Petition for Writ of Certiorari — Wolgast Corp. v. National Labor Relations Board
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03 888 DEC | 52003
No.
— AAP — Be GLEE,
In the
Supreme Court of the United States
WoLcGasTtT CORPORATION,
Petitioner,
V.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Sixth Circuit
PETITION FOR WRIT OF CERTIORARI
Davip JOHN MAsuD
Counsel of Record
KRraAIG M. SCHUTTER
KATHLEEN S. GARDNER
MASUD PATTERSON & SCHUTTER, P.C.
4449 FAsHION SQUARE BLVD.
SAGINAW, MI 48603
(989) 792-4499
Counsel for Petitioner
Becker Gallagher Legal Publishing, Inc.
800.890.5001
QUESTIONS PRESENTED FOR REVIEW
Whether the National Labor Relations Board and the Sixth
Circuit Court of Appeals erred and created a split of
authority in the Courts of Appeals based upon an
uncertain distinction between “organizational” and
“representational” union rights for purposes of granting
access to employees working on an employer’s private
property in contravention to this Court’s rule of Lechmere
v. NLRB, 502 U.S. 527 (1992).
_ Whether the National Labor Relations Board and the Sixth
Circuit Court of Appeals erred and created a split of
authority in the Courts of Appeals by forcing an employer
to grant union access to its property on the basis of a
contractual “union access” agreement between the union
and a subcontractor working on the employer’s property
to which the employer has no privity of contract.
y
PARTIES TO THE PROCEEDINGS AND
RULE 29.6 STATEMENT
Petitioner, Wolgast Corporation, was the Respondent to
an unfair labor practice case before the National Labor
Relations Board and, subsequently, was the Petitioner-Cross
Respondent before the Sixth Circuit Court of Appeals.
Petitioner is a closely held Michigan corporation. Thirty
percent (30%) of the shares of stock are held by employees
pursuant to an employee stock ownership plan. No
corporation owns more than 10% of the stock of Wolgast
Corporation.
Respondent is the National Labor Relations Board which
brought the underlying unfair labor practice charges against
the Petitioner on behalf of the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO.
li
TABLE OF CONTENTS
Questions Presented for Review ......--++++++05: i
Parties to the Proceedings and Rule 29.6 Statement ... li
Table of Contents ......- 22 - cece err ccrecveens ili
Table of Authorities ........-- 0+ eee eee eees : Vv
Petition for Writ of Certiorari .......----+++ee 1
Oninions Below... 0... ee tee eee reece 1
Statement of Jurisdiction .......-.---eeee eee eees 1
Statutory Provisions Involved ........---++-+-+++: 1
Statement of the Case ......--.-- eee reer reer? 2
A. Factual Background .......-----+++ee:> 3
B. Proceedings Below......-----++++eee0: m
Reasons for Granting the Petition ......-.--+-->::> 6
I. Review is Warranted Because the Ruling of the
NLRB and the Sixth Circuit Creating Distinctions
Between “Organizational” and “ Representational”
Rights for Purposes of Union Access to an
Employer’s Private Property Creates a a Split in
the Circuit Courts of Appeals and Imprudently
Resurrects the Legal Uncertainty the Supreme
Court Sought to Eliminate in its Lechmere
0 NES A ares a ara a ee ae ee 8
II. Review is Warranted Because the Decision of
the NLRB and the Sixth Circuit Imposes the
Terms of a Subcontractor’s Union Contract on a
Non- Party Employer in Direct Conflict With
Supreme Court Precedent and Holdings of Circuit
Rae OE CUE 9 0 oo eos ee be ee 17
RE ib SSE oe ee ee ee ee ae 23
Appendix
Appendix A
Sixth Circuit Judgment - 9/16/03 ............. la
Appendix B
Sixth Circuit Opinion - 9/16/03 .............. 3a
Appendix C
National Labor Relations Board Decision
Pee ee EE kG ee ee eee eee een 16a
Appendix D
Sixth Circuit Petition for Review - 6/29/01 ..... 2la
Appendix E
National Labor Relations Board Order
Transferring Proceeding to the National Labor
Relations Board —- 10/25/00 ............... 23a
Appendix F
National Labor Relations Board Administrative
Law Judge Decision and Order - 10/25/00...... 25a
Appendix G
National Labor Relations Board Transcript
of Hearing, Pages 309, 310, 311, 338 and 339 ... 70a
1V
TABLE OF AUTHORITIES
Cases:
AmeriSteel Corp. v. Teamsters, Local 430,
267 F346 254 GO" Cer. BOI) ow ke ve cea wes 18
CDK Contracting,
908 NLRB. 1117 (IGE) ow cc ce ness passim
Cleveland Real Estate Partners v. NLRB,
OS F396 457 Cis. WOR) vw ce eects 7
EEOC v. Frank’s Nursery & Crafts, Inc.,
177 F. 3d 448 (6° Cir. 1999) 2... 02. eee ecee 18
EEOC v. Waffle House, Inc.,
co Rik Bee. fy: eee ee tr ee 17, 18
Jean Country,
24 WEB. TCE) wn oe asec ines 14
Kaiser Aetna, et. al. v. United States,
SO 155. 160 CIT). 2c ee eee taser rae 23
Leber v. Universal Music and Video Distribution, Inc..,
$92 ©3602 07" Cie. TOD wc cc sv oi ee es 18
Lechmere v. NLRB,
S02 US. SEF CTGRR) nn we ee eee passim
Local No. 447, United Assoc. of Journeyman &
Apprentices of the Plumbing & Pipefitting Industry,
72 LB. TOR GRD 5g nn a ee eee es 22
Metropolitan District Council of Philadelphia v. NLRB,
OO F.38 71 (9% Cir. 1995) ww ccc ec vers 7, 11
NLRB v. Babcock & Wilcox Co..,
Be Wut. WU CEM wk ctw ewe ences passim
NLRB v. Burns International Security Services, Inc..,
oe ae ey rir 17, 18, 21
New Breed Leasing Corp. v. NLRB,
111 F.3d 1460 (9 Cir. 1997) ............... 18
New York, New York, LLC v. NLRB,
pas wae one GP. Ci. BOE) nw ees eae 10
Olsen v. Shell Oil,
Pee 6 CO” Cir. 1983) 2... ei ce cees 18
Sandusky Mall Co. v. NLRB,
mee eee Oe Cer, B00)... «ne ce veces 7
Sparks Nugget, Inc. v. NLRB,
968 F.2d 991 (9" Cir. 1992) .............. 7, 2
UFCW v. NLRB,
ver .ae aoe GC. Car. 1908) . wo ce eke 7,9, 10
Villa Avila,
253 N.L.R.B. 76 (1980); enf’d. as modified,
Gre Pe et a Cor. 1982)... woe ee es 20
vi
Other Authority:
, ER Tol o>” eae are eae ewe ee 1
National Labor Relations Act
y SiR com Be frre 2
, 4 8 Pod Sh. ere i eae are se 2
y Lik Fo ee. |) er err ree ee 2
, fe Lee S| Se ee ee tee 1
PETITION FOR WRIT OF CERTIORARI
Petitioner, Wolgast Corporation (“Wolgast”), respectfully
petitions this Court for a writ of certiorari to review the
Judgment and Opinion of the United States Court of Appeals
for the Sixth Circuit entered in this case on September 16,
2003.
OPINIONS BELOW
The Opinion of the Sixth Circuit Court of Appeals is
published and referenced as Wolgast v. National Labor
Relations Board, 2003 U.S. App. Lexis 19391 (6 Cir. 2003).
(Pet. App. 3a-15a). The decision of the National Labor
Relatins Board is reported at 334 N.L.R.B. 203 (2001). (Pet.
App. 16a-20a).
STATEMENT OF JURISDICTION
The Sixth Circuit Court of Appeals had appellate
jurisdiction from the decision of the National Labor Relations
Board pursuant to 29 U.S.C. 160(f). The judgment of the
Sixth Circuit Court of Appeals was entered on September 16,
2003. The Petitioner has timely filed this Petition for Writ of
Certiorari. The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
STATUTORY PROVISION(S) INVOLVED
This case involves the interpretation and application of the
National Labor Relations Act (‘NLRA” or “the Act”), 29
U.S.C. 151, et seq., specifically, section 8(a)(1), which
provides:
ae
It shall be an unfair labor practice for an employer -
(1) to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in section [7 of
the Act].
29 U.S.C. 158(1). Section 7 of the Act provides, in pertinent
part:
Employees’ shall have the _ right’ to
self-organization, to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to engage
in other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection ... .
29 U.S.C. 157.
STATEMENT OF THE CASE
This case involves the misapplication and
misinterpretation by the NLRB and the Sixth Circuit Court of
Appeals of this Court’s prior decision in Lechmere v.
N.L.R.B., 502 U.S. 527 (1992), resulting in conflict and
confusion of law among the various circuit courts of appeals.
In Lechmere, this Court made clear that an employer may
exclude union Officials from its property absent a showing by
the union that the targeted employees are otherwise
inaccessible to the union officials. Nevertheless, pointing to
the existence of a “union access” clause in a collective
bargaining agreement of a subcontractor working on the job
site, the NLRB and the Sixth Circuit Court of Appeals ruled
in the present case that Wolgast could not lawfully exclude
union officials from its job site. The Board and the Court
2
concluded that Wolgast “invited” the subcontractor onto the
job site and that it was thereafter “not privileged to interfere”
with the contractual access rights of the union officials as
representatives of the subcontractor’s employees working on
the job site.
Wolgast contends that the rulings of the Board and the
Sixth Circuit ignore this Court’s precedent in Lechmere. The
Sixth Circuit’s decision to affirm the Board’s ruling results in
a significant split of authority between the federal circuit
courts of appeals on an issue of great public importance, 2.,
the scope and application of Lechmere. In particular, the
NLRB and the Sixth Circuit have created an untenable
distinction between “organizational” and “representational”
union access rights, a distinction that has been firmly rejected
by other courts of appeals. The rulings of the Board and the
Sixth Circuit are also in direct conflict with previously settled
law regarding the application of collective bargaining
agreements to non-party employers.
A. Factual Background
Wolgast is a general contractor engaged in new
construction and remodeling in the State of Michigan and
neighboring states. On July 29, 1999, Wolgast entered into
a contract with Cinema Hollywood, LLC, for the construction
of an addition to a movie complex in Birch Run, Michigan.
Under the terms of the contract, Wolgast accepted the
responsibility not only for the timely and cost-effective
completion of the project, but also for any potential damage
to persons or property as a result of the construction being
performed. Wolgast was also authorized to control access to
the property during the period of construction.
Wolgast entered into various subcontracting agreements
for the project on the basis of the “lowest and best bidder,”
without regard to union or non-union status.’ In this regard,
Wolgast entered into a subcontract with Acoustical Arts, Inc.
(“Acoustical”), for installation of framing, drywall, insulation
and other acoustical materials in the theater complex.
Acoustical’s employees were represented by two locals of the
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO (“Carpenters Union”), and were covered by two
collective bargaining agreements. Under the union contracts
(to which Wolgast was not a party), Acoustical and the
Carpenters Union had agreed that officials from the
Carpenters Union could visit job sites during work time to
conduct union business with employees. (Pet. App. 28a-29a).
On October 13, 1999, union officials from the Carpenters
Union visited the job site to “check on” a couple of members
and to see how a new member from Acoustical was “getting
along.” The visit was permitted. However, when the union
Officials returned the following day and began conducting
what they claimed to be “union business” in a work area, a
Wolgast supervisor told them they needed to conduct their
business in a non-work area due to safety and work progress
concerns. The union agents refused to comply and, after a
confrontation ensued, ultimately filed an unfair labor practice
charge against Wolgast.
' The theater complex was a multi-employer job site, so that a
mix of both union-and non-union employers were present at any
given time.
B. Proceedings Below
The Carpenters Union filed an unfair labor practice charge
against Wolgast based upon the company’s request that the
business officials remove their business to a non-work area of
the job site. The union alleged that Wolgast blocked the
union officials from access to the job site and that in doing so,
Wolgast interfered with, restrained and/or coerced
Acoustical’s employees in the exercise of their rights in
violation of section 8(a)(1) of the NLRA, 29 U.S.C. 151, et
seq.
A hearing was held before Administrative Law Judge
(“ALJ”) Martin J. Linsky on March 30 and 31, 2000, and
June 13, 2000. At this hearing, the ALJ was required to
determine whether Wolgast could deny access to the union
officials under its paramount property rights pursuant to this
Court’s holding in Lechmere. With scant discussion or
reasoning, the ALJ ruled flatly against Wolgast as to each
issue in the case, including the issue of whether Lechmere
applied (Pet. App. 63a-64a).
Upon Wolgast’s filing of Exceptions, the NLRB failed to
reverse the ALJ’s erroneous Decision and Order and, instead,
merely adopted the majority of the Judge’s Decision as its
own (Pet. App. 19a-20a). In essence, both the ALJ and the
Board followed the 1992 case of CDK Contracting, 308
N.L.R.B. 1117 (1992), in which the Board previously held
Lechmere inapplicable to circumstances where union officials
seek access to private job sites through use of contractual
“union access” clauses with subcontractors working on the
project sites. According to the Board, Wolgast was deemed
to have unwittingly “invited” the union representatives to the
Birch Run job site by virtue of the fact that the collective
bargaining agreements maintained between Acoustical and the
Carpenters Union contained union access clauses.
Wolgast timely filed its Petition for Review of the Order
by the NLRB to the United States Court of Appeals for the
Sixth Circuit (Pet. App. 22a). In its Petition, Wolgast argued
that the NLRB had erred as a matter of law by ignoring this
Court’s controlling precedent as enunciated in Lechmere.
Wolgast also argued that the Board erred by following the
infirm reasoning of CDK, supra, because it resulted in the
impermissible elevation of the union access clauses of the
contracts (of which Wolgast had no knowledge and to which
Wolgast was not a party) over Wolgast’s paramount property
right to control third party access to the job site.
In its Opinion dated September 16, 2003, the Court of
Appeals rejected Wolgast’s arguments and affirmed the
Board’s determination that Lechmere was inapplicable to the
present case (Pet. App. 14a-15a). Since the Sixth Circuit
impermissibly deviated from the standard enunciated in
Lechmere, and since its deviation brings its decision in
conflict with other federal circuits applying Lechmere,
Wolgast has timely filed this Petition for Writ of Certiorari to
the United States Supreme Court seeking review and reversal
of the decision of the Sixth Circuit Court of Appeals.
