are ready yes good morning your orders and may it please the court matthew ginsberg on behalf of the petitioner local twenty three of the american federation of musicians your honor is this case demonstrates concretely the importance of the right of employees to engage in section seven activity at their principal workplace the musicians in this case routinely perform at the tobin center for the center's three principal performing arts companies the symphony the ballet and the opera there is no serious doubt that the tobin center and no other location constitutes the musicians principal work place throughout the annual performance season on the weekend in question the musicians start to stand on the sidewalk in front of the tobin center's main entrance to hand out leaflets to patrons who are attending the ballets opening weekend performance of check out skis sleeping beauty the leafless leaflets asked patrons to support the musicians request that the ballet employ musicians and members of the musicians union to perform live music to accompany the ballets dancer dancers rather than use pre court of music as the ballet had planned there was really no other location where the musicians could practically convey this message to their intended audience like most performing arts organizations the ballet is supported by a relatively small number of committed patrons and benefit benefactors who purchased subscriptions for the ballets annual seasons of performances and who make financial contributions to support the ballet's ongoing operation the musicians targeted the supporters with their leaflets because the musicians understood that the ballet cares a great deal about its audiences views on matters such as the use of live music and the musicians reasonably expected that many of the ballets most committed patrons and benefactors would be attending the opening weekend performances of the ballets new presentation yet despite the musicians strong connection to the tobin center and the fact that there was no other practical location where the music musicians could exercise their section seven rights the board up held the tobin center's decision to prohibit the musicians from leafleting on the sidewalk outside the center's main entrance mr ginsburg in new york new york why we recognize that the critical question left to the discretion of the board was quote whether individuals working for a contractor on another's premises should be considered employees or not employees of the property owner  does that suggest that it's would then the board's discretion to apply the same test to contractor employees as applied to the non employee union organizers and so we have noticed we have no yes they could apply a test that they came up with not this test for reasons i explain to find some contractor employees are essentially equivalent to non employees but they can't apply the test they articulated here because it is not rational it does not balance the property interest with the employee section seven interest it also is not the test that the board applied preening york new york which is what it says it's doing here but it's actually not the case and it's and it certainly we don't think can apply that test employees like these who have a very very strong connection to the workplace and and in any balancing ought to have some opportunity to the extent could be within the boards discretion but some upper to nitty if we were to agree with you that the application here works regularly at the property owner's premises was arbitrary as applied and that the exclusively requirement was arbitrary as a requirement what about the other ground the other available means is that defective yes alternative means of communicating the message and how so what's what's the attack on the well the attack on that is that in that it is applying the same test as in babcock and wilcox and leach mirror which is the test applied to non employee union organizers who have only a derivative interest and in exercising section seven rights on the property to two individuals who are employees who have personal non derivative interest in exercising their rights on the property the board here say these were derivative because they're not the employees of the tobin center  i'm not sure the board said that specifically but that we dispute that you know that the interests that at play here are non derivative interests now that obviously we agreed we acknowledge the relationship between the employees and the tobin center is one of employees and property owner like in new york new york but still the particular section seven interest that must be considered in the balance is a personal non directed of interest on lines that this gets back a little bit a question the dutch people are asking earlier because if if it's permissible to equate contractor employees to non employee organizers at least in some situations if it were miscible and then that's what the agency did here then it seems like it's at least within the zone of permissibility so your argument wouldn't be one that the agencies just barred from doing it on this criterion right that's correct so for example employees who had a very very limited list relationships of the property might in when the bouncing was complete end up with the same rights as not employee union organizers again that would not be the case in a case like this one where you have employees who are there routinely and  primarily on the facts in this case there just know that the board is just not permitted to come up with any test under which you know reasonable alternative means of communication could be taken into account in a way that ensures to the benefit of the property owner ok i'm sorry i perhaps i misunderstood that piece of the question before i think the board but perhaps could come up with such a test and in fact if you look  though the way i would think about it is that the exclusively part of the board's test looks at whether the employees primarily work