[00:00:01] Speaker 00:
Case number 20-1010, Local 23, American Federation of Musicians Petitioner versus National Labor Relations Board.

[00:00:10] Speaker 00:
Mr. Ginsburg for the petitioner, Ms.

[00:00:12] Speaker 00:
Raja Bakshi for the respondent.

[00:00:15] Speaker 03:
Good morning, counsel.

[00:00:16] Speaker 03:
Mr. Ginsburg, please proceed when you're ready.

[00:00:18] Speaker 02:
Yes, good morning, your honors, and may it please the court, Matthew Ginsburg on behalf of the petitioner, Local 23 of the American Federations of Musicians.

[00:00:28] Speaker 02:
Your honors, this case demonstrates concretely the importance of the right of employees to engage in section seven activity at their principal workplace.

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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.

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There's no serious doubt that the Tobin Center and no other location constitutes the musician's principal workplace throughout the annual performance season.

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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 were attending the ballet's opening weekend performance of Tchaikovsky's Sleeping Beauty.

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The leaflets asked patrons to support the musician's request that the ballet employ members of the musician's union to perform live music to accompany the ballet's dancers, rather than use pre-recorded music as the ballet had planned.

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There was really no other location where the musicians could practically convey this message to their intended audience.

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Like most performing arts organizations, the ballet is supported by a relatively small number of committed patrons and benefactors who purchase subscriptions for the ballet's annual seasons of performances and who make financial contributions to support the ballet's ongoing operation.

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The musicians targeted these supporters with their leaflets because the musicians understood that the ballet cares a great deal about its audience's views on matters such as the use of live music.

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And the musicians reasonably expected that many of the ballet's most committed patrons and benefactors would be attending the opening weekend performances of the ballet's new presentation.

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Yet despite the musician's strong connection to the Tobin Center and the fact that there was no other practical location where the musicians could exercise their Section 7 rights, the board upheld the Tobin Center's decision to prohibit the musicians from leafletting on the sidewalk outside the center's main entrance.

[00:02:24] Speaker 04:
Mr. Ginsburg, in New York 1, 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 non-employees of the property owner.

[00:02:45] Speaker 04:
Does that suggest that it's within the board's discretion to apply the same test?

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to contractor employees as applied to the non-employee union organizers in Leechmore?

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So we have no dispute that the board has discretion in this area to change its rule.

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even who equate Section 7 employees like these to non-employees in Lichmere?

[00:03:11] Speaker 02:
Well, if I can take your question in two bites, yes, they could apply a test that they came up with, not this test for reasons I'll explain, to find some contractor employees are essentially equivalent to non-employees.

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But they can't apply the test they articulated here because it is not rational, it does not

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balance the property interest with the employees section seven interest.

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It also Is not the test that the board applied pre New York, New York, which is what it says it's doing here, but it's actually not the case.

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And it's, and it's certainly we don't think can apply that test to employees like these who have a very, very strong connection to The workplace and and in any balancing ought to have some opportunity, the extent

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could be within the board's discretion, but some opportunity.

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If we were to agree with you that the application here of the 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?

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Is that defective?

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the alternative means of communicating the message and how so?

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What's the attack on that?

[00:04:31] Speaker 02:
Well, the attack on that is that it is applying the same test as in Babcock and Wilcox and Leachmere, which is a test applied to non-employee union organizers who have only a derivative interest in exercising Section 7 rights on the property to individuals who are employees who have personal non-derivative interest in exercising their rights on the property.

[00:04:54] Speaker 04:
Didn't the board here say these were derivative because they're not the employees of the Tobin Center?

[00:05:00] Speaker 02:
I'm not sure the board said that specifically, but that we dispute that you know that the interest that at play here are non derivative interest.

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Now the obviously we agree, we acknowledge the relationship between the employees and the Tobin Center.

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is one of employees and property owner, like in New York, New York.

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But still, the particular Section 7 interest that must be considered in the balance is a personal non-derivative interest, unlike that.

[00:05:29] Speaker 03:
This gets back a little bit to the question that Judge Pillard asked earlier, because if it's permissible to equate contractor employees to non-employee organizers, at least in some situations, if it's permissible,

[00:05:44] Speaker 03:
then that's what the agency did here, then it seems like it's at least within the zone of permissibility.

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So your argument wouldn't be one that the agency's just barred from doing it on this criterion, right?

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That's correct.

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So for example, employees who had a very limited loose relationship to the property might, when the balancing was complete, end up with the same rights as non-employee union organizers.

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Again, that would not be the case in a case like this one, where you have employees who are there

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routinely and primarily.

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So you think on the facts of this case, there's just no the board is just not permitted to come up with any test under which the, you know, reasonable alternative means of communication could be taken into account in a way that in order to the benefit of the property owner.

[00:06:33] Speaker 02:
OK, I'm sorry.

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Perhaps I misunderstood that piece of the question before.

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I think the board perhaps could come up with such a test.

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And in fact, if you look, I guess 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.

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What is the strength of the relationship

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To the to the work to the property similar to and relies on cases like postal service where the and and the descent into Bartolo where the question was, is there an alternative location.

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where the employees can exercise their section seven rights.

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And so in a way, the second step of the board's test here sounds in the same vein.

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The problem with the test is 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 no reasonable alternative test, which the board has already

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determined what is reasonable and what is not.

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And it's a very difficult test to make.

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So I mean, the board could craft a test that takes into account reasonable alternatives.

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It's just not the test that they've articulated here.

[00:07:46] Speaker 04:
So tell us more about that.

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Here we have a record where, on the one hand, there's a discussion of alternative non-trespasory means of going across the street.

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But then the board also throws in, I think, correct me if I'm wrong,

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without any record evidence one way or the other about social media or mass media, you know, how readily or effectively these patrons could be targeted by that, but they throw that into.

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So how should we think about this?

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You talk about

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I'm just throwing a lot of things on the table, but you talk about that it's an illusory difference to shift the burden on this on this prong from the property owner to from the employees to the property owner.

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What do we have to decide and what should we decide on this issue?

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Well, I think if you agree with our argument that the first test about the sufficiency of the connection to the property is arbitrary.

[00:08:57] Speaker 04:
I'm not saying one or the other, but to isolate the inquiry, yes.

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Assume that we were to agree with you on the first part of the test.

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Then I don't think you need to reach the second part of the test because you would, I believe, remand to the board

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And in doing so, they could consider the test as a whole.

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And for the reasons I explained, there are good reasons to let the board consider the test as a whole on remand.

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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 tenuous in the way that analogizes it to

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The union members in leach mirror and well organizers in late.

[00:09:46] Speaker 02:
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.

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I mean, board was very clear here that they said you only reach the second step.

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If you surmount the first step of the regularly and exclusively test and just to be very clear about it.

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We think the idea that

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that contractor employees have to show that they exclusively work for their contractor at a property is totally arbitrary, has no basis in the board's case law.

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So if you find that, I'm sorry, Your Honor.

[00:10:19] Speaker 03:
Right, so if we assume that you're right, just assume for arguments purposes that you're right on regularity and exclusivity, then there's this third prong of the test, reasonable alternative means.

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And the question becomes, so suppose the board constructed its inquiry so that it said, there's two independent bases that anyone could look at.

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You could look at regularity slash exclusivity, or you could look at reasonable alternative means.

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Either one of them could be enough in any particular case to deem the property owner as having sufficient property-based interest to exclude the contractor employees.

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And here we find that both of them cut in the same direction, but we could have done it based on either ground.

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That in that situation, if we thought that the application of one of those regularity exclusivities arbitrary, then would you still say, well, you have to remand?

[00:11:06] Speaker 03:
Or would you say, well, no, there's another one that was also found to be in the property owner's favor.

[00:11:13] Speaker 03:
And so we'd have to win both.

