No Organizing Beyond This Point: NLRB Rules Property Rights Outweigh Worker’s Rights in Recent Decisions

On Friday, September 6, 2019, the National Labor Relations Board (NLRB) issued yet another in a series of decisions rolling back the rights of contract workers and non-employee organizers on employer-owned property.

In Kroger Mid-Atlantic, which issued on September 6, 2019, the Board overruled twenty years of precedent when it announced that an employer may ban non-employee union organizers who engage in organizational or protest activities, even if it allows nonemployees to access its property for a wide range charitable, civic, and commercial activities, so long as it bars comparable organizational or protest activities by other groups. For example, the Board indicated that an employer would commit an unfair labor practice if it allowed fraternal or religious organizations to solicit membership on its property but did not permit union organizing activity in the same locations. Previously the Board found such exclusionary policies unlawful where they allowed a broad range of civic, commercial, and charitable activities but discriminated against union organizing and protests. It remains to be seen how fine a distinction the Board will allow employers to draw when barring union organizing and protest activity, on the one hand, while allowing similar non-union-related activities, on the other.

In Bexar County Performing Arts Center Foundation d/b/a Tobin Center, which issued on August 23, 2019, the NLRB held that a property owner may exclude off-duty employees of an onsite contractor or licensee who enter its property to engage in Section 7 activities unless (i) the contractor/licensee employees work regularly and exclusively on the property, and (ii) the property owner fails to show that the contractor/licensee employees have one or more reasonable non-trespassory alternative means to communicate their message. Previously, off-duty employees of an onsite contractor who worked regularly on the property had the right to enter it to engage in Section 7 activity unless the property owner could show that such activity would significantly interfere with the use of its property or could be restricted for another legitimate business reason, including the need to maintain production or discipline. In practical terms, the Board’s new rule permitted a concert venue to expel members of a symphony orchestra from a privately-owned sidewalk where they were leafletting against a ballet company’s use of recorded music. In so ruling, the Board noted that the symphony performed at the venue only 22 weeks out of the year, that the orchestra musicians did not work exclusively for the symphony, and that the leafletting workers had access to a public sidewalk across the street from the concert hall.

These two decisions reflect the Board’s renewed emphasis on employer property rights, which was also apparent in the Board’s decision earlier this year in UPMC, in which it held that a hospital could lawfully eject non-employee union organizers from a cafeteria that was located inside the facility but was open to the public. Given this recent trend, it is safe to say the Board is re-drawing the boundaries in favor of employer property rights. Unions and workers will have to be mindful of these new restrictions and the consequential risks of law enforcement involvement or, potentially, legal action in response to organizing and related activities.