there what it whether the strength of the relationship to the to the work which is a property  similar to and relies on cases like postal service where the and the dissents and bartolo where the question was is there an alternative location where they employees can exercise their section seven rights and so in a way the nd step of the board test here sounds in the same vein the problem with the test as the board has articulated it here though is that it is exactly those contractor employees who meet this very strict and we argue arbitrary test of regularly and exclusively who then have  to go on and yet again prove this reasonable alternative test which the board has already determined what is reasonable and what is not and it's a very difficult test to make so i mean the board could craft a test that takes into account reasonable alternatives that's just not the test that they've they've articulated here so tell us more about that here we have a record where on the one hand there's a discussion of alternative non trust the story means of going across the streets but then the board also throws them i think correct me if i'm wrong i think without any record evidence one way or the other about social media our mass media you know how how readily or effectively the of patrons could be targeted by that but they throw that into so what how should we we think about this you talk about r what are we what do we have to decide what should we decide on this issue well i think if you agree with our argument that the st test about the sufficiency of the connection to the property is is is arbitrary if i'm not as i'm not saying one of the other but to isolate the inquiry yes assume that we were turned to agree with you on the st part of it where then i don't think i need to reach that i don't think you need to reach the nd part of the test because you would you would i believe  the board and in doing so they could consider the test as a whole for and as for the reasons i explained there are good reasons to let the board consider the test as a whole on remand and that's because as you see it the alternative means only becomes a relevant inquiry if the relationship between the employees and the center is is tenuous in the way that analogizes it to the union members and well organizers in the well that would be that would be i think a reasonable way for the board to think about it but it's certainly not what the board did here i mean board is very clear here that they said you only reached the nd step if you  of the regularly exclusively test and just to be very clear about it we think the idea that you have that in contractor employees have to show that they exclusively work for their contractor at a set up for a property is totally test reasonable alternative means and the question becomes to suppose the board constructed this increase so that it's that there's two independent bases that anyone could look at you could look at regularity suspects and clytie or you could look at reasonable alternative means either one of them could be enough in any particular case and deem the property owner as having sufficient property based interest to exclude the contractor employees and here we find that both of them cut the same direction but we could have done it based on even ground that in that situation if we thought that the application of one of those regularity system is arbitrary then would you still say well you have to remain and or would you say well now there's another one that was also found to be in the property owner's favor and so we'd have to win both know the way i understand the board's test and i think that's quite clear is that you don't reach what i call what i'm calling step two your honor called step three the reasonable alternative that you don't even reach that if you don't are they independent are they potentially independent or is the board saying you can only ever get to two if there's regularity and exclusivity under one and i think if you are right that you can only ever get to two if the employer of the property owner wins on one a one b then i understand what you're saying but if the board is saying yeah that's typically how you do it but i mean obviously you can just get straight to two if the property owners going to win that are to anyway i don't i don't read the board's decision that way i think that they're very clear that you have to surmount one a and one b before you even get to two and  guess what i was asking before is is to tell us more in your view why i mean i think i understand that there's a reading of the board's opinion that runs that way and what i was saying was my understanding of that roughly was it's only when there is a non regular and non expand or non exclusive workplace at the premises that those workers then become much more end to the union organizer and therefore subject to that more readily matt employer analysis about alternative means because you don't usually apply for example to an alternative mean as in corrie to full employees of an employer at a workplace right correct so so that was sort of what i was posing as like asking is that your theory and i thought you were sent you were a little bit pushing back on that before so i'm just trying to understand your theory of the board's opinion of what the logic is that the alternative means inquiry only arises if the workplace is either not the regular place of work for these employees or not  that it wanted to a very to limit to a very great degree the right of contractor employees to exercise their rights on a proper rd party property owner's property so it was intentionally written so you both had to share regularity exclusive exclusivity and you had to show that no alternative means were available so you would not even reach step two without completing step one i think i may have created some confusion i understood you judge dillard to be asking whether there was another test that could theoretically the board in another case could articulate