Steve Zappetini & Son, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 8, 2014

20-CA-114390 (N.L.R.B. May. 8, 2014)

JD(SF)–21–14
San Rafael, California
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES, SAN FRANCISCO BRANCH OFFICE
STEVE ZAPPETINI & SON, INC.
and Case 20-CA-114390
INTERNATIONAL ASSOCIATION OF
BRIDGE, STRUCTURAL, ORNAMENTAL
AND REINFORCING IRON WORKERS,
LOCAL 790, AFL-CIO
Yasmin Macariola, Esq., for the General Counsel
Dave Zappetini, pro se, for the Respondent
David A. Rosenfeld, Esq., for the Charging Party
DECISION
MARY MILLER CRACRAFT, Administrative Law Judge. At issue is whether Steve
Zappetini & Son, Inc. (Respondent) discharged employee Vernon Kapphan (Kapphan) because
Kapphan was affiliated with International Association of Bridge, Structural, Ornamental and
Reinforcing Iron Workers, Local 790, AFL-CIO (the Union) and because the Union filed an
unfair labor practice charge.
1
The record reveals that Kapphan was not explicitly discharged.
Rather, he was told that he could not return to work without a doctor’s release. I find that
imposition of a mandatory doctor’s release to return to work was, in effect, a discharge. I further
find that Kapphan’s discharge violated Section 8(a)(3), (4), and (1) of National Labor Relations
Act (the Act).
On the entire record, including my observation of the demeanor of the witnesses,
2
and
after considering the briefs filed by counsel for the General Counsel, by counsel for the Charging
Party, and by the Respondent,
3
I make the following

1 All dates are in 2013 unless otherwise referenced. The Union filed the underlying unfair
labor practice charge on September 27 and complaint issued on December 20. The hearing was
held in San Francisco, California on March 27, 2014.
2 Credibility resolutions have been made based upon a review of the entire record and all
exhibits in this proceeding. Witness demeanor and inherent probability of the testimony have
been utilized to assess credibility. Testimony contrary to my findings has been discredited on
some occasions because it was in conflict with credited testimony or documents or because it
was inherently incredible and unworthy of belief.
3 General Counsel’s motion to strike portions of Respondent’s brief which seek to introduce
evidence or assertions not presented at the hearing is granted.
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FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent is a California corporation located in San Rafael, California, engaged in steel
fabrication and installation. Respondent admits that it meets the Board’s direct inflow
jurisdictional standard.
4
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. Respondent admits and I
find that the Union is a labor organization within the meaning of Section 2(5) of the Act.
5
Thus I
find that this dispute affects commerce and that the Board has jurisdiction of this case pursuant to
Section 10(a) of the Act.
II. COLLECTIVE-BARGAINING RELATIONSHIP
Respondent’s co-owner and secretary/treasurer is Dave Zappetini. For the past 50 or 60
years, Respondent has had a relationship with the Union through membership in the North Bay
Steel Fabricators Association, Inc., consisting of Sun Iron and Respondent. The most recent
agreement was effective by its terms from July 1, 2007, through June 30, 2011.
In 2010 or 2011, when Respondent stopped making contributions to the Union trust fund,
the employees stopped receiving health insurance coverage. On September 24, the Union filed an
unfair labor practice charge, Case 20-CA-114603, regarding failure to make the trust fund
payments. In November 2011, Respondent filed for bankruptcy reorganization. The Union trust
fund has filed various claims in the pending bankruptcy proceeding.
III.EMPLOYMENT OF VERNON KAPPHAN
Vernon Kapphan (Kapphan) was employed as a machine operator by Respondent for 10
years, starting in the fall of 2003 and ending in the fall of 2013. His supervisor was Brian
Zastrow, foreman and estimator. As a machine operator, Kapphan operated a hydraulic punch,
hydraulic shears, hydraulic brakes, and a rolling machine. He also performed layout, weld
handrail, and installation of steel. During his 10 years with Respondent, he did not receive any
written discipline.
Kapphan was a member of the Union during his employment with Respondent and
served as the shop steward from January 2012 until his employment ceased. As shop steward for
the 8 to 10 unit employees, Kapphan regularly attended Union meetings. In the summer of 2013,
Zappetini asked Kapphan to look into rest breaks and make sure employees were clocking in and

4 Siemons Mailing Service, 122 NLRB 81, 85 (1958).
5 Respondent admitted that the Union was a labor organization within the meaning of Sec.
2(5) of the Act stating, “[Y]es, Until 2010.” However, based upon the testimony of Erik
Schmidli, Business Manager of the Union, it appears that the Union continues as an organization
in which employees participate existing for the purpose of dealing with employers concerning
wages, hours, and terms and conditions of employment. Thus, I find that the Union satisfies the
requirements of Sec. 2(5) of the Act at all times material.
