December 16, 2022
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The National Labor Relations Board (NLRB) has reversed course for the access standard for off-duty employees of an onsite contractor to engage in Section 7 activities in the workplace. The previous standard under Bexar County I allowed property owners to exclude the employees of an onsite contractor from the property for Section 7 activities if the property owner can demonstrate that the contractor employees “have one or more reasonable nontrespassory alternative means to communicate their message.” The Court of Appeals for the D.C. Circuit reviewed the standard in Local 23, American Federation of Musicians v. National Labor Relations Board and determined the NLRB arbitrarily implemented the standard for determining when a property owner could prohibit an onsite contractor’s employees from conducting labor organizing activity on the premises. The Court remanded the case to the NLRB to affirm the standard or develop a new test.
The NLRB chose to reinstate the union-favorable standard under New York New York Hotel & Casino which was in effect prior to the Bexar County I standard. The NLRB reasoned that a contractor employee’s position was more similar to employees of the property owner rather than nonemployee third parties like unions and nonemployee organizers. This means a property owner can only lawfully exclude off-duty employees who regularly work on the property for an onsite contractor who are seeking to engage in Section 7 activity if they are able to show the Section 7 activity significantly interferes with the use of the property or other legitimate business reasons like seeking to maintain production and discipline. Employers with onsite contractors should review their policies regarding access for employees of the onsite contractor and their ability to engage in off-duty Section 7 activity on the property.
- Review policies regarding access of company property by employees of onsite contractors.
- Train appropriate personnel on revised standard.
- Consult with legal counsel prior to responding to protected Section 7 activity.
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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase