Jeff MacTaggart Masonry, LLC d/b/a JM2

National Labor Relations Board - Board Decisions

Mar 22, 2016

363 NLRB No. 149 (N.L.R.B. 2016)

363 NLRB No. 149
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Jeff MacTaggert Masonry, LLC d/b/a JM2 and In-
ternational Union of Bricklayers and Allied
Craftworkers Local 15 Mo-Ks-Ne and Interna-
tional Union of Bricklayers and Allied
Craftworkers Local 3 Iowa. Cases 14–CA–
138748, 14–CA–143817, and 18–CA–135993
March 22, 2016
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
On May 6, 2015, Administrative Law Judge Arthur J.
Amchan issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions, to

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In the absence of exceptions, we adopt the judge’s findings that, in
response to a union salting campaign, the Respondent violated Sec.
8(a)(3) and (1) by changing its application process by refusing to accept
applications from walk-ins and then limiting the process to referrals,
and violated Sec. 8(a)(1) by posting signs on the doors to its building
prohibiting loitering, solicitation, and cameras.
We agree with the judge’s finding that the Respondent unlawfully
refused to hire union representatives Jared Skaff, Francis Jacobberger,
and Ernest Adame. The Respondent was hiring; Skaff, Jacobberger,
and Adame had relevant experience for the open positions; and the
Respondent exhibited union animus. See FES, 331 NLRB 9, 12
(2000), enfd. 301 F.3d 83 (3d Cir. 2002). The Respondent demonstrat-
ed union animus by the 8(a)(1) and (3) violations discussed above. See
Austal USA, LLC, 356 NLRB 363, 364 (2010) (animus demonstrated
by independent 8(a)(1) violations). To the extent the Respondent as-
serted that they did not have the necessary qualifications, the Respond-
ent failed to meet its burden of showing that Skaff, Jacobberger, or
Adame did not possess the required qualifications or that others who
were hired had superior qualifications. FES, above. In fact, each of the
alleged discriminatees had relevant work experience that was at least
comparable to several of the applicants that the Respondent hired in
July and August 2014—the timeframe within which Skaff, Jacobberger,
and Adame applied for positions with the Respondent and were refused
hire—and whose applications did not indicate any union affiliation.
See U. S. Marine Corp., 293 NLRB 669, 671 (1989), enfd. 944 F.2d
modify the remedy, and to adopt the recommended Order
as modified and set forth in full below.2
We agree with the judge that the Respondent violated
Section 8(a)(3) and (1) by discharging employee Marvin
Monge on August 19, 2014. The Respondent does not
dispute that, since July 20, 2014, it knew of Monge’s
support for the Union, and the judge reasonably inferred
that the Respondent knew of Monge’s attendance at an
August 19 union job action after Monge was observed
there by George Owen, the Respondent’s foreman, who
then made a call on his cell phone. Monge was dis-

1305 (7th Cir. 1991), cert. denied 503 U.S. 936 (1992); see also Fluor
Daniel, Inc., 311 NLRB 498, 498–499 (1993), enfd. in relevant part
161 F.3d 953 (6th Cir. 1998). Further, we find that the Respondent
failed to put at issue the genuineness of the alleged discriminatees’
interest in employment. See Toering Electric Co., 351 NLRB 225, 233
(2007). For example, the Respondent presented no evidence that any of
the three applicants “refused similar employment with the respondent
employer in the recent past; incorporated belligerent or offensive com-
ments on his or her application; engaged in disruptive, insulting, or
antagonistic behavior during the application process; or engaged in
other conduct inconsistent with a genuine interest in employment.” Id.
To the contrary, while submitting their applications at the Respondent’s
office, Skaff, Jacobberger, and Adame exhibited a respectful demeanor
and conduct entirely consistent with having a genuine interest in seek-
ing employment. Assuming arguendo that the Respondent did put at
issue the genuineness of their employment interest, we find, for the
reasons stated by the judge, that the General Counsel proved that each
of them had a genuine interest.
We find it unnecessary to pass on the judge’s finding that the Re-
spondent additionally violated Sec. 8(a)(3) and (1) by refusing to con-
sider Skaff, Jacobberger, and Adame for employment because the rem-
edy for a refusal-to-consider violation would be subsumed within the
broader remedy for the refusal-to-hire violation.
The Respondent contends that the Union’s unfair labor practice
charges should have been dismissed on the basis that the Union’s con-
duct—specifically, the “job actions” in which it engaged at the Re-
spondent’s jobsites and its Omaha, Nebraska office—violated Sec.
8(b)(7)(C) of the Act, which makes it unlawful for a union or its agents
to picket any employer with an object of forcing or requiring the em-
ployer to recognize or bargain with the union, “where such picketing
has been conducted without a petition under section 9(c) being filed
within a reasonable period of time not to exceed thirty days from the
commencement of such picketing.” The judge rejected the Respond-
ent’s contention, stating that Sec. 8(b)(7)(C) “does not have any rele-
vance to this case.” Member Miscimarra does not rely on this state-
ment by the judge. Rather, Member Miscimarra would find that the
Respondent asserted Sec. 8(b)(7)(C) as an affirmative defense, it had
the burden of establishing a violation of Sec. 8(b)(7)(C), and the record
does not establish the duration of the job actions engaged in by the
Union. Thus, even if the job actions had a recognitional object as the
Respondent contends, Member Miscimarra believes the record does not
support a conclusion that the job actions continued for more than 30
days or for an unreasonable period of time, which precludes a finding
that the job actions violated Sec. 8(b)(7)(C).
2 We shall modify the judge’s recommended remedy and Order to
conform to our findings and to the Board’s standard remedial language.
In accordance with our decision in Advoserv of New Jersey, Inc., 363
NLRB No. 143 (2016), we shall modify the judge’s recommended tax
compensation and Social Security reporting remedy. We shall substi-
tute a new notice that conforms to the Order as modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
charged mere hours later. The Respondent’s union ani-
mus is demonstrated both by Nebraska Superintendent
Scott Fangman’s discharge of Monge only hours after
that union activity and by the Respondent’s other unlaw-
ful conduct. Thus, we agree with the judge that the Gen-
eral Counsel satisfied his initial burden under Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). We also
agree with the judge that the Respondent failed to show
that it would have discharged Monge absent his union
activity. The judge discredited the Respondent’s testi-
mony suggesting that any supposed inconsistencies re-
garding Monge’s reasons for taking leave had anything
to do with his discharge. As the judge explained, upon
Monge’s return from leave on August 19, Fangman in-
structed Monge to call him later to determine if work
would be available for him the next day. It was not until
Fangman learned of Monge’s participation in a union job
action that afternoon that Fangman had a “change of
heart” and suddenly interpreted Monge’s August 8 letter
confirming his leave plans as a resignation letter.
Again applying Wright Line, we further agree with the
judge that the Respondent violated Section 8(a)(3) and
(1) by discharging Monge from an Iowa jobsite several
days after his unlawful discharge from the Respondent’s
Nebraska operations. On August 22, 2014, the Respond-
ent’s Iowa Superintendent Isaac Otdoerfer told Monge
that he had work for him and to report to a jobsite the
following Monday, August 25. When Monge arrived for
work, however, Otdoerfer inexplicably told Monge that
there was no work for him. As the judge found, in the
interim, Fangman had spoken to Otdoerfer about Monge.
Otdoerfer testified that Fangman told him about Monge’s
Nebraska employment and why it had ended. Fangman’s
knowledge of Monge’s union activity is properly imput-
ed to Otdoerfer. See Dr. Phillip Megdal, D.D.S., Inc.,
267 NLRB 82, 82 (1983). The General Counsel thus
established the Respondent’s union animus and its
knowledge of Monge’s union activity, and the Respond-
ent failed to show that it would have discharged him in
Iowa absent his union activity. The judge properly dis-
credited the Respondent’s purported reasons for the dis-
charge. Moreover, the Respondent’s reliance on
Monge’s omission of his Nebraska work experience from
his Iowa application was plainly pretextual. See Winn-
Dixie Stores, 236 NLRB 1547, 1547 (1978).3

3 Because we find the violation under a Wright Line analysis, we
need not pass on our concurring colleague’s alternative rationale, be-
low.
Member Miscimarra agrees that the Respondent’s discharge of
Monge from the Iowa jobsite violated Sec. 8(a)(3) and (1). Contrary to
his colleagues, however, he would not rely on a Wright Line analysis,
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent unlawfully refused
to hire Jared Skaff, Francis Jacobberger, and Ernest
Adame, we shall order the Respondent to offer them in-
statement and to make them whole for its unlawful con-
duct against them. The duration of their backpay period
shall be determined in accordance with Oil Capitol Sheet
Metal, Inc., 349 NLRB 1348 (2007), petition for review
dismissed 561 F.3d 497 (D.C. Cir. 2009).4 Backpay shall
be computed in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), and interest shall be comput-
ed in accordance with New Horizons, 283 NLRB 1173

which requires imputing Fangman’s knowledge of Monge’s union
activity to Otdoerfer, who made the decision to discharge Monge from
the Iowa jobsite. Although Fangman and Otdoerfer spoke after
Otdoerfer hired Monge and before he discharged him, and although the
judge reasonably inferred that Fangman told Otdoerfer he had fired
Monge, there is no evidence that Fangman told Otdoerfer why he had
fired Monge—i.e., that the reason was Monge’s union activity. Ac-
cordingly, Member Miscimarra would analyze Monge’s Iowa termina-
tion under the “cat’s paw” theory of liability described in Staub v.
Proctor, 562 U.S. 411 (2011), under which it is not necessary to prove
that Otdoerfer knew of Monge’s union activity. In Staub, the Supreme
Court held that an employer is liable for employment discrimination if
a supervisor performs an act motivated by discriminatory animus that is
intended by the supervisor to cause an adverse employment action, and
that act is a proximate cause of the ultimate employment action. Id. at
422. In such a case, the discriminatory animus of the supervisor who
influenced, but did not make, the ultimate employment decision would
be deemed a motivating factor in the employer’s action.
Here, the Board has found that Fangman’s discharge of Monge was
motivated by antiunion animus; the record establishes that after
Otdoerfer hired Monge in Iowa, Fangman and Otdoerfer spoke; and the
judge reasonably inferred that Fangman reported to Otdoerfer that he
had discharged Monge the previous week. Even if Fangman did not
tell Otdoerfer that Monge had engaged in union activity, Member
Miscimarra would find that Fangman’s report to Otdoerfer was moti-
vated by the same antiunion animus that motivated Fangman’s dis-
charge of Monge in Nebraska; it was intended to cause Otdoerfer to
discharge Monge in Iowa; and it was in fact a proximate cause of
Monge’s Iowa termination. Further, Member Miscimarra notes that the
Respondent has failed to provide evidence that Otdoerfer conducted
any independent investigation that uncovered grounds for firing Monge
unrelated to the Nebraska discharge. See Staub, 562 U.S. at 421 (stat-
ing that if the employer’s independent investigation results in an ad-
verse action for reasons unrelated to the supervisor’s original biased
action, then the employer will not be liable). Accordingly, Member
Miscimarra concurs in finding that the Respondent violated Sec. 8(a)(3)
and (1) by discharging Monge in Iowa.
4 Although our Order provides for instatement, the instatement
award is subject to defeasance if, at the compliance stage, the General
Counsel fails to carry his burden of going forward with evidence that
the discriminatees would still be employed if they had not been victims
of discrimination. Oil Capitol Sheet Metal, supra at 1354.
JEFF MACTAGGERT MASONRY, LLC 3
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010).
Having found that the Respondent unlawfully dis-
charged Marvin Monge from his employment with the
Respondent in both Nebraska and Iowa, we shall order
the Respondent to offer him full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed,
and to make him whole for any loss of earnings and other
benefits suffered as a result of his discharges. Backpay
shall be computed in accordance with F. W. Woolworth
Co., above, with interest at the rate prescribed in New
Horizons, above, compounded daily as prescribed in
Kentucky River Medical Center, above.
In addition, we shall order the Respondent to compen-
sate Jared Skaff, Francis Jacobberger, Ernest Adame, and
Marvin Monge for the adverse tax consequences, if any,
of receiving a lump-sum backpay award and to file a
report with the Regional Director for Region 14, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years. See
Advoserv of New Jersey, Inc., 363 NLRB No. 143
(2016); Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB No. 10 (2014).
ORDER
The National Labor Relations Board orders that the
Respondent, Jeff MacTaggert Masonry LLC d/b/a JM2,
Omaha, Nebraska, and Ankeny, Iowa, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to hire job applicants because they are
union organizers, support a union, or seek union repre-
sentation.
(b) Discharging or otherwise discriminating against
employees for supporting the Union or any other labor
organization.
(c) Changing its application policies to discourage un-
ion applicants.
(d) Adopting rules, including the posting of signs, de-
signed to prohibit union applicants from documenting
their applications for employment.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Francis Jacobberger, Jared Skaff, and Ernest Adame im-
mediate employment (instatement) to the positions for
which they applied, or, if such positions no longer exist,
to substantially equivalent positions.
(b) Within 14 days from the date of this Order, offer
Marvin Monge full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(c) Make Francis Jacobberger, Jared Skaff, Ernest
Adame, and Marvin Monge whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against them, in the manner set forth in the
amended remedy section in this decision.
(d) Compensate Francis Jacobberger, Jared Skaff,
Ernest Adame, and Marvin Monge for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region
14, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years.
(e) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful refusal
to hire Francis Jacobberger, Jared Skaff, and Ernest
Adame, and within 3 days thereafter, notify them in writ-
ing that this has been done and that the refusals to hire
will not be used against them in any way.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
Marvin Monge, and within 3 days thereafter, notify him
in writing that this has been done and that the discharges
will not be used against him in any way.
(g) Rescind all changes to its application procedures
that decline to accept applications from walk-ins and
limit its application process to referrals.
(h) Remove all signs and rescind all rules posted or in-
itiated to discourage applicants from applying in person
at the Respondent’s offices and to prohibit applicants
from documenting the circumstances of the submission
of their applications.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(j) Within 14 days after service by the Region, post at
its Omaha, Nebraska and Ankeny, Iowa facilities copies
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
of the attached notice marked “Appendix.”5 Copies of
the notice, on forms provided by the Regional Director
for Region 14, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal 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 Re-
spondent customarily 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 covered by any other material. If the Re-
spondent has gone out of business or closed the facilities
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since July 14, 2014.
(k) Within 21 days after service by the Region, file
with the Regional Director for Region 14 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.
Dated, Washington, D.C. March 22, 2016
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

5 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.”
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to hire job applicants because
they are union organizers, support a union, or seek union
representation.
WE WILL NOT discharge or otherwise discriminate
against you for supporting the Union or any other labor
organization.
WE WILL NOT change our application policies to dis-
courage union applicants.
WE WILL NOT adopt rules, including the posting of
signs, designed to prohibit union applicants from docu-
menting their applications for employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
described above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Francis Jacobberger, Jared Skaff, and Ernest
Adame immediate employment (instatement) to the posi-
tions for which they applied, or, if such positions no
longer exist, to substantially equivalent positions.
WE WILL, within 14 days from the date of the Board’s
Order, offer Marvin Monge full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Francis Jacobberger, Jared Skaff, Ern-
est Adame, and Marvin Monge whole for any loss of
earnings and other benefits resulting from the unlawful
discrimination against them, less any net interim earn-
ings, plus interest.
WE WILL compensate Francis Jacobberger, Jared
Skaff, Ernest Adame, and Marvin Monge for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and WE WILL file with the Regional Director for
Region 14, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusals to hire of Francis Jacobberger, Jared Skaff,
JEFF MACTAGGERT MASONRY, LLC 5
and Ernest Adame, and WE WILL, within 3 days thereaf-
ter, notify each of them in writing that this has been done
and that the refusals to hire will not be used against them
in any way.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Marvin Monge, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharges will not be used against him
in any way.
WE WILL rescind all changes to our application proce-
dures, including declining to accept applications from
walk-ins and limiting our application process to referrals.
WE WILL remove all signs and rescind all rules posted
or initiated to discourage applicants from applying in
person at our offices and to prohibit applicants from doc-
umenting the circumstances of the submission of their
applications.
JEFF MACTAGGERT MASONRY, LLC D/B/A JM2
The Board’s decision can be found at
www.nlrb.gov/case/14–CA–138748 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
William F. LeMaster and Lauren M. Fletcher, Esqs., for the
General Counsel.
Kelly R. Baier, Esq. (Bradley & Riley, PC), of Cedar Rapids,
Iowa, for the Respondent.
Bruce C. Jackson, Jr. (Arnold, Newbold, Winter & Jackson,
P.C.), of Kansas City, Missouri, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Omaha, Nebraska, and Council Bluffs, Iowa, on
March 17-19, 2015. Bricklayers Local 15 filed charges 14-CA-
138748 and 143817 on October 15, 2014, and January 5, 2015,
respectively. Bricklayers Local 3 filed the charge in
18-CA-135993 on September 4, 2014. The General Counsel
issued a consolidated complaint and notice of hearing on Janu-
ary 27, 2015.
This is what is commonly referred to as a salting case.1 The
General Counsel alleges that Respondent has refused to consid-
er several union officials for employment, or hire them for open
positions for which they were qualified. The General Counsel
further alleges that Respondent did so because of these appli-
cants’ association with the Unions and because they indicated
their intention to promote unionization of Respondent’s em-
ployees and to discourage its employees from seeking union
representation in violation of Section 8(a)(3) and (1) of the Act.
The General Counsel also alleges that Respondent dis-
charged employee Marvin Monge, a “covert” salt, from his job
in Nebraska due to his union activities and discharged or re-
fused to hire Monge in Iowa for the same reasons. The General
Counsel further alleges that Respondent violated Section
8(a)(1) in implementing a number of rules and changing its
application procedure to discourage employees from engaging
in union and or other protected activities. Finally, the General
Counsel alleges that Respondent, by foreman George Owen III,
violated Section 8(a)(1) by threatening employees with physical
violence.
There are a number of cases under the Act that apply to salt-
ing cases and thus establish the framework for considering the
facts of this case. The most important of these cases are:
NLRB v. Town & Country Electric, Inc., in which the Su-
preme Court, noting the considerable deference accorded to
the Board’s interpretation of the Act, affirmed that the Board
could lawfully construe the Act’s definition of “employee”
to include paid union organizers. 516 U.S. 85, 94–95, 98
(1995).
FES, 331 NLRB 9 (2000), supplemented 333 NLRB 66
(2001), enfd. 301 F.3d 83 (3d Cir. 2002). In FES, Board
held that:
To establish a discriminatory refusal to hire, the General
Counsel must, under the allocation of burdens set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), first show the
following at the hearing on the merits: (1) that the respondent
was hiring, or had concrete plans to hire, at the time of the al-
leged unlawful conduct; (2) that the applicants had experience
or training relevant to the announced or generally known re-
quirements of the positions for hire, or in the alternative, that
the employer has not adhered uniformly to such requirements,
or that the requirements were themselves pretextual or were
applied as a pretext for discrimination; and (3) that antiunion
animus contributed to the decision not to hire the applicants.
Once this is established, the burden will shift to the respond-
ent to show that it would not have hired the applicants even
inthe absence of their union activity or affiliation.
The FES framework was modified by the Board in Toering

1 Judge Posner in Hartman Brothers Heating and Air Conditioning,
Inc. v. NLRB, 280 F. 3d 1110 (7th Cir. 2002), noted that many employ-
ers suspect that the purpose of salting is not in fact to organize, but to
precipitate the commission of unfair labor practices by startled employ-
ers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Electric Co., 351 NLRB 225, 232–234 (2007). The Board
found that in salting cases, the General Counsel bears the ulti-
mate burden of proving the applicant’s genuine interest in em-
ployment. This burden has two components: (1) that there was
an application for employment; and (2) that if the employer
contests the applicant’s actual interest employment, the General
Counsel must prove by a preponderance of the evidence that
that the applicant was genuinely seeking to establish an em-
ployment relationship with the employer.
Another case which is not directly applicable to the proceed-
ing on the merits before me, but which obviously has great
bearing on the litigation posture of this is case is Oil Capitol &
Sheet Metal, 349 NLRB 1348 (2007). In that case the Board
held that the General Counsel, as part of his existing burden of
proving a reasonable gross backpay amount due, must present
affirmative evidence that the salt/discriminatee, if hired, would
have worked for the employer for the backpay period claimed
in the General Counsel’s compliance specification.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, Jeff MacTaggert Masonry, d/b/a JM2, is a ma-
sonry contractor, which does business in Nebraska and Iowa. It
performed services valued in excess of $50,000 in states other
than Nebraska where its principal office is located, and pur-
chased and received goods valued in excess of $50,000 directly
from points outside of Nebraska during the 12-month period
ending on November 30, 2014. Respondent admits, and I find,
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the Unions,
Bricklayers Locals 3 and 15 are labor organizations within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Jeff MacTaggert established JM2 in 2012. Prior to that he
worked for many years for Seedorff Masonry, a contractor that
is a signatory to collective-bargaining agreements with at least
one Bricklayers local union. JM2 operates out of the same
building in Omaha, Nebraska, as does Seedorff. Donna Smith,
the receptionist at this building, who worked for Seedorff until
about 2011, services both Seedorff and JM2.2 MacTaggert
hired a number of Seedorff employees for JM2, who had been
union members.
The Union Salting Campaign; Respondent Hires Marvin
Monge, a “Covert” Salt
In early 2014, the Bricklayers Unions targeted JM2 and pos-
sibly other nonunion contractors for a salting campaign in the
Omaha area. The Union(s) solicited Marvin Monge, a member
of Local 15 living in Kansas City to go to Omaha and apply for
work. The Union paid his expenses to do so.

