A buffet attendant at a casino went on break from 3:30 to 4:00 immediately before her shift ended at 4:00. Employees whose shifts were ending at 4:00, including the buffet attendant, began gathering in the hallway where the time clock was located a minute or two before 4:00. The employee took advantage of the “captive audience” and gave flyers to three employees who were standing in line at the time clock. She began passing these flyers out about 45 seconds before 4:00 when none of the employees, including the one distributing flyers, were clocked out. They all clocked out within about 30 seconds of the flyers being passed out.

Soon after the flyer incident, the employee was instructed to meet with the HR director. The employee admitted distributing the union material by the time clock and claimed that the “union had authorized her to do so.” The HR director showed the employee a surveillance video of her handing out the flyers by the time clock. The employee later apologized for handing out the flyers before she punched out. The company issued the employee a disciplinary warning for passing out the flyers in violation of the company’s no solicitation or distribution policy.

The Administrative Law Judge heard this case and ordered the company to “cease and desist from engaging in surveillance or the appearance of surveillance of employees, by taking photographs of such employees or other such activity.” The judge also ordered the company to rescind the disciplinary warning from the employee’s personnel records.