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NLRB Limits Employers’ Ability to Ban Protesters on Property Where Workers Regularly Work

December 19, 2022

The National Labor Relations Board recently limited the power of property owners to block union activity by workers for employers that operate on their property, replacing a 2019 decision lowering the bar to oust picketers.

In a 3-2 decision, the NLRB said that owners may only kick contractors' workers off their property when the workers' activities "significantly interfere" with the use of the property, or where the owner has "another legitimate business reason" to remove them.

The panel found the Bexar County Performing Arts Center violated federal labor law by barring workers for the San Antonio Symphony from leafleting on its property, reversing the board's 2019 ruling that workers must "regularly and exclusively" work on a property to be entitled to protest there.

"We have concluded, in balancing the competing rights and interests at stake, that the policies and purposes of the act would be best effectuated by abandoning the revised access standard adopted in Bexar County I," the majority said, invoking a D.C. Circuit decision criticizing the 2019 shift.

Last week’s ruling expands to their pre-2019 bounds the protest rights of workers whose employer does not own the property where they work, such as workers for mall tenants. The decision restores a standard set in a 2011 case called New York New York LLC, which concerned a protest by workers at a hotel restaurant owned by an outside operator.

In the case decided Friday, a group of unionized performers employed by the San Antonio Symphony protested a performance of Ballet San Antonio over its decision to utilize recorded music rather than live accompaniment. The performance took place at the Bexar County Performing Arts Center, which booted the musicians from the property.

In August 2019, an NLRB ruling cleared the arts center of claims that it stifled workers' protest rights, holding that the removal was within its rights as the owner of the property. The majority ditched the New York New York standard, holding that workers for contractors may only protest if they regularly work on a property, and the owner can't show the workers have a "reasonable nontrespassory" means to protest.

The American Federation of Musicians, which represents the performers, appealed the decision to the D.C. Circuit. A panel called the decision arbitrary and remanded the case in August 2021, holding that the board's approach to assessing the regularity of work was inconsistent, and that the alternative means prong of the revised test undercut workers' rights.

The majority agreed with the D.C. Circuit on Friday, saying the 2019 decision undermines off-duty contractor employees' rights to protest "for reasons completely unconnected to the employer's interest in protecting its property." The New York New York standard, which turns on a protest's impact, strikes the right balance between workers' and property owners' rights, the majority said.

"In the absence of that significant interference, or another legitimate business reason of the property owner, it ensures that off-duty contractor employees — like all other statutory employees — are able to realize the rights granted to them under Section 7 of the act," the majority said.

If you have questions about how this development may affect your organization, please contact Johnson & Bell Shareholders, Christopher J. Carlos or Caroline K. Vickrey or Associate Michael R. Sherer.

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