[00:11:15] Speaker 02:
No, the way I understand the board's tests, and I think that's quite clear, is that you don't reach 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 get past the first step of regular and exclusive.

[00:11:30] Speaker 03:
I think that's true.

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I mean, so let's just, just, just to be clear, let's say one a one B and two.

[00:11:34] Speaker 03:
Okay.

[00:11:34] Speaker 03:
So we're on the same numerical framework.

[00:11:37] Speaker 02:
Yes.

[00:11:37] Speaker 03:
I guess.

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So the question would be, are, is the one grouping and two, are they independent?

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Are they potentially independent?

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Or is the board saying you can only ever get to two if there's regularity and exclusivity under one.

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I see if you're right that you can only ever get to two if the property owner wins on 1A, 1B, then I understand what you're saying.

[00:12:06] Speaker 03:
But if the board is saying, yeah, that's typically how you do it.

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But I mean, obviously, you can just skip straight to two if the property owner is going to win their two anyway.

[00:12:15] Speaker 02:
I don't, I don't read the board's decision that way.

[00:12:18] Speaker 02:
I think that they're very clear that you have to surmount one a and one B before you even get to to And I guess what I was asking before is, is to tell us more in your view.

[00:12:30] Speaker 04:
Why, I mean, I think I understand that there's a reading of the board's opinion that runs that way.

[00:12:37] Speaker 04:
And what I was saying was My understanding of that roughly was it's only when

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there's a non-regular and or non-exclusive workplace at the premises that those workers then become akin to the union organizers in Lechmere and therefore subject to that more readily met employer

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analysis about alternative means, because you don't usually apply, for example, to an alternative means inquiry to full employees of an employer at a workplace, right?

[00:13:15] Speaker 04:
Correct.

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So that was sort of what I was posing as like asking, is that your theory?

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And I thought you were a little bit pushing back on that before.

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So I'm just trying to understand your theory of the board's opinion and what the logic is that the alternative means inquiry

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only arises if the workplace is either not the regular place of work for these employees or not the exclusive place.

[00:13:42] Speaker 02:
OK, I'm going to try to sort all this out because I apologize if I've confused you, Your Honor.

[00:13:46] Speaker 02:
So two things.

[00:13:47] Speaker 02:
One is we're very clear, our reading of the board's decision is that you only reach step two if the employees meet steps one A and step one B in the chief judge's

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Schema.

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So, and the reason the board and I think it's clear from the particularly the outset of the board's decision, the reason the board wrote the its test this way is that it wanted to to very to limit to a very great degree, the right of contractor employees to exercise the rights on a proper third party property owners property.

[00:14:21] Speaker 02:
So it was intentionally written.

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So you both had to show regularity and exclusive exclusivity.

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and you had to show that no alternative means were available.

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So you would not even reach step two without completing step one.

[00:14:34] Speaker 02:
I think I may have created some confusion.

[00:14:37] Speaker 02:
I understood you, Judge Pilar, 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, whether step two could ever be appropriate for contract employees.

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And my answer to that was,

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Perhaps, yes.

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I mean, the board has discretion to put together a test.

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And you could imagine a scenario where that was part of its test.

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But it wouldn't be this test.

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This test, we think, is arbitrary.

[00:15:04] Speaker 02:
For the reasons we said in the brief, I know I'm out of time.

[00:15:06] Speaker 02:
I'm happy to keep answering questions.

[00:15:08] Speaker 04:
Could you just tell us a little bit why is this test arbitrary, assuming that these employees were not regular employees at this site?

[00:15:20] Speaker 04:
then what's defective about this test?

[00:15:25] Speaker 02:
So what's defective about the test is that it, remember the background from this court's decision in New York, New York too, is that the board has discretion, but must accommodate the section seven interest and the property interest.

[00:15:40] Speaker 04:
Here, the exclusivity test is so stringent, if you ever work- I was saying, I'm actually on purpose putting aside the exclusivity prong, just saying assume they fail the regularity prong.

[00:15:52] Speaker 04:
They're really just not regularly employed there.

[00:15:55] Speaker 04:
Do you, in that situation, is this version of the alternative means analysis still defective?

[00:16:04] Speaker 04:
And if so, why?

[00:16:08] Speaker 02:
I guess 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.

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Now, maybe it might be in that case that the employees who have been told they are the functional equivalent of non-employees could come in and make a straightforward leach mirror claim.

[00:16:29] Speaker 02:
You know, you've told us we're just like non-employees, so we're going to try to meet the Leachmere test.

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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 regularly employed.

[00:16:41] Speaker 03:
Now, just to be- That seems like that has to be right, because for the way the board's constructed the inquiry, the property owner has to win on both regularity and exclusivity in order to not get to two.

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Otherwise.

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Right.

[00:16:54] Speaker 04:
I guess.

[00:16:55] Speaker 04:
Right.

[00:16:55] Speaker 04:
You're right.

[00:16:56] Speaker 04:
That was a non-question question.

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I see the problem.

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But let's say that the board is looking at facts and saying, well, we could either go on non-regularity or go on availability of alternative means.

[00:17:11] Speaker 04:
And this is, again, we're just probing the sequence question and why it's sequential.

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Could the board, without finding one way or the other on regularity,

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say, well, in any event, there were adequate alternative means.

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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 7, 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?

[00:17:46] Speaker 04:
And obviously, this is something we can ask to Ms.

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Rajapakse.

[00:17:52] Speaker 04:
in your view is no, they couldn't.

[00:17:54] Speaker 04:
They actually have to first be determined to be in this category of employees who are not regularly exclusively.

[00:18:03] Speaker 02:
So I think, so Judge Pilar, 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.

[00:18:12] Speaker 02:
They don't meet test prong two, so you don't even have to get into prong one.

[00:18:17] Speaker 02:
That may be true for the employer, but for the employees,

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The employees can't.

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This is what's what's so wrong with the test is if if you are a non employee union organizer and leach me or all you have to do is come in, not that it's easy, but come in and say, Hey, look, there's no reasonable alternative means of communication available.

[00:18:32] Speaker 02:
We have to be led on the property.

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But the way the board has articulated its test.

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A contractor employee not only has to make that showing, but then it has to go back and make the other showing that they're regularly and exclusively employed on the property.

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So the way the board has articulated its test is it holds contractor employees who have personal Section 7 interests to a higher standard than non-employee union organizers.

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And we just think that can't be right.

[00:18:56] Speaker 02:
So I think you're right that an employer could do that.

[00:19:00] Speaker 02:
But from the employee's point of view, you have to meet both prongs of the test in order to be able to access the property to exercise your Section 7 rights.

[00:19:07] Speaker 02:
And we think that that just cannot be correct as not on the continuum between Republic Aviation and Lechmere.

[00:19:15] Speaker 02:
So thank you.

[00:19:17] Speaker 02:
Any further questions?

[00:19:18] Speaker 02:
If I could have a minute or two for rebuttal.

[00:19:20] Speaker 02:
Judge Henderson has a question.

[00:19:21] Speaker 02:
Yes.

[00:19:22] Speaker 01:
I have questions.

[00:19:23] Speaker 01:
I may be on a frolic of my own, but

[00:19:27] Speaker 01:
I have a hard time seeing the section seven right here.

[00:19:30] Speaker 01:
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, six or seven degrees, whatever it is, of separation.

[00:19:40] Speaker 01:
You've got a property owner that's not the subject of the leafleting.

[00:19:45] Speaker 01:
You've got a licensee of that property owner whose beef, which is characterized by the ALJ as quote,

[00:19:55] Speaker 01:
to increase their employment opportunities in conjunction with the performances of the ballet, nothing to do with Tobin Center.

[00:20:03] Speaker 01:
It's beef is with not the property owner, but with another licensee.