REASONS FOR GRANTING THE WRIT
This case raises important questions regarding the scope
and application of Lechmere, supra. In Lechmere, this Court
reinforced the principle first established in NLRB v. Babcock
& Wilcox Co., 351 U.S. 105 (1956), that there is a
“distinction ‘of substance’” between the exercise of Section 7
rights by employees and those asserted derivatively by
nonemployee union representatives. Hence, according to this
Court in Lechmere at 537:
... § 7 speaks to the issue of nonemployee access to an
emnloyer’s property. Babcock’s teaching is
straightforward: § 7 simply does not protect
nonemployee union organizers except in rare case
where “the inaccessibility of employees makes
ineffective the reasonable attempts by nonemployees
to communicate with them through the usual
channels,” 351 U.S. at 112. (Emphasis in original).
Clearly, Lechmere reaffirmed the rule that, absent employee
inaccessibility, an employer cannot be compelled to allow
nonemployee union officials access to the workplace.”
While the factual setting for_Lechmere involved union
access to the employer’s property for organizing purposes,
several circuit courts including the' Sixth Circuit’ have given
the case broad application to all other forms of concerted
activity under Section 7 of the Act. See, UFCW v. NLRB,
74 F.3d 292 (D.C. Cir. 1996); Metropolitan District Council
of Philadelphia v. NLRB, 68 F.3d 71 (3 Cir. 1995); Sparks
Nugget, Inc. v. NLRB, 968 F.2d 991 (9" Cir. 1992). In the
present matter, however, the NLRB and the Sixth Circuit
have impermissibly veered from Lechmere and these other
circuit courts of appeals by declaring Lechmere to be
> Neither the Charging Party, the Board, nor the Sixth Circuit
has ever contended or determined that Acoustical's employees were
inaccessible to the Union in this case.
* See, for example, Cleveland Real Estate Partners v.
N.L.R.B., 95 F.3d 457 (6" Cir. 1996) and Sandusky Mall Co. v.
N.L.R.B. 242 F.3d 682 (6" Cir. 2001).
7
“inapplicable” where union officials seek access to an
employer’s private property for “representation” of union
employees. The Sixth Circuit’s affirmation of the NLRB thus
results in a split of authority among the circuit courts on an
issue of great public importance. Due to this divergent
ruling, Lechmere’s legacy - which was meant to create a
bright-line union access rule - is in real danger of becoming
a diverse, conflicting and uncertain body of case law leading
to numerous unnecessary practical and legal problems for
employers within the Sixth Circuit and around the country.
The Sixth Circuit’s decision to deviate from this Court’s
bright-line rule regarding nonemployee access to private
property lacks any legal foundation and unjustifiably
subordinates employer property rights to the contractual
obligations of third parties. The CDK Contracting case relied
upon by the Board and the Sixth Circuit likewise contradicts
the holdings of this Court and numerous other circuit courts
of appeals. Accordingly, review by this Court is necessary to
avert the negative consequences of the Board’s and the Sixth
Circuit’s erroneous interpretation of the NLRA.
I. REVIEW IS WARRANTED BECAUSE THE RULING OF THE
NLRB AND THE SIXTH CIRCUIT CREATING A DISTINCTION
BETWEEN “ORGANIZATIONAL” AND
“REPRESENTATIONAL” RIGHTS FOR PURPOSES OF UNION
ACCESS TO AN EMPLOYER’S PRIVATE PROPERTY
CREATES A SPLIT IN THE CIRCUIT COURTS OF APPEALS
AND IMPRUDENTLY RESURRECTS THE LEGAL
UNCERTAINTY THE SUPREME COURT SOUGHT TO
ELIMINATE IN ITS LECHMERE DECISION.
Since the time this Court decided in Lechmere to
reestablish the Babcock inaccessibility rule as applicable to all
union access cases, several circuit courts of appeals have had
8
occasion to apply it. Contrary to the Sixth Circuit, the other
courts of appeals have reaffirmed that union officials may
exert statutory access rights to an employer’s private property
only if they can show that the target employees are
inaccessible by other means.
In UFCW v. NLRB, supra, at 293, the D.C. Circuit,
citing both Babcock and Lechmere, emphasized that “[f]or
more than 35 years, the courts have consistently enforced
Babcock’s mandate, holding that, as a general rule, section 7
of the National Labor Relations Act ... does not give
nonemployee union advocates the right of access to private
property.” (Emphasis in original). The D.C. Circuit then
addressed the NLRB’s contention that Babcock and Lechmere
were distinguishable because they involved union attempts at
organizing employees. Correctly assessing the union’s
“rights” as merely derivative of the target employees’ Section
7 rights, the Court rejected the NLRB’s contention that
Babcock and/or Lechmere were inapplicable. The Court held
at 293-4:
We find no merit in petitioners’ attempts to distinguish
Babcock and Lechmere. *** Although Lechmere
itself involved organizational activity, we find no
support for the suggestion by petitioners that the
[accessibility] exception should be easier to satisfy in
the context of mnonorganizational activity.
Accordingly, the petitions for review are denied.
Within its Opinion, the D.C. Circuit explained at 297, 299:
At heart, this case is a simple one. Babcock
establishes (and Lechmere reaffirms) a general rule
under which an employer may deny access to
nonemployees seeking to trespass on the employer’s
9
property. *** There should be no more to the matter
than that. However, petitioners attempt to obfuscate
this straightforward analysis by proffering artificial
distinctions between the section 7 rights asserted in
Babcock and Lechmere, and those being asserted here.
*** We decline to read Lechmere so narrowly. As
the Board has observed, there is “no suggestion in the
Court’s opinion ... that it focused on organizing
activities for any reason other than that Lechmere was
an organizing case, and that the Court was simply (and
prudently) deciding the case before it.” [Citations
omitted].
. KK
In effect, the Court in Babcock made a
once-and-for-all determination that, in the absence of
an inaccessibility showing, the locus of
accommodation for cases involving trespass by
nonemployee union adherents will always fall in the
range favoring denial of access, and Lechmere
reaffirmed that determination. [Footnote omitted. ]
And although Babcock and Lechmere were
organizational cases, the reasoning therein is equally
applicable in any situation where the exercise of a
section 7 right requires communication of a message
to a target group. (Emphasis added).*
* The D.C. Circuit recently reaffirmed its UFCW holding in
the case of New York New York, LLC v. NLRB, 313 F.3d 585
(D.C. Cir. 2002). There, the D.C. Circuit refused to enforce a
Board order requiring an employer to provide access to its property
to off-duty employees of a tenant who were seeking to organize the
tenant's employees. The Court concluded that the Board had not
10
The Third Circuit Court of Appeals has also given this
Court’s bright-line union access rule broad application without
regard to the “type” of right asserted under Section 7 of the
Act. In Metropolitan District Council of Philadelphia v.
NLRB, 68 F.3d 71 (3™ Cir. -1995), the Court rejected the
NLRB’s contention that access to the employer’s private
property was justified without a showing of inaccessibility
because the type of concerted activity (handbilling) was in
furtherance of the “direct” Section 7 rights of employees on
the employer’s premises. Like the D.C. Circuit, the Third
Circuit refused to recognize such arbitrary Section 7
distinctions. The Third Circuit found no reason why the rule
reached in Lechmere favoring employer property rights
“would be any less compelling in a case in which a union was
engaged in area standards handbilling than in a case where the
union was engaged in direct organizational activity.” Id. at
74.
Specifically, the Court held:
Petitioner seeks to avoid this result by playing on the
distinction between direct and derivative rights in
section 7 ... We decline to read Lechmere so
narrowly. The question is not whether the right is
described more aptly as direct or derivative, but
whether the private property rights of an employer
must give way to the rights of nonemployee
interlopers. We believe that primary thrust of
Lechmere was to reemphasize the protection of
employers’ private property rights against
taken Lechmere and other pertinent precedent into account in
reaching its decision and remanded the case for proper analysis. Id.
at 587-91.
11
unwarranted intrusions by nonemployees. The
“distinction of ‘substance’” is between the employees
of the employer who is asserting his property rights
and the individuals who do not work for that employer
but seek access to his property .... The case finally
gets down to this easily understandable rule of law:
a nonemployee does not have a right of access to the
employer’s property, at least if he has reasonable
alternative means to exercise his section 7 rights
whether they are direct or derivative. (Emphasis
added). Id.
The Ninth Circuit has also demonstrated its strict
adherence to the Babcock union access rule (as reaffirmed in
Lechmere) when addressing the NLRB’s argument that union
Officials should have access to an employer’s property in
order to further the Section 7 rights of employees in
non-organizing settings. In Sparks Nugget, Inc., v. NLRB,
968 F.2d 991 (9th Cir. 1992), the Ninth Circuit evaluated the
standards concerning union access to the employer’s property
for picketing and distributing handbills based on the
employer’s failure to bargain in good faith with the union as
the representative of the employer’s employees. Even though
the union was engaged in representational activity on behalf
of the employer’s employees (picketing and handbilling in
response to the employer’s unfair labor practice), the Ninth
Circuit rejected the union’s argument that Lechmere did not
apply. Id. at 998. Thus, the Court held that, despite the
employer having committed an unfair labor practice for
failure to bargain with the union, the union could not trespass /
onto the employer’s property absent a showing that employees |
were inaccessible. Id.
In contrast to the these decisions from other courts of
appeals, the Sixth Circuit in the present case fixated on the i.
12
eo
underlying facts of Lechmere and erroneously concluded that
the case could be distinguished based on the type of Section
7 right the union officials sought to exercise. In an apparent
attempt to make the distinction workable, the Circuit Court
conjured an unnecessary legal fiction that, when a union seeks
access to an employer’s property for “representational
purposes,” the right of access is no longer derivative but,
rather, is exercised as a “direct representative of the
subcontractor’s employees under the authority of the
collective bargaining agreement.” (Opinion, p. 9-10; Pet.
App. 12a-13a). Not surprisingly, the Sixth Circuit provided
no legal support whatsoever for its stark divergence from
Lechmere or for its conclusion that union access rights
supercede an employer’s property rights where union officials
seek property access under the guise of contract enforcement.
The Board and the Sixth Circuit have essentially created
an exception to this Court’s Babcock and Lechmere union
access rule. They have diverted the focus away from whether
union officials have alternative access to the targeted
employees (the accessibility test), toward whether the union
Officials have sought access to further the collective
bargaining interests of employees working on the employer’s
premises. Opinion at 10 (Pet. App. 13a). Under the analysis
of the NLRB and the Sixth Circuit, it would appear that union
officials would always have the right to access the employer’s
property as long as the employees on the property are covered
by a collective bargaining agreement. Such an analysis is
clearly contrary to Lechmere and represents an unwarranted
departure from established case precedent.
Lechmere constitutes a bright line rule applicable to all
nonemployee union access cases. The rule recognizes an
employer’s paramount property rights to exclude
nonemployee union officials from its property. Embodied
13
within that rule is only one exception - applicable only where
union officials can demonstrate that the targeted employees
are not accessible by other available means. The Sixth Circuit
has ignored this rule and developed its own exception to
Lechmere. The exception was never contemplated by this
Court and it stands in direct conflict with the rulings of all
other circuit courts of appeals which have applied Lechmere.
Not only has the Sixth Circuit strayed from the precedent
of this Court and that of all other circuit courts of appeals, but
the lower Court has embraced the kinds of line drawing
problems which the NLRB admitted was part and parcel of its
pre-Lechmere balancing test.’ By its ruling in this case, the
Sixth Circuit has resurrected the confusion and murkiness that
attended union access cases prior to Lechmere which this
Supreme Court specifically sought to put to rest in Lechmere
through reaffirmation of Babcock’s union access rule.
Under the Sixth Circuit’s ruling, an employer must now
delve into a legal morass if the requestor for property access
> Prior to Lechmere, the NLRB developed “a three-factor
balancing test [applicable to] all [union] access cases” taking into
account the various interests of employees, union officials-and
employers. Lechmere at 535-6, citing Jean Country, 291 N.L.R.B.
11 (1988). After referencing that the Board had conceded its
balancing test “was unlikely to foster certainty and predictability in
this corner of the law,” the Lechmere Court determined that the
NLRB’s balancing test impermissibly eroded the Court’s 1956
inaccessibility rule from Babcock, “at least as to nonemployees.”
Id at 536, 538. Thus, this Court reaffirmed Babcock’s general rule
for all access cases, specifically ruling that an employer can validly
bar nonemployee union officials from its property unless the union
can meet a “heavy” burden of showing that the targeted employees
are-otherwise inaccessible. Id. at 538-540.
14
Se he Ade a tala ee Rell al
is a union official purporting to represent another employer’s
employees. Where a union requests access within the
jurisdiction of the Sixth Circuit, the employer is required to
first determine the purpose for the request, and then to
properly label the request as one in furtherance of
“organizing” or “representing”.employees. If the request is
for “representation” purposes, then the employer must
apparently determine whether the union maintains a collective
bargaining agreement with another employer lawfully on the
premises and, if so, whether that contract contains a legally
enforceable union access clause which might apply to the
employer’s premises. Opinion at 10. (Pet. App. 13a). If
such a clause exists and applies, an exception to Lechmere is
created according to the Sixth Circuit, and the employer must
grant access to the union officials regardless of whether
alternative access is available. Opinion at 10. (Pet. App.
13a).
These legal hoops pose their own particular problems.
For instance, in the present case, Wolgast voluntarily allowed
access to the Carpenters Union officials on October 13, 1999,
to handle what Wolgast believed was a minor matter.
However, when the union officials returned the next day to
resume “union business” in a work area, Wolgast objected.
(Pet. App. 61a). According to the Sixth Circuit, it became
incumbent upon the Wolgast manager on site to immediately
determine whether the union officials were there to make
inroads at organizing other employees (in which case Wolgast
could exclude the officials), or whether they were there to
represent union members of another employer in some way
(in which case access could not be denied). Resolution of
these kinds of fact intensive, state-of-mind inquiries required
under the Sixth Circuit’s rule in union access cases are not
only burdensome, but nearly impossible for managers to
immediately make on a case-by-case basis.
15
The problem is further complicated when a union official
seeks access for a dual purpose - to “represent” existing union
members of another employer and to organize other
unrepresented employees (a circumstance Wolgast believes
existed in the present case). Can access be denied or must it
be granted in such a case? If access must be granted for
representation purposes, how can the employer monitor the
union officials’ visit to properly prevent organizing or other
activities that interfere with work without running afoul of the
Section 7 rights of employees? These kinds of factual and
legal dilemmas are not unique to this particular case. They
would arise in virtually any case that comes before the Board
and the Sixth Circuit where a union seeks access to
employees.
The harm to employers caused by the rulings of the Board
and the Sixth Circuit are not confined to the Sixth Circuit’s
jurisdiction. To clearly demonstrate the disparity between the
circuits and the havoc that the Sixth Circuit’s ruling can cause
for an employer faced with union access claims, one need
only place himself in the shoes of an employer who operates
in more than one jurisdiction. As the case law currently
stands, that employer must be aware of the conflicting
analyses employed by the various circuits in order to properly
respond to a union’s request for access. To require that
employer to recognize and readily apply different union
access rules based on the location of the job sites is to invite
legal chaos into the body of federal labor law which Congress
sought to synergize through passage of the NLRA in 1935.
