Silver Slipper Casino

DUNES HOTEL 871 M&R Investments, Inc. d/b/a Dunes Hotel and Country Club Summa Corporation d/b/a Frontier Hotel Summa Corporation d/b/a Desert Inn and Country Club Summa Corporation d/b/a Castaways Hotel & Casino Summa Corporation d/b/a Silver Slipper Casino and Local Joint Executive Board of Las Vegas Culi- nary Workers Union, Local No. 226 and Bar- tenders Union Local No. 165. Cases 31-CA-- 12097, 31-CA-12231, 31-CA-12232, 31-CA- 12233, and 31-CA-12234 30 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BA13SON On 22 July 1.983 Administrative Law Judge James S. Jenson issued the attached decision. The Respondents filed exceptions and a supporting brief, and the Charging Party filed a reply brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions 1 and to adopt the recommended Order as modified and set forth in full below.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that A. Respondents, M&R Investments, Inc. d/b/a Dunes Hotel and Country Club; Summa Corpora- tion d/b/a Frontier Hotel; Summa Corporation d/b/a Castaways Hotel and Casino; and Summa Corporation d/b/a Silver Slipper Casino, Las Chairman Dotson notes that an employer may generally prohibit so- licitation of and distribution to its employees on the "selling floor" of its business, and of its culinary workers within the particular restaurant, bar, or cocktail lounge which constitutes that employee's work station, Kelly- Springfield Tire Co., 265 NLRB 511, 512 fn 12 (1982) The rules herein are not so narrowly worded and would interfere with lawful solicitation and distribution permitted by Sec. 7 of the Act. Accordingly, he agrees with the judge that the rules as written are overly broad and thus unlaw- ful.2 The judge's recommended Order will be modified to explicitly pro- vide that the permitted solicitation of and distribution of literature to em- ployees must be conducted in a nondisruptive manner, consistent with the customary use of the area. The judge inadvertently omitted from his recommended Order a narrow order provision enjoining the Respondents from interfering with, restraining, and coercing employees in the exercise of their Sec. 7 rights. We have modified it accordingly. Vegas, Nevada, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Promulgating, maintaining, or enforcing a rule prohibiting nonemployee solicitation of and distribution of off-duty employees in nonselling public areas of our premises, so long as such solici- tation and distribution is conducted in a nondisrup- five manner consistent with the customary use of those areas, and we will rescind and annul that rule. (b) Promulgating, maintaining, or enforcing a rule prohibiting off-duty employees from soliciting other off-duty employees in nonselling public areas, so long as such solicitation is conducted in a non- disruptive manner consistent with the customary use of those areas, and we will rescind and annul that rule. (c) Promulgating, maintaining, or enforcing a rule prohibiting off-duty employees from distribut- ing protected materials to other off-duty employees in nonselling public areas, so long as such distribu- tion is conducted in a nondisruptive manner con- sistent with the customary use of those areas, and we will rescind and annul that rule. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Permitting employees to engage in protected concerted activities during nonworking time in nonselling public areas of our premises. (b) Permitting nonemployees to solicit off-duty employees and distribute to off-duty employees ma- terials lawful under the Act, in nonselling public areas of our premises, so long as such solicitation and distribution is conducted in a nondisruptive manner consistent with the customary use of those areas. (c) Post at each of their respective facilities copies of the attached notices marked "Appendix A-D." 3 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent If this Order is enforced by a judgment of a United States court of appeals, the words m the notice reading "Posted by Order of the Nation- al Labor Relations brad" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 284 NLRB No. 96 872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. B. Respondent Summa Corporation d/b/a Desert Inn and Country Club, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Promulgating, maintaining, or enforcing a rule prohibiting nonemployee-solicitation of and distribution of off-duty employees in nonselling public areas of our premises so long as such solici- tation and distribution is conducted in a nondisrup- five manner consistent with the customary use of those areas, and we will rescind and annul that rule. (b) Promulgating, maintaining, or enforcing a rule prohibiting off-duty employees from soliciting other off-duty employees in nonselling public areas, so long as such solicitation is conducted in a non- disruptive manner consistent with the customary use of those areas, and we will rescind and annul that rule. (c) Promulgating, maintaining, or enforcing a rule prohibiting off-duty employees from distribut- ing protected materials to other off-duty employees in nonselling public areas, so long as such distribu- tion is conducted in a nondisruptive manner con- sistent with the customary use of those