Zimmerman Plumbing & Heating Co.

National Labor Relations Board - Board Decisions

Aug 25, 2003

339 N.L.R.B. 1302 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1302
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
August 25, 2003
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
On January 29, 2002, Administrative Law Judge Bruce
D. Rosenstein issued the attached supplemental decision
and order, supplemented by an erratum dated January 31,
2002.1 The Respondent, the General Counsel, and the
Charging Party each have filed exceptions to the supple-
mental decision, an accompanying supporting brief, and
an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings,2 and
conclusions.3
I. INTRODUCTION
This case arises from the Respondent’s alleged unlaw-
ful failure to recall two former unfair labor practice strik-
ers, Tim O’Brien and James Fogoros. There is no con-
tention that the Respondent unlawfully failed to recall
O’Brien or Fogoros to their prestrike or substantially
equivalent positions at the time the strike ended in Sep-
tember 1995. Instead, our focus is on whether the Re-
spondent subsequently violated the Act by (1) failing to
recall O’Brien to substantially equivalent positions that
became available in 1998 and (2) refusing to consider
O’Brien and Fogoros for other nonequivalent positions in
1998 because of their union activity.

1 The Board’s original Decision and Order in this case issued on July
18, 2001. 334 NLRB 586.
2 The Respondent and the General Counsel effectively have excepted
to some of the judge’s credibility findings. The Board’s established
policy is not to overrule an administrative law judge’s credibility reso-
lutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
3 We shall substitute a new Order, as well as a new notice in accor-
dance with our decision in Ishikawa Gasket America, Inc., 337 NLRB
175 (2001).
II. RELEVANT FACTS AND PROCEDURAL HISTORY
A. Relevant Facts
On August 22, 1995, certain of the Respondent’s em-
ployees commenced an unfair labor practice strike
against the Respondent. Among the strikers were
O’Brien, an apprentice sheet metal worker, and Fogoros,
a journeyman sheet metal worker. The strike ended on
September 6, 1995, when the Union, on behalf of the
strikers, made an unconditional offer to return to work.
The Respondent informed O’Brien and Fogoros that it
had no available work for them, but that it would place
them on a preferential hiring list and recall them when
work was available in their respective job classifications.
Some time after the end of the strike, but before the
end of calendar year 1995, O’Brien contacted the Re-
spondent “about the availability of work, and when [he]
could start working for [the Respondent] again.”
Fogoros too contacted the Respondent shortly after the
conclusion of the strike and asked about employment.
The Respondent, however, still did not have any work
available for either O’Brien or Fogoros. Fogoros never
again contacted the Respondent about available posi-
tions. O’Brien made several additional inquiries of the
Respondent, but these efforts proved unsuccessful. In
January 1997, O’Brien again contacted the Respondent
about available work, at which time the Respondent as-
sured O’Brien that it would contact him when things
picked up.
In the meantime, O’Brien and Fogoros each accepted
interim employment. In February 1997, O’Brien, having
completed his apprenticeship, began working as a jour-
neyman sheet metal worker for W. Soule, Inc. In June
1997, Fogoros began working as a journeyman sheet
metal worker for Diversified Mechanical, Inc.
By the close of the supplemental hearing on October
29, 2001, the Respondent had not recalled either O’Brien
or Fogoros. The Respondent maintains that it has had no
openings for apprentice or journeymen sheet metal
workers since September 1995. The record shows, how-
ever, that the Respondent hired new employees after
September 1995.
On January 20, 1998, the Respondent hired Ed Weese
as a “material expediter,” performing primarily truck-
driving duties. On February 16, 1998, the Respondent
hired Bill MacPherson as a “material expediter,” per-
forming sheet metal work and related tasks in the Re-
spondent’s shop. In April 1998, the Respondent hired
Matthew Bielski as a co-op student. The Respondent
also hired Austin Wielenga to work during the summer
of 1998 as a general laborer. On November 30, 1998, the
Respondent hired Benjamin Emery as a truckdriver and
339 NLRB No. 138
ZIMMERMAN PLUMBING & HEATING CO. 1303
general laborer. Last, the Respondent hired Tammy
Ickes on December 2, 1998, as a “Vicon machine opera-
tor.” The Respondent hired these employees, notwith-
standing that, since January 1998, it had posted at its
facility a sign that said it was not accepting applications.
B. Procedural History
On June 2, 1998, the judge issued a decision finding
that the Respondent violated Section 8(a)(3) and (1) by
failing to recall O’Brien and Fogoros in 1998 to certain
positions which he found were substantially equivalent to
their prestrike jobs. The Respondent argued, as an af-
firmative defense, that it had no duty to recall O’Brien
and Fogoros in 1998 because they previously had aban-
doned their employment relationship with the Respon-
dent by obtaining “regular and substantially equivalent
employment” elsewhere within the meaning of Section
2(3) of the Act.4 The judge rejected the Respondent’s
abandonment defense because he believed the defense
was not available to defeat the reinstatement rights of
unfair labor practice strikers, as opposed to economic
strikers. In addition, the judge 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 violated Section 8(a)(3) and
(1) by refusing to consider O’Brien and Fogoros, because
of their union activity, for nonequivalent positions that
became available in 1998.
On July 18, 2001, the Board issued its original Deci-
sion and Order, affirming in part and remanding in part
for additional findings. Zimmerman Plumbing & Heat-
ing Co., 334 NLRB 586 (2001).
With respect to O’Brien, the Board affirmed the
judge’s finding that the material expediter and Vicon
operator positions that became available in February and
December 1998, respectively, were substantially equiva-
lent to O’Brien’s prestrike job as an apprentice sheet
metal worker. The Board, however, reversed the judge’s
ruling that the abandonment defense was not available in
the case of unfair labor practice strikers. The Board
therefore remanded the Respondent’s contention, not
passed on by the judge, that O’Brien had previously
abandoned his employment relationship with the Re-
spondent by accepting substantially equivalent employ-
ment at W. Soule.