The split within the circuits created by the Sixth Circuit’s
misunderstanding and misapplication of Lechmere thus raises
an issue of great public importance. The decisions of the
Board and the Sixth Circuit confound the property rights of
owners from circuit to circuit and create uncertainty and
16
confusion among employers when faced with union access
claims. Therefore, review is warranted both to resolve the
split of authority within the circuits and to forestall the
needless, burdensome effects caused by the Board and the
Sixth Circuit on all multi-employer job sites across the nation.
II. REVIEW IS WARRANTED BECAUSE THE DECISION OF THE
NLRB AND THE SIXTH CIRCUIT IMPOSES THE TERMS OF
A SUBCONTRACTOR’S UNION CONTRACT ON A
NON-PARTY EMPLOYER IN DIRECT CONFLICT WITH
SUPREME COURT PRECEDENT AND HOLDINGS OF
CIRCUIT COURTS OF APPEALS.
The Sixth Circuit decision in this case presents an
additional conflict with precedent from this Court and other
circuit courts of appeals, thus justifying Supreme Court
review. Specifically, this Court should review whether the
NLRB and Sixth Circuit Court committed an error of law
when they determined, in reliance on the NLRB’s 1992 CDK
Contracting case, supra, that union officials possess a
superior right of access to an employer’s private property
based on a visitation clause found in a subcontractor’s
collective bargaining agreement. It is black-letter federal
labor law precedent that a contractual agreement between two
parties simply cannot logically or lawfully serve to trump a
non-party’s private property rights.
This Court has stated, “[iJt goes without saying that a
contract cannot bind a non-party.” EEOC v. Waffle House
Inc., 534 U.S. 279 (2002). This rule applies with equal force
under the NLRA. Indeed, the Supreme Court, unlike the
NLRB and the Sixth Circuit in the present case, has refused
to extend the terms of a collective bargaining agreement to
non-signatory third parties. For example, in NLRB v. Burns
International Security Services, Inc., 406 U.S. 272 (1972),
17
this Court was called upon to review a Board determination
that required a successor employer to take over and honor the
terms of a predecessor’s collective bargaining agreement.
The Supreme Court unanimously rejected the Board’s
departure from basic contract law, finding that the successor
could not be bound by the predecessor’s labor agreement. Id.
at 284-5.
Other federal circuit courts of appeals have had no
difficulty strictly adhering to the basic privities of contract
principles referenced by this Court in Waffle House and
Burns, supra. See, e.g., Leber v. Universal Music and Video
Distribution, Inc., 332 F.3d 452, 454 (7" Cir. 2003);
(“MUMS cannot be held liable on a contract to which only
Universal is a party, any more than Universal may be held
liable on a contract to which only MUMS and the Union are
parties.”); AmeriSteel Corp. v. Teamsters, Local 430, 267
F.3d 264, 265 (3 Cir. 2001) (“[A]n unloosening successor
cannot be bound by the substantive provisions of -its
predecessor’s agreement ... .”); New Breed Leasing Corp. v.
NLRB, 111 F.3d 1460, 1466 (9th Cir. 1997) (a successor is
not bound by the substantive terms of another’s agreement);
Olsen v. Shell Oil, 708 F.2d 976, 985 (5™ Cir. 1983) (a
waiver in a contract will not bind a non-party).°
In the present case, the Sixth Circuit concluded that the
Board properly granted access to Union officials due to the
existence of visitation clauses found in the collective
° Even the Sixth Circuit has recognized this fundamental point
as it specifically held in EEOC v. Frank’s Nursery & Crafts, Inc.,
177 F.3d. 448, 460 (6" Cir. 1999) that, “[uJnder general principles
of contract law, it is axiomatic that courts cannot bind a non-party
to a contract, because that party never agreed to the terms set forth
therein.”
18
bargaining agreements between a subcontractor working on
the job site, Acoustical, and the Carpenters Union. Opinion
at 11 (Pet. App. 13a-14a). After erroneously concluding that
Lechmere was inapplicable (because the Carpenters were not
engaged in organizing activity), the Sixth Circuit adhered to
the NLRB’s legal fiction that a general contractor such as
Wolgast is deemed to have “invited” the union officials onto
the property simply by subcontracting with a union
subcontractor, and that a general contractor in such instances
is thereafter “not privileged to interfere” with job site access
by the union officials. Opinion at 9 (Pet. App. 11a).
Reaching this decision, the NLRB and the Court relied
primarily on the Board’s decision in CDK Contracting, 308
N.L.R.B. 1117 (1992) - a case decided within a few months
after this Supreme Court’s Lechmere decision. With regard
to the applicability of the then-recently decided Lechmere
case, the CDK Board ruled:
At issue here is whether a general contractor may
deny access to a job site to union officials who seek to
communicate with employees of a subcontractor
represented by the union where a visitation clause in
the contract between the subcontractor and the union
permits access. As the Judge reasoned, the
Respondent, by soliciting other employers to perform
work at the jobsite, “invited” subcontractors, and their
respective subcontractors, onto the jobsite, and thus
subjected its “property rights” to the Union’s
contractual “access” rights with those contractors.
[Footnote omitted.] Thus, the Respondent here,
unlike the Respondent in Lechmere, voluntarily
undertook to have work performed by unionized
subcontractors on _ the property. In these
circumstances, the Respondent was not privileged to
interfere with the contractual obligations of the
19
subcontractors and the contractual rights of the unions
that represented subcontractor employees. We
conclude that the Respondent must permit those
contractors to observe their contractual obligations.
CDK, 308 NLRB at 2-3. Thus, without any legal support
whatsoever, the Board iii CDK dismissed the Supreme Court’s |
directives in Lechmere and set forth its own legal theory that
third party contract rights circumvent employer property i
rights when union subcontractors are working on the
employer’s property.’
sectinahceb sie sha RRae Ci area te Ri alin Dah Site eee WH
The basis of CDK and the decisions of both the NLRB and
Sixth Circuit in this present case all suffer from the same legal
defect - private property rights of an employer cannot
logically fall subject to a contractual union access clause of a
subcontractor and a union because there is absolutely no
privity of contract with the employer. Application by the
Board and the Sixth Circuit of the terms of a private contract
to the detriment of an outside third party violates the most
basic tenets of contract law. Moreover, by extending
contractual obligations to Wolgast as a third party not in
privity with the contracting parties, the Board and the Sixth
Circuit have ignored controlling Supreme Court precedent
which prohibits such extensions and have created a conflict in
precedent among the circuit courts of appeals.
BAe abcdbestie's evan Cee Si la TO a
AS Dear eran a ent LW EMR ei Ne ates
aad Cereal iC tee idle WIA ae Ae
” The CDK case relied heavily upon Villa Avila, 253 N.L.R.B.
76 (1980) enf’d as modified, 673 F.3d 381 281 (9" Cir. 1982), a
case decided over a decade before Lechmere. However, there is
no indication that either Villa Avila or the cases that it relied upon
remain good law after the Lechmere decision. Thus, the NLRB’s
and Sixth Circuit’s direct and indirect reliance upon Villa Avila is
misguided at best and constitutes an unsupported and impermissible
departure from Lechmere. i
20
Ta
As shown above, in numerous previous cases decided by
this Court and the various circuit courts of appeals, the courts
recognized and applied the fundamental (and obvious)
principle of law that contractual rights and obligations apply
between parties to a collective bargaining agreement - not to
those who are not a party to the contract. The Board and the
Sixth Circuit have failed to adhere to this core principle.
Instead, the Board and the Sixth Circuit have burdened all
third party employers with substantive terms of union
contracts that thwart their own property rights.* The CDK
decision was wrong when it was decided, and the Sixth
Circuit’s decision to follow CDK’s faulty logic is wrong now.
Wolgast had legitimate rights to control access to the Birch
Run property and, pursuant to Lechmere and Burns, those
rights simply should not be held hostage to terms of a contract
to which Wolgast has never been a party.” Perhaps more
importantly, the decision of the Sixth Circuit to follow the
faulty precedent of the Board in CDK results in a split of
® While the present case involves forcing a union access clause
on Wolgast as a third party general contractor, there is nothing in
the reasoning of the Sixth Circuit’s Opinion to prevent eventual
application of any other collectively bargained terms to any third
party employer.
® Further difficulty exists with the lower court’s decision
because neither CDK, nor the Sixth Circuit’s Opinion provide
answers to situations (as here) where a general contractor, Wolgast,
was not even aware of a collective bargaining agreement between
its subcontractor and any particular union, much less aware of the
union visitation clause contained within it. In this regard, Wolgast
was completely unaware of any of the terms of the collective
bargaining agreement between Acoustical and the Union, Hearing
Tr. (Pet. App. 73a-77a), a fact never contradicted by any of the
holdings of the ALJ, the Board or the Sixth Circuit in this case.
21
ee es
is sat Dae Pah
authority in the circuit courts which this Supreme Court
should review and correct.
Simply put, both the Sixth Circuit’s Opinion and the
underlying CDK decision constitute bad law.'° The legal
fiction that a general contractor “invites” the application of a
contract of which it is not aware and to which it is not even a
party so as to eliminate its private property rights is absurd
and does violence to fundamental privity of contract rules
recognized by this Supreme Court and every other circuit
court of appeals. Thus, the unsupported circumvention by the
eee abet loa tLe aM
'0 Perhaps the best example of the unsupported and illogical
approach of the Board and the lower court to circumventing an
employer’s property rights can be found in a previous contradictory
holding of the NLRB. In Local No. 447, United Assoc. of
Journeyman & Apprentices of the Plumbing & Pipefitting Industry,
172 N.L.R.B. 128 (1968), the Board held that an employer does
not discriminate against employees within the meaning of Section
8(a)(3) of the Act by ceasing to do business with another employer
because of the union or non-union activity of the latter’s employees.
Id. at *7. Thus, applying the holding of Local No. 447 to the
present case, Wolgast would have been justified in terminating its
subcontract with Acoustical based on Acoustical’s union status.
Since Wolgast, could, with impunity, terminate its subcontract with
Acoustical to avoid union entanglements, how could it be that
Wolgast fell subject to its union subcontractor’s contractual
obligations when Wolgast was not even aware of the underlying
collective bargaining agreements, much less a party to them?
Reason and logic dictate that if an employer retains the right to
lawfully terminate contractual relations with another employer
based on the other’s union affiliation, then inherent within that right
must exist the equal right to disregard, with impunity, the union
employer’s collective bargaining obligations with a third party
union. This is particularly trve in light of the very strong employer
property rights favored by the U.S. Supreme Court in Lechmere.
22
re ETE EE IT —
| |
Sixth Circuit of well-established notions of employer property
rights recognized in Lechmere should be overruled through
review of the present case by this Supreme Court.
CONCLUSION
It is virtually black letter law that “one of the most
essential sticks in the bundle of rights that are commonly
characterized as property [is] the right to exclude others.”
Kaiser Aetna et. al. v. United States, 444 U.S. 164 (1979).
The Sixth Circuit’s decision in the present case, which
erroneously disregards this Supreme Court’s binding
precedent enunciated in Lechmere, effectively strips
employers of that right. Moreover, the Sixth Circuit’s ruling
creates an undesirable disparity between the circuits with
regard to union access rights to an employer’s property.
Consequently, these conflicting decisions within the circuits
result in confusion and uncertainty for employers and unions
alike, which simply cannot be justified. In short, this case has
important legal practical applications to the business
community which warrant Supreme Court resolution.
Supreme Court review is necessary to provide employers
and unions representing workers with a clear understanding
of union access rules applicable to job sites. For the
foregoing reasons, Petitioner, Wolgast Corporation,
respectfully requests that this Petition for Writ of Certiorari
be granted.
Respectfully submitted,
MASUD, PATTERSON
& SCHUTTER, P.C.
Attorneys for Petitioner
DAVID JOHN MASUD
Counsel of Record
KRAIG M. SCHUTTER
KATHERINE S. GARDNER
4449 Fashion Square Boulevard
Saginaw, MI 48603
(989) 792-4499
Dated: December 12, 2003
24
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Nos. 01-1904 and 01-2056
[Filed September 16, 2003]
WOLGAST CORPORATION,
Petitioner/Cross-Respondent,
¥.
NATIONAL LABOR RELATIONS BOARD,
Respondent/Cross-Petitioner.
Nee Nee Nee eee ee”
BEFORE: MERRITT and DAUGHTREY, Circuit Judges;
RUSSELL, District Judge
JUDGMENT
THIS MATTER came before the court upon a petition for
review and cross-application of an order against Wolgast
Corporation.
UPON FULL REVIEW of the record and the briefs and
arguments of counsel, we conclude that the decision of the
National Labor Relations Board should be enforced, and
accordingly:
la
Section Pate) wee. |
IT IS SO ORDERED that the petition to review the order
issued by the National Labor Relations Board in this matter be
DENIED and the cross-petition for enforcement be ;
GRANTED.
ENTERED BY ORDER OF THE COURT
/s/
Leonard Green, Clerk
2a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Nos. 01-1904 and 01-2056
[Filed September 16, 2003°]
WOLGAST CORPORATION,
Petitioner/Cross-Respondent,
¥.
NATIONAL LABOR RELATIONS BOARD,
Respondent/Cross-Petitioner.
ee ee ee ee
ON PETITION FOR REVIEW
and Cross-Application for Enforcement of an Order
of the National Labor Relations Board
No. 7-CA-42474
* This decision was originally issued as an “unpublished decision”
filed on September 16, 2003. On October 28, 2003, the court
designated the opinion as one recommended for full-text
publication.
3a
JUDGES: BEFORE: MERRITT and DAUGHTREY, Circuit
Judges, RUSSELL,” District Judge
OPINION
MERRITT, Circuit Judge. The central issue in this case
is whether nonemployee union representatives of the
organized employees of a construction subcontractor, whose
collective bargaining agreement contains a union access
clause, can be categorically barred from a construction jobsite
by the 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
conclude that Wolgast’s petition is without merit and therefore
issue an order of enforcement.
I. Background
Wolgast, a non-union general contractor that hires both
union and non-union subcontractors to do construction work,
was hired by Cinema Hollywood, LLC to construct an
addition to a movie complex. Wolgast subcontracted with
Acoustical Arts. Inc., a union contractor, for the required
acoustical installation. Acoustical’s carpenter employees were
represented by Local 706, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO. Article V, section c of the
Carpenters Local 706 collective bargaining agreement states,
in relevant part:
* The Honorable Thomas B. Russell, United States District Judge
for the Western District of Kentucky, sitting by designation.
