New York-New York, LLC v. Nat'l Labor Relations Bd., s. 11–1098

• Decision Date: 17 April 2012
• Docket Number: 11–1138.,Nos. 11–1098,s. 11–1098
• Citation: 162 Lab.Cas. P 10474,192 L.R.R.M. (BNA) 3345,676 F.3d 193
• Parties: NEW YORK–NEW YORK, LLC, doing business as New York–New York Hotel and Casino, Petitioner v. NATIONAL LABOR RELATIONS BOARD, RespondentLocal Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders Union, Local 165, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

162 Lab.Cas. P 10,474

192 L.R.R.M. (BNA) 3345

676 F.3d 193

NEW YORK–NEW YORK, LLC, doing business as New York–New York Hotel and Casino, Petitioner

v.NATIONAL LABOR RELATIONS BOARD, RespondentLocal Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders Union, Local 165, Intervenor.

Nos. 11–1098

11–1138.

United States Court of Appeals, District of Columbia Circuit.

Argued March 8, 2012.Decided April 17, 2012.

On Petition for Review and Cross–Application for Enforcement of an Order of the National Labor Relations Board.Gary C. Moss argued the cause for petitioner. With him on the briefs were Paul T. Trimmer and Joel J. Borovsky.

Robin S. Conrad, Harold P. Coxson, Jr., and Christopher C. Murray were on the brief for amicus curiae Chamber of Commerce of the United States of America in support of petitioner. Bernard P. Jeweler entered an appearance.

Amy H. Ginn, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Ruth E. Burdick, Supervisory Attorney. Heather S. Beard, Attorney, entered an appearance.Richard G. McCracken argued the cause for intervenor Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders Union, Local 165, in support of respondent. With him on the brief was Kristin L. Martin. Eric B. Myers entered an appearance.

Before: HENDERSON, ROGERS, and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge KAVANAUGH, with whom Circuit Judges HENDERSON and ROGERS join.

Concurring opinion filed by Circuit Judge HENDERSON.

KAVANAUGH, Circuit Judge:

Under precedents of the Supreme Court and the National Labor Relations Board, a property owner generally may not bar its employees from distributing union-related handbills on the property. But a property owner generally may bar non-employees from doing so. In this case, the primary question raised by New York–New York Hotel and Casino in Las Vegas is whether a property owner may bar employees of an onsite contractor from distributing union-related handbills on the property. The problem for New York–New York is that this Court previously considered that question and held that the Board has discretion over how to answer it. On remand from this Court, the Board concluded that a property owner generally may not bar employees of an onsite contractor from distributing union-related handbills on the property. New York–New York asks us to overturn the Board's ruling. That would require us to overrule our prior panel decision, which determined that the Board has discretion on this issue. We are of course bound by our prior panel decision and must reject New York–New York's attempt to have us reopen it. New York–New York also raises a few separate points based on the particular facts of this case, but none suffices to overturn the Board's ruling. We therefore deny New York–New York's petition for review and grant the Board's cross-application for enforcement of its order.

I

New York–New York Hotel and Casino in Las Vegas contracts with Ark Las Vegas Restaurant Corporation, which operates restaurants in the New York–New York complex. On a few occasions in 1997 and 1998, off-duty Ark employees who worked at the Ark restaurants entered New York–New York's property and passed out union-related handbills to Ark and New York–New York customers. The handbilling took place on the sidewalk outside of the main entrance to New York–New York and in the hallways outside two of Ark's onsite restaurants. The handbills asked customers to urge Ark management to sign a union contract.

Eventually, New York–New York asked the handbilling Ark employees to leave its property. When the Ark employees refused, New York–New York called the police, which cited most of the handbillers for trespassing.

The Union later filed unfair labor practice charges with the National Labor Relations Board, and the Board's regional director issued complaints against New York–New York. The complaints were premised on Section 7 of the National Labor Relations Act, which gives employees “the right to self-organization, to form, join, or assist labor organizations.” 29 U.S.C. § 157. Section 8(a)(1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise” of their Section 7 rights. 29 U.S.C. § 158(a)(1). “Employee,” as defined by the Act, includes “any employee, and shall not be limited to the employees of a particular employer.” 29 U.S.C. § 152(3) (emphasis added).

