By Edwin S. Hopson
In 1997, off-duty employees of Ark Las Vegas Restaurants (“Ark”), a food concessionaire at New York New York Hotel & Casino (“NYNY”) in Las Vegas, Nevada, engaged in handbilling in the porte-cochere area of the casino and distributed their handbills to customers of NYNY’s hotel, casino, and restaurants as those customers entered NYNY’s facility. The purpose of the handbilling was in furtherance of and to publicize their organizing campaign at Ark whose employees were unrepresented. In 1998, the handbilling was repeated in the same areas by off-duty Ark employees. On both occasions, NYNY called the police who issued trespass citations and escorted the Ark off-duty employees off NYNY’s premises.
Unfair labor practice charges were filed alleging violations of Section 8(a)(1) by NYNY. After complaints were issued, administrative law judges found that NYNY had violated the Act, and the National Labor Relations Board affirmed issuing its decisions in 2001. See New York New York Hotel & Casino, 334 NLRB 762 (2001); New York New York Hotel & Casino, 334 NLRB 772 (2001). The cases were consolidated for review by the U.S. Court of Appeals for the District of Columbia Circuit. The Court of Appeals remanded the cases and instructed the Board to consider the distinction between rules of law applicable to employees and those applicable to nonemployees, see Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), and to answer specific questions pertaining to application of those distinctions to the facts presented in the NYNY cases. New York New York, LLC v. NLRB, 313 F.3d 585, 590 (D.C. Cir. 2002). Subsequently, the Board in 2003 accepted the remand and in 2007 issued a notice of oral argument and conducted an oral argument in the cases. Numerous amici briefs were filed in the consolidated cases.
On March 25, 2011, the Board, in a 3 to 1 decision, in New York New York Hotel & Casino, 356 NLRB No. 119 (2011), reaffirmed its holdings from 2001, and found NYNY violated Section 8(a)(1) of the Act by its actions in 1997 and 1998 towards the Ark off-duty employees who were handbilling on its property. Continue reading