M&M Affordable Plumbing, Inc.

National Labor Relations Board - Administrative Judge Opinions

Nov 19, 2014

13-CA-121459 (N.L.R.B. Nov. 19, 2014)

JD–67–14
Rockdale, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
M & M AFFORDABLE PLUMBING, INC.
and Case 13–CA–121459
JEFFERY CEREN, an Individual
Brigid Garrity, Esq.,
for the General Counsel.
Joshua Feagans, Esq., and
Patrick M. Griffin, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
MELISSA M. OLIVERO, Administrative Law Judge. This case was tried in Chicago, Illinois,
on June 5, 2014. Jeffery Ceren, an Individual, filed the charge on January 29, 2014, and the
General Counsel issued the complaint on March 28, 2014.1 (GC Exh. 1(a), (b), (d).) The
complaint alleges that M & M Affordable Plumbing, Inc., (Respondent) violated Section 8(a)(3)
and (1) of the Act by discharging Charging Party Ceren and Section 8(a)(1) of the Act by
threatening not to rehire Ceren because of his union or protected concerted activities. (GC Exh.
1(d).) Respondent timely filed an answer to the complaint denying the alleged violations of the
Act and asserting six affirmative defenses. (GC Exh. 1(h).) The parties were given a full
opportunity to participate, to introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, including my own observation of the
demeanor of the witnesses,2 and after considering the briefs filed by the General Counsel and
Respondent, I make the following

1 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R. Exh.” for Respondent’s
Exhibit; “GC Exh.” for General Counsel’s Exhibit; “R. Br.” for Respondent’s Brief; and “GC Br.” for the
General Counsel’s Brief.
2 Although I have included citations to the record to highlight particular testimony or exhibits, my
findings and conclusions are not based solely on those specific record citations, but rather on my review
and consideration of the entire record for this case. I further note that my findings of fact encompass the
credible testimony and evidence presented at trial, as well as logical inferences drawn therefrom.
JD–67–14
2
FINDINGS OF FACT
I. JURISDICTION
5
Respondent, a corporation, is a plumbing contractor providing service to both commercial
and residential customers from its facility in Rockdale, Illinois, where it annually purchases and
receives goods valued in excess of $50,000 from other enterprises located within the State of
Illinois, each of which other enterprises had received these goods directly from points outside the
State of Illinois. Respondent admits, and I find, that it is an employer engaged in commerce 10
within the meaning of Section 2(2), (6), and (7) of the Act and that Chicago Journeymen
Plumbers Local Union 130, U.A. (Union) is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES15
A. Overview of Respondent’s Operations and Management Structure
Respondent is a residential and commercial plumbing contractor. As of April 2014,
Respondent employed seven union members (GC Exh. 7; Tr. 38–39, 41.) Michael Malak is 20
Respondent’s owner.3 Respondent admits, and I find, that Malak is a supervisor of Respondent
within the meaning of Section 2(11) of the Act and an agent of Respondent within the meaning
of Section 2(13) of the Act.
B. Respondent’s Collective-Bargaining Relationship with the Union25
The undisputed testimony of Kenneth Turnquist, the Union’s financial secretary/treasurer,
and the uncontroverted documentary evidence of record, establishes that Respondent is a
member of PCA (Plumbing Contractor’s Association) and PAMCANI (Plumbing and
Mechanical Contractors of Northern Illinois) and has assigned these entities the authority to 30
bargain on its behalf with the Union. (GC Exhs. 2, 5; Tr. 22–23; 31–32.) Through PCA and
PAMCANI, Respondent has been signatory to several collective-bargaining agreements with the
Union under Sec. 8(f) of the Act. Respondent has been signatory to an agreement with PCA
since 1995. (Tr. 22.) Respondent was most recently signatory to an agreement with PCA in
effect from June 1, 2010, through May 31, 2013. (GC Exhs. 2, 3.) This agreement was extended 35
for 1 year on June 3, 2013. (GC Exh. 4; Tr. 30.) The most recent PAMCANI agreement was
effective from June 1, 2012, through May 31, 2014. (GC Exh. 6; Tr. 33–34).
In January 2013, the Union merged with two other locals: Local 93 and Local 501. (Tr. 21.)
Following the merger between the Union and Locals 93 and 501, Respondent became party to a 40
collective-bargaining agreement negotiated jointly by PCA and PAMCANI and the Union,
effective June 1, 2014, to May 31, 2017. (GC Exh. 27).

3 Malak did not testify at the hearing.
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3
Since 2002, Respondent has been signatory to a participation agreement with the Union. (GC
Exh. 16; Tr. 66–67.) This agreement authorizes Respondent to make payroll deductions for
various union benefits for Malak. (Id.)
The Union is a local of the United Association of Journeymen and Apprentices of the 5
Plumbing and Pipe Fitting Industry in the United States and Canada, AFL–CIO, CLC (the
“UA”). (GC Exhs. 9, 14.) The UA Constitution and Bylaws apply to all members and they
contain the criteria for receiving an honorable withdrawal card. (GC Exh. 9, p. 106; Tr. 68.) A
union member may seek an honorable withdrawal card if he wishes to go into business for
himself or leaves the trade. (GC Exh. 9, p. 106.) 10
C. Jeffrey Ceren’s Pre-employment Discussions with Mike Malak
Charging Party Jeffrey Ceren is a member of the Union. (Tr. 57, 88.) Ceren has worked in
the plumbing industry since 1981. (Tr. 86.) He operated his own plumbing company from 1994 15
until 2009. (Tr. 87.)
