Villa Avila

National Labor Relations Board - Board Decisions

Oct 16, 1980

253 N.L.R.B. 76 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Villa Avila and Cement Masons Local Union No.
627, Operative Plasterers and Cement Masons
International Association, AFL-CIO
Palm Springs Sun Dial and Laborers Local Union
1184, Laborers' International Union of North
America, AFL-CIO
Tom Sawyer Construction Co. and Laborers Local
Union 1184, Laborers' International Union of
North America, AFL-CIO. Cases 21-CA-
18066, 21-CA-18114, and 21-CA-18142
October 16, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MtEMBtERS
JENKINS AND PENELL.O
On July 17,, 1980, Administrative Law Judge
Gerald A. Wacknov issued the attached Decision
in this proceeding. Thereafter, Respondents filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respond-
ents, Villa Avila, Pico Rivera, California; Palm
Springs Sun Dial, Palm Springs, California; Tom
Sawyer Construction Co., Rancho Mirage, Califor-
nia, their officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
Insert the following as paragraph l(c):
"(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
' ResFpndent has excepted to certain credibility findings made by he
Administrative Law Judge. It is the Board's established policy not rto
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wull Products.
Inc.. 91 NLRB 544 (195(1). enfd 188 F2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
2 The Administrative Law Judge inadvertently omitted from his rec-
ommended Order a provision enjoining Respondents from in any like or
related manner interfering with employees' Sec 7 rights. although he in-
cluded such language in the posting notice e hall modif, his recom-
mended Order accordingly
ercise of the rights guaranteed them in Section 7 of
the Act."
DECISON
GRAI I) A. WACKNOV, Administrative Law Judge:
Pursuant to notice, a hearing with respect to this matter
was held before me in Los Angeles, California, on Janu-
ary 24 and 25, 1980. The original charge in Case 21-CA-
18066 was filed by Cement Masons Local Union No.
627, Operative Plasterers and Cement Masons Interna-
tional Association, AFL-CIO (herein called Cement
Masons Local 627) on August 6, 1979.1 This charge,
amended on September 24, alleges 8(a)(1) violations of
the National Labor Relations Act, as amended (herein
called the Act), by Villa Avila. The charges in Cases 21-
CA-18114 and 21-CA-18142 were filed by Laborers
Local Union 1184, Laborers' International Union of
North America, AFL-CIO (herein called Laborers
Local 1184), on August 21 and 30, and allege 8(a)(1) vio-
lations of the Act by Palm Springs Sun Dial and Tom
Sawyer Construction Company, respectively. 2 Thereaf-
ter, on November 26, the Regional Director for Region
21 of the National Labor Relations Board (herein called
the Board) issued an order consolidating cases, consoli-
dated complaint, and notice of hearing in the captioned
matters. Respondents deny the commission of any unfair
labor practices.
The parties were afforded a full opportunity to be
heard, to call, examine and cross-examine witnesses, and
to introduce relevant evidence. Since the close of the
hearing, briefs have been received from the General
Counsel and counsel for Respondents. Counsel for La-
borers Local 1184 submitted a statement of position.
Upon the entire record and based upon my observa-
tion of the witnesses and consideration of the briefs and
statement submitted, I make the following:
FIN)INGS OF FACT
1. JURISDICTION
Respondents Villa Avila, Palm Springs Sun Dial, and
Tom Sawyer Construction Company are general con-
tractors engaged in the building and construction indus-
try with principal places of business located in Southern
California. Each Respondent annually purchases and re-
ceives goods and products valued in excess of $50,000
from suppliers located within the State of California,
which suppliers, in turn, purchase these same goods and
products directly from suppliers located outside the State
of California. Each Respondent admits, and I find that it
is an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
I All dates or time periods herein are within 1979 unless stated to be
otherwise
2 The charge against Palm Springs Sun Dial was amended on August
28
253 NLRB No. 10
76
Vll A AVILA
II. THE .AHBOR OR(iNIZATIONS INVOI VIID)
It is admitted, and I find, that Cement Masons L.ocal
627 and Laborers Local 1184 are labor organizations
within the meaning of Section 2(5) of the Act.
ItL. IHI UNFI-AIR I ABOR PR\CI IC S
A. Issue
The principal issue raised by the pleadings is whether,
or the extent to which, general contractors may refuse to
permit union business representatives access to construe-
tion sites for the purpose of ser vicing subcontractors' en-
ployees.
B. acts
I. Villa Avila
Villa Avila is the general contractor on a condomin-
ium project in Pico Rivera, California. Van Mor Con-
crete Contractors is the concrete subcontractor on this
project. About mid-July, Plumbers Local 78. not a party
to this proceeding, commenced picketing at the project
in furtherance of a primary dispute with the plumbing
subcontractor at the site, and the job was completely
shut down for a 2-week period. Reserved gates were es-
tablished and, according to witnesses for the general con-
tractor, no-trespassing signs, bearing the following
legend, were placed around the project:
NO TRESPASSING
STOP-REAI)
WARNING-ENTERING THIS PROPERTY WITHOUI
PERMISSION WILL BE CONSIDERED TRESPASSIN(;-
SUBJECT TO ARREST. AUTHORIZED EMPLOYERS ANt)
THEIR EMPLOYEES ARE EXEMPT. AL. OTHERS CHECK
IN AT OFFICE AND BE ACCOMPANIED BY AN AGENT
OF THE OWNER.
