McDonald's of Palolo

404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McDonald's Corporation d/b/a McDonald 's of Palolo and ILWU Local 142 McDonald's Corporation and ILWU Local 142 McDonald's Corporation and its Wholly-Owned Sub- sidiaries, McDonald's of Aina Haina, McDonald's of Palolo, McDonald's of Kailua, McDonald's of Waik- iki, McDonald's of Waiakamilo, McDonald's of Waipahu, McDonald's of Pearl City, McDonald's of Ala Moana, McDonald's of Waianae, McDonald's of Mililani Town, McDonald's of Kahala, Mc- Donald's of Hawaii Kai, McDonald's of Kaneohe, McDonald's of Makiki and ILWU Local 142, Peti- tioner. Cases 37-CA-724, 37-CA-726, and 37- RC-1749 August 9, 1973 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS JENKINS, KENNEDY, AND PENELLO On March 30, 1973, Administrative Law Judge E. Don Wilson issued the attached Decision in the above-entitled proceeding, finding that the Respon- dent had not engaged in certain unfair labor practices alleged in the consolidated complaint, as amended, and recommending that it be dismissed in its entirety. The Administrative Law Judge also found that certain conduct of the Respondent had not interfered with the election held in Case 37-RC 1749, and recom- mended that the Petitioner's objections based thereon be overruled.' Thereafter, the General Counsel and the Petitioner filed exceptions and supporting briefs, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 con- clusions, and recommendations of the Administrative Law Judge 3 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the consolidated complaint, as amended, be, and it hereby is, dismissed in its entirety. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots has not been cast for ILWU Local 142, or for Hotel, Restaurant Employees & Bartenders' Union, Local 5, AFL-CIO, and Hawaii Teamsters & Allied Workers, Local 996, and that none of the said labor organizations is the exclusive representative of the employees, in the unit found appropriate, within the meaning of Section 9(a) of the National Labor Rela- tions Act, as amended. 1 The Regional Director had previously overruled the other objections filed by the Petitioner 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 7 As all the objections to the election have been overruled , and as neither the Petitioner nor the Joint Intervenor in Case 37-RC-1749 has secured a majority of the valid ballots cast, we shall certify the results of the election DECISION STATEMENT OF THE CASE E. DON WILSON, Administrative Law Judge: A charge having been filed by ILWU Local 142 on June 1, 1972, and another charge having been filed by ILWU Local 142, here- inafter referred to as the Union, on June 16, 1972, the Gen- eral Counsel of the National Labor Relations Board, herein the Board, on September 27, 1972, issued an order consoli- dating cases, consolidated complaint,' and notice of hearing alleging that, by various acts and conduct, McDonald's Corporation d/b/a McDonald's of Palolo and McDonald's Corporation, herein jointly or separately referred to as Em- ployer, had violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein the Act. On Sep- tember 27, 1972, a Supplemental Decision, order consoli- dating cases, and notice of hearing was issued, the Union on June 8, 1972, having filed timely objections to conduct affecting the results of an election held by the Board on June 2, 3, and 4, 1972, and a number of the objections being substantially related to violations alleged in the consolidat- ed complaint. Respondent has answered timely.2 The Sup- plemental Decision of the Regional Director sets forth pertinent details with respect to the results of the election. Pursuant to due notice, a hearing was held before me in Honolulu, Hawaii, beginning November 8, 1972, and end- ing November 15, 1972. General Counsel and Employer fully participated and filed briefs. The Union did not appear nor file a brief. Upon the entire record in the case, and from my observa- tion of the witnesses, I make the following: ' Amended at the hearing herein 2 As the amended complaint was amended at the hearing herein, so was the answer amended 205 NLRB No. 78 MCDONALD'S OF PALOLO FINDINGS OF FACT I EMPLOYER'S BUSINESS Employer McDonald's, 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 and in the past year its gross revenues from its busi- ness operations has exceeded $500,000. During the same time, it has purchased supplies valued in excess of $10,000 which were manufactured outside Hawaii. Employer Palolo is a Hawaii corporation and a wholly owned subsidiary of Employer McDonald's and is engaged in operating a drive-in restaurant in Honolulu, Hawaii, re- ceiving gross revenues in excess of $500,000 in the course of its business operations during the past year. During the same time, it purchased supplies having a value in excess of $10,000 which were manufactured outside Hawaii. At all material times, Employer McDonald's and Em- ployer Palolo have had common owners and managers who have formulated and administered a common labor rela- tions policy for each entity. At all material times, they have constituted a single integrated enterprise.3 The single integrated enterprise, Employer, at all material times, has been an employer engaged in commerce within the meaning of the Act. II THE LABOR ORGANIZATION At all material times, the Union has been a labor organi- zation within the meaning of the Act. III THE ALLEGED UNFAIR LABOR PRACTICE 4 A. The Issues Many issues were raised by the pleadings and litigated herein. They concern two alleged violations of Section 8(a)(3) of the Act,' and a number of alleged violations of Section 8(a)(1) of the Act, the substance of which follows. The 10(b) date is December 2, 1971, and all alleged 8(a)(1) violations are claimed to have occurred since said date. (a) On or about December 2, 1971, and thereafter, did Employ- er promulgate and enforce "an unlawful no-solicitation 3 One of the reasons I refer to them, herein, as Employer Also, since General Counsel refers to them as Respondent Employer, I have called them Employer rather than the more usual Respondent 4I have carefully read and reread the entire transcript, exhibits , and the briefs of the parties several times Parts of the transcript have been reread in an effort closely to compare such parts with other parts of the transcript Any finding of fact made by me herein is based not only on the entire record but also particularly on credited testimony or documentary evidence I have found to be worthy of belief it may seem premature, at this point in my Decision, but, nonetheless, I specifically find I was most favorably impressed by the respective demeanors of Respondent Regional Manager Paul Reinard and Store Manager Guy Suzuki I found their testimony to be straightforward and honest I here credit the testimony of each as truthful Resolutions of the credibility to be given the testimony of other witnesses will be made hereinaf- ter 5 The alleged illegal suspension of a female employee herein called Tak- ahashi and sometimes referred to as Carol Fukumoto in the record, and her subsequent discharge are the bases of the alleged violations of Sec 8(a)(3) of the Act 405 rule" at various stores? 6(b) Beginning in December 1971, and on various dates thereafter, did Employer grant wage increases to its employees for the purpose of influencing their votes in an upcoming Board election ? (c) On or about February 17, 19727 did the Employer, through Supervisor Malcolm Ward, at its Pearl City store, unlawfully interro- gate an employee about the union activities of his fellow employees? (d) Beginning in April and thereafter did Em- ployer unlawfully hold employee meetings wherein it solic- ited employee grievances for the purpose of defeating the employees' union organizational efforts? (e) Commencing on or about April, did Employer grant its employees addi- tional benefits such as steak breakfasts , gifts, and employee programs and contests for the purpose of defeating the em- ployees' organizational efforts? (f) In late March or early April, did Employer through Supervisor Guy Suzuki, at its Palolo store, interrogate an employee about her union activ- ity? (g) On or about May 5, did Employer through its super- visor, Jim Marne, at its Hawaii store, interrogate an employee about his union sympathies? (h) On or about May 30, did Employer through Supervisor Mike Simms, at its Makiki store, create the impression to its employees that the Employer had their union activity under surveillance? B. Employer's Alleged Promulgation and Enforcement of an Unlawful No-Solicitation Rule at its "Various Retail Outlet Stores on the Island of Oahu" For some time prior to and briefly after December 1, 1971, Respondent had enumerated store policies in effect on Oahu.8 Paragraph 14, thereof, I find was an unlawful no- solicitation rule. It was too broad, in that it prohibited solici- tation by employees anywhere on the Employer's "prem- ises." Even in June, I find the store policies, with no deletion of paragraph numbered 14, were posted in at least some restaurants where employees could see them. However, I find, based on the credited testimony of Rei- nard and Suzuki, that the above no-solicitation rule was effectively replaced by the following no-solicitation rule about December 10, 1971: There shall be no distribution of literature or solicita- tion of employees by other employees in our working areas during working time or non-working time. Fur- thermore, persons other than our employees shall not be permitted to distribute literature or solicit our em- ployees at any time on company property. To me, the first sentence above plainly implies that Employer's employees are permitted to distribute literature or solicit employees, at least on their nonworking time, any place on company property other than "working areas," if any. General Counsel's Exhibit 4 was described to the employ- ees at "crew meetings" all over the Island and was almost 6 There are two no-solicitation rules in evidence and there is testimony as to each I am convinced that par VI(a) of the consolidated complaint refers to G C Exh 4 and not to G C Exh 5, particularly par 14, thereof. I have supplied the underscoring to the above quotation Hereinafter all dates refer to 1972 unless otherwise stated. 8 G.C Exh 5. 