Ceren heard about an opening for an estimator with Respondent through a friend. (Tr. 88.)
Ceren called Malak to inquire about this position on July 31, 2013,4 and left a message with
Malak’s secretary. (GC Exh. 24; Tr. 90.) Malak returned Ceren’s call the next day. (GC Exh. 24; 20
Tr. 91.) During their lengthy telephone conversation, Malak told Ceren that he was looking to
expand his company and hire an estimator for residential and commercial plumbing work. (Tr.
91–92.) Malak and Ceren agreed to talk again in a few days. (Tr. 94.)
Malak and Ceren had another lengthy telephone conversation on August 3. (GC Exh. 24; Tr. 25
94–95.) They spoke more about the estimator’s position. (Tr. 95.) Malak stated that union
wages for a plumber were $150,000 per year and that he could not afford that amount. (Tr. 95.)
Ceren indicated that he understood. (Tr. 95.)
At this point, the subject of Ceren’s union membership arose. Ceren brought up working 30
under a participation agreement, but Malak rejected this idea. (Tr. 97.) Ceren then raised the
idea of withdrawing from the Union in order to work on a salary, at a rate less than union scale
wages. (Tr. 98.) Ceren said he brought up the idea of withdrawal to, “protect me from the Union
and to keep him [Malak] protected from the Union.” (Tr. 98–99.) According to Ceren, Malak
stated that he “would be okay with going that route.”5 (Tr. 99.) Ceren and Malak then agreed to 35
meet in Chicago on August 12. (Tr. 100.) At that time, Ceren resided in Florida. (Tr. 90.)
D. Ceren’s Employment with Respondent
On August 12, Malak and Ceren met in a grocery store parking lot, got in Malak’s truck, and 40
drove to two of Respondent’s remodeling jobs. (Tr. 102.) Ceren took notes on the jobs and met
the builders. (Id.) Malak and Ceren then returned to Malak’s office. (Id.) At Respondent’s
office, Malak asked Ceren to prepare estimates (also called “take offs”) for the two jobs they had

4 All dates contained herein are in 2013, unless otherwise indicated.
5 I credit Ceren’s testimony regarding this conversation based upon documentary evidence discussed
elsewhere in this decision. (See GC Exhs. 10, 11, 15, 15, 18, 20, and 24.)
JD–67–14
4
visited that morning. (Tr. 102–103.) Malak also asked Ceren to return the next morning to look
at blueprints. (Tr. 103.)
As requested, Ceren returned to Respondent’s office the next day and prepared estimates.
(GC Exhs. 17, 23; Tr. 104.) At the end of the day, Malak and Ceren had a conversation 5
regarding Ceren’s employment status with Respondent. (Tr. 105.) Ceren accepted Malak’s offer
to perform estimating work for Respondent. (Tr. 105.) Ceren agreed to a salary of $105,000 per
year, with Ceren paying his own benefits and being allowed to leave work early on certain
occasions. (Tr. 96, 109–110.) This agreement was never reduced to writing. (Tr. 110.)
10
Ceren and Malak further made arrangements for Ceren to be paid for his work on the
previous 3 days. Ceren asked for $3,000 for this work, but accepted Malak’s offer of $2,500.
(Tr. 107.) Ceren was paid in cash. (Id.)
Ceren was told by Malak to start work at 7:00 a.m. each day. (Tr. 110.) Ceren used his 15
personal laptop and cell phone for his work with Respondent, but he used Respondent’s office
phone, fax machine, and copier. (Tr. 110, 111.) Ceren also emailed estimates he prepared to
Malak’s assistant to be printed on Respondent’s printer. (Tr. 114.) Malak set the prices for labor
and materials used by Ceren and told Ceren where to purchase supplies. (Tr. 118–120; 126.)
Malak also signed all of Ceren’s estimates. (GC Exhs. 17, 23; Tr. 123.) Ceren did not sign any 20
contracts on behalf of Respondent. (Tr. 125.) Ceren did not have a company credit card or
access to Respondent’s payroll information.6 (Tr. 126.)
During his tenure with Respondent, Ceren did not hire or fire any employees. (Tr. 125, 127.)
