Get Off My Lawn: The NLRB Sets New Standard for Access to Employer Property By Off-duty Employees of Contractors

By Kathleen J. Jennings (kjj@wimlaw.com)

Last week, the National Labor Relations Board handed employers a victory in a case involving access to property. Bexar County Performing Arts Foundation, N.L.R.B., 16-CA-193636 (8/23/19). Specifically, the Board addressed whether and when a property owner must grant access to the off-duty employees of an onsite contractor to engage in Section 7 activity. Overruling precedent set during the Obama era, the Board held that contractor employees are not generally entitled to the same Section 7 access rights as the property owner’s own employees. Therefore, a property owner may exclude from its property off-duty contractor employees seeking access to the property to engage in Section 7 activity unless (i) those employees work both regularly and exclusively on the property and (ii) the property owner fails to show that they have one or more reasonable nontrespassory alternative means to communicate their message. Further, the Board stated that it considers contractor employees to work “regularly” on the owner’s property only if the contractor regularly conducts business or performs services there. In addition, the Board will consider contractor employees to 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.

This case involved the Tobin Center, a performing arts center, which houses three principal resident companies: the Symphony, Ballet San Antonio, and Opera San Antonio. When the Ballet San Antonio chose to use recorded music for its performances of Sleeping Beauty, the Symphony employees were not pleased because that meant lost work for them. The Union representing the Symphony employees decided to hand out leaflets on Tobin Center property before the four weekend performances of Sleeping Beauty. In response, the Tobin Center barred the Symphony employees and their sympathizers from leafletting on its property, and the Union filed a charge with the NLRB.

In its decision, the Board noted that the Symphony employees did not work on the Tobin Center’s property exclusively; they performed at other venues as well. Furthermore, the Symphony employees did not “regularly” work on the Tobin Center’s property because the Symphony itself did not regularly conduct business or perform services there. Finally, they had other alternative nontrespassory channels of communication to reach the general public: a public sidewalk across the street from the Tobin Center’s property. Accordingly, the Tobin Center lawfully denied the Symphony employees access to its property for their leafletting activities.

The current Republican majority Board has shown that it is willing to give employers greater control over their property in the face of union activity. This ruling follows the Board’s decision in June in which it overruled 38 year-old precedent and held that an employer does not have a duty to allow the use of its facility by nonemployees for promotional or organizational activity. UPMC, N.L.R.B., 368 N.L.R.B. No. 2 (6/14/19). The Board has also announced that it will use its rulemaking power to clarify standards for union activity on employer property.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

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