On August 10, the Regional Director approved a set-
tlement agreement whereby Plumbers Local 78 agreed to
discontinue picketing at the gate reserved for secondary
employers and their suppliers, and further agreed to dis-
continue any other unlawful activity directed against sec-
ondary employers or their employees.
Alfred Nieto is a field representative for Cement
Masons Local 627. In late July, Nieto visited the jobsite:"
and was talking to an employee of Van Mor Concrete
Contractors, a subcontractor with which Cement Masons
had a short form agreement. This short form agreement
adopts the language of the Master Labor Agreement,
which states, inter alia: "The union business agent or spe-
cial representative shall have access to the project during
working hours and shall make every reasonable effort to
advise the Contractor or his representative of his pres-
ence on the project."
While on the jobsite, Nieto was approached by repre-
sentatives of Villa Avila, the general contractor, namely
Project Manager Titus Tiberi, and Joseph Mulley, a part-
ner. Villa Avila has no collective-bargaining relationship
' icketing bh the I'lumbers as occurring at this time
with any labor organization. Tiheri told Nieto to get off
the joh or he would call the sheriff, ]Thereupon. Nicto
left the obsite and called the Union's attorney who, on
Atugust i, sent the following telegram to the general con-
rac tor:
ON Y(OUR JOB S At' 4312 ROSIMA NN Vt)., P'(O-
RIVIt R , 50 \RI IN I l RIF RIN(G II11 f I \ A'li I
R(tll IS 0 ( I NII-NI MSONS I 1I I NI()N No. 27
1o SI 'IR II IlS M.NIEMHlRS, C 1I N I t SSONS IM-
PI (1 tI IN V N NMOR, FY II FI\ I I NING ODII) 'I
INJI RH \NI) I \N S I OR( I RISt'\SS. SI( I (N 551.2
[SI(] )t ItI ( \I 11 ()RNIS P1 N x1 ()OD I'-R 1 IS
I N I Rt I I(N POSI I 1) PROP.R I I OR I W5I t I L N(O)N
.\( I 1\ 11 4 INII II RI Nt I It OR(; NIIN(
RI(LHfs lIOIt I IS SICIONS 8 A)(1) NI) 8(3) (ot
I lt N \ I()ONI I HABOR HII \I()NS A( I.
((N NI\CI lilt LNIt)IRSI(NINI) \ 38-8125 151MI-I)I-
t11 It) ARRAN(I- OR P ,\ I IUI ENI R UPl ON
IHII JOl S t....
The general contractor sent the following reply tele-
gram to the Union on August:
IN RH : I RI N('I IO OUR III ADVISEI), (iROUtNI)I SS,
I GAl I R FRI O 1 AiGUS 1, 1979, '1 LAS- I .D-
VlSII) TIIHI IHI ONLY \WAY tO() OIAIN CCISS 0O
OUR JOB SIIt IN PICO RIVERA 'tll.l HB I OR -\ I.I-
GIIIMATII I AI. REASON, YOUR IFHRItAIS or I.AW-
SUIIS WON I CUI II. WE ARE IN NO M100) O P.AN
YOUR (AMIS. A RHE(UIST SUPPOR IED) BY EVIDENCE
01 A ItI t IMAiIL NATURI WVII.I. PROMP'T OUR CON-
SIDIRATION 01- YOUR RQUESI FOR ACCESS ON OUR
JOB Sll'. YOUR ATTlEMPI 10 PROMOTE A SYMPATH-Y
SIRIKI. AMONG OUR UNION SUBCONTRACTORS WII.I
NOT BE TOt ERATED. YOUR POSITION AS AN OFFICER
01 THE COURT SHOULD BE PROTECTED IN PERSUIT
[sic] OF- EIHICStL MA rrRS.
Nieto returned to the jobsite on August 6, in order to
service the employees of Van Mor Concrete Contrac-
tors, who were pouring concrete slabs for the first time,
and who continued to work despite the picketing by
Plumbers Local 78 on that day.
Nieto testified that he approached Tiberi and advised
him that he wanted to check compliance with the con-
tract between Cement Masons and Van Mor. Tiberi re-
fused to allow Nieto access to the project, but said that
he would send the employees to the curbside, one by
Sec 552 1 of the California Penal Code specifies certain c ccp ion, tI
the crime f trespass, and prosides as folloss
This article does not prohibil
(a) Anl la. ful acHity fior he purpose of engaging in any orgalilla
tilial effortl n hbehalf (or an, labor union, agent. or member Iherel'.
or of ;ll) emptloyee group,. or any member therelof, employed or for-
merly employed in any place lf business or manufacturing establish-
mclll de,,cribed in this article. or for the purpose of carrsitg on the
I;afill atiltilCoe o labor Unililns. o1 members thereof
(h) A, ;la, Ifl allo,us for the purpose of iengatitn I tite .Ilfct 5
of 's0rkillg onditills i posteld priprt b. a represcratiti of a
labor ill(loi lr totherl CploCee glrmp .hio ha. upon i'i person t( r!t
tel c,,idellc o dile anuhorl,a.tin hi, his labor union or emplo,ee
grourp ii ake skh irslctiga tioi
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one, to speak with Nieto. Nieto would not agree to this
procedure, and Tiberi told him to leave the site. Tiberi
also phoned the sheriff who apparently came to the job-
site and advised Nieto that he would have to leave. The
pour was completed without interruption. Nieto has not
returned to the site since that day.
