McDonald's Corp.

National Labor Relations Board - Board Decisions

Nov 20, 1972

200 N.L.R.B. 359 (N.L.R.B. 1972)

MCDONALD'S CORPORATION 359
McDonald 's Corporation and its wholly-owned subsidi-
ary, McDonald's of Kahala and ILWU Local 142
McDonald's Corporation and its wholly -owned subsid-
iary, McDonald 's of Ala Moana and ILWU Local
142. Cases 37-CA-685 and 37-CA-686
November 20, 1972
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On August 18, 1972, Administrative Law Judge 1
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs, and
in addition Respondent filed an answering brief to
the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondents, McDonald's Corpo-
ration and its wholly-owned subsidiaries, McDo-
nald's of Kahala and McDonald's of Ala Moana,
Honolulu, Hawaii, their officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Trial Examiner : Based upon a charge
filed in Case 37-CA-685 on January 5, 1972 , as amended
on March 30, 1972, by ILWU Local 142, hereinafter
referred to as the Union , and on a charge filed in Case
37-CA-686 on January 18, 1972, as amended on March 30,
1972, by said Union, the consolidated complaint herein
was issued on April 18, 1972. The complaint alleges that
McDonald's Corporation and its wholly-owned subsidiary
corporations, McDonald's of Kabala and McDonald's of
Ala Moana, as a wholly integrated enterprise, violated
Section 8(a)(1) and (3) of the Act. By their answer
McDonald's Corporation and its aforesaid subsidiary
corporations deny that they committed the unfair labor
practices alleged in the complaint.
Pursuant to notice, the hearing was held in Honolulu,
Hawaii, on May 23, 24, and 25, 1972, before the
undersigned, duly designated as Trial Examiner. Appear-
ances were entered on behalf of all of the parties. Briefs
were received from the General Counsel and McDonald's
Corporation on July 7, 1972, which were carefully
considered.
Upon the entire record' in this proceeding and my
observation of the witnesses as they testified, I make the
following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
McDonald's Corporation, a national retail outlet with its
principal place of business in Oakbrook, Illinois, is
engaged in the State of Hawaii in the operation of food
and beverage stores. During the year preceding the
issuance of the complaint, it had, in the course and
conduct of its business operations, received gross revenues
in excess of $500,000 and purchased supplies valued in
excess of $10,000 which were manufactured outside the
State of Hawaii. McDonald's of Kahala, a Hawaii
corporation and a wholly-owned subsidiary of McDonald's
Corporation, is engaged in the operation of a drive-in
restaurant in Honolulu, Hawaii. During the year preceding
the issuance of the complaint, it, in the course and conduct
of its business operations, received gross revenues in excess
of $500,000 and purchased supplies valued in excess of
$10,000 which were manufactured outside the State of
Hawaii. McDonald's of Ala Moana, a Hawaii corporation
and a wholly-owned subsidiary of McDonald's Corpora-
tion, is engaged in the operation of a drive-in restaurant in
Honolulu, Hawaii. During the year preceding the issuance
of the complaint, it, in the course and conduct of its
business operations, received gross revenues in excess of
$500,000 and purchased supplies valued in excess of
$10,000 which were manufactured outside the State of
Hawaii.
As is admitted, each of said corporations is, and at all
times material herein has been, an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act. As is
further admitted by all three corporations, at all times
material herein they have had common owners and
managers who have formulated and administered a
common labor relations policy for said entities and they
have constituted a single integrated business enterprise.
Consequently, the three corporations collectively, herein-
after referred to as the Respondent, are an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
I The complaint was amended during the course of the hearing and an
unopposed motion to dismiss par. VII(b) of the complaint was granted at
the close of G.C.'s case
200 NLRB No. 57
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE LABOR ORGANIZATION INVOLVED HEREIN
ILWU Local 142, which is the Charging Party in this
proceeding and is hereinafter referred to as the Union, is,
and has been at all times material herein , a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
The unfair labor practices alleged in the complaint fall
into three categories: (1) that Respondent violated Section
8(a)(1) of the Act by "unlawfully enforcing a no-solicita-
tion rule," 2 by unlawful interrogation and by threatening
its employees with discharge for engaging in union
activity; (2) that Respondent unlawfully reduced the hours
of employment of its employees, Robert Matsuyama and
Joan Yoshiwara, because of their union activities; and (3)
that Respondent discriminatorily discharged employees
Terrance Tokuuke and Matsuyama because of their union
activities.
