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Employers Given Greater Control Over Property Access Rights of Off-Duty Contractors

September 03, 2019

Employers now enjoy greater freedom to prohibit off-duty contactor employees from accessing private property to engage in Section 7 activity, after a recent ruling by the National Labor Relations Board (the “Board”).

In the case of Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts and Local 23, American Federation of Musicians, the Tobin Center wished to prohibit the off-duty employees of a contractor, the San Antonio Symphony, from accessing a sidewalk located on Tobin Center private property to distribute leaflets to the general public. At the lower level, the judge found that the Tobin Center had violated Section 8(a)(1).

The Board determined that the Tobin Center could lawfully prohibit the off-duty employees from leafleting on Tobin Center property. The Board noted that the Tobin Center enjoys constitutional property rights, including the general right to control access to its property, restrict the hours during which it grants access to the property and to prohibit certain activities on its property, including those that are disruptive to patrons and guests. Perhaps most significantly, The Tobin Center “has the right to utilize what the Supreme Court has characterized as ‘one of the essential sticks in the bundle of property rights,’ the right to exclude.” In fact, the Board has previously noted that rules requiring property owners to allow unwanted access on their property impinges a property owner’s right to exclude.

Prior Board Rulings on Contract Employee Section 7 Rights

In New York New York, the Board addressed the extent to which the off-duty employees of an onsite contractor who “regularly and exclusively” worked on the premise of the hotel and casino could distribute handbills. A majority of the Board found the contractor employees had access rights to the property because “it would be inappropriate to afford such employees diminished access rights merely because of the location of their workplace.” The exception to this general rule, according to the Board, is if “the property owner showed that employees’ Section 7 activity significantly interfered with its use of its property or whether an exclusion from the property was justified by another legitimate business reason, namely, the need to maintain production or discipline.”

A dissent argued that the Board failed to fully consider property owner rights. Similarly, in Simon DeBartolo, the Board applied New York New York to off-duty contract employees who worked regularly but not exclusively on the property owner’s property. The Board determined that the property owner could not exclude the off-duty employees from handing out their leaflets without first showing that the activity poses a risk of disruption.

NLRB Expands Employer Property Rights in Bexar County Case

In concluding that the Tobin Center lawfully excluded the contractor employees, the Board held that “contractor employees are not generally entitled to the same Section 7 access rights as property owner’s own employees.” Property owners may exclude off-duty contractor employees 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.

“Regularly” means the contractor regularly conducts business or performs services there and “exclusively” means they perform all their work for that contractor on the property, even if they also work a second job elsewhere for another employer.

In this case, the symphony employees did not work exclusively or regularly on Tobin Center property and had reasonable alternative, non-trespassory channels of speech (directly across the street and through mass and social media). The Board held the symphony employees’ connection with the Tobin Center was not exclusive where 79 percent of performances and rehearsals were held there and was not regular where the symphony only use the property to perform 22 weeks per year.

The Board cautioned that where the off-duty contractor employees do not have a reasonable alternative, non-trespassory means for reaching their audience, the property owner must afford them only the least intrusive means of access to its property.

The Board’s decision in Bexar County provides clear direction for employers wishing to prohibit property access to off-duty contractor employees in the future. Significantly, this new standard will apply to all new and pending cases.