Nonemployee union representatives may enter construction site despite opposition of property owner
In Wolgast Corp. v. NLRB (6th Cir. Nov. 3, 2003), the Sixth Circuit enforced an NLRB order finding that a property owner committed an unfair labor practice by barring union representatives from accessing a construction jobsite.
The court rejected arguments based on the nonemployee status of the representatives, who sought entry for primary representation purposes, not for organizing or publicizing disputes. The union had a contract with one of the subcontractors, and the contract including an access clause requiring the subcontractor to allow entry by union representatives.
The court distinguished Lechmere v. N.L.R.B., 501 U.S. 527 (1992), in which the Supreme Court held that an employer may categorically exclude nonemployee union organizers from its property subject to two narrow exceptions.
Although Lechmere says the National Labor Relations Act “confers rights only on employees,” here the union agent did not seek access for organizing employees, handbilling patrons, boycotting, or other similar activity in exercise of the union’s “derivative” § 7 rights, but “as the direct representative of the subcontractor’s employees under the authority of the collective bargaining agreement.” It was thus the rights of the subcontractor’s employees which were directly at issue.
Balancing of property rights and rights under the National Labor Relations Act has long been one of the tough issues of labor law. This case seems fairly straightforward (but obviously the attorneys for the losing side would differ). One issue that is left open is to what extent this result depended on the existence of and interpretation of the contractual access clause. The employee rights would seem to exist independently of the clause, but to be strengthened as a result of it.
Note that the court did not — and could not — hold that the property owner was bound to honor the contractual obligation, to which it was not a party.
