Piper Realty Co.

National Labor Relations Board - Board Decisions

May 20, 1994

313 N.L.R.B. 1289 (N.L.R.B. 1994)

1289
313 NLRB No. 233
PIPER REALTY CO.
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing the findings.
2 Although the testimony of Kozan, Edenburn, and Brow differ
somewhat from each other, all agree that: (1) Kozan did not swear
at Stone; (2) Stone swore and directed profanities at Kozan; (3)
Stone’s swearing and other intemperate remarks were loud enough
to be heard outside the office; and (4) employees who overheard
Stone’s comments clearly were shocked.
Piper Realty Company and Scott Stone. Case 7–CA–
34377
May 23, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On October 20, 1993, Administrative Law Judge
Robert A. Giannasi issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a brief in support of
the judge’s decision.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings,1 findings, and con-
clusions and to adopt the recommended Order.
In adopting the judge’s decision, however, we rely
solely on his finding that, regardless of whether em-
ployee Scott Stone was engaged in concerted activity,
Stone’s conduct was beyond the Act’s protection.
According to credited testimony, Stone objected to
the Respondent’s new ‘‘supercrew’’ program under
which maintenance employees worked together when
preparing vacant units for rental. When the site man-
ager, Kozan, and supercrew team leader Murany in-
formed Stone of the new program on March 18, 1993,
Stone adamantly opposed it. Stone insisted that he
wanted to work alone as he did before, and questioned
why they were upsetting things and ‘‘messing with’’
his job. Stone argued that a team approach had been
unsuccessful before, and repeated that he wanted to
work alone. Despite Kozan’s explanations about why
the new program was chosen, repeated statements that
the decision had been made, and frequent requests that
Stone give the program a chance, Stone insisted that
he did not think the program would work, and that he
wanted to work alone. In order to end the discussion,
Kozan told Stone to report to the supercrew.
Stone’s vocal opposition did not abate once he was
assigned to the supercrew. Stone vigorously repeated
the same arguments to team leader Murany and the
supercrew, saying that he did not think that the pro-
gram would work, that he wanted to work alone, and
that he did not understand why they were messing with
his job.
Murany informed Kozan that Stone still objected to
the supercrew. Thereafter, Stone visited Kozan’s office
following his March 18 shift and asked Kozan if he
had a problem. Kozan responded that he did not, and
asked whether Stone had a problem. Stone then re-
newed his arguments against the supercrew, saying it
would not work, that he wanted to work alone, and
that he did not know why they were messing with his
job. When Kozan repeated his rationale for adopting
the new program, Stone persisted in objecting to the
supercrew. At some point during the discussion, Stone
stated that other employees also disliked the program.
After Kozan determined that nothing new was being
said, he opened the door to his office, gestured toward
it, and instructed Stone to give the new program a try.
Stone remained seated, and argued more loudly. Ac-
cording to Kozan, who was credited, Stone told him in
a loud and belligerent voice that: (1) he did not treat
the men like men, but like animals; (2) nobody had the
‘‘balls’’ to tell him; (3) Kozan was ‘‘fucking with his
job’’; and (4) a lot of employees thought Kozan was
‘‘a fucking asshole.’’ Kozan instructed Stone to give
the program a try. Kozan also told Stone several times
to leave his office, stating that he was saying nothing
new. When Stone continued arguing and swearing,
Kozan, in order to get Stone out of his office, told him
to take the next day off with pay.
Because the door to Kozan’s office was open for a
portion of the discussion, clerical employees Brow and
Edenburn overheard part of the conversation. Both tes-
tified that they had heard Stone shouting and swearing
at Kozan. Brow said that she heard Stone call Kozan
a ‘‘fucking asshole,’’ tell him that he treated employ-
ees like dirt, and state that Kozan’s claim that his door
was always open was ‘‘bullshit.’’ Brow said that Stone
swore periodically throughout the discussion. Brow
said that, at some point, she moved farther away from
Kozan’s office so that she would not hear the discus-
sion; however, she said that she still heard Stone and
Kozan.
Edenburn, who heard portions of the discussion be-
tween answering phone calls, testified that Stone told
Kozan he had a ‘‘fucking problem’’ because he did not
treat employees like human beings, and that Stone later
repeated that Kozan had a ‘‘fucking problem.’’
Edenburn said that she was shocked by Stone’s com-
ments and surprised that he was given a day off rather
than being immediately fired. Edenburn, like Kozan
and Brow, testified that Kozan did not swear at Stone
during this discussion.2
1290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir.
1965), enfg. 148 NLRB 1379 (1964).
