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NLRB Issues New Property Access Test Allowing Employees of an On-Site Contractor to Use a Property Owner's Premises to Handbill Customers

Volume 10, Issue 4
April 29, 2011

In a legal battle involving a Las Vegas hotel-casino that has dragged on for almost fourteen (14) years, the National Labor Relations Board (NLRB) in New York New York, LLC, 356 N.L.R.B. No. 119 (2011), articulated a new test for determining the limited circumstances when a private property owner may prohibit off-duty employees of an on-site contractor, who regularly work at the property, from using non-working areas of the property open to the public to handbill customers.The case involved off-duty employees of a food service contractor for the hotel-casino who, in 1997, distributed handbills to customers at the hotel-casino's main entrance and at the entrances of restaurants operated by the contractor inside the hotel-casino as part of their efforts to obtain representation by Culinary Workers Union, Local 226 and Bartenders Union, Local 165. When asked to leave, the handbillers refused, resulting in the police escorting them off-property. In 2001, the NLRB concluded that the handbillers were improperly removed from the property because contractors' employees, who work regularly and exclusively at a property owner's facility, rightfully enjoy the ability to use the non-work areas of that facility to handbill customers, even on days when they are not scheduled to work, unless the property owner can show that prohibiting such activity is necessary to maintain production and discipline. In so ruling, the NLRB afforded on-site contractors' off-duty employees the same access rights as the property owner's employees. Upon review in 2002, the District of Columbia Circuit Court denied enforcement of the NLRB's ruling and sent the case back to the NLRB so it could better explain why it decided to grant the same property access rights to on-site contractors' employees as those of the property owner's employees rather than some other lesser level of access. More than eight (8) years later, the NLRB now adopts a property access test that treats on-site contractors' off-duty employees as a unique group of statutorily protected employees separate from employees of the property owner. It doing so, the NLRB rejects both the view that such workers enjoy precisely the same property access rights as the employees of a property owner and the view that such workers may be denied access except in the same limited circumstances as nonemployee union organizers. According to the NLRB's new access test, a property owner may only lawfully exclude on-site contractors' off-duty employees, who are regularly employed on the property, from using the public nonworking areas of the property to handbill customers when the owner is able to demonstrate that their activity significantly interferes with its use of the property or where their exclusion is justified by another legitimate business reason, such as the need to maintain production and discipline. Thus, the NLRB explained that any reason justifying property access exclusion available to a property owner with respect to its own employees' off-duty use of its property would also be applicable to situations where the property owner must deal with its contractors' employees' off-duty use of its property. Additionally, the NLRB recognized that property owners might possibly have legitimate interests warranting reasonable, non-discriminatory, narrowly tailored restrictions on the access of contractors' off-duty employees that are more restrictive than those lawfully imposed on its own employees. However, the NLRB declined to express any view as to what unique, more restrictive limitations on property access by on-site contractors' off-duty employees might be lawful and opted to instead to make such determinations on a case-by-case basis.

That it took the NLRB more than a decade to merely acknowledge the possible existence of legitimate reasons for property owners to impose more restrictive property access limitations on contractors' employees, only to dodge providing any guidance as to the nature of such reasons and limitations is truly exasperating. However, this is not surprising as the NLRB's analytical processes typically result in precedent that lags severely behind the current business realities faced by employers and employees alike. Based on the NLRB's new access test, property owners that have on-site contractors with a sizeable number of employees regularly working on the property should carefully reexamine their solicitation and distribution policies, security policies and procedures and contractor agreements. In addition, property oweners should consider the physical layout of their facilities to make sure that each are designed to minimize disruption of their business operations in light of the NLRB's less than concise limitations related to employee handbilling and other on-property organizing activities.

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