KSM Industries, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 27, 2007

30-CA-013762 (N.L.R.B. Sep. 27, 2007)

JD–63–07
Milwaukee, WI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
KSM INDUSTRIES, INC.,
and
UNITED STEEL, PAPER AND FORESTRY, Cases 30–CA–13762
RUBBER, MANUFACTURING, ENERGY, 30–CA–14008
ALLIED INDUTRIAL AND SERVICE 30–CA–14101
WORKERS INTERNATIONAL UNION
LOCAL 2–779, AFL–CIO.
SUPPLEMENTAL DECISION and ORDER
DAVID I. GOLDMAN
Administrative Law Judge
Christal J. Key, Esq.
of St. Louis, Missouri, for the General Counsel
Kevin J. Kinney, Esq., Timothy C. Kamin, Esq.
Emily R. Anderson, Esq. (Krukowski & Costello, S.C.)
of Milwaukee, Wisconsin, for the Respondent
Marianne Goldstein Robbins, Esq., Jill Hartley, Esq.
(Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C.)
of Milwaukee, Wisconsin, for the Charging Party
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Table of Contents
Statement of the Case…………………………………………………………………..………1
Summary of Issues......................................................................................................... 2
Summary of Board Compliance Precedent and Conclusions on Undisputed Issues ....... 4
Analysis of Contested Issues.......................................................................................... 5
A. Employees that KSM contends abandoned employment prior to recall ......... 5
1. Resigning employees ......................................................................... 5
a. Resignations during the strike ................................................. 9
i. Anthony Bannenberg .................................................... 9
ii. Mark Snyder .............................................................. 11
iii. Mark Rettler .............................................................. 13
iv. Alan Resch ............................................................... 14
v. Robert Hanrahan ....................................................... 18
b. Poststrike resignations .......................................................... 20
i. Roger Day .................................................................. 20
ii. Michael Bartelt ........................................................... 22
iii. The Union and General Counsel’s claims
that Graf, Curtis, Wiedeman, and
Kuhlenbeck were discharged.................................... 25
iv. Robert Graf ............................................................... 26
v. Allen Curtis ................................................................ 27
vi. Douglas Wiedeman................................................... 29
vii. Richard Kuhlenbeck ................................................. 30
c. Other defenses to the resignees............................................ 31
i. Respondent’s reasserted motion to dismiss................ 32
i. Respondent’s equitable defense................................. 34
2. Rodriguez’s response to KSM’s questionnaire as
evidence of abandonment of employment (Jose Rodriguez)............ 36
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B. The reinstatement process......................................................................... 37
1. The General Counsel’s formula ...................................................... 38
2. Departmental and individual reinstatement issues ........................... 39
a. Shearing............................................................................... 39
b. Inspection department.......................................................... 43
c. Stockroom............................................................................ 44
d. General Factory classification .............................................. 47
e. Shipping department and
James Kollenbroich’s reinstatement ..................................... 48
f. The offer to reinstate Michael Servi ...................................... 51
3. The order of reinstatement................................................................ 54
C. General gross backpay issues..................................................................... 60
1. beginning date for backpay period .................................................... 60
2. Cessation of backpay for those accepting,
declining, or failing to respond to an offer of recall ........................... 61
3. Discriminatees’ right to recover expenses for out-of-pocket
interim health care premiums.......................................................... 63
D. Mitigation and offset issues......................................................................... 64
1. Commencing mitigation efforts (Laverne Jung & Norbert Jahn) ....... 65
2. Adequacy of mitigation efforts (Hans Eusch and James Malson) ..... 67
3. Resignations from interim employment (Thomas Cooper,
Lawrence Wetzel, Allen Curtis, Anthony Bannenberg) .................... 70
4. Discharges from interim employment (Brandon Hottenstein,
Douglas Wiedeman, Jesus Rodriguez, Gordon Sabel) ..................... 73
5. Concealment of interim earnings (James Kollenbroich) ................... 75
6. Miscellaneous adjustments to backpay (Brandon Hottenstein,
Douglas Wiedeman, Lawrence Wetzel, Alan Curtis) ........................ 77
7. Offset for interim 401(k) and other retiree benefits received or
available to discriminatees ............................................................... 80
Supplemental Order...................................................................................................... 83
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SUPPLEMENTAL DECISION
Statement of the Case
DAVID I. GOLDMAN, Administrative Law Judge. These cases arise out of a labor dispute
that began in 1997 between KSM Industries Inc. (KSM) and its employees’ union, the United
Paperworkers Union Local 7779 (Union).1 After the parties’ collective-bargaining agreement
expired December 31, 1996, the Union commenced a strike on January 3, 1997. The strike
ended with the Union’s October 5, 1997 unconditional offer to return to work. There has been
no subsequent labor agreement. The dispute was the subject of a September 21, 2001
Decision and Order of the National Labor Relations Board (Board), reported at 336 NLRB 133
(2001), in which the Board found, inter alia that the Union’s strike converted to an unfair labor
practice strike on March 19, 1997.2 In its Decision and Order the Board found that certain of
KSM’s conduct during and after the strike violated Sections 8(a)(1), (3), and (5) of the National
Labor Relations Act (Act), including KSM’s failure and refusal to reinstate strikers to their former
positions upon the October 5, 1997 unconditional offer to return to work. The Board ordered
commensurate remedies including, in paragraph 2(c) of its Order, the direction to make whole
employees for any loss of earnings suffered by reason of the Respondent’s refusal and failure to
reinstate them after the strike. On October 3, 2006, the parties entered into a Stipulation and
Partial Settlement Agreement in which KSM waived the right to contest the Board’s Order and
the findings of fact and conclusions of law underlying the Order. The stipulation also resolved
and remedied KSM’s liability for certain unilateral changes and bargaining conduct related to
health care that the Board had found unlawful. On October 31, 2006, in the absence of further
agreement on remedial issues, the Regional Director of Board Region 30 issued a compliance
specification alleging the backpay amounts owed to employees under the Board’s Order, plus
interest accruing to the date of payment. The Respondent filed an answer to the compliance
specification on December 1, 2006, disputing the amounts owed. The Regional Director issued
an amended compliance specification on March 2, 2007. The Respondent filed an answer to
the amended compliance specification on March 23, 2007. The Regional Director issued an
amendment to the amended compliance specification on March 21, 2007.
The compliance specification in these cases was tried before me in Milwaukee,
Wisconsin, on 8 days between March 26 and April 6, 2007.3 During the hearing, counsel for the
General Counsel moved, without opposition, to file a proposed second amendment to amended

1In April 2005 the United Paperworkers voted to merge with the United Steelworkers Union.
The name of the merged union is set forth in the caption to this Decision, and its local succeeds
the United Paperworkers local as the charging party in interest to these cases. In this decision,
I refer to both this entity, and the prior charging party, as "the Union."
2A correction to the Decision and Order issued November 7, 2001. On August 1, 2002 the
board issued an Order Granting Motion for Reconsideration, reported at 337 NLRB 987 (2002).
3The compliance issues were consolidated for trial with a complaint alleging additional unfair
labor practices. During the hearing the parties reached a settlement on the outstanding unfair
labor practice case. All parties and the alleged discriminatee (Bruce Miller) were in accord with
the settlement. (Tr. 722–733). In view of this, I granted the General Counsel’s unopposed
motion to sever the unfair labor practice case, Case 30–CA–15096, and remand that case back
to the General Counsel for handling consistent with the parties’ settlement. See, e.g., Gamewell
Mfg., 291 NLRB 702 (1988). The settlement resolved all issues raised in 30–CA–15096 and all
compliance issues relating to reinstatement and backpay allegedly due Bruce Miller.
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compliance specification. I granted that motion and directed the Respondent to file an answer
to the second amendment to amended compliance specification post-hearing, which the
Respondent did on April 23, 2007.4 The parties filed excellent briefs in support of their positions
on or by June 15, 2007. On the entire record, including my observation of the demeanor of the
witnesses and other indicia of credibility, and after considering the briefs filed by the parties, I
make the following findings of fact, conclusions, and recommended order.
Summary of Issues
This compliance matter concerns KSM’s liability for its failure to reinstate strikers upon
the Union’s unconditional offer to return to work on October 5, 1997, and thereafter, as
additional vacancies arose. The case does not concern a present duty to reinstate former
strikers. At the latest, by February 2004, all former strikers had been offered reinstatement,
permanently severed prior to recall, or in a few instances, had died prior to being recalled. The
compliance specification lists 60 former strikers, including 18 for whom the General Counsel
alleges no backpay because the General Counsel agrees that these employees would have
been on layoff prior to the date on which they returned to work, severed, or declined a recall
offer. As to the remaining 42 former strikers, the General Counsel alleges backpay periods of
various times from October 5, 1997, forward. The compliance specification and the variety of
alleged backpay periods reflects the General Counsel’s recognition that at strike’s end there
was not work immediately available for all strikers.
KSM does not challenge, and therefore effectively concedes, certain facets of the
General Counsel’s compliance specification. For the very most part, the “numbers,” i.e., the
measure of increases to pay occurring during the backpay period, comparable earnings that
serve as a basis for lost hours, the legitimacy of expenses, and the amount of recoverable
medical expenses and costs are not in dispute. The areas of dispute between the parties may
be categorized into four general areas, each of which contains a variety of issues.
A. Discriminatees that KSM contends abandoned employment. KSM challenges
the General Counsel’s position that 11 employees who resigned employment during or after the
strike, but before being offered reinstatement, did so under circumstances that fail to show that
they intended to permanently sever their employment. According to the General Counsel, these
employees resigned in order to obtain 401(k) retirement funds held by the Employer, and/or in
the case of two employees, to receive vacation pay, and in the case of some of the employees
these motivations were exacerbated by KSM’s failure to reinstate the employees at the end of
the strike. According to the General Counsel, under applicable Board law these employees’
resignations do not disqualify them for reinstatement and do not toll their backpay. The
Respondent, on the other hand, contends that these employees severed employment by their
resignation, abandoned their employment, and therefore were not entitled to any (or in some
cases, any further accrual of) backpay and reinstatement. In challenging the compliance
specification in this regard, the Respondent attempts to show that each disputed individual
abandoned employment and also asserts more general legal and equitable challenges to the

4The Respondent’s answer to the second amendment to amended compliance specification
is hereby received. The proposed second amendment to amended compliance specification is
hereby included in the formal papers in this proceeding as GC Exh. 1(gg). Respondent’s
answer to it is included in the record as GC Exh. 1(hh), and the Index and description of formal
documents (formerly GC Exh. 1(gg)) is renamed GC Exh. 1(ii). I note that throughout this
decision general references to the “compliance specification” are to the extant specification that
is the product of all amendments and not to the original superseded version.
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General Counsel’s contentions. In addition, the parties dispute whether one employee’s
negative response to a KSM questionnaire asking employees about their interest in returning to
work demonstrates an abandonment of employment.
B. The reinstatement process. All parties accept that due to the presence of
“protected strike replacements” and due to a decline in production-related work opportunities, at
the strike’s conclusion KSM was not immediately required to reinstate all of the former strikers.5
At the same time, all parties agree that KSM did not reinstate as many former strikers as soon
as it should have. In other words, KSM agrees with the General Counsel that it is liable, to
some extent, for reinstatement-related issues. This shared understanding notwithstanding,
KSM and the General Counsel offer competing accounts of the number of available positions at
given times and these competing accounts, of course, result in competing conclusions as to
when employees should have been offered reinstatement and the amount of backpay owed.
KSM specifically challenges the General Counsel’s allegations regarding availability of work for
particular unreinstated strikers in certain departments in its facility. In addition, KSM disputes
the compliance specification’s underlying premise that employees for whom there was no
immediate vacancy at the strike’s conclusion should have been recalled to available positions
within their pre-strike department classification in order of their plant-wide seniority. KSM
contends that the more appropriate order of recall was the one KSM utilized of recalling
unreinstated employees, by department classification, based on whom KSM believed to be the
more qualified eligible employee. Finally, the parties dispute the adequacy and consequences
of reinstatement offers made to two former strikers.
C. General gross backpay issues. KSM challenges the General Counsel’s allegations
regarding certain general “across the board” gross backpay calculations. These include the
General Counsel’s position that the obligation to pay backpay and the duty to reinstate
employees to available positions began concurrently with the unconditional offer to return to
work on October 5, 1997. KSM, on the other hand, contends that it was entitled to a
“reasonable” period to prepare for and implement a recall, and therefore it locates the date of its
earliest reinstatement obligation as October 12, 1997, 1 week after the Union’s unconditional
offer to return. Similarly, KSM and the Government take different positions about the date
backpay is tolled by an offer of reinstatement. The varying positions will be discussed herein,
but involve questions such as whether backpay tolls the date an offer of reinstatement is mailed,
or when it is accepted or rejected, or some reasonable time after receipt. Also in dispute is
KSM’s position that the October 3, 2006 Stipulation and Partial Settlement Agreement, entered
into between the General Counsel, the Union, and KSM, operates to waive and exclude from

5In the underlying Decision in this matter, the Board found that the strike converted from an
economic to an unfair labor practice strike on March 19, 1997. At the hearing and in their briefs,
the parties use the term “protected replacement workers” to refer to replacement workers hired
prior to the conversion of the strike. In accordance with the Board’s order, the General Counsel
and Union accept KSM’s position that strikers were not entitled to displace these replacements
at strike’s end. See, KSM Industries, 336 NLRB at 136. In effect, the parties accept that these
pre-March 19 replacements were hired as permanent replacements for economic strikers.
Similarly, the parties use the term “unprotected replacement workers” to refer to those
replacement workers hired after conversion of the strike to an unfair labor practice. The parties
accept that KSM was required to displace the unprotected replacement workers to make way for
returning strikers. With the exception of one strike replacement—hired March 19, 1997—the
parties do not dispute the protected or unprotected status of the employees hired during the
strike. The dispute over the one replacement worker, of course, affects the reinstatement
obligations of Respondent at the strike’s conclusion. That issue is considered herein.
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gross backpay recovery for the out-of-pocket costs of health insurance premiums incurred
during the backpay period. KSM does not dispute that in the absence of the stipulation such
out-of-pocket payments would be included in gross backpay. However, it contends that in this
case the Government and the Union waived the right for employees to be reimbursed for such
payments through the unambiguous terms of the stipulation.
D. Mitigation and offset issues. The parties also dispute a variety of issues related to
discriminatees’ duty to mitigate their damages. These issues include KSM’s challenge to the
efforts of certain individual employees to seek and maintain interim employment, and in one
instance, KSM’s assertion that a discriminatee concealed interim earnings. In addition, based
on testimony at the hearing regarding interim employment and mitigation efforts, there are some
miscellaneous changes to the backpay figures for certain discriminatees urged by the General
Counsel and/or the Respondent. Finally, the Respondent disputes the extent of the offset for
interim retirement benefits received or available to discriminatees.
Summary of Board Compliance Precedent
and Conclusions on Undisputed Issues
A finding by the Board that an unfair labor practice was committed is presumptive proof
that some backpay is owed. Minette Mills, Inc., 316 NLRB 1009, 1010–1011 (1995); Arlington
Hotel Co., 287 NLRB 851, 855 (1987), enfd. in part. 876 F.2d 678 (8th Cir. 1989); NLRB v.
Mastro Plastics Corp., 354 F.2d. 170, 178 (2nd Cir. 1965), cert. denied, 384 U.S. 972 (1966).
The General Counsel's burden in a backpay proceeding is limited to showing the gross backpay
due each discriminatee. J.H. Rutter Rex Mfg. Co. v. NLRB, 473 F.2d 223, 230–231 (5th Cir.)
cert. denied, 414 U.S. 822 (1973). The General Counsel has discretion in selecting a formula
that will closely approximate backpay. He has the burden of establishing only that the gross
backpay amounts contained in a compliance specification are reasonable and not an arbitrary
approximation. Performance Friction Corp., 335 NLRB 1117 (2001); Mastell Trailer Corp., 273
NLRB 1190 (1984). Any formula which approximates what the discriminatees would have
earned had they not been discriminated against is acceptable if not unreasonable or arbitrary in
the circumstances. La Favorita, Inc., 313 NLRB 902, 903 (1994), enfd. mem. 48 F.3d 1232
(10th Cir. 1995). Once the gross backpay amounts are established, the burden shifts to the
employer to establish facts that would negate or mitigate its liability. United States Can Co., 328
NLRB 334, 337 (1999), enfd. 254 F.3d 626 (7th Cir. 2001); Mastro Plastics, supra. Thus, in
challenging the General Counsel’s calculations, the burden is on the employer who committed
the unfair labor practice to establish facts that reduce the amount due for gross backpay.
Atlantic Limousine, 328 NLRB 257, 258 (1999), enfd. 243 F.3d 711 (3d Cir. 2001); Florida Tile
Co., 310 NLRB 609 (1993), enfd. 19 F.3d 36 (11th Cir. 1994). Any uncertainty about how much
backpay should be awarded to a discriminatee is resolved in his or her favor and against the
respondent whose violation caused the uncertainty. Alaska Pulp Corp., 326 NLRB 522 (1998),
enfd. in part, 231 F.3d 1156 (9th Cir. 2000). Intermountain Rural Electric Ass’n, 317 NLRB 588,
590–591 (1995), enfd. mem. 83 F.3d 432 (10th Cir. 1996).
“This does not mean, however, that the Board will always approve the General
Counsel’s backpay formula even if it is reasonably designed to arrive at the approximate
amount of backpay due.” Alaska Pulp Corp., 326 NLRB at 523. The objective is to reconstruct
as accurately as possible what employment and earnings the discriminatee would have had
during the backpay period had there been no unlawful action. American Mfg. Co. of Texas, 167
NLRB 520 (1967). The Board may borrow elements from the suggested formula of each party
to account for conditions described in the evidence and thereby meet its objective of accurately
reconstructing backpay amounts. Hill Transportation Co., 102 NLRB 1015 (1953).
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Upon consideration of the General Counsel’s compliance specification, I find that as to
those portions of the compliance specification that are unchallenged by the Respondent, the
General Counsel has met his initial burden of establishing the reasonableness of the gross
backpay amounts contained in the compliance specification. The testimony of the Region’s
compliance officer, Richard Neuman, was thorough, well organized, and cogently presented.
For the most part, I accept with only minimal further discussion (sometimes necessary as
background to a disputed issue) the methods and calculations of the compliance specification to
the extent unchallenged by the Respondent. I now turn to the issues raised by the Respondent
regarding the General Counsel’s compliance specification.
Analysis of Contested Issues
A. Employees that KSM contends abandoned employment prior to recall
1. Resigning employees
With regard to 11 discriminatees who the General Counsel alleges are entitled to
backpay, the evidence demonstrates that they resigned their employment either during the
strike (in the case of 5 of the employees) or after the strike ended but before the Respondent
offered them reinstatement (in the case of 6 of the employees). In the compliance specification,
the General Counsel contends that these employees’ resignations did not terminate their right to
backpay or reinstatement as they resigned for the purpose of obtaining their funds from the
KSM-maintained 401(k) plan and/or to receive vacation pay, and (in the case of certain of the
employees resigning after the strike) because of KSM’s unlawful failure to offer timely recall.
Respondent contends that with their resignation these employees abandoned their employment
and lost their right to reinstatement. As to those employees who resigned during the strike, the
Respondent contends no backpay is owing. As to those who resigned after the strike ended
and after the General Counsel contends they should have been recalled, the Respondent
contends that the resignations tolled the accrual of any further backpay if any was owed as of
the date of resignation.
There is a fairly well developed body of Board precedent concerning the issue of
employee resignations during or after a strike. It is part and parcel of a larger body of precedent
concerning the showing necessary to demonstrate that a striker has abandoned employment,
and therefore need not be offered reinstatement.
An employer is not required to offer reinstatement to strikers who have
abandoned their employment. In order to establish abandonment of employment,
however, an employer must present "’unequivocal evidence of intent to
permanently sever [the striker's] employment relationship.’"
L.B.&B Associates, Inc., 346 NLRB No. 92, slip op. at 5 (2006) (quoting, Harowe Servo
Controls, 250 NLRB 958, 964 (1980) (quoting S & M Mfg. Co., 165 NLRB 663 (1967)));
Augusta Bakery Corp., 298 NLRB 58 (1990), enfd. 957 F.2d 1467 (7th Cir. 1992); Medite of
New Mexico, Inc., 316 NLRB 629 (1995). It is the Respondent’s burden to rebut the
presumption that employees did not intend to abandon their employment with KSM. Marchese
Metal Industries, Inc., 313 NLRB 1022 fn. 1 (1994). Of particular significance to the issues
posed in this case, “[t]he Board has consistently held that a striker’s resignation in order to
accept another job or to obtain pension funds will not of itself be evidence of abandonment of
the struck job. Rather, the board will examine the relevant circumstances to determine whether
the striker has expressed an unequivocal intention not to return to his former job.” Alaska Pulp
Corp., 326 NLRB at 524 (footnote omitted). As the Board explained in S & M Mfg. Co., supra at
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663–664, in reasoning applicable to resignations undertaken in order to obtain access to
retirement funds as well as in order to secure other employment,
“the resignations of these employees was a prerequisite to securing even interim
employment elsewhere. This does not establish, however, that these employees
had necessarily made a decision permanently to terminate their employment
should they subsequently be offered reemployment. In these circumstances and
absent any other evidence of a permanent employment termination, we find that
mere submission of their ‘resignations’ did not constitute an unequivocal
abandonment of their status as strikers or of their right to further employment
with the Respondent.”
In cases where an employee has resigned, in considering whether the employer has
demonstrated “unequivocal evidence of intent to permanently sever” (Harowe, supra), the Board
has considered a range of “relevant circumstances,” including evidence that the striker resigned
because it was the only way to obtain money from a retirement or benefits fund, whether the
employee told the employer that he had found other work (Medite, supra), whether the striker
expressed an economic need to obtain the contributions, and whether the striker abandoned the
strike following the resignation. (Rose Printing, supra).6
In this case, the 401(k) plan at issue was the product of negotiations for the1994
collective-bargaining agreement. During those negotiations, the parties agreed to the
establishment of a KSM-sponsored 401(k) retirement plan. The plan replaced a profitsharing
plan and funds from the profitsharing plan were placed in employees’ 401(k) accounts. The
plan provided for employee participant contributions, composed of salary deferred contributions,
and a 25 percent employer matching contribution up to a total employer contribution of between
$400 and $500 per year of the contract. The parties’ 1994 collective-bargaining agreement
provided for the establishment of the plan and specified the employee and employer
contribution levels. By all evidence other features of the plan were unilaterally determined by
KSM working with its third-party benefits advisors. The plan set forth specified methods for a
participant employee to obtain funds from the plan. Retirement at age 65, or disability entitled a
participant to receive his account balance. Participants who were age 59 ½ years of age could
withdraw their salary deferred contributions. For nondisabled participants under age 59 ½ there
were only limited distribution options. One was to terminate employment, at which point the
employee could receive the salary deferred and vested portion of the employer contributions.
The plan also provided that participant employees could withdraw the salary deferred portion of
their account based on a verifiable “immediate and heavy financial need of a participant.”
However, these “hardship withdrawals“ were limited to distributions on account of four
necessities: medical expenses, the purchase of a principal residence, payment of post-
secondary tuition and related fees, and the need to prevent foreclosure or eviction from a
principal residence, and then only for the amount justified by the qualifying hardship. Hardship
withdrawals came at a cost. They were considered “early withdrawals” subject to a 20 percent
federal tax and an early withdrawal penalty. Unlike some 401(k) plans, this one did not permit

6General Counsel contends that Rose Printing stands for the proposition that where a striker
qualifies his resignation by stating (through resignation letter or comment) that he is resigning in
order to obtain benefits fund monies, this serves as conclusive proof that he is not abandoning
his employment. I agree that such evidence adds to the case against abandonment, but
nothing in Rose Printing suggests that it is conclusive. Rather, Rose Printing and subsequent
cases make clear that all the relevant surrounding circumstances should be considered in
determining whether an unequivocal intent to abandon employment has been proven.
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participants to take loans from the plan. This 401(k) plan, with the described withdrawal options
remained in effect after expiration of the labor agreement and throughout the strike and relevant
poststrike period.
As part of the Government’s contention, the General Counsel argues that the
Respondent, and specifically, David Oechsner, currently KSM’s president, and a top manager
before during and after the strike, engaged in a course of conduct designed to encourage
strikers to abandon employment and waive reinstatement. According to the General Counsel,
Oechsner induced employees to resign to obtain 401(k) funds as a means of removing strikers
from employment. Oechsner had primary responsibility at the facility for, among other things,
the administration of benefits plans such as the 401(k) plan. Attendant to this, argues the
General Counsel, Oechsner rigidly enforced the restrictions on hardship withdrawals from the
plan so that employees would be more likely to terminate in order to receive 401(k) funds.
General Counsel argues that prior to the strike, and after the strike with regard to nonstrikers,
requests for hardship withdrawals were granted without as much regard for whether the reason
for the request met the plan rules and without the same vetting of documentation in support of
the request that Oechsner utilized once the strike began. The General Counsel further
contends that Oechsner purposely failed to inform employees seeking funds about the
possibility of a hardship withdrawal and also misled employees by telling them that they had to
resign in order to receive earned vacation pay. In sum, the General Counsel contends that
Oechsner’s actions essentially preclude KSM from establishing that strikers resigning to obtain
401(k) or vacation funds intended to abandon their employment and permanently sever.
The evidence does offer some support for some of the General Counsel’s contentions,
but I think General Counsel overstates both the fact and the legal consequences of Oechsner’s
dealings with employees. It is hard to miss, in multiple employees’ accounting of their
discussions with Oechsner about obtaining their 401(k) funds, the consistent alacrity with which
Oechsner suggested that they would need to resign in order to obtain their funds. Clearly, a
resignation suited the Respondent just fine. Having said that the evidence does not support a
claim that Oechsner misrepresented the terms of the 401(k) plan or the options available to
strikers who sought to withdraw money from their 401(k) accounts. The record does not contain
a single instance in which I conclude that during or after the strike Oechsner intentionally misled
an employee regarding rights under the 401(k) plan.7 The General Counsel points to employee
Hanrahan’s ability to obtain a hardship withdrawal in the spring of 1996, in the amount of
$6720.68, based on documentation showing a failure to pay property taxes—with no threat of
foreclosure or eviction—and based on oral representations that his mother’s family in Greece
needed money for medical expenses, the responsibility for which had been assumed by
Hanrahan. The evidence suggests that Hanrahan approached Oechsner in January 1996 about
a hardship withdrawal. Oechsner testified that the plan was new to KSM—“We had been in it
for barely two years and had only, you know, a small handful of . . . requests to that point so I
wasn't clear on it”—so he sent the withdrawal request forms and an explanatory letter to Emjay,
the company then administering the plan for KSM. The forms Oechsner sent Emjay indicated

7I recognize that there are instances where employees’ testimony shows that Oechsner did
not discuss in detail why they were ineligible for a loan requested by an employee (the plan
doesn’t provide for loans) or a hardship withdrawal. But in many cases he did. There is,
indeed, only one instance where an employee was misled at all, and Oechsner credibly
explained that he originally told Allan Resch that a hardship withdrawal could not be used for
medical premiums because that is what Oechsner understood at the time. He later corrected
this mistake. I do not believe the record supports the view that Oechsner intentionally misled
employees as to their 401(k) options. That is not to say he did not lead employees to resign.
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that the withdrawal request was for medical expenses. Ultimately Emjay approved the request
but before the money was paid KSM switched benefits administrators and began using Strong
Retirement Plan Services. New Strong forms, signed by Hanrahan on May 31, 1996, were
submitted to Strong, this time listing avoidance of eviction or foreclosure as the basis for the
hardship withdrawal. This request resulted in the $6720.68 distribution to Hanrahan, which
represented the entire employee portion of his account.
Oechsner admitted that during the strike, employees were required to provide
documentation supporting the reason for the withdrawal request and that the request did not
exceed the amount needed for the qualifying hardship. That was not the case with Hanrahan
prior to the strike. I do not believe Hanrahan would have received his hardship withdrawal,
based on the documentation provided in 1996, during or after the strike.8
This evidence is relevant, although not, in my view, dispositive of anything. First of all, I
accept Oechsner’s testimony that in 1996 the plan was new and KSM was still learning how to
deal with hardship requests. Moreover, as discussed supra, in determining whether an
employer has met its burden of proving an employees’ expression of an unequivocal intent not
to return to his former employment, the Board looks to conduct reflecting the employee’s
motivations and intent, not the employer’s. In considering whether an employee who has
tendered a resignation has expressed an unequivocal intent not to return, the inquiry is no
different. Obviously, the limitation of options for employees under financial strain, such as the
possibility of a hardship withdrawal, factors into the consideration of the motive for an
employee’s resignation, and whether it is part of an otherwise demonstrated unequivocal
intention not to return to his former employment. As does the dangling, if not encouragement, of
the resignation option as a way to obtain 401(k) funds. Having said that, I think that the
evidence falls short of that necessary to show that any of the strikers who resigned employment
would have received hardship withdrawals, under the same circumstances, even prior to the
strike. In addition, the evidence, which is essentially confined to showing that Hanrahan
received a hardship withdrawal in 1996 that would not have been allowed during the strike, is
inadequate to demonstrate a change in terms and conditions, discriminatorily motivated or
otherwise, for strikers seeking a hardship withdrawal during and after the strike. At trial, and on
brief, the Respondent stressed the necessity for Oechsner as benefits administrator to follow
the plan rules and relevant federal regulations in his administration of the plan. That is his
obligation, and if, prestrike, a more relaxed attitude prevailed (demonstrated in only one
circumstance) I am unable, on this record, to find that employees have been discriminated
against because the Respondent began following the plan’s rules concerning the provision of
hardship withdrawals. But what must, in sum, be viewed a highlighting and encouragement of
the resignation option to inquiring strikers is obvious, and is relevant to assessing the intentions
and motivations of strikers who resigned.

8General Counsel also contends that there is evidence that since the strike, two
replacement employees and a nonbargaining unit employee may have received hardship
withdrawals with less than full substantiation of the reason for the withdrawal and amounts
needed. Certainly, in the case of employee Keomany, Phomsouvanh, and Nash, the employer
files do not include documentation of the reasons for their hardship request or documentation of
the amount needed to meet the hardship. Oechsner testified that he recalled that
Phomsouvanh showed him paperwork to document that he was purchasing a home but that
Oechsner did not retain a copy. He could not recall whether documentation was provided by
Nash or Keomany. None of three testified. In the absence of their testimony, I decline to
conclude that they were able to receive hardship withdrawals without adequate documentation.
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I think that KSM’s treatment of vacation pay for striking employees must also be
considered. My conclusion is somewhat different on that score. Resigning for vacation pay was
a less significant alleged motive for resignation (except in the case of one or two alleged
discriminatees) but there was considerable evidence provided at trial related to the issue of
whether KSM was illegitimately denying strikers vacation pay. I am unprepared to rule (and
need not do so) on whether the Respondent was, as it claims, correctly applying the vacation
pay provisions of the expired labor agreement, but I do think the evidence shows two things: (1)
that Oechsner’s explanation at trial of the application of the vacation pay provisions was
consistent and coherent (if somewhat complicated), and (2) he followed this understanding of
the vacation pay policies, except in a couple of instances where his desire to encourage
employees to resign prompted him to tell two employees that they had to resign in order to
obtain vacation pay. As discussed herein, it is clear to me that, as part of KSM’s interest in
encouraging employees to resign, Oechsner did condition receipt of Mark Rettler and Robert
Hanrahan’s vacation pay on their resignation, in violation of KSM’s own understanding of the
vacation pay provisions. This does reveal an unseemly aspect to Oechsner’s dealings with
employees. Again, however, while it factors into my assessment of employees’ intentions when
they resigned, it is not dispositive of any issue and does not preclude the Respondent from
demonstrating an intent to abandon employment by any employee.
At this point, I turn to the evidence regarding the individuals who resigned employment
but who the General Counsel alleges continued accruing backpay and reinstatement after the
resignation.
a. Resignations during the strike
i. Anthony Bannenberg
In February 1997, striker Anthony Bannenberg wrote to KSM because he was having
“some financial difficulties and I needed to—I wanted to try to get my 401K out.” KSM sent
Bannenberg a distribution form that he filled out and sent back to KSM.9 KSM responded with a
letter from Oechsner to Bannenberg, dated February 21, 1997. On February 21, 1997,
Oechsner called Bannenberg at his interim employer, Performance Products. According to
Bannenberg, Oechsner ”told me that I would also, in order to sign off on my 401K, I would have
to put in a quit slip. I would have to quit the company.” Bannenberg told Oechsner “that if that’s
what I have to do, then I have no choice because I need the money.” Thereafter, Bannenberg
received a letter from Oechsner, dated February 21, 1997, returning the distribution forms so
that his wife’s signature could be notarized but also confirming that “as I explained in our phone
conversation today, I will also require a written statement from you confirming your voluntary
termination from employment at KSM Industries.” Subsequently, Bannenberg sent in the
notarized form, accompanied by a note, dated February 27, 1997, stating that he was “resigning
my position at KSM Industries as of the moment you read these words.” Bannenberg received
a distribution check dated March 6, 1997 from Strong in the amount of $5,111.00.
Bannenberg testified that “I wouldn’t have quit if I wasn’t put in the position to do so
because I needed this money, otherwise I would have never signed a quit slip.”10 When he

9There is a suggestion in Oechsner’s account that Bannenberg’s initial request included a
request for a loan, although Bannenberg’s testimony did not raise that.
10Oechsner suggested that Bannenberg would need to quit to receive his 401(k) funds, and
there is no evidence that Bannenberg qualified for a hardship withdrawal that would have
Continued
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resigned he was earning less money at his interim employer than he had at KSM. He continued
to picket with the strikers until June 1997, notwithstanding his interim employment.11 In
November 1997, Bannenberg obtained a copy of an October 16, 1997 letter sent by KSM to
each employee listed as a nonresigned striker after the Union’s unconditional offer to return to
work. The letter, on KSM letterhead, asked, “Do you wish to be considered for future recall to
KSM Industries as positions for which you are qualified become available?” Bannenberg
marked “Yes” in the appropriate spot beneath the question and provided his name, address,
and number. He signed the form and sent it to KSM, which received it November 6, 1997.
Respondent suggested through questioning at trial that Bannenberg marked the
“Termination of Employment” box on the distribution request paperwork when he originally sent
the form in and before Oechsner told him he had to quit. According to the Respondent, this
bolsters its contention that Bannenberg intended to sever employment even before being told by
Oechsner that he would have to quit in order to receive any 401(k) funds. Without regard to
what it would mean if Bannenberg had preemptively marked the reason for his distribution
request as a termination of employment, the difficulty with the Respondent’s argument is that
Bannenberg, who I found a creditable witness, straightforward and direct in demeanor,
repeatedly denied that he had filled out that portion of the form, and his testimony on this point
was not disputed. Notably, Oechsner, who obviously did fill out portions of the form (he initialed
it in one place), received the form from Bannenberg and would have been situated to testify that
he received the form from Bannenberg with the Termination of Employment already marked by
Bannenberg. Oechsner did not do so, nor did he deny the implication of Bannenberg’s
testimony, that the mark beside the Termination of Employment box was Oechsner’s.12
_________________________
provided an alternative to resigning to obtain 401(k) funds. Oechsner did not mislead
Bannenberg in this regard. By the same token, given Oechsner’s encouragement, and his
position as KSM’s benefits administrator, the suggestion in Respondent’s brief that Bannenberg
did not adequately explore alternatives to resignation is entitled to very little weight in
considering Bannenberg’s intentions.
11Employee Graf testified that in the spring of 1997 in the Union’s “picket trailer” Bannenberg
told him “he had to quit in order to obtain his 401K.” I admitted this evidence over Respondent’s
hearsay objection. The testimony was not offered to prove the truth of the statement,
something, in any event, that no one disputes. The statement corroborates Bannenberg’s
testimony that he remained involved with the union after his resignation and, of course,
evidences his understanding that quitting was necessary to obtain his 401(k) funds.
12As discussed in other parts of this decision, for the most part I found Oechsner to be an
honest, credible witness. There were some exceptions to this, usually related to Oechsner’s
response to a broad general question relating to his intent or practices. There are times when I
believe that in considering specific instances and conversations, a broad denial offered without
reference to the specific incident must be discounted in light of other evidence. In addition,
there is no question that, at times the volume of Oechsner’s testimony, during which he was
asked to recount multiple conversations and decisions made nearly a decade ago, taxed his
present independent recollection. To some extent his recounting of his conversations with the
resignees involved an element of reiteration of what he currently believes he would have said in
such a conversation, what the documentary evidence suggested to him, and sometimes, what
he believes KSM’s policy should have been. At the same time, Oechsner was a careful witness
and did not rebut that which he felt he could not. The instance described in the text is of several
where I think his failure (and his counsel’s failure to solicit) specific contradictory testimony adds
weight to the testimony of the other party to the conversation.
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Respondent has produced no evidence of an unequivocal intention by Bannenberg not
to return to his job at KSM. I credit Bannenberg’s contention that he resigned in order to obtain
401(k) funds. I credit his unrebutted assertion that he told Oechsner this when he agreed to
resign. There is no other evidence that Bannenberg “expressed an unequivocal intention not to
return to his job.” He was earning less money at his interim employer at the time he resigned,
and the employer has made no showing that he preferred that job. He continued to picket after
the resignation, thus showing continued interest in and concern with the future terms and
conditions of employment at KSM.13 Perhaps most telling, in November 1997 Bannenberg took
it upon himself to forward to KSM a copy of the questionnaire sent to employees and
affirmatively indicated his desire to return to his former job. This is the opposite of
abandonment.14 I find that KSM has failed to carry its burden of demonstrating that
Bannenberg abandoned his employment when he resigned from KSM.
ii. Mark Snyder
Mark Snyder was a striker who worked for KSM as a shear operator at the time of the
strike. In 1997 he “fell behind on bills.” He got a “temporary job” and also called KSM in early
April 1997 in order to “withdraw my 401(k) money.” According to Snyder’s credited (and
essentially uncontroverted) account of the conversation, he asked Oechsner about receiving his
401(k) funds and Oechsner responded, “[o[h, are you quitting?” Snyder testified that he told
Oechsner that he did not want to quit, and also told him that he needed the money. Oechsner
testified that Snyder asked about obtaining a loan but that Oechsner told him that the plan did

13The assertion in Respondent’s brief (R. Brief at 32) “Bannenberg also abandoned the
strike after his resignation” is contradicted by the record. That he stopped receiving strike
benefits is not evidence of abandonment as there is no evidence that strike benefits were paid
on that basis, as opposed to need. Respondent’s claim (R. Brief at 32) that “[e]ven the Union
considered him to have quit and to have abandoned the strike” is without basis in the record.
14Thus, Respondent’s assertion on brief (R. Brief at 32) that after his resignation
Bannenberg “never contacted Respondent again after his resignation, thus, failing to express
any interest or preparedness in returning to work for Respondent,” is false. “That [he] did so,
however, further undermines Respondent’s claim of abandonment.” Zimmerman Plumbing and
Heating Co., 339 NLRB 1302, 1304 fn. 6 (2003). I note here that Respondent makes this claim
with regard to nearly every disputed resignee, and in many instances it is true that the employee
did not subsequently contact Respondent. However, unreinstated strikers who have offered
(individually or through their union) to return to work are not required to maintain contact with
the employer in order to preserve their reinstatement rights. Zimmerman, supra. Nor are they
required to prove their continued interest by reapplying for their jobs. See Sunol Valley Golf &
Recreation Co., 310 NLRB 357, 373 (1993), enfd. 48 F.3d 444 (9th Cir. 1995). Respondent
cites the observation by Member Hurtgen, dissenting in Alaska Pulp, supra at 538, that, among
other factors persuasive to him in determining that certain employees in that case had
abandoned their employment was the fact that the strikers had failed to express interest in
reinstatement after their resignation. Notably, the Board majority in Alaska Pulp, supra at 528,
reaffirmed that,
“[u]nder Laidlaw, once the union made an unconditional offer to return to work on
behalf of all strikers, the burden shifted to Respondent to seek out strikers as
their prestrike or substantially equivalent positions became available to offer
reinstatement. Thus White was entitled to simply wait for a valid offer of
reinstatement.” (citations omitted).
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not permit loans. Snyder testified that Oechsner did not mention the possibility of a hardship
withdrawal, but he also testified that he did not tell Oechsner any of the reasons he needed the
money.15 Oechsner told Snyder that “if he received my letter of resignation he would then
forward me the paperwork to receive my 401K.” Snyder prepared and sent the resignation to
KSM by letter dated April 2, 1997. The letter included a request for the “rollover forms for
401(k)” and his accrued vacation pay.16
Snyder testified that he resigned from KSM in April 1997 “[b]ecause I needed all the
money I could get at the time” and testified that he “cashed out” his 401(k) money “as soon as
he got it.” However, he did not send in the distribution forms he received from Oechsner until
mid-July, a 3 month delay in submitting the forms that he was specifically asked about but could
not explain.17
At the time he resigned, Snyder was earning $4.80 less per hour at the job he had taken
at Hartford Finishing after the strike began.
In his discussion with Oechsner he did not tell Oechsner he was working elsewhere.
Once Snyder resigned, he ceased picketing activity.
The evidence pertaining to Snyder does not present as overwhelming a case as
Bannenberg. However, Respondent bears the burden of “present[ing] unequivocal evidence
that [Snyder] intended to sever his employment relationship with Respondent when [he] sought
and obtained his money from the 401(k) plan” (Medite, supra) and the evidence is far from

15Oechsner testified that it was his practice to tell employees about the hardship option, but
he did not specifically recall whether he did so in this instance. I believe that he did not.
Respondent, with regard to nearly every resignee, trumpets the fact that they admitted to not
having read through the 401(k) plan, and did not investigate whether a hardship withdrawal
would have been available for their particular circumstance. The suggestion is that an
employee who did not want to abandon employment would have aggressively studied the plan
and affirmatively sought advice on how to do that. I have considered, but do not accord much
weight to this argument. This is quite a high standard to judge striking employees by, or anyone
for that matter. Most employees relied upon Oechsner’s advice—he was the KSM manager in
charge of assisting employees with benefits—and his advice consistently highlighted the option
of resigning. Some employees were not forthcoming with Oechsner about the specific financial
problems they needed the money for, but it must be remembered he was a top executive at the
employer they were on strike against. A reluctance to discuss the details of financial distress
with Oechsner is not remarkable and does not evidence a lack of interest in avoiding having to
resign.
16Notwithstanding Snyder’s use of the term “rollover” in requesting the 401(k) forms
Oechsner did not recall any discussion with Snyder about the possibility of him “rolling over” his
account to another 401(k). He did not, in fact, rollover his 401(k) but took a cash distribution.
17The record is not clear as to how quickly the forms were sent to Snyder, however, the
evidence suggests that they would have been received within a week or two. A note added to
Snyder’s letter requesting the forms, surely by Oechsner or his staff , indicates the forms were
sent April 8, 1997. Snyder recalled no delay in the receipt of the forms (he testified that “it could
have been a week, it could have been a month,” but in fact, he could not remember), and based
on evidence regarding other employees, Oechsner wasted no time in supplying the forms.

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unequivocal in this regard. Snyder was an articulate and intelligent witness and gave every
indication of honestly testifying. I credit his stated motivation for resigning as being the only
means to obtain 401(k) money. Notably, the undisputed account of his conversation with
Oechsner is consistent with this asserted motive: Oechsner, not Snyder, first raised the
prospect of quitting when Snyder called to inquire about obtaining his 401(k) money and Snyder
told Oechsner that he did not want to quit, and also told him that he needed the money. I note
that Snyder’s letter asked for a “rollover” form, but that is the same form used to request a cash
distribution and that is what he took. Oechsner did not recall any discussion of a rollover and,
by itself, the use of the term to request the forms is not particularly meaningful. Obviously, the
delay in submitting the distribution forms after the resignation could be construed as an
indication that the resignation was motivated by something other than financial pressure, but
that is not necessarily (or more to the point, unequivocally) the case. Financial insecurities may
well have driven Snyder to resign, but with ready access to the money assured he may have
found other sources of funds or delayed payments for 3 months before liquidating the 401(k).
There is no requirement that an employee resign destitute in order to be adjudged to have
resigned while still being ready to return to his former employer. It is true that Snyder ceased
picketing after resigning, but this factor must be balanced against others, such as the fact that
Snyder was earning considerably less money at his interim employer at the time he resigned
and did not convey to KSM that he was working elsewhere, or that he did not want to return to
work. At the time of the resignation Snyder’s compensation was nearly 1/3 less than his KSM
compensation, and there is no evidence at all that at the time of the resignation he knew, or was
on track, or otherwise had reason to think that in the long run this job would be a better one than
KSM. In sum, the evidence might well be judged mixed, and equivocal, but Respondent has
failed to show unequivocal evidence of Snyder’s intent to abandon his employment at the time
he resigned. I find that KSM has failed to carry its burden of demonstrating that Snyder
abandoned his employment at the time he resigned from KSM.

iii. Mark Rettler
Mark Rettler was a striker who had worked at KSM since 1988. At the time of the strike
he worked in the shear department. During the strike, on or about April 10, 1997, Rettler
contacted Oechsner. He testified that he was “falling behind on bills and at the time I needed
money. So I called and I asked for my vacation pay that I had coming towards me.” Rettler’s
undisputed testimony was that he told Oechsner that “I needed the money to catch up on bills.
I’d borrowed some money from my in-laws to catch up on my mortgage.” Oechsner “informed
me that for me to receive my vacation pay, that I would have to send him a letter saying that I’d
resign my job.” The next day, Rettler wrote such a letter, stating his wish “to terminate my
employment effective immediately” and adding, “[p]lease issue all vacation pay due to me as
soon as possible.” Subsequently, Rettler received his vacation pay, which according to notes
handwritten at the bottom on Rettler’s typed resignation letter, presumably by Oechsner,
equaled 88 hours of pay at his hourly rate, paid out on April 14.18
It is significant that Oechsner did not dispute Rettler’s account in any way. As I have
said, Oechsner was a careful, and generally honest witness, and the result of those two
attributes is that Oechsner’s silence on a subject is telling. That is particularly true here
because Rettler’s testimony specifically undercuts Respondent’s assertion that no employee

18Rettler also maintained a 401(k) with KSM although the record does not reveal the amount
in it. He did not request that money when he resigned and left it with KSM until around 2004.
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was required to resign to obtain vacation pay.19 Based on his years of service, Rettler would
have qualified for 120 hours on the last anniversary of his employment, September 11, 1996.
The evidence indicates he was paid out 88 hours on April 14, suggesting that at some point
between September 11 and the beginning of the strike Rettler took 4 days (32 hours) of
vacation. But under Oechsner’s interpretation of the vacation plan, Rettler should have been
able to simply ask and receive any vacation earned as of his last anniversary date. The
undisputed evidence is that Oechsner, in violation of his own understanding of the vacation pay
policies, required Rettler to resign in order to receive vacation pay owed to him. There was,
indeed, an overriding policy at this time by KSM to encourage employees to resign.
Rettler testified that when he called Oechsner in April 1997 he had not wanted to resign,
and would not have if Oechsner had not told him he needed to resign to obtain his vacation pay.
After resigning, Rettler continued to picket for a month or two. At the time of his resignation he
was working at Performance Mold Products earning $3.00 an hour less than he had at KSM,
although he did not share his employment situation with Oechsner.
Rettler’s testimony at trial that he only resigned to obtain his vacation pay is
corroborated by the undisputed evidence that he informed Oechsner when he resigned that he
was calling Oechsner because he “needed money” and was seeking vacation pay. I believe
Rettler would not have resigned if he had not been misled by Oechsner who erroneously told
him that he had to resign in order to receive his vacation pay. By itself, this is enough to
establish that Rettler did not intend to abandon his job when he resigned. See, MCC Pacific
Valves, 244 NLRB 931 (1979) (finding 8(a)(3) violation and, most pertinently, ordering
reinstatement and backpay where employee required to sign termination slip in order to receive
already earned vacation pay). “Any uncertainty in this regard” must be held “against the
Respondent, the wrongdoer, here.” Alaska Pulp, supra at 525.
But even independent of the fact that Oechsner misled Rettler into resigning,
Respondent has failed to prove that Rettler abandoned his job when he resigned. Respondent
points out that Rettler left his 401(k) funds with KSM until 2004, but the record does not reveal
how much was in his 401(k) or that the 3 weeks of vacation pay was insufficient to ameliorate
his immediate need for extra cash, so this cannot be said to prove much. Rettler’s interim
employment paid significantly less than his KSM job, which obviously cuts against the
contention that he had lost interest in returning to his former employment. His picketing
continued for a period of time after the resignation which suggests that at the time of the
resignation he had not lost interest in the future terms and conditions at KSM. That he resigned
only to obtain the funds Oechsner conditioned on a resignation is evidenced by his credited
account of his discussion with Oechsner. Respondent has failed to prove that Rettler
abandoned his job when he resigned.
iv. Alan Resch
Alan Resch worked as a Finisher A when the strike began. He testified that during the
strike “[w]e were having hardships with the mortgage and other bills that were due,” including

19I thus discredit Oechsner’s conclusory and general denial (Tr. 1065) that anyone had to
quit their job in order to get their vacation. Rettler did. See, Mercedes Benz of Orlando Park,
333 NLRB 1017, 1035 (2001) (“it is settled that general or ‘blanket’ denials by witnesses are
insufficient to refute specific and detailed testimony advanced by the opposing sides’
witnesses”), enfd. 309 F.3d 452 (7th Cir. 2002).
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“my health insurance.” After the strike began he and his wife and children were not covered by
health insurance. Resch attempted to make a hardship withdrawal from his 401(k) account. He
contacted Strong and received the appropriate forms, completed them, and with a cover letter
dated February 18, 1997, mailed them to KSM. Although his forms, correctly, sought a hardship
withdrawal, Resch’s cover letter referenced a request for a “hardship loan.”
Oechsner responded in a February 21, 1997 letter that returned the forms for his wife’s
signature. Oechsner’s letter explained that the signature must be notarized and suggested
some ways obtain a notarized signature. Oechsner also wrote that “Federal Law requires
documentation supporting both the reason for the hardship withdrawal and the amount
requested. Hardship withdrawals are limited to the amount necessary to meet the financial
hardship.” Finally, noting Resch’s reference in his cover letter to a “hardship loan,” Oechsner
emphasized that the 401(k) plan had no provision for loans and that funds withdrawn through a
hardship withdrawal “are considered early withdrawals and are subject to both a 20% federal tax
and a 10% early withdrawal penalty. In addition future participation in the plan must be
suspended for a period of 12 months.” The letter closed by asking Resch to “[p]lease call if you
have any questions.”
The next day Resch called Oechsner. He explained to Oechsner the reasons he wanted
to take the money out of the 401(k), chiefly, in order to pay for medical insurance premiums to
cover him and his family. Oechsner told Resch that “[i]t just couldn’t be done. . . . [I]f it was for
a medical emergency then it could possibly be done, but not for just paying the premiums.”
Resch also discussed needing money for mortgage payments. Oechsner said that could not be
done unless the house was going in foreclosure, and that Resch “would have to bring
foreclosure . . . papers up to him to review and then he would decide whether or not he would
release the money.” Resch asked, Oechsner, “well isn’t there any other way [of] going about
getting the money out of there for the purposes that I needed it for.” Oechsner told Resch that
“the only way I could do that is if I was—quit.” Resch told Oechsner he did not want to quit, but
Oechsner told him that this “was the only way I could get the money.”20
The next day Resch called Strong and discussed the matter with a Strong employee,
Steve LaFore. He told Resch he did not see a problem with a hardship withdrawal in order to
make mortgage payments and health insurance payments. Resch then called Oechsner and
told him what Strong had said. Oechsner suggested setting up a three-way call with Strong,
and the three (Steve LaFore from Strong, Resch, and Oechsner) spoke the following day.
However, in this conversation, the Strong representative told Resch that it was up to the plan
administrator, Oechsner, whether or not the funds could be released.
At around this same time these conversations were taking place (although the record is
not clear on the exact dates) Oechsner was in written and oral conversation with Strong seeking
clarification on the rules governing hardship distributions. Based on fax markings (See GC 44
and 45) between February 21 and 26, 1997, Oechsner and Strong Funds exchanged faxes in
response to Oechsner’s inquiries. These exchanges were not specifically motivated by Resch’s
distribution request, but his was the most recent since the strike that raised questions Oechsner
was unsure how to answer. However, at least one question raised by Oechsner surely was
prompted by Resch. Oechsner specifically sought from Strong “documentation to support
position on payment of health insurance premiums.”

20Oechsner did not dispute Resch’s account of their phone call and I credit Resch’s
uncontradicted account.
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In testimony Oechsner denied that Strong counseled that payment of health insurance
premiums could be a basis for a medical expense hardship distribution. As a legal matter, it is
clear that they can, and the materials Strong sent Oechsner on February 26 quote the
applicable Internal Revenue Service Code section to that effect.21 However, Oechsner,
convincingly, to my mind, testified that he did not understand the rule that way and that Steve
LaFore did nothing to correct his confusion.22 Oechsner continued his discussions with Strong
regarding questions he had about hardship distributions and, going up the chain of command at
Strong, later learned from Strong vice-president John Persa that payment of health insurance
premiums was, indeed, grounds for a hardship distribution. Before learning this from Persa,
Oechsner wrote to Resch, in a letter dated March 4, 1997, attaching some pages from the plan
document and from the Internal Revenue Code governing 401(k) plans. The letter stated that:
“Based on IRS rules and advice from Strong Funds I have concluded that
payment of your medical premiums would not qualify as a basis for hardship
withdrawal. However, payment of documented medical expenses would qualify
provided all other provisions contained within the above-reference materials are
satisfied, such as ‘The distribution is not in excess of the amount of the
immediate and heavy financial need of the Participant…’” (emphasis in original).
Oechsner’s letter also stated that “[h]ardship withdrawals for the purpose of making
mortgage payments, the hardship reason you provided Steve LaFore of Strong Funds, is not
allowed. If however, the withdrawal is to prevent foreclosure I would require documentation
from the lending institution substantiating both the claim and the amount required.”
Next, hoping to find another way to pay some of his bills, Resch wrote to KSM on March
29 requesting vacation pay for the period April 7 through 25.
Oechsner’s response came by letter dated April 9 and advised “of two recent
developments that concern you.” First, Oechsner stated, without further explanation that “I am
unable to comply with your request for vacation pay starting April 7 and running through April
25, 1997.” Second, Oechsner referenced his March 4 letter and stated that “I was informed by
Strong Funds on Tuesday April 8, 1997, that their original interpretation of our plan was in error
and that withdrawal for the purpose of making health insurance premium payments is indeed

2126 U.S.C. § 213 states:
(1) The term “medical care” means amounts paid . . . .
* * * * *
(D) for insurance (including amounts paid a premiums under part B of title XVIII
of the Social Security Act, relating to supplementary medical insurance for the
aged) covering medical care . . . .
22Oechsner, confused by the language, testified that when he got the materials he called
LaFore and said, “You sent me all this nice documentation. Just give me a yes or no answer.
Does it apply or doesn't it apply." Oechsner was completely wrong in the view that a medical
expense hardship distribution could not be used for insurance premiums, something he learned
later from another Strong employee, but based on demeanor and his account generally, I credit
his testimony. LaForte, who did not testify, and who presumably is versed in this material is
harder to excuse. But I find some substantiation for Oechsner’s account in LaForte’s waffling in
his conversations with Resch (as reported by Resch), and the fact that while he passed along
plan language and IRC materials to Oechsner, he did not spell out an answer for Oechsner in
writing, leaving Oechsner to interpret these legal documents.
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valid.” Oechsner’s letter indicated to Resch that if he was interested in exercising a COBRA
option to enroll in the KSM insurance plan, KSM would arrange for Resch’s reinstatement in the
plan, even though the 60-day COBRA election period had passed, but he would have to “bring
the account current” by paying the monthly premium for each month back to January.23
Resch testified that this last requirement dissuaded him from taking a medical expense
withdrawal from his 401(k) for the purpose of enrolling in the KSM health care plan. In addition,
a medical expense withdrawal would not permit him access to the 401(k) funds for house
payment and other bills beyond anything necessary for medical expenses and premiums.
Instead, by letter dated April 17, Resch wrote Oechsner and announced he was terminating his
employment with KSM. Resch testified that he took this step “[m]ainly because my obligations
for bills and what not were starting to overwhelm and I had to do something to take care of
these bills.” At the same time (and probably in the same envelope), Resch submitted a
completed 401(k) distribution request form seeking distribution of his entire vested 401(k)
account. Resch testified that he would have preferred not to resign his employment “but it was
the only way to get the money for the things I needed it for.”
After resigning in April 1997, Resch continued to picket, although to a lesser extent. He
stopped receiving strike benefits from the Union when he obtained interim employment in
March, because, in his view the union’s “money could have been used for better things,” and he
was picketing less. When Resch resigned, he was working through a temporary agency
earning less than he had at KSM. However, in his conversations with Oechsner he did not
inform Oechsner of this.
In October 1997, Resch obtained one of the KSM return-to-work questionnaires that
KSM sent directly to employees who were not listed as resigned. Resch obtained the form from
James Malson, the local union president. He completed the form, indicated that he wanted to
be considered for recall, and gave the form to Malson. Across the bottom of the form the words
“Terminated employment due to financial hardships” were handwritten. A stamp on the letter
indicates that KSM received it on October 25, 1997.24

23The reference is to the Consolidated Omnibus Budget Reconciliation Act (COBRA), 29
U.S.C. § 1161 et seq., which provides for the extension of medical care coverage to employees,
their spouses and dependent children who would lose such coverage because of termination or
a reduction of work hours. COBRA requires employers to give such employees, spouses and
dependent children written notice of their rights under the law to continue at their own expense
to participate in the employer's medical plan for a period of 18 months unless they obtain similar
coverage through re-employment prior to the expiration of that time period. A strike has been
held to be a reduction in hours that entitles employees to COBRA coverage. COBRA requires
that qualified plans provide employees with a minimum 60 day period to elect continuation
coverage (29 U.S.C. § 1165) and KSM’s plan so provides, although, as noted, Oechsner’s letter
indicated a willingness to allow Resch to elect to continue his coverage even though the 60
period had passed. The requirement that Resch enroll retroactively to the date of loss of
coverage because of the strike is required by COBRA. See, 29 U.S.C § 1162(2) (directing that
coverage must extend "from the period beginning on the date of the qualifying event").
24Resch did not see this handwriting added to the form but it was on there when he signed it
and he testified, “I would have to say it looks like my wife’s.” Resch’s wife filled out the
remainder of the form (with the exception of Resch’s signature), and I agree, the handwriting
looks very similar. Respondent did not suggest that Oechsner or anyone at the company wrote
the note. I find that Resch’s wife wrote the legend, and it is corroborative of Resch’s testimony.
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As alluded to, supra, I accept Oechsner’s contention that he did not intentionally mislead
Resch with regard to the ability to take a hardship withdrawal to pay health insurance premiums.
Nevertheless, Resch was misled by Oechsner from February through April, and during this
period, while Oechsner was denying Resch the right to take a medical expense 401(k)
withdrawal, Oechsner raised with Resch the prospect of resigning his employment in order to
provide access to the 401(k) funds. The record shows an individual searching for ways to avoid
resigning. That Resch ultimately succumbed to this suggestion is consistent with Resch’s
assertion that financial hardship motivated his actions. Of course, by the time he resigned he
knew that he was eligible for a medical expense withdrawal. Respondent contends that the real
reason Resch ultimately opted for resignation instead of a hardship withdrawal is that he had
obtained other employment in April and was therefore ready to permanently sever from KSM.
That is plausible, but hardly proven. Other evidence cuts against it. For one thing, an equally
plausible point is that while Resch waited weeks and weeks for Oechsner and KSM to figure out
that he was eligible for a hardship withdrawal his bills mounted even further. A resignation
provided access to more money in the 401(k) and with no restrictions as to what he did with it.
In addition, his new job was temporary at the time, paid significantly less than KSM, and Resch
did not discuss other work with Oechsner, and said nothing to indicate abandonment of
employment to Oechsner. Also, like Bannenberg, Resch sent word to KSM when the strike
ended that he wanted to be reinstated by completing KSM’s questionnaire in October 1997. All
of this rebuts Respondent’s theory that when he resigned he was abandoning his employment.
The fact that Resch stopped taking strike pay from the Union after he resigned is of little or no
consequence. Such benefits are commonly provided to those needing the money most, and an
employee with interim employment, and having just received 401(k) funds might well believe, as
Resch testified that the union’s “money could have been used for better things.” The claim that
when Resch resigned to obtain access to his 401(k) he intended to abandon his employment
with KSM is unproven.
v. Robert Hanrahan
Robert Hanrahan worked for KSM for about 10 years and worked in the paint
department at the time of the strike. As discussed, supra, he had previously withdrawn all
available money from his 401(k) through a May 1996 hardship withdrawal. In April 1997
Hanrahan was behind on his mortgage and received correspondence from attorneys for his
home loan mortgage company threatening him with foreclosure. Hanrahan called Oechsner to
talk to him about obtaining additional money from the 401(k), and he told Oechsner about the
threat of foreclosure.25 Oechsner told Hanrahan that “the only way he would be able to approve
any money out of my 401(k) is if I quit.” Hanrahan asked Oechsner if he was sure there was no
other way “without quitting my job because I really didn’t want to do that.” But Oechsner told
him “that’s the only way you’re going to get your money.” Hanrahan asked him whether he
could obtain some of his vacation, as he believed he had 120 hours due him. Hanrahan
testified that Oechsner said that “if I quit he’d send me the money but that was the only way he
would give me the money.” Hanrahan talked things over with his wife and they decided that “we
had no choice, that we had to—we couldn’t get thrown out of the house so I decided to write a
letter to Mr. Oechsner because he told me he needed it in writing when I talked to him on the
phone. So I wrote a letter resigning from KSM Industries.” The letter stated:

25I judged Hanrahan to be an excellent witness: honest, straightforward, with no tendency
for exaggeration or hyperbole. In addition, his testimony was not disputed. I credit his
testimony.
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David Oechsner,
You have informed me that in order to receive my vacation pay, and
401(k) money, I have to quit my job at KSM Indus.
Because of my financial situation, I am quitting my job at KSM Indus.
Thank you
/s/ Bob Hanrahan
Although Hanrahan did not talk about it a lot on the picket line, those he talked with told
him not to quit: “Well they all told me don’t quit, but I was losing my house. I had no choice. I
had to quit to get my money.”
Hanrahan received his vacation pay and the balance of his 401(k) account, which was
$8,813.38.
After resigning, Hanrahan continued to picket with the Union until the end of the strike,
although less so over time as his interim employment conflicted with time for picketing. He
obtained a job elsewhere by the end of the strike but testified that he was earning significantly
less money, and the conditions on insurance at the interim employer, which limited treatment for
preexisting conditions for 1 year were a concern to him because of his health conditions.
Hanrahan testified that he would have returned to work at KSM if he had been offered recall at
that time.
Hanrahan testified that Oechsner did not tell him there was any other way to get money
from his 401(k) without resigning. I note that the weight of the evidence suggests that there was
nothing inaccurate about this. As Oechsner testified, having taken a hardship withdrawal within
the previous 12 months, in May 1996, Hanrahan was barred in April 1997 (by the terms of the
plan and by applicable IRS rules governing the plan’s qualification status) from receiving
another hardship withdrawal within the 12 month period. It was not, however, just a matter of
waiting another month. In May 1996 Hanrahan had taken a distribution of the entire employee
contribution portion of the account. As a recipient of a hardship distribution he had been
prohibited from further contributing for 12 months. Thus, even after the 12 month period had
passed there would be no funds available for a hardship distribution. However, by terminating,
Hanrahan was eligible to receive the entire account, consisting of employer contributions,
contributions rolled over from the prior profitsharing, and earnings on contributions.
With regard to Oechsner’s linking of resignation to receipt of vacation pay, there is no
charitable interpretation. Hanrahan’s account of his conversation with Oechsner was not
disputed by Oechsner. Indeed, it is explicitly corroborated by Hanrahan’s contemporaneous
letter of resignation, in which he attributed to Oechsner the assertion “[y]ou have informed me
that in order to receive my vacation pay, and 401(k) money, I have to quit my job at KSM Indus.”
That Oechsner made this statement to Hanrahan was not disputed.26 The handwritten notes on
the letter indicate that Hanrahan was, in fact, paid 120 hours vacation pay, the full yearly
amount owed to an employee of his seniority. As Oechsner explained the vacation pay policy,

26I have previously discredited the generalized denial offered by Oechsner to the effect that
no employee had to quit their job in order to obtain their vacation pay.
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Hanrahan, who had earned 120 hours of vacation pay on his anniversary date of December 7,
1996, should have been able to ask for and receive that money at any time during the strike.
Oechsner misled Hanrahan in an effort to encourage him to resign. Hanrahan did resign,
explicitly, as stated in his resignation letter, “[b]ecause of my financial situation.” Hanrahan’s
resignation letter strongly corroborates his testimony in which he explained that he felt that he
“had no choice. I had to quit to get my money.” I cannot determine whether Hanrahan would
have resigned if he had not been misled by Oechsner regarding the necessity to resign in order
to obtain vacation pay.27 “[A]ny uncertainty in this regard“ is held “against the Respondent, the
wrongdoer here.” Alaska Pulp, supra at 525. Against this is essentially no evidence that
Hanrahan intended to abandon his job and not return if recalled. The interim employment he
subsequently secured paid less than KSM, and for a 1 year period did not cover Hanrahan’s
serious health conditions. Hanrahan testified that he would have returned to work at KSM if he
had been offered recall at that time. After his resignation he continued picketing as his interim
employment permitted. Nothing Hanrahan said or did indicates abandonment of employment
with KSM at the time of his resignation.28
b. Poststrike resignations
i. Roger Day
Roger Day was the local union president during the strike and an employee of KSM
since 1978. He was a painter at the time of the strike. At the conclusion of the strike Day and
his wife29 found themselves behind in their bills. In an effort to ameliorate the situation they
decided to withdraw money from his KSM 401(k). Day told his wife that he had to quit in order
to receive his 401(k) funds. Day’s wife testified that “we discussed it that he had to resign
because we needed his 401(k) money. That was the only way we could get it.” She testified
that Day resigned “[s]o we could get his—receive his 401(k) money to obtain the 401(k) funds.”
On October 10, 1997, Day called and left a voice-mail message at KSM stating he was
resigning and requesting a withdrawal from his 401(k) fund. Within minutes, Day’s son, Jason,
who also worked at KSM, called and left a similar message also resigning from employment at
KSM. According to Day’s widow, Day’s son quit “[b]ecause his dad did. That’s why he quit.”
That same day, October 10, Oechsner sent Day a confirming letter enclosing the 401(k)
distribution forms he and his wife needed to fill out.30 He received a disbursement from his
401(k) that month.

27See, MCC Pacific Valves, 244 NLRB 931 (1979) (finding 8(a)(3) violation and, most
pertinently, ordering reinstatement and backpay where employee required to sign termination
slip in order to receive already earned vacation pay).
28As referenced, supra, Respondent’s argument that Hanrahan (and other resignees) failure
to contact KSM and express interest in returning to work shows abandonment is at odds with
Board precedent. Zimmerman, supra; Sunol Valley Golf & Recreation Co., supra; Alaska Pulp,
supra at 528.

