* Th is decisi on was ori ginal ly i ssued as an “unpublished decision”

fil ed on Sept ember 16, 200 3. On October 28, 2003, th e court des ignat ed the opinion as one recommended for ful l-t ext publicati on.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0389P (6th C ir.) File Name: 03a03 89p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
W OLGA ST C ORPORATI ON ,

Petitione r/ Cross-Re spondent,

v.

N ATION AL L ABOR R ELATI ONS B OARD , Responde nt/ Cross-Pe titioner. X

- - - -
> , - - - - - - N Nos. 01-1904/2056

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. No. 7-CA-42474 Argued: December 12, 2002 Decided and Filed: September 16, 2003 * 2 Wolgast Corp. v. NLRB Nos. 01-1904/2056

** The Honorable Thomas B. Russell , Unit ed States District Judge for the Western District of Kentucky, sitt ing by designati on. Befor e: MERRI TT and DA

UGHTREY , Circuit Jud

ges; RUSSELL, District Judge. **

_________________ COUNSEL

ARGUED: David J. Masud, M A SUD, GIL BERT & PATTERSON, Sagina

w, Michig an, for Pe

titi one r. Ruth Burdick, NATI ONAL

LAB OR REL

ATIO NS BO ARD, APPELLATE

COURT BRANCH, Washington, D.C., for Responde nt. ON BRI EF: Davi d J. Masud, Kr aig M. Schutter, MASUD, GIL

BERT & PATTERSON, S a ginaw, Michi gan, for Petitioner. Ruth Burdick, Aileen A

. Arm str ong, David Habenstreit, NATI ONAL L ABOR RELATI ONS BOARD, Wa shington , D.C., for Respond ent. Maurice Bas kin , VENABLE, B AETJER, HOWARD & CIVI LETTI , Washington, D.C., for Amicus Curiae.

_________________ OPINION

_________________ MERRITT, Circuit Judge. The cen tral issue in this case is whether nonemployee union re

presentatives of the organized employees

of a construction subcontractor, whose collective bargaining

agreement

contains a union ac cess clause, can be categ orically

barred f

rom a construction jobsite by the contractor

with the a sserted

propert y in terest. W olgast Corporationpetitions t

his Court for

review of the order of the National Labor Relations Boar d findin g that Wolg ast committed

an unfair labor practice b y ba rring union representatives from a ccessi ng a construction jobsite, and the Board has cross-petitioned for enforc ement of its orde r. WeNos. 01-1904/2056 Wolgast Corp. v. NLRB 3

co nclude that Wolg ast’s petition is wit hout merit

an d theref ore issue an order of enfor cement. I. Backgro und

Wol gast, a non-un

ion general contractor that hir es bot h union and non-union subcontractors to do construction work,
was hire d by Cinema Holly wood, LL C to construct an addition to a movie complex. Wolgast subcon t racted with Acoustical Arts, I

nc., a un ion contr acto r, for the required
ac ous tical installation. Acoustical’s carpenter employ ees were represented by

Local 706, United Brother hood of Carp enters and Joiners of America, AFL -CIO. Article V, sectionc of the Carpenters L ocal 706 collective bargaining agree ment state s, in rele

vant par t: [B]usiness

representatives shallhave access to all jobs at all times whe

re possib le. A rep

resenta tiv e of th e Michigan Regional Council of Carpenters shall have the ri g htto visit the job during working hours to interview the employer, stewa

rd , or men at work, but shall not hinder the progress of the work. (J.A. at 85.) On October 13, 1999, Le on T urnw ald, the b usiness repres entative

and org anizer for Loc al 706 we nt with Robert Horner, the business representative from Local 1045, the union representin

g the la thers emp loy ed by

Acoustic al, to the Cinema Hollywood job site “ to ch eck on” a new Acoustical employee. According to Turnwald, Brian Gr an dy,
a supervisory employ

ee o f Wolgast and the project’s superint endent, ordered Turnw ald off the property . Before leavingthe property, Tur nwald discovere d t hat the new employee had alre ady

left the s ite before the e

nd of his sh

ift. That evening, Turnwald spoketo the employee by telephone, who said he c ould not work at the site bec ause the scaffolding
was dangerous. Turnwald then spoke to John Binder, the
owner of Acoustical, who s aid t he scaffolding was safe. Turnwal d also learned that they

had forg ot ten to sign up a
new lather while at the site. The next day , Turnwald an d 4 Wolgast Corp. v. NLRB Nos. 01-1904/2056

