On Tuesday, the federal court of appeals in Washington, D.C. announced good news for employers.  It blocked the enforcement of the NLRB’s notice posting rule pending resolution of the appeal over the legality of that rule.

That good news, however, overshadowed some bad news for employers coming out of that same court of appeals on the same day.  It affirmed the NLRB’s decision in New York New York, 356 N.L.R.B. No. 119 (2011). Readers of this blog may recall the coverage of that decision when it issued about a year ago.  In that case, the NLRB held that employees of a contractor doing business on another employer’s property must be permitted access to the employer’s property for the purpose of organizational handbilling. 


The court of appeals affirmed this ruling, holding that the NLRB appropriately used its discretion in balancing the rights of the property owner with those of the contractor’s employees in permitting access for the handbilling.  Specifically, the NLRB held that the property owner must demonstrate that the activity of the contractor’s employees "significantly interferes" with the use of the property or that exclusion of the contractor’s employees from its property is justified by another legitimate business reason, such as "the need to maintain production and discipline."


The court rejected the casino’s other arguments.  First, the court found irrelevant the fact that the handbilling was aimed at customers rather than fellow employees.  Second, the court rejected the argument that the handbilling occurred in a working area of the casino, deferring to the NLRB’s finding that the handbilling did not take place in a working area.  Finally, the court rejected the casino’s safety arguments, finding substantial evidence to support the NLRB’s determination that the handbilling posed no safety hazard.


For the labor professional, the case is an important reminder that appellate courts will, in the right case, defer to the reasoned decisions of the NLRB.  Moreover, it demonstrates how important it is to build a factual record supporting the employer’s decision at the agency level.  Finally, affirmation of the NLRB’s decision in New York New York reminds the labor professional of the need to avoid blanket assumptions about the access rights of nonemployees.