Tail Wags Dog: Union-Controlled NLRB Throws Union Bosses Another Bone
March 28, 2011
Given the many of the asinine rulings coming from the union-controlled National Labor Relations Board, it is becoming impossible to be shocked at the kowtowing to union bosses’ these days. Nevertheless, there is a sense of duty to bring you the latest example of the tail wagging the dog.
Here’s the bottom line:
Companies that have third-party contractors can now be found guilty of committing unfair labor practices for not allowing the contractors’ off-duty employees onto company property to handbill their co-workers and the public (which includes the company’s customers) in an effort to unionize the contractor.
Here’s the summary of the case that spans nearly 15 years:
A Las Vegas casino contracted with a non-union, third-party contractor to provide food services to the casino’s guests in three restaurants and a food court. The third-party contractor’s approximately 900 employees were not unionized. However, the culinary union took an interest in these employees and launched a campaign to unionize them.
On three occasions in 1997 and 1998, off-duty employees of the contractor came onto casino property to distribute fliers to their on-duty co-workers, as well as the casino’s customers. On all three occasions, the property owner asked the off-duty employees to leave the property. They refused.
After the Las Vegas police were called and issued the trespassers citations and escorted them off the employer’s property, the union filed unfair labor practice charges with the NLRB claiming the off-duty contractor’s employees had a right to be on the company’s premises. The Clinton-NLRB agreed.
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 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.
The property owner, however, appealed to the Court of Appeals for the District of Columbia Circuit, which remanded the case back to the NLRB concluding:
…the Board had failed to consider the implications of the Supreme Court’s opinion in 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). [Emphasis added.]
Upon remand, as stated in its press release, the NLRB decided against the property owner:
In their decision, Chairman Liebman and Members Becker and Pearce stated, “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.” They concluded that:
“[T]he property owner may lawfully exclude such employees only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline…”. [Emphasis added.]
However, in his dissent, NLRB member Brian Hayes wrote:
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 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. [Emphasis added.]
You can read the NLRB’s full decision here.