Zimmerman Plumbing Co.

National Labor Relations Board - Board Decisions

Nov 8, 1997

325 N.L.R.B. 106 (N.L.R.B. 1997)

106
325 NLRB No. 5
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In adopting the judge’s findings that the Respondent violated Sec.
8(a)(1) by more harshly applying its absence rules to employees be-
cause of their union activities, we find it unnecessary to rely on the
judge’s references to the Americans With Disabilities Act and ‘‘laws
relating to family leave concepts’’ in its application of the absence
rules to Tim O’Brien and Joe Houseman. We find that the record
evidence establishing the Respondent’s unlawful motive for changing
the way it administered the absence rules to all employees is suffi-
cient to support the violations found by the judge, regardless of the
particular circumstances pertaining to O’Brien and Houseman.
2 In adopting the judge’s conclusion that the Respondent created
the impression of surveillance of employee Tim O’Brien’s union ac-
tivities as a result of Owner Mahoney’s remark that he had heard
O’Brien had been approached by the Union, we note that at no time
during Mahoney’s conversations with O’Brien did he give any type
of assurance that he was not concerned or bothered about O’Brien’s
activities or that no retaliation by management would be directed to-
wards him. We find no merit in the Respondent’s contention that it
was concerned only with the prospect that O’Brien would leave the
Respondent’s employ and that its statements to O’Brien were solely
reflective of this concern and therefore not coercive.
3 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144
(1996).
4 Member Higgins would adopt the judge’s findings that all five
of the Respondent’s foremen were supervisors. He does not pass on
whether they were agents under the theory of ‘‘apparent authority.’’
Zimmerman Plumbing and Heating Co., Inc. and
Local 7, Sheet Metal Workers, International
Association, AFL–CIO. Cases 7–CA–37323, 7–
CA–37513, 7–CA–37599(2), 7–CA–37599(3), 7–
CA–37599(4), 7–CA–37755, and 7–CA–37868
November 8, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On February 5, 1997, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in support
of the judge’s decision. The Charging Party filed a
statement adopting the General Counsel’s brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions2 and to adopt the rec-
ommended Order as modified.3
The Respondent has excepted to the judge’s super-
visory and agency findings. Contrary to the Respond-
ent, we agree with the judge’s conclusion, for the rea-
sons stated by him, that Robert Link is a statutory su-
pervisor within the meaning of Section 2(11) of the
Act. We also agree with the judge that Foremen
Wayne Ware, Harold Bartholomew, Roger Wedig, and
Mike Dennis had apparent authority to act on behalf
of management and that they, therefore, acted as
agents of the Respondent at all relevant times. Accord-
ingly, we find it unnecessary to rely on his determina-
tion that they are also supervisors.4
It is well established that apparent authority results
from a manifestation by the principal to a third party
that creates a reasonable basis for that party to believe
that the principal has authorized the alleged agent to
perform the acts in question. See generally Dentech
Corp., 294 NLRB 924 (1989); Service Employees
Local 87 (West Bay), 291 NLRB 82 (1988). Thus, in
determining whether statements made by individuals to
employees are attributable to the employer, the test is
whether, under all the circumstances, the employees
‘‘would reasonably believe that the employee in ques-
tion [alleged agent] was reflecting company policy and
speaking and acting for management.’’ Waterbed
World, 286 NLRB 425, 426–427 (1987).
Here, the judge found, and the record evidence sup-
ports, that these four individuals were the senior fore-
men on virtually all of the Respondent’s projects, espe-
cially the major ones. As the senior foremen, they reg-
ularly exercised apparent and actual authority when-
ever they independently acted as the Respondent’s
spokesmen on the jobsites. As a part of their daily re-
sponsibilities, they acted as the conduits for relaying
and enforcing the Respondent’s decisions, directions,
policies and views. All four, along with Link, partici-
pated in the Respondent’s monthly management meet-
ings known as the ‘‘Circle Meetings’’ and thus, were
privy to the Respondent’s policies and objectives.
Therefore, we agree with the judge that given the posi-
tion in which the Respondent had placed them, it was
reasonable for the rank-and-file employees to believe
that these foremen were reflecting company policy and
acting for management when they engaged in the con-
duct found to be unlawful. Victor’s Cafe 52, 321
NLRB 504, 513 (1996); Great American Products, 312
NLRB 962 (1993).
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107ZIMMERMAN PLUMBING CO.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Zim-
merman Plumbing and Heating Co., Inc., Kalamazoo,
Michigan, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a) and
reletter the subsequent paragraphs.
‘‘(a) Within 14 days from the date of this Order,
offer Andy Lytle, Todd O’Brien, and Steve Stone full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
‘‘(b) Make Andy Lytle, Todd O’Brien, and Steve
Stone whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them,
in the manner set forth in the remedy section of the
decision.’’
2. Substitute the following for relettered paragraph
2(g).
‘‘(g) Within 14 days after service by the Region,
post at Kalamazoo facilities and all current jobsites
copies of the attached notice marked ‘‘Appendix.’’6
Copies of the notice, on forms provided by the Re-
gional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pend-
ency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since June 13, 1995.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed
them by Section 7 of the Act by creating the impres-
sion that employees’ union activities are under surveil-
lance; instructing employees to consult with manage-
ment before joining a union; implying that joining the
union would result in unfavorable treatment compared
to be benefits available to those who stay with the
company; threatening employees with closure of the
business, denying employees the privilege of bringing
their tools home at night; limiting employees normal
access to the onsite job trailer; and photographing its
employees’ union activities.
WE WILL NOT discriminatorily change the terms and
working conditions of employees by transferring and
isolating together known union organizers.
WE WILL NOT interfere with, restrain, or coerce em-
ployees in the exercise of the rights guaranteed them
by Section 7 of the Act, by promulgating an overly
broad no solicitation, rule a more strict absenteeism
policy and maintaining and enforcing a rule prohibiting
employees from placing any union stickers on its hard-
hats or firm wearing their own hardhats.
WE WILL NOT discriminatorily issue warnings, sus-
pend, or discharge employees for alleged violations of
a more strictly enforced attendance policy and their
display of union stickers on their hardhats, because of
their engaging in union or other protected concerted
activity.
WE WILL NOT discriminatorily remove employees
from the apprenticeship program and otherwise termi-
nate any employee because of their engaging in union
or other protected concerted activities.
WE WILL NOT in any like or related manner infer
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Andy Lytle, Todd O’Brien, and
Steve Stone full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Andy Lytle, Todd O’Brien, and
Steve Stone whole for any loss of earnings and other
benefits resulting from their discharge, less any net in-
terim earnings, plus interest.
WE WILL within 14 days from the date of this Order
rescind the no-solicitation, no-hardhat sticker rule and
rescind the attendance related disciplinary warning let-
ters to Joe Houseman, Todd O’Brien, Steve Stone, Tim
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108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All following dates will be in 1995, unless otherwise indicated.
O’Brien, Jeff Yearry, Jamie Fogoros, and Andy Lytle,
issued in June and August 1995 and remove from our
records any reference to them and notify these employ-
ees, in writing, that this has been done and that the
warning letters will not be used as basis for any future
personnel action against them.
WE WILL within 14 days from the date of this Order
reinstate Tim O’Brien to the Respondent’s Apprentice-
ship Program with no loss of credit and expunge any
reference to his September 1995 removal from that
program in our files and notify him, in writing, that
this has been done.
WE WILL within 14 days from the date of this
Order, remove from our files any reference to the un-
lawful terminations, suspensions and warnings and
within 3 days thereafter notify the employees in writ-
ing that this has been done and that evidence of these
unlawful terminations, suspensions, and warnings will
not be used as a basis for future personnel action
against them.
ZIMMERMAN PLUMBING AND HEATING
COMPANY, INC.
A. Bradley Howell, Esq., for the General Counsel.
Peter J. Kok and Lisa Letarte, Esqs., of Grand Rapids,
Michigan, for the Respondent.
Tinamarie Pappas, Esq., of Ann Arbor, Michigan, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Grand Rapids, Michigan, on May 7–9,
June 24–27, and September 18, 1996. Subsequent to an ex-
tension in the filing date, briefs were filed on November 26
by the General Counsel and the Respondent. The Charging
Party has stated that it adopts the brief of the General Coun-
sel. The proceeding is based upon a initial charge filed June
13, 1995,1 by Local 7, Sheet Metal Workers International
Association, AFL–CIO. The Regional Director’s third
amended consolidated complaint dated February 27, 1996, al-
leges that Respondent Zimmerman Plumbing and Heating
Co., Inc., of Kalamazoo, Michigan, violated Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act) by
threatening closure or layoff, interrogating employees, indi-
cating the futility of union representation, indicating union
activities were under surveillance, granted a wage increase to
discourage union support, threatening to withhold favorable
recommendation and wage increases, photographing pickets,
maintaining and enforcing an unlawful solicitation rule, pro-
hibiting or directing the removal of union strikers on hard-
hats and shirts, and transferring, isolating and disciplining
employees, changing work practices and programs and sus-
pending, terminating and refusing to reinstate employees be-
cause of their union or other protected activities and in order
to discourage such activities.
Upon a review of the entire record in this case and from
my observation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the fabrication and installation
of sheet metal, piping and related materials at various con-
struction sites in Michigan. It annually purchases and re-
ceives goods and materials valued in excess of $50,000 di-
rectly from points outside Michigan. It admits that at all
times material is has been an employer engaged in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act. It also admits that the Charging Party
Union and Local 337 United Association of the Journeyman
and Apprentices of the Plumbing and Pipe Fitters Industry of
the United States and Canada, AFL–CIO, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent was formed in 1976 by Dan Zimmerman
and Richard Mahoney and began business as a union con-
tractor performing commercial and residential plumbing and
heating work and later added the sheet metal business. In
1978 the Company was reorganized and Bruce Link joined
the business as a part owner. In the mid-1980s, the Respond-
ent and the Plumbers and Sheet Metal Workers were unsuc-
cessful in their attempts to renegotiate new contracts and it
became an open shop company.
The Respondent performs construction work at various lo-
cations throughout Michigan and employs about 40 workers.
In December 1994, apprentice plumber Todd O’Brien and
another employee joined Plumbers Local 337, and sometime
that month as they were driving to a jobsite, O’Brien told
Foreman Mike Dennis that he had joined the Union. Dennis
immediately stopped the car and called Owner Bruce Link,
who made a note of this information and placed it in
O’Brien’s personnel file. Thereafter, in January 1995, Com-
pany President Zimmerman held a meeting with employees
and showed an antiunion video.
In April, Plumbers Local 337 and Sheet Metal Workers
Local 7 decided to combine their organizing efforts. They
formed a joint organizing committee of Respondent’s em-
ployees and on May 5, Local 337 faxed a letter to the Re-
spondent naming Jeff Yearry, Todd O’Brien, and Andy Lytle
as employees who were in this organizing committee. On
May 15, Local 7 faxed Respondent a letter naming James
Fogoros, Joseph Houseman, Timothy O’Brien, and Steven
Stone as the sheet metal employees on the committee. There-
after, these seven employees began to openly demonstrate
their support for the organizing effort by wearing union
stickers on their hardhats and by picketing the jobsites during
their breaks and lunch. They also started an unfair labor
practice strike on June 28 which ended when they made an
unconditional offer to return to work on July 28.
