On Monday, March 18, 2013, the U.S. Supreme Court announced that it will not review the D.C. Circuit Court’s decision affirming a National Labor Relations Board rule allowing a third-party contractor’s employees to distribute pro-union handbills to customers on the employer’s premises.

In the underlying NLRB decision, New York, New York, LLC d/b/a/ New York New York Hotel & Casino, 356 NLRB No. 119 (March 25, 2011), the Board established a new access rule, holding that an onsite food service contractor’s off-duty employees were “statutorily protected employees” who could not be lawfully expelled by the property owner unless the owner could demonstrate that the contractor’s employees’ activity:

significantly interferes with [the property owner’s] 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 . . .”

In its petition for writ of certiorari, filed in October, 2012, New York New York Hotel & Casino argued that the NLRB’s new access standard is “destructive” to businesses and property owners and that it violates long-standing precedent that distinguishes between employees’ and nonemployees’ rights to distribute literature.  Denial of certiorari by the high court leaves the Board’s new access rule intact.

Our summary of the NLRB decision establishing the new access standard can be found here.