RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Wolgast Corp. v. NLRB Nos. 01-1904/2056 ELECTRONIC CITATION: 2003 FED App. 0389P (6th Cir.) File Name: 03a0389p.06 Before: MERRITT and DAUGHTREY, Circuit Judges; RUSSELL, District Judge.** UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT COUNSEL _________________ ARGUED: David J. Masud, MASUD, GILBERT & WOLGAST CORPORATION , X PATTERSON, Saginaw, Michigan, for Petitioner. Ruth Burdick, NATIONAL LABOR RELATIONS BOARD, Petitioner/ - APPELLATE COURT BRANCH, Washington, D.C., for Cross-Respondent, - Respondent. ON BRIEF: David J. Masud, Kraig M. - Nos. 01-1904/2056 - Schutter, MASUD, GILBERT & PATTERSON, Saginaw, v. > Michigan, for Petitioner. Ruth Burdick, Aileen A. , Armstrong, David Habenstreit, NATIONAL LABOR - RELATIONS BOARD, Washington, D.C., for Respondent. NATIONAL LABOR RELATIONS - Maurice Baskin, VENABLE, BAETJER, HOWARD & BOARD , - CIVILETTI, Washington, D.C., for Amicus Curiae. Respondent/ - Cross-Petitioner. - _________________ - N OPINION On Petition for Review and Cross-Application _________________ for Enforcement of an Order of the National Labor Relations Board. MERRITT, Circuit Judge. The central issue in this case is No. 7-CA-42474 whether nonemployee union representatives of the organized employees of a construction subcontractor, whose collective Argued: December 12, 2002 bargaining agreement contains a union access clause, can be categorically barred from a construction jobsite by the Decided and Filed: September 16, 2003* contractor with the asserted property interest. Wolgast Corporation petitions this Court for review of the order of the National Labor Relations Board finding that Wolgast committed an unfair labor practice by barring union representatives from accessing a construction jobsite, and the Board has cross-petitioned for enforcement of its order. We

* This decision was originally issued as an “unpublished decision” ** filed on September 16, 2003. On October 28, 2003, the court designated The Honorable Thomas B. Russell, United States District Judge for the opinion as one recommended for full-text publication. the Western District of Kentucky, sitting by designation.

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conclude that Wolgast’s petition is without merit and Horner went to the site to check on the scaffolding and sign therefore issue an order of enforcement. up the employee. Once again, Grandy ordered them to leave the property, this time “ranting and raving” and asking “what I. Background the fuck are you guys doing here again?” Grandy grabbed Turnwald’s arm and pulled him down a hallway until Horner Wolgast, a non-union general contractor that hires both stepped between them. Grandy continued down the hallway, union and non-union subcontractors to do construction work, and Turnwald proceeded to sign up the new employee at a was hired by Cinema Hollywood, LLC to construct an makeshift table made of a sheet of plywood resting on bats of addition to a movie complex. Wolgast subcontracted with insulation. During this process, Binder came in and placed Acoustical Arts, Inc., a union contractor, for the required his set of tools on the makeshift table. At some point, Horner acoustical installation. Acoustical’s carpenter employees and Binder stepped outside for a moment. When Turnwald were represented by Local 706, United Brotherhood of had a question about the paperwork, he also stepped outside Carpenters and Joiners of America, AFL-CIO. Article V, to ask Horner how to fill it out. As they both began to reenter section c of the Carpenters Local 706 collective bargaining the building, Grandy stood in the doorway blocking their agreement states, in relevant part: access, stating “You guys get the fuck out of here, you’re not coming back in.” Turnwald brushed past Grandy and went [B]usiness representatives shall have access to all jobs at back in to finish the paperwork. Grandy then said to the new all times where possible. A representative of the employee, who was on his knees by the makeshift table filling Michigan Regional Council of Carpenters shall have the out the paperwork, “That’s all the fucking union does is take right to visit the job during working hours to interview your money,” to which the employee replied, “No, the the employer, steward, or men at work, but shall not union’s the only way I can get ahead.” Announcing that he hinder the progress of the work. was going to “clean up this area right here,” Grandy reached down, grabbed the makeshift table and forcefully flipped it (J.A. at 85.) On October 13, 1999, Leon Turnwald, the over so everything on it, including Binder’s tools, flew off business representative and organizer for Local 706 went with and onto Turnwald. At this, Turnwald and Horner left the Robert Horner, the business representative from Local 1045, site, apparently abandoning their plan to check the safety of the union representing the lathers employed by Acoustical, to the scaffolding. the Cinema Hollywood job site “to check on” a new Acoustical employee. According to Turnwald, Brian Grandy, The administrative law judge ruled that Wolgast violated a supervisory employee of Wolgast and the project’s section 8(a)(1) of the Act by interfering with Turnwald’s superintendent, ordered Turnwald off the property. Before access to the jobsite. Relying on CDK Contracting, 308 leaving the property, Turnwald discovered that the new N.L.R.B. 1117 (1992), the judge ruled that the