Winn Dixie Stores, Inc.

National Labor Relations Board - Board Decisions

Mar 10, 1970

181 N.L.R.B. 611 (N.L.R.B. 1970)

WINN DIXIE STORES, INC. 611
Winn Dixie Stores , Inc. and Freight Drivers,
Warehousemen and Helpers , Local Union 390,
affiliated with International Brotherhood of
Teamsters , Chauffeurs, Warehousemen & Helpers
of America . Case 12-CA-4410
March 10, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On September 12, 1969, Trial Examiner Frederick
U. Reel 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. He
also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed. Thereafter, the General Counsel and
the Respondent filed exceptions to the Trial
Examiner's Decision and supporting briefs.
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 reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner as modified herein.
The Trial Examiner found, and we agree, that
Respondent engaged in various violations of Section
8(a)(1) of the Act by conduct which included threats
and interrogations of employees Darnell Gause,
Leonzie Jones, and Louis Wiggins.' For the reasons
stated by the Trial Examiner, we find that
Respondent violated Section 8(a)(3) and (1) of the
Act by discriminatorily discharging employees
Willie Hightower, Leonzie Jones, and Joseph Gause.
However, we disagree with the Trial Examiner's
conclusion that the Respondent did not violate
Section 8(a)(3) and (1) of the Act when it discharged
employees S. W. Melton and Darnell Gause.
S. W. Melton has been employed as a laborer for
Respondent for over 4 years and was considered a
"terrific, no problems, good man."2 Since he was
familiar with the fork lift, he was promoted in June
1968, to "set down man", a job which required him
to keep slots well stocked with goods. In April,
In dismissing other incidents of alleged 8 (a)(1) conduct , the Trial
Examiner found Respondent 's witnesses to be credible in their denials The
record does not warrant a reversal of the Trial Examiner ' s credibility
resolutions or his consequent conclusions
Melton had been active with his fellow employees in
presenting grievances to the Employer. In this
regard, Melton arranged for the employee meeting
place, and later, in a meeting with Respondent's
supervisors, questioned the Respondent's failure to
grant some employee proposals in regard to the
grievances presented. Thereafter, Melton was active
in contacting the Union and soliciting employees to
sign cards.
After Melton's promotion, Respondent conceded
that he performed satisfactorily for some time, but
contended that after a while he spent too much time
talking to the laborers. Respondent claimed that
supervisors and some selectors complained about
Melton's slow work, and for that reason Respondent
discharged him. The Trial Examiner opined that
Respondent may have been motivated by a desire to
get rid of Melton because of his suspected prounion
activity, but concluded that the General Counsel
failed to establish his case by a preponderance of the
evidence. However, we find, in disagreement with
the Trial Examiner, that the General Counsel amply
carried his burden in this case.
As noted, Melton was active in the employees'
concerted activities, openly questioned Respondent's
failure to alleviate some grievances, subsequently
actively promoted the Union, and was discharged
prior to the scheduled election. After Melton's
promotion to set down man, he apparently did
perform satisfactorily for some time. Respondent
claims his work slacked off prior to his discharge,
and that selectors Fred Corley and John Beachem
complained about Melton's work. However, Corley
and Beachem denied they had singled out Melton
for complaint. Their testimony fails to support
Respondent's asserted reasons for Melton's
discharge. In addition, Respondent never considered
giving Melton, a satisfactory employee for over 4
years, another job and its failure to do so is not
convincingly explained.
Under all the circumstances, we find that
Respondent's asserted reasons for discharging
Melton to be pretextual, and that Respondent's real
reason was to discourage union activity. Although
Melton never wore a union button and never
solicited employees on the job, Respondent was
aware of his active leadership role among the
warehouse employees. Accordingly, we find that by
the discharge of Melton prior to the scheduled
election, Respondent violated Section 8(a)(3) and (1)
of the Act.
Similar to the case of Melton are the
circumstances surrounding the discharge of Darnell
Gause Gause was employed as a driver for over 7
years by Respondent, and apparently was a
satisfactory employee, though he had failed to take
certain advertising material to Key West on June
25, 1968, for which he received a reprimand. He had
also received four reprimands over a period of years
'Testimony of Melton's supervisor, Gary Basile
181 NLRB No. 88
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for being late, prior to August 1968. In August, he
refused to accept a reprimand for a stop of 10
minutes after his truck was unloaded, claiming that
he was not the one who delayed departure for that
time, but some other driver. However, on August 10
and 12, Gause was admittedly late for his scheduled
runs because he was held up by a police-enforced
curfew established after outbreaks of violence.
Gause had informed the dispatcher as to the reason
for his lateness on both occasions, who told Gause it
was "good" Gause had told him. The dispatcher
issued no reprimands, but the next day, August 13,
Gause was discharged, allegedly for excessive
tardiness.
The Trial Examiner expressed doubts that the
"tardiness" reason was the real reason for
discharge, but dismissed the complaint for lack of
proof that Gause was more active in the Union than
others who were retained. We do not agree.
Although Darnell Gause was not particularly
active in the Union, he had signed a union card and
attended some meetings . For the reasons noted
hereafter, we conclude that Respondent believed that
Darnell Gause was active in the Union, and that he
was discharged for this reason, and not for his
tardiness.
Darnell Gause was the brother of Joseph Gause, a
union steward, who was known to Respondent as an
active union leader, and who was subsequently
