Hearn Construction

National Labor Relations Board - Board Decisions

Jun 30, 2009

354 N.L.R.B. 289 (N.L.R.B. 2009)

354 NLRB No. 37
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Hearn Construction and Carpenters’ Union Local
180, United Brotherhood of Carpenters and
Joiners of America. Case 20–CA–33534
June 30, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On March 10, 2009, Administrative Law Judge Mary
Miller Cracraft issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel and the Charging Party filed cross-
exceptions and supporting briefs. All parties filed an-
swering briefs.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs2 and has decided to affirm the judge’s rulings,
findings,3 and conclusions and to adopt the recom-
mended Order.4

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, __ F.3d
__, 2009 WL 1676116 (2d Cir. June 17, 2009); New Process Steel v.
NLRB, 564 F.3d 840 (7th Cir. 2009), petition for cert. filed __
U.S.L.W. __ (U.S. May 27, 2009) (No. 08-1457); Northeastern Land
Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), rehearing denied No.
08-1878 (May 20, 2009). But see Laurel Baye Healthcare of Lake
Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petition for re-
hearing filed Nos. 08-1162, 08-1214 (May 27, 2009).
2 The General Counsel’s motion to strike the Respondent's brief in
support of its exceptions is denied inasmuch as the brief substantially
complies with the requirements of Sec. 102.46 of the Board’s Rules and
Regulations. See La Gloria Oil & Gas Co., 337 NLRB 1120 fn. 1
(2002).
3 The Respondent excepts 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.
We affirm the judge’s finding that the Respondent violated Sec.
8(a)(1) by causing the arrest of Union representatives who were en-
gaged in lawful Sec. 7 activity on public property. We do not pass on
the judge’s alternative theory of violation that assumes, arguendo,
Union Representative Trent Schager was arrested for trespass on pri-
vate property. We also find no need to pass on the General Counsel’s
alternative theory of violation under BE&K Construction Co. v. NLRB,
536 U.S. 516 (2002). Finally, we do not pass on the General Counsel’s
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Hearn Construction, Vaca-
ville, California, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Dated, Washington, D.C. June 30, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Kathleen C. Schneider and Jason Wong for General Counsel.
Dennis B. Cook of Sacramento, California, for Respondent.
Matthew J. Gauger of Sacramento, California, for the Charging
Party.
David Alderson of Fairfield, California for the City of Fairfield,
California.
DECISION
MARY MILLER CRACRAFT, Administrative Law Judge. Hear-
ing in this case was held in San Francisco, California, on De-
cember 9, 2008, pursuant to the complaint and notice of hearing
issued by the Regional Director for Region 20 of the National
Labor Relations Board on October 31, 2007. The complaint is
based on a charge filed on August 10, 2007, by Carpenters’
Union Local 180, United Brotherhood of Carpenters and Join-
ers of America (the Union). The complaint alleges that Hearn
Construction1 (Respondent) caused the arrest of two representa-
tives of the Union in violation of Section 8(a)(1) of the National
Labor Relations Act.2
All parties were provided full opportunity to appear, to in-
troduce relevant evidence, to examine and cross examine wit-
nesses, and to argue the merits of their respective positions. On
the entire record, including my observation of the demeanor of
the witnesses,3 and after considering the briefs filed by counsels

exception to the judge’s failure to find a separate 8(a)(1) violation for
the Respondent’s conduct in denying union representatives access to,
and seeking their removal from, public property. Such a finding would
be cumulative of the violation found and would not materially affect
the remedy for the Respondent’s misconduct.
There are no exceptions to the judge’s dismissal of the allegation
that the Respondent violated Sec. 8(a)(1) by threatening to cause the
arrest of union representatives.
4 We deny the Charging Party’s request for extraordinary remedies
because we find that the Board’s traditional remedies for the unfair
labor practice found herein are sufficient.
1 The name of Respondent appears as corrected at the hearing.
2 29 U.S.C. §158(a)(1).
3 Credibility resolutions have been made based upon a review of the
entire record and all exhibits in this proceeding. Witness demeanor and
inherent probability of the testimony have been utilized to assess credi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
for the General Counsel, the Union, and the Respondent, I
make the following findings of fact and conclusions of law.
FINDINGS OF FACT
Respondent, a general contractor in the construction industry,
is an employer engaged in interstate commerce within the
meaning of Section 2(2), (6), and (7) of the Act
Respondent admits and I find that at all material times it has
been a general contractor in the construction industry perform-
ing both residential and commercial construction. During a
relevant 12-month period, Respondent admits that it provided
services valued in excess of $50,000 to enterprises located
within the State of California and that these enterprises each
met the Board’s standards for the assertion of jurisdiction on
the basis of direct involvement in interstate commerce. Thus,
Respondent admits that it meets the Board’s standards for as-
sertion of jurisdiction on the basis of indirect involvement in
interstate commerce. Based upon these facts, Respondent ad-
mits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act
The complaint alleges that the Union has been a labor or-
ganization within the meaning of Section 2(5) of the Act. Re-
spondent admits this allegation and I so find.
In May 2007,4 Respondent began work at the southwest
corner of the intersection of Mangels Boulevard and Business
Center Drive in Fairfield, California, constructing an adminis-
trative headquarters facility for NorthBay Healthcare.
In January 2007, Respondent entered into construction con-
tracts for a headquarters building for NorthBay Healthcare at
the southwest corner of Mangels Boulevard and Business Cen-
ter Drive (the jobsite) in Fairfield, California. The jobsite en-
compassed both public and private land. Pursuant to Section
16.4.3 of the Fairfield City Code, Respondent received an en-
croachment permit in February5 to perform some of the head-
quarters work within the public right-of-way. The public right-
of-way work included grading, landscaping, irrigation and
sidewalk installation. 6
Respondent began work in May. Respondent enclosed both
the public and private land by erecting a chain-link fence

bility. Testimony contrary to my findings has been discredited on some
occasions because it was in conflict with credited testimony or docu-
ments or because it was inherently incredible and unworthy of belief.
4 All dates are in 2007 unless otherwise specified.
5 The encroachment permit was issued in February 2007. Although
the construction completion estimate was February 2008, the en-
croachment permit was issued only until expiration of Respondent’s
insurance, June 15, 2007. This was a standard City practice when the
insurance would expire prior to the anticipated completion of the pro-
ject. The City did this to ensure that it would receive an updated insur-
ance policy. Upon receipt of such a policy, the City’s practice was to
extend the encroachment permit through the anticipated completion
date.
6 All permits granted subject to 16.4.3 are subject to the right of way
of any person entitled to use the public right of way for any purpose for
which it may lawfully be used.
around the jobsite.7 The chain-link fence along the north and
west sides of the project followed Mangels Boulevard as it
curved toward the intersection with Business Center Drive. The
chain-link fence on Mangels Boulevard abutted the back edge
of the curb, i.e., the portion of the curb furthest from the street.
Thus, inside the Mangels Boulevard chain-link fence, approxi-
mately the first 25 feet of property abutting the fence was pub-
lic property. Immediately outside the fence were the curb and
then a lane of traffic.
Respondent was granted an easement onto property just south
of the jobsite
In addition to the jobsite property, Respondent utilized a
temporary construction easement onto the adjoining property
immediately south of the jobsite (the easement area).8 This
easement included a right to access for construction vehicles
and other reasonable access in connection with construction of
the headquarters facility. The property on which the easement
area was located was owned by NorthBay Healthcare Group.
The property was enclosed by a barbed-wire fence and was
separated from the jobsite by the chain-link construction fence.
