N.L.R.B. v. Oakes Mach. Corp., Subsidiary of Katy Industries, Inc.
| Citation | 897 F.2d 84 |
| Decision Date | 26 February 1990 |
| Docket Number | 69,Nos. 68,D,s. 68 |
| Parties | 133 L.R.R.M. (BNA) 2753, 58 USLW 2555, 114 Lab.Cas. P 12,014 NATIONAL LABOR RELATIONS BOARD, Petitioner-Cross-Respondent, v. OAKES MACHINE CORPORATION, a Subsidiary of Katy Industries, Incorporated, Respondent, James Zuber, Respondent-Cross-Petitioner, Kenneth Kress and Louis Russo, Intervenors. ockets 89-4052, 89-4604. |
| Court | U.S. Court of Appeals — Second Circuit |
David A. Fleischer, Atty., N.L.R.B., Washington, D.C. (Joseph E. Desio, Acting Gen. Counsel, Paul J. Spielberg, Deputy Asst. Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., of counsel), for petitioner N.L.R.B Bertrand B. Pogrebin, Mineola, N.Y. (Rains & Pogrebin, Richard G. Kass, of counsel), for respondent Oakes Machine Corp.
Amy Gladstein, New York City (Gladstein, Reif & Meginniss, of counsel), for respondent-cross-petitioner James Zuber and intervenors Kenneth Kress and Louis Russo.
Before NEWMAN, PRATT, and MAHONEY, Circuit Judges.
Nearly eleven years ago, in March 1979, respondent Oakes Machine Corporation (Oakes Machine or the company), fired three of its employees--Louis Russo, James Zuber, and Kenneth Kress. This petition to enforce and cross-petition to review the long-delayed board actions on the discharge complaints present one issue with respect to each employee: (1) whether the National Labor Relations Board (NLRB or board) properly regarded as "protected" activity within the meaning of Sec. 7 of the National Labor Relations Act (), 29 U.S.C. Sec. 157, Russo's mailing of a letter complaining in part that the company's president required employees to spend large amounts of time on his personal projects; (2) whether the NLRB's retroactive application to Zuber of its new definition of "concerted" activity was improper on the facts of this case; and (3) whether Kress, who as a statutory "supervisor" is accorded significantly less protection than an "employee" under the NLRA, was unlawfully discharged because he threatened to testify "in court" on behalf of an employee and he failed to exert sufficient supervisory control to prevent employees from participating in concerted protected activities.
For the reasons that follow, we conclude (1) that substantial evidence supports the board's determination that Russo's sending of the letter constituted protected activity within the meaning of Sec. 7 of the NLRA; (2) that retroactive application to Zuber of the board's new, restrictive definition of "concerted" activity was improper on the facts of this case; and (3) that the discharge of Kress, the supervisory employee, was unlawful. We therefore enforce the board's order as to Russo and Kress and deny enforcement as to Zuber.
The NLRB petitions for enforcement of its April 14, 1988, order finding, inter alia, that Oakes Machine violated Sec. 8(a)(1) of the NLRA in its discharge of employees Russo and Zuber. Zuber cross-petitions for review of that portion of the order which found his discharge to be lawful.
The facts of the case, developed at a hearing before an administrative law judge (ALJ) on November 17-21, 1980, are essentially undisputed. Oakes Machine designs, manufactures, and sells sophisticated equipment used in the food, chemical, and foam rubber industries. During the relevant period, the company employed approximately twenty-seven workers. Russo, Zuber, and Kress worked in its engineering department--Russo as a senior draftsman, Zuber as an electronic technician, and Kress as a supervisor and chief engineer. Each was discharged on March 9, 1979.
Russo was fired for having sent to Katy Industries, Inc., Oakes Machine's parent company, a letter criticizing company president, W. Peter Oakes, who had replaced his father as president of the company in 1976. Oakes Machine had a long-standing practice of tying annual pay raises and bonuses to company profits. In early 1978, a number of employees complained to each other about the small bonuses granted for 1977; they concluded that profits were low, in part, because Oakes required employees to spend a large amount of working time on Oakes's personal projects, including repairing his airplane, radio, snowplow, bicycles, lawn furniture, and computers. The employees also criticized Oakes's lack of maturity, his inability to handle the responsibilities of his position, and his attitude toward employees and customers.
