Norquay Construction, Inc.

National Labor Relations Board - Board Decisions

Apr 16, 2013

359 N.L.R.B. 750 (N.L.R.B. 2013)

750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 93
Norquay Construction, Inc. and Thomas DeMott.
Case 28–CA–023412
April 16, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On December 6, 2011, Administrative Law Judge La-
na H. Parke issued the attached decision. The Acting
General Counsel filed exceptions and a supporting brief,
the Respondent filed an opposition to those exceptions,
and the Acting General Counsel filed a reply brief.
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 only
to the extent consistent with this decision and to adopt
the judge’s recommended Order as modified and set
forth in full below.
1

I. BACKGROUND
In 2010 and 2011, the Respondent, a general contrac-
tor in the building and construction industry, was per-
forming work on a construction contract with the city of
Phoenix to renovate the city’s municipal bus station on
Central Avenue (the Central Avenue Project).
2
The Re-
spondent itself was nonunion, but employees of its con-
crete subcontractor, Progressive Concrete Works, Inc.
(Progressive), were represented by a local union affiliate
of the Southwest Regional Council of Carpenters (the
Union). The Union’s collective-bargaining agreement
with Progressive provided that the Union’s representa-
tives were to have access during working hours to
jobsites where Progressive employees were working, so
long as they made reasonable efforts to notify Progres-
sive of their presence on the site and did not interfere
with work.

1 There are no exceptions to the judge’s finding that the Respondent
violated Sec. 8(a)(1) by ordering Union Representatives Thomas De-
Mott and Chuck Harrison to leave its construction jobsite. The Acting
General Counsel has excepted to the judge’s failure to find that the
Respondent also violated Sec. 8(a)(1) by summoning security guards
for the purpose of ejecting the union representatives. We find it unnec-
essary to pass on this exception, as the alleged violation, if found,
would be fully remedied by the cease-and-desist order we provide for
the unexcepted-to violation found above. For the reasons stated in her
decision, we adopt the judge’s finding that the Respondent did not
violate Sec. 8(a)(1) by promulgating and maintaining a rule prohibiting
solicitation at its construction site trailer office without an appointment.
We have modified the judge’s recommended Order to more closely
reflect the violations found and in keeping with the Board’s standard
remedial language. We have substituted a new notice to conform to the
Order as modified.
2 The Central Avenue Project was federally funded under the Ameri-
can Recovery and Reinvestment Act of 2009.
The Respondent’s project manager and superintendent,
Kenneth Scott Rankin, had his office in a trailer located
within a fenced-off area of the construction site. In late
September 2010,
3
he posted a sign on the door to the
trailer prohibiting solicitation without an appointment.
Rankin testified that he posted this sign because, during
the preceding weeks, a significant number of individuals
had entered the trailer without an appointment, interrupt-
ing his work. These individuals included job seekers and
agents of various companies (e.g., employee leasing
agencies, equipment rental companies, would-be subcon-
tractors, and construction materials companies). Also
among the visitors were various representatives of the
Union, who paid visits to Rankin in the trailer once or
twice a week.
Shortly before noon on October 1, Union Representa-
tives Thomas DeMott and Chuck Harrison entered the
trailer. Although they had not made an appointment,
Rankin opened the door to his office, which was situated
at one end of the trailer, and motioned them in.
4
DeMott
and Harrison identified themselves as representatives of
the Union and asked for subcontractor information on
some of the carpentry-related work. They credibly testi-
fied that if Rankin had told them the Respondent had
more subcontracting to bid out they would have given
him the Union’s list of area-standards contractors—i.e.,
signatory contractors whose employees the Union repre-
sented, and would have asked him if he would like the
Union to invite those contractors to bid on the projected
work. Rankin told DeMott and Harrison to look up the
information in a publicly available source, complained
that union representatives were “coming here” every day
of the week, and told them to leave the trailer. Harrison
warned that the Union could picket the site if it had a
labor dispute, but DeMott added that the Union would
demonstrate at a jobsite only if area-standards wages and
benefits were not being paid, and that the decision to
demonstrate would be made only by his and Harrison’s
bosses.
At this point, Rankin loudly and profanely demanded
that Harrison and DeMott leave the trailer, and the two
started walking towards the exit. As DeMott did so,
Rankin pushed him in the back. DeMott told Rankin not
to touch him and continued to the doorway. Harrison left
the trailer first. Then, as DeMott was standing in the
doorway steadying himself, Rankin pushed him from
behind, propelling him onto the trailer landing and down
the trailer’s metal steps. In his fall, DeMott struck his

