United States: NLRB Overrules Precedent: Property Owners May Exclude Off-Duty Contractor Employees From Premises

On August 23, 2019, the National Labor Relations Board ("NLRB") issued a decision (Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts and Local 23, American Federation of Musicians) overruling previous NLRB decisions and holding that off-duty employees of a contractor are not generally entitled to the same Section 7 access rights as a third-party property owner's employees. Instead, a property owner may exclude off-duty contractor employees from its property if: (i) the employees do not work both regularly and exclusively on the property; and, (ii) the employees have one or more reasonable alternative means to communicate their message without trespassing.

Background of the Decision

The case involved the distribution of leaflets by San Antonio Symphony employees on the private sidewalk of the Tobin Center, a local performing arts arena. The Tobin Center's private sidewalk was conveyed by the city of San Antonio to be used primarily for public purposes, such as performance and visual arts activities that are open to the general public.

Symphony employees decided to distribute leaflets on the sidewalk because they were upset that Ballet San Antonio chose to use recorded music instead of live music provided by Symphony employees. However, the Tobin Center had a general rule prohibiting solicitation and has consistently removed solicitors from the private sidewalk. When Symphony employees attempted to hand out leaflets on the Tobin Center's sidewalk, Tobin Center staff informed the Symphony employees that they could not distribute leaflets on the Tobin Center's property, including the sidewalk. Therefore, the Symphony employees moved to the public sidewalk across the street from the private sidewalk and proceeded to distribute hundreds of leaflets.

While Symphony employees are employed by the San Antonio Symphony, a contractor of the Tobin Center, they are not employees of the Tobin Center. The San Antonio Symphony has a use agreement with the Tobin Center allowing usage of the Center for performances and rehearsals 22 weeks of the year.

Legal Background

Section 7 of the National Labor Relations Act permits employees to act together as a group for their mutual benefit or protection. However, when off-duty contractor employees' Section 7 rights and a property owner's right to exclude are in conflict, the rights must be balanced. The NLRB previously held as recently as 2011 that off-duty employees of an onsite contractor who regularly worked at the property had the right to access the property to engage in Section 7 activity, unless the property owner could show that the activity would significantly interfere with the use of its property or is justified by another legitimate business reason. These previous decisions provided off-duty contractor employees with essentially the same rights as employees of the property owner.

Bexar County overrules the NLRB's previous decisions and holds that contractor employees are not generally entitled to the same Section 7 access rights as the property owner's own employees. Instead, Bexar County explains that a property owner may exclude off-duty contractor employees from the premises if the contractor employees do not work both regularly and exclusively on the property, and the contractor employees have at least one reasonable alternative means to communicate their message without trespassing. Bexar County also provides that social media, blogs or websites may be some examples of reasonable alternative means to communicate when contractor employees are attempting to communicate with the general public.

Takeaways for Property Owners

Bexar County rebalances the rights between contractor employees and property owners. Therefore, property owners now have the right to exclude off-duty contractor employees if they do not regularly and exclusively work on the property and they have at least one reasonable alternative method of communication.

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