Inter-State Tile & Mantel Company, Inc.

National Labor Relations Board - Administrative Judge OpinionsMay 29, 2007

04-CA-034800 (N.L.R.B. May. 29, 2007)

JD–36–07 Harrisburg, PA UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES INTER-STATE TILE & MANTEL COMPANY, INC. and Case 4–CA–34800 JOE BATTAGLIA, DENNIS PAGLIOTTI, and FRED COSENZA, Individuals Margaret M. McGovern, Esq., for the General Counsel. David A. Gaudioso, Esq., of Philadelphia, PA, for the Charging Parties. Thomas R. Davies, Esq., of Lancaster, PA, for Respondent. DECISION Statement of the Case RICHARD A. SCULLY, Administrative Law Judge. Upon a charge and an amended charge filed by Joe Battaglia, Dennis Pagliotti, and Fred Cosenza on July 31 and September 27, 2006, respectively, the Regional Director for Region 4, National Labor Relations Board (the Board) issued a complaint on September 28, 2006, alleging that Inter-State Tile & Mantel Company, Inc. (Respondent), had committed certain violations of Section 8(a)(3) and (1) of the National Labor Relations Act (the Act). Respondent filed a timely answer denying that it had committed any violation of the Act. A hearing was held in Philadelphia, Pennsylvania, on February 27, 2007, at which all parties were given a full opportunity to examine and cross-examine witnesses and to present other evidence and argument. Briefs submitted on behalf of the parties have been given due consideration. Upon the entire record and from my observation of the demeanor of the witnesses, I make the following Findings of Fact I. Jurisdiction At all times material, Respondent has been a Pennsylvania corporation with a facility in Harrisburg, Pennsylvania, engaged in the manufacture and installation of tile. During the 12- month period preceding September 28, 2006, Respondent, in the conduct of its business operations, purchased and received at its Harrisburg facility goods valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that International Union of Bricklayers and Allied Craft Workers, Local Union No.1 (the Union) is a labor organization within the meaning of Section 2(5) of the Act. JD–36–07 5 10 15 20 25 30 35 40 45 50 2 II. Alleged Unfair Labor Practices Charging Party Joe Battaglia is employed by the Union as an organizer. He is an experienced tile setter and on May 29, 2006,1 he went to the Respondent’s office and applied for a job after seeing an ad in a local newspaper. He was interviewed by company superintendent Randy Stoneroad who asked him if he could start the next day because they were very busy and needed manpower. Battaglia agreed to start the following Monday and later got a phone message from Stoneroad asking if he could start sooner. On Friday, Battaglia was told to report to work on Monday, June 2, at a job at a private residence where he worked for 5 days under supervisor Randy Herb. The following Monday, he was sent to a job at a church in Lancaster, Pennsylvania. His next job was at a JC Penney store under construction in Harrisburg. Herb told Battaglia that it was a big job that was just getting started and that there was a lot of work to be done. Battaglia told Herb that he knew a helper and another tile setter who would be interested in work. Herb responded that the company was looking to hire and they should call. Battaglia relayed this information to Charging Parties Dennis Pagliotti, another organizer employed by the Union, and Fred Cosenza who was employed by the Philadelphia Building Trades Council as a business representative. Pagliotti and Cosenza each called the Respondent and were told by Stoneroad to report for work at the JC Penney site on July 5. On the morning of July 5, Battaglia, Pagliotti, and Cosenza arrived at the jobsite together approximately a half-hour before work was to start. As they approached their work area, they observed what they considered safety hazards, involving a 480-volt generator which provided electrical power to the work area that had a number of cords lying in puddles of rainwater and a ladder that was not properly secured. The three of them went to the office trailer of High Construction, the general contractor on the jobsite, and spoke with job superintendent Rick Neidlinger. Cosenza asked Neidlinger for the telephone number for the local office of OSHA. Neidlinger asked for whom they worked and suggested they go and perform their tile setting work. Cosenza responded that they were going to do that but they needed the number for OSHA to call and address their safety concerns during their break. Neidlinger gave them the number and all three went to their work area and started work at 7:00 a.m. After they left his trailer, Neidlinger called Inter-State and left a message because he had not seen the three men before, he wanted to confirm that they were employed by it, and he wanted to know why they wanted “to call OSHA right away as soon as they got here.” His call was returned and he was told that someone