McDonald's Corp.

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.