{"id":602,"date":"2019-09-03T09:03:55","date_gmt":"2019-09-03T14:03:55","guid":{"rendered":"http:\/\/lindner-marsack.com\/news\/?p=602"},"modified":"2019-09-03T09:03:56","modified_gmt":"2019-09-03T14:03:56","slug":"nlrb-puts-new-limits-on-union-organizing-activities-on-private-property","status":"publish","type":"post","link":"https:\/\/lindner-marsack.com\/news\/nlrb-puts-new-limits-on-union-organizing-activities-on-private-property","title":{"rendered":"NLRB PUTS NEW LIMITS ON UNION ORGANIZING ACTIVITIES ON PRIVATE PROPERTY"},"content":{"rendered":"\n

In Bexar County Performing Arts Center Fdn. d\/b\/a Tobin Center for the\nPerforming Arts, <\/em>368 NLRB No. 46 (2019), the National Labor Relations Board\nhas limited prior decisions, which allowed the employees of a tenant to engage\nin union activities on the private property of their employer\u2019s landlord.  Whether or not the tenant\u2019s employees normally\nworked at the location or the general public was invited to that location, the\nlandlord\u2019s property rights could exclude the union activities of the tenant\u2019s\nworkers on the premises if they interfered with the property owner\u2019s\nbusiness.  The only exception would be\nsituations where the union had no \u201creasonable alternative\u201d communication option\nto reach its \u201ctarget [public] audience.\u201d <\/p>\n\n\n\n

Since the early 1940\u2019s, employees enjoyed the right to engage in organizational activities on their own employer\u2019s property in non-work areas during their off-duty time.\u00a0 The original cases involved speaking, distributing leaflets, and sometimes picketing in the employer\u2019s parking lots, lunch rooms, or locker rooms.\u00a0 However, these rights did not apply to non-employees such as outside organizers paid by the union.\u00a0 Unless the work location could not be reached without entering private property (for example, an isolated lumber camp), the non-employee was only allowed to deliver the union\u2019s message from the nearest public property, typically, a municipal sidewalk. \u00a0Lechmere, Inc. v. NLRB<\/em>, 502 U.S. 527, 537 (1992), quoting NLRB v. Babcock & Wilcox<\/em>, 351 U.S. 105, 112-113 (1956).\u00a0 <\/p>\n\n\n\n

With the advent of shopping centers, office parks, and other complexes where the public was invited to enter private property in order to reach the business site of an employer, courts held that non-employees could leaflet and otherwise campaign on that private property.\u00a0 Shopping centers and similar privately owned gathering places became the new \u201ctown square\u201d where all kinds of groups, including unions, could take their message to the public.\u00a0 This was especially the case when other methods of communication (newspapers, radio, etc.) could not reach the targeted workers.\u00a0 In 2011, the NLRB held that a union seeking to organize a restaurant which leased a second floor space at a Las Vegas casino could campaign where the aisle used by the general public intersected with the restaurant\u2019s entry.\u00a0 New York New York Hotel & Casino<\/em>, 356 NLRB 907 (2011), enf\u2019d. 676 F.3d 193 (D.C. Cir. 2014).\u00a0 The property was owned by a third-party landlord.\u00a0 The theory was that people were invited to use this area like a public sidewalk, so the union could not be banned as some kind of trespasser unless the landlord could prove the activity would prevent its use of the property.<\/p>\n\n\n\n

In a three to one decision this month, the NLRB held that the right to organize must be balanced with the property owner\u2019s rights to limit the activities of trespassers.\u00a0 In Bexar County Performing Arts Center<\/em>, supra<\/em>,musician-employees of the San Antonio Symphony were prohibited from leafleting the general public on the private walks surrounding the concert hall.\u00a0 The musicians were \u201ccontractor employees\u201d of the tenant symphony, not employees of the owner\/landlord.\u00a0 They only worked on the premises during rehearsals and performances 22 weeks of their 39 week season.\u00a0 Thus, they did not have the rights of employees of the property owner, but were non-employees who could be barred from the property like the non-employee union-paid organizers in Lechmere <\/em>and Babcock & Wilcox<\/em>; supra<\/em>.\u00a0 The Board said: <\/p>\n\n\n\n

\u201cOff-duty employees of a contractor [tenant]\nare trespassers and are entitled to access for Section 7 [union activity] purposes\nonly if the property owner cannot show that they have one or more reasonable\nalternative nontrespassory channels of communicating with their target [public]\naudience.\u201d<\/p>\n\n\n\n

The new balance requires consideration of the third-party landlord\u2019s right to limit access (and disruption) by a union or its members if they can use alternative media to present their otherwise lawful message. \u00a0They are not the landlord\u2019s employees; as non-employees they can be treated as trespassers and excluded from the private property to which the general public has access. <\/p>\n\n\n\n

Lindner & Marsack has represented employers in their dealings with unions for over a century.\u00a0 If you have any questions about this case or any other aspect of classic labor-management law, please feel free to contact us at any time.<\/p>\n","protected":false},"excerpt":{"rendered":"

In Bexar County Performing Arts Center Fdn. d\/b\/a Tobin Center for the Performing Arts, 368 NLRB No. 46 (2019), the National Labor Relations Board has limited prior decisions, which allowed the employees of a tenant to engage in union activities on the private property of their employer\u2019s landlord.  Whether or not the tenant\u2019s employees normally […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[6,13],"tags":[],"class_list":["post-602","post","type-post","status-publish","format-standard","hentry","category-nlrb","category-unionscollective-bargaining"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p5WrIF-9I","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts\/602","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/comments?post=602"}],"version-history":[{"count":1,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts\/602\/revisions"}],"predecessor-version":[{"id":603,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts\/602\/revisions\/603"}],"wp:attachment":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/media?parent=602"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/categories?post=602"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/tags?post=602"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}