McDonald's Carry-Out Restaurant

National Labor Relations Board - Board Decisions

Apr 8, 1970

181 N.L.R.B. 1012 (N.L.R.B. 1970)

1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harold Leverson and John Bohling d/b/a
McDonald 's Carry-Out Restaurant and Larry
Stafford , and Gary Beckham , and James McGary.
Cases 23-CA-3349-1, 23-CA-3349-2, and
23-CA-3349-3
April 8, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On October 6, 1969, Trial Examiner Benjamin K.
Blackburn issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a memorandum in
support of the exceptions.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has considered the Trial Examiner's
Decision, the exceptions and brief, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner only to the extent consistent herewith.
1. The Trial Examiner found that Leverson's
interrogation of the Charging Parties, Beckham,
Stafford, and McGary concerning their
organization, was, under the circumstances, coercive
and in violation of Section 8(a)(1) of the Act. We
concur in this finding, to which Respondent did not
except.
2. The Trial Examiner found that Respondent
discharged Beckham, Stafford, and McGary on
April 19, 1969, because they had engaged in
concerted activity in organizing and conducting a
meeting with fellow employees on April 7 and that
the discharge, therefore, violated Section 8(a)(1) of
the Act. We do not agree.
The Charging Parties were employed at
Respondent's Capital Plaza restaurant. Discontented
with a change in pay date they organized a meeting
on April 7 with fellow employees which involved
some discussion of grievances, selection of officers,
discussion of dues and scheduling of a second
meeting, which, in fact, was never held. Both Night
Assistant Manager Moreland, and Manager Jerry
Wheelis subsequently learned of the meeting from
Ed Scoby an employee who had attended, and, on
Saturday morning, April 19, Wheelis informed
'Respondent ' s additional "evidence" filed with its brief, and its later
supplemental statement with attached affidavits are rejected , inter alia, as
untimely presented , and as not presenting new and previously unavailable
evidence
Assistant Manager Dennis Meyer that a meeting
had been held. As more fully described in the Trial
Examiner's Decision, the work of the Charging
Parties before the opening of business and during
business, and their taking an unauthorized break
during which Beckham and McGary took food
without paying in advance, as required by
Respondent, caused dissatisfaction on the part of
Wheelis and Meyer 2
One of the restaurant's owner's, Harold Leverson,
was at the store around noon and was informed of
difficulties with the crew by Meyer who asked him
to talk with Beckham, Stafford, and McGary.
Later, while at home, Leverson was told by his
partner Bohling there was "some kind of
organization" at the store, and Leverson returned at
noon where this information was confirmed by
Wheelis, who also spoke of working problems with
the Charging Parties. Leverson then met with the
Charging Parties and excitedly interrogated them
about their organization.' Leverson soon calmed
down and at the initiation of the Charging Parties
the conversation turned to a discussion of
grievances, with Leverson agreeing to clarify the
chain of command and instructing Wheelis to have
crew meetings. However, after the conference broke
up, Wheelis and Meyer, who were upset that the
meeting had become a grievance session and not a
disciplinary one, approached Leverson outside the
store. Meyer told Leverson he could not operate the
store with the Charging Parties, pointed out he had
taken Beckham and Stafford off the opening crew
several weeks previously, and, in response to
Leverson's request for details, described the events
of the day. Wheelis also related why he was
displeased with the work performance of the
Charging Parties for some period of time and with
Meyer recommended their discharge. Leverson, went
home, contemplated the situation, and on returning
to the store discharged the employees, telling
Beckham and Stafford, inter alia, "I am going to go
by my first intuition and let you go."4
We conclude, from our examination of the events
leading up to the discharges, that the organizational
activities of the Charging Parties was not the reason
for the discharges, and, accordingly, the discharges
did not violate Section 8(a)(1) of the Act. When
Leverson first met with the Charging Parties on
April 19, he was concerned with the reports of the
organizational activities and with the other problems
reported by Wheelis. If it was his intention to
discharge for the organizational activities, this
'Beckham in particular was a source of problems as he ruined half a
crate of lettuce by washing it under steaming water, and by his subsequent
dilatory manner in the preparation of french fries The objections to the
conduct of MeGary and Stafford were less specific in nature
'This interrogation was the basis of the Section 8 (a)(l) violation finding
by the Trial Examiner , which we affirm
'Beckham and McGary were individually summoned to meet Leverson
McGary, who had left for the day, was not seen by Le%erson, but in the
circumstances , as detailed by the Trial Examiner , we agree with the Trial
Examiner that all three were discharged and were not quits
181 NLRB No. 158
MCDONALD'S CARRY-OUT RESTAURANT
meeting which he began in a most agitated manner,
is the most likely time for firing for these particular
activities. In fact, however, he calmed down and in
an amicable manner dealt with the employees
grievances. There was no evidence, express or
implied, that by the end of the meeting, he harbored
any further desire to discharge the three men. It was
only after this initial meeting, when his supervisory
employees, Wheelis and Meyer, confronted him with
their stated inability to operate effectively with these
employees, specified the reasons for their displeasure
with the work performance of the employees, and
for the first time recommended discharge, that
Leverson actually instituted discharges of the
employees. Thus, it is apparent that at the actual
time he fired the employees, Leverson was
confronted with a different situation than when he
first learned of their organizational activities, for
now he was faced with a question of whether he
would support his supervisors' iecommendations
based on their reports of the employees' work
performance. The alternative, on the basis of the
information available to him, was to risk
disintegration of his restaurant operation for the
supervisors had clearly indicated their inability to
work with the Charging Parties Under these
circumstances Leverson had little choice and it is
evident that in discharging the three men he was
motivated by a desire to support his supervisors and
eliminate the working problems which had been
reported by them. Accordingly, we conclude that the
burden of proving that the discharges were made
because of the concerted activities of the Charging
Parties, has not been sustained, and those
allegations in the complaint should be dismissed.
ORDER
Pursue nt to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that Respondents
Harold Leverson and John Bohling d/b/a
McDonald's Carry-Out Restaurant, Austin and
Killeen, Texas, their agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified.
1. Delete paragraph 1(a) and reletter paragraph
1(b) as paragraph 1(a).
2. Reletter paragraph 1(c) as paragraph 1(b) and
add the words "like or related" between the words
"any" and "manner "
3. Delete paragraphs 2(a), 2(b), and 2(c), and
reletter paragraphs 2(d) and 2(e) as paragraphs 2(a)
and 2(b), respectively.
4. Delete the last three paragraphs of the notice.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
1013
BENJAMIN K BLACKBURN, Trial Examiner: I heard
these cases, pursuant to due notice, in Austin, Texas, on
July 15 and 16, 1969' They began on May 23 when Larry
Stafford, Gary Beckham, and James McGary, referred to
collectively herein as the Charging Parties, each filed an
unfair labor practice charge against Harold Leverson and
John Bohling d/b/a McDonald's Carry-Out Restaurant,
referred to herein as Respondent On June 20 the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 23 (Houston, Texas), issued
a consolidated complaint in which he alleged that the
Charging Parties had been discharged on April .19 in
violation of Section 8(a)(I) of the Act. The consolidated
complaint also alleged that Respondent had violated
Section 8(a)(1) in three other instances Respondent's
answer, duly filed, admitted certain allegations of the
complaint, including the allegation that the Charging
Parties had been discharged on April 19, and denied
others, including certain statistics on which the General
Counsel based his claim that Respondent is subject to the
Board's jurisdiction The answer denied that Respondent
had committed any unfair labor practices
All parties appeared at the hearing and were given full
opportunity to participate, to adduce relevant evidence, to
examine and cross-examine witnesses, to argue orally, and
to file briefs At the outset the General Counsel moved to
strike an allegation from the consolidated complaint that
Respondent had threatened an employee with discharge on
February 5 On the General Counsel's explanation that
further investigation had revealed the incident relied on in
framing the complaint actually took place more than 6
months prior to May 23, 1 granted the motion.
