McDonald's

National Labor Relations Board - Board Decisions

Nov 12, 1974

214 N.L.R.B. 879 (N.L.R.B. 1974)

McDONALD'S
Acute Systems , Ltd. d/b/a McDonald 's and Amalga-
mated Service and Allied Industries Joint Board,
Amalgamated Clothing Workers of America, AFL-
CIO. Cases 29-CA-3683 and 29-CA-3697
November 12, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On July 17, 1974, Administrative Law Judge Jose-
phine H. Klein issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs, and the Respondent filed cross-exceptions, a
supporting brief, and a brief in answer to the excep-
tions to the Administrative Law Judge's Decision.
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,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
i Contrary to his colleagues, Member Jenkins would find that the manner
in which Respondent distributed "vote no" buttons to employees was coer-
cive in nature and thereby violative of Sec 8(a)(l) of the Act He bases this
conclusion on the evidence that, at least on one occasion, Respondent's
President Mayer took the liberty of pinning such a button on the lapel of
employee Mendola. In Member Jenkins' opinion , an action such as this by
a top level representative of management can only lead the employees to
believe that they are being required to demonstrate their allegiance to man-
agement and, as such, it is inherently destructive of employee rights under
our Act
DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Administrative Law Judge- Pur-
suant to charges filed on January 7 and 17, 1974,' by
879
Amalgamated Service and Allied Industries Joint Board,
Amalgamated Clothing Workers of America, AFL-CIO
(the Union), against Acute Systems, Ltd., d/b/a Mc-
Donald's (Respondent), a consolidated complaint was is-
sued on February 28, alleging that during a preelection
campaign Respondent interfered with its employees' statu-
tory rights by coercively interrogating them concerning
their union activities through the use of "Vote No" buttons
and threatening elimination of Respondent's job rotation
practice if the employees chose to be represented by the
Union, in contravention of Section 8(a)(1) of the Act.2 and
that Respondent discriminatorily discharged employee
Olga Padilla on January 12 in violation of Section 8(a)(3)
and (1).
Pursuant to due notice, a hearing was held before me in
Brooklyn, New York, on April 29 and 30 and May 1. All
parties were represented by counsel and were afforded full
opportunity to be heard, to present oral and written evi-
dence, and to examine and cross-examine witnesses. The
parties waived oral argument at the end of the testimony.
Posttrial briefs have been filed on behalf of the General
Counsel and the Respondent.
Upon the entire record,3 together with careful observa-
tion of the witnesses and consideration of the briefs, I
make the following:
FINDINGS OF FACT
I. PRELIMINARY FINDINGS
The complaint alleges, the answer admits, and I find
that:
A. Respondent , a New York corporation , with its pnn-
cipal office and place of business in Brooklyn , New York,
is and has been at all times material herein engaged in the
operation of a retail restaurant . Since on or about Septem-
ber 5 , 1973, Respondent , in the course and conduct of its
business operations , has derived gross revenues therefrom
at an annual rate in excess of $500 ,000. Since on or about
September 5, 1973 , Respondent, in the course and conduct
of its business , has purchased and caused to be transported
and delivered to its restaurant foods, beverages , and other
goods and materials valued at an annual rate in excess of
$50,000 , directly from points outside the State of New
York. Respondent is, and has been at all times material
herein , an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
B. The Union is and has been at all times material here-
in a labor organization within the meaning of Section 2(5)
of the Act.
i Except as otherwise specified, all dates herein are in January 1974
2
National Labor Relations Act, as amended (61 Stat 136, 73 Stat 519, 29
U S C Sec 151 ei seq )
7 As corrected , essentially in clerical and similar minor respects, by an
Order issued simultaneously herewith The General Counsel's unopposed
motion to correct the transcript is also hereby granted
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNFAIR LABOR PRACTICES
A. Procedural Issues
1. Prior statements of witnesses
At the hearing and again in her brief, Respondent's
counsel objected to the fact that at several points in his
redirect examination of witnesses the General Counsel was
permitted to use the witnesses' pretrial statements.
Respondent's counsel maintains that the use of such state-
ments on redirect examination contravened "a standard
rule of evidence" that the General Counsel may not show
"prior consistent statements" by his witnesses and the as-
serted rule against impeaching one's own witnesses.
Most of the instances objected to arose in connection
with Padilla's testimony. Respondent's counsel had been
supplied five pretrial affidavits that Padilla had given to
Board agents. On several occasions in the course of exten-
sive cross-examination, Respondent's counsel showed Pa-
dilla portions of her pretrial affidavits and had her ac-
knowledge that such portions did not report certain facts to
which Padilla had testified on direct examination. On redi-
rect examination , over Respondent's objection, the Gener-
al Counsel sought to establish (with virtually complete suc-
cess) that the facts missing from the portions of the affida-
vits adduced by Respondent's counsel appeared at other
places in Padilla's pretrial affidavits.
Initially it should be noted that "the law with respect to
the admissibility of prior consistent declarations in general
has undergone considerable liberalization in recent years."
Copes v. United States, 345 F.2d 723, 727 (C.A. D.C.) But
even before the "liberalization," as an inherent principle of
fair play, many jurisdictions held prior consistent state-
ments admissible to rehabilitate witnesses who have been
impeached on cross-examination. Federal courts generally
permit prior consistent statements for rehabilitation. See,
e.g., United States v. Lewis, 406 F.2d 486, 492 (C.A. 7), cert.
denied 394 U.S. 1013; Copes v. United States, supra, 345
F.2d at 725-727; United States v. DeVore, 423 F.2d 1069,
1073 (C.A. 4), cert. denied 402 U.S. 950; United States v.
Alexander, 430 F.2d 904, 905 (C.A. D.C.):
[T]he prior statement was admissible, not so much for
the truth of its contents, but as evidence of the fact
that such a description was given to the police by the
witness, the victim of the crime, immediately after its
commission. It was used to rehabilitate the witness'
credibility after cross-examination and consequently
was not an inadmissible prior statement.
Even where prior consistent statements are not held ad-
missible as substantive evidence , their existence may be
shown where, as here, the apparent purpose of the im-
peaching cross-examination is to prove a witness' recent
fabrication. See 4 Wigmore , Evidence (Chadbourn Rev.),
sec. 1132 ; 4 Jones, Evidence sec. 26. 29, p. 241 (6th ed.
1972):
[A] rule of very general acceptance , even in those
states which exclude evidence of consistent statements
to rehabilitate an impeached witness as a general rule,
is that which applies when the impeaching inconsis-
tent statements indicate a recent fabrication on the
part of the witness as suggested by his testimony. Un-
der such circumstances it may be shown by way of
corroboration that the witness had previously made
statements which are consistent with his testimony.
Note should also be taken of Board decisions that, after
part of a witness' Jencks statement has been used on cross-
examination for impeachment purposes, the Administra-
tive Law Judge commits error if he rejects the General
Counsel's tender of the entire statement. J.G. Braun Com-
pany, 126 NLRB 368, 369, fn. 3 (1960), Baker Hotel of
Dallas, 134 NLRB 524, 525, fn. 1 (1961):
We agree with the Trial Examiner that [ the witness']
prehearing statements was admissible under these cir-
cumstances since her credibility, which had been
placed in doubt by Respondent's cross-examination,
could be properly evaluated only in the light of her
complete statement... .
There is no apparent reasonable basis for distinguishing
a situation like the present, where the witness' pretrial
statements were contained in several affidavits rather than
all in one.4 Presumably Respondent's cross-examination
had been directed to establishing that Padilla's testimony
contained recent fabrications. It is difficult to conceive of
anything more relevant to that question than prior state-
ments of the witness. While the timing of various pretrial
statements may be significant in the factfinder's appraisal
of credibility, the suppression of evidence relevant to that
appraisal distorts the facts and obstructs the search for
truth.
