Local 23, American Federation of Musicians v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 19, 2020 Decided August 31, 2021
No. 20-1010
LOCAL 23, AMERICAN FEDERATION OF MUSICIANS,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
On Petition for Review of an Order of
the National Labor Relations Board
Matthew J. Ginsburg argued the cause for petitioner. With
him on the briefs was James B. Coppess.
Milakshmi V. Rajapakse, Attorney, National Labor
Relations Board, argued the cause for respondent. With her on
the brief were Peter B. Robb, General Counsel, Ruth E.
Burdick, Acting Deputy Associate General Counsel, David
Habenstreit, Assistant General Counsel, and Julie B. Broido,
Supervisory Attorney.
Before: SRINIVASAN, Chief Judge, and HENDERSON and
PILLARD, Circuit Judges.
Opinion for the Court filed by Chief Judge SRINIVASAN.

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Concurring opinion filed by Circuit Judge HENDERSON.
SRINIVASAN, Chief Judge: The San Antonio Symphony
contracts with the Tobin Center for the Performing Arts to
perform most of its shows at the Tobin Center. After the Tobin
Center barred the Symphony’s musicians from distributing
leaflets on the premises, the musicians’ union filed an unfair
labor practices charge. On review of the charge, the National
Labor Relations Board revised its framework defining when a
property owner can prohibit an onsite contractor’s employees
from accessing the property to engage in labor organizing
activity.
The Board established a new test that would afford access
rights to employees like the Symphony musicians in a narrower
set of circumstances. The musicians’ union does not dispute
the Board’s general discretion to revise its standards defining
the rights of an onsite contractor’s employees to access
property for organizing activity. Instead, the union principally
contends that the Board’s new approach is arbitrary, both on its
own terms and as applied in this case. We agree, and we
therefore remand to the Board to reconsider the issue consistent
with this opinion.
I.
A.
The San Antonio Symphony leases performance space
from the Tobin Center for the Performing Arts, a facility owned
and operated by Bexar Performing Arts Center Foundation.
The Symphony musicians, whose organizing rights are at issue
here, are employees of the Symphony, not the Tobin Center.

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The Symphony, along with the Tobin Center’s two other
primary residents, the Ballet San Antonio and the Opera San
Antonio, uses the Center’s performance venues pursuant to a
“Use Agreement.” The Use Agreement entitles the Symphony
to 22 performance weeks at the Tobin Center each year. In a
typical performance week, the Symphony rehearses for three
days (Tuesday to Thursday) and performs for three days
(Friday to Sunday).
The Symphony musicians’ terms of employment are set
forth in a collective bargaining agreement (CBA) between the
Symphony and the musicians’ union, Local 23, American
Federation of Musicians. The CBA guarantees the musicians
30 paid weeks in an annual season, spread out over a 39-week
period (September to June). The Symphony musicians also
perform work for the Ballet San Antonio, often also at the
Tobin Center, but that work does not count towards the 30 paid
weeks guaranteed by the CBA. Because the CBA entitles the
musicians to 30 paid performance weeks with the Symphony
but the Use Agreement provides for only 22 performance
weeks for the Symphony at the Tobin Center, the Symphony
musicians spend eight weeks at other venues such as the
Majestic Theater, the Laurie Auditorium at Trinity University,
the Barshop Jewish Community Center, and various churches
and high schools in the San Antonio area.
B.
During the 2016-2017 season, the Symphony musicians
faced something of a work shortage because of financial
difficulties. That year, the musicians agreed to a three-week
furlough, reducing their paid performance weeks to 27.
Adding to the challenges for the Symphony musicians, the
Ballet went forward with a plan to use recorded music rather

