New York New York Hotel & Casino

National Labor Relations Board - Board Decisions

Jul 25, 2001

334 N.L.R.B. 772 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 772
New York New York Hotel, LLC, d/b/a New York
New York Hotel and Casino and Culinary
Workers Union, Local 226, affiliated with Hotel
Employees and Restaurant Employees Interna-
tional Union, AFL–CIO. Case 28–CA–15148
July 25, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On April 9, 1999, Administrative Law Judge Albert A.
Metz issued the attached decision. The Respondent filed
exceptions and a supporting brief. The General Counsel
and the Charging Party Union filed answering briefs, and
the Respondent filed reply briefs to each of the answer-
ing briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,1 findings, and conclusions as
modified and to adopt the recommended Order.
The Respondent owns and operates a hotel and casino
facility in Las Vegas, Nevada. The Union represents a
bargaining unit of certain of the Respondent’s employ-
ees. Ark Las Vegas Restaurant Corporation (Ark) oper-
ates several restaurants and eateries within the casino. At
the time of the events in this case, the Union was at-
tempting to organize Ark’s employees and to obtain rec-
ognition from Ark as their bargaining representative.
On April 7, 1998, two off-duty Ark employees entered
the casino and distributed handbills to customers in front
of America, one of the Ark restaurants on the Respon-
dent’s premises. That same day, two other off-duty Ark
employees entered the casino and distributed handbills to
customers in front of another Ark restaurant, Gonzalez y
Gonzalez. On April 9, two off-duty Ark employees (one
of whom had distributed on April 7 in front of America)
went to the porte-cochere (the area just outside the main
entrance to the casino), where they distributed handbills
to customers as they entered the facility. The handbills
bore an area standards message, stating that Ark paid its
employees less than unionized workers and urging cus-
tomers to tell Ark to sign a union contract. None of the
handbillers physically restricted customers in entering or
leaving the restaurants or the casino.

1 The Respondent has excepted to the judge’s refusal-to-strike por-
tions of the General Counsel’s posthearing brief to the judge. It does
not, however, explain the basis for its position. We therefore find no
merit in the exception.
In each instance, the Respondent’s managers informed
the handbillers that they were trespassing on the Respon-
dent’s property. When the handbillers refused to leave,
the Respondent called the police, who issued trespass
citations to all but one of the handbillers and escorted
them off the premises. The other handbiller was escorted
from the premises by the Respondent’s security officers.
The Respondent has requested the Las Vegas district
attorney’s office not to prosecute any of the handbillers,
and the Respondent has been advised that the district
attorney is not pursuing any of the trespass citations.
The judge found that the Respondent violated Section
8(a)(1) of the Act by preventing the off-duty Ark em-
ployees from engaging in protected handbilling on the
Respondent’s premises. In reaching that conclusion, the
judge found that, because the Ark employees worked at
the casino on a regular and exclusive basis, they were not
trespassing when they entered the Respondent’s property
to handbill.2 Accordingly, even though they were em-
ployed by Ark and not by the Respondent, the handbill-
ers were rightfully on the Respondent’s property pursu-
ant to their employment relationship, and thus were enti-
tled to distribute handbills in nonwork areas of the casino
unless the Respondent could show that it was necessary
to prohibit their activities in order to maintain production
or discipline.3 The judge also found that the areas in
front of America and Gonzalez y Gonzalez and in the
porte-cochere, where the employees were handbilling,
were nonwork areas (or, in the areas in front of the res-
taurants, mixed use areas), in which employees should be
allowed to engage in protected distribution.4 Finally, the
judge found that the Respondent had not shown that the
distribution of the handbills interfered with production or
discipline.
The Respondent has excepted to each of the judge’s
findings. It has also excepted to the judge’s failure to
find that the handbilling was unprotected because, the
Respondent contends, it was part of a course of union
conduct that had unlawful objectives. For the reasons
discussed below, we find no merit in those exceptions.
In New York New York Hotel & Casino (New York
New York I),5 the Board found that the Respondent vio-
lated Section 8(a)(1) by prohibiting handbilling in the
2 As the judge further noted, employees are allowed to spend their
off-duty hours using the casino facilities.
3 See Gayfers Department Store, 324 NLRB 1246, 1249–1250
(1997), citing Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
4 Concerning the handbilling in the porte-cochere, see Santa Fe Ho-
tel & Casino, 331 NLRB 723 (2000), in which the Board found that the
area outside the front entrance to a similar facility was not a work area
even though, as in this case, several classifications of employees
worked in the area on a regular basis.
5 334 NLRB No. 87 (2001).
334 NLRB No. 89
NEW YORK NEW YORL HOTEL & CASINO 773
porte-cochere. Like the judge here, the Board found that
off-duty Ark employees were entitled to engage in area
standards handbilling in nonwork areas of the Respon-
dent’s facility unless by doing so they would interfere
with production or discipline; that the porte-cochere was
a nonwork area; and that the Respondent had not shown
that the handbilling would interfere with production or
discipline. The Board also rejected the Respondent’s
argument that the handbilling was unprotected because it
was part of a course of conduct on the part of the Union
that violated Section 8(b)(4) and/or 8(b)(3).
The record in this case concerning the handbilling in
the porte-cochere, as well as the evidence bearing on the
Respondent’s contention that the handbilling (both in the
porte-cochere and inside the casino) was unprotected, is
virtually the same as in New York New York I.6 The tran-
scripts and exhibits from New York New York I were
made part of the record in this case, and no additional
evidence was introduced in this case concerning either
the nature of the work that is normally performed in the
porte-cochere or the Respondent’s contention that the
handbilling was in aid of unlawful activities. We shall
not, therefore, revisit those issues here.
For the reasons discussed in New York New York I, we
agree with the judge in this case that the off-duty Ark
employees who took part in the handbilling, both inside
the casino and in the porte-cochere, were engaged in pro-
tected activity and that they were not trespassing when
they did so, but were lawfully on the Respondent’s prem-
ises pursuant to their employment relationship with Ark.
We also agree with the judge, again as explained in New
York New York I, that the porte-cochere is not a work
area and that the Respondent did not demonstrate that
handbilling in the porte-cochere would interfere with
production or discipline. We therefore adopt the judge’s
finding that the Respondent violated Section 8(a)(1) by
prohibiting the employees from handbilling in the porte-
cochere.
Although we have found that the employees who were
handbilling in front of America and Gonzalez y Gonzalez
were not trespassing and were engaged in protected ac-

6 The evidence in this case differs from the earlier case in only two
respects, besides the dates of the handbilling. First, unlike the hand-
bills in New York New York I, those distributed in this case did not
expressly disclaim a dispute with the Respondent. Second, there is no
contention, and no evidence, that the nonhandbilling activities asserted
to be unlawful in New York New York I were still continuing at the time
of the events in this case. We find that neither of the latter factors
compels a different result from that in New York New York I. Indeed,
given the absence of evidence that the assertedly unlawful non-
handbilling activities were ongoing at the time of the events in this
case, we think that the Respondent’s argument that the handbilling here
was in aid of such assertedly unlawful conduct is even weaker than in
New York New York I.
tivity, we must decide whether the Respondent could
have prohibited their conduct because those areas were
work areas or because handbilling in those areas was
likely to interfere with production or discipline. The
judge found that neither of those conditions existed. He
found that the work done in front of the restaurants is
principally cleaning and maintenance and that the Re-
spondent’s employees do not perform that work con-
stantly, but rather on a rotating schedule, and as needed.
While the judge also found that employees do work con-
sistently in nearby areas (such as the front desk, the busi-
ness center, and the gaming floor) and that both employ-
ees and customers (including hotel guests) frequently
pass through the areas in front of the restaurants, never-
theless he found no evidence that the handbilling inter-
fered with either the public’s access to the restaurants or
with employees’ performance of their duties.
The judge concluded that the area in front of the res-
taurants where the handbilling took place was at most a
“mixed use” area,7 and that the handbilling was not “of
such a nature that the Respondent’s management inter-
ests out-balanced the employees’ Section 7 rights.”8
Accordingly, the judge found that the Respondent acted
unlawfully by refusing to allow the off-duty Ark em-
ployees to distribute handbills to customers in front of
America and Gonzalez y Gonzalez. We agree with the
judge that the Respondent’s prohibition of handbilling in
front of the restaurants was unlawful, but we reach that
conclusion for somewhat different reasons.
In Santa Fe Hotel & Casino, supra, the Board was
confronted with similar issues concerning employees’
attempts to engage in protected handbilling outside the
entrances to a facility similar to the Respondent’s, in
areas analogous to the porte-cochere. Like the Respon-
dent, the employer in that case contended that the areas
around the entrances were work areas because bellmen,
valet parking attendants, gardeners, cleaning and mainte-
nance personnel, and security officers worked in those
areas either continuously or on a regular basis. The
Board rejected that contention. It held, as the Board had
held before, that the occurrence of nonproduction work
on part of an employer’s property does not in itself allow
the employer to declare the whole of its property to be a
7 The judge cited United Parcel Service, 327 NLRB 317 (1998).
8 In support of this finding, the judge cited Hughes Properties, Inc.
v. NLRB, 758 F.2d 1320 (9th Cir. 1985), enfg. Harold’s Club, 267
NLRB 1167 (1983). We interpret this finding as meaning the same
thing as the judge’s additional finding that the Respondent had not
shown that the handbilling interfered with maintaining production or
discipline at the casino. See Eastex, Inc. v. NLRB, 437 U.S. 556, 572–
573 (1978), in which the Supreme Court used “management interests”
interchangeably with the employer’s need to avoid interference with
production and discipline.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 774
work area.9 The Board found that the main function of
the employer’s facility was to lodge people and allow
them to gamble, and that the work activity that took
place at the exterior entrances to the casino was inciden-
tal to that function. The Board concluded that to find
such areas to be work areas where handbilling could be
prohibited would effectively destroy the employees’ right
to engage in protected distribution.10
We find that the same considerations apply to the
handbilling in the interior of the Respondent’s casino.
Like the employer in Santa Fe Hotel & Casino, the Re-
spondent is primarily in the business of providing people
with hotel and gambling facilities. The areas in front of
America and Gonzalez y Gonzalez are not gambling or
lodging areas. They are passageways through which
employees, guests of the facility, and the public pass
from one area of the facility to another. As the judge
found, cleaning and maintenance personnel work in those
areas, but that is the same kind of work that the Board in
Santa Fe Hotel found to be incidental to the facility’s
main function of providing gambling and lodging facili-
ties. Numerous employees pass through those areas in
the course of their work (for example, bellmen transport-
ing guests’ luggage from the entrances to their hotel
rooms), but it would be a rare portion of such a facility
which no employees used in that fashion. As the Board
found in Santa Fe Hotel, to hold that such passageways
constitute work areas would effectively deny employees
the right to engage in protected distribution anywhere on
the Respondent’s property.
As the judge found, various employees of the Respon-
dent do work consistently in areas near the passageways
where the handbilling occurred. Contrary to our dissent-
ing colleague, however, that does not establish that the
passageways themselves were work areas. Significantly,
the judge found no evidence that the handbilling inter-
fered with the Respondent’s employees, and neither the
Respondent nor our colleague contends that any such
interference occurred. This absence of interference with
the Respondent’s employees is persuasive evidence that
the passageways in front of the restaurants were not work
areas.
Accordingly, we find that the passageways in front of
America and Gonzalez y Gonzalez are not work areas
and that, because the Respondent failed to show that the
Ark employees’ handbilling was likely to interfere with