Counsel's method of cross-examining witnesses, particu-
larly Padilla, actually hampered the resolution of credibili-
ty issues. The selective production of parts of Padilla's pre-
trial statements eventually so flustered the witness that at
one point she "conceded" that she had failed to tell a
Board agent one fact which the General Counsel later
showed had been faithfully recorded in another affidavit.
To a considerable extent Respondent's counsel's cross-ex-
amination of witnesses appeared to be dictated by a possi-
ble excess of adversary zeal. See 3 Wigmore, Evidence
(Chadbourn Rev.), secs. 780-781.
The remaining instance in which the General Counsel
was permitted to use a pretrial statement involved witness
Sharon Dorman. On direct examination employee Dorman
testified that she had received a "Vote No" button from
Supervisor Don Cimagha. In response to leading questions
on cross-examination by Respondent's counsel, Dorm4n
conceded that it was "possible" that the button said "We
are No. 1" rather than "Vote No." She then was asked her
present recollection and said' "I don't remember exactly if
it was the Number 1 buttons or `Vote No.' " On redirect
examination, over Respondent's objection to the General
In objecting to the General Counsel' s using Padilla's affidavits,
Respondent 's counsel intimated that there might be inconsistencies among
them However, no such inconsistencies were elicited
McDONALD'S 881
Counsel's "utilizing his affidavits for the purpose of either
establishing prior consistent statements or the purpose of
impeaching his witness," the General Counsel was permit-
ted to adduce the information that Dorman's pretrial affi-
davit identified the buttons in question as "Vote No" pins.
Perhaps ironically, she then testified that, after having read
her pretrial affidavit, she had no present personal recollec-
tion as to which type of button she had first received from
Cimaglia.
As previously observed, the use of the affidavit was
clearly permissible to refresh Dorman's recollection and/or
to rehabilitate her to the extent that her testimony on direct
examination had been impeached by cross-examination. In
view of Dorman's pretrial affidavit and her direct testimo-
ny, the General Counsel was manifestly surprised by her
partial withdrawal on cross-examination. That being so, it
would be error to refuse to permit production of the state-
ment on redirect examination. See, e.g., Magic Slacks, Inc.,
136 NLRB 607, 608, fn. 1 (1962); 4 Jones, Evidence sec.
26:11, p. 197 (6th ed. 1972):
If a party has been misled and surprised by the testi-
mony of his witness, it is held that he may impeach the
witness by proving his former contradictory state-
ments. And modern decisions in some instances have
rejected the idea that it is necessary to show surprise
or hostility in order to justify the impeachment of a
party's own witness, and have permitted impeachment
on the broad basis of effective presentation of the true
facts.
ords produced. However, entirely reasonably, she declined
to agree to having the records received in evidence without
testimony. Her position, very well taken, was that, so far as
she knew, it was possible that such records might reveal
other absences or tardinesses and in fairness Respondent
should have the opportunity to study them in advance and,
if necessary, produce explanatory evidence.
Understanding that Board regulations leave no discre-
tion in the Administrative Law Judge to deny requests for
subpoenas, I issued one as requested. However, I denied
the General Counsel's motion that the record be kept open
for later receipt of the subpoenaed records. I did so on the
ground that, since the initial burden was on the General
Counsel to establish discrimination against Padilla, evi-
dence of disparate treatment was properly part of his case
in chief rather than a matter newly injected by
Respondent's presentation. Additionally, in exercising my
discretion, I considered the delay, as well as the substantial
expense and inconvenience to the parties and the Board,
entailed in adjourning and subsequently resuming the
hearing.
In his brief the General Counsel renews his request for
the receipt of the records in question. On reconsideration, I
hereby reaffirm my original ruling for the reasons hereto-
fore summarized.
It may be added that, in any event, as will appear hereaf-
ter, the result reached in this Decision would not be altered
or affected by the records sought, whether or not they
showed that employees other than Padilla were absent or
late on the day in question.
The suppposed rule prohibiting the impeachment of a
party's own witnesses has been generally abandoned as a
useless anachronism. See Rule 20 of the Uniform Rules of
Evidence, ALI Model Code of Evidence, Rule 106; 3A Wig-
more, Evidence (Chadbourn Rev.), sec. 903, p. 672.5
Accordingly, the evidentiary rulings permitting the Gen-
eral Counsel to use pretrial affidavits of witnesses Padilla
and Dorman are here reaffirmed and Respondent's motion
to strike evidence elicited thereby is denied.
2. Rebuttal evidence
As more fully set forth below, a principal issue in this
case was whether employee Padilla had been discriminato-
rily discharged on January 12, when she reported late for
work. In the course of Respondent's case, its witnesses tes-
tified that they were not aware of any other employees'
having been absent or late on the same shift. Upon the
conclusion of Respondent's evidence, at the end of the
third day of trial, counsel for the General Counsel stated
that he had no rebuttal witnesses but requested the is-
suance of a subpoena duces tecum for production of
Respondent's timecard records for the shift in question. He
further requested that the record of this proceeding be kept
open for receipt of the records upon their production.
Respondent's counsel cooperatively agreed to have the rec-
5 See Federal decisions collected in sec 905, fn 6, pp 680-681
B. Section 8(a)(1)
1. Interrogation-"Vote No" buttons
The complaint alleges that Respondent unlawfully inter-
rogated employees "by issuing to its employees `Vote No'
buttons to be worn on their uniforms while at work and
requesting employees whether they wished such buttons."
There is no question that within the week preceding Janu-
ary 11, when the election was scheduled, Respondent made
available "Vote No" pins. Management personnel wore
such pins and generally had additional pins handy to give
to employees. Further, pins were left at several places on
the premises, including a table and a bulletin board near
the timeclock, where they would be readily accessible to
employees.
Respondent's witnesses testified that at a management
meeting on December 11 it was decided that Charles A.
Mayer, Respondent's president and apparently sole owner,
should secure such pins and keep them safely locked away
until released at a time to be determined later. According
to Respondent, on or about January 2, Mayer started to
distribute other buttons, reading "We are No. 1" or "So-
mos Numero 1." 6 This slogan had originated some months
e The record does not reveal specifically whether "Number" and "Nume-
ro" were spelled out or abbreviated. The abbreviation might readily be
confused with the word "No" Nor does the record disclose the degree of
similarity in size, shape, and color of the different types of pins
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
earlier in the course of Respondent's athletic program. It
was given further currency through a Christmas gift from
the employees to Mayer. According to Mayer, the "We are
No. 1" pins were first circulated in connection with the
graduation of a training class around January 2 and were
then distributed through January II or 12. According to
Respondent's evidence, at a management meeting on Janu-
ary 7 it was decided that the "Vote No" buttons would be
released on the afternoon of January 8. According to Re-
spondent, at the December 11 and January 7 management
meetings instructions were given by Nancy Leahy and
John Cooke, labor relations experts for McDonald's Cor-
poration, that Respondent's supervisory personnel could
themselves wear pins but should not give any to or pin any
on employees unless specifically requested to do so by the
employees. Mayer testified that the "Vote No" pins were
first revealed at around I or 1:30 p.m. on Tuesday, January
8, and were all gathered up on January 10, after 4 or 4:30
p.m., when Respondent received notice of the cancellation
of the scheduled election.