2 Smith has worked for Select Construction Concepts since about
2011. She has worked in the building that houses Seedorff and JM2 for
about 14 years.
Monge went to JM2’s Omaha office and filled out an em-
ployment application on March 31, 2014. He spoke to Scott
Fangman, Respondent’s Nebraska superintendent. Monge did
not disclose his union affiliation. There was no discussion
about how recently Monge had worked as a bricklayer and no
discussion as how Monge came to look for work with Re-
spondent. There was also no discussion of any referral policy
for applicants.
On April 6, Scott Fangman called Monge and told him to re-
port to a JM2 jobsite in Fremont, Nebraska, the next day.
Monge worked at several locations for JM2 from April 7 to
August 9, 2014. Fangman, and at least one of Monge’s jobsite
foremen, Ian Lindberg, testified that Monge performed his job
tasks well.
The Union “Job Actions” at Respondent’s Office and Jobsites
Sometime in July 2014, before July 14, the Union(s) began
appearing adjacent to JM2 jobsites and outside Respondent’s
Omaha office. The Union engaged in what it terms a “job ac-
tion.” It displayed a large inflatable cat or pig, banners, and
flyers contending that Respondent jeopardized the wages, bene-
fits, and working conditions established by the Union. The
Union did not engage in picketing and gave no indication that it
was seeking recognition from Respondent.
Union Organizers Apply for Work with Respondent
On about July 1, 2014, Union Organizer Jared Skaff went to
a JM2 jobsite and obtained a JM2 employment application from
JM2 foreman Ian Lindberg.
Organizers Jared Skaff and Ray Lemke Apply on July 14, 2014
On July 14, Union Organizers Jared Skaff, Ray Lemke,3 and
Francis Jacobberger went to Respondent’s Omaha office. Skaff
and Lemke approached the counter inside the main entrance.
Jacobberger sat in a chair against a wall about 10-15 feet from
the counter. Donna Smith, the receptionist, recognized Skaff
from his prior employment with Seedorff Masonry.
Skaff and Lemke were wearing union paraphernalia. They
asked for employment applications, filled out the front side of
the application, attached a résumé, and submitted them. At the
bottom of each résumé was a statement indicating that the ap-
plicant intended to organize JM2 bricklayers. This statement
was highlighted on each résumé.
Skaff turned on a recording device and Jacobberger recorded
the event with his cell phone. This recording demonstrates that
Donna Smith was not upset while the union representatives
were in Respondent’s office and continued to perform her job
functions in a normal fashion (GC Exh. 24).
Jeff MacTaggert came briefly to the counter from his office
which was located down the hall while Skaff and Lemke filled
out their applications. He also briefly acknowledged Skaff’s
presence. MacTaggert was already aware that Skaff was a
union bricklayer. Afterwards, Donna Smith took the applica-
tions to Jeff MacTaggert.
Respondent Hires “Covert” Salt Kirk Zabriskie on July 24
On or about July 23, 2014, William “Kirk” Zabriskie, a Lo-

3 Lemke is not alleged to be a discriminatee in this case.
JEFF MACTAGGERT MASONRY, LLC 7
cal 15 member, who had been recruited by the Union to salt
Respondent, stopped by a JM2 jobsite at a hospital in Fremont,
Nebraska. Zabriskie first spoke to the jobsite foreman and then
to JM2’s Nebraska superintendent, Scott Fangman. Fangman
met Zabriske at the Fremont jobsite on July 24.
Zabriskie, who is about 60 years old, told Fangman that he
had years of experience as a bricklayer. Fangman did not ques-
tion Zabriskie’s physical ability to perform bricklayer’s work
and did not ask him how recent was his work experience.
Zabriskie did not disclose his relationship with the Union.
Zabriskie filled out an employment application. Fangman hired
him on the spot. Respondent also hired a number of other
bricklayers and laborers in July and August 2014.
July 29, 2014, Union Organizers Francis Jacobberger and Ern-
est Adame Apply for Work with Respondent
On July 29, Union Organizers Francis Jacobberger, Ernest
Adame, and Jacob Skaff went to Respondent’s Omaha office.
All three were wearing union paraphernalia. Nobody was at the
receptionist’s counter when they arrived. Jacobberger walked
down a hallway and spoke to an individual who summoned
Donna Smith.
Jacobberger and Adame submitted the front of JM2 em-
ployment applications that they had filled out in advance and
résumés to Smith. These résumés contained a statement that
the applicants intended to organize Respondent’s bricklayers.
That statement was also highlighted.
Prior to July 29, Respondent routinely accepted applications
filled out only on the front. The back of the front of the appli-
cation did not have any spaces to be completed by the appli-
cant. Other parts of the application package, such as the W-4
form were routinely completed by employees after they were
hired. Donna Smith did not tell the applicants that their appli-
cations were insufficient or incomplete.4
Skaff, who entered the office somewhat after Jacobberger
and Adame, sat in a chair and may have made a recording with
his cell phone. He did not approach the counter.
Smith told Jacobberger and Adame that she would pass their
applications on and they left. The video taken by Jacobberger
with a pen-like recording device does not indicate that Smith
was in any way intimidated or upset by this event. The interac-
tion between Jacobberger and Smith lasted no more than about
30 seconds. Adame spoke hardly, if at all. It is not apparent
that Smith was even aware of Skaff’s presence. Respondent
hired bricklayers and laborers after July 29, 2014.
Jacobberger followed up on his application by calling Super-
intendent Scott Fangman on his cell phone in August. I credit
Jacobberger’s testimony that Fangman told him he would check
on the status of the application. I also credit Jacobberger’s
testimony that he made subsequent calls to Fangman, which
were not answered and that his voice messages were not re-
turned.5 In October 2014, Jacobberger went to Respondent’s

