(NLRB) Trump-era test for determining when a property owner may exclude a contractor’s off-duty employees from its premises. Local 23, Am. Fed’n of Musicians v. N.L.R.B., No. 20-1010, 2021 WL 3869824 (D.C. Cir. Aug. 31, 2021).

On Aug. 31, the United States Court of Appeals for the District of Columbia Circuit rejected the National Labor Relations Board’s

In its prior decision in the case, the board (which was composed of a Republican majority at the time) held that the Tobin Center lawfully blocked symphony musicians from gathering in front of its building to protest a ballet company’s use of recorded rather than live symphonic music. The musicians involved in the protest were employed by the San Antonio Symphony and not by the Tobin Center itself. They performed at the Tobin Center approximately 22 weeks each year, however, based on a contract between the Tobin Center and the San Antonio Symphony.

In reaching its decision, the Trump board lifted the curtain on a new standard (the Tobin Center standard) under which a property owner had the right to exclude a contractor’s off-duty employees from its premises unless (i) those employees “regularly and exclusively” worked on the property and (ii) the property owner failed to show that the contractor’s employees had other, non-trespassory alternatives available to communicate their message. That standard replaced a prior, Obama-era standard under which a property owner could exclude a contractor’s off-duty employees only if the property owner could show that the employees’ activity “significantly interfere[d] with [the property owner’s] use of the property” or that the “exclusion [was] justified by another legitimate business reason.”

On appeal, a unanimous D.C. Circuit panel found that the “regularly and exclusively” prong of the board’s Tobin Center standard was arbitrary and internally inconsistent. The appellate court specifically criticized the board’s observation that while a contractor that stocked vending machines once each week at the property would satisfy the “regularity” element of the test, symphony musicians who worked 22 weeks each year at the facility did not. The court also took issue with the “exclusivity” element of the Tobin Center standard, finding that it would bar a contractor’s off-duty employees from accessing the property simply because they performed limited work elsewhere. Continuing to tap dance on the NLRB’s blue suede shoes, the appellate court further held that the board misapplied the “non-trespassory alternative” prong of its Tobin Center standard by failing to require the property owner to identify any such alternatives that the musicians had available to communicate their message.

The D.C. Circuit therefore remanded the case to the NLRB for further proceedings. Stay tuned for the sequel.

Bottom Line: Given that the NLRB now has a Democratic majority, the Tobin Center standard is likely to get the hook. In all probability, the board will either readopt the Obama-era standard mentioned above or fashion a completely new approach. In either event, an employer’s ability to exclude off-duty contractor employees from its premises will almost certainly be curtailed.