The Union was involved in an area standards dispute with
Sommerkal Construction, Inc., a nonunion concrete subcon-
tractor at the jobsite
Union field representative Mike Johnson first visited the job-
site in May. He spoke with Sommerkal foreman John (last
name unknown) and Sommerkal nonunion carpenter Andrew
Schmidt. In a conversation with Schmidt, Johnson ascertained
Schmidt’s wages and benefits and concluded that they did not
meet the area standards negotiated by the Union. By letter dated
June 22, the Union wrote to Sommerkal that it understood that
Sommerkal did not pay the wages and fringe benefits estab-
lished by the Union in the geographic area in which Sommerkal
was working thus undermining the conditions established by
the Union for its members. The letter disclaimed any interest in
representation. Additionally, the letter requested that Sommer-
kal furnish any information contrary to the Union’s understand-
ing that Sommerkal did not pay area standard wages and bene-
fits. The Union received no response from Sommerkal.
On June 29, the Union began picketing at the jobsite
After ascertaining that Sommerkal was at the jobsite, the Un-
ion began picketing on June 29. Picket captain Mike Johnson,
union employee Trent Schager, and several out-of-work union
carpenters carried signs declaring that Sommerkal did not pay
area standards. There was only one gate at the jobsite when
picketing commenced. The picketers walked back and forth at
that gate, an approximately 16 to 20 foot opening in the chain-
link fence running along Mangels Boulevard. Two sections of
the chain-link fence swung inward at a 90 degree angle to
Mangels Boulevard in order to create the gate opening. The

7 The encroachment permit requires placement of construction barri-
cades prior to commencement of work and to remain in place until
construction is completed.
8 The easement was entered into between NorthBay Healthcare
Group, the property owner, and NexCore Management, Inc., general
partner of NorthBay Headquarters, LP, on behalf of NorthBay Health-
care Corporation as tenant of the headquarters building.
HEARN CONSTRUCTION 3
picketers walked along the curb between the gates inside the
chain-link fence but staying on the public right-of-way portion
of the project, i.e., the first 25 feet off of Mangels Boulevard.
On June 29, Respondent created a “dual gate” system at the
jobsite designating Gate 1 for Sommerkal and other nonunion
contractors
By letter of June 29, Respondent announced that Gate 1 was
for the exclusive use of employees, subcontractors, and mate-
rial suppliers of nonunion contractors including Sommerkal.
Respondent announced establishment of Gate 2 a short distance
from Gate 1 for the exclusive use of employees and materials
suppliers of its union contractor. At the time the letter was
faxed to the Union on June 29, picket captain Mike Johnson
was unable to locate a second gate. However, as he was leaving
for the day, he saw a gate company arrive and install a second
gate. The following morning, there were signs at each of the
two gates. Gate 1, the gate where the Union picketed on June
29, was designated for Sommerkal and other nonunion contrac-
tors. The new gate, designated Gate 2, was for use of the one
union contractor, who was not yet on the job.
From June 29 until July 18, the Union picketed without incident
at Gate 1
The Union’s practice was to arrive at the jobsite around 6
a.m. to 7 a.m. and remain in or around their cars. When Som-
merkal arrived at the jobsite, the Union began picketing at Gate
1. When trucks entered and exited the gate, the picketers stood
against the opened gates. The record reflects no impact on in-
gress or egress of vehicles. Although the picketers were techni-
cally inside the chain-link fence, they remained on the public
right-of-way portion of the jobsite while at Gate 1.
Prior to July 18, the Union picketed without incident in the
easement area
On two occasions prior to July 18, some of the picketers
went onto the easement area to follow Sommerkal work. For
instance, when a concrete pour occurred, some of the Sommer-
kal trucks entered the jobsite from Business Center Drive. On
another occasion, Sommerkal employees entered through an
alternate opening from Business Center Drive. The pickets
went to these locations and picketed while Sommerkal was
present. After use of these alternate openings in the chain-link
fence, Respondent sent follow-up letters re-establishing the
“dual gate” system as set forth in the original June 29 letter.
On July 18, the picketers engaged in area standards picketing
in the easement area
On July 18, around 10 a.m., the picketers saw a lumber de-
livery truck arrive in the easement area south of the jobsite. An
opening in the chain-link fence between the jobsite and the
easement area had been created in this area for a Sommerkal
employee to unload the lumber with a fork lift. Trent Schager
and another picketer went to this area and picketed for about 1
hour while the lumber was unloaded.
