By Edwin S. Hopson
In 1997, off-duty employees of Ark Las Vegas Restaurants (“Ark”), a food concessionaire at New York New York Hotel & Casino (“NYNY”) in Las Vegas, Nevada, engaged in handbilling in the porte-cochere area of the casino and distributed their handbills to customers of NYNY’s hotel, casino, and restaurants as those customers entered NYNY’s facility. The purpose of the handbilling was in furtherance of and to publicize their organizing campaign at Ark whose employees were unrepresented. In 1998, the handbilling was repeated in the same areas by off-duty Ark employees. On both occasions, NYNY called the police who issued trespass citations and escorted the Ark off-duty employees off NYNY’s premises.
Unfair labor practice charges were filed alleging violations of Section 8(a)(1) by NYNY. After complaints were issued, administrative law judges found that NYNY had violated the Act, and the National Labor Relations Board affirmed issuing its decisions in 2001. See New York New York Hotel & Casino, 334 NLRB 762 (2001); New York New York Hotel & Casino, 334 NLRB 772 (2001). The cases were consolidated for review by the U.S. Court of Appeals for the District of Columbia Circuit. The Court of Appeals remanded the cases and instructed the Board to consider the distinction between rules of law applicable to employees and those applicable to nonemployees, see Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), and to answer specific questions pertaining to application of those distinctions to the facts presented in the NYNY cases. New York New York, LLC v. NLRB, 313 F.3d 585, 590 (D.C. Cir. 2002). Subsequently, the Board in 2003 accepted the remand and in 2007 issued a notice of oral argument and conducted an oral argument in the cases. Numerous amici briefs were filed in the consolidated cases.
On March 25, 2011, the Board, in a 3 to 1 decision, in New York New York Hotel & Casino, 356 NLRB No. 119 (2011), reaffirmed its holdings from 2001, and found NYNY violated Section 8(a)(1) of the Act by its actions in 1997 and 1998 towards the Ark off-duty employees who were handbilling on its property.
The Board majority, Chairman Liebman and Members Becker and Pearce, outlined what it considered the narrow question they were deciding:
“We address only the situation where, as here, a property owner seeks to exclude, from nonworking areas open to the public, the off-duty employees of a contractor who are regularly employed on the property in work integral to the owner’s business, who seek to engage in organizational handbilling directed at potential customers of the employer and the property owner.” Pages 12-13.
The rationale for the majority’s decision was first, tied to the fact that Ark’s off-duty employees, while they were admitted trespassers under property law, were engaged in the exercise of their own rights to self-organization under federal labor law, as opposed to the situation present in Lechmere, involving non-employee union organizers coming onto the private property of the employer. Second, according to the majority, to apply a Lechmere sort of test would place too much of a burden on the exercise of Section 7 rights and make it virtually impossible for non-employees to exercise their rights the non-employer’s property on which they are employed. They stated:
“According such employees only the rights of union organizers based solely on the lack of an employment relationship with the property owner would often create serious obstacles to the effective exercise of their Section 7 rights—even though the property owner derives an economic benefit from their work. Indeed, linking full Section 7 rights to the existence of a particular employment relationship might create an incentive for businesses to structure their relationships with each other and thus with workers so as to restrict workers’ statutory rights, in contravention of the declared congressional policy of ‘protecting the exercise by workers of full freedom of association [and] self-organization.’ 29 U.S.C. § 151.24.” Page 6.
Finally, the Board majority noted that the Ark handbillers at NYNY were not strangers or outsiders but rather employees who worked on NYNY’s property every day and “had both a contractual and a close working relationship with NYNY,” page 7, and “sought access to locations that were uniquely suited to the effective exercise of their statutory rights.” Page 10. It was also noted that the Ark employees “did not adversely affect the ability of customers to enter, leave, or fully use the facility or the ability of Ark or NYNY employees to perform their work, and it was not a violation of any rule that NYNY attempts to defend as necessary to ensure operations or discipline.” Page 10
Thus, after balancing the right of the property owner to management his property and decide who can come and go with employee Section 7 organizational rights, the Board majority offered the following test, to be applied on a case by case basis:
“We conclude that the property owner may lawfully exclude such employees only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline (as those terms have come to be defined in the Board’s case law).” Page 13.
They also stated:
“We leave open the possibility that in some instances property owners will be able to demonstrate that they have a legitimate interest in imposing reasonable, nondiscriminatory, narrowly-tailored restrictions on the access of contractors’ off-duty employees, greater than those lawfully imposed on its own employees.” Page 13.
In dissent, Member Hayes, the only Republican on the Board, contended that the Board majority was providing only “lip service” to NYNY’s property interests in play in these two cases, and would have imposed a different test, one that included consideration of whether there were alternative means for the Ark employees to reach their “audience.”
This is a significant decision and one that portends of further expanding the reach of those seeking to extend the reach of union organizers to private property. It remains to be seen how far reaching this approach will go.