N.L.R.B. v. Villa Avila, AFL-CI

• Citation: 673 F.2d 281
• Decision Date: 29 March 1982
• Docket Number: AFL-CI,No. 81-7155,I,81-7155
• Parties: 110 L.R.R.M. (BNA) 2238, 93 Lab.Cas. P 13,439 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VILLA AVILA, Palm Springs Sun Dial and Tom Sawyer Construction Co., Respondents. Laborers International Union of North America, Local 1184,ntervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 281

673 F.2d 281

110 L.R.R.M. (BNA) 2238, 93 Lab.Cas. P 13,439

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VILLA AVILA, Palm Springs Sun Dial and Tom Sawyer Construction Co., Respondents Laborers International Union of North America, Local 1184 AFL-CIO, Intervenor.

No. 81-7155.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 7, 1982.

Decided March 29, 1982.

Linda Dreeben, N. L. R. B., Washington, D. C., for petitioner; Kenneth B. Hipp, N. L. R. B., Washington, D. C., on brief.

James Winkler, Venice, Cal., for respondents; Stephen D. Atkinson, Atkinson, Andleson, Loya, Rudd & Romo, Long Beach, Cal., on brief.

Appeal from an Order of the National Labor Relations Board.

Before CHOY, GOODWIN and FARRIS, Circuit Judges.

GOODWIN, Circuit Judge.

The Board seeks enforcement of its cease and desist order directed to three contractors who had refused union business agents permission to enter construction sites under their control on what the administrative law judge found to be legitimate union business. Enforcement is granted, subject to certain guidelines.

In reviewing conflicting testimony in the record this court was aided by a comprehensive memorandum of findings and conclusions prepared by the administrative law judge. We are required to treat the facts so found as established if they are supported by substantial evidence on the record as a whole. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); N. L. R. B. v. Pacific Intern. Rice Mills, Inc., 594 F.2d 1323, 1325 (9th Cir.), cert. denied, 444 U.S. 898, 100 S.Ct. 206, 62 L.Ed.2d 134 (1979). The record supports the factual determinations. See N. L. R. B. v. Anchorage Times Publishing Co., 637 F.2d 1359, 1364 (9th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 137, 70 L.Ed.2d 115 (1981); Clear Pine Mouldings, Inc. v. N. L. R. B., 632 F.2d 721, 724 (9th Cir. 1980), cert. denied, 451 U.S. 984, 101 S.Ct. 2317, 68 L.Ed.2d 841 (1981).

In N. L. R. B. v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975 (1956), the court stated the objective of the Board to be the accommodation of employees' rights ¹ to have their collective bargaining agreement enforced and administered and the employer's private property rights "with as little destruction of one as is consistent with the maintenance of the other." This language has been reaffirmed as stating the guiding principle to be applied in settings other than a union's organizational campaign. See, e.g., Hudgens v. N. L. R. B., 424 U.S. 507, 522, 96 S.Ct. 1029, 1037, 47 L.Ed.2d 196 (1976). The accommodation, however, may vary depending on the nature and strength of the asserted § 7 rights and private property rights. See, e.g., Seattle-First Nat. Bank v. N. L. R. B., 651 F.2d 1272, 1275 (9th Cir. 1980). The primary responsibility for making that accommodation rests with the Board. Hudgens, supra, 424 U.S. at 522, 96 S.Ct. at 1037.

In making this accommodation, the courts and the Board have recognized a distinction between activities conducted on the premises by employees and those by nonemployees. When nonemployee union representatives seek to enter private property, the Board must consider not only the strength of the employer's and employees' rights and interests, but also whether union representatives have reasonable alternatives to entry onto the employer's property.

Although the companies in this case were not the primary employers of the employees whose interests the unions claim they protect, the companies were nevertheless "employer(s)" within the meaning of § 2(2) of the Act. Section 2(3) of the Act similarly states that the employees protected by the Act "shall not be limited to the employees of a particular employer." Accordingly, the companies are employers within the meaning of § 8(a)(1) with respect to the employees working on the jobsites. Seattle-First Nat. Bank v. N. L. R. B., supra, 651 F.2d at 1273, n.2.

The Board admits that the precise issue in this case has not yet been squarely before the courts, but contends that by analogy cases dealing with nonconstruction work places and other types of unions provide adequate guidance for the result here. We agree.

Here we have nonunion general contractors who are in control of worksites which are visited from time to time by union workers brought on the premises to perform subcontracts. Some of the subcontractors have bargaining agreements with building-trades unions and others do not. Those workers who are covered by bargaining agreements have rights that are protected under § 7 of the Act. These rights include the right to be visited by union representatives at reasonable times and places to conduct legitimate union business. In balancing the rights of persons in possession of property against the statutory rights of unions to exercise § 7 rights, the Board has broadly construed § 7 and has...