The National Labor Relations Board Diminishes Private Property Rights. What Will It Mean?

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December 21, 2022
When is your property not entirely really your own? Well, the National Labor Relations Board (the Board) ended the week by giving an answer not many employers will like. On Friday, December 16, 2022, the Board issued a 3-2 opinion limiting a property owner’s ability to stop employees employed by contractors from protesting on the owner’s property.
 
In Bexar County Performing Arts Center Foundation, the Board majority held that a business owner may only remove a contractor’s workers from their property when the contract workers’ activity “significantly interfere[s]” with the use of the property or where the owner has “another legitimate business reason” to remove the workers. The Board found the Bexar County Performing Arts Center violated the National Labor Relations Act (NLRA) by barring off-duty contract workers from leafleting on the Performing Arts Center’s property.
 
This decision reverses a 2019 decision in which the Board first analyzed the facts of this case. (See Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts and Local 23, American Federation of Musicians, case number 16–CA–193636.) In 2019, the Board held that employers could bar non-employees from leafleting on their premises, even if the demonstrators worked for an on-site contractor. The key principle the Board upheld then was that employees of contractors were not generally entitled to the same access rights as are employees of the property owner. The 2019 rule provided an exception for contractors in instances when they worked “regularly and exclusively on the property” and did not have a more “reasonably non-trespassory” means for sharing their message. In such instances, non-employee contractors would still be able to access company property for protesting.
 
By contrast, Friday’s ruling brings back the standard set in 2011 in New York, New York Hotel and Casino. As discussed above, that means the property owner has to show significant interference with the use of the property or some independent reason for removing protesting contractor employees. This means it will not be easy to prevent contractors’ employees from protesting in many places that have no real connection to the home locations of their own employers.
 
We will continue to keep you informed as the effects of this decision unfold. For questions about this alert, please contact the authors or the Steptoe & Johnson Labor & Employment Team.