3 All dates hereafter are in 2010.
4 The judge found that Rankin was expecting the arrival of a city
construction inspector at the time.
NORQUAY CONSTRUCTION, INC. 751
hand and neck on the railing of the trailer stairs. DeMott
telephoned his supervisor, who in turn called the Phoenix
police. When the police arrived, DeMott asked them to
arrest Rankin for assault, which they declined to do.
DeMott complained of severe musculoskeletal pain and
sought treatment at a clinic later that same day. He did
not work for the Union in any capacity after that day.
The judge dismissed the complaint allegations that the
Respondent violated Section 8(a)(1) by Rankin’s conduct
in physically ejecting DeMott from the trailer and inflict-
ing bodily injury upon him in the process. She character-
ized the conduct as “repugnant and inexcusable” and
observed that it “may have transgressed civil or criminal
laws,” but concluded that it did not violate the Act. We
disagree. For the reasons that follow, we find that De-
Mott and Harrison were engaged in Section 7 protected
activity when they visited the trailer and that Rankin’s
physical assault of DeMott in response to that activity
violated Section 8(a)(1).
5

II. ANALYSIS
The Act protects actions by unions “in furtherance of
an area-standards objective of protecting the economic
terms of employment enjoyed by the employees they
represent[].” Petrochem Insulation, Inc., 330 NLRB 47,
49 (1999), enfd. 240 F.3d 26 (D.C. Cir. 2001), cert. de-
nied 534 U.S. 992 (2001). The protection afforded a
union in furtherance of an area-standards objective nec-
essarily extends to its agents. Moreover, it applies re-
gardless of whether the union involved represents the
respondent’s employees at the time of the relevant area-
standards activity. Id. Here, DeMott and Harrison, as
agents of the Union, entered the Respondent’s trailer for
the purpose of soliciting the Respondent to use area-
standards contractors for future work. That activity was
“undisputedly protected under Section 7.” Id. More
specifically, the union agents sought to gain work for
employees of contractors with collective-bargaining rela-
tionships with the Union. This objective of expanding
employment opportunities for represented employees
“plainly seeks to further legitimate goals under Section
7.”
6

An employer violates Section 8(a)(1) when it interferes
with area-standards activity by, among other things, har-
assing or physically assaulting union agents engaged in

5 The Acting General Counsel excepts to the judge’s failure to find
that the Respondent additionally violated Sec. 8(a)(1) by inflicting
bodily injury on DeMott. He does not argue that exception on brief,
however. Accordingly, we deem the exception waived. See Board’s
Rules and Regulations Sec. 102.46(b)(2); Holsum de Puerto Rico, Inc.,
344 NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006).
6 J. A. Croson Co., 359 NLRB 19, 23 (2012) (discussing the protect-
ed nature of job targeting).
such activity. Roger D. Hughes Drywall, 344 NLRB
413, 415 (2005), and cases cited therein. Such actions
are unlawful regardless of whether they were witnessed
by any employees of the respondent employer. Id.
7

Rankin’s physical assault of DeMott while ejecting him
from the trailer plainly was in response to his protected
activity and interfered with that activity, and therefore
violated Section 8(a)(1) of the Act.
In defense of its conduct, the Respondent neither con-
tests the inherently protected character of the purpose of
the agents’ visit, nor argues that they engaged in any
threatening behavior. Rather, the Respondent contends
that its actions did not violate the Act because it had an
exclusionary property interest in its trailer sufficient to
justify the exclusion of DeMott and Harrison, who in any
event did not comply with its lawful rule prohibiting so-
licitation without an appointment. We disagree.
8
The
question of the Respondent’s asserted right to exclude
the union representatives from the trailer is irrelevant to
the disposition of this case because they were leaving the
trailer at the time of the assault. Indeed, DeMott was
standing at the threshold of the trailer door on his way
out when Rankin pushed him down the stairs. Assum-
ing, without finding, that the Respondent had a right to
exclude the two men from its trailer pursuant to
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), and Leslie
Homes, Inc., 316 NLRB 123, 128 (1995), affd. 68 F.3d
71 (3d Cir. 1995), Rankin initially did not invoke that
right, but instead invited the men into his trailer office.
Then, when they proceeded to engage in protected activi-
ty, Rankin asserted the assumed right to exclude them,
and they complied with his order to leave. Notwithstand-
ing their compliance, Rankin assaulted DeMott as he was
leaving the trailer. In these circumstances, any right to
deny DeMott and Harrison access to the trailer does not
constitute a defense to the 8(a)(1) violation we have
found.
9

