           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2         Wolgast Corp. v. NLRB                Nos. 01-1904/2056
        ELECTRONIC CITATION: 2003 FED App. 0389P (6th Cir.)
                    File Name: 03a0389p.06                                   Before: MERRITT and DAUGHTREY, Circuit Judges;
                                                                                        RUSSELL, District Judge.**
UNITED STATES COURT OF APPEALS                                                                 _________________
                  FOR THE SIXTH CIRCUIT                                                             COUNSEL
                    _________________
                                                                         ARGUED: David J. Masud, MASUD, GILBERT &
 WOLGAST CORPORATION ,          X                                        PATTERSON, Saginaw, Michigan, for Petitioner. Ruth
                                                                         Burdick, NATIONAL LABOR RELATIONS BOARD,
                    Petitioner/ -                                        APPELLATE COURT BRANCH, Washington, D.C., for
           Cross-Respondent, -                                           Respondent. ON BRIEF: David J. Masud, Kraig M.
                                 -  Nos. 01-1904/2056
                                 -                                       Schutter, MASUD, GILBERT & PATTERSON, Saginaw,
           v.                     >                                      Michigan, for Petitioner.  Ruth Burdick, Aileen A.
                                 ,                                       Armstrong, David Habenstreit, NATIONAL LABOR
                                 -                                       RELATIONS BOARD, Washington, D.C., for Respondent.
 NATIONAL LABOR RELATIONS -
                                                                         Maurice Baskin, VENABLE, BAETJER, HOWARD &
 BOARD ,                         -                                       CIVILETTI, Washington, D.C., for Amicus Curiae.
                  Respondent/ -
              Cross-Petitioner. -                                                              _________________
                                 -
                                N                                                                  OPINION
     On Petition for Review and Cross-Application                                              _________________
      for Enforcement of an Order of the National
                 Labor Relations Board.                                    MERRITT, Circuit Judge. The central issue in this case is
                    No. 7-CA-42474                                       whether nonemployee union representatives of the organized
                                                                         employees of a construction subcontractor, whose collective
                  Argued: December 12, 2002                              bargaining agreement contains a union access clause, can be
                                                                         categorically barred from a construction jobsite by the
           Decided and Filed:      September 16, 2003*                   contractor with the asserted property interest. Wolgast
                                                                         Corporation petitions this Court for review of the order of the
                                                                         National Labor Relations Board finding that Wolgast
                                                                         committed an unfair labor practice by barring union
                                                                         representatives from accessing a construction jobsite, and the
                                                                         Board has cross-petitioned for enforcement of its order. We

    *
      This decision was originally issued as an “unpublished decision”        **
filed on September 16, 2003. On October 28, 2003, the court designated        The Honorable Thomas B. Russell, United States District Judge for
the opinion as one recommended for full-text publication.                the Western District of Kentucky, sitting by designation.

                                  1
Nos. 01-1904/2056               Wolgast Corp. v. NLRB           3   4    Wolgast Corp. v. NLRB                 Nos. 01-1904/2056

conclude that Wolgast’s petition is without merit and               Horner went to the site to check on the scaffolding and sign
therefore issue an order of enforcement.                            up the employee. Once again, Grandy ordered them to leave
                                                                    the property, this time “ranting and raving” and asking “what
                      I. Background                                 the fuck are you guys doing here again?” Grandy grabbed
                                                                    Turnwald’s arm and pulled him down a hallway until Horner
  Wolgast, a non-union general contractor that hires both           stepped between them. Grandy continued down the hallway,