4a
Business representatives shall have access to all jobs
at all times where possible. A representative of the
Michigan Regional Council of Carpenters shall have
the right to visit the job during working hours to
interview the employer, steward, or men at work, but
shall not hinder the progress of the work.
(J.A. at 85.) On October 13, 1999. Leon Turnwald, the
business representative and organizer for Local 706 went with
Robert Horner, the business representative from Local 1045,
the union representing the lathers employed by Acoustical, to
the Cinema Hollywood job site “to check on” a new
Acoustical employee. According to Turnwald, Brian Grandy,
a supervisory employee of Wolgast and the project’s
superintendent, ordered Turnwald off the property. Before
leaving the property, Turnwald discovered that the new
employee had already left the site before the end of his shift.
That evening, Turnwald spoke to the employee by telephone,
who said he could not work at the site because the scaffolding
was dangerous. Turnwald then spoke to John Binder, ‘the
owner of Acoustical, who said the scaffolding was safe.
Turnwald also learned that they had forgotten to sign up a
new lather while at the site. The next day, Turnwald and
Horner went to the site to check on the scaffolding and sign
up the employee. Once again, Grandy ordered them to leave
the property, this time “ranting and raving” and asking “what
the fuck are you guys doing here again?” Grandy grabbed
Turnwald’s arm and pulled him down a hallway until Horner
stepped between them. Grandy continued down the hallway,
and Turnwald proceeded to sign up the new employee at a
makeshift table made of a sheet of plywood resting on bats of
insulation. During this process. Binder came in and placed his
set of tools on the makeshift table. At some point. Horner and
Binder stepped outside for a moment. When Turnwald had a
question about the paperwork, he also stepped outside to ask
Sa
Horner how to fill it out. As they both began to reenter the
building, Grandy stood in the doorway blocking their access,
stating “You guys get the fuck out of here, you’re not coming
back in.” Turnwald brushed past Grandy and went back in to
finish the paperwork. Grandy then said to the new employee,
who was on his knees by the makeshift table filling out the
paperwork, “That’s all the fucking union does is take your
money,” to which the employee replied, “No, the union’s the
only way I can get ahead.” Announcing that he was going to
“clean up this area right here,” Grandy reached down,
grabbed the makeshift table and forcefully flipped it over so
everything on it, including Binder’s tools, flew off and onto
Turnwald. At this, Turnwald and Horner left the site,
_ apparently abandoning their plan to check the safety of the
scaffolding.
The administrative law judge ruled that Wolgast violated
section 8(a)(1) of the Act by interfering with Turnwald’s
access to the jobsite. Relying on CDK Contracting, 308
N.L.R.B. 1117 (1992), the judge ruled that the general
construction contractor with the asserted property interest is
obligated as a matter of labor law to yield its interest so that
the subcontractor’s employees’ section 7 right to be
represented by their chosen union and to receive the agreed-
upon benefits of that representation may be _ fully
implemented. The judge ordered Wolgast to allow Local 706
access to Acoustical employees when requested, subject to
any “reasonable and nondiscriminatory rules pertaining to
nonemployee access” Wolgast may put in place. On appeal to
the Board. Wolgast argued that CDK Contracting was
wrongly decided and that this case is instead controlled by
Lechmere v. N.L.R.B., 502 U.S. 527, 117 L. Ed. 2d 79, 112
S. Ct. 841 (1992). There, the Supreme Court held that an
employer may categorically exclude nonemployee union
organizers from its property subject to two narrow exceptions
6a
not applicable here. Finding that this case, like CDK
Contracting, presents “substantially different issues and
considerations” from those presented in Lechmere, the Board
rejected Wolgast’s argument and affirmed.
II. Analysis
Section 8(a)(1) of the National Labor Relations Act
provides that “it shall be an unfair labor practice for an
employer [] to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in section [7 of this
Act].” 29 U.S.C. § 158(a)(1). Section 7 provides in pertinent
part that “employees shall have the right to self-organization,
to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection..” 29
U.S.C. § 157. An employer therefore violates section 8 and
commits an unfair labor practice where it restrains or
interferes with employees’ section 7 rights. Lechmere, 502
U.S. at 531-32.
We review de novo the Board’s interpretation of Supreme
Court and Sixth Circuit decisions, and uphold the Board’s
“reasonably defensible” construction of the Act in the absence
of binding precedent. See Meijer v. NLRB, 130 F.3d 1209,
1212 (6th Cir. 1997). In determining whether the Board’s
construction of the Act is “reasonably defensible.” we keep
in mind that the “task of the Board, subject to review by the
courts, is to resolve conflicts between § 7 rights and private
property rights and to seek a proper accommodation between
the two.” Hudgens v. NLRB, 424 U.S. 507, 521, 96 S. Ct.
1029, 47 L. Ed. 2d 196 (1976) (internal quotations omitted).
As always, accommodation between employees § 7 rights and
employers’s property rights “must be obtained with as little
Ta
a
;
destruction of the one as is consistent with the maintenance of
the other.” NLRB v. Babcock & Wilcox, 351 U.S. 105, 76 S.
Ct. 679, 100 L. Ed. 975 (1956). We turn first to the Board’s
determination that Lechmere does not determine the outcome
of this case as a matter of law.
In Lechmere, union organizers distributed handbills on the
windshields of cars parked in a shopping plaza parking lot as
part of an effort to organize the employees of Lechmere,
Inc.’s retail store located at the shopping plaza. Lechmere
personnel removed the handbills and asked the union
organizers to leave. The administrative law judge ruled that
Lechmere had violated section 8 by barring the nonemployee
union organizers from its property. The Board affirmed,
relying on a multifactor balancing test developed in Jean
Country, 291 NLRB 11, 14 (1988). The Supreme Court
denied enforcement of the Board’s order, holding that, at least
as applied to nonemployee union organizers, Jean Country
impermissibly eliminated the threshold stage of the inquiry by
failing to make a distinction between employees and
nonemployees of the targeted employer. See Lechmere, 502
U.S. at 538 (citing Babcock & Wilcox, 351 U.S. at 112). The
Court reiterated the “distinction of substance” established in
Babcock & Wilcox between the organizing activities of
employees and nonemployees: “As a rule, then, an employer
cannot be compelled to allow distribution of union literature
by nonemployee organizers on his property.” Jd. at 533. As
explained by the Court:
To say that our cases require accommodation between
employees’ and employers’ rights is a true but
incomplete statement, for the cases also go far in
establishing the locus of that accommodation where
nonemployee organizing is at issue. So long as
nonemployee union organizers have reasonable access
8a
to employees outside an employer’s property, the
requisite accommodation has taken place. It is only
where such access is infeasible that it becomes
necessary and proper to take the accommodation to
the next level, balancing the employees’ and
employers’ rights ...
Id. at 538 (emphasis in original).
Lechmere thus reaffirms that, in the generic situation
presenting a conflict between the competing interests of
employees and employers, the primary responsibility to make
the proper accommodation lies with the Board, whose
determination is subject to review only for reasonableness. In
the specific case of nonemployee union organizers who
attempt to enter an employer’s property for purposes of
organizing, however, the Board does not even reach the
balancing stage of the inquiry: An employer may “post his
property against nonemployee distribution of union literature
if [1] reasonable efforts by the union through other available
channels of communication will enable it to reach the
employees with its message and [2] if the employer’s notice
or order does not discriminate against the union by allowing
other distribution.” Babcock & Wilcox, 351 U.S. at 112.
The Board’s pre-Lechmere decisions requiring the
contractor to allow union access to its unionized
subcontractor’s jobsite are founded on its view that the
represented employees’ § 7 rights “include the right to receive
the various services of union business agents which services
are necessary to police existing collective-bargaining
agreements or to negotiate new agreements.” See, e.g., Villa
Avila, 253 NLRB 76, 80 (1980), enf’d. as modified, 673 F.2d
281 (9th Cir. 1982); see also C.E. Wylie Constr. Co., 295
NLRB 1050, 1050 (1989). The administrative judge in Villa
9a
Avila further explained that, by hiring unionized
subcontractors to perform work on the jobsite, the general
contractors
have thereby invited these subcontractors to, in effect,
maintain a temporary place of business on the site, at
which locus the working conditions of the
subcontractors’ employees are necessarily established.
It may therefore be reasonably inferred that
Respondents, by hiring such subcontractors, thereby
“necessarily submitted their own property rights to
whatever activity, lawful and protected by the Act,”
might be engaged in by union business agents in the
performance of their duties vis-a-vis these
subcontractors who have contractually granted union
business agents unrestricted access to the site.
Villa Avila, 253 NLRB 76, 81 (1980) (quoting Hudgens v.
NLRB, 230 NLRB 414, 418 (1977) (on remand)). The Board
acknowledged that the union representatives were not
employees of the contractor or subcontractor, but reasoned
that under the factually distinct circumstances involving the
subcontractor’s employees’ own § 7 right to union access
under a collective bargaining agreement and the union’s
manifest representative capacity regarding that same right,
balancing was appropriate and the represented employees’
right outweighed the contractor’s right to control the
property. See id. at 80-81. According to the Board, the
common and accepted procedures in place at construction
sites requiring that the union representatives give notice of
their presence to the general contractor “effectively
accommodate the interests and obligations of ail parties.” Jd.
at 81.
10a
Just a few months after Lechmere was decided, the Board
relied on C.E. Wylie Construction Co. and Villa Avila to
reaffirm that a construction contractor must permit its
unionized subcontractor to allow union access pursuant to the
collective bargaining agreement between the subcontractor
and the union. See CDK Contracting, 308 NLRB at 1117.
The Board again distinguished the Supreme Court’s general
rule regarding nonemployee organizers as reaffirmed in
Lechmere, stating that CDK Contracting presented
“substantially different issues and considerations.” Jd. Under
these particular circumstances, “access is necessary in order
to investigate and to resolve contract compliance when the
contract grants the union such access.” /d. (citing Villa Avila,
253 NLRB at 81). Unlike the situation in Lechmere, the
contractor, “by soliciting other employers to perform work a
the jobsite. ‘invited’ subcontractors, and their respective
subcontractors, onto the jobsite, and thus voluntarily subjected
its ‘property rights’ to the Union’s contractual ‘access’ rights
with those contractors.” /d. As a result, “the Respondent
[contractor] was not privileged to interfere with the
contractual obligations of the subcontractors and the
contractual rights of the unions that represented subcontractor
employees.” /d. Finally, without access pursuant to the access
provision, the “Union did not have a reasonable, effective
alternative means to enforce its contractual rights.” /d.
Respondent Wolgast asserts here that the Board’s rule in
CDK Contracting stands as a “radical departure” from
Lechmere. In support, Wolgast points to the Court’s statement
in Lechmere that, “by its plain terms, ... the NLRA confers
rights only on employees, not on unions or their nonemployee
organizers.” 502 U.S. at 532 (emphasis in original).
According to Wolgast, this statement provides a “trump card”
by predetermining that every nonemployee union
representative can be barred from its property, regardless of
lla
his purpose or relationship with employees located on the
jobsite, in the same manner as the nonemployee union
organizer in Lechmere. Wolgast further points out that this
court has construed Lechmere to extend beyond the purely
organizational situation to apply to situations involving other
nonemployee union activities. See, e.g., Albertson's Inc. v.
NLRB, 301 F.3d 441, 454 (6th Cir. 2002) (holding that,
under Lechmere, an employer may bar nonemployee union
representatives from distributing handbills on the employer’s
property informing the employer’s patrons of the union’s
economic strike with one of the employer’s suppliers);
Sandusky Mall v. NLRB, 242 F.3d 682, 686 (6th Cir. 2001)
(applying Lechmere in a case involving “area standards”
handbilling by nonemployee union representatives urging
shoppers not to patronize a store hiring a non-union
contractor); Cleveland Real Estate Partners v. NLRB, 95 F.3d
457 (6th Cir. 1996), overruled on other grounds in NLRB v.
Webcor Packaging, Inc., 118 F.3d 1115, 1119 (6th Cir.
1997) (applying Lechmere to handbilling by nonemployee
union representatives urging a boycott of a nonunion store at
a strip mall).'
' Wolgast also relies on NLRB v. Windemuller Electric, Inc., 34
F.3d 384 (6th Cir. 1994), in which a panel of this court relied on
Lechmere to hold that an employer can lawfully prevent its
unionized employees from placing union stickers on their employer-
owned hardhats. A later panel of this court rejected Windemuller’s
reasoning, however, insofar as it treated the employees’ right to
wear union insignia as a matter of property rights under Lechmere
rather than of employees’ organizational rights under Republic
Aviation. See Meijer Inc. v. NLRB, 130 F.3d 1209, 1217 (6th Cir.
1997) (holding that under the balancing test in Republic Aviation,
324 U.S. 793, 89 L. Ed. 1372, 65 S. Ct. 982 (1945), “employees
have a right to wear union insignia” on employer-owned uniforms).
12a
In our view, Lechmere and the cases cited from our court
are readily distinguishable from this case. Most significantly,
the union agent at issue here did not seek access for purposes
of organizing employees, handbilling patrons, boycotting, or
other similar activity in exercise of the union’s “derivative”
§ 7 rights. Rather, Turnwald sought access as the direct
representative of the subcontractor’s employees under the
authority of the collective bargaining agreement. In our view,
at issue here is the employees’ own undisputed § 7 right to
negotiate and benefit from a collective bargaining agreement
which allows union access for purposes of investigating the
premises and interviewing employees on-site. Neither
Lechmere nor any of our cases address union access for
representational ourposes.
In any event, we have stated elsewhere that Lechmere’s
statement that the Act “confers rights only on employees” is
not so expansive as Wolgast suggests. In BE&K Construction
Co. v. NLRB, 246 F.3d 619, 626-27 (2001), rev’d on other
grounds, 536 U.S. 516, 122 S. Ct. 2390, 153 L. Ed. 2d 499
(2002), we were faced with the question whether a union
whose members work for construction subcontractors possess
a § 7 right that could potentially be violated by the nonunion
contractor-employer when the employer filed baseless
lawsuits in retaliation for the union’s activities. In concluding
that unions possess such a § 7 right, we distinguished
Lechmere as specifically involving nonemployee union
organizers attempting to distribute organizational literature on
an employer’s property. Jd. at 627. We further noted that, by
allowing exceptions to its rule, “the Court ... recognized that
§ 7 of the Act, by necessary implication, extended some
legislative protection to unions.” Jd. at 626.
As a general matter, it is a reality inherent in construction
work that a construction subcontractor’s employees work on
13a
ooo
the property of another. The Board has set forth reasons that
adequately take into account the specific circumstances
presented here, carefully considering the asserted property
rights of the contractor and the accommodations required
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.
The administrative law judge found no credible evidence that
there were such rules or that they were conveyed to the union
agent. This finding was undisturbed by the Board, and we
cannot say it is clearly erroneous. We need not address
Wolgast’s other arguments, as they are wholly without merit.