7 See also McBride Construction Co., 122 NLRB 1634, 1635 (1959)
(employer’s assault on union organizer violated Sec. 8(a)(1), even if not
witnessed by employees); Arton Studios, Inc., 74 NLRB 1158, 1158,
1163 (1947) (same).
8 No party disputes the judge’s finding that the Union’s collective-
bargaining agreement with Progressive gave the Union access to at
least some portion of the jobsite to represent Progressive’s employees.
9 Accordingly, we need not address the Acting General Counsel’s
contention that the judge erred in finding that the Respondent estab-
lished that it possessed an exclusionary property interest in the trailer.
Peck/Jones Construction Corp., 338 NLRB 16 (2002), cited by the
judge for the proposition that the ejection of DeMott and Harrison from
the trailer was lawful, is distinguishable. The question presented there
was whether the employer violated the Act by excluding union business
agents from its construction site, despite a contractual access clause,
when the agents failed to comply with the employer’s reasonable, non-
discriminatory security rule requiring all visitors to sign in. As stated
above, the issue here is not whether the Respondent could have lawful-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 752
AMENDED REMEDY
Having found that the Respondent violated Section
8(a)(1) by ordering Union Representatives Chuck Harri-
son and Thomas DeMott to leave the Central Avenue
Project jobsite and by physically assaulting DeMott, we
shall order the Respondent to cease and desist and to take
such affirmative action as is necessary to effectuate the
policies of the Act. Specifically, if it is shown in com-
pliance proceedings that DeMott incurred medical ex-
penses and suffered a loss of pay and benefits as a result
of the unlawful assault, the Respondent shall reimburse
DeMott for his medical expenses and make him whole
for his lost pay and benefits. Backpay shall be computed
in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010). Reimbursement of medical
expenses shall be with interest, compounded daily as
prescribed in Kentucky River Medical Center, supra.
10

Finally, we shall require the Respondent to compensate
DeMott for any adverse income tax consequences of re-
ceiving his backpay in one lump sum as provided in La-
tino Express, Inc., 359 NLRB 518 (2012).
11

ORDER
The National Labor Relations Board orders that the
Respondent, Norquay Construction, Inc., Tempe, Arizo-
na, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unlawfully interfering with the Southwest Region-
al Council of Carpenters’ right to enter the Central Ave-
nue municipal bus station renovation site or any other

ly excluded DeMott and Harrison from its trailer, but whether the phys-
ical assault of DeMott as he was obeying Rankin’s order to leave the
trailer violated the Act.
10 The Acting General Counsel asserts that the make-whole remedy
for Rankin’s unlawful assault on DeMott must include backpay for any
wages lost during the period of time that DeMott has been and will be
unable to work as a result of injuries from the assault, and reimburse-
ment for any out-of-pocket medical expenses he incurred as a result of
such injuries. The Respondent opposes this remedy. Although we
agree in principle with the Acting General Counsel, it remains unsettled
whether DeMott suffered bodily injury due to the assault, as the judge
did not pass on that issue. As our amended remedy indicates, we leave
this issue of fact to compliance. See Freeman Decorating Co., 288
NLRB 1235, 1235 fn. 2 (1988); see also Nortech Waste, 336 NLRB
554, 554 fn. 2 (2001).
11 In part II of our decision in Latino Express, supra, we announced
that the Board would also require the filing of a report with the Social
Security Administration allocating backpay awards to the appropriate
calendar quarters. 359 NLRB 518, 519. However, part II of that deci-
sion “applies only to backpay payable by a current or former employer
of the discriminatee.” Id., slip op. at 2 fn. 10. The Respondent was not
DeMott’s employer, so the report-filing remedy is not applicable here.
jobsite for the purpose of representing employees under
an applicable collective-bargaining agreement.
(b) Physically assaulting representatives of the South-
west Regional Council of Carpenters who are lawfully
engaged in area-standards activity.
(c) 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) Make Thomas DeMott whole for any loss of pay
and benefits that he may have suffered as a result of the
physical assault on him by Kenneth Scott Rankin on or
about October 1, 2010, and reimburse DeMott for any
out-of-pocket medical expenses that he may have in-
curred as a result of the assault, in the manner set forth in
the amended remedy section of this decision.
(b) Compensate DeMott for any adverse income tax
consequences of receiving his backpay in one lump sum.
(c) Within 14 days after service by the Region, post at
its Tempe, Arizona office, and at any office it operates in
connection with the Central Avenue bus station project in
Phoenix, Arizona, copies of the attached notice marked
“Appendix.”
12
Copies of the notice, on forms provided
by the Regional Director for Region 28, after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily post-
ed. In addition to physical posting of paper notices, no-
tices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily com-
municates with its employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of busi-
ness or left the jobsite involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former
employees employed by the Respondent at any time
since October 1, 2010.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

12 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
NORQUAY CONSTRUCTION, INC. 753
APPENDIX
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT unlawfully interfere with the Southwest
Regional Council of Carpenters’ right to enter the Cen-
tral Avenue municipal bus station renovation site or any
other jobsite for the purpose of representing employees
under an applicable collective-bargaining agreement.
WE WILL NOT physically assault representatives of the
Southwest Regional Council of Carpenters who are law-
fully engaged in area-standards activity.
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.
WE WILL make Thomas DeMott whole, with interest,
for any loss of pay and benefits that he may have suf-
fered as a result of the physical assault on him by Ken-
neth Scott Rankin on or about October 1, 2010, and for
any out-of-pocket medical expenses that he may have
incurred as a result of the assault.
WE WILL compensate DeMott for any adverse income
tax consequences of receiving his backpay in one lump
sum.

