Katy Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 14, 1988

288 N.L.R.B. 456 (N.L.R.B. 1988)

456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Oakes Machine Corporation, a Subsidiary of Katy
Industries, Inc. and Kenneth Kress, James
Zuber, and Lewis Russo. Case 29-CA-7287
April 14, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
BABSON AND CRACRAFT
On December 18, 1981, Administrative Law
Judge Howard Edelman issued the attached deci-,
sion. The Respondent filed exceptions and a sup-
porting brief, and the Charging Parties filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order, to modify the remedy, 1 and to
adopt the recommended Order as modified.
The judge found, and we agree, that the Re-
spondent violated Section 8(a)(1) of the Act by dis-
charging employee Russo for sending an unsigned
letter asking the Respondent's parent company to
remove Peter Oakes as the Respondent's president.
The evidence shows that the letter, which Russo
mailed, reflected discussions among the employees
about what they regarded as Oakes' mismanage-
ment of the Company—a mismanagement they be-
lieved had a detrimental effect on their working
conditions.2
The judge inferred from the overall wording of
the letter and the consistent use of the pronoun
"we" that the Respondent reasonably believed
from reading the letter that it represented the
thinking of more than one employee. We agree.
Applying the standards of Meyers Industries,3
which issued after the judge's decision in this case,
we find that preparation of this letter is clearly
concerted activity within the meaning of Section 7.
Not only does the letter consistently use the term
"we," it also specifies complaints that concern
more than one employee, e.g., Oakes' "attitude to-
In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
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. Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U.S C. § 6621), shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977)
2 There is no evidence that the Respondent knew the identity of the
employees who collaborated with Russo in the preparation of the letter.
3 Meyers I, 268 NLRB 493 (1984), remanded sub nom. Frill v. NLRB,
755 F.2d 941 (D.C. Cir. 1985), Meyers II, 281 NLRB 882 (1986), enfd.
sub nom. Frill a NLRB, 835 F.2d 1481 (D.0 Cir. 1987).
wards employees" and his use of the Respondent's
employees (including a welder and members of the
engineering staff) to work on his own ,personal
projects, as distinct from the Respondent's business.
The judge's finding that a reasonable person read-
ing the letter would conclude that it was the prod-
uct of more than one person is given additional
support by the testimony of Ed Egan, the Re-
spondent's former vice president. Egan testified
that when Oakes learned of the letter, he stated
that he wanted to learn who sent it so he could
"get them out of the building." Accordingly, we
find that Russo's mailing of the letter was "en-
gaged in with or on authority of other employees,
and not solely by or on behalf of the employee
himself' 4 and that there is ample basis for conclud-
ing that the Respondent had reason to know that
more than a single employee was involved in this
protest, We therefore affirm the judge's finding
that Russo was engaged in concerted activity in
sending the letter and that the Respondent's dis-
charge of him violated Section 8(a)(1) of the Act.5
The judge further found that the discharges of
employee Zuber and Supervisor Kress also violated
Section 8(a)(1). As the judge found, the credited
evidence shows that Zuber expressed concern to
Vice President Egan about having to work in close
proximity to a radioactive source at the time of his
assignment to the densitometer project. 6 Thereaf-
ter, on February 28, 1979, Zuber became upset
after computing an equation in some radiation
safety literature that revealed that he had been ex-
posed to unsafe levels of radioactivity. He showed
his calculations to Supervisor Kress, who verified
their accuracy but pointed out that the equation re-
lated to an unshielded source produced by a differ-
ent manufacturer, which was unlike the one Zuber
had been using. Kress suggested that more informa-
tion was needed before any final conclusion could
be reached about exposure to radioactivity. After
speaking with Kress, Zuber told another employee
that the source was unsafe and suggested that he
cease working near it. Zuber then telephoned a
county health official, who agreed to survey the
plant premises that same day. When Kress returned
from lunch, Zuber advised him of the planned
survey and Kress asked if Zuber had notified Egan,
who was in charge of the plant that day. Zuber
and Kress then informed Egan, who became angry
4 Meyers I at 497.
5 For the same reason, we also adopt the 8(a)(1) violations found by
the judge based on management's warning to Russo and threat of black-
listing him, and its promise of benefits and implied threats of reprisals to
induce other employees not to engage in protected concerted activities.
6 Testing of densitometers apparently necessitated moving the radioac-
tive source from one unit to another.
288 NLRB No. 52
OAKES MACHINE CORP. 457
and accused Zuber of opening up a can of worms.
Later in the afternoon Egan was advised by a
health official that removal of the radioactive
source from its source holder violated the regula-
tions concerning its handling and, therefore, the in-
cident would have to be "logged," Egan thereupon
summoned Zuber and Kress into his office and
"read the Riot Act" to Zuber for calling in outsid-
ers before coming to him or President Oakes. On
March 2 Oakes asked Egan and Kress how they
thought Zuber should be disciplined. Egan re-
sponded that he should be fired, but Kress protest-
ed, saying Zuber had the right to contact the
health department and that he would testify for
Zuber if Zuber were fired. Oakes replied that the
matter was out of his hands because he had already
informed the parent company Of Zuber's actions.
On March 9 Zuber and Kress were discharged.
The judge concluded, based on Alleluia Cushion
Co., 7 that Zuber's complaint about unsafe working
conditions to an appropriate agency is implicitly
concerted and therefore protected activity and,
therefore, his discharge violated Section 8(a)(1).
We disagree.
The Board in Meyers I, supra, overruled Alleluia
Cushion and stated that it will no longer regard an
individual's action as "concerted" merely because
the action ought to be of group concern. 8 Under
Meyers I, as reaffirmed in Meyers II, we will not
deem Zuber's act of complaining to a state agency
about allegedly unsafe working conditions to come
within Seetion 7 of the Act because it was not
done in concert with other employees. Consequent-
ly, we find that Z,uber's discharge did not violate
Section 8(a)(1).8
We reach a different result concerning Kress. In
agreement with the judge, we find that the Re-
spondent violated Section 8(a)(1) by discharging
him. From the credited testimony, the judge con-
cluded that the Respondent had "concurrent" rea-
sons for discharging Kress: First, his failure to ex-
ercise sufficient control over the employees under
his supervision, as demonstrated by Zuber's con-
tacting the state regulatory agency and Russo's
sending the letter to the Respondent's parent com-
pany; second, his statement of intention to testify
7 221 NLRB 999 (1975). The judge's decision issued before Meyers I.
8 Meyers I, supra at 496.
9 We accordingly do not adopt the judge's 8(aX1) findings based on
the Respondent's threats of reprisal directed at Zuber. Compare Unico
Replacement Parts, 281 NLRB 309 (1986), in which the Board found un-
lawful a threat that could reasonably have been construed as indicating
that OSHA complamts, whether made by one or by several employees
together, would result in plant closure.
We note also that there is no basis for findmg that Zuber's safety com-
plaint to the state agency was a continuation of the concerted employee
action embodied in Russo's letter, which concerned general mismanage-
ment by Peter Oakes. Compare Every Woman's Place, 282 NLRB 413
(1986), enfd. mem. 833 F.2d 1012 (6th Gr. 1987).
Zuber's behalf "in court" if necessary. The
judge correctly reasoned regarding the latter
ground 'that Kress' "broad statement. . . 'would in-
clude, by reasonable implication, proceedings
within the ambit of the National Labor Relations
Act." In a case that issued subsequent to the
judge's decision, but that preserved to a relevant
extent a portion of existing case law, Parker-Robb
Chevrolet, 262 NLRB 402, 404 (1982), the Board
enumerated special circumstances in which the dis-
charge of a supervisor may violate the Act, includ-
ing giving testimony adverse to an employer's in-
terest at a National Labor Relations Board pro-
ceeding, and explains that there is a need "to
ensure that even statutorily excluded individuals
may not be . . . discouraged from participating in
Board processes." 1 ° Subsequent cases further sup-
port the finding of a violation in the circumstances
presented here. Orkin Exterminating Co., 270
NLRB 404 (1984) (unfair labor practice to con-
structively discharge a supervisor because of his
expressed intention to testify before the National
Labor Relations Board on behalf of discharged em-
ployee); see Glover Bottled Gas Corp., 275 NLRB
658 fn. 7, 673-674 (1985) (unfair labor practice to
discharge a supervisor because of her anticipated
testimony before the National Labor Relations
Board on behalf of discharged employees), enfd.
mem. 801 F.2d 391 (2d Cir. 1986)." See also
i ° In Parker-Robb, the Board rejected for the most part earlier deci-
sions holding unlawful the firing of supervisors that were found to be an
"integral part" or "pattern of conduct" aimed at thwarting rank-and-file
employees' union or concerted activities. Consequently, Downslope Indus-
tries, 246 NLRB 948 (1979), and Buddies Super Markets, 223 NLit B 950
(1976), on which the judge relied, were overruled to the extent inconsist-
ent with Parker-Robb, 262 NLRB at 404 fn. 20.
It might at first glance seem anomalous to find that a supervisOr is pro-
tected with respect to retaliation against giving testimony in a Board pro-
ceeding while finding, at the same time, that the employee for whom the
supervisor would testify does not have a viable claim under the Act. But
protection against retaliation for participating in Board proceedings obvi-
ously should not turn on a determination of the outcome of such a pro-
ceeding on the merits. As noted by the court in NLRB v. Electro Motive
Mfg. Co., 389 F.2d 61, 62 (4th dr. 1968), the effect of the supervisor's
discharge "is to tend to dry up legitimate sources of information to 1Board
agents, to impair the functioning of the machinery provided for the vindi-
cation of the employees' rights and, probably, to restrain employees in
the exercise of their protected rights."
I, The Board's holding in Pontiac Osteopathic Hospital, 284 NLRB 442
(1987), is not to the contrary. There the Board found that an employer
did not unlawfully discharge a supervisor for offering to testify on behalf
of an employee in an informal grievance proceeding reserved for non-
union personnel The Board specifically noted that the grievance proce-
dures "were not proceedings implemented pursuant to a collective-bar-
gaining agreement, to which we would be willing to defer. Consequently,
they are not proceedings which enjoy recognition under the Act" Id. at
fn. 7. Member Babson and Member Cracraft did not participate in the
decision in Pontiac Osteopathic. Although they agree with the finding that
the discharge of Supervisor Kress violated Sec. 8(aX1) and that the facts
of the instant case are distinguishable from those present in Pontiac Osteo-
pathic, they find it unnecessary to pass on the Board's finding in Pontiac
Osteopathic that the discharge of Supervisor Bach did not violate the Act.
458 DECISIONS OF THE _NATIONAL LABOR RELATIONS BOARD
NLRB v. Electro Motive Mfg. Co., supra, enfg. 158
NLRB 534 (1966) (unfair labor practice to dis-
charge a supervisor who voluntarily cooperated in
Board investigation).
It is true that a demonstrated inability to proper-
ly supervise the employees under his responsibility
could, standing alone, justify Kress' discharge.
