Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts

372 NLRB No. 28 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts and Local 23, American Federation of Musicians. Case 16–CA–193636 December 16, 2022 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN, RING, WILCOX, AND PROUTY This case is before the National Labor Relations Board on remand from the United States Court of Ap- peals for the District of Columbia Circuit.1 The principal issue is whether the Board should retain the revised ac- cess standard for off-duty employees of an onsite con- tractor adopted in the underlying decision in this case, reported at 368 NLRB No. 46 (2019) (Bexar County I), modify it, or abandon it altogether. Having accepted the court’s opinion as the law of the case, we have conclud- ed, in balancing the competing rights and interests at stake, that the policies and purposes of the Act would be best effectuated by abandoning the revised access stand- ard adopted in Bexar County I and by returning to our previous court-approved test announced in New York New York Hotel & Casino, 356 NLRB 907 (2011), enfd. 676 F.3d 193 (D.C. Cir. 2012), cert. denied 568 U.S. 1244 (2013).2 Under the New York New York test, a property owner may lawfully exclude from its property off-duty employees who regularly work on the property for an onsite contractor and who seek to engage in Sec- tion 7 activity on the property only where the property owner is able to demonstrate that the contractor employ- ees’ Section 7 activity significantly interferes with the use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and disci- pline.3 Accordingly, having returned to the test set forth in New York New York, and for the reasons discussed below, we affirm the judge’s finding that the Respondent violated Section 8(a)(1) by barring the off-duty San An- 1 Local 23, American Federation of Musicians v. NLRB, 12 F.4th 778 (D.C. Cir. 2021). 2 For that reason, as explained in detail below, we reverse the Board’s underlying decision in this case in Bexar County I and its over- ruling of New York New York, Simon DeBartolo Group, 357 NLRB 1887 (2011), and Nova Southeastern University, 357 NLRB 760 (2011), enfd. 807 F.3d 308 (D.C. Cir. 2015). 3 New York New York, 356 NLRB at 918-919. tonio Symphony employees from accessing the Re- spondent’s property to engage in Section 7 activity.4 I. INTRODUCTION The right of employees to engage in Section 7 activity at their workplace is critical for them to realize the pro- tections afforded under the Act. The workplace is where they see their coworkers. It is where they are most af- fected by their employer’s decisions. It is where they are most likely to be both motivated to and able to effective- ly participate in concerted actions designed to improve their working conditions. The Act’s promise to employ- ees that they are entitled to organize, bargain collective- ly, and engage in other concerted activities for their mu- tual aid or protection rings hollow if employees—while off the clock—cannot engage in protected conduct at the very place where they and their coworkers work. A law designed to empower employees to improve working conditions at their workplaces must provide employees with rights at those workplaces. The Board in Bexar County I essentially stripped off- duty contractor employees whose employer does not own the property where they work from having Section 7 rights at their workplace. This is despite the seemingly large and increasing percentage of employees in the American workforce employed by onsite contractors.5 And yet without the opportunity to exercise their Section 7 rights at their workplace, the Act’s promise will be an empty one for the many contractor employees who work at a property not owned by their employer. On review, the D.C. Circuit held that components of the revised access standard in Bexar County I were arbi- trary and other aspects of it were arbitrarily applied. The court remanded the case to the Board, noting that it could 4 On December 5, 2017, Administrative Law Judge Arthur J. Am- chan issued his decision in this case. In adopting a new access stand- ard, which it applied retroactively, the Board in Bexar County I re- versed the judge’s 8(a)(1) violation finding and dismissed the com- plaint. As discussed below, upon accepting the court’s remand, the Board solicited and received statements of position from the General Counsel, the Charging Party Local 23, American Federation of Musi- cians (the Union), and the Respondent. On remand, the Board has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the judge’s recommended Order as modified and set forth in full below. We shall substitute a new notice to conform to the Order as modified. 5 See, e.g., Annette Bernhardt, Rosemary Batt, Susan Houseman & Eileen Appelbaum, Domestic Outsourcing in the United States: A Re- search Agenda to Assess Trends and Effects on Job Quality, 11, 25-29 (Ctr. for Econ. & Policy Research, Working Paper, 2016), https://cepr.net/images/stories/reports/working-paper-domestic- outsourcing-2016-03.pdf; Annette Bernhardt, Labor Standards and the Reorganization of Work: Gaps in Data and Research, 9-10 (Inst. for Research on Labor & Emp’t, UC Berkeley, Working Paper No. 100-14, 2014), https://irle.berkeley.edu/files/2014/Labor-Standards-and-the- Reorganization-of-Work.pdf. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 proceed with a version of the access standard the Board sought to apply in Bexar County I or develop a new test. For the reasons explained below, we see no reason to attempt to rehabilitate a standard that fundamentally fails off-duty contractor employees by almost always denying them their right to engage in Section 7 activities at their workplace. Instead, we choose to return to the court- approved New York New York test that properly accom- modates contractor employees’ rights under federal labor law with a property owner’s state law property rights and legitimate managerial interests. II. FACTS6 The San Antonio Symphony leases performance space from the Tobin Center for the Performing Arts (the To- bin Center), which is owned and operated by the Re- spondent. The Symphony, along with Ballet San Anto- nio and Opera San Antonio, are the Tobin Center’s three principal resident companies. The Symphony uses the Tobin Center pursuant to a “Use Agreement,” by which it has a licensor-licensee relationship with the Respond- ent. Section 4(1) of the Use Agreement’s Terms and Conditions provides that the Symphony is required to cause its employees “to abide by all rules and regula- tions” that may be adopted by the Respondent and Sec- tion 4(5) permits the Respondent “to refuse admission to or cause to be removed” from its property “any disorder- ly or undesirable person” as determined by the Respond- ent in its reasonable discretion. The Use Agreement also specifies that, in return for the use fee that it pays the Respondent, the Symphony has the right to use the Tobin Center for 22 weeks each year for performances and re- hearsals. The Symphony is also a party to a collective- bargaining agreement with the Union. Under the collec- tive-bargaining agreement, the Symphony employees are employed for 30 weeks within a 39-week performance season from September to June, except for when their work is reduced by forced furloughs. Because the Sym- phony employees only use the Tobin Center for 22 of their 30 workweeks each year, the Symphony employees also occasionally perform at other venues around San Antonio. Nonetheless, seventy-nine percent of the Sym- phony employees’ rehearsals and performances during the 2016–2017 performance season were at the Tobin Center. During the performance season, the Symphony employees also use the Tobin Center’s break room for breaks, lunches, and union meetings. Some Symphony employees store large instruments at the Tobin Center. 6 We briefly recount the facts that have previously been summarized in the Board’s underlying decision and the judge’s decision. In addition, the Symphony maintains a library at the To- bin Center, which is staffed by a union member. On the evening of February 17, 2017, about a dozen Symphony employees sought to peacefully leaflet on the sidewalk in front of the main entrance to the Tobin Cen- ter. The Symphony employees had been distressed to learn that Ballet San Antonio had opted to use recorded music, rather than live music, for its production of Tchaikovsky’s Sleeping Beauty. The use of recorded music denies the Symphony employees the opportunity to work at the performance by playing the score. Be- cause of financial difficulties, the Symphony had already had to furlough the Symphony employees for 3 weeks during the 2016–2017 season. To raise awareness among Ballet San Antonio’s pa- trons about the use of recorded instead of live music, the Union decided to leaflet before the performances. The leaflet stated: You will not hear a live orchestra performing with the professional dancers of Ballet San Antonio. Instead, Ballet San Antonio will waste the world class acoustics of the Tobin Center by playing a recording of Tchai- kovsky’s score over loudspeakers. You’ve paid full price for half of the product. San Antonio deserves bet- ter! DEMAND LIVE MUSIC! Although there is no plausible claim, and no evidence, that the Symphony employees were or would have been in any way disruptive or harassing to Ballet San Anto- nio’s patrons, the Respondent’s event staff and San An- tonio police officers at the Respondent’s direction imme- diately informed the Symphony employees that they could not distribute the leaflets anywhere on the Re- spondent’s property, including the sidewalks. The Sym- phony employees were forced to relocate across the street off the Tobin Center grounds onto a public side- walk where there were fewer patrons. III. PRIOR BOARD AND COURT PROCEEDINGS A. The Board’s 2011 New York New York Decision In 2011, the Board in New York New York considered whether off-duty food service employees had the right to engage in organizational leafleting of customers outside their employer’s place of business—not on their employ- er’s property, but in the public areas of a hotel-casino for which they and their employer provided services integral to the property owner’s business.7 Informed by amicus 7 356 NLRB 907 (2011). The case was before the Board on remand from the D.C. Circuit. In the original decisions, the Board, applying its then-current precedent, had treated contractor employees as identical to the property owner’s own employees for purposes of Sec. 7. New York New York Hotel & Casino, 334 NLRB 772 (2001); New York New York Hotel & Casino, 334 NLRB 762 (2001). The D.C. Circuit rejected that BEXAR COUNTY PERFORMING ARTS CENTER FOUNDATION D/B/A TOBIN CENTER FOR THE PERFORMING ARTS 3 briefing, oral argument, and court guidance, the New York New York Board acknowledged that the case could not be decided by rote application of Republic Aviation, in which the Supreme Court recognized the statutory right of employees to engage in non-disruptive Section 7 activity at work on property owned by their employer.8 In evaluating the issue in light of principles set by the Supreme Court, the Board also noted the Court’s obser- vation that “the Act ‘confers rights only on employees, not on unions or their nonemployee organizers,’ whose rights are derived from the right of employees to learn about the advantages of self-organization from others” and thus are given limited accommodation.9 The Board concluded that the contractor employees plainly fell into a different category than union organiz- ers because “[i]n distributing handbills to support their own organizing efforts, [the employees]—who indisput- ably are covered by the Act, as protected employees un- der Section 2(3)—were exercising their own Section 7 rights.”10 Further, unlike union organizers, the contractor employees were not strangers to the property because they worked there regularly.11 The Board thus concluded “that the statutorily-recognized interests of the [contrac- tor] employees . . . are much more closely aligned to those of [the property owner’s] own employees” than to the interests of nonemployee union organizers.12 At the same time, the Board recognized that the con- tractor employees’ lack of a direct employment relation- ship with the property owner could necessitate a different position and remanded the cases to the Board for further consideration. New York New York, LLC v. NLRB, 313 F.3d 585, 590-591 (D.C. Cir. 2002). The court noted that the issue was not controlled by Supreme Court precedent: No Supreme Court case decides whether the term ‘employee’ extends to the relationship between an employer and the employees of a con- tractor working on its property. No Supreme Court case decides whether a contractor's employees have rights equivalent to the proper- ty owner's employees—that is, Republic Aviation rights to engage in organizational activities in non-work areas during non-working time so long as they do not unduly disrupt the business of the property owner – because their work site, although on the premises of another employer, is their sole place of employment. Id. at 590. The court held that “[i]t is up to the Board to [decide the nature and scope of Sec. 7 rights of these employees] not only by applying whatev- er principles it can derive from the Supreme Court's decisions, but also by considering the policy implications of any accommodation between the § 7 rights of [the contractor’s] employees and the rights of [property owner New York New York] to control the use of its premises, and to manage its busi- ness and property.” Id. 8 356 NLRB at 913 (citing Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945)). 9 Id. at 914 (quoting Lechmere, Inc. v. NLRB, 502 U.S. 527, 532 (1992)). 10 Id. 11 Id. at 916 12 Id. at 915–916. accommodation than for the property owner’s own off- duty employees.13 The Board noted that the property owner had the right to control access to and use of its property.14 The Board also observed that the employees’ “handbilling did not interfere with operations or disci- pline [nor] adversely affect the ability of customers to enter, leave, or fully use the facility . . . .”15 The Board then considered whether there were any ways in which the “absence of an employment relationship” affected the evaluation of the property owner’s interests.16 It found that “the property owner generally has the legal right and practical ability to fully protect its interests through its contractual and working relationship with the contrac- tor,”17 and would have “anticipated” the possibility that regularly-present contractor employees might choose the property as a venue for Section 7 activity;18 “but the con- tractors’ employees have no parallel ability to protect their statutory rights and legitimate interests in and around their workplace without [the Board’s] interven- tion.”19 The New York New York Board “address[ed] only the situation where . . . a property owner seeks to exclude, from nonworking areas open to the public, the off-duty employees of a contractor who are regularly employed on the property in work integral to the owner’s business, who seek to engage in organizational handbilling di- rected at potential customers of the employer and the property owner.”20 It concluded that, in those circum- stances: [T]he property owner may lawfully exclude [contrac- tor] employees only where the owner is able to demon- strate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and disci- pline (as those terms have come to be defined in the Board’s case law).21 13 Id. at 916. 