NLRB Drums out Musicians & ‘New York New York’

Patrick Scully

The National Labor Relations Board (“NLRB” or “Board”) has reversed one of the Obama Board’s most fiercely debated decisions and held that a property owner may lawfully prohibit the employees of a contractor or licensee from leafletting on its private property.

In February, 2017 San Antonio Symphony employees who were members of the American Federation of Musicians Local 23 attempted to leaflet on the private sidewalk of the Tobin Center in San Antonio.  The Union was protesting Ballet San Antonio’s use of recorded rather than live music for a performance of Sleeping Beauty.  The Symphony, Ballet, and Opera San Antonio all enjoyed use agreements at the Tobin Center and the Symphony employees frequently rehearsed and performed at the Auditorium.  The owner of the property prevented the Symphony employees from leafletting in front of the Tobin Center and directed them to the adjacent public property.

Although the majority recognized that the employees of a contractor or licensee have greater rights of access than nonemployees, it found that the Obama Board had incorrectly placed those rights above the owner’s property rights in New York New York Hotel & Casino, 356 NLRB 907 (2011).  Under the New York New York standard, contractor employees enjoyed access to private property equal to the property owner’s employees, unless the property owner could show that access would significantly interfere with the use of the property or could be restricted for another legitimate business reason (e.g. maintaining production or discipline).  The current NLRB found that access standard too permissive, “subject to an exception that has never been found to apply and predictably never would be found to apply.”  Accordingly, the Board re-set the standard, holding that a property owner can exclude the off-duty employees of a contractor from access for “Section 7” activity (e.g. leafletting) unless “those employees work both regularly and exclusively on the property and…the property owner fails to show that they have one or more reasonable alternative means to communicate their message.”   The NLRB majority asserted that this standard was more consistent with the U.S. Supreme Court’s decision in Lechmere Inc. v. NLRB, 502 U.S. 527 (1992).  Under this standard, the San Antonio Symphony employees were properly excluded. In dissent, Member McFerran criticized the majority’s reliance on Lechmere, claiming it did not control this type of case and asserted that the majority had created a standard under which an employer’s property rights will invariably prevail.

Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts, 368 NLRB No. 46 (August 23, 2019).