The General Counsel presented evidence purporting to
show that from April through September, when the organiz-
ing efforts intensified, the Respondent reacted by threatening
employees with reprisals, interrogating employees about their
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109ZIMMERMAN PLUMBING CO.
support for the union campaign, implementing and enforcing
an overly broad no-solicitation rule, photographing employ-
ees engaged in peaceful picketing, prohibiting employees
from wearing union insignias on their hardhats, unlawfully
disciplining, suspending and discharging employees, delaying
the recall of one of the unfair labor practice strikers, and re-
moving another from the apprenticeship program. The perti-
nent testimony and my factual findings based on the overall
record will be set forth in more detail in the following spe-
cific discussion of the several issues and allegations in-
volved.
III. DISCUSSION
A. Supervisory Status
Section 2(11) of the Act defines a supervisor as:
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, layoff, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsible to direct them, or to adjust their
grievances, or effectively to recommend such action, it
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
It is not necessary that an individual possess all the indicia
identified in Section 2(11) of the Act to be considered a su-
pervisor. Otherwise, the Board in its expertise, has knowl-
edge of and the record here show that in the construction in-
dustry it is a typical practice to designate one individual in
a crew as foreman, leadman, or crew leader and that at var-
ious times, numerous employees have been assigned this
function for the Respondent, included alleged discriminatees
Joe Houseman and Jamie Fogoros. Although these employees
occasionally did serve as the Respondent foreman on certain
jobs, the record also shows that they were not regularly ac-
corded any special trust by the Respondent and that they per-
formed routine administrative roles as the most senior trade
person on a jobsite in addition to their normal job functions.
They were not endowed with any independent authority and
I find that they were not statutory supervisors. I also find
that their status is not indicative or determinative of the sta-
tus of the five persons alleged to be supervisors by the gen-
eral counsel.
The Respondent denies that at all material times Robert
Link, Wayne Ware, Harold (Bart) Bartholomew, Roger
Wedig, and Mike Dennis were supervisors within the mean-
ing of Section 2(11) of the Act or were its agents within the
meaning of Section 2(13) of the Act. It asserts that the only
supervisors of its approximately 40 employees are the three
owners, Richard Mahoney, Bruce Link, and Dan Zimmer-
man, and that the rest are merely tradesmen who sometimes
work as job foremen. During 1994 and early 1995, Robert
Link, the son of Owner Bruce Link, functioned generally as
the sheet metal ‘‘superintendent’’ with duties and respon-
sibilities far above the other foreman and, as ‘‘field super-
intendent,’’ prior to going to the Thornapple jobsite as the
overall site foreman. Otherwise Robert Link served as
Mahoney’s intermediary with the jobsite foremen and he
issued them work assignments, made staffing changes, issued
employees verbal and written discipline, gave verbal and
written authorization for employees to take time off, con-
ducted periodic face-to-face evaluations of employees, and
participated in getting employee raises. Like Mahoney, he re-
viewed employees’ weekly timecards submitted by the fore-
man and initialed them in the lower left-hand corner as being
approved. Until sometime in 1995, he also administered the
Respondent’s apprenticeship program, and authorized em-
ployees to take time off from apprenticeship classes. He re-
ported directly to Mahoney, often acted as a spokesman for
Respondent when dealing with foreman and other employees,
and the employees’ testimony shows the employees clearly
believed that he spoke on behalf of Respondent with respect
to enforcing work rules both on the jobsites and in the fab-
rication shop and they understood that failure to follow his
directives would result in discipline. When Steve Stone was
discharged, he made the report that was accepted by Owner
Zimmerman without any further investigation and Respond-
ent also asserted that part of the reason Stone was fired was
because he had been dishonest with Link and Link otherwise
suspended Stone and sent him home without conferring with
higher management.
Bartholomew, Ware, Wedig, and Dennis virtually always
served as foreman on Respondent’s projects, and the record
shows that they were given more authority than the other
employees who only sometimes served as foreman on small-
er jobs. They, along with Robert Link were higher paid than
the other journeymen, and they clearly acted as Respondent’s
spokesman on the jobsite. They received additional benefits
including a regular $10-a-day truck allowance, a gas credit
card that allowed them to charge for gas; all benefits that
were not usually available to the occasional foreman. These
five also participated in monthly management meetings
known as ‘‘Circle Meetings,’’ conducted by the owners at
area restaurants, where upcoming projects, problems on the
jobs, the staffing of the jobs, and other matters were dis-
cussed. They also were relied upon for their opinions and
recommendations about temporary employees who Respond-
ent was considering for future employment.
Ware was the senior foreman on the Thornapple job and
both the sheet metal crew and the plumbing crew reported
to him. When Fogoros arrived on that job on May 16 as
sheet metal foreman, he challenged Ware’s authority and
Mahoney faxed a memorandum to the jobsite which stated
that all employees on the jobsite were to report to Ware. The
record shows that he issued work directives, issued dis-
cipline, approved time off which was placed in employees’
personnel files, was responsible for the plumbing and sheet
metal crews, and acted as Respondent’s spokesman on the
jobsite. Ware was unavailable to testify in the proceeding as
he apparently left the Respondent’s employment and moved
from the area.
The record otherwise shows however, that when he
interacted with employees during 1995 he generally was the
most senior company representative on the jobsite and had
the apparent and actual authority to independently act as a
spokesman for Mahoney and management.
Bartholomew also generally supervised large projects for
Respondent, including one of its largest, the Oshtemo Post
Office project. He had similar authority and responsibilities
to that of Ware and he regularly interacted with employees
on behalf of Owner Mahoney.
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110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 An employer also can be responsible for comments made by oth-
ers if employees had ‘‘just cause to believe [the person making the
comment] was acting for or on behalf of the company.’’ Proctor &
Gamble Mfg. Co. v. NLRB, 658 F.2d 968, 984 fn. 18 (4th Cir. 1981),
cert. denied 459 U.S. 879 (1981) (quoting NLRB v. Texas Independ-
ent Oil Co., 232 F.2d 447, 450 (9th Cir. 1956)). In this context, attri-
bution is even broader than the strict rules of agency law.
Mike Dennis was a plumbing foreman but was responsible
for directing the work of both the sheet metal crews and the
plumbing crews on the Portage Northern site and he was the
senior jobsite representative of management who directed the
work of employees, issued discipline, and enforced the Re-
spondent’s work rules. When employee Joe Houseman was
disciplined, his suspension letter indicated that it was because
he had been insubordinate to Dennis.
Roger Wedig was the sheet metal foreman on the same
Portage Northern job. He directed the work of only the sheet
metal employees but authorized employees to take time off
enforced Respondent’s work rules on the jobsite, and other-
wise acted on behalf of management in the absence of the
owners.
While it appears that Wedig may have exercised lesser
independent authority than the four other supervisors dis-
cussed above, he enjoyed the special trust and benefits given
the other ‘‘senior’’ foreman and clearly acted with the em-
powerment of an agent for the Respondent. Otherwise,
Wedig was considered by the rank and file employees to
have the apparent authority to act for management.
Under these circumstances, I conclude that each of these
foreman was a statutory supervisor under Section 2(11) at all
material times in 1995 and, in addition, I find that at all ma-
terial times in 1995 each acted as an agent of the Respondent
within the meaning of Section 2(13) of the Act, such that
their conduct in relation to rank and file employees is attrib-
utable2 to the Respondent.
B. Alleged Illegal Statements by the Respondent
In January, president and part-owner, Dan Zimmerman,
conducted a meeting with six or seven employees and
showed a video which included a clip in which a union rep-
resentative stated that the purpose of the union campaign was
to ‘‘put these scabs out of business,’’ Tim O’Brien, Fogoros
and Lytle each testified that Zimmerman followed the show-
ing of the video with a statement that this was how unions
operated and that the Union would never get in his Com-
pany, that they would close the doors. Lytle testified that
some foreman others spoke up negatively about what union’s
did. Forman Wedig testified that Zimmerman said that the
Respondent would not close the Company but would just
struggle through but added that Wedig had made several
comments (at unspecified times), about his own feelings that
they would just close the doors.
In Wedig’s sworn affidavit of July 1995, he stated that he
could not recall making such a comment to employees. Rob-
ert Link, however, testified that he recalled that Wedig not
Zimmerman, made such a comment after the video.
Here, this alleged statement was made prior to the 10(b)
period and inasmuch as the evidence is inconclusive I find
it unnecessary to rely on it as a basis for any formal finding
and I will not find a separate violation in this respect, as al-
leged by the General Counsel.
The January meeting and the statements made at that time,
however, clearly show that the Respondent was aware of and
concerned about any union organizational efforts. Thereafter,
in early April Tim O’Brien (the brother of Todd O’Brien,
one of the lead union adherents), was approached by Owner
Mahoney who said that he had heard that Tim had been ap-
proached by the Union. Tim denied that he had been ap-
proached but said that he planned to contact the Union with-
in a few days to see what they had to offer. Tim, who was
a sheet metal apprentice in the fabrication shop (and who
served as shop foreman for a while), testified that Mahoney
made some negative comments about unions. He added that
they wanted to keep Tim there, and told Tim to let him
know before making any hasty decisions. Mahoney did not
deny that he questioned Tim O’Brien about the Union, but
explained that his concern was that Tim O’Brien would leave
Respondent’s employ and go work for a union contractor and
that before he made a final decision about joining the Union,
he wanted to have another chance to convince him to stay
with the Company.
Tim O’Brien joined Local 7 without further discussion of
the matter with Mahoney and then was named as one of
Local 7’s organizers on the letter that Local 7 faxed to Re-
spondent on May 15. Subsequently, after Tim did not receive
the raise that he had been promised by Robert Link during
his evaluation in early April, he asked Mahoney about it and
questioned whether his not getting the raise had anything to
do with his joining the Union. Mahoney replied, ‘‘No, but
you also told me that you would notify me before making
any hasty decisions, the next thing I know I get a fax letter
that you signed with the Union.’’ Despite his expressed ‘‘dis-
appointment’’ Mahoney thereafter approved a raise for Tim
retroactive to May 15.
Contrary to the contentions of the General Counsel I can-
not find that Mahoney’s statement or action implied that the
delay in approving the raise was because O’Brien had jointed
the Union and I find no violation of Section 8(a)(1) in this
instance. I do find, however, that Mahoney’s earlier con-
versation with Tim gave the impression that he was engaging
in surveillance of his union activities. I find that his request
that Tim discuss the matter with him further, before joining
the Union, also is violative of Section 8(a)(1) of the Act es-
pecially since the questions were by a top company official
and, in context, were inherently coercive in nature and, in the
circumstances, reasonably tend to interfere with, restrain, or
coerce employees in the exercise of Section 7 rights, and I
conclude that the Respondent is shown to have violated the
Act in these respects, as alleged.
On May 4 Mahoney gave plumber apprentice Jeff Yearry
his annual review. He mentioned that they knew that Todd
O’Brien and Dan Thomas were union members (they both
had earlier declared their support for the Union), and that he
‘‘suspected that they might have gotten to Andy Lytle.’’
(Lytle, at this point had not disclosed his union membership.)
Mahoney admitted making these remarks about Lytle and
that Lytle had not disclosed his union sympathies to him.
Under these circumstances, I find that his statement to
Yearry created the impression that Respondent was engaging
in surveillance of its employee’s union activities and it vio-
lates Section 8(a)(1) of the Act, as alleged.