14 Id. 15 Id. at 916–917 (emphasis in original). 16 Id. at 917 (emphasis in original). 17 Id. at 918. The Board cited numerous Board cases that showed how the contractor relationship—unlike where nonemployees are in- volved—provides property owners the opportunity to exert authority over contractor employees. Id. at 917–918 fns. 41–44. 18 Id. at 917. 19 Id. at 918. 20 Id. at 918. 21 Id. at 918–919. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 B. The D.C. Circuit’s Approval of New York New York The D.C. Circuit enforced the Board’s New York New York decision, noting that “the governing statute and Supreme Court precedent grant the Board discretion over how to treat employees of onsite contractors for [Section 7] purposes.”22 The court found that the New York New York Board had “adequately considered and weighed the respective interests based on the principles from the Su- preme Court's decisions” as well as “the policy implica- tions of any accommodation between the § 7 rights of [the contractor’s] employees and the rights of [the prop- erty owner] to control the use of its premises, and to manage its business and property.”23 The court also ex- plicitly agreed with the Board that employee communi- cations directed at customers were entitled to the same protections under Section 7 as communications aimed at fellow employees.24 Until Bexar County I, the Board had consistently fol- lowed its New York New York precedent.25 No interven- ing decision of the D.C. Circuit has cast doubt on its de- cision upholding the Board,26 nor has any federal appel- late court rejected the Board’s view. C. The Board’s Decision in Bexar County I In Bexar County I, the Board acknowledged that the New York New York test—which had been approved by the D.C. Circuit—controlled this case.27 Nonetheless, the Board overruled New York New York and announced a new standard to govern off-duty contractor employees’ access to the property where they regularly work (but that is not owned by their employer) to engage in Section 7 activity.28 The Board asserted—contrary to the D.C. Circuit’s opinion upholding the Board’s decision—that the New York New York Board impermissibly gave too little weight to the property owner’s property rights and too much weight to the Section 7 rights of the employ- ees.29 The Board accused the New York New York Board of “merely paying lip service” to the judicially-required 22 New York-New York, 676 F.3d at 196. 23 Id. at 196 fn. 2 (quotations omitted). 24 Id. at 196–197 (quoting Stanford Hospital & Clinics v. NLRB, 325 F.3d 334, 343 (D.C. Cir. 2003)). 25 See Simon DeBartolo Group, 357 NLRB at 1888 & fn. 8 (finding protected, under New York New York, organizational handbilling by off-duty employees of a shopping mall maintenance contractor who worked at the mall regularly but not necessarily exclusively); Nova Southeastern Univ., 357 NLRB 760 (2011) (finding protected, under New York New York, organizational handbilling by off-duty employee of a university maintenance contractor who worked at the university regularly and exclusively), enfd. 807 F.3d 308 (D.C. Cir. 2015). 26 See Nova Southeastern Univ. v. NLRB, 807 F.3d 308, 312-13 (D.C. Cir. 2015). 27 368 NLRB No. 46, slip op. at 1–2. 28 Id., slip op. at 2. 29 Id., slip op. at 7. distinction, which the Supreme Court had described as being one “of substance,” “between the access rights of employees and those of nonemployees.”30 From this premise, the Board concluded that: (1) “[o]ff-duty em- ployees of a contractor are trespassers”; and (2) there- fore, they “are entitled to access for Section 7 purposes only if the property owner cannot show that they have one or more reasonable alternative nontrespassory chan- nels of communicating with their target audience.”31 The Bexar County I Board went on to describe a two- step standard.32 Under the first step, only contractor em- ployees who work both “regularly” and “exclusively” on the property are deemed to have a sufficient connection to the property to be afforded greater Section 7 access rights than nonemployees.33 As to regularity, the Board determined that contractor employees work “regularly” on the property owner’s property only if the contractor regularly conducts business or performs services there.34 The Board gave the example of a contactor employee who stocked vending machines once a week on a proper- ty as working “regularly” on the property.35 On the other hand, seasonal contractor employees who work only part of the year on the property would potentially lack the necessary regularity.36 In addition, any work that con- tractor employees perform for that contractor must be exclusively on that property—that is, they cannot work elsewhere for the contractor that employs them on that property.37 In addition, under the second step of the Bexar County I standard, even if contractor employees work both regu- larly and exclusively on the property, the property owner is free to exclude them—even from areas open to the public—if it can show that the contractor employees “have one or more reasonable nontrespassory alternative means to communicate their message.”38 This does not require showing that an “alternative means” is substan- tially equivalent to the means denied to employees, as measured by cost (in time and money) to the contactor employees and by effectiveness (the likelihood of reach- ing the actual target audience, in a meaningful way, at a meaningful time).39 Moreover, the property owner is not required to prove that permitting the contractor employ- ees to engage in Section 7 activity on the property would 30 Id., slip op. at 2 fn. 14. 31 Id., slip op. at 2. 32 Id., slip op. at 2-3. 33 Id., slip op. at 2-3, 8. 34 Id., slip op. at 3, 8. 35 Id., slip op. at 7 fn. 56. 36 Id., slip op. at 2, 10–11. 37 Id., slip op. at 3, 8. 38 Id., slip op. at 3, 8–10. 39 Id., slip op. at 8–10. BEXAR COUNTY PERFORMING ARTS CENTER FOUNDATION D/B/A TOBIN CENTER FOR THE PERFORMING ARTS 5 interfere, in any way, with its or the contractor’s use of the property or that excluding the contractor employees is justified by a legitimate business reason, such as the need to maintain production and discipline.40 In dissent, then-Member McFerran argued that, in con- travention of Supreme Court and D.C. Circuit decisions, the Board’s new standard placed a property owner’s right to exclude above the labor law rights of employees in all but the rarest circumstances, which removes important Section 7 rights from a segment of the workforce that may need them the most.41 She asserted that the Board failed to offer an adequate rationale for adopting such a restrictive standard that essentially grants off-duty con- tractor employees the minimal access rights afforded to union organizers and strips important labor-law rights from a significant segment of American workers who work on property owned by someone other than their employer.42 About four months after the issuance of its Bexar County I decision, the Board denied the Union’s motion for reconsideration, rejecting the Union’s contention that the Board’s new access standard is “legally infirm” by barring many off-duty contractor employees from exer- cising their Section 7 rights.43 In dissent, then-Member McFerran stated that, for the reasons explained in her dissent from the Bexar County I decision, she believed that the Union had demonstrated “material error” and would have granted the Union’s motion for reconsidera- tion.44 D. The D.C. Circuit's Grant of Review of Bexar County I In granting the Union’s petition for review, the D.C. Circuit held that the first step of the Board’s new access standard was arbitrary and that the Board’s application of the second step was also arbitrary.45 As to the first step of the new access standard, the court recognized that the Board, as a conceptual matter, properly sought to identify those contractor employees with a sufficiently strong connection to the property to be granted off-duty access rights.46 However, the court determined that the Board’s implementation of that inquiry was arbitrary.47 The court noted that the Board essentially measured regularity by the frequency an employee works on a property but then failed to explain its contention that a vending machine 40 Id. 41 Id., slip op. at 18, 24. 42 Id., slip op. at 23–24. 43 Bexar County Performing Arts Center, 16-CA-193636, 2019 NLRB LEXIS 696 (Dec. 11, 2019). 44 Id. 45 Local 23, American Federation of Musicians, 12 F.4th at 780. 46 Id. at 783. 47 Id. stocker who worked at the property less frequently than the Symphony employees would still satisfy the regulari- ty requirement.48 In addition, the court stated that the Board failed to explain how working exclusively on a property is necessary to show a sufficient connection to the property to gain access rights.49 The court reasoned that the Board’s exclusivity requirement would permit denial of access rights to contractor employees who have a substantial presence on the property but occasionally work at another site for the same contractor, and yet, conversely, require access for contractor employees who work only marginally, but exclusively for one contractor, on the property owner’s property.50 Thus, the court found the implementation of the Board’s exclusivity and regularity conditions to be arbitrary, and, accordingly, rejected the first step of the Board’s test. The court also rejected the Board’s application of the second step of its new access standard.51 The court rec- ognized that the Board purportedly placed the burden on the property owner to show that the contractor employees had a reasonable alternative nontrespassory means of communication in order to differentiate their access rights from those of nonemployees.52 The court found, however, that the Board failed to apply this burden shift- ing in its decision.53 The court noted that, because this step of the new access standard did not exist when the case was originally before the administrative law judge and the Board did not remand the case, neither the Sym- phony employees nor the Union had an opportunity to develop arguments or evidence as to whether the Re- spondent satisfied its burden of showing the reasonable- ness of any alternative means.54 In striking down parts of the new access standard and finding it arbitrarily applied, the court permitted the Board on remand to “decide whether to proceed with a version of the test it an- nounced and sought to apply in this case or to develop a new test altogether.”55 IV. THE POSITIONS OF THE PARTIES Subsequent to the D.C. Circuit's opinion, the Board notified the parties to this proceeding that it had accepted the court's remand and invited them to file statements of position. As discussed below, the General Counsel, the Union, and the Respondent each filed statements of posi- tion. 48 Id. at 783–784. 49 Id. at 784–785. 50 Id. 51 Id. at 785–786. 52 Id. at 786. 53 Id. at 786. 54 Id. at 786–787. 55 Id. at 788. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 A. The General Counsel The General Counsel urges the Board to return to the New York New York test for determining the Section 7 access rights of off-duty contractor employees and find that the Respondent violated Section 8(a)(1) when it de- nied the Symphony employees access to its property. The General Counsel maintains that New York New York appropriately recognized that contractor employees’ fun- damental Section 7 rights are no less than other statutory employees’, and that their regular worksite is the place where they can most effectively communicate their mes- sage to fellow employees, their employer, and the gen- eral public. The General Counsel asserts that contractor employees are a growing segment of the workforce and yet they are particularly vulnerable to interference with their Section 7 rights and subject to other employment law violations, which means they have an especially strong need to be able to exercise their statutory rights at their workplace. In addition, the General Counsel rejects the relevance of contractor employees working exclu- sively on the property or having reasonable alternative nontrespassory means of communicating their message. B. The Union The Union also urges the Board to return to the New York New York test and find that the Respondent violated Section 8(a)(1). The Union notes that the D.C. Circuit in New York New York had approved of the Board’s consid- eration and weighing of the respective interests at issue and asserts that the New York New York Board properly found that off-duty contractor employees had a sufficient connection to the property owner’s property to be afford- ed Section 7 access rights, without considering whether alternative nontrespassory means of communication ex- isted. The Union argues for the Board to conclude, under the New York New York test, that the Respondent unlaw- fully barred the Symphony employees from leafleting on its property in an area open to the public, which did not significantly interfere with the Respondent’s use of its property. C. The Respondent The Respondent urges the Board to retain the Bexar County I standard and remand the case to the judge so that the Board can apply it properly to the facts of this case. As to the first step of that standard, the Respondent argues that the “regularly and exclusively” requirements are essential to ensure that contractor employees have a strong enough relationship to the property to permit their interference with the property owner’s property rights. In particular, the Respondent contends that the Board should find regularity of employment when there is a continuous pattern of work at the property—such as would exist for schoolteachers—because that indicates that the property is where employees commonly meet and interact. The Respondent also claims that, without the exclusivity requirement, a property owner would have to grant access rights to contractor employees with- out any consideration of the strength of their relationship to the property. The Respondent posits that, if the Board modifies the exclusivity requirement in light of the D.C. Circuit decision, the Board should still require the con- tractor employee “to perform substantially all of their work on the property.” The Respondent asserts that, if the Board makes any revisions to the first step of the access standard, the Board should remand this case to the judge to apply that revised standard and that, at the very least, the Board should remand this case to allow it to show, under the second step of the access standard, that the Symphony employees had reasonable alternative nontrespassory means of communicating their message to the public. V. DISCUSSION As noted above, the D.C. Circuit remanded this case back to the Board because it found the Board’s decision in Bexar County I arbitrary, both on its own terms and as applied in this case.56 In evaluating the competing the rights and interests at stake, we agree with the court’s assessment. The Supreme Court has long recognized the statutory right of employees to engage in Section 7 activity at their workplace on property owned by their employer.57 This is the place where employees see and interact with each other and where they provide their labor for the benefit of their employer. As the Supreme Court has observed, the workplace is “a particularly appropriate place for the distribution of § 7 material, because it ‘is the one place where [employees] clearly share common interests and where they traditionally seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.’”58 Employees are well suited to discuss working conditions while engaged in even the most prosaic of off-duty activ- ities at their workplace, whether walking in a parking lot to their jobsite or eating lunch in an employee cafeteria. We see no reason why contractor employees—just be- cause their employer does not own the property where they regularly work—should not enjoy a similar oppor- tunity to exercise their statutory rights at the place where they regularly work. 56 12 F.4th at 780. 