N.L.R.B. v. Mike Yurosek & Son, Inc.

• Decision Date: 21 April 1995
• Docket Number: No. 93-70754,93-70754
• Citation: 53 F.3d 261
• Parties: 149 L.R.R.M. (BNA) 2094, 130 Lab.Cas. P 11,319 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIKE YUROSEK & SON, INC., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 261

53 F.3d 261

149 L.R.R.M. (BNA) 2094, 130 Lab.Cas. P 11,319

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIKE YUROSEK & SON, INC., Respondent.

No. 93-70754.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 1995.

Decided April 21, 1995.

Peter Winkler, Debroah E. Shrager, William Baudler, N.L.R.B., Washington, DC, for petitioner.

Richard B. Galtman, Barsamian & Associates, Fresno, CA, for respondent.

Petition for Enforcement of an Order of the National Labor Relations Board.

Before: BROWNING, BOOCHEVER, and BEEZER, Circuit Judges.

BOOCHEVER, Circuit Judge:

The National Labor Relations Board ("the Board") found that the company, Mike Yurosek & Son, Inc. ("Yurosek"), violated 29 U.S.C. Sec. 158(a)(1) by discharging four employees after they refused to obey their supervisor's directive to work an extra hour. The Board held that the employees' refusal to work constituted a protected concerted activity, and the Board ordered Yurosek to offer the employees reinstatement and backpay. The Board now seeks enforcement of its order. We affirm the Board's findings and grant enforcement of its order.

FACTUAL BACKGROUND

Mike Yurosek & Son, Inc., is a vegetable packing company. Santos Diaz, Antonio Lopez, Rafael Naraes, and Jose Rivera worked on the dock crew, and each had been employed by Yurosek between nine and fifteen years.

In early September 1990, warehouse manager Juan Garza announced to the dock crew members that he was reducing their hours to approximately thirty-six hours a week. Some of the employees complained that the new schedule would not provide "enough time to finish the work." Garza apparently responded: "That's the way it's going to be.... You are going to punch [out] ... exactly at the time that I tell you."

On September 24, pursuant to the new schedule, the crew was scheduled to work from 10:00 a.m. to 4:30 p.m. Shortly before 4:30, dock foreman Jaime Ortiz approached each of the four employees individually and instructed each to work an additional hour. All four employees refused to stay. They told Ortiz that they were required to follow the new schedule imposed by Garza. The employees then proceeded to punch out. Ortiz met them at the time clock and instructed them not to punch in the next morning but to meet him in the company dining hall.

The following day, the four employees were asked to wait in the company waiting room. Each employee was then individually called in turn into the personnel office and questioned by Garza, Ortiz, and three other company officers. When each employee was asked why he did not work the extra hour, each responded that he was adhering to the new schedule posted by Garza. After the interviews, the employees waited while the company officials discussed the matter. Each employee was then individually called back into the office and terminated for insubordination.

General Counsel for the National Labor Relations Board filed a complaint alleging that Yurosek violated 29 U.S.C. Sec. 158(a)(1) by discharging the four employees for engaging in protected concerted activities. The ALJ initially granted Yurosek's motion to dismiss on the ground that the employees' conduct was neither concerted nor protected. The Board, however, reversed and remanded the case for further consideration. The ALJ reopened the record and then found that the employees' conduct was protected and concerted and that Yurosek committed an unfair labor practice in discharging them. The Board affirmed the ALJ's decision and ordered

that the employees be reinstated and given backpay. The Board now seeks enforcement of its order. Yurosek seeks an order denying enforcement of the Board's order.

DISCUSSION

I. Substantial Evidence Supports the Board's Finding that Yurosek Violated 29 U.S.C. Sec. 158(a)(1)

Section 8(a)(1) of the National Labor Relations Act ("the Act"), 29 U.S.C. Sec. 158(a)(1) (1988), states that employers commit an unfair labor practice if they "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157." Section 157 guarantees employees the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. Sec. 157 (1988). An employer therefore violates the Act by discharging or disciplining employees for exercising their right to engage in protected concerted activities. Sierra Publishing Co. v. NLRB, 889 F.2d 210, 215 (9th Cir.1989).

The Board found that Yurosek violated the Act by terminating the four employees when they refused to work the extra hour, because their conduct was both concerted and protected under the Act. The Board's order must be enforced "if the Board correctly applied the law and if its factual findings are supported by substantial evidence in the record as a whole." Id. Yurosek argues that there was insufficient evidence in the record to conclude that the employees' refusal to work the additional hour was a concerted or protected activity.

A. Concerted Activity

To be engaged in "concerted activity," an employee must act "with or on behalf of other employees, and not solely by and on behalf of the ... employee himself." Pacific Electricord Co. v. NLRB, 361 F.2d 310, 310 (9th Cir.1966). The Act does not require that "employees combine with one another in any particular way." NLRB v. City Disposal Sys., Inc., 465 U.S. 822, 835, 104 S.Ct. 1505, 1513, 79 L.Ed.2d 839 (1984). If "a single employee, acting alone, participates in an integral aspect of a collective process," the activity may nonetheless be considered "concerted" for purposes of the Act. Id.

Yurosek argues that the employees did not act in concert in refusing to stay the extra hour. Yurosek maintains that because the employees did not discuss a common plan of action among themselves or expressly communicate a "common cause" to their employer, their conduct was not concerted. Furthermore, Yurosek claims that the employees were not treated as a group at any time. Ortiz approached each of them individually on the dock; each gave his own reason for refusing to stay; ¹ and the company officers subsequently interviewed and discharged each employee separately.

The Board maintains that although the employees may not have discussed or expressed a shared motive for refusing to stay, they acted as a group and subsequently were treated as a group. When the employees punched out at the time clock at 4:30, Ortiz We find the Board's arguments persuasive. The record indicates that all four employees punched out in each other's presence at the time clock. All were long-term employees who, upon being asked, had worked beyond the scheduled quitting times on various occasions prior to the schedule change in early September 1990. On this occasion, however, all four made an unprecedented refusal to work, citing the schedule change as the reason. The fact that there was no express discussion of a group protest or "common cause" is not dispositive. In Daniel Construction Co., 277 N.L.R.B. 795 (1985), the Board held that four employees' spontaneous refusal to continue working in freezing rain constituted concerted activity. "Although [there was] no verbal interaction between them--that is, ... no common goal they each expressed--implicit in the actions of all was a joining of action, if only by 'me, too,' to protest [the employer's] request that they work." Id. at 798-99. An inference that this same type of implicit group endorsement occurred in the instant case supports the Board's decision. Thus, the Board did not err in finding that the employees' joint refusal to work was concerted action.

told them not to punch in the next day. None of them, however, broke from the group to return to work, despite the warning that their conduct would result in discipline. The Board contends that the employees "implicitly" supported each other by leaving the workplace together. See El Gran Combo v. NLRB, 853 F.2d 996, 1002 (1st Cir.1988) ("Even where an action may look at first to be solely individual in nature, subsequent events may reveal implicit group endorsement."). Moreover, on the following day, the company officers gathered the four employees in the company waiting room. Upon being questioned, each gave the same reason for refusing to work: they had to respect the schedule posted by Garza. Merely because each employee was individually called into the personnel office, questioned, and then terminated, does not mean that each man's conduct was isolated from the others'.

Even if we concluded that the employees' conduct constituted merely individual activity, the Board was still entitled to find that their individual actions were concerted to the extent they involved a "logical outgrowth" of prior concerted activity. The lone act of a single employee is concerted if it "stems from" or "logically grew" out of prior concerted activity. See Ewing v. NLRB, 861 F.2d 353, 361 (2d Cir.1988); Salisbury Hotel, Inc., 283 N.L.R.B. 685, 687 (1987).

The Board contends that the employees' refusal to work was a logical outgrowth of their prior concerted protestations of the reduction in work hours when Garza originally announced the schedule change in early September. Diaz testified, "We told [Garza] that was not going to be enough time to finish the work." Naraes also testified that he complained about the reduction in hours. The Board argues that the employees' joint objections to the new schedule constituted prior concerted activity that not only indicated dissatisfaction with the way their work hours were being manipulated, but also gave rise to their subsequent refusal to work.

Yurosek claims that no such prior group protest occurred when Garza notified them of the schedule change. Garza testified that none of the employees complained or protested the reduction in hours. Therefore, according to Yurosek, there was no prior concerted activity from which the employees' subsequent refusal to work...