As Mahoney continued with his evaluation he told Yearry
that if he were in the Union he would be laid off a lot, and
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111ZIMMERMAN PLUMBING CO.
made other negative comments about the Union. Mahoney
testified that he told Yearry that he had more opportunity
with the Company, and that the would be further ahead to
stay in Respondent’s employment, and that Respondent had
a better program to offer him than the Union did. Mahoney
then showed Yearry his evaluation on the computer screen.
The evaluation include a negative one by Foreman Ware and
Yearry complained that he did not think that the evaluation
was fair. Mahoney agreed with Yearry and changed it while
Yearry watched. Yearry signed the evaluation and was given
a raise of $1 an hour.
In the context of the impression of surveillance of union
activities and Mahoney’s other antiunion comments at the
beginning of the evaluation, I find that a further impression
was communicated to Yearry that Respondent knew who
joined the Union, and those who joined the Union could ex-
pect unfavorable treatment but that management could re-
spond to those who did ‘‘stay with the company’’ with posi-
tive evaluation and raises. This conduct also interferes with
the employees’ free exercise of their Section 7 rights and I
find that the Respondent thereby violated Section 8(a)(1) of
the Act, as alleged.
About May 2, Foreman Ware told Lytle that he had been
acting differently and asked him to stay after work. When
they met after work, Ware asked Lytle if the Union had got-
ten to him. Lytle admitted that the Union had contacted him.
Ware asked what he thought about it, and Lytle said that it
sounded pretty good to him. Ware told Lytle that Dan Zim-
merman had told him that the Union would not be accepted,
and Respondent would close its doors. Lytle was an appren-
tice plumber who had become involved in the union drive in
April but at the time of this conversation he had not dis-
closed his views to Ware. As noted, Ware did not testify.
Accordingly I find that Lytle’s unrefuted testimony shows
that the Respondent conduct reflects unlawful interrogation
and a threat of closure, both in violation of Section 8(a)(1)
of the Act, as alleged.
Joe Houseman was a sheet metal apprentice who joined
Local 7 in early May. About a week before his union affili-
ation was disclosed to Respondent in the May 15 letter, Rob-
ert Link, who then was Respondent’s sheet metal super-
intendent, approached him at the Thornapple jobsite and
asked him if he had been contacted by the Union. Houseman
testified that he said no and that Link then said that they
would just close the doors and would not negotiate with the
Union and everybody would be out of a job. A few days lat-
ter Houseman was approached by Foreman Ware who asked
how he felt about what had been transpiring during the past
2 weeks. Houseman asked him if he was referring to the
Union. Ware said yes and Houseman then said that he
thought it was great that the plumbers had declared their sup-
port for the Union. Ware spoke about his own bad experi-
ence with union’s and then told him to call Robert Link and
to tell him that he supported the Union.
The next day Houseman telephoned Link and told Link
that he had previously lied and he admitted that he had been
approached by the Union and that he was going to support
it. Link swore at him for having lied to him but added that
he respected his decision as a man.
On May 11, apprentice sheet metal worker Steve Stone
was approached by Bart Bartholomew, the foreman who
oversaw the Oshtemo Post Office project where Stone was
assigned (this was a prevailing wage project, which meant
that Stone was receiving nearly $18 per hour rather than his
normal $11-per-hour rate). Bartholomew said that there was
union talk in the wind and that Stone was a good worker,
and that he wanted to be able to recommend Stone for a pre-
vailing wage supplement. Bartholomew explained that there
was going to be a problem in the future with the requisite
ratio of journeymen to apprentices, and to resolve this prob-
lem that they would have to pay either Stone or the other
apprentice on the job, Leonard Orem, as a journeyman. Bar-
tholomew added that he would not be able to recommend
Stone to the owners for this journeyman’s position unless he
knew how Stone felt about the Union and he also added that
he was speaking for Mahoney. Stone, who had not as of that
point made his prounion sympathies known, said that he felt
uncomfortable talking about the issue and that he chose not
to make his views known one way or the other. Bartholo-
mew testified that he had talked to Stone about being paid
as a journeyman, and asserted that in a latter conversation he
told Stone that he had given up his business to come work
for Respondent and said that he was totally committed to
them, and asked Stone, ‘‘How about you?’’ and that Stone
said that he did not want to talk about it. Bartholomew reluc-
tantly admitted on cross-examination that he was inquiring
about Stone’s union views for his ‘‘own personal knowl-
edge’’ and that he had reported his conversation with Stone
to Mahoney.
Here, my evaluation of witnesses Stone and Bartholomew
leads me to conclude that Bartholomew tended to be some-
what evasive while Stone’s testimony was more straight-
forward and persuasive. Accordingly, I credit Stone’s recol-
lection of the conversation.
The testimony by Houseman was denied in part, by Robert
Link who testified as follows:
Q. BY MR. KOK: Now, Mr. Houseman testified that
you said that the company would not negotiate with the
union. Did you say that?
A. I don’t think I said that, because the last time we
had gone through something like this, my understanding
was we were still in negotiating with the union—nego-
tiations. I don’t think negotiations were ever broke off.
Q. Listen to the question again.
A. No, I did not say that.
Q. All right. Did you tell Mr.—Mr. Hausman also
testified that you said that the company would just
close its doors. Did you say that or anything like it?
A. No, I did not say that.
Q. And you testified that you said that everyone
would be out of a job. Did you say that?
A. No
Q. Did you talk about how busy Zimmerman was
when it was union as compared to how busy it was
when it was non-union?
A. Yes.
Q. What did you say about that?
A. That we had a lot more work being non-union
than when we were in the union.
Q. Now, Mr. Hausman testified—and I think this is
his direct word. That you drilled him about the union.
Did you ask more than one question about his interest
in the union?
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112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. It was more of a conversation and just my telling
my experiences with him. I didn’t—like I said, I asked
him once or twice what his feelings were. That’s when
he offered that his father and mother were in the union,
a union.
The record shows that Robert Link, until and even after
he was advised to listen to and to respond directly to ques-
tions, gave rambling, indirect answers that often tended to
beg the question or provided excessive, volunteered informa-
tion. Link’s testimony also shows that Link and Houseman
perhaps had more than a casual work relationship and that
they sometime engaged in friendly, afterwork conversations.
Link and Respondent’s counsel, however, pushed the subject
of these other conversations into an attempt to discredit
Houseman by recounting scandalous or embarrassing ac-
counts of Houseman’s personal life.
Here, the Respondent also attempts to minimize the nature
of Link’s alleged remarks as jokes relating anecdotes he
heard when he was in the Union and as mere casual banter
among friends. The Board, however, recognizes that state-
ments which convey a threat but are spoken as a friend (and
here coming from one who is part of management and close-
ly related to ownership), are of greater impact in view of the
source, see Sage Dining Service, 312 NLRB 845, 846
(1993).
Under these circumstances, I credit Houseman’s recollec-
tion of his conversation with Link as the most believable.
This is especially true since the conversation is closely tied
to and interrelated with the unrefuted testimony of his con-
versation with Ware, which led to the second critical con-
versation with Link where the alleged statements were made.
Accordingly, I find that both Link and Ware made the state-
ments attributed to them by Houseman in their roles as both
supervisors and agents of the Respondent. I further find that
the questions by Ware and Link under these circumstances
and their remarks about the company closing constitute un-
lawful interrogations and threats which are violations of Sec-
tion 8(a)(1) of the Act, as alleged. I also find that Ware in-
sisted that Houseman discuss his views with management is
another violation of Section 8(a)(1), see Albertson’s, Inc.,
307 NLRB 787, 794 (1992); and I find that Bartholomew’s
unlawfully interrogated of Stone with respect to his union
sympathies and his implicit offer of a journeyman’s position
or pay if Stone declared his opposition to the Union, also
violate Section 8(a)(1) of the Act as alleged.
C. Motivation
In proceedings involving changes in conditions of employ-
ment and disciplinary action against employees, applicable
law requires that the General Counsel meet an initial burden
of presenting sufficient evidence to support an inference that
the employees union or other protected concerted activities
were a motivating factor in the employer’s decision to
change their conditions of employment or to discipline them.
Here, the record shows that the Respondent was aware of the
employees’ union activity. The credible evidence also shows
that it interrogated employees and speculated about the sym-
pathies of others and knew of some expressed supporters
prior to May and then it was specifically informed of the
identity of seven named union organizers. It also engaged in
several unfair labor practices, as discussed above, which in-
cluded statements by Owner Mahoney and several super-
visors or agents that clearly shows antiunion animus.
Other indicia of motivation including the timing of the Re-
spondent’s various reactions, several of which occurred
shortly after the Union’s identification of a union organizing
committee and, under these circumstances, I find that the
General Counsel has met his initial burden by presenting a
prima facie showing sufficient to support an inference that
the employees’ union activities were a motivating factor in
Respondent’s subsequent decision to change the conditions
of employment and to discipline certain of the employees
who were among the active union supporters. Accordingly,
the testimony will be discussed and the record evaluated in
keeping with the criteria set forth in Wright Line, 251 NLRB
1083 (1980), see NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983), to consider Respondent’s de-
fense and whether the General Counsel has carried his over-
all burden.
D. Transfer and Grouping Together of
Union Organizers
As noted, the Unions sent letter to the Respondent naming
those on the organizational committees. They were as fol-
lows.
Plumbers Union—
(May 5)
Sheet Metal Union–(May 15)
Jeff Yearry James Fogoros
Todd O’Brien Joe Houseman
Andy Lytle Tim O’Brien
Steve Stone
A few days after May 5, Mahoney abruptly and without
explanation transferred Yearry to the Thornapple Manor job-
site where Lytle and Todd O’Brien had been working. On
May 15, Respondent transferred Fogoros and Tim O’Brien to
the Thornapple jobsite where Houseman had already been
working. Stone was not transferred to Thornapple but was
taken off of a prevailing wage Post Office job and was trans-
ferred to Portage Northern jobsite, before the Post Office job
was completed.
Fogoros was abruptly transferred from the Portage North-
ern job (where he was sheet metal foreman) when the project
was not close to completion. Respondent explained that at
the Portage Northern school project, Fogoros worked an
evening shift, and at Thornapple Manor he could work a day
shift, what Fogoros usually preferred to work. However, at
the time of his transfer normal day operation of the school
were about to be end for the summer and there was no
longer a need for an evening shift in lieu of day work and
the work at the jobsite was completed by employees working
on a day shift.
When Fogoros arrived on the Thornapple Manor jobsite on
May 16, he was directed by Ware and Mahoney to take over
as sheet metal foreman from Houseman and he was given a
dollar-an-hour raise. However, unlike when he served as
foreman in the past, he was not assigned to check and initial
the sheet metal workers timecards; this job was given to
Ware, the plumbing foreman. Fogoros’ tenure as foreman on
the job was also short lived and not long after assuming the
job, Robert Link came on site and assumed the foreman’s
duties from Fogoros and his raise was taken away. No reason
or explanation was even given directly to Fogoros for being
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113ZIMMERMAN PLUMBING CO.
removed and Yearry also was transferred with no expla-
nation.