4 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 include
any individual whose work has ceased as a consequence of, or in con-
nection with, any current labor dispute or because of any unfair labor
practice, and who has not obtained any other regular and substantially
equivalent employment.
With respect to Fogoros, the Board found that none of
the positions that became available in 1998 were substan-
tially equivalent to his prestrike job. Accordingly, the
Board dismissed the allegation that the Respondent
unlawfully failed to recall Fogoros to substantially
equivalent positions. As described below, however, the
Respondent’s underlying contention that Fogoros too had
abandoned his employment relationship with the Re-
spondent remained an issue and was included in the re-
mand.
Turning to the judge’s finding that the Respondent
unlawfully failed to consider O’Brien and Fogoros for
certain nonequivalent positions that became available in
1998, the Board found that the Respondent’s abandon-
ment defense was relevant to the Wright Line analysis.
Thus, the Board remanded the Wright Line issues to the
judge to consider whether O’Brien and/or Fogoros previ-
ously had abandoned any interest in returning to work for
the Respondent and, if so, whether the Respondent was
aware of this when it did not consider them for non-
equivalent positions that became available in 1998.
On remand, the judge found that the Respondent failed
to establish that O’Brien had abandoned any interest in
returning to work for the Respondent. The judge there-
fore reaffirmed his finding that the Respondent violated
Section 8(a)(3) and (1) by failing to offer O’Brien the
substantially equivalent material expediter and Vicon
machine operator positions that became available in Feb-
ruary and December 1998, respectively. The judge also
reaffirmed his finding that the Respondent unlawfully
failed to consider O’Brien for other positions, including
the material expediter position that became available in
January 1998, because of his union activity.
In contrast, the judge dismissed the remaining 8(a)(3)
allegation that the Respondent failed to consider Fogoros
for the jobs that became available in 1998 because of his
union activity. The judge found that Fogoros previously
had abandoned any interest in resuming employment
with the Respondent and that the Respondent was aware
of this at the time the positions became available. Alter-
natively, the judge found that, even if Fogoros had not
abandoned any interest in working for the Respondent,
the Respondent’s failure to consider Fogoros for avail-
able positions in 1998 was not based on his union activ-
ity. The judge specifically credited the testimony of
President Bruce Link and Operations Manager Richard
Mahoney that Fogoros was not considered for the posi-
tions because he was a skilled journeyman and they did
not believe he would be interested in these less-skilled
jobs, which offered substantially lower wage rates than
Fogoros was then earning at Diversified Mechanical.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1304
III. ANALYSIS
A. Applicable Principles
As the Board explained in its 2001 decision in this
case, both economic and unfair labor practice strikers
retain their status as “employees” under Section 2(3).
See NLRB v. Mackay Radio & Telegraph Co., 304 U.S.
333, 345 (1938). Therefore, an employer violates Sec-
tion 8(a)(3) and (1) by failing to timely reinstate strikers
to their prestrike or substantially equivalent jobs upon
their unconditional offer to return to work, unless the
employer establishes a legitimate and substantial busi-
ness justification for failing to do so. See NLRB v.
Fleetwood Trailer Co., 389 U.S. 375, 378 (1967); Mas-
tro Plastics Corp. v. NLRB, 350 U.S. 270, 278 (1956);
Marchese Metal Industries, 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).5
An employer may be relieved of its obligation to rein-
state a former striker if it demonstrates, as an affirmative
defense, that the striker abandoned his or her reinstate-
ment rights. A striker, or a former striker awaiting rein-
statement, may accept interim employment elsewhere.
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
striker’s reinstatement rights. If, however, the employer
establishes that a striker accepted other “regular and sub-
stantially equivalent employment,” within the meaning
of Section 2(3), then the employer may avoid its obliga-
tion to offer the striker reinstatement. See Marchese
Metal Industries, 313 NLRB at 1028–1031; Little Rock
Airmotive, Inc., 182 NLRB 666, 666–667 (1970), enfd.
in pertinent part 455 F.2d 163 (8th Cir. 1972). This bur-
den is a heavy one.
The Board has long held that the question of whether a
striker’s interim employment constitutes “regular and
substantially equivalent employment” cannot be an-
swered by a “mechanistic application of the literal lan-
guage of the statute.” Little Rock Airmotive, 182 NLRB
at 666–667; cf. Phelps Dodge Corp. v. NLRB, 313 U.S.
177, 189–197 (1941) (approving Board’s conclusion that
discriminatees whom employer refused to hire because
of their union affiliation did not forfeit their “employee”
status or eligibility for reinstatement merely by accepting
equivalent employment elsewhere). While the Board
compares the terms and conditions of the striker’s in-

5 The absence of unlawful intent is not a defense. See Fleetwood
Trailer, 389 U.S. at 378.
terim job to his prestrike job, the Board ultimately gives
controlling weight to whether the “striker intended to
abandon his employment with the employer by accepting
interim employment with another employer.” Marchese
Metal, 313 NLRB at 1030; see also Rose Printing Co.,
304 NLRB 1076, 1076 fn. 3 (1991). Accord: Alaska
Pulp Corp., 326 NLRB 522, 524 (1998), enfd. 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
affirmatively prove otherwise. See Marchese Metal, 313
NLRB at 1022 fn. 1, 1031.
B. Findings
Applying these principles, we find, in agreement with
the judge, that: (1) the Respondent violated Section
8(a)(3) and (1) by failing to recall O’Brien to the
substantially equivalent material expediter and Vicon
operator positions that became available in February and
December 1998; (2) the Respondent further violated
8(a)(3) and (1) by failing to consider O’Brien for other
nonequivalent positions in 1998; and (3) the Respondent
did not violate the Act by failing to consider Fogoros for
nonequivalent positions.
1. The Respondent unlawfully failed to recall O’Brien
to the substantially equivalent material expediter and
Vicon operator positions that became available in Febru-
ary and December 1998. We agree with the judge that
the Respondent failed to establish that O’Brien intended
to abandon his reinstatement rights by accepting interim
employment at W. Soule. Although the Respondent
showed that O’Brien’s interim job offered higher pay and
better benefits, it produced no other evidence that
O’Brien intended to permanently sever his employment
relationship with the Respondent. The record does show,
however, that O’Brien contacted the Respondent several
times after his layoff about returning to work.6 In these
circumstances, we find that the Respondent failed to re-
but the presumption that O’Brien did not intend to forfeit
his recall rights. See Marchese Metal Industries, 313
NLRB at 1031; K. Van Bourgondien & Sons, 294 NLRB
268, 275 (1989).
Accordingly, we affirm the judge’s finding that the
Respondent violated Section 8(a)(3) and (1) by failing to
offer O’Brien the substantially equivalent material expe-
6 The General Counsel argues, and we agree, that O’Brien was not
required to maintain contact with the Respondent to preserve his rein-
statement rights. See Alaska Pulp Corp., 300 NLRB 232, 241 (1990),
enfd. mem. 944 F.2d 909 (9th Cir. 1992). That O’Brien did so, how-
ever, further undermines the Respondent’s claim of abandonment.
ZIMMERMAN PLUMBING & HEATING CO. 1305
diter and Vicon machine operator positions that became
available in February and December 1998, respectively.7
2. The Respondent also unlawfully failed to consider
O’Brien for nonequivalent positions that became avail-
able in 1998, including a material expediter position that
became available in January. It is undisputed that the
Respondent did not consider O’Brien for these positions,
even though he was qualified for the positions. More-
over, substantial evidence in the record shows that the
Respondent knew or reasonably should have known that
O’Brien was interested in any available positions. After
the Union made an unconditional offer to return to work
at the end of the strike, O’Brien inquired of Mahoney
and Link about “the availability of work” and when he
“could start working for them again.” Following a simi-
lar inquiry from O’Brien in January 1997, Link assured
O’Brien that he would be contacted if things picked up.
But the Respondent did not contact O’Brien when
things picked up, and, in agreement with the judge, we
find that the reason was O’Brien’s union activity. It is
undisputed that O’Brien engaged in significant union
activity during the unfair labor practice strike, and that
the Respondent had knowledge of this activity. More-
over, as the judge emphasized, the Respondent was hos-
tile to O’Brien’s union activity and previously had dem-
onstrated a willingness to act on its hostility. See Zim-
merman Plumbing & Heating Co., 325 NLRB 106 fn. 1,
120 (1997) (Zimmerman I) (finding that the Respondent
violated the Act by more harshly applying its absence
rules to O’Brien and other union supporters, transferring
O’Brien from a foreman position to isolate him from
other employees, and terminating O’Brien from an ap-
prenticeship program). In these circumstances, we find
that the General Counsel established that the Respondent
continued to engage in discrimination by failing to con-
sider O’Brien for positions that opened in 1998 because
of his union activity.
We therefore agree with the judge that the Respondent
failed to establish that it did not consider, or in any event
would not have considered, O’Brien for the positions that
became available in 1998 because he previously aban-
doned any interest in working for the Respondent and
because the Respondent did not think he was interested
in less-skilled, lower-wage positions. The Respondent’s
contentions lack merit because we have affirmed the
judge’s conclusion that O’Brien did not abandon his em-
ployment relationship with the Respondent, and the