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than live Symphony music at certain of its shows at the Tobin
Center.
When the Ballet opted to use recorded music in its
February 2017 productions of Tchaikovsky’s Sleeping Beauty,
Local 23 decided to take action. Local 23 planned to engage in
leafleting at the Ballet’s performances at the Tobin Center to
raise awareness and exert pressure on the Ballet to employ
Symphony musicians in the future. The leaflets informed
patrons that they would not hear a live symphony and
encouraged them to insist on live music.
Shortly before the first February performance, ten to
fifteen Local 23 members (primarily Symphony musicians)
gathered in the Tobin Center’s front plaza and began to hand
out the leaflets to Ballet patrons. Tobin Center staff informed
the Local 23 members that they could not leaflet anywhere on
Tobin Center property. The staff suggested that the leafleters
move to the public sidewalk across the street from the Tobin
Center and distribute the leaflets there. The Local 23 members
complied. The same sequence of events—attempted leafleting
at the Tobin Center followed by compliance with a staff request
to move across the street—played out at the three subsequent
performances of Sleeping Beauty.
C.
Local 23 filed unfair labor practice charges against Bexar
(d/b/a the Tobin Center), and the Board’s General Counsel
subsequently brought a complaint. The ALJ applied the then-
governing framework set out by the National Labor Relations
Board in New York New York, LLC, 356 NLRB 907 (2011).
Under that standard, a property owner may exclude a
contractor’s employees “who are regularly employed on the
property” and who seek to engage in Section 7 organizational

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activity “only where the owner is able to demonstrate that their
activity significantly interferes with his use of the property or
where exclusion is justified by another legitimate business
reason.” Id. at 918–19. The ALJ determined that the
Symphony musicians worked regularly at the Tobin Center and
that the Center had not shown significant interference with its
use of the property or an alternative reason for exclusion. Thus,
the ALJ found “that Respondent violated Section 8(a)(1) in
preventing symphony employees from distributing flyers on
the sidewalk in front of the Tobin Center between February 17
and 19, 2017.” J.A. 33.
A divided Board reversed. The Board majority overruled
New York New York and announced a new standard that
broadens the circumstances in which a property owner can
prohibit an onsite contractor’s employees from accessing the
property for labor organizing activity:
[A] property owner may exclude from its
property off-duty contractor employees seeking
access to the property to engage in Section 7
activity unless (i) those employees work both
regularly and exclusively on the property and
(ii) the property owner fails to show that they
have one or more reasonable nontrespassory
alternative means to communicate their
message.
Bexar Cnty. Performing Arts Ctr. Found., 368 NLRB No. 46,
at *3 (Aug. 23, 2019), J.A. 8–9. Applying that new standard,
the Board found: (i) the Symphony employees did not work
regularly or exclusively at the Tobin Center; and (ii) even
assuming otherwise, the Symphony employees had alternative
nontrespassory channels of communication to reach the general

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public, namely, the sidewalk across the street as well as
traditional and social media. See id.
The Board thus dismissed the General Counsel’s
complaint. Local 23 now petitions for review of the Board’s
decision.
II.
On review, “we will uphold the Board’s decision if its
ruling is not arbitrary, capricious, or founded on an erroneous
application of the law, and if its factual findings are supported
by substantial evidence.” Advanced Life Sys. Inc. v. NLRB, 898
F.3d 38, 43 (D.C. Cir. 2018). We conclude that the Board’s
decision is arbitrary in the way that it implements its new
standard for determining when a property owner may prohibit
an onsite contractor’s employees from conducting labor
organizing activity on the premises.
A.
Section 7 of the NLRA guarantees employees “the right to
self-organization, to form, join, or assist labor organizations . . .
and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection.” 29
U.S.C. § 157. When the exercise of those Section 7 rights
comes into conflict with an employer’s property rights, the
Board must find “a proper accommodation between the two.”
Cent. Hardware Co. v. NLRB, 407 U.S. 539, 543 (1972).
In that regard, the Supreme Court has drawn a distinction
between the property owner’s employees, on one hand, and
nonemployee union organizers, on the other hand. See
Lechmere, Inc. v. NLRB, 502 U.S. 527, 532 (1992). When it
comes to the property owner’s employees, the “ability to

