Skip to Content
Logo
Menu
  • About Our Firm
  • Practice Areas
  • Our People
  • Learning Library
  • Corporate Transparency Act
  • Contact
  • Make A Payment

The NLRB Provides Relief for Employers’ Property Rights

The NLRB Provides Relief for Employers’ Property Rights

October 22, 2019

Most of our clients are non-union and pay little attention to what the National Labor Relations Board (NLRB) does. Its recent ruling, however, is an important vindication of property rights for non-union and union employers alike.

Previous Standard

In 2011 the NLRB ruled that off-duty contractor employees may access an owner’s property to engage in protected concerted activity. This applied to non-union employers as well as union shops. Examples of protected concerted activities include distributing union materials, soliciting others to join a union, and more. The NLRB held that an employer could not prohibit these activities unless it could show that the activity would significantly interfere with the use of its property or its ability to maintain production or discipline. The fact that contractor employees had a legal right to access an employer’s private property came as a shock to most employers let alone non-union ones.

August 2019

In Bexar County Performing Arts Ctr. Found. d/b/a Tobin Ctr. for the Performing Arts, 368 NLRB No. 46 (Aug. 23, 2019), the NLRB determined that the previous standard did not properly balance a property owner’s rights with Section 7. Section 7 rights arise from the National Labor Relations Act and they are not limited to union shops. As a result, the NLRB ruled that “[p]roperty owners may exclude from its property off-duty contractor employees seeking access to the property to engage in Section 7 activity 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 non-trespassory alternative means to communicate their message.” This new shows the proper respect for private property rights.

In the Bexar case, the Tobin Center for Performing Arts (the Center) prevented off-duty musicians from passing out leaflets on the Center’s private sidewalks. The leaflets protested a resident ballet company’s decision not to use live music during its performances. The Center consistently enforced its rule prohibiting all solicitation on its property, including the sidewalks. The musicians attempting to pass out leaflets were not employees of the Tobin Center.

The NLRB found that because the Section 7 rights of the nonemployee musicians infringed on private property rights, the employer was entitled to exclude the non-employees.

Private Property Rights Prevail

In Bexar, the NLRB noted that property owners are afforded fundamental property rights derived from common law and protected by the 5th and 14th amendments of the United States Constitution. In prior cases, the NLRA held that off-duty employees of a contractor enjoyed essentially the same rights as employees of the property owner. Bexar changed that.

The NLRB in Bexar held that a property owner may exclude from its property off-duty contract employees who seek to engage in Section 7 activity unless those contractor employees work regularly on the property and they have no reasonable nontrespassory, alternative means to communicate their message.

Employer Takeaway

Section 7 of the NLRA impacts non-union employers in a variety of ways but many employers don’t realize this. The Bexar case is a welcome correction to a situation where employers were being legally forced to accommodate trespassers. Anytime employees gather together and want to discuss wages, hours, or terms and conditions of employment, an employer should be alert to the Section 7 implications regardless of whether that employer is unionized or not.

Related Attorneys

Clingen Callow & McLean, LLC
Lisle Office
2300 Cabot Drive, Suite 500
Lisle, Illinois, 60532
Phone 630.871.2600
Geneva Office
21 North 4th Street
Geneva, Illinois, 60134
Phone 630.938.4769
Fax 630.871.9869
General Inquires [email protected]
  • facebook
  • linkedin

Contact Us

©2025 Clingen Callow & McLean, LLC. All rights reserved.

Law Firm Web Design by NMC

Manage Consent
To provide the best experiences, we use technologies like cookies to store and/or access device information. Consenting to these technologies will allow us to process data such as browsing behavior or unique IDs on this site. Not consenting or withdrawing consent, may adversely affect certain features and functions.
Functional Always active
The technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or user, or for the sole purpose of carrying out the transmission of a communication over an electronic communications network.
Preferences
The technical storage or access is necessary for the legitimate purpose of storing preferences that are not requested by the subscriber or user.
Statistics
The technical storage or access that is used exclusively for statistical purposes. The technical storage or access that is used exclusively for anonymous statistical purposes. Without a subpoena, voluntary compliance on the part of your Internet Service Provider, or additional records from a third party, information stored or retrieved for this purpose alone cannot usually be used to identify you.
Marketing
The technical storage or access is required to create user profiles to send advertising, or to track the user on a website or across several websites for similar marketing purposes.
Manage options Manage services Manage {vendor_count} vendors Read more about these purposes
View preferences
{title} {title} {title}