7 The judge ordered the Respondent to make O’Brien whole for any
loss of earnings and other benefits suffered from the date of his offer to
return to work in September 1995. As the Respondent and the General
Counsel point out, the appropriate remedial period should run only
from the date of the Respondent’s unlawful failure to recall O’Brien.
judge specifically discredited the Respondent’s conten-
tion that it believed O’Brien was not interested in return-
ing to work. Indeed, the credited evidence shows not
only that O’Brien inquired about “the availability of
work” and when he “could start working for them again,”
but also that as late as January 1997, the Respondent
itself assured O’Brien that it would contact him when
work was available.
Our dissenting colleague argues that these facts cannot
support a finding that O’Brien effectively applied for
nonequivalent positions. We disagree.
All agree that O’Brien was not required to apply for
his former or substantially equivalent positions following
his unconditional offer to return to work. Indeed, upon
receiving a striker’s unconditional offer to return to
work, it is the employer’s affirmative obligation to recall
the striker to his former or substantially equivalent posi-
tion. See generally Laidlaw Corp., supra at 1368. We
are thus left to determine the significance of O’Brien’s
repeated inquiries of the Respondent about any available
work and when he could start working for the Respon-
dent again. Our colleague concludes that O’Brien’s con-
tacts merely evidenced his anxiousness to return to his
former position or a substantially equivalent one. In con-
trast, we find that O’Brien’s words reasonably put the
Respondent on notice to consider him for any available
position.
O’Brien did not simply ask about his former job.
Rather, O’Brien asked generally about the “availability
of work,” and “when [he] could start working for them
again.” In January 1997, he asked if the Respondent
“had any work available” (emphasis added). In our view,
the open-ended nature of O’Brien’s inquiries constituted
oral applications for any available position. O’Brien’s
use of the word “any” plainly indicated an interest in
whatever kind of work might have existed for him.
For all of these reasons, we find that O’Brien effec-
tively applied for nonequivalent positions that became
available in 1998.
Accordingly, we affirm the judge’s finding that the
Respondent violated Section 8(a)(3) and (1) by refusing
to consider O’Brien for positions that became available
in 1998, because of his union support.
3. Last, for the following reason, we affirm the
judge’s finding that the Respondent did not violate Sec-
tion 8(a)(3) and (1) by failing to consider Fogoros for
nonequivalent positions that became available in 1998.
The judge specifically credited the testimony of Presi-
dent Bruce Link and Operations Manager Richard Ma-
honey that they did not consider, and would not have
considered, Fogoros for the positions that became avail-
able in 1998 because they did not believe Fogoros, as a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1306
skilled journeyman, would be interested in these less-
skilled, lower-wage positions. As there is no basis for
reversing the judge’s credibility determinations, we af-
firm the judge’s dismissal of this allegation.8
ORDER
The National Labor Relations Board orders that the
Respondent, Zimmerman Plumbing and Heating Co.,
Inc., Kalamazoo, Michigan, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to immediately reinstate unfair
labor practice striker Tim O’Brien to the substantially
equivalent material expediter and Vicon machine opera-
tor positions that became available in February and De-
cember 1998, respectively.
(b) Failing and refusing to consider Tim O’Brien for
the nonequivalent positions that became available in
1998 because of his union activity.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
unfair labor practice striker Tim O’Brien immediate and
full reinstatement to the material expediter position that
became available in February 1998 and to the Vicon op-
erator position that became available in December 1998
or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to his seniority or any
other rights or privileges previously enjoyed, and make
him whole for any loss of earnings and other benefits
suffered as a result of the Respondent’s refusal to rein-
state him to those positions, with backpay to be com-
puted in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), and with interest thereon to be
computed in accordance with New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to
consider Tim O’Brien, and within 3 days thereafter no-
tify O’Brien in writing that this has been done and that
the unlawful action will not be used against him in any
way.
(c) Notify Tim O’Brien, the Charging Party, and the
Regional Director for Region 7 of current and future

