Mazzara Trucking & Excavating Corporation

674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Mazzara Trucking & Excavating Corporation and Local 172, Laborers International Union of North America. Case 04–CA–116883 April 30, 2015 DECISION AND ORDER BY MEMBERS HIROZAWA, JOHNSON, AND MCFERRAN On May 7, 2014, Administrative Law Judge Robert A. Giannasi issued the attached decision. The Charging Party filed exceptions, a supporting brief, and a reply brief. The Respondent filed an answering brief and a motion to reopen the record.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions except as specified herein and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Mazzara Trucking & Exca- 1 The Respondent moves to reopen the record to admit two items of evidence: (1) an April 7, 2014 finding by the Pilesgrove Joint Munici- pal Court against Union Organizer Jaime Machado; and (2) testimony of the lessee of a property neighboring the Green Street jobsite. We deny the motion, as the evidence sought to be adduced would not re- quire a different result. See Sec. 102.48(d)(1) of the Board’s Rules and Regulations. 2 The Charging Party has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance 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. In adopting the judge’s finding that the Respondent did not unlaw- fully interfere with union representatives who sought access to the Respondent’s Pilesgrove jobsite on November 8, 2014, we find it un- necessary to pass on the judge’s finding that the representatives were not engaged in protected activity because we agree with the judge’s alternative analysis that, assuming the union representatives’ activity was protected, they lost the protection of the Act by disrupting the Respondent’s work. Member Johnson would adopt the judge’s deci- sion without modification. No exceptions were filed to the judge’s finding that the Respondent violated Sec. 8(a)(1) by summoning police to interfere with Union Organizer Jaime Machado’s protected concerted activity of filming alleged safety violations at the Green Street jobsite on December 3, 2014. We find it unnecessary to pass on the judge’s dismissals of the alle- gations that on November 22 and December 5, 2014, the Respondent violated Sec. 8(a)(1) by summoning police to interfere with union rep- resentatives filming alleged safety violations at the Green Street jobsite, because finding these additional violations would be cumulative and would not affect the remedy. Member Johnson would adopt the judge’s recommendations for dismissal. vating Corporation, Wrightstown, New Jersey, its offic- ers, agents, successors, and assigns, shall take the action set forth in the Order. Donna Brown, Esq., for the General Counsel. David Jasinski and Cynthia Ringell, Esqs. (Jasinksi, P.C.), of Newark, New Jersey, for the Respondent. DECISION STATEMENT OF THE CASE ROBERT A GIANNASI, Administrative Law Judge. This case was tried in Philadelphia, Pennsylvania, on March 31, 2014. The complaint, as amended at the hearing (Tr. 6–8, 33–34), alleges that Respondent, a construction industry excavating contractor, violated Section 8(a)(1) of the Act on four separate occasions by interfering with nonemployee union representa- tives who sought access to Respondent’s jobsites “in order to prevent its employees from having contact with” Charging Party Union (hereafter, the Union), notwithstanding that Re- spondent “did not have a legitimate property interest in the job site properties.” The Respondent filed an answer denying the essential complaint allegations.1 After the trial, the General Counsel and the Respondent filed briefs, which I have read and considered. Based on the entire record, including the testimony of the witnesses, and my obser- vation of their demeanor, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a New Jersey corporation, with a facility in Wrightstown, New Jersey, is engaged in performing excavation services in the construction industry. I find, as Respondent admits, that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act. I further find, as Respondent also admits, that the Union is a labor organization within the mean- ing of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Facts Background The Union has been attempting to organize Respondent for some time. Union Organizer Jaime Machado2 spoke to Re- spondent’s owner, Isidoro Mazzara, on several occasions about using union labor after bid openings for New Jersey excavation contracts. Mazzara stated he was not interested. (Tr. 11–12, 50–51.) In late October 2013, Machado, along with his superior, Robert DiClementi, went to Respondent’s jobsite at the Early Childhood Center in Pilesgrove Township to “see if we [could] get a contract with [Mazzara] again.” (Tr. 11–12.) Machado and DiClementi approached Respondent’s foreman, Eric Yuhas, on the job and talked to him about Respondent possibly 1 The transcript reference at p. 34, L.16 erroneously names the speaker as Judge Giannasi. The speaker was Mr. Jasinski. The tran- script is corrected accordingly. 