29Roger Day died in December 1999. At the hearing his widow, Michelle Day, offered all of
the testimony regarding Day’s resignation.
30Oechsner’s inclusion of those forms (and reference to them in his letter) suggest, and I
find, that Day requested them in the phone message in which he resigned.
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Around this time, perhaps on October 5, but in any event within a few days of his
resignation from KSM, Day resigned as president of the local union, a position in which he was
serving a second term. His wife had no explanation for this timing, but said that Day resigned
as local union president because he began working at a nonunion plant operated by his interim
employer (he worked for this employer since early 1997), and when the employer learned of his
union presidency he was told he had to resign as local union president or resign the interim job.
Day worked at that job performing work similar to that performed at KSM and earning
slightly more money than at KSM. In the first few months of 1998, Day left that job to work as a
painter in a supervisory capacity at another employer. At this job he was a salaried employee
and earned still more money but worked more hours.

I think that the weight of the evidence demonstrates that Day unequivocally intended to
abandon his employment at KSM at the time he resigned. I accept his wife’s testimony that he
was motivated to resign in order to obtain 401(k) funds, however this does not negate the
evidence that he was intending to leave KSM behind for good when he resigned. It is only a
small point that General Counsel tried but could not elicit testimony clearly stating that Day
would not have resigned but for his need for 401(k) funds. There is also the fact that Day had
obtained employment similar to his KSM job and that it paid more than KSM paid. This is
certainly not dispositive of Day’s intention but it lends context to two other pieces of evidence
that suggest Day’s intention. First, Day’s resignation from KSM was mirrored by a
contemporaneous resignation from the position as union president. The two resignations
occurred within days of each other, and within days of the end of the strike, indeed, the
resignation of union presidency was conveyed to KSM at the time the unconditional offer was
made to KSM. This relinquishment of authority over and involvement in the union Day had
headed throughout the strike strongly suggests that with his resignation from KSM Day was
intending to drop the encumbrances of the job for good. He was divesting himself of KSM-
related responsibilities and it strikes me as highly unlikely that a union president that had led his
union through a strike that concluded without a contract, would, at the same time, resign from
employment and resign his presidency, but intend to return to employment with his employer,
and this is especially unlikely when the employee has found alternative more highly
compensated employment. He certainly did not need to resign from the union presidency in
order to receive his 401(k) funds.31 In addition and even more probative, Day’s resignation was
followed—by minutes—by the resignation of his son from employment with KSM. Day’s son
quit, “[b]ecause his dad did.” The General Counsel essentially concedes that Day’s son
abandoned employment with his resignation and did not intend to return to KSM. His alleged
backpay period ends with his resignation. However, this act of familial solidarity with his father
makes no sense if Day intended to return to work at KSM.

31Michele Day testified that her husband resigned as local union president under pressure
from his interim employer who threatened him with job loss if he did not. This patently illegal
demand may well have occurred, and Day may well have conveyed it to his wife. Yet, still, the
timing of the resignation, right as the strike at KSM ended, after an employment relationship with
the interim employer that had begun 10 months prior, even before the strike began (R. Exh. 11),
is hard to accept as coincidental. It is hard to imagine that, had Day wanted to remain at KSM,
he would not have resisted this illegal demand in some fashion, or, at least, that there would be
some objective evidence of his motive. I note that no other witness testified as to the reason
Day gave for resigning his union presidency. Presumably his decision to resign as union
president was discussed with others in the Union.
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As discussed herein, I agree with the General Counsel that KSM’s liability for the failure
to reinstate strikers begins when the strike ended, not a week later. However, by the time of
Day’s resignation, October 10, Day and the employees could not have known that
reinstatements of many employees would be unlawfully delayed for months and in some cases
for years. This realization developed over time, and in time, may well have contributed to an
employee’s willingness to resign to obtain access to benefits funds. But not on October 10. I
find that when Day resigned employment at the end of the strike, he intended to permanently
sever his employment relationship with KSM. 32 Accordingly his backpay period is October 5
through 10, 1997.33
ii. Michael Bartelt
Michael Bartelt worked at KSM since 1985 and was working in the welding department
at the commencement of the strike. In October 1997 Bartelt contacted Oechsner over the
phone in an effort to get a loan from his 401(k) funds. Bartelt had outstanding bills and his
home was threatened with foreclosure. Oechsner testified that he inquired as to why Bartelt
sought the funds but that Bartelt refused to tell him.34 Oechsner told Bartelt that in order to get
his 401(k) money he would “have to come in and sign a quit slip.” Bartelt said that “all I wanted
to do was borrow a loan.” Oechsner reiterated “that I should come in, sign a quit slip and I could
get the 401.” Bartelt went to KSM and met with Oechsner on October 14, 1997.
Oechsner had prepared a resignation statement. Bartelt testified, “[w]e sat at the table
and he said, well, here’s your resignation paper. Sign it and then I could get the 401.” Bartelt

32At the hearing, Respondent raised hearsay objections to Michelle Day’s testimony. I took
the evidence and reserved ruling on Respondent’s hearsay objections. I agree with the General
Counsel that much of Michelle Day’s testimony regarding Roger Day’s state of mind is relevant
and an exception to the hearsay rule pursuant to Federal Rule of Evidence 803(3). I assume
without deciding that the hearsay objections should be overruled in their entirety and I have
considered Michelle Day’s testimony entire testimony. Notwithstanding this, in terms of weight I
note that her testimony presented problems that, in fact, validate the Federal Rules of
Evidence’s hesitancy about second-hand testimony. I believe that Michelle Day testified
honestly, to the best of her ability, but there was much she did not know and misstated. She
was unaware that her husband applied to work at Maysteel even before the strike began. She
was uncertain about whether and how long employees at Maysteel had to wait for insurance,
and whether Roger Day took insurance there. I believe that her explanation about Roger Day’s
decision to step down as local union president was inadequate (not by intention but due to the
limits of her knowledge of his decision) and that others could have, but did not, offer more
explanation of that decision.

33Given his interim earnings during this period, my findings result in a very limited total
backpay award for Day. Pursuant to the General Counsel’s unchallenged alternate calculation,
Gordon Sabel’s backpay period is set at October 10, 1997 to April 17, 2001.
34Bartelt testified that he told Oechsner that he needed the money to avoid a foreclosure,
but that Oechsner made no reference to hardship withdrawals. Bartelt’s recollection is at odds
with Oechsner’s conduct with other employees. As I have said, I believe that Oechsner was
quite willing to encourage employees to resign, but his pattern of conduct (for the most part
undisputed) included explaining the hardship withdrawal options to employees who might qualify
and inquiring about the reason they were seeking the money. I accept Oechsner’s recollection
of his conversation with Bartelt because it is consistent with Oechsner’s conduct generally.
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signed the resignation. After he signed it, Bartelt also asked about whether he could get his
vacation pay. “He said no because I signed this piece of paper.”
Bartelt had determined that the 401(k) at his new employer, Super Steel, permitted
loans, so he had Oechsner fill out the distribution forms to reflect his desire to roll over his KSM
401(k) funds to the Super Steel 401(k), thus permitting Bartelt to take a loan only for the amount
of money he needed. Bartelt testified that the only reason he resigned was to obtain the 401(k)
money he needed to avoid a foreclosure. However, later in the evening of the very day he
resigned, Bartelt met with his parents who offered to loan him the money to pay off his bills and
keep the house out of foreclosure. As a result, Bartelt no longer required funds from his 401(k)
and he left his funds in the KSM 401(k) for nearly 4 years before rolling it over into the Super
Steel plan. After learning that his parents were willing to loan him the necessary funds, Bartelt
made no effort to contact KSM to rescind or otherwise withdraw his resignation, or to tell
Oechsner that he suddenly did not need the KSM 401(k) funds. However, according to Bartelt,
“if my parents would have loaned me the money sooner I would have never signed the quit slip
to get it.”
Bartelt had begun working at Super Steel on February 24, 1997, during the strike, and
was earning a higher hourly pay rate than at KSM. He received a 50-cent-per-hour raise in
September. After he took the job at Super Steel he declined further strike benefits, as he felt
that he was contributing less to the strike. He continued to do some picketing until about June
1997. In September 2001 Bartelt came to KSM a final time to turn in forms to rollover his KSM
401(k) funds to the Super Steel 401(k). On those forms he listed his date of termination from
KSM as February 24, 1997, the date he began employment with Super Steel.
The evaluation of Bartelt’s resignation is complicated. I accept that the afternoon that
Bartelt resigned he did it in order to obtain money he needed for financial reasons, and would
not have done it otherwise. He did not approach Oechsner seeking to quit, but rather, seeking a
loan. His resignation was at Oechsner’s repeated suggestion, and Oechsner did not offer him
any alternatives. But just a few hours later, that day, the need for the 401(k) money was
obviated when his parents offered to loan him the funds he needed. By Bartelt’s own admission
(and by his conduct in leaving freely available 401(k) money with KSM for four years) at that
point he did not need the 401(k) funds and the resignation was unnecessary. In evaluating
Bartelt’s intentions it is notable that, having resigned to obtain his 401(k) funds and then finding
out within hours that he did not need the 401(k) funds, that he did not attempt to change course.
It is very possible, of course, that if, the morning after, Bartlett had contacted Oechsner and
asked to rescind the resignation, that Oechsner would have refused. Oechsner’s enthusiasm
for resignations has previously been noted. But the attempt would have been probative. In this
regard, Bartelt is in a category of one. Every other employee who the General Counsel alleges
resigned to obtain funds needed to use the funds, and hence could not attempt to rescind their
resignation without calling into question the receipt of funds. But in Bartelt’s case, there was
nothing to lose by attempting to rescind the resignation as the need to resign for any reason
other than to sever employment disappeared the same day that he resigned. Although Board
precedent requires an employer to seek out former strikers and offer them reinstatement (and
not to presume abandonment), in this instance, one might expect to see some effort to reverse
course by an employee who desires reinstatement. On the other hand, one must not lose sight
of the peculiarity of the legal test the Board has developed. An employee with no interest in
resigning, who only does so to obtain retirement benefits, may well have every desire to return
to employment but believe—in a sentiment that Respondent would likely endorse as a logical
and clear legal standard—that having resigned, he has necessarily abandoned his employment.
He therefore will proceed to act in accordance with that belief. Such an employee, unschooled
in the often unintuitive world of Board precedent might well demonstrate unequivocal intent to
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abandon his employment but only because he believes that a finding that he abandoned his job
necessarily follows from his resignation. That may well be the explanation for Bartelt’s inaction
in the face of his parent’s help and alleviation of his need to have resigned. Of course, it
probably also helped that at the time Bartelt resigned he was working at a steel plant earning
more money than he had at KSM. There is some suggestion of this in Bartelt’s view, expressed
in 2001 when he filled out his 401(k) forms to reflect a termination from employment at KSM of
February 24, 1997, the day he began working for Super Steel during the strike. This is
indicative of his mindset and intent, at least as of the day he signed the forms. But whether
because he wanted to, or believed he had to, if the record was confined to the above evidence,
it might suggest that when Bartelt resigned (at Oechsner’s suggestion) he left KSM behind for
good. However, there is other pertinent evidence.
The General Counsel contends that Bartelt’s continued interest in employment with KSM
after his resignation is indicated by the testimony that he returned to the facility, after he heard
from Malson that KSM vice-president Davis was interested in talking to him about coming back
to work. Bartelt testified that he talked with Davis and agreed to meet Davis at the facility but
that when he showed up, another KSM top manager, “Bill James came walking out and said,
‘We’re not hiring you back. You’re going to have to leave.’” None of Respondent’s witnesses—
neither James who testified, nor Davis, who did not—disputed this incident. However, in conflict
with the General Counsel’s theory, Bartelt insisted—four times, and no matter how the General
Counsel approached the question—that this incident occurred before his October 14, 1997
resignation, that is, “before I met with Oechsner.” This testimony notwithstanding, there is, as
General Counsel contends, reason to believe that Bartelt’s recollection is wrong. Malson
testified that it was the summer of 1998 when Phil Davis approached him and asked him to get
in touch with Bartelt, because KSM was interested in having Bartelt come back for welding.
Malson recalls that the incident occurred after his own April 1998 recall, something he would not
likely confuse, and I credit his testimony which was presented with a unembellished certainty
that was entirely convincing. In addition, this was at a time when Oechsner described the
demand for employees as expanding. Notably, according to the records, by May 1998 Bartelt
was the only welding department former striker who had not resigned or been offered recall.
Thus, it makes senses that Davis would come looking for him at that point. It makes very little
sense that KSM would come looking for Bartelt in the 2 weeks after the strike ended, when
there were 10 other unreinstated welders and KSM’s position was that Bartelt had resigned.
Moreover, upon entering the facility, Bartelt recalls seeing Roger, a shipping employee, whose
surname he thought to be Gutjahr. In fact, Roger Gutjahr is the only “Roger” in shipping and, in
fact, he was reinstated June 15, 1998. In sum, I think the evidence is compelling that Bartelt
was mistaken in his testimony and that Bartelt returned to KSM to meet with Davis in the
summer of 1998. Notably, KSM offered neither James nor Davis to testify on this point (or, as
noted, on the meeting at all). The fact that Davis called Bartelt in the summer of 1998 is less
significant than the fact that Bartelt went there to meet him for the purpose of seeing if he could
be recalled to work. That shows, at a minimum, in an objective fashion, that Bartelt retained an
interest in returning to KSM. Given that the question is “whether the striker has expressed an
unequivocal intention not to return to his former job,” Bartelt’s objective manifestation of interest
in returning to his job 8–10 months after his resignation—a resignation suggested by
Oechsner—renders the evidence suggesting an intent to abandon his job equivocal.
Accordingly, based on all the relevant circumstances, I find that Respondent has not met its
burden of proving that Bartelt abandoned his job with KSM when he resigned in order to enable
him to obtain access to his 401(k).
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iii. The Union and General Counsel’s claims that Graf,
Curtis, Wiedeman, and Kuhlenbeck were discharged
Before considering the status of the four remaining resignees, it is appropriate to discuss
a legal contention that the Union and General Counsel assert is generally applicable to each.
The remaining resignees—Graf, Curtis, Wiedeman, and Kuhlenbeck—resigned weeks or even
months after the strike ended. Contending that the failure to offer them reinstatement earlier
was unlawful, the General Counsel claims on brief that “[w]hen an employer violates Section
8(a)(3) by failing to recall strikers, and this delay causes the strikers to have to resign, such
resignations are ineffective, because they are viewed as constructive discharges.” (GC Br. at
96). More sweepingly, the Union contends that the unlawful failure to reinstate an unfair labor
practice striker is “effectively” a discharge and that “[i]t follows that subsequent resignations do
not extinguish employees’ right to recall.” (Union Br. at 23). The General Counsel and the
Union cite the same cases in support of their contentions: Big Sky Metal Co., 266 NLRB 21
(1983), Roman Iron Works, Inc., 292 NLRB 1292 (1989), and C. K. Smith & Co., Inc., 227 NLRB
1061 (1974), enfd. 569 F.2d 162 (1st Cir. 1977).
I reject these arguments, at least as framed. The Board could, but does not, equate an
unlawful failure to reinstate a striker with a discharge, and more to the point, takes the view that
an unreinstated striker—unlike an unlawfully discharged employee—can abandon employment,
and thereby waive further backpay and reinstatement. Zimmerman Plumbing and Heating Co.,
334 NLRB 586, 588 (2001). Notably, Big Sky Metal concerned an actual, not a constructive
discharge, and a finding that the unlawful discharge in that case led to the discriminatee’s
subsequent decision to resign in order to receive pension payments. Roman Iron Works does
not suggest that an unlawful failure to reinstate a striker is a discharge. Nor does the case
demonstrate that a striker unlawfully denied reinstatement cannot be proven to have abandoned
employment. In C.K. Smith & Co. the Board adopted the view that the resignation of an
unreinstated striker was “similar to a constructive discharge,” but did so in circumstances where
the unreinstated striker’s resignation was found to be “necessary in order to secure other
employment.” In short, while an employer’s unlawful failure to reinstate strikers may provide a
further motive for the resignation that bolsters the case against a finding of abandonment, the
unlawful conduct does not “establish[ ] per se that none of the strikers intended to sever their
employment by resigning to obtain their pension funds.” Alaska Pulp, supra at 525 fn. 17.35
With that said, an unlawful delay in reinstatement is, in many instances, an important
factor in evaluating whether an employee intended to abandon employment when he resigned.
In Alaska Pulp, supra at 524–525, the Board majority found that an unlawful delay in
reinstatement of just 2 weeks left the Board “unable to determine, under the subjective
standards set forth in Augusta Bakery, whether the strikers unequivocally intended to abandon
their prestrike or substantially equivalent positions because the Respondent’s refusal to offer full
and timely reinstatement so tainted the atmosphere in which they resigned.” Alaska Pulp, supra

35I note that the General Counsel does not assert that employees Day or Bartelt, who
resigned a few days after the strike ended, were constructively discharged or motivated to
resign by Respondent’s failure to immediately reinstate them. It is unclear if the Union is
contending that Day and Bartelt were discharged, but if so, I reject the argument for the reasons
I reject it for the other employees. I further note that the compliance specification does not
allege that any of the strikers were discharged (constructively or otherwise). I reject the Union
and the General Counsel’s claim for that reason as well.
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at 525 fn. 17. The Board found that in the absence of such unfair labor practices the employee
“may have made a different choice regarding resignation. We will hold any uncertainty in this
regard against the Respondent, the wrongdoer here.” Alaska Pulp, supra at 525. The Court of
Appeals did not enforce the Board’s order in Alaska Pulp on this point, but it remains Board
precedent. See also, Roman Iron Works, Inc., 292 NLRB at 1301–1302 (application for and
receipt of pension benefits by strikers whom employer had unlawfully failed to reinstate does not
demonstrate intent to abandon employment, as failure to reinstate was “a material factor in
creating the confusion that exists now as to whether they would have returned [earlier]. It is well
settled that where a party's conduct results in an ambiguity, the ambiguity is not to be resolved
in its favor”). The upshot is, that while the unlawful failure to reinstate a striker does not amount
to a discharge, the Board has recognized that it complicates and therefore renders more difficult
an employer’s effort to meet its burden to prove that an unreinstated striker has abandoned his
employment. There is no per se or irrebuttable rule. The specific facts must be examined in
each case. But if the unlawful failure to reinstate makes the Board unable to determine whether
the striker would have made the same choice to resign in the absence of the unfair labor
practices, the uncertainty must be resolved in the discriminatee’s favor.
I now return to consideration of the status of the four remaining resignees.
iv. Robert Graf
Robert Graf worked for KSM since 1984. He was a spot welder at the time the strike
began. During the strike, in January or February of 1997, while in the picket trailer, he heard
Allen Resch telling Roger Day about having to quit to collect his 401(k) account. On another
occasion he heard Anthony Bannenberg in the strike trailer saying that he had to quit to obtain
his 401(k).36 As referenced, supra, the strike ended on October 5 with the Union’s unconditional
offer to return to work. Graf was not recalled. Graf stopped by Oechsner’s office late in the
afternoon of October 28, 1997, and told Oechsner that he needed to quit. Oechsner asked him
why, and Graf told him that he needed his 401(k) funds. When Oechsner asked him what he
needed the money for, Graf would not discuss it with him. Oechsner told him that if there was
no basis to release the money for any hardship reasons Graf would have to write out a quit slip
in order to receive the money. Graf did so. Immediately afterwards, Oechsner provided Graf
with the paperwork for the 401(k). The distribution paperwork was filled out in the office and
Oechsner mailed the papers to Strong. Graf received a check in the mail for approximately
$7,822.67 within a few weeks, in November.
Graf testified that the reason he resigned was because he needed the 401(k) money “to
set my debts straight.” He testified that if he had not needed the money he would not have
resigned from KSM. He testified that it was his belief that had he been called back to work
immediately after the strike he would not have needed to resign because he would have been
making more money at KSM than he was with his interim employer. Although working at
Mayville Engineering, Graf picketed with the union until the strike ended.
Oechsner testified it was his understanding that most of the strikers had found work
“somewhere or other.” He recalls Graf specifically telling him that he had a job and something
to the effect that “it was simply time for him to move on.” When Graf resigned, he was working
at Mayville Engineering making significantly less (about $3.69 less) an hour.

36I overruled Respondent’s hearsay objection to testimony regarding these conversations.
They were not offered, nor relied upon for the truth of the matters asserted. That Graf heard
such statements is relevant to testimony about his subsequent actions with regard to his 401(k).
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In Graf’s case, his unrebutted testimony (and credited) testimony is that he told
Oechsner that he was quitting to obtain his 401(k) funds, which, of course, provides
contemporaneous support for Graf’s assertions that this was his motive. Oechsner’s testimony
that Graf told him, in the course of resigning, something to the effect that “it was simply time for
him to move on,” was also unrebutted, and I credit Oechsner’s assertion that it was said. This
statement supports Respondent’s claim that Graf intended to abandon his employment.
However, I do not think this one solitary statement, made in the course of a meeting with
Oechsner in which Graf expressly explained his purpose for resigning is adequate to conclude
that Respondent has proven that Graf abandoned his employment. The other job that Graf was
“moving on” to paid significantly less than KSM and he had not resigned at anytime during the
strike although already working at this interim employer. He resigned when, and because, he
needed funds from his 401(k).
In addition, with Graf’s resignation on October 28 another factor comes into play that, in
my judgment, would not apply to the resignees previously considered. By October 28, more
than 3 weeks after the end of the strike, Respondent had begun to reinstate a few of the
strikers. Graf was not among those offered reinstatement. As discussed below, the delay in
Graf’s reinstatement was unlawful. This fact alone undercuts the contention that Graf’s right to
reinstatement was affected by his resignation. In Alaska Pulp, supra at 524–525, the Board
majority found that an unlawful delay in reinstatement of just 2 weeks left the Board “unable to
determine, under the subjective standards set forth in Augusta Bakery, whether the strikers
unequivocally intended to abandon their prestrike or substantially equivalent positions because
the Respondent’s refusal to offer full and timely reinstatement so tainted the atmosphere in
which they resigned.” Alaska Pulp, supra at 525 fn. 17. The Board found that in the absence of
such unfair labor practices the employee “may have made a different choice regarding
resignation. We will hold any uncertainty in this regard against the Respondent, the wrongdoer
here.” Alaska Pulp, supra at 525. The court of appeals did not enforce the Board’s order in
Alaska Pulp on this point, but it remains Board precedent. See also, Roman Iron Works, Inc.,
292 NLRB at 1301–1302 (application for and receipt of pension benefits by strikers whom
employer had unlawfully failed to reinstate does not demonstrate intent to abandon
employment, as failure to reinstate was “a material factor in creating the confusion that exists
now as to whether they would have returned [earlier]. It is well settled that where a party's
conduct results in an ambiguity, the ambiguity is not to be resolved in its favor”).
In this case, any uncertainty weighs heavily in Graf’s favor here, as Graf was earning
significantly less at his interim employer and was driven to resign when he did based on
financial circumstances that, objectively, would have been mitigated had he been recalled to
KSM at the conclusion of the strike. Indeed, given that Graf’s credited testimony directly links
his economic circumstances to a lower paid job, and his resignation to his economic
circumstances, I believe that the evidence does not create uncertainty, but affirmative evidence
in support of the General Counsel’s claim that Graf did not intend to abandon employment when
he resigned. Respondent has failed to meet its burden of demonstrating that the resignation
amounted to abandonment.
v. Allen Curtis
Allen Curtis began working for KSM in 1988. At the time of the strike he was working as
a painter. Curtis picketed throughout the strike even while he worked various interim jobs.
When the strike ended Curtis was not recalled and on December he contacted Oechsner to try
to take a loan out on his 401(k). Oechsner told him to come in to see him. Once there,
Oechsner explained that the plan did not permit loans and he explained the three conditions
under which an employee could make withdrawals from the 401(k) plan, which, although Curtis
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did not recall the word hardship being used, were obviously the conditions for a hardship
withdrawal. Curtis did not meet any of these hardship conditions.37 Oechsner then told Curtis
that in order to get the funds he would have to quit. Curtis told him that he did not want to quit,
but Oechsner reiterated that that was the only way to get the 401(k) funds. Curtis finally said he
would have to “quit for financial reasons, but I was quitting under protest.” Curtis wrote out a
termination letter that stated:
To Dave
I Allen Curtis have to terminate my employment at K.S.M. Industries on 12.15.97
because of financial reasons.
Signed Allen M. Curtis
Curtis subsequently brought information to Strong so that the rollover of his 401(k) to his
new employer could be arranged. For reasons unexplained in the record, the rollover
distribution form was not signed by Oechsner until March 5, 1998, and thereafter Curtis took a
loan for the amount he needed, which was $7000, as permitted by the new employer’s plan.
Curtis testified that he did not want to terminate his employment on December 15,
1997, but did so because it was the only way to gain access to his 401(k) funds. His new job
paid less, and instead of doing painting work that “loved” as he had KSM, he did shearing work
at the new employer. He testified that the shearing work was “not ideal” because of his “back
situation.” Curtis testified that if offered recall to KSM on October 5, “I absolutely would have
gone back.”
The undisputed evidence is that Curtis resigned “under protest” in order to obtain
access to his 401(k) account after Oechsner told him that the plan did not permit loans and that
he did not qualify for a hardship withdrawal. Curtis’ letter of resignation reflected that he was
resigning because of “financial reasons.” Indeed, the letter stated that “because of financial
reasons” that Curtis felt that “I have to terminate my employment at K.S.M Industries.”
Objectively, at the time of his resignation Curtis’ interim employment was not satisfactory. It
placed physical demands on him unlike his work at KSM. He did not like the type of work he
was performing, compared to the painting he did for KSM that he “loved.” The interim job did
not pay as well as KSM. There is an unexplained delay in Oechsner’s signing of the distribution
forms for Curtis. The record is unclear whether the delay was the result of inaction by Curtis,
Strong, or Oechsner. In any event, there is no evidence of an unequivocal intent by Curtis not
to return to KSM. To the contrary, the evidence suggests that he resigned only to obtain
needed funds.
Respondent has failed to meet its burden of showing that Curtis abandoned his
employment with KSM at the time he resigned. In addition, as discussed with regard to Graf,
the unlawful delay in Curtis’s reinstatement creates uncertainty as to whether he would have
resigned in the absence of the unlawful failure to reinstate him. This uncertainty must be held

37Oechsner recalled that Curtis told him he needed the funds to get married. Curtis denied
this, and said that telling Oechsner he was getting married was something he mentioned late in
their meeting and was unrelated to his desire for his 401(k) funds. I credit Curtis’ explanation. I
think this was a misunderstanding as opposed to a meaningful contradiction in the testimony.
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against Respondent, and therefore, defeats Respondent’s effort to prove Curtis abandoned his
job by resigning. Alaska Pulp, supra.38
vi. Douglas Wiedeman
Douglas Wiedeman began working at KSM in 1989. At the time of the strike he worked
in stockroom and receiving. After the strike, Wiedeman was not recalled until 2004. In January
1998 Wiedeman, still not recalled to work, contacted Oechsner because he needed his 401(k)
funds.39 At the time Wiedeman was working at Alverno College and earning about $3 dollars
less an hour than he had at KSM. His wife at the time (now his ex-wife) took care of bills for the
household and told him that they needed the 401(k) funds. Wiedeman contacted Oechsner by
phone and Oechsner told him that to get the 401(k) funds he would have to quit. Oechsner did
not ask him what he needed the money for and did not ask him to come in to discuss it.
Wiedeman told him that “I guess I’ll have to quit.” Oechsner said he would need written notice.
Wiedeman’s wife wrote out a termination note dated January 30, 1998, and asked that the
401(k) distribution forms be sent directly to their home. Wiedeman signed it and his wife mailed
it to Oechsner a few days later. Wiedeman testified that he did so because he needed his
401(k). He testified that he would not have resigned if there was another way to get the 401(k)
money. He also testified that if he had been recalled to KSM on October 5, 1997, he would not
have needed to resign. At the time he spoke to Oechsner he did not tell Oechsner that he had
another job. Ultimately, Wiedeman was recalled to KSM in February 2004, as a result of what
Oechsner called “our discussions with the NLRB on compliance.”
The evidence shows that Wiedeman contacted KSM seeking his 401(k) funds and
Oechsner told him he would have to quit to obtain the funds. Wiedeman told Oechsner “I guess
I’ll have to quit.” His conversation with Oechsner corroborates his testimony that he resigned in
order to obtain his 401(k) funds and would not have resigned if he had another way to obtain the
money.40 At the time he spoke with Oechsner he did not tell Oechsner that he had another job.

38Respondent contends (R. Brief at 32–33) that the fact that Curtis rolled over his 401(k) to
his interim employer’s plan, and then took a loan (permitted by the new employer’s plan) in the
amount of funds he needed, proves that Curtis did not have a financial need for the money.
That does not follow. Especially given the tax liabilities incurred by a distribution, in addition to
the benefits of keeping money in a 401(k), it makes perfect sense that an employee would
arrange to take cash receipt of as little as necessary. That is what Curtis did. It does not
undercut his testimony that he needed funds from his 401(k).
39Wiedeman’s account of these conversations was not challenged. I credit his testimony.
40Respondent complains that Wiedeman did not offer details about why he needed money
and therefore did not establish an economic need for the funds. I disagree. The import of his
testimony unmistakably, is that he sought access to the funds due to financial exigencies. That
he did not detail the particular bills he needed to pay is not particularly probative. It is not
surprising that a striking employee earning significantly less from an interim employer would feel
financially pressed. KSM offered no evidence to rebut Wiedeman’s testimony. As noted, I
credit his testimony in this regard. KSM also speculates that Wiedeman may have been eligible
for a hardship withdrawal that could have been taken in lieu of resigning to get his 401(k). But
KSM offers no evidence to support this speculation, and I reject the suggestion that the General
Counsel bears the burden of disproving that an employee had alternatives to resigning to obtain
funds. Resigning was the option Wiedeman knew about, and that Oechsner encouraged.
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He did, but it paid approximately $3 dollars an hour less than what his job at KSM paid. As
noted, I credit Wiedeman’s (undisputed) testimony. Respondent has offered no evidence
demonstrating that Wiedeman intended to abandon his employment when he resigned. Indeed,
the fact that he accepted KSM’s recall when it finally came in 2004 suggests that Wiedeman
had not abandoned his employment. See, Zimmerman Plumbing and Heating Co., 339 NLRB
at 1311. I find that Respondent has not demonstrated that Wiedeman abandoned his
employment when he resigned in January 1998.41
vii. Richard Kuhlenbeck
Richard Kuhlenbeck began employment with KSM in 1978. At the time of the strike he
was working as a tape operator. He was not recalled after the strike ended on October 5. Late
in October he contacted Oechsner to find out if he was allowed to withdraw a portion of his
401(k). Oechsner set up a meeting with him that week in his office. This meeting took place in
November 1997. Kuhlenbeck told Oechsner that “I was going through a divorce at the time, and
my house was in foreclosure pending auction,” and that “I needed the money for a security of
deposit and first month’s rent on a new residence.” Oechsner helped Kuhlenbeck fill out the
forms to make a hardship withdrawal from his 401(k) and Kuhlenbeck withdrew funds from the
401(k), using it for a security deposit and first month’s rent on his new residence.
In November 1998, still not recalled to KSM, Kuhlenbeck contacted Oechsner again to
see if he could make a further withdrawal from his 401(k). They met in Oechsner’s office on
November 16, 1998. Kuhlenbeck told Oechsner about his financial problems, which included
back rent that was due and utility bills. Oechsner told Kuhlenbeck that there were no funds
available for a hardship withdrawal because he had taken out all available funds when took the
hardship distribution in 1997. Oechsner told him that he would not be able to withdraw any
more of the 401(k) unless he terminated his employment. Kuhlenbeck told him that he did not
want to terminate from KSM. However, Kuhlenbeck said that he needed the money and by the
end of the conversation he signed a termination notice typed up by Oechsner while they were in
the meeting. During this meeting, Oechsner also filled out the 401(k) distribution forms with
Kuhlenbeck. Kuhlenbeck subsequently received his 401(k) distribution.
Kuhlenbeck testified that when he went to KSM Industries on November 16, 1998 he did
not want to terminate his employment. He also felt that had he been recalled to work after the
strike he would not have had to resign in November 1998. At that time he was working at
Mayville Engineering for less pay than he had earned at KSM ($3.23 an hour less). He had to
travel a farther distance to go to Mayville than to KSM.