[00:20:09] Speaker 01:
And I guess my question is this, could these musicians hand out leaflets that attacked something that was unfair to them they felt

[00:20:26] Speaker 01:
from majestic theater.

[00:20:29] Speaker 01:
In other words, they weren't being paid enough by majestic theater.

[00:20:34] Speaker 01:
Not that they were using canned music like the ballet was.

[00:20:43] Speaker 02:
You mean that could they hand out leaflets at the Tobin Center about another employer?

[00:20:50] Speaker 01:
Well, the Tobin Center is not their employer.

[00:20:58] Speaker 01:
And here's the problem I see.

[00:21:01] Speaker 01:
New York, New York, those Arc employees who worked in restaurants and supplied all the food for the casino, they wanted to join the same union that the casino employees were members of and the same

[00:21:20] Speaker 01:
union organizing, so forth, all the way down the line with these cases.

[00:21:24] Speaker 01:
And now you have a case where one licensee is fighting another licensee that the property owner doesn't have a dog in that fight.

[00:21:36] Speaker 01:
And so what would stop these musicians from stopping the patrons of the Tobin Center

[00:21:50] Speaker 01:
with leaflets that say, we don't make enough from majestic theater.

[00:21:56] Speaker 01:
And while I'm thinking about it, another question is this, you've sort of thrown off on the social media as the alternative access, but if you look at the leaflet, it takes you to Facebook or FaceTime, whatever it is, and when you get there, it's

[00:22:18] Speaker 01:
It's a plea to, as they put it, the big dog donors of the opera, the ballet, and the symphony.

[00:22:27] Speaker 01:
And then they say, quote, even the Tobin Center, the big dog donors of the Tobin Center.

[00:22:35] Speaker 01:
So that's a long-winded windup.

[00:22:38] Speaker 02:
Well, I'll do my best.

[00:22:39] Speaker 02:
So 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.

[00:22:52] Speaker 02:
So this is not like a stranger employer at the Tobin Center in the ballet.

[00:22:57] Speaker 02:
They regularly perform for the ballet, as for the opera, as for the symphony.

[00:23:00] Speaker 01:
OK, but they're a stranger as to the fight between the two licensees.

[00:23:06] Speaker 01:
I mean, the musicians could have had an agreement with the ballet, just like they did with the opera.

[00:23:14] Speaker 01:
Tobin Center could have, or they could have in their use agreement with Tobin Center, all of them reached this issue of the canned music versus the live music.

[00:23:29] Speaker 02:
Right.

[00:23:30] Speaker 02:
So I think the point I want to emphasize is that in the case law, a demand to hire union members, a demand on an employer to hire union members, is right at the core of Section 7 protected activity.

[00:23:43] Speaker 02:
So in Phelps Dodge, which is a very early Supreme Court case, in this court's decision in Venetian Casino Resort,

[00:23:51] Speaker 02:
These are, I mean, it's just, it's not, as you say, it's not disputed in this case, nobody.

[00:23:55] Speaker 02:
Right, right.

[00:23:56] Speaker 02:
But, but, but, but that demand to hire union members and here.

[00:24:00] Speaker 02:
It's not a stretch at all as we've shown and is clear in the record, you know, the musicians.

[00:24:06] Speaker 02:
For all these all three of these organizations.

[00:24:10] Speaker 02:
So yes, they are not employees of the Tobin Center, but this is the Locus.

[00:24:14] Speaker 02:
This is the physical location where this core labor dispute is taking place.

[00:24:18] Speaker 02:
They're not talking about a labor dispute at some other location.

[00:24:22] Speaker 02:
The ballet only performs, in fact, at the Tobin Center.

[00:24:25] Speaker 03:
I guess I had a similar question to Judge Anderson, which is that it's true that in this case, the Tobin Center has arrangements with both the symphony and the ballet.

[00:24:35] Speaker 03:
You could imagine a situation in which the ballet just performed elsewhere.

[00:24:39] Speaker 03:
And the employees would have no particular association with that other place, because as you rightly say, the symphony employees primarily perform at the Tobin Center.

[00:24:49] Speaker 03:
So then you could imagine a situation in which then the symphony employees want to go to the Tobin Center and try to put pressure on symphony consumers.

[00:24:57] Speaker 03:
because there's some overlap between symphony consumers and ballet consumers who, by hypothesis, work elsewhere, who are performed elsewhere.

[00:25:05] Speaker 03:
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?

[00:25:13] Speaker 03:
Because I don't have anything to do with the ballet.

[00:25:15] Speaker 03:
You're complaining about what the ballet is doing.

[00:25:18] Speaker 03:
The ballet is performing somewhere else.

[00:25:21] Speaker 03:
but why am I being required to accommodate the leafletting on my property for a ballet that doesn't even perform here?

[00:25:29] Speaker 03:
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.

[00:25:41] Speaker 03:
And so it's a little different than the New York, New York situation where the reason ARC employees are there on the property is because those are ARC

[00:25:51] Speaker 03:
restaurants.

[00:25:52] Speaker 03:
Those are ARC food establishments, and they're trying to tell the folks there, well, look, ARC ought to be unionized.

[00:25:59] Speaker 03:
And this one just feels one step removed.

[00:26:00] Speaker 03:
Now, one answer is, even if the board could make something, one possible answer is even if the board could make something of that, that there's nothing in the board's decision that suggests that there was any, that they saw a distinction between this situation and the New York, New York situation.

[00:26:14] Speaker 03:
So at least, you know, the board would have to spell out why that could matter.

[00:26:17] Speaker 03:
But I think you understand the factual point, which I think

[00:26:20] Speaker 02:
I hope I'm not mischaracterizing it.

[00:26:22] Speaker 02:
And what you just stated, Your Honor, is what I was going to state, which is that the board did not base its decision in any way on that distinction.

[00:26:30] Speaker 02:
And I would, again, this is a different arrangement than New York, New York, but I would push back against the idea that it's a less direct Section 7 interest.

[00:26:38] Speaker 02:
I mean, it's obviously, it's just a different arrangement when you have three

[00:26:42] Speaker 02:
performing arts companies working at the property.

[00:26:45] Speaker 02:
But what this court has instructed is you look at the property interest, which is in this case is an interest that deals with management of the property and is mediated through the contractual relationships between the property owner and the employers using the property.

[00:27:00] Speaker 04:
And here- I guess a difference is that these employees are not trying to unionize vis-a-vis the ballet.

[00:27:10] Speaker 02:
Right.

[00:27:11] Speaker 02:
The one that no it's it's I think it's clear from the record that they're trying to they are unionized already they're trying to obtain work, whether directly with the ballet as they did with the opera.

[00:27:24] Speaker 02:
They could either work directly with the ballet as they did with the opera or through the symphony.

[00:27:29] Speaker 02:
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 interests.

[00:27:39] Speaker 01:
Let me ask you something, Mr. Ginsburg, that you said that raises a hypothetical question.

[00:27:46] Speaker 01:
You said the thrust of the leaflet was higher union members.

[00:27:52] Speaker 01:
And as you said that, I thought instead of canned music, what would you say if they replaced, if the higher union members, as opposed to robots,

[00:28:08] Speaker 01:
I would think that would be a legitimate Section 7 complaint.

[00:28:22] Speaker 02:
I mean, I guess I'm not sure that I see the distinction.

[00:28:28] Speaker 02:
I agree that both are right at the core of Section 7.

[00:28:33] Speaker 02:
These are employees seeking work for themselves, whether it's instead of recorded music or robots.

[00:28:41] Speaker 01:
Well, in other words, you would think higher union members as opposed to non-member union, non-union members.

[00:28:51] Speaker 01:
And here we have higher union members rather than using canned music.

[00:28:57] Speaker 01:
And my question was, and I know it's not raised here, assuming that's a Section 7 right, would a Section 7 right be even clearer if the message were higher union members as opposed to robots on an assembly line, let's say?

