Wolgast Corp v. NLRB

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Wolgast Corp. v. NLRB Nos. 01-1904/2056

ELECTRONIC CITATION: 2003 FED App. 0389P (6th Cir.)

File Name: 03a0389p.06 Before: MERRITT and DAUGHTREY, Circuit Judges;

RUSSELL, District Judge.**

UNITED STATES COURT OF APPEALS _________________

FOR THE SIXTH CIRCUIT COUNSEL

_________________

ARGUED: David J. Masud, MASUD, GILBERT &

WOLGAST CORPORATION , X PATTERSON, Saginaw, Michigan, for Petitioner. Ruth

Burdick, NATIONAL LABOR RELATIONS BOARD,

Petitioner/ - APPELLATE COURT BRANCH, Washington, D.C., for

Cross-Respondent, - Respondent. ON BRIEF: David J. Masud, Kraig M.

- Nos. 01-1904/2056

- Schutter, MASUD, GILBERT & PATTERSON, Saginaw,

v. > Michigan, for Petitioner. Ruth Burdick, Aileen A.

, Armstrong, David Habenstreit, NATIONAL LABOR

- RELATIONS BOARD, Washington, D.C., for Respondent.

NATIONAL LABOR RELATIONS -

Maurice Baskin, VENABLE, BAETJER, HOWARD &

BOARD , - CIVILETTI, Washington, D.C., for Amicus Curiae.

Respondent/ -

Cross-Petitioner. - _________________

-

N OPINION

On Petition for Review and Cross-Application _________________

for Enforcement of an Order of the National

Labor Relations Board. MERRITT, Circuit Judge. The central issue in this case is

No. 7-CA-42474 whether nonemployee union representatives of the organized

employees of a construction subcontractor, whose collective

Argued: December 12, 2002 bargaining agreement contains a union access clause, can be

categorically barred from a construction jobsite by the

Decided and Filed: September 16, 2003* contractor with the asserted property interest. Wolgast

Corporation petitions this Court for review of the order of the

National Labor Relations Board finding that Wolgast

committed an unfair labor practice by barring union

representatives from accessing a construction jobsite, and the

Board has cross-petitioned for enforcement of its order. We

*

This decision was originally issued as an “unpublished decision” **

filed on September 16, 2003. On October 28, 2003, the court designated The Honorable Thomas B. Russell, United States District Judge for

the opinion as one recommended for full-text publication. the Western District of Kentucky, sitting by designation.

1

Nos. 01-1904/2056 Wolgast Corp. v. NLRB 3 4 Wolgast Corp. v. NLRB Nos. 01-1904/2056

conclude that Wolgast’s petition is without merit and Horner went to the site to check on the scaffolding and sign

therefore issue an order of enforcement. up the employee. Once again, Grandy ordered them to leave

the property, this time “ranting and raving” and asking “what

I. Background the fuck are you guys doing here again?” Grandy grabbed

Turnwald’s arm and pulled him down a hallway until Horner

Wolgast, a non-union general contractor that hires both stepped between them. Grandy continued down the hallway,

union and non-union subcontractors to do construction work, and Turnwald proceeded to sign up the new employee at a

was hired by Cinema Hollywood, LLC to construct an makeshift table made of a sheet of plywood resting on bats of

addition to a movie complex. Wolgast subcontracted with insulation. During this process, Binder came in and placed

Acoustical Arts, Inc., a union contractor, for the required his set of tools on the makeshift table. At some point, Horner

acoustical installation. Acoustical’s carpenter employees and Binder stepped outside for a moment. When Turnwald

were represented by Local 706, United Brotherhood of had a question about the paperwork, he also stepped outside

Carpenters and Joiners of America, AFL-CIO. Article V, to ask Horner how to fill it out. As they both began to reenter

section c of the Carpenters Local 706 collective bargaining the building, Grandy stood in the doorway blocking their

agreement states, in relevant part: access, stating “You guys get the fuck out of here, you’re not

coming back in.” Turnwald brushed past Grandy and went

[B]usiness representatives shall have access to all jobs at back in to finish the paperwork. Grandy then said to the new

all times where possible. A representative of the employee, who was on his knees by the makeshift table filling

