Published
September 30, 2021
The U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) last month overturned a 2019 decision by the erstwhile Republican majority at the National Labor Relations Board (NLRB) dealing with the circumstances under which employers may exclude individuals from their private property. The decision remands the issue to the NLRB—now run by a Democratic majority—and opens the door for a policy reversal that will hamstring employers.
The question of employers’ private property rights dates to the passage of the National Labor Relations Act (NLRA) itself in 1935. Section 7 of the NLRA guarantees “the right to self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Whereas an employer generally has the right to exclude individuals from its premises—just as any other property owner does—the protections under Section 7 can conflict with that right. The NLRB and federal courts have struggled for decades about how to handle such conflicts.
As a general rule, Section 7 limits an employer’s ability to restrict its own employees from engaging in labor-related activities during non-work hours and in non-work areas of its property. On the other hand, employers have greater flexibility to exclude non-employees even if they are engaging in labor organizing activities. Excluding non-employees who work for a contractor on an employer’s premises presents a third scenario that the NLRB’s 2019 decision addressed.
The case involved leafleting by contract musicians on the grounds of the Tobin Center in San Antonio, TX, where they routinely, but not exclusively, played for the city’s symphony, which was their employer and one of three principal tenants of the Tobin Center. The musicians engaged in informational leafleting at the center to protest the use of recorded music by Ballet San Antonio, one of the other major tenants. Staff from the Tobin Center informed the musicians that they could not leaflet on its grounds, which prompted an unfair labor practice charge.
An administrative law judge sided with the musicians under precedent set by New York New York, a 2011 NLRB decision holding that a property owner may lawfully exclude employees of a contractor who usually work on the premises “only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason.”
In its 2019 Bexar Co. (Tobin Center) ruling, the Board criticized the New York, New York decision for contravening “several guiding principles … as to the Section 7 rights of nonemployees of the property owner—i.e., off-duty employees of an onsite contractor.” Under Bexar, “a property owner may exclude from its property off-duty contractor employees seeking access to the property to engage in Section 7 activity 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 [sic] alternative means to communicate their message.”
On appeal to the D.C. Circuit, the musicians’ union challenged the NLRB’s dismissal of its complaint. Siding with the union, the court dissected various elements of the Bexarstandard and concluded, “the Board's decision is arbitrary in the way that it implements its new standard for determining when a property owner may prohibit an onsite contractor's employees from conducting labor organizing activity on the premises.” With the current NLRB majority of like mind, the seemingly inevitable result will be the adoption of a standard that once again will restrict employers’ ability to limit unwarranted labor activity on their private property.
About the authors
Sean P. Redmond
Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.
