Mayer Group, Inc.

MAYER GROUP, INC. 25 Mayer Group, Inc. and Ventura County District Council of Carpenters, United Brotherhood of Carpenters & Joiners of America, AFL-CIO. Case 31-CA-13547 August 9, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On May 14, 1984, Administrative Law Judge Earldean V. S. Robbins issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed a reply brief. 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 and to adopt the recommended Order. In affirming the judge's findings regarding the Respondent's 8(a)(1) violation for restricting the Union's agents access to its construction jobsite at the intersection of Hill and Thiell Streets in Ven- tura, California, we find that the judge correctly applied the Board's ruling in Villa Avila,2 which is subject to the clarification of access issues present- ed in Jean Country.3 See C. E. Wylie Construction Co., 295 NLRB 1050 (1989). The Respondent is the owner-operator and gen- eral contractor of the construction jobsite to which the union agents sought access. The Respondent's right to exclude others from the jobsite derives from its ownership of the land, although its status as general contractor could also potentially provide a basis for its exclusion of others. See, e.g., C. E. Wylie Construction Co., supra. However, as stated in Villa Avila, a general contractor's property right is reduced when it invites unionized subcontractors onto its property where those subcontractors have collective-bargaining agreements that include access provisions. The general contractor has thereby submitted its own property right to the lawful activities of union business agents servicing 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 Blanchard Construction Co, 234 NLRB 1035 (1978), cited by the judge, was denied enforcement without published opinion in NLRB Y. Blanchard Construction Co, 108 LRRM 2104 (9th Cir 1980). 2 253 NLRB 76 (1981), enfd. 673 F 2d 281 (9th Cir 1982) 2 291 NLRB 11 ( 1988). their members pursuant to contracts with subcon- tractors and has shown no reason here for limiting those contractual rights. Villa Avila, supra, 253 NLRB at 81. Concerning the Union's right, we find that the access provisions in the contracts with the subcontractors and the reasons therefor evi- dence that the Union's request for access "entailed the exercise of strong Section 7 rights." C. E. Wylie Construction Co., supra. The record establishes that the Union sought access on September 1, 1983 , for the stated purpose of customary and legitimate union-member consul- tation, including receipt of safety complaints.4 We find that the Union had no alternative means of communication in this case. The safety checks, here, could not be conducted without entry onto the jobsite . Similarly, the investigation and resolu- tion of contract compliance issues require access to the jobsite. C E. Wylie Construction Co., supra at 1051. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Mayer Group, Inc., Beverly Hills, California, its officers, agents, successors, and assigns,shall take the action set forth in the Order.5 4 The Respondent states in its brief that it had "good cause" to believe that the Union's September 1, 1983 visit was for "illegal purpose[s]" and "intended to coerce secondary employees through the picket line." The Respondent called no witnesses in support of its arguments. We agree with the judge that although subsequent events might indicate the Union sought access partly to identify and discipline union members working behind a picket line, the Respondent produced no evidence to show that it had reason to doubt the union agents' stated purpose on September 1, 1983. S In NLRB Y. Villa Avila, 673 F.2d 281 (9th Cir . 1982), enfg 253 NLRB 76 ( 1981), the court enforced the Board's order with certain modifications, conditioning the union's right of access on the union repre- sentative's first checking in at the construction project office and on ac- cepting an escort provided by the owner or controller of the project site if there had been any incidents of vandalism , illegal work stoppages, or illegal interferences with work Those conditions appear to have been tai- lored to the facts of Villa Avila in which the project sites had been the scene of unlawful picketing and the contractors had concerns about van- dalism and inducement of work stoppages We have not included such language in the Order here because we find no evidence warranting the imposition of such restrictions Rachel D. Young, Esq., for the General Counsel. Richard Reincke (Mike Sullivan & Associates), of Covina, California, for the Respondent. Gordon Hubel, Esq. (Levy & Goldman), of Los Angeles, California, for the Charging Party. DECISION STATEMENT OF THE CASE EARLDEAN V.S. ROBBINS, Administrative Law Judge. This matter was heard before me in Ventura, California 296 NLRB No. 9 26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD on January 19, 1984. The charge was filed by Ventura County District Council of Carpenters, United Brother- hood of Carpenters & Joiners of America, AFL-CIO (the Union) on September 26, 1983, and served on Mayer Group, Inc. (Respondent) on September 28, 1983. The complaint, which issued on November 30, 1983, alleges that Respondent violated Section 8(a)(1) of the National Labor Relations Act (the Act). The basic issue herein is whether Respondent interfered with, restrained and co- erced its employees in the exercise of their Section 7 rights by accompanying the union representatives during their conversations with employees on the jobsite. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT 1. JURISDICTION At all times material, Respondent, a California corpo- ration with an office and place of business located in Beverly Hills, California, has been engaged as a general contractor in the building and construction industry. Re- spondent, in the course and conduct of its business oper- ations, annually sells goods and services valued in excess of $50,000 to customers or business enterprise within the State of California, which customers or business enter- prise themselves meet one of the Board's jurisdictional standards other than the indirect inflow or indirect out- flow standard. The complaint alleges, Respondent admits, and I find that Respondent is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, the parties stipulate, and I find that the Union is now, and at all times material herein has been, a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES During the times material herein, Respondent has been engaged as the owner-operator of a jobsite consisting of apartment buildings under construction located in Ven- tura, California (the jobsite). Construction work on the jobsite has been performed by eight subcontractors, all of whom are signatories to interim collective-bargaining agreements with the Union except for Republic Concrete Construction Co., Inc. Douglas Dole (Dole), a business representative for the union assigned to service the job- site, commenced visiting the jobsite some time in the last part of 1982 or the first part of 1983. Thereafter, he vis- ited the jobsite at least once a month for the purpose of preparing a steward's report.' The purpose of these visits was to talk to each employee to determine if the employ- ee possessed a current union card and whether the em- ployee had any job-related complaints such as safety conditions and receipt of wages and benefits. I Additional visits were also made for other purposes. Dole testified, without contradiction,2 that at some time prior to August 1983,3 Harry J. Taylor, Respond- ent's superintendent, informed him that when he entered the jobsite for purposes contemplated by the access pro- vision of the agreement,4 it was not necessary to check in with Taylor. However, following the Union's August 26 commencement of picketing of Republic Concrete at the jobsite,5 Respondent posted a "No Trespassing" sign and notified Dole that next time he entered the jobsite he would have to check with Taylor, and Taylor would have someone accompany him. Dole's first visit to the jobsite thereafter was on September 1 when he was ac- companied by Union Business Representative William Geyer. Upon entering the jobsite, Dole and Geyer went to Respondent's construction trailer and informed Taylor that they were there to take a steward's report. Taylor said he was busy and asked if they could return later. Dole said that would be difficult because both his vaca- tion and the Labor Day holiday were approaching and he was trying to get his work completed early. Taylor then made a telephone call to someone to whom he stated that the business representative was there to take a steward's report and asked what he should do. When Taylor completed the telephone call, he instructed Re- spondent's assistant superintendent, Tim Lamar, to ac- company Dole and Geyer as they visited the employees. Dole said he wanted to go on record as objecting to this, that he did not want Lamar to accompany them. Dole and Geyer then proceeded to speak to some 27 or 28 employees. Prior to approaching the first employ- ee, Dole told Lamar that he felt Lamar did not have the legal right to be there, that the conversation between union business representatives and employees should be private, and that Lamar should stand aside so he could not hear the conversation. Lamar said he did have the right to be there and each time Dole and Geyer spoke to an employee, Lamar stood beside them and watched ev- erything they wrote on the steward's card. On at least one occasion Dole requested Lamar to step back, but Lamar did not do so. This continued for the hour and 45 minutes or 2 hours it took to complete the steward's report. This was the first time that Lamar or any repre- sentative of Respondent had accompanied the union busi- ness representatives as they conducted steward's reports. Dole testified that he did not ask any of the employees to leave the jobsite and none of them inquired about the picket line. According to both Dole and Geyer, Dole asked each employee if he had his union card and if he had any problems, and Geyer pointed out some safety violations to Lamar. According to Geyer, Lamar had a 2 No witnesses testified on Respondent 's behalf a Unless otherwise indicated , all dates will be in 1983 4 The agreement provides that the union business agent or special rep- resentative shall have access to the project during working hours and shall make every reasonable effort to advise the contractor or his repre- sentatives of his presence on the project 5 On August 26, the seven contractors with whom the Union had no dispute were all scheduled to work. However, when the employees ar- rived at the jobsite, which was being picketed by the Union, they refused to enter the premises . At some point thereafter, prior to September I or 2, when the picketing ceased , employees of at least one subcontractor re- turned to work and were working on September 1 at the time the stew- ard's report was conducted MAYER GROUP, INC. 27 pad with him on which he made notations ; however, Geyer could not see what he was writing. Geyer also testified that neither he nor Dole asked any of the em- ployee to leave the jobsite nor did they threaten any em- ployee to induce them to leave the jobsite. He also denies any discussion regarding the picket line. On September 8, Dole preferred internal union charges against all member-employees he found working at the jobsite on September 1. The basis of the charge was the crossing or working behind a duly authorized picket line on September 1 at the jobsite. By letter dated September 14, these employee-members were requested to appear before the union executive board on October 4 to answer the charges . The charges were read at an executive board meeting; however, no hearing was conducted prior to other withdrawal of the charges in the last part of November or the first part of December as a result of agreement between the parties during contract negotia- tions. The General Counsel contends that by accompanying the union representatives as they conducted a steward's report, Respondent unlawfully interfered with employ- ees' legitimate union activities . Respondent contends that Dole and Geyer entered the jobsite, at least partially, for the purpose of determining who was working behind the picket line so that charges could be filed against them, that Respondent had good reason to believe the Union was attempting to shut down its jobsite by picketing the entire project, and that this gave Respondent the right "to keep an eye on the union representatives to prevent secondary conduct." I find that the record does not sup- port the ultimate conclusion urged by Respondent. The Board has held that employees' Section 7 rights include the right to receive the services of union business agents necessary to police existing collective-bargaining agreements or to negotiate new agreements . Villa Avila, 253 NLRB 76 (1980), enf. 673 F.2d 281 (9th Cir. 1982). In that case, the general contractor required, as