Horner went to th e site to check o n the s caffol ding an d sign up the employee. Once again, Grandy ordered them to leave the propert

y, t his time“ranting and raving” a nd asking “what the fuck are you guy

s doing here again?” Grandy grabbed Turnwald’s arm and pulled him down a hallway until Horner stepped between them. Grandy

continued down

th e h al lw ay, and Turn wald p roceed

ed to sig n up the ne

w employ

ee at a makeshift table mad

e of a she et of ply

wood res ting on ba

ts of insulation. Du ring 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 mo ment. When Turnwal d had a question about

the pape rwork, h e also stepped outside to ask Horner how

to fill it out. As they both began to re enter the bu i lding, G

randy stood in the

doorway blocking their
access , stating “You guys get the fuck out of here, y ou’re not coming back in.” Turnwald brushed pa st Gra ndy and went back into finish the paperwork. Grandy then sa id to the new employee, who was o n his knees by the makeshift table filling outthe paperwork, “That’s all the fucking union does is take your money ,” to whic

h the empl oye e repli ed, “N o, the union’s the only way

I can ge t ahead.” Annou ncing that he
was going to “clean up this area right here,” Grandy r eached down, grabbed

t he makeshift table

and forc efully

flipped it
over so everything

on it, including Binder’s tools, flew off and onto Turnwald. At this, Turnwald and Ho rner l eft the site, apparently a

bandoning thei r plan to check the safety of the scaffolding.

The administrative law judge ruled that Wolgast violat e d section8(a)(1) of the Ac t by interfer ing with Turnwald’s
a ccess t o the jobsite. Relying on CDK Contracting , 308 N.L.R.B. 1117 (1992), th e judge ruled that the gener al constructioncontractor with th e asser ted prope rty in terest is obligated as a matter of labor law to y ield its interest so that the subcontr

actor’ s employ

ees’ se cti on 7 right to be represented by

their chosen union

and to receive the agreeduponbenefit s of that r eprese ntation ma

y be fully implemented. The judg e order ed Wolga st

to allow Local

706
access to Acousti cal e mp loy ees whe n requested, subje ct toNos. 01-1904/2056 Wolgast Corp. v. NLRB 5

any “reasonable and nondi scrimina tory rules pe rtaining to nonemployee

access ” Wolgas t ma

y pu t in place. On appeal to the Boa

rd, Wolga st argu

ed that CDK Con tracti ng was wrongl y decided and that this case is instead c ontrolled by L echmer e v. N.L.R.B. , 501 U.S. 527 (1992). There, the Supreme Court held that anemp loy er may categ orically exclude nonemployee union org anizers from its propert

y subject to two narrow exceptions not applicable here. Finding that this case, like CDK Contracting , presen ts “substa ntially different issues an d consi derati ons” from those pr esented in Lechmer e , the Boa rd rej ected W olga st’s argument and affirmed. II. Analysis

Section8(a)(1) of the National L abor Relations Act provides that “it shall be an unfair labor practice for an employer [] to interfere with, restrain, or coerce employ ees in the exercise

of the rig

hts guar anteed i n section [7 of this Act].” 29 U.S.C. § 158(a)(1). Section 7 provides in pertinent part that “emp loy ees shal l have the right to self-organization, to form, join , or a ssist labor organ izations, to

barga in collecti vely through representatives of their own choos in g, and to engage in other conce

rted activities for the purpose of collective bargaining

or othe r mutual aid or protection.” 29 U.S. C. § 157. An employer ther efore violates section 8 and commits an unfai

r labor practice

where it res trains or interferes with employe es’ se ctio n 7 rights. Lechmer e , 502 U.S. at 531-32.

We review de novo the Board’s interpretation of Supreme Courtand Sixth Circuit decisions, and up h old the Board’s “reasonably

def ensib le” construction of the Act in the absence of binding precedent. See Meijer v. NLRB , 130 F.3d 1209 , 12 1 2 (6th Cir. 1997). In determining whe ther the Board’s constructionof

the Act is “reasonably

defensi ble,” we keep in mindth at the “ task of the Board, subject to review by the courts, is to resolve co nfli cts betwe en § 7 rig hts and pr

ivate propert y rights and

to seek a proper accommodation between 6 Wolgast Corp. v. NLRB Nos. 01-1904/2056

the two.” Hudgens v. NLRB , 424 U.S. 507, 521 (1976 ) ( in ternal quotations omitted). As always, ac commodation between employees’ § 7 rig hts and em ploy ers’s pr operty rights“must be obtained with as little destruction of the one
as is consistent with the maintenance of the other.” NLRB v. Babcock & W ilcox , 351 U.S. 105 (1 956). We tu rn first to the Board’s determination tha t Lechmer

e does not determine the outcome of this case as a matter of law.

