Zimmerman Plumbing & Heating Co.

National Labor Relations Board - Board Decisions

Jul 18, 2001

334 N.L.R.B. 586 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 586
Zimmerman Plumbing and Heating Co., Inc. and
Plumbers and Pipefitters Local 357, United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, AFL–CIO. Case 7–CA–
41389
July 18, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND TRUESDALE
On June 2, 1999, Administrative Law Judge Bruce D.
Rosenstein issued the attached decision. The Respon-
dent, Zimmerman Plumbing and Heating Co., filed ex-
ceptions and a supporting brief. The General Counsel
filed an answering brief, in which the Charging Party,
Plumbers and Pipefitters Local 357, joined.
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, and conclusions only
to the extent consistent with this Decision and Order.
I. BACKGROUND
The complaint alleges that the Respondent violated
Section 8(a)(3) and (1) of the Act by failing to offer for-
mer unfair labor practice strikers Tim O’Brien and James
Fogoros reinstatement to newly created positions that
were substantially equivalent to their prestrike positions.
The complaint also alleges that the Respondent violated
Section 8(a)(3) and (1) by failing to offer O’Brien and
Fogoros certain of these new positions because of their
union activity. The judge found the violations, and the
Respondent has excepted to those findings.
II. FACTS
The Respondent fabricates sheet metal products at its
facility in Kalamazoo, Michigan, and installs these prod-
ucts at various construction sites in Michigan. Certain of
the Respondent’s employees engaged in an unfair labor
practice strike against the Respondent from August 22 to
September 6, 1995.1 Among the unfair labor practice
strikers were O’Brien, an apprentice sheet metal worker,
and Fogoros, a journeyman sheet metal worker.

1 Contrary to the Respondent’s contention, we agree with the
judge’s finding that the strike was an unfair labor practice strike. The
strike was motivated in part by the Respondent’s discharge of employee
Steve Stone, which the Board found unlawful in a prior related case.
See Zimmerman Plumbing Co., 325 NLRB 106, 119 (1997), enfd. in
pertinent part 188 F.3d 508 (6th Cir. 1999) (unpublished table decision)
(Zimmerman I). We do not rely, however, on the judge’s incorrect
statement that the Board in Zimmerman I found that the strike was an
unfair labor practice strike.
O’Brien began working for the Respondent in 1991.
As an apprentice sheet metal worker, O’Brien spent ap-
proximately 70 to 80 percent of his time fabricating sheet
metal in the shop at the Respondent’s Kalamazoo facility.
In early 1995 the Respondent promoted O’Brien to a
working foreman position in the shop. In this position,
O’Brien continued fabricating sheet metal, but also oper-
ated the “Vicon” machine2 and other tools, including
brakes and drills. In addition, O’Brien drove a truck on
four or five occasions in 1995 to deliver supplies to a par-
ticular jobsite.3 Immediately prior to the strike, O’Brien
was earning $11 per hour and receiving health benefits
partially funded by the Respondent. O’Brien also was
eligible to participate in the Respondent’s 401(k) retire-
ment plan.
The Respondent hired Fogoros in 1986. As a journey-
man sheet metal worker, Fogoros worked primarily in the
field. He performed some sheet metal work himself and
oversaw a crew of two to five workers as they installed
sheet metal and heating, ventilation, and air-conditioning
(HVAC) equipment. Fogoros rarely drove any of the
Respondent’s trucks. He earned between $14 and $20 per
hour and apparently was also eligible to participate in the
Respondent’s health and retirement plans.
As stated, the August 22, 1995 unfair labor practice
strike ended on September 6, 1995. On that day the
strikers, including O’Brien and Fogoros, made an uncon-
ditional offer to return to work. The Respondent in-
formed O’Brien and Fogoros that it had no available
work for them, but that the Respondent would place them
on a preferential hiring list and recall them when work
was available in their respective job classifications.4
O’Brien followed up with the Respondent in January
1997, but was told that no work was available for him.
In the meantime, O’Brien and Fogoros each worked
for other employers. Between September 6, 1995, and
February 1997, O’Brien worked for several sheet metal
2 The vicon machine is a computer-guided tool used for cutting fit-
tings for sheet metal ductwork.
3 On May 15, 1995, the Respondent transferred O’Brien from the
sheet metal shop to the field. On September 27, 1995, while O’Brien
was on layoff after the strike, the Respondent removed him from a
sheet metal apprentice program and reclassified him as a “helper.” The
Board in Zimmerman I found that all of these actions were unlawful.
See 325 NLRB at 112–114, 120, 122. Consequently, O’Brien’s work
in the sheet metal shop is the appropriate reference point for our discus-
sion of the issues presented in this case. Cf. Rose Printing Co., 304
NLRB 1076, 1076 fn. 3 (1991) (in analyzing question of whether strik-
ers obtained substantially equivalent employment elsewhere, the Board
will not consider unlawfully diminished wage and benefit levels in the
strikers’ prestrike classifications).
4 The Respondent unlawfully discharged several of the other strik-
ers, and one striker resigned his employment with the Respondent. See
Zimmerman I, 325 NLRB at 121–122.
334 NLRB No. 81
ZIMMERMAN PLUMBING & HEATING CO. 587
contractors and completed his apprenticeship. In Febru-
ary 1997 O’Brien obtained a job as a journeyman sheet
metal worker with W. Soule, Inc. Fogoros also worked
for several contractors following his layoff. In June 1997
he began working for Diversified Mechanical, Inc. as a
journeyman sheet metal worker.
As of the February 9–10, 1999, hearing in this case,
the Respondent had not recalled either O’Brien or
Fogoros. The Respondent claimed that, between Sep-
tember 1995 and the hearing, it had no openings for ap-
prentice or journeymen sheet metal workers. However,
the Respondent acknowledged that it hired new employ-
ees during that time period. In particular, the Respon-
dent hired several new employees in 1998, including Ed
Weese, Bill MacPherson, Matthew Bielski, Austin
Wielenga, Benjamin Emery, and Tammy Ickes.
The Respondent hired Ed Weese on January 20, 1998,
as a “material expediter,” a new classification, at a wage
rate of $8 per hour.5 Weese mostly performed truck driv-
ing duties until he resigned in early February 1998. On
February 16 the Respondent hired Bill MacPherson as a
material expediter at a wage rate of $12 per hour.
MacPherson spends most of his time in the Respondent’s
sheet metal shop, where he performs sheet metal work,6
coordinates deliveries to various jobsites, keeps track of
the Respondent’s power tools, and sends the tools out for
repair or repairs them himself on occasion. He also oc-
casionally drives a truck with supplies to a jobsite.
In April 1998 the Respondent hired Matthew Bielski
as a co-op student. He resigned in June. The Respon-
dent also hired Austin Wielenga, a student, to work dur-