from Inter-State would be sent out to the job site. When Battaglia, Pagliotti, and Cosenza returned to their work area and began working, Cosenza had a conversation with an Inter-State employee named “Tim,” who was grinding a concrete floor and creating a lot of dust. Cosenza pointed out to Tim that the dust was creating a health hazard to himself and others working in the area but the employee got “confrontational” and told him to mind his own business. At that point Herb arrived and Cosenza and Pagliotti were introduced to him. Cosenza mentioned his encounter with Tim and Herb told him not to worry about it because he had problems with Tim the previous week and was going to remove him. Herb gave Cosenza and Pagliotti some employment-related paperwork to fill out and began reviewing the job blueprints with Battaglia. As they were doing so, Herb and got a call on his cell phone. When he finished, he said that the call was from John Hepschmidt, Jr., Inter- State’s chief executive officer, and he wanted whoever had gone to the general contractor’s trailer that morning to be fired. They told Herb that they had just pointed out a safety hazard. Herb said that the general contractor did not want them on the project. He suggested that they 1 Hereinafter, all dates are in 2006. JD–36–07 5 10 15 20 25 30 35 40 45 50 3 call and speak with Hepschmidt and gave them his number. Battaglia placed a call to Hepschmidt on his cell phone which was in the speaker mode and audible to all. He introduced himself to Hepschmidt and asked why they were being fired. Hepschmidt said that they had gone to the general contractor’s trailer and were “starting trouble.” Battaglia said that they were not causing trouble but had pointed out some issues involving the safety of themselves and other employees. After Cosenza said that they were there to work hard and did not want any trouble, Hepschmidt told them to return to work. Cosenza then told Hepschmidt that they were union organizers and would be attempting to organize Inter-State’s workers on the project on their own time. Hepschmidt responded that he did not want “any union business” on his job, that they were fired, and that they should get off the job site. At that point, Herb pulled the paperwork he had given Cosenza and Pagliotti out of their hands. When Battaglia indicated that he also was union, Herb said he was fired and should get off the job. The three men collected their tools and began to leave the job site. While doing so they took some photographs of the safety hazards they had observed with a cell phone camera. Neidlinger, who was in the area and had been told by Herb that they did not work for Inter-State, saw them do so and told them to leave the job site or he would call the police. When they continued to take pictures, he did call the police. The three men left the job site and waited outside until a police officer arrived because they were concerned that he might be told that they had done something wrong. The police officer went in to the job site, came back, and told them it was “okay.” At that point they left. The foregoing facts are found based on the credible, mutually corroborative, and uncontradicted testimony of Battaglia, Pagliotti, Cosenza, and Neidlinger. Counsel for the General Counsel contends that the Respondent violated Section 8(a)(1) of the Act by threatening to discharge employees who had raised safety concerns with the general contractor on the JC Penney project; by interrogating employees as to who had raised those concerns and about their union affiliation; and by discharging employees for raising those safety concerns. She also contends that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees because of their union affiliation and activity. The Respondent contends that the Charging Parties were not interested in working for it and/or attempting to organize other employees, nor were they really interested in safety concerns. They were not engaged in activity protected by the Act but merely wished to provoke a confrontation at the job site and punish a non-union employer. Analysis and Conclusions The Respondent presented no evidence to establish that the Charging Parties were not its employees,2 that they were not interested in working for it, that they were not engaged in 2 In it post-hearing brief, the Respondent asserts that it disputes the General Counsel’s claim that Pagliotti and Cosenza were its employees since they had not completed the initial paperwork which is part of the hiring process. In its answer to the complaint, Respondent admitted that it discharged all three Charging Parties on July 5. It also acknowledged that they were its employees when Neidlinger called Respondent’s office that morning to assure that the three men were properly on the JC Penney job site. Moreover, the evidence shows that supervisor Stoneroad hired Pagliotti and Cosenza after interviewing them by telephone and