IiI.Conclusion
In CDK Contracting, the Board correctly concluded that
Lechmere did not control the outcome of the case. In
14a
exercising its authority to strike the proper balance between
the property interests of a construction contractor and the
interests of the employees of its unionized subcontractors to
benefit from their collective bargaining agreement, the Board
has created a rule that is both “reasonably defensible” and in
accord with the guiding principle of labor law. Accordingly,
we DENY Wolgast’s petition for review and GRANT the
Board’s request for enforcement of its order.
15a
APPENDIX C
NATIONAL LABOR RELATIONS BOARD
LEXSEE 334 N.L.R.B. 203
Case 7-CA-42474
[Filed June 5, 2001] —
Wolgast Corporation and Local 706,
United Brotherhood of Carpenters &
Joiners of America, AFL-CIO
DECISION AND ORDER
By Members Liebman, Truesdale, Walsh
On October 25, 2000, Administrative Law Judge Martin
J. Linsky issued the attached decision. The Respondent filed
exceptions and a supporting brief. In addition, the Associated
Builders and Contractors, Inc. filed a brief as amicus curiae
in support of the exceptions filed by the Respondent.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm the
l6a
judge’s rulings, findings,’ and conclusions as modified and to
adopt the recommended Order as modified.
In October 1999,” the Respondent, a nonunion general
contractor, was engaged to construct a theater complex in
Birch Run, Michigan. Respondent hired ten subcontractors to
work on this job, including Acoustical Arts, Inc. Local 706,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, represented Acoustical Arts’ carpenter employees.
On October 14, Local 706 organizer Leon Turnwald visited
the jobsite to investigate a safety complaint of member Ray
Cotton. According to Turnwald’s credited testimony, the
Respondent’s project superintendent, Brian Grandy, ordered
Turnwald off the jobsite and engaged in other physical
conduct designed to interfere with Turnwald’s access to
Acoustical Arts’ employees on the jobsite.
The contract between Acoustical Arts and Carpenters
Local 706 contains a union access clause stating that
business representatives shall have access to all jobs at
all times where possible. A Representative of the
Michigan Regional Council of Carpenters shall have
the right to visit the job during working hours to
' The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing the findings.
2 All dates hereafter refer to 1999, unless otherwise indicated.
17a
interview the Employer, Steward, or men at work but
shall not hinder the progress of work.
We agree with the judge that the Respondent violated
Section 8(a)(1) of the Act by interfering with a Local 706
official’s access to the jobsite pursuant to the access provision
in the Union’s collective-bargaining agreement with
Acoustical Arts.* We agree with the judge that the holding in
CDK Contracting Co. , 308 NLRB 1117 (1992), is controlling
in this case. In CDK, we harmonized our holding with the
Supreme Court’s decision in Lechmere, Inc. v. NLRB, 112
S.Ct. 841 (1992). We find no merit to the Respondent’s and
amicus’ contention that CDK was wrongly decided or is in
conflict with Lechmere.‘
> Turnwald was accompanied by Robert Horner, a representative
of a Lathers local of the Carpenters and Joiners Union. The judge
also found that the Respondent unlawfully interfered with Horner’s
access to employees he represented. The access provision on which
the judge relied is contained in a 1989 contract between Lathers
Local 1028 and Acoustical Arts. In 1996 Local 1028 merged into
Local 1045 of the Carpenters and Joiners Union. There is
insufficient evidence in the record to find that the access provision
in the 1989 contract remains in effect. Therefore, we do not adopt
this violation. We shall modify the conclusions of law,
recommended Order, and notice to reflect the violation we are
finding.
* In such cases as this one, where the exercise of Sec. 7 rights by
nonemployee union representatives is assertedly in conflict with a
respondent’s private property rights, the respondent bears a
threshold burden to establish that it possessed a property interest
which entitled it to exclude individuals from the property. See R&R
Plaster & Drywall Co., 330 NLRB No. 22 (1999); Indio Grocery
Outlet, 323 NLRB 1138, 1141 (1997), enfd. 187 F.3d 1080, 1095
(9th Cir. 1999). The judge did not address whether the Respondent
18a
We also find no merit to the Respondent’s contention that
the Union was not entitled to access because there were no
Acoustical Arts carpenter employees on the jobsite on
October 14. The access provision of the contract does not
restrict the Union’s visitation right to days when employees
it represents are present at the jobsite and, moreover, the
purpose of Union Official Turnwald’s visit on October 14
was, as noted above, to investigate a safety complaint lodged
by a union member who worked on the jobsite the day before.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3.
“3. Respondent violated Section 8(a)(1) of the Act when it
unlawfully refused and otherwise interfered with Local 706,
United Brotherhood of Carpenters & Joiners of America,
AFL-CIO’s right to enter the Cinema Hollywood jobsite.”
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law judge as
modified below and orders that the Respondent, Wolgast
Corporation, Saginaw, Michigan, its officers, agents,
met that burden here. However, no party has excepted to the
judge’s failure to address this issue. Additionally, as indicated
above, we are adopting the violation found by the judge with
respect to Local 706, and ordering the Respondent to cease and
desist from interfering with Local 706’s right to enter jobsites to
communicate with represented employees and from interfering with
the exercise of Sec. 7 rights in any like or related manner. Under
these circumstances, we find it unnecessary to pass on the issue of
the Respondent’s property interest.
19a
EEE
successors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Unlawfully refusing or otherwise interfering with
Local 706, United Brotherhood of Carpenters & Joiners of
America, AFL-CIO’s right to enter the Cinema Hollywood
jobsite or any other jobsite for the purpose of representing
employees under its collective-bargaining agreement with the
Union.”
2. Substitute the following for paragraph 2(a):
“(a) On the Union’s request, permit it to enter the Cinema
Hollywood jobsite or any other jobsite for the purposes of
representing the employees of Acoustical Arts, Inc. under its
collective-bargaining agreement with the Union, provided,
however, that Respondent is not prevented from applying
reasonable and nondiscriminatory rules pertaining to
nonemployee access.”
3. Substitute the attached notice for that of the
administrative law judge.
Dated, Washington, D.C. June 5, 2001
Wilma B. Liebman, Member
John C. Truesdale, Member
Dennis P. Walsh Member
20a
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Case No. 01-1904
NLRB Case No.: 7-CA-42474
[Filed June 29, 2001]
WOLGAST CORPORATION,
Petitioner,
-and-
NATIONAL LABOR RELATIONS BOARD,
Respondent.
Nee eee eee Se”
DAVID JOHN MASUD (P37219)
Masud, Gilbert & Patterson, P.C.
Attorneys for Respondent
4449 Fashion Square Boulevard
Saginaw, Michigan 48603
(989) 792-4499
JOSEPH CANFIELD
Counsel for the General Counsel
National Labor Relations Board
Region 7
477 Michigan Avenue - Room 3 00
Detroit, Michigan 48226
(313) 226-7678
2la
PETITION FOR REVIEW
Wolgast Corporation, hereby petitions this Court for
review of the Order of the National Labor Relations Board
affirming the administrative law judge’s rulings, findings and
conclusions as modified, and adopting the recommended
Order of the administrative law judge as modified which was
entered on June 5, 2001. Petitioner brings this petition
pursuant to 29 USC § 160(f).
Dated this 26" day of June, 2001.
Respectfully submitted,
MASUD, GILBERT & PATTERSON, P.C.
Attorneys for Respondent
BY:/s/
DAVID JOHN MASUD (PS7219)
4449 Fashion Square Boulevard
Saginaw, MI 48603
(989) 792-4499
22a
APPENDIX E
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS
BOARD
CASE 7-CA-42474
[Filed October 25, 2000]
WOLGAST CORPORATION
and
LOCAL 706, UNITED BROTHERHOOD
OF CARPENTERS & JOINERS OF
AMERICA, AFL-CIO
Nee Nee ee eee ee”
ORDER TRANSFERRING PROCEEDING TO THE
NATIONAL LABOR RELATIONS BOARD
A hearing in the above-entitled proceeding having been
held before a duly designated Administrative Law Judge and
the Decision of the said Administrative Law Judge, a copy of
which is annexed hereto, having been filed with the Board in
Washington, D.C.,
IT IS HEREBY ORDERED, pursuant to Section 102.45
of National Labor Relations Board’s Rules and Regulations,
that the above-entitled matter be, and it hereby is, transferred
to and continued before the Board.
23a
en
Dated, Washington, D.C., October 25, 2000.
By direction of the Board: John J. Toner
NOTE:
Executive Secretary
Communications concerning compliance wi.h the
Decision of the Administrative Law Judge should
be with the Director of the Regional Office issuing
the complaint.
Attention is specifically directed to the excerpts
from the Rules and Regulations appearing on the
pages attached hereto. Note particularly the
limitations on length of briefs and on size of
paper, and that requests for extension of time
must be served on the parties in the same or
faster manner as used in filing the request with
the Board.
Exceptions to the Decision of the Administrative
Law Judge in this proceeding must be received by
the Board’s Office of The Executive Secretary,
1099 14th Street N.W., Washington, D.C. 20570,
on or before NOVEMBER 22, 2000.
24a
APPENDIX F
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS
BOARD DIVISION OF JUDGES
Case 7-CA-42474
[Decided October 25, 2000]
WOLGAST CORPORATION
and
LOCAL 706, UNITED BROTHERHOOD
OF CARPENTERS & JOINERS OF
AMERICA, AFL-CIO
wee eee eee ee”
Joseph Canfield, Esq.,
for the General Counsel.
David John Masud, Esq.,
(Masud, Gilbert, & Patterson, P.C.),
of Saginaw, Michigan,
for the Respondent.
DEU) Sik »N
Statement of the Case
MARTIN J. LINSKY, Administrative Law Judge: On
October 14, 1999 Local 706, United Brotherhood of
25a
Carpenters and Joiners of America, AFL-CIO, filed a charge
in Case No. 7-CA-42474 against Wolgast Corporation, herein
Respondent.
On December 28, 1999, the National Labor Relations
Board, by the Regional Director for Region 7, issued a
Complaint which alleges that Respondent violated Section
8(a)(1) of the National Labor Relations Act, herein the Act,
when on October 14, 1999 Respondent unlawfully interfered
with the rights of the charging party union, Local 706, and
Local 1045 of the United Brotherhood of Carpenters and
Joiners, to access to a jobsite under contractual provisions the
Unions had with Accoustical Arts, Inc., a subcontractor
working for Respondent on the Cinema Hollywood jobsite in
Birch Run, Michigan. According to the Complaint
Respondent interfered with the Unions’ right to access by
actions including ordering the Unions’ business agents off the
jobsite, attempting to forcibly lead a union agent off the
jobsite and blocking his ingress into an area on the jobsite,
and physically disrupting the activities of the Unions’ agents
and their interactions with employees.
Respondent filed an Answer in which it denied that it
violated the Act in any way.
A hearing was held before me in Saginaw, Michigan, on
March 30, March 31, and June 13, 2000.
I find for the General Counsel and conclude that
Respondent violated the Act as alleged in the Complaint.
Based on the entire record in this case to include post hearing
briefs submitted by the General Counsel and Respondent on
August 1, 2000 and upon my observation of the witnesses and
their demeanor I make the following
26a
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I. Findings of Fact
At all material times, Respondent, a corporation, with an
office and place of business in Saginaw, Michigan, has been
engaged as a general commercial contractor in the
construction industry.
During the calendar year ending December 31, 1998,
Respondent purchased goods and materials in excess of
$ 50,000 from points located outside the state of Michigan
and caused said goods and materials to be shipped directly to
its building sites within the state of Michigan.
Respondent admits, and I find, that at all material times,
Respondent has been engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.
Respondent also admits, and I find, that at all material
times, a contract between Respondent and Accoustical Arts,
Inc., has been in effect whereby Accoustical furnishes
construction services to Respondent at the Cinema Hollywood
jobsite, located in Birch Run, Michigan.
II. Labor Organizations Involved
Respondent admits, and I find, that at all material times,
the Charging Party Union and Local 1045, United
Brotherhood of Carpenters and Joiners of America, AFL-
CIO, herein collectively called the Unions, have been labor
organizations within the meaning of Section 2(5) of the Act.
27a
III. The Alleged Unfair Labor Practice
A. Facts
Respondent, a general contractor, had an $ 800,000
contract to add four theaters to a Cinema Hollywood movie
complex in Birch Run, Michigan.
Respondent is non-union and had 10 subcontractors
working for it at the Cinema Hollywood jobsite. One of the
subcontractors was Accoustical Arts, Inc., which had a
$ 80,000 contract with Respondent to perform certain
accoustical work at the jobsite. The contract between
Respondent and Accoustical Arts was a bid contract (so much
to do the job) rather than a time and material contract.
Accoustical Arts has contracts with the two Locals
involved in this case, which contracts were in effect in
October 1999.
Accoustical Arts’ contract with the charging party union
Carpenters Local 706 contains in Article V Section (c) the
following language:
“Business Representatives shall have access to all jobs
at all times where possible. A Representative of the
Michigan Regional Council of Carpenters shall have
the right to visit the job during working hours to
interview the Employer, Steward, or men at work but
shall not hinder the progress of the work.”
Accoustical Arts had a contract with Carpenters Local
1028-L, which merged into Local 1045. In its contract with
Local 1028-L and then with Local 1045 once Local 1028-L
28a
RE es = Reh Maret ee a Tot Rel tan tell RD SCAT OD ned AME Ne COS Bk Pg MG
x
merged into Local 1045 contained the following language in
Article VIII Section 1:
“Authorized representatives of the Union shall have
the right to visit the job or jobs of the Employer where
journeymen Lathers and Apprentices are employed, to
investigate conditions at any time, but they shall not
interfere with the progress of the work. The
Contractor shall not be held liable for any
representative of the Union visiting the job.”
Both Local 706 and Local 1028-L, which later merged in
1996 into Local 1045, were Locals under the jurisdiction of
the United Brotherhood of Carpenters and Joiners of
America, AFL-CIO. Carpenters and carpenter apprentices
were members of Locai 706 and lathers and lather apprentices
were members of Local 1045. Both Locals should shared
space in the same office in Saginaw and the same secretary in
that office handled the paperwork for both Locals.
GC Exh. 2A is the controlling contract between
Accoustical Arts and Local 706. GC Exh. 2B is the
controlling contract between Accoustical Arts and Local
1028, which later became Local 1045 as reflected in GC Exh.
14. GC Exh. 4 is the signatory page wherein Accoustical Arts
agreed to be bound by GC Exh. 2B.