general employee had already left the site before the end of his shift. construction contractor with the asserted property interest is That evening, Turnwald spoke to the employee by telephone, obligated as a matter of labor law to yield its interest so that who said he could not work at the site because the scaffolding the subcontractor’s employees’ section 7 right to be was dangerous. Turnwald then spoke to John Binder, the represented by their chosen union and to receive the agreed- owner of Acoustical, who said the scaffolding was safe. upon benefits of that representation may be fully Turnwald also learned that they had forgotten to sign up a implemented. The judge ordered Wolgast to allow Local 706 new lather while at the site. The next day, Turnwald and access to Acoustical employees when requested, subject to Nos. 01-1904/2056 Wolgast Corp. v. NLRB 5 6 Wolgast Corp. v. NLRB Nos. 01-1904/2056

any “reasonable and nondiscriminatory rules pertaining to the two.” Hudgens v. NLRB, 424 U.S. 507, 521 (1976) nonemployee access” Wolgast may put in place. On appeal (internal quotations omitted). As always, accommodation to the Board, Wolgast argued that CDK Contracting was between employees’ § 7 rights and employers’s property wrongly decided and that this case is instead controlled by rights “must be obtained with as little destruction of the one Lechmere v. N.L.R.B., 501 U.S. 527 (1992). There, the as is consistent with the maintenance of the other.” NLRB v. Supreme Court held that an employer may categorically Babcock & Wilcox, 351 U.S. 105 (1956). We turn first to the exclude nonemployee union organizers from its property Board’s determination that Lechmere does not determine the subject to two narrow exceptions not applicable here. Finding outcome of this case as a matter of law. that this case, like CDK Contracting, presents “substantially different issues and considerations” from those presented in In Lechmere, union organizers distributed handbills on the Lechmere, the Board rejected Wolgast’s argument and windshields of cars parked in a shopping plaza parking lot as affirmed. part of an effort to organize the employees of Lechmere, Inc.’s retail store located at the shopping plaza. Lechmere II. Analysis personnel removed the handbills and asked the union organizers to leave. The administrative law judge ruled that Section 8(a)(1) of the National Labor Relations Act Lechmere had violated section 8 by barring the nonemployee provides that “it shall be an unfair labor practice for an union organizers from its property. The Board affirmed, employer [] to interfere with, restrain, or coerce employees in relying on a multifactor balancing test developed in Jean the exercise of the rights guaranteed in section [7 of this Country, 291 NLRB 11, 14 (1988). The Supreme Court Act].” 29 U.S.C. § 158(a)(1). Section 7 provides in pertinent denied enforcement of the Board’s order, holding that, at least part that “employees shall have the right to self-organization, as applied to nonemployee union organizers, Jean Country to form, join, or assist labor organizations, to bargain impermissibly eliminated the threshold stage of the inquiry by collectively through representatives of their own choosing, failing to make a distinction between employees and and to engage in other concerted activities for the purpose of nonemployees of the targeted employer. See Lechmere, 502 collective bargaining or other mutual aid or protection.” 29 U.S. at 538 (citing Babcock & Wilcox, 351 U.S. at 112). The U.S.C. § 157. An employer therefore violates section 8 and Court reiterated the “distinction of substance” established in commits an unfair labor practice where it restrains or Babcock & Wilcox between the organizing activities of interferes with employees’ section 7 rights. Lechmere, 502 employees and nonemployees: “As a rule, then, an employer U.S. at 531-32. cannot be compelled to allow distribution of union literature by nonemployee organizers on his property.” Id. at 533. As We review de novo the Board’s interpretation of Supreme explained by the Court: Court and Sixth Circuit decisions, and uphold the Board’s “reasonably defensible” construction of the Act in the absence To say that our cases require accommodation between of binding precedent. See Meijer v. NLRB, 130 F.3d 1209, employees’ and employers’ rights is a true but 1212 (6th Cir. 1997). In determining whether the Board’s incomplete statement, for the cases also go far in construction of the Act is “reasonably defensible,” we keep in establishing the locus of that accommodation where mind that the “task of the Board, subject to review by the nonemployee organizing is at issue. So long as courts, is to resolve conflicts between § 7 rights and private nonemployee union organizers have reasonable access to property rights and to seek a proper accommodation between employees outside an employer’s property, the requisite Nos. 01-1904/2056 Wolgast Corp. v. NLRB 7 8 Wolgast Corp. v. NLRB Nos. 01-1904/2056