It appears that the Union's organizational drive at
various of Respondent's stores commenced at least as early
as mid-June 1971. Following is a consideration of the
various allegations in the complaint of unlawful conduct
by Respondent.
A. Paragraph VI(a): Allegation that Respondent
"unlawfully enforced a no-solicitation rule" by the
Conduct of Peter Luke
Tokuuke, who commenced his Union's organizational
efforts in mid-June 1971, credibly testified that in late
October or early November 1971, he attempted to talk to
employee Lorri Weiner about the Union in front of a
bowling alley next to Respondent's Kahala restaurant. She
told him that she had to go into the office and within 5 or
10 minutes Peter Luke, swing manager at the Kahala
restaurant, came out and asked him to come into the office
of the restaurant. Both Luke and Tokuuke testified to the
incident and in their testimony they both stated that Luke
pointed to the sign which set forth the no-solicitation rule.
Although Tokuuke did not so testify, Luke stated on the
stand that he told Tokuuke that "there was a rule saying
that there was no solicitation allowed on our property."
Although the paragraph in the complaint referring to the
incident alleges that Luke warned the employee that he
could not engage in union activity outside Respondent's
premises, it appears that General Counsel in his brief has
abandoned that allegation, but instead argues that Luke
admitted to stating to the employee an unlawfully broad
interpretation of the no-solicitation rule. While this
contention was not alleged, it appears that the incident was
fully litigated and that Respondent, through its supervisor,
admitted making the above statement. Respondent in its
brief contends that the allegation stated in the complaint
was not proved, This contention is meritorious since a
reasonable interpretation of Luke's conduct would appear
to be that he was merely warning Tokuuke that he could
not bring his organizational activities into Respondent's
store. However, his warning against solicitation "on our
2 It appears that there is no contention on the part of G C that the no-
solicitation rule promulgated by Respondent is unlawful but rather the
property" was too broad to be lawful since it was not
limited to nonwork areas and on nonwork time . Montgom-
ery Ward & Co., 162 NLRB 369, 379.
Respondent denies that Luke was a supervisor within the
meaning of the Act. It appears from the record, particular-
ly the credited testimony of Deborah Gee and the
admission of Luke (that he , as swing manager , was "in
charge of the store"), that Luke was a supervisor within the
meaning of the Act at the time of the incident.
Consequently, it is concluded that by Luke's conduct
Respondent interfered with, restrained and coerced em-
ployees within the meaning of Section 8(a)(1) of the Act.
B. Paragraph VI(b): Allegation that Respondent
"unlawfully enforced a no-solicitation rule by the
Conduct of Donald Scott"
It is alleged that the no-solicitation rule was unlawfully
enforced in that Donald Scott, manager of the Kahala
restaurant, warned Tokuuke not to "engage in union
activity in an area outside" restaurant premises . It appears
that Respondent has a rule prohibiting employees from
"loitering" in its restaurants when they are off duty. It
further appears that General Counsel does not contend
that the rule itself is violative of the Act.
On or about December 3, according to the credited
testimony of Tokuuke and Scott, Scott followed Tokuuke
out of the restaurant and warned him that he would hate to
fire him for loitering. Tokuuke had been in the restaurant
on two or three occasions that day although he was not on
duty. Scott made no reference to solicitation and it appears
that Tokuuke could only have reasonably inferred that
Scott was warning him about loitering and not about
solicitation outside Respondent 's premises . Consequently,
it is concluded that General Counsel has failed to prove by
a preponderance of the evidence the allegation in para-
graph VI(b) of the complaint.
C. Paragraph VI(d): Allegation that Respondent
"threatened employees with discharge if they engaged
in union activity"
This allegation is predicated upon testimony with respect
to a meeting of employees held by Respondent at the Ala
Moana restaurant on December 12, 1971. A former
employee, Marlene Ragsdale, and Matsuyama testified
that at the meeting, Dan Shiraishi, Respondent's area
supervisor, stated to the employees, in effect, that any
employee active on behalf of the Union would be
terminated. A number of Respondent 's witnesses, includ-
ing two nonsupervisory employees, denied that Shiraishi
made a statement to that effect. It appears that Shiraishi
did state that employees could be terminated for violating
Respondent's no-solicitation rule and that it was so
broadly stated that Ragsdale and Matsuyama might well
have misinterpreted Shiraishi's statement . The denials of
the testimony of Ragsdale and Matsuyama are credited. It
is concluded, therefore, that General Counsel has failed to
prove by a preponderance of the evidence the allegation in
paragraph VI(d) that Respondent threatened employees
contention is that through its supervisors Respondent stated an unlawfully
broad interpretation of the rule.