Respondent Exhibit 2 is a contract between Accoustical
Arts and Local 1045 which covers parts of the state of
Michigan not involved in this litigation. As GC Exhs. 5 and
6 (Fringe Benefit Reports) and the testimony at trial reflect it
was GC Exh. 2B which was the applicable contract governing
lather and lather apprentice employees of Accoustical Arts in
October 1999 at the Cinema Hollywood jobsite.
29a
B. Events on October 13 and October 14, 1999
The unfair labor practice allegations are alleged to have
occurred on October 14, 1999. But the events of
October 14, 1999 are best put in perspective by looking at the
events of both October 13 and October 14, 1999.
The Union went to the Cinema Hollywood jobsite to visit
employees of Accoustical Arts, Inc.
Accoustical Arts was at the site between the first week in
October and November 12, 1999 when the job ended. The
Union visited the site on only October 13 and 14, 1999.
This is a case that turns in large part on credibility. The
principal witnesses for the General Counsel on what occurred
on October 13 and 14, 1999, are Leon Turnwald, an
organizer for Local 706, and Robert Horner, an organizer out
of Local 1045, a statewide local, but assigned to the Local
706 area of Michigan which includes Saginaw and Birch Run.
I found both Turnwald and Horner to be very credible
witnesses. They impressed me as honest men and I credit
their testimony.
_On October 13, 1999 Turnwald and Horner visited the
Cinema Hollywood jobsite around 11 AM. They went there
to see a new member of Local 706, Ray Cotton, who had just
started work for Accoustical Arts to see how he was getting
along and to look for a couple of other members, Mark
Bigelow and Rusty Schroder, to see if they were working at
that jobsite. Neither Bigelow nor Schroeder were working at
that site and Ray Cotton had shown up to go to work but left
the job before Turnwald and Horner got there according to
foreman Tim Paquette.
30a
According to Turnwald he encountered Brian Grandy at
the jobsite and had a confrontation with him. Again, this is
October 13 and the unfair labor practice is alleged to have
occurred on October 14. Brian Grandy was the project
superintendent for Respondent and is admitted by Respondent
to be a supervisor and agent of Respondent within the
meaning of Section 2(11) and (13) of the Act.
According to Turnwald, whom I credit, the following
occurred:
“A [Brian Grandy] was up a little ways: There’s a
long hall way that leads into the main room and he
was coming down the hallway.
Q When, if ever, had you seen Mr. Grandy before?
A_ I believe I had met him sometime ago. It would
have been on National City Bank on Michigan herein
Saginaw.
Q Was that a job site-
A Yes.
Q - you’re referring to?
A
Yes.
Q Okay. So what conversation, if any, was there
between you and Mr. Grandy at that point?
A He recognized me for whatever reason and he was
just, you know, what’re you doing here, what’d you
want, get your business done and get out.
3la
Q What time did you leave that job site that day?
A We weren’t on that job site that day more than ten
minutes and I say ten minutes. You know, it must
have taken that long, but, really, in everything that
went on, it had to have been less than ten.”
Later that day Turnwald called Ray Cotton and asked why
he left the job. Cotton told him that he would be required to
work on scaffolding that he (Cotton) thought unsafe.
Turnwald later spoke with John Binder, the owner of
Accoustical Arts, who said the scaffolding was safe. And
Turnwald also learned that they could have and should have
signed up Kevin Culbert, a new employee of Accoustical
Arts.
The following day, October 14, 1999, Turnwald and
Horner went back to the Cinema Hollywood jobsite in order
for Turnwald to check on the scaffolding and for Horner to
sign up Keith Culbert into the Union as an apprentice lather.
According to Turnwald, whom I credit, this is what
happened when he and Horner arrived at the jobsite and
encountered Brian Grandy:
“Q Okay. And was there a conversation with Mr.
Grandy at that time?
A Yes.
Q What did he say?
A He- he started- he started ranting and raving. He
said what the fuck are you guys doing here again.
32a
Q What was his tone of voice?
A Very, very loud. Very angry. Very abusive.
Q How long were you on the job site when you ran
into Mr. John Grandy?
A_ It couldn’t have been over a minute or two.
Q Okay. What else do you remember him saying?
A You know, he, basically, he was just screaming,
you know, what was our business there and to get the
fuck out of here, and I said, well, we’ve got to talk to
our members, and he said you talk to those ass holes
out in the parking lot, and I said no, I’m going to talk
to them here, and he started screaming that he was
going to call Pat Wolgast and he would throw me out.
Q What, if- what, if anything, else do you remember
him saying?
A I reached in my pocket and tried to hand him a
quarter and I said here’s a quarter, go call Pat, I’ve
got work to do.
Q Other than Mr. Grandy screaming, I think you
described-
A Yes.
Q - what, if anything else-was there any other
conversation?
33a
4
d
"
ee
A
Q
He grabbed on my arm and tried to lead me down
the hallway on the way out.
When you say grabbed on your arm, what do you-
can you describe for the court how he did that?
A
Just he was standing in front of me. He grabbed at
my arm to pull me.
Q
A
Q
A
> OH FF #A
©
>
He grabbed at your arm with his hand?
Right.
One hand or two hands?
One hand.
Okay. And you say he sort of pulled you?
Yes.
Pulled you where?
Tried to pull me down the hall.
And what happened?
I just brushed it off and at that time Mr. Horner
came through and kind of stepped in between us.
Q
A
Ad what happened then?
He says don’t worry about giving him a quarter,
he’s got a cell phone, he can go make a call.
34a
Q Okay.
A And Mr. Grandy turned around and walked down
the hallway the other way.
Q Other than touching you that, day, who else. If
anyone, did Mr. Grandy touch?
A I believe Mr. Horner, because, when he came in,
he- he was talking to Mr. Horner as he came down the
hallway to-towards me.
Q Okay. When you say you believe, did you see
that?
A Yes. Because they- they turned the corner and they
were both right there.
Q And I asked if he touched anyone else and you
said Mr. Horner. In what manner did he touch Mr.
Horner?
A I believe he was leading Mr. Horner into that
room.
Q By leading, what do you mean?
A By the arm.
Q So you say you- Did you hand Mr. Grandy a
quarter or no?
A No. I reached out to gesture and he didn’t take it.
Q What happened then?
35a
A_ Then we came back. The gentleman-
Q Let me ask you what happened with Mr. Grandy
and yourself then. Did you remain together?
A No. Mr. Grandy walked back up the hallway.
Q Okay. So where did you go then?
A Back into the main room. The- who I found out
later to be Kevin Culbert came back into the room and
I asked him who he was and he was the new hire for
Accoustical.
Q_ Kevin Culbert?
A_ Yes. I believe that was it.
Q And so what happened when you went into the
main room?
A We had some paperwork there for him to fill out.
His member-
Q Mr. Culbert?
A Yes.
Q Okay.
A His membership and, oh, his health benefit cards
and a form for the apprenticeship. He was coming in
as an apprentice and he had to fill out this form for
that. So there was a make- shift table. Below the table
I believe it was bats of insulation, some things like
36a
PSA st ia ATS A PSOE
ee ee A ee ee
that, a large piece of plywood or some kind of
Durasand board or something that we was using for a
tabletop and he commenced to fill out the paperwork.
Q Okay. And, while he was doing thai, was, if
anything happened?
A I believe sometime in the process of doing that the
owner of Accoustical Arts came in, Mr. Binder, and
he set his tools down on there. There were screws and
other things and-
Q Mr. Binder set his tools down?
A Yes. He carried in his tool belt. And there was
some screw guns there and some other things.
Q So that Mr. Binder comes in, lays his tools down
on this make-shift desk top, and Mr. Culbert is filling
out the papers?
A Yes.
Q Did you- was there a conversation with Mr.
Binder about you and Mr. Horner?
A Mr. Horner had a conversation with him like that.
Q And where did that occur?
A_ I believe at that moment those two walked outside
to get away from the men there and walked outside the
door and went outside the building.
37a
“
Q Did you have occasion to talk to Mr. Binder and
Mr. Horner outside?
A Just briefly.
Q And what caused that?
A_ In the process of filling out all the paperwork, all
the paperwork was fine except for there was a portion
of the apprenticeship. This gentleman was coming in
as a lather’s apprentice and the lather’s apprenticeship
school is a little bit different program than the
carpenter apprenticeship program is. There was some
questions on there that weren’t clear to me. So I exited
the building to ask Mr. Horner how he should finish
filling that out.
Q And what happened then?
A Mr. Horner explained to me and he said, well, I'll
come back in and show him how do it, and we turned
around to go back into the building.
Q And, going back into the building, you were
entering through what?
A_ Through the same exit door on the side there.
Q Okay. And what happened then?
A Mr. Grandy was standing in the doorway and just,
you know, you guys get the fuck out of here, you’re
not coming back in.
Q Do you remember anything else he said?
38a
iamsfenienneiignatiiamsidenieaiiaiiatninininhaniatnateadinenindnminhriaiiecimiminiiieiiE tee ee
RE ss Shas cis ey eee eee < ape tig os meeies oo amc
A I told him we’ve got work to do in there, and he
Says, again, if you gotta talk to those ass holes, do it
out in the parking lot?
Q Do you remember anything else that he said then?
A Just that, if they gotta fill out paperwork, they can
do it out in the parking lot, and I said it’s a lot warmer
in here and I pushed him aside and went back in.
Q Is there anything else you remember being said
then?
A I just told him I had business to complete in there,
I had to go back in and get the paperwork. That’s
about it.
Q Okay. So you don’t remember at this point other
things being said?
A No.
Q What, if anything, do you remember Mr. Grandy
saying about disrupting work?
A Right. He had mentioned in through that that
you're not going to disrupt, you’re not going to stop
my guys from working, you’re not going to disrupt
this job site, and I told him these are not your guys
and we’re not disrupting the job site and we’re not
going to bother anybody here, we’re not going to be
holding anybody up from doing their work.
Q At that point, how long were you on the job?
al
39a
A At that point, possibly- possibly- seven to ten
minutes.
Q Okay. When, if ever, did you have any
conversations with any of the contractor’s employees?
A It was just a little bit. Maybe then- They kept-
MR. MASUD: Excuse me. What contractor?
| MR. CANFIELD: The contractor’s employees.
MR. MASUD: Which contractor?
MR. CANFIELD: Thank you.
Q BY MR. CANFIELD: When, if ever, did you
have any conversations with Wolgast employees?
A Yes. At- at about that point, Mr. Grandy came
down with a person that he called Keith and he said to
Keith tell him- referring to me- tell him to get out of
here, get off the job site, he can’t be here.
Q And what did Keith say?
A And Keith he just kind of looked at me and rolled
his eyes and he said you guys go something to do
here, and I says, you know, we’re here representing
our members, we’ve got to sign a guy up, we’re
taking care of union business, and he said something
to the effect did you check in, and I says, if we were
supposed to check in, it seems like he would have told
me that yesterday and we’re not checking in, we’re
going to get this done and go. Keith said he can’t
40a
actnndtiniiainnimiunade acho ee ee
a
throw you off, and Keith walked around to the back
and went up and he had a hog grinder. He was
grinding some metal.
Q What a hog grinder?
A It’s a large disc grinder.
Okay. Keith says he can’t thrown you off?
Yeah.
Who did you understand him to be referring to?’
Brian.
Okay. Do you know who Keith was?
> O + OH PF BL
I would say by the nature he aay have been a
ittle- a cement man, a cement finisher?
—_—-
Q_ So you doi't know who he was?
A No, I don’t.
Q Okay. So other than Mr. Grandy and, perhaps,
Keith, what other Wolgast employees, if any, did you
have any conversations with?
A I didn’t have any other conversation with any. I
only recognized what I thought to be one other
Wolgast on that job and that was a younger guy, dark
complexioned, rather large.
Q Did you have any conversation with him?
4la
IES —————— ID
A No.
Q Okay. So- okay- so let’s see. Did the conversation
with Grandy and Keith occur after Mr. Grandy was
standing in the doorway saying you’re not going to
come in?
A I believe that was before that.
Q So, when Mr. Grandy was standing in the
doorway saying you’re not coming back in, what
happened?
A I told him I had to go in there and get my
paperwork and Finish that up, and leaned to one side
and I brushed by him, because I made a gesture like
I was going to go in close and he leaned that way and,
as soon as he did that, I just blew by him.
Q And what happened when you went inside?
A We went in there, instructed the apprentice on how
to complete finishing it out. There was some
conversation as to how much the books would cost,
and Mr. Grandy said something to the effect as that’s
all the fucking union does is take your money, and the
young gentlemen filling it out says no, the union’s the
only way I can get ahead. And we said, boy, you’re
going to make a great guy, and then Mr. Grandy
stated, well, you said to me you wouldn’t interfere
with anything I had to do here, you weren’t going to
bother the men, and I said, well, that’s right, and he
says, well, then, I’m going to clean up this area right
here and he reached down and grabbed the work table
42a
and flipped it up in the air so all the tools and
everything would fall on me.
Q Other than the tools, what else was on the work
table?
A My hard hat was sitting on the work table. There
was screws sitting on the work table. Different things
like that.
Q Where was the paperwork that Mr. Culbert had
filled out?
A That was on there. He was in the process. He
wasn’t completely done with the paperwork.
Q So what was Mr. Culbert doing when Mr. Grandy
flipped over the table?
A He was down on his knees. Like he had to be
down quite low to be filling out the paperwork.
Q_ So he was- he continued- he was continuing to fill
out the paperwork when Mr. Grandy flipped the table?
A He may not have been actually writing, but the
paperwork wasn’t completed and that’s where he was,
in the process.
Q And he was still on his knees at the table?
A Yes.
Q And what happened with the- what kind of table
top was it? Can you described it?
43a
———
A Again, I think it might have been a piece of- it
may have even been a piece of drywall.
Q How big?
A 4x6. Something. I wasn’t- it wasn’t a full sheet.
If it was a piece of plywood, it was- it was quite
dusty. You know, it had to have been in there and,
again, it wasn’t a full sheet.
Q So what happened to the table top when Mr.
Grandy flipped it?
A It fell down in front of me. It just caught the edge
of my shoes, but the tools and everything fell on me.
Q And what happened next?
A And I just, you know, said that was a really a
smart thing to do. Mr. Binder came in there and he
just kind of stepped in between us and he says, you
know, you guys do whatever you gotta do, but these
are my tools, you know, let’s not be wrecking them.
And he-he picked them up.
Q And then what happened then?
A Mr. Grandy walked up the hallway and he was up
there doing something. The apprentice finished clean-
or filling out his paperwork and we left.
Q Okay. And how long were you on the site, in
total, by the time you left?
A_ It had to be less than 15 minutes.”
44a
Robert Horner’s version of events on October 13, 1999 was
as follows:
“Q What time of day did you go?
A It was before lunch sometime.
Q And what was your purpose of going there?
A My purpose in going there was to see Ray Cotton
and-
Q Who was-
A - and to look for Rusty Schroeder and Mark
Bigelow.