However, given the fact that the Respondent's
action was motivated in part by a reason that we
find unlawful under the foregoing exception to the
Parker-Robb Chevrolet rule, it was incumbent on
the Respondent to establish by a preponderance of
the evidence that it would have fired Kress even if
he had not threatened to testify on Zuber's behalf
"in court." Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981). We think that
the Respondent failed to meet that burden. As re-
flected in the judge's opinion, both lawful and un-
lawful grounds motivated the Respondent. Al-
though the judge found that the lawful reason was
"primary," still, in light of Wright Line, the Re-
spondent could not prevail without an additional
showing that that reason alone would have
prompted Kress' discharge.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge's Conclu-
sions of Law 2(c), (d), and (e).
"(c) Threatening employee Louis Russo with
blacklisting in outside employment because he en-
gaged in concerted activity for the purpose of
mutual aid or protection.
"(d) Discharging its employee Louis Russo be-
cause he engaged in concerted activity for the pur-
pose of mutual aid or protection.
"(e) Discharging its supervisor Kenneth Kress
because he stated his intention to testify in any
legal proceeding arising from the Respondent's
commission of unfair labor practices."
ORDER
The National Labor Relations Board orders that
the Respondent, Oakes Machine Corporation, a
subsidiary of Katy Industries, Inc., Islip, New
York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Offering, promising, or granting to its em-
ployees wage increases or other benefits or im-
provements in their working conditions and terms
of employment to induce them to refrain from en-
gaging in ,concerted activity for the purpose of
mutual aid or protection.
(b) Warning or directing its employees to refrain
from engaging in concerted activity for the pur-
pose of mutual aid or protection.
(c) Threatening its employees with blacklisting in
outside employment and other reprisals because
they engage in concerted activity for the purpose
of mutual aid or protection.
(d) Discharging or otherwise discriminating
against employees because they engage in concert-
ed activity for the purpose of mutual aid or protec-
tion.
(e) Discharging or otherwise discriminating
against supervisory employees within the meaning
of Section 2(11) of the Act because they intend to
testify in any legal proceeding arising from the Re-
spondent's commission of unfair labor practices.
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Louis Russo and Kenneth Kress imme-
diate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority
or any other rights or privileges previously en-
joyed, and make them whole for any loss of earn-
ings and other benefits suffered as a result of the
discrimination against them, in the manner set forth
in the remedy section of the decision.
(b) Remove from its files any reference to the
discharges of Louis Russo and Kennetli+' Kress on
March 9, 1979, advise them in writing -Mat this has
been done and that no evidence of their unlawful
discharges will be used as a basis for future person-
nel action against them in any way.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its place of business in the town of
Islip, county of Suffolk, State of New York, copies
of the attached notice marked "Appendix.""
Copies of the notice, on forms provided by the Re-
gional Director for Region 29, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
12 If this Order is enforced by a judgment of a United States court of
appeals, the words m the nonce reading "Posted by Order of the Nation-
al 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."
OAKE,.S MACHINE CORP. 459
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT offer, promise, or grant to our
employees wage increases or other benefits or im-
provements in their working conditions and terms
of employment to induce them to refrain from en-
gaging in concerted activity for the purpose of
mutual aid or protection.
WE WILL NOT warn or direct our employees to
refrain from engaging in concerted activity for the
purpose of mutual aid or protection.
WE WILL NOT threaten our employees with
blacklisting in outside employment and other re-
prisals because they engage in concerted activity
for the purpose of mutual aid or protection.
WE WILL NOT discharge or otherwise discrimi-
nate against employees because they engage in con-
certed activity for the purpose of mutual aid or
protection.
WE WILL NOT discharge or otherwise discrimi-
nate against supervisory employees within the
meaning of Section 2(11) of the Act because they
intend to testify in any legal proceeding arising
from our commission of unfair labor practices.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Louis Russo and Kenneth Kress
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or any other rights or privileges previous-
ly enjoyed and WE WILL make them whole for any
loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus
interest.
WE WILL remove from our files any reference to
the discharges of Louis Russo and Kenneth Kress
and notify them in writing that this has been done
and that evidence of their unlawful discharges will
not be used as a basis for future personnel action
against them in any way.
OAKES MACHINE CORPORATION, A
SUBSIDIARY OF KATY INDUSTRIES,
INC.
Norman Jenkins, Esq., for the General Counsel.
Robert V. Hogan, Esq., (Quinn, Jacobs & Barry), for the
Respondent.
Amy Gladstein„ Esq. (Gladstein, Reif & Siegel), for the
4 Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This
case was tried before me on November 17 through 21
and November 24, 1980, in Brooklyn, New York. Com-
plaint in this case issued on October 29, 1979. The com-
plaint was based on a charge filed by Kenneth Kress,
James Zuber, and Lewis Russo (Kress, Zuber, and
Russo) on June 26, 1979.
The complaint alleges, inter alia, that Oakes Machine
Corporation, a subsidiary of Katy Industries, Inc. (Re-
spondent), violated Section 8(a)(1) of the Act by dis-
charging Kress, Zuber and Russo for engaging in pro-
tected concerted activities, offered, promised, and grant-
ed its employees wage increases in order to induce them
to refrain from engaging in protected concerted activi-
ties, warned and directed its employees to refrain from
engaging in certain protected concerted activities, and
threatened its employees with blacklisting in outside em-
ployment if they engaged in protected concerted activi-
ties.
Briefs were filed by counsel for the General Counsel,
counsel for the Respondent, and counsel for the Charg-
ing Party. On consideration of the entire record, the
briefs, and my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
A. Jurisdiction
Respondent is a New York corporation located in
Islip, New York, where it is engaged in the manufacture,
sale, and distribution of machinery for the food, chemi-
cal, and foam rubber industries. In the course of this op-
eration at its Islip, New York facility, Respondent annu-
ally purchases, and causes to be delivered to its Islip,
New York facility, goods and materials valued in excess
of $50,000, which goods and materials are purchased in
interstate commerce directly from firms located outside
the State of New York.
Respondent admits and I find that Respondent is and
has been at all times material an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. Company Organization
Respondent is a wholly owned subsidiary of Katy In-
dustries, Inc. Peter Oakes is and has been president of
Respondent since 1976. Respondent consists of a single
facility located on one square block comprising three
separate buildings.
As of March 1979, Respondent employed a total of 26
to 27 employees. This total complement of employees
was employed by Respondent in three separate classifica-
tions: the sales department, the engineering department,
and the production department. Edward Egan, Respond-
ent's vice president and admittedly a supervisor within
the meaning of Section 2(11) of the Act, was in charge
of the sales department. Additionally, two sales engineers
were employed by the sales department.
Kenneth Kress, chief engineer and admittedly a super-
visor within the meaning of Section 2(11) of the Act,
was in charge of the engineering department. Also em-
ployed in the engineering department, and reporting di-
rectly to Kress, were electronic technician James Zuber,
senior draftsman Lewis Russo, and junior draftsmen
John Halinski, Gary Miglionico, and Lenny Diaz. The
above-named individuals were admittedly employees as
defined by Section 2(3) of the Act. John Stalzer, a super-
visor within the meaning of Section 2(11) of the Act,
was in charge of the production department. Reporting
to Stalzer were approximately 17 production employees.
C. The Letter to Katy Industries
Lewis Russo was hired by Respondent in November
1973 as a draftsman. Respondent had from at least 1973,
and continuing to date, a wage policy of granting annual
pay raises around January of each year, the size of the
raise depending on the profits of Respondent the preced-
ing year. As of 1978, Russo had received such raises
each January except 1977. In 1977, no employees re-
ceived the customary annual raise because Respondent's
operations were not profitable in 1976. In 1978, Russo re-
ceived, aside from the annual companywide raised in
January, four separate merit raises throughout 1978, the
last of which he received on November 14, 1978. At this
time Russo was promoted to the position of senior me-
chanical engineer.
Additionally, Respondent pays to employees annual
bonuses in accordance with a profit-sharing contract.
The amount of such bonus is also directly related to the
profits of Respondent the previous year.
One day during February or March 1978, a number of
employees including Russo, Helen Tedesco, Bob La-
Chance, John Foglio, and Walter Johnson were com-
plaining among themselves about the same bonus granted
that year. The employees expressed their opinion that
Respondent's profits were low in part because they spent
a great deal of working time on personal projects for
Peter Oakes. Such projects, discussed by the above-
named employees, included repairing Peter Oakes' air-
plane, radio, snowplow, bicycles, law furniture, and com-
puters. Additionally, these employees were generally dis-
satisfied by the way Peter Oakes managed Respondent's
operation. In their regard, the employees contended that
Oakes lacked the maturity and the ability to handle the
responsibilities of the position of president and that his
attitude towards his employees and Respondent's cus-
tomers was detrimental to the morale of the employees
and the business of Respondent.
A letter expressing such employee discontent was
composed by Zuber. Tedesco typed the letter on Re-
spondent's typewriter, and Lewis Russo took possesion
of the letter for employees to sign. For one reason or an-
other, not set forth on the record, the letter was never
signed by the employees.
Sometime during the summer of 1978 Russo, who had
maintained possession of the unsigned letter, mailed it to
Katy Industries, Inc. The letter set forth as follows:
Dear Sir:
Since the resignation of Mr. E. Thomas Oakes,
the morale and efficiency of the Oakes Machine
Corporation has been on a rapid decline due to the
attitude and inefficiency of its appointed President.
In the interest of the survival of the Oakes Machine
Corporation, which we believe has a great poten-
tial, we submit the following:
Mr. W. Peter Oakes is not prepared to make in-
telligent decisions in behalf of the Company. He
carries only the surname of his father, Oakes, but
does not exibit [sic] his business sense. Peter Oakes
lacks the maturity to accept the responsibility of
this position. His attitudes toward employees and
customers are detrimental to the morale and image
of the Oakes Machine Corp. Many customers refuse
to deal with him on any level. His unwillingness
and inability to exercise his authority has caused
many delays.
Since his' appointment, he has used the Company
and its resources solely for his personal gain. He
had used Company personnel and stock to help him
rebuild his airplane that he is restoring. Many hours
have been logged by the welder in the repair of
many parts of his airplane and also his lawnmower
and lawn furniture. This is a matter of record, not
rumor. Many parts of this airplane can be seen scat-
tered all over the shop.
Since January, he had concentrated most of his
time and part of the Engineering staff's time build-
ing a personal computer. Upon his return from a
business trip to Hawaii and California, and not the
problems of the Company.
In his capacity as President, we were unaware
that it was legal to use his own jeep on Company
time to plow out the parking lot and charge the
Company for it (snow store 2-6-78). We believe
this to be only a small part of the many ways Peter
Oakes has shown us he is unfit to act as President of
this Company.
We ask that you give his appointment re-evalua-
tion and make the necessary change before we are
all forced to resign. We ask that you look into this
matter without alerting Peter Oakes as to the exist-
ence of this letter. We feel that its existence is confi-
dential and presented to you only in the interest of
protecting our interest in this Company as well as
your own. We feel this Company can do very well
OAKES MACHINE CORP. 461
in the future with a change based on this letter.
Thank you.
Thereafter, on August 23, 1978, Wallace E. Carroll,
board chairman of Katy Industries, Inc., sent Oakes a
copy of the Zuber letter with a covering letter attached
that set forth as follows:
Dear Peter:
Where I sit I get at least one "fan" mail letter a
week. This week is yours and you can take a bow.
It doesn't bother us, these things being old hat to
us, so we'll leave it to you to straighten out.
