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NLRB Adopts New Standard For Property Owner’s Denial Of Access To Off-Duty Contractor Employees

Volume: 18 | Issue: 18
September 9, 2019

The National Labor Relations Board (NLRB or Board) recently found that a property owner had the right to prohibit off-duty employees of one of its licensees from accessing a sidewalk located on its private property to engage in informational leafleting to the general public. This important decision, in Bexar County Performing Arts Foundation resulted from the Board’s reversal of the decision in New York New York Hotel & Casino, (2011) where the Obama Board held that off-duty employees of an onsite contractor who worked in a restaurant on the hotel and casino’s property had the right to access the owner’s property to engage in activity protected by the National Labor Relations Act (NLRA).

The Trump Board, in Bexar, stressed that a property owner enjoys the right to control access to its property, which includes the right to restrict the hours during which it grants that access, the right to prohibit certain activities on its property, and the right to exclude others. For the property owner’s own employees, the Board has balanced the interests of employees to engage in NLRA-protected activity on the property with the employer’s right to control the use of its property. Here, the Board has crafted specific rules employers must follow to allow employees the right to solicit and distribute materials on company property.

But, the Bexar Board explained, nonemployees and off-duty employees of a licensee/contractor should be treated differently, and the Obama Board was wrong to grant off-duty contractor employees essentially the same rights as employees in the New York New York case. In Bexar, the Board declared a new standard. A property owner may exclude off-duty contractor employees seeking access to the property to engage in protected activity unless (i) those employees work both regularly and exclusively on the property and (ii) they have no other reasonable nontrespassory alternative way to communicate their message. Contractor employees work "regularly" on the owner’s property only if the contractor regularly conducts business or performs services there, and "exclusively," if the contractor employees perform all of their work for that contractor on the property.

In Bexar, the employees of the licensee, the San Antonio Symphony, were not entitled to access the owner’s property to engage in protected activity because the Symphony only used the property 22 weeks of the year and because the Symphony employees had reasonable alternative ways of communicating their concerns to the theater-going public by leafleting on public property directly across the street and by speaking to their target audience via mass and social media. Accordingly, the Board found that the property owner lawfully denied the Symphony’s employees access to its property.

This common-sense decision, which is true to fundamental, constitutional principles, is a huge victory for all property owners that permit another company’s employees to work on property. When those contractor and/or licensee employees are off-duty, the property owner can now more readily deny them access to the property even when they want to engage in activity protected by the NLRA. The property owner will want to carefully consider, however, the Board’s exceptions regarding regular and exclusive access and other reasonable alternative ways to communicate. Moreover, employers should note that nothing in the Bexar decision changes any rules or standards with regard to employees’ access to the employer’s property.

If you have questions about this area of the law or wish to discuss your solicitation and distribution policies, please contact a KZA attorney.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.