New York, New York Hotel & Casino and Ark Restaurants Corporation, as joint employers

National Labor Relations Board - Board Decisions

Mar 25, 2011

356 N.L.R.B. 907 (N.L.R.B. 2011)

NEW YORK NEW YORK HOTEL & CASINO 907
New York New York, LLC d/b/a New York New
York Hotel & Casino and Local Joint Executive
Board of Las Vegas, Culinary Workers Union,
Local 226, and Bartenders Union, Local 165,
affiliated with Hotel Employees and Restaurant
Employees International Union, AFL–CIO.
Cases 28–CA–14519 and 28–CA–15148
March 25, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER,
PEARCE, AND HAYES
These cases, on remand from the United States Court
of Appeals for the District of Columbia Circuit, require
us to revisit issues arising when the off-duty employees
of an onsite contractor seek access to the premises of the
property owner to distribute handbills in support of their
organizing efforts.
Today, we adopt an access standard that reflects the
specific status of such workers as statutorily protected
employees exercising their own rights under the National
Labor Relations Act, but not employees of the property
owner. We reject both the view that these workers enjoy
precisely the same access rights as the employees of the
property owner (under the Supreme Court’s Republic
Aviation decision1) and the view that the property owner
may deny access to these workers except in the limited
circumstances when even “nonemployee” union
organizers must be permitted on the property (under the
Supreme Court’s Lechmere and Babcock & Wilcox
decisions2). Instead, we strike an accommodation
between the contractor employees’ rights under Federal
labor law and the property owner’s State-law property
rights and legitimate managerial interests. The Supreme
Court instructed us to seek such an accommodation in
Hudgens3 and we conclude that such an accommodation
is possible, consistent with the terms of the Act, Supreme
Court precedent, and the District of Columbia Circuit’s
remand instructions.
I. PROCEDURAL BACKGROUND
On July 25, 2001, the National Labor Relations Board
issued its decisions and orders in these now-consolidated
proceedings. New York New York Hotel & Casino, 334
NLRB 762 (2001) (Case 28–CA–14519); New York New
York Hotel & Casino, 334 NLRB 772 (2001) (Case 28–
1 Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
2 Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992); NLRB v. Babcock &
Wilcox Co., 351 U.S. 105 (1956).
3 Hudgens v. NLRB, 424 U.S. 507, 521 (1976) (holding that the
“accommodation between employees’ rights and employers’ property
rights . . . must be obtained with as little destruction of one as is
consistent with the maintenance of the other”).
CA–15148). The Board found that the Respondent, New
York New York Hotel and Casino (NYNY), violated
Section 8(a)(1) of the National Labor Relations Act by
prohibiting employees of its subcontractor, Ark Las
Vegas Restaurant Corporation (Ark), from handbilling
on Respondent’s property.4
Subsequently, the Respondent petitioned for review of
the Board’s Orders with the United States Court of
Appeals for the District of Columbia Circuit, and the
Board cross-petitioned for enforcement of its Orders. On
December 24, 2002, the court granted the Respondent’s
petitions for review, denied the Board’s cross-petitions
for enforcement, and remanded the cases to the Board for
further proceedings consistent with the court’s opinion.5
New York New York, LLC v. NLRB, 313 F.3d 585 (D.C.
Cir. 2002).
By letter dated April 2, 2003, the Board notified the
parties that it had accepted the remand and invited the
parties to file statements of position. Thereafter, the
Respondent, the General Counsel, and the Charging
Party each filed a position statement.
On September 4, 2007, the Board issued a notice of
oral argument and invitation to the parties and interested
amici curiae to file briefs. The notice requested that the
parties address specific questions raised by the court of
appeals concerning the employment status and Section 7
rights of a contractor’s employees. The questions, set
forth in detail in part III, below, included whether, for
Section 7 purposes, the contractor’s employees are
employees, nonemployees, or something else vis-à-vis
the owner of the property on which they work, the
permissible time and location restrictions on their
Section 7 activities, and their right to direct their
handbills to guests and customers of the property owner
and of their employer.
The General Counsel, the Charging Party, the
Respondent, and various amici filed briefs.6 On
4 Administrative Law Judge Timothy D. Nelson issued the
underlying decision in Case 28–CA–14519 on June 29, 1998, and
Administrative Law Judge Albert A. Metz issued the underlying
decision in Case 28–CA–15148 on April 9, 1999.
5 The court of appeals consolidated the two cases into a single
proceeding to address the petitions for review and cross-petitions for
enforcement. Because the analysis we adopt today applies to both
cases, this decision addresses them in consolidated form.
6 The General Counsel filed a preargument brief. The Charging
Party and Respondent each filed a preargument brief and a reply brief.
Amicus briefs were filed by the AFL–CIO and its Building &
Construction Trades Department, Pennsylvania State University Law
Professor Ellen Dannin, Teamsters Local Union 439, the United States
Chamber of Commerce, and the Venetian Casino Resort. The Board
did not request postargument briefs.
356 NLRB No. 119

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 908
November 9, 2007, the Board heard oral argument.7 The
Board has considered the decisions and the record in
light of the Court’s remand, the parties’ postremand
statements of position, the preargument briefs, and oral
argument and has decided to modify the standard used to
assess the access rights of contractors’ off-duty
employees, to affirm the Board’s prior findings that the
Respondent violated Section 8(a)(1) in both cases as
alleged, to modify the remedy, and to adopt the
recommended Orders as modified.8
II. FACTS
The facts of these cases are set out in full in our prior
decisions. In brief, Ark has contracted to provide food
service to NYNY’s guests and customers in three sit-
down restaurants and a food court consisting of 10 fast
food outlets as well as through banquet catering and
room service. Ark also provides food service to
employees of NYNY and of its contractors (including
Ark’s own employees) in NYNY’s Employee Dining
Room. Ark’s is a large operation, employing
approximately 900 people and operating 7 days per
week, 24 hours per day within the hotel.
In 1997, Ark employees working on NYNY’s
premises initiated a campaign to obtain representation by
the Union, which already represented NYNY’s
employees. Among other actions in pursuit of
representation, on three occasions in July 1997 and April
1998, off-duty Ark employees entered onto NYNY’s
property (i.e., their regular worksite) to distribute
handbills to Ark’s and NYNY’s customers. The
handbills described Ark’s lack of a union contract as
“unfair” and compared the wages and benefits of the
nonunion Ark employees to the wages and benefits of
unionized employees doing comparable work at other
7 Chairman Liebman was serving on the Board at the time of the oral
argument. Members Becker, Pearce, and Hayes had not yet been
appointed but have had access to a transcript of the oral argument.
8 We shall substitute a new notice to conform to the Board’s
standard remedial language. We modify the Board’s prior Orders to
provide for the posting of the notice in accord with J. Picini Flooring,
356 NLRB 11 (2010). For the reasons stated in his dissenting opinion
in J. Picini Flooring, Member Hayes would not require electronic
distribution of the notice. In accordance with our decision in Kentucky
River Medical Center, 356 NLRB 6 (2010), we modify the Board’s
prior remedy by requiring that monetary awards shall be paid with
interest compounded on a daily basis.
The Charging Party has requested that we grant the New York New
York cases at issue “related-case status” with Ark Las Vegas Restaurant
Corp., Case 28–CA–14228, which, at the time of the Charging Party’s
request, was also before the Board on remand from the Court of
Appeals for the District of Columbia Circuit. 334 F.3d 99 (D.C. Cir.
2003). For the reasons stated in our decision in Ark Las Vegas
Restaurant Corp., 343 NLRB 1281, 1281 fn. 3 (2004), we have denied
the Charging Party’s request.
hotels and casinos on the Las Vegas Strip. The handbills
requested that customers tell Ark’s managers that Ark
should “recognize and negotiate a fair contract with its
workers.” The handbills distributed by Ark employees in
July 1997 (but not those distributed in April 1998)
expressly disclaimed any dispute with NYNY.
The handbills were distributed at three access points—
at NYNY’s porte-cochere (the covered sidewalk and
driveway just outside NYNY’s main entrance) and
directly in front of two Ark-operated restaurants within
the hotel, America and Gonzales y Gonzales.9 On all
three occasions, the Ark employees refused NYNY’s
requests that they leave the property. NYNY summoned
the Las Vegas police, who issued trespassing citations to
the employees and escorted them off the property.10
These incidents resulted in the unfair labor practice
charges at issue here, which allege that NYNY violated
Section 8(a)(1) by prohibiting the Ark employees from
distributing handbills on its premises.
In both cases, in agreement with the administrative law
judges, the Board found that NYNY had violated the Act
as alleged. Relying primarily on Gayfers Department
Store and Southern Services,11 the Board found that
because the handbillers were employees of a contractor
who worked regularly and exclusively on NYNY’s
property, they enjoyed the right to distribute literature to
NYNY customers in nonwork areas during nonworking
time, subject only to NYNY’s need to maintain
production and discipline.12 Republic Aviation Corp. v.
NLRB, 324 U.S. 793 (1945).13
III. THE COURT OF APPEALS’ DECISION
In its review of the New York New York decisions, the
Court of Appeals for the District of Columbia Circuit
concluded that the Board had failed to consider the
implications of the Supreme Court’s opinion in
9 On July 9, 1997, several Ark employees distributed handbills at the
porte-cochere. On April 7, 1998, several Ark employees handbilled at
the restaurants’ entrances. As represented by the Union’s counsel at
oral argument, the Respondent’s assertion that the porte-cochere was
not an appropriate location for the Ark employees’ handbilling, because
it was too far from their worksites, led to the April 7, 1998 handbilling
at the restaurants’ entrances. Upon being prohibited from handbilling
at the restaurants’ entrances as well, the handbillers returned to the
porte-cochere on April 9, 1998.
10 One handbiller, who was escorted from NYNY’s property by its
security officers, did not receive a trespass citation from the police.
The citations against the April 1998 handbillers were later withdrawn.
11 Gayfers Department Store, 324 NLRB 1246 (1997); Southern
Services, 300 NLRB 1154 (1990), enfd. 954 F.2d 700 (11th Cir. 1992).
12 The Board found that the handbilling at issue did not interfere with
production or discipline. 334 NLRB at 763; 334 NLRB at 773, 774.
13 The Board found that it was not relevant that the Ark employees
were off duty when they returned to NYNY to distribute handbills,
citing Nashville Plastic Products, 313 NLRB 462, 463 (1993).