union and non-union subcontractors to do construction work,         and Turnwald proceeded to sign up the new employee at a
was hired by Cinema Hollywood, LLC to construct an                  makeshift table made of a sheet of plywood resting on bats of
addition to a movie complex. Wolgast subcontracted with             insulation. During this process, Binder came in and placed
Acoustical Arts, Inc., a union contractor, for the required         his set of tools on the makeshift table. At some point, Horner
acoustical installation. Acoustical’s carpenter employees           and Binder stepped outside for a moment. When Turnwald
were represented by Local 706, United Brotherhood of                had a question about the paperwork, he also stepped outside
Carpenters and Joiners of America, AFL-CIO. Article V,              to ask Horner how to fill it out. As they both began to reenter
section c of the Carpenters Local 706 collective bargaining         the building, Grandy stood in the doorway blocking their
agreement states, in relevant part:                                 access, stating “You guys get the fuck out of here, you’re not
                                                                    coming back in.” Turnwald brushed past Grandy and went
  [B]usiness representatives shall have access to all jobs at       back in to finish the paperwork. Grandy then said to the new
  all times where possible. A representative of the                 employee, who was on his knees by the makeshift table filling
  Michigan Regional Council of Carpenters shall have the            out the paperwork, “That’s all the fucking union does is take
  right to visit the job during working hours to interview          your money,” to which the employee replied, “No, the
  the employer, steward, or men at work, but shall not              union’s the only way I can get ahead.” Announcing that he
  hinder the progress of the work.                                  was going to “clean up this area right here,” Grandy reached
                                                                    down, grabbed the makeshift table and forcefully flipped it
(J.A. at 85.) On October 13, 1999, Leon Turnwald, the               over so everything on it, including Binder’s tools, flew off
business representative and organizer for Local 706 went with       and onto Turnwald. At this, Turnwald and Horner left the
Robert Horner, the business representative from Local 1045,         site, apparently abandoning their plan to check the safety of
the union representing the lathers employed by Acoustical, to       the scaffolding.
the Cinema Hollywood job site “to check on” a new
Acoustical employee. According to Turnwald, Brian Grandy,             The administrative law judge ruled that Wolgast violated
a supervisory employee of Wolgast and the project’s                 section 8(a)(1) of the Act by interfering with Turnwald’s
superintendent, ordered Turnwald off the property. Before           access to the jobsite. Relying on CDK Contracting, 308
leaving the property, Turnwald discovered that the new              N.L.R.B. 1117 (1992), the judge ruled that the general
employee had already left the site before the end of his shift.     construction contractor with the asserted property interest is
That evening, Turnwald spoke to the employee by telephone,          obligated as a matter of labor law to yield its interest so that
who said he could not work at the site because the scaffolding      the subcontractor’s employees’ section 7 right to be
was dangerous. Turnwald then spoke to John Binder, the              represented by their chosen union and to receive the agreed-
owner of Acoustical, who said the scaffolding was safe.             upon benefits of that representation may be fully
Turnwald also learned that they had forgotten to sign up a          implemented. The judge ordered Wolgast to allow Local 706
new lather while at the site. The next day, Turnwald and            access to Acoustical employees when requested, subject to
Nos. 01-1904/2056               Wolgast Corp. v. NLRB        5    6      Wolgast Corp. v. NLRB              Nos. 01-1904/2056

any “reasonable and nondiscriminatory rules pertaining to         the two.” Hudgens v. NLRB, 424 U.S. 507, 521 (1976)
nonemployee access” Wolgast may put in place. On appeal           (internal quotations omitted). As always, accommodation
to the Board, Wolgast argued that CDK Contracting was             between employees’ § 7 rights and employers’s property
wrongly decided and that this case is instead controlled by       rights “must be obtained with as little destruction of the one
Lechmere v. N.L.R.B., 501 U.S. 527 (1992). There, the             as is consistent with the maintenance of the other.” NLRB v.
Supreme Court held that an employer may categorically             Babcock & Wilcox, 351 U.S. 105 (1956). We turn first to the
exclude nonemployee union organizers from its property            Board’s determination that Lechmere does not determine the
subject to two narrow exceptions not applicable here. Finding     outcome of this case as a matter of law.
