NLRB Roll Back Continues – Board Changes Standard On Property Access For Off-Duty Employees Of Contractors
December 21, 2022
The National Labor Relations Board (NLRB or Board) continues to roll back the business-friendly standards established during the Trump administration and return to Obama-era standards. Last week, the Board significantly narrowed an employer’s right to exclude from its property the off-duty employees of an onsite contractor.
In the case of Bexar County Performing Arts Center Foundation, a performing arts center leased performance space to the San Antonio Symphony and the Ballet San Antonio. Off-duty symphony employees sought to pass out leaflets at the entrance to the performing arts center during a ballet performance to protest the ballet’s use of recorded music instead of live music. The performing arts center objected to their presence, and they were directed to a location across the street.
The issue for the Board was whether the off-duty symphony employees could engage in protected concerted activity on the premises of the performing arts center – a location where they performed their work but that was not owned by their employer. In 2019, when this case was first heard by the Board, the NLRB developed a new standard that classified off-duty contractor employees as trespassers and addressed whether they had alternative, nontrespassory means to communicate their message. Under this standard (called Bexar County I), the Board decided the off-duty symphony employees did not have the right to access the performing art center’s property for their leaflet campaign.
That decision was overturned by an appeals court in 2021. The case then ended up back before the Board – but the composition of the Board had changed. The current Board rejected the notion that off-duty contractor employees are trespassers and instead announced that such employees should be treated more like employees of the property owner. The Board explained that a contractor’s employees should enjoy the opportunity to exercise their statutory rights at the place where they regularly work even if their employer does not own the property.
Thus, the Board returned to the standard adopted by the Obama Board in a case called New York New York Hotel & Casino (2011). Under this standard, a property owner may lawfully exclude from its property the off-duty employees of an onsite contractor only where it can show that the contractor employees’ Section 7 activity significantly interferes with the use of the property or where exclusion is justified by another legitimate business reason.
Despite this unfavorable change in Board law, if a contractor’s employees work on your premises, there are proactive steps you can take to help minimize the effects of its employees’ off-duty protected activity. In fact, the Board stated that “[n]othing [in Bexar County II) prevents the property owner from negotiating contractual terms sufficient to protect its interests in relation to the contractor employees so that it can quickly and effectively intervene if necessary.” KZA’s attorneys are well versed in labor law and can discuss these steps with you. If you have questions about this case, are expecting or managing protected activity, or would like assistance with an NLRB matter, please contact a KZA attorney.
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