5 According to the Respondent, employees in the “material expe-
diter” classification are responsible for transferring materials from the
Respondent’s shop to and between construction sites. The term appears
to be a loose synonym for “truckdriver.” In any event, we agree with
the General Counsel’s contention that the “material expediter” title
does not accurately describe an employee’s actual job functions.
Therefore, we refer to this classification only for identification pur-
poses.
6 MacPherson’s time reports show the Respondent changed his clas-
sification to “apprentice” at some point. The Respondent’s office clerk,
Teresa Hazzard, claimed the reports were incorrect. She conceded,
though, that she is not in a position to know why the reports show
MacPherson as an apprentice. Richard Mahoney, the Respondent’s
vice president and operations manager, testified that MacPherson did
not do sheet metal work, but failed to address either MacPherson’s
reclassification or why he billed 9 hours to the sheet metal shop on a
recent time report. Mahoney supervises MacPherson and approves his
time reports. In these circumstances, we infer that, had Mahoney testi-
fied about the reports, his testimony would have been adverse to the
Respondent. See USF Dugan, Inc., 332 NLRB No. 36, slip op. at 5
(2000); see also International Automated Machines, 285 NLRB 1122,
1123 (1987), enfd. 861 F.2d 720 (6th Cir. 1988) (unpublished table
decision). Consequently, we find that the Respondent treats MacPher-
son as an apprentice sheet metal worker and assigns him sheet metal
work.
ing the summer of 1998 as a general laborer. Wielenga
left the Respondent in August 1998 to return to school.
Although the Respondent classified Wielenga as a sheet
metal shop helper, he actually performed only general
cleanup duties in his limited time with the Respondent.
On November 30 the Respondent hired Benjamin Emery
as a material expediter at a wage rate of $8.25 per hour.
Emery spends most of his time driving a truck and also
does general labor work.
Finally, the Respondent hired Tammy Ickes on De-
cember 2, 1998, as a “Vicon machine operator,” also a
new classification, at an hourly wage of $10.25. There is
no evidence that Ickes had any prior experience operat-
ing a vicon machine or even performing sheet metal
work. Indeed, Ickes’s job application shows that her
experience was in providing customer service and per-
forming clerical duties.
III. THE JUDGE’S DECISION
The judge found that certain of the material expediter
positions that became available in 1998 were substan-
tially equivalent to O’Brien’s and Fogoros’ prestrike
positions. The judge reasoned that, by assigning O’Brien
and Fogoros truck driving duties in the past, the Respon-
dent unilaterally expanded their respective job classifica-
tions to include such activities. Thus, the judge con-
cluded that the Respondent violated Section 8(a)(3) and
(1) of the Act by failing to recall O’Brien to the material
expediter positions filled by MacPherson and Weese.
Similarly, the judge found that the Respondent unlaw-
fully failed to recall Fogoros to the positions occupied by
Bielski, Wielenga, and Emery. The judge also found that
Ickes’ vicon machine operator position was substantially
equivalent to O’Brien’s prestrike job. As a result, the
judge concluded that the Respondent further violated the
Act by failing to offer O’Brien reinstatement to this posi-
tion as well. The Respondent has excepted to these find-
ings.
The judge rejected the Respondent’s affirmative de-
fense that it had no duty to recall O’Brien and Fogoros in
1998 because, allegedly, they previously had obtained
“regular and substantially equivalent employment” else-
where within the meaning of Section 2(3) of the Act.7
The judge concluded that this defense is unavailable to
cut off the reinstatement rights of former unfair labor
practice strikers, as opposed to economic strikers. The
7 Sec. 2(3) of the Act provides, in pertinent part:
The term “employee” shall include any employee, and shall not be
limited to the employees of a particular employer . . . and shall in-
clude any individual whose work has ceased as a consequence of, or
in connection with, any current labor dispute or because of any un-
fair labor practice, and who has not obtained any other regular and
substantially equivalent employment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 588
Respondent has also excepted to this aspect of the
judge’s decision.
The judge alternatively found under Wright Line, 251
NLRB 1083, 1089 (1980), enfd. on other grounds 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), that the Respondent unlawfully failed to offer
O’Brien and Fogoros reinstatement in 1998 because of
their union activity. The Respondent has excepted to this
finding as well.
IV. ANALYSIS
It is settled that both economic strikers and unfair labor
practice strikers retain their status as “employees” under
Section 2(3) of the Act. See NLRB v. Mackay Radio &
Telegraph Co., 304 U.S. 333, 345 (1938). As a result, an
employer violates Section 8(a)(3) and (1) of the Act by
failing to immediately reinstate strikers upon their un-
conditional offer to return to work, unless the employer
establishes a legitimate and substantial business justifica-
tion for failing to do so. See NLRB v. Fleetwood Trailer
Co., 389 U.S. 375, 378 (1967); Mastro Plastics Corp. v.
NLRB, 350 U.S. 270, 278 (1956); Marchese Metal Indus-
tries, 313 NLRB 1022, 1032 (1994); Laidlaw Corp., 171
NLRB 1366, 1368 (1968), enfd. 414 F.2d 99 (7th Cir.
1969), cert. denied 397 U.S. 920 (1970).8
The Board has recognized that one legitimate and sub-
stantial justification for not immediately reinstating for-
mer strikers is a bona fide absence of available work for
the strikers in their prestrike or substantially equivalent
positions. See, e.g., Randall, Burkart/Randall, 257
NLRB 1, 6–7 (1981), enfd. in pertinent part 687 F.2d
1240 (8th Cir. 1982), cert. denied 461 U.S. 914 (1983)
(employer lawfully delayed reinstatement of strikers
where employer proved that prestrike inventory buildup
required by its customers temporarily eliminated need for
the strikers). However, a striker’s right to reinstatement
does not expire simply because no suitable work is avail-
able when he unconditionally offers to return to work.
His right to reinstatement continues until his position or a
substantially equivalent position becomes available. See
NLRB v. Fleetwood Trailer Co., 389 U.S. at 380–381;
Consolidated Dress Carriers, Inc., 259 NLRB 627, 635–
636 (1981), enfd. in part 693 F.2d 277 (2d Cir. 1982).9
A former striker awaiting reinstatement may accept in-
terim employment elsewhere. Indeed, the Board has
recognized that the right to seek interim employment is a
vital adjunct to the exercise of the right to strike and is
itself protected activity. See Christie Electric Corp., 284
NLRB 740, 759 (1987). Accepting interim employment
normally will have no effect on a former striker’s rein-
statement rights. One exception is that if a former striker
accepts other “regular and substantially equivalent em-
ployment,” within the meaning of Section 2(3), then he
forgoes his reinstatement rights with the employer. See
Marchese Metal Industries, 313 NLRB at 1028–1031;
Little Rock Airmotive, Inc., 182 NLRB 666, 667 (1970),
enfd. in pertinent part 455 F.2d 163 (8th Cir. 1972).

