C. E. Wylie Construction Co.

1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD C. E. Wylie Construction Co. and Local Union No. 441, International Brotherhood of Electrical Workers, AFL-CIO, CLC and Sheet Metal Workers Local Union No. 420 Sheet Metal Workers International Association , AFL-CIO and Sheet Metal Workers Local Union No. 206 Sheet Metal Workers International Association, AFL-CIO. Cases 21-CA-25857, 21-CA-25948, and 21-CA-26019 July 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On December 9, 1988, Administrative Law Judge Jay R. Pollack issued the attached decision. The Respondent and the General Counsel filed ex- ceptions and supporting briefs, and the Respondent and the Charging Party Unions filed answering briefs. The National Labor Relations Board has delegat- ed 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 decided to affirm the judge's rulings, findings,' and conclusions as modified, and to adopt the recom- mended Order as modified.2 i The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings The Board disavows as inadequately supported on the record the judge's findings that Paul Wylie, Respondent's project manager, admitted at the hearing that his decision whether to allow access to union agents was arbitrary, and that Paul Wylie admitted to having said he would be "right there" during conversations between union agents and employees at the Respondent's jobsite if the union agents were allowed access. Fur- ther, we note that in fn . 5 of his decision , the judge apparently confused IBEW Local 441 with Sheet Metal Workers Local 420. 2 The judge's recommended Order regarding notice posting at its job- sites is modified to reflect the completion of the construction project where the events that gave rise to this case occurred. We note that in NLRB v. Villa Avila, 673 F.2d 281 (9th Cir. 1982), enfg. 253 NLRB 76 (1980), the court of appeals enforced the Board's Order, with certain modifications, conditioning the union's right of access on the union representative's first checking in at the construction project office and on accepting an escort provided by the party that owned or controlled the project site if there had been any incidents of vandalism, illegal work stoppages, or illegal interferences with work . Those guide- lines appear to have been tailored to the facts of Villa Avila, in which project sites had been the scene of unlawful picketing and the contractors had concerns about vandalism and inducement of work stoppages. We do not include such language in the Order here. There was no picketing in the present case, the union representatives here had apparently complied with access conditions imposed by the Navy, whose project this was, and the Order, which we adopt as modified , provides that access may be gov- erned by "reasonable rules." We affirm the judge's conclusion that the Re- spondent violated Section 8(a)(1) of the Act when it denied the Unions' agents access to its construc- tion jobsite at the Tustin Marine Corps Air Station in Tustin, California. In so holding, we find that the judge correctly applied the Board's ruling in Villa Avila, subject to the clarification of access issues presented in Jean Country.3 In this regard, we agree with the judge's conclu- sion that the Respondent's exclusion of the Unions' agents from the construction jobsite was based on its exercise of a property right. The record shows that the Navy, the owner of the land on which the construction site was situated, had specifically dele- gated to Wylie the right to exclude others from the construction jobsite. However, as recognized in Villa Avila, the Respondent's interest in this proper- ty right is diminished to the extent that it admitted to this site certain unionized subcontractors whose collective-bargaining agreements with the Charging Party Unions included specific provisions allowing access to jobsites. We further affirm the judge's finding of constructive notice of these contracts' access provisions because Wylie knew the subcon- tractors were unionized and should have known of the contractual rights of the subcontractors' em- ployees. As noted by the judge, these contractual access provisions lend further support to the Gen- eral Counsel's claim that the Unions' attempts to gain access to the construction jobsites entailed the exercise of strong Section 7 rights. Moreover, as found by the judge, the Respond- ent's exclusion of union agents from the construc- tion jobsite was not motivated by any legitimate need to regulate safety or security. On one occa- sion, when the Respondent refused access to the property because the Union did not have written authorization from the Navy, the union official in- quired of the Navy's resident officer about this re- quirement. That officer stated that he was unaware of such a requirement. Further, as the judge found, the base did not re- quire written authorization and there was no Navy 8 291 NLRB 11 (1988). Contrary to the contention of the General Counsel, we find that Jean Country, as well as Villa Avila, is applicable. The contracts giving the Unions access are not with the Respondent but, with its subcontractors. Thus, standing alone , the contracts are not dis- positive of the issues to be decided . The same conclusion holds true with respect to the issues posed in Villa Avila Factually, the situations in that case are similar to the ones presented in this case in that there, too, the respondent general contractors had no contractual relationship with the unions; the contracts were with the subcontractors on the various sites Also, legally, the same principles underlie both cases The analysis in Villa Avila, as the analysis in Jean Country, and the analysis combining those two cases in the instant case, begins with the balancing test enunci- ated in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). Thus, in Villa Avila, the significance of the contracts was the enhancement their access provisions imparted to the Sec . 7 rights involved in weighing those rights against the respondents' respective property rights 295 NLRB No. 119 C. E. WYLIE CONSTRUCTION CO. 1051 rule against, or objection to, union business agents on the jobsite . In addition, we agree with the judge that the Respondent's claim of concern about union compliance with safety rules regarding footwear was a pretext, and that the real reason for denial of access was that Wylie did not think they needed to go on site. Finally, we agree with the judge's conclusion that the Unions had no effective alternative means of communication. The judge's conclusion that there is no effective alternative to an unannounced on-site safety check is sound. As he noted, a safety check cannot be conducted other than through entry onto the property and the site to be checked. We further observe, as the judge did, that access is necessary in order to investigate and to resolve complaints regarding contract compliance when the contract grants the union such access . In this regard, we agree with the judge that Business Agent Ormes' acknowledgment that he could have taken steps necessary to resolve a hiring hall dis- pute, and another alleged contract violation, with- out access to the jobsite, did not negate the con- tractual right to access concerning these matters. Additional testimony by Ormes indicated that lack of access hindered his resolution of such matters or delayed their resolution. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, C. E. Wylie Construction Co., San Diego, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Substitute the following for paragraph 2(a). "(a) Mail a copy of the attached notice marked "Appendix" 13 to each of the employees employed by the Respondent and its subcontractors at the Tustin Marine Corps Air Base in Tustin, California, in November 1987 through May 1988 and post copies of the notice at its principal place of busi- ness wherever notices to construction employees are customarily posted. Copies of the notice, on forms provided by the Regional Director for Region 21 , after being signed by the Respondent's authorized representative, shall be mailed immedi- ately on receipt by the Respondent to all such em- ployees at their last known address, and additional copies shall be maintained by it for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. Sufficient signed copies of the appropriate notice shall be furnished to the Regional Director for posting by Shasta Electric, R.J. Lanthier Co., the three unions affect- ed, and the Naval Facilities Engineering Com- mand, if the entities are willing." Neil A. Warheit, Esq., for the General Counsel. Mark T Bennett, Esq. (Merrill, Schultz & Wolds), of San Diego, California, for the Respondent. Ray Van der Nat, Esq., of Los Angeles, California, for the Unions. DECISION STATEMENT OF THE CASE JAY R. POLLACK, Adminstrative Law Judge. I heard this case in trial at Los Angeles, California, on June 14 and 15, 1988. The charge in Case 21-CA-25857 was filed by Local Union No. 441, International Brotherhood of Electrical Workers, AFL-CIO, CLC (IBEW 441), on November 20, 1987, alleging that C. E. Wylie Construc- tion Co. (Respondent) engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. On January 8, 1988, the Regional Director for Region 21 of the Nation- al Labor Relations Board issued a complaint and notice of hearing against Respondent alleging that Respondent had violated Section 8(a)(1) of the Act by denying busi- ness representatives from IBEW 441 access to Respond- ent's construction jobsite. Thereafter, Respondent filed a timely answer to the complaint , denying the commission of any unfair labor practices. On January 19, 1988, Sheet Metal Workers Local Union No. 420 Sheet Metal Workers International Asso- ciation AFL-CIO (Sheet Metal Workers 420) filed the charge in Case 21-CA-25948, against Respondent. On February 4, Sheet Metal Workers Local Union No. 206, Sheet Metal Workers International Association, AFL- CIO (Sheet Metal Workers 206) filed the charge in Case 21-CA-26019 against Respondent. The Regional Direc- tor issued a consolidated amended complaint against Re- spondent on March 29, 1988, alleging that Respondent had violated Section 8(a)(1) of the Act by denying busi- ness representatives from IBEW 441 and Sheet Metal Workers 420 access to its construction site in Tustin, California. Respondent filed a timely answer denying the commission of any unfair labor practices and raising cer- tain affirmative defenses. The parties have been afforded full opportunity to appear, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. On the entire record, from my observation of the demeanor of the wit- nesses, and having considered the posthearing briefs of the parties, I make the following FINDINGS OF FACT AND CONCLUSIONS 1. JURISDICTION At all times material, Respondent, a California corpo- ration, has been a general and engineering contractor in the building and construction industry. On February 9, 1987, Respondent was awarded a contract to build main- 1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tenance hangars and an aircraft parking apron at the Tustin Marine Corp Air Station in Tustin, California (the Tustin jobsite). During the 12 months prior to the issuance of the complaint, Respondent performed construction services valued in excess of $50,000 for the Navy at the Tustin jobsite. Respondent admits and I find that its operations have a substantial impact on the national defense. Ac- cordingly, I find that Respondent is an employer en- gaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. The parties stipulated and I find that at all times mate- rial IBEW 441, Sheet Metal Workers 420, and Sheet Metal Workers 206 have been labor organizations within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues It is undisputed that business representatives from IBEW 441 and Sheet Metal Workers 420 attempted to visit the Tustin jobsite and were denied access to the jobsite by Paul Wylie, Respondent's project manager. The issue is whether, under the Board's balancing test set forth in Fairmont Hotel, 282 NLRB 178 (1986), as clari- fied in Jean Country, 291 NLRB 11 (1988),1 Respondent lawfully denied access to the union agents seeking to talk to their members and to check safety on the jobsite where their members were employed under contracts with Respondent's subcontractors. The legal issues in- clude the viability of the Board's ruling in Villa Avila, 253 NLRB 76 (1981), enfd. 673 F.2d 281 (9th Cit. 1982), after the Board's pronouncements in the Fairmont Hotel and Jean Country cases. Further, necessary for the reso- lution of the central issue are credibility resolutions to determine what reasons Wylie gave the union representa- tive for denying access and what were Wylie's real or true reasons for denying access. B. The Facts Respondent's construction contract is administered by the Naval Facilities Engineering Command (NAVFAC), and by the resident officer in charge of construction (ROICC) at the El Toro Marine Corp Air Station in Santa Ana, California. The Tustin jobsite, which is locat- ed at the Tustin Marine Corp Air Station in Tustin, Cali- fornia, is not surrounded by a fence separating it from the rest of the military base. Some fencing has been erected by the Navy to limit access to restricted areas. The Tustin jobsite was winding down at the time of the hearing and was completed by the time briefs were re- ceived. Respondent is not signatory to any labor agree- ment with any union. It employs carpenters and laborers but not electricians or sheet metal workers. Respondent subcontracted the electrical work at the Tustin jobsite to Shasta Electric. Shasta is signatory to a collective-bargaining agreement with IBEW 441. The contract provides for access by representatives of IBEW 441 to any job at any reasonable time where workmen are employed under the terms of the contract. Respondent subcontracted with R. J. Lanthier Co. to perform the sheet metal, heating, and air-conditioning work at the Tustin jobsite. Lanthier Co. was signatory to a collective-bargaining agreement with Sheet Metal Workers 206. That agreement provided that in addition to the geographic areas covered by Local 206, that when the employer hired sheet metal workers outside Local 206's territory, such workers, "shall receive the wage scale and working condition of the local agreement cov- ering the territory in which such work is performed or supervised." The agreement further provides that, "the employees shall be otherwise governed by the estab- lished working conditions of that Local Agreement." Lanthier Co. was working in the jurisdiction of Sheet Metal Workers Local 420 while on the Tustin jobsite. It hired and paid employees pursuant to Local 420's agree- ment. Local 206's agreement with Lanthier provided for access to any job at any reasonable time provided that the representative notifies the management of his pres- ence. Similarly, the Local 420 agreement provides: The Employer shall not prohibit representatives of the Local Union from access to any job or shop at any reasonable time provided that the representa- tive notifies the Management of his presence. Whenever an Employer signatory to this Agree- ment receives a contract in a plant or job site that requires security clearance, he shall submit the names of the Business Agents in the area, together with the names of his employees to be admitted to said plant or job site. On November 12, 1987, Eddie Ormes, a business rep- resentative for IBEW 441, received a call from his office that employees working for Shasta Electric wanted to talk with Ormes on the jobsite. Three employees had been referred from Local 441 to Shasta Electric at this jobsite. Ormes and Roy Huntington, another representa- tive, drove to the El Toro base and signed the construc- tion logbook. They then drove the 3 miles to the Tustin jobsite. Ormes spoke to the security guard2 and told him that he wished to see the employees of Shasta Electric. The security guard called Wylie and Wylie drove to the guardshack. Ormes testified that Wylie said he had previously told Ormes that he was not going to let Ormes on the jobsite. Ormes responded that he had a signatory contractor on the jobsite, that he had a right to visit the job and that he wanted to see the employees of Shasta Electric and to check the job for safety. Wylie responded that Ormes was not going on the base, and the Ormes could only see the employees before work, at lunch, or after work. Ormes insisted that he had a right to see the employees on the job. Wylie told Ormes to get off the base and I Jean Country issued after the submission of briefs in this case. The parties were given the opportunity to file supplemental briefs in light of Jean Country. On November 14, 1988, I received supplemental briefs from Respondent and General Counsel. 