Around 11 a.m., a White Cap construction supply truck ar-
rived in the easement area at another opening in the chain-link
fence, this one near the jobsite construction trailer. The same
Sommerkal employee reported to the White Cap truck with a
forklift and began unloading the supplies. The pickets at the
lumber delivery easement area moved to the White Cap supply
truck position in the easement area. About 1 hour later, the
easement area picketers returned to Gate 1. At both of these
locations in the easement area, the picketers were on private
property.
On July 18, the City of Fairfield Police Department was sum-
moned to the jobsite
Upon arriving at the jobsite on July 18, project manager
James Clarke observed union picketers at Gate 1 as well as two
picketers in the easement area where Sommerkal was unloading
materials. Clarke was at the site to hold a weekly progress
meeting at the construction trailer. As he began the progress
meeting, the picketers in the easement area moved near the
construction trailer.
Also attending the progress meeting was Ted Maestes, the
designated project representative of NexCore Management,
Inc., general partner of NorthBay Headquarters, LP. At the
request of Maestes, Clarke asked the picketers in the easement
area to return to Gate 1. When these picketers refused to leave
the easement area, Clarke asked Johnson to have the picketers
in the easement area return to Gate 1. Johnson declined, aver-
ring that the Union could picket wherever Sommerkal was pre-
sent. At this point, Maestes contacted the City of Fairfield Po-
lice Department.
When the police arrived, they asked Johnson to remove the
pickets from all locations except Gate 1. Johnson refused
claiming a right to picket wherever Sommerkal was present.
However, after Johnson spoke with the police, all picketers
returned to Gate 1. At this point, Maestes and Clarke left Gate 1
and joined construction workers and others who were gathered
for a barbecue to mark a construction milestone.
Although the police initially told the picketers to remain at
Gate 1, eventually the police attempted, under threat of arrest,
to relocate the picketers to a sidewalk at the intersection of
Mangels Boulevard and Business Center Drive.
After Clarke and Maestes left Gate 1, the police requested
that, for their own safety, the picketers relocate from Gate 1 to
a sidewalk area at the intersection of Mangels Boulevard and
Business Center Drive. The picketers continued to claim a
right to picket at Gate 1, the designated Sommerkal gate. Fi-
nally, a police officer told picketing captain Johnson that if the
picketers did not leave Gate 1, they would be arrested. At this
point, Johnson directed all picketers to leave Gate 1. Johnson
remained, however, with fellow picketer Trent Schager.
After Clarke agreed to sign a citizen’s arrest form, the picketers
were arrested at Gate 1 while on the public right-of-way
At the request of the police, Clarke agreed to sign a citizen’s
arrest form. Thereafter, Johnson and Schager, the two remain-
ing picketers, were arrested at Gate 1 while on the public right-
of-way. The picketers were taken to the police department,
cited and released.
Johnson’s citation indicates that he was arrested for violation
of California Penal Code 602.1, refusal to leave private prop-
erty, and for violation of a City ordinance which requires a
permit for use of a bullhorn. Schager was arrested for violation
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
of California Penal Code 602.1, refusal to leave private prop-
erty.
California Penal Code 602.1 provides in relevant part,
(a) Any person who intentionally interferes with any lawful
business or occupation carried on by the owner or agent of a
business establishment open to the public, by obstructing or
intimidating those attempting to carry on business, or their
customers, and who refuses to leave the premises of the busi-
ness establishment after being requested to leave by the owner
or the owner’s agent, or by a peace officer acting at the re-
quest of the owner or owner’s agent, is guilty of a misde-
meanor, punishable by imprisonment in a county jail for up to
90 days, or by a fine of up to four hundred dollars ($400), or
by both that imprisonment and fine.
An exception to code 602.1 states as follows:
(c) This section shall not apply to any of the following per-
sons:
1. Any person engaged in lawful labor union activities that
are permitted to be carried out on the property by state or fed-
eral law.