9 See U.S. Steel Corp., 223 NLRB 1246, 1247–1248 (1976).
10 331 NLRB 723, quoting U.S. Steel Corp., 223 NLRB at 1248.
production or discipline, it could not lawfully prohibit
the handbilling in those areas.11
Contrary to the Respondent, we do not believe that our
findings in this regard are inconsistent with Board prece-
dent. In determining whether employees have the right to
engage in protected solicitation and distribution in gam-
bling casinos, the Board has employed the analysis ini-
tially devised for retail stores.12 In Marshall Field &
Co.,13 the Board held that a retail store could prohibit
employee solicitation not only in selling areas but also in
aisles and corridors inside the store, to avoid creating
traffic and safety hazards. The Respondent argues that
the areas in front of the restaurants were the equivalent of
aisles and corridors in retail stores, and therefore that it
was lawful to prohibit distribution of handbills in those
areas.
We disagree. We do not believe that Marshall Field
stands for the proposition that a casino owner may pro-
hibit solicitation and distribution in passageways that are
not part of the gaming area, regardless of the circum-
stances. The Board in Marshall Field held that solicita-
tion in such areas could be prohibited because “solicita-
tion carried on in such limited space may create traffic
and safety hazards tending to disrupt and interfere with
Respondent’s business to a serious degree.”14 In our
view, this rationale, which is based on the relatively nar-
row aisles near the selling floors of retail stores, cannot
reasonably be applied here.
The handbilling in front of America and Gonzalez y
Gonzalez was carried out in spacious passageways where
it created no impediment to the flow of customer and
employee traffic through the area, and certainly posed no
threat to anyone’s safety. The passageway in front of
America, where the first handbilling episode took place,
measures approximately 25 feet between the front of the
restaurant and the nearest bank of slot machines directly
across the aisle. The passageway in front of Gonzalez y
Gonzalez, where the other episode occurred, appears to
be almost as wide. Videotapes of both instances of
handbilling plainly show that the handbillers did not in-
terfere with traffic flow and were not likely to do so.
The parties stipulated that no customer was impeded in
entering or leaving either restaurant, and there is no evi-
dence that any employee was hampered in the perform-
ance of his duties, by the Ark employees’ handbilling
11 In reaching this result, we do not rely on the judge’s finding that
the areas in front of the restaurants are “mixed use” areas in which
distribution must be permitted.
12 See, e.g., Dunes Hotel, 284 NLRB 871, 876–878 (1987); Har-
old’s Club, 267 NLRB at 1167.
13 98 NLRB 88, 92 (1952), modified on other grounds 200 F.2d 375
(7th Cir. 1952).
14 98 NLRB at 92 (emphasis added).
NEW YORK NEW YORL HOTEL & CASINO 775
activities. In circumstances such as these, we do not
think that Marshall Field is good authority for prohibit-
ing protected distribution of handbills in the areas in
front of these two restaurants.
Moreover, the handbilling in front of Gonzalez y Gon-
zalez took place in a location somewhat removed from
the gaming area. Gonzalez y Gonzalez is located in an
area known as the “Village Streets,” which is made up
almost entirely of restaurants and other eating places, not
gaming facilities. In effect, the employees were handbill-
ing in a restaurant area, not a gambling area. In these
circumstances, the Respondent’s argument that the pas-
sageway in front of Gonzalez y Gonzalez should be
treated like the aisles and corridors in a retail store is
especially unpersuasive.15
For all the foregoing reasons, then, we find, in agree-
ment with the judge, that the Respondent violated Sec-
tion 8(a)(1) by prohibiting the off-duty Ark employees
from engaging in protected handbilling in the porte-
cochere and in the areas in front of America and Gon-
zalez y Gonzalez, and we adopt his recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, New York New York Hotel,
LLC d/b/a New York New York Hotel and Casino, Las
Vegas, Nevada, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.