Tim O’Brien was removed from his position as fabricating
shop foreman and was transferred to Thornapple Manor on
May 15 less than 6 weeks after receiving a pay raise and a
favorable evaluation, and after he had implemented a number
of improvements in the shop. Respondent maintains that the
latter action occurred so that employee Tim (sometimes
spelled Timm in Respondent’s documents), Bartholomew
(son of Foreman Harold Bartholomew) who was returning
from a medical leave, could work a light duty assignment.
The Respondent did not explain why they chose to replace
O’Brien instead of the other shop employee Woody Gabbard
(who was viewed as incompetent in the eyes of Tim Bar-
tholomew). Others in the shop at that time were temporary
employees, yet Bartholomew (who spent a week training
under O’Brien before O’Brien’s transfer), in response to Re-
spondent’s counsel’s questions, began to gratuitously dispar-
age not only the other regular employee but also Tim
O’Brien and his control over the quality of work going from
the shop to the field. These reasons were not given by man-
agement as a cause of Tim O’Brien’s transfer at the time.
This disparagement also is inconsistent with the contempora-
neous evaluation and pay raise given to O’Brien and I find
that the disparagement of O’Brien abilities at the hearing re-
flects a pretextual justification that suggest that the reason,
as discussed below, was motivated by the union activities of
Tim, his brother, and the other union organizers. Stone was
not given a reason for his transfer off the Post Office job but
it occurred shorted after Bart Bartholomew had interrogated
him about his union views and implicitly offered him a jour-
neyman’s position on that job he if came out against the
Union.
As pointed out by the Court, in Transportation Manage-
ment Corp., supra:
[A]n employer cannot simply present a legitimate rea-
son for its action but must persuade by a preponderance
of the evidence that the same action would have taken
place even in the absence of the protected concerted ac-
tivity.
Here, the Respondent asserts that its employees are rou-
tinely transferred for a variety of reasons including decreased
manpower needs, different phases of projects, and need for
various expertise.
It points out that Yearry repeatedly worked at the
Thornapple Manor jobsite from January through as recently
as April 24 and 25 and then was merely transferred back to
the Thornapple jobsite on May 10. It also states that Fogoros
was transferred to Thornapple Manor to assume the foreman
responsibilities previously held by Houseman and that
Mahoney told him it was because Houseman’s performance
had not lived up to the Respondent’s expectations. Fogoros
was selected because Mahoney felt he could handle the
project, also the phase of the Portage Northern job which
Fogoros was currently working on was scheduled to come to
a close and he felt Fogoros was not competent to handle the
subsequent phase of that project. Third, Wedig, who replaced
Fogoros as foreman at Portage Northern, had been requested
by the general contractor at the Portage Northern jobsite and
Fogoros lived only 20 minutes from the Thornapple Manor
project, the closest of any of the possible foremen, also and
these consideration were said to have contributed to
Mahoney’s decision.
The Respondent also contends that when Tim Bartholo-
mew became available for light duty on May 10, he met with
Mahoney who determined that the position of shop foreman
(in lieu of O’Brien), would fulfill Bartholomew’s light duty
restrictions and that his field experience would be useful in
solving some lingering problems in the sheet metal shop. It
also states that in May, it was working at three major
jobsites with the Post Office winding down and Portage
Northern and Thornapple entering more intensive phases, so
that Forgoros, O’Brien, and Lytle were sent to Thornapple
and Wedig and Stone went to Portage Northern.
Here, the Respondent has offered a listing of seemingly le-
gitimate business reasons for moving Yearry, Fogoros, and
O’Brien to where three other union organizers already were
working, however, the result of its moves effectively seg-
regated six of the seven union organizers together and it oc-
curred shortly after the Respondent’s unlawful interrogation
of these same employees, and almost immediately after the
Respondent received official notification that they were
members of the organizing committee (first Yearry after the
May 5 letter, then Fogoros and Tim O’Brien after they were
named in the May 15 letter). The transfers also were accom-
panied by the reassignment of the owner’s son and super-
visor, Robert Link, to the same jobsite (shortly thereafter),
where he coincidentally was placed in a position where he
could monitor and observe their action (and where the orga-
nizers would not have easy access to most other employees).
Moreover, in mid-May, these employees were instructed by
Foreman Ware that they would no longer be allowed to take
their company tools home at night as they had been doing
and they were told to lock their company owned tools in the
gang box on the jobsite. Mahoney admitted that this was the
only jobsite where employees were required to turn in their
company tools at the end of work day (allegedly because this
was the only site with problems where tools were stolen or
left off site). Ware, however, told Houseman the reason for
having them turn in their tools and leave them each night
was because union bylaws would not allow it.
Shortly thereafter the Respondent had the job trailer
locked on the Thornapple jobsite. Foreman Ware told the
employees that they would no longer be able to go in the
trailer and that he would get what they needed from the trail-
er. Before this time, the employees had been allowed to go
into the trailer, to look at prints, to take breaks, and to get
tools (where the first aid kit, and the phone were also lo-
cated). No explanation was given to the employees at the
time but the Respondent said it do so because some employ-
ees had apparently observed billing records in the trailer and
reported suspected irregularities to the project owner. The
Respondent asserts that this ‘‘disloyalty’’ would justify dis-
ciplinary action, however, it failed to act against any individ-
ual.
Ware’s unrefuted statement shows that the employees were
denied the privilege of bringing their tools home at night be-
cause they had become union members and that this is a vio-
lation of Section 8(a)(1) of the Act, see Domsey Trading
Group, 310 NLRB 777, 785–787 (1993), and his unexplained
action in limiting normal access to the job trailer also tends
to interfere with their rights protected by Section 7 of the
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114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Although Stone was not included, he went to another jobsite as
the helper/apprentice to foreman Wedig where he also would be
somewhat isolated.
Act, as alleged. See Miller Group, Inc., 310 NLRB 1235
(1993).
In view of these additional circumstances and the Re-
spondent’s overall pattern of reaction against these same
union organizers on subsequent occasions (as discussed
below), I find the Respondent’s overall justification for its
action to be weak and unpersuasive. Accordingly, I conclude
that the Respondent has not shown that it would have trans-
ferred three employees and thereby isolated six of the seven3
identified union organizers together on the same jobsite were
it not for it belief and concern over the union organizational
activities of a group of its employees and I find that the Gen-
eral Counsel has shown that this conduct violates Section
8(a)(1) and (3) of the Act, as alleged.
E. Prohibition of Union Stickers on Hard Hats
After the Unions identified the members of their organiz-
ing committees in the faxed letters to the Respondent, the
named employees began to demonstrate their support for the
Union by wearing stickers on their hardhats. On June 16,
Robert Link told them that wearing such stickers was consid-
ered defacing company property and he issued verbal rep-
rimands to Fogoros, Yearry, Houseman, and Lytle. This was
the first time that they had been advised that they were not
allowed to wear stickers on their hardhats. Link issued these
same employees a second verbal reprimand on June 20 for
the same reason and they complied with their directive the
next day.
At this same time Mahoney held a meeting at the Portage
Northern jobsite and told employees they were not allowed
to put stickers on their helmets. Stone, who had started wear-
ing union stickers on his helmet, took them off Mahoney’s
presence but he left large ‘‘yellow arrow’’ stickers on, stick-
ers which he had worn on his hat since August 1994.
Mahoney said nothing about the other stickers. During the
meeting Stone asked if employees could buy their own
OSHA approved helmets and place stickers on them and
Mahoney said they had to wear the helmets provided by the
Respondent.
Tim O’Brien reported to the Portage Northern jobsite on
August 8 with Union stickers on his company-provided hard-
hat. Foreman Wedig told him to remove the stickers and
when O’Brien declined, Wedig sent him home. O’Brien met
with Owner Dan Zimmerman the following morning, and
Zimmerman gave him a suspension letter and told O’Brien
that he would be discharged if he did not take the stickers
off his helmet. O’Brien agreed to comply but Zimmerman
sent him home for the rest of the day. The disciplinary letter
issued to O’Brien stated that the stickers were in violation
of OSHA policy, that they were in violation of the Compa-
ny’s no-solicitation rule, and that the stickers ‘‘disfigured’’
company property.
A employee meeting was held on August 10th in which
Mahoney again instructed employees not to wear union stick-
ers on their hardhats. Houseman, who was wearing one of
the union stickers on his shirt, asked if they were allowed
to wear stickers on their shirts. Mahoney said, ‘‘[N]o,’’ that
he considered that to be solicitation. Mahoney admittedly
told Lytle on the day before the meeting with employees that
he could not put stickers on his tool box but he denies that
he told Houseman not to have one on his shirt. He admitted,
however, that ‘‘that day or the next (emphasis added) I be-
came aware that he was permitted to wear—or have union
stickers on his personal belonging.’’ He then went to the job-
site and told Lytle that he had been wrong about stickers on
cloths or tool boxes. Although Tim O’Brien said he never
heard the remark to Houseman, it is not clear that he was
there as Houseman merely testified O’Brien ‘‘possibly’’ was
there when (he affirmative named several others), and I find
that O’Brien testimony does not corroborate Mahoney’s. On
the other hand, Mahoney’s testimony shows that he didn’t
become aware of the employees’ rights until August 8 or 9
and his remark to Houseman would be consistent with his
statement to Lytle. Accordingly, I do not credit his denial.
Houseman then asked if they could wear their own hard-
hats and pointed out that the Policy Handbook said that they
were supposed to furnish their own. Mahoney said they were
not required to furnish their own hardhats and they should
not. Otherwise, Houseman testified that he had worn his own
hardhat to work nearly every day from January 1990 until at
least the end of May and only rarely had he been asked to
wear the Company’s brown helmet prior to June 1995.
The company helmets had stickers on them with the Re-
spondent’s logo. Stone testified that he wore nonunion relat-
ed stickers on this hardhat for 2 years and no one ever said
anything to him about it and, as noted, he left them on his
helmet after Mahoney had directed employees to take the
union stickers off and he was not disciplined for this. On
brief the Respondent produced an OSHA regulation which
does not prohibit the wearing of union or other stickers but
provides only that the employer ‘‘shall provide’’ and the em-
ployee ‘‘shall use’’ and ‘‘shall not physically alter’’ head
protection equipment. Moreover, it appears that Respondent
was not concerned about it, until the employees began wear-
ing union stickers on their helmets.
It is well established that an employee has the protected
right to wear union insignia while at work. See Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 801–803 (1945), and
that in the absence of ‘‘special circumstances,’’ the prohibi-
tion by an employer against the wearing of union insignia
violates Section 8(a)(1) of the Act, See United Parcel Serv-
ice, 312 NLRB 596 (1993).
Here, the Company made a blanket prohibition regarding
union insignia on hats and it adamantly insisted that the hats
were company property, that could not be ‘‘defaced’’ with
‘‘[u]nion’’ stickers. On brief it also engages in an extensive
argument which asserts that its rule was longstanding and
was based upon a legitimate and not unwarranted concern
about the threat to safety posed by the use of unauthorized
decoration on the hardhats, citing Standard Oil Co. of Cali-
fornia, 168 NLRB 153 (1967); and Andrews Wire Corp., 189
NLRB 108 (1971). The Respondent also relies upon the
courts decision in NLRB v. Windemuller Electric, 34 F.3d
384 (6th Cir. 1994), in which the court found that:
[E]mployees who are union supporters have no right to
make use of an employer’s personal property for the
purpose of communicating union messages, as long as
the employees can make effective use of their own
property for that purpose.
