Mike Yurosek & Son, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1992

306 N.L.R.B. 1037 (N.L.R.B. 1992)

1037
306 NLRB No. 210
MIKE YUROSEK & SON, INC.
1 All dates are in 1990 unless otherwise noted.
2 This was consistent with the new schedule announced by Garza.
3 Cougas left early in the day and was not involved in the inci-
dents at issue.
Mike Yurosek & Son, Inc. and Santos Diaz. Case
31–CA–18500
March 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The principal issue in this case is whether the in-
volved employees engaged in protected concerted ac-
tivity.
On July 10, 1991, Administrative Law Judge James
S. Jenson issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondent filed an answer in opposition and a
brief in support of its answer.
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, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
A hearing was held in this matter on April 11, 1991.
At the end of the General Counsel’s case-in-chief, the
Respondent moved that the complaint be dismissed for
failure to establish a prima facie case. The judge grant-
ed this motion, and on July 10, 1991, issued a decision
in support of his ruling, finding that the activity en-
gaged in by the employees was neither concerted nor
protected. We disagree with his decision to grant the
Respondent’s motion to dismiss the complaint.
The Respondent is engaged in the business of proc-
essing, packing, and distributing fresh vegetables. In
early September 1990,1 Juan Garza, the cooling and
warehouse manager, told the group of five employees
on the day shift that he was going to reduce their
hours to approximately 36 hours a week. The employ-
ees protested that this would not give them enough
time to finish the work, but Garza replied that they
were going to have to work that schedule whether they
liked it or not. He also told them that they were to
punch out at exactly the time he told them to punch
out.
On September 24, the day shift was scheduled to
work from 10 a.m. to 4:30 p.m.2 The crew was com-
prised of Rafael Naraes, Antonio Lopez, Jose Rivera,
Santos Diaz, and Jesus Cougas.3 Naraes, a 9-year em-
ployee, was approached by Dock Foreman Jamie Ortiz,
an assistant to Warehouse Manager Garza, around 4:25
p.m. that day and told to work another hour. Naraes
replied that Garza had fixed a schedule and that it had
to be done that way. He then went to the timeclock,
where Diaz, Rivera, and Lopez were, and punched out.
Naraes testified that, after punching out, Ortiz came
and yelled at the employees, saying not to punch in the
next day but rather to wait at the dining tables.
Lopez, an employee with 11 years’ service, was told
by Ortiz (either before or after he punched out) that he
should work another hour. Although Lopez’ testimony
is not clear, it appears that Lopez responded that he
had to respect what he was told before by Garza. After
Lopez punched out, Ortiz said ‘‘tomorrow when you
come in, don’t punch in.’’
Rivera, an 11-year employee, testified that he was
putting ice on a truck a few minutes before 4:30 p.m.
and was unable to hear what Ortiz said. He asked
Lopez what Ortiz said, and Lopez told him that Ortiz
wanted them to stay for another hour. Rivera asked
why, and Lopez said he did not know. After Rivera
punched out, he overheard Ortiz say, ‘‘if you punch
out, you wait for me in the dining room.’’
Diaz, an employee with 15 years’ service, was ap-
proached by Ortiz around 4:25 p.m. and told to work
an extra hour. Diaz said no, ‘‘because Juan Garza told
us that we had to leave at [a] . . . certain hour.’’ Ortiz
made no response and Diaz punched out at 4:30 p.m.
Diaz testified that Ortiz appeared while the four em-
ployees were punching out and Diaz heard him say to
Lopez ‘‘[I]f you punch out, I [will] wait for you to-
morrow [at] the . . . dining table.’’
All four employees testified that there was no dis-
cussion among them about what response to make to
the overtime request between the time that Ortiz told
them to work another hour and the time that they
punched out.
The next day, September 25, the four employees re-
ported to work, and were told not to punch in. They
then were called, as a group, to the office and met
with Garza, Ortiz, and three other management rep-
resentatives. The employees were asked why they did
not work the extra hour. Naraes stated that he told the
Respondent that he was obeying the schedule that
Garza had posted. Rivera testified that, ‘‘we told them,
‘[b]ecause we had to respect that schedule that Juan
Garza posted.’’’ Lopez stated that he told the Respond-
ent that ‘‘we didn’t stay there because Juan Garza had
posted a schedule and he didn’t want one minute more
or one minute less from that.’’ Diaz testified that his
answer was that ‘‘we had to respect’’ the schedule
posted by Garza. The employees were then discharged
for failing to work the extra hour.