NEW YORK NEW YORK HOTEL & CASINO 909
Lechmere (reaffirming the holding of Babcock & Wilcox
that nonemployee union organizers are entitled to
distribute literature on an employer’s private property
only when they have no reasonable, nontrespassory
means to communicate their message). The court of
appeals explained that the Supreme Court held in
Lechmere that “the scope of § 7 rights depends on one’s
status as an employee or nonemployee.” New York New
York Hotel & Casino v. NLRB, 313 F.3d at 588. The
court instructed the Board to address the implications of
Lechmere on remand.14 Likewise, the precedents on
which the Board relied, which held that a contractor’s
employees working regularly and exclusively on
particular property have the same rights as employees of
the property’s owner under Republic Aviation, did not
fully address Lechmere’s distinction between employees
and nonemployees.15 Thus, the court concluded that
these precedents lacked a fully articulated rationale and
that the Board had erred in simply relying on them. As
the court explained:

[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, unlike the Board’s in
Southern and Gayfers, 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.
14 The Board referred to Lechmere in its decision in Case 28–CA–
14519 but apparently assumed that Ark’s employees fall on the
“employee” side of Lechmere’s divide, even with regard to their rights
in relation to NYNY.
15 Southern Services was decided before the Supreme Court issued
Lechmere. The Court of Appeals for the Eleventh Circuit enforced
Southern Services shortly after Lechmere issued but did not address the
Supreme Court’s reaffirmation of the employee/nonemployee
distinction. Gayfers issued after Lechmere, and although the Board
discussed the Supreme Court’s distinction between employees and
nonemployees, it nonetheless vested the contractor’s employees with
the same rights as employees of the property owner, relying on the
finding that the former worked regularly and exclusively on its
property.
This leaves a number of questions in this case
unanswered. Without more, does the fact that the
Ark employees work on NYNY’s premises give
them Republic Aviation rights throughout all of the
non-work areas of the hotel and casino? Or are the
Ark employees invitees of some sort but with rights
inferior to those of NYNY’s employees? Or should
they be considered the same as nonemployees when
they distribute literature on NYNY’s premises
outside of Ark’s leasehold? 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? 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)? Compare
United Food & Commercial Workers [v. NLRB], 74
F.3d [292, 298 (D.C. Cir. 1996)]. (Derivative access
rights, the Supreme Court has held, stem “entirely
from onsite employees’ § 7 organizational right to
receive union-related information.” ITT Industries,
[Inc. v. NLRB,] 251 F.3d [995, 997 (D.C. Cir.
2001)].)
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. The Board did not perform that function in
these cases.

New York New York v. NLRB, 313 F.3d at 590–591. The
court thus granted NYNY’s petitions for review, denied the
Board’s cross-petitions for enforcement, and remanded the
cases to the Board for reconsideration of the Ark-employed
handbillers’ status and access rights. Id. at 591.
IV. POSITIONS OF THE PARTIES AND AMICI
The parties and the amici diverge on the basic
questions presented by this case.
A. The General Counsel
Starting from the premise that the Ark employees are
not employees of NYNY, and thus that Republic
Aviation does not apply,16 the General Counsel urges us
to engage in a balancing test that accommodates the
Section 7 rights of the Ark employees and the property
16 This view, which the General Counsel has advocated in the wake
of the Court’s remand, represents a change of position from the General
Counsel’s reliance on Republic Aviation when the cases were first
litigated.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 910
rights of NYNY. On the employees’ side of the balance,
argues the General Counsel, the Board must consider the
specific right for which access is sought, whether that
right is exercised derivatively or not, and the access-
seekers’ relationship to the property and the property
owner. On the property owner’s side of the balance, the
Board must consider the owner’s relationship to the
underlying labor dispute. The General Counsel proposes
a standard requiring the Board to examine whether the
employees had reasonable alternative means to inform
consumers about their labor dispute, under the standard
not of Lechmere but rather the Board’s decision in Jean
Country, 291 NLRB 11, 13 (1988).17
Here, the General Counsel asks the Board to remand
for evidence on the issue of reasonable alternative means
or to conclude that the current record establishes that the
Ark employees were entitled to handbill at the porte-
cochere and the entrances to the Ark restaurants. The
General Counsel contends that denying the Ark
handbillers access to NYNY’s property would impair
their Section 7 rights because it would stymie effective
communication of their message to Ark customers, it
would more likely enmesh neutrals in the dispute, and it
would likely create a safety hazard. Moreover, according
to the General Counsel, no special circumstances warrant
consideration of whether a media campaign would be an
effective alternative. Thus, the General Counsel
contends that the existing record supports a finding that
no reasonable alternative means exist.18
B. The Charging Party
The Charging Party Union argues that because the Ark
employees are asserting their own statutory rights and are
seeking access to property on which they are regularly
and exclusively employed, Republic Aviation governs,
regardless of the lack of an employment relationship
between the Ark employees and NYNY. Citing NYNY’s
control over Ark, the Union contends that unless the Ark
17 In Lechmere, the Supreme Court expressly rejected the Jean
Country standard, at least as applied to nonemployee union organizers.
502 U.S. at 538.
18 The General Counsel answers the questions set forth in the
Board’s Notice of Oral Argument as follows: (1) The Ark employees
have Republic Aviation rights only in areas of New York New York’s
premises where they work and in common areas (parking lots,
hallways, and the lobby); (2) “invitee” status, based in property law
only, is not relevant, but the Ark employees’ relationship to New York
New York’s property is relevant to assessing the strength of their
statutory right; (3) Ark employees’ status differs materially from that of
the Lechmere/Babcock nonemployees; (4) Ark employees returned to
the property as off-duty employees, not as guests; and (5) the Act
protects employees’ rights to communicate with their employer’s
customers; Ark employees made a primary appeal, stood near their
worksites, and appealed to New York New York guests and customers
so as to reach potential Ark customers.
employees are treated as the equivalent of NYNY’s own
employees with respect to the areas in and around which
they work, their access to the property for organizing
purposes effectively will be foreclosed.
C. The Respondent
NYNY argues that Supreme Court precedent regarding
access rights recognizes only two groups: employees
with Republic Aviation rights and nonemployees, whose
access is subject to Lechmere. According to NYNY,
because the Ark employees have no employment
relationship with NYNY, Lechmere governs. NYNY
also contends that the Ark employees’ access claims are
particularly weak because they sought to engage in area-
standards handbilling, not organizational activity.
Applying Lechmere’s access standard, NYNY maintains
that the Ark employees had reasonable alternative means
of reaching consumers, such as a media campaign or
handbilling in public locations. Thus, according to
NYNY, it could lawfully eject the Ark employees from
its property.
D. Amici Supporting the Charging Party
Amicus AFL–CIO essentially endorses the Union’s
position, as do Professor Ellen Dannin and Teamsters
Local 439, who emphasize the Act’s protection of
workers outside the employment relationship.
E. Amici Supporting the Respondent
The United States Chamber of Commerce joins with
the Respondent in arguing that Lechmere controls here,
given the lack of an employment relationship between
the Ark employees and NYNY. The Venetian Casino
Resort takes the same position.
V. ANALYSIS
The narrow issue in this case is whether NYNY
violated Section 8(a)(1) of the Act when it prohibited
off-duty Ark employees from distributing handbills to
customers of Ark and NYNY at three locations on
NYNY’s property. Under the District of Columbia
Circuit’s remand, we must address the broader legal and
policy questions raised by the factual pattern here, which
encompasses two circumstances that pull in opposite
directions: the Ark employees were not employees of
NYNY, but they were regularly employed on NYNY’s
property by its contractor.
A.
In remanding, the District of Columbia Circuit
observed that the “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.” 313 F.3d at 590

NEW YORK NEW YORK HOTEL & CASINO 911
(emphasis added). The Court added that its “analysis of
the Supreme Court’s opinions . . . yields no definitive
answer.” Id. We necessarily start with that question.
1.
As a preliminary point, it is clear that the undisputed
lack of an employment relationship between the Ark
employees and NYNY is not dispositive here.19 The Act
clearly regulates the relationship between an employer
(such as NYNY) and employees of other employers
(such as the employees of Ark). The Act contains not
only a broad definition of the term “employee,” but one
whose breadth is aimed directly at the question at issue.
The Act provides that

[t]he term ‘employee’ shall include any employee, and
shall not be limited to the employees of a particular
employer, unless the Act explicitly states otherwise. . . .

Section 2(3), 29 U.S.C. § 152(3) (emphasis added). The
precise terms of the Act’s prohibitions also make clear that
an employer’s action toward the employees of other
employers can constitute an unfair labor practice. The
prohibition at issue in this case, contained in 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.” The
prohibition is not limited to interference with the rights of
his employees. In contrast, the prohibition in Section
8(a)(5) is so limited, providing that it is an unfair labor
practice for an employer “to refuse to bargain collectively
with the representatives of his employees.” (Emphasis
added.)20 Finally, further evidence of Congress’ clear intent
regarding this issue is found in the Act’s definition of the
statutory term “labor dispute” to include “any controversy
concerning . . . the association or representation of persons
in negotiating, fixing, maintaining, changing, or seeking to
arrange terms or conditions of employment, regardless of
whether the disputants stand in the proximate relation of
employer and employee.”21
In each of these ways, Congress made clear in the text
of the Act that the term “employee” does not refer to a
19 No party argues that the contractual or economic relationship
between New York New York and Ark sufficed to make New York
New York a joint employer of Ark’s employees, notwithstanding the
control that New York New York exercised over certain aspects of
Ark’s operations. See generally Airborne Express, 338 NLRB 597
(2002).
20 “[W]hen ‘Congress includes particular language in one section of
a statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.’” Barnhart v. Sigmon Coal Co., 534
U.S. 438, 452 (2002) (quoting Russello v. U.S., 464 U.S. 16, 23
(1983)).
21 29 U.S.C. § 152(9).
relationship between individual workers and a single
employer and, specifically, that the prohibition contained
in Section 8(a)(1) of the Act extends to actions by
employers affecting employees of other employers. As
the Supreme Court explained in Phelps Dodge Corp. v.
NLRB, 313 U.S. 177, 192 (1941) (internal citations
omitted):

This was not fortuitous phrasing. It had reference to
the controversies engendered by constructions placed
upon the Clayton Act and kindred state legislation in
relation to the functions of workers’ organizations and
the desire not to repeat those controversies. . . . The
broad definition of “employee,” “unless the Act
explicitly states otherwise,” as well as the definition of
“labor dispute” in § 2(9), expressed the conviction of
Congress “that disputes may arise regardless of
whether the disputants stand in the proximate relation
of employer and employee.”

