Villa Avila

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Villa Avila and Cement Masons Local Union No. 627, Operative Plasterers and Cement Masons International Association, AFL-CIO Palm Springs Sun Dial and Laborers Local Union 1184, Laborers' International Union of North America, AFL-CIO Tom Sawyer Construction Co. and Laborers Local Union 1184, Laborers' International Union of North America, AFL-CIO. Cases 21-CA- 18066, 21-CA-18114, and 21-CA-18142 October 16, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MtEMBtERS JENKINS AND PENELL.O On July 17,, 1980, Administrative Law Judge Gerald A. Wacknov issued the attached Decision in this proceeding. Thereafter, Respondents filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respond- ents, Villa Avila, Pico Rivera, California; Palm Springs Sun Dial, Palm Springs, California; Tom Sawyer Construction Co., Rancho Mirage, Califor- nia, their officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, as so modified: Insert the following as paragraph l(c): "(c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ' ResFpndent has excepted to certain credibility findings made by he Administrative Law Judge. It is the Board's established policy not rto overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wull Products. Inc.. 91 NLRB 544 (195(1). enfd 188 F2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing his findings 2 The Administrative Law Judge inadvertently omitted from his rec- ommended Order a provision enjoining Respondents from in any like or related manner interfering with employees' Sec 7 rights. although he in- cluded such language in the posting notice e hall modif, his recom- mended Order accordingly ercise of the rights guaranteed them in Section 7 of the Act." DECISON GRAI I) A. WACKNOV, Administrative Law Judge: Pursuant to notice, a hearing with respect to this matter was held before me in Los Angeles, California, on Janu- ary 24 and 25, 1980. The original charge in Case 21-CA- 18066 was filed by Cement Masons Local Union No. 627, Operative Plasterers and Cement Masons Interna- tional Association, AFL-CIO (herein called Cement Masons Local 627) on August 6, 1979.1 This charge, amended on September 24, alleges 8(a)(1) violations of the National Labor Relations Act, as amended (herein called the Act), by Villa Avila. The charges in Cases 21- CA-18114 and 21-CA-18142 were filed by Laborers Local Union 1184, Laborers' International Union of North America, AFL-CIO (herein called Laborers Local 1184), on August 21 and 30, and allege 8(a)(1) vio- lations of the Act by Palm Springs Sun Dial and Tom Sawyer Construction Company, respectively. 2 Thereaf- ter, on November 26, the Regional Director for Region 21 of the National Labor Relations Board (herein called the Board) issued an order consolidating cases, consoli- dated complaint, and notice of hearing in the captioned matters. Respondents deny the commission of any unfair labor practices. The parties were afforded a full opportunity to be heard, to call, examine and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs have been received from the General Counsel and counsel for Respondents. Counsel for La- borers Local 1184 submitted a statement of position. Upon the entire record and based upon my observa- tion of the witnesses and consideration of the briefs and statement submitted, I make the following: FIN)INGS OF FACT 1. JURISDICTION Respondents Villa Avila, Palm Springs Sun Dial, and Tom Sawyer Construction Company are general con- tractors engaged in the building and construction indus- try with principal places of business located in Southern California. Each Respondent annually purchases and re- ceives goods and products valued in excess of $50,000 from suppliers located within the State of California, which suppliers, in turn, purchase these same goods and products directly from suppliers located outside the State of California. Each Respondent admits, and I find that it is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. I All dates or time periods herein are within 1979 unless stated to be otherwise 2 The charge against Palm Springs Sun Dial was amended on August 28 253 NLRB No. 10 76 Vll A AVILA II. THE .AHBOR OR(iNIZATIONS INVOI VIID) It is admitted, and I find, that Cement Masons L.ocal 627 and Laborers Local 1184 are labor organizations within the meaning of Section 2(5) of the Act. ItL. IHI UNFI-AIR I ABOR PR\CI IC S A. Issue The principal issue raised by the pleadings is whether, or the extent to which, general contractors may refuse to permit union business representatives access to construe- tion sites for the purpose of ser vicing subcontractors' en- ployees. B. acts I. Villa Avila Villa Avila is the general contractor on a condomin- ium project in Pico Rivera, California. Van Mor Con- crete Contractors is the concrete subcontractor on this project. About mid-July, Plumbers Local 78. not a party to this proceeding, commenced picketing at the project in furtherance of a primary dispute with the plumbing subcontractor at the site, and the job was completely shut down for a 2-week period. Reserved gates were es- tablished and, according to witnesses for the general con- tractor, no-trespassing signs, bearing the following legend, were placed around the project: NO TRESPASSING STOP-REAI) WARNING-ENTERING THIS PROPERTY WITHOUI PERMISSION WILL BE CONSIDERED TRESPASSIN(;- SUBJECT TO ARREST. AUTHORIZED EMPLOYERS ANt) THEIR EMPLOYEES ARE EXEMPT. AL. OTHERS CHECK IN AT OFFICE AND BE ACCOMPANIED BY AN AGENT OF THE OWNER. On August 10, the Regional Director approved a set- tlement agreement whereby Plumbers Local 78 agreed to discontinue picketing at the gate reserved for secondary employers and their suppliers, and further agreed to dis- continue any other unlawful activity directed against sec- ondary