NLRB SHRINKS EMPLOYERS' PROPERTY RIGHTS
Alfred T. DeMaria
In New York New York Hotel & Casino, 356 N.L.R.B. No. 119 (2011), the National Labor Relations Board (NLRB) 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, it 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.
For non-union employers, the NLRB's surprising decision has significant implications. No longer can management 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 should be aware of the new rule the NLRB announced in this case and carefully analyze their legal options.
This Update is not intended to be legal advice, but rather is intended to inform the reader of problem areas and recent developments in labor and employment law. If legal advice is required concerning a particular matter, your attorney should be consulted.