Mike Yurosek & Son, Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1993

310 N.L.R.B. 831 (N.L.R.B. 1993)

831
310 NLRB No. 139
MIKE YUROSEK & SON, INC.
1 On November 3, 1992, Administrative Law Judge James S.
Jenson issued the attached supplemental decision. The Respondent
filed exceptions and a supporting brief and the General Counsel filed
an answering brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 In his supplemental decision, the judge characterized the four dis-
charged employees as ‘‘economic strikers’’ and stated that because
the record failed to show that the Respondent replaced the four em-
ployees prior to their reporting for work on the morning of Sep-
tember 25, the Respondent was obliged to reinstate them when they
offered to return to work. In light of the fact that these employees
were discharged, we need not pass on the judge’s finding that the
employees were unreplaced economic strikers.
4 306 NLRB 1037.
5 Member Raudabaugh concurred solely on the basis of this latter
ground.
6 The Respondent excepts to the characterization of the extra hour
the employees were requested to work as ‘‘overtime,’’ stating that
the employees were scheduled to work only a 6-1/2-hour day and
Continued
Mike Yurosek & Son, Inc. and Santos Diaz. Case
31–CA–18500
March 25, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The principal issue in this case is whether the Re-
spondent discharged the involved employees for en-
gaging in protected concerted activity.1
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,2 and con-
clusions3 and to adopt the recommended Order.
On March 31, 1992, the Board issued a Decision
and Order4 remanding this proceeding to the adminis-
trative law judge to reopen the record for further ap-
propriate action and, at the close of the record, to issue
a decision consistent with that Decision and Order. In
that decision the Board reversed the judge’s earlier de-
cision granting the Respondent’s motion to dismiss the
complaint. That motion was made at the end of the
General Counsel’s case-in-chief and was based on the
assertion that the General Counsel failed to establish a
prima facie case.
In its prior decision, the Board held that the General
Counsel had established a prima facie case of con-
certed activity based on the facts that the employees,
as a group, had protested the change in their work
schedule when it was introduced in early September,
and that their identical actions in refusing to work
overtime on September 24 were a logical outgrowth of
that concerted protest. Further, the Board found that
the Respondent’s actions in treating the employees as
a group supported the inference that the Respondent
believed that the employees were engaged in concerted
activity.5
As noted in our earlier decision, when the schedule
was changed by Manager Garza in early September,
the employees were told as a group and they protested
to management as a group. On September 24, 1990,
the employees were approached individually by Super-
visor Ortiz and told to work an extra hour. Each em-
ployee reacted in an identical fashion by punching out
at the originally scheduled time. The employees were
then approached by Ortiz at the timeclock as a group
and told not to punch in the next morning.
On September 25, Respondent called the employees
as a group to the office, where they were called in in-
dividually and asked why they did not work the extra
hour as directed. Each employee stated it was because
he had to honor the schedule as previously posted by
Garza. The employees waited as a group while the
management representatives decided their fate, and
were then called in individually and terminated.
In our earlier decision, we stated that, on September
25, the employees were interviewed by the Respond-
ent’s representatives as a group and fired as a group.
The additional evidence presented at the reopened
hearing indicates that the employees were interviewed
individually and terminated individually. The General
Counsel does not dispute this evidence. However, such
evidence does not negate the fact that the employees
were otherwise treated as a group throughout this inci-
dent and is insufficient to rebut the General Counsel’s
prima facie case of concerted activity or the inference
that the Respondent believed that they were engaged in
concerted activity.
Our earlier decision also found that the General
Counsel had established that the employees’ refusal to
work the extra hour requested of them on September
24, 1991, was protected activity. We reaffirm our con-
clusion that the refusal to work was protected. In this
regard, we conclude that the refusal was not part of an
intermittent work stoppage. The employees refused to
work the extra hour on only one occasion. There was
no indication that the employees’ refusal was one of
a series of intermittent strikes. See Polytech, Inc., 195
NLRB 695, 696 (1972). Nor was the refusal to work
overtime an effort by employees to set their own terms
and conditions of employment. The employees had
been given one schedule by Manager Garza and were
then given contrary instructions by Supervisor Ortiz.
