Employment Law Daily 3-1 NLRB changes course, says employer may bar off-duty contractor employees seeking to leaflet from its property
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Wednesday, August 28, 2019

3-1 NLRB changes course, says employer may bar off-duty contractor employees seeking to leaflet from its property

By Ronald Miller, J.D.

The 3-1 Board held that a property owner may bar off-duty contractor employees seeking access to its property to engage in Section 7 activity, unless those employees work both regularly and exclusively on the property, and the property owner fails to show that they have a reasonable, nontrespassory alternative to communicate their message.

In another roll-back of Board protections for employees, a divided four-member Board found a performing arts center had the right to prohibit off-duty symphony employees employed by one of its licensees, the San Antonio Symphony, from accessing a sidewalk located on its private property to engage in informational picketing to the general public. The Board held that contractor employees are not generally entitled to the same Section 7 access rights as the property owner’s own employees. Off-duty employees of a contractor are trespassers and are entitled to access for Section 7 purposes only if the property owner cannot show that they have one or more reasonable alternative nontrespassory channels of communicating with their target audience. Noting that the majority was overturning judicially approved precedent, Member McFerran filed a separate dissenting opinion (Bexar County Performing Arts Center Foundation dba Tobin Center for the Performing Arts, August 23, 2019).

Private property. The Bexar County Performing Arts Center Foundation owns and operates the Tobin Center. At the edge of the center’s private property are sidewalks used by pedestrians to walk around the Tobin Center. In 2014, the City of San Antonio conveyed to the center the deed to the Tobin Center property, including its surrounding sidewalks. The center maintains a general rule prohibiting all solicitation on its private property, including on the sidewalks. It has consistently removed individuals from its property who sought to hand out flyers on the private sidewalk.

The Tobin houses three resident companies: the symphony, a ballet company, and an opera company. Each of these companies has a licensor-licensee relationship with the center. The symphony is a party to a collective bargaining agreement with a union of musicians. During the performance season, symphony employees used the center’s break room for breaks and union meetings. They also conducted about 79% of their rehearsals at the center.

Leafletting. The ballet company occasionally used live music performed by the symphony. However, it chose to use recorded music for a production of Sleeping Beauty, as it had in the past. The use of recorded music denied the symphony employees the opportunity to perform the work. To raise awareness among ballet patrons about the use of recorded music, the union decided to leaflet before the four Sleeping Beauty performances.

After the performing arts center management learned of the union’s plan to leaflet, it instructed its staff not to permit leafletting on its property. When symphony employees attempted to distribute leaflets, staff and police officers immediately informed them that they could not pass out the leaflets on center property, including the sidewalks, and to relocate across the street. Thereafter, the symphony employees moved to public sidewalks across the street.

Factual distinctions found immaterial. Relying on prior Board decisions in New York New York Hotel & Casino, and Simon DeBartolo Group, an administrative law judge found immaterial the factual distinctions between this case and New York New York, including that the symphony employees were not engaging in organizational leafletting but sought to appeal to the patrons of another one of the center’s licensees. The ALJ rejected the center’s assertion that under New York New York, it had legitimate business reasons for prohibiting the symphony employees from distributing leaflets on its property.

Guiding principles. The Board observed that in Lechmere, Inc. v. NLRB, the Supreme Court articulated three guiding principles regarding access to private property to engage in Section 7 activity. First, employees’ Section 7 rights are not absolute. Second, in reaching an accommodation, the Board must balance the “nature” and “strength” of the respective Section 7 rights against the private property rights of the property owner. Third, when Section 7 rights infringe on private property rights, the Court has labeled the distinction between the union activities of employees versus those of nonemployees as one of “substance.” Thus, although employees of an onsite contractor enjoy some Section 7 access rights, they are weaker than those of the property owner’s own employees.

When a property owner itself employs employees covered under the NLRA, the owner-employer relinquishes, to a certain degree, its control over its real property to accommodate its employees’ Section 7 right to engage in protected concerted activity, subject to the owner-employer’s managerial interest in maintaining production and discipline, noted the Board. However, the same is not true where contractor employees seek to engage in Section 7 activity on the property owner’s property while off duty. The property owner may reasonably be concerned about the security of its property and the safety of persons rightfully present when contractor employees are off duty and not being supervised by the onsite contractor.

Regularly and exclusively. Here, the Board agreed with the holding of Board decisions before New York New York that only contractor employees who “regularly and exclusively” work for a contractor on a property owner’s property have some Section 7 access rights. Overturning both New York New York and Simon DeBartelo, the Board announced a new standard. The Board will consider contractor employees to work “regularly” on the employer’s property only if the contractor regularly conducts business or performs services there. In addition, a contractor’s employees work “exclusively” on the owner’s property if they perform all of their work for that contractor on the property, even if they also work a second job elsewhere for another employer.

Reasonable alternative means. Additionally, the Board must still consider whether these contractor employees have a reasonable alternative means of communicating their Section 7 message without causing any destruction of the property owner’s property rights. When off-duty contractor employees seek to access a property owner’s property to communicate with the general public, the property owner may exclude them if they can effectively communicate their message through nontrespassory means.

Here, the Board found that the symphony employees did not work exclusively on the performing arts center’s property, and their employer, the symphony, did not regularly conduct business or perform services there—because it only used the property for performances and rehearsals 22 weeks of the year. Moreover, the symphony employees had a reasonable alternative nontrespassary channel of communicating their concerns to the public by leafleting on public property directly across the street from the performing arts center. They also had access to their target audience through mass and social media. Accordingly, the performing arts center lawfully denied the symphony employees access to its property, and their complaint was dismissed.

Dissent. In a dissenting opinion, Member McFerran observed that, with judicial approval, the Board has found that statutory employees, like the symphony employees, generally have the right to engage in non-disruptive customer leafletting in public areas of a property where they regularly work, even if they are not employed by the property owner. McFerran argued that the exclusivity requirement introduced by the majority serves no purpose other than to arbitrarily curtail who can exercise Section 7 rights. Further, she argued that the inevitable result of the majority’s new standard will be to ensure that employer property rights will almost invariably prevail, stripping important rights from workers who work on property owned by someone other than their employer.

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