McDonald's of Palolo, 404 (1973)

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 Subsidiaries, McDonald's of Aina Haina, McDonald's of Palolo, McDonald's of Kailua, McDonald's of Waikiki, 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, McDonald's of Hawaii Kai, McDonald's of Kaneohe,

McDonald's of Makiki and ILWU Local 142, Petitioner. Cases 37-CA-724, 37-CA-726, and 37RC-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 Respondent 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 recommended 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 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,2 conclusions, 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 Relations 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 Relations 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

5. 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, hereinafter referred to as the Union, on June 16, 1972, the General Counsel of the National Labor Relations Board, herein the Board, on September 27, 1972, issued an order consolidating 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 Employer, had violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein the Act. On September 27, 1972, a Supplemental Decision, order consolidating 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 consolidated complaint. Respondent has answered timely.2 The Supplemental 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 ending 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 observation 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 business 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, receiving 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 Employer Palolo have had common owners and managers who have formulated and administered a common labor relations 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 organization within the meaning of the Act.

1. 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 Employer 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 hereinafter 5 The alleged illegal suspension of a female employee herein called Takahashi 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 interrogate an employee about the union activities of his fellow employees? (d) Beginning in April and thereafter did Employer unlawfully hold employee meetings wherein it solicited employee grievances for the purpose of defeating the employees' union organizational efforts? (e) Commencing on or about April, did Employer grant its employees additional benefits such as steak breakfasts, gifts, and employee programs and contests for the purpose of defeating the employees' 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 activity? (g) On or about May 5, did Employer through its supervisor, 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 nosolicitation rule. It was too broad, in that it prohibited solicitation by employees anywhere on the Employer's 'premises.'...