Respondent stipulated that the statistics denied in the
answer were, in fact, correct and that Respondent is
engaged in commerce within the meaning of the Act I
granted his motion to amend his answer in that respect as
well as to deny that the Charging Parties were, in fact,
discharged by Respondent on April 19. The effect of the
latter was to place in issue, with the General Counsel's
concurrence, whether the Charging Parties quit or were
discharged
I denied Respondent's motion that the General Counsel
be required to turn over all affidavits in his possession at
the outset of the hearing on the ground that the Freedom
of Information Act, relied on by Respondent, was
inapplicable to this proceeding 2 Respondent moved that
the three cases be severed. On the General Counsel's
assurance that all three cases were based on the same
facts, especially activities engaged in by the Charging
Parties in concert with each other, I denied Respondent's
motion I also denied Respondent's motion that, as each
of the Charging Parties was testifying, the other two be
sequestered on the ground that each is a party to this
proceeding and thus entitled to be present throughout the
hearing Finally, Respondent objected to proceeding
further with these cases on the ground that the General
Counsel had failed to follow the Board's Rules and
Regulations in the prehearing phase. I overruled this
objection.
All dates are 1969, unless otherwise specified
'Respondent requested and received from the General Counsel the
affidavits of each of the General Counsel's witnesses at the end of the
General Counsel's direct examination and before Respondent's
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, including briefs filed by the
General Counsel and Respondent, and from my
observation of the demeanor of the witnesses while
testifying under oath, I make the followm&:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a partnership engaged in the operation of
five carryout restaurants, four of them in Austin, Texas,
and the other in Killeen. In the 12 months dust prior to
the issuance of complaint herein, its gross volume of
business exceeded $500,000 and the value of goods
delivered to its places of business in Texas directly from
outside the State of Texas exceeded $50,000 On the basis
of these admitted facts, Respondent concedes that it is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act I so find
II. THE UNFAIR LABOR PRACTICES
A Facts
I Credibility
The General Counsel presented his case in chief
through the testimony of the Charging Parties only
McGary was 20 years old at the time of the hearing,
Beckham nearly 20, and Stafford 18. All are high school
graduates and in the early stages of their college careers.
Their testimony is disputed in many details, some
important, some unimportant, by Respondent's witnesses.
I conclude that all witnesses were attempting to tell me
the precise truth within their capacities to recall and relate
what had happened to them However, I also conclude
that the Charging Parties were slightly carried away by
their zeal for their cases Consequently, I have credited
their testimony only where it is corroborated by the
testimony of another witness. It does not follow from this
method of resolving the credibility conflicts presented by
the record that I have discredited the Charging Parties
generally or even in any major degree There is no real
dispute about what happened The conflicts relate, for
example, only to such precise details as exactly what
words were used by parties to conversations or how hot
was the water into which Beckham chopped some lettuce
on the last day he worked for Respondent. Consequently,
many of my findings of fact are based on the testimony of
the Charging Parties The more important results of my
resolving credibility in this manner are as follows:
1. The two allegations of 8(a)(1) violations other than
the discharges of the Charging Parties which remain in the
complaint grow out of words spoken by owner Harold
Leverson to the Charging Parties on the afternoon of
April 19. Stafford, Beckham, and McGary all testified
that Leverson said, in substance, "What's this about an
orgamzatiodi" and, a little later on, "I'll fire anybody
who joins a union " The General Counsel has pleaded the
former as an illegal interrogation, the latter as an illegal
threat Leverson, corroborated by other persons who were
present at the meeting, admits the first but denies the
second Therefore, in the narrative of the facts which
follows, I have found that Leverson spoke the first but not
the second
2 The major thrust of Respondent's defense is that
Stafford, Beckham, and McGary were discharged' not
because they attempted to form an organization in order
to deal with management over employees' grievances but
because they engaged in unprotected concerted activities in
order to sabotage Respondent's business. Much of the
testimony in the :ecord relates to Stafford's, Beckham's,
and McGary's work performance, especially on April 19.
Here, once again, there is very little real dispute in the
record For example, Beckham admits that he chopped
approximately half a crate of lettuce, some 10 to 15
heads, into water that was not cold. He said it was warm.
Respondent's witnesses said it was so hot that steam was
rising from it. I find below that the water was steaming
hot. In the same manner, for the same reason that the
testimony of the Charging Parties is not corroborated, I
have based my findings on this and other disputed details
on the testimony of Respondent's witnesses. Many of the
facts which Respondent relies on to prove its unprotected,
concerted activities defense are not disputed by the
Charging Parties. An example in this area is my finding
that Beckham, on April 19, told employees who were
waiting for french fried potatoes to get them themselves.
3. An integral part of Respondent's defense is that the
Charging Parties were not engaged in concerted activities
relating to terms and conditions of employment when they
met with eight other young employees on April 7 and
formed an "organization " To that end it cross-examined
the Charging Parties closely about what happened at the
meeting, eliciting such details as the drinking of a glass of
beer and the uses to which the organization's "dues" were
to be put. It also called as its own witnesses one employee
who was invited to the meeting but did not attend and one
who did. The testimony of these two witnesses, especially
the latter's testimony that dissatisfaction with the change
in payday at Respondent's Capital Plaza store was
discussed at the meeting, corroborates the Charging
Parties Therefore, I have relied on their testimony for my
findings on their reason for calling the April 7 meeting
and what went on there
4. Respondent does not dispute that it had knowledge
of the April meeting at the time Leverson talked to the
Charging Parties on the afternoon of April 19, Assistant
Night Manager John Moreland's and Manager Jerry
Wheelis' conversations with employee Ed Scoby, and
owner John Bohling's and Wheelis' conversations with
Leverson, all on the subject of the "organization" and all
set forth in detail below, being admitted. However, the
General Counsel offered as additional evidence the
testimony of Gary Beckham that he and McGary were
washing windows at the Capital Plaza store about a week
after April 7 when Manager Wheelis came by and told
them their organization would not work Wheelis recalled
the day Beckham and McGary were washing windows and
admitted that he probably said something to them because
he thought they were laughing at him. However, he denied
categorically that he spoke the words attributed to him by
Beckham. Since Beckham's testimony as to this point is
not corroborated, I have not accepted it. Since the whole
incident has no significance other than to show Wheelis'
knowledge of the April 7 meeting earlier than April 18,
the date on which he admits Scoby told him about it, I
have not included it in my recital of the facts below
5 When Respondent changed its method of paying its
employees from a day or two after the end of a pay
cross-examination , as provided in Section 102 118 of the Board ' s Rules
and Regulations , Series 8, as amended
'Respondent does not concede that they were discharged See section B,
I, below
MCDONALD'S CARRY-OUT RESTAURANT 1015
period to 7 days is a running battle throughout the record
I find below that the change took place at the Capital
Plaza store around April 1, relying on the testimony of
the Charging Parties as corroborated by Dennis Meyer,
an assistant manager who testified for Respondent. I have
rejected the testimony of Manager Wheelis that the
change was instituted March 1 I am convinced that
Wheelis is confusing the Capital Plaza store with the
Guadalupe store where a rebuttal witness called by the
General Counsel, Lewey Beckham, confirmed an earlier
date Moreover, it is inherently more credible, as I find
below, that the April 7 organization meeting would have
been incited by a change which took place at the end of
the March 16-31 pay period than one which took place a
month before.
2. Introduction
Respondent operates five McDonald's restaurants, four
of them in Austin and the other in Killeen, Texas Three
of them, including the Capital Plaza store, the scene of
this drama, and the store in Killeen, are directly
supervised by partner Harold Leverson Partner John
Bohling runs the other two. Capital Plaza, their initial
venture, opened in September 1962. The last three,
starting with Killeen, have all been opened since October
1968 The fifth and last, referred to as Guadalupe, opened
on February 4
A McDonald's restaurant is a franchise operation. It
offers a limited menu built around such items as
hamburgers, french fries, and milkshakes to be carried out
rather than consumed on the premises. It is a low price,
high volume operation In order to operate profitably it
must take care of a large number of customers with a
minimum of delay Consequently, it is staffed at rush
hours by a large number of employees who must function
as a highly integrated team in preparing food and drinks
and waiting on customers. At other times fewer employees
are needed to handle the business with the dispatch
required by the economics of the operation. As a result,
many of the employees are students who work part time
Lewey Beckham, Gary Beckham's older brother,
worked for Respondent from May 1966 until April 12,
when he quit At the time he quit he was assistant
manager of the Guadalupe store. Prior to that he had
worked in the Killeen store. Larry Stafford went to work
for Respondent at the Guadalupe store in early February.
He transferred soon thereafter to Capital Plaza As of
April 19 he had no title Gary Beckham went to work for
Respondent in May 1966, James McGary, in April 1967
Beckham worked throughout primarily at the Capital
Plaza store. McGary's history is set forth in more detail
in section C, 1, where the supervisory issue is considered.
As of April 19 both Beckham and McGary were assigned
to Capital Plaza, both had the title crew chief. All three
of the Charging Parties last worked for Respondent on
April 19.
The Capital Plaza store is open from 11 a m until
midnight, with some variation at either end of the day
depending on the day of the week. However, four men
referred to as the opening crew, supervised usually by an
assistant manager, come in several hours early in order to
get set up for the day They perform such chores as
filtering the cooking oil, cleaning the grill, and placing
supplies in the places where they will be needed. Around
April 5 Dennis Meyer, an assistant manager at the
Capital Plaza store, removed Beckham and Stafford from
the opening crew because he was dissatisfied with their
work. McGary continued to be on the opening crew
From the inception of the Capital Plaza store
employees were given their paychecks as soon as possible
after the end of the bimonthly pay period in which the
money was earned Thus Capital Plaza employees were
accustomed to being paid as early as the 1st and the 16th
days of the month As Respondent's business grew,
especially in the period beginning in October 1968 when it
mushroomed, it became increasingly difficult for
Respondent to keep to this schedule. When the Killeen
and Guadalupe stores opened a policy was adopted at
each of paying the employees 7 days after the close of
each pay period This made the 7th and the 22d days of
each month payday Respondent decided to switch to this
system at Capital Plaza, effective April I A notice to that
effect was posted on the bulletin board in the last week of
March April 1 came and went with no pay. Some of the
employees resented Respondent's holding their money for
an extra week. Beckham, McGary, and Stafford decided
to organize the employees. To that end they invited some
of the other Capital Plaza employees to a meeting at 6
p.m on Monday, April 7
3. The meeting of April 7
Stafford and McGary share an apartment with Lewey
Beckham, Gary's brother The meeting was held there.
Eight employees, all teenagers and some of them high
school students, attended in addition to Gary Beckham,
Stafford, and McGary Beckham was in the chair There
was a discussion of various grievances which the
employees had against Respondent, including the recent
change in payday. It was decided to go through the
motions of creating an organization which could represent
all those present in taking up the grievances with
Respondent Beckham wrote his name and the names of
Stafford and McGary at thy top of a chalk board to
indicate their leadership of the group.' Below them he
listed the titles of various officers such as president and
treasurer. After some discussion one of the youths present
was assigned each of the jobs listed and his name was
written on the board The young man who was designated
president, Tommy Hill, was told by Beckham that he
would have no duties as president since Beckham would
act as the leader Beckham informed those present the
dues of the organization would be $I per pay period or $2
per month. Some of those present objected to dues There
was a discussion of what the dues would be used for. A
single beer which happened to be in the refrigerator in the
apartment was poured into a glass and passed around as a
refreshment during the meeting Some drank. Some did
not. The point was made that dues would permit similar
refreshments to be served at future meetings or,
alternatively, at a party which the organization could
throw. Nondrinkers objected to spending dues money for
beer Other suggestions for using dues money were to buy
a radio for the store and to accumulate a fund to aid
employees whom Respondent discharged for joining the
organization. When the meeting broke up after
approximately an hour, a second meeting was scheduled
for the following Monday, April 14. The second meeting
was never held It was first postponed and then, when the
intervening events described below ensued, forgotten about
The record is unclear as to ,lust what title, if any, Beckham, Stafford,
and McGary were to have I gather that they were to be a board of
directors or something of the sort There is no doubt it was the sense of
the group that they were to be the real leaders of and spokesmen for the
group and that the nominal officers were to be mere figureheads
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by all concerned No dues were ever collected. With the
possible exception of the discussion Beckham, Stafford,
and McGary had with Leverson about grievances on the
afternoon of April 19 related below, no person ever
undertook to transact any business of any nature in the
name of this nameless organization. None of the
underaged young men who were present on April 7 ever
took so much as another sip of beer under its aegis
4. Respondent learns of the organization
One of the teenagers who attended the April 7 meeting
was Ed Scoby. On Saturday evening, April 12, John
Moreland, the night assistant manager, drove Scoby home
from work. As they were sitting outside Scoby's house
Scoby told Moreland about the meeting in confidence.
The main part of his message to Moreland was that
money was being collected for the purchase of beer by
teenagers. In addition, he told Moreland that ". . . at the
meeting they had talked about using a slow-down method
and sabotaging some of the operation, and even on, say, a
Saturday noon where a rush hour occurred, peak hour,
even a walk-out."5 Moreland told no one of this
conversation
On Friday evening, April 18, Scoby had a confidential
chat with Manager Jerry Wheelis dust outside the Capital
Plaza store Scoby said, "There is something going on
that I think you should know about. Mr. Stafford, Mr.
McGary and Mr. Beckham are getting together an
organization. I know how they have been acting. I think
they are trying to make it a lot worse " He went on to
give Wheelis the names of some of those who had
attended the meeting, including himself, Hill, and Farley
Hemphill, the other witness called by Respondent to
testify about the Charging Parties' organizational efforts.
He also told Wheelis the meeting had been held at Lewey
Beckham's apartment. Wheelis did not tell anyone about
this conversation until the next day.
5. The events of April 19
On Saturday morning, April 19, Wheelis told Meyer
that the Charging Parties had held a meeting with other
employees to organize because of "dislikes in the store "6
Wheelis told Meyer, "I think we can expect additional
trouble."
McGary reported for work at Capital Plaza as
scheduled that morning He performed his usual chores as
'This is Moreland's paraphrase of what Scoby told him Scoby was not
called as a witness Coming from Moreland , of course, this testimony is at
best hearsay as to what was actually said at the meeting Since Tommy
Hill, a witness called by Respondent to establish what did happen , gave no
such testimony , I have not included a finding that sabotage of
Respondent 's operations was discussed at the meeting in the section just
above and I expressly decline to make such a finding here Hill did testify
that prior to the meeting, " I had known [it] was something to do with
slowing down in McDonald 's, I mean, slowing down the production or
something " However, a subsequent question brought out the fact that Hill
was never told this by anyone and simply assumed it " ever since they
said they were going to have an organization " I consider this an
additional ground for concluding that the Charging Parties did not plot or
engage in concerted sabotage
'Meyer's phrase Meyer also testified that Wheelis referred to the group
as a "labor organization " Wheelis admitted telling Meyer it was an
"organization " but denied he said "labor organization " I credit Wheelis
over Meyer on this insignificant point I am convinced that the technical
term "labor organization ," about which more at the beginning of section
B, below , only got interjected into these cases when lawyers took over and
was never used by the unsophisticated participants during the period under
consideration
part of the opening crew until the store opened at 10.30
a.m Then he went on the grill where he prepared
hamburgers, assisted by a crew of four other employees.
Except for the other events which he participated in that
day as related here, he grilled hamburgers for the balance
of his workday Stafford reported for work as scheduled
at l l a m. He was assigned to the grill where he toasted
buns the entire day, with the exceptions noted Beckham
was also scheduled to report around the time the store
opened However, he showed up early and asked Wheelis
if he could start immeaiately. Wheelis sent him to Meyer
with the message that Meyer could put him to work if
Meyer could use him Consequently, Beckham actually
began work around 9.30 a.m.
Meyer assigned Beckham to the chore of chopping
lettuce for use in a McDonald's specialty called The Big
Mac. The Big Mac had only been on the menu a short
time. Therefore, chopping of lettuce had only been done at
the Capital Plaza store for a few months. Lettuce is
properly chopped into cold water, even iced water, in
order to preserve its crispness. Beckham had never been
told this. He had, however, chopped lettuce on several
occasions prior to April 19, apparently without ever being
criticized On this day Beckham went to the sink, turned
the faucets, and started chopping.
When Beckham had chopped approximately half a
crate of lettuce, some 10 to 15 heads, Wheelis came by
and noticed steam coming from the water. He went to
Meyer in high dudgeon and ordered Meyer to take
Beckham off the job because he was ruining the lettuce.
Meyer moved Beckham to another job and finished
chopping the lettuce himself Beckham said that no one
had ever told him that the lettuce had to be chopped into
cold water Meyer threw away the lettuce which Beckham
had chopped
The peak of the rush hour on Saturday at the Capital
Plaza store is from noon until i p.m The crowd begins to
build around 11 30 a.m and does not disappear until
around 2 p m. Consequently, employees who do not take
their break and fortify themselves with something to eat
before 11:30 a.m have to wait until after 2 p.m. to do so.
Respondent's rule is that breaks can only be taken with
the permission of the manager or an assistant manager
Respondent requires its employees to pay for any of its
food which they consume while on duty. The rule in this
regard is that an employee must prepare a ticket, give it
to a manager with his money, and in turn receive his
purchase from the manager after the manager has rung up
the transaction on the cash register Both rules have been
broken in the past without the culprit being discharged
The record does not reveal how seriously Respondent
enforces either rule, other than very general testimony
that employees, including the Charging Parties, have been
"reprimanded."' There is no evidence that any specific
employee, in the recent past, has been discharged for
breaking either rule. Several years ago Respondent
subjected its employees to polygraph tests because their
not paying for food they consumed and passing food
through the window to their friends for free had become a
major problem. Beckham took the test. Apparently it
revealed only that he had eaten food without paying for it.
He was not discharged at that time.
'It does, however , contain this revealing bit of testimony by Meyer on
the situation in the store with respect , at least , to the food buying rule
Q Had the Charging Parties given you a requisition for food"
A No, sir
Q Would they normally do so"
A. If you watched them like a hawk
MCDONALD'S CARRY-OUT RESTAURANT
Shortly before 11:30 a.m Beckham, Stafford, and
McGary took an unauthorized break They went together
to the storeroom in the rear of the store Beckham and,
apparently,' McGary had a hamburger and beverage with
them for which they had not paid in advance Meyer
caught them in the storeroom. He reprimanded them and
sent them back to work Beckham and McGary paid for
the food they had taken. Somewhat later Wheelis sent
McGary back to the storeroom to clean up the papers and
cups from their snack McGary stuffed the trash into a
container of potatoes. Still later Wheelis let McGary
know that he knew how McGary had cleaned up by
retrieving the trash and wordlessly displaying it to
McGary as McGary was working at the grill
From the time the store opened Beckham's assignment
was to prepare and bag french fries. The point of the
french fries job, in Respondent's team operation, is to
keep enough french fries cooked and in bags so that when
the employees who are waiting on customers come to pick
them up they can get them without delay On this day
Beckham was slow On several occasions he remarked to
other employees that they could bag french fries
themselves if they did not want to wait for him to do it
Several times Bienvenido Reyes, a designated crew chief
on April 19,' urged him to work faster. Beckham retorted,
"Where has it gotten you? You are working harder and
where has it gotten you?" Reyes told Wheelis that
Beckham was not keeping up with the demand for
potatoes Meyer finally sent another man to help
Beckham. Beckham continued to cook the french fries
while the other man bagged them. Sometime during the
day Wheelis asked the grill crew, including McGary,
Stafford, and three other men, to try to speed up their
production. During the day the Charging Parties were
observed by Wheelis and Meyer whispering to employees
to whom Wheelis or Meyer had just finished speaking.
They could not hear what was said.
Owner Leverson first appeared at the Capital Plaza
store around noon on April 19. He went there for a
conference with his partner, Bohling, and an advertising
man While Leverson was in the store he was told by
Meyer that Meyer was having a rough time with the crew
Meyer mentioned the lettuce episode without going into
details and asked Leverson to talk to Beckham, Stafford,
and McGary When the advertising conference broke up,
sometime before 2 p.m, Leverson went home. A few
minutes later Bohling appeared at Leverson's house He
said, "Harold, do you know that you have got some kind
of an organization at your unit?"
Leverson said, "No. What are you talking about?"
Bohling said, "I just heard. I didn't know if you were
aware of it or not, but, so many times things, I hear
them and you don't."
Leverson said, "Well, we were just down there."
Bohling said, "I know it. .. I was quite surprised,
we didn't hear anything about it."
'The record is very hazy on this point Beckham admitted that he had
food for which he had not paid in advance , although he also testified that
he had his ticket and money ready so that he could pay at the end of the
break The implication of his testimony is that only he had broken the
rule Meyer said all three were eating in the storeroom when he caught
them but he was not sure whether Stafford and McGary had paid in
advance Wheelis was certain that Stafford had nothing to eat and equally
firm that both Beckham and McGary had broken the rule Stafford
testified that he never deviated from the rule on food buying McGary was
not asked specifically about this point
'See section C, 1, below
1017
Leverson said, "Well, John, I don't know. I can't
believe that there is anything to it but, come to think of it
now " and he proceeded to tell Bohling what Meyer
had told him earlier. Leverson concluded, "Well, if you
want to go with me, let's go down there and see what it's
about "
Leverson and Bohling returned to the Capital Plaza
store around 2 p m. When they got there, Bohling told
Leverson that, since Capital Plaza was his store, the
problem was his also. Bohling left Leverson went in
The first person he spoke to was Wheelis. He said,
"Jerry, have you heard, what is this about an
organization"
Wheelis said, "Oh, yeah, yeah, I meant to tell you
about this. I had heard something about it and had meant
to tell you while you were here, but you got away."
Wheelis then told Leverson what he had learned from
Scoby the evening before, winding up with the observation
that he had been having problems with the Charging
Parties, mentioning specifically only the lettuce episode
that morning plus "the general attitude of the crew, they'
just couldn't get any work done "'
Leverson told Wheelis he would talk to Beckham,
Stafford, and McGary. Present at the conversation in the
storeroom which followed immediately were Leverson,
Wheelis, and all three of the Charging Parties Meyer
came into the room at some point after the shouting had
ended and while grievances were being discussed. The
conference went as follows.
As the Charging Parties entered the room, Leverson
shouted at them, "What is this about an organization9"
Leverson was excited and angry and was waving his arms
around
Beckham replied, "Hal, there is nothing to it."
Leverson said, "Gary I know your brother is the leader
of this I know your brother is behind this
Beckham said, "No, he isn't "
Leverson said, "Your brother has been giving me the
shaft ever since he left Killeen I know he is behind this.
Now who is going to be man enough to stand up and tell
me what this is all about9"
McGary said, "Well, we have been talking with some
of the boys We have come up with what we have felt was
some ideas that would help your operation."
Leverson said, "Such as what" If there is anything I
would be happy to hear about them." At this point
Leverson had cooled down enough that a reasonable
discussion of the Charging Parties' grievances was
possible Such a discussion took place
Beckham said that one of the problems was too many
bosses in the store He pointed out that an employee could
be told to do one thing by one person, start to do it, and
then be told to drop it and do something else by someone
else. Leverson agreed that the employees should have only
one boss at a time. There was some dialogue about just
who were the bosses in the store and just how the
operation should run Leverson said he would get the
chain of command clarified Stafford said he thought
there was some discrimination shown in the scheduling of
work. He cited an occasion when he had been unable to
get time off even though his parents had come 600 miles
from El Paso to visit him in Austin while Hemphill,
Meyer's brother-in-law, had gotten a day off when he
asked for it Leverson agreed that Stafford should have
been permitted to take the day off At one point, Meyer
asked what about the fact that Beckham had ruined the
lettuce that morning. Beckham said he had chopped the
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lettuce into hot water because he did not know any better
and told Leverson he was sorry Leverson made no
particular point about the ruined lettuce Finally, one of
the Charging Parties suggested it would be a good idea to
have crew meetings occasionally at which all the
employees could discuss their grievances with
management. Leverson turned to Wheelis and said,
"Jerry, I have been after you for the last six weeks to
start to initiate these crew meetings. This has been on my
agenda I have asked this be done in all stores, and
particularly in this one Now, why haven't you had
them"
Wheelis said, "Hal, I am just sorry, I haven't done it.
It's my fault "
Leverson said, "All right, let's get on with it and let's
get some crew meetings going " On that note, sometime
after 2.30 p m., the conference broke up The Charging
Parties returned to their work stations
Wheelis and Meyer were perturbed that what they
thought was going to be a disciplinary session had turned
into a grievance meeting Consequently, they talked to
Leverson outside the store as he was leaving the building.
Meyer told Leverson that he could not run the store with
the Charging Parties in it. He pointed out that he had
taken Beckham and Stafford off the opening crew a
couple of weeks before. Leverson asked for details Meyer
related the story of the day He went into the lettuce
episode again. He mentioned the unauthorized break and
the food which had not been paid for according to the
rule. He criticized the Charging Parties' general attitude
in the store, especially the whispered comments to other
employees. Wheelis told Leverson that his assistants had
told him in the past that they were dissatisfied with the
Charging Parties. He, too, mentioned the lettuce and the
whispering, especially by Stafford. He told Leverson that
McGary, over a period of several weeks, had been
answering back, when Wheelis spoke to him, with such
remarks as "You better enjoy telling me this now because
you won't be able to do it for long " He told Leverson
that, on numerous occasions, Beckham had let the store
run out of french fries Both Wheelis and Meyer
recommended, for the first time, that the Charging Parties
be discharged. Leverson said he wanted to go home and
think it over
Leverson went home and thought it over He decided to
get rid of the Charging Parties A few minutes after 3
p m he returned to the store He first saw Beckham.
Beckham was taking an authorized break. Leverson,
angry again, took him into the storeroom. Leverson said,
"Gary, I have had some additional bad reports about you
I hear that you intentionally let me run out of french fries
today " Beckham denied it Leverson said, "I am going to
go along with my first intuition and let you go. You can
go ahead and work the rest of the day and that is it I am
going to start right here and get some of this dissension
cleared out of my organization Get Larry Stafford "
Beckham left the storeroom and sent Stafford in.
Leverson, still angry, said, "I am going to go by my first
intuition and let you go I have got to get some of this
dissension out of my organization " Stafford agreed that,
if there was dissension, Leverson should get it out.
Leverson told Stafford he would give him two weeks in
which to find another job, at the end of which time he was
through. Leverson told Stafford to get McGary Stafford
told Leverson that McGary's shift had ended at 3 p m
and he had already left the store
When Stafford emerged from the storeroom, Beckham
went back in He asked Leverson to say that he had quit
rather than been fired so that he could get another job
Leverson agreed to do so Stafford returned to the
storeroom while Beckham was there Together they left
Leverson's presence for the last time sometime around 4
p m Leverson was under the impression that each would
work until 5 p m., thus completing his shift. Neither did
They left the store together a few minutes after they left
Leverson without letting him know they were departing an
hour early and, in Stafford's case, without informing
anyone that he would not report for work the next day as
scheduled. Stafford telephoned McGary He told McGary
that he and Beckham had been fired and that Leverson
was looking for McGary to fire him too.
Meanwhile, back at the store, Meyer had also left when
his shift ended at 3 p.m Leverson told Wheelis what he
had done with respect to Beckham and Stafford. He
cautioned Wheelis to say Beckham had quit if anyone
asked. He told Wheelis he would see McGary the next
day. Wheelis called Meyer at home and told him he was
going to be two men short, namely, Beckham and
Stafford, the next day Meyer returned to the store and
made the necessary schedule arrangements to plug the
gap. He told Moreland, the night assistant manager, who
had come to work by that time, that Beckham and
Stafford had been fired Meyer then went home again.
Wheelis also told Moreland that Beckham and Stafford
had been discharged. Later in the evening McGary
telephoned Moreland at the store. He told Moreland that
he would not be in on Sunday and that he would come in
later to turn in his McDonald's shirts and pick up his
paycheck Moreland called both Leverson and Wheelis to
report McGary's call. At Wheelis' instruction he called
Meyer in order to work out something to cover the
additional gap left in the Sunday crew by McGary's
absence Meyer solved the problem next morning by going
in early himself and doing the work McGary would have
done There were no further efforts by Respondent to
contact McGary McGary did not say to Moreland in
their telephone conversation on April 19 that he was
quitting Conversely, Moreland did not tell McGary that
he was tired.
B Analysis and Conclusions
The General Counsel's theory is that Respondent
discharged Gary Beckham, Larry Stafford, and James
McGary because they engaged in the protected, concerted
activity of organizing and conducting the April 7 meeting
He does not contend that any organization came into
existence as a result of that meeting There is no
allegation in the complaint that any labor organization, as
such, is involved herein or that Respondent violated
Section 8(a)(3) of the Act because it discharged Beckham,
Stafford, and McGary in order to discourage membership
in that or any other labor organization Counsel for
Respondent, nonetheless, directed much of his attention at
the hearing to the April 7 meeting and the fact that the
organization, if any, which resulted was not a labor
organization For a time I feared that he had missed the
point of the General Counsel's case and was attempting to
defend against a charge which had not been leveled
against his client As the hearing progressed, however, I
realized that the point he was striving to make was more
subtle than I first thought. That phase of his defense is
considered in subsection 2 below The
organization-versus-labor organization theme runs through
MCDONALD'S CARRY-OUT RESTAURANT 1019
this record, however, to a degree where others may see as
an issue the question of whether the Charging Parties did,
in fact , form a labor organization . In my opinion, that
issue was not fully litigated at the hearing Moreover, its
resolution is not required to resolve the issues posed by
the pleadings Therefore, I neither express nor mean to
imply any opinion on that point I turn first to another
defense raised by Respondent which is preliminary to the
basic protected, concerted activities issues.
1. Quit versus discharge
Respondent contends that the Charging Parties were
not discharged but quit In McGary's case, the strongest
from its point of view, it relies on the fact that no official
or supervisor of Respondent ever told him that he was
fired In Stafford's case, it relies on the fact that he did
not work the 2 weeks which Leverson gave him in which
to find another job In Beckham 's case it relies on the fact
that Beckham asked Leverson to tell any inquirers he quit
rather than was fired. In both Stafford's and Beckham's
cases, it relies on the additional fact that both left an hour
before the end of their regularly scheduled shift even
though Leverson told both to finish out the day
The arguments with respect to Stafford and Beckham
are specious In both cases, their status was determined at
the moment Leverson told them they were discharged.
The fact that Stafford did not choose to avail himself of
the grace period Leverson gave him does not alter the fact
that Leverson told Stafford he had decided to fire him
The fact that Leverson agreed, at Beckham's request and
to serve Beckham's purposes, to let the manner of
Beckham's passing go down in the records as a quit rather
than a discharge cannot alter the fact that Leverson told
Beckham he was through as of the end of the day Neither
can these facts be altered by the fact that Leverson
postponed the effective moment of his actions l hour in
Beckham's case, 2 weeks and 1 hour in Stafford's. The
decision he communicated to each was final and
unequivocal To find that what happened thereafter
converted Leverson's final and unequivocal act into
something other than discharges would be to find that an
employer can escape the consequences of a decision which
is his alone by attaching a condition the affected
employees do not accept Discharge is, by its nature, an
unconditional act Leverson spoke unconditionally to both
Stafford and Beckham when he told them they were
through Without some act thereafter by Leverson or
some other responsible official of Respondent to cancel
the decision Leverson had communicated to Stafford and
Beckham, that decision stood Stafford and Beckham
could not undo what Leverson had done. There was no
such act
In McGary's case Leverson emphasized the fact that he
never told anyone what he intended to do Words,
however, are not the only manner in which one man
communicates with another. Leverson admitted, when he
testified he returned home to deliberate and there decided
to follow the recommendations of Wheelis and Meyer,
that he decided to discharge McGary as well as Stafford
and Beckham. The fact that he told Stafford to send
McGary to him in the same way that he had told
Beckham to send Stafford to him establishes that he
would have communicated his final and unequivocal
decision to McGary dust as he had communicated it to
Stafford and Beckham McGary was correctly informed
when he was told by Stafford on the telephone that
Leverson was looking for him to fire him At that point
there was no necessity for McGary to undergo the
formality of a confrontation with Leverson to protect his
rights. I find, therefore, that neither McGary, Stafford,
nor Beckham quit Respondent's employ on April 19
Stafford and Beckham were discharged McGary was
constructively discharged
2 Concerted activities
Respondent contends the meeting of April 7 was not a
concerted activity within the meaning of the Act,
therefore, even if the Charging Parties were discharged for
organizing and participating in it , there is no violation of
Section 8(a)(1). To that end Respondent made various
points about the meeting such as the fact that the
Charging Parties gave beer to teenagers, that the part beer
would play in future meetings was a major subject in the
deliberations of those present, that to have spent their
dues money on beer would have violated Texas law since
all those present were underage, that the formality of
setting up an organization as such, as evidenced by the
manner in which officers were selected and dues decided
on, was a sham, and that the uses to which the dues were
proposed to be put smacked more of a chowder and
marching society than an organization seriously dedicated
to advancing the interests of its members as employees If
these were all the facts about the April 7 meeting in the
record I might well agree with Respondent that it was
totally unrelated to the employment of those present by
Respondent or any other employer. But, as I have already
pointed out in section A, 2, above, the fact that the
Charging Parties called the meeting because of grievances
against Respondent and the fact that such grievances were
discussed are uncontroverted Moreover, Respondent knew
from the outset that organization of employees because of
their grievances was the purpose and the result of the
meeting. In testifying about his conversation with Wheelis
on the morning of April 19, Meyer testified, "Nothing
was done [by Wheelis and Meyer] We had nothing to go
on. We just knew that they had a meeting, about dislikes
in the store." In testifying about the state of his
knowledge, Wheelis revealed that he knew other
employees had joined with Beckham, Stafford, and
McGary when he testified-
Q. What kind of organization did you consider to be
involved9
A Considering the gentlemen that were involved, I
assumed it was an organization to further whatever
they were doing, this slow-down, this deliberate
sabotage, whatever it was they were doing, I assumed it
was to further that because -
TRIAL EXAMINER- What gentlemen were you
referring to by that expression, Mr Wheelis?
THE WITNESS: Mr. Stafford, Mr Beckham and
Mr McGary
Q (By Mr McClellan) Were there any others
involved, to your knowledge9
A Yes, sir
Whether or not the Charging Parties succeeded in
forming any kind of an organization, much less a labor
organization, on April 7 is irrelevant to the question of
whether their activities to that end were concerted within
the meaning of the Act. Also, the fact that what
transpired at the April 7 meeting may have had some of
the farcical quality of a gathering of children to form a
secret club is immaterial The April 7 meeting grew out of
and was concerned with the grievances of Respondent's
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees Therefore, I find that, when the Charging
Parties organized and conducted it, they were engaged in
concerted activities for the purpose of mutual aid and
protection within the meaning of the Act
3 The motive for the discharges
In the final analysis, these cases come down to the
question of whether Beckham, Stafford, and McGary were
discharged because of the April 7 meeting or for cause If
for cause, it must be found in the work of the Charging
Parties between April 5, the earliest there is any indication
of contemporary" dissatisfaction with their work, and
April 19. Respondent's main defense is that Beckham,
Stafford, and McGary were discharged because they were
concertedly engaged in the unprotected activity of
sabotaging Respondent's business. Were they? becomes,
therefore, the first question which must be answered.
The portion of Wheelis' testimony quoted dust above
indicates the thrust of Respondent's defense In fact, the
question and answer which followed next round it out.
They were:
Q. Were they [i e , employees other than the
Charging Parties] engaging in this same kind of activity
[i.e., deliberate sabotage]?
A No, sir.
In other words, other employees participated in the
meeting and were not fired. Only the Charging Parties
were because only they were involved in the sabotage plot
Therefore, Respondent was motivated not by the meeting
but by the plot - QED.
This from Wheelis' is but a sample of the testimony
proffered by Respondent in support of this theory.
Wheelis, Meyer, and Moreland, the three supervisors who
were in a position to observe the work of the Charging
Parties on a day-to-day basis, all testified, in substance,
that their troubles with the crew or with production came
only when Beckham, Stafford, and McGary were on duty
together and not at other times. I attach no significance to
any of these broad, general statements. At the points
where they appear in the record they are unsupported by
details about just exactly what the Charging Parties were
doing on such occasions. When the witnesses are
questioned about specific failings of the Charging Parties,
the details prove to relate to the activity of one or the
other, not to all three acting in concert in any way I
return to this aspect of Respondent's defense just below
Suffice it to say at this point, once conclusionary,
self-serving statements of the sort that I am here
concerned with are laid outside, there remains no evidence
that the Charging Parties deliberately agreed to act
together in an effort to sabotage Respondent's business by
a slowdown at rush hour or any other method I am
convinced from the record as a whole and from my
observation of the witnesses that the idea of deliberate
sabotage by the Charging Parties acting together is
hindsight and the witnesses, when they made such
statements, were testifying not to observations they made
at the times the events occurred but to conclusions they
reached after Respondent began preparing its defense " I
find, therefore, that the Charging Parties did not enter
into or attempt to implement any plot to sabotage the
"That is, as distinguished from testimony about more remote events
such as the polygraph test Beckham took , events which caused the
Charging Parties to be reprimanded or caused Respondent to be
disappointed in their performances for some reason
Respondent's business in any way.
Rejection of Respondent's unprotected, concerted plot
theory does not, however, dispose of the underlying issue
of protected, concerted activities versus cause. The
question still remains whether Respondent was moved to
discharge any or all of the Charging Parties because of
their poor performance in April and not because of their
role in the April 7 meeting
The most compelling fact in Respondent's favor is the
sequence in which the events of April 19 leading up to the
discharges took place. Leverson was informed, generally,
that his supervisors were unhappy with Beckham,
Stafford, and McGary. He next learned that they had
engaged in protected, concerted activities He reacted
angrily, interrogating them about what they had been up
to. Once he had his emotions under control he was able to
discuss their grievances with them and begin to resolve
them, apparently to the mutual benefit of Respondent and
its employees. Only after the grievance discussion had
come to an amicable close was he informed by his
supervisors in detail of why they were unhappy with the
Charging Parties, so unhappy that they were prepared to
recommend discharges. Only then did Leverson's
justifiable anger cause him to fire the Charging Parties.
This approach overlooks, of course, the whole question of
what, in fact, motivated Wheelis and Meyer to
recommend discharge or the equally relevant question of
what information, if any, Leverson had about the work of
the Charging Parties before he got Wheelis' and Meyer's
recommendations, but it does have some validity.
The most compelling fact in the General Counsel's
favor is that Leverson discharged all three at the end of
the sequence just detailed, for the most glaring feature of
these cases is that Beckham, Stafford, and McGary were
together responsible for the April 7 meeting, were linked
together in the reports of that meeting coming to
Respondent, were confronted together by Leverson when
his anger about their organization sparked the meeting in
the storeroom, and fell together when his renewed anger
culminated in their discharges. If only one or two had
been discharged or if each of the three had been
discharged in some different context after some sequence
'iI do not mean this statement to change in any way my earlier comment
about the veracity of all witnesses I do not think any of Respondent's
witnesses were deliberately trying to mislead me or even aware that they
were substituting hindsight for their original observations and impressions
Meyer is an interesting example of what I have in mind here He testified
that he had to take Beckham and Stafford off the opening crew on the first
Saturday in April because he had become dissatisfied with their work But
McGary remained on the crew If his observations that early in the period
when employees ' grievances were beginning to fester were really of the
Charging Parties acting in concert, he would have at least removed
McGary too More likely , he would have recommended the immediate
discharge of all three, for deliberate, concerted sabotage is a serious
offense I cannot imagine that a supervisor of the caliber I observed in the
Dennis Meyer I saw on the stand would condone it for one moment
Again, in a different area of the case but equally illustrative of the way
Meyer' s and Moreland's minds worked, Meyer testified, in response to a
leading question , that he was advised , when he returned to the store on
April 19 to cope with the schedule for Sunday, that Beckham and Stafford
had quit He was not asked what he told Moreland Moreland was first
asked a similarly leading question and answered it the same way When he
was asked the proper question of what Meyer said to him, Moreland
testified that Meyer told him they had been discharged, then wound up
trying to retrieve the situation from Respondent's point of view, by
rephrasing his answer , "Well, he said that they had been, I guess you
would put it, discharged " It was obvious to me that both of these
performances were prompted by the fact that both men were intelligent
enough to see the quit versus discharge issue developing as they sat in the
hearing room waiting to testify and be affected by it
MCDONALD'S CARRY-OUT RESTAURANT 1021
of events peculiar to that individual, the argument that
they were all discharged for poor work and not because of
Leverson's anger over their organization would be more
persuasive.
Another compelling point about the General Counsel's
case is the fact that the record will not sustain a
conclusion that Beckham, Stafford, or McGary were
equally guilty of bad work. The issue here is not whether
any of them should have been discharged on April 19 but
why they were. I have no doubt that Respondent had
reason sufficient to justify firing Beckham in the lettuce
incident alone, regardless of whether he did it through
ignorance or malice If Beckham and only Beckham had
been discharged for that ostensible reason, I could not
escape the conclusion that the discharge was for cause. I
cannot substitute my judgment for Respondent's in
deciding whether Beckham, Stafford, or McGary was
fired justly or unjustly, fairly or unfairly, if, in fact, such a
nondiscriminatory cause as the lettuce episode was the
motive. But Leverson did not refer to the lettuce episode
when he discharged Beckham. The only "additional bad
report" he cited to Beckham in that moment of stress was
"I hear that you intentionally let me run out of french
fries today " There is no evidence that Beckham, in fact,
intentionally let Respondent run out of french fries on
April 19. The testimony of all the witnesses about what
went on in the store that day is that Beckham, at worst,
was slow in bagging them Nor did Wheelis tell Leverson
that Beckham had let him run out of french fries that day.
What he did tell Leverson was that Beckham had let him
run out of french fries on other occasions 11 I can
understand Leverson misunderstanding what Wheelis had
told him and turning, it into an accusation that Beckham
had let him run out of french fries that very day I cannot
understand his seizing on only that fragment of what
Wheelis and Meyer had told him to justify what he was
about to do to Beckham and not even mentioning the
waste of half a case of lettuce if he were, in fact,
motivated by Beckham's work. Yet there is no evidence in
this record that Leverson became upset at any time about
the lettuce on April 19, even though it was mentioned to
him over and over by Wheelis and Meyer as a cause of
their complaints about Beckham throughout the day
When he discharged Beckham, as when he spoke to
Stafford, Leverson talked instead in terms of his "first
intuition" and getting the "dissension" out of his
organization. "First intuition" is a clear indication that
Leverson's first thought, when he learned of the Charging
Parties' organization, was to discharge them for it. The
linking of that phrase with the reference to dissension in
the discharge interviews is a clear indication that, even
after reflection and second thought, the Charging Parties'
role in forming the organization was the cause of the
dissension and the reason they had to go.
Respondent's case against Beckham on discharge for
cause is by far the strongest of the three. Apart from their
being linked with Beckham, obviously the leader of the
triumvirate, the only facts against McGary and Stafford
are that the five-man grill crew to which they belonged
"Wheelis' testimony on this crucial point is as follows
Q Go ahead What else went on in your conversation , now, with Mr
Meyer and Mr Leverson2
A. I then told him about the lettuce and about several other things
Q Specifically what9
A Well, about Mr Beckham washing potatoes in hot water, about
one time that he, well , about numerous times that he had deliberately let
us run out of french - fries In general , the poor performance of the three
of them
was slow on April 19, that they made unheard comments
to other employees which Wheelis and Meyer took to be
snide remarks critical to them, that they took an
unauthorized break, that McGary had made some
comments in the past to Wheelis which Wheelis did not
like, and that McGary, along with Beckham, violated the
rule about paying for food in advance on April 19 In the
context of these cases, none of these amounts to very
much, whether considered separately or in combination I
have already rejected the idea that the Charging Parties
were deliberately causing a concerted slowdown in the
Capital Plaza store. There is no evidence that
Respondent's business was adversely affected on April 19
by the way in which the crew was performing. More
important in this regard is the fact that Wheelis and
Meyer placed the beginning of this diminution in crew
efficiency around the time Respondent changed payday
and caused all of the resentments employees had about the
way they were being treated to well up into concerted
activity What they were seeing was a drop in efficiency
resulting from the fact that the employees were
disgruntled enough to start thinking in terms of concerted
action. Not only Leverson's motivation is important here
Why Wheelis and Meyer recommended the discharges
when they did is also relevant The information they
received linked the names of Beckham, Stafford, and
McGary together as the instigators of the organization
which caused concern to Respondent on April 19 That, I
think, caused them to link the names of Beckham,
Stafford, and McGary together in voicing their concerns
to Leverson. Otherwise, if their jobs had been made as
difficult prior to April 19 by the work failings of
Beckham, Stafford, and McGary as their testimony would
indicate, Wheelis and Meyer would have taken some
action against them before April 19. At the very least they
would have asked Leverson to discipline the Charging
Parties, as Meyer testified he first did on April 19, even if
they did not go so far as to recommend discharge prior to
April 19
With respect to the break and food rules which were
violated, the record is clear that neither was considered a
very serious offense by Respondent It is admitted by
Respondent that the rules are frequently broken as, for
example, in Meyer's comment about employees paying if
they are watched like a hawk. The Charging Parties,
especially Beckham, admitted past violations and
reprimands There is no evidence anyone was ever
discharged because of these rules. On the contrary, there
is the undisputed fact that Beckham survived a crisis
serious enough to cause Respondent to use a polygraph on
its employees even though he was guilty of violating the
food rule. More importantly, neither rule was referred to
by Leverson in his discharge interviews with Beckham and
Stafford.
Finally, there remains only the attitude of the Charging
Parties, evidenced by words they spoke to Wheelis and
Meyer or words Wheelis and Meyer imagined they were
speaking to other employees about them. To find this to
be the real motivation for the discharges would, once
again, leave unexplained the fact that Wheelis and Meyer
acted only after they learned that Beckham, Stafford, and
McGary together were responsible for the organization.
In summary, then, I rely on the following in finding
that the scales tip in favor of the General Counsel's theory
of the case
1. Beckham, Stafford, and McGary acted together in
organizing and conducting the April 7 meeting. They
were, therefore, the leaders of the protected, concerted
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity which took place among Respondent's employees
2 Beckham's, Stafford's, and McGary's names were
linked together as the leaders in all information which
came to Respondent about the protected, concerted
activity. Therefore, Respondent blamed them for that
activity.
3. Leverson acted precipitately in discharging Beckham,
Stafford, and McGary almost immediately after he
learned of and was angered by their leadership of the
protected, concerted activity his employees were engaged
in
4. The record will not sustain a finding, as urged by
Respondent, that Beckham, Stafford, and McGary plotted
to sabotage Respondent's business.
5 The record will not sustain a finding that the work
records of Beckham, Stafford, and McGary were such
that their discharges at the same time and immediately
after Leverson learned of and was angered by their
leadership of his employees' protected, concerted activity
were for cause only.
6 Leverson's use of "first intuition" and "dissension"
in his discharge interviews with Beckham and Stafford
reveals that he was really motivated by their leadership of
his employees' protected, concerted activity.
Therefore, I find that Respondent discharged Gary
Beckham, Larry Stafford, and James McGary on April 19
because they organized and conducted the April 7
meeting. In so doing, it discharged them for engaging in
protected, concerted activities and thereby violated Section
8(a)(1) of the Act.
4. The other allegations of the complaint
The complaint also alleges that Leverson interrogated
and threatened employees with discharge on April 19. I
have found that Leverson angrily asked the Charging
Parties about their organization when they first walked
into the storeroom on April 19 That question asked in
that way under those circumstances is clearly coercive. I
find that Respondent thereby "interrogated employees
about their union activities" in violation of Section 8(a)(1)
of the Act.
I have found that Leverson did not tell the Charging
Parties in that same confrontation that he would fire
anybody who joined a union. Therefore, I find that
Respondent did not, on April 19, threaten "employees
with discharge if they engaged in union activities."
C Other matters
Near the end of Respondent's brief the following
paragraph appears.
Other matters Under these circumstances there is
obviously no necessity to burden this proceeding
further, with regard to (1) the supervisory status of two
of the Complainants; (2) the abuse of legal processes
indulged in by the Complainants; (3) the fact of
uncontradicted misrepresentations being made to
federal officials; (4) the lack of standing by the
Complainants to bring these charges, (5) the refusal to
abide by the Freedom of Information Act; and (6) the
related absence of fair procedures inherent in the
procedures preliminary to the hearing.
1 The supervisory issue
Respondent took the position during the hearing that
crew chiefs are supervisors within the meaning of the Act.
At the time of their discharge Beckham and McGary were
crew chiefs. In addition McGary had recently been an
assistant manager trainee. McGary went to work for
Respondent in April 1967. He was transferred to the store
in Killeen, Texas, in September 1968 as an assistant
manager trainee He remained there in that capacity until
January 1969 at which time he returned to Austin He
worked for about a week helping to prepare the new
Guadalupe store for opening and then went to Capital
Plaza, still as an assistant manager trainee. In late March
he asked Wheelis to be relieved of his supervisory duties
as an assistant manager trainee He told Wheelis he was
unhappy in that position because he felt ineffective as low
man on the managerial totem pole Wheelis sent him to
Leverson. Leverson granted his request He dropped back
to the crew chief level at that time
In Respondent's operations the hierarchy runs owners,
store managers, assistant store managers, crew chiefs,
untitled workers. There is, apparently, no dispute that the
owners, the store managers, and the assistant store
managers are supervisors within the meaning of the Act
If there is, the roles which Leverson, Wheelis, and Meyer
played in the discharges of Beckham, Stafford, and
McGary in these cases clearly establish that they are.
There are approximately 35 employees at the Capital
Plaza store. Approximately 10 of them have the title of
crew chief. A full crew for a rush hour consists of as
many as 20 employees Any number of crew chiefs may
be included among the employees working at any one
time. However, only two of them serve as crew chiefs at
any one time. They are specifically designated on the
schedule or verbally by the manager or assistant manager.
They display the fact that they have been designated by
wearing a special red hat Other employees working with
them, regardless of whether they have the title crew chief
or are untitled workers, wear ordinary McDonald's white
hats
When designated to act, a crew chief is in charge of a
specified portion of the operation. His role is to train new
men and make sure the other employees are carrying out
their part of the team effort required. The manner in
which Bienvenido Reyes urged Gary Beckham to work
harder on April 19 is a typical example of the crew chief's
role. He receives no extra pay when he serves as a crew
chief He has no authority to reprimand employees
wearing white hats. If the white hats do not respond to his
leadership, he carries the problem to the manager or
assistant. Crew chiefs attend meetings with the manager
and assistant managers There was only one such meeting
in the period from January 1 to April 19.
Bienvenido Reyes and an employee named Joe Seibert
wore the red hats on April 19 Beckham and McGary
wore white hats There is no indication in the record of
when Beckham and/or McGary were last designated to
act as a crew chief prior to April 19.
Based on the foregoing, I find that crew chiefs are, at
most, leadmen and expediters possessing none of the
statutory indicia of supervisory authority, including the
duty of responsibly directing the work of others Any
direction they give to the wearers of the white hats is
routine and does not require the exercise of independent
judgment I find, therefore, that Respondent's crew chiefs
are not supervisors within the meaning of the Act
MCDONALD'S CARRY-OUT RESTAURANT 1023
2 The procedural issues
Items (2) through (6) in the paragraph quoted above
from Respondent's brief refer, in one way or another, to
the various motions and objections made at the beginning
of the hearing, as detailed in the Statement of the Case at
the beginning of this Decision. In part, at least, they grow
out of efforts to reach a settlement prior to hearing
On Sunday, July 13, 2 days before the hearing opened,
the Charging Parties, with the General Counsel's
permission, met with counsel for Respondent at his office
Settlement was discussed. However, when counsel for
Respondent asked the Charging Parties their versions of
the facts in order to assess the situation, they politely
declined to discuss the facts. Counsel asked the Charging
Parties why they insisted on bringing this law suit
Beckham replied that it might do them some good some
day. Discussion revealed that he was referring to the fact
that all three of the Charging Parties are planning to
study business management in college and feel that the
experience of these cases might prove valuable in their
future
Counsel for Respondent also established at the hearing
that Stafford and McGary were actively looking for other
jobs just prior to their discharges. However, they had not
found any and had not notified Respondent that they were
about to quit I assume counsel's purpose in eliciting this
information was to support his contention that the
Charging Parties have no standing to bring the charges in
these cases.
I find no merit to any of the defenses raised in passing
in the "Other matters" paragraph of Respondent's brief. I
hereby reaffirm my rulings made at the hearing on
Respondent's motions and objections
Upon the foregoing findings of fact, and on the entire
record in this case, I make the following
CONCLUSIONS OF LAW
1 Harold Leverson and John Bohling d/b/a
McDonald's Carry-Out Restaurant are an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
2 By discharging Larry Stafford, Gary Beckham, and
James McGary on April 19, 1969, because they engaged
in protected, concerted activities and by interrogating
them on the same day about their union activities,
Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed to them
by Section 7 of the Act and thereby has violated Section
8(a)(1) of the Act
3 The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act
4 The allegation of the consolidated complaint that
Respondent violated Section 8(a)(l) of the Act by
Supervisor Harold Leverson's threatening employees with
discharge, on or about April 19, 1969, if they engaged in
union activities has not been sustained
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action which will
effectuate the policies of the Act
I have considered withholding the usual reinstatement
and backpay remedy in the case of Gary Beckham on the
ground that he precluded himself from reinstatement by
deliberately ruining half a crate of lettuce However, the
record will not sustain a finding that he acted deliberately
or with malice Lettuce had been used at the Capital
Plaza store for only a short period of time prior to April
19 Beckham testified that he had never been told that
cold water must be used, and no witness testified to the
contrary. Beckham testified that on the occasions before
April 19 when he had chopped lettuce he had followed the
same procedure, simply turning on the faucets at random
and going to work, and there is no evidence to the
contrary The fact that steaming hot water came out on
April 19 could be pure chance resulting from Beckham's
ignorance or it could be another manifestation of the
general disaffected attitude among Respondent's
employees, especially Beckham, which gave rise to these
cases, or it could be the result of malice On the record
before me I am not prepared to say which. Therefore, the
most that I can render in Beckham's case is the Scotch
verdict, not proved Consequently, I will recommend that
Respondent offer to him as well as to Larry Stafford and
James McGary reinstatement to their former or
substantially equivalent positions without prejudice to
their seniority or other rights and privileges and make
each of them whole for any loss of earnings he may have
suffered as a result of his discharge by paying to him a
sum of money equal to that which he normally would
have earned as wages from April 19, 1969, to the date of
Respondent's offer of reinstatement, less his net earnings
during such period, with backpay and interest thereon to
be computed in the manner prescribed in F. W
Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co, 138 NLRB 716
Finally, I conclude that the unfair labor practices
committed by Respondent demonstrate disdain for the
rights of its employees under the Act and a likelihood that
violations will be repeated in the future Therefore, I will
recommend that Respondent be ordered to cease and
desist from interfering with those rights in any manner.
Upon the basis of the above findings of fact,
conclusions of law, and the entire record in these cases,
and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I hereby issue the following
RECOMMENDED ORDER
Harold Leverson and John Bohling d/b/a McDonald's
Carry-Out Restaurant, their agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging its employees because they have
engaged in or are engaging in protected, concerted
activities
(b) Interrogating its employees about their union
activities
(c) In any manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Larry Stafford, Gary Beckham, and James
McGary immediate reinstatement to their former or
substantially equivalent positions without prejudice to
their seniority or other rights and privileges and make
each of them whole for any loss of pay suffered as a result
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his discharge in the manner set forth under "The
Remedy," above.
(b) Notify Larry Stafford, Gary Beckham, and/or
James McGary if presently serving in the Armed Forces
of the United States of their right to full reinstatement
upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act,
as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
,,(d) Post at each of its stores in Austin and Killeen,
Texas, copies of the attached notice marked "Appendix." 1 3
Copies of said notice, on forms provided by the
Regional Director for Region 23, after being duly signed
by Respondent's authorized representative, shall be posted
by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 23, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'
I FURTHER RECOMMEND that the consolidated complaint
be dismissed insofar as it alleges that, on or about April
19, 1969, Supervisor Harold Leverson threatened
employees with discharge if they engaged in union
activities
"in the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of-the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 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 In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 23 , in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX ,
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Realtions
Board An Agency of the United States Government
The Act gives all employees these rights
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
aid or protection
To refrain from any or all of these things
WE WILL NOT do anything that interferes with these
rights
WE WILL NOT ask you questions about your union
activities.
WE WILL NOT discharge our employees because they
have engaged in or are engaging in protected, concerted
activities
WE WILL offer to reinstate Larry Stafford, Gary
Beckham, and James McGary immediately to the job
each held on April 19, 1969, or one substantially
equivalent to it without any change in his seniority or
other privileges he enjoyed before we discharged him
and WE WILL pay to each of them any money he lost as
a result of his discharge with interest at 6 percent.
WE WILL notify Larry Stafford, Gary Beckham,
and/or James McGary if presently serving in the
Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
Dated By
HAROLD LEVERSON AND
JOHN BOHLING D/B/A
MCDONALD'S
CARRY-OUT RESTAURANT
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
6617 Federal Office Building, 515 Rusk Avenue, Houston,
Texas 77002, Telephone 713-228-4296