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.
2

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. 
3

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 
4

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 thengoverning 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 
5

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 
6

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 
7

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 
8

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, 
9

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 
10

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 
11

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.
12

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 
13

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. 
14

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 
15

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 . . . 
16

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 
17

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 
18

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 
19

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.
20

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.