areas, and we will rescind and annul that rule. (d) Promulgating and maintaining a rule requir- ing employees to report on the protected concerted activity of their coworkers. (e) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Permitting employees to engage in protected concerted activities during nonworking time in nonselling public areas of our premises. (b) Permitting nonemployees to solicit off-duty employees and distribute to off-duty employees ma- terials lawful under the Act, in nonselling public areas of our premises, so long as such solicitation and distribution is conducted in a nondisruptive manner consistent with the customary use of those areas. (c) Rescinding immediately its rule requiring em- ployees to report on the protected concerted activ- ity of their coworkers. (d) Post at its facilities copies of the attached notice marked "Appendix E." Copies of the notice, on forms provided by the Regional Direc- tor for Region 31, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 4 See fn 3, above. APPENDIX A-D 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 violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT promulgate, maintain, or enforce a rule prohibiting nonemployee solicitation of and distribution to off-duty employees in nonselling public areas of our premises, so long as such solici- tation and distribution is conducted in a nondisrup- tive manner consistent with the customary use of those areas; and WE WILL rescind and annul said rule. WE WILL NOT promulgate, maintain, or enforce a rule prohibiting off-duty employees from solicit- ing other off-duty employees in nonselling public areas, so long as such solicitation is conducted in a nondisruptive manner consistent with the custom- ary use of those areas; and WE WILL rescind and annul said rule. WE WILL NOT promulgate, maintain, or enforce a rule prohibiting off-duty employees from distrib- DUNES HOTEL 873 uting protected materials to other off-duty employ- ees in nonselling public areas, so long as such dis- tribution is conducted in a nondisruptive manner consistent with the customary use of those areas; and WE WILL rescind and annul the rule. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL permit our employees to engage in protected concerted activities during nonworking time in nonselling public areas of our premises. WE WILL permit nonemployees to solicit our off- duty employees and distribute to off-duty employ- ees materials lawful under the Act, in nonselling public areas of our premises, so long as such solici- tation and distribution is conducted in a nondisrup- tive manner consistent with the customary use of those areas. M&R INVESTMENTS, INC. D/B/A DUNES HOTEL AND COUNTRY CLUB SUMMA CORPORATION D/B/A FRON- TIER HOTEL SUMMA CORPORATION D/B/A CAST- AWAYS HOTEL & CASINO SUMMA CORPORATION D/B/A SILVER SLIPPER CASINO APPENDIX E 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 violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT promulgate, maintain, or enforce a rule prohibiting nonemployee solicitation of and distribution to off-duty employees in nonselling public areas of our premises, so long as such solici- tation and distribution is conducted in a nondisrup- tive manner consistent with the customary use of those areas; and WE WILL rescind and annul said rule. WE WILL NOT promulgate, maintain, or enforce a rule prohibiting off-duty employees from solicit- ing other off-duty employees in nonselling public areas, so long as such solicitation is conducted in a nondisruptive manner consistent with the custom- ary use of those areas; and WE WILL rescind and annul said rule. WE WILL NOT promulgate, maintain, or enforce a rule prohibiting off-duty employees from distrib- uting protected materials to other off-duty employ- ees in nonselling public areas, so long as such dis- tribution is conducted in a nondisruptive manner consistent with the customary use of those areas; and WE WILL rescind and annul said rule. WE WILL NOT promulgate and maintain a rule requiring employees to report on the protected concerted activity of their coworkers. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL permit our employees to engage in protected concerted activities during nonworking time in nonselling public areas of our premises. WE WILL permit nonemployees to solicit our off- duty employees and distribute to off-duty employ- ees materials lawful under the Act, in nonselling public areas of our premises, so long as such solici- tation and distribution is conducted in a nondisrup- five manner consistent with the customary use of those areas. WE WILL rescind immediately our rule requiring employees to report on the protected concerted ac- tivity of their coworkers. SUMMA CORPORATION D/B/A DESERT INN AND COUNTRY CLUB William 1 McCauley, Esq., for the General Counsel. William F. Spalding, Esq. (Gibson, Dunn & Crutcher), of Los Angeles, California, for the Respondent. Richard G. McCracken, Esq. (Davis, Cowell & Bowe), of San Francisco, California, for the Charging Union. DECISION STATEMENT OF THE CASE JAMES S. JENSON, Administrative Law Judge. These matters were heard in Las Vegas, Nevada, on February 23, 1983. The charges in each of the cases were filed by the Union on June 11, 1982. 