8 As a result, we find it unnecessary to pass on the judge’s findings
that Fogoros previously had abandoned any interest in returning to
work for the Respondent and that the Respondent was aware of this at
the time.
openings in the nonequivalent positions and substantially
equivalent positions.
(d) Consider Tim O’Brien for current and future open-
ings in the nonequivalent positions and substantially
equivalent positions, in accord with nondiscriminatory
criteria.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to determine the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Kalamazoo, Michigan, copies of the at-
tached notice marked “Appendix.”9 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 and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since January 20,
1998.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER SCHAUMBER, concurring in part and dissenting
in part.
As explained in the first section below, I agree with
my colleagues that the Respondent violated Section
8(a)(3) and (1) of the Act by failing to recall former un-
fair labor practice striker Timothy O’Brien to positions
which were substantially equivalent to his prestrike posi-
9 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.”
ZIMMERMAN PLUMBING & HEATING CO. 1307
tion.1 However, for the reasons set out in the second
section below, I disagree with my colleagues’ finding
that the Respondent also violated Section 8(a)(3) and (1)
by refusing to consider O’Brien for positions that be-
came open during the backpay period which were not
substantially equivalent to his prestrike position.
A. The Failure to Recall O’Brien to Substantially
Equivalent Positions
In Rose Printing Co., 304 NLRB 1076, 1076 (1991),
the Board held that an employer was obligated to rein-
state former economic strikers only to their prior posi-
tions or to substantially equivalent jobs, but not to any
other jobs which were not substantially equivalent to the
former strikers’ prestrike positions. In reaching this con-
clusion, the Board explained that

[o]ur duty is to ensure that strikers who have uncondi-
tionally offered to return to work are to be treated the
same as they would have been had they not withheld
their service. They are therefore entitled to return to
those jobs or substantial equivalents if such positions
become vacant,[2] and they are entitled to nondiscrimi-
natory treatment in their applications for other jobs. Id.
at 1078.

In the present case, I agree with the majority that the mate-
rial expediter position which became available in February
1998, and the Vicon operator position which became avail-
able in December 1998 were substantially equivalent to
O’Brien’s prestrike position. Thus, O’Brien was entitled to
return to these substantially equivalent positions when they
became available and the Respondent violated the Act by
failing to recall O’Brien to these positions.
In reaching this conclusion, I also agree that the Re-
spondent’s defense to this violation, i.e., that O’Brien
abandoned his reinstatement rights and therefore was not
entitled to reinstatement, must fail. As the majority
points out, the evidence of O’Brien’s repeated contacts
with the Respondent about when he could return to work
belies such a finding. As to these contacts, O’Brien in-

1 I also agree with my colleagues, for the reasons stated by them, that
the Respondent did not violate the Act by refusing to consider former
striker James Fogoros for nonequivalent positions. For the reasons set
out in the second section below, I would also dismiss this allegation on
the additional ground that Fogoros never applied for such positions.
2 In Rose Printing Co., supra, the Board considered the reinstatement
rights of economic strikers. The present case concerns unfair labor
practice strikers who are entitled to immediate reinstatement at the
conclusion of a strike. However, when, as here, an employer estab-
lishes that no positions were available when the strike ended, its obliga-
tion is the same as that of an employer after an economic strike, i.e., it
must offer the former strikers reinstatement to their prestrike positions
or to substantially equivalent positions when such positions become
available.
quired within a month or two of the end of the strike in
September 1995 “about the availability of work, and
when [he] could start working for [the Respondent]
again.” (Hearing of October 29, 2001, Tr. 265.) After
that conversation, O’Brien had several other “conversa-
tions with [the Respondent] regarding the—being re-
called to work.” (Id.) In January 1997, when O’Brien
again inquired “if [the Respondent] had any work avail-
able,” he was told “[n]o, not at that time. When things
picked up, [the Respondent] would give [O’Brien] a
call.” (Hearing of February 10, 1999, Tr. 83–84.)
O’Brien’s many inquiries about getting back to work
again, about being recalled, establish that he did not
abandon his right to reinstatement to his former position
or to a substantially equivalent position.
B. The Alleged Refusal to Consider O’Brien for
Nonequivalent Positions
I part company with the majority, however, when it
concludes that the Respondent violated the Act by refus-
ing to consider O’Brien for nonequivalent positions. To
find the violation, the majority relies on the rather novel
theory that O’Brien’s repeated contacts with the Respon-
dent were not only inquiries about his old job or substan-
tially equivalent positions, but were also, in effect, sub
silentio applications for nonequivalent jobs. In my view,
the evidence does not support such a finding. Conse-
quently, I would reverse the judge’s finding that the Re-
spondent unlawfully refused to consider O’Brien for
these positions and dismiss this allegation of the com-
plaint.
As explained above, former strikers are “entitled to
nondiscriminatory treatment in their applications for
other jobs [i.e., jobs not substantially equivalent to their
prestrike positions].” Rose Printing Co., 304 NLRB at
1078 (emphasis added). Since an employer has no obli-
gation to recall former strikers to nonequivalent posi-
tions, logic and the above language dictate that a sine
qua non for a finding that an employer unlawfully re-
fused to consider an individual for a nonequivalent job is
that the individual actually has applied for the position,
that is, that he be an applicant. As the Board explained
in FES, 331 NLRB 9, 15 (2000) (emphasis added):

To establish a discriminatory refusal to consider,
pursuant to Wright Line, [251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982)], the General Counsel bears the
burden of showing the following at the hearing on
the merits: (1) that the respondent excluded appli-
cants from a hiring process; and (2) that antiunion
animus contributed to the decision not to consider
the applicants for employment. Once this is estab-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1308
lished, the burden will shift to the respondent to
show that it would not have considered the appli-
cants even in the absence of their union activity or
affiliation.

In the present case, not only is there no evidence that
O’Brien ever applied with the Respondent for non-
equivalent positions, but there is no evidence that he ever
intended to apply for such positions.3 The majority at-
tempts to finesse this fatal flaw in its analysis by simply
asserting that “substantial evidence in the record shows
that the Respondent knew or reasonably should have
known that O’Brien was interested in any available posi-
tions.” (Emphasis added.) That evidence, however, is
neither substantial nor does it support such a finding.
For, the “substantial evidence” upon which the majority
rests its finding that the Respondent “knew or reasonably
should have known” that O’Brien was interested in non-
equivalent positions consists of the same contacts which
the majority has already found were inquiries about the
availability of substantially equivalent positions. Such
inquiries about the “availability of work,” or when one
could return—or be “recalled”—to work “again” are not,
in my view, applications, much less applications for non-
equivalent positions.
My colleagues attempt to gloss over this lack of evi-
dence by asserting that since O’Brien was not required,
as a matter of law, to make inquiries about returning to a
substantially equivalent position to preserve his right to
do so, “O’Brien’s words reasonably put the Respondent
on notice to consider him for any available position.”
(Emphasis in original.) The facts do not admit of such an
interpretation. O’Brien was lawfully entitled to return to
a substantially equivalent position after the strike. His
inquiries evidence his anxiousness to do so. Such inquir-
ies are not uncommon. That is the end of the matter. By
deriving their understanding of O’Brien’s words from the
legal context in which they arose, rather than from the
plain language of the words themselves, my colleagues
impose on O’Brien’s words a legal significance not
found in the words themselves and, by so doing, assume
under the guise of legal “analysis” what they are, in fact,
required to prove.
As to the plain meaning of the words themselves, my
colleagues assert that O’Brien’s use of the word “any” in
his job inquiry of January 1997, when he asked if the
Respondent “had any work available,” as well as his
other “open-ended” inquiries, “constituted oral applica-