2 Respondent was required by contract to post a guard at the construc- tion entrance to the project . The guard recorded the name, license number, and any other pertinent information for any person requesting admittance whether or not admitted. C. E. WYLIE CONSTRUCTION CO. challenged Ormes by saying Ormes would have to get through him to get on the jobsite . Ormes answered that it was Government property and not Wylie's . He said that if Wylie was attempting to get him to start a fight, he would not do so but if Wylie hit him then he would own Wylie . Ormes and Huntington left and drove to the El Toro base where they signed out. Huntington testified in accordance with Ormes' testimony but did not speak during the conversation . According to Ormes and Hun- tington, Wylie gave no reason for denying access to the job. Both specifically denied that Wylie mentioned need- ing written permission or that Wylie mentioned any safety requirements. Wylie testified that he had told Ormes in August 1987 that access was being denied because Ormes did not have proper footwear. Wylie changed this testimony and stated that he denied access in August because Ormes did not have written authorization to enter the jobsite.3 Wylie testified that he denied access on November 12 solely because the union agents did not have written au- thorization, changing earlier testimony that he denied access because the agents did not have construction hard sole shoes and written authorization from the govern- ment. Wylie was not a credible witness. He often changed his testimony and exhibited intense hostility against the Unions and their agents. So much so, that Wylie's ability to perceive and relate what occurred cannot be deemed reliable . I find, in accordance with Wylie's admissions, that he denied access because he saw no reason to permit access to the job. Wylie also admitted that there were no contracts or other documents barring access to the jobsite and that ROICC officers had told him that they had no objection to union agents visiting the jobsite. Wylie admitted and I find that the decision to deny the union agents access was made solely and arbi- trarily by Wylie. To the extent that Wylie's testimony in- cludes statements contrary to these admissions and find- ings, I do not credit such testimony. In March 1988, Ormes was informed by a union member that Shasta Electric had subcontracted sound work to a nonunion contractor in violation of its collec- tive-bargaining agreement. Ormes testified he has been unable to resolve this matter because he has been denied access to the job . In April or May, Ormes learned that an IBEW signatory employer was on the jobsite but had not properly used the hiring hall . Ormes testified that the lack of access hindered him in resolving this problem. On cross-examination, Respondent was able to show that Ormes could have taken steps necessary to resolve these disputes, without access to the jobsite. However, I be- lieve the General Counsel showed that the detail of access was likely to hinder or delay resolution of such disputes. Carl Moore, a business representative for Sheet Metal Workers 420, testified that he sought access to the jobsite on January 8, 1988, to check safety and to service Lanth- Wylie testified that an unidentified ROICC had told him that written authorization was required. That testimony is not credited Wylie admit- ted he knew of no such requirement in his contract and that he had been told that he was responsible for security. Except for purposes of prevent- ing access to union agents, Wylie has not required written authorization for access. 1053 ier's employees. Lanthier had five or six sheet metal workers on the jobsite at that time .4 Moore went to the military police shack at the Tustin base and stated that he wanted to visit the jobsite . The military policeman drove Moore to the jobsite. They were told by Respond- ent's security guard to wait . Wylie came to see Moore with Michael Hanson, a foreman for Lanthier. Moore gave Wylie his business card and introduced himself. Wylie asked the purpose of Moore's visit and Moore re- plied that the wanted to service the people he represent- ed and to check the job for safety. Wylie asked if Moore had cleared in with ROICC and Moore said he had only gone to the main gate of the Tustin base. Wylie said Moore had to clear in with ROICC before he could be allowed access to the jobsite. Moore replied that he would do so. Moore did not attempt to visit the jobsite again until January 14.5 Wylie testified that Moore was not admitted because he did not have safety shoes and did not have written authorization . Wylie did not permit access because Moore had not demonstrated a need to have access to the jobsite. Wylie's testimony that he told Moore that he had improper footwear is not credited.6 On January 14, 1988, Moore went to the public works building at El Toro, and cleared in with ROICC officer Ed Ireland by signing the construction logbook. When Moore arrived at the jobsite he was met by Brian Frost, a ROICC officer. Moore and Frost were met by Wylie and Hanson . Wylie asked for another business card and Moore gave him one. Wylie asked why Moore was there and Moore answered that he wanted to go on the jobsite to service his members and to check the job for safety. Wylie asked where on the job Moore wanted to go and Moore replied where his members were working. Wylie demanded to know a specific location and Moore an- swered that was asinine because he had never been on the job and therefore could not know specifically where his members were working . Wylie replied "asinine, let me write that down." Wylie then asked if Moore would comply with the safety regulations and Moore answered that he would. Wylie said he was the safety officer and that he would guarantee safety on the job. Moore said he wanted to check safety for himself. Wylie said he would not allow Moore on the job with unauthorized footwear but did not state what was required . Next, Wylie told Moore that if he permitted Moore on the job he would escort Moore and that he would be right there when Moore talked to employees . Moore said that Wylie could 4 As stated earlier, Local 420 had no agreement with Lanthier directly but was operating under the agreement with Local 206. That agreement required Lanthier to work under the local agreement of the Sheet Metal local union having geographic jurisdiction. S By January 14, Wylie had at least constructive notice that IBEW 441 was claiming a contractual right to access to the jobsite. I do not credit the testimony of Chris Wsolek , project manager, as to the substance of this conversation. The credible evidence establishes that Wsolek was not present , or if present, was not close enough to hear the conversation. I generally credit the testimony of Michael Hanson, Lanthier's fore- man. However, to the extent that Hanson testified that Wylie mentioned safety equipment in his January 8 conversation with Moore , I do not credit Hanson. Rather, I believe that Hanson was confused as to dates and that the safety requirements were first mentioned at the January 14 conversation, at which Hanson was also present. 