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115ZIMMERMAN PLUMBING CO.
and that
As a matter of law, therefore, the fact that the hardhats
were Windemuller’s property, provided justification
enough for Windemuller’s refusal to let the hats be
stickered with Union insignia.
The last cited case is at odds with the Board’s findings on
this subject which flow from the Supreme Court’s decision
in Republic Aviation, supra, and under these circumstances,
it would be improper for me to rely on a court of appeals
decision instead of relevant Board decisions on the issues,
see Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984), in which
the Board emphasized that ‘‘it is a judge’s duty to apply es-
tablished Board precedent which the Supreme Court has not
reversed’’ citing Iowas Beef Packers, 144 NLRB 615, 616
(1963). Accordingly, I shall follow the Board’s precedent on
the issue and I find that the Respondent has shown no spe-
cial circumstances (such as those discussed in Northeast In-
dustrial, infra), that would justify its prohibition against
union stickers in this instance. Otherwise, I find that the no
sticker rule in this case was enforced specifically for the pur-
pose of undermining the Union organizational efforts, see
Northeast Industrial Service Co., 320 NLRB 977, 979
(1996); Tualatin Electric, 319 NLRB 1237 (1995); Miller
Group, 310 NLRB 1235 (1993); and Jordan Marsh Stores,
317 NLRB 460, 461 (1995).
Otherwise, it is recognized that the Supreme Court, in
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), said that
[a] labor union has no right to make use of an employ-
er’s real property for the purpose of communicating
union messages, as long as the employees are not ‘‘be-
yond the reach of reasonable Union efforts to commu-
nicate with them’’ by means that do not trespass upon
the employer’s property rights.
Here, however, union stickers on a hardhat at a construction
site do not affect ‘‘real property’’ rights and, in evaluating
a necessary balance between a conflict in fifth and fourth
amendment rights, it would appear that the Board clearly is
justified in allowing other property rights to dominate only
upon a showing of special circumstances. Here, no persua-
sive marketing or safety considerations were offered that
would tend to show any controlling special circumstances
other than the mere claim of ‘‘safety’’ considerations and the
indication that on some past occasions the Respondent had
supported the wearing of color coordinated uniforms and
hats. The employees’ testimony, however, shows that this
was not consistently applied and some employees regularly
wore their own hardhats or hats of a different color, some
with stickers or marking other than company or union identi-
fication. Here, the claim that the union stickers ‘‘defaced’’
or ‘‘disfigured’’ is unsubstantiated and appear to be merely
spurious especially in view of the fact that they were re-
moved on several occasions with no claim of damage, see
the Northeast Industrial case, supra. Moreover, the Respond-
ent inconsistently has maintained work rules that purport to
require employees to provide their own hardhats and, after
union stickers were applied, has denied employees the right
to make use of their own property in lieu of the Respond-
ent’s hats even though it had been allowed in the past.
The record shows that several employees persisted in their
attempts to openly display their support for a union by plac-
ing union stickers on their hardhats. The Company’s attor-
ney, however, had recently represented another employer be-
fore the circuit court and had secured a favorable ruling that
appear to seriously qualify the longstanding Board precedent
on this issue, see the Windermuller case, supra. Thereafter,
the Respondent emphasized a policy seemingly consistent
with the court’s reversal and it strictly pursued enforcement
of its policy. It appears, in effect, that the employees, believ-
ing that they were acting within their Section 7 rights, were
set up by the Respondent to run afoul of its newly found jus-
tification for more strictly asserting an overriding property
right in its hardhats.
Here, I find that the Respondent resorted to the use of its
hardhat property rights not for any legitimate reasons but
merely as a pretext to shield it actual reasons which em-
braced its antiunion motivations to interfere with restrain and
coerce its employees’ attempts to show and solicit support
for union organization.
Support for this conclusion is demonstrated by the Re-
spondent’s actions on August 10, when Mahoney conducted
a meeting for all employees and passed out an amendment
to the Respondent’s no-solicitation policy, which he asked
employees to sign. (The same memoranda was passed out to
employees on other jobsites.) The memo from Mahoney stat-
ed:
HARD HATS ARE FURNISHED COMPANY SAFETY
EQUIPMENT. THEY ARE COMPANY PROPERTY. THEY ARE
NOT TO BE DEFACED IN ANY WAY.
SOLICITATION IS PROHIBITED BY THE COMPANY POL-
ICY.
COMPANY PROPERTY IS NOT BE DEFACED IN ANY
WAY WITH STICKERS OR SOLICITATIONS OF ANY KIND.
THIS IS WRITTEN WARNING TO ALL EMPLOYEES. ANY
VIOLATION WILL BE CONSIDERED AS INSUBORDINATION
AND WILL RESULT IN IMMEDIATE TERMINATION.
The grouping together of hardhats being ‘‘defaced’’ with
the clearly overly broad prohibition against ‘‘solicitation of
any kind’’ together with an additional description as a ‘‘writ-
ten warning’’ and a threat of ‘‘immediate termination’’ for
‘‘insubordination’’ for ‘‘any violation,’’ adds to support for
the inference that the no sticker rule was enforced specifi-
cally for the purpose of undermining the Unions’ organiza-
tional efforts and I find that the Respondent is shown to have
violated Section 8(a)(1) of the Act in this respect, as alleged.
The Respondent’s warning and threat immediately fol-
lowed the Respondent’s apparent decision to challenge the
employees’ use of union insignia on their hats and its verbal
warnings and orders by Bob Link, Mahoney, and Wedig
(who sent Tim O’Brien home on August 8 when he failed
to remove the stickers), and it was not an idle one. The fol-
lowing morning, Owner Dan Zimmerman issued O’Brien a
suspension letter and advised him that he would be dis-
charged if he did not take the stickers off his helmet. Al-
though O’Brien agreed to comply with this demand, Zimmer-
man effectively suspended him and sent him home for the
rest of the day.
Fogoros was required to meet with Dan Zimmerman on
August 11 and he received a disciplinary letter (similar to the
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116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
one issued to Tim O’Brien), for refusing to take off the
union stickers from his hardhat. Zimmerman repeated that
they were not allowed to wear stickers on the hardhats and
also suspended Fogoros for the rest of the day.
On August 18, Lytle showed up at the jobsite at 7 a.m.
with his own hardhat with union stickers on it and wearing
a union shirt. Foreman Steve Zimmerman (son of the owner)
asked him if he was trying to get him to send him home.
Lytle said that he was there to work. Zimmerman asked
where his company shirt was and Lytle pointed out that an-
other employee on the job was not wearing a company shirt.
After calling Mahoney, Zimmerman instructed Lytle that he
could wear the shirt but that he had to take the helmet off.
Lytle pointed out that the policy handbook provided that the
employees were supposed to provide their own hardhats and
Zimmerman called Mahoney again. He then told Lytle that
Respondent had changed the policy, and that either he was
going to wear the company hardhat or be sent home. Lytle
replied that if Steve was going to send him home for follow-
ing Respondent’s policy, that he could do so. This was at
about 7:30 a.m. Lytle asked Zimmerman to sign his timecard
for the week, and after calling Mahoney one more time, Zim-
merman signed the timecard and gave Lytle credit for one-
half hour’s work. About 7:45 a.m., Zimmerman then told
Lytle to go wait for Rick Mahoney by his truck. Lytle waited
by his truck until about 8 a.m. but as he was no longer on
the clock, he walked back to the job trailer and told Steve
Zimmerman that if Mahoney needed to talk to him, he could
reach him at home and he left the jobsite.
Mahoney called Lytle about 11:30 a.m. and said that he
wanted Lytle to come back to work. Lytle responded that he
wanted to work but complained that he had not been treated
fairly, and said that he would get back in touch with him.
Lytle phoned Mahoney at 2 p.m. and left a message
(Mahoney was not in), that he would return to work wearing
the company hardhat but under protest. Mahoney called Lytle
back on August 20 or 21 and told him that he no longer any
work for him but said he was considering having him and
Yearry work split weeks. Lytle said that he would rather
have each of them work every other week. Mahoney said
that he would call Lytle and get back with him but never
did.
Instead, on August 22 Lytle received a discharge letter
signed by Dan Zimmerman that indicated that he was being
terminated for refusing to wear his company hardhat, for
leaving the jobsite at 8:05 p.m., and not waiting for
Mahoney, which the letter indicated was an absence in viola-
tion of the probationary terms of his employment. (As dis-
cussed below, he was placed on probation on June 7, for not
complying with Respondent’s new attendance policy).
As noted, prior to the onset of the union campaign, Re-
spondent rarely insisted that employees wear the company
provided hardhats or that they not have stickers and it was
so unconcerned about this that it never bothered to change
the provision in its work rules stating that employees must
provide their own hardhats. I find that the Respondent’s sud-
den concern with employees ‘‘defacing’’ company property
or wearing the company’s hardhat was simply a stratagem to
prevent the employees from wearing union stickers and a
pretext to allow a crackdown on union organizers. Its overall
actions were motivated by its desire to restrict the employees
exercise of Section 7 rights not only with the union stickers
but also in the several other areas discussed herein, such as
changes in the enforcement of its attendance policy. Other-
wise, the Respondent has not shown any persuasive reason
why it chose to implement and enforce a new hardhat (or at-
tendance) policy at this time. The main intervening event, of
course, was the publication of the names of the union orga-
nizers and the attempts of the employees to exercise their
Section 7 rights. I also find that its claim that Lytle was fired
in part for leaving the jobsite and not waiting for Mahoney
is pretextual as Lytle in fact, waited for Mahoney for ap-
proximately 20 minutes after he was no longer on the clock.
Thereafter, he also made phone contact with Mahoney and
was told that Mahoney was considering having him work a
split shift with Yearry. Under these circumstances, I find that
the Respondent has not shown that it would have issued the
hardhat warnings or issued suspensions to Fogoros, Yearry,
Houseman, Lytle, and Tim O’Brien, and it would not have
terminated Lytle by its letter of August from Owner Zimmer-
man in the absence of the protected union activity. Accord-
ingly, I find that the General Counsel has shown, that the
Respondent violated Section 8(a)(1) and (3) of the Act in
these several respects, as alleged.
F. Respondent’s Attendance Policy
In February 1993, Respondent established a so called ‘‘no-
fault’’ attendance system. However, its policy was rarely, if
ever enforced. The record shows that in June 1995, Respond-
ent suddenly began applying the policy and all seven mem-
bers of the organizing committee were given attendance
warning letters. Todd O’Brien, Lytle, and Houseman were
given ‘‘final’’ warning letters which stated that if they had
any additional unexcused absences or tardiness within the
next 90 days they would be terminated but Todd O’Brien
was issued a revised final warning letter on June 26. (After
his first warning letter, he missed 2 additional days’ work,
June 20 and 21. The revised June 26 letter incorrectly refers
to these dates as June 21 and 22.) He came to work with
the flu on June 20 and was so sick he was throwing up in
the bathroom. He asked his foreman for the rest of the day
off, and his foreman referred him to a doctor.
