Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Art

National Labor Relations Board - Unpublished Board Decisions

Dec 11, 2019

16-CA-193636 (N.L.R.B. Dec. 11, 2019)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
BEXAR COUNTY PERFORMING ARTS CENTER
FOUNDATION D/B/A TOBIN CENTER FOR THE
PERFORMING ARTS
AND CASE 16-CA-193636
LOCAL 23, AMERICAN FEDERATION OF MUSICIANS
ORDER DENYING MOTION FOR RECONSIDERATION
The Charging Party's Motion for Reconsideration of the Board's Decision and
Order, reported at 368 NLRB No. 46 (2019), is denied.1 The Charging Party has not
identified any material error or demonstrated extraordinary circumstances warranting
reconsideration under Section 102.48(c)(1) of the Board Rules and Regulations.2
Dated, Washington, D.C., December 11, 2019
____________________________________
JOHN F. RING, CHAIRMAN
____________________________________
MARVIN E. KAPLAN, MEMBER

1 The Charging Party filed a brief in support of its Motion for Reconsideration. The
Respondent filed a response in opposition.
2 The Charging Party asserts that the new access standard for off-duty employees of an
onsite contractor announced in the Board’s Decision and Order is “legally infirm”
because it would bar many off-duty contractor employees from exercising their rights
under Republic Aviation Corp v. NLRB, 324 U.S. 793 (1945). We find no merit in the
Charging Party’s contention. As the Charging Party acknowledges, the D.C. Circuit
recognized that the Supreme Court has never decided whether contractor employees
have Republic Aviation rights to engage in organizational activities in nonwork areas
during nonwork time. New York-New York, LLC v. NLRB, 676 F.3d 193, 196 (D.C. Cir.
2012) (quoting New York New York, LLC v. NLRB, 313 F.3d 585, 590 (D.C. Cir. 2002)),
cert. denied 133 S. Ct. 1580 (2013). Moreover, in the underlying decision, we
thoroughly explained our reasoning for adopting the new standard. The Charging Party
and our colleague contend that we made a material error in the underlying decision, but
there was no material error under Sec. 102.48(c)(1). To the contrary, they merely
disagree with our conclusions. Accordingly, we deny the Charging Party’s Motion for
Reconsideration.
2
____________________________________
WILLIAM J. EMANUEL, MEMBER
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER McFERRAN, dissenting.
For the reasons stated in my dissent from the Board's underlying decision, I
believe that the Charging Party has demonstrated "material error" in the
decision. Accordingly, I would grant the motion for reconsideration.
____________________________________
LAUREN McFERRAN, MEMBER
NATIONAL LABOR RELATIONS BOARD