Michigan Regional Council of Carpenters shall have the out the paperwork, “That’s all the fucking union does is take

right to visit the job during working hours to interview your money,” to which the employee replied, “No, the

the employer, steward, or men at work, but shall not union’s the only way I can get ahead.” Announcing that he

hinder the progress of the work. was going to “clean up this area right here,” Grandy reached

down, grabbed the makeshift table and forcefully flipped it

(J.A. at 85.) On October 13, 1999, Leon Turnwald, the over so everything on it, including Binder’s tools, flew off

business representative and organizer for Local 706 went with and onto Turnwald. At this, Turnwald and Horner left the

Robert Horner, the business representative from Local 1045, site, apparently abandoning their plan to check the safety of

the union representing the lathers employed by Acoustical, to the scaffolding.

the Cinema Hollywood job site “to check on” a new

Acoustical employee. According to Turnwald, Brian Grandy, The administrative law judge ruled that Wolgast violated

a supervisory employee of Wolgast and the project’s section 8(a)(1) of the Act by interfering with Turnwald’s

superintendent, ordered Turnwald off the property. Before access to the jobsite. Relying on CDK Contracting, 308

leaving the property, Turnwald discovered that the new N.L.R.B. 1117 (1992), the judge ruled that the general

employee had already left the site before the end of his shift. construction contractor with the asserted property interest is

That evening, Turnwald spoke to the employee by telephone, obligated as a matter of labor law to yield its interest so that

who said he could not work at the site because the scaffolding the subcontractor’s employees’ section 7 right to be

was dangerous. Turnwald then spoke to John Binder, the represented by their chosen union and to receive the agreed-

owner of Acoustical, who said the scaffolding was safe. upon benefits of that representation may be fully

Turnwald also learned that they had forgotten to sign up a implemented. The judge ordered Wolgast to allow Local 706

new lather while at the site. The next day, Turnwald and access to Acoustical employees when requested, subject to

Nos. 01-1904/2056 Wolgast Corp. v. NLRB 5 6 Wolgast Corp. v. NLRB Nos. 01-1904/2056

any “reasonable and nondiscriminatory rules pertaining to the two.” Hudgens v. NLRB, 424 U.S. 507, 521 (1976)

nonemployee access” Wolgast may put in place. On appeal (internal quotations omitted). As always, accommodation

to the Board, Wolgast argued that CDK Contracting was between employees’ § 7 rights and employers’s property

wrongly decided and that this case is instead controlled by rights “must be obtained with as little destruction of the one

Lechmere v. N.L.R.B., 501 U.S. 527 (1992). There, the as is consistent with the maintenance of the other.” NLRB v.

Supreme Court held that an employer may categorically Babcock & Wilcox, 351 U.S. 105 (1956). We turn first to the

exclude nonemployee union organizers from its property Board’s determination that Lechmere does not determine the

subject to two narrow exceptions not applicable here. Finding outcome of this case as a matter of law.

that this case, like CDK Contracting, presents “substantially

different issues and considerations” from those presented in In Lechmere, union organizers distributed handbills on the

Lechmere, the Board rejected Wolgast’s argument and windshields of cars parked in a shopping plaza parking lot as

affirmed. part of an effort to organize the employees of Lechmere,

Inc.’s retail store located at the shopping plaza. Lechmere

II. Analysis personnel removed the handbills and asked the union

organizers to leave. The administrative law judge ruled that

Section 8(a)(1) of the National Labor Relations Act Lechmere had violated section 8 by barring the nonemployee

provides that “it shall be an unfair labor practice for an union organizers from its property. The Board affirmed,

employer [] to interfere with, restrain, or coerce employees in relying on a multifactor balancing test developed in Jean

the exercise of the rights guaranteed in section [7 of this Country, 291 NLRB 11, 14 (1988). The Supreme Court

Act].” 29 U.S.C. § 158(a)(1). Section 7 provides in pertinent denied enforcement of the Board’s order, holding that, at least

part that “employees shall have the right to self-organization, as applied to nonemployee union organizers, Jean Country

to form, join, or assist labor organizations, to bargain impermissibly eliminated the threshold stage of the inquiry by

collectively through representatives of their own choosing, failing to make a distinction between employees and

and to engage in other concerted activities for the purpose of nonemployees of the targeted employer. See Lechmere, 502

collective bargaining or other mutual aid or protection.” 29 U.S. at 538 (citing Babcock & Wilcox, 351 U.S. at 112). The

U.S.C. § 157. An employer therefore violates section 8 and Court reiterated the “distinction of substance” established in

commits an unfair labor practice where it restrains or Babcock & Wilcox between the organizing activities of

interferes with employees’ section 7 rights. Lechmere, 502 employees and nonemployees: “As a rule, then, an employer

U.S. at 531-32. cannot be compelled to allow distribution of union literature

by nonemployee organizers on his property.” Id. at 533. As

We review de novo the Board’s interpretation of Supreme explained by the Court:

Court and Sixth Circuit decisions, and uphold the Board’s

“reasonably defensible” construction of the Act in the absence To say that our cases require accommodation between

of binding precedent. See Meijer v. NLRB, 130 F.3d 1209, employees’ and employers’ rights is a true but

1212 (6th Cir. 1997). In determining whether the Board’s incomplete statement, for the cases also go far in

construction of the Act is “reasonably defensible,” we keep in establishing the locus of that accommodation where

mind that the “task of the Board, subject to review by the nonemployee organizing is at issue. So long as

courts, is to resolve conflicts between § 7 rights and private nonemployee union organizers have reasonable access to

property rights and to seek a proper accommodation between employees outside an employer’s property, the requisite

Nos. 01-1904/2056 Wolgast Corp. v. NLRB 7 8 Wolgast Corp. v. NLRB Nos. 01-1904/2056

accommodation has taken place. It is only where such which locus the working conditions of the

access is infeasible that it becomes necessary and proper subcontractors’ employees are necessarily established.

to take the accommodation to the next level, balancing It may therefore be reasonably inferred that Respondents,

the employees’ and employers’ rights . . . . by hiring such subcontractors, thereby “necessarily

submitted their own property rights to whatever activity,

Id. at 538 (emphasis in original). lawful and protected by the Act,” might be engaged in by

union business agents in the performance of their duties

Lechmere thus reaffirms that, in the generic situation vis-a-vis these subcontractors who have contractually

presenting a conflict between the competing interests of granted union business agents unrestricted access to the

employees and employers, the primary responsibility to make site.

the proper accommodation lies with the Board, whose

determination is subject to review only for reasonableness. In Villa Avila, 253 NLRB 76, 81 (1980) (quoting Hudgens v.

the specific case of nonemployee union organizers who NLRB, 230 NLRB 414, 418 (1977) (on remand)). The Board

attempt to enter an employer’s property for purposes of acknowledged that the union representatives were not

organizing, however, the Board does not even reach the employees of the contractor or subcontractor, but reasoned

balancing stage of the inquiry: An employer may “post his that under the factually distinct circumstances involving the

property against nonemployee distribution of union literature subcontractor’s employees’ own § 7 right to union access

if [1] reasonable efforts by the union through other available under a collective bargaining agreement and the union’s

channels of communication will enable it to reach the manifest representative capacity regarding that same right,

employees with its message and [2] if the employer’s notice balancing was appropriate and the represented employees’

or order does not discriminate against the union by allowing right outweighed the contractor’s right to control the property.

other distribution.” Babcock & Wilcox, 351 U.S. at 112. See id. at 80-81. According to the Board, the common and

accepted procedures in place at construction sites requiring

The Board’s pre-Lechmere decisions requiring the that the union representatives give notice of their presence to

contractor to allow union access to its unionized the general contractor “effectively accommodate the interests

subcontractor’s jobsite are founded on its view that the and obligations of all parties.” Id. at 81.

represented employees’ § 7 rights “include the right to receive

the various services of union business agents which services Just a few months after Lechmere was decided, the Board

are necessary to police existing collective-bargaining relied on C.E. Wylie Construction Co. and Villa Avila to

agreements or to negotiate new agreements.” See, e.g., Villa reaffirm that a construction contractor must permit its

Avila, 253 NLRB 76, 80 (1980), enf’d. as modified, 673 F.2d unionized subcontractor to allow union access pursuant to the

281 (9th Cir. 1982); see also C.E. Wylie Constr. Co., 295 collective bargaining agreement between the subcontractor

NLRB 1050, 1050 (1989). The administrative judge in Villa and the union. See CDK Contracting, 308 NLRB at 1117.

Avila further explained that, by hiring unionized The Board again distinguished the Supreme Court’s general

subcontractors to perform work on the jobsite, the general rule regarding nonemployee organizers as reaffirmed in

contractors Lechmere, stating that CDK Contracting presented

“substantially different issues and considerations.” Id. Under

have thereby invited these subcontractors to, in effect, these particular circumstances, “access is necessary in order

maintain a temporary place of business on the site, at to investigate and to resolve contract compliance when the

Nos. 01-1904/2056 Wolgast Corp. v. NLRB 9 10 Wolgast Corp. v. NLRB Nos. 01-1904/2056

contract grants the union such access.” Id. (citing Villa Avila, a non-union contractor); Cleveland Real Estate Partners v.

253 NLRB at 81). Unlike the situation in Lechmere, the NLRB, 95 F.3d 457 (6th Cir. 1996), overruled on other

contractor, “by soliciting other employers to perform work a grounds in NLRB v. Webcor Packaging, Inc., 118 F.3d 1115,

the jobsite, ‘invited’ subcontractors, and their respective 1119 (6th Cir. 1997) (applying Lechmere to handbilling by

subcontractors, onto the jobsite, and thus voluntarily nonemployee union representatives urging a boycott of a

subjected its ‘property rights’ to the Union’s contractual nonunion store at a strip mall).1

‘access’ rights with those contractors.” Id. As a result, “[t]he

Respondent [contractor] was not privileged to interfere with In our view, Lechmere and the cases cited from our court

the contractual obligations of the subcontractors and the are readily distinguishable from this case. Most significantly,

contractual rights of the unions that represented subcontractor the union agent at issue here did not seek access for purposes

employees.” Id. Finally, without access pursuant to the of organizing employees, handbilling patrons, boycotting, or

access provision, the “Union did not have a reasonable, other similar activity in exercise of the union’s “derivative”

effective alternative means to enforce its contractual rights.” § 7 rights. Rather, Turnwald sought access as the direct

Id. representative of the subcontractor’s employees under the

authority of the collective bargaining agreement. In our view,

Respondent Wolgast asserts here that the Board’s rule in at issue here is the employees’ own undisputed § 7 right to

CDK Contracting stands as a “radical departure” from negotiate and benefit from a collective bargaining agreement

Lechmere. In support, Wolgast points to the Court’s which allows union access for purposes of investigating the

statement in Lechmere that, “by its plain terms, . . . the NLRA premises and interviewing employees on-site. Neither

confers rights only on employees, not on unions or their Lechmere nor any of our cases address union access for

nonemployee organizers.” 502 U.S. at 532 (emphasis in representational purposes.

original). According to Wolgast, this statement provides a

“trump card” by predetermining that every nonemployee In any event, we have stated elsewhere that Lechmere’s

union representative can be barred from its property, statement that the Act “confers rights only on employees” is

regardless of his purpose or relationship with employees not so expansive as Wolgast suggests. In BE&K

located on the jobsite, in the same manner as the Construction Co. v. NLRB, 246 F.3d 619, 626-27 (2001),

nonemployee union organizer in Lechmere. Wolgast further rev’d on other grounds, 536 U.S. 516 (2002), we were faced

points out that this court has construed Lechmere to extend with the question whether a union whose members work for

beyond the purely organizational situation to apply to

situations involving other nonemployee union activities. See,

1

e.g., Albertson’s Inc. v. NLRB, 301 D.3d 441, 454 (6th Cir. W olgast also relies on NLRB v. Windemuller Electric, Inc., 34 F.3d