8 The absence of discriminatory intent or illegal motivation is not a
defense. See Fleetwood Trailer, 389 U.S. at 378.
9 An employer may, but is not required to, offer former strikers non-
equivalent positions the strikers may be qualified to perform. A
striker’s acceptance of such a position does not extinguish his statutory
right to subsequent reinstatement to a vacant prestrike position or a
substantially equivalent one. See Rose Printing Co., 304 NLRB at
1078.
Determining whether a former striker’s interim em-
ployment constitutes “regular and substantially equiva-
lent employment” cannot be answered by a “mechanistic
application of the literal language of the statute.” Little
Rock Airmotive, 182 NLRB at 666–667. Thus, while the
Board compares the terms and conditions of the striker’s
interim job to his prestrike job, the Board ultimately
gives controlling weight to whether the “striker intended
to abandon his employment with the employer by accept-
ing interim employment with another employer.”
Marchese Metal, 313 NLRB at 1030. See also Rose
Printing Co., 304 NLRB at 1076 fn. 3. Accord: Alaska
Pulp Corp., 326 NLRB 522, 524 (1998), enfd. in part
and remanded in part sub nom. Sever v. NLRB, 231 F.3d
1156 (9th Cir. 2000). The Board presumes that the
striker did not intend to forfeit his reinstatement rights;
the burden is on the employer to prove otherwise. See
Marchese Metal, 313 NLRB at fn. 1 and 1031.
Finally, contrary to the judge’s conclusion, this aban-
donment defense is applicable to unfair labor practice
strikers as well as economic strikers. See Marchese
Metal, supra (applying exception to unfair labor practice
strikers). See also Harowe Servo Controls, Inc., 250
NLRB 958, 963–964 (1980).10
We shall now apply the foregoing principles to former
unfair labor practice strikers O’Brien and Fogoros.
A. Tim O’Brien
We find, in agreement with the judge, that the material
expediter position filled by Bill MacPherson on February
16 was substantially equivalent to O’Brien’s prestrike
position. As described above, MacPherson spends most
of his time in the Respondent’s sheet metal shop, though
he occasionally drives a truck to deliver supplies to
jobsites. MacPherson performs sheet metal fabrication
work, coordinates deliveries to jobsites, keeps track of
10 This exception does not apply, however, to unlawfully discharged
strikers. See Marlene Industries Corp., 255 NLRB 1446, 1447 (1981),
enf. denied on other grounds 712 F.2d 1011 (6th Cir. 1983). See also
Alaska Pulp Corp., 326 NLRB at 533 (citing Phelps Dodge Corp. v.
NLRB, 313 U.S. 177, 193–194 (1941)).

ZIMMERMAN PLUMBING & HEATING CO. 589
the Respondent’s power tools, and sees to their repair.
MacPherson started at $12 per hour.
Prior to the strike, O’Brien spent 70–80 percent of his
time in the shop, fabricating sheet metal, regularly oper-
ating the vicon machine, coordinating the work of sev-
eral other employees, and working with the Respondent’s
tools. Moreover, O’Brien drove the Respondent’s truck
to deliver materials to a particular jobsite on four or five
occasions in 1995.11 He earned $11 per hour at the time.
On these facts, we find that the material expediter posi-
tion filled by MacPherson is substantially equivalent to
O’Brien’s prestrike position.12
It is true that the newly created position filled by
MacPherson was somewhat broader in scope than
O’Brien’s prestrike job. In addition to fabricating sheet
metal and occasionally making deliveries, MacPherson
coordinates deliveries, keeps track of tools, and sees that
the tools are repaired. However, in determining whether
positions are “substantially equivalent,” the Board takes
into account “changes which the Respondent ha[s] made
in its organization of the work,” and considers whether
the former striker would logically have been moved to
the position in question. Towne Ford, Inc., 327 NLRB
193, 194 (1998).
Here, following the strike, the Respondent curtailed its
use of apprentices in favor of using “material expediters”
to perform a combination of sheet metal work and other
tasks to enhance the productivity of the remaining skilled
employees.13 Given O’Brien’s work in the shop, which
included coordinating other employees’ work and work-
ing with the Respondent’s tools, we find that the Re-
spondent logically would have moved O’Brien to the
material expediter position filled by MacPherson.
We further find, in agreement with the judge, that
Tammy Ickes’ vicon machine operator position in the
sheet metal shop was substantially equivalent to
O’Brien’s prestrike position. As discussed above,
O’Brien too spent most of his working time in the sheet
metal shop, where he regularly operated the same vicon
machine, at a comparable wage rate. Therefore, we
agree with the judge that the vicon operator position as-

