The definitions of "employee" and "employer" are of critical importance under all labor and employment laws, for they identify who is covered, and thus protected, by those laws. In the case of the National Labor Relations Act (NLRA), only those who meet the definition of "employee" are protected by the NLRA. For example, in Lechmere, Inc. v. NLRB,1 the Supreme Court's premise that union organizers were not employees meant that they had no NLRA-protected right to discuss unionization with Lechmere's employees on Lechmere's property. Thus, the Court concluded that the union organizers only had rights that were derivative of the rights of Lechmere's employees. In contrast, three years later in NLRB v. Town & Country Electric, Inc.,2 the Court found that union salts were employees and thus had rights directly protected by the NLRA.
The issue of who is an employee is now before the National Labor Relations Board in New York New York hotel, LLC.3 The importance of this case is signaled by the Board's decision to hold oral argument and invitation to file amicus briefs. Briefly, the case raises the question whether employees of a subcontractor, the Ark Las Vegas Restaurant Corporation, who perform their work for Ark on the premises of the New York New York hotel and Casino (NYNY), have a statutory right to distribute handbills to guests and customers while on New York New York's property during the Ark employees' off-duty hours. The handbills protested the Ark's nonunion status and wages.
The specific questions on which the Board requested briefing and argument suggest that the Board views the case as one requiring parsing of prior solicitation and distribution cases. Those questions are:
* Without more, does the fact that the Ark employees work on NYNY's premises give them Republic Aviation rights (324 U.S. 793 ) throughout all of the non-work areas of the hotel and casino?
* Or are the Ark employees invitees of some sort but with rights inferior to those of NYNY's employees?
* Or should they be considered the same as nonemployees when they distribute literature on NYNY's premises outside Ark's leasehold?
* 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?
* 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 R3d at 997.)
These are appropriate questions, given the analysis developed by the courts and Board through the years concerning the application of employee rights under §§ 2(3) and 7 and employer rights. However, this case raises far more fundamental questions, and ones that are increasingly important, given employers' increased use of subcontracting. This practice has created a complex array of workers on an employer's premises engaged in advancing its business, a situation not contemplated decades ago when the Board and courts were developing solicitation and distribution doctrines. It is, however, a situation that the legislative history of the National Labor Relations Act did contemplate.
Rather than incrementalist decision making, this case signals the need to go back to basics. Although the common law system of case analysis and legal development has many virtues, its incrementalist decision making allows interpretations to drift away from a statute's intent. Seventy years after its enactment, the National Labor Relations Act has certainly been affected by interpretative drift.4 Given the impact the decision in NewYork NewYork will have on the breadth of employee rights to make common cause with one another concerning terms and conditions of employment, to support union organization, and to engage in collective bargaining, it is essential to assess whether current interpretations are aligned with Congress' intent. …