2 Machado described himself as an organizer employed by Laborers’ Eastern Region Organizing Fund. (Tr. 10.) 362 NLRB No. 79 MAZZARA TRUCKING & EXCAVATING CORP. 675 “signing a job agreement or a full collective-bargaining agree- ment.” Yuhas said he did not think that Mazzara would do that, and, after a brief conversation, the union agents left. (Tr. 13– 14.)3 The November 8 Incident at the Pilesgrove Project Machado and DiClementi returned to the Pilesgrove jobsite on November 8, 2013, a visit that resulted in one of the com- plaint allegations in this case. The jobsite sits on property owned by the Pilesgrove Board of Education, where the School Board was supervising construction of a new building or build- ings adjacent to an existing structure. The jobsite itself sits some 250 to 300 yards off a public street, accessible by a dirt road that runs from the public street to the jobsite. The entire area between the public street and the jobsite is a construction site, which includes not only the access road, which was to be used by vehicles connected with the construction project, but a construction trailer and a material storage area. (Tr. 18–20, 24, 77.) The area is basically a field of about 70 acres (Tr. 73); it is not fenced off (Tr. 24) or posted against trespassers (Tr. 83). Machado drove his pickup truck along the access road past a group of utility workers, who were installing utility poles on the site. (Tr. 17, 24.) He observed Respondent’s heavy equipment “running behind the [existing] building.” (Tr. 17.) His purpose and that of DiClementi was to talk to Mazzara. (Tr. 18, 67.) Mazzara was operating an excavator, and, when he saw the pickup truck, he drove within 30 to 50 feet of it and stopped. (Tr. 18–19, 22–23, 67; GC Exh. 2.) Mazzara got out of his machine, approached the pickup truck, and asked what Macha- do was doing on the job. Machado said he came there to talk to Mazzara and “try to work something out.” (Tr. 18.) Mazzara replied that he was nonunion and he was going to call the po- lice because the union officials were trespassing. Machado said there were no signs on the property prohibiting trespassers. (Tr. 18–19.) Machado then raised the issue of another Re- spondent jobsite and goaded Mazzara with an unexplained and cryptic question, “where did you bury the trash at?” (Tr. 67– 68.) According to DiClementi, at that point, Mazzara became “more aggravated” and repeated that he was going to call the police. Machado replied that he and DiClementi would be waiting for them. (Tr. 68.) Machado then drove the pickup truck down the access road and off the jobsite. He parked the truck across the public street that adjoined the construction site, in order to wait for the police. (Tr. 19, 68.) Shortly thereafter, several police officers arrived. They first went to the jobsite to talk to Mazzara. They then approached Machado and DiClementi at their parked pickup truck. Macha- do told the officers that he and DiClementi went on the jobsite to speak with Mazzara and “try to work out an agreement for 3 Machado subsequently spoke to Yuhas, perhaps on several occa- sions, including in places outside Respondent’s worksites, and arranged for him to leave Respondent’s employ to take a job with a union con- tractor. Machado also spoke to two or three other employees of Re- spondent, either at their homes or on their telephones, in an apparent attempt to garner support for the Union. He obtained their home ad- dresses from certified payrolls, presumably for work on public projects, and their phone numbers from Yuhas. (Tr. 27–28, 48, 51–54, 56–57, 58–59, 64.) his workers.” (Tr. 19.) After some discussion, the officers arrested Machado and DiClementi, placed them in handcuffs, brought them to a police station, and booked them, after Maz- zara filed a formal complaint against them. (Tr. 20–21, 69–70.) The complaint charges that Machado and DiClementi engaged in disorderly conduct by making or causing to be made “a communication or communications, in any manner likely to cause annoyance or alarm, specifically by arriving at the vic- tim’s jobsite and making harassing statements towards him.” (GC Exhs. 3 and 12.) The police report on the matter fixes the time of the incident at 11:08 a.m. It states that, upon investiga- tion, the officers determined that Machado and DiClementi were harassing Mazarra because they refused to leave the jobsite. According to the report, Machado and DiClementi claimed that they did not have to leave the jobsite because they were protesting that Mazzara was a nonunion contractor. (GC Exh. 3a.) The criminal complaint is still pending before a local court. (Tr. 25.) Frank Rizzo is employed by the Woodstown/Pilesgrove Board of Education. He