D.C. Circuit Reverses Decision Barring Contract Workers from Leafleting Onsite

The U.S. Court of Appeals for the District of Columbia Circuit on Aug. 31 reversed a National Labor Relations Board (NLRB) ruling that had determined that businesses may prevent their contractors’ employees from distributing leaflets onsite. We’ve gathered articles on the news from SHRM Online and other outlets.

NLRB’s Decision

The reversed decision had allowed the staff of the Tobin Center for the Performing Arts in San Antonio to prevent employees of the San Antonio Symphony, which was a licensee of the center’s, from distributing leaflets on its property, including its sidewalks, before a performance by the San Antonio Ballet. Approximately a dozen members of the symphony protested the use of recorded music during the performance. They were forced to relocate from the Tobin grounds to public sidewalks across the street, where they passed out several hundred leaflets. The board held that a property owner may exclude from its property any off-duty contractor—or licensee—employees who attempt to engage in activity protected by the National Labor Relations Act, except in limited circumstances.

D.C. Circuit Ruling

In reversing, the D.C. Circuit said the NLRB arbitrarily excluded some workers but not others. The board had said nonemployees had a right to picket on private property only if they work there regularly and exclusively and lack other reasonable means of communicating with the public without trespassing. The appeals court said the NLRB had arbitrarily defined “regularity” in terms of frequency, meaning that some workers with a marginal presence on a property are protected while others with a substantial presence are not.


NLRB General Counsel’s Memo

Jennifer Abruzzo, the NLRB’s new general counsel, had targeted the NLRB decision in an agenda full of recommended changes for the board. The decision was one of three she highlighted. The other two included a ruling involving Boeing Co. that helped companies defend workplace rules and a decision that said workers can be barred from using company e-mail to engage in organizing.


Abruzzo’s Priorities

Abruzzo also listed 11 board case areas under the Trump board that she identified as “doctrinal shifts” away from previous board precedent. These include cases involving employer handbook rules, confidentiality provisions in separation agreements, defining the scope of protected concerted activity and union access. The memo also included additional subject areas Abruzzo would like NLRB staff to examine, such as cases involving Weingarten rights, employee status, mutual aid or protection, and the employer duty to recognize and bargain with unions. In the memo, Abruzzo expressed interest in examining cases involving the applicability of Weingarten principles in nonunionized settings.


Weingarten Rights

A unionized employee can request that a union representative be present during certain investigatory interviews. Employers and employees should know more about this entitlement, commonly referred to as “Weingarten rights,” including what constitutes a request, when the rights apply and the role of union representatives at the interviews.

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