“We are of course bound by our prior panel decision[.]”
How later courts described this case
- “We are of course bound by our prior panel decision[.]”
- "[The appellant] may of course seek en banc review to have our precedent overruled[, b]ut as a three-judge panel, we are bound by that prior [panel] decision."
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 8, 2012 Decided April 17, 2012
No. 11-1098
NEW YORK-NEW YORK, LLC, DOING BUSINESS AS
NEW YORK-NEW YORK HOTEL AND CASINO,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS, CULINARY
WORKERS UNION, LOCAL 226, AND BARTENDERS UNION,
LOCAL 165,
INTERVENOR
Consolidated with 11-1138
On Petition for Review
and Cross-Application for Enforcement
of an Order of the National Labor Relations Board
Gary C. Moss argued the cause for petitioner. With him
on the briefs were Paul T. Trimmer and Joel J. Borovsky.
2
Robin S. Conrad, Harold P. Coxson, Jr., and Christopher
C. Murray were on the brief for amicus curiae Chamber of
Commerce of the United States of America in support of
petitioner. Bernard P. Jeweler entered an appearance.
Amy H. Ginn, Attorney, National Labor Relations Board,
argued the cause for respondent. With her on the brief were
John H. Ferguson, Associate General Counsel, Linda
Dreeben, Deputy Associate General Counsel, and Ruth E.
Burdick, Supervisory Attorney. Heather S. Beard, Attorney,
entered an appearance.
Richard G. McCracken argued the cause for intervenor
Local Joint Executive Board of Las Vegas, Culinary Workers
Union, Local 226, and Bartenders Union, Local 165, in
support of respondent. With him on the brief was Kristin L.
Martin. Eric B. Myers entered an appearance.
Before: HENDERSON, ROGERS, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH, with whom Circuit Judges HENDERSON and
ROGERS join.
Concurring opinion filed by Circuit Judge HENDERSON.
KAVANAUGH, Circuit Judge: Under precedents of the
Supreme Court and the National Labor Relations Board, a
property owner generally may not bar its employees from
distributing union-related handbills on the property. But a
property owner generally may bar non-employees from doing
so. In this case, the primary question raised by New
York-New York Hotel and Casino in Las Vegas is whether a
property owner may bar employees of an onsite contractor
3
from distributing union-related handbills on the property.
The problem for New York-New York is that this Court
previously considered that question and held that the Board
has discretion over how to answer it. On remand from this
Court, the Board concluded that a property owner generally
may not bar employees of an onsite contractor from
distributing union-related handbills on the property. New
York-New York asks us to overturn the Board’s ruling. That
would require us to overrule our prior panel decision, which
determined that the Board has discretion on this issue. We
are of course bound by our prior panel decision and must
reject New York-New York’s attempt to have us reopen it.
New York-New York also raises a few separate points based
on the particular facts of this case, but none suffices to
overturn the Board’s ruling. We therefore deny New
York-New York’s petition for review and grant the Board’s
cross-application for enforcement of its order.
I
New York-New York Hotel and Casino in Las Vegas
contracts with Ark Las Vegas Restaurant Corporation, which
operates restaurants in the New York-New York complex.
On a few occasions in 1997 and 1998, off-duty Ark
employees who worked at the Ark restaurants entered New
York-New York’s property and passed out union-related
handbills to Ark and New York-New York customers. The
handbilling took place on the sidewalk outside of the main
entrance to New York-New York and in the hallways outside
two of Ark’s onsite restaurants. The handbills asked
customers to urge Ark management to sign a union contract.
Eventually, New York-New York asked the handbilling
Ark employees to leave its property. When the Ark
4
employees refused, New York-New York called the police,
which cited most of the handbillers for trespassing.
The Union later filed unfair labor practice charges with
the National Labor Relations Board, and the Board’s regional
director issued complaints against New York-New York.
The complaints were premised on Section 7 of the National
Labor Relations Act, which gives employees “the right to
self-organization, to form, join, or assist labor organizations.”