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out so that customers would not be charged for the break. Thereafter, Kapphan complained to the
Union that Respondent did not pay for employee breaks. According to Kapphan, Dave Zappetini
responded that Kapphan was “chicken shit” and complained that Kapphan told “the Union about
every little thing that was happening in the shop.” Zappetini testified that there was absolutely no
proof that employees were not paid for breaks. Zastrow recalled that Zappetini asked Kapphan
whether there was a conflict of interest because Kapphan called the Union regarding payment for
breaks. I credit Kapphan’s testimony regarding this conversation and note that his testimony was
unrebutted and, to a degree, supported by Zastrow. Kapphan and Zappetini attended contract
negotiations between the Union and Respondent and another employer, Sun Iron, during the fall
of 2013.
Over the course of his tenure with Respondent, Kapphan estimated he was injured on 8 to
10 different occasions. Since beginning his employment with Respondent, Kapphan had been
working while using prescription pain medications. He informed Dave Zappetini about his
prescription drug use during the first few days of his employment. Zappetini responded that as
long as Kapphan could work without any problems, there would be no issue. Kapphan also
mentioned his prescription drug usage to coworkers and took medicines openly while at work in
front of other employees. For a period of about 3 years (2010-2013), Zappetini asked Kapphan
repeatedly to supply a doctor’s statement regarding whether it was safe to work while using the
pain medications. Kapphan did not supply such a document during this time period.
At some point, either in April or September, Kapphan told Zappetini that the pain
medication he was taking was called Norco. Zappetini researched this drug and testified it was a
derivative of Vicodin. Zappetini also learned that Kapphan was taking six doses per day. After
discovering this further information, Zappetini stepped up his requests for a doctor’s release but
there were never any consequences imposed for Kapphan’s failure to produce the release.
Kapphan’s most recent injury was in March 2013 when a transmission fell from a fork
lift onto Kapphan’s chest and arm. Kapphan received medical bills for treatment of this injury
and passed them on to the Union. The Union filed a second amended proof of claim on
September 4 for Kapphan’s medical bills, lost wages, and COBRA insurance payments among
other claims.
Kapphan and Zappetini testified that Zappetini asked Kapphan whether this bankruptcy
claim created a conflict of interest with Respondent. Zappetini’s initial testimony was, “I asked
him if this would – yes, if that would put us into a conflict of interest.” Zappetini’s affidavit to
the NLRB confirms his and Kapphan’s testimony. However, later Zappetini testified that he
actually thought he made this statement earlier with regard to the earlier break pay matter. I find
that although Zappetini may have made the statement with regard to Kapphan’s reporting his
belief that he was not receiving breaktime pay to the Union, as Zastrow recalled, Zappetini’s
affidavit was given during the investigation of the unfair labor practice charge, at a time when
his recollection would have been fresher. Thus, I credit Kapphan’s and Zappetini’s testimony
that Zappetini asked Kapphan in connection with the bankruptcy claim whether Kapphan had a
conflict of interest with Respondent.
Around September 24, Zappetini received an unfair labor practice charge filed by the
Union regarding alleged failure to make trust fund contributions. On September 26, Kapphan
arrived from the galvinzers late. Zappetini confronted him about coming in late. Kapphan and
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Zappetini testified in accord to the following conversation. Zappetini referenced the unfair labor
practice matter asking if Kapphan had determined whether they had a conflict of interest
(Zappetini’s testimony) or telling Kapphan they had a conflict of interest (Kapphan’s testimony).
I find the slight discrepancy (asking versus telling) insignificant. Zappetini and Kapphan agree
on the following testimony: Zappetini then stated that Kapphan had never given him a doctor’s
note certifying that Kapphan could continue working while taking prescription pain medicine.
Zappetini explained that if Kapphan brought in the note, he could continue working.
According to Kapphan, Zappetini added that Erik Schmidli, Union representative, had
lied to him when he said the Union would help him out because the Union never did so.