1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD not be right there when he talked to employees and threatened to file an unfair labor practice charge. Wylie told Moore to go ahead and file, that he had charges before and "one more wouldn't make a difference." Wylie asked for written authorization and stated that Moore was required to have written authorization. Moore asked Frost if that was true and the ROICC offi- cer said that to his knowledge , none was required. Wylie said he was denying Moore access and drove away. Moore spoke to Hanson for a few minutes and then went back to El Toro to sign out. Moore asked Ireland if he needed written authorization to go onto the jobsite and the ROICC officer said that Moore simply had to log in as he had done. Wylie testified that he did not permit Moore access be- cause he did not have sufficient reason for gaining access. Wylie also testified that he denied access because Moore had improper footwear and did not have written authorization. Wylie's testimony that he told Moore that required footwear was a boot with a reinforced toe is not credited. Wylie admitted telling Moore that he would follow him on the jobsite and did not deny saying he would be right there during conversations with employ- ees. Moore was wearing hard sole boots and testified that he had never before been denied access to a job be- cause of his boots. Respondent's contention that crepe sole boots was required differs from its written policy re- quiring hard sole boots. Moore testified that after he was denied access to the jobsites he learned that one of his members was injured while working for Lanthier. Whether the employee was injured on the job is unknown and also beside the point. The relevant point is that the denial of access tends to hinder union agents in investigating such matters. Respondent's Defenses Respondent contends that permitting access to union agents would require it to violate the regulations of the Navy. There is no credible evidence to support that con- tention. Rather the evidence reveal that the union agents were merely required to log in at El Toro.7 The ROICC officer told Wylie in Moore's presence that he knew of no requirement of written authorization . Further, Wylie admitted that ROICC officers told him that they had no objection to the business representatives having access to the jobsite. Finally, when questioned at the hearing, Wylie could offer no contract or other Navy document which prohibited the access sought in this case. The guidelines argued in the brief were offered by counsel. Respondent further argues that the union agents re- fused to abide by reasonable safety rules and regulations. Again, the facts do not support this contention. Respond- ent never gave Ormes or Huntington notice of any safety Respondent's agreement with the Navy incorporate standard guide- lines which include authorized admittance by ROICC The evidence is clear that the requirement was met by logging in at El Toro . The guide- lines further state, "application for passes shall be made well in advance of intended entry." However, as to this jobsite, ROICC did not require passes. All that was required was logging in at El Toro. The guidelines referenced by Respondent applied to employees and subcontractor em- ployees, but such persons were never required to have written authoriza- tion or passes requirements. Rather, they were denied access because they could not provide a sufficient basis for access. The standards for such basis were unknown only to Wylie. Moore was told written authorization was required but when he properly cleared onto the job new specified re- quirements were mentioned . He was told his boots were not authorized but was not told what was required. The requirements of crepe shoes offered at hearing was not written in Wylie's safety rules nor mentioned to Ormes or Moore. Further, Wylie added the requirement that he constantly escort Moore and not permit confidentiality. If that did not stop Moore, there were still unspecified safety rules and the written authorization . Wylie never explained how one could obtain such authorization. The credible evidence establishes that rather than a failure to abide by rules the real reason was what Wylie did not view the servicing of members or a safety check as a suf- ficient basis to personally gain access to the job. In Wylie's view, the Unions could conduct their business from the gate before work, after work, or at breaks. Wylie testified- that access would be granted if a specific need was demonstrated and the other requirements ob- served. I do not credit such testimony . Such self-serving and vague standards permit Wylie to continue to impose new conditions once the unions satisfy existing require- ments. Respondent contends that the Unions had effective al- ternate means of communications with their members. To rebut this contention General Counsel offered evi- dence that the union agents usually conduct safety checks while employees are working to get an accurate reading of conditions . Further, the union agents testified that lack of access hindered their ability to investigate and resolve complaints. Respondent showed on cross-ex- amination that the agents were not as aggressive in inves- tigating as