that would use the step two differently in a different manner the way that step two could ever be appropriate for contract employees and my answer to that was perhaps yes i mean that the board has discretion to put together a test and you could imagine a scenario where that was part of its test but it won't be this test this test we think is arbitrary for the reasons we said in the brief i know i'm out of time i'm happy to keep answering questions because you're just you know that a little bit is why is this test arbitrary assuming that these employees were were not regular employees at this site well then what's defective about this test so what's defective about the test is that it remember the background from discourse decision in new york new york two is that the board is requests has discretion but must require the bank must must accommodate the section seven interest in the property interest do you in that situation is this version of the alternative means an analysis still defective and if so why i guess my my understanding again of the board's decision is that if a particular set of contract employees did not meet the regularity part of the test you would not then go to part two now maybe it might be in that case that they could though the employees who having been told they are the functional equivalent of not employees could come in and make a straightforward leachman or claim say you know you've told us we're just like not employees so we're going to try to meet the leach near test but under the board the way the board has written its decision here we think it's very clear that you don't get to step two if you're not right you're right i think that was a question question i see the problem but let's say that the board is looking at facts and saying well we can either go on regularity or go on availability of alternative means and this is again we're just probing the sequence question and why why it sequin shell could the board without finding one way or the other on regularity say well in any event there were adequate alternative means because i guess i'm thinking going forward if we were to accept the board's test as consistent with the property rights and section seven and would it be open to employers simply to go straight to alternative means and just say well there's the internet well there's the internet and obviously this is something we can do to miss parks but in your view is no they  actually have to st be determined to be in this category of employees who are not regulated school simply so i think so just large so an employer i assume under the board's test articulated here could come in and say look we'll make it simple for you they don't meet prong two so you don't have to get into prong one that may be true for the employer but for the employees the employees can't this is what's what's so wrong with the test is if if you are not employee union organizer and leech from here all you have to do is comment not that it's easy but come in and say hey look there's no reasonable alternative means of communication available we have to be let on the property but the way the board has articulated that's test a contractor employee not only has to make that showing but that it has to go back and make the other showing that there are regularly and exclusively employed on the property so the way the board has articulated its test it holds contractor employees personal section seven interest to a higher standard than an employee union organizers and we just think that can't be right so i think you're right that an employer could do that but from the employees point of view you have to meet those problems of the test in order to be able to access the property to exercise your section seven rights and we think that that just cannot be my own but i have a hard time seeing this section seven right here i know it's given i know it's not a given i know it's not contested but it's like that movie or book seventy six or seven degrees whatever it is  separation you've got a property owner that's not the subject of the leaf the leaf thing you've got a licensee of that property owner who's beat beef which is characterized by the l j as quote to increase their employment opportunities in conjunction with the performances of the ballet nothing to do with tobin center it's beef is with not the property owner but with another license and i guess my question is this could be musicians hand out leaflets that attacked something that was  unfair to them they felt from majestic theater in other words they weren't being paid enough by majestic theatre not that not that they tobin center is not their employer and here's the problem i see new york new york those are employees who who worked in restaurants and supplied all the food for the casino they wanted to join the same union that the casino employees one were members of and the same union organizing so forth all the way down the line with these cases and now you have a case where one licensee is fighting another licensee that tote that the property owner has had doesn't have a dog in that fight and so what would stop these musicians from stopping the patrons of the tobin center with leaflets that say we don't make enough from the just it theater and and while i'm thinking about it another question is this sort of thrown off on the social media as the alternative access but if you look at the leaf it takes you to the to face book or face time whatever it is and we get there it's it's a plea to as they put it the big dog donors the ballet and the symphony and then they say quote even the tobin center the big dog donors of the tobin's so that's a long winded wind up how do my best so so i think you know they they i think the key point i want to emphasize here is that the musicians already had a relationship with all three of the principal resident companies so this is not like a an agreement with the ballet just like they did with the opera tobin center could have or they could have been there