The judge found no evidence that there was any
concerted plan of action among the employees or that
any one of them relied on any other when each of
them punched out and left work. He further found that
the decision to leave work, rather than work overtime,
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 See Daniel Construction Co., 277 NLRB 795 fn. 4 (1985).
5 Their failure to discuss their response among themselves and to
speak as one is explained by the fact that without warning, Ortiz’
approached each employee individually. Given that fact, we find that
no break occurred in the link between their original concerted protest
over the reduced work hours and their individually asserted reasons
for refusing to work the overtime.
was made by each employee on an individual basis
and could not be deemed concerted. The judge also de-
termined that the employees did not register any com-
plaint with the Respondent over the requirement that
they work overtime, and that the employees’ actions
amounted to an attempt to determine for themselves
what hours they would work. The judge concluded that
this conduct was in defiance of their supervisor, and
as such, was insubordination, not protected activity.
The General Counsel argues that although there was
no discussion among the four employees about the di-
rective to work an hour longer than indicated on the
schedule or about what response they should make to
the directive, the four individuals gave identical re-
sponses and took identical action in response to the di-
rective. The General Counsel argues that the conduct
was concerted even though there was no concerted dis-
cussion.
The General Counsel also contends that the Re-
spondent believed that the activity was concerted. In
this regard, the General Counsel asserts that the Re-
spondent at all times treated these employees as a sin-
gle group. The General Counsel notes that when the
schedule was changed in early September, the employ-
ees were told as a group and they apparently protested
as a group. When the directive to work an extra hour
was given on September 24, the employees gave iden-
tical responses and engaged in identical action. The
Respondent then told them as a group not to punch in
the next morning. Finally, the General Counsel notes,
on September 25, the Respondent met with the em-
ployees as a group, received either a group response
or identical responses as to why the employees did not
work the extra hour, and then fired the employees as
a group.
Further, the General Counsel contends that the con-
duct in which the employees engaged was protected
under the Act, arguing that the employees’ refusal to
remain for another hour was not insubordination but
rather a protest concerning hours of work, and thus
protected strike activity.
The Respondent argues that the judge’s decision is
correct, and that the definition of concerted activity has
not been met in the present case because there is no
evidence that any employee was acting with, or on the
authority of, any other employee.
We find that the General Counsel has made a prima
facie showing that the employees engaged in concerted
activity, or at least, that the Respondent believed that
the employees’ activity was concerted.4 Further, we
find that the General Counsel has established a prima
facie case that the conduct that the employees engaged
in was protected under the Act. Accordingly, we find
that the judge erred in granting the Respondent’s mo-
tion to dismiss at the close of the General Counsel’s
case-in-chief. In support of these findings, we rely on
the following factors.
The employees on the day shift were gathered to-
gether as a group in early September and told by
Garza as a group of the new scheduling policy. Ac-
cording to the testimony of employee Diaz, ‘‘[w]e told
him that was not going to be enough time to finish the
work.’’ (Emphasis supplied.) Thus, it appears that a
group protest to the change was made, and that this
concerted protest was directly communicated to the
Respondent.
Although there is some variance in the employees’
recollection of what happened on September 24, their
testimony establishes that, a few minutes before the
scheduled quitting time of 4:30 p.m., Ortiz approached
three of the four individually and told them to work
another hour. Ortiz then approached the four as a
group, either while they were punching out or imme-
diately thereafter, and told them not to punch in the
following morning, but rather to wait for him at the
dining tables.
On September 25, the employees were again gath-
ered as a group. They were jointly asked why they had
refused to work overtime. They replied that they were
following the orders given them by Garza. After this
response was given, the group of employees was fired.
By these facts, the General Counsel has dem-
onstrated a prima facie case that, not only was the pro-
test concerning working hours concerted, but the em-
ployees concertedly attributed their refusal to work
overtime to the new schedule. Thus, although they did
not not act as a group in refusing to work overtime in
response to Ortiz’ request,5 all four reacted in an iden-
tical fashion: they refused to work; and Naraes, Diaz,
and possibly Lopez attributed their refusal to Garza’s
clear instructions in early September. This is the same
reason that all the employees voiced the following
morning, prior to their discharge, when they were once
again called together by the Respondent and asked
why they had acted as they did. Indeed, Rivera testi-
fied that, ‘‘we told them, ‘[b]ecause we had to respect
that schedule that Juan Garza posted.’’’ (Emphasis
supplied.)