Employee Leonard Mendola testified that as he was
working toward the end of the shift one night Mayer ap-
proached him from the rear and said it was time to go
home. As Mendola turned around to acknowledge the
greeting, Mayer pinned a "Vote No" button on Mendola's
shirt. Mayer then said good night and left. Mendola there-
upon removed the button and placed it on the shelf above
the sink at which he was working. In cross-examining Men-
dola, Respondent's counsel sought to establish that Men-
dola had asked for the button,7 but Mendola denied that
and counsel's suggestions were not corroborated, Mayer
later testifying that he had no recollection of any such
Mendola incident. In its brief, Respondent argues that
Mendola confused a "We're No. I" with a "Vote No" but-
ton because, in answer to leading questions, Mendola indi-
cated that the button pinned on him was the same as those
he first saw when he returned to work on January 3 after
an absence. He was not questioned about the "We are No.
1" buttons by name. Respondent also relied on Mayer's
testimony that he never pinned a button on any employee.
But Mayer's testimony in this connection was unconvinc-
ing. When asked if he had ever pinned a "Vote No" button
on any employees, he replied- "Only if an employee asked
me to." However, in answer to the next question, he said he
could not recall having had any employee ask him to. The
second answer cast considerable doubt on the candor of
the first.
Mendola impressed me as a forthright and responsible
witness. He is well educated, intelligent, and apparently
quite observant. On all the evidence, and careful observa-
tion of the witnesses' demeanor, I credit Mendola.
Employee Jennie Colon testified that when she arrived at
work one evening she noticed a "Vote No" pin on Supervi-
sor Don Cimaglia's necktie. When she went up to him to
examine it, Cimaglia asked her if she was for the Union,
and, when she replied in the negative, he gave her one,
which she put on. Cimaglia did not testify. Respondent
questions Colon's testimony because she placed the event
as having occurred on the Friday evening before the elec-
tion and, according to Respondent, the "Vote No" pins
were not available until Tuesday, January 8, and Mayer
testified that he collected all of Cimaglia's buttons after
receiving notice of the cancellation of the election at
"about 4:00, 4:30" on Thursday, January 10. But Colon
also testified that, although she regularly worked Friday,
Saturday, and Sunday, for a period she also worked on
Thursdays and frequently on Tuesdays. She also testified
that she wore the "Vote No" pin "one day before the elec-
tion." Particularly in view of Cimaglia's failure to testify,
the evidence is insufficient to establish that Cimaglia had
turned in all his "Vote No" buttons before Colon arrived
to begin work at 5 p.m. the day before the election.' In
addition, since Colon testified that she had also worn a
"We are No. 1" button, she undoubtedly could not have
confused the two types of buttons. Colon impressed me as
an honest and conscientious witness. Having observed the
witness and heard her testimony, I find it incredible that
she would have manufactured the Cimaglia incident. Ac-
cordingly, I credit her testimony but find that she errone-
ously placed the "Vote No" incident on Friday rather than
on Thursday, January 10, the day before the scheduled
election.
As previously noted, employee Sharon Dorman testified
on direct examination, and had previously stated in a pre-
trial affidavit, that she had received a "Vote No" button
from Supervisor Cimaglia. However, she could not recall
whether he had offered it or she had requested it. She later
solicited a second button from him. Her testimony, there-
fore, does not establish that Cimaglia took any initiative to
have her wear a button.
There was no further evidence that any supervisor had
offered "Vote No" buttons to any employees or had pin-
ned any on employees. On the other hand, Padilla affirma-
tively testified that, so far as she knew, no management
personnel had ever forced any employee to wear a "Vote
No" button.9 Employee LaManna wore a "Vote No" but-
ton, which he had "found." He testified that he had never
seen a manager pin a button on an employee.
The Colon-Cimaglia incident appears isolated and non-
coercive. Colon first affirmatively showed interest in the
button that Cimaglia was wearing. It was only in response
to her interest that Cimaglia asked if she was in favor of the
Union, presumably as a predicate for offering her a pin if
her reply indicated that she wanted one. There is no evi-
dence that he took the initiative in questioning her about
her union views. Similarly, the Mayer-Mendola incident
appears essentially isolated and noncoercive. Although
Mendola did not so characterize Mayer's action, it appears
to have been more a playful gesture than any serious cam-
paigning. It occurred at the end of the day, when people
were about to leave. Since Mayer apparently did not stay
on to see whether Mendola kept the button on or removed
8 Otero credibly testified that on January II an employee or employees
7 Counsel's questions were "When Mr Mayer came up to you didn't you pinned several "Vote No" buttons on him in the presence of Mayer
say to him `Can I have one of those buttons?"' and "You didn't say to him 9 Padilla testified that a rank-and-file employee had pinned a button on
'Can I have One' or 'Where can I get one of those buttons" her Obviously management is not responsible for that
McDONALD'S
it, it can hardly be inferred that Mayer's pinning the button
on Mendola was designed as a means of determining the
employee's views.
Although the specific instances recited appear not by
themselves to constitute coercive interrogation, as alleged
in the complaint, Board decisions do not provide a clear
answer to the question whether making the pins available
in itself amounts to unlawful, though subtle, interrogation.
In Garland Knitting Mills, 170 NLRB 821 (1968), enfd. in
pertinent part sub nom. LL.G.W.U. v. N.L.R.B., 414 F.2d
1214, fn. 4 (C.A.D.C., 1969), Trial Examiner Well held
that an employer did not violate Section 8(a)(1) by "the
wholesale distribution by the supervisor" of garment bags
identifying the holders as antiunion. The Board reversed,
citing Kawneer Company, 164 NLRB 983 (1967), enfd. in
pertinent part, 413 F.2d 191 (C.A. 6, 1969), and saying, 170
NLRB at 821: "It is clear, in the circumstances of this case,
that Respondent's supervisors, by passing out tags and ob-
serving who accepted or rejected them, in effect forced
each employee who was approached to manifest his
choice." Kawneer and Garland were followed in Gary Air-
craft Corporation, 193 NLRB 108 (1971), and Bancroft Mfg.
Co., Inc., 189 NLRB 619, 629 (1971). While the Board in
Garland qualified its finding by the phrase "in the circum-
stances of this case," it is not clear what specific circum-
stances were referred to. In the present case, there can be
little doubt that the supervisors were constantly in a posi-
tion to observe which employees chose to wear "Vote No"
buttons after they were made available near the timeclock,
where employees could not avoid seeing them. While Men-
dola testified that he immediately removed his button to
avoid unnecessary questions, Padilla testified that in Gen-
eral Manager Lewnes' presence she had picked up a "Vote
No" pin and put it on because "I had to do it." On the
basic view that an employee's acceptance or rejection of a
tendered "Vote No" button necessarily constitutes a decla-
ration of his position, it is difficult to see how making the
buttons prominently available at central locations does not
similarly amount to subtle interrogation, particularly when
supervisors are prominently wearing buttons.
The Board, however, has apparently eschewed a per se
rule prohibiting employers' distributing "Vote No" buttons
or similar material. In a relatively recent decision, Farah
Manufacturing Company, Inc., 204 NLRB 173 (1973), the
Board affirmed Administrative Law Judge Fitzpatrick's
finding that an employer did not run afoul of Section
8(a)(l) by making readily available "happy badges," which
would bespeak the wearers' antiunion preference. Adminis-
trative Law Judge Fitzpatrick there interpreted Garland as
applying only when the employer "pressures" employees
into wearing the insignia. In addition to Farah, Respondent
cites Jefferson Stores, Inc., 201 NLRB 672 (1973). That case
is clearly distinguishable from the present on the facts. The
Board there emphasized that: "The cards were distributed
at the doors of the plant. They had no pins with which they
could be attached to clothing, and employees obviously
were under no compulsion to wear them. Indeed, when
some employees started wearing the cards, they were asked
to remove them." However, the Board did conclude in Jef-
ferson that: "Where, as here , the distributed material and
the manner in which it is distributed, unaccompanied by
883
threats or promises of benefits, is not coercive , there is no
interference with the election ." And, as previously noted,
Farah requires employer "pressure" for a violation. While
it is not entirely clear analytically how the absence of
"threats or promises" or "pressure" negatives the "interro-
gative" effect of the distribution , 10 I understand Farah and
Jefferson as teaching that the distribution of such graphic
materials for display by employees does not contravene
Section 8(a)(1) if the distribution is unaccompanied by
"coercive" conduct.
