Subbiondo And Associates, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1989

295 N.L.R.B. 1108 (N.L.R.B. 1989)

1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Subbiondo and Associates , Inc. and Orange County
District Council of Carpenters , AFL-CIO and
United Association of Journeymen & Appren-
tices of the Plumbing and Pipe Fitting Industry
of the United States and Canada , Local No.
582, AFL-CIO and Laborers' International
Union of North America, Local 652, AFL-CIO
and International Brotherhood of Electrical
Workers, Local No. 441, AFL-CIO. Cases 21-
CA-21984, 21-CA-21998, 21-CA-22001, and
21-CA-22003
July 31, 1989
DECISION AND ORDER
On August 4, 1983, Administrative Law Judge
Russell L. Stevens issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
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
as modified.2
In affirming the judge's findings regarding the
Respondent's 8(a)(1) violations for restricting
and/or denying the union agents access to its con-
struction jobsite at Orangegate Plaza in Westmin-
ster, California, we find that the judge correctly
' The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir . 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The judge states at several places in his decision that there is "no dis-
pute" that the Respondent "on many occasions" permitted union repre-
sentatives to enter the worksite "without restriction or condition" and
"without escort " The Respondent , however , argues that the judge mis-
characterized the testimony , which shows that although union representa-
tives often were permitted on the worksite "without restriction," i.e.,
granted entrance without an appointment , the Respondent escorted all
visitors . We agree The judge in his discussion of the February 24, 1983
incident credits the Respondent witnesses Van Hamblen and Crowther
that "the [Respondent 's] escort policy applied to all visitors . .." And,
notwithstanding the judge 's assertion that union representatives are not
"visitors in the usual sense of the word ," Van Hamblen 's unrefuted testi-
mony was that the escort policy applied to "everybody ," "business
agents as well as non -business agents." Accordingly , the record does not
support the judge's decision to the extent that he suggests union agents
routinely entered the worksite without escort. The error , however, is in-
consequential in this case because the Respondent failed to establish any
legitimate business justification for requiring such a restriction of the
Unions' access to the jobsite . See fn. 5, supra
The General Counsel and the Unions did not except to the judge's dis-
missal of the complaint allegations concerning the February 14 and 18,
1983 incidents
2 We shall modify the recommended Order to conform to the judge's
findings and notice.
applied the Board's ruling in Villa Avila,3 which is
subject to the clarification of access issues present-
ed in Jean Country.4 See C. E. Wylie Construction
Co., 295 NLRB 1034.
The Respondent is the owner-developer and gen-
eral contractor of the construction jobsite from
which the union agents were excluded. The Re-
spondent'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 subcon-
tractors onto its property where those subcontrac-
tors have collective -bargaining agreements that in-
clude access provisions. The general contractor has
thereby submitted its own property right to the
lawful activities of union business agents servicing
their members pursuant to contracts with subcon-
tractors and has shown no reason here for limiting
those contractual rights. Villa Avila, 253 NLRB at
81. Concerning the Unions' rights, we find that the
access provisions in the contracts with the subcon-
tractors and the reasons therefor evidence that the
Unions' requests for access "entailed the exercise of
strong Section 7 rights." C. E. Wylie Construction
Co., supra.
The record establishes that the Unions sought
access on February 1 and 24, 1983, for customary,
legitimate union-member consultation and for
safety purposes, respectively. We find that the
Unions had no alternative means of communication
in this case. The safety checks, here, could not be
conducted without entry onto the jobsite. Similar-
ly, the investigation and resolution of contract
compliance issues require access to the jobsite.
C. E. Wylie Construction Co., supra.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and orders that the Respondent,
Subbiondo and Associates, Inc., Westminster, Cali-
fornia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.5
8 253 NLRB 76 (1981 ), enfd . 673 F 2d 281 (9th Cir 1982).
Concerning the February 24, 1983 incident, we find that the Respond-
ent failed to carry its burden of demonstrating the reasonableness of re-
quiring an escort. We find it unnecessary to pass on the judge's comment
in his discussion of the February 24, 1983 incident that union representa-
tives who ignore an employer's safety precautions and warnings do so "at
their own risk."
4 291 NLRB 11 (1988).
5 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
Continued
295 NLRB No. 132
SUBBIONDO & ASSOCIATES
1. Insert the following as paragraph 1(b) and re-
letter the subsequent paragraph.
"(b) Requiring that union representatives be es-
corted on its jobsites by management representa-
tives, when employees are being provided union
services or collective -bargaining contracts are
being policed."
2. Substitute the attached notice for that of the
administrative law judge.
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. There is no evidence of vandalism or illegal
work stoppages nor was there any finding that the Union attempted to
illegally interfere with work herein.
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT interfere with the right of union
agents to enter construction sites for the purpose of
engaging in lawful union activity related to servic-
ing of unit employees and policing of contracts
with signatory contractors.
WE WILL NOT require that union representatives
be escorted on our jobsites by management repre-
sentatives , when employees are being provided
union services or collective-bargaining contracts
are being policed.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
SUBBIONDO AND ASSOCIATES, INC.
Frank M. Wagnor, Jr., for the General Counsel.
James A. Winkler (Atkinson, Andelson, Loya, Ruud &
Romo), of Long Beach, California, for the Respondent.
Ray Van der Nat (Van der Nat, McNeil & Haywood), of
Los Angeles , California , for the Charging Parties.
DECISION
STATEMENT OF THE CASE
1109
RUSSELL L. STEVENS, Administrative Law Judge.
These cases were tried in Los Angeles, California, on
June 14, 1983.1 The charge in Case 21-CA-21984 was
filed on February 16 by Orange County District Council
of Carpenters, AFL-CIO (Carpenters). The charge in
Case 21-CA-21998 was filed on February 22 by United
Association of Journeymen & Apprentices of Plumbing
and Pipe Fitting Industry of the United States and
Canada, Local No. 582, AFL-CIO (Plumbers). The
charge in Case 21-CA-22001 was filed on February 22
by Laborers' International Union of North America,
Local 652 , AFL-CIO (Laborers). The charge in Case
21-CA-22003 was filed on February 23 by International
Brotherhood of Electrical Workers, Local No. 441,
AFL-CIO (Electricians).2 By order dated April 5, the
Regional Director for Region 21, National Labor Rela-
tions Board (Board), consolidated said four cases and
issued a consolidated complaint (referred to as complaint,
which was amended at trial with my leave). The com-
plaint alleges that Subbiondo and Associates , Inc. (Re-
spondent) violated Section 8(a)(1) of the National Labor
Relations Act (Act) by denying and restricting access of
union representatives to employees on a worksite under
control of Respondent.
All parties were given full opportunity to participate,
to introduce relevant evidence , to examine and cross-ex-
amine witnesses , to argue orally, and to file briefs . Briefs,
which have been carefully considered , were filed by
counsel for General Counsel , Respondent, and Charging
Party Electricians.
On the entire record ,3 and from my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
1. JURISDICTION
At all times material herein , Respondent has been en-
gaged as an owner-developer and general contractor in
the building and construction industry in Southern Cali-
fornia, and acts as the general contractor on a construc-
tion project located in Westminster, California (Orange-
gate Plaza). Respondent is engaged, inter alia, in real
estate management in southern California , and during
calendar year 1982, a representative period , Respondent's
gross revenue from said business activities was in excess
of $100,000 in leasing of office buildings, at least $25,000
of which was derived from businesses whose operations
meet one of the Board 's jurisdictional standards other
than indirect outflow or indirect inflow.
Respondent admits, and I find, that Respondent is, and
at all times material herein has been , an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
i All dates hereinafter are within 1983, unless otherwise stated.
' The four labor organizations sometimes are referred to, collectively,
as Unions.
8 General Counsel 's motion to correct transcript is unopposed, and is
granted.
1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED
Orange County District Council of Carpenters, AFL-
CIO, United Association of Journeymen & Apprentices
of the Plumbing and Pipe Fitting Industry of the United
States and Canada, Local No. 582, AFL-CIO, Laborers'
International Union of North America, Local 652, AFL-
CIO, and International Brotherhood of Electrical Work-
ers, Local No . 441, AFL-CIO are, and each of them is,
and at all times material herein have been , labor organi-
zations within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
Background4
As noted, supra, Respondent was the general contrac-
tor for Orangegate Plaza . Sam Van Hamblen was the
project superintendent , and Robert Crowther was the
project manager . Hamblen had a construction shack near
the main gate to the project, adjacent to building 1, and
Crowther had an office in building 1 . At times relevant
herein , building 15 was completed and buildings 2 and 3
were under construction . Peck and Hiller was a subcon-
tractor on the project at times relevant herein , employ-
ing carpenters and laborers ; Leverton and Beck was a
plumbing subcontractor; and Streech Electric was an
electrical subcontractor.
Associated General Contractors of California (AGC) is
an employer association that negotiates collective-bar-
gaining agreements with, inter alia, Carpenters and La-
borers. (These agreements are referred to as MLA.) Peck
and Hiller is a member of AGC. Current MLA with
Carpenters and Laborers provide, inter alia:
The Union business agent or special representa-
tive shall have access to the project during working
hours and shall make every reasonable effort to
advise the Contractor or his representative of his
presence on the project.
Plumbing and Piping Industry Council, Inc. (PPIC) is
an employer association that negotiates collective-bar-
gaining agreements with Plumbers. Leverton and Beck is
a member of PPIC. The current agreement under which
Leverton and Beck operates provides, inter alia:
Access to Jobs. The Business Representative shall
have access to all jobs and shops at all times during
working hours . With exception of government secu-
rity clearance requirements , it shall not be a viola-
tion of this Agreement for the Union to remove em-
ployees covered by this Agreement until such time
as access to the job is provided. The Contractor
shall give all possible assistance for security clear-
ance.
Orange County Chapter, National Electric Contractors
Association , Inc. (NECA) is an employer association that
negotiates collective -bargaining agreements with Electri-
4 This background summary is based on stipulations of counsel and on
credited testimony and evidence not in dispute
5 R. Exh . I is a sketch of Orangegate Plaza.
cians . Streech Electric is a member of NECA. The cur-
rent agreement under which Streech Electric operators,
provides , inter alia:
The representative of the Union shall be allowed
access to any shop or job at any reasonable time
where workmen are employed under the terms of
this Agreement . Where abnormal conditions occur,
the Contractor and Business Manager shall notify
each other of said condition.
Respondent is not a party to any bargaining agree-
ments with any of the labor organizations involved in
this controversy.
There is no dispute concerning the fact that , on many
occasions , Respondent permitted union representatives of
employees working at Orangegate Plaza to enter the
worksite and confer with employees without restriction
or condition, both before and after the dates involved
herein.
On February 1 Ernest Mendez, a business representa-
tive for Laborers , went to the Orangegate Plaza worksite
to confer with three members of his union who then
were working there for Peck and Hiller . Mendez met
near the worksite entrance with Crowler , who allegedly
denied Mendez access to the site.
On February 14 several representatives of labor orga-
nizations involved herein went to Orangegate Plaza in a
group , to confer with members of their respective
unions. Included in the group were Robert Balgenorth,
executive-secretary of Building and Construction Trades
Council of Orange County ; Slim Watts of Carpenters,
Marv Pietrock of Carpenters ; Mendez of Carpenters; Ed
Ormes of Electricians ; Nick Mitchell of Plumbers; Jim
Piester of Millwrights ; and Carl Moore of Sheetmetal
Workers. The group arrived at the worksite approxi-
mately at 9 a.m., and Balgenorth talked with Hamblen,
who allegedly denied all the group entry into the work
area.
In the afternoon of February 14 Ormes called Norman
Edson , one of the owners of Streech Electric, and asked
that a meeting be held with Respondent in order to re-
solve the matter of entry onto the worksite by union rep-
resentatives . A meeting was held in Crowther 's office in
building 1 on February 18, attended by Edson, Ormes,
Hamblen , Crowther, and representatives of Peck and
Hiller, Leverton and Beck , Streech Electric , and others.
The meeting involved access to the job, and on the same
day, February 18, Laborers picketed the worksite and
the site was shut down for the day except for work
being done by masons employed by a nonunion subcon-
tractor . The problem was not resolved at the meeting.
On February 21 Ormes visited a Board Office to file the
charge involved herein , and talked with a union attorney
about getting access to the worksite.
On February 23 an electrician employed by Streech
Electric, Jim Kilburg, seriously was injured by construc-
tion material falling from the sixth floor on the northside
of building 2, which then was under construction. Kil-
burg was wearing a hardhat at the time, but received ex-
tensive injuries . Ormes learned of the accident and in-
formed Balgenorth , who called representatives of all
SUBBIONDO & ASSOCIATES
crafts who had employees working at Orangegate Plaza,
and told them about the accident . It was agreed that sev-
eral representatives would go to the worksite the follow-
ing day to inspect the site for possible safety violations.
Balgenorth called local police officials and arranged for
a police officer to meet with the union representatives on
February 24 at the entrance to the worksite, in order to
gain entry to the site.
On February 24 Balgenorth, Mendez, Ormes, and Jim
Hennington of Carpenters met at the site entrance. A
police officer also was there . Balgenorth talked with the
police officer and Hamblen also talked with the officer,
but at a time different from Balgenorth 's conversation.
After some confusion and general discussion , the union
representatives went onto the worksite and fanned out in
different directions . Events of the day are in dispute, and
are discussed infra.
A. Events Prior to February 1
Although the record is skimpy concerning events, and
the relationship between Respondent and the Unions,
prior to February 1, it is apparent that there were some
items of friction between the parties. Further, as noted
above, it is clear that, generally speaking, Respondent
did not interfere with free and unconditional access of
union representative to the worksite. If there was inter-
ference, it occurred only on the dates alleged in the com-
plaint.
Hamblen , Crowther, and Mendez testified relative to a
visit by Mendez to the worksite sometime in January.
Mendez testified that he knew one of the masons em-
ployed on the project was nonunion , and that he at-
tempted, unsuccessfully, to learn from Hamblen the
name of the contractor. Hamblen testified that when he
refused to give Mendez the name of the nonunion con-
tractor on the job, Mendez replied , "there could be trou-
ble if you use nonunion laborers on the job." Crowther
testified that he was present during this incident , and that
Mendez asked if Crowther wanted to sign a union labor
agreement, to which Crowther replied no . Crowther tes-
tified that Mendez asked for a list of Respondent's sub-
contractors, and Crowther refused the request. Mendez
(and one other union representative who was with him)
asked Crowther to assist him in seeing subcontractors
about the matter, and Crowther refused. Crowther testi-
fied that Mendez then stated "you are going to have
problems ." The testimony of Hamblen and Crowther is
credited on this subject, to the extent there is any dis-
crepancy between their testimony and that of Mendez,
who appeared to be an unreliable witness . Mendez did
not deny the testimony of Hamblen and Crowther rela-
tive to their conversations with him, wherein he threat-
ened them with trouble and problems.
On January 13 Balgenorth and several other union
business agents went to the worksite to distribute leaflets
and stickers in opposition to "two-gate " operations, and
Hamblen opposed Balgenorth 's presence on the worksite
because the latter was not wearing a hardhat. 6 Balgen-
6 Balgenorth testified that, during this incident , he saw people on the
jobsite who were not wearing hardhats , but that testimony was brief and
ambiguous, and is given no weight . Balgenorth also testified that the visit
orth and the others left, and did not return that day.
Hamblen testified that the only reason for stopping Bal-
genorth was the fact that the latter was not wearing a
hardhat . There is no dispute concerning the fact that
OSHA regulations , and Respondent's rules, require that
hardhats be worn within construction areas . Balgenorth
testified that he was unconditionally denied access to the
project, regardless of whether or not he was wearing a
hardhat, but acknowledged that he was not wearing such
a hat . Balgenorth clearly was defiant on this occasion.
