Midland-Ross Corp.

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Midland Frame Division, Midland-Ross Corporation and Kenneth Straka. Case 8-CA-8194 January 24, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On October 24, 1974, Administrative Law Judge Abraham H. Mailer issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed a brief in support of the Administra- tive Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. i The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. s The General Counsel contends that Straka's discharge violated Sec. 8(axl) of the Act because it was based on Respondent's belief, albeit mistaken, that Straka was engaging in protected concerted activities, i.e., attempting to enlist the support of other employees to protest Respondent's dress code. Contrary to this contention, the Administrative Law Judge found that Respondent discharged Straka because he advertised to his fellow employees his own open defiance of Respondent's dress code, a matter which Respondent considered disruptive of the work force. While agreeing with the Administrative Law Judge , we find that even if Respondent had discharged Straka for soliciting fellow employees, which the General Counsel concedes was not the situation , Respondent would not have violated Sec. 8(a)(l) of the Act because, as the record shows, Straka's conduct admittedly occurred during working time. Acting Chairman Fanning concurs in the results solely on the ground that Straka was discharged for soliciting other employees on working time and in a working area in a manner disruptive of normal production. DECISION ABRAHAM H . MALLER, Administrative Law Judge: On February 20, 1974, Kenneth Straka filed a charge against Midland-Ross Corporation. Upon said charge, the Region- al Director of Region 8 of the National Labor Relations 216 NLRB No. 56 Board, herein called the Board, on June 26, 1974, issued on behalf of the General Counsel a complaint against Midland Frame Division, Midland-Ross Corporation, herein called the Respondent. Briefly, the complaint alleged that on or about February 20, 1974, the Respond- ent terminated the employment of Kenneth Straka for the reason that he had, or Respondent believed that he had, engaged in protected concerted activity by seeking the mutual aid or protection of fellow employees concerning the Respondent's dress code, in violation of Section 8(axl) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. In its duly filed answer, the Respondent denied any violations of the Act. Pursuant to notice, a hearing was held before me at Cleveland, Ohio, on August 27, 1974 . All parties were present at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs with me. Briefs were filed by the General Counsel and the Respondent on or before October 8, 1974. Upon consideration of the entire record, the briefs, and upon my observation of each of the witnesses I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is now, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Ohio with its principal office located at 55 Public Square, Cleveland, Ohio. Respondent operates a facility at 10615 Madison Avenue, Cleveland, Ohio, the only facility involved herein, where it is engaged in the manufacture, sale, and distribution of heavy vehicle frames . Annually, Respond- ent receives goods and materials at its 10615 Madison Avenue facility valued in excess of $50,000 directly from points located outside the State of Ohio . Accordingly, I find and conclude that the Respondent is, and has been at all times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Board to assert jurisdiction here. II. THE ISSUES 1. Whether Straka sought the aid of other employees in a dispute with the Respondent over the Respondent's application of a dress code. 2. Whether the Respondent discharged Straka because of its belief that Straka was seeking the aid of other employees in his dispute with the Respondent over Respondent's application of a dress code. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Kenneth Straka had been employed by the Respondent since February 1973, as a mail clerk and a cost clerk. Straka was active in the Gay Activist Alliance at Case Western Reserve. Respondent was aware of Straka's MIDLAND FRAME DIV., MIDLAND-ROSS CORP. activity in the Gay Movement. Some time before the events hereinafter detailed, Straka was interviewed by a reporter of the Cleveland Magazine, as a result of which an article appeared in that magazine with a picture of Straka getting a permanent. According to Straka, several of his fellow employees were upset and a lot of them refused to talk to him. However, Respondent's personnel manager sent Straka a letter saying that his outside activities would not affect his employment with the Respondent. Charles Allen, Respondent's manager of industrial relations, admitted that Straka was a good worker. When Straka was hired, he was informed that Respond- ent had an unwritten dress code which required male employees to wear dress slacks and a shirt. On February 18, 1974,1 Straka reported for work wearing trousers made of satin material, which were tight around the hips and genitals, and a pullover shirt with a flowery print design. On the afternoon of that day, Dale Matty, Straka's immediate supervisor, informed Straka that employees of the Respondent should conform to a standard dress code. Matty told Straka that his dress reflected adversely on Matty and handed him a memo addressed to Manager of Industrial Relations Allen, which read as follows: The subject of personal appearance was discussed with Ken Straka today for the second time in 5 months. It has not been acceptable at all times. In an office environment proper dress is conventional attire including dress shirt and slacks for male employees-no other attire is acceptable, (i.e., silk or velour pants, or shirts open to the navel). Ken must conform to proper office attire if he is to continue his employment with the Frame Division. The memo was signed by Dale Matty. Straka was asked to sign it, but refused. On February 19, Straka came to work with glitter on the cuffs of his trousers, as a symbol of protest "to show that even without wearing silk, velvet, or velour, there are things that could be worn that would be within their bounds. They [Respondent] would have to make their bounds very narrow or else they would have to agree verbally that I would dress respectfully." On that same day, Straka went to the personnel office and discussed Supervisor Matty's memo with Wendell Turner, the third in command in Respondent's personnel department. Later that day, Straka met with Supervisor Matty and Manager of Industrial Relations Allen in Allen's office and again objected to the limitations Supervisor Matty had placed on his mode of dress. At this meeting, Allen supported Supervisor Matty's position regarding the dress code and indicated that Matty's memo would be made part of Straka's personnel file. On the morning of February 20, Straka drafted a memo to Supervisor Matty and Manager of Industrial Relations Allen and placed copies of this memo in the mailboxes of the cost department and the personnel department. The memo stated: 303 This memo is to inform you that I am filing suit against the Company for action I feel are [sic] in violation of my civil rights. I have spoken with Dan Monley of the E.E.O.C., and he concurs with my belief that your actions are discriminatory, therefore illegal. The memo was signed by Straka. At approximately 8:15 a.m., Supervisor Matty went to Allen's office and showed him Straka's memo. It was part of Straka's job to sort the mail each morning, place it in the various mailboxes and distribute it throughout the plant. On the morning of February 20, Straka spent approximately 30 minutes in the mailroom performing his duties. During that time, he spoke with employees Shirley Williams, Helen Dudas, and June Deutsch. According to Straka, Williams asked him if he was going to be allowed to dress the way he pleased. Straka answered in the negative and told her that the Respondent was going to enforce a dress code and that he had planned to file suit against the Company. He showed Williams a copy of his memo to the Company.2 Straka also showed Helen Dudas a copy of the memo and told her that the Respondent was going to enforce a dress code against him. Dudas testified that Straka showed her a memo and said that he was suing the Company for $100,000. She further testified that Straka told her he was doing it "because they are discriminating against me because of my dress." He also told her that he expected to be fired. Dudas urged him to comply with the dress code. Dudas did not speak with anyone about her conversation with Straka until after Straka had been fired. Straka also testified that he showed June Deutsch a copy of the memo and told her about the dress code. Deutsch testified that Straka told her he was suing the Respondent because they wouldn't let him wear silk or velvet clothing. She testified that Straka asked her if she had seen an article written by him and went on to tell her some of the background of his problems with the Respondent. Accord- ing to Deutsch, Straka compared her with a former employee named Sally who had accompanied him to Gay bars in the past. In this conversation, Straka explained that those bars would not be quite like the ones that Deutsch was used to going to, that he had commented to other people that he respected Deutsch because she was broadminded, openminded, and had a lot of spunk. According to Deutsch, she broke off the conversation, telling Straka that she did not have time to discuss her views and had to go back to her job. Deutsch testified that she was extremely upset by the conversation because she "felt that his wording made me feel that he was inviting me to go to Gay bars like Sally went to Gay bars." On rebuttal, Straka testified that much of this conversation took place on February 18, rather than on February 20; that on February 20, he did not mention the article he had written and did not recall mentioning Sally's accompanying him to Gay bars. Straka also denied inviting Deutsch to accompany him to any bars, stating that "the invitation was really reading into my statements." i Unless otherwise indicated, all events detailed herein occurred during 2 Williams did not testify. 