Mulley credibly testified, without contradiction, that
due to a bulk concrete strike Villa Avila had been unable
to purchase concrete for a period of time but was able to
locate concrete at a premium price, which concrete was
being poured when Nieto entered the jobsite on August
6.
Both Mulley and Tiberi testified that on August 6
Nieto did not approach either of them to ask for permis-
sion to speak with Van Mor's representatives or employ-
ees. Rather, Nieto went directly to one of Van Mor's
foremen and commenced to speak with him, at which
time Tiberi and Mulley requested Nieto to leave the site
and advised him that he could speak with Van Mor's
foremen outside the gate. Mulley testified that he be-
lieved Nieto's purpose for coming on the site was to pull
the men off the job in furtherance of the dispute between
Plumbers Local 78 and the plumbing subcontractor.
2. Palm Springs Sun Dial
Kenneth Bell is a field representative and organizer for
Laborers Local 1184. Between June I and August 20 he
had gone to a particular jobsite in Palm Springs on var-
ious occasions, usually once a week, to service certain
employees of the masonry subcontractor on the job, J. P.
Construction Company, an employer under contract
with the Union. The "Short Form Agreement" between
Laborers Local 1184 and J. P. Construction Company
contains the following provision: "Right to Visit Jobs:
The business representative shall be allowed n any job
where or when workmen in his jurisdiction are at work."
Bell had met Curtis Frame, one of the principals of
Palm Springs Sun Dial, the project's general contractor,
during his prior visits to the site and, in accordance with
his customary practice, Bell attempted to contact Frame
or another representative of the general contractor each
time he visited the site for the purpose of servicing unit
employees of J. P. Construction Company. Laborers
Local 1184 has no collective-bargaining relationship with
Palm Springs Sun Dial, a nonunion employer.
About the end of July, Carpenters Local 1046, not a
party to this proceeding, commenced picketing Palm
Springs Sun Dial at the aforementioned jobsite in fur-
therance of a primary dispute with that contractor.
Thereupon, Frame established separate gates for his own
employees and those of the subcontractors on the job,
and caused several no-trespassing signs to be posted on
the project.5
The picketing by Carpenters Local 1046 continued in-
termittently, and it appears that employees of J. P. Con-
struction Company and other subcontractors refused to
work on several occasions. The record shows that on
August 20, Palm Springs Sun Dial executed a settlement
agreement, approved by the Regional Director on
5 The signs were identical to those pnoted by Respondent Villa Avila,
Iupro.
August 24, whereby Carpenters Local 1046 agreed to
discontinue picketing the project at gates reserved for
contractors other than Palm Springs Sun Dial, or other-
wise engaging in unlawful activity directed against sec-
ondary employers or their employees.
Despite the wording of the aforementioned no-tres-
passing sign, Bell had apparently been permitted by
Frame or another representative of the general contrac-
tor to service the employees of J. P. Construction Com-
pany, between the dates of July 30 and August 20, with-
out being accompanied by an agent of the owner.
On August 20, Bell entered the jobsite along with
John Smith, an official of Laborers Local 1184, and Dan
Sanders, another business representative of the same
union. Bell introduced Smith and Sanders to Frame, and
advised Frame that he intended to visit some unit em-
ployees on the jobsite. Frame told the union representa-
tives to leave the site, and told Bell that he would be ar-
rested if he approached any employees. Bell replied that
he was there to perform his job and proceeded to talk
with several members regarding union matters, speaking
to one member about insurance coverage, and several
other members about the nature of some scaffolding
which presented a safety problem. Thereafter, Bell re-
turned to the car where Smith and Sanders were wait-
ing, and was advised by police officers who had been
summoned by Frame that Frame wanted to have the
representatives arrested for trespassing. However, no ar-
rests were made. Before leaving, Bell advised Frame that
it would be necessary for him to continue coming back
to the job to service his people and inquired what Frame
intended to do. Frame said he would have Bell arrested
on the next occasion.
As a result of Frame's conduct, Bell caused a picket
line to be established on the next day, August 21. The
picket signs stated, "Curtis Frame guilty unfair labor
practices. Laborers Local 1184." Apparently, there was
no work stoppage by employees of any contractor on the
job as a result of such picketing.
Bell returned to the jobsite on August 22, during the
continuation of the aforementioned picketing. Upon en-
tering the jobsite, Bell went to the office to advise
Frame or a superintendent of his presence and the office
secretary indicated that Frame was outside. Bell then ap-
proached Frame and the superintendent, who were to-
gether, and advised Frame that he was on the job "to
service my contract and my people," and had some mat-
ters to take care of. Frame told Bell to get off the jobsite
and exclaimed that he intended to have Bell arrested, to
which remark Bell replied that he would leave when his
work was completed. Thereupon, Frame told his super-
intendent to get a camera, follow Bell, and take pictures
of Bell's activity while Frame went to the office to call
the police.
Bell drove to the area of the site where unit employees
were working. He proceeded to check the scaffolding
and, as he was giving certain insurance papers to an em-
ployee, another superintendent for the general contractor
approached to within a few feet of Bell and the employ-
ee and began taking pictures of them. Bell approached
the individual, who said his name was Mike Deana, and
78
VILLA AVILA
asked what he was doing. Deana acknowledged that he
had been told to follow Bell and take pictures and stated
that Frame had called the police to have Bell arrested.
Bell said he would wait for the police officer outside the
project.
The police officer arrived and, after speaking to
Frame, then stated to Bell that he felt the law did not
require or permit an arrest under the circumstances,
adding that Frame did not choose to make a citizen's
arrest. Bell has not returned to the site since that date,
testifying that he did not want to continue to be har-
rassed and subjected to such treatment.
3. Tom Sawyer Construction Company
Tom Sawyer Construction Company is the general
contractor on a project in Rancho Mirage, California. As
a result of picketing by Laborers Local 1184 in further-
ance of a primary dispute with a subcontractor on the
job, Tom Sawyer Construction Company entered into a
settlement agreement with Laborers Local 1184, ap-
proved by the Regional Director on May 15, wherein
the Union agreed to refrain from unlawful secondary ac-
tivity including picketing. Another settlement agreement
between the same parties was approved by the Regional
Director on August 14, 1979, the Union agreeing not to
picket or threaten to picket another subcontractor on the
job for the purpose of forcing or requiring the subcotl-
tractor to recognize, bargain, or enter into a collective-
bargaining agreement with the Union. Further, on
August 30, the Regional Director issued a complaint
against Laborers Local 1184 alleging that between the
dates of August and 8, the Union engaged in unlawful
secondary picketing at the jobsite in furtherance of a pri-
mary dispute with a subcontractor. This matter was set
for hearing in March 1980, and was thereafter also set-
tled.
Jesse Stinson, a field agent for Laborers Local 1184,
had been in charge of coordinating the picketing by that
Union throughout the times material herein. He had vis-
ited the jobsite on about five occasions for the purpose
of servicing the employees of various contractors em-
ploying laborers and having contracts with the Union.
These contracts contain a clause stating that "the busi-
ness representative shall be allowed on any job where or
when workmen in his jurisdiction are at work."
Stinson entered the jobsite without incident in about
mid-July, subsequent to the time no-trespassing signs had
been erected. 6 However, sometime thereafter, while
Stinson was on the picket line, Lonnie Tackett, superin-
tendent for the general contractor, hollered at him stat-
ing that if Stinson ever came on the job Tackett would
have him arrested. 7
On August 21, Stinson entered the jobsite through the
neutral gate and drove around the project looking for
unit employees. 8 As he started to leave, there being no
unit employees on the job, he observed that the gate had
I These signs were also identical to the signs posted by Respondent
Villa Avila, supra
'Tackell denied that he ever made such a statement to Stinson.
Stinson testified that there were customarily between 6 to 15 laborers
on the site working for various contractors having agreements with the
Union.
been blocked by vehicles. He drove to the construction
trailer and asked Tackett what he was trying to do, stat-
ing that he had already checked the job and was ready
to leave as none of his people were there. Tackett re-
plied that Stinson was not going anywhere, and that he
had called the sheriff to have Stinson arrested. The sher-
iff arrived 10 or 15 minutes later and said that Tackeltt
was placing Stinson under a citizen's arrest. The sheriff
handed him a citation and stated that he would have to
appear in court.
C. Analysis and Conclusions
Each of the three nonunion general contractors, Re-
spondents herein, upon the advice of the same labor con-
sultant, established similar reserve gates and set up iden-
tical no-trespassing signs in order to attempt to counter-
act the effect of common-situs picketing by various labor
organizations. As succinctly stated by the counsel for
each of Respondents, in his brief, these precautions were
taken "to stop employees from being unlawfully induced
to walk off the job, and to prevent vandalism and vio-
lence." It is clear that prior to the labor disputes which
precipitated this action by Respondents, the business rep-
resentatives of the Unions herein had not been, or would
not have been, denied access to the jobsites.
Subsequent to about the end of August, it appears that
the labor disputes at each of the jobsites had been re-
solved, or at least that the disputes had entered into a
period of quiescence, and that the picketing had ceased.
Thereafter, so far as the record shows, no union repre-
sentatives involved herein made any further attempt to
enter any of the jobsites for the purpose of policing con-
tracts and servicing employees.
In Scott Hudgens v. N.L.R.B., 424 U.S. 507, 522 (1976),
the Supreme Court, citing N.L.R.B. v. The Babcock &
Wilcox Company,9 stated:
The Babcock & Wilcox opinion established the
basic objective under the Act: accommodation of §
7 rights and private property rights "with as little
destruction of one as is consistent with the mainte-
nance of the other."'2 The locus of that accommo-
dation, however, may fall at differing points along
the spectrum depending on the nature and strength
of the respective § 7 rights and private property
rights asserted in any given context. In each generic
situation, the primary responsibility for making this
accommodation must rest with the Board in the first
instance. See N.L.R.B. v. Babcock & Wilcox, supra
at 112; cf. N.L.R.B. v. Erie Resistor Corp., supra at
235-236; N.L.R.B. v. Truckdrivers Union, 353 U.S.
87, 97. "The responsibility to adapt the Act to
changing patterns of industrial life is entrusted to
the Board." N.L.R.B. v. Weingarren. Inc., 420 U.S.
251, 266.
12 351 U.S. at 112. This language was explicitly reaffirmed as
stating "the guiding principle" in Central Hardware Co. v.
N.L.R.B.. 407 U S. 539. 544.
9 351 U.S. 105 (1965)
79
I)CISI()NS ()OF NATIONAL. I.ABOR REI.ATIONS BOARD
Babcock & Wilcox involved an employer's refusal to
permit distribution of union literature by noneniploye
organizers on company owned parking lots. Customarily,
as abundantly pointed out by counsel for the Respond-
ents herein, the balance is struck in such or similar situa-
tions in favor of an employer's right to prohibit such
nonemployee organizational activity. See Sears Roebuck
& Co. v. San Diego County District Council of Carpenters,
436 U.S. 180, 205 (1978); Monogram Models, Inc., 192
NLRB 705 (1971): N.L.R.B. v. Taninent. Inc., 451 F.2d
794 (3d Cir. 1971).
Scott Hudgens, a case remanded to the Board by the
court, involves a lessor's refusal to permit economic
picketing by employees of a lessee in front of the lessee's
store located in an enclosed mall owned by the lessor.
Upon applying the balancing test enunciated by the
court, the Board, in its Second Supplemental Decision in
Scott Hudgens, °0 determined that, under the circum-
stances, the Section 7 activity, namely, the union's right
to communicate with both the buying public and with
those employees of the lessee who elected to refrain
from honoring the picket line, outweighed the lessor's
private property rights. Significantly, the Board stated,
"In leasing the shops to the merchants, Hudgens [the
lessor] necessarily submitted his own property rights to
whatever activity, lawful and protected by the Act,
might be conducted against the merchants had they
owned, instead of leased, the premises." See also Frank
Visceglia and Vincent Visceglia, /a Peddie Buildings, 203
NLRB 265 (1973), enforcement denied 498 F.2d 43 (3d
Cir. 1974).
And in a similar case, Seattle-IFirst National Bank, 243
NLRB 898 (1979), the Board recently applied the ration-
ale of Scott Hudgens and found that the private property
interests of an office building owner must yeld to the
Section 7 right of a union to engage in economic picket-
ing, in support of contract demands directed against a
lessee, conducted by union members who were not em-
ployees of the lessee.
Respondents herein do not deny that employees' Sec-
tion 7 rights protected by the Act include the right to
receive the various services of union business agents
which services are necessary to police existing collec-
tive-bargaining agreements or to negotiate new agree-
ments. See Fafnir Bearing Co., 146 NLRB 1582, 1585
(1964), enfd. 362 F.2d 716 (2d Cir. 1968); 'riangle Plas-
tics, Inc., 191 NLRB 347 (1971). Rather, Respondents
maintain that union-represented employees of subcon-
tractors can reasonably communicate with their business
representatives and obtain such services in a manner
which will compromise only slightly the right of the
general contractors to control access to the jobsites in-
volved herein. Essentially, Respondents suggest that
much of the necessary communication and business be-
tween employees and their union representatives may be
conducted off the jobsite. Further, Respondents state
that when access to the jobsite by a business representa-
tive is imperative, for example, to inspect a reported
safety violation, Respondent would willingly escort the
agent around the site for the purpose of conducting an
"' 230 NLRH 414 (19771
inestigation. In this manner, according to Respondents'
brief, union business agents would have access to private
property to the "extent needed to respect legitimate §7
rights." This latter procedure suggested by Respondents
appears consistent with the language on the aforemen-
tioned no-trespassing signs, which establish the require-
ment that union representatives check in at the office of
the general contractor and be accompanied by an agent
of the owner.
As a practical matter, what Respondents suggest is
that as a condition precedent to permitting union repre-
sentatives access to the jobsite, the business agent must
report to the general contractor, state the nature of his
business at the jobsite with sufficient particularity to sat-
isfy the general contractor that the matter cannot be han-
dled off the premises and, if these conditions are met, the
business agent must wait until a representative of the
general contractor is available to accompany the business
agent to the area where he may conduct his stated busi-
ness. Moreover, it appears that Respondents would have
the escort remain with and observe the business repre-
sentative until his work is completed. Thus, Respondents
would be willing to forego to a circumscribed degree
whatever property rights they possess as general con-
tractors, in exchange for permission to engage in surveil-
lance of union activity to the extent necessary to insure
that such activity is legitimate.
Respondents' stated reason for concern is the potential
for abuse which is inherent in union-representative access
to the jobsite, particularly during labor disputes. Thus,
Respondents point out that union representatives may
engage in unlawful conduct by causing secondary boy-
cott activity, that labor disputes have not infrequently re-
sulted in vandalism, violence, and arson, and that the
possibility of such conduct is a legitimate reason for ex-
cluding union representatives and other individuals from
the jobsite or, if necessary, for escorting them while on
the site.
The General Counsel does not contend that Respond-
ents herein may not institute and enforce reasonable rules
to safeguard their property interests. Without purporting
to delimit the parameters of such permissible rules, it
does not appear unreasonable to establish the procedure
of requiring union representatives to notify the general
contractor of their presence on the jobsite,' l or perhaps
even of the general locus and nature of their business on
the site such as, for example, to service certain employ-
ees, investigate potential safety violations, check contract
compliance, resolve grievances, or perform a combina-
tion of these or other duties. Should a business repre-
sentative's prior conduct, however, reveal that the stated
purpose is pretextual and is designed to gain access to
the site for an unlawful reason, Respondents would then
be able to deny entry to the business representative. Sim-
ilarly, should a business representative engage in conduct
which would warrant his eviction from the site, Re-
spondents would not be precluded from taking such
action. 2
* ISee nn o Corp.. 206 NLRH 4 (1973).