On brief, the Respondent explains that the no fault attend-
ance policy means that the employee can be absent for any
reason, or no reason, the company does not care at the policy
does not take into account the reason. As a result the burden
falls on the employee to determine whether or not they can
afford to be absent (five unexcused absences in a 12-month
period) and to judge their actions accordingly. It also notes
that it provides its employees with paid vacation and per-
sonal days, that paid vacation time off must be approved at
least 30 days in advance, that additional unpaid vacation time
is also available, that employees are not required to request
vacation time in order to receive vacation pay, what pay may
be taken at any time (however, the receipt of vacation pay
does not make an unexcused absence ‘‘excused’’), that per-
sonal days must be requested at least 2 days in advance (the
foreman must be notified) that there is no limit on the num-
ber of personal days an employee may request, and that per-
sonal days and vacation time off are ‘‘excused’’ absences.
Wholly separate from this policy, is a requirement that the
employee call in regardless of the reason they are going to
be absent. Otherwise, the Respondent asserts that when it in-
stituted its no fault policy in February 1993, it did not have
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117ZIMMERMAN PLUMBING CO.
any system in place which could alert it to any significant
abuse of its policy but first became aware that employee Dan
Thomas had an attendance problem in November 1994. An
audit of his records disclosed that he had 44 unexcused ab-
sences during a 1-year time period. As a result, he was
placed on probation and told additional absences would re-
sulting in a meeting with management. He again missed
work a few days later and was terminated.
Thereafter in February or March 1995, Dan Zimmerman
instructed office employee Theresa Hazard to start an exten-
sive audit of all hourly employee time cards and personnel
files in order to disclosed whether any other employees had
attendance problems. She testified that the audit involved re-
viewing employee timecards and determining all absences.
She then reviewed the employee’s personnel file to attempt
to match up any excused absences with those reflected on
her initial report. The result of this audit was set forth in Re-
spondent’s Exhibit 43 which contains the unexcused absence
history of hourly employees.
Bruce Link testified that management was stunned with
the results of this audit, and that it disclosed that Zimmerman
could have fired over half the company for attendance. He
said that rather than firing all the employees who exceeded
five unexcused absences, management chose to place the
nine worst offenders on probation. It said Todd O’Brien,
Lytle, and Houseman were the three employees with the
worst attendance records with over 20 unexcused absences
each in a 1-year time frame.
Respondent’s attendance policy set forth in its policy
handbook specifically provides:
The company is instigating a ‘‘No-Fault’’
tardiness/absenteeism policy. This simply means the
company will not evaluate any excuses or reasons when
an employee calls the office to advise he will be late
or absent. The employee must call prior to starting time
for any reason. The employee should also contact his
foreman when possible. Excessive tardiness/absenteeism
(more than once in a 30 day period off 5 times in a
12 month period) is considered grounds for dismissal.
. . . .
Note that an absence without phoning the office
prior to staring time is considered immediate grounds
for dismissal.
In addition, the Policy Handbook provides:
‘‘PERSONAL DAYS’’ are defined as days or partial
days taken off without pay for what ever reason. In
general, the employee recognizes the need for personal
days and will strive to cooperate. The employee should
make arrangements as far in advance as possible, or in
the case of any emergency, call in prior to starting time.
Less than two days advanced notice or lack of approval
by the foreman or supervisor will result in the personal
day being counted as an absence.
Here, the record shows that a great deal of ambiguity ex-
ists between the types and descriptions of absences, how dif-
ferent people interpreted then, and how they were applied.
Clearly, the ‘‘No-Fault’’ absenteeism policy was not en-
forced and uncontroverted evidence demonstrates that prior
to June 1995, the Respondent did not discipline or discharge
employees because they were tardy or absent more than once
within a 30-day period or five times within a year, as the
written policy provides. Moreover, the most flagrant violator,
with 44 absences, first had apparent verbal warnings by
Mahoney and ‘‘several job foreman’’ then was given a final
written warning on January 27 and thereafter terminated for
a new violation.
The employees testified that the practice for requesting
‘‘excused’’ time off prior to June 1995 was generally that if
an employee knew he needed the time off enough in advance
he could make a written request, but if the employee needed
a day or two off, or a few hours off, or did not know he
needed to take the time off in advance, he would generally
ask his foreman or supervisor for verbal approval. Their tes-
timony shows that Respondent’s claim that in order to be ex-
cused, all requests for time off, had to be in writing and ap-
proved by Mahoney was not accurate or was not followed.
Thus, while written requests for time off were sometimes
used, employees routinely made oral requests to their fore-
man for time off, were allowed to take this time off and
were not disciplined for it when their absences exceeded five
in a year.
As pointed out by the General Counsel, Todd O’Brien had
at least 10 occurrences of absenteeism or tardiness, not in-
cluding vacation time, from about the first of January 1994
until November 19, 1994, with only 4 written requests for
time off in his file for this period. Stone testified that he
never made a written request for time off, had about 20 oc-
currences of tardiness or absenteeism from January 1 until
August 13, 1994, Yearry had about eight occurrences of ab-
senteeism from January 8 until November 5, 1994, and two
requests for time off during that period. Tim O’Brien had
about 19 occurrences of tardiness or absenteeism from Feb-
ruary 2 until October 22, 1994, for which he received no dis-
cipline. Fogoros had about 18 instances of absences or tardi-
ness during the period from January 1, 1994, until January
7, 1995, and only two written requests for time off in his
personnel file for that period. The warning letter issued to
Houseman also lists 10 occurrences of absences in 1994.
Prior to June 1995 Todd O’Brien and Yearry had never re-
ceived any prior written or verbal warnings with respect to
their attendance. Stone did receive one in August 1991 and
Lytle had received a warning letter in February 1993 for not
calling in, and that discipline had been rescinded with a nota-
tion that no warning would be issued because the call in pro-
cedures were not clear. The only prior warning Fogoros had
was an attendance warning dated February 16, 1993, but it
was retracted when Fogoros explained the reason for his ab-
sence. Tim O’Brien had just one prior write up in his file
for attendance, one he received in July 1993 for not showing
up or calling in. The only other writeup that Joe Houseman
had received for attendance was dated May 23, 1993, by Bob
Link (as sheet metal manager), who expressed his concern
that his current lifestyle and problems with alcohol caused
him to miss a scheduled workday.
The record also shows that employee Bruce Sexton was
shown to have 35 unexcused absences in the audit time pe-
riod. However, Mahoney reached an agreement with Sexton
whereby the Respondent agreed to allow Sexton an unlimited
number of absences in order to accommodate his migraine
headaches (assertedly in keeping with the Americans With
Disability Act, 42 U.S.C. § 12101, et seq.). Zimmerman re-
quested documentation from Sexton’s doctor confirming that
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118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he did in fact suffer from migraine headaches but was not
concerned with and did not request documentation Sexton’s
individual absences (assertedly because of the provision of
42 U.S.C. § 12112).
Although the Respondent asserts a great surprise over
finding out that it had an attendance problem with one em-
ployee and further asserts an extremely serious business con-
cern in dealing with the problem, it sat on its hands from
February or March, when it purportedly ordered a total audit,
while its personnel clerk slowly took 2 or 3 months to re-
view the records of 30 or fewer employees. The audit results
blossomed in June, just a few weeks after the union orga-
nizer identification letters of May 5 and 15. This audit also
counted as occurrences absences or late arrivals where the
employee had given oral notice and had received verbal ap-
proval. No one was warned that their seemingly approved
‘‘no fault’’ absence would be considered to be unexcused
and would count against them for disciplinary reasons. In
fact, and despite the time purportedly taken to compete the
audit, numerous entries were made for unexcused absences
dates for which employees had obtained prior verbal and
sometimes written approval. For example, Tim O’Brien testi-
fied that he periodically had to take time off to take his
daughter to the hospital in Ann Arbor for treatment and test
for her congenital liver condition. Sometimes he made a
written request for this time off, but generally he just made
an oral request and it was approved by his foreman. His
weekly timecards for the weeks ending May 14 and 24,
1994, indicate that he took personal time off for this purpose.
On August 2, he made a written request for taking August
22 off due to a court date (for child custody, apparently) and
August 23 off because of his daughter’s doctor’s appoint-
ment. It was approved. He also took 2 weeks off prior to Au-
gust 22 to take care of his children during the time of his
divorce. He informed Bob Link at the time, and Link advised
him to send a letter into Respondent explaining the situation,
which he did. Before June 7 it was never indicated that he
would be subject to any discipline for taking this time off
and, despite the written and verbal approval that he had for
taking these days off, these occurrences were included in the
June 7 warning letter as unexcused absences.
Lytle’s warning letters also included as unexcused ab-
sences for which he had received written or verbal approval
and the audit counted as unexcused absences, September 1
and October 10, 1994, days for which Lytle obtained prior
written approval to take off. Respondent also counted as an
unexcused absence a day he left early because his mother
was having emergency surgery and he received a verbal okay
from foreman Ware to take this time off. (Ware wrote a note
to this effect which was placed in his personnel file.) Simi-
larly, the June 7 warning letter issued to Fogoros included
as unexcused absences for which he had receive either verbal
or prior written approval and his warning letter even listed
5 hours of unexcused absence for May 15. This was the day
that Mahoney told him not to report to the Portage Northern
job but to report to Thornapple Manor the following day.
Houseman met with Dan Zimmerman on June 13 to discuss
his June 7 warning letter and he refuted the statement in the
warning letter that he had been warned verbally by Bob Link
and his job foreman about his unscheduled absences, how-
ever Zimmerman merely replied, ‘‘That’s your word against
ours.’’
No special consideration was given to the circumstances
surrounding the asserted absence occurrences for the seven
union organizers, however, it did so for Sexton who was not
a union supporter and who was allowed to provide a letter
from his doctor dated March 1, which stated that Sexton had
been under this doctor’s care for migraine headaches, insom-
nia, and other problems, a letter which also stated, ‘‘During
this period, [Bruce Sexton] has not specifically asked for any
notes off of work and has not been seen at this time where
he has missed work.’’ Sexton’s personnel file contained eight
notes from his foreman complaining about his absenteeism,
and the scheduling problems he caused during the months of
March, April, May, and June 1995, however, no discipline
or warning was issued as it was to the alleged discriminatees
herein, despite the fact that with one exception for House-
man, there were no reference to scheduling or other problems
caused by their absenteeism.
Following his June warning letter and Stone’s participation
in the strike, Stone did not report to work the first day after
the strike ended August 7, but called in sick that day. He
then took off August 17 because he had to drive his brother
to the Chicago Airport and told foreman Wedig on August
14 of this plan. Wedig said fine and that he would see him
when he got back. On August 16 he reminded Wedig that
he was going to take the day off and Wedig said that he had
forgotten to tell the office. Stone then called Mahoney and
explained the situation but Mahoney said that he could not
sanction it, and Stone said that he had to take the day off.
In an August 18 letter, Mahoney put Stone on final warning.
A final warning letter also was issued to Tim O’Brien on
August 18, which listed as two unexcused absences for Au-
gust 15 and 16, which he had again taken off to take his
daughter to Ann Arbor for a doctor’s appointment as he had
often done in the past. On this occasion O’Brien advised
Foreman Wedig before the week of August 12 and the Mon-
day before he left that he would be taking these 2 days off
for this purpose and he received verbal approval. The warn-
ing letter also listed as an unexcused absence August 8, the
date that Tim O’Brien was suspended unlawfully for wearing
union stickers on his hardhat.
