Off-Duty Employees Given Expanded Rights for Union Organizing on Employer's Property

On March 25, 2011 the National Labor Relations Board ruled in the New York New York ruling that off-duty employees of a restaurant, a contractor doing business on hotel property, can distribute flyers on hotel property regarding their union organizing campaign. The hotel sought to exclude the off-duty employees and their distribution of flyers from hotel premises.  

The five members of the NLRB, appointed by President Obama, ruled on the case. The majority wrote in favor of changing the rules for workplace access by off-duty employees. Rather than looking to whether the off-duty employees had a reasonable means other than direct property access to disseminate their message about organizing to the on-site employees, the NLRB essentially cut away at employer property rights..The NLRB's new standard looks to whether the off-duty employees interfered with or disrupted the property owner's business. Finding no such disruption, the NLRB ruled that the New York New York hotel violated the National Labor Relations Act by removing the off-duty employees from inside the hotel and the sidewalk just outside the hotel. 

A dissenting opinion, by Republican Board Member Brian Hayes, would have found removal from the private property at the interior of the hotel to be lawful but from the public sidewalk, due to its public use, unlawful.

Union organizing activity should be expected to increase in an improving economy, particularly as the political campaign season approaches. Employers working in a contractor capacity on multi-employer work sites, including a hotel or resort like the New York New York case, the multi-crafted multi-employer construction environment, or elsewhere, should take time to review policy and practice for workplace access by employees and non-employees to ensure compliance with the new legal standard.

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