was responsible for overseeing the Early Childhood Education Center construction project. He testified that, although it was a public construction project as opposed to a private project, the site was not open generally to the public. There is always danger on construction projects and contractors were required to carry insurance against injury. According to Rizzo, if he or his subordinates found individuals on the site who were not part of the construction process, “we would ask them to leave.” (Tr. 76–77.) The contract between Respondent and the School Board pro- vides that the contractor was to “take every precaution against injuries to persons or damage to property,” and “in case of any emergency which threatens loss of injury or property and/or safety of life, the Contractor is required to act as he sees fit.” The contractor is also charged with notifying “the Engineer thereof immediately thereafter.” (R. Exh. 1; Tr. 78–80.) Mazzara followed the requirements of the contract and called Rizzo after his confrontation with Machado and DiClementi. (Tr. 80.) Mazzara told Rizzo what had happened and Rizzo told Mazzara that he did “the right thing.” (Tr. 81.) The Green Street Project From about November 2013 until at least the early part of 2014, Respondent performed work on Green Street, a residen- tial area in Woodstown Township, New Jersey.4 It was a pub- lic job, presumably under a contract with the Township, to replace water and sewer pipes beneath the public street. Parts of the public street and adjacent sidewalks constituted the jobsite or work areas. They were blocked off with traffic cones. Indeed, the entire construction area was set off by barri- cades, directed by the Township. Signs were posted at the bar- ricades stating, “Sidewalks Closed, Local Traffic Only.” (Tr. 28–33, 41, 86.) Respondent usually had three or four workers on the site, including a backhoe operator, Matt Tuck, who ap- parently replaced Eric Yuhas as foreman. Union representa- tives visited the site on numerous occasions (Tr. 39–40, 71, 86, 4 The job was not yet completed at the time of the hearing in this case. (Tr. 85.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 676 88), but only three are mentioned in the complaint, as amended: the visits of November 22, December 3 and 5, 2013. The November 22 Incident On the afternoon of November 22, during working time, Ma- chado and DiClementi visited the jobsite. They parked their vehicle nearby on a public street and proceeded to the worksite, along the sidewalk. According to Machado, the union repre- sentatives wanted to “check on” the jobsite and document pos- sible safety violations. Machado testified that contractors who do not follow proper safety practices make it unfair for compet- itors who do. (Tr. 28.) In that connection, Machado carried with him a video and voice recorder, which he used, to film what transpired and to make comments. (Tr. 29.) This video recording and the video recordings of two other Green Street visits listed in the complaint were received in evidence (GC Exhs. 6, 7, 8, and 9), although those recordings do not capture the entirety of the visits of the union officials (Tr. 86).5 Machado walked toward the work area, filming and com- menting as he approached the work area. He noticed two em- ployees in a trench that he viewed improperly supported and unsafe. According to Machado, as he approached, the employ- ees “came running out of the trench.” (Tr. 29.) He made no attempt to talk to the employees. But Tuck, the backhoe opera- tor, left his machine, walked past Machado and went to a near- by gas station where he had parked his vehicle and made a telephone call, probably to Mazzara. When Tuck returned to the work area, he and Machado exchanged words, including a statement by Machado that Tuck should get a “real job.” This was a reference to Tuck’s predecessor, Yuhas, who left Re- spondent to take a job with a union contractor. (Tr. 29–30, 54– 56, 88.) At some point, Tuck told Machado to leave the jobsite, but Machado did not leave. The police were called and officers came to the jobsite. They talked with both Machado and Tuck, but made no arrests and left. (Tr. 28–32, 38.)6 Later, on November 26, Mazzara filed a complaint against Machado, alleging that Machado was “harassing my men giv- ing them a hard time using foul language talking down to them causing them to stop working. Try to force them to leave job. Men were scared to death in fear of getting harmed.” (GC Exh. 5.) Still later, Machado received a summons from the Mid- Salem Municipal Court to appear in response to the complaint. (GC Exh. 4.) According to Machado, this case is also pending. (Tr. 38.) The December 3 Incident On December 3, Machado returned to the Green Street jobsite with three other union representatives. He parked his vehicle outside the construction work area where traffic cones blocked access. He walked alone to a residence overlooking Respondent’s work area and received the homeowner’s approv- 5 Machado either brought or sought to bring his evidence of alleged safety violations to the attention of the Occupational Safety and Health Administration (OSHA), a police officer, and someone he identified as an inspector on the Green Street job (Tr. 31, 44–45, 46-47; GC Exh. 11). 