I! Set Blanchard (ConIrucion Conmpany. 234 NLRH 1035 (1978): Phillip
Dtilao & Soni. Itnc. 177 NL.RH K25 (196h9).
80
VILI.A AVIILA
The aforementioned procedure appears to he fairly
consistent with common and accepted practice obtaining
at construction sites, and would appear to effectively ac-
commodate the interests and obligations of all parties in
a manner which is harmonious with the principle enunci-
ated by the court in Scott Hudgens v. .N.L.R.B. .. supr.
and by the Board in Scott Hudgen.s. supra,. runk VIisceiloa
and Vincent Visceglia, /a Peddie Buldings. s.vpr, and Se-
attle-First National Bank, supra. More restrictive rules.
however, such as those measures the Respondents would
impose herein, would not appear to afford Respondents
the protection they seek, and would significantly inhibil
unions from effectively policing the terms and conditions
of employment customarily embodied in collective-bar-
gaining agreements.
While the aforementioned safeguards available to Re-
spondents should assuage many of their concerns. it is
certainly a distinct possibility, as Respondents emphasize,
that a union business agent, under the guise of servicing
employees on the site, could attempt to induce unlawful
secondary activity. However, this possibility exists re-
gardless of whether business representatives have access
to the site, and causing unit employees or their employ-
ers to speak with union representatives off the jobsite, as
Respondents apparently suggest, will certainly not afford
Respondents any measure of assurance that the business
representatives will limit such communication to legiti-
mate rather than unlawful purposes. Thus, the stringent
safeguards which Respondents purpose herein will not,
as a practical matter, result in an effective solution to Re-
spondents' concerns.
Respondents argue that much business and communi-
cation between union representatives and unit employees
and their employers could be conducted off the premises,
either at curbside, at the union hall or elsewhere, and by
telephone. However, the inefficiency of such methods is
abundantly apparent, particularly in the construction in-
dustry which customarily requires the frequent move-
ment of employees, materials, and machinery from one
job to another, on an intermittent and irregular basis, and
under circumstances requiring varying conditions of
safety, changes in the assignment and coordination of
work among various crafts, and the continual hiring and
laying off of employees. To preclude or severely restict
union-representative access to the jobsite would signifi-
cantly impair a business agent's ability to insure that sig-
natory subcontractors are adhering to their contractual
commitments, and to the extent that such policing of the
contract is impaired, so are employees' Section 7 rights
diminished.
Nor, as Respondents suggest, should it be incumbent
upon unit employees to initially determine contract com-
pliance and thereafter report possible contract violations
to the business agent for further handling. While such a
method is commonly utilized, that is, the summoning of a
business representative by an employee to resolve a par-
ticular problem, it is simply supplemental to more direct
and therefore more effective policing of contracts, and is
clearly not an effective substitute for unannounced visits
to the jobsite which right has been contractually granted
by the signatory subcontractors to the Unions herein.
Further, to place such extra-contractual restraints on
union business re-resentatives, as Respondents suggest
herein, would have the effect of in essence. nullifying
and rendering meaningless the ery important provisions
of the collective-hargailig agreements which do not so
restrict union representatives' access to unit employees,
and their employers, on construction sites.
It is abundantly clear that a satisfactory relationship
between each subcontractor and the union representative
of that subcontractor's employees is necessary to insure
that the entire construction project, for which Respond-
ents, as general contractors, have assumed responsibility,
progresses according to a predetermined and customarily
exacting schedule. Obviously, one major concomitant of
such a satisfactory relationship is the procedure whereb,
disputes, grievances, and matters of contract adherence
are readily resolved in a manner which alleviates or
minimizes job crippling picketing or work stoppages. and
parties to collective-hbargaining agreements have custom-
arily found that the unrestricted access of business repre-
sentatives to the jobsite is necessary to serve this pur-
pose. The benefits flowing to the general contractors
from such a mnodus opcrandi are obvious.
Further, to impose such severe restrictions upon the
communication between business representatives and sub-
contractors and their employees would not appear to
promote Respondents' interests in any respect and, rather
than provide solutions to the problem perceived by Re-
spondents, and accommodation of the parties' respective
rights, would likely have the opposite effect of enmesh-
ing Respondents in labor disputes with various unions as
a result of disagreement over application of the suggest-
ed procedure.
Respondents b hiring subcontractors to perform
work on the jobsites, hae, thereby invited these subcon-
tractors to, i effect, maintain a temporary place of busi-
ness on the site, at which locus the working conditions
of the subcontractors' employees are necessarily estab-
lished. It may therefore be reasonably inferred that Re-
spondents, by hiring such subcontractors, thereby "nec-
essarily submitted their on property rights to whatever
activity, lawful and protected by the Act," might be en-
gaged in by union business agents in the performance of
their duties vis-a-vis these subcontractors who have con-
tractually granted union business agents unrestricted
access to the site. See Scott Hudgens, 230 NLRB 441,
supru.
The argument advanced by Respondents that a union's
Section 7 rights are greater in the Scott Hudgens or Seat-
tle-First National Bank context of economic picketing of
a lessees' premises is without merit. There are significant
and compelling reasons for permitting the exercise of
Section 7 rights in the closest possible proximity to the
locus of the employees' workplace, and in this connec-
tion there is no real distinction between the instant case
and the situation posed by the aforementioned cases.
