Human Resource & Labor News
www.agc.orgMay 17, 2011 / Issue No. 3-11
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On the Inside
EEO & Affirmative Action
The OFCCP Proposes to Increase the Obligations of Direct Federal Contractors and Subcontractors Regarding Veterans
AGC Provides Training to Federal Construction Contractors on OFCCP Affirmative Action Requirements
Employment Law Enforcement Efforts Focus on Inter- and Intra-Agency Collaboration
Social Security Administration Resumes Sending No-Match Letters
New Website Provides Form I-9 Guidance to Employers and Employees; AGC Conference to Offer Session on I-9 Documents
DHS Publishes Final Rule on Form I-9; No Additional Amendments to Current Form
NLRB Sets New Standard for Contractors’ Employees to Distribute Pro-Union Handbills on Customer’s Property
AGC, Construction Coalition Continue Promising Efforts to Collaborate with FASB on Multiemployer Disclosure
Professional Development
Registration Open for 10th Annual HR Professionals Conference
Department of Labor Schedules Latest Prevailing Wage Conferences
Construction Labor Law Developments Covered at AGC's Annual Symposium
NLRB Sets New Standard for Contractors’ Employees to Distribute Pro-Union Handbills on Customer’s Property

The National Labor Relations Board (NLRB) has established a new standard for addressing the access rights of off-duty employees of an onsite contractor to the premises of the property owner for the purpose of distributing union-supporting handbills.  While the case in which the new standard was issued involved a service contractor rather than a construction contractor, it could have ramifications in the construction industry.

The case, New York New York, LLC, 356 NLRB No. 119 (March 25, 2011), involved New York New York Hotel and Casino (NYNY) and its contractor, Ark Las Vegas Restaurant Corporation, which provided food services to NYNY patrons and employees in three sit-down restaurants, a food court, an employee dining room, banquet catering, and room service.  On three occasions, some of Ark’s employees who worked at the NYNY site entered the NYNY premises while off-duty to distribute handbills to Ark’s and NYNY’s customers.  The handbills, which were distributed on the sidewalk and driveway just outside NYNY’s main entrance and at the entrances to two restaurants inside NYNY, sought support for the workers’ campaign for representation by the union that already represented NYNY’s own employees.  NYNY had the local police issue trespassing citations to the handbillers and escort them off the property.  The union then filed unfair labor practice charges, alleging that NYNY violated Section 8(a)(1) of the National Labor Relations Act.  The NLRB agreed, but the court of appeals refused to enforce the Board’s order and remanded the case for the Board to better articulate its rationale.

Section 8(a)(1) provides that it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”  A primary issue here is whether the proscription applies only to an employer’s conduct vis-à-vis its own employees or extends to its actions vis-à-vis other company’s employees – i.e., whether the handbilling individuals were “employees” deserving protection from NYNY’s interference with its activities even though they were employees of NYNY’s contractor and not of NYNY. 

The Board found that Congress intended for the term “employee” in Section 8(a)(1) to cover actions by employers affecting the employees of other employers and that, therefore, NYNY possibly could be held to violate the Ark employees’ statutory rights even though they were not its own employees.  The Board rejected the argument that the Ark employees were equivalent to nonemployee union organizers – essentially outsiders – who enjoy less property access rights, but it also rejected the argument that they are equivalent to NYNY employees.  Rather, the Board set forth a new standard for employees who, like the Ark employees, are not employees of the property owner but are regularly employed on the property.

The Board held that the property owner “may lawfully exclude such employees only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline” as those terms have been defined by Board case law.  The Board explained that its decision is a relatively narrow one, applying only where the property owner “seeks to exclude, from nonworking areas open to the public, the off-duty employees of a contractor who are regularly employed on the property in work integral to the owner’s business, who seek to engage in organizational handbilling directed at potential customers of the employer and the property owner.”  Whether those parameters extend to the owners of construction sites and the employees of their construction contractors remains to be seen, but it is likely that it could under some circumstances.

The Board also left open the possibility that, in some instances, property owners will be able to demonstrate that they have a legitimate interest in imposing “reasonable, nondiscriminatory, narrowly-tailored restrictions on the access of contractors’ off-duty employees, greater than those lawfully imposed on its own employees.”  The Board declined to designate exactly what types of restrictions would be deemed permissible.  Rather, such restrictions will be evaluated on a case-by-case basis.

Applying its new standard to the facts of the case, the Board came to the same conclusion it had earlier:  that NYNY violated Section 8(a)(1) by removing the handbilling Ark employees from its property.  NYNY failed to demonstrate that the handbilling significantly interfered with its use of the property or that the removal was justified by some other legitimate business reason, such as the need to maintain operations or discipline.  Noting that NYNY had no preexisting restrictions Ark employee access to NYNY property, the Board did not consider what, if any, restrictions NYNY could have lawfully imposed short of a blanket prohibition on handbilling.

For more information on union access rights, visit the AGC’s Labor & HR Topical Resources page, then select the category “Unions/NLRA” and the subcategory “Union Access to Jobsite.”
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