The Oceania Floating Restaurant

National Labor Relations Board - Board Decisions

Jan 31, 1974

208 N.L.R.B. 828 (N.L.R.B. 1974)

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wen Hwa Ltd . d/b/a The Oceania Floating Restau-
rant and Hotel, Restaurant Employees & Barten-
ders' Union, Local 5, AFL-CIO. Cases
37-CA-887, 37-CA-897-1, 37-CA-897-2, and
37-RC-1834
January 31, 1974
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On September 12, 1973, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.'
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 brief
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 Respondent , Wen Hwa, Ltd.
d/b/a The Oceania Floating Restaurant , Honolulu,
Hawaii, its officers , agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
IT IS FURTHER ORDERLD that the election conducted
on April 10, 1973, in Case 37-RC- 1834 be set aside
and that this proceeding be, and it hereby is,
remanded to the Regional Director for Region 20 for
the purpose of conducting a new election at such
time as he deems that circumstances permit the free
choice of a bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
i The Respondent on December 17, 1973, filed a motion with the
Regional Director to reopen and remand the instant case, 37-RC-1834,
with Case 37-RC-1922. alleging that the unit in Case 37-RC-1834 is
inappropriate 7 he motion has been referred to the Board Aside from the
untimeliness of Respondent's motion in that the matter adverted to Should
have been raised in the original representation proceeding , it is Board
practice to conduct second elections in the same unit as found appropriate
in the first election, as provided below Accordingly, we deny the motion
See Hemco Corporation, 207 NLRB No 119
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry, Wall Products,
Inc., 91 NLRB 544, enfd . 188 F 2d 362 (C A. 3, 1951 ). We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
JERROLD H. SHs.PIRo, Administrative Law Judge: The
consolidated hearing in these cases held on July 16 and 17,
1973, is based upon unfair labor practice charges filed by
the above-named Union in Case 37-CA-887 on March 23,
1973, in Cases 37-CA-897-1, 2, on April 11, 1973, and on
objections to conduct affecting the results of a representa-
tion election filed by the Union in Case 37-RC-1834 on
April 16, 1973. In Cases 37-CA-887 and 37-CA-897-1, 2,
a consolidated complaint issued on June 11, 1973, on
behalf of the General Counsel of the National Labor
Relations Board, herein called the Board, by the Regional
Director of the Board, Region 20, herein called the
Regional Director. An order was issued by the Regional
Director on the same date consolidating the Union's
objections to conduct affecting the results of the represen-
tation election conducted in Case 37-RC-1834, with the
aforesaid unfair labor practice cases for hearing"before an
Administrative Law Judge.
The consolidated complaint alleges that Wen Hwa Ltd.
d/b/a The Oceania Floating Restaurant, herein called the
Respondent or Employer, has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the National Labor Relations Act, herein called the Act.
Respondent answered the consolidated complaint denying
the commission of the alleged unfair labor practices.
The Union's objections to conduct affecting the results
of the representation election, in substance, allege that the
Employer engaged in conduct which interfered with the
holding of a free and fair election and constitutes grounds
for setting aside the election.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
posthearing brief filed by the Respondent, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Wen Hwa Ltd., the Respondent, is a corporation
operating a restaurant in the State of Hawaii under the
name of The Oceania Floating Restaurant. In the course of
its business, Respondent annually receives gross revenues
in excess of $500,000, and annually purchases and receives
supplies valued over $50,000 from suppliers in Hawaii who
in turn purchase and receive said supplies directly from
business enterprises located outside Hawaii. It is admitted,
and I find, that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Hotel , Restaurant Employees & Bartenders ' Union,
208 NLRB No. 106
OCEANIA FLOATING RESTAURANT
Local 5, AFL-CIO, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III. ME QUESTIONS PRESENTED
The ultimate questions presented in this consolidated
proceeding are:
1. Whethe", in violation of Section 8(a)(3) of the Act,
the Responde it discharged employees Irene Hirotsu, Gail
Matsumoto, and Su Lee Tin because it believed they were
supporting the Union in its efforts to organize the
Respondent's employees.
2. Whether, in violation of Section 8(a)(1) of the Act,
the Respondent threatened an employee with discharge if
she supported the Union, interrogated employees about
their union sentiments, and threatened another employee
with reprisals if he supported the Union.
3. Whether the aforesaid unfair labor practices, if
committed in whole or in part, constitute the type of
conduct sufficient to set aside the representation election
lost by the Union.
IV. TILE ALLEGED UNFAIR LABOR PRACriCEs
A. The Setting
Respondent since November 1972 has operated a
restaurant located in Honolulu. Hawaii. The Union in late
February 1973' commenced a campaign to organize the
restaurant's approximately 180 nonsalaried employees. On
March 12, the Union filed with the Regional Director a
representation petition in Case 37-RC-1834 seeking to
represent, and asking for an election among a unit of, these
employees. On March 30. the Respondent and the Union
entered into an agreement, approved by the Regional
Director, whereby a secret ballot election was scheduled to
be conducted by the Regional Director among the
nonsalarred employees on April 10 to determine whether
they wanted union representation. The election was
conducted as scheduled and the Union failed to receive a
majority of the ballots.
It is undisputed that the Respondent's president, its
manager, and its personnel director at management
meetings indicated that the Respondent was opposed to
the Union's effort to organize the restaurant.
B. The Discharge of Su Lee Tin 2
The General Counsel contends that Su Lee Tin was
discharged because the Respondent believed he was a
union sympathizer. He was discharged on April 9 after
having been employed as a helper in the kitchen for 2
weeks. His principal duty was to prepare the noodles, won
ton, used in the won ton soup, and to fill the waiters' orders
t All dates, unless otherwise specified refer to 1973.
s The facts pertaining to Su Lee Tin's discharge are based upon the
credible testimony of the Respondent's principal witness, Executive Chef
Shiu Fun Loui When testifying about Tin's employment history and the
events leading up to his discharge, Chef Loui impressed me as a more
trustworthy and reliable witness than Tin, In addition, his testimony
regarding Tin's language problem and unsatisfactory work was corroborat-
ed, in significant pan, by the testimony of wafter Ah Hot Lee. who
impressed me as an honest witness
829
for this soup. Also, he carried food and stacks of plates to
the kitchen.
The native language of the kitchen employees and the
waiters, except for Tin, was one of three Chinese
dialects-Cantonese, Hong Kong, and Chun Shan-which
are virtually interchangeable, if you understand one you
can easily understand the others. The waiters who dealt
with the public spoke and understood English, and the
kitchen employees, except for Tin, had a sufficient
understanding of English to understand the waiters. Tin
did not speak or understand English. His native language
was the Chinese dialect, Chew Chou, which the other
employees could not understand without much difficulty.
Tin was hired on March 24 by Shiu Fun Loui, the
executive chef in charge of the kitchen. Tin had no prior
experience working in a restaurant's kitchen and because
of the difference in their dialects, Chef Loui spoke Chun
Shan, Chef Loui had difficulty understanding Tin. Tin,
who was out of work, literally was crying for a job, so Chef
Loui hired him with the warning that his hire was
conditioned upon doing a good job.
During his 2 weeks of employment, Tin's work was
unsatisfactory. He ladled out too little or too much soup
with too few or too many won ton noodles. The waiters
complained. Also, he brought the wrong food and the
wrong size plates to the kitchen. The other kitchen
employees were not perfect, they committed errors, but'Tin
made more than the usual amount. Chef Lout was of the
opinion that Tin's inferior performance resulted from the
fact that he was unable to understand English and spoke a
Chinese dialect which was quite different from any of the
dialects spoken by the other employees. Chef Loui spoke to
Tin about his mistakes.
On April 8, Chef Loui decided to discharge Tin. On that
day, one of the waiters complained to him that Tin had
twice mistakenly given him too little soup for customers he
was serving. Chef Lout decided to discharge Tin for
unsatisfactory work and the next day, when he arrived for
work, Tin was informed by Chef Loui that he was
discharged. Chef Loui told him to find another job,
explaining that his work was not satisfactory, that there
was a problem of communication between Tin and the
other employees, including Chef Loui, and that the waiters
had complained about his mistakes.
Based on the foregoing. particularly the existence of
valid reasons for Tin's discharge, and the absence of
evidence that he engaged in any union activity or that the
Respondent believed he was a union sympathizer,3 I
conclude that Tin's discharge was motivated by sound
business considerations and not because of any unlawful
motivation. Accordingly, I shall recommend that this
portion of the consolidated complaint and the Union's
objections be dismissed.
i in this regard Tin testified that 3 or 4 days before he was discharged
that in answer to Chef Loui's question, "do you want to join the Union," he
replied in the affirmative , and that in response Lout threatened him with
economic reprisals. 7 he General Counsel has alleged this as a violation of
Section 8(a)(I) of the Act. Chef Lout specifically contradicted Tin and
testified that this conversation never took place Lout, as I previously
indicated, impressed me as being the more reliable and trustworthy witness
Accordingly, I shall recommend that this portion of the consolidated
complaint and the Union's objections be dismissed
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Discharge of Irene Hirotsu the executive assistant to Respondent's president, came to
her cash register and asked Hirotsu if she was " Irene."
Hirotsu answered in the affirmative, and Lau stated he had
heard her talking about the Union. Hirotsu informed Lau
that this was correct but that she was not the only
employee who talked about the Union and that when
fellow employees questioned her about the Union she
simply answered their questions. Lau told her not to do this
"on business time" and walked away.e
In order to understand the events which took place
immediately prior to the discharge of Hirotsu, it is
necessary to describe briefly the duties of the restaurant's
cashiers. Two cashiers are on duty, one on the upper level
and the other on the lower level. The waiters who serve
customers in several dining rooms are divided into two
groups, each assigned to a different cashier . A customer
pays the waiter, by cash or credit card, who transmits the
bill and payment to the cashier. The cashier rings up the
payment and, if payment is by credit card, looks to see if
the charge slip has been signed by the customer. If the bill
is over $100 or $150, depending on the credit card, the
cashier notifies the office which in turn, by phone,
determines whether the customer's credit is good for the
amount of the bill. Also, part of a cashier's normal duties
consists of posting the returned checks. Prior to starting
their day, the waiters are given consecutive numbered
customer checks by their assigned cashier. These numbers
are listed by the cashier on a sheet of paper and, as the
checks are returned and rung up, the cashier using this
sheet itemizes them into the amount spent for food,
beverage, tax, etc. In connection with the posting of the
checks, Office Manager Kaneshiro, as the result of the loss
of a check which apparently was never recovered,
instructed Hirotsu and another waitress in the presence of
General Manager Young, on approximately March 8,
according to the undenied and credible testimony of
Hirotsu, that "from now on any time checks were lost, to
check then and there while the people still was there. Don't
_wait."
On March 20, Hirotsu was assigned by Office Manager
Kaneshiro to train a new cashier, Katie Yamada. Yamada
was assigned to Hirotsu's register and, except for posting
the checks, was to perform all of the work under Hirotsu's
observation. Hirotsu posted the checks and during the
evening noticed that six checks had not been returned by
waiters-the checks before and after the six had already
been posted-and went upstairs to visit the other cashier to
determine whether the six checks had been taken by a
an untrustworthy witness. Moreover, his testimony about the alleged
warning to Hirotsu not to solicit on company time besides being vague was
internally inconsistent . Initially, Lee testified that he received the informa-
tion that Hirotsu was soliciting for the Union from a person whose name he
could not remember. Later , on cross-examination, he denied having been
told by anyone that Hirotsu was soliciting for the Union.
6 The March 14 Lau-Hirotsu conversation is based on the credible
testimony of Hirotsu . I reject Lau's testimony that he spoke to Hirotsu after
observing her 10 feet from her register speaking to a maintenance man, that
he determined she had given this maintenance man a piece of paper with the
name and phone number of a union agent , and in speaking with Hirotsu
told her he understood she had been passing around "these things" referring
to the piece of paper . Also, I reject his response to counsel 's leading
question that he told Hirotsu not to leave her work station to do things not
related to work. Lau, as previously indicated , was in general an
unimpressive witness in bearing and demeanor.
The General Counsel contends that Irene Hirotsu was
discharged because of her union activities. Hirotsu, an
active union adherent, from late in February until her
discharge on March 22 solicited numerous employees to
support the Union. It is undisputed that Respondent's
management, including the person who discharged her,
knew she was a union sympathizer who was actively
soliciting employees to support the Union.
Hirotsu, an experienced cashier, began work on January
29 as a cashier. She was hired and worked under the direct
supervision of Sue Kaneshiro, the office manager in charge
of the cashiers as well as the bookkeeping and accounting
employees. The other management people involved in
Hirotsu's discharge are Francis Lee, the restaurant's
personnel director, and Charles Lau, the assistant to
Respondent's president.4
The Union, as already indicated, commenced its organi-
zational campaign at the restaurant in late February, and
on March 12 filed a- petition with the Board seeking a
representation election among the nonsalaried employees.
Earlier, in late February or early March, the Union's vice
president, Dick Tam, had met or talked over the phone
with Personnel Director Lee about the Union's desire to
represent the employees. Their conversations apparently
were inconclusive, for on March 7 while on business in
Lee's office Hirotsu told him that Pat Moon, the Union's
business representative, had asked her to tell Lee that if the
Company was stalling, the Union would "pull a walk out."
Lee explained that the restaurant had to consult with its
lawyers. Hirotsu stated she was just relaying Moon's
message. Later that day, about 5 p.m., Hirotsu, as usual,
turned in her money to the accounting office and as she
walked past Lee's office he stopped her and stated "I know
you and you know me" and warned "if management found
out [Hirotsu] was for the Union organization, they would
get rid of [Hirotsu]." Hirotsu did not answer, she walked
away.5 It is plain, and I find, that Lee's threat to discharge
Hirotsu because of her union activities reasonably tended
to interfere with, restrain, and coerce Hirotsu in the
exercise of her statutory right under Section 7 of the Act to
support the Union. Accordingly, by engaging in this
conduct the Respondent violated Section 8(a)(1) of the
Act.