According to Zappetini, he told Kapphan, “You know, I’ve been after you for I don’t know how
many months to bring in a doctor’s certificate stating, you know, that it’s okay for you to work
while you’re on medication.” Zappetini further told Kapphan that he needed the doctor’s release
because he considered Kapphan’s behavior erratic. I credit both Kapphan and Zappetini as to
these unrebutted statements.
After this conversation, on the following day Kapphan removed his tools. He received a
partial pay period check for September 25 and 26 and another check for accrued vacation pay.
On October 2, Kapphan faxed a letterhead document from his doctor stating, “From a medical
standpoint, Mr. Kapphan has been working for a number of years on his current medications
with no issues.” Zappetini received the faxed doctor’s note but “didn’t think it was a proper
document.” Zappetini contacted the doctor but did not get a response. Zappetini did not contact
Kapphan about the doctor’s note. Zappetini testified:
I – quite frankly, I read that and I didn’t think that it was a proper document. . . . It
did not state . . . anything about . . . the medication he was taking and that it was
okay for him to work there. All it said is he’s been taking it or whatever. They –
the doctor did not know how many he was taking or how often he was taking
them . . . .
IV. ANALYSIS
The General Counsel claims that Respondent discharged Kapphan because of his
protected, concerted activity in violation of Section 8(a)(3), (4), and (1) of the Act. Respondent
claims, on the other hand, that Kapphan voluntarily quit because he did not provide a doctor’s
release to work.
Normally, if an employee voluntarily quits, he cannot claim discriminatory discharge.
Respondent claims that Kapphan voluntarily quit because he simply gathered his tools, thanked
Respondent for 10 years of employment, and never came back. However, at the time he left,
Kapphan was told that he could not return to work without a doctor’s release. This statement was
made to Kapphan in the context of once again being either questioned or told that his Union
activity constituted a conflict of interest with Respondent. Kapphan received his regular
paycheck which was followed the next day by a partial paycheck and a check for accrued
vacation pay. When he did provide a doctor’s release, it was found unacceptable. Thus, I find
that, at best, Kapphan was suspended pending a doctor’s release on September 26 and his
suspension was converted to a discharge on October 2 when his doctor’s release was not
accepted.
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Alternatively, it is possible to analyze these facts as a “Hobson’s choice” constructive
discharge. This analysis similarly yields a finding of discharge. Under some circumstances an
employee who has quit may be deemed to have been constructively discharged. In Intercom I
(Zercom), 333 NLRB 223 (2001), the Board described two theories of constructive discharge.
The traditional theory involves deliberately changing an employee’s working conditions because
of the employee’s protected activity in order to force the employee to resign. Id., fn. 3. The other
alternative, the Hobson’s choice, occurs when an employer conditions continued employment on
abandonment of Section 7 rights and the employee quits rather than complying with the
condition. Id., fn. 4.
In Intercom I, supra, a prounion activist was given 4 days to change her “negative
attitude” or she would be discharged. Reversing the judge, the Board held that the employee,
who quit before the 4 days had elapsed, was constructively discharged. The Board found that the
euphemistic term “negative attitude,” meant her prounion attitude. The Board found that the
employee reasonably believed that she had a choice between abandoning her Section 7 rights or
being fired. The same may be said here. Kapphan was questioned or told for the third time that
his prounion activity might be a conflict of interest with Respondent. At the same time he was
told that he could not return to work without a doctor’s release. This could reasonably be viewed
as a choice between abandoning Union activity or employment. Although I do not believe these
facts indicate that Kapphan quit, if it were found that he did quit, then he did so under
circumstances in which he could reasonably believe that his choice was either to give up his
Union activity or quit.
Having found that adverse action did take place with regard to Kapphan’s employment, it
is necessary to determine whether the adverse action was discriminatory. The General Counsel
claims that Kapphan was discharged for his Union activity and because of Respondent’s
mistaken belief that he filed an unfair labor practice charge. Respondent urges that any adverse
action was taken solely because Kapphan failed to provide a doctor’s release. Thus, this is a dual
motive case and is decided pursuant to a burden shifting analysis based on Mt. Healthy City
School District Board of Education v. Doyle, 429 U.S. 274 (1977). Wright Line, 251 NLRB 1083
(1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). In
Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999), the Board summarized the elements of the
General Counsel’s initial burden of persuasion as follows:
(1) That the employee was engaged in protected activity, (2) that the employer
was aware of the activity, and (3) that the activity was a substantial or motivating
reason for the employer’s action. Motive may be demonstrated by circumstantial
evidence as well as direct evidence and is a factual issue which the expertise of
the Board is peculiarly suited to determine.