Ceren did not evaluate the performance of Respondent’s employees. (Tr. 127.) He did not set 25
the hours of work for other employees. (Id.) Ceren did not authorize time off for other
employees. (Id.) He did not train, assign work to, or direct Respondent’s employees (Tr. 125,
127.)7
In an effort to avoid any obligation to the Union by employing Ceren, Ceren and Malak30
hatched a scheme by which Ceren was not paid directly by Respondent. Ceren’s wife owns a
travel agency called Travel Consultation and Mediation (TCM). At Ceren’s invitation, Malak
agreed to pay Ceren through TCM. (Tr. 150.) TCM issued invoices for cruises to Malak and
Malak paid the invoices with Respondent’s checks.8 (GC Exh. 21; Tr. 151.) The amount owed
for the “cruises” was in fact the amount owed to Ceren for his work for Respondent. (Tr. 151.) 35
In addition to the fraudulent cruise invoices, Ceren was also paid in cash, tires, and an airline

6 I reject Respondent’s affirmative defense that Ceren was not an employee of Respondent. Section
2(3) of the Act encompasses a broad definition of the word “employee”, and the Supreme Court has found
excluded from that definition only those explicitly so excluded in the language of the Act. Phelps Dodge
Corp. v. NLRB, 313 U.S. 177, 192 (1941). In determining the distinction between an employee and an
independent contractor under Section 2(3) of the Act, the Board applies the common law agency test and
considers all the incidents of the individual’s relationship to the employing entity. Roadway Package
Systems, 326 NLRB 842, 850 (1998). Here Respondent offered no evidence to refute Ceren’s status as an
employee. Thus, I find that Ceren was Respondent’s employee under Section 2(3) of the Act.
7 Respondent, upon whom the burden rests to establish Ceren’s alleged managerial or independent
contractor status, offered no evidence to counter Ceren’s recitation of his job duties and responsibilities.
8 Malak never took these cruises. (Tr. 152.)
JD–67–14
5
ticket. (GC Exh. 22; Tr. 107, 156, 157, 218.) Ceren was also allowed to obtain gasoline free of
charge at Respondent’s pump. (Tr. 160–161.) Ceren was never issued a W-2 or an IRS
Form1099 for his income earned while employed by Respondent. (Tr. 150.)
E. Ceren’s Efforts to Obtain an Honorable Withdrawal Card5
On August 18, Ceren sent a letter to James Coyne, the Union’s business manager, seeking an
honorable withdrawal card. (GC Exh. 10; Tr. 128–129.) In this letter, Ceren stated he had been
offered a position with a union contractor performing non-jurisdictional work, work which he
described as “a management position in [e]stimating.” (GC Exh. 10.) Ceren did not indicate that 10
he was already working for Respondent. At trial, Ceren testified that his position was not
managerial.
Ceren later sent a follow-up email message to Coyne. (GC Exh. 11; Tr. 131.) In his email
message, Ceren stated that he had been trying to reach Coyne about, “a job offer as a 15
manager/estimator with a union/signatory contractor.” (GC Exh. 11.) Ceren indicated that he
had accepted the position, but again did not indicate that he was already working for Respondent.
On September 9, Ceren received a letter from Hugh Arnold, the Union’s attorney. (GC Exh.
12; Tr. 132–133.) Arnold sought further information from Ceren, including the name of Ceren’s 20
employer and a clear description of Ceren’s work. (GC Exh. 12.) Ceren consulted with Malak,
who agreed that Ceren could provide his [Malak’s] name to the Union. (Tr. 134.)
On September 10, Ceren sent a response to Arnold. (GC Exh. 13; Tr. 135–136.) In his
response, Ceren named Respondent as his employer and gave Malak’s name as Respondent’s 25
owner. (GC Exh. 13.) Ceren also gave a lengthy description of his alleged job duties, in which
he attempted to portray himself as a managerial employee of Respondent. (Id.)
Malak asked Ceren for a copy of all his correspondence with the Union to show to the
Union’s business agent. (GC Exh. 18; Tr. 186.) Ceren provided this information by way of an 30
email message, to which he attached copies of all of his correspondence with the Union. (GC
Exh. 18; Tr. 136–137.)
On September 24, Ceren received a letter from Coyne denying his request for an honorable
withdrawal card. (GC Exh. 14; Tr. 139.) Coyne stated that much of the work described by 35
Malak was work traditionally performed by union members. (GC Exh. 14.) Ceren showed
Coyne’s letter to Malak the same day. (Tr. 139.)
F. Respondent Discharges Ceren and Ceren Continues to Seek an Honorable
Withdrawal Card40
After being shown Coyne’s letter, Malak discharged Ceren. (Tr. 139–140.) Malak stated that
he could no longer keep Ceren employed because their agreement was that Ceren was to obtain
an honorable withdrawal card in order to work for Respondent. (Tr. 139–140.)
45
On October 2, Ceren filed an appeal with the General President of the UA regarding the
denial of his application for an honorable withdrawal card. (GC Exh. 15; Tr. 146.) Ceren sent
JD–67–14
6
Malak an email indicating that he had filed an appeal with the UA on October 9. (GC Exh. 20;
Tr. 147–148.) As supported by Ceren’s cell phone records, Malak and Ceren had a telephone
conversation regarding Ceren’s UA appeal on October 10. (GC Exh. 24; Tr. 148.)
According to Ceren, Malak became upset after learning of Ceren’s appeal to the UA because 5
of the “heat” that could be brought upon Respondent by the Union regarding Ceren’s UA appeal.