4 Smith may have told Jacobberger and Adame that Respondent was
only taking applicants’ names and telephone numbers. However she
received the applications and gave them to Jeff MacTaggert.
5 Fangman at Tr. 300, admitted he had a telephone conversation
with Jacobberger in August and did not contradict Jacobberger on any
material matter. While he testified that Jacobberger only identified
office to inquire on the status of his application. Donna Smith
told him that he needed a referral from a current employee.
When Jacobberger asked Jeff MacTaggert about the referral
policy, MacTaggert told him it was none of his business and
asked him to leave.
Respondent Changes its Application Policy; Posts Signs at
its Office
Almost immediately after the visit by Jacobberger and
Adame, Respondent posted two signs on the glass of the door
to the building occupied by JM2 and Seedorff. One said that
JM2 is not accepting applications at this time. The other said
“No soliciting, No loitering, No cameras.” These policy
changes were made in response to the visits to Respondent’s
offices by the union organizers.
A few days later, on about August 4, Respondent replaced
these with two new signs. One stated that JM2 was currently
taking applications only through its referral program. The other
said solicitation, loitering, photography, or recording on the
premises without prior approval of the tenants was prohibited.
These were new policies. Prior to July 29, Respondent had
accepted employment applications from walk-ins, and had ad-
vertised for help on Craigslist.6
The Covert Salts, Monge and Zabriskie, Divulge Their
Union Affiliation
While working at the JM2 jobsite at Lauritzen Gardens in Ju-
ly, Marvin Monge joined a union “job action” at lunch and
divulged his support for the Unions.
On July 30, the Union engaged in a “job action” at the
Fremont, Nebraska hospital with the inflatable animal, banners,
etc. . . At lunch Kirk Zabriske went out to where the organizers
were standing to demonstrate his support for the Union.
The Termination(s) of Covert Salt Marvin Monge
Monge is Hired and Fired in Nebraska
During his 4 months of employment with Respondent in Ne-
braska, Marvin Monge worked at several different projects
laying brick. As stated previously, he divulged his union affili-
ation while working at Lauritzen Gardens in late July.
In the first week of August 2014, Monge asked his forman at
the Lauritzen Gardens project for a week off to go camping
with his children. The foreman, Ian Lindberg, had no objection
but asked Monge to talk to Superintendent Scott Fangman.
Fangman also approved the time off. At the time Respondent
was encountering delays in performing its work at Lauritzen
Gardens due to the scheduling difficulties with other trades.
While he was away, Monge had Union Organizer Francis
Jacobberger send a certified letter to Fangman stating that he
would have to go to Washington, D.C. to care for his mother
who had taken ill. The letter stated that Monge would return in

himself by his first name, Fangman’s testimony, in so far as it suggests
that at no point did he not know that the caller was Jacobberger, is
internally inconsistent and incredible.
6 In May 2014, Respondent had initiated a program which compen-
sated its employees with a “finder’s fee” for referring job applicants
who were hired. However, it continued to accept applications from
walk-ins until after the union organizers applied for work at its office.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
2 weeks, rather than one.
Monge did not go to the Washington, D.C. area,7 but re-
turned unannounced to the Lauritzen Garden jobsite on Tues-
day, August 19, 1 day after he originally said he would be back.
Fangman told Monge that he did not have any work for him on
August 19, but that Monge should call him back later that day.
Fangman did not ask Monge why he was back early.
After speaking to Fangman, Monge called the union hall. He
was instructed to go to a union “job action” at a JM2 project at
9th and Jones Streets in Omaha. While at the job action,
Monge made eye contact with George Owen, the foreman on
the job, for whom he had worked previously. He noticed Owen
making a call on his cell phone. Later, Monge and an organizer
approached Owen and other employees at lunch and offered
them cold drinks.
At 4 p.m. on August 19, Monge spoke again with Fangman.
Fangman told Monge that he had never seen a letter like the
one he received on Monge’s behalf and that he considered it a
resignation letter.8
Marvin Monge is Hired and Fired in Iowa
On August 21, 2014, Marvin Monge called Isaac Otdoerfer,
JM2’s Iowa Superintendent, and asked if JM2 was hiring.
Otdoerfer met with Monge on August 22. They discussed
Monge’s work experience but Monge did not tell him that he
had worked for Respondent in Nebraska. Monge told

7 Monge’s mother does not live in Washington, D.C. but rather with
several children in suburban Virginia and Maryland.
8 Respondent did not contradict Monge’s testimony on any material
issue. Therefore I credit Monge. Monge’s testimony of his conversa-
tion with Fangman on the morning of August 19 is corroborated by a
recording Monge made of the conversation. Fangman decided to fire
Monge after learning of his presence at the job action at 9th and Jones.
Respondent’s brief at page 35 concedes that Fangman did not consider
that Monge had submitted a resignation letter until his second conversa-
tion with Monge on the afternoon of August 19. The brief does not
even mention Monge’s protected activity, participation in the job action
at 9th and Jones, which occurred between the two conversations.
After Monge testified about the events surrounding his terminations,
Respondent recalled Otdoerfer and also called Owen to the stand on
March 19. It did not recall Fangman. Owen did not contradict
Monge’s testimony that Owen saw him at the job action on August 19
and immediately made a call on his cell phone. In fact Owen did not
mention Monge at all.
Otdoerfer contradicted Monge on a tangential issue, but did not con-
tradict Monge’s testimony that he told Monge he had no work for him
on August 25 or 26 after telling him quite the contrary on August 22.
Otdoerfer admits that he had talked to Fangman about Monge in the
interim.
I do not credit Otdoerfer’s testimony at Tr. 118 and 119. Otdoerfer
testified that he talked to Monge about completing his application after
August 25 or 26. By this time, Fangman had already fired Monge.
According Otdoerfer’s testimony at Tr. 114–115, he’d already talked to
Fangman on August 22, about Monge’s supposed lying about the rea-
sons for his leave and prior employment in Nebraska. I also don’t
credit any of Respondent’s testimony suggesting that any supposed
inconsistencies regarding Monge’s reasons for taking leave had any-
thing to do with his discharge. He was fired as a result of being spotted
at the union job action on August 19. Moreover, anything Monge said
pertaining to this case that was not true was also immaterial, see Hart-
man Brothers Heating & Air Conditioning, Inc. v. NLRB, supra.
Otdoerfer that his last employer was Bonilla, which is a com-
pany owned by a relative of Monge. Otdoerfer hired Monge to
work as a bricklayer on a project at a school in Indianola, Iowa
the next week.
Sometime after Otdoerfer hired Monge, possibly on August
22, Tr. 114, Otdoerfer spoke with Scott Fangman. I infer that
Fangman told Otdoerfer that he had fired Monge the previous
week. He may also have discussed the reasons for Monge’s
discharge and/or the pretext regarding Monge’s inconsistent
reasons for going on leave. Monge reported to the Indianola
jobsite on Monday, August 25 or Tuesday, August 26. The
foreman at the site told Monge that he did not have any work
for him. Monge then spoke with Otdoerfer. Otdoerfer also told
Monge he had no work for him. They never spoke after that.
Essentially, Respondent fired Monge from the Iowa project
before he ever performed any work for it. The reason for his
discharge is related in whole or in part to his participation in the
job action at 9th and Jones on August 19.
George Owen’s alleged threat
In late August or early September, Kirk Zabriskie, who had
already identified himself as a union supporter, was transferred
to Respondent’s jobsite at 9th and Jones Streets in Omaha.
Respondent’s foreman at this site was George Owen.
Zabriske testified that as soon as he walked on the jobsite,
Owen stated that Zabriskie was a “union guy” and that that he
was going kick the ass of the union demonstrators in the park-
ing lot because they were stealing gas from Respondent and
doing stuff to Respondent’s trucks (Tr. 452). At Transcript
473, Owen denied saying anything to Zabriskie about being in
the Union, threatening Zabriskie or making any statement about
whipping Zabriskie’s ass. Owen did not contradict Zabriskie’s
testimony that Owen said he was going to kick the ass of the
participants in the union job action. I find that he did so.
Analysis
With regard to most of the issues in this case very little legal
analysis is required. The General Counsel clearly met it bur-
den under FES, 331 NLRB 9 (2000), supplemented 333 NLRB
66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002). Indeed, Respond-
ent at page 26 of its posttrial brief concedes this point. Re-
spondent was hiring bricklayers and laborers, Jacobberger,
Adame and Skaff had experience relevant to the bricklayer and
laborer positions for which JM2 was hiring.9 Furthermore,
there is no question that anti-union animus was the principal
reason they were not hired. To the extent that Respondent sug-
gests that it did not hire these individuals due to any deficiency
in their applications, I conclude this contention is pretextual.
Had there been anything deficient in their applications, Donna
Smith would have told them so.
There is also no question either that Respondent fired Marvin
Monge from his job in Nebraska because of his union activities