3 I am aware that during the relevant time period the Respondent had
posted at its facility a sign that stated the Respondent was not accepting
applications. I find the posting irrelevant to the present analysis in the
absence of evidence that O’Brien intended to apply for nonequivalent
positions.
tions for any available position.” This is simply not the
case. First, as explained above, O’Brien’s inquiries
about the “availability of work,” or when one would be
“recalled” to work “again” cannot reasonably be con-
strued as applications for employment, i.e., as requests to
be considered for positions not previously held, in this
case nonequivalent positions. Second, given this context,
it cannot be said that O’Brien’s use of the word “any” in
his inquiry of January 1997, about the availability of
“any” work, standing alone, provided reasonable notice
to the Respondent that O’Brien was making an oral ap-
plication for nonequivalent positions.
To find otherwise, as my colleagues do, is to cure the
lack of evidence, the failure of proof that O’Brien actu-
ally applied for nonequivalent positions, by shifting the
burden of establishing that such application was in fact
made from the General Counsel to the Respondent to
show that it wasn’t. By thus shifting the burden of proof,
my colleagues reverse well-settled Board law that re-
quires former strikers specifically to apply for non-
equivalent positions. The effect of my colleagues’ deci-
sion is to require instead that an employer offer a former
striker any nonequivalent position available whenever
the striker calls, as here, and inquires about the availabil-
ity of work and when he can anticipate being recalled. I
am not prepared to reverse Board law in this manner
without an explanation of why such a change is neces-
sary. My colleagues neither admit the change nor pro-
vide the explanation.
In sum, since it is agreed that O’Brien’s job inquiries
related to positions, which were substantially equivalent
to his former position, I cannot find, as my colleagues
do, that these same inquiries evidence O’Brien’s applica-
tion for nonequivalent positions. In the absence of record
evidence to the contrary, I must find that O’Brien never
applied for the nonequivalent positions at issue. It fol-
lows that in these circumstances, the Respondent cannot
be found to have unlawfully refused to consider
O’Brien’s application. Accordingly, I would reverse the
judge and dismiss this allegation of the complaint.
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 vio-
lated the 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
ZIMMERMAN PLUMBING & HEATING CO. 1309
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 ac-
tivities.

WE WILL NOT fail and refuse to immediately reinstate
unfair labor practice striker Tim O’Brien to the substan-
tially equivalent material expediter and Vicon machine
operator positions that became available in February and
December 1998, respectively.
WE WILL NOT fail and refuse to consider Tim O’Brien
for the nonequivalent and substantially equivalent posi-
tions that become available.
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 striker Tim
O’Brien immediate and full reinstatement to the material
expediter position that became available in February
1998, and to the Vicon operator position that became
available in December 1998 or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, with interest.
WE WILL consider Tim O’Brien for current and future
openings in nonequivalent positions and substantially
equivalent positions, in accord with nondiscriminatory
criteria.

ZIMMERMAN PLUMBING AND HEATING CO.,
INC.

Amy J. Roemer, Esq., for the General Counsel.
Elizabeth Welch Lykins, Esq., of Grand Rapids, Michigan, for
the Respondent-Employer.
Tinamarie Pappas, Esq., of Ann Arbor, Michigan, for the
Charging Party.
SUPPLEMENTAL DECISION
BRUCE D. ROSENSTEIN, Administrative Law Judge. On June
2, 1999, I issued a decision in the subject case. On July 18,
2001, after review of my decision, the National Labor Relations
Board (the Board),1 issued an order remanding the case to de-
termine whether employee Timothy O’Brien unequivocally
intended to sever his employment relationship with the Re-
spondent, and if O’Brien and employee James Fogoros were
excluded from consideration for jobs that became available in
1998 because of their union affiliation. The Board further or-
dered me to prepare a supplemental decision setting forth