Immediately on receipt of the Zuber letter, Oakes called
in Ed Egan, vice president of sales, and asked him if he
knew who wrote the letter. According to Egan's testi-
mony, Oakes was visibly angry over the contents of the
letter. Egan testified that Oakes "called the letter gar-
bage." Oakes then told Egan that if he found out who
wrote the letter he would fire such individual.
Shortly after receipt of the letter, Oakes invited Russo
to his home after work. At this time, Oakes valued Russo
as a trusted employee. When they reached Oakes' home,
Oakes showed Russo the letter and asked him if he knew
who had sent it. Russo told Oakes he did not know.
Oakes then told Russo that when he found out who
wrote the letter he intended to make an example of him.
Egan testified that sometime during the early part of
December 1978, Oakes informed him during a casual
conversation that he had found out that Russo, the last
employee he would have suspected, had written the
letter to Katy. Oakes testified he found out Russo had
sent the letter when an employee, Walter Johnson, who
had helped draft the letter informed him of this.
d. The Development of the Densitometer
Sometime in 1977, Respondent commenced the devel-
opment of a mechanical device called the densitometer.
The densitometer is used in the baking industry to con-
trol and insure a uniform density of cake mix. The densi-
tometer being developed by Respondent contained a
low-power radioactive source head purchased from an-
other company called Kay Ray. The radioactive source
was a major component in the densitometer. The Kay
Ray radioactive device consisted of a nuclear source,
Cesium, surrounded by a lead shield with a shutter at
one end from which gamma rays generated by the nucle-
ar source were emitted. This source and shield were con-
tained in a protective source holder.
Ed Egan was responsible for ordering the device from
Kay Ray and dealing with the New York State regula-
tory agencies that supervise the handling of nuclear ma-
terial. Kress was in charge of an overall design of the
densitometer, Zuber was assigned the design of the elec-
tronic circuitry, and Russo was assigned to draft the
structural plans for the densitometer.
Zuber initially expressed certain concerns about work-
ing closely with a radioactive device to Vice President
Egan. Egan, however, assured him at the time that the
radioactive source was safe, explaining to Zuber that he
could swallow the source and have it inside for a year
without any danger.
Therafter, Zuber, Kress, and Russo worked on the de-
velopment of the densitometer. Concerning their work, it
was necessary for them, as well as other employees, to
work at close range with the radioactive Kay Ray
source. Additionally, it was necessary from time to time
in the development and production of the densitometer
to move the radioactive source from one densitometer
unit to another.
Sometime during January 1979, Respondent was con-
sidering purchasing a similar radioactive source as the
Kay Ray unit from a different manufacturer, Omhart. On
February 28, Zuber received some literature from
Omhart in connection with their radioactive source head.
Zuber brought the literature home with him that night
and read it over. The literature contained an equation for
the computation of safe radioactive levels. Zuber then
calculated, using the Omhart equation, the radioactive
level to which he had been exposed with the Kay Ray
unit. According to Zuber's calculations, he had been ex-
posed to an unsafe radioactive level.
On the morning of February 28, Zuber spoke to Su-
pervisor Kress in his office. According to Kress, Zuber
was visibly shaken and upset. He showed Kress the
Omhart equation and his calculations and told Kress he
was concerned about his exposure to the unit and that
the Kay Ray source was unsafe. Kress pointed out to
Zuber that the Omhart equation was geared to an un-
shielded source whereas the Kay Ray source was shield-
ed, but that Respondent would have to get more infor-
mation before they could reach a final conclusion about
the safety of the Kay Ray unit.
After leaving Kress' office Zuber went to the shop
area where he spoke with another employee, Bob Webb,
who was working with the Kay Ray source. Zuber told
Webb to stop working near the source. He explained to
Webb that the source might be unsafe and that he should
cease working near it until he could obtain information
regarding the safety of the unit. Zuber then called the
Nuclear Regulatory Commission, which referred him to
the Suffolk County Health Department. Zuber contacted
the Suffolk Company Health Department and spoke to
Seymour Becker, a department official. Zuber asked
Becker to come down to Respondent's facility immedi-
ately to verify the safety of their radioactive source.
Becker told Zuber he was unable to come down for sev-
eral days. Zuber told Becker that he would wait if
Becker would assure him that the people working with
the source would be safe. Becker agreed to visit Re-
spondent's facility at 3:30 p.m. that day.
Thereafter, Zuber informed Kress of his conversation
with Becker and told him that Becker would be coming
down to the plant this afternoon. Kress suggested that
they report this to Ed Egan. Peter Oakes was not
present in the plant this day. Thereafter, both Zuber and
Kress informed Ed Egan of Zuber's conversation with
Becker and that Becker would visit the plant at 3:30 p.m.
Egan was very upset and angry that Zuber had com-
plained to an outside agency without contacting him
first.
462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At 3:30 p.m. Becker visited the plant and checked the
Kay Ray radioactive source head with a geiger counter.
Becker was unable to determine from his examination
whether Zuber or other employees had received danger-
ous exposure from the Kay Ray source'and told Kress,
Zuber, and Egan, who were present during his examina-
tion, that he would refer the matter to the New York
State Nuclear Regulatory Agency. Becker then tele-
phoned the New York State Nuclear Regulatory Agency
and spoke to a Mr. Casik, an agency official. Becker re-
ported that his inspection had established that the radio-
active source head had been moved from one unit to an-
other. Egan, who was on an extension phone, was in-
formed by Casik that the movement of the radioactive
source from one unit to another constituted a violation of
the nuclear regulations and the "incident" would have to
be logged.
Immediately following Becker's visit, Egan called
Kress and Zuber into his office. Egan was admittedly
very angry and informed Zuber that he "opened up a
can of worms." Egan testified that he "read the Riot Act
to Zuber." He told Zuber that he should have informed
him or Oakes about his fears of radioactive exposure
before calling in a state agency.
About 5 p.m. that day, Peter Oakes returned to Re-
spondent's facility. At this time Egan informed Oakes of
Zuber's telephone calls to various state regulatory agen-
cies, Becker's visit to the plant, and the determination by
the New York State Nuclear Regulatory Agency that
Respondent had violated nuclear regulations by moving
the Kay Ray source and that the "incident," would have
to be logged. Oakes made no comment at this time.
On March 2, 1979, Oakes met with Egan and Kress in
Oakes' office. They engaged in a discussion about what
to do about the radioactive Kay Ray source and how to
handle the "incident," which had been logged by the
New York State Nuclear Regulatory Agency. It was
agreed after some discussion to return the radioactive
source to Kay Ray. Kress and Egan testified that during
this discussion Oakes stated that Zuber was stupid for
contacting the health department before contacting
Kress. He then stated that he was going to fire Zuber.
Kress replied that Zuber was concerned about his health
and had a legal right to contact the department of health
and that if Oakes fired him, Kress would testify on his
behalf, in court if necessary. Oakes replied that he had
already reported the incident to Katy and at this point it
was out of his hands.
Oakes testified that during the discussion he asked,
"[W]hat can we do to discipline Zuber?" According to
Oakes, Egan replied, "If I were in your shoes . . . I
would have fired the bastard." At that point, Kress re-
plied, "No you can't do that, he is protected. . . he was
complaining about his safety, and he was concerned with
his health."
At no time during the March 2 discussion did Oakes,
Egan, or Kress criticize Zuber's work on the densitome-
ter or any other project.
I credit the testimony of Egan and Kress.'
During the course of this hearing, I found Peter Oakes to be a totally
incredible witness. In this connection, Oakes' testimony concerning the
Following the March 2 conversation among Oakes,
Egan, and Kress, Kress informed Zuber that Oakes had
stated he intended to fire him for contacting the nuclear
regulatory agenices -and the department of health.
Egan credibly testified that on March 8, during a con-
versation with Oakes in his office, Oakes told him that
he had contacted Katy Industries, and that a decision
had been reached to terminate Zuber the following day.
When Egan questioned this decision, Oakes stated that it
was out of his hands at this point. Katy Industries had
told him to fire Zuber.
Later that same day, Oakes met privately and secretly
with Gary Halinski, a draftsman, and told him that there
was going to be "some trouble" the next day and that
reasons for the discharge of Russo, Zuber, and Kress is sharply contra-
dicted by documentary evidence, the testimony of other Respondent offi-
cials, and the testimony of Oakes himself. With respect to the discharge
of Russo, Oakes repeatedly testified during this proceeding that the letter
Russo had submitted to Katy Industries was not a factor in Ins decision
to discharge Russo. This is sharply contradicted by Oakes' own answer
submitted in connection with a compliant filed by Russo with the Occu-
pational Safety and Health Administration (OSHA), Case 2-d-2600-79-
in which ResPondent; as an affirmative defense, stated that Russo
was discharged in part because:
In August of 1978 without the knowledge of his inunediate supervi-
sor or president of the respondent corporation, he (Russo) wrote an-
other official, higher in the corporate command (Katy Industries)
criticizing the conduct of the president, Peter Oakes in his manage-
ment and administration of the Company.
Concerning Zuber, Oakes testified that Zuber was discharged primarily
because he was responsible for a delay in the densitometer project. This,
however, is contradicted by the testimony of Egan, a vice president of
Respondent, an agent thereof at the time, who testified that Oakes,
during the March 2 meeting, described above, mtended to fire Zuber for
contacting the state agencies regarding his concern over the radioactive
safety of the Kay Ray source.
Further, during his testimony of a 611(c) witness, Oakes testified that
on discharging Russo, he informed Russo that a major reason for his dis-
charge was errors attributable to Russo concerning the "Swiss Colony
job." When Oakes testified on direct in Respondent's case, however, he
did not mention the Swiss Colony job as a reason for Russo's discharge
during his discharge interview with Russo.
Regarding the reasons for the discharge of Kress, Oakes initially listed
some 13 separate reasons; included among these were (a) that Kress hot
rodded his car in Respondent's driveway, (b) that Kress threw a temper
tantrum, (c) that Kress failed to submit complete or timely written re-
ports, and (d) that Kress organized ski trips on company time On cross-
examination Oakes ultimately admitted that the primary, if not the sole
reason for the discharge of Kress was that he lacked leadership and failed
to exercise reasonable control of employees under him.
Further, throughout the facts recited in this case below, Oakes' testi-
mony is frequently contradicted by testimony of supervisors and other
neutral employees.
Additionally, I was totally unimpressed with Oakes' demeanor during
his testimony on both direct and cross-examination Oakes' testimony on
direct was often rambling, frequently exceeding the scope of the question
put to him. At other times, Ins testimony was totally incoherent. Particu-
larly during cross-examination, Oakes was often nonresponsive and argu-
mentative. Further, throughout his testimony, Oakes was very shifty and
nervous.
For the reasons set forth above and below, I find Oakes to be a totally
incredible and unbelievable witness
I found that Egan, a vice president and second in command at the time
of the alleged unfair labor practices, to be an extremely credible witness.
I was impressed by his demeanor throughout direct and cross-examina-
tion. He answered all questions put to him responsively and to the point.
Moreover, his recall of details appeared clear and detailed.
I was similarly impressed with the demeanor of Kress. He appeared to
me to be extremely responsive on both cross and direct examination. His
recollection of the facts to which he testified were detailed and spontane-
ous.