Based on these clear textual indications of Congress’
intent, the Board as well as the courts have held in a wide
variety of contexts that “an employer under Section 2(3)
of the Act may violate Section 8(a) not only with respect
to its own employees but also by actions affecting
employees who do not stand in such an immediate
employer/employee relationship.” International Shipping
Assn., 297 NLRB 1059, 1059 (1990). See, e.g., Hudgens
v. NLRB, 424 U.S. 507, 510 fn. 3 (1976) (quoting the
language of Sec. 8(a)(1) and observing that “[t]he Board
has held that a statutory ‘employer’ may violate § 8(a)(1)
with respect to employees other than his own”); Fabric
Services, 190 NLRB 540 (1971) (employer/owner
unlawfully required employee of contractor working
onsite to remove union insignia). Cf. Five Star
Transportation, Inc. v. NLRB, 522 F.3d 46, 50–51 (1st
Cir. 2008) (citing Sec. 2(3) in holding employer liable
for retaliatory refusal to hire workers who were not its
employees when they engaged in statutorily protected
activity).
The Ark employees, then, are statutorily protected
employees, and NYNY is a covered employer that can,
under certain circumstances, be held to violate the Ark
employees’ statutory rights, even though the Ark
employees are not employees of NYNY.
2.
The primary question posed by the court of appeals
could be read as posing an either/or choice for the Board,
requiring us to treat the Ark employees either as
equivalent to NYNY employees (and thus granting them
full Republic Aviation access rights) or as equivalent to
nonemployee union organizers (and so applying the

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 912
much more restrictive access test of Lechmere). Both the
Union and NYNY frame the issue this way—and,
predictably, propose different answers, the Union
insisting that Republic Aviation governs and NYNY
pointing to Lechmere.
We reject this framework. Rather, we seek to establish
an access standard that reflects the specific status of the
Ark employees as protected employees who are not
employees of the property owner, but who are regularly
employed on the property. Neither Lechmere nor
Republic Aviation involved this category of persons.
Neither case, in the court’s words, “yields [a] definitive
answer” here. 313 F.3d at 590.
In Lechmere, the Supreme Court dealt with the claims
of “nonemployee”22 union organizers seeking access to
an employer’s property for the purpose of informing the
employer’s employees of their Section 7 right to self-
organization and encouraging them to exercise that right.
Reaffirming its earlier decision in Babcock & Wilcox, the
Court viewed the organizers as exercising not their own
Section 7 rights, but rather rights deriving from the
Section 7 rights of the employees they sought to contact.
502 U.S. at 532. Lechmere holds that where access to an
employer’s private property is sought by nonemployee
union organizers seeking to exercise Section 7 rights
“derivatively,” the threshold question is whether the
employees are otherwise inaccessible. Id. at 537–538.
Only if such a showing is made does a balancing of
employee Section 7 rights and employer property rights
come into play. Id. at 538.23
As the District of Columbia Circuit has explained,
simply because the Ark employees were not employees
of NYNY does not mean that the holding of Lechmere
controls. Rather, we see important distinctions, as a
matter of both law and policy, between the Ark
employees and the nonemployee union organizers
involved in Lechmere.
First, Ark’s employees were not seeking access to
NYNY’s property for the purpose of urging others to
exercise their Section 7 rights. They were statutorily
protected employees directly exercising their own
Section 7 right to self-organization.
Second, the policy implications of applying the
Lechmere test—which the District of Columbia Circuit
has invited us to consider, 313 F.3d at 590—are
22 The Supreme Court in Lechmere classified the union organizers as
“nonemployees.” We employ that terminology here even though, as
employees of a labor organization, the union organizers were
employees protected by the Act.
23 Lechmere also recognizes that restricting nonemployee access will
violate Sec. 8(a)(1) if done in a manner that discriminates against union
activity. Id. at 535.
troubling. In all but exceptional cases, the employees of
a contractor who work regularly on another employer’s
property would be accorded diminished rights based
merely on the location of their workplace, without any
showing that the resulting limitations on the employees’
rights are necessary to protect any legitimate interests of
their employer or the property owner. According such
employees only the rights of union organizers based
solely on the lack of an employment relationship with the
property owner would often create serious obstacles to
the effective exercise of their Section 7 rights—even
though the property owner derives an economic benefit
from their work. Indeed, linking full Section 7 rights to
the existence of a particular employment relationship
might create an incentive for businesses to structure their
relationships with each other and thus with workers so as
to restrict workers’ statutory rights, in contravention of
the declared congressional policy of “protecting the
exercise by workers of full freedom of association [and]
self-organization.” 29 U.S.C. § 151.24
This approach would be most problematic in the many
situations where the employer of the employees who
work regularly on the property has no leasehold interest
or fixed place of work within the owner’s property. For
example, janitors employed by a cleaning company who
work regularly in an office building not owned by their
employer should not be denied Section 7 rights on the
sole grounds that they work on the property of an
employer other than their own. As explained, the
National Labor Relations Act expressly does not require
that employees be employed by a particular employer in
order to confer rights on the employees or impose
obligations on the employer to respect the employees’
rights. We see no persuasive reason to adopt a rule that,
in essence, establishes such a requirement
administratively and thereby relegates some workers to
second-class status under the Act based solely on the
location of their work.
Finally, the Ark employees are not “strangers”25 to or
“outsiders”26 on the property like the union organizers in
Lechmere and Babcock & Wilcox. Whatever the limits
of the invitation extended to Ark employees under state
property law, the Ark employees worked on the property
every day for a party that had both a contractual and a
close working relationship with NYNY. For this reason
24 See Scott Hudgens, 230 NLRB 414, 418 (1977) (“A contrary
holding would enable employers to insulate themselves from Section 7
activities by simply moving their operations to leased locations on
private malls, and would thereby render Section 7 meaningless as to
their employees.”).
25 Eastex, Inc. v. NLRB, 437 U.S. 556, 571 (1978).
26 Hudgens v. NLRB, 424 U.S. at 522.

NEW YORK NEW YORK HOTEL & CASINO 913
as well, we view the Ark employees very differently than
nonemployee union organizers.
For each of these reasons, discussed in more detail
below, we conclude that Lechmere and Babcock &
Wilcox do not control here. Nevertheless, we are
mindful of the Supreme Court’s admonition that the
“distinction between rules of law applicable to
employees and those applicable to nonemployees” is
“one of substance.” Babcock & Wilcox, 351 U.S. at 113.
See Lechmere, 502 U.S. at 537. Given that distinction,
this case cannot be decided—as the Board has decided
similar cases in the past—by mechanically applying the
established rules of law articulated in Republic Aviation,
supra, which govern the ability of employees to engage
in solicitation and distribution on the property of their
own employer.27 Just as we see differences between the
Ark employees and the union organizers in Lechmere, so
also do we recognize the distinction between persons
employed by a contractor and the employees of the
property owner itself.
3.
Our answer to the court of appeals’ central question in
remanding this case, then, is reached by analyzing the
statutory rights of such workers and the property rights
and managerial interests of the property owner, seeking
an accommodation between the two. In employing this
form of analysis, we are guided by the Supreme Court’s
observation that

[u]nder the [National Labor Relations] Act, the task of
the Board, subject to review by the courts, is to resolve
conflicts between § 7 rights and private property rights,
“and to seek a proper accommodation between the
two.” What is “a proper accommodation” in any
situation may largely depend upon the content and the
context of the § 7 rights being asserted.
. . . Accommodation between employees’ § 7 rights and
employers’ property rights . . . “must be obtained with
as little destruction of one as is consistent with the
maintenance of the other.”
27 To the extent that our decisions in Southern Services, 300 NLRB
1154 (1990), and Gayfers Department Store, 324 NLRB 1246 (1997),
did not recognize that distinction, we depart from and overrule their
rationales, but not their holdings; for purposes of today’s decision, we
need not address the correctness of their holdings on their respective
facts.
Our dissenting colleague argues that language in our decision today
is inconsistent with the Board’s decision in Postal Service, 339 NLRB
1175 (2003), which involved the access rights of contractor employees
who worked regularly, but not exclusively, on the property of someone
other than their employer. Because Postal Service is clearly
distinguishable on its facts, however, we need not and do not address its
continuing validity in this case.

. . . .

. . . The locus of that accommodation . . . may fall at
differing points along the spectrum depending on the
nature and the strength of the respective § 7 rights and
private property rights asserted in any given context.

Hudgens v. NLRB, 424 U.S. at 521–522 (citations omitted).
After Lechmere, the Board—with the approval of both
the Sixth Circuit and the District of Columbia Circuit, the
latter in a decision that came after the remand decision
here—has employed such an analysis in cases analogous
to this one involving the access rights of off-duty
employees of the employer/property owner who are
employed at locations separate from where they seek
access. See Hillhaven Highland House, 336 NLRB 646
(2001) (establishing test governing access rights of
offsite employees), enfd. First Healthcare Corp. v.
NLRB, 344 F.3d 523 (6th Cir. 2003); ITT Industries, Inc.
v. NLRB, 413 F.3d 64 (D.C. Cir. 2005) (affirming Board
test adopted in Hillhaven Highland House).
In seeking the proper accommodation here, we thus do
not write on a blank slate. Under Republic Aviation, it is
well established that an employer that operates on
property it owns ordinarily violates the Act if it bars its
employees from distributing union literature during their
nonwork time in nonwork areas of its property.
Moreover, such an employer’s off-duty employees have
a presumptive right to return to their work site and gain
access to exterior, nonwork areas for purposes of
otherwise protected solicitation under Tri-County
Medical Center, 222 NLRB 1089 (1976), and Nashville
Plastic Products, 313 NLRB 462 (1993).28 Finally, the
employer’s off-duty employees who are employed at
another location presumptively have the same rights as
off-duty employees who work at the location at issue.
Hillhaven Highland House, supra.29 Under these
precedents, as the court of appeals recognized, if NYNY
had barred its own employees from engaging in the
expressive activity engaged in by the Ark employees in
28 See also ITT Industries v. NLRB, 251 F.3d 995, 999 (D.C. Cir.
2001) (“It is likewise well-established that the Board has the authority,
under Section 8(a)(1) of the NLRA, to prevent employers from posting
parking lots against off-duty employees unless the employer present[s]
valid business justifications for the restriction.”); NLRB v. Southern
Maryland Hospital Center, 916 F.2d 932, 939–940 (4th Cir. 1990);
NLRB v. Ohio Masonic Home, 892 F.2d 449, 453 (6th Cir. 1989);
NLRB v. Pizza Crust Co. of Pa., 862 F.2d 49, 52–55 (3d Cir. 1988) (all
upholding the Board’s rule).
29 See also ITT Industries, 341 NLRB 937, 939–941 (2004), enfd.
413 F.3d 64 (D.C. Cir. 2005); Eagle-Picher Industries, 331 NLRB 169,
169 fn. 2 (2000), Southern California Gas Co., 321 NLRB 551, 551 fn.
1 & 557–558 (1996); and Postal Service, 318 NLRB 466, 466 (1995).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 914
the same locations, it would have violated the Act. In
conducting the analysis here, then, we ask whether the
relevant rights and interests are different in this case
because the employees are not employees of the property
owner (even though they are regularly employed on the
property) and, if so, how that affects the proper
accommodation.
The court of appeals found that our original decision
“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.” 313 F.3d at 588. We have thus taken as our
central task on remand to explore whether and, if so, 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.”
B.
We turn now to a closer, more practical examination of
the Section 7 rights involved in this case and the property
rights and managerial interests with which they must be
accommodated. The court of appeals has asked us to
probe beyond the abstract distinctions between
employees and nonemployees as well as between
invitees and trespassers. Specifically, the court asked us
to consider “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.”
313 F.3d at 590. As we will explain, the balance here
tips in favor of finding that NYNY unlawfully excluded
the off-duty Ark employees from its property.
1.
We begin by considering the Ark employees’ rights
and interests in relation to the specific activity they
engaged in on NYNY’s property. As part of a campaign
to win union representation for themselves, the Ark
employees distributed handbills to Ark’s and NYNY’s
customers, seeking their support in getting Ark to
“recognize and negotiate a fair contract with its
workers.”
In distributing handbills to support their own
organizing efforts, Ark employees—who indisputably
are covered by the Act, as protected employees under
Section 2(3)—were exercising their own Section 7 rights.
In Lechmere, the Supreme Court pointed out that the Act
“confers rights only on employees, not on unions or their
nonemployee organizers,” whose rights are derived from
the right of employees to learn about the advantages of
self-organization from others. 502 U.S. at 532 (emphasis
in original). Thus, as the Court explained, there is a
“critical distinction between the organizing activities of
employees (to whom § 7 guarantees the right of self-
organization) and nonemployees (to whom § 7 applies
only derivatively).” Id. at 533. This case involves the
organizing activities of employees whose right to self-
organization is statutorily guaranteed, not persons “to
whom Section 7 applies only derivatively.” That the Ark
employees lack an employment relationship with NYNY
does not make their Section 7 rights in any way
“derivative” of the rights of other employees.30
Indeed, the Ark employees were not “outsiders,” in
contrast to the union organizers in Babcock & Wilcox
and Lechmere. This distinction is relevant in considering
both the weight of the employees’ rights and the extent to
which their exercise interferes with the owner’s rights
and interests (as discussed below). The Ark employees
were regularly employed on NYNY’s property by the
company’s contractor. The hotel and casino complex
was their workplace. They worked not only inside Ark’s
restaurants but throughout the premises, providing room
service, carrying supplies, and servicing and patronizing
NYNY’s employee cafeteria. As the Supreme Court has
observed, the workplace is the “one place where
employees clearly share common interests and where
they traditionally seek to persuade fellow workers in
matters affecting their union organizational life and other
matters related to their status as employees.” Eastex, 437
U.S. at 574 (internal quotation marks omitted). It seems
unlikely, as a practical matter, that Ark employees would
view the limits of Ark’s leasehold as setting the
boundaries for engaging in Section 7 activity at work.
Yet NYNY’s argument—which would have the Board
treat Ark employees no differently from union
organizers—suggests the hotel could bar an Ark
employee from handing a union card to a fellow
30 In access cases, the District of Columbia Circuit has approved the
Board’s taking into account whether an access claim was derivative or
not. See ITT Industries v. NLRB, 413 F.3d at 70–71 (affirming Board’s
conclusion, following remand, that offsite employees of property owner
exercised “personal rather than derivative” rights).
We do not read Food & Commercial Workers Local 880 v. NLRB,
74 F.3d 292, 298 (D.C. Cir. 1996), cert. denied 519 U.S. 809 (1996), as
foreclosing the Board, here and in similar cases, from giving weight to
whether individuals are seeking to exercise their own Sec. 7 rights as
employees or merely urging others to do so. The issue in Food &
Commercial Workers was whether Lechmere applied (as the Board had
found it did) when union organizers and union members not employed
on the property sought access not for the purpose of organizing activity
(as in Lechmere), but rather to pursue area standards and consumer
boycott activity. The court rejected the union’s argument that because
the right to engage in such activity did not derive from the rights of the
property owner’s employees, the access claim at issue was actually
stronger than the claim asserted, unsuccessfully, in Lechmere. 74 F.3d
at 298–299. The crux of the court’s holding was that Lechmere applies
to all claims of access by individuals not employed by an employer
working on the premises.