employers or their employees. Alfred Nieto is a field representative for Cement Masons Local 627. In late July, Nieto visited the jobsite:" and was talking to an employee of Van Mor Concrete Contractors, a subcontractor with which Cement Masons had a short form agreement. This short form agreement adopts the language of the Master Labor Agreement, which states, inter alia: "The union business agent or spe- cial representative shall have access to the project during working hours and shall make every reasonable effort to advise the Contractor or his representative of his pres- ence on the project." While on the jobsite, Nieto was approached by repre- sentatives of Villa Avila, the general contractor, namely Project Manager Titus Tiberi, and Joseph Mulley, a part- ner. Villa Avila has no collective-bargaining relationship ' icketing bh the I'lumbers as occurring at this time with any labor organization. Tiheri told Nieto to get off the joh or he would call the sheriff, ]Thereupon. Nicto left the obsite and called the Union's attorney who, on Atugust i, sent the following telegram to the general con- rac tor: ON Y(OUR JOB S At' 4312 ROSIMA NN Vt)., P'(O- RIVIt R , 50 \RI IN I l RIF RIN(G II11 f I \ A'li I R(tll IS 0 ( I NII-NI MSONS I 1I I NI()N No. 27 1o SI 'IR II IlS M.NIEMHlRS, C 1I N I t SSONS IM- PI (1 tI IN V N NMOR, FY II FI\ I I NING ODII) 'I INJI RH \NI) I \N S I OR( I RISt'\SS. SI( I (N 551.2 [SI(] )t ItI ( \I 11 ()RNIS P1 N x1 ()OD I'-R 1 IS I N I Rt I I(N POSI I 1) PROP.R I I OR I W5I t I L N(O)N .\( I 1\ 11 4 INII II RI Nt I It OR(; NIIN( RI(LHfs lIOIt I IS SICIONS 8 A)(1) NI) 8(3) (ot I lt N \ I()ONI I HABOR RHII \I()NS A( I. ((N NI\CI lilt LNIt)IRSI(NINI) \ 38-8125 151MI-I)I- t11 1 It) ARRAN(I- OR P ,\ I IUI ENI R UPl ON IHII JOl S t.... The general contractor sent the following reply tele- gram to the Union on August: IN RH : I RI N('I IO OUR III ADVISEI), (iROUtNI)I SS, I GAl I R FRI O 1 AiGUS 1, 1979, '1 LAS- I .D- VlSII) TIIHI IHI ONLY \WAY tO() OIAIN CCISS 0O OUR JOB SIIt IN PICO RIVERA 'tll.l HB I OR -\ I.I- GIIIMATII I AI. REASON, YOUR IFHRItAIS or I.AW- SUIIS WON I CUI II. WE ARE IN NO M100) O P.AN YOUR (AMIS. A RHE(UIST SUPPOR IED) BY EVIDENCE 01 A ItI t IMAiIL NATURI WVII.I. PROMP'T OUR CON- SIDIRATION 01- YOUR RQUESI FOR ACCESS ON OUR JOB Sll'. YOUR ATTlEMPI 10 PROMOTE A SYMPATH-Y SIRIKI. AMONG OUR UNION SUBCONTRACTORS WII.I NOT BE TOt ERATED. YOUR POSITION AS AN OFFICER 01 THE COURT SHOULD BE PROTECTED IN PERSUIT [sic] OF- EIHICStL MA rrRS. Nieto returned to the jobsite on August 6, in order to service the employees of Van Mor Concrete Contrac- tors, who were pouring concrete slabs for the first time, and who continued to work despite the picketing by Plumbers Local 78 on that day. Nieto testified that he approached Tiberi and advised him that he wanted to check compliance with the con- tract between Cement Masons and Van Mor. Tiberi re- fused to allow Nieto access to the project, but said that he would send the employees to the curbside, one by Sec 552 1 of the California Penal Code specifies certain c ccp ion, tI the crime f trespass, and prosides as folloss This article does not prohibil (a) Anl la. ful acHity fior he purpose of engaging in any orgalilla tilial effortl n hbehalf (or an, labor union, agent. or member Iherel'. or of ;ll) emptloyee group,. or any member therelof, employed or for- merly employed in any place lf business or manufacturing establish- mclll de,,cribed in this article. or for the purpose of carrsitg on the I;afill atiltilCoe o labor Unililns. o1 members thereof (h) A, ;la, Ifl allo,us for the purpose of iengatitn I tite .Ilfct 5 of 's0rkillg onditills i posteld priprt b. a represcratiti of a labor ill(loi ilr totherl CploCee glrmp .hio ha. upon i'i person t( r!t tel c,,idellc o dile anuhorl,a.tin hi, his labor union or emplo,ee grourp ii ake skh irslctiga tioi DECISIONS OF NATIONAL LABOR RELATIONS BOARD one, to speak with Nieto. Nieto would not agree to this procedure, and Tiberi told him to leave the site. Tiberi also phoned the sheriff who apparently came to the job- site and advised Nieto that he would have to leave. The pour was completed without interruption. Nieto has not returned to the site since that day. Mulley credibly testified, without contradiction, that due to a bulk concrete strike Villa Avila had been unable to purchase concrete for a period of time but was able to locate concrete at a premium price, which concrete was being poured when Nieto entered the jobsite on August 6. Both Mulley and Tiberi testified that on August 6 Nieto did not approach either of them to ask for permis- sion to speak with Van Mor's representatives or employ- ees. Rather, Nieto went directly to one of Van Mor's foremen and commenced to speak with him, at which time Tiberi and Mulley requested Nieto to leave the site and advised him that he could speak with Van Mor's foremen outside the gate. Mulley testified that he be- lieved Nieto's purpose for coming on the site was to pull the men off the job in furtherance of the dispute between Plumbers Local 78 and the plumbing subcontractor. 