Fogoros was issued a final warning letter for attendance on
August 21. The only additional occurrences on that letter
were for 15 minutes on August 7, when he left the jobsite
with the permission of his foreman to make a telephone call,
and for 4.5 hours on August 8 when he was sent home un-
lawfully for wearing union stickers on his hard, and on Au-
gust 21 when he went home sick after Stone had been sum-
marily terminated.
On August 22, 1995, the members of the organizing com-
mittee, including Todd O’Brien, went on another unfair prac-
tice strike to protest Stone’s termination. The strike notice
which was delivered to the Respondent indicated that the
strike was to begin at 8 a.m. and named Todd O’Brien as
one of the strikers.
On August 23, 1996, the second day of this unfair labor
practice strike, Respondent discharged Todd O’Brien. Re-
spondent’s letter which referred to the fact that he had been
placed on probation in June because of his attendance stated:
On August 22, 1995, you were scheduled to report for
work at the Wal-Mart site in South Haven at 6:30 a.m.
You were not at the jobsite at that time, nor had your
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119ZIMMERMAN PLUMBING CO.
attendance been excused. Shortly after 8:00 a.m., Zim-
merman received notice that you were on strike as of
8:00 a.m., August 22, 1995. However, this does not ex-
cuse your absence from the jobsite at 6:30 a.m. on Au-
gust 22, 1995. As a result your employment with Zim-
merman is terminated effective today. August 23, 1996.
Here, the Respondent asserts a legitimate concern over an
attendance problem it suddenly became aware of in late
1994. It promptly acted against the single most serious viola-
tor and then conducted a leisurely audit of other employees
and when the results came in June 1995, it responded with
warning to nine employees, seven of whom had been identi-
fied by their Unions as union activists and it also imposed
a much more strict interpretation and application of its at-
tendance policy.
The timing of the initial warnings, a few weeks after the
employee’s public disclosure of their union sympathies raises
the first indication that the Respondent’s asserted reasons re-
quire closer scrutiny and it appears that the surrounding cir-
cumstances tend to support skepticism rather than any per-
suasive evidence that the Respondent would have followed
this same course of conduct regarding so called employee
‘‘attendance’’ were it not for the union activities which de-
veloped in May. As noted above, the change in its attendance
policy and its enforcement occurred at the same time it was
pursuing an improper line of conduct relative to the employ-
ees’ rights to display union insignia and its manager and sen-
ior foreman also had engaged in various other violations of
employees Section 7 rights.
The Respondent’s audit appears to be substantially inac-
curate and unreliable as a real gauge of absenteeism with re-
spect to many absences that had written approval or at least
verbally approved and I am not persuaded that the Respond-
ent would have so abruptly altered it past practices regarding
what would be considered an absence ‘‘occurrence’’ that
would count against its published five violations in a year
policy. Its policy and past practices were ambiguous at best,
yet the Respondent made no attempt to calmly assert applica-
tion of an understandable policy but instead abruptly began
to consider absences that employees thought covered by
verbal permission as occurrences to be subject to discipline
and it assertedly was ready to consider terminating half of
its work force! Moreover, it allowed no explanations or re-
view of the accuracy of its audit for any of the union sup-
porters and just relied on its ‘‘no fault’’ language.
It did, however, give special consideration to employee
Sexton and his 35 absence occurrences because of his mi-
graine headaches. By the same token, it failed to give consid-
eration the nature of the absences by Tim O’Brien who peri-
odically took his daughter (O’Brien had at least joint custody
of his children and his daughter was diagnosed with liver
disease at age 3 months and periodically had to receive tests
and monitoring at medical facilities in Ann Arbor), and such
consideration would be consistent with the laws relating to
family leave concepts. Moreover, although it accommodated
Sexton’s headaches out of concern for the Americans with
Disability Act, it did not give that possible consideration to
any of Houseman’s absences, even though Robert Link
sought to disparage Houseman with references to a problem
with alcohol, a disability that would also appear to be cov-
ered by the same policy.
Instead, the Respondent harshly applied a most restrictive
interpretation of its ambiguous ‘‘absence’’ rules in a manner
inconsistent with its past practices. Under these cir-
cumstances the facts do not persuasively show that the Re-
spondent would have issued the warnings in June or have
taken the other severe actions discussed above related to en-
forcement of its attendance policy in the absence of the em-
ployees’ protected union activity. Accordingly, I find that the
General Counsel has carried its overall burden and shown
that the Respondent has violated Section 8(a)(1) and (3) of
the Act in these respects, as alleged.
G. Apprenticeship Program
In June 1995, part owner, Bruce Link, took over the ad-
ministration of the apprenticeship program from his son Rob-
ert Link and on July 13, he sent a letter to the active appren-
tices which stated, ‘‘[E]ffective July 24th, all Zimmerman
apprentices will be required to attend school a minimum of
4 hours per calendar week. Failure to attend the minimum
4 hours per week will result in immediate expulsion from the
program. There will be no exceptions.’’ Bruce Link testified
that with the exception of Tim O’Brien and Stone who were
on strike at the time, he met with each of the apprentices in-
dividually to explain the new policy. Link explained that he
chose 4 hours because he calculated that employees would
have to attend 4 hours per week in order to complete the ap-
prenticeship program within 4 years. Stone did not attend
any additional apprenticeship schooling after receiving the
July 13 letter; he was removed from the program (as were
two others not involved in union organizing), and a charge
filed regarding his removal was dismissed after investigation.
Tim O’Brien, however, called Bruce Link and asked if he
would be allowed to take the summer off and not attend
classes, as he had in the past. Link indicated that he was ex-
pected to attend the minimum of 4 hours a week and he
began to comply. Thereafter, Link received printouts each
week from the apprenticeship school which detailed the
hours the apprentices had attended class. Employee Steve
Randolf, who was not a union supporter, did not attend
school at all the first 3 weeks following the implementation
of the program. Bruce Link claimed that he tried to contact
him by phone to see why he did not attend but he was un-
able to do so. On the other hand, Tim O’Brien met the mini-
mum attendance requirements during the first 3 weeks of the
program, but was unable to attend class during the week of
August 14. On August 18, Bruce Link telephoned him and
sent a confirming letter that stated that his failure to attend
the minimum of 4 hours class time during the week of Au-
gust 14 was unacceptable. The letter also indicated that Tim
O’Brien had to sent a letter to Respondent by August 21 in-
dicating why he had missed the previous week and ordered
that he had to attend a minimum of 8 hours of class time
during the week of August 21. The letter further provided
that if he failed to meet these requirements he would be im-
mediately terminated from the program. O’Brien sent the re-
quested letter and went to the apprenticeship school for 8
hours the following week. No warning letter was sent to
Randolf even though he had missed 3 straight weeks of the
program. The attendance records also demonstrate that Leon-
ard Orem did not attend for first 3 weeks of the program and
his name did not appear on the records at all in August.
Bruce Link requested that Orem get a letter from the school
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120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
verifying that he had attended class. However, the letter he
obtained only stated that he attended school on August 16,
17, and 30. He did not attend the first 3 weeks of the new
program and no disciplinary letter was issued.
During September, Tim O’Brien missed 15 minutes of
class time during the week of September 4 and did not attend
classes during the week of September 18 when he was on
layoff. Bruce Link sent him a letter on September 27 termi-
nating him from the program unless he documented that the
information was wrong. On the other hand, Orem was al-
lowed to take off 2 additional weeks from the program in
September due to his honeymoon.
Here, the Respondent again has presented a reason for its
action with O’Brien, however, other facts of record shown
that he was treated in a disparate manner as compared to
some others in the program. These others were given much
greater latitude in bringing themselves into compliance with
the requirements, they were not threatened with immediate
termination if they did not make up lost weeks, and they
were not terminated for their noncompliance with the strict
letter of Link’s policy. The inclusion of September 4 as a
miss when O’Brien was credited with 3 hours and 45 min-
utes rather than a full 4 hours and the next week he was on
layoff would seem to be subject to possible explanation, yet
O’Brien was not given the opportunity to explain but was di-
rected to do the impossible, provide contradictory ‘‘docu-
mentation.’’
Here, the Respondent’s explanation of its treatment of
O’Brien appears to be pretextual and I conclude that it has
not persuasively shown that it would have taken the same
hard line with O’Brien in the absence of his union activity.
Accordingly I find that O’Brien’s termination form the ap-
prenticeship program on September 27 was illegal and was
in violation of Section 8(a)(3) and (1) of the Act, as alleged.
H. Other Allegations
The record shows that on June 6 Bob Link took a series
of pictures of the members of the organizing committee as
they were engaged in peaceful informational picketing at the
Thornapple Valley jobsite. Link testified that he told them he
was taking pictures to document their location and what was
on their signs. This explanation and the fact that these em-
ployees already had been publicly identified as union orga-
nizers does not refute the inherently chilling effect and tend-
ency to intimidate that such picture taking conveys, espe-
cially in an instance when it was done by a supervisor and
the son of the owner. There is no evidence that the Respond-
ent could reasonably anticipate misconduct and I find that its
own conduct interferes with the employees’ rights to engage
in union activity see Casa San Miguel, 320 NLRB 534, 538
(1995), citing F. W. Woolworth Co., 310 NLRB 1197
(1993).
On June 27, Houseman (a sheet metal worker) was work-
ing at the Portage Northern jobsite, and, as he generally did,
was wearing his helmet backwards. Plumbing Foreman Den-
nis who was the overall foreman on the job, testified that he
approached Houseman about 10 a.m. and told him to turn his
hardhat around. Houseman told him to mind his own fucking
business. Mike Dennis ‘‘assumed’’ that Houseman felt as
plumbing foreman he should not be the one giving the sheet
metal workers orders but he considered Houseman to be in-
subordinate and he called owner Mahoney (who told Dennis
to send him off the job and to report to Dan Zimmerman the
next day). Dennis wrote up a report and returned about 2:30
p.m. and sent Houseman home for the rest of the day. On
the same day Dennis saw employee Craig Miller with no
hardhat. Dennis considered it a first offense and did not write
up a warning or a safety incident report but did note the inci-
dent in the daily log.
Houseman recalled that the conversation was minimal and
that Dennis told him ‘‘you ought to him your hat around’’
and he replied, ‘‘[Y]ou ought to mind your own business.’’
Here, there is no indication that the employee in the other
incident that day reacted to the jobsite foreman with an in-
subordinate type comment. Accordingly, no disparate treat-
ment is shown and I am persuade that Houseman would have
been sent home for this insubordinate conduct even in the
absence of the union activity and I find that this allegation
has not been proven and that it should be dismissed.
After the strikers presented Respondent with a written un-
conditional offer to return to work on July 28, plumber ap-
prentice Yearry was not recalled to work until nearly a
month later, on August 21 (when he replaced Lytle). The
evidence on the record also indicates that there was pipe in-
sulating work that Respondent used temporary, ‘‘contract’’
employees to perform. The Respondent explained that it
often ‘‘contracted with’’ an insulation company to perform
this type of work, especially for insulating special tanks or
boilers and Mahoney) asserted that Yearry was not qualified
to do the work. Timecards were introduced for four tem-
porary employees who did insulation work at the post office
job in August but the Respondent asserts these were to keep
track of the hours on the job and that they would not hire
temporary help on a prevailing wage job. Bruce Link also
admitted that plumbers regularly performed insulation work,
however, Yearry did not testify that he had performed such
work. Under the circumstances I find the evidence to be too
inconclusive to show a violation of the Act in this respect
and, accordingly, this allegation also will be dismissed.
