In what is likely to be the beginning of a rash of activity before the terms of three of its five Members expire (see prior story and our Watch List item: Pending NLRB Cases), the National Labor Relations Board announced yesterday that it will hear oral argument in a case involving the interplay between property rights and labor rights. The case is merely the latest in a long line of cases to address this controversial topic. In a different context, the Supreme Court has affirmed what most property owners believe: “The right to exclude others is one of the most essential sticks in the bundle of rights that are commonly characterized as property.” That apparently is not always the case in labor law, and the National Labor Relations Board in particular has not been impressed with and employer/property owner’s “the right to exclude.”

In very general terms, under the current rulings of the Board and courts:

• Off duty employees generally have the right to come onto the certain non-working areas of their employer’s property to engage in union organizing activities; and

• Non-employee union organizers do not have the right to come onto the employer’s property unless no reasonable “nontrespassory” means are available for those organizers to communicate with employees.

The Board recently held that employees have access rights at all of their employer’s facilities, even facilities where they do not work.

The latest case, New York New York Hotel, LLC, d/b/a New York New York Hotel and Casino , Case 28-CA-14519, deals with a the employees of a restaurant located on leased space inside a hotel and casino property. The hotel/casino (NYNY) and restaurant (Ark) are owned by different companies. Some restaurant employees who supported union organizing at their company engaged in handbilling aimed at the hotel/casino’s guests and customers.

In announcing the Oral Argument, the Board invited the parties and amici to submit briefs addressing the following questions:

1. Without more, does the fact that the Ark employees work on NYNY’s premises give them [employee access] throughout all of the non-work areas of the hotel and casino?

2. Or are the Ark employees invitees of some sort but with rights inferior to those of NYNY’s employees?

3. Or should they be considered the same as nonemployees when they distribute literature on NYNY’s premises outside Ark’s leasehold?

4. Does it matter that the Ark employees here had returned to NYNY after their shifts had ended and thus might be considered guests, as NYNY argues?

5. Is it of any consequence that the Ark employees were communicating, not to other Ark employees, but to guests and customers of NYNY (and possibly customers of Ark)?

Additional Reading:

• NLRB seeks briefs on handbilling issues (Ross’ Employment Law Blog
• NLRB Oral Argument (Workplace Prof Blog)
• Hirsch, Jeffrey M., "Taking State Property Rights Out of Federal Labor Law" . Boston College Law Review, Vol. 47, No. 5, 2006 Available at SSRN: http://ssrn.com/abstract=887957