NLRB Ruling Curbing Right of Property Owners to Control Contractors’ Employees Warrants Careful Attention

On December 16, 2022, the National Labor Relations Board issued a decision in the case of Bexar County Performing Arts Center which restricts the right of property owners to restrict the right of employees who work on the property to engage in protest activity that is protected by the federal labor laws.  The Board held in that case that a San Antonio, Texas performing arts venue did not have the right to evict employees of a symphony who distributed leaflets at the site protesting its decision to use recorded music instead of live musicians for a production of a classical music production, which stated that the patrons paid for and deserved to “DEMAND LIVE MUSIC!” The site owner had prohibited the symphony’s employees from distributing leaflets anywhere on its property.

The Board had previously held that employees could be barred from a property in such circumstances only if they “regularly work on the property” and did not have a “reasonable nontrespassory” means to protest.  In Bexar County, the Board returned to a previous standard by holding that the exclusion of such employees is justified only when the protest activity of a third-party contractor’s employees “significantly interferes with the use of the property” or is justified by another legitimate business reason, including the need to maintain production and discipline.  The Board accordingly ordered the arts center to cease and desist from prohibiting symphony employees from leafleting in nonworking areas open to the public when that leafleting relates to wages, hours, or other terms and conditions of employment.

The Board reasoned that the law has long recognized the right of employees to engage in “protected concerted” activity at their workplace on property owned by their employer, and that it saw no reason why a contractor’s employees — just because their employer does not own the property where they regularly work — should not similarly enjoy the opportunity to exercise their statutory rights at such a location.  The Board distinguished such employees from non-employee union organizers, because their interests are “much more closely aligned with those of the property owner’s own employees” given the fact that they work on the property.

The Board therefore held that the site owner’s “legitimate managerial interests” did not permit it to bar a contractor’s employees from the property when they wish to demonstrate for such purposes.  The ruling applies to off-duty activity of employees who regularly work on the property of an onsite contractor who engage in “protected concerted” protest activity at the site.

In an indication of how hotly contested these cases are becoming before the five-member Board, the decision drew the support of three Democratic-appointed members and the dissent of two Republican-appointed ones.  The decision that the case overturned was issued in 2019 by a three-member Republican majority. 

Employers should expect this Board ruling will encourage unions and off-duty employees to more aggressively seek access to areas in and around their workplace whether for protest or other conduct.  The details of such access efforts as well as property rights under state and local law will be very important in the balance.  Employers anticipating access questions or protest issues at their worksites are advised to prepare in advance. This may include examining access and property rights, business needs, and communication strategies, in an effort to stay on the compliant side of current legal standards. 

Please reach out to the authors or your usual counsel at AALRR with any questions.

This AALRR post is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.    © 2022 Atkinson, Andelson, Loya, Ruud & Romo

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