Peck/Jones Construction Corp.

National Labor Relations Board - Board Decisions

Sep 20, 2002

338 N.L.R.B. 16 (N.L.R.B. 2002)

PECK/JONES CONSTRUCTION CORP. 1
Peck/Jones Construction Corp. and Iron Workers
Union Local No. 433. Case 31–CA–24883
DECISION AND ORDER
September 20, 2002
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On October 9, 2001, Administrative Law Judge James
L. Rose issued the attached decision.1 The General
Counsel and Charging Party filed exceptions and sup-
porting briefs, and the Respondent filed an answering
brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order.
The General Counsel alleged that the Respondent vio-
lated Section 8(a)(1) of the Act when it denied two union
business agents access to its construction site at the Los
Angeles International Airport (LAX) on October 26,
2000. The judge dismissed the complaint on the grounds
that the business agents improperly entered the secured
area of the jobsite by failing to sign in at the Respon-
dent’s trailer and by failing to have an escort with them
on the jobsite, as required by the Respondent’s security
rules. The General Counsel excepts to these findings.
As discussed below, we agree with the judge that the
business agents failed to follow the Respondent’s rea-
sonable and nondiscriminatory sign-in rule. Therefore,

1 The judge inadvertently failed to note the appearance of David A.
Rosenfeld, Esq. on behalf of the Charging Party.
2 The General Counsel and Charging Party have excepted to some of
the judge’s credibility findings. 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.
During the hearing, the General Counsel offered into evidence the
position statement that the Respondent submitted during the Region’s
investigation of the unfair labor practice charge. The judge rejected the
offer on the grounds that the position statement was a privileged set-
tlement document and was not relevant. The General Counsel has
excepted to the judge’s refusal to accept the position statement into
evidence.
We will reverse a judge’s ruling only when the party urging such
measure demonstrates that the judge’s ruling was not only erroneous,
but also prejudicial to its substantive rights. Monroe Mfg., 323 NLRB
24, 25 (1997). Assuming arguendo that the judge’s evidentiary ruling
was erroneous, the General Counsel has not shown that he was preju-
diced by the exclusion of the proffered evidence. The General Counsel
did not specifically allege how the asserted discrepancies between the
assertions made in the position statement and the testimony of the Re-
spondent’s general manager, William Hanson, would warrant a reversal
of the judge’s crediting of Hanson. Accordingly, we find no merit in
the General Counsel’s exception.
the union agents are not entitled to enforce their contrac-
tual right to access that might otherwise provide a basis
for their claim.
The Respondent, a general contractor, has subcon-
tracted the structural steel portion of the LAX project to
Washington Ironworks. Washington Ironworks has a
collective-bargaining agreement with the Charging Party,
Iron Workers Union Local No. 433, which represents the
subcontractor’s employees on the LAX job. Washington
Ironworks and the Union have agreed to the following
access provision: “The Business Agent of the Union
shall be permitted on all jobs but will in no way interfere
with the men during working hours unless permission is
granted by the individual employer.”3
The Union’s contractual right of access, however, is
not without limitation. The Board has recognized a gen-
eral contractor’s right to enforce reasonable and nondis-
criminatory security rules with regard to nonemployee
union business agents who represent its subcontractor’s
employees. Wolgast Corp., 334 NLRB 203, 204, 213
(2001).
Here, the judge found, and we agree, that the Respon-
dent’s security rule requiring visitors to sign in was rea-
sonable and was enforced against the union agents in a
nondiscriminatory manner. The record shows that, at all
relevant times, the Respondent posted a sign at the entry
gate advising visitors that they must sign in at the Re-
spondent’s office. Once the visitors have signed in, the
Respondent designates an authorized individual to escort
them into the secured work area.4
Unlike the cases cited by the General Counsel,5 the
Respondent’s sign-in rule was not inconsistent with the
access provision of the Union’s collective-bargaining
agreement with Washington Ironworks. As noted above,
the access provision in the collective-bargaining agree-
ment grants the union agents access to the jobsite as long
as the union agents do not interfere with employees dur-
3 The judge did not address whether the Union’s representatives
were operating in accord with the access provision in the Washington
Ironworks contract on the date in question. For purposes of this deci-
sion, we assume, arguendo, that they were. Thus, we do not pass on
whether the Union’s representatives interfered with employees during
working hours without permission.
4 In adopting the judge’s dismissal of the complaint, we rely only on
the union agents’ failure to sign in at the Respondent’s trailer before
entering the secured area. We find it unnecessary to pass on whether
the Respondent’s requirement that the union agents be escorted onto the
jobsite is a reasonable access rule.
5 These cases include: Villa Avila, 253 NLRB 76 (1980), enfd. 673
F.2d 281 (9th Cir. 1982); C.E. Wylie Construction Co., 295 NLRB
1050 (1989), enfd. as modified 934 F.2d 234 (9th Cir. 1991); and CDK
Contracting Co., 308 NLRB 1117 (1992). The cited cases addressed
the legality of a general contractor’s rules that were inconsistent with
the access provisions of the contract between the subcontractor and the
union. We do not address that issue or related precedent in this case.
338 NLRB No. 4
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
ing working hours. There is nothing in this provision
that would excuse the union agents’ failure to follow a
reasonable security rule required of all nonemployee
visitors to the secured areas of the jobsite. Because the
union agents did not sign in before entering the jobsite,
they were improperly on the jobsite and cannot now
claim that their ejection from the secured area violated
their contractual right of access.
Accordingly, we adopt the judge’s dismissal of the
General Counsel’s complaint.
ORDER
The recommended Order of the administrative law
judge is adopted, and the complaint is dismissed.