Based on the above conduct, the judge concluded,
and we agree, that Stone’s conduct on March 18 cost
him any protection to which he otherwise might have
been entitled under the Act. Thus, although employees
are permitted some leeway for impulsive behavior
when engaging in concerted activity, this leeway is
balanced against an employer’s right to maintain order
and respect.3 Here, Stone clearly went too far. As
Kozan, Brow, and Edenburn testified, Stone was insub-
ordinate and profane during his meeting with Kozan.
Even if swearing was common in the workplace, what
distinguishes it here is that Stone directed it at a super-
visor, in his office, in the course of repeatedly resisting
a work assignment. Moreover, Stone’s comments were
heated enough to be overheard by Brow and Edenburn,
who clearly were shocked by Stone’s conduct.
Under these circumstances, we adopt the judge’s
finding that Stone’s conduct was outside the protection
of the Act.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dennis Boren, Esq., for the General Counsel.
Hiram S. Grossman, Esq., of Flint, Michigan, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. This
case was tried on August 25 and 26, 1993, in Flint, Michi-
gan. The complaint alleges that Respondent violated Section
8(a)(1) of the Act by discharging employee Scott Stone be-
cause he engaged in concerted protected activity. Respondent
filed an answer denying the essential allegations in the com-
plaint. After the conclusion of the hearing, both parties filed
excellent briefs which I have read and considered.
Based on the entire record, including the testimony of the
witnesses and my observation of their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTIONAL MATTERS
Respondent, a Michigan corporation, is engaged in the
management and rental of apartments, including a complex
known as Sunridge Apartments in Flint, Michigan. During a
representative 1-year period, Respondent derived gross reve-
nues in excess of $500,000 and purchased and received at its
Flint location goods valued in excess of $50,000 from points
outside Michigan. Accordingly, I find that Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Sunrise is a rental community composed of 584 units, in-
cluding 480 apartments in 40 buildings and 104 townhouses.
Respondent employs some 20 to 24 employees at Sunrise.
The onsite manager is George Kozan. Among the employees
at Sunrise are 8 to 10 maintenance employees. This includes
so-called prepping employees who clean, repair, and prepare
vacant apartments before they are rented, painters, and serv-
ice request employees.
The record reveals that Scott Stone, a prepping employee
who was employed since January 7, 1991, was one of a
number of employees who complained about certain work-re-
lated matters, including the lack of paid holidays and health
insurance, as well as use of outside painting contractors.
Stone was one of the employees who raised the subcontract-
ing issue at a December 1992 meeting of employees. There
is no evidence that Respondent harbored any animus against
Stone or any other employee for bringing such matters, some
of which were resolved, to the attention of management. In-
deed, there is testimony that Kozan praised Stone for his role
in the successful effort to secure paid holidays for the em-
ployees.
The record also reveals that, in the course of an annual
evaluation meeting in January 1993, Kozan told Stone that
he was ‘‘sticking’’ his nose in other people’s business around
the office and ‘‘butting in’’ where he did not belong. There
is no evidence that this was a reference to the work-related
complaints mentioned above; in fact, there is other evidence
that Stone was prone to gossiping and spreading gossip. In
any event, the statement was an insignificant part of the
meeting. When Stone asked whether he had to keep his
mouth shut to be a good employee, Kozan replied in the neg-
ative. And Stone’s evaluation was generally satisfactory be-
cause Kozan told Stone to see him again in about 6 months
for his next raise.
In the next few weeks a number of maintenance employ-
ees, including Stone, spoke among themselves about work-
related problems such as employee favoritism and the need
for ordering parts. There seemed nothing unusual about these
discussions, but there was a tentative decision to hold a
meeting about these matters at the home of Tracy Murany,
one of the maintenance employees who lived on the prem-
ises. This meeting was never held either at Murany’s house
or anywhere else. There is nothing in the record to suggest
that Stone, Murany, or anyone else was penalized for any of
these discussions.
In February 1993, Kozan decided to change the way the
prepping employees performed their work. Prior to the
change, the prepping function was performed by one or two
workers and each performed essentially the same type of
work. The change involved the creation of a super crew
which required most or all prepping employees to work as
a group under the direction of a leadman or supervisor.
Kozan cleared the change with his superior and designated
Tracy Murany as the super crew leader.
Over the period of several weeks in late February and
early to mid-March, Kozan added two other employees to the
super crew and, because there was apparently some resist-
ance to the change, secured their agreement to give the new
procedure a chance. Stone, who had, in recent weeks, been
1291PIPER REALTY CO.