At the time of the arrests, Respondent’s encroachment permit
was technically expired. The permit was extended at a
later date
Respondent’s original encroachment permit expired on June
15. There is no dispute that Respondent’s encroachment permit
had not been renewed as of July 18. At a later date, Respondent
produced the appropriate proof of insurance renewal and the
permit was extended to June 15, 2008.
The Solano County District Attorney did not prosecute Johnson
On August 16, Johnson appeared in court and was told that
all charges against him had been dropped. He received a “No-
tice of Intent not to Prosecute” stating that no formal charges
would be brought against him for the charge relating to viola-
tion of Section 602.1 of the Penal Code. The reason given on
the notice was “Civil remedies should be sought.” There is no
evidence whether Schager was prosecuted or not. At the time of
the hearing, Johnson did not know Schager’s whereabouts.
CONCLUSIONS OF LAW
Johnson and Schager were arrested on public property at
Gate 1
At the time of their arrest, Johnson and Schager were stand-
ing on the public right-of-way within Gate 1. They were there-
fore on public property at the time of their arrest. Although
Schager was in the easement area earlier when the police were
initially contacted, he left the easement area and returned to
Gate 1 about one hour prior to being arrested.
Johnson and Schager were engaged in lawful Section 7 activity
at the time of the arrest
At the time of their arrest, Johnson and Schager were en-
gaged in lawful area standards picketing. Thus, the Union in-
vestigated wages and benefits paid by Sommerkal, determined
that these wages and benefits did not meet the area standards
paid to union-represented employees, asked Sommerkal to
refute this assertion if it was in error and, receiving no re-
sponse, picketed with signs stating that Sommerkal did not pay
area standards. Picketing for protection of area standards is
clearly lawful Section 7 activity. See, e.g., Corporate Interiors,
340 NLRB 732, 745–747 (2003), citing Bristol Farms, 311
NLRB 437 (1993).
Respondent violated Section 8(a)(1) by causing the arrest of
union representatives who were engaged in lawful Section 7
activity on public property.
Where public property is concerned, “[I]t is beyond question
that an employer’s exclusion of union representatives . . . vio-
lates Section 8(a)(1), so long as the union representatives are
engaged in activity protected by Section 7 . . . .”
Roger D. Hughes Drywall, 344 NLRB 413, 414–415 (2005),
citing Bristol Farms, 311 NLRB 437 (1993); see also, Gaines-
ville Mfg. Co., 271 NLRB 1186 (1984). Based upon this author-
ity, I find that Respondent violated Section 8(a)(1) in causing
the arrest of lawful area standards picketers Johnson and
Schager. Although the complaint also alleges a threat of arrest,
the only evidence of such a threat was a statement made by the
police. There is no evidence that a representative of Respondent
made such a threat. The allegation regarding a threat of arrest is
dismissed.
Assuming, arguendo, that Schager was arrested for trespass on
private property, Respondent has failed to demonstrate a suffi-
cient property interest to foreclose violation of the Act
Counsel for Respondent argues that the picketers were ar-
rested for trespass on private property. Of course, this argument
could only apply to Schager. There is no dispute that Johnson
remained on public property at all times. In any event, Respon-
dent asserts that the appropriate analysis is set forth in Lech-
mere, Inc. v. NLRB, 502 U.S. 527 (1992). Lechmere provides
that if there are reasonable alternative means of communication
between a union and its audience, exclusion of a nonemployee
union organizer from private property does not violate Section
8(a)(1) of Act if the respondent had a right under applicable
state law to prevent trespass.
Citing Sears, Roebuck & Co. v. San Diego District Council
of Carpenters, 25 Cal.3d. 317, 158 Ca. Rptr. 370 (1979) and
Fashion Valley Mall, LLC v. NLRB, 42 Ca. 4th 840, 69 Cal.
Rptr. 3d 288 (2007), Respondent acknowledges that the Cali-
fornia Penal Code exempts certain lawful union activity from
prosecution for trespass. Respondent argues nevertheless that
these cases are distinguishable because Respondent’s jobsite,
unlike a shopping center, was not open to the public. Respon-
dent notes that no commercial, retail or public forum activities
occurred on the jobsite. Thus, Respondent argues that the Un-
ion could effectively communicate its message without tres-
passing.
