Random Acquisitions, LLC

National Labor Relations Board - Board Decisions

Aug 1, 2011

357 N.L.R.B. 303 (N.L.R.B. 2011)

RANDOM ACQUISITIONS, LLC
357 NLRB No. 32
303
Random Acquisitions, LLC and Sherrie Cvetnich.
Case 07–CA–052473
August 2, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On March 21, 2011, Administrative Law Judge Mark
D. Rubin issued the attached decision. The Respondent
filed exceptions, and the Acting General Counsel filed an
answering brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions, and
to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Random
Acquisitions, LLC, Battle Creek, Michigan, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 2(e).
“(e) Within 14 days after service by the Region, post at
its Battle Creek, Michigan facility copies of the attached
notice marked “Appendix.”87 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. 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 custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-

1 The Respondent also filed a motion for leave to amend its answer
to deny allegations, previously admitted, that alleged discriminatees
Sherrie Cvetnich, Eric Cvetnich, and Teresa Burge were (1) statutory
employees; and (2) discharged on October 16, 2009. The Acting Gen-
eral Counsel filed an opposition to the motion. The Board denied the
Respondent’s motion on July 12, 2011.
2 We shall modify the judge’s recommended Order to require elec-
tronic distribution of the notice “if the Respondent customarily com-
municates with its employees by such means,” in accord with J. Picini
Flooring, 356 NLRB 11 (2010). We shall also modify the recommend-
ed Order to include the Board’s standard certification-of-compliance
provision.
ered by any other material. If 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 em-
ployees and former employees employed by the Re-
spondent at any time since October 16, 2009.”
2. Add the following as paragraph 2(f).
“(f) Within 21 days after service by the Region, file
with the Regional Director for Region 7 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.”

Joseph D. Canfield, Esq., for the General Counsel.
James R. Durant, Esq., of Portage, Michigan, for the Respond-
ent.
DECISION
MARK D. RUBIN, Administrative Law Judge. This case was
tried in Grand Rapids, Michigan, on September 30 and October
1, 2010, based on a charge filed on October 26, 2009, by Sher-
rie Cvetnich (Charging Party) against Random Acquisitions,
LLC (Respondent). The Regional Director’s complaint, dated
June 30, 2010, alleges that the Respondent violated Section
8(a)(1) of the Act by discharging its employees Eric Cvetnich,
Teresa Burge, and Sherrie Cvetnich on October 16, 2009.1 The
Respondent, by its answer to the complaint submitted 2 days
before the opening of the hearing herein, admitted discharging
its said employees on October 16, but denied that it did such for
reasons prohibited by Section 8(a)(1).
The General Counsel’s theory of violation is that the three
employees named in the complaint were discharged on October
16 because, on that same date, Sherrie Cvetnich concertedly
protested the Respondent’s failure to pay them earned wages
due for work already performed.2 The Respondent, despite
admissions contained in its answer, contends that, in fact, the
named individuals were either not employees, or were dis-
charged on a date earlier than October 16. The Respondent
also maintains that Sherrie Cvetnich misbehaved while com-
plaining to the Respondent about its failure to provide them
with their wages.
At trial, the parties were afforded a full opportunity to exam-
ine witnesses, to adduce competent, relevant, and material evi-
dence, to argue their positions orally, and to file briefs.
Based on the entire record, including my observation of wit-
ness demeanor,3 and after carefully considering the posthearing
briefs filed by the Respondent and the General Counsel, I make
the following

1 Unless otherwise specified, all dates herein refer to 2009.
2 The complaint alleges that Sherrie Cvetnich’s assertedly protected
concerted activity occurred in the presence of Teresa Burge and Eric
Cvetnich. I find, infra, that the activity did not take place in Eric Cvet-
nich’s presence.
3 In the absence of a more detailed discussion as to a particular issue
of fact, and in general, my findings as to disputed facts include a con-
sideration of the demeanor of a witness during testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 304
FINDINGS OF FACT
I. JURISDICTION
The parties, at hearing, stipulated to the factual jurisdictional
allegations contained in the complaint. Based on such, I find
that at all material times the Respondent, a corporation with an
office and place of business in Battle Creek, Michigan, has
been engaged in the management and rental of an office build-
ing located in Battle Creek, Michigan, known as the Heritage
Towers (Heritage), the only facility involved in this proceeding.
During the calendar year 2009, the Respondent, in conducting
its business operations, derived gross revenues in excess of
$100,000, of which in excess of $25,000 was derived from
Securitas, Inc. (Securitas) and Midwest Communication Ser-
vices, Inc. (Midwest).
Securitas is engaged in the business of providing security
services, and leases an office in Heritage. During the calendar
year 2009, Securitas performed security services valued in ex-
cess of $50,000 in states other than the State of Michigan.
Midwest is engaged in the business of radio broadcasting, and
leases space in Heritage. During the calendar year 2009, Mid-
west received gross revenues in excess of $100,000, held mem-
bership in and is a stockholder of Broadcast Music International
(BMI), and advertised various nationally sold products includ-
ing the vehicles of General Motors Corporation, Ford Motor
Company, and Toyota Motor Company, music concert tickets,
and prepared food products sold by McDonalds Corporation
and Subway restaurants. Based on these stipulated facts, I find
that the Respondent has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent owns and operates Heritage Towers, a high-
rise office building and banquet facility in Battle Creek, Michi-
gan.4 Linda Tessin (Tessin) was hired as the operating manager
of Heritage in 1994, a time when the building was owned by
Art Dore. Tessin’s son, Eric Cvetnich, was also hired by Art
Dore, to perform building maintenance work. In 1995, Tessin
hired her daughter, Sherrie Cvetnich, to clean the common
areas of Heritage and the office suites, and to work at banquets,
setting up and “tearing down” the banquet room for functions,
working in the kitchen, and bussing tables during parties.
Also in 1995, Tessin hired Teresa Burge5 to work at ban-
quets on weekends. Burge testified that her work consisted of
“setting up and tearing down the parties.” Tessin hired Burge
as a full-time employee in October 2008. Burge, in addition to
working banquets, began to clean the building’s lobby and
main floor. Tessin scheduled employees for work, hired bar-
tenders for banquets, and chose contractors to perform work in
the building.
In August 2008, Art Dore sold Heritage to the Respondent, a

4 The building is referred to on the record sometimes as “Heritage
Towers” and other times as “Heritage Tower.” Throughout the deci-
sion, the building is referred to as either “Heritage Towers” (the name
utilized in the complaint) or just “Heritage.”
5 Burge is not a relative of Tessin.
real estate holding company, of which 50 percent is owned by
Timothy Hogan.6 Hogan testified that he first did a “walk-
through” of Heritage in 2007, before the Respondent purchased
the property from Dore. But he later testified that the walk-
through occurred about “two months before the acquisition,”
which would have put the walk through in June 2008. The Re-
spondent’s counsel asked Hogan if he did the walk-through
alone or with somebody. Hogan first answered “alone.” Then
Hogan testified, “Actually, I was escorted by someone that
worked for Art Dore, and I believe it was his son-in-law.” Still
again, Hogan testified that Tessin was “with me for part of the
time, just not the entire time.”
Hogan’s testimony as to his initial walk-through of Heritage
centered on his appreciation for a bank vault that he discovered,
and its condition. In short, Hogan testified that he was awe-
struck by the “beauty” of the bank vault, that Tessin, who ac-
companied him to the vault, told him that they had “started
taking some of the brass out,” “because Art Dore was a guy
who wouldn’t give them any money to work on stuff.” Hogan
testified that he told Tessin, “Please, I’m buying this building.
Whatever you do, don’t hurt this any more.7 I love this.”8
Hogan testified that he again visited Heritage with Ben Bates
“either before or after I acquired the building. . . .” According
to Hogan, Bates “also fell in love with the bank vault.” Hogan
further testified that he observed the bank vault was in substan-
tially similar condition to his earlier visit.
Initially after the sale, the Respondent utilized Mean Ben
Syndicate LLC (Mean Ben), owned by Ben Bates, to manage
the building, but retained Tessin as the building manager. Tes-
sin showed Bates around the property and introduced him to
Sherrie Cvetnich, Teresa Burge, and Eric Cvetnich, telling
Bates that Sherrie Cvetnich and Burge were banquet staff, and

6 Hogan testified that he “believes” the purchase took place in Au-
gust 2008.
7 Tessin testified that, in fact, she did have a conversation with Ho-
gan, in which Hogan told her not to remove additional metal from the
bank vault, but that it was before Hogan actually purchased the build-
ing, and that she couldn’t remember whether or not he ever also told
her this after becoming owner of Heritage.
8 The Respondent’s counsel simply asked Hogan “what condition
was the vault in?” Hogan’s answer took up almost an entire page of
transcript, and included the following: “It was in about 75 percent
internally. The external, if I might give an explanation—as you walk
up to it, it’s a gigantic bank vault with a 30,000-pound door and there’s
a gated door that has to be opened once you open the 30,000-pound
door that lets you into a safety deposit box room, I would call it, which
is—there’s probably thousands of—there’s probably a thousand safety
deposit boxes, if I were to guess, with very beautiful, ornate brass
doors. And I went in and I was—I remarked at just how unbelievably
cool and beautiful this was. It was just a work of art. It was beautiful.
It was put in before they put the rest of the building around it. And I
did notice that, as I started walking through, there was a room in the
back corner that was just a concrete room. And I asked what this was,
and they said, ‘well, it was another vault room, but, you know, we
started taking some of the brass out of here’ because Art Dore was a
guy who wouldn’t give them any money to work on stuff. And I said,
‘Please.’ I said, ‘I’m buying this building. Whatever you do, don’t
hurt this any more. I love this.”
RANDOM ACQUISITIONS, LLC 305
Eric Cvetnich the maintenance supervisor.9 Tessin managed
Heritage on a day-to-day basis, including signing and issuing
paychecks and checks for expenses on a checking account
maintained by Mean Ben. Tessin continued with her other
duties including scheduling employees, and arranging for bar-
tenders to work banquets.
In June 2009 the Respondent, in the person of Hogan, re-
placed Mean Ben in the management of Heritage. Hogan10
visited Heritage in June. He and Tessin went to a local bank,
and opened a checking account for the Respondent.11 Tessin,
following Hogan’s instructions, used this account to pay build-
ing expenses and issue payroll checks,12 instead of the prior
checks which bore the Mean Ben account information. Tes-
sin’s duties did not change under the Respondent’s stewardship.
On a later visit to Heritage, about September 19, Tessin intro-
duced Sherrie Cvetnich and Burge to Hogan, telling him they
were employees.13 Hogan testified that during this visit he
noticed that the vault “was significantly—I’ll use the word
‘destroyed’.” Hogan testified that most of the brass was miss-
ing, and that he again asked Tessin to stop removing the
brass.14
Subsequently, Hogan asked his long-time friend Hogarth Jo-

