Inter-State Tile & Mantel Company, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 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.