## Facts

- New York New York Hotel & Casino operated a hotel-casino complex; Ark Las Vegas Restaurant Corporation operated restaurants and food outlets inside the facility under contract.
- A union sought to organize Ark’s employees; three off-duty Ark employees handbilled near the hotel’s main entrance to encourage customers to support improved wages and working conditions for Ark employees.
- New York New York management told the handbillers they were trespassing; when they refused to leave, management called police, who cited them for trespass and removed them.
- The handbilling occurred in an entrance area found to be a nonwork area for purposes of Section 7 access analysis, even though some property-owner employees performed incidental duties there (e.g., valet, bell, and security work).
- An ALJ found New York New York’s exclusion of the handbillers violated the NLRA; New York New York filed exceptions for Board review.

## Issues

1. Whether off-duty employees of an onsite contractor who regularly work on the property have Section 7 rights to engage in peaceful handbilling aimed at the public on the property where they work.
2. Whether the property owner may lawfully exclude those contractor employees based on private property rights, or whether exclusion constitutes interference in violation of Section 8(a)(1).
3. Whether the handbilling location and manner (nonwork area, nonworking time, peaceful conduct) limited the property owner’s ability to bar access absent special circumstances.

## Decision

- The Board affirmed that Ark’s onsite employees were “employees” for Section 7 access purposes with a sufficient nexus to the property where they regularly worked.
- The Board held New York New York violated Section 8(a)(1) by excluding the off-duty Ark employees from the property while they peacefully handbilled in a nonwork area.
- The Board rejected treating the handbillers as outside, nonemployee organizers; it found the property owner’s generalized property interest did not justify exclusion without a legitimate and substantial business reason.
- The Board found no showing that the handbilling interfered with operations or customer access (e.g., no blocking ingress/egress, no significant disruption).
- The Board ordered standard remedies, including a cease-and-desist order and posting of an appropriate notice.

## Legal Principles

- Employees of an onsite contractor who regularly work on a property may have Section 7 rights to engage in protected activity on that property, and are not treated the same as nonemployee union organizers for access purposes.
- Off-duty employees generally may engage in Section 7 activity on nonworking time in nonworking areas, absent special circumstances.
- A property owner may restrict such activity only upon a showing of legitimate and substantial justification, such as demonstrable interference with operations, safety, or customer access.
- Using trespass enforcement to remove onsite contractor employees engaged in peaceful protected activity, without evidence of disruption, can constitute interference, restraint, or coercion under Section 8(a)(1).

## Conclusion

The NLRB concluded that a property owner violated Section 8(a)(1) by having police remove off-duty onsite contractor employees who peacefully handbilled customers in a nonwork entrance area, where the owner showed no operational disruption or other special circumstances justifying exclusion.


New York N.Y. Hotel & Casino, 334 N.L.R.B. 762 (2001)