9GC Exh 4 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD simultaneously posted at all Employer restaurants for em- ployees to see. As time went along prior to the election in June, new restaurants opened and the new rule was made known to the new employees.10The entire record makes abundantly clear that all employees, unless they were vinci- bly ignorant, were aware from prior to the middle of De- cember that General Counsel's Exhibit 4 was the effective no-solicitation rule and that it had effectively replaced House Rule 14 in General Counsel's Exhibit 5.11 General Counsel's Exhibit 4 was posted at each of Employer's res- taurants. I am convinced that, when the no-solicitation rule was referred to by representatives of management to em- ployees from at least the middle of December 1971, the employees understood and knew reference was being made to General Counsel's Exhibit 4 and not to paragraph 14 of Employer's House Rules, General Counsel's Exhibit 5. There is no credible evidence that such paragraph 14 of the House Rules was ever enforced by the Employer during material times. The parties stipulated that General Counsel's Exhibit 4 was enforced at all material times by Employer. I do not credit the testimony of Susan Nonaka that when she was hired in the last 2 weeks of March, Employer's supervisor told about 15 new employees that there would be no solicitation "on the premises," including union solicitation. Having observed the respective demea- nors of Nonaka and Supervisor Mike Simms and having considered all of the respective testimony of each as well as the record as a whole, I credit the testimony of Simms that General Counsel's Exhibit 4 had been effective since mid- December 1971. In orientation programs with new employ- ees, he explained General Counsel's 4 to them and he distri- buted as many copies as he had available 12 of General Counsel's 4 to new employees. The employees were advised by him that General Counsel's Exhibit 4 was, and House Rule 14 was not, in effect. I am satisfied that General Counsel's Exhibit 5 was post- ed, during material times, at some of Employer's restaurants but the employees knew that General Counsel's Exhibit 4 and not House Rule 14 in General Counsel's Exhibit 5 was the no-solicitation rule in effect at the restaurants. I do not credit the isolated testimony of Scott Stueber that when he was hired in February the manager showed him a no-solicitation rule. It was not General Counsel's Exhibit 4. It was not House Rule 14 contained in General Counsel's Exhibit 5. His testimony is just not credible in stating that that which he was shown stated what both General Counsel's Exhibit 4 and House Rule 14 said. They are not the same. They are dissimilar. He and he alone testified he was shown an Employer rule that "went on to explain spe- 10 Some, not very many, considering the overall number of employees, received copies of G C Exh 4 according to credited testimony 11 There is evidence that through oversight or otherwise, in at least some instances, Employer continued to have its House Rules posted, No 14 not having been stnken therefrom I do not conclude that employees were led to believe House Rule 14 continued to be effective To the contrary, I find they were well and carefully advised that it had been supplanted by G C Exh 4 I am aware that Assistant Manager Repolio testified that no solicitation was allowed "on the premises" during material times I am convinced that this testimony was inartful and did not correctly reflect the no-solicitation rule actually in effect I do not find such testimony adversely affects the credit otherwise to be attached to Repolio's testimony i2 About 40 cifically that there should be no union solicitation because the company felt that it would pressure employees to mov- ing one way or the other in regard to the Union. It was about two or three paragraphs long." Allegedly, it dealt only with no-solicitation. Having observed Stueber carefully and not- ing that this testimony was in no way corroborated, I do not credit it. The same is true with respect to his testimony as to isolated instances of soliciting at one or more restaurants, other than for a union. John Cheong testified that Supervisor Scott spoke about a "new" non-solicitation rule at a "crew meeting" about April. According to Cheong, Scott told the employees they "were not allowed to solicit literature or talk to the employ- ees about extracurricular subjects other than McDonald's within the store or on store grounds, on duty or off." Having observed Scott and being favorably impressed by his de- meanor, I am convinced he never told employees they could not talk about "extracurricular subjects other than Mc- Donald's" and I place no reliance on any other part of the quotation." He testified he saw General Counsel's Exhibit 4 posted in the restaurant but saw House Rule 14 in 1971. The isolated types of other than union solicitation as to which he testified adds nothing of significance to the prime issue discussed in this section. Approximately 1,000 employ- ees and about 15 restaurants were involved in these pro- ceedings. Whatever he may have claimed Scott told him was provided by General Counsel's Exhibit 4, he swore that Scott posted it, and it was available for him to carefully memorize should he so have wished. This was, he testified, in April that General Counsel's Exhibit 4 was posted. He later testified he did not know how long it had been posted. He couldn't recall whether he had ever heard from any management official that Employer had a no-solicitation rule prior to April. His testimony as to solicitations at the restaurants did not particularize that they occurred in work areas. 14 There is no substantial or probative evidence that rest- rooms are not avialable without distinction as to whether 13 Extracurricular subjects would include movies, baseball, football, wars, etc 14 This record is singularly devoid as to what parts of what restaurants were "working areas " Did employees and customers share restroom facilities? Did nonworking employees sit at tables being utilized by customers? Were cooks, dishwashers, el a(, within the auditory or visual range of customers9 Aisles in a department store are where customers generally have some sort of contact with store employees Here, did the working areas encompass the entire area of each restaurant, and at each restaurant could and were Employer's customers in contact, visual, auditory, or semiphysically, with Employer's employees? General Counsel has failed to supply the answers to these and related questions in spite of the unusual length of the record herein. 1, of course, did not take a "view" of any of these restaurants, particularly since I was not requested so to do General Counsel has failed to establish by a preponderance of the probative and substantial evidence that the "prem- ises" and the "working areas" of any unit involved herein were not identical and that each and every employee at every unit and at every part of every unit did not have occasion on a regular basis to be in visual, auditory, or some other form of contact with Employer's customers There is no probative or substantial evidence that any part of any of the restaurants involved herein are not "working areas" available to use by Employer's customers while some of Employer's employees are present whether or not during their working hours That Employer engages in a multiplicity of advertising to develop and expand its already so large business and to promote a rapport between itself and its employees and its customers is a matter of common knowledge throughout this country and elsewhere MCDONALD'S OF PALOLO the user is an employee 15 or customer.16 Presumably, such rooms are not considered "working areas." 111 can make no finding that any other area of any restaurant is not a work- ing area within the visual or auditory range of one or more or all of Employer's customers. I have no probative or sub- stantial evidence that aside from restrooms, where work may or may not be performed by employees, that customers do not regularly and customarily come in contact with any and all of the working areas of each restaurant at least in some fashion which enables the customer to be aware of the activities of Employer's employees and even in the employ- ees' nonworking time.18 I find General Counsel's Exhibit 4, Employer's new non- solicitation rule was posted in December 1971 and replaced House Rule 14. The employees were made aware that Gen- eral Counsel's Exhibit 4 was the effective no-solicitation rule from that time forward. I find it was this rule General Counsel had in mind when he drafted paragraph VI(a) of the consolidated complamt.19 Regional Manager Paul Reinard knew that union organ- izing was going on when General Counsel's Exhibit 4 was promulgated. He saw to it that the restaurant managers were told to enforce this no-solicitation rule. They were to tell violators that they were subject to disciplinary action. The managers were supposed to see that the rule was com- plied with. All of this was pursuant to the advice of legal counsel. Crediting Reinard as I do, I find that, during October and November 1971, he was reviewing and revising the labor relations and operating policies of Employer's Hawaii oper- ations. This included increases in wages and other bene- fits 20 which could not then be effectuated during President Nixon's Phase I Wage Freeze. The promulgation of the new no-solicitation rule and its subsequent enforcement was an outgrowth of the general October-November 1971 overall review. Supervisor Guy Suzuki also credibly testified that the new non-solicitation rule was promulgated and announced to employees at crew meetings held in early December. All of the posted House Rules which continued to be posted in Employer's restau- rants, except rules 4 and 14, continued to be effective. No employee, I find, after early December had any bona fide reasons to believe that there was any non-solicitation rule 15 On or off working time 16 Obviously, I presume the existence of separate facilities for males and females 17 There is no evidence as to this Is Some customers might intensely be upset by the conversations or actions of an employee union solicitor Some customers might gag with rage at the actions or conversations of an employee who displayed resistance to the requests or exhortations or demands of an employee union solicitor It is readily apparent that open union solicitation in restaurants , such as are here involved, potentially might lead to bad relations between Employer and its customers This would be true whether employees were in the working areas during their working or nonworking time As I have found , there is no probative or substantial evidence that union or other solicitation would not be obvious to Employer's customers Some solicitation might result in a pleasant and informative chat between the employees on their nonwork time in working areas On the other hand , it might lead to a bitter exchange of insults or worse, the latter not being likely to be conducive to good digestion by, Employer's hopefully otherwise happy customers 9 N B "an unlawful no-solicitation rule " 20 Subsequently to be discussed herein 407 other than General Counsel's Exhibit 4 in effect. I find no substantial or credible evidence that House Rule 14 was ever enforced despite Repolio's testimony." I