Q What was the purpose of seeing Cotton, though?
A I had sent him- He had transferred in here from
Ohio and I don’t remember the town where he
transferred, but he had transferred in and I was the
only one in the office when he came in that very first
day and I told him we could use some ceiling guys and
that’s what he had expressed to me that he was and I
had sent him to two or three different subcontractors
and he seemed to last a day or two and then would
either not show up or would get laid off and I wanted
to check to see how he was doing for John.
Q Okay.
A See if there was no problems.
Q By John, you mean John Binder?
45a
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ee ee ag eg ee ee Oe a ae ee ee ee ee ee ee re aT ee |
A John Binder, yeah.'
Q Okay. So, when you got there, let’s see, you went
into the building, is that correct?
A_ Yes, sir.
Q And who did you speak to first?
A Mr. Grandy.
And was that in- Where did that occur?
> ff
It was in the hallway.
And what is it that was said?
(2)
A He asked me who I was and I told him, I
introduced myself, and asked him where Accoustical
Arts guys were at and he said he wasn’t sure. We
walked down the hall and turned the corner and I saw
Tim Paquette, who works for Accoustical Arts, in a
big, rather large room.
Q Okay. And, when you went in, who’d you speak
to?
A Tim.
Q And who was there speaking to Tim besides
yourself?
' John Binder is the owner of Accoustical Arts.
46a
A _ I believe Leon had found him by now.
Q Okay.
A I think he went in another door.
JUDGE LINSKY: What’s Tim’s last name
again?
THE WITNESS: Paquette
JUDGE LINSKY: Do you know how to spell that?
THE WITNESS: P-a-q-u-e-t-t-e.
JUDGE LINSKY: Oh, yeah. Okay.
Q MR. CANFIELD: And what was the conversation
with Mr. Paquette?
A I asked him where Mr. Cotton was and he
explained to me that he got there in the morning and
Ray was there- Mr. Cotton was there. He explained to
Mr. Cotton what had to be done and Tim said, you
know, he said his tools were out in the truck or
whatever and Tim went into the next room or
whatever and came back and Mr. Cotton left. I guess
deciding that it was unsafe to work, I found out later.
Q So your understanding with it at that point when
you first spoke to Mr. Paquette he didn’t know Mr.
Cotton had left?
47a
A No. He knew he had left. He said he just turned
around and he never- and he went outside to get his
tools or whatever and-
Q Isee.
A -and, he came back, there was- he was not found.
Q Other than Mr. Grandy telling you or asking Mr.
Grandy where the Accoustical employees worked,
what other conversations, if any, did you have with
Mr. Grandy?
A He said just get your business done and, you
know, please, leave, and I said, well, it’s only going
to take a second and I’ll be gone.
Q What was his tone of voice when he said that?
A_ It was okay. It wasn’t- it was- it was a little bit,
maybe, agitated would probably be the best word.
Q Where were you when he said that? What were
you doing then?
A In the hallway.
And what were you doing at the time?
Trying to find the Accoustical Arts people.
So that’s when you first walked in?
> HO F- #A
Yeah, that was when I first walked in the door.
48a
Q How long were on the job, on the site, altogether
that day?
A. Total from the time we drove in to the time we
drove out, maybe ten minutes.
Q Okay. Did-
JUDGE LINSKY: Now was- Cotton was
going to be a 1045 member or-
THE WITNESS: No. He was a- he was a
Carpenter member.
JUDGE LINSKY: Okay.
THE WITNESS: But I, like I say, Leon takes
care of my members, I take care of Leon’s
members. It’s a- it’s a mutual thing. They all
fall under the Carpenter umbrella and, because
I had had first contact with Mr. Cotton, he
knew me and so, when he would call for job
placement or what-have-you, he would always
ask for me because I had made the- initial
contact with him and he felt comfortable with
me.
JUDGE LINSKY: Okay.
Q BY MR. CANFIELD: And, by Carpenters, you
mean Local 706?
A Right.
49a
Q And, when you use the term Carpenters, that’s
what we’re referring to, is that correct?
A Correct.
Q Okay. Did you have an occasion- did you have an
occasion to talk to Mr. Paquette later that night?
A Yeah. He had called me at home and said, oh, by
the way, when you were there, you could have signed
up Kevin Culbert and I said who’s he and he said,
well, you know we talked about- I talked to you about
him a week or so ago and I just neglected to think
about it when you were there, but can you come down
tomorrow and sign him up, and I yeah, that’s not a
problem.”
Q_ So who is Kevin Culbert?
A He is the apprentice that I signed up on the
following day, the 14th.
Q A new employee?
A A new employee, yes.”
Horner went on and testified about a conversation he had with
Ray Cotton. Horner testified as follows:
“Q Okay. Was there a conversation with Mr. Cotton
that night also?
* Tim Paquette was the foreman for Accoustical Arts and a member
of Local 1045.
50a
ree ch ee, eee alee a Rett or meen vr
A Yes. After we left the job site, I dropped Leon off
at the office and I went to look for Ray Cotton
because I couldn’t raise him on the phone. I think he
was a little bit embarrassed. I tried calling him on his
phone and, when he heard my voice, he hung up. And
so I thought, well, I’ll- I didn’t know where he lived,
but I knew the general vicinity, you know, the
apartment complex, and I thought, well, I'll find his
truck and then I’ll find him and that’s exactly what
happened and I asked him why he left and he told me
why he left and it was over a safety issue.
Q Did he say what it was?
MR. MASUD: I would- Objection. Hearsay.
JUDGE LINSKY: Okay. The same ruling. It’s
not for the truth of the matter stated. Just their-
MR. CANFIELD: Yes, Your Honor.
JUDGE LINSKY:-statement as to what
prompted possible further action on their part.
A Yeah. He said that he was scared to- or he felt
unsafe working on a scaffold that was kind of a make-
shift deal with no handrails and no way to really tie
yourself off above because the deck of the building
was a little bit too high to get anything tied up there
and he said he’d never encountered that before where
he worked down in Ohio and he- he just didn’t feel
safe working off of that, and I said, okay, and that
was it.”
Robert Horner’s testimony as to what occurred when he and
Turnwald returned to the jobsite on October 14, 1999 was as
follows:
“Q Now on October 14th did you go back to the
Accoustical job site at Birch Run?
¥es.
And who went with you?
Leon Turnwald again.
Approximately what time did you go?
Before lunch again.
Oo &©+ NH F-+ NH PY
Okay. And what is- what is the reason that you
were there?
A_ To sign-
Q Why did you go?
A To sign up Kevin Culbert.
Q And what do you remember is the reason Mr.
Turnwald was there?
A Tocheck out the safety- the safety concerns of one
of his members.
Q That would be Cotton?
A Yes.
52a
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3
7
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3
3
3
4
4
;
So did you enter the building?
Yes.
And who did you speak to initially?
Mr. Grandy again.
Oo + OH YF, A
Okay. And what did Mr. Grandy- Where did you
see Mr. Grandy? Where did you meet with him?
A In the hallway again. Just trying to find
Accoustical Arts, I think I popped my head in one
little room and stuck it out and Mr. Grandy was
coming towards me and didn’t have a look- didn’t
have a happy look on his face.
Q And what was said? What did Mr. Grandy say?
A What the fuck are you guys doing here again.
Q Okay. Do you remember anything else he said?
A. Yeah. He asked me to leave and I told him I had
to sign up a member.
Q Okay.
A Or not a member yet, but I had to sign up a guy.
Q Okay. Other than a verbal communication, was
there any kind of- anything else happen?
A Yeah. He grabbed me- he grabbed me by like the
arm or by the elbow area and said, you know, leave,
53a
and I said no, I’ve got to sign up a guy and I’ll- and
I'll, you know, just give me a little chance here and
Pll- Pll get it done and I'll get out of here.
Q Okay. Okay. Where did you go then? You were in
the hallway and then where did you go?
A_ I believe it was to the room that we were in the
day before.
Q Okay. And who went in?
A Mr. Grandy was following close on my heels.
Q Okay. And who else was with you?
A Nobody. Leon was in that room.
Q Okay. Did you and- did you and Mr. Turnwald
have anything to say to each other at that point?
A Yeah. I told him, Leon, I said, hey, this guy wants
us out of here, and he said, well, when we get the
guys signed up, we will- we will go as soon as I look
at the safety thing.
Q What did Grandy say to that?
A You know, you guys get out of here, and he just
kept hammering on get out of here, get out of here,
and he was going to call Pat Woigast and-
Q What, if anything, do you remember about Mr.
Grandy saying where you should take the person and
sign him up, though?
54a
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A Yeah. He said take him outside and sign him up
and I said it’s much too cold out there to- too cold and
too windy, we’re trying to fill out paperwork, they'll
be blowing all over and, you know, we gotta- why not
just do it right here and we’ll get out of your hair.
Q And you said - I think you testified Mr. Grandy
kept on saying get out of here, get out of here. Did he
say get out of here or get the fuck out of here?
A Well, there’s a lady present I
You’ve got to say what he said.
Yeah. He said get the fuck out of here.
And what was his tone of voice?
> OH FF A
It was very agitated. He was very angry.
Q And think I think you said that he - you testified he
said he would call Pat Wolgast, the owner.
A Pat or whoever. Pat or Lynn, yeah.
Q Okay. Was there any- do you remember any
conversation in regards to his suggestion that he was
going to call Wolgast?
A Yeah, he said he was going to call Pat Wolgast
and Leon reached in his pocket, grabbed a quarter,
and said here, gesturing to take the quarter and go call
him, and I said, Leon, he doesn’t need that, I’ve got
my cell phone, he can use my cell phone.
55a
Q Okay.
A And then he refused.
Q Now who is John Binder?
A John Binder is the owner of Accoustical Arts.
Q And was Mr. Binder- was Mr. Binder present that
day at any point?
A Yeah. He walked into the room at some point.
Q And what’d he do when he walked in the room?
A_ I went over and approached him. He laid down his
tools on the- next to where Kevin was filling out his
paperwork and-
Q Okay. Tell us why Kevin was filling out the
paperwork. What was that? Where was that?
A It was in kind of- I don’t know- if this were the
room, he’d be seven or foot off the wall, nine foot off
the wall, and there was a bundle of insulation with, I
believe, a piece of ply- or drywall on it that- and we
just kind of wiped off so that, when you were writing
on the piece of paper it wouldn’t get it all damaged.
Q Okay. So-
A And that’s where John laid his tools was on that
piece of drywall or whatever it was. Right next to
where he was filling it out.
56a
Q So did you and Mr. Binder have a conversation?
A Yeah. I asked John to step outside. I wanted to
talk with him about the safety concerns that Mr.
Cotton had had and I wanted to ask him how Ray did
while he was there and, obviously, he wasn’t there
long enough to do anything.
Q Okay. And, while you were talking, did anyone
else join you?
i A At some point, Leon came out and said Kevin’s
got a question on this thing here, you know, what do
I- what do you want me to have him put down, and I
said, well, I’ll be right in there and we turned and
started to head back into the building and-
Q What happened then?
i A Mr. Grandy was standing in the doorway and he
5 said you guys stay out here and fill it out and, I don’t
know, I- I think Leon said, well, he’s in there filling
the stuff out and, just like Leon said,’ he went this
way and Grandy kind of went that way and he just
} kind of shot through and then he turned and followed
| them and so the door was open and-
Q I want to understand. Mr. Grandy’s standing in the
doorway. How much of the doorway does he occupy?
> No party requested the sequestration of witnesses pursuant to FRE
Rule 615 and most of the witnesses for both sides were in the
hearing room during the trial.
57a
A_ Half, maybe.
Q Okay. And where’s he standing? In the center? On
the side? Where?
A Well, I don’t- I realiy don’t remember.
Q What do you remember about his body position?
How was that?
A He was physically trying to block the door from us
coming back in.
Q How was he doing that?
A Just standing in the door telling us we couldn’t re-
enter.
Q Now you said that Leon went one way and Mr.
Grandy went another. You mean like Mr. Grandy
went the same direction that Leon went?
A Yeah. He tried to block. You know, he thought
Leon was going to come in this way and then Leon
just did a fast shuffle and shot in.
Q Okay.
A And then Mr. Grandy turned and followed him
and then I didn’t have to do anything. I just walked
through the opening.
Q Okay. And what happened? What did you see
‘when you walked in? What happened then?
58a
naer eee ak aie teietinatns, eR EO ee
A Kevin was still filling out the paperwork. I leaned
over to explain something to him and Mr. Grandy
said, well, I’ve got to clean up this area now and he
just picked up the sheet of drywall or piece of
plywood or whatever it was and threw everything.
Q He threw the piece of drywall. How far?
A He flipped it over. It physically, you know, it
didn’t- it stood up and then landed back over again. So
it was a pretty good-
Q Well, what happened to the- Mr. Binder’s tools
that were on there?
A They- everything went flying.
Q Everything?
A Everything.
Q And about the paperwork that Mr. Curwald had
been filling out?
A JUDGE LINSKY: Mr. who?
Q BY MR. CANFIELD: (continuing) The new
member.
A Kevin?
Q Yeah.
A Kevin, I don’t remember if he’d got that off just in
time or if it fell in the floor and we had to pick it up.
59a
Q Where was-
A I’m not sure.
Q Where was Kevin when Mr. Grandy picked up the
top of the drywall and threw it at Culbert?
A_ Right within a foot or two of it.
Q What happened after- what happened after the
paperwork was completed?
A We- I exited the building from that.
Q How long were you on the job site in total?
A Maybe ten- maybe fifteen- at the outset- minutes.”
Respondent’s principal witness was Brian Grandy. I
observed Grandy on the stand briefly on March 31, 2000,
when we had to declare a recess for reasons unrelated to the
issues in this case, and again on June 13, 2000, when Grandy
testified at length about the events of October 14, 1999.
Again, I found Leon Turnwald and Robert Horner to be
very credible witnesses and insofar as Grandy’s testimony
varies from their testimony I credit Turnwald and Horner
over Grandy.
Grandy testified that visitors to the jobsite such as
Turnwald and Horner should first check in at the construction
trailer and if no one is in the trailer they should seek out the
person on site who is in charge and state their business.
Further, only supervised visits would be allowed.
bt ee
60a
Grandy never told Turnwald and Horner on October 13
about these procedures however.
Grandy also testified that Turnwald and Horner were at
the job site for 25 to 30 minutes on October 13 and for about
1 hour on October 14. I find that the time estimates of
Turnwald and Horner to be more accurate.
According to Grandy, Turnwald asked him if he was
happy working for Respondent. Turnwald credibly denied he
asked Grandy that question.
In addition, Grandy testified that Turnwald and Horner
did not have hardhats and were told they had to have them at
the jobsite. Turnwald and Horner credibly testified that they
had hardhats with them but that at no time did Grandy ever
tell them they had to put on their hardhats.