OAKES MACHINE CORP. 463
Halinski would be taking on added responsibility and
would receive a substantial raise. Oakes asked Halinski if
he was with him and Halinski replied yes.
E. The March 9 Discharges of Russo, Zuber, and
Kress
On March 9 at 10 a.m., Oakes handed out paychecks
to all employees in the engineering department. Included
in the pay envelopes of employees Halinski, Miglionico,
and Diaz, were the following letters dated March 9.
The letter to Halinski stated as follows:
The enclosed check no. 43 represents an increase
based entirely on merit and recent excellent per-
formance.
I trust you will keep up the good work and not
allow the temporary stritggle (emphasis supplied) in
Engineering to bother you.
The letter to Miglionico stated:
Gary, you're being considered for a merit in-
crease at the end of this month.
If you could stay clear of the present difficulties
concerning some of the personnel in Engineering, (em-
phasis supplied) which do not affect you, and keep
up the good work an increase will be forthcoming.
The letter to Diaz stated:
Len, you are being considered for a merit in-
crease at the end of March.
Please keep up the good work and do not let the
temporary personnel problems in Engineering (empha-
sis supplied) bother you.2
Through discussions among Halinski, Milionico, and
Diaz, Kress, Russo, and Zuber learned of the letters and
their contents. According to the testimony of Kress,
Zuber, and Russo, this led them to conclude that they
would be fired that day. Because of this conclusion, they
began to pack their personal belongings.
Sometime shortly after lunch, Oakes called Kress into
his office. Oakes asked Kress why he was packing his be-
longings and if he intended to resign. Oakes testified ini-
tially under Rule 611(c), pursuant to questions by coun-
sel for the Charging Party, that he told Kress that he
was being terminated because he felt there was no longer
communication between Kress and himself. Oakes there-
after testified pursuant to questions put to him by counsel
for the Respondent that he told Kress there was lack of
communication that existed, particularly since January
23, and that additionally, he was disturbed about a recent
March 5 letter from U.S. Motors, in which he learned
that Kress had terminated U.S. Motors as a supplier
without consulting him before such termination.3
2 Halinski received a raise on March 9 from $402 to $462 computed on
a biweekly basis. Mighomco got a raise on April 6 from $359 to $395
computed on a biweekly basis. Dias did not receive a raise as promised.
3 This is another example of material inconsistencies in Oakes' testimo-
ny. The details concerning the March 5 U.S. Motors letter will be dis-
cussed below.
Kress testified that Oakes informed him simply that he
was being discharged because he lacked leadership quali-
ties. According to Kress' testimony, Oakes did not men-
tion any other incident or express any other factor of dis-
satisfaction with his employment.
I credit Kress because of my credibility resolution de-
scribed above and in view of Oakes' admissions on cross-
examination in Respondent's defense when he admitted
that the primary reason for discharging Kress was that
he lacked leadership qualities.
After Kress left Oakes' office following notification of
his discharge, he met Zuber and told him that he had
been discharged and that Oakes wanted to see him
Zuber met with Oakes alone in his office. Oakes asked
Zuber if he intended to resign. Zuber stated he did not.
Oakes then told Zuber he had no other choice but to fire
him. Oakes testified that he told Zuber he was terminat-
ing him because of unsatisfactory work concerning com-
pletion of the densitometer. In this regard, he told Zuber
that he was particularly distressed that Zuber had told
John Stalzer, production manager, sometime in Novem-
ber to stop production on the densitometer without con-
ferring with Kress about this.
Zuber testified that Oakes told him that he was being
discharged because he was responsible for the lateness in
the completion of the densitometer. According to
Zuber's testimony, Oakes then stated there was a "prob.,
lem" in engineering and that the employees in engineer-
ing were conspiring to do things behind his back
For the reasons set forth above and described above, I
credit Zuber.4
Oakes then called Russo into his office. He asked
Russo why he was packing his belongings and whether
he intended to resign. Oakes initially testified in response
to questions put to him by attorney for the Charging
Party during a 611(c) examination that he informed
Russo he was being terminated for his poor attitude and
poor performance, resulting in errors on the Swiss
Colony job. However, when Oakes testified during Re-
spondent's case as to his conversation with Russo, he tes-
tified that he told Russo he was discharging him because
of his poor work attitude and his refusal to cooperate
with the purchasing department and himself.2
Thereafter, on cross-examination Oakes admitted, con-
trary to his 611(c) testimony, that during his discharge
interview with Russo he never mentioned the Swiss
Colony job to Russo.6
Russo testified that Oakes told him that he was dis-
gusted with his attitude toward his work and that he was
not getting along well with Purchasing Agent Bob
Weiss. Then Oakes pointed to a file on his desk, on top
of which was Russo's letter to Katy Industries. Accord-
4 I was particularly impressed with Zuber's credibility His answers to
questions put to him on direct and cross-examination were e dremely re-
sponsive and spontaneous. Moreover, he did not display any animosity
toward Respondent at any time during his testimony. He impressed me as
being a sincere and truthful witness.
5 There was an incident that took place early in 1979 involving Russo
and Bob Weiss, the purchasing department supervisors, which is de-
scribed below in connection with Respondent's defense.
5 The inconsistencies in Oakes' testimony concerning a critical area
further establish that Oakes is not a credible witness.
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mg to Russo, Oakes stated, "[I]f your next employer ever
called and asked for a job reference, I gonna send him a
copy of this letter to show him what kind of a person
you're going to be dealing with."
I credit Russo's testimony.7
On March 9, after notifying Kress, Zuber, and Russo
of their discharge, Oakes called Halinski into his office.
Halinski testified that Oakes then told him he wanted to
explain why Kress, Zuber, and Russo had been terminat-
ed. He told Halinski that Kress was terminated because
he lacked leadership and that Russo should not have
written the letter to Katy Industries.
Halinski testified that shortly after his meeting with
Oakes, Oakes met with him, Miglionico, and Diaz in the
lunchroom. Both Halinski and Miglionico testified that
Oakes told them that he had fired Kress because he
lacked leadership and Russo because of a letter he had
written to Katy Industries 'months earlier. Oakes did not
specifically deny the conversations with Halinsld, Mig-
lionico, and Diaz. I credit the testimony of Halinski and
Miglionico.8
Egan credibly testified that during the late afternoon
on March 9, he learned that Oakes had terminated Kress,
Zuber, and Russo. Because of their termination, Egan
submitted his letter of resignation setting forth his rea-
sons for resigning as follows: "Your actions in precipi-
tously firing half of the engineering staff and 85% of the
engineering experience at Oakes forces me to conclude
that you value personal consideration more than the on-
going success of the company." Egan then submitted his
resignation to Oakes in his office. During a discussion be-
tween Oakes and Egan immediately following his sub-
mission of resignation, Egan questioned Oakes why he
did not tell him on March 8 that he intended to termi-
nate Kress and Russo as well as Zuber. Oakes replied
that "he had cleaned house."
F. Respondent's Defense
1. Lewis Russo
Respondent contends that Russo was discharged be-
cause (a) Oakes was dissatisfied generally with Russo's
"attitude"; (b) two incidents involving Russo and Bob
Weis, Respondent purchasing agent; 8 (c) errors allegedly
committed by Russo in connection with the Swiss
Colony job.
Regarding Russo's poor attitude, Oakes' testimony was
rather vague. He testified that he was generally dissatis-
?Russo impressed me as a credible witness. He answered all questions
put to him on direct and cross-examination in a most responsive and
spontaneous manner. Additionally, he displayed no apparent hostility
toward Respondent. In connection with his testimony regarding the dis-
charge interview, I conclude that Russo lacked the imagination or inven-
tiveness to fabricate such testimony.
8 Both employees at the time of the hearing had voluntarily resigned
from Respondent and were employed elsewhere. Thus, they were at the
time they testified, neutral employees, with no motive to fabricate testi-
mony. Besides, there is no evidence that they had any personal relation-
ship with either Kress, Russo, or Zuber that might influence their testi-
mony. Additionally, both Halinski and Miglionico's demeanor impressed
me favorably. They were responsive and forthright to questions put to
them on direct and cross-examination.
9 It was stipulated that Bob Weis is an employee within the meaning of
Sec. 2(3) of the Act.
fled with Russo's "lack of trust in me and of his unwill-
ingness to express his feelings to, either directly to me or
to Ken Kress." However, Oakes testified that prior to
January 1979, he had no problems with Russo. More-
over, Oakes admitted that between January 1 and March
9, the date of Russo's discharge, he never spoke to Russo
about his attitude or any other alleged inadequacies relat-
ing to his job performance. Similarly, Kress testified that
Oakes had never complained to him about Russo's work
or his attitude.
Concerning the incidents between Russo and Weis, the
first incident took place sometime during the beginning
of February 1979. It involved an alleged refusal by
Russo, pursuant to a request from Weis, that Russo take
a phone message for Kress who was not then available.
The second incident occurred a few days later and in-
volved an alleged refusal by Russo to order a particular
holding tank from a supplier. (Respondent did not
produce Weis as a witness during this hearing.)
Russo testified concerning the first incident that Weis
had called him and told him there was a phone call on
another line for Ken Kress. Russo informed Weis that
Kress was not available and asked Weis to take a mes-
sage. With respect to the second incident, Russo testified
that he informed Weis that he had no authority to order
supplies and that this was Weis' function as purchasing
agent.
Oakes concedes that he never spoke to Russo concern-
ing either of these two incidents with Bob Weis. Oakes
further concedes that Weis was a newly hired employee
(approximately 5 weeks) at the time these incidents took
place.
With respect to the errors on the Swiss Colony job al-
leged to have been committed by Russo, Russo was re-
sponsible for the design of the Swiss Colony unit, which
was essentially a commercial mixer. It is alleged that in
connection with the plans Russo submitted to the pro-
duction department for the design of the Swiss Colony
mixer, the location of the motor holes to be drilled in the
base plate to receive the motor were improperly located
so that when the motor ultimately arrived for fitting on
the base plate, the mounting screws on the motor did not
coincide with the location of the holes drilled through
the base plate by the production department.
Russo testified that the motor to be used for the Swiss
Colony job was not available in the plant and had to be
ordered from their outside supplier, Reliance Electric.
Accordingly, Russo located the holes in the plans pursu-
ant to the specifications set forth in the Reliance cata-
logue.
There is no dispute that the production department
drilled the holes in the base plate pursuant to Russo's
design and that when the motor was mounted the mount-
ing screws on the motor did not align properly with the
holes drilled into the base plate.
John Stalzer, production manager, testified contrary to
Russo that the motor was in house at the time and would
not fit the base plate pursuant to the holes drilled in ac-
cordance with Russo's plans. Stainer testified that he at-
tempted to align the motor with the holes sometime in
the beginning of February 1979, at which time he deter-
OAKES MACHINE CORP. 465
mined that the holes were not drilled properly. Howev-
er, Stalzer's testimony in this regard is contradicted by
his subsequent admission on cross-examination that on
February 22 he wrote a memo to Peter Oakes to the
effect that the Reliance motor for the Swiss Colony job
had not yet been received from Reliance. Because of this
serious and material contradiction, I do not credit
Stalzer's testimony in this regard.
Employee Miglionico credibly testified that Stalzer
told him sometime in April 1979, when he received the
motor from Reliance Electric, that the motor did not
align properly with the holes drilled in the base plate.
