New York New York Hotel, LLC, et al. v. National Labor Relations Board

In response to a request by the National Labor Relations Board for amicus briefs, NCLC urged the Board to strike the appropriate balance in favor of a property owner’s right to prohibit contractor employees from engaging in organizational handbilling on the property owner’s premises. In its brief, NCLC argued that it is sound labor policy to continue to recognize the right of a property owner to control the use of its premises, and to manage its business and property. Privileging non-employees to violate the lawful and consistently maintained no-solicitation policies of property owners absent an employment relationship would invite disruption of the property owner’s business, confusion among the property owner’s customers, and expansion of labor disputes to neutral employers with no relationship to the affected employees or control over their terms and conditions of employment.

The NLRB, in a 3-1 decision, found that New York New York casino violated federal labor law when it prohibited an onsite food service contractor's off-duty employees from distributing handbills in its union organizing efforts in certain public, non-work areas of the owner's property.
 

New York New York casino appealed the Board's decision to the US Court of Appeals for the DC Circuit.  In its amicus brief, NCLC urged the court to decline to enforce the Board's decision because it is in conflict with Supreme Court precedent.  The new standard seeks to grant union organizers broad, presumptive access rights against property owners regardless of the absence of an employment relationship with the property owner, and threatens to create significant uncertainty among property owners, unions, and employees regarding the scope of their respective rights. 

The DC Circuit Court denied New York-New York’s petition for review and grant the NLRB's cross-application for enforcement.

Amicus brief filed 10/2/07. Oral argument held 11/9/07. Decided 3/25/11.  Amicus brief filed in US Court of Appeals for DC Circuit 8/26/11. Decided 4/17/12.