CHAIRMAN HURTGEN, concurring in part and dissent-
ing in part.1
The owner of the property herein is Respondent New
York New York Hotel and Casino (New York). Ark
operates two restaurants within the hotel (Gonzalez y
Gonzalez and America). The employees of Ark had an
area standards dispute with Ark. While off duty, they
handbilled in front of the hotel (porte-cochere area) and
in front of the restaurants (inside the hotel). In each in-

15 In finding that Marshall Field does not support the Respondent’s
prohibition on handbilling in front of the two restaurants, we do not
rely on Harold’s Club v. NLRB, cited by the judge. The activity in that
case took place not in a passageway but in a public lounge adjacent to
the casino floor. Relying on Marshall Field, the Board in Harold’s
Club held that employee solicitation in the lounge, as in restaurants
within retail stores, could not lawfully be forbidden as long as the em-
ployees were using the lounge in a manner consistent with the lounge’s
purpose. 267 NLRB 1167. In Marshall Field, however, the Board
distinguished between restaurants on the one hand, and aisles and cor-
ridors on the other, in retail stores and held that the employer could
lawfully prohibit solicitation in the latter but not the former. 98 NLRB
at 92–94. Accordingly, we find Harold’s Club inapposite to this case.
1 See also my concurrence in New York Hotel & Casino, 334 NLRB
No. 87 (2001) (New York New York I).
stance, New York told them to leave and called the po-
lice.
The principal issue is whether these employees had a
Section 7 right to handbill on hotel property.2 In South-
ern Services, 300 NLRB 1154 (1990), enfd. 954 F.2d
700 (11th Cir. 1992), and Gayfers Department Store, 324
NLRB 1246 (1997), the employees of a contractor were
engaged in Section 7 activities vis-a-vis the contractor.
The contractor was performing services for the owner of
the property. The Board held that the employees had a
right to engage in Section 7 activity under the principles
of Republic Aviation Corp. v. NLRB, 324 U.S. 793
(1945), even though they were not employed by the
property owner. I do not pass on the validity of these
cases. However, I agree that where, as here, the primary
disputant has a fixed place of business on the property of
another, the employees of that primary disputant have
Section 7 rights under Republic Aviation.3
Under Republic Aviation, these employees could dis-
tribute in nonwork areas, but not in work areas. I con-
clude that the porte-cochere area and the area outside the
Gonzalez y Gonzalez restaurant were nonwork areas.
However, I conclude that the area outside the America
restaurant was a work area. This is so because of the
proximity of slot machines to the space in question. A
row of slot machines was stationed approximately 27 feet
directly across from the entrance to America, with addi-
tional slot machines immediately to the right of those slot
machines. These additional slot machines surround a
structure in the middle of the casino floor that houses a
service bar and public restrooms. Employees involved in
the hotel’s gaming operations are among those who work
in these areas in front of and adjacent to the entrance of
America. These include change persons from the Re-
spondent’s Slot Operations department. These employ-
ees circulate throughout the area in carts resembling
miniature New York taxi cabs, sell change to customers,
convert cash into coins for customers to play the ma-
chines, and convert large bills into smaller denomina-
tions.
Slot floor employees also refill slot machines, pay cus-
tomers who win jackpots, and perform minor slot ma-
chine repairs. They also circulate around the area to en-
sure the orderly use of the machines and also to ensure
2 In my concurrence in New York New York I, I found that picketing
that took place outside the casino may have had an unlawful objective.
Even if the picketing had such an objective, however, the handbilling
was separate from the picketing and therefore was not tainted by the
unlawful character of the picketing.
3 I recognize that these employees were off duty when they hand-
billed. I further recognize that some of them handbilled inside the
hotel. However, they were outside the Ark restaurants, which were the
targets of the handbilling.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 776
that no minors are playing the machines in the area. Slot
technicians perform major slot machine repairs. There
are also other employees of the casino whose daily job
responsibilities require them to work with or near the slot
machines. I cannot agree with my colleagues’ descrip-
tion of these areas as mere “passageways” for employees
and guests when they pass from one area of the casino to
another. Unlike the outdoor porte-cochere and the space
outside the Gonzalez y Gonzalez restaurant in the same
complex, they are, in a very real sense, employee work
stations.4
Under Republic Aviation, an employer is privileged to
prohibit the distribution of union literature in working
areas and in nonworking areas. Since I find that the area
outside the America restaurant is a working area, I find
that the Respondent was justified in prohibiting the
handbilling, and I would dismiss the portion of the
8(a)(1) complaint relevant thereto.5