Similarly, Walter Johnson testified that Halinski told him
in April that the motor for the Swiss Colony job did not
align properly with the holes drilled in the base plate.
Moreover, Egan, Kress, and Russo credibly testified
that neither Oakes nor anyone from the engineering or
production departments spoke to them concerning any
mistakes in the Swiss Colony job attributable to Russo.
Additionally, when pressed on cross-examination
Oakes was unable to testify as to the date he learned of
the alleged mistakes involving the motor mount holes in
the Swiss Colony drawings and ultimately admitted that
he did not cite to Russo, during his discharge interview
with him, any errors attributable to him concerning the
Swiss Colony job.
In view of the credible testimony of Russo, Egan,
Kress, Miglionico, and Johnson, coupled with the inabil-
ity by Oakes to recall when the errors in the Swiss
Colony job took place and his admission that he did not
cite this to Russo during his discharge interview, / find
that the errors in the Swiss Colony job were discovered
sometime in April 1979, following Russo's discharge.
Additionally, Russo and Stalzer both testified that such
errors or mistakes are quite common. Moreover, such
mistakes are relatively easy to correct.
Further, Stalzer testified that he never looked at the
Reliance motor specs and was not able to state whether
the specifications differed from the actual motor received
by Reliance as Russo alleged.
2. The discharge of James Zuber
Respondent contends that Zuber was discharged be-
cause he was responsible for a delay in the densitometer
project. Specifically, Respondent contends that Zuber
ordered production on the densitometer stopped some-
time about mid-November 1978 without authorization to
do so. Additionally, Respondent contends that Zuber
failed to have the electronic circuitry on the densitome-
ter tested in a timely manner
With respect to Respondent's contention concerning
Zuber's stopping the production of the densitometer, the
evidence established the following.
On October 9, 1978, Oakes issued a memo to sales and
engineering that provided, in substance, that all further
effort directed to the improvement or development of
the densitometer be stopped immediately and that any
further work on the densitometer be limited to complet-
ing production on the six densitometer units currently in
the shop. On November 8, 1978, one of the densitome-
ters then in production was tested at Royal Cake Bak-
eries in Winston Salem, North Carolina. Present during
this test were Zuber, Kress, Walter Johnson, and
Oakes." A mix was run _though the densitometer to
check how the unit was functioning. The test results
turned out to be unsatisfactory. It was concluded after
some discussion by the above individuals, that the unsat-
isfactory results were attributable to an improper valve
system. It was further concluded that it would be neces-
sary to use a different type of valve and incorporate such
valve into the valve system. These valves were not avail-
able in stock and had to be ordered from an outside sup-
plier. Zuber testified that following their return to Re-
spondent facility and pursuant to the discussion at Royal
Cake, he notified John Stalzer, production manager, to
stop productim on the valve systems of the six densitom-
eter units because the present valve system was unsatis-
factory and a new valve system would have to be devel-
oped. Stainer did not confirm Zuber's instructions with
either Kress or Oakes. Moreover, Oakes admitted, al-
though he received regular production reports from
Stalzer that described the projects currently being
worked on and their state of production, that Stalzer
failed to include Zuber's instructions in any of his pro-
duction reports.
Oakes admitted that he received regular production re-
ports from John Stalzer concerning the status of all work
currently in production. Additionally, he testified that he
-talked with Stalzer on a weekly basis concerning the
projects under production. Oakes, however, admitted
that he never inquired during the November through
February period of Stalzer about the status of the densi-
tometer project. Moreover, Oakes admitted that during
this period he assigned Zuber to work on other projects.
Sometime in January 1979, Oakes inquired of Stalzer
as to the status of the densitometer. Stalzer informed him
that he had stopped production on the units pursuant to
Zuber's instructions. Oakes immediately called a meeting
and met with Egan, Walter Johnson, Kress, Zuber, and
Stalzer in his office. Oakes and Stalzer placed the time of
this meeting on February 27, 1979, while Egan, Johnson,
Zuber, and Kress testified that the meeting took place
sometime in mid-January 1979. I credit the testimony of
Egan, Johnson, Kress, and Zuber."
During the meeting that ensued, Oakes questioned
Stalzer why production on the densitometer had been
stopped. Stalzer told Oakes that Zuber had told him to
stop production on the densitometer because of a me-
chanical problem. Zuber then told Stalzer there had ap-
parently been a misunderstanding and that he had not
said to stop the total production, only production on the
valve system.
In any event, Stalzer testified on cross-examination
that following Zuber's instruction he had stopped pro-
duction on the valve system and the circuit boards and
that production on the remaining portions of the densi-
10 The unit was tested at Royal Cake because Respondent had no fa-
cilities for making such test.
" Their testimony is credited as to the time of the meeting in view of
my credibility resolutions with respect to all of the above individuals de-
scribed above. In this regard, I particularly note Stal7Pr's material contra-
diction with respect to the date the motor for the Swiss Colony job was
received. Moreover, the testimony of Kress and Zuber is corroborated by
Respondent's agent, Egan
466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tometer continued. In this connection, Stalzer testified
that production had been stopped on the circuit boards
because they were being wired by an outside subcontrac-
tor and were not in the shop. Production had been
stopped on the air valve system pursuant to Zuber's in-
structions, but that production continued on the densi-
tometer stands, the casting of the unit itself, and all other
parts of the unit, except the air valve assembly and elec-
tric circuit board.
About February 27, Kress met briefly with Oakes in
his office. Oakes told Kress he wanted the densitometers
completed by March 5 or "heads would roll." He told
Kress to have Zuber see him as soon as he reported- to
work.
When Zuber reported to work, Kress informed him
that Oakes wanted to see him in his office. Zuber met
with Oakes alone in his office. Oakes told Zuber that En-
temnarms (bakery), had canceled its order for a densi-
tometer because it was late. Oakes then told Zuber that
he wanted those densitometer units out by March 5 or
Zuber would be fired. Zuber told Oakes that the only
item remaining to complete the densitometer unit was to
test the circuit boards, which were being wired by a sub-
contractor. He told Oakes he would test the electronic
circuitry of the boards as soon as they were shipped to
Respondent's facility from the contractor, but that it
would be impossible to test the boards by March 5.
Zuber testified that Oakes fmally agreed to give him
until March 9 to test the boards. Oakes testified that he
agreed to give Zuber until March 5 to test five of the
boards and that the remaining two boards would have to
be tested by March 9. Oakes prepared a memo to this
effect. He testified that his secretary, Barbara Shultz,
typed the memo and delivered it to Zuber. Shultz admit-
ted typing the memo but could not recall delivering it to
Zuber. Zuber denies such memo was delivered to him
In any event, Oakes testified that on March 5 he was
informed (presumably by Zuber or Kress), that all the
boards were installed and the units were ready to be
shipped.
3. Respondent contends that Kress was discharged
for a lack of leadership qualities and a failure to
communicate with Oakes
Ken Kress was hired by Respondent on October 4,
1976, as an electrical technician. In January 1977, Kress
was promoted to the position of chief engineer and re-
ceived a raise in pay at this time. Oakes conceded that
following his appointment to the position of chief engi-
neer, he had no cause to complain about Kress' work. In
fact Kress received, thereafter, annual raises around Jan-
uary of each year. About August 1977, Kress was ap-
pointed to the position of executive vice president by
Oakes. Such promotion involved no increase in salary
but did involve an increase in responsibilities. In this con-
nection, Kress was now required to attend corporate
meetings, sign checks, and make various high-level man-
agement decisions.
Throughout the course of Oakes' testimony as a 611(c)
witness and subsequently as Respondent's witness in its
defense, he set forth numerous reasons that he contended
were responsible for his decision to discharge Kress.
These reasons included the following: (a) Kress was un-
professional because he organized ski trips on company
time; (b) in August 1978 Kress threw a temper tantrum
and put his fist through a closed door; (c) Kress hot
rodded his car in the driveway of Respondent's facility;
(d) Kress failed to submit proper oral reports prior to
August 1978; (e) written monthly reports filed by Kress
subsequent to August 1978 were late and incomplete; (f)
Kress failed to instruct employees that the radioactive
source could not legally be removed from the source
holder within the plant pursuant to instructions con-
tained in the Kay Ray manual; (g) Kress unilaterally ter-
minated Respondent's dealings with U.S. Motors, Re-
spondent's supplier, without proper authorization; (h)
Kress granted too many vacation requests in his depart-
ment for the same period of time; and (i) Kress failed to
give Oakes proper explanations of reports submitted by
Mosi Chu, causing Oakes to fire Chu.
In connection with paragraph (a), the testimony of
Kress and Oakes established that Kress, an avid skier, or-
ganized ski trips throughout his employment at Oakes.
The work involved in setting up such trips, however,
was done by Kress at his home. He did post notices - per-
taining to his ski trips on Respondent's bulletin boards.
In fact, Oakes accompanied Kress on several such ski
trips. Moreover, Oakes never criticized Kress' use of Re-
spondent's bulletin boards to post notices concerning
such ski trips. With respect to (b), the testimony of Kress
and Oakes established that sometime in August 1978,
Oakes came into Kress' office and questioned hilt con-
cerning a sales order for certain outlet piping. Oakes
questioned that such piping had been ordered and Kress
replied that he had the sales order indicating that the
piping had been ordered. Oakes asked, "Who the hell is
going to pay for this, shall I take it out of your salary."
He then stormed out of the office stating loudly, "That's
the problem around here, one fucking asshole doesn't tell
the other one what he is doing." Thereafter Kress testi-
fied that he became extremely angry and smashed his fist
against the door denting the lock mechanism somewhat.
However, Oakes never spoke to Kress concerning this
incident. With respect to (c), on cross-examination Oakes
conceded that Kress' hot rodding his car in Respondent's
driveway was after all not a factor leading to his dis-
charge and withdrew such contention. With respect to
(d), the testimony of Kress and Oakes established that
there was no requirement that Kress submit regular
monthly or other periodic oral reports concerning the
projects under his direction. Rather the testimony estab-
lished that prior to August 1978, Kress and Oakes had
frequent informal conversations on jobs under Kress' su-
pervision. Moreover, there is no testimony or other evi-
dence that established that Oakes ever criticized Kress
for his failure to communicate to him orally concerning
the status of engineering projects under his supervision.
With respect to (e), the testimony of Kress and Oakes es-
tablished that on August 11, 1978, Oakes sent a memo to
Kress requiring monthly reports on engineering projects
under Kress' direction. Oakes, however, admitted under
cross-examination that following this memo he regularly
'
OAKES MACHINE CORP. 467
—received timely and complete written' reports from Kress
pursuant to the memo.
In connection with (f), the evidence failed to establish
what provision or section of the Kay Ray manual pro-
hibited removing the radioactive source from the source
holder. Counsel for the Respondent contended that if the
State Nuclear Regulatory Agency concluded a violation
had been committed by moving the radioactive source
from one unit to another, such prohibition must have
been set forth in the Kay Ray manual and, therefore,
Kress was delinquent in his duties for not reading the
manual thoroughly and instructing employees under him
not to remove the radioactive source from the holder. In
this connection, the record established the following:
JUDGE EDELMAN: Mr. Hogan my question to
you is very simple, are you contending that Mr.