2. Palm Springs Sun Dial Kenneth Bell is a field representative and organizer for Laborers Local 1184. Between June I and August 20 he had gone to a particular jobsite in Palm Springs on var- ious occasions, usually once a week, to service certain employees of the masonry subcontractor on the job, J. P. Construction Company, an employer under contract with the Union. The "Short Form Agreement" between Laborers Local 1184 and J. P. Construction Company contains the following provision: "Right to Visit Jobs: The business representative shall be allowed n any job where or when workmen in his jurisdiction are at work." Bell had met Curtis Frame, one of the principals of Palm Springs Sun Dial, the project's general contractor, during his prior visits to the site and, in accordance with his customary practice, Bell attempted to contact Frame or another representative of the general contractor each time he visited the site for the purpose of servicing unit employees of J. P. Construction Company. Laborers Local 1184 has no collective-bargaining relationship with Palm Springs Sun Dial, a nonunion employer. About the end of July, Carpenters Local 1046, not a party to this proceeding, commenced picketing Palm Springs Sun Dial at the aforementioned jobsite in fur- therance of a primary dispute with that contractor. Thereupon, Frame established separate gates for his own employees and those of the subcontractors on the job, and caused several no-trespassing signs to be posted on the project.5 The picketing by Carpenters Local 1046 continued in- termittently, and it appears that employees of J. P. Con- struction Company and other subcontractors refused to work on several occasions. The record shows that on August 20, Palm Springs Sun Dial executed a settlement agreement, approved by the Regional Director on 5 The signs were identical to those pnoted by Respondent Villa Avila, Iupro. August 24, whereby Carpenters Local 1046 agreed to discontinue picketing the project at gates reserved for contractors other than Palm Springs Sun Dial, or other- wise engaging in unlawful activity directed against sec- ondary employers or their employees. Despite the wording of the aforementioned no-tres- passing sign, Bell had apparently been permitted by Frame or another representative of the general contrac- tor to service the employees of J. P. Construction Com- pany, between the dates of July 30 and August 20, with- out being accompanied by an agent of the owner. On August 20, Bell entered the jobsite along with John Smith, an official of Laborers Local 1184, and Dan Sanders, another business representative of the same union. Bell introduced Smith and Sanders to Frame, and advised Frame that he intended to visit some unit em- ployees on the jobsite. Frame told the union representa- tives to leave the site, and told Bell that he would be ar- rested if he approached any employees. Bell replied that he was there to perform his job and proceeded to talk with several members regarding union matters, speaking to one member about insurance coverage, and several other members about the nature of some scaffolding which presented a safety problem. Thereafter, Bell re- turned to the car where Smith and Sanders were wait- ing, and was advised by police officers who had been summoned by Frame that Frame wanted to have the representatives arrested for trespassing. However, no ar- rests were made. Before leaving, Bell advised Frame that it would be necessary for him to continue coming back to the job to service his people and inquired what Frame intended to do. Frame said he would have Bell arrested on the next occasion. As a result of Frame's conduct, Bell caused a picket line to be established on the next day, August 21. The picket signs stated, "Curtis Frame guilty unfair labor practices. Laborers Local 1184." Apparently, there was no work stoppage by employees of any contractor on the job as a result of such picketing. Bell returned to the jobsite on August 22, during the continuation of the aforementioned picketing. Upon en- tering the jobsite, Bell went to the office to advise Frame or a superintendent of his presence and the office secretary indicated that Frame was outside. Bell then ap- proached Frame and the superintendent, who were to- gether, and advised Frame that he was on the job "to service my contract and my people," and had some mat- ters to take care of. Frame told Bell to get off the jobsite and exclaimed that he intended to have Bell arrested, to which remark Bell replied that he would leave when his work was completed. Thereupon, Frame told his super- intendent to get a camera, follow Bell, and take pictures of Bell's activity while Frame went to the office to call the police. Bell drove to the area of the site where unit employees were working. He proceeded to check the scaffolding and, as he was giving certain insurance papers to an em- ployee, another superintendent for the general contractor approached to within a few feet of Bell and the employ- ee and began taking pictures of them. Bell approached the individual, who said his name was Mike Deana, and 78 VILLA AVILA asked what he was doing. Deana acknowledged that he had been told to follow Bell and take pictures and stated that Frame had called the police to have Bell arrested. Bell said he would wait for the police officer outside the project. The police officer arrived and, after speaking to Frame, then stated to Bell that he felt the law did not require or permit an arrest under the circumstances, adding that Frame did not choose to make a citizen's arrest. Bell has not returned to the site since that date, testifying that he did not want to continue to be har- rassed and subjected to such treatment. 