FOR IMMEDIATE RELEASE                                                                                R-2632

Tuesday, September 4, 2007                                                                             202/273-1991

                                                                                                               www.nlrb.gov

                                               

NLRB TO HOLD ORAL ARGUMENT ON WHETHER

EMPLOYEES OF A LESSEE RESTAURANT CAN DISTRIBUTE

 HANDBILLS ON PROPERTY OF LESSOR HOTEL

 

            The National Labor Relations Board will hear oral argument on Friday, November 9, 2007, in New York New York Hotel, LLC, d/b/a New York New York Hotel and Casino,

Case 28-CA-14519.  The issues presented in the case include whether Ark Las Vegas Restaurant Corporation’s employees, who are employed by Ark on the premises of the New York New York Hotel and Casino, have a statutory right to distribute handbills at various places on hotel property during the employees’ off-duty hours.  The handbills were aimed at guests and customers and protested Ark’s nonunion status and wages.

 

            Today, the Board issued the formal notice of oral argument and invited the parties and interested amici to file briefs on the issues raised in the case.  (The full text of the Board’s notice is attached.)  Briefs must be filed with the Board’s Executive Secretary by close of business in Washington, D.C. on October 2, 2007.  No extensions will be granted.  Briefs are limited to 50 pages.  Amici briefs should include a request to participate at oral argument, if desired.  Parties only may file responsive briefs, which will be due on or before October 16, 2007.  The Board encourages parties to file briefs electronically through the Agency’s website (www.nlrb.gov).  Briefs also may be filed in person, or by mail, or commercial courier.  If the brief is not electronically filed, a CD-ROM containing the brief must be submitted with it.

 

            Argument will be heard by Chairman Robert J. Battista and Members Wilma B. Liebman, Peter C. Schaumber, Peter N. Kirsanow, and Dennis P. Walsh.  The hearing will begin at 9:30 a.m. in the Ceremonial Courtroom, Room 643, Philadelphia City Hall, Broad and Market Streets, Philadelphia, Pennsylvania.

 

[Briefs and other documents related to this case can be found at

http://www.nlrb.gov/research/frequently_requested_documents.aspx]

 

 

###

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

 

 

   New York New York Hotel, LLC, d/b/a

   New York New York Hotel and Casino

 

and                                                                  Case 28–CA–14519

 

   Local Joint Executive Board of Las Vegas,

   Culinary Workers Union, Local 226, and

   Bartenders Union, Local 165, affiliated

   with UNITE HERE[1]  

 

 

                 

NOTICE OF ORAL ARGUMENT AND INVITATION TO FILE BRIEFS

 

 

            PLEASE TAKE NOTICE that, pursuant to the authority vested in the National Labor Relations Board under the National Labor Relations Act, as amended, oral argument will be held before the National Labor Relations Board on Friday, November 9, 2007, in the Ceremonial Courtroom, Room 643,  Philadelphia City Hall, Broad and Market Streets, Philadelphia, Pennsylvania.

 

            The parties and interested amici are invited to file pre-argument briefs with the Board addressing the questions set forth below, which were specifically raised by the Court of Appeals, 313 F.3d 585, 590 (D.C. Cir. 2002). The parties and the amici also may raise and address any other relevant issues.

 

1.  Without more, does the fact that the Ark employees work on NYNY’s premises give them Republic Aviation rights (324 U.S. 793 [1945]) throughout all of the non-work areas of the hotel and casino?

 

2.  Or are the Ark employees invitees of some sort but with rights inferior to those of NYNY’s employees?

 

3.  Or should they be considered the same as nonemployees when they distribute literature on NYNY’s premises outside Ark’s leasehold? 

 

4.  Does it matter that the Ark employees here had returned to NYNY after their shifts had ended and thus might be considered guests, as NYNY argues?

 

 

 

5.  Is it of any consequence that the Ark employees were communicating, not to other Ark employees, but to guests and customers of NYNY (and possibly customers of Ark)?  Compare United Food & Commercial Workers, 74 F.3d at 298.  (Derivative access rights, the Supreme Court has held, stem ‘entirely from on-site employees’ Section 7 organizational right to receive union-related information.’  ITT Industries, 251 F.3d at 997.)   

 

            Briefs must be filed with the Board’s Executive Secretary by close of business in Washington, D.C. on October 2, 2007.  No extensions will be granted.  Briefs are limited to 50 pages and must include a certificate of service showing service on the parties, whose names and addresses are attached.[2]  Briefs of amici should include a request to participate at oral argument, if desired, on the page preceding the certificate of service. Parties only may file responsive briefs, which will be due by close of business on October 16, 2007.  All party briefs will be posted on the Board’s website, www.nlrb.gov, as they are received. Amicus briefs will be posted when the Board grants amicus requests. 

 

            Time limitations may preclude granting all requests by amici to participate at oral argument.  Prior to argument, the Board will notify all parties and amici of its decisions regarding their participation and the time allotted to each.

 

By direction of the Board:

 

Dated at Washington, D.C., September 4, 2007. 

 

 

 

 

 

 

                                                                                                            Lester A. Heltzer

                                                                                                            Executive Secretary

Attachment

 

 

 

 

 

 

 

 

 

 

 

PARTIES TO BE SERVED

 

EMPLOYER

 

Gary C. Moss, Esq.

 DLA Piper USLLP                                                      

3960 Howard Hughes Pkwy, Suite 400

Las Vegas, Nevada 89169                                                                                    

Facsimile  702-737-1612                                      

 

CHARGING PARTY

 

Michael T. Anderson, Esq.

Davis, Cowell & Bowe, LLP

8 Beacon Street, 4th Floor

Boston, Massachusetts 02108

Facsimile  617-227-5767

 

GENERAL COUNSEL  – NLRB

 

Michael J. Karlson, Regional Attorney

Region 28, National Labor Relations Board

2600 North Central Avenue, Suite 1800

Phoenix, Arizona 85004-3099

Facsimile 602-640-2178

 

 

 

 

 


[1] We have amended the caption to reflect the disaffiliation of the Culinary Workers Union and Bartenders Union from the AFL-CIO and their affiliation with UNITE HERE.

[2] Briefs may be filed electronically through the Board’s website, www.nlrb.gov, in person, or by mail or commercial courier.  If the brief is not electronically filed, a CD-ROM containing the brief must be submitted with it.  The CD-ROM must be labeled with the case name, lead docket number, and the name of the organization or individual on whose behalf the brief is submitted.  Instructions and requirements for electronic filing are set forth at the Board’s website.