that this case, like CDK Contracting, presents “substantially
different issues and considerations” from those presented in        In Lechmere, union organizers distributed handbills on the
Lechmere, the Board rejected Wolgast’s argument and               windshields of cars parked in a shopping plaza parking lot as
affirmed.                                                         part of an effort to organize the employees of Lechmere,
                                                                  Inc.’s retail store located at the shopping plaza. Lechmere
                        II. Analysis                              personnel removed the handbills and asked the union
                                                                  organizers to leave. The administrative law judge ruled that
  Section 8(a)(1) of the National Labor Relations Act             Lechmere had violated section 8 by barring the nonemployee
provides that “it shall be an unfair labor practice for an        union organizers from its property. The Board affirmed,
employer [] to interfere with, restrain, or coerce employees in   relying on a multifactor balancing test developed in Jean
the exercise of the rights guaranteed in section [7 of this       Country, 291 NLRB 11, 14 (1988). The Supreme Court
Act].” 29 U.S.C. § 158(a)(1). Section 7 provides in pertinent     denied enforcement of the Board’s order, holding that, at least
part that “employees shall have the right to self-organization,   as applied to nonemployee union organizers, Jean Country
to form, join, or assist labor organizations, to bargain          impermissibly eliminated the threshold stage of the inquiry by
collectively through representatives of their own choosing,       failing to make a distinction between employees and
and to engage in other concerted activities for the purpose of    nonemployees of the targeted employer. See Lechmere, 502
collective bargaining or other mutual aid or protection.” 29      U.S. at 538 (citing Babcock & Wilcox, 351 U.S. at 112). The
U.S.C. § 157. An employer therefore violates section 8 and        Court reiterated the “distinction of substance” established in
commits an unfair labor practice where it restrains or            Babcock & Wilcox between the organizing activities of
interferes with employees’ section 7 rights. Lechmere, 502        employees and nonemployees: “As a rule, then, an employer
U.S. at 531-32.                                                   cannot be compelled to allow distribution of union literature
                                                                  by nonemployee organizers on his property.” Id. at 533. As
  We review de novo the Board’s interpretation of Supreme         explained by the Court:
Court and Sixth Circuit decisions, and uphold the Board’s
“reasonably defensible” construction of the Act in the absence        To say that our cases require accommodation between
of binding precedent. See Meijer v. NLRB, 130 F.3d 1209,              employees’ and employers’ rights is a true but
1212 (6th Cir. 1997). In determining whether the Board’s              incomplete statement, for the cases also go far in
construction of the Act is “reasonably defensible,” we keep in        establishing the locus of that accommodation where
mind that the “task of the Board, subject to review by the            nonemployee organizing is at issue. So long as
courts, is to resolve conflicts between § 7 rights and private        nonemployee union organizers have reasonable access to
property rights and to seek a proper accommodation between            employees outside an employer’s property, the requisite
Nos. 01-1904/2056               Wolgast Corp. v. NLRB         7   8      Wolgast Corp. v. NLRB               Nos. 01-1904/2056

  accommodation has taken place. It is only where such                which locus the working conditions of the
  access is infeasible that it becomes necessary and proper           subcontractors’ employees are necessarily established.
  to take the accommodation to the next level, balancing              It may therefore be reasonably inferred that Respondents,
  the employees’ and employers’ rights . . . .                        by hiring such subcontractors, thereby “necessarily
                                                                      submitted their own property rights to whatever activity,
Id. at 538 (emphasis in original).                                    lawful and protected by the Act,” might be engaged in by
                                                                      union business agents in the performance of their duties
   Lechmere thus reaffirms that, in the generic situation             vis-a-vis these subcontractors who have contractually
presenting a conflict between the competing interests of              granted union business agents unrestricted access to the
employees and employers, the primary responsibility to make           site.
the proper accommodation lies with the Board, whose
determination is subject to review only for reasonableness. In    Villa Avila, 253 NLRB 76, 81 (1980) (quoting Hudgens v.
the specific case of nonemployee union organizers who             NLRB, 230 NLRB 414, 418 (1977) (on remand)). The Board
attempt to enter an employer’s property for purposes of           acknowledged that the union representatives were not
organizing, however, the Board does not even reach the            employees of the contractor or subcontractor, but reasoned
balancing stage of the inquiry: An employer may “post his         that under the factually distinct circumstances involving the
property against nonemployee distribution of union literature     subcontractor’s employees’ own § 7 right to union access
if [1] reasonable efforts by the union through other available    under a collective bargaining agreement and the union’s
channels of communication will enable it to reach the             manifest representative capacity regarding that same right,
employees with its message and [2] if the employer’s notice       balancing was appropriate and the represented employees’
or order does not discriminate against the union by allowing      right outweighed the contractor’s right to control the property.
other distribution.” Babcock & Wilcox, 351 U.S. at 112.           See id. at 80-81. According to the Board, the common and
                                                                  accepted procedures in place at construction sites requiring
  The Board’s pre-Lechmere decisions requiring the                that the union representatives give notice of their presence to
contractor to allow union access to its unionized                 the general contractor “effectively accommodate the interests
subcontractor’s jobsite are founded on its view that the          and obligations of all parties.” Id. at 81.
