Labor & Employment Alert: NLRB and D.C. Court Upholds Right of Contractors’ Employees to Handbill on Others’ Property

Linda McGill
April 26, 2012

On April 16, the influential D.C. Circuit Court upheld a National Labor Relations Board decision that makes it more difficult for a property owner to bar employees of an onsite contractor from distributing union-related handbills on the property.

The court upheld the NLRB’s ruling that the New York-New York Hotel & Casino had violated the National Labor Relations Act by stopping employees of its subcontractor Ark Las Vegas Restaurant Corp., who were seeking to join the union that represents the casino’s employees, from distributing handbills on its property. The NLRB decided that the interests of the subcontractor’s employees and the interests of the unionized casino employees were closely enough aligned that the non-unionized employees of the sub-contractor had protected rights under the NLRA to come on the casino property and distribute the handbills.

The dispute dates back to 1997, when New York-New York called the police to stop Ark employees from distributing handbills to the casino’s patrons, prompting the union the employees were seeking to join to file a complaint with the NLRB.

This is first case to be decided by a court on the question of whether employees of someone other than the property owner have a right to communicate about organizing on that property. The ruling affects the construction industry and any other industry sector where employees typically work on a property owned by someone other than their employers.

Under the NLRB’s decision upheld by the D.C. Court, a property owner can prevent off-duty contractor employees who are regularly employed on the property from distributing handbills in nonworking areas open to the public only if the property owner can show that the exclusion is justified by a legitimate business reason.

Practical Significance:

This ruling has direct impact on the construction industry, property management companies and numerous other businesses and employers. The ruling expands the right of unions to promote hand billing and organizational activities throughout shopping malls, hotels, office buildings, and wherever the union will find easy access to customers, clients, and other audiences. General contractors with unionized subs will probably not be able to pressure a sub to limit on-site hand billing when there is a connection between the sub’s employees and employees of the job site property owner or perhaps even a tenant on the site. The ruling also shows that the current board is hostile toward restrictions on the access of contractors’ off-duty employees to handbill or engage in other protected activity on the job site.

For further assistance, please contact Bernstein Shur’s labor specialist, Matt Tarasevich (mtarasevich@bernsteinshur.com, 207-228-7158).

New York-New York LLC v. NLRB, case number 11-1098, U.S. Court of Appeals for the District of Columbia Circuit.