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restrict pro-union activity by an off-duty employee legally on
the premises—in a non-work area—is quite limited.” DHL
Express, Inc. v. NLRB, 813 F.3d 365, 374 (D.C. Cir. 2016). But
in the case of nonemployee union organizers, a property owner
can generally prohibit their labor organizing activities on the
premises. Id.
This case involves a third category of persons seeking
access to property for the conduct of Section 7 activities: the
employees of an entity that contracts with the property owner
to perform work on the premises. Those employees do not
work for the property owner itself, but instead work for an
onsite contractor.
On two previous occasions, we have reviewed the Board’s
efforts to define the circumstances in which an onsite
contractor’s employees can access the premises for the conduct
of labor organizing activity. See New York New York, LLC v.
NLRB, 313 F.3d 585 (D.C. Cir. 2002) (NYNYI); New York New
York, LLC v. NLRB, 676 F.3d 193 (D.C. Cir. 2012) (NYNYII).
We first addressed the issue in NYNYI. There, the Board had
treated contractor employees as equivalent to the property
owner’s employees, with the same broad rights of access. 313
F.3d at 587. We concluded that the Board’s approach was
inadequately explained. Id. at 588–91.
On remand, the Board revised its approach and established
the standard applied by the ALJ in this case. See New York
New York, 356 NLRB at 918–19. The Board no longer gave
an onsite contractor’s employees the same rights of access as
the property owner’s own employees; nor did the Board lower
the access rights of contractor employees to those of
nonemployee organizers. Instead, the Board adopted an
intermediate approach, under which, as noted above, a property
owner could exclude contractor employees from conducting

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organizing activity on the premises “only where the owner is
able to demonstrate that their activity significantly interferes
with his use of the property or where exclusion is justified by
another legitimate business reason.” NYNYII, 676 F.3d at 198
(Henderson, J., concurring) (quoting New York New York, 356
NLRB at 918–19). We sustained the Board’s revised standard.
See id. at 196 & n.2.
In the present case, the Board has now chosen to revisit the
issue a third time, this time on its own initiative. Rather than
bring an onsite contractor’s employees fully up to the level of
the property owner’s employees or fully down to the level of
nonemployee organizers, the Board continues to apply an
intermediate approach. But within that intermediate zone, the
Board now seeks to grant a property owner broader rights of
exclusion than the approach we upheld in NYNYII. See Bexar,
368 NLRB No. 46, at *2–3, J.A. 8–9.
The Board’s new test, as set out above, operates in two
steps. It grants a property owner the right to “exclude from its
property off-duty contractor employees seeking access to the
property to engage in Section 7 activity unless” two conditions
are both satisfied: “(i) those employees work both regularly
and exclusively on the property and (ii) the property owner fails
to show that they have one or more reasonable nontrespassory
alternative means to communicate their message.” Id. at *3,
J.A. 8–9. Local 23 challenges both of those steps as conceived
and applied, and we consider the two steps in order.
B.
The first step calls for assessing whether the contractor
employees work “regularly” and “exclusively” on the property.
If not, they are treated as equivalent to nonemployee organizers
and thus generally lack access rights. As the Board explains it,

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the logic of the first step is that only contractor employees who
meet those criteria have “a sufficient connection to” the
property to merit Section 7 access rights. See Bexar, 368
NLRB No. 46, at *9, J.A. 12. While contractor employees who
regularly and exclusively work on the property are not
employees of the property owner, neither are they “‘strangers’
to or ‘outsiders’ on the property.” Id. at *11, J.A. 14.
As a conceptual matter, the Board acts in accordance with
our decisions in aiming to identify those contractor employees
with a sufficiently strong connection to the property to warrant
the grant of access rights. See NYNYI, 313 F.3d at 590. But
the Board’s implementation of that aim in this case is arbitrary,
both as to the condition that contractor employees work
“regularly” on the property and as to the condition that they
also work “exclusively” on the property.
1.
We begin with the Board’s use of “regularly.” The Board
“will consider contractor employees to work ‘regularly’ on the
owner’s property only if the contractor regularly conducts
business or performs services there.” Bexar, 368 NLRB No.
46, at *3, J.A. 9. To work irregularly, by contrast, is to work
“occasionally, sporadically, or on an ad hoc basis.” Id. at *11,
J.A. 14.
In finding the regularity criterion unmet here, the Board
relied on the Symphony’s seasonal schedule (“only 39 weeks
of the year”) and the number of weeks within that season that
the Symphony performs at the Tobin Center (“only 22 weeks
of the year”). Id. at *14, J.A. 16–17. As a result, the Board
reasoned, “[f]or well over half the year, the Symphony is not
present” at the Tobin Center. Id. at *14, J.A. 17. On that basis
alone, the Board concluded that the Symphony musicians did