1 The complaint against the 1 All dates are in 1982 unless stated otherwise. 874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Dunes Hotel and Country Club was issued on June 29, and separate complaints against the other Respondents were issued on July 22. An order consolidating all five cases for hearing also issued on July 22. The complaints in each case allege the promulgation and maintenance of unlawful no-solicitation and distribution rules. The Re- spondents contend that in view of the integrated nature of their various operations the rules applicable to retail businesses should be applied, thereby justifying their re- strictions on solicitation and distribution. All parties were afforded full opportunity to appear, to introduce evi- dence, and to examine and cross-examine witnesses. Briefs were filed by the General Counsel, the Respond- ents, and the Union, and have been carefully considered. On the entire record in the case, 2 including consider- ation of the posthearing briefs, I make the following FINDINGS OF FACT I. JURISDICTION It is alleged, admitted, and found that each of the Re- spondents is an employer engaged in commerce and in a business affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. IL THE LABOR ORGANIZATION INVOLVED It is alleged, admitted, and found that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. ISSUES 1.Whether the rules prohibiting solicitation and distri- bution of literature are overly broad and in violation of Section 8(a)(1). 2. If so, whether a rule promulgated by the Desert Inn had the unlawful effect of requiring its employees to inform the employer of the union activities of other em- ployees. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The Summa Corporation operates the Respondent Frontier Hotel, Desert Inn and Country Club, Castaways Hotel and Casino and Silver Slipper Casino as the Siunma Recreation Group. The Respondent Dunes Hotel and Country Club is not affiliated with the Summa Cor- poration. Each of the Respondents operates a casino and one or more restaurants and bars. With the exception of the Silver Slipper, each operates a hotel and has a gift shop and one or more swimming pools. The Dunes, Frontier, and Desert Inn also have shopping arcades. With the exception of the Castaways, each offers live showroom entertainment. In addition, the Dunes offers convention facilities and a country club with an 18-hole golf course. Public lounge and restroom facilities are lo- cated in each facility, and each has other public areas 2 The Respondents' unopposed motion to correct page 41, line 20, of the official transcript by substituting the word Dunes for Desert Inn, is granted. such as hallways, stairs, elevators, lobbies, sidewalks, and parking lots. Each of the Summa facilities has nonpublic break facilities for its employees, and the Desert Inn and Frontier have employee cafeterias for the exclusive use of their employees. Silver Slipper and Castaways em- ployees eat at tables reserved for them in the public coffee shops. The Union has a collective-bargaining agreement with each of the Respondents, which provides for an exclu- sive referral system. Both union and nonunion applicants are dispatched from the union hall. The respective em- ployees notify the Union of those applicants hired. Rep- resentatives of the Union then solicit the new employees to join the Union. 3 The Joint Board represents the tradi- tional classifications of employees found in bars, restau- rants and hotels, but does not represent dealers or live game operators in the casinos. The Union does not seek to represent and unorganized employees at any of the Respondents' establishments. On May 14 the Frontier and Castaways, and on May 24 the Dunes and Silver Slipper posted at their respec- tive premises a memorandum containing the following: No Solicitation/Distribution Rule No person who is not an employee of the (name of Respondent) is permitted to solicit our employees or distribute literature on our property at any time. No employee may distribute literature in work areas or areas open to guests or the public during either working or nonworking time. No employee may solicit employees during his or their working time in any areas, or outside of work- ing time in areas open to guests or to the public. Working time is all times when employees are ex- pected to be performing job duties and does not in- clude break or lunch periods. Violation of the above rules will result in discipli- nary action. The purposes of these requirements are to pre- vent disruptions of either our guests or our employ- ees' activities and to maintain operations at peak ef- ficiency for the benefit of our guests. The Desert Inn posted the same notice on May 24, with the addition of the following paragraphs: Every employee is expected to uphold the No Solicitation/Distribution Rule by immediately noti- fying his/her supervisor of violatiOns of this rule. No evidence was presented to show that any of the Respondents have enforced the rules. Positions of the Parties The General Counsel argues that the rules are overly broad on their face and thus unlawful. The first para- graph, he argues, "constitutes a blanket prohibition which denies union representatives the right to solicit or distribute literature to off-duty employees in any area