[00:29:21] Speaker 02:
Perhaps.

[00:29:24] Speaker 02:
I guess I think, as the record shows, the musicians here signed a separate collective bargaining agreement with the opera to perform Macbeth.

[00:29:33] Speaker 02:
They reached a different deal.

[00:29:35] Speaker 02:
If next season, when the opera wanted to perform Macbeth again, they decided to perform using robots,

[00:29:42] Speaker 02:
I think that the musicians' interest on being on the property and handing out leaflets saying, use live music, use 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 7 rights.

[00:30:01] Speaker 01:
Okay.

[00:30:03] Speaker 03:
Thank you.

[00:30:04] Speaker 03:
Thank you, Mr. Ginsburg.

[00:30:06] Speaker 03:
We'll hear from Roger Potsky now, and we'll give you some rebuttal time.

[00:30:09] Speaker 03:
Thank you.

[00:30:10] Speaker 03:
Mr. Roger Potsky.

[00:30:12] Speaker 05:
Thank you, Your Honor.

[00:30:12] Speaker 05:
May it please the court?

[00:30:13] Speaker 05:
My name is Milakshmi Rajapaksa, and I'm counsel for the National Labor Relations Board.

[00:30:19] Speaker 05:
The board, in this case, reasonably exercised its discretion to revise its standard for determining when the off-duty employees of an on-site contractor have a Section 7 right of access to the property not owned by their own employer.

[00:30:34] Speaker 05:
And I guess I will kind of cut to the chase, in a sense,

[00:30:40] Speaker 05:
address this idea that the board's test is arbitrary or overly strict.

[00:30:45] Speaker 05:
The first part of the test, to be clear, consistent with the Supreme Court's decision in Hudgens, really tests and evaluates the employee's Section 7 interest in leafleting or engaging in Section 7 activity on this property.

[00:31:03] Speaker 05:
So that is where the regularly and exclusively requirements come in.

[00:31:08] Speaker 05:
At the second stage of the test, the board considers, and this is assuming that the employees do work regularly and exclusively on the property, the board proceeds to the second question of alternative means, which is again consistent with the Supreme Court's decision in Babcock and Wilcox, that Section 7 rights surely should be accommodated

[00:31:30] Speaker 05:
But with as little destruction of property rights as possible.

[00:31:34] Speaker 03:
Can I direct you to the first part of the test then and what we called 1A and 1B versus 2.

[00:31:39] Speaker 03:
So let's just say 1A is regularity, because I just want to talk about regularity for a second.

[00:31:45] Speaker 03:
And then there's going to be some questions about how all these interrelate and whether 2 does independent.

[00:31:49] Speaker 03:
can be deemed to be independently sufficient, but just to isolate 1A for a second, regularity.

[00:31:54] Speaker 03:
So in regularity, the board's decision says at footnote 56 that, for example, a contractor employee who stocks vending machines once a week at the property owner's facility works regularly.

[00:32:07] Speaker 03:
And then the board's decision goes on to say, regularity is not satisfied here because it's only 22 weeks.

[00:32:13] Speaker 03:
I don't understand how that's consistent, because if one out of seven is regular, how is 22 out of 52 not regular?

[00:32:20] Speaker 05:
I think the board looked at the record, the specific record in this case, Your Honor, and what the record shows is that these musicians have a variable weekly schedule.

[00:32:31] Speaker 05:
Sometimes they don't work at the Tobin Center at all.

[00:32:33] Speaker 05:
Sometimes they work just a few hours a week.

[00:32:35] Speaker 03:
So there's nothing, as far as I can tell.

[00:32:39] Speaker 03:
You could conceive of regularity in two ways.

[00:32:41] Speaker 03:
I grant you that.

[00:32:42] Speaker 03:
One could be regularity means frequency.

[00:32:45] Speaker 03:
And that's where 1 7th and 22 out of 52 you do a comparison.

[00:32:49] Speaker 03:
You could have another conception of regularity that's

[00:32:53] Speaker 03:
sort of like, you know, definite and predictable, like it's Monday, Wednesday, Friday, as opposed to three days for you to choose.

[00:33:00] Speaker 03:
And therefore, we don't know.

[00:33:01] Speaker 03:
But I see nothing in the board's decision at all that talks about that second form of regularity.

[00:33:06] Speaker 03:
It's all about frequency.

[00:33:08] Speaker 03:
That's and when they apply the test to these facts, all the board says is it's only 22 weeks.

[00:33:15] Speaker 03:
That's all that's said.

[00:33:17] Speaker 03:
And if that's true, I don't understand how 22 out of 52 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.

[00:33:28] Speaker 03:
They're only there presumably for a few minutes to restock.

[00:33:30] Speaker 03:
So you're talking about one day, but a few minutes of that one day, but still, I'll just grant you the full day.

[00:33:37] Speaker 03:
But if one out of seven is regular and we're only talking about frequency, how is 22 out of 52 not regular?

[00:33:44] Speaker 05:
Right, the board defines regular somewhat in opposition to sporadically or occasionally or on an ad hoc basis.

[00:33:56] Speaker 05:
And so I think the board's 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 this property.

[00:34:14] Speaker 05:
And so the board was, yes, looking at the 22 weeks, but I think the board is also looking at whether there's any sort of uniformity.

[00:34:23] Speaker 03:
Would you grant me then that I don't see uniformity in here at all?

[00:34:27] Speaker 03:
I don't see it.

[00:34:28] Speaker 03:
And I'm not even sure I'll get to this question, too.

[00:34:31] Speaker 03:
I don't even understand how uniformity could possibly matter.

[00:34:34] Speaker 03:
But anyways, would you at least 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 a direct bearing on significance of connection to property because if

[00:34:54] Speaker 03:
There's a difference between somebody who works at a property one week out of 52 and somebody who works 51 weeks out of 52.

[00:35:00] Speaker 03:
That's just a different level of connection.

[00:35:02] Speaker 03:
So if we're talking about frequency, would you grant that it seems arbitrary to say on one hand that one out of seven is regular and 22 out of 52 is not.

[00:35:12] Speaker 03:
No, no, your honor, I don't even on frequency, you would say it's okay to say that one out of seven is regular, but 22 out of 52 is irregular.

[00:35:22] Speaker 03:
The board is not applying a frequency requirement, but I'm asking you to assume that it is, I'm just, I don't, I don't see how it's not a frequency requirement.

[00:35:30] Speaker 03:
that what I see in this opinion over and over is it's only 22 out of 52, which all I read into that is frequency.

[00:35:39] Speaker 03:
If that's the way I read it, and I'm not trying to deny you the argument that my premise is wrong.

[00:35:45] Speaker 03:
I'm just asking you for purposes of argument to accept the premise.

[00:35:49] Speaker 03:
If you accept the premise, it seems to me arbitrary to say on one hand that one out of seven is regular, but 22 out of 52 is not.

[00:35:58] Speaker 05:
22 out of 52 is less than half of the year.

[00:36:01] Speaker 03:
It's more less than one half of the year than is 22 out of 52.

[00:36:05] Speaker 03:
That's the point is that one out of seven is less than 22 out of 52.

[00:36:10] Speaker 03:
So how can the first one be regular and the second one not?

[00:36:13] Speaker 05:
Right, this is where the idea of intervals, I think, is important.

[00:36:17] Speaker 03:
I mean, there's no regularity to the interval.

[00:36:19] Speaker 03:
Okay, so on frequency, then that just means on frequency, I have not heard you say, and I think I understand why you wouldn't, because I don't see how one could say, that if it's just a frequency-based determination, then 1 7th has to, if 1 7th is regular, then 22 out of 52 has to be regular too.

[00:36:37] Speaker 03:
Then we have to get to whether regularity actually means something different from frequency, like, you know, definite intervals.