1 See 334 NLRB 955 (2001).
credibility resolutions, findings of fact, conclusions of law, and
a recommended order, as appropriate.
I. BACKGROUND
The complaint alleges that the Respondent violated Section
8(a)(1) and (3) of the Act by failing to offer former unfair labor
practice strikers O’Brien and Fogoros reinstatement to newly
created positions that were substantially equivalent to their
prestrike positions. The complaint also alleges that the Re-
spondent violated Section 8(a)(1) and (3) of the Act by failing
to offer O’Brien and Fogoros certain of these new positions
because of their union activity.
II. FACTS
The Respondent fabricates sheet metal products at its facility
in Kalamazoo, Michigan, and installs these products 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. Among the
unfair labor practice strikers were O’Brien, an apprentice sheet
metal worker, and Fogoros, a journeyman sheet metal worker.
O’Brien began working for the Respondent in 1991. As an
apprentice sheet metal worker, O’Brien spent approximately 70
to 80 percent of his time fabricating sheet metal in the shop at
the Respondent’s Kalamazoo facility. In early 1995, the Re-
spondent promoted O’Brien to a working foreman position in
the shop. In this position, O’Brien continued fabricating sheet
metal, but also operated 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 earned
$11 per hour and received health benefits partially funded by
the Respondent. O’Brien also was eligible to participate in the
Respondent’s 401(k) retirement plan.
The Respondent hired Fogoros in 1986. As a journeyman
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 be-
tween $14 and 20 per hour and was eligible to participate in the
Respondent’s health and retirement plans.4
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 Plumbing Co., 325 NLRB 106 (1997), enfd. in
pertinent part 188 F.3d 508 (6th Cir. 1999) (unpublished table deci-
sion), (Zimmerman I) found that all of these actions were unlawful.
4 In Zimmerman I, the Respondent was ordered to rescind the no-
solicitation/no-sticker rule on hardhats and to rescind an attendance
related disciplinary warning letter to Fogoros.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1310
On September 6, 1995, the day the unfair labor practice
strike ended, the strikers including O’Brien and Fogoros made
an unconditional offer to return to work. The Respondent in-
formed O’Brien and Fogoros that it had no available work for
them, but it would place them on a preferential hiring list and
recall them when work was available in their respective job
classifications.
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 contractors. In Febru-
ary 1997, O’Brien obtained a job as an apprentice sheet metal
worker with W. Soule, Inc. Fogoros also worked for several
contractors following his layoff. In June 1997, he began work-
ing for Diversified Mechanical, Inc. as a journeyman sheet
metal worker.
As of the October 29, 2001 hearing in this case, the Respon-
dent has not recalled either O’Brien or Fogoros. The Respon-
dent argues that since September 1995, it had no openings for
apprentice or journeymen sheet metal workers. However, the
Respondent acknowledges that it hired new employees during
that time period. In particular, the Respondent 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. Weese mostly performed truckdriving duties until he
resigned in early February 1998. On February 16, 1998, 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, 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 occasions. He
also occasionally 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 1998. The Respondent also
hired Austin Wielenga, a student, to work during 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, 1998, 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 December 2,
1998, as a Vicon machine operator with an hourly wage of
$10.25. There is no evidence that Ickes had any prior experi-
ence operating a vicon machine or even performing sheet metal
work. Indeed, Ickes’ job application shows that her experience
was in providing customer service and performing clerical du-
ties.
III. APPROPRIATE CASE LAW
It is settled that both economic strikers and unfair labor prac-
tice 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)(1) and (3) of the Act by failing to immediately
reinstate strikers upon their unconditional offer to return to
work, unless the employer establishes a legitimate and substan-
tial business justification for failing to do so. See NLRB v.
Fleetwood Trailer Co., 389 U.S. 375, 378 (1967); Mastro Plas-
tics Corp. v. NLRB, 350 U.S. 270, 278 (1956); Laidlaw Corp.,
171 NLRB 1366, 1368 (1968), enfd. 414 F.2d 99 (7th Cir.
1969), cert. denied 397 U.S. 920 (1970).
The Board has recognized that one legitimate and substantial
justification for not immediately reinstating former strikers is a
bona fide absence of available work for the strikers in their
prestrike or substantially equivalent positions. See, e.g., Ran-
dall, Burkart/Randall, 257 NLRB 1, 6–7 (1981), enfd. in perti-
nent part 687 F.2d 1240 (8th Cir. 1982), cert. denied 461 U.S.
914 (1983).
A former striker awaiting reinstatement may accept interim
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). Ac-
cepting interim employment normally will have no effect on a
former striker’s reinstatement rights. One exception is that if a
former striker accepts other “regular and substantially equiva-
lent employment,” within the meaning of Section 2(3) of the
Act, then he forgoes his reinstatement rights with the employer.
See Marchese Metal Industries, 313 NLRB 1022, 1028–1031
(1994); Little Rock Airmotive Inc., 182 NLRB 666, 667 (1970),
enfd. in pertinent part 455 F.2d 163 (8th Cir. 1972).
Determining whether a former striker’s interim employment
constitutes “regular and substantially equivalent 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 accepting interim employment with another employer.”
Marchese Metal, 313 NLRB at 1030. 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 1031 fn. 1.
A. Tim O’Brien
The Board found that the material expediter position filled
by Bill MacPherson on February 16, 1998, was substantially
equivalent to O’Brien’s prestrike position. Likewise, the Board
found that Tammy Ickes’ Vicon machine operator position in
the sheet metal shop was substantially equivalent to O’Brien’s
prestrike position.
In February 1997, when O’Brien started working at W.
Soule, he held the position of an apprentice sheet metal worker
and was paid $19 per hour. While working full time, he com-
pleted the sheet metal apprenticeship program under the aus-
pices of Local 7 of the Sheet Metal Workers Union and was
promoted to a journeyman sheet metal worker at W. Soule in
August 1998. As a journeyman sheet metal worker, his starting
base pay was $23 per hour. In October 2001, O’Brien now
ZIMMERMAN PLUMBING & HEATING CO. 1311
earns $24.82 per hour in base pay. As part of his benefit pack-
age at W. Soule, he receives fully paid health insurance and is
covered by a pension plan.
O’Brien testified that after the Union made an unconditional
offer to return to work and the Respondent placed him on a
preferential hiring list on September 6, 1995 (GC Exh. 7), he
wrote several letters and made a number of telephone calls to
the Respondent inquiring about availability for employment.
Both Teresa Hazzard (Respondent’s secretary), and Richard
Mahoney (Respondent’s operations manager), acknowledges
that they were aware that O’Brien continued to inquire about
work availability after September 6, 1995. Indeed, the Board
found in its decision that O’Brien also followed up with the
Respondent concerning job availability in January 1997. At
that time, O’Brien testified that while Link informed him that
no work was currently available, he would contact him when
things picked up.
On November 15, 1999, while O’Brien was still working at
W. Soule, the Respondent sent him a letter confirming that he
would be reinstated into their apprenticeship program (R. Exh.
4). The Respondent informed the Regional Manufacturing
Tech Center at Kellogg Community College and O’Brien that
his name was added to the list of authorized apprentices and he
could begin attending the college immediately. Shortly after
O’Brien received this letter, he talked to one of Respondent’s
owners and apprised him that he would like to work for them.
The manager informed O’Brien that he was ordered to put him
back into the apprenticeship program and that is what he was
doing. (Part of remedy in Zimmerman I.) O’Brien informed
the manager if that is what he had to do to go back to work, he
would. O’Brien started the apprenticeship program in Novem-
ber 1999, and continued taking courses until February 2000,
when he stopped attending because his practical experience as a
journeyman sheet metal worker had adequately prepared him
for the remaining curriculum. While attending the course,
O’Brien conversed with an apprentice sheet metal worker em-
ployed at Respondent and informed him that he was enrolled in
the program in order to get back to work with the Respondent.
During one of these conversations in February 2000, the em-
ployee informed O’Brien that Ickes recently resigned her em-
ployment as the Vicon machine operator at the Respondent.
O’Brien credibly testified that in February 2000, he went to
Respondent’s offices and spoke to one of Respondent’s secre-
taries. He apprised her that he was interested in the position.
The secretary went upstairs and checked with Respondent’s
president who indicated that there was no opening for the posi-
tion.
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 reliev-
ing the Respondent of its duty to offer him reinstatement.
The Respondent argues that the pay and benefits earned by
O’Brien while employed at W. Soule were far superior to that
of an apprentice sheet metal worker employed at Respondent.
For example, apprentice sheet metal workers earn between $11
and $15 per hour at Respondent. In February 1997, when
O’Brien commenced employment as an apprentice sheet metal
worker at W. Soule, he earned $19 per hour. As a journeyman
sheet metal worker at W. Soule, both the pay ($24.82 per hour),
and the substantial benefit package including fully paid health
insurance and a covered pension plan is far superior to that
enjoyed at the Respondent.5 Indeed, Respondent asserts that if
O’Brien were to return to its employ as an apprentice sheet
metal worker, he would take an approximate 50-percent reduc-
tion in base pay. Under these circumstances, the Respondent
opines that O’Brien intended to sever his employment relation-
ship with the Respondent.
As a starting point, the Board presumes that the striker did
not intend to forfeit his reinstatement rights and the burden is
on the employer to prove otherwise.
For the following reasons, I find that by O’Brien’s actions
and statements, he did not intend to sever his employment rela-
tionship with the Respondent.
O’Brien testified that he would have accepted a pay reduc-
tion to go back to the Respondent if he were offered the mate-
rial expediter, vicon machine operator, or truck driver positions.
O’Brien explained his rationale on the basis of once employed
he believed he could move up into a journeyman sheet metal
position and earn close to what he was paid at W. Soule. He
also noted that the Respondent offered paid vacation benefits
based on the number of years employed while union contractors
do not pay for vacations. Likewise, he asserted that he never
intended to resign his employment with Respondent and points
to the fact that he did not withdraw his 401(k) funds from the
Respondent’s retirement plan.
While I agree that these are convincing reasons, I primarily
rely on the perseverance of O’Brien in continuing to inquire
about employment opportunities at the Respondent since being
placed on the preferential hiring list in September 1995. In this
regard, O’Brien by letters, telephone calls and personal visits to
Respondent continually renewed his interest in returning to
their employ. While the Respondent argues that they did not
believe that O’Brien would accept the positions it filled in 1998
because they were not sheet metal positions and paid half as
much as what he was earning, it never gave O’Brien the oppor-
tunity to consider such an offer of employment. Despite Link’s
statement that he would give O’Brien a call if employment
picked up, the Respondent never contacted him to inquire
whether he was interested in returning to their employ for any
of the available positions that were filled in 1998. Equally
convincing that O’Brien did not unequivocally intend to sever
his employment relationship with the Respondent was his ac-
ceptance of their offer of reinstatement into the apprenticeship
program in November 1999. Little Rock Airmotive, Inc., supra,
(employee continued to make his availability for reinstatement
known through letter, phone, and personal contact).