57 Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803-804 & fn. 10 (1945). 58 Eastex, Inc. v. NLRB, 437 U.S. 556, 574 (1978) (quoting Gale Products, 142 NLRB 1246, 1249 (1963)). BEXAR COUNTY PERFORMING ARTS CENTER FOUNDATION D/B/A TOBIN CENTER FOR THE PERFORMING ARTS 7 The Supreme Court has required the Board to accom- modate Section 7 rights with private property rights so that there is “as little destruction of one as is consistent with the maintenance of the other.”59 In other words, the fundamental tenet of property law that property owners have a right to exclude does not exist in a legal vacuum where no other countervailing rights exist. In the context of the Act, Supreme Court precedent recognizes that fed- eral labor law routinely requires employers to yield to some degree their property rights protected under state law.60 Although property owners have a legal right to protect their property from trespassers, it would be con- trary to the Act to permit a property owner’s property rights to be used to subvert its own employees’ Section 7 activity by denying them access to their workplace while off-duty.61 Denying other statutory employees who work on that property—even those who are not directly em- ployed by the property owner—from being able to exer- cise their Section 7 rights at their workplace while off- duty is just as harmful. A. The Bexar County I Standard Undermines Contractor Employees’ Section 7 Rights Initially, we note our agreement with the D.C. Cir- cuit’s conclusion that Bexar County I “is arbitrary in the way that it implements its new standard for determining when a property owner may prohibit an onsite contrac- tor's employees from conducting labor organizing activi- 59 Hudgens v. NLRB, 424 U.S. 507, 521 (1976) (quoting NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956)). 60 As the Supreme Court has observed, “[t]he right of employers to exclude union organizers from their private property emanates from state common law, and while this right is not superseded by the [Na- tional Labor Relations Act], nothing in the [Act] expressly protects it. To the contrary, this Court consistently has maintained that the [Act] may entitle union employees to obtain access to an employer’s property under limited circumstances.” Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 217 fn. 21 (1994) (citing Lechmere and Babcock & Wilcox); see also NLRB v. Stowe Spinning Co., 336 U.S. 226, 232 (1949) (“[S]ome dislocation of property rights may be necessary in order to safeguard” employees’ statutory rights.) (quoting Republic Aviation, 324 U.S. at 802 fn. 8). 61 For instance, if an employer restricts employee access to its prop- erty by requiring that employees not engage in Sec. 7 activity while there, and thereafter the employees exceed the scope of their invitation by engaging in Sec. 7 activity, the employees may technically be tres- passers under state common law. See RESTATEMENT (SECOND) OF TORTS § 168 (AM. LAW INST. 1965) (“A conditional or restricted con- sent to enter land creates a privilege to do so only in so far as the condi- tion or restriction is complied with.”). However, the employer would still clearly violate the Act by imposing such a restriction. See Repub- lic Aviation, 324 U.S. at 802 fn. 8 (noting that the Board “has held that the employer's right to control his property does not permit him to deny access to his property to persons whose presence is necessary there to enable to employees effectively to exercise their right to self- organization and collective bargaining, and in those decisions which have reached the courts, the Board's position has been sustained”). ty on the premises.”62 It enables property owners to se- verely restrict off-duty contractor employees’ access to its property to engage in Section 7 activity for reasons completely unconnected to the employer’s interest in protecting its property.63 The Board’s decision contra- venes the explicit rights afforded to employees under Section 7 and could even create a perverse incentive for employers to structure their work relationships to avoid directly hiring the employees who work on its property in order to deny them the opportunity to exercise their statutory rights. It does so without any factual or legal support for its contention that a property owner is effec- tively powerless to protect its property and operational interests by any means other than excluding off-duty contractor employees from its property. It disregards the numerous Board cases showing how businesses exert authority over contractor employees.64 And it fails to explain how the restrictions imposed as part of its newly announced test are necessary for reaching a proper ac- commodation of rights. Part of the Board’s task in devising an access standard for off-duty contractor employees is to ensure that it only reaches those contractor employees with a sufficient connection to the property to merit Section 7 access rights. In Bexar County I, the Board limited access not only to those contractor employees who regularly work on the property but also to those who exclusively work there. As the D.C. Circuit observed, even as to the regu- larity requirement, the Board defined the matter far too narrowly.65 The Board characterized essentially all sea- 62 12 F.4th at 781-782. 63 In broadening the circumstances in which a property owner can prohibit access to contractor employees, the Board pointed to the dis- tinction “of substance” under Lechmere between the Sec. 7 access rights of employees and nonemployees. However, the Supreme Court has never decided, including in Lechmere, “whether the term ‘employ- ee’ extends to the relationship between an employer and the employees of a contractor working on its property.” New York-New York, 676 F.3d at 196 (quoting New York New York, 313 F.3d at 590). Moreover, the distinction “of substance” identified by the Supreme Court in Lechmere and Babcock & Wilcox rests on the Court’s conclusion that access rights of nonemployee organizers are not directly protected by Sec. 7, but rather derive from onsite employees’ Sec. 7 “right of self- organization [which] depends in some measure on the ability of em- ployees to learn the advantages of self-organization from others.” Babcock & Wilcox, 351 U.S. at 112-113; see also Lechmere, 502 U.S. at 537. As the D.C. Circuit’s two decisions in New York New York, above, expressly recognize, the Supreme Court’s distinction “of sub- stance” between the access rights of onsite employees and of nonem- ployee organizers clearly does not encompass the situation here, where contractor employees sought to exercise their own Sec. 7 rights at their own workplace, which just happened to be owned by an entity other than their employer. 64 See New York New York, 356 NLRB at 917–918 fns. 41–44 (summarizing cases). 65 Local 23, American Federation of Musicians, 12 F.4th at 783-784. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 sonal employees—arguably schoolteachers included—as not working on a property regularly because they are not present for constant or definite intervals.66 It is axiomat- ic that some seasonal employees, even if not present at the property throughout the year, are not strangers to the property where they work.67 In addition, the D.C. Circuit recognized that the exclu- sivity requirement adopted in Bexar County I is “an ill- suited proxy” for determining whether contractor em- ployees are sufficiently connected to a property.68 It is simultaneously both over- and underinclusive.69 It de- nies access to those who work virtually their entire workweek at a property owner’s property yet occasional- ly work at a different site for the same contractor. At the same time, it would grant access to contractor employees who work only a fraction of their workweek for a partic- ular contractor but all of the work for that contractor oc- curs on the property.70 The accommodation of rights reached by the Board in Bexar County I was arbitrary because it bears little logical connection to preventing intrusion of the property owner’s property rights while failing to maintain Section 7 access rights for a large universe of contractor employees—including those whose connection to the property where they work is self-evident.71 Even if the Board finds that contractor employees have a sufficient connection to the property because they work there regularly and exclusively, the Board in Bexar County I provided that they could still be denied access if the property owner is able to demonstrate that they have access to a reasonable alternative nontrespassory channel of communication.72 The question of whether nontres- passory channels of communication exist should not be 66 Id. at 784. For instance, in this case, the Board found that the Symphony employees did not work regularly on the Respondent’s property because, despite the Symphony’s Use Agreement providing it the right to use the Tobin Center for 22 weeks over its 39-week season, “the Symphony itself did not regularly conduct business or perform services there.” 368 NLRB No. 46, slip op. at 10–11. 67 Id. (“We are hard pressed to understand how the schoolteacher could be considered more of a ‘‘stranger[ ]’ to or ‘outsider[ ]’ on the property’ than the vending machine operator.”). 68 Id. at 784-785. 69 Id. at 785. 70 Id. (“Those results stand significantly at odds with the Board's stated logic for the first step of its test—they fail to exclude workers with only a marginal presence while excluding others with a substantial presence.”). 71 Id. (“The Board's implementation of the exclusivity condition, then—as with its implementation of the regularity condition—is arbi- trary. And, because those two conditions make up the first step of the Board's new test for determining when contractor employees have access rights to the premises for organizing activity, the first step of the Board's test cannot be sustained.”). 72 368 NLRB No. 46, slip op. at 8-10. relevant where the property owner permits—and in fact expects—these same employees to regularly enter its property to work for its contractor. The contractor em- ployees are simply not in the same relationship to the property as trespassers who are strangers or outsiders to it, such as nonemployee union organizers.73 Moreover, the Board defined alternative nontrespassory channels of communication about as broadly as possible, including the use of social and traditional media.74 Of course, these outlets are available but provide no guarantee that the contractor employees are able to reach the particular subset of the public they may want to reach, such as the patrons or customers of the property owner.75 Further, the Board did not require that the property owner show any legitimate business justification for requiring the contractor employees to resort to nontrespassory fo- rums—for example, by showing that the contractor em- ployees’ Section 7 activity would interfere with the use of the owner’s property—instead of being able to com- municate their message at their workplace. Accordingly, we find the access standard established in Bexar County I fails to ensure a proper accommoda- tion between the contractor employees’ Section 7 rights and the property owner’s property rights.76 In our 73 In Bexar County I, in requiring property owners to grant access only where no reasonable alternative nontrespassory channel exists, the Board relied on Lechmere and other Supreme Court precedent that considered alternative means of access by nonemployee union organiz- ers who do not have any nonderivative Sec. 7 rights. As noted, contrac- tor employees seeking to access the property to exercise their own Sec. 7 rights are not in the same category as nonemployees because they are already regularly on the property and their Sec. 7 activities thereon could be anticipated, negating the need to consider the existence of alternative nontrespassory channels of communication. Further, as we explain herein, it would severely undercut employees’ nonderivative Sec. 7 rights, which are at the core of statutory protection, to deny such rights in their own workplace, the most natural and potentially most fruitful setting in which to exercise them, and instead force employees to pursue alternative channels. 74 368 NLRB No. 46, slip op. at 9–10 (providing that alternative nontrespassory channels of communication “may include newspapers, radio, television, billboards, and other media through which is transmit- ted ‘the ordinary flow of information that characterizes our society.’ . . . . In certain instances, such alternative means could include social media, blogs, and websites . . . .”) (quoting Lechmere, 502 U.S. at 540). As to this case, the Board noted that, in addition to a public sidewalk across the street, “the Symphony employees also had other channels they could have used to convey their message, including newspapers, radio, television, and social media, such as Facebook, Twitter, YouTube, blogs, and websites.” Id., slip op. at 11. 75 See Bexar County I, 368 NLRB No. 46, slip op. at 23 (then- Member McFerran, dissenting) (“Even with the broadest outreach, bolstered with unlimited resources, attempting to reach the narrow band of the public who patronizes an establishment—a virtually unknowable subset of the population until they set foot in the employer’s business— will be impossible.”). 