41In addition, as discussed below, by the time of Wiedeman’s resignation, he had been
unlawfully denied reinstatement for 3 months. In the absence of this unlawful conduct by
Respondent, Wiedeman would have been working at KSM in August 1998 and “may have made
a different choice regarding resignation.” Wiedeman thought that would have been the case.
Any doubt on this score must be held “against the Respondent, the wrongdoer here.” Alaska
Pulp, Corp., supra at 524–525. I believe the evidence is sufficient to defeat Respondent’s claim
that Wiedeman intended to abandon his employment when he resigned. However, alternatively,
I would find that the unlawful delay in Wiedeman’s reinstatement creates uncertainty about what
he would have done if he had been reinstated, and this uncertainty must be held against
Respondent.
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On October 6, 2003, Kuhlenbeck accepted recall to KSM. However, on his first day
back he was approached by a supervisor, Robert McKinney, who told him “that I was replacing
one of his better replacement workers and that I had 30 days to know what I was doing . . . .
otherwise he was going to do whatever he could to fire me.” After that conversation Kuhlenbeck
approached a former employer, General Metal Works, and asked if they would allow him to
return to their employ. He was told he could and did, leaving KSM.42
Respondent has failed to prove that Kuhlenbeck unequivocally intended not to return to
his job at KSM when he resigned. Kuhlenbeck went to Oechsner in November 1998 seeking
additional funds from his 401(k). He was not seeking to quit. Indeed, Kuhlenbeck told
Oechsner he did not want to quit, but that he needed the money. This corroborates
Kuhlenbeck’s testimony at trial regarding the motives for his resignation. Generally, the
evidence does not show an intent not to return to employment at KSM. The interim employment
that Kuhlenbeck obtained paid significantly less than the KSM job, and required a much farther
commute (38 miles each way as opposed to 1 mile to KSM). And, of course, it is also significant
to the question of whether Kuhlenbeck intended not to return to his job that, in 2003 when he
was recalled to KSM, Kuhlenbeck accepted the recall. This strongly supports the view that he
had not abandoned his employment when he resigned in 1998 for financial reasons. Of course,
McKinney’s threat to fire Kuhlenbeck his first day back caused him to reconsider and leave KSM
for good, but this does not (in any way) demonstrate that Kuhlenbeck did not return in good
faith, or that he had abandoned his job in 1998. In short, the evidence suggests that
Kuhlenbeck did not intend to abandon his job when he resigned for financial reasons. This is
the opposite of Respondent burden.43
c. Other defenses to the resignees
In addition to its contention that the resignees abandoned employment, KSM expends
significant effort advancing two other, more generalized defenses to paying these individuals
backpay. First, Respondent reasserts the substance of its pretrial motion to dismiss, contending
that because, as a matter of federal law, regulation, and the 401(k) plan, receipt of their 401(k)
funds required their cessation of employment with KSM, the Board may not require KSM to
reinstate the resignees or pay them backpay for any period after the resignation. Second,

42I found Kuhlenbeck to be a creditable witness. I have credited his account of events.
Oechsner’s account, which does not contradict Kuhlenbeck’s, but adds a few details, is also
credited, as reflected in my findings in the text. I note that McKinney did not testify.
43As with the other discriminatees resigning for financial reasons after unlawfully being
denied reinstatement, the delay may have added to the pressures on Kuhlenbeck to resign. In
this case, KSM concedes, that by November 1998, Kuhlenbeck’s reinstatement had been
unlawfully delayed for over 1 year, with no hint of when recall would be offered. In the absence
of this unlawful delay, Kuhlenbeck “may have made a different choice regarding resignation”
and any uncertainty on this score is held “against the Respondent, the wrongdoer here.” Alaska
Pulp, Corp., supra at 524–525. Kuhlenbeck, for one, testified that he would not have resigned if
he had been reinstated after the strike. I believe the evidence is sufficient to defeat KSM’s claim
that Kuhlenbeck intended to abandon his employment when he resigned. However,
alternatively, I would find that the unlawful delay in Kuhlenbeck’s reinstatement creates
uncertainty as to whether Kuhlenbeck would have resigned in the absence of the unlawful
failure to reinstate him and that this uncertainty must be held against Respondent, and
therefore, defeats Respondent’s effort to prove Kuhlenbeck abandoned his job by resigning.
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Respondent contends that even if the resignees are found to be eligible for reinstatement, it is
inequitable to impose backpay liability on KSM for relying on the employees’ resignations.
i. Respondent’s reasserted motion to dismiss
KSM attempted to eliminate the issue regarding backpay and reinstatement for the
“401(k)” resignees prior to the hearing with a pretrial motion seeking to dismiss the amended
compliance specification with regard to the five discriminatees who tendered resignations prior
to the end of the strike (or in one case after the strike but before the General Counsel alleges
they should have been reinstated) and to limit the backpay period with regard to five others who
tendered resignations after the strike was called off and after the General Counsel claims they
should have been reinstated. In its pretrial motion the Respondent contended that, as a matter
of law, the employees’ who received 401(k) funds upon their resignation must be found to have
to have severed their employment and could not be eligible for backpay or reinstatement.
Respondent contended that pursuant to the terms of the expired labor agreement, pursuant to
the terms of the 401(k) plan, and pursuant to the terms of federal law and regulations governing
such plans, the only way for the employees to receive their 401(k) money was to resign, and
therefore, reasons the Respondent, as these employees received their 401(k) funds, they must
have intended to sever and not return to their employment. According to the KSM, if that is not
the case and the Board orders reinstatement and backpay for such employees (for any period
after the resignation) the Board is requiring the Respondent to violate the terms of the 401(k)
plan, the Board is amending the terms and conditions of employment, forcing Respondent to
violate its fiduciary obligations under ERISA, and imperiling the tax status of the plan by forcing
Respondent to violate federal regulations governing the taxability of 401(k) plans.
At the commencement of the trial in this case, I rejected Respondent’s motion, as it is
clear that Board precedent on this issue requires development of record evidence with regard to
the circumstances surrounding the resignations. However, I invited Respondent to renew its
argument in its post-trial brief. Respondent has done so, in a recapitulation of its motion with
added alarums regarding the “patent violation of the law,” and “legal impossibility” represented
by the General Counsel’s position. However, I reaffirm my rejection of this argument. Indeed, I
think Respondent’s contention is irrelevant to the Board’s precedents, and specious at core.
My view reflects the fact that the premise of the Board’s case law in this area is the
finding, or at least the assumption, that the employee received funds, the receipt of which
required a resignation. A valid resignation is the starting point of the Board’s analysis. Indeed,
in Augusta Bakery, the Board rejected the precise argument advanced by KSM here—adopting
the judge’s conclusion that the employer violated the Act by denying the employees
reinstatement notwithstanding the argument pressed by the employer “that as pension benefits
are payable only when an employee ceases work, the Respondent lawfully denied them
reinstatement because they had abandoned their employment.” 298 NLRB at 58. There is no
issue, as KSM contends, that the resignations were “fictitious” or a “sham” for any purpose,
including for purposes of meeting the severance requirements for distribution under the plan,
and as required for the plan to maintain preferential tax status under the Internal Revenue Code
and Treasury Regulations. As in Augusta Bakery, Rose Printing, and all other cases
considering this issue, there is no dispute about the fact that the employees resigned, and
therefore (and only therefore) were entitled to the retirement, 401(k), or other benefits funds that
they received. That is the case here as well: General Counsel not only does not dispute that
these employees resigned, but affirmatively pleads it. The Board’s concern is not with the
veracity of the resignation, but with the circumstances surrounding it. The ultimate issue is
whether, apart from the resignations, the employer has shown that the employee had “an
unequivocal intention not to return to his former job.” Alaska Pulp, supra. The Board’s
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precedent is clear that in order for KSM to demonstrate a strikers’ abandonment of employment,
it must show something other than a resignation. If the employer fails to meet its burden then
the resignation will not obviate the employer’s duty to offer the striker reinstatement and pay
backpay for the period that the striker was unlawfully denied the right to reinstatement. In that
case, the fact that an employer is ordered to reinstate an employee who was paid retirement
benefits is no more a violation of the plan than where a distribution was made after the illegal
discharge of an employee. The fact that the employer paid such benefits would not hinder the
ability of the Board, or a court to order the reinstatement and backpay for the illegally
discharged employee.44
In essence, Respondent’s contention is no more involved than an effort to pick concepts
and terminology from one legal regime and apply them out of context in another different legal
regime in an effort to thwart the Board’s best sense of meaningful labor policy. Thus, while an
employee who resigns and takes a distribution from a tax qualified 401(k) plan may well “cease[
] to be an employee of the employer” for purposes of the Treasury Regulations governing the
tax status of 401(k) plans,45 the Internal Revenue Code’s views on taxability of 401(k) plans
does not particularly bear on, much less preclude, the Board’s view that for purposes of federal
labor policy an employee who resigns and takes 401(k) distribution remains an “employee” of
the employer.46 In cases in which the Board considers the resigned employee to remain an
employee under the Act, the Board can, should, and has recognized and considered that
employees have resigned precisely so that they can be treated as ex-employees for purposes of
the rules surrounding the payment of pensions or 401(k) benefits. But nothing attendant to that
compels the Board to ignore the important considerations of federal labor policy that have led
the Board to recognize that a resignation by a striker for the purpose of obtaining fringe benefits
is not, without more, proof of abandonment of employment.
Notably, 401(k) plans typically, and this one too, provide for an employee’s
reemployment and continued participation in the plan. See, Article 6.4(g) of the plan. KSM
points to nothing in ERISA that suggests that KSM would violate any fiduciary duty if it permitted

44I note that for purposes of assessing the Board’s remedial powers, or, for that matter, of
assessing a violation of a benefits plan and relevant employee welfare law and regulations,
there is no difference between an employee who resigns in the face of unlawful employer action
and one who resigns during a strike. There may be an equitable difference between the
situations that could cause the Board to make different policy choices in each situation, but that
is not Respondent’s contention. Respondent’s contention is that the Board flouts employee
health and welfare law and regulations, and plan documents by ordering reinstatement of a
retired or resigned employee. In that regard there is no distinction between the Board’s
exercise of power to reinstate a discriminatee who is the victim of an employer’s unlawful refusal
to reinstate the employee who resigns to obtain 401(k) money, and the exercise of its power to
reinstate a discriminatee who received a 401(k) distribution after being unlawfully discharged.
4526 C.F.R. § 1.401(k)-(d)(2).
46Similarly, the IRS’s determination that employees are independent contractors, or that
employees are paid and file federal income taxes as independent contractors is not
determinative of their status as “employees” under the Act. Roadway Package Systems, 326
NLRB 842, 854 fn. 46 (1998); Southern Cab Corp., 159 NLRB 248 fn. 4 (1966). I note that
under KSM’s view, the Board’s finding that the drivers in Roadway Package Systems or
Southern Cab Corp. were employees could subject the drivers to prosecution by the IRS for
filing false tax returns asserting they were independent contractors.
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the reinstatement of an employee (particularly pursuant to the order of a federal agency,
enforced by a court) who, pursuant to the plan, had severed employment and taken a
distribution. Similarly, KSM points to nothing in the Internal Revenue Code Treasury regulations
that suggests that the reinstatement of a former employee, as the Treasury regulations apply
that term, would threaten the tax status of the plan. To the contrary, the reemployment and
continued participation in a plan is affirmatively permitted by this plan and the case law.

It is also notable that in all its pages of briefing on the subject, Respondent does not cite
a single Board case, much less a single federal court case that offers the slightest support for its
argument. Thus, Respondent’s contention carries the added suspicion of novelty, many years
after these issues have been mooted in repeated Board cases ordering reinstatement and
backpay for employees who resigned during a strike in order to receive benefits requiring such
resignation or retirement. Thus, the argument rises, and falls, entirely on the logic of the
argument and, in my view, the argument is not sound, for the reasons I have described.
ii. Respondent’s equitable defense
Respondent contends that it was entitled to rely on the employees’ resignations and
thus, even if the resignees are to be reinstated, KSM should not be liable for backpay beyond
the date of resignation. KSM asserts that when faced with a resignation by an employee, there
was no way for it to know that the General Counsel would subsequently contend that the
employee did not intend to abandon employment. Respondent points out that there were
numerous employees who resigned, and for whom the General Counsel has not contended
further backpay or reinstatement was due. Those resignations, in other words, did represent
the abandonment of employment by the resigning employees. In essence, KSM asserts that it
is unfair to hold it liable for additional backpay when it accepted and relied upon the
resignations, and had no way to distinguish resignations that were part of an abandonment of
employment from those that were not.
Respondent’s contention is answered by the fact that for many years the Board has
made clear that in dealing with unrecalled strikers an employer may not presume that a
resigning striker intended to abandon employment. As discussed above, Board precedent is
clear that the burden is on the employer to demonstrate an employee’s unequivocal intent to
abandon employment and that a resignation is not adequate. In a strike recall situation, an
employer acts at its peril if it assumes that the resignation indicates abandonment of
employment. The reasons for this are set out in the Board’s case law, discussed supra, and
undoubtedly reflect federal labor policy’s recognition that the right to strike involves a predictable
economic burden on employees that can lead an employee to resign in order to obtain available
funds, even when the employee does not intend to abandon employment.
In this regard, the employer’s uncertainty with regard to resignations is consistent with
the fact that an employer should not presume from an employee’s acceptance of interim
employment that the employee has abandoned his employment. More generally, an employer
will not know until it offers recall whether an individual striker intends to return. The burden on
the employer is not great. It simply needs to offer reinstatement to former strikers—
notwithstanding what it may guess, have heard, contemplate, or hope about a striker’s
intentions with regard to returning to employment. When it fails to do so, and takes the position
that the employee has abandoned employment, it needs unequivocal evidence to prove it, and a
resignation is not enough under well settled law. The point, of course, is that the Board has
determined that the employer, and not the striker, must bear the risk when the employer
chooses not to heed the Board’s warnings to presume, until it can prove otherwise, that a striker
will choose to return to employment at the completion of the strike.
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Equitable considerations do not weigh in favor of Respondent. Indeed, the inequity in
Board law in this area is more likely to weigh on employees rather than employers. As I
discussed, above, there may be resignees on whose behalf the General Counsel did not seek
backpay or reinstatement, but who were resigning because they needed their 401(k) funds.
These may be employee who, believing (as Respondent contends the law should be) that
having resigned to obtain the money they had no choice but to abandon employment at KSM,
acted unequivocally in accordance with that belief and did, therefore, regardless of their true
unstated desire to return to work at KSM, by all appearances abandon their jobs at KSM. This
is the other side of the coin of Respondent’s “equity” argument, and I have no doubt that in
some instances resigning strikers suffer on account of their ignorance of Board legal doctrines.
Nevertheless, employees in that situation will often be denied backpay and reinstatement.
KSM cites a 1968 case, Mississippi Steel Corp., 169 NLRB 647, 663, enfd. in part, 405
F.2d 1373 (D.C. Cir. 1968) for the proposition that “[f]rom Respondent’s standpoint, it did have a
right to rely on the resignations in order to fill the vacancies created.” In that case the
Administrative Law Judge, in a finding adopted by the Board, determined “[a]s a balance of the
equities,” that the resigning strikers must be reinstated but that backpay was tolled as of the
resignation. In Alaska Pulp, supra at 525 fn. 17, the Board avoided addressing the continued
viability of this dormant doctrine, noting that it “sometimes tolls a respondent’s backpay liability if
it finds that the respondent relied in good faith on a striker’s resignation,” but found such tolling
inappropriate because “Respondent’s unfair labor practices may have contributed to the strikers’
willingness to resign.” As discussed above, in view of the Board’s subsequent development of
the law, I do not believe that reliance on Mississippi Steel, or the strikers’ resignations, justifies
tolling backpay. An employer presumes abandonment at its peril. But even if this tolling
doctrine lives at all, it should not apply here. As to four of ten resigning strikers, it is
inappropriate for the same reasons relied upon by the Board in Alaska Pulp: “Respondent’s
unfair labor practices may have contributed to the strikers’ willingness to resign.” As to the
remaining resigning employees, the record leaves no doubt that KSM played an active role in
encouraging and facilitating striker resignations. The resignations were not visited upon an
indifferent, unsuspecting employer, which then had to adapt to the loss of these employees.
KSM was complicit in securing resignations without any concern or interest in whether the
employees actually intended to abandon employment. Having encouraged, facilitated, and
suggested the resignations, Respondent is not in a position to claim that equity demands that it
can rely on the resignations to toll backpay at great cost to the discriminatees.47

47I note that in mounting its argument, Respondent continues to refer to the resignations as
a “ruse” and “not authentic.” The suggestion, a spillover from the argument, rejected above,
regarding employees’ efforts to resign to obtain their 401(k) funds, suggests that KSM was
tricked or treated unfairly by the strikers who resigned, and by the General Counsel who seeks
backpay and reinstatement on their behalf. KSM’s view is unwarranted. Respondent need only
have cursorily reviewed longstanding Board law to know that it should not have assumed that
resignees abandoned employment. In this regard, KSM’s assertion that the backpay obligation
represented by resignees is 44 percent of the total it is alleged to owe and amounts to
$188,438.59 is disingenuous. As KSM has pointed out (R. Brief at 2), “Respondent’s case is
not a zero-sum game,” and backpay denied a resignee will often be owed to another
discriminatee who should have been recalled in his place. Indeed, according to Respondent’s
counsel, “[i]n a number of instances, as a result of mitigation efforts, Respondent would actually
be better off by allowing a ‘401(k) quit’ individual who fully mitigated, to stay in the case and to
occupy a spot that should be held by another individual whose mitigation efforts were less
successful.”
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2. Rodriguez’s response to KSM’s questionnaire
as evidence of abandonment of employment
On October 16, 1997, after the Union’s October 5 offer to return, KSM sent a letter to
each striker that it considered still employed, stating that “it is necessary to communicate with
you concerning your personal intention to be considered for recall to KSM Industries as
positions for which you are qualified become available.” The letter asked employees to
complete the following:
Do you wish to be considered for future recall to KSM Industries as positions for
which you are qualified become available? (Place an “X” indicating your choice)
Yes ___ No ___
The letter provided a place for the striker to sign and date his response, under a legend that
read “I understand that a “NO” choice voluntarily terminates my employment with KSM
Industries.”
Jesus Rodriguez was a general factory striker who received the KSM inquiry described
above. Rodriguez signed and returned the form, marking “No,” in response to the question
asking whether he wished to be considered for future recall to KSM. Respondent points out that
at the time Rodriguez signed the form he was working at another employer, Milsco, which was
closer to his home than KSM, and covered by a collective-bargaining agreement.48 Rodriguez
did not endorse KSM counsel’s suggestion that he answered “no” on the questionnaire because
the Milsco job was “a better situation” for him. However, Rodriguez agreed that “[a]t least back
in October 1997 [he] preferred to stay at Milsco and work.”
Respondent contends that Rodriguez’s negative response to KSM’s inquiry terminated
his employment. This is incorrect under Board precedent. Respondent’s inquiry clearly was not
an offer of employment,49 and Respondent does not so contend. “[Until the discriminatee has
received an unconditional offer from his employer he is incapable of refusing reemployment.”
Montgomery County MH/MR Emergency Services, 239 NLRB at 827; REA Trucking Co., Inc.,
176 NLRB 520, 526 (1969), enfd. 439 F.2d 1065, 1066 (9th Cir. 1971). Alaska Pulp Corp., 326
NLRB at 541 (“Respondent argues that [unreinstated striker] Bartels had been unwilling to
participate in an apprenticeship program to acquire multi-craft skills, thereby rendering himself
ineligible for the only maintenance position in which he could have been employed. Yet,
regardless of what Bartels may have said at that time, it was not said in response to an offer of
reinstatement”). A negative response to an invalid offer is of no consequence. CleanSoils, Inc.,
317 NLRB 99, 110 (1995). Respondent’s contention is that it is clear from Rodriguez’ statement
at trial, combined with the response to KSM’s recall inquiry, that, in October 1997, Rodriguez
had abandoned employment. However, the Board has rejected this contention. In
L'Ermitage Hotel, 293 NLRB at 927, a discriminatee who failed to respond to a letter inquiring
about his interest in reinstatement testified that he did not do so because,

48Respondent contends on brief that Rodriguez’ new job was a “better job” and that “Mr.
Rodriguez was more satisfied with his position at Milsco than he had been with his position at
KSM.” (R. Br. at 42). This was not established at the hearing.
49See, e.g., L'Ermitage Hotel, 293 NLRB 924 (1989), enfd. 917 F.2d 62 (D.C. Cir. 1990);
Montgomery County MH/MR Emergency Services, 239 NLRB 821 (1978), enfd. without op. 612
F.2d 573 (3d Cir. 1979).
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when he received the letter he was working for another employer and believed
he was making more money than he could have made in Respondent's employ.
Therefore he did not respond to the letter. This admission, according to
Respondent, tolls its backpay liability even if the letter was deficient.
Respondent's contention must be rejected in light of the Board's recent decision
in Consolidated Freightways, 290 NLRB [771] 1988 wherein the Board held that
"an employer must first extend a facially valid offer of reinstatement before we
examine a discriminatee's reasons for declining the offer."
Given KSM’s failure to offer reinstatement to Rodriguez in October 1997, “it is unnecessary to
speculate on what [Rodriguez’s] response would have been had Respondent unconditionally
offered to reinstate him” in October 1997. Montgomery County, supra. Rodriguez did not
abandon employment or his right to reinstatement when he answered KSM’s questionnaire.50

B. The reinstatement process
In NLRB v. Fleetwood Trailer, 389 U.S. 375 (1967), the Supreme Court explained that,
If, after conclusion of the strike, the employer refuses to reinstate striking
employees, the effect is to discourage employees from exercising their rights to
organize and to strike guaranteed by §§ 7 and 13 of the Act. Under §§ 8 (a)(1)
and (3) it is an unfair labor practice to interfere with the exercise of these rights . .
. . without reference to intent.
389 U.S. at 378, 380 (citations omitted).
Once the striker makes an unconditional offer to return to work, “the Respondent [is]
under a duty to timely reinstate him to his prestrike position or, if that position no longer exist[s],
to a substantially equivalent position.” T.E. Briggs Construction Co., Inc., 349 NLRB No. 61 slip
op at 2 (2007).
Notwithstanding this, an employer can mitigate its liability or rebut the finding of an unfair
labor practice entirely by demonstrating that its refusal to reinstate strikers was due to
“legitimate and substantial business justifications.” NLRB v. Great Dane Trailers, 388 U.S. 26,
34 (1967). “The burden of proving justification is on the employer.” Fleetwood, supra.
If the General Counsel has not proven that the strikers are unfair labor practice strikers,
one substantial and legitimate business justification that an employer can rely upon for failing to
reinstate strikers is proof by the employer that the strikers have been permanently replaced. Id.
at 379 & fn.5; Chicago Tribune Co., 304 NLRB 259, 261 (1991) (“Contrary to the Respondent,
we find that it must prove the contested fact of permanent replacement as part of its affirmative
burden of proving substantial and legitimate justification for failing to hire former economic
strikers upon receipt of their unconditional offer to return to work”). This justification is unavailing
in the case of unfair labor practice strikers, because the employer’s duty to reinstate includes

50Respondent ultimately reinstated Rodriguez but, apparently, treated him as a new hire. I
note that Respondent does not separately challenge the General Counsel’s contention that
Rodriguez, who was working at KSM at the time of the hearing, never had his vacation benefits
and seniority reinstated. Given that I have found that Rodriguez did not sever his employment
with KSM, an order to restore his seniority and vacation benefits will be part of the remedy.
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the obligation to displace replacements hired to fill the unfair labor practice strikers’ positions.
Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956). Where, as here, an economic strike
converts to an unfair labor practice strike, permanent replacement justifies the refusal to
reinstate a striker only to the extent the striker was permanently replaced prior to the conversion
of the strike. KSM Industries, Inc., 336 NLRB at 134 fn. 4. Notably, “[t]he reinstatement rights
of an unfair labor practice striker and an economic striker are the same if the employee has not
been permanently replaced.” T.E. Briggs Construction Co., Inc., supra, slip op at 2.
Another “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.” Zimmerman Plumbing and Heating Co., Inc., 334 NLRB 586, 588 (2001).
This requires a showing by the employer that there is not work available because of reductions
in business or the elimination of a striker’s job based on “substantial and bona fide reasons
other than considerations relating to labor relations.” Fleetwood Trailer, supra at 378 fn. 4, 379–
380 (proof by General Counsel that jobs of strikers are still available “is not essential to
establish an unfair labor practice. It relates to justification, and the burden of proof is on the
employer”); Refuse Compactor Services, Inc., 311 NLRB 12 fn. 4 (1993), enfd. without op. 57
F.3d 1077 (9th Cir. 1995); Radio Electric Service Co., 278 NLRB 531, 532 (1986), enfd. without
op. 826 F.2d 1056 (3d Cir. 1987); Burns Motor Freight, 250 NLRB 276, 279 (1980).
1. The General Counsel’s formula
The General Counsel’s formula for calculating recall and backpay eligibility is based,
first, on the immediate slotting, as of October 5, 1997, of strikers into positions held by
“unprotected” replacements. Under the General Counsel’s formula, the strikers entitled to
reinstatement to these positions were the most senior strikers within each job classification in
which unprotected replacement workers remained. Notably, based on a review of R. Exh. 39 (a
chart created by Respondent to show its view of the individuals entitled to backpay and
reinstatement) KSM does not dispute—indeed, it admits—that at strike’s end the senior strikers
within each classification should have been reinstated to positions occupied by the unprotected
replacements.
Under the General Counsel’s compliance formula, after assigning strikers to fill
unprotected replacements’ positions, each time a working employee, whether a protected
replacement worker or recalled striker, terminated their employment, or when a striker offered
recall declined the offer, an additional striker—the senior unrecalled striker in the relevant
classification—should have been recalled and backpay began accruing for that striker.
Putting aside, for the now, the issue of the General Counsel’s reliance on seniority to
determine who should have been entitled to vacancies (a matter I take up below), the General
Counsel’s presumptions that the departure of a protected replacement or recalled striker, and
the unaccepted offer of employment by a recalled striker, showed an open position for a new
unrecalled striker, is a reasonable formula. The proposition that an employee left work to be
performed when he quit, and that the employer offered recall to an employee because there
was work for that employee, are logical and presumptively true. The formula, in this regard,
satisfies the General Counsel’s burden, and the burden shifts to Respondent to establish facts
that would negate or mitigate its liability. Thus, it is Respondent’s burden to demonstrate that
work was not available in the classification where an employee has just resigned or where
Respondent has offered a position to an employee who declined recall. This could be because
of an abrupt halt in work, or because the departing employee was laid off for lack of work, or any
number of other circumstances. But it is Respondent’s burden to show. No argument to
counter the General Counsel’s position is offered on brief and no evidence was proffered at trial
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to counter this logical presumption. I reject the contention that where no one was immediately
hired to replace a departing employee, the Respondent has proven that there was no position
for an unrecalled striker. This ignores the ability of an employer to avoid recalling strikers to
perform available work, at least for a period of time, by not undertaking available work,
stretching its existing workforce, and shifting unit work to supervisors (a matter discussed
below). Respondent’s duty was to reinstate the unfair labor practice strikers to their former
position or to one substantially equivalent, and not, as Oechsner put it, to “just ke[ep] muddling
through it” without unreinstated strikers. I accept the General Counsel’s formula in this regard.
A related challenge to the General Counsel’s reinstatement formula is Respondent’s
department-specific challenges to the General Counsel’s reinstatement allegations. The
General Counsel’s compliance specification seeks backpay for a number of employees in
specific departments in which Respondent asserts it did not have available work at the
conclusion of the strike. Specifically, to the extent that Respondent’s diminished need to recall
strikers is based on supervisors performing bargaining unit work, or the assumption of strikers’
job duties by other bargaining unit employees (replacements or recalled strikers), the General
Counsel rejects Respondent’s position that work was unavailable for the unrecalled strikers. As
discussed below the General Counsel disputes that Respondent has demonstrated a
substantial and legitimate justification for failing to reinstate strikers where the failure is
attributable to any of these reasons. 51
2. Departmental and individual reinstatement issues
a. Shearing
Shearing involves the cutting and refabrication of the metal used in KSM’s production.
The introduction in the spring of 1996 of a computerized laser system, called the Mazak, to cut
and fabricate the metal dramatically reduced the amount of shearing work required. Shortly
after the introduction of the Mazak, a “tower” that attached to the Mazak and automatically
loaded the steel from the laser was introduced. Prior to the introduction of the laser, KSM
employed 6-7 shear operators on a total of two shifts. At the commencement of the strike in
1997, there were 4 shear operators, with one, Roger Stern, spending approximately 30–40
percent of his time operating the Mazak laser. A second Mazak laser was installed in 1999, and
a third in 2006. Currently, one individual, Stern, performs shearing work on a regular basis.
After the strike, Respondent did not regularly employ any strike replacements in the
shear position. There was, however, shearing work performed. Instead of recalling a shearing
operator employee, Respondent recalled a general factory employee and striker, Laverne Jung,

51At trial, some evidence, and much argument, were offered to show that an increase in
contracting out limited the availability of jobs. However, on brief, the General Counsel does not
pursue that argument with regard to KSM’s failure to recall employees. The Union raises it
generally, but without tying it to any unrecalled striker. Employee Bojar offered some testimony
about the subcontracting of items after the strike that were not subcontracted before the strike,
but his anecdotal account does not show much, if anything, about KSM’s overall subcontracting
practices. While it is KSM’s burden to prove that work was unavailable for unrecalled strikers, it
is not its burden to prove that it did not increase contracting out, at least until evidence is
presented that it did. I find the evidence does not establish that subcontracting increased during
the strike to an extent that it affected the recall of strikers. For that reason, I do not reach the
issue of whether KSM’s reinstatement obligations conflict with such an increase.

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on December 1, 1997, and assigned him to operate the shear. Before the strike, Jung had
occasionally operated the shear (the ability to do shearing work is covered by the general
factory job description) but his testimony demonstrates that this was seldom part of his work.
After the strike, he performed primarily shear work until his retirement June 11,1999.
Stern was recalled to the shear department in February 1999. He soon realized that the
bargaining unit work he had performed on the Mazak laser before the strike had been taken
over by supervisors. Before the strike, supervisors had been responsible for programming the
laser to make the desired cuts on the metal, and had directed bargaining unit employees with
regard to the materials and sizes needed to be loaded into the tower. They occasionally did
other work, such as unloading steel from the Mazak, if bargaining unit employees were on break
or otherwise unavailable, and they helped to clean and focus the specialized lenses on the
laser. However, the bargaining unit employees would then download the program, load the
tower, change the tanks, clean under the machine, place order papers on the finished material,
and “just generally ran . . . the machine.” This work comprised a significant amount of Stern’s
work prior to the strike. After the strike, Stern “wasn’t to do anything with the laser.” He asked
his supervisor, Bob McKinney about this, and McKinney told him “management basically is
running the laser now.”52
In sum, traditional shearing work, which had begun declining before the strike, continued
to decline after that strike, even after orders picked up. However, laser work, which before the
strike had been part of the shearer operator’s work, increased after the strike to the extent that
additional lasers were added. The consequence of turning this work over to supervisors was
that work opportunities were limited for unrecalled shear operators.
The General Counsel’s position, as set forth on brief, and consistent with the
calculations in the compliance specification, is that shear operator employees should have been
recalled to perform the shear department’s work. This includes the laser operations work that,
prior to the strike consumed up to 40 percent of bargaining unit employee Stern’s time, as well
as shearing work that general factory Jung was utilized to perform. Respondent disputes any
obligation to preserve the prestrike bargaining unit work for shear department employees.
In assessing available work for returning strikers, the Board considers nonbargaining unit
employees and supervisors in particular, to be “in effect, striker replacements.” Radio Electric
Service Co., 278 NLRB at 532 (“it is clear that the work previously performed by the strikers has
not been abolished because, by the Respondent’s own admission, that work has been
reassigned to, and is presently being performed by, nonbargaining unit employees”) Super
Glass Corp., 314 NLRB 596 fn. 1 (1994) (“In adopting the judge's finding that the Respondent
unlawfully refused to reinstate five striking employees, we reject, as did the judge, the
Respondent's contention that it had no work for these five strikers. The evidence indicates that
the Respondent utilized several individuals, some of who were already on the Respondent's

52I credit this undisputed testimony, including the admission by McKinney, as well as the
corroboration by other employee witnesses of the fact that after the strike supervisors took over
operation of the Mazak from bargaining unit employees. Respondent contention on brief to the
contrary is untenable. That management played a limited role in the laser operation prior to the
strike is not inconsistent with the fact that the bargaining unit’s well established role in operating
the laser was eliminated after the strike. Notably, the prior terms and conditions of employment,
as set forth in the expired labor agreement that Respondent generally comports to be complying
with, significantly limits the instances in which nonbargaining unit employees can perform
bargaining unit work. See, Article 1, Section 7 of 1994 labor agreement.
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payroll, to perform unit work during the strike as well as after the Respondent received the
Union's unconditional offer to return to work. . . . Regardless of whether these individuals were
previously working for the Respondent in management or other nonunit positions, or were newly
hired, they were clearly replacements performing unit work at a time when the Respondent was
obligated to offer that unit work to the unfair labor practice strikers seeking reinstatement”).
Respondent may not use nonunit employees to absorb unit work to the prejudice of unrecalled
unfair labor practice strikers.53
The issue is somewhat different with regard to Respondent’s decision to recall general
factory employee Jung on December 1, 1997, nearly 2 months after the strike ended, and
assign him to perform shearing work. There is no issue here of available work being absorbed
by nonunit employees or unprotected replacements. The objection is to Jung’s recall to
shearing duties on an essentially full-time basis, at a time when the shearing position was
vacant and shearing operators were awaiting recall. Respondent contends it was free to make
such an assignment, prestrike under the terms of the labor agreement, and poststrike in
accordance with the terms and conditions of the expired agreement. That may be, certainly
there is no evidence, either at trial, or at the time, that the Union believed that this was wrong. If
Respondent were wrong an unfair labor practice allegation could have been pursued and it
would have been meritorious.54
Be that as it may, Respondent’s contention that it was acting within its contractual—or
more precisely, as the contract had expired, acting without committing an unlawful unilateral
change—misses the point. Respondent’s obligation under the longstanding case law, and
specifically under the Board’s order in this case, was to offer reinstatement to these unfair labor
practice strikers “to their former positions or, if those positions no longer exist, to substantially
equivalent positions.” KSM, supra at 136. The phrasing of the order is not superfluous, and not
arbitrary. It reflects the Board’s longstanding view that it is “[o]ur duty is to ensure that strikers
who have unconditionally offered to return to work are to be treated the same as they would
have been had they not withheld their service.” Rose Printing Co., 304 NLRB at 1078. For this
reason “the touchstone for determining reinstatement rights is ascertaining whether the job is
the same as, or substantially equivalent to, the prestrike job.” Id. at 1077; Towne Ford, Inc.,
327 NLRB 193, 195 (1998) (issue is “[h]ad the employees not gone on strike, they would have
been filling those positions”), enfd. 238 F.3d 429 (9th Cir. 2000). If it is, the striker should have
it. By the same token an employer is not required to reinstate a striker to any vacant position,
even one for which the striker is qualified. Rose Printing, supra. But rather, only to the striker’s
prestrike or substantially equivalent position. T.E. Briggs, supra at slip op. 2 fn. 6 (“[t]o clarify,
strikers are not entitled to reinstatement to nonequivalent positions”). At the time Jung was
recalled, Stern’s shearing position was available, filled only by supervisors performing Mazak

