Ark Las Vegas Restaurant Corp. v. National Labor Relations Board

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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.