Tobias Kotzin Co.

National Labor Relations Board - Board Decisions

Aug 23, 1984

271 N.L.R.B. 1200 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tobias Kotzin Company and Febronio Figueroa.
Case 21 -CA- 18792
23 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 29 April 1981 Administrative Law Judge
James S. Jenson issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief in
support of the judge's decision.
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 briefs 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 the Respondent violated
Section 8(a)(1) of the Act by discharging employee
Febronio Figueroa for walking off the job without
authority in protest of the Respondent's denim
piece work rate. Although Figueroa acted alone
and for his own benefit in walking off the job the
judge found that Figueroa was engaged in protect-
ed concerted activity relying on Steere Dairy, 237
NLRB 1350 (1978); Hansen Chevrolet, 237 NLRB
584 (1978), and Ontario Knife Co., 247 NLRB 1288
(1980), progeny of Alleluia Cushion Co., 221 NLRB
999 (1975).
In the recent decision in Meyers Industries, 268
NLRB 493 (1984), the Board held that the activi-
ties of a single employee will not be found to be
"concerted" within the meaning of the Act unless
they are engaged in with or on the authority of
other employees and not solely by and on behalf of
the employee himself. In so doing we overruled Al-
leluia Cushion and its progeny's test for concerted
activity, which was used by the judge herein.
It is clear here that Figueroa acted alone and for
his own benefit in walking off the job. Contrary to
the judge's analysis, Figueroa's singular protest did
not become concerted simply because (1) the sub-
ject matter involved a matter of common interest
to employees, i.e., wages; and (2) other employees,
independent of Figueroa, had complained about the
denim piece work rate. Accordingly for reasons
fully set forth in Meyers we shall dismiss the com-
plaint in its entirety.
ORDER
The complaint is dismissed.
271 NLRB No. 196
MEMBER ZIMMERMAN, concurring.
I agree with my colleagues that employee Fe-
bronio Figueroa was not engaged in concerted ac-
tivity when he was discharged, but I do so for the
reasons set forth below.
The record shows that on Tuesday, 19 February,
the Respondent introduced a piece rate for a new
product made of denim. Several employees com-
plained to the department supervisor that the rate
was too low, and on Wednesday a new timestudy
was conducted which resulted in the same rate.
The employees made no other objections1 and did
not attempt to use appeal procedures to higher
management. On Thursday morning employees
were assigned the denim work, and after about 15
minutes Figueroa told the supervisor he would not
work for the rate and left the plant. The remaining
employees continued to work on the denim so long
as that work was assigned, a period of about 1 to 1-
1/2 hours.
As I interpret these facts, Figueroa acted as an
individual in protesting the new rate. Any group
complaint that employees made on Tuesday about
the denim rate had been resolved when Figueroa
walked off the job. Management had responded to
the employee complaints with a new timestudy,
and the employees had taken no other action. They
had sought no further redress and on Thursday
performed the denim work assigned at the rate
they had previously protested. I find no evidence
linking Figueroa's "walkout" on Thursday to the
earlier complaints of employees, or in any way in-
dicating that he was acting in concert with other
employees when he walked off the job.
I do not agree with the judge's statement in find-
ing that Figueroa was discharged for engaging in
concerted activity that:
. . . to be protected by Section 7, it need not
be shown that an individual employee acted on
behalf of other employees and not solely for
personal reasons. The Board's test for a con-
certed activity is whether the activity involves
a group concern ....
Even if it can be presumed that an individual
action involving a group concern constitutes con-
certed activity, any such presumption concerning
Figueroa's walkout has been rebutted by the fact
that the employees' protest over the new piece rate
had ended.
The judge found that the record established that employees also
complained to the Respondent about the rate after the second timestudy.
As the Respondent correctly notes, the administrative law judge miscon-
strued the record. The record shows that employees complained about
the piece rate only after the first timestudy.
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TOBIAS KOTZIN CO.