find, although it was not proven to have been enforced and even though I have found General Counsel's paragraph VI(a) of the consolidated complaint referred to General Counsel's 4 and not to House Rule 14, that House Rule 14 by its terms illegally infringed upon and violated the em- ployees' rights as guaranteed by Section 7 of the Act. This is not a finding that Employer thereby violated the Act since such violation is not alleged in the consolidated complaint 22 Now as to General Counsel's Exhibit 4 with particular regard to its first sentence which reads: "There shall be no distribution of literature or solicitation of employees in our working areas during working or non-working time." Obviously in referring to solicitation on working time by its employees, there was no violation of the Act. It is almost an axiom that working time is for work. It has been noted herein that the record does not establish what areas of a particular restaurant are for work. Neither does it establish that Employer's customers do not have occasion to have auditory or visual contact with Employer's employees in any and every part of Employer's restaurants where "work" is performed. Undoubtedly, some of Employer' s customers do, and others do not, support unions in general or the unions involved at these stores. I find it a matter of well- known fact that union solicitation among approximately 1,000 employees can lead to heated verbal exchanges among solicitors and those solicited. Indeed it is certainly not un- known for violent physical exchanges to occur in such cir- cumstances . Should such there be in the presence of customers, as would not be unlikely, Employer could well forsee destruction of the rapport which this Employer and any normal employer would like to have with its customers. Should such solicitation occur in such circumstances in working areas, even during nonworking time, this Employer like any employer could and no doubt would contemplate serious economic losses including a prospective loss of good will among some customers who were prounion and others who were antiunion. The employees' rights as guaranteed by Section 7 of the Act cannot be considered as isolated from the Employer's rights to have a business where the customers in his retail establishments are not deprived of their rights to participate in the eating of his fare free from perhaps exacerbating disturbances which might readily anse from the exercise by the Employer's employees of their Section 7 rights in working areas even during their nonwork time. These restaurants were not industrial establishments where the presence of a customer is a rarity. They were retail establishments open to the public and designed and operat- ed so to please each customer that they would be financially successful. That these restaurants were not department stores as in May Department Stores Co., 59 NLRB 976, enfd. 154 F.2d 533 (C.A. 8, 1946), is immaterial. As did the late and most highly regarded Associate Chief Trial Examiner Wallace E. 21 I find he was merely in error in quoting G C Exh 4 in its proper legal terms 22 Respondent consistently so maintained at the hearing herein. Evidence concerning the House Rule 14 was received by me because I could not tell what might ultimately develop 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Royster, I too, particularly here, equate these restaurants with "retail businesses where customers deal directly with the employees." 23 Such an employee no-solicitation rule, of course, would not be legal in a manufacturing plant or other industrial plant where such conditions do not exist. Here the Employer could reasonably anticipate that exercise of their Section 7 rights by the employees would disrupt its busi- ness.24 It is entirely reasonable to conclude that Employer's employees during their nonworking time in working areas were often in close contact with Employer's customers. As the Board noted in Goldblatt Bros., Inc., where restaurants of a department store were involved, "union solicitation in the restaurants is as apt to disrupt the Respondent's busi- ness as is such solicitation carried on in any other portion of the store in which customers are present." The second sentence of General Counsel's Exhibit 4 reads: Furthermore, persons other than our employees shall not be permitted to distribute literature or solicit our employees any time on company property. Again I agree with the words and findings of Trial Exam- iner Royster, approved by the Board in Goldblatt Bros, Inc., supra, 1269, 1270. "As a general proposition of law, there can be little doubt that a merchant may refuse access to his premises to any individual or group of individuals, assum- ing that his action is not in violation of rights secured by the constitution or by statute. . . . On the other hand, the Board has held that an employer may not unreasonably forbid union representatives access to his premises, upon the invitation of employees, where to do so would impose an unreasonable restraint upon the employees' rights of self-organization and where such access would not consti- tute an undue burden upon the employer.25 . . . In none of the cases cited has the Board or the courts found that an employer is bound to admit union representatives to its premises for the purpose of soliciting members or under circumstances where their presence would interfere in a substantial way with the employer's operations, or where it appeared that the employees could without substantial difficul- ty be reached by the union representatives at other places ." (Emphasis supplied) The record is devoid of evidence that any of the unions involved herein could not have achieved close personal contact with each or all of the approximately 1,000 employees at any place or places other than the Employer's restaurants. Here, as in the above cited case, the Employer's employees could have been solicited by the unions as they arrived at or left work. They could have been handbilled. There is no evidence in the record that any union could not have reached and solicited and perhaps enlisted the support of every one of the Employer's employ- ees with no inconvenience at places other than within the restaurants. I note especially, here, that the Board, in affirming the Trial Examiner, noted that there, as here, "that employees of the restaurants were eligible for membership in the .. . unions which were competing for the right to represent 23 Goldblatt Bros, Inc, 77 NLRB 1262, 1271 24 Here, as in Goldblatt Bros, Inc, supra, more than one union was competing for employee support 25 Citation omitted Respondent's employees, and that the restaurant employees had been solicited for membership in these unions." (77 NLRB at 1263) The Board there continued, emphasizing that employees off duty were in close contact with custom- ers. This must have been so here where the nonworking employees were in working areas.26As in Goldblatt Bros. Inc., I find that union solicitation by nonemployees of the restaurants was apt to disrupt the Employer's business. The Board has often held since then that a prohibition of solici- tation by persons other than employees on Employer's premises is lawful, unless a union could not reasonably reach the employees in some other fashion.27 The record reveals no evidence that the unions did not have a multitude of means to reach the 1,000 employees other than by solicit- ing in the restaurants. Employer properly consulted legal counsel. Having done so he properly supplanted the unlawful no-solicitation rule with a lawful one which was promptly and regularly brought to the employees' attention. To the extent that General Counsel proved solicitations other than union solicitations within the 10(b) period, they were completely isolated in nature and trivial and are not substantial evidence of discriminatory enforcement of Gen- eral Counsel's Exhibit 4. On at least one of the few occasions where other than union solicitation occurred, the solicitor was asked to leave the restaurant. I conclude General Counsel has failed to establish the allegations of paragraph VI(a) of the consolidated com- plaint by a preponderance of the probative and substantial evidence. This being so, it is to be dismissed. C. Did the Employer Violate the Act Commencing in December 1971, and on Various Dates Thereafter, By Granting Wage Increases to Employees, Designed to Influence the Employees' Choice in a Board Election? Beginning in December, Employer announced and there- after continued to announce a new wage policy that em- ployees would be evaluated each quarter and their evaluations would be shown to them as well as their grad- ings. Raises, if any, would be based on the evaluations. Respondent's new wage plan, in substance, is set forth in Employer's Exhibit 11. This was promulgated in early De- cember 1971, along with other changes in Employer's poli- cies 28 Where raises are in order based on a review of the employee's performance, they should be granted. Wage re- views are to be conducted at least four times a year. Wheth- er reviews are to be quarterly or every 4 months seems to be left to the discretion of managers. Reinard testified the quarters ran from December 1971, or began as of the date a particular restaurant opened. Of course, I have already noted the credit I attach to Reinard's testimony. According to Reinard, this wage plan was first discussed in July 1971, and continued to be worked on in October and November 1971, simultaneously with the review of other Employer policies. It was decided that the new wage plan would be put into effect when the then 26 1 emphasize the failure of proof that any part of any restaurant of the Emloyer was in a nonworking area 21 Citations would be superfluous 28 It is based, in substantial part, on G C Exh I I MCDONALD'S OF PALOLO current wage freeze was lifted and the National Headquar- ters in Chicago approved. The new wage plan was complet- ed before the end of November 1971. Reinard was completely unaware of the union organizational plan herein when the new wage plan was being formulated. Although the wage freeze was lifted in November 1971, as noted, clearance for its effectuation was not received from the Chicago main office until late November 1971.11 General Counsel contends, in part, that the record shows "massive wage increases" were given at unscheduled and irregular times after the filing of the election petition and prior to the election held on June 2, 3, and 4. There was some testimony from a few of the approximately 1,000 em- ployees that they never had heard of the new wage policy until after the filing of the petition orjust before the sched- uled election or that they were unaware of any evaluations when wage increases dust "appeared," etc. There obviously were some situations where Employer's Exhibit 11 may not have been strictly and literally complied with.30 Such, alone, would not prove that wage increases were "designed to influence the employees' choice in a Board-conducted elec- tion." The record reveals many wage increases in May, at least some of which might well, under Employer's Exhibit 11, have been delayed until June. As employees received or were shown their performance reviews, managers customarily explained the new wage plan to them. Reinard revised the plan to the extent that a man- ager could give performance reviews at any time during a quarter beginning with the issue of the wage plan or begin- ning from the date a particular restaurant opened,31 it being a "must" that there be at least four reviews a year. Some managers complained that tying in wage review dates with the dates of hire of employees presented too many prob- lems. General Counsel's Exhibit 11 was intended to be part of McDonald's national plan. Reinard tailored this plan to meet Hawaiian operations' special problems, resulting in Employer's Exhibit 11. In May, Reinard and his managers knew the election was coming up in June. They also knew that the managers had a lot of required "paper work" to do early in June and they would have the election in early June and a national con- vention in Chicago in mid-June, and many managers fol- lowed this with vacations on the mainland. Reinard reminded the managers that with such a full schedule for June, they were not to forget the quarterly reviews contemp- lated by Employer's Exhibit 11. They were reminded of their obligatory voluminous paperwork for early in June as set out in Employer's Exhibit 12. It should be noted that Reinard's wage policy for Hawaii, Employer's Exhibit 11, though based on General Counsel's Exhibit 11, differs in that there is no requirement for perfor- mance review on certain dates. Noreen Shiroma was hired by Mike Simms in late March 29 It is to be noted that the wage increase plan , Resp. Exh 11, does not prohibit a manager giving more than one wage review or wage increase in a quarter Not unusual with 1,000 employees and 15 restaurants 31 More than a few were opened after December I, 1971 409 1972. She later quit. She was a witness for General Counsel. While employed, she was an active union organizer. She received a wage increase on June 2, the first day of the election. She had previously been told by her supervisor, Simms, that she was going to get a raise. 2 After her direct examination, she first revealed that when first hired she was told of Employer's practice of having periodic reviews of an employee's work and granting wage increases where deserved. Simms told her this when she was hired. He apparently had posted a notice on the bulletin about wages and told the employees they could talk to him about them, and "so" she did. He showed her a paper which stated how raises were given out and that there would be performance ratings before raises were given. The chart she read said wage increases would be given every 3 months, she testified. Susan Nonaka also testified she was hired in March, re- ceived a wage increase on June 2 and that Simms on May 31 told her she would receive it. Simms credibly testified all employees working under him who were hired in March 1972 would receive performance reviews and wage increases where warranted by the end of May. He makes out the wage reviews by sitting down with his management assistants, reviewing the work performance of an employee, fills out a card, and then decides if a raise is merited. He thereafter tries to meet with each employee to review the employee's rating. It is possible that due to press of other business, some employees may receive their wage increases before he can discuss their evaluation sheets with them. This sounds eminently reasonable. He further credibly testified that his restaurant opened March 1 and that May was the time for wage reviews and raises, if merited. He gave 25 wage increases in May some of which were based on promotions and others based on Employer's All American Competition, fully described in the record and unnecessary to go into here. How an employ- ee was to vote in the upcoming election concerned Simms not at all, Simms truthfully testified. Cheong testified he was hired at the Kahala restaurant in March 1971 and was previously told by Scott he was getting this raise. Another wage increase "just appeared" in his March paycheck. He received a wage increase in May and before he received it he was told by an assistant manager he would receive it. Scott reviewed his wage evaluation with him and told him he was getting a raise. Joan Yoshiwara testified she was told by Scott when she was hired that employees came up for raises every 3 months. She received an increase in November 1971 and her second wage increase was in May. In May, she was told she had been evaluated. She had previously been shown her evalua- tion. It was shown to her when she asked about it. It appar- ently was very good. Scott testified Employer's Exhibit 11 had been Employer's wage plan in Hawaii since December 1971. Un- der it he must conduct performance reviews at least once during every 3-month period beginning with December. He is to grant raises to those who merit them after such review. He discussed the performance of each employee with his 32 Allegedly this was right after Simms had kept her alleged union activities under surveillance 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD managerial staff in giving the ratings. After President Nixon's Wage Freeze was lifted, Scott gave about 20 raises in December. He gave 12 in March. He gave 26 in May. His explanation for his May action in this regard was that the summer season was expected to be busy and he desired high employee morale. He had been late earlier in giving wage increases in March and did not want to be late again and was faced with the voluminous paperwork required before the mid-June convention.33 At the Pearl City restaurant, Gail Hamasu was hired in October 1971. She testified she was evaluated in December 1971, but did not receive her first raise until April. She testified she first learned from an assistant manager named John Hearn that employees were reviewed for wage increas- es every 3 months. She testified she got a raise on June 1 with no notice until she received her check. She added she was evaluated in May and she was then told she would get a raise but they didn't say "when." She was an active union organizer. Malcolm Ward, her manager, truthfully testified he had to make wage reviews at least once during every 3 months beginning with December and to give raises to those who merited them. No particular time was specified for a 3- month period. He could give an employee more than one, if merited by the employee. He reviewed each employee's performance with his management team, presumably pre- pared a performance review and discuss it with the employ- ee involved. He gave 44 raises in March.34 He gave 56 wage increases in May because he did not want to be late again and with the required June paperwork and the mid-June convention he would not have reached the raises until July, and he thought it would be unfair to the employees to again be late in giving them their raises.35 I find General Counsel has failed to establish by a pre- ponderance of the probative and substantial evidence that the raises in question, or any of them, were granted as part of a design to influence the employees' choice in the Board election. Respondent had decided long prior to December 1971 to have quarterly reviews and grant wage increases when the Wage Freeze was lifted and before it knew of the union activity involved herein or that there would be a Board election. In general, the credited evidence shows that the substantial wage policy was first considered as early as July 1971. Employer's Exhibit 11 is similar to the national plan and was adjusted to meet Employer's Hawaiian needs. The determination to effectuate the policy right after the Wage Freeze ended was made in November 1971, when Employ- er, according to the credited evidence herein, had no knowl- edge of the union organization involved herein. The credited evidence shows that the new wage increase plan was put into effect only when the Wage Freeze was lifted 33 It appears to me it would have been obviously unfair to delay earned increases to those who had earned them until July 14 He felt they should have been given in December but he was delayed because he was transferred as manager to Pearl City in November and it took time to learn the names and work habits of 70 employees He was "just" late in giving the March raises The first wage review was scheduled for Decem- ber, he testified, but he was not able to do so then 35 He gave 25 raises in April to exceptional employees under the All Ameri- can Competition and the national office in Chicago gave its approval. Thus, since the wage increase plan was decided upon before Em ployer had knowledge of the union organizational plan in- volved herein, its effectuation was not motivated by union animus. I find the record devoid of substantive evidence that Employer had other than legitimate economic reasons for promulgating and effectuating its long considered new wage plan, although a union petition for an election was later filed and an election was later held. When the plan was formulated, the Wage Freeze prevented its promulgation and subsequent effectuation and the Employer was un- aware of this union organization. Its promulgation and ef- fectuation has in no way been proved to have the "design" of influencing the employees' choice in a Board election. That actual promulgation of the wage plan and the begin- ning of its effectuation coincided with Employer's knowl- edge of this union organizational activity has not been proven by this record to be more than mere coincidence. Any deviations in the effectuation of the plan are ade- quately explained by the Employer in the record. Each store does not operate on the same quarter basis for wage reviews. Unusual events, such as the June national convention, can affect exact timing. More than one evaluation a quarter is not forbidden. Any deviations from policy have been ade- quately explained by the Employer. Certainly, it would be contrary to Board Law to defer the grant of an earned lawful wage increase merely because of the pendency of a Board election. It is noted that among the recipients of wage increases were union organizers. No employee was told that the Union or election had anything to do with his raise, one way or the other. As a general rule, the individual employee was told that the raise was for good work and his perfor- mance rating was discussed with him.36 I conclude General Counsel has failed to prove by a preponderance of the probative and substantial evidence that Employer violated the Act as alleged in paragraph VI(b) of the consolidated complaint. D. Did the Employer on or about February 17, Through Supervisor Malcolm Ward, at the Pearl City Store Illegally Interrogate an Employee About the Union Activity of his Fellow Employees? Ward credibly testified with no contradiction that he be- lieved Gail Hamasu engaged in union solicitations in the Pearl City restaurant possibly violating the Employer's no- solicitation rule. He further truthfully testified that the named husband of an employee 37 had vociferously com- plained to him that Hamasu had harrassed his wife in con- nection with solicitation. Ward told Hamasu of this and in effect asked her to leave Mrs. Cyr alone. He reminded her of General Counsel's Exhibit 4 and told her not to violate it. Hamasu replied "OK." Hamasu testified that on February 17 she and employee Vasper punched out and walked to the parking lot. Accord- ing to her, Ward came to them and "asked us about our schedules and things." He then asked Vasper if Hamasu had 36 That such may not have happened in every instance is but another example of an imperfection in the world or in a supervisor 37 Cyr MCDONALD'S OF PALOLO been talking with her about the Union, to which Vasper replied, "No." Hamasu testified she asked Ward why he had asked the question and he replied he was supposed "to know that kind of stuff." Ward truthfully admitted this interrogation explaining the prior complaints which he had reported to Hamasu. These complaints were the basis for this isolated instance of interrogation. It does not warrant the indignity of being found to be an unfair labor practice. General Counsel has failed to prove by the probative and substantial evidence that Employer violated the Act as alleged in paragraph VI(c) of the consolidated complaint.38 E. Commencing in April and Thereafter Did Employer Hold Meetings of Employees at Which Respondent Solic- ited Grievances From Employees, in Order To Defeat the Employees' Union Organizational Efforts? Respondent admits the holding of meetings with employ- ees for the airing of employee grievances, among other things. They were held long prior to April 1972. The nation- al office directed the holding of such "rap" sessions for its restaurants around the world. It was considered as early as 1970 when managers were called to Chicago to "rap" about their areas. At another national meeting in July 1971, in Chicago, they were for the first time shown a film showing how to conduct rap sessions with members of crews. They were then told that such sessions should be conducted throughout all operations. They began in Hawaii in mid- November 1971.9 Even some of General Counsel's witness- es fixed the holding of such sessions as early as November 1971. This was before knowledge of this union organiza- tional activity and before the filing of a election petition. I conclude General Counsel has failed to prove by a preponderance of the probative and substantial evidence that Employer violated the Act as alleged in paragraph VI(d) of the Act. Clearly such rap sessions were part of the national or international operations and not confined to restaurants where there was much or little or no union activ- ity. They served, no doubt, a useful purpose before there was knowledge of the instant union organization and af- terwards. Certainly, Employer did not have to cease good and legal activity simply because it learned of union organi- zational activity or because an RC petition was filed. At all times it was Reward's policy that the location of and the food served at the rap sessions was in the discretion of the manager of the individual restaurant . Managers were told to keep costs within reason, personally estimating about $90 per month per restaurant. Frequently the cost per session has been much less. The serving of food appears to have been an inducement for employee attendance. 38 It may be noted that Hamasu testified that Ward, in this conversation, didn't tell her she would suffer any sort of discipline or discharge Vasper didn't testify 39 See Employer's Exh 10 411 F. Did the Employer, Beginning in April, Grant Employees Additional Benefits in the Form of Steak Breakfasts, Gifts, Employee Benefits, Programs and Contests, To Defeat the Employees' Union Organizational Drive? The matters alleged to have begun in April, as alleged in paragraph VI(e) of the consolidated complaint, are merely a continuation of many benefits instituted long prior to April, some in an expanded form. But the nexus with the employees' organizational efforts is not established by a preponderance of the probative and substantial evidence. Reinard's private estimate of the budgeting of an expend- iture of about $90 per month per restaurant has been found. Such was clearly not exorbitant. It isn't the kind of money you use to buy the votes of 50 to 70 or more employees per restaurant. Reinard thruthfully testified Employer had a policy of sponsoring social and athletic events for its em- ployees at the restaurants as long as he had been with the Employer 40 The managers select the social functions, such as Christmas or Thanksgiving parties, summer outings, and any functions the employees like to get involved in. This has been true at least since mid-1971. Some of the outings were catered in 1971. The crews create some social functions themselves and go "pot luck." If a manager served a steak breakfast, that was in his discretion. It would not be con- trary to Reinard's policy, so long as costs are within rea- son4' I find Malcolm Ward presented a $300 figure for future benefits at one session with employees. This would have been not very out of line with Reward's private figure since the $300 was to cover 3 months of activities. In fact the $300 covered three different occasions. Its use was determined by a committee of employees. It was on May 20 the crew was told the crew could have $300 to spend for the "summer." This does not indicate any substantial dep ture from the $90 per month Reinard budget. I do not find a continuation of outings, parties, etc., after April, violative of the Act. Crew breakfasts had been a regular Employer activity even in 1971. Managers have always had a limited discre- tion in refreshments and consequently there were varia- tions. At all times, employees were paid for attending these meetings but the nature of the fare served to them varied from time to time and from manager to manager. Employer had an open house prior to the election, at which employees' families were invited. The purpose was to obtain a public reaction to "Eggs McMuffin", a new con- coction, it having been decided nationally that it should be tested in Hawaii. "Roman Gabriel Mugs" 42 were also distn- buted43 The Union or unionism was never mentioned in any way at the Egg McMuffin test. The election forthcom- ing was not mentioned . Business was not mentioned. I find everything about the McMuffin-Gabriel matter to have been entirely innocent. May was selected for such funnery because June was already fully scheduled with events al- 40 Since 1970 41 Considering the amount of hamburgers sold by McDonald's, it would not surprise me that they could make a good buy on steaks, even today 42 Value unknown 43 Employer and Roman Gabriel were at this time cosponsoring a "football clinic " Egg McMuffins and Roman Gabriel Mugs killed one bird with two stones 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ready mentioned herein. An early reaction to McMuffins was deemed important.44 It has not been proven to have any relation, but time, to the election. Time can be most impor- tant. Here, I find Employer's knowledge of business necessi- ty as of a particular time merely coincided with the upcoming election. I am convinced the Employer was en- tirely divorced from designs to defeat employee union orga- nization when it determined to have its "McMuffin" tryout combined with glorification of its efforts with Gabriel. I conclude General Counsel has failed to prove by a preponderance of the probative and substantial evidence that Employer violated the Act as alleged in section VI(e) of the consolidated complaint 4s G. Did Employer, Through Guy Suzuki, in Late March or Early April, Illegally Interrogate an Employee About Her Union Activity. Suzuki allegedly unlawfully interrogated Takahashi on or about the above date. There is no doubt that there was a conversation between them at such time and the union or unions were part of the discussion which was involved in a work evaluation of Takahashi. That Takahashi was an ac- tive union organizer was well known, indeed she was often referred to as Carol Union. I have carefully studied the versions of this conversation given by Takahashi and Su- zuki. In many instances they are in agreement. To the extent they differ, I credit the testimony of Suzuki as more proba- ble and reasonable. Takahashi testified that in March or April Suzuki gave her a job evaluation. She said she was rated good for job performance, average for appearance, poor for attitude, and poor for punctuality. She questioned him about each item, particularly about her grade for attitude, "because the per- son who evaluated me knew I was an organizer." Suzuki replied he'd check on that rating. She told him that if he checked her timecard he'd see she was punctual.46 Suzuki said he'd check. She told him she thought her attitude rating was unfair. He told her in reply to her inquiry that she had been evaluated by Ray Nicola, the swing-shift manager. It was at this point in her testimony that she testified Suzuki told her he didn't know how to talk to her because he knew she was a union organizer. She added that, apparently be- fore the evaluation was mentioned, he then asked if she were being paid by the Union, to which she gave a negative reply. He said he hadn't thought so and then went into her evalua- tion. Allegedly, Suzuki also asked her why she was organiz- ing, to which she replied "to improve the working conditions at McDonald's." According to her, at a later date, Suzuki asked her to arrange a meeting with him and Bob Matsuyama.47 44 If they caused indigestion or were otherwise unacceptable, perhaps they miht have caused an adverse reaction among employees The Employer's athletic program has been in existence since mid-1971 Providing T-shirts is as insignificant here as a gnat's hair The All American Team competition was part of the national program The "free food" policy was also adopted by Renard in October-November 1971, but could not be implemented, like the wage program, because of the Wage Freeze It was never intimated to an employee that it or any other benefit was tied into the union campaign 46 Her timecards were not offered in evidence Her testimony as originally given and narrated above was almost the same as Suzuki's. He truthfully testified that she stated she was being downgraded in "attitude" because of her union activity. He replied in the negative and said he was trying to be as objective as possible. He asked for addi- tional comments or suggestions since he had only recently become manager. She suggested that the store buy black pants and white tennis shoes in bulk and sell them to the girls at cut rate for use in the restaurants. He said it was a pretty good idea. She then said, "You probably know that I'm a union organizer," and he replied in the affirmative. This was the first mention of the Union. They then started to discuss unions specifically and generally. She asked him how he stood on the Union. He replied it wasn't a good thing for the employer. She asked him why he worked for McDonald's. He replied that it appealed to him because there was room for personal improvement. She asked him if he thought a local boy "is going to make it in a haole company." He told her he hoped she was not giving him some of this "Third World thinking from the University." She replied, "No." He said he thought he could make it anywhere and then asked her why she wanted to organize McDonald's.48 She replied it was because of a variety of inconsistencies . He said the company was in a period of fast growth in Hawaii and he'd like her to give him a chance to prove he could do the job there. He stated to her that he thought unions were necessary when they evolved but he did think it was fair that a shipping strike could paralyze the whole state. He stated he didn't think the tactics of this union were fair and pointed out some examples. He finally told her that he and she would not settle this so far as a win or a loss was concerned. He thanked her for her opinions and comments and that was that. He checked later with Ray Nicola, the swing manager, who said that Takahashi did not "pitch in" as well as the other workers which accounted for the rating with respect to "attitude." Having observed each witness most closely, I credit the testimony of Suzuki and find General Counsel has failed to establish by a preponderance of the probative and substan- tial evidence that the Employer violated the Act as alleged in paragraph (f) of the consolidated complaint 49 H. Did Employer, on or About May 5, by Supervisor Jim Marne Illegally Interrogate an Employee About His Union Sympathies? Scott Stueber impressed me as an unreliable witness. His testimony, if credited, would in my opinion establish more than the violation involved in paragraph (g) of the consoli- dated complaint. It is effectively refuted in documentary evidence bearing his signature. He testified he was hired in February by Manager Ben- nett. He was the only one to testify about a no-solicitation 47 He was found to be a discriminatee in a prior case against Employer. There is no evidence herein as to whether she ever did 48 Note that she brought up her organizing activities 49 At p 7 of his excellent brief, General Counsel inadvertently confused Simms with Suzuki MCDONALD'S OF PALOLO he allegedly "initialed," which was in addition to General Counsel's Exhibit 4 and House Rule 14.50 He testified he "quit" his job on May 19 about 2 weeks before the election. He testified Supervisor Jim Marne men- tioned the Union to him on May 17. He said that on May 5 he told the manager he was planning to quit because he was going to summer school and he had some things he had to do first. He asked if he could have a leave of absence in order to come back in the fall. The manager said no, since he was a part-time worker. On May 17, Marne according to Stueber came to him and said they'd give him a leave of absence so he could "come back and vote in the Union election." Stueber allegedly said that was fine. Stueber would have me believe it was not until after he was told he could have the leave of absence so he could vote that Marne for the first time asked him what he thought of unions. Stueber allegedly replied they were good in principle but he wasn't necessarily sure they were good in Hawaii. Marne allegedly agreed with him. Stueber then allegedly asked what was the date of the election and Marne told him. Allegedly Marne told him not to worry about it, Marne would call him and remind him. Certainly, Stueber testified he was granted a leave of ab- sence so he could vote in the election. Employer's Exhibit 13 shows that on May 5 Stueber signed a notice of resignation because of school pressure and stating that his last day of work would be May 17 and that he wished his final check to be mailed to him at his home. At no place is there a reference to a leave of "absence." Stueber testified he "quit." He did not vote in the election. Since Stueber had already handed in his resignation on May 5 to be effective May 17, I cannot conceive Marne asking him on May 17 what he thought about unions. There, of course, is no credible evi- dence that Marne phoned Stueber about the election. I credit entirely Marne's testimony that Stueber asked him what he'd have to do if he wanted to quit and Marne told him he'd have to fill out a resignation form. On May 5, Stueber told Marne he wanted to quit as of May 17. He filled out and signed the form indicating resignation as of May 17. On May 10, Stueber was asked by Marne if the 17th was still the definite termination date. Stueber said yes. Marne told him he could return when his school problems were straightened out. Stueber asked Marne if he could vote in the upcoming election. Marne told him he could not, if he terminated, he'd be ineligible to vote. On May 17, Marne confirmed Stueber's correct address so his check could be mailed to him. Stueber then asked Marne what the upcom- ing election was about. Stueber again asked whether he'd be eligible to vote and Marne told him, "No." Marne never discussed a leave of absence with Stueber. Having credited the testimony of Marne as opposed to that of Stueber, I conclude General Counsel has failed to establish by a preponderance of the probative and substan- tial evidence that Employer violated the Act as alleged in paragraph VI(g) of the consolidated complaint. 50 There was none 413 1. On or About May 30, Did Employer, Through Mike Simms, Create an Impression to Employees That Employer Was Keeping Employees' Union Activity Under Surveil- lance? Simms allegedly gave the impression to employees Shiro- ma and Nonaka that he had been keeping their union activi- ties under surveillance. Based on these employees' admitted activities at the time, they were not engaging in union activities in my view. Thus, whether there was an impression that such activities were under surveillance, arguendo, is immaterial. Their story is that they were merely advising employees that there was going to be a union election. Such is, in my view, a mere expression of fact and not union activity any more than would be a similar statement by an Employer representative or a stranger. "Well, we just told them that, you know, the election was coming up and if they were going to vote. But we didn't solicit to them." They were standing outside of, but near, Employer's premises. Simms came to them and said "that it was all right, what we were doing." He said he knew what they "were doing and it was okay with him." 51 They had talked to four girls who were on the premises. Simms was looking in their direction from the restaurant. There was no conversation about this. Simms told Shiroma she was going to get a raise. I find no probative or substantial evidence that Employer violated the Act as alleged in paragraph VI(h) of the conso- lidated complaint. J. Did Employer, Through Mike Simms, Violate the Act by Advising an Employee Right Before the Election That She Might Be Violating the "24-Hour Rule?" 52 When Nonaka was on her dinner break, according to her, on June 1, she talked to another employee about the Union because he said he had no information about it. Assistant Manager Frank was in the area. She returned to work and later Simms approached her and said she had been breaking the 24-hour rule and he would use it against her as an unfair labor practice. She had been talking to a male employee named Kelly and the conversation occurred in the eating area, the public area.53 It was also a working area. Simms told her she had been soliciting and had broken the 24-hour rule also. Simms never said what the 24-hour rule was. She had a "vague idea" what he was talking about. I find it hard to believe but she swore she had never seen a no-solicitation rule "in writing or printed or typed." Nonetheless she testi- fied that when she was hired she was told that "union" was a bad word and "there was to be no solicitation of any kind ff Simms truthfully testified that, after he learned of Susan's conversation with a fellow employee on June 1, he spoke to her and told her "that at this point in time it would be silly for any of us to violate any rules, the 24-hour rule or the no-solicitation rule, because it might risk invalidating the election. And I stressed we wanted to have a fair election." He had misunderstood and when he spoke to Nonaka that 51 I find no indication of an unlawful impression of surveillance 52 As amended at the hearing 53 She had earlier testified it was outside the working area 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there was to be no campaigning or soliciting for votes in the 24 hours preceding the election he was expressing his opin- ion of the law. He was enforcing the no-solicitation rule. He was merely warning her not to violate such rule. He told her not to "solicit" for the Union. He didn't say it was not all right for her to talk about the Union. No one had told him she was soliciting. There wasjust a "possibility" that she had been soliciting. I think the so-called "24-hour rule" is here immaterial. Simms didn't tell her what it was She had a "vague idea" what it was. In all the surrounding circum- stances including the isolated nature of this conversation with one of about a thousand employees, I conclude Gener- al Counsel has not established by a preponderance of the probative and substantial evidence that Employer violated the Act as alleged in the added paragraph VI(i) of the conso- lidated complaint. Issuance of any cease-and-desist order for this would be pointless. K. On or About May 31, Did Employer Illegally Suspend and Then Discharge Carol Fukomoto Takahashi? This is an involved and complex issue . Takahashi was suspended on May 30 and discharged on May 31 on the eve of the election. She was known as "Carol Union." She was an active union organizer. Employer wanted no union to win: The timing of her discharge renders it most suspect. Of course, findings of violations may not be based on mere suspicions. Takahashi was hired by Simms in September 1971 at a wage rate of $1.60 per hour. She became active in union organizing in October 1971 and she and the man she later married distributed many authorization cards for the Union. I note, in passing, that her version of her conversation in March or April with Suzuki was very similar to a conversa- tion she allegedly had with Simms beyond the 10(b) period, in that in each conversation she allegedly was asked if she were being paid for organizing and each allegedly asked her why she was organizing and she allegedly told each about 6 months apart that it was "to improve the working condi- tions at McDonald's " I do not discredit her testimony on this account but I find it most unusual or at least more than passing strange. There is no doubt that Takahashi was scheduled to work on May 27, 28, and 29. The schedule was in writing. She knew she was so scheduled. The first thing I am called upon to decide is whether on each of these days she was telephoned by Pedro Repolio, her assistant manager, and told by him not to report for work but to check back. She so testified. She testified Repo- Ito identified himself on the phone and she recognized his voice. Repolio allegedly called her on May 27 and advised her there was a mix up in schedules and not to show up that day. She testified Repoho phoned again on May 28 and he told her not to come to work but to check back with them. She testified Repolio had identified himself and she recog- nized his voice. On May 29, she testified Repolio again phoned her and told her not to come in but to check back with his schedule on May 30 though she did not have to work that day. She continued, testifying that she went to the restaurant on May 30, saw she was scheduled to work on June 2 and 3 but she "had three `no shows' on [ her] time- card." She allegedly asked Repolio about this and he denied ever calling her. Allegedly, he told her to talk to Manager Suzuki and she did so Suzuki told her, she testified, that he might have to suspend her and that, if disciplinary action were not taken in connection with her, his authority would be lessened in the eyes of the other employees and he told her to check with him the next day. She testified she finally saw him about 10 p.m. the next evening and he told her he was sorry but he had to terminate her employment, "be- cause she didn't show up for work." She allegedly told him Repolio had phoned her on each of the 3 days telling her she didn't have to work because of a mixup in work sched- ules and she was to check back with the Employer for a work assignment. She testified Suzuki told her he had checked with Repolio and all the other swing-shift manag- ers and they had no knowledge of any phone calls to her. She then testified that before May 27 she had spoken to Repolio on the phone.54 She had spoken to him many times in person. She testified again that she recognized his voice on the phone each time he called. "To the best of [her] knowledge" it was Repolio to whom she spoke. She testified that after her conversation with Suzuki she never asked Repolio "to tell the truth" or "go in and tell [Suzuki] about our conversations." She testified that after she was terminat- ed she didn't know why she didn't say to Repolio something like, "Look where you got me now. I've been fired. Why don't you go in and tell the truth?" I think some such words might have well been forthcoming from a militant union protagonist who honestly believed she had been fired be- cause Repolio failed to tell the truth or because she was the victim of a frameup. She testified that when Suzuki fired her he told her he had talked to Area Supervisor Dan Shiraishi but it was ultimately Suzuki's decision to terminate her because it was his store. Allegedly, when she was terminat- ed, Suzuki said the union drive was a personal affront to him because he thought the store was his "castle." Allegedly, he told her not to take the termination personally. She told him not to take the union drive personally. Suzuki, allegedly, said it was off the record, but he was dust wondering why she was organizing and spending so much time trying to get a union into McDonald's. Assuming there to have been a conspiracy to get rid of Takahashi on pretextual grounds, I find it hard to understand how a man who presumably would have been a prime actor in such malicious and well- calculated conspiracy would have been stupid enough to have made the last statements Takahashi attributed to him. The reason, according to her, that Suzuki gave her for firing her was because she failed to show up for work as scheduled for several days. In her cross-examination, she testified that when she was hired she gave the Employer her parent's home phone num- ber, 538-6492, as the place where she could be reached. She was "partially" living with her parents when the three phone calls were allegedly received. She shared an apartment with her girlfriend and was "moving out" in May and June, so she was partly at her parents and partly at [her] apartment. She testified she was at her parent's home on May 27 and 54 It is not unusual for the voice to sound differently, depending upon whether used in direct personal contact or over the phone MCDONALD'S OF PALOLO 28. She was terminated by Suzuki May 31 about 10 or 10:15 p.m. She told him Repolio had phoned her, etc. Suzuki told her she was terminated for not showing up for work. Suzuki told her how he had checked with Repolio and the manage- ment staff and no one knew about the phone calls. She told him Repolio had called. Suzuki told her Repolio had denied calling her. She asked what phone number was used and Suzuki gave two. One started with a "7" and the other began with a "5." She never had a phone number beginning with a "7." They discussed the Union. He asked her why she was organizing again and she said there were some improve- ments she'd like and just working conditions. Suzuki said he was taking it personally because it was his store. She repeat- ed this again.35 She then remembered for the first time that in the conversation she told Suzuki she was being "scape- goated" because she was organizing. She was sure that in this conversation Suzuki told her he was taking it personally because "they were organizing a union." In her pretrial affidavits to the Board, she made no mention of any alleged statements by Suzuki at the termination interview that he was taking this thing personally or taking her activity per- sonally nor did she make any mention of Suzuki allegedly asking her why she was organizing again. Her affidavit with respect to her termination conversation, given a day later, is by no means as far ranging as is her testimony about the conversation which she gave almost 5 months later. She testified in answer to my questions that she "as- sumed" she'd be working on the 29th because of what Repo- Ito allegedly said on the 27th. On the 29th he phoned her and told her not to come in. When I asked her if it might have been someone other than Repolio who phoned her, she said she was "pretty" sure. Earlier she had given no indica- tion of any doubt. She repeated that he identified himself and she recognized his voice. On May 29 he phoned her again and told her to check back on the schedule in the restaurant . On May 30, she went to the store and saw she had "no shows." She saw Repolio, "because he was sup- posed to call me." She asked him why she had the "no shows," when he had phoned her. Repolio denied he had phoned her and told her to check with Suzuki. She told him she had received the phone calls from him. He told her to see Suzuki . On the 30th she saw Suzuki and told him she'd received the phone calls from Repolio. He said he'd check into it.56 On redirect, Takahashi testified the work schedules are posted once a week at the Manager's desk. Note that early in her testimony she testified she had spoken to Repolio on the phone before May 27. Almost at the close of her testimony, she told me she didn't think she had ever been called by Repolio prior to May 27. She never testified she called Repolio. She also testified that not only did she ask Repolio why she had three "no-shows" listed but also he asked her why she hadn't shown up for the previous days. Firstly, I make it clear that if Suzuki did not believe Takahashi's statements that Repoho had called heron three separate occasions and told her not to show up, but rather 55 Castle9 56 The girl who allegedly was present at her termination interview on May 31 with Suzuki, Carol Thompson, never testified 415 credited Repoho's denials and fired her because he believed she had wilfully and deliberately failed to show up on three consecutive scheduled days for work and that her union activities were in no way responsible for her discharge, Em- ployer did not violate Section 8(a)(3) and (1) by discharging her for failing to work as scheduled without a valid excuse. Suzuki had never fired any one else. He testified Takahashi appeared to be honest and sincere. This was honest and sincere testimony by him. A witness, present at her termina- tion at Suzuki's request, Conroy, testified that he believed she was truthful insofar as someone might have called her claiming to be Repolio. She appeared to him "not to be lying." Suzuki testified that he did, indeed, check with Repo- lio but Takahashi "never impressed him as being a type of person that would lie." Nonetheless, from his investigation, although someone might have called her claiming to be Repolio, no one from management had called her and her "no-shows" were unexcused. This was his judgment. It was not mine to make on May 31. I was not in his shoes. I do not credit Takahashi's testimony as to Suzuki's al- leged statements about her and the Union at her termina- tion interview. Takahashi's testimony I do not find to be as strong as the Rock of Gibraltar by any means. Repolio's 57 is not without its faults, but based on it and close study of the relevant parts of the record and the probabilities and having evaluat- ed respective demeanors, I find he did not call her and speak to her at any time in late May. I refuse, based on this record, to find this Employer engaged in an almost gigantic ridicu- lous hoax to create such a pretext to get nd of probably the leading union organizer right before the election. 58 I realize what an effect such a discharge might have had on the upcoming election. But the fancied bubble of conspiracy would have burst if on any night, even by accident, Takaha- shi had shown up and had looked at the work schedule. What would have happened to the needed conspiratorial scheme had Takahashi called Suzuki about Repolio's al- leged conversations on May 27, 28, 29 or had she herself placed a call to Repolio or any other management represen- tative? Such plot would not be contemplated by an Employ- er, such as we have here, advised by its competent counsel. Less elaborate and easy to pierce schemes surely could have been and would have been used by this Employer had it been bent on eliminating Takahashi from her employment because of her union activities. I do not believe the Employer, with such competent coun- sel, would have falsified anything on the timecards in evi- dence which demonstrate her "no-shows." Repolio truthfully testified that when she failed to appear on May 26 Repolio attempted to reach her at the phone number she had given to the Employer but was unsuccess- ful. He also asked employee Bruce Conroy to attempt to contact her. Conroy tried but reported he also was unsuc- cessful . The next day Repolio told Suzuki, Takahashi had failed to show up. Repolio did not try to phone Takahashi when she failed to show on May 27. He referred it to Nicola, 57 He was in the Armed Services and not employed by the Employer when he testified 58 They knew she was the leading union protagonist for months If they were going to fire her on a pretext, I am sure they would have devised one much earlier 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his swing manager. Nicola reported to Repolio he had been unable to contact her that evening on the phone. Repolio did not work May 29. Repolio further credibly testified that on May 30 Takaha- shi asked him why her card revealed "no shows" for the 3 days. Repolio told her it was because she did not show up for work and he asked her why.59 Takahashi told him, ac- cording to Repolio, that someone had called her and told her she didn't have to come in. Repolio told her to see Suzuki. Later Suzuki asked him if he had telephoned Tak- ahashi on May 26, 27, or 29. He truthfully replied that he had not. I credit completely his testimony that he did not phone Takahashi between May 26 and 30 telling her not to report for work. I find Employer did not falsify the timecards in any way and the entries thereon were made in the due course of business. The timecard must be maintained accurately by government regulation. Repolio knew almost since he went to the restaurant in February that she was an active union organizer. He was so advised by the manager as of that time. Repolio made no recommendation as to the termination of Takahashi. The work schedules were written down by Suzuki on the basis of availability for work. They were posted at least a week before. Employees were "expected to check the sched- ule daily." I believe Repolio's testimony that Takahashi, when she first spoke to him on May 30, did not accuse him of having called her and telling her not to show up. While I find Repolio never phoned Takahashi as she testi- fied, it is possible someone else did and that she believed it was Repolio. I cannot ignore Conroy's and Suzuki's testi- mony, in general, that she "appeared to be telling the truth" when she, at least, incorrectly, said Repolio had called her and told her not to show up on May 26, 27, and 29. Thus I do not believe she lied when she testified Repolio phoned her on these occasions. I find he did not and that she was in error. I further find Suzuki believed Repolio and also believed that Takahashi, contrary to Respondent's rules, did not show up to work on 3 consecutive days without permission from management. I find this was the reason she was first suspended, pending a fuller investigation, and then discharged by Suzuki after he first conferred with Area Supervisor Dan Shiraishi who gave his approval for such action. Employer's Exhibit 5 sets forth the Employer's poli- cy that "Two days of unexcused absences by Employees constitutes grounds for automatic termination." That had been Employer's policy since January 12, when he dis- charged Takahashi. Suzuki, having listened to her and hav- ing spoken to Repolio as well as other representatives of management, believed Takahashi had violated this policy and that termination was in order. Employer's Exhibit 9 shows that Takahashi wrote in her own handwriting that she was available for work on Mon- 5s I cannot believe a man who allegedly told her not to show up 3 days in a row could have asked such a brazen question, particularly the Repolio I observed 60 N B. I have found as a fact that it was Takahashi who initiated the union discussion with Suzuki at her evaluation in March days, Fridays, and Saturdays, the days involved herein. It was prepared when she was first hired. Suzuki's credited testimony is set forth, in part, below. Suzuki first learned she hadn't shown up for work, as sched- uled on May 26, from Repolio on the afternoon of May 27. Repolio said he had not been able to contact her. Suzuki pointed out to him she was also scheduled to work on that evening, May 27. He told Repolio that if she didn't show he should leave a note in the manager's logbook. On May 28, Suzuki saw a note in the manager's logbook that Takahashi had failed to show. A "no show" was also noted on her timecard. On the morning of May 30 he found out that Takahashi had failed to show on May 29. Again there was a note in the manager's log and her timecard so showed. He unsuccessfully tried to reach Takahashi on May 29. On May 30, Suzuki asked Takahashi why she hadn't shown up to work on 3 scheduled days. She said Repolio had phoned her and instructed her that she did not have to show up. Suzuki then went to Repolio and asked him if he had talked to her on those 3 days. Repolio said, "No." Suzuki asked him if he were sure and Repolio said he was. He reported this to Takahashi and asked her if she didn't think Repolio's alleged three phone calls were unusual. She said she did. She said she tried to call the store once but thephone was busy ei Suzuki said he was suspending her and would give her a final answer the next day. She replied that he was "scapegoating" her which he denied. He told her she had broken a definite policy and he couldn't maintain his au- thority should he not take action.62 The next day he checked with any management people who might have knowledge that Takahashi was excused from work and found none. He then called the area supervi- sor and got the okay to discharge Takahashi. He called Takahashi at her home a couple of times at the number she had given and left a message when she was not home. That night he spoke to Takahashi in front of two other people. He told her he had checked her story out with his entire management team and found no evidence that anyone had phoned her and told her she did not have to come to work and that, after having checked with his supervisor, he'd have to terminate her. She claimed she was being scapegoated because of her union activities. He denied this and said she was terminated because she breached company policy. When she said she was a good worker, he said he had taken this into consideration and was sorry he was terminating her. Suzuki realized there was a "possibility" that someone claiming to be Repolio had called her but his research showed to him that no one connected with management had called her. He realized there was the possibility that Takaha- shi was not telling him the truth. What he considered as her half-hearted try in calling the restaurant, getting a busy signal, and not calling again, struck him as odd. I find this was very reasonable on Suzuki's part. In fact, no one in management had excused her absences. 61 One would be inclined to think that if she considered the alleged calls unusual she would have done more than only call once and get a busy signal 62 Although Takahashi attended a "rap" session that evening for which pay is ordinarily given, Suzuki directed there should be no pay on her timecard because of her suspension MCDONALD'S OF PALOLO I find that whether Repolio actually called her as she told Suzuki and Repolio and as she testified is unimportant. I cannot understand why anyone would phone her and try to imitate Repolio. I find he never called her. I also find that Suzuki, after making as thorough an investigation as he thought he could, determined, in light of all the circum- stances, that Takahashi, without any management approv- al, had violated Employer's policy by absenting herself from work on three successive scheduled occasions. For this rea- son and for this reason alone, Takahashi was terminated. She was not fired for any reason connected with the Union. I find Suzuki honestly believed Takahashi was absent with- out permission and his supervisor agreed that for this reason she should be terminated.63 Suzuki was afforded no reason to believe that Repoho engaged in a plot to have Takahashi discharged. In any event, I am convinced on the basis of the entire record that Takahashi was not discharged because of her union or other protected concerted activities. I credit entirely Conroy's corroboration of Suzuki as to the termina- tion interview. I conclude General Counsel has failed to establish by a preponderance of the probative and substantial evidence that Takahashi was discharged because of her union or any other protected concerted activities. IV THE OBJECTIONS TO THE ELECTION The Union did not appear at the hearing. If credible evidence in the record supported any or all of the objec- tions, very many in number, I would find such to be valid. I am not further going to prolong this so long Decision by enumerating, spelling out, and making particular findings as to each objection. Not one of them has been sustained by the credible evidence in this record. Evidence in support of 63 1 observe that Takahashi did not appear to me to be certain that it was Repolio who phoned her It was someone who identified himself as Repolio and who sounded like Repolio She appeared to have enough doubt about the circumstances to phone the restaurant and give up after one busy signal 417 any related to allegations in the consolidated complaint has been reviewed herein. No other evidence was offered by the Union. Concluding Findings Based upon the entire record, I conclude that this consoli- dated complaint should be dismissed in its entirety and that the Union's objections be found as without merit. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and the entire record, I make the following conclusions of law: 1. Employer has been an employer engaged in commerce within the meaning of the Act at all material times. 2. The Union Charging Party and the other unions in- volved in Case 37-RC-1749 are labor organizations within the meaning of the Act. 3. The record does not establish that the Employer has engaged in any of the unfair labor practices alleged in the consolidated complaint. 4. The record does not establish that any of the objec- tions to the election herein have meet. RECOMMENDED ORDER 64 Upon the basis of the foregoing findings of fact and con- clusions of law, it is recommended that the Board enter an Order dismissing the consolidated complaint, as amended, in its entirety. It is further found that the issues raised by the Union's objections herein are without merit, and the objections should be dismissed for such reason. 64 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.