A little-noticed ALJ case recently coming out of Las Vegas gives employers excellent insight into how the NLRB General Counsel views certain employee handbook provisions. The case involved the famous Rio Hotel and Casino – a venue which boasts a couple thousand hotel rooms and, in my opinion, the best buffet in Vegas. Last July, the NLRB’s Acting General Counsel’s office brought a complaint against the casino on the basis of several sections of its employee handbook.
The case went to an ALJ and, as I will detail below, the NLRB lost most of its charges. But employers should pay attention because these are the type of provisions that are drawing NLRB scrutiny right now. Checking to see if your own handbook has these provisions and possibly making some modifications might be warranted in order to stave off Board proceedings.
The basis of the complaint is that an employer violates the NLRA if it maintains workplace rules that tend to chill Section 7 activities by employees. One such Section 7 activity that was implicated by these rules is the right of employees to engage in protected concerted activity. In short, two or more employees have a right to complain about their terms and conditions of employment, without retaliation from their employer for doing so. This provision of the NLRA applies to both unionized and non-unionized employers.
Today and Monday I will re-publish the six portions of the employee handbook that the General Counsel’s office found objectionable and the ALJ’s decision on each portion. This will provide a roadmap of specific employee handbook provisions that are being called into question.
(1) Prohibition on Off-Duty Clothing
Employee Handbook: “Visiting Property When Not In Uniform: When on property while off duty for 30 training, New Hire Orientation, meetings, or coming in to change for work, the following Appearances Guidelines apply . . . The following may not be worn: bathing suits, short shorts, thong type sandals, tube tops, halter tops, tank tops, thin straps, strapless clothing, midriff tops, clothing which displays profanity, vulgarity of any kind, obscene or offensive words or pictures.”
NLRB General Counsel Complaint: The words “clothing which displays profanity, vulgarity of any kind, obscene or offensive words or pictures” could reasonably lead an employee to “construe the rule to prohibit them from wearing clothing intended to protest working terms or conditions for fear that Respondent may deem it to be vulgar, profane, or offensive.”
ALJ Decision: NLRB loses, on the basis that he was “unpersuaded” that employees “would reasonably construe the rule to prohibit Section 7 activity.”
(2) Off-Duty Employee Access & Manager’s Authorization
Employee Handbook: With your manager’s authorization you may use the Rio public facilities while off duty. When doing so, employees must act professionally and adhere to Conduct Standards (note the above Conduct Standard regarding gambling). In addition, if alcohol is consumed, it should be done responsibly while having a meal. Employees participating in company-sponsored events where alcohol is served (e.g. award banquets) must act responsibly and professionally.
Visits are permitted with your supervisor’s or manager’s approval so long as you are not in uniform. With that approval, you may visit public lounges, restaurants, casino and other public areas while off duty. When using any of the facilities as a guest you are restricted to public areas. Even though off duty, you are expected to conduct yourself in a manner consistent with the Conduct of Standards. Please ensure you review Conduct Standards #7 (gambling) and #9 (consuming alcohol) prior to visiting the property.
NLRB General Counsel Complaint: The GC argues that the rule could interfere with Section 7 rights, because an employee might believe that he needs a manager’s “authorization” or “approval” to engage in certain Section 7 Rights.
ALJ Decision: NLRB loses, on the basis that the rule could not be read by reasonable employees as requiring prior managerial permission in order to engage in protected activities on their free time in non-work areas.
Monday: Check back for the other portions of the Employee Handbook that the General Counsel’s office found objectionable and the ALJ’s decision on each.