duty time in non-working areas of Ark.’’ Reply
Br. at 4. This indicates that the restrictions applied to the
16
public restaurants, but not to the employee dining room or
locker room.
Needless to say, it is impossible for this court (or the
Board) to determine the law that applies to Ark’s no-access
rules without knowing what those rules were. Because the
NLRB appears to have invalidated the rules based on a
misunderstanding of their meaning, or at a minimum without
considering the contradictory indications of their meaning
described above, and because we ‘‘cannot sustain agency
action on grounds other than those adopted by the agency in
the administrative proceedings,’’ we must set aside this aspect
of the Board’s order and remand the issue for further consid-
eration and explanation. United Food & Commercial Work-
ers Int’l Union, Local 400 v. NLRB, 222 F.3d 1030, 1034
(D.C. Cir. 2000) (internal quotation marks omitted).
IV
For the foregoing reasons, we deny Ark’s petition for
review and grant the Board’s cross-application for enforce-
ment of the order in all respects, except to the extent that it
concerns Ark’s access restrictions. As to that issue, we set
aside the order and remand for further proceedings.
So ordered.