11 Given that MacPherson only occasionally drives a truck, we find
it unnecessary to rely on the judge’s finding that the Respondent “regu-
larly” assigned O’Brien truckdriving duties.
12 Contrary to the judge, we do not find that the material expediter
position filled by Ed Weese on January 20 was substantially equivalent
to O’Brien’s prestrike job. The limited record evidence concerning
Weese indicates that he spent the vast majority of his time outside the
shop making deliveries. The General Counsel has not excepted to the
judge’s failure to make a finding as to whether the material expediter
positions filled by Austin Wielenga and Benjamin Emery were substan-
tially equivalent to O’Brien’s prestrike position.
13 There is no complaint allegation that this change was unlawful.
signed to Ickes was substantially equivalent to O’Brien’s
prestrike apprentice position.14
Although MacPherson’s material expediter position
and Ickes’ vicon machine operator position were sub-
stantially equivalent to O’Brien’s prestrike position, this
does not end our inquiry. The Respondent contends that
O’Brien accepted “regular and substantially equivalent”
employment as a journeyman sheet metal worker with
W. Soule in February 1997, thereby relieving the Re-
spondent of its duty to offer him reinstatement. As indi-
cated above, the judge erroneously concluded that this
line of defense was unavailable to the Respondent be-
cause O’Brien was an unfair labor practice striker. As a
result, the judge precluded the Respondent from cross-
examining O’Brien about his new position and his affin-
ity for the work. This line of questioning might have led
to evidence relevant to whether O’Brien unequivocally
intended to sever his employment relationship with the
Respondent when he accepted employment with W.
Soule. Consequently, it is necessary to remand this as-
pect of the case to the judge for the purposes of reopen-
ing the record and making a finding on this question.
B. Fogoros
Unlike the judge, we find that the positions filled by
Bielski, Wielenga, and Emery in 1998 were not substan-
tially equivalent to Fogoros’ prestrike job as a journey-
man sheet metal worker. Fogoros worked primarily in
the field. He did some installation work himself, and
oversaw other workers as they installed HVAC equip-
ment. There is no evidence that Bielski, Wielenga, or
Emery had similar responsibilities. Moreover, as a jour-
neyman, Fogoros’ hourly wage was significantly higher
than that earned by Bielski as a co-op student, Wielenga
as a summer laborer, or Emery as a truckdriver.15 We
find that the Respondent was not required to offer
Fogoros any of these positions. See Rose Printing Co.,
304 NLRB at 1078. Therefore, the complaint is dis-
missed insofar as it alleges that the Respondent unlaw-
fully failed to recall Fogoros to substantially equivalent
positions that became available in 1998.
14 The new Vicon machine operator position did not mirror
O’Brien’s prestrike job. We find, however, that the Respondent logi-
cally would have assigned O’Brien to this position, assuming he had
not previously been reinstated to a material expediter position. See
Towne Ford, Inc., 327 NLRB at 194.
15 The judge found that the Respondent “regularly” assigned
Fogoros truck driving duties. However, while Fogoros testified that he
must have driven a truck at some point during his 10 years with the
Respondent, he could not recall any recent or specific examples. In any
event, Fogoros admitted it “wasn’t very often.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 590
C. The Wright Line Analysis
The judge properly recognized that, even if the Re-
spondent was not required to offer O’Brien or Fogoros
any of the jobs that became available in 1998,16 the Re-
spondent was not privileged to exclude them from con-
sideration for these positions because of their union af-
filiation. See Medite of New Mexico, Inc., 314 NLRB
1145, 1148 (1994), supplemented by 316 NLRB 629
(1995), enfd. 72 F.3d 780 (10th Cir. 1995). As indicated
above, the judge, citing Wright Line, supra, found that
the Respondent unlawfully failed to offer these positions
to O’Brien and Fogoros because of their support for the
Charging Party.17 The judge, however, did not consider
whether O’Brien or Fogoros had previously abandoned
any interest in working for the Respondent and, if so,
whether the Respondent was aware of the abandonment
when it did not recall them in 1998. We find that these
issues are relevant to the Wright Line analysis.18 We
therefore find that it is also necessary to remand this part
of the case to the judge to resolve these questions and to
set forth a more complete Wright Line analysis in light of
his additional findings.
ORDER
It is ordered that this proceeding is remanded to Ad-
ministrative Law Judge Bruce D. Rosenstein for appro-
priate action consistent with this Decision and Order.
IT IS FURTHER ORDERED that the administrative
law judge shall prepare a supplemental decision setting
forth credibility resolutions, findings of fact, conclusions
of law, and a recommended order, as appropriate, on
remand. Copies of the supplemental decision shall be
served on all parties, after which the provisions of Sec-
tion 102.46 of the Board’s Rules and Regulations shall
be applicable.

Amy J. Roemer, Esq., for the General Counsel.
Timothy J. Ryan, Esq. and Elizabeth Welch Lykins, Esq., of
Grand Rapids, Michigan, for the Respondent-Employer.
Tinamarie Pappas, Esq., of Ann Arbor, Michigan, for the
Charging Party.

16 See fn. 9, supra.
17 The Respondent admitted that O’Brien was qualified to operate
the Vicon machine and that both O’Brien and Fogoros could have
performed truckdriving duties.
18 Under Wright Line, the General Counsel has the burden to per-
suade that antiunion sentiment was a substantial or motivating factor in
the challenged employer decision. The burden of persuasion then shifts
to the employer to prove its affirmative defense that it would have
taken the same action even if the employees had not engaged in pro-
tected activity. Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This
case was tried before me on February 9 and 10, 1999, in Grand
Rapids, Michigan, pursuant to a complaint and notice of
hearing (the complaint) issued by the Regional Director for
Region 7 of the National Labor Relations Board (the Board) on
November 30, 1998.1 The complaint, based on an original
charge filed on September 25 by Plumbers and Pipefitters Local
357, United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, AFL–CIO (the Charging Party or Union) alleges that
Zimmerman Plumbing and Heating Co., Inc. (the Respondent
or Employer) has engaged in certain violations of Section
8(a)(1) and (3) of the National Labor Relations Act (the Act).
The Respondent filed a timely answer to the complaint denying
that it had committed any violations of the Act.
Issues
The complaint alleges that the Respondent refused to rein-
state two employees to their former positions of employment
because they engaged in an unfair labor practice strike and
engaged in a number of independent violations of Section
8(a)(1) of the Act by interrogating employees about their union
activities. Additionally, the complaint alleges that the Respon-
dent rescinded an offer of employment to an employee because
of his union activities.
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 the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is engaged in the fabrication and installation
of sheet metal, piping, and related materials at various construc-
tion sites in Michigan. It annually purchases and receives
goods and materials valued in excess of $50,000 directly from
points outside Michigan. It admits that at all times material it
has been an employer engaged in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. It also admits that the Charging Party Union and Local 7,
Sheet Metal Workers’ International Association AFL–CIO
(Local 7) are labor organizations within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent was formed in 1976 by Dan Zimmerman
and Richard Mahoney and began business as a contractor per-
forming commercial and residential plumbing and heating work
and later added the sheet metal business. In 1978 the Employer
was reorganized and Bruce Link joined the business as a part
owner. The Respondent performs construction work at various
locations throughout Michigan and employs about 40 workers.
1 All dates are in 1998 unless otherwise indicated.