of 3 Nevada is a right-to-work State. DUNES HOTEL 875 Respondents' property at any time," and, under the Board's holdings in cases involving retail establishments, is overly restrictive. The second and third paragraphs, he argues, unlawfully prohibit off-duty employees from either distributing materials, or soliciting between them- selves, in nonselling areas open to guests or the public, including restaurants, coffee shops, bars, restrooms, hall- ways, sidewalks, and parking lots. The last paragraph of the rules posted by the Desert Inn, he argues, has the effect of unlawfully requiring "employees to engage in surveillance of other employees' solicitation and distribu- tion activities, including activity which is protected by the Act." The Respondents argue that the casino is the center of each of the Respondents' "universe"; that "but for the casino, there would be no hotels or entertainment"; that "all restaurants, bars and lounges supplement the casino directly and are clearly integrated with it functionally." It is contended that all the Respondents' operations, in- cluding the casinos, restaurants, bars, and lounges are retail in character, and "when we add to this the integra- tion of all operations with the casino, it becomes obvious that all public areas are selling areas, as well as work areas where solicitation even by off-duty employees may be entirely restricted." The Respondents contend their position has been sustained by the Ninth Circuit Court of Appeals and recently by Administrative Law Judge David Heilbrun in a decision issued November 29, 1982, in Harolds Club, Case 32-CA-4235, presently on excep- tions to the Board. Discussion Paragraph 1 of the rules is a total ban on non-employ- ee solicitation or distribution of literature to employees on the Respondents' property at any time. The General Counsel contends the restriction is unlawful insofar as it extends to the bars and restaurants. The alleged unlawful portions of paragraphs 2 and 3 prohibits solicitation and distribution by employees during nonworking time in areas open to guests or to the public. The rule thus re- stricts the right of employees to solicit or distribute liter- ature to off-duty employees in areas open to the public, including restaurants, bars, sidewalks, parking lots, hall- ways, etc. There is no evidence that the rules have been enforced. , At the outset it is noted that the Union is not engaged in the organizing of any unorganized group of employ- ees; that it has a collective-bargaining agreement with each of the Respondents, whereby the Union exclusively dispatches applicants for employment to the respective Respondents; and that the Respondents each notify the Union of those applicants that it has hired. Although the record does not affirmatively establish the fact, it is pre- sumed the Union has available to it the addresses and/or telephone numbers of those individuals it dispatches. Thus, it could not validly be argued—nor has it been— that the employees are beyond alternative means of com- munication by the Union. There is no evidence in the record of any sign or notice anywhere in the public por- tion of any of the Respondents' premises that in anyway restricts 'or limits access, entrance to or use to only guests, customers, employees, or other persons. Thus, the public has access to the casinos, bars, cocktail lounges, restaurants, hallways, stairs, elevators, lobbies, lounges, restrooms, sidewalks, and parking lots. B. Applications of Rules to Nonemployees The General Counsel does not contend the restriction on nonemployee solicitation and distribution is unlawful except to the extent it applies to the bars and restaurants. Therefore, no consideration has been given to the fact the rule extends to other areas to which the public has access. The Board has concluded that gambling establish- ments, such as those involved here, are analogous to a retail store for the purpose of considering the lawfulness of no-solicitation and no-distribution rules, and that an employer can lawfully prohibit all such activity in the gambling area, which it equates to "selling floor" areas in retail stores. Barney's Club, 227 NLRB 414 (1976). There are numerous cases dealing with no-solicitation and no-distribution rules as applied to restaurants located in retail stores. In Ameron Automotive Center, 265 NLRB 511, 512 (1982), which issued November 30, 1982, the Board, in finding unlawfully broad a no-solicitation rule that prohibited solicitation by nonemployees "on the premises of this store," stated: The Board has held such rules as applied to public restaurants are unlawfully broad, and that union so- licitation by nonemployees in an employer's restau- rant, if conducted in a manner consistent with the purpose of the restaurant, cannot be so pro- scribed. 11 Thus, unlike the situation where nonem- ployee union organizers seek access to "private" or other" areas in which an employer may generally prohibit nonemployee solicitation, here the Babcock & Wilcox criteria need not be met, since nonem- ployees cannot in any event lawfully be barred from patronizing the restaurant as general members of the public. Accordingly, Respondents' rule prohibiting solicitation by nonemployees on the entire premises is unlawfully broad, regardless of whether, under Babcock & Wilcox, the Union in this case had other available channels of communication sufficient to enable it to reach Respondent's employees with its message." [Emphasis added.] 