Zuber drafted an anonymous letter to Katy Industries reflecting these complaints. The letter reported in part that Oakes had used company personnel and equipment for personal projects:
Since his appointment, [Oakes] has used the Company and its resources solely for his personal gain. He has 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 lawn mower and lawn furniture. This is a matter of record, not rumor. Many parts of this airplane can be seen scattered all over the shop.
Since January, he had concentrated most of his time and part of the Engineering staff's time building a personal computer.
The letter also noted other complaints of employees about Oakes, and suggested that Katy Industries reevaluate Oakes's appointment as president. Russo mailed the unsigned letter to Katy Industries during the summer of 1978.
Katy Industries sent a copy of the letter to Oakes, who told the company vice president, Edward Egan, that he would fire the person who had written the letter. In December 1978 Oakes learned that it was Russo who had sent the letter, and, true to his word, on March 9, 1979, he fired Russo for that action. Oakes also threatened to send copies of the letter to any prospective employers who might request references on Russo.
Zuber and Kress were discharged for their participation in an unrelated incident involving calls to the New York State Nuclear Regulatory Commission and the Suffolk County Health Department by Zuber, who sought to determine the safety of a radioactive component of certain equipment the company was developing. From 1977 to 1979 Oakes Machine had been developing a mechanical device called a densitometer used in the baking industry to ensure uniform density in cake mixes. The densitometer incorporated a radioactive "source" surrounded by a lead shield. The source and shield were encased in a protective metal source holder. In developing the densitometer, Zuber, Russo, Kress, and other employees worked closely with the radioactive source and occasionally moved it from one unit to another.
Zuber first expressed concern about the safety of working with the radioactive source in August or September of 1977, but Egan assured him that the source was safe. On February 28, 1979, after reading safety literature about radioactive sources, Zuber concluded that he had been exposed to an unsafe level of radiation. On March 1, 1979, he told his supervisor, Kress, of his concerns, but Kress stated that the company needed more information because Zuber's material dealt with an unshielded source whereas the company used a shielded source.
Not satisfied, Zuber immediately convinced another employee to stop working near the source because it might be unsafe. He then called the state Nuclear Regulatory Commission and the Suffolk County Health Department. An official from the county health department visited the company that afternoon, called the state agency, determined that the company had violated state nuclear regulations by moving the radioactive source from one unit to another, and stated that the incident would have to be "logged".
The next day, March 2, 1979, Oakes met with Egan and Kress to discuss Zuber's actions. Oakes stated that Zuber was "stupid" to have contacted the health department before talking to Kress and that Zuber would be fired. Kress protested that Zuber had a legal right to contact the department of health and that he, Kress, would testify on Zuber's behalf "in court" if necessary. Oakes closed the discussion by saying he had reported the incident to Katy Industries and that the matter was out of his hands. A week later, on March 9, 1979, Oakes personally fired Russo, Zuber, and Kress for their participation in the above incidents.
On March 12, 1979, Zuber filed a complaint with the Occupational Safety and Health Agency (OSHA) alleging that his discharge violated Sec. 11(c)(1) of the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. Sec. 660(c)(1). Russo and Kress joined in the complaint in protest of their own discharges. On June 26, 1979, Zuber filed a charge with the NLRB, alleging that his discharge for engaging in protected concerted activity violated sections 7 and 8 of the NLRA. Russo and Kress similarly joined in that charge.
Thereafter the NLRB submitted the charge to its Division of Operations Management for coordination with OSHA, and the two agencies determined that the matter would be handled by the NLRB alone. Accordingly, on October 16, 1979, OSHA notified Zuber, Russo, and Kress that it would not pursue the case.
In a decision dated December 18, 1981, the ALJ determined, inter alia, that Oakes Machine had violated Sec. 8(a)(1) of the NLRA in its discharge of each employee. The company appealed, but the board did not file its decision until April 14, 1988, more than six years after the ALJ's decision and eight years after the filing of the charge. In those intervening six years, the board had overruled its prior policies in two relevant respects. First, it had narrowed its definition of "concerted" activity under Sec. 7 of the act. Applying the newer, more stringent definition, the board held that Russo's sending of the letter to Katy Industries was "concerted" but that Zuber's calls to the two agencies were not. It therefore...
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