ZIMMERMAN PLUMBING & HEATING CO. 591
In April 1995 the Charging Party and Local 7 decided to
combine their efforts to organize the Respondent. They formed
a joint organizing committee of Respondent’s employees and
on May 5, 1995, the Charging Party faxed a letter to the Re-
spondent naming Jeff Yeary, Todd O’Brien, and Andy Lytle as
employees who were on the organizing committee. On May
15, 1995, Local 7 faxed Respondent a letter naming James
Fogoros, Joseph Houseman, Tim O’Brien, and Steven Stone as
the sheet metal employees on the committee. Thereafter these
seven employees began to openly demonstrate their support for
the organizing effort by wearing union stickers on their hard-
hats and by picketing jobsites during their breaks and lunch.
They also engaged in two strikes to protest the Respondent’s
unfair labor practices. The first strike commenced on June 28,
1995, and ended when the employees made an unconditional
offer to return to work on July 28, 1995. The second unfair
labor practice strike commenced on August 22, 1995,2 to pro-
test Steve Stone’s termination and ended on September 6,
1995,3 when the employees made an unconditional offer to
return to work. The Board addressed a number of issues in-
cluding the unfair labor practice strikes, three discharges, and
numerous incidents of Section 8(a)(1) conduct in its November
8, 1997 decision, found at 325 NLRB 106. The Respondent
filed an appeal of that decision and it is presently pending in the
United States Court of Appeals for the Sixth Circuit.
The Board’s decision is specifically relevant to the subject
case as it found both strikes to be unfair labor practice strikes,4
and two of the employees named in the complaint were found
to have been the subject of unfair labor practices visited on
them by the Respondent. In this regard, Respondent was or-
dered to rescind the no solicitation, no sticker-rule on hardhats
and to rescind the attendance related disciplinary warning let-
ters to Fogoros and O’Brien. It was also ordered to reinstate
O’Brien to the apprenticeship program with no loss of credit
and to remove any reference to his September 1995 removal
from the program.
B. The 8(a)(1) and (3) Violations
1. Allegations concerning James Fogoros
The General Counsel alleges in paragraph 9 of the complaint
that since about January 20, Respondent has failed to reinstate
Fogoros to his former position of employment.

2 The strike notice stated in pertinent part: Please be advised be-
cause of Zimmerman’s continuous unfair labor practices, the following
employees, Timothy O’Brien, Andy Lytle, Jeff Yeary, James Fogoros,
Joe Houseman, and Steve Stone, as of 6 a.m. August 22, 1995, are on
strike (GC Exh. 5).
3 The unconditional offer to return to work stated in pertinent part:
Please be advised that the following employees have ended their strike
and are making a unconditional offer to return to work, Tim O’Brien,
Todd O’Brien, Andy Lytle, Jeff Yeary, James Fogoros, Joe Houseman,
and Steve Stone. The date of return to work will be Wednesday, Sep-
tember 6, 1995 (GC Exh. 6).
4 I also note that the Respondent admitted par. 8 of the complaint
which as amended now states: About September 6, 1995, by letter, the
employees named above in par. 7(b) who had engaged in the unfair
labor practice strike described above in pars. 7 (b) and (c), made an
unconditional offer to return to their former positions of employment.
Fogoros commenced employment with Respondent in June
1986, and had approximately 9 years of experience before he
made an unconditional offer to return to work on September 6,
1995. During his tenure at Respondent, Fogoros achieved jour-
neyman sheet metal status and for a period of time was pro-
moted to the position of job foreman. He also drove the Re-
spondent’s truck on occasions and made deliveries of sheet
metal materials to the Respondent's jobsites. By letter dated
September 6, 1995, Respondent acknowledged Fogoros offer to
return to work but noted that because there was no work cur-
rently available, he was placed on a preferential hiring list and
would be called when work became available in his classifica-
tion (GC Exh. 8). Between September 6, 1995, and May 1997,
Fogoros worked sporadically on a number of construction jobs
before becoming permanently employed in June 1997, at Di-
versified Mechanical as a journeyman sheet metal worker.
The record confirms and Respondent admits that since Janu-
ary 20 it hired seven employees.5 In this regard, Ed Weese was
hired on January 20 as a truckdriver, Bill MacPherson was
hired on February 16 as a truckdriver but is now classified as a
material expediter,6 Matthew Bielski was hired as a co-op stu-
dent in April 1998, Austin Wielenga was hired as a summer
student cleanup worker on June 1, Russel Keller was hired on
June 13 as a pipefitter, Benjamin Emery was hired on Novem-
ber 30 as a truckdriver, and Tammy Ickes was hired as a vicon
machine operator on December 2. MacPherson, Keller, Emery,
and Ickes are still employees of Respondent while Weese, Biel-
ski, and Wielenga resigned in February, June, and August 1998,
respectively.
As it concerns Fogoros, the Respondent stipulated that he
was qualified to perform the duties of a truckdriver but that he
was not hired on January 20 or February 16, because he had
acquired regular and substantially equivalent employment
elsewhere that pays significantly more than what he was earn-
ing. Additionally, Respondent opines that it had no obligation
to reinstate Fogoros because it did not hire any employees dur-
ing the relevant time period in the sheet metal classification.
The Respondent asserts that the Board’s decision in Laidlaw
Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir.
1969), cert. denied 397 U.S. 920 (1970), supports such a de-
fense. While I would tend to agree with Respondent’s position,
if Fogoros was an economic striker,7 the Board specifically
5 All of the seven employees were hired at Respondent despite a
January 1998 sign on the door, which is still posted, that said no appli-
cations are being taken.
6 All truckdrivers are entered into the Respondent’s computer pay-
roll system as material expediters. Employees, other than truckdrivers,
are classified in Respondent’s job class listings as either pipefitters or
sheet metal workers (GC Exh. 11–12). Sheet metal workers are further
broken down into positions of shop helper, apprentice, and journeyman.
The vicon operator is also carried in a sheet metal job class listing.
7 The Laidlaw Board held that economic strikers who uncondition-
ally apply for reinstatement at a time when their positions are filled by
permanent replacements: (1) remain employees; and (2) are entitled to
full reinstatement upon the departure of replacements unless they have
in the meantime acquired regular and substantially equivalent employ-
ment, or the employer can sustain his burden of proof that the failure to
offer full reinstatement was for legitimate and substantial business
reasons.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 592
found and I independently find that Fogoros at all times since
August 22, 1995, was an unfair labor practice striker.8 As an
unfair labor practice striker, Fogoros was entitled to immediate
reinstatement at the conclusion of the strike, even if the em-
ployer must discharge so-called permanent replacements,
unless it establishes a legitimate and substantial business justi-
fication for refusing to do so. NLRB v. Mackay Radio & Tele-
graph Co., 304 U.S. 333 (1938); Hotel Roanoke, 293 NLRB
182, 185 (1989).
The burden of proving legitimate and substantial business
justification falls on the employer. Moreover, the right to rein-
statement does not expire when an unconditional offer is made,
although a job may have been eliminated or been unavailable
for a legitimate bona fide reason. The right to reinstatement
continues when the job becomes available. Consolidated Dress
Carriers, 259 NLRB 627, 636 (1981), enfd. in pertinent part
693 F.2d 277 (2d Cir. 1982).
The touchstone for determining reinstatement rights is ascer-
taining whether the job is the same as, or substantially, equiva-
lent to the prestrike job. While the issue of whether a striker is
qualified to perform the job may shed light on whether the job
is substantially equivalent to the prestrike job, mere qualifica-
tion to perform the job will not suffice to establish substantial
equivalency. Rose Printing Co., 304 NLRB 1076, 1077 (1991).
In applying these principles to the instant case, since I have
concluded that Fogoros is and continues to be an unfair labor
practice striker, the issue becomes whether Respondent has met
its burden of establishing legitimate and substantial business
justification for its refusal to reinstate him.
Although the Respondent admits that Fogoros previously
performed and is capable of performing truckdriver duties, it
defends its refusal to reinstate him on the basis that it did not
hire any employees during the relevant time period in the sheet
metal classification. I find, however, that prior to the strike a
portion of the work performed by Fogoros involved truckdriver
duties. Thus, since Respondent regularly assigned such work to
Fogoros before the strike, it has in effect unilaterally expanded
the job classification of his sheet metal position to include
truckdriver duties. Therefore, when the Respondent hired
Weese and McPherson as truckdrivers, it had an obligation to
offer those positions to Fogoros.
Accordingly, for the above reasons, I conclude that Respon-
dent has not met its burden of establishing a legitimate and
substantial business justification for failing to reinstate
Fogoros. I further conclude, based on the Board’s finding that
Respondent committed unfair labor practices against Fogoros,
that he was also not hired because of his support for the Union.9
In this regard, I note that the Respondent hired seven employ-
ees not affiliated with the Union after January 20, despite the
fact that a sign was posted that the Respondent was not taking
employment applications.