29 U.S.C. § 157. Section 8(a)(1) makes it an unfair labor
practice for an employer “to interfere with, restrain, or coerce
employees in the exercise” of their Section 7 rights. 29
U.S.C. § 158(a)(1). “Employee,” as defined by the Act,
includes “any employee, and shall not be limited to the
employees of a particular employer.” 29 U.S.C. § 152(3)
(emphasis added).
Applying that statute, the Board found that New
York-New York had committed an unfair labor practice by
ejecting the handbillers from the property. The Board ruled
that a property owner generally may not bar employees of an
onsite contractor from distributing union-related handbills on
the property. But this Court concluded that the Board had
not adequately explained its reasoning. See New York New
York, LLC v. NLRB, 313 F.3d 585, 588 (D.C. Cir. 2002).
This Court thus remanded to the Board, emphasizing that the
status of an onsite contractor’s employees for these purposes
was an issue committed primarily to the Board’s discretion
under the Act. See id. at 590. The panel listed a series of
questions to guide the Board’s exercise of its discretion on
remand. See id.
On remand, the Board re-examined the issue and again
concluded that a property owner generally may not bar
employees of an onsite contractor from distributing
5
union-related handbills on the property. See New York New
York, LLC, 356 N.L.R.B. No. 119, slip op. at 5, 12-13 (Mar.
25, 2011). 1 The Board therefore reaffirmed its finding that
New York-New York committed an unfair labor practice.
See id. at 14. New York-New York has again petitioned for
review, and the Board has cross-applied for enforcement of its
order.
II
New York-New York principally contends that an onsite
contractor’s employees must be treated as equivalent to
non-employees rather than employees for purposes of the right
to distribute union-related handbills on the owner’s property.
According to New York-New York, a property owner
therefore generally may bar employees of an onsite contractor
from distributing union-related handbills on the owner’s
property. But New York-New York advanced this same
argument in the prior iteration of its case, and the prior panel
rejected the argument. This Court said:
[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 . . . 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
1
To be clear, in order to be protected by this rule, the
employees of the onsite contractor must be employees who work on
site.
6
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.
This leaves a number of questions in this case
unanswered. . . .
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.
New York New York, LLC v. NLRB, 313 F.3d 585, 590 (D.C.
Cir. 2002).
In short, this Court determined that the governing statute
and Supreme Court precedent grant the Board discretion over
how to treat employees of onsite contractors for these
purposes. On remand, the Board exercised its discretion
within the limits this Court had set forth. 2 New York-New
2
To the extent New York-New York accepts that the Board
had discretion to consider “individuals working for a contractor on
another’s premises” as employees, id. at 590, but argues that the
Board abused its discretion in reaching its decision, we reject that
argument. We conclude that the Board in this case adequately
considered and weighed the respective interests based on the
7
York’s beef is really with this Court’s prior panel decision.
New York-New York may of course seek en banc review to
have our precedent overruled. But as a three-judge panel, we
are bound by that prior decision. We cannot overturn the
Board’s decision here on a ground necessarily rejected by the
prior panel.
III
New York-New York raises a few other arguments based
on the particular facts of this case. None is persuasive.
New York-New York complains that the handbilling
activities at issue here were aimed at customers instead of just
at fellow employees. However, “neither this court nor the
Board has ever drawn a substantive distinction between
solicitation of fellow employees and solicitation of
nonemployees. To the contrary, both we and the Board have
made clear that NLRA sections 7 and 8(a)(1) protect
employee rights to seek support from nonemployees.”
Stanford Hospital & Clinics v. NLRB, 325 F.3d 334, 343
(D.C. Cir. 2003).
New York-New York also asserts that the handbilling
here occurred not in non-working areas but rather in working
areas, where the Board has said that handbilling may be
banned. The Board has special rules to determine what
constitutes a working area for each industry. See Double
Eagle Hotel & Casino, 341 N.L.R.B. 112, 113 (2004),
enforced in relevant part, 414 F.3d 1249, 1254 & n.3 (10th
principles from the Supreme Court’s decisions and “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.” Id.