Accordingly, for the foregoing reasons, I shall recom-
mend dismissal of the complaint insofar as it alleges unlaw-
ful interrogation.
C. ThreatsJob Rotation
1. The evidence
The complaint alleges that Respondent "threatened .. .
to eliminate Respondent's job rotation policy if the Union
won the election and became the collective bargaining
agent." Leahy testified that under McDonald's general mo-
dus operandi employees are originally trained for and ba-
sically assigned to specific jobs and, if the employees so
desire, they can later receive additional training for other
positions. In this way, they have the opportunity to per-
form a variety of operations.)) The testimony of employees
Dorman, Carolynn D. Hickman, Richard LaManna, and
Alice Goitia indicates that they had no basic assignments
but rather worked as roving "crew" members, doing "ev-
erything . . . nothing in particular." The evidence estab-
lishes that the majority of Respondent's employees prefer
rotation among jobs over full-time assignment exclusively
to one position. At one crew meeting Padilla requested that
Respondent provide more job rotation than then prevailed.
Mayer testified that those employees who prefer to remain
on a particular job or a limited number of positions are
permitted to do so, job rotation being wholly voluntary.
The Union generally negotiates agreements providing
forjob classifications, with wage rates varying according to
specific job classifications. On at least two occasions dur-
ing the Union's campaign to organize Respondent's estab-
lishment, several employees questioned Union Business
Representative Lionel Otero concerning the Union's policy
on job classification and rotation. He assured the employ-
ees that the Union had no intention or desire to thwart the
will of the employees and that, after the Union had become
collective-bargaining representative, if a majority of the
employees voted in favor or retaining job rotation, the
Union would abide by that decision and be guided accord-
ingly in its contract negotiations with Respondent. Otero
also explained, however, that the Union believed somejobs
should be paid at higher rates than others. Specifically,
since frying potatoes and grilling hamburgers entail the
risk of sustaining burns, such jobs should have compensat-
10 Whatever the employer 's intention , the creation of a situation in which
the employees' conduct will necessarily tend to indicate his views might be
seen as inherently "coercive "
11 Leahy's testimony concerning McDonald's employee assignment sys-
tem was not entirely clear or precise
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mg wage increments. Similarly, the position of cashier
should carry a wage premium because of the risk of mis-
takes leading to monetary loss. Respondent introduced
into evidence a three-page letter sent by the Union to all
employees which, inter alia, contained the sentence: "Your
seniority and classification will be protected."
Job rotation was also a subject of discussion between
employees and management representatives during the
preelection campaign. Dorman testified that, in answer to
questions by employees at the employee meeting on De-
cember 1, Mayer "said that if the Union got in like we
would be assigned and hired for like a certain particular
position and like, according to that, there would be no job
rotation." On cross-examination she said that Mayer "pos-
sibly" said, in counsel's words, "that he wasn't sure what
would happen but if the Union wanted different rates for
the employees that there might not be job rotation." Em-
ployee Hickman testified that in the December crew meet-
ing management said "that with the Union it was very pos-
sible that we would lose job rotation because of classifica-
tion of employees being hired for a specific job for a
specific amount of money and with that it was very possi-
ble for employees to lose rotation."
Employees testified to further discussion of the job rota-
tion question at the January crew meetings. LaManna tes-
tified that Mayer "said that if the Union was ever to pull
into McDonald's that our job rotation would probably
come to a halt." On cross-examination LaManna omitted
the "probably," quoting Mayer as having said definitely
"that job rotation would come to a halt" if the Union came
in. LeManna was emphatic about the substance of Mayer's
statements , although he could not recall the precise words
used. Employee Alice Goitia testified that at the January
meeting Mayer "said if the Union came in there wouldn't
be any job rotation." On cross-examination she was asked
if it was possible that Mayer had said he did not know
what would happen but there might be no job rotation.
Goitia replied: "It would be possible but I didn't hear
that." Mendola testified that at the crew meeting on Janu-
ary 9 General Manager Lewnes said "that under a Union,
if you are hired as a gull man you will die as one. But with
McDonald's we rotate people." Mendola did not retreat on
cross-examination but rather expanded on Lewnes' state-
ments to the effect that the rigidity of the Union classifica-
tion policy would prevent any job rotation.
Employee Goitia further testified that sometime in Octo-
ber, in the course of reciting the disadvantages of the
Union, Supervisor Cimaglia "said if the Union came in
there wouldn't be any rotation like if I was doing that
shake machine I would stay there doing the shake machine
5 days a week the way I was." She continued: "He said
that the Union wouldn't give job rotation, that is how he
said it. . . . There wouldn't be any job rotation if the
Union came in, in other words." She then heard Cimagha
tell other employees that they "wouldn't have any job rota-
tion."
According to Mayer and Leahy, in answer to employee
questions Mayer always said that he did not know what
would happen to job rotation if the Union came in but it
was possible that in contract negotiations the Union would
demand rigid job classifications, which would prevent job
rotation. According to them, when an employee asked how
there could be job rotation along with job classification,
Mayer laughingly replied that he did not know but perhaps
Respondent would have to change employees' wage rates
every hour. This remark obviously did not reflect serious
consideration of the question, since Leahy's testimony
made it clear that rotation does not operate on such a
short-time basis but rather involves training for the various
positions involved. Mayer also testified that at the January
crew meeting employees told him that the Union had said
that arrangements could be worked out under which job
classifications and job rotation could exist simultaneously.
Although Lewnes testified, he was not questioned on the
subject of job rotation. Thus the employee testimony con-
cerning his statements at the January 9 crew meeting were
undenied. Since Cimaglia did not testify, the statements
about job rotation attributed to him were uncontradicated.
Mayer testified that the matter of job rotation was never
discussed at management meetings attended by representa-
tives of McDonald's. However, it appears most unlikely
that the matter was not discussed, in view of the evidence
that Mayer was inexperienced in labor management mat-
ters; that the details of Respondent's preelection campaign
were worked out under the constant tutelage of Pete Pe-
terson, John Cooke, and Nancy Leahy, labor relations and
personnel experts employed by McDonald's Corporation,
Respondent's franchisor, and that the question of job rota-
tion was known to be the matter of perhaps greatest con-
cern to the employees. As testified to by him, Mayer's
statements to the employees were more carefully worded
than would be expected of an untutored employer.
2. Discussion and conclusion
As appears above, there is considerable conflict in the
testimony as to whether Mayer told the employees that if
the Union came in job rotation would be eliminated or, on
the other hand, that it might be eliminated. However, there
was no contradiction of the employee testimony that
Lewnes and Cimagha indicated that there would be no job
rotation if the Union came in.
There is no question, however, that Respondent attribut-
ed the elimination of job rotation, whether inevitable or
merely possible, to the Union. There was no suggestion
that any representative of management ever remotely sug-
gested that Respondent would take the initiative to elimi-
nate or curtail job rotation in retaliation for the employees'
unionization. Further, there is no affirmative evidence that
Respondent instigated discussion of the job rotation ques-
tion; so far as appears, the matter was discussed only when
raised by employees.