accommodation has taken place. It is only where such which locus the working conditions of the access is infeasible that it becomes necessary and proper subcontractors’ employees are necessarily established. to take the accommodation to the next level, balancing It may therefore be reasonably inferred that Respondents, the employees’ and employers’ rights . . . . by hiring such subcontractors, thereby “necessarily submitted their own property rights to whatever activity, Id. at 538 (emphasis in original). lawful and protected by the Act,” might be engaged in by union business agents in the performance of their duties Lechmere thus reaffirms that, in the generic situation vis-a-vis these subcontractors who have contractually presenting a conflict between the competing interests of granted union business agents unrestricted access to the employees and employers, the primary responsibility to make site. the proper accommodation lies with the Board, whose determination is subject to review only for reasonableness. In Villa Avila, 253 NLRB 76, 81 (1980) (quoting Hudgens v. the specific case of nonemployee union organizers who NLRB, 230 NLRB 414, 418 (1977) (on remand)). The Board attempt to enter an employer’s property for purposes of acknowledged that the union representatives were not organizing, however, the Board does not even reach the employees of the contractor or subcontractor, but reasoned balancing stage of the inquiry: An employer may “post his that under the factually distinct circumstances involving the property against nonemployee distribution of union literature subcontractor’s employees’ own § 7 right to union access if [1] reasonable efforts by the union through other available under a collective bargaining agreement and the union’s channels of communication will enable it to reach the manifest representative capacity regarding that same right, employees with its message and [2] if the employer’s notice balancing was appropriate and the represented employees’ or order does not discriminate against the union by allowing right outweighed the contractor’s right to control the property. other distribution.” Babcock & Wilcox, 351 U.S. at 112. See id. at 80-81. According to the Board, the common and accepted procedures in place at construction sites requiring The Board’s pre-Lechmere decisions requiring the that the union representatives give notice of their presence to contractor to allow union access to its unionized the general contractor “effectively accommodate the interests subcontractor’s jobsite are founded on its view that the and obligations of all parties.” Id. at 81. represented employees’ § 7 rights “include the right to receive the various services of union business agents which services Just a few months after Lechmere was decided, the Board are necessary to police existing collective-bargaining relied on C.E. Wylie Construction Co. and Villa Avila to agreements or to negotiate new agreements.” See, e.g., Villa reaffirm that a construction contractor must permit its Avila, 253 NLRB 76, 80 (1980), enf’d. as modified, 673 F.2d unionized subcontractor to allow union access pursuant to the 281 (9th Cir. 1982); see also C.E. Wylie Constr. Co., 295 collective bargaining agreement between the subcontractor NLRB 1050, 1050 (1989). The administrative judge in Villa and the union. See CDK Contracting, 308 NLRB at 1117. Avila further explained that, by hiring unionized The Board again distinguished the Supreme Court’s general subcontractors to perform work on the jobsite, the general rule regarding nonemployee organizers as reaffirmed in contractors Lechmere, stating that CDK Contracting presented “substantially different issues and considerations.” Id. Under have thereby invited these subcontractors to, in effect, these particular circumstances, “access is necessary in order maintain a temporary place of business on the site, at to investigate and to resolve contract compliance when the Nos. 01-1904/2056 Wolgast Corp. v. NLRB 9 10 Wolgast Corp. v. NLRB Nos. 01-1904/2056

contract grants the union such access.” Id. (citing Villa Avila, a non-union contractor); Cleveland Real Estate Partners v. 253 NLRB at 81). Unlike the situation in Lechmere, the NLRB, 95 F.3d 457 (6th Cir. 1996), overruled on other contractor, “by soliciting other employers to perform work a grounds in NLRB v. Webcor Packaging, Inc., 118 F.3d 1115, the jobsite, ‘invited’ subcontractors, and their respective 1119 (6th Cir. 1997) (applying Lechmere to handbilling by subcontractors, onto the jobsite, and thus voluntarily nonemployee union representatives urging a boycott of a subjected its ‘property rights’ to the Union’s contractual nonunion store at a strip mall).1 ‘access’ rights with those contractors.” Id. As a result, “[t]he Respondent [contractor] was not privileged to interfere with In our view, Lechmere and the cases cited from our court the contractual obligations of the subcontractors and the are readily distinguishable from this case. Most significantly, contractual rights of the unions that represented subcontractor the union agent at issue here did not seek access for purposes employees.” Id. Finally, without access pursuant to the of organizing employees, handbilling patrons, boycotting, or access provision, the “Union did not have a reasonable, other similar activity in exercise of the union’s “derivative” effective alternative means to enforce its contractual rights.” § 7 rights. Rather, Turnwald sought access as the direct Id. representative of the subcontractor’s employees under the authority of the collective bargaining agreement. In our view, Respondent Wolgast asserts here that the Board’s rule in at issue here is the employees’ own undisputed § 7 right to CDK Contracting stands as a “radical departure” from negotiate and benefit from a collective bargaining agreement Lechmere. In support, Wolgast points to the Court’s which allows union access for purposes of investigating the statement in Lechmere that, “by its plain terms, . . . the NLRA premises and interviewing employees on-site. Neither confers rights only on employees, not on unions or their Lechmere nor any of our cases address union access for nonemployee organizers.” 