76 The number of statutory employees deprived of their fundamental Sec. 7 rights under Bexar County I are limitless. By way of example, BEXAR COUNTY PERFORMING ARTS CENTER FOUNDATION D/B/A TOBIN CENTER FOR THE PERFORMING ARTS 9 view—as well as the D.C. Circuit’s—it is flawed in mul- tiple ways. The D.C. Circuit directed the Board, on re- mand, to “proceed with a version of the test it announced and sought to apply in this case or to develop a new test altogether.”77 In light of the D.C. Circuit opinion and our own reevaluation of the issue, we decline to proceed with a version of the test announced in Bexar County I. B. A Proper Accommodation Between Off-Duty Con- tractor Employees’ Section 7 Rights and a Property Owner’s Private Property Rights In 2011, informed by amicus briefing, oral argument, and court guidance, the Board in New York New York established a different access standard to accommodate off-duty contractor employees’ Section 7 rights and property owners’ private property rights.78 The Board held that a “property owner may lawfully exclude [off- duty contractor] employees only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justi- fied by another legitimate business reason, including, but not limited to, the need to maintain production and disci- pline (as those terms have come to be defined in the Board’s case law).”79 As noted above, the D.C. Circuit upheld that test, and no court has questioned it.80 For the custodial or housekeeping employees who work at multiple buildings, none of which are owned by the firm that employs them, will have no right to communicate with the public about their working conditions on any of the building properties. Likewise, food service contractor em- ployees—even those who work exclusively at one location—will be unable to leaflet the public to complain about unfair working conditions at their workplace because they can theoretically use Facebook or bill- board ads. 77 12 F.4th at 788. 78 356 NLRB at 907–908, 918–919. 79 356 NLRB at 918-919. 80 As noted above, prior to the issuance of its 2011 New York New York decision, the Board had treated contractor employees working on a property owner’s property as identical to the property owner’s own employees for purposes of Sec. 7. E.g., New York New York, 334 NLRB at 773; New York New York, 334 NLRB at 762; PNEU Electric, Inc., 332 NLRB 616, 616 & fn. 1 (2000). On review of the Board’s decision in PNEU Electric, the Fifth Circuit recognized—as the D.C. Circuit’s subsequent review of the Board’s first New York New York decisions would also reflect—that “[w]hen it is unclear under estab- lished law whether a category of workers enjoys free-standing, nonde- rivative access rights, then a court is obliged to defer to reasonable judgments of the Board in its resolution of cases that have not as yet been resolved by the Supreme Court.” NLRB v. Pneu Elec- tric, Inc., 309 F.3d 843, 854 (5th Cir. 2002) (quoting ITT Indus., Inc. v. NLRB, 251 F.3d 995, 1003 (D.C. Cir. 2001) (emphasis in original)). In weighing the contractor employees’ Sec. 7 access rights, notwithstand- ing the Supreme Court’s Lechmere decision, the court noted that “[o]n its face, the situation appears more closely related to that in Republic Aviation.” Id. at 853. Nonetheless, the court remanded the case to the Board to provide a reasoned analysis in light of Lechmere why the contractor employees should be granted access rights like those afford- ed to the property owner’s own employees. Id. at 854–855. reasons explained below, we agree with the balancing of the respective rights and interests by the New York New York Board.81 Accordingly, we return to the New York New York access test for off-duty contractor employees.82 The Board did not issue a further decision in Pneu Electric, but, just two months after the Fifth Circuit’s opinion, the D.C. Circuit similarly rejected the Board’s analysis in its 2001 New York New York decisions and remanded those cases to the Board for further consideration. 313 F.3d at 590–591. The court noted its agreement with the Fifth Circuit in Pneu Electric that the Board’s precedent on this issue had failed to consider what impact, if any, the Supreme Court’s Lechmere decision has on its accommodation of the competing rights. Id. at 588. Fur- thermore, the D.C. Circuit pointed out that the issue was not controlled by Supreme Court precedent and left it to the Board to consider and weigh the competing rights that had to be accommodated. Id. at 590. As noted above, the D.C. Circuit subsequently held that the Board had satisfactorily accommodated those competing rights in its 2011 New York New York decision and the Supreme Court denied the petition for certiorari seeking review of the D.C. Circuit’s opinion approving the Board’s analysis. 676 F.3d 193 (D.C. Cir. 2012), cert. denied 568 U.S. 1244 (2013). No court has questioned the Board’s analysis in its 2011 New York New York decision. See Nova Southeastern Univ., 807 F.3d at 312–313 (approving the Board’s application of the New York New York test). 81 Our dissenting colleagues assert that the New York New York Board’s “conclusion rested solely on a balancing of the property own- er’s managerial interests against the off-duty contractor employees’ Sec. 7 rights,” without taking into consideration the property owner’s property rights. First, the New York New York Board repeatedly recog- nized that it was balancing both the property owner's property rights and its managerial interests. Id. at 918 (“The Board’s task is thus to find an accommodation between the [contractor] employees’ Section 7 interests and [the employer's] property rights and managerial interests as we have analyzed them.”) (emphasis added). The New York New York Board explained, in response to a similar assertion by the dissent in that case that it had not adequately considered the property owner’s property rights, that “[i]n fact, and in contrast to the dissent, we proceed to carefully analyze [the property owner's property] interest and the legal and practical means available to the owner to protect it in this precise situation.” Id. at 916 fn. 36. This analysis included an assess- ment of whether off-duty contractor employees’ access would signifi- cantly interfere with the property owner’s use of its property. Id. at 918. Second, as to the property owner’s right to exclude, which is at the core of the dissent’s assertion, we must give and have given sub- stantial weight to such property right. However, the right to exclude standing alone cannot carry the day when we must also consider the countervailing core rights of employees under Sec. 7 that are in direct conflict with the right to exclude here. 82 The dissent contends that, in returning to the New York New York access test, we have “abandoned all effort to reach an appropriate ac- commodation between the competing Section 7 and property rights at stake in this matter.” Yet this ignores that the standard we adopt today is a reasonable accommodation of competing rights. Off-duty contrac- tor employees are not granted the same access rights as employees of the property owner but also are not treated as nonemployees with no connection to the property owner’s property. Instead, off-duty contrac- tor employees will only enjoy a Sec. 7 right to access the property at which they regularly work when the property owner fails to demon- strate that the access would significantly interfere with the use of its property or that it had another legitimate business reason for denying them access. Of course, we do not stand alone in finding that this is a reasonable accommodation between the competing rights at issue. The D.C. Circuit has agreed. New York-New York, 676 F.3d at 196 fn. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 An underlying principle central to this case is that Sec- tion 7 only confers rights directly to employees, not to unions or their nonemployee organizers.83 The off-duty employees who work for a contractor of a property own- er do not fit neatly into these categories.84 They are nei- ther employees of the property owner nor are they nonemployees with no relationship to the property own- er’s property where they work.85 Under the Supreme Court’s decision in Republic Aviation, an employer can- not bar its own off-duty employees from exercising their Section 7 right to distribute union literature in nonwork areas of its property.86 Importantly, as noted above, in seeking to engage in Section 7 activity at their work- place, off-duty contractor employees—like the employ- (“We conclude that the Board in this case adequately considered and weighed the respective interests based on the principles from the Su- preme Court’s decisions and ‘the policy implications of any accommo- dation between the § 7 rights of [the contractor’s] employees and the rights of [the property owner] to control the use of its premises, and to manage its business and property.’”) (quoting New York New York, 313 F.3d at 590). 83 New York New York, 356 NLRB at 914 (quoting Lechmere, 502 U.S. at 532). 84 In relying on the Supreme Court’s Lechmere decision, the dissent fails to grasp the critical distinction between contractor employees who regularly work on a property owner’s property and the nonemployees who were the focus of Lechmere. The former—who regularly work on the property, and do so to the benefit of the property owner—are no strangers or outsiders. Contractor employees may regularly interact with, sometimes even know quite well, the property owner's own em- ployees and customers. They are not only familiar with the property itself, but often just as familiar to those who frequent the property as anyone else. There is no reason to deprive them of their Sec. 7 rights because of the nature of their employment, especially where the proper- ty owner cannot provide a legitimate business reason for doing so. Moreover, the D.C. Circuit has already noted that the Supreme Court decision in Lechmere does not address the access rights of off-duty contractor employees. New York New York, 313 F.3d at 590 (“No Supreme Court case decides whether the term “employee” extends to the relationship between an employer and the employees of a contractor working on its property.”). Ten years later, the D.C. Circuit reaffirmed this point. New York-New York, 676 F.3d at 196 (“In short, this Court determined that the governing statute and Supreme Court precedent grant the Board discretion over how to treat employees of onsite con- tractors for these purposes.”). The full D.C. Circuit unanimously de- nied a petition for rehearing en banc. New York New York, LLC v. NLRB, 2012 U.S. App. LEXIS 13850 (July 6, 2012) (per curiam). And the Supreme Court denied a petition for writ of certiorari of the D.C. Circuit’s New York-New York decision. 568 U.S. at 1244. Thus, the dissent’s claim that our decision “cannot be reconciled with Supreme Court precedent” is baseless and wholly without merit. 85 Id. at 912 (“[W]e seek to establish an access standard that reflects the specific status of the [contractor] employees as protected employees who are not employees of the property owner, but who are regularly employed on the property. Neither Lechmere nor Republic Aviation involved this category of persons.”). 86 Id. at 913 (“Under Republic Aviation, it is well established that an employer that operates on property it owns ordinarily violates the Act if it bars its employees from distributing union literature during their nonwork time in nonwork areas of its property.”). ees in Republic Aviation—are exercising their own Sec- tion 7 rights, not those derived from other employees.87 Moreover, contractor employees who work regularly on the property owner’s property are anything but strangers or outsiders to that property.88 Thus, the New York New York Board properly determined that the statutorily- recognized rights and interests of contractor employees who regularly work on the property and seek to engage in Section 7 activity while there are much more closely aligned to those of the property owner’s own employees than to nonemployee union organizers whose Section 7 access rights derive from the rights of employees who work on the property.89 Nonetheless, we recognize that a property owner gen- erally has the right to control access to and use of its property.90 Because the contractor employees lack a direct employment relationship with the property owner, the property owner’s property rights may need to be ac- commodated differently because it is the employees of a contractor who seek to engage in Section 7 activity on its property rather than its own employees.91 In contrast to its own direct hires, the property owner may not have invited the contractor employees onto its property and it might not have the same control over the contractor em- ployees’ conduct while on its property.92 However, contractor employees are not strangers or outsiders to the property like nonemployee union organ- izers.93 Through the voluntary and mutually beneficial 87 Id. at 914 (quoting Lechmere, 502 U.S. at 532). 88 Id. at 916. 89 Id. at 915-916. In Simon DeBartolo Group, the Board applied the New York New York test to find that a property owner unlawfully barred the off-duty employees of a maintenance contractor from distributing organizational handbills to the public. 357 NLRB at 1890. The Board relied on the parties’ stipulation that the maintenance contractors who sought to distribute the handbills worked regularly on the property owner’s property and noted that the nature of the contractor employees’ janitorial work made it “more likely than not” that their work on the property “is not so fleeting or occasional” as to take this case outside of New York New York. Id. at 1888 fn. 8. The Board rejected the conten- tion that the contractor employees had to work “exclusively” on the property to be afforded Sec. 7 access rights. Id. In Bexar County I, the Board also overruled Simon DeBartolo Group. 368 NLRB No. 46, slip op. at 2. We share the D.C. Circuit’s concerns about limiting Sec. 7 access rights to only those contractor employees who work exclusively for a contractor on the property owner’s property. In returning to the New York New York test, we only require that contractor employees show a sufficient connection to the property by working there regularly. Although what is considered sufficient regularity will necessarily vary from case to case, the frequency of the contractor employee’s work on the property, consistency of work on the property, or a significant amount of time spent working on the property, even if only at certain times of the year, may be sufficient. 90 New York New York, 356 NLRB at 916. 