By Tim Murphy
When enacted, The National Labor Relations Act (NLRA) sought to balance the rights of workers and management so workers, companies, and the country could prosper peacefully. That’s largely what followed the NLRA’s 1935 passage. But the NLRA did not eliminate all tensions between the rights of workers and management. Whether workers and their advocates can stage protests and other actions on company property is one example that has defied a permanent resolution. The rules in this area have swung back and forth as the composition of the NLRB has shifted.
The pendulum has swung again with the National Labor Relations Board’s recent efforts to give employers greater control over union activity on their property. In June, it ruled in UPMC Presbyterian Shadyside that employers can ban outside union organizers from public areas of their private property, overturning four decades of precedent in the process. And in May, the NLRB announced that it intends to use administrative rule-making to set standards for union activity on employer property.
The NLRB took a further step in that direction when it ruled in Bexar County Performing Arts Center Foundation—in a 3-1 vote last Friday—that property owners can bar labor protests by off-duty contractor workers unless they work “regularly and exclusively” on the property and there is no “reasonable nontrespassory alternative” for communicating their message. This ruling overturned Obama-era decisions and establishes a new employer-friendly test for when property owners can bar labor protests by employees of contractors.
The case involved a protest by union-represented musicians over a ballet company’s use of recorded music, rather than live music, during a performance of Tchaikovsky’s “Sleeping Beauty” at the Tobin Center in San Antonio. The musicians, who were employed by the symphony and not the ballet company, stood on a sidewalk near the auditorium’s entrance handing out leaflets urging the public to demand live music.
The NLRB ruled that the union musicians were legally prevented from protesting on auditorium property. In reaching that decision, the Board’s majority noted that the musicians only used the auditorium 22 weeks per year and that they could have leafleted on public property across from the auditorium or gotten their message out through social media or the press.
The sole Democrat on the NLRB, Lauren McFerran, wrote in dissent that the new test will strip “important labor-law rights from a significant segment of American workers who work on property owned by someone other than their employer . . . .”
These decisions are big wins for employers.