5 Respondent job classifications show that journeyman sheet metal
workers earned between $14 and $20.95 per hour in 1999 (GC Exh.
21), $14 and $23 per hour in 2000 (GC Exh. 22), and $14 to $25.69 per
hour in 2001 (GC Exh. 23).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1312
Additionally, in November 1999, O’Brien informed a man-
ager of Respondent that he wanted to work for them and if he
had to enroll in the apprenticeship program to do so, he would.
He also informed a fellow apprentice sheet metal worker that
he enrolled in the program in order to be reemployed at Re-
spondent and in February 2000, informed a secretary of Re-
spondent that he was interested in the vacant Vicon machine
operator position recently vacated by Ickes.
Because all that the Respondent has shown is that O’Brien
obtained a job at W. Soule at higher wages and benefits, and no
other evidence of intent that he abandoned his job, it has not
met its burden of proof in this regard. K. Van Bourgandien,
294 NLRB 268, 275 (1989).
Under these circumstances, I conclude that the Respondent
has not presented evidence to relieve it of its duty to offer
O’Brien reinstatement to the material expediter and the vicon
machine operator positions. Therefore, I find that Respondent
has engaged in violations of Section 8(a)(1) and (3) of the Act
when it refused to reinstate O’Brien in substantially equivalent
positions to his prestrike position.
B. James Fogoros
The Board found that the positions filled by Bielski,
Wielenga, and Emery in 1998, were not substantially equiva-
lent to Fogoros’ prestrike job as a journeyman sheet metal
worker. Therefore, it dismissed the complaint insofar as it
alleges that the Respondent unlawfully failed to recall Fogoros
to substantially equivalent positions that became available in
1998.
Unlike O’Brien, who persevered with repeated attempts to
establish his interest in returning to the employ of Respondent,
Fogoros did not undertake such actions. Accordingly, for the
following reasons, I find that Fogoros abandoned any interest in
working for the Respondent. Moreover, I find that the Respon-
dent was aware that Fogoros was gainfully employed in a jour-
neyman sheet metal position with a union contractor.6
By letter dated September 6, 1995, the Respondent placed
Fogoros on a preferential hiring list and requested that he notify
them if he was interested in returning to work (GC Exh. 8).
During the first 90 days after being placed on this list, Fogoros
while visiting the facility for the purpose of making his health
insurance payment made an inquiry if work was available.
After that one inquiry, Fogoros did not visit the facility again or
make any inquiries either in writing or by telephone that he was
interested in being reemployed with the Respondent. Fogoros
acknowledged that the pay and benefits at Diversified Me-
chanical were higher then he received at the Respondent and he
would undergo a substantial base pay cut if he returned to Re-
spondent’s employ in any position including that of a journey-
man sheet metal worker. Likewise, Fogoros admitted that the
fully paid health insurance benefits and the pension plan cover-

