Union Members Allowed to Protest on Property Not Belonging to their Employer

Musicians should have been allowed to stand on private property while they protested a ballet company’ use of recorded music inside a performing arts center. This decision shows that the right of employees to engage in peaceful and non-disruptive labor activities may trump the interest of an employer to control access to its private property.

The company said the musicians could not hand out leaflets on sidewalks outside the building where they normally play music.

The Tobin Center leases performance space to the San Antonio Symphony, San Antonio Ballet, San Antonio Opera. AFM Local 23 has a collective bargaining agreement with the symphony. Union musicians perform live music for some, but not all, of the ballet company’s performances.

The ballet group was scheduled to perform Tchaikovsky’s “Sleeping Beauty” with recorded music. Union members stood on a sidewalk near the auditorium entrance and handed out leaflets before the performance urging the public to demand live music. “You’ve paid full price for half of the product,” Local 23 argued in the leaflets.

Tobin Center staff told the union members they had to leave the center’s private property. The Local 23 members moved across a handed out several hundred leaflets to arriving spectators. The union filed an unfair labor practice charge alleging the center violated the National Labor Relations Act by expelling them from the front of the auditorium.

The musicians were not employees of the Tobin Center, the ALJ said, but they regularly worked in the performance arts center and barring their leafleting violated the NLRA.

There was no evidence of overcrowding or disruption at the Tobin Center, and no support for the center’s argument that if it is a “soft target” for terrorists, the ALJ said. The musicians were not carrying backpacks that might conceal explosives, and sending the union members across the street from the Tobin Center would not likely reduce any danger from terrorism, he said.

Terrorists? Really? I’ve heard some lawyers make outlandish arguments – especially when the law is not on their said, but comparing violinists to terrorists for passing out paper…..

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

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