In Lechmer

e , union organizers distributed handbills on the windshields of cars parked in a shopping plaza parking lot as part of an effort

to org anize the employees of Lechmere, Inc.’s retail stor e located at the shopping plaza. Le chmere perso nnel removed the handbills and asked the union organizers to leave. The administrative l aw judge ruled that Lechmere had violated section 8 by

barring the nonemploy

ee union organ

izers f rom it s property. The

Board affirmed, relying ona multifactor balancing test developed in Jean C ountry , 291 NLRB 11, 14 (1988). The Supreme Court denied enforcement of the Board’s or der, holding that, at

least
as applied t

o nonemploye e unio n organizers, Jean Coun try impermiss ibly

eliminated

the thre shold

stage of the inquiry

by failing to make a distinction between employ ees an d nonemployees

of the targeted employ

er. See Lechmer

e , 502 U.S. at 538 (citi ng Babcock & Wilcox
, 351 U.S. at 112). The Courtreiterated

the “distinction of substa nce” es tablished

in Babcock & W ilcoxbetween the o rganiz ing activities of employees

and nonemployee s: “As a rule, then, an employer cannot be compelled to allow distribution of union literature by nonemployee organizers on his property.” Id. at 533. As explained by t he Court:

To say that our ca ses requi re accommodation between
em pl oye es’ an d employers’ r ights is a true but incomplete statemen

t, for the

cases a lso go fa

r in establishing the locu s of that accommodation where nonemployee

organizing is at issue. So long as nonemployee

union org anizers h ave rea sonable a ccess to employees

outside an employer’ s propert y, t he requi siteNos. 01-1904/2056 Wolgast Corp. v. NLRB 7

accommodation

has take n place. It is o nly

where such
access is infeasible that it becomes necessary and proper to take the accommodation to the next level, balanc in g the employees’ and employers’ rights . . . .

Id. at 538 (emphasis in original).

Lechmer e thus r eaffirms that, in the generic situation presentinga confl ict be tween the co mpeti ng in terests of employees

and employ ers, the primary responsi bility to make the proper ac commo dation lie s with the B oard, whose determination

is subjec t to review only

for rea son abl ene ss . In the specific case of nonemploy ee union organizers who attempt to enter an employe

r’s pro pe rty for purpose s of organi zing, howeve r, t he Board does not even reac h the balancingst ag e o f t he in qu ir y: A n e mp lo ye r m ay “ post his propert y against nonemployee distribution of union literature if [1] reasonable efforts by

the union through

other av ailable channe ls of communication will enable it to re ach the employ ees 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 Boa rd’s pre-

Lechmere decisions requiring the contractor

to allow un

ion acce ss t o its unionized subcontractor’ s jobsite are founded on its view that the represented

employees’ § 7 r

ights “include the right to receive the various s ervice s of union b usiness a gentswhich services
are necessary

to police existing collective-bargaining agree ments or to negotiate new agre ements.” See, e.g. , Villa Avila
, 253 NLRB 76, 80 (1980), enf’d. as modified , 673 F.2d 281 (9th Cir. 1 982); see also C.E. Wylie Con str. Co. , 295 NLRB 1050, 1050 (1989). The administrative judge in Villa Avila furthe r e xp la in ed th at , b y h iring unionized subcontractors to perform work on the jobsi te, the general contractors
have thereby invited these subcontractor s to, in eff ect, maintain a temporary

place of bu siness on the site, at 8 Wolgast Corp. v. NLRB Nos. 01-1904/2056

which locus the worki ng condition s of th e subcontrac tor s’ employees ar e necessarily

established. It may theref

ore be reasona

bly inferre d that Resp ondents, by hiring s

uch subc ontract

ors, ther eby “neces sarily submittedtheir own

propert y rights to whatever

ac ti vi ty, lawful and protected

by the Act,” mig

htbe engaged in by union business agents in the performance of their duties vis-a-vis thes e subcontr

actors w ho have c ontract

ually granted union business agents unrestricte d access to the site.

Villa A vila
, 253 NLRB 76, 81 (1980 ) (quo ting Hudgens v. NLRB , 230 NLRB 414, 418 (1977) (on remand)). The Board acknowledged

that the union representatives were no t empl oye es of the contractor or subcontractor, but rea soned that under the

factua lly d istinct ci rcumsta n ces involving the subcontractor’s em

ploy ees’ ow

n § 7 righ

t to union a

ccess under a collective bargaining a greement and the union’s manifest re pres entative

capaci ty r egard ing that same rig ht, balancingwas appr

opriate and the r

eprese nted empl oye es’

r ight outweighed the contractor’s rig ht to control the propert

y

. See id. at 80-8 1. Ac cording to the Board, the common and accepted procedures in place at construction sites requiring that the union representa

tives gi ve notice of their presenc e to the general contractor

“effe ctively

accommo date the

interest s and obligations of all parties.” Id. at 81.