Nathan W. Albright, Esq., for the General Counsel.
Gary C. Moss, Esq. and Celeste M. Wasielewski, Esq., for the
Respondent.
Kevin Kline, for the Charging Party.
DECISION1
ALBERT A. METZ, Administrative Law Judge. The issue
presented is whether the Respondent violated Section 8(a)(1) of
the National Labor Relations Act (the Act)2 by prohibiting off-
duty employees of a subcontractor from distributing union
handbills on its property. On the entire record, including my
observation of the demeanor of the witnesses, and after consid-
eration of the parties’ briefs, I make the following findings of
fact.3
I. JURISDICTION AND LABOR ORGANIZATION
The Respondent admits that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. BACKGROUND
The Respondent operates a hotel and casino in Las Vegas,
Nevada. Part of the services offered at this facility include food

4 Santa Fe Hotel & Casino, 331 NLRB 723 (2000), is distinguish-
able. In that case, the Board specifically found that the handbilled
entrances outside the Respondent’s hotel-casino were not working
areas. Id., slip op. at 1.
5 In response to my view that the handbilling occurred in a work
area, my colleagues say that the handbilling did not in fact interfere
with Respondent’s employees. However, under Republic Aviation,
once it is established that an area is a work area, the employer can
presumptively ban handbilling there. There is no need to show that
handbilling in fact is interfering with the employer’s operations.
1 This case was heard at Las Vegas, Nevada, on December 17, 1998.
2 29 U.S.C. §158 (a)(1).
3 The Respondent’s posthearing motion to strike portions (two sen-
tences) of the Government’s brief is denied.
and restaurant operations that the Respondent leases to other
companies. One such leasee is Ark Las Vegas Restaurant Cor-
poration (Ark). Ark operates the America, Gonzales y Gonzales
(GyG) and Gallagher’s restaurants, the Village Streets (a food
court), the Employee Dining Room (EDR), and the Respon-
dent’s room service. The persons working at these food service
facilities are employed by Ark and work regularly at the Re-
spondent’s casino. They are permitted to use the Respondent’s
gaming facilities during their off-duty hours. Ark’s operations
at the Respondent’s casino are nonunion. Since late 1996 the
Union has been seeking to organize Ark’s employees.
An unfair labor practice hearing involving the same parties
and some similar issues was heard by Judge Timothy D. Nelson
on February 11, 1998.4 The record and decision from that hear-
ing were received as part of the record in this case. The earlier
case involved union handbilling by Ark employees outside a
main entrance to the Respondent’s casino known as the porte-
cochere. Part of the present case involves Ark employee hand-
billing at that same location. The remainder of this case con-
cerns handbilling by Ark employees at entrances to Ark’s res-
taurants located inside of the Respondent’s casino.
III. THE HANDBILLING ON APRIL 7 AND 9
The Parties stipulated to the following facts:
1. That on April 7, 1998, Donald Goodman and John En-
sign, two off-duty employees of Ark, entered Respondent’s
property and handbilled customers of Ark’s “America” restau-
rant and other customers of Respondent passing by the entrance
to the “America” restaurant. Both Goodman and Ensign dis-
tributed [handbills] to customers entering and exiting the
“America” restaurant and other customers of Respondent pass-
ing by the entrance to the “America” restaurant and were en-
gaged in such handbilling in the area located immediately out-
side the entrance to the “America” restaurant. Supervisors and
agents of Respondent (security officers Don Fisher, Rena Fla-
vin and others) informed Goodman and Ensign that they were
not allowed to distribute [handbills] on Respondent’s property
and that both Goodman and Ensign were trespassing. Dennis
Shipley (Respondent’s vice president of human resources)
asked for, and was provided, a copy of the handbill. (GC Exh.
2, exh. A.) (This handbill protests Ark as being “unfair” for
having no contract with the Union.)
2. Respondent, through its admitted supervisors and agents
within the meaning of Section 2(11) and 2(13) of the Act,
caused Las Vegas Metropolitan Police (Metro) to be called
because of the handbilling occurring on Respondent’s property
and Metro arrived and advised both Goodman and Ensign that
they would be cited for trespass if they did not leave Respon-
dent’s premises. Both Goodman and Ensign refused to leave
and were cited by Metro for trespass. Respondent has requested
that the Las Vegas district attorney’s office not prosecute
Goodman and Ensign and Respondent has been advised that the
district attorney’s office is not pursuing the trespass citations
issued to Goodman and Ensign. Both Goodman and Ensign left
the property without incident after receiving the citations for
4 Case 28–CA–14519. Judge Nelson’s decision is dated June 29,
1998 (JD (SF)–68–98).
NEW YORK NEW YORL HOTEL & CASINO 777
trespass. During the handbilling engaged in by Goodman and
Ensign, both did not physically restrict the ingress or egress
from the “America” restaurant by any customer of Ark or Re-
spondent.
3. That on April 7, 1998, Donald Estes and Daniel Malero,
two off-duty employees of Ark, entered Respondent’s property
and handbilled customers of Ark’s Gonzalez y Gonzalez restau-
rant (GyG) and other customers of Respondent passing by the
entrance to GyG. Estes and Malero distributed [handbills] to
GyG customers entering and leaving GyG and other customers
of Respondent passing by the entrance to GyG and were en-
gaged in such handbilling in the area immediately outside the
entrance to GyG. GyG is located in a food court-type area of
Respondent’s facility. Both Estes and Malero were approached
by security officers of Respondent, who are admitted to be
agents of Respondent within the meaning of Section 2(13) of
the Act, and were advised by such security officers that they
would be cited for trespass by Metro because of the handbilling
occurring on Respondent’s property and were advised they
would be cited for trespass if they did not leave Respondent’s
property. Estes was issued a trespass citation by Metro and
Malero was not. Malero was escorted off Respondent’s prop-
erty by Respondent’s security officers and left the property by a
different exit than Estes. Respondent has requested that the Las
Vegas district attorney’s office not prosecute Estes and Re-
spondent has been advised that the district attorney’s office is
not pursuing the trespass citation issued to Estes.
4. During the handbilling engaged in by Estes and Malero,
both did not physically restrict the ingress or egress from the
GyG by any customer of Ark or Respondent.
5. That on April 9, 1998, Donald Goodman and Antonio
Ramirez, two off-duty employees of Ark, handbilled customers
of Respondent who were entering or exiting Respondent’s
property in the “porte-cochere” or valet parking area. Both off-
duty employees distributed [handbills] to customers of Respon-
dent. Respondent’s admitted supervisors and agent(s), Ward
Barrows, caused Metro to be called because of the handbilling
engaged in by Goodman and Ramirez and both Goodman and
Ramirez refused to leave the valet parking area and were cited
