The National Labor Relations Board (NLRB) must reconsider its newest ruling on the rights of certain employees to access private property to engage in activity on behalf of a union, the U.S. Court of Appeals for the District of Columbia has directed in an August 31, 2021, decision remanding NLRB v. Local 23, American Federation of Musicians. If the Board changes its holding on remand it will be the third time the rule on access to private property has changed in the last 10 years. This case comes to the NLRB at a time opportune for change.

The Court recognized that rights of access to private property to engage in union-related activities have traditionally depended on the connection of the person to the property. Traditional employees who work on the employer’s property have the greatest access rights and generally cannot be prohibited from engaging in union activity on the employer’s property during non-work time and in non-work areas of the property. On the other hand, a property owner can generally deny non-employees, such as union organizers, access to its premises.

Local 23 dealt with a third category: employees of a contractor who work on premises owned by a third party. Musicians represented by Local 23 were employed by the San Antonio Symphony, which had a contract to provide 22 weeks of performances at a facility owned by the Bexar Performing Arts Center Foundation, known as the Tobin Center. The musicians also performed for the Ballet San Antonio at the Tobin Center. To cut costs, the Ballet switched from live to recorded music, which reduced the number of paid performances for the musicians.

To protest the use of recorded music, the musicians distributed leaflets at the Tobin Center criticizing the Ballet and urging patrons to insist upon live music. The Tobin Center informed the leafleteers that they were not permitted on Center property and should move to the public sidewalk. They complied, but Local 23 filed an unfair labor practice charge.

The rule that existed at the time of the charge was filed was that a third party property owner could not deny access to contractor employees who are “regularly employed on the property” unless the property owner could establish that the activity substantially interfered with its use of the property. Applying that rule, and administrative law judge found the musicians had a right to engage in leafleting on Tobin Center property.

The NLRB reversed the judge. The Board held a property owner could exclude contractor employees from its property unless they work “regularly and exclusively on the property” and the property owner could not show they had “one or more reasonable alternative means to communicate their message.” Applying its new rule, the Board found the contractor musicians had no right of access.

Local 23 sought review at the Court of Appeals. The Court found the NLRB had acted arbitrarily in drafting its new rule. The terms “regularly” and “exclusively” were poorly defined – indeed, the NLRB’s examples were in conflict with the very words themselves. The Court remanded the case to the Board “to proceed with a version of the test it announced … or develop a new test altogether.”

The Board’s newly constituted Democrat majority and current General Counsel Jennifer Abruzzo have articulated a desire to expand access rights for unions and employees. Because the case has been remanded to a Board with a Democratic majority, we think the likelihood is that the Board will develop a new test which will expand the rights of employees to access private property for the purpose engage in union activity. Employers should stay tuned.