NORQUAY CONSTRUCTION, INC.

Johannes Lauterborn, Esq., for the General Counsel.
Frederick C. Miner, Esq. (Littler Mendelson, PC.), of Phoenix,
Arizona, for the Respondent.
Thomas E. DeMott, of Anthem, Arizona, the Charging Party.
DECISION
I. STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. Pursuant to un-
fair labor practice charges filed by Thomas DeMott (DeMott),
an individual,1 the Regional Director for Region 28 of the Na-

1 DeMott at all relevant times was a representative and employee of
the Southwest Regional Council of Carpenters, a labor organization.
tional Labor Relations Board (Region 28 and the Board, respec-
tively) issued a complaint and notice of hearing (the complaint)
dated May 31, 2011. The complaint alleges that Norquay Con-
struction, Inc. (Respondent) violated Section 8(a)(1) of the
National Labor Relations Act (the Act). This case was tried in
Phoenix, Arizona, on October 5 and 6, 2011.
II. ISSUES
Did Respondent Violate Section 8(a)(1) of the
Act by the Following Conduct:
1. Promulgating and maintaining an overly broad and discrim-
inatory rule prohibiting solicitation without appointment at
Respondent’s jobsite.

2. By the following conduct, denying representatives of the
Southwest Regional Council of Carpenters, a labor organiza-
tion, access to Respondent’s jobsite and to employees repre-
sented by it who were performing work for employer-parties
to collective-bargaining agreements with it: which employers
performed services at Respondent’s jobsite:
a. Ordering union representatives to leave Respond-
ent’s jobsite.
b. Physically ejecting DeMott from the Respondent’s
construction trailer.
c. Inflicting bodily injury upon DeMott by pushing
him out of Respondent’s construction trailer and down its
stairs.
d. Summoning security guards to escort union repre-
sentatives off Respondent’s jobsite.
III. JURISDICTION
At all material times Respondent, an Arizona corporation,
with an office and place of business in Tempe, Arizona (Re-
spondent’s facility), has been engaged in business as a general
contractor in the building and construction industry doing
commercial, industrial, and residential construction. During the
12-month period ending March 22, Respondent, in conducting
its business operations, pursuant to a contract with the city of
Phoenix financed by funds from the Federal American Recov-
ery and Reinvestment Act of 2009, provided services for the
city of Phoenix, Arizona, valued in excess of $2.8 million for
work on the Phoenix central bus station. At all material times,
the Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act. At
all material times, the Southwest Regional Council of Carpen-
ters (the Union) has been a labor organization within the mean-
ing of Section 2(5) of the Act and an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
IV. FINDINGS OF FACT
Unless otherwise explained, findings of fact are based on
party admissions, stipulations, and uncontroverted testimony
regarding events occurring during the period of time relevant to
these proceedings. On the entire record, including my observa-
tion of the demeanor of the witnesses, and after considering the
briefs filed by the General Counsel and Respondent, I find the
following events occurred in the circumstances described below
during the period relevant to these proceedings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 754
The city of Phoenix, Arizona, contracted with Respondent to
renovate the city’s municipal transit facility, the Phoenix cen-
tral bus station (the project or the central bus station), located
on Central Avenue in Phoenix (the jobsite). The project was
ongoing during 2010–2011. The construction area of the
jobsite was fenced pursuant to the city’s project requirements,
and Respondent posted “No Trespassing” signs to prevent pub-
lic entry. Under Respondent’s contract with Phoenix, Respond-
ent had exclusive use of a staging area on city property, located
about 300 feet south of the construction site. A tall fence, sepa-
rate from the construction site fencing, surrounded the staging
area, which was accessible through a 20-foot opening. In the
staging area, Respondent placed a 24-by-8-foot mobile con-
struction trailer that served as its jobsite offices (the construc-
tion trailer).
The construction trailer stood 4–5 feet off the ground. The
trailer’s 3-foot wide entry door was accessible by a metal stair-
way parallel to and abutting the trailer. The stairway had four
stairs rising to a metal landing measuring approximately 3 by 4
feet positioned immediately in front of the doorway. The
stairway landing was not flush with the trailer door, requiring
an approximately 3-inch step up for entry to the trailer.2 Metal
bars surrounded the stairway perimeters, providing hand rail-
ings for the stairs and landing and restricting the trailer door
from opening outward more than 90 degrees. On the side of the
trailer at the foot of the stairway, Respondent posted a company
banner identifying the trailer as the offices of Norquay Con-
struction and setting out its Tempe address and telephone and
FAX numbers.
Respondent contracted with various subcontractors, includ-
ing Progressive Concrete Works, Inc. (Progressive Concrete) to
perform work on the project. In October 2010 Progressive
Concrete employed 12 workers at the jobsite. Progressive
Concrete was signatory to a collective-bargaining agreement
(Progressive Concrete CBA) with the Southwest Regional
Council of Carpenters (the Union).3 Respondent was not signa-
tory to any collective-bargaining agreement with the Union.
The Progressive Concrete CBA provided for union-
representative access to company jobsites during working hours
upon reasonable effort to advise Progressive Concrete of union-
representative presence and without interference with work. In
the case of a secured access jobsite, such as the project, the
Progressive Concrete CBA provided that where persons enter-
ing the project had to be checked through a guarded gate or
similar situation, Progressive Concrete was to make arrange-
ments for union representatives to enter the project. No evi-
dence was adduced that the Union asked Progressive Concrete
to make, or that Progressive Concrete made, any arrangements
for union representatives to enter the jobsite or that union rep-
resentatives visited Progressive Concrete employees on the
jobsite.