Accordingly, inasmuch as Figueroa acted alone
in walking off the job in protest of the new rate,
and there is no basis for inferring that his individ-
ual action constituted concerted activity, I would
dismiss the complaint.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. This
case was tried in Los Angeles, California, on November
5, 1980.1 The complaint, which issued on April 30, pur-
suant to a charge filed on March 13, alleges the Febru-
ary 22 discharge of Febronio Figueroa, because he en-
gaged in protected concerted activity. The Respondent
contends Figueroa walked off the job without prior per-
mission, and that he was not engaged in protected con-
certed activities. All parties were afforded full opportuni-
ty to appear, to introduce evidence, to examine and
cross-examine witnesses, to argue orally, and to file
briefs. Briefs were filed by both the General Counsel and
the Respondent, and have been carefully considered.
Upon the entire record in the case, 2 and from my ob-
servation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Tobias Kotzin Company is engaged in the manufacture
and sale of men's clothing. It annually sells and ships
goods and products valued in excess of $50,000 directly
to customers located outside California, and annually
purchases and receives goods and products valued in
excess of $50,000 directly from suppliers located outside
California. It is admitted and found that the Respondent
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II1. ISSUE
Whether Figueroa was engaged in protected concerted
activities for which he was terminated.
Figueroa was the only witness called by the General
Counsel. In addition to contradicting himself, much of
his testimony is directly refuted by witnesses for the Re-
spondent; witnesses who presumably could corroborate
Figueroa's testimony were not called, nor was an expla-
nation given for the failure to call them, leading to the
inference that had they been called their testimony
would not have been favorable to Figueroa. Further, the
Respondent showed, through documentary evidence,
that conversations Figueroa claims he had with fellow
employees on Thursday, February 21, could not have
occurred since the employees had either not yet reported
for work that morning, or had not worked since
Monday. In short, Figueroa was an unreliable witness
and I do not credit his testimony where it conflicts with
that of any of the other witnesses.
I All dates are in 1980 unless stated otherwise.
2 Errors in the transcript have been noted and corrected.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
The Respondent manufactures and sells men's sports-
wear, with two manufacturing facilities in Los Angeles
and one in Louisiana. The facility at 420 South San
Pedro street in Los Angeles is the only one involved in
this proceeding. Febronio Figueroa was one of eight
"hot-head legger pressers" in the pressing department,
which was comprised of about 75 employees. Humberto
Ramirez is the pressing department supervisor. He re-
ports directly to Gilberto Abrego, the pressing depart-
ment manager. Abrego is directly responsible to Director
of Manufacturing Mario Horowitz. Joseph Rodriguez is
the vice president, personnel, whose responsibilities in-
cluded the approval of hires, terminations, interpreting
and enforcing personnel policies, and resolving griev-
ances. The Respondent admits that Rodriguez and
Abrego are supervisors and agents of the Respondent,
and it is so found. While the Respondent denied in its
answer that Ramirez is a supervisor and agent, it stipulat-
ed that he possessed authority to allow employees to go
home early. In light of that authority, and as it is clear
he was the pressing department employee's link to man-
agement, I find Ramirez is a supervisor within the mean-
ing of Section 2(11) of the Act.
Figueroa started working for the Respondent in 1966.
The record shows the pressing department employees
are paid on a "piece rate" basis. When a new style or
material is introduced, a timestudy is conducted by the
industrial engineering department on several employees
selected at random, and a "piece rate" established for the
new item. If an employee is dissatisfied with the rate that
has been established, he may request his supervisor, in
this instance Ramirez, for a review of the rate. This usu-
ally results in another timestudy. Thereafter, appeals may
be made by the employee to the director of manufactur-
ing and then to the vice president of manufacturing. Ap-
peals are a frequent occurrence, and employees are famil-
iar with the appeals procedure.
