298 N.L.R.B. 752 (N.L.R.B. 1990)

Katy Industries, Inc.

National Labor Relations Board - Board DecisionsJun 11, 1990

298 N.L.R.B. 752 (N.L.R.B. 1990)

752 OAKES MACHINE CORP. Oakes Machine Corporation , a subsidiary of Katy Industries , Inc. and Kenneth Kress, James Zuber , and Louis Russo. Case 29-CA-7287 June 11, 1990 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On April 14, 1988, the National Labor Relations Board issued its Decision and Order (288 NLRB 456) in the above-entitled proceeding in which the Board, inter alia, reversed the administrative law judge's finding that the Respondent violated Sec- tion 8(a)(1) of the National Labor Relations Act by discharging James Zuber on March 9, 1979, for filing a complaint about unsafe working conditions with a state agency. The judge had found, based on Alleluia Cushion Co.,' that Zuber's individual action was implicitly concerted and, therefore, pro- tected activity. The Board reversed and dismissed the unlawful discharge finding as to Zuber on the basis of retroactive application of its holding, in Meyers 12 and Meyers II, 3 that the act of an indi- vidual, if not done in concert with other employ- ees, is not "concerted" and therefore not protected within the meaning of Section 7 of the Act. Thereafter, the General Counsel petitioned the United States Court of Appeals for the Second Cir- cuit for enforcement, and Zuber cross-petitioned for review, of the Board's Decision and Order. On March 23, 1990, the court granted enforcement of the Board's Order in part, but refused to affirm the Board's dismissal of the Zuber discharge allegation. The court concluded that the Board's retroactive application of the Meyers rule is inappropriate in the circumstances of this case and that the issue should have been decided under Alleluia Cushion, supra. Accordingly, the court entered an order re- manding the case to the Board for appropriate revi- sions of the order and notice within 90 days of the court's order of March 23, 1990. The Board has delegated its authority in this pro- ceeding to a three-member panel.4 The Board has reviewed the order in light of the court's remand and accepts the court's opinion as the law of this case. Accordingly, we enter the fol- lowing amended Order. 1 221 NLRB 999 (1975) 2 268 NLRB 493 (1984), remanded sub nom Prill v NLRB, 755 F.2d 941 (D C Cir 1985) 3 281 NLRB 882 (1986), affd sub nom Prill v NLRB, 835 F 2d 1481 (D C Cir 1987) cert denied 487 Us 1205 (1988) 4 Member Devaney did not participate in the Board's underlying deci- sion ORDER The National Labor Relations Board adopts its Order in 288 NLRB 456, as modified below, and orders that the Respondent, Oakes Machine Corpo- ration, a subsidiary of Katy Industries, Inc., Islip, New York, its officers, agents, successors, and' as- signs, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). "(a) Offer James Zuber, Louis Russo, and Ken- neth Kress immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privi- leges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered by them as a result of the discrimination against them, in the manner set forth in the remedy section of the Decision and Order in 288 NLRB 456." 2. Substitute the following for paragraph 2(b). "(b) Remove from its files any reference to the discharges of James Zuber, Louis Russo, and Ken- neth Kress on March 9, 1979, and advise them in writing that this has been done, and that no evi- dence of their unlawful discharges will be used as a basis for future personnel action against them in any way." 3. Substitute the attached notice for that in 288 NLRB 456. 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- 298 NLRB No. 105 OAKES MACHINE CORP. 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 James Zuber, Louis Russo, and Kenneth Kress immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- 753 dice to their seniority or any other rights or privi- leges previously 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 James Zuber, 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.