3. Tom Sawyer Construction Company Tom Sawyer Construction Company is the general contractor on a project in Rancho Mirage, California. As a result of picketing by Laborers Local 1184 in further- ance of a primary dispute with a subcontractor on the job, Tom Sawyer Construction Company entered into a settlement agreement with Laborers Local 1184, ap- proved by the Regional Director on May 15, wherein the Union agreed to refrain from unlawful secondary ac- tivity including picketing. Another settlement agreement between the same parties was approved by the Regional Director on August 14, 1979, the Union agreeing not to picket or threaten to picket another subcontractor on the job for the purpose of forcing or requiring the subcotl- tractor to recognize, bargain, or enter into a collective- bargaining agreement with the Union. Further, on August 30, the Regional Director issued a complaint against Laborers Local 1184 alleging that between the dates of August and 8, the Union engaged in unlawful secondary picketing at the jobsite in furtherance of a pri- mary dispute with a subcontractor. This matter was set for hearing in March 1980, and was thereafter also set- tled. Jesse Stinson, a field agent for Laborers Local 1184, had been in charge of coordinating the picketing by that Union throughout the times material herein. He had vis- ited the jobsite on about five occasions for the purpose of servicing the employees of various contractors em- ploying laborers and having contracts with the Union. These contracts contain a clause stating that "the busi- ness representative shall be allowed on any job where or when workmen in his jurisdiction are at work." Stinson entered the jobsite without incident in about mid-July, subsequent to the time no-trespassing signs had been erected. 6 However, sometime thereafter, while Stinson was on the picket line, Lonnie Tackett, superin- tendent for the general contractor, hollered at him stat- ing that if Stinson ever came on the job Tackett would have him arrested. 7 On August 21, Stinson entered the jobsite through the neutral gate and drove around the project looking for unit employees. 8 As he started to leave, there being no unit employees on the job, he observed that the gate had I These signs were also identical to the signs posted by Respondent Villa Avila, supra 'Tackell denied that he ever made such a statement to Stinson. Stinson testified that there were customarily between 6 to 15 laborers on the site working for various contractors having agreements with the Union. been blocked by vehicles. He drove to the construction trailer and asked Tackett what he was trying to do, stat- ing that he had already checked the job and was ready to leave as none of his people were there. Tackett re- plied that Stinson was not going anywhere, and that he had called the sheriff to have Stinson arrested. The sher- iff arrived 10 or 15 minutes later and said that Tackeltt was placing Stinson under a citizen's arrest. The sheriff handed him a citation and stated that he would have to appear in court. C. Analysis and Conclusions Each of the three nonunion general contractors, Re- spondents herein, upon the advice of the same labor con- sultant, established similar reserve gates and set up iden- tical no-trespassing signs in order to attempt to counter- act the effect of common-situs picketing by various labor organizations. As succinctly stated by the counsel for each of Respondents, in his brief, these precautions were taken "to stop employees from being unlawfully induced to walk off the job, and to prevent vandalism and vio- lence." It is clear that prior to the labor disputes which precipitated this action by Respondents, the business rep- resentatives of the Unions herein had not been, or would not have been, denied access to the jobsites. Subsequent to about the end of August, it appears that the labor disputes at each of the jobsites had been re- solved, or at least that the disputes had entered into a period of quiescence, and that the picketing had ceased. Thereafter, so far as the record shows, no union repre- sentatives involved herein made any further attempt to enter any of the jobsites for the purpose of policing con- tracts and servicing employees. In Scott Hudgens v. N.L.R.B., 424 U.S. 507, 522 (1976), the Supreme Court, citing N.L.R.B. v. The Babcock & Wilcox Company,9 stated: The Babcock & Wilcox opinion established the basic objective under the Act: accommodation of § 7 rights and private property rights "with as little destruction of one as is consistent with the mainte- nance of the other."'2 The locus of that accommo- dation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance. See N.L.R.B. v. Babcock & Wilcox, supra at 112; cf. N.L.R.B. v. Erie Resistor Corp., supra at 235-236; N.L.R.B. v. Truckdrivers Union, 353 U.S. 87, 97. "The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board." N.L.R.B. v. Weingarren. Inc., 420 U.S. 251, 266. 12 351 U.S. at 112. This language was explicitly reaffirmed as stating "the guiding principle" in Central Hardware Co. v. N.L.R.B.. 407 U S. 539. 544. 9 351 U.S. 105 (1965) 79 I)CISI()NS ()OF NATIONAL. I.ABOR REI.ATIONS BOARD Babcock & Wilcox involved an employer's refusal to permit distribution of union literature by noneniploye organizers on company owned parking lots. Customarily, as abundantly pointed out by counsel for the Respond- ents herein, the balance is struck in such or similar situa- tions in favor of an employer's right to prohibit such nonemployee organizational activity. See Sears Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 205 (1978); Monogram Models, Inc., 192 NLRB 705 (1971): N.L.R.B. v. Taninent. Inc., 451 F.2d 794 (3d Cir. 1971). Scott Hudgens, a case remanded to the Board by the court, involves a lessor's refusal to permit economic picketing by employees of a lessee in front of the lessee's store located in an enclosed mall owned by the lessor. Upon applying the balancing test enunciated by the court, the Board, in its Second Supplemental Decision in Scott Hudgens, °0 determined that, under the circum- stances, the Section 7 activity, namely, the union's right to communicate with both the buying public and with those employees of the lessee who elected to refrain from honoring the picket line, outweighed the lessor's private property rights. Significantly, the Board stated, "In leasing the shops to the merchants, Hudgens [the lessor] necessarily submitted his own property rights to whatever activity, lawful and protected by the Act, might be conducted against the merchants had they owned, instead of leased, the premises." See also Frank Visceglia