9 Testimony of Tessin. Apparently Tessin believed that Eric Cvet-
nich’s title was maintenance supervisor, although Eric Cvetnich did not
testify as to such. In any case, as discussed infra, there is no evidence
that Eric Cvetnich ever supervised another employee.
10 Hogan lived in Florida and did not regularly appear at Heritage.
11 Hogan became an additional signer on the account in September.
12 In response to questions asked by the Respondent’s counsel on
cross-examination, Sherrie Cvetnich, Burge, and Tessin testified that
they did not receive IRS W-2 forms for 2009 from the Respondent.
13 Sherrie Cvetnich testified that Tessin introduced her and Burge to
Hogan “as employees,” but didn’t mention what work they performed.
Burge testified that Tessin introduced her and Cvetnich to Hogan, but
didn’t mention their employment status. Hogan testified that Tessin
introduced Burge and Sherrie Cvetnich to him, telling him that they
worked the banquet hall on weekends, and that Sherrie Cvetnich “had a
cleaning company and they clean for tenants.” Hogan also testified he
became aware that Sherrie Cvetnich was working at Heritage during the
conversation. Thus, by these accounts, Hogan became aware of their
status as employees at least by this conversation in September.
14 Hogan’s answers to his counsel’s questions as to this trip ranged
far beyond the questions and became a moving narrative of his thoughts
on various subjects, detracting from his credibility as a witness. For
example, the Respondent’s counsel simply asked Hogan whether he
observed the vault on this visit to Heritage. Hogan’s answer, verbatim,
is as follows: “I believe the next time I visited the vault—I’m not
exactly sure when the next time I visited the building was. I know that
my wife and I traveled to Battle Creek in September, in late September
of ’09. She and I were in New York. We decided to fly to Battle Creek
together. She had never seen the building and I wanted to show her the
building. I got in on a Friday, I believe, midday. One of things I had to
do was I was not yet a signer on the Random Acquisitions account that
was opened. It was opened up remotely. I faxed a driver’s license and
our corporation paperwork in June, I believe, and Linda had gone over
and opened the account. She was our registered agent in Michigan.
And I became a signer on the account that Friday.” Hogan’s long re-
sponse to his counsel’s question, never reached the subject matter of the
question.
seph15 to accompany him on a visit to Heritage to look over the
property. According to Joseph, Hogan told him that he had
purchased a “20-story skyscraper,” and Joseph replied, “you
got to be kidding me.” Joseph testified that the two of them
had been trying to get together for a number of years, and Ho-
gan said, “Could you come: You want to meet me in Detroit?
You know, take a look at the building and tell me what you
think.” Hogan and Joseph traveled to Heritage on September
25. Hogan returned to Florida on October 1, and Joseph re-
mained until October 3. Upon their arrival at Heritage, Hogan
introduced Joseph to Tessin, telling her that Joseph “was there
to help us get a handle on things.”
According to Tessin, Joseph walked around the building dur-
ing his stay, and asked a lot of questions about it. Tessin de-
scribed the questions as “How the HVAC worked, how the
boiler system worked, those kind of questions.” As to some of
these questions, Tessin directed Joseph to Eric Cvetnich, and
heard Joseph and Eric Cvetnich talking about “general mainte-
nance, repairs of the building.” According to Tessin, Joseph
told Tessin, during his visit, that she did banquets well, but as
to all other responsibilities, she had to “go through him.” Tes-
sin testified that, nevertheless, her duties did not change.
According to Hogan, during his visit to Heritage, he became
concerned over the state of the building. He testified as to the
upper floors of the building: “complete utter neglect, tiles
down, mold on the ceilings . . . water leaks, frozen pipes, never
mitigated.” Hogan asked Tessin about the state of the upper
floors, and she replied, “We don’t have the money to do any-
thing up here and we don’t have the manpower to work on this
stuff.”16
Tessin testified that in early October, Joseph called an em-
ployee meeting in an office that he was temporarily occupying
in the building. Present for the meeting besides Tessin and
Joseph were Sherrie Cvetnich, Burge, Eric Cvetnich, and Zach
Cvetnich,17 at times. Tessin testified that during the part of the
meeting she attended, Joseph told the employees that the Re-
spondent had no money, that the hours of Sherrie Cvetnich and
Burge needed to be cut, and that employees needed to make the
most of the limited resources,18 suggesting that employees
make sure that the trash containers are full when trash collec-
tion was scheduled. Tessin testified that after the meeting she
gave Joseph written job descriptions for each employee, includ-

15 Joseph testified that he and Hogan have been friends for over 20
years, attended college together, and have had various types of business
relationships over the years. Tessin testified that Joseph eventually
maintained an office in the building, and instructed her that as to any
business other than banquets, “she needed to go through him.” Hogan
testified that he instructed Joseph to carry out management decisions
such as the asserted decisions to lay off employees. Joseph testified
that he called an employee meeting at Heritage, and questioned em-
ployees as to their jobs. Clearly, Hogan designated Joseph as a 2(11)
and a 2(12) agent of the Respondent, and I so find that he occupied said
status. No party contended to the contrary.
16 Credited, uncontroverted testimony of Hogan.
17 Tessin testified that Eric Cvetnich’s son, Zach Cvetnich, was a
temporary employee, that he was hired in early October 2009, and that
he would have, but didn’t, receive his first payroll check on October 14.
18 Only Tessin testified that Hogarth talked about cutting employee
hours.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 306
ing Sherrie Cvetnich, Burge, Eric Cvetnich, Zach Cvetnich, and
Tessin.
Burge and Sherrie Cvetnich also testified as to the October
employee meeting with Joseph. Counsel for the acting General
Counsel asked Burge what she remembered Joseph saying at
the meeting, and she testified that he said he was there to make
sure “everything was running smoothly,” that “everybody was
doing their job,” and to make sure the dumpsters were full on
“garbage day.” She was not specifically asked, and did not
testify, as to whether he said anything about the hours of Sher-
rie Cvetnich and Burge being cut, as testified to by Tessin.
Eric Cvetnich testified that he also attended the employee
meeting. According to Cvetnich, Joseph asked the employees
for their job descriptions, and each employee told Joseph what
their work consisted of. Eric Cvetnich told Joseph that he per-
formed maintenance work, and described his maintenance du-
ties. Sherrie Cvetnich and Burge told Joseph that they worked
parties and banquets and also mopped floors, cleaned, and
painted.19 Eric Cvetnich testified that subsequent to the meet-
ing, he received work assignments from both Tessin and Jo-
seph, and that Joseph instructed him to inspect a leak in a
chimney flue.
Sherrie Cvetnich testified that at the meeting, Joseph said
that she and Burge should continue with their duties, that the
dumpster had to be full of trash for the scheduled pickup, and
that even though the Respondent had no money, that if they
absolutely needed some, “”it would just take one phone call and
a check would be here.”20 Sherrie Cvetnich was not specifical-
ly asked, and did not testify, as to whether Joseph said anything
about employee hours being cut, as testified to by Tessin.21
Joseph testified that he did hold an employee meeting in late
September, but was not asked any questions about what was
said during the meeting, and offered no testimony as to any
details.
Joseph ended his stay at Heritage on October 3, and flew to
Pensacola, Florida. Joseph testified that he traveled to Pensaco-
la, where Hogan was located, because, first, he wanted to look
at some computer equipment he had stored in a warehouse
owned by Hogan’s father and, second, because he wanted to
talk to Hogan about “events going on in the building.” Joseph
took several documents that concerned him from Tessin’s files
at Heritage to show to Hogan, including a check issued to an-
other of Tessin’s sons, Michael Cvetnich, for work at Heritage
performed by C.J. Jones Construction (Jones), a credit applica-
tion that Tessin had filed with Kendall Electric (Kendall) that
contained Hogan’s social security number and apparent signa-

19 Credited testimony of Eric Cvetnich. Cvetnich’s testimonial de-
meanor was impressive, including his generally direct and non-
argumentative answers to questions of all counsel.
20 Hogan testified that in the fall of 2009, the financial condition of
Random Acquisitions was “dire, at best,” that there was not enough
income “to cover the debt service,” and he intended to cut costs.
21 Respondent’s counsel, in his brief, asserts that Sherrie Cvetnich
and Teresa Burge both testified that Joseph said nothing at the meeting
about their hours being cut. In fact, while neither testified that Joseph
said anything about hours being cut at the meeting when asked what
was said at the meeting, neither testified that he didn’t talk about hours
being cut and, indeed, neither was asked that specific question.
ture, an application for credit with United States Lumber dated
June 4, and an Internal Revenue Service document assigning an
Employer Identification Number to “Random Acquisitions
LLC,” which listed Tessin as a “Sole MBR.”
Joseph and Hogan both testified that they discussed the prob-
lems they perceived at Heritage and the status of Tessin and the
employees. According to Hogan, the primary conversation
between the two occurred about October 3, when Hogan picked
up Joseph at the Pensacola, Florida airport.22 According to
Hogan and Joseph, Joseph told Hogan that there were serious
problems at Heritage including problems with employees, prob-
lems with potential fraud, and liability issues related to building
maintenance. Joseph showed Hogan the documents he had
taken from Heritage, and discussed each with him.
Some of the documents involved a check Hogan had issued
to Consumer’s Energy for about $6000 in response to a power
shutoff notice the utility had sent to Heritage, but which was
returned by the bank for insufficient funds, and a check on the
Respondent’s account issued about the same time to another
son of Tessin, Mike Cvetnich, for $3419 for work done in re-
spect to a damaged canopy at Heritage. Hogan testified that
Tessin had not informed the Respondent of the check written to
Mike Cvetnich, and this caused the check issued to Consumer’s
Energy to be returned by the bank.23 Joseph testified that he
became further concerned about the check issued to Mike
Cvetnich, because Tessin had originally issued a check for the
canopy work to Mike Cvetnich’s employer, C.R. Jones, Con-
struction, because Tessin’s home phone number appeared on
the C.R. Jones invoice, and because another contractor, “CSE,”
had submitted a slightly higher, but competitive, bid24 to Tessin
for the work, but which included repair of the canopy, while
C.R. Jones’ bid simply provided for the hauling away of the
damaged canopy, but not repairing it.
Tessin testified that she had accepted the bid of C.R. Jones
even though CSE had told her that they could fix the canopy
and “make it look right,” because her son Michael Cvetnich’s
employer, C.R. Jones, told her that in “their opinion [the cano-
py] could not be attached back to the building.”25 As to the
duplicate checks,26 Tessin testified that she originally cut the
check to C. R. Jones, but that Michael Cvetnich asked her to

22 When asked the Respondent’s counsel when his conversation with
Hogarth occurred, Hogan answered, “I know for a fact Mr. Joseph
arrived on the 3rd to [sic] Pensacola.”
23 Hogan testified that that when the check was written to Consumers
Energy, he had personally instructed Tessin to deliver the check before
4 p.m., to avoid the power being shut off, and she had promised to do
so. Hogan further testified that when he learned that a second check for
a large amount had cleared the bank, thus leaving insufficient funds for
the Consumers Energy check, he called Tessin and asked for an expla-
nation, and that Tessin replied that she didn’t “know anything about
that.”
24 CSE’s bid for repair of the canopy was $3556. The bid from C.R.
Jones was $3419.
25 Presumably, the C.R. Jones representative who told her the canopy
could not be repaired was her son, Michael Cvetnich, although Tessin
did not testify as to a name. Tessin testified, “when C.R. Jones came,
got up on the canopy, their opinion was it could not be attached to the
building.”
26 Only the check made out to Michael Cvetnich was cashed.
RANDOM ACQUISITIONS, LLC 307
make out the check to him because Jones was unavailable and
Cvetnich’s crew “needed to be paid.” Tessin testified that her
home phone number appeared on the invoice from C. R. Jones
because her son, Michael Cvetnich, lives at her residence.
Joseph also showed Hogan a credit application that Tessin
had filed with Kendall Electric on June 4.27 Hogan’s apparent
signature appeared on the document as “Guarantor,” and the
apparent signatures of Sherrie Cvetnich and Burge appeared as
witnesses. Hogan told Joseph that the signature on the docu-
ment was not his. Tessin testified that she, in fact, “put Tim’s
name down on there” because Kendall required the paperwork
in their file in order to grant Heritage wholesale prices for sup-
plies for the building, that she had done the same with other
suppliers, and that she had also engaged in that practice when
Art Dore owned the building.
Sherrie Cvetnich testified that she did, in fact, sign the doc-
ument as a witness. Burge testified that the signature on the
credit application was not hers.
Finally, among the documents that Joseph brought with him
to show Hogan, was an IRS form assigning an Employer Identi-
fication Number (EIN) to a business listed as follows: “Ran-
dom Acquisitions LLC Linda Tessin Sole MBR.” Tessin testi-
fied, as to this IRS document that it was for a business she was
setting up, called “Silks by Design,” to make and sell center-
pieces for the banquet center. She testified that she had dis-
cussed her idea of the business with Hogan “as a good way of
income for the building,” and he had agreed to it.
During direct examination, the Respondent’s counsel asked
Hogan whether, in their conversations in Florida during early
October, Hogan said “anything to Mr. Joseph about terminating
employees?” I sustained counsel for the Acting General Coun-
sel’s objection to the leading question. Counsel for the Re-
spondent then, without objection, asked Hogan just to testify as
to what he and Joseph said during the conversation. Hogan
began a lengthy answer to the question as follows, verbatim:

“I said, based on my trip with him to Battle Creek where I
saw that the building was improperly being run, the way
that—I mean, if I may, when I was there, the check that was
payable to Consumers Electric (sic), it was issued when I was
there on the trip with Mr. Joseph prior to me leaving to go to
Florida. There was a disconnect notice that came while I was
there. That disconnect notice said that if 6,000 and some odd
dollars was not received the next day, that it did not post—no,
it had to post that day at Consumers Electric (sic). And I can
remember at that point that I had Hogie’s wife, Darci, now
that I was. . . .”

