Mazzara Trucking & Excavating Corporation

National Labor Relations Board - Administrative Judge Opinions

May 7, 2014

04-CA-116883 (N.L.R.B. May. 7, 2014)

JD–25–14
Wrightstown, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MAZZARA TRUCKING &
EXCAVATING CORPORATION
and Case 04–CA–116883
LOCAL 172, LABORERS INTERNATIONAL
UNION OF NORTH AMERICA
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 non-employee union representatives
who sought access to Respondent’s job sites “in order to prevent its employees from having
contact with” Charging Party Union (hereafter, the Union), notwithstanding that Respondent
“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
observation of their demeanor, I make the following

1 The transcript reference at p. 34, l. 16 erroneously names the speaker as Judge Giannasi. The
speaker was Mr. Jasinski. The transcript is corrected accordingly.
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2
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New Jersey corporation with a facility in Wrightstown, New Jersey, is 5
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 meaning of
Section 2(5) of the Act.
10
II. Alleged Unfair Labor Practices
A. The Facts
Background15
The Union has been attempting to organize Respondent for some time. Union Organizer
Jaime Machado2 spoke to Respondent’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, 50-51.20
In late October 2013, Machado, along with his superior, Robert DiClementi, went to
Respondent’s job site 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 25
“signing a job agreement or a full collective bargaining agreement.” 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
30
Machado and DiClementi returned to the Pilesgrove jobsite on November 8, 2013, a visit
that resulted in one of the complaint 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 buildings 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 35
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

2 Machado described himself as an organizer employed by Laborers’ Eastern Region Organizing
Fund. Tr. 10.
3 Machado subsequently spoke to Yuhas, perhaps on several occasions, including in places outside
Respondent’s work sites, and arranged for him to leave Respondent’s employ to take a job with a union
contractor. Machado also spoke to two or three other employees of Respondent, either at their homes or
on their telephones, in an apparent attempt to garner support for the Union. He obtained their home
addresses 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.
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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.
5
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, G.C. Exh. 2. Mazzara got out of his
machine, approached the pickup truck, and asked what Machado 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 police because the union officials were 10
trespassing. Machado said there were no signs on the property prohibiting trespassers. Tr. 18-19.
Machado then raised the issue of another Respondent 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. 15
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 20
Mazzara. They then approached Machado and DiClementi at their parked pickup truck.
Machado told the officers that he and DiClementi went on the jobsite to speak with Mazzara and
“try to work out an agreement for 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 Mazzara filed a formal complaint against them. Tr. 20-21, 69-70. The 25
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 the victim’s job site and making harassing
statements towards him.” G.C. 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 investigation, the officers determined that Machado 30
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 job site because
they were protesting that Mazzara was a nonunion contractor. G.C. Exh. 3a. The criminal
complaint is still pending before a local court. Tr. 25.
35
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 40
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 provides that the contractor was
to “take every precaution against injuries to persons or damage to property,” and “in case of any 45
emergency which threatens loss of injury or property and/or safety of life, the Contractor is
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4
required to act as he sees fit.” The contractor is also charged with notifying “the Engineer
thereof immediately thereafter.” R. Exh. 1 and 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 5
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 10
work on Green Street, a residential area in Woodstown Township, New Jersey.4 It was a public
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 barricades, directed by the Township. Signs were posted at the barricades stating, “Sidewalks 15
Closed, Local Traffic Only.” Tr. 28-33, 41, 86. Respondent usually had 3 or 4 workers on the
site, including a backhoe operator, Matt Tuck, who apparently replaced Eric Yuhas as foreman.
Union representatives visited the site on numerous occasions (Tr. 39-40, 71, 86, 88), but only 3
are mentioned in the complaint, as amended: the visits of November 22, December 3 and
December 5, 2013.20
The November 22 Incident
On the afternoon of November 22, during working time, Machado and DiClementi
visited the jobsite. They parked their vehicle nearby on a public street and proceeded to the work 25
site, along the sidewalk. According to Machado, the union representatives wanted to “check on”
the job site and document possible safety violations. Machado testified that contractors who do
not follow proper safety practices make it unfair for competitors 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 30
other Green Street visits listed in the complaint were received in evidence (G.C. 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 commenting as he approached the 35
work area. He noticed two employees in a trench that he viewed improperly supported and
unsafe. According to Machado, as he approached, the employees “came running out of the
trench.” Tr. 29. He made no attempt to talk to the employees. But Tuck, the backhoe operator,
left his machine, walked past Machado and went to a nearby gas station where he had parked his
vehicle and made a telephone call, probably to Mazzara. When Tuck returned to the work area, 40
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 Respondent to take a job

4 The job was not yet completed at the time of the hearing in this case. Tr. 85.
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, G.C. Exh. 11).
JD–25–14
5
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 job site.
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 5
Machado was “harassing my men giving 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.” G.C. Exh. 5. Still later, Machado received a summons from the Mid-
Salem Municipal Court to appear in response to the complaint. G. C. Exh. 4. According to
Machado, this case is also pending. Tr. 38.10
The December 3 Incident
On December 3, Machado returned to the Green Street jobsite with 3 other union
representatives. He parked his vehicle outside the construction work area where traffic cones 15
blocked access. He walked alone to a residence overlooking Respondent’s work area and
received the homeowner’s approval 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 work time. Mazzara was close
enough to Machado for the latter to hear Mazzara say to one of his employees, “he’s not 20
supposed to be here,” referring to Machado. 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 work site and he replied that
he had not, stating that he was in a nearby house with the owner’s permission. Tr. 43-44, G.C.
Exh. 8. After confirming Machado’s story with the homeowner, the officer spoke to Mazzara, 25
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 30
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 Mazzara. G.C. Exh. 9.
The December 5 Incident35
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 work time and again Machado was video recording the scene. 40
Machado testified that, once one of the workers left the trench and walked away, he, Machado,
stepped onto the pavement 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

6 There was apparently no police report on this incident; at least none was offered or placed in
evidence.
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6
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 Machado, the
officer asked if he or any of the other union representatives threatened the employees. Machado 5
denied he or the others had done so, and, after speaking to Respondent’s foreman, the officer left
the area. Tr. 46-47, G.C. 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 10
12 noon. The report (G.C. 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 advised they were 15
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 opening 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.20
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 25
union officials to the job site. 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 the30
task that we were—we had that day. They would always . . . try and pull us away
from—you know, to slow us down or make a mistake so someone got hurt or something.
* * * * *
35
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 40
above is an accurate assessment of the visits of the union officials 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 job site or the work area. He filmed entirely 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. 45
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B. Discussion and Analysis
Section 8(a)(1) of the Act prohibits employers from restraining, coercing or interfering
with employees exercising rights guaranteed under Section 7 of the Act. Section 7 protects
concerted activity by employees who seek to band together “to improve terms and conditions of 5
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 n. 10 (1945). Short of a protected strike or 10
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 15
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 standards. See Petrochem Insulation, Inc. v. NLRB, 240 F.3d 26, 29-30
(D.C. Cir. 2001), cert. denied, 534 U.S. 992 (2001); Venetian Casino Resort v. NLRB, 484 F.3d
601, 608-610 (D.C. Cir. 2007), cert. denied, 552 U.S. 1257 (2008); Tradesmen International, 20
Inc. 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), enforcing 356 NLRB No. 27 (2010). But, like employees engaged 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.
25
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 (C.A. 3, 1995); and Roundy’s, above,
674 F.3d at 649. Generally, absent discrimination, an employer need not permit nonemployee 30
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 Carpenters, above, 68 F.3d at 74, citing authorities. But, in
order to justify ousting nonemployee union representatives engaging in concerted protected 35
activity, an employer has the burden of establishing that its property rights or interests permit it
to exclude 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 engaged in protected concerted
activity. Roger D. Hughes Drywall, 344 NLRB 413, 414-415 (2005) and cases there cited.40
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 No. 27 at slip op. 2, ALJ slip op. 9-11, 14, enforced, 674 F.3d at 45
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
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broadcasting a no-trespass message constituted 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) .
5
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.
10
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 of both Machado and 15
DiClementi that the union representatives did not come on the jobsite to speak to employees.
They wanted 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, 20
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 25
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 work time, thus rendering their intrusion unprotected. Mazzara
was operating an excavator when Machado and DiClementi confronted him on the jobsite. They 30
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.
35
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
40

7 To the extent that the Union wanted to communicate with Respondent’s employees, the evidence
shows that it did so by other means. See footnote 3 above.
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authority to oust the union representatives from the Pilesgrove jobsite (Br. 14) involve, as here, a
publicly owned site that is also a construction 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 5
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 testimony 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 10
ejected from the property, even if it meant calling the police. In these circumstances, I shall
dismiss the complaint allegations dealing with the Pilesgrove jobsite.
The Green Street Allegations15
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’s clearly stated intent was to video record alleged 20
safety violations. It is this activity that the General Counsel asserts amounts to protected
concerted activity (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 publicize and bring to the attention of both employees and
the general public alleged safety violations by an employer who, in Machado’s view, was willing 25
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 publicize 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 protests30
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), enforced at 240 F.3d 26, cited above (protests involving safety and health issues are
protected).
35
Thus, I find that, as an initial matter, Machado’s video recording of alleged safety
violations amounted to concerted protected activity, notwithstanding that neither he nor his
associates actually talked to or wanted to talk to employees. Although 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 40
any event, the issue of what Machado was doing on the Green Street jobsite was fully litigated.

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.
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Nevertheless, I find that, at least on November 22 and December 5, the conduct of
Machado and his fellow union representatives 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 work time. Tuck’s uncontradicted testimony establishes that the
Township, on whose public property the construction was taking place, authorized barriers 5
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 public 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
10
The union representatives violated that restriction on November 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 restricted 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 work site when approached 15
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 work
time. 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 20
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 apparently close enough to observe 25
Machado, was obviously perturbed, 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 30
protection of the Act.11
Even though there was no arrest or criminal complaint, Respondent’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 35
was engaged in protected Section 7 activity. It is settled that the test of interference, restraint and

9 Calling the police who represent the public entity that “owned” the property was a reasonable way
to enforce the restriction.
10 On this point, the General Counsel cites cases in support of the proposition that union
representatives who engage in protected concerted activity on public property may not be excluded from
that property (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 (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
testimony on the Green Street visits is very general. Tuck does not specifically mention the December 3
incident.
JD–25–14
11
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 Associates, Inc., 330 NLRB
935, 940 n. 17 (2000). 5
Here, it is clear that Respondent’s action in calling the police had the tendency to restrain
Machado. Indeed, that was likely Mazzara’s intent and his conduct had its intended effect:
Machado left the porch where he was filming when he heard Mazzara say that he, Machado, did
not belong where he was and when Machado realized that someone, at Mazzara’s behest, 10
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 15
police to stop, or at least investigate, Machado’s protected filming on December 3, Respondent
violated Section 8(a)(1) of the Act. See Roundy’s, cited above, 356 NLRB No. 27 at slip op. 2
and ALJ slip op. 9-11, 14.
Conclusions of Law20
1. By summoning police to interfere with Union Organizer Jaime Machado’s protected
concerted activity outside the Green Street jobsite on December 3, 2013, Respondent
violated Section 8(a)(1) of the Act.
25
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.
Remedy30
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 No. 27 at slip op. 2.35
On these findings of fact and conclusions of law, and on the entire record herein, I issue
the following recommended12
40

12 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 waived for all purposes.
JD–25–14
12
ORDER
The Respondent, Mazzara Trucking & Excavating Corporation, its officers, agents,
successors and assigns, shall:
5
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.10
(b) In any like or related manner, interfering with, restraining, or coercing employees or
union representatives in the exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act15
(a) Within 14 days after service by the Region, post, at its facility in Wrightstown, New
Jersey, copies of the attached notice marked “Appendix.”13 Copies of the notice, on
forms provided by the Regional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and 20
maintained for 60 consecutive days in conspicuous places, including all places where
notices to employees 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 communicates with employees by such means. Reasonable steps shall be 25
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 all former employees employed by the 30
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.35
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
40

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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–25–14
13
Dated, Washington, D.C., May 7, 2014.
________________________________5
Robert A. Giannasi
Administrative Law Judge
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 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 activities.
WE WILL NOT summon 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.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees or
union representatives in the exercise of rights guaranteed by Section 7 of the Act.
MAZZARA TRUCKING &
EXCAVATING CORPORATION
(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, Suite 710, Philadelphia, PA 19106-4404
(215) 597-7601, Hours: 8:30 a.m. to 5 p.m.
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.
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, (513) 684-3750