and Vincent Visceglia, /a Peddie Buildings, 203 NLRB 265 (1973), enforcement denied 498 F.2d 43 (3d Cir. 1974). And in a similar case, Seattle-IFirst National Bank, 243 NLRB 898 (1979), the Board recently applied the ration- ale of Scott Hudgens and found that the private property interests of an office building owner must yeld to the Section 7 right of a union to engage in economic picket- ing, in support of contract demands directed against a lessee, conducted by union members who were not em- ployees of the lessee. Respondents herein do not deny that employees' Sec- tion 7 rights protected by the Act include the right to receive the various services of union business agents which services are necessary to police existing collec- tive-bargaining agreements or to negotiate new agree- ments. See Fafnir Bearing Co., 146 NLRB 1582, 1585 (1964), enfd. 362 F.2d 716 (2d Cir. 1968); 'riangle Plas- tics, Inc., 191 NLRB 347 (1971). Rather, Respondents maintain that union-represented employees of subcon- tractors can reasonably communicate with their business representatives and obtain such services in a manner which will compromise only slightly the right of the general contractors to control access to the jobsites in- volved herein. Essentially, Respondents suggest that much of the necessary communication and business be- tween employees and their union representatives may be conducted off the jobsite. Further, Respondents state that when access to the jobsite by a business representa- tive is imperative, for example, to inspect a reported safety violation, Respondent would willingly escort the agent around the site for the purpose of conducting an "' 230 NLRH 414 (19771 inestigation. In this manner, according to Respondents' brief, union business agents would have access to private property to the "extent needed to respect legitimate §7 rights." This latter procedure suggested by Respondents appears consistent with the language on the aforemen- tioned no-trespassing signs, which establish the require- ment that union representatives check in at the office of the general contractor and be accompanied by an agent of the owner. As a practical matter, what Respondents suggest is that as a condition precedent to permitting union repre- sentatives access to the jobsite, the business agent must report to the general contractor, state the nature of his business at the jobsite with sufficient particularity to sat- isfy the general contractor that the matter cannot be han- dled off the premises and, if these conditions are met, the business agent must wait until a representative of the general contractor is available to accompany the business agent to the area where he may conduct his stated busi- ness. Moreover, it appears that Respondents would have the escort remain with and observe the business repre- sentative until his work is completed. Thus, Respondents would be willing to forego to a circumscribed degree whatever property rights they possess as general con- tractors, in exchange for permission to engage in surveil- lance of union activity to the extent necessary to insure that such activity is legitimate. Respondents' stated reason for concern is the potential for abuse which is inherent in union-representative access to the jobsite, particularly during labor disputes. Thus, Respondents point out that union representatives may engage in unlawful conduct by causing secondary boy- cott activity, that labor disputes have not infrequently re- sulted in vandalism, violence, and arson, and that the possibility of such conduct is a legitimate reason for ex- cluding union representatives and other individuals from the jobsite or, if necessary, for escorting them while on the site. The General Counsel does not contend that Respond- ents herein may not institute and enforce reasonable rules to safeguard their property interests. Without purporting to delimit the parameters of such permissible rules, it does not appear unreasonable to establish the procedure of requiring union representatives to notify the general contractor of their presence on the jobsite,' l or perhaps even of the general locus and nature of their business on the site such as, for example, to service certain employ- ees, investigate potential safety violations, check contract compliance, resolve grievances, or perform a combina- tion of these or other duties. Should a business repre- sentative's prior conduct, however, reveal that the stated purpose is pretextual and is designed to gain access to the site for an unlawful reason, Respondents would then be able to deny entry to the business representative. Sim- ilarly, should a business representative engage in conduct which would warrant his eviction from the site, Re- spondents would not be precluded from taking such action. 2 * ISee nn o Corp.. 206 NLRH 4 (1973). I! Set Blanchard (ConIrucion Conmpany. 234 NLRH 1035 (1978): Phillip Dtilao & Soni. Itnc. 177 NL.RH K25 (196h9). 80 VILI.A AVIILA The aforementioned procedure appears to he fairly consistent with common and accepted practice obtaining at construction sites, and would appear to effectively ac- commodate the interests and obligations of all parties in a manner which is harmonious with the principle enunci- ated by the court in Scott Hudgens v. .N.L.R.B. .. supr. and by the Board in Scott Hudgen.s. supra,. runk VIisceiloa and Vincent Visceglia, /a Peddie Buldings. s.vpr, and Se- attle-First National Bank, supra. More restrictive rules. however, such as those measures the Respondents would impose herein, would not appear to afford Respondents the protection they seek, and would significantly inhibil unions from effectively policing the terms and conditions of employment customarily embodied in collective-bar- gaining agreements. While the aforementioned safeguards available to Re- spondents