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not work regularly at the Tobin Center: “the Symphony[] did
not regularly conduct business or perform services there
because it only used the property for performances and
rehearsals 22 weeks of the year.” Id. at *3, J.A. 9.
The essential measure of regularity under that approach is
the frequency of the work. If, instead of being present for less
than half the year, the musicians had performed more
frequently at the Tobin Center, they evidently would be
deemed to have worked there regularly. However permissible
that understanding of regularity may be as an abstract matter,
though, it cannot be squared with statements the Board makes
elsewhere in its decision. For example, the Board notes that “a
contractor employee who stocks vending machines once a
week at the property owner’s facility works ‘regularly’ on the
property.” Id. at *9 n.56, J.A. 13. But if frequency is the salient
measure of regularity, then back-of-the-envelope arithmetic
confirms that working once a week (1/7) cannot count as
regular presence if working 22 weeks of the year (22/52) does
not. Defining regularity by way of frequency—as the Board
did in applying the test here—renders the Board’s decision
internally inconsistent, and, as a result, arbitrary.
Perhaps recognizing that problem, the Board’s briefing
before our court attempts to reconceptualize the regularity
inquiry as evaluating whether contractor employees access the
property at “constant” or “definite” intervals. Under that
definition, the Board can classify the vending machine operator
as regularly on the property and the more-frequently present
Symphony musicians as irregularly so. When the vending
machine operator works onsite every Monday morning, she
exhibits the necessary definiteness of appearance. The
Symphony musicians, on the other hand, have a seasonal
schedule and are often on the property in some months and not

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at all during others. Their presence thus could be seen as
“irregular.”
There are two fundamental problems with that alternative
conception of regularity. First, it is an after-the-fact alternative.
It simply was not the basis of the Board’s decision on the issue
of regularity. Rather, as explained, the Board’s reasoning in its
decision hinged solely on the frequency of the musicians’
presence, making no mention of any lack of constancy in the
intervals between their appearances. And it is well-established
that we cannot uphold an agency decision based on a post hoc
justification. See SEC v. Chenery Corp., 332 U.S. 194, 196
(1947).
Second, the Board at any rate fails to explain how the
approach it newly introduces in its briefing before our court
corresponds with an employee’s connection to the property in
any relevant way. After all, an employee (such as a
schoolteacher) who frequently works long hours on the
premises but takes occasional week-long breaks and two
months off in the summer may not work on the property at
constant or definite intervals. Nonetheless, he would seem to
have a strong connection to the property—or at least stronger
than the vending machine operator who comes to the property
only one day a week (and even then, only for a small fraction
of that one day). 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. Bexar, 368 NLRB No. 46, at *11, J.A. 14. The post
hoc explanation of regularity in the Board’s briefing, then,
cannot help the Board even if we could consider it.