MEMBER COWEN, concurring.
I agree with my colleagues that the Respondent did not
violate Section 8(a)(1) by requiring the union agents to
leave the jobsite. As my colleagues have found, it is
undisputed that the union agents failed to sign in, as the
Respondent required, and thus their presence in the se-
cured area of the jobsite violated the Respondent’s rea-
sonable, nondiscriminatory security rule.
Moreover, I find that the union agents’ conduct is not
covered by the access provision of the Union’s agree-
ment with the subcontractor, Washington Ironworks. As
noted above, the agreement provided that “[t]he Business
Agent of the Union shall be permitted on all jobs but will
in no way interfere with the men during working hours.”
When the union agents sought admission to the site by
calling to employees who were working and then talked
to employees while they were working, they clearly in-
terfered with the men during working hours. As a result,
they were required under the contract to obtain the “per-
mission of the individual employer.” As that permission
had not been given, the union agents failed to satisfy the
contract’s requirements, and therefore cannot assert a
contractual claim to access. Thus, for both these reasons,
I find that the union agents were improperly on the prem-
ises.
I disagree, however, with any implication that a gen-
eral contractor’s maintenance and/or enforcement of any
rule that is inconsistent with the access provisions of a
subcontractor’s union contract is unlawful. I also dis-
agree with prior cases to the extent that they can be read
as supporting such a broad proposition. In any event, it
is not necessary to pass on such issues to decide this
case. As my colleagues note, this case does not raise the
issue of the lawfulness of a rule that conflicts with a col-
lective-bargaining agreement.
As a final matter, it should be noted that this case—
which involves unauthorized access to secure areas of the
Los Angles International Airport—arose prior to the
events of September 11, 2001. Thus, nothing in this de-
cision should be read as expressing any view on how the
Board will evaluate union access questions arising under
the Federally mandated heightened security restrictions
now in place at airports throughout the nation.

Nikki Cheaney, Esq., for the General Counsel.
James A. Bowles, Esq., of Los Angeles, California, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was
tried before me at Los Angeles, California, on August 6 and 7,
2001, upon the General Counsel’s complaint alleging that the
Respondent violated Section 8(a)(1) of the National Labor Re-
lations Act by denying a business agent1 of the Charging Party
access to its construction site at the Los Angeles International
Airport (LAX) on October 26, 2000.2
The Respondent generally denied that it committed any vio-
lations of the Act and affirmatively contends that the business
agent was improperly in a restricted area, having neither an
appropriate security badge nor being escorted by someone with
the authority to do so.
Upon the record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel, I make the follow-
ing findings of fact, conclusions of law, and recommended
Order.
I. JURISDICTION
The Respondent is a corporation engaged in the construction
industry at various locations including terminal 4 of LAX. In
the course and conduct of its business, the Respondent annually
purchases and receives from points outside the State of Califor-
nia goods, products, and materials valued in excess of $50,000.
The Respondent admits, and I conclude, that it is an employer
engaged in interstate commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Iron Workers Union Local No. 433 (the Union) is admitted
to be, and I conclude is, a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Respondent is the general contractor for certain con-
struction at the LAX American Airlines Terminal 4. Most of
the project is not in the secured area as defined by LAX and the
Federal Aviation Administration, but about one third of it is.