Hamblen testified , without challenge or contradiction,
that Balgenorth left the project through an area along-
side building 2, that Hamblen specifically tried to get
him to avoid , since it was a dangerous area . It was the
same place a serious accident later occurred , on Febru-
ary 23. Hamblen is credited relative to this incident. The
incident is not alleged as a violation of the Act, and no
violation is found.
Finally, as noted above, there was a short strike, and
picketing , on the worksite February 18.
B. Events of February 1
Mendez testified : when he went to the worksite on
February 1, as noted above, he met Crowther at the en-
trance gate and asked for permission to enter . Crowther
denied him entry even though he asked for permission
three times, and Crowther said , "I had to make an ap-
pointment some other time and that they were too busy
at that particular time ." On the third occasion , Crowther
walked away.
Crowther testified that, because urgent preparations
for a concrete pour were being made when Mendez ap-
peared , "I informed him it was not an opportune time
that, that the superintendent was busy and requested that
he come back another time." Crowther denied that he
refused Mendez access ; he said he only asked that
Mendez come back later, at a time that was opportune.
Crowther acknowledged that Mendez asked more than
once to come onto the premises at that time . He also tes-
tified that , possibly, he told Mendez that it was company
policy for all visitors to be escorted by Hamblen.
C. Events of February 14
Balgenorth testified : he, Moore, and Mitchell met
Hamblen in the construction shack, identified themselves,
and asked to come onto the project "to inspect for
safety ." Hamblen said they would have to make an ap-
pointment , and come back another time . Balgenorth said
they had a right to come in then , and asked Hamblen to
call his people on the telephone . Hamblen did , and said
the group could not enter the project. Ormes then ar-
rived, and asked Hamblen for permission to enter and
talk with the electricians . Hamblen refused that request.
There were no sheetmetal workers or millwrights on the
was a weekly "routine squad action" to check safety matters and talk to
members, but that testimony appeared weak and unconvincing There is
no evidence of any "squad action" ever having been conducted on the
project poor to January 13. The project has been underway many
months, with all site preparation and two six -story buildings having been
completed prior to incidents herein . In addition , some work had been
completed for two other buildings.
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
project , hence Moore and Piester did not make specific
requests to talk with any workers . Watts and Pietrock
asked to come onto the project to talk with their mem-
bers who were working for Peck and Hiller , and Hamb-
len refused . All the group then left . They arrived at the
parking lot, Balgenorth distributed some "rally" flyers
and hardhat stickers , which he had in his car that was
left in the parking lot. The principal reason for Balgen-
orth's request to come on to the project was to make a
safety check , and from outside the project he saw "some
housekeeping disarray," and saw that "the jobsite could
have serious hazards ." He saw cement trucks on the
project.
Mitchell testified : when the group arrived at the gate
of the worksite , one of Leverton and Beck 's trucks was
parked there . Balgenorth asked Hamblen for permission
to enter the worksite , and Hamblen said , "I will deny
any permission to come on the jobsite at this time."
Hamblen called his office at Balgenorth 's request, and
still refused access . Mitchell identified himself to Hamb-
len and said he wanted to enter the site, and Hamblen
replied , "I am denying you access ." They both repeated
what they said , and Mitchell left. Everyone he saw that
day was wearing a hardhat , but he has been on the site
at other times when some were not wearing hardhats.
Watts testified : when he arrived at the site , Peck and
Hiller was on the job with seven or eight employees. He
was told by Pietrock that the group had been denied
access to the job, and he heard Pietrock ask Hamblen for
right of access . Hamblen replied , "I am denying you per-
mission to go on the job, that we are in a pour and you
have to make an appointment or come back at noon to
talk to the men." As they were leaving , they met and
talked with Doug Gorman, a foreman for Peck and
Hiller, and asked Gorman if he could talk with Hamblen
for them. Gorman talked with Hamblen , who replied
that the union representatives would have to make an ap-
pointment , or come back at noon . The representatives
then left . It could be seen that a concrete pour then was
in progress . His reason for asking access was to service
the union contract.
Ormes testified : the squad arrived at the site gate at
8:30 or 9 a.m., and when he arrived he was told by the
others that they had been denied access to the job. He
asked Hamblen if Streech Electric was on the job, and
the answer was yes . Ormes asked if he was denied
access, and Hamblen said yes. Ormes identified himself
and said he was going on the job , but the other repre-
sentatives talked him out of doing that.
Hamblen testified : the sixth floor concrete deck was to
be poured on February 14, starting at 7 a .m. He arrived
at the site between 4 and 4:30 a.m ., because extensive
preparations must be made for a pour. Once a deck pour
is started , it cannot be stopped because cold joints are
not permitted . All employees are involved in a pour in
some way-plumbers , electricians , carpenters , and labor-
ers have some work that must be performed before the
pour starts and as it progresses . All plumbers on the site
were working directly on the pour; the single electrician
was required to watch the pour , in order to make certain
that electrical fixtures were not interfered with ; some of
the carpenters were directly involved with the pour, and
others were setting up forms on another floor. Trucks ar-
riving with concrete mix cannot be delayed from pour-
ing after leaving their plant for longer than 1-1/2 hours,
pursuant to building codes . The squad of business agents
appeared in the midst of the pour approximately at 8
a.m. They asked to come onto the project and were
denied , and they repeated their request. Again they were
denied , and were told to come back at lunchtime or after
work, because all the workmen were occupied with the
pour, and it was an unsafe and inopportune time to visit.
