CF Taffe Plumbing

National Labor Relations Board - Administrative Judge Opinions

Nov 8, 2010

13-CA-045890 (N.L.R.B. Nov. 8, 2010)

JD–64–10
Chicago, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CF TAFFE PLUMBING CO., INC. Case No. 13—CA—45890
and
MICHAEL SCHMIDT, An Individual
Sylvia L. Taylor, Esq., for the General Counsel.
Daniel M. Purdom and Brian R. Zeeck, Esqs., (Hinshaw & Culbertson, LLP)
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. Michael 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 discharged him on February 9, 2010 in violation of Section 8(a)(3)
and 8(a)(1) of the Act. The Complaint also alleges that Respondent, 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,1 including my observation of the demeanor 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 commerce. 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.

1 The General Counsel’s unopposed motion to correct the transcript is granted. The word
“narced” (as in narcotics) was mistranscribed as “knocked” at page 9, line 21; page 10, line 20
and page 35, line 24. Also “potable” was mistranscribed as “probable” at page 140, line 13.
Page 339, line 23 should read “foreman scale,” rather than “plumbing scale.” Page 21, line 19
should read “get the F out of here.”
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II. Alleged Unfair Labor Practices
Respondent is a family owned and operated plumbing business, which has been a
signatory contractor with Chicago Journeyman Plumbers’ Local Union No. 130, U.A. for years.
In 2004, Edward “Ted” Taffe and Charles Taffe, who were journeymen in Local 130, took over
the management of Respondent upon the death of their father. They have had a long-standing
harmonious relationship with the Union. Respondent’s work has consisted mainly of the
maintenance of plumbing 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 disciplined or even reprimanded Schmidt.
Laborer Joe O’Brien, who often worked with Schmidt, testified 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 complaining to the Union, apparently
anonymously at first, that Respondent was violating its collective bargaining agreement by
allowing laborers to do work that should be done by plumbers, Tr. 141-43. 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 was tired of being sent home
without work because laborers were doing plumbing work, Tr. 20-21. He demanded that
Respondent pay him for showing up at Respondent’s office for two 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.2 After Schmidt called Shea, Chuck Taffe called Schmidt and asked if he called
the Union. Schmidt denied that he did so, Tr. 25.3

2 Neither Coyne nor Shea testified in this hearing; thus Schmidt’s testimony about his
conversations with them is uncontradicted. Moreover, Kevin Sherlock testified that Shea told
him that Schmidt had been to the union hall to speak with Shea. I therefore credit Schmidt’s
testimony 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.
3 At Tr. 378 Chuck Taffe testified that he did not suspect Schmidt as being the source of the
Union inquiries regarding the laborers performing 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 laborers 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
Continued
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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
Respondent’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 contractual violations. Although the
auditors did not find any violations of the collective bargaining agreement, as alleged by
Schmidt, it is clear that his allegations were at least to some extent well-founded, Tr. 196-99,
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.4 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 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 informed
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 angry. 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, Respondent 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 currently a plumbing foreman for Respondent, the
company’s payroll records indicate that he has not worked for Taffe since May 2010, Tr. 321,
_________________________
testimony. Ted Taffe did not specifically address Schmidt’s testimony regarding their alleged
conversation in February 2009; I therefore credit that testimony.
4 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.
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428, R. Exh. 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 wanted 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.5 Sherlock
discussed the Union’s audit and mentioned 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. 150-51, 377. Sherlock testified that he did not identify the complainant.
Taffe testified he didn’t suspect Schmidt. However, I discredit this testimony and to the
contrary infer that Taffe inferred 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. Moreover, Schmidt had been very open at the shop about his anger over this
issue.6
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 unemployment, that [is] up to you,
but I’m just making calls right now to everyone.

5 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.
6 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 complaints were in fact about this issue. Laborer Joe O’Brien was assigned a job
that day with another plumber while Schmidt waited for an assignment, 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.
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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.
G.C. Exh. 4.7
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 laborer 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
Association (sic).8 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 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 grievance over Respondent’s use of laborers to do plumbers’ work, Tr. 156.
Taffe called Schmidt at about 9:00 a.m. and suggested they meet at a Denny’s restaurant the
next day, Tr. 33-4, 388.
Tuesday, February 9
Schmidt and Chuck Taffe met at a Denny’s restaurant on the morning of February 9, Tr.
35, 388-91. 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 family
because you knocked9 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 no family member would treat their family in that way.
And basically he said, well, I'm here to try to make things right between us, and basically
after that I told him that I already filed a charge yesterday with the National Labor
Association.
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

