NLRB Restricts Property Owner’s Ability to Bar Union Protests

In a 3-2 decision by the National Labor Relations Board (NLRB), the majority Democrat NLRB significantly limited the ability of companies to block union activity on their property by workers of other employers who do business on that property, reversing a 2019 decision by the then majority Republican Board.

In the case of Bexar County Performing Arts Center Foundation, unionized musicians employed by the San Antonio Symphony handed out pro-union leaflets outside a 2017 performance of Ballet San Antonio. The protest was over the ballet company’s decision to use recorded music instead of live musicians. The protestors were removed from the property.

In 2019, the Trump-era NLRB ruled that the Bexar County Performing Arts Center Foundation, which operated the venue, but did not employ the Symphony members, could lawfully bar the musicians from distributing the leaflets. The then Board held that a company was entitled to bar such union activity on their property unless the workers employed by others “regularly and exclusively” worked on the property and the property owner could not show that the workers had a “reasonable nontrespassory alternative” for communicating their union message.

However, that Board decision was later rejected by a federal appeals court, which remanded the case back to the now union-friendly NLRB.

In the new decision in favor of the protesting musicians, the Board held that property owners can bar off-duty contract workers from holding union protests only if such activity would significantly interfere with the use of the property, or when barring the workers is justified by another legitimate business reason.

This decision is seen as the latest effort to dial back the more employer-friendly decisions of the Trump-era Board.

Please contact Tommy Siler, Mark Fijman or any member of the Phelps Labor and Employment team if you have questions or need advice or guidance.