use agreement with tobin center all of them reach this issue of the canned music versus the live right i so i think the point i want to emphasize is that in the in the case law the demand to hire union members of the man on an employer to hire union members is right at the core of section seven protected activity so and phelps dodge which is a very early supreme court case and this court's decision and the nation casino resort these are i mean it's just it's not as you say it's not disputed in this case nobody right not right but but but but that demands a higher union members and here it's not a stretch at all as as we've shown and it's clear in the record you know the musicians they work for all these three of these organizations so yes they are not employees of the tobin center but this is the locus this is the physical location where this court labor dispute is taking place they're not talking about a labor dispute at some other location y the ballet only performs in fact at the tobin center it just so it's i guess i had a similar question to judge henderson which is that it's true that in this case the tobin center has arrangements with both the symphony and the ballet you can imagine a situation in which the ballet just performed elsewhere and the employees would have no particular association with that other place because as you rightly say that the symphony employees primarily perform at the top and center so then you can imagine a situation in which then t symphony employees want to go to the tobin center and try to put pressure on symphony consumers because there's some overlap between symphony consumers and ballet consumers who buy hypothesis work elsewhere who performs elsewhere and then as judge henderson points out from the perspective of the property owner from the tobin center they're probably thinking well why is all this happening on my property because i don't have anything to do with the ballet you're complaining about what the ballet is doing the ballets performing somewhere  but why am i being required to accommodate the leafletting on my property for a ballet that doesn't even perform here now here it's true that the ballet does perform there but you could sort of say well that happens to be true but it's still one extra step removed because the tobin center just happens to contract with both the symphony and the ballet and so it is a look it's a little different than the new york new york situation where the reason ark employees are there on the property is because those are  restaurants those are our food establishments and they're trying to tell the folks there will look are going to be unionized and this one just feels one step removed now one answer is even if the board could make something of one possible answers even if the board could make something about that there's nothing in the board's decision that suggests that there was any that they saw a distinction between the situation in the new york new york situation so at least you know the board up to spell out what i could matter but yeah i think you understand a factual point which i think and you what you just stated your honor is what i was going to say which is that the board does not base its decision in any way on that distinction and i would again this is a different arrangement the new york new york but i would i would push back against the idea that it's a less direct section seven interest i mean it's obviously it's just a different arrangement when you have three performing arts companies working at the property but what this court has instructed is you look at the property interest which is in this case is an interest that you know deals with management of the property and is mediated through the contractual relationships between the property owner and the employer's using the property and here is what i guess the difference is that these employees are not trying to unionize visiting the ballet right now it's i think it's clear from the records that they're trying to they are unionized already they're trying to obtain work whether directly with the ballet as if they could either work directly with the ballet as they did with the opera or through the symphony and i think the records quite clear that they've that they could either way would be  a way in which they were pursuing their own section seven entries and they ask you something mr ginsburg that you said that raises a hypothetical question you said the thrust of the leaflet was hi union members and as you said that i thought instead of canned music what would you say if they replaced it if the higher union members as opposed to robots i would think that would be a legitimate section seven complaint i i i mean i i guess i'm not sure that i see the distinction i agree that both are right at the core of section seven  seeking work for themselves whether it's instead of recorded music or really lots of words well in other words you would think higher union members as opposed to non non member  and nonunion members and here we have higher union members rather than using canned music and my question was and i know it's not raised here if assuming that's a section seven right would a section seven write even clearer if the message were higher union members as opposed to robots different deal if if next season when the opera wanted to perform macbeth again they decided to perform using robots i think that the musicians interest on being on the property and handing out leaflets saying use live music using union members not robots would be pretty close to identical to what was going on here right at the core of their own personal non derivative section seven rights ok board the board in this case reasonably exercised its discretion to revise that standard for determining when the off duty employees of an onsite contractor have a section seven right of access to the property not owned by their own employer and i guess i will kind of cut to the chase in a sense and address this idea that the