they might have been . However, it appears contrary to the policy of minimizing labor disputes, to require unions to create or enlarge disputes in order to obtain access. Rather, access should be granted to pro- vide for earlier resolution of dispute. Respondent attempted to show that the agreements be- tween the Unions and the subcontractors are 8 (f) agree- ments. I ruled that, assuming arguendo , the agreements are 8(f) agreements, that defense was not available to Re- spondent. The agreements were in effect and were being honored by the employers party thereto.8 I, therefore, 8 In John Deklewo & Sons; Inc, 282 NLRB 1375 (1987), the Board held that parties to at 8(f) agreement will be required to comply with that agreement during its term, and neither party will be able to unilaterally repudiate the agreement The Board's decision was enforced by the United States Court of Appeals for the Third Circuit (843 F.2d 770 (1988)). Further, in Jim McNeff, Inc. Y. Todd, 461 U S. 260 (1983), the United States Supreme Court held that an 8(f) contract was enforceable in court for contract damages prior to repudiation of the agreement. Thus, even if an employer could repudiate its contract, as it could prior to Deklewa, the contract is enforceable by the union prior to repudi- ation. Certainly, a third party such as Respondent cannot repudiate a contract honored by a union and a signatory employer. Thus, whether the Supreme Court approves the Deklewa rationale or not, Respondent's defense cannot be raised where the parties are applying their contract. C. E. WYLIE CONSTRUCTION CO. 1055 sustained the objections to such evidence , I reaffirm such rulings. Respondent contends that Sheet Metal Workers Local 420 has no contractual right of access to Lanthier's em- ployees. As mentioned earlier the evidence shows other- wise. While Lanthier was working in Local 420's juris- diction the employees were working under the condi- tions in Local 420's local agreement as agreed to in Lanthier's contract with Local 206. As a third-party ben- eficiary of the Lanthier-Local 206 agreement, Local 420 had a contractual right to access. Again it appears this defense is not available to Respondent . Lanthier never attempted to deny access and was abiding by its agree- ment with Locals 206 and 420. To the extent that Robert Lanthier, owner of Lanthier Co., testified that only the economics of the Local 420 contract were in effect, he is not credited . Lanthier answered two or three times that he had adopted the Local agreements while working outside Local 206's jurisdiction. Only after a series of leading questions did Lanthier change his testimony.9 In any event, at the times material herein, neither Lanthier nor Hanson expressed any objection to access to the job- site for agents of Local 420. Analysis and Conclusions In Villa Avila, 10 the Board was faced with the issue of whether three nonunion general contractors violated the Act by denying access to union business agents seeking to enforce contracts with union subcontractors. The gen- eral contractors alleged that the agents would induce secondary boycotts if permitted access . The general con- tractors also argued that the union agents could conduct their business off the site. If access was imperative be- cause of a reported safety violation , the general contrac- tor would escort the union agent around the site for the purpose of conducting an investigation. In finding a violation of Section 8(a)(1), the Board held that the employees of the union signatory subcon- tractors had the right under Sections 7 and 8 (a)(1) to re- ceive the services of their union business agents which are necessary to police existing contracts; the contracts being the result of collective bargaining under the Act. Further, the Board held that the offsite communication urged by the general contractors was inadequate because unannounced visits to the jobsites were more effective. Accordingly, the Board held that the restraints placed on access by the generals , in effect, nullified the contract provisions obtained through collective bargaining by the unions and that by contracting with union subcontractors with what the subcontractors had agreed to grant their unions. Thus, while the Board acknowledged that the generals had the right to institute and maintain reasona- ble rules and regulations to safeguard their property in- terests, such rules and regulations must be communicated to the unions. As stated earlier, Respondent contends that the Villa Avila case has been overruled by the Board's decision in 9 At the time of the hearing, Respondent's counsel also represented Lanthier in some labor-related matters. 10 253 NLRB 76 (1980), enfd. as modified 673 F.2d 281 (9th Cir. 1982). Fairmont Hotel. 1111 Contrary to Respondent's argument, the Fairmont Hotel case does not overrule Villa Avila, rather it announces a balancing test which may be used in a variety of circumstances not limited to construction sites. In my view applying the Fairmont Hotel rationale to the facts of the Villa Avila case, the very same result is reached. Thus, there would be no reason for the Board to overrule Villa Avila. In the Fairmont Hotel case, the Board announced the following balancing test to deter- mine whether a union's demand for access will prevail over an employer's property interest: [I]t is the Board's task first to weigh the relative strength of each party's claim. If the property owner's claim is a strong one, while the Section 7 right at issue is clearly a less compelling one, the property right will prevail . If the property claim is a tenuous one, and the Section 7 right is clearly more compelling, then the Section 7 right will pre- vail. Only in those cases where the respective claims are relatively equal in strength will effective alternative means of communication become deter- minative. Factors