by Metro for trespass. Like the citations referred to above, Re-
spondent has requested that the Las Vegas district attorney’s
Office not pursue such trespass charges and the charges against
Goodman and Ramirez are not being pursued by the Las Vegas
district attorney’s office.
6. During the handbilling engaged in by Goodman and Ra-
mirez, both individuals did not physically restrict the ingress or
egress of any customer of Respondent. (GC Exh. 2.)
In addition to the stipulation, testimony and exhibits were of-
fered to describe activities that occurred at and near the en-
trances to the restaurants where the handbilling took place. In
sum, the public uses walkways that pass these entrances. Re-
spondent’s employees likewise use the same passages to access
other areas of the casino. Certain of Respondent’s employees
also clean and maintain the areas in question as part of their
regular duties. Nearby areas include gaming, hotel, and similar
functions that are offered to the public. These areas are staffed
by Respondent’s personnel including such jobs as change per-
sons slot floor persons slot technicians, booth cashiers, keno
runners, business center mail and information operations, EVS,
maintenance, bellmen, cocktail servers, and bar personnel.
The porte-cochere entrance into the casino consists of six
lanes for vehicle traffic with an 18-foot-sidewalk bordering the
building. A portion of the sidewalk is cordoned off for guests to
wait in line for taxis. The sidewalk is immediately in front of
nine sets of double doors that lead into the casino. Doormen,
valet attendants, and baggage handlers regularly work at this
location. These classifications work at this entrance on a three
shift 24-hour basis. Additionally, bellmen, cleaning, mainte-
nance, and security employees of the Respondent occasionally
work in and around the porte-cochere.
IV. THE PARTIES’ CONTENTIONS
A. Government
The parties agree that the central issue of this case is whether
or not Respondent’s property rights must yield to the Section 7
rights of the off-duty Ark employees who conducted the hand-
billing. The Government argues that handbilling by off-duty
Ark employees publicizing their labor dispute with Ark is pro-
tected and the Respondent’s property rights must yield to the
employees Section 7 rights because they are not strangers to the
Respondent’s property. The Ark employees not only work at
the casino but are invited there to personally use the casino’s
facilities when not on duty. The Government further contends
the handbilling was done in nonselling and nonwork areas of
the facility and was not disruptive to employees and patrons.
B. Respondent
The Respondent argues that the off-duty Ark employees are
not Respondent’s employees and that it lawfully banned these
nonemployees from handbilling on the interior and exterior of
its private property. In the alternative the Respondent asserts
that if the Ark employees are considered employees at the ca-
sino location they nonetheless were properly prohibited from
distributing union handbills because the areas in question are
working areas or aisleways and the handbilling ban is necessary
for legitimate business reasons.
V. ANALYSIS
A. Employee Status of the Handbillers
There are two legal analyses for determining whether solici-
tation on an employer’s property is protected by Section 7 of
the Act. The Supreme Court has made a distinction between the
rules of law applicable to employees and those applicable to
nonemployees. Republic Aviation Corp. v. NLRB, 324 U.S. 793
(1945), governs solicitation and distribution by employees
properly on company property pursuant to the employment
relationship. In Republic, the Court found an employer could
not prohibit its employees from distributing union literature in
nonworking areas of its property during nonworking time
unless the employer could show that the restriction was neces-
sary to maintain production or discipline. Supra at 803. Bab-
cock & Wilcox, 351 U.S. 105 (1956), by contrast, related to a
situation in which nonemployee union organizers attempted to
enter an employer’s property to distribute union organizational
literature. The Court held that there is a distinction “of sub-
stance” between “rules of law applicable to employees and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 778
those applicable to nonemployees.” Babcock & Wilcox, 351
U.S. at 113. See also Jean Country, 291 NLRB 11 (1988). The
Court emphasized the distinction in Hudgens v. NLRB, 424
U.S. 507, 521 fn. 10 (1976): “[a] wholly different balance was
struck [in Republic Aviation] when the organizational activity
was carried on by employees already rightfully on the em-
ployer’s property, since the employer’s management interests
rather than his property interests were there involved.” See also
Eastex, Inc. v. NLRB, 437 U.S. 556 (1978).
Applying the distinction set forth by the Supreme Court, I
find that the instant case falls under the Republic Aviation stan-
dard rather than the Babcock & Wilcox standard. Ark is subcon-
tractor retained by the Respondent to provide restaurant and
food services in the casino. The handbilling employees work at
the casino premises on a regular and exclusive basis. Not only
do they routinely work at the casino but they are also invited to
spend off-duty hours using the facilities. Thus the Ark employ-
ees were not trespassing when they entered the property to
handbill. Under all of these circumstances, it is reasonable to
require the Respondent to treat the Ark employees engaged in
organizing activities under the Republic Aviation standard. I
find that the handbilling Ark workers should be considered to
be “employees” under the Act for purposes of assessing their
rights to distribute union materials at their work site. Gayfers
Department Store, 324 NLRB 1246 (1997) (Act violated when
subcontractor’s employees threatened with arrest and removed
from the Respondent’s property because they engaged in the
distribution of area-standards handbills directed at customers of
the Respondent.); Harvey’s Resort Hotel, 271 NLRB 306
(1984) (Unlawful to maintain no solicitation/no distribution
rule pertaining to off-duty employees soliciting on the em-
ployer’s property, while they were allowed to remain on its
premises for other reasons).5
B. Handbilling at Restaurant Entrances
Work in the immediate area of the restaurant entrances
mainly involves cleaning what amounts to sidewalks leading to
other areas of the casino. Respondent’s employees do not con-
stantly work in front of the restaurants, rather the immediate
area is maintained as needed. Nearby areas have gaming and
clientele service areas such as slot machines, a business center
and check in stations. Employees do consistently work in these
nearby areas. The public and employees regularly walk past the
restaurant entrances either for ingress into the restaurant or on
their way to other areas of the casino. There is no evidence that
any of the handbilling at these interior locations caused any
interference with either the public or employees. I find that, at
most, the handbilling in front of the restaurants occurred in a
mixed-use area. As such I do not find that the handbilling by
the restaurants was of such a nature that the Respondent’s man-
agement interests out-balanced the employees’ Section 7 rights.