The threat of discharge, if she organized for the Union,
did not deter Hirotsu, who continued to campaign for the
Union among the employees. On March 14, Charles Lau,
4 The credibility issues relating to the allegations of the consolidated
complaint involving Hirotsu are important . Three witnesses testified.
Hirotsu for the General Counsel , Lee and Lau for the Respondent. I have
no hesitancy in crediting Hirotsu over Lau and Lee whenever there is a
conflict in their testimony . In bearing and demeanor Hirotsu impressed me
as an honest witness , Lau and Lee did not. To the contrary, they impressed
me as determined to testify without regard for the truth whenever it suited
their interests.
5 The above-described events of March 7 are based on the credible
testimony of Hirotsu . There is no conflict between Lee and Hirotsu about
their conversation insofar as it relates to the message relayed to Lee from
Union Representative Moon. Lee places this conversation as occurring
about 5 p .m. I do not believe him, nor do I believe his testimony that he did
not make the above-described threat of discharge or that during their
conversation he advised Hirotsu "something like" not to solicit on company
time while on duty. Lee, as previously indicated , in general, impressed me as
OCEANIA FLOATING RESTAURANT 831
waiter assigned to that cash register and turned in there.
Hirotsu could have used the phone located at her work
station to communicate with the other cashier but for some
unexplained reason informed trainee Yamada she was
going upstairs to see about the missing checks. Hirotsu
went to the work station of the upstairs cashier and
determined that the missing checks had in fact been taken
and used by a waiter assigned to that cash register. And,
before returning to her work station, Hirotsu also visited
the restroom which was located in the same area as the
upstairs cashier.? In all, trainee Yamada was alone at the
cash register for 10 minutes.
Upon her return to her cash register, Hirotsu noticed a
credit card charge slip for the amount of $248 which was
not signed by the customer and did not have a code
number indicating that the amount of credit over the $100
or the $150 minimum had been approved. Hirotsu
immediately remedied the situation. She told the waiter
involved to see if the customer was in the restaurant and, if
so, to have him sign the charge. The customer was found
and signed the charge . In the meantime , Hirotsu contacted
the assistant dining room manager, told him what had
happened, and asked him to call to see if the customer was
authorized to charge over the $100 or $150 minimum set by
the particular credit card. The information was secured
and the credit approved.8 In short, there was no harm done
and no loss of money to the restaurant.
The next morning, Wednesday, March 21, Hirotsu upon
her arrival at work told her boss, Office Manager
Kaneshiro, about the events of the preceding evening.
Kaneshiro voiced no concern over the matter but simply
stated "she would take care of it." Hirotsu worked without
incident March 21 and then on Thursday, March 22, at
about 5 p.m., Lau summoned her from her work station to
an office where he spoke to her alone. When she walked
into the office, Lau asked Hirotsu what had taken place the
evening of March 20 concerning the charge slip. Hirotsu
explained she had left trainee Yamada briefly to go
upstairs to the work station of the other cashier to
investigate some missing checks and then went to the
restroom . Lau stated that he understood there were other
things but said he would not go into them, and told Hirotsu
she was discharged "for dereliction of your duties," and
that Kaneshiro would have her final paycheck ready either
that day or the next .9
It is undisputed that no one ever criticized Hirotsu's
work or spoke to her in a derogatory manner about her
work.
Before setting out my ultimate conclusions as to the
Respondent's motivation in discharging Hirotsu, I shall
first look at and analyze the reasons advanced by the
r There is a service bar located 30 feet away from the upstairs cashier's
cash register . Lau testified that on the evening of March 20 , at one point in
time, he observed Hirotsu talking with the upstairs cashier and then shortly
thereafter talking to the bartender at the service bar. Hirotsu credibly
testified that when she went upstairs that night she visited two places, the
cashier and the restroom . As indicated previously, she impressed me, as Lau
did not, as an honest witness . I find Hirotsu did not speak or visit with the
service bartender.
8 If a customer neglects to sign a charge slip or a credit investigation is
not made for amounts over $100 or $150, the restaurant is liable for any loss
of money.
9 The exit interview is based upon the credible testimony of Hirotsu.
Respondent to justify the discharge . The decision to
discharge Hirotsu was made by Charles Lau, the assistant
to Respondent's president . Lau testified that on March 21
he was looking over the charge slips for the preceding
evening and came across the one which , as described
above, the customer had initially failed to sign . He spoke to
Office Manager Kaneshird about this matter and testified
she advised him that the mistake had been caused because
Hirotsu, instead of watching a trainee , had been on the
upper level of the restaurant where she had no business.10
Lau also testified that he remembered that on March 20 he
personally observed Hirotsu talking with the upstairs
cashier." Based upon this, Lau testified , he decided to
discharge Hirotsu . Initially, Lau unequivocally testified
that the only thing he considered in arriving at his decision
to discharge Hirotsu was "for dereliction of duty not being
at the station training the cashier when she is supposed to
be [there I." On cross-examination he changed this testimo-
ny and now testified that he also discharged Hirotsu, to
quote Lau, "because I told her not to leave the stand
[referring to the cash register ] and talk to people or
customers all the time, always that stuff outside her
stations , and she repeated doing it, every day." This
generalization, and Lau's "yes" on redirect examination to
a leading question which was just as general , except for one
specific incident, was the only testimony adduced by
Respondent of Hirotsu's habit of daily leaving her work
station. The one incident which Lau did point to was the
time he allegedly observed Hirotsu, on March 7, give a
maintenance man a note with the name and phone number
of the Union's business agent. I have, as previously
indicated, discredited this testimony. But, even if credible,
it is doubtful whether it lends support to Lau's generalized
claim that Hirotsu was always away from her work station.
For, it developed that this alleged conversation took place
at a distance of only 10 feet from the cash register at a time
when Lau does not claim there was work available for
Hirotsu.12 Moreover, there is no claim or contention that
on any of these alleged numerous times when Hirotsu left
her work station that it interfered with work. Admittedly,
Lau never spoke to her about leaving her work station for
the reason, he testified , that there was no business at her
cash register , and he thought perhaps she was going to the
restroom. Finally, Respondent called no one, not even
Hirotsu's immediate supervisor, Kaneshiro , to corroborate
Lau's story. I presume that Kaneshiro if she had testified
would not have corroborated Lau. Under all of these
circumstances, I am of the opinion that the Respondent at
the time it discharged Hirotsu was not concerned over her
leaving her work station and talking with other employees
or customers, had never cautioned her about engaging in
10 Lau's testimony indicates that Kaneshiro expressed the belief that
Hirotsu was at fault over the matter . Kaneshiro did not testify for the
Respondent . Respondent did not explain its failure to call her as a witness.
And, Hirotsu credibly testified that when she told Kaneshiro on March 21
what had taken place on the previous night that Kaneshiro expressed no
displeasure whatsoever . Based on the foregoing, 1' find Kaneshiro did not
regard what occurred on the evening of March 20 as serious enough.to
reprimand or discipline Hirotsu.
11 As indicated earlier, I have rejected his further testimony that he also
observed Hirotsu talking with the bartender in the service bar.
12 If anything , Lau's testimony indicates that at the time there was
"nobody at the cashier's stand."
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this type of conduct, and that in fact she had not, as Lau
testified , engaged in this type of conduct.13
To recapitulate , I find that Lau's testimony that Hirotsu
had a history of leaving her work station unattended was
completely without substance . I further find that this was
an afterthought fabricated by Lau. The circumstances in
which this testimony was first given bolsters this conclu-
sion . It was not developed by Respondent 's lawyer during
either Lau's direct or redirect examination . After both
lawyers finished their examinations , in response to my
inquiry, Lau testified that Respondent suffered no loss of
money because of Hirotsu's misconduct on March 20, and
further testified that prior to this Hirotsu had not engaged
in similar misconduct which would indicate that there was
a danger of it taking place again . Why then, in these
circumstances , didn 't Lau consider a reprimand rather
than discharge as a sufficient penalty to remedy Hirotsu's
misconduct. In response to this question , Lau testified
"there was a serious mistake had been made. The customer
was already leaving the dining room ." It was after this that
Lau changed his initial testimony and testified , in sub-
stance, that despite a warning Hirotsu had a history of
leaving her. work station - all the time each day to talk to
employees and customers. Lau, as I indicated earlier, in
manner and demeanor impressed me as having little use
for the truth, and I am convinced that in order to justify
the severe penalty of discharge he changed his initial
testimony and fabricated a new and additional type of
misconduct which he attributed to Hirotsu.
I am of the opinion that Respondent 's reasons for
discharging Hirotsu are pretexts designed to legitimatize a
discharge which was motivated in large part by Hirotsu's
union activities .14 In arriving at this conclusion I have been
influenced by the following factors. The Respondent was
opposed to the unionization of its restaurant, it knew of
Hirotsu's deep involvement in the Union 's organizational
campaign, and through Personnel Director Lee warned her
that she faced discharge because of her union activities.
Ignoring this warning, Hirotsu continued to actively solicit
employees to support the Union and was discharged as Lee
predicted. The two reasons advanced to justify the
discharge-leaving a trainee alone at the cash register and
leaving the cash register on numerous occasions to talk
with employees and customers-are without substance. As
described above, Hirotsu's alleged habit of leaving the cash
.register unattended was a reason fabricated by Lau,
without evidentiary support. The other justification, the
one which triggered the discharge, Hirotsu's failure to stay
with trainee Yamada on March 20, does not withstand
scrutiny. This misconduct, in the circumstances of this
case , did not warrant the drastic penalty of discharge.
Hirotsu was apparently regarded. as a satisfactory employ-
ee, having never been reprimanded or criticized about her
13 That is not to say employees did not come to Hirotsu 's work station
and question her about the Union. When she was not busy , Hirotsu
answered these questions even to the extent of giving employees union
cards. But, there is no evidence that Hirotsu, as contended by Lau, left her
work station . Moreover, there is no claim or evidence that Hirotsu's conduct
whether at her work station or away from her work station ever interfered
with work. Also, I note that Respondent does not dispute Hirotsu 's credible
testimony that it is customary for the employees to visit other employees
and talk about nonbusiness matters when business is slow.
14 The law is settled that "the existence of a valid ground for discharge is
work. Her misconduct engaged in on March 20 was a first
offense and caused no harm to the Company. Lau
admitted that Hirotsu had not engaged in similar conduct
in the past and admitted this indicated there was no danger
of this particular type of misconduct reoccurring . In these
circumstances, I am unable to find that Hirotsu engaged in
such gross misconduct as to warrant such drastic and
precipitate action by the Company, and find that the
discharge penalty indicates that the discharge was motivat-
ed by unlawful considerations . See Betts Baking Co. v.
N.L.R.B., 380 F.2d 199, 205 (C.A. 10, 1967), where the
court in finding a discriminatory discharge stated ". . . it is
fair to weigh . the seriousness of the offense, for if the
offense be minor it is reasonable to infer that the severity
of the penalty had its source in some conduct beyond the
offense."
The inference of unlawful motivation is bolstered by the
fact that, as found previously, Hirotsu 's immediate
supervisor, Office Manager Kaneshiro, did not regard the
incident involving trainee Yamada as sufficiently serious to
even orally reprimand Hirotsu.'5
Finally, in evaluating Lau's motivation , I cannot ignore
the false reason advanced by him at the hearing to justify
the decision to discharge Hirotsu . His testimony that the
discharge was based in part upon numerous absences by
Hirotsu from her work station , as I have found, was made
out of whole cloth. This contrived reason was not the one
given Hirotsu nor was it the one adduced by Respondent's
lawyers. It was introduced by Lau late in his testimony in
an effort to justify his imposition of the drastic penalty of
discharge for misconduct he had previously admitted was a
first offense with no danger of reoccurence . I think it is a
fair inference that the reason for concocting this new or
additional justification for the discharge was that Lau
knew that his original reason , the failure of Hirotsu to
remain with Yamada, was not based on legitimate business
considerations.
For all of the foregoing reasons, I find that a preponder-
ance of the evidence establishes that in discharging Hirotsu
the Respondent was motivated by her activity on behalf of
the Union . Accordingly, I find that the Respondent
violated Section 8(a)(3) and (1) of the Act by discharging
Hirotsu.
D. The Discharge of Gail Matsumoto
The General Counsel contends that Gail Matsumoto was
discharged on April 1 because Respondent believed she
was a union adherent. I will first discuss, however, the
General Counsel's further claim that on March 29
Matsumoto and two other employees were interrogated
about their union sympathies, in violation of Section
not sufficient , however, if it was merely a pretext or if the discharge was
based in part on unlawful grounds ." N.LR.B. v. Advanced Business Forms
Corp., 474 F.2d 457,464 (C.A. 2, 1973).
is Although I do not rely upon it as an indication of the Respondent's
discriminatory motive, it is strange that Lau felt compelled to discharge
Hirotsu and not leave the decision in the hands of Kaneshiro . Personnel
Director Lee was unable to point to one other occasion in which Lau
discharged an employee employed under the direct supervision of one of the
department managers.
OCEANIA FLOATING RESTAURANT
8(axl) of the Act , by Ken Ng, the Respondent's warehouse
manager, an admitted statutory supervisor.
