Wednesday, August 13, 2003
Copyright © Las Vegas Review-Journal

Ark Las Vegas' loses court case

Appeals judges say restaurant operator illegally fired workers trying to unionize

WASHINGTON -- A federal appeals court in Washington, D.C., has ruled a Las Vegas company in 1997 unlawfully fired eight employees who were trying to organize a union.

The ruling means Ark Las Vegas, which operates three restaurants at New York-New York and the food court at the resort, must offer to rehire the eight fired employees.

Meanwhile, workers at Ark Las Vegas still are not represented by a union.

"The company is taking all steps necessary to comply with the (NLRB) order, including the offer of immediate and unconditional reinstatement to the ... alleged discriminatees," said Celeste Wasielewski, a Washington attorney who represented Ark Las Vegas in arguments before the U.S. Circuit Court of Appeals for the District of Columbia.

One of the workers was fired one day after a local newspaper reported his pro-union views.

In a July 11 opinion, the court ruled Ark Las Vegas committed five violations of the National Labor Relations Act, affirming earlier decisions by the National Labor Relations Board and an administrative law judge.

"In sum, we conclude that the (National Labor Relations) Board's findings regarding discriminatory discipline and discharge are supported by substantial evidence on the record considered as a whole," U.S. Appellate Judge Merrick Garland wrote in the unanimous opinion by a three-judge panel.

Ark Las Vegas had appealed to the court to reverse a Sept. 25, 2001, ruling by the National Labor Relations Board. The board upheld the Sept. 21, 1998, findings of Administrative Law Judge James Kennedy, who ruled Ark Las Vegas violated the National Labor Relations Act by, among other things, prohibiting employees from wearing union buttons on the job.

Other violations included the company's refusal to permit employees to solicit workers to join Culinary Workers Union, Local 226. Distribution of union leaflets in the employees' cafeteria also were not allowed.

The court also concluded the company coerced workers by warning them of the consequences of joining a union.

But the court set aside the board's ruling that Ark Las Vegas violated federal labor law by forbidding employees from being on work premises more than 30 minutes before or after their shifts.

"The NLRB appears to be hopelessly confused regarding the areas to which the no-access rules applied," Garland wrote. "Nor does Ark bring any clarity to the question."

The court remanded the issue of workers' access to premises to the board "for further consideration and explanation."

Stephen Wamser, deputy regional attorney for the National Labor Relations Board in Las Vegas, said the board received input from workers, management and the board's general counsel last spring on employees' access to Ark Las Vegas.

Ark Las Vegas operates America, Gallagher's and Gonzalez y Gonzalez at New York-New York in addition to the food court.