1974. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Deutsch reported her conversation with Straka to Personnel Manager Robert Helton . She testified: I told him that I was very upset; that I didn't [think] I had to be subjected to that kind of conversation because I had to use the Xerox machine . I was upset because I felt that, number one , Ken was airing his views and gripes about the Company to me. I felt that was a personal matter and that was his business if that was what he wanted to do, but I shouldn't have to listen to it, and I was extremely upset because I felt that his wording made me feel that he was inviting me to go to Gay bars like Sally went to Gay bars, so Bob said he understood how I felt. Personnel Manager Helton corroborated Deutsch's testi- mony in this regard. During the morning of February 20, Straka was called to the office of Manager of Industrial Relations Allen. Present also were Personnel Manager Helton and Supervi- sor Matty. Allen referred to Straka's memo and told him that it was not necessary for him to inform the Company that he was filing a suit. Allen also told him that he was not being discharged for filing the EEOC suit . According to Straka, Allen then said : "We are discharging you for soliciting the aid of other employees about your problems and letting them know what has been transpiring between us." Allen, according to Straka, "went on to say that trying to enlist their aid was conduct unacceptable in this matter of dress code."3 Allen then asked Straka if he had talked to other employees about the dress code problem , and Straka replied that he had talked with other people about it, "but I never tried to enlist their aid." Matty, Helton, and Allen all testified at the hearing. Their testimony is in conflict with that of Straka, and in some respects appears to be mutually conflicting. Accord- ing to Matty, Allen told Straka that he was discharged "for disruption of the work force." Matty believed that Allen used the word "soliciting," but did not tell Straka he was discharged for soliciting other employees in order to gain sympathy for himself. However, in his pretrial affidavit given to a Board investigator, Matty said: To the best of my recollection it was more along the line of him soliciting other employees in order to gain sympathy for himself by openly airing his complaint to people whether they were interested or not. . . . We felt such actions were an attempt to undermine us, by his remarks about the Company, and about how we were trying to limit him, and this disturbed the employees. We felt that if such actions by Ken were allowed to continue the situation would just deterio- rate. When I say "undermine," I mean he reportedly was telling everyone that he just wasn't going to comply with our request that his dress conform within an acceptable range. On redirect examination, counsel for the Respondent referred Matty to his statement in his pretrial affidavit 3 Despite this, Straka testified on cross-examination that he felt sure he was fired because he had sent the memo stating that he was filing the EEOC about Straka's "soliciting other employees in order to gain sympathy for himself' and was asked: Q. Was that sympathy for his dress style? A. No. Q. What was it for? A. I would say sympathy for himself as an individual. Q. It had nothing to do with his dress style? A. No. Personnel Manager Helton testified that following his conversation with Deutsch, he went into Allen's office, "and told him that we had an employee that came down and complained to me that Ken Straka was using the mailroom as a forum to complain about his treatment by the Company in regards to the way he dressed, and that the girl felt that she was being propositioned by Ken Straka to attend bars that he frequented." Helton and Allen then discussed what action they were going to take, and Helton said: "When we are getting disruptive feedback from employees, I feel this is the straw that breaks the camel's back. How much more can we possibly condone from Ken Straka?" They thereupon agreed to terminate Straka's employment. Helton testified further that concerted activi- ty on the part of Straka did not come to his attention, nor was it considered. As to the conference during which Straka was discharged, Helton testified that Straka admitted that he had talked to some employees, and at that point Allen told Straka that he felt that such actions were disruptive to the work force and that this was the reason he was being terminated and not because of his dress. He testified that he did not recall Allen's telling Straka that he was being discharged for his attempt to gain sympathy from people by openly airing his complaint to people whether they were interested or not. In his pretrial affidavit given to a Board investigator, Helton said: "It was our opinion that it was not right for Ken to use the mailroom as his forum to berate the Company and upset the other employees." Manager of Industrial Relations Allen