53This finding is without regard to the fact that a unilateral change in the use of supervisors
to perform bargaining unit work is a violation of Section 8(a)(5), and of Section 8(a)(3) if
discriminatorily motivated. This case contains no such independent allegations, but that is
irrelevant. The issue in this case is the unlawful failure to reinstate strikers and, as set forth in
the text, an employer may not limit strikers’ recall by assigning unit work to nonunit employees.
54There can be no doubt that the job reassignments, eliminations, subcontracting and other
changes in terms and conditions are mandatory subjects of bargaining, as is the loss of work
opportunities resulting from such changes. Hence, unilateral action in these spheres constitutes
a per se breach of the Act. Holmes & Narver, 309 NLRB 146, 146–148 (1992); Wilen Mfg., 321
NLRB 1094, 1097 (1996); Ironton Publications, 321 NLRB 1048, 1067, 1069 (1996) (imposing
additional duties on employees is mandatory subject of bargaining).
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work which, as discussed above, was illegitimate. Respondent was obligated to reinstate Stern
to perform Stern’s prestrike position. It could not ignore Stern and recall a general factory
employee to perform Stern’s prestrike position.55
The upshot is that Stern should have been recalled to fill the vacant shear operator
position at the end of the strike. This work was available prior to Jung’s December 1, 1997
recall and assignment to perform it. No evidence suggests that the shearing work, including the
Mazak work, only became available after Jung had been reinstated.
General Counsel also contends that with the recall of Stern on February 15, 1999, with
Stern working alongside Jung, the evidence shows that there was enough work in the shear
department for two shear operators, and those two should have been Stern and Rettler, the next
most senior shear operator. In other words, the General Counsel contends that Jung, who
should not have been working in the shear department in Stern’s place in the first place, should
not, as well, been working in place of Rettler either. I do not agree.
As discussed, above, there is no allegation that Respondent independently violated the
Act by using Jung to perform shearing. Stern was entitled to backpay for the shearing work
Jung (and supervisors) were performing because the work was available for Stern even before
Jung was recalled and assigned to perform shearing work. But when Stern actually assumed
his shearing position, that does not mean that Rettler was entitled to Jung’s work as well. To
the contrary, at least where there is no independent violation of the Act—i.e., an unlawful
discriminatory motive or an unlawful unilateral change—Board law permits the use of previously
reinstated strikers or lawfully retained replacements to be assigned the work of unrecalled
strikers. Randall Burkett, 275 NLRB 1 (1981). The transfer or reassignment of such work does
not trigger a vacancy for an unrecalled striker.
However, when Jung left in June 1999, the evidence would suggest that an additional
shear position was available, which should have been filled by Rettler. Respondent points out
that no one replaced Jung performing full-time shearing, but his shear work had to be done.
More important, even if Jung’s shear work was diminishing, in 1999 a second laser was added
at KSM. This would involve a significant increase in laser work performed by supervisors but
owed to an unrecalled striker. Prestrike, Stern spent 30 to 40 percent of his time operating one
laser. Two operating lasers, combined with the remainder of Jung’s work, would easily provide
work for another full-time employee. Although there is uncertainty about the date in 1999 when
the second laser began operation, these doubts are properly resolved against Respondent. I
find that upon Jung’s departure, there was work for a second shearer operator and an additional
shear operator should have been recalled. Obviously this determination is an example of the
“problematic and inexact” nature of determining backpay awards, but it is the most accurate
calculation possible under the circumstances.56

55Notwithstanding some overlap in the job descriptions, there is no contention that the shear
operator’s job is substantially equivalent to the general factory position.
56Accordingly, I set Rettler’s backpay period as June 14, 1999 to February 3, 2004. This
eliminates Rettler’s first quarter 1999 backpay and reduces the second quarter net backpay to
2.2 weeks. Assuming that the gross and interim backpay set forth in the General Counsel’s
calculations were earned evenly through the second quarter, this leaves net backpay for the 2.2
weeks at $64.68. Rettler’s total net backpay is reduced to $1869.98.
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b. Inspection department
Prior to the strike two bargaining unit employees worked as inspectors.57 Along with a
quality control supervisor, they performed general inspection work throughout the facility. In
addition to the inspectors, it had long been the practice for production employees to contribute
to quality control by checking their own work for errors or deviations.58 Production supervisors
performed minor inspection duties in their departments as well.
After the strike, KSM did not recall the inspectors. Inspection duties were performed, as
before, by bargaining unit employees checking their own work, supervisors assisting in their
departments, and by the quality control manager. The significant change after the strike was
the increase in inspection performed by supervisors, who now performed inspection daily, as
well as the inspection work now performed extensively by other nonbargaining unit employees
were also assigned inspection work after the strike. As employee Paul Bojar explained,
“[w]hoever was not doing anything in the office I think they came down and helped inspect.”59

57The two were Harvey Kahn who resigned during the strike and for whom no backpay is
sought, and Randall Henning, who the General Counsel alleges was entitled to reinstatement
and backpay from the end of the strike though May 19, 1998, when he declined recall.
58This can be distinguished from the more general and formal duties performed by
inspectors. As Jung explained, in response to a question about whether he performed his own
inspection work, “I made that part of my job, yes. There was inspectors there. . . . I always
looked over my work when I got done to make sure for myself that I had done it right.”
(emphasis added). KSM points out that its “quality inspection/responsibility procedure” duties,
set forth in R. Exh. 1, establish that inspection was always the duty of each production
employee. However, this document shows that the employees’ inspection responsibilities were
in addition to, not in lieu of the work performed by the inspectors. Indeed, the stated purpose of
emphasizing quality control and inspection duties for production employees was to “free”
inspectors for more pressing and complex inspection duties. R. Exh. 1 at 1–2.
59I credit Bojar and Malson’s observations about the increase in supervisory and
nonbargaining unit employee inspection work after the strike. Bojar is a 34-year employee of
KSM and through his work, which required him to move throughout the plant, he gained much
knowledge of facility practices. I realized he erred in testifying that the Mazak began production
with the loading tower in 1996 (it actually came a few months later that year) but that is an
exceedingly minor misrecollection. With this exception, and based on his demeanor and the
plausibility of his testimony, I credit this witness. In addition, Bojar’s testimony regarding
increased supervisory inspection work after the strike was corroborated by the testimony of
Malson, who also testified credibly. I note that Malson’s testimony was free of overstatement,
exaggeration or other indicia of tendentiousness. His testimony is credited. I do not accept
KSM’s suggestion on brief that supervisory involvement in inspection work did not increase after
the strike. It did, and it is hard to see how it could not have. Oechsner estimated orders were
halved by the strike, but that would account for the reduction of only one inspector. And that
work picked up in the ensuing months. There is no evidence that bargaining unit employees
increased inspection duties after the strike. They continued to monitor their own work as
always. The difference after the strike was the increased inspection role for supervisors. I also
note, in response to KSM’s contention that the Mazak reduced the need for inspectors, that the
Mazak was introduced prior to the strike, and the two inspectors worked until the strike began.
The second laser was not introduced until 1999, well after the close of the backpay period for
the unrecalled inspection employee Henning.
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In this case, Respondent has failed to show that there was not work available for one
inspector at the end of the strike. Instead the work was shifted to supervisory and
nonbargaining unit personnel. As discussed above with regard to the laser work, Respondent
cannot shift bargaining unit work to nonunit employees and claim that work is unavailable for a
qualified unrecalled unfair labor practice striker. Radio Electric Service Co., supra at 532; Super
Glass Corp., supra at 596 fn. 1.60
c. The Stockroom
Prior to the strike one bargaining unit employee, Doug Wiedeman, was employed in the
Stockroom and Receiving 2 position. His supervisor was Dave Hunkel. His work involved
accepting incoming parcels, unloading trucks, storing, disbursing, and inventorying, and
monitoring stock levels of materials.
Wiedeman was not recalled until February 3, 2004. A number of witnesses testified, and
I find, that until Wiedeman was recalled his stockroom work was performed by supervisors
Kingsbury, Hunkel, and recalled striker Norbert Jahn. Hunkel also confirmed this to Wiedeman.
Kingsbury, the welding supervisor, ordered and took stock for the welders. He would write up
orders to give to Hunkel. Hunkel would stock incoming parts, determine what needed to be
ordered and enter the information in the computer. Jahn would unload trucks and move
materials to the inventory. Jahn was recalled to work October 20, 1997 to his general factory 2
position. After the strike, in addition to his general factory 2 work, he performed significantly
more stockroom duties than in the past. However, certain stockroom and receiving duties were
part of the general factory job description, a job designed to be flexible and to encompass a
broad range of work. Jahn testified that before the strike he also performed some stockroom
and receiving work.
On November 8, 1999, Union President Malson complained to KSM that while Jahn was
classified and paid as a general factory 2 employee, since returning from the strike KSM had
added stockroom and receiving work to his duties and he should be receiving the highest paying
stockroom rate applicable to the stockroom and receiving 1 position.61 The next day KSM, by
Oechsner, responded to Malson’s grievance, denying the request. Oechsner denied that Jahn
performed many duties covered by the stock and receiving 1 position. He admitted that Jahn
performed some duties consistent with Stock and Receiving 2, but concluded that “for the
majority of a workweek Mr. Jahn works within the General Factory 3 classification while
occasionally performing duties that cross into the General Factory 2 and Stock and receiving 2
classifications.”

60Respondent argues that if Henning is entitled to backpay it should end as of February 20,
1998 when Henning was offered recall to the weld setup A classification. Respondent maintains
that the weld setup A position is “substantially equivalent” to Henning’s inspection position. I
need not decide if the weld setup A position is substantially equivalent to Henning’s inspector’s
job. As I have found, work was available for Henning in his prestrike position when he was
offered and declined the weld set up position. “The employer is required to offer the individual
the ‘same position,’ unless it shows that such position is not available . . .” Comar, Inc., 349
NLRB No. 33, slip op. at 20 (2007); Murbro Parking, 276 NLRB 52, 56 (1985) (“An employer
does not have the option of choosing a substantially equivalent job where the discriminatee's
former job is still extant”). KSM’s backpay and reinstatement obligations to Henning are
unaffected by the offer of recall to the weld setup A position.
61Stock and Receiving 1 was a labor grade 7. Stock and Receiving 2, and General Factory
2 were in the lower paying labor grade 8.
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The upshot of this is that Jahn, who had performed some stockroom work prior to the
strike, performed more after the strike. Yet KSM denies that the majority of his workweek was
spent performing stockroom work. I accept Respondent’s claim, which, in this context is an
admission of a party opponent. I find that after the strike, the majority of Wiedeman’s work was
performed by supervisors Kingsbury and Hunkel. Wiedeman’s work was available, but was
being performed by supervisors. As discussed above with regard to the laser and inspection
work, Respondent cannot shift bargaining unit work to nonunit employees and claim that work is
unavailable for a qualified unrecalled striker. Radio Electric Service Co., supra at 532; Super
Glass Corp., supra at 596 fn. 1. The work that Jahn performed in the stockroom, must be
analyzed similar to the situation with Stern and the shearing department, set forth above. At
strike’s end, the stocking and receiving position was vacant, manned, illegitimately by
supervisory personnel. Instead of recalling the stocking and receiving employee to his former
position to displace the supervisor’s and pick up the additional work assumed 2 weeks later by
Jahn, Respondent ignored Wiedeman and recalled a general factory employee, added some
stockroom duties to his prestrike work, and, along with supervisors, filled the stockroom position
to which Wiedeman was entitled. As with Jung and the shearing work, after the strike was over,
Respondent might have been able to transfer stockroom duties to an incumbent general factory
employee when inspector work arose instead of recalling an unrecalled inspector. But
Respondent was not privileged to recall a general factory employee after the strike was over
and have him and two supervisors perform the job that was the prestrike job of an unrecalled
and unreplaced stock and receiving employee.
Respondent contends that stocking and receiving work declined after the strike and did
not warrant the reinstatement of a stocking and receiving employee at strike’s end. Respondent
has failed to meet its burden of proving this. It asserts that the conversion of the stockroom
from a “closed” to an “open” stockroom—which made certain items accessible to employees
without the need of consulting with a stockroom attendant—diminished the need for a stocking
and receiving employee. But that change occurred prior to the strike and there is no evidence
suggesting that Wiedeman’s position was imperiled by this change. Respondent also contends
that work orders were reduced after the strike, but this assertion—which I do not doubt—is
unsupported by any evidence that could be used to assess the impact of the loss of work for the
stocking and receiving position. Since the record is clear that a significant amount of stocking
and receiving continued after the strike—doled out between 2 supervisors and a general factory
employee—the bald assertion, even if uncontradicted, is insufficient to meet Respondent’s
burden. Burns Motor Freight, 250 NLRB at 279 (“testimony that the Respondent lost business
as a result of the strike, although uncontradicted, was not corroborated or documented. . . .
There was no showing of any specific loss of revenues, nor was there even a showing of the
effect of the claimed loss of business on the total employee complement as compared to that
existing prior to the strike”). It is no small matter that neither Hunkel nor Kingsbury was called to
testify. They would have been the natural witnesses to provide evidence that, contrary to the
testimony of employee witnesses, they were doing a paltry amount of stocking and receiving
work, and that their stocking and receiving work, combined with Jahn’s, did not amount to a full-
time job. There was no such testimony. Wiedeman, on the other hand, testified that in
February 2004 when he was reassigned to his prestrike stocking and receiving position it was a
fulltime job.62

62Oechsner disputed this, but barely. Asked by Respondent’s counsel: “As a matter of fact,
since the strike has ended, has anyone worked full time in the stockroom?” Oechsner
answered: “A hundred percent of their time, no.” Following up on this, Respondent’s counsel
asked Oechsner, “And even today, is there currently enough work available in the stockroom to
Continued
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d. General Factory classification
One aspect of the compliance specification that Respondent disputes is the treatment of
replacement Pane Chanthaphavong—who was hired March 19, 1997, the date the strike
converted. The General Counsel’s compliance specification treats Chanthaphavong as an
unprotected replacement in the General Factory position. I reject Respondent’s assertion that
Chanthaphavong should be accorded the status of a permanent (or as the parties put it a
“protected”) replacement. The Board’s order in this case—terms of which are not in dispute or
subject to amendment in this proceeding63—states unequivocally that strikers are to be
_________________________
have an employee work full time in that area?” Oechsner answered: “Not to fully occupy their
time, no. . . . They’re occasionally pulled off and put on other operations.“ This does not sound
like Wiedeman is lacking for work related to his position. I note that he was recently promoted
to stock and receiving 1, a higher paid, higher skilled stock and receiving position, which
suggests that there is a significant amount of work for him in this department.
At trial, Respondent produced a computer generated account of Wiedeman’s time
covering January 2006 to mid-October 2006. It showed that Wiedeman worked 56 percent of
his time performing tasks that, for work order and billing purposes, were called stock and
receiving. Respondent says that there is more stock and receiving work in 2006 than in earlier
years after the strike, and therefore, this shows there was little stock and receiving work after
the strike. I cannot give much weight to this document, at least as applied to this argument.
First of all, it is inconsistent with the testimony, including Oechsner’s. Nothing in his testimony,
and I have set out some of it in this footnote, suggests that in 2006 Wiedeman was spending
only half of his worktime performing stock and receiving work. I believe that if this were so,
Respondent’s witnesses would have trumpeted it. Second, the document lacks reliability. As
Oechsner explained, “we have quite a bit of trouble at work with people clocking in on the wrong
operation or clocking in and forgetting to clock out and the times are not always accurate.” For
that reason, “[e]ach day there’s a person responsible for going through the labor postings from
the previous day . . . and make an adjustment to correct the previous day’s labor postings.”
The production records on Wiedeman were studded with these corrections, which are called
“negative postings.” As Oechsner recognized, “I agree, there’s a lot of ’em. There’s a lot of
negative postings.” Their accuracy is unverifiable, and the extensive need for them calls into
question the reliability of the underlying document. Moreover, the dates on which there are
negative postings leaves gaps in the record: the work Wiedeman actually did on these days is
not reflected on the document. Oechsner cannot vouch for the accuracy of the negative posts.
Further, some “direct jobs” were already purged when this document was generated and those
purged jobs are not reflected on the sheet. (Respondent points out that the purged jobs would
not be stocking and receiving and suggests that this means that Wiedeman’s stocking and
receiving work may have been even less than 56 percent in 2006). I also note that the
underlying data supporting this summary document no longer exists, raising questions about the
appropriateness of the document under Federal Rule of Evidence 1006. Finally, as the
document covers a period well beyond the back period, its relevance is dependent on the
testimony that there was more stock and receiving work in 2006 than in earlier years. I do not
believe the document was forged, or purposely designed to mislead or anything else nefarious.
I do believe that the program was designed to aid in customer billing and internal job costs, and
not for documenting the nature of an employee’s workday. In light of the irregularities discussed
above, and in light of the testimony from Wiedeman, and from Oechsner, I do not believe this
document can serve to satisfy KSM’s burden of proving that there was not stock and receiving
work for an employee after the strike.
63Transport Service Co., 314 NLRB 458, 459 (1994).
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reinstated to their former positions “dismissing if necessary any persons hired as replacements
on or after March 19, 1997.” (emphasis added). The order further states that remaining strikers
are to be placed on a preferential hiring list and offered employment “on the departure of any
replacement hired before March 19, 1997.” Under the explicit terms of the Board order,
Respondent was required to dismiss Pane Chanthaphavong, and all others “hired as
replacements on or after March 19, 1997,” in order to make way for returning strikers.64
Respondent raises two additional contentions regarding the general factory aspect of the
compliance specification.
Respondent asserts that the General Counsel’s compliance specification fails to account
for two unprotected replacements (N. Love and T. Keungsavath) who were “laid off due to
returning strikers” on October 10, 1997. I disagree. At strike’s end there were six unprotected
replacements working in the general factory classification, including Love and Keungsavath.
The General Counsel seeks backpay for six unrecalled strikers at strike’s end. After Love and
Keungsavath’s layoff, striker Jahn was recalled on October 20, 1997. At that point, the General
Counsel reduces the accruing backpay demand to five strikers. When striker Jung was recalled
on December 1, 1997, leaving four unprotected replacements working in the general factory
classification, the General Counsel reduces the accruing backpay demand to four strikers.
Thus, as N. Love and T. Keungsavath’s positions were filled by Jahn and Jung the General
Counsel accounted for this by reducing the number of strikers continuing to accrue backpay to
equal the number of unprotected replacements who continued to work.
Respondent also asserts that it is paying “double backpay liability” because the General
Counsel seeks backpay for unrecalled striker Stern in the shearing department, while that work

64Respondent points out that, in its decision, the Board stated that “the Respondent violated
Section 8(a)(3) by refusing to reinstate strikers who had not been permanently replaced as of
March 19.” (footnote omitted). I note that KSM has failed to prove that Chanthaphavong was
hired as a permanent replacement. As discussed, supra, it is Respondent’s burden to establish
the facts justifying the refusal to reinstate a striker. Thus, it is well settled that “[i]t is the
employer’s burden to prove its affirmative defense that the alleged discriminatees were
permanently replaced.” Towne Ford, Inc., 327 NLRB at 204; Associated Grocers, 253 NLRB 31
(1980) (permanent replacement “is an affirmative defense and Respondent has the burden of
proof”), enfd. 672 F. 2d 897 (D.C. Cir. 1981). The “proof must be specific and must show a
mutual understanding between the employer and the replacements that they are permanent.”
Towne Ford, supra; Augusta Bakery, 298 NLRB at 65. To prove a “mutual understanding”
between the employer and the replacement the employer must produce evidence showing that
both it and the replacements understood that their status was as permanent replacements.
Associated Grocers, 253 NLRB at 32. Absent the employer’s adducement of factual evidence
proving mutual understanding of permanent replacement, the “Board has held that the
presumption is that the replacements are temporary.” Hansen Bros. Enterprises, 279 NLRB
741 (1986), enfd. without op. 812 F.2d 1443 (D.C. Cir. 1987). Towne Ford, supra (“Respondent
offered little evidence to overcome the presumption that the replacements were temporary”);
Montauk Bus Co., 324 NLRB 1128, 1128 fn.1, 1138–1138 (1997) (presuming temporary status
where employer’s witnesses’ testimony was conclusory and lacked weight, and was
unsupported by replacement testimony). Respondent offered no evidence demonstrating the
“mutual understanding” that Chanthaphavong was hired as a permanent replacement. It also
should be noted that Respondent’s chart showing strikers, replacements, and their status—a
document created by Respondent and submitted to the Region in 2001 (GC Exh. 3), indicates
that at that time Respondent considered Chanthaphavong an unprotected replacement.
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was performed by a general factory employee. According to Respondent, it should not have to
pay backpay to “two individuals—one in GF and one in Shear—for one replacement worker in
GF.” Respondent contends that this “goes beyond making discriminatees whole and should be
denied.” Respondent misconceives the compliance specification. General Counsel,
appropriately, seeks backpay for one unrecalled general factory striker for each unprotected
replacement position. As discussed above, in addition to the four unprotected general factory
replacements working as of December 1, 1997, Respondent recalled striker Jung to work in the
shear department, along with supervisors, thus unlawfully denying reinstatement to shear
operator Stern. As discussed above, Stern is owed backpay. No general factory striker is
receiving backpay on account of Jung’s work. As discussed in the preceding paragraph, Jung’s
reinstatement reduced by one the number of unreinstated general factory employees receiving
backpay. It is true, of course, that Respondent paid wages to Jung, and to two supervisors, for
work that should have been performed by Stern and for which backpay is appropriately
assessed on Stern’s behalf. In this sense only is Respondent “double paying.” But I do not
think that Respondent intends to contend that backpay due a striker—or any discriminatee, for
that matter—should be reduced by the amount of wages Respondent paid to those who
unlawfully replaced him.
e. Shipping department and James Kollenbroich’s reinstatement
James Kollenbroich worked for KSM since 1977. Prior to the strike he worked for 20
years on the first shift in the shipping department performing final assembly work. At the time of
the strike Kollenbroich’s job title was shipping A. Prior to the strike Anthony Bannenberg
worked as a shipping B employee with Kollenbroich. Prior to the strike, Roger Gutjahr worked
second shift as a shipping A employee.
Prior to the strike, two employees, James Kranz and Anthony Schmitt worked as
shipping & trucking A employees (first shift). Based on the job descriptions for these positions,
the main difference between shipping A and shipping & trucking A (in addition to the higher pay
for the shipping and trucking position) was that a shipping & trucking A employee was to
maintain a commercial drivers license (CDL) that would allow him to drive the large truck used
by KSM for deliveries. In fact, Kranz was the primary truckdriver and usually drove the large
truck. He also performed assembly work similar to that performed by Schmitt and Kollenbroich.
Schmitt “very seldom” drove the large truck. He did so when neither Kranz nor Supervisor Tony
Oechsner were at work. Both before and after his promotion, Kollenbroich and Schmitt had
worked alongside each other, for the most part performing the same or very similar work.
Kranz was recalled to work October 20, 1997, and resumed his prior work, including
being the primary driver of the large truck. Schmitt was offered recall on May 19, 1998, to his
first-shift shipping and trucking A position. He declined the offer on May 20, 1998. No one was
hired to fill the position that Schmitt turned down. By letter dated May 19, 1998, Kollenbroich
was offered a shipper A position, but in a subsequent phone call with Oechsner on May 20, the
position offered to Kollenbroich was to a second-shift shipper A position. Kollenbroich agreed to
take the second-shift position and reported for work on May 26. He reported for work on the
first shift pursuant to KSM’s request that he undergo a 1–2 week “indoctrination period” before
being put on the second shift.
One week later, on June 2, 1998, with his commencement of second-shift work
imminent, Kollenbroich told Oechsner that he did not want to work the second shift. Oechsner
and Kollenbroich agreed that KSM would recall another employee on the recall list for the
second shift and Kollenbroich would then return to the recall list and await an opening on the
first shift. Oechsner prepared a letter summarizing what had transpired and asked Kollenbroich
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to review it and if it was accurate, to sign it. Kollenbroich and Oechsner both signed the letter,
which is dated June 3, 1998, and which states:
Dear Mr. Kollenbroich:
This letter is to confirm our conversation and mutual agreement on June 2, 1998,
regarding your employment status. On May 19, 1998, the Company extended a
recall of employment offer by certified mail. The job offered to you during our
phone conversation on May 20, 1998, was a second shift Shipper A position.
You initially agreed to report to second shift following a one to two week first shift
indoctrination period. You reported for work on Tuesday May 26th.
However, on June 2, 1998, you stated your desire not to work second
shift and requested the Company recall another laid-off worker to that position
and to place your name back on the laid-off subject to recall list. It was mutually
agreed that the Company will attempt to recall another Shipper A for the second
shift position and that you will continue to work first shift pending replacement.
The Company does[,] however, reserve the right to transfer you to second shift in
the event it is unsuccessful in its attempt to recall another Shipper A.
Kollenbroich was then laid off and returned to the recall list. Records in evidence show
that Roger Gutjahr was offered recall on June 3, 1998. Prior to the strike he had been a shipper
A on the second shift. He accepted the recall and on June 15, 1998, began working on the first
shift and moved to second shift June 22, 1998. There is no evidence suggesting that an
additional employee was hired to work in shipping prior to February 25, 1999, when
Kollenbroich was finally offered his first-shift shipping position. Kollenbroich declined that offer
of recall on March 1, 1999.
The General Counsel contends that with Schmitt’s decline of his recall, there was
shipping work for Kollenbroich on the first shift, and Kollenbroich should have been recalled—
not to Roger Gutjahr’s second shift position, but to the first-shift shipping position that he held
before the strike. The General Counsel’s position stems from the fact, established by multiple
witnesses, that qualifications and licensing aside, Schmitt performed very little truck driving and
mostly performed shipping work identical to that performed by Kollenbroich. Kranz was recalled
shortly after the strike ended and resumed truckdriving and his other prestrike duties. The
General Counsel’s contention is that the recall of Schmitt demonstrates that there was first-shift
shipping/assembly work—of the very kind that Kollenbroich and Schmitt regularly performed.
KSM contends, initially, that Kollenbroich was recalled to his first shift, but then
transferred, in accordance with the terms and conditions of the expired labor agreement, to the
second shift. According to KSM, “the recall to first shift terminated any entitlement to backpay.”
(R. Br. at 109). This argument is inconsistent with the record facts. As clearly set forth in the
letter (reproduced above) that Oechsner wrote to document events surrounding Kollenbroich’s
recall, Kollenbroich was not offered reinstatement to the first shift. He was offered the second
shift position with the understanding that he would have a short “indoctrination period” on the
first shift. It is well-settled that “an offer of employment for a different shift is not "substantially
equivalent." Associated Grocers, 295 NLRB 806, 807 (1989). KSM cannot transform its offer of
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second-shift work preceded by a temporary “indoctrination period” on the first shift, into a bona
fide offer of reinstatement to Kollenbroich’s first shift position.65
The more significant issue is the question of whether there was, in fact, as General
Counsel contends, work for Kollenbroich as a first shift shipping A employee. After Schmitt
turned down the offer of recall to shipping and trucking A, KSM did not hire or recall another
shipping and trucking A employee to the first shift. Nor did it hire or recall another shipping A
employee to the first shift. After Kollenbroich rejected the second shift, Gutjahr was recalled
and after a week on first shift, presumably an “indoctrination period” such as Kollenbroich had
enjoyed, was put on second shift (where he had worked immediately prior to the strike). This
raises the question: who, if anyone, performed the final assembly work that Schmitt would have
done if he had been recalled and to which General Counsel maintains Kollenbroich was
entitled? Oechsner testified that no additional employees were needed on the first shift. This
was, however, at a time, late May and June 1998 when the “production requirements were
building,” or as Oechsner put it with regard to reinstatement of factory employees at this time,
“[i]t was all hands on deck.” Moreover, records show that strike replacement Durwin Nash, who
worked as a first-shift shipping B employee, resigned in May 1999, presumably leaving
additional shipping department work. The record shows, and Oechsner testified, that
employees were routinely moved throughout the facility to accomplish work, including in the
shipping area. Thus, the shipping work was performed on the first shift by a variety of
employees from many different classifications, although it appears that none were classified as
shipping department employees at that time. This included recalled strikers (such as Brandon
Hottenstein), protected replacements (such as Charles Nash, who Oechsner recalled being
“routinely” assigned to shipping) and unprotected replacement Pane Chanthaphavong who
James indicated worked in shipping and who Oechsner recalled as working in shipping “a good
portion” of 1998 and 1999 (and who Nash complained should have been moved out of shipping,
instead of himself). Based on KSM’s admittedly expanding production, its attempt to recall
Schmitt to a first-shift position that would have primarily involved shipping assembly work, and
the admitted use of unprotected replacement Chanthaphavong to perform shipping department
work on the first shift, I find that the evidence supports the General Counsel’s contention that
there was work for at least one unrecalled shipping employee on the first shift as of May 1998.
Kollenbroich’s backpay period appropriately began to run on May 20, 1998, the date of
Schmitt’s rejection of a first shift offer that would have involved significant amounts of shipping
assembly work of the type he and Kollenbroich had performed together for many years.66

65I do not reach the issue of whether an employer may satisfy its duty to offer an unfair labor
practice striker reinstatement to his former position by reinstating (without condition or limitation)
the employee to his former position but then, upon his reinstatement, make an independent
decision to transfer the employee to another shift or position. That issue is not presented in the
case of Kollenbroich, who was reinstated with the understanding that he would have to go to the
second shift.
66At the hearing, the extensive testimony solicited by the General Counsel questioning how
quickly, and even whether Schmitt obtained a CDL seemed to suggest the argument that
Kollenbroich could (and should) have taken Schmitt’s position without a CDL. In its brief,
Respondent anticipated and responded to this argument. That is not, however, the General
Counsel’s contention. I do agree with Respondent (and perhaps, with the General Counsel who
forewent the argument) that such a contention would not be convincing. Even if only rarely
used, KSM is entitled to require a CDL license for the shipping and trucking position, so that the
incumbent in that position—which is a higher paid position than shipper A—can operate as a
backup truckdriver. If KSM wants to pay extra to have the assurance of a backup driver, even if
Continued
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f. The offer to reinstate Michael Servi
Michael Servi began at KSM in August 1976 and went on strike in January 1997. He
worked as a Tape A programmer on the first shift prior to the strike. Four unprotected
replacements were working in the tape department at strike’s end and two remained working
there through January 1999. The parties agree that Servi was unlawfully denied reinstatement
at the end of the strike. However, the parties dispute whether Servi’s backpay tolled and his
right to reinstatement waived when he declined an offer of reinstatement in January 1999.
More than 14 months after the strike, KSM contacted Servi by letter dated December 22,
1998. The letter, from Oechsner, stated that “KSM anticipates an opening within the
classification Tape A to occur in mid-January of 1999. This letter is to determine your
availability for recall to that position.” The letter went on to request that Servi contact Oechsner
“to discuss your availability and possible recall.” A few day later, on December 28, 1998, Servi
called Oechsner to say, according to Oechsner’s notes, that “he is available for recall in mid-
January. I advised him the Company would contact him again should the opening occur.”
Oechsner wrote Servi again on January 26, 1999, stating,
Following up on our conversation of last December, I am hereby offering
you reinstatement to your former position of Tape A. If you are interested in
returning to employment with KSM, contact me within three business days
following receipt of this letter to discuss your date of return.
Servi called Oechsner on February 2, 1999. Servi said he would like to return to KSM
but told Oechsner he would not be available until March 1, 1999. Oechsner testified that he
reminded him of our conversation -- earlier conversation where he said he would
be available in January and I asked him what prevented him from reporting
sooner. He indicated to me that he had things to do and that the earliest he
could report was 2/22 and we then agreed on that date.
Oechsner did not have an independent recollection of discussing health insurance with
Servi during this conversation, but, based on the letter he received from Servi on February 18,
he assumed that they did. Servi’s letter (dated February 16, 1999) stated:
Dear Dave,
After our last conversation on February 2, 1999, it is apparent to me that some
things have changed at KSM Industries that I believe were not part of the
unconditional agreement to return to work. One of the most disturbing changes
that you told me was a wait of over 60 days before I am eligible for any health
insurance. The wait of over 60 days for these benefits greatly compromises my
daughter, wife as well as myself.
Therefore, with great disappointment I have to decline your offer of employment.
_________________________
the employee generally performs only final assembly work like other shipping A employees, it is
free to do so. KSM was under no obligation to train Kollenbroich or promote him to shipper and
trucker A as part of the striker reinstatement process.
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Servi’s reference in this letter was to the fact, as Oechsner says he would have
explained it to Servi, that health insurance for a returning striker would be effective on the first
day of the month following 60 days. This was not the case for strikers who were previously
recalled. Prior to January 1, 1998, strikers returning to work in October, November, and
December 1997 became eligible for insurance immediately upon their return to work, as long as
they had been covered by KSM insurance at the start of the strike, thus placing them in the
same situation as when they went out on strike.
Oechsner agreed that, had Servi been recalled prior to December 31, 1997, he would
have immediately been eligible for health insurance and would not have been subject to a
waiting period for commencement of health insurance.67
The General Counsel contends that the offer of reinstatement was invalid because of the
attendant condition that Servi could not resume health care coverage for over 60 days and,
therefore, by declining Servi did not toll backpay or waive reinstatement. It is, in fact,
indisputable that had Respondent offered Servi reinstatement at strike’s end, as it was lawfully
required to do, Servi would not have been subject to a waiting period before resuming health
insurance coverage. Therefore, the January 1999 offer of reinstatement was not an offer to a
position with the same benefits that he would have received but for Respondent’s discriminatory
failure to recall him earlier.
This “clearly renders the offer invalid because ‘a Board order for reinstatement of a
discriminatee is designed to place that individual in the same position the individual would have
been in had there not been discrimination against him.’” Consolidated Freightways, 290 NLRB
771, 772 (1988) (quoting Craw & Sons, 244 NLRB 241 (1979), enfd. without op. 622 F.2d 579
(3d Cir. 1980)), enfd. as modified 892 F.2d 1052 (D.C. Cir. 1989), cert. denied 489 U.S. 817
(1990). “Accordingly, an evaluation of the discriminatees' response to the letter [offer] is
unnecessary.” Midwestern Personnel Services, Inc., 346 NLRB No. 58, slip op. 2 fn. 8 (2006).

