NLRB Restores Property Access Rights to Employees of On-Site Contractors Seeking to Exercise Section 7 Rights

On Dec. 16, 2022, the National Labor Relations Board (NLRB) issued a decision announcing its return to the New York New York standard for balancing the property rights of owners against the rights of off-duty employees of contractors to engage in labor protests or other protected activities on site.

The decision overruled the Board’s much narrower rule on contractor employees’ property access in Bexar County I, which the D.C. Circuit Court of Appeals rejected as arbitrary. The Board’s return to the 2011 standard means that property owners may not exclude off-duty contractors from their property unless: (1) the activities “significantly interfere” with the owner’s use of the property; or (2) barring them from the property is justified by another “legitimate business reason” like maintaining production or discipline. The Board will apply this standard retroactively to all pending cases.

This decision recognizes the economic reality that an ever-larger share of workers is employed by contractors, rather than directly by a business or property owner. These workers have the same needs and rights to engage in off-duty union activity, hand-billing, or other protected activities as the employees of the owner. However, they are at a practical disadvantage in exercising those rights if they can lawfully be kicked off the property. The prior Bexar standard failed to accommodate these realities by strictly curtailing the types of contractors who had access rights to their job site at all. And even then, workers could be kicked off the property if there was a “reasonable alternative” means of communicating their message without “trespassing.”

The NLRB’s Dec. 16 decision acknowledges the reality that workers most effectively engage with their co-workers and members of the public at their regular job site. It also acknowledges that that property owners have more economic tools for legitimately controlling the uses of their property than simply excluding off-duty contractors. Restoring the New York New York balancing test gives contractor employees greater parity with other employees to fully exercise their workplace rights, while adequately accommodating property owners’ rights.

If you have a question about the rights of contractor employees in client workspaces, the experienced labor attorneys at Willig, Williams & Davidson are available to offer guidance to their clients on this issue.