6 There was apparently no police report on this incident; at least none was offered or placed in evidence. al to film the work area from the homeowner’s porch. (Tr. 41– 42, 44.) He filmed workers in a trench, as well as Mazzara, who was, on this occasion, also present and working on the site. The filming was done on worktime. Mazzara was close enough to Machado for the latter to hear Mazzara say to one of his employees, “he’s not supposed to be here,” referring to Macha- do. Mazzara or one of his employees was seen making a phone call, and, a few minutes later, after Machado had exited the home where he was filming, the police appeared. An officer asked if Machado had been on the worksite and he replied that he had not, stating that he was in a nearby house with the own- er’s permission. (Tr. 43–44; GC Exh. 8.) After confirming Machado’s story with the homeowner, the officer spoke to Mazzara, then returned to speak to Machado, telling him that he did not do anything wrong. The officer then left. (Tr. 43–44.) There was no arrest on this occasion and Mazzara did not file a complaint against Machado. But a police report was filed by officer Ryan DeFalco, who arrived on the scene at 1:13 p.m. and left at 1:57 p.m. The report basically confirms the above account and also confirms that the officer was satisfied that Machado did not enter a construction zone, as alleged by Maz- zara. (GC Exh. 9.) The December 5 Incident On December 5, Machado again visited the Green Street jobsite. This time he came with DiClementi and another union representative. After parking outside the construction area, the union officials walked up the public sidewalk to a trench in which Respondent’s employees were working. Again this was during worktime and again Machado was video recording the scene. Machado testified that, once one of the workers left the trench and walked away, he, Machado, stepped onto the pave- ment and “hung [his] camera over” the trench to film it. One of Respondent’s employees was still in the trench. (Tr. 45–46.) After filming for 4 or 5 minutes, Machado and his associates walked back toward the entrance to the construction area and encountered someone he identified as an inspector. Machado engaged in a discussion with the inspector, telling the inspector that, in his view, there were safety issues on the job, including the way the sidewalks and roadways were closed down. (Tr. 46.) At that point, a police officer, presumably called by an agent of Respondent, approached Machado. According to Ma- chado, the officer asked if he or any of the other union repre- sentatives threatened the employees. Machado denied he or the others had done so, and, after speaking to Respondent’s fore- man, the officer left the area. (Tr. 46–47; GC Exh. 10.) Here again, there was no arrest and no complaint was filed. There was, however, a police report, prepared by an officer named Mattson, who arrived on the scene at 11:35 a.m. and left at 12 noon. The report (GC Exh. 11) states as follows: Mazzara Construction advised that union representatives were impeding workers. Upon arrival spoke with union personnel who were not in the immediate work area and were speaking with engineer from Remington & Vernick. Both parties ad- vised they were having a discussion over safety concerns. Spoke with heavy equipment operator who advised that prior to my arrival union personnel were to (sic) close to the open- MAZZARA TRUCKING & EXCAVATING CORP. 677 ing of the road and were creating a distraction for workers. I did not observe this take place. I advised union reps to stay away from active work area and they advised they would comply and were preparing to leave the site. Tuck’s Testimony about the Visits to the Green Street Job Respondent’s foreman on the Green Street job, Matt Tuck, offered credible testimony, not seriously challenged on cross- examination, about how he viewed the visits generally of the union officials to the jobsite. His testimony, in pertinent part, is as follows (Tr. 87–88): [T]hey were trying to get our attention . . . . They were trying to draw our attention away from what we were doing. We were trying to . . . put the sewer main or the water main . . . and they would always try and draw our attention away from the task that we were—we had that day. They would ways . . try and pull us away from—you know, to slow us down or make a mistake so someone got hurt or something. . . . . My men are supposed to be there, and I know who they are. Now anyone else standing around is, kind of, a distraction to be honest with you. Based on my viewing of the video recordings of Machado’s job visits, his testimony and that of DiClementi, and, in all the circumstances, I conclude that Tuck’s testimony described above is an accurate assessment of the visits of the union offi- cials on November 22 and December 5. The visit of December 3 is on somewhat of a different footing because Machado did not actually enter the jobsite or the work area. He filmed en- tirely from the porch overlooking the jobsite at a private home whose owner gave him permission to be there. Nor did Tuck testify specifically about the December 3 incident. B. Discussion and Analysis Section 8(a)(1) of the Act prohibits employers from restrain- ing, coercing, or interfering with employees exercising rights guaranteed under Section 7 of the Act. Section 7 protects con- certed activity by employees who seek to band together “to improve terms and conditions of employment or otherwise improve their lot as employees through channels [even] outside the immediate employee-employer relationship.” Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). Employees may engage in concerted protected activity at the work place during nonwork- time, absent special circumstances such as interference with production or discipline. Id. at 557; and Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 fn. 10 (1945). Short of a protected strike or work stoppage, such activity should not halt or interfere with work. The phrase “[w]orking time is for work” is a “long-accepted maxim of labor relations.” Our Way, Inc., 268 NLRB 394 (1983). Unions have derivative Section 7 rights, based on their status as employee representatives or as entities seeking to represent employees. While those rights most often involve efforts to reach or organize employees, they also include other efforts such as publicizing labor disputes and protecting area stand- ards. See Petrochem Insulation, Inc. v. NLRB, 240 F.3d 26, 29–30 (D.C. Cir. 2001), cert. denied 534 U.S. 992 (2001); Ve- netian Casino Resort v. NLRB, 484 F.3d 601, 608–610 (D.C. Cir. 2007), cert. denied 552 U.S. 1257 (2008); Tradesmen In- ternational v. NLRB, 275 F.3d 1137, 1142–1144 (D.C. Cir. 2007); and NLRB v. Roundy’s, 674 F.3d 638, 649–650 (7th Cir. 2012), enfg. 356 NLRB 127 (2010). But, like employees en- gaged in concerted protected activity, nonemployee organizers or representatives may be restricted to prevent interference with an employer’s work or the work of its employees. Moreover, nonemployee union organizers or representatives who engage in concerted protected activity are subject to far greater restrictions with respect to their right to access private property than employees. See Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992); Metropolitan District Council of Carpenters v. NLRB, 68 F.3d 71, 73–74 (3d Cir. 1995); and Roundy’s, above, 674 F.3d at 649. Generally, absent discrimination, an employer need not permit nonemployee union representatives on its property unless there are no adequate alternative means to reach employees. Lechmere, above, 502 U.S. at 538–540, citing NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). Nor do union claims of protected concerted activity preempt State trespass laws. Metropolitan District Council of Carpen- ters, above, 68 F.3d at 74, citing authorities. But, in order to justify ousting nonemployee union representatives engaging in concerted protected activity, an employer has the burden of establishing that its property rights or interests permit it to ex- clude them. See Roundy’s, above, 674 F.3d at 650–651 (an employer’s easement does not amount to an exclusionary right under applicable State law). And nonemployee representatives may not be excluded from public areas so long as they are en- gaged in protected concerted activity. Roger D. Hughes Dry- wall, 344 NLRB 413, 414–415 (2005), and cases there cited. Unlawful interference with protected concerted activity may take many forms, but, in the context of employer exclusion of nonemployee union representatives, calling the police or having union representatives removed or arrested by police counts as such interference. See Roundy’s, above, 356 NLRB at 128, enfd. 674 F.3d at 655; and Roger D. Hughes Drywall, above, 344 NLRB at 415. But see Venetian Casino Resort, above, 484 F.3d at 610–614 (employer’s actions in attempting to effectuate a citizen’s arrest and broadcasting a no-trespass message con- stituted unlawful interference with protected concerted activity, but issue of summoning police is remanded to determine whether summoning police in the circumstances of that case amounted to petitioning government under the Supreme Court’s Noerr-Pennington doctrine). With these principles in mind, I now turn to the four specific instances in the complaint where the General Counsel alleges that the Respondent interfered with protected concerted activity in violation of Section 8(a)(1) of the Act. The Pilesgrove Allegation Contrary to the relevant complaint allegation dealing with the November 8 incident at the Pilesgrove jobsite, Respondent did nothing to prevent Machado and DiClementi from “having contact with employees.” Indeed, it is clear from the testimony DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 678 of both Machado and DiClementi that the union representatives did not come on the jobsite to speak to employees. They want- ed only to talk to Mazzara about signing a contract with the Union. It is also clear that Mazzara did not want to work with the Union and did not want to discuss the matter. I am unaware of any cases that establish a Section 7 right for nonemployee union representatives to go onto a jobsite in order to convince an employer to sign a union contract, especially when, as here, the employer does not want to discuss the matter. Nor does the General Counsel’s brief cite any such cases. There were, in any event, other less intrusive ways to talk to or communicate with an employer with whom the Union wanted a relationship. The union representatives had already asked for Mazzara’s support and were firmly rejected. He did not want anything to do with the Union.7 Even if it could be determined that there were a protected Section 7 right for the union officials to come on to the jobsite to talk with Mazzara, they forfeited that right by interfering with Respondent’s work during worktime, thus rendering their intrusion unprotected. Mazzara was operating an excavator when Machado and DiClementi confronted him on the jobsite. They certainly did not leave when they received a predictable refusal by Mazzara to recognize the Union or even talk to them about the subject. Mazzara could justifiably feel harassed when the union officials refused his request that they leave and when Machado goaded him with a cryptic reference to another job, asking where he had “buried” the trash. Nor, in the circumstances, was Mazzara without authority to eject the union representatives from the jobsite. The Pilesgrove jobsite is not the equivalent of a public square or other public areas where protests or demonstrations are normally protected. Indeed, neither of the cases cited by the General Counsel in support of the notion that Mazzara was without authority to oust the union representatives from the Pilesgrove jobsite (Br. 14) involve, as here, a publicly owned site that is also a con- struction area.8 It is clear from Rizzo’s testimony that the public and those not connected with the construction project were not permitted on the jobsite, in part because construction sites are dangerous places. Mazzara was authorized by the contract between him and the School Board to act as he saw “fit” when presented with potential interlopers. And if that contract language did not explicitly authorize him to eject those interfering with his work, it implicitly did so. In any event, Rizzo’s uncontradicted testi- mony made clear that he, on behalf of the public owner of the construction site property, ratified Mazzara’s actions in making sure that the union officials were ejected from the property, 7 To the extent that the Union wanted to communicate with Re- spondent’s employees, the evidence shows that it did so by other means. See fn. 3 above. 8 Thus, in Hanover Concrete Co., 241 NLRB 936, 937 (1979), a former employee was unlawfully ordered to leave a public road near the employer’s plant. And, in Harco Asphalt Paving, Inc., 353 NLRB 661 (2008), a two-member Board case with no precedential value, it is unclear whether the protected activity took place on a public street or simply on property in which the employer had no exclusionary interest. But, in any case, there was no work being performed in that area. (Id. at 665.) even if it meant calling the police. In these circumstances, I shall dismiss the complaint allegations dealing with the Pi- lesgrove jobsite. The Green Street Allegations As in the Pilesgrove allegation, there is no record support for the General Counsel’s contention that Respondent prevented the union representative from communicating with employees on the Green Street job because the union representatives never attempted to communicate with the employees. Machado clear- ly stated intent was to video record alleged safety violations. It is this activity that the General Counsel asserts amounts to pro- tected concerted activity (GC Br. 17). Although it is not the type of protected concerted activity by unions that permeates the NLRB and appellate court case reports, I recognize the Union’s concerns. Union representatives were entitled to pub- licize and bring to the attention of both employees and the gen- eral public alleged safety violations by an employer who, in Machado’s view, was willing to cut corners to save money. Those alleged safety violations might well harm employees and put other employers, perhaps union employers, at a competitive disadvantage. The Union was entitled to document and publi- cize these alleged safety violations as they involve working conditions protected by Section 7. Divorced from its location and interference with work, the Union’s protest against alleged safety violations is comparable to union handbilling that pro- tests failure of an employer to pay area standard wages, the very concerted protected activity involved in the Roundy’s case, cited above. See also Petrochem Insulation, Inc., 330 NLRB 47, 49–50 (1999), enfd. at 240 F.3d 26, cited above (protests involving safety and health issues are protected). Thus, I find that, as an initial matter, Machado’s video re- cording of alleged safety violations amounted to concerted protected activity, notwithstanding that neither he nor his asso- ciates actually talked to or wanted to talk to employees. Alt- hough the complaint spoke in terms of communicating with employees in its conclusory paragraph, it also set forth in one of its descriptive paragraphs that “Machado was filming what he believed to be safety violations.” In any event, the issue of what Machado was doing on the Green Street jobsite was fully litigated. Nevertheless, I find that, at least on November 22 and De- cember 5, the conduct of Machado and his fellow union repre- sentatives lost the protection of the Act because it was unduly intrusive. It constituted an invasion of restricted work space and interfered with the work of Respondent’s employees on worktime. Tuck’s uncontradicted testimony establishes that the Township, on whose public property the construction was tak- ing place, authorized barriers precluding people who did not live or have business in the area from entering the construction area. In this respect, the restriction was authorized by the pub- lic entity that “owned” the property and it was for the benefit of Respondent, who can be said to have been the agent of the Township in restricting access.9 9 Calling the police who represent the public entity that “owned” the property was a reasonable way to enforce the restriction. MAZZARA TRUCKING & EXCAVATING CORP. 679 The union representatives violated that restriction on No- vember 22 and December 5. Indeed, the video evidence of the November 22 visit clearly shows that Machado was within several feet of the trench he was filming, well within the re- stricted zone. And on December 5, he himself testified that he went on the pavement and reached his video recorder over the trench. In both cases, employees were working in the trench and they left their worksite when approached by Machado. The backhoe operator also stopped working. Thus, Machado’s filming and his presence, even after he was asked to leave, interfered with the work of employees during worktime. Such activity would not insulate employees from restrictions under the time honored rule that “working time is for work.” And it should likewise not insulate Machado and his associates here. I therefore find that their activity at the Green Street worksite on November 22 and December 5 was unprotected and I shall dismiss those allegations in the complaint.10 Machado’s conduct on December 3 is different. He was filming alleged safety violations from the vantage point of a private residence, whose owner had given him permission to be there. Although Mazzara, who was present on the job and ap- parently close enough to observe Machado, was obviously per- turbed, he had no right to interfere with or restrain Machado’s Section 7 activity from where he was filming. Any interference with work was negligible since Machado did not physically come into a work area. His filming was the equivalent of using a long zoom camera lens from afar, with no physical invasion of the work area. Thus, unlike his activity on November 22 and December 5, Machado’s filming on this occasion did not lose the protection of the Act.11 Even though there was no arrest or criminal complaint, Re- spondent’s summoning of police on December 3 amounted to unlawful conduct, particularly since the police investigation confirmed that Machado was lawfully on private property with the consent of the owner when he was engaged in protected Section 7 activity. It is settled that the test of interference, re- straint, and coercion under Section 8(a)(1) does not turn on the employer’s motive or on whether the coercion succeeded or failed; the test is whether the employer engaged in “conduct which, it may reasonably be said, tends to interfere with the free exercise” of Section 7 rights. NLRB v. Illinois Tool Works, 153 F.2d. 811, 816 (7th Cir. 1946). And see Medcare Associ- ates, Inc., 330 NLRB 935, 940 fn. 17 (2000). Here, it is clear that Respondent’s action in calling the police had the tendency to restrain Machado. Indeed, that was likely 10 On this point, the General Counsel cites cases in support of the proposition that union representatives who engage in protected concert- ed activity on public property may not be excluded from that property (GC Br. 16–17). But those cases are inapposite. None of the cases involve, as here, public property that also constituted construction areas. Nor did they involve, as here, interference with an employer’s work in such construction area, which rendered any concerted activity there unprotected. 11 Contrary to Respondent’s contention (R. Br. 12, 25–26), there is no evidence that, on this occasion, Machado “harassed and intimidated” employees. Mazzara did not testify at all in this case and Tuck’s testi- mony on the Green Street visits is very general. Tuck does not specifi- cally mention the December 3 incident. Mazzara’s intent and his conduct had its intended effect: Ma- chado left the porch where he was filming when he heard Maz- zara say that he, Machado, did not belong where he was and when Machado realized that someone, at Mazzara’s behest, appeared to be calling the police. I find that Machado was interrupted in his protected filming, and prematurely left the place where he could justifiably have continued his protected concerted activity. Moreover, the experience of having to deal with a police investigation when he was properly engaging in protected concerted activity on this occasion would inhibit any future protected concerted activity of the same type on his part. I therefore find that, by calling the police to stop, or at least investigate, Machado’s protected filming on December 3, Re- spondent violated Section 8(a)(1) of the Act. See Roundy’s, cited above, 356 NLRB at 128. CONCLUSIONS OF LAW 1. By summoning police to interfere with Union Organizer Jaime Machado’s protected concerted activity outside the Green Street jobsite on December 3, 2014, Respondent violated Section 8(a)(1) of the Act. 2. The above violation is an unfair labor practice within the meaning of the Act. 3. Respondent has not violated the Act in any other respect. REMEDY Having found that Respondent committed an unfair labor practice, I shall order it to cease and desist from such conduct and take certain affirmative action designed to effectuate the policies of the Act by posting an appropriate notice. See the Board’s order in Roundy’s, cited above, 356 NLRB at 128. On these findings of fact and conclusions of law, and on the entire record herein, I issue the following recommended12 ORDER The Respondent, Mazzara Trucking & Excavating Corpora- tion, Wrightstown, New Jersey, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Summoning police to interfere with union representatives filming alleged safety violations or engaging in other protected concerted activity from locations where they have authority to be present. (b) In any like or related manner, interfering with, restrain- ing, or coercing employees or union representatives in the exer- cise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days after service by the Region, post, at its fa- cility in Wrightstown, New Jersey, copies of the attached notice marked “Appendix.”13 Copies of the notice, on forms provided 12 If no exceptions are filed, as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be waived for all purpos- es. 13 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- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 680 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 con- spicuous places, including all places where notices to employ- ees are customarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as email, posting on an intranet or an internal site, and/or other electronic means, if the Respondent customarily com- municates with employees by such means. 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 Re- spondent has gone out of business or closed the facility in- volved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and all former employees employed by the Respondent at any time since November 12, 2013. (b) 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. 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. 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.” FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain on your behalf with your employer Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT summon police to interfere with union repre- sentatives filming alleged safety violations or engaging in other protected concerted activity from locations where they have authority to be present. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees or union representatives in the ex- ercise of rights guaranteed by Section 7 of the Act. MAZZARA TRUCKING & EXCAVATING CORPORATION The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/04-CA-116883 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273–1940.