2 The step up estimation is based on photographs of the trailer taken
on October 1.
3 The employees of two other subcontractors worked at the jobsite in
October 2010; those subcontractors were not signatory to contracts with
the Union.
From August 2010 to August 2011, Kenneth Scott Rankin
(Rankin) served as Respondent’s superintendent and project
manager, utilizing the construction trailer served as his admin-
istrative center. It contained two office areas: a rear area where
Rankin’s office was situated and a front or lobby area, out of
which the trailer’s entry door opened.
During August 2010, significant numbers of solicitors called
at the construction trailer.4 Among the visitors were various
representatives of the Union who came weekly to the construc-
tion trailer and engaged Rankin in desultory conversation for
15–20 minutes per visit. In September, union representative
visits increased. Rankin thought the stream of visitors to the
construction trailer wasted his time. In late September, Rankin
posted on the entry door the following sign to which was af-
fixed his business card containing his email address and his
company cell phone number:
NO
HIRING
ON-SITE
ABSOLUTELY NO
SOLICITATION
W/O
APPOINTMENT
On October 1, 2010, the Union assigned Representatives
DeMott and Chuck Harrison (Harrison) the routine job of visit-
ing assigned construction jobsites to speak to the respective
general contractors. The Union gave the representatives “pro-
files” of the jobs they were to visit. Each profile named the
jobsite general contractor and listed known subcontractors
working the jobsite. A profile’s purpose was to aid union rep-
resentatives in discussing contract concerns with represented
subcontractor employees and/or to promote union interest
among unrepresented subcontractor employees. The represent-
atives also carried listings of various union-signatory contrac-
tors, which the representatives were expected to give to general
contractors to advise them of area-standards contractors availa-
ble to meet a construction project’s subcontracting needs. One
of the October 1 profiles assigned to DeMott and Harrison
named Respondent as the general contractor on the central bus
station jobsite and its concrete subcontractor, Progressive Con-
crete, as a signatory company.
On the morning of October 1, 2010, 12 employees of Pro-
gressive Concrete were at the jobsite running a concrete pour.
At about 11:30 a.m., without having made an appointment,
Union Representatives DeMott and Harrison arrived at the
Respondent’s jobsite and went directly to the construction trail-
er. DeMott and Harrison intended to find out from Rankin
what if any subcontracting work the Company had yet to bid
out. If Rankin told them he planned to hold future subcontract
bidding, the representatives planned to give Rankin the pre-
pared listing of area-standards contractors and to ask him if he