Just a few mon

ths a fter Lechmer

e was decided, the Board relied on C.E. Wylie Construction Co. and Vi lla Avil a to reaf firmthat a construction contra ctor must p ermit its unionizedsubcontractor to allow union access pursuant to the collective barga

ining ag reemen t betwee n the su b contractor and th e union

. See CDK Contracting , 308 NLRB at 1117. The Board a

gain dis t ing uished the Supreme Court’s general rule regarding nonemploy ee organizers as reaff

irme d in Lechmer e , stati ng t hat

CDK Contracting

presented “substan tially different issues and considerations.”Id. Under the se particular circumstances, “acc ess is necessary in ord e r to investig ate and t

o resolve contract c ompli ance when theNos. 01-1904/2056 Wolgast Corp. v. NLRB 9

contract grants the union such access.” Id. (citi ng Villa Avila
, 253 NLRB at 81). Unlike the sit uation in Lechmer e , the contractor, “by soliciting other employers to perf

orm work a the jobsite, ‘ invited’ s

ubcontra ctors, a nd th eir respective
s ubco ntractors, onto the jo bsite, an d thus volun

tarily subjected its ‘property rig

hts’ to the U nion’s contractual ‘acce ss’ rights with those contractors.” Id. As a result, “[t]he Respondent [contractor] was not privileged to interfere with the contractual obligations of t he subcontractors and the contractual rights of the unions that represented subcontractor empl oye es.” Id. Finally, without acc ess pursuant to the
access provision, the “Union did not have a reasonable, effective alternative means to enforce its contractual rights.” Id. Respondent

Wolgast a sserts he

re that the Boar

d’s rule in CDK Contractin

g sta nds as a “radical departure” f rom Lechmere. In support, Wolgast points to the Court’s statement in Lechmer

e that, “by its plain te

rms, . . . the NL

RA confers rights only on employees , not on unio ns or th eir nonemployee

organizers.” 502 U.S. at 53 2 (e mphasis in original). Accord ing t o Wo lgast, t his statement provi des a “trump card” by pr

edeter mining th at every

nonemployee union representative can be bar re d f ro m i ts pr op er ty, regar dless of his pur

pose or r elationsh ip with e mployees located on t he jobsite, in the same manner as the nonemployee

union organizer in Lechmere. Wolgast further points out that this court has construe d Lechm ere to extend beyond the purely org anizational situa tio n to apply to situations involving other nonemploy ee union a ctivities

. See, e.g. , Albertson’s Inc. v. NLRB , 301 D.3d 4 41, 454 (6th Cir. 2002) (holding that, unde r Lec hmere , an employer ma y bar nonemployee

union representatives from distributing handbills on the emp loy er’s pr operty in formi ng the
em pl oye r’s patrons of the union’s economic strike with one of the employe

r’s suppl iers); Sandusky Mall v. NLRB , 242 F.3d 682, 686 (6th Cir. 2001 ) ( applying Lechmere in a case involvi ng “area standards” handbilling by none mployee unio n representatives urging

shoppers not to patronize a

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

1 W olgast also reli es on NLRB v. WindemullerElectr ic, I nc. , 34 F. 3d 384 (6th Cir. 1994), in whi ch a panel of this court relied on Lech mere to hold that an employer

can lawf ull y pre vent

it s uni onize d employ ees f rom placing union sti ckers on their employer- owned ha rd hats. A late r panel of thi s cour

t re ject ed Win dem ulle r ’s r ea soning , howe ver, inso far as it treat ed the employ ees’ rig ht t o wear uni on in sig nia as a ma tt er of pro perty rights under Lech mere rather th an of e mployee s’ orga nizatio nal rights under Rep ublic Aviat ion