represented employees’ § 7 rights “include the right to receive
the various services of union business agents which services        Just a few months after Lechmere was decided, the Board
are necessary to police existing collective-bargaining            relied on C.E. Wylie Construction Co. and Villa Avila to
agreements or to negotiate new agreements.” See, e.g., Villa      reaffirm that a construction contractor must permit its
Avila, 253 NLRB 76, 80 (1980), enf’d. as modified, 673 F.2d       unionized subcontractor to allow union access pursuant to the
281 (9th Cir. 1982); see also C.E. Wylie Constr. Co., 295         collective bargaining agreement between the subcontractor
NLRB 1050, 1050 (1989). The administrative judge in Villa         and the union. See CDK Contracting, 308 NLRB at 1117.
Avila further explained that, by hiring unionized                 The Board again distinguished the Supreme Court’s general
subcontractors to perform work on the jobsite, the general        rule regarding nonemployee organizers as reaffirmed in
contractors                                                       Lechmere, stating that CDK Contracting presented
                                                                  “substantially different issues and considerations.” Id. Under
  have thereby invited these subcontractors to, in effect,        these particular circumstances, “access is necessary in order
  maintain a temporary place of business on the site, at          to investigate and to resolve contract compliance when the
Nos. 01-1904/2056               Wolgast Corp. v. NLRB         9    10       Wolgast Corp. v. NLRB                    Nos. 01-1904/2056

contract grants the union such access.” Id. (citing Villa Avila,   a non-union contractor); Cleveland Real Estate Partners v.
253 NLRB at 81). Unlike the situation in Lechmere, the             NLRB, 95 F.3d 457 (6th Cir. 1996), overruled on other
contractor, “by soliciting other employers to perform work a       grounds in NLRB v. Webcor Packaging, Inc., 118 F.3d 1115,
the jobsite, ‘invited’ subcontractors, and their respective        1119 (6th Cir. 1997) (applying Lechmere to handbilling by
subcontractors, onto the jobsite, and thus voluntarily             nonemployee union representatives urging a boycott of a
subjected its ‘property rights’ to the Union’s contractual         nonunion store at a strip mall).1
‘access’ rights with those contractors.” Id. As a result, “[t]he
Respondent [contractor] was not privileged to interfere with          In our view, Lechmere and the cases cited from our court
the contractual obligations of the subcontractors and the          are readily distinguishable from this case. Most significantly,
contractual rights of the unions that represented subcontractor    the union agent at issue here did not seek access for purposes
employees.” Id. Finally, without access pursuant to the            of organizing employees, handbilling patrons, boycotting, or
access provision, the “Union did not have a reasonable,            other similar activity in exercise of the union’s “derivative”
effective alternative means to enforce its contractual rights.”    § 7 rights. Rather, Turnwald sought access as the direct
Id.                                                                representative of the subcontractor’s employees under the
                                                                   authority of the collective bargaining agreement. In our view,
   Respondent Wolgast asserts here that the Board’s rule in        at issue here is the employees’ own undisputed § 7 right to
CDK Contracting stands as a “radical departure” from               negotiate and benefit from a collective bargaining agreement
Lechmere. In support, Wolgast points to the Court’s                which allows union access for purposes of investigating the
statement in Lechmere that, “by its plain terms, . . . the NLRA    premises and interviewing employees on-site. Neither
confers rights only on employees, not on unions or their           Lechmere nor any of our cases address union access for
nonemployee organizers.” 502 U.S. at 532 (emphasis in              representational purposes.