4 Solicitors included representatives of labor companies, rental
equipment companies, contract-seeking subcontractors, and construc-
tion materials companies. Employment seekers frequently sought
interviews with Rankin at the construction trailer.
NORQUAY CONSTRUCTION, INC. 755
would like the Union to invite them to bid on the projected
work.5
Rankin, DeMott, and Harrison testified of the events that oc-
curred after DeMott and Harrison arrived at the construction
trailer. I found both DeMott and Harrison to be candid, relia-
ble, and mainly corroborative witnesses. Much of Rankin’s
testimony was essentially consistent with that of DeMott and
Harrison, but where Rankin’s testimony differs materially from
that of DeMott and Harrison, I credit DeMott and Harrison
except as otherwise noted. The following account is a reasona-
ble amalgamation of the credible testimony of DeMott and
Harrison.
Upon reaching the trailer, DeMott with Harrison behind him
climbed the stairway, knocked at, and then opened, the un-
locked entry door. Two children watching television inside the
trailer pointed to the rear area. Just then Rankin, who was
working a half day and expecting the arrival of a Phoenix con-
struction inspector, opened the door from his office and before
the representatives could identify themselves, motioned them
into his office. DeMott walked to the door of the office and
said they would like to ask Rankin a couple of questions. Ran-
kin invited them into his office. DeMott and Harrison identi-
fied themselves as representatives of the Union and said they
were looking for subcontractor information on some of the
carpentry-related crafts. Rankin said, “If you want any infor-
mation on this jobsite, you can look it up on the Dodge Re-
ports.”6 Rankin told DeMott and Harrison, “You [representa-
tives from the Union] are coming here Monday, Tuesday,
Wednesday, Thursday, Friday, Saturday, Sunday.” He pointed
out that the notice on the trailer door asked visitors or solicitors
to make an appointment. Rankin said he was trying to get some
work done and told them to leave the trailer.
Harrison told Rankin that if they had a labor dispute, the Un-
ion could picket the job. DeMott, however, assured Rankin that
the Union would demonstrate at the jobsite only if a contractor
there was not paying area-standard wages and benefits and such
a decision would only be made by his and Harrison’s bosses.
Loudly and profanely, Rankin demanded the two representa-
tives leave the trailer. Harrison reiterated that the representa-
tives were just looking for subcontractor information, but Ran-
kin repeatedly ordered them out of his trailer.
Harrison urged DeMott to leave and walked toward the exit.
DeMott followed, telling Rankin, “We have a federal right to
be on the project.”7 As DeMott moved toward the exit, Rankin
pushed him in the back. DeMott told Rankin not to touch him
and continued to the doorway. At the door, DeMott steadied
himself on the doorframe before stepping onto the stairway

5 Harrison testified that another purpose of the October 1 visit was to
get information about Progressive Concrete and that the representatives
usually checked in with the superintendent before going onto a jobsite.
6 The Dodge Reports were nationwide area listings of construction
work to enable contractors to bid on construction jobs but did not pro-
vide the names of subcontractors on specific projects.
7 DeMott testified that he added, “We should be able to talk to the
workers.” Harrison did not corroborate this statement, which is incon-
gruous with the subcontractor-focus of the interchange. I do not, there-
fore, credit DeMott’s testimony that he said anything about talking to
any workers.
landing. As DeMott steadied himself, Rankin grasped his up-
per right arm from behind and, pushing him hard in the middle
of his upper back, propelled him onto the landing and down the
stairs.8 During the fall, DeMott struck his neck and hand on the
railing. Rankin called to two city of Phoenix security guards,
saying he needed help and telling one of them he wanted to
make sure the two representatives got off the property.
There is no evidence the security guards did anything to en-
courage DeMott and Harrison to leave the jobsite, and the two
did not, in fact, leave the property. DeMott telephoned his
supervisor who in turn called the police. DeMott retrieved his
camera from his car and took pictures. When the police ar-
rived, DeMott asked the police to arrest Rankin for assault,
which they declined to do.
Immediately following his fall on October 1, 2010, DeMott
experienced severe musculoskeletal pain, and later that day
sought treatment at an urgent care facility.9 In the following
weeks, DeMott filed a claim with the California Department of
Workers’ Compensation (DWC), pursuant to which he received
additional medical treatment, including physical therapy. De-
Mott did not work again in any capacity after October 1, 2010.
In early February 2011, DeMott’s DWC claim was denied, and
he was released to return to work with no physical limitations.
Shortly thereafter, the Union informed DeMott that it had no
position available for him.
V. DISCUSSION
The Board requires general construction contractors to grant
union representatives access to jobsites to enable the Union to
carry out representational duties owed to a unionized subcon-
tractor’s employees pursuant to the access provisions of a labor
agreement between the subcontractor and a union. The Board
reasons that the general contractor, “by soliciting other employ-
ers to perform work at the jobsite, ‘invited’ subcontractors . . .
onto the jobsite, and thus subjected its ‘property rights’ to the
[u]nion’s contractual ‘access’ rights with those subcontractors.”
CDK Contracting Co., 308 NLRB 1117 (1992). See also Wol-
gast Corp. v. NLRB, 349 F.3d 250 (6th Cir. 2003), enfg. 334
NLRB 203 (2001); Ambrose Electric, 330 NLRB 78 (1999). In
Swardson Painting Co., 340 NLRB 179, 179–180 (2003), the
Board admonished:

An employer who denies nonemployee union representatives
access to private property for purposes related to the exercise

8 Rankin testified that DeMott, with fists clenched at his side,
“squared off . . . in an aggressive stance.” Rankin grasped the back of
DeMott’s upper arm and forearm and escorted him to the doorway.
From the ground facing the entry door, Harrison told Rankin he was
just a f—ing a—hole, and Rankin released his hold on DeMott. Rankin
believed that DeMott intentionally fell. I do not accept Rankin’s testi-
mony.
9 At the time of the fall, DeMott had existing back and hip problems,
having had prior neck surgery with a 70-day work absence. Notwith-
standing his continuing back impairment, DeMott resumed work with
the Union with no physical restrictions and continued to perform his
usual and customary work for the Union until October 1, 2010. Be-
tween May 2009 and October 2010, DeMott received seven injections
to his back and hip, the last of which was administered on September
10, 2010.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 756
of employees’ Section 7 rights bears a threshold burden of es-
tablishing that, at the time it denied access, it had a property
interest that entitled it to exclude individuals from the proper-
ty [citations omitted]. If the employer fails to meet this
threshold burden, there is no actual conflict between private
property rights and Section 7 rights, and its actions therefore
will be found to violate Section 8(a)(1) of the Act.

