CDK Contracting Co.

National Labor Relations Board - Board Decisions

Sep 30, 1992

308 N.L.R.B. 1117 (N.L.R.B. 1992)

1117
308 NLRB No. 162
CDK CONTRACTING CO.
1 The Respondent has excepted, inter alia, to portions of the
judge’s recommended remedy. Specifically, the Respondent excepts
to the judge’s failure to permit it to promulgate reasonable rules ap-
plicable to visits to the jobsite by both union business agents and
other visitors. We find merit in the exceptions and shall modify the
Order accordingly. Based on the violation found, the Respondent
shall be ordered to cease and desist from imposing unreasonable or
discriminatory rules relating to access. See C. E. Wylie Construction
Co., 295 NLRB 1050 (1989), enfd. as modified 934 F.2d 235 (9th
Cir. 1991). Contrary to the judge, we shall not at this point limit
the Respondent to those rules that were in effect on October 15,
1991, the date on which it first denied access to union officials. We
also shall not preclude the Respondent from including an escort re-
quirement in those rules, so long as the requirement is reasonable
and nondiscriminatory.
The Respondent also excepts, inter alia, to the judge’s requirement
that it send copies of the Notice to Employees to DeaMore Associ-
ates, Inc. and McBride Sheet Metal, Inc., for posting. We find merit
in this exception. The issue in this case was whether the Respondent
unlawfully denied access to the union officials seeking to commu-
nicate with the employees of MacDonald-Miller, who were rep-
resented by the Union. There is no evidence that the Union sought
to visit the employees of these other two subcontractors, or that their
employees were working on the construction site when the Union
was denied access on October 15 and November 20. Accordingly,
we have modified the Order.
2 The judge found it significant, and we agree, that the Respond-
ent’s own subcontracting agreements required its subcontractors to
assure ‘‘harmonious labor relations’’ and to ‘‘fully abide by all labor
agreements.’’ Although this agreement did not explicitly apply to the
subcontractors of the Respondent’s subcontractors, it is apparent, as
the judge found, that the purpose of the agreements was to foster
labor peace on the jobsite. Obviously, a breach of any labor agree-
ment on the site would disturb labor peace. Thus, it was implicit in
the subcontracting agreements that all labor agreements should be
honored.
3 The clause states as follows:
VISITATIONS: Authorized business representatives and the
Trade Coordinator shall have access to shops and jobs where
members of the Union are at work, it being understood that they
will first make their presence known to the management and that
they will not unnecessarily interfere with the employees or cause
them to neglect their work.
CDK Contracting Company, a subsidiary of FK
Group, Inc. and Sheetmetal Workers’ Inter-
national Association, Local Union No. 16 AFL–
CIO. Case 36–CA–6694
September 30, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On March 25, 1992, Administrative Law Judge Tim-
othy D. Nelson issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as
modified.1
The judge found, and we agree essentially for the
reasons set forth by the judge, that the Respondent vio-
lated Section 8(a)(1) by denying access to the jobsite
to union officials seeking to communicate with em-
ployees of subcontractor MacDonald-Miller, Inc., who
were represented by the Union.
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 dic-
tates that the complaint allegations must be dismissed.
For the reasons that follow, we disagree.
In Lechmere, the Court denied private property ac-
cess to nonemployee union agents who sought access
for the purpose of communicating an organizational
message to employees. Here, substantially different
issues and considerations are before us. At issue here
is whether a general contractor may deny access to a
jobsite to union officials who seek to communicate
with employees of a subcontractor represented by the
union where a visitation clause in the contract between
the subcontractor and the union permits access. As the
judge reasoned, the Respondent, by soliciting other
employers to perform work at the jobsite, ‘‘invited’’
subcontractors, and their respective subcontractors,
onto the jobsite, and thus subjected its ‘‘property
rights’’ to the Union’s contractual ‘‘access’’ rights
with those subcontractors.2 Thus, the Respondent here,
unlike the respondent in Lechmere, voluntarily under-
took to have work performed by unionized subcontrac-
tors on the property. In these circumstances, the Re-
spondent was not privileged to interfere with the con-
tractual obligations of the subcontractors and the con-
tractual rights of the unions that represented sub-
contractor employees. We conclude that the Respond-
ent must permit those contractors to observe their con-
tractual obligations.
Further, the Union did not have a reasonable, effec-
tive alternative means to enforce its contractual rights
and communicate with represented employees. Its visi-
tation clause3 contemplates visitation at the jobsite, and
we infer that it was negotiated because visitation was
deemed necessary to ensure contract compliance. The
Board has consistently held that ‘‘access is necessary
in order to investigate and to resolve contract compli-
ance when the contract grants the union such access.’’
C. E. Wylie Construction Co., supra at 1051. See also
Villa Avila, 253 NLRB 76, 81 (1980), enfd. as modi-
fied 673 F.2d 281 (9th Cir. 1982).
In light of the above considerations that differ in
critical respects from those present in Lechmere, we
find that Lechmere does not mandate dismissal of the
complaint in this case.
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1991 unless I specify otherwise.
2 The amended complaint more precisely alleges that on one of the
two dates in question—October 15—the Respondent unlawfully de-
nied access not only to an agent of the (Charging Party) Union, but
also to representatives of ‘‘other unions representing employees on
the jobsite.’’ However, as I explain elsewhere below, the record con-
tains no substantial support for the claim that the Respondent’s ac-
tions vis-a-vis said ‘‘other unions’’ was unlawful. Indeed, the Gen-
eral Counsel does not specifically argue the merits of the ‘‘other
unions’’ claim. In all the circumstances, therefore, I will decide only
whether the Respondent violated Sec. 8(a)(1) by denying access to
the (Charging Party) Union.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, CDK
Contracting Company, a subsidiary of FK Group, Inc.,
Vancouver, Washington, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) On the Union’s request, permit it to enter the
VA Project jobsite to communicate with the employees
of MacDonald-Miller that it currently represents; pro-
vided, however, that nothing herein shall be construed
as preventing the Respondent from applying reasonable
and nondiscriminatory rules pertaining to nonemployee
access.’’
2. Substitute the following for paragraph 2(c).
‘‘(c) Sign and return to the Regional Director suffi-
cient copies of the notice for posting by MacDonald-
Miller, Inc., at places where notices to employees are
customarily posted.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse or otherwise interfere with the
Union’s right to enter the VA Project jobsite for the
purpose of communicating with employees represented
by the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed in Section 7 of the Act.
WE WILL, on the Union’s request, permit it to enter
the VA Project jobsite for the purposes of commu-
nicating with the employees of MacDonald-Miller,
Inc., which it currently represents.
CDK CONTRACTING COMPANY, A SUB-
SIDIARY OF FK GROUP, INC.
Linda J. Scheldrup, Esq., for the General Counsel.
James S. Cheslock, Esq., of San Antonio, Texas, for the Re-
spondent CDK Contracting Company.
Milton Hill, Business Manager and Secretary-Treasurer, for
the Charging Party Sheet Metal Workers Local 16.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge. I heard
this case in trial in Portland, Oregon, on January 9, 1992,
based on a complaint and notice of hearing issued by the Re-
gional Director for Region 19 of the National Labor Rela-
tions Board on December 9, 1991,1 following his investiga-
tion of an unfair labor practice charge filed by Sheet Metal
Workers Local 16 (the Union) on October 25. The Regional
Director issued narrowing amendments to the complaint on
December 17. In substance, the narrowed complaint alleges
that CDK Contracting Company (the Respondent), as the
general contractor on a certain Veterans Administration hos-
pital project, violated Section 8(a)(1) of the Act when, on
October 15, and again on November 20, it denied jobsite ac-
cess to an agent of the Union who was seeking to make on-
site contacts with employees who were represented by the
Union and employed by a subcontractor who was bound to
labor agreements containing ‘‘visitation’’ provisions.2
The Respondent’s answer admits that it is an ‘‘employer’’
whose operations are ‘‘in commerce’’ within the meaning of
Section 2(2), (6), and (7) of the Act, and whose relevant di-
rect or indirect business transactions satisfy the Board’s
‘‘discretionary’’ standards for the assertion of jurisdiction,
and that the Board’s jurisdiction over this controversy is
therefore properly invoked. On the merits, it admits in sub-
stance that its agents denied jobsite access to the Union’s
agent, John Snyder, on October 15 and November 20, but it
denies wrongdoing in all the circumstances.
I have studied the whole record, including the parties’
posttrial briefs; I have considered as well the demeanor of
the witnesses as they testified, and I have assessed the prob-
abilities inhering in the undisputed circumstances. Based on
all of that, and more particularly on the findings and reason-
ing below, I will conclude that the Respondent violated Sec-
tion 8(a)(1) substantially as alleged in the complaint.
1119CDK CONTRACTING CO.
3 The Respondent has contracted directly with McBride to install
sheet metal associated with roofing and gutters. Although the record
is not clear, it appears that McBride (itself a party to the ‘‘Columbia
SMACNA’’ agreement with the Union described below) employed
sheet metal employees on an intermittent basis on the site during
parts of the same October 15-November 20 period. (Thus, the Re-
spondent’s project manager, Ralph Thorpe, testified with certainty
that none of McBride’s employees was onsite on October 15, but he
was uncertain whether any were onsite on November 20.) In addi-
tion, the Respondent has contracted directly with DeaMore to per-
form installation of an aluminum and glass ‘‘storefront’’ facing. Al-
though the record discloses that DeaMore, like McBride, is itself
bound to the Columbia SMACNA agreement, DeaMore had not per-
formed any work on the site at times relevant to this case, but was
due to begin such work in February or March 1992. 4 See G.C. Exh. 6, art. XIV.
FINDINGS OF FACT
I. THE GENERAL COUNSEL’S PRIMA FACIE CASE
A. The Parties; the Respondent’s and Subcontractors’
Roles; and Relevant Labor Relationships and
Contract Provisions
The Respondent is an Arizona corporation, engaged by the
Veterans Administration to be the general contractor respon-
sible for construction of additions to a VA hospital complex
in Vancouver, Washington (the VA Project), located across
the Columbia River from Portland, Oregon. The Respondent
began work on the VA Project on August 20, 1990. Under
its VA contract, the Respondent is responsible for control
over and access to the jobsite, which comprises roughly
70,000 square feet of U.S. Government-owned land. Consist-
ent with that ‘‘steward/guardian’’ function, the Respondent
has placed a perimeter fence around that site.
The Union is headquartered in Portland, and its Inter-
national body has conferred ‘‘jurisdiction’’ on the Union
over a territory which includes the VA Project site.
The Respondent has let subcontracts to various specialty
contractors, including to Total Mechanical, Inc. (Total), the
company which is chiefly responsible for all mechanical sys-
tems, including piping and ductwork. Total has in turn sub-
contracted certain ductwork to MacDonald-Miller, Inc. (Mac-
Donald). Throughout the October 15-November 20 period in
which the instant controversy arose, MacDonald had sheet
metal employees working on the site, and (by virtue of pro-
visions in a labor agreement between the Union’s sister
Local 66 and a contractor’s association which included Mac-
Donald, quoted below) the ‘‘working conditions’’ of these
employees are largely governed by a ‘‘local Agreement’’ ad-
ministered by the Union which contained ‘‘visitation’’ lan-
guage. The Respondent has also contracted certain work re-
quiring sheet metal employees directly to subcontractors
other than MacDonald—namely, McBride Sheet Metal, Inc.
(McBride) and DeaMore Associates, Inc. (DeaMore)—but it
was only MacDonald’s employees to whom the Union was
seeking access on October 15 and November 20, as I detail
in the next section.3 Accordingly, this case does not present
a ‘‘live’’ case or controversy involving the Union and any
possible rights of access to McBride’s or DeaMore’s employ-
ees.
The Respondent and Total have no direct labor relation-
ship nor agreement with any unions. However, MacDonald
(and McBride and DeaMore) are bound to ‘‘local Agree-
ments’’ with the Union or with one of its sister locals, nego-
tiated by local ‘‘Chapters’’ of a national multiemployer
group of sheet metal contractors known by the acronym,
‘‘SMACNA.’’ MacDonald, Total’s subcontractor, is bound to
an agreement (G.C. Exh. 6) negotiated between the Union’s
Seattle, Washington sister Local (Local 66) and the ‘‘West-
ern Washington Chapter’’ of SMACNA (Western Washing-
ton SMACNA). That agreement contains ‘‘visitation’’ lan-
guage4 which is materially similar to the language quoted
later below, but addresses itself chiefly to work performed by
signatory contractors within Local 66’s ‘‘Western Washing-
ton’’ jurisdiction. It also provides, however (added empha-
sis):
When the Employer has any work . . . outside of the
area covered by this Agreement and within the area
covered by another Agreement with another union af-
filiated with the Sheet Metal Workers International As-
sociation . . . [a]ll [but two] . . . sheet metal workers
shall come from the area in which the work is to be
performed[,] [and] . . . shall be paid . . . no . . . less
than the established wage scale of the local Agreement
covering the territory in which such work is performed
. . . and the Employer shall be otherwise governed by
the established working conditions of that local Agree-
ment.
In the case of work at the VA Project, as all parties agree,
the governing ‘‘local Agreement’’ is the one negotiated be-
tween the Union and the ‘‘Columbia Chapter’’ of SMACNA
(Columbia SMACNA). That agreement (G.C. Exh. 2) con-
tains a ‘‘visitation’’ provision, as follows:
VISITATIONS: Authorized business representatives
and the Trade Coordinator shall have access to shops
and jobs where members of the Union are at work, it
being understood that they will first make their pres-
ence known to the management and that they will not
unnecessarily interfere with the employees or cause
them to neglect their work.
The Respondent does not dispute, and I find in any case,
that, as a consequence of the first above-quoted language in
the Western Washington SMACNA contract, MacDonald
was bound while on the VA Project to observe the above-
quoted visitation provisions in the governing ‘‘local Agree-
ment,’’ that is, the Columbia SMACNA agreement.
The Respondent’s own interest in peaceful labor relation-
ships and observance of labor agreements by its subcontrac-
tors is plainly evidenced by a provision in its subcontracting
agreements with Total (duplicated in its subcontracts with
McBride and DeaMore), as follows:
11.17 The Subcontractor shall do whatever is nec-
essary in the prosecution of its work to assure harmo-
nious labor relations at the Project and to prevent
strikes or other labor disputes. The Subcontractor shall
fully abide by all labor agreements and jurisdictional
decisions presently in force or subsequently executed
with or by the Subcontractor. The Subcontractor’s fail-
ure to so act may be deemed a material breach of this
Contract.
1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Other, more remote ‘‘background’’ was offered by the Respond-
ent’s Project Manager, Ralph Thorpe, concerning alleged ‘‘neutral
gate’’ picketing many months earlier, and other forms of alleged
‘‘harassment’’ of the Respondent by a variety of building trades
unions. I will reserve discussion of this more remote ‘‘background’’
to my analysis of the Respondent’s defenses to the complaint.
6 Snyder had been involved with furnishing sheet metal workers to
MacDonald since it began working on the VA Project as Total’s
subcontractor. His first dispatch to MacDonald, in February, was a
traveling member of Seattle sister Local 66, Chet Ward, who became
MacDonald’s ‘‘job foreman.’’ Thereafter, he dispatched other mem-
bers of the Union to MacDonald, as need arose.