7 From Ted Taffe’s complaint about the Union hassles, I find that Chuck Taffe talked to
Sherlock before Ted called Schmidt.
8 I credit Schmidt’s testimony that he initially called Johnston to determine 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 grievance
because the laborers were doing his work.
Schmidt did not file a charge with the Board until March 8, 2010.
9 Schmidt said “narced” (as in narcotics), rather than “knocked,” see footnote 1.
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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 engineer 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 grievances. 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 severance pay. He denied
threatening to fabricate complaints from customers or anything similar as alleged in complaint
paragraph V(a). I credit the essence of Schmidt’s account of this conversation. I am persuaded
by the testimony elicited by Respondent at trial that upon learning that Schmidt filed or intended
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 that since he filed or was going to file
a charge he was no longer 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. However, I find that Taffe did tell Schmidt that if there was any sort
of proceeding regarding the circumstances of Schmidt’s discharge that he would elicit testimony
from customers denigrating Schmidt’s job performance.
I make this determination because the reasons advanced by Respondent for laying-off or
terminating Schmidt are pretextual. 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 elicited from a number of its clients, employees and former
employees 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
alleged discriminatee’s protected conduct was a ‘motivating factor’ 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. Transportation
Management Corp., 462 U.S. 393, 399-403 (1983) ; American Gardens Management Co., 338
NLRB 644 ( 2002).
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The General Counsel met his initial burden; Respondent did not establish that it would have
terminated Schmidt’s employment 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 employees covered by the contract. It has long been held
that such activity is concerted and protected under the Act, Interboro Contractors, 157
NLRB 1295 (1966). An employee making such a complaint need not specifically refer to
the collective-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 reasonably perceived violation of the collective bargaining agreement, the
complaining employee is engaged in the process 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 plumbing 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
complainant 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 the 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. Respondent’s work had decreased markedly in the year prior to the
termination. 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 precipitated 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 February 5, to be
incredible.10

10 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
Continued
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Pretext
Respondent contends that it laid Schmidt off due to poor economic conditions and
because he was the most expendable plumber in its workforce. Respondent submits that work
was 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 reports to the plumbers union of the hours worked by its plumbers,
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 employment it never informed him
that any of its customers requested 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 customers about
Schmidt’s work. It is quite apparent that Respondent sought to build a case against Schmidt
after his termination 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 8:00, the contractors were not allowed to make loud noises until 9:00 since the Hall
was partially occupied.
Jim Nolan, a vice-president of Hylan-Nolan, testified that Schmidt refused to comply with
the 9:00 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 occasion threatened to remove Hylan-
Nolan from the job if Hylan-Nolan did not comply with the University’s noise restrictions, Tr. 308-
09, 312.
Nolan testified that he received 7 or 8 complaints from his foreman that Schmidt would
not comply with the noise restrictions. 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 Respondent 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. 441-2. I do not find this testimony credible.
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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 proceed with
the lay-off of the other three employees in order to minimize the chances that they would be
accused of laying off Schmidt discriminatorily.
Finally, it has not been established that the lay-off of other employees in March was due to
economic conditions, as opposed to, for example, pressure from the Union to abide by the
terms of the collective bargaining agreement.
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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 incredible. It defies credulity to believe that
the University of Chicago, one of Hylan-Nolan best customers (Tr. 309), was threatening to
throw Hylan-Nolan off the Palevsky Hall project because of Schmidt’s non-compliance 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.11 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 Condominium, 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 apparently did not work at Jackson Towers after this incident but
there is no evidence that this was the result of Carlson’s complaint. 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 Hancock Building in Chicago. He was called as a witness
by Respondent and testified to two occasions on which he was unhappy with work performed by
Michael Schmidt for Respondent. 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 establishes 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 performance/errors/misconduct prior to termination
At hearing Respondent introduced evidence of mistakes, misconduct and poor
performance on the part of Schmidt during the five years that he worked for it. Respondent
contends that it was unaware of the some of these incidents prior to his termination.
Joe O’Brien testified that Schmidt lied to Respondent about the circumstances under
which his company vehicle was broken 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

