Wolgast Corporation v. National Labor Relations Board

*This decision was originally issued as an “unpublished decision”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

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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 agreed-
upon benefits of that representation may be fully
implemented. The judge ordered Wolgast to allow Local 706
access to Acoustical employees when requested, subject to

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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

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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

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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 nonemployee union
representatives urging shoppers not to patronize a store hiring
10 Wolgast Corp. v. NLRB Nos. 01-1904/2056
1W olgast 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 Windem uller’s reasoning, however, inso far 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 Rep ublic Aviation. See Meijer Inc. v. NLRB, 130 F.3d 1209, 1217
(6th Cir. 1997) (holding that under the balancing test in Rep ublic
Aviation, 324 U.S. 793 (1945), “employees have a right to we ar 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

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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.

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