# Petition for Writ of Certiorari — Wolgast Corp. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0829%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 541 U.S. 936 ## Text s+ tie 6h6Ue Fleiss 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 CO —— wl at Le Fateh ED SA Re RGA De Seal Se SAR VAS as DT BNE Rn a aA an iP Se it MotB ans AS at tn a Sil malt 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 ci RR i SW ALO, a) EE a a Ul 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 4d 3 7 i § ] 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 sud NORA AIR Des RA ce ar bra ale Se 5 ne oe ane alee sociniae ths tae Sto Ms eisai aad aes saver 54 Lav we REn Cs 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 organizatio [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0829%3A1. Public record. Not legal advice.