testified that on February 19, in discussing Matty's memo with Straka, he told Straka: "Ken, when you get up in the morning, just recognize you're going to work and try to dress in a fashion suitable for what you are going to do." Straka replied that he was a protected group and quite frankly he felt that he could wear whatever he wanted to. With regard to his conversation with Straka on February 20, when he discharged Straka, he testified : "I told him he was being discharged for his disruptive-for being a disruptive influence or disrupting employees or words to that effect." He testified further that he did not recall saying anything to Straka about soliciting the sympathy or assistance of other employees; that he knew better than to say anything like that; that concerted action, i.e., Straka's action in trying to get other employees to aid and assist him in getting the dress code changed did not in any way come into the conversation or was ever considered in determin- ing to discharge Straka. suit. MIDLAND FRAME DIV., MIDLAND-ROSS CORP. 305 B. Conclusions It is clear from the record that Straka was not engaged in concerted activity. He was not seeking the aid of other employees in his refusal to abide by the Respondent's dress code. In his testimony, Straka admitted as much. And the General Counsel, in his brief, admits the same.4 Rather, Straka was engaged in a single-handed confrontation with the Respondent concerning the dress code. In his conversa- tions with Williams, Dudas, and Deutsch, Straka was giving publicity to his confrontation with the Respondent, emphasizing his intention to sue the Respondent . It is well settled that the communication of complaints to other employees, which does not look forward to group action is merely "griping." Mushroom Transportation Company v. N.L.R.B., 330 F.2d 683, 685 (C.A. 3, 1964); Indiana Gear Works v. N. L. R. B., 371 F.2d 273, 276-277 (C.A. 7, 1967); N. L. R. B. v. Office Towel Supply Co., 201 F.2d 838, 841 (C.A. 2, 1953); Union Carbide Corporation, 171 NLRB 1651, 1654 (1968). In the instant case, Straka's griping was of a virulent character, viz, his announced intention to continue his open defiance of the dress code, coupled with his stated intention of suing the Respondent. As indicated above, the General Counsel concedes that Straka was not engaged in concerted activity. However, the General Counsel contends that Respondent was unaware of this and discharged Straka for the reason that it believed he was seeking the aid of his fellow employees regarding the dress code dispute. A review of the record compels me to reject this contention. It is clear that Straka's philosophy and life style were not well received by his fellow employees, and this was well known to the Respondent. Witness the fact that some of them refused to talk to him after the appearance of an article in the Cleveland Magazine concerning Straka, leading to the personnel manager's writing Straka that his outside activities would not affect his employment with the Respondent. The Respondent was also aware of the fact that Deutsch was highly incensed and upset by Straka's conversation with her on February 20-a conversation which she interpreted as an attempt to proposition her to accompany him to Gay bars. In the light of these occurrences, it is inconceivable that Respondent believed that Straka was attempting to secure the aid of his fellow employees concerning the dress code-a matter which was of no concern to them and as to which they had absolutely no sympathy. The General Counsel relies on the testimony of Straka to the effect that when he was discharged Manager of Industrial Relations Allen told him that he was being discharged "for soliciting the aid of other employees about your problems" and that "trying to enlist their aid was conduct unacceptable in this matter of dress code." The General Counsel argues that Straka's testimony should be credited because of the inconsistencies in the testimony of Allen, Helton, and Matty and because of admissions that Helton and Matty made in their pretrial affidavits. The argument has a surface appeal which evaporates upon analysis. It is true, as the General Counsel points out, that Matty testified that he believed that Allen at the termination conference used the word "soliciting," and in his pretrial affidavit stated that "it was more along the line of him soliciting other employees in order to gain sympathy for himself by openly airing his complaint to people whether they were interested or not." However, as previously noted, Matty's pretrial affidavit continues: We felt such actions were an attempt to undermine us, by his remarks about the Company, and about how we were trying to limit him, and this disturbed the employees. We felt that if such actions by Ken were allowed to continue the situation would just deterio- rate. When I say "undermine," I mean he reportedly was telling everyone that he just wasn't going to comply with our request that his dress conform within an acceptable range. It is clear from the foregoing that the Respondent did not believe that Straka was attempting to