NLRB: Property Rights Trump Off-Duty Employees’ Section 7 Rights

Section 7 of the National Labor Relations Act (NLRA) provides protections to employees that are engaged in any protected concerted employee activity undertaken for mutual aid, such as union organizing and leafletting. In particular, leafletting is not only permissible under the NLRA, but is also protected by the First Amendment of the US Constitution. The Board and Supreme Court of the United States have long held that, in balancing an employee’s Section 7 rights against an employer’s managerial interests (rather than its property right interests), the employees of a property owner generally retain the ability to exercise their Section 7 rights during non-working hours or off-duty time. However, relying upon an individual’s constitutional rights to property, the Supreme Court has permitted property owners to exclude non-employees from exercising Section 7 rights on their private property, except in limited circumstances.

In Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts and Local 23, American Federation of Musicians, the Foundation, which operates the Tobin Center for the Performing Arts (the Tobin Center), filed exceptions to the Decision of an NLRB Administrative Law Judge (ALJ) finding that it violated the NLRA by removing a dozen San Antonio Symphony members represented by the American Federation of Musicians, who performed at the Tobin Center but were not its employees, from its property during a performance by Ballet San Antonio. After their removal from the premises, the affected musicians relocated to a nearby public sidewalk.

The ALJ’s ruling was based upon prior NLRB precedent, including New York New York Hotel and Simon DeBartolo, holding that off-duty employees of a contractor possessed the same Section 7 rights as employees of the property owner. However, in reversing the ALJ’s Decision, the Board noted that its prior decisions “failed to properly accommodate the property owner’s property rights, including its right to exclude.” The Board then found that the musicians at the Tobin Center were “off-duty employees of a licensee employer who are neither employees of the property owner nor, like nonemployees, utter strangers to the owner’s property.” In the Board’s view, this distinct category of contractor employees is not entitled to “the same Section 7 access rights as the property owner’s own employees.”

The Board also distinguished between the right of the property owner’s employees to be on the property from the rights of an onsite contractor’s employees, noting that the latter’s right to access the property is “derivative of their employer’s right of access to conduct business there.”

In these circumstances, the Board concluded that the off-duty employees of a contractor are considered “trespassers,” with no right to leaflet on the Tobin Center’s private property. However, the Board also went on to observe that the affected contractor’s employees would be entitled to access to the private property for Section 7 purposes only if: (1) those employees work both regularly and exclusively on the property; and (2) the property owner fails to establish that they have one or more reasonable, non-trespassory alternative means to communicate their message. In the Board’s view, if there is at least one nontresspassory channel by which the affected contractor’s employees may communicate their message, a property owner, like the Tobin Center, will not be compelled to permit the contractor employees to “infringe upon the property owners’ rights.”

Takeaway for Employers

It is not uncommon for NLRB rulings to vary from administration to administration. And, the Trump Board’s Bexar County Decision is another example of this longstanding trend as it reverses prior Board precedents and recognizes that, in certain circumstances, a third-party employer's property rights can trump the employees’ Section 7 rights.