I then sustained counsel for the Acting General Counsel’s ob-
jection, as it appeared that Hogan was simply relating a stream
of consciousness rather than making a serious attempt to an-
swer the question.
The Respondent’s counsel then approached the question for

27 Joseph also showed Hogan a similar credit application for U.S.
Lumber. Tessin testified that she “made out” this document. Tessin
signed this application with her own name, as general manager of Her-
itage, but she also signed Hogan’s name as “principal/proprietor/
guarantor” in the credit report authorization section of the application.
a third time, asking Hogan, “What did you say to Mr. Joseph in
that conversation in October of 2009 about what you observed
at the building upon your visit?” Hogan answered, “I said to
him that I was embarrassed. I was disappointed that I was an
absentee landlord. I said that the folks—that I made a huge
mistake by trusting Linda Tessin. When I first met her, she
seemed like a sweet lady. And that she actually asked me when
I bought the building.” I then, again, sustained an objection by
counsel for the Acting General Counsel. The Respondent’s
counsel tried again, and asked Hogan, “What else did you say?”
Hogan answered, “I told him that we need to fire these people.
That’s what I told him. I said, We need to fire these people. . . .
My asset is getting destroyed. . . . My company’s being
fleeced.”
Counsel for the Acting General Counsel then, on cross-
examination of Hogan, revisited the subject of the Heritage
employees’ job status, and asked Hogan, “These employees
were terminated on October 16th; isn’t that correct?” Hogan
responded that it was not correct. Counsel for the Acting Gen-
eral Counsel asked, “When were they terminated?” Hogan
answered, “Sherrie [Cvetnich] and Teresa [Burge] were termi-
nated a week or so prior at my instruction to Mr. Joseph.” In
response to a later question, Hogan answered, “Two employees
were terminated, Sherrie [Cvetnich] and Teresa [Burge] were
terminated the 5th or 6th of October.” In response to a subse-
quent question of counsel for the Acting General Counsel, Ho-
gan testified that the discharge decision was made because the
Respondent couldn’t afford them and because of fraud, but
mainly the fraud. Hogan cited Tessin’s actions, and testified,
“. . . Linda [Tessin] was involved with forging checks, opening
up what I thought was a separate Random Acquisitions, LLC,
her as sole managing member. Fleecing the company by trans-
ferring funds to every family member she had, lying to me
about that.”
Joseph was explicitly asked by the Respondent’s counsel, as
to a conversation between Joseph and Hogan in Pensacola
shortly before October 5, what was said between the two of
them as to the employment status of the employees at Heritage.
Joseph answered, “The employment status is that he did not
want Sherrie [Cvetnich] and Teresa [Burge] working there
anymore. Eric [Cvetnich] was uncertain at that point.” Joseph
was then reminded that the question called for his testimony as
to what actually was said, and instructed, by the undersigned,
“If you have a firm recollection of what he said, I don’t care if
you remember every vowel and every period and every comma,
but if you have a firm recollection of what he said, so testify.”
Joseph responded, “I do not have a firm recollection exactly
what was said. No sir.”
Nevertheless, Joseph testified that following his conversation
with Hogan about employee job status at Heritage, he had a
conversation with Tessin on October 528 about the status of
Sherrie Cvetnich and Burge. Joseph testified that he told Tes-
sin that “this was the last week for Teresa and Sherrie.” Ac-
cording to Joseph, Tessin only responded “Okay,” and did not

28 Joseph eventually testified that the conversation with Tessin was
later on the same day as his conversation with Hogan as to employee
job status.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 308
ask for reasons for the decision.
As to Joseph’s phone call, Tessin testified29 that about Octo-
ber 5 or 6; she received a telephone call from Joseph, in which
he informed her that Hogan didn’t feel that Sherrie Cvetnich
and Burge were needed and that “we could let them go.”30
According to Tessin, she responded that the two employees
didn’t need to clean in the building, but she needed them for
banquets, and that Joseph replied that “we had to cut their hours
to 20 per week,” and they were to work banquets only. Tessin
testified that about a day or two later she informed Sherrie
Cvetnich and Burge that their hours were cut to 20 and they
would only work banquets. Sherrie Cvetnich testified31 that
Tessin told her that her hours were reduced, and she would only
be working banquets. Burge also testified32 that Tessin in-
formed her that her hours would be cut to 20 per week.
Also on October 5, Joseph’s wife, Darci Joseph, acting in a
secretarial capacity for him, sent an email to Tessin asking for
information as to the Heritage internet website, including the
name of the internet company which was hosting the Heritage
website and the passwords. About 3 hours later, Tessin
emailed the following response to Darci:33 “To my knowledge
we are paying no one to host the website. It was set up about
12 years ago. Looked for a file after all my staff was laid off.
But it’s empty. Sorry I can’t be of more help with this.”34
The Respondent’s counsel, on cross-examination asked Tes-
sin about this email response, which appeared to acknowledge
the layoff of employees. In answer, Tessin testified that she
didn’t recall sending the email and that the “from” email ad-
dress on the message was not hers. Then, after so testifying
that the email address was not hers, Tessin changed her testi-
mony to “It may be—this is my email address, but anybody
could send that off my computer.” Later in the cross-
examination, Tessin finally admitted, “I’d say I’ve seen [the
email message] before.”
On re-direct examination by the counsel for the Acting Gen-
eral Counsel, when asked about the email message, Tessin testi-
fied that the layoffs she was referring to in the email occurred
12 years earlier, when prior Heritage owner Art Dore laid off
her staff. Tessin testified that she had looked for a file as to the
website at the time Dore laid off her staff and couldn’t find it,
and that the staff she referred to in the email as being laid off
was the staff from 12 years ago, not the current employees.
Tessin offered no further explanation as to why she would men-
tion, in her email, the asserted layoff from 12 years earlier.
On October 7, Darci Joseph, acting in a secretarial role for
Joseph, sent Tessin an email informing her that Joseph would
return to Florida, that no further information was then needed

29 On rebuttal, called by counsel for the Acting General Counsel.
30 Yet, Tessin had earlier testified, “there was never any talk of any-
one being laid off that I remember.”
31 On rebuttal, called by counsel for the Acting General Counsel.
32 On rebuttal, called by counsel for the Acting General Counsel.
33 Tessin’s email appears to be a direct response to Darci’s earlier
message. Thus, it follows Darci’s by about 3 and a half hours, and the
subject line shows as “RE” the same subject line as Darci’s.
34 In this email, and others in the record sent by Tessin, for whatever
reason, the punctuation used at the end of sentences appears as “.?”
rather than “.”.
as to “employees, etc. that work there,” and that Joseph had
told her (Darci) that he will return to Battle Creek by that Fri-
day “and will immediately address those issues upon his re-
turn.” The Respondent also introduced what appears to be
Tessin’s email response to Darci’s message, sent about two and
a half hours later as follows (verbatim): “If my employees are
being dismissed it needs to be done for I work a 20 hour day
and they work 16 hr days. I would like an answer.”
When questioned by the counsel for the Acting General
Counsel as to what she meant by her email reply to Darci Jo-
seph, Tessin testified, “I was upset when I got [Darci Joseph’s]
email. That [my reply] makes no sense at all.” When asked
why she was upset, Tessin testified, “To think they were going
to take all my help away from the banquet floor.” Then, coun-
sel for the Acting General Counsel asked, “Well, when did they
say they would do that?” Tessin answered, “I think when I
had—when I had a conversation with Mr. Joseph on cutting
their hours, I said I could cut their hours, but I could not, not
have them at all.” Tessin was not asked, and did not explain,
why she would have still been upset on October 7 that “they
were going to take all my help away.”, inasmuch as she had
earlier testified that on October 5 or 6 Joseph had acceded to
her request to keep Burge and Sherri Cvetnich at work 20 hours
a week for banquets.
Joseph returned to Heritage from Pensacola on Sunday, Oc-
tober 11. A few days later, on October 15, Joseph noticed a
deputy sheriff for Calhoun County Michigan,35 walking around
the Heritage premises. According to Joseph, a few minutes
later Tessin told him that she was in “big trouble.” Joseph ap-
proached the deputy, who was sitting in one of the offices to
inquire as to his presence. The deputy told Joseph he was there
to seize assets of the Respondent, pursuant to a garnishment
order of the court, and showed Joseph the order. The case title
in the order was styled Chase Bank vs. Random Acquisitions,
and the balance due Chase, on the order, was $11,155.50. Tes-
sin told Joseph that the debt was her personal debt, and she
would pay it. Tessin further testified that the debt was as to her
credit card,36 that she had received a garnishment as to her
wages, but had never given the garnishment to Hogan.
While the deputy was present at Heritage, Hogan, in Pen-
sacola, called Tessin and asked her “why there was a sheriff in
our building seizing Random Acquisitions’ assets?” Tessin
replied that it was a mistake and she was going to get it taken
care of. Hogan responded that “this is a huge problem. This is
not our debt. You have to take care of this . . . we cannot afford
to lose the assets that are in our building because it sounds like
this guy’s just going to start loading his truck.” Hogan asked
Tessin “if she was going to get the money together to satisfy
the judgment in time to prevent the officer from removing [the
Respondent’s] property.” Tessin replied that she was “going to
be on the phone, calling people, trying to get money together.”
Eventually that day, Tessin gave the deputy $2000 towards
the debt and the deputy left the premises. The deputy’s court