Thus, the employees were not trying to set their own
hours, they were simply protesting the apparent incon-
sistency in Respondent’s setting of hours.6
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
thus the extra hour requested of them was not ‘‘overtime’’ as de-
fined by any law or standard industrial practice. The issue here is
not whether the employees refused to work ‘‘overtime’’ or ‘‘extra
time,’’ but rather whether they were attempting to set their own
hours of work by engaging in an intermittent work stoppage.
7 The Respondent further excepts to the judge’s reliance on the in-
terpretation of Board case law as set forth in our original decision,
and to the judge’s failure to apply a Wright Line analysis to the facts
in this case. 251 NLRB 1083 (1980). In support of these exceptions,
the Respondent sets forth the same interpretation of Board case law
that we considered and rejected in our original decision. Further, we
find a Wright Line analysis inherent in the judge’s supplemental de-
cision. The General Counsel established by a preponderance of the
evidence that the employees’ protected concerted activity was the
reason for their discharges. The Respondent failed to present evi-
dence sufficient to establish that the discharges would have occurred
even absent the protected concerted activity. Accordingly, we adopt
the judge’s finding of a violation.
Member Raudabaugh joins his colleagues in their adoption of the
judge’s finding of a violation. However, as to the issue of concert,
he relies solely on the fact that the Respondent discharged the em-
ployees because it believed that the employees were acting
concertedly in refusing to work the extra hour. See Daniel Construc-
tion Co., 277 NLRB 795 fn. 4 (1985).
1 306 NLRB 1037.
2 Sometimes referred to in the record as Rafael Cachu and Rafael
Narez.
3 Garza’s employment terminated in March 1992. Thus, when he
testified at the reopened hearing, he was not in Respondent’s em-
ploy.
4 All dates are in 1990.
5 Cougas was not involved in the incidents at issue.
The Respondent also excepts to the judge’s finding
that the employees were protesting the directive given
by Ortiz to work an additional hour, despite the em-
ployees’ testimony that they were not ‘‘protesting’’
anything. How an employee subjectively characterizes
his or her own actions is not determinative in the
Board’s objective analysis of whether that employee
has engaged in protected, concerted activity. The
record shows that the employees were refusing to work
the extra hour because of Respondent’s inconsistency
concerning their hours of work. Viewed objectively,
this action is properly interpreted as a work protest.
Based on the above, we affirm the judge’s supple-
mental decision.7
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Mike Yurosek & Son, Inc.,
Lamont, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Bernard Hopkins, for the General Counsel.
Richard B. Galtman (Finkle & Barsamian), of Fresno, Cali-
fornia, for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. On July 10,
1991, I dismissed the complaint in this matter at the conclu-
sion of the General Counsel’s case-in-chief on the ground the
General Counsel had failed to prove a prima facie case, i.e.,
that the alleged discriminatee’s conduct was neither con-
certed nor protected. Upon the General Counsel’s exceptions,
the Board disagreed with my decision and remanded the case
to me to reopen the record for further appropriate action, and
at the close of the record to issue a decision consistent with
the Board’s Decision and Order.1 In accordance with the re-
mand order, the record was reopened and further hearing
held on July 9 and 10, 1992 in Bakersfield, California.
The parties were given full opportunity to introduce evi-
dence, examine and cross-examine witnesses, to argue orally,
and to file briefs. Both the General Counsel and Respondent
filed briefs which I have carefully considered.
