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3-2 decision, in a closely followed employment law case, the National Labor Relations Board reinstated its prior 2011 standard, which applied a more expansive right of off-duty contractor employees to access publicly accessible areas of the primary employer’s workplace, for the purpose of engaging in organizing activity. The new decision overturns Bexar County I, 368 NLRB No. 46 (2019)

In this newest case, (Bexar County II) the San Antonio Symphony leases performance space from the Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts.

On the evening of February 17, 2017, about a dozen Symphony employees sought to peacefully leaflet on the sidewalk in front of the main entrance to the Tobin Center. The Symphony employees had been distressed to learn that Ballet San Antonio had opted to use recorded music, rather than live music, for its production of Tchaikovsky’s Sleeping Beauty. The use of recorded music denies the Symphony employees the opportunity to work at the performance by playing the score. Because of financial difficulties, the Symphony had already had to furlough the Symphony employees for 3 weeks during the 2016–2017 season.

To raise awareness among Ballet San Antonio’s patrons about the use of recorded instead of live music, the Union decided to leaflet before the performances.

Event staff and San Antonio police officers at the Respondent’s direction immediately informed the Symphony employees that they could not distribute the leaflets anywhere on the Respondent’s property, including the sidewalks. The Symphony employees were forced to relocate across the street off the Tobin Center grounds onto a public sidewalk where there were fewer patrons.

This reaction lead to litigation before the NLRB, and two decisions, Bexar I – and after remand from an appellate court –  Bexar II.

Congress passed the National Labor Relations Act in 1935, during the New Deal era. Under section 7 of the NLRA employees’ rights include more than just the right to form a union. The NLRA protects any concerted employee activity undertaken for mutual aid. Employee actions have to meet several standards to deserve protection.

At issue in both Bexar I and II is the application of section 7. An underlying problem central to these two cases is that Section 7 only confers rights directly to employees, not to unions or their nonemployee organizers. The off-duty employees who work for a contractor of a property owner do not fit neatly into these categories.They are neither employees of the property owner nor are they nonemployees with no relationship to the property owner’s property where they work.

Precedent for the problem in the Bexar cases dates back to 2011, when the Board in New York New York considered whether off-duty food service employees had the right to engage in organizational leafleting of customers outside their employer’s place of business – not on their employer’s property, but in the public areas of a hotel-casino for which they and their employer provided services integral to the property owner’s business. (New York New York Hotel & Casino, 356 NLRB 907 (2011)).

In Bexar County I, the Board acknowledged that the New York New York test – which had been approved by the D.C. Circuit – controlled this case. Nonetheless, the Board overruled New York New York and announced a new standard to govern off-duty contractor employees’ access to the property where they regularly work (but that is not owned by their employer) to engage in Section 7 activity.

On appeal of Bexar I, the D.C. Circuit held that the Board’s new access standard was arbitrary. The court permitted the Board on remand to “decide whether to proceed with a version of the test it announced and sought to apply in this case or to develop a new test altogether.

On remand the NLRB noted its “agreement with the D.C. Circuit’s conclusion that the Bexar County I standard it established “is arbitrary in the way that it implements its new standard.” Part of the Board’s task in devising an access standard for off-duty contractor employees is to ensure that it only reaches those contractor employees with a sufficient connection to the property to merit Section 7 access rights.

The NLRB concluded in Bexar County II, that it would return to the New York New York Hotel & Casino, 356 NLRB 907 standard, which held that a “property owner may lawfully exclude [off duty contractor] employees only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline (as those terms have come to be defined in the Board’s case law).

Applying the New York New York test here, the NRLB affirmed the judge’s finding that Bexar County violated Section 8(a)(1) by excluding the Symphony employees from the Respondent’s property to distribute union leaflets to the Respondent’s patrons about an issue affecting the Symphony employees’ terms and conditions of employment, specifically their number of hours of work. “They had a Section 7 right to inform the public about Ballet San Antonio’s use of recorded instead of live music, which directly affected the Symphony employees’ working conditions.”

“In order to protect contractor employees’ Section 7 rights, we believe that it is appropriate for us to apply the New York New York test to this case and to all pending cases.”