board's test is arbitrary or overly strict the st part of the test to be clear and consistent with the supreme court's decision in hutchens really tests and evaluates the employee section seven interest in leafleting or engaging in section seven activity on this property so that is where the regularly and exclusively requirements come in at the nd stage of the test the board consider is and this is assuming that the employees do work regularly in exclusively on the property the board perceives to the  question of alternative means which is again consistent with the supreme court's decision in babcock and wilcox that that section seven rights surely should be accommodated but with as little destruction of property rights as dozen dependent can be deemed to be independently sufficient but just to isolate one and for a nd regularity some regularity that is the board's decision says that footnote fifty six dollars that for example a contractor employee who stocks vending machine machines once a week at the property owners facility works regularly and then the board's decision goes on to say regularity is not satisfied here because it's only twenty two dollars weeks i don't understand how that's consistent because of one out of seven as regular hou twenty two out of fifty two not regular i think in florida to record a specific record of this case your honor and when the record show is that these musicians have a variable weekly schedule sometimes they don't work at the t hundred are sometimes they work just a few hours a week so there's no there's nothing as far as i can tell you could conceive of regularity and two ways i grant you that one could be regularity means frequency and that's where one th and twenty two dollars out of fifty two you do a comparison you could have another conception regularity that's sort of like you know definite and predictable like it's monday wednesday friday as opposed to three days for you to choose and therefore we don't know but i see nothing that's true i don't understand how twenty two out of fifty two dollars is not regular but one out of seven and even one out of seven is overstating it because when the vending machine person goes they're not there for the entire day they're only there presumably for a few minutes to restock so you're talking about one day but a few minutes of that one day but still just grant you the full day but if one out of seven is regular and we're only talking about frequency how is twenty two dollars out of fifty two dollars not regular rate the poor as the  defines regular somewhat in opposition to sporadically here occasionally more on attack ad hoc basis and so i think the boards view in this case and this is clear from its application of the regularity requirement to the musicians the board looks at whether there is some kind of uniformity in terms of their literally regularity in their presence on the property and centerboard was yes looking at the twenty two weeks but i i think the board is also looking at how much whether there's any sort of uniformity that would it would you grant me then that i don't see uniformity in here at all i don't see it and i'm not even sure i'll get to this question too i don't even understand how uniform the could possibly matter but anyway as it would you believe grant me that if we're only talking if we're talking about what i take to be the normal understanding of regularity especially for purposes of what the connection is to the property which is frequency i can understand why frequency has direct bearing on significance of connection to property because if there's a difference between somebody who works at a property one week out of fifty two and somebody who works fifty one weeks out of fifty two that's just a different level of connection so for talking about frequency would you grant that it seems arbitrary to say on one hand that one out of seven is regular and twenty two dollars out of fifty two dollars is not you know in your your honor and i know even on frequency you would say it's ok to say that one out of seven is regular but twenty two dollars out of fifty two dollars is irregular the board is not applying a frequency requirement we're not i'm not asking you to assume that it is i'm just i don't i don't see how it's not a frequency requirement that all what i see in this opinion over and over is it's only twenty two out of fifty two which all eyes are read into that is frequency if that's the way i read it and i and i totally i'm not trying to deny you the argument that my premise is wrong  determination then one th has to be if one th is regular then twenty two dollars and if it's two has to be regular two then we have to get to whether regularity actually means something different from frequency like you know definite intervals and i bet a i don't see anything in the opinion that says that but even if it did i don't understand that because for example employers all the time take vacation they get two weeks of vacation no one knows when that vacation is going to happen they just pick when it's going to happen so the fact that you don't you don't exactly know what happens in a particular week i don't understand how that bears on the strength of the connection to a property the property in a way that would really to balance well the core of that see your honor that's precisely the point of the board's decision is distinction between protection employees i'm saying in the contract or if you know that they're going to work there the contractor is going to be there twenty two out of fifty two weeks and you know that there's thirteen weeks as to which they can't be there at all because it's a thirty nine week season so we're going to which twenty two out of the thirty nine weeks that's really the question right and overdone about which twenty two out of the thirty nine weeks what does it matter that you don't know which exact weeks it is if it's if it's twenty two out of thirty nine we know it's twenty two out of thirty nine why