Hunton Employment & Labor Perspectives

A recent decision by the National Labor Relations Board is another in a string of decisions where the Trump-appointed Board has attempted to rebalance a property owner’s rights with the rights under Section 7 of the National Labor Relations Act of those individuals who work on the property. In Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts, 368 NLRB No. 46 (2019), the Board overruled its previous precedent and held that a property owner may prohibit Section 7 activity by off-duty employees of a licensee or contractor performing work on the property owner’s premises.

In coming to its decision, the Board was forced to reckon with decisions of the Obama-appointed Board which held that employees of a licensee or contractor working on a property enjoyed much of the same protections that the actual employees of the property owner received. Specifically, in New York New York Hotel & Casino, 356 NLRB 907 (2011), enfd. 676 F.3d 193 (D.C. Cir. 2012), cert. denied 133 S.Ct. 1580 (2013), the Board held that off-duty employees of an onsite contractor who worked regularly and exclusively on the property had the right to access the owner’s property to engage in Section 7 activity unless the property owner could show that their activity would significantly interfere with the use of his or her property. The Board subsequently expanded on this holding in Simon DeBartolo, 357 NLRB 1887 (2011), wherein it held that Section 7 rights extend to off-duty employees of a contractor even if the employees work regularly, but not exclusively, at the property.

The Board in Bexar County Performing Arts Center found that its previous decisions regarding non-employees’ Section 7 rights had ignored what the United States Supreme Court held to be  a “critical distinction of substance between employees and nonemployees in the context of Section 7 access rights to a property owner’s property.” The Board noted that in order to accommodate the Section 7 rights of employees hired by a property owner, the owner necessarily relinquishes certain property rights. For example, in some instances, an employer is required to give a union access to its premises.

But a property owner does not make this same hiring decision with regard to employees of a contractor. As the Board noted, “[t]he owner may not have the same confidence in the integrity and self-discipline of contractor employees that it has in its own employees.” Moreover, “it may reasonably be concerned about the security of its property and the safety of persons rightfully thereon when contractor employees are off duty and not being supervised by the onsite contractor. Indeed, the property owner may have little, if any, idea who the contractor employees are.” Given this critical distinction in the relationship between employees of the property owner, on the one hand, and contractor/licensee employees, on the other, the Board reasoned that contractor/licensee employees “diminished contact with the owner and its property should reasonably correspond to lesser rights of access to the property when off duty than the property owner’s own employees enjoy.”

Accordingly, the Board enunciated a new standard which it contends strikes the appropriate balance between the rights of a property owner and the Section 7 rights of non-employees to access the owner’s property while off duty: a property owner may exclude from its property off-duty contractor/licensee employees seeking to access the property to engage in Section 7 activity unless: (i) those employees work both regularly and exclusively on the property and (ii) the property owner cannot show that the contractor/licensee employees have one or more reasonable nontrespassory alternative means to communicate their message.  Stated another way, if the contractor/licensee off duty employees do not work both regularly and exclusively on the owner’s property, and if they have another reasonable nontrespassory means to communicate their message, the owner may bar them from his property.

The Bexar County Performing Arts Center decision is not isolated in its concern for protecting property rights. For example, in July, the Board held that employers are not required to allow non-employees to use their cafeterias or similar public spaces for promotional or organizational activities—a decision we wrote about previously here. We expect the Trump Board will continue this trend.