9 At p. 29 of its brief, Respondent states that Jacobberger’s applica-
tion showed no prior experience as a laborer or bricklayer. However,
the résumé attached to that application indicated 16 years of such expe-
rience. Moreover, Respondent hired applicants who were far less spe-
cific about their experience. Contrary to Respondent’s brief, Adame
listed a masonry contractor as one of his two most recent employers.
JEFF MACTAGGERT MASONRY, LLC 9
and fired him (or refused to put him to work) in Iowa for the
same reasons. The timing of Scott Fangman’s change of heart
with regard to Monge, after learning that he participated in a
union job action on August 19, clearly establishes the nexus
between Monge’s discharge and his union activities. I also
infer this was the reason Respondent in effect rescinded its
offer of employment to Monge in Iowa.
George Owen’s remarks to Kirk Zabriskie about kicking the
ass of the union representatives demonstrating at the 9th and
Jones worksite were also coercive regardless of the fact that he
did not threaten violence against Zabriskie. The remark was
made on Zabriskie’s first day on the 9th and Jones worksite.
Owen was aware that Zabriskie was a union supporter and ac-
cording to this record had no basis for assuming that the union
officials were responsible for any of the vandalism he believed
occurred at the worksite.
In other contexts the Board has held that statements about
“kicking your ass” even when directed to the listener do not, if
standing alone, convey a threat of physical harm, Laesco, Inc.,
289 NLRB 549 fn. 1 (1988). In Laesco, the Board found that
such a comment was a “colloquialism” not so egregious that an
employee otherwise engaged in protected activity sacrificed the
protections of the statute. In Lamar Advertising of Janesville,
340 NLRB 979, 980-981 (2003), the Board overruled employer
objections based on statements by two prounion employees that
they would “kick the ass” of another employee. In Town &
Country Supermarkets, 340 NLRB 1410, 1412-1413 (2004), on
the other hand, the Board found an employer was entitled to
discharge an employee. It found the “kick ass” comment in
that case was more than mere bravado, but was a physical chal-
lenge.
Since the General Counsel litigated the Owen comment as a
threat of physical violence, I dismiss this complaint allegation.
Owen clearly did not threaten Zabriskie with physical violence
and Zabriskie could not have seriously thought that Owen was
going to assault the union participants in the job action.
The Toering Issue
Respondent contests the actual interest in employment of un-
ion organizers Jacobberger, Skaff and Adame. Pursuant to
Toering Electric Co., 351 NLRB 225, 232–234 (2007), the
General Counsel must prove that each of these men was genu-
inely seeking an employment relationship with JM2. It is not
entirely clear from Board cases what the General Counsel needs
to do to meet this burden. One could say that it is sufficient if
the applicant shows up in person to apply for work and at the
trial, establishes that he or she is qualified to do the job and
testifies that he or she would have worked for the Respondent
had a job been offered.10 If this is the requisite test, Respond-
ent violated the Act with regard to all three applicants in this
matter, see, e.g., Cossentino Contracting Co., 351 NLRB 495
(2007). The Board in Cossentino held that a lack of recent on-
the-job experience did not necessarily indicate a lack of genu-
ine interest in employment.

10 This is not to say that an employee whose application is submitted
by another employee or even an organizer might not also have a genu-
ine interest in being hired as a salt.
I find that the General Counsel clearly met its burden with
regard to Jacobberger and Skaff. Adame presents a closer ques-
tion. The General Counsel established that Jacobberger has in
fact worked for a non-union contractor recently for a substantial
period while employed by the Bricklayer’s Union as an organ-
izer.11 The fact that he lives in Maryland is irrelevant to wheth-
er he was genuinely seeking work. Construction workers often
live apart from their families while working. Apart from my
awareness of this fact from numerous cases in which I have
presided, Marvin Monge and Kirk Zabriskie established that in
this record. I also infer that the Union would have subsidized
Jacobberger’s living expenses, as it did for Monge and
Zabriskie. Moreover, Jacobberger testified, without contradic-
tion, that if he was hired long-term by Respondent he would
live with an aunt in Omaha.
Jared Skaff lives in the Omaha, Nebraska area and has
worked as a bricklayer from 1998 through March 2014 and
again after February 2015. I thus credit his testimony that he
would have accepted a job with JM2 and I infer the Union
would have made up the difference between union scale and
JM2’s compensation, as it did with Monge and Zabriskie. I do
not credit Jeff MacTaggert’s self-serving testimony as to why
he would not hire Skaff, which is unsupported by any docu-
mentation regarding Skaff’s work history.
Ernest Adame is a union regional representative based in
California. The evidence that supports the proposition that
Adame was genuinely seeking employment is that he applied
for work with Respondent, was qualified for the positions for
which he applied and testified at the trial that he would have
accepted a job if offered.
Unlike Jacobberger, there is no evidence that Adame had ev-
er worked as a bricklayer for any substantial period of time
while also being employed by the Union. When asked if he had
ever worked as a bricklayer while also being a regional repre-
sentative, Adame could not give many specifics. He also stated
that such employment “wasn’t a long period. It was just to
gather some information,” (Tr. 343). Since 2006 he appears to
have worked as a bricklayer only once, for a non-union contrac-
tor named Frazier, for less than a week.12 Nevertheless,
Adame’s lack of recent long-term full-time employment as a
bricklayer, does not, pursuant to Cossentino indicate that he
was not genuinely seeking employment. Thus, I find that the
General Counsel met its Toering burden with regard to Adame,
as well as with Jacobberger and Skaff.
Adame lives in California and has been a regional repre-
sentative since 2006. I infer that the Union paid his expenses
while organizing in Nebraska and would have continued to
have done so if Adame had been hired by Respondent. I draw
this inference from the fact that the Union subsidized the em-
ployment and living expenses of Monge and Zabriskie.