does it matter if we don't know exactly which weeks is going to be and by the way i'm not even sure that you don't know but you know if you assume that you do even if you seem that you don't why would that matter that forward really is i can your honor i don't want to reject the premise of your question but the board really in the winter not covered because they're coming and going it's not that they're not covered by the act they certainly they certainly could be and they in that with a cigarette in this case are this the question is just whether they have a section seven access right right and the board's position is that these these employees st of all start out as not employees of the property owner and that sort of the linchpin of the board's decision and because they're not employees of course the right of access is more restricted than the rights of employees of the prakriti owner and still corresponding to that it's a more it's a more demanding test in terms of the board understanding of how much latitude it has it had under new york new york one in your view could could the board just said ok these are not employees without that is that as as you read new york new york is that permissible under new york just to go all the way to the pole of non employee ray i think that the florence don't excuse me the courts two thousand and two new york new york decision does give the board that latitude to determine the status of these employees for access purposes and so the board and the court specifically said employees or not employees the board in new york new new york and this case shows kind of an intermediate position where it's it recognizes that these are employees of an employer so they are broadly speaking employees under the statute but so it's not but it's the board's position that they actually don't need to be between the poles of the non employees who are who have no section seven rights and legionnaire and employees of an employer that owns the premises they could be they could have no no showing fully under the statute or not employee union organizers and the board's decision is very rational in the sense that it takes that distinction into account just as much as it takes that is junction between the property owners employees and these contractor employees into account and that's both in new york new york and in this case so so in this in this case the tobin center did not have a bird  before they object when the record was being developed to show adequate alternative that's right so it can't have met that burden well on the record it didn't meet the burden though because it was able to and they the union was not aware whether it had to dispute numbers of leaflets or distances from where the traffic was go and our proportion of patrons who were getting out of valet parking on the what's the name of the the circle the auditorium circle or you know what i'm talking about yes they do and i don't know the name yeah so there but there are so there was no exploration of those facts before they all j auditorium circle well there was your honor in the sense somewhat in the sense that you know there is under new york new york this idea of interference with the property owners  these facts came in where the musicians leafleted and where they locking in grass any grass and things that you know i thought i thought that was that the the principal rule was simply we have we have no solicitation policy and therefore everything has to take place off our property and that wasn't contested that was that was the property owners property crime so there was no interference with its property and then you had the leaf litter outside the perimeter and then the question becomes there outside the perimeter so there's a full protection of the property rights are there are they being given adequate alternative means of serving their section seven access rights and that's not an inquiry is it under new york new york  flow i mean where were it do we do we know on this i'm looking at j four hundred and eighty six do we know on this exhibit there's there's numbers and letters on here where the sims where the right right and so that the musicians wanted to be flint and the perimeter around that plaza to get to catch patrons coming in from different points but they were actually able to reach at least some patrons from across the street from the tobin center so they were across the street it were either in veterans memorial park or crossed auditorium circle away from the building i believe it was across auditorium circle on the on the sidewalk there so people would be coming into valet park they would get out and they would walk straight over to the this is that the west toward the entrance right and then also there are also but not the record that was that was supplied to us in the appendix i don't think that part was included about where most people were coming from and parking and what they're walking past w the point is that there were are surrounding parking lot and there was valet parking and some of the patrons did enter by crossing the street to the tobin so they necessarily would have come in contact with  and they were crossing so so if the if this were different facts and they recognize he has a different hypothetical if there were freestanding theater that theater company leas property owner provides security and has a policy of nollie living in that case if the property owner is enforcing that against employees of the theater who want to leaflet on theater property but let's say like this sidewalks around the theater that are owned by the theater no no section seven rights because in fact in that it's a contractor of the property owner and that says they're employees of the theater company but there are but there are contractors with contract employees with the property owner they're not the employees of the property owner right so they're so in that sense they are they are the employees of a license of the property owner and i just don't