502 U.S. at 532 (emphasis in representational purposes. original). According to Wolgast, this statement provides a “trump card” by predetermining that every nonemployee In any event, we have stated elsewhere that Lechmere’s union representative can be barred from its property, statement that the Act “confers rights only on employees” is regardless of his purpose or relationship with employees not so expansive as Wolgast suggests. In BE&K located on the jobsite, in the same manner as the Construction Co. v. NLRB, 246 F.3d 619, 626-27 (2001), nonemployee union organizer in Lechmere. Wolgast further rev’d on other grounds, 536 U.S. 516 (2002), we were faced points out that this court has construed Lechmere to extend with the question whether a union whose members work for beyond the purely organizational situation to apply to situations involving other nonemployee union activities. See, 1 e.g., Albertson’s Inc. v. NLRB, 301 D.3d 441, 454 (6th Cir. W olgast also relies on NLRB v. Windemuller Electric, Inc., 34 F.3d 2002) (holding that, under Lechmere, an employer may bar 384 (6th Cir. 1994), in which a panel of this court relied on Lechmere to nonemployee union representatives from distributing hold that an employer can lawfully prevent its unionized employees from placing union stickers on their employer-owned hardhats. A later panel handbills on the employer’s property informing the of this court rejected Windem uller’s reasoning, howe ver, inso far as it employer’s patrons of the union’s economic strike with one treated the employees’ right to wear union insignia as a matter of property of the employer’s suppliers); Sandusky Mall v. NLRB, 242 rights under Lechmere rather than of employees’ organizational rights F.3d 682, 686 (6th Cir. 2001) (applying Lechmere in a case under Rep ublic Aviation. See Meijer Inc. v. NLRB, 130 F.3d 1209, 1217 involving “area standards” handbilling by nonemployee union (6th Cir. 1997) (holding that under the balancing test in Rep ublic Aviation, 324 U.S. 793 (1945), “emp loyees have a right to we ar unio n representatives urging shoppers not to patronize a store hiring insignia” on employer-owned uniforms). Nos. 01-1904/2056 Wolgast Corp. v. NLRB 11 12 Wolgast Corp. v. NLRB Nos. 01-1904/2056

construction subcontractors possess a § 7 right that could The administrative law judge found no credible evidence that potentially be violated by the nonunion contractor-employer there were such rules or that they were conveyed to the union when the employer filed baseless lawsuits in retaliation for agent. This finding was undisturbed by the Board, and we the union’s activities. In concluding that unions possess such cannot say it is clearly erroneous. We need not address a § 7 right, we distinguished Lechmere as specifically Wolgast’s other arguments, as they are wholly without merit. involving nonemployee union organizers attempting to distribute organizational literature on an employer’s property. III. Conclusion Id. at 627. We further noted that, by allowing exceptions to its rule, “the Court . . . recognized that § 7 of the Act, by In CDK Contracting, the Board correctly concluded that necessary implication, extended some legislative protection Lechmere did not control the outcome of the case. In to unions.” Id. at 626. exercising its authority to strike the proper balance between the property interests of a construction contractor and the As a general matter, it is a reality inherent in construction interests of the employees of its unionized subcontractors to work that a construction subcontractor’s employees work on benefit from their collective bargaining agreement, the Board the property of another. The Board has set forth reasons that has created a rule that is both “reasonably defensible” and in adequately take into account the specific circumstances accord with the guiding principle of labor law. Accordingly, presented here, carefully considering the asserted property we DENY Wolgast’s petition for review and GRANT the rights of the contractor and the accommodations required Board’s request for enforcement of its order. when the contractor voluntarily hires unionized subcontractors. Contrary to Wolgast’s suggestion, the Board did not hold that a general contractor is “bound” to a contract term to which it is not a party. Rather, it held that the contractor may not interfere with the protected activity relating to a union subcontractor and its employees in the name of private property interests. See Hudgens, 424 U.S. at 510 nn.3 &11 (recognizing that “a statutory ‘employer’ may violate § 8(a)(1) with respect to employees other than his own”). We agree with the Board’s reasoning in Villa Avila that, to the extent that general contractor interferes with the duties of the union as representative of the subcontractor’s employees, “so are the employees’ Section 7 rights diminished.” 253 NLRB at 81. Under the circumstances presented here, the Board’s balancing of the conflicting interests in CDK Contracting is a reasonably defensible interpretation of the Act. Finally, regarding Wolgast’s assertion that Turnwald waived his access right because he did not follow Wolgast’s rules for visiting the jobsite, we affirm the Board’s ruling.