On the surface, there is some potential inconsistency be-
tween job rotation and job classification. However, as any-
one experienced in labor relations matters must know, the
two concepts are not irreconcilable and adjustments can be
made for their coexistence. Respondent made no attempt
to point out the possibility of any such adjustment. On the
contrary, Mayer in effect denied the possibility by laugh-
ingly suggesting that perhaps he could change employees'
wage rates every hour. Respondent's treatment of the job
rotation issue thus appears something less than fully can-
McDONALD'S
did. At least to some extent Respondent was willing to take
advantage of, if not actively exploit, the employees' fears
that unionization would sound the death knell for job rota-
tion."
There may be situations, as, for example, when dealing
with uneducated and socially vulnerable employees, in
which an employer's incomplete or slanted "prediction" of
the effects of unionization may be coercive and thus viola-
tive of the Act. Cf. Frank Smith and Sons Company, 211
NLRB 182 (1974). But the employer's assured right to free
speech must also be respected and kept free of unnecessary
restriction.
So far as appears, in the present case the employees are
all literate, most of them apparently being college students
or graduates. Presumably they had full capacity to weigh
and compare differing interpretations and conflicting
views. They had ready access to the Union and the evi-
dence indicates that the Union waged an active campaign.
Nothing stood in the way of open, two-way communica-
tion between the Union and the employees. Indeed, the
evidence establishes that employees did discuss the job ro-
tation problem with the Union business agent . Responsi-
bility for the Union's failure to allay the employees' fears
cannot be laid to Respondent nor can the Union's failure
to do so impose on Respondent the obligation in effect to
plead the Union' s cause . There is no evidence that Respon-
dent engaged in active misrepresentation of the Union's
position or that it unfairly imposed on employees who were
unable adequately to appraise the statements of both the
Union and Respondent.
Accordingly, on all the evidence, I conclude that the
General Counsel has failed to establish, as alleged, that
Respondent unlawfully threatened the employees with eli-
mination of job rotation if they chose to be represented by
the Union.
D. Section 8(a)(3)-Olga Padilla
1. The evidence
Padilla, a college student, started to work for Respon-
dent in September 1973, shortly after Respondent com-
menced operations. Her regular hours were 5 p.m. until 11
p.m., midnight, or 1 a.m. on Friday, Saturday, and Sunday
evenings. It is undisputed that she was a good worker,
whose wage rate was increased from an initial $1.95 to
$2.20 per hour by a 5-cent "probationary" raise, a 10-cent
increase in October, and a further 10 cents in December.13
The Union's organizing campaign began sometime in
October 1973. Padilla signed a union card on October 21.
12 On cross-examination Padilla testified concerning statements made by
employee Garcia at the January 5 meeting in part as follows "Q You didn't
hear him ask-hear him say that the union was going to classify employees"
A Oh, yes, yes, now I remember It was just a misrepresentation about the
classification and the rotation "
13 This finding is based on the testimony of Mayer, Respondent's presi-
dent, which substantially conflicts with purported statements of fact includ-
ed in leading questions which Respondent's counsel put in extended cross-
examination of Padilla , whose memory of her wage history was admittedly
vague Cf, e g, 4 Jones, Evidence sec 25 6, p 121 (6th ed 1972), Code of
Professional Responsibility, Cannon 7, EC 7-24
885
On one apparently brief occasion she passed out union
literature on the street near the restaurant. She also solic-
ited union authorization cards from some employees, vis-
ited some employees' homes, and held a few meetings for
the Union. However, her activities were apparently rela-
tively low-keyed and there is no evidence that
Respondent's representatives knew of them before January
9, 1974, as discussed below.
Respondent conducts monthly "crew meetings ," attend-
ed by all employees and supervisory personnel. The union
campaign was discussed on December 1 and January 5 at
the meetings. Conducted by Mayer and attended by Leahy
as well as Respondent's supervisory personnel. On January
9, Chris Lewnes, Respondent's general manager and
Mayer's "right hand," held a crew meeting for the approxi-
mately 12 employees who had been unable to attend the
regular meeting conducted by Mayer. In the January meet-
ings, the election, which, by order dated December 14, had
been scheduled for January 11, was a major topic of dis-
cussion.
Respondent's representatives stressed the importance of
all employees' voting in the election and volunteered to
provide transportation for any employees who might need
it. Although Mayer stated his opinion that no Union was
necessary or desirable at the store , he advised the employ-
ees to vote according to their own consciences and there is
no evidence that he exerted any pressure on, or even re-
quested, the employees to vote against the Union.
Among the specific subjects discussed, principally in re-
sponse to questions put by employees, was the question of
"job rotation," considered above. Padilla requested in-
creased rotation and Mayer said there would be more.14
Padilla also raised the question of wage increases, main-
taining that raises of only 5 cents per hour were unduly
low. Mayer observed that Padilla had received raises of
more than 5 cents and that, in view of monthly perfor-
mance reviews, with possible quarterly increases based
thereon, specific raises of 5 cents per hour were not unrea-
sonably small. Mayer and Leahy denied that Padilla linked
her wage comments with the Union and in general indi-
cated that she had not been outspokenly pro-Union.
Padilla's testimony similarly does not reflect any expressed
partisanship. However, employee Hickman testified that
Padilla "as she spoke, seemed to speak very strongly in
favor of the Union, trying to persuade people to vote in
favor of the Union."
At the end of the January 5 meeting, having previously
secured Mayer's permission to do so, Padilla invited all the
employees to attend a party that she was hosting that eve-
ning at her uncle's home. After the crew meeting Padilla
asked to speak with Mayer individually. Mayer invited her
to his office for the requested discussion. Mayer then called
in Leahy because, according to Mayer, he felt he might not
be able to answer all of Padilla's questions. An office em-
ployee was also present. Padilla said that she had spoken
with union representatives and that on first blush their
14 This finding is based largely on Padilla's testimony, which is here cred-
ited despite the apparent attempt of Respondent 's counsel to establish,
through selective production of pretrial affidavits and attempted suppres-
sion of other pretrial statements , that Padilla's testimony was a recent fabri-
cation
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statements and position seemed correct but on subsequent
consideration she had some questions. Accordingly, she
wanted to hear the Employer's side of the matter. During
the pnvate meeting in Mayer's office many subjects were
touched upon, including job rotation. Padilla expressed
great pleasure at working for Respondent, where she en-
joyed a "family" or "home" atmosphere. Padilla indicated
that, although she had not fully made up her mind, she
thought she would probably vote against the Union. She
apparently volunteered this information, since there is no
allegation or evidence that she was questioned on the sub-
ject.
Toward the end of this private meeting, Padilla said that
she had invited a union representative (or representa-
tives) is to the party that evening and asked Mayer if he
thought the employees might resent her doing so. Mayer
apparently said he did not know. Thereupon Padilla asked
if Mayer objected to her having invited a union representa-
tive. He replied that "he didn't mind at all," believing the
employees should hear both sides. Thereupon Padilla said
that she would telephone Mayer to report on what tran-
spired at the party.16 Mayer and Leahy told Padilla that it
would be improper and "dangerous" for her to do so. At
that point, according to Mayer and Leahy, Padilla said she
could safely call from a phone other than that where the
party was being held. Again Mayer and Leahy advised Pa-
dilla not to call. She did not telephone and did not thereaf-
ter offer any information concerning what transpired at the
party." On Monday, January 14, employee LeManna
briefly reported to Mayer concerning the party. But there
is no allegation or evidence that Mayer or any other repre-
sentative of Respondent solicited such report or otherwise
engaged in surveillance of or interrogation concerning
union activities.