1 The above is based on the credited testimony of Kozan and
Murany, who essentially corroborated each other and impressed me
as reliable and candid witnesses. I do not credit Stone, although he
supported much of Kozan’s account of this first of two meetings
they had on March 18, including the fact that Stone expressed a
preference to continue working alone. I specifically reject Stone’s
testimony that he told Kozan that he would give the new procedure
a try; this is inconsistent with his subsequent conduct. As to the sec-
ond meeting, discussed hereafter, Stone’s differences with Kozan
were sharper but no more believable. Kozan’s account of the second
meeting was essentially supported by the wholly reliable testimony
of two office employees who overheard much of what was being
said. Stone’s account of this meeting was particularly vulnerable be-
cause he attempted to show that Kozan, and not he, first displayed
anger and used profanity. This was not only refuted by the other wit-
nesses but Stone’s testimony was contradicted by his own pretrial
statement. In addition, in assessing Stone’s testimony and his de-
meanor, I have no doubt that he was the source of most of the heat
in this second meeting, based in part, perhaps, on resentment that
a fellow employee had been placed in a supervisory position with
authority over him. I detected such resentment in his testimony. In
these circumstances, I cannot accept Stone’s testimony as reliable
where it conflicts with that of Kozan or any other witness.
working alone, was asked to join the super crew in a meeting
with Kozan and Murany in Kozan’s office on March 18,
1993.
At this initial March 18 meeting, Kozan explained the new
procedure and the reasons for it. Stone objected to the new
procedure and his inclusion in the super crew. He stated his
opinion that the new procedure would not work and ex-
pressed his own preference for working alone. In fact, Stone
repeatedly stated his objections to the new procedure, despite
Kozan’s numerous statements that he wanted to give the new
procedure a try. As the General Counsel concedes, Stone was
‘‘vociferous in expressing his concerns.’’ Kozan finally had
to order Stone to leave his office and report to the apartment
where the super crew was working.1
After some delay Stone reported to Tracy Murany for
work with the super crew at the designated apartment. When
he arrived, at about 3:30 pm, the rest of the crew, Randy
Robinson and Randy Worda, as well as Murany, was present.
Murany remained for about 15 minutes, during which time
Stone continued stating his objections to the super crew con-
cept and Murany gave work instructions before leaving.
There is some dispute about what took place in the apartment
at this time. Stone testified that he spoke briefly with Robin-
son alone in the kitchen and that Robinson expressed agree-
ment with him about the unworkability of the super crew
concept. Robinson did not testify, but Worda and Murany,
who did, contradicted Stone on one point and corroborated
him on another. They testified that Stone spoke with Robin-
son and the others in the same room and did not speak with
Robinson in the kitchen; they also testifed that Robinson ex-
pressed his agreement with Stone’s views on the super crew.
In any event, it is clear that Stone repeated his objections to
the super crew concept in the presence of Murany and the
others at this time.
Murany returned to Kozan’s office and told him, in a
closed door meeting that also dealt with other matters, that
Stone was still objecting to the new super crew procedure.
At about 4 p.m., his quitting time, Stone left the apartment
where he was working and returned to the office. He waited
until the Kozan-Murany meeting concluded and entered
Kozan’s office. Stone asked Kozan if he had a problem.
Kozan replied that he did not and asked whether Stone had
one. Stone then repeated his objections to the super crew ar-
rangement and his preference for working alone. He also
mentioned that another employee agreed with his position,
apparently referring to Robinson. Stone raised his voice, and
began shouting and using profanity. Kozan repeatedly told
Stone that he had made up his mind about the new proce-
dure, but Stone kept arguing with him. The meeting finally
concluded when Kozan told Stone to take the following day,
Friday, off, with pay, and to return to work on Monday. As
he left the office, according to Stone, he told Kozan that he,
Kozan, had a problem.
Kozan credibly testified that he gave Stone a day off in
order to get Stone out of his office and to give himself time
to determine what to do about Stone under calmer cir-
cumstances. That evening he decided to fire Stone because
of Stone’s conduct in his office and his continued reluctance
to accept the management decision that Stone was to work
in the super crew. Kozan was also concerned because the
two office employees, both women, had overheard Stone’s ti-
rade and his use of profanity.
On Monday morning, March 22, Kozan notified Stone of
his discharge. He said that Stone was discharged for his in-
subordinate and uncooperative conduct and actions on March
18. Stone again raised his voice, argued and used profanity.
The women office employees also overheard these remarks.
Even when he left Kozan’s office after being told to leave,
Stone lingered outside. He left the premises only after Kozan
threatened to call the police.
B. Discussion and Analysis
It is clear from the evidence that any concerted action un-
dertaken by Stone prior to March 18, 1993, played no role
in his discharge. The General Counsel concedes that the ac-
tivities of March 18 are the ‘‘critical events in question.’’ He
does assert, however, that, in repeatedly arguing against the
imposition of the super crew concept, Stone was speaking for
and on behalf of himself and other employees and that he
was fired for making such concerted complaints to manage-
ment. I disagree.
I do not believe that Stone was raising a group concern
and thus engaging in concerted activity when he repeatedly
complained about participating in the super crew. Although
he went out of his way in some parts of his testimony to em-
phasize the word ‘‘we’’ when he described his objections to
the super crew concept, it is clear that he had not even talked
to anyone about it until after the first meeting. He therefore
could not have been voicing a group concern at that point.
Moreover, Stone admitted telling Kozan that he preferred
working alone. Indeed, even at the second meeting with
Kozan, after he had elicited the support of one fellow em-
ployee, Robinson, Stone remained concerned mostly about
his own situation. Thus, he testified that he wanted to speak
to Kozan again because he was afraid that Murany had told
Kozan that ‘‘I had stated my opinion and how I felt and that
I was unhappy with the new situation and didn’t think it was
safe.’’ (Emphasis added.) Nor was there any evidence that
Robinson, who did not testify, either expressly or impliedly
authorized Stone to speak for him or meant his view that the
super crew concept would not work to be carried by Stone
to management in the manner he did. After all, in an earlier
1292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
meeting with management officials, Robinson had muted his
objections and specifically agreed, unlike Stone, to give the
new concept a chance.
What happened here was that Stone objected to a work as-
signment—his own. This is not a concerted activity. Stone’s
reference to the fact that another employee supported his
view of the work assignment does not transform this individ-
ual gripe into a group concern. The support of another em-
ployee, obtained shortly before the second meeting with
Kozan, was incidental to Stone’s highly personal objection to
the plan, which was essentially the same one he made in the
first meeting when he had no support for his position. In no
sense could Stone’s conduct be termed ‘‘a logical outgrowth
of the concerns expressed by the group.’’ Alchris Corp., 307
NLRB 182 fn. 4 (1991).
However, even if it could be found that Stone was advanc-
ing a group concern in his second meeting with Kozan on
March 18, it is clear that his conduct at that meeting, which
he himself initiated, was so outrageous that it was unpro-
tected. It was for this unprotected conduct that he was fired.
The testimony of the two office employees demonstrates
Stone’s insubordination and use of profanity in the second
meeting with Kozan. The General Counsel asserts that one
of the office employees testified that she overheard only one
use of profanity. But this does not meliorate Stone’s conduct.
Kozan and the other office employee testified to more uses
of profanity, and it is clear that both office employees were
shocked at what they did overhear. Indeed, one testified that
she was surprised that Stone was not fired on the spot but
instead given a day off. Nor was it the use of profanity itself
that rendered Stone’s conduct unprotected. After all, at Sun-
rise, as in many working environments, use of profanity was
not uncommon. What made the situation here different than
normal employment-related banter was that Stone used pro-
fanity toward his superior, in the superior’s office, in the
course of repeatedly objecting to and resisting a work assign-
ment. His comments were heated enough to be overheard by
other employees. This is far more significant than how many
times Stone used profanity.
In reliance on the testimony of office employee Becky
Brow, the General Counsel contends that, in their second
meeting, Kozan mentioned Stone’s complaining to his fellow
employees about the super crew concept. However, the mere
mention of complaints to fellow employees does not mean
that Kozan’s decision to discharge Stone was based on such
complaints. It is clear from the thrust of Kozan’s corrobo-
rated and credible account of the meeting that Kozan’s prob-
lem with Stone was Stone’s complaints to him about the
super crew concept, and, more importantly, the manner of
Stone’s complaints to him. This is also apparent from Brow’s
explanation of her own testimony to the effect that Kozan
objected to Stone’s ‘‘bad attitude.’’
Significantly, Stone himself testified that his parting com-
ment to Kozan, his boss, was that Kozan had a ‘‘problem.’’
Unfortunately for Stone, Kozan’s problem was Stone’s insub-
ordination and unwillingness to accept any kind of authority,
a trait exhibited by Stone both in his dealings with Kozan
and Murany and in his testimony before me. It was reason-
able for Kozan to assume from Stone’s heated and repeated
objections to his work assignment that he would not easily
accept working under Murany and the super crew concept.
An employer does not have to put up with persistent objec-
tions to work assignments, whether individually or group
based, especially where those objections are accompanied by
profanity and verbal attacks on superiors. Kozan was per-
fectly candid in testifying that he could not be perceived to
have backed down and given in to Stone after the latter’s
disrespectful and public tantrums and still retain any sem-
blance of authority. This view was understandable and rea-
sonable in the circumstances. Stone’s insubordination was
unprotected and this is why he was fired. Accordingly, I find
that the General Counsel has failed to show by a preponder-
ance of the evidence that Stone was fired for engaging in
concerted protected activity.
CONCLUSION OF LAW
The Respondent has not violated the Act in any way.
On these findings of fact and conclusion of law and on the
entire record, I issue the following recommended2
ORDER
The complaint is dismissed in its entirety.