67As Oechsner explained in a January 21, 1998 letter to the Union, the immediate eligibility
for insurance available in the first months after the strike was the result of an “informal waiver
the Company requested and received from the health insurance underwriter. Since then, the
Company was notified the underwriter will not extend this informal waiver beyond December 31,
1997, notwithstanding our efforts to have it extended.” KSM was self-insured but paid an
underwriter for stop-loss coverage, covering an employee’s costs beyond a certain point. It
could have chosen to cover any increased cost resulting from the immediate reinstatement of a
striker’s health insurance coverage. However, given its underwriter’s position, after January 1,
1998, KSM took the view that returning strikers (other than those who had continuously
maintained COBRA coverage since the commencement of the strike) were not eligible for
insurance benefits until “the first of the month following sixty days of employment.” This was
based on KSM’s application of provisions of the current health insurance plan, unilaterally
implemented during the strike, that required the 60 day waiting period for “new” employees. (Tr.
1316). In the underlying decision in this case, the Board found that KSM’s unilateral
implementation of the new health care plan violated the Act. KSM, supra at 134–135. The
previous plan, in effect at the strike’s commencement, provided for a 30 day waiting period for
new employees. While it is not clear that such provisions apply to returning strikers, this was
the position KSM articulated to the Union, and at trial. The more salient point, as set forth in the
text, is that if Servi was promptly recalled after the strike—as KSM concedes it was required to
have done—Servi would not have had a waiting period before being covered by the health plan.
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In this case, it is notable, however, that consideration of the discriminatee’s motive for
rejecting the offer buttresses the General Counsel’s position and, indeed, eliminates any
suggestion that, in these circumstances, the delay in resumption of health care coverage was
insignificant to the discriminatee. As Oechsner knew, Servi suffered from non-Hodgkin’s
lymphoma. He died from it March 7, 2001. His widow, Michelle Servi testified at the hearing
that Servi had had cancer since 1981. It had never been in remission and “[h]e was always
under medical care.” She testified that “he did decide to go back” to KSM but “[a]fter he had
called and talked to Dave Oechsner and found out the conditions of his returning . . . he
change[d] his mind.” Mrs. Servi testified, “it would have been financially devastating to us not—
for him not to have health insurance.” Mrs. Servi testified that “he couldn’t go back under those
circumstances of having to wait 60 days for the health insurance.”68
Thus, this case involved an individual who Respondent knew to have a serious medical
condition requiring continuous medical attention, and as is evident from his response to the
recall offer, the delay in health care coverage motivated Servi to reject the offer. It is common
knowledge that for many in Servi’s circumstances, health care coverage is a more important
condition of employment than wages or other working conditions. It is hardly a “fringe” benefit in
such circumstances. An offer of reinstatement that delays benefits (more than) 60 days is
substantively and materially deficient compared to the offer Servi was legally entitled to receive
and would have received in the absence of KSM’s unlawful delay in reinstatement. These
circumstances render inapposite the decision by ALJ Judge Kennedy in Desert Aggregates,
Inc., 32–CA–18653, (NLRB Div. of Judges, Nov. 2, 2004), relied upon by Respondent. In that
case Judge Kennedy found that an offer of recall to a “manipulat[ive]” discriminatee that
included a 90-day delay in health coverage eligibility did not invalidate the offer where the Judge
found that the health insurance issue “inconsequential to the discriminatee,” and “had no value
for him.” In the instant case, health insurance was of great significance to Servi.69

68I credit this testimony. Respondent broadly objected to Michelle Servi’s testimony on
grounds of hearsay. I overrule the objection because I find it unnecessary to rely on any
testimony of Michelle Servi that constitutes hearsay. As discussed, Servi’s reaction to the
invalid offer is irrelevant. However, if his reaction is considered, it is demonstrated in the letter
Servi wrote to KSM rejecting the reinstatement offer. This letter independently establishes his
motive for not accepting KSM’s reinstatement offer. There was no objection to the admissibility
of the letter.
69As Oechsner admitted, and as common sense suggests, KSM could have chosen, without
regard to the underwriter, to serve as a guarantor for Servi’s medical expenses for the 60 plus
days at issue. Respondent’s attribution of the problem to the underwriter is a red herring.
Moreover, I question the validity of KSM’s assertion that the health insurance plan required that
returning strikers to wait 60 or 30 days, and then to the first of the next month, to resume
coverage. That may have been its practice (although the record does not speak to another
strike, so this may well have been a matter of first impression), but nothing in the plan appears
to require it. Respondent appears to be applying eligibility provisions that apply to “new”
employees, which, of course, the strikers are not. (GC Exh. 121 at 4-1) Another provision
provides that an employee returning to work after a “layoff or approved leave of absence” within
90 days of loss of insurance coverage may resume coverage on the next “first of the month” but
the returning strikers had been neither laid off nor on an approved leave of absence.
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The offer was invalid and Servi’s rejection had no impact on Respondent’s duty to
reinstate him or his continuing backpay accrual.70
3. The order of reinstatement
The General Counsel asserts and Respondent concedes, that at strike’s end it was
required, but failed, to reinstate strikers to available positions, including positions held by
unprotected strike replacements. The parties agree that backpay is owing to each striker whose
position was available at the strike’s conclusion. The parties also agree that at strike’s end
there were not sufficient available positions for every striker and that those remaining strikers
were entitled to recall as positions became available. The parties disagree on the order in
which these unreinstated strikers should have been reinstated. KSM disputes the compliance
specification’s premise that employees should have been recalled to available positions within
their pre-strike department classification in order of their plant-wide seniority. KSM contends
that the more appropriate order of recall was the one KSM utilized (albeit with delays and
inconsistencies that in some cases admittedly result in liability) of recalling unreinstated
employees based on whom KSM believed to be the most qualified of eligible employees. In this
regard, KSM contends that it followed the recall provisions of the expired collective-bargaining
agreement in recalling employees as openings arose. Respondent asserts that in its weekly
management meetings, if it determined that work justified the recall of a striker, management
would make a group decision regarding the most qualified unreinstated striker in the
classification. That employee would then be recalled without regard to seniority. If, in
management’s view the qualifications of unrecalled strikers were approximately equal, then
management would look to seniority as a tie breaker.
In considering the competing positions, the Board’s disposition of a very similar dispute
in Alaska Pulp, is instructive. In Alaska Pulp, the Board explained:
Our objective in compliance proceedings is to restore, to the extent
feasible, the status quo ante by restructuring the circumstances that would have
existed had there been no unfair labor practices. Phelps Dodge Corp. v. NLRB,
313 U.S. 177, 194 (1941). Determining what would have happened absent a
respondent's unfair labor practices, however, is often problematic and inexact.

70Respondent attacks the conclusion that the insurance waiting period was the motive for
Servi’s failure to accept KSM’s reinstatement offer, asserting that Servi was earning more at his
interim employer, Perlick Corporation, than he would at KSM. But, as Mrs. Servi testified, the
job at Perlick was inferior because it was a second-shift position, “which was hard on us” and he
did not receive the 4 weeks vacation that he had earned with his 21 years seniority at KSM, and
which he “cherished.” KSM points out that Mrs. Servi did not consider trying to put Servi on her
employer’s insurance for the 60 day period, but Mrs. Servi said that with his health history she
did not believe that her insurance would or (in 1999) was obligated to cover him. Respondent
questions why Servi did not pay for COBRA from Perlick to get him through the 60 days, but
Mrs. Servi explained that they had lost all their savings paying COBRA during the strike and it
“would have been another financial hit to us to pay COBRA” again. Respondent is quibbling.
Servi explained in his letter to Oechsner why he did not accept the reinstatement offer.
Somewhat relentlessly as to this discriminatee, Respondent also contends that Servi’s
failure to accept KSM’s offer constituted a failure to mitigate his damages. However, Servi did
mitigate his damages. Instead of accepting KSM’s invalid offer he remained at his interim
employer until he was too ill to work where he received health insurance, wages, and disability
payments until his death.
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Several equally valid theories may be available, each one yielding a somewhat
different result. Accordingly, the General Counsel is allowed wide discretion in
selecting a formula. This does not mean, however, that the Board will always
approve the General Counsel's backpay formula even if it is reasonably designed
to arrive at the approximate amount of backpay due. Rather, where the
Respondent, as here, urges the Board to adopt an alternate formula, the Board
will determine which is the "most accurate method" of calculating backpay, in
view of all of the facts adduced by the parties. If, due to the variables involved, it
is impossible to reconstruct with certainty what would have happened in the
absence of a respondent's unfair labor practices, we will resolve the uncertainty
against the respondent whose wrongdoing created the uncertainty.
326 NLRB at 523 (footnotes omitted). See also, Parts Depot, Inc., 348 NLRB No. 9 (2006)
(“Our objective in compliance proceedings is to restore, to the extent feasible, the status quo
ante by restoring the circumstances that would have existed had there been no unfair labor
practices”).
Thus, the “wide discretion” afforded the General Counsel in selecting a backpay formula
is bounded by Board’s desire to utilize the “most accurate method” of calculating backpay. This
means the “objective” is “to restore, to the extent feasible, the status quo ante by restructuring
the circumstances that would have existed had there been no unfair labor practices. In
considering this question, the issue is not whether KSM’s practice of calling back the
unreinstated striker it deemed most qualified was independently lawful or unlawful, but “[r]ather,
the issue is whether the merit rankings by the Respondent accurately reflect the order in which
the Respondent would have recalled the strikers, under a lawful plan, to their pre-strike or
substantially equivalent positions.” Alaska Pulp, supra at 523.
In this case I accept the General Counsel’s position that recalling strikers in order of
seniority within classification is the most accurate reconstruction of what would have happened
in the absence of unfair labor practices. I reach this conclusion for the following reasons.
First, Respondent admits it as to the strikers who should have been recalled
immediately at the conclusion of the strike. Thus, Respondent’s answer to the compliance
specification, and its summary exhibit, R. Exh. 39, set forth a backpay formula that provides for
the most senior strikers in each job classification to receive backpay—one striker for each
working unprotected replacement, starting with the most senior striker and continuing down the
seniority roster until there is one striker accruing backpay for each unprotected replacement
working in a given classification. Respondent offers no explanation as to why seniority by job
classification is the appropriate method of recall to vacancies at the end of the strike, but not for
vacancies that develop subsequently. If recall of the most qualified is the operative principle
then Respondent would have taken the position that the most qualified—not the most senior—in
each department should have begun accruing backpay when they were not reinstated at strike’s
end. Notably, when Respondent recalls a senior striker (who Respondent admits had been
accruing backpay) without displacing an unprotected striker, Respondent takes the position that
the next most senior unreinstated striker in the department begins accruing backpay.71 Thus,
throughout the recall period, even while Respondent is contending that the right to
reinstatement should be based on relative qualification, it is willing to rely on seniority to

71See, e.g., R. Exh. 39 at page 1, “Brake Slots,” where Respondent starts striker Dennis
Benke’s backpay on January 5, 1998, upon the reinstatement of senior striker David Krull; also
reflected in KSM’s answer to amended compliance specification, ¶ 5(a)(iv).
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determine the right to reinstatement to a position held by an unprotected replacement. No
rationale is offered by Respondent for accepting that working unprotected replacements trigger
a right to reinstatement for strikers in order of seniority, while Respondent can choose “the most
qualified” for any other available position. And when unprotected replacements left,
Respondent did not necessarily offer reinstatement to the senior employees that Respondent
admits had been accruing backpay and entitled to those positions.72 Another way to view
Respondent’s position is that it accepts the principle of reinstatement by seniority in cases
where the principle is theoretical, i.e., in instances where Respondent unlawfully failed to
reinstate a striker and allowed an unprotected replacement to keep working. But opposes the
General Counsel’s methodology, in any instance where it actually reinstated a striker. In that
case, Respondent claims the right to reinstate the most qualified of the unrecalled strikers from
the relevant department. The arbitrariness and incoherence of Respondent’s model weighs
against its adoption.73
Second, Respondent’s proposed and highly subjective method of recall (something I
discuss below) was carried out in a context where its decisions were hopelessly confounded
with its admittedly unlawful conduct. Thus, Respondent’s position is that in each case it called
back the “most qualified.” But Oechsner admitted (as he obviously had to) that had Respondent
immediately displaced the unprotected replacements after the strike, there is no way to know
what Respondent’s hiring needs would have been when they were ready to reinstate additional
strikers. This is an obvious point, but it highlights that Respondent’s unlawful failure to reinstate
strikers in October 1997 inextricably impacted the selection of strikers later in the recall process.
Thus, the unlawful discriminatory failure to recall strikers in October 1997 taints the subsequent
unilateral decisions on reinstatement that Respondent seeks to validate. Indeed, as
unprotected replacements continued working beyond the time the last striker was offered recall,
Respondent’s unlawful refusal to displace the unprotected replacements with strikers framed
and shaped its recall choices in every instance throughout the recall process. Thus, far from
providing “the most accurate reconstruction of what would have happened in the absence of

72See, e.g., R. Exh. 39 at page 4, “GF Slots,” where after 2 unprotected replacements were
laid off reinstatement was offered to employee Manuel Guerrero notwithstanding Respondent’s
position that no unprotected replacement had been displacing him; answer to amended
compliance specification at 5(d)(vi); see also Tr. 1158–1160 where Oechsner is clear that
Guerrero was recalled over other senior unrecalled strikers to fill vacancy created by the
departure of unprotected replacements based on qualifications.
73I note that Respondent has not claimed that the unprotected replacements formally
replaced individual strikers in order of seniority and therefore seniority is the applicable principle
for apportioning backpay where unprotected replacements remained working. This contention
is not only unargued, it is fantastic, as it would concomitantly require the presumption that the
protected replacements replaced only the most junior employees. There is no evidence for
either proposition. I recognize that R. Exh. 3, a chart created by Oechsner and provided to the
Region during the compliance investigation, lists one unprotected replacement by the name of
one striker (in order of seniority) and this chart was likely the basis for the subsequent creation
of Respondent’s backpay chart (R. Exh. 39). But R. Exh. 3 was also created to aid in liability
analysis, not as a means of determining who should be recalled or who was replaced by whom.
In this regard, it is notable that on R. Exh. 3, the protected replacements—i.e., those who
lawfully replaced strikers—are set forth separately and there is no indication that any particular
striker was actually replaced by them. The unprotected replacements are aligned with a senior
unrecalled striker because Respondent agrees the senior striker is entitled to backpay as long
as an unprotected striker is working.
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Respondent’s unfair labor practices,” the choices made by KSM using its recall method are
infected by and of a piece with its unfair labor practices.74

Third, particularly given the previous point, the utter subjectivity of Respondent’s recall
procedure is troubling. As described by Oechsner and William James, then vice-president of
operations, Respondent’s recall determinations were made by a “management team” that met at
least weekly on an array of production matters. When managers felt that available work
required an additional employee the team would look at a list of unreinstated strikers from the
relevant department and choose the one that was most qualified in terms of the particular work
facing the department. James described an informal process:
“Well, you know, how it usually would happen is either Phil Davis or myself from
the shop floor end would say "We are going to need somebody". You know, "We
are going to need—we are going to have to start up a second shift in painting to
handle this". . . . [I]mmediately after the strike we had the recall list and then we
would see if one of those people would -- that would be Dave[ Oechsner]'s input.
He would say "We got so-and-so out here. Weren't they a painter"? Something
like that.”
Where the qualifications of two unrecalled strikers were deemed, in the team’s view, to
be approximately equal, then the team would select the most senior striker for reinstatement. At
trial, this basic description of the recall process was repeatedly invoked by Oechsner for every
recall decision he was asked about. Oechsner’s testimony made clear that the process was not
to determine whether two (or more) unrecalled strikers were capable or qualified to do the work
required, but, rather, who was “the most qualified” or “more skilled” employee, or the one “better
than anyone else that was on the list” from the relevant classification. (Tr. 1145, 1147, 1159,
1175, 1180). As Oechsner explained it,
Well, as our routine was, we would look at the available workers, we would look
at the -- well, first we’d look at what was the work available, what did we want
done, what did we need to have done, and then we looked at the available
workers and made a determination as to who had the most skill and ability to
perform that work. And that’s how we did it.”

The informality of the process is corroborated by the fact that Respondent offered not
one piece of documentary evidence corroborating any details of these weekly meetings. No
notes of the meetings or the consideration provided to these recall issues were introduced.
Perhaps none exist. The ad hoc quality to the “qualification decisions” relied upon by KSM
stand in sharp contrast even to the merit selection process relied upon by the employer in
Alaska Pulp, supra, which “merit-rated [employees] according to various criteria and gave each
employee a numerical ranking within his or her former department.” Alaska Pulp, 296 NLRB
1260, 1263 (1989). Here, Respondent’s choices on recall reflect an unfettered and unverifiable
discretion on recall decisions. This would be less of a concern if Respondent was making these
decisions in a context free of unfair labor practices, but it was not. Indeed, as referenced,
above, the exercise of this discretion is inextricably shaped by its unlawful failure to reinstate
strikers at the conclusion of the strike.

74This is true even assuming that KSM’s “most qualified” method of recall would not be
independently unlawful.
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Both Oechsner and James insisted that in recalling strikers they followed the procedures
of the expired labor agreement, specifically, Article IX, section 4. However, there is no evidence
that the parties intended this provision to apply to reinstatement of strikers. By its terms it
applies “[w]here the Company finds it necessary to lay off employees . . .” and, of course,
reinstatement after an unfair labor practice strike is not the product of a layoff. Section 4
concerns recalls that follow layoffs, and explicitly provides for employees to be recalled,
according to Section 4(E) “in the reverse order in which they were laid off, in accordance with
their seniority in their classification in accordance with ‘A’ of this Section.” Section 4 covers
recalls, but anticipates a recall that is a response to a layoff, not a strike.
But even assuming, wrongly by all evidence, that this provision was intended to be
applicable to striker reinstatement, I think KSM stretches this language farther than it will reach.
While the contract language does not provide for recall or layoff strictly by seniority, it also does
not, fairly read, anticipate the ad hoc discretion to chose the “most qualified” that KSM claims it
exercised in this instance.
The expired contract provides that “Employees shall be shall 'be laid off and recalled on
the basis of their seniority as established in their classification in accordance with "A" of this
Section.” Article IX, Section 3(B). Section A provides that factors the employer shall consider:
A) Where the Company finds it necessary to layoff employees, the following
factors shall be considered by the Company:
1. Qualifications, which shall be defined to mean present ability to
perform the work available in a good, efficient, and workmanlike
manner demonstrated by prior experience or training with the
Company. An employee who meets such qualifications shall be deemed
"qualified" for purposes of this Section.
2. Seniority in the affected classification or plant wide seniority
whichever is appropriate.
When as between two or more employees, Factor “1” (Qualifications), is
approximately equal , Factor “2” (Seniority) shall govern.
Respondent’s entire argument is based on its reading of this last quoted paragraph.
However, it is apparent from Oechsner and James’ description of the recall process, and from a
reading of the entire Section A as a whole, another way to interpret the language is that an
employee is “deemed ‘qualified,’” i.e., possesses the “qualifications” for the position, expressly
defined as the “present ability to perform the work available in a good, efficient, and
workmanlike manner demonstrated by prior experience or training with the Company.” Under
this standard, employees being recalled to prior positions would—except in very unusual
circumstances not relevant here—all be “qualified” with approximately equal qualifications as
they are all able to “perform the work available in a good, efficient, and workmanlike manner.”
Under this view, this recall provision is essentially a seniority recall provision with the condition
that seniority must give way to a review of employee’s qualifications to perform the work.
Although not the only interpretation of this clause, it is a compelling one. What is unique, and
untenable, I believe, is KSM’s position that this language permits it to recall the employee it
views as “the most qualified” in every instance, without a nod to the definition of “qualifications”
set forth in the language. Notably, there is no evidence that KSM considered the definition of
qualifications set forth in the language of the expired contract. Thus, I reject Respondent’s
contention that its method of recall is the one for which the parties previously bargained.
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Fourth, while Respondent’s witnesses asserted, without rebuttal, that this recall policy
had been used in the past, no examples were provided, and no documentary evidence
corroborates this claim. I accept that there were past recalls in which people were not recalled
in accordance with strict seniority. But there is no evidence that in the past a recall of any
magnitude was carried out in the ad hoc fashion that striker’s recall was undertaken. To the
contrary, there is documentary evidence suggesting that, both before and after the strike,
classification seniority was followed with regard to layoffs. Thus, a KSM list entitled “Callback
Effective January 20, 1997” was stipulated into evidence by the parties which appears to list, by
strict seniority within classification who will be working and who will be on layoff as of January
20, 1997. In each classification, it is only the junior employees who are on layoff.75 Similarly,
after the strike, in 2002 and 2004, plant wide seniority within classifications was followed in
layoffs with junior employees within each classification being scheduled for layoff unless they
were able to bump more junior employees in another classification. (See, GC Exh. 6-8). In
those two cases, Oechsner admitted, plant seniority within classification was the basis used to
determine who would be laid off. Thus, the only documentary evidence introduced at trial
demonstrates the use of seniority within classification as the basis for layoffs. KSM’s contention
that the contract calls for recall of those KSM considers the most qualified is uncorroborated by
any definitive examples, except for KSM’s reinstatement of strikers.
Respondent contends that its version of the contractual recall provisions is undisputed.
This is not so. Oechsner testified that the Union grieved the issue in the past and that the case
went to arbitration. No party saw fit to introduce into evidence a copy of the award or the
positions they took in the grievance proceedings. However, it does suggest that Respondent’s
view was not accepted by the Union. Moreover, although the matter was not part of the case
before me, the parties stipulated that a charge had been filed and a complaint issued and
pending over the “seniority order in which employees are to be recalled.” Given that, KSM’s
suggestion that its view of the correct way to apply the expired terms and conditions of
employment is unchallenged is not so.76

75This document was likely generated before the strike. This document was stipulated into
evidence without testimony that could provide greater context. Having said that, the stipulation
into evidence demonstrates its authenticity and does show the anticipated reliance on seniority.
76Finally, although the General Counsel does not take issue with it, I note that KSM’s
challenge to the General Counsel’s methodology for the order of recall was not mooted in its
answer to the compliance specification. Section 102.56(b) of the Board's Rules and
Regulations defines what must be included in an answer to a compliance specification. It states,
in pertinent part, as follows:
As to all matters within the knowledge of the respondent, including but not limited
to the various factors entering into the computation of gross backpay, a general
denial shall not suffice. As to such matters, if the respondent disputes either the
accuracy of the figures in the specification or the premises on which they are
based, the answer shall specifically state the basis for such disagreement,
setting forth in detail the respondent's position as to the applicable premises and
furnishing the appropriate supporting figures.
Obviously the General Counsel’s position that recall of strikers should have been by
seniority within classification was a significant basis for disagreement between the parties.
Respondent’s premise for the disagreement—its view that the appropriate method of recall was
based on the relative qualifications of strikers within a department should have been raised in
the answer. It was not.
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In summary, the General Counsel’s proposed order of recall for purposes of determining
backpay is based on a method at least sometimes used by Respondent to effectuate layoffs and
which objectively determines the order of recall for all strikers—whether they should have been
reinstated at the strike’s conclusion, or later as vacancies developed—based on the same
principle. By recalling strikers based on seniority within the employees’ respective
classifications, the General Counsel’s method ensures that the returning striker has the
qualifications for the position, as they are being recalled in every case to a position they
previously held. The striker may not be the “the most qualified” or skilled of all unrecalled
strikers for the position, but the striker has demonstrated through past experience on the job the
ability to perform that work in a reasonably competent manner. By contrast, Respondent
proposes to use a method that, quite apart from how Respondent describes it, allows KSM the
nearly unfettered discretion to choose who it reinstates, in a context where its choices are the
product of an admittedly unlawful refusal to reinstate strikers at the conclusion of the strike,
strikers KSM admits should have been reinstated by seniority. Respondent’s rationale for this
method, the expired collective-bargaining agreement, does not appear to offer support. In this
context, Respondent’s method of recall cannot be a reconstruction “what would have happened
in the absence of respondent’s unfair labor practices” because its choices are the product of its
unfair labor practices. It is a method that Respondent proffers because it reflects what
Respondent did and therefore its adoption would result in the minimum of liability for
Respondent. That is not a sound basis for determining, to the extent possible, the method
Respondent would have used to lawfully reinstate strikers had it not unlawfully denied
reinstatement to so many at strike’s end. Respondent’s contention that Board law does not
require the use of seniority and that absent discrimination “an employer can use any method of
recall” (R. Br. at 51) is beside the point. The issue is not whether Respondent’s recall method
could violate the Act if considered in a different legal context. The issue is whether, in the
absence of Respondent’s unfair labor practices, its recall method approximates what would
have occurred. For the reasons set forth above, Respondent’s method fails to meet that test. I
believe that the General Counsel’s is the more accurate and I see no reason to modify it.77
C. General gross backpay issues
1. Beginning date for backpay period
In the underlying decision in this case the Board found that the Union conveyed the
employees’ unconditional offer to return to work on October 5, 1997. In terms of the backpay

77I note that Respondent’s suggestion on brief (R. Br. at 57–58) that the Region had
previously agreed to Respondent’s backpay methodology and that it was later rejected by the
Region’s new compliance officer in 2004 is without record support.
I also note that the General Counsel has merged certain job classifications for purposes of
striker recall. Thus, General Factory 1, 2, and 3, are treated as one classification for purposes
of recall. This is also true with regard to the merging of weld set up A, and weld production A &
B into one recall list, but leaving weld set up B, weld utility, and weld spot A in their own
separate classifications for purposes of recall. There is some, but not a lot, of justification for
these choices set out in the record, and in some cases the choices may have backpay
implications, especially in the welding classifications. In view of the fact that neither the
Respondent nor the Union takes issue with the General Counsel’s grouping of these sub-
classifications (indeed, Respondent groups the classifications in similar fashion in R. Exh. 39), I
will not substitute another grouping. The matter is complicated and the record not extensive
enough on this matter for me to believe I could substitute a more precise formula.
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period for unreinstated strikers, the compliance specification alleges that (for employees for
whom work was allegedly available), the backpay period begins October 5, 1997.
Respondent disputes this, contending in its answer to the compliance specification that,
“[n]o backpay period should commence prior to October 12, 1997, the date one
week after the Union’s unconditional offer to return to work. The instantaneous
recall alleged by the Amended Compliance Specification is impossible, and the
Board’s long-standing practice is to require reinstatement within five (5) working
days, or one week.”
The answer to this, of course, is that Respondent did not try. The “Board’s long-standing
practice” of permitting 5 days to reinstate strikers is designed “to provide a reasonable
accommodation between the interest of the employees in returning to work as quickly as
possible and the employer's need to effectuate that return in an orderly manner.” Teamsters
Local 574, 259 NLRB 344 fn. 2 (1981). On the other hand, as the Board explained In Drug
Package Co., 228 NLRB 108, 114 (1977), enft. denied in part on other grounds, 570 F.2d 1340
(8th Cir. 1978):
in those instances [where] the employer has made it clear that it does not intend
to reinstate the unfair labor practice strikers . . . there is no reason to permit it 5
days in order to effectuate an orderly reinstatement and the Board will not, in this
circumstance, do so. The 5-day period is not to enable the employer to delay
reinstatement or to obtain 5 days during which he is not required to pay backpay,
but is in recognition of the practical difficulties he may face in reinstating the
employees, when he is not in a position to know exactly when they may seek to
return.”
“[I]f an employer has rejected, attached an unlawful condition to, or ignored an
unconditional offer to return to work, the 5-day period serves no useful purpose and backpay will
commence as of the unconditional offer to return to work.” Teamsters Local 574, supra;
Northern Wire Corp., 291 NLRB 727 fn. 5 (1988), enfd. in part, 887 F.2d 1313 (7th Cir. 1989);
Westpac Elec., 321 NLRB 1322 (1996). In such case the backpay obligation begin from the
date of the unconditional offer to return to work. Northern Wire Corp., supra; La Corte ECM,
322 NLRB 137 (1996); Newport News Shipbuilding, 236 NLRB 1637, 1638 (1978), enfd. 602
F.2d 73 (4th Cir. 1979).
In this case, Respondent offered reinstatement to only 3 strikers within the 5 days after
the unconditional offer to return. None of those was reinstated within the 5-day period.
Respondent failed to reinstate any employees within the 5 day, or even 7 days, following the
offer to return. Within the first 30 days, only 10 strikers were offered reinstatement, although 25
unprotected replacements continued working. Thus, the 5-day grace period the Board provides
to reinstate strikers “serves no useful purpose and backpay will commence as of the date of the
unconditional offer to return to work.”
2. Cessation of backpay for those accepting,
declining, or failing to respond to an offer of recall
In terms of the cessation of the backpay period, the General Counsel takes the position
that for employees who ultimately returned to work at KSM, the backpay period ended when the
employee actually returned to work, not on the date that a valid offer of reinstatement was made
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by KSM. For employees who declined an offer of recall, the General Counsel contends that the
backpay period ends on the date that the employee advised Respondent of the decision to
decline recall. These parameters are in accordance with settled Board precedent. Cliffstar
Transportation Co., 311 NLRB 152, 154–155 (1993); Southern Household Products Co., 203
NLRB 881, 882 (1973).78
I would note that the General Counsel also contends that for employees who failed to
respond to an offer of recall, generally the backpay period ends on the date set by Respondent
to provide a response to the offer of reinstatement. This issue was not litigated, or disputed by
any party, and Respondent’s letters usually sought a response within 3 business days of receipt
of the letter. Although there was some variation, typically these letters, from Oechsner,
requested that the employee “please contact me within three business days following receipt of
this letter to discuss your possible date of return.”
I doubt that this provides a “reasonable time” for an employee receiving an offer of
reinstatement to consider the offer before backpay tolls. See Cliffstar Transportation. Co., supra
(ten days reasonable); Esterline Elecs. Corp., 290 NLRB 834 (1988) (10 days reasonable).
Under current Board law an otherwise valid offer is not invalidated by the requirement of a short-
response time, but backpay will not toll until the passage of a “reasonable time.” Given the
absence of any litigation on this issue I will not adjust any backpay dates on this ground.79