7 Not long after this, Thorpe discovered their presence on the site
and instructed Total’s superintendent to ask them to leave. From the
gate guard’s ‘‘Visitor’s Log,’’ Thorpe infers that the guard admitted
them only because they had misrepresented themselves as being as-
sociated with Total. The log book is facially inadmissible hearsay,
although Thorpe arguably offered enough foundation to authenticate
it as a ‘‘record of regularly conducted activity,’’ an exception to the
hearsay rule under Fed. R. Evid., Rule 803(6). In any case, as I
noted at the outset, despite a complaint count averring that the Re-
spondent violated Sec. 8(a)(1) by denying jobsite access to ‘‘other
unions’’ besides the Charging Party Union, the facts pertinent to the
possible statutory access rights of the ‘‘UA’’ and ‘‘Laborers’’’ rep-
resentatives were not adequately litigated. (Thus, for example, there
is no evidence that any employees represented by the ‘‘UA’’ or the
‘‘Laborers’’ were working on the VA Project on October 15.) Ac-
cordingly, and inasmuch as I intend to determine only whether the
Respondent’s denial of access to the (Charging Party) Union violated
Sec. 8(a)(1), it is irrelevant how it was that the UA and Laborers’
representatives may have initially been passed through the guard
gate.
8 Thorpe, explaining the same events from his perspective inside
the site, admits that he was informed that ‘‘there were a large num-
ber of union officials at the . . . gate requesting permission . . . as
I was informed, three people from the Sheet Metals Local, [*] the
two pipefitters people plus a carpenters rep and a carpenter . . . .’’
Thorpe further admits that he instructed that the union agents not be
allowed to enter, but that, instead, a representative from each of the
subcontractors on the site would be sent to the gate to confer with
the union officials for each of the involved trades.
[*] The gate guard’s ‘‘Visitor’s Log’’ indicate that the guard re-
corded not only Snyder, but also Mohlis and Kirkpatrick as
‘‘Sheet Metal Union’’ agents. Snyder’s testimony is silent con-
cerning what Mohlis or Kirkpatrick may have told the guard be-
fore the guard made the entries in question. I do not find the
entries relevant to ultimate issues, even if admissible as a hear-
say exception concerning what the latter agents may have told
the guard. Again, the only fully-litigated question (and the only
one the General Counsel has pursued in any case) is whether the
Respondent was entitled to deny access to the Union on October
15 and, later, on November 20.
B. Denial of Jobsite Access on October 15 and
November 20
My findings about the immediate background to the key
events described in this section are based on the undisputed
testimony of Union Business Representative John Snyder.5
My findings about the key events themselves require ref-
erence both to Snyder’s testimony and to that of the Re-
spondent’s project manager Ralph Thorpe, whose perspective
from within the VA Project site was obviously different from
that of Snyder, standing on the outside. I found each of these
witnesses to be apparently candid in describing facts, and in
the end I do not detect any serious lack of harmony in their
factual accounts.
Immediate Background
On October 11, Don Perman, the Union’s ‘‘Trade Coordi-
nator,’’ gave the Union’s business representative, John Sny-
der, a typed letter containing eight signatures, most of which
Snyder recognized as signatures of members of the Union
then working for MacDonald, including Perman’s son, Jack.6
The letter stated in material part:
We . . . request that we be represented by a Sheet
Metal Workers Local #16 Business Agent on the [VA]
construction site . . . .
Please attend to this matter as soon as possible due
to the many issues that need to be disgust [sic] with
him on this job site.
On October 14, Snyder called MacDonald’s foreman, Chet
Ward, and told him he planned to visit the VA Project the
next morning. Ward said that he would notify someone from
Total about this, who would, in turn, notify the Respondent.
In fact, Project Manager Thorpe candidly acknowledged that
he received such notice on the late afternoon of October 14,
in the form of a copy of a note from Ward, passed on to
him by someone from Total. He recalled that the note men-
tioned not only Snyder’s name, but the names of two other
agents of the Union as the intended visitors. Finally, Thorpe
acknowledged:
Early in the morning of the 15th I contacted Total Me-
chanical . . . and advised them that these union offi-
cials would not be allowed access to the jobsite.
On the morning of October 15, Snyder first attended a
meeting of the ‘‘safety committee’’ of the Columbia Pacific
Building Trades Council. According to Snyder, that commit-
tee, composed of representatives from various trades, periodi-
cally selects one or more area construction jobs to visit, to
‘‘make sure that the job is safe for our people.’’ Snyder in-
formed the committee that he was already planning to visit
the VA Project that morning, and suggested that the whole
committee go with him. Upon arrival at the site at about 11
a.m., the nine building trades representatives, including Sny-
der, conferred briefly and decided to approach the perimeter
gate in groups of two or three. The first such group, com-
posed of representatives from the ‘‘UA’’ (‘‘pipefitters’’) and
the Laborers’ union, conferred with the security guard at the
gate (the Respondent employed the security service) and
were allowed to enter.7 About 10 minutes later, Snyder and
two representatives of other unions (Bricklayers Agent John
Mohlis, and Painters Agent John Kirkpatrick) likewise ap-
proached the gate. Snyder identified himself to the guard and
told him he wanted to enter to ‘‘see my members that are
working for MacDonald-Miller.’’ The guard replied that he
would have to ‘‘call . . . in.’’ Snyder then listened to the
guard’s two-way radio transmission with a ‘‘female on the
other end’’ who ‘‘said she would check and get right back
with him.’’ About 3 minutes later, Snyder heard the ‘‘fe-
male’’ radio back to the guard with instructions that Snyder
should wait outside, and that a representative from Mac-
Donald would be sent out to talk to him.8 Later, Job Fore-
man Ward from MacDonald came out and conferred with
Snyder for a few minutes, during which he told Snyder that
1121CDK CONTRACTING CO.
9 Thorpe again admits that he was the one responsible for the deci-
sion to deny access to Snyder on November 20.
10 A further preliminary note: This case was litigated, submitted,
and briefed before the Supreme Court issued its recent decision in
Lechmere, Inc. v. NLRB, 112 S.Ct. 841 (1992). As a consequence,
I do not have the benefit of the parties’ arguments concerning the
possible impact of Lechmere on this case. Although I deem it more
appropriate for the Board itself to decide in the first instance the ex-
tent to which its prior holdings may have been altered by a new
opinion from the Court, I cannot avoid the conclusion that Lechmere
has disturbed the Board’s analytical approach expressed in Jean
Country, 291 NLRB 11 (1988), only as applied to the ‘‘access’’
rights to unrepresented employees of nonemployee union ‘‘organiz-
ers.’’ But this case does not involve denying access to private prop-
erty of ‘‘union organizers’’; rather, it involves a general contractor’s
denial of access sought by a union to a subcontractor’s employees
on a common jobsite where the subcontractor is itself bound to a
labor agreement conferring access rights on the union in question.
And I do not find in Justice Thomas’ opinion for the Lechmere ma-
jority any reason to suppose that the Court intended to significantly
alter the way the Board has approached cases of that latter type. Ac-
cordingly, I will decide this case within the framework of estab-
lished, pre-Lechmere Board law, just as the parties themselves have
submitted it.
11 In C. E. Wylie, supra, the Board noted that the U.S. Navy was
the landowner, but, as the VA did in this case, ‘‘the Navy . . . had
specifically delegated to Wylie [the general contractor] the right to
Continued
he had ‘‘four or five’’ other sheet metal workers working
that day. Apparently, from Thorpe’s admissions, all other
waiting union representatives from the building trades safety
committee were likewise denied entry to the site, but again,
there is no evidence that any employees represented by any
of those trades were then working on the site.
On November 20, Snyder again visited the site, alone this
time, and presented himself to the gate guard, saying he
would like ‘‘to go in and see the employees of MacDonald-
Miller.’’ The guard again conferred via two-way radio, this
time with a man, who refused Snyder’s access request, but
said that he would again arrange for Chet Ward to come out-
side to talk to Snyder.9 Ward came out soon after this, and
chatted briefly with Snyder.
The General Counsel sought to litigate yet a third
(postcomplaint) incident during which Snyder again sought
access to the VA Project site, but this was interrupted by the
Respondent’s acknowledgment through counsel that it has at
all times since November 20 continued to refuse to deny ac-
cess to the VA Project site to the Union. I therefore ruled
that any such evidence of ‘‘continuing’’ refusals would be
cumulative, and the General Counsel acquiesced.