8
Cir. 2005). In a retail store, for example, the working area is
the selling floor where the employer makes retail sales, but
not the other public spaces. See id. For a hotel-casino such
as New York-New York, the Board has long concluded that
the working areas are the hotel rooms and gaming areas
because a hotel-casino’s main function is to “lodge people and
permit them to gamble.” Santa Fe Hotel, Inc., 331 N.L.R.B.
723, 723, 729-30 (2000); see also Double Eagle Hotel &
Casino, 341 N.L.R.B. at 113; Dunes Hotel & Country Club,
284 N.L.R.B. 871, 876-78 (1987). The Board found that the
handbilling here did not occur in those areas. In light of
Board precedent and the deference we owe to the Board on a
question of this kind, we find no basis to overturn the Board’s
determination on this point.
New York-New York also says it acted lawfully because
it relied on safety concerns to bar handbilling by the Ark
employees. But the sidewalk and hallways in which the
handbilling occurred were at least 18 feet wide. The Board
found that the handbilling did not interfere with passing
pedestrians and did not pose any safety issues. That finding
is reasonable and supported by substantial evidence.
We have considered all of New York-New York’s
arguments and find them without merit.
***
We deny New York-New York’s petition for review and
grant the Board’s cross-application for enforcement.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
Although I readily join the majority opinion, I write
separately to emphasize that, in my view, we are in no way
retreating from the requirement that, in reaching a “proper
accommodation” “between § 7 rights and private property
rights,” Hudgens v. NLRB, 424 U.S. 507, 521 (1976) (internal
quotation marks), the Board is “obliged to engage in
considered analysis and explain its chosen interpretation,”
“tak[ing] . . . account of the [United States Supreme] Court’s
different access decisions.” ITT Indus., Inc. v. NLRB, 251
F.3d 995, 1004 (D.C. Cir. 2001). “When it is unclear under
established law whether a category of workers enjoys . . .
access rights, then a court is obliged to defer to reasonable
judgments of the Board in its resolution of cases that have not
as yet been resolved by the Supreme Court.” Id. at 1003. In
deciding where “[t]he locus of [a proper] accommodation . . .
may fall . . . along the spectrum” of section 7 access rights,
the Board must look to the “nature and strength of the
respective § 7 rights and private property rights asserted in
any given context.” Hudgens, 424 U.S. at 522 (emphasis
added). I agree that the Board adequately considered the
relevant factors and reasonably explained why, under
Supreme Court precedent and in the specific context of this
case, the Ark employees fall nearer along the “spectrum” of
section 7 access rights to New York New York’s own
employees than to the “nonemployee union organizers” in
NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), and
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).
The Supreme Court reaffirmed in Lechmere the well-
established principle “that the scope of § 7 rights depends on
one’s status as an employee or nonemployee.” New York New
York, LLC v. NLRB, 313 F.3d 585, 588 (D.C. Cir. 2002)
(NYNY I). As we observed in NYNY I, however, “[n]o
Supreme Court case decides whether a contractor’s
employees have rights equivalent to the property owner’s
employees . . . because their work site, although on the
2
premises of another employer, is their sole place of
employment.” Id. at 590. Thus, we directed the Board to
explain, inter alia, “whether individuals working for a
contractor on another’s premises should be considered
employees or nonemployees of the property owner” in
determining their section 7 access rights to the owner’s
property. Id.
On remand, the Board concluded that neither NYNY I nor
the Supreme Court’s decisions required “an either/or choice
for the Board, requiring [it] 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 much
more restrictive access test of Lechmere).” New York New
York, LLC, 356 N.L.R.B. No. 119, slip op. at 6 (Mar. 25,
2011) (Slip Op.). Consistent with our remand instructions,
see NYNY I, 313 F.3d at 590, 1 the Board concluded that there
existed “important distinctions, as a matter of both law and
policy, between the Ark employees and the nonemployee
union organizers involved in Lechmere.” Slip Op. at 6.