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2.
The first step of the Board’s test requires that a contactor’s
employees not only work “regularly” on the property but also
work “exclusively” on the property. Here, the Board found that
the Symphony musicians did not work exclusively at the Tobin
Center because “[t]hey also performed at the Majestic Theater
and other venues throughout San Antonio, such as churches
and high schools.” Bexar, 368 NLRB No. 46, at *14, J.A. 16.
In defining “work exclusively” in that way, the Board
failed to explain how the requirement connects to the logic of
the first step of the test. Like the regularity requirement, the
Board’s exclusivity requirement aims to capture those
employees who have a sufficiently strong connection to the
property owner’s premises to warrant access rights. And the
Board contends that removing the exclusivity requirement
would make “off-duty access to the owner’s property possible
for a myriad of contractor employees, some of whom spend
only a small fraction of their workweek on the property
owner’s property.” Id. at *11, J.A. 14. But exclusivity, as the
Board conceives of it, is an ill-suited proxy for connection to
the property.
The Board’s understanding of exclusivity looks only at the
contractor employee’s work for a particular contractor: the
Board “will consider contractor employees to work
‘exclusively’ on the owner’s property if they perform all of
their work for that contractor on the property, even if they also
work a second job elsewhere for another employer.” Id. at *3,
J.A. 9. As a result, if a contractor employee works only a
fraction of her workweek with a particular contractor but all of
that work occurs on the property owner’s site, the employee
satisfies the Board’s test. Conversely, if the employee works
virtually her entire workweek at the property owner’s property

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yet occasionally works at a different site for the same
contractor, she fails the Board’s test. 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. And neither the Board’s decision nor its subsequent
briefing offers any way to square the consequences of the
exclusivity requirement with its stated purpose.
The Board’s implementation of the exclusivity condition,
then—as with its implementation of the regularity condition—
is arbitrary. 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.
C.
We now turn to the second step of the Board’s new test.
Notably, the test’s two steps work in combination in the
following sense. A property owner can exclude contractor
employees from conducting Section 7 activity on the premises
unless both steps are satisfied: (i) the employees work regularly
and exclusively on the property; and (ii) “the property owner
fails to show that they have one or more reasonable
nontrespassory alternative means to communicate their
message.” Bexar, 368 NLRB No. 46, at *3, J.A. 8–9. In other
words, the test grants the property owner the right to exclude
contractor employees if either of the two steps is unsatisfied.
In this case, the Board determined at the first step that the
employees did not work regularly and exclusively on the
property. And, as the Board recognized, once it deemed the
first step unsatisfied, it “could end the inquiry” right there.

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Id. at *14, J.A. 17. Had it done so, however, its decision could
not have been sustained given that its application of the first
step was arbitrary, for the reasons we have explained.
The Board, though, opted not to end its inquiry upon
finding the first step unsatisfied. Rather, the Board “assum[ed]
arguendo” that the Symphony’s musicians worked regularly
and exclusively at the Tobin Center, and it went on to assess
whether the Tobin Center prevailed under the second part of
the test, finding that the Tobin Center did. Id. That then raises
the question whether we can sustain the Board’s decision based
on its application of the second step alone, notwithstanding the
arbitrariness of the first step. We conclude we cannot, as the
Board’s application of the second step in this case was itself
arbitrary.
To understand why, it is necessary to appreciate the second
step’s design and function as the Board conceives of it. That
step, again, is satisfied if “the property owner fails to show . . .
one or more reasonable nontrespassory alternative means.” Id.
at *3, J.A. 9. Note that the property owner bears the burden in
that regard: the question is whether “the property owner can
prove that the contractor employees have reasonable
alternative means for communicating their message.” Id. at
*11, J.A. 15.
The allocation of the burden of proof to the property owner
is a critical component of the test’s second step. Recall that the
object of the first step is to select certain onsite contractor
employees—those who work regularly and exclusively on the
premises—and afford them greater access rights for Section 7
activity than nonemployee organizers. As the Board expressed
the point, “contractor employees who work regularly and
exclusively on the property owner’s property have some Sec. 7
access rights and are not utter ‘strangers’ to the property like

