CF Taffe Plumbing

National Labor Relations Board - Board Decisions

Dec 30, 2011

357 N.L.R.B. 2034 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 165
2034
CF Taffe Plumbing Co., Inc. and Michael Schmidt.
Case 13–CA–045890
December 30, 2011
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On November 10, 2011, Administrative Law Judge
Arthur J. Amchan issued the attached supplemental deci-
sion, with attached exhibits. The Respondent filed ex-
ceptions and a supporting brief, and the Acting General
Counsel filed an answering brief.
The National Labor Relations Board has considered
the supplemental decision with exhibits and the record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,1 and conclusion2 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, CF Taffe Plumbing Co., Inc.,
Chicago, Illinois, its officers, agents, successors, and
assigns, shall take the action as set forth in the Order.

Sylvia L. Taylor, Esq., for the General Counsel.
Daniel M. Purdom & Brian R. Zeeck, Esqs. (Hinshaw & Cul-
bertson, LLP), of Lisle, Illinois, for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. On Septem-
ber 1, 2011, the Board issued a decision and order affirming the
rulings, findings and conclusions, as modified, in my Novem-
ber 8, 2010 decision in this case. The Board’s decision was not
published. I am therefore attaching the substantive part of the
initial decision to this supplemental decision since my findings
in this phase of the case are more easily understood in context.
In that initial decision I concluded that Respondent violated
Section 8(a)(3) and (1) of the Act by terminating the employ-
ment of Charging Party Michael Schmidt on February 6, 2010.
However, I concluded that Schmidt forfeited his entitlement to
reinstatement by sending a threatening text message to co-

1 The Respondent 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.
2 Although Member Hayes would have rejected the Charging Party's
motion to reopen the record as untimely, he agrees that the judge's
credibility findings based on the additional evidence now in the record
support the conclusion that discriminatee Schmidt did not make a post-
discharge threat warranting forfeiture of his entitlement to make-whole
remedial relief.
worker Joseph O’Brien on May 6, 2010, which I found O’Brien
immediately forwarded to Respondent. I also concluded that
Schmidt’s entitlement to backpay was tolled as of May 6, 2010
When filing exceptions to the initial decision, Charging Party
Schmidt appended phone records in support of his claim that he
did not send O’Brien the May 6, 2010 text. Respondent filed a
motion to strike those phone records, which the Board granted
on January 14, 2001.
On January 25, 2011, Charging Party Schmidt filed a motion
to reopen the record, which the Board granted. On September
1, 2011, the Board directed me to issue revised findings of fact
and conclusions of law as to whether Schmidt sent O’Brien the
May 6 text message and to reconsider, in the event I find that
Schmidt sent O’Brien the May 6 text message, the Charging
Party’s fitness for future service in light of the Board’s Febru-
ary 14, 2011 decision in Hawaii Tribune-Herald (aka Stephens
Media, LLC), 356 NLRB 661. I interpret that Board’s Order as
mandating the traditional remedy of reinstatement and backpay
in the event that I conclude that Schmidt did not send O’Brien
this message.
In Hawaii Tribune-Herald, the Board reiterated an earlier
decision, towit, that an employer seeking to be excused from its
obligation to reinstate or pay backpay to a discriminatee for
misconduct which was not a factor in the discriminatory action,
has a heavier burden than when it is merely seeking to justify
the original determination. Such an employer must prove the
misconduct was “so flagrant as to render the employee unfit for
further service, or a threat to efficiency in the plant.” This rule
is based on the proposition that the Board takes into account the
natural tendency of an unlawfully discharged employee to react
to his or her discharge with some vehemence.
In any event, since I conclude that Schmidt did not send the
text message on May 6, 2010, or at any other time, I am simply
obliged to order the traditional remedies.
Charging Party Schmidt did not send Joseph O’Brien
any text messages on May 6, 2010
I conducted a supplemental hearing on October 17, 2011,
which lasted 1 hour. Pursuant to my suggestion and the agree-
ment of all parties, I conducted the hearing by video conferenc-
ing from Washington, D.C. All the parties, witnesses and the
court reporter were in the Board’s Regional Office in Chicago.
Transcript references to the supplemental hearing have an “S”
in front of them. The General Counsel, Respondent and the
Charging Party filed briefs with respect to the supplemental
hearing. I have read these briefs and considered them.
The General Counsel presented the testimony of Kelly
Smith, a supervisor for Verizon Wireless, and records that Ms.
Smith obtained from Verizon Wireless’ records regarding
Charging Party’s Schmidt’s cell phone usage between April 22
and May 20, 2010 (GC Exh. 9). Smith’s testimony and these
records establish conclusively that Schmidt did not send text
messages to anyone on May 6, 2010.
I credit Schmidt’s testimony that he did not send the
“your days are over” text to O’Brien on any date
At the October 17, 2011 supplemental hearing, Respondent
called Schmidt as an adverse witness. At first Schmidt refused
to answer Respondent’s counsel’s question as to whether he
CF TAFFE PLUMBING CO. 2035
sent the “your days are over” text on any date other than May 6,
Str. 22––24. After I directed him to answer, Schmidt categori-
cally denied ever sending O’Brien this message. At the initial
hearing, Respondent confronted Schmidt with copies of three
text messages, Exh. R-3, one of which was the “your days are
over” text. Schmidt testified first that he had never seen the
text; then that he didn’t remember sending the text and then that
he believed that he had not sent the text, Tr. 103. He acknowl-
edged that he sent O’Brien a text at 1:33 p.m. on February 19,
stating:

What ever do you no I have copies of all wjo from feb 2009
to feb 2010 I made copies of yourS ray pat randy smart ant I
go tell everyone youre a plumber youre a labor just a scab you
will be out a job soon. I have a job.1

Schmidt testified that he did not recall sending O’Brien a
text at 8:06 a.m. earlier the same day, stating “Keep talking
your shit and see what I do.”
I credit Schmidt’s testimony that he did not send O’Brien the
“your days are over” text message at any time and discredit the
contrary testimony presented by Respondent for reasons stated
below. I would also note in this regard that in my initial deci-
sion I found Respondent’s witnesses to be generally incredible
when testifying as to reasons for which Schmidt was dis-
charged.
At the supplemental hearing, Respondent presented the tes-
timony of Joseph O’Brien. He testified that the text message,
“Your days are over starting tomorrow,” was sent to him in late
March or early April 2010. O’Brien was unable to specify the
date on which he received this text. He testified that he imme-
diately showed the text to Respondent’s employee, Mark Plada,
who was in the truck with him and then forwarded it to Chuck
Taffe, one of Respondent’s partners. O’Brien testified that on
May 6, Ted Taffe, Respondent’s other partner, asked him to
forward to him all the messages he had received from Schmidt,
Str. 37–38. O’Brien testified that he did so. There is no evi-
dence that O’Brien forwarded Ted Taffe any other text messag-
es on May 6. O’Brien did forward two others to Chuck Taffe at
10:24 and 10:27 a.m. on March 6, 2010, R-3, which he testified
were sent to him by Schmidt on February 19, 2010.
O’Brien’s testimony about these messages at the initial hear-
ing on August 30, 2010, appears at Tr. 250–256. O’Brien testi-
fied that he received between 5 and 10 text messages from
Schmidt, including the one stating that “your days are over
starting tomorrow.” O’Brien testified that he forwarded these
messages to Chuck or Ted Taffe. Respondent’s counsel asked
O’Brien, “Looking at the dates that’s on these, do you believe
the dates to be accurate?” O’Brien answered affirmatively, Tr.
252. He said nothing about forwarding the “your days are
over” text 4–6 weeks after he received it from Schmidt. More-
over, it is important to note that by the time of the supplemental
hearing in this case, Respondent knew that Schmidt was going
to be able to prove that he did not send O’Brien any text mes-
sages on May 6. This is so in part because I required Schmidt

1 This text is on 2 pp. of Exh. R-3, but is obviously one message, Tr.
105.
to provide a copy of the relevant phone records to Respondent
10 days prior to the supplemental hearing.
Mark Plada testified that he was in one of Respondent’s
trucks with O’Brien when O’Brien showed him this particular
text message. He could not recall the date of this event other
than it was “roughly a year and a half ago.” He further testified
that he advised O’Brien to go to the police. Plada did not testi-
fy that he saw O’Brien forward the text or that O’Brien told
him that he was forwarding the text message to anyone.
At the initial hearing, O’Brien did not mention that Plada
was with him when he received the text. In response to the
General Counsel’s question, Plada testified that he was driving
Respondent’s truck when O’Brien received this particular text,
Str. 43. At the initial hearing O’Brien testified that, after re-
ceiving this text, he was on his way to the police station to get a
restraining order, Tr. 256. However, he did not do so, Tr. 269.
Plada did not testify about driving to a police station after this
incident. I would also note that at the initial hearing O’Brien
also did not mention forwarding the “your days are over” text
to Chuck Taffe on the day that he received it.
Ted Taffe testified that he asked O’Brien to send him all the
texts that he had received on May 6, because O’Brien was very
upset. He said O’Brien sent the texts immediately. I would
note in discrediting this testimony that O’Brien did not testify
that this was a reason for him forwarding Ted Taffe the text on
May 6. Moreover, it is improbable that O’Brien was very upset
about a text message that had been sent 4–6 weeks earlier,
which he had not reported to the police.
Chuck Taffe did not testify at the supplemental hearing. At
the initial hearing he testified about receiving a number of text
messages from Schmidt. Chuck Taffe also testified that he
provided those texts to Respondent’s counsel, Tr. 396–397.
There are no texts sent directly by Schmidt to Chuck Taffe in
the record. However, R-3 includes two text messages printed
out by Chuck Taffe on March 6, 2010, which were sent to him
by Joseph O’Brien, not Schmidt. However, there is no print out
by Chuck Taffe of the “your days are over” text.
At the initial hearing, the General Counsel asked Chuck
Taffe if he responded to any texts from Schmidt. He answered
affirmatively and then testified as follows at Tr. 411:

Well, when Joe O’Brien forwarded me his text, what Mike
said that, gosh, doctor shit, see what I’ll do, or something like
that. I texted Mike, please don’t contact my employees. And
he texted me something back along the lines, like I didn’t con-
tact him. He contacted me first.

That Chuck Taffe did not testify about receiving the “your
days are over” text or receiving an email from O’Brien for-
warding a text so threatening that O’Brien was on his way to a
police station are further indications that he never received such
a text from O’Brien.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(3) and (1) by terminat-
ing Michael Schmidt’s employment on February 6, 2010.
2. Respondent violated Section 8(a)(1) of the Act by telling
Michael Schmidt that because he filed or intended to file a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2036
charge with the NLRB that it would elicit testimony from its
clients disparaging his work.
3. Respondent violated Section 8(a)(1) of the Act by telling
Schmidt he was not part of Respondent’s family because he had
complained to the Union that Respondent was not complying
with the terms of its collective-bargaining agreement.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged Michael
Schmidt, it must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a quar-
terly basis from the date of discharge to the date of proper offer
of reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest com-
pounded daily, Kentucky River Medical Center, 356 NLRB 6
(2010), as computed in New Horizons, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, CF Taffe Plumbing Co., Inc., Chicago, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for engaging in activity reasonably perceived to be the
enforcement of a right contained in a collective-bargaining
agreement.
(b) Telling any employee that because he or she filed or in-
tended to file a charge with the NLRB that it would elicit testi-
mony from its clients disparaging his or her work.
(c) Telling an employee that he or she was not part of Re-
spondent’s family because he or she had complained to the
Union that Respondent was not abiding by its collective-
bargaining agreement with the Union.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them 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 from the date of the Board’s Order, offer
Michael Schmidt full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Michael Schmidt whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him as specified in the remedy portion of this decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to Michael Schmidt’s unlaw-

2 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 pur-
poses.
ful discharge/lay-off and within 3 days thereafter notify him in
writing that this has been done and that his discharge will not
be used against him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional 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 rec-
ords, 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
Chicago, Illinois facility copies of the attached notice marked
“Appendix.”3 Copies of the notice, on forms provided by the
Regional Director for Region 13, after being signed by the Re-
spondent’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 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 employ-
ees employed by the Respondent at any time since February 6,
2010. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means.
(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.
APPENDIX A
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection

3 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-
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.”
CF TAFFE PLUMBING CO. 2037
Choose not to engage in any of these protected activi-
ties

WE WILL NOT discharge or otherwise discriminate against
any of you for attempting to enforce a reasonably perceived
violation of the rights accorded to you in a collective-
bargaining agreement.
WE WILL NOT tell any employee that because he or she filed
or intended to file a charge with the NLRB that we will elicit
testimony from our clients disparaging his or her work.
WE WILL NOT tell any employee that they are not part of our
family because he or she complained to the Union that we are
not complying with the terms of our collective-bargaining
agreement.
WE WILL NOT in any like or related manner interfere with, re-
strain, 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
Michael Schmidt full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Michael Schmidt whole for any loss of earn-
ings and other benefits resulting from his discharge and other
discrimination, less any net interim earnings, plus interest com-
pounded daily.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Mi-
chael Schmidt and WE WILL, within 3 days thereafter, notify
him in writing that this has been done and that the discharge
will not be used against him in any way.
CF TAFFE PLUMBING CO., INC.
APPENDIX B
The initial decision (without superseded Conclusions of Law,
Order and Notice)
Sylvia L. Taylor, Esq., for the General Counsel.
Daniel M. Purdom and Brian R. Zeeck, Esqs. (Hinshaw & Cul-
bertson, LLP), of Lisle, Illinois, for the Respondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Chicago, Illinois, on August 30 and 31, 2010. Mi-
chael Schmidt filed the initial charge in this matter on March 8,
2010, and the General Counsel issued a complaint on May 18,
2010.
The complaint alleges that Respondent laid off the Charging
Party, Michael Schmidt, on February 6, 2010, and then dis-
charged him on February 9, 2010, in violation of Section
8(a)(3) and (1) of the Act. The complaint also alleges that Re-
spondent, by Chief Executive Officer Charles Taffe, violated
Section 8(a)(1) on February 9, by threatening Schmidt that he
would fabricate customer complaints if he did not withdraw his
unfair labor practice charge and by telling him that he is not
family because he “narced” Respondent out to the Union.
On the entire record,4 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is a plumbing contractor in
Chicago, Illinois, where it annually performs services valued in
excess of $50,000 for various enterprises located in Illinois
where such enterprises are directly engaged in interstate com-
merce. The 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 the Union, Chicago Journeyman
Plumbers’ Local Union No. 130, U.A., is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent is a family owned and operated plumbing busi-
ness, which has been a signatory contractor with Chicago Jour-
neyman Plumbers’ Local Union No. 130, U.A. for years. In
2004, Edward “Ted” Taffe and Charles Taffe, who were jour-
neymen in Local 130, took over the management of Respond-
ent upon the death of their father. They have had a long-
standing harmonious relationship with the Union. Respond-
ent’s work has consisted mainly of the maintenance of plumb-
ing fixtures and piping in commercial and residential buildings.
In 2005, Respondent hired the charging party, Michael
Schmidt, as a plumber. Although the manner in which Schmidt
performed his job is an issue in this case, co-owner Charles
Taffe admitted that Schmidt was excellent at pipe work, Tr.
401. There is no documentation that Respondent ever disci-
plined or even reprimanded Schmidt.
Laborer Joe O’Brien, who often worked with Schmidt, testi-
fied that Schmidt’s work ethic was good, but then in response
to a leading question, testified that Schmidt “cut corners” and
was often in a rush to leave a job before it was adequately
cleaned up, Tr. 231. Plumber Kevin McGuire, testified that he
didn’t have a problem with Schmidt, but then testified generally
about customer complaints about Schmidt, Tr. 323. However,
McGuire was unable to think of any specific examples, Tr. 324,
330.
As early as January 2009, Michael Schmidt began complain-
ing to the Union, apparently anonymously at first, that Re-
spondent was violating its collective-bargaining agreement by
allowing laborers to do work that should be done by plumbers,
Tr. 141–143. Kevin Sherlock, a vice president of the Union,
who is also a field representative for the Union’s Pension and
Welfare Fund, took note of these complaints and filed them
away for consideration in the Fund’s next audit of Respondent
scheduled for December 2009.
In February 2009 Schmidt complained to Ted Taffe that he

4 The General Counsel’s unopposed motion to correct the transcript
is granted. The word “narced” (as in narcotics) was mistranscribed as
“knocked” at p. 9, LL. 21; p. 10, LL. 20, and p. 35, LL. 24. Also “po-
table” was mistranscribed as “probable” at p. 140, LL. 13. P. 339, LL.
23 should read “foreman scale,” rather than “plumbing scale.” P. 21,
LL. 19 should read “get the F out of here.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2038
was tired of being sent home without work because laborers
were doing plumbing work, Tr. 20–21. He demanded that Re-
spondent pay him for showing up at Respondent’s office for 2
hours and then being sent home. When Taffe refused, Schmidt
went to the union hall and spoke to Business Agent Jimmy
Coyne. Coyne told Schmidt to be smart and opined that
Schmidt did not want to lose his job.
Schmidt also spoke to Pat Shea, a union business agent,
about the laborers doing plumbing work.5 After Schmidt called
Shea, Chuck Taffe called Schmidt and asked if he called the
Union. Schmidt denied that he did so, Tr. 25.6
In mid-December 2009 and January 2010, Schmidt called
Sherlock between 6 to 12 times to inquire as to the progress of
the audit. He complained to Sherlock specifically about Re-
spondent’s laborers, particularly Pat and Ray Johnston, doing
plumbing work when plumbers were sent home without work,
Tr. 149. Thus, by December 2009, Sherlock knew that Schmidt
was the source of the complaints regarding Respondent’s con-
tractual violations. Although the auditors did not find any vio-
lations of the collective-bargaining agreement, as alleged by
Schmidt, it is clear that his allegations were at least to some
extent well-founded, Tr. 196–199, 267.
Friday, February 5, 2010
Michael Schmidt reported to Respondent’s shop at about
7:30 a.m. on Friday, February 5, 2010. He was not initially
given a job assignment. A laborer, Randy Gumkowski, was
given a job assignment, Tr. 26. Schmidt testified that Kevin
McGuire told him there might be some work later at 5000 East
End in Chicago. Schmidt testified that he stayed at the shop for
2-3 hours and then told McGuire to call if he received work for
him, but that he was going to the Union Hall to complain that
laborers were doing Respondent’s plumbing work.7 Schmidt
testified that McGuire never called him that day with a job
assignment.
McGuire testified and confirmed that Schmidt complained
about sitting around Respondent’s shop for 2 hours without a
job assignment on February 5. McGuire testified that shortly

5 Neither Coyne nor Shea testified in this hearing; thus Schmidt’s
testimony about his conversations with them is uncontradicted. More-
over, Kevin Sherlock testified that Shea told him that Schmidt had been
to the union hall to speak with Shea. I therefore credit Schmidt’s testi-
mony about his conversations with Coyne and Shea. Similarly, I credit
Schmidt’s uncontroverted testimony regarding his conversation with
Ted Taffe in February 2009, a year before Schmidt was terminated.
6 At Tr. 378 Chuck Taffe testified that he did not suspect Schmidt as
being the source of the union inquiries regarding the laborers perform-
ing plumbing work in February 2010. He did not contradict Schmidt’s
testimony about the telephone call in 2009.
Ted Taffe testified that Schmidt never complained to him that labor-
ers were doing work that should have been done by plumbers. He
further stated that it never occurred to him that Schmidt might be an
anonymous complainer about this kind of thing, Tr. 463. I discredit
this testimony. Ted Taffe did not specifically address Schmidt’s testi-
mony regarding their alleged conversation in February 2009; I therefore
credit that testimony.
7 Schmidt testified that he met with Kevin Sherlock at the union hall
on February 5. Sherlock denies this. I deem it unnecessary to resolve
the conflict in their testimony.
after Schmidt left the shop, work materialized and that he called
Schmidt and that Schmidt “blew it off.” He was not sure
whether this job was the same job that he had told Schmidt
might materialize before Schmidt left the shop.
Ted Taffe, one Respondent’s co-owners, testified that the
chief engineer of a residential building at 5000 East End in
Chicago called him on the morning of February 5, and in-
formed him that a leaking toilet that Schmidt had worked on the
previous day was still leaking. Taffe testified further that the
building engineer told him that he had to wait for the resident to
let him into the apartment. Taffe testified that he told Kevin
McGuire to take Schmidt to the job. Later, according to Taffe,
McGuire called him to say that Schmidt had left the shop an-
gry. Taffe also testified that his office manager, Barbara Olsen,
informed him that Schmidt would not answer her calls to get
him to go to the 5000 East End job.
I discredit Taffe’s and McGuire’s testimony. For one thing,
in its position statement of March 31, 2010, (GC Exh. 3), Re-
spondent did not claim, when recounting the events of February
5, that there was work available for Schmidt that he declined or
did not perform because he would not take Respondent’s calls.
Moreover, I find Schmidt’s testimony that McGuire never
called him more credible than McGuire’s account. I find it
implausible that Schmidt would refuse a job so quickly after
waiting 2 hours for an assignment. I also decline to credit
McGuire’s testimony on any material issue in this case due to
his apparent lack of candor with regard to his present status
with Respondent. Although McGuire testified that he is cur-
rently a plumbing foreman for Respondent, the company’s
payroll records indicate that he has not worked for Taffe since
May 2010, Tr. 321, 428, Exh. R-7. I infer that if McGuire was
hiding the fact that he is no longer employed by Respondent,
this may have influenced his testimony in this matter.
Respondent does not have a policy or workrule regarding
how long an employee must wait at the shop for an assignment,
Tr. 410. In February 2010, it did not have a policy as to how
long an employee must remain on call if the employee does not
have a work assignment. It does not pay its employees for the
time spent at the shop waiting for an assignment. In response
to a leading question from Respondent’s counsel, Kevin
McGuire testified that he made it clear to Schmidt that he want-
ed him to be available for an assignment on February 5, when
Schmidt told him he was leaving, Tr. 345. I do not credit this
testimony.
Saturday, February 6, 2010
On Saturday, February 6, 2010, before noon, Kevin Sherlock
called Chuck Taffe, Tr. 377. Chuck Taffe told Sherlock that
his office manager, Barbara Olsen, had told him that the Union
was looking for more information regarding Respondent’s use
of its laborers.8 Sherlock discussed the Union’s audit and men-
tioned that the Union had received a complaint that Respondent
was using its laborers to do plumber’s work in violation of the
collective-bargaining agreement, Tr. 150–151, 377. Sherlock

8 Sherlock had tried to reach Chuck Taffe on Friday and spoke to
Respondent’s office manager, Barbara Olsen, on that date. Sherlock
testified that he was responding to a voice mail message from Taffe.
CF TAFFE PLUMBING CO. 2039
testified that he did not identify the complainant.
Taffe testified he didn’t suspect Schmidt. However, I dis-
credit this testimony and to the contrary infer that Taffe in-
ferred or in fact already knew that Schmidt was the person
complaining to the Union. He gave no reason for his self-
serving testimony that he suspected a different plumber. More-
over, Schmidt had been very open at the shop about his anger
over this issue.9
At 5:21 p.m. on Saturday, February 6, 2010, after Chuck
Taffe had spoken to Sherlock, Ted Taffe called Schmidt and
left the following voice mail message:

Hi Mike, it’s Ted

I was at the shop today and there is absolutely nothing
on the board for next week.

Don’t even bother coming in.

I don’t know things are just shitty.

If you want to call the Union and sign up for unem-
ployment, that [is] up to you, but I’m just making calls
right now to everyone.

The Union is giving me hassles on other stuff; it
doesn’t regard you, but I’m just going to be very slow for
a while. I’ll talk to you later.

GC Exh. 4.10
There would be no reason for Ted Taffe to mention “union
hassles” to Schmidt apart from the fact that Taffe knew that
Schmidt was the source of some of these problems.
After receiving this call, Schmidt called Ray Johnston, a la-
borer who has worked for Respondent for 22 years and who
sometimes distributes job assignments to other employees.
Schmidt asked Johnston if any other employees had received a
call from Respondent informing them that there was no work.
Johnston told Schmidt that nobody else had received such a
call. Then Schmidt told Johnston that if he was being sent home
because Respondent’s laborers were doing plumbing work he
was going to file a grievance and go to the National Labor As-
sociation [sic].11 He told Johnston that there was no way he
was going to sit at home while the laborers did his work.
Monday, February 8, 2010
Michael Schmidt went to the union hall at about between 7

9 While Respondent’s witnesses testified that Schmidt was angry and
stormed out the shop on February 5, they did not confirm that he was
upset about laborers getting work before he did. I find that his com-
plaints were in fact about this issue. Laborer Joe O’Brien was assigned
a job that day with another plumber while Schmidt waited for an as-
signment, Tr. 243. O’Brien’s testimony and that of Ray Johnston at Tr.
212 also suggests that other laborers were also given work assignments
on February 5, while Schmidt was at the shop.
10 From Ted Taffe’s complaint about the union hassles, I find that
Chuck Taffe talked to Sherlock before Ted called Schmidt.
11 I credit Schmidt’s testimony that he initially called Johnston to de-
termine whether anyone else had been told not to come in the following
week. His testimony is far more plausible than Johnston’s testimony
that Schmidt called him out of the blue to tell him he was filing a griev-
ance because the laborers were doing his work.
Schmidt did not file a charge with the Board until March 8, 2010.
and 7:30 on the morning of February 8 and talked to Kevin
Sherlock about filing a grievance over his lay-off. He did not
file such a grievance until April. Afterwards, Sherlock called
Chuck Taffe and told him that Schmidt wanted to file a griev-
ance over Respondent’s use of laborers to do plumbers’ work,
Tr. 156. Taffe called Schmidt at about 9 a.m. and suggested
they meet at a Denny’s restaurant the next day, Tr. 33–34, 388.
Tuesday, February 9
Schmidt and Chuck Taffe met at a Denny’s restaurant on the
morning of February 9, Tr. 35, 388–391. Schmidt’s account of
their conversation is as follows:

A. Well, we both went in there and I sat down and he
started talking. And he said I always considered us to be a
family shop and I can tell you, you're not part of the fami-
ly because you knocked12 me out to the union. He also,
and then I said to him if this is such a family shop, why
would you send a licensed plumber home and have a non-
licensed person do plumbing work? I go [sic] no family
member would treat their family in that way. And basical-
ly he said, well, I'm here to try to make things right be-
tween us, and basically after that I told him that I already
filed a charge yesterday with the National Labor Associa-
tion.
And then Chuck Taffe said, well, and then he said,
well, that's something else, we shouldn't be even talking
then. And I said no, I can always drop the charge. And he
said, well, how about I offer you two 40-hour checks or
three 30-hour checks for severance if you drop the charge?
Q. Okay. Did you respond to that?
A. I didn't respond to it right away. And he goes, and
if you don't drop the charge, I'm going to have my engi-
neer buddies come up with letters about your work ability
and that you're not allowed in the buildings, you know,
that you've screwed up jobs basically, that I wasn't allowed
in the buildings anymore.

Tr. 35–36.
Chuck Taffe testified that he asked Schmidt to air his griev-
ances. Schmidt then compared each one of Respondent’s
plumbers to himself unfavorably. Taffe testified that then he
told Schmidt that Respondent’s customers did not want him to
work at their facilities, particularly at 900 N. Michigan Avenue,
where Schmidt had been involved with a massive water leak
from a pipe only a week or so previously.
Taffe testified he then offered Schmidt several weeks of sev-
erance pay. He denied threatening to fabricate complaints from
customers or anything similar as alleged in complaint para-
graph V(a). I credit the essence of Schmidt’s account of this
conversation. I am persuaded by the testimony elicited by Re-
spondent at trial that upon learning that Schmidt filed or in-
tended to file a charge with the Board that it made a concerted
effort to disparage his performance as its employee. Moreover,
as discussed below, I find that at least some of this testimony is
false. I therefore conclude that Respondent in fact told Schmidt

12 Schmidt said “narced” (as in narcotics), rather than “knocked,” see
fn. 1.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2040
that since he filed or was going to file a charge he was no long-
er a part of Respondent’s family and that it intended to look for
evidence with which to disparage him.
By threatening Schmidt with retaliation for his invocation of
the Board’s processes, Respondent violated Section 8(a)(1) as
alleged, Norris Concrete Materials, 282 NLRB 289 (1986).
Respondent also violated Section 8(a)(1) in equating Schmidt’s
attempt to enforce the collective-bargaining agreement with
disloyalty to Respondent by telling him he was no longer part
of Respondent’s family, Hialeah Hospital, 343 NLRB 391
(2004).
Schmidt’s account does not make complete sense in that he
had not filed a charge with the NLRB as of February 9. How-
ever, I find that Taffe did tell Schmidt that if there was any sort
of proceeding regarding the circumstances of Schmidt’s dis-
charge that he would elicit testimony from customers denigrat-
ing Schmidt’s job performance.
I make this determination because the reasons advanced by
Respondent for laying-off or terminating Schmidt are pretextu-
al. It is clear that he was laid off or fired in retaliation for his
complaints to the Union about Respondent’s use of laborers to
do plumbing work. Moreover, the testimony Respondent elic-
ited from a number of its clients, employees and former em-
ployees regarding Schmidt is not credible.
Respondent violated Section 8(a)(3) and (1) in terminating
Michael Schmidt’s employment
In order to establish a violation of Section 8(a)(3) and (1),
the Board generally requires the General Counsel to make an
initial showing sufficient to support an inference that the al-
leged discriminatee’s protected conduct was a ‘motivating fac-
tor’ in the employer’s decision. Then the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of protected conduct, Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 889 (lst Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393, 399–403 (1983);
American Gardens Management Co., 338 NLRB 644 ( 2002).
The General Counsel met his initial burden; Respondent did
not establish that it would have terminated Schmidt’s employ-
ment absent his complaints to the Union
Michael Schmidt engaged in activity protected by Section 7
of the Act in complaining to the Union about Respondent’s use
of its laborers to perform work that should have been done by
plumbers pursuant to its collective-bargaining agreement with
Local 130.
As the Board stated in Tillford Contractors, 317 NLRB 68
(1995):

When an employee makes an attempt to enforce a collective
bargaining agreement, he is acting in the interest of all em-
ployees covered by the contract. It has long been held that
such activity is concerted and protected under the Act, Inter-
boro Contractors, 157 NLRB 1295 (1966). An employee
making such a complaint need not specifically refer to the col-
lective-bargaining agreement. As long as the nature of the
complaint is reasonably clear to the person to whom it is
communicated, and the complaint does, in fact, refer to a rea-
sonably perceived violation of the collective bargaining
agreement, the complaining employee is engaged in the pro-
cess of enforcing that agreement. Bechtel Power Corp., 277
NLRB 882, 884 (1985); Roadway Express, 217 NLRB 278,
279 (1975); NLRB v. City Disposal Systems, 465 U.S. 822,
840 (1984).

I also find that Respondent knew that Michael Schmidt was
complaining to the Union about its use of laborers to do plumb-
ing work prior to Ted Taffe’s call to Schmidt on the evening of
February 6. Assuming that nobody at the Union had identified
Schmidt as the source of the complaints, which I deem highly
unlikely, I find that Respondent inferred that he was the com-
plainant from Schmidt’s constant complaints about this issue in
the shop and his February 2009 conversation with Ted Taffe.
I infer animus and discriminatory motivation from the timing
of Schmidt’s lay-off and discharge, coming within hours of
Chuck Taffe’s conversation with Kevin Sherlock and Schmidt’s
complaints at the shop on February 5. I also infer animus and a
causal relationship between Schmidt’s complaints and the end
of his employment from Ted Taffe’s reaction to his complaint
in February 2009, and Respondent’s pretextual reasons for his
discharge.
Timing
The timing of Schmidt’s termination supports a finding of a
casual relationship with his complaints to the Union. Respond-
ent’s work had decreased markedly in the year prior to the ter-
mination. At any point during the year, Respondent could have
laid Schmidt off given the alleged limitations on projects to
which he could be sent. If he was in fact responsible for the
flood at the John Hancock Center, Respondent could have fired
him immediately. However, the one event that clearly precipi-
tated Schmidt’s termination was the conversation between
Charles Taffe and Kevin Sherlock several hours prior to Ted
Taffe’s call to Schmidt on February 6. I find Respondent’s
testimony that it was planning to lay-off Schmidt prior to Feb-
ruary 5, to be incredible.13
Pretext
Respondent contends that it laid Schmidt off due to poor
economic conditions and because he was the most expendable
plumber in its work force. Respondent submits that work was

13 The Taffes testified that they planned to lay-off four employees,
three laborers and Schmidt, but delayed laying off the laborers due to a
telephone conversation between Charles Taffe and Ray Johnston, the
brother of one of the laborers laid off a month later. Johnston called
Charles Taffe to tell him that Schmidt called him and said he was going
to get both Johnston brothers fired.
I find this testimony incredible. If Johnston was upset when he
called Taffe, one would expect Taffe to explain the economic necessity
of the lay-off and to advise Ray Johnston to ignore the rest of
Schmidt’s phone call. Indeed, one would expect Respondent to pro-
ceed with the lay-off of the other three employees in order to minimize
the chances that they would be accused of laying off Schmidt discrimi-
natorily.
Finally, it has not been established that the lay-off of other employ-
ees in March was due to economic conditions, as opposed to, for exam-
ple, pressure from the Union to abide by the terms of the collective-
bargaining agreement.
CF TAFFE PLUMBING CO. 2041
slow and that many of its customers would not allow Schmidt
on its jobsite. However, this contention is inconsistent with its
repeated assertion that just prior to his termination, Schmidt
had more hours of work than any other plumber, Tr. 176, 378.
Moreover, this assertion is not supported by Respondent’s re-
ports to the plumbers union of the hours worked by its plumb-
ers, (GC Exh. 2).
Evidence supporting Respondent’s contention that many of its
customers would not allow Michael Schmidt to work
on their sites
Respondent concedes that during Michael Schmidt’s em-
ployment it never informed him that any of its customers re-
quested or demanded that he not be sent to their facilities, Tr.
390, 403. However, at the hearing in this matter, Respondent
presented three customer witnesses to so testify. The Taffes
also testified about complaints they received from other cus-
tomers about Schmidt’s work. It is quite apparent that Re-
spondent sought to build a case against Schmidt after his termi-
nation and solicited some of these complaints.
Respondent was Hylan-Nolan Contractors’ subcontractor at
Palevsky Hall at the University of Chicago in mid to late 2009.
The Palevsky Hall project involved the renovation of showers
to comply with the Americans with Disability Act. Although
the University allowed work to begin at 8, the contractors were
not allowed to make loud noises until 9 since the Hall was par-
tially occupied.
Jim Nolan, a vice president of Hylan-Nolan, testified that
Schmidt refused to comply with the 9 a.m. rule. Nolan also
testified that Chris Keating, the Director of Residence Halls at
the University called him several times and on at least one oc-
casion threatened to remove Hylan-Nolan from the job if
Hylan-Nolan did not comply with the University’s noise re-
strictions, Tr. 308–309, 312.
Nolan testified that he received 7 or 8 complaints from his
foreman that Schmidt would not comply with the noise re-
strictions. However, Nolan never discussed these complaints
with Schmidt despite the fact that he discussed other matters
with him, Tr. 311. Nolan also could not recall contacting Re-
spondent about Schmidt, but then testified that he asked Ted
Taffe not to send Schmidt to this worksite on three occasions,
beginning in November 2009.
Ted Taffe testified that he talked to Jerry (or Terry) Nolan,
not Jim Nolan, who testified in this proceeding. Ted Taffe
testified that Jerry Nolan told him that he didn’t want Schmidt
on any of his jobs and that Ted removed him from the Palevsky
Hall project on about January 21, 2010 Tr. 441–442. I do not
find this testimony credible.
First of all, Jim Nolan testified that his company’s last day
on the Palevsky Hall project was January 2, 2010, Tr. 306.
Thus, Ted Taffe did not remove Schmidt from this project as he
claimed. Moreover, Nolan’s testimony is completely incredi-
ble. It defies credulity to believe that the University of Chica-
go, one of Hylan-Nolan best customers (Tr. 309), was threaten-
ing to throw Hylan-Nolan off the Palevsky Hall project because
of Schmidt’s noncompliance and Nolan neither addressed these
complaints to Schmidt nor to Respondent.
Moreover, if Hylan-Nolan requested a different plumber,
there should have been no reason for Respondent not to replace
Schmidt since it claims that work during this period was very
slow.14 I credit Schmidt’s testimony that he made noise on the
Palevsky project once and that he was never replaced on that
project by Respondent. I would also note that in discussing
Schmidt’s behavior at Palevsky Hall in its March 31, 2010
position statement, Respondent did not claim that he failed to
comply with the University’s noise restrictions.
Mindy Carlson, the on-site manager at Jackson Towers Con-
dominium, testified that in about 2006 or 2007, Schmidt left a
55 gallon drum and drop cloths in a residential unit. Carlson
called Barb Olsen, Respondent’s office manager, and asked that
Schmidt not be sent back to Jackson Towers. Schmidt appar-
ently did not work at Jackson Towers after this incident but
there is no evidence that this was the result of Carlson’s com-
plaint. There is no evidence that Respondent reprimanded
Schmidt for his work at Jackson Towers.
Brian Stuchly is a superintendent/carpenter, staffed by his
employer, Alternative Construction Solutions, at the John Han-
cock Building in Chicago. He was called as a witness by Re-
spondent and testified to two occasions on which he was un-
happy with work performed by Michael Schmidt for Respond-
ent. These events occurred 2–3 years prior to the hearing in
this matter (2007 or 2008). Stuchly testified that he asked
Chuck Taffe not to send Schmidt back to work on one of his
projects. However, he also testified that on the approximately
four occasions his employer has used Respondent since 2008,
he specifically requested that Respondent send Mark Plada,
another of Respondent’s plumbers, who is his neighbor and
personal friend. Mark Plada may be stationed by Respondent at
the Hancock building on a permanent or semi-permanent basis,
Tr. 492.
I find that neither Carlson’s nor Stuchly’s testimony estab-
lishes Respondent’s contention that Schmidt’s work history
materially limited the jobsites to which it could send him.
Other evidence of Schmidt’s alleged poor perfor-
mance/errors/misconduct prior to termination
At hearing Respondent introduced evidence of mistakes,
misconduct and poor performance on the part of Schmidt dur-
ing the 5 years that he worked for it. Respondent contends that
it was unaware of the some of these incidents prior to his ter-
mination.
Joe O’Brien testified that Schmidt lied to Respondent about
the circumstances under which his company vehicle was bro-
ken into in 2007 or 2008. O’Brien did not tell Respondent that
Schmidt was working for himself on this occasion until after
Respondent terminated Schmidt. Schmidt denied O’Brien’s
version of this event and I need not determine which is the
truth. However, the circumstances under which Respondent
learned of O’Brien’s account leads me to conclude that Re-
spondent made a concerted effort to find damaging information
about Schmidt in order to discredit him. Given this effort, I

14 To the extent that Nolan suggests that Respondent replaced
Schmidt, Tr. 316–317, I discredit his testimony. I would also note that
Joe O’Brien, a witness also called by Respondent, to disparage
Schmidt, said nothing about Schmidt’s conduct at the University of
Chicago. O’Brien was also on this project, Tr. 316.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2042
find it more likely than not that on February 9, at Denny’s,
Chuck Taffe threatened to gather such information for this pur-
pose if Schmidt pursued a grievance, filed a charge or took any
other affirmative action against Respondent.
Respondent elicited information regarding a job on which an
elevator shorted out at 134 N. LaSalle St. in about 2005. While
Respondent now says this occurred due to mistakes by
Schmidt, I find this has not been established.
A week to 10 days prior to Schmidt’s termination, he cut into
a pipe at 900 N. Michigan Avenue. The water was not turned
off and there was a flood. Schmidt blames this event on the
building engineers at the site. I find the record does not estab-
lish that the flood was Schmidt’s fault. Joe O’Brien, who was
working with Schmidt, testified that both he and Schmidt be-
lieved the water was off. O’Brien cut into the pipe as well.
Somewhere between 1–3 years prior to Schmidt’s termina-
tion, there was a problem between him and a man who operated
a newsstand at a jobsite at 200 S. Michigan Avenue. Joe
O’Brien testified that Schmidt was ripping dollar bills in half
and not paying for a newspaper and soda.15 Ted Taffe, on the
other hand, testified that Schmidt was making fun of the man’s
accent and that he removed him from the job. Given the dis-
crepancy between these accounts, I credit neither. I don’t nec-
essarily credit Schmidt’s account of the incident either.
Respondent also accuses Schmidt of stealing tools that be-
long to it and were kept in his company truck. Joe O’Brien did
an inventory of these tools after the truck had been sitting on
the street in front of Chuck Taffe’s house for 2 weeks. Assum-
ing that tools were missing, one cannot assume Schmidt took
them when the vehicle had been sitting on a public street for
this period of time. Respondent’s assertion in this respect gives
further credence to Schmidt’s testimony that Chuck Taffe
threatened to build a case against him on February 9.
Schmidt’s posttermination conduct
After Schmidt was terminated he called several of Respond-
ent’s customers. He told some of Respondent’s customers that
Taffe was using unlicensed plumbers. Schmidt sent text mes-
sages to one of the Taffe brothers calling him a “retard” and a
fraud. In one of these messages, Schmidt accused Taffe of
cheating his customers.
Schmidt also sent a number of text messages to Respond-
ent’s laborer, Joe O’Brien, with whom he had often worked. A
text sent February 19, stated, “Keep talking your shit and see
what I do.” On May 6, Schmidt sent O’Brien a text which read,
“Your days are over starting tomorrow.”16
The effect of Schmidt’s post-termination conduct on his
entitlement to reinstatement and backpay
The Board’s usual remedy for a discriminatory termination is
reinstatement and backpay. It is well established that, if an
employer claims a discriminatee is not entitled to instatement or

15 O’Brien said this occurred 1–1-1/2 years ago at Tr. 235–236, but
testified that it happened 2–3 years ago at Tr. 273.
16 Respondent introduced four text messages which O’Brien for-
warded to the Taffes. Schmidt admitted to sending some of these, but
not the others. All of these messages were sent from the same number,
thus I find that Schmidt sent them all.
reinstatement and full backpay, it is the employer’s burden to
prove that the discriminatee engaged in misconduct for which
the employer would have disqualified any employee from con-
tinued or future employment. See Marshall Durbin Poultry Co.,
310 NLRB 68, 69–70 (1993), enfd. in pertinent part 39 F.3d
1312 (5th Cir. 1994). Generally, the employer must “establish
that the discriminatee’s conduct would have provided grounds
for termination based on a preexisting lawfully applied compa-
ny policy and any ambiguities will be resolved against the em-
ployer.” John Cuneo, Inc., 298 NLRB 856, 857 fn. 7 (1990).
The Board will not, as a general rule, infer or assume that an
employer would have disqualified an individual based on the
nature of his misconduct. John Cuneo, supra at 857 fn. 7.
While there is no evidence that Respondent had a preexisting
policy regarding conduct such as Michael Schmidt’s May 6 text
message, I conclude that this message, which on its face ap-
pears to threaten physical violence, is the type of conduct for
which any employer would discharge an employee. I am una-
ware of any case in which the Board has denied reinstatement
or tolled backpay in the precise context presented by the instant
case. However, I believe the Board’s decision in Lear-Siegler
Management Service, 306 NLRB 393 (1992), logically man-
dates such a result.
In Lear-Siegler, the Board denied reinstatement and tolled
backpay because the discriminatee threatened a potential wit-
ness that he would report a violation of the potential witnesses’
probation. The decision is predicated on the integrity of the
Board’s processes, something that is not necessarily an issue in
this case. However, I deem Schmidt’s May 6 text message to
be more egregious than the one relied upon by the Board in
Lear-Siegler. Schmidt’s message appears to threaten physical
violence which the discriminatee’s statement in Lear-Siegler
did not. Thus, I conclude that Respondent is not required to
reinstate Michael Schmidt and that its liability for backpay
ended on May 6, when employee Joe O’Brien forwarded the
text message to Respondent.
I do not find that Respondent’s liability for backpay termi-
nated earlier than May 6. Schmidt’s telephone calls to other
employees which related to their employment were protected. I
view them as essentially statements informing coworkers that
Schmidt intended to insure that collective-bargaining agree-
ment would be enforced, that only plumbers would do plumb-
ing work and that, as a result, some coworkers might lose their
jobs.
Finally, I do not find that Respondent’s liability for backpay
terminated on March 6 (as opposed to May 6), when O’Brien
forwarded three text messages to Respondent that he had re-
ceived on February 19. First of all, the context in which these
messages were sent is unclear. O’Brien was clearly assisting
Respondent in its efforts to get rid of Schmidt by, for example,
doing an inventory of Schmidt’s truck 2 weeks after Schmidt
had returned it. Moreover, the fact that O’Brien waited 2
weeks to forward these messages to Respondent indicates that
he did not regard them as a physical threat. Without knowing
the context in which the texts were sent it is impossible to de-
termine whether they were threatening from an objective stand-
point.
CF TAFFE PLUMBING CO. 2043
Allegedly Disloyal Statements
Employee appeals concerning working conditions made to
parties outside the immediate employer-employee relationship
may be protected by the Act. However such communications
are not protected without limit, and will lose the protection of
the Act, if maliciously false, i.e., statements made with
knowledge of their falsity or with reckless disregard for their
truth or falsity. Such communications may also lose protection
where they constitute a public disparagement of the employer’s
product or undermining of its reputation, TNT Logistics North
America, Inc., 347 NLRB 568, 569 (2006).
Respondent presented the testimony of Allen Cain, the on-
site property manager for Sadler Property Management at the
John Hancock Center. Cain testified that sometime between
February and April 2010, Schmidt called him and told him that
Respondent used substandard materials, that its employees
were nonunion and that Taffe was overcharging Cain. Cain
also testified that Schmidt disparaged the quality of Respond-
ent’s work.
Schmidt denied that he told Cain that Respondent did sub-
standard work. He testified that he only told Cain that Re-
spondent was not sending licensed plumbers to his building and
was billing its employees as plumbers. I credit Schmidt over
Cain on account of the exaggerated and false testimony elicited
by Respondent from Nolan. Moreover, I conclude that Schmidt
did not lose the protection of the Act by his statements to Cain
because it has not been established on this record that they were
false.
Alleged Witness Intimidation
Respondent also contends that Schmidt tried to intimidate
witnesses Nolan and Sherlock by threatening to sue them if
they testified. Schmidt denies that he ever spoke to Nolan and
testified that he threatened to report Sherlock to the Department
of Labor. While I do not necessarily credit Schmidt’s testimo-
ny, I do not credit that of Nolan or Sherlock either. I have al-
ready explained my reservations regarding Nolan’s credibility.
With regard to Sherlock, I believe he may have been less
than completely candid about mentioning Schmidt’s name to
Taffe in his telephone conversation of February 6. Sherlock
also struck me as being too eager generally to lend support to
Respondent’s position. One example of this was his testimony
about Respondent’s surprise when confronted with the fact that
it was not strictly complying with the terms of the collective-
bargaining agreement, e.g. Tr. 199. I find that it has not been
established that Schmidt engaged in witness intimidation that
would forfeit the protection of the Act.