In New York New York Hotel & Casino, 356 N.L.R.B. No. 119 (2011), the Board expanded the right to handbill on private property. The party accused of wrongdoing in this case was a casino. Completely within the casino’s property, a different employer, pursuant to a subcontract with the casino, operated a restaurant. The restaurant’s employees were attempting to organize a union.
To get their message out, off-duty employees of the restaurant distributed handbills within the casino. Because the distribution was taking place on its private property, and the employees engaged in the distribution were not the casino’s employees, the casino asked the handbillers to stop. When they declined to do so, the casino contacted police and charged the employees with trespassing.
The NLRB held that the casino’s action was unlawful. The NLRB, balancing the property rights of the owner against the NLRA-protected rights of the employees, announced a new test. A property owner may prohibit off-duty employees of a subcontractor from engaging in handbilling to customers only where (1) it can demonstrate that the activity of the subcontractor’s employees “significantly interferes” with the owner’s use of the property; or (2) there is another legitimate business reason to justify the exclusion. In this case, the casino could not demonstrate that these criteria were present. Accordingly, their actions were unlawful.
NLRB Member Hayes dissented from this decision. He believed that restaurant employees should be required to show that they had no other reasonable way to communicate with their fellow employees or the customers of the restaurant. Only then should the organizational rights of the employees trump the private property rights of the owner. Member Hayes’ test is drawn from the well-established property access rule applicable to non-employees, like union organizers.
For the labor professional, the NLRB’s decision has significant implications. No longer can an employer assume that all non-employees may categorically be excluded from private property. Rather, if the non-employees sought to be excluded have some connection with the property, they may have rights under the NLRA. Employers and property owners in industries where subcontracting is present, such as the hospitality and retail industries, should be particularly mindful of the new rule the NLRB announced in this case.