The National Labor Relations Board on Dec. 16 issued a decision restoring the rights of workers employed by a contractor to engage in protected concerted activity in their workplace.
The decision in Bexar County II overturns Bexar County I — which was sent back to the board for reconsideration by the DC Circuit Court of Appeals — and makes clear that a property owner may only exclude the employees of its contractors from engaging in protected activity on the worksite if such activity would significantly interfere with the use of the property or where exclusion is justified by another legitimate business reason. The decision reestablishes the standard originally articulated in New York New York Hotel & Casino in 2011.
The Board agreed with the circuit court’s concerns that the Bexar County I standard undermined contractor employees’ right to engage in protected concerted activity under Section 7 of the National Labor Relations Act without rational justification.
Section 7 of the National Labor Relations Act guarantees employees the “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”
Returning to the New York New York standard accommodates contractor employees’ rights under federal labor law with the property owner’s legitimate interests, according to the NLRB, and avoids creating incentives for employers to structure work relationships to avoid direct hiring.
“For contractor employees, the right to exercise their Section 7 rights at their workplace — where they interact with their coworkers and are most impacted by their employer’s decisions — is critical to making the protections of the Act a reality,” said NLRB Chairman Lauren McFerran. “Today’s decision ensures that contract employees’ rights are protected and respected in a manner appropriate to the nature of their employment.”