35 Heritage is located in Battle Creek. Battle Creek is located in Cal-
houn County, Michigan.
36 She asserted, in her testimony, that there was some type of credit
card fraud involved in the debt.
RANDOM ACQUISITIONS, LLC 309
receipt however, signed by both the deputy and Tessin, and
contains the following, apparently in the deputy’s handwriting:
“To pay $2,000 today. To pay $7,000 on 10/16/09 to keep
assets in the building.” But, in answer to a question on cross-
examination, Tessin testified that she did not tell the deputy on
October 15, that she was going to pay the balance owed on the
judgment the next day.
The following morning, October 16, Joseph called Hogan
and told him that Tessin wasn’t going to pay the deputy the
balance owing on the garnishment.37 Hogan then called Tessin
and asked her if she told Joseph that she was refusing to pay the
deputy the balance owing. Tessin replied that it was true, that
her attorney told her that it was not her debt, and she didn’t
have to pay it. The deputy returned to Heritage on October 16
to collect the balance owing on the debt, but left around mid-
day. There is no evidence that he took any of the Respondent’s
property or collected the balance due on the garnishment order.
The Respondent failed to pay the Heritage employees on
Wednesday, October 14, which was the scheduled payday.38
Tessin testified that she had also held the checks for the previ-
ous two paydays, and that she spoke to Joseph on October 15
about the situation. Joseph told her to figure the checks, figure
the payroll, and print out the checks. Tessin testified that after
completing those tasks, “I went to his [Josephs’] office and we
did some calculating to see if there was money in the account to
pay payroll,” and there was sufficient money.39 According to
Tessin, Joseph then told her that she would have to hold the
October 14 paychecks as it would make the Respondent “really
close on money,” but that employees could cash the earlier
paychecks. Tessin testified that she, thus, “held” the employ-
ees’ paychecks that had been scheduled for October 14.
On October 16, Tessin received telephone calls from Sherrie
Cvetnich and Burge asking about their paychecks. Tessin told
them they would have to speak to Joseph. Sherrie Cvetnich
called Burge, told her she was going to Heritage to see if their
paychecks were ready and asked if she wanted to go. Burge
told Tessin she would meet her there. Burge and Sherrie Cvet-
nich then met in Tessin’s office. Also present were Tessin, and
Eric Cvetnich.40 Sherrie Cvetnich asked Tessin where their
paychecks were. Tessin replied that she didn’t know.
Sherrie Cvetnich and Burge then walked into Joseph’s office
and asked him about their checks. According to Burge, Sherrie
Cvetnich told Joseph that they had families and bills, and need-
ed their checks, and Joseph replied that he didn’t have their
checks. Sherrie Cvetnich told Joseph if they didn’t get paid,
she would “call Channel 3 News, the Labor Board, and Michi-
gan Hour and Wage.”41

37 Joseph testified that Tessin told him this on October 16. Tessin
testified that she didn’t remember said conversation with Joseph on
October 16.
38 The Respondent paid its Heritage employees every other Wednes-
day.
39 Tessin testified that her calculations were based on paychecks for
herself, Burge, Sherrie Cvetnich, Eric Cvetnich, and Zach Cvetnich.
40 Tessin’s husband, Robert Tessin, was also present. Robert Tessin
was not a witness at the hearing.
41 Sherrie Cvetnich was questioned about this conversation a number
of times, and her answers were not exactly the same each time. The
According to Burge, Sherrie Cvetnich also told Joseph that if
they didn’t get paid then “we’re going to tear down the job that
we already did.”42 Sherrie Cvetnich testified that she told Jo-
seph, “if I wasn’t going to get my paycheck, that I would go up
to the second floor, which is the banquet facility, and tear it
down.”43 Cvetnich testified that she meant she was going to
“undo” the work they had already performed to set up for a
banquet, including taking off the linens, tablecloths, napkins,
and place settings.
Joseph testified that Sherrie Cvetnich said she wanted her
paycheck, and he replied, “We’re working on it.”44 Asked a
second time by the Respondent’s counsel as to what Sherrie
Cvetnich said to him, Joseph testified (verbatim), “She said she
wanted her f***ing paycheck45 or she was going to go upstairs
and trash the dome,46 the tables.47 She was going to tear
them—turn them over.48 She was going to trash the dome, is

first time she answered a question as to the conversation, she testified
that she “asked him if we were getting our paychecks today, and he
stated no. And I told him that I needed my paycheck because I have
bills due, shut-off notices and stuff, and he said he wasn’t authorized to
sign paychecks. I stated to him that Linda Tessin was. And he hesitat-
ed, and I told him that if I wasn’t going to get my paycheck today, that I
would call OSHA, the health department, anybody I could think of
because of the working conditions I have worked in.” Then, when
asked who else she remembered saying she was going to call, Sherrie
Cvetnich answered, “Channel 3 News, Battle Creek Enquirer, Labor
Board.”
42 Burge testified that “tear down” is a phrase used in the banquet
business to refer to the work performed after a banquet to clean up and
put away the various items used during the banquet. In this case, Burge
testified that she understood Sherrie Cvetnich’s usage of “tear down” to
mean undoing the work they had already completed for scheduled
banquet, including putting back the napkins, glasses, silverware, linens,
and chairs. In other words, undoing the work that they had already
performed, but were not being paid for.
43 She initially testified that she made the “tear down” comment a
few minutes later, after returning to Tessin’s office. Later in her testi-
mony, she said she may have also used this expression to Joseph, in
Joseph’s office.
44 Joseph was asked by the Respondent’s counsel, “What was the
substance of the conversation you had with Sherrie Cvetnich.” Joseph
answered, “Sherrie came in. She said she wanted her paycheck. She
said she wanted—she goes, ‘I want to get paid,’ is what she said.
Something to that effect.”
45 Inasmuch as Sherrie Cvetnich eventually testified she did not re-
member whether she used the “f” word, and Joseph testified that she, in
fact, had used the word, I credit Joseph as to his testimony that Sherrie
Cvetnich used the “f” word in talking to Joseph. I note that when first
asked by the counsel for the Acting General Counsel whether she used
“obscene words or profanity, Sherrie Cvetnich asked if this meant
“cussing and stuff,” and denied that she had, but then testified that she
didn’t remember whether she had used the “f-word.”
46 Area of Heritage where the banquets take place.
47 On cross-examination, the counsel for the Acting General Counsel
asked Joseph whether it wasn’t possible that instead of saying “trash
the dome,” Sherrie Cvetnich said, “tear down the dome?” Joseph re-
plied, “She said, “trash the dome.”
48 Here, I credit Sherrie Cvetnich and Burge to the effect that she
threatened Joseph that she would “tear down” the job they had already
set up in the banquet facility, and that this simply meant they would
undo the work that had already performed, but had not been paid for.
In addition to my conclusions that Burge and Sherrie Cvetnich were
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 310
what she said. She was with her little boy. I shouldn’t say that.
Sorry.”49 Joseph testified that Cvetnich was speaking in an
angry tone, and that he considered what Sherrie Cvetnich said
to be a threat against the building. According to Joseph, Sher-
rie Cvetnich told him she wanted paychecks for everybody.
Joseph testified that after listening to Cvetnich, he called
Hogan. Burge testified that she heard Joseph tell Hogan, on the
phone, that she and Sherrie [Cvetnich] “were in there demand-
ing our paychecks,” and that after speaking to Hogan, Joseph
hung up the phone and told Burge and Sherrie Cvetnich that
“we didn’t have no money and we weren’t getting our money
for a long time.” According to Burge, she and Sherrie Cvetnich
then walked back to Tessin’s office.
According to Sherrie Cvetnich’s testimony, Joseph called
Hogan immediately after Cvetnich threatened to call the media
and government agencies, but that all she recalled Joseph tell-
ing Hogan in the phone conversation was that Cvetnich was in
his office demanding her paycheck, and threatening to call
“Channel 3, OSHA, health department, Battle Creek Enquirer.”
Sherrie Cvetnich also testified that she didn’t remember if Jo-
seph said anything to Hogan about Burge being in his office.
Joseph testified, upon being asked as to his conversation
with Hogan on direct-examination by the Respondent’s counsel
that he told Hogan that “Sherrie is here. She is screaming,
yelling and swearing, and what do you want me to do? She’s
threatening to damage the building. What do you want me to
do?” Joseph further testified that Hogan replied, “I’m calling
the cops.” On cross-examination by the counsel for the Acting
General Counsel, when asked if he (Joseph) told Hogan what
Sherrie Cvetnich said, Joseph testified that he didn’t know the
exact words he used. He also testified, on cross-examination,
that he told Hogan “that Sherrie was in the office and they want
their paychecks now.”
According to Hogan, Joseph actually called him twice. The
first time, Joseph told him that “things are getting crazy down
here,” and that he would call him back. A few minutes later,
Hogan received a second call from Joseph. Hogan testified that
he could hear screaming and shouting in the background, and
somebody using the “f-word,” that he asked Joseph if every-

generally reliable witnesses, and Joseph, generally, less so, here Joseph
actually begins to use the word “tear,” in describing what Sherrie Cvet-
nich threatened, before abruptly changing in mid-sentence to “turn.”
Further, from the testimony of Burge and Sherrie Cvetnich, it is clear
that in the context of their work, “tear down” means the process of
removing the banquet trappings and setups. In the context of banquet
work, the usage of “tear down” would have been natural and expected.
49 At this point I asked Joseph whether he was testifying as to the ex-
act words used by Sherrie Cvetnich, or his best recollections, which
may or may not be the exact words she used. Joseph replied, “The
exact—pretty—the exact words.” I asked if his usage of “pretty” meant
“pretty much?” Joseph replied, “Yes, sir.” I asked, then, which it was,
exact or pretty much, and whether he was confident that he remem-
bered the exact words she used. Joseph replied, “The exact keywords.
Yes sir.” Joseph was then asked whether Sherrie Cvetnich said the
same or similar things again in the conversation, and replied that it was
said a second time. I asked whether she used the exact same words the
second time. Joseph replied that he couldn’t testify they were “exact.”
I asked whether he remembered the exact words the second time. Jo-
seph replied, “I couldn’t testify exactly. No, sir.”
thing was “okay,” that Joseph replied that “Sherrie’s in here
screaming, threatening to trash the place,” and that Hogan re-
plied that he was going to call the police.50 Hogan testified that
he subsequently called the police. On cross-examination, Ho-
gan testified that in one of the phone calls, Joseph told him that
he had asked “them” to leave, but that “they” were demanding
their paychecks.
Sherrie Cvetnich and Burge then returned to Tessin’s office,
where Tessin and Eric Cvetnich were already present.51 Each
of the witnesses told different versions of what happened once
Sherrie and Cvetnich and Burge returned to Tessin’s office
after leaving Joseph. Tessin testified that Sherrie Cvetnich
spoke, and said that Joseph told them he wasn’t authorized to
issue paychecks and they wouldn’t be receiving them. Tessin
left her office, met Joseph in the hallway, and asked him why
the employees weren’t getting their checks. According to Tes-
sin, Joseph responded that “they’re not going to receive
paychecks.”
Tessin continued, that after her brief conversation with Jo-
seph, she returned to her office. A few minutes later, Joseph,
accompanied by a number of police officers, entered Tessin’s
office. According to Tessin, Joseph told the police officers that
he needed to call the owner, Hogan. Joseph called Hogan, and
then handed the phone to one of the police officers, Grady
Pierce, who spoke to Hogan on the phone, and then announced
that he was advised to “escort us out of the building.”
Tessin testified that she then asked Joseph, “Does this mean
we’re fired?” According to Tessin, Joseph answered, “Yes.”52
At some point Sherrie Cvetnich asked, “What are they going to
do about our paychecks?” Cvetnich then said to Officer Pierce,
that “she felt she should go up, tear down the work that we put
in that week setting up, because we had an event that night.”53
Tessin told Sherrie Cvetnich that she needed to calm down and
take a step back, that they wouldn’t want to tear anything down,
that they had a bride coming in. According to Tessin, Sherrie
Cvetnich followed her advice, and calmed down, and that after
she spoke to Cvetnich, one of the police officers “told us that
we could gather our own personal things,” and they (the police
officers) would stay while we gathered them. The employees
then gathered their personal belongings and left the premises
about an hour after being so instructed.
Sherrie Cvetnich’s testimony as to what happened in Tes-
sin’s office is similar to Tessin’s, except Cvetnich testified that
her “tear down” comment was made after the police officer