Sometime in December Padilla, apparently in anticipa-
tion of her Christmas vacation from school, asked Supervi-
sor Paul Majkiewicz for assignment to additional hours of
work. He granted her request and she apparently worked
one (or possibly two) Wednesday evenings. There is agree-
ment that Padilla made a second request for additional
working hours, but there is sharp conflict as to when, and
the circumstances under which, the second request was
made. According to Majkiewicz, Padilla's first request was
made about a week before Christmas and the second
around Christmas. Majkiewicz testified that he did not
schedule her for Wednesday, December 26, because busi-
ness is slow during Christmas week. However, he did
schedule her for January 9, but she did not work that shift.
Majkiewicz did not know why she did not, but there is no
15 Padilla testified that she had invited one union representative but that
around seven or eight showed up Employee LaManna testified that some
13 or 14 or even possibly as many as 18 union representatives attended
Respondent maintains that Padilla said she had invited union representa-
tives (plural). While I credit Padilla, I do not consider the conflict to be of
substantive significance
16 Padilla testified that her suggesting the telephone call was in the nature
of "a joke" I discredit this characterization
7 Fairly read, a statement by Padilla in a pretrial affidavit to the effect
that she did not "tell Mayer anything about the party " meant only that she
had not reported after the fact It was not, as Respondent 's counsel labored
to establish , inconsistent with Padilla's testimony and another pretrial state-
ment concerning her advising Mayer in advance of the party
suggestion that her absence was a dereliction of duty.
Padilla, on the other hand, maintained that her second
request was made on January 9, apparently in anticipation
of the inter-semester academic break, which was to begin
around January 16, after her last final examination.18 She
wanted to work daytime hours Monday through Friday
rather than evenings on the weekends during her school
recess. Padilla testified that she went to the store on Janu-
ary 8 to request additional working time but Majkiewicz
was not then on duty. She ascertained that he would be on
duty the next evening, Wednesday, January 9. On that eve-
ning, accompanied by her brother, George, and Angelo
Mendola, her cousin, she entered the store. She was car-
rying an open parcel of union literature, which she took to
a security guard with a request that he keep it for her while
she had something to eat. Padilla testified that she then
went to Majkiewicz and made her request for extended
hours. Then she purchased some food and took it to a
table. Majkiewicz went to the guard's table and so did Pa-
dilla. Majkiewicz asked whose literature it was on the table
and both the guard and Padilla said it was hers. Majkiew-
icz told her not to distribute it on the premises and she then
went to her table to eat. Meanwhile, George and Angelo
attempted to distribute some union literature and spoke to
some employees. Their conversation became animated and
their voices were raised-in Padilla's words, they became
"rowdy." Majkiewicz approached the boys and asked them
to lower their voices and to refrain from distributing any
literature on the premises because of Respondent 's no-so-
licitation rule. They apparently complied with the request
and they left with Padilla shortly thereafter. On her way
out of the shop, Padilla stopped at the guard's desk to pick
up her literature and apologized to Majkiewicz for her
companions' misconduct. He accepted the apology and as-
sured Padilla that everything was all right.
Majkiewicz's version of the events was considerably dif-
ferent . He dented that he had spoken with Padilla about
her hours or about distributing literature on the premises.
In essence he corroborated Padilla's testimony as to his
encounter with George and Angelo and as to Padilla's
apologizing for their conduct. Majkiewicz denied having
asked whose literature it was on the guard's table but he
acknowledged that he had seen Padilla place it there and
that he knew it was union literature.
The original charge in this case was filed on January 7,
alleging only an unlawful wage increase on January 4 and
referring to the then scheduled election. Around 4 or 4:30
p.m. on January 10 Respondent was advised, first by tele-
gram and then by hand-delivered letter, that, because of
the charge, the scheduled election was being postponed.
The evidence indicates that many employees expressed dis-
pleasure when, shortly thereafter, they were informed of
the cancellation. Leahy testified that the pervading atmo-
sphere was then emotionally charged.
A management meeting was held at that point. Leahy
testified that during the meeting the participants heard the
name "Olga" being "chanted" about five or six times in a
"taunting" and unpleasant tone. She did not know who
is A schedule for the 1974-75 academic year shows the winter recess as
running from January 21 through February 2 Presumably the prior year's
recess covered a similar period
McDONALD'S
was doing the "chanting," or where it was occurring. Su-
pervisor Don Cimaglia was dispatched to have it stopped.
Cimaglia was out of the meeting room for only a minute or
two and the "chanting" stopped. He was not questioned
upon his return and did not make any report. Cimaglia did
not testify.i9 Supervisor Malkiewicz, who, like Padilla,
worked the shift beginning at 5 p.m. on Friday, did not
hear the "chanting." That evening Padilla had apparently
friendly dealings with both employees and at least one su-
pervisor. She was in good spirits when she left.
Padilla was scheduled to report for work at 5 p.m. on
Saturday, January 12. She testified that she arrived at 5:05
p.m. Having been discharged from an automobile near the"
corner of the block in which the restaurant is located, she
proceeded to walk along the sidewalk toward the store en-
trance. As she was approaching the entrance, Mayer
walked out of the store toward her. According to Padilla,
when they met, Mayer, looking at his watch, said: "You
realize that you are five minutes late. . . I already have a
replacement for you." Padilla further testified that in reply
she said that she "knew this was going to happen." Since
she had been thinking of quitting, she said: "I quit now,"
whereupon she took her uniform (a blouse) out of her
purse and gave it to Mayer. He said she could pick up her
check on Friday, the next regular payday. She left and he
returned to the store. In testifying, she explained that she
had been thinking of resigning sometime in the indefinite
future because work was interfering with her studies. She
testified further that management and "a few" employees
had recently become unfriendly and had made her feel un-
welcome. It was the hostile attitude of management since
learning she was a union activist that had led her to con-
clude that she would be fired for her union activities. How-
ever, she denied that the unpleasant attitude toward her
had motivated her resignation in response to Mayer's state-
ment.
On cross-examination Padilla explained her confidence
that she was only 5 minutes late by reference to the fact
that she had been picked up at her home at about 4:50 and
it takes only a very few minutes to drive the short distance
from her home to the store. Under persistent cross-exami-
nation, she conceded that she might have been 10 or 15
minutes late, but persisted in her insistence that she was
not as much as 20 minutes late.
Padilla testified that she understood Mayer's statement
about her having been "replaced" as meaning that she was
discharged. On leading questions by Respondent's counsel,
Padilla conceded that she understood that, to some extent,
managers were "supposed to" obtain replacements for em-
ployees who did not show up, but so far as she knew that
had never been done. She remained resolute in her under-
standing that Mayer had used "replacement" as equivalent
to "discharge," rejecting counsel's suggestion that "replace-
ment" would reasonably be understood as referring only to
19 Conceivably this incident formed the basis for Respondent 's counsel's
otherwise unexplained questioning of Padilla as follows "Don't you know
as fact that Don Cimaglia made the employees stop harassing you'1"
Padilla's negative response stands uncontradicted Counsel's "question" ob-
viously has no evidentiary value See 4 Jones , Evidence sec 25 6, p 121 (6th
ed 1972)
887
suspension for the one evening involved.