Accordingly, the Board announced a new access standard
pursuant to which a property owner may “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” “only where the owner
1
We directed the Board to consider specific questions and to
decide the section 7 access rights Ark employees are entitled to “by
applying whatever principles it can derive from the Supreme
Court’s decisions . . . [and] 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.” NYNY I, 313 F.3d at 590.
3
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.” Id. at 13.
The Board explained that the Ark employees should not
“be considered the same as nonemployees when they
distribute literature on NYNY’s premises outside of Ark’s
leasehold,” NYNY I, 313 F.3d at 590, because the Ark
employees “were regularly employed on NYNY’s property”
and “the hotel and casino complex was their workplace.”
Slip. Op. at 8. Accordingly, “the Ark employees were not
‘outsiders’ ” to the property. Id. Furthermore, “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.’ ” Id. at 8-9 (quoting Eastex, Inc. v. NLRB, 437
U.S. 556, 574 (1978)).
Nevertheless, “the fact that the Ark employees work on
NYNY’s premises,” NYNY I, 313 F.3d at 590, is not the only
relevant fact that influenced the Board’s decision. See id.
(“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?”). “In distributing handbills to support their own
organizing efforts, Ark employees . . . were exercising their
own Section 7 rights.” Slip Op. at 8. This fact—that the Ark
employees were exercising nonderivative section 7 rights—
distinguishes the Ark employees from the nonemployee union
organizers in Babcock & Wilcox and Lechmere “whose rights
are derived from the right of employees to learn about the
advantages of self-organization from others.” Id. As the
Board explained, “[t]his case involves the organizing
4
activities of employees whose right to self-organization is
statutorily guaranteed.” Id. (emphasis added). Moreover,
“Ark employees[’] lack [of] an employment relationship with
NYNY does not make their Section 7 rights in any way
‘derivative’ of the rights of other employees.” Id.
With respect to New York New York’s private property
rights, the Board concluded that that the absence of an
employment relationship between the Ark employees and
New York New York did not “justify a prophylactic rule
limiting their access” to the hotel and casino because New
York New York possessed the “ability to protect its
operational and property interests in relation to [Ark’s]
employees” by other means. Slip. Op. at 11. Specifically,
there existed an “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.” Id. In addition, “NYNY and Ark share[d] an
economic interest in ensuring that Ark employees do nothing
that might interfere with the operations of the hotel.” Id.
Recognizing the fact-specific nature of its inquiry, the
Board “le[ft] open the possibility that in some instances
property owners will be able to demonstrate that they have a
legitimate interest in imposing reasonable, nondiscriminatory,
narrowly-tailored restrictions on the access of contractors’
off-duty employees, greater than those lawfully imposed on
its own employees.” Slip Op. at 13. The Board noted, for
example, that under its precedent, “an employer/owner could
lawfully adopt a rule barring off-duty employees from
returning to interior areas of its premises.” Id. at 13 n.50. On
the record before it, however, there was no evidence that New
York New York maintained such a rule with respect either to
5
its own off-duty employees or to off-duty Ark employees.
Id. 2
Determinations regarding the proper accommodation of
section 7 rights and private property interests, as the Board
recognizes, “are best made on a case-by-case basis.” Slip Op.
at 13. Given the Board’s findings—supported by substantial
evidence—that the Ark employees were “communicat[ing]
concerning their own terms and conditions of employment in
and around their own workplace,” Slip Op. at 13 (emphases
added), and that New York New York “could exercise control
over the Ark employees [through] its relationship with the
employees’ employer, Ark,” id. at 11, the Board’s
accommodation in this case is “ ‘rational and consistent’ with
the NLRA” as interpreted by the Supreme Court and is
therefore entitled to be upheld. ITT Indus., Inc. v. NLRB, 413
F.3d 64, 76 (D.C. Cir. 2005) (quoting NLRB v. Curtin
Matheson Scientific, Inc., 494 U.S. 775, 786 (1990)).
2
As the Board noted, New York New York prohibited off-duty
Ark employees from entering its bars. Slip Op. at 13 n.50. The
General Counsel did not challenge that prohibition.