Lareau on NLRB Decision in New York New York

In 2001, the NLRB held that a hotel/casino had violated the NLRA by refusing to allow Ark's off-duty employees to handbill the hotel's customers at the entrance to the hotel and at the entrances to Ark's restaurants. In March 2011, the NLRB, split 3-1, again concluding that the hotel/casino's conduct violated the Act. This article traces the history of the New York New York litigation, focusing on the Board's most recent decision.

Excerpt:

Pursuant to a lease/contract with New York New York Hotel LLC ("NYNY"), Ark Las Vegas Restaurant Corporation ("Ark") operated two restaurants and several fast food outlets on the premises of NYNY's hotel and casino in Las Vegas, Nevada. In 2001, the National Labor Relations Board ("Board") held that a hotel/casino had violated the National Labor Relations Act ("Act") by refusing to allow Ark's off-duty employees to handbill the hotel's customers at the entrance to the hotel and at the entrances to Ark's restaurants. The following year the D.C. Circuit refused to enforce the Board's order and remanded the case to the Board for consideration of a number of issues that the appellate court detailed in its opinion. In March of 2011, nearly 10 years after its original decision in the case, the Board, split 3-1, issued its decision on remand, again concluding that the hotel/casino's conduct violated the Act. However, in response to the D.C. Circuit's direction, the Board offered a detailed explanation of its decision and adopted a new standard respecting the access rights of "off-duty employees of an onsite contractor . . . to the premises of the property owner to distribute handbills in support of their organizing efforts."

This article traces the history of the litigation, focusing on the Board's most recent decision. It concludes by canvassing the issues that the appellate court[s] will confront upon review and suggests that this is yet another of those political issues, framed as a question of "administrative expertise," that is likely to be reversed with a differently constituted Board.

Facts

In NYNY I, New York New York Hotel and Casino ("NYNY") leased spaced to Ark Las Vegas Restaurant Corporation ("Ark"), which operated two restaurants and several fast food outlets in a food court on NYNY's premises. In July 1997, in order to pressure Ark to sign a collective bargaining agreement, off-duty Ark employees distributed area-standards handbills in the "porte-cochere'' of the casino (the area just outside the main entrance to the casino) urging customers to tell the restaurants to sign a union contract. When the handbillers refused to leave the premises at NYNY's request, NYNY called the police who issued trespass citations to the handbillers and escorted them from the premises. In April 1998, off-duty Ark employees again handbilled in the porte-cochere area as well as at the entrances to two restaurants operated by Ark inside NYNY's hotel and casino complex. NYNY again summoned the police, who issued trespass citations to the handbillers and escorted them off NYNY's property.

The Board's 2001 Decision

The Board held that NYNY's conduct violated the Act. Citing Gayfers Department Store, the Board noted that "employees of a subcontractor of a property owner who work regularly and exclusively on the owner's property are rightfully on that property pursuant to the employment relationship, even when off duty.'' NYNY argued that it had a right to preclude handbilling in the porte-cochere because it was an area in which doormen, baggage handlers, and valet parking attendants employed by the hotel and casino worked continuously. The Board rejected this argument, holding that the porte-cochere was a "nonwork area.'' In doing so, the Board relied on its decision in Santa Fe Hotel, Inc. There, the Board held that the entrances to the employer's lodge and casino were nonwork areas despite the fact that bellmen, valet parking attendants, security, maintenance, and gardening personnel worked continuously in those areas. It reasoned that the employer's principal function was to lodge people and allow them to gamble, and that the work of the bellmen and other employees at the facility's entrances was incidental to that function. The Board concluded that to hold that the entrances were "work areas,'' from which off-duty employee handbillers could be excluded, would effectively deny employees the right to distribute literature anywhere at the facility. Therefore, the Board found that the entrances were not work areas and that the handbillers could not be excluded. It also found that the areas in front of the restaurants, which were located inside the hotel/casino, were nonwork areas and, because the handbillers did not interfere with production or discipline, the handbillers should also be allowed access to those areas.

The D.C. Circuit's Decision Refusing to Enforce

The D.C. Circuit refused to enforce the Board's decision. Initially, the appellate court noted that in Republic Aviation Corp. v. NLRB, and NLRB v. Babcoock & Wilcox Co., the Supreme Court distinguished between off-duty employees and nonemployees with respect to their right to access and employer's property for organizational purposes. In Republic Aviation, the Court held that off-duty employees generally have Section 7 rights to engage in organizing activities on their employer's premises in non-work areas, while in Babcock & Wilcox, the Court held that an employer normally may preclude access of nonemployees. In Hudgens v. NLRB, the Court explained that the distinction was ground in the fact that the issue of nonemployee access invoked an employer's property interests while employee access concerned only an employer's managerial interests. [footnotes omitted]

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