91 Id. 92 Id. 93 Id. BEXAR COUNTY PERFORMING ARTS CENTER FOUNDATION D/B/A TOBIN CENTER FOR THE PERFORMING ARTS 11 relationship between the property owner and the contrac- tor, the property owner still has the legal right and practi- cal ability to fully protect its interests through its contrac- tual and working relationship with the contractor without barring off-duty contractor employees from accessing the property and depriving them of their Section 7 rights.94 The property owner can also reasonably expect that con- tractor employees regularly employed on its property may seek to engage in Section 7 activity at their work- place.95 Nothing prevents the property owner from nego- tiating contractual terms sufficient to protect its interests in relation to the contractor employees so that it can quickly and effectively intervene if necessary.96 For instance, the contractor could agree to use its em- ployment authority to enforce the property owner’s rules to protect against disruptions to the property owner’s operations.97 Moreover, even without an express con- tractual commitment, the property owner and the con- tractor share an economic interest in ensuring that the contractor employees do nothing that might interfere with the property owner’s operations.98 Property owners are often able to direct the contractor’s managers and supervisors to take action to protect their operational and property interests, such as when they observe misconduct or to direct the removal of unruly employees from the premises.99 Also available to the property owner—in addition to its property rights—is its right to exercise its 94 Id. at 918. 95 Id. at 917. 96 Id. The dissent points to our acknowledgment that a property owner may not have invited the contractor employees onto its property and that the owner may not have the same level of control over contrac- tor employees as it does over its own employees. Notwithstanding, the contractor employees are not strangers or outsiders. They are only on the property because the property owner has contracted with a contrac- tor who has brought its employees there. That contract provides the property owner with the right to impose specific requirements on the contractor in relation to its employees to further protect the property owner's operational and property interests. We agree with the dissent that “the fact that the parties may enter into such a contract does not establish that property owners’ rights are in any way diminished in the absence of such a contract.” However, just as importantly, the property owner’s contractual relationship with the contractor demonstrates the limited impact on property owners of our access test for off-duty con- tractor employees, even where the property owner cannot show that the contractor employees’ access would significantly interfere with the use of its property or that it has another legitimate business reason for deny- ing them access, because the property owner has other means available to protect its interests. The property owner can negotiate for greater control over the contractor employees, so long as any such control is consistent with the contractor employees’ Sec. 7 rights. 97 Id. 98 Id. 99 Id. at 917–918. legitimate managerial interests in preventing improper interference with the use of its property.100 Thus, in contrast to situations where the interests of property owners are infringed by nonemployee trespass- ers, property owners are able to protect their property and operational interests against improper infringement by contractor employees without having to resort to state trespass laws.101 The contractor employees, however, have no reasonable alternative for exercising their Sec- tion 7 rights at their workplace if the property owner can summarily deny them access while off-duty.102 There is simply no other place that would be anywhere close to as effective for the contractor employees to engage in Sec- tion 7 activity than the place where they and their coworkers work.103 In fact, the property owner’s proper- ty may be the only place that the contractor employees can effectively reach a small, specific subset of the gen- eral public that patronizes the business where they work, which may be the only people to whom the contractor employees want to share their message about their work- ing conditions.104 In accommodating these competing interests, to cause as little destruction to the contractor employees’ Section 7 rights as possible, the Board in New York New York did not hold that a property owner may never exclude em- ployees who seek to engage in Section 7 activity on its property.105 It placed a reasonable condition on the property owner’s right to exclude.106 The contractor em- ployees are not in the same position vis-à-vis the proper- ty owner as the property owner’s own employees.107 For 100 Id. at 916, 918–919; see also Hudgens, 424 U.S. at 521 fn. 10 (distinguishing Republic Aviation from Babcock & Wilcox by observing that “when the organizational activity was carried on by employees already rightfully on the employer’s property, . . . the employer’s man- agement interests, rather than his property interests” were involved). The New York New York Board explained that “[a]part from its state law property right to exclude, [the property owner] also has a legitimate interest in preventing interference with the use of its property.” 356 NLRB at 916. 101 Id. at 918 & fn. 47. 102 Id. at 918 (“Careful consideration of the questions asked by the court of appeals, and of our own case law and experience, leads us to conclude that the property owner generally has the legal right and prac- tical ability to fully protect its interests through its contractual and working relationship with the contractor (as this case illustrates), but the contractors’ employees have no parallel ability to protect their statutory rights and legitimate interests in and around their workplace without our intervention.”). 103 Id. at 919 (“[T]he workplace ‘is a particularly appropriate place for the distribution of § 7 material.’”) (quoting Eastex, 437 U.S. at 574). 104 Id. at 915. 105 Id. at 918–919. 106 Id. 107 Id. at 916. The Board in New York New York left open—as we do today—“the possibility that in some instances property owners will be DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 that reason, under the New York New York test, the prop- erty owner can still exclude off-duty contractor employ- ees from its property where the property owner is able to demonstrate that the contractor employees’ Section 7 activity would significantly interfere with its use of the property or where the exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline.108 We believe that this accommodation appropriately bal- ances the competing rights at issue here.109 It ensures able to demonstrate that they have a legitimate interest in imposing reasonable, non-discriminatory, narrowly-tailored restrictions on the access of contractors’ off-duty employees, greater than those lawfully imposed on its own employees.” Id. at 919. 108 Id. at 918–919. The Board in New York New York declined to condition access to the property owner’s property on whether the con- tractor employees had a reasonable alternative means of communi- cating with their intended audience. The Board determined that such a requirement burdens contractor employees’ exercise of their Sec. 7 rights more than is necessary to adequately protect the property owner’s rights and interests. Moreover, until the Board issued Bexar County I, “[n]either the Board nor any court has ever required employees to prove that they lacked alternative means of communicating with their intended audience as a precondition for recognition of their right, sub- ject to reasonable restrictions, to communicate concerning their own terms and conditions of employment in and around their own work- place.” Id. at 919. We agree with the New York New York Board that access to alternative means of communicating their message should not be a reason to deny employees the right to engage in Sec. 7 activity at their workplace. First, we are skeptical that any means of communica- tion other than at the place where they work would be a reasonable alternative. The Supreme Court has recognized the unique status of the workplace as a location for Sec. 7 activity. See Eastex, 437 U.S. at 574. Second, in the absence of significant interference with its proper- ty, any intrusion on the property owner’s property rights is minimal enough that it should not require a dislocation of the contractor em- ployees’ Sec. 7 rights. 109 According to the dissent, an accommodation of the competing rights at issue here does not require balancing the off-duty contractor employees' Sec. 7 rights with the property owner's private property rights. Instead, the dissent claims that the off-duty contractor employ- ees’ Sec. 7 rights are adequately accommodated if they have a reasona- ble nontrespassory means to exercise those rights. Of course, this as- sumes—which we doubt—that reasonable nontrespassory means could exist given how essential the workplace is as a location for employees to engage in Sec. 7 activity. The dissent notes that the Supreme Court in Lechmere recognized that reasonable alternative nontrespassory means of communication were sufficient for nonemployee union organ- izers to exercise their derivative Sec. 7 rights. The reason that the dissent’s proposed accommodation does not suffice here is because this case does not concern derivative Sec. 7 rights. It involves contractor employees seeking to exercise their own nonderivative Sec. 7 rights as employees covered under the Act, and to do so in the place they regu- larly work—the very place that the Supreme Court has identified as “a particularly appropriate place for the distribution of § 7 material.” Eastex, 437 U.S. at 574. Moreover, there is no reason to relegate em- ployees’ Sec. 7 rights to an inferior status to private property rights. After all, if off-duty contractor employees can engage in Sec. 7 activity on the property owner’s property without significantly interfering with the owner’s use, there is little harm in permitting that accommodation that property owners—even after utilizing their contrac- tual and working relationship with the contractor to pro- tect their property rights—do not have to permit signifi- cant interference with their property for Section 7 activi- ty.110 But in the absence of that significant interference, or another legitimate business reason of the property owner, it ensures that off-duty contractor employees— like all other statutory employees—are able to realize the rights granted to them under Section 7 of the Act.111 C. Retroactive Application of the Board’s Return to the New York New York Test When the Board announces a new standard, a thresh- old question is whether the new standard may appropri- ately be applied retroactively, or whether it should be applied only in future cases. In this regard, “[t]he Board’s usual practice is to apply new policies and standards retroactively ‘to all pending cases in whatever to ensure as little “destruction” to a federally protected right as possible while still respecting the owner’s private property rights. 110 Although the dissent contends that our distinction between the access rights of contractor employees and those of the property owner's own employees is premised on an “abstract, theoretical exception that has never been and will predictably never be found to exist in fact,” there is no reason to prejudge what facts may come before the Board in a future case warranting the application of such an exception. Of course, if a property owner cannot show that granting access to its off- duty contractor employees would significantly interfere with the use of its property, or that it has another legitimate business reason for deny- ing them access, it should not be alarmed by the prospects of its con- tractor employees accessing its property to engage in Sec. 7 activity. For that reason, the dissent’s concerns about off-duty contractor em- ployees having the same access rights as the off-duty employees of the property owner under Tri-County Medical Center, Inc., 222 NLRB 1089, 1089–1090 (1976), are unfounded. It is only reasonable for off- duty contractor employees to have the same access rights as other off- duty employees when they are also seeking to exercise their own non- derivative Sec. 7 rights, unless the property owner can show that doing so would significantly interfere with its use of its property. Moreover, in dismissing as illusory the property owner’s opportunity to show why off-duty contractor employees should not be granted access, the dissent repeats the same claim made by the dissent in New York New York, which, at bottom, is “that our decision does not do what it plainly does and does not mean what it plainly says.” New York New York, 356 NLRB at 920. The New York New York Board’s apt response then is just as true now: “We can only disagree.” Id. 111 Contractor employees who regularly work on the property own- er’s property have a sufficiently strong connection to that property to have their Sec. 7 rights accommodated when possible. The dissent contends that, in accommodating conflicting rights, less “destruction” of the property owner's property rights is warranted where contractor employees Sec. 7 rights are involved, instead of the property owner's own employees. However, the accommodation of rights we have ar- rived at already ensures that there is the least amount of “destruction” to those rights as possible while still preserving off-duty contractor employees’ right to engage in Sec. 7 activity at their workplace. More- over, the dissent is wrong to suggest that we would deprive property owners of their right to exclude nonemployees. Our decision is not about nonemployees; it is about employees, specifically employees who work on the property owner’s property. BEXAR COUNTY PERFORMING ARTS CENTER FOUNDATION D/B/A TOBIN CENTER FOR THE PERFORMING ARTS 13 stage.’”112 Only when it would create a “manifest injus- tice” would the Board not apply a new rule retroactive- ly.113 The Supreme Court has indicated that “the proprie- ty of retroactive application is determined by balancing any ill effects of retroactivity against ‘the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles.’”114 In order to protect contractor employees’ Section 7 rights, we believe that it is appropriate for us to apply the New York New York test to this case and to all pending cases. It would cause no “manifest injustice” to the Re- spondent here. The New York New York test had been the current Board case law—and had been enforced by the D.C. Circuit—for several years by the time the Re- spondent barred the Symphony employees from leaflet- ing on the Respondent’s property. There can be no mis- chief attributed to the Board or surprise to the Respond- ent for the Board to apply its then-existing precedent to find the Respondent’s conduct unlawful. Moreover, be- cause Bexar County I denied contractor employees their Section 7 access rights except in the rarest of circum- stances, it is unlikely that there are many pending cases alleging a denial-of-access violation because the General Counsel would not have issued a complaint while Bexar County I was current Board case law. However, to the extent there are pending cases, as discussed above, it is critical for the Board to analyze those cases under the New York New York test to ensure that the Board proper- ly accommodates the competing rights and interests. If it does not significantly interfere with the property owner’s use of its property or the property owner does not have another legitimate business reason for doing so, denying off-duty contractor employees access to their workplace to engage in Section 7 activity would impermissibly im- pede the contractor employees’ statutory rights. D. Application of the New York New York Test to the Symphony Employees Applying the New York New York test here, we affirm the judge’s finding that the Respondent violated Section 8(a)(1) by excluding the Symphony employees from the Respondent’s property to distribute union leaflets to the Respondent’s patrons about an issue affecting the Sym- phony employees’ terms and conditions of employment, specifically their number of hours of work. For the rea- sons stated by the judge, we agree that the Symphony employees worked regularly on the Respondent’s proper- ty. During the Symphony’s 39-week season, the Sym- 112 SNE Enterprises, 344 NLRB 673, 673 (2005) (quoting Deluxe Metal Furniture Co., 121 NLRB 995, 1006–1007 (1958)). 