. See Meij er Inc . v . NL RB , 130 F. 3d 1209, 1217 (6th Cir. 1997) (holding that under the balanci ng test i n Rep ublic Av iat ion , 324 U.S . 793 (19 45) , “emp loyees have a right to we ar unio n insigni a” on employer-owned uniforms). a non-union

contractor); Clevelan d Real Esta te Part ners v

. NLRB , 9 5 F.3d457 (6th Cir. 1996), overruled on other grounds in NLRB v. Webcor Packaging, Inc. , 118 F.3d 1115, 1119 (6th C ir. 19 97) (ap plying L ech mere to handbilling by nonemployee

union represen

tati ves urging a boy

cott of a nonunion store at a strip mall). 1
In our view, Lechmer

e and the cases cited from our court
are readily

distingu ishable fr om th is ca se . M os t s ig ni fi ca nt ly, the union agent at

issue here did not seek access for purposes of organ izing emp loy ees, handbillin g patrons, boycotting, or other similar activity in exercise of the un ion’s “derivative” § 7 rights. Rathe r, Turn wald sought access as the direct repre se ntative of the subcontractor’s employ ees under the authority of t he c ol lec ti ve b arg ain in g agr eem ent . In our view, at issu e here i s the employe es’ own u ndisputed § 7 right to negotia te and bene fit

from a collective bargaining ag

reement whichallows union access fo r purp oses of investigating the premises and interview ing employe es on-site. Neither Lech mere

nor any of our

cases address union access fo r representational purposes.

Inany eve

nt, we have s tated els ewhere that Lechmer

e ’s statemen t that the Act “conf

ers rig hts only on employ

ees”is notso expansiv e as Wolga st suggests. In BE &K C onstr uction Co. v. NLRB , 246 F.3d 619, 626-27 (2001), rev’d on other grounds , 536 U.S. 516 (2002), we were faced with the question whether a union whosemembers work forNos. 01-1904/2056 Wolgast Corp. v. NLRB 11

constructionsubcontr

actors p ossess a § 7 right t hat could potentially be violated by the nonunion contractor-employ er when the employer f

iled baseless lawsui ts in retaliation for the union’s a

ctivities

. In c oncluding

that union s possesssuch
a § 7 right, we distinguished Lechmere as speci fically involv ing nonemploy

ee union organize

rs attemp ting to distribute organizational literature on an employer’s

pr op er ty. Id. at 627. We f

urther noted that , by

allowing exception s to its rule, “t

he Court . . . recognized that § 7 of the Act, by
ne ces sary implication, extended some legislative protection to unions.” Id . at 626.

As a gene ral matte r, it is a r eality in heren t in construction work that a construction subcontractor’s employees wor k on the property of

another. The Board has set forth reasons that adequa tely take into account the specific circumstances presented here, c areful ly c onsideri ng the a sserted

propert y rightsof the contractor and the accommodations required when the co ntrac tor vo lunta rily hire s unio nize d subcontr actors. Contrary

to Wolgast’s suggestion, the Board did not hold thata general contractor is “bound” to a contract termto which it

is n ot a part

y . Rather, it held that the contractor

m ay not interf

ere with the prote cted activity relatingto a u ni on su bc on tr ac to r a nd it s e mp lo ye es in t he
name of private property

interests. See Hudgens , 424 U.S. at 510 nn.3 &11 (recognizing that “a statutory ‘e

mployer’ may viol ate § 8(a)( 1) with re spect to e mploy ees othe r than his own”). We agree with the Board’s r easoning in Villa A vila th at, to the extent that general contractor interfe res with the duties of the union as representative of the subcontracto r’s employ ees, “so are

the employe es’ Se ct ion 7 rig hts diminished.” 253 NLRB at 81. Under the circumstances presented here , th e Board’s balancing of the conflicting int erest s in CDK Contracting is a rea sonably

defensi ble interpretation of the Act.

Fi na ll y, regarding Wolgast’s asse rtion that Turn wa ld waived h is access right be cause

he did not follow Wolgast’s rules for visiting the jobsite, we af firm t he Boar d’s ru ling. 12 Wolgast Corp. v. NLRB Nos. 01-1904/2056

The administrative law judge found no credible evidencethat there were su

ch rules or that the

y w ere con

vey ed to the union agent. This finding was undisturbed by the Board, and we
cann o tsay

it is clea

rly errone ous. We nee d not addr ess Wolgast’s other ar

guments , as they

are who lly w

ithout mer

it.

III. Conclusion

In CDK Contracting , the Board correctly concluded that Lechmer e di d no t co nt rol th e ou tco me o f th e ca se. In exercising its a

uth ority to strike the proper ba lance between th e prope rty interests of a c onstruction contractor and the interest s of

the employees of

its unionize d subcontr

actors to benefit from their collective bargaining agr eement, the Board has create d a rule

that is both

“reasonably

defensi ble” and in accord with the guiding principle of labor law. Ac co rd in gl y, we DENY Wolgast’s petition for review and GRAN T the Board’s request for enforc ement of its order.