New York-New York, LLC v. National Labor Relations Board
676 F.3d 193
D.C. Cir.2012Background
- New York-New York Hotel contracts with Ark Las Vegas Restaurant Corp, which operates Ark restaurants on NYNY premises.
- Ark employees occasionally handed out union-related handbills to customers on NYNY sidewalks and Ark hallways in 1997–1998.
- NYNY asked Ark employees to leave; police cited most handbillers for trespassing when they refused.
- The NLRB charged NYNY with unfair labor practices under §7 and §8(a)(1) for ejecting the handbillers.
- The Board ruled NYNY committed an unfair labor practice, holding a property owner generally may not bar onsite-contractor employees from distributing union handbills.
- On appeal, the D.C. Circuit previously held the Board has discretion on how to treat onsite-contractor employees and remanded for Board reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ark employees on NYNY premises are to be treated as employees for §7 access rights | NYNY; Ark employees should be treated as nonemployees. | NLRB; Board has discretion to treat Ark employees as a distinct category. | Board discretionary; panel bound; NYNY I controls |
| Whether the Board properly allowed an accommodation excluding Ark off-duty employees in nonworking areas | Accommodation exceeded statutory rights; improper. | Accommodation reasonable given employment and property interests. | Board's accommodation rational and within NLRA; enforceable |
| Whether any of NYNY's ancillary arguments justify overturning the Board's decision | Handbilling targeted customers; safety; working areas; etc. | Board correctly found no basis to overturn; substantial evidence supports | Arguments unpersuasive; petition denied |
Key Cases Cited
- New York New York, LLC v. NLRB, 313 F.3d 585 (D.C. Cir. 2002) (initial panel holding on discretion over onsite-contractor employees)
- New York New York, LLC v. NLRB, 356 NLRB No. 119 (NLRB 2011) (Board's remand opinion on accommodation framework)
- ITT Indus., Inc. v. NLRB, 251 F.3d 995 (D.C. Cir. 2001) (deference to Board in unsettled access rights context)
- ITT Indus., Inc. v. NLRB, 413 F.3d 64 (D.C. Cir. 2005) (reaffirmation of framework for agency deference)
- NLRB v. Lechmere, Inc., 502 U.S. 527 (1992) (employee vs nonemployee access rights framework)
- Hudgens v. NLRB, 424 U.S. 507 (1976) (limits on access balancing between §7 rights and private property)
- Eastex, Inc. v. NLRB, 437 U.S. 556 (1978) (context for employee organizing rights in workplace)
- Republic Aviation Corp. v. NLRB, 178 F.2d 1015 (2d Cir. 1949) (concept of worksite as center of employee rights)