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Legal Updates

NLRB Expands Union Handbilling Rights

A recent decision by the National Labor Relations Board (“NLRB” or “Board”), New York New York LLC d/b/a New York New York Hotel and Casino, creates expansive new rights for workers to distribute pro-union literature in public areas of worksites where they are employed.

In this decision, the Board held that the New York New York Hotel and Casino (“NYNY”), in Las Vegas, violated the National Labor Relations Act (“NLRA”) by forbidding employees of a contractor providing food services within NYNY from distributing handbills in public areas of the casino.  The Board’s ruling is significant, because while employees have long enjoyed the right to distribute literature within their own employers’ premises, this holding extends that principle to public areas of facilities that are owned and controlled by companies with no direct relation to such employees.  The Board’s decision thus seems likely to strengthen organizing efforts among employees who work within similar job settings.

Factual Background

Ark Las Vegas Restaurant Corporation (“Ark”) provides various types of food services to customers of NYNY.  In 1997, Ark employees attempted on three occasions to distribute flyers to NYNY patrons, asking them to support the Ark employees’ unionization efforts.  The handbilling took place near the casino’s main entrance and outside of two restaurants within the facility operated by Ark.  On each of these occasions, NYNY responded to the handbilling by contacting the Las Vegas police, who issued trespassing citations to the employees distributing the literature and escorted them off the property.

Subsequently, the labor unions assisting the Ark employees filed unfair labor practice (“ULP”) charges with the Board, alleging that NYNY had violated the NLRA by refusing to permit the handbilling.  After years of litigation, the U.S. Court of Appeals for the District of Columbia Circuit eventually remanded the case to the NLRB.  The Court of Appeals directed the Board to rule on the dispute in light of Supreme Court precedents holding that an employer must permit its employees to distribute handbills in non-working areas of the jobsite during non-working time, but may prohibit such activity by non-employees, such as outside union organizers.

In remanding the case to the Board, the Court of Appeals noted that the Supreme Court has not clearly delineated employees’ handbilling rights in the particular factual context involved – where employees regularly work within a job facility but seek to distribute literature in a different area of the facility that is open to the public.

NLRB’s Decision

In a 3-1 decision, the Board concluded that the Ark employees were entitled to distribute handbills within the public areas of NYNY’s premises.  In its decision, the NLRB formulated a new legal standard for determining employees’ handbilling rights in such situations.  Specifically, the Board held that NYNY had violated the NLRA because it had failed to demonstrate “that the handbilling significantly interfered with its use of the property or that exclusion was justified by some other legitimate business reason, such as the need to maintain operations or discipline.”  (Emphasis added.)

In reaching this conclusion, the Board took the view that because Ark employees regularly worked within the casino’s premises – even though for a separate employer – they were more comparable in status to employees of NYNY itself than to “pure” outsiders such as union organizers.  Thus, the Board opined, because employees of NYNY would have been entitled to distribute handbills within public areas of the casino, employees of Ark should enjoy that same right.

In dissent, Member Brian Hayes argued that the Board had failed to consider whether the Ark employees had reasonable alternative means of conveying their message to NYNY patrons.  Member Hayes also charged that the new legal standard established by the Board was so one-sided that “[t]he contractor employees’ rights to engage in organizational activity will trump the property owner’s rights every time.”

Implications Of Decision And Recommendations For Employers

The NLRB’s decision substantially broadens employees’ rights to carry out handbilling in public areas of facilities such as office buildings, hotels and shopping malls, in which their employers lease space.  Although the ruling purports to leave open the possibility that a property owner could show that handbilling by non-employees would unduly interfere with significant operational interests, in practice it will likely be difficult for a property owner to meet this standard, particularly with the current Board’s strong pro-union bent.

Also, while the New York New York decision dealt specifically with employees’ distribution of handbills, it seems quite possible that future Board rulings may expand the holding to other, more confrontational forms of expression, such as bannering and picketing.  (Indeed, in another, somewhat analogous decision, the Board recently held that a union did not violate the NLRA by posting members holding banners near the premises of employers with which the union had no direct dispute, urging passers-by not to patronize those employers.)

In light of these issues, employers would be well-advised to:

  • Seek legal advice if confronted with attempted handbilling or similar activity by non-employees on or near their premises.  Because the precise parameters of the Board’s NYNY holding remain to be worked out through future decisions, it is vital that an employer have the benefit of the most up-to-date legal advice in responding to such a situation.
  • Make certain that they have valid, written personnel policies prohibiting non-employees from soliciting or distributing literature within their premises, and that those policies are enforced uniformly.  Irrespective of the NYNY holding, if an employer regularly permits third parties with no relation to its business to solicit or distribute literature on its property, the employer will likely be found to have relinquished any right to bar such activity by labor unions.  (Note:  the legal standards governing solicitation and distribution policies are quite subtle and nuanced, so it is important that these policies be reviewed by counsel.)
  • Consider adopting and enforcing “no access” and “union-free” policies within the workplace.  While these policies are not universally favored and may be controversial, they are increasingly “in vogue” and merit serious consideration.
  • Offer management training (such as union avoidance “tips and traps”) to assist management in identifying issues within the workplace that may lead to union organizing and/or unfair labor practice charges.

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If you have any questions about the NYNY decision or would like guidance in connection with any of these issues, please don’t hesitate to contact us.