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

II

 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.

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

 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 

 New York-New 
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 wellestablished 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

 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. 

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 
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.