a condi- tion precedent to permitting union representatives access to the jobsite, that the business agent must report to the general contractor , state the nature of his business with sufficient particularity to satisfy the general contractor that the matter cannot be handled off the premises and, if these conditions are met , the business agent must wait until a representative of the general contractor is avail- able to accompany the business agent and remain with and escort him until his work is complete . The general contractor's rationale for these restrictions was the po- tential for abuse inherent in union representatives ' access to the jobsite, particularly during labor disputes-point- ing out specifically that union representatives may engage in unlawful conduct by causing secondary boy- cott activity, that labor disputes have not infrequently re- sulted in vandlism, violence and arson, and that the pos- sibility of such conduct is a legitimate reason for escort- ing union representatives while on the jobsite . The Board adopted the finding of the administrative law judge that while it was not unreasonable for an employer to require union representatives to notify the general contractor of their presence on the jobsite and the general locus and nature of their business on the site, the requirement that union representatives check in at the office and be ac- companied by an agent of the owner was an impermissi- ble restriction of employees ' Section 7 rights. However, the administrative law judge also concluded that should a business representative's prior conduct reveal that the stated legitimate purpose for the visit is pretextual and is designed to gain access to the site for an unlawful reason, it would not be unlawful to deny entry to the business representative nor to evict a business representa- tive from the site if he engaged in unlawful conduct. The court enforced the Board's order subject to the following guidelines: (1) Any visitor can be required to report to the project office and to state in general terms his or her business before being allowed to proceed into the work area; (2) Union representatives who request permission to conduct legitimate Sec. 7 business in the work area are presumed to be on legitimate union busi- ness until, by their conduct, they indicate the con- trary, and (3) In the event of vandalism, illegal work stop- page or illegal interference with work, the owner or occupier of the worksite may require that the visi- tor agree to be accompanied by an escort represent- ing the owner or occupier of the premises until after the dispute or disorder has been resolved. Here the business representatives checked in with Re- spondent and stated a legitimate purpose for entering the jobsite. Although the Union's subsequent conduct may arguably indicate that at least a partial reason for seeking access to the jobsite on September 1 was to determine who was working behind the picket line so that internal union charges could be preferred against them, the prob- ability of the existence of any such reason was not appar- ent at the time. Dole normally prepared steward's re- ports at least once a month and there is no evidence that on September 1 Respondent had reason, beyond the speculative one arising out of the mere existence of a labor dispute and picketing , to believe that Dole's and Geyer's purpose was other than to conduct a steward's report. In these circumstances, I find that by accompanying through the jobsite union representatives who entered the jobsite for the purpose of preparing steward 's reports and soliciting safety complaints and other grievances, and remaining present during conversation between em- ployees and said union representatives, Respondent has impermissibly interfered with, restrained and coerced employees in the exercise of their Section 7 rights and has thereby violated Section 8(a)(1) of the Act. Villa Avila, supra. The fact that the Union may have later used for unlawful purposes the information lawfully obtained during the September 1 visit is no defense. See Blanchard Construction Co., 234 NLRB 1035 (1978). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By accompanying union business representatives during conversations with employees on the jobsite where said union representatives have entered the jobsite for the purpose of engaging in lawful union activity re- lated to the servicing of unit employees and policing of contracts with signatory subcontractors, Respondent has interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. 4. The above-described unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. principal place of business wherever notices to construc- tion employees are customarily posted , and send copies of the notice to the Union affected by the conduct found to be unlawful herein. Copies of said notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respond- ent cease and desist therefrom and take certain affirma- tive action in order to effectuate the purposes of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER The Respondent, Mayer Group, Inc., Beverly Hills, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Accompanying union business representatives during conversations with employees on the jobsite where said union representatives have entered the jobsite for the purpose of engaging in lawful union activity re- lated to the servicing of unit employees and policing of contracts with signatory subcontrators. (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 National Labor Relations Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at construction site involved herein, if con- struction is continuing, copies of the attached notice marked "Appendix."7 Post copies of the notice at its 6 If no exceptions are filed as provided by Sec 102 .46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses 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." (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all parties had an opportunity to present evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and we have been ordered 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 accompany union representatives during conversations on a jobsite with employees where said representatives have entered the jobsite for the pur- pose of servicing employees and policing contracts with us or our subcontractors. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employess in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. MAYER GROUP, INC.