El Gran Combo

EL GRAN COMBO 1115 El Gran Combo de Puerto Rico, d/b/a El Gran Combo and Jose Luis Duchesne. Case 24-CA- 4279 20 July 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 24 October 1980 Administrative Law Judge Walter H. Maloney Jr., issued the attached deci- sion. The General Counsel filed exceptions and a supporting 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 brief and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The judge found that employees Jose Luis Du- chesne and Mike Ramos were not engaged in pro- tected concerted activity when they protested the amount of compensation each was to receive from the proceeds of the sale of "Aqui No Se Sienta Nadie," the latest album recorded by the Respond- ent. He therefore concluded that the Respondent did not violate Section 8(a)(1) of the Act when it discharged Duchesne and Ramos on 27 December 1979. The General Counsel excepts to the judge's findings that neither Duchesne nor Ramos was en- gaged in protected concerted activity. For the rea- sons set forth below, we agree with the General Counsel and find that both discharges were unlaw- ful. The Respondent, El Gran Combo, is an orches- tra specializing in performing Latin music in musi- cal engagements throughout Puerto Rico, the con- tinental United States, and Central America. Founded in 1962 by Rafael Ithier, the Respondent is composed of 13 musicians. Ithier is the Respond- ent's director, musical arranger, and business affairs manager. He hires and fires band members and de- termines all other terms and conditions of employ- ment. When the Respondent embarked upon the re- cording of music in 1972, several members of the band were requested to make contributions to fi- nance the effort, but were spared this burden when one of the band members mortgaged his house in order to provide money for recording expenses.' 1. These funds were reimbursed by hiller with the proceeds of the group's first album. Band members received nothing for the recordings nor were they paid for the rehearsal time or time spent in the studio in making records. Income from the albums was, however, used for travel expenses, uniforms, and other expenses. Sales of El Gran Combo's first 11 albums, distributed under the EGC label, were not successful, but their distribu- tion was of promotional value to the combo. When it appeared that El Gran Combo's 12th album, which was taped in Puerto Rico during May and June 1979, 2 might generate significant revenue, Ithier investigated the possibility of hiring an agent to distribute the recording. Ralph Carta- gena, the owner of Rico Records Distributors, Inc. of New York City, made an offer on behalf of Rico Records and also asked Ithier that he be allowed to meet the best offer Ithier might receive. Ithier indi- cated he would take the matter up with the combo and thereafter presented Cartagena's proposal to the members during a nightclub rehearsal in Aguas Buenas. Specifically, Ithier told the members that Cartagena had offered to buy the record from El Gran Combo for $1000 per member and asked those who agreed to the proposal to raise their hands. Everyone except Duchesne, the first saxa- phone player, raised his hand. Duchesne told Ithier he thought that the record was worth more than $1000 per member and also indicated that he thought he himself was worth more than $1000.3 Ithier became upset, and said, "Duchesne, you have a very short time left working with me." Ithier asked Duchesne ,why he objected to the pro- posal. Duchesne replied that Ithier could get $30,000 elsewhere in South America and $50,000 in Puerto Rico and the continental United States. Du- chesne did not reply when Ithier asked how much he thought the band should receive, but kept insist- ing that the record was worth more. Ithier told Duchesne he was very greedy. At the end of a tour in the continental United States and prior to the signing of any contract, the combo members met with Cartagena in his New York office to discuss his offer. All were present except Ramos, a dancer in nightclub engagements with the combo,4 who had not participated in the recording. Cartagena asked whether anyone had any objection to the $1000 per man offer. There were no objections from any member, including Duchesne. Shortly thereafter, El Gran Combo, acting through Ithier as director and leader, executed a 2 All dates are in 1979, unless otherwise mdicated. 3 Fellow combo member Carlos Aponte testified that Duchesne's "comment was made in a way of asking support." 4 Ramos also sang in the chorus and, on occasion, played a small wind instrument called a quiro. 284 'NLRB No. 112 1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD contract with Cartagena, which gave the combo $16,000 for the album in question, and Cartagena the exclusive rights to distribute it. 5 The contract provided for additional compensation in the event the album sold more than $35,000 worth of copies. In his capacity as director and leader of the combo, Ithier determined that with the exception of Rainos, each member would receive $1000 while Ithier would receive $5000 for his efforts as pro- ducer, mixer, and director. The album was released to the general public in October 1979, and Cartagena thereafter paid each member the $1000. Sometime later, Cartagena mailed an additional check in the amount of $650 directly to each member of the combo, except for Ramos. In late November, Ithier interrupted a rehearsal in New York to say that he was upset with Du- chesne because of the latter's opposition to the business arrangement which had been concluded. Duchesne replied that since most of the combo fa- vored the deal, Ithier could do as he wanted, but reiterated the opposition which he earlier voiced in Puerto Rico. Ithier also stated that Ramos, who was not present due to illness, would not receive any proceeds from the album. Following this meeting, Duchesne visited Ramos in the latter's hotel room, informed him that Ithier had no intention of paying him, and suggested that he speak to Ithier. Ramos instead raised the subject with combo member Tati Maldonaldo, who han- dled various administrative matters for Ithier, in- cluding payments to combo members. Ramos stated that he was not happy with the arrangement and argued that because he was a member of the combo, he expected a share of the proceeds just as he had received a share of what the combo made at dances and nightclub appearances. Maldonaldo said that he had nothing to do with Ramos' com- plaint and suggested that Ramos speak directly to Ithier. Ramos also attempted to enlist the support of other combo members. He testified that he spoke with almost all the combo members, but they were afraid of being discharged if they became in- volved. As an example of his efforts to solicit sup- port, Ramos related his conversations with Fanny Cebalios, the trombone player, and Fernando, the bass player. Ithier testified that he heard rumors that Du- chesne visited Ramos and also that Ramos and Du- chesne had made comments to other members of the group that he was stealing their money. 8 Band 5 The album consisted of an LP recording containing at least eight numbers. 6 The General Counsel notes that Ithier, in his pretrial affidavit and at the hearing, denied knowledge of any alleged comments made by Du- member Carlos Aponte testified that Duchesne talked to him about the fact that he "was not in agreement with the $1000 and he was not going to cash the check" he received from the album's pro- ceeds. Aponte also testified that Duchesne told him he did not trust Ithier and that Ithier was stealing money from the band. Ithier admitted that before he discharged Duchesne he learned from band members Percy and Maldonaldo that Duchesne was making comments behind his back that he was not in agreement with the business and that he was not going to cash the check which represented his share of the proceeds of the record sale.7 On 27 December while El Gran Combo was on vacation, Ithier wrote Duchesne and Ramos identi- cal letters simply stating that he was serving them with a 2-week notice of discharge. Thereafter, the two filed complaints with the Federation of Musi- cians of Puerto Rico, AFL-CI0, 8 the bylaws of which require a 2-week notice of discharge, as well as service of notice while employees are actually working. The only adjustment made as a result of these complaints was to extend their termination date by a few days. Ithier testified that he was dissatisfied with Ramos' history of failing to attend rehearsals and that Duchesne had been "a problem since the be- ginning" of his employment with El Gran Combo some 10 years prior to his discharge. Ithier admit- ted, however, that neither man had been disci- plined for those shortcomings. At the outset, we disagree with the judge's find- ing that the proceeds to combo members from "Aqui No Se Sienta Nadie" were more in the nature of partnership shares in a joint venture than wages derived from their status as employees. This fmding, founded in part on the implication that El Gran Combo is a joint venture, runs contrary to the record facts. Although El Gran Combo is an unincorporated association which early in its exist- chesne or Ramos regarding his stealing. The General Counsel asserts that such alleged comments could not, therefore, have had any bearing on Ithier's decision to discharge them. However, Miler, while consistent in his denial that Duchesne and Ramos "accused" him of stealing, did testi- fy that the two had "made comments" to the effect that Mier was trying to steal from them, and that this was a basis for their discharges. We therefore affirm the judge's findings that Duchesne and Samoa told, other employees that they thought Ithier was "stealing" money from the band and that Mier had knowledge of these comments. We also find that the comments by Duehesne and Ramos that Ithier was "stealing" from the combo were part and parcel of their respective expressions of dissatisfaction with the amount and manner of compensa- tion for "Aqui No Se Sienta Nadie." Viewed in that context, we con- clude that the term "stealing" was used by Duchesne and Ramos , in the figurative or colloquial, rather than literal sense, and that Mier and other combo members so understood its usage. 7 On advice of counsel, Duchesne, at the time of the hearing, had yet to cash either the initial check for $1000 from Cartagena or the supple- mental check which he later received. 8 Mier and all of the El Gran Combo are members of this union. EL GRAN COMBO 1117 ence sought financial assistance from members in order to embark on its recording endeavors, there is no evidence that El Gran Combo at any other time used the personal funds of combo members to satisfy its financial obligations. Instead, the facts show that El Gran Combo operates on money gen- erated by its recordings and concerts. Further, it is clear that at all times relevant Ithier, as the combo's director and business manager, retained total control over its financial affairs. Thus, it was Mier who arranged for the sale of "Aqui No Se Sienta Nadie" and signed the contract with Carta- gena on behalf of El Gran Combo. Ithier's discus- sion with combo members of his oral agreement with Cartagena and his solicitation of their views does not, standing alone, render El Gran Combo a joint venture as suggested by the judge. Moreover, while the actual contract with Cartagena provides a fee of $16,000 to El Gran Combo, Ithier reserved for himself the decision on how the album's pro- ceeds were to be divided, and in the exercise of this discretion chose to reserve $5000 for his own efforts, to give each member who participated in the recording $1000, and to exclude Ramos from the proceeds entirely. He also decided to discharge Duschesne and Ramos. Thus, Ithier's actions belie a finding that El Gran Combo operated as a joint venture either in whole or in part. We therefore find that the payments to combo members from the proceeds of "Aqui No Se Sienta Nadie" were wages derived from the status of combo members as employees. We turn next to the question whether Duchesne and Ramos were engaged in protected concerted activity. Immediately upon Ithier's announcement of his arrangements with Cartagena, Duchesne as- serted in an appeal to the entire combo that the re- cording was being sold for too little and that the amount each member would receive from the album's proceeds was inadequate. Indeed, Du- chesne persisted in his assertion that Ithier under- priced the recording even after Ithier became upset and told Duchesne he had a very short time left working for him. Subsequently, Duchesne contin- ued to express his dissatisfaction with Ithier's han- dling of the album's sale to at least three other combo, members, besides Ramos, and told at least one that as a protest gesture he would not cash checks received from the album's proceeds. Final- ly, when Ithier interrupted the November rehearsal to state that he was upset with Duchesne's opposi- tion to the business arrangement, Duchesne simply stated he held to his earlier view, but