Labor Law Update: Contractors Lawfully Prohibited From Leafleting on Third Party Premises

Saul Ewing Arnstein & Lehr LLP
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Saul Ewing Arnstein & Lehr LLP

On August 23, 2019, the National Labor Relations Board ("NLRB") determined that property owners may prohibit non-employees from accessing their premises to engage in conduct that could be protected by federal labor law. This ruling is consistent with other decisions recently issued by the NLRB, which have overturned longstanding precedent in favor of more employer-friendly standards.

In February 2017, the Tobin Center for the Performance Arts ("Tobin Center") refused to let off-duty workers employed by the San Antonio Symphony ("Symphony"), a licensee of the Tobin Center, use Tobin Center's private property, including a sidewalk outside of the main entrance, to distribute leaflets to the public in protest of the Tobin Center's decision to use recorded music instead of live performers for an upcoming performance. The union challenged the legality of the Tobin Center’s actions, alleging that those actions interfered with the Symphony’s employees’ right to engage in union-related conduct under Section 7 of the National Labor Relations Act (“NLRA”).

The majority of the Board weighed the property owner's inherent right to exclude others, against the non-employees' alleged rights under Section 7. The Board highlighted that property owners have the right to control access to their property, restrict the hours in which they grant such access, and prohibit certain activities on their property. Conversely, with rare exception, "Section 7 [of the NLRA] does not grant non-employees the right to access private property to engage in union activities."

The Board articulated that the proper standard for determining whether a property owner can exclude non-employees from their private property is whether: (1) those employees work both regularly and exclusively on the property, and (2) the employees would not have one or more reasonable non-trespassory alternative means to communicate their message. This standard is a diversion from the NLRB's prior holding in New York New York Hotel & Casino 356 NLRB 907, 916 (2011), enf’d 676 F.3d 193 (D.C. Cir. 2012), cert. denied 133 S.Ct. 1580 (2013), which focused on the property owner’s ability to show that the non-employees’ activity would significantly interfere with the property owner’s use of its property or other legitimate business reason.

As a result, non-employees retained by a contractor or licensee generally are not entitled to the same Section 7 access rights as the property owner’s own employees.  In this case, the record was clear that the Symphony employees did not work "regularly and exclusively" for the Tobin Center.  The Symphony only used the Tobin Center for performances and rehearsals 22 weeks out of the year, and they often performed at other venues.  Moreover, the Symphony employees had a reasonable alternative to communicate their issues to the public by leafleting on public property directly across the street from the Tobin Center, or by spreading their message through social media.

Property owners engaging contractors with a unionized workforce should take note of this employer-friendly development in the interpretation of the NLRA.

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