understand what if anything would distinguish that case from this case and i understand all of the one a one b you know regular and exclusive but putting that aside you know and just looking at this access question why wouldn't the same access analysis ready and theoretically they could control within fair leasehold you know the what employees have rights to do and so on and then section seven would apply a little differently within the league i but i'm just thinking if i mean if i were a theater company and i want to add to provide the kind of i want to to rent you know lease a theater and one was offering me some security and a no handling policy and the other wasn't i would think you know few or fewer problems for me i'm going to i'm going to contract for the one that's giving me some sick security and i know bowing agreement and that would you know put this property are in the same relationship with with the employees as as the token here and i get i mean i'm a grant putting aside the fact that there are in fact multiple licensees at the top and center and so getting to the question about the the alternative means there is a mention in the there's no testimony about this i don't think although you'll correct me if i'm wrong about the use of social media or any finding of adequacy of kinds of social media but the board does talk about on the one hand avenues of distributing handouts from across the street but also about social and mass media  if the musicians here were not able to distribute leaflets across the street would could the n l r b have reached the same conclusion on this record that it reached because of the availability of  of public media social media i think that is the board's position is that in this case that those other avenues would have been reasonable alternatives and again and i think the board explores those some and where it talks about the alternative that news analysis in this case the employees were attempting to communicate with the general public and for that speculate about what would constitute reasonable alternative non trespasser a means and in every case or in any other case and the board is simply in this case saying that relied on by was a haze i can't remember but it was that was relied on there is a suggestion that as who city matters because in a non exclusive situations there are other places where the  seven rights can be exercised because there's other property right is that the way in which ethnicity matters or is there some other way because i don't understand as a rational matter  a decision that when employees work regularly in school and exclusively you have kind of an east texas court of situation that arises where they have no other place nor their workplace where they can exercise think that if you work on a property five weeks then the fact that you happen to work only only on that property for those five weeks somehow gives you a greater connection to a property than one in which you work for twenty two weeks but then you work for a handful league somewhere else to write so so then if are only talking about the fact that there's another avenue that's available another place another piece of property that's available for the extras section seven right then though there have to be some kind of assessment of whether in fact the other places available or how it stacks up because otherwise why does it why does it matter if b c i'm saying that it's in theory possible that there are some other place now we have no idea what the strength of the connection is to that other place though and it could be that that other place if you're only working there for one hour a year and you're spending ninety nine percent every time at a location a than one percent of it on a location b then it could very well be the case i mean if i were a property owner b i would probably be thinking wait a minute that means that the leaflet has to occur on my property instead of the place where ninety nine percent of the activity occurs that i'm not understanding how that squares unless you take into account the availability of the other property but maybe i'm missing something well  the word isn't getting into those trying to assess mature owner about how long people stand as a proportion of all their working time at various different properties before it is really laying down kind of a branch line rule that know ordered to in order to acquire an access rights these employees have to work exclusively at this property so even if the work when or elsewhere unfortunately that is sufficient to sort of break the necessary connection  but it has to be but there has to be a reason that matters now of course mathematically you're right that there's a difference between you know ninety percent and one hundred percent that's just math that's a mathematical identity and nobody could dispute that but there has to be a reason why the difference between ninety and percent of one hundred percent matters in a way that's come enter at with the values that are in the balance and i guess it's not apparent to me why that difference matters unless it's because there's another potential forum that's available and if that's true then the other potential form it seems to me has to be available or else there's no difference re the poor it really didn't address in this case that's the situation that you're talking about your honor because in this case it was abundantly clear that there these employees don't work exclusively on the tobin center's property for this contractor and that sort of where the analysis ended and as far as not sure it's just a practical question it seems to me as a theoretical one and that to to focus on exclusivity there has to be some reason why that focus makes sense it can't be just arbitrary you can't just say well we care about exclusivity why because i saw somebody matters i mean that's just not a logical so it doesn't tell you anything and so asked me some underlying value that's being served by focusing on