50 Hogan also testified that during the phone call he asked Joseph if
Joseph had “asked them to leave,” and that Joseph replied “Yes.”
51 Also present in Tessin’s office were her husband, and her son
Zach Cvetnich, neither of whom testified.
52 Counsel for the Acting General Counsel asked Tessin, “When’s
the first you heard that you were being fired?” Tessin answered,
“When I asked if we were fired.” No other witness supports this testi-
mony, and Tessin, for reasons discussed herein, is not a reliable wit-
ness. I, thus, do not credit this testimony. However, as discussed here-
in, the complaint pleads, and the Respondent’s answer admits, that, in
fact, Sherrie Cvetnich, Burge, and Eric Cvetnich were discharged by
the Respondent on October 16.
53 Tessin testified that Sherrie Cvetnich made her “tear down” com-
ment after Joseph said they were fired.
RANDOM ACQUISITIONS, LLC 311
spoke to Hogan on the phone, but before he gave instructions to
leave the premises. Burge testified that after the police officer
ended his phone conversation with Hogan, he told the employ-
ees that that had 5 minutes to gather their belongings and exit
the building. When asked by the counsel for the Acting Gen-
eral Counsel, “What, if anything, did you hear being said about
your employment status there,” Burge answered, “We said, ‘are
we fired?’ and the police officer said, “Take it any way you
want it.” On cross-examination by the Respondent’s counsel,
Burge testified that Joseph at no time told her that she was laid
off or fired.
Eric Cvetnich also testified as to being present in Tessin’s
office on October 16, and as to the occurrences therein. Ac-
cording to Eric Cvetnich, Sherrie Cvetnich was upset, that she
said that if she wasn’t going to be paid she would go upstairs
and tear down the work she had done prior, that at some point
thereafter a police officer spoke to Hogan on the phone, and
that after the police officer hung up the phone he said “he was
instructed to escort us out of the building.” Counsel for the
acting General Counsel asked Eric Cvetnich “after the police
officer said he was instructed to tell you to leave, what, if any-
thing, was said about your employment status?” Eric Cvetnich
answered, “Nothing,” and that he just gathered his belongings
and left. He testified that he assumed he had been terminated,
but didn’t know for sure.
Joseph testified that the police arrived about 1:30 p.m. on
October 16, and that he spoke to them, but doesn’t remember
the conversation. Then, in Tessin’s office, Joseph called Ho-
gan, and one of the police officers spoke to Hogan on the
phone, and then the officer announced that he was going to
“city hall to verify that Mr. Hogan . . . does, in fact, have the
authority to ask the people to leave the building.” According to
Joseph, about 45 minutes later the officer returned to Heritage,
and said that Hogan does have the authority, that he is the own-
er of the building and “he wants you to leave the building.”54
Joseph said that after the officer spoke, Sherrie Cvetnich, Eric
Cvetnich, Burge, and Tessin gathered their belongings and left
the building, but that before Tessin left he asked her for the
keys to the building, and she gave them to him. Joseph further
testified that “we talked,” that he couldn’t remember what was
said, but that Tessin did not ask Joseph if she was terminated.
Analysis and Conclusions
The General Counsel’s complaint alleges that the Respond-
ent discharged Sherrie Cvetnich, Eric Cvetnich, and Burge
because Sherrie Cvetnich “concertedly complained to [the]
Respondent . . .” “by demanding that [the] Respondent provide
her and other employees with their paychecks.” In short, coun-
sel for the Acting General Counsel argues, citing Liberty Ashes
& Rubbish Co., 323 NLRB 9, 11–12 (1997),55 in his brief, that

54 Joseph at first testified that he didn’t remember what the officer
said, and then added that he didn’t remember “exactly” what the officer
said. When asked whether, even if he didn’t remember every word,
what was his best recollection, Joseph testified, the officer said, “Mr.
Hogan has the authority to ask you to leave the building, and you—he
wants you to leave the building.”
55 The case stands for the proposition that when an employer dis-
charges an employee in the belief that the employee engaged in con-
when Sherrie Cvetnich, accompanied by Burge, spoke to Jo-
seph on October 16, she engaged in concerted and protected
activity by demanding that employees receive their paychecks
due for work already performed, and that Eric Cvetnich was
also discharged in retaliation for Sherrie Cvetnich’s concerted
activity.
The Respondent, in its counsel’s brief, essentially presents
two arguments. First, the Respondent argues that “Sherrie
Cvetnich and Eric Cvetnich are not statutory employees cov-
ered by the Act.” Second, the Respondent argues that the Act-
ing General Counsel failed to meet his burden under Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982),56 in that the Respond-
ent assertedly discharged Sherrie Cvetnich and Burge on a date
earlier than October 16 and, thus, prior to any assertedly con-
certed activity,57 and that, in the alternative, the Respondent
met its resultant Wright Line burden by, assertedly, demonstrat-
ing that the discharges would have taken place, notwithstanding
the asserted concerted activity.
I conclude, for the reasons set forth herein, that Sherrie
Cvetnich, Eric Cvetnich, and Burge were discharged in viola-
tion of Section 8(a)(1) of the Act, as alleged in the complaint.
In reaching this decision, I further conclude that all three were
statutory employees, that they were discharged on October 16,
and that the Acting General Counsel met the burden described
the by Board in Wright Line, while the Respondent failed to
meet its resultant burden.
In so concluding, I have carefully weighed the credibility of
the witnesses who testified, and find that neither Acting Gen-
eral Counsel’s witness Linda Tessin, nor the Respondent’s
witnesses, Tim Hogan and Hogarth Joseph, have demonstrated
either by testimonial demeanor or the quality of their testimony,
that they are witnesses upon whom I can rely on in determining
the substantive facts. As to Tessin, the substantive changes in
her testimony from her appearance as part of the Acting Gen-
eral Counsel’s case to her appearance during rebuttal are re-
markable, as was her stubborn insistence on demonstrably ludi-
crous testimony while being examined by the Respondent’s
counsel.58 Further, Tessin had to be excluded from the court-
room because of her behavior during the course of the testimo-
ny of other witnesses, which gave the undersigned concern that
her courtroom gestures could impact the testimony of said wit-
nesses, only to once again engage in such activity subsequent to

certed protected activity, such action violates the Act, regardless of
whether the employee engaged, or intended to engage in such activities.
The case citation appears here as corrected from the brief.
56 Citation appears as corrected from the brief.
57 And, thus, could not have been motivated by the asserted concert-
ed activity.
58 For example, Tessin was questioned by the Respondent’s counsel
as to an email, which she obviously authored and sent. When asked
initially, Tessin testified that she didn’t recall sending it. In response to
further questions, she testified that the email address on the “from” line
was not hers. She then testified that the email address was hers, but
anybody could have sent the email from her computer. Finally, she
acknowledged that she had seen the email before. On re-direct exami-
nation by the counsel for the Acting General Counsel, Tessin suddenly
remembered the reason she assertedly worded the email in a certain
way.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 312
being readmitted to the courtroom, pursuant to the request of
the counsel for the Acting General Counsel. These actions
demonstrated a single-minded focus on winning the litigation,
with everything else, including the truthfulness and reliability
of her testimony, of lesser consequence.
Hogan and Joseph also were unimpressive witnesses. Both
tended to answer counsels’ questions with long rambling,
sometimes evasive, answers that occasionally never even began
to deal with the question posed, giving rise to concern that they
were less interested in answering said questions than in present-
ing their views that the Respondent had been wronged, princi-
pally by Tessin. Their answers to counsels’ questions were
sometimes internally inconsistent so that each presented more
than one version of the same event or conversation.59 For ex-
ample, the first time Joseph was asked what Sherrie Cvetnich
said to him in his office on October 16, he failed to mention her
usage of the “f-word.” Asked a second time, he added her us-
age of the obscenity.
All three of these witnesses, based on their record testimony,
and based on my courtroom observations of their testimonial
demeanor, seemed more interested in helping win the case for
their “team,” than in giving honest, straightforward, and truth-
ful answers to questions. In short, I was given little reason to
rely on the testimony of any of them, when in conflict with
other testimony or evidence. However, the credited testimony
of the other witnesses,60 and the framing of the factual issues by
the Regional Director’s complaint and the Respondent’s an-
swer, provide a sufficient basis upon which to reach my conclu-
sions.
As to the substantive issues, I first conclude that, in fact,
Sherrie Cvetnich, Eric Cvetnich, and Teresa Burge are all statu-
tory employees, and that they, thus, enjoy Section 7 rights, and
that an employer interfering with, restraining, or coercing them
in the exercise of their Section 7 rights would violate Section
8(a)(1) of the Act. The Respondent does not contest Burge’s
status as a statutory employee, but in its counsel’s brief asserts
that neither Cvetnich is a statutory employee because they are
children of Tessin, who is alleged to be a supervisor in the
complaint. In its answer as to Tessin’s alleged supervisory
status, the Respondent leaves the Acting General Counsel to its
proofs.
Initially, I note that the Regional Director, in his complaint,
alleges both Sherrie and Eric Cvetnich to be employees. Thus,
in paragraph 8 of the complaint, the Regional Director alleges
as follows: “On October 16, 2009, Respondent terminated its
employees the Charging Party [Sherrie Cvetnich], Eric Cvet-
nich, and Teresa Burge.” The Respondent’s answer in response
to said allegation is as follows: “RESPONDENT ADMITS
SAME.”61 The answer of the Respondent was filed 2 days
before trial by the same counsel who presented the Respond-

59 A trait shared by Tessin.
60 By contrast, the testimony of Sherrie Cvetnich, and particularly
Teresa Burge and Eric Cvetnich, was generally directly responsive to
the questions, rather than evasive, and their testimonial demeanors, in
my close observation, were that of witnesses striving for accurate and
truthful answers, rather than just answers that would be helpful to their
side.
61 All caps contained in the original.
ent’s defense at trial, and now argues in brief that the Cvet-
nich’s are not employees. And complaint paragraph 8, which
the Respondent admitted in its entirety, didn’t just allege that
the Cvetnichs were terminated by the Respondent, but that the
Cvetnichs were employees of the Respondent, whom it termi-
nated.
The Respondent’s answer, admitting the status of Sherrie and
Eric Cvetnich, is binding upon the Respondent. In D.A. Collins
Refractories, 272 NLRB 931 (1984), the Board held as follows
in respect to the effect of such admissions in a party’s answer:
“The judge was correct in holding that a statement in a party’s
pleading is an admission. It is also true that a statement in a
pleading constitutes a ‘judicial’ admission that is binding on the
party making the admission. See 4 Wigmore, Evidence, Sec.
1064 (Chadbourn rev. 1972). It is also well established, how-
ever, that when an amended pleading is filed, the ‘judicial’
admission loses its binding effect.” No amended pleading was
filed or moved by the Respondent, and the argument contained
in its brief does not constitute such.
Even if the Respondent had amended its answer to place em-
ployee status in issue, its argument would be unavailing. In this
regard, the Respondent argues that the definition of “employee”
contained in Section 2(3) of the Act specifically excludes “any
individual employed by his parent or spouse,” and that since
Sherrie and Eric Cvetnich worked under the supervision of
Tessin, their mother, and alleged in the complaint as a 2(11)
supervisor and a 2(13) agent, they are excluded from the Act’s
protections afforded statutory employees.
But the cases cited by the Respondent’s counsel in his brief,
generally deal with the Board’s responsibility, under Section
9(b) of the Act, for finding appropriate units for collective bar-
gaining and whether certain employees, generally relatives of
an owner, share a community of interest with the balance of a
bargaining unit. See generally NLRB v. Action Automotive,
Inc., 469 U.S. 490 (1985). Thus, Novi American Inc. Atlanta,
234 NLRB 421 (1978), and Rawalt Coal Co.,62 92 NLRB 58
(1950), cases cited by the Respondent in its brief, dealt with the
issue of whether a relative of an owner shared a community of
interest with the bargaining unit, but not with the issue of
whether the individuals in question were statutory employees
so as to enjoy the protection of the Act.63
The dichotomy between the Board cases interpreting the
statutory exclusions set forth in Section 2(3) of the Act and the