Once the General Counsel satisfies this initial showing, the burden of persuasion shifts to
Respondent to demonstrate that the same action would have taken place even in the absence of
the protected conduct. Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004).
As set forth above, it is clear that Kapphan engaged in protected activity by his
membership in the Union, by attending Union meetings in his position as shop steward and
sharing the meeting highlights with unit employees, and by complaining to the Union about
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payment for employee breaks.
6
Further, Respondent was cognizant of Kapphan’s activity as shop
steward, his attendance at negotiations, and his submission of complaints to the Union regarding
employee breaks and failure of Respondent to cover his medical bills for a work-related injury.
Although Kapphan’s name is not mentioned in the unfair labor practice charge filed on
September 24 regarding Respondent’s cessation of trust fund payments, Zappetini attributed this
charge to Kapphan. The absence of Kapphan’s name on the charge, however, does not absolve
Respondent. An employer may violate the Act when it takes action based on a mistaken belief
that the employee has engaged in concerted activity.
7
Further, there is substantial evidence that Respondent’s action was substantially
motivated by Kapphan’s Union activity. The conversation leading to Kapphan being told not to
return to work until he produced a doctor’s slip is cogent proof. In this single conversation,
Zappetini’s mistaken belief that Kapphan was involved in filing an unfair labor practice charge
against him led to discussion of whether Kapphan had a conflict of interest
8
with Respondent and
then to telling Kapphan not to return to work until he could produce a doctor’s statement.
Respondent’s timing of the requirement to produce a doctor’s statement came on the same day
Respondent learned of the NLRB action. This timing alone links the filing of the charge with the
imposition of a doctor’s slip and proves that Respondent’s action was substantially motivated by
the filing of the unfair labor practice charge and Respondent’s mistaken belief that Kapphan was
involved in the filing of the charge.
Moreover, other indicia reinforce this motivational finding. Respondent, through
Zappetini, evidenced animus toward Kapphan’s Union activity by describing his breaktime
payment report to the Union as “chicken shit” and by questioning Kapphan about a conflict of
interest because he reported the breaktime and medical expense matters to the Union. Thus, I
find that the General Counsel has satisfied the initial burden of persuasion and the burden of
persuasion shifts to the Respondent to demonstrate that the same action would have taken place
even in the absence of the protected conduct.
Zappetini testified that the reason Kapphan’s employment ceased was because Kapphan
could not produce a doctor’s release stating that it was safe for Kapphan to work while taking

6 Respondent asserts that Kapphan’s complaint to the Union regarding payment for employee
breaks was based on Kapphan’s erroneous understanding of the contract. It is immaterial whether
Kapphan’s understanding was correct or not. Firth Baking Co., 232 NLRB 772, 772 (1977).
7 Link Belt Co., 311 U.S. 584 (1941). See also World Color (USA) Corp., 360 NLRB No. 37,
slip op. at p. 2 fn. 6 (2014), citing Monarch Water Systems, 271 NLRB 558 at fn. 3 (1984);
Maple City Stamping Co., 200 NLRB 743, 743, and 754 (1972)(discharge based on erroneous
belief that employee filed unfair labor practice charge violates Sec. 8(a)(4)).
8 As the General Counsel points out, the Board has found that telling employees that their
union activity creates a conflict of interest supports a finding of union animus. See Facchina
Construction Co., 343 NLRB 886, 887 fn. 5 (2004), enfd. 180 Fed.Appx. 178 (D.C. Cir. 2006)
(statement that wearing union clothing and insignia creates conflict of interest is evidence of
animus).
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prescription pain medications.
9
Of course, if sufficient evidence supports this nondiscriminatory
reason, Respondent would satisfy its burden to show that Kapphan’s employment would have
ceased even in the absence of Kapphan’s Union activity. However, articulation of a
nondiscriminatory reason is not, alone, sufficient to satisfy Respondent’s burden. To satisfy the
burden, Respondent must affirmatively introduce enough evidence to persuade the trier of fact
that the same action would have taken place absent the employee’s union activity and the
employer’s animus toward that activity.
10
Zappetini testified that on September 26, he told Kapphan that he needed a doctor’s
release because he found Kapphan’s behavior erratic. However, there is no evidence that “erratic
behavior” was discussed with Kapphan at any time until September 26.
11
Zappetini
acknowledged that for “the last couple of years” he knew that Kapphan was working while
taking prescription drug medications. After Kapphan told him that the medication was Norco, a
narcotic pain reliever, Zappetini increased his requests for a doctor’s release.