11 Respondent made no attempt to discredit Jacobberger’s testimony
at Tr. 236 about his 2012 salting work as a mason and laborer for
Academy Stone in Annapolis, Maryland. Respondent subpoenaed
Jacobberger’s W-2 forms, so it could easily have attacked the credibil-
ity of this testimony if it could have done so.
12 Adame’s age, 56, is irrelevant to whether he would have accepted
a job with Respondent. JM2 hired Zabriskie, who may be older.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
The 8(b)(7)(C) Issue
Section 8(b)(7)(C), of the Act provides that:
. . . it shall be an unfair labor practice for a labor organization
or its agents:
(7) to picket or cause to be picketed, or threaten to
picket or cause to be picketed, any employer where an ob-
ject thereof is forcing or requiring an employer to recog-
nize or bargain with a labor organization as the representa-
tive of his employees, or forcing or requiring the employ-
ees of an employer to accept or select such labor organiza-
tion as their collective-bargaining representative, unless
such labor organization is currently certified as the repre-
sentative of such employees:
(C) where such picketing has been conducted without
a petition under section 9(c) [section 159(c) of this title]
being filed within a reasonable period of time not to ex-
ceed thirty days from the commencement of such picket-
ing: Provided, That when such a petition has been filed the
Board shall forthwith, without regard to the provisions of
section 9(c)(1) [section 159(c)(1) of this title] or the ab-
sence of a showing of a substantial interest on the part of
the labor organization, direct an election in such unit as the
Board finds to be appropriate and shall certify the results
thereof: Provided further, That nothing in this subpara-
graph (C) shall be construed to prohibit any picketing or
other publicity for the purpose of truthfully advising the
public (including consumers) that an employer does not
employ members of, or have a contract with, a labor or-
ganization, unless an effect of such picketing is to induce
any individual employed by any other person in the course
of his employment, not to pick up, deliver or transport any
goods or not to perform any services.
Nothing in this paragraph (7) shall be construed to permit any
act which would otherwise be an unfair labor practice under
this section 8(b) [this subsection].
The Union sent Respondent a letter on May 13, 2014, dis-
claiming any intention of trying to organize Respondent’s em-
ployees. The letter stated that the Union’s only objective in the
course of its dispute with Respondent was to inform the public
that JM2’s employees received substandard wages. This letter
appears somewhat inconsistent with the Union’s salting cam-
paign. Nevertheless, I conclude that Section 8(b)(7)(C) of the
Act does not have any relevance to this case. First of all, Re-
spondent never filed an unfair labor practice charge alleging
that the Union was in violation of this provision. Moreover, at
no point did Respondent contend that its refusal to hire Skaff,
Adame and Jacobberger and/or to discharge Monge was due to
an alleged violation of Section 8(b)(7)(C) by the Union.
Respondent violated Section 8(a)(3) and (1 )in changing its
application policies in response to the salting campaign. It vio-
lated Section 8(a)(1) in posting no loitering, no soliciting and
no photography signs.
The General Counsel alleges in paragraphs 6 and 7 of the
complaint that Respondent violated Section 8(a)(3) and (1 ) in
changing its application policies in response to the salting cam-
paign. He also alleges that Respondent violated Section 8(a)(1)
in posting no loitering, no soliciting and no photography signs
on the doors to its building.
It is absolutely clear from this record that in changing its ap-
plication process, first to refuse to take applications from walk-
ins, and then to exclude applicants other than referrals, Re-
spondent was motivated by a desire to screen out union mem-
bers, particularly the union organizers. The timing of these
changes to the application process could not make Respond-
ent’s motives clearer. Thus, JM2 violated the Act as alleged,
M. J. Mechanical Services, 325 NLRB 1098, 1108 (1998). The
timing of its posting of the signs prohibiting solicitation, pho-
tography, etc. also leads me to conclude that Respondent was
motivated by a desire to make it more difficult for union organ-
izers to apply for a job and for the applicants to disprove any
claims by Respondent that the union applicants had acted in a
threatening or other inappropriate manner.13
Respondent’s claims that it changed its application process
to protect Donna Smith have no merit. Even after it refused to
let non-referrals apply, anyone could walk into the building and
approach Donna Smith at the counter. Respondent also applied
the referral policy in a discriminatory manner. This is demon-
strated by the fact that Respondent hired Marvin Monge on
August 22, without a referral and without Otdoerfer’s
knowledge of his union affiliation.
The employment applications in the record suggest that other
nonunion applicants were also hired without a referral by a
current employee. While some of the applications of employees
hired indicated a referral, others do not. For those whose appli-
cations that do not indicate who referred the applicant to Re-
spondent, there is no other evidence regarding a referral.
I also find that Respondent failed to establish that any of the-
se changes were motivated by nondiscriminatory insurance
concerns, as alleged at pages 15-16 of its posttrial brief. There
is nothing to support a relationship between Respondent’s
changes to its application process and insurance concerns other
than its bald assertion. For example, while the brief states that
Respondent was concerned with lower skilled employees not
working safely, there is no credible evidence, for example, that
Sam Bryant, hired by Respondent as a laborer on July 30, 2014,
had any skills relevant to masonry work, or that he was referred
to Respondent by a current employee. Moreover, Jeff
MacTaggert admitted that the changes were motivated at least
in part by the visits of the union salts to its office (Tr. 79).14
In summary, the changes to Respondent’s application pro-
cess and the rules posted on the door of its building were prom-
ulgated in response to union activity and therefore violated the

13 While the union organizers did not explain why they needed to
record the application process, Respondent’s claims that Donna Smith
was upset or felt threatened by them, establishes there was some legiti-
mate reason for doing so. The recordings establish that Ms. Smith was
not visibly upset, or threatened in any way. Thus, for example, I dis-
credit Jeff MacTaggert’s testimony that Smith was “rattled, Tr. 36.” If
she even noticed the person filming the July 29 episode, she would
have recognized Jacob Skaff as the photographer.
14 In an affidavit given to the General Counsel on November 18,
2014, MacTaggert did not mention insurance costs as a reason for the
exclusivity of the referral program. I conclude this to be a post-hoc
rationalization and discredit it.
JEFF MACTAGGERT MASONRY, LLC 11
Act, Lutheran Heritage Village-Livonia, 343 NLRB 646, 647
(2004).
CONCLUSIONS OF LAW
Respondent violated Section 8(a)(3) and (1) by refusing to
consider Francis Jacobberger, Jared Skaff, and Ernest Adame
for employment and refusing to hire them in July 2014.
Respondent violated Section 8(a)(3) and (1) in discharging
Marvin Monge on August 19, 2014, and refusing to rehire him
and/or discharging him on August 25, 2014.
Respondent violated Section 8(a)(3) and (1) in first changing
its application process in refusing to accept applications from
walk-ins and then limiting the process to referrals.
Respondent violated Section 8(a)(1) in posting signs on the
doors to its building prohibiting loitering, solicitation, and cam-
eras.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily refused to hire
Francis Jacobberger, Jared Skaff, and Ernest Adame, it must
make them whole for any loss of earnings and other benefits,
consistent with the Board’s decision in Oil Capitol & Sheet
Metal, 349 NLRB 1348 (2007), computed on a quarterly basis,
less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest compounded daily,
Kentucky River Medical Center, 356 NLRB 6 (2010), as com-
puted in New Horizons, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER
The Respondent, Jeff MacTaggert Masonry, d/b/a JM2,
Omaha, Nebraska, and Ankeny, Iowa, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to consider for employment or refusing to hire
any job applicant because the applicant is a union organizer,
supports a union or seeks union representation.
(b) Discharging or otherwise discriminating against any em-
ployee for engaging in union or other protected concerted activ-
ities.
(c) Changing its application policies to discourage union ap-
plicants.
(d) Adopting rules, including the posting of signs, designed
to prohibit union applicants from documenting their applica-
tions for employment.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.