In mid-February, a new denim product was intro-
duced. As the material was heavy, Ramirez initiated a
timestudy, which was conducted on February 14 and 15
and resulted in the establishment of a piecework rate of
$6.20 per 100 pieces worked, effective Tuesday, Febru-
ary 19.3 On Tuesday, February 19, Manuel Fajardo, Ma-
tilde Nevarez, and Everardo Vidrio complained that the
piecework rate was too low. 4 On Wednesday, February
20, a new timestudy was made, which resulted in the
same rate, $6.20. While Ramirez testified at one point
that there was no reaction from the employees when he
informed them of the results of the second timestudy, he
also testified that they complained after he had given
3 Figueroa was on layoff the week of February 11-16. The date of the
first timestudy is based on the testimony of Rodriguez.
4 There is some confusion in the record as to whether the complaint
was made on Monday afternoon or Tuesday. As noted, the new rate did
not go into effect until Tuesday, and the timecards show that no one
worked Monday afternoon. Accordingly, I conclude, as noted herein,
that the three employees complained about the new rate on Tuesday and
a new timestudy was done on Wednesday.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them the rate. It is undisputed that at no time did the
denim exceed 10 percent of the work.
B. The Alleged Concerted Activity
Throughout his testimony, Figueroa portrayed himself
as the spokesman for the pressing department employees.
He claimed that, 4 or 5 years ago, Pressing Department
Manager Abrego had recommended to the ironers that
they choose a spokesman. He listed the names of those
employees allegedly present. Consequently, he testified,
both he and Fernando Guillinta were selected. While at
one point he testified he did not remember ever notifying
any member of management that he had been selected as
an employee spokesman, he also testified he "always"
spoke to Abrego on behalf of his coworkers. Abrego, on
the other hand, denied he ever told the employees to
select a spokesman for other employees. Prior to becom-
ing the pressing department supervisor in January 1977,
Ramirez was a presser. Corroborating Abrego, he testi-
fied that Abrego never told the pressing department em-
ployees that they should select a spokesman or that Fi-
gueroa ever acted as a spokesman for any other employ-
ees. None of the other pressers was called to support Fi-
gueroa's claim that he was a spokesman, nor was an ex-
planation given for the failure to do so, leading to the in-
ference that, had they been called, their testimony would
not have been favorable to Figueroa. Accordingly, I do
not credit Figueroa, and do credit the testimony of both
Abrego and Ramirez. The record does not show that Fi-
gueroa was selected as a spokesman by the pressing de-
partment employees, nor that he acted as their spokes-
man for a span of 4 to 5 years as he claims. Consequent-
ly, I do not credit Figueroa's testimony that, as a result
of conversations with other employees during January,
he told Abrego in early February that "we were not sat-
isfied" with the rate set for denim and that Abrego indi-
cated he would see what could be done.
Figueroa testified that he arrived at work about 6:30
the morning of February 21 and immediately punched
in.5 He claimed he proceeded immediately to the lunch-
room where some of the other pressers were, and that
they discussed the denim rates. While the General Coun-
sel failed to call any witnesses to corroborate Figueroa's
testimony, Figueroa claimed that he engaged in a group
discussion with employees Pedro Rios, Jose Alvarado,
Isidro Salgodo, 6 Jesus Maria Gonzalez, and Juan
Barron7 within 5 minutes of his arrival at work, and all
indicated displeasure with the denim rate and said that
Figueroa should be their representative. After the group
discussion, he testified, he had more discussions with un-
named individuals before going to his work station at
6:50 or 6:55 a.m. He had no further discussions concern-
ing denim rates with the fellow employees that day.
Thus, all of his purported discussions occurred between
All employees punch in on the timeclock as soon as they arrive.
Figueroa wafed on Salgado. He testified at one time that Salgado
was in the group discussions; at another that he did not speak to Salgado;
and at a third time Salgado indicated he was dissatisfied with the denim
rates.
I While Figueroa testified on direct examination that Barron was
present, on cross-examination he did not think he was there, and then
was certain he was.