78In its answer to the compliance specification Respondent’s pleadings indicate that
backpay should be tolled on the date Respondent mailed or conveyed by telephone an offer of
reinstatement. It does not pursue this argument on brief. In any event, I would reject such an
argument. Termination of the backpay period on the date a reinstatement offer is made—even
before it is received by the discriminatee—does not appropriately consider the circumstances of
the discriminatee, who, it cannot be forgotten, is in these circumstances on account of the
wrongdoing of the employer. Board law recognizes that employees may require time to decide
upon and accept or reject an offer of reinstatement. It is obvious then that the offer of
reinstatement cannot immediately stop the tolling of the backpay obligation. In terms of
backpay, the continuing adverse effects of the unlawful delay in reinstatement are tolled only
upon the employee’s return to work, not upon an offer of reinstatement. An employer cannot toll
its backpay obligation as of the moment reinstatement is offered.
79I note that under Esterline, a recall offer that “suggests that the offer will lapse if a decision
on reinstatement is not made by” response date is invalid. 290 NLRB at 835. The majority of
KSM’s letters offering reinstatement ask the employee to contact Oechsner if they want to be
considered for the opening or to discuss the possible date of return. These letters cannot
reasonably be understood as indicating that the offer will lapse if the employee does not
respond within the 3 days. However, unlike the majority of offers of reinstatement sent to KSM
employees, the offers sent by KSM to employees Curtis, Wetzel, Rettler, Sable, Stern, Eusch,
and Wiedeman stated “[i]f you are interested in returning to employment with KSM, you must
contact me within three (3) business days following receipt of this letter to discuss your date of
return” (letters to Curtis, Eusch, Rettler, Stern, Wetzel, Wiedeman), or “[y]ou must contact me
within three business days following receipt of this letter if you are interested in returning to
employment at KSM.” (letter to Sabel). Eusch, Wiedeman and Stern returned to work and
therefore the validity of the offers of reinstatement are not conceivably at issue. However,
Sable, Rettler, Wetzel, and Curtis did not. The offers put to them may be read to suggest that
they lapse in the absence of a response within the unduly short period allotted. However, in the
absence of any contention to this effect, any litigation on the subject, and a compliance
specification that pleads backpay closure dates for the above employees that appear to be
Continued
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3. Discriminatees’ right to recover expenses
for out-of-pocket interim health care premiums
The General Counsel alleges that the backpay owed employees includes the out-of-
pocket cost of health care premiums paid by employees for themselves and/or their families
during the backpay period that substituted for the KSM-provided insurance that would have
covered employees had they been reinstated. Respondent does not dispute that the Board
customarily includes reimbursement of substitute health insurance premiums in make-whole
remedies for fringe benefits lost. See, e.g. Aroostook County Regional Ophthalmology Center,
332 NLRB 1616, 1618 (2001); Cliffstar Transportation Co., supra at 166. However,
Respondent contends that in this instance the discriminatees are not entitled to recovery of
these costs, contending (R. Br. at 112–113) that the General Counsel unambiguously waived
the right to recover these costs. KSM’s contention is based on the October 3, 2006 Stipulation
and Partial Settlement Agreement, in which KSM waived the right to contest the underlying
Board Order in this case, and which was signed by the General Counsel, KSM, and the Union.
The stipulation provides:
“Respondent has not been able to reach agreement with the Board concerning
the liability, if any, owing under paragraph 2(c) of the Board’s September 28,
2001 Order (336 NLRB 133), as modified by its November 7, 2001 Order, which
includes the lost pay and out-of-pocket medical expenses allegedly incurred by
the strikers who were not recalled in a timely manner. Accordingly, Respondent
reserves the right to a hearing before an administrative law judge to determine
the amount due, if any, under paragraph 2(c) of the Board’s September 28, 2001
Order, as modified, and to present any other compliance-related issues except
those [relating to the resolved health care changes and bargaining positions
referenced above].”
Respondent argues that “[t]his language is unambiguous.” Respondent claims that “by
its terms,” the stipulation “provided that the only issues remaining for this proceeding are the
‘lost pay and out-of-pocket medical expenses allegedly incurred by the strikers who were not
recalled in a timely manner.’”
I think this is inaccurate. By its terms, the stipulation states that the parties failed to
reach agreement concerning liability owing under paragraph 2(c) of the Board’s Order “which
includes the lost pay and out-of-pocket medical expenses.” (emphasis added).
The issue comes down to the meaning of the word “includes.” Respondent’s contention
is that the stipulation’s description of subjects “include[d]” under paragraph 2(c) of the Board’s
order—the paragraph on which agreement was not reached—is intended to be an exhaustive
list, and not an illustrative one. I think it is possible to read the word “include” to exclude
everything else, but it is not the only, or the preferred, or the most likely meaning of the word.
The relevant definition for “include” from Webster’s Third New International Dictionary (1976)
1143—“to place, list, or rate as part or component of a whole or of a larger group, class, or
aggregate”—is at odds with Respondent’s contention. Fowler’s Modern English Language
Usage 387 (R.W. Burchfield ed., 3d ed. 1996) treats with the distinction between “include” and
“comprise,” and the discussion is relevant here. It is clear that R.W. Burchfield, at least, would
_________________________
based on the employer’s reinstatement offer, I think it would be unfair to Respondent to find that
the backpay period continues for Rettler, Wetzel, Sable, or Curtis, and I do not reach this issue.
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look down at his nose at wordsmiths who intended what Respondent claims it, the General
Counsel, and Union intended. According to Fowler’s:
“comprise is appropriate when the content of the whole is in question, and
include only when the admission or presence of an item is in question: good
writers say comprise when looking at the matter from the point of view of the
whole, include from that of the part. With include, there is no presumption
(though it is often the fact) that all or even most of the components are
mentioned; with comprise, the whole of them are understood to be in the list.”
Had the word “only” been appended to the word “include,” Respondent’s argument
would have more traction. But in its absence, Respondent has no other argument as to why I
should read a word that commonly describes “part of a whole or group” as meaning the entirety
of the whole or group. I do think it a possible reading, but nothing—nothing in the paragraph as
a whole, nothing in the stipulation agreement, and no extra-textual argument—suggests that
Respondent’s view is correct. The preceding sentence of the stipulation references the parties’
inability to reach agreement on liability under paragraph 2(c), hardly language that prefaces a
waiver. The subsequent sentence provides Respondent with an unqualified right to a hearing
on what it owes under paragraph 2(c), without any attempt to limit or define the scope of
paragraph 2(c) which, as noted, would be interpreted ab initio to cover out-of-pocket medical
expenses. Nor is there any suggestion or basis to infer in the remainder of the stipulation
agreement that the General Counsel waived the right to seek compliance with the full scope of
Section 2(c), with the exception of the unilateral changes in health care clearly referenced and
on which accord was clearly reached in the stipulation agreement. Finally, Respondent does
not make any type of argument relying on parol or any other evidence beyond the text of the
stipulation. It is noteworthy, in that regard, that the unrebutted testimony of the compliance
officer was that discriminatees in this case did not receive any money under the settlement for
lost benefits during their backpay periods. In this case, I think that the contention that the
stipulation indicates a waiver of the right to otherwise reimbursable health care premiums is
untenable. It is supported by nothing other than a dubious reading of the word “include” to
exclude anything not mentioned.80
D. Mitigation and offset issues
A discriminatee is entitled to backpay if he makes a "reasonably diligent effort to obtain
substantially equivalent employment." Moran Printing, 330 NLRB 376 (1999). In seeking to
mitigate loss of income, a backpay claimant is held only to reasonable exertions, not the highest
standard for diligence. The Board stated in Flannery Motors, Inc., 330 NLRB 994, 995 (2000):
A good faith effort requires conduct consistent with an inclination to work and to
be self-supporting and that such inclination is best evidenced not by a purely
mechanical examination of the number or kind of applications for work which
have been made, but rather by the sincerity and reasonableness of the efforts
made by an individual in his circumstances to relieve his unemployment.
The principle of mitigation does not require success; it only requires an honest, good
faith effort. Fabi Fashions, 291 NLRB 586, 587 (1988). Whether a claimant's search for

80Respondent’s argument suffers by comparison to the stipulation’s explicit waiver of the
General Counsel’s right to seek further remedy for the Respondent’s unilateral changes in
health care.
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employment has been reasonable is evaluated in light of all of the circumstances. Pope
Concrete Products, 312 NLRB 1171 (1993), 67 F.3d 300 (6th Cir. 1995); Cornwell Co., 171
NLRB 342, 343 (1968). It is measured over the backpay period as a whole, not isolated
portions thereof. First Transit Inc., 350 NLRB No. 68, slip op. at 1 fn. 8 (2007); Wright Electric,
334 NLRB 1031 (2001), enfd. 39 Fed. Appx. (8th Cir. 2002); IBEW Local 3 (Fischbach &
Moore), 315 NLRB 266 (1995). Any doubt or uncertainty in the evidence must be resolved in
favor of the innocent employee claimant and not the respondent wrongdoer. NLRB v.
NHE/Freeway, Inc., 545 F.2d 592, 594 (7th Cir. 1976); NLRB v. Miami Coca-Cola Bottling Co.,
360 F.2d 569, 572–573 (5th Cir. 1966). The employer does not meet its burden of showing an
inadequate job search by presenting evidence of lack of employee success in obtaining interim
employment or of low interim earnings. United Food & Commercial Workers Local 1357, 301
NLRB 617 (1991).
KSM challenges the mitigation efforts and conduct of certain employees and argues that
the alleged backpay set forth in the compliance specification should be limited as to these
employees. I consider each of KSM’s mitigation-related challenges herein. In addition, I
consider a few miscellaneous changes to the backpay figures advanced by the General
Counsel in his brief.
1. Failure to commence mitigation efforts (Laverne Jung & Norbert Jahn)
As discussed above, Norbert Jahn resumed work at KSM on October 20, 1997. The
record shows that KSM called Jahn on October 17—12 days after the unconditional offer to
return to work—and reached his mother who “stated Norb was ready and willing to get back to
work.” KSM told Jahn’s mother to have Jahn report to work October 20, and he did. Laverne
Jung resumed work at KSM on December 1, 1997. He received his offer of recall 2 weeks
earlier on November 14, in a letter from KSM dated November 12, offering him recall effective
December 1. The record suggests that Jung responded by phone the day he received the
letter, presumably accepting the offer of recall. (In the record, the notes of the conversation are
covered by a photocopy of Jung’s signed receipt of the offer of employment. See GC Exh. 4.)
Based on the compliance specification, neither Jahn nor Jung had interim earnings before they
returned to work. The General Counsel seeks backpay for the period October 5 through
December 1, 1997 for Jung, and October 5 through 20, 1997 for Jahn.
Respondent disputes the backpay alleged for each on the same grounds: at the hearing
both Jahn and Jung indicated in response to questioning that they did not look for interim
employment during the periods before they were recalled. On that basis, Respondent contends
that neither Jung nor Jahn is eligible for backpay as the record demonstrates that no effort of
any kind to mitigate their losses was made during this time.
In response to Respondent’s argument, the General Counsel cites a number of cases
that suggest that “a discriminatee is not required to seek work instantly,” but these cases all
make a different point. These cases involve circumstances where a discriminatee undertook
efforts to mitigate after a delay in seeking work. It is in that context that the Board has
repeatedly held “that an employee discriminatorily [terminated] need not instantly seek new
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work; rather the test is whether, on the record as a whole, the employee has diligently sought
employment during the entire backpay period."81 The issue raised by Respondent is different:
it involves discriminatees who did not seek employment at any time during their (short) backpay
period.
The General Counsel contends that the former strikers’ “obligation to mitigate their
damages did not begin for a reasonable amount of time after strikers would have realized they
would not be recalled and thus [that] they had an obligation to search for work.” (GC Br. at
115). While I think that the General Counsel’s proposed rule is too expansive, I do agree that a
rule of reason should apply. The rule of mitigation is rooted in the Supreme Court’s view “that
deductions [in backpay] should be made not only for actual earnings by the worker but also for
losses which he willfully incurred.” Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 198 (1941).
The Board’s discretion in these matters has as its purpose “not so much the minimization of
damages as the healthy policy of promoting production and employment.” Phelps Dodge, supra
at 199–200. These goals counsel against a rule that treats any delay in seeking work by an
employee as an opportunity to lessen damages owed by an unfair labor practitioner. That is not
the point. Rather, the issue is whether the discriminatee has removed himself from the
employment market and may be deemed to have willfully incurred losses.
As noted, Jahn was offered recall and indicated acceptance October 17, 1997, 12 days
after the strike ended. Jung accepted the offer of recall November 14, but was not asked to
report until December 1.82
After a 9 month strike, I believe (and Respondent, who bears the burden of showing
inadequate mitigation efforts, did not show otherwise), that Jahn and Jung reasonably may have
concluded (correctly, it turned out) that Respondent was preparing to recall them and that a
search for interim work in that short time period would be unnecessary. It should be
remembered in this regard that on or about October 16, the Employer solicited from all
employees their availability for recall, suggesting that recall would be forthcoming to those who
responded affirmatively. Jung answered affirmatively. This inquiry would have only encouraged
employees to believe that recall was likely and imminent.

81A. S. Abell Co., 257 NLRB 1012, 1015 (1981); Colorado Forge Corp., 285 NLRB 530, 538
(1987); C-F Air Freight, Inc., 276 NLRB 481, 481 fn. 3 (1985); I.T.O. Corp. of Baltimore, 265
NLRB 1322, 1323 (1982); Nickey Chevrolet Sales, Inc., 195 NLRB 395, 398 (1972), enfd. 493
F.2d 103, 108 (7th Cir. 1974), cert. denied 419 U.S. 834 (1974); Saginaw Aggregates, 198
NLRB 598 (1972) enfd. mem. 482 F.2d 946 (6th Cir. 1973); Keller Aluminum Chairs, 171 NLRB
1252, 1257 (1968), 425 F.2d 709 (5th Cir. 1970). See, Smyth Manufacturing, 277 NLRB 680,
681 (1985). (no tolling where discriminatee turned down first job offer and accepted subsequent
job offer although this delayed commencement of interim employment for 2 weeks).
82I note that the failure to seek interim employment while waiting for a job to start generally
is not a basis for tolling backpay. EDP Medical Computer Sys., 302 NLRB 54, 58 (1991) (no
tolling where discriminatee had to wait 6 weeks for new job to start and did not search for work
at all during backpay period), enfd. w/o op., 140 LRRM (BNA) 1072 (D.C. Cir. 1992);.see Smyth
Manufacturing Co., 277 NLRB 680, 681 (1985) (no tolling of backpay where discriminatee
turned down job offer in favor of an offer that commenced 2 weeks later). Grosvenor Orlando
Associates, 350 NLRB No. 86, slip op. at 6 (2007) demonstrates that it is not always the case
that a discriminatee who secures interim employment that does not commence for a few weeks
may cease searching for work. But in Grosvenor the delay between finding and assuming work
was longer than the 3-day (Jahn) and 2-week (Jung) lag involved here.
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This is one important distinction between this case and the Board’s recent decision in
Grosvenor Orlando Associates, 350 NLRB No. 86 (2007). In Grosvenor, a Board majority found
that striking employees who were discharged and who did not commence a search for interim
employment within 2 weeks after their discharge should have backpay tolled until such time as
they began looking for interim employment. In reaching this result, the Board emphasized that it
was not choosing a rule to be rigidly applied, but rather, was assessing the circumstances in
that case. Notably, the Board in Grosvenor found that “there is no evidence that the
Respondent engaged in any conduct that would warrant any optimism about the prospect of
reinstatement and thus justify a further delay in the initial search for interim work beyond a 2-
week period.” Grosvenor, supra at slip op. 4. To the contrary, in Grosvenor, the Board found
that the strikers’ backpay period began when the Respondent sent a letter to the strikers that
effectively discharged the strikers. This affirmative action by an employer to discharge striking
employees obviously suggests that reinstatement is not in the offing. It is the opposite of
suggesting the possibility of reinstatement. The instant case is very different. Here, at strike’s
end Respondent issued a letter to each former striker seeking information “concerning your
personal intention to be considered for recall.” An employee who had not sought or not
obtained interim employment during the strike would, in view of Respondent’s letter, be likely to
delay a search for interim employment after the strike in anticipation of recall. The strike ended
on October 5, and it would have been a reasonable presumption of employees, particularly in
view of Respondent’s October 16 correspondence, that reinstatement was in the offing.
The question, in my view, is whether it is reasonable to conclude, looking at Jahn and
Jung’s limited backpay period as a whole, whether the failure to seek work during this initial
period after the strike proves an inclination not to mitigate damages. Under the circumstances,
employees recalled in this time period cannot reasonably be said to have willfully incurred wage
losses by not seeking work after the strike. They did not demonstrate a commitment to idleness
and lack of productivity which Board policy is directed towards deterring. I do not limit Jung or
Jahn’s backpay for failure to mitigate during the time before they were reinstated.
2. Adequacy of mitigation efforts (Hans Eusch and James Malson)
Respondent contends that discriminatees Hans Eusch and James Malson failed to
engage in a reasonably diligent search for interim employment, and their backpay should be
limited accordingly. Respondent also contends that Eusch’s backpay should be tolled because
Eusch turned down an offer of employment during his backpay period. Each of these
discriminatees testified to seeking work during the backpay period. However, KSM contends
that their efforts did not satisfy the Board’s standards and that backpay should be limited.
Hans Eusch. Eusch failed to work during his backpay period, which, according to the
specification began on December 1, 1997 and ended when he returned to work at KSM on
February 8, 1999. Eusch testified that he applied for ten jobs during this period, beginning in
January 1998. Eusch did not apply for any jobs in December 1997. Eusch testified credibly that
based on Respondent’s questionnaire soliciting interest in reinstatement he believed he would
be recalled soon and “that’s the reason why I didn’t look for work during that period, because I
didn’t want to start a job and then have to quit right away.” Eusch applied for no jobs after
August 1998 until January 1999 when he applied for three positions. However, he did have an
interview in October for a job he applied for in the spring of 1998. Eusch was offered
employment at one industrial facility, Tecumseh Products, but the position offered was an
unskilled general laborer position, at significantly less pay and without other benefits that Eusch
enjoyed at KSM. Although it is not clear that Eusch was offered employment at Maysteel, he
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was told by Maysteel that he would have to resign from KSM in order to accept a position there
and “guarantee that if I was recalled to work for KSM that I would stay at Maysteel.”
While Eusch’s search for work cannot be called zealous, such efforts are not required.
As referenced, supra, his failure to succeed in obtaining interim employment is not a basis for
demonstrating a lack of effort to obtain interim employment. Aneco, Inc., 333 NLRB 691 (2001),
enfd. in part, 285 F.3d 326 (4th Cir. 2002). His failure to seek work in December 1997 was
attributable to his reasonable belief—based on KSM’s solicitation of employees’ interest in
reinstatement—that he would soon be offered reinstatement at KSM.83 In any event, a delay in
initiating job search is not to be held against an employee, whose efforts must be considered in
the context of his efforts throughout the backpay period. See, e.g., Midwestern Personnel
Service, 346 NLRB at slip op. at 2 (sufficiency of discriminatee's efforts to mitigate backpay are
determined with respect to the backpay period as a whole and not based on isolated portions of
the backpay period); Colorado Forge Corp., 285 NLRB 530, 538 (1987) and cases cited therein
(discriminatee not required to instantly seek interim employment). From January through
August 1998 Eusch applied to a variety of positions. He credibly explained why he turned down
the position offered to him at Tecumseh, which clearly cannot be considered substantially
equivalent employment given the significant difference in pay (nearly a 1/3 less pay) and
benefits, and skill (a general laborer position), from his position at KSM. Minette Mills, Inc., 316
NLRB at 1010 (“it is well established that a discriminatee's obligation to mitigate an employer's
backpay liability requires only that the discriminatee accept substantially equivalent
employment”).84 Similarly, Maysteel’s insistence that Eusch resign from KSM in order to work
there provides sufficient grounds for him not to take a position there. Eusch made no
applications during the entire fourth quarter of 1998. But Board precedent does not reject
backpay for discriminatees just because they ceased filing applications for a quarter. As the
Board stated in Cornwell Co., 171 NLRB at 343:
A discriminatee who has otherwise made reasonable efforts to seek out new
employment is not required in each specific quarter to repeat job applications
which from her past efforts she knows are foredoomed to futility in order to

83As discussed, supra, Respondent’s solicitation of employees’ interest in returning to
employment after the strike ended distinguishes the circumstances here from those in
Grosvenor, supra, where employees were discharged for striking. In Grosvenor, the Board
found that there was “no evidence that the Respondent engaged in any conduct that would
warrant any optimism about the prospect of reinstatement,” and tolled discriminatees’ backpay
after a 2-week delay in searching for work. Here, 2 weeks after the strike ended Respondent
was soliciting employee interest in returning, and Eusch relied upon this and anticipated he
would soon be returning to work.
84KSM points out that Eusch was willing to seek other noncomparable work, such as work
as an insurance adjuster, that was more unlike his KSM tape operator position than the
Tecumseh general laborer position. An unwillingness to accept a physically arduous general
laborer position, while seeking work as an insurance adjustor, is not hard to fathom. In this
regard, there is, and should be, an asymmetry in a discriminatee’s mitigation obligations: to
satisfy his duty to mitigate, an employee is required to accept only substantially equivalent
employment, but may look for and accept work more broadly. Fugazy Continental Corp., 276
NLRB 1334, 1336 (1985), enfd. 817 F.2d 979 (2d Cir. 1987). The question is whether the job
search was conducted in good faith, with sincerity and an inclination to work and be self-
supporting. In the case of Eusch, KSM has failed to prove otherwise.
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protect her claim of backpay for that particular quarter. Rather, the entire
backpay period must be scrutinized to determine whether throughout that period
there was, in the light of all surrounding circumstances, a reasonable continuing
search such as to foreclose a finding of willful loss.
After submitting no new job applications in the 4th quarter of 1998, Eusch submitted
three new applications for employment in January 1999. I do not disagree that there are
discriminatees who more actively made efforts to seek interim employment. However, it is also
true that Respondent did not establish that there was plentiful interim work available for
employees with Eusch’s background (her worked as a tape operator). I cannot find that Eusch’s
efforts were so inadequate as to suggest that during his backpay period he was not engaged in
“a reasonable continuing search such as to foreclose a finding of willful loss.”85
James Malson: Malson’s backpay period is October 5, 1997 to April 22, 1998, when he
returned to work for KSM. Malson did not obtain interim employment during his backpay period.
Malson testified that he applied to a significant number of jobs during his backpay period
including numerous skilled welding jobs beginning in January 1998. Respondent questions
Malson’s testimony because his NLRB work search form did not reflect all of the applications to
which he testified. However, Malson credibly explained the discrepancy. He testified that in
preparing his NLRB form, submitted in 2002, 4 years after his return to employment at KSM, his
wife simply copied from his work search forms supplied to state unemployment compensation
authorities. Those forms only covered the period for which Malson received unemployment
compensation, which was October into January 1998. Malson testified that he did not have
accurate records demonstrating his job search for the period January through April 1998.86 I
found Malson’s testimony credible in this regard and I accept his explanation. Moreover, “[t]he
receipt of unemployment compensation pursuant to the rules regarding eligibility constitutes
‘prima facie evidence of a reasonable search for interim employment.’” Taylor Machine
Products, 338 NLRB 831, 832 (2003) (quoting Birch Run Welding, 286 NLRB 1316, 1319
(1987), enfd. 860 F.2d 1080 (6th Cir. 1988)) enfd. 98 Fed. Appx. 424 (6th Cir. 1987).
Respondent also contends that acceptance of Malson’s explanation demonstrates that
from the strike’s end in October through December 1997, Malson did not apply skilled welding
positions but rather, lower skilled positions including entry level service sector jobs. I think that
under the circumstances, this observation is inadequate to prove that Malson did not make a
reasonably diligent effort to mitigate his backpay losses. As noted, supra, his effort must be

85It is useful to compare Eusch’s search to some cases where the Board has found the
discriminatee’s search inadequate. In Glenn Trucking Co., 344 NLRB No. 41 (2006), the Board
found that a discriminatee had failed to be reasonably diligent in seeking to mitigate where he
failed to seek any employment after the first few months of the backpay period and went for
nearly a year with no evidence of job search efforts. In Moran Printing, Inc., 330 NLRB 376, the
Board an employee had failed to mitigate where he signed the union’s “out-of-work” book only
twice and gave discredited testimony about his job search efforts. Eusch’s efforts compare
favorably with these examples.
86Employees are not disqualified from backpay "because of their poor record-keeping.”
Allegheny Graphics, 320 NLRB 1141, 1145 (1996), enfd. 113 F.3d 845 (8th Cir. 1997);
Midwestern Personnel Services, Inc., 346 NLRB at slip op. at 5 (“The Board has ruled a
discriminatee’s inability to recall the names of places they searched for work or to maintain
records of such after a long period of time does not establish a failure to mitigate damages”),
citing United States Can Co., 328 NLRB at 356.
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evaluated based on the total backpay period, not just a particular quarter. As also noted supra,
an employee is not required to begin his job search instantly with the start of the backpay
period. Here Malson did instantly begin a job search and actively sought work during the entire
backpay period, but waited 3 months into his job search, until January 1998, to look for high
skilled, substantially equivalent work. Prior to that time, Malson’s search appears to have been
for jobs with less skill and likely involving more turnover and less permanence than more highly
skilled welding jobs. Given the uncertainty surrounding KSM’s recall intentions after the strike—
uncertainty generated by KSM—Malson’s job search, viewed over the course of the backpay
period, does not warrant a reduction in backpay for failure to take reasonable mitigation efforts.
3. Resignations from interim employment
(Thomas Cooper, Lawrence Wetzel, Allen Curtis, Anthony Bannenberg)
Respondent contends that discriminatees Cooper, Wetzel, Curtis, and Bannenberg
failed to properly mitigate based on the fact that they obtained but then quit interim employment
during their backpay periods.
As KSM points out, it is established Board policy that a discriminatee is deemed to have
willfully incurred loss of income by voluntarily relinquishing interim employment "without
compelling or justifying means." Knickerbocker Plastic Co., 132 NLRB 1209, 1212 (1961).
However, it is equally well settled that a discriminatee does not incur a willful loss of earnings by
quitting an interim job for justifiable reason. Florida Steel Corp., 234 NLRB 1089, 1092, 1094–
1095 (1978). It is also established Board precedent that a discriminatee “is under no obligation
to retain non-equivalent employment, once secured, regardless of the conditions under which
the employee was required to work.” Churchill’s Supermarkets, 301 NLRB 722, 725 (1991).
Generally, in assessing whether the discriminatee has failed to adequately mitigate, the Board
will look to the reasons that an employee has given up an interim position. “When a backpay
claimant quits interim employment, ‘the burden shifts from the Respondent to the Government
to show that the decision to quit was reasonable.’” First Transit Inc., 350 NLRB No. 68, slip op.
at 2 (quoting Minette Mills, Inc., 316 NLRB at 1010); Parts Depot, 348 NLRB No. 9, slip op. at 3.
Thomas Cooper: Cooper worked for KSM in a maintenance position prior to the strike.
General Counsel alleges that his backpay period runs from October 5, 1997, through February
16, 1998, when he returned to work at KSM. In September 1997, Cooper began working at a
foundry called Craft Cast, where he earned the same amount as he had at KSM.
Within 60 days, in November 1997, Cooper quit his job at Cast Craft. In its brief, KSM
quotes Cooper saying that he quit Cast Craft because “it wasn’t fun” and argues, correctly, that
finding work at a foundry not to be “fun” does not establish good cause for quitting interim
employment. Respondent cites Cooper’s concerns about “poor lighting and glue being kept in a
refrigerator” and states that while these “may justify a complaint to a manager, they are not
conditions that justify a resignation.” Respondent offers a startling unfair summary of Cooper’s
testimony. I found Cooper’s testimony far more compelling than that. Asked why he quit,
Cooper testified, “It was an unhealthy and very dangerous place to work.” Asked if he had any
reason at the time of his resignation to believe that his Craft Casters employment would have
ended prior to being recalled at KSM, Cooper answered: “Well, I kind of thought I'd probably die
there. It was a dangerous place to work if that answers your question.” Given the opportunity
on cross examination to explain his concerns, Cooper testified:
Well, it was a poorly ventilated, poorly lit facility. Very crude facility.
There was a mind-set there about, you know, safety was not -- conditions and
safety were not -- you know, were not important. . . .
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[T]the atmosphere in the building was always really bad. Poor ventilation
like I said. It is a foundry melting metal and what not. There was electrical
problems with equipment, lighting. . . .
Probably one of the most glaring things was in the cafeteria. They had a
small cafeteria, you know, with vending machines and tables and a refrigerator
where people could put their lunches and in this refrigerator they also kept
industrial chemicals. Super Glue and sometimes unmarked vessels and I just
thought that was just so -- you know, so dangerous because, you know, having
people access the chemicals that should be stored in a hazardous lockup. That
was, you know, just a glaring example.
Facility compressor had no dryer on it so it wasn't uncommon if you were
to take an air hose and blow it water would come out as if it was a garden hose
and, you know, it would do that until the line would purge itself and I thought that
was -- that was just so dangerous. I'm surprised people haven't -- I didn't see
anybody get hurt with that condition. The foundry was -- I always thought that
was a particularly dangerous because they used ladles that are raised by a hoist
that were -- these hoists were never maintained properly. On occasion I would
have to repair stuff but they weren't interested -- they were interested in getting it
repaired and not about safety factors, the condition of cables that hold ladles.
Just myself having to repair it was a dangerous thing. They had no -- you know,
I'm on a ladder, you know, with no help and on a high ladder. They didn't -- I
would ask can somebody hold the ladder while I'm up there and, you know, they
couldn't spare anybody. There was always an excuse. It was just -- yeah, it
wasn't fun.”
I credit Cooper’s unrebutted, unchallenged testimony, and I find that his resignation was
reasonable and not grounds for limiting his backpay. Parts Depot, Inc., 348 NLRB No. 9, slip op
at 3 fn. 16 (employee not required to accept jobs posing increased exposure to environmental
hazards or more onerous conditions).
Lawrence Wetzel: Lawrence Wetzel worked as a tape operator prior to the strike. His
backpay period began October 5, 1997 and ran to February 8, 1999, when he declined KSM’s
offer of recall. During the strike Wetzel began working at Mayville Engineering. In October
1997 he left Mayville, which was beginning to lay off employees, and began working with
ArcRon. In a few months he quit ArcRon and took a job with General Metalworks. Respondent
does not challenge these resignations as each resulted in Wetzel earning as much or more as
he had at Mayville. However, in September 1998, Wetzel left General Metalworks and took a
job with the West Bend School District where he worked full time until sometime after his
backpay period ended in February 1999. Wetzel took a $4-an-hour pay cut when he left
General Metalworks to go to West Bend School District to work as a custodian. Wetzel offered
two reasons for leaving General Motors to go with the West Bend School District. One was that
West Bend was “closer to home” and the other reason was that “I was thinking about getting
ready to retire.” West Bend School District offered a retirement plan from the state employee
retirement plan, a plan with which Wetzel, based on prior employment as a state employee,
already had retirement credits. Wetzel testified that in terms of a retirement fund or pension “I
had nothing at General Metals or any of the other places.” Respondent contends that Wetzel’s
shorter drive to work in the West Bend school does not amount to a reasonable basis for
quitting his employment, but rather, constitutes a personal convenience, preference, or
accommodation that Respondent should not have to pay for. Under the circumstances, I agree.
It is the General Counsel’s burden to demonstrate the reasonableness of Wetzel’s decision to
resign from General Metalwork. The record offers nothing that would establish the onerousness
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of the added distance to General Metalworks. The record indicates that General Metalworks
was 10 miles farther than KSM (one way) for Wetzel, but indicates only that the West Bend
District job was closer to his home than General Metalworks, but not how much closer. Given
the geography, it could not have been much and without any record evidence demonstrating
why the small added distance posed a significant problem for Wetzel, I agree that this rationale
is inadequate to justify the change in jobs.
However, Wetzel’s interest in finding interim employment that would allow him to accrue
and ultimately obtain a pension upon retirement is not so easily dismissed. Indeed, based on
the testimony, I find that this was the primary and most plausible motive for Wetzel’s decision to
leave General Metalworks. Respondent contends that “[q]uitting because one employer has a
retirement program that is more preferable also constitutes quitting for personal preference or
accommodation.” I do not agree with that. Pensions are deferred compensation and Wetzel’s
decision then, was governed by an entirely reasonable desire to increase this important form of
compensation. Respondent’s concern is not with the reasonableness of Wetzel’s decision, but
with the attendant reduction of wages that would offset its backpay obligation to Wetzel.
Wetzel’s increase in pension that ultimately resulted from his move to the West Bend District job
does not serve as an offset to wages owed by KSM on account of its unfair labor practices.
John T. Jones Construction, Inc., 349 NLRB No. 119 (2007). Whether it could serve as an
offset to KSM’s obligation to provide 401(k) contributions on Wetzel’s behalf as a component of
gross backpay obligation is a question I consider infra. But it would seem antithetical to the
public policy concerns underlying the mitigation requirements to discourage discriminatees from
switching interim employers in order to provide for their long time retirement needs. It is
appropriate to recall that KSM’s unlawful conduct was at the root of the dilemma faced by
Wetzel. He was forced to consider his retirement situation without knowing when KSM intended
to recall him, and without, in fact, being able to know what KSM’s legal obligations for backpay
and 401(k) retirement contributions would be. Wetzel cannot be faulted for taking retirement
income issues into account when he made interim employment choices. I find that his decision
to leave General Metalworks was based primarily on this consideration and that it was justified
and reasonable, and not grounds for limiting his backpay.
Allen Curtis: Allen Curtis worked as a painter at KSM prior to the strike. His backpay
period is alleged to be from February 13, 1998 to February 3, 2004. However, the General
Counsel concedes that Curtis’ backpay was tolled between January 15 and May 15, 2003 when
Curtis attended school fulltime and was not available for employment. Curtis was employed
during the strike at Tramont, and stayed there until August 1998 when he took a position with
Liftco, a family owned business that sold and rented scissors, lifts, and booms. At Liftco, Curtis
was paid primarily based on “piece rate,” and estimated that his average earnings were
between $18 and $22 per hour, significantly more than the $12 an hour he had earned at KSM.
Curtis remained at Liftco until June 2000. At that time he left Liftco and took a job at Cummins.
There he earned approximately $12 an hour. Curtis testified that he left Liftco because he found
a painting job, the kind of work he had done at KSM and “the kind of work that I really enjoy
doing,” and it was closer to his home. About a year before leaving Liftco, Curtis had moved
from the Milwaukee area to Harrisville, Wisconsin, to take advantage of cheaper housing and
land prices there. Curtis continued to work at Liftco for a year, driving the 100 miles each way
to work and back. However, Curtis denied that the distance to Liftco played a decisive role in
his jobs switch: “[T]he reason I left Liftco was not because of the distance, because that didn’t
really play into it. But, the work that I did [at Liftco], I had to work outside a lot, and during the
winter months, all my equipment would freeze on me.” At KSM Curtis had worked inside
painting. Curtis worked at Cummins until the facility closed and moved to Mexico in August
2002. Curtis then attended school for approximately a year for so, but left school to take a job
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at Phoenix Coaters during the 4th quarter of 2003. He remained employed there at the time of
the hearing, many years after the closure of his backpay period.
KSM contends that Curtis incurred a willful loss of earnings when he left Liftco and took
a lower paying job at Cummins. The problem with this argument is that well-compensated
though it may have been, Liftco—a family owned business that sold and rented scissors lifts and
booms—was a very different type of work than being a painter at KSM. Curtis left Liftco to take
a painting job, work that he “loved” and like the work he performed at KSM. Under Board
precedent, a discriminatee may quit an interim position for any reason if the position is not
substantially equivalent to the unlawfully denied position. Here, Curtis quit to take a position
that was more equivalent to the job he had at KSM. Moreover, the Liftco position, though well
paid, was also more onerous, requiring work outside in the (Wisconsin) winter. This further
establishes the justification for the change. Parts Depot, 348 NLRB No. 9, slip op at 3 fn. 16;
Lundy Packing Co., 286 NLRB 141, 144 (1987) (“There is no duty to remain if the interim job is
substantially more onerous . . .”), enfd. 856 F.2d 627 (4th Cir. 1988); Lord Jim’s, 277 NLRB
1514, 1516 (1986) (“There is no obligation to remain on a job that is substantially more onerous
than the one from which that person was discharged”).
Anthony Bannenberg: During the strike Bannenberg began working at Performance
Alloys, but quit in August 1998 to work at Alto-Shaam for lesser pay than he was earning at
Performance Alloys. Respondent contends that Bannenberg’s decision to quit Performance
Alloys and take a lower paying job at Alto-Shaam has not been shown to be justified under
applicable Board precedent. However, Bannenberg quit Performance Alloys and began working
at Alto-Shaam 7 months prior to the March 1, 1999 commencement of his alleged backpay
period. The General Counsel seeks no backpay for him during the time he worked at
Performance Alloys (or for 7 months thereafter) and he had no damages that he was under any
obligation to mitigate. Accordingly, I reject Respondent’s contention.
4. Discharges from interim employment
(Brandon Hottenstein, Douglas Wiedeman, Jesus Rodriguez, Gordon Sabel)
The above-named employees were discharged from interim employers at various times
during their backpay periods. Respondent advances the position that because these
employees were discharged due to misconduct, their loss of earnings was willful. Respondent
contends that the discharges should be treated as willful loss of income by the discriminatees
and the income they would have received but for the discharge imputed to the discriminatees
and used as an offset to gross backpay.
Contrary to the standard proposed by Respondent, Board precedent is clear that a
discharge, without more, is not sufficient to constitute a willful loss of employment. It is the
employer’s burden to establish that the discriminatee “engaged in deliberate or gross
misconduct” in order to show a willful loss of employment. Pie Nationwide, 297 NLRB 454,
454–455 (1989); Cassis Mgtmt. Corp., 336 NLRB 961, 966–967 (2001) (discharge constitutes
willful loss of earnings only when shown to have been caused by “deliberate and gross
misconduct which is so outrageous that it suggests deliberate courting of discharge”); Ryder
System, 302 NLRB 608, 610 (1991) (“A respondent must show deliberate or gross misconduct
on the part of the discharged employee in order to establish a willful loss of employment. . . .
Elmore may have missed several scheduled deliveries, but he committed no offense involving
moral turpitude and his conduct was not otherwise so outrageous as to suggest deliberate
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courting of discharge. Without such proof, Elmore's discharge from ATS will not serve as a basis
for tolling his backpay”) (footnotes omitted), enfd. 983 F.2d 705 (6th Cir. 1993).87
With regard to each of the discriminatees at issue, there has been no showing that their
discharges were the result of deliberate or gross misconduct or conduct so outrageous as to
suggest a deliberate courting of discharge. Hottenstein was terminated from an interim position
after 2 weeks for reporting to work late one day. Consistently showing up for work late is clearly
misconduct, and is a dischargeable offense in nearly every position, but it is hardly gross or
outrageous misconduct, and there is no evidence that Hottenstein’s discharge, occurring
because of one tardy report to work, was deliberate on his part. Sorenson Lighted Controls,
297 NLRB 282, 288 (1989).
Wiedeman worked at Troyk Printing from August 1999 to May 2001, when he was
terminated. The employer told him it was for “misconduct.” Wiedeman said it was for “bad work
habits,” and explained that his performance suffered because “the guy I was working with[,] I
didn’t get along with him too well. And then my work ability was getting worse and worse,
‘cause I couldn’t work with the guy. And so then I was terminated then.” The cause of
discharge is obviously vague, but it is Respondent’s burden to establish gross, deliberate, or
outrageous misconduct, and there is not a hint of it. Ernst & Young, 304 NLRB 178, 180 (1991)
(“The issue presented is whether Bloom's conduct in either or both jobs amounted to a willful act
by Bloom which resulted in her discharge from Cohen and Seidman. The Board has repeatedly
held that a discharge based upon poor work performance does not constitute a willful loss of
earnings”); Barberton Plastics Products, Inc., 146 NLRB 393, 396 (1964) (no loss of backpay for
discriminatee discharged from interim employment for unsatisfactory performance), enf’t. denied
on other grounds, 354 F.2d 66 (6th Cir. 1965). Wiedeman obtained employment as a security
guard in early 2002 but was terminated in August 2003 for attendance problems that Wiedeman
ascribed to his truck breaking down. This discharge also was not caused by gross, deliberate,
or outrageous conduct.
Jesus Rodriguez began working at Milsco Manufacturing during the strike. He worked at
Milsco until terminated in 1998. When in 1998 is unclear. Rodriguez agreed with the
suggestion of Respondent’s counsel that he worked at Milsco until the end of 1998. However,
the General Counsel seeks no backpay for Rodriguez from August 1, 1998 to January 15, 1999,
pleading that Rodriguez was incarcerated and unavailable for work during this period.
Respondent contends that Rodriguez lost his job at Milsco as a result of his conviction and
incarceration. If this is so, it is not proven in the record. Rodriguez’ unrebutted testimony is that
these problems postdated his termination from Milsco for absenteeism, and that after his
termination from Milsco he continued working at another job until his incarceration. There is no

