NLRB Holds Third Party Contractor's Employees May Conduct Organizing Activity Inside Las Vegas Casino
In a 3-1 decision published Friday, the National Labor Relations Board has adopted a new access standard for the employees of a contractor wishing to engage in Section 7 activity on the property of a third party where they regularly work. In New York, New York LLC d/b/a New York New York Hotel & Casino, 356 NLRB No. 119 (March 25, 2011), the Board held:
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.
We conclude that the property owner may lawfully exclude such employees only where the owner is able to demonstrate that their activity significantly intereferes 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....
The employees at issue worked for a food service contractor that operated three restaurants and a food court outlet in the interior premises of a Las Vegas casino. Employees of the contractor working on the casino's premises began organizing efforts on behalf of the union representing the casino's own food service workers. Off-duty employees of the contractor began entering the casino's public areas -- mostly in front of the contractor's outlets -- and distributing handbills to patrons, asking them to urge the contractor to recognize and bargain with the union. The casino regularly called Las Vegas police to remove these individuals from the premises.
Back in 2001, the Board found an 8(a)(1) violation against the casino, but the casino petitioned the Court of Appeals which remanded the case for further consideration. In 2007, the Board accepted amicus briefs and held oral argument, as a result of which, it has now announced this new standard.
The Board opines here that the contractor's employees do not fit neatly into either category if forced to resolve their rights by considering them as employees of the property owner under the long-standingRepublic Aviation standards or by considering them as non-employee organizers subject to the standards set forth in the Lechmere case. The Board, nevertheless, viewed the contractor's employees more like employees of the property owner in its analysis. The Board certainly found compellingthe evidence here that the contractor's employees worked throughout the casino's premises, patronized the same break areas, and provided room service to the casino's hotels.
The Board recognized that the contractor's employees' Section 7 interests were most compelling, as they were involved in organizing themselves directly. Balancing this against the property owner's property and managerial rights, the Board concluded that the property owner's interests must give way. While acknowledging that the property owner absolutely had state property law rights to exclude the off-duty individuals from its property, the Board suggested that the property owner failed to fully protect those rights against the contractor's employees' interests by obtaining language in its leases to address the issue.
Member Hayes filed a dissent asserting that the majority's analysis "pays only lip service to the owner's property interests, and gives no consideration to the critical factor of alternative means of communication." He would have found a violation only where the casino ejected off-duty employees from the porte-cochere area near the casino's main entrance.