[00:36:43] Speaker 03:
And on that, A, I don't see anything in the opinion that says that.

[00:36:46] Speaker 03:
But even if it did, I don't understand that because, for example, employees all the time take vacation.

[00:36:52] Speaker 03:
They get two weeks of vacation.

[00:36:54] Speaker 03:
No one knows when that vacation is going to happen.

[00:36:56] Speaker 03:
They just pick when it's going to happen.

[00:36:58] Speaker 03:
So the fact that you don't that you don't exactly know what happens in a particular week.

[00:37:03] Speaker 03:
I don't understand how that bears on

[00:37:06] Speaker 03:
The strength of the connection to a property, the property in a way that would really tip the balance.

[00:37:10] Speaker 05:
Well, the board that's your honor that's precisely the point of the board's decision is that The board doesn't look at individual employee schedules in making this assessment about regularity or exclusivity.

[00:37:23] Speaker 05:
The board is looking at the contractors presence on the property.

[00:37:27] Speaker 03:
But even the contractors presence on the property.

[00:37:29] Speaker 03:
I didn't mean to draw the distinction between contractors and employees.

[00:37:32] Speaker 03:
I'm saying even the contractor, if you know that they're going to work there, the contractor is going to be there 22 out of 52 weeks.

[00:37:38] Speaker 03:
And you know that there's 13 weeks as to which they can't be there at all, because it's a 39 week season.

[00:37:42] Speaker 03:
So we're talking about which 22 out of the 39 weeks.

[00:37:45] Speaker 03:
That's really the question, right?

[00:37:46] Speaker 03:
And if we're talking about which 22 out of the 39 weeks, what does it matter that you don't know which exact weeks it is?

[00:37:52] Speaker 03:
If it's 22 out of 39, we know it's 22 out of 39.

[00:37:56] Speaker 03:
Why does it matter if we don't know exactly which weeks it's going to be?

[00:38:01] Speaker 03:
And by the way, I'm not even sure that you don't know.

[00:38:02] Speaker 03:
But even if you assume that you don't, why would that matter?

[00:38:08] Speaker 05:
Again, Your Honor, I don't want to reject the premise of your question, but the board really

[00:38:15] Speaker 05:
said regularity and it meant regularity and it distinguished regularity from sporadic or occasional.

[00:38:22] Speaker 04:
So seasonal nurses in, you know, beach town who then go to the, you know, ski areas and the hospitals in the ski areas in the winter not covered because they're coming and going.

[00:38:35] Speaker 05:
It's not that they're not covered by the act.

[00:38:37] Speaker 05:
They certainly, they certainly could be and they in this case are.

[00:38:42] Speaker 05:
The question is just whether they have a section seven access, right?

[00:38:46] Speaker 05:
And the board's position is that these employees, first of all, start out as non-employees of the property owner.

[00:38:54] Speaker 05:
And that's sort of the linchpin of the board's decision.

[00:38:57] Speaker 05:
Because they're non-employees, of course, their right of access is more restricted than the rights of employees of the property owner.

[00:39:06] Speaker 05:
And so corresponding to that, it's a more

[00:39:10] Speaker 05:
demanding test.

[00:39:12] Speaker 04:
So, so in terms of the board's understanding of how much latitude it has, it had under New York, New York one, in your view, could, could the board have just said, okay, these are not employees of the Tobin center.

[00:39:33] Speaker 04:
So the Babcock-Luchemere standard applies to them, period.

[00:39:39] Speaker 04:
Without the burden, I know the board hung a lot on this burden shift.

[00:39:43] Speaker 04:
But without that, is that, as you read New York, New York, is that permissible under New York tradition to go all the way to the poll of non-employee?

[00:39:52] Speaker 05:
Right.

[00:39:53] Speaker 05:
I think that the board's, excuse me, the court's 2002 New York decision does give the board that latitude to determine the status of these employees for access purposes.

[00:40:05] Speaker 05:
And so the board and the court specifically said employees or non-employees.

[00:40:10] Speaker 05:
The board in New York and this case chose kind of an intermediate position where it recognizes that these are employees of an employer.

[00:40:19] Speaker 05:
So they are, broadly speaking, employees under the statute.

[00:40:22] Speaker 04:
So it's the board's position that they actually don't need to be between the polls of the non-employees who have no Section 7 rights in Lechmere and employees of an employer that owns the premises.

[00:40:38] Speaker 04:
They could have no showing whatsoever, alternative means.

[00:40:45] Speaker 04:
They're just not, because they're on a lessee's property that's leased to their employer.

[00:40:53] Speaker 05:
That's within the- They have no access rights.

[00:40:55] Speaker 04:
They have no access rights.

[00:40:56] Speaker 04:
That was open to the board to do.

[00:40:58] Speaker 05:
That was open to the board.

[00:40:59] Speaker 05:
The board did not choose that path.

[00:41:00] Speaker 05:
And the board has always maintained that this situation is not governed by Leach, Mirror, or Babcock.

[00:41:10] Speaker 05:
And there are distinctions, to be fair, between employees under the statute and non-employee union organizers.

[00:41:17] Speaker 05:
And the board's decision is very rational in the sense that it takes that distinction into account

[00:41:22] Speaker 05:
just as much as it takes the distinction between a property owner's employees and these contractor employees into account.

[00:41:29] Speaker 05:
And that's both in Newark, New York and in this case.

[00:41:33] Speaker 04:
So in this case, the Tobin Center did not have a burden before the ALJ when the record was being developed to show adequate alternative means.

[00:41:49] Speaker 04:
That's right.

[00:41:50] Speaker 04:
So it can't have met that burden.

[00:41:53] Speaker 05:
Well, on the record, it did meet the burden, though, because it was able to show.

[00:41:57] Speaker 05:
It did adduce evidence that these employees leafleted without any problem across the street from the Tobin Center.

[00:42:04] Speaker 05:
And it also adduced evidence that they handed out hundreds of leaflets over the course of the weekend.

[00:42:11] Speaker 04:
But there's no findings on those facts by the ALJ.

[00:42:14] Speaker 05:
Right, but the facts are in the record.

[00:42:19] Speaker 05:
And so the board relied on the facts in the record.

[00:42:25] Speaker 04:
And the union was not aware whether it had to dispute numbers of leaflets or distances from where the traffic was going or proportion of patrons who were getting out of valet parking on the, what's the name of the circle, the auditorium circle, or you know what I'm talking about?

[00:42:48] Speaker 05:
Yes, I do, but I don't know the name, yeah.

[00:42:52] Speaker 04:
So there was no exploration of,

[00:42:55] Speaker 04:
those facts before the ALJ auditorium circle?

[00:42:59] Speaker 05:
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 owner's business.

[00:43:10] Speaker 05:
That is sort of the second stage of analysis under New York, New York, which is what the ALJ applied.

[00:43:16] Speaker 05:
And so the parties were on notice that these concepts of interference were at issue.

[00:43:21] Speaker 05:
And in the course of litigating that,

[00:43:24] Speaker 05:
these facts came in about where the musicians leafleted and were they blocking ingress and egress and things of that nature.

[00:43:32] Speaker 04:
I thought that was that the principle rule was simply we have no leafleting, we have no solicitation policy, and therefore everything has to take place off our property.

[00:43:47] Speaker 04:
And that wasn't contested.

[00:43:48] Speaker 04:
That was the property owners.

[00:43:52] Speaker 04:
property claim.

[00:43:52] Speaker 04:
So there was no interference with its property.

[00:43:54] Speaker 04:
And then you had the leafletters outside the perimeter.

[00:43:59] Speaker 04:
And then the question becomes, they're outside the perimeter.

[00:44:02] Speaker 04:
So there's full protection of the property rights.

[00:44:05] Speaker 04:
Are they being given an adequate alternative means of serving their Section 7 access rights?