5 The Government also argues that Ark and the Respondent consti-
tute a single integrated enterprise and that the Ark employees should,
therefore, be considered Respondent’s employees. In light of my find-
ing that the Ark employees enjoy the status of “employees” on the
Respondent’s premises because of their regular and exclusive employ-
ment there, I find it unnecessary to decide the additional issue of their
being employed by a single integrated enterprise.
Hughes Properties, Inc., 758 F.2d 1320 (9th Cir. 1984), enfg.
267 NLRB 1167 (1983) (Respondent’s no solicitation rule held
overly broad when applied to prohibit casino employees from
soliciting fellow employees during off-duty hours in public bar
adjacent to casino gambling area); United Parcel Service, 327
NLRB 317 (1998) (Respondent violated Sec. 8(a)(1) by inter-
fering with employee’s distribution of union literature in, or
near, a mixed use check-in area).
C. Handbilling at the Porte-Cochere
The porte-cochere is a busy main entrance to the Respon-
dent’s casino and hotel. Employees are stationed there to assist
clientele who are arriving and leaving the premises. Mainte-
nance functions are also performed at this site as required.
Again there is no evidence that the handbilling by the Ark em-
ployees interfered with the employees performing their various
duties or the public using the entrance.
Judge Nelson’s decision concerning handbilling at the porte-
cochere found that the employees were protected by the Act in
this activity. In reaching that decision he noted the following:6