II. ANALYSIS; CONCLUSIONS OF LAW
A. Introduction; Legal Setting
This is a case alleging an 8(a)(1) violation. Section 8(a)(1)
of the Act makes it unlawful for an employer to ‘‘interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed in Section 7.’’ Section 7 of the Act states
in pertinent part, ‘‘Employees shall have the right to form,
join, or assist labor organizations, and to engage in collective
bargaining with their employer through representatives of
their own choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutual
aid and protection . . . .’’
Personal contact with a union representative is typically
essential to, and an integral part of, employees’ exercise of
Section 7 rights. And, as all parties recognize, the exercise
of this right is inevitably ‘‘interfered with,’’ whenever an
employer prevents such union-employee contacts from taking
place. But, as the parties also recognize, when a non-
employee union agent seeks access to employees working on
property owned by another, the employees’ Section 7 rights
of ‘‘contact’’ with the union agent will conflict with the
owner’s right to control its property if the owner (or, as here,
the owner’s surrogate) does not want to admit the union
agent onto the property. Such a conflict is obviously pre-
sented in this case.10
Under a traditional analysis, the Board seeks to resolve
conflicts between Section 7 rights of employees and property
rights of employers or other parties by reference to the ‘‘bal-
ancing test’’ originally enunciated by the Supreme Court in
NLRB v. Babcock & Wilcox, 351 U.S. 105, 112-113 (1956),
a case involving an industrial employer’s refusal to allow
nonemployee union organizers access to its private parking
lot. The ‘‘balancing test’’ in Babcock & Wilcox was ex-
tended by the Court in Hudgens v. NLRB, 424 U.S. 507
(1976), a case not involving entries by union ‘‘organizers’’
to private premises, but entries by employees themselves—
warehouse workers engaged in an economic strike who were
threatened with arrest for criminal trespass by an agent of a
private shopping center owner when they were engaged in
peaceful picketing in front of a retail store of their employer
located within the shopping center. Holding that ‘‘balancing’’
was required in the latter situation as well, the Court stated
in Hudgens (424 U.S. at 522):
The Babcock & Wilcox opinion established the basic
objective under the Act: accommodation of § 7 rights
and property rights ‘‘with as little destruction of one as
is consistent with the maintenance of the other.’’ The
locus of that accommodation, however, may fall at dif-
fering points along the spectrum depending on the na-
ture and strength of the respective § 7 rights and prop-
erty rights asserted in any given context. In each ge-
neric situation, the primary responsibility for making
this accommodation must rest with the Board in the
first instance.
Since Hudgens, the Board’s approach to cases involving
the ‘‘generic situation’’ presented here—a general contrac-
tor’s denial of access sought by a union to a subcontractor’s
employees on a common construction site where the sub-
contractor is itself bound to a labor agreement conferring ac-
cess rights on the union in question—is reasonably settled.
The lead case is Villa Avila, 253 NLRB 76 (1980), enfd. as
modified 673 F.2d 281 (9th Cir. 1982). See also, e.g., C. E.
Wylie Construction Co., 295 NLRB 1050 (1989), enfd. as
modified 934 F.2d 235 (9th Cir. 1991); Mayer Group, Inc.
296 NLRB 25 (1989).
In Villa Avila, supra, the administrative law judge, af-
firmed by the Board, discussed a number of general consid-
erations pertaining to the ‘‘balancing’’ of employee rights
under Section 7 and the rights of property owners (there, as
here, exercised through their surrogates, the general contrac-
tors responsible for the construction projects in question).11
1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
exclude others from the construction jobsite.’’ The Board thereby
implicitly equated the general contractor’s rights with those of the
actual landowner. Id. at 1050. See also Mayer Group, supra at 25.
12 253 NLRB at 81.
Among other points, the judge addressed the general contrac-
tors’ arguments that the unions seeking jobsite access had
reasonable alternative means to make contact with employees
other than talking to them on the jobsite, e.g., at ‘‘curbside’’
or at the ‘‘union hall’’ or ‘‘by telephone.’’ Rejecting this, the
judge stated:
the inefficiency of such methods is abundantly appar-
ent, particularly in the construction industry which cus-
tomarily requires the frequent movement of employees,
materials, and machinery, from one job to another, on
an intermittent and irregular basis, and under cir-
cumstances requiring varying conditions of safety,
changes in the assignment and coordination of work
among various crafts, and the continual hiring and lay-
ing off of employees. To preclude or severely restrict
union-representative access to the jobsite would signifi-
cantly impair a business agent’s ability to insure that
significant subcontractors are adhering to their contrac-
tual commitments, and to the extent that such policing
of the contract is impaired, so are employees’ Section
7 rights diminished.12
Thus finding a substantial Section 7 interest in permitting
jobsite access by union agents to unionized subcontractors’
employees, the judge assessed the relative strength of the
general contractors’ own ‘‘property’’ interests, concluding
that the latter interests were outweighed by the former. In
reaching that conclusion the judge found it especially signifi-
cant that the general contractor had ‘‘invited’’ subcontractors
to the jobsite who themselves were bound to union contracts
containing ‘‘access’’ provisions. Thus, without suggesting
that the general contractors were themselves bound to the
labor agreements between the subcontractors and the unions
in question, the judge observed (id. at 81) that the general
contractors’ suggested ‘‘extra-contractual restraints on union
business representatives . . . would have the effect of . . .
nullifying and rendering meaningless the very important pro-
visions of the collective-bargaining agreements which do not
so restrict union representatives’ access to unit employees,
and their employers, on construction sites.’’ More fundamen-
tally, the judge reasoned (253 NLRB at 81):
Respondents, by hiring subcontractors to perform work
on the jobsites, have thereby invited these subcontrac-
tors to, in effect, maintain a temporary place of busi-
ness on the site, at which locus the working conditions
of the subcontractors’ employees are necessarily estab-
lished. It may therefore be reasonably inferred that Re-
spondents, by hiring such subcontractors, thereby ‘‘nec-
essarily submitted their own property rights to whatever
activity, lawful and protected by the Act,’’ might be en-
gaged 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. See Scott Hudgens, 230 NLRB 441,
supra.
This latter passage, ‘‘inferr[ing]’’ a ‘‘submi[ssion]’’ of the
general contractor’s property rights to the access rights which
its subcontractors have ceded in their own labor agreements
to union agents, has been the ratio decidendi of the Board’s
more recent decisions in cases involving situations like those
presented in Villa Avila. Thus, in C. E. Wylie, supra, the
Board stated (added emphasis):
as recognized in Villa Avila, the Respondent’s interest
in this property right is diminished to the extent that it
admitted to this site certain unionized subcontractors
whose . . . agreements with the . . . Unions included
specific provisions allowing access to jobsites.
. . . .
As noted by the judge, these contractual access pro-
visions lend further support to the General Counsel’s
claim that the Unions’ attempts to gain access to the
. . . jobsites entailed the exercise of strong Section 7
rights.
And in Mayer Group, supra, the Board echoed this view,
stating (id. at 25, added emphasis),
as stated in Villa Avila, a general contractor’s property
right is reduced when it invites unionized subcontrac-
tors onto its property where those subcontractors have
collective bargaining agreements that include access
provisions.
B. The Law as Applied to the Respondent’s Conduct
Vis-a-Vis the Union
The facts found to this point, linked to the Villa Avila line
of cases, establish a strong prima facie basis for sustaining
the complaint insofar as it alleges that the Respondent vio-
lated Section 8(a)(1) when it denied the Union access to the
site on the two dates in question. It is a significant factor fa-
voring the General Counsel’s complaint here, if not a dis-
positive one, that the Respondent, by ‘‘inviting’’ Total onto
the jobsite, and by delegating to Total the right to ‘‘invite’’
MacDonald onto the site, has ‘‘submitted’’ its own property
rights (more precisely, those of the VA) to the Union’s ‘‘ac-
cess’’ rights established by the ‘‘local Agreement’’ which
governs the ‘‘working conditions’’ of MacDonald’s employ-
ees on the jobsite. Thus, the Respondent’s abstract property
rights have been ‘‘reduced’’ or ‘‘diminished’’ by these facts
alone.