6 Link credibly testified that the construction community was small
and close knit and that various subcontractors reported to him that
Fogoros was employed at Diversified Mechanical. Additionally, when
Fogoros was laid off from a union contractor and applied for unem-
ployment insurance, the Respondent would get a copy of the applica-
tion. Thus, Respondent was aware that Fogoros was an employee of a
union contractor.
age at Diversified Mechanical were far superior to those re-
ceived while employed at Respondent. Fogoros also testified
that the sheet metal work at Diversified Mechanical and the
Respondent was identical.7
Fogoros asserted that he was interested in returning to the
employ of Respondent, and never intended to resign his posi-
tion as evidenced by leaving his contributions in the Respon-
dent’s retirement plan.8 In 1998, the positions of material ex-
pediter, vicon machine operator and truckdriver became avail-
able at Respondent. If Fogoros was truly interested in returning
to work for the Respondent, it stands to reason that he would
have made a number of inquiries between 1995 and 1998, and
in subsequent years, for available employment opportunities.
The record confirms, however, that he made no such attempts.
Under these circumstances, I find that Fogoros abandoned
any interest in working for the Respondent when he obtained
regular and substantially equivalent employment at Diversified
Mechanical.
IV. THE WRIGHT LINE ANALYSIS
The Board held that even if the Respondent was not required
to offer O’Brien or Fogoros any of the jobs that became avail-
able in 1998, the Respondent was not privileged to exclude
them from consideration for these positions because of their
union affiliation.
In Wright Line, 251 NLRB 1083 (1990), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1992), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or (1) turning on employer motiva-
tion. First, the General Counsel must make a prima facie show-
ing sufficient to support the inference that protected conduct
was a “motivating factor” in the employer decision. On such a
showing, the burden shifts to the employer to demonstrate that
the same action would have taken place even in the absence of
the protected conduct. The United States Supreme Court ap-
proved and adopted the Board’s Wright Line test in NLRB v.
Transportation Management Corp., 462 U.S. 393, 399–403
(1993). In Manno Electric, 313 NLRB 278 fn. 12 (1996), the
Board restated the test as follows. The General Counsel has the
burden to persuade 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 employee had not engaged in protected activity.
7 In H & F Binch Co., 188 NLRB 720, 725 (1971), the Board found
that three employees abandoned their employment. (Board found from
the testimony that these employees were “satisfied” with their new
positions.)
8 I am not convinced that by Fogoros leaving his contributions in the
Respondent’s retirement plan, it establishes the requisite intent that he
did not abandon his employment at the Respondent. In this regard,
Link testified that at least seven or eight former employees have left
their retirement contributions in the Respondent’s 401(k) plan.
ZIMMERMAN PLUMBING & HEATING CO. 1313
With respect to O’Brien, I find that the General Counsel has
made a strong showing that the Respondent was motivated by
antiunion considerations in refusing to consider him for avail-
able positions in 1998. In this regard, the Board previously
found that O’Brien picketed and participated in the unfair labor
practice strike that commenced on August 22, 1995. Respon-
dent was also ordered to rescind the attendance related discipli-
nary warning letter to O’Brien and to reinstate him in the ap-
prenticeship program with no loss of credit and to remove any
reference to his September 1995 removal from the program.
The burden shifts to the Respondent to establish that the
same action would have taken place even in the absence of the
employee’s protected conduct.
As it concerns O’Brien, I previously found that he did not
abandon any interest in working for the Respondent. I find that
the reasons advanced by Respondent for not considering
O’Brien for the material expediter, the Vicon machine operator
and truckdriver positions are pretextual and suggest a prede-
termined plan to make sure that one of the leading union activ-
ists not be reemployed at the Respondent.
First, as found by the Board, O’Brien was qualified and
should have been reemployed in MacPherson’s material expe-
diter position and Ickes’ Vicon machine operator position as
they were substantially equivalent to his prestrike position. The
Respondent argues that it did not offer the positions to O’Brien
because it had a good-faith belief that he was gainfully em-
ployed as a journeyman sheet metal worker and made substan-
tially more in wages and benefits compared to the vacant posi-
tions. However, it never once inquired of O’Brien whether he
was interested in those jobs. This position does not withstand
scrutiny in the face of repeated inquiries from O’Brien as to the
availability of work at the Respondent and Link’s statement to
O’Brien in January 1997, that if things picked up he would give
him a call. The shifting, inconsistent and contradictory reasons
given for the refusal to offer the above-noted positions to
O’Brien leads me to conclude that they were advanced to pre-
clude O’Brien from returning to the employ of Respondent to
prevent him from engaging in organizing activities.
Under these circumstances, and particularly noting that
O’Brien did not abandon any interest in working for the Re-
spondent, I find that the Respondent violated Section 8(a)(1)
and (3) of the Act when it excluded O’Brien from consideration
for the material expediter, Vicon machine operator, and truck-
driver positions.
With respect to Fogoros, I previously found that he aban-
doned any interest in working for the Respondent and the Re-
spondent was aware of the abandonment through his perform-
ance of identical sheet metal work at Diversified Mechanical.
Under these circumstances, and particularly noting that
Fogoros did abandon his interest in working for the Respon-
dent, I find that the Respondent did not exclude Fogoros from
consideration for any vacant position because of his protected
activities.9 Therefore, I recommend that the General Counsel’s
8(a)(1) and (3) allegations regarding Fogoros be dismissed.10

9 Both Link and Mahoney credibly testified that Fogoros was not
considered for the truckdriver position or other vacant positions be-
cause he was a skilled journeyman and they did not believe he was
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 striker Tim O’Brien to his former or substantially
equivalent positions upon his unconditional offer to return to
work, Respondent violated Section 8(a)(1) and (3) of the Act.
4. By excluding unfair labor practice striker Tim O’Brien
from the material expediter, Vicon machine operator, and
truckdriver positions upon his unconditional offer to return to
work, Respondent violated Section 8(a)(1) and (3) of the Act.
5. The Respondent did not violate the Act with respect to
any allegations concerning unfair labor practice striker James
Fogoros.
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 striker Tim
O’Brien upon his unconditional offer to return to work, I shall
recommend that the Respondent be required to reinstate him
immediately to his former position or, if that position no longer
exists to substantially equivalent positions, without prejudice to
his seniority or any other rights or privileges previously en-
joyed, dismissing if necessary any persons hired after January
20, 1998, and make him whole for any loss of earnings and
other benefits suffered as a result of the Respondent’s refusal to
reinstate him from the date of his 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 com-
puted in accordance with New Horizons for the Retarded, 283
NLRB 1173 (1987). In addition, having found that the Re-
spondent violated the Act by excluding O’Brien from consid-
eration for the material expediter, Vicon machine operator, and
truckdriver positions, I recommend that the Respondent be
directed to offer reinstatement to O’Brien to one of these posi-
tions and make him whole for any loss of pay and benefits he

interested in accepting less skilled positions. They both were aware
that Fogoros was working at Diversified Mechanical and did not be-
lieve he was interested in the positions that became available in 1998,
and paid substantially less than the approximately $23–24 per hour that
he was then earning.
10 If others disagree, I would still find that the Respondent would not
have considered Fogoros for the vacant positions in 1998 even in the
absence of his union activities. In this regard, Fogoros did not make
any inquiries concerning the availability of work at the Respondent
after his initial inquiry in September 1995, and he testified that the
sheet metal work at Diversified Mechanical was identical to that of
Respondent for which he was paid substantially more. Moreover, I
credit the testimony of Link and Mahoney that they did not consider
Fogoros for truckdriving duties or other vacant positions due to the fact
that he was a skilled journeyman sheet metal worker who was paid
substantially more than the wages paid for those positions. I also note
that Fogoros, while qualified, did not drive a truck very often during his
10 years of employment at the Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1314
may have suffered by virtue of the Respondent’s discrimination
against him, such payments to be computed as outlined above.
[Recommended Order omitted from publication.]