06/03/2025: ALJ Finds Six Illegal Work Rules
Including rules against "insubordination," "unprofessional behavior," and off-duty misconduct.
Resorts World Las Vegas, LLC, JD-54-25, 28-CA-293239 (ALJ Decision)
This decision involves allegations that Resorts World Las Vegas, LLC violated the National Labor Relations Act by disciplining and terminating employees who engaged in protected concerted activities, maintaining overly broad work rules, and making unlawful threats or statements.
The case centers on three employees: Alex O'Connor and Kalen Chavez (bartenders) and Brian Satake (master cook). O'Connor and Chavez complained about a new rotation system for bar assignments that replaced seniority-based assignments. O'Connor was later discharged for consuming Red Bull energy drinks without payment and falsifying transactions to conceal this. Chavez was disciplined and eventually discharged for failing to properly ring up transactions. Satake, a union bargaining committee member, was disciplined multiple times for various infractions and ultimately discharged for allegedly committing a health code violation.
The ALJ analyzed six General Rules of Conduct (GRCs) maintained by Resorts World and found them unlawfully overbroad. These rules prohibited "rude, discourteous, or unprofessional behavior," "insubordination or otherwise being uncooperative," leaving work areas without authorization, off-duty misconduct affecting the company, using abusive language, and engaging in "inappropriate" behavior. The ALJ determined these rules could reasonably tend to chill employees' Section 7 rights and were not narrowly tailored to serve legitimate business interests.
Regarding the employee terminations, the ALJ rejected the claims that O'Connor and Chavez were unlawfully disciplined, finding legitimate reasons for their discipline. However, the ALJ concluded that Satake's discharge violated the Act. The ALJ found that Satake engaged in protected activity by raising complaints about working conditions and filing grievances, that management exhibited animus toward this activity, and that the investigation into his alleged health code violation was deeply flawed and pretextual.
The ALJ ordered Resorts World to rescind the unlawful rules, offer Satake reinstatement with backpay and other remedies, and post notices informing employees of their rights.
Significant Cases Cited
Stericycle Inc., 372 NLRB No. 113 (2023): Established the current standard for determining whether an employer's maintenance of a facially neutral rule violates the Act.
Wright Line, 251 NLRB 1083 (1980): Set forth the analytical framework for assessing the lawfulness of an adverse action that turns on employer motivation.
Continental Group, Inc., 357 NLRB 409 (2011): Established that discipline imposed pursuant to an unlawfully overbroad rule violates the Act in certain situations.
Intertape Polymer Corp, 372 NLRB No. 133 (2023): Clarified how animus can be established through direct evidence or inferred from circumstantial evidence.
Atlantic Steel Co., 245 NLRB 814 (1979): Established a four-factor test for determining whether employee misconduct during protected activity loses protection of the Act.