The NLRB recently issued its decision in Reliant Energy, dated December 30, 2011. The key litigated issue was whether a property owner violated the National Labor Relations Act (NLRA) when it ejected a temporary subcontractor's employee from its premises for attempting to organize its employees during his own working time.

Reliant Energy owned and operated several electric power plants in California. It hired a contractor to perform maintenance work on one of the power plants, the Etiwanda facility. That contractor subcontracted the work to Edison Operation and Maintenance Service (EOMS). EOMS hired an employee, Richard Baenza, to perform work at Etiwanda. Baenza had worked at the power plant before Reliant bought it, and was involved in the Utility Workers of America union.

When Baenza began work, the union was also attempting to organize Reliant's employees at Etiwanda. Because Baenza was a well-known union official, employees gave him authorization cards for the union, which he collected, and asked him union-related questions during the workday, which he answered. When Reliant management learned of these activities, they asked the contractor to have Baenza removed from the property.

The union filed unfair labor practice (ULP) charges with the NLRB for Baenza's removal and conduct by Reliant.

An NLRB administrative law judge (ALJ) held that Reliant violated the NLRA. Reliant appealed the decision by filing exceptions to the five-member panel (Board) in charge of the NLRB's judicial functions.

A three-member panel of the Board reviewed the ALJ's decision. In a two-to-one decision (Member Hayes dissenting), the Board found that Reliant violated the NLRA for, among other things, removing Baenza from the worksite because he was engaging in protected concerted activity with Reliant employees. The Board majority:

Member Hayes dissented, asserting that, as with the Board's recent decision in Simon DeBartolo Group, the majority continues to improperly expand access rights for non-employees to exercise Section 7 rights. He reiterated his concerns from Simon, stating that the majority ignored all previous Supreme Court mandates to balance the tensions between a worker's Section 7 rights and property rights (see Legal Update, Employees of Shopping Malls' Maintenance Contractor May Handbill on Malls' Property to Organize Union: NLRB). He noted further that, under Simon and New York New York Hotel & Casino, the Board at least required the contractor's employee to "regularly work" on the owner's property, but here, the Board dropped that requirement.

Hayes balanced Reliant's property rights with Baenza's Section 7 rights, emphasizing that Baenza was a temporary employee of a subcontractor, allowed on site to complete a specific, time-sensitive task. This task did not include organizing Reliant's own employees. Accordingly, Hayes found that Reliant's property rights permitted it to remove Baenza from the worksite for engaging in non-work-related activities during paid work time.

In addition to Baenza's status as a temporary employee, Hayes further found that Baenza's Section 7 rights are weak because he was attempting to organize Reliant's employees, a separate potential bargaining unit for a separate employer, neither his own. Hayes found that Baenza's right to access Reliant's property for organizing activity was no greater than any other non-employee union organizer's.

On balance, Hayes found that Reliant's property rights far outweigh Baenza's organizing rights.

In light of this decision, employers need to take precautions when employees of contractors or subcontractors are engaging in union activity on their worksite.