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April 1, 2011
National Labor
Relations Board Expands Rights of a Contractor's Off-Duty Employees
to Handbill on Private Property Not Owned by Their Employer
By: Kurt M. Graham
In a 3-1 decision, New York, New York LLC, 356
NLRB No. 119 (2011) the National Labor Relations Board
("NLRB") found that the New York, New York Hotel and Casino
("NYNY") violated Section 8(a)(1) of the National Labor
Relations Act ("NLRA") by prohibiting off-duty employees of
Ark Las Vegas Restaurants ("Ark") from distributing
handbills to its hotel, casino, and restaurant guests.The handbilling
occurred within NYY premises because Ark leased space to provide
three sit-down restaurants and a food court to NYY guests.
The off-duty Ark employees' handbilling was located at
three access points: NYNY's porte-cochere (the covered sidewalk
and driveway just outside the casino's main entrance), and at two
entrances to Ark restaurants located inside NYNY. The purpose
of the handbilling was to publicize Ark employees' union organizing
campaign to Ark and NYNY customers. Upon discovering the
handbilling activity, NYNY called the police who issued trespass
citations and escorted the off-duty Ark employees from the premises.
In its decision, the NLRB stated it was addressing only
the "narrow" situation where "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."
The NLRB then established the following
"access" standard for when a property owner may lawfully
prohibit off-duty employees of a contractor from engaging in
handbilling to potential customers. The NLRB found that such
conduct may only be prohibited where: (1) the property
owner can demonstrate that activity of the contractor's employees
"significantly interferes" with the owner's use of the
property; or (2) there is another legitimate business reason to
justify the exclusion, such as the need to maintain production and
discipline.
In issuing a remedy, the NLRB again showed its desire to
expand its remedial powers under the NLRA by: (1)
ordering NYNY to electronically distribute a notice informing
employees of its violation instead of the traditional posting of a
paper notice in the workplace, and (2) requiring any financial
award owed by NYNY to affected employees to have interest compounded
on a daily basis instead of the traditional quarterly basis.
NLRB Member Brian Hayes dissented from the majority's
decision to allow handbilling inside the casino because the majority
afforded "as much, if not more, protection to the efforts of Ark
employees to engage in union organizational activity on the
[casino's] premises as the [casino's] own employees would
have." However, Member Hayes still found NYNY violated the
NLRA by excluding the off-duty handbillers from the porte-cochere
area because they had no other reasonable means of communicating with
their fellow employees or restaurant customers inside the
casino. Responding to the NLRB's "access" standard,
Member Hayes expressed significant skepticism of the new balancing
test stating "[t]here will be no case-by-case balancing.
The contractor employees' rights to engage in organizational activity
will trump the property owner's rights every time. . . "
The New York, New York decision clearly expands
the right of off-duty contractor employees to handbill on private
property and will make it increasingly difficult for property owners
to prohibit such activity. Nevertheless, employers should still
act diligently whenever they observe any handbilling on their
property in order to ascertain whether such activity is legal under
the NLRA. At the very least, an employer should:
- Find out the purpose
of the handbilling from the flyers being passed out (is it for
an organizational or other purpose?)
- Ascertain to whom the
handbills are being distributed
- Determine whether the
handbilling is taking place in a work, or non-work area.
- Figure out whether
the handbilling is occurring in a public area.
- Determine whether the
handbiller is a contractor's employee, or a non-employee.
- If the handbiller is
a contractor's employee, ascertain whether he or she is on or
off-duty.
- If the handbiller is
a contractor's employee, find out whether he or she is an
employee who is regularly employed on your property.
- Document any
disruption(s) by handbillers to your use of the property and any
other adverse impact to productivity or your need to maintain
discipline at the site.
Since every handbilling situation presents different and
unique factual circumstances, it is prudent to contact legal counsel
to ensure a proper response to any handbilling that you may observe
in light of the new standard created by the New York, New York
decision.
If you have any questions please contact about the New
York, New York decision or how it may impact your business please
contact Kurt Graham at (616) 608-1144, kgraham@clarkhill.com, or
your Clark Hill Labor and Employment attorney.
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