In recent years, the NLRB has been rolling back past decisions that reduced employers’ property rights and granted individuals’ access to an employer’s property to engage in union activity. In Bexar County Performing Arts Center Foundation, 368 NLRB 46 (Aug. 23, 2019), the NLRB took another step in that direction. Bexar follows on the heels of UPMC, 368 NLRB No. 2 (June 14, 2019), where the NLRB limited unions’ right to access “public spaces” (e.g., public cafeterias or restaurants) for the purpose of engaging in promotional or organizational activity. In Bexar, the NLRB overturned Obama-era rule dealing with the issue of when an employer must allow off-duty employees of one of its onsite contractors access to its property to protest certain actions by the employer. Bexar involved off-duty employees of the San Antonio Symphony who wanted to hand out leaflets in front of a performing arts center, the Tobin Center, protesting the Symphony’s use of recorded music during a ballet performance. The Tobin Center’s president learned of the Symphony’s employees’ plan to leaflet and instructed staff not to permit anyone to hand out leaflets, promote, or solicit on the property.
After an unfair labor practice charge was filed, the decision made its way to the full NLRB, and the NLRB decided to overrule its prior decision and significantly limit the situations when an employer must grant access to the employees of its onsite contractor. The Board held that an employer does not need to give those employees access unless (1) they work both regularly and exclusively on the property and (2) the property owner fails to show that they have one or more reasonable non-trespassory alternative means to communicate their message. Applying this standard, the NLRB founder the Tobin Center’s actions were lawful because the Symphony did not regularly use the Tobin Center, using it only 22 weeks out of the year. The NLRB also found that the Symphony employees had alternative means to communicate their message. The employees could hand out leaflets on a public sidewalk across the street and communicate to the public via social media.
Given the pervasiveness of social media and the NLRB’s statement that the employees need only have at least one alternative method of communicating their message, it will be interesting to see how the NLRB might apply this standard in future cases where the employees are not able to physically leaflet at a nearby alternative location. Will the availability of social media always be a sufficient alternative method of communication? Readers should stay tuned, but in the meantime, Bexar is a clear signal that the NLRB remains interesting in expanding property owners’ rights to control access and use of their property.