Finally, Respondent distinguishes In re Catalano, 29 Cal.3d
1, 171 Cal. Rptr. 667 (1981). In that case, the Supreme Court of
California held that union representatives who entered a jobsite
to conduct a safety inspection and prepare a steward’s report
were engaged in lawful union activity which did not warrant
prosecution for trespass. Respondent notes that the Union
herein was not on the jobsite for either a safety inspection or
HEARN CONSTRUCTION 5
preparation of a steward’s report.
I reject Respondent’s arguments. First, as I have found
above, Johnson and Schager were arrested while on the public
right-of-way. There is absolutely no evidence that Johnson
entered upon the adjacent private property. Rather, Johnson
was always present at the assigned picketing position, Gate 1,
well within the public right-of-way. Assuming, however, for
the sake of argument, that Schager was arrested for his presence
on private property, I nevertheless conclude that his arrest
would violate Section 8(a)(1).
Lechmere9 holds that nonemployee union organizers may not
trespass on private property in order to organize employees
unless there are no reasonable alternative means of communi-
cating with the employees. Lechmere applies in the context of
area standards picketing. Leslie Homes, Inc., 316 NLRB 123,
127–129 (1995). Given my finding that the Union was engaged
in lawful area standards picketing, pursuant to Lechmere, Re-
spondent must demonstrate a private property interest pursuant
to state law sufficient to warrant arrest for trespass. See Bristol
Farms, 311 NLRB 437, 438 fn. 6 (1993); Indio Grocery Outlet,
323 NLRB 1138, 1142 (1997), enfd. sub nom. NLRB v. Cal-
kins, 187 F.3d 1080 (9th Cir. 1999).
Johnson and Schager were cited with violation of California
Penal Code 602.1 with the notation, “Refused to leave private
property.” However, this section of the penal code specifically
exempts persons engaged in labor union activities which are
permitted by the National Labor Relations Act. Because John-
son and Schager’s actions fall within that exemption, Respon-
dent has failed to demonstrate a property interest sufficient to
warrant arrest for trespass on private property.
Further, I note that Respondent did not attempt to exert any
public safety concerns by instituting designated area or peak
traffic restrictions in order to avoid disruption of normal busi-
ness operations. See, e.g., Needletrades Employees (UNITE) v.
Superior Court of Los Angeles County, 65 Cal. Rptr. 2d 838
(Ca. Ct. App. 1997), cited with approval in Glendale Associ-
ates, Ltd., 335 NLRB 27, 28 (2001), enfd. 347 F.3d 1145 (9th
Cir. 2003).
Additionally, I reject Respondent’s argument that Sears and
Fashion Valley are distinguishable. Although Respondent is
correct that both Sears and Fashion Valley arise in public shop-
ping areas, the penal code exemption from prosecution for law-
ful union activity pertains to all trespass, not just trespass in
public shopping areas. See, e.g., In re Zerbe, 388 P.2d 182 (S.
Ct. Cal 1964) (union official who picketed on right-of-way of
railroad serving employer’s plant was engaged in lawful labor
activities and not subject to conviction for willful trespass un-
der California Penal Code).
Finally, I reject as misplaced Respondent’s argument that
because its jobsite was not open to the public there were rea-
sonable alternative means for communicating outside the fence.
The penal code exemption controls whether Respondent may
demonstrate a sufficient property interest to warrant arrest for
trespass. Respondent’s argument—that the Union could effec-
tively communicate its message without coming inside the
fenced jobsite—presumes demonstration of a sufficient prop-

9 Lechmere, Inc. v. NLRB, supra, 502 U.S. at 535.
erty interest to warrant application of Lechmere. The penal
code exemption precludes such a showing. Therefore, Lech-
mere’s reasonable alternative means analysis is not reached.
Although it may be possible to analyze this case pursuant to the
right to seek redress of grievances, I decline General Counsel’s
invitation to do so.
General Counsel asserts that BE&K Construction Co. v.