(Tr. 148–149.) Ceren initially testified that Malak said he “could no longer employ me--would
no longer employ me.” (Tr. 149.) A few minutes later, he said that Malak “would no longer put
me on as an estimator” (Tr. 150.) Thus, on direct examination, Ceren never testified that Malak
said he would not “rehire” Ceren, as alleged in the complaint. Ceren required considerable 10
prompting from counsel for the General Counsel to recall any details regarding this conversation
with Malak. Furthermore, I found his direct testimony regarding his conversation with Malak to
be disjointed and inconsistent.
For the first time on cross examination, Ceren testified that Malak said he would never 15
“rehire” Ceren. (Tr. 223.) Ceren only used the word “rehire” after counsel for Respondent used
the word in one of his questions. Id.
G. Ceren’s Actions After his Discharge by Respondent
20
Following the telephone conversation of October 10, Ceren continued to seek reinstatement
by Respondent. Ceren’s desperation for reinstatement caused him to file charges with the Board
against the Union and Respondent prior to his filing of the charge in the instant case. (GC Exh.
1(a); R. Exhs. 1, 2; Tr. 178, 184, 225.) In one charge, Ceren averred that the Union “failed and
refused to allow [him] to obtain a[n] Estimating/Management position at a company . . .” (R. 25
Exh. 1.) In a later charge, Ceren averred that Respondent, “discharged [him] and thereby
acquiesced in [the Union’s] arbitrary, discriminatory, or bad faith refusal to allow [him] to
withdraw from the Union.” (R. Exh. 2.) Ceren’s statements to the Board in these earlier charges
were clearly false.
30
DISCUSSION AND ANALYSIS
A. Witness Credibility
A credibility determination may rely on a variety of factors, including the context of the 35
witness’ testimony, the witness’ demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the
record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589
(1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all-or-40
nothing propositions—indeed, nothing is more common in all kinds of judicial decisions than to
believe some, but not all, of a witness’ testimony. Daikichi Sushi, 335 NLRB at 622. My
credibility findings are generally incorporated into the findings of fact set forth above.
Only two witnesses testified at the hearing: Charging Party Ceren and Union Financial 45
Secretary-Treasurer Kenneth Turnquist. The testimony of each witness did not contradict that of
the other.
JD–67–14
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Most of Turnquist’s testimony concerned the Union’s territorial and occupational
jurisdiction, the applicability of the UA Constitution and Bylaws, and the Union’s collective-
bargaining agreements; all topics which fall squarely within his sphere of knowledge as the
Union’s financial secretary/treasurer. The remainder of his testimony was devoted to 5
establishing that the Union received correspondence from Ceren seeking an honorable
withdrawal card and that the Union rejected Ceren’s requests. I found Turnquist to be a credible
witness. His testimony was consistent with the documentary evidence presented at the hearing.
Turnquist testified in a direct and forthright manner and his testimony did not waver on cross-
examination. Therefore, I credit Turnquist’s testimony. 10
This case is unusual, however, because Ceren, the General Counsel’s primary witness, has
admitted to engaging in dishonest behavior. In addition to Ceren’s testimony that he has been
untruthful to the Union, he admitted to two instances of making willfully false charges to the
Board and that his affidavits in support of those charges contained false statements. (Tr. 238–15
240.) The difficulty with the case arises because Respondent offered no witnesses to contradict
Ceren’s testimony.
My analysis cannot end with Ceren’s history of making false statements and I cannot
completely discount Ceren’s testimony because he has been untruthful in the past. The Board20
has found that it is insufficient for a judge to say that because a witness has been untruthful in the
past, and regardless of any factors that may tend to support his testimony, he cannot be credited
in a later proceeding. Caesars Atlantic City, 344 NLRB 984 at fn. 1 (2005), citing Double D
Construction Group, 339 NLRB, 303, 306 (2003). Therefore, I have carefully considered all of
Ceren’s testimony and weighed it against the other evidence in this case. The documentary 25
evidence in this case sustains Ceren’s testimony in all material respects regarding his discharge.
I have credited Ceren’s testimony where it is supported by other evidence in this case or it is
inherently probable and consistent with other evidence in this case. However, Ceren gave
contradictory statements regarding what Malak said to him during their telephone conversation
on October 10 and I do not credit his testimony regarding this conversation. 30
B. Respondent Unlawfully Terminates Ceren’s Employment
Under Section 8(a)(3) of the Act, an employer may not discriminate with regard to hire,
tenure, or any term or condition of employment in order to encourage or discourage membership 35
in a labor organization. Nichols Aluminum, 361 NLRB No. 22, slip op. at 3 (2014). A discharge
is unlawful if it is in direct response to protected activity. Santa Fe Tortilla Co., 360 NLRB No.
130 slip op. at 2 (2014); see also UPS Supply Chain Solutions, 357 NLRB No. 106 slip op. at 3
(2011) (upholding judge’s finding that discharge for protected activity violated the Act without
need to make Wright Line analysis). No evidence has been adduced or argument made that 40
Ceren was discharged for any sort of misconduct.
It is undisputed that Ceren engaged in protected union activity by maintaining union
membership and later by requesting a withdrawal card and by appealing the Union’s denial of his
request. (GC Exhs. 10, 11, 13, 15.) Further, the documentary evidence supports my finding that 45
Respondent, through Malak, was aware of this activity. (GC Exhs. 18, 20.) I have found that
Ceren was discharged because he was unable to obtain a union withdrawal card and, therefore,
JD–67–14
8
because he was a union member. I have found no other reason for Ceren’s discharge aside from
his union membership. Respondent, for its part, has put forth no alternate reason for Ceren’s
discharge.
