R & R Plaster & Drywall Co.

National Labor Relations Board - Board Decisions

Nov 23, 1999

330 N.L.R.B. 87 (N.L.R.B. 1999)

R & R PLASTER & DRYWALL CO. 87
R & R Plaster & Drywall Co., Inc. and Central Penn-
sylvania Regional Council of Carpenters, Local
287 a/w United Brotherhood of Carpenters and
Joiners of America, AFL–CIO. Cases 6–CA–
30309 and 6–CA–30323
November 23, 1999
ORDER DENYING MOTION
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On May 13, 1999, the Regional Director for Region 6
issued an order consolidating cases, consolidated com-
plaint, and notice of hearing in this proceeding (com-
plaint) alleging that the Respondent committed unfair
labor practices in violation of Section 8(a)(1) of the Act.
The Respondent filed an answer, denying the allegations
of the complaint.
Thereafter, the Respondent filed a motion to dismiss
the consolidated complaint and a supporting brief. The
General Counsel filed an opposition to the Respondent’s
motion.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully considered the allegations of the
complaint, the denials in the Respondent’s answer, and
the assertions made by the General Counsel and the Re-
spondent in their submissions, we find that there exist
genuine issues of material fact that would best be re-
solved after an evidentiary hearing before an administra-
tive law judge. Accordingly, we deny the Respondent’s
motion to dismiss the complaint.1
Member Hurtgen agrees with our denial of the Re-
spondent’s motion to dismiss paragraphs 7 and 8 of the
complaint.2 Member Hurtgen, however, argues that part
of paragraph 9 of the complaint should be dismissed.
For the reasons set forth below, we disagree.
Paragraph 9 of the complaint alleges that “[a]bout
January 27, 1999, the Respondent, by its agent, by letter,
threatened the arrest of union organizers for entering
onto property the Respondent does not control.” The
letter in question was written by the Respondent’s coun-
sel and addressed to the Union. The letter stated as fol-
lows:

1 To the extent that the Respondent seeks dismissal of the complaint
because of alleged bias by the Regional Director, the motion is denied
as lacking in merit.
2 These paragraphs contain the following allegations:
7. About August 31, 1998, Respondent, by [Foreman] Myers,
at Respondent’s Hanover [Pennsylvania] jobsite, instructed em-
ployees that they should return to work following their lunch
break by a specific alternative route in order that said employees
would avoid contact with representatives of the Union who were
present in the area of the customary route by which employees re-
turned to work.
8. About September 1, 1998, Respondent, by Myers, in a
parking lot of Hanover Hospital, in Hanover, Pennsylvania, told
an employee that said employee would not be considered for fu-
ture employment with Respondent because said employee had as-
sociated with representatives of the Union.

This office represents [the Respondent] which
has construction sites in and around the Harrisburg
area.
We are advised that your representative . . . has
been going upon the job sites of [the Respondent].
This is to advise you that our client and the general
contractor with whom it is working regard your op-
erators on their job sites as trespassers. Accordingly,
this is to refrain [sic] you from further trespassing
upon the job sites of [the Respondent].
Further trespassing will result in the arrest of
your personnel.

The relevant legal principles are well established. In
Indio Grocery Outlet, 323 NLRB 1138, 1141 (1997), the
Board reaffirmed that:

[I]n cases in which the exercise of Section 7 rights by
nonemployee union representatives is assertedly in
conflict with a respondent’s private property rights,
there is a threshold burden on the respondent to estab-
lish that it had, at the time it expelled the union repre-
sentatives, an interest which entitled it to exclude indi-
viduals from the property. [Emphasis in original.]

To determine the property interest, the Board explained in
Indio Grocery that “we look to the law that created and de-
fined the Respondent’s property interest, which is state,
rather than Federal law.” Id. Doing so, the Board found
that under the law of the state where the respondent’s store
was located the respondent did not have a right to exclude
union agents from the walkway in front of its store and from
its parking lot. Accordingly, the Board found that the re-
spondent violated Section 8(a)(1) by threatening to have the
union agents arrested if they did not cease engaging in Sec-
tion 7 activities on the walkway and parking lot.
The Board’s Indio Grocery decision was recently en-
forced by the Ninth Circuit. NLRB v. Indio Grocery Out-
let, 187 F.3d 1080 (1999). The court specifically upheld

