Katy Industries, Inc.

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).