He asked that they call the office to arrange for an op-
portune time . The safety hazard during pours is caused
by the area being wet and slick, and the fact that it is
possible for decks to break during pours. Further, it is
common for objects to fall from the floor being poured.
Mendez asked if he was being denied entry, and Hamb-
len replied no, but come back another time . Balgenorth
and Mendez were distributing union pamphlets and stick-
ers,' and several of the union agents had stacks of union
literature . Stickers were placed on trucks, the construc-
tion shack, portable toilets , and elsewhere. All who come
onto the project, except workers, are escorted because of
safety considerations.
D. Events of February 18
Ormes testified that when he arrived at the meeting
described above he announced that he would not discuss
the picket line then in place ; that he would discuss only
the matter of access to the jobsite . Ormes said Crowther
announced that an ABC consultant would appear later,
which he did. Ormes continued:
I never caught the name . I was very uneasy to
even be in there with him . And I give him some lit-
erature, and one was the section of the agreement
stating we have access to the job. The -other one
was a state law plus I give [sic] him a copy of the
new state supreme decision that had come down
and I handed it to him and he just picked it up,
looked at it, he threw it back across the table and
he says, the only way you are going to get access to
this job, is by appointment only. And I picked up
my papers and put it in my folder, and folded it and
walked out.
Hamblen testified that the ABC labor counsultant's
name was Steve, with the last name unknown to him.
Hamblen said Steve did not represent Respondent.
Hamblen testified:
Q. And is it your recollection that Steve testified
at that meeting that if you want to get access on
this job site, you would have to call and make an
appointment?
A. No, it's not.
Q. Can you tell me what you remember him
saying?
A. Basically , the electrical b.a. gave him some
papers. One was the agreement through the union
and Stretch , the other was the one that they hand
7 R. Exh 2
SUBBIONDO & ASSOCIATES
out saying that they have access to the job site and
the representative-or Steve said that he knew what
forms were. The b.a. put them back into his brief-
case and left.
E. Events of February 24
Balgenorth testified : when the group arrived at the
project site , the police already were there . He told the
police that the group wanted to check the project for
safety, and was not interested in a confrontation. The
police officer he talked with went to talk with Hamblen,
and he started to go onto the project , after motioning to
the others to come with him . Hamblen said they could
not go onto the project, and the group talked about
safety and the injury of the employee on February 23.
Hamblen said , "If you are going to go in, you have to go
in one at a time, so I can escort you." Balgenorth said
they would not do that, and all of them went onto the
site. Ormes and Balgenorth , followed by Hamblen, who
was protesting their entry , went in a direction different
from the others . Ormes walked up to two electricians at
building 2 , and Balgenorth stopped approximately 20 feet
aside with Hamblen , in order to permit Ormes to talk
privately with the electricians . Hamblen and Balgenorth
talked about the injury to Kilburg , and Balgenorth said
all the group was interested in doing was to check the
safety of the project. He referred to the debris and junk
strewn about the site, and implied that such a condition
may have contributed to the injury . Balgenorth saw sev-
eral things he considered to be violations of state safety
regulations . He went from the ground floor to the
second and third floors by climbing an outside ladder,8
and returned by the stairway. Forms were being stripped
while he was there , and someone yelled at him because
of the stripping . The strip area should have been roped
off, but it was not . He has had 18 years as a tradesman,
and is familiar with safety requirements on jobsites. After
the group left the site , he filed a safety complaint with
OSHA.
Ormes testified and generally corroborated Balgen-
orth. He said he noticed several safety violations, and
filed a complaint with OSHA.
Hamblen testified: Balgenorth came to the gate and
left after Hamblen asked if he could be of assistance. Bal-
genorth later returned with the police , who gave Hamb-
len a document saying Balgenorth could enter the job-
site . He asked Balgenorth if he could escort him around
the site for safety reasons . Balgenorth replied that all the
union representatives in the group were experienced and
knew about safety . Hamblen walked in with the group,
and continued to ask that he escort them for safety rea-
sons . Balgenorth and Ormes stayed on the first floor, and
the other two representatives went to another location
unknown to Hamblen. Hamblen returned to the job
shack and talked with Gorman of Peck and Hiller. He
then noticed Balgenortha climbing a ladder on buildiing
8 Crowther and Hamblen acknowledged that the only way to get from
the second to the third floor was by the ladder.
a Hamblen thought this individual was Ormes, but he was mistaken.
There is no dispute about the fact that it was Balgenorth.
1113
2, from the roof of the first floor to the third floor.
Forms were being stripped at the time, on the sixth floor,
with the help of a crane . Two watchers were being used,
to keep the area clear during the stripping. Hamblen,
Gorman, the two watchers, and others whistled, waved,
and tried to get Balgenorth's attention. It was a danger-
ous situation , since stripping often results in forms and
objects falling from the area being stripped. Balgenorth
kept on going, and went onto the third floor. No repre-
sentative of OSHA came to the project until March 4.
OSHA representatives have visited the project a total of
five or six times . On March 3 the OSHA agent said the
Union had filed a complaint , and he inspected the prem-
ises . Respondent never was fined by OSHA, but an oral
citation was issued requiring completion of the stairwell
between the fourth and fifth floors, and installation of an
elevator stop on all floors instead of alternate floors.
