The U.S. Court of Appeals for the District of Columbia Circuit recently let stand a decision of the National Labor Relations Board (NLRB or the Board) on whether a property owner can bar employees of an onsite contractor from distributing union-related handbills on the property. The case, New York-New York, LLC v. NLRB, has been hotly contested for more than a decade.

In general, a property owner may not bar its employees from distributing union-related handbills on the property. The property owner generally may bar non-employees from distributing union-related literature on its property. The New York-New York case is unique because it involved handbilling by employees of a contractor of the property owner, where the handbilling individuals normally worked on the property. (The case did not involve picketing, which is different from handbilling. At worksites with more than one employer, such as a construction site, picketing is only permitted if the protest is clearly directed exclusively at the primary employer.)

The New York-New York Hotel and Casino in Las Vegas contracted with Ark Las Vegas Restaurant Corporation to operate restaurants at the New York-New York complex. Off-duty employees of Ark entered New York-New York’s property and began handing out union literature on the sidewalk outside the hotel’s main entrance and in hallways outside two of Ark’s restaurants in the hotel. The handbills asked customers to urge Ark management to sign a union contract. New York-New York asked the Ark employees to leave the property. When the Ark employees failed to leave, New York-New York called the police, who cited many of the handbillers for trespassing. The union filed an unfair labor practices charge against New York-New York.

The NLRB found that New York-New York had committed an unfair labor practice. The Board ruled that a property owner generally may not bar employees of an onsite contractor from distributing union-related handbills on the property. The Board did not base its decision on whether or not the individuals working for Ark were employees of New York-New York. The Board devised its own analysis: a property owner may exclude from non-working areas open to the public, the off-duty employees of a contractor who are regularly employed on the property in work integral to the property owner’s business only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline. The Board refused to treat the Ark employees the same as nonemployees of New York-New York because they were regularly employed on New York-New York’s property. The appellate court said that the Board had discretion over the issue and refused to disturb the Board’s ruling.

The decision is important because it demonstrates how the National Labor Relations Act can impact a non-union employer. We will continue to update this issue if New York-New York seeks further review of the decision.