15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of the Board’s Order, offer immediate
employment (instatement) to Francis Jacobberger, Jared Skaff,
and Ernest Adame in the positions for which they applied, or, if
such positions no longer exist, to substantially equivalent posi-
tions.
(b) Within 14 days from the date of the Board’s Order, offer
Marvin Monge full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
(c) Make Francis Jacobberger, Jared Skaff, Ernest
Adame,and Marvin Monge whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
them in the manner set forth in the remedy section of the
Board’s decision.
(d) Within 14 days of the Board’s Order, remove from Re-
spondent’s files any reference to the unlawful refusal to hire
Francis Jacobberger, Jared Skaff, and Ernest Adame and within
3 days thereafter, notify them in writing that this has been done
and that the refusal to hire them will not be used against them.
(e) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharg-
es/refusal to hire of Marvin Monge, and within 3 days thereaf-
ter notify him in writing that this has been done and that the
discharge/refusal to hire will not be used against him in any
way.
(f) File a report with the Social Security Administration al-
locating backpay to the appropriate calendar quarters.
(g) Compensate Francis Jacobberger, Jared Skaff, Ernest
Adame, and Marvin Monge for the adverse tax consequences, if
any, of receiving one or more lump-sum backpay awards cover-
ing periods longer than 1 year.
(h) Rescind all changes to its application procedures that de-
cline to accept applications from walk-ins and limit its applica-
tion process to referrals.
(i) Remove all signs and rescind all rules initiated to dis-
courage applicants from applying in person at Respondent’s
offices and to prohibit applicants from documenting the cir-
cumstances of the submission of their applications.
(j) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(k) Within 14 days after service by the Region, post at its
Omaha, Nebraska facility copies of the attached notice marked
“Appendix A.”16 Copies of the notice, on forms provided by the

16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Regional Director for Region 14, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since July 14,
2014.
(l) Within 14 days after service by the Region, post at its
Ankeny, Iowa facility copies of the attached notice marked
“Appendix B.”17 Copies of the notice, on forms provided by
the Regional Director for Region 18, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since August 19,
2014.
(m) In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means.
(n) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. May 6, 2015
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this No-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

17 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the 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.”
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 refuse to consider for hire or refuse to hire any
job applicant because we believe that they intend to try to or-
ganize our employees or because they seek union representa-
tion by any labor organization including the International Un-
ion of Bricklayers and Allied Craftworkers Local 15, MO-KS-
Ne and Local 3, Iowa..
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting the International Union of Bricklay-
ers and Allied Craftworkers Local 15, MO-KS-Ne and Local 3,
Iowa or any other union.
WE WILL NOT refuse to accept employment applications from
walk-ins.
WE WILL NOT limit our application process to referrals.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Marvin Monge full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL, within 14 days of the Board’s Order, offer imme-
diate employment to Francis Jacobberger, Jared Skaff, and
Ernest Adame in the positions for which they applied, or, if
such positions no longer exist, to substantially equivalent posi-
tions.
WE WILL make Marvin Monge whole for any loss of earnings
and other benefits resulting from his discharge, less any net
interim earnings, plus interest compounded daily
WE WILL make Francis Jacobberger, Jared Skaff, Ernest
Adame, and Marvin Monge whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
them in the manner set forth in the remedy section of the
Board’s decision.
WE WILL, within 14 days of the Board’s Order, remove from
our files any reference to the unlawful refusal to hire Francis
Jacobberger, Jared Skaff, Ernest Adame, and Marvin Monge
and WE WILL, within 3 days thereafter, notify Francis
Jacobberger, Jared Skaff, Ernest Adame, and Marvin Monge in
writing that this has been done and that the refusal to hire them
will not be used against them.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of
Marvin Monge and WE WILL, within 3 days thereafter, notify
him in writing that this has been done and that the discharge
will not be used against him in any way.
WE WILL file a report with the Social Security Administra-
tion allocating backpay to the appropriate calendar quarters.
WE WILL compensate Francis Jacobberger, Jared Skaff, Ern-
est Adame, and Marvin Monge for the adverse tax consequenc-
es, if any, of receiving one or more lump-sum backpay awards
JEFF MACTAGGERT MASONRY, LLC 13
covering periods longer than 1 year.
WE WILL rescind the changes in our employment application
process that refused to accept applications from walk-ins to our
office and the policies that refused to accept applications or
consider for employment any applicant other than a referral.
WE WILL remove all signs and rescind all policies that were
initiated to discourage applicants from documenting the cir-
cumstances of the submission of their application, including
removal of our signs stating no solicitation, no loitering, and no
cameras are allowed.
JEFF MACTAGGERT MASONRY, LLC D/B/A JM2
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/14-CA-138748 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this No-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to consider for hire or refuse to hire any
job applicant because we believe that they intend to try to or-
ganize our employees or because they seek union representa-
tion by any labor organization including the International Un-
ion of Bricklayers and Allied Craftworkers Local 15, MO-KS-
Ne and Local 3, Iowa.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting the International Union of Bricklay-
ers and Allied Craftworkers Local 15, MO-KS-Ne and Local 3,
Iowa or any other union.
WE WILL NOT refuse to accept employment applications from
walk-ins.
WE WILL NOT limit our application process to referrals.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Marvin Monge full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL, within 14 days of the Board’s Order, offer imme-
diate employment to Francis Jacobberger, Jared Skaff, and
Ernest Adame in the positions for which they applied, or, if
such positions no longer exist, to substantially equivalent posi-
tions.
WE WILL make Marvin Monge whole for any loss of earnings
and other benefits resulting from his discharge, less any net
interim earnings, plus interest compounded daily WE WILL make
Francis Jacobberger, Jared Skaff, Ernest Adame, and Marvin
Monge whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them in the man-
ner set forth in the remedy section of the Board’s decision.
WE WILL, within 14 days of the Board’s Order, remove from
our files any reference to the unlawful refusal to hire Francis
Jacobberger, Jared Skaff, Ernest Adame, and Marvin Monge
and WE WILL, within 3 days thereafter, notify Francis
Jacobberger, Jared Skaff, Ernest Adame, and Marvin Monge in
writing that this has been done and that the refusal to hire them
will not be used against them.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of
Marvin Monge and WE WILL, within 3 days thereafter, notify
him in writing that this has been done and that the discharge
will not be used against him in any way.
WE WILL file a report with the Social Security Administra-
tion allocating backpay to the appropriate calendar quarters.
WE WILL compensate Francis Jacobberger, Jared Skaff, Ern-
est Adame, and Marvin Monge for the adverse tax consequenc-
es, if any, of receiving one or more lump-sum backpay awards
covering periods longer than 1 year.
WE WILL rescind the changes in our employment application
process that refused to accept applications from walk-ins to our
office and the policies that refused to accept applications or
consider for employment any applicant other than a referral.
WE WILL remove all signs and rescind all policies that were
initiated to discourage applicants from documenting the cir-
cumstances of the submission of their application, including
removal our signs stating that no solicitation, no loitering, and
no cameras are allowed.
JEFF MACTAGGERT MASONRY, LLC, D/B/A JM2
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/14-CA-138748 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.