For signatory contractors, visits from union business representatives are a normal part of operating under a collective bargaining agreement. But questions can arise over when a union representative has the right to enter a job site and what the representative may do once there.
Start With Your CBA
There is no single rule that gives every union representative unlimited access to every construction job site.
Many union agreements contain specific language addressing union representatives’ access to jobsites. The language varies considerably. Some agreements provide broad access, while others require notice, limit the purpose of the visit, require compliance with site rules, or specifically prohibit interference with the work.
Before a problem occurs, contractors should know exactly what their agreement says about union access.
Access Does Not Mean Unrestricted Access
Where a CBA gives a union representative the right to visit a job site, the contractor generally must honor that contractual right.
However, an access provision does not necessarily give the representative the right to:
• Disrupt or unnecessarily delay employees performing their work;
• Direct the contractor’s workforce or assume the contractor’s supervisory role;
• Ignore established safety, security or site-access requirements;
• Enter restricted areas without authorization where legitimate restrictions apply;
• Use a representational visit for purposes outside the scope of the applicable access right;
• Stop or interfere with work unless the CBA, law or circumstances provide authority for doing so.
The specific language of the CBA matters. Contractors should not assume that a union representative either has unlimited access or has no right of access.
The NLRB Has Addressed Construction Jobsites
A significant construction-industry case is Wolgast Corp. v. NLRB, involving a union subcontractor whose Carpenters’ agreement gave union representatives the right to visit the job during working hours while providing that the representative “shall not hinder the progress of the work.”
The Sixth Circuit upheld the NLRB’s determination that the general contractor could not categorically prevent the union representative from accessing the common construction site to perform legitimate representational duties under the subcontractor’s CBA.
At the same time, the NLRB’s order expressly allowed the contractor to apply reasonable and nondiscriminatory rules concerning nonemployee access.
This distinction is important:
The right to represent employees does not eliminate the contractor’s right to reasonably manage the jobsite.
What if the Owner or General Contractor Controls Access?
A subcontractor’s CBA does not necessarily give the union unrestricted access to property controlled by an owner or general contractor. However, an owner or GC may not always be free to prohibit access simply because it is not a party to the CBA. Courts and the NLRB have recognized circumstances where a union representative must be permitted access to a common construction site to perform legitimate representational duties for a subcontractor’s represented employees. Owners and GCs may still maintain reasonable, nondiscriminatory safety, security and access requirements. Contractors should review the CBA and the circumstances before representing that access can, or cannot, be provided.
Why Is the Representative There? The purpose of the visit matters.
A business representative visiting represented employees to administer or enforce an existing CBA is different from a nonemployee union organizer seeking access to private property for organizing activities.
The U.S. Supreme Court’s decision in Lechmere, Inc. v. NLRB generally protects an employer’s private property from access by nonemployee union organizers, subject to limited exceptions.
By comparison, the NLRB and courts have recognized stronger access rights where a union already represents employees, and the applicable CBA grants the union jobsite access to perform representational responsibilities.
When a representative arrives, it is therefore reasonable for the contractor to determine:
Who are you representing? Why are you here? What provision of the CBA applies to the visit?
Reasonable Jobsite Rules Still Matter
Depending upon the CBA and circumstances, contractors may generally be able to maintain reasonable, nondiscriminatory requirements such as:
Check-In Procedures. Requiring representatives to notify the superintendent or designated company representative when arriving.
Safety Requirements. Requiring appropriate PPE and compliance with established jobsite safety rules.
Security and Owner/GC Requirements. Following legitimate security, badging, escort and restricted-area requirements imposed on visitors to the project.
Identification of the Visit’s Purpose. Determining whether the representative is visiting represented employees, investigating a grievance or contract issue, addressing safety concerns, or conducting some other activity.
Protection of Workflow. Where supported by the CBA and applicable law, maintaining reasonable rules intended to prevent unnecessary disruption of employees and production. Rules should be applied consistently and not be created or selectively enforced simply to prevent legitimate union representation.
Can the Representative Talk to Employees During Working Time? Check the CBA.
Some agreements specifically permit representatives to interview employees during working hours. Others allow access as long as the visit does not disrupt employees or the progress of the work.
This is an area where contractors should avoid making assumptions. If the agreement permits access but also says the representative cannot “hinder,” “interfere with,” or “disrupt” the work, both provisions need to be respected.
A disagreement over whether a visit is disrupting work should be handled professionally and documented rather than escalating unnecessarily on the jobsite.
What About Employee Investigations?
A different set of rules applies when management is conducting an investigatory interview that an employee reasonably believes could result in discipline.
Under Weingarten rights, a union-represented employee may request union representation during such an interview.
According to the NLRB, the representative is not required to remain silent. The representative may advise the employee, seek clarification of questions and provide additional information.
However, the NLRB also recognizes limits. The representative may not interfere with the employer’s legitimate investigation and may be removed for disruptive or hostile behavior.
What About an OSHA Inspection? OSHA inspections are another separate situation.
Under OSHA’s Worker Walkaround Representative rule, employees may designate a third party, potentially including a union representative, to accompany an OSHA compliance officer when OSHA determines the third party is reasonably necessary to aid an effective and thorough inspection.
That does not provide unrestricted jobsite access.
OSHA states that the representative’s role is to aid the inspection. The representative accompanies the OSHA compliance officer and may not independently search the workplace. OSHA can also prevent a representative from participating if the person’s conduct interferes with a fair and orderly inspection.
When a Union Representative Arrives
Contractors should have a consistent procedure rather than making access decisions in the field without knowing the applicable agreement.
1. Identify the representative and the union.
2. Ask the purpose of the visit.
3. Notify the superintendent or designated management representative.
4. Check the applicable CBA’s access language.
5. Follow established owner, GC, safety and security procedures.
6. Allow legitimate representational activity required by the CBA and applicable law.
7. Address workflow concerns professionally and consistently.
8. Document significant incidents or interference.
9. Contact management, your association or labor counsel before denying access when the representative claims a contractual right to enter.
The Bottom Line. Union access and union authority are not the same thing.
A CBA may give a union representative the right to enter a job site and perform legitimate representational duties. That does not automatically give the representative unrestricted authority to disrupt production, disregard safety and security requirements, direct the contractor’s workforce, or otherwise take control of the job.
At the same time, contractors should be cautious about simply refusing access when a CBA provides a legitimate right of entry.
Know your agreement. Know the purpose of the visit. Apply reasonable job site rules consistently. And address disputes through the appropriate labor-relations process rather than allowing them to become jobsite confrontations.