62 Name of the case appears as corrected from the brief. In fact, the
Board’s decision here dealt only with the issue of commerce, finding
that the employer did not meet the Board’s discretionary standards, and
dismissing the case. The ALJ’s decision found that certain relatives of
management held interests significantly different from the rest of the
bargaining unit, and should not be included in the unit.
63 The Respondent’s counsel, in his brief, quotes as follows from the
court’s decision in NLRB v. Hofmann, 147 F.2d 679 (3d Cir. 1945):
“By the same token, his [the employee-son’s] father would not be
guilty of unfair labor practice by putting the kind of pressure upon his
son which he would not be privileged to put upon a stranger.” That
quote is not helpful here because the court’s reference is to an example,
put forth by the court, to a situation where the individual at question
was clearly excluded from the Act’s protection as the child of an own-
er, a situation that does not exist here.
RANDOM ACQUISITIONS, LLC 313
Board’s community of interest responsibilities is discussed in
Foam Rubber City #2 of Florida, Inc., 167 NLRB 623, 624
(1967). There, after discussing the application of Section 2(3)
to the facts of the case, the Board said,

But even assuming, arguendo, that Section 2(3) of the Act is
not susceptible to the foregoing interpretation, we would,
nevertheless, reach the same result in determining the appro-
priate bargaining unit in accordance with Section 9(b) of the
Act. Under that section, we are charged by Congress with the
responsibility to find units appropriate for collective bargain-
ing that assure to employees the fullest freedom in exercising
the rights guaranteed by the Act. And in implementing this re-
sponsibility we have traditionally included in bargaining units
those individuals who have a community of interest with their
fellow employees, but we have excluded individuals whose
interests are more closely identified with those of manage-
ment. Consistent with this practice we would exclude the
children of the principals of closely held corporations. For it is
obvious that such children, because of their relationship with a
substantial owner of this type of enterprise, have interests
more closely identified with management than with their fel-
low employees.

Thus, whatever decision the Board would make if faced with
a 9(b) community of interest issue in respect to Sherrie and Eric
Cvetnich, an issue not presented here, there is no evidence that
they are in any fashion the children of, or otherwise related to,
owners of the Respondent.64 Accordingly, even if the Re-
spondent had not admitted their status as employees of the Re-
spondent, I would find that neither Eric Cvetnich nor Sherrie
Cvetnich are excluded from the protection of the Act, under
Section 2(3), as employed by their parent or spouse.
The Respondent also maintains that Eric Cvetnich should be
excluded from the Act’s protection as a 2(11) supervisor. But
the Respondent’s answer, as noted above, admitted Eric Cvet-
nich’s status as an employee, and the Respondent never moved
to amend said answer. Accordingly, for the reasons discussed
above, this admission is binding upon the Respondent, and I
find that Eric Cvetnich is an employee entitled to the Act’s
protection, and not a supervisor within the meaning of Section
2(11).
But even notwithstanding the Respondent’s admission in its
answer, there is insufficient evidence from which I could con-
clude that Eric Cvetnich was a 2(11) supervisor. Particularly,
in this regard, I note that the Respondent’s counsel, in his brief,
asserts that Eric Cvetnich had the authority to hire his son, Zach
Cvetnich, as a temporary worker, citing as proof Eric Cvet-
nich’s testimony at pages 196–197 of the hearing transcript.
But, at the cited pages, Eric Cvetnich does not testify that he
hired his son, Zach, or that he had such authority. Indeed, Lin-
da Tessin testified that she “brought in Zach,” who “worked 2
weeks, but he never got paid.”
Section 2(11) of the Act provides that a supervisor is any
person “having authority in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign,

64 The Respondent does not argue, and there is no evidence, that
Tessin is an owner.
reward, or discipline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to recommend
such action, if such authority is not of a merely routine or cleri-
cal nature, but requires the use of independent judgment.” The
burden of establishing supervisor status rests on the party as-
serting such. Alois Box Co., 326 NLRB 1177 (1998).
The Respondent’s entire argument as to Eric Cvetnich’s su-
pervisory status is set forth in its counsel’s brief, as follows:
“There is undisputed evidence that Tessin’s son Eric Cvetnich
worked independently and was in sole charge of maintenance at
Heritage Tower without any supervision by Tessin. Eric also
had the authority to employ his son Zach as a temporary worker
. . . This evidence establishes . . . that he qualified as a statutory
supervisor.”65
Suffice to say, the record contains no evidence that Eric
Cvetnich exercised any of the 2(11) indicia in respect to any
other employee, or that any other employee worked under his
supervision. In fact, the record does demonstrate that Eric
Cvetnich carried out his job responsibilities of building mainte-
nance with little or no supervision from anybody else, including
Tessin, and that he, thus, likely exercised some independent
judgment in respect to such maintenance duties.66 But the test
of supervisory status is not whether he used independent judg-
ment in carrying out his maintenance responsibilities, but
whether he exercised such independent judgment with respect
to one or more of the specific authorities listed in Section 2(11).
Alois Box Co., supra. There is no evidence that he, in fact, did
such.
Having found that Sherrie Cvetnich and Eric Cvetnich were
statutory employees on October 16, I next consider whether
they and Teresa Burge were discharged in violation of Section
8(a)(1). If the discharges arose out of the res gestae of protect-
ed activity, assertedly Sherrie Cvetnich’s complaints to Joseph
on October 16 as to the Respondent’s failure to pay them and
Cvetnich’s concomitant use of profanity, then a Wright Line
analysis is inapplicable. Aluminum Company of America, 338
NLRB 20, 21 (2002).
However, the Respondent argues, in the alternative, that it
discharged Sherrie Cvetnich, Eric Cvetnich, and Burge on a
date earlier than October 16 because (1) of the malfeasance of
Tessin (the Cvetnichs’ mother), and (2) it would have dis-
charged them anyway because of the Respondent’s lack of
financial resources. Such argument presents the issue of dis-
puted or mixed motivation, and requires the use of a Wright
Line analysis. Austal USA, LLC, 356 NLRB 363, 364 (2010).

65 The two cases cited by the Respondent’s counsel, in brief, are in-
apposite on their facts. Thus, in Silvercup Bakers, 222 NLRB 828
(1976), the administrative law judge found “the head” of an employer’s
maintenance department to be a supervisor where he was in charge of
the day-to-day operations of the maintenance department and its 15
employees. Here, there is no other maintenance employee other than
Eric Cvetnich. In Grancare, Inc., v. NLRB, 137 F.3d 372 (6th Cir.
1998), the court overruled the Board, and concluded that charge nurses
were supervisors where they exercised independent judgment in carry-
ing out supervisory indicia, including discipline and assigning work.
There is no evidence here that Eric Cvetnich possessed such authority.
66 Although Eric Cvetnich credibly testified that he received work
assignments from Tessin and from Joseph.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 314
Thus, before analyzing whether the discharges arose out of the
res gestae of protected activity and the resultant issues, I must
determine the Respondent’s motive for the discharges.
Applying a Wright Line analysis, I first conclude that Sherrie
Cvetnich and Burge engaged in protected, concerted activity on
October 16 and that the Respondent had knowledge of such
activity, as it took place in a conversation with Joseph, and
Joseph reported the demand to be paid to Hogan. In this re-
gard, Sherrie Cvetnich and Burge together confronted Joseph in
his office on October 16, and Sherrie Cvetnich demanded their
overdue paychecks from the Respondent.
I found that Sherrie Cvetnich told Joseph that if the Re-
spondent didn’t provide the paychecks, she would call the La-
bor Board, a state of Michigan government agency, and media
outlets, and that she wanted the paychecks for everybody.67 I
further found that Joseph responded that “we’re working on
it.”68 I also found that during the course of the conversation,
Sherrie Cvetnich referred to the paychecks as “fu****g
paychecks,” and that she further threatened that if she didn’t
receive the paychecks she would “tear down” the wedding ban-
quet that she, and Burge, had already set up.69 Finally, I found
that upon hearing Sherrie Cvetnich’s complaints as to the
paychecks, Joseph called Hogan and told him, among other
things, that “they were demanding their paychecks.”70
Such employee complaints to an employer, specifically
complaints about the failure of an employer to provide
paychecks, are protected. See, for example, Rogers Environ-
mental Contracting, 325 NLRB 144, 145 (1997), where the
Board held that employees engaged in protected activity when
they protested to their employer, its failure to allow them to
cash their paychecks. “[T]here can be no doubt that there is no
more vital term and condition of employment than one’s wages,
and employee complaints in this regard clearly constitute pro-
tected activity . . . [I]n this case [two employees] expressed
complaints about the most fundamental aspect of this ‘vital’

67 For reasons discussed supra, I mostly rely on the testimony of
Burge and Sherrie Cvetnich as to this conversation. However, Joseph
specifically testified that Sherrie Cvetnich demanded paychecks for
everybody, and I credit this admission.
68 Credited testimony of Joseph. This testimony of Joseph was not
specifically disputed, and there does not appear to be a reason why
Joseph would concoct this.
69 Here, for reasons discussed supra, I credit Burge, and the largely
complementary testimony of Sherrie Cvetnich, over the testimony of
Joseph. I note that Joseph testified that Sherrie Cvetnich used the word
“trash” rather than the words “tear down.” All agreed that in the ban-
quet industry, “tear down” has a specific meaning that would include
the work performed to return the banquet equipment to storage, as
before the banquet was set up. In addition to my credibility assess-
ments of the witnesses to this conversation, I consider it more likely in
context, even with Sherrie Cvetnich upset over the paychecks, or lack
thereof, that she used a term commonly used in the banquet business.
Thus, I find that what Sherrie Cvetnich was threatening, was to simply
undo the work that she and Burge had already performed, but which the
Respondent had not paid them for. I specifically find that she was not
threatening to damage the Respondent’s facility or equipment, or any
type of violence.
70 Joseph so testified on cross-examination, and I credit his admis-
sion.
term and condition of employment, the obligation of the em-
ployer to compensate with a check or other instrument that will
be honored for payment.” Id.
Further, Sherrie Cvetnich and Burge engaged in the activity
together. I found that they spoke earlier in the day, and agreed
they would meet at the Respondent’s offices and inquire as to
the overdue paychecks. Together they met with Joseph, and
while Cvetnich presented the verbal complaint to Joseph as to
their paychecks, Joseph credibly testified that Cvetnich was
seeking paychecks for everybody. Finally, as found, none of
the Respondent’s employees had received the overdue
paychecks and, thus, Cvetnich, accompanied by Burge, was
complaining to Joseph about a concern that affected all of the
employees, not just Cvetnich.71
I, further, found that when Sherrie Cvetnich complained to
Joseph on October 16, she threatened to go to various media
and government agencies, including the NLRB, if the Respond-
ent failed to provide the paychecks. The Board has repeatedly
held that such conduct is protected by Section 7. See, for ex-
ample, Williams Contracting, 309 NLRB 433 fn. 2 (1992).
Having found that Sherrie Cvetnich and Burge engaged in
protected concerted activity, and that the Respondent had
knowledge of such, I further find that this activity was a moti-
vating factor in the Respondent’s decision to discharge them.
In so deciding, I further conclude that the Respondent’s prof-
fered reasons for its decision to discharge Sherrie Cvetnich,
Burge, and Eric Cvetnich are pretextual. “When the employer
presents a legitimate basis for its actions, which the factfinder
concludes is pretextual; the factfinder may not only properly
infer that there is some other motive, but that the motive is one
that the employer desires to conceal.” Rood Trucking Co., 342
NLRB 895, 897–898 (2004), citing Laro Maintenance Corp. v.
NLRB, 56 F.3d 224, 229 (D.C. Cir. 1955).
As to the pretextual nature of the Respondent’s asserted rea-
sons for the discharges, I first note that the Respondent’s an-
swer admits, and I find, that Sherrie Cvetnich, Burge, and Eric
Cvetnich were all terminated on October 16. Again, as dis-
cussed supra, such admissions contained in an answer are bind-
ing upon a respondent. Here, the answer was filed only shortly
before trial, by the same counsel who tried the case for the Re-
spondent, and the Respondent made no attempt to amend its
answer.
Indeed, the Respondent counsel’s oral argument at the hear-
ing, to the effect that the Respondent possessed information as
to Tessin’s asserted bad acts prior to October 16 and was “con-
templating firing these people,” and “was going to terminate
these people,” is consistent with its answer, and my finding,
that the discharges took place on October 16, and not before.
“Contemplating” is different from acting.72