Absent a showing of an exclusionary property interest, analysis
under Lechmere, Inc. v. NLRB, 502 U.S. 527, 538 (1992), is not
required.10
Even where a general contractor, having subjected its proper-
ty rights to a union’s contractual access rights with subcontrac-
tors, has no exclusionary property interest in its jobsites, a un-
ion’s right of access is not without limitation. A contractor has
a right to require union representatives to submit to reasonable
and nondiscriminatory restrictions, such as not interfering with
employees’ work or having to check in at a jobsite office. Am-
brose Electric, supra at 78; Peck/Jones Construction Corp., 338
NLRB 16 (2002), citing Wolgast Corp., 334 NLRB 203 (2001)
(union agents were not entitled to enforce their contractual
access right when they failed to follow general contractor’s
reasonable and nondiscriminatory sign-in rule).
The facts in this case prompt discussion of two issues the
Board has considered in construction jobsite access cases: (1)
whether on October 1, 2010, Respondent had an exclusionary
property interest in the central bus jobsite and/or its construc-
tion trailer that permitted Respondent to restrict access to the
jobsite and/or the construction trailer, (2) whether DeMott and
Harrison accessed the construction trailer on October 1, 2010,
for a purpose related to the exercise of employees’ Section 7
rights, and (3) assuming no exclusionary property interest ex-
isted, whether Respondent had nonetheless set reasonable and
nondiscriminatory restrictions on access to its construction
trailer that the Union was obligated to follow.
Inasmuch as Respondent invited Progressive Concrete to
perform work at the central bus jobsite, it subjected any argua-
ble property rights in the jobsite to the Union’s contractual
access rights with Progressive Concrete. Respondent has not,
therefore, met its threshold burden of showing an exclusionary
property interest in the central bus jobsite where Progressive
Concrete employees were working. Consequently, Respondent
could not lawfully restrict representatives of the Union from
accessing the jobsite to visit or otherwise to provide representa-
tional services to Progressive Concrete’s employees.
While Respondent had no exclusionary property interest in
the construction area of the central bus jobsite where invited
subcontractors worked, it does not automatically follow that
Respondent had no exclusionary property interest in any other
part or component of the jobsite. By contract, the city of Phoe-
nix allowed Respondent the exclusive use of a staging area at
the jobsite, in which area Respondent placed its construction

10 Lechmere holds that where access to an employer’s private proper-
ty is sought by nonemployee union organizers seeking to exercise Sec.
7 rights “derivatively,” the threshold question is whether the employees
are otherwise inaccessible. Id. at 537–538. Only if an inaccessibility
showing is made must employee Sec. 7 rights and employer property
rights be balanced. Id. at 538.
trailer and administrative office. There is no evidence that
Progressive Concrete or any other subcontractor was invited to
perform work in the staging area, particularly at or in the con-
struction trailer. In those circumstances, Respondent has
shown that it had an exclusionary property interest in its con-
struction trailer. Since jobsite employees were not inaccessible
by virtue of Respondent’s exercising its exclusionary property
interest in its construction trailer, Respondent was free to deny,
nondiscriminatorily, access to the trailer.
Even assuming Respondent had not established an exclu-
sionary property interest in the construction trailer, the Union’s
contractual right of access was not without limitation, as noted
above. Access could properly be limited to purposes relating to
represented employees’ Section 7 rights and be circumscribed
by reasonable and nondiscriminatory restrictions.
There is no evidence that DeMott and/or Harrison’s purpose
in visiting Respondent’s trailer on October 1 related to the ex-
ercise of employees’ Section 7 rights. It is clear that DeMott
and Harrison’s objective in visiting the trailer was to glean
from Rankin information about Respondent’s subcontracting
plans. As followup, the two representatives intended to present
to Rankin a prepared list of area-standards subcontractors and
to encourage him to select from the list when filling any sub-
contractor openings. That objective did not relate to the exer-
cise of employees’ Section 7 rights and did not, therefore, pro-
vide any Section 7-protected basis for accessing the trailer.11
DeMott testified that one purpose of visiting the trailer was
to extend Respondent the courtesy of checking in with the con-
struction supervisor before talking to Progressive Concrete
employees. If union representatives were required to check in
at the construction trailer before entering the jobsite to provide
representational services, then accessing the trailer would be
related to the exercise of employees’ Section 7 rights. But
there is no evidence of any such check in requirement.12 More-
over, any courtesy check in could have been easily accom-
plished by observing the constraints posted on the trailer and
telephoning Rankin at his posted cell phone number. The no-
solicitation notice posted on the trailer entry door simply re-
stricted solicitation without appointment. The notice was non-
discriminatory on its face, and there is no evidence it was ap-
plied discriminatorily or that its conditions were unreasonable.
The notice merely required all persons who wanted to meet
with Rankin to make appointments, the scheduling for which
Rankin made himself readily available by posting his cell
phone number.

11 Wolgast Corp., 334 NLRB 203 (2001), cited by the General
Counsel is inapposite. In Wolgast, the union accessed the jobsite gener-
ally, i.e., the actual location where represented employees worked, in
order to investigate a safety complaint lodged by a union member
jobsite worker; both the location and the purpose were clearly linked to
Sec. 7 protections.
12 The General Counsel argues that sec. 2620 of the Union’s agree-
ment with Progressive Concrete required the Union “to make every
reasonable effort to advise the contractor or his representative of his
presence on the project.” That provision clearly applies to the contrac-
tor, Progressive Concrete; the agreement is silent as to any obligation
owed the general contractor.
NORQUAY CONSTRUCTION, INC. 757
Here, Respondent had an exclusionary property interest in its
construction trailer, which, particularly given the purpose and
circumstances of DeMott and Harrison’s October 1, 2010 visit,
permitted Respondent to deny them access. Alternatively, Re-
spondent set reasonable and nondiscriminatory restrictions on
DeMott and Harrison’s access to its construction trailer, the
failure to follow which lost the two representatives access enti-
tlement. Because DeMott and Harrison made no effort to
schedule a visit before entering the construction trailer, they
cannot claim that their ejection from it violated their contractual
right of access. See Peck/Jones Construction Corp., supra at
17. Under either scenario, Respondent could properly bar De-
Mott and Harrison from the trailer. In these circumstances,
while Rankin’s violent expulsion of DeMott from the construc-
tion trailer was repugnant and inexcusable and while it may
have transgressed civil or criminal laws, it did not violate the
Act.
The complaint alleges that Respondent promulgated and
maintained an overly broad and discriminatory rule prohibiting
solicitation at Respondent’s jobsite without appointment. The
only evidence of any such rule is the no-solicitation sign posted
on the construction trailer. The no-solicitation sign, which I
have found set reasonable and nondiscriminatory limitations on
solicitation, cannot, of itself, prove the allegation. No evidence
was adduced that the no-solicitation notice was posted any-
where at the jobsite other than at the trailer, and there is no
evidence Respondent required appointments for solicitations
conducted on the jobsite generally. Further, no evidence was
adduced that the construction trailer served as a gateway to the
jobsite, thereby compelling jobsite-visit screening through the
trailer. Finally, a reasonable reading of the notice justifies an
inference that it applied only to individuals seeking to meet
with occupants of the construction trailer.
The complaint alleges that Respondent violated Section
8(a)(1) of the Act by ordering the union representatives off the
jobsite. The evidence shows that after Rankin forcibly expelled
DeMott from the construction trailer, he told a security guard to
make sure the two union representatives got off the property. It
is reasonable to infer that Rankin’s order encompassed the en-
tire jobsite and not just the trailer from which the representa-
tives had already been removed. As already discussed, the
Union had an access right to the jobsite, with which access
right Rankin’s order interfered. Although no employee was
present to hear Rankin’s order, the Board holds to the principle
that acts of unions and their agents can be protected under the
Act. Golden Stevedoring Co., 335 NLRB 410, 414 (2001),
citations omitted. As the Board observed, it would be “curious
and myopic” to hold otherwise, for a contrary interpretation
would mean that “conduct that is protected when engaged in by
. . . employees . . . would lose its protection if engaged in by the
employees’ union on their behalf.” BE & K Construction Co.,
329 NLRB 717, 724 (1999), enfd. 246 F.3d 619 (6th Cir. 2001).
It is immaterial that the security guard failed to execute Ran-
kin’s order. Accordingly, I find that when Rankin directed a
security guard to escort DeMott and Harrison off the jobsite,
Respondent violated Section 8(a)(1).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce and
in a business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by or-
dering union representatives to leave a construction jobsite in
which it had no exclusionary property interest.
4. The unfair labor practices set forth above affect commerce
within the meaning of Section 8(a)(1) and Section 2(6) and (7)
of the Act.
REMEDY
Having found Respondent has engaged in certain unfair la-
bor practices, I find it must be ordered to cease and desist and
to post appropriate notices in the manner set forth hereafter.
[Recommended Order omitted from publication.]