A National Labor Relations Board (“NLRB” or “Board’) decision that was once thought to be a significant win for employer property rights may ultimately result in increased property access for off-duty contractor employees, following a recent decision by the U.S. Court of Appeals for the D.C. Circuit.
In September 2019, the National Labor Relations Board (“NLRB” or “Board”) established a new test narrowing the circumstances when an employer must grant property access to its contractor’s employees to engage in union or other protected activities. This week, the D.C. Circuit held that the new test is “arbitrary” and remanded the case to the Board for further consideration. The D.C. Circuit’s decision is a blow to employer property rights. Perhaps worse for employers, the Board’s political majority shifted last week with the end of Republican Member William Emanuel’s term, signaling a possible death knell for one the Trump Board’s signature decisions expanding employer property rights.
In 2019, the Board the Board decided Bexar County Performing Arts Center (which we wrote about here) . The pertinent facts are straightforward. The county owns and operates the Tobin Center. The center hosted three separate contractor employers: a Symphony, a Ballet, and an Opera. In addition to their regular performances, Symphony employees often provided live music for the Ballet. But when the Ballet chose to use recorded music for a series of performances, off-duty Symphony employees leafletted Ballet patrons in an effort to have them encourage the Ballet to use live music. On several occasions, Tobin Center personnel expelled the off-duty Symphony employees and directed them across the street to a public sidewalk where the leafletting continued. The union representing the Symphony employees then filed an unfair labor practice charge.
The Board held that a property owner may exclude from its property off-duty contractor employees to engage in union or other protected activities unless (1) the employees work both “regularly” and “exclusively” on the property, and (2) the property owner cannot show that the employees have one or more “reasonable” non-trespassory alternative means to communicate their message. The D.C. Circuit found that both prongs of the test were arbitrary and remanded the case to the Board.
First, the D.C. Circuit addressed the regularity and exclusivity prong. The Board held that because the Symphony performed at Tobin Center for only 22 weeks per year, Symphony employees did not work at Tobin Center “regularly.” And because Symphony employees worked eight weeks per year at other locations, the Board similarly held that they did not work there “exclusively.”
The D.C. Circuit reasoned that the “regularity” aspect would result in a vending machine contractor employee who comes onsite once per week for an entire year to meet the test, while contractor employees who work six days per week at the facility for 22 weeks would not meet the test. Noting that Board seemingly meant “frequency” instead of “regularly,” the Board found such a result to be internally inconsistent and, therefore, arbitrary. As for “exclusivity,” the Board’s test would exclude a contractor employee who works virtually her entire workweek at the property owner’s property, but would permit access to a contractor employee who works on a fraction of her workweek for a contractor but all of which occurs on the property owner’s site. The D.C. Circuit reasoned that such a result was at odds with the Board’s stated logic for this first prong because it would fail to exclude workers with only a marginal presence while excluding others with a substantial presence.
The court also found the second prong of the Board’s new analysis to be arbitrary. The Board had held that the Tobin Center could exclude off-duty Symphony employees because they had other “reasonable” non-trespassory means to communicate their message, including through traditional and social media, as well as the public sidewalks near Tobin Center. The problem according to the D.C. Circuit? The Board allocated the burden of proof to the employer, but never required the Tobin Center to carry its burden of proof. The parties had neither developed a record before the administrative law judge (ALJ) regarding the reasonableness of alternative means, nor had they briefed the issue. Instead, the Board simply held that the factual record established reasonable alternative means, thereby displacing the burden of proof from the property owner. Accordingly, the D.C. Circuit found this prong of the test to be arbitrary, as well.
Put simply, the appeals court shot down the entire test. The court closed by noting that on remand “the Board may decide whether to proceed with a version of the test it announced and sought to apply in this case or develop a new test altogether.” With a new Democratic majority, the former is unlikely and the latter is worrisome for employers; indeed, it is possible (if not likely) that the Biden Board could expand the property access rights of off-duty contractor employees with such a “new test.”
We will keep you posted on that front, but a decision that once seemed like a significant victory for employers could turn into a vehicle for off-duty contractor employees to receive more expansive access to an employer’s property.