should assuage many of their concerns. it is certainly a distinct possibility, as Respondents emphasize, that a union business agent, under the guise of servicing employees on the site, could attempt to induce unlawful secondary activity. However, this possibility exists re- gardless of whether business representatives have access to the site, and causing unit employees or their employ- ers to speak with union representatives off the jobsite, as Respondents apparently suggest, will certainly not afford Respondents any measure of assurance that the business representatives will limit such communication to legiti- mate rather than unlawful purposes. Thus, the stringent safeguards which Respondents purpose herein will not, as a practical matter, result in an effective solution to Re- spondents' concerns. Respondents argue that much business and communi- cation between union representatives and unit employees and their employers could be conducted off the premises, either at curbside, at the union hall or elsewhere, and by telephone. However, the inefficiency of such methods is abundantly apparent, particularly in the construction in- dustry which customarily requires the frequent move- ment of employees, materials, and machinery from one job to another, on an intermittent and irregular basis, and under circumstances requiring varying conditions of safety, changes in the assignment and coordination of work among various crafts, and the continual hiring and laying off of employees. To preclude or severely restict union-representative access to the jobsite would signifi- cantly impair a business agent's ability to insure that sig- natory subcontractors are adhering to their contractual commitments, and to the extent that such policing of the contract is impaired, so are employees' Section 7 rights diminished. Nor, as Respondents suggest, should it be incumbent upon unit employees to initially determine contract com- pliance and thereafter report possible contract violations to the business agent for further handling. While such a method is commonly utilized, that is, the summoning of a business representative by an employee to resolve a par- ticular problem, it is simply supplemental to more direct and therefore more effective policing of contracts, and is clearly not an effective substitute for unannounced visits to the jobsite which right has been contractually granted by the signatory subcontractors to the Unions herein. Further, to place such extra-contractual restraints on union business re-resentatives, as Respondents suggest herein, would have the effect of in essence. nullifying and rendering meaningless the ery important provisions of the collective-hargailig agreements which do not so restrict union representatives' access to unit employees, and their employers, on construction sites. It is abundantly clear that a satisfactory relationship between each subcontractor and the union representative of that subcontractor's employees is necessary to insure that the entire construction project, for which Respond- ents, as general contractors, have assumed responsibility, progresses according to a predetermined and customarily exacting schedule. Obviously, one major concomitant of such a satisfactory relationship is the procedure whereb, disputes, grievances, and matters of contract adherence are readily resolved in a manner which alleviates or minimizes job crippling picketing or work stoppages. and parties to collective-hbargaining agreements have custom- arily found that the unrestricted access of business repre- sentatives to the jobsite is necessary to serve this pur- pose. The benefits flowing to the general contractors from such a mnodus opcrandi are obvious. Further, to impose such severe restrictions upon the communication between business representatives and sub- contractors and their employees would not appear to promote Respondents' interests in any respect and, rather than provide solutions to the problem perceived by Re- spondents, and accommodation of the parties' respective rights, would likely have the opposite effect of enmesh- ing Respondents in labor disputes with various unions as a result of disagreement over application of the suggest- ed procedure. Respondents b hiring subcontractors to perform work on the jobsites, hae, thereby invited these subcon- tractors to, i 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 on 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 con- tractually granted union business agents unrestricted access to the site. See Scott Hudgens, 230 NLRB 441, supru. The argument advanced by Respondents that a union's Section 7 rights are greater in the Scott Hudgens or Seat- tle-First National Bank context of economic picketing of a lessees' premises is without merit. There are significant and compelling reasons for permitting the exercise of Section 7 rights in the closest possible proximity to the locus of the employees' workplace, and in this connec- tion there is no real distinction between the instant case and the situation posed by the aforementioned cases. While it is certainly difficult, and perhaps an exercise in futility, to quantify the relative importance of various Section 7 rights vis-a-vis private property rights, it would appear that, contrary to Respondents' contentions, the private property' rights of a general contractor should be required to yield to an even greater extent than those of X81 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a lessor. Thus, the general contractor receives substantial and immediate economic benefit from a harmonious rela- tionship between the union and signatory subcontractors. Such a relationship is enhanced by readily available ave- nues of communication, unimpeded by barriers which could hinder the speedy resolution of the myriad prob- lems