113 Id. 114 Id. (quoting Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 203 (1947)). phony employees perform most of their performances and rehearsals for their employer at the Tobin Center.115 The Symphony employees also use the Respondent’s property, including its breakroom, to hold breaks and union meetings, to store large instruments, and to house a library staffed by a union member.116 In addition, the Respondent has not demonstrated that the leafleting significantly interfered with the Respond- ent’s use of its property or that excluding the Symphony employees was justified by some other legitimate busi- ness reason, such as the need to maintain operations or discipline. In fact, the outdoor plaza on the Respond- ent’s property where the Symphony employees sought to leaflet was open to the public at all times and the Sym- phony employees in no way prevented the Respondent’s patrons from also using that space or entering the interior of the Tobin Center. There was no need, as the Re- spondent claims, to prevent its patrons from having to “wade through” the Symphony employees given the broad expanse of the sidewalk in front of the Tobin Cen- ter and limited number of Symphony employees leaflet- ing. The judge also properly rejected the Respondent’s contention that the Symphony employees were harming its business operations by advocating a boycott of the Tobin Center. In fact, the Symphony employees were encouraging the Respondent’s patrons to demand a better experience so that the Tobin Center and its resident com- panies would attract more patrons, be more successful, and provide more work opportunities for the Symphony employees. There was also no evidence that the leaflet- ing posed a security threat to the Respondent or created a litter problem on the Tobin Center grounds. Moreover, as the judge recognized, there is nothing factually that would materially distinguish this case from New York New York. First, even though the Sympho- ny—the Symphony employees’ employer—was a licen- see of the Respondent, not an onsite contractor, the Board in Bexar County I properly noted that, “[f]or pur- poses of an analysis under the Act, a licensee is indistin- 115 Our dissenting colleagues quarrel with the D.C. Circuit's analysis that the Board in Bexar County I acted arbitrarily by finding that the Symphony employees did not work regularly on the Respondent's property. Without resorting to precise calculations of days per week or weeks per year worked, we find that the Symphony employees work “regularly” on the Respondent's property, as evidenced by the amount of their worktime the Symphony employees spent on the Respondent’s property performing or rehearsing during the performance season. 116 As the D.C. Circuit noted in its decision in this case, an employee can work regularly on the property even though the employee is sea- sonal or does not constantly work there. 12 F.4th at 784. A school- teacher, like the Symphony employees, can work long hours on the property with occasional week-long breaks and the summers off yet still have a strong connection to the property. Id. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 guishable from an onsite contractor.”117 The critical question, regardless of the employer’s precise status as a contractor or a licensor, is whether the contractor or li- censor employees have a sufficient connection to a prop- erty to afford them off-duty access, despite the potential impact on the property owner’s general property right to exclude. Importantly, when the employees work for a contractor or licensor of the Respondent, unlike nonem- ployees, the property owner has an agreement with the contractor or licensor governing the latter’s use of the property, thereby providing the property owner an oppor- tunity to protect its rights and interests. In this case, the Respondent had a Use Agreement with the Symphony under which the Symphony employees had a contractual right to access the Respondent’s property while on duty. At the same time, the judge correctly recognized that the Use Agreement also gave the Respondent control over Symphony employees who were on its property even while off duty, which was comparable to the control of the property owner in New York New York under its con- tractual agreement with the contractor.118 Moreover, in contrast to a stranger trespassing onto its property, the licensing relationship is highly useful to the property owner. Notwithstanding whatever impact it has on its property rights, in the same way that an onsite contractor has a mutually beneficial relationship with a property owner, the Symphony’s license with the Respondent provides a distinct value to the Respondent by drawing in patrons to its property—which allows it to fulfill its very purpose as a performing arts venue—and also by the Symphony compensating the Respondent for the use of its facility. 117 368 NLRB No. 46, slip op. at 1. 118 For instance, Sec. 4(1) of the Use Agreement’s Terms and Condi- tions requires the Symphony to cause its servants, agents, employees, etc. to abide by all rules and regulations as may from time to time be adopted by the Respondent. Sec. 4(5) allows the Respondent to refuse admission to or cause to be removed from the property any disorderly or undesirable person—which would reasonably include Symphony employees—as determined by the Respondent in its reasonable discre- tion. Notwithstanding, the dissent contends that, if the Respondent sought to apply its Use Agreement with the Symphony to remove the leafleting Symphony employees for being “disorderly or undesirable,” the Respondent’s conduct still would have been unlawful under our decision today. Of course it would have been, given that there is no evidence that the Symphony employees were disorderly or undesirable in any way, and certainly not in any way inconsistent with protected Sec. 7 activity. The Respondent can, as we note, contract to protect its property interests. For instance, a property owner can include in its agreement with its contractor a provision permitting the property owner to exercise some control over disorderly contractor employees, in case the contractor refuses to adequately exercise its managerial interests. The property owner cannot, however, collude with its contractor to contract away the Sec. 7 rights of the contractors’ employees. Second, even though the Symphony employees’ leaf- leting was not part of an organizing campaign, they had a Section 7 right to inform the public about Ballet San An- tonio’s use of recorded instead of live music, which di- rectly affected the Symphony employees’ working condi- tions. The Supreme Court in Eastex held that employees can “seek to improve terms and conditions of employ- ment or otherwise improve their lot as employees through channels outside the immediate employee- employer relationship.”119 In fact, the Supreme Court has rejected the argument “that the employees' interest in distributing literature that deals with matters affecting them as employees, but not with self-organization or collective bargaining, is so removed from the central concerns of the Act as to justify application of a different rule than in Republic Aviation” (which permits off-duty employees to leaflet on their employer’s property).120 Although the Symphony employees’ leafleting was not part of an organizing campaign, unlike the handbilling by the New York New York contractor employees, the judge rightfully noted that the Symphony employees’ conduct is entitled to just as much protection under Section 7, in accordance with the Supreme Court’s Eastex decision. Third, in contrast to the contractor employees in New York New York who leafleted the customers of their own employer, the Symphony employees’ leafleting was aimed at patrons of the Respondent who were attending a performance by Ballet San Antonio. In Simon DeBartolo Group, applying the New York New York test, the Board found that a property owner unlawfully barred contractor employees from handbilling directed at the property owner’s customers. As the Board noted in Simon DeBar- tolo Group, by quoting from New York New York, “what matters here is less the intended audience of the [contrac- tor] employees than that the [contractor] employees were exercising their own rights under Section 7.”121 Fur- thermore, as the New York New York Board explained, having customers as the contactor employees’ intended audience for their communications strengthened rather than weakened their statutory claim to access.122 By 119 437 U.S. at 565; see also Five Star Transportation, Inc., 349 NLRB 42, 47 (2007) (school bus drivers engaged in protected Sec. 7 activity by sending a letter to a school committee urging it not to award a school bus contract to another school bus operator prior to it being awarded the contract, which then unlawfully refused to hire the driv- ers), enfd. 522 F. 3d 46 (1st Cir. 2008). 120 437 U.S. at 573-574. 121 357 NLRB at 1888 fn. 9 (quoting New York New York, 356 NLRB at 915). 122 356 NLRB at 915. Moreover, as the D.C. Circuit explained in enforcing the Board’s New York New York decision, “neither this court nor the Board has ever drawn a substantive distinction between solicita- tion of fellow employees and solicitation of nonemployees,” such as BEXAR COUNTY PERFORMING ARTS CENTER FOUNDATION D/B/A TOBIN CENTER FOR THE PERFORMING ARTS 15 leafleting at their workplace, the contractor employees “were uniquely able to identify and communicate with the relevant subset of [the property owner’s] custom- ers.”123 Here as well, the Symphony employees sought to exercise their Section 7 rights by identifying and communicating with the relevant subset of the Respond- ent’s patrons who they thought would be best positioned to advocate for the change the Symphony employees wanted. The Respondent’s patrons who attend Ballet San Antonio performances—either intermittently or as season-ticket holders—would be more likely than other members of the public to find a receptive ear in the Ballet San Antonio’s management if they were to urge them to use live music performed by Symphony employees for future productions. IV. CONCLUSION Accordingly, we affirm the judge’s finding that, under the New York New York test, which we return to today as a proper accommodation of off-duty contractor employ- ees’ Section 7 rights and a property owner’s private property rights, the Respondent violated Section 8(a)(1) by preventing the Symphony employees from distrib- uting flyers on the sidewalk in front of the Tobin Center on the Respondent’s property about Ballet San Antonio’s use of recorded music, which deprived the Symphony employees of the work of performing that music live. The Symphony employees work regularly at the Tobin Center, and the Respondent has not demonstrated that the leafleting would have significantly interfered with the use of its property or that it had another legitimate busi- ness reason for denying them access. ORDER The National Labor Relations Board orders that the Respondent, Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts, San Antonio, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Prohibiting and/or preventing off-duty employees who are regularly employed at the Tobin Center, includ- ing employees of the San Antonio Symphony, from leaf- leting in nonworking areas open to the public of the To- bin Center property when that leafleting relates to wages, hours, or other terms and conditions of employment. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. customers. 676 F.3d at 197 (quoting Stanford Hospital & Clinics, 325 F.3d at 343). 123 Id. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its San Antonio, Texas facility copies of the attached notice marked “Appendix.”124 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent and maintained for 60 consecutive days in conspicu- ous places, including all places where notices to employ- ees are customarily posted. In addition to physical post- ing of paper notices, notices shall be distributed electron- ically, such as by email, posting on an intranet or internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. The Respondent shall take reasonable steps to ensure that the notices are not altered, defaced, or cov- ered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since February 17, 2017. (b) Within 21 days after service by the Region, file with the Regional Director for Region 16 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. December 16, 2022 ______________________________________ Lauren McFerran, Chairman ________________________________________ Gwynne A. Wilcox, Member 124 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notice must be posted within 14 days after the facility reo- pens and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforc- ing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 ________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBERSKAPLAN AND RING, dissenting. The question presented in this case is the extent to which musicians employed by the San Antonio Sympho- ny were entitled, while off duty, to access the premises of the Respondent Tobin Center for the purpose of leaf- letting patrons of Ballet San Antonio. In the underlying decision in this case, 368 NLRB No. 46 (2019) (Bexar I), the Board found that the Respondent did not violate Sec- tion 8(a)(1) of the Act by prohibiting the off-duty Sym- phony employees from leafletting on its private property under the circumstances of this case. In addressing this issue, the Board was guided by the Supreme Court’s holding in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), which reaffirmed the Court’s earlier precedent establishing that there was “a distinction ‘of substance’” between employees and nonemployees.1 Based on that distinction, the Court held that whereas the Board acted properly in determining access issues con- cerning employees by balancing property owners’ rights and the rights of their employees to engage in conduct protected by the Act, no such balancing is appropriate where nonemployees are concerned except in “the rare case” where no reasonable alternative means for commu- nication exist.2 With the Court’s distinction between employees and nonemployees in mind, the Board in Bexar I determined that although off-duty employees of onsite contractors, who are not employed by the property owner (“off-duty contractor employees”) were not entitled to the same access rights as employees of the property owner, they were also not strangers to the property to the degree that nonemployee union organizers were. Accordingly, the Board concluded that, under Lechmere, off-duty contrac- tor employees who had a regular presence on the proper- ty, and worked exclusively on the property, would have a sufficient connection to the property to warrant a limited intrusion on property owners’ rights. The Board further concluded, however, that even when off-duty contractor employees have a sufficient connection to the property under the “regular and exclusive” test, the property own- ers’ property rights need not give way to the Section 7 access rights of the off-duty contractor employees if the 1 Id. at 537 (quoting NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956)). 