Arts Center Legally Blocked Contract Workers from Leafleting on Its Site

 

Allen Smith, J.D. By Allen Smith, J.D. September 5, 2019
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​Businesses can rely on a recent National Labor Relations Board (NLRB) decision to prevent their contractors from distributing union leaflets on company property. But employers' own employees still must be allowed to distribute leaflets onsite in some instances.

The staff of the Tobin Center for the Performing Arts in San Antonio prevented employees of the San Antonio Symphony, which was a licensee of the center's, from passing out leaflets on its property, including its sidewalks, before a performance by the San Antonio Ballet.

Approximately a dozen members of the symphony protested the use of recorded music during the performance. They were forced to relocate from the Tobin Center grounds to public sidewalks across the street, where they distributed several hundred leaflets.

The protesters challenged the Tobin Center for stopping them from handing out leaflets on the center's property. An administrative law judge ruled in their favor, relying on a 2011 NLRB decision that permitted the employees of a contractor for a business to distribute union literature on the business's property.

When the case reached the NLRB, the board reversed the administrative law judge's decision and overruled the 2011 decision. The board held that a property owner may exclude from its property any off-duty contractor—or licensee—employees who attempt to engage in activity protected by the National Labor Relations Act (NLRA) unless:

  • Those employees work regularly and exclusively on the property.
  • The property owner fails to show that the contractor employees have one or more reasonable alternative means to communicate their message.

The symphony, which belongs to a collective bargaining agreement with the American Federation of Musicians Local 23, did not regularly conduct business or perform services at the center, the NLRB concluded. The board noted that it used the property for performances and rehearsals only 22 weeks of the year.

In addition, the symphony employees had alternatives for communicating their concerns—mass and social media, the board determined. Consequently, the board ruled for the center.

Dissenting board member Lauren McFerran observed that the sidewalks owned by the center were always open to the public. She emphasized that the police helped remove the musicians from the center's sidewalks and said the musicians did nothing that should subject them to such treatment.

"As in other recent decisions, the result here is, again, to dramatically scale back labor-law rights for a large segment of American workers—this time, employees who work regularly on property that does not belong to their employer," she stated.

However, the board noted that when the protestors were moved off the center's premises, they simply moved to the public sidewalks across the street. "This is not, in our view, a drastic restriction" on NLRA rights, the board stated. It added that the use of print and online media might be more effective than a single day of leafleting.

Michael Lotito, an attorney with Littler in San Francisco, said, "I would not call leafleting passé, as it affords the parties the opportunity to chat about an issue, secure better understanding and have time for question and answer."

Social media is more of a supplement than a replacement for leafleting, said David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis.

[SHRM members-only toolkit: Complying with U.S. Labor Relations Laws in Nonunion Settings]

Employees' Right to Leaflet

While nonemployees' right to leaflet was restricted by the recent ruling, the decision is limited because it applies only to property owners and landlords that have no employer-employee relationship with the individuals who are leafleting, explained Mark Kisicki, an attorney with Ogletree Deakins in Phoenix.

If the property owner or landlord is the employer of the individuals handing out leaflets, the employees have the right under the NLRA to leaflet to a certain extent. Off-duty employees may leaflet if the employer has not adopted and consistently enforced rules that preclude off-duty employees from engaging in leafleting, he said. Employees who are on duty have a right to leaflet, at a minimum, in nonwork areas during nonwork times.

Defending Property Rights

In order to restrict leafleting by off-duty employees, Kisicki said employers must:

  • Have a rule that limits off-duty employees' access to the property and disseminate the rule to all employees.
  • Limit off-duty employee access to interior spaces and work areas but not restrict access to public areas and external, nonwork areas, such as parking lots.
  • Consistently enforce the rule—not simply enforce it for the first time when off-duty employees engage in union organizing or other activities protected by the NLRA.

"The property lines must be clearly understood by the enforcers of the rule," Lotito said. "Often what is and what is not company property is not well-understood."

The NLRB's ruling is a good reminder that employers should draft and implement a no solicitation/no distribution policy that defines when and where activities such as leafleting can occur, Pryzbylski observed.

"In our complicated economy where an employer may rely on suppliers, vendors and other companies, the existence of these relationships—and the occasional presence on the employer's property of people who work for other companies—does not eliminate the employer's property rights, including the right to control property access and activities engaged in by vendor or supplier employees," said Philip Miscimarra, an attorney with Morgan Lewis in Washington, D.C.

Miscimarra, a former chairman of the NLRB, cautioned that employees of these other businesses will be treated like employees of a property owner if:

  • The employees work both regularly and exclusively on the property.
  • Being present on the property is the only reasonable means to communicate the employees' message.

This decision is Bexar County Performing Arts Center Foundation d/b/a/ Tobin Center for the Performing Arts and Local 23, American Federation of Musicians, 368 NLRB 46.

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