11 See, e.g., Montgomery Ward & Company, Inc., 256 NLRB 800 (1981), [enfd. 692 F.2d 1115 (7th Cir. 1982)]. 12 We note that an employer may generally prohibit solicitation on its selling floor areas and solicitation of its restaurant employees within the restaurant. See, e.g., Marshall Field & Company, 98 NLRB 88 (1952), modified on other grounds and enfd. 200 F.2d 375 (7th dr. 1952); see also Montgomery Ward & Company, supra; Montgomery Ward & Co., Incorporated, 162 NLRB 369 (1966). '3 See Montgomery Ward & Company, Inc., 256 NLRB at 801. As nonemployees can no more lawfully be barred from bars and cocktail lounges as general members of the public than from restaurants, I conclude that paragraph 1 876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the rules is unlawful insofar as it applies to those fa- cilities.4 C. Application of the Rules to Employees Acknowledging that the Respondents have the author- ity to prohibit employee solicitation and distribution in "selling areas," the General Counsel contends the offen- sive portions of paragraphs 2 and 3 of the rules unlawful- ly prohibit employee solicitation and distribution at all times, including nonworking time, in all areas open to guests or to the public, including restaurants, bars, rest- rooms, sidewalks, parking lots, or hallways, without dis- tinguishing between selling and nonselling areas. Accord- ing to the Respondents, all areas of each of their prem- ises open to the public are dedicated to the public's enter- tainment and relaxation, and that therefore, all public areas are selling areas, as well as work areas, for the appli- cation of the retail establishment rule, where solicitation even by off-duty employees may be entirely restricted. The General Counsel argues the Board drew a distinc- tion between selling and nonselling areas in McBrides of Naylor Road, 229 NLRB 795 (1977). In McBrides, the employer rule read that "Solicitation or distribution of printed materials will not be premitted during working hours or during non-working hours in working areas and in public areas." The Board states: The Administrative Law Judge correctly cited Board precedent as holding that an employer has the authority to prohibit solicitation and distribution in the selling areas of a retail store, even when em- ployees are on their own time. 9 He erred, however, in the application of this precedent to the rule in the case at hand. Contrary to Administrative Law Judge's interpretation of Board law, the Board has not allowed the restrictions on solicitation and dis- tribution to be extended beyond that portion of the store which is used for selling purposes." The rule herein does exactly that by precluding solicitation and distribution in "working areas" and "public areas." 9 See, e g., May Department Stores Company a Corporation, d/b/a Famous-Barr Company, 59 NLRB 976 (1944), Marshall Field & Company, 98 NLRB 88 (1952); 1 C. Penney Company, Inc., 193 NLRB 684 (1971). 1° Marshall Field & Company, supra at 92 He argues that the instant case is identical in that the Re- spondents' rules bar solicitation and distribution without distinguishing between selling and nonselling areas. The General Counsel also relies on the Board's decision in John Ascuaga's Nugget, 230 NLRB 275 (1977). There, the rule prohibited solicitation "on company premises by em- ployees after employees shift has been completed." With- 4 As the Respondent in Ameron, supra, could not in any event lawfully prohibit nonemployees from patronizing their restaurants, the Board found it unnecessary to provide an affirmative order granting access to the restaurant. The order was limited "to cease and desist from maintain- ing and enforcing their nonemployee no-solicitation rule and requiring Respondents to recmd" out discussion, the Board adopted the administrative law judge's conclusion that: Respondent has failed to show any overriding reason for prohibiting an employee, as a customer, soliciting another employee, also as a customer, to support the Union. Consequently, it is concluded that said rule is not "necessary for protection, safety, or discipline," and is violative of Section 8(a)(1) of the Act. To the extent the General Counsel relies on Sparks Nugget, it is noted that it was issued about 1 month after McBrides, and was modified in NLRB v. Silver Spur Casino, 623 F.2d 571 (9th Cir. 1980); cert. denied 451 U.S. 906 (1981); rehearing denied 452 U.S. 931 (1982), as will be seen hereafter. The Respondents correctly point that the seminal case in this area is Marshall Field & Co., 98 NLRB 88, 92 (1952), as was noted by Judge Heilbrun in Harold's Club. In Marshall Field, the Board stated: The Board has consistently held that employees' non-working time, either before or after work, or during luncheon and rest periods, may be used for self-organizational purposes as the employees wish without unreasonable restraint, although the time is spent on company property. 