The National Labor Relations Board (“NLRB” or “Board”) capped off an extremely busy week, by issuing another precedent-reversing decision, on the last day of Republican Member John Ring’s 5-year term.  In Bexar County II, 372 NLRB No. 28, the Board revised the standard and thus limited the circumstances property owners can limit access to off-duty employees of an onsite contractor, overruling the standard adopted in Bexar County I, 368 NLRB No. 46 (2019) and returning to the test laid out by the NLRB more than 11 years ago, in New York, New York Hotel & Casino, 356 NLRB 907 (2011).

The case addresses whether property owners can lawfully bar non-employees from accessing their property to engage in protected union activity like leafletting, even if those non-employees work for an on-site contractor.  This new standard is far more favorable to a contractor’s employee’s rights to access the property, because, to limit access, the property owner must demonstrate that:

  • The protected activity “significantly interferes” with the owner’s use of their property; or
  • The exclusion is justified by another legitimate business reason (such as the need for the property owner to maintain production and discipline).

The Previous Standard Under Bexar County I

 In its 2019 decision, Bexar County I, the Board established a new standard that a property owner may lawfully prohibit the off-duty employees of its on-site contractors (or licensees) from accessing its property to engage in Section 7 activity unless (1) the off-duty employees regularly and exclusively work on the property, and (2) the property owner cannot show the off-duty employees do not have one or more reasonable non-trespassory alternatives for communicating their message.   This decision strengthened private property owner rights when it comes to non-employees and Section 7 rights.

According to the Board, “regularly” meant that the contractor employee regularly performed services or conducted business on the owner’s property, and “exclusively” meant if contractor employees performed all of their work for that contractor on the owner’s property, even if they had a separate employer/job elsewhere.

While on appeal, the D.C. Circuit Court found that the Bexar County I standard was inconsistent and arbitrary in how it was applied to the workers in this case (which we reported on here), and remanded the case to the current Board, which set the table for this Board to potentially announce a new version of the test.

A Return to the New York, New York Standard

Aligning itself with the D.C. Circuit opinion on appeal, the Board found that the Bexar County I test “essentially strip[s] off-duty contractor employees whose employer does not own the property where they work from having Section 7 rights at their workplace.” Rather than modify the Bexar County I standard, the Board decided to abandon it altogether because it “fundamentally fails” workers’ rights under the NLRA. Instead, and in accordance with the General Counsel’s request, the Board adopted the New York, New York test, enunciated above.

In balancing the countervailing interests of a property owner’s right to exclude individuals from its premises with contractor employees’ rights to exercise Section 7 activities under the Act at their work location, the Board held that the New York, New York test more clearly and sufficiently protects Section 7 activity and promotes the Act’s underlying purposes.

Critical to its decision, the Board explained that, although off-duty contractor’s employees do not fit neatly into the text of Section 7, they are not outsiders to the property and should be protected by the Act to engage in Section 7 activities at their workplace. According to the Board, the owner’s property might be the only place that the contractor employees can effectively reach a small, specific audience through which they would like their messages on working conditions shared.

Further, the Board went out of its way to state that property owners can still fully protect their property interests without excluding the off-duty contractor employees—for example, the contractor-employer could agree to use its employment authority to enforce the property owner’s rules, or the property owner could exercise its “legitimate managerial interests” in preventing improper interference with its property.

As is typical, the Board announced that the New York, New York test applies to this case and to all pending cases before the Board.

 Takeaways

 This decision clearly affords greater rights to off-duty contractor-employees seeking to engage in Section 7 activity at their workplaces.  Now, as it was prior to 2019, property owners have the burden of demonstrating the individuals’ conduct “significantly interferes” with the use of the property, or that legitimate business reasons (e.g., need to maintain operations, production or discipline) support the exclusion.

While the Board emphasized that the test endorsed in its Bexar II opinion does not eliminate property owners’ rights to exclude off-duty contractor employees, and instead, it places articulable limits on these rights that are easier for the Board and administrative law judges to apply than the Bexar County I test, the proof will ultimately be in how this standard will be applied.

As always, we will continue to monitor for updates.

 

 

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Photo of Steven Porzio Steven Porzio

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract…

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract negotiations, arbitrations, and representation and unfair labor practice cases before the National Labor Relations Board.

Steve has experience conducting vulnerability assessments and providing management training in union and litigation avoidance, leave management, wage and hour, and hiring and firing practices. He provides strategic and legal advice in certification and decertification elections, union organizing drives, corporate campaigns, picketing and union contract campaigns. Steve has represented employers in a number of different industries, including higher education, health care, construction and manufacturing in successful efforts against unions in election and corporate campaigns.

In addition to his traditional labor law work, Steve assists companies with handbook and personnel policy drafting and review, daily management of employee disciplines and terminations, and general advice and counsel on compliance with federal and state employment laws.

Steve’s litigation experience includes work on matters before state and federal courts, the Equal Employment Opportunity Commission, the Connecticut Commission on Human Rights and Opportunities, the New York State Division of Human Rights and various other administrative agencies. He has litigated matters involving age, race, national origin, gender and disability discrimination, wage and hour, whistleblower and wrongful termination claims.

While attending the Syracuse University College of Law, Steve served as the editor-in-chief of the Syracuse Science and Technology Law Reporter. He also received the Robert F. Koretz scholarship, awarded in recognition of excellence in the study of labor law.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Hannah Morris Hannah Morris

Hannah D. Morris is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

During her time at Proskauer, Hannah has assisted in litigation and investigation matters involving workplace harassment, discrimination, and retaliation. She also assists employers…

Hannah D. Morris is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

During her time at Proskauer, Hannah has assisted in litigation and investigation matters involving workplace harassment, discrimination, and retaliation. She also assists employers in counseling matters, such as drafting employment handbooks and researching workplace policies.

Hannah earned her J.D. from the University of Virginia School of Law. While in law school, she served as a Research Assistant for Professor Richard J. Bonnie working on matters related to juvenile justice. Additionally, she interned for the Office of the Public Defender for Arlington County and the City of Falls Church.

Prior to law school, Hannah was a Teach for America Corps member teaching Fourth Grade in Eastern North Carolina.