## Facts

- Bexar County Performing Arts Center Foundation operated the Tobin Center for the Performing Arts in San Antonio, Texas.
- The San Antonio Symphony leased and used space at the Tobin Center for performances.
- Symphony musicians were employees of the Symphony (not the Tobin Center) and were represented by Local 23, American Federation of Musicians under a collective-bargaining agreement.
- Under the labor agreement, the musicians worked 30 weeks during a 39-week performance season, and they performed at the Tobin Center for 22 of those weeks, making the Tobin Center a regular workplace for them.
- The musicians learned Ballet San Antonio planned to use recorded music rather than live Symphony musicians for a production at the Tobin Center, reducing musicians’ work opportunities.
- Off-duty Symphony musicians engaged in peaceful handbilling in the outdoor plaza area at the Tobin Center during a Ballet performance, telling patrons they would hear recorded music rather than live music.
- Tobin Center representatives contacted police and directed the musicians to leave Tobin Center property and relocate off the property.
- The union filed an unfair labor practice charge alleging the Tobin Center interfered with the musicians’ Section 7 rights in violation of NLRA Section 8(a)(1).
- An administrative law judge found a violation.
- In an earlier decision (2019), the Board reversed under a revised access standard for off-duty contractor employees; the D.C. Circuit remanded.
- In this supplemental decision on remand (2022), the Board reconsidered the governing access rule and the lawfulness of the Tobin Center’s exclusion.

## Issues

1. What standard governs when a property owner may exclude off-duty employees of an onsite contractor who regularly work on the property and seek to engage in Section 7 activity there?
2. Under the proper standard, did the Tobin Center violate Section 8(a)(1) by removing off-duty Symphony musicians who were handbilling on Tobin Center property?

## Decision

- The Board abandoned the revised access standard adopted in the prior Board decision in this case (often referenced as *Bexar County I*).
- The Board returned to the prior, court-approved test from *New York New York Hotel & Casino*, 356 NLRB 907 (2011), enforced by the D.C. Circuit.
- Applying *New York New York*, the Board affirmed the judge’s finding that the Tobin Center violated Section 8(a)(1) by barring the off-duty Symphony employees from its property while they engaged in protected handbilling.
- The Board issued a supplemental decision and order providing standard remedies for an 8(a)(1) violation, including cease-and-desist relief and notice posting.

## Legal Principles

- Section 7 protects employees’ right to engage in concerted activity for mutual aid or protection, including peaceful handbilling related to their working conditions.
- Off-duty employees of an onsite contractor who regularly work on the property have a protected interest in engaging in Section 7 activity at that workplace, even when the property owner is not their direct employer.
- Under *New York New York Hotel & Casino*, a property owner may lawfully exclude such off-duty contractor employees from engaging in Section 7 activity on the property only if the owner shows:
  - the activity significantly interferes with the use of the property; or
  - exclusion is justified by another legitimate business reason, including the need to maintain production and discipline.
- The mere availability of other places to communicate (such as public sidewalks) does not, standing alone, justify excluding off-duty contractor employees from engaging in Section 7 activity at the place where they work.
- When a property owner removes contractor employees engaged in peaceful Section 7 activity without showing significant interference or a legitimate business justification, the exclusion violates Section 8(a)(1).

## Conclusion

In its supplemental decision on remand, the Board reinstated the *New York New York Hotel & Casino* access test and held the Tobin Center violated NLRA Section 8(a)(1) by calling police and ejecting off-duty Symphony musicians who peacefully handbilled on venue property about the use of recorded music, because the Tobin Center did not show significant interference with its property use or another legitimate business reason for exclusion.


Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts, 372 N.L.R.B. No. 28 (2022)