I note that the Respondent, presumably acting in the VA’s
interests, also compromised the property claim it now seeks
to defend by the provisions in its own subcontracting agree-
ments, quoted earlier, wherein it required its subcontractors,
inter alia, to ‘‘fully abide by all labor agreements . . . pres-
ently in force or subsequently executed with or by the Sub-
contractor,’’ on penalty of being held in ‘‘material breach’’
of their subcontracting agreements. These provisions strongly
imply that the Respondent operated under a duty to the VA
to take all steps necessary to prevent labor disputes on the
Project from arising or festering, including but not limited to
those arising from breaches of labor agreements. Accord-
ingly, the Respondent’s property interest was further ‘‘dimin-
ished,’’ or ‘‘reduced,’’ by the ‘‘labor peace’’ requirements it
1123CDK CONTRACTING CO.
13 In any case the Respondent offered no evidence that the VA had
instructed it to deny access or otherwise to interfere with union rep-
resentatives’ attempts to conduct jobsite visits with employees of
unionized subcontractors.
14 The Respondent asserts (Br. 10) that ‘‘No violation of the Act
occurred[,]’’ and thus invites me to find, on ‘‘balance,’’ that it was
entitled fully to deny to the Union’s Snyder any onsite contact with
MacDonald’s employees on both October 15 and November 20. But
the Respondent also takes the ‘‘Alternate Position’’ (Br. at p. 10)
concerning the scope of any remedial order I might recommend if
I find that a violation occurred. I will discuss the latter questions in
the Remedy section. Here, I deal only with the merits of the former
question.
15 According to photographs identified by Thorpe which were
taken on April 12, one picket sign used at that time stated:
CDK IS UNFAIR[.] HE IS UNDERMINING THE STAND-
ARDS OF THIS COMMUNITY by PAYING SUBSTANDARD
FRINGE BENEFITS[,] IMPORTING WORKERS[.] THIS
PICKET IS PROVIDED BY [overwritten by ‘‘SANC-
TIONED’’] THE COLUMBIA PACIFIC BUILDING TRADES
COUNCIL, AFL–CIO
Another photograph shows another picket sign used on the same
date containing the legend:
CDK DOES NOT HAVE A CONTRACT WITH THE LOCAL
BUILDING TRADES
Yet another photograph of another picket sign used the same day
shows a sign with the legend:
C.D.K. DOES NOT HAVE A CONTRACT WITH 5 CRAFTS
[listing] CARPENTERS[,] CEMENT MASONS[,]
ENGINEERS[,] LABORERS[,] TEAMSTERS[.] SANCTIONED
16 The record does not disclose that the Union was a target of any
such charges. The parties stipulated that the Respondent withdrew
these charges after ‘‘neutral’’ gate picketing ceased. Thorpe further
testified that the Respondent filed a second charge on May 6 (appar-
ently because the picketing continued to be conducted ‘‘outside’’ the
Project entrances even though the Respondent in the meantime had
reestablished the ‘‘two-gate’’ system within the perimeter of the
Project, seeking to avoid traffic tieups and other disruptions occa-
sioned by the picketing at the original, ‘‘outside’’ gate(s). Again it
does not appear that the Union was targeted by these charges. Again,
the parties stipulated that the Respondent withdrew these charges
once the picketing was conducted at the reestablished gates within
the perimeter fence.
17 The VA Project operates under ‘‘Buy-America’’ material pur-
chasing rules, according to Thorpe.
18 On rebuttal, Snyder testified that the Union carried its own in-
surance policy on Snyder and its other agents, which would have
covered any expenses associated with any such mishaps as described
by Thorpe.
19 In counsel’s footnote to this passage, he responds to Snyder’s
rebuttal [footnote, supra] as follows:
Continued
held out as a material consideration in the granting of its
subcontracts to unionized subcontractors.13
The Respondent argues that other considerations outweigh
or override the ones just discussed clearly supporting the
striking of a balance in favor of the Union’s access.14 I start
with Project Manager Thorpe’s explanation of the ‘‘back-
ground’’: Thorpe testified that the Respondent had been pre-
viously ‘‘harassed’’ in various ways by various building
trades unions. Specifically, he referred to ‘‘picketing’’ di-
rected against the Respondent, which began on or about
April 12, initially conducted both at a gate designated for
‘‘CDK’’ and at a gate designated for ‘‘neutrals.’’15 Thorpe
admitted, however, that he was unaware of any participation
in such picketing by any agents or members of the Union.
He admitted also that ‘‘neutral’’ gate picketing subsided after
‘‘three or four days,’’ after the Respondent filed charges on
April 12, apparently alleging Section 8(b)(4)(B) violations.16
Clearly, the only arguably unlawful picketing described by
Thorpe, if any, was brief, was not shown to have been at-
tended by onsite disruptions of work, much less violence or
sabotage, and, as of October 15, was relatively ancient his-
tory.
Thorpe also generally described incidents—never identify-
ing dates or time periods involved—in which pickets had
‘‘followed our pickup trucks off the jobsite,’’ and, in one in-
stance, had followed one of the Respondent’s superintendents
to his home and then had picketed in the vicinity. Again, the
Union was not implicated in such actions, and, from
Thorpe’s summary descriptions, there is no basis in any case
for supposing that such activity constituted anything other
than lawful ambulatory picketing in furtherance of a primary
labor dispute. With equal vagueness as to timing, Thorpe de-
scribed ‘‘harassment’’ from ‘‘various BAs . . . calling the
VA and making unproven allegations of use of foreign mate-
rials and the likes . . . .’’17 Similarly, Thorpe claimed that
(unidentified) ‘‘union officials’’ have made calls to the VA
during concrete pours alleging that the delivery trucks had
delayed so long before pouring that the concrete had
overcured and would no longer meet contract specifications.
Again, with respect to the latter incidents, the Union was in
no way shown to be implicated; moreover, Thorpe’s informa-
tion about such alleged harassment was necessarily based on
hearsay from VA officials, who were not themselves called
to testify.
It was against this background that Thorpe explained his
more specific reasons for denying access to the Union on
October 15 and November 20. Editing out certain digres-
sions, this is what he said about October 15:
First off, I have no contractual arrangement with any
of these union representatives who appeared at our gate.
. . . Second off, these officials or union officials had
harassed my project since March [sic] and were con-
tinuing to harass it. . . . I thought it was rather ridicu-
lous that I was being harassed by nine business agents
who had never appeared there before, suddenly appear-
ing on one day . . . to check my site and . . . to visit
the people. . . . And also, I have the overall insurance
liability . . . . It is my insurance policy . . . [and] I
don’t want to take the liability of a business agent fall-
ing from a building or injuring himself in any way.18
Concerning his refusal again on November 20 to permit
the Union’s Snyder to enter the site alone, Thorpe said: ‘‘For
the very same reasons. I have no relationship with Mr. Sny-
der or with MacDonald-Miller, whom he represents.’’
Retranslating and summarizing Thorpe’s explanations, the
Respondent’s counsel argues on brief:
CDK denied access to Snyder and the others because
the unions had harassed his [sic] project since March
and were continuing to do so; it had no labor agreement
with any of the unions involved and because if [sic]
could be liable if any of the visitors were injured on
the jobsite.19 Additionally, the incident on October 15
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The fact that Mr. Snyder is covered by workers compensation
insurance from the Sheet Metal Workers would not prevent him
from suing CDK.
20 And see Villa Avila, supra, 253 NLRB at 82, finding an 8(a)(1)
violation in the eviction of Cement Masons Agent Nieto from the
jobsite on two occasions during concrete pours involving a concrete
supplier with whom the Cement Masons had a labor agreement con-
taining ‘‘access’’ provisions, and where, ‘‘so far as the record
shows, Cement Masons . . . had not theretofore engaged in unlawful
secondary activity at this site[, and u]nder these circumstances it is
reasonable to assume that Nieto had a legitimate reason to be on the
job.’’