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nonemployee union organizers.” Id. at *11 n.68, J.A. 15. And
for nonemployee union organizers “[t]o gain access” to the
property, “the union has the burden of showing that no other
reasonable means of communicating its organizational
message to the employees exists.” Lechmere, 502 U.S. at 535
(citation omitted).
In that light, the pivotal (and sole) difference between the
Lechmere test for nonemployee organizers and the Board’s
new test for contractor employees who work regularly and
exclusively on the property is the allocation of the burden.
Under the Lechmere test, the nonemployee organizers must
show the absence of reasonable alternative means in order to
gain access to the property. Under the Board’s new test, by
contrast, it is the property owner that must show the existence
of reasonable alternative means in order to prohibit access to
the property. Absent that burden shift to the property owner,
the Board’s new test would be incoherent: contractor
employees who distinguish themselves from nonemployee
organizers by working regularly and exclusively on the
property would gain nothing from doing so. If not for the
burden shift, they, just like nonemployee organizers, would
still have to prove that there are no reasonable alternative
means of communicating their message.
The Board underscored the central role of the burden shift
in its decision for precisely those reasons: “we emphasize that
where contractor employees work regularly and exclusively on
the owner’s property and thus have potentially greater rights of
trespassory access than nonemployee strangers, we place the
burden on the property owner to show that the alternative
means of communication is reasonable.” Bexar, 368 NLRB
No. 46, at *15, J.A. 18. Cf. Lavine v. Milne, 424 U.S. 577, 585
(1976) (“Where the burden of proof lies on a given issue . . .

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frequently may be dispositive to the outcome of the
litigation.”).
Having emphasized the essential nature of the burden shift,
however, the Board did not then follow through and apply any
burden shift in its decision. For that reason, the Board’s
application of the test’s second step was arbitrary.
As an initial matter, it bears reiterating that the preexisting
New York New York test applied by the ALJ—the test displaced
by the new standard announced by the Board in this case—did
not contain any requirement to show the presence (or absence)
of alternative means of communication. As a result, there had
been no presentation of arguments or development of the
record addressed to whether the Tobin Center could carry its
burden to show the availability of reasonable nontrespassory
means for the Symphony musicians to communicate their
message: the parties had no awareness that the Board would
establish a test containing such a requirement. In that situation,
the Board might have remanded the case to enable the ALJ to
develop a record and hear the parties’ respective positions on
the appropriate resolution of the case under the Board’s newly
minted test. But instead of doing so, the Board applied its new
test without hearing any presentation of competing views or
eliciting any record submissions addressed to whether the
Tobin Center could carry its (previously unknown) burden.
In finding that the Tobin Center prevailed under the test’s
second step, the Board relied on two alternative means by
which the Symphony musicians could communicate their
message. First, the Board observed that the Symphony
musicians “were able to leaflet on a public sidewalk across the
street from the [Tobin Center’s] property.” Bexar, 368 NLRB
No. 46, at *14, J.A. 17. Second, the Board stated that the
musicians “also had other channels they could have used to

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convey their message, including newspapers, radio, television,
and social media, such as Facebook, Twitter, YouTube, blogs,
and websites.” Id. The Tobin Center, however, bore no burden
with regard to proving either of those ostensibly reasonable
alternative means, undermining the basic rationale of the test’s
second step per the Board’s own conception of it.
Consider the Board’s reliance on the Symphony
musicians’ presumed access to social and traditional media. It
is self-evident that the Tobin Center did not—and was not
required to—carry the burden of introducing that alternative
means or demonstrating that it is in fact a reasonable alternative
to communicating with the musicians’ target audience directly
where it physically gathered. That alternative was never
mentioned by the Tobin Center at any point in the proceedings,
much less did the Tobin Center present any proof of the
alternative’s viability or efficacy. And because the Tobin
Center never surfaced that alternative, Local 23 of course had
no occasion to respond to it with a competing assessment or
contrary evidence. The first time the alternative was even aired
as a possibility was when the Board invoked it in the decision.
In that context, the Board plainly did not “place the burden on
the property owner to show that the alternative means of
communication is reasonable.” 368 NLRB No. 46, at *15,
J.A. 18. To the contrary, the Board entirely relieved the Tobin
Center of any burden whatsoever.
What about the remaining alternative means mentioned by
the Board—that of the Symphony musicians’ leafleting across
the street from the Tobin Center? With that alternative, too, the
Board did not place the burden on the Tobin Center, even
though the coherence of its test is predicated on doing just that.
To be sure, the record contained evidence bearing on that
alternative because the Symphony musicians’ leafleting across
the street was part of the factual background of the case. The