[00:44:15] Speaker 04:
And that's not an inquiry.

[00:44:17] Speaker 04:
Is it under New York, New York?

[00:44:22] Speaker 04:
No, I mean, And so, so whether the flow.

[00:44:25] Speaker 04:
I mean, where were do we do we know on this.

[00:44:27] Speaker 04:
I'm looking at j 486 Do we know on this exhibit there's there's numbers and letters on here where the synth where the ballet patrons enter the building is it across from Veterans Memorial Park and that main sort of colonnade entrance or

[00:44:48] Speaker 05:
Right, we do know from the record that they entered, they reached the main entrance from multiple different points.

[00:44:56] Speaker 05:
So there are, you know, there's the main entrance.

[00:44:58] Speaker 04:
Just for my benefit, is it the big entrance from the plaza?

[00:45:04] Speaker 04:
Right.

[00:45:05] Speaker 04:
Veterans Plaza, sort of the curved part of the facing toward the river?

[00:45:08] Speaker 05:
Right, right.

[00:45:10] Speaker 05:
And so the musicians wanted to leaflet on the perimeter around that plaza to get

[00:45:16] Speaker 05:
to catch patrons coming in from different points.

[00:45:20] Speaker 05:
But they were actually able to reach at least some patrons from across the street from the Tobin Center.

[00:45:27] Speaker 04:
So they were across the street, either in Veterans Memorial Park or across Auditorium Circle away from the building.

[00:45:37] Speaker 05:
I believe it was across Auditorium Circle.

[00:45:40] Speaker 04:
On the sidewalk there.

[00:45:41] Speaker 04:
So people would be coming in to Valet Park.

[00:45:43] Speaker 04:
They would get out and they would walk straight over

[00:45:46] Speaker 04:
to the, I guess, is that the west toward the entrance.

[00:45:51] Speaker 05:
Right.

[00:45:52] Speaker 05:
And there are also multiple parking lots.

[00:45:55] Speaker 04:
Right.

[00:45:55] Speaker 04:
And so theoretically.

[00:45:57] Speaker 04:
And do you know where those are on the?

[00:46:00] Speaker 05:
I don't actually, Your Honor.

[00:46:01] Speaker 05:
I don't have the map in front of me.

[00:46:03] Speaker 05:
But there were some.

[00:46:04] Speaker 04:
I didn't see that in the record where, I mean, I think that might have been in the record, but not the record that was supplied to us in the appendix.

[00:46:12] Speaker 04:
I don't think that part was included about

[00:46:16] Speaker 04:
where most people were coming from and parking and what their walking paths would have been?

[00:46:22] Speaker 05:
I can look again at what was put in the Joint Appendix, Your Honor.

[00:46:27] Speaker 05:
But I believe all of the maps were put in.

[00:46:30] Speaker 05:
Mr. Ginsburg might be more able to clarify this than I would be.

[00:46:35] Speaker 05:
But the point is that there were surrounding parking lots

[00:46:42] Speaker 05:
and there was valley parking, and some of the patrons did enter by crossing the street to the Tobin Center, so they necessarily would have come in contact with the leafletters since they were crossing.

[00:46:55] Speaker 04:
So if this were different facts, and I recognize this is a different hypothetical, if there were a freestanding theater, that theater company leased from a property owner,

[00:47:10] Speaker 04:
And the property owner said, look, it's all yours to do with as you wish.

[00:47:16] Speaker 04:
Let's say year round just to put the first prongs A and B off the table.

[00:47:23] Speaker 04:
But the property owner provides security and has a policy of no leafletting.

[00:47:30] Speaker 04:
In that case, if the property owner is enforcing that against

[00:47:38] Speaker 04:
employees of the theater who want to leaflet on theater property, let's say like this, sidewalks around a theater that are owned by the theater, no section seven rights, because in fact, in that situation, they're not employees of the property owner.

[00:48:01] Speaker 05:
I just want to make sure that I'm following.

[00:48:02] Speaker 05:
So the theater is leasing the property from the property owner and

[00:48:08] Speaker 05:
its employees are attempting to leave.

[00:48:12] Speaker 05:
I think that would be a different situation, Your Honor, because this case is specifically about contractor employees.

[00:48:23] Speaker 05:
So in your hypothetical, there's no contractor relationship

[00:48:30] Speaker 04:
But it would be, I mean, the contract here is a lease agreement, right?

[00:48:33] Speaker 04:
It's a license agreement for the symphony to be present.

[00:48:36] Speaker 04:
So it's a contractor of the property owner in that sense.

[00:48:42] Speaker 04:
They're employees of the theater company, but they're contractors with contract employees vis-a-vis the property owner.

[00:48:54] Speaker 04:
They're not the employees of the property owner, right?

[00:48:58] Speaker 04:
So in that sense, they are,

[00:49:00] Speaker 04:
they are the employees of a licensee of the property owner.

[00:49:05] Speaker 04:
And I just want to understand what, if anything, would distinguish that case from this case.

[00:49:09] Speaker 04:
And I understand all the 1A, 1B, regular and exclusive, but putting that aside, and just looking at this access question, why wouldn't the same access analysis be applicable there?

[00:49:29] Speaker 05:
If the relationship, in fact, is a contractor relationship with the property owner, then this test would apply.

[00:49:37] Speaker 05:
Then this test would apply, yes.

[00:49:41] Speaker 05:
But it's a little, I will say, Your Honor, it's a little bit complicated because in a lease situation, the lessee gets exclusive possession of certain parts of the property.

[00:49:54] Speaker 05:
And theoretically, they could control within their

[00:49:58] Speaker 05:
leasehold, you know, what employees have rights to do and so on.

[00:50:05] Speaker 05:
And then section seven would apply a little differently within the lease.

[00:50:09] Speaker 05:
Right.

[00:50:09] Speaker 04:
But I'm just thinking if, I mean, if I were a theater company and I wanted to provide the kind of, I wanted to rent, you know, lease a theater and one was offering me some security and a no-hand-billing policy and the other wasn't, I would think, you know,

[00:50:29] Speaker 04:
fewer problems for me.

[00:50:31] Speaker 04:
I'm going to contract for the one that's giving me some security and a no-hand billing agreement.

[00:50:39] Speaker 04:
And that would put this property owner in the same relationship with the employees as the Tobin here.

[00:50:47] Speaker 04:
And I grant, putting aside the fact that there are, in fact, multiple licensees at the Tobin Center.

[00:50:56] Speaker 04:
Getting to the question about the alternative means, 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.

[00:51:10] Speaker 04:
But the board does talk about, on the one hand, avenues of distributing handbills from across the street, but also about social and mass media.

[00:51:23] Speaker 04:
If the musicians here were not able to distribute leaflets across the street, could the NLRB have reached the same conclusion on this record that it reached because of the availability of mouse and public media, social media?

[00:51:39] Speaker 05:
I think that is the board's position, is that in this case, that those other avenues would have been reasonable alternatives.

[00:51:48] Speaker 05:
And again, and I think the board explores this somewhat at page nine of the slip opinion.

[00:51:53] Speaker 05:
where it talks about the alternative avenues analysis.

[00:51:59] Speaker 05:
In this case, the employees were attempting to communicate with the general public.

[00:52:04] Speaker 05:
And for that purpose, Facebook and so on, and especially because they were ultimately trying to direct people to a Facebook page with a QR code, electronic means would have been adequate in the board's view.

[00:52:20] Speaker 05:
In terms of the application of this in other cases, it is not the case, and the board is pretty emphatic about this.

[00:52:28] Speaker 05:
It is not the case that in every situation, a property owner can simply say Facebook or Twitter, and they will be relieved of their burden to show anything further.

[00:52:40] Speaker 04:
So say more about that.

[00:52:41] Speaker 04:
What do we know about that?

