Property Lines: Where Employee Rights Meet Company Property Rights
The call usually comes with the sound of
panic. My client is upset that some of
its contractor’s employees are handing out leaflets to everyone onsite and
doing so within the property lines of the company. The contractor’s labor
dispute is not with my client but with their own employer. “Can you do anything
about it?”, I am asked.
As with many labor law questions, my answer often
depends on the current composition of the National Labor Relations Board.
Until recently, under the Obama Board, my
answer would depend on whether the company could show that the activity by the
non-employees onsite would undermine the ability of the company to control the
worksite and continue production. Needless to say, this was an exception that was very hard to meet. In fact, there is no Board case where this
exception was found to exist.
On Friday, the Trump Board established a new
standard: A company can now deny access
if it can show that (1) the third-party employees do not regularly and
exclusively work on the company’s property and (2) the third-party employees
have other means by which to communicate their message.
In the case where it announced this test, the
Board found that symphony employees who had been handing out leaflets at a
performing arts center did not work exclusively on the center’s property as
they only used the performing arts center for 22 weeks of the year for both
rehearsals and performances and otherwise rehearsed and performed in other
locations. The performance arts center
was also used by other arts groups. The Board also found that the symphony
workers could equally communicate by handing out their leaflets at a space
across the street from the performing arts center.
the Board’s new standard still leaves some questions that need to be addressed
in order to determine whether the standard has been met and therefore action
can be taken to enforce the company’s private property rights. What this all means is that if it appears
that any of your contractors may have a labor dispute with their employees, you
should start to consider these issues in case the third-party employees begin
to pass out leaflets on your company’s property. Knowing the answers ahead of time may avoid
some of the panic and allow the company to either take the appropriate legal
action or understand why it cannot.
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