NEW YORK NEW YORK HOTEL & CASINO 915
employee in the hotel’s parking lot, as they walked
together through the hotel to the restaurant, or as they sat
together at lunch in NYNY’s employee cafeteria.
Even if the Ark employees were exercising their own
rights proximate to their own workplace, we must
address the District of Columbia Circuit’s question:

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)? Compare United Food &
Commercial Workers, 74 F.3d at 298. (Derivative
access rights, the Supreme Court has held, stem
“entirely from on-site employees’ § 7 organizational
right to receive union-related information.” ITT
Industries, 251 F.3d at 997.)

313 F.3d at 590. As reflected in a decision cited by the
court, there is some support in the circuit’s case law for
finding certain Section 7 rights weightier than others. Food
& Commercial Workers, 74 F.3d at 298 (distinguishing
between organizational activity and other union activities
directed at consumers in upholding Board’s application of
Lechmere test to area standards and consumer boycott
activity by union organizers and nonemployee members).31
But what matters here is less the intended audience of the
Ark employees than that the Ark employees were exercising
their own rights under Section 7 in organizing on their own
behalf.32 Indeed, the Ark employees’ very act of appealing
for public support immediately outside their workplace
communicated their determination to form a union to their
fellow employees.33 Moreover, the purpose of the
communication to consumers (and, indirectly, to
employees)—to gain support in organizing—rests at the
core of what Congress intended to protect through Section
7. See Sears, Roebuck & Co. v. San Diego County District
Council of Carpenters, 436 U.S. 180, 206 fn. 42 (1978)
(“[T]he right to organize is at the very core of the purpose
for which the [National Labor Relations Act] was
enacted.”). This is true regardless of the primary audience
31 See also Hudgens, 424 U.S. at 521–522 (the “locus of
accommodation” of Sec. 7 rights and property rights “may fall at
differing points along the spectrum depending on the nature and
strength of the respective § 7 rights and private property rights asserted
in any given context”).
32 The dissent would create an entirely new hierarchy of rights
resting not only on the object of their exercise (i.e., self-organization v.
other objects), but also on the manner of their exercise (self-
organization via communication with other employees v. seeking
support from consumers or the general public).
33 Moreover, even if the flyers’ primary audience was consumers,
other Ark employees might have received a flyer on their way in or out
of work and the flyers’ message—that Ark employees were underpaid
and should have union representation—would have had significance for
employees.
of the organizational communication. As the court of
appeals explained in a decision issued after the remand of
this case, which involved employee solicitation of
nonemployees on their employer’s property:
[N]either [the circuit] nor the Board has ever drawn a
substantive distinction between solicitation of fellow
employees and solicitation of nonemployees.

Stanford Hospital & Clinics v. NLRB, 325 F.3d 334, 343
(D.C. Cir. 2003).34 See also Santa Fe Hotel & Casino, 331
NLRB 723, 728–729 (2000) (holding that employer
unlawfully prohibited off-duty employees from handbilling
customers at entrances to hotel and casino, seeking support
in persuading employer to bargain for first contract). Food
& Commercial Workers, supra, is not to the contrary.35
Indeed, in the context of this case, the intended
audience of the Ark employees is a factor that
strengthens, rather than weakens, their statutory claim to
access, certainly with respect to the areas in front of the
Ark-operated restaurants. At those locations, Ark
employees were uniquely able to identify and
communicate with the relevant subset of NYNY
customers—those considering whether to patronize an
Ark restaurant—with minimal difficulty and expense.
See Scott Hudgens, 230 NLRB at 416 (explaining that
intended audience of picketers, potential customers of
store, “became established as such only when individual
shoppers decided to enter the store”). For this reason, the
location of the expressive activity here—the very
threshold of the employees’ own workplace—has been a
central site of protected Section 7 activity since the
passage of the Act. Wholly excluding the Ark
handbillers from these uniquely effective locations would
place a serious burden on the exercise of their Section 7
rights to communicate with the relevant members of the
public.
In sum, we find that the statutorily-recognized interests
of the Ark employees, as implicated here, are much more
closely aligned to those of NYNY’s own employees
(who, under our law, would have been entitled to the
access sought) than they are to the interests of the union
34 The primary issue in Stanford Hospital was whether an employer
could prohibit employees from soliciting nonemployees and
distributing union materials to them anywhere on its property.
Affirming the Board, the court held that the employer’s rule was
overbroad. “What matters under Lechmere,” the Stanford Hospital
court observed, “is not the identity of a solicitor’s intended audience
. . . but whether the solicitor is employed by the property owner or
otherwise lawfully on the employer’s property.” 325 F.3d at 343.
35 In Food & Commercial Workers, not only were none of the
individuals at issue employed on the property, but in neither of the two
consolidated cases was their message directly related to organizing. In
one case, it related to a layoff, and, in the other, it asked consumers to
boycott a nonunion store. 74 F.3d at 295–297.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 916
organizers at issue in Lechmere and Babcock & Wilcox.
As we have explained, despite their lack of an
employment relationship with NYNY, the Ark
employees are statutorily protected employees, who were
exercising their own Section 7 rights of self-organization,
not rights derived from those of other employees. They
were not strangers or outsiders to NYNY’s property;
rather, they worked there regularly, for an employer with
a close economic relationship to NYNY. Finally, they
sought access to locations that were uniquely suited to
the effective exercise of their statutory rights.
2.
We turn now to a consideration of NYNY’s interests in
denying off-duty Ark employees access to portions of its
property outside Ark’s leasehold for purposes of
distributing literature.36 Most fundamentally, there is no
question that—countervailing considerations of Federal
labor law aside—NYNY, as the property owner, had a
right to exclude the Ark employees. “[O]ne of the
essential sticks in the bundle of property rights is the
right to exclude others.” PruneYard Shopping Center v.
Robins, 447 U.S. 74, 82 (1980). Any rule derived from
Federal labor law that requires a property owner to
permit unwanted access to his property for a
nonconsensual purpose necessarily impinges on the right
to exclude. We must, and do, give weight to that fact.
As a corollary, it also seems clear that, purely from the
perspective of state property law, the Ark employees
were trespassers at the moment they began to distribute
handbills. Whatever their status as NYNY’s invitees at
other times and for other purposes, there is no suggestion
that the off-duty Ark employees had an invitation from
NYNY that privileged them to distribute handbills to the
public in the locations involved here. This fact, too,
must be taken into account, although it cannot be
dispositive consistent with the well-established principle
that state law property rights sometimes must yield to the
imperatives of Federal labor law.37
36 The dissent states that we pay only “lip service to the owner’s
property interest.” In fact, and in contrast to the dissent, we proceed to
carefully analyze that interest and the legal and practical means
available to the owner to protect it in this precise situation.
37 As we have observed in an analogous situation, with the approval
of the District of Columbia Circuit, because “any employee engaged in
activity to which the employer objects on its property, might be deemed
a trespasser, not an invitee,” “[t]here is an inherent tension . . . between
an employer’s property rights and the Section 7 rights of its
employees.” Hillhaven Highland House, 336 NLRB at 649 (addressing
access rights of offsite, off-duty employees).
This tension, the District of Columbia Circuit has held, “cannot be
resolved merely by reference to the law of trespass.” ITT Industries v.
NLRB, 413 F.3d at 72. As the ITT court explained, “[p]urely from the
perspective of trespass law, on-site employees may exceed the scope of
their invitation to access, and so not be ‘rightfully’ on, the employer’s
Apart from its state law property right to exclude,
NYNY also has a legitimate interest in preventing
interference with the use of its property. Whether that
interest is deemed a property right or a “management
interest,” perhaps ultimately derived from property
ownership,38 it is entitled to appropriate weight. Indeed,
even under Republic Aviation, an employer can impose
restrictions on its own employees’ solicitation and
distribution if the restrictions are shown to be necessary
to maintain production and discipline. See Beth Israel
Hospital v. NLRB, 437 U.S. 483, 492–493 (1978);
Republic Aviation, 324 U.S. at 803 fn. 10. On the
records here, however, the judges found, and we agree,
that the Ark employees’ handbilling did not interfere
with operations or discipline at NYNY’s complex. The
handbilling did not adversely affect the ability of
customers to enter, leave, or fully use the facility or the
ability of Ark or NYNY employees to perform their
work, and it was not a violation of any rule that NYNY
attempts to defend as necessary to ensure operations or
discipline.
We must nevertheless consider the fact that the Ark
employees had no employment relationship with NYNY
and ask whether that fact might justify a prophylactic
rule limiting their access, despite the lack of any
disruption or misconduct in this case. In considering the
access rights of offsite, off-duty employees, we have
pointed out that the existence of an employment
relationship gives the employer some measure of control
over the employees, independent of its property rights,
which is not available in relation to “strangers” such as
union organizers. See Hillhaven Highland House, 336
NLRB at 649. It is appropriate, then, to consider the
property when they handbill at a place or time forbidden by their
employer.” Id. at fn. 2, citing Restatement (Second) of Torts § 168
(1965).
In its remand decision here, the District of Columbia Circuit raised
the possibility that the Ark employees might be considered “invitees of
some sort but with rights inferior to those of NYNY’s own employees”
or, alternatively, as “guests,” for whom NYNY was entitled to set the
terms of access. 313 F.3d at 590. We see no clear basis in property
law for regarding the Ark handbillers as invitees, but, as explained, we
also conclude that viewing them as trespassers for some purposes and
guests for others cannot be dispositive of the access issue presented. In
short, the categories of property law can take the analysis here only so
far.
38 See Hudgens v. NLRB, 424 U.S. at 522 fn. 10 (distinguishing
Republic Aviation from Babcock & Wilcox by observing that “when the
organizational activity was carried on by employees already rightfully
on the employer’s property,” the “employer’s management interests,
rather than his property interests” were involved); Eastex, 437 U.S. at
574 (in evaluating employees’ in-plant distribution of literature, Board
was “entitled to view the intrusion by employees on the property rights
of their employer as quite limited in this context as long as the
employer’s management interests are adequately protected”).

NEW YORK NEW YORK HOTEL & CASINO 917
absence of an employment relationship in cases like this
one in evaluating NYNY’s interests. Here, however, that
deficit is mitigated by a different means through which
NYNY could exercise control over the Ark employees:
its relationship with the employees’ employer, Ark. This
mechanism is not available to a property owner with
respect to persons who are truly strangers to the property,
like the union organizers in Lechmere and Babcock &
Wilcox.
Given the voluntary and mutually beneficial
arrangement between NYNY and Ark, NYNY
reasonably could have anticipated that Ark employees
would seek access to its property for Section 7 activity
(access that, under existing law, NYNY would have been
compelled to grant to its own employees), and NYNY
was free to negotiate contractual terms with Ark
sufficient to protect its interests in relation to Ark’s
employees.39 In fact, NYNY’s contract with Ark did
exactly that, requiring Ark to make all reasonable efforts
to ensure that Ark employees

abide by any reasonable rules and regulations as [New
York New York] may, from time to time, reasonably
adopt for the safety, care and cleanliness of [Ark’s
premises], or the Hotel or for the preservation of good
order thereon or to assure the operation of a first-class
resort hotel facility.

NYNY’s contract with Ark also imposed specific
requirements on the contractor in relation to its employees,
including that they be subject to drug testing.40
Furthermore, NYNY’s control over Ark’s employees,
through its relationship with Ark, extended specifically to
39 In Scott Hudgens, 230 NLRB at 418, the Board reasoned that “[i]n
leasing the shops to the merchants, Hudgens necessarily submitted his
own property rights to whatever activity, lawful and protected by the
Act, might be conducted against the merchants had they owned, instead
of leased, the premises.”
After Lechmere, the Board has continued to require construction
contractors to grant union agents access to their property, in order to
carry out representational duties on behalf of a subcontractor’s
employees pursuant to the provisions of a collective-bargaining
agreement between the subcontractor and the union, reasoning that the
contractor, “by soliciting other employers to perform work at the
jobsite, ‘invited’ subcontractors . . . onto the jobsite, and thus subjected
its ‘property rights’ to the [u]nion’s contractual ‘access’ rights with
those subcontractors.” CDK Contracting Co., 308 NLRB 1117 (1992).
See also Wolgast Corp. v. NLRB, 349 F.3d 250 (6th Cir. 2003), enfg.
334 NLRB 203 (2001).
40 Ark’s employee handbook informed Ark employees:
Please keep in mind that many of the policies stated in our handbook
are in part the result of our tenancy at the New York-New York Hotel
Casino. Employee entrances, parking, drug testing, name tags,
conduct at the hotel while off and on duty are just some of the rules
we have included as it relates to Hotel policies, not necessarily our
policies.
their off-duty, on-premises conduct, for example, to barring
them from wearing their uniforms and entering the bars
inside the hotel. 334 NLRB at 767–768 fn. 8. Even absent
the express contractual commitment on the part of Ark to
use its employment authority to enforce NYNY’s rules and
so protect against disruption of the hotel’s operations,
NYNY and Ark share an economic interest in ensuring that
Ark employees do nothing that might interfere with the
operations of the hotel. NYNY is simply wrong, then, when
it argues that “there existed no means for NYNY to regulate
or control the infringement on its private property other than
through reliance on state trespass laws.” Statement of
Position at 9.
NYNY’s ability to protect its operational and property
interests in relation to its contractors’ employees is the
rule, not the exception. The Board’s case law reflects
long and extensive experience with contractual
relationships between employer/contractors and property
owners. Our experience suggests that such a relationship
ordinarily permits the property owner to quickly and
effectively intervene, both through the employer and
directly, to prevent any inappropriate conduct by the
employer’s employees on the owner’s property. As the
judge found in one case affirmed by the Board, “[a]n
employer receiving contracted labor services will of
necessity exercise sufficient control over the operations
of . . . the contractor at its facility so that it will be in a
position to take action to prevent disruption of its own
operations. . . .” Southern California Gas Co., 302
NLRB 456, 461 (1991). Property owners often give
directions to employees of contractors through the
contractors’ onsite managers and supervisors.41
Contractor employees, then, are ordinarily deterred from
engaging in misconduct not only by the presence of their
own employer on site (whose managers and supervisors
are just as likely as those of the owner to immediately
respond to any disruptive behavior), but also by the
property owner’s ability to direct the employer’s
managers and supervisors to take action.42 In specific
41 See, e.g., J. P. Mascaro & Sons, 313 NLRB 385, 387 (1993)
(owner’s maintenance manager set schedule for needed work and gave
it to contractor’s lead, onsite mechanic who assigned work to
contractor’s employees), enfd. sub nom. NLRB v. Solid Waste Services,
Inc., 38 F.3d 93 (2d Cir. 1994); Southern California Gas, 302 NLRB at
459 (“The general practice was that assignments, orders, requests, and
complaints were given [by owner to contractor’s supervisors], and that
these supervisors took the necessary steps to accomplish the task.”);
International Shipping Assn., 297 NLRB at 1066 (warehouse manager
patrolled the premises and, when he observed a problem, informed
contractor’s supervisor).
42 See, e.g., TLI, Inc., 271 NLRB 798, 799 (1984) (When a
contractor-employed driver “engages in conduct adverse to
[manufacturer/owner’s] operations, [manufacturer/owner] supplies
[contractor] . . . with an ‘incident report’ whereupon a [contractor]

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 918
instances, such as when they observe misconduct,
property owners themselves often direct contractors’
employees without the mediation of the
contractor/employer’s agents.43 Finally, property owners
can exercise their authority to direct contractors to
remove employees from the premises and not permit
them to return.44 Such exclusion by the owner may
result in the contractor terminating the employee.45 The
owner need not even make a request of the contractor, in
many instances, as the contractor has every incentive not
to permit its employees to interfere with the owner’s
operations and thereby jeopardize its contract.46
These cases support our conclusion that property
owners ordinarily are able to protect their property and
operational interests, in relation to employees of
contractors working on their premises, without resort to
state trespass law.47 Like these property owners, NYNY
representative investigates. Disciplinary notices, or necessary actions,
are issued by [contractor].”), affd. mem. sub nom. Teamsters Local 326
v. NLRB, 772 F.2d 894 (3d Cir. 1985).
43 See, e.g., Service Employees Local 254 (Women & Infants
Hospital), 324 NLRB 743, 747 (1997) (college directed janitorial
contractor’s employees “to clean spills, stock bathrooms, or perform
similar ‘emergency’ tasks”); International Shipping Assn., 297 NLRB
at 1066 (warehouse manager patrolled the premises and when he
observed a problem either informed the contractor’s supervisor or
instructed contractor’s employees).
44 See, e.g., Akal Security, Inc., 355 NLRB 598 (2010) (U.S.
Marshals Service revoked credentials of two employees of security
contractor working in courthouses, leading to their termination the
following day); Service Employees Local 254, 324 NLRB at 746
(college directed janitorial contractor to replace employees, including
one “as part of an effort to curb petty thefts”); Southern California Gas,
302 NLRB at 458–459 (after owner’s employee found contractor’s
employee sleeping on the job, owner informed contractor that employee
would no longer be permitted on the premises); Osco Drug, Inc., 294
NLRB 779, 781 (1989) (if customer asked contractor/carrier to remove
particular driver from its account, contractor would do so); Cabot
Corp., 223 NLRB 1388, 1389 (1976), affd. 561 F.2d 253 (D.C. Cir.
1977) (contract provided that owner could insist that contractor
“remove employees from the job”).
45 See, e.g., Bowling Transp., 336 NLRB 393, 393–394 (2001), enfd.
352 F.3d 274 (6th Cir. 2003) (employer violated Sec. 8(a)(3) by
discharging employees after property owner barred them from the
premises due to suspected union activity).
46 See, e.g., Osco Drug, 294 NLRB at 781 (after contractor-
employed driver “had repeatedly and insistently rung the bell at the
entrance of [owner’s property],” contractor disciplined him and warned
“that he would not be allowed to work for [owner] if there were a
repetition of this type of incident”).
47 In fact, the property owner’s ability to protect its legitimate
interests in controlling access may be greater in relation to employees
of contractors who work regularly on the owner’s property than in
relation to the owner’s own, offsite employees who have a presumptive
right to enter exterior, nonwork areas to engage in expressive activity.
See Hillhaven; ITT. Whatever identification and access control policies
are in place at the property presumably already apply to contractors’
employees, but may not, in many instances, apply to the property
owner’s own, offsite employees. In addition, as a practical matter, the
property owner’s onsite managers, supervisors, and security personnel
is very differently situated with respect to Ark employees
seeking access to its property than were the property
owners in Lechmere and Babcock & Wilcox faced with
union organizers who sought access to their property.
C.
The Board’s task is thus to find an accommodation
between the Ark employees’ Section 7 interests and
NYNY’s property rights and managerial interests as we
have analyzed them. Careful consideration of the
questions asked by the court of appeals, and of our own
case law and experience, leads us to conclude that the
property owner generally has the legal right and practical
ability to fully protect its interests through its contractual
and working relationship with the contractor (as this case
illustrates), but the contractors’ employees have no
parallel ability to protect their statutory rights and
legitimate interests in and around their workplace
without our intervention.
Nevertheless, our decision is a relatively narrow one.
We address only the situation where, as here, a 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.48
We conclude 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
are more likely to be familiar with contractors’ employees who work on
the owners’ property every day than with the owner’s own employees
who work at a separate site. Finally, if there is misconduct, property
owners can go immediately to contractors’ onsite supervisors or
managers and demand redress. In the case of a large, multisite
operation (e.g., a nursing home chain such as Hillhaven), that process
may be more complex.
In this case, NYNY’s security department issued badges and
identification cards to all Ark employees (reading “New York New
York, Ark Las Vegas”) just as it did to NYNY employees. Ark, 343
NLRB at 1283; New York New York, 334 NLRB at 767. The Ark
employees had to use the identification cards when they arrived at work
in the hotel. In fact, the handbilling employees presented their
identification cards when they were confronted by hotel security. Tr.
61 (Case 28–CA–14519). Compare First Healthcare, 344 F.3d at 541
(“[I]f [an employer/owner] is faced with a security concern by not
being able to identify offsite employees in an orderly or reasonable
fashion, the Board has taken account of such a situation and may well
consider the employer’s denial of access in such a situation to be
justified.”).
48 We conclude that this case does not require us to decide whether
the Ark employees would be entitled to access to all other or, indeed,
any other nonwork areas of the hotel and casino.