71 Some of the words used by Sherrie Cvetnich in complaining to Jo-
seph appear to address her own individual concerns over not being
paid. However, the concerted nature of Sherrie Cvetnich’s complaint to
Joseph, is demonstrated by Joseph’s own credited testimony that she
was, in effect, asking for the paychecks for all the employees, and the
fact that she was accompanied by Burge, who also did not receive her
paycheck.
72 Respondent’s counsel argued on the record as follows: “Part of
the defense is that not only was the atmosphere charged dramatically by
RANDOM ACQUISITIONS, LLC 315
Based on the record evidence, I have little doubt that the Re-
spondent, in the persons of Hogan and Joseph, had a reasonable
basis to be concerned about Tessin’s management of Heritage
and/or to take action against her. Thus, Hogan was concerned
about the state of disrepair of the building and the bank vault
that he observed in mid-September, about Tessin’s decision to
contract-out the canopy removal work to a contractor that em-
ployed her son rather than to a competitor that seemingly of-
fered to repair, not just remove, the canopy for about the same
price, about opening supplier credit accounts with applications
that contained the forged signature of Hogan, about Tessin’s
cutting of a check to her son for the canopy removal work
thereby causing a check to Consumer’s Energy to be returned
by the bank, and about the incident involving the sheriff’s visit
to Heritage on October 15, to execute on the Respondent’s
property in respect to Tessin’s personal garnishment.73
But, despite legitimate concerns that the Respondent may
have had about Tessin, I found that the Respondent took no
action against either her, or any of the employees, until the time
on October 16 that Sherrie Cvetnich and Burge engaged in the
protected concerted activity of protesting the Respondent’s
failure to provide them with paychecks. As the Respondent’s
counsel argued at the hearing, the Respondent may have “con-
templated” taking action, but it did not.74 Even assuming, ar-

the events that she caused the garnishment, the police coming in and
grabbing, starting to take furniture and furnishings from the place, but
they had just gone through receiving this check. There was very little
money in the checking account. She presented false information to my
client, saying that she got invoices from these people, and she was
going to hire and have that done. She never told them she was hiring
her son, and they had this information prior to October 16, which led to
a severe atmosphere of distrust and there’s going to be further evidence
from my client with emails and everything that they were contemplat-
ing firing these people well before October 16th because of the acts,
because of acts like this of hiring her son to do something that some-
body else was going to charge less to do, things not being done in the
building in a timely fashion, signing—forging, as a matter of fact,
credit applications and having two of these claimants sign they wit-
nessed Mr. Hogan signing that when, in fact, he wasn’t even in the
state. That’s not his signature.
All of this information was available to them. They were going to
terminate these people. And on top of that, she’s writing checks to her
son and a lot of money, at least as far as the business is concerned, at
this point in time. And the payroll, there wasn’t even enough to make
the payroll.”
73 Essentially, here, the Respondent argues guilt by association. That
because Tessin was a problem, it needed to get rid of Tessin’s relatives
and associates. But even here, it took no action until employees en-
gaged in protected concerted activity. I also note that to the extent the
Respondent argues, based on the discredited testimony of Joseph, that it
ordered Tessin to lay off Sherrie Cvetnich and Burge prior to October
16, it makes no similar argument as to Eric Cvetnich.
74 As discussed above, I find that neither Tessin, nor Hogan and Jo-
seph are credible witnesses. I, thus, cannot rely on either Tessin’s or
Joseph’s testimony as to their phone conversation on October 5. If
Joseph is to be believed, he told Tessin to lay off Sherrie Cvetnich and
Burge, and that it was to be their last week. If Tessin is to be believed,
she convinced Joseph that Sherrie Cvetnich and Burge were needed for
banquets, and Joseph agreed to simply reducing their hours. As noted,
instead I rely on the pleadings, including the Respondent’s admission
that the discharges took place on October 16. In this regard, I further
guendo, that the Respondent had cash flow or other financial
woes as testified to by Tessin, Hogan, and Joseph, this precipi-
tated no personnel actions by the Respondent, until the concert-
ed, protected activity of October 16.75
In sum, the Respondent was, assertedly, unhappy with Tessin
as to the condition of the building and the bank vault, but took
no action. The Respondent was, assertedly, unhappy with Tes-
sin as to opening lines of credit utilizing Hogan’s forged signa-
ture, but took no action. The Respondent was, assertedly, un-
happy with Tessin’s awarding the canopy work to her son’s
employer, but took no action. The Respondent was, assertedly,
unhappy with Tessin’s actions that may have resulted in the
Respondent’s check to Consumer’s Energy being returned, but
took no action. The Respondent was, assertedly, concerned
with its financial situation, but took no action. Only when it
was presented with a protected, concerted demand that its em-
ployees be paid, did the Respondent immediately discharge its
employees.
Further, the Respondent, in its counsel’s brief, appears to
concede, in essence, that the Respondent discharged Sherrie
Cvetnich, Burge, and Eric Cvetnich because of Sherrie Cvet-
nich’s actions of October 16. Here, the Respondent argues:
“While the immediate cause of their removal from Heritage
Tower was Sherrie Cvetnich’s behavior on October 16, 2009,
the collective evidence presented at the hearing demonstrated
Respondent would have terminated them in any event due to
the Respondent’s desperate financial circumstances and ex-
treme distrust of Linda Tessin and her building staff.”76 This
argument, consistent with the Respondent’s answer to the Act-
ing General Counsel’s complaint, arguably concedes that the
Respondent didn’t, in fact, terminate the employees until Octo-
ber 16.
Based upon the above discussion, I conclude that the Acting
General Counsel has established a prima facie case that protect-
ed concerted conduct was a motivating factor in the Respond-
ent’s decision to discharge Sherrie Cvetnich and Burge. In
particular, the timing of the Respondent’s actions, concomitant
with the protected activity, is significant. See American Cyan-
amid Co., 301 NLRB 253 (1991).77 “It is well settled that the
timing of an employer’s action in relation to known union ac-
tivity can supply reliable and competent evidence of an unlaw-

note that Joseph testified that in response to Sherrie Cvetnich’s de-
mand, on October 16, to be paid, he told her, “I’m working on it.”
Joseph’s response would appear nonsensical if he believed that Sherrie
Cvetnich had already been laid off.
75 Sherrie Cvetnich’s signature appears as a witness on the credit ap-
plications filed by Tessin, and containing the forged signature of Ho-
gan. Any argument which the Respondent makes asserting that Sherrie
Cvetnich’s signature on the applications is a basis for the discharge is
unpersuasive simply because she wasn’t discharged when Joseph dis-
covered the documents in early October, but on October 16, when she
engaged in protected concerted activity.
76 From the brief of the Respondent’s counsel.
77 While there is no direct evidence here that the Respondent har-
bored animus towards the protected activity, illegal motivation may be
demonstrated by circumstantial evidence, including inferences from the
pretextual nature of a discharge. All Pro Vending, Inc., 350 NLRB 503,
508 (2007). Here, such circumstantial evidence including timing and
the pretextual nature of the discharges.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 316
ful motivation.” Davey Roofing, Inc., 341 NLRB 222, 223
(2004). “Timing alone may suggest antiunion animus as a mo-
tivating factor in an employer’s action.”78 NLRB v. Rain-Ware,
Inc., 732 F.2d 1349 (7th Cir. 1984).
Inasmuch as I have rejected the Respondent’s proffered non-
violative reasons for the discharges as pretextual, the Respond-
ent cannot meet its resultant Wright Line burden. Austal USA,
LLC, 356 NLRB 363, 364 (2010). “[W]here an administrative
law judge has evaluated the employer’s explanation for its ac-
tion and concluded that the reasons advanced by the employer
were pretextual, that determination constitutes a finding that the
reasons advanced by the employer either did not exist or were
not, in fact, relied upon.” Limestone Apparel Corp., 255 NLRB
722 (1981). Timing and pretext are indicative of illegal moti-
vation. Active Transportation, 296 NLRB 431, 432 (1989).
The Respondent, nevertheless, argues that even if Sherrie
Cvetnich engaged in protected, concerted conduct, and the
Respondent was so aware, she, nevertheless, lost the Act’s
protection by using obscene and assertedly threatening lan-
guage in complaining to Joseph about not being paid.79 This
argument assumes the protected concerted nature of Cvetnich’s
complaint to Joseph, the conclusion I’ve reached above. Of
course, the Board recognizes that the “fact that an activity is
concerted . . . does not necessarily mean that an employee can
engage in the activity with impunity.” NLRB v. City Disposal
Systems, 465 U.S. 822, 837 (1984).
In such circumstances, when an employee is disciplined for
conduct that is part of the res gestae of protected concerted
activities, the pertinent question is whether the conduct is suffi-
ciently egregious to remove it from the protection of the Act.
Stanford Hotel, 344 NLRB 558 (2005). Thus, an employer
violates the Act by discharging an employee engaged in pro-
tected concerted activity, unless, in the course of that activity,
the employee engages in opprobrious conduct, costing her the
Act’s protection. Atlantic Steel Co., 245 NLRB 814, 816–817
(1979).
In determining whether otherwise protected employee con-
duct is sufficiently egregious so as to lose the protection of the
Act, the Board requires the careful balancing of the four factors
enumerated in Atlantic Steel Co., supra at 816–817. Felix In-
dustries, Inc., 331 NLRB 144 (2000). These factors are: (1)
the place of the discussion; (2) the subject matter of the discus-
sion; (3) the nature of the employee’s outburst; and (4) whether
the outburst was, in any way, provoked by an employer’s unfair
labor practice.
As to the Atlantic Steel factors, the conversation took place
in Joseph’s office in the Heritage building, in the presence of
fellow employee Burge, who was also concerned about the
failure to receive paychecks, and was limited to the subject
matter of the Respondent’s failure to provide paychecks. Sher-
rie Cvetnich’s usage of the obscenity “f*****g” was as an ad-
jective modifying the word “paycheck,” and was not directed at
either Joseph or the Respondent. Cvetnich’s usage of the ob-
scenity appeared to be in response to, and provoked by, Jo-