Mayer testified that a few minutes after 5 p.m. on Janu-
ary 12 he left his office downstairs and went upstairs to
check on the shift change . He looked at the "battle plan,"
which is a chart of all scheduled work assignments for the
day. He then checked to see that the dining room was clean
and proceeded to the front of the store , where he spoke to
Tony Miranda , the manager on duty. When Mayer in-
quired who was "among the missing ," Miranda mentioned
only Padilla . Mayer did not explain why he asked Miranda
who was absent immediately after having himself exam-
ined the battle plan. Miranda did not testify . Mayer testi-
fied that he talked to Miranda for 5 minutes "about the
store and how things were set up and we were going to
come into a busy time , a busy night ." He then walked up to
Malkiewicz , who, not being on duty, had just entered with
his girl friend . The three people conversed socially for 10
minutes when, seeing Padilla approaching , Mayer excused
himself and went out on the sidewalk to meet Padilla. Con-
cerning the encounter , Mayer testified:
I said Olga you are twenty minutes late. She said I
know, I came to resign, I don't feel welcome here. I
said okay, we will have your paycheck ready for you
on Friday with the rest of the payroll. She handed me
her uniform and walked away.
Lewnes corroborated Mayer's testimony as to the time
of Padilla's arrival by reference to the fact that Lewnes had
hoped to make a deposit at the bank and return a rental
car by 6 p.m. When he finally left, with the money to be
deposited at the bank, at around 5:20 to 5:25, he passed
Padilla and Mayer talking on the sidewalk. The only thing
he heard was Mayer's using the word "late." Lewnes testi-
fied that he checked the "battle sheet" on numerous occa-
sions during the day, including 4:45, 4:50, and 5 p.m. He
noted that Padilla had not arrived but he "didn't see any
other names." He was unable to state whether any other
employees had failed to show up or had come in late. He
said he marked Padilla "absent," and then added that
"[t]here is a difference between late and absent." Subse-
quently, however, Lewnes testified that he was not sure
whether he had marked Padilla as "late" or "absent" on
the battle sheet, but thought it was "abs." He had no expla-
nation for having marked Padilla as either late or absent at
about 5:05, despite considerable testimony that employees
frequently report late and Mayer's testimony that unless an
employee was more than 45 minutes late he was permitted
to work.20 Lewnes testified that he particularly noticed
Padilla's absence "because Olga worked at the most critical
times in a McDonald's operation which is Friday evening
and Saturday evening" and one "remember[s] all good em-
ployees." However, no consideration was given to replac-
ing Padilla that evening because Respondent "had ade-
quate numbers of people" or a "super abundance" of
workers. Lewnes did not recall whether any reassignment
of personnel was made when Padilla's absence was noted.
Majkiewicz similarly corroborated Mayer's testimony as
20 Mayer testified that the 45- minute grace period has since been reduced
to 30 minutes
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the time of Padilla's arrival by reference to a rental car.
Majkiewicz testified that he had gone to the restaurant in
order to pick up a rental car and return it. He was anxious
because he did not know whether the rental agency closed
at 5 and it was about 5:15 when he arrived at the store. It
was about 5 minutes after Majkiewicz's arrival that Padilla
appeared.
There is no dispute that Padilla did not visit the restau-
rant to get her final check until about 3 weeks after her
termination.
2. Discussion and conclusion
Mayer's version of the conversation between him and
Padilla on January 12 does not ring true. First, it should be
noted that January 12 was a cold, windy day, with the
temperature ranging from 21 to 32 degrees?' Mayer was
dressed in his working clothes, with no overcoat. While it
may be true, as he testified, that he frequently has occasion
to go outside to check on such matters as the condition of
the parking area and refuse containers, it is quite a differ-
ent matter for him to break off a social conversation and
rush outside to reprimand an employee for being late when
such reprimand could readily be given at Mayer's or an-
other supervisor's convenience in the comfort of the warm
interior. The evidence is clear that supervisory personnel
frequently speak to employees in the store about their
being late. Mayer conceded that he wanted to be sure to
speak to Padilla before she entered the store, but he gave
no satisfactory explanation for this desire.
Mayer testified that when employees quit "generally
they talk to either [Mayer] or one of the other managers,"
who "inquire as to the reason." Mayer did not inquire as to
Padilla's reason for quitting. On cross-examination by
union counsel, Mayer testified:
Q. . . . [W]hy didn't you ask her what is the basis
of her feeling that she is not welcome?
A. Because I was shocked. . . She was very de-
termined. She told me that she had come to resign, I
was surprised. Our conversation probably lasted a
minute.
But both Padilla and Mayer testfied that he had told her
she could pick up her paycheck the next Friday. An em-
ployer "shocked" or "surprised" by the unanticipated res-
ignation of a valued employee would normally be expected
to react by asking for an explanation rather than by the
more hostile and seemingly calculated reference to a pay-
check It is further difficult to understand the basis on
which Mayer concluded that Padilla was "very de-
termined" to quit if, as Mayer testified, he did not ask her
why she felt unwelcome and the conversation was extreme-
ly brief. Respondent's witnesses, as well as Padilla herself,
testified that as of the previous day, Friday, January 11,
Padilla had given no evidence of unhappiness or dissatis-
faction. That being so, it is incomprehensible that the very
next day, so to speak "out of the blue," she would abruptly
quit. Padilla's temperament, as revealed by her demeanor
as a witness and by her prior course of conduct , renders it
virtually impossible that she would quit in the manner de-
scribed by Mayer. An employee who would apologize for
the "rowdy" conduct of her brother and cousin, as Padilla
had done only 2 days before, would not rudely quit with no
advance notice. Had she decided to quit forthwith, she
would have, at the very least, telephoned before the sched-
uled time to report.
In its brief, Respondent says: "[Padilla's] claim that she
had intended to resign because the work was interfering
with her school work is hard to believe in view of her addi-
tional claim that 3 days earlier she had requested addition-
al working hours." But a request for changed and expand-
ed hours during a school recess is entirely consistent with
an intention to quit at an indeterminate date in the future,
after the resumption of classes . On the other hand , as sug-
gested by Respondent 's statement , a decision to quit imme-
diately would be totally inconsistent with her request for
additional hours.
Viewed in isolation, Padilla's version of the January 12
confrontation may seem superficially almost as improbable
as Mayer's. While the record establishes that Respondent
was opposed to unionization of its employees, there is no
evidence of strong Union "animus." So far as appears, Re-
spondent kept its preelection campaign against the Union
within permissible bounds. Further, although Mayer testi-
fied that he knew the identity of some union activists, in-
cluding Padilla's cousin Angelo, there is no evidence that
Respondent's representatives knew of Padilla's active role
in the organizing campaign, or even of her pro-Union sym-
pathies, before January 9, when she visited the store with
her brother and cousin. Other employees had apparently
been more open about their union support without unto-
ward results. Thus, on first blush it might appear incredible
that Respondent would discriminate against Padilla
But human conduct is ordinarily specifically motivated
The surrounding circumstances and the forces guiding con-
duct may provide the key to motivation which is unarticu-
lated or consciously concealed. Such appears to be the case
here. A brief review of the relevant chronology reveals an
interesting pattern.