Shortly after 7 a.m. on August 21, Stone and Fogoros
walked to the boiler room building (where construction sup-
plies were stored), on the Thornapple Manor jobsite. Em-
ployee Tom Sulka was kneeling while he was working at the
edge of the doorway leading into the boiler room. A half-
empty plastic, Pepsi bottle was in the entrance, 2 to 4 feet
from Sulka and as Stone stepped over the bottle, he gave it
a backwards kick with the heel of his shoe and the plastic
bottle went back into an empty parking lot. At the time, nei-
ther Fogoros or Stone said anything to Sulka and he did not
say anything to them, however, Robert Link and foreman
were Ware were standing about 40 feet away and saw Stone
kick the bottle. Link and Ware immediately rushed over and
Link told Stone that they had seen him kick the pop bottle.
Initially Stone replied, ‘‘What bottle?’’ Stone testified that he
initially didn’t know what Link was talking about because he
thought it was just trash so he just kicked it out the way as
he often did. After Link persisted Stone said it was ‘‘acci-
dental (as stated in Link’s incident report) he must not have
seen it.’’ Link believed what he had observed clearly was in-
tentional and could not have been accidental and imme-
diately told Stone to pack his tools and leave the job. He
also wrote in his report that Stone became argumentative but
finally left. At this time Fogoros said he was ill and that he
would not stay and be accused of doing something he did
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121ZIMMERMAN PLUMBING CO.
not do and that he was tired of all the ‘‘Mickey Mouse
bullshit.’’
On August 23, Dan Zimmerman sent Steve Stone a letter
informing him that he had been terminated for intentional
misconduct against Sulka as well as for lying about it when
confronted with his actions.
Here, the Respondent shows legitimate reasons that could
justify Stone’s termination. However, in the face of the
Transportation Management Corp. decision, supra, and the
General Counsel’s motivation showing as discussed above
(Stone was the subject of unlawful interrogation, orders to
remove union stickers and attendance warnings), the Re-
spondent has the further burden of persuading by a prepon-
derance of the evidence that the same action would have
been taken in the absence of the employees’ protected activ-
ity.
Sulka did not see what had happened and did not testify.
The Respondent, however, learned that at the start of the day
Stone had yelled at Sulka to put his safety glasses on (en-
forcement of rules against the union supporters was a con-
cern and Stone also was aware that Sulka was a witness
whose report contributed to Houseman’s discipline), and it
seizes upon this information to contend that Stone attempted
to intimidate Sulka and to ‘‘goad’’ Sulka into a ‘‘fight’’
about the safety glasses and to ‘‘initiate a physical confronta-
tion’’ by kicking the bottle.
It asserts that Zimmerman was aware of both of these in-
stances when the termination decision was made, however
Dan Zimmerman did not testify and their is no indication in
the termination letter that this was a consideration nor is
there any showing how he might have became aware of this
(the safety glasses incident was not mentioned in Link’s re-
port). Otherwise, however, the record shows that Mahoney
was the member of management who normally evaluates em-
ployees and deals with disciplinary matters but that he was
not involved in the Stone decision (although he was at work
that week), because, as Mahoney testified, Dan Zimmerman
wanted to, and requested to handle it.
According to Mahoney, firing someone was a rare occur-
rence that did not happen very often, however, Zimmerman
apparently took this rare action solely on the basis of Robert
Link’s written incident report. There were several other wit-
nesses, including Forgoros and Foreman Ware, yet no inves-
tigation was made of the circumstances and Stone was never
interviewed or given an opportunity to explain his side of the
story or to provide any information that might have mitigated
the extent of his discipline. On brief and on the record, the
Respondent provides an exaggerated picture of the serious-
ness of the incident, moreover, the record shows a rush to
judgment and an attempt to add derogatory factors to the
equation, factor not shown to be relied upon in its termi-
nation decision. These other factors lend no support to the
legitimacy of its asserted reason and, despite an initial sur-
face appearance of justification for the Respondent’s actions,
I find that occurring as it did in connection with a series of
other antiunion and illegal actions against union supporters,
the imposition of the most sever penalty, termination, with
no investigation appears to be more pretextual than persua-
sive.
Under these circumstance, I am not persuaded that the in-
cident was so serious that it could not have been investigated
and handled in a normal way and I am not persuaded that
the Respondent would have summarily terminated Stone in
the absence of the protected union activities. Accordingly, I
find that the General Counsel has carried his overall burden
and shown that the Respondent’s action in this regard was
because of the union activities and was in violation of Sec-
tion 8(a)(1) and (3) of the Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an Employer engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
2. The Unions are labor organizations within the meaning
of Section 2(5) of the Act.
3. At all times pertinent Harold Bartholomew, Mike Den-
nis, Robert Link, Wayne Ware, and Roger Wedig were su-
pervisors and or agents within the meaning of Section 2(11)
and (13) of the Act such that their conduct in relation to the
Respondent’s employees is attributable to the Respondent.
4. By creating the impression that employees union activi-
ties are under surveillance; instructing employees to consult
with management before joining a union; implying that join-
ing the union would result in unfavorable treatment com-
pared to the benefits available to those who stay with the
Company; threatening employees with closure of the busi-
ness, denying employees the privilege of bringing their tools
home at night; limiting employees normal access to the on-
site job trailer; and by photographing its employees’ union
activities on June 6, 1995, the Respondent has interfered
with, restrained, and coerced employees in the exercise of
their rights guaranteed them by Section 7 of the Act, and
thereby has engaged in unfair labor practices in violation of
Section 8(a)(1) of the Act.
5. By transferring and isolating together the all know
union organizers (except one) because of their union activity,
Respondent has violated Section 8(a)(3) and (1) of the Act.
6. By maintaining and enforcing a rule prohibiting em-
ployees from placing any union stickers on company hard-
hats or from wearing their own hardhats, by prohibiting so-
licitation of any kind, and by discriminatorily issuing warn-
ings or verbal reprimands to Jamie Fogoros, Joe Houseman,
Andy Lytle, and Jeff Yearry on June 16 and 20, 1995,
Fogoros on August 11, 1995, Lytle on August 18 by sending
home and suspending Tim O’Brien on August 8, 1995, and
Lytle on August 18, 1995, and by discharging Lytle on Au-
gust 22, 1995, because of their display of union stickers on
their hardhats and other union activities, Respondent has vio-
lated Section 8(a)(3) and (1) of the Act.
7. By issuing disciplinary warnings for violation of its at-
tendance policy to Jamie Fogoros, Andy Lytle, Tim O’Brien,
Todd O’Brien, Steve Stone, and Jeff Yearry on June 7, 1995,
and Joe Houseman on June 13, 1995; Todd O’Brien on June
26, 1995; Fogoros, Tim O’Brien and Stone on August 21,
1995; and by discharging Todd O’Brien on August 23, 1995,
because of their union activity, Respondent has violated Sec-
tion 8(a)(3) and (1) of the Act.
8. By discharging Steve Stone on August 23, 1995, be-
cause of his union activities, Respondent has violated Section
8(a)(3) and (1) of the Act.
9. By removing Tim O’Brien from the Respondent’s ap-
prenticeship program on September 27, 1995, because of his
union activity, Respondent has violated Section 8(a)(3) and
(1) of the Act.
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122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
10. Except as found herein, Respondent otherwise is not
shown to have engaged in conduct violative of the Act as al-
leged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
With respect to the necessary action, it is recommended
that Respondent be ordered to reinstate employee Tim
O’Brien to the apprenticeship program (with no loss of exist-
ing credits), to rescind the suspensions and attendance related
disciplinary warnings given to Jamie Fogoros, Joe House-
man, Andy Lytle, Tim O’Brien, Todd O’Brien, Steve Stone,
and Jeff Yearry and to reinstate Andy Lytle, Todd O’Brien,
and Steve Stone to their former jobs or substantially equiva-
lent positions, dismissing, if necessary, any temporary em-
ployees or employees hired subsequently, without prejudice
to their seniority or other rights and privileges previously en-
joyed, and make them whole for any loss of earnings they
may have suffered because of the discrimination practiced
against them by payment to them of a sum of money equal
to that which they normally would have earned during their
suspension or from the date of the discrimination to the date
or reinstatement in accordance with the method set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).4
The Respondent also shall be ordered to remove from its
files any reference to the warnings, suspensions, and dis-
charges and notify all these employees in writing that this
has been done and that evidence of the unlawful discharges
and suspensions not be used as basis for future personnel ac-
tion against them. Otherwise, it is not considered necessary
that a broad Order be issued.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Zimmerman Plumbing and Heating Co.,
Inc., Kalamazoo, Michigan, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed them by Section 7
of the Act by creating the impression that employees’ union
activities are under surveillance; instructing employees to
consult with management before joining a union; implying
that joining the union would result in unfavorable treatment
compared to the benefits available to those who stay with the
company; threatening employees with closure of the busi-
ness, denying employees the privilege of bringing their tools
home at night; limiting employees normal access to the on-
site job trailer; and photographing its employees’ union ac-
tivities.
(b) Discriminatorily changing the terms and working con-
ditions of employees by transferring and isolating together
known union organizers.
(c) Interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of
the Act, by promulgating an overly broad no-solicitation, rule
a more strict absenteeism policy and by maintaining and in-
ferring a rule prohibiting employees from placing any union
stickers on its hardhats or from wearing their own hardhats
because of employees engaging in union or other protected
concerted activity.
(d) Discriminatorily issuing warnings, suspending, or dis-
charging employees for alleged violations of a more strictly
enforced attendance policy and their display of union stickers
on their hardhats because of their union activities.
(e) Discriminatorily removing an employee from the ap-
prenticeship program and otherwise terminating any em-
ployee because of their engaging in union or other protected
concerted activities.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Andy Lytle, Todd O’Brien, and Steve Stone im-
mediate and full reinstatement and make them whole for all
losses they incurred as a result of the discrimination against
them, in the manner specified in the remedy section.
(b) Within 14 days from the date of this Order rescind the
no-solicitation, no-hardhat sticker rule and rescind the attend-
ance related disciplinary warning letters to Joe Houseman,
Todd O’Brien, Steve Stone, Tim O’Brien, Jeff Yearry, Jamie
Fogoros, and Andy Lytle, issued in June and August 1995
and remove from its records any reference to them and notify
these employees, in writing, that this has been done and that
the warning letters will not be used as basis for any future
personnel action against them.
(c) Within 14 days from the date of this Order reinstate
Tim O’Brien to the Respondent’s apprenticeship program
with no loss of credit and remove any reference to his Sep-
tember 1995 removal from that program from its files and
notify him, in writing, that this has been done.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful terminations, sus-
pensions, and warnings and, within 3 days thereafter, notify
the employees in writing that this has been done and that
evidence of these unlawful terminations, suspensions, and
warnings will not be used as a basis for future personnel ac-
tion against them.
(e) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying,
all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(f) Within 14 days service by the Region, post at its Kala-
mazoo facilities and all current jobsites copies of the attached
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123ZIMMERMAN PLUMBING CO.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
notice marked ‘‘Appendix.’’6 Copies of the notice, on forms
provided by the Regional Director for Region 7, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent and maintained for 60 consecu-
tive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other mate-
rial.
(g) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps the Respondent has taken to comply.
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