2 Id. latter have reasonable alternative nontrespassory means of communicating their message.3 In this regard, the Board placed the burden of proof on the property owner to establish that reasonable alternative means of commu- nication existed for the off-duty contractor employees to exercise their Section 7 rights in order to justify exclud- ing them from the property.4 In contrast, when “stranger” nonemployees seek access to private property to engage in Section 7 activity, the General Counsel bears the burden of proof to show that no reasonable al- ternative means of communication exist. Because the standard adopted in Bexar I was at odds with the Board’s 2011 decision in New York New York Hotel & Casino,5 the Board overruled that decision. Ap- plying its newly announced standard retroactively, the Board found that employees of the Symphony worked neither regularly nor exclusively on the Tobin Center’s property, and even assuming they did, they had reasona- ble alternative nontrespassory means of communicating their message. Accordingly, the Board concluded that the Tobin Center lawfully excluded from its property Symphony employees who sought access to engage in Section 7 activity. Upon review, the United States Court of Appeals for the District of Columbia Circuit declined to enforce the Board’s decision, finding that the Board had failed to present an adequate explanation for requiring off-duty contractor employees to have a “regular” presence on the property or to work “exclusively” on the property in or- der to justify interfering with property owners’ rights. The court also criticized the Board for failing to require the Respondent to meet its burden to establish that rea- sonable alternative means of communication were avail- able to the musicians. The case is now back before the Board. Rather than addressing the court’s specific concerns, however, our colleagues have in effect abandoned all effort to reach an appropriate accommodation between the competing Sec- tion 7 and property rights at stake in this matter, instead 3 Our colleagues criticize our balancing of the competing rights at is- sue here by indicating that they “doubt” that reasonable alternate non- trespassory means could exist through which off-duty contractor em- ployees could exercise their rights. In response, we simply note that the Supreme Court did not appear to share that doubt in Lechmere. See 502 U.S. at 537 (stating that it would be a “rare case” where reasonable alternate nontrespassory means for communications did not exist). Although that case involved the access of nonemployees, the type of access sought—to employees at their workplace—was the same. 4 Our colleagues assert that we are taking the position that “an ac- commodation of the competing rights at issue here does not require balancing the off-duty contractor employees’ Sec. 7 rights with the property owner’s private property rights.” That is simply not so. 5 356 NLRB 907 (2011) (New York New York), enfd. 676 F.3d 193 (D.C. Cir. 2012), cert. denied 568 U.S. 1244 (2013). BEXAR COUNTY PERFORMING ARTS CENTER FOUNDATION D/B/A TOBIN CENTER FOR THE PERFORMING ARTS 17 definitively prioritizing off-duty contractor employees’ Section 7 rights above the rights of property owners. Because our colleagues’ new standard fails to reflect a proper mutual accommodation of these rights as the Su- preme Court has required, we respectfully dissent. I. THE SUPREME COURT’S MANDATE IN LECHMERE As recognized by the Board in Bexar I, property own- ers “enjoy certain fundamental property rights derived from the common law and protected by the Fifth and Fourteenth Amendments to the United States Constitu- tion.”6 Among those rights is the right to exclude, which the Supreme Court has characterized as “one of the es- sential sticks in the bundle of property rights.”7 Mindful of these inherent rights, the Supreme Court ar- ticulated three guiding principles in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), for determining the extent to which property owners are required to permit access to their private property by individuals seeking to engage in Section 7 activity. First, the Court found that employees’ Section 7 rights are not absolute. Instead, when Section 7 rights conflict with a property owner’s property rights, an accommodation between the two “must be obtained with as little destruction of one as is consistent with the maintenance of the other.”8 Second, in determining that accommodation, the Court drew a distinction “of sub- stance” between the union activities of employees versus those of nonemployees.9 Third, nonemployees are not entitled to access private property to engage in Section 7 activity unless they have no reasonable alternative means of communicating their message.10 In other words, where nonemployees are concerned, no invasion of pri- vate property rights is required in order to accommodate Section 7 rights except in limited circumstances. This distinction between employees and nonemployees is clear from the terms of the National Labor Relations Act (NLRA). As the Supreme Court explained in Lechmere, Section 7 provides that employees have the right to self-organization, and Section 8(a)(1) makes it an unfair labor practice to infringe on employees’ exercise of their Section 7 rights. “By its plain terms,” the Court pointed out, “the NLRA confers rights only on employ- ees, not on … nonemployee[s].”11 Such a substantial distinction necessarily places the union activities of em- 6 368 NLRB No. 46, slip op. at 1. 7 Pruneyard Shopping Center v. Robins, 447 U.S. 74, 82 (1980). 8 502 U.S. at 534 (quoting NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956)). 9 Id. at 537 (quoting Babcock, 351 U.S. at 113). 10 Id. at 538. 11 Id. at 531–532. ployees and nonemployees at opposite ends of a spec- trum.12 With this distinction in mind, “[i]n cases involving employee activities,” the Supreme Court has approved the Board’s efforts to “‘balance the conflicting interests of employees to receive information on self-organization on the company’s property from fellow employees dur- ing nonworking time, with the employer’s right to con- trol the use of his property.’”13 By contrast, “[i]n cases involving nonemployee activities … the Board [i]s not permitted to engage in that same balancing.”14 Rather, as the Supreme Court explained, the matter is “straightfor- ward: § 7 simply does not protect nonemployee union organizers except in the rare case where ‘the inaccessibil- ity of employees makes ineffective the reasonable at- tempts by nonemployees to communicate with them through the usual channels.’”15 Indeed, the Court has made clear “that nonemployee organizers cannot claim even a limited right of access to a nonconsenting em- ployer’s property until ‘after the requisite need for access to the employer’s property has been shown.’”16 Accord- ingly, although the Court has “‘indicate[d] that an em- ployer may not always bar nonemployee union organiz- ers from his property, his right to do so remains the gen- eral rule’”;17 it is only in limited circumstances that prop- erty rights are “required to yield” to the organizing ac- tivities of nonemployees.18 We recognize that Lechmere does not directly control this case. However, the Board cannot ignore the Su- preme Court’s holding in Lechmere that the Act draws a sharp distinction between the access rights of employees and those of nonemployees and requires that property rights yield to nonemployees’ organizing rights only in limited circumstances. The Board must heed the Court’s teaching in determining the access rights of off-duty con- tractor employees, who are not employees of the proper- ty owner, even though they are also not utter strangers to the property like nonemployee union organizers. And in all cases involving access issues, the Board must heed 12 Id. at 538. 13 Id. at 537 (quoting Babcock, 351 U.S. at 109–110). 14 Id. 15 Id. The Court made clear that it was not endorsing the view that the Act protects “‘reasonable’ trespasses” by nonemployees, but rather was recognizing “that unions need not engage in extraordinary feats to communicate with inaccessible employees.” Id. at 537. 16 Id. at 534 (quoting Central Hardware Co. v. NLRB, 407 U.S. 539, 545 (1972)); see also Babcock & Wilcox, 351 U.S. at 114 (concluding that, as to nonemployees, Sec. 7 “does not require that the employer permit the use of its facilities for organization when other means are readily available”). 17 Id. at 535 (quoting Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180 (1978)). 18 Id. at 534 (quoting Babcock, 351 U.S. at 112). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 the Supreme Court’s “admonition that accommodation between employees’ § 7 rights and employers’ property rights ‘must be obtained with as little destruction of one as is consistent with the maintenance of the other.’”19 Consistent with these principles, less “destruction” of the property owner’s rights is warranted under Lechmere for off-duty contractor employees than for the property owner’s own employees by virtue of the former’s status as nonemployees of the property owner. This was the principle guiding our decision in Bexar I and, although the D.C. Circuit took issue with the adequacy of the Board’s justification in Bexar I for the specific standard set forth therein, it did not disagree with that fundamental principle.20 19 Id. 20 We decline to address the court’s specific criticisms of the stand- ard set forth in Bexar I here; because the majority decision abandons that test in its entirety, the test set forth in Bexar I will not be at issue in any further review of this decision. Having said that, we note that we disagree with certain assertions set forth in the court’s decision. For example, in finding that the Board’s requirement that an em- ployee work “regularly” on the property owner’s property was arbi- trary—a requirement, we note, under the majority’s standard as well— the court put significant weight on a footnote in the Bexar I decision stating that “a contractor employee who stocks vending machines once a week at the property owner’s facility works ‘regularly’ on the proper- ty . . . .” 368 No. 46, slip op. at 7 fn. 56. But the Court ignored the second half of the quoted sentence, which stated that such an employee “is essentially a stranger to the property for purposes of off-duty ac- cess.” Id. Indeed, the footnote was included in a section of the deci- sion in which the Board was criticizing the New York New York deci- sion’s sole requirement of working “regularly” on the property as over- broad, noting that simple regularity was not sufficient to establish a significant work connection to the property owner’s property. Id., slip op. at 7. Accordingly, it is clear that the Board was not taking the position that the vending-machine stocker would be entitled to en- hanced access rights but the Symphony employees would not. The court then compounded its error by engaging in faulty “back-of- the-envelope arithmetic” calculations. Local 23, American Federation of Musicians v. NLRB, 12 F.4th 778, 784 (D.C. Cir. 2021). The court reasoned that the Board’s decision was arbitrary because “working once a week (1/7) cannot count as regular presence if working 22 weeks of the year (22/52) does not.” Id. This analysis, however, com- pared apples to oranges: there can be no meaningful comparison of days in a week to weeks in a year. Taking the court’s example but correcting for the faulty comparison, if a nonemployee of the Tobin Center works on its property one day each week of the year (52/52), their presence would be more regular than would that of Symphony employees, who work onsite 22 weeks of the year (22/52). According- ly, using “weeks working” as the measure, it would not be arbitrary to conclude that contractor employees working onsite once each week are present more regularly than those working onsite 22 weeks per year. Alternatively, the court could have compared the number of days worked per year. The court suggests that “[i]n a typical performance week,” the Symphony employees were onsite a total of 6 days; our review of the record suggests that it was more typical for the employees to be onsite 5 days each week that the Symphony was performing at the Tobin Center. But just for illustrative purposes, we will assume that the employees work onsite 6 days a week for 22 weeks, in which case they would be onsite 132 days each year (132/365), whereas the vending- II. THE MAJORITY’S POSITION IGNORES THE FUNDAMENTAL LOLDING IN LECHMERE Today, as it did in 2011, the Board majority contra- venes Lechmere’s guiding principles as to the Section 7 rights of nonemployees of a property owner in its treat- ment of off-duty employees of an onsite contractor. The majority returns to New York New York, supra, where the Board held that off-duty contractor employees who worked regularly in a restaurant on the hotel and casino’s property had the right to access the owner’s property to engage in Section 7 activity unless the property owner could show that such activity would significantly inter- fere with the use of its property or could be restricted for another legitimate business reason, “including, but not limited to, the need to maintain production and disci- pline.”21 The New York New York Board acknowledged that the off-duty contractor employees were equivalent neither to the property owner’s own employees nor to nonemployee union organizers, and claimed to be “mind- ful of the Supreme Court’s admonition that the ‘distinc- tion between rules of law applicable to employees and those applicable to nonemployees’ is ‘one of sub- stance.’”22 Nevertheless, the Board granted these nonemployees of the property owner the same Section 7 access rights as the property owner’s own employees, subject to a nominal, and thus meaningless, exception.23 machine attendant works onsite 52 days of the year (52/365). Hourly comparisons, in turn, could produce closer results. In any event, the salient point is that the flawed arithmetic analysis relied on by the court does not support the court’s finding that the Board’s standard was arbi- trary. 