NEW YORK NEW YORK HOTEL & CASINO 919
discipline (as those terms have come to be defined in the
Board’s case law). Thus, any justification for exclusion
that would be available to an employer of the employees
who sought to engage in Section 7 activity on the
employer’s property would also potentially be available
to the nonemployer property owner, as would any
justification derived from the property owner’s interests
in the efficient and productive use of the property. The
standard we adopt today is thus analogous to that
adopted in Hillhaven Highland House, which was
enforced by the District of Columbia Circuit.49
We leave open the possibility that in some instances
property owners will be able to demonstrate that they
have a legitimate interest in imposing reasonable, non-
discriminatory, narrowly-tailored restrictions on the
access of contractors’ off-duty employees, greater than
those lawfully imposed on its own employees. We
express no view today, however, on precisely which
unique restrictions on contractor employees’ access
might be lawful, although they will be evaluated
consistent with the accommodation of interests we have
engaged in here. Such determinations are best made on a
case-by-case basis.50
49 In that case, as here, we accommodated the property rights of the
owner and the Sec. 7 rights of employees whose activities arguably
caused the owner heightened concern (though the bases for the claimed
concerns differ). In Hillhaven, we recognized that “an employer may
well have heightened private property-right concerns when offsite (as
opposed to onsite) employees seek access to its property,” and thus we
held that offsite employees have a right of “access to the outside,
nonworking areas of the employer’s property” as do off-duty, onsite
employees, “except where justified by business reasons, which may
involve considerations not applicable to access by off-duty, onsite
employees.” 336 NLRB at 648.
50 Our dissenting colleague mistakenly asserts that today’s decision
extends greater rights to the Ark employees than would be enjoyed by
off-duty NYNY employees under Tri-County Medical Center, 222
NLRB 1089 (1976). Pursuant to that precedent, an employer/owner
could lawfully adopt a rule barring off-duty employees from returning
to interior areas of its premises. Here, there is no evidence in the record
that NYNY maintained a rule barring its own employees from returning
to interior areas of the hotel. Similarly, there is no evidence in the
record that NYNY maintained a rule barring off-duty Ark employees
from returning to interior areas of the hotel (other than to the bars). In
fact, the record clearly demonstrates the contrary.
Unlike our colleague, NYNY did not argue that the off-duty Ark
employees had no right to return to interior areas of the hotel to engage
in otherwise protected activity. Rather, NYNY argued that Ark
employees had no rights anywhere on the property outside Ark’s
leasehold without distinguishing interior from exterior areas. Thus,
unlike our colleague, NYNY never offered the porte-cochere as an
alternative location to the restaurant entrances. Indeed, the Union’s
counsel stated at argument that the Union resorted to handbilling at the
entrances to the restaurants only because NYNY argued, in response to
the charge filed after handbillers at the porte-cochere were ticketed and
escorted off the property, that the handbilling at the porte-cochere was
not protected because it was too far from the Ark employees’
worksites. When the Ark employees were then barred from handbilling
In adopting this test, we decline to condition access to
the property on a showing by the off-duty employees (or
by the General Counsel on their behalf) that they lack a
reasonable alternative means, however defined, of
communicating with their intended audience.51 In this
situation, where the employees are seeking to exercise
their own statutory rights in and around their own
workplace, imposing such a prerequisite burdens
employees’ Section 7 rights more than is necessary to
adequately protect the property owner’s rights and
interests. As the Supreme Court confirmed in Eastex,
supra at 574, the workplace “is a particularly appropriate
place for the distribution of § 7 material.” Neither the
Board nor any court has ever required employees to
prove that they lacked alternative means of
communicating with their intended audience as a
precondition for recognition of their right, subject to
reasonable restrictions, to communicate concerning their
own terms and conditions of employment in and around
their own workplace. By permitting the property owner
to impose reasonable, narrowly tailored restrictions on
access when demonstrably necessary, in contrast, we
ensure a more refined and a more easily administered
accommodation of rights and interests. With respect to
the issue of alternative means of communication, then,
we view employees like the Ark handbillers as
substantially different from the access seekers involved
in cases applying some type of a reasonable-alternative-
means standard—the union organizers in Lechmere and
the offsite employees of a shopping center tenant in
Hudgens—who had no connection to the property. In
this regard, the Ark employees share more in common
with the property owner’s own employees, to whom no
alternative-means standard applies. See Eastex, 437 U.S.
at 572–573.
As a general matter, the test we adopt today seeks to
place the Ark employees and similarly situated, protected
employees at a point on the spectrum of accommodation
between Section 7 rights and property rights that reflects
the similarities and differences between them and other
access seekers considered in the Supreme Court’s and
our prior jurisprudence, as well as the similarities and
differences between NYNY and other property owners
who wish to exclude the protected employees from their
at the restaurant entrances, they went back to the porte-cochere and
again were ejected. If an owner/employer imposes a reasonable, non-
discriminatory, narrowly-tailored restriction on the access of its
contractors’ employees to interior areas of its property and that
restriction is challenged under the Act and defended under Tri-County,
we will consider the matter. But no such facts or arguments are at issue
in this case.
51 Or to permit the Respondent to prove the converse as suggested in
the dissent.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 920
property. As in Hillhaven Highland House, we have
sought a nuanced resolution of the legal issue presented
to us, rather than simply fitting the Ark employees into
some preexisting category.
D.
As we do, our dissenting colleague concludes that this
case cannot properly be resolved by making a categorical
distinction between employees of the property owner and
nonemployees. He correctly observes that “Ark’s
employees, who regularly and exclusively work on
NYNY’s property, are neither ‘stranger’ fish nor
‘employee’ fowl.” As a result, the Board must, in his
view, apply an

accommodation-of-interests test that would sometimes
result in requiring the property owner’s interests to
yield to a greater extent than for strangers who have no
employment connection with the property or the
property owner.

But our colleague would place the “locus of
accommodation” at a different point on the spectrum,
assigning less weight to the Section 7 interests of statutory
employees and assigning even greater weight than we do to
the interests of the property owner, while dismissing our
finding that here the property owner was fully able to
protect its interests in relation to Ark’s employees while
they were on its premises. That is a policy choice—
defensible, perhaps, but certainly not compelled by the Act,
by the Supreme Court’s decisions, or by the Board’s own
precedent.
The dissent’s central claim is that the “balancing test to
be applied must be a variant of Babcock, as the Board
held upon remand of Hudgens” and that “any test based
on Babcock must consider not only the relative strengths
of competing Section 7 and property interests, but also
what reasonable alternative means exist for
communicating the Section 7 message.” But both the
Board and Court distinguished Babcock in Hudgens on
the ground that it involved nonemployees and nothing in
Hudgens addressed the access rights of statutory
employees employed on the property to which they
sought access.52 Nor, of course, did Babcock. We have
explained why, in the factual context of this case,
permitting the property owner to impose reasonable, non-
discriminatory, and narrowly-tailored restrictions on the
access of contractors’ off-duty employees when
52 Our colleague describes Hudgens as the “case most factually
analogous to the one we consider today.” But the similarity of
Hudgens to this case depends on how much importance is placed on the
fact that the employees in Hudgens were not employed on the property
involved there.
demonstrably necessary is superior to inquiring whether
employees have reasonable alternative means to
communicate their statutorily protected message in and
around their own, regular workplace.
Our colleague insists that our approach “represents no
real accommodation of competing interests” and that
under it, “[t]here will be no case-by-case balancing.”
The claim, at bottom, is that the Board’s decision today
does not do what it plainly does and does not mean what
it plainly says. We can only disagree.
E.
Applying the test adopted here, we conclude that
NYNY violated Section 8(a)(1) by excluding the
handbilling Ark employees from its property.53 NYNY
has not demonstrated that the handbilling significantly
interfered with its use of the property or that exclusion
was justified by some other legitimate business reason,
such as the need to maintain operations or discipline.
Because NYNY had no preexisting restrictions on access
applicable to the Ark employees, we need not consider
what, if any, restrictions short of a blanket prohibition on
distribution NYNY lawfully might have imposed.
ORDER
The National Labor Relations Board orders that the
Respondent, New York New York, LLC d/b/a New York
New York Hotel & Casino, operating in Las Vegas,
Nevada, its officers, agents, successors, and assigns, shall
take the actions set forth in the underlying National
Labor Relations Board decisions issued in Cases 28–
CA–14519 and 28–CA–15148 on July 25, 2001.

MEMBER HAYES, dissenting in part.
In cases where the Board weighs nonemployees’
Section 7 rights against a property owner’s right to limit
access to its property, the Board must adhere to the
Supreme Court’s mandate that “[a]ccommodation
between the two must be obtained with as little
destruction of one as is consistent with the maintenance
of the other.”1 My colleagues have failed to do so here.
In determining that the Respondent violated the Act by
excluding employees of food concessionaire Ark Las
Vegas Restaurants from soliciting customer support for
their organizational campaign in the interior of
Respondent’s hotel and casino complex, they apply a test
53 The standard we adopt today is more lenient to NYNY than the
Board’s prior standard, in effect at the time NYNY excluded the Ark
employee handbillers. This case, then, implicates no concern about the
retroactive application of a new legal rule to find previously
permissible conduct unlawful. See generally SNE Enterprises, 344
NLRB 673 (2005) (discussing Board’s traditional practice of applying
new rule retroactively, absent “manifest injustice”).
1 NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956).

NEW YORK NEW YORK HOTEL & CASINO 921
that artificially equates the Section 7 rights of a
contractor’s employees with those of the property
owner’s employees, pays only lip service to the owner’s
property interests, and gives no consideration to the
critical factor of alternative means of communication.
In sum, the majority’s purported balancing test affords
as much, if not more, protection to the efforts of Ark
employees to engage in union organizational activity on
the Respondent’s premises as the Respondent’s own
employees would have. Applying what I believe to be
the correct test, and in the absence of a sufficient record
regarding the existence of less intrusive reasonable
alternative means of communication, I would find that
the Respondent acted unlawfully only when it excluded
Ark handbillers from the nonwork porte-cochere area
outside the main entrance to the hotel and casino
complex.
I.
In July 1997, off-duty Ark employees stood in the
porte-cochere area and distributed their handbills to
customers of the hotel, the casino, and the restaurants as
they entered the facility. Sometime later, in April 1998,
off-duty Ark employees handbilled again in the porte-
cochere area as well as at the entrances to two restaurants
operated by Ark inside the Respondent’s hotel and casino
complex. In each instance, the Respondent summoned
police, who issued trespass citations to the Ark
handbillers and escorted them off the Respondent’s
property.
The Board addressed the Respondent’s exclusionary
actions in separate decisions. In one decision, it found
that the porte-cochere was not a work area and that the
handbillers’ activity did not adversely affect either the
customers’ ability to enter or leave the hotel or the hotel
employees’ ability to perform their jobs.2 Thus, the
Board found that Ark employees should be granted
access to this area of the owner’s property outside the
hotel to engage in Section 7 activities. In another
decision, the Board found that the areas in front of the
restaurants—inside the hotel complex—were nonwork
areas and that the handbillers did not interfere with
production or discipline.3 The Board found that Ark
employees should also be allowed access to those areas
in front of Ark’s restaurants to engage in Section 7
activities. In each decision, the Board relied primarily on
Southern Services4 and Gayfers Department Store.5
2 New York New York Hotel & Casino, 334 NLRB 762 (2001).
3 New York New York Hotel & Casino, 334 NLRB 772 (2001).
4 300 NLRB 1154 (1990) (subcontractor’s employees who work
regularly and exclusively at owner’s facility were “invitees,” not
“trespassers,” and because they were rightfully on the property, they
The cases involving Ark employees’ handbilling
activities at NYNY were consolidated for review by the
United States Court of Appeals for the D.C. Circuit.6
The court found that the rationale of Southern Services
and Gayfers, and therefore the rationale of the
consolidated cases relying on them, lacked sufficient
explanation on “the critical question in a case of this sort
whether individuals working for a contractor on
another’s premises should be considered employees or
nonemployees of the property owner.”7 Further, the
court perceived no definitive answer to this question in
Supreme Court precedent. It therefore remanded the
consolidated cases with instructions to consider the
distinction between rules of law applicable to employees
and those applicable to nonemployees, and to answer
certain specific questions relevant to application of those
distinctions to the facts presented here.
II.
On remand, the majority has reaffirmed the Board’s
prior findings that the Respondent unlawfully denied Ark
employee access to the porte-cochere area and to the two
interior restaurant entrances. The majority reasons that
(1) the Ark employees are “employees” within the
meaning of the Act, albeit not employees of the
Respondent; (2) as such, they have Section 7 rights,
which they sought directly to exercise when handbilling
on the Respondent’s property, where they regularly
work; (3) the particular right they sought to exercise, i.e.,
the right to organize, is a core Section 7 right; (4) the
intended audience of their handbilling, i.e., potential
customers of Ark’s restaurants, strengthens their right to
engage in activity on the Respondent’s premises at the
Ark restaurant entrances; (5) although the Ark employees
were trespassing under state law, Federal labor law
policy predominates in determining their rights of access;
(6) as a general matter, the Respondent can limit Ark
employees’ access to the same degree as for its own
employees by imposing those limits in its contract with
Ark; and (7) absent more specific evidence of
interference with the Respondent’s operations, it can
impose no greater limits than for its own employees.
III.
For purposes of determining rights of access to private
property under the Act, there are arguably only two
categories of individuals: (1) “strangers” who are not
employees of the private property owner, and who may,
had the same access rights as owner’s employees), enfd. 954 F.2d 700
(11th Cir. 1992).
5 324 NLRB 1246 (1997) (same).
6 New York New York, LLC v. NLRB, 313 F.3d 585 (D.C. Cir. 2002).
7 Id. at 590.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 922
barring exceptional circumstances, be denied access to
any location on the property;8 and (2) employees of the
private property owner, whose rights of access to that
property are far more extensive.9 Under this two-
category definition, because Ark’s employees are not
employees of the specific owner whose property they
seek to access, the legal balance of interests involved has
been struck by the Supreme Court in Babcock, and they
can be entirely excluded from that property. However,
Ark’s employees, who regularly and exclusively work on
NYNY’s property, are neither “stranger” fish nor
“employee” fowl, and the Supreme Court’s opinions in
Hudgens10 and Sears11 support an accommodation-of-
interests test that would sometimes result in requiring the
property owner’s interests to yield to a greater extent
than for strangers who have no employment connection
with the property or the property owner.
Still, the balancing test to be applied must be a variant
of Babcock, as the Board held upon remand of
Hudgens,12 and the balance struck must involve as little
destruction of one right as is necessary for maintenance
of the other. To reach that end, any test based on
Babcock must consider not only the relative strengths of
competing Section 7 and property interests, but also what
reasonable alternative means exist for communicating the
Section 7 message.
Addressing first the Section 7 interests of the Ark
handbillers, I agree with my colleagues that those
interests are stronger than those of nonemployee union
organizers because Ark employees are directly asserting
their core organizational rights. However, my agreement
with the majority goes only this far.
First, I cannot subscribe to a holistic definition of
statutory employee status which reduces to legal
insignificance the critical distinction between employees
and nonemployees of a particular employer. This, the
Supreme Court has repeatedly stated, is a distinction “of
substance.”13 Employment and employee status are
creatures of contractual relation, not of the physical
8 See Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992); NLRB v.
Babcock & Wilcox Co., 351 U.S. 105 (1956).
9 See generally Republic Aviation Corp. v. NLRB, 324 U.S. 793
(1945).
10 Hudgens v. NLRB, 424 U.S. 507 (1976).
11 Sears, Roebuck & Co. v. San Diego County District Council of
Carpenters, 436 U.S. 180 (1978).
12 See Sears, supra at 211 (Blackman, J., concurring, describing the
Board’s test in Scott Hudgens, 230 NLRB 414 (1977)).
13 Babcock & Wilcox, 351 U.S. at 113; Lechmere, 502 U.S. at 537.
In this respect, I do not join my colleagues in questioning the Lechmere
Court’s reference to union organizers as nonemployees. The Court
clearly did not regard the organizers’ Sec. 7 rights vis-à-vis their own
employer as relevant to the analysis of whether they should have access
as employees to the property of another employer.
location of work activity. Accordingly, as they are not
employees of the property owner, the Section 7 rights of
a contractor’s employees who regularly and exclusively
work on that owner’s property are entitled to less weight
than the rights of the property owner’s own onsite and
offsite employees. I therefore find that precedent
involving the organizational rights of a property owner’s
employees cannot control here. In particular, I reject the
majority’s heavy reliance on Hillhaven Highland House,
336 NLRB 646 (2001), enfd. First Healthcare Corp. v.
NLRB, 344 F.3d 523 (6th Cir. 2003), which involves the
access rights of offsite employees to another of their
employer’s properties to organize employees working
there.
Further, I do not agree with the proposition that the
organizational rights of the lessor’s employees are
stronger if their primary audience consists of members of
the public patronizing the property owner’s
establishment.14 The Ark employees’ appeal to the
public is ancillary to the primary object of their
organizational campaign, which is to persuade their co-
workers to support collective-bargaining representation
by the Union. In my view, the right to engage in appeals
to the public, which can only indirectly effect
employees’ organizational goals, is weaker than the right
to engage in appeals to fellow employees, which goes
directly to organization.
Turning next to the Respondent’s property interests, I
note initially that there is no dispute about the
Respondent’s right under state law to exclude the Ark
handbillers from its property. My colleagues
acknowledge that, as a matter of state law, those
employees were trespassers at the moment they began to
distribute handbills on the Respondent’s property. They
nevertheless posit that Federal statutory labor law is the
ultimate determinant of whether that state-assured
exclusionary right, “one of the essential sticks in the
bundle of property rights,”15 must nevertheless yield to
nonemployees seeking access to the property of another
employer where they regularly work.16 That reasoning is
correct, as far as it goes, but where it should then go is
right back to the Supreme Court’s interpretation of labor
law. Time and again, from Babcock, to Central
14 I need not decide in this case whether the majority’s proposition
would be valid in cases where, as in Hudgens, a lessee’s offsite
employees seek access to the lessor’s property to engage in Sec. 7
activity aimed at publicizing a primary economic dispute with their
employer.
15 PruneYard Shopping Center v. Robins, 447 U.S. 74, 82 (1980).
16 As discussed below, the majority does not require that such
employees work “exclusively,” as opposed to just regularly, on the
owner’s property to warrant access rights greater than other
nonemployees.

NEW YORK NEW YORK HOTEL & CASINO 923
Hardware,17 to Lechmere, the Court has repudiated the
Board’s attempts to broaden nonemployee access to
private property in furtherance of Section 7 rights.
Reading through the Court’s decisions, one is struck by
the brevity of discussion with respect to the property
rights involved. It is apparent that the Court is
reflexively willing to give far greater weight than either
the Board or my colleagues to an employer’s private
property rights, which are, after all, protected to a degree
by the Fifth and Fourteenth Amendments and are derived
from a common law long predating the Act.
The majority acknowledges that Ark employees have
no employment relationship with NYNY, and they
recognize that a direct employment relationship is
significant because it gives the property owner some
means for protecting its property interest by exercising
control over its employees in the event of misconduct.
But the majority finds that the absence of an employer-
employee relationship is mitigated by the control that
NYNY can exercise over Ark employees through its
relationship with Ark, and because of provisions in the
Ark employees’ handbook that require Ark employees to
adhere to certain NYNY rules. I see no reason why the
Respondent must contract expressly for controls over a
contractor employees’ access, or why it is relevant that
Ark’s handbook contains access rules for its employees
parallel to those in effect for the Respondent’s
employees. The salient point is that even with contract
provisions and handbook rules in effect, the Respondent
can do no more to limit the trespassory conduct of Ark
employees under the majority’s test than it can to limit
the access of its own employees who seek to engage in
organizational activity.
The majority finds that the most significant factor in
assessing the strength of the Respondent’s property
interest is that Ark employees regularly work on that
property. In fact, the Ark employees work regularly and
exclusively on the Respondent’s premises. In past Board
iterations of an access standard for contract employees,
the exclusivity factor has been significant in determining
whether the contract employees should have access. See
Postal Service, 339 NLRB 1175, 1177–1178 (2003)
(finding that a contract employee who worked
regularly—but not exclusively—at the owner’s facility
did not have the same access rights as the owner’s
employees.) The majority’s omission of “exclusively”
from its test is therefore contrary to the emphasis
previously given this factor. More importantly, its
omission has the potential to dramatically expand the
class of contractor employees entitled to access an
17 Central Hardware Co. v. NLRB, 407 U.S. 539 (1972).
owner’s property to engage in Section 7 activity. I
would continue consideration of the exclusivity factor as
somewhat lessening the weight to be assigned to a
property owner’s security interests. However, I cannot
agree with my colleagues’ assignment of determinative
weight to the mere fact that a contractor’s employees
regularly visit the owner’s property. In effect, the
majority’s emphasis on the Ark employees’ relationship
to the jobsite, instead of the absence of an employment
relationship with the Respondent, reverts their analysis to
the locus-based rationale of Southern Services and
Gayfers, which the D.C. Circuit questioned in light of
Lechmere.18
In short, despite my colleagues’ elaborate analysis,
they end up in the same place and for the same reasons as
the Board’s preremand decisions—granting Ark
employees full Republic Aviation19 rights of access to
nonwork areas during nonwork time because they work
regularly (and exclusively) on the owner’s property.
Indeed, by allowing Ark employees access to handbill
customers inside the hotel, the majority has arguably
granted these nonemployees greater access to the
property than would be allowed to the Respondent’s own
employees.20 This result does not give sufficient
substance to the employee/nonemployee distinction and
greatly understates the strength of the Respondent’s
property rights.
IV.
Although I find fault with the relative weight assigned
by my colleagues to the Ark employees’ Section 7 rights
and the Respondent’s property rights, they at least
nominally apply the Babcock framework to that extent in
deciding where to strike the proper accommodation.
However, the greater fault of the majority’s test stems
from their refusal to consider reasonable alternative
means of communication. The majority thereby omits an
essential element of the Babcock balancing test, a marked
departure from the test applied by the Board on remand
in Hudgens, the case most factually analogous to the one
we consider today. Although the majority claims that
their refusal “ensure[s] a more refined . . .
accommodation of rights and interests,” I believe they
achieve just the opposite, assuring that the balance will
18 New York New York, 313 F.3d at 588 (“Neither Board decision
takes account of the principle reaffirmed in Lechmere that the scope of
Section 7 depends on one’s status as an employee or nonemployee.”).
19 Republic Aviation v. NLRB, 324 U.S. 793 (1945).
20 It is not clear to me that, if the Respondent maintained a valid
work rule restricting its employees’ off-duty access to its property,
Respondent’s off-duty employees would be allowed, under current
Board law, to solicit customers in areas inside the hotel and casino, but
the majority grants that right to off-duty Ark employees.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 924
always be struck in favor of requiring a property owner
to permit organizing activity on its property by a
contractor’s employees to the same extent that it must
permit such activity by its own employees.21 A case-by-
case consideration of communication alternatives is a
necessary predicate to deciding what degree of access to
private property must be permitted to assure maintenance
of Section 7 rights with as little destruction of property
rights as possible.
If this case involved complete strangers to the
Respondent’s property, as in Babcock and Lechmere, the
General Counsel would bear the heavy burden of proving
that reasonable nontrespassory alternatives for
communicating the nonemployees’ organizational
message to the public did not exist. However, as I have
previously indicated, while Ark employees are
nonemployees vis-à-vis the Respondent, the fact that
they regularly and exclusively work on the Respondent’s
premises slightly lessens the Respondent’s property
interest in the balance against Ark employees’ interests
in exercising their organizational rights. In my view, a
proper accommodation of competing interests in this
situation can be accomplished by imposing the burden on
the property owner to prove that there are reasonable
alternative means for the contractor’s employees to
communicate their organizational message. In a
particular case, the reasonable alternative may be
nontrespassory, or, as in the present case, it may involve
access to a less intrusive location on the owner’s
property. The resulting legal balancing test gives greater
weight to the asserted statutory rights of a contractor’s
employees working on the property of another than in a
“stranger” nonemployee access case, but does not give
the rights as much weight as in the situation of off-duty
employees of the property owner, where alternative
means of communication is not a factor.22
In this case, the Respondent contends that the Ark
employees did have reasonable nontrespassory
alternative means of communicating their organizational
message to the public, either through the use of mass
media or by handbilling at locations outside the
Respondent’s property. As a general matter, I would
find that requiring employees to resort to mass media
communications is not a reasonable alternative. On the
21 It remains to be seen in future cases whether the assertion by
contractor employees of a different Sec. 7 right will make any
difference in the majority’s test.
22 In other factual situations where the Sec. 7 right asserted by a
contractor’s employees is weaker, or the property owner’s interests are
stronger, the failure of the property owner to prove the availability of
reasonable alternative means of communication might not be
determinative of whether it was unlawful to exclude those employees
from the property.
other hand, requiring that the handbilling take place off
premises could often be a reasonable alternative.
However, the record is limited with respect to the
locations cited by the Respondent in this case. Were my
position to be the Board’s test, due process
considerations could dictate remanding for a hearing in
which the Respondent could present evidence to meet a
newly-imposed burden. However, as I am dissenting, I
will proceed to determine whether the Respondent has
met its burden on the record as it stands.
On that record, I find that the Respondent has failed to
prove the availability of reasonable nontrespassory
means of communication. As to handbilling on the
Respondent’s property, the record clearly shows that
permitting this activity in the porte-cochere nonwork
area outside the hotel and casino would be less intrusive
of the Respondent’s property rights than if permitted at
the restaurant entrances in the interior of the hotel/casino
complex. In this area, the handbillers could reach their
target audiences—customers of the hotel, casino, and
restaurants—while infringing to a fairly small degree on
the Respondent’s property.
On the other hand, requiring the Respondent to permit
organizational handbilling inside its establishment at the
entrance to the Ark restaurants obviously represents a far
greater intrusion on the Respondent’s property rights.
The Board has only allowed such destruction of the
owner’s rights in extreme circumstances where, even
after considering alternative means of access, the
employees were left with no reasonable means of
reaching their target audiences except in areas inside the
owner’s property. For example, in Scott Hudgens, 230
NLRB 414 (1977), the Board found that off-duty
employees of Butler Shoes, one of over 60 stores with
retail space inside the owner’s shopping mall, could
picket and handbill inside the mall in front of their
employer’s shoe store in order to reach their intended
audience, Butler’s customers. The only alternative areas,
on the sidewalks, parking lots, and public areas outside
the mall, were not reasonable solutions because activities
there would significantly dilute the employees’ message,
enmesh the customers of the many other neutral
employers within the mall, and cause safety concerns.23
No such concerns exist here. Although the majority
claims that “excluding the Ark handbillers from these
uniquely effective locations [in front of their restaurants]
would place a serious burden on the exercise of their
Section 7 rights to communicate with the relevant
members of the public,” the facts flatly contradict this
23 As previously stated, Hudgens is also distinguished from the
present case with respect to the Sec. 7 activity involved, i.e., economic
strike activity as opposed to organizational activity.

NEW YORK NEW YORK HOTEL & CASINO 925
claim. As discussed above, the handbillers’ audience is
customers of the hotel, the casino, and the restaurants.
Everyone who entered through the porte-cochere is a
member of this audience. Limiting Ark employees’
access to the porte-cochere places little or no burden on
their ability to reach their intended audience. Even
assuming that the restaurant entrances may have been the
point of optimal effect for their handbilling activity, the
Act does not require assuring access to those sites if the
burden on the Respondent’s property interest would be
required to yield to a much greater extent than at the
porte-cochere.
Thus, not only do I believe that a consideration of
alternative means of access is a required element of any
variant of the Babcock test, but, contrary to the majority,
I find that it is the consideration of this very factor that
ensures a more refined accommodation of competing
Section 7 and property interests.
Conclusion
We consider in this case a factual scenario that none of
the Supreme Court cases expressly addresses. On this
much, the court of appeals, my colleagues, and I agree.
From that point, however, I part company with the
majority. Their analysis of the factors relevant to
whether the employees of a contractor should have
access to the property of another employer where they
work gives far too much weight to the locus of their
work, far too little weight both to their lack of an
employment relationship with the property owner and to
the property interests of that owner, and no weight at all
to whether reasonable alternative means exist for
communicating the organizational message to the
employees’ intended audience.
The inevitable result of the majority’s analysis
represents no real accommodation of competing
interests. There will be no case-by-case balancing. The
contractor employees’ rights to engage in organizational
activity will trump the property owner’s rights every
time, subject only to the suggested possibility that in
some future case a property owner may be able to justify
the imposition of “reasonable, non-discriminatory,
narrowly-tailored restrictions on the access of
contractors’ employees, greater than those lawfully
imposed on its own employees.”
In my view, the appropriate balancing test must be
drawn from the Babcock framework, inasmuch as it
involves nonemployees of the property owner. The fact
that they work regularly and exclusively for their
employer on the property of another should be
considered in that test, but it cannot elevate those
nonemployees to equal standing with the property
owner’s own employees vis-à-vis the assertion of Section
7 rights, nor can it abnegate the owner’s exclusionary
property rights. In this particular case, I would find
based on the existing record that the Respondent has
failed to prove the availability of reasonable
nontrespassory means for Ark handbillers to
communicate their message. I therefore conclude that
the Respondent unlawfully excluded Ark employees
from engaging in minimally intrusive handbilling activity
on the Respondent’s property in the porte-cochere area.
In a future case with different facts, particularly as to
reasonable nontrespassory alternative means of
communication, I would not require that a property
owner’s rights should yield at all.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your
benefit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT prohibit employees who work within our
hotel/casino complex, including those employed by Ark
Las Vegas Restaurants, Inc., from distributing union
handbills to customers on the sidewalk in front of the
porte-cochere entry doors or in front of the entrances to
Ark-managed restaurants within the hotel/casino
complex.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL remove from our files and records, including
security incident reports, any reference to the fact that
employees of Ark Las Vegas Restaurants, Inc.,
conducted handbilling on July 9, 1997, or on April 7 or
9, 1998, at the porte-cochere entrance or at the entrances
to Ark-managed restaurants within the hotel/casino
complex, and/or that we invoked Nevada trespass law
against these employees, and WE WILL notify each
employee, in writing, that this has been done and that we
will not use these facts against them in the future.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 926
WE WILL inform the Las Vegas city attorney in writing
that we want to withdraw the trespass citations we
caused to be issued against these employees for their
conduct on July 9, 1997, or April 7 or 9, 1998.
WE WILL reimburse these employees, with interest, for
any legal or other expenses which any of them may have
incurred while defending themselves against the trespass
citations prior to the point when we notify the Las Vegas
city attorney that we want to withdraw the citations.

NEW YORK NEW YORK HOTEL, LLC D/B/A NEW
YORK NEW YORK HOTEL & CASINO