MIKE YUROSEK & SON, INC. and SANTOS DIAZ, an Individual

           Case 31-CA-18500

NATIONAL LABOR RELATIONS BOARD

306 N.L.R.B. 1037; 1992 NLRB LEXIS 396; 140 L.R.R.M. 1001; 1992 NLRB Dec. (CCH) 17207; 306 NLRB No. 210 (March 31, 1992)

DECISION AND ORDER


By James M. Stephens, Chairman; Dennis M. Devaney, Member; John N. Raudabaugh, Member

OPINION:
  
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 granted this motion, and on July 10, 1991, issued a decision in support of his ruling, finding that the activity engaged in by the employees was neither concerted nor protected. We disagree with his  [*2]  decision to grant the Respondent's motion to dismiss the complaint.

The Respondent is engaged in the business of processing, packing, and distributing fresh vegetables. In early September 1990, n1 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 employees 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. n2 The crew was comprised of Rafael Naraes, Antonio Lopez, Jose Rivera, Santos Diaz, and Jesus Cougas. n3 Naraes, a 9-year employee, 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  [*3]  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 approached by Ortiz around 4:25 p.m. and told to work an extra  [*4]  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 employees were punching out and Diaz heard him say to Lopez "[I]f you punch out, I [will] wait for you tomorrow [at] the . . . dining table."

All four employees testified that there was no discussion 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 reported 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 representatives. 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 Respondent that "we didn't stay there because Juan Garza had posted a schedule and he didn't want one minute more or  [*5]  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, was made by each employee on an individual basis and could not be deemed concerted. The judge also determined that the employees did not register any complaint 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.