While it is certainly difficult, and perhaps an exercise in
futility, to quantify the relative importance of various
Section 7 rights vis-a-vis private property rights, it would
appear that, contrary to Respondents' contentions, the
private property' rights of a general contractor should be
required to yield to an even greater extent than those of
X81
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a lessor. Thus, the general contractor receives substantial
and immediate economic benefit from a harmonious rela-
tionship between the union and signatory subcontractors.
Such a relationship is enhanced by readily available ave-
nues of communication, unimpeded by barriers which
could hinder the speedy resolution of the myriad prob-
lems which are intrinsic to the construction industry. On
the other hand, one would be hard pressed to discern
any such immediate benefit to a lessor in the case of eco-
nomic picketing of a lessee's premises.
As a result of the foregoing, I find that Respondents'
property rights, under the factual setting herein, must, on
balance, yield to the Section 7 rights under the Act, and
that Respondents may not deny or restrict jobsite access
to union representatives except to the limited extent dis-
cussed generally above.
Should Respondents desire to require notification as a
precondition for access to the jobsite by union repre-
sentatives, it is an implied corollary of such a require-
ment that the union business representatives must be so
apprised in a manner which would permit compliance.
Moreover, as I have found above, the rules Respondents
sought to institute and enforce do not comport with the
aforementioned notification procedure and are overly
broad and restrictive. Thus Respondents, upon the
advice of their labor consultant, erected no-trespass signs
specifically for the purpose of limiting business agent
access to the sites unless, as the signs state, the repre-
sentatives "check in at office and [are] accompanied by
an agent of the owner."13 As I have found that Re-
spondents are not entitled to place such restrictions on a
business agent's access to the jobsite, I further find Re-
spondents' subsequent conduct in enforcing these or simi-
lar restrictions to be unlawful.
Field Representative Nieto was ejected from the job-
site in Pico Rivera in late July, at a time when he was
speaking with an employee of Van Mor Concrete Con-
tractors with whom Cement Masons Local 627 had a
collective-bargaining agreement. Shortly thereafter, the
attorney for the Union directed a telegram to Respond-
ent Villa Avila advising that Nieto had been on the job
to service the cement masons employed by Van Mor,
and otherwise engage in lawful union activity, and re-
quested that Villa Avila immediately contact the Union's
attorney to arrange for peaceful entry upon the jobsite.
Respondent did not reply in a timely fashion, and its vit-
riolic reply telegram of August 6, requiring Cement
Masons Local 627 to furnish "evidence" supporting
Nieto's need for access to the job, strongly suggests that
Nieto's presence on the site for any reason would not be
acceptable to Respondent.
On August 6, Van Mor commenced to pour concrete
slabs for the first time, and it appears that Van Mor
would need a full complement of employees to perform
such work. Moreover, so far as the record shows,
Cement Masons Local 627 had not theretofore engaged
in unlawful secondary activity at this site. Under these
1" Respondents' officials and agents who testified herein placed various
and more restrictive interpretations on the meaning of these signs, and
the extent to which they would deny or limit business agent access to the
site appears to vary significantly in direct relation to each individual Re-
spondent's antipathy toward the Union.
circumstances, it is reasonable to assume that Nieto had a
legitimate reason to be on the job,t 4 and Respondent has
presented no probative evidence which would warrant a
contrary conclusion. I therefore find that the conduct of
Respondent in evicting Nieto from the jobsite on both
occasions was violative of Section 8(a)(1) of the Act.
Field Representative Bell had visited the jobsite in
Palm Springs on various prior occasions, and notified
Respondent Palm Springs Sun Dial of his presence on
the job on each occasion. Until August 20 he was per-
mitted to perform his duties at the site without an escort,
even though the instant no-trespassing signs had been
erected prior to that date. Further, the record discloses
no unlawful conduct by Laborers Local 1184 at this site.
On August 20, Bell was threatened with arrest upon en-
tering the site despite the fact that he had exhibited no
intent to engage in activity at variance with his stated
purpose. Similarly, on August 22, after establishing a
picket line to protest Respondent's unlawful conduct,'
Bell again expressed a legitimate purpose for being on
the job and was again threatened with arrest. Under
these circumstances, I find that Bell was priviledged to
enter the property, and I find that Respondent's conduct
in having him followed and photographed, and summon-
ing the police, was violative of Section 8(a)(l) of the
Act. See Blanchard Construction Company, supra.
Field Agent Jesse Stinson had been on the jobsite in
Rancho Mirage on various occasions and, despite the in-
stant no-trespassing signs and the apparent fact that he
had not advised Respo)ndent Tom Sawyer Construction
Company of his presence, he had not been evicted from
the premises or told that he must have permission to
enter the site until August 21, on which date his egress
from the site was blocked. I credit Stinson and find that
prior to this date Tackett told him he would have him
arrested should he again come on the job. Such an un-
equivocal threat, however, certainly does not comport
with Respondent's duty to advise the Union of reason-
able conditions precedent to gaining access to the jobsite.
Indeed, had Stinson been so advised, and had he thereaf-
ter reported to Respondent prior to entering the jobsite,
Respondent could have then advised him that no unit
employees were on the job and this perhaps would have
obviated any need for Stinson to enter the site. I find
that Respondent's conduct herein, in blocking Stinson's
egress from the site, is likewise violative of Section
8(a)(l) of the Act.
