Midland-Ross Corp.

National Labor Relations Board - Board Decisions

Jan 24, 1975

216 N.L.R.B. 302 (N.L.R.B. 1975)

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.