8 I credit the testimony of Fogoros that on August 22, 1995, he went
on strike to protest the discharge of coworker Steve Stone that the
Board ultimately found to be a violation of the Act. The picket sign
stated, “Zimmerman commits ULP and in violation of federal law.”
9 In Wright Line, 251 NLRB 1083 (1990), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board announced a
causation test in all cases alleging violations of Sec. 8(a)(3) or viola-
tions of Sec. 8(a)(1) turning on employer motivation. I find that the
Respondent would have reinstated Fogoros on September 6, 1995, but
for his support for the Union.
For all of the above reasons, I find that Respondent has en-
gaged in violations of Section 8(a)(1) and (3) of the Act when it
refused to reinstate Fogoros to a truckdriver position in January
or February of 1998. I also find that Fogoros was qualified to
perform the duties of the positions Bielski and Wielenga were
hired for that are classified as sheet metal positions in Respon-
dent’s job class listings, and the truckdriver position that Emery
was hired for in December 1998.
2. Allegations concerning Tim O’Brien
The General Counsel alleges in paragraph 9 of the complaint
that since about January 20, Respondent has failed to reinstate
O’Brien to his former position of employment.
O’Brien commenced employment with Respondent in Au-
gust 1991 as a sheet metal helper, became a sheet metal appren-
tice in April 1992 and ultimately was promoted to the position
of job foreman after receiving a favorable performance ap-
praisal.
While employed at Respondent, he operated the vicon ma-
chine and also occasionally drove a truck when making deliver-
ies of sheet metal materials to various jobsites. By letter dated
September 6, 1995, Respondent acknowledged O’Brien’s offer
to return to work but noted that because there was no work
currently available, he was placed on a preferential hiring list
and would be called when work became available in his classi-
fication (GC Exh. 7). By letter dated September 27, 1995, Re-
spondent changed O’Brien’s status from apprentice to helper
(GC Exh. 16). Between September 6, 1995, and January 1997,
O’Brien worked sporadically on a number of construction jobs
before becoming permanently employed in February 1997 as a
sheet metal worker at W. Soule.
As it concerns O’Brien, the Respondent stipulated that he
was qualified to perform the duties of a truckdriver and vicon
machine operator but that he was not hired on January 20, Feb-
ruary 16, or December 2, because he had acquired regular and
substantially equivalent employment elsewhere that pays sig-
nificantly more than what he was earning. Additionally, Re-
spondent opines that it had no obligation to reinstate O’Brien
because it did not hire any employees during the relevant time
period in the sheet metal classification. The Respondent asserts
that the Board’s decision in Laidlaw Corp., 171 NLRB 1366
(1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S.
920 (1970), supports such a defense. While I would tend to
agree with Respondent’s position, if O’Brien was an economic
striker, the Board specifically found and I independently find
that O’Brien at all times since August 22, 1995, was an unfair
labor practice striker.10 As an unfair labor practice striker,
O’Brien was entitled to immediate reinstatement at the conclu-
sion of the strike, even if the employer must discharge so-called
permanent replacements, unless it establishes a legitimate and
10 I credit the testimony of O’Brien that on August 22, 1995, he
went on strike to protest the discharge of coworker Steve Stone that the
Board ultimately found to be a violation of the Act. The picket sign
stated, “Zimmerman commits ULP and in violation of federal law.”