11 To the extent that Nolan suggests that Respondent replaced Schmidt, Tr. 316-17, 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.
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me to conclude that Respondent made a concerted effort to find damaging information about
Schmidt in order to discredit him. Given this effort, I find it more likely than not that on February
9, at Denny’s, Chuck Taffe threatened to gather such information for this purpose 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 ten 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 of the
building engineers at the site. I find the record does not establish that the flood was Schmidt’s
fault. Joe O’Brien, who was working with Schmidt, testified that both he and Schmidt believed
the water was off. O’Brien cut into the pipe as well.
Somewhere between 1-3 years prior to Schmidt’s termination, 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.12 Ted Taffe, on the other hand, testified that Schmidt was making fun of man’s
accent and that he removed him from the job. Given the discrepancy between these accounts, I
credit neither. I don’t necessarily credit Schmidt’s account of the incident either.
Respondent also accuses Schmidt of stealing tools that belong 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 two weeks. Assuming that tools were missing,
once 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 post-termination conduct
After Schmidt was terminated he called several of Respondent’s customers. He told
some of Respondent’s customers that Taffe was using unlicensed plumbers. Schmidt sent text
messages 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 Respondent’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.”13

12 O’Brien said this occurred 1-1 ½ years ago at Tr. 235-36, but testified that it happened 2-3
years ago at Tr. 273.
13 Respondent introduced 4 text messages which O’Brien forwarded 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.
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The effect of Schmidt’s post-termination conduct on his entitlement
to reinstatement and back-pay.
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
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
continued 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 company policy and any ambiguities will be resolved against the employer.”
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. 7.4
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
appears to threaten physical violence, is the type of conduct for which any employer would
discharge an employee. I am unaware 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 mandates such a result.
In Lear-Siegler, the Board denied reinstatement and tolled backpay because the
discriminatee threatened a potential witness 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 back pay ended on May 6, when employee Joe O’Brien
forwarded the text message to Respondent.
I do not find that Respondent’s liability for back pay terminated 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 agreement would be enforced, that only plumbers would do plumbing 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
received 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 two weeks after Schmidt had returned it. Moreover, the
fact that O’Brien waited two 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 determine whether they were threatening from an objective standpoint.
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
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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 non-union and that Taffe was overcharging
Cain. Cain also testified that Schmidt disparaged the quality of Respondent’s work.
Schmidt denied that he told Cain that Respondent did substandard work. He testified
that he only told Cain that Respondent 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 testimony, I do not credit that of Nolan or Sherlock either. I have
already 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.
Conclusions of Law
1. Respondent violated Section 8(a)(3) and (1) by terminating 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 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.
4. Michael Schmidt forfeited his entitlement to reinstatement by sending a threatening
text message to employee Joseph O’Brien on May 6, 2010, which O’Brien immediately
forwarded to Respondent.
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5. Michael Schmidt’s entitlement to backpay is tolled as of May 6, 2010.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged Michael Schmidt, it must make him
whole for any loss of earnings and other benefits, computed on a quarterly basis from February
6, 2010 to May 6, 2010, 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 for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended14
ORDER
The Respondent, CF Taffe Plumbing Co., Inc., Chicago, Illinois, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any employee for engaging 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 intended to file a charge with
the NLRB that it would elicit testimony from its clients disparaging his or her work.
(c) telling an employee that he or she was not part of Respondent’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, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make Michael Schmidt whole for any loss of earnings and other benefits suffered as
a result of the discrimination against him during the period February 6, to May 6, 2010, as
specified in the remedy portion of this decision.

14 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.
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(b) Within 14 days from the date of the Board’s Order, remove from its files any
reference to Michael Schmidt’s unlawful 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.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(d) Within 14 days after service by the Region, post at its Chicago, Illinois facility copies
of the attached notice marked “Appendix.”15 Copies of the notice, on forms provided by the
Regional Director for Region 13, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
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.
(e) 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.
Dated, Washington, D.C., November 8, 2010.
____________________
Arthur J. Amchan
Administrative Law Judge

15 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD–64–10
Chicago, IL
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT 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, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL make Michael Schmidt whole for any loss of earnings and other benefits resulting
from his discharge and other discrimination, less any net interim earnings, plus interest
compounded daily for the period February 6, 2010 to May 6, 2010.
JD–64–10
Chicago, IL
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharge of Michael 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.
(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.
200 South LaSalle Street, Suite 900, Chicago, IL 60606-1219
(312) 353-7570, Hours: 8:30 a.m. to 5 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, (312) 353-7170.