MCDONALD'S CORPORATION 361
with discharge if they engaged in union activity, but, as set
forth herembelow, credited testimony with respect to
Shiraishi's reference to solicitation supports a finding that
Respondent violated paragraph VI(g) of the complaint.
D. Paragraph VI(g): Allegation of Too Broad an
Application of the No-Solicitation Rule
(on December 12)
Based upon the testimony of Respondent's witness,
Curtis Young, the complaint was amended to allege in
paragraph VI(g) thereof that on December 12, Respondent
through the conduct of Shiraishi stated too broad an
application of the no-solicitation rule. Young testified that
at the aforesaid meeting on December 12 Shiraishi stated,
in referring to the no-solicitation rule, "anybody caught
soliciting anything in the store would be grounds for
termination." 3 Consequently, it is found that the record
supports a finding that the General Counsel has proved the
allegation in paragraph VI(g) of the complaint. This broad
an application of a no-solicitation rule is violative of
Section 8(a)(1) of the Act. Montgomery Ward & Co., supra.
E. Paragraph VI(c): Allegation that Respondent
`promised to eliminate an employee's reduction in
working hours if she would abandon her union
activity"; and Paragraph VII(I): Allegation that
Respondent Reduced the Hours of Employment of
Joan Yoshiwara Because of her Union Activity4
Yoshiwara, who began her employment at the Kahala
restaurant at the end of October 1971 and who is still an
employee of Respondent, testified that she engaged in
organizing activity on behalf of the Union. She further
testified that at the end of November she saw that her
schedule for the following week was for a lesser number of
hours than she had formerly worked, and that she
approached Scott, the manager, and asked to talk to him
about the reduction in her hours. Her testimony continues
as follows:
... and then I said "I think we both know that it
is not my attitude but it is my feelings about the
Union," and he just sort of nodded and then we had
this long talk about all kind of stuff and then at the end
of it he said "Well, I will give you your hours back if
you promise not to do anything else that will put my
job in jeopardy."
So then I said "Well, I don't know what is going to
put your job in jeopardy because I am not in your
position and I have to do what I believe in," and then I
said "I think you are taking this Union thing too
personally," and he said "Yes, maybe I am."
A. So then he said "Well, we will see what we can
do," and so then I got my hours back.
On cross-examination she testified that she worked
reduced hours for approximately one week after her talk
with Scott. Yoshiwara further testified that Scott told her
"his job was in jeopardy if this Union thing came through,"
which testimony she contradicted shortly thereafter.
Scott testified that some time prior to his conversation
with Yoshiwara he anticipated a decrease in business in the
latter part of November, so he singled out the employees
whom he regarded to be poorer performers for reduction of
hours to meet the anticipated reduction in workload and
that he selected Yoshiwara among them because of her
poor attitude and method of working. The record shows
that, during the period involved, the hours of 26 out of a
total of 59 employees were reduced. Consequently, it is
concluded that Respondent had an economic reason for
reducing the hours of work of close to half of the Kahala
employees.
The issues with respect to the above allegations are
whether or not Yoshiwara was selected for reduction in
hours because of her union activity and whether or not
Scott promised her that he would restore her hours if she
gave up her union activity.
The record will not support a finding that Respondent
had any knowledge of Yoshiwara's union activities prior to
their aforementioned conversation.However, if Yoshiwara's
testimony were to be credited, it would afford a basis
for finding that Scott admitted having such knowledge and
reduced her hours because of it. Finding such an admission
would be predicated, for the most part, on her testimony
that when she accused Scott of reducing her hours because
of her union activity he "just sort of nodded." Scott
testified that when she made the accusation he shrugged
his shoulders, that he did not want to start an argument
with her in front of other employees in the immediate
vicinity. To find that Scott nodded instead of shrugged is a
somewhat tenuous basis for determining that Scott
admitted the discriminatory nature of his action with
regard to Yoshiwara's working hours. Scott appeared to be
a credible witness with respect to his reasons for selecting
Yoshiwara and that, coupled with the evident economic
reasons for reducing Yoshiwara's hours aswell as those of
25 other employees, leads the Trial Examiner to the
following conclusions: (a) that Yoshiwara was not discrim-
inatorily selected for reduction of hours, and (b) that Scott
did not promise restoration of her working hours if she
abandoned her union activity, but rather his promise was
predicated on improvement in her attitude and work
performance. Consequently, it is concluded that the
General Counsel has failed to prove by a preponderance of
the evidence the allegations in paragraphs VI(c) and VII(c)
of the complaint.