21 And see Mayer Group, supra, 296 NLRB 25 fn. 4 (1989), where
the Board dismissed a similar argument.
22 295 NLRB 1050.
23 See also, C. E. Wylie, supra; Mayer Group, supra.
involved an attempt by nine unions, many of which did
not have members working at the site, to visit the site
simultaneously. [Tr. citation omitted.] The ‘‘mass visit’’
on October 15 would have been disruptive and con-
stituted further harassment of CDK.
I am not persuaded. Indeed, I view these various expla-
nations and claims as largely pretextuous, invoked to mask
a more fundamental wish on the Respondent’s part simply to
prevent the Charging Party Union (and unions, generally)
from having any significant ‘‘presence’’ on the Project, or
influence over the terms and conditions under which any
unionized employees might perform their work on the
Project.
To begin with, it completely ignores the Villa Avila ration-
ale to suppose that the Respondent’s lack of a ‘‘labor agree-
ment’’ directly with the Union would excuse barring the
Union from the site, under circumstances where the Re-
spondent had ‘‘invited’’ subcontractors to the job who did
have labor agreements with the Union containing access pro-
visions. This argument is therefore largely irrelevant.
Regarding the alleged ‘‘background of harassment,’’ it suf-
fices to observe that Thorpe never identified any reasonable
basis for holding the Union responsible for the alleged prior
‘‘harassment,’’ which in any case was not shown to have in-
volved any plainly unlawful activity by any particular union
or combination of unions. Thus, the Union’s claims of a right
of access was not ‘‘reduced’’ simply because of this back-
ground.20 Moreover, it is impossible to accept that Snyder’s
presence on October 15 in the company of agents of unions
which may have been more directly involved in the previous
alleged ‘‘harassment’’ played any significant role in Thorpe’s
decision to bar access to Snyder. This is because Thorpe had
admittedly issued instructions to Total earlier that morning to
bar Snyder from his preannounced planned visit to the site
even before Thorpe became aware of Snyder’s presence in
the company of agents from other unions.
It is speculative, moreover, for the Respondent’s counsel
to suggest that the ‘‘‘mass visit’ on October 15 would have
been disruptive.’’ Because of the Respondent’s blanket re-
fusal to permit jobsite access by any union agents, we will
never know what would have happened if access to some or
all of them had been granted.21 Moreover, if such a feared
‘‘disruption-by-mass-visit’’ accounted for Thorpe’s decision
to deny access to Snyder on October 15, one may reasonably
question why it was that the Respondent again denied access
to Snyder when Snyder appeared alone on November 20.
I further find pretext in Thorpe’s claim that he was con-
cerned about ‘‘insurance liability’’ if he were to permit Sny-
der or any other union agent to enter within the fenced job-
site. Wholly apart from the fact that the Union apparently
had its own insurance covering Snyder’s visits to construc-
tion sites, I recall [footnoot, supra] that such alleged ‘‘liabil-
ity’’ concerns had not prevented Thorpe from admittedly in-
viting certain unions to conduct picketing within the confines
of the perimeter fence months earlier, when Thorpe then had
found it in the Respondent’s interest to have such picketing
conducted ‘‘inside,’’ rather than at the outside ‘‘main en-
trance’’ where they had posted themselves until on or about
May 6.
Two other claims are inconclusively advanced by Thorpe
and/or the the Respondent’s counsel: First, Thorpe states he
was not personally aware of the ‘‘access’’ provisions in the
Union’s contracts with (or otherwise binding on) MacDonald
(or McBride, or DeaMore), because he had never asked for
those contracts and had never been furnished with copies. A
similar defensive claim was rejected in C. E. Wylie, supra,
on ‘‘constructive notice’’ grounds, where, as here, ‘‘[the re-
spondent] knew the subcontractors were unionized and
should have known of the contractual rights of the sub-
contractors’ employees.’’22 Second, the Respondent suggests
that it was adequate to Snyder’s visitational purpose on both
October 15 and November 20 that the Respondent permitted
MacDonald’s job foreman, Ward, to leave the site and talk
with Snyder outside the perimeter gate. Such ‘‘alternative ac-
cess’’ contentions have been repeatedly rejected by the
Board, essentially for the reasons stated by the judge in Villa
Avila, quoted earlier.23
Accordingly, I reach this conclusion of law: When, on Oc-
tober 15 and November 20, the Respondent refused to permit
the Union’s business representative, John Snyder, to enter the
VA Project jobsite to meet with employees of MacDonald,
the Respondent interfered with, restrained, and coerced em-
ployees in the exercise of the rights guaranteed them by Sec-
tion 7 of the Act, and by its admitted continuing refusal to
permit such access, the Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
C. Other Claims of the General Counsel Arguably
Going to the ‘‘Merits’’
I turn now to certain lingering claims of the General
Counsel, grounded in the complaint, which might be super-
fluous were it not for the General Counsel’s (and the Re-
spondent’s) arguments with respect to the appropriate remedy
here.
1. On behalf of ‘‘other unions’’
As I noted at the outset, the complaint alleges that the Re-
spondent violated Section 8(a)(1) on October 15 not only by
denying jobsite access to the Union’s representative, Snyder,
but also by denying access to representatives of ‘‘other
unions representing employees on the jobsite.’’ The General
Counsel presented no evidence that on October 15 any ‘‘em-
ployees . . . on the jobsite’’ were ‘‘represent[ed]’’ by any of
said ‘‘other unions.’’ Moreover, she offered no evidence con-
cerning the existence or nature of any contractual relationship
those ‘‘other unions’’ might have had with any subcontrac-
1125CDK CONTRACTING CO.
24 Indeed, the General Counsel has never specifically identified
which ‘‘other unions’’ the complaint might be referring to, and, on
brief, she does not specifically argue the merits of, or otherwise ad-
dress the claim on behalf of ‘‘other unions,’’ except in summary re-
medial prayer (Br. 12), which I do not adopt for reasons I explain
in the remedy section, infra.
25 ‘‘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 perform-
ance of their duties vis-a-vis these subcontractors who have contrac-
tually granted union business agents unrestricted access to the site.’’
26 Pars. 4(c) and (d) did not ‘‘describe’’ any ‘‘end result’’ of a
‘‘balancing’’ test; they alleged a contractual relationship between the
Respondent and Total, on the one hand, and the Union, on the other.
27 At the trial, I dismissed counts which unqualifiedly alleged that
the Respondent and Total were ‘‘bound’’ to ‘‘the access clause’’ in
the Columbia SMACNA Agreement. I never ruled on any such re-
vised, ‘‘as if’’ theory.
tors employing employees on the jobsite on October 15.24
Thus, the record is overall too scanty to enable a determina-
tion that the Respondent’s actions vis-a-vis those ‘‘other
unions’’ involved any violations of the Act, and I will there-
fore recommend dismissal of the complaint in this limited re-
spect.
2. The (already dismissed) complaint counts alleging
that the Respondent and Total are ‘‘bound’’ to the
access provisions in the Columbia SMACNA
Agreement; the General Counsel’s request that I
reverse this dismissal
On this record, there is no legal basis for claiming that ei-
ther the Respondent or its principal mechanical subcontrac-
tor, Total, are themselves ‘‘bound’’ to the visitation provi-
sions in the ‘‘local Agreement,’’ i.e., the Columbia
SMACNA Agreement, which bind MacDonald (and other
subcontractors, such as McBride and DeaMore). The point
needs to be emphasized only because both the original and
the amended complaints (at pars. 4(c) and (d)) literally allege
to the contrary, and the General Counsel continues to argue
in favor of those counts on brief, even though I dismissed
those counts as a matter of law at the conclusion of the Gen-
eral Counsel’s case-in-chief. Indeed, on brief, the General
Counsel requests that I ‘‘reverse [my] ruling granting Re-
spondent’s Motion to Dismiss these two paragraphs.’’ I de-
cline to do so.
