Dive Brief:

• A performing arts center's decision to prohibit members of a symphony orchestra who performed at the center from engaging in leafleting on the center's private property was lawful, the National Labor Relations Board (NLRB) held in a decision Friday, overturning its prior precedent on property access.
• In the case, Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts and Local 23, American Federation of Musicians, a group of off-duty, unionized orchestra members employed by a licensee of the arts center handed out leaflets to the public while on the center's private property. The center's event staff and police informed the group that it could not hand out leaflets on the center's property, and the group relocated across the street to continue leafleting. An administrative law judge found that the center violated Section 8(a)(1) of the National Labor Relations Act (NLRA), relying on NLRB precedent set in two prior decisions: New York New York Hotel & Casino and Simon DeBartolo Group.
• The NLRB's majority reversed the judge's decision, holding that contractor employees — in this case the orchestra members, who it said were "neither employees of the property owner nor, like nonemployees, utter strangers to the owner's property" — are not generally entitled to the same Section 7 rights under the NLRA as a property owner's own employees. The board said decisions in both New York New York and Simon DeBartolo failed to properly accommodate property owners' rights as defined by the U.S. Supreme Court in its 1992 decision in Lechmere, Inc. v. NLRB. NLRB set a new standard which it said would be applied retroactively to Bexar: a property may exclude off-duty contractor employees from engaging in Section 7 activity on their property, "unless (i) those employees work both regularly and exclusively on the property and (ii) the property owner fails to show that they have one or more reasonable nontrespassory alternative means to communicate their message." It also dismissed the complaint.

Dive Insight:

The NLRB's ruling in Bexar is a notable change of precedent, Philip A. Miscimarra, former NLRB chair and current partner at Morgan Lewis, told HR Dive in an interview. The new standard set in the ruling is "somewhat more narrow" than what the board has articulated in previous rulings, he noted, but it nonetheless addresses a type of employment arrangement that is growing to be more common in the U.S.

"In our complicated economy right now, we increasingly see situations where all kinds of employees do various types of work on someone else's property, in the physical location of someone else's business," Miscimarra said. "I do think that's one respect in which this decision has importance."

The Supreme Court's ruling in Lechmere was important to the majority's decision in Bexar, Miscimarra said. In Lechmere, the court rejected a previous NLRB ruling that granted nonemployee union organizers access to a parking lot partly owned by an employer. The court clarified that, "the NLRA confers rights only on employees, not on unions or their nonemployee organizers. Thus, as a rule, an employer cannot be compelled to allow nonemployee organizers onto his property." It did note that there are exceptions, holding that granting such access to nonemployee union organizers "is only when reasonable access to employees is infeasible that it becomes appropriate to balance [Section] 7 and private property rights."

But the cases in which those exceptions apply are "very narrow," Miscimarra said in an emailed statement, noting past cases in which the exception applied dealt with workplaces like logging camps and mountain resort hotels — areas which it would be difficult to reach the persons to whom the workers' appeals were directed. 

In her dissent, board member Lauren McFerran argued that Lechmere did not apply to the Bexar case, saying that the U.S. Circuit Court for the District of Columbia previously ruled NLRB's holding in New York New York was consistent with Lechmere. "Today's decision takes away important Section 7 rights for a segment of the workforce that may need them the most, but it utterly fails to explain how that outcome serves the purposes of the National Labor Relations Act and why the Board should abandon an approach, endorsed by the District of Columbia Circuit, that avoided such a result," McFerran wrote.

Employers who have similar employment arrangements to the one described in Bexar should take note about its implications on their property rights, Miscimarra said: "Employers with these types of workers, just because you have this type of interchange, the law does not extinguish your right to control access to your property."

The NLRB indicated in May that it would propose rulemaking that would establish standards for worker and union access to an employer's private property as early as September 2019. NLRB chairman John Ring previously stated at a 2018 conference that employer property access was a potential key item on the agency's rulemaking agenda. Notably, in July, the board also overturned its precedent allowing nonemployee union representatives' access to a company's public areas.