In a single-motive case, where there is no dispute as to the activity for which discipline was 5
imposed, the dual-motive analysis set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), is not applicable or appropriate. See
e.g. Nor-Cal Beverage Co., 330 NLRB 610, 611 (2000); Aluminum Co. of America, 338 NLRB
20, 22 (2002) (judge erred in applying dual-motive analysis where there was a causal connection
between alleged protected activity and resulting discipline). 10
In this case, Respondent’s actions were inherently destructive of employee rights. When
specific evidence of a subjective intent to discriminate or discourage union membership is
shown, many otherwise innocent or ambiguous actions which are normally incident to the
conduct of a business may, without more, be converted into unfair labor practices. NLRB v. Erie 15
Resistor Corp., 373 U.S. 221, 227 (1963). Such proof itself is normally sufficient to destroy the
employer’s claim of a legitimate business purpose, if one is made, and provides strong support to
a finding of that union membership will be discouraged. Id. The uncontroverted evidence in this
case establishes that Ceren was discharged because he did not withdraw from union membership.
Stated another way, Ceren was discharged because of his membership in the Union. Respondent 20
has offered no business justification for its action in discharging Ceren. Under these
circumstances, I conclude that Respondent’s termination of Ceren because he is a union member
is inherently destructive of employee Section 7 rights and, on its face, constitutes unlawful
retaliation against him for his union membership in violation of Section 8(a)(3) and (1) of the
Act. Erie Resistor Corp., 373 U.S. at 227–228; Phelps Dodge Corp v. NLRB, 313 U.S. 177 25
(1941) (“It is no longer disputed that workers cannot be dismissed from employment because of
their union affiliations.”).9
Respondent’s discharge of Ceren because he did not withdraw from union membership also
violates the plain language of the Act. Section 8(a)(3) of the Act prohibits an employer from 30
discrimination that encourages or discourages union membership. 29 U.S.C. § 158(a)(3). The
Board has long held that conditioning employment on promise to refrain from union membership
or protected activity is unlawful. Nichols Aluminum, 361 NLRB No. 22 slip op. at 4 fn. 10
(2014), citing Pratt Towers, Inc., 338 NLRB 61, 64 (2002) (refusal to hire employees unless they
renounced their union membership found violative); see also Mastronardi Mason Materials, 336 35
NLRB 1296, 1296 (2001) (finding violation where respondent conditioned employment of
employees on withdrawal from union membership and acceptance of nonunion terms and
conditions of employment). Refusing to hire an employee in order to avoid their union wage
scale has also been held violative of the Act. Sierra Realty, 317 NLRB 832, 833 (1995).
Respondent here terminated Ceren’s employment because he could not withdraw from union 40
membership. In the instant case, I find that Respondent’s discharge of Ceren because of his
union membership violates the language of Section 8(a)(3) and (1) of the Act.

9 Both the General Counsel and respondent analyzed the facts of this case using the burden shifting
framework of Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
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9
In agreement with the General Counsel, I further find that conditioning Ceren’s employment
on withdrawal from the Union required him to enter into an unlawful yellow dog contract.10
Since the enactment of the Norris-LaGuardia Act (29 U.S.C. §101 et seq.) in 1932, all variations
of the yellow dog contract have been deemed invalid and unenforceable, including “[a]ny
promise by a statutory employee to refrain from union activity.” Barrow Utilities & Electric, 308 5
NLRB 4, 11 fn. 5 (1992). They were also a factor which Congress considered when passing the
Wagner Act (the 1935 predecessor to the National Labor Relations Act). First Legal Support
Services, 342 NLRB 350, 362 (2004). Section 7 of the Wagner Act for the first time gave
employees the specific right to engage in union activity, making it an unfair labor practice to
condition employment on the relinquishment of that right. Id. Thus, de facto in 1935, the yellow 10
dog contract became and has remained illegal as a violation of Section 8(1), and as of 1947,
Section 8(a)(1). Id. Similarly, insistence upon such a contract became a hire and tenure
violation under Section 8(3), now Section 8(a)(3). First Legal Support Services, 342 NLRB at
362–363 (2004). In this case, Respondent required Ceren to enter into a yellow dog contract by
conditioning Ceren’s employment upon his withdrawal from union membership. When Ceren 15
was unable to withdraw from union membership, Respondent discharged him. Respondent’s
requirement that Ceren enter into a yellow dog contract, and its discharge of Ceren for failing to
do so, violate Sections 8(a)(3) and (1) of the Act.
Moreover, even if I were to apply these facts to the burden shifting framework of Wright 20
Line as the parties have done in their briefs, I would find that Respondent violated the Act.