[T]he Board’s rule, that in cases in which the exercise
of Section 7 rights by nonemployee union representa-
tives is assertedly in conflict with a respondent’s pri-
vate property rights, the respondent bears a threshold
burden to establish that it had, at the time it expelled the
union representatives, an interest which entitled it to
exclude individuals from the property. [187 F.3d at
1095.]3
3 Our dissenting colleague claims that “the General Counsel’s com-
plaint” determines the allocation of the burden of proof on the question
of whether the Respondent possessed a sufficient property interest to
exclude the union representatives. He cites no authority for this seem-
ingly novel proposition, and we know of none. We adhere to the Board
and court precedent cited above.
330 NLRB No. 22
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 88
Citing Indio Grocery, the Respondent argues that it did
not violate Section 8(a)(1) by threatening to have non-
employee union organizers arrested for trespassing be-
cause, under Pennsylvania law, it had a property interest
in its jobsites which entitled it to exclude individuals
from the property. Relying particularly on Hader v.
Coplay Cement Mfg. Co., 410 Pa. 139, 189 A.2d 271
(1963), the Respondent contends that Pennsylvania law
vests control over the worksite with the subcontractor,
not the owner of the property, and that “[t]his control
must include the ability to exclude nonemployees from
the subcontractor’s work area.” Contrary to our dissent-
ing colleague, we find that Hader does not require dis-
missal of any part of paragraph 9 of the complaint.
Hader involved a negligence suit brought by an em-
ployee of a company that had contracted to perform cer-
tain services for the owner of the land (the defendant).
The suit was for injuries sustained in the course of the
employee’s work. Examining the contract between the
company and the landowner, the Supreme Court of
Pennsylvania concluded that the company was an inde-
pendent contractor because it was not subject to control
by the landowner in the manner of performing the work.
Because, pursuant to the contract, the independent con-
tractor, not the landowner, had possession and control
“of the necessary area occupied by the work contem-
plated under the contract,” the court held that the land
owner was not liable for the injuries sustained by the
employee of the independent contractor. 410 Pa. at 151;
189 A.2d at 277.
Thus, Hader addresses the issue of the tort liability of
a landowner to an employee of an independent contrac-
tor. The issue raised by paragraph 9 of the complaint,
however, is one of state property law, not state tort law,
specifically whether a contractor has a right to exclude
individuals from the owner’s property. Hader does not
even mention that issue. Hader, therefore, does not
mandate dismissal of paragraph 9 of the complaint.
Furthermore, even assuming arguendo that our dissent-
ing colleague is correct that, as a matter of Pennsylvania
law, if a subcontractor has “possession and control for
tort purposes,” it likewise has “possession and control for
trespass purposes,” the Respondent would still not be
entitled to dismissal of paragraph 9 of the complaint.
Contrary to our dissenting colleague’s assumption, Ha-
der did not establish a per se rule that a subcontractor is
always in possession and control of the work area.
Rather, Hader makes clear that such possession and con-
trol is a factual issue that must be determined in each
case by examining the contractual relationship among the
parties. See Hader, 410 Pa. at 146–152; 189 A.2d at
275–277. If the landowner retained control, then the
general rule of Hader would not apply, and the land-
owner would remain liable for tort purposes. See Hader,
410 Pa. at 151–152; 189 A.2d at 277 (distinguishing
Cooper v. Heintz Mfg. Co., 385 Pa. 296, 122 A.2d 699
(1956)).4
In this case, unlike Hader, there is no evidence in this
record of the nature of the relationship among the prop-
erty owner, the general contractor, and the Respondent.
Although it is the Respondent’s burden to establish that it
had an interest which entitled it to exclude individuals
from the property, the Respondent has failed to supply us
with copies of any of the relevant contracts. Without this
evidence, there is no basis on which to conclude that the
Respondent was “in possession of the necessary area
occupied by the work contemplated under the contract”
within the meaning of Hader. Therefore, in the words of
our dissenting colleague, the Respondent has not even
shown that it has “possession and control for tort pur-
poses,” a fortiori, it has not shown that it has “possession
and control for trespass purposes.”
Finally, even if we were to assume (1) that the Re-
spondent has shown “possession and control for tort pur-
poses” of its portion of the jobsite, and (2) that such a
showing is sufficient under Pennsylvania law to establish
“possession and control for trespass purposes,” there is
still a factual disagreement between the parties concern-
ing whether the Respondent sought to exclude the union
representatives from jobsite areas over which the Re-
spondent lacked possession and control. Indeed, even
our dissenting colleague concedes that the General
Counsel has raised an issue for hearing in this respect.
Accordingly, for all these reasons, we find that the Re-
spondent’s denials of complaint paragraphs 7, 8, and 9
raise genuine issues of material fact, and that the Re-
spondent has not shown that it is entitled to dismissal of
any of the complaint allegations as a matter of law.
ORDER
IT IS ORDERED that the Respondent’s motion to dismiss
the consolidated complaint is denied, and the proceeding
is remanded to the Regional Director for further appro-
priate action.

MEMBER HURTGEN, dissenting in part.
I would grant the Respondent’s motion to dismiss with
respect to paragraphs 9 and 10 of the complaint.
Those paragraphs allege that the Respondent violated
Section 8(a)(1) of the Act by threatening the arrest of
union organizers “for entering property the Respondent
does not control.”
The Respondent denies, and claims that it does control
the property. With such control, it clearly has the power
to oust the union organizers. 1

4 Similarly, in two subsequent cases, Pennsylvania courts did not ap-
ply Hader in a per se manner, but, rather, addressed the question of
whether, under the relevant contracts, the landowner retained control of
the work and premises. Emery v. McCollum, 725 A.2d 807 (1999);
Brletich v. U.S. Steel Corp., 445 Pa. 525, 285 A.2d 133 (1971).
1 Lechmere v. NLRB, 502 U.S. 527 (1992).
R & R PLASTER & DRYWALL CO. 89
The General Counsel, of course, does not quarrel with
Lechmere. Instead, he says, as alleged in his complaint,
that the Respondent “does not control” the property from
which it ousted the union organizers. Significantly,
however, the General Counsel does not assert facts con-
trary to those relied on by the Respondent. Instead, the
General Counsel quarrels with the case law relied on by
the Respondent. In essence, the General Counsel argues
that the case law is distinguishable.
In these circumstances, I think that we are presented
with an issue of law. That is, we must take the facts as-
serted by the Respondent (and not controverted by the
General Counsel), and determine whether they fit within
the case law cited by the Respondent. If they do, i.e., if
the General Counsel cannot distinguish the case law,
then the Respondent is entitled to dismissal.
I now turn to the case law. It teaches that, under Penn-
sylvania law, the subcontractor (rather than the owner of
the property) is in possession and control of the area in
which it performs work.2 The Respondent is such a sub-
contractor.
The General Counsel, in seeking to distinguish that
case law, notes that it involves a suit by an injured em-
ployee of the subcontractor against the owner of the
property. The case holds that the subcontractor, not the
owner, is responsible. The subcontractor’s “responsibil-
ity replaces that of the owner.” Concededly, that case
involves tort liability. However, the General Counsel
does not demonstrate why the elements of possession and
control for tort purposes would be different from posses-
sion and control for trespass purposes. In the absence of
Pennsylvania law suggesting a difference, I would con-
clude that the subcontractor has possession and control
for trespass purposes.
My colleagues argue that the Respondent has the bur-
den of proof on the issue of control. They rely on Indio
Grocery for the proposition that the Respondent has the
burden of showing that it was entitled to exclude the un-

2 Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 151; 189 A.2d 271
(Sup. Ct. of Pa.).
ion representatives from the property. That is, they say
that the Respondent must show that it had control of the
property, rather than having the General Counsel show
that the Respondent had no such control. That proposi-
tion may be true as a general matter, but it has no appli-
cation to this case. In this case, as noted above, the Gen-
eral Counsel undertook that burden. Whether he had to
do so is beside the point. The fact is that he undertook
that burden. His complaint alleged that the Respondent
“does not control” the property. I think it elementary,
certainly not “novel,” that the prosecutor must prove the
allegations of his complaint. The issue is whether he has
met that burden. On the face of the pleadings, he has not
done so. He has made a bare allegation of absence of
control; the Respondent has replied that, under state case
law, there is a presence of control; and the General
Counsel has not averred facts to distinguish that case
law.
My colleagues also assert that “the general rule of
Hader” does not apply because the contractual instru-
ments in the instant case may vest control in the Respon-
dent. However, the General Counsel, who bears the bur-
den of proof, does not even make this claim, and conse-
quently he does not set forth these instruments in his
brief. Accordingly, we are left with state law, which
teaches that the subcontractor has control of the property.
And, as my colleagues concede, it is state law to which
the Board looks in deciding these issues.
Finally, the General Counsel suggests that the Respon-
dent sought to oust the union organizer from jobsite areas
where the Respondent was not in possession and control.
I do not read the Respondent’s letter to the Union as say-
ing this. However, to eliminate any ambiguity, I would
dismiss the complaint only insofar as it involves the Re-
spondent’s ouster of union agents from its portion of the
jobsite, i.e., “the necessary area occupied by the work.”
If the General Counsel can show that the Respondent
sought to oust union agents from other portions, he may
do so at trial.