NLRB, 536 U.S. 516 (2002), reaffirming the holding in Bill
Johnson’s Restaurant v. NLRB, 461 U.S. 731 (1983), provides
the framework for analysis. Thus, counsel asserts that the arrest
violated Section 8(a)(1) of the Act because it was objectively
baseless (because the district attorney did not prosecute) as well
as retaliatory. Counsel notes that retaliation is evidenced by
Clarke’s admission that the Union had a right to picket at Gate
1, Clarke’s testimony that the only reason he signed the citi-
zen’s arrest form was because the pickets showed disrespect for
the police by refusing to move to safer locations at the request
of the police, and Clarke’s admission that, to be quite honest,
he would rather not have any picketers at all. Counsel for
Charging Party agrees with this rationale.
Because I have found that Johnson and Schager were ar-
rested on public property while engaged in lawful area stan-
dards picketing, it is not necessary to address these issues.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Consistent with Board authority, I
recommend that Respondent be ordered to make the Union
whole with respect to the litigation costs arising from Johnson
and Schager’s arrest and that Respondent be ordered to notify
the appropriate law enforcement and court authorities of the
illegality of the arrest and to seek the expungement of associ-
ated records. Roger D. Hughes Drywall, 344 NLRB 413 (2005)
and cases cited therein as follows: Schear’s Food Center, 318
NLRB 261, 267 (1995); K Mart Corp., 313 NLRB 50, 58
(1993); Baptist Memorial Hospital, 229 NLRB 45, 46 (1977),
aff’d. 568 F.2d 1 (6th Cir. 1977). See also Petrochem Insula-
tion, Inc., 240 F.3d 26, 35 (D.C. Cir. 2001).
ORDER
Respondent Hearn Construction, Vacaville, California, its of-
ficers, agents, successors, and assigns, shall cease and desist
from interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed by Section 7 of the Act by
causing the arrest of picketers lawfully engaged in area stan-
dards picketing as employees or representatives of Carpenters’
Union Local 180, United Brotherhood of Carpenters and Join-
ers of America or in any like or related manner interfering with,
restraining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
Respondent shall take the following affirmative action nec-
essary to effectuate the policies of the Act:
(a) Notify the Solano County District Attorney’s Office and
appropriate court authorities in writing, with a copy to the Un-
ion, that the Board has determined that Johnson and Schager’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
arrest on July 18, 2007, violated the Act; request in writing,
with a copy to the Union, that the District Attorney’s Office
and the court remove any and all records of that unlawful ar-
rest; and make Carpenters’ Union Local 180, United Brother-
hood of Carpenters and Joiners of America whole, with interest,
for all reasonable legal fees and expenses incurred as a result of
the arrest.
(b) Within 14 days after service by the Region, post at its
Vacaville, California, office, copies of the attached notice
marked “Appendix.”10 Copies of the notice, on forms provided
by the Regional Director for Region 20, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted.
(c) Reasonable steps shall be taken by the Respondent to en-
sure that the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed
the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since July 18, 2007.
(d) Sign and return to the Regional Director sufficient copies
of the notice for posting by the Union, if it so chooses, at all
places where it customarily posts notices to its members and
employees.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. March 10, 2009

10 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed by Section 7 of the Act by
causing the arrest of picketers lawfully engaged in area stan-
dards picketing as employees or representatives of Carpenters’
Union Local 180, United Brotherhood of Carpenters and Join-
ers of America.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL notify the Solano County District Attorney’s Office
and appropriate court authorities in writing, with a copy to the
Union, that the Board has determined that Johnson’s and
Schager’s arrests on July 18, 2007, violated the Act.
WE WILL request in writing, with a copy to the Union, that
the Solano County District Attorney’s Office and the court
remove any and all records of that unlawful arrest.
WE WILL make Carpenters’ Union Local 180, United Broth-
erhood of Carpenters and Joiners of America whole, with inter-
est, for all reasonable legal fees and expenses incurred as a
result of the arrests.
HEARN CONSTRUCTION