For the second time in less than a week, the National Labor Relations Board has thrown out a Trump-era standard and reinstated Obama-era rules favorable to labor unions. In Bexar County Performing Arts Center Foundation, 16-CA-193636 (“Bexar County II“), the Board restricted a business owner’s ability to prohibit off-duty contract workers from conducting labor protests on its property.

The Bexar County II decision overturns a previous, Trump-era standard. In the first Bexar County decision, the Board found that the Bexar County Performing Arts Center Foundation was within its rights to prohibit contract musicians from distributing leaflets outside of the music venue. Under the Bexar County I standard, property owners could prohibit off-duty contract workers from being on the property unless they work “regularly and exclusively” on that property and the owner shows that the workers have a reasonable, non-trespassory alternative to communicate their message.

The Court of Appeals for the District of Columbia Circuit rejected the Board’s Bexar County I standard on the grounds that it was being inconsistently applied. The Court of Appeals sent the case back to the Board, which now has a majority of members appointed by President Biden. The Biden Board, in Bexar County II, abandoned the Bexar County I ruling, and returned to the standard enunciated in its 2011 ruling, New York New York Hotel & Casino, 356 NLRB 907 (2011).

Under the New York New York standard, a property owner may prohibit off-duty contract workers from protesting on its property only if it can show that the labor protest would or does significantly interfere with the property’s use, or where it can show another legitimate business reason to bar the contract workers.

Moving forward, property owners should tread carefully when attempting to limit contractors from protesting labor conditions on their property.

Ballard Spahr’s Labor and Employment Group regularly advises clients on navigating the shifting landscape of NLRB decisions and regulations, including defense of unfair labor practice charges.

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