12
However,
Zappetini further acknowledged that until September 26 he did not take any adverse action when
Kapphan failed to produce a doctor’s release.
Issues of safety in the workplace are, of course, extremely important. The record
indicates that Respondent had concerns about Kapphan’s use of pain medication while working
but for a number of years did not insist that a doctor’s release be on file. As Zappetini testified,
“We kept asking him. And he kept putting it off. And I’d get busy and I’d forget about it.” Then,
on September 26, in the context of discussing Kapphan’s involvement in an unfair labor practice
charge and whether that meant Kapphan had a conflict of interest with Respondent, Zappetini
told Kapphan he could not return to work without a doctor’s release. There is no explanation as
to why the release finally became mandatory after years of discussing it.
The explanation, however, is plainly obvious in the conversation. In almost the same
breath, the filing of the unfair labor practice charge brings up concerns about a conflict of
interest and the doctor’s release becomes mandatory. The two are conjoined in a single
conversation. Respondent’s attempt to defend on the grounds of a legitimate business concern, a
release, is without merit given this context.

9 Zappetini also testified that at the time Kapphan’s employment ceases, work was slowing
down and Kapphan would have been laid off for lack of work. Zappetini did not tell Kapphan
that he was laid off for lack of work. To the extent this might be an issue, it can be fully
addressed in the compliance phase of this proceeding.
10 Hyatt Regency Memphis, 296 NLRB 259, 260 (1989), quoting Roure Bertrand Dupont,
Inc., 271 NLRB 443 (1981), enfd. 944 F.2d 904 (6th Cir. 1991); Hicks Oils & Hicksgas, Inc.,
293 NLRB 84, 84-85 (1989), enfd. 942 F.2d 1140 (7th Cir. 1991).
11 Respondent’s offer of proof regarding an incident that Zappetini believed showed
Kapphan’s “mental lapse” on a project was rejected.
12 Zappetini testified, “I questioned the fact that he was taking medication. I was unaware of
which medications that he was taking. After I found out which medication he was taking, then I
started questioning him more often about the – the doctor’s report.”
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Accordingly, I find that Respondent has failed to show that it would have taken the same
action absent Kapphan’s protected activity. Thus, I find that by insisting that Kapphan produce a
doctor’s release before returning to work, Respondent violated Section 8(a)(3), (4), and (1) of the
Act.
CONCLUSIONS OF LAW
By insisting that Kapphan produce a doctor’s release in order to return to work,
Respondent discriminated against Kapphan for his union activity and because the Union filed a
charge in Case 20-CA-114063 in violation of Section 8(a)(3), (4), and (1) of the Act. These
unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3), (4), and (1) of the Act, I shall order it to cease and desist
and to take certain affirmative action designed to effectuate the policies of the Act.
The Respondent having discriminatorily ordered an employee not to return to work
without a doctor’s release, it must offer him reinstatement and make him whole for any loss of
earnings and other benefits. Backpay shall be 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), enf. denied on other grounds sub. nom. Jackson Hospital Corp. v NLRB,
647 F.3d 1137 (D.C. Cir. 2011). Further, Respondent shall file a report with the Social Security
Administration allocating backpay to the appropriate calendar quarters. Respondent shall also
compensate Kapphan for the adverse tax consequences, if any, of receiving one or more lump-
sum backpay awards covering periods longer than 1 year. Latino Express, Inc., 359 NLRB No.
44 (2012). Additionally, I will order that the customary notice be posted and published in the
usual manner. Consistent with Durham School Services, 360 NLRB No. 5, slip op. at 2-3 (2014),
the notice will include a hyperlink to a copy of this decision as well as a QR code and alternate
information for obtaining the decision by telephone or mail.
The Union requests additional remedies including
 Notice Posting Period: Based on its claim that the 60-day notice posting period is
inadequate, the Union requests posting from either the date the unfair labor practice was
committed or when complaint issued until the notice is actually posted. Thus, using this
case as an example, the Union requests posting either from September 26 (date doctor’s
release made mandatory) or December 20 (date complaint issued) until the date of actual
posting.
 Notice Mailing: The Union further requests, not as an extraordinary remedy as in Bud
Antle, 359 NLRB No. 140 (2013), but as a standard remedy in all cases, that the notice be
mailed to all employees who worked at the facility any time between commission of the
unfair labor practice and when the notice is posted.