that may affect the relative strength of a union's claim of Section 7 rights include the following: the nature of the right asserted ; the purpose for which it is asserted; the employer that is the target of the activity; the situs of the activity, the relationship of the situs to the target; the intended audience; and the manner in which the right is asserted. Ibid. Factors that may affect the relative strength of an em- ployer's claim of a property right include the following: the use to which the property in question is put; the re- strictions, if any, that are imposed on public access to the property or the facility located on the property ; and the size and location of the private property. See Homart Development, 286 NLRB 714 (1987). In applying the Fairmont Hotel balancing test to this case, I find that the Unions had a compelling Section 7 claim to access to the jobsite. The right asserted, the right of employees to receive the services of their busi- ness representatives, was obtained through collective bargaining and was recognized by the Board in Villa Avila as a right that should not be easily nullified by a nonsignatory employer's action . The purpose for which the right was being asserted , to service employees and to make a safety check, is also a purpose afforded recogni- tion by the Board and the court in Villa Avila. The Board and court recognized that union agents have greater expertise in safety than the average employee and are less likely to fear retaliation for reporting a safety violation. See also Houston Coca-Cola Bottling Co., 265 NLRB 766 (1982). No picketing or disruption of work is involved in the instant case. Ormes and Moore were seeking to communicate with their employees and check the site whether their members were working. Both Ormes and Moore conducted themselves in a peaceful manner. There was no evidence or even contention that the agents intended secondary activity . Neither Lanthier 11 Fairmont Hotel, 282 NLRB 170, 172 ( 1986). 1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Co. nor Shasta Electric, the targets of the union activity, objected to the union visits. Thus, under the Fairmont Hotel test, the General Counsel established a relatively strong claim of Section 7 rights. The Unions here were given no notice of reasonable rules and regulations regarding safety, security, or work- ing time. Rather than give notice, Respondent sought to suppress or conceal the rules to confuse the Unions. Re- spondent did not seek compliance with its rule. Rather it sought to vary rules to create pretenses by which it could deny access. The requirement of written permis- sion was applied to no one else and was applied even after the ROICC officers had indicated that they had no such requirement. Respondent's property claim is not nearly as strong as the Section 7 rights involved. Respondent did not own or least this property. Rather it was owned by the gov- ernment, which informed Wylie that it had no objection to union access. The jobsite was a construction site, not generally available to anyone other than contractors and their employees. However, the Unions had contracted for access in such circumstances . No picketing, property damage, disruption of work, or interference was in- volved. Reasonable restrictions such as logging in at El Torro and checking in with the security guard are per- missible. However, Respondent never gave the Unions a reasonable opportunity to comply with its rules. Re- spondent required permission in writing from ROICC but never revealed where or how one could obtain such written permission. The ROICC officers indicated that such a writing was not required . Written permission was required of no one else. Respondent gave the Unions no notice of its safety and security requirements . Wylie. simply told the agents they did not meet the require- ments but would never inform them of what was re- quired. Respondent had a strong property right in prohibiting stranger union agents from this site but, as to these agents, having members on the job working and having obtained the right to access through contracts , Respond- ent's right was limited to making reasonable rules and regulations to protect its interests . Based on the record evidence, I am convinced that Wylie intended to contin- ually place obstacles in the way of the union agents be- cause he did not recognize as valid their reasons for re- questing access. As applied to the Unions, Wylie used the rules to prevent access and not to regulate safety or security. In my view, the Section 7 rights of the electricians and sheet metal workers are far more compelling than the property rights asserted by Respondent. Under Fairmont Hotel, the question of alternate means of communication need not be addressed. However, after the receipt of briefs in this case, the Board issued its decision in Jean Country, 291 NLRB 11 (1988). That case involved whether property owners who controlled a large shop- ping mall around a particular store could lawfully pre- vent pickets from communicating their message to the public near the store entrance. The Board refined its Fairmont Hotel test and announced that the availability of reasonable alternative means is a factor that must be considered in every access case. The parties were permit- ted to file supplemental briefs based on the Jean Country decision. The Jean Country decision makes alternative means of communication a significant factor in the balancing test. Factors that may be relevant to the assessment of alter- native means include, but are not limited to, the desir- ability of avoiding the enmeshment of neutrals in labor disputes, the safety of attempting communications at al- ternative public sites, the burden and expense of non- trespassory communication alternatives , and, most signifi- cantly, the extent to which exclusive use of