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D.C. Circuit Rules Against New York-New York Hotel in Union Lawsuit

By Tanya Roth, Esq. on April 19, 2012 | Last updated on March 21, 2019

Here's a case out of the D.C. Circuit Court of Appeals involving union activity and handbill-passing by non-employees.

It's settled law that a property owner can't bar its employees from distributing union-related handbills. It's also well settled that the same law does not apply to non-employees.

But here's where it gets tricky. What if an employee of an on-site vendor or on-site contractor wants to hand out handbills? Do the same rules apply? After all, the employee is not an employee of the property owner.

Here's where the D.C. Court offered some clarity.

The National Labor Relations Board (NLRB) previously ruled that a property owner may not bar employees of an onsite contractor from distributing union-related handbills on the property. The appellate court upheld a ruling of the NLRB, involving a lawsuit filed by the New York-New York Hotel and Casino in Las Vegas.

The employees passing out the handbills in this case were not employees of the hotel, but employees of an onsite restaurant. Employees are permitted to pass out union-related handbills at their place of employment, but the hotel chain argued that these contractors fell under the same category as non-employees, largely because they were not employees of the hotel.

As on-site contractors, however, their place of work was the hotel. This point was reiterated by Justice Karen LeCraft Henderson in her concurring opinion.

In upholding the NLRB ruling, the D.C. Circuit Court of Appeals refused to look into the substantive legal arguments, saying deference had to be granted to the NLRB.

The judges held that this was a question for the NLRB to decide and granted an application by the NLRB to enforce its order.

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