ZIMMERMAN PLUMBING & HEATING CO. 593
substantial business justification for refusing to do so. NLRB v.
Mackay Radio & Telegraph Co., supra; Hotel Roanoke, supra.
The burden of proving legitimate and substantial business
justification falls on the employer. Moreover, the right to rein-
statement does not expire when an unconditional offer is made,
although a job may have been eliminated or been unavailable
for a legitimate bona fide reason. The right to reinstatement
continues when the job becomes available. Consolidated Dress
Carriers, 259 NLRB 627, 636 (1981), enfd. in pertinent part
693 F.2d 277 (2d Cir. 1982).
The touchstone for determining reinstatement rights is ascer-
taining whether the job is the same as, or substantially, equiva-
lent to the prestrike job. While the issue of whether a striker is
qualified to perform the job may shed light on whether the job
is substantially equivalent to the prestrike job, mere qualifica-
tion to perform the job will not suffice to establish substantial
equivalency. Rose Printing Co., 304 NLRB 1076, 1077 (1991).
In applying these principles to the instant case, since I have
concluded that O’Brien is and continues to be an unfair labor
practice striker, the issue becomes whether Respondent has met
its burden of establishing legitimate and substantial business
justification for its refusal to reinstate him.
Although the Respondent admits that O’Brien previously
performed and is capable of performing truckdriver and vicon
machine operator duties, it defends its refusal to reinstate him
on the basis that it did not hire any employees during the rele-
vant time period in the sheet metal classification. I find, how-
ever, that prior to the strike a portion of the work performed by
O’Brien involved truckdriver and vicon machine duties. Thus,
since Respondent regularly assigned such work to O’Brien
before the strike, it has in effect unilaterally expanded the job
classification of his sheet metal position to include truckdriver
and vicon machine operator duties. Therefore, when the Re-
spondent hired Weese and McPherson as truckdrivers and Ickes
as a vicon machine operator, it had an obligation to offer those
positions to O’Brien.
Accordingly, for the above reasons, I conclude that Respon-
dent has not met its burden of establishing a legitimate and
substantial business justification for failing to reinstate
O’Brien. I further conclude, based on the Board’s finding that
Respondent committed unfair labor practices against O’Brien,
that he was also not hired because of his support for the Un-
ion.11 In this regard, I note that the Respondent hired seven
employees not affiliated with the Union after January 20, de-
spite the fact that a sign was posted that the Respondent was
not taking employment applications.
For all of the above reasons, I find that Respondent has en-
gaged in violations of Section 8(a)(1) and (3) of the Act when it
refused to reinstate O’Brien to a truckdriver position in January
or February of 1998 and the vicon machine operator position in
December 1998. I also find that O’Brien was qualified to per-

11 In Wright Line, 251 NLRB 1083 (1990), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board announced a
causation test in all cases alleging violations of Sec. 8(a)(3) or viola-
tions of Sec. 8(a)(1) turning on employer motivation. I find that the
Respondent would have reinstated O’Brien on September 6, 1995, but
for his support for the Union.
form the duties of the positions Bielski and Wielenga were
hired for that are classified as sheet metal positions in Respon-
dent’s job class listings,12 and the truckdriver position that Em-
ery was hired for in December 1998.13
3. Allegations concerning Richard Grosser
The General Counsel alleges in paragraph 10 of the com-
plaint that about June 4, Respondent’s secretary/treasurer,
Bruce Link, stated to Grosser that the Employer has a policy
against hiring union employees and interrogated him concern-
ing his union membership, sympathies, and activities. Also, it
is alleged that about June 15 Respondent’s vice president,
Richard Mahoney, interrogated Grosser concerning his union
membership, sympathies, and activities. Additionally, in para-
graph 11 of the complaint, the General Counsel alleges that
about June 15 Mahoney rescinded an offer of employment to
Grosser because he joined and assisted Local 7.
Grosser testified that because he heard that work was avail-
able, he applied for a sheet metal position at Respondent on
June 2. Additionally, Grosser sought work because he was
unable to pass the sheet metal apprenticeship examination at his
previous employer (W. Soule) and he was scheduled for layoff
on August 14. Grosser asserted that he went to Respondent’s
facility on June 2, obtained an application from Teresa Hazzard
(secretary) and filled it out in the foyer area. He was able to
briefly speak with Mahoney who took his resume and told
Grosser to return on June 4. Grosser returned to Respondent’s
facility on June 4, and met with Link in Mahoney’s absence.
According to Grosser, Link looked over the application and
resume and “asked several questions about why Grosser was
leaving W. Soule.” Additionally, Grosser testified that Link,
“asked him why he no longer wanted to be a member of the
union, and said that Respondent had a policy of not having
union employees, and that the Employer did not like Local 7 in
general.” Link told Grosser that his qualifications were good
and he would check with Mahoney about the possibility of a
job. Link requested that Grosser return to Respondent’s facility
on June 8.
Grosser returned to the facility on June 8, and testified that
he met with Mahoney in his office that was located across the
hall from Link’s. According to Grosser, “Mahoney asked him
why he was leaving the Union” and Grosser replied, “that he
was sick of the Union and he did not pass the apprenticeship
examination.” Mahoney then asked Grosser, “whether he has
done any organizing for Local 7,” and Grosser replied, “no.”
After their conversation, Grosser testified that Mahoney offered
him a position with the Respondent and Grosser asked to start
on June 22, as he needed to give 2 weeks notice to W. Soule.
Mahoney told Grosser that “he could fill out the necessary pa-
perwork on June 22, when he started work.”
On June 13, while at the Point gasoline station, Grosser testi-
fied that he met an individual by the name of Keller who was
driving one of Respondent’s red trucks. Grosser introduced
12 By letter dated September 27, 1995, the Respondent changed
O’Brien’s status to that of a sheet metal helper (GC Exh. 16).
13 In light of my finding regarding Fogoros and O’Brien, it is not
necessary to reconsider my ruling involving the subpoenaed documents
as requested by the General Counsel at the hearing and in brief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 594
himself and informed Keller that he would be starting shortly as
an employee. Keller told Grosser that he recently started work
at Respondent as an apprentice pipefitter and he liked it so far.
On June 15 Grosser testified that he called Mahoney to con-
firm that he would be starting work in a week but spoke with
Hazzard in his absence. According to Grosser, Mahoney re-
turned his telephone call on June 15, and left a message on his
voice mail that he would not be hired. Grosser asserted that he
tried to reach Mahoney to discuss the message but was referred
by Hazzard to Mahoney’s voice mail and he left a message.
Grosser never received a return telephone call from Mahoney
and he did not start work on June 22.
Mahoney testified that his office is in another building and is
not across from Link’s office or around the corner from Haz-
zard’s desk, and he only has one desk in his office (R. Exh. 2).
Additionally, he was certain that he never met Grosser before
the subject trial and unquestionably did not have any meetings
with him. He did recall talking to Grosser on the telephone
sometime in June 1998. In this regard, Link had left him a
message that Grosser would be calling him and he took
Grosser’s call after Hazzard put it through. The telephone call
lasted about 2 minutes and Grosser was told that no work was
available. Mahoney was positive that he never received any
messages from Grosser on his voice mail, as the Employer does
not have such a system at its facility. Mahoney also testified
that the Respondent has one red truck that has been retired to a
jobsite for approximately 1 year since it is not road worthy.
Link also testified that he never had a meeting with Grosser
and first saw him at the trial. He does remember having a tele-
phone call with Grosser during the summer of 1998, where
Grosser told him he had just completed a 4-year apprenticeship
program in pipefitting but he now wanted to get into sheet
metal work. Link thought Grosser was a kook for wanting to
spend additional time in a different apprenticeship program.
Link also testified that while his office is adjacent to the recep-
tionist area, he only has one desk in his office that faces the
wall and the Respondent does not have a voice mail system.
Hazzard, who I found to be sincere, forthright, and a very
credible witness, is responsible for the majority of clerical tasks
at Respondent and takes 99.9 percent of the telephone calls
made to the office. Hazzard’s desk is located in the reception
area and she is in a position to meet all visitors coming into the
office. She testified that she never met Grosser before the trial
and never gave him an employment application that he filled
out in the office. Likewise, as asserted by Mahoney and Link,
Hazzard confirmed that the Respondent does not have a voice
mail system.
Keller testified that he was hired at Respondent on June 13,
as a pipefitter. He asserted that he has never been to the Point
gasoline station and while he has driven Respondent’s red truck
on one occasion, it was on the jobsite. He further testified that
he never met Richard Grosser.
Based on the above testimony, I find that Grosser’s credibil-
ity is highly suspect and his testimony is cast in doubt. Haz-
zard, credibly testified, as did Mahoney and Link, that they
never met Grosser before the trial. This is directly contrary to
Grosser’s testimony that he personally met all three individuals
at Respondent’s facility in June 1998. Likewise, Hazzard testi-
fied, as did Mahoney and Link, that the Respondent has never
had a voice mail system. Grosser testified that he specifically
left a message on Respondent’s voice mail system for Ma-
honey. Additionally, both Mahoney and Link contradicted
Grosser’s testimony about their respective office locations and
descriptions of their office furniture and layout. Respondent’s
pictures refute Grosser’s testimony to this effect (R. Exhs. 2–3).
Grosser also testified that he met an individual named Keller at
the Point gasoline station on June 13. Keller, whose first name
is Russel, directly contradicted Grosser’s testimony regarding
their alleged meeting. Additionally, both Keller and Mahoney
credibly testified that Respondent’s red truck is not road worthy
and could not have been driven off the jobsite in June 1998. I
am also suspect of Grosser’s testimony concerning the alleged
interrogation of his union activities by Mahoney and Link.
While both of these individuals testified that they never met
Grosser before the trial, it is virtually inconceivable to me that
they would engage in interrogation and make violative state-
ments after having previously been immersed in the Board’s
processes and found to have violated the Act for making similar
statements. Lastly, I note that Grosser was laid off from W.
Soule on August 14, because he couldn’t pass the apprentice-
ship exam. Conveniently, Knapp from the Pipefitters Union
offered to get him a job if he could “help out the Union.” After
the subject charge was filed and Grosser gave an affidavit to the
Board, he obtained a job as a pipefitter with the Union’s assis-
tance.
Based on the forgoing, I reject Grosser’s testimony that Ma-
honey and Link interrogated him as alleged in paragraph 10 of
the complaint. Likewise, I find that Grosser was refused em-
ployment by Respondent for legitimate business reasons, and
note as discussed above, that there were no independent
apprentice sheet metal or pipefitting positions available in June
1998. See Delta Mechanical, Inc., 323 NLRB 76, 81 (1997)
(no showing made of job openings on date applicants appeared
at office or that employer expected to have openings in the
future); Falcone Electric Corp., 308 NLRB 1042, 1043 (1992)
(lawful refusal to hire where employer had no job openings).
Accordingly, I find that the Respondent did not violate Sec-
tion 8(a)(1) and (3) of the Act with respect to any allegations
involving Richard Grosser.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union and Local 7 are labor organizations within the
meaning of Section 2(5) of the Act.
3. By failing and refusing to immediately reinstate unfair la-
bor practice strikers James Fogoros and Tim O’Brien to their
former or substantially equivalent positions on their uncondi-
tional offer to return to work, Respondent violated Section
8(a)(1) and (3) of the Act.
4. Respondent did not violate Section 8(a)(1) and (3) of the
Act with respect to any allegations involving Richard Grosser.
This includes coercive interrogation and rescinding an offer of
employment.