the non- trespassory alternatives would dilute the effectiveness of the message. Although the Board identified the various factors within three categories labeled "property rights," "Sec- tion 7 rights," and "alternative means," those categories are not entirely distinct and self-contained. "A given factor may be relevant to more than one inquiry." However, the Board has held in Villa Avila, supra and Houston Coca-Cola, supra, that no alternative means exists for a personal safety check by a business represent- ative. Further, in Villa Avila and Houston Coca-Cola, the Board found that offsite visits with employees were not the equivalent of unannounced personal visits. These policy judgments were not overruled by the more recent Board decisions. Thus, in the final analysis the recent re- finement of the Fairmont Hotel case in Jean Country does affect the balance of interests here. Under all the tests used by the Board , the Section 7 rights here are far more compelling than the property rights asserted . The alter- native means argued by Respondent so diminish the goal of the visits that the Board refuses to recognize them as a reasonably effective alternative. There was no method of visiting the jobsite and conducting the safety check other than entry onto the Employer's property. Accord- ingly, I find that Respondent's refusal to permit the Unions' agents access to service their members, police their contracts, and make safety checks violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. Respondent C. E. Wylie Construction Co. is an em- ployer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Unions, Local Union No. 441 , International Brotherhood of Electrical Workers, AFL-CIO, CLC, Sheet Metal Workers Local Union No. 420, Sheet Metal Workers International Association , AFL-CIO, and Sheet Metal Workers Local Union No. 206, Sheet Metal Work- ers International Association , AFL-CIO are labor orga- nizations within the meaning of Section 2(5) of the Act. 3. Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act by interfering with the rights of representatives of IBEW 441 and Sheet Metal Workers 420 to enter its Tustin, California jobsite for the lawful purpose of servicing employees represent- ed by the Unions and making a safety check pursuant to collective-bargaining agreements with certain subcon- tractors on the jobsite. C. E. WYLIE CONSTRUCTION CO. 1057 4. The unfair labor practices described above, occur- ring in connection with the operations of Respondent, tend to lead to labor disputes burdening and obstructing the free flow of interstate commerce. THE REMEDY Having found that Respondent engaged in certain unfair labor practices , I shall recommend that it be re- quired to cease and desist therefrom and take certain af- firmative actions designed to effectuate the policies of the Act. The recommended Order reflects the fact that Respondent may require adherence to reasonable rules and regulations so long as the rules are uniformly applied and clearly communicated to the Unions. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed12 place of business wherever notices to construction em- ployees are customarily posted and send copies of the notice to the three Unions affected by the conduct found unlawful here. Copies of the notice on forms provided by the Regional Director for Region 21, after being duly signed by its authorized representative, shall be posted immediately upon receipt and be maintained for 60 con- secutive days in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. APPENDIX ORDER The Respondent, C. E. Wylie Construction Co., San Diego, California, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Interfering with the rights of business representa- tives from IBEW 441, Sheet Metal Workers Local 420, Sheet Metal Workers Local 206, or any other labor orga- nization, to enter construction jobsites for the purpose of engaging in lawful union activity related to the servicing of bargaining unit members, making a safety check or otherwise policing or enforcing a collective-bargaining agreement, while the union signatory subcontractor is present and working on the jobsite; provided however, that nothing here shall prohibit Respondent from enforc- ing uniformly applied, reasonable rules regarding safety, working time, and security; provided further that the unions are given clear notice of such rules. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at all of its construction sites currently in op- eration copies of the attached notice marked "Appen- dix." 13 Further, post copies of the notice at its principal 12 All motions inconsistent with this recommended Order are hereby denied. If no exceptions are filed as provided by Sec. 102 .46 of the Board's Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec . 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 13 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 Nation- al 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 " 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 protect- ed concerted activities. WE WILL NOT interfere with the rights of business rep- resentatives from IBEW Local 441, Sheet Metal Workers Local 420, Sheet Metal Workers Local 206, or any other labor organization, to enter construction jobsites for the purpose of engaging in lawful union activity related to the servicing of bargaining unit members, making a safety check or otherwise policing or enforcing a collec- tive-bargaining agreement, while the union signatory subcontractor is present and working on the jobsite; pro- vided however, that nothing here shall prohibit us from enforcing uniformly applied, reasonable rules regarding safety, working time and security; provided further that the Unions are given clear notice of such rules. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. C. E. WYLIE CONSTRUCTION CO.