That work was completed the Wednesday after March 4.
The written citation arrived March 20 or 24 . Hamblen
asked about Respondent's housekeeping , and the agent
said it looked fine. Hamblen denied that he refused
access to the worksite for the union representatives, and
stated that Respondent never has had a rule that union
business agents cannot come onto the worksite without
an appointment or without being escorted.
Crowther testified and generally corroborated Hamb-
len. He stated that the only time Respondent requires
that visitors to the site have an appointment, or an
escort, is when working conditions are dangerous or
when the worksite is very busy . He said the superintend-
ent (Hamblen) is the only proper person to escort visi-
tors, and only on rare occasions has access been denied
upon request.
Discussion
The parties agree that the case of Villa Avila 1 ° is of
first import in considering the controversy herein.
Charging Party Electricians ' counsel stated in his brief
that Avila is "a case squarely on point with this matter,"
but that conclusion is overly broad . There are many fac-
tual differences between Avila and this case , and it is
those differences that must be considered in determining
whether or not the Act has been violated by Respond-
ent. The administrative law judge in Avila, following a
carefully drawn balance between a respondent's property
rights and the rights of union representatives to confer
on a jobsite with union members, found that the latter
rights prevailed . The administrative law judge was care-
ful to point out that, in striking the balance , he did so
"under the factual setting herein,"" " and the administra-
tive law judge went further, by explaining both generally
and specifically, that his conclusion could be different
under different factual situations . As noted by Respond-
ent's counsel , Avila did not establish a general rule that
states a union representative of employees working for a
union subcontractor at any time may go onto the jobsite
10 Villa Avila, 253 NLRB 76 (1981), modified 673 F.2d 281 (9th Cir.
1982).
11 Id. at 82.
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of a nonunion general contractor , to confer with employ-
ees.
1. Pre-February 1 situation
As previously noted , Respondent was not shown to
have imposed , at any time prior to February 1 or after
February 24, any rules, restriction , or condition on the
entry of any union representative to its jobsite. To the
contary, it is clear that Respondent was cooperative with
union representatives . Hamblen testified , and Mendez ac-
knowledged , that the latter went onto the project on
many occasions without restriction of any kind . Further,
there is no evidence that Respondent harbored any union
animus . All the subcontractors except a masonry group
were signatories to union contracts , and there is no evi-
dence that Respondent was concerned about that fact.
Although a complete record was not made, the inci-
dents involved herein probably had their genesis in the
Union 's discontent with the presence of nonunion em-
ployees on the project . That discontent first was exhibit-
ed by Mendez, when he threatened Hamblen and
Crowther in January with "trouble" and "problems," if
they did not assist him in his attempts to put pressure on
the masons . Respondent asks a finding that those at-
tempts constituted illegal secondary activity , but that
matter was not fully litigated . However, the record is
adequate for a finding , which is made, that the series of
incidents involved in this case began , at least partially,
with Mendez ' opposition to a nonunion subcontractor
working at the site.
Balgenorth first entered the controversy on January
13, when he and other union representatives, including
Mendez, appeared at the site with union literature and
stickers designed to further Mendez' expressed opposi-
tion to nonunion employees working at the jobsite. It is
possible that the two separate visits of Mendez and the
group were, at least partially , for the same purpose, but
that is speculative . The "squad action" was a device new
to Respondent, it came unannounced , and patently it was
not solely a safety inspection or a visit with union mem-
bers . However, that fact is not conclusive , so far as any
issue is concerned.
2. February 1 incident
Prior to February 1, Respondent never had advised
the union representatives that their right to come onto
the jobsite were denied or restricted as a matter of
policy. The situation in Avila was different. There, the
three respondents had posted signs on the projects in-
volved, stating:
To Trespassing
Stop-Read
Warning-Entering this property without
permission will be considered trespassing-
subject to arrest . Authorized employers and
their employees are exempt . All other check
in at office and be accompanied by
an agent of the owner.
However, Crowther' s testimony makes it clear that he
contemplated , at least beginning approximately February
1, that all visitors must be accompanied on the jobsite by
the superintendent. He testified:
Q. So if the superintendent is not avaliable to
escort them on the job site, then the company
policy would be that they would not come on the
job site?
A. Yes, or they would come back another time
when he did have the time . And if I may add there
was only a couple of occasions that we deemed it
necessary to request that they come back at another
time . Every other time, we have allowed them
access to the job site.
That policy was enunciated to Mendez on February 1.
Crowther testified that he had ordered an immediate
change in concrete forms for a pour that was to take
place within a half hour, and that Mendez appeared at a
time that was inconvenient because it interfered with
emergency work:
I was then leaving the project on my way back
for an appointment and I saw Mr. Mendez coming
onto the job site . He asked that he could come onto
the job site, and I informed him it was not an op-
portune time, that the superintendent was busy and
requested that he come back another time. And he
continued to ask me if he could come on and he
stated , are you denying me access?
I said no, just if you could come back at a more
opportune time, when the superintendent is not
busy.
The question thus is whether or not Respondent 's policy,
as it was announced and applied February 1, is within
the permissible range of restrictions described in Avila.
A fundamental principle resulted from Avila: the fact
that the general contractor is nonunion does not give
that contractor the right freely to deny or restrict union
representatives of employees working on the project for
union employers access to the site for the purpose of
conferring with such employees relative to legitimate
union business.
A further principle was established: such right of entry
by union representatives is not unlimited . The right may
be abridged by reasonable restrictions.
Avila involved restrictions that the adminstrative law
judge found unreasonable . Among those restrictions was
one similar to the one involved in this allegation relative
to February 1. In Avila the restriction was placed on the
no-trespassing sign : "All others check in at office and be
accompanied by an agent of the owner ." That restriction
SUBBIONDO & ASSOCIATES 1115
was similar to the one given to Mendez by Crowther. In
Avila, the administrative law judge discussed this restric-
tion at considerable length , and concluded that, in ab-
sence of a showing that the union agent 's business on the
site was illegal , the restriction was not warranted. Re-
spondent in this case did not conclusively show that
Mendez planned to engage in unlawful activity on the
site; nor that Mendez wanted to be on the site for any
reason other than customary and legitimate union-
member consultation . It is clear that Mendez was op-
posed to nonunion employees working on the site, but it
is equally clear that he was a frequent visitor to the site
for legitimate consultation with union members . To con-
clude that he came to the site for unlawful secondary
purposes would require an unacceptable degree of specu-
lation . In this connection , the Court of Appeals for the
Ninth Circuit, in enforcing Avila, distinguished between
jobsite access and jobsite conduct. The former must be
generously afforded; the latter is subject to scrutiny. The
court stated , inter alia:
The Board order is entitled to be enforced, sub-
ject, as noted , 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 areas;
(2) Union representatives who request permission
to conduct legitimate Section 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.
Subject to the foregoing qualifications, the
Board 's order is enforced.
Respondent did not overcome the presumption of No.
(2).
So far as Crowther 's testimony shows, the only reason
for Respondent's restriction was the fact that Hamblen
was busy . Assuming he was busy, that reason is beside
the point . There was no basis for requiring that Hamblen
accompany Mendez in the first place . Respondent con-
tends it was for safety reasons, in part, that the restric-
tion was instituted , but that argument is not convincing.
Union business agents spend much of their time on con-
struction sites, and certainly their members who work on
the sites know quite well of any hazardous conditions.
Further, it was not shown that any particularly hazard-
ous condition existed February 1. Finally, Mendez and,
apparently , other union representatives commonly went
onto the site without restriction of any kind, both before
and after the incidents involved herein.
In view of Mendez ' basic right to go onto the site, it
was Respondent 's burdens to show that it could retrict
that right . That burden was not met, and a violation of
the Act is found , as alleged.
3. February 14 incident
It is apparent, as noted supra, that union representa-
tives were trying to put the heat on Respondent because
of nonunion employees working on the jobsite, and that
the controversy involved herein arose, at least in part,
because of the nonunion employees.
Although "squad action" was stated by Balgenorth to
be a routine procedure, there is no support in the record
for that statement . It appears that, so far as Respondent
is concerned , this was the only time it had been subject-
ed to such action . Mendez customarily visited the site
alone or with only one other union representative.
Union witnesses used language in their testimony that
had the distinct flavor of tailoring . They were careful to
word their alleged questions to Hamblen in terms such as
"Are you denying us access to the worksite?" and the al-
leged answers to "I am denying you access ." It would be
difficult to avoid the impression that they were trying to
build a case, rather than to recite exactly what happened.
Their recitation were too neat and trim to be given full
credence.
The squad of union representatives came supplied with
many leaflets and stickers to attack two-gate arrange-
ments . Many were distributed, admittedly in the parking
lot and as credibly testified by Hamblen , at various
places inside the work area. Whatever else the represent-
atives may have intended to do on the premises, they
certainly intended to use the opportunity for leaflet and
sticker distribution at and near the jobsite.
Balgenorth testified that he asked to go on the prem-
ises "to inspect for safety," but no other witness corrobo-
rated that testimony and it is given no credence . Balgen-
orth's testimony about disarray , scattered debris, and ap-
parent safety violations throughout the worksite seemed
strained , self-serving , and unconvincing , and is given no
credence . His complaint to OSHA was met only with a
citation (no fine) in March , for stair and elevator correc-
tions that had nothing to do with the things he said he
saw from near the gate. It is not shown why the squad
wanted to go on the premises , but it must be assumed,
absent credible contradiction, that the purpose for entry
was lawful . The testimony concerning distribution of
leaflets and stickers was too ambiguous and incomplete
upon which to conclude that the union representatives
were engaged in unlawful secondary activity.
The facts that a sixth floor deck was being poured
when the squad arrived, and that such an extensive and
elevated pour creates hazardous and somewhat stressful
working conditions, are not in dispute and are within
common knowledge. Hamblen's description of the pour,
and the participation in it by a broad spectrum of em-
ployees, is credited. Clearly, a project of that magnitude
requires concentration and effort on the part of all in-
volved, both rank-and-file and supervisorial.
Hamblen testified , with support from Mitchell and
Watts, that he did not deny access to the union repre-
sentatives; rather, he denied access at that time , with the
statement that they could come back at a more oppor-
tune time.
Other than the above , little is clear from the testimony
of witnesses as to the facts of this incident . No two wit-
1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nesses testified in the same manner . However, it is clear
that the union representatives chose an inopportune time
to descend upon the project in force . It would be unrea-
sonable to conclude that Respondent must subject itself
to interference with urgent work, inconvenience, and
danger to persons and property, in order to permit eight
union representatives to scatter throughout the project
and engage employees in conversations about union mat-
ters . Even in the name of Section 7 rights, that is asking
too much. What the Union sought to do was unreason-
ale, and outside the conceptions of Avila.
The only substantial question is whether or not Re-
spondent placed unreasonable restrictions upon substitute
entry, when it was unable to do what the union repre-
sentatives wanted during the pour. Although the testimo-
ny is not clear, it indicates , and it is found , that Hamblen
refused access to the representatives while at the same
time suggesting that they arrange a more convenient
time for entry. General Counsel's witness Watts ac-
knowledged that Hamblen suggested a visit with employ-
ees at lunch hour as an alternative. It appears that what
happened was tantamount to "I can 't stop employees in
the middle of a pour on the sixth floor deck-come back
at a better time ." It is not clear that the representatives
were told they could not return without an appoint-
ment-the requirement that they call the office for an
opportune time could as well refer to the pouring sched-
ule as to a requirement for an escorted visit.
It is the entry that is in the issue here, rather than
onsite conduct, and there is no evidence that the union
representatives wanted to go onto the site for unlawful
purposes . However, they were not entitled to go onto
the site, even for legitimate purposes , without regard for
the rights of Respondent . Some restrictions were neces-
sary in this instance, and it was not unreasonable for Re-
spondent to ask the representatives to go away, and
come back later.
No violation of the Act is found, relative to this date.
4. February 18 incident
The testimony relative to this incident does not pro-
vide adequate basis on which a violation can be found.
Hamblen did not remember the last name of the labor
consultant, and stated without contradiction that the
person , whose first name was Steve , did not represent
Respondent. Neither the consultant nor any witness
other than Ormes and Hamblen testified relative to this
incident, and the testimony of Ormes and Hamblen was
brief and not very illuminating.
No violation of the Act is found , relative to this inci-
dent.
Hamblen could not escort all the visitors, so he did the
best he could-he escorted Balgenorth and Ormes. It is
clear that he was not trying to engage in surveillance of
union business , but rather, that he was escorting the two
union representatives pursuant to Respondent 's policy-
Hamblen and Crowther are credited in their testimony
that the escort policy applied to all visitors , and primari-
ly was established for safety reasons . However, union
representatives of employees working for union contrac-
tors, albeit under a nonunion general contractor, are not
visitors in the usual sense of the word. They have an in-
terest in employees on the project, the safety of the
project, and general working conditions that are much
broader than the interest of a casual visitor, and that are
protected by the Act. As noted by the court of appeals,
supra, in its third guideline , an escort may be required if
a union representative engages in vandalism , illegal work
stoppage, or illegal interference with work after the rep-
resentative is on the premises . However, no such action
was shown in this case . The nearest approach is Balgen-
orth's apparently defiant attitude in going up the ladder
in the face of warnings , but that was the only way to get
to the third floor, and that action was not shown to be
illegal or to have interfered with the work of employees.
So far as the matter of safety is concerned , it is clear
that the project had hazardous conditions , of which the
principal one was form-stripping on the day involved. It
also is clear that the union representatives involved, par-
ticularly Balgenorth, were somewhat arrogant in their
approach to the problems involved. However, union rep-
resentatives are not strangers to construction projects,
and if they ignore safety precautions and warnings, they
do so at their own risk. An escort is a reasonable precau-
tion for the casual visitor, but it cannot be a requirement
of a union representative engaged in a lawful visit to em-
ployees on a worksite, as in this case . It also is noted,
again, that union representatives went onto the site on
many occasions , both before and after the dates involved
herein , with Respondent's knowledge and without
escort . There is nothing in the record to show that safety
conditions were different on those occasions from what
they were in February.
Respondent argues that descent on the project by the
group of union representatives was a tactic designed to
further union interests in the matter of the nonunion
masons . That may be so, but it was not shown to be. In
the absence of such a showing , Avila applies. Respondent
also argues that findings such as those herein will result
in a per se rule giving union representatives an unlimited
right of entry to work projects , but that is not correct.
Avila still applies; it must be determined in each case
whether or not union rights under the Act outweigh
contractors ' property rights.
5. February 24 incident
The basic right of union representatives to go onto the
worksite , absent unlawful interference with Respondent's
property rights, is not involved in this incident. Entry, in
and of itself, is not in question . The brief of Respondent's
counsel makes Respondent 's position clear : "In the cir-
cumstances of this case , can Respondent have a policy of
escorting visitors on the project for purposes of safety?"
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Each Union herein is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
conduct which unduly restricts the right of union busi-
SUBBIONDO & ASSOCIATES
ness representatives to enter construction sites for the
purpose of servicing employees and policing contracts
with subcontractors.
THE REMEDY
I shall recommend that Respondent be ordered to
cease and desist from violating the Act, and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed12
ORDER
The Respondent , Subbiondo and Associates, Inc.,
Westminster , California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interfering with the right of union agents to enter
construction sites for the purpose of engaging in lawful
12 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.
1117
union activity related to the servicing of unit employees
and policing of contracts with signatory contractors.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its place of business in Westminster, Califor-
nia, copies of the attached notice marked "Appendix." 1S
Copies of said notice, on forms provided by the Regional
Director for Region 21 , after being signed by Respond-
ent's authorized representative, shall be posted immedi-
ately 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 Respondent to ensure that said
notices are not altered, defaced , or covered by any other
material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order, what steps the Re-
spondent has taken to comply.
13 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "