NLRB Opens the Door for Contract Workers to Engage in Off-Duty Section 7 Activities Wherever They Work | Epstein Becker & Green

Before Bexar County I Framework

In 2019, the Trump-appointed Republican-majority Board of Governors Bexar County Performing Arts Center Foundationknown as Bexar County I. [2] At the time, the committee found that their employer, the Bexar County Performing Arts Center, had dismissed unionized musicians from the San Antonio Symphony Orchestra when they were there only to protest against the Bexar County Performing Arts Center. It concluded that it did not violate the law by banishing it from its property. Instead of contracting these musicians to play live music, we use recorded music. The board stressed the right of property owners to prohibit certain activities on their property, and said that property owners could not be contract workers unless the workers were working “regularly and exclusively on their property.” may be prohibited from accessing its property for the purpose of engaging in Section 7 activities. And owners failed to show they had “reasonable, non-infringing alternatives” to get their message across. It dismissed the ruling as “arbitrary and internally contradictory” and remanded it to the Board.

Impact of Bexar County II decision

On remand, in a 3-2 decision now dominated by a Biden-appointed majority, the Board concluded: Bexar County II The Bexar County Performing Arts Center claimed it violated the law by prohibiting San Antonio Symphony employees from distributing leaflets on its property. In its ruling, the new board rejected the previous board’s standards, criticizing them as “depriving.”[ing] An off-duty contractor employee whose employer does not own the property. . . [of their] The right to “appeal for reasons completely unrelated to the employer’s interest in protecting its property.”

Instead, prioritizing workers’ Article 7 rights over owners’ property rights, the Commission reinstated the framework first clarified in a 2011 Commission decision. new york, new york. of new york, new yorkthe board ruled that handbilling contract workers in the public areas of a property owner’s hotel casino is permissible on the grounds that it “does not interfere with operations or discipline.” [nor] adversely affect the ability of customers to enter, exit or fully use the premises; .

From now on, property owners will only report to the Commission if a Section 7 activity “materially interferes” with the use of the property or if the owner has “another legitimate business reason” to dismiss a contract worker. contract workers can be excluded from real estate based on new standards announced by The Board noted that legitimate business reasons include, but are not limited to, the need to maintain production and discipline.employee friendly new york, new york This revived standard focuses on the impact of activities while ignoring the rights and interests of property owners.

To offset the blow to the rights of property owners, the Board will require property owners to negotiate contract terms with contractors to ensure that contractor employees engage in off-duty Section 7 activities. decided that it could require the contractor to intervene expeditiously. The board also states that property owners can direct contractor managers and supervisors to take action, and that property owners can exercise their “rights of management” to enforce their property rights. However, property owners should refrain from directing contractor employees in this manner. Establish a co-employer relationship.

Members Kaplan and Ring disagreed, criticizing the majority for not striking a proper balance of alignment between competing Section 7 and property rights at stake.


of Bexar County II This ruling expands the ability of contract workers to engage in Section 7 activities on land where they work, even if the actual employer does not own that land. Property owners and/or employers should review contracts with contractors to ensure that contractors are responsible for preventing employees from causing disruption at property owner/employer locations .

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[1] New York New York Hotel & Casino356 NLRB 907 (2011), end676 F.3d 193 (DC Cir. 2012), certificate.rejected 568 US 1244 (2013)

[2] 368 NLRB No. 46 (2019).

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