87Respondent cites Associated Grocers, 295 NLRB 806 (1989) for the proposition that an
employee discharged from an interim employer may be deemed to have experienced a willful
loss of earnings, a proposition that is not in dispute. But this is not a standardless inquiry. The
basis of the dischargeable misconduct must show a willful loss of employment, or at least a lack
of concern with maintaining employment. In Associated Grocers, supra, the discharged
employee, who had been reinstated to his primary employer (but not to a substantially
equivalent position), was terminated for failure to meet production standards after repeated
reprimands, a suspension, and failure to voluntarily retake a mandatory forklift certification test
that he had failed. Under these circumstances, the Board imputed constructive interim earnings
to the employee for the remainder of his backpay period.
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evidence in the record regarding that job, which Rodriguez identified as Larry’s Upholstery, and
which may have been the second part-time job that Rodriguez said he maintained while working
at Milsco. Respondent does not assert that the loss of the job at Larry’s Upholstery constituted
a willful loss of earnings. Respondent has not proven its claim that Rodriguez’ legal problems
led to his termination from Milsco for absenteeism. In any event, Respondent does not contend
(nor offer any cases to support a contention) that the Board should concern itself with the
underlying cause of an employee’s absenteeism in evaluating whether the discharge constituted
a willful loss of earnings. As set forth, supra, a discharge for absenteeism does not constitute a
willful loss of earnings. Sorenson, supra.88

After the strike, unreinstated striker Gordon Sabel took a position with Matenaer
Corporation as a coil press operator. In late1998, Sabel was discharged when the company
blamed him for a die that chipped and broke. Sabel testified that it was another employee that
set up the machine wrong causing the die to break, but that was blamed for it because he had
been told to set up the machine. Based on the evidence in the record, there is nothing gross,
deliberate, or outrageous conduct about Sabel’s conduct. See, e.g., Cassis Mgmt. Corp., 336 at
966–967 (discharge for losing company payroll in auto accident does not constitute willful loss
of earnings); Ernst & Young, supra. Income Sabel would have earned but for the discharge will
not be used as an offset to his backpay.
5. Concealment of interim earnings (James Kollenbroich)
Respondent contends that James Kollenbroich intentionally concealed interim earnings
and should be denied backpay because of it. The Board’s policy is to deny gross backpay for
each quarter as to which a claimant willfully concealed interim earnings. American Navigation
Co., 268 NLRB 426, 428–429 (1983).
As discussed, supra, after the strike, Kollenbroich was recalled to a second shift
position at KSM in May. His prestrike position had been on first shift and after a couple of
weeks he and Oechsner agreed that he would relinquish the second shift job but remain on the
recall list. He stopped working at KSM on June 2, 1998. During cross examination,
Kollenbroich testified that after he left KSM he performed “side jobs, painting and stuff like that”
for “cash” until he secured employment in August 1998 with a company called Key Logo.
Counsel for Respondent then asked Kollenbroich,
[Q] [I]s there a reason that you did not report those -- the money that you
made on these side jobs to the people at the Labor Board?
A Well, this was cash.
Q Oh, oh, yah. Okay.

88I note that there is no suggestion that Rodriguez’ legal problems were related to or
occurred at his work. Discharges for absenteeism are common and there is usually an
underlying cause, usually mundane, occasionally sordid, often debatable. Simply as a matter of
practicality and efficiency, I do not believe that in a compliance specification hearing the Board
would be inclined to permit litigation over the cause of absenteeism leading to a discharge.
Respondent, however, was not limited in that regard here. However, Respondent failed to
prove that Rodriguez’ discharge from Milsco for absenteeism was attributable to anything other
than “missing work.”
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MR. KINNEY: I don’t have any more questions.
By itself, this would be insufficient to demonstrate intentional concealment of earnings.
There is no evidence that Kollenbroich was told by the Region personnel to report cash
earnings to them. There is no evidence regarding the instructions on the form (if any) that he
used to report interim earnings to the Region. There is no evidence that Kollenbroich knew he
was supposed to report such earnings. I do not believe it can be assumed that he knew this.
These questions were not asked. If that is all there was, I would be inclined to find that the
allegations of intentional concealment were unproven. But I was impressed, negatively, by the
change in Kollenbroich’s testimony on cross examination, in which, after reconfirming his initial
testimony, he claimed he had been confused and the reference to cash jobs was to work
performed while on layoff prior to the strike.89
For the reasons set forth (in the relevant footnote) I do not credit Kollenbroich’s
disavowal of his initial testimony. This was an attempt to conceal interim earnings, although not
a premeditated one. I sensed that Kollenbroich realized he had, to everyone’s surprise,
admitted earnings no one else had known about, and feeling the pressure of questioning, he
tried to take it back. It may be more proof of the adage that its not the crime but the cover up
that gets you, but it added an unsavory cast to the entire incident. There is ample room for
debate about the best policy here: it is ironic that Kollenbroich’s credited testimony is the only
evidence that there was unreported income, and his uncredited testimony the only evidence of
concealment. Perhaps we discourage candor by penalizing a discriminatee who has come
forward to divulge interim earnings, albeit late and albeit inconsistently. But viewing the incident
in its totality my considered view is that Kollenbroich attempted to intentionally conceal his cash
earnings earned during the summer of 1998. It is clear that the remedy for intentional
concealment of backpay is to refuse to permit the wage component of backpay in quarters

89I credit Kollenbroich’s testimony that he worked jobs for cash in the summer of 1998 over
his ultimate disavowal of this testimony (at first, he reconfirmed it) when the General Counsel
questioned him on this point during redirect examination. On brief, the General Counsel
contends that Kollenbroich was an elderly witness, subject to confusion, and that he had simply
become confused and admitted to side jobs that were actually performed years before, during a
prior layoff from KSM. Kollenbroich appeared older than some witnesses, but younger than
others, and I do not think his age played much of a role here. The hearing required witnesses to
provide testimony covering periods from up to 10 years earlier and that can be difficult. But the
balance of his testimony suggested to me that Kollenbroich understood the questions posed to
him and did not suffer from any undue confusion. He made some mistakes on dates (as many
witnesses did), but this testimony was maintained until it became apparent, based on General
Counsel’s redirect examination and the attendant objections and colloquy surrounding it, that he
had, as Respondent aptly puts it on brief, “given up too much information.” It should not be
forgotten that Kollenbroich’s admission came in the course of testimony specifically focusing on,
discussing, and relating to his 2 week trial reinstatement at KSM. His testimony about the side
jobs was also directly linked in time by Kollenbroich to the period before he began working at
Key Logo. He indicated that he ceased doing the side jobs because he found the position at
Key Logo. This suggests, very strongly I believe, that Kollenbroich’s testimony about cash work
was directed to the summer of 1998. General Counsel called Kollenbroich’s wife to testify as a
rebuttal witness. Even assuming, arguendo, that she testified accurately about all she knew, I
give her often vague and halting testimony little weight. She may well have been unaware of
her husband’s side work during that period.
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where income has been intentionally concealed. Parts Depot, 348 NLRB No. 9, slip op at 2-3. I
will deny backpay for the 2nd and 3rd quarters of 1998.90
6. Miscellaneous Adjustments to Backpay
(Brandon Hottenstein, Douglas Wiedeman, Lawrence Wetzel, Alan Curtis)
In their briefs, the General Counsel and/or Respondent propose further miscellaneous
refinements to the compliance specification. These changes propose to alter the backpay for
four employees: Hottenstein, Wiedeman, Wetzel, and Curtis. In each case the proposed
change is based on inadvertent errors, or evidence or information discovered during the
hearing, and thus, these matters are not reflected in the compliance specification.
Brandon Hottenstein: At the hearing, the parties learned that Hottenstein worked
between 4–6 hours, 2–3 days a week, for $8 an hour as a bouncer at a nightclub, from
November 1997 until the nightclub closed in February. During January 1998, Hottenstein also
worked for 2 weeks at General Metalworks before being discharged. The latter income had
already been accounted for in the compliance specification. Based on the new information
provided by Hottenstein at the hearing, the General Counsel and Respondent stipulated that
Hottenstein’s backpay should include an offset for Hottenstein’s wages for the period of time he
worked at CB Enterprises and was not employed at General Metalworks. In his brief, the
General Counsel proposes to reduce Hottenstein’s backpay by $860 for the fourth quarter of
1997 and $660 for the first quarter of 1998.91 On brief, Respondent acknowledges the

90Respondent contends that the interim earnings from the cash jobs cannot be attributed to
specific quarters. I disagree. Kollenbroich’s testimony was directed to asserting (and later
denying) that he worked for cash between June 2, 1998 (his return to the recall list) and his
acceptance of the job at Key Logo in August. He testified that he began the work “after I was
laid off—I mean, on—on the recall list” and after June 2, 1998. He also testified that he was
doing this, and did not need to stay at KSM on the second shift while he looked for new work
because “Because I figured, well, this won’t take long; I’ll be called back.” It is true that
Kollenbroich answered the question of why he didn’t need to stay at KSM while looking for new
work by answering that “I had jobs, side jobs, painting and stuff like that. So I was—I was
always occupied.” That comment is not sufficient to provide an evidentiary basis for the
suggestion that he worked on side jobs prior to April 1998. Of course it is possible. But it is
rank speculation. I credit Kollenbroich’s statement that the side work began after he went back
to the recall list on June 2, 1998. The evidence in the record suggests that Kollenbroich had
previously unreported earnings in either or both of the 2nd and 3rd quarters of 1998. I find that
to be the case, but I do not find that such claims for any other period is true. Denial of gross
backpay for the 2nd and 3rd quarters of 1998 reduces Kollenbroich’s total backpay by $5686.01
to a total backpay of $7392.17. The reduction does not include nonwage components of gross
backpay for these quarters, in this case, benefits contributions and earnings. American
Navigation Co., 268 NLRB at 428–429; Alaska Pulp, 326 NLRB at 535-536.

91General Counsel bases this on Hottenstein’s testimony that he worked for Liquor Sweets
from November 1997 to February 1998. Based on this testimony, the General Counsel
assumed a total of 12.5 hours per week at $8 per hour, attributing 8.6 weeks to the fourth
quarter of 1997 (November 1 to December 31, 1997) and 8.6 weeks to the first quarter of 1998
(January 1 to February 28, 1998), the General Counsel calculated interim earnings of $880 in
each quarter. The General Counsel subtracted 2 weeks from the first quarter of 1998 based on
Continued
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stipulation and requests that Hottenstein’s backpay be offset pursuant to the stipulation. My
review of the record indicates that this change, and the General Counsel’s calculations, are
appropriate. My order will be adjusted accordingly.92
Douglas Wiedeman: On brief, the General Counsel points out that Wiedeman’s
testimony that he was terminated from Allied Security in August 2003 came to the General
Counsel’s attention at the hearing for the first time. Previously, the General Counsel believed
that Wiedeman had worked at Allied Security until returning to work at KSM. Therefore, the
backpay calculations for Wiedeman in the compliance specification erroneously included interim
earnings offsets for the period from Wiedeman’s discharge at Allied Security to his
reinstatement at KSM. General Counsel contends that Wiedeman’s backpay calculations
should be amended to reduce the interim earnings for this period. I have, supra, rejected
Respondent’s contention that Wiedeman’s discharge from Allied Security provides a basis to
impute interim earnings. Therefore, I agree with General Counsel’s point and will adjust
Wiedeman’s backpay accordingly. However, Respondent points out on brief that the General
Counsel’s backpay figures for Wiedeman plead no interim earnings for the first two quarters of
2001, notwithstanding evidence showing that Wiedeman worked at Troyk Printing from August
1999 until May 24, 2001. Respondent’s point too, is well taken, and I will adjust the backpay
award accordingly.93
_________________________
Hottenstein’s testimony that for 2 weeks in the first quarter of 1998 Liquor Sweets was a second
job for Hottenstein (interim income has already been deducted for wages earned from his
interim employment during this time at General Metalworks). Accordingly, the General Counsel
seeks a reduction of net backpay for Hottenstein of $860 for the fourth quarter of 1997 and $660
for the first quarter of 1998. Hottenstein’s total backpay is reduced from $12,647.75 to
$11,127.75. (I note the apparent error in revised Appendix H(19)(d), attached to the General
Counsel’s brief, in which alleged interim straight time earnings are increased for the first quarter
of 1998 by $1520 ($880 + $660) instead of just by $660 as justified by the stipulation and
evidence.)
92I note that Respondent does not assert that Hottenstein intentionally concealed interim
earnings. The evidence would not support such a claim. Respondent does request that
Hottenstein’s entire backpay period be eliminated based on his testimony that during the time
frame he was working at the night club he was not working elsewhere during the day but instead
“pretty much rested for getting ready for the next day.” I reject Respondent’s argument.
Hottenstein testified to his efforts to seek work throughout his backpay period. Although it is
vague, I think his answer to counsel’s question was intended to convey that he rested during the
days after working late nights and early morning as a bouncer. He did not have a duty to look
for work on those particular days.
93Wiedeman testified that upon his discharge from Allied Security he received
unemployment compensation for 6 months “[a]nd just before my unemployment ran out, I got a
letter from KSM to come back.” The KSM letter was dated January 28, 2004, and so the
assumption is warranted that Wiedeman lost his job at Allied Security around August 1, 2003.
Based on this, the General Counsel, appropriately, seeks to eliminate the interim earnings offset
for Wiedeman for 2 months of the third quarter of 2003, the fourth quarter of 2003, and the first
quarter of 2004 until he returned to work at KSM on February 3, 2004. This results in a change
in backpay to Wiedeman from $43,418.36 to $55,687.46. As to Respondent’s point, a letter
from Troyk to the counsel for the General Counsel states that Wiedeman earned $9 per hour
and worked 38 to 40 hours a week through May 24, 2001. As referenced, General Counsel’s
calculations assume no interim earnings in any quarter in 2001. Based on the letter from his
Continued
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Lawrence Wetzel: At the hearing the parties stipulated that Wetzel’s earnings from
ArcRon should be an offset to Wetzel’s gross backpay. As stipulated at the hearing, those
earnings had been dropped as an offset by the compliance officer based on the erroneous
assumption that Wetzel had worked there prior to the backpay period. General Counsel
represents that Wetzel worked at ArcRon during the fourth quarter of 1997 and that this should
be offset from Wetzel’s backpay. There is no evidence to the contrary, and therefore, I accept
the General Counsel’s representation. I will adjust his backpay pay accordingly.94
Alan Curtis: Curtis was laid off from Cummins in August 2002 when the facility shut and
moved to Mexico. Respondent contends (R. Br. at 94) that Curtis’ backpay should be tolled
from August 2002 until August 2003, based on the evidence that after he lost his job at
Cummins Curtis attended school. Notably, the General Counsel pleads in the compliance
specification that “[b]etween January 15 2003 and May 16, 2003 Curtis attended school full time
and was unavailable for work.” General Counsel does not seek backpay for that 4 month
period. Curtis testified he was enrolled in school in Madison taking art classes for substantial
portions of the time between these two jobs. He testified that he was enrolled in school for
between a year and a year and a half. He testified that he began school soon after losing his
job at Cummins in August 2002 and quit school to start work at Phoenix Coaters in December
2003, approximately 16 months later. Curtis denied that he was not seeking work during the
period of time he was in school, and, testified that he quit school to take the position at Phoenix
Coaters. The General Counsel, while conceding (actually, pleading) that Curtis was unavailable
for work from January to May 2003, seeks backpay for the remaining months contested by
Respondent. The General Counsel’s position rests on the claim that Respondent bears the
burden of proof of establishing that the claimant was in school full time and unavailable for work
during the backpay period and failed to do so. No evidence was proffered (and no questions
asked) about whether Respondent went to school full or part time, or could have worked at
night, and the like. Given the record, limited as it is, I do not believe the General Counsel can
rely on a lack of evidence to win this point. The record includes the affirmative pleading that
Curtis was unavailable for work and going to school full time from January to May 2003. In his
testimony, Curtis did not distinguish this period from the rest of the “year, year and a half” that
he testified that he was in school, which he was able to undertake while receiving state
unemployment benefits because his job had been lost to Mexico. This is sufficient to
presumptively establish that Curtis was in school fulltime for the period challenged by
Respondent. Curtis’ vague assertion that he looked for work during the time he was in school is
contradicted, at least in part, by the General Counsel’s pleadings. That he quit school in the fall
of 2003 to take a job, at most, shows he was looking for work in the fall of 2003, after the August
_________________________
interim employer, I assume 39 hours a week, for 20.8 weeks (13 weeks for the first quarter of
2001 and 7.8 weeks during the second quarter of 2001) at $9 per hour, which translates to first
quarter 2001 interim earnings of $4563.00 and second quarter 2001 interim earnings of
$2737.80. These earnings are fully offset from Wiedeman’s gross backpay for those quarters.
This decreases Wiedeman’s total backpay figure by $7300.80 to a final figure of $48,386.66.
94General Counsel asserts on brief (GC Br. at 133) that the amount earned at ArcRon during
the backpay period was $1,952.88. Accordingly, the backpay due Wetzel is reduced from
$15,887.23 to $13,934.35. I note that Respondent’s statement on brief (R. Br. at 107) that at
the hearing “it was revealed that Mr. Wetzel failed to accurately report certain interim earnings
to the Region” is, based on my evaluation of the record, untrue.
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2002 to August 2003 period for which Respondent claims tolling of backpay is appropriate. I will
adjust the backpay calculations accordingly.95
7. Offset for interim 401(k) and retiree benefits received or available to
discriminatees
KSM contends (1) that discriminatees who participated in a retirement plan at an interim
employer should have their lost 401(k) benefits from KSM offset by contributions and earnings
from the new plan; and (2) that where an employee had an opportunity but failed to participate
in a retirement plan at an interim employer, he should not receive backpay for lost 401(k)
benefits from KSM for the time that he could have been participating in the interim employer’s
plan.
To some extent, the General Counsel does not dispute KSM’s first contention, agreeing
that an employer’s benefits obligation to discriminatees can be offset by “equivalent” interim
benefits. John T. Jones Construction, Inc., 349 NLRB No. 119, slip op. at 1 (“Retirement
benefits earned during interim employment that are equivalent to what would have been earned
absent the discrimination are properly offset against gross retirement benefits”); Aroostook
County Regional Ophthalmology Center, 332 NLRB at 1618.96 Indeed, the General Counsel
amended the compliance specification at trial, in part, to reduce or eliminate the claim for
backpay based on “401(k) benefits or comparable retirement benefits received at interim
employers” for 7 discriminatees who the Region determined to have received such benefits.
See, Proposed Second Amendment to Amended Compliance Specification at ¶¶15-16.
However, Respondent complains that there may be other employees for whom KSM’s 401(k)
plan contributions are a component of gross backpay, and no offset is pled for them.
The gravamen of Respondent’s complaint is that “General Counsel failed to properly
investigate retirement plan participation and availability” at interim employers and that the “initial
burden” to do so falls on the General Counsel. And this, I believe, is where Respondent’s
argument falls off the tracks. With a few exceptions I will discuss, infra, Respondent is not
arguing that specific employees received 401(k) benefits that should have been but were not
offset from gross backpay. Rather, Respondent contends, without authority, that “[t]he Region

95Curtis testified that he lost his job in August 2002 and it “wasn’t long after that” that he
started going to school. Given his impressive straight time earnings for the third quarter of 2002
(almost exactly 2/3 of his first and second quarter earnings, I conclude that he worked through
August 2002, and began school thereafter. I will toll gross backpay as of September 2002,
which results in gross straight time backpay of $5245.27 for the third quarter of 2002 which is
fully offset by interim earnings (net overtime earnings for the quarter are already zero). As a
result of the tolling wage-based backpay is $0.00 for the third and fourth quarters of 2002 and
the first and second quarters of 2003. For the third quarter of 2003 I assume gross straight time
backpay for one month of the quarter, which would be $2627.27,with no interim earnings offset,
and the same assumption is made for gross overtime, which amounts to $61.57 with no offset,
for net wages in the third quarter of 2003 of $2688.84. For all periods in which backpay is tolled
I do not toll the benefits component of backpay. Alaska Pulp, 326 NLRB at 535–536. In total,
Curtis’ backpay is $41,702.98.
96Although, it should be noted, “as a general rule” the “retirement fund contributions and
pension credits earned with an interim employer are not comparable on a dollar-to-dollar basis”
and therefore “are not offset by interim earnings.” Alaska Pulp, supra at 535-536 and fn. 48.
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has the burden of investigating whether an employee had available or participated in a
retirement plan at an interim employer” and that “[h]ere, General Counsel failed to establish that
the Region properly investigated whether the employees participated in a retirement plan at
their interim employers . . . [and] did not investigate whether the employees had retirement
plans available to them at the interim employers, but chose not to participate.” Thus, according
to Respondent, the General Counsel failed to meet his “initial burden . . . to investigate” interim
401(k) participation and availability.
In the first place, Respondent offers no evidence to support the claim that the Region’s
investigation was lacking in any qualitative way. But that is beside the point. The point is that
Respondent’s argument is premised on the overturning of a fundamental tenet of Board
compliance precedent—that is, that the burden of proving the existence, amount, and
applicability of interim offsets to gross backpay figures is borne by the respondent that
committed the unfair labor practices and not by the General Counsel. Minette Mills, 316 NLRB
at 1010, citing Arlington Hotel Co., 287 NLRB at 855); Florida Tile Co., 310 NLRB 609 (1993),
enfd. without op. 19 F.3d 36 (11th Cir. 1994). While it is the General Counsel’s voluntary policy
to assist in gathering information on interim earnings and include this data in the compliance
specification “the voluntary policy is nothing more than an ‘administrative courtesy.’” Minette
Mills, supra, quoting Ryder System, Inc., 302 NLRB at 613 fn. 7 of ALJD (1991). “The
Respondents still shouldered the burden of establishing these offsets.” Ryder System, supra.
With specific reference to retirement benefits, the Board holds that “it is a respondent's burden
to show that interim benefits were equivalent in nature, and therefore appropriately offset,
against those lost as a result of the discrimination.” John T. Jones Construction, Inc., supra.
The issue is whether the Respondent has shown that the interim benefits were fungible with the
gross employer’s benefits. Id., slip op. at 2. Laborers Local 158 (Worthy Bros.), 301 NLRB 35,
38 (1991), enfd. mem. 952 1393 (3d Cir. 1991).
Thus, contrary to the very starting point of Respondent’s argument, the General Counsel
carries no burden in compliance litigation to establish any facts about the interim earnings of
employees or the Region’s investigation of that subject. In fact, the compliance officer and the
Region, by all appearances provided (and pled) significant information, to Respondent’s benefit,
regarding interim earnings by discriminatees. By all appearances its investigation was fully in
keeping with its practice of administrative courtesy. But it is not a point that Respondent can
litigate or force the General Counsel to prove.
On the evidence, KSM cannot carry its burden of demonstrating that—beyond the
significant offsets set forth by the General Counsel in the compliance specification, as
amended—there are additional 401(k) or other retirement-related interim earnings to be offset.
Respondent points (R. Br. at 115-116) to 8 discriminatees who “[t]he Region alleges . . . are
entitled to a substantial amount of backpay for lost 401(k) benefits.” But KSM provides only the
most limited evidence as to any of their interim earnings.
For instance, Respondent points out that discriminatee Allen Curtis testified that he
participated in a 401(k) at his interim employer. However, Respondent secured, and the record
reveals, absolutely no evidence about this 401(k) and Curtis’ participation in it. There is, for
instance, no evidence regarding the terms of the 401(k), how much Curtis invested, whether the
employer provided any match for employee contributions, the nature of the investment options,
or any other information, without which it is impossible to determine whether an offset is
appropriate and how much that offset would be.
Respondent also asserts that it is entitled to offset a portion of Lawrence Wetzel’s
retirement benefits, as he testified that he left an interim employer to work at the West Bend
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School District because it would permit him to accrue pension credits in the state employees’
pension plan. There is no evidence suggesting that, within the backpay period, Wetzel received
or had the option of receiving a distribution from the state pension plan, leaving dubious the
proposition that the receipt of credits for the state plan could offset the 401(k) retirement
contributions owed by KSM to Wetzel as a part of gross backpay. United Enviro Systems, Inc.,
323 NLRB 83 (1997) (permitting offset of discriminatee’s wages with a profit sharing distribution
received by discriminatee from interim employer and retirement benefit distribution that
discriminatee had option to receive from interim employer; but “contributions by the
discriminatees' interim employers [to their pension fund] were not offset against the
Respondent's gross liability to make contributions to its own funds on the employees' behalf”),
enfd. 958 F.2d 364 (3d Cir. 1992). As explained in Laborers Local 158, supra at 38:
Respondent argues that it may escape liability for pension fund
contributions if it can show that interim benefits were "equivalent" to those lost
due to discrimination. However, it is unclear that this would justify an offset, at
least where the interim pension benefits come from a different employer or entity
from that which provided the original benefits. As the Board has stated, "a unique
benefit flows from longevity in a specific pension fund that cannot be duplicated
by contributions into another pension fund." American Navigation Co., 268 NLRB
426, 428-429 (1983). Thus, it is highly unlikely that any interim pension benefit
would be "exactly equivalent" to that lost through discrimination. Ibid.
However, that issue need not be reached, as the factual foundation to make the
argument is wholly lacking. Respondent did not adduce, and did not attempt to adduce
evidence regarding Wetzel’s interim pension contributions. There is no evidence about the
nature of the benefit, rate of accrual, availability for distribution, or anything else other than the
perception by Wetzel that his retirement would be better served if, while unlawfully not
reinstated to KSM, he left General Metalworks to assume employment with an employer that
contributed to the state employee pension fund. Respondent has failed to prove that its
backpay obligations should be reduced based on Wetzel’s interim pension benefits accrual.
Finally, Respondent asserts the related argument that its 401(k) remedy obligations to
discriminatees should be offset to the extent an employee working at an interim employer had
the ability but chose not to participate in an interim employer’s 401(k) plan. In Respondent’s
view, the failure of an employee to participate in an interim employer’s 401(k) constitutes a
failure of the duty to mitigate damages. In advancing this argument, Respondent again
contends that the Region was under a duty to investigate this matter and that the General
Counsel has not met his burden to establish the adequacy of such investigation. This argument
is rejected for the same reasons it was rejected with regard to Respondent’s similar contention
regarding the Region’s investigation into actual 401(k) interim earnings. As to the legal
proposition that the failure of an employee to participate in an interim employer’s 401(k) is a
failure to mitigate, tantamount to a willful loss of earnings, Respondent cites no case law. I am
unaware of any case law considering this issue. However, it is not an issue that can be decided
in Respondent’s favor on this record. Respondent’s “evidence” on this point is the testimony of
Gordon Sabel that one of his interim employers offered an Individual Retirement Account
(IRA)—which, of course, operates differently than a 401(k)—in which Sabel chose not to
participate. The record tells us nothing about that plan, nothing about the potential benefits,
nothing about the tax treatment of contributions, nothing about investment options, nothing
about employee contribution options, nothing about the employer contribution (Sabel thought
there was one). Given the dearth of information, even assuming arguendo that Respondent’s
legal point was accepted, the evidence would not support Respondent’s claim.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended97
SUPPLEMENTAL ORDER
IT IS HEREBY ORDERED that the Respondent KSM Industries, Inc., Germantown,
Wisconsin, its officers agents, successors, and assigns, shall:
(1) Reinstate Jesus Rodriguez’ seniority and vacation benefits as if he had been reinstated to
employment and remained continuously in the employ of Respondent since October 20, 1997.
(2) Satisfy the obligation to make whole the following discriminatees98 by paying them the
following amounts (which total $395,502.65) with interest thereon to be added, accrued to the
date of payment computed in the manner described in New Horizons for the Retarded, 283
NLRB 1173 (1987), minus tax and withholdings required by Federal and State laws.

97If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
98For any discriminatee who is deceased, or becomes deceased prior to full payment of
amounts owing to the deceased discriminatee, the backpay due them shall be paid to the legal
administrator of their estate or to any person authorized to receive such payment under
applicable state law. ABC Automotive Products Corp., 319 NLRB 874, 878 fn. 8 (1995).
Anthony H. Bannenberg $14,110.10
Michael R. Bartelt $1,661.31
Dennis M. Benke $6,527.49
Paul W. Bojar $0.00
Jeffrey J. Cadeau $211.85
Darryl G. Campbell $716.25
John F. Casetta $212.16
Orin E. Christensen $1,761.33
Thomas Cooper $6,085.65
Allen M. Curtis $41,702.98
Jason R. Day $0.00
Roger R. Day $5.00
Hans R. Eusch $36,926.29
Raymond J. Fairbanks $0.00
Robert A. Graf $23,393.24
Robert C. Green $457.77
Francisco Guerrero $110.69
Manuel Guerrero $34.50
Paul J. Gutjahr $218.05
Roger J. Gutjahr $0.00
Randy A. Habram $0.00
Robert J. Hanrahan $5,311.44
Randall H. Henning $4,599.01
Michael S. Herbst $0.00
Jerome Hoover $0.00
Brandon Hottenstein $11,127.75
Donald D. Hottenstein $0.00
Ronald L. Hottenstein $0.00
Norbert John Jahn $847.94
Laverne L. Jung $3,944.33
James C. Kollenbroich $7,392.17
Harold S. Koslo $2,110.80
Gaylord E. Krahn $0.00
James Kranz $0.00
Arthur L. Kreis $446.49
David J. Krull $2,598.64
Richard J. Kuhlenbeck $31,841.01
Roger R. Malchow $11,900.63
James W. Malson $16,358.58
Jeffrey J. Mutz $0.00
Charles J. Peltier $2,810.90
William J. Peltier $1,462.67
Alan K. Resch $16,455.91
Mark W. Rettler $1869.98
Jesus Rodriguez $4,474.02
David W. Rosbeck $342.16
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James C. Roskopf $2,534.04
Gordon John Sabel $50,981.66
Jason Sanger $0.00
Anthony D. Schmitt $0.00
Leroy Schmitt, Jr. $763.44
David Schneidervin $0.00
Michael A. Servi $4,318.25
Mark A. Snyder $0.00
Roger J. Stern $14,124.03
Williams L. Stiggers $0.00
Gerardo Villarreal $0.00
Lawrence H. Wetzel $13,934.35
Douglas Wiedeman $48,386.66
Michael Lee Zwieg $431.13
Dated, Washington, D.C., September 27, 2007
____________________
David I. Goldman
Administrative Law Judge