2002) (holding that, under Lechmere, an employer may bar 384 (6th Cir. 1994), in which a panel of this court relied on Lechmere to

nonemployee union representatives from distributing hold that an employer can lawfully prevent its unionized employees from

placing union stickers on their employer-owned hardhats. A later panel

handbills on the employer’s property informing the of this court rejected Windem uller’s reasoning, howe ver, inso far as it

employer’s patrons of the union’s economic strike with one treated the employees’ right to wear union insignia as a matter of property

of the employer’s suppliers); Sandusky Mall v. NLRB, 242 rights under Lechmere rather than of employees’ organizational rights

F.3d 682, 686 (6th Cir. 2001) (applying Lechmere in a case under Rep ublic Aviation. See Meijer Inc. v. NLRB, 130 F.3d 1209, 1217

involving “area standards” handbilling by nonemployee union (6th Cir. 1997) (holding that under the balancing test in Rep ublic

Aviation, 324 U.S. 793 (1945), “emp loyees have a right to we ar unio n

representatives urging shoppers not to patronize a store hiring insignia” on employer-owned uniforms).

Nos. 01-1904/2056 Wolgast Corp. v. NLRB 11 12 Wolgast Corp. v. NLRB Nos. 01-1904/2056

construction subcontractors possess a § 7 right that could The administrative law judge found no credible evidence that

potentially be violated by the nonunion contractor-employer there were such rules or that they were conveyed to the union

when the employer filed baseless lawsuits in retaliation for agent. This finding was undisturbed by the Board, and we

the union’s activities. In concluding that unions possess such cannot say it is clearly erroneous. We need not address

a § 7 right, we distinguished Lechmere as specifically Wolgast’s other arguments, as they are wholly without merit.

involving nonemployee union organizers attempting to

distribute organizational literature on an employer’s property. III. Conclusion

Id. at 627. We further noted that, by allowing exceptions to

its rule, “the Court . . . recognized that § 7 of the Act, by In CDK Contracting, the Board correctly concluded that

necessary implication, extended some legislative protection Lechmere did not control the outcome of the case. In

to unions.” Id. at 626. exercising its authority to strike the proper balance between

the property interests of a construction contractor and the

As a general matter, it is a reality inherent in construction interests of the employees of its unionized subcontractors to

work that a construction subcontractor’s employees work on benefit from their collective bargaining agreement, the Board

the property of another. The Board has set forth reasons that has created a rule that is both “reasonably defensible” and in

adequately take into account the specific circumstances accord with the guiding principle of labor law. Accordingly,

presented here, carefully considering the asserted property we DENY Wolgast’s petition for review and GRANT the

rights of the contractor and the accommodations required Board’s request for enforcement of its order.

when the contractor voluntarily hires unionized

subcontractors. Contrary to Wolgast’s suggestion, the Board

did not hold that a general contractor is “bound” to a contract

term to which it is not a party. Rather, it held that the

contractor may not interfere with the protected activity

relating to a union subcontractor and its employees in the

name of private property interests. See Hudgens, 424 U.S. at

510 nn.3 &11 (recognizing that “a statutory ‘employer’ may

violate § 8(a)(1) with respect to employees other than his

own”). We agree with the Board’s reasoning in Villa Avila

that, to the extent that general contractor interferes with the

duties of the union as representative of the subcontractor’s

employees, “so are the employees’ Section 7 rights

diminished.” 253 NLRB at 81. Under the circumstances

presented here, the Board’s balancing of the conflicting

interests in CDK Contracting is a reasonably defensible

interpretation of the Act.

Finally, regarding Wolgast’s assertion that Turnwald

waived his access right because he did not follow Wolgast’s

rules for visiting the jobsite, we affirm the Board’s ruling.