Applying that statute, the Board found that New York–New York had committed an unfair labor practice by ejecting the handbillers from the property. The Board ruled that a property owner generally may not bar employees of an onsite contractor from distributing union-related handbills on the property. But this Court concluded that the Board had not adequately explained its reasoning. See New York New York, LLC v. NLRB, 313 F.3d 585, 588 (D.C.Cir.2002). This Court thus remanded to the Board, emphasizing that the status of an onsite contractor's employees for these purposes was an issue committed primarily to the Board's discretion under the Act. See id. at 590. The panel listed a series of questions to guide the Board's exercise of its discretion on remand. See id.

On remand, the Board re-examined the issue and again concluded that a property owner generally may not bar employees of an onsite contractor from distributing union-related handbills on the property. See New York New York, LLC, 356 NLRB No. 119, slip op. at 5, 12–13 (Mar. 25, 2011).¹ The Board therefore reaffirmed its finding that New York–New York committed an unfair labor practice. See id. at 14. New York–New York has again petitioned for review, and the Board has cross-applied for enforcement of its order.

II

New York–New York principally contends that an onsite contractor's employees must be treated as equivalent to non-employees rather than employees for purposes of the right to distribute union-related handbills on the owner's property. According to New York–New York, a property owner therefore generally may bar employees of an onsite contractor from distributing union-related handbills on the owner's property. But New York–New York advanced this same argument in the prior iteration of its case, and the prior panel rejected the argument. This Court said:

[T]he critical question in a case of this sort is whether individuals working for a contractor on another's premises should be considered employees or nonemployees of the property owner. Our analysis of the Supreme Court's opinions ... yields no definitive answer.

No Supreme Court case decides whether the term “employee” extends to the relationship between an employer and the employees of a contractor working on its property. No Supreme Court case decides whether a contractor's employees have rights equivalent to the property owner's employees—that is, Republic Aviation rights to engage in organizational activities in non-work areas during non-working time so long as they do not unduly disrupt the business of the property owner—because their work site, although on the premises of another employer, is their sole place of employment.

This leaves a number of questions in this case unanswered....

It is up to the Board to answer these questions and others, not only by applying whatever principles it can derive from the Supreme Court's decisions, but also by considering the policy implications of any accommodation between the § 7 rights of Ark's employees and the rights of NYNY to control the use of its premises, and to manage its business and property.

New York New York, LLC v. NLRB, 313 F.3d 585, 590 (D.C.Cir.2002).

In short, this Court determined that the governing statute and Supreme Court precedent grant the Board discretion over how to treat employees of onsite contractors for these purposes. On remand, the Board exercised its discretion within the limits this Court had set forth.² New York–New York's beef is really with this Court's prior panel decision. New York–New York may of course seek en banc review to have our precedent overruled. But as a three-judge panel, we are bound by that prior decision. We cannot overturn the Board's decision here on a ground necessarily rejected by the prior panel.

III

New York–New York raises a few other arguments based on the particular facts of this case. None is persuasive.

New York–New York complains that the handbilling activities at issue here were aimed at customers instead of just at fellow employees. However, “neither this court nor the Board has ever drawn a substantive distinction between solicitation of fellow employees and solicitation of nonemployees. To the contrary, both we and the Board have made clear that NLRA sections 7 and 8(a)(1) protect employee rights to seek support from nonemployees.” Stanford Hospital & Clinics v. NLRB, 325 F.3d 334, 343 (D.C.Cir.2003).

New York–New York also asserts that the handbilling here occurred not in non-working areas but rather in working areas, where the Board has said that handbilling may be banned. The Board has special rules to determine what constitutes a working area for each industry. See Double Eagle Hotel & Casino, 341 NLRB 112, 113 (2004), enforced in relevant part, 414 F.3d 1249, 1254 & n. 3 (10th Cir.2005). In a retail store, for example, the working area is the selling floor where the employer makes retail sales, but not the other public spaces. See id. For a hotel-casino such as New York–New York, the Board has long concluded that the working areas are the hotel rooms and gaming areas because a hotel-casino's main function is to “lodge people and permit them to gamble.” Santa Fe Hotel, Inc., 331 NLRB 723, 723, 729–30 (2000); see also Double Eagle Hotel & Casino, 341 NLRB at 113; Dunes Hotel & Country Club, 284 NLRB 871, 876–78 (1987). The...