which are intrinsic to the construction industry. On the other hand, one would be hard pressed to discern any such immediate benefit to a lessor in the case of eco- nomic picketing of a lessee's premises. As a result of the foregoing, I find that Respondents' property rights, under the factual setting herein, must, on balance, yield to the Section 7 rights under the Act, and that Respondents may not deny or restrict jobsite access to union representatives except to the limited extent dis- cussed generally above. Should Respondents desire to require notification as a precondition for access to the jobsite by union repre- sentatives, it is an implied corollary of such a require- ment that the union business representatives must be so apprised in a manner which would permit compliance. Moreover, as I have found above, the rules Respondents sought to institute and enforce do not comport with the aforementioned notification procedure and are overly broad and restrictive. Thus Respondents, upon the advice of their labor consultant, erected no-trespass signs specifically for the purpose of limiting business agent access to the sites unless, as the signs state, the repre- sentatives "check in at office and [are] accompanied by an agent of the owner."13 As I have found that Re- spondents are not entitled to place such restrictions on a business agent's access to the jobsite, I further find Re- spondents' subsequent conduct in enforcing these or simi- lar restrictions to be unlawful. Field Representative Nieto was ejected from the job- site in Pico Rivera in late July, at a time when he was speaking with an employee of Van Mor Concrete Con- tractors with whom Cement Masons Local 627 had a collective-bargaining agreement. Shortly thereafter, the attorney for the Union directed a telegram to Respond- ent Villa Avila advising that Nieto had been on the job to service the cement masons employed by Van Mor, and otherwise engage in lawful union activity, and re- quested that Villa Avila immediately contact the Union's attorney to arrange for peaceful entry upon the jobsite. Respondent did not reply in a timely fashion, and its vit- riolic reply telegram of August 6, requiring Cement Masons Local 627 to furnish "evidence" supporting Nieto's need for access to the job, strongly suggests that Nieto's presence on the site for any reason would not be acceptable to Respondent. On August 6, Van Mor commenced to pour concrete slabs for the first time, and it appears that Van Mor would need a full complement of employees to perform such work. Moreover, so far as the record shows, Cement Masons Local 627 had not theretofore engaged in unlawful secondary activity at this site. Under these 1" Respondents' officials and agents who testified herein placed various and more restrictive interpretations on the meaning of these signs, and the extent to which they would deny or limit business agent access to the site appears to vary significantly in direct relation to each individual Re- spondent's antipathy toward the Union. circumstances, it is reasonable to assume that Nieto had a legitimate reason to be on the job,t 4 and Respondent has presented no probative evidence which would warrant a contrary conclusion. I therefore find that the conduct of Respondent in evicting Nieto from the jobsite on both occasions was violative of Section 8(a)(1) of the Act. Field Representative Bell had visited the jobsite in Palm Springs on various prior occasions, and notified Respondent Palm Springs Sun Dial of his presence on the job on each occasion. Until August 20 he was per- mitted to perform his duties at the site without an escort, even though the instant no-trespassing signs had been erected prior to that date. Further, the record discloses no unlawful conduct by Laborers Local 1184 at this site. On August 20, Bell was threatened with arrest upon en- tering the site despite the fact that he had exhibited no intent to engage in activity at variance with his stated purpose. Similarly, on August 22, after establishing a picket line to protest Respondent's unlawful conduct,' Bell again expressed a legitimate purpose for being on the job and was again threatened with arrest. Under these circumstances, I find that Bell was priviledged to enter the property, and I find that Respondent's conduct in having him followed and photographed, and summon- ing the police, was violative of Section 8(a)(l) of the Act. See Blanchard Construction Company, supra. Field Agent Jesse Stinson had been on the jobsite in Rancho Mirage on various occasions and, despite the in- stant no-trespassing signs and the apparent fact that he had not advised Respo)ndent Tom Sawyer Construction Company of his presence, he had not been evicted from the premises or told that he must have permission to enter the site until August 21, on which date his egress from the site was blocked. I credit Stinson and find that prior to this date Tackett told him he would have him arrested should he again come on the job. Such an un- equivocal threat, however, certainly does not comport with Respondent's duty to advise the Union of reason- able conditions precedent to gaining access to the jobsite. Indeed, had Stinson been so advised, and had he thereaf- ter reported to Respondent prior to entering the jobsite, Respondent could have then advised him that no unit employees were on the job and this perhaps would have obviated any need for Stinson to enter the site. I find that Respondent's conduct herein, in blocking Stinson's egress from the site, is likewise violative of Section 8(a)(l) of the Act. Whether, under other circumstances, Respondent would have been able to deny Stinson access to the job is problematical. Thus, had Stinson been advised of a re- quirement that he notify Respondent of his intent to enter the jobsite, and had he thereafter entered the job- site without adhering to this condition, Respondent may very well have been privileged to eject Stinson from the site, particularly in light of the fact that this very Union had allegedly been engaged in extensive unlawful activi- ty at the jobsite, which activity was apparently ongoing ' I credit Nieto's testimony that he requested permission on August 6 to enter the jobsite for the purpose of checking compliance with the con- tract. I a There is no contention that this picket line was unlawful. 