Jeff MacTaggart Masonry, LLC d/b/a JM2

National Labor Relations Board - Administrative Judge Opinions

May 6, 2015

14-CA-138748 (N.L.R.B. May. 6, 2015)

JD–26–15
Omaha, NE
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
JEFF MACTAGGERT MASONRY, LLC,
d/b/a JM2
and Cases 14-CA-138748
14-CA-143817
18-CA-135993
INTERNATIONAL UNION OF BRICKLAYERS
AND ALLIED CRAFTWORKERS LOCAL 15
MO-KS-NE
and
INTERNATIONAL UNION OF BRICKLAYERS
AND ALLIED CRAFTWORKERS LOCAL 3
IOWA
William F. LeMaster and Lauren M. Fletcher, Esqs.
for the General Counsel.
Kelly R. Baier, Esq. (Bradley & Riley, PC), Cedar Rapids, Iowa
for the Respondent.
Bruce C. Jackson, Jr (Arnold, Newbold, Winter & Jackson, P.C.)
Kansas City, Missouri,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
Arthur J. Amchan, Administrative Law Judge. This case was tried in Omaha, Nebraska
and Council Bluffs, Iowa on March 17-19, 2015. Bricklayers Local 15 filed charges 14-CA-
138748 and 143817 on October 15, 2014 and January 5, 2015 respectively. Bricklayers Local 3
filed the charge in 18-CA-135993 on September 4, 2014. The General Counsel issued a
consolidated complaint and notice of hearing on January 27, 2015.
This is what is commonly referred to as a salting case.1 The General Counsel alleges that
Respondent has refused to consider several union officials for employment, or hire them for open

1 Judge Posner in Hartman Brothers Heating and Air Conditioning, Inc. v. NLRB, 280 F. 3d 1110 (7th
Cir. 2002) noted that many employers suspect that the purpose of salting is not in fact to organize, but to
precipitate the commission of unfair labor practices by startled employers.
JD–26–15
2
positions for which they were qualified. The General Counsel further alleges that Respondent
did so because of these applicants’ association with the Unions and because they indicated
their intention to promote unionization of Respondent’s employees and to discourage its
employees from seeking union representation in violation of Section 8(a)(3) and (1) of the Act.
5
The General Counsel also alleges that Respondent discharged employee Marvin
Monge, a “covert” salt, from his job in Nebraska due to his union activities and discharged or
refused to hire Monge in Iowa for the same reasons. The General Counsel further alleges that
Respondent violated Section 8(a)(1) in implementing a number of rules and changing its
application procedure to discourage employees from engaging in union and or other protected 10
activities. Finally, the General Counsel alleges that Respondent, by foreman George Owen III,
violated Section 8(a)(1) by threatening employees with physical violence.
There are a number of cases under the Act that apply to salting cases and thus establish
the framework for considering the facts of this case. The most important of these cases are: 15
NLRB v. Town & Country Electric, Inc., in which the Supreme Court, noting the
considerable deference accorded to the Board’s interpretation of the Act, affirmed that
the Board could lawfully construe the Act’s definition of “employee” to include paid
union organizers. 516 U.S. 85, 94–95, 98 (1995).20
FES, 331 NLRB 9 (2000), supplemented 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d
Cir. 2002). In FES, Board held that:
To establish a discriminatory refusal to hire, the General Counsel must, under 25
the allocation of burdens set forth in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), first show
the following at the hearing on the merits: (1) that the respondent was hiring, or
had concrete plans to hire, at the time of the alleged unlawful conduct; (2) that
the applicants had experience or training relevant to the announced or generally 30
known requirements of the positions for hire, or in the alternative, that the
employer has not adhered uniformly to such requirements, or that the
requirements were themselves pretextual or were applied as a pretext for
discrimination; and (3) that antiunion animus contributed to the decision not to
hire the applicants. Once this is established, the burden will shift to the 35
respondent to show that it would not have hired the applicants even in
the absence of their union activity or affiliation.
The FES framework was modified by the Board in Toering Electric Co., 351 NLRB
225, 232-34 (2007). The Board found that in salting cases, the General Counsel bears the 40
ultimate burden of proving the applicant’s genuine interest in employment. This burden has
two components: 1) that there was an application for employment; and 2) that if the employer
contests the applicant’s actual interest employment, the General Counsel must prove by a
preponderance of the evidence that that the applicant was genuinely seeking to establish an
employment relationship with the employer.45
3
Another case which is not directly applicable to the proceeding on the merits before
me, but which obviously has great bearing on the litigation posture of this is case is Oil
Capitol and Sheet Metal, 349 NLRB 1348 (2007). In that case the Board held that the General
Counsel, as part of his existing burden of proving a reasonable gross backpay amount due,
must present affirmative evidence that the salt/discriminatee, if hired, would have worked for 5
the employer for the backpay period claimed in the General Counsel’s compliance
specification.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following10
FINDINGS OF FACT
I. JURISDICTION
15
Respondent, Jeff MacTaggert Masonry, d/b/a JM2, is a masonry contractor, which
does business in Nebraska and Iowa. It performed services valued in excess of $50,000 in
states other than Nebraska where its principal office is located, and purchased and received
goods valued in excess of $50,000 directly from points outside of Nebraska during the 12-
month period ending on November 30, 2014. Respondent admits, and I find, that it is an 20
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and
that the Unions, Bricklayers Locals 3 and 15 are labor organizations within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES25
Jeff MacTaggert established JM2 in 2012. Prior to that he worked for many years for
Seedorff Masonry, a contractor that is a signatory to collective bargaining agreements with at
least one Bricklayers local union. JM2 operates out of the same building in Omaha, Nebraska 30
as does Seedorff. Donna Smith, the receptionist at this building, who worked for Seedorff
until about 2011, services both Seedorff and JM2.2 MacTaggert hired a number of Seedorff
employees for JM2, who had been union members.
The Union salting campaign; Respondent hires Marvin Monge, a “covert” salt35
In early 2014, the Bricklayers Unions targeted JM2 and possibly other non-union
contractors for a salting campaign in the Omaha area. The Union(s) solicited Marvin Monge,
a member of Local 15 living in Kansas City to go to Omaha and apply for work. The Union
paid his expenses to do so.40
Monge went to JM2’s Omaha office and filled out an employment application on
March 31, 2014. He spoke to Scott Fangman, Respondent’s Nebraska superintendent. Monge
did not disclose his union affiliation. There was no discussion about how recently Monge had

2 Smith has worked for Select Construction Concepts since about 2011. She has worked in the
building that houses Seedorff and JM2 for about 14 years.
4
worked as a bricklayer and no discussion as how Monge came to look for work with
Respondent. There was also no discussion of any referral policy for applicants.
On April 6, Scott Fangman called Monge and told him to report to a JM2 jobsite in
Fremont, Nebraska, the next day. Monge worked at several locations for JM2 from April 7 to 5
August 9, 2014. Fangman, and at least one of Monge’s jobsite foremen, Ian Lindberg,
testified that Monge performed his job tasks well.
The Union “job actions” at Respondent’s office and jobsites
10
Sometime in July 2014, before July 14, the Union(s) began appearing adjacent to JM2
jobsites and outside Respondent’s Omaha office. The Union engaged in what it terms a “job
action.” It displayed a large inflatable cat or pig, banners and flyers contending that
Respondent jeopardized the wages, benefits and working conditions established by the Union.
The Union did not engage in picketing and gave no indication that it was seeking recognition 15
from Respondent.
Union organizers apply for work with Respondent
On about July 1, 2014, Union Organizer Jared Skaff went to a JM2 jobsite and 20
obtained a JM2 employment application from JM2 foreman Ian Lindberg.
Organizers Jared Skaff and Ray Lemke apply on July 14, 2014
On July 14, union organizers Jared Skaff, Ray Lemke3 and Francis Jacobberger went to 25
Respondent’s Omaha office. Skaff and Lemke approached the counter inside the main
entrance. Jacobberger sat in a chair against a wall about 10-15 feet from the counter. Donna
Smith, the receptionist, recognized Skaff from his prior employment with Seedorff Masonry.
Skaff and Lemke were wearing union paraphernalia. They asked for employment 30
applications, filled out the front side of the application, attached a résumé and submitted them.
At the bottom of each résumé was a statement indicating that the applicant intended to
organize JM2 bricklayers. This statement was highlighted on each résumé.
Skaff turned on a recording device and Jacobberger recorded the event with his cell 35
phone. This recording demonstrates that Donna Smith was not upset while the union
representatives were in Respondent’s office and continued to perform her job functions in a
normal fashion, G.C. Exh. 24.
Jeff MacTaggert came briefly to the counter from his office which was located down 40
the hall while Skaff and Lemke filled out their applications. He also briefly acknowledged
Skaff’s presence. MacTaggert was already aware that Skaff was a union bricklayer.
Afterwards, Donna Smith took the applications to Jeff MacTaggert.
45

3 Lemke is not alleged to be a discriminatee in this case.
5
Respondent hires “covert” salt Kirk Zabriskie on July 24
On or about July 23, 2014, William “Kirk” Zabriskie, a Local 15 member, who had
been recruited by the Union to salt Respondent, stopped by a JM2 jobsite at a hospital in 5
Fremont, Nebraska. Zabriskie first spoke to the jobsite foreman and then to JM2’s Nebraska
superintendent, Scott Fangman. Fangman met Zabriske at the Fremont jobsite on July 24.
Zabriskie, who is about 60 years old, told Fangman that he had years of experience as a
bricklayer. Fangman did not question Zabriskie’s physical ability to perform bricklayer’s 10
work and did not ask him how recent was his work experience. Zabriskie did not disclose his
relationship with the Union. Zabriskie filled out an employment application. Fangman hired
him on the spot. Respondent also hired a number of other bricklayers and laborers in July and
August 2014.
15
July 29, 2014, union organizers Francis Jacobberger and Ernest Adame apply for
work with Respondent
On July 29, union organizers Francis Jacobberger, Ernest Adame and Jacob Skaff went
to Respondent’s Omaha office. All three were wearing union paraphernalia. Nobody was at 20
the receptionist’s counter when they arrived. Jacobberger walked down a hallway and spoke
to an individual who summoned Donna Smith.
Jacobberger and Adame submitted the front of JM2 employment applications that they
had filled out in advance and résumés to Smith. These résumés contained a statement that the 25
applicants intended to organize Respondent’s bricklayers. That statement was also
highlighted.
Prior to July 29, Respondent routinely accepted applications filled out only on the
front. The back of the front of the application did not have any spaces to be completed by the 30
applicant. Other parts of the application package, such as the W-4 form were routinely
completed by employees after they were hired. Donna Smith did not tell the applicants that
their applications were insufficient or incomplete.4
Skaff, who entered the office somewhat after Jacobberger and Adame, sat in a chair 35
and may have made a recording with his cell phone. He did not approach the counter.
Smith told Jacobberger and Adame that she would pass their applications on and they
left. The video taken by Jacobberger with a pen-like recording device does not indicate that
Smith was in any way intimidated or upset by this event. The interaction between Jacobberger 40
and Smith lasted no more than about 30 seconds. Adame spoke hardly, if at all. It is not
apparent that Smith was even aware of Skaff’s presence. Respondent hired bricklayers and
laborers after July 29, 2014.

4 Smith may have told Jacobberger and Adame that Respondent was only taking applicants’ names
and telephone numbers. However she received the applications and gave them to Jeff MacTaggert.
6
Jacobberger followed up on his application by calling Superintendent Scott Fangman
on his cellphone in August. I credit Jacobberger’s testimony that Fangman told him he would
check on the status of the application. I also credit Jacobberger’s testimony that he made
subsequent calls to Fangman, which were not answered and that his voice messages were not
returned.5 In October 2014, Jacobberger went to Respondent’s office to inquire on the status 5
of his application. Donna Smith told him that he needed a referral from a current employee.
When Jacobberger asked Jeff MacTaggert about the referral policy, MacTaggert told him it
was none of his business and asked him to leave.
Respondent changes its application policy; posts signs at its office10
Almost immediately after the visit by Jacobberger and Adame, Respondent posted two
signs on the glass of the door to the building occupied by JM2 and Seedorff. One said that
JM2 is not accepting applications at this time. The other said “No soliciting, No loitering, No
cameras.” These policy changes were made in response to the visits to Respondent’s offices 15
by the union organizers.
A few days later, on about August 4, Respondent replaced these with two new signs.
One stated that JM2 was currently taking applications only through its referral program. The
other said solicitation, loitering, photography or recording on the premises without prior 20
approval of the tenants was prohibited. These were new policies. Prior to July 29, Respondent
had accepted employment applications from walk-ins, and had advertised for help on
Craigslist.6
The covert salts, Monge and Zabriskie, divulge their union affiliation25
While working at the JM2 jobsite at Lauritzen Gardens in July, Marvin Monge joined a
union “job action” at lunch and divulged his support for the Unions.
On July 30, the Union engaged in a “job action” at the Fremont, Nebraska hospital with 30
the inflatable animal, banners, etc.. At lunch Kirk Zabriske went out to where the organizers
were standing to demonstrate his support for the Union.
The termination(s) of covert salt Marvin Monge
35
Monge is hired and fired in Nebraska
During his 4 months of employment with Respondent in Nebraska, Marvin Monge
worked at several different projects laying brick. As stated previously, he divulged his union
affiliation while working at Lauritzen Gardens in late July.40

5 Fangman at Tr. 300, admitted he had a telephone conversation with Jacobberger in August and
did not contradict Jacobberger on any material matter. While he testified that Jacobberger only
identified himself by his first name, Fangman’s testimony, in so far as it suggests that at no point did he
not know that the caller was Jacobberger, is internally inconsistent and incredible.
6 In May 2014, Respondent had initiated a program which compensated its employees with a
“finder’s fee” for referring job applicants who were hired. However, it continued to accept applications
from walk-ins until after the union organizers applied for work at its office.
7
In the first week of August 2014, Monge asked his forman at the Lauritzen Gardens
project for a week off to go camping with his children. The foreman, Ian Lindberg, had no
objection but asked Monge to talk to Superintendent Scott Fangman. Fangman also approved
the time off. At the time Respondent was encountering delays in performing its work at 5
Lauritzen Gardens due to the scheduling difficulties with other trades.
While he was away, Monge had Union Organizer Francis Jacobberger send a certified
letter to Fangman stating that he would have to go to Washington, D.C. to care for his mother
who had taken ill. The letter stated that Monge would return in two weeks, rather than one.10
Monge did not go to the Washington, D.C. area,7 but returned unannounced to the
Lauritzen Garden jobsite on Tuesday, August 19, one day after he originally said he would be
back. Fangman told Monge that he did not have any work for him on August 19, but that
Monge should call him back later that day. Fangman did not ask Monge why he was back 15
early.
After speaking to Fangman, Monge called the union hall. He was instructed to go to a
union “job action” at a JM2 project at 9th and Jones Streets in Omaha. While at the job action,
Monge made eye contact with George Owen, the foreman on the job, for whom he had worked 20
previously. He noticed Owen making a call on his cellphone. Later, Monge and an organizer
approached Owen and other employees at lunch and offered them cold drinks.
At 4:00 p.m. on August 19, Monge spoke again with Fangman. Fangman told Monge
that he had never seen a letter like the one he received on Monge’s behalf and that he 25
considered it a resignation letter.8

7 Monge’s mother does not live in Washington, D.C. but rather with several children in suburban
Virginia and Maryland.
8 Respondent did not contradict Monge’s testimony on any material issue. Therefore I credit
Monge. Monge’s testimony of his conversation with Fangman on the morning of August 19 is
corroborated by a recording Monge made of the conversation. Fangman decided to fire Monge after
learning of his presence at the job action at 9th and Jones. Respondent’s brief at page 35 concedes that
Fangman did not consider that Monge had submitted a resignation letter until his second conversation
with Monge on the afternoon of August 19. The brief does not even mention Monge’s protected
activity, participation in the job action at 9th and Jones, which occurred between the two conversations.
After Monge testified about the events surrounding his terminations, Respondent recalled
Otdoerfer and also called Owen to the stand on March 19. It did not recall Fangman. Owen did not
contradict Monge’s testimony that Owen saw him at the job action on August 19 and immediately
made a call on his cellphone. In fact Owen did not mention Monge at all.
Otdoerfer contradicted Monge on a tangential issue, but did not contradict Monge’s testimony that
he told Monge he had no work for him on August 25 or 26 after telling him quite the contrary on
August 22. Otdoerfer admits that he had talked to Fangman about Monge in the interim.
I do not credit Otdoerfer’s testimony at Tr.118 and 119. Otdoerfer testified that he talked to Monge
about completing his application after August 25 or 26. By this time, Fangman had already fired
Monge. According Otdoerfer’s testimony at Tr. 114-15, he’d already talked to Fangman on August 22,
about Monge’s supposed lying about the reasons for his leave and prior employment in Nebraska. I
also don’t credit any of Respondent’s testimony suggesting that any supposed inconsistencies regarding
Monge’s reasons for taking leave had anything to do with his discharge. He was fired as a result of
8
Marvin Monge is hired and fired in Iowa
On August 21, 2014, Marvin Monge called Isaac Otdoerfer, JM2’s Iowa
Superintendent, and asked if JM2 was hiring. Otdoerfer met with Monge on August 22. They 5
discussed Monge’s work experience but Monge did not tell him that he had worked for
Respondent in Nebraska. Monge told Otdoerfer that his last employer was Bonilla, which is a
company owned by a relative of Monge. Otdoerfer hired Monge to work as a bricklayer on a
project at a school in Indianola, Iowa the next week.
10
Sometime after Otdoerfer hired Monge, possibly on August 22, Tr. 114, Otdoerfer
spoke with Scott Fangman. I infer that Fangman told Otdoerfer that he had fired Monge the
previous week. He may also have discussed the reasons for Monge’s discharge and/or the
pretext regarding Monge’s inconsistent reasons for going on leave. Monge reported to the
Indianola jobsite on Monday, August 25 or Tuesday, August 26. The foreman at the site told 15
Monge that he did not have any work for him. Monge then spoke with Otdoerfer. Otdoerfer
also told Monge he had no work for him. They never spoke after that. Essentially,
Respondent fired Monge from the Iowa project before he ever performed any work for it. The
reason for his discharge is related in whole or in part to his participation in the job action at 9th
and Jones on August 19.20
George Owen’s alleged threat
In late August or early September, Kirk Zabriskie, who had already identified himself
as a union supporter, was transferred to Respondent’s jobsite at 9th and Jones Streets in 25
Omaha. Respondent’s foreman at this site was George Owen.
Zabriske testified that as soon as he walked on the jobsite, Owen stated that Zabriskie
was a “union guy” and that that he was going kick the ass of the union demonstrators in the
parking lot because they were stealing gas from Respondent and doing stuff to Respondent’s 30
trucks, Tr. 452. At Tr. 473, Owen denied saying anything to Zabriskie about being in the
Union, threatening Zabriskie or making any statement about whipping Zabriskie’s ass. Owen
did not contradict Zabriskie’s testimony that Owen said he was going to kick the ass of the
participants in the union job action. I find that he did so.
35
Analysis
With regard to most of the issues in this case very little legal analysis is required. The
General Counsel clearly met it burden under FES, 331 NLRB 9 (2000), supplemented 333
NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002). Indeed, Respondent at page 26 of its post-40
trial brief concedes this point. Respondent was hiring bricklayers and laborers, Jacobberger,
Adame and Skaff had experience relevant to the bricklayer and laborer positions for which

being spotted at the union job action on August 19. Moreover, anything Monge said pertaining to this
case that was not true was also immaterial, see Hartman Brothers Heating and Air Conditioning, Inc. v.
NLRB, supra.
9
JM2 was hiring.9 Furthermore, there is no question that anti-union animus was the principal
reason they were not hired. To the extent that Respondent suggests that it did not hire these
individuals due to any deficiency in their applications, I conclude this contention is pretextual.
Had there been anything deficient in their applications, Donna Smith would have told them so.
5
There is also no question either that Respondent fired Marvin Monge from his job in
Nebraska because of his union activities and fired him (or refused to put him to work) in Iowa
for the same reasons. The timing of Scott Fangman’s change of heart with regard to Monge,
after learning that he participated in a union job action on August 19, clearly establishes the
nexus between Monge’s discharge and his union activities. I also infer this was the reason 10
Respondent in effect rescinded its offer of employment to Monge in Iowa.
George Owen’s remarks to Kirk Zabriskie about kicking the ass of the union
representatives demonstrating at the 9th and Jones worksite were also coercive regardless of the
fact that he did not threaten violence against Zabriskie. The remark was made on Zabriskie’s 15
first day on the 9th and Jones worksite. Owen was aware that Zabriskie was a union supporter
and according to this record had no basis for assuming that the union officials were responsible
for any of the vandalism he believed occurred at the worksite.
In other contexts the Board has held that statements about “kicking your ass” even 20
when directed to the listener do not, if standing alone, convey a threat of physical harm,
Laesco, Inc., 289 NLRB 549 fn. 1 (1988). In Laesco, the Board found that such a comment
was a “colloquialism” not so egregious that an employee otherwise engaged in protected
activity sacrificed the protections of the statute. In Lamar Advertising of Janesville, 340
NLRB 979, 980-81 (2003) the Board overruled employer objections based on statements by 25
two pro-union employees that they would “kick the ass” of another employee. In Town &
Country Supermarkets, 340 NLRB 1410, 1412-13 (2004), on the other hand, the Board found
an employer was entitled to discharge an employee. It found the “kick ass” comment in that
case was more than mere bravado, but was a physical challenge.
30
Since the General Counsel litigated the Owen comment as a threat of physical violence,
I dismiss this complaint allegation. Owen clearly did not threaten Zabriskie with physical
violence and Zabriskie could not have seriously thought that Owen was going to assault the
union participants in the job action.
35
The Toering Issue
Respondent contests the actual interest in employment of union organizers
Jacobberger, Skaff and Adame. Pursuant to Toering Electric Co., 351 NLRB 225, 232-34
(2007), the General Counsel must prove that each of these men was genuinely seeking an 40
employment relationship with JM2. It is not entirely clear from Board cases what the General

9 At page 29 of its brief, Respondent states that Jacobberger’s application showed no prior
experience as a laborer or bricklayer. However, the résumé attached to that application indicated 16
years of such experience. Moreover, Respondent hired applicants who were far less specific about
their experience. Contrary to Respondent’s brief, Adame listed a masonry contractor as one of his two
most recent employers.
10
Counsel needs to do to meet this burden. One could say that it is sufficient if the applicant
shows up in person to apply for work and at the trial, establishes that he or she is qualified to
do the job and testifies that he or she would have worked for the Respondent had a job been
offered.10 If this is the requisite test, Respondent violated the Act with regard to all three
applicants in this matter, see, e.g. Cossentino Contracting Co., 351 NLRB 495 (2007). The 5
Board in Cossentino held that a lack of recent on-the-job experience did not necessarily
indicate a lack of genuine interest in employment.
I find that the General Counsel clearly met its burden with regard to Jacobberger and
Skaff. Adame presents a closer question. The General Counsel established that Jacobberger 10
has in fact worked for a non-union contractor recently for a substantial period while employed
by the Bricklayer’s Union as an organizer.11 The fact that he lives in Maryland is irrelevant to
whether he was genuinely seeking work. Construction workers often live apart from their
families while working. Apart from my awareness of this fact from numerous cases in which I
have presided, Marvin Monge and Kirk Zabriskie established that in this record. I also infer 15
that the Union would have subsidized Jacobberger’s living expenses, as it did for Monge and
Zabriskie. Moreover, Jacobberger testified, without contradiction, that if he was hired long-
term by Respondent he would live with an aunt in Omaha.
Jared Skaff lives in the Omaha, Nebraska area and has worked as a bricklayer from 20
1998 through March 2014 and again after February 2015. I thus credit his testimony that he
would have accepted a job with JM2 and I infer the Union would have made up the difference
between union scale and JM2’s compensation, as it did with Monge and Zabriskie. I do not
credit Jeff MacTaggert’s self-serving testimony as to why he would not hire Skaff, which is
unsupported by any documentation regarding Skaff’s work history.25
Ernest Adame is a union regional representative based in California. The evidence that
supports the proposition that Adame was genuinely seeking employment is that he applied for
work with Respondent, was qualified for the positions for which he applied and testified at the
trial that he would have accepted a job if offered. 30
Unlike Jacobberger, there is no evidence that Adame had ever worked as a bricklayer
for any substantial period of time while also being employed by the Union. When asked if he
had ever worked as a bricklayer while also being a regional representative, Adame could not
give many specifics. He also stated that such employment “wasn’t a long period. It was just 35
to gather some information,” Tr. 343. Since 2006 he appears to have worked as a bricklayer
only once, for a non-union contractor named Frazier, for less than a week.12 Nevertheless,
Adame’s lack of recent long-term full time employment as a bricklayer, does not, pursuant to
Cossentino indicate that he was not genuinely seeking employment. Thus, I find that the

10 This is not to say that an employee whose application is submitted by another employee or even
an organizer, might not also have a genuine interest in being hired as a salt.
11 Respondent made no attempt to discredit Jacobberger’s testimony at Tr. 236 about his 2012
salting work as a mason and laborer for Academy Stone in Annapolis, Maryland. Respondent
subpoenaed Jacobberger’s W-2 forms, so it could easily have attacked the credibility of this testimony
if it could have done so.
12 Adame’s age, 56, is irrelevant to whether he would have accepted a job with Respondent. JM2
hired Zabriskie, who may be older.
11
General Counsel met its Toering burden with regard to Adame, as well as with Jacobberger
and Skaff.
Adame lives in California and has been a regional representative since 2006. I infer
that the Union paid his expenses while organizing in Nebraska and would have continued to 5
have done so if Adame had been hired by Respondent. I draw this inference from the fact that
the Union subsidized the employment and living expenses of Monge and Zabriskie.
The Section 8(b)(7)(C) issue
10
Section 8(b)(7)(C), of the Act provides that:
…it shall be an unfair labor practice for a labor organization or its agents:
(7) to picket or cause to be picketed, or threaten to picket or cause to be 15
picketed, any employer where an object thereof is forcing or requiring an
employer to recognize or bargain with a labor organization as the representative
of his employees, or forcing or requiring the employees of an employer to
accept or select such labor organization as their collective-bargaining
representative, unless such labor organization is currently certified as the 20
representative of such employees:
(C) where such picketing has been conducted without a petition under section
9(c) [section 159(c) of this title] being filed within a reasonable period of time
not to exceed thirty days from the commencement of such picketing: Provided, 25
That when such a petition has been filed the Board shall forthwith, without
regard to the provisions of section 9(c)(1) [section 159(c)(1) of this title] or the
absence of a showing of a substantial interest on the part of the labor
organization, direct an election in such unit as the Board finds to be appropriate
and shall certify the results thereof: Provided further, That nothing in this 30
subparagraph (C) shall be construed to prohibit any picketing or other publicity
for the purpose of truthfully advising the public (including consumers) that an
employer does not employ members of, or have a contract with, a labor
organization, unless an effect of such picketing is to induce any individual
employed by any other person in the course of his employment, not to pick up, 35
deliver or transport any goods or not to perform any services.
Nothing in this paragraph (7) shall be construed to permit any act which would
otherwise be an unfair labor practice under this section 8(b) [this subsection].
The Union sent Respondent a letter on May 13, 2014 disclaiming any intention of 40
trying to organize Respondent’s employees. The letter stated that the Union’s only objective
in the course of its dispute with Respondent was to inform the public that JM2’s employees
received substandard wages. This letter appears somewhat inconsistent with the Union’s
salting campaign. Nevertheless, I conclude that section 8(b)(7)(C) of the Act does not have
any relevance to this case. First of all, Respondent never filed an unfair labor practice charge 45
alleging that the Union was in violation of this provision. Moreover, at no point did
12
Respondent contend that its refusal to hire Skaff, Adame and Jacobberger and/or to discharge
Monge was due to an alleged violation of Section 8(b)(7)(C) by the Union.
Respondent violated Section 8(a)(3) and (1 )in changing its application policies in
response to the salting campaign. It violated Section 8(a)(1) in posting no loitering, no 5
soliciting and no photography signs.
The General Counsel alleges in paragraphs 6 and & 7 of the complaint that Respondent
violated Section 8(a)(3) and (1 ) in changing its application policies in response to the salting
campaign. He also alleges that Respondent violated Section 8(a)(1) in posting no loitering, no
soliciting and no photography signs on the doors to its building.10
It is absolutely clear from this record that in changing its application process, first to
refuse to take applications from walk-ins, and then to exclude applicants other than referrals,
Respondent was motivated by a desire to screen out union members, particularly the union
organizers. The timing of these changes to the application process could not make
Respondent’s motives clearer. Thus, JM2 violated the Act as alleged, M.J. Mechanical 15
Services, 325 NLRB 1098, 1108 (1998). The timing of its posting of the signs prohibiting
solicitation, photography, etc. also leads me to conclude that Respondent was motivated by a
desire to make it more difficult for union organizers to apply for a job and for the applicants to
disprove any claims by Respondent that the Union applicants had acted in a threatening or
other inappropriate manner.1320
Respondent’s claims that it changed its application process to protect Donna Smith
have no merit. Even after it refused to let non-referrals apply, anyone could walk into the
building and approach Donna Smith at the counter. Respondent also applied the referral policy
in a discriminatory manner. This is demonstrated by the fact that Respondent hired Marvin
Monge on August 22, without a referral and without Otdoerfer’s knowledge of his union 25
affiliation.
The employment applications in the record suggest that other non-union applicants
were also hired without a referral by a current employee. While some of the applications of
employees hired indicated a referral, others do not. For those whose applications that do not
indicate who referred the applicant to Respondent, there is no other evidence regarding a 30
referral.
I also find that Respondent failed to establish that any of these changes were motivated
by nondiscriminatory insurance concerns, as alleged at pages 15-16 of its post-trial brief.
There is nothing to support a relationship between Respondent’s changes to its application
process and insurance concerns other than its bald assertion. For example, while the brief 35
states that Respondent was concerned with lower skilled employees not working safely, there

13 While the union organizers did not explain why they needed to record the application process,
Respondent’s claims that Donna Smith was upset or felt threatened by them, establishes there was
some legitimate reason for doing so. The recordings establish that Ms. Smith was not visibly upset, or
threatened in any way. Thus, for example, I discredit Jeff MacTaggert’s testimony that Smith was
“rattled, Tr. 36.” If she even noticed the person filming the July 29 episode, she would have
recognized Jacob Skaff as the photographer.
13
is no credible evidence, for example, that Sam Bryant, hired by Respondent as a laborer on
July 30, 2014 had any skills relevant to masonry work, or that he was referred to Respondent
by a current employee. Moreover, Jeff MacTaggert admitted that the changes were motivated
at least in part by the visits of the union salts to its office, Tr. 79.14
In summary, the changes to Respondent’s application process and the rules posted on 5
the door of its building were promulgated in response to union activity and therefore violated
the Act, Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004).
Conclusions of Law
10
Respondent violated Section 8(a)(3) and (1) by refusing to consider Francis
Jacobberger, Jared Skaff and Ernest Adame for employment and refusing to hire them in July
2014.
Respondent violated Section 8(a)(3) and (1) in discharging Marvin Monge on August 15
19, 2014 and refusing to rehire him and/or discharging him on August 25, 2014.
Respondent violated Section 8(a)(3) and (1) in first changing its application process in
refusing to accept applications from walk-ins and then limiting the process to referrals.
20
Respondent violated Section 8(a)(1) in posting signs on the doors to its building
prohibiting loitering, solicitation and cameras.
REMEDY
25
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily refused to hire Francis Jacobberger, Jared 30
Skaff and Ernest Adame, it must make them whole for any loss of earnings and other benefits,
consistent with the Board’s decision in Oil Capitol and Sheet Metal, 349 NLRB 1348 (2007),
computed on a quarterly basis, less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest compounded daily, Kentucky River Medical Center,
356 NLRB No. 8 (October 22, 2010) as computed in New Horizons, 283 NLRB 1173 (1987).35
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended15

14 In an affidavit given to the General Counsel on November 18, 2014, MacTaggert did not mention
insurance costs as a reason for the exclusivity of the referral program. I conclude this to be a post-hoc
rationalization and discredit it.
15 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
14
ORDER
The Respondent, Jeff MacTaggert Masonry, d/b/a JM2, Omaha Nebraska and Ankeny,
Iowa, its officers, agents, successors, and assigns, shall
5
1. Cease and desist from
(a) Refusing to consider for employment or refusing to hire any job applicant because
the applicant is a union organizer, supports a union or seeks union representation.
10
(b) Discharging or otherwise discriminating against any employee for engaging in
union or other protected concerted activities.
(c) Changing its application policies to discourage union applicants.
15
(d) Adopting rules, including the posting of signs, designed to prohibit union
applicants from documenting their applications for employment.
(e) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.20
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days of the Board’s Order, offer immediate employment (instatement) to
Francis Jacobberger, Jared Skaff and Ernest Adame in the positions for which they25
applied, or, if such positions no longer exist, to substantially equivalent positions.
(b) Within 14 days from the date of the Board’s Order, offer Marvin Monge 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 30
privileges previously enjoyed.
(c) Make Francis Jacobberger, Jared Skaff , Ernest Adame and Marvin Monge whole
for any loss of earnings and other benefits suffered as a result of the discrimination
against them in the manner set forth in the remedy section of the Board’s decision.35
(e) Within 14 days of the Board’s Order, remove from Respondent’s files any reference
to the unlawful refusal to hire Francis Jacobberger, Jared Skaff , and Ernest Adame
and within 3 days thereafter, notify them in writing that this has been done and that
the refusal to hire them will not be used against them.40
(f) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges/refusal to hire of Marvin Monge, and within 3
days thereafter notify him in writing that this has been done and that the
discharge/refusal to hire will not be used against him in any way.45
15
(g) File a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
(h) Compensate Francis Jacobberger, Jared Skaff, Ernest Adame and Marvin Monge
for the adverse tax consequences, if any, of receiving one or more lump-sum 5
backpay awards covering periods longer than 1 year.
(i) Rescind all changes to its application procedures that decline to accept applications
from walk-ins and limit its application process to referrals.
10
(j) Remove all signs and rescind all rules initiated to discourage applicants from
applying in person at Respondent’s offices and to prohibit applicants from
documenting the circumstances of the submission of their applications.
(k) Preserve and, within 14 days of a request, or such additional time as the Regional 15
Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze
the amount of backpay due under the terms of this Order.20
(l) Within 14 days after service by the Region, post at its Omaha, Nebraska facility
copies of the attached notice marked “Appendix A.”16 Copies of the notice, on
forms provided by the Regional Director for Region 14, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and 25
maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility involved in these 30
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees employed by the
Respondent at any time since July 14, 2014.
(m)Within 14 days after service by the Region, post at its Ankeny, Iowa facility copies 35
of the attached notice marked “Appendix B.”17 Copies of the notice, on forms
provided by the Regional Director for Region 18, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places

16 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.”
17 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.”
16
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 5
the notice to all current employees and former employees employed by the
Respondent at any time since August 19, 2014.
(n) 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 10
other electronic means, if the Respondent customarily communicates with its
employees by such means.
(o) 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 15
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. May 6, 2015.
20
____________________
Arthur J. Amchan
Administrative Law Judge
25
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 Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to consider for hire or refuse to hire any job applicant because we
believe that they intend to try to organize our employees or because they seek union
representation by any labor organization including the International Union of Bricklayers and
Allied Craftworkers Local 15, MO-KS-Ne and Local 3, Iowa..
WE WILL NOT discharge or otherwise discriminate against any of you for supporting the
International Union of Bricklayers and Allied Craftworkers Local 15, MO-KS-Ne and Local 3,
Iowa or any other union.
WE WILL NOT refuse to accept employment applications from walk-ins.
WE WILL NOT limit our application process to referrals.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Marvin Monge 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 privileges previously enjoyed.
WE WILL, within 14 days of the Board’s Order, offer immediate employment to Francis
Jacobberger, Jared Skaff and Ernest Adame in the positions for which they applied, or, if such
positions no longer exist, to substantially equivalent positions.
WE WILL make Marvin Monge whole for any loss of earnings and other benefits resulting
from his discharge, less any net interim earnings, plus interest compounded daily.
WE WILL make Francis Jacobberger, Jared Skaff, Ernest Adame and Marvin Monge whole
for any loss of earnings and other benefits suffered as a result of the discrimination against
them in the manner set forth in the remedy section of the Board’s decision.
WE WILL, within 14 days of the Board’s Order, remove from our files any reference to the
unlawful refusal to hire Francis Jacobberger, Jared Skaff, Ernest Adame and Marvin Monge
and WE WILL, within 3 days thereafter, notify Francis Jacobberger, Jared Skaff, Ernest
Adame and Marvin Monge in writing that this has been done and that the refusal to hire them
will not be used against them.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful discharge of Marvin Monge 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.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
WE WILL compensate Francis Jacobberger, Jared Skaff, Ernest Adame and Marvin Monge
for the adverse tax consequences, if any, of receiving one or more lump-sum backpay awards
covering periods longer than 1 year.
WE WILL rescind the changes in our employment application process that refused to accept
applications from walk-ins to our office and the policies that refused to accept applications or
consider for employment any applicant other than a referral.
WE WILL remove all signs and rescind all policies that were initiated to discourage applicants
from documenting the circumstances of the submission of their application, including removal
our signs stating that no solicitation, no loitering and no cameras are allowed.
JEFF MACTAGGERT MASONRY, LLC,
d/b/a JM2
(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.
1222 Spruce Street, Room 8.302, Saint Louis, MO 63103-2829
(314) 539-7770, Hours: 8 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/14-CA-138748 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, (314) 539-7780.
APPENDIX B
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to consider for hire or refuse to hire any job applicant because we
believe that they intend to try to organize our employees or because they seek union
representation by any labor organization including the International Union of Bricklayers and
Allied Craftworkers Local 15, MO-KS-Ne and Local 3, Iowa..
WE WILL NOT discharge or otherwise discriminate against any of you for supporting the
International Union of Bricklayers and Allied Craftworkers Local 15, MO-KS-Ne and Local 3,
Iowa or any other union.
WE WILL NOT refuse to accept employment applications from walk-ins.
WE WILL NOT limit our application process to referrals.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Marvin Monge 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 privileges previously enjoyed.
WE WILL, within 14 days of the Board’s Order, offer immediate employment to Francis
Jacobberger, Jared Skaff and Ernest Adame in the positions for which they applied, or, if such
positions no longer exist, to substantially equivalent positions.
WE WILL make Marvin Monge whole for any loss of earnings and other benefits resulting
from his discharge, less any net interim earnings, plus interest compounded daily.
WE WILL make Francis Jacobberger, Jared Skaff, Ernest Adame and Marvin Monge whole
for any loss of earnings and other benefits suffered as a result of the discrimination against
them in the manner set forth in the remedy section of the Board’s decision.
WE WILL, within 14 days of the Board’s Order, remove from our files any reference to the
unlawful refusal to hire Francis Jacobberger, Jared Skaff, Ernest Adame and Marvin Monge
and WE WILL, within 3 days thereafter, notify Francis Jacobberger, Jared Skaff, Ernest
Adame and Marvin Monge in writing that this has been done and that the refusal to hire them
will not be used against them.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful discharge of Marvin Monge 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.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
WE WILL compensate Francis Jacobberger, Jared Skaff, Ernest Adame and Marvin Monge
for the adverse tax consequences, if any, of receiving one or more lump-sum backpay awards
covering periods longer than 1 year.
WE WILL rescind the changes in our employment application process that refused to accept
applications from walk-ins to our office and the policies that refused to accept applications or
consider for employment any applicant other than a referral.
WE WILL remove all signs and rescind all policies that were initiated to discourage applicants
from documenting the circumstances of the submission of their application, including removal
our signs stating that no solicitation, no loitering and no cameras are allowed.
JEFF MACTAGGERT MASONRY, LLC,
d/b/a JM2
(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.
Towle Building, Suite 790, 330 Second Avenue South, Minneapolis, MN 55401-2221
(612) 348-1757, Hours: 8 a.m. to 4:30 p.m.
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, (612) 348-1770.