michael so many of the underlying value is there is the potential availability of another form it just seems to me that there would have to be some the board actually is concerned with whether this is the only form like that it's looking at the connection to this property and not the availability of other properties do you see what i'm saying be that the board is literally concerned with what it said in its decision whether there is no other place and that and that is all the board is not looking at here are they are available at their places it's training the question a little bit differently and that is the resilience of that from the perspective of the leafletting employees or from the perspective of the property owner on his property the leafletting occurs i think the board is looking at the perspective of the employees if there is no the board is concerned about whether these employees truly have no other place and so that it's sort of but it also does of course take into account the property owners right to exclude and the fact that the property owner could well say why my property and they answer would be because these employees have no other place to exercise their section seven rights and that is why some some dislocation arbitrary and its application to the facts of this case with words on reasonable that you should bring down this case to the board you don't need to reach the nd step no guidance on that we don't need to give any guidance on nd step well i think i mean some of the and i and absolutely i this court should give guidance and what i what i would say is that the reason the st step is dispositive here is that you can't rationally do the nd step the balance in a real way of determining whether alternative means of communication are reasonable without knowing the strength of the section seven interest at issue so and that is guidance that this court could provide to the board so  here for example the board said you know these were communications to the general public so it could be done across the street or by social media that's fine we don't think that's what the record shows you know here the employees the musicians were seeking to specifically communicate with people who are entering the ballet for the opening performance of the ballet sure they caught some of them across the street but it's the a l j found you know standing closer to the entrance was going to catch basically all of them and imagine you know the boards rule applies to the synth the musicians if they had a contract to speak with the symphony over pay for example and if an hour before the symphonies performance they handed out leaflets saying hello patrons you know please you know us where the musicians please support us in our contract to speak with the symphony what you know please call the symphony under the board's rule they couldn't do that and yet that's exactly the same section seven activity that was at issue here so if there are no further questions at the location i mean i will continue if you like but i you know i didn't think so no i just i think i understand that point yeah so so and we think that you know that that can't possibly be the case and so that any any balancing at the nd step needs to take into account what section seven interest is at issue here it's clear that the issue is a personal non derivative interest of employees who work at the location and so you know that's that is certainly some guidance that the court  the board on remand how the board articulate its test as we've discussed throughout this argument would be you know there's a number of ways they could do it but the point is that they have to have a test that considers those the property interest and the section seven interest  have the same ability to proceed to to communicate with members of the public as you do with your own employer and so these patrons can make use of the patrons are fair game  what more are about the nature of the interests would cast light on alternative means i get your point about the ballet patrons being the target and so you have to assess whether the alternate means allows them to reach understand bots but are there so actors that would bear on the strength of the section seven right that you're thinking of that much more case by case barriers in court the sections have been great well i mean there are other factors but they don't particularly come into play here because here all the musicians were doing were standing outside non working area of the property and it's very clear from the boards in this court's caseload that that's that's generally a place that's appropriate to communicate with customers of your employer you know new york new york lean very heavily on i t t and that's what that was about  so there are a number of questions that can be raised and those cases in nova southeastern is one of the cases discussed that's from this court there was some discussion about the particular location where the employer does not have a lease hold interest but there's you know the the employee was leafleting in the parking lot he was leafing to his co employees and i said that's you law you the board said and you affirmed that that was an appropriate locus because that's where the communication notes naturally would take place so there are those sorts of concerns there that run throughout the board's decisions over many years in this court's decisions but again i think in this case speaking to the customers as they enter the  about the labor dispute is outside a non working area is firmly within the board in this court's sense of what is a traditional an appropriate place for employees to exercise their section seven rights interests of the employees which in this case we think are very strong as they as they are this is where they this is where they work if there are no further questions that will rest that we have yes thank you very much for your time thank you counsel thank you to both counsel will take this case under submission