9 When this rule was applied to retail department stores, it was qualified to exclude from any solicitation only that portion of the store devoted to selling purposes. The qualifica- tion of the general rule was considered necessary, in the case of such stores, in order to prevent undue interruption or disturbance of the customer-salesper- son relationship and the consequent disruption of store business. We do not believe, however, that so- licitation in areas not used for selling amounts to an undue interference with store business even though customers may be present in such places. 10 Accord- ingly, the Board rejects the Respondent's conten- tions and finds, as did the Trial Examiner, that the Respondent violated the Act by prohibiting all so- licitation by employee and nonemployee union or- ganizers in all nonselling areas of its store when all employees concerned are off duty. 9 See Peyton Packing Company, Inc., 49 NLRB 828. This conclusion is supported by the court's statement in the May case to the effect that, "Under the Board's decision, the Com- pany is entitled to prohibit umon solicitation on the selling floor at all times, but it may not prohibit such solicitation off the selling floor, by and of employees, all of whom are on nonworking time (such as established luncheon or permitted rest periods) The term selling floor cannot be declared to be unworkably vague, for it ob- viously would appear to embrace those parts of the store where sales of commodities are made to customers in general course and to exclude those parts not so used and where customers normally are not present for such purposes." (Emphasis supplied ) May De- partment Store Company, supra. [May Department Stores Co, 59 NLRB 976 (1944), enfd 154 F 2d 533 (8th Cir 1945); cert. denied 329 U.S. 725 (1946).] The Board, went on to discuss (at 92-93) the exact areas in which a prohibition was unlawful. It concluded that the prohibition of union solicitation by either employee DUNES HOTEL 877 or nonemployee in aisles, corridors, elevators, escalators, and stairways inside the store did not violate the Act be- cause "While such areas are not devoted to selling pur- poses, it is patent that solicitation carried on in such limit- ed space may create traffic and safety hazards, tending to disrupt and interfere with Respondent's business to a se- rious degree." (Emphasis added.) The prohibition of so- licitation in public restrooms and waiting rooms was un- lawful because, while all of the store area was "inextrica- bly interwoven" with the employer's business, . . . it is an entirely incorrect assumption to con- clude that the impact produced by union solicitation in any portion of the store would be the same. Indeed, of the contrary were true, the Board would have had no reason to distinguish "selling areas" from other public portions of department stores in the long line of precedent herein cited." Public waiting rooms and rest rooms in Respondent's store, it is clear, cannot be considered to be selling space, nor do they present the problem peculiar to aisles and other interior store traffic channels. Solicitation in areas where sales are being made, it is patent, may have a direct, immediate, and detri- mental effect upon such sales. Solicitation in aisles, corridors, escalators, and elevators interconnecting sales areas could directly affect the passage and safety of customers in such areas. Solicitation in public waiting rooms and rest rooms, however, if subject to reasonable restrictions, could have only a slight, if not nonexistent, effect upon public use of such facilities and no adverse effect on sales activi- ties. To equate the situations presented by solicita- tion in these areas with that presented by such ac- tivity in the remainder of the store, is therefore, to ignore reality at the expense of employee rights to concerted activity. Accordingly, we find no com- pelling reason for denying off-duty employees the right to solicit and be solicited for union member- ship in such space. Far from converting these areas into organizational arenas, however, we find such solicitation permissible only insofar as it is not in- compatible with the purposes which the areas have been set aside for public use. The Respondent may adopt reasonable rules to insure that solicitation is carried on only as an incident to normal use of such facilities. 13 See, for example, May Department Stores Company, supra; Meier & Frank Company, Inc., supra, Goldblatt Bras, Inc., J.L. Hudson Company, 67 NLRB 1403. The Board also found that the ban on solicitation in the "private street" on the employer's premises was unlaw- ful, noting it was open to the public for pedestrian use. The Board went on to disagree with the employer's con- tention that prohibition of all solicitation in public restau- rants was unlawful, concluding, however, that the em- ployer's practice permitting employees to meet with cer- tain restrictions was not unlawful. Returning to Sparks Nugget, and Barney's Club, since July 1974, both of those employers had posted no-solici- tation rules, which were virtually identical, stating in pertinent part that "[s]olicitation on company premises by employees after employees['} shift has been completed is prohibited." The rule in both cases was found to be unlawful by the Board. In NLRB v. Silver Spur, supra, the circuit court agreed with the Board that "the rules promulgated by the