[00:52:44] Speaker 05:
Well, at footnote 85 of the board's decision, the board says,

[00:52:49] Speaker 05:
that it will not speculate about what would constitute reasonable alternative non-trespassery means in every case or in any other case.

[00:53:01] Speaker 05:
And the board is simply in this case saying that such means could be reasonable, especially because increasingly employees are communicating both amongst themselves and with the public through electronic means.

[00:53:18] Speaker 05:
I'm sorry, you said footnote which?

[00:53:19] Speaker 05:
It was 85.

[00:53:23] Speaker 03:
Can I take you back to exclusivity for one second, because there's the link here too.

[00:53:27] Speaker 03:
So I'm not understanding why exclusivity matters, except that in prior decisions, at least from the dissenting member that was relied on by, was it Hayes?

[00:53:36] Speaker 03:
I can't remember, but that was relied on.

[00:53:40] Speaker 03:
there's a suggestion that exclusivity matters because in a non-exclusive situations, there are other places where the Section 7 rights can be exercised because there's other property.

[00:53:54] Speaker 03:
Right.

[00:53:55] Speaker 03:
Is that the way in which exclusivity matters or is there some other way?

[00:53:57] Speaker 03:
Because I don't understand as a rational matter why exclusivity matters other than that.

[00:54:05] Speaker 05:
Right.

[00:54:05] Speaker 05:
I think that is the rationale for the exclusivity

[00:54:09] Speaker 05:
a piece of the analysis in the board.

[00:54:12] Speaker 05:
The board does kind of say by way of a quote from the Postal Service page and page eight of the decision that when employees work regularly and exclusively, you have kind of an East Tech sort of situation that arises where they have no other place, no other workplace where they can exercise their Section 7 rights.

[00:54:36] Speaker 05:
Of course, the board takes that seriously and that becomes the jumping off point for access.

[00:54:41] Speaker 03:
Right.

[00:54:41] Speaker 03:
So then if that's the only way in which exclusivity matters and I think I agree that that is the only way I can understand why exclusivity would matter because otherwise it seems irrational to think that if you work on a property five weeks.

[00:54:53] Speaker 03:
then the fact that you happen to work only on that property for those five weeks somehow gives you a greater connection to a property than one in which you work for 22 weeks, but then you work for a handful of weeks somewhere else, too.

[00:55:03] Speaker 03:
So then if we're only talking about the fact that there's another avenue that's available, another place, another piece of property that's available for the exercise of Section 7 rights, then does there have to be some kind of assessment of whether, in fact, the other place is available or how it stacks up?

[00:55:19] Speaker 03:
Because otherwise, why does it matter

[00:55:24] Speaker 03:
Do you see what I'm saying?

[00:55:25] Speaker 03:
That it's in theory possible that there's some other place.

[00:55:29] Speaker 03:
Now, we have no idea what the strength of the connection is to that other place though.

[00:55:34] Speaker 03:
And it could be that that other place, if you're only working there for one hour a year, and you're spending 99% of your time at location A and 1% of your time at location B, then it could very well be the case.

[00:55:46] Speaker 03:
I mean, if I were property owner B, I would probably be thinking, wait a minute,

[00:55:49] Speaker 03:
That means that the leafling has to occur on my property instead of the place where 99% of the activity occurs.

[00:55:56] Speaker 03:
I'm not understanding how that squares unless you take into account the availability of the other property.

[00:56:02] Speaker 03:
But maybe I'm missing something.

[00:56:04] Speaker 05:
Well, the board isn't getting into those fine assessments, Your Honor, about how long people spend as a proportion of all their working time at various different properties.

[00:56:15] Speaker 05:
The board is really laying down kind of a bright line

[00:56:18] Speaker 05:
rule that in order to acquire an access right, these employees have to work exclusively at this property.

[00:56:26] Speaker 05:
So even if they work one hour elsewhere, unfortunately, that is sufficient to sort of break the necessary connection in the board's view.

[00:56:34] Speaker 03:
But there has to be a reason that matters.

[00:56:37] Speaker 03:
Now, of course, mathematically you're right that there's a difference between

[00:56:41] Speaker 03:
You know, 90% and 100%.

[00:56:43] Speaker 03:
That's just math.

[00:56:44] Speaker 03:
That's a mathematical identity and nobody can dispute that.

[00:56:47] Speaker 03:
But there has to be a reason why the difference between 90% and 100% matters in a way that's commensurate with the values that are in the balance.

[00:56:56] Speaker 03:
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.

[00:57:06] Speaker 03:
And if that's true, then the other potential form, it seems to me, has to be available, or else there's no difference.

[00:57:13] Speaker 05:
Right.

[00:57:14] Speaker 05:
The board really didn't address, in this case, the situation that you're talking about, Your Honor.

[00:57:21] Speaker 05:
Because in this case, it was abundantly clear that these employees don't work exclusively on the Tobin Center's property for this contractor.

[00:57:31] Speaker 05:
And that's sort of where the analysis ended as far as that first part of the case.

[00:57:37] Speaker 05:
So the board didn't the board didn't get into I think the analysis that the union is suggesting, which is more of a practical assessment of where employees actually can exercise.

[00:57:49] Speaker 03:
I'm not, I'm not sure it's just a practical question.

[00:57:51] Speaker 03:
It seems to me as a theoretical one in that

[00:57:55] Speaker 03:
To focus on exclusivity, there has to be some reason why that focus makes sense.

[00:58:00] Speaker 03:
It can't be just arbitrary.

[00:58:02] Speaker 03:
You can't just say, well, we care about exclusivity.

[00:58:04] Speaker 03:
Well, why?

[00:58:05] Speaker 03:
Because exclusivity matters.

[00:58:06] Speaker 03:
I mean, that's just tautological.

[00:58:07] Speaker 03:
So it doesn't tell you anything.

[00:58:09] Speaker 03:
And so there has to be some underlying value that's being served by focusing on exclusivity.

[00:58:13] Speaker 03:
And if the underlying value is there's the potential availability of another forum, it just seems to me that there would have to be some work done

[00:58:20] Speaker 03:
in association with that, or else it's just exclusivity for exclusivity's sake, which I'm not quite following.

[00:58:27] Speaker 05:
I think the board is coming at this a little bit differently, though, Your Honor.

[00:58:30] Speaker 05:
You're talking about the availability of another forum.

[00:58:34] Speaker 05:
The board actually is concerned with whether this is the only forum.

[00:58:39] Speaker 05:
It's looking at the connection to this property and not the availability of other properties.

[00:58:47] Speaker 05:
Do you see what I'm saying?

[00:58:50] Speaker 05:
is literally concerned with what it said in its decision, whether there is no other place.

[00:58:56] Speaker 05:
And that is all.

[00:58:58] Speaker 05:
The board is not looking at are there available other places.

[00:59:03] Speaker 05:
It's framing the question a little bit differently.

[00:59:06] Speaker 03:
Is the salience of that from the perspective of the leafletting employees or from the perspective of the property owner on whose property the leafletting occurs?

[00:59:16] Speaker 05:
I think the board is looking at the perspective of the employees.

[00:59:19] Speaker 05:
The board is concerned about whether these employees truly have no other place.

[00:59:27] Speaker 05:
But it also does, of course, take into account the property owner's right to exclude and the fact that the property owner could well say, well, why my property?

[00:59:39] Speaker 05:
And the answer would be, because these employees have no other place.

[00:59:43] Speaker 05:
to exercise their Section 7 rights.

[00:59:46] Speaker 05:
And that is why some dislocation of your rights is necessary.

[00:59:51] Speaker 05:
In terms of the application, I know I far exceeded my time.

[00:59:57] Speaker 05:
I won't get into it unless the court has questions about the facts.

[01:00:03] Speaker 04:
What were you just going to say?

[01:00:06] Speaker 05:
Oh, no.

