In a 3-2 decision, the National Labor Relations Board has reinstated its prior standard providing 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.

Part of a wave of decisions overturning Trump-era precedent (e.g., Labor Board Returns to ‘Overwhelming Community of Interest’ Standard for Bargaining Units), the Board’s latest ruling prohibits property owners from excluding from publicly accessible areas contract workers who wish to engage in organizing activity on the worksite, unless the activity “significantly interferes with the use of the property or where exclusion is justified by another legitimate reason.” Bexar County Performing Arts Center Foundation d/b/a Tobin Center, 372 NLRB 28 (Bexar II) (Dec. 16, 2022).

The facts are as follows. In 2019, a group of third-party contractor musicians were prohibited from distributing leafletting materials on publicly accessible areas of Tobin Center property. The Trump-era Board ruled that a property owner generally may prohibit off-duty employees of an on-site contractor from accessing private property to engage in activity protected by Section 7 activity of the National Labor Relations Act. The Board announced a two-step standard. Under the first step, only contractor employees who work both “regularly” and “exclusively” on the property are deemed to have a sufficient connection to the property to be afforded greater Section 7 access rights than nonemployees. However, under the second step, even if contractor employees work both regularly and exclusively on the property, the property owner is free to exclude them — even from areas open to the public — if it can show that the contractor employees “have one or more reasonable nontrespassory alternative means to communicate their message.”

Bexar II returns to the standard announced in the 2011 case, New York New York Hotel & Casino, 356 NLRB 907, under which a property owner may lawfully exclude from its property off-duty employees who regularly work on the property for an onsite contractor only where the property owner is able to demonstrate that the contractor employees’ Section 7 activity significantly interferes with the 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. Only under those limited circumstances can a property owner restrict a contract employees’ Section 7 right to engage in publicly accessible areas, according to the Board. The New York New York standard has been upheld by courts.

The Board’s decision in Bexar II applies to all pending cases.