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 Notice Description of Unfair Labor Practices Found: The Union also requests that the
notice describe the violations found in detailed language rather than the cursory language
typically used in the WE WILL NOT section of the notice.
 Notice Description of Section 7 Rights: The Union requests that in cases which involve
only the right to engage in union or concerted activity that the standard notice language,
“FEDERAL LAW GIVES YOU THE RIGHT TO . . . Choose not to engage in any of
these protected activities” be eliminated as inappropriate.
 Employer Provided Copies of the Decision: The Union requests that the employer should
be required to make decisions available to employees either by mailing them to
employees or posting them on any existing company intranet.
The Board possesses broad remedial authority and may consider the Union’s requests for
reconsideration of its standard notice language and its posting procedures. See, e.g., Durham
School Services, 360 NLRB No. 85, slip op. at 2-3 (2014) (hyperlink and QR code added to
notice); J. Picini Flooring, 356 NLRB No. 9 (2010) (notices to be placed on intranet); Ishikawa
Gasket America, Inc., 337 NLRB 175, 176-177 (2001) (notices to use plain, clear language
rather than legalese). However, in the absence of Board authority implementing the changes the
Union requests, precedent requires my adherence to the standard notice language and I decline
the Union’s invitation to grant these requests.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended
13
ORDER
The Respondent, Steve Zappetini & Son, Inc., San Rafael, California, its officers, agents,
successors, and assigns, shall cease and desist from discriminatorily requiring Vernon Kapphan
to produce a doctor’s release in order to return to work because he engaged in union or other
protected concerted activity and because International Association of Bridge, Structural,
Ornamental, and Reinforcing Iron Workers, Local 790, AFL-CIO filed an unfair labor practice
charge in Case 20-CA-114063 or 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.
Further, the Respondent shall take the following affirmative action necessary to
effectuate the policies of the Act.
1. Within 14 days from the date of the Board’s Order, offer Vernon Kapphan 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.
2. Make Vernon Kapphan whole for any loss of earning and other benefits suffered as
a result of the discrimination against him in the manner set forth in the remedy

13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order, as provided in Sec. 102.48 of the Rules, shall
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
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section of the decision.
3. Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful requirement that Vernon Kapphan obtain a doctor’s
release before returning to work
writing that this has been done and t
doctor’s release before returning to work will not be used against
4. Preserve and, within 14 days of a request,
Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all ot
electronic copy of such records if stored in electronic form, necessary to analyze
the amount of backpay du
5. Within 14 days after service by the Region, post at its facility in San Rafael,
California copies of the attached notice marked
on forms provided by the Regional Director for Region 20, after being signed by
the Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are
of paper notices, the notices shall be distributed electronically, such as by email,
posting on an intranet or an
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 covered by any other mater
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 employed by the Respondent at any time since September 26, 2013.
6. 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 at
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. May 8, 2014

14 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 o
Labor Relations Board.”
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10
, and within 3 days thereafter notify Kapphan
hat the unlawful requirement that he obtain a
him in any way.
or such additional time as the Regional
her records, including an
e under the terms of this Order.
“Appendix.”
14
Copies of the notice,
customarily posted. In addition to physical posting
internet site, and/or other electronic means, if the
ial. In the event that, during the
employees and former
____________________
Mary Miller Cracraft
Administrative Law Judg
f Appeals Enforcing an Order of the National
)–21–14
in
testing to

,
e
JD(SF)–21–14
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
The National Labor Relations Board has found that we violated the National Labor Relations Act
and has ordered us to post, mail, and abide by this notice.
WE WILL NOT discharge or otherwise discriminate against any of you for supporting
International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local
790, AFL-CIO, or any other union.
WE WILL NOT discharge or otherwise discriminate against any of you because the International
Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 790, AFL-
CIO, or any other union files an unfair labor practice charge with the NLRB.
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 the Board’s Order, offer Vernon Kapphan 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 Vernon Kapphan whole for any loss of earnings and other benefits resulting
from his discharge plus interest compounded daily.
JD(SF)–21–14
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful requirement that Vernon Kapphan obtain a doctor’s release before returning to
work, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and
that this unlawful requirement will not be used against him in any way.
STEVE ZAPPETINI & SON, 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.
901 Market Street, Suite 400
San Francisco, California 94103-1735
Hours: 8:30 a.m. to 5 p.m.
415-356-5130
This decision can be found at www.nlrb.gov/case/20-CA-114390 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, 415-356-5139.