Under Wright Line, to establish unlawful discrimination on the basis of union activity, the
General Counsel must make an initial showing that antiunion animus was a substantial or
motivating factor for the employer’s action by demonstrating that: (1) the employee engaged in
union activity; (2) the employer had knowledge of that union activity; and (3) the employer 25
harbored antiunion animus. Nichols Aluminum, 361 NLRB No. 22, slip op. at 3 (2014), citing
Amglo Kemlite Laboratories, 360 NLRB No. 51, slip op. at 7 (2014). Proof of animus and
discriminatory motivation may be based on direct evidence or inferred from circumstantial
evidence. Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184 (2004); Ronin Shipbuilding,
330 NLRB 464, 464 (2000). If the General Counsel meets his burden, then the burden shifts to 30
Respondent to prove that it would have taken the same action absent the employee’s protected
conduct. Wright Line, 251 NLRB at 1089; NLRB v. Transportation Management Corp., 462
U.S. 393, 399–403 (1983).
With respect to the General Counsel’s initial showing, it is undisputed that Ceren engaged in 35
several forms of union activity: first and foremost by maintaining union membership, and then
later by soliciting a withdrawal card and appealing the Union’s denial of his solicitation. (GC
Exhs. 10, 11, 13, 15.) Furthermore, the documentary evidence supports my finding that
Respondent, through Malak, was aware of this activity. (GC Exhs. 18, 20.) At issue in this case
is whether counsel for the General Counsel demonstrated that the Respondent harbored antiunion 40
animus, thus meeting her initial burden. I find she has.

10 A yellow dog contract is a private agreement between an employee and employer, where the
employee promises not to join, become, or remain a member of any labor organization. First Legal
Support Services, 342 NLRB 350, 362 (2004).
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10
The Board relies on both circumstantial and direct evidence in determining whether the
conduct in question was unlawfully motivated. Fluor Daniel, Inc., 311 NLRB 498 (1993).
Improper motivation may be inferred from several factors, including pretextual and shifting
reasons given for an employee’s discharge and the timing between an employee’s protected
activity and the discharge. Temp Masters, Inc., 344 NLRB 1188, 1193 (2005). 5
The timing of Ceren’s discharge supports a finding of improper motivation. Ceren received a
letter from the Union indicating its refusal to grant the requested honorable withdrawal card on
about September 24. (GC Exh. 14.) Ceren was terminated contemporaneously with his sharing
of the Union’s refusal to grant him an honorable withdrawal card with Malak. (GC Exh. 14; Tr. 10
139.) Animus can be inferred from the relatively close timing between an employee’s protected
concerted activities and his discipline. K-Air Corp., 360 NLRB No. 30, slip op. at 2 (2014)
(timing of discharge, within 1 day of learning of employee’s union affiliation, provides evidence
of animus); see also La Gloria Oil & Gas Co., 337 NLRB 1120 (2002) (timing of discipline
imposed 4 months after service on bargaining team and ULP hearing appearance suspect). Thus, 15
the timing of Ceren’s discharge shows that it was motivated by his union activity.
Furthermore, Respondent’s multiple and shifting justifications for its termination of Ceren
provide strong evidence of its unlawful motive. When an employer is unable to maintain a
consistent explanation for its conduct, but rather resorts to shifting defenses, “it raises the 20
inference that the employer is ‘grasping for reasons to justify’ its unlawful conduct.” Meaden
Screw Products Co., 336 NLRB 298, 302 (2001), citing Royal Development Co. v. NLRB, 703
F.2d 363, 372 (9th Cir. 1983). See also Master Security Services, 270 NLRB 543, 552 (1984)
(animus demonstrated where an employer used a multiplicity of reasons to justify disciplinary
action). Respondent advanced a multitude of contradictory reasons for its actions in its answer to 25
the complaint and brief. Respondent has asserted: Ceren was never hired, employed, or
discharged by Respondent; Ceren was employed by another employer (TCM); Ceren was an
independent contractor; Ceren’s position was outside of the Union’s occupational jurisdiction;
Ceren’s position was managerial; and, Respondent would have taken the same action against
Ceren in the absence of any Union or protected activity on Ceren’s part. Clearly Respondent’s 30
last defense, that it would have taken the same action against Ceren absent his union activity, is
wholly inconsistent with its first affirmative defense that it never hired or employed Ceren. I
find that Respondent’s multiple and conflicting defenses provide evidence of its unlawful motive
in terminating Ceren. Therefore, I find that the General Counsel has met his initial burden of
persuasion under Wright Line. 35
As the General Counsel has made an initial showing of discrimination, the burden shifts to
Respondent to show, as an affirmative defense, that it would have terminated Ceren in the
absence of his union activities. Respondent has made no such showing. Respondent offered no
evidence to rebut Ceren’s testimony, as corroborated by his email messages, regarding Malak’s 40
knowledge of Ceren’s union activity and Malak’s reaction to Ceren’s union activity. Thus, even
under the burden shifting analysis of Wright Line, I find that Respondent violated Sections
8(a)(3) and (1) of the Act in discharging Ceren.