original). According to Wolgast, this statement provides a
“trump card” by predetermining that every nonemployee                In any event, we have stated elsewhere that Lechmere’s
union representative can be barred from its property,              statement that the Act “confers rights only on employees” is
regardless of his purpose or relationship with employees           not so expansive as Wolgast suggests.            In BE&K
located on the jobsite, in the same manner as the                  Construction Co. v. NLRB, 246 F.3d 619, 626-27 (2001),
nonemployee union organizer in Lechmere. Wolgast further           rev’d on other grounds, 536 U.S. 516 (2002), we were faced
points out that this court has construed Lechmere to extend        with the question whether a union whose members work for
beyond the purely organizational situation to apply to
situations involving other nonemployee union activities. See,
                                                                        1
e.g., Albertson’s Inc. v. NLRB, 301 D.3d 441, 454 (6th Cir.              W olgast also relies on NLRB v. Windemuller Electric, Inc., 34 F.3d
2002) (holding that, under Lechmere, an employer may bar           384 (6th Cir. 1994), in which a panel of this court relied on Lechmere to
nonemployee union representatives from distributing                hold that an employer can lawfully prevent its unionized employees from
                                                                   placing union stickers on their employer-owned hardhats. A later panel
handbills on the employer’s property informing the                 of this court rejected Windem uller’s reasoning, howe ver, inso far as it
employer’s patrons of the union’s economic strike with one         treated the employees’ right to wear union insignia as a matter of property
of the employer’s suppliers); Sandusky Mall v. NLRB, 242           rights under Lechmere rather than of employees’ organizational rights
F.3d 682, 686 (6th Cir. 2001) (applying Lechmere in a case         under Rep ublic Aviation. See Meijer Inc. v. NLRB, 130 F.3d 1209, 1217
involving “area standards” handbilling by nonemployee union        (6th Cir. 1997) (holding that under the balancing test in Rep ublic
                                                                   Aviation, 324 U.S. 793 (1945), “emp loyees have a right to we ar unio n
representatives urging shoppers not to patronize a store hiring    insignia” on employer-owned uniforms).
Nos. 01-1904/2056               Wolgast Corp. v. NLRB        11    12   Wolgast Corp. v. NLRB               Nos. 01-1904/2056

construction subcontractors possess a § 7 right that could         The administrative law judge found no credible evidence that
potentially be violated by the nonunion contractor-employer        there were such rules or that they were conveyed to the union
when the employer filed baseless lawsuits in retaliation for       agent. This finding was undisturbed by the Board, and we
the union’s activities. In concluding that unions possess such     cannot say it is clearly erroneous. We need not address
a § 7 right, we distinguished Lechmere as specifically             Wolgast’s other arguments, as they are wholly without merit.
involving nonemployee union organizers attempting to
distribute organizational literature on an employer’s property.                          III. Conclusion
Id. at 627. We further noted that, by allowing exceptions to
its rule, “the Court . . . recognized that § 7 of the Act, by        In CDK Contracting, the Board correctly concluded that
necessary implication, extended some legislative protection        Lechmere did not control the outcome of the case. In
to unions.” Id. at 626.                                            exercising its authority to strike the proper balance between
                                                                   the property interests of a construction contractor and the
   As a general matter, it is a reality inherent in construction   interests of the employees of its unionized subcontractors to
work that a construction subcontractor’s employees work on         benefit from their collective bargaining agreement, the Board
the property of another. The Board has set forth reasons that      has created a rule that is both “reasonably defensible” and in
adequately take into account the specific circumstances            accord with the guiding principle of labor law. Accordingly,
presented here, carefully considering the asserted property        we DENY Wolgast’s petition for review and GRANT the
rights of the contractor and the accommodations required           Board’s request for enforcement of its order.
when the contractor voluntarily hires unionized
subcontractors. Contrary to Wolgast’s suggestion, the Board
did not hold that a general contractor is “bound” to a contract
term to which it is not a party. Rather, it held that the
contractor may not interfere with the protected activity
relating to a union subcontractor and its employees in the
name of private property interests. See Hudgens, 424 U.S. at
510 nn.3 &11 (recognizing that “a statutory ‘employer’ may
violate § 8(a)(1) with respect to employees other than his
own”). We agree with the Board’s reasoning in Villa Avila
that, to the extent that general contractor interferes with the
duties of the union as representative of the subcontractor’s
employees, “so are the employees’ Section 7 rights
diminished.” 253 NLRB at 81. Under the circumstances
presented here, the Board’s balancing of the conflicting
interests in CDK Contracting is a reasonably defensible
interpretation of the Act.
  Finally, regarding Wolgast’s assertion that Turnwald
waived his access right because he did not follow Wolgast’s
rules for visiting the jobsite, we affirm the Board’s ruling.