21 356 NLRB at 918–919. Although our discussion in this dissent is focused on New York New York, we agree with Bexar I that the Board’s subsequent decisions in Simon DeBartolo Group, 357 NLRB 1887 (2011), and Nova Southeastern University, 357 NLRB 760 (2011), similarly failed to adequately consider the owner’s property rights. 22 356 NLRB at 913–914. 23 We emphasize that although the New York New York Board stated that it was accommodating the property owner’s managerial interests and property rights against the Sec. 7 rights of the off-duty contractor employees, its conclusion rested solely on a balancing of the property owner’s managerial interests against the off-duty contractor employees’ Sec. 7 rights. See id. at 918–919 (balancing the contractor employees’ Sec[.] 7 access rights against the property owner’s “need to maintain production and discipline” and interest in being free from “significant[] interfere[nce] with the use of his property”). Further, it is abundantly clear that the New York New York majority was merely paying lip service to the distinction of substance that the Supreme Court requires be drawn between the access rights of employ- ees and those of nonemployees. We need look no further than the majority’s acknowledgment that it was granting off-duty contractor employees the same rights of access as the property owner’s own em- ployees, subject to an abstract, theoretical exception that has never been and will predictably never be found to exist in fact. See id. at 919 (“We leave open the possibility that in some instances property owners will be able to demonstrate that they have a legitimate interest in imposing reasonable, non-discriminatory, narrowly-tailored restrictions on the BEXAR COUNTY PERFORMING ARTS CENTER FOUNDATION D/B/A TOBIN CENTER FOR THE PERFORMING ARTS 19 Today, the majority continues to recognize the substan- tial distinction between these individuals in name only. Simply put, the majority’s decision cannot be recon- ciled with Supreme Court precedent. The Court has rec- ognized that “‘[t]he locus of the accommoda- tion [between § 7 rights and private property rights] may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context.’”24 However, it is not the case that such an accommodation requires a balancing of Section 7 rights and private prop- erty rights. Based on the distinction of substance be- tween employees and nonemployees, the Court in Lechmere held that “[s]o long as nonemployee union organizers have reasonable access to employees outside an employer’s property, the requisite accommodation has taken place. It is only where such access is infeasible that it becomes necessary and proper to … balanc[e] the employees’ and employers’ rights.”25 Although we agree with Bexar I that under certain circumstances, contractor employees have greater Section 7 access rights than do nonemployee union organizers, it is still the case that they are nonemployees of the property owner, and their Section 7 access rights are weaker than those of the property owner’s own employees. Under Lechmere, then, the Bexar I Board reasonably concluded that “the requisite accommodation” of contractor employees’ Sec- tion 7 rights “has taken place” if reasonable nontrespas- sory means are available to them for the exercise of those rights, and where that is the case, no invasion of private property rights is necessary to achieve the requisite ac- commodation.26 In any event, because the “nature and access of contractors’ off-duty employees, greater than those lawfully imposed on its own employees.”) (emphasis added). Our colleagues pay the same lip service today. Although they claim not to “prejudge what facts may come before the Board in a future case warranting the application of [this] exception,” they immediately there- after alert property owners that they “should not be alarmed by the prospects of” off-duty contractor employees accessing their property for Sec. 7 activity. We consider such “prospects” to be a proxy for the majority’s normalization of infringing on private property rights. Moreover, their claim that they have given “substantial weight” to private property rights is as unconvincing as their claim that our dissent automatically allows property rights to “carry the day” is inaccurate. As we have detailed herein, the Bexar I burden to show nontrespassory alternative means to communicate rests with the property owner and, as the D.C. Circuit emphasized, this burden is not automatically met; the property owner must develop the record to meet this burden. 24 Lechmere, above, 502 U.S. at 538 (quoting Hudgens, above, 424 U.S. at 522). 25 Id. 26 The D.C. Circuit did not reject the Bexar I Board’s position in this regard. It merely found that the Board failed to require the Respondent to meet its burden of proving that the Symphony employees had rea- sonable alternative nontrespassory means of communicating their mes- sage. strength” of the contractor employees’ Section 7 rights are diminished when they seek access to premises that their employer does not own, the extent to which the contractor employees must be permitted to infringe upon private property rights is inherently more restricted.27 By returning to New York New York, however, the majority effectively gives contractor employees the same rights as the property owners’ own employees and, more prob- lematically here, ignores the Court’s directive that the yielding of private property rights to accommodate nonemployees is only necessary in certain contexts. By effectively equating contractor employees with property owners’ employees, the majority wrongfully promotes the near total deprivation of private property owners’ right to exclude nonemployees.28 III. THE MAJORITY’S ARGUMENTS THAT THEIR DECISION IS NOT IN CONFLICT WITH LECHMERE ARE UNAVAILING It is clear that the standard espoused today fails to ap- ply the Supreme Court’s mandate that property owners’ rights and Section 7 rights must both be accommodat- ed,29 despite our colleagues’ assertions to the contrary. For example, the majority asserts that contractor employ- ees’ rights are “much more closely aligned to those of the 27 See generally id. Contrary to the majority, our reliance on Lechmere is neither “base- less” nor “wholly without merit.” As we have made clear, Lechmere does not control off-duty contractor employees’ property access rights. Rather, the Bexar I test accords appropriate weight to Lechmere’s fun- damental principle that Sec. 7 rights may need to yield to private prop- erty rights under certain circumstances. 28 The Board has long held that an employer’s own off-duty em- ployees cannot be barred from exterior nonworking areas, such as the private sidewalks at issue here, “except where justified by business reasons.” Tri-County Medical Center, Inc., 222 NLRB 1089, 1089– 1090 (1976). We do not see how this standard differs meaningfully from the majority’s holding today that “off-duty contractor employees will only enjoy a Sec. 7 right to access the property at which they regu- larly work when the property owner fails to demonstrate that the access would significantly interfere with the use of its property or that it had another legitimate business reason for denying them access.” Accord- ingly, the majority’s return to New York New York makes off-duty contractor employees, for all intents and purposes, equivalent to a prop- erty owner's own employees. To the extent their holding does differ from Tri-County’s standard governing off-duty employees’ access to exterior nonworking areas, we doubt that the majority would ever find the “legitimate business reason” exception met. We hope they prove us wrong. Additionally, we emphasize the limited nature of today’s decision— i.e., it applies only to off-duty contractor employees’ access to non- working areas open to the public. A broader holding, coupled with Tri- County, would give off-duty contractor employees a greater right to access an employer’s property than its own off-duty employees have. See Tri-County, supra (holding that an employer may exclude its own off-duty employees from interior areas and exterior working areas as long as the employer has clearly disseminated a nondiscriminatory no- access rule). 29 New York New York, 356 NLRB at 913. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 property owner’s own employees than to nonemployee union organizers whose Section 7 access rights derive from the rights of employees who work on the property.” But even assuming that this is so, it is equally true that the property owner’s interest in excluding off-duty con- tractor employees is more similar to property owners’ interests in excluding nonemployees than to its interests relative to its own employees. As we detailed in Bexar I, the property owner may not have the same confidence in the integrity and self-discipline of contractor employees that it has in its own employees, and it may reasonably be concerned about the security of its property and the safety of per- sons rightfully thereon when contractor employees are off duty and not being supervised by the onsite contrac- tor. Indeed, the property owner may have little, if any, idea who the contractor employees are. Although con- tractor employees, unlike nonemployees, are not com- plete strangers to the property, their diminished contact with the owner and its property should reasonably cor- respond to lesser rights of access to the property when off duty than the property owner’s own employees en- joy.30 Indeed, our colleagues acknowledge, as they must, that the property owner “may not have invited the contractor em- ployees onto its property and . . . might not have the same control over the contractor employees’ conduct while on its property” as compared to the owner’s own employees. Nevertheless, they conclude that, for all intents and purpos- es, property owners do not have any greater right to exclude contractor employees than their own employees. Our colleagues attempt to minimize this significant fact by asserting that, “[t]hrough the voluntary and mutu- ally beneficial relationship between the property owner and the contractor, the property owner still has the legal right and practical ability to fully protect its interests through its contractual and working relationship with the contractor.”31 But, of course, the fact that the parties may 30 368 NLRB No. 46, slip op. at 8. We recognize that the off-duty contractor employees have their own Sec. 7 rights but emphasize that, if their employer, the contractor, did not have access to the property owner’s property, “it is axiomatic that neither would the contractor’s employees. The off-duty contractor employees were not hired by the property owner. Their only claim to access the property derives from the owner’s contract with a third-party contractor that employs them, independent of any decision made by the property owner.” Id., slip op. at 12. 31 Further, our colleagues’ citation to the contract between the Re- spondent and the Symphony in this case undermines their point. As they point out, the parties’ agreement “allows the Respondent to refuse admission or cause to be removed from the property ‘any disorderly or undesirable person,’” giving the Respondent rather broad authority to act to protect its property rights. (Emphasis added.) They also assert that this agreement would include Symphony employees. However, if enter into such a contract does not establish that property owners’ rights are in any way diminished in the absence of such a contract. Moreover, any contractual provision regulating off-duty access by employees of the contrac- tor, and the exercise of any right by the property owner under such provisions, presumably must conform to the standards set forth in the majority opinion. As shown, those standards effectively grant off-duty contractor em- ployees the same rights as employees of the property owner. CONCLUSION In Bexar I, the Board recognized that the reasoning behind the holding in New York New York and Simon DeBartolo did not properly balance off-duty contractor employees’ Section 7 access rights with the rights of private property and did not constitute “an accommoda- tion that causes as little destruction to private property rights as is consistent with maintaining employees’ Sec- tion 7 rights.”32 Although the D.C. Circuit did not en- force that decision, the court acknowledged that, “[a]s a conceptual matter,” the Board had properly sought “to identify those contractor employees with a sufficiently strong connection to the property to warrant the grant of [off-duty] access rights.”33 And, in remanding the case, the court recognized the viability of the Bexar I test and left open the possibility that the defects with its terms and application were curable. Our colleagues, however, claim that “Bexar I essentially stripped off-duty contrac- tor employees whose employer does not own the proper- ty where they work from having Section 7 rights at their workplace” and, accordingly, abandon the test in its en- tirety. These accusations are wholly unfounded and somewhat ironic considering the extent to which our col- leagues are willing to strip property owners of their rights today. Their decision does not reasonably ac- commodate the competing rights at issue as is required by the Supreme Court. Instead, they swing the pendulum so far to the other side as to preclude property owners from exercising any real control over their property as it pertains to off-duty individuals whom they do not em- ploy. Because their decision today fails to give any real the Respondent were to judge off-duty contractor employees as “disor- derly or undesirable” and attempt to enforce that provision by removing those off-duty contractor employees from its property, our colleagues would certainly find enforcement of that provision to be unlawful. In fact, they do so today. 32 368 NLRB No. 46, slip op. at 7. 33 Local 23, American Federation of Musicians, 12 F.4th at 783 (emphasis added). BEXAR COUNTY PERFORMING ARTS CENTER FOUNDATION D/B/A TOBIN CENTER FOR THE PERFORMING ARTS 21 acknowledgement of the rights of property owners, we dissent and decline to apply it here.34 Dated, Washington, D.C. December 16, 2022 ______________________________________ Marvin E. Kaplan, Member ________________________________________ John F. Ring, Member NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TOEMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf 34 Accordingly, absent an appropriate access standard to apply in light of the D.C. Circuit’s criticisms of the standard set forth in Bexar I, we decline to find that the General Counsel established a violation here. Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT prohibit and/or prevent you, including San Antonio Symphony employees, when off-duty from leafleting in nonworking areas open to the public of the Tobin Center property when that leafleting relates to wages, hours, or other terms and conditions of employ- ment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. BEXAR COUNTY PERFORMING ARTS CENTER FOUNDATION D/B/A TOBIN CENTER FOR THE PERFORMING ARTS The Board’s decision can be found at www.nlrb.gov/case/16-CA-193636 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.