This is the relevant background: Pertinently, paragraph 4
of the amended complaint alleges:
(c) By virtue of the [collective-bargaining] contract
with MacDonald-Miller . . . Total Mechanical, Inc. be-
came bound to the [‘‘visitation’’] provision in the Co-
lumbia SMACNA agreement.
(d) By virtue of the [subcontracting] contracts be-
tween Respondent . . . and McBride, DeaMore, and
Total Mechanical . . . Respondent . . . became bound
to the visitation clause in the Columbia SMACNA
Agreement . . . .
I first questioned the General Counsel’s position concern-
ing the allegations in paragraphs 4(c) and (d) during opening
colloquy, asking how it could be that either the Respondent
or its principal mechanical systems subcontractor, Total,
could be ‘‘bound’’ to any labor agreements that the other
named subcontractors (MacDonald, McBride, and DeaMore)
might have with the Union. At that point, counsel for the
General Counsel conceded vaguely that the complaint ‘‘is
perhaps overstated in that area,’’ but she declined to with-
draw those counts at that time, pending consultation with her
superiors. At the conclusion of her case-in-chief, following
such consultations, she again declined to withdraw those
counts, stating that, ‘‘basically my instructions are just to
leave it [i.e., pars. 4(c) and (d) of the complaint] in.’’ In sup-
port, she relied on the now-familiar passage from Villa Avila,
quoted earlier.25 Unpersuaded, I granted the Respondent’s
motion to dismiss those counts, stating on the record that the
Villa Avila language the General Counsel was relying on in
no way supported the notion that a general contractor be-
comes legally ‘‘bound’’ to the ‘‘visitation’’ provisions in
labor agreements between subcontractors and unions rep-
resenting the subcontractor’s employees simply by ‘‘invit-
ing’’ such subcontractors to the site. Rather the language in
question suggested only that when a subcontractor invited by
the general contractor to the jobsite has a ‘‘visitation’’ provi-
sion in its own contract with the union representing the sub-
contractor’s employees, this is a factor properly to be consid-
ered as part of a ‘‘balancing’’ of the general contractor’s
‘‘property’’ rights against the Section 7 rights of employees
to have access to their union representative. And, as I explain
below, my construction of Villa Avila on this point appears
to be fully supported by the Board’s comments in C. E.
Wylie, supra at fn. 3.
Arguing for ‘‘revers[al]’’ of my dismissal of paragraphs
4(c) and (d) in a footnote to her brief (at 11, fn. 2), the Gen-
eral Counsel confines herself to a single explanatory sentence
(added emphasis):
Paragraphs 4(c) and (d) in the Complaint describe the
end results of the balancing test—that CDK must grant
access the same as if they [sic] had been bound to the
access clause.
I am unpersuaded by this reformulation. First, it is clear
that the General Counsel, under the pretense of ‘‘clarifying’’
the counts in question, has in fact amended them, sub
silentio,26 and under the guise of seeking a ‘‘revers[al]’’ of
my trial ruling, the General Counsel is really asking me to
rule on a different set of allegations than the ones I dis-
missed.27 But even if the complaint had plainly stated such
an ‘‘as if’’ theory, I would have ruled no differently. For it
appears that the General Counsel has merely used new words
to advance essentially the same underlying claim—that the
access provisions in the Columbia SMACNA Agreement
somehow define and fully delimit the scope of the Respond-
ent’s own rights to control access to the VA Project, and to
that extent, those access provisions ‘‘bind’’ the Respondent.
But I see no warrant in Villa Avila and progeny for the no-
tion that the Respondent and/or Total may be treated ‘‘as if’’
they were ‘‘bound’’ to the ‘‘access clause’’ in the Columbia
SMACNA Agreement. The simple legal fact is that they are
not ‘‘bound’’ to any such ‘‘access clause.’’ Neither was the
‘‘access clause’’ in the subcontractors’ labor agreements
treated by the Board as the touchstone by which to define
the scope and extent of the the general contractors’ rights of
1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 Here and in all other cases where I have spoken of a union’s
‘‘rights’’ to access, I recognize that the the ‘‘rights’’ in question are
‘‘derivative,’’ i.e., that they really trace or derive from the rights of
employees under Sec. 7 of the Act.
29 See, in this respect, the Ninth Circuit’s critical comments (934
F.2d at 236-238) with respect to the Board’s ‘‘or any other labor or-
ganization’’ provision in its remedial order in C.E. Wylie, supra.
30 I observe in this regard that the General Counsel has not made
any record which would permit a finding that the Respondent is like-
ly to commit similar violations at other jobsites at which it might
in the future be the general contractor. And see NLRB v. C. E. Wylie
Construction Co., supra, 934 F.2d at 238.
limiting access to the jobsites in Villa Avila, or its progeny.
The Board could not have made this more clear when it said
in C.E. Wylie, supra at footnote 3 (added emphasis):
The contracts giving the Unions access are not with
the Respondent but, [sic] with its subcontractors. Thus,
standing alone, the contracts are not dispositive of the
issues . . . . The same conclusion holds true with re-
spect to the issues posed in Villa Avila. . . . Thus, in
Villa Avila, the significance of the contracts was the en-
hancement their access provisions imparted to the Sec-
tion 7 rights involved in weighing those rights against
the respondents’ property rights.
Accordingly, I adhere to my dismissal of complaint para-
graphs 4(c) and (d), including insofar as the General Counsel
contends that the Respondent or Total may be treated ‘‘as
if’’ they were ‘‘bound’’ to the access provisions of the Co-
lumbia SMACNA Agreement.
THE REMEDY
This is the General Counsel’s remedial prayer (added em-
phasis):
Accordingly, it is urged that the Administrative Law
Judge issue an order requiring Respondent to cease and
desist from denying access to Local 16, and other
unions representing employees on Respondent’s jobsite,
when access is sought for legitimate union business, in-
cluding, but not limited to, safety inspections.
This is the Respondent’s ‘‘alternate position’’ with respect
to any remedial order, should I find that it violated the Act:
(1) Access should be allowed only union agents hav-
ing contracts with subcontractors who are present and
working at the jobsite.
(2) [The Respondent] should be allowed to promul-
gate reasonable rules concerning access to the jobsite.
(3) All visitors should be required to check in with
[the Respondent] and state the purpose of their visit.
(4) [The Respondent] should be allowed to provide
an escort for any visitor to the project . . . .
Largely for reasons I have already discussed, I cannot
fully embrace either of the parties’ positions as to remedy,
but I recognize both parties’ common need, implicit in the
specifics of each party’s remedial suggestions, for an order
of sufficient specificity to provide the Union and the Re-
spondent with practical guidance in their future conduct, and
to provide the General Counsel’s office with a practical
means for measuring the lawfulness of any future conduct by
the Respondent which may be challenged as a violation of
the order.
First, as to the ‘‘other unions’’ language sought by the
General Counsel, I will not include such a provision, where
this litigation permits me to find only that, on balance, in the
unique circumstances shown to exist in this case, the Charg-
ing Party Union’s rights28 to access to MacDonald’s employ-
ees outweighed the Respondent’s claimed property rights.29
But as I explain further below, my Order will prevent the
Respondent from in any ‘‘like or related manner’’ interfering
with, restraining, or coercing ‘‘employees’’ in the exercise of
their Section 7 rights, and this language is adequate to meas-
ure the lawfulness of any future conduct of the Respondent
is alleged to violate the Order.