6:30 and 6:50 or 6:55 a.m., the group discussion having
preceded the individual discussions. Figueroa claimed the
first individual with whom he spoke was Pedro Rios.
Employee timecards, introduced into evidence by the
Respondent, showed Rios arrived at 6:53 a.m.; Alvarado
at 6:58 a.m.; Salgado and Gonzalez were on layoff after
Monday, February 18, and did not work on February 21;
and Barron did not come to work until 7:11 a.m. It is
also noted that Figueroa made no mention of any discus-
sions with other employees that morning in an investiga-
tory affidavit given a Board agent on March 13. On the
foregoing, I conclude that Figueroa did not tell the
truth, and find that he did not engage in any discussions
with any other employee or employees on February 21
concerning the piece rate for denim.
Figueroa commenced working at 7 a.m. on polyester.
About 7:30, denim was brought out to be ironed. Despite
his admission on cross-examiniation that he did not have
discussion with any of the pressers concerning the denim
rate after the shift began, Figueroa testified on direct ex-
amination that, when the denim was brought out, his co-
workers said "that we should do something because we
could not iron it at that price." He claims that he then
asked Ramirez "what was happening to our demand that
we [would] if we had gotten some raise," and that Rami-
rez responded that he had better get used to it since
denim was all the Company was going to produce. Ac-
cording to Figueroa, he responded "that we would not
refuse to do it, but we could not do it at that price." Ra-
mirez purportedly told him there was nothing he could
do about it. Figueroa testified, "I left to continue my
work, and the rest of the coworkers told me we had to
do something. I told them I had already spoken to the
man, but we could get nothing." He claims that after
working about 15 minutes he approached Ramirez and "I
told him that if it was definite that we could not get any-
thing, that if he would give me permission to go home,"
and that Ramirez responded, "Okay, you can go." When
he turned in his timecard and piecework reports to
Mario Urbano, he stated he told Urbano "that I had
asked for permission, that I had been allowed to leave,
and that I was going." He testified that as he was leaving
he told Isabel Alarcon that "the work was very very
poorly paid for and that we were not satisfied, and that I
had asked him permission, and I had been given permis-
sion to leave." Ramirez, whom I credit, testified that he
was not aware of any conversations between Figueroa
and his coworkers regarding the denim rates; that Fi-
gueroa approached him and said, "Umberto, this job at
$6.20 I will not do. I am going home," and that he re-
sponded, "No way Figueroa"; that Figueroa then turned
in his piecework tickets, punched out his timecard, and
left without speaking to any other employees. In addition
to denying he gave permission for Figueroa to leave, he
denied he had had any conversation with Figueroa earli-
er that morning. Urbano testified that Figueroa did not
tell him that he, Figueroa, had permission to leave.
While Isabel Alarcon was not called as a witness by the
General Counsel to corroborate Figueroa, leading to the
inference that her testimony would not have supported
Figueroa, she later told Rodriguez, Abrego, Horowitz,
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TOBIAS KOTZIN CO.
and John Acquafresca that as Figueroa was leaving she
asked where he was going and he replied he was leaving
because "they don't want to pay for the denim." The
thrust of the foregoing is that again Figueroa has been
proven to be an untruthful witness. Contrary to Figuer-
oa's testimony, I am convinced he was not an employee
spokesman nor did he purport to be at that time, and that
he left the job without the permission of his supervisor
because he was personally dissatisfied with the piece-
work rate, and, as he acknowledged on cross-examina-
tion, because he "had a few problems at home."
Ramirez reported the fact that Figueroa walked off
the job to Abrego, who reported the fact to Rodriguez
and Horowitz. Rodriguez instructed Abrego to "pick up
his timecard and do the regular procedure that we do,
which is fill in the paperwork for when a person walks
off the job," so that the final paycheck could be pre-
pared. When he showed up the following morning,
Abrego advised Figueroa that he was terminated for
having left the previous day without permission. Fi-
gueroa contended he told Abrego that Ramirez had au-
thorized his leaving the day before, which Abrego
denied, ending with "besides that it is too many problems
that you give us." Abrego, whom I have found to be a
reliable witness, denied Figueroa's version. Figueroa ini-
tially denied he had ever seen a copy of the Respond-
ent's rules and regulations, which contain the following
provision:
LEAVING EARLY .... Do not leave your work
station before the end of your shift, unless your super-
visor has authorized or requested otherwise.
A violation of a company regulation could result
in disciplinary action up to and including termina-
tion.
Confronted with his signature acknowledging receipt of
a copy and that he had read, understood, and agreed to
observe them, he finally admitted he had seen them.
On February 27, Figueroa called Rodriguez to see if
he could get his job back. According to Rodriguez, who
I find is more credible than Figueroa, he learned for the
first time that Figueroa claimed that Ramirez had given
him permission to leave. Rodriguez agreed to check it
out, and after determining that Ramirez denied authoriz-
ing Figueroa permission to leave early, called Figueroa
back and informed him that the termination stood. On
March 3, Figueroa and three employees met with Rodri-
guez and presented him with an employee petition, ap-
parently requesting he be rehired. Rodriguez explained
that it was necessary to have rules, regulations, and pro-
cedures for doing things or else their would be anarchy
in the factory.8 After Figueroa contended that Isabel
Alarcon would corroborate his claim that Ramirez had
given him permission to leave on February 21, Rodri-
guez agreed to review the matter again. After determin-
ing that Alarcon did not corroborate Figueroa, Rodri-
8 The Respondent's rule against leaving early witout authorization had
been enforced on one occasion in 1978, and twice after February 1980,
by terminations.
guez advised one of the employees who had appeared
with Figueroa on March 3 that the termination would
have to stand.
Contentions of the Parties
The General Counsel contends Figueroa's "walk out"
on February 21 was in the nature of a protest concerning
the new denim piece rate and "is clearly protected con-
certed activity," and that "one employee's individual
protest is considered 'protected concerted activity'
where it involves a matter of common concern to other
employees." It is contended that all employees routinely
registered complaints concerning new rates, and that, on
February 20, several other employees registered com-
plaints to Ramirez about the low pay rate for denim ma-
terial. Thus, it is contended, the concerted protected
nature of the protest by Figueroa on February 21 has
been unquestionably established. Therefore, it is immate-
rial whether Figueroa may or may not have been desig-
nated or selected as a spokesman or representative of the
other employees. Thus, an individual's protest activity is
"concerted and protected" irrespective of whether he
was overtly designated by other employees to act on
their behalf, where it is clear that the fellow employees,
as here, shared that employee's concern and interest in
the subject matter. It is argued that since Figueroa
"walked out" in protest over the denim rate, and re-
turned to work the next day, it is clear he did not quit
his job and the Respondent's attempt to characterize the
"walk out" as tantamount to quitting is legally indefensi-
ble. The Respondent contends that Figueroa was not a
spokesman for any group of employees, that his com-
plaint concerning the piecework rate for denim was
purely personal, that he did not seek or obtain permission
to leave work on February 21, thus making his departure
from work on that date without such authorization an
abandonment of his employment; that no supervisory or
managerial employee had any knowledge or information
that would have suggested or implied that Figueroa was
voicing a complaint shared by others when he walked
off the job on that date; that the refusal to reinstate him
the following day was not motivated by a desire to re-
taliate against him and that his actions on February 21
and 22 did not constitute concerted activity protected by
Section 7 of the Act.9
Discussion
The credited evidence fails to establish that Figueroa
was ever selected by or acted as a spokesman for his
fellow employees, that he so much as discussed the
denim piecework rate with any other employee, or that
he expressed any dissatisfaction with the rate other than
to tell Ramirez, on February 21, that he would not work
for that rate and was therefore leaving. Having discredit-
ed his testimony that his expression of unhappiness with
i In its brief, the Respondent cited various court decisions. To the
extent that those cases may be inconsistent .ith current Board law, the
Board has long held that it is the duty of an administrative law, judge "to
apply Board precedent which the Supreme Court has not reversed" Iowa
Beef Packers, 145 NL R13 615, 616 (l1965)
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the denim piecework rate was couched in the plural, the
question is whether his singular activity of leaving work
without authority, in violation of the Respondent's rules
and regulations, can be concerted and protected by
virtue of the fact that the denim piecework rate was a
matter of common interest to all employees. Of signifi-
cance is the fact that Ramirez testified that employees
Manuel Fajardo, Matilde Nevarez, and Everardo Vidrio
also complained about the denim piecework rate on Feb-
ruary 20, after the second timestudy had been made and
it was announced that the rate would remain the same.
Thus, it is seen that Figueroa's concern with the piece-
work rate for the denim, which was a uniform rate for
all pressers, indeed involved a matter of common con-
cern and interest to the other employees and that Rami-
rez was aware of it. Under Board cases, this requires a
conclusion that Figueroa's individual protest against the
denim piecework rate (which involved a pay rate of all
the pressers) was thus a concerted activity protected by
Section 7 of the Act. Steere Dairy, 237 NLRB 1350
(1978); Hansen Chevrolet, 237 NLRB 584 (1978). Con-
trary to the Respondent's contention, to be protected by
Section 7 it need not be shown that an individual em-
ployee acted on behalf of other employees and not solely
for personal reasons. The Board's test for a concerted ac-
tivity is whether the activity involves a group concern-
here, the wages of the pressers. Since Ramirez was
aware of the concern of not only Fajardo, Nevarez, and
Vidrio, but also of Figueroa, over the piecework rate, it
cannot validly be argued that the Respondent was not
aware of the concerted nature of Figueroa's protest. In
Ontario Knife Co., 247 NLRB 1288, 1288-89 (1980), the
Board stated:
It is well settled that employees have the right to
leave work in support of a grievance pertaining to
terms and conditions of employment. Blue Star
Knitting, Inc., 216 NLRB 312, 316 (1975); NLRB v.
Washington Aluminum Company, Inc., 370 U.S. 9
(1962). When this occurs, an employer may not
lawfully discipline an employee for breaking a com-
pany rule concerning leaving work without permis-
sion; for to allow it would abrogate the statutory
right to withhold services in support of a grievance.
Furthermore, the fact that Cobado left work alone
does not prevent her walkout from being protected
concerted activity. The Board has in the past found
walkouts by single employees to be protected con-
certed activity. Most recently, in Steere Dairy, Inc.,
237 NLRB 1350 (1978), we found a single employ-
ee's walkout to protest a change in terms and condi-
tions of employment for all employees was protect-
ed concerted activity despite the refusal of other
employees to join in. Similarly, in the present case,
the machete grievance was a group concern of
second-shift employees, and Cobado and Swift were
engaged in group action up to the point when
Cobado walked out alone. (We note that Coabdo
and Swift told Peterson that the next time they
were assigned to do machetes they were going to
refuse.) It follows, a fortiori, that Cobado's individ-
ual protest was protected because it involved a
group concern-the work assignment of all second-
shift employees.
Based on the foregoing, it is found that Figueroa's
walkout was a protected concerted activity, and that his
discharge for leaving work without permission violated
Sectin 8(aX)(1) of the Act. It follows that the Respond-
ent's refusal to reinstate him on February 22 also violates
Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. By discharging and refusing to reinstate Febronio
Figueroa for engaging in protected concerted activity,
the Respondent committed an unfair labor practice
within the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it
cease and desist therefrom and that it take certain affirm-
ative action designed to effectuate the policies of the
Act.
[Recommended Order omitted from publication.]
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