In a decision issued on Dec. 16, 2022, the National Labor Relations Board reinstated its prior standard providing off-duty workers employed by contractors more expansive rights to access publicly accessible areas of the workplace for the purpose of engaging in union organizing activity.
Part of a wave of decisions overturning Trump-era precedent, the Board’s ruling in Bexar County Performing Arts Center Foundation d/b/a Tobin Center (“Bexar II”) prohibits property owners from excluding contractors’ employees who wish to engage in organizing activity on the worksite unless the activity “significantly interferes with the use of the property or where exclusion is justified by another legitimate reason.”
The facts are as follows. In 2019, a group of third-party contractor musicians were prohibited from distributing leafletting materials on publicly accessible areas of Tobin Center property. The Trump-era Board ruled that a property owner generally may prohibit off-duty employees of an on-site contractor from accessing private property to engage in activity protected by Section 7 of the National Labor Relations Act. The Board announced a two-step standard. Under the first step, only contractor employees who work both “regularly” and “exclusively” on the property are deemed to have a sufficient connection to the property to be afforded greater Section 7 access rights than nonemployees. However, under the second step, even if contractor employees work both regularly and exclusively on the property, the property owner is free to exclude them — even from areas open to the public — if it can show that the contractor employees “have one or more reasonable nontrespassory alternative means to communicate their message.”
Bexar II returns to the standard announced in the 2011 New York New York Hotel & Casino case, which has been upheld by courts. Under this standard, a property owner may lawfully exclude from its property off-duty employees who regularly work on the property for an onsite contractor only when it can demonstrate 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, including, but not limited to, the need to maintain production and discipline. Only under those limited circumstances may a property owner restrict contractors’ employees’ Section 7 right to interact in publicly accessible areas, according to the Board.
The Board’s decision in Bexar II applies to all pending cases.
Editor’s Note: This article was written by attorneys Jonathan J. Spitz and Richard F. Vitarelli of the law firm Jackson Lewis. ©2022 Jackson Lewis P.C. Reprinted with permission. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome. Focused on labor and employment law since 1958, Jackson Lewis P.C.’s 950+ attorneys located in major cities nationwide consistently identify and respond to new ways workplace law intersects business. Jackson Lewis helps employers develop proactive strategies, strong policies business-oriented solutions to cultivate high-functioning workforces that are engaged, stable and diverse, and share our clients’ goals to emphasize inclusivity and respect for the contribution of every employee. For more information, visit https://www.jacksonlewis.com.