New York New York, LLC v. N.L.R.B.

• Decision Date: 24 December 2002
• Docket Number: No. 01-1352.,No. 01-1351.,01-1351.,01-1352.
• Citation: 313 F.3d 585
• Parties: NEW YORK NEW YORK, LLC, d/b/a New York New York Hotel and Casino, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Local 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

313 F.3d 585

NEW YORK NEW YORK, LLC, d/b/a New York New York Hotel and Casino, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226 and Bartenders Union, Local 165, Intervenor.

No. 01-1351.

No. 01-1352.

United States Court of Appeals, District of Columbia Circuit.

Argued October 17, 2002.

Decided December 24, 2002.

On Petitions for Review and Cross-Applications for Enforcement of Orders of the National Labor Relations Board.

Gary C. Moss argued the cause for petitioner. With him on the briefs was Celeste M. Wasielewski.

Steven B. Goldstein, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Arthur F. Rosenfeld, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Margaret A. Gaines, Supervisory Attorney.

Michael T. Anderson and Richard G. McCracken were on the brief for intervenor.

Before: EDWARDS, RANDOLPH, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

The issue in these consolidated petitions for review of orders of the National Labor Relations Board is whether employees of contractors working on a casino's property have labor organizing rights equivalent to those possessed by the casino's employees. The Board seeks enforcement of its orders, and the union — Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226 and Bartenders Union, Local 165 — has intervened in support of the Board. Our decision in ITT Industries, Inc. v. NLRB, 251 F.3d 995 (D.C.Cir.2001), controls the outcome.

New York New York Hotel and Casino is located on the Strip in Las Vegas, Nevada. NYNY has leased space in its hotel and casino complex to independent restaurant management companies to run food service facilities. One of the companies, Ark Las Vegas Restaurant Corporation, operates two restaurants and several fast food outlets in a food court on NYNY's premises.

NYNY permits Ark employees, when they are off-duty, to visit and patronize the casino and restaurants, and to enter the complex through NYNY's public entrances, but they may not wear their uniforms, and the bars are off limits at all times. NYNY presented evidence that it had a policy against solicitation of any sort on its premises.

Although NYNY has a collective bargaining agreement with the union, the agreement does not include Ark or its employees. In February 1997, the union launched a campaign to organize the Ark employees working on NYNY's property. The following events were part of that campaign. On July 9, 1997, three off-duty Ark employees stood on NYNY property outside the main entrance, distributing union handbills to customers entering and exiting the casino and hotel. The handbills stated that Ark paid its employees less than comparable unionized workers and urged the customers to tell Ark to sign a union contract. Shortly after the handbilling began, a NYNY security supervisor, joined by a member of NYNY's management, told the Ark employees that they were trespassing and that they were not allowed to distribute literature on NYNY's property. After the Ark employees protested that they had a right to be on the property and refused to leave, NYNY's security guards summoned local law enforcement officers, who issued trespass citations to the handbillers. The union then filed an unfair labor practice charge with the Board, alleging that NYNY had violated § 8(a)(1) of the National Labor Relations Act, in response to which the Board's regional director issued a complaint.

On April 7, 1998, four off-duty Ark employees entered NYNY and distributed handbills to customers inside the complex. Two of the handbillers stood outside America, one of the Ark-operated restaurants; the other two stood in front of Gonzales y Gonzales, another of Ark's restaurants. After they refused a request to stop handbilling, NYNY summoned the authorities, who issued trespass citations to three of the employees. Another incident occurred two days later, on April 9, 1998, when two off-duty Ark employees (one of whom had received a trespass citation for the handbilling on April 7) stood outside NYNY's main entrance again, distributing handbills to passing customers. After a sequence of events similar to those of July 9, 1997, these Ark employees also received trespass citations. (All of the trespass citations issued to the Ark employees in 1998 were dropped.) On April 20, 1998, the union filed unfair labor practice charges, alleging that NYNY had violated § 8(a)(1) of the Act; the regional director issued another complaint.

The Board's General Counsel argued in each case that under § 7 of the Act, 29 U.S.C. § 157, the Ark employees had a right to handbill at NYNY in non-work areas during non-work times and that NYNY therefore violated § 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), when it prevented them from engaging in protected activity. NYNY countered that because the employees worked for Ark, not NYNY, they had no § 7 rights against NYNY and that NYNY validly applied its restriction on activities on its premises.