82 VILLA AVILA at that very time, and that there were no unit employees on the job when Stinson drove onto the site. As a result of the foregoing, I find that by unnecessar- ily restricting union business agents' access to the site. each Respondent has violated Section8(a)(1) of the Act. Moreover, the conduct of Respondents herein in threal- ening the arrest of business agents, following them and photographing them in the performance of their legiti- mate duties on the jobsite, and blocking their egress from the site, particularly when, as the record discloses, this occurs in view of employees whose Section 7 rights are affected by Respondents' conduct, is violative of Section 8(a)(1) of the Act. Scott Iludgens. upra.u Blinchurd Con- struction Conmpanv. upr; .-lhrahuamson ChrVcslr-Plrinolith. Inc., 234 NI.RI 955, 971-972 (1978). CON( I LSiONS Ot L.w 1. Each Respondent herein is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Each Union herein is a labor organization within the meaning of Section 2(5) of the Act. 3. Each Respondent has violated Section 8(a)(l) of the Act b acts and conduct which unduly restricts the right of union business representatives to enter construction sites for the purpose of servicing unit employees and po- licing contracts with subcontractors. TH R MII.DY Having found that Respondents engaged in certain unfair labor practices, I recommend that they be re- quired to cease and desist therefrom and from any like or related conduct, and that they each post an appropriate notice, attached hereto as "Appendix," at the construc- tion sites involved herein where construction work is continuing. Further each Respondent shall post copies of the notice at its principal place of business wherever no- tices to construction employees are customarily posted, and shall send copies of the notice to the respective Union affected by the conduct found to be unlawful herein. Based upon the foregoing findings of fact, conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 1 6 The Respondents, Villa Avila, Pico Rivera, California; Palm Springs Sun Dial, Palm Springs, California; and Tom Sawyer Construction Co., Rancho Mirage, Califor- nia; their officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Interfering with the right of union agents to enter construction sites for the purpose of engaging in lawful 16 In the eellt no exceptions are filed as pro,,ided h) Sec 102 40 of the Rules aid Regulations if the National Labor Relations Itoard. the findings, conclulsions, and recommended Order herein shall, as prolided In Sec 102 48 of he Rules aid Regulations, be adopted h he Board and become its findings, conclusilns. and Order, and all obhlecttio thereto shall be deemed alsed for all purposes union activity related to the servicing of unit employees and policing of contracts with signatory subcontractors. (b) Erecting signs, threatening or causing arrest, block- ing ingress or egress, photographing or surveilling, or en- gaging in any like or related conduct which unduly re- stricts the right of union business representatives to serv- ice unit employees and police contracts with signatory contractors. 2. Fake the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Post at the construction sites involved herein where construction is continuing, copies of the attached notice marked "Appendix."7 Post copies of the notice at their principal place of business wherever notices to construction employees are customarily posted and send copies of the notice to the respective Union affected by the conduct found to be unlawful herein. Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly dated and signed by an au- thorized representative of Respondents, shall be posted by Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter at the aforementioned locations, in conspicuous places, where notices to employees are customarily posted. and shall be sent to the respective Unions as set forth above. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by anv other material 17 In he erent hal Ihis Order is enforced b a Judgmeni of a United Slates Curl Oif Appeals. ther words in the notice reading "Posted by Order of the NallOtiil [.alhr Relallons Hoard" shall read "Posled Pursu- anl to a Judigmitnt iof hre I'tlled States Court f Appeals Enforcing all ()rder the National I Iahor Relations Board APPENDIX No riCI To EMPLOYEES P'OSII D BY ORDER OF THE NAIIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice WE W. I. NOT prohibit union representatives from entering the jobsite for the purpose of servic- ing employees and policing contracts with subcon- tractors. WE WILL NOT erect signs, threaten or cause the arrest of union business agents, block their ingress or egress from the jobsite, photograph or engage in surveillance of their activity, or engage in similar conduct which would tend to inhibit or restrict the right of union business agents to service employees and police contracts with subcontractors on the job- site. WE wl I NOT in any like or related manner, in- terfere with, restrain, or coerce employees in the 83 84 I)t'ISI()NS ()1 NA I I()NAI LAB(R Rl A'I( )NS ()ARDI exercise of rights guiranltced them by Section 7 of the National Lahor Relations Act. VIII.A AVIIA; OR TOM SXWIR CON- STRUCTION; OR PAI M SPRIN(GS SUN DIAl