Off-Duty NLRA Section 7 Activities On the Table For Contractors

On 16 December 2022, the National Labor Relations Commission (the “Committee”) Bexar County II, This limits the right of a property owner to deny off-duty contract workers access to property for the purpose of engaging in activities protected by Section 7 of the National Labor Relations Act (the “Law”). Thing. Current board efforts to reverse Trump-era decisions and reinterpret the law to dramatically expand Article 7 rights for employees and weaken the right of property owners to control their property. In line, the Board overturned its own precedent for off-duty access for contract workers. reinstated the criteria first established in the 2011 decision New York New York Hotel & Casino Board decisions Bexar County II Clarifies that contract workers’ access to third-party property for Section 7 activities takes precedence over the property owner’s own interests in their property. [1]

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 that time, the board decided that the law was due to the removal from its property by its employer, the Bexar County Performing Arts Center, of a musician who had joined the San Antonio Symphony Orchestra for the sole purpose of protesting the Bexar County Performing Arts Center. concluded that it did not violate 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 stated that property owners should 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 the owners failed to demonstrate that they had “reasonable, non-infringing alternatives” to get their message across. Arbitrary and internally inconsistent.”

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 Bexar County Performing Arts Center violated law by prohibiting San Antonio Symphony employees from distributing leaflets on its premises. and criticized it 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 on which 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 .


[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).

©2022 Epstein Becker & Green, PC All rights reserved.National Law Review, Volume XII, No. 357

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