NLRB Oral Argument

The NLRB has just ordered a rare oral argument to be held on November 9, at Philadelphia's City Hall--which coincides with the annual meeting of the ABA's Labor and Employment Law.  The Board is also seeking amici briefs, which must be filed by Oct. 2 (for more information, see the Board's website). The case, New York New York Hotel & Casino, No. 28-CA-14519, is on remand from the D.C. Circuit.  At issue is whether employees of a contractor operating on the casino's premises are considered employees of the casino under the Republic Aviation/Lechmere analysis.  As reported by the BNA Daily Labor Report (subscription required):

The board originally held in two decisions in July 2001 that the New York New York Hotel and Casino violated the National Labor Relations Act by prohibiting handbilling in certain nonwork areas by off-duty employees of Ark Las Vegas Restaurant Corp., which leases space from the hotel/casino and operates two restaurants and several fast-food outlets in a food court. However, the U.S. Court of Appeals for the District of Columbia Circuit in December 2002 reversed the board's decision and remanded the case for further consideration. . . .

The board found that "employees of a subcontractor of a property owner who work regularly and exclusively on the owner's property are rightfully on that property pursuant to the employment relationship, even when off duty." New York New York failed to show that its ban on handbilling was necessary to maintain work production and discipline, the board said.

However, the District of Columbia Circuit questioned whether the Ark employees would have the same rights as the casino employees to handbill on casino property. The "critical question" under U.S. Supreme Court precedent is "whether individuals working for a contractor on another's premises should be considered employees or nonemployees of the property owner," not whether they are invitees rightfully on the property, the appeals court said. It found that the NLRA "confers rights upon employees, not nonemployees, and that employers may restrict nonemployees' organizing activities on employer property."

In its order, the Board has listed the five questions it will consider based on the D.C. Circuit's remand:

1. Without more, does the fact that the Ark employees work on NYNY’s premises give them Republic Aviation rights (324 U.S. 793 [1945]) throughout all of the non-work areas of the hotel and casino? 

2. Or are the Ark employees invitees of some sort but with rights inferior to those of NYNY’s employees? 

3. Or should they be considered the same as nonemployees when they distribute literature on NYNY’s premises outside Ark’s leasehold? 

4. Does it matter that the Ark employees here had returned to NYNY after their shifts had ended and thus might be considered guests, as NYNY argues? 

5. Is it of any consequence that the Ark employees were communicating, not to other Ark employees, but to guests and customers of NYNY (and possibly customers of Ark)? Compare United Food & Commercial Workers, 74 F.3d at 298. (Derivative access rights, the Supreme Court has held, stem ‘entirely from on-site employees’ Section 7 organizational right to receive union related information.’ ITT Industries, 251 F.3d at 997.)

As I wrote in an article last year, I think the Supreme Court has put far too much weight on the employee/non-employee distinction, in part because it does a poor job addressing the issues at play in situations like this.  However, that's the law the Board has to deal with and its conclusions may have a broad impact given the growth of site-sharing relationships.  I agree with the Board's original take that an employee who has regular access to the area used for handbilling should enjoy Republic Aviation rights, rather than facing all-but-certain exclusion under Lechmere.  Unlike nonemployee union organizers, those employees are exercising their right to engage in collective action in an area that they have access to because of their employment.  But, I wouldn't bet on that being the outcome.

-JH