Soaring Eagle Casino and Resort, An Enterprise of the Saginaw Chippewa Indian Tribe of Michigan

National Labor Relations Board - Board Decisions

Oct 27, 2014

361 N.L.R.B. 769 (N.L.R.B. 2014)

SOARING EAGLE CASINO & RESORT 769
Soaring Eagle Casino and Resort, an Enterprise of
the Saginaw Chippewa Indian Tribe of Michi-
gan and International Union, United Automo-
bile, Aerospace and Agricultural Implement
Workers of America (UAW). Case 07–CA–
053586
October 27, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND SCHIFFER
On April 16, 2013, the Board issued a Decision and
Order in this proceeding, which is reported at 359 NLRB
No. 92. Thereafter, the Respondent filed a petition for
review in the United States Court of Appeals for the
Sixth Circuit, and the General Counsel filed a cross-
application for enforcement.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Thereafter, the court
of appeals vacated the Board’s Decision and Order and
remanded this case for further proceedings consistent
with the Supreme Court’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
judge’s decision and the record in light of the exceptions
and briefs. We have also considered the now-vacated
Decision and Order, and we agree with the rationale set
forth therein. Accordingly, we adopt the judge’s recom-
mended Order to the extent and for the reasons stated in
the Decision and Order reported at 359 NLRB 740
(2013), which is incorporated herein by reference. 1

1 The Respondent excepted only to the judge’s assertion of jurisdic-
tion and not to his unfair labor practice findings. In the absence of
exceptions, we find it unnecessary to address the judge’s discussion of
Register-Guard, 351 NLRB 1110 (2007), enfd. in part, review granted
in part 571 F.3d 53 (D.C. Cir. 2009), or whether the judge erred by
applying Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). Consistent with our deci-
sion in Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101
(2014), we agree with the modification to the judge’s recommended
Order to require the Respondent to compensate Susan Lewis for the
adverse tax consequences, if any, of receiving a lump-sum backpay
award, and to file a report with the Social Security Administration
allocating the backpay award to the appropriate calendar quarters.
We shall substitute a new notice in accordance with Durham School
Services, 360 NLRB 694 (2014).
MEMBER MISCIMARRA, concurring.
I concur in this matter and agree with the judge’s rul-
ings, findings, and conclusions, and I adopt the judge’s
recommended Order as modified in accordance with
Don Chavas, LLC d/b/a Tortillas Don Chavas, 361
NLRB 101 (2014).
Contrary to the Respondent, the judge properly found
that the Act is applicable to the Respondent’s casino op-
eration pursuant to San Manuel Indian Bingo & Casino,
341 NLRB 1055 (2004), enfd. 475 F.3d 1306 (D.C. Cir.
2007). The Respondent did not file exceptions to the
judge’s unfair labor practice findings, with which I agree
in any event. Thus, the judge properly found that Re-
spondent’s no-solicitation policy is facially invalid and
overly broad because it prohibits employees from solicit-
ing in any work area—defined as “any place where any
employees perform job duties at the Casino”—without
distinguishing between working time and nonworking
time, and therefore the policy can be read to prohibit
solicitation during nonworking time. See, e.g., Stoddard-
Quirk Mfg. Co., 138 NLRB 615 (1962) (absent special
circumstances, employees have a right to engage in solic-
itation on nonworking time). Further, the judge properly
concluded that Respondent violated Section 8(a)(1) by
prohibiting employees from discussing unionization in a
nonworking area (the employee hallway). Finally, it is
undisputed that the Respondent suspended and dis-
charged employee Susan Lewis for engaging in union
solicitation. Accordingly, unlike the judge, in finding
that the Respondent violated Section 8(a)(3) and (1)
when it suspended and discharged Lewis, I would not
apply Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982).
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.
361 NLRB No. 73

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 770
WE WILL NOT suspend, discharge, or otherwise dis-
criminate against any of you for supporting the Interna-
tional Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America or any other
union.
WE WILL NOT maintain and enforce a no-solicitation
rule prohibiting employees from (1) soliciting other em-
ployees during nonwork time to support the Union or any
other labor organization, and (2) distributing union litera-
ture or campaign paraphernalia during nonwork time in
nonwork areas.
WE WILL NOT tell employees they cannot talk to other
employees about the Union in the employee hallway.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the Board’s Order, offer
Susan Lewis full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
WE WILL make Susan Lewis whole for any loss of
earnings and other benefits resulting from her suspension
and discharge, less any net interim earnings, plus interest
compounded daily.
WE WILL compensate Susan Lewis for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file a report with the Social Security
Administration allocating the backpay award to the ap-
propriate calendar quarters.
WE WILL, within 14 days of the Board’s Order, remove
from our files any reference to the unlawful suspension
and discharge of Susan Lewis, and WE WILL, within 3
days thereafter notify her in writing that this has been
done and that the suspension and discharge will not be
used against her in any way.
WE WILL, within 14 days of the Board’s Order, revise
or rescind our no-solicitation rule prohibiting employees
from (1) soliciting other employees during nonwork time
to support the Union or any other labor organization, and
(2) distributing union literature or campaign parapherna-
lia during nonwork time in nonwork areas, and notify our
employees in writing that we have done so.
SOARING EAGLE CASINO AND RESORT, AN
ENTERPRISE OF THE SAGINAW CHIPPEWA
INDIAN TRIBE OF MICHIGAN

The Board’s decision can be found at
www.nlrb.gov/case/07–CA–053586 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.