that Ithier could do as he pleased because most of the combo favored the deal. Regarding Ramos, the facts show that, after discussing his situation with Duchesne, he attempted to solicit the support of other combo members. Like Duchesne, he too was not success- ful. Recently, in Meyers Industries (Meyers II), 281 NLRB 882, 885 (1986), 9 the Board reiterated the definition of concerted activity as encompassing "those circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of manage- ment." The Board also noted its approval of the Third Circuit's comments in Mushroom Transporta- tion Co. v. NLRB, 330 F.2d 683, 685 (1963) that [A] conversation may constitute a concerted activity although it involves only a speaker and a listener, but to qualify as such, it must appear at the very least that it was engaged in with the object of initiating or inducing or pre- paring for group action or that it had some re- lation to group action in the interest of the em- ployees. With these principles in mind, we find that Du- chesne's and Ramos' repeated attempts to enlist the support of the other combo members to protest a condition of employment, i.e., wages, constituted protected concerted activity. Their inability to sway their coworkers does not change the concert- ed nature of their activity. 10 Such activity, while involving only a speaker and a listener is concerted when, as is the case here, "it was engaged in with the object of initiating or inducing or preparing for group action." I Further, it is immaterial in assess- ing the concertedness of the two employees' com- plaints that each may have been motivated by dif- ferent reasons." See Hintze Contracting Co., 236 NLRB 45, 48 (1978). Nor does the fact that the only combo member to be an immediate or direct beneficiary of Ramos' complaint was Ramos him- self detract from the concerted nature of his solici- tation of the other combo members.13 Having found that Duchesne and Ramos were engaged in protected concerted activity in their wage protests, we further find that they were dis- 9 Member Johansen, who did not participate m Meyers, supra, agrees that, at the least, the Meyers definition of concerted activity is satisfied here, as explained below. 1° Cf. Comet Fast Freight, 262 NLRB 430 (1982). In that case, the Board did not find concertedness where the coworkers of the discharged employee did not share his safety complaints about his truck. However, unlike the situation here, the employee in Comet was not fired for any solicitation of his coworkers to join in the safety complaints. 11 Mushroom Transportation Co. v. NLRB, supra, 330 F.2d at 685. 12 At the hearing, Ramos was asked, "were you and Duchesne fighting for your rights, or his rights, or his rights and your rights, individually or jointly?" Ramos replied, "He [Duchesne] was fighting his and I was fighting mine." la NLRB v. Weingarten, Inc., 420 U.S. 251, 260 (1975); NLRB v. Peter Collier Kohler Swiss Chocolates Co„ 130 F.2d 503, 505-506 (2d Or. 1942). 1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD charged because of that activity. Thus, on Du- chesne's initial objection to the price obtained by the Respondent for the sale of the recording, Ithier warned Duchesne that his continued employment with El Gran Combo would not be for long. Then he later openly stated to the combo that he was upset by Duchesne's opposition to his business ar- rangement. He acknowledged in his testimony that he knew that Duchesne had counseled Ramos on how to advance the latter's claim, that both Du- chesne and Ramos had gone to fellow combo members with their concerns regarding the disburs- al of the album's proceeds, and that Duchesne had not cashed the checks which he received as com- pensation for the album. Finally, and most signifi- cantly, Ithier admitted that it was the dissension re- sulting from these acts which caused him to dis- charge both Duchesne and Ramos." Accordingly, we find that Duchesne and Ramos were unlawfully terminated for engaging in protected concerted ac- tivity in violation of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Respondent, El Gran Combo de Puerto Rico, d/b/a El Gran Combo, at all times material has been and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Jose Luis Duchesne and Mike Ramos for engaging in protected concerted activi- ties the Respondent engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order the Respondent to cease and desist and take certain af- firmative actions designed to effectuate the policies of the Act. We shall order the Respondent to offer Du- chesne and Ramos immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privi- leges previously enjoyed, and to make them whole for any loss of earnings and benefits in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). 14 As noted above, hider admitted that his other asserted sources of dissatisfaction with Ramos and Duchesne were not the basis of discipline against them. ORDER The National Labor Relations Board orders that the Respondent, El Gran Combo de Puerto Rico, d/b/a El Gran Combo, Bayamon, Puerto Rico, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging employees because they engaged in protected concerted activities for their mutual aid or protection. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 Jose Duchesne and Mike Ramos 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 this Decision and Order. (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used 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 Bayamon, Puerto Rico, copies of the attached notice marked "Appendix."" Copies of the notice, on forms pro- vided by the Regional Director for Region 24, 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 custom- arily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, 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. "If this Order is enforced by a judgment of a United States court of appeals, the words in the notice 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." EL PRAN COM132 1119 CHAIRMAN DOTSON, dissenting. I disagree with my colleagues' finding that the actions of combo members Jose Louis Duchesne and Mike Ramos following the announced sale of an album and distribution of its proceeds constitute activities protected by the Act. Futhermore, I do not find Ramos engaged in concerted activities. Thus, like the judge, I would dismiss the com- plaint. The facts show that in fall 1979, 1 the Respond- ent's manager and music director, Rafael Ithier, sought a distribution agent for the combo's 12th album, "Aqui No Se Sienta Nadie." Ralph Carta- gena, owner of Rico Records Distributors, Inc. (Rico), sought the right to make the best offer and made an offer on behalf of Rico. Twice before a contract was signed by Ithier and Cartagena, Rico's offer was explained to combo members. That contract paid the combo $16,000 for the album, gave Rico exclusive distribution rights, and provided for additional compensation if album sales exceeded $85,000. Ithier and Cartagena also agreed that Ramos, the combo's only dancer, who had not participated in the recording, would not receive a share in the album's proceeds. When Ithier first told combo members that Rico had offered to buy the album for $1000 per member, 2 he asked for a show of hands of those who agreed to the proposal. All but Duchesne raised their hands. Duchesne claimed that Ithier could get between $30,000 to $50,000 for the album and that both he and other members were worth more that $1000 each. Despite persistent claims that Ithier could get more for the album, Duchesne did not answer when Ithier asked how much he thought the band should receive. Ithier told Du- chesne he was greedy, and said, "Duchesne, you have a very short time left working with me." At some point after the album was released Car- tagena distributed to each member but Ramos the initial $1000, and later $650 for additional sales. In the meantime Ithier heard that Duchesne was com- menting to other combo members that Ithier was stealing from the combo, that Duchesne was not in agreement with the business, and that he did not intend to cash his checks for the album's proceeds. In late November, Ithier stopped a combo rehears- al to say he was unhappy with Duchesne because of his oppOsition to the business arrangement which had been concluded. At the same rehearsal Ithier announced his agreement with Cartagena that Ramos, absent due to illness, would not re- ceive a share of the album's proceeds. Duchesne 1 All dates herein are in 1979, unless otherwise indicated. 2 Ithier decided to keep $5000 for his efforts as producer, mixer, and director of the album. immediately informed Ramos of this fact and urged him to complain to Ithier. Ramos instead com- plained about Ithier's arrangement to Maldonaldo, a member who handled many of the combo's ad- ministrative matters. Ramos told Maldonaldo that as a combo member, he was entitled to $1000 even though he had not participated in the recording. Ramos commented to other combo members that Ithier was stealing from the band, comments that Ithier was aware of. According to Ithier's credited testimony the comments of Duchesne and Ramos that he was stealing from the band caused dissension, undercut the morale of the musical organization, and precipi- tated their discharge. My colleagues find that the comments by Duchesne and Ramos concerning Ithier stealing "were part parcel of their respective expressions of dissatisfaction with the amount and manner of compensation" for recording the album "Aqui No Se Sienta Nadie," and, based on this finding, conclude that "Ithier admitted" that it was the dissension resulting from protected acts which caused him to discharge both Duchesne and Ramos. I disagree. There are two far more plausi- ble and very different interpretations of the stealing comments—either Duchesne and Ramos were ac- cusing Ithier of defrauding combo members of money rightfully theirs, or they were challenging the wisdom of decisions made by Ithier which were wholly within his management prerogative. Under either interpretation, I cannot find Duchesne and Ramos engaged in conduct protected by the Act. The accusation that someone is stealing, taken at face value, means the accused has wrongfully taken something belonging to another. It implies a dis- honest or unlawful act. This is the meaning most likely intended by Duchesne and Ramos. Such an accusation, leveled without factual foundation, is both defamatory and insulting. When leveled against the sole head of a small employer to the majority of its employees the potential disruptive effect on discipline is substantial. In this case, there is no evidence that Ithier was stealing or that he was in any way dishonest in his financial dealings. Yet, in total disregard of the truth, Duchesne and Ramos told many combo members that Ithier was stealing from them. Given these facts, and Ithiees credited testimony that the comments by Duchesne and Ramos that he was stealing had an erosive impact on combo morale, I find, as did the judge that Duchesne and Ramos, by such comments, for- feited the protection of the Act.3 3 Compare, Walk Mfg. Ca, 137 NLRB 1317, 1319 (1962) (in which the Board found that because inaccurate remarks were not shown to be de- Continued 1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The second, and only other plausible interpreta- tion on this record of the comments by Duchesne and Ramos that Ithier was stealing is that they were intended as criticism of a decision wholly within the discretion of management. As manager, it was Ithier alone who engaged in negotiations with Cartegena for the distribution rights of the album. Cartegena made him an offer, and sought the right to better that offer to get the contract. Ithier's informality in bringing Cartagena's offer before the combo for discussion in no way suggests relinquishment of his unquestioned authority to set the album's price and the terms for distribution of its proceeds. These were decisions involving man- agement policy which Ithier alone was responsible for making, and made. And, if Duchesne's and Ramos' comments about Ithier stealing are to be taken other than at face value, it must be said that they were intended to criticize Ithier on precisely these matters. In particular, Duchesne made the nature of his complaint clear from the first, when he repeatedly criticized Cartegena's offer as insufficient. His com- ments about Ithier stealing went hand-in-hand with comments that he disagreed with the "business," and Ithier knew this. Ithier also knew that to fuel the impact of his criticism, Duchesne told other members he did not intend to cash his proceeds checks. Significantly, at the November meeting when Ithier raised the subject of Duchesne's criti- cisms, he stressed he was upset by Duchesne's con- tinued opposition to the then-settled business deal. These attacks on management policy destructively challenged Ithier's business judgment4 and, as Ithier testified, undermined his ability to maintain unity. The Supreme Court long ago held that employee attacks involving policies for which management is responsible and not wages, hours, and working conditions, provide adequate cause for discharge within the meaning of Section 10(c) of the Act. 5 In my view the comments made by Duchesne and Ramos about Ithier stealing, even if viewed in the most generous terms, constituted attacks on policies within the responsibility of management and not expressions of dissatisfaction with wages, hours, and working conditions. Accordingly, under any reasonable interpretation of the record I do not famatory or insulting in character, they did not forfeit protection of the Act); and Marlin Firearms Co., 116 NLRB 1834, 1839 (1956) (wherein the Board found an employee did not forfeit protection of the Act when he gave currency to information he did not know to be inaccurate). Board cases involving provocation in a union or concerted activity situation are not here relevant. Cf Thor Power Tool Co. 148 NLRB 1379 (1964). 4 In this regard Duchesne never told Ithier the amount he thought the band should receive for the album. 5 NLRB v. Electrical Workers IBEW Local 1229, 346 U.S. 464, 476 (1953). find protected Duchesne's and Ramos' comments about stealing. Further, since Ithier admitted it was these comments which precipitated the discharge of Duchesne and Ramos, I find he had adequate cause for the discharges within the meaning of Sec- tion 10(c) of the Act. I further find that Ramos, the combo's only dancer and singer, did not engage in concerted ac- tivity when he complained about Ithier's agreement with Cartegena to exclude him from any share in the proceeds of "Aqui No Se Sienta Nadie." Ramos' objection was based on his unique situation as the only combo member not to have taken part in the album's recording. When Ramos took his complaint to Maldonaldo, he indicated that because he was part of the combo he should be paid despite the fact he had not participated in the recording. Thus, Ramos only protested management's decision to deny him remuneration in the absence of partici- pation. Ramos' complaint, in other words, was a personal one related to his unique situation. The question of remuneration for Ramos was of concern to no one but him. When Ithier announced to combo members that Ramos would not receive any money from the sale of the album, none of the musicians raised any objection to his being ex- cluded from a cut in the album's proceeds. It is true that later Duchesne informed Rainos that he would not receive a share of the album's proceeds and urged him to speak to Ithier. But there is no evidence that Duchesne did anything in further- ance of Ramos' cause. He neither supported Ramos nor indicated that he would support Ramos in his efforts to receive a share of the album's proceeds. By Ramos' admission, the other employees with whom he talked about entitlement to a share in the album's proceeds, viewed the matter as Ramos' problem alone. Also, Duchesne, the only person whose conduct even begins to suggest alignment with Ramos' cause, was concerned exclusively with the sufficiency of the album's proceeds, while Ramos' concern was his own plight. When asked, "Were you and Duchesne fighting for your rights, or his rights, or his rights and your rights, individ- ually or jointly?" Ramos replied, "He [Duchesne] was fighting his and I was fighting mine." The question of remuneration to nonparticipants was thus of moment to Ramos alone and not a concert- ed activity as alleged.6 See Comet East Freight, 262 NLRB 430 (1982). Further, I do not find the record establishes that Ramos sought to induce or to prepare for group action within the meaning of Meyers Industries 281 NLRB (1986) (Meyers II),. In response to the judge's leading question; "Did you make an effort to enlist the support of other members of the band. . . [in re- gards to the refusal of Mr. Ithier to pay you $1000," Ramos did answer, "Yes." However, the record as a whole fails to establish that Ramos did Continued EL GRAN COMBO 1121 For all of these reasons, I would not fmd that Duchesne and Ramos were discharged for engag- ing in concerted activity protected by the Act, and would dismiss the complaint. more than talk to other combo members about his particular situation. In this regard, I note that when asked, "Did Mr. Ramos ask you to support him against Ithier?" combo member Aponte answered: "No, he really didn't do that." Thus, even if as Ramos testified, he spoke to "[A]lmost all the band," I do not find the record as a whole supports the majority's statement that Ramos attempted "to enlist the support of the other combo members." 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 discharge employees because they engaged in protected concerted activities for their mutual aid or protection. 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 Jose Luis Duchesne and Mike Ramos immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously 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 notify each of them, that we have re- moved from our files any reference to his dis- charge and that the discharge will not be used against him in any way. EL GRAN COMBO DE PUERTO RICO, D/B/A EL GRAN COMBO Raféal Medina, Esq., for the General Counsel. Jose Marrero Febu..% Esq., of Bayamon, Puerto Rico, for the Respondent. Jose Luis Duchesne, of Levittown, Catano, Puerto Rico, pro se. DECISION FINDINGS OF FACT STATEMENT OF THE CASES WALTER H. MALONEY JR., Administrative Law Judge. This case came on for hearing before me at Hato Rey, Puerto Rico, on an unfair labor practice complaint,' issued by the Regional Director for Region 24, which al- leges that Respondent El Gran Combo de Puerto Rico2 violated Section 8(a)(1) of the Act. More particularly, the complaint alleges that the Respondent discharged the Charging Party, Jose Luis Duchesne, and another em- ployee, Mike Ramos, because they engaged in concerted protected activities. Respondent denies that Duchesne and Ramos engaged in concerted protected activities and asserts that these individuals were discharged for cause. On these contentions the issues herein were framed.3 I. THE UNFAIR LABOR PRACTICES ALLEGED El Gran Combo is an orchestra specializing in Latin music and has been in existence for about 17 years. It was founded by Rafeal Ithier and is now composed of 13 members, who perform wider Ithier's direction and con- trol. Ithier is not only the pianist for the combo, but is its director, musical arranger, and the manager of its busi- ness affairs. It is he who hires and fires band members. El Gran Combo plays musical engagements not only throughout the Island of Puerto Rico, but also in the continental United States and in Central America. As its reputation increased, it has also undertaken the recording of albums, the latest of which gave rise to the events in this case. Charging Party Jose Luis Duchesne was the first saxa- phone player. He was hired by Ithier about 11 years ago. The other alleged discriminatee, Mike Ramos, was a dancer who also sang in the chorus and who, on occa- sion, played a small wind instrument called the quiro.4 The disagreements that led to the discharges of Du- chesne and Ramos centered on the recording of an album called "Aqui No Se Sienta Nadie" (Nobody Sits Down Here), which was taped in Puerto Rico sometime in May or June 1979 and was ultimately sold in the fall 1 The principal docket entries in this case are as follows: Charge filed on February 19, 1980, by Jose Luis Duohesne, an individ- ual, against Respondent; complaint issued by the Regional Director, Region 24, against the Respondent on April 18, 1980; Respondent's answer filed on April 28, 1980; hearing held in Hato Rey, Puerto Rico, on July 28 and 29, 1980. 2 Respondent admits, and I find, that it is an unincorporated associa- tion doing business under the trade name of El Gran Combo. At all times material it has maintained its pnncipal place of business in Bayamon, Puerto Rico, and has engaged in providing musical entertainment to night clubs, hotels, and other business and commercial enterprises in Puerto Rico, the continental United States, and elsewhere. During the preceding year, the Respondent, in the course and conduct of its business operations, performed musical services valued in excess of $50,000 for various business and commercial enterprises located outside the Com- monwealth of Puerto Rico. Accordingly, the Respondent is an employer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act. 3 The transcript is corrected as follows: On p. 10, L.21, add the phrase "from the sequestration order." 4 The quilo is actually a hollow gourd. 1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of 1979 to Ralph Cartagena, the owner of Rico Records Distributors, Inc., of New York City. In addition to mar- keting records, Cartagena has served El Gran Combo for a number of years as the booking agent for its engage- ments in the continental United States. The facts in this record are somewhat confused, espe- cially insofar as they relate to the actual sequence of events that occurred in the fall of 1979. For that reason, I have relied, whenever possible, on documentary evi- dence rather than the recollections of witnesses to estab- lish the order in which various events occurred. It is cer- tain that "Aqui No Se Sienta Nadie" was the 12th record cut by El Gran Combo since 1972 and that the first 11, distributed under the label EGC, were not successful. Indeed, when the Respondent originally embarked on the recording of music, several members of the band were requested to make a contribution to fmance the effort and were spared this burden only when one of the band members mortgaged his house in order to provide money for recording expenses. Whatever net income that may have been derived from these albums was apparent- ly used to pay traveling and other expenses incurred by the organization. Band members received nothing for the recordings nor were they paid for the rehearsal time and time spent in the studio in making the records. However, the distribution of the earlier records did serve a promo- tional value for the combo. When it appeared that the 12th album might generate significant revenue, Ithier was confronted with the ques- tion of which company would be the most advantageous agent to hire to distribute the recording. Cartagena, who had been involved in business dealings with the Re- spondent over a number of years, asked Ithier to be al- lowed to meet his best offer. He also made Ithier an offer on behalf of Rico Records. Ithier said he would take up the matter with the members of the band and re- spond to Cartagena's offer. Sometime prior to its accept- ance, Ithier brought Cartagena's proposal to the attention of the members of the combo during a rehearsal which took place at Lomas del Sol, a nightclub located in Aguas Buenas. He told the band members that Cartagena had offered to buy the record from El Gran Combo for $1000 per member and asked those who agreed to the proposal to raise their hands. Everyone raised his hand except Duchesne. Duchesne told Ithier he thought that the record was worth more than $1000 per member and also expressed the opinion that he himself was worth more than $1000. Ithier became upset and told Duchesne that he had only a very short time left working for him. He asked Duchesne why he objected to the proposal. Duchesne replied that Ithier would go to Colombia, Venezuela, and elsewhere in South America and would get $30,000, and that he would also get $50,000 for it in Puerto Rico and the continental United States. Ithier asked Duchesne how much he thought each band member should receive, but Duchesne made no reply. Ithier also told Duchesne that he was very greedy, but Duchesne kept insisting that the record was worth more. At the end of a tour in the continental United States, the members of El Gran Combo met with Cartagena at his office in New York City to discuss the offer. All were present except Ramos. Cartagena refused to pay Ramos any of the anticipated proceeds of the album sale because Ramos, a dancer, did not participate in the re- cording in any way. Cartagena asked the members if they had any objection to $1000 per man for the album. There were no objections at this time from any band member, including Duchesne. Shortly thereafter, Cartagena and Ithier executed a contract that is in the record of this case. By the terms of this contract, El Gran Combo, acting through Ithier as its director and leader, gave Cartagena exclusive rights to an L P record containing at least eight numbers for the sum of $16,000. The contract also provided for additional compensation in the event that the album sold more than 35,000 copies. The album was released by Cartagena to the general public in October 1979. During a later trip by the combo to New York, Carta- gena paid each of the members $1000, as agreed on. I credit his testimony that he actually handed Duchesne a check for $1000, representing Duchesne's share of the album sales. Sometime later, Cartagena mailed an addi- tional check in the amount of $650 directly to each member of the combo, except Ramos. This amount rep- resented each members's share of additional income which the album had garnered after the completion of the first 35,000 sales. In late November, the combo was again in New York and was rehearsing at Cartagena's office. Apparently Cartagena was not present on this occasion. Uhler inter- rupted the rehearsal to talk about the record album. He said that he was upset with Duchesne because of the lat- ter's opposition to the business arrangement that had been concluded. Duchesne replied that, because most of the band members favored the deal, Ithier could still do what he wanted, but he reiterated the same opposition he had voiced on an earlier occasion in Puerto Rico. Ramos was not present at this rehearsal because of illness. During the course of the discussion Ithier stated that Ramos would not receive any of the proceeds from the album. After the conclusion of the rehearsal, Duchesne visited Ramos in his room at the Taft Hotel and informed Ramos that Ithier had said he would not be paid for the album. Duchesne suggested that Ramos speak with Ithier about this matter. Ramos did not speak with Ithier. In- stead, he spoke with another band member, Tati Maldon- aldo, who often handled various administrative matters for Ithier, including payments to band members. He told Maldonaldo that he had heard a rumor that he was not going to receive any money for the album and stated that he was unhappy about it. He argued that he was a member of the band and that he expected to get a share of the proceeds of its albums, just as he received a share of what the combo made at dances and night club ap- pearances. Maldonaldo replied that he had nothing to do with Ramos' complaint and that Ramos should speak di- rectly with Ithier. Ramos also expressed his unhappiness about not get- ting paid in a conversation with another band member, Fani Ceballos. Ithier heard about the visit that Duchesne had made to Ramos in the latter's hotel room and also heard rumors, the source of which he did not wish to EL GRAN ocmpo 1123 identify, that Ramos and Duchesne had said that he was stealing their money. The record in this case indicates that Duchesne told at least one band member, Carlos Aponte, that he did not trust Ithier and that Ithier was stealing money from the band. Ithier testified that he had heard such comments on earlier occasions. He admitted that band members Perrez and Maldonaldo had told him that Duchesne was making comments in general about him behind his back. One comment that Wier heard was that Duchesne was not going to cash the check that he received as his share of the proceeds of the record sale.5 On December 27, 1979, Ithier wrote identical letters to Duchesne and Ramos discharging them. Ithier and all of the other members of El Gran Combo are members of the Federation of Musicians of Puerto Rico, AFL-CIO, and are bound by a provision of its bylaws that requires any member to give 2 weeks' notice before either quit- ting a band or discharging another member. Ithier's let- ters read: Pursuant to Regulations of our Federation, I am serving you with two (2) weeks' notice of dis- charge. This notice begins on 12/27/79 and will expire on 1/10/80. Ramos and Duchesne complained to the Union about the discharges, but the only adjustment made as a result of the complaints was to extend the notice period by a few days because El Gran Combo was on vacation at the time the notices were served and union rules require service of notice at such time as employees are actually working. II. ANALYSIS AND CONCLUSIONS In order for the Board to grant a remedy for a dis- charge assertedly made in violation of rights conferred by Section 7 of the Act, there must be a causual connec- tion between the discharge and words or actions of an employee that amount to concerted, protected activity. If the activities of an employee that cause his discharge are either not concerted or are not protected by the Act, no violation has occurred. In certain instances, where a single employee voices complaints or takes other actions that relate to working conditions or matters that are of general interest to a bargaining unit, the Board has grant- ed the protection of the Act by fashioning a doctrine that states such actions are concerted because other em- ployees are deemed to have given the alleged discrimina- tee implied consent to act on their collective behalf. In- terboro Contractors Assn., 157 NLRB 1295 (1966), eat. 388 F.2d 495 (2d Cir. 1967). This doctrine has run into considerable difficulty in the courts of appeals, especially in situations in which no union contract is involved and the source of the implied or actual consent by fellow em- ployees to the activities of their activist colleague is diffi- cult to discem. 5 Quite apart from legal questions that 5 On advice of counsel, Duchesne has yet to cash either the initial cheek for $1000 from Cartagena or the supplemental check that he later received. 6 For a recent and critical survey of the present status of this doctrine in the various courts of appeals, see the opinion of the District of Colum- bia Circuit in KohIs v. NLRB, 629 F.2d 173 (1980). have arisen in enforcement cases, where the terms of a union contract are not involved and a single employee is discharged for expressing a grievance, there is often a thin factual line to draw between the presentation of a grievance that is of general interest to all other employ- ees and the personal gripe of a disgruntled individual that enjoys no legal protection. See, for example, Capitol Ornamental Concrete Specialties, 248 NLRB 851 (1980). Although all private parties to this litigation are members of the Musicians Union, there is no contention that either Ramos or Duchesne was engaged in enforcing the terms of its contract when they expressed unhappiness to Ithier and others over the compensation they received, or failed to receive, as a result of the sale of "Aqui No Se Siesta Nadie." Ramos' complaint was that he received no compensa- tion whatsoever from the sale of the recording. As a dancer, he was not called on to participate in the record- ing and he did not do so. Cartagena was opposed to paying Ramos anything because he contributed nothing to the final product that was being marketed. With re- spect to the question whether his complaint was an indi- vidual or a collective grievance, it should be remem- bered that any compensation that Ramos might have re- ceived could have diminished the total earnings of his fellow employees. Accordingly, the interest he was as- serting in this matter was potentially adverse to theirs rather than concerted activity that was undertaken on their behalf and with their implied consent. Ramos was asked at the hearing, "Were you and Duchesne fighting for your rights, or his rights, or his rights and your rights indivdually or joint[ly]." His reply was "He [Du- chesne] was fighting his and I was fighting mine." The nature of his complaint as well as his own admission make it plain that, despite the effort he made to enlist the support of other band members, Ramos was not engaged in concerted activities when he complained about being cut out of a share of the proceeds of the album sale. Moreover, Ithier testified that he was unhappy with Ramos because Ramos was looking for a job with an- other orchestra and, as a result, had frequently missed re- hearsals. Ithier also testified without contradiction that, shortly before Ramos and Duchesne were discharged, it had reached his ears that they had been making insulting comments to other members of the band to the effect that Ithier was stealing money from the band. He felt that he could not tolerate this type of dissention and still preserve the morale of a musical organization. Accord- ingly, I conclude that Ramos was not engaged in con- certed activities in protesting the failure of Cartagena or the Respondent to pay him a share of the proceeds from the sale of the album and that the precipitating cause of his discharge, coming at the point in time when it oc- curred, was Ramos' reported remarks that caused Ithier to feel that Ramos was promoting dissention among other employees. In order for a grievance to fall within the legal defini- tion of protected activity, it must relate to wages, hours, or terms and conditions of employment. If one or several employees are engaged in a protest against their employ- er that is unrelated to one or more of these subjects, the 1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD protest falls outside the protection accorded by Section 7 of the Act.7 The complaint in this case alleges, and Re- spondent admits, that Respondent is an unincorporated association. This fact would indicate that there is a cer- tain degree of participation by the members of the band in management decisions, despite record evidence that suggests, but does not establish, that Ithier treated El Gran Combo as his sole proprietorship. When the ques- tion of the album sale arose, Ithier, despite the fact that he was clothed with apparent and perhaps actual author- ity to act on behalf of the association, declined to accept Cartagena's offer without first consulting the band mem- bers. He asked for and obtained their express consent to the sale price before entering into a contract with Carta- gena. Cartagena also discussed the question of the sale price with the band members themselves and quoted to them a rate of compensation for the total sale that spoke in terms of specific amounts for each individual artist. When the time came to comply with the agreement, Car- tagena made individual payments, both as to the initial amount and the supplementary earnings, directly to each individual band member. The written contract was con- cluded with the collective enterprise and it was signed by Ithier on behalf of Respondent, but the contract amount was arrived at as an aggregate of payments to be made to the individual members who had been consulted and whose consent, with one exception, had been ob- tained. The nature of Duchesne's complaint was that the re- cording was worth more than Cartagena was willing to pay and that Ithier could, and perhaps would, get more for it when the album was promoted throughout the United States and in Central America. He also felt he was worth more than the $1000 that Cartagena was will- ing to pay each member of the band. It is admitted that Respondent is an employer and that Duchesne was its employee. It also goes without saying that the amount of money to be derived by each member of the combo from the sale of the recording constitutes compensation for services contributed to the production of the recording. However, the $1000 initial payment and the $650 supple- mental payment, made directly by Cartagena to each 7 See, for example, Shulman's Inc., of Norfolk, 208 NLRB 772 (1974); Northeastern Dye Works, 203 NLRB 1222 (1973); NLRB v. Electrical Workers IBEW Local 1229 (Jefferson Standard), 346 U.S. 464 (1953). combo member, were more in the nature of partnership shares in a joint venture than wages derived from their status as employees. How much the recording was worth on the open market—the nub of Duchesne's disagree- ment with and others—relates to the pros and cons of a business deal to be concluded with a person outside the association rather than to how much Duchesne was to get from El Gran Combo itself by way of compensation for services rendered directly to El Gran Combo. Ac- cordingly, I conclude that the Duchesne's basic com- plaint did not involve statutorily protected subject matter but related to the propriety and profitability of a business undertaking by the association, which constitutes Re- spondent. Moreover, Duchesne was all alone in his complaint. A vote was taken and he lost, 11 to 1. Based on these facts, it cannot be seriously argued that he had even the re- motely implied consent of his fellow band members to voice a complaint on their behalf. His complaint was his own personal gripe and it was not shared by any other person. Accordingly, the grievance here in question not only was not protected activity, it was not concerted ac- tivity either. Like Ramos, Duchesne stated to other em- ployees the belief that Ithier was stealing from the combo. At least one such expression by Duchesne is in the record in this case. When these matters came to Ith- ier's attention, he felt he had to act for the good of the whole association and he did. Hence, the discharge of Duchesne also lacked a causal connection between any arguable protected, concerted activity and Ithier's deci- sion in this regard. In light of these considerations, I con- clude that the Respondent did not violate Section 8(a)(1) of the Act when it discharged either Duchesne or Ramos. CONCLUSIONS OF LAW 1. Respondent El Gran Combo de Puerto Rico, d/b/a/ El Gran Combo is an employer engaged in com- merce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. In discharging Jose Luis Duchesne and Mike Ramos, the Respondent did not violate Section 8(a)(1) of the Act. [Recommended Order for dismissal omitted from pub- lication.]