NLRB Finds Casino Violated Law By Prohibiting Off-Duty Restaurant Employees

From Handbilling On Casino Property In Public Areas

In a 3-1 decision, the National Labor Relations Board (“NLRB”) found that a Las Vegas casino violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by prohibiting off-duty employees of restaurants inside New York Hotel & Casino (the “Casino”) from distributing handbills on the Casino property.  In the March 25, 2011 decision, New York, New York, LLC d/b/a/ New York New York Hotel & Casino, 356 NLRB No. 119 (2011), the Board considered the narrow situation where “a property owner seeks to exclude, from nonworking areas open to the public, the off-duty employees of a contractor who are regularly employed on the property in work integral to the owner’s business, who seek to engage in organizational handbilling directed at potential customers of the employer and the property owner.”  At issue were employees who worked for a food service contractor that operated three restaurants and a food court outlet inside a Las Vegas casino.  The employees of the contractor were distributing handbills to Casino and restaurant customers outside the front entrance to the Casino as well as the entrances to the restaurants inside the Casino in an effort to garner support for their organizing efforts.

The Board, considering the case on remand from the United States Court of Appeals for the District of Columbia Circuit, held that the property owner may lawfully exclude such employees only where the owner is able to demonstrate that the activity of the contractor’s employees “significantly interferes” with the owner’s use of the property, or that there is another legitimate business reason to justify the exclusion, such as a need to maintain production and discipline.  Thus, the Board viewed the rights of the contractor’s employees more like those rights afforded to the employees of the property owner rather than the rights of non-employee organizers.

Member Brian Hayes filed a dissent regarding the majority’s decision to allow handbilling inside the Casino’s property, but agreed that the Casino violated the law by excluding handbillers from the sidewalk near the Casino entrance.  In his dissent, Hayes would have given more consideration to the “critical factor” of alternative means of communication for the contracted employees, stating that the employees should be required to show they had no other reasonable way to communicate with their fellow employees or the customers of the restaurant inside the Casino – a showing not required by the majority.

© 2011 Kiesewetter Wise Kaplan Prather, PLC