Respondent shares its premises with another restaurant,
"Pier 6," not owned by Respondent . It opened on March
16, and at the end of the workday, on March 29,
Warehouse Manager Ng invited to "Pier 6's" cocktail
lounge , as his guests for a drink, Matsumoto and two of
Respondent's receptionists , Susan Mendez and Chris
Sumija, and their boyfriends. The group sat around a table
and enjoyed a few drinks and made general conversation
for about 1-1/2 hours . At one point during the conversa-
tion, Ng asked the question : "What do you girls [referring
to Matsumoto and the receptionists employed at the
restaurant ] think about the Union ." Mendez and Sumija
did not say anything. Matsumoto replied "[she] did not see
anything wrong with it." Whereupon, someone at the
table-not one of the "girls"--stated, in substance, that if
an employer took care of its employees and provided good
benefits that a union was not necessary . Matsumoto
agreed. This ended the conversation about the ° Union.
The above description of what was said about the Union
on March 29 at "Pier 6" is based on the credible testimony
of Matsumoto, who in general was an impressive witness,
and in testifying about this incident she impressed me as
making a sincere effort to tell the truth and to accurately
recall what took place. Ng admits that he entertained the
group of people at "Pier 6" on March 29, and testified at
that time he asked "what do you think about the Union."
He admits that this was intended to be a question and that
he expected an answer , yet, had no recollection whether
Matsumoto or anyone answered . In response to his
question, he testified "they all started talking about the
Union" with each other, "so I don't pay attention to that."
Later in his testimony, Ng stated he could not hear "too
much" about what Matsumoto was saying at that time
because she was talking with someone else and it was "kind
of loud" in the bar. Ng, in bearing and demeanor , was not
an impressive witness. In addition , his claim that he did not
hear Matsumoto's reply to a question which he asked with
the intent to get an answer does not ring true. His
trustworthiness as a witness was also impaired by his
contrived effort to demonstrate he did not tell General
Manager Young the sentiments Matsumoto had expressed
about the Union. He testified he did not tell Young about
anything that took place on March 29 at "Pier 6" for the
reason that it was against the Respondent 's house rules for
off-duty employees, including himself, to drink or eat at
"Pier 6." Because of this rule he certainly , so he testified,
would not have told Young about anything that was said
by the employees at "Pier 6" on March 29. Young, on
cross-examination, admitted. that Respondent had no
house rule which prohibited its employees from going for
drinks at "Pier 6." For the foregoing reasons , I credit
Matsumoto's version of what was said at "Pier 6" about
the Union , and in connection with Matsumoto 's statement
made to Ng that she did not see anything wrong with the
Union, I do not credit Ng's testimony that this information
le I have carefully considered the fact that the interrogation took place
in the friendly atmosphere of a bar, but, on balance, believe that in the
circumstances of this case the interrogation reasonably tended to interfere
833
was not communicated by him to General Manager
Young.
I am of the opinion that the questioning of employees
Matsumoto, Mendez, and Sumija about their union
sentiments without any legitimate reason therefor, and
without any assurance against reprisal, by its very nature
tends to inhibit employees in the exercise of their right to
organize. Here, this is especially true since the interroga-
tion took place in the context of the Respondent's hostility
toward the Union previously expressed to the employees
by Personnel Director Lee's threat to discharge and the
actual discharge of employee Hirotsu because of her union
activities. Moreover, it can hardly be said that the
interrogation was innocent or without any purpose, for Ng
admitted that he asked the question with the specific intent
of securing an answer . In view of the foregoing, I find that
Respondent, by interrogating employees Matsumoto,
Mendez, and Sumija , interfered with the exercise of rights
guaranteed to employees in Section 7 of the Act and
accordingly violated Section 8(aX1) thereof - 16 Engineered
Steel Products, Inc., 188 NLRB 298; Winchester Spinning
Corporation v. N.LR.B., 402 F.2d 299, 302-303 (C.A. 4,
1968).
On April 1, 3 days after she told Warehouse Manager Ng
that she did not see anything wrong with the Union,
Matsumoto was discharged ., I shall now briefly describe
her employment history and, in greater detail , describe the
circumstances surrounding her discharge.
Matsumoto started working for the Respondent on
March 5 as a receptionist and on March 20 was transferred
to the position of telephone operator . She is a student and
because of her school schedule is not able to work on
Monday. At the time she was interviewed for her job by
Personnel Director Lee, she told him that it was impossible
for her to work on a Monday because of school. Lee
testified that before Matsumoto's discharge he had notified
General Manager Young that Matsumoto was not able to
work on Monday because she went to school that day. The
result was that Matsumoto was assigned a regular work
schedule which gave her Monday as a day off. She worked
a 40-hour week, Tuesday through Friday from 4 p.m. to
10:30 p.m., and Saturday and Sunday from 8 a.m. to about
2 p.m. or 4 p.m.
The job of a telephone operator is not difficult and can
be described briefly. The operator handles all incoming
calls. Only rarely, if ever, will she take a dinner reservation
or make an outgoing call. During the period prior to
Matsumoto's discharge , the Respondent employed a
complement of three telephone operators; Matsumoto,
Nita Leon, and Pauline Tanaka. Matsumoto was regarded
by management , including the General Manager Young, as
a good employee.
On Sunday, April 1, in the afternoon, Matsumoto while
at work received a call from operator Nita Leon stating she
would be unable to work the next day, Monday , because
her child was sick . Likewise, operator Pauline Tanaka
phoned and stated that she was not able to come to work
that evening because she was not feeling well . They asked
with employees ' exercise of their rights under the Act. Cf. Fibers
International Corporation, 181 NLRB 731.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Matsumoto to relay their messages to General Manager
Young. Matsumoto that same afternoon relayed both
messages at the same time, exactly as described above, to
Young. Young, at this time , indicated she felt that the
situation was an emergency and asked if Matsumoto could
work Monday . Matsumoto stated she was not able to work
on Monday because she had classes scheduled at school
until 5 : 30 p.m . That ended the conversation . Later, in the
evening between 11:30 p .m. and 12 p.m., Young tele-
phoned Matsumoto at home and told her she had been
placed "on call," which Young explained was like being
laid off, for the reason that Matsumoto could not come to
work on Monday . Because of this, Young stated she had
hired a girl who could not work less than 40 hours a week
and had given the new hire Matsumoto 's 40 hours.
Matsumoto asked if Young had phoned and asked
operator Tanaka if she was well enough to come to work
Monday . Young replied in the negative and was unable to
explain to Matsumoto why she had not determined
whether Tanaka was well enough to work Monday. The
conversation ended with Young, in response to Matsumo-
to's question , stating that Matsumoto would be "on call"
until business picked up.17
The next day, Monday, April 2, according to the
undenied and credible testimony of Matsumoto, she
telephoned Office Manager Kaneshiro, who is also in
charge of accounting and bookkeeping, and asked if she
quit could Kaneshiro place her pay for Sunday , April 1, in
the paycheck for the preceding workweek ; the restaurant's
workweek ends on a Saturday. Kaneshiro asked why she
wanted to quit and was told by Matsumoto what, as
described above , had taken place on April 1 . Kaneshiro
advised her not to quit but to talk with Personnel Director
Lee.
Matsumoto followed this advice and on April 2, in the
morning, phoned Lee and asked him to explain the reason
her hours had been taken away . Lee said he knew nothing
about the matter but would check with Young and call
Matsumoto back. When she did not hear from Lee by
noontime , Matsumoto again phoned Lee and was told by
him that he had not spoken to Young.
On the same day, April 2 , or on April 3, Matsumoto
contacted Trudy Kai, employed by an employment agency
who had gotten Matsumoto her job , and asked Kai for
help on the matter. During April 3, in the morning,
Matsumoto again spoke with Kai, who told her that
Personnel Director Lee had stated that Matsumoto's
supervisor had gotten fed up with her because she had
17 The April 1 conversations between Young and Matsumoto, as
described above , are based on the credible testimony of Matsumoto whose
manner of testifying and demeanor when she gave this testimony was that
of an honest witness. Young, on the other hand, in bearing and demeanor
was a most unconvincing and unreliable witness. In only one significant
point , however, does the testimony of Young about these conversations
conflict with that of Matsumoto and that relates to the evening one. Young
claims that she cannot remember telling Matsumoto she was "on call" but
testified she simply told her "I have to give [your] job to somebody else."
as General Manager Young testified she did not hire a replacement for
Matsumoto until "a few days" after April 1, but was not able to recall the
date she hired the replacement . Respondent introduced no evidence
(documentary or otherwise ) to establish this date . I find that this failure on
the part of Respondent indicates that any such evidence would have been
unfavorable to Respondent ., Based on the foregoing and on Lee's statement
made on April 5 that no replacement for Matsumoto had been hired, I find
refused to work on several occasions because of school
exams. Matsumoto felt this was not true . She went
immediately to Lee's office-it was about 11:30 a.m.- and
asked why he had told Kai that she was asked on several
occasions to work and had refused because of examina-
tions. Lee did not deny making the statement to Kai but
defended himself by pointing out that he had asked her to
work once on a Sund+ and she had refused because she
had to study for an examination. Matsumoto explained
that there were extenuating circumstances for her refusal
on this one occasion. Matsumoto told Lee that if he did not
do anything about her loss of hours, she would report him
to the Labor Board. Lee asked her to once again repeat the
facts. Matsumoto, as described above, told Lee what had
taken place on April 1 and what Young had told her. Lee
copied her story on a piece of paper.
On Thursday, April 5, Matsumoto went to the restaurant
for her paycheck for the preceding workweek and again
spoke with Lee. He informed her that the paycheck had
been mailed to her home. Matsumoto asked about her
employment status, specifically whether she was "on call"
or terminated. Lee checked through his files and told her
he had not been notified she was terminated. Matsumoto
then asked whether anyone had been hired to replace her.
Lee answered in the negative. 18 If a replacement had not
been hired and she was "on call," Matsumoto asked then
why hadn't she been called back to work. She asked this
question a number of times. Lee did not answer it; he
replied that Matsumoto was putting him on the spot and
there was nothing personal involved. Matsumoto gave up
trying to get an answer to the question, told Lee she
realized he had nothing to do with what had taken place,
and left his office.
As she left Lee's office on April 5, Matsumoto met the
Respondent's President Teong Mun Loui and had a
conversation with him in his office. Mun Loui expressed
his sympathy for Matsumoto. Matsumoto asked him for
the reason she had lost her job and Mun Loui answered
that it was "business," that the restaurant was having
"labor problems." Matsumoto asked, "you mean you did
this to me because you thought I would vote yes for a
Union." Mun Loui replied, "you know I cannot answer
that.".The conversation concluded with Mun Loui asking
"if" he reinstated Matsumoto with backpay would she
"take it." Matsumoto replied in the negative but as she left
the office stated she would consider the matter and let him
know.19
On April 5, in a letter to the Board in connection with
that Matsumoto's replacement was not hired until some time after April 5.
19 The description of the April 5 meeting between Mun Lour and
Matsumoto is based on the credible testimony of Matsumoto whose
bearing, demeanor and manner of testifying made her an impressive
witness. Her testimony regarding this meeting was no exception . Mun Loui
admitted there was such a meeting at which time Matsumoto asked for the
reason of her discharge and that Mun Loui told her he had no knowledge
and would talk with Young about the matter . He also specifically denied
saying he had "labor problems" or that Matsumoto asked whether she was
fired because of the Company's belief she would vote for the Union. Of the
two witnesses, in bearing and demeanor , Matsumoto was by far the more
credible. Moreover, Mun Loui's honesty is impaired by the fact that his
claim that when he spoke with Matsumoto on April 5 he was without
knowledge of the reason for her discharge does not jibe with Young's
testimony . As described later, General Manager Young testified that prior
OCEANIA FLOATING RESTAURANT 835
the voting elibility of employees for the representation
election scheduled April 10, Lee stated that five. named
employees , one of whom was Matsumoto, "were no longer
working" for Respondent . Lee testified it was Respon-
dent's intent in sending this letter to make the five named
employees ineligible to vote.
On April 9, Matsumoto once more telephoned Lee and
asked him what her employment status was and Lee
refused to answer the question.
On April 11, the Board agent who conducted the
representation election informed Matsumoto that Lee, by
letter, had notified the Board that Matsumoto was no
longer an employee of the Respondent . Immediately, on
April 11, Matsumoto phoned Lee and asked if she in fact
had been terminated and, if so, what was the reason. Lee
refused to answer the question. Matsumoto then explained
she knew her name had been included in a list of
employees sent by Lee to the Board as having been
terminated . Lee adamantly refused to give her a reason for
her termination stating "you know." 21
On April 11, the Union on behalf of Matsumoto filed the
charge involved in this proceeding alleging that the
Respondent had discriminated against her in violation of
the Act.
General Manager Young, the person who made the
decision to discharge Matsumoto , testified that she decided
to discharge and discharged Matsumoto on April 1 for the
reason that she was upset because Matsumoto refused to
help out in an emergency and work Monday, April 2.
Obviously, the Company could lawfully discharge Matsu-
moto for this reason . The fact that the Company believed
Matsumoto was a union sympathizer and opposed the
Union would not establish a violation of the Act. The
discharge would be lawful if the Company was not
motivated by a belief that she was a union adherent.
And, yet, why , would Young abruptly discharge an
employee who was regarded by Young as a good employee,
knowing that such an abrupt discharge with no replace-
ment would inconvenience the Company . Also, relevant in
evaluating the discharge is the fact that Young's dual
assertion that ( 1) she regarded the absence of operator
Leon on Monday, April 2, as an emergency and, (2) she
was upset over Matsumoto's refusal to substitute for Leon,
are refuted by the whole record. Young knew that because
of school Matsumoto almost certainly would be unable to
work on Monday . Young did not even bother to call
operator Tanaka to see if she would be well enough to fill
in for Leon on Monday . Young on April 1 knew that in
case of any so-called emergency that her daughter
Charleen Lee, who worked for the Respondent as a
receptionist, could fill in as a telephone operator . In fact,
Young's daughter substituted for Leon on Monday, April
2, and for a number ct days thereafter helped substitute for
Matsumoto until a replacement was hired . Young as late as
April 5 had not even gotten around to hiring a replacement
for Matsumoto . This unexplained failure to replace
Matsumoto with another operator is additional evidence
that Young does not regard the absence of an operator for
I or even 2 days as an emergency or enough to really upset
her. Finally, assuming that Young was upset over Matsu-
moto's refusal to substitute for Leon, it seems reasonable
that after Young calmed down and considered the fact that
Matsumoto was a good employee who had a valid reason
for not being able to substitute for Leon , that Young would
have asked Matsumoto to return to work , especially since
no replacement had been hired . As a matter of fact, Young
at the hearing admitted that, although upset at the time she
discharged Matsumoto, she later calmed down and
thought about the matter and realized that Matsumoto was
a good employee . Specifically, Young testified that Mun
Loui, the president of Respondent , talked with her about
the discharge and asked whether she would take Matsumo-
to back to work if Matsumoto wanted to return. Young
testified she told Mun Loui: "Yes, I may, because at that
time when I say she is fired I was upset. I really, I like her
she is a good girl." When asked why she did not call
Matsumoto and offer her job back, the answer of Young is
in part absurd and in part not true . Young answered, "She
[Matsumoto] told me she had class, morning class, so she
probably in school , and the telephone is already have
someone taken care of." 22 For all of these reasons, I am
convinced that the nature of Matsumoto's alleged miscon-
duct when viewed in its setting is not the type of conduct
which normally provokes such an extreme response and
further find that it was not the cause of Matsumoto's
discharge.
Does the unpersuasive character of the conduct which
ostensibly resulted in Matsumoto's discharge establish that
a motivating force in the Respondent's action was its desire
to eliminate a union adherent? When this factor is
to April 5 she had explained to Mun Loui the circumstances surrounding
Matsumoto 's discharge.
20 Due to the negligence of the election observers, Matsumoto cast a
ballot without challenge in the April 10 election.
21 The conversations between Lee and Matsumoto which took place
from April 2 through I I and which have been described above are based on
the credible testimony of Matsumoto . Lee admits that during this period he
and Matsumoto conversed a number of, times and that Matsumoto on
several occasions asked him for an explanation of her termination and that
initially he told her he did not know but would find out from Young. Lee
further testified that when Matsumoto subsequently spoke to him about this
matter he refused to tell her the reasons for her termination . Lee, at the
hearing, justified this behavior for the following reasons . He had given Judy
Kai the reasons for Matsumoto 's termination and since Kai had relayed
them to Matsumoto there was no sense in repeating himself . Also, he
thought that Matsumoto was trying to build up a case to present to the
Labor Board . I do not credit Lee. His testimony, generally , was vague and
evasive . I realize that , as was the case with almost all of the witnesses,
English is not his native language, but I cannot ascribe his ambiguity and
evasiveness to this. I received the impression he was not attempting to tell
the truth as he remembered it, rather his demeanor and manner of testifying
was that of someone determined to obfuscate the truth . On the other hand,
Matsumoto impressed me with her sincerity . Her testimony was given with
conviction . Moreover, there was nothing in her version of these conversa-
tions or in the whole record to suggest that she fabricated these
conversations.
22 As previously found , a replacement for Matsumoto had not been
hired as late as April 5. It is clear and I find that Young had calmed down
prior to the hiring of any such replacement.
Young's above testimony that she spoke to the president of Respondent,
Mun Loui , about Matsumoto's discharge is, as indicated earlier , relevant in
assessing the credibility of Mun Loui in connection with his April 5
conversation with Matsumoto. Mun Loui testified he did not speak to
Young regarding Matsumoto 's discharge following this April 5 meeting.
Thus , Young's conversation with Mun Loui had to have taken place before
April 5. If, as Young indicates, she did in fact discuss Matsumoto's
discharge with Mun Loui prior to April S, it indicates that he was lying
when he testified in effect that when he spoke with Matsumoto on April 5
he had no idea of why she was fired and that he told Matsumoto he would
first have to talk with Young to find out what took place.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considered along with others, I believe such an inference
would seem appropriate under the language in the court's
Shattuck Denn Mining Corporation v. N.L R.B, 362 F.2d
466, 470 (C.A. 9, 1966). Thus, the Respondent was opposed
to the Union organizing its restaurant as evidenced by its
personnel director's threat to employee Hirotsu and the
discharge of Hirotsu because of her union activities.
Matsumoto's discharge took place in the midst of the
Union's organizational campaign and, shortly after the
discharge, the Respondent's president told Matsumoto that
he was unable to deny she had been discharged because
the Respondent believed she would vote for the Union.
Also, the fact that the general manager gave a false reason
to Matsumoto at the time of her discharge is additional
evidence of discrimination If the decision to discharge was
based on legitimate considerations, why was it necessary to
falsely tell Matsumoto she was "on call" or laid off until
business picked up and to falsely tell her that she had been
replaced by a new hire. Likewise, as late as April 5 the
Respondent's personnel director was unable to tell Matsu-
moto whether she had been laid off or was permanently
terminated. Also, why was the personnel director vague
and evasive when Matsumoto asked him to explain what
happened to cause her to lose her job. Certainly, if the
discharge on April 1 was based on bona fide considerations,
the Company's personnel director as early as April 2
should have been able to easily answer Matsumoto's
questions concerning her employment status.23
In deciding this case, I have carefully considered the fact
that Matsumoto engaged in no union activity. But this does
not constitute a complete defense where, as here, the
General Counsel establishes that the Respondent believed
that Matsumoto was a union adherent. It is well settled
that a discharge motivated by a suspicion or belief that the
employee is a union adherent violates Section 8(a)(3) and
(1) of the Act for the reason that "[t]he motivation and
conduct being tested here is the Company's-not [Irene
Matsumoto's]." N.L.R.B. v. Hertz Corporation, 449 F.2d
711, 714-715 (C.A. 5, 1971); see also NL.R.B. v. Ritchie
Manufacturing Co., 354 F.2d 90, 98 (C.A. 8, 1965). Also, the
Respondent's belief of Matsumoto's union sympathies is
not a totally separate issue, but rather is inextricably bound
up with the circumstances showing unlawful motivation. In
my opinion, belief, the acceptance of something as true, is
similar to knowledge, the fact of knowing. Like motivation
they may properly be inferred from the particular
circumstances surrounding a discharge. See Long Island
Airport Limousine Service Corp., 191 NLRB 94, and cases
cited therein, enfd. on this point 468 F.2d 292, 294-295
(C.A. 2, 1972). In this case, the circumstancial evidence
already discussed, including the refusal of the Respon-
dent's president to assure Matsumoto that she had not
been discharged because the Respondent believed she
would vote for the Union, preponderates in favor of a
finding that the Respondent believed that Matsumoto was
a union adherent. Moreover, Matsumoto's statement made
to Warehouse Manager Ng, 3 days before the discharge,
that she did not see anything wrong with the Union is
imputed to the Respondent for "the law is well settled that
the knowledge of a supervisor 24 is imputed to the
employer." MacDonald Engineering Co., 202 NLRB 748, at
fn. 7.
In the light of the foregoing, I am of the opinion that
Matsumoto's precipitate discharge is fairly attributable to
the Respondent's hostility to the Union rather than to its
alleged concern over Matsumoto's performance of her duty
as an employee. The evidence preponderates in favor of a
finding that the Respondent believed that Matsumoto was
a union sympathizer who would vote for the Union, and
while laboring under that belief, discriminatonly dis-
charged Matsumoto. I find, accordingly, that by discharg-
ing Matsumoto on April 1, 1973, the Respondent discrimi-
nated against her in violation of Section 8(a)(1) and (3) of
the Act.
The Representation Case (Case 37-RC-1834)
The Union urges in its objections to the representation
election that the Employer by its unlawful conduct
directed against employees Su Lee Tin and Gail Matsumo-
to prevented the employees from freely exercising their
choice in the April 10 election. Also, before me in the
representation case, even though not included in the
Union's objections, is the Employer's discharge of Irene
Hirotsu. Pure Chem Corporation, 192 NLRB 681.
Upon the basis of the findings of fact and conclusions of
law previously set out in this Decision, and the further
finding that the Employer by its unfair labor practices
prevented the employees from freely exercising their choice
of bargaining representative in the April 10 election, I shall
recommend that the election be set aside and that a second
election be directed.
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
1. Wen Hwa Ltd. d/b/a The Oceania Floating Restau-
rant, the Respondent, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Hotel, Restaurant Employees & Bartenders' Union,
Local 5, AFL-CIO, the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By interrogating employees about their union sym-
pathies and by threatening an employee with discharge
because of her union activities, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. By discharging employee Irene Hirotsu because of
her union activities and by discharging employee Gail K.
Matsumoto because of a belief or suspicion that she was a
union sympathizer, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
23 In this regard I note that General Manager Young testified she told Warehouse Manager Ng was a supervisor within the meaning of Section
Personnel Director Lee on April 2 that she had discharged Matsumoto and 2(11) of the Act and an agent of Respondent acting on its behalf within the
at that time explained to Lee the reasons for the discharge meaning of Section 2(13) of the Act
24 Respondent in its answer to the consolidated complaint admitted that
OCEANIA FLOATING RESTAURANT
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Respondent has not otherwise violated the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action in order to effectuate
the policies of the Act.
Having found that Respondent discriminatorily dis-
charged employees Irene Hirotsu and Gail K. Matsumoto,
I shall recommend that the Respondent offer to each of
them immediate and full reinstatement to their former
jobs,25 or if said jobs no longer exist, to substantially
equivalent positions without prejudice to their seniority
and other rights and privileges, and make each of them
whole for any loss of earnings suffered by reason of such
discrimination, by payment to each of them a sum of
money equal to that which normally would have been
earned as wages from the date of the discharges to the
dates of said offers of reinstatement, less net earnings
during such period with backpay computed on a quarterly
basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289, and with interest
thereon as prescribed by the Board in Isis Plumbing &
Heating Co., 138 NLRB 716.
As the unfair labor practices committed by the Respon-
dent were of a character which go to the very heart of the
Act, I shall recommend that it cease and desist therefrom
and to cease and desist from infringing in any other
manner upon the rights of employees guaranteed by
Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532, 536 (C.A. 4, 1941).
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 26
Respondent, Wen Hwa Ltd. d/b/a The Oceania Float-
ing Restaurant, Honolulu, Hawaii, itt officers, agents,
successors, and assigns, shall:
1. Cease and desist from-
(a) Discouraging membership in Hotel, Restaurant
Employees & Bartenders' Union, Local 5, AFL-CIO, or in
any other labor organization, by discharging or in any
other manner discriminating against employees in regard
to hire and tenure of employment or any term or condition
of employment.
(b) Interrogating employees about their union member-
ship or sympathies or activities.
(c) Threatening employees with discharge if they join, or
engage in activities on behalf of, the above-named labor
organization or any other labor organization.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
837
(a) Offer Irene Hirotsu and Gail K. Matsumoto
immediate and full reinstatement to their former positions
or, if such positions no longer exist, to substantially
equivalent positions without prejudice to seniority and
other rights and privileges previously enjoyed, and make
them whole for any loss of earnings they may have suffered
as a result of the discrimination against them in the
manner set forth above in the section entitled "The
Remedy."
(b) Preserve and, upon 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 amounts of backpay due, and the
right of reinstatement under the terms of this Order.
(c) Post at its place of business in Honolulu, Hawaii, in
English and Chinese, copies of the attached notice marked
"Appendix." 27 Copies of said notice, on forms provided by
the Regional Director for Region 20, after being duly
signed by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the consolidated complaint
be dismissed insofar as it alleges violations of the Act not
specifically found.
IT IS FURTHER ORDERED that the election conducted
among Respondent's employees on April 10, 1973, be set
aside and a new election directed at an appropriate time.
25 1 find that, by asking Matsumoto on April 5 whether she would return
to work "if" offered reinstatement , Respondent did not meet its obligation
toward Matsumoto Employees who have been discriminatorily discharged
are entitled to a specific and unequivocal offer of reinstatement
26 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
deemed waived for all purposes
27 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence , the National Labor Relations Board found that
we, the Oceania Floating Restaurant , violated the National
Labor Relations Act, and ordered us to post this notice
and to keep our word about what we say in this notice.
The Law gives you the right:
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To form , join or help unions;
To choose a union to represent you in
bargaining with us;
To act together for collective bargaining or
other aid or protection;
To refuse to participate in any or all of these
things.
The National Labor Relations Board has ordered us to
promise you:
WE WILL NOT discharge you or otherwise discrimi-
nate against you because you express sympathy for,
give assistance to, or join Hotel , Restaurant Employees
& Bartenders ' Union , Local 5, AFL-CIO, or any other
union.
WE WILL NOT question you about your union
activities or union sympathies.
WE WILL NOT threaten you with discharge for joining
or assisting the above-named Union or any other
union.
WE WILL NOT in any other way interfere with,
restrain, or coerce you in exercising the rights guaran-
teed to you by the National Labor Relations Act.
The National Labor Relations Board found we violated
the law by discharging Irene Hirotsu and Gail K.
Matsumoto.
WE WILL offer to reinstate Irene Hirotsu and Gail
Matsumoto to their former jobs, or if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to seniority and other rights and
privileges previously enjoyed, and make each of them
whole for any loss of earnings they may have suffered
as a result of the discrimination against them , together
with 6-percent interest.
WEN HWA LTD. D/B/A
THE OCEANIA FLOATING
RESTAURANT
(Employer)
Dated By
(Representative) (Title)
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, %814, Telephone
808-546-5100.