NLRB Expands Property Owners’ Rights to Deny Third Party Access


In Bexar County Performing Arts Center Foundation, the National Labor Relations Board, in a 3-1 decision, overruled existing precedent, and established a new framework to determine whether a property owner has lawfully prohibited employees of one of its licensees from accessing the property to engage in protected activity.

Existing Standard: In New York, New York Hotel & Casino, the Obama Board held that employees of an onsite contractor who worked regularly and exclusively at a restaurant on the property were permitted to engage in Section 7 activity unless the property owner established that the activity would “significantly interfere” with the use of its property or could be restricted for another legitimate business reason.  In Simon DeBartolo Group, the Obama Board expanded its New York, New York holding, and required that a property owner permit access to an off-duty contractor employee even though they did not work “exclusively” on the owner’s property.

Background: The Bexar County Performing Arts Center Foundation (BCPAF) operates the Tobin Center in San Antonio, Texas. The Tobin Center has three primary tenants: the San Antonio Symphony (the Symphony), Ballet San Antonio (the Ballet), and Opera San Antonio. The Symphony regularly provides musicians to perform live music during the Ballet’s performances at the Tobin Center. On one occasion, however, the Ballet used recorded music for its performance. Symphony employees, who are represented by a union, distributed handbills to the Ballet’s patrons to encourage them to support the use of live music at the Ballet’s performances. The handbilling occurred on a sidewalk directly in front of the Tobin Center, and on property owned by BCPAF.  BCPAF, which maintained and consistently enforced its no-solicitation policy, instructed police to remove Symphony employees and sympathizers who were handbilling on its property.

The Board’s Ruling: The Board held that the employer may exclude off-duty employees of one of its licensees from using its property to engage in Section 7 activity unless (1) those employees work both “regularly” and “exclusively” on the property, and (2) the property owner cannot show that the licensee’s employees have at least one reasonably non-trespassory means to communicate their message. Thus, the Board reinstated the “exclusivity” requirement that had been eliminated in Simon DeBartolo Group, and will no longer require a property owner to show “significant interference” or a legitimate business reason before excluding off-duty employees of its licensees.

Here, the Board found Symphony musicians used the Tobin Center only 22 weeks per year, and thus did not work “regularly” at the Tobin Center. Additionally, because the Symphony performed 20% percent of their rehearsals and shows at venues other than the Tobin Center, Symphony musicians did not work “exclusively” at the Tobin Center. As to the second prong, the Board concluded that Symphony musicians had reasonable, nontrespassory alternative means to communicate their message. For example, the musicians could handbill on a public sidewalk across the street from the Tobin Center, or reach its audience through social media. Thus, the Board held that BCPAF did not violate Section 8(a)(1) of the NLRA by removing off-duty Symphony musicians handbilling on its private property.

Takeaway: As in UPMC, a case that we discussed here, this Board continues expanding employer property rights. Here, property owners that allow a licensee’s employees to work on their property may properly prohibit these off-duty employees from using their property to engage in Section 7 activities, absent “regular” and “exclusive” employment on the property, as well as a complete absence of nontrespassory alternative means to communicate their message.