Grandy concedes that on October 14 he immediately told
Turnwald and Horner to sign up the new member outside or
come back during the new member’s lunch hour to sign him
up.
The testimony at trial was that it was windy outside. The
signing up of the new member would only take a few minutes
and Grandy clearly interfered with the signing up of the new
member.
Any disruption of work was caused by Grandy arguing
with Turnwald and Horner and not by the conduct of
Turnwald and Horner.
John Binder, the owner of Accoustical Arts, arrived at the
jobsite and was told by Horner that they would be taking just
5 more minutes to sign up the new man and would be leaving.
6la
Binder confirmed that new members are often signed up
at the jobsite but are also occasionally signed up at the Union
hall. In addition, Binder testified that since 1985 when he
want into business the Union has always been coming on jobs.
Grandy conceded that the employees of Accoustical Arts
would follow Accoustical Arts rules on when to take a break
or a luncheon recess and that foremen of Accoustical Arts not
foremen of Respondent would direct the work of Accoustical
Arts employees on the jobsite.
Respondent tried to raise as a defense to its actions that
the Union came to Respondent’s jobsite to engage in
“stripping”, i.e., the union representatives would urge
Respondent’s employees to immediately leave the employ of
Respondent and join the union and the union would
immediately put them to work leaving Respondent withou*
workers. However, while the Union may have engaged in
stripping in the past, there is not a shed of credible evidence
that they did so on October 13 or 14 or even intended to do
so on these dates. I specifically discredit the testimony of Tom
Murphy, an employee of Respondent, who claimed Turnwald
asked him on October 13 if he was happy working for
Respondent. I credit Turnwald’s testimony that he never said
that to Murphy.
Respondent was on the job from August 2, 1999 to
November 12, 1999. In the $ 800,000 bid contract there was
a bonus of $ 1,000 a day for each day the job was completed
early and a $ 1,500 penalty for every day the completion of
the job was late. Suffice it to say the less than 30 minutes the
Union was on the site on October 13 and 14 did not materially
impact the completion of work on this site. Indeed, if Grandy
had not been so unreasonable, obnoxious and confrontational
62a
the Union representatives would have been at the jobsite even
less than the 30 minutes they were there over 2 days.
C. Legal Analysis
The Board law that controls in this case is CDK
Contracting Co., 308 NLRB 1117 (1992), in which a
unanimous three member panel held that CDK Contracting
violated Section 8(a)(1) of the Act by denying access to the
jobsite to union officials seeking to communicate with
employees of a subcontractor, who were represented by the
union and where the subcontractor and union had an
agreement containing a union access or visitation clause.
As the Board held in affirming Administrative Law Judge
Timothy D. Nelson:
“In its exceptions, the Respondent primarily contends
that the principles set forth by the Supreme Court in
Lechmere, Inc. v. NLRB, 112 S. Ct. 841 (1992),
control this case. According to the Respondent,
Lechmere dictates that the complaint allegations must
be dismissed. For the reasons that follow, we
disagree.
In Lechmere, the Court denied private property access
to nonemployee union agents who sought access for
the purpose of communicating an organizational
message to employees. Here, substantially different
issues and considerations are before us. At issue here
is whether a general contractor may deny access to a
jobsite to union officials who seek to communicate
with employees of a subcontractor represented by the
union where a visitation clause in the contract between
the subcontractor and the union permits access. As the
63a
judge reasoned, the Respondent by soliciting other
employers to perform work at the jobsite, ‘invited’
subcontractors, and their respective subcontractors,
onto the jobsite, and thus subjected its ‘property rights
to the Union’s contractual ‘access’ rights with those
subcontractors. Thus, the Respondent here, unlike the
Respondent in Lechmere, voluntarily undertook to
have work performed by unionized subcontractors on
the property. In these circumstances, the Respondent
was not privileged to interfere with the contractual
obligations of the subcontractors and the contractual
rights of the unions that represented subcontractor
employees. We conclude that the Respondent must
permit those contractors to observe their contractual
obligations.” 308 NLRB at 1117.
Accordingly, I find that Respondent, by Brian Grandy,
violated Section 8(a)(1) of the Act by its behavior toward
union representatives Leon Turnwald and Robert Horner.
Respondent can impose reasonable rules, e.g., a
requirement that union representatives visiting a jobsite check
in at the trailer or notify the person in charge of the jobsite of
their presence at the jobsite provided, of course, that these
rules on access are applied in a nondiscriminatory manner to
all visitors.
The jobsite in this case was the interior of the building
where the employees of Accoustical Arts were working and
not the move complex outdoor parking lot. I find based on the
credited testimony of Turnwald and Horner that they did not
“hinder the progress of the work” or “interfere with the
progress of the work.”
Remedy
The project at the Cinema Hollywood jobsite ended before
the hearing in this case began and the remedy for
Respondent’s violation should be a cease and desist order and
the distribution by Respondent of an appropriate notice to the
employees of Accoustical Arts who worked at the Cinema
Hollywood jobsite.
Conclusions of Law
1. Wolgast Corporation is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Local 706 and Local 1045, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, are labor
organizations within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act when
it unlawfully refused and otherwise interfered with the
Union’s right to enter the Cinema Hollywood jobsite.
Upon the foregoing findings of fact and conclusions of law
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended
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ORDER‘
Respondent. Wolgast Corporation, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully refusing or otherwise interfering with
the Union’s right to enter the Cinema Hollywood jobsite or
any other jobsite for the purpose of communication with
employees represented by the Union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On the Union’s request, permit it to enter the
Cinema Hollywood jobsite or any other jobsite for the
purposes of communicating with the employees of Accoustical
Arts, Inc. which it currently represents provided, however,
that Respondent is not prevented from applying reasonable
and nondiscriminatory rules pertaining to nonemployee
access.
(b) Within 14 days after service by the Region mail to
the employees of Accoustical Arts who worked on the Cinema
* If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and
_recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board, and all objections to them shall be deemed
waived for all purposes.
66a
Hollywood jobsite at any time between August and November
1999 a copy of the notice marked “Appendix A.”° Copies of
the notice, on forms provided by the Regional Director for
Region 7 shall be mailed after being signed by the
Respondent’s authorized representative.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.°
Dated, Washington, D.C. October 25, 2000.
/s/
Martin J. Linsky
Administrative Law Judge
° If this Order is enforced by a Judgment of the United States Court
of Appeals, the words in the notice reading “POSTED BY ORDER
OF THE NATIONAL LABOR RELATIONS BOARD” shall read
“POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD.”
° Respondent moved the admission of Respondent Exh. 2. The
General Counsel had no objection. The record, however, does not
reflect the admission of Respondent Exh. 2. Respondent Exh. 2 is
hereby admitted and made a part of the official exhibits in this case.
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APPENDIX
NOTICE TO EMPLOYEES
Mailed by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered us
to mail this notice to the employees of Accoustical Arts, Inc..,
who worked in 1999 on the Cinema Hollywood jobsite in
Birch Run, Michigan.
Section 7 of the Act gives employees these rights.
_ To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT unlawfuliy refuse or otherwise interfere with
the Union’s right to enter the Cinema Hollywood jobsite or
any other jobsite for the purpose of communicating with
employees represented by the Union.
WE WILL NOT in any like or related manner interfere with.
restrain, or coerce employees in the exercise of the rights
guaranteed in Section 7 of the Act.
WE WILL, on the Union’s request, permit it to enter the
Cinema Hollywood jobsite or any other jobsite for the
68a
purposes of communicating with the employees of Accoustical
Arts, Inc., which it currently represents provided. however,
that we are not prevented from applying reasonable and
nondiscriminatory rules pertaining to nonemployee access.
WOLGAST CORPORATION
(Employer)
Dated By
(Representative) (Title)
Any questions concerning this notice or compliance with
its provisions may be directed to the Board’s Office, 477
Michigan Avenue, Room 300, Detroit, Michigan 48226-2569,
Telephone 313-226-3244.
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ee ee
APPENDIX G
BEFORE THE
NATIONAL LABOR RELATIONS BOARD
Case No. 7-CA-42474
[Filed April 11, 2000]
In the Matter of:
WOLGAST CORPORATION,
Respondent,
and
LOCAL 706, UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF
AMERICA, AFL-CIO,
Charging Party.
Nee Nee Nee eee eee NS”
The above entitled matter came on for hearing, pursuant
to notice, before MARTIN J. LINSKY, Administrative Law
Judge, at the State Office Building, 411 E. Genesee,
Basement Conference Room, on March 30, 2000, at 11:04
A.M.
70a
APPEARANCES
On Behalf of the General Counsel:
JOSEPH CANFIELD, ESQ.
NATIONAL LABOR RELATIONS BOARD - REGION
7 Patrick V. McNamara Federal Building
477 Michigan Avenue
Room 300
Detroit, Michigan
On Behalf of the Respondent:
DAVID JOHN MASUD, ESQ.
MASUD GILBERT & PATTERSON, P.C.
4449 Fashion Square Boulevard
Saginaw, Michigan 48603-1242
On Behalf of the Charging Party:
LEON TURNWALD, ORGANIZER
MICHIGAN REGIONAL COUNCIL OF
CARPENTERS,
U.B.C.J.A. - A.F.L. - C.L.O.
1400 W. Genesee Avenue
Saginaw, Michigan 48602
Tla
INDEX
WITNESSES DIRECT CROSS REDIRECT
Leon Turnwald 8 42 75
Robert Horner 79 120 139
Marshall Hoffman 143 155 157
Tim Paquette 159 180 | 203
196
-John E. Binder 207 «225
WITNESSES RECROSS VOIR DIRE
Leon Turnwald 31
Robert Horner 141 89
104
Marshall Hoffman
Tim Paquette 205 196
John E. Binder 228
72a
[p.309]
call him twice. I just want to call him --
MR. MASUD: Oh. Yeah, that’s fine. I have no
objection, Judge.
JUDGE LINSKY: Okay.
MR. CANFIELD: Okay.
JUDGE LINSKY: You rest?
MR. CANFIELD: We rest, Your Honor.
JUDGE LINSKY:Okay. Mr. Masud.
MR. MASUD: _ Judge, I call Brian Grandy.
JUDGE LINSKY :If you’d raise your right hand, sir.
Whereupon,
‘BRIAN WILLIAM GRANDY
having been first duly sworn, was called as a witness herein
and was examined and testified as follows:
JUDGE LINSKY: Please be seated.
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DIRECT EXAMINATION
Q BY MR. MASUD: _ State your name and spell your last
name for the record, please.
A Brian William Grandy. G-r-a-n-d-y.
Q And, Mr. Grandy, tell us where you work, your title, and
your job duties as they existed on October 14th, 1999.
A_ I’ve worked for Wolgast Corporation for eight years now.
General foreman.
Q And, briefly, what’s a general foreman do for Wolgast?
A I’ve done -- I do everything and anything from building
[p.310] layout to final clean up.
Q Okay. So you run the job, correct, for Wolgast?
A Yes.
Q All right. And Wolgast is -- Tell us a little bit about
Wolgast. They’re a general contractor, correct?
A Yes.
Q Allright. And what kind of construction do they do?
A We do some construction management, some residential,
some restaurant, lots of industrial.
Q And how many employees?
A A hundred.
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|
|
|
:
A PPS AR Ee RELY OREN I AD
Q Okay. And they’re a non-union contractor, correct?
A Yes.
Q Okay. And you were the -- is it general foreman, is that
correct?
A Yes.
Q All right. And you were the general foreman at the
Hollywood Cinema job, right?
A Yes.
Q When did that job start?
A August --
Q Tell us when it started and when it ended.
A August 2nd-- it started August 2nd. Completion date was
November the 12th.
Q Okay. And how big a job was that in terms of dollar
{p.311] volume?
A Oh, I believe it was about $800,000.00.
Q Okay. And for a Wolgast, a typical Wolgast, job, is that
a big one, small one, medium?
A Medium.
Q Medium. Okay. And how many Wolgast employees on
that job?
75a
A We started out with three and at one -- at the most,
probably, 12 when we were doing the concrete work and
carpenter work.
Q And how did Wolgast get that job?
A_ I believe it was negotiated. I think it was a negotiated bid.
Q And so it was a bid job?
A A bid job, yes.
Q Okay. And tell us the nature of the construction. Was it
new construction? Was it an addition?
A It was an addition to an existing theater. We were adding
four theaters.
Q Okay. And who was responsible for job safety and
security on this job?
A_ Iwas. I was for Wolgast.
Q Okay. And who had control over the property site,
including access of visitors?
A Wolgast.
Q Were subs -- other than Acoustical, were there other
* * *
[p.338]
MR. MASUD: _ Brian Grandy.
76a
JUDGE LINSKY:Would you raise your right hand, sir?
Whereupon,
BRIAN GRANDY
having been duly sworn was called as a witness and was
examined and testified as follows:
JUDGE LINSKY: Please be seated.
MR. MASUD: Your Honor, I am just going to pick up
where I left off. I am not going to repeat anything that is--
JUDGE LINSKY:Okay.
MR. MASUD: All right.
JUDGE LINSKY: This gentleman is the same witness who
testified on the morning of March 31", 2000. And we are no
resuming with your testimony, sir.
THE WITNESS: Correct.
JUDGE LINSKY:Mr. Masud?
DIRECT EXAMINATION (continued)
Q BYMR.MASUD: Mr. Murphy, when we left off with
the line of questioning from myself to you ---
JUDGE LINSKY:Mr. Grandy?
MR. MASUD: _ Yes, Mr. Grandy. I’m sorry.
T7a
JUDGE LINSKY: All right.
Q BY MR. MASUD: You were explaining to us, the
different contractors, subcontractors, that were on-the-job,
and who was Union and who was non Union, and so forth.
[p.339]
With regard to the Union contractors the Hollywood
Cinema job, were you aware that any of them had collective
bargaining agreements?
A No. I was not aware of that.
Q Had you seen any of the collective bargaining agreements
for the --- any of the subcontractors on that job?
A No.
Q Would you explain for us, please, what Wolgast’s policy
is concerning visitors to the job site?
A Our policy is that they should report to the job trailer, find
the superintendent, or the guy in charge of the job.
Q Okay. And what if no one is at job trailer?
A They should ask the first person they see, who is in
charge, and find that person.
Q Allright. And what if someone is found in charge of the
job, and the visitor wants to access the job site? What
happens next?
A It would be a supervised visit only, if it was permitted.
78a
——$—$—$——$————— EE
Q And in the case of a Union business agent, how are their
visits treated by Wolgast?
A Normally, we would ask what their business is, and set up
something in the trailer for them, where they could talk with
who they needed to talk with, or in the building, a room in
the building, or whatever --- wherever worked best for
everybody.
Q And other than the Carpenters’ business agents, were
* * *
79a
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