Upon the entire record, including the initial and the re-
opened record, and from my observation of the witnesses and
their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Mike Yurosek & Son, Inc., a California corporation, is en-
gaged in the business of processing, packing, and distributing
fresh vegetables. It annually sells and ships goods and serv-
ices valued in excess of $50,000 to customers or businesses
located outside the State of California. It is admitted and
found that it is an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
II. ISSUE
Whether Santos Diaz, Antonio Lopez, Rafael Naraes,2 and
Jose Rivera were unlawfully terminated for engaging in a
protected concerted refusal to work overtime, or lawfully for
insubordination.
III. THE SETTING
Respondent’s operations are cyclical, having the lowest pe-
riod of production in August and September, building up to
a peak from October to February, and slowing down in
March and April, through mid-July. Depending on the cycle,
it employs from 800 to 1200 employees. At all times mate-
rial, Daryl Valdez was the vice president of human resources,
Med Garcia was personnel manager, Steve Beck was director
of production control, Juan Garza3 was warehouse manager,
and Jamie Ortiz was the dock foreman. All are alleged and
admitted to be Respondent’s agents and supervisors. In Sep-
tember 1990,4 the day-shift dock crew was comprised of
Narez, Lopez, Rivera, Diaz, and Jesus Cougas.5 In early Sep-
tember, Garza told the five employees on the day shift that
he was going to reduce their hours to approximately 36 hours
a week. Valdaz testified that the reduction in hours was
made because the amount of carrots coming into the plant
was at its lowest and it was necessary to reduce hours and/or
personnel. The employees protested that the reduction in
hours wouldn’t give them enough time to finish the work.
Garza responded they would have to work that schedule
833MIKE YUROSEK & SON, INC.
6 Meyers Industries, 268 NLRB 493 (1984) (Meyers I), and Meyers
Industries, 281 NLRB 882 (1986) (Meyers II), affd. sub nom. Prill
v. NLRB, 835 F.2d 1421 (D.C. Cir. 1987).
whether they liked it or not and that they were to punch out
at exactly the time he told them to punch out.
On September 24, consistent with the new schedule an-
nounced by Garza, the day-shift was scheduled to work from
10 a.m. to 4:30 p.m. Dock Foreman Ortiz testified that after
Garza told him to have the dock crew work an extra hour
that day, he asked each individually to do so during a break
from 3:30 to 3:45 p.m. He testified that when he asked Diaz
to stay an extra hour, Diaz gave a negative nod of his head
and said he was going to leave at 4:30. He claimed Nareas,
Lopez, and Rivera each said ‘‘Okay’’ when asked to stay an
extra hour. He testified that as he observed the four of them
leave at 4:30, he asked if they were going to stay another
hour and that Lopez responded in the negative, that they
were going home. Ortiz’ testimony is inconsistent with that
of the four employees whom I credit. Naraes testified he
wasn’t approached by Ortiz until about 4:25 p.m. that day
and told to work another hour, and that he responded that
Garza had fixed the schedule and that it had to be done that
way. He then went to the timeclock and punched out with
the other three. Diaz testified that when Ortiz approached
him about 4:25 p.m. and was told to work an extra hour that
he said no ‘‘because Juan Garza told us that we had to leave
at [a] . . . certain hour.’’ While Lopez’ testimony is not
clear, it appears he told Ortiz that he had to respect what he
was told before by Garza. Rivera testified that he was putting
ice on a truck a few minutes before 4:30 p.m. and was un-
able to hear what Ortiz said. He asked Lopez what Ortiz
said, and Lopez told him that Ortiz wanted them to stay for
another hour.
All four proceeded to punch out at 4:30 p.m. As they were
walking away, Ortiz asked if they were going to stay and
Lopez responded ‘‘no.’’ Ortiz told the four that if they
punched out, they were to wait for him in the dining room
the next day.
All four employees testified there was no discussion
among them about what response to make to the overtime re-
quest between the time that Ortiz told them to work another
hour and the time they punched out.
The next day, September 25, Ortiz told Garza that the four
hadn’t stayed the additional hour the day before. Garza told
Ortiz to have the men wait, that he wanted to talk to them.
The four were then called to the personnel office where they
were called in individually and interviewed by Garza, Ortiz,
Valdez, Beck, and Garcia. When each was asked why he
didn’t work the extra hour, each responded that he was fol-
lowing the schedule. Valdez testified that after the inter-
views, while the employees were waiting in the ‘‘anteroom,’’
the company officials concluded the men had been insubordi-
nate and, based on company policy, should be terminated.
The employees were then terminated for insubordination for
refusing to work as directed. The record contains as Re-
spondent’s Exhibit 4, an employee handbook which lists as
an example of acts which would immediately precipitate in-
voluntary terminations, ‘‘Refusal to work as directed (insub-
ordination).’’
Discussion
The Respondent argues the individual actions taken by the
employees in deciding not to work overtime was not con-
certed, citing cases cited by me in my initial decision where-
in I found their action was not concerted. Relying on the fact
each of the four employees testified that no discussion or
planning took place between them, it is claimed the record
is barren of evidence or testimony that the employees acted
as a group or took any action remotely resembling a joint
employee endeavor. Respondent also argues it didn’t per-
ceive the individual responses as concerted, nor did it treat
the employees as a group. Seeking to distinguish the instant
case from those cited by the Board in its initial decision, spe-
cifically Salisbury Hotel, 283 NLRB 685 (1987) and Every
Woman’s Place, 282 NLRB 413 (1986), enfd. mem. 833
F.2d 1012 (6th Cir. 1987), Respondent argues that unlike the
employees in those cases, the four employees in the instant
case did not discuss their refusal to work overtime or other-
wise make ‘‘common cause’’ with each other or any fellow
employees. It is argued that those cases are misapplications
of Meyers I and Meyers II,6 and hence bad law. I am, of
course, bound by the Board’s interpretation of those cases
and its initial decision in this case.
Respondent further argues that the individual actions of
the employees did not amount to a protest as evidenced by
the fact each testified he was not protesting anything but in-
stead obeying the work schedule. However, in the initial de-
cision the Board stated that while ‘‘it is not crystal clear, at
this stage of the litigation, whether the employees were pro-
testing (1) the Garza reduction in hours, (2) the Ortiz direc-
tion that they work an extra hour, or (3) a combination of
the two, i.e., they felt they were being subjected to incon-
sistent requirements. . . . In any event such a protest about
any or all of the foregoing would be a protest about hours
of work.’’ At this stage of the proceedings it is clear that
they were protesting the Ortiz direction that they work an
extra hour. Whether their response in refusing to work the
overtime is viewed as a concerted protest because it was un-
scheduled or a protest against a last-minute request to do so,
their concerted refusal to work unscheduled overtime was en-
titled to the protection of the Act.
In the initial Decision and Order in this case the Board
went on to state:
Employees have the right to engage in a concerted
refusal to work, even when the assignment is to work
overtime. Only when employees repeatedly refuse to
perform mandatory overtime does their conduct become
unprotected by the Act because that conduct constitutes
a recurring or intermittent strike, which amounts to em-
ployees unilaterally determining conditions of work.6 In
the instant case, the employees refused to work over-
time on only one occasion. There was no indication that
they were planning to intermittently refuse to work
overtime thereafter. In these circumstances, the employ-
ees concerted refusal to work overtime on September
24 was protected by the Act.7 [306 NLRB at 1039]
6 Sawyer of Napa, Inc., 300 NLRB 131 (1990).
7 Id.
Employees may protest and seek to change any term or
condition of employment, including working overtime, by
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 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.
8 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
National 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.’’
engaging in a work stoppage. If they haven’t been replaced
while they were away from work, they must be reinstated
when they offer to return. The Respondent here could have
acted immediately after the four employees refused to work
overtime by replacing them with other employees. It failed
to do so. When they left work on September 24, the four be-
came ‘‘economic strikers’’ and entitled to reinstatement un-
less the Respondent determined what their intentions were
for the future and warned them that it would regard future
refusals to work overtime as grounds for disciplinary action.
The record in the reopened hearing failing to show the four
employees were replaced prior to reporting for work the
morning of September 25, and the Respondent having failed
to establish that the employees were planning to intermit-
tently refuse to work overtime thereafter, the Respondent was
obligated to reinstate them when they offered to return on
September 25. Sawyer of Napa, supra; First National Bank
of Omaha v. NLRB, 413 F.2d 921 (8th Cir. 1969), enfg. 171
NLRB 1145 (1968). I therefore find that the Respondent vio-
lated Section 8(a)(1) of the Act in discharging Diaz, Lopez,
Naraes, and Rivera because of their engagement in a work
stoppage, i.e., their refusal to work overtime on September
24.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaging in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By discharging Santos Diaz, Antonio Lopez, Rafael
Naraes, and Jose Rivera, the Respondent has interfered with,
restrained, or coerced employees in the exercise of rights
guaranteed in Section 7 of the Act, and has thereby engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
3. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) of the
Act, I shall recommend that the Respondent be ordered to
cease and desist therefrom and from any like or related man-
ner infringing upon its employees’ Section 7 rights, and to
take certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent violated the Act by dis-
charging Santos Diaz, Antonio Lopez, Rafael Naraes, and
Jose Rivera, I shall recommend that Respondent offer each
of them immediate and full reinstatement to their former po-
sitions or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
any other rights and privileges. I shall also recommend that
the Respondent make them whole for any loss of earnings
and other benefits they may have suffered as a result of their
unlawful discharges, with backpay to be computed in the
manner set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), and with interest to be computed in the manner set
forth in New Horizons for the Retarded, 283 NLRB 1173
(1987). I shall also recommend that the Respondent remove
from its records any reference to the unlawful discharges,
provide the discriminates with written notice of the removal,
and inform them that the unlawful discharges will not be
used as a basis for future personnel actions concerning them.
See Sterling Sugars, 261 NLRB 472 (1982).
On the basis of the foregoing findings of fact, conclusions
of law, and on the entire record in this proceeding, and pur-
suant to Section 10(c) of the Act, I issue the following rec-
ommended7
ORDER
The Respondent, Mike Yurosek & Son, Inc., Lamont,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees for striking or engaging otherwise in concerted pro-
tected activity.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Santos Diaz, Antonio Lopez, Rafael Naraes, and
Jose Rivera immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits suffered as
a result of the discrimination against them, in the manner set
forth in the remedy section of this decision.
(b) Remove from its files any reference to the unlawful
discharges of Santos Diaz, Antonio Lopez, Rafael Naraes,
and Jose Rivera and notify them in writing that this has been
done and that the discharges 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 copying, 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 Lamont California facility copies of the at-
tached notice marked ‘‘Appendix.’’8 Copies of the notice in
English and Spanish, on forms provided by the Regional Di-
rector for Region 31, 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 customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, 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.
835MIKE YUROSEK & SON, INC.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge, or otherwise discriminate against
any of you for striking or engaging otherwise in concerted
protected activity.
WE WILL NOT in any like or related manner interfere with
restrain, or coerce you in the exercise of the rights
quaranteed you by Section 7 of the Act.
WE WILL offer Santos Diaz, Antonio Lopez, Rafael
Naraes, and Jose Rivera immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed and WE
WILL make them whole for any loss of earnings and other
benefits resulting from their suspensions and discharges, less
any net interim earnings, plus interest.
WE WILL remove from our files any reference to the un-
lawful discharges of Santos Diaz, Antonio Lopez, Rafael
Naraes and Jose Rivera and notify them in writing that this
has been done and that the discharges will not be used
against them in any way.
MIKE YUROSEK & SON, INC.