In separate proceedings Administrative Law Judges found in favor of the Ark employees, holding that when employees of a contractor work regularly and exclusively on the owner's property, their § 7 rights are equivalent to those of the employer's own employees. New York New York Hotel LLC d/b/a New York New York Hotel & Casino, 28-CA-14519, 1998 WL 1985077 (June 29, 1998); New York New York Hotel LLC d/b/a New York New York Hotel & Casino, 28-CA-15148, 1999 WL 33452907 (Apr. 9, 1999). The Board affirmed in both cases, agreeing that the § 7 rights of the Ark employees were equivalent to those of NYNY's employees, and that in both cases the Ark employees were engaging in organization activities in non-work areas of NYNY's property. New York New York Hotel LLC d/b/a New York New York Hotel & Casino, 334 N.L.R.B. No. 87 (July 25, 2001); New York New York Hotel LLC d/b/a New York New York Hotel & Casino, 334 N.L.R.B. No. 89 (July 25, 2001).

Section 7 of the National Labor Relations Act guarantees employees "the right to self-organization, to form, join, or assist labor organizations." 29 U.S.C. § 157. Section 8(a)(1) enforces § 7, making it an "unfair labor practice" for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in" § 7. 29 U.S.C. § 158(a)(1). In recognition of the property rights of employers and the § 7 rights of employees to organize, the Supreme Court has drawn a distinction between employees and nonemployees. In Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), the Court sustained the Board's rulings that off-duty employees have § 7 rights to engage in organizing activities on their employer's premises in non-work areas — rights the employer may not infringe absent a showing that the ban is necessary to maintain workplace order and discipline. Id. at 803, 65 S.Ct. 982. On the other hand, the Court held in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), that "an employer may validly post his property against nonemployee distribution of union literature" to employees, at least if the nonemployee union organizers may reach the employees through other means. Id. at 112, 76 S.Ct. 679. Highlighting the difference between the rights of employees and nonemployees, the Court explained in a later case that a "wholly different balance [is] struck when the organizational activity [is] carried on by employees already rightfully on the employer's property, since the employer's management interests rather than his property interests [are] there involved." Hudgens v. NLRB, 424 U.S. 507, 521-22 n. 10, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976).

This court's opinion in ITT Industries, Inc. v. NLRB, 251 F.3d 995, 1000-03 (D.C.Cir.2001), thoroughly analyzed these Supreme Court decisions and others. There, we explained that although there were suggestions in Supreme Court opinions that the controlling distinction for § 7 purposes was between invitees and trespassers, see Eastex, Inc. v. NLRB, 437 U.S. 556, 571, 98 S.Ct. 2505, 57 L.Ed.2d 428 (1978); Hudgens, 424 U.S. at 521-22, 96 S.Ct. 1029, the Court's most recent pronouncement in Lechmere, Inc. v. NLRB, 502 U.S. 527, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992), reaffirmed the principle announced in Babcock & Wilcox that the National Labor Relations Act confers rights upon employees, not nonemployees, and that employers may restrict nonemployees' organizing activities on employer property. See ITT, 251 F.3d at 1002-03; see also United Food & Commercial Workers v. NLRB, 74 F.3d 292, 295 (D.C.Cir.1996).

The Supreme Court has never addressed the § 7 rights of employees of a contractor working on property under another employer's control, and the Board's New York New York decisions shed little light on the important issues this factual pattern raises. The Board provided no rationale to explain why, in areas within the NYNY complex but outside of Ark's leasehold, Ark's employees should enjoy the same § 7 rights as NYNY's employees. Instead, the Board relied upon two of its previous decisions, Southern Services, 300 N.L.R.B. 1154 (1990), and MBI Acquisition Corp. d/b/a Gayfers Dep't Store, 324 N.L.R.B. 1246 (1997). New York New York, 334 N.L.R.B. No. 87 at 1; New York New York, 334 N.L.R.B. No. 89 at 1 n. 3. While the Board is certainly entitled to invoke its precedents to justify a given result, the court's responsibility is to examine those precedents to make sure they supply the reasoning lacking in the Board's opinion under review. See ITT, 251 F.3d at 1004. Here, neither Southern nor Gayfers fills the gap, a point on which we are in agreement with the Fifth Circuit in NLRB v. Pneu Elec., Inc., 309 F.3d 843, 850-55 (5th Cir.2002), handed down...