[01:00:06] Speaker 05:
I was just going to recap it.

[01:00:08] Speaker 05:
In the board's view, I take Judge Srinivasan's point

[01:00:13] Speaker 05:
that 22 weeks may seem fairly substantial.

[01:00:17] Speaker 05:
But in the board's view, respectfully, that does not suffice to meet the regularity requirement.

[01:00:24] Speaker 05:
And obviously, the record is very clear that these employees don't work exclusively on the Tobin Center's property.

[01:00:30] Speaker 05:
So really, the board could have stopped there, but it did proceed to the second stage of the analysis.

[01:00:36] Speaker 05:
And I just want to briefly say, in terms of a point that was raised earlier in this argument,

[01:00:41] Speaker 05:
The board could theoretically, if it knows that the employer is going to win on the second stage of the analysis, it could assume for the sake of argument that the first stage is met.

[01:00:52] Speaker 05:
And that's how it would kind of get to the second stage.

[01:00:57] Speaker 05:
And with that, I will close.

[01:00:58] Speaker 05:
Thank you very much, Your Honor.

[01:01:01] Speaker 03:
Thank you, Ms.

[01:01:01] Speaker 03:
Rajapaksa.

[01:01:03] Speaker 03:
Mr. Ginsburg, we'll give you your two minutes of rebuttal time.

[01:01:06] Speaker 02:
Thank you.

[01:01:07] Speaker 02:
And I'll be brief.

[01:01:10] Speaker 02:
First, I just want to reiterate, we believe that if you agree with us that the board's application of its first step of that board, the first step of the board's test is arbitrary and its application to the facts of this case was unreasonable that you should remain this case to the board.

[01:01:26] Speaker 02:
You don't need to reach the second step.

[01:01:28] Speaker 04:
No guidance on that.

[01:01:29] Speaker 04:
We don't need to give any guidance on second step.

[01:01:31] Speaker 02:
Well, I think, I mean, some of the discussion that we For reasons that Ms.

[01:01:35] Speaker 04:
Roger Poxy just said, it seems like actually the second step is where all the action is, because if it's such a weak, easily met standard, then it could always be the avenue taken.

[01:01:48] Speaker 02:
Yes.

[01:01:49] Speaker 02:
And absolutely, this court should give guidance.

[01:01:52] Speaker 02:
And what I would say is that the reason the first step is dispositive here is that you can't rationally do the second step, the balance in a real way of determining whether alternative means of communication are reasonable without knowing the strength of the Section 7 interest at issue.

[01:02:12] Speaker 02:
So, and that is guidance that this court could provide to the board.

[01:02:17] Speaker 02:
So, so for 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.

[01:02:28] Speaker 02:
We don't think that's what the record shows, you know, here the the employees, the musicians,

[01:02:33] Speaker 02:
were seeking to specifically communicate with people who were entering the ballet for the opening performance of the ballet.

[01:02:38] Speaker 02:
Sure, they caught some of them across the street, but as the ALJ found, you know, standing closer to the entrance was going to catch basically all of them.

[01:02:47] Speaker 02:
And imagine, you know, the board's rule applies to the musicians if they had a contract dispute with the symphony, over pay, for example.

[01:02:55] Speaker 02:
And if an hour before the symphony's performance, they handed out leaflets saying, hello patrons, you know, please, you know us, we're the musicians, please support us in our contract to speak with the symphony, you know, please call the symphony.

[01:03:09] Speaker 02:
Under the board's rule, they couldn't do that.

[01:03:11] Speaker 02:
And yet that's exactly the same section seven activity that was at issue here.

[01:03:17] Speaker 02:
So if there are no further questions.

[01:03:20] Speaker 03:
That's not right.

[01:03:21] Speaker 03:
And on the symphony, you're saying that would be the same rule because the symphony is also a contractor or would?

[01:03:28] Speaker 02:
The board's rule said the board's rule and its finding here would apply to the musicians when they sought to leaflet if the symphony was performing as opposed to the ballet, excuse me.

[01:03:42] Speaker 03:
Right.

[01:03:44] Speaker 02:
And so because they found that the musicians were not regularly and exclusively employed at the location.

[01:03:50] Speaker 02:
I mean, I will continue if you'd like, but no, I didn't think so.

[01:03:54] Speaker 03:
Oh, no, I just I think I understand that point.

[01:03:56] Speaker 02:
Yeah.

[01:03:57] Speaker 02:
So so and we think that, you know, that that can't possibly be the case.

[01:04:01] Speaker 02:
And so that any any balancing at the second step needs to take into account what Section seven interest is that issue.

[01:04:08] Speaker 02:
Here it's clear that the issue is a personal non derivative interest of employees who work at the location.

[01:04:13] Speaker 02:
And so, you know, that's, that is certainly some guidance that the court could give to the board on remand how the board articulates its test as we've discussed throughout this argument would be, you know, there's a number of ways they could do it.

[01:04:27] Speaker 02:
But the point is that they have to have a test that considers both the property interest and the Section 7 interest and balances them.

[01:04:34] Speaker 02:
And you have to know what the Section 7 interest is in order to accomplish that balancing.

[01:04:40] Speaker 04:
At what level of granularity does one parse the Section 7 interest?

[01:04:47] Speaker 04:
I mean, if you have the same ability to proceed

[01:04:52] Speaker 04:
communicate with members of the public as you do with your own employer.

[01:04:57] Speaker 04:
And so these patrons, communication with the patrons are fair game.

[01:05:02] Speaker 04:
What more about the nature of the interest would cast light on the alternative means?

[01:05:15] Speaker 04:
I mean, I get your point about the ballet patrons being

[01:05:20] Speaker 04:
the target and so you have to assess whether the alternative means allows them to reach those.

[01:05:24] Speaker 04:
I understand that.

[01:05:26] Speaker 04:
But are there other factors that would bear on the strength of the Section 7 right that you're thinking about that would be so much more

[01:05:35] Speaker 04:
case by case variable inquiry, the Section 7 inquiry?

[01:05:40] Speaker 02:
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 in an outside non-working area of the property and it's very clear from the boards and this court's case law that that's generally a place that's appropriate to communicate

[01:05:55] Speaker 02:
With customers of your employer, you know, New York, New York lean very heavily on ITT and that's what that was about.

[01:06:02] Speaker 02:
So there are a number of questions that can be raised in those cases in Nova Southeast, which is one of the cases discussed that's from this court.

[01:06:11] Speaker 02:
There was some discussion about the

[01:06:12] Speaker 02:
particular location where the employer does not have a leasehold interest but there's you know there the employee was leafletting in the parking lot he was leafletting to his co-employees and they said that's you all you the board said and you affirmed that that was an appropriate locus because that's where the communication most naturally would take place so there are those sorts of concerns there they run throughout the board's decisions over many years and this court's decisions but again I think

[01:06:39] Speaker 02:
In this case, speaking to the customers as they enter the very door of the Tobin Center about the labor dispute is outside in a non-working area, is firmly within the board and this court's sense of what is a traditional and appropriate place for employees to exercise their Section 7 rights.

[01:07:04] Speaker 01:
If you don't counteract the property owner's rights

[01:07:09] Speaker 01:
That's just an observation.

[01:07:12] Speaker 02:
Right.

[01:07:13] Speaker 02:
And we acknowledge that there has to be some balancing.

[01:07:15] Speaker 02:
But balancing that takes account of the Section 7 interests of the employees, which in this case we think are very strong as this is where they work.

[01:07:27] Speaker 02:
If there are no further questions, we will rest.

[01:07:32] Speaker 02:
Yes.

[01:07:32] Speaker 02:
Thank you very much for your time.

[01:07:34] Speaker 03:
Thank you, counsel.

[01:07:35] Speaker 03:
Thank you to both counsel.

[01:07:36] Speaker 03:
We'll take this case under submission.