Kress was delinquent in his duties because he failed
to read the manual (Kay Ray Manual) properly and
failed therefore to instruct employees pursuant to a
manual issued by Kay Ray in the proper handling
of the source?
Mn. HOGAN: No I wouldn't ask you to make that
presumption.
JUDGE EDELMAN* I think that you should be pre-
pared to show me where in the manual, what sec-
tion in the manual he failed to comply with. Are
you prepared to do that?
Mn. HOGAN: Not at this moment I'm not.12
JUDGE EDELMAN: (t0 Attorney Hogan) I will put
it to you this way: If you cannot provide a specific
manual instruction that is in that manual (Kay Ray
Manual) that Mr. Kress should have read and failed
to read and failed to impart to the employees, I'm
not going to make the presumption . . . that
moving the source head around from unit to unit
was improper.
MR. HoGAN: I wouldn't quarrel with that propo-
sition. I agree 100%."
Neither Respondent's attorney nor witnesses called by
Respondent were able to produce at any point during
this hearing a reference to that portion of the Kay Ray
manual that convinced Oakes that Kress should have
known the source should not have been removed from
the source holder.
With respect to (g), the testimony of Kress and Oakes
established that Respondent had long used U.S. Motors
as a supplier of motors. Sometime during the latter part
of 1978, however, Kress and Oakes were discussing a
long standing problem concerning timely deliveries from
U.S. Motors. At this time Oakes told Kress that Re-
spondent needed a second supplier of motors to correct
this problem. Pursuant to this conversation, Kress made
contacts with Reeves, as a motor supplier. This was done
admittedly with Oakes' knowledge. Accordingly, Reeves
was established as an additional supplier of motors for
Respondent. Moreover, Oakes admitted that Respondent
received more timely deliveries from Reeves than from
U.S. Motors. Thereafter on March 5, U.S. Motors sent
12 Trial record at 819-820.
13 Trial record at 822-823.
ItesPonrient a letter stating in part: "Ken (Kress) I appre-
ciate your honesty in advising that Reeves will be your
major supplier in the future and thank you for your past
association with U.S. Motors. Unfortunately, the deliv-
ery problems of last year which could have been solved
by this stock program had already done irreconcilable
damage."
Oakes received this letter on March 5 or 7 and admit-
tedly never spoke to Kress about the contents of the
letter at any time prior to his discharge.
With respect to (h), Oakes contends that Kress showed
poor management judgment by scheduling overlapping
vacations within the engineering department. Kress testi-
fied that he never scheduled vacations, but that he
merely listed employees' vacation requests for Oakes'
subsequent decision regarding when the employees
would be granted vacations.
In this connection, the engineering report for the
month of February, 1980 from Kress to Oakes sets forth
vacation "requests" and proceeds to list the following:
Lew Russo

Mar. 19-23

1 week
John Halinski

Mar. 29-30

2 days
Jim Zuber Mar. 19-23

1 week
Ken Kress

Mar. 19-23

1 week
Below the list of requested vacations in caps is the fol-
lowing, "PLEASE ADVISE ON THE ABOVE VA-
CATIONS."
With regard to (i), the testimony of Kress and Oakes
established that Musi Chu was a physicist hired by Re-
spondent in January 1978 to perform certain basic re-
search and aid in solving various technical problems oc-
curring in connection with development of the densi tom-
eter.
Sometime in July 1978, Oakes for the first time asked
Kress for a report on Chu's work. Oakes testified that
Kress responded by giving him a verbal description of
Chu's work to date. (Such oral report was made at a
time when written reports were not required by Kress.
Written reports became required effective September
1978.) Oakes thereafter testified that sometime in Sep-
tember, he received two written reports that had been
prepared by Chu, which he was unable to understand.
Following the receipt of Chu's reports, Oakes thereafter
requested that Kress supply him with a report of Chu's
work to date in "lay language" so that he could under-
stand Chu's progress. Before such report could be com-
piled, however, Oakes issued a memorandum on October
9, discontinuing all further "engineering effort expended
on improvement or development" of the densitometer
and directing all further work on the densitometer be di-
rected toward production. On October 31, 1978, Oakes
wrote a letter to Chu enclosing with this letter a copy of
the memo dated October 9, described above, notifying
Chu that his services were no longer necessary. The
reason set forth in the October 31 letter for Chu's termi-
nation was the discontinuance of further research and de-
velopment on the densitometer project.
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Oakes at no time thereafter requested from Kress any
report on Chu's work, nor did he at any time criticize
Kress for any failure to submit a written report in "lay
language" of Chu's progress up to the period of his ter-
mination.
On January 23, Stalzer came to Oakes' office com-
plaining about a lack of cooperation between the produc-
tion and engineering department. Oakes called in Kress
and the three individuals discussed the situation. Oakes
testified that the problem involved Stalzer's complaint
that the engineering department submitted too many
plans and specifications with errors, requiring wasted
production hours to correct these mistakes. Kress testi-
fied that the complaint involved a contention by Stalzer
that Kress had held back a shipment of machines without
informing Stalzer. Kress explained he indeed held back
such shipment because his inspection indicated that the
machines were mechanically unsound. He informed
Stainer and Oakes that he did not tell Stalzer of this at
the time because Stalzer was not in the production area
when he discovered the flaw in the machines and made
the decision to send it back.
In view of my credibility evaluation with respect to
Oakes and Kress, as set forth above, I credit the testimo-
ny of Kress.
In any event, as a result of this discussion, which ad-
mittedly grew quite heated, Kress voluntarily resigned
his position as executive vice president. Oakes accepted
this oral resignation. Kress continued to operate in the
capacity of chief engineer.
An examination of Oakes' testimony and Respondent's
brief established that the primary reason Oakes dis-
charged Kress was that he failed to establish what Oakes
considered to be a sufficient degree of control over the
employees under him and failed to require them to
follow the chain of command. In this connection, Oakes
testified that the reason for Kress' discharge as a chief
engineer "is that here he's conducting the Engineering
Department and I didn't feel that he (Kress) was capable
of commanding their respect." At another point Oakes
testified describing the events of the March 2 meeting
that he told Kress that he wanted to know what could
be done to get Zuber "to realize that there's a legitimate
chain of command . . . What do we do with Jim
Zuber to get him to realize that there's a company struc-
ture? That there are other people that he had to work
with, why Ken Kress did not go to you?" Oakes then
described an example of when he was employed by
Grumman and he and five or six other employees had
been subjected to a high level of radiation, but rather
than contact an outside agency, he and the other em-
ployees contacted their immediate supervisor.
That Oakes regarded Kress' inability to establish in his
employees a respect for the chain of command so that
Zuber would not have contacted any regulatory agencies
(or that Russo would not have sent the letter to Katy In-
dustries), is established in Respondent's brief, in which
Respondent's attorney contends as an example of Kress'
lack of leadership, his failure to dissuade Zuber from
calling the health department. In this regard, Respond-
ent's brief" states as follows: ,"Finally, when he (Kress)
is informed by Zuber of Zuber's concern over safety,
and his intention to call the New York State Health De-
partment, he fails to recognize his responsibility to dis-
suade Zuber from calling the Health Department . . . .
Instead, he thoroughly passes it it off by telling Zuber to
inform Egan."
Kress credibly denied that Oakes ever criticized him in
connection with his leadership qualities or threatened
him at any time during his employment with discharge.
Analysis and Conclusions
A. The Discharge of Louis Russo
The credible evidence established that the sole factor
in Respondent's decision to discharge Russo was his
sending the Katy letter, described above, to Katy Indus-
tries." This is conclusively established through Re-
spondent's admissions, contained in its answer submitted
in connection with the OSHA complaint, and his candid
admission to employees Halinski, Miglionico, and Diaz
on M4rch 9, the date of Russo's discharge, that he had
discharged Russo because he had sent the above letter.
The evidence further established that it had always
been Oakes' intention to discharge the individual who
sent the letter to Katy from the moment Katy Industries,
Inc. had made Oakes aware of such letter, on August 23,
1978. This is established by Egan's testimony that Oakes
told him that when he found out who wrote the letter he
would fire such individual.
That Oakes discharged Russo solely because of the
Katy letter is further established on an examination of
Respondent's defense. In this regard, Oakes testified that
a major reason for Russo's discharge was his general dis-
satisfaction with Russo's "lack of trust in me and his un-
willingness to express his feeling to, either directly to me
or to Ken Kress." Such statement translates, in my opin-
ion, and in view of all other evidence in connection with
Russo's discharge, to an admission that Russo was dis-
charged because he failed to state his complaints to
Oakes directly, rather than my means of the letter to
Katy Industries, Inc. Oakes' defense is further contradict-
ed by his admission that prior to January 1979, he had
no problems with Russo's attitude. In fact, Russo was
such a trusted and valued employee that during the year
1978 he received four separate merit increases. Addition-
ally, Oakes admitted that he never complained to Russo
about either his work or his attitude.
It is evident that the alleged incidents involving Bob
Weis had nothing to do with Oakes' decision to dis-
charge Russo. In this connection, Weis was a new em-
ployee, being employed only 5 weeks at the time that
Russo was discharged, compared with Russo, a long-
time, valued and trusted employee, prior to Oakes' dis-
covery that he had sent the letter to Katy Industries, Inc.
Moreover, Oakes conceded that he never spoke to Russo
concerning the alleged incidents involving Bob Weis. In
this respect Respondent did not call Weis as a witness to
14 R. Br. at 32, 3d par.
15 Wright Line, 251 NLRB 1083 (1980).
OAKES MACHINE CORP. 469
corroborate Oakes' assertion that the alleged incidents
took place.
Oakes' contention that Russo's discharge resulted in
part from errors attributed to him in connection with the
Swiss Colony job is complete and utter nonsense, as the
testimony of Johnson and Miglionico established conclu-
sively that such errors were discovered after Russo's dis-
charge. Moreover, Oakes admitted ultimately during
cross-examination that in his discharge interview with
Russo he never mentioned to Russo the Swiss Colony
job as a cause for his discharger Additionally, Egan and
Kress testified that Oakes never mentioned any errors in
the Swiss Colony job attributable to Russo.
Accordingly, I conclude that Respondent discharged
Russo because he had sent the letter to Katy Industries,
Inc. The only question remaining is whether such activi-
ty by Russo is protected activity within the meaning of
Section 8(a)(1) of the Act.
There is no question that letter itself expressed the dis-
satisfaction of the employees generally with the manner
in which Peter Oakes ran the Company. In this respect,
the evidence established that the letter was composed as
a result of numerous employee complaints concerning
Oakes' lack of efficient management, which had resulted
in lower company profits and hence a low annual wage
increase coupled with a small bonus. The wording of the
letter itself reflects such employee concern. Moreover,
the letter consistently uses the pronoun "we" expressing
the various complaints set forth therein. It is reasonable
to assume that anyone reading this letter would conclude
that such letter represented the collective thinking of
more than one employee. Therefore, at the time Peter
Oakes discharged Russo, he was aware that although
Russo was the sender of the Katy letter, the letter repre-
sented the complaints of his employees generally.