Second, I note that the General Counsel seeks an Order re-
quiring the Respondent to grant union access to the ‘‘job-
site’’ (presumably limited to the VA Project, which is how
I construe it)30 for any ‘‘legitimate union business.’’ I am
not disposed to couch the Order in such terms because such
language is potentially overbroad, in that it conceivably ap-
plies to situations where a quite different ‘‘balance’’ might
be struck. For example, it cannot be gainsaid that it is ‘‘le-
gitimate union business’’ for a union to attempt to make
‘‘organizing’’ contacts with currently unrepresented groups
of employees, but, in the light of the Court’s recent holding
in Lechmere, supra, it is arguably unlikely, except in the case
of ‘‘remote’’ jobsites, that the Section 7 interests of such un-
represented employees in having jobsite contacts with a
union agent would be held to outweigh the jobsite owner’s
property interest in preventing nonemployees from entering
the jobsite. Thus, my Order limits itself to situations in
which the Union seeks access to employees the Union cur-
rently represents.
A separate question lurks in the General Counsel’s pro-
posed order, even if it were construed as being limited to sit-
uations where the union currently represents the employees
to whom it seeks access. Implicitly, the General Counsel’s
proposed Order would not confine itself to situations where,
as here, the employees to whom the Union seeks access are
working under a labor agreement which grants the Union the
right of access to them on the jobsite. This raises the ques-
tion whether such access provisions in a subcontractor’s
labor agreement are a sine qua non to a finding of a viola-
tion here or in other cases of this type. It is arguable that
the Villa Avila line of cases turned in each case on the exist-
ence of such access provisions in subcontractors’ labor
agreements with the union seeking access. And my attention
has been called to no cases in which, absent such contractual
access provisions, the Board has found a statutory right of
access. But the Ninth Circuit’s enforcing opinion in C. E.
Wylie, supra, construed at least the Wylie holding more
broadly, noting that the Board’s Wylie decision ‘‘did not ac-
cord ‘decisive weight’ to the CBA provisions requiring job-
site access,’’ and finding it ‘‘probable that in rejecting Wy-
lie’s proposed limitation, the NLRB implicitly decided that
in future cases involving the absence of access provisions the
balance would still tip in favor of the unions.’’ 934 F.2d at
239 (added emphasis). Accordingly, the Ninth Circuit re-
jected Wylie’s appeal insofar as it sought a narrower order,
1127CDK CONTRACTING CO.
31 It is true that in Villa Avila and progeny, a variety of elements
favoring access were recited which were arguably independent of the
existence of access provisions in labor agreements between the sub-
contractors and the unions seeking access. (E.g., the ‘‘general’’ rea-
sons invoked by the judge in Villa Avila, quoted supra, concerning
the vagaries of the construction industry, and the constantly shifting
‘‘safety’’ and other conditions under which employees labor, and the
obstacles to effective union representation of construction workers
and to the unions’ ‘‘policing’’ of labor agreements if the unions are
not permitted to enter jobsites where those workers are employed.
But as I have earlier noted, Villa Avila and progeny all have in com-
mon that they place great emphasis on the ‘‘infer[ence]’’ of
‘‘submi[ssion]’’ of the general contractors’ property rights to be
drawn where, as in all those cases, the general contractor had ‘‘in-
vited’’ unionized subcontractors onto the jobsite who themselves
were bound to union contracts containing access provisions. And this
supports the inference that such access provisions were, indeed, a
sine qua non to the striking of the balance in favor of union access
in each of those cases. But where this case arises in the ninth judi-
cial circuit, and the Ninth Circuit has construed the Board’s holding
more broadly, and the Board has not to my knowledge disavowed
the Ninth Circuit’s broader view, I believe it more appropriate to fol-
low the Circuit’s reasoning, unless and until the Board clearly holds
otherwise.
32 See, in this regard, C. E. Wylie, supra at fn. 2.; Mayer Group,
supra at fn. 5.
33 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
confined only to situations involving right of access provi-
sions in a subcontractor’s labor agreement. Ibid. The Ninth
Circuit’s construction of the Board’s Wylie holding is entitled
to deference, even if I were otherwise inclined to view it as
being more narrowly limited to situations involving access
provisions in a subcontractor’s labor agreement.31 Accord-
ingly, my order does not confine itself to situations of the
latter type.’’
Finally, as to the General Counsel’s remedial prayer, my
Order will include a conventional provision requiring the Re-
spondent to cease and desist from any ‘‘like or related con-
duct’’ which tends to interfere with, restrain, or coerce ‘‘em-
ployees’’ (without restriction as to trade or craft or identity
of their employer) in the exercise of Section 7 rights. And
I think this not only adequately addresses the violation herein
but adequately addresses as well the General Counsel’s le-
gitimate concern that the Respondent be prevented from tak-
ing actions in similar situations involving ‘‘other unions,’’
without suggesting that the ‘‘other unions’’ herein enjoyed
the same standing as the Charging Party Union was shown
to occupy.
As to the Respondent’s own proposed remedy, I believe
that my Order is likewise adequately responsive to the Re-
spondent’s legitimate ‘‘property’’ protection interests. It re-
quires the Respondent to grant jobsite access to the Union
to employees it represents, but I specifically provide that this
Order be understood as being without prejudice to the Re-
spondent’s right to impose ‘‘reasonable’’ and ‘‘nondiscrim-
inatory’’ conditions pertaining to nonemployee access gen-
erally, so long as they are consistent with the conditions, ‘‘if
any,’’ which it had maintained in effect before October 15
pertaining to such nonemployee access, and so long as those
conditions do not operate to bar union access to represented
employees whose terms and conditions of employment by a
subcontractor include the right of such union access on the
subcontractor’s jobsite.
Except as just noted, however, I decline to authorize the
Respondent to impose the specific conditions on access it has
set forth on brief. It would be at least premature to permit
the Respondent to impose such suggested ‘‘rules,’’ given the
absence of any clear proof in this record concerning what,
if any, conditions the Respondent may have imposed on non-
employee jobsite access before October 15. If its only
‘‘rules’’ before October 15 simply required nonemployee
‘‘visitors’’ to the site to ‘‘sign-in’’ at the guard shack at the
main gate and to identify which subcontractor or employees
the visitor intended to visit with, then clearly it would in-
volve impermissible discrimination for the Respondent now
to engraft ‘‘special’’ rules for access by union officials.
Moreover, I am especially disinclined to authorize the Re-
spondent to impose an ‘‘escort’’ requirement on ‘‘visits’’ by
union representatives, even if, prior to October 15, the Re-
spondent may have generally required visitors to enter only
with such an ‘‘escort.’’ This is because it would plainly in-
trude on the free exercise of Section 7 rights to permit the
Respondent to have an agent follow and monitor a union rep-
resentative’s communications with employees. Where intru-
sion on Section 7 rights is thus manifest, the intrusion cannot
be justified except on a special showing that it is necessary
to the vindication of the Respondent’s (or the VA’s) legiti-
mate property interests; and the Respondent made no such
special showing here.32
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended33
ORDER
The Respondent, CDK Contracting Company, a subsidiary
of FK Group, Inc., Vancouver, Washington, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to permit the Sheetmetal Workers Inter-
national Association, Local Union No. 16, AFL-CIO to enter
its VA Project jobsite for the purpose of communicating with
employees of subcontractors whom it currently represents.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of Section 7
rights.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On the Union’s request, permit it to enter the VA
Project jobsite to communicate with employees it currently
represents; provided, however, that nothing here shall be
construed as preventing the Respondent from applying any
reasonable and nondiscriminatory conditions pertaining to
nonemployee access generally which the Respondent may
have applied before October 15, 1991; provided further,
however, that the Respondent may not require the Union to
be accompanied by a Respondent-designated ‘‘escort,’’ dur-
ing any such communications with employees it currently
represents.
(b) Post at its VA Project offices in Vancouver, Washing-
ton, and at any other locations on the VA Project jobsite
where employees represented by the Union are currently
1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
working, copies of the attached notice marked ‘‘Appen-
dix.’’34 Copies of the notice, on forms provided by the Re-
gional Director for Region 19, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(c) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by Macdonald-Miller, Inc.,
DeaMore Associates, Inc., and McBride Sheet Metal, Inc., if
willing, at all places where notices to employees are cus-
tomarily posted.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.