NLRB Ruling Ensures Off-Duty Contractors Can Organize at Worksite

Leah Shepherd By Leah Shepherd January 3, 2023

​The National Labor Relations Board recently ruled that off-duty contractors can participate in union activities at the workplace.

The board's Dec. 16 decision overturns a 2019 decision and re-establishes a 2011 standard. It concludes that a property owner may exclude the employees of its contractors from engaging in protected activity at the worksite only if such activity would significantly interfere with the use of the property, or where exclusion is justified by another legitimate business reason. 

The case involved the San Antonio Symphony, which leases performance space from the Tobin Center for the Performing Arts, which is owned and operated by the Bexar County Performing Arts Center Foundation. During the performance season, symphony employees use the Tobin Center's break room for breaks, lunches and union meetings.

On Feb. 17, 2017, about a dozen symphony employees who were union members sought to peacefully leaflet on the sidewalk in front of the main entrance to the Tobin Center. They were protesting Ballet San Antonio's decision to use recorded music, rather than live music, for its production of Tchaikovsky's "Sleeping Beauty." Event staff and San Antonio police officers immediately informed the symphony employees that they could not distribute leaflets anywhere on the property, including the sidewalks.

"For contractor employees, the right to exercise their Section 7 rights at their workplace—where they interact with their co-workers and are most impacted by their employer's decisions—is critical to making the protections of the [National Labor Relations Act (NLRA)] a reality," said NLRB Chairman Lauren McFerran. The decision "ensures that contract employees' rights are protected and respected in a manner appropriate to the nature of their employment."

We gathered a group of articles on the news from SHRM Online and other trusted news sources.

Barred from Property

The case addresses whether property owners can lawfully bar nonemployees from accessing their property to engage in protected union activity like leafletting, even if those nonemployees work for an onsite contractor. This new standard is far more favorable to a contract employee's right to access the property. The recent NLRB decision aims to balance the countervailing interests of a property owner's right to exclude individuals from its premises with a contractor's right to conduct protected activities at the work location. The new standard does not eliminate a property owner's right to exclude off-duty contractors, but instead places certain limits on this right.

(The National Law Review)

Earlier Rule

A 2019 NLRB ruling barred many workers from engaging in union organizing and picketing on private property where they work that is not owned by their employer. With its recent ruling, the NLRB said the 2019 ruling essentially made it impossible for many workers to engage in activity protected by federal labor law. Many contract employees work and interact with co-workers exclusively on other companies' property.


Concerted Activities

Section 7 of the NLRA establishes the right of employees to engage in concerted activities for their mutual aid or protection. Concerted activity includes individual employees encouraging group action with co-workers, like forming a union and bargaining collectively for wages and benefits. An employer cannot discharge, discipline, threaten or coercively question an employee about such an activity. Individual griping does not qualify as concerted activity.

(SHRM Online)

Right to Organize

Nonsupervisory union and nonunion employees have the right to act together to improve wages and other terms and conditions of employment and to communicate among themselves and with others to do so. This also applies to communication occurring through e-mails, blogs and social media.

Under the NLRA, it's an unfair labor practice for an employer to "interfere with, restrain or coerce employees" who are exercising those rights. In recent years, the NLRB undertook an outreach and enforcement initiative to help make all employees aware of their right to engage in protected activity to improve pay and other working conditions or to fix job-related problems.

(SHRM Online)

NLRA Doesn't Apply to All

The NLRA applies to employees in most private-sector workplaces, including manufacturing plants, retail centers, private universities and health care facilities. Agricultural workers, domestic workers and supervisors are not covered. Employers cannot prohibit employee use of company premises or resources, such as e-mail and bulletin boards, for protected activities concerning employee wages, benefits or work conditions while simultaneously permitting employees to use company premises or resources to solicit charitable contributions or engage in fundraising.

(SHRM Online)



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