Respondents [both Sparks Nugget and Barney's Club] were overly broad and thus invalid." The court stated (623 F.2d at 583): In Barney's Club and Sparks Nugget the respond- ent employers are engaged primarily in the direct service of customers through their gambling, restau- rant and bar facilities. There is no contention that any of these facilities serve primarily as employee- service areas. Thus, under the previously-discussed precedents, the respondents could promulgate no- solicitation rules which prohibited employees from engaging in solicitation or distribution of materials in areas open to the public even during non-work- ing periods. The court then concluded that the Board's order in both cases were themselves overly broad. The Board's orders stated that the respondents must cease and desist from: "maintaining any rule or regulation prohibiting its employees from soliciting on its premises after their shifts have been completed unless such prohibition is demonstrably necessary to maintain production, discipline or security." The court stated: Since the respondents could prohibit their employ- ees from soliciting during nonworking hdurs in public areas of their premises, we modify the Board's order to read that the respondents must cease and desist from: maintaining any rule or regulation prohibiting its employees from soliciting on its premises during nonworking hours in non-public areas of its premises, Unless such prohibition is demonstrably necessary to maintain production, discipline or security. In my view, the court's finding is not dispositive of the issue involved in the instant cases. It does not appear the distinction between selling and nonselling areas, as here, was involved or considered by the court. With respect to the Respondents' reliance on Harold's Club, again it is noted that the Board has not issued a decision in that case, and I do not view the issue raised there as sufficiently similar to the issue raised in these cases to have precedential value. Nor do I view the "button" cases cited in the Respondents' brief as appo- site. The Respondents contend further that in the absence of showing that the rules have been applied or that appli- cation is contemplated, neither of which is present here, no violation can be found. The Board's policy in this re- 878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spect is set forth in Great Atlantic & Pacific Tea Co., 162 NLRB 1182, 1184 (1967) as follows: It is well established that the mere existence of an unlawful no-solicitation rule makes it susceptible to application to employees and this factor alone tends to coerce, restrain, and interfere with their right to engage in self-organizational activities.2 2 See, Pueblo Supermarkets Inc., 156 NLRB 654 In sum, I conclude on the basis of the Board's deci- sions in McB rides of Naylor Road and Marshall Field, that paragraphs two and three of the Respondents' rule are overly broad in that they prohibit solicitation and distri- bution during nonworking time in nonselling areas open to guests or to the public, thus violating Section 8(a)(1) of the Act.5 D. The Desert Inn Expectation That Employees Report Violations of Its Unlawful Rules The General Counsel argues the final paragraph in the Desert Inn rules requires employees to engage in surveil- lance of fellow employees activities protected by the Act. I view an employer's "expectation" that an employ- ee perform a certain act as being in the nature of either a "request" or "order." That a request or order that an employee report on the protected activity of fellow em- ployees tends to interfere with, restrain, or coerce em- ployees in the exercise of rights guaranteed in Section 7, is so patently obvious, no recitation of authority is re- quired. 5 Although there may be an overridmg reason for lawfully prohibiting solicitation and distribution in areas limited to guests, none was shown here. V. THE REMEDY Having found that each of the Respondents has en- gaged in, and is engaging in, certain unfair labor prac- tices, I shall recommend that they cease and desist there- from and take certain affirmative action designed to ef- fectuate the policies of the Act. On the basis of the foregoing findings of fact and upon the entire record, I make the following CONCLUSIONS OF LAW 1. Respondents, and each of them, are employers en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By promulgating and maintaining a rule prohibiting nonemployee solicitation and distribution to off-duty em- ployees in nonselling areas, each of the Respondents has violated Section 8(a)(1) of the Act. 4. By promulgating and maintaining a rule prohibiting off-duty employees from soliciting other off-duty em- ployees in nonselling public areas, each of the Respond- ents has violated Section 8(a)(1) of the Act. 5. By promulgating and maintaining a rule prohibiting off-duty employees from distributing protected materials to other off-duty employees in nonselling public areas, each of the Respondents has violated Section 8(a)(1) of the Act. 6. By promulgating and maintaining a rule requiring employees to report on the protected concerted activity of their coworkers, Respondent Desert Inn has violated Section 8(a)(1) of the Act. 7. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]