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ALJ thus recounted that the Tobin Center had required the
musicians “to distribute their leaflets off the Tobin Center
property, such as the sidewalks across the street from the main
entrance,” and “[a]t these locations the leafleters were able to
distribute a number of handbills, possibly several hundred.”
Bexar, 368 NLRB No. 46, at *18, J.A. 31 (ALJ decision).
But even if the record contained evidence on which the
Tobin Center could have relied had it been required to prove
that leafleting across the street was a reasonable alternative
means of communication, the Board did not impose any such
burden on the Tobin Center. Instead, the Board simply deemed
the requisite showing to have been made without requiring the
Tobin Center to carry its burden to make it. After all, a party
generally cannot be found to have carried its burden on an issue
unless and until the opposing party has an opportunity to show
why the burden is unmet. See Fed. R. Civ. P. 50(a)(1) (court
can resolve an issue against a party as a matter of law only if
the “party has been fully heard on [the] issue”). And here,
Local 23 had no opportunity to make an argument or develop
the record as to whether the Tobin Center could prove that the
distribution of leaflets across the street genuinely amounted to
a reasonable alternative means.
For instance, the ALJ, after describing that the
Symphony’s musicians had been required to distribute their
leaflets across the street, observed that, “[o]f course, the
leafleting may have been even more effective had the leafleters
been able to distribute the handbills closer to the entrance of
the Tobin Center, where the density of patrons would have
likely been greater than across the street.” Bexar, 368 NLRB
No. 46, at *18 n.2, J.A. 31. The Board did not enable Local 23
to develop arguments or evidence on the reasonableness of the
alternative, which would have been part and parcel of placing
the burden on the Tobin Center. Those arguments might have

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addressed matters such as the distance from the public
sidewalks to the theater entrances and the proportion of theater
patrons who used the sidewalks, which could be thought to bear
on whether leafletting from the public sidewalks qualifies as a
reasonable alternative means.
None of this is to suggest that, had the burden in fact been
allocated to the Tobin Center, the Tobin Center would have
been unable to establish the reasonableness of the alternative
of distributing leaflets across the street. The Tobin Center
might well have done so. The point, rather, is that the Tobin
Center did not in fact face that burden, and Local 23 did not in
fact have any associated opportunity to show that the Tobin
Center’s burden was unmet. And when the Board fails to
impose a burden that it views to be critical to the coherence of
its own test, we have no choice but to reject the Board’s
application of its test as arbitrary.
On remand, the Board may decide whether to proceed with
a version of the test it announced and sought to apply in this
case or to develop a new test altogether. In either case, the
Board’s implementation of its approach presumably would be
subject to judicial review.
* * * * *
For the foregoing reasons, we grant Local 23’s petition for
review and remand to the Board for further proceedings
consistent with this opinion.
So ordered.

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KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
I join the court’s opinion because I believe the National Labor
Relations Board (Board) misapplied its new framework for
contractor employees’ access rights to this dispute. I write
separately to emphasize my view that the Board’s new
framework is neither arbitrary nor capricious per se. The Board
may overrule its precedent “as long as it provides a reasoned
explanation for its change of course.” NLRB v. CNN Am., Inc.,
865 F.3d 740, 750 (D.C. Cir. 2017) (citing FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 515 (2009)). We do not
necessarily require a more detailed explanation when an
agency changes course, however, as “it suffices that the new
policy is permissible under the statute, that there are good
reasons for it, and that the agency believes it to be better, which
the conscious change of course adequately indicates.” Fox
Television Stations, 556 U.S. at 515. Here, had the Board
adequately explained and applied the “exclusivity” and
“alternative means” prongs of its new framework, I believe we
would have been obliged to affirm its decision.

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