told them to report for work, without requiring either to fill out an application or other paperwork. JD–36–07 5 10 15 20 25 30 35 40 45 50 4 concerted activity protected by the Act when they raised safety concerns with the general contractor, or that they engaged in any activity which was so improper as to remove them from the protection of the Act. All three Charging Parties were experienced tradesmen and were qualified to do the work for which the Respondent hired them. Battaglia was employed by the Respondent as a tile setter on several projects before the JC Penney job and he had recruited Pagliotti and Cosenza, at the behest of supervisor Herb, who indicated that additional workers were needed. Both Pagliotti and Cosenza had spoken to supervisor Stoneroad on the telephone, discussed their qualifications and experience as well as the pay and benefits the Respondent was offering, and were told to report for work at the JC Penney site on July 5. They were in the process of filling out employment-related paperwork when they were fired. The fact that all three Charging Parties were also employed by Unions and made known their intentions to attempt to organize the Respondent’s employees does not preclude them from being considered employees with the meaning of the Act. NLRB v. Town & Country Electric, Inc., 516 U.S. 85 (1995). There is also no question but that the Charging Parties were engaged in activity protected by the Act when they went to the general contractor’s trailer and complained about the safety issues on the job site that they felt needed to be addressed. Neidlinger’s testimony confirmed that they informed him that they were concerned about hazards involving a generator and an unsecured ladder as well as asking for the OSHA telephone number. There is no evidence that either problem did not exist or was not serious. The three of them went together to the general contractor’s representative and voiced their concerns through Cosenza. This meets the Board’s definition of protected activity which is that it “be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Meyers Industries, 261 NLRB 882, 885 (1986); Meyers Industries, 268 NLRB 493, 497 (1984). Their contact with the general contractor related directly to their conditions of employment and was protected by the Act. NLRB v. Leslie Metal Arts Co., Inc., 509 F. 2d 811, 813 (6th Cir. 1975). Neidlinger testified that he considered their bringing complaints to him to be surprising but recalled nothing unusual about their demeanor. He said that he called Inter-State to assure that they were its employees but that he did not ask that they be removed from the project. Consequently, there is no evidence that any of the men’s language or actions were so opprobrious, egregious, or disruptive as to render them unfit for further service, which it must be in order to lose the Act’s protection. E.g., Timekeeping Systems, Inc., 323 NLRB 244, 247-248 (1997); Wolkerstorfer Co., 305 NLRB 592 fn. 2 (1991). I find that the Respondent violated Section 8(a)(1) of the Act when Herb threatened that the employees who had gone to the general contractor’s trailer would be fired, as it clearly indicated that they would be disciplined for engaging in protected activity. However, considering all of the circumstances, I do not find that Herb’s asking who had gone to the trailer constituted an unlawful coercive interrogation or that the employees were discharged for having done so. The employees went openly to the trailer and willingly identified themselves to Neidlinger who wrote down at least one of their names. When Herb asked who had gone to the general contractor’s trailer after receiving a telephone call from Hepschmidt, Cosenza and Pagliotti said that they had done so. Herb said that they were fired and had to leave the jobsite because they were causing trouble. Within minutes, they placed a call to Hepschmidt and told him they were not causing trouble and were there to work hard. Hepschmidt responded that they should return to work. I find that none of the Charging Parties was actually fired because of their concerted activity of raising safety concerns with the general contractor and that Herb’s asking who went to the trailer did not constitute a coercive interrogation. However, immediately after being told to return to work, Cosenza and Pagliotti identified JD–36–07 5 10 15 20 25 30 35 40 45 50 5 themselves to Hepschmidt as union organizers and were, in fact, fired. Hepschmidt said that he did not want any “union guys” working there and that they should get off the job site. As Herb took away the employment papers Cosenza and Pagliotti were filling out, Battaglia asked “what about me?” and Herb asked if he was “union too.” When Battaglia answered affirmatively, Herb told him he was fired and should get off the job. I find that the General Counsel has made the required showing under Wright Line3 that the Respondent was motivated by union animus when it fired the Charging Parties immediately after they disclosed that they were union organizers and intended to try to organize its employees on the JC Penney project. This shifted the burden to the Respondent to establish that it would have taken the same action even in the absence of their union affiliation and planned organizing activity. The Respondent presented no evidence to establish any other reasons for firing the Charging Parties aside from what Hepschmidt and Herb told them. Consequently, I find that the firings violated Section 8(a)(3), and (1) of the Act. Under these circumstances, I find that Herb’s asking Battaglia if he was “union” was a part of the res gestae of the firings and did not constitute a separate violation of the Act as a coercive interrogation. Conclusions of Law 1. Respondent, Inter-State Tile & Mantel Company, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By threatening that employees would be fired if the concertedly complained about safety hazards on a job site, Respondent violated Section 8(a)(1) of the Act. 3. By discharging employees Joe Battaglia, Dennis Pagliotti, and Fred Cosenza because the were members of a union and planned to attempt to organize Respondent’s employees, Respondent violated Section 8(a)(3) and (1) of the Act. 4. The unfair labor practices found herein are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Remedy Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged employees Joe Battaglia, Dennis Pagliotti, and Fred Cosenza, it must offer them reinstatement and make them whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). 3 251 NLRB 1083 (1980) enf’d 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). JD–36–07 5 10 15 20 25 30 35 40 45 50 6 On these findings of fact and conclusions of law and on the entire record, I issue the following recommended4 ORDER The Respondent, Inter-State Tile & Mantel Company, Inc., its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening that employees will be discharged if they concertedly complain about safety hazards on a job site. (b) Discharging employees because they are members of a union and/or are planning to attempt to organize other employees. (c) 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. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of the Board’s Order, offer Joe Battaglia, Dennis Pagliotti, and Fred Cosenza full reinstatement to their former jobs or, if those jobs no longer exists, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (b) Make Joe Battaglia, Dennis Pagliotti, and Fred Cosenza whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (c) Within 14 days from the date of the Board’s Order, remove from its files any reference to the unlawful discharges, and within 3 days thereafter notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its facility in Harrisburg, PA, copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided 4 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 purposes. 5 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 National Labor Relations Board” shall read “Posted Continued JD–36–07 5 10 15 20 25 30 35 40 45 50 7 by the Regional Director for Region 4, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure 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 5, 2006. (f) 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 insofar as it alleges violations of the Act not specifically found. Dated, Washington, D.C. May 29, 2007 ____________________ Richard A. Scully Administrative Law Judge _________________________ Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” JD–36–07 Harrisburg, PA 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 behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities WE WILL NOT threaten that our employees will be discharged if they concertedly complain about safety hazards on a jobsite. WE WILL NOT discharge or otherwise discriminate against any of our employees for being members of a union or for engaging in activity in support of a union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, within 14 days from the date of this Order, offer Joe Battaglia, Dennis Pagliotti, and Fred Cosenza full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Joe Battaglia, Dennis Pagliotti, and Fred Cosenza whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of this Order, remove from our files any reference to the unlawful discharges of Joe Battaglia, Dennis Pagliotti, and Fred Cosenza, and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the discharges will not be used against them in any way. INTER-STATE TILE & MANTEL COMPANY, INC. (Employer) Dated By (Representative) (Title) The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov. 615 Chestnut Street, One Independence Mall, 7th Floor Philadelphia, Pennsylvania 19106-4404 Hours: 8:30 a.m. to 5 p.m. 215-597-7601. THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, 215-597-7643.