1 Counsel for the General Counsel argues that in March 2001 the
Union’s business agent was also denied access to the LAX jobsite.
This was not alleged in the complaint as a violation of the Act. Though
there was some testimony concerning a subsequent event, this assertion
was not fully litigated. Therefore no findings will be made concerning
it.
2 All dates hereafter are in 2000, unless otherwise indicated.

PECK/JONES CONSTRUCTION CORP. 3
LAX has security policies in effect which define who may have
access to restricted areas and how such access is obtained. So
far as material here, each employee who receives a security
clearance is given a badge, and only those with badges may be
in restricted areas. However, visitors may come into restricted
areas on an ad hoc basis if escorted by one with the authority to
do so—such authority being designated by a blue badge.
A visitor is defined in the LAX access procedures as “A per-
son needing temporary or onetime access who will be in the
constant and immediate presence of an authorized person while
in the tenant’s exclusive leasehold area.” The Respondent fur-
ther requires all visitors to sign in and be assigned an escort.
Jorge Montenegro is an LAX police officer currently with
the airport security coordination unit. He testified to the proce-
dure for allowing a visitor who does not have a security badge
access to a secured area:

First of all, the Company in charge of the site will have to be
notified and then an authorized escort will be provided. Au-
thorized escort meaning an individual who is aware of all the
current information as to proper escorts and then he would be
with this individual throughout the entire time he is entering
the restricted area. At no time will the person be out of his
sight.

