Executive Summary: In a 3-1 decision, the National Labor Relations Board (“NLRB” or the “Board”) ruled that a property owner may exclude from its property off-duty contractor employees engaged in Section 7 activity unless (1) those employees work both regularly and exclusively on the property and (2) the property owner fails to show that the contractor employees have one or more reasonable nontrespassory alternative means to communicate their message. See Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts and Local 23, American Federation of Musicians, Case 16-CA-193636 (August 23, 2019). In reaching this decision, the Board explicitly overruled New York New York Hotel & Casino and other cases inconsistent with this holding.
Background
The Supreme Court and Board have applied different standards to individuals engaged in Section 7 activity (such as handbilling) on private property depending on the employment relationship between those employees and the property owner. For employees of the property owner, the Board balances the employer’s right to control the use of its property against the interests of the employees to engage in Section 7 activity, resulting in off-duty employees generally having a right to handbill on their employer’s property. Nonemployees on the other hand generally do not have a right under Section 7 to access private property except in rare circumstances, such as when employees are inaccessible through alternative channels. In Bexar County Performing Arts Center Foundation, the Board addressed a third category – off-duty employees of a licensee employer, in other words, individuals who perform work at a location not owned by their employer.
Bexar County Performing Arts Center Foundation owns and operates the Tobin Center, which is a performing arts center in San Antonio, Texas. The Tobin Center has three resident companies: (1) the Symphony, (2) Ballet San Antonio, and (3) Opera San Antonio. Musicians of the Symphony are represented by the American Federation of Musicians Local 23.
Ballet San Antonio periodically uses the Symphony’s musicians to perform live music at ballets. On other occasions, it uses recorded music. In February 2017, Ballet San Antonio used recorded music instead of Symphony musicians, denying the musicians an opportunity to perform. Symphony musicians handbilled patrons of Ballet San Antonio to raise awareness of this fact, and distributed flyers on a sidewalk directly in front of the Tobin Center on property owned by the Bexar County Performing Arts Center.
Bexar County Performing Arts Center consistently maintained and enforced a no-solicitation policy on its private property and instructed police to remove the Symphony musicians and sympathizers who were handbilling on its property.
The Board’s Decision in Bexar County Performing Arts Center Foundation
In Bexar County, the Board ruled that a property owner may exclude from its property off-duty contractor employees engaged in Section 7 activity unless (1) those employees work both regularly and exclusively on the property and (2) the property owner fails to show that the contractor employees have one or more reasonable nontrespassory alternative means to communicate their message. The Board identified possible examples of alternative means, such as handbilling on public property, mass media, social media, blogs, and websites.
In so holding, the Board expressly overruled New York New York and other cases, in which the Board had held that contractor employees could access the property owner’s property to engage in Section 7 activity unless the owner could show that such activity would significantly interfere with the use of its property or to “maintain production or discipline.” The Board in Bexar County was highly critical of this exception, noting that it “has never been found to apply and predictably never would be found to apply.”
Applying its new test, first the Board noted that Symphony musicians used the Tobin Center only 22 weeks per year and that over 20 percent of their shows and rehearsals occurred at other locations. Thus, the Board found that the Symphony musicians neither “regularly” nor “exclusively” worked at the Tobin Center.
Second, the Board noted that Symphony musicians had reasonable, nontrespassory alternative means to communicate their message. Specifically, they could handbill on public property directly across the street from the Tobin Center and they could reach their target audience through mass and social media. Therefore, the Board held that Bexar County Performing Arts Center Foundation did not violate the National Labor Relations Act by removing the individuals handbilling on its private property.
Bottom Line
The Board’s decision in Bexar County, on the heels of the Board’s decision in UPMC, is another example of this Board providing property owners with greater control over the use of their property. This decision significantly alters the test to determine whether a contractor employer’s off-duty employees can engage in Section 7 activity on private property by requiring (1) that they regularly and exclusively work on that property, and (2) that there are no reasonable nontrespassory means to communicate their message. Property owners that allow another entity’s employees to work on their property should review and consider their property use policies in light of this ruling.
If you have any questions regarding this Alert, please feel free to contact the author, Henry Warnock, hwarnock@fordharrison.com, a partner in our Atlanta office and member of FordHarrison’s Labor Relations and Healthcare Practice Groups. Of course, you may also contact the FordHarrison attorney with whom you usually work.