The United States Supreme Court recently denied a Las Vegas casino’s petition to review the decision of the U.S. Court of Appeals for the District of Columbia Circuit. As a result, the D.C. Circuit’s decision expanding the rights of non-employees to handbill remains in place. The primary issue in the case was whether a contractor’s employees have the same access rights to engage in organizational handbilling as the employees of the property owner. The D.C. Circuit held that the casino violated the National Labor Relations Act (“NLRA”) by prohibiting its food service’s contractor’s off-duty employees from handing out union handbills in a covered sidewalk of the casino’s main entrance and other areas of the casino open to the public. This decision runs contrary to existing case precedent that distinguished the broad access rights provided to a property owner’s own employees under § 7 of the NLRA from those rights granted to all other “nonemployee” organizers. Employers facing handbilling campaigns should anticipate that the National Labor Relations Board will be emboldened in advancing its position that a property owner can only prohibit handbilling by a contractor’s employees in areas available to the public when “the owner is able to demonstrate the activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason.”
We encourage employers to evaluate their existing policies regarding off-duty employee and contractor access to their premises and any policies they may have in place regarding the distribution of materials on their property. Restrictive policies put in place prior to union organizing activity can help support an employer’s contention that “non-employee” organizers’ access to public areas would interfere with the use of the property or make it impossible for the employer to maintain production and discipline necessary to operate the business.