New York, New York Hotel & Casino and Ark Restaurants Corporation, as joint employers, (2011)
National Labor Relations Board
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New York, New York Hotel & Casino and Ark Restaurants Corporation, as joint employers, (2011)
NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.
New York New York, LLC d/b/a New York New York Hotel & Casino and Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders Union, Local 165, affiliated with Hotel Employees and Restaurant Employees International Union, AFL2013CIO. Cases 282013CA201314519 and 282013CA201315148March 25, 2011DECISION AND ORDERBY CHAIRMAN LIEBMAN AND MEMBERS BECKER, PEARCE, AND HAYESThese cases, on remand from the United States Court of Appeals for the District of Columbia Circuit, require us to revisit issues arising when the off-duty employees of an onsite contractor seek access to the premises of the property owner to distribute handbills in support of their organizing efforts.Today, we adopt an access standard that reflects the specific status of such workers as statutorily protected employees exercising their own rights under the National Labor Relations Act, but not employees of the property owner. We reject both the view that these workers enjoy precisely the same access rights as the employees of the property owner (under the Supreme Court2019s Republic Aviation decision1) and the view that the property owner may deny access to these workers except in the limited circumstances when even 201cnonemployee201d union organizers must be permitted on the property (under the Supreme Court2019s Lechmere and Babcock & Wilcox decisions2). Instead, we strike an accommodation between the contractor employees2019 rights under Federal labor law and the property owner2019s state-law property rights and legitimate managerial interests. The Supreme Court instructed us to seek such an accommodation in Hudgens3 and we conclude that such an accommodation is possible, consistent with the terms of the Act, Supreme Court precedent, and the District of Columbia Circuit2019s remand instructions.1 Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).2 Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992); NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956).3 Hudgens v. NLRB, 424 U.S. 507, 521 (1976) (holding that the 201caccommodation between employees2019 rights and employers2019 property rights . . . must be obtained with as little destruction of one as is consistent with the maintenance of the other201d).I. PROCEDURAL BACKGROUNDOn July 25, 2001, the National Labor Relations Board issued its decisions and orders in these now-consolidated proceedings. New York New York Hotel & Casino, 334 NLRB 762 (2001) (Case 282013CA201314519); New York New York Hotel & Casino, 334 NLRB 772 (2001) (Case 282013 CA201315148). The Board found that the Respondent, New York New York Hotel and Casino (NYNY), violated Section 8(a)(1) of the National Labor Relations Act by prohibiting employees of its subcontractor, Ark Las Vegas Restaurant Corporation (Ark), from handbilling on Respondent2019s property.4Subsequently, the Respondent petitioned for review of the Board2019s Orders with the United States Court of Appeals for the District of Columbia Circuit, and the Board cross-petitioned for enforcement of its Orders. On December 24, 2002, the court granted the Respondent2019s petitions for review, denied the Board2019s cross-petitions for enforcement, and remanded the cases to the Board for further proceedings consistent with the court2019s opinion.5 New York New York, LLC v. NLRB, 313 F.3d 585 (D.C. Cir. 2002).By letter dated April 2, 2003, the Board notified the parties that it had accepted the remand and invited the parties to file statements of position. Thereafter, the Respondent, the General Counsel, and the Charging Party each filed a position statement.On September 4, 2007, the Board issued a notice of oral argument and invitation to the parties and interested amici curiae to file briefs. The notice requested that the parties address specific questions raised by the court of appeals concerning the employment status and Section 7 rights of a contractor2019s employees. The questions, set forth in detail in part III, below, included whether, for Section 7 purposes, the contractor2019s employees are employees, nonemployees, or something else vis-à-vis the owner of the property on which they work, the permissible time and location restrictions on their Section 7 activities, and their right to direct their handbills to guests and customers of the property owner and of their employer.The General Counsel, the Charging Party, the Respondent, and var...See the full content of this document
