In a case returned by the United States Court of Appeals for the District of Columbia Circuit for further consideration, the National Labor Relations Board, in a 3-1 decision, found that a Las Vegas casino violated federal labor law by prohibiting off-duty employees of restaurants inside the casino from distributing handbills on casino property.

The handbills sought public support for the organizing efforts of employees of the restaurants, which are operated by a contractor inside the New York-New York Casino. They were distributed to customers at restaurant entrances and at the casino's main entrance.

In addressing questions posed by the Court of Appeals, the NLRB solicited statements from the parties and amicus curiae, and held oral argument in November 2007. Based on this input, the Board modified the standard used to determine the rights of a contractor’s off-duty employees to access the property owner’s premises.

In their decision, Chairman Liebman and Members Becker and Pearce stated, “We strike an accommodation between the contractor employees’ rights under federal labor law and the property owner’s state-law property rights and legitimate managerial interests.”  They concluded that:

“[T]he property owner may lawfully exclude such employees only where the owner 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…”.

In dissent, Member Hayes wrote that the majority’s decision “artificially equates the Section 7 rights of a contractor’s employees with those of the property owner’s employees, pays only lip service to the owner’s property interests, and gives no consideration to the critical factor of alternative means of communication.” He would have found only that the casino acted unlawfully in excluding the handbillers from the sidewalk area outside its main entrance, but that it was within its rights to expel them from the interior of the casino.