F. Paragraph VI(e): Allegation of Unlawful
Interrogation by Kinney, and Paragraph VI(f):
Allegation of Two Incidents of Unlawful Threats by
Kinney 5
Matsuyama testified to conversations he had with
Kinney, manager of the Ala Moana store, in December
1971, which relate to the above allegations. It appears that
3 Although Shiraishi's testimony contradicts that of Young as to what he 4 These allegations are considered together since, they are interrelated
stated with regard to the no-solicitation rule, it is found that Young's 5 Paragraph VI(f) of the complaint was amended during the course of the
testimony should be credited as to what Shiraishi communicated to the hearing to allege two incidents instead of one (based on the testimony of
employees at the meeting. Matsuyama)
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the first conversation occurred on or about December 20,
and it further appears that the G.C. relies upon Matsuya-
ma's testimony with respect to this conversation for the
proof of paragraph VI(e) of the complaint and one of the
two incidents alleged in paragraph VI(f) of the complaint.
Both Matsuyama and Kinney testified to this first
conversation.
It appears from the testimony of both that Kinney was
aware of Matsuyama's organizational activities on behalf
of the Union. It also appears from the testimony of both
that there was a discussion about whether his activities on
behalf of the Union jeopardized his job. Their testimony is
at variance, however, on two crucial points. Matsuyama
testified that Kinney asked him how the union drive was
coming along and, also, that Kinney told him that Shiraishi
wanted to fire him because of his union activity, but that
he (Kinney) persuaded Shiraishi to keep Matsuyama
because he was a good worker and there were no grounds
for firing him. Respondent argues that this testimony of
Matsuyama should not be credited in that there was no
mention of either matter in his pretrial statements. While
there is no mention in his pretrial statements (of which
there were four) of Kinney inquiring as to the union drive,
it is noted that in his pretrial statement of January 19, 1972
(the first paragraph of the second page thereof), Matsuya-
ma did allude to a statement by Kinney that Shiraishi
wanted to get rid of him because of his union activity.
Kinney denied that he made any such statement. However,
it is noted that Kinney's denial was somewhat equivocal,
that when he was asked if he had made such a statement he
replied that he "did not think so." On these two points,
Matsuyama was the more convincing of the two witnesses
and, therefore, his testimony is credited.
Matsuyama testified to another conversation on Christ-
mas day which was very similar to the conversation he had
with Kinney on December 20. On the other hand, Kinney
denied that there was such a conversation and, further-
more, credibly testified that the restaurant was closed on
Christmas day. It is noted that there is no reference in
Matsuyama's pretrial statements to this conversation (on
December 25). With respect to this aspect of their
testimony, Kinney was the more convincing of the two
witnesses and his denial that this conversation took place is
credited.
It is concluded from the above findings of fact that on
December 20 Kinney unlawfully interrogated Matsuyama
in violation of Section 8(a)(1) of the Act as alleged in
paragraph VI(e),6 and it is further concluded that Kinney
unlawfully threatened Matsuyama in violation of Section
8(a)(1) of the Act by his statement on December 20 that
Shiraishi wanted to discharge him because of his union
activities (one of the two incidents alleged in paragraph
VI(f) of the complaint).?
G. Paragraph VII(a): Allegation that Respondent
Unlawfully Reduced Matsuyama's Hours of
Employment
It appears that for the semimonthly payroll period
ending November 30, 1971, and the payroll period ending
December 15, 1971, Matsuyama's hours of employment
were considerably reduced as compared with the periods
prior and subsequent thereto. Shiraishi testified that he
learned of Matsuyama's union activity in December 1971.
Matsuyama testified that he commenced working for the
Union about the middle of November 1971. There is
nothing in the record upon which a finding can be
predicated that Respondent was aware of Matsuyama's
union activity prior to December 1971. Matsuyama's
testimony as to the reduction of his hours is considerably
confused. Furthermore, it appears from his testimony that
he was injured on December 2, 1971, and was certified by a
doctor a few days later as unable to work for "the
remainder of the week." It appears that there was some
confusion as to when he was medically fit to return to work
and whether the work schedule was completed for the
second week of the period before it was ascertained that he
was fit for work.
Based upon the above findings of fact, it is concluded
that there is no basis for finding that Matsuyama's
reduction in working hours for the period between
November 15 and November 30, 1971, was unlawfully
motivated. It appears that for the period ending December
15 Matsuyama worked 14-1/2 hours, that he was unable to
work for medical reasons for over a week, that when he
asked Kinney for more hours of work Kinney said, "Sure,"
and that thereafter Matsuyama was apparently given a full
schedule of work.
The Trial Examiner is of the opinion that Matsuyama's
testimony concerning his reduction of hours is too
confused, particularly with respect to the period he was not
working because of his medical injury, to permit a finding
that the reduction of hours for the period between
November 30 and December 15, 1971, was unlawfully
motivated. Therefore, it is concluded that General Counsel
has failed to prove by a preponderance of the evidence the
allegation in paragraph VII(a) of the complaint.
H. Paragraph VIII(a): Allegation that Tokuuke was
Unlawfully Discharged on December 23, 1971
On December 23, Tokuuke was notified that he was
discharged for the use of obscene language in the presence
of a customer. The General Counsel contends that the
discharge was motivated by Tokuuke's activity on behalf
of the Union.
The record clearly reveals that, at the time of his
discharge, management was aware that Tokuuke was
active in the Union's organizational drive. It is well
established, however, that an employee's activity on behalf
of a union does not insulate him from discharge for cause.
Savannah Electric and Power Company, 197 NLRB No. 118.
6 His inquiry as to the union drive constituted interference, restraint and 4 Kinney's reassurance that he persuaded Shiraishi not to discharge
coercion within the meaning of Sec 8(a)(1), particularly in view of the Matsuyama did not eradicate the threatening character of his statement of
finding that it was made in context with Kinney's statement of Shiraishi's Shiraishi's attitude
desire to get rid of Matsuyama.
MCDONALD'S CORPORATION
In essence, the issue with respect to Tokuuke's discharge is
whether the reason ascribed by Respondent for his
discharge was a pretext to disguise an unlawful motive (his
union activity).
It appears from credited testimony that, on December
16, Luke, swing manager at the Kahala restaurant, was
advised by two employees that on the previous night
Tokuuke had "sworn in front of customers," that Tokuuke
had said that "he was wondering what those fucking guys
in the back were doing" and that Luke was "screwed up"
in the way he was operating the restaurant that night .8
Luke asked the employees to give him a written statement
of what they had told him. It appears that he received from
them a joint statement as well as individual statements
confirming what they had reported.
On December 20, Tokuuke was summoned to the
restaurant office where Scott, Luke and Shiraishi were
present. Shiraishi questioned him about his "swearing up
front" on December 15 and according to Tokuuke's
testimony he replied that he didn't recall swearing on that
day. However, Tokuuke subsequently testified that he
"could have told" Shiraishi later that he had "sworn or
cursed in front of customers." Shiraishi told him that he
would make a further investigation and, if he had been
swearing, action would be taken against him, but if the
reports of his swearing were not true he would apologize to
Tokuuke. Shiraishi credibly testified that later that evening
he received the joint statement of the two employees
accusing Tokuuke of swearing in front of customers and
decided to fire him.
In addition to management's knowledge of Tokuuke's
union activity and Respondent's antiunion animus which
are demonstrated by the record, General Counsel argues
that the reason advanced by Respondent for Tokuuke's
discharge was a pretext because swearing was common
among Respondent's personnel and that Tokuuke's denial
that he swore in front of a customer should be credited. It
appears that Respondent did tolerate use of obscene
language by its personnel, but it does not appear that
Respondent tolerated it in front of customers. The Trial
Examiner credits the testimony that swearing in front of a
customer is considered by the Respondent as a serious
offense in view of the type of clientele it serves.
As to whether or not Tokuuke did, in fact, use obscene
language in front of customers, it should be noted that this
is not the issue, but, rather, the issue is whether Respon-
dent in good faith believed that Tokuuke had committed
such an offense. It appears that in the circumstances
Respondent did have reasonable grounds to believe that
the offense was committed. (It is noted that Tokuuke's
denials that he swore in front of customers were not
convincing, and that he admitted that he could have told
Shiraishi that he had done so.) Respondent made a
reasonably thorough investigation of the charge, gave
Toktiuke an opportunity to discuss the matter with
management, and had no reason for refusing to accept at
face value the statements of the employees that Tokuuke
had committed the offense for which he was discharged.
Since it cannot be found that Tokuuke would not have
8 It appears that the service was unusually slow at the time he was
charged with making the remarks ascribed to him.
363
been discharged but for his union activities, it is concluded
that the General Counsel has failed to prove by a
preponderance of the evidence that Respondent unlawfully
discharged Tokuuke as alleged in paragraph VIII(a) of the
complaint.
I. Paragraph VIII(b): Allegation that Matsuyama
was Unlawfully Discharged on January 12, 1972
It appears that Respondent decided to discharge Matsu-
yama on January 12, 1972, but that he was not notified of
the decision until he called the Respondent on January 16,
1972. It appears from Shiraishi's testimony that his
decision to discharge him was predicated on information
that Matsuyama had taken a vacation without leave
including the first week in January 1972 and had failed to
report for the several days he was scheduled to work that
week. According to Matsuyama's testimony, he had been
granted a 10-day vacation (covering the period in question)
by the store manager, Larry Leanio, and General Counsel
argues that the reason advanced by Respondent for
Matsuyama's discharge was a pretext, that the motive
therefor was Matsuyama's activity on behalf of the Union.
Matsuyama testified to the events leading up to his
discharge as follows: On December 27, 1971, he decided to
request a 3-day leave of absence and spoke to the assistant
manager, Miles Ichinose, about it and Ichinose told him to
either get the manager's approval or leave a written request
for the time off on the cabinet above the manager's desk
for action by the manager; he prepared a written request
and posted it on top of the cabinet; he checked back on
December 29 and it was not there; he spoke to Ichinose
about it and was told his request must have gotten lost and
that he should speak to the manager; he decided to ask for
10 days instead of 3 and went to the manager's office and
asked Leanio for the 10-day leave to which Leanio agreed;
Leanio told him to get the request in writing so that he
would have a record for his file; he prepared the written
request9 and gave it to Leanio; he left on his vacation and
he did not return until January 9, 1972; on the previous
day he had his brother call the restaurant and request an
extension of his leave; his brother told him that he had
spoken to Leanio and Leanio refused to give him any
extension and warned that Matsuyama would be terminat-
ed if he did not return on January 9; he himself called the
restaurant and spoke to Pedro Repelio, an assistant
manager, who told him that he had better be at the
restaurant by 4:30 on January 9 or he would be replaced;
he reported to the restaurant on January 9; Ichinose, after
asking him if he enjoyed his vacation, told him that he was
not scheduled to work but that he would allow him to work
that night; according to the schedule he was not assigned
to work the following week; on the 16th he called the
restaurant and inquired of Repelio when he was scheduled
to work; Repelio informed him that he was terminated;
when he asked why he was terminated Repelio, after some
delay, informed him that he was terminated because he
had overextended his vacation; and the next day he saw
Leanio and asked him what the reason was for his
9 It appears that the "request" was, in essence, a note expressing thanks
for having been granted the vacation
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge and was told that it was because he had
overextended his vacation.
Testimony was elicited from four of Respondent's
witnesses (Shiraishi, Leanio, Ichinose and Kinney) bearing
upon the issue of Matsuyama's discharge.
Shiraishi testified as follows: As area supervisor he
passes upon all terminations; on January 10 he was at
Respondent 's restaurant in Hilo when he received a
telephone call from Leanio; Leanio told him that he had
received a call from a person who said he was Matsuya-
ma's brother requesting an extension on Matsuyama's
leave of absence ; Leanio told him (Shiraishi) that he did
not know of any leave of absence, that Matsuyama had not
reported to work for several days for which he had been
scheduled (ostensibly the previous week) and that he would
like to replace him; he told Leanio to go ahead and
terminate Matsuyama ; he thought about it and 15 minutes
later called Leanio and told him not to terminate
Matsuyama, that he would have to make a phone call (to
Respondent's attorney); that he "felt" that Matsuyama
"was doing a little soliciting for the Union" and that he
might get in trouble with the Union if he discharged
Matsuyama; he remembered that Kinney was the former
manager of the Ala Moana restaurant, so he asked Kinney
if he had granted Matsuyama a leave of absence which
Kinney denied; a day or two later he conferred with the
attorney for the Respondent who informed him that if it is
normal procedure to terminate employees for failure to
report to work as scheduled, he should go ahead and
terminate Matsuyama; and on January 12 he directed
Leaniq to discharge Matsuyama. It should be noted at this
point that the parties stipulated that it is the practice of
Respondent to terminate employees who fail to report for
work as scheduled.
Leanio's testimony with respect to his telephone conver-
sationwith Shiraishi on January 10 and Shiraishi's decision
on January 12, 1972, to discharge Matsuyama is consistent
with the testimony of Shiraishi. Leanio further testified
that he did not know at the time he talked to Shiraishi (on
January 10) that Matsuyama had worked the evening of
January 9. Also, Leanio denied Matsuyama's testimony
that he had granted Matsuyama a 10-day vacation and
testified that he was not at the restaurant on December 29
when Matsuyama claimed that he obtained Leanio's
approval for vacation. Leanio further testified that he
assumed the job of manager of the Ala Moana restaurant
on January 1, 1972 (although he had reported to the
restaurant a week or more prior thereto). Kinney, who had
been I:eanio's predecessor as manager of the Ala Moana
restaurants testified that the last day he worked in the Ala
Moanaai restaurant was December 26, and if Matsuyama
had asked him for a vacation at that time he would
probably have referred him to Leanio.
Iclurilose testified as follows: He took over the scheduling
of the employees on. January 1, 1972, and he scheduled
Matsuyama on three different days after January 2 (and
apparently prior to January 9). Ichinose's testimony
corrobgrates,that of Matsuyama about Matsuyama report-
ing to work on January 9, and that he told Matsuyama
that, although he was not scheduled to work, he would let
him work that night. Ichinose further testified that he
asked Matsuyama to prepare a new schedule of his
available hours . Ichinose also testified that when he made
up the work schedule, on January 2, for that week, he did
not see the "request" which Matsuyama testified he had
left with Leanio relating to the granting of his 10-day
vacation and the first time he saw the note was on January
10; and when he found the note he did not schedule
Matsuyama from January 10 on. However , Ichinose
testified on cross-examination that he generally makes up
the schedule on a Wednesday or Thursday for the
following week . It is noted that January 10 fell on a
Monday and Matsuyama credibly testified that when he
worked on January 9, he observed that he was not
scheduled to work for the following week . It is found from
Ichinose's testimony that he saw Matsuyama's above-
mentioned "request" prior to Matsuyama 's return on
January 9.
The testimony of Respondent's witnesses in support of
Respondent's contention that it discharged Matsuyama
because of his absence from work without leave is not
convincing . Leanio's testimony that he did not assume the
job of manager until January 1 and that he did not grant
Matsuyama a 10-day vacation is not credited , as such
testimony is inconsistent with his admission on cross-
examination that, when he talked to Matsuyama 's brother
on January 8, he told him to relay a message to
Matsuyama that he "wouldn't be able to hold a position
open for him if he didn't come back in time." This was in
response to a request for an extension of Matsuyama's
vacation and it follows therefrom that Leanio must have
granted the vacation . It is not reasonable for the phrase,
"come back in time," to have been used if the vacation to
which Matsuyama testified had not been granted.
Matsuyama was a convincing witness with respect to the
events leading up to his discharge and his testimony with
respect thereto is credited. The record clearly indicates that
Respondent had knowledge of Matsuyama's union activity
and, as found hereinabove, Kinney had threatened
Matsuyama that Shiraishi wanted to get rid of Matsuyama
because of his union activity but there was no basis for
discharging him for good cause . In the circumstances, it is
found that the reason advanced by Respondent for
Matsuyama's discharge was a pretext and that Respondent
was motivated to discharge him because of his union
activity.
It is, therefore , concluded that Matsuyama's discharge
was in violation of Section 8(a)(3) and (1) of the Act, as
alleged in paragraph VIII(b) of the complaint. The General
Counsel does not contend that the failure to schedule
Matsuyama for work during the week of January 9 to 15
was unlawful and it does not appear that it would be
appropriate to find that the failure to do so was
discriminatorily motivated . Consequently, it is found that
the discriminatory discharge commenced at the time
Matsuyama was notified thereof , January 16, 1972, instead
of January 12, as alleged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondent set forth in
section III , above , occurring in connection with its
MCDONALD'S CORPORATION 365
operations set forth in section I, above, have a close,
intimate and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
It will be recommended that the Respondent be ordered
to cease and desist from engaging in the unfair labor
practices found herein and take certain affirmative action,
as provided in the recommended Order below, designed to
effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged Robert Matsuyama, it will be recommended
that Respondent be ordered to offer him immediate and
full reinstatement to his former job, or, if his job no longer
exists, to a substantially equivalent position without
prejudice to his seniority or other rights and privileges. It
will be further recommended that Respondent be ordered
to reimburse him for any loss of pay he may have suffered
as a result of his discriminatory discharge in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289,
291-293, together with 6 percent interest thereon in
accordance with Isis Plumbing & Heating Co., 138 NLRB
716.
Upon the basis of the foregoing findings of fact and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. McDonald's Corporation, McDonald's of Kahala,
and McDonald's of Ala Moana are individually employers
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and are collectively an employer (herein
referred to as the Respondent) engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Robert Matsuyama on January 16,
1972.
4. Respondent violated Section 8(a)(1) of the Act by
the following conduct:
(a) Stating too broad an interpretation of its no-solicita-
tion rule in late October or early November of 1971 and on
December 12, 1971.
(b) Unlawfully interrogating Robert Matsuyama on or
about December 20, 1971, and
(c) Threatening Matsuyama on or about December 20,
1971, by informing him that the area supervisor wanted to
discharge him for his union activities.
5. The General Counsel has failed to prove by a
preponderance of the evidence the allegations in the
following paragraphs of the complaint: paragraphs VI(b),
10 As noted hereinabove, par. VII(b) of the complaint was dismissed
during the course of the hearing.
it In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
VI(c), VI(d), VII(a) and VII(c), and one of the two
incidents alleged in VI(f).10
6. The General Counsel has failed to prove by a
preponderance of the evidence the allegation in paragraph
VIII(a) of the complaint that Terrance Tokuuke was
discriminatorily discharged.
Upon the foregoing findings of fact, conclusions of law
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended: 11
ORDER
McDonald's Corporation and its wholly-owned subsidi-
aries, McDonald's of Kahala and McDonald's of Ala
Moana, their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in ILWU Local 142, or
any other labor organization, by discriminating against
their employees in regard to hire and tenure of employ-
ment or any other term or condition of employment.
(b) Unlawfully interpreting their no-solicitation rule to
encompass nonwork time and nonwork areas.
(c) Unlawfully interrogating employees with respect to
their protected activities.
(d) Threatening employees with discharge for engaging
in union activities.
(e) In any other manner interfering with, restraining or
coercing employees in the exercise of rights under Section 7
of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer to Robert Matsuyama immediate and full
reinstatement to his former job, or, if his job no longer
exists, to a substantially equivalent position without
prejudice to his seniority or other rights and privileges.
(b) Make Matsuyama whole for any loss of pay suffered
by him by reason of his discriminatory discharge in the
manner set forth in the section hereinabove entitled "The
Remedy."
(c) Immediately notify Robert Matsuyama, if presently
serving in the Armed Forces of the United States, of his
right to full reinstatement, upon application after discharge
from the Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act.
(d) Upon request, make available to the Board or its
agents for examination and copying all payroll and other
records containing information concerning their backpay
obligation under-this recommended Order.
(e) Post at their restaurants in Honolulu, Hawaii, known
as McDonald's of Kahala and McDonald's of Ala Moana,
copies of the notice attached hereto as "Appendix." 12
Copies of said notice on forms furnished by the Regional
Director for Region 20, after being duly signed by an
authorized representative of Respondent, shall be posted
deemed waived for all purposes
12 In the event that the Board's 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 "
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Respondent immediately upon receipt thereof and
maintained by it for a period of 60 consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted . Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered , defaced or covered by any other
material.
(f) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of the receipt of this
Trial Examiner 's Decision , what steps Respondent has
taken to comply herewith.13
The allegations of the complaint which are found not to
have been sustained should be, and are hereby, dismissed.
13 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read.
"Notify the Regional Director for Region 20, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith "
WE WILL NOT threaten employees with discharge for
engaging in union activities.
WE WILL NOT in any other manner interfere with,
restrain or coerce employees in the exercise of rights
under Section 7 of the Act.
WE WILL offer to Robert Matsuyama immediate and
full reinstatement to his former job, or , if his job no
longer exists, to a substantially equivalent position
without prejudice to his seniority or other rights and
privileges and make him whole for any loss of pay
suffered by him as a result of his discriminatory
discharge.
MCDONALD'S CORPORATION
MCDONALD'S OF KAI-IALA
MCDONALD 'S OF ALA
MOANA
(Employer)
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in ILWU
Local 142, or any other labor organization, by
discriminating against our employees in regard to hire
and tenure of employment or any other term or
condition of employment.
WE WILL NOT unlawfully interpret our no-solicita-
tion rule to encompass nonwork time and nonwork
areas.
WE WILL NOT unlawfully interrogate employees with
respect to their protected activities.
Dated By
(Representative) (Title)
We will immediately notify Robert Matsuyama , if present-
ly serving in the Armed Forces of the United States, of his
right to full reinstatement , upon application after discharge
from the Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act.
This is an official notice and must not be defaced' by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office , 1311 Kapiolani Boulevard,
Suite 308, Honolulu, Hawaii 96814 , Telephone 808-546-
5100.