We will find that individual action is concerted
where the evidence supports a finding that the con-
cerns expressed by the individual are logical outgrowth
of the concerns expressed by the group. See Salisbury
Hotel, 283 NLRB 685, 687 (1987); Every Woman’s
Place, 282 NLRB 413 (1986), enfd. mem. 833 F.2d
1012 (6th Cir. 1987). Here, the employees’ individual
1039MIKE YUROSEK & SON, INC.
6 Sawyer of Napa, Inc., 300 NLRB 131 (1990).
7 Id.
8 Member Raudabaugh joins his colleagues in their reversal of the
judge’s decision to grant the Respondent’s motion to dismiss. How-
ever, he bases his denial solely on the fact that the General Counsel
has established a prima facie case that the Respondent believed that
the employees’ response to the directive to work overtime was con-
certed. Member Raudabaugh also agrees that a concerted refusal to
work overtime in the circumstances of this case would be protected.
responses to Ortiz’ request that they work overtime on
September 24, logically relate to their concerted protest
over Garza’s reduction in their schedule only a few
weeks earlier. Moreover, the Respondent’s actions in
treating the employees as a group when they punched
out on September 24 and again the next day, support
the inference that the Respondent believed the employ-
ees were engaged in concerted activity. See Daniel
Construction Co., supra. Thus we conclude that the
judge erred in finding that the General Counsel failed
to establish a prima facie case that the employees’ ac-
tions were concerted.
In addition, we disagree with the judge’s finding
that the activity engaged in by the employees, even if
concerted, was not protected. Concededly, it is not
crystal clear, at this stage of the litigation, whether the
employees were protesting (1) the Garza reduction in
hours, (2) the Ortiz direction that they work an extra
hour, or (3) a combination of the two, i.e., they felt
that they were being subjected to inconsistent require-
ments. In any event, it is clear that a protest about any
or all of the foregoing would be a protest about hours
of work.
Employees have a right to engage in a concerted re-
fusal to work, even when the assignment is to work
overtime. Only when employees repeatedly refuse to
perform mandatory overtime does their conduct be-
come unprotected by the Act because that conduct con-
stitutes a recurring or intermittent strike, which
amounts to employees unilaterally determining condi-
tions of work.6 In the instant case, the employees re-
fused to work overtime on only one occasion. There
was no indication that they were planning to intermit-
tently refuse to work overtime thereafter. In these cir-
cumstances, the employees’ concerted refusal to work
overtime on September 24 was protected by the Act.7
Accordingly, we reverse the judge’s ruling granting
the Respondent’s motion to dismiss, and remand the
case to the judge to reopen the record for further ap-
propriate action and to issue a decision consistent with
the findings in this Decision and Order.8
ORDER
It is ordered that this case is remanded to the admin-
istrative law judge to reopen the record for further ap-
propriate action and, at the close of the record, to issue
a decision consistent with this Decision and Order.
propriate action and, at the close of the record, to issue
a decision consistent with this Decision and Order.
Bernard Hopkins, for the General Counsel.
Ronald H. Barsamian and Richard B. Galtman (Finkle, Dav-
enport & Barsamian), of Fresno, California, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. I heard this
case in Bakersfield, California, on April 11, 1991. The com-
plaint, which issued on December 12, 1990, alleges Respond-
ent discharged four employees on September 25, 1990, be-
cause they engaged in protected concerted activities on Sep-
tember 24, thereby violating Section 8(a)(1) of the Act.
On April 11, 1991, I granted the Respondent’s motion to
dismiss the complaint on the ground the General Counsel
had failed to prove a prima facie case, i.e., that the alleged
discriminatee’s conduct was neither concerted nor protected.
On April 19, 1991, the General Counsel filed a motion to set
due dates on motion to dismiss complaint. On April 23,
1991, during a conference call in which I informed the par-
ties that I was disposed to grant the General Counsel’s mo-
tion, it was agreed between the parties that the General
Counsel would file a brief on or before May 15, 1991, and
that Respondent would file a reply brief on or before May
27, 1991. My Order setting time for filing briefs in accord-
ance with the parties’ agreement issued on the date of the
conference call agreement. Timely briefs by each of the par-
ties were received, have been carefully considered and found
to be both informative and helpful.
Upon the entire record in the case, including the oral argu-
ments and posthearing briefs, I reaffirm my earlier ruling.
This decision will set forth the basis of that ruling and per-
mit the General Counsel to file exceptions with the Board in
Washington, D.C.
FINDINGS AND CONCLUSIONS
Juan Garza and Jamie Ortiz are the Respondent’s ware-
house manager and dock foreman, respectively, and admitted
supervisors. Santos Diaz, Antonio Lopez, Rafael Naraes, and
Jose Rivera are the alleged discriminatees, all of whom testi-
fied. At the time they were terminated, Diaz was a forklift
operator, and the other three were loaders. It appears from
the record testimony that sometime in early September, the
four employees were informed by Garza that their hours
were being reduced and that a work schedule would be post-
ed so that they would know when to start and leave work.
Naraes testified he complained about the reduction in hours.
On September 24, all four men were scheduled to leave
at 4:30 p.m. Shortly before 4:30 p.m., Ortiz approached
Diaz, Naraes, and Lopez separately and told each to work an
extra hour. Diaz declined and left because he was scheduled
to work only until 4:30 p.m. Naraes testified he told Ortiz
that Garza had fixed the schedule and that was the schedule
he had to follow. Rivera testified that Ortiz didn’t tell him
not to leave at 4:30 p.m., but that Lopez told him Ortiz had
told Lopez that the men were going to work another hour.
Instead, he picked up his sweater and punched out. Lopez
testified that when he was ready to punch out, Ortiz told him
to work an hour more. He punched out and left instead. Ri-
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vera testified that the men didn’t discuss leaving among
themselves, and Lopez and Naraes confirmed the fact that no
one said anything in response when Ortiz told them, after
they had punched out and were leaving, that they should not
punch in the following morning and that Ortiz would meet
them in the lunchroom.
When the men reported the following day, they were
asked why they hadn’t worked the extra hour the day before,
to which a response was made that Garza had fixed the work
schedule and that was the schedule they had to follow. They
were then discharged for failing to work the extra hour.
Discussion
Section 8(a)(1) of the Act defines as unfair labor practices
acts of employers which interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section
7 of the Act. Section 7 gives employees certain organiza-
tional and bargaining rights and the right to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection . . . . ‘‘The General Coun-
sel argues that when employees take identical action, al-
though taken independently of each other, they are engaging
in a concerted activity. He argues that their simultaneous
leaving the Respondent’s premises without working the extra
hour constitutes a protest. The Respondent argues that the
General Counsel ‘‘failed to establish any communication, or
mutual understanding or expression [among the employees]
and, therefore . . . failed to meet its burden by establishing
facts amounting to concerted activity.’’ It further argues that
even in instances where employees have discussed among
themselves their desire to protest certain employment prac-
tices, the employees must clearly communicate their shared
demands to the employer, which they failed to do here.
There is a common thread in the cases relied on by the
General Counsel. In each, there was a group decision to pro-
test, and the motive for leaving was conveyed to the em-
ployer. In E. B. Malone Corp., 273 NLRB 78 (1984), the
employees discussed the change in policy regarding their use
of the telephone and agreed to leave the job at the regular
time in protest rather than work an hour overtime. The rea-
son for their leaving was conveyed to the employer. In
Smithfield Packing Co., 258 NLRB 261 (1981), employees
walked out to protest the employer’s commitment to limit
their working hours for that day. They discussed leaving
among themselves and informed a supervisor of their mo-
tives for leaving. In Daniel Construction Co., 277 NLRB 795
(1985), four employees ‘‘engaged in a work stoppage in pro-
test over being denied permission to leave the jobsite during
a driving, freezing rain which caused them to become wet
and cold.’’ They had ‘‘discussed their mutual concerns about
their discomfort and safety, made simultaneous requests for
early-out passes, left the worksite together when their re-
quests were denied, rode the same trucks to the parking area,
agreed to meet at the personnel office, and jointly discussed
their concerns about the adverse working conditions with in-
dividuals in the personnel and payroll offices.’’ In J. P.
Hamer Lumber Co., 241 NLRB 613 (1979), the undisputed
testimony established that the employees ‘‘discussed among
themselves the common problem posed by their many hours
of overtime and what their response should be’’ to the shared
problem, all of which was conveyed to the employer. In Nu
Dawn Homes, 289 NLRB 554 (1988), the employees were
found to have been engaged in ‘‘concerted’’ activities in cir-
cumstances where they ‘‘shared their concerns about the Re-
spondent’s overtime practices with one another as well as
bringing it to management’s attention on more than one oc-
casion.’’ In Interlink Cable Systems, 285 NLRB 304 (1987),
three production workers and two supervisors were docked
15 minutes for returning late from lunch and, confronted as
a group, issued warning notices which they were requested
to sign before returning to work. The entire group protested
signing and were told they had to sign before resuming
work, which they refused to do. Consistent with the facts in
the other cases relied on by the General Counsel, the facts
in Interlink reveal a group protest which was made known
to the employer. While it was found that the members of the
group had indeed acted in concert when they refused to sign
the warning slips, it was further found that the concerted ac-
tion was not protected since the group had attempted to dic-
tate for themselves which of management’s ‘‘orders or terms
of conditions of employment it would observe.’’ In so find-
ing, Administrative Law Judge Irwin Kaplan, whose findings
and conclusions were adopted by the Board, discussed Bird
Engineering, 270 NLRB 1415 (1984). In that case ‘‘employ-
ees concertedly ignored, as unfair, a newly established com-
pany rule, effective immediately, prohibiting them from leav-
ing respondent’s facility during their work shifts. Prior to this
time, employees had followed a practice of punching in and
out from lunch when leaving and returning to the facility.
One of these employees complained to the respondent that
the rule was unfair and noted that he did not have his lunch
inside the plant (presumably because the new rule was an-
nounced that day). The employees ignored respondent’s
warnings, clocked out in protest, and were discharged. In
finding that the employees acted concertedly but were unpro-
tected in the manner they elected to defy the new rule, the
Board reasoned, in pertinent part, as follows:
These employees did not engage in a strike, with-
holding of work, or other permissible form of protest
to demonstrate their disagreement with the Respond-
ent’s rule. Instead they simply chose to ignore the rule
in direct defiance of the direction and warnings of man-
agement. By treating the rule as a nullity and following
their pre-rule lunchtime practice they did not partici-
pate in a legitimate protected exercise but rather en-
gaged in insubordination. These employees were at-
tempting both to remain on the job and to determine for
themselves which terms and conditions of employment
they would observe. [Emphasis added.]
It is clear from the evidence presented by the General
Counsel in the instant case that Supervisor Ortiz ‘‘ap-
proached three of the alleged discriminatees’’ separately and
told each that he was to work an extra hour. The fourth em-
ployee was told by one of the other three that Ortiz had said
the men were going to work another hour. In defiance of the
order, and without discussing the matter between themselves,
the men punched out and left. It is clear from their testimony
that they did not discuss among themselves either working
overtime or leaving or engaging in any type of concerted ac-
tivity. It is further clear that there was no group spokesman
and that the group did not register a protest, unless, as the
1041MIKE YUROSEK & SON, INC.
1 268 NLRB 493 (1984).
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.
General Counsel argues, their punching out and leaving at
the same time can be considered as one.
In order to prove a ‘‘concerted activity,’’ it is necessary
to demonstrate that the activity was for the purpose of induc-
ing or preparing for group action to correct a grievance or
complaint. Mushroom Transportation Co. v. NLRB, 330 F.2d
683 (3d Cir. 1964). In Meyers Industries, 281 NLRB 882
(1986) (Meyers II), affd. sub. nom. Prill v. NLRB, 835 F.2d
1421 (D.C. Cir. 1987), the Board reconsidered its decision in
Meyers I,1 on remand from the U.S. Court of Appeals for
the District of Columbia Circuit, and stated that it intended
Meyers I to be read as fully embracing the view of
concertedness exemplified by the Mushroom Transportation
line of cases and reiterated that its definition of concerted ac-
tivity in Meyers I, encompassed those circumstances in
which individual employees seek to initiate or induce or to
prepare for group action, as well as individual employees
bringing truly group complaints to the attention of manage-
ment. The Board went on to state in Meyers I, that ‘‘indi-
vidual employee concern, even if openly manifested by em-
ployees on an individual basis, is not sufficient evidence to
prove concert of action.’’ There is no evidence in the instant
case that there was any concerted plan of action between the
employees or that any of them relied on any other when each
punched out and left work. Nor is there any evidence to indi-
cate that the refusal of one to work overtime was intended
to enlist the support of the other employees. Their decisions
to leave rather than work overtime were made by each em-
ployee on an individual basis and cannot be deemed con-
certed. Further, no complaint was registered with the Re-
spondent over the requirement they work overtime, but rath-
er, as in Interlink Cable Systems and Bird Engineering, the
employees attempted to determine for themselves what hours
they would work in defiance of their supervisor. Such con-
duct amounts to insubordination and is not protected by the
Act.
Accordingly, for failure to prove a prima facie case, I
granted Respondent’s motion to dismiss the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The complaint in Case 31–CA–18500 is dismissed in its
entirety.