It’s not often you can say that musicians and ballerinas helped clarify the rules around access to a job-site or workplace. But, it happened earlier this month.  The National Labor Relations Board (“NLRB”) recently clarified that a property owner could exclude off-duty contractor employees from handing out leaflets on its property unless the off-duty employees worked regularly and exclusively on the property and there was no other reasonable alternative means of communicating their message.  You can read the Bexar County Performing Arts Center case here.

This case was a result of the Ballet San Antonio’s decision to use pre-recorded music for its performances and rehearsals.  Apparently upset with this decision, members of the Local 23, American Federation of Musicians, who played for the San Antonio Sympathy, decided to hand out leaflets on the Tobin Center for Performing Arts property complaining about that decision.  The center’s security staff and local police told the musicians that they could not hand out leaflets on Tobin’s property and escorted the union members across the street.

The union sued, claiming that their section 7 rights had been violated when they were removed from the property.  The administrative law judge ruled in the musicians’ favor, but the NLRB reversed the decision and overruled two prior Obama era NLRB decisions.  The NLRB held that a property owner may exclude off-duty contractor employees from engaging in Section 7 activity on their property, unless:

(i) those employees work both regularly and exclusively on the property and (ii) the property owner fails to show that they have one or more reasonable nontrespassory alternative means to communicate their message.

This ruling is equally applicable to contractors on the job-site. If the individuals seeking to hand out leaflets are not regularly and exclusively working on the job site, they cannot hand out leaflets.  And, if the individuals are regularly and exclusively employed on the job site, they can be provided another “nontrespassory alternative” to communicate their message.

Take Away: It is important to know your rights when a union tries to do its song and dance on your job-site.  As always, speak to an experienced construction attorney about your options so that you don’t hit a sour note when responding to union activities.  (sorry, I couldn’t resist)