As late as January 5 Padilla expressed her pleasure at
working for Respondent, told Respondent's representatives
that she probably would vote against the Union in the up-
coming election, and volunteered to "spy" on the Union
for Respondent. Two days later, on January 7, the Union
filed an unfair labor practice charge alleging an unlawful
wage increase and expressly noting that an election was
then scheduled for January 11. Since the wage increase
allegation was not included in the subsequent complaint
and in the present hearing there was no evidence suggest-
ing that any such general increase had been given, one may
assume that it could not be substantiated.22
Two days later Padilla visited the store. In full view of
Supervisor Majkiewicz she left an open packet of union
literature on the security guard's table. There is no question
that least at that time her union sympathy and activity
21 Despite the low temperature, Lewnes described that afternoon as "Indi- 22 Respondent raised no question as to the sufficiency of the charge to
an summer," because, as he explained, the sun shone support the specific complaint
McDONALD'S
became known to a management representative. Padilla's
campanions called attention to the groups' union support
by creating something of a commotion. The conduct of the
three young people at that time seems clearly calculated to
identify them unmistakably as union partisans . Although
Majkiewicz denied having told Mayer about this before
Padilla's termination and Mayer denied knowledge of
Padilla's union role at the time of her termination,
Majkiewicz's knowlege must be imputed to Respondent. It
is incredible that the incident went unreported to Mayer.
The chronology thus reveals the following pattern. Padil-
la, a union sympathizer, either actively concealed her
union role or at least kept it very low-keyed and inconspi-
cuous, thus retaining the relationship of trust and confi-
dence with management that she enjoyed as a superior and
valued employee. As the election date approached the
Union apparently became discouraged as to its chances of
victory.
On January 5, Padilla, using her position as a trusted
employee, volunteered to "spy" on the Union for Respon-
dent. Two days later, just 4 days before the scheduled elec-
tion, the Union filed an unfair labor practice charge alleg-
ing an unlawful general wage increase and specifically re-
ferring to the scheduled election. In view of the apparent
absence of any evidence to support that charge, one would
not be unduly cynical to suspect that the Union was simply
interested in "blocking" the election Nor would it stretch
cynicism too far to suspect that Padilla's unsolicited offer
of January 5 was an attempt to "entrap" Respondent into
committing an unfair labor practice as a more supportable
predicate for the desired "blocking charge."
If Respondent was not actually aware of Padilla's du-
plicity on January 5, it must have become painfully aware
of it on January 9, on her visit to the restaurant with her
brother and cousin. While Padilla did not testify as to
when management's attitude to her became unpleasant or
hostile, obviously the change did not predate her termina-
tion by very long. She had received a very good perfor-
mance rating and wage increase around January 4. On Jan-
uary 5 she felt free to request a personal meeting with May-
er and in testifying gave no indication that the meeting had
been other than amiable and harmonious. That Respon-
dent may have had some suspicion is suggested by Mayer's
having Leahy and an office employee present during his
conversation with Padilla.
Even on Mayer's version of the facts, he was hostile or
antagonistic to Padilla on January 12 He went outside to
reprimand her for being late, although she had no prior
history of undue tardiness. He confronted her with the ac-
cusation rather than asking her why she was late, although
he appears generally to have been a thoughtful employer
who understood the problems frequently encountered by
working students. And he accepted her "resignation" with
remarkable alacrity despite her good work record and the
fact that she worked the weekend evening shifts, which
Respondent found most difficult to staff adequately.
In view of the wealth of uncontradicted evidence that
employees were often late without consequence and were
not prevented from working unless they were more than 45
minutes late, I find it essentially immaterial precisely how
late Padilla was on January 12 But I do find very signifi-
889
cant the precision with which Respondent has sought to
establish the time of her arrival. It seems unusual that three
people (Mayer, Lewnes, and Majkiewicz) would be able to
state precisely, within a very few minutes , just when one
employee arrived late on a particular day, especially when
none of them was able to state whether any other employee
had failed to show up. On the assumption that these three
management representatives were testifying accurately, it is
a reasonable inference that Padilla was the object of un-
usual interest and concern at the time. I would not be un-
reasonable to conclude that Respondent was positively on
the alert to "get something on" Padilla.
While none of the parties has suggested the foregoing
specific analysis of the facts, and recognizing that the bor-
derline between speculation and inference is tenuous, I
find it a reasonable inference from the evidence, and thus
find that on January 12, Mayer, motivated by hostility
against Padilla because of her recently disclosed duplicity,
told her she had been replaced.
Mayer's disapproval of Padilla's essentially dishonest
conduct is fully understandable. However, since Padilla's
duplicity concerned her union activities , it was probably
"protected" and disciplinary action taken against her be-
cause of it would tend to discourage union membership in
violation of Section 8(a)(3) and (1). Cf. Wade & Sons, Inc.,
207 NLRB 440 (1973).
But the conclusion that the adverse action against Pad-
illa in retaliation for her duplicitous conduct was discrimi-
Union apparently became discourage as to its chances of
an unlawful discharge, it is essential to determine whether
Padilla was actually discharged. As Respondent contends,
an employer is not necessarily guilty of violating Section
8(a)(3) when an employee resigns in anticipatory fear of a
discriminatory discharge, even though such fear may be
justified. Action Wholesale, Co., Inc., d/b/a A.L. French
Co, 145 NLRB 627 (1963), enfd. 342 F d 798 (C.A. 9,
1965).
As stated above, I credit Padilla's testimony that Mayer
said, in substance, that Padilla was late and that he had
already obtained a replacement for her.23 The question
thus becomes whether that statement amounts to a dis-
charge.
Padilla testified that she understood Mayer as meaning
that she had been fired when he said that she had already
been replaced. Through leading questions on cross-exami-
nation of Padilla, Respondent's counsel attempted to show
that "replacement" would mean a temporary action, i.e.,
for the particular shift for which Padilla was late. Padilla
testified that she had never known of an employee's being
so "replaced." Mayer later testified that he had not used
the word "replaced" in his conversation with Padilla; that
the term is not used in his operation; that Respondent had
"an over abundance of employees at that time;" and that
Respondent "hadn't called anybody up to replace anybody
23 1 do not credit her testimony that Mayer said she was 20 minutes late
Nor do I credit Mayer's testimony that he said she was 5 minutes late I find
that the references to specific times were in the nature of "self-serving"
embroidery to the testimony of both witnesses
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on a shift or to take over for anybody . . . for months." 24
The fact that Padilla may have assumed that Mayer's
statement meant she had been fired does not establish that
as a fact. Nor does her failure to ask Mayer what he meant
necessarily establish that she chose to quit voluntarily. On
the other hand, while Mayer's failure to correct Padilla's
apparent "misunderstanding" supports the inference that
he was at least willing to have her depart, it does not estab-
lish that he affirmatively fired her.
Mayer had been acting throughout the union campaign
on detailed advice from McDonald's Corporation's expen-
enced labor relations officers. He testified that no employ-
ee had ever been discharged "on the spot" and all dis-
charges and resignations were discussed with McDonald's
representatives. It is unlikely that, under the circumstances,
he would take the unprecedented action of discharging a
superior employee on the spot for one tardiness. It is at
least equally plausible that Mayer meant merely to "sus-
pend" Padilla for that evening (and possibly at the same
time to start "building a record" for discharge at a later
time). There is insufficient evidence in the present record
to determine whether, as a matter of fact, Mayer's state-
ment to Padilla amounted to a notice of discharge or a
24 Respondent's restaurant had been in operation for only about 4
months
1-day suspension. Padilla's impulsive quitting in response
to Mayer's statement prevents a definitive answer to the
question 25
Accordingly, since the burden was on the General Coun-
sel, the complaint must be dismissed for failure of proof
that Padilla was discriminatorily discharged.
CONCLUSION OF LAW
Respondent has not violated Section 8(a)(1) and (3) of
the Act as alleged in the complaint.
Upon the foregoing findings of fact and conclusion of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I recommend the following:
ORDER26
The complaint in this proceeding is dismissed in its en-
tirety.
25 It is unnecessary to determine whether Respondent would have been in
violation of Sec 8(a)(3) for suspending Padilla for one night if she had not
chosen to quit forthwith
26 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes