On December 13, 2012, on behalf of the National Retail Federation, Morgan Brown & Joy, LLP submitted a brief amicus curiae (“friend of the court”) to the Supreme Court of the United States in a case concerning the access rights of contractor employees for handbilling purposes. The case, New York, New York, LLC dba New York New York Hotel & Casino v. National Labor Relations Board, Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 225, and Bartenders Union, Local 165, is currently awaiting a decision from the Supreme Court on the petition for a writ of certiorari filed by Petitioner New York, New York, LLC. MBJ submitted its brief amicus curiae in support of the Petitioner.
The central question in the case is whether a contractor’s employees, who have no direct employment relationship with a property owner, have the same access rights for organizational handbilling purposes as the employees of the property owner. For decades, the Supreme Court and the National Labor Relations Board (the “Board”) have attempted to accommodate owners’ property rights and employees rights pursuant to § 7 of the National Labor Relations Act by distinguishing the broad access rights afforded to a property owner’s “employees” from the narrower access rights granted to all other “nonemployee” organizers. In Lechmere, Inc. v. NLRB, 502 U.S. 527, 533 (1992), this Court held that the “critical distinction” between employees and nonemployees provides the analytical framework for determining the scope of a property owner’s right of exclusion. The Lechmere decision affirmed the holding in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), that property owners may restrict nonemployees from engaging in organizing activity on their property with the rare exception that occurs when the owner’s employees are beyond the reach of ordinary means of communication.
MBJ argues that the Board recently imposed an impermissible burden on property owners’ rights by adopting a new access rule permitting contractor employees – who have no employment relationship with the property owner – to distribute union handbills on the owner’s property by the same access standard as if they were the property owner’s own employees. New York, New York, LLC dba New York New York Hotel & Casino, Case Nos. 28-CA-14519 and 28-CA-15148, 356 NLRB No. 119 (March 25, 2011). This new access rule completely contravenes the Babcock and Lechmere decisions and casts a shadow of uncertainty on the exclusionary rights of property owners. The Board relied on its own precedent to determine that although the handbillers were not employed by the property owner, they were nonetheless entitled to full access to the property because they worked “regularly” and “exclusively” on the property and were employed by one of the property owner’s contractors. The D.C. Circuit Court of Appeals declined to overturn the Board’s imposition of the new access standard.
The National Retail Federation is the world’s largest retail trade association and the voice of retail worldwide. On behalf of the Federation, MBJ argued in its brief that the Court should uphold the standard set forth in Babcock and Lechmere affirming the property owner’s rights to exclude non-employees, regardless of whether the individual happens to work for a contractor on the premises. The Supreme Court will decide sometime early this year whether it will grant the Petition and hear the case.