*

This decision was originally issued as an “unpublished decision”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

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

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

File Name: 03a0389p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

WOLGAST CORPORATION,

Petitioner/

Cross-Respondent,

v.

NATIONAL LABOR RELATIONS

BOARD,

Respondent/

Cross-Petitioner.

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, United States District Judge for

the Western District of Kentucky, sitting by designation.

Before: MERRITT and DAUGHTREY, Circuit Judges;

RUSSELL, District Judge.**

_________________

COUNSEL

ARGUED: David J. Masud, MASUD, GILBERT &

PATTERSON, Saginaw, Michigan, for Petitioner. Ruth

Burdick, NATIONAL LABOR RELATIONS BOARD,

APPELLATE COURT BRANCH, Washington, D.C., for

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

Schutter, MASUD, GILBERT & PATTERSON, Saginaw,

Michigan, for Petitioner. Ruth Burdick, Aileen A.

Armstrong, David Habenstreit, NATIONAL LABOR

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

Maurice Baskin, VENABLE, BAETJER, HOWARD &

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

_________________

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

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:

[B]usiness 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

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

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 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 agreedupon benefits of that representation may be fully

implemented. The judge ordered Wolgast to allow Local 706

access to Acoustical employees when requested, subject to
Nos. 01-1904/2056 Wolgast Corp. v. NLRB 5

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., 501 U.S. 527 (1992). There, the

Supreme Court held that an employer may categorically

exclude nonemployee union organizers from its property

subject to two narrow exceptions 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

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

the two.” Hudgens v. NLRB, 424 U.S. 507, 521 (1976)

(internal quotations omitted). As always, accommodation

between employees’ § 7 rights and employers’s property

rights “must be obtained with as little destruction of the one

as is consistent with the maintenance of the other.” NLRB v.

Babcock & Wilcox, 351 U.S. 105 (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.” Id. 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 to

employees outside an employer’s property, the requisite
Nos. 01-1904/2056 Wolgast Corp. v. NLRB 7

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

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

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

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 all parties.” Id. at 81. 

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.” Id. Under

these particular circumstances, “access is necessary in order

to investigate and to resolve contract compliance when the
Nos. 01-1904/2056 Wolgast Corp. v. NLRB 9

contract grants the union such access.” Id. (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.” Id. As a result, “[t]he

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.” Id. Finally, without access pursuant to the

access provision, the “Union did not have a reasonable,

effective alternative means to enforce its contractual rights.”

Id. 

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 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 D.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 nonemployeeunion

representatives urging shoppers not to patronize a store hiring

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

1Wolgast 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 (1945), “employees have a right to wear union

insignia” on employer-owned uniforms).

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).1 

 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 purposes. 

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 (2002), we were faced

with the question whether a union whose members work for
Nos. 01-1904/2056 Wolgast Corp. v. NLRB 11

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.

Id. 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.” Id. at 626. 

As a general matter, it is a reality inherent in construction

work that a construction subcontractor’s employees work on

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.

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

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

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.