45
JD–67–14
11
C. The General Counsel Did Not Establish by a Preponderance of the Evidence that
Respondent Unlawfully Threatened Not to Rehire Ceren
Under Section 7 of the Act, employees have the right to engage in concerted activities for
their mutual aid or protection. Section 8(a)(1) of the Act makes it unlawful for an employer, via 5
statements or conduct, to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in Section 7. Mediplex of Danbury, 314 NLRB 470, 472 (1994). The test for
evaluating whether an employer’s conduct or statements violate Section 8(a)(1) of the Act is
whether the statements or conduct have a reasonable tendency to interfere with, restrain, or
coerce union or protected activities. KenMor Electric Co., 355 NLRB 1024, 1027 (2010) (noting 10
that the employer’s subjective motive for its actions is irrelevant); Yoshi’s Japanese Restaurant,
Inc., 330 NLRB 1339, 1339 fn. 3 (2000) (same); see also Park N’ Fly, Inc., 349 NLRB 132, 140
(2007). The General Counsel bears the burden of proving unlawful threats by a preponderance
of the evidence. Blue Flash Express, 109 NLRB 591, 591–592 (1954).
15
It cannot be disputed that Ceren had a telephone conversation with Malak on October 10.
(GC Exh. 24.) However, I cannot credit Ceren’s disjointed and inconsistent testimony regarding
the content of his conversation with Malak. Ceren testified on direct examination that Malak
said that he could not employ Ceren, or that he would not employ Ceren, or that he would not put
him [Ceren] on as an estimator. He made these three divergent statements within the course of a 20
few minutes. He also required considerable prompting by counsel for the General Counsel to
give any details about this conversation. Thus, I do not credit Ceren’s testimony regarding what
was said by Malak during their conversation on October 10.
The complaint states that Respondent violated the Act by threatening not to “rehire” Ceren. 25
In fact, Ceren did not testify that Malak threatened not to “rehire” him until cross-examination,
and then only in response to a question by Respondent’s counsel that used the word “rehire.”
Because I cannot credit Ceren’s testimony regarding this conversation, I cannot find that the
General Counsel met it’s burden to establish by a preponderance of the evidence that Respondent
threatened “not to rehire” Ceren. Accordingly, I recommend that complaint paragraph V be 30
dismissed.
D. Respondent’s Affirmative Defenses
In making my findings of fact above, I have rejected Respondent’s claim that it never hired, 35
employed or discharged Ceren. I have also rejected Respondent’s assertion that Ceren was not
an employee under the Act.
Respondent asserts that Ceren’s position was managerial in nature or that Ceren was an
independent contractor. Both of these defenses are rejected. It is well-settled that the party 40
asserting managerial status has the burden of proving it. George Mee Memorial Hospital, 348
NLRB 327, 333 (2006). The definition of managerial employee has been construed narrowly
because, as with supervisory status those employees, who fall within that category, are denied
substantial statutory rights. Curtis Industries, 218 NLRB 1447, 1448 (1975). Similarly, the
burden of proof as to independent contractor status lies with the party asserting it. Community 45
Bus Lines, 341 NLRB 474 (2004); BKN, Inc., 333 NLRB 143 (2001). The Board applies the
JD–67–14
12
common law agency principles set forth in the Restatement 2d, Agency §220(2) in determining
independent contractor status. Roadway Package Systems, 326 NLRB 842, 850 (1998).
Applying these principles to the instant case, I conclude that Respondent has failed to meet
its burden of proof that Ceren’s position was managerial or, alternatively, that Ceren was an 5
independent contractor. The burden to establish managerial or independent contractor status
rests with the party asserting it. George Mee Memorial Hospital, 348 NLRB 327, 333 (2006);
Community Bus Lines, 341 NLRB 474 (2004). Although, as Respondent states in its brief, Ceren
repeatedly advised the Union that his position with Respondent was managerial in nature, these
statements do not make it so. Ceren admitted that he described his position as managerial in 10
order to obtain an honorable withdrawal card from the Union. His description of his actual
duties at the hearing did not satisfy Respondent’s burden in establishing that Ceren’s position
was managerial.11 The burden is not on the General Counsel to establish that Ceren was not an
independent contractor or that Ceren’s position was not managerial; the burden rests squarely on
Respondent to affirmatively establish that Ceren was either an independent contractor or 15
manager. Respondent has failed to do so.
I further reject Respondent’s claim that Ceren was an employee of TCM. Ceren’s
uncontroverted testimony, supported by the cruise invoices produced at trial, establishes that
Ceren’s wife issued the cruise invoices to Respondent as a subterfuge for Malak to pay Ceren 20
using Respondent’s business checks. Ceren testified against his pecuniary interest, and that of
his wife, by admitting that this arrangement was a sham meant to hide Ceren’s wages from the
Union. Ceren further testified against his pecuniary interest that he never received tax forms
related to these payments. Respondent could have easily refuted the evidence concerning the
cruise invoices and company checks. However, Respondent chose to present no evidence to 25
support this affirmative defense and I find that it has no merit.
Additionally, I reject Respondent’s defense that Ceren’s position was outside of the
occupational jurisdiction of the collective-bargaining agreement. A great deal of testimony was
adduced at the hearing concerning whether an estimator’s position was within the bargaining 30
units contained in Respondent’s collective-bargaining agreements with PCA and PAMCANI.
However, in reviewing the record, I find that this has no bearing on whether or not Respondent
committed an unfair labor practice. As I have found, Ceren was engaged in protected activity by
maintaining his union membership. In addition, I have found that Respondent discharged Ceren
because of his union membership. Whether or not Ceren’s work for Respondent was bargaining 35
unit work is not material to my findings. Instead, the fact that Ceren’s discharge was a direct
result of his status as a union member is what is relevant here. Therefore, I reject this affirmative
defense.
Additionally, Respondent’s defense that it would have taken the same action against Ceren in 40
the absence of any protected activity is both contrary to its other defenses and has no merit.
Respondent has presented no evidence as to why it took its action discharging Ceren. As such,

11 I do not accept Respondent’s argument that Ceren’s failure to list his experience with Respondent
on his LinkedIn page establishes that Ceren was not an employee of Respondent. (R Exh. 3.) Rather, I
find it more plausible that Ceren did not list his experience with Respondent given that it seems unlikely
that Malak would provide Ceren with a positive reference.
JD–67–14
13
Respondent has failed to establish that it would have taken the same action against Ceren in the
absence of his protected concerted activity.
While I do not condone the untruthfulness of Ceren in dealing with the Union and the Board,
I also cannot condone the actions of Malak. The credible evidence in this case clearly 5
demonstrates that Malak was a willing participant in Ceren’s design. Malak participated in a
joint scheme, avoiding his obligations to the Union and to the government, by paying Ceren
through TCM and through various other untraceable means. Furthermore, although Ceren
initially agreed to withdraw from the Union, it was Malak who fired him when he failed to do so.
Respondent should not be rewarded for this behavior. Furthermore, the Board has held that the 10
equitable unclean hands doctrine does not operate against a charging party because Board
proceedings are not conducted for the vindication of private rights, but are brought in the public
interest and to effect statutory policy. California Gas Transport, 347 NLRB 1314, 1326 fn. 36
(2006).
15
In sum, none of Respondent’s affirmative defenses has merit under the facts as I have found
them. Therefore, I find that Respondent violated Section 8(a)(3) and (1) of the Act by
discharging Ceren because of his union and protected activity.
CONCLUSIONS OF LAW20
1. Respondent is an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Chicago Journeymen Plumbers Local Union 130, U.A. (Union) is a labor organization 25
within the meaning of Section 2(5) of the Act
3. Respondent violated Section 8(a)(3) and (1) of the Act when it discharged Ceren.
4. Respondent did not otherwise violate the Act as alleged in the complaint. 30
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall order 35
it to cease and desist and to take certain affirmative action designed to effectuate the policies of
the Act.
The Respondent, having discriminatorily discharged Jeffrey Ceren, must offer him
reinstatement and make him whole for any loss of earnings and other benefits. Backpay shall be 40
computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
Respondent shall file a report with the Social Security Administration allocating backpay to 45
the appropriate calendar quarters. Respondent shall also compensate Jeffrey Ceren for the
JD–67–14
14
adverse tax consequences, if any, of receiving one or more lump-sum backpay awards covering
periods longer than 1 year. Tortillas Don Chavas, 361 NLRB No. 10 (2014).
Further, Respondent shall be required to remove from the personnel file of Jeffery Ceren any
reference to his unlawful termination, and advise him in writing that this has been done. In 5
addition, Respondent shall be required to cease and desist from engaging in unlawful
discriminatory conduct and to post an appropriate notice, attached hereto as an “Appendix.”
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended1210
ORDER
The Respondent, M & M Affordable Plumbing, Inc., Rockdale, Illinois, its officers,
agents, successors, and assigns, shall15
1. Cease and desist from
(a) Discharging or otherwise discriminating against any employee for engaging in union
or other protected, concerted activity.20
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
25
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Jeffery Ceren 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 30
previously enjoyed.
(b) Make Jeffery Ceren whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him in the manner set forth in the remedy section
of the decision.35
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge of Jeffery Ceren, and 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.40
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated

12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–67–14
15
by the Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
5
(e) Within 14 days after service by the Region, post at its facility in Rockdale, Illinois
copies of the attached notice marked “Appendix.”13 Copies of the notice, on forms
provided by the Regional Director for Region 13, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where 10
notices to employees are customarily posted. In addition to physical posting of paper
notices, the 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. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not altered, defaced, or 15
covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved
in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the
Respondent at any time since September 24, 2013. 20
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
25
Dated, Washington, D.C. November 19, 2014
30
_____________________________
Melissa M. Olivero
Administrative Law Judge35

13 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT terminate any employee for engaging in union or other concerted activities
protected under Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Jeffery Ceren full reinstatement to
his former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.
WE WILL make Jeffery Ceren whole for any loss of earnings and other benefits resulting from
his discharge, less any net interim earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
WE WILL compensate Jeffery Ceren for the adverse tax consequences, if any, of receiving one
or more lump-sum backpay awards covering periods longer than 1 year.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful discharge of Jeffery Ceren, 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.
M & M AFFORDABLE PLUMBING, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
The Rookery Building, 209 South LaSalle Street, Suite 900, Chicago, IL 60604-5208
(312) 353-7570, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/13-CA-121459 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER,
(312) 353-7170.