On December 16, 2022, the National Labor Relations Board issued a decision in the case of Bexar County Performing Arts Center which restricts the right of property owners to restrict the right of employees who work on the property to engage in protest activity that is protected by the federal labor laws. The Board held in that case that a San Antonio, Texas performing arts venue did not have the right to evict employees of a symphony who distributed leaflets at the site protesting its decision to use recorded music instead of live musicians for a production of a classical music production, which stated that the patrons paid for and deserved to “DEMAND LIVE MUSIC!” The site owner had prohibited the symphony’s employees from distributing leaflets anywhere on its property.
The Board had previously held that employees could be barred from a property in such circumstances only if they “regularly work on the property” and did not have a “reasonable nontrespassory” means to protest. In Bexar County, the Board returned to a previous standard by holding that the exclusion of such employees is justified only when the protest activity of a third-party contractor’s employees “significantly interferes with the use of the property” or is justified by another legitimate business reason, including the need to maintain production and discipline. The Board accordingly ordered the arts center to cease and desist from prohibiting symphony employees from leafleting in nonworking areas open to...
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