secure the aid of his fellow employees regarding the dress code, but, on the contrary, was concerned by the fact that Straka's state- ments to other employees that he would refuse to abide by the dress code was disturbing to the other employees and created a situation in which Straka was openly flouting the Respondent's rules. The General Counsel argues that it is clear from Helton's pretrial affidavit also that Straka was discharged for discussing his grievance about Respondent's dress code with his fellow employees and attempting to involve them in his dispute with the Respondent. In support, the General Counsel relies on the following statements from Helton's pretrial affidavit: It was our opinion that it was not right for Ken to use the mailroom as his forum to berate the company, and upset the other employees. Chuck [Allen] did the talking and he told Ken that he had received a copy of his memo about filing charges but that it hadn't been necessary because EEOC would have notified us any way. He then asked Ken if he had been talking to employees down by the Xerox machine about the problems he had with the company. (I understood him to be referring to the matters of clothing which had been discussed the previous days between them.) Ken admitted that he had talked to some employees. Chuck then told Ken he thought such actions were disruptive to the work force, and that this was the reason he was being terminated, and not because of his dress. Properly analyzed, the foregoing statements in Helton's pretrial affidavit actually corroborate the statements in Matty's pretrial affidavit that Allen told Straka that he felt that his actions were disruptive to the work force and that this was the reason he was being terminated. Helton testified that prior to the termination conference, he had told Allen that they were getting disruptive feedback from employees and that this was the straw that 4 Resp. br. p. 9 . "In point of fact, Straka was not seeking anyone's aid." 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD breaks the camel's back. He testified further that he did not recall Allen's telling Straka that he was being discharged for his attempt to gain sympathy from people by openly airing his complaint to people whether they were interested or not. I do not consider Helton's pretrial affidavit as being inconsistent with his testimony. Neither Helton's pretrial affidavit, nor his testimony, corroborates in any way Straka's testimony that he was told he was being discharged for seeking the aid of other employees. Nor does either indicate in any way that the Respondent entertained the mistaken belief that Straka was engaged in seeking the aid of other employees in his dispute with the Respondent over the dress code. Allen's testimony is directly contradictory to that of Straka. He testified that he did not recall saying anything to Straka about soliciting the sympathy or assistance of other employees ; that he knew better than to say anything like that : "I told him he was being discharged for his disruptive-for being a disruptive influence or disrupting employees or words to that effect." The foregoing analysis of the testimony of Matty, Helton, and Allen demonstrates agreement on one essen- tial point: That Straka's conversations with employees, stating his open defiance to the Respondent on the matter of the dress code was a disruptive influence and that Straka was discharged for that action. While there are minor differences in the testimony of each of these witnesses and in the pretrial affidavits of Matty and Helton, such differences do not impel me to discredit their testimony. Rather, such differences indicate that each witness was 5 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National LabQr Relations Board, the findings, conclusions, and recommendations , and recommended Order herein shall, testifying as to his own recollection of the incident, and, if anything, they indicate that the testimony of these witnesses and the statements made in their pretrial affidavits were not rehearsed. In sum, I credit the testimony of Matty, Helton, and Allen, and I do not credit the testimony of Straka as to what was said to him as the reason for his discharge. I find that Straka was discharged because he advertised to his fellow employees his open defiance of the Respond- ent with regard to its dress code, a matter which the Respondent considered disruptive of the work force. I further find that the Respondent did not discharge Straka in the mistaken belief that he was seeking the aid of other employees in this matter. Accordingly, I recommend that the complaint herein be dismissed in its entirety. CONCLUSIONS OF LAW 1. Midland Frame Division, Midland-Ross Corpora- tion is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The evidence does not show that the Respondent violated Section 8(axl) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. as provided in Sec 102 .48 of the Rules and Regulations, be adopted by the Board and constitute its findings , conclusions, and Order and all objections thereto shall be deemed waived for all purposes.