The Respondent subcontracts the structural steel portion of
the LAX project to Washington Ironworks, whose employees
are represented by the Union. On October 25, the Union’s job
steward, Mitchell Ponce, called Business Agent Thomas Mox-
ley, stating that nonunion members were doing work within the
Union’s craft jurisdiction.
Thus on October 26, Moxley, along with Bruce Gerometta, a
business agent for a sister local, went to the jobsite. Rather
than go to the Respondent’s offsite office in order to gain ac-
cess to the work area (sign in and be assigned an escort), as the
Respondent’s rules require, Moxley and Gerometta went to a
padlocked gate at the work area, apparently used for construc-
tion access. Moxley got Ponce’s attention, and Ponce in turn
yelled to someone to let them in, the gate being locked from the
inside. Ponce was unavailable since he was working 40 to 45
feet above the ground. According to Moxley, using this gate
“saved us steps.”
No one testifying knows who the employee was who let
Moxley and Gerometta onto the jobsite; but it was probably an
employee (perhaps a supervisor) of the Respondent, since only
the Respondent has keys to the lock. Ponce and Moxley testi-
fied that when the two business agents arrived on the jobsite
Gene Perry, a foreman for Washington Ironworks, escorted
them onto the job. Then James Wray, the Washington Iron-
works general foreman, approached them and talked a bit and
Perry left. Moxley testified that at all times either Perry or
Wray was within a few feet. However, I reject this testimony.
Wray, a witness for the General Counsel and a union member,
testified that when he was talking to Moxley no one else was
nearby. He also testified that he was not Moxley’s escort
(though he did have that authority) and that after talking to
them he left the immediate area and was 50 to 100 feet away
when they were told to leave the site.
William Hanson, the Respondent’s general foreman, ob-
served Moxley and Gerometta standing alone and told his car-
penter foreman, Guillermo Vidrio, to find out if they had
badges or an escort. Vidrio called back that they had neither.
Then Hanson approached and asked Moxley who their escort
was. According to Hanson, Moxley replied that Ponce was.
Moxley admitted that he “may” have said Ponce was their es-
cort. However, Ponce was 40 to 45 feet in the air and scarcely
in a position to exert any control over Moxley and Gerometta.
Hanson told them they had to leave and they did so, through the
gate they had entered.
B. Analysis and Conclusions
Citing cases not involving airport security or access to re-
stricted areas, the General Counsel argues that by telling Mox-
ley and Gerometta they had to leave the jobsite, the Respondent
violated Section 8(a)(1)—that agents of a union representing
employees are entitled to access to the jobsite. C.E. Wylie Con-
struction Co., 295 NLRB 1050 (1989), enfd. as modified 934
F.2d 234 (9th Cir. 1991). And a general contractor violates the
Act by denying a business agent for subcontractor employees
access to a jobsite. Wolgast Corp., 334 NLRB 203 (2001). The
principal issue in these cases is whether there were imposed
“unreasonable and discriminatory rules relating to access.”
CDK Contracting Co., 308 NLRB 1117 fn. 1 (1992).
The General Counsel appears to take the position that literal
enforcement by the Respondent of the LAX security rules is not
warranted—that Moxley and Gerometta were always somewhat
near a badged employee and were some 300 feet from the near-
est airplane. And, implicitly, the General Counsel seems to
argue that Moxley and Gerometta were not a security threat.
On brief, the General Counsel states: “An escort is a reasonable
precaution for the casual visitor, but it cannot be a requirement
of a union representative engaged in a lawful visit to employees
on a worksite, as in this case.” (Citation omitted.) Even before
September 11, 2001, I would have rejected this argument.
The General Counsel also argues that “Tom Moxley and
Bruce Gerometta complied with airport security requirement
that they remain in the constant and immediate presence of an
authorized individual while in the restricted area.” I find this
not to have been the case, even assuming that such would have
satisfied the security rules. While Perry may have escorted
them onto the job, he left when Wray approached, and then
Wray, by his testimony, left and when the business agents were
confronted by Hanson, they were alone.
Beyond that, from the testimony of Montenegro, whom I
credit, an escort is a specifically designated individual. The
LAX security procedures do not provide for shifting escorts.
The General Counsel further contends that Hanson did not
follow the security rules because he did not detain Moxley and
Gerometta as is required by the security procedures. Nor did he
report the security violation for 2 days. No doubt Hanson him-
self was remiss. And it is doubtful that Moxley and Gerometta
should have been allowed through the padlocked gate. How-
ever, the apparent violations of access procedures are not mate-
rial. Nor is it material that Moxley may have been on the job
earlier in violation of the access rules. The issue here is
whether the security rules were reasonable and whether Moxley

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

4

and Gerometta were in a secured area in breach of these rules.
I conclude they were.
This case is not about denying business agents access to a
jobsite. The narrow issue here is whether the business agents
came on the job in violation of reasonable rules. They did not
sign in. They probably were allowed through a gate not author-
ized for visitors. They did not have badges and they did not
have an escort who stayed with them at all times. Perry
brought them on the job, but he left to supervise other work.
Ponce was always 40 to 45 feet above the ground. I conclude
that Moxley and Gerometta did not have a designated escort
while they were on the job, nor did they follow the reasonable
rule that they sign in and be assigned an escort. Finally, that
some badged employees might have been in the area near Mox-
ley and Gerometta does not mean they complied with the secu-
rity rule of having a designated escort.
If one does not precisely abide by the rules regarding access
to restricted areas at an airport, one is not entitled to be in such
areas. In cases involving airport security, Section 7 rights must
yield to restrictions concerning access. Moxley will have to
take the few extra steps and go through the Respondent’s office
if he wants to visit the jobsite, and arrange for someone to es-
cort him. This, of course, may limit the spontaneity with which
business agents visit jobsites in airport-restricted areas; but
such does not seem to be an unreasonable burden when
weighed against the importance of airport security.
Moxley can come on the project when he follows the rules.
He did not do so on October 26. I simply do not believe that on
the facts of this case, the Respondent violated the Act, even
though agents of the Respondent may well have violated LAX
rules concerning access to secured areas. Accordingly, I shall
recommend the complaint be dismissed.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The complaint is dismissed in its entirely.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.