The Board has consistently held that employees' com-
plaints to management about the quality and capability of
supervisory personnel are protected activity within the
meaning of Section 8(a)(1). In the instant case such capa-
bility and qualities had a direct impact on employees'
wages, hours, and working conditions because their
annual raises and bonuses depended on efficient manage-
ment to insure annual profits from which such raises and
bonuses would be distributed. Thus, the Board held in
Puerto Rico Sheraton Hotel, 248 NLRB 867 (1980), that
the drafting, mailing, and distribution of a letter that
complained to higher management about a general man-
ager's operation of a hotel, which was signed by supervi-
sory and other employees, constituted legitimate concert-
ed activity by such employees for their mutual aid and
protection within the meaning of Section 7 of the Act
and that the discharge of employees for their participa-
tion in connection with such letter constituted a violation
of Section 8(a)(1) of the Act." Accordingly, I conclude
that Respondent discharged Lewis Russo for sending the
letter to Katy Industries. I further conclude that such
discharge violated Section 8(a)(1) of the Act.
16 See also Huchiner Mfg. Co., 238 NLRB 1253 (1978); NLRB v. Phoe-
nix Mutual Life Insurance Ca, 167 F.2d 983 (7th Cir. 1948); NLRB v.
Guernsey-Muskingum Electric Co-op., 285 F 2d 8 (6th Cir. 1960)
B. The Discharge of James Zuber
As in the case Russo, I am convinced beyond any
doubt that Respondent discharged James Zuber solely
because he filed complaints with the New York State
Nuclear Regulatory Agency and the Suffolk County
Health Department. In this connection, the testimony of
Egan, Respondent's vice president, established that
during the March 2 meeting Peter Oakes stated, in dis-
cussing how to handle Zuber's complaint to the Nuclear
Regulatory Agencies, that he intended to fire Zuber. In
the context of the discussion that took place during this
meeting, I conclude that such intention was motivated
solely by Zuber's complaints to these agencies. When
Kress reminded Oakes that Zuber was legitimately con-
cerned about his health and had a legal right to contact
appropriate agencies, Oakes replied that he had already
reported the incident (the Zuber complaints to the regu-
latory agencies) to Katy and at this point it was out of
his hands. Significantly, during the discussion that
ensued, the only topic discussed was Zuber's complaint
and how to handle it. At no time did Oakes criticize the
quality of Zuber's work on the densitometer or in any
other respect. Moreover, Oakes' statement that he had
reported the incident to Katy and it was now out of his
hands strongly implies that the discharge was motivated
by Zuber's reporting the incident to state authorities
rather than for unsatisfactory work performance, since it
is highly unlikely that Oakes, the president of Respond-
ent, would discuss, or be required to discuss, with Katy
an employee he intended to fire for unsatisfactory work
performance.
Moreover, assuming arguendo, Oakes' version of the
March 2 meeting, at which he testified that he asked
Kress and Egan, "What can we do discipline Zuber?"
taken in connection with the discussion on how to
handle Zuber's complaint, establishes that Oakes intend-
ed to discipline Zuber for contacting the above agencies
concerning the safety of the Kay Ray mechanism rather
than for any dissatisfaction with his work.
I also conclude that Respondent's defense fails to over-
come the General Counsel's strong prima facie case. Re-
spondent contended that Zuber was discharged for or-
dering a halt to the production of the densitometer and
for failing to complete the electric circuitry of the densi-
tometer by a specified time limit. An examination of Re-
spondent's contentions, however, established that they
were pretextual in nature. Wright Line, supra.
It is undisputed that as a result of the October 9
memo, all further research and development work on the
densitometer ceased; all further work being directed to
completing production of the six densitometer units cur-
rently in the shop. Moreover, there is no dispute that on
November 8, one of the densitometers then in production
was tested at Royal Cake Bakeries in Winston Salem,
North Carolina, where it was determined that the
present valve system was unsatisfactory and that it
would be necessary to develop and incorporate a differ-
ent valve system into the denistometer before production
could be completed. The valves intended for use in the
new valve system were not available in Respondent's
stock and had to be ordered from the outside. Conse-
470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
quently, Zuber, following his return to Respondent's fa-
cility and pursuant to the decision reached as the result
of discussions with Kress, Walter Johnson, and Oakes
notified John Stalzer, production manager, to stop con-
struction on the valve systems. Although it appears that
Stalzer interpreted Zuber's statement to mean that he
was to stop all production on the densitometer, he did
not do so. He did stop work on the valve system, but
continued production on the remaining portions of the
densitometer, except for the electric circuit boards that
had been sent to an outside contractor to be wired. In
any event, during the meeting that took place in January
1979, Zuber pointed out the apparent misunderstanding
between Stalzer and himself and there was no criticism
of Zuber at this time.
Oakes' second reason for discharging Zuber, namely
that he failed to have the electronic circuitry on the den-
sitometer tested within the time limitations set forth by
Oakes, is contrary to the facts. In this respect, whether
Oakes' testimony that the circuitry was to be completed
by March 5 is credited, or that of Zuber that he had
until March 9, the evidence established that the circuits
were complete and tested by March 5 and Oakes was so
informed. Therefore this could not have been a motivat-
ing factor in Zuber's discharge.
Accordingly, I conclude that Zuber was discharged
solely because he complained about the safety of the Kay
Ray mechanism to the New York State Department of
Health and the State Nuclear Regulatory Agency.
The issue now arises whether the complaint by Zuber
to the Suffolk County Department of Health and the
New York State Nuclear Regulatory Agency was a pro-
tected concerted activity. The Board has held in Alleluia
Cushion Co., 221 NLRB 999 (1975), that when an em-
ployee complains about safe working conditions to agen-
cies whose function it is to protect the safety of employ-
ees such complaint, by implication, is designed for the
benefit of all employees in the absence of any evidence
that fellow employees disavow such representation. In
Alleluia, the Board found the discharge of an employee
because he had filed a complaint under the California
Occupational Safety and Health Act (OSHA) violated
Section 8(a)(1) of the Act.
I therefore conclude that Zuber's complaint to the nu-
clear agencies was protected concerted activity and that
Respondent, by discharging Zuber for engaging in such
activity, violated Section 8(a)(1) of the Act.
C. The Discharge of Kenneth Kress
An examination of Oakes' rambling, inconsistent, con-
tradictory, and illogical testimony established that the
primary reason, if not the only reason, for discharging
Kress was that he failed to establish a sufficient degree of
control over the employees under him, and he failed to
require them to follow a chain of command, that would
have prevented Russo's letter to Katy Industries and
Zuber's complaints to the above regulatory agencies.
This is established through Oakes' testimony. In this re-
spect, Oakes testified that the reason for Kress' discharge
as chief engineer was that "here he's conducting the en-
gineering department and I didn't feel that he (Kress)
was capable of commanding their (the employees) re-
spect." Oakes further testified in connection with the
March 2 meeting that he told Kress that he wanted to
know what could be done to get Zuber "to realize
there's a legitimate chain of command. What do we do
with Jim Zuber to get him to realize that there's a Com-
pany structure? That there are other people that he is to
work with, why Ken Kress did he not go to you?"
Thus, it appears that Oakes' primary dissatisfaction
with Kress was his failure to command sufficient respect
from the employees under him so that they would come
to him before, as in the case of Zuber, contacting state
regulatory agencies, or as in the case of Russo, before
sending letters to Katy Industries, Inc. That Oakes re-
garding Kress' inability to establish in his employees
such a respect for "chain of command" is established
conclusively by Respondent's brief, in which the Re-
spondent's attorney contends as an example of Kress'
lack of leadership, his failure to dissuade Zuber from
calling the health department. The same contention
would be equally applicable in the case of Russo's letter.
I also conclude that a concurrent reason for Oakes' de-
cision to discharge Kress was Kress' statement made
during the March 2 meeting of his intention to testify on
Zuber's behalf should Zuber be discharged. In this con-
nection, Oakes had already made a decision to discharge
Russo and Zuber. It is highly probable that he regarded
Kress' statement of intention to protect an employee that
Oakes considered a troublemaker to be an act of treach-
ery by Kress, which reinforced Oakes' decision to dis-
charge Kress.
The timing of the discharges also strongly leads to the
conclusion that Oakes was attempting to eliminate, in
one single action, those employees that he considered
troublesome. Russo was to be discharged because, while
a once trusted employee, he had turned on Oakes when
he sent the letter to Katy. Zuber was to be discharged
because he failed to communicate his concern about the
Kay Ray device to Oakes before contacting state regula-
tory agencies, and Kress was to be discharged because
he failed to establish the proper confidence and respect
from his employees that would have dissuaded Russo
from sending the letter to Katy, and Zuber from contact-
ing the state regulatory agencies. Additionally, Kress'
position that he would stand by Zuber and testify on his
behalf in court, if necessary, must have infuriated Oakes
and implanted further in his mind that Kress was a dis-
loyal employee. As Egan testified, the discharge of
Russo, Zuber, and Kress at one time represented a virtu-
al elimination of the engineering department itself, the
result of which caused Egan to resign. As Egan stated in
his letter of resignation, "Your actions in precipitously
firing half the engineeringstaff and 85% of the engineer-
ing experience at Oakes forces me to conclude that you
value personal consideration more than the ongoing suc-
cess of the Company." This statement in itself by Egan,
then a vice president of Respondent, suggests that the
discharge was motivated by the concerted activities of
Russo and Zuber, and Kress' failure to dissuade the em-
ployees from engaging in such activities, rather than un-
satisfactory work performance, as contended by Oakes.
OAKES MACHINE CORP. 471
Additionally, the letters to employees Halinski, Mig-
lionico, and Diaz further suggest that the discharge of
Russo, Zuber, and Kress was related to their activities,
described above, rather than unsatisfactory work per-
formance. In this regard, the letter to Halinski refers to
the "temporary struggle in engineering," the letter to
Miglionico implores him to "stay clear of the present dif-
ficulties concerning some of the personnel in engineer-
ing," and the letter to Diaz refers to the "temporary per-
sonnel problems in engineering."
That Kress' discharge was motivated by his failure to
dissuade Russo and Zuber from engaging in the protect-
ed activities described above and by his intention to aid
Zuber by testifying on his behalf in court, if necessary, is
established conclusively by an examination of the pretex-
tual reasons attributed by Oakes to Kress as reasons for
his discharge in Respondent's defense.
Thus, Oakes contended that Kress was unprofessional
because he organized ski trips on company time. In this
respect, the evidence established that the work involved
in setting up such ski trips was done by Kress at home
and that his activities on company time were limited to
posting notices pertaining to his ski trips on Respondent's
bulletin board. Moreover, Oakes himself accompanied
Kress on several such ski trips. I conclude this conten-
tion by Oakes to be pretextual.
Oakes further contended that sometime in 1978 Kress
had displayed a temper tantrum and had smashed his fist
against one of Respondent's doors. I conclude that such
an isolated instance is hardly cause for discharge of an
employee. Moreover, the incident took place in 1978 and
Kress was not warned about it. I therefore consider this
contention by Respondent to be pretextual.
Oakes initially contended that Kress' discharge was in
part motivated by an incident in which he hot rodded his
car in the driveway of Respondent's facility. Oakes sub-
sequently during the course of his testimony admitted the
pretextual nature of such contention and withdrew this
as a cause for Kress' discharge.
Oakes' contention that Kress failed to submit proper
oral reports prior to August 1978 is also pretextual. In
this respect, the evidence established there was no re-
quirement that Kress submit regular monthly or other
periodic oral reports concerning projects under his direc-
tion. Rather the evidence established that Kress and
Oakes had frequent informal conversations concerning
all jobs under Kress' supervision. There is no evidence
that Oakes criticized Kress during this period for his fail-
ure to communicate to him orally that status of any engi-
neering project under his supervision.
Oakes' contention that Kress failed to submit timely
and complete written reports is also clearly pretextual. In
this respect, the evidence established that on August 11,
1978; Oakes by a written memo required Kress to submit
monthly reports on engineering projects under his direc-
tion. Thereafter, Oakes admitted on cross-examination
that contrary to his initial contention, Kress did submit,
without exception, timely and complete written reports.
Oakes' contention that Kress failed to read the Kay
Ray manual thoroughly and as a result failed to instruct
employees that the radioactive source could not legally
be removed from the source holder within the plant, is
also clearly pretexutal. In this respect, neither Oakes nor
his attorney was able at any time during the course of
the hearing or in the brief to direct attention to any para-
graph in the Kay Ray manual that would indicate that
the source could not legally be removed from the source
holder within the plant.
Oakes' contention that Kress unilaterally terminated
Respondent's dealing with U.S. Motors, Respondent sup-
plier, is also clearly pretextual. In this regard, the evi-
dence established that sometime in the latter part of
1978, Oakes himself, in discussing a longstanding prob-
lem concerning timely deliveries from U.S. Motors, told
Kress that Respondent needed a second supplier of
motors to correct this problem. The evidence established
that as a result of Oakes' direction, Kress thereafter made
contact with Reeves Motor as a supplier. This was ad-
mittedly done with Oakes' knowledge. In this connec-
tion, Oakes admitted that he was aware that Kress had
obtained Reeves as a supplier and indeed, that Respond-
ent received more timely deliveries from Reeves than
from U.S. Motors. That U.S. Motors should send Kress a
letter acknowledging notification of Reeves as Respond-
ent's major supplier could not have come as a surprise to
Oakes. In any event, the evidence established that Oakes
at no time prior to Kress' discharge spoke to him about
this letter.
Oakes' contention that Kress granted too many vaca-
tion requests in his department at the same period of time
is also pretextual. In this respect, the evidence estab-
lished that Oakes granted no vacation requests; he
merely forwarded to Oakes those vacations requests sub-
mitted by the employees for Oakes' decision whether
such request be granted.
Oakes' contention that Kress failed to give him a
proper explanation of the reports submitted by Mosi
Chu, causing Oakes to fire Chu, is also clearly pretextual.
In this connection the evidence established that Chu was
a physicist hired by Respondent in 1978 to perform cer-
tain research concerning the development of the densi-
tometer project. Sometime in September 1979, Oakes re-
ceived two written reports prepared by Chu summariz-
ing his research work to date. Oakes, however, was
unable to understand Chu's report and requested that
Kress supply him with a written summary of Chu's work
in "lay language so that he could understand Chu's
progress." Before such report could be compiled by
Kress, however, Oakes issued his memorandum dated
October 9, discontinuing all further research on the den-
sitometer project. On October 31 Oakes, in a letter dis-
missing Chu, enclosed a copy of the October 9 memo-
randum and notified Chu that his services were being
discontinued in view of the October 9 memorandum dis-
continuing further research. On the basis of the above, it
is clear that Chu was discharged solely because of Re-
spondent's decision to discontinue further research on
the densitometer and not because of a failure by Kress to
submit a written report concerning Chu's work. More-
over, Oakes admittedly never spoke to Kress about his
failure to submit such report.
Based on all the above, I conclude that Respondent
discharged Kress: (a) because he failed to dissuade Zuber
472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from contacting the state agencies described above (b)
because he failed to dissuade Russo from sending the
letter to Katy; and (c) because he indicated his intention
to Oakes to support and give testimony on behalf of
Zuber in the event Oakes discharged him for contacting
the above state agencies.
The next issue to be decided is whether such discharge
violates the Act.
The Board in Downslope Industries, 246 NLRB 948
(1979), concluded that the discharge of a supervisor for
his failure to suppress or prevent employees from engag-
ing in their lawful Section 7 activity violates Section
8(a)(1) of the Act. In Downslope, Respondent fired its su-
pervisor, Scarlet, because she had failed to suppress the
employees working under her supervision from engaging
in a concerted work stoppage in order to protest sexual
harassment by another supervisory employee. In the in-
stant case, I have concluded that Respondent discharged
Kress because he had failed to suppress Zuber from
filing a complaint with appropriate state agencies con-
cerning health factors at Respondent's facility and Russo
from sending the letter to Katy Industries which, as set
forth and discussed above, constitutes lawful Section 7
activity by both employees. 17 I therefore conclude that
such discharge violates Section 8(a)(1) of the Act.
Moreover, the Board has also concluded that an em-
ployer violates Section 8(a)(1) by discharging a supervi-
sor for engaging in conduct tended to protect employees
from interference and discrimination prescribed by the
Act. Buddies Super Markets, 223 NLRB 950 (1976); Per-
mian Corp., 189 NLRB 860 (1971); see also the dissenting
opinion of Board Member Murphy in Downslope Indus-
tries, supra at 951. As the Board stated in Buddies Super
Markets, supra, it is a violation of Section 8(a)(1) to dis-
charge a supervisor "where the supervisor assists em-
ployees in proceedings. . . before the Board." The facts
in the instant case establish that during the March 2
meeting in which Oakes indicated that he intended to
discharge Zuber for contacting the regulatory agencies,
Kress stated that it was unlawful to discharge Zuber for
this reason and that he would testify on his behalf in
court if necessary. Although Kress did not specifically
state that such discharge was unlawful within the mean-
ing of the Act and that he would testify on Zuber's
behalf in an NLRB hearing, his broad statement to Oakes
would include by reasonable implication proceedings
within the ambit of the Act. For this additional reason, I
conclude that the discharge of Kress by Respondent vio-
lated Section 8(a)(1) of the Act.
D. Promises of Benefits, Granting of Benefits, and
Warnings Directed to Employees to Induce them to
Refrain from Engaging in Protected Concerted
Activities
The evidence clearly established that Respondent both
promised and granted wage increases and threatened its
employees with unspecified reprisals in order to induce
its employees from engaging in protected concerted ac-
tivities.
17 See also Nevis Industries, 246 NLRB 1053 (1979).
In this respect the evidence established that, on March
8, Peter Oakes met secretly and privately with employee
Halinski and informed him there was going to be "some
trouble" the following day. He told Halinski that he
would be taking on added responsibility and would re-
ceive a raise. Oakes then questioned Halinski if he was
with him and Halinski replied yes. Such statement in
view of the discharges that followed clearly implied that
troublemakers who engage in protected concerted activi-
ties are discharged while those who refrain from engag-
ing in such activities are rewarded with pay raises. Such
sentiments were again expressed in the March 9 notes to
Halinski, Miglionico, and Diaz promising or granting, as
in Halinski's case, a pay raise. These notes set forth that
the employees should keep up the good work and not
allow "the temporary struggle in engineering" and "the
temporary personnel problems in engineering . . . to
bother you." In particular, the letter to Miglionico
stated, "if you could stay clear of the present difficulties
concerning some of the personnel in engineering which
do not affect you and keep up the good work an increase
will be forthcoming."
The evidence further established that after notifying
Kress, Zuber, and Russo of their discharge, Oakes called
Halinski into his office and told Halinski that Kress had
been terminated because he had lacked leadership and
Russo should not have written the letter to Katy Indus-
tries, Oakes later met with Halinski, Miglionico, and
Diaz in the lunchroom and repeated his prior conversa-
tion with Halinski. Such statements clearly convey to
employees that employees who engage in protected con-
certed activity will be discharged.
Accordingly, I conclude that Oakes' oral statements to
Halinski on March 8 and to Halinski, Miglionico, and
Diaz on March 9, coupled with the March 9 letters to
these employees described above and the granting and
promise of raises were intended to and did clearly create
the impression in the minds of the employees that such
raises were conditioned on their not engaging in, or be-
coming involved with, conduct engaged in by Russo and
Zuber, or engaging in similar protected conduct, coupled
with an implied warning of discharge or other reprisals
should the employees engage in such protected activity.
Accordingly, I find that Respondent by Oakes' state-
ments to Halinsld, Miglionico, and Diaz, described above
and through the contents of the March 9 notes received
by the employees with their raise or promise of raise, set
forth and described above, promised and granted to its
employees wage increases to induce them to refrain from
engaging in protected concerted activity and warned and
directed its employees from engaging in protected con-
certed activity in violation of Section 8(a)(1).
Additionally, I conclude that Vice President Egan's
statement to Zuber following the Suffolk Department of
Health inspection, at which admittedly informed Zuber
that he had "opened up a can of worms" by his com-
plaint and then "read the Riot Act to Zuber," followed
by his admonition to Zuber that he should have informed
Oakes or himself of his fears of radioactive exposure
rather than contacting a state agency, constitute a further
OAKES MACHINE CORP. 473
warning to employees to refrain from engaging in pro-
tected concerted activities in violation of Section 8(a)(1).
I further conclude that Oakes' statement to Russo,
made during his discharge interview on March 9, "If
your next employer ever called and asked for a job refer-
ence, I'm gonna send him a copy of this letter (the Katy
letter) to show him what kind of person you're going to
be dealing with," to constitute a threat of blacklisting in
outside employment in violation of Section 8(a)(1) of the
Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent has violated Section 8(a)(1) of the Act
by the following conduct:
(a) Offering, promising, and granting its employees
wage increases and other benefits or improvements in
their working conditions and terms of employment to
induce them to refrain from engaging in protected con-
certed activities for the purpose of mutual aid or protec-
tion.
(b) Warning and directing its employees to refrain
from engaging in concerted activity for the purpose of
mutual aid and protection.
(c) Threatening its employees with blacklisting in out-
side employment because they engaged in concerted ac-
tivity for the purpose of mutual aid and protection.
(d) Discharging its employees James Zuber and Louis
Russo because they engaged in concerted activity for the
purpose of mutual aid or protection.
(e) Discharging its supervisor, Kenneth Kress, because
he failed to dissuade or prevent employees from engag-
ing in concerted activity for their mutual aid or protec-
tion and because he stated his intention to testify in any
legal proceeding arising from Respondent's commission
of unfair labor practices.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act, I shall recommend that it cease and desist from
engaging in such unfair labor practices and take certain
affirmative action provided in the recommended Order
below, necessary to effectuate the policies of the Act.
Respondent will be required to offer Louis Russo,
James Zuber, and Kenneth Kress immediate reinstate-
ment to their former position of employment or, if such
positions no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority or other rights
and privileges. I shall further recommend that Respond-
ent make Russo, Zuber, and Kress whole for any loss of
earning they may have suffered by reason of their unlaw-
ful discharge, with backup to be computed on a quarter-
ly basis, making deductions for interim earnings, with in-
terest to be paid on the amounts owing and to be com-
puted in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
651 (1977).18
[Recommended Order omitted from publication.]
18 See generally Isis Plumbing Co., 139 NLRB 716 (1962).