In Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts and Local 23, American Federation of Musicians (“Bexar County”), the National Labor Relations Board (“Board”) reversed a rule adopted by the Board during the Obama era that had held that off-duty employees of an onsite contractor who worked regularly and exclusively in a restaurant on the hotel and casino’s property had the right to access the owner’s property to engage in Section 7 activity.
In Bexar County, the Arts Center was accused of violating the National Labor Relations Act by refusing to allow the orchestra members who were represented by the American Federation of Musicians (“AMF”) from handing out leaflets to the public while on the Arts Center’s private property. AMF argued that under the Board’s decisions in New York New York Hotel & Casino and Simon DeBartolo Group the orchestra members had access rights because they performed at the Arts Center. The Administrative Law Judge (“ALJ”) agreed.
In reversing the ruling in Bexar County, the Board criticized the prior rationale in New York New York Hotel & Casino, stating that the decision failed to properly accommodate the property rights of an owner as described in a 1992 Supreme Court decision, Lechmere, Inc. v. NLRB. The Board made clear that property owners’ rights in situations where the individuals at issue are not employees of the property owner are more expansive. The Board pointed out that “[c]ontractor employees are not generally entitled to the same Section 7 access rights as the property owner’s own employees.” The new standard adopted by the Board in Bexar County provides that a property owner may exclude off-duty contractor employees from engaging in Section 7 activity on its property “unless (i) those employees work both regularly and exclusively on the property and (ii) the property owner fails to show that they [contractors] have one or more reasonable alternative nontrespassory means to communicate their message.” The Board found that the Union could not satisfy this standard as the orchestra members did not work exclusively on the Arts Center’s property, as the symphony only used the property for performances and rehearsals 22 weeks of the year, and because the orchestra members could leaflet on public property directly across the street from the Arts Center and through mass and social media.
COUNSEL TO MANAGEMENT:
The Board’s decision in Bexar County is a significant one for employees subject to the NLRB’s jurisdiction. As labor needs increase in comparison to labor demand, relationships such as the one in Bexar County become more and more the new normal. Based on this case, the lines are not yet crystal clear and these situations remain a fact-based analysis. Where your company utilizes labor providers (i.e., independent contractors) whether in manufacturing, Ag-commercial processing, commercial packing and handling of agricultural products, etc., companies seem to now have a greater latitude to control their property and exclude employees of labor providers from leafletting on their property. Furthermore, because of advances in technology and communication options, the situations in which there would not be a “more reasonable alternative nontrespassory means” to communicate the Union’s message is remote. However Secondary Agricultural Employers should be aware that their right to exclude contractor employees may be limited to the extent the company might qualify as a joint employer of the contracting employees. If your company has contract employee working at your processing facility some or all of the time and you are uncertain of your rights to control your property, please contact the experts at the Saqui Law Group, a division Dowling Aaron Incorporated.