Whether, under other circumstances, Respondent
would have been able to deny Stinson access to the job
is problematical. Thus, had Stinson been advised of a re-
quirement that he notify Respondent of his intent to
enter the jobsite, and had he thereafter entered the job-
site without adhering to this condition, Respondent may
very well have been privileged to eject Stinson from the
site, particularly in light of the fact that this very Union
had allegedly been engaged in extensive unlawful activi-
ty at the jobsite, which activity was apparently ongoing
' I credit Nieto's testimony that he requested permission on August 6
to enter the jobsite for the purpose of checking compliance with the con-
tract.
I a There is no contention that this picket line was unlawful.
82
VILLA AVILA
at that very time, and that there were no unit employees
on the job when Stinson drove onto the site.
As a result of the foregoing, I find that by unnecessar-
ily restricting union business agents' access to the site.
each Respondent has violated Section8(a)(1) of the Act.
Moreover, the conduct of Respondents herein in threal-
ening the arrest of business agents, following them and
photographing them in the performance of their legiti-
mate duties on the jobsite, and blocking their egress from
the site, particularly when, as the record discloses, this
occurs in view of employees whose Section 7 rights are
affected by Respondents' conduct, is violative of Section
8(a)(1) of the Act. Scott Iludgens. upra.u Blinchurd Con-
struction Conmpanv. upr; .-lhrahuamson ChrVcslr-Plrinolith.
Inc., 234 NI.RI 955, 971-972 (1978).
CON( I LSiONS Ot L.w
1. Each Respondent herein 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. Each Union herein is a labor organization within the
meaning of Section 2(5) of the Act.
3. Each Respondent has violated Section 8(a)(l) of the
Act b acts and conduct which unduly restricts the right
of union business representatives to enter construction
sites for the purpose of servicing unit employees and po-
licing contracts with subcontractors.
TH R MII.DY
Having found that Respondents engaged in certain
unfair labor practices, I recommend that they be re-
quired to cease and desist therefrom and from any like or
related conduct, and that they each post an appropriate
notice, attached hereto as "Appendix," at the construc-
tion sites involved herein where construction work is
continuing. Further each Respondent shall post copies of
the notice at its principal place of business wherever no-
tices to construction employees are customarily posted,
and shall send copies of the notice to the respective
Union affected by the conduct found to be unlawful
herein.
Based upon the foregoing findings of fact, conclusions
of law, and the entire record herein, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 1 6
The Respondents, Villa Avila, Pico Rivera, California;
Palm Springs Sun Dial, Palm Springs, California; and
Tom Sawyer Construction Co., Rancho Mirage, Califor-
nia; their officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Interfering with the right of union agents to enter
construction sites for the purpose of engaging in lawful
16 In the eellt no exceptions are filed as pro,,ided h) Sec 102 40 of
the Rules aid Regulations if the National Labor Relations Itoard. the
findings, conclulsions, and recommended Order herein shall, as prolided
In Sec 102 48 of he Rules aid Regulations, be adopted h he Board and
become its findings, conclusilns. and Order, and all obhlecttio thereto
shall be deemed alsed for all purposes
union activity related to the servicing of unit employees
and policing of contracts with signatory subcontractors.
(b) Erecting signs, threatening or causing arrest, block-
ing ingress or egress, photographing or surveilling, or en-
gaging in any like or related conduct which unduly re-
stricts the right of union business representatives to serv-
ice unit employees and police contracts with signatory
contractors.
2. Fake the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Post at the construction sites involved herein
where construction is continuing, copies of the attached
notice marked "Appendix."7 Post copies of the notice
at their principal place of business wherever notices to
construction employees are customarily posted and send
copies of the notice to the respective Union affected by
the conduct found to be unlawful herein. Copies of said
notice, on forms provided by the Regional Director for
Region 21, after being duly dated and signed by an au-
thorized representative of Respondents, shall be posted
by Respondents immediately upon receipt thereof, and
be maintained by them for 60 consecutive days thereafter
at the aforementioned locations, in conspicuous places,
where notices to employees are customarily posted. and
shall be sent to the respective Unions as set forth above.
Reasonable steps shall be taken by Respondents to insure
that said notices are not altered, defaced, or covered by
anv other material
17 In he erent hal Ihis Order is enforced b a Judgmeni of a United
Slates Curl Oif Appeals. ther words in the notice reading "Posted by
Order of the NallOtiil [.alhr Relallons Hoard" shall read "Posled Pursu-
anl to a Judigmitnt iof hre I'tlled States Court f Appeals Enforcing all
()rder the National I Iahor Relations Board
APPENDIX
No riCI To EMPLOYEES
P'OSII D BY ORDER OF THE
NAIIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice
WE W. I. NOT prohibit union representatives
from entering the jobsite for the purpose of servic-
ing employees and policing contracts with subcon-
tractors.
WE WILL NOT erect signs, threaten or cause the
arrest of union business agents, block their ingress
or egress from the jobsite, photograph or engage in
surveillance of their activity, or engage in similar
conduct which would tend to inhibit or restrict the
right of union business agents to service employees
and police contracts with subcontractors on the job-
site.
WE wl I NOT in any like or related manner, in-
terfere with, restrain, or coerce employees in the
83
84 I)t'ISI()NS ()1 NA I I()NAI LAB(R Rl A'I( )NS ()ARDI
exercise of rights guiranltced them by Section 7 of
the National Lahor Relations Act.
VIII.A AVIIA; OR TOM SXWIR CON-
STRUCTION; OR PAI M SPRIN(GS SUN DIAl