78 Or animus against the protected activity, as here.
79 Of course, the same argument would not apply to Burge, who is
not accused of untoward actions during protected activity.
seph’s response to her demand to be paid, in which Joseph
indicated that the overdue paychecks were not forthcoming.
Finally, I concluded that Sherrie Cvetnich’s usage of the words
“tear down” was simply a reference to undoing the work em-
ployee had already performed, but had not been paid for, and
was not a threat to do harm or violence to the Respondent’s
property.
As to the first Atlantic Steel factor, Sherrie Cvetnich’s com-
ments were made in the confines of an office occupied by Jo-
seph, and not in a work area. Inasmuch as there was, apparent-
ly, only one other employee who may have been working at the
time, Eric Cvetnich, he was not in Joseph’s office during the
conversational exchange between Sherrie Cvetnich and Joseph.
According, I find that Sherrie Cvetnich’s words did not ad-
versely impact the work of other employees. While it’s true
that employee Burge was also present, Burge was also there to
complain about the lack of paychecks. Thus, I find that the first
factor weighs slightly in favor of finding Cvetnich’s comments
to be protected.
As to the second factor, the subject matter of Cvetnich’s out-
burst dealt only with her complaint that employees had not
received their paychecks. Her outburst, thus, occurred in the
context of asserting statutory rights. Thus, subject matter
weighs strongly in favor of finding her comments remain pro-
tected. Stanford Hotel, supra at 559.
As to the third factor, the nature of the outburst, I found that
Sherrie Cvetnich used an obscenity in the course of her com-
plaint to Joseph.80 I further found that she did not threaten
harm to Joseph, or damage to the Respondent’s premises.
Thus, while Cvetnich’s outburst was profane, it was not per-
sonally abusive to Joseph, nor abusive to the Respondent.81
Accordingly, this factor militates moderately against continued
protection.82
As to the fourth factor, there is no evidence that Joseph pro-
voked Cvetnich’s profane outburst by committing or threaten-
ing unfair labor practices during their confrontation, although
the confrontation itself was provoked by the Respondent’s fail-
ure to pay its employees. Cvetnich appeared to be provoked to
profanity simply because Joseph did not appear ready to imme-
diately comply with her demand to be paid. Accordingly, this
factor slightly militates against continued protection. See Tam-
pa Tribune, 351 NLRB 1324, 1326 (2007), and Noble Metal
Processing, Inc., 346 NLRB 795 fn. 2 (2006).
In balancing the above factors, I conclude that the subject
matter and location, which weigh slightly to strongly in favor of

80 I cannot determine whether the usage of such words was typical or
unusual by employees on the Respondent’s premises as no evidence
was introduced as to such.
81 Contrast this to the circumstances in Stanford Hotel, in which the
employee directly called the supervisor “a f*****g son of a bitch.”
There, the Board found that the language militated against protection.
Here, Cvetnich targeted nobody with her profanity.
82 See Tampa Tribune, 351 NLRB 1324, 1326 (2007), where the
Board found the usage of the words “stupid f*****g moron” “clearly
intemperate”, but only militating moderately against protection. In The
Tampa Tribune, the words were used by the employee to directly de-
scribe a manager, although not to his face. Here, the words were not
used towards a manager, but in a manager’s presence.
RANDOM ACQUISITIONS, LLC 317
retaining the Act’s protection, more than offset the nature of the
outburst or the lack of provocation, which weigh slightly to
moderately against retaining the Act’s protection. I, thus, con-
clude that after carefully weighing the Atlantic Steel factors,
Sherrie Cvetnich’s usage of profanity was not so opprobrious as
to remove her conduct from the protection of the Act. Thus, as
I have already concluded that the Respondent discharged her
for engaging protected activity and now conclude that her con-
duct did not lose the Act’s protection, I find that the Respond-
ent discharged Sherrie Cvetnich in violation of Section 8(a)(1)
of the Act, as alleged in the complaint.
I further find that the Respondent violated Section 8(a)(1) by
discharging Teresa Burge on October 16. Thus, on the morning
of October 16, Burge and Sherrie Cvetnich spoke, and agreed
to meet at Heritage later that day to find out about their overdue
paychecks. While Cvetnich, apparently, did all the talking to
Joseph,83 including demanding the employee paychecks, Burge
accompanied her to Joseph’s office, and was with her during
the conversation with Joseph.
Further, and most significantly, Joseph testified that Sherrie
Cvetnich told him that “she wanted paychecks for everybody,”
and, in turn, he told Hogan that “Sherrie was in the office and
they want their paychecks now.” The Board has repeatedly
held that the usage of such collective terms (“everybody,”
“they,” “their”) signals to an employer that the activity is con-
certed. See, for example, Office Professional Employees Inter-
national Union, 307 NLRB 264, 268 (1992) (“our”); Bryant &
Cooper Steakhouse, 304 NLRB 750, 752 (1991), affd. 995 F.2d
257, 263–264 (D.C. Cir. 1993) (“we”); Oakes Machine Corp.,
288 NLRB 466 (1988), enfd. 897 F.2d 84 (2d Cir. 1990)
(“we”).
Thus, I find that it was clear to the Respondent that Burge
and Sherrie Cvetnich were acting concertedly on behalf of all
the employees in demanding their paychecks. Inasmuch as
Burge, thus, engaged in protected concerted activity, as the
Respondent, in any case, perceived the activity as concerted,
and as I have found that the Respondent’s asserted reasons for
its actions were pretextual,84 I conclude that the Respondent
violated Section 8(a)(1) of the Act by discharging Burge, as
alleged in the complaint.
As to Eric Cvetnich, he did not participate in the protected
activity, and there is no evidence that he demanded his overdue
paycheck from the Respondent. Joseph testified that when he
discussed the status of Heritage employees with Hogan, some-
time between October 3 and 11, no decision had been made as
to the status of Eric Cvetnich. Shortly thereafter, the Respond-
ent discharged Eric Cvetnich. There were no other intervening

83 None of the witnesses testify to anything Burge said during the
conversation.
84 The alleged signature of Burge appears as a witness on one of the
credit applications containing the forged signature of Hogan. Burge
credibly testified, without contravention, that the signature was not
hers. The Respondent’s counsel, in arguing against the counsel for the
Acting General Counsel’s objection to relevance as to questions about
Burge’s signature, stated as follows: “The relevance is this would be a
basis upon which she was terminated by Random Acquisitions (empha-
sis supplied).” This argument is consistent with the Respondent’s
defense, in the sense of searching for a lawful reason for the discharge.
events arguably involving Eric Cvetnich during that period,
except for the concerted activity of Sherrie Cvetnich and Burge.
Inasmuch as I’ve already concluded that the Respondent’s prof-
fered reasons for the discharges, i.e. Tessin’s malfeasance in
her job, and the Respondent’s asserted financial problems were
pretextual, I further conclude, thus, that the Respondent dis-
charged Eric Cvetnich because of the concerted protected activ-
ity engaged in by Sherrie Cvetnich and Burge.
Where it is alleged that an employee was discharged because
of the protected concerted activities of other employees, the
Board does not require either that the employee, her-
self/himself, had engaged in protected activity or that the em-
ployer had knowledge of such, in order to find the discharge in
violation of the Act. For example, in City Stationery, Inc., 340
NLRB 523, 524 (2003), the Board held that neither the em-
ployee’s participation in protected activity, nor the employer’s
knowledge of such participation, are necessary to find a viola-
tion, where the discharge was part of a larger termination of
employees who did participate in such activity with the em-
ployer’s knowledge.
Here, there is no other valid reason presented for Eric Cvet-
nich’s discharge other than the protected concerted activity of
Sherrie Cvetnich and Burge.85 Accordingly, I conclude that the
Respondent discharged Eric Cvetnich because of the protected
concerted activity of Sherrie Cvetnich and Burge, in violation
of Section 8(a)(1) of the Act, as alleged in the complaint.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent, by discharging Sherrie Cvetnich, Teresa
Burge, and Eric Cvetnich on October 16, 2009, has interfered
with, restrained, and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act in violation of Section
8(a)(1) of the Act.
3. The unfair labor practices set forth above affect com-
merce within the meaning of Section.
THE REMEDY
As I have found that the Respondent discharged Sherrie
Cvetnich, Teresa Burge, and Eric Cvetnich in violation of the
Act, I will recommend the traditional remedy for such viola-
tion, of a cease and desist order, reinstatement, backpay, and
posting of an appropriate remedial notice. The make whole
remedy shall be computed in accordance with F. W. Woolworth

85 To the extent that the Respondent argues that Eric Cvetnich either
played some role in the asserted poor condition of portions of the Herit-
age building or the asserted partial dismantling of the building’s bank
vault and selling-off of the removed parts, and that such was a basis for
his discharge, I am not persuaded. First, Eric Cvetnich testified, credi-
bly, that he sold the parts or “scrap” in order to fund supplies for the
building, and Joseph testified that Eric Cvetnich told him that he was
selling the scrap, and that Joseph, thereupon, inferred that Cvetnich was
telling him that he was using the money obtained to fund supplies for
the building. Further, whatever suspicions the Respondent may have
had about what Eric Cvetnich used the money for, or his culpability in
the asserted condition of the building, it admittedly took no action
against Eric Cvetnich until October 16, the date of the protected con-
certed activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 318
Co., 90 NLRB 289 (1950), with interest at the rate prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded daily as
set forth in Kentucky River Medical Center, 356 NLRB 6
(2010). Finally, the notice shall also be posted electronically.
J. Picini Flooring, 356 NLRB 11 (2010).
On these findings and conclusions of law, and on the entire
record, including my credibility resolutions, I issue the follow-
ing recommended86
ORDER
The Respondent, Random Acquisitions, LLC, with offices
and place of business in Battle Creek, Michigan, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because of their participation in
protected concerted activities or because of the protected con-
certed activities of other employees.
(b) In any like or related manner restraining, coercing, or in-
terfering with employees in the exercise of their Section 7
rights.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer full re-
instatement to Sherrie Cvetnich, Teresa Burge, and Eric Cvet-
nich to their former jobs, or if those jobs no longer exist, offer
them a substantially equivalent position, without prejudice to
their seniority and other rights and privileges previously en-
joyed.
(b) Make whole Sherrie Cvetnich, Teresa Burge, and Eric
Cvetnich for any loss of earnings and other benefits suffered as
a result of their discharges by the Respondent. Backpay is to be
computed as set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the discharges of Sherrie Cvetnich,
Teresa Burge, and Eric Cvetnich, and notify each of them in
writing within 3 days thereafter that this has been done and the
evidence of the unlawful actions will not be used against them.
(d) Preserve, and within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Region-
al Director, all payroll records, social security payment records,
timecards, personnel records, and reports, and all other records,
including electronic copy of the records if stored in electronic
form, necessary to analyze the amount of backpay due under
terms of this Order.
(e) Within 14 days after service by the Region, post at its
Battle Creek, Michigan facility copies of the attached notice
marked as “Appendix.”87 Copies of the notice, on forms pro-

86 In no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the Board shall, as provided in Sec.
102.48 of the Rules, adopt the findings, conclusions, and recommended
Order and all objections to them shall be deemed waived for all purpos-
es.
87 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
vided by the Regional Director of Region 7, after being signed
by the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt 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
materials. 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. In the event that, during the pendency of proceedings,
the Respondent has gone out of business or closed the facility
involved in this proceeding, the Respondent shall duplicate and
mail, at its expense, copies of the notice to all employees and
former employees of the Respondent at any time since October
16, 2009.
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT discharge employees because they act together
with other employees for their benefit and protection.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of their Section 7
rights.
WE WILL, within 14 days of the date of the Order, offer Sher-
rie Cvetnich, Teresa Burge, and Eric Cvetnich full reinstate-
ment to their former positions or, if those positions no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
WE WILL, within 14 days of the date of the Order, remove
from our files any references to the discharges of Sherrie Cvet-
nich, Teresa Burge, and Eric Cvetnich, and notify each of them
in writing, within 3 days thereafter, that this has been done, and
that such references will not be used against them.
RANDOM ACQUISITIONS, LLC 319
WE WILL make Sherrie Cvetnich, Teresa Burge, and Eric
Cvetnich whole for any loss of earnings and other benefits re-
sulting from our actions against them, less any interim earnings,
plus interest.

RANDOM ACQUISITIONS, LLC