ZIMMERMAN PLUMBING & HEATING CO. 595
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. Since the Respondent unlawfully
failed and refused to reinstate unfair labor practice strikers
James Fogoros and Tim O’Brien on their unconditional offer to
return to work, I shall recommend that the Respondent be re-
quired to reinstate them immediately to their former positions
or, if those positions no longer exist to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed, dismissing if necessary any
persons hired after January 19, 1998, and make the strikers
whole for any loss of earnings and other benefits suffered as a
result of the Respondent’s refusal to reinstate them from the
date of their offer to return to work. Backpay is to be computed
in the manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest to be computed in accordance with
New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended14
ORDER
The Respondent, Zimmerman Plumbing and Heating Co.,
Inc. Kalamazoo, Michigan, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to immediately reinstate unfair labor
practice strikers James Fogoros and Tim O’Brien to their for-
mer or substantially equivalent positions on their unconditional
offer to return to work.
(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.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Offer unfair labor practice strikers James Fogoros and
Tim O’Brien immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make the strikers whole
for any loss of earnings and other benefits suffered as a result
of the Respondent’s refusal to immediately reinstate them on
their unconditional offer to return to work, with backpay and
interest thereon to be computed in the manner set forth in the
remedy section of this decision.
(b) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.

14 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
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(c) Within 14 days after service by the Region, post at its fa-
cility in Kalamazoo, Michigan, copies of the attached notice
marked “Appendix.”15 Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed by the
Respondent's authorized representative, shall be posted by the
Respondent immediately on receipt and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since January 20, 1998.
(d) Within 21 days after service by the Region, file with the
Regional Director sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
(e) IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not specifically
found.
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 the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT discriminate against unfair labor practice
strikers by failing and refusing to immediately reinstate them to
their former or substantially equivalent positions on their un-
conditional offer to return to work.
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 offer unfair labor practice strikers James Fogoros
and Tim O’Brien immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed and WE WILL
make them whole for any loss of earnings and other benefits
suffered as a result of our failure to immediately reinstate them
on their unconditional offer to return to work, with backpay and
interest.
ZIMMERMAN PLUMBING & HEATING CO.,
INC.
15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the 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.”