It appears that the Board has not yet addressed the precise
question whether the area outside the front entrance to a ca-
sino; such as the porte-cochere area herein, should be re-
garded as a “nonselling area open to the guest or the public”
within the meaning of the Dunes Hotel (284 NLRB 871)
holding, and thus a protected zone for employee solicitations
and distributions. However, on the face of things, such an area
would clearly seem to fall within the quoted category, despite
the fact that the area may also be a work situs for some of the
Respondent’s employees. Thus, the fact that some employees
perform work in the porte-cochere area would appear to be
legally subordinate to the controlling fact that the area is nev-
ertheless a “nonselling area open to the guests or the public.”
In addition I note that the handbilling on July 9 had no ad-
verse impact on either the customers’ entry or egress or on the
ability of the Respondent’s employees to perform their cus-
tomary work there. Finally, contrary to the Respondent’s ar-
guments, I find that handbilling of customers in the porte-
cochere area has no inherent tendency to interfere signifi-
cantly with either the customer’s ingress or egress or with . . .
employees who may work in the area. [Footnotes omitted.]

I agree with Judge Nelson’s reasoning that the porte-cochere
is a public area. I also find that the Respondent has not shown
that the Ark employees’ distribution of union handbills to the
public interfered with maintaining production or discipline at
the Respondent’s casino.
In sum, I find that the Respondent’s prohibition of the Ark
employees’ handbilling at both the porte-cochere and in front of
Ark restaurants was an unlawful encroachment upon the em-
ployees’ Section 7 rights. Accordingly, I find that the Respon-
dent violated Section 8(a)(1) of the Act by refusing to allow
Ark employees to distribute union literature in nonworking or
mixed areas of the Respondent’s property during nonworking
time at their only place of employment.
6 JD (SF)–68–98, slip op at 9–10.
NEW YORK NEW YORL HOTEL & CASINO 779
CONCLUSIONS OF LAW
1. New York New York Hotel, LLC d\b\a New York New
York Hotel and Casino, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Culinary Workers Union, Local 226, affiliated with Hotel
Employees and Restaurant Employees International Union,
AFL–CIO is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act.
4. The foregoing unfair labor practices constitute unfair la-
bor practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended7
ORDER
The Respondent, New York New York Hotel, LLC d/b/a
New York New York Hotel and Casino, Las Vegas, Nevada, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting subcontractor employees from engaging in
protected handbilling in front of Ark restaurants inside of the
Respondent’s casino or at the porte-cochere entrance to the
facility.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Las Vegas, Nevada, copies of the attached notice
marked “Appendix.”8 Copies of the notice, on forms provided
by the Regional Director for Region 28, after being signed by
the Respondent’s authorized representative, shall be posted by

7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mend Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all
purposes.
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since April 7, 1998. Excel Corp., 325
NLRB 17 (1997).
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con
certed activities.

WE WILL NOT prohibit subcontractor employees from en-
gaging in protected handbilling in front of Ark restaurants in
our casino or at the porte-cochere entrance to our facility.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of rights guaranteed by
Section 7 of the Act.
NEW YORK NEW YORK HOTEL, LLC, D\B\A
NEW YORK NEW YORK HOTEL AND CASINO