discriminatorily discharged. Also, about 2 weeks
before his discharge, Darnell Gause was accused by
Respondent of talking about the Union to certain
store employees, which interrogation and accusation
the Trial Examiner found to be violative of Section
8(a)(1) of the Act. Although Gause explained to
Respondent that he had not been to that store, it is
clear that Respondent continued to believe him to
be an active union supporter. This is borne out by
the reprimand Gause received on August 6 for
talking to employees at another store for 10 minutes
after his truck was unloaded. The discriminatory
nature of his discharge is further corroborated by
the credited testimony of Wiggins that a supervisor
told Wiggins during a discussion about the Union
that Lunetta intended "to fire the old guys . . one
by one," an expression also attributed to Lunetta by
the credited testimony of Darnell Gause. This
intention became reality with the discriminatory
discharges of Willie Hightower, Leonzie Jones,
Joseph Gause, S. W. Melton, and Darnell Gause, as
well.
From the record as a whole, we find that the
motivating reason for the discharge of Darnell
Gause was Respondent's belief that he was, as
Respondent knew his brother to be, an active union
supporter. We conclude that the stated reason for
the discharge of Darnell Gause, tardiness, was in
fact a pretext. In this connection we note that
Respondent had tolerated excessive tardiness before
and that Gause's explanation for his lateness was
plausible and was in fact initially accepted by the
Respondent . Therefore , we find that Respondent
violated Section 8(a)(3) and ( 1) of the Act when it
discharged Darnell Gause . Accordingly , we will
order reinstatement and backpay for S . W. Melton
and Darnell Gause, as well as for the other
employees when the Trial Examiner found were
discriminatorily discharged . The Trial Examiner's
Conclusions of Law number 2 is hereby modified by
adding the names of those two employees.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, Winn Dixie Stores, Inc., Hialeah,
Florida, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order, as herein
modified:
1. Paragraph 2(a) of the Trial Examiner's
Recommended Order is amended by deleting the
present paragraph 2(a) and inserting the following
new paragraph as follows:
"(a) Offer to reinstate S. W. Melton, Darnell
Gause, Joseph Gause, Willie A. Hightower, and
Leonzie Jones to their former or substantially
equivalent positions, and make each of them whole
in the manner set forth in the portion of the Trial
Examiner's Decision entitled "The Remedy," for
losses suffered as a result of their discharges in July,
August, October, and November 1968."
2. Footnote 11 second sentence should be
amended to read as follows:
"In the further event this Order is enforced by a
judgment of the United States Court of Appeals, the
words in the notice reading Posted by Order of the
National Labor Relations Board shall read Posted
pursuant to a Judgment of the United States Court
of Appeals enforcing an Order of the National
Labor Relations Board."
3. Amend the first indented paragraph of the
notice, in the following manner:
WE WILL offer S. W. Melton, Darnell Gause,
Joseph Gause, Willie A. Hightower, and Leonzie
Jones, their former jobs, and WE WILL pay each
of them for losses they suffered as a result of our
having discharged them in July, August, October,
and November 1968.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U REEL, Trial Examiner: This case, heard
at Miami, Florida, on June 10 through 12, 1969, pursuant
to a charge filed December 20, 1968, and a complaint
issued April 23, 1969, presents questions as to whether
Respondent, herein called the Company, discharged eight
employees for membership in, or activity on behalf of, the
WINN DIXIE STORES, INC.
Charging Party, herein called the Union , and whether
various statements allegedly made by company supervisors
infringed upon employee rights under Section 7 of the
Act.
Upon the entire record in the case, including my
observation of the witnesses , and after due consideration
of the brief filed by the Respondent , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company, a Florida corporation engaged in the
operation of a multistate chain of retail grocery stores,
annually does a gross volume of business in excess of
$500,000, annually ships goods valued in excess of $50,000
from its Florida warehouse to points outside the State,
and is admittedly an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act. The
Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
This case concerns warehouse employees and
truckdrivers employed at the Company's Hialeah, Florida,
warehouse. In the spring of 19681 a large number of these
employees, dissatisfied with certain conditions of
employment, presented their grievances to Superintendent
Don Lunetta Their chief spokesman at that time was Lee
Count Rutledge, who was thereafter made a supervisor,
apparently to meet one of the demands of the Negro
employees who complained of a racially discriminatory
promotions policy. Other active leaders of the employees
at that time included Leonzie Jones, Willie A. Hightower,
and S. W. Melton, whose later discharges are at issue
here, and Horace Larkins, as to whose subsequent status
the record is silent.
Notwithstanding the promotion of Rutledge, the
employees continued to be dissatisfied, and indeed testified
that conditions grew worse after the meeting with Lunetta
Accordingly, they turned to the Union for assistance, and
organizing campaigns commenced among both the drivers
and the warehousemen, culminating in elections which the
Union won in both units, on June 28 and August 2,
respectively. Bargaining negotiations up to November 10
proved abortive, and at that time (following the last of the
series of discharges here involved) the employees went out
on strike.
The events here in litigation concern allegedly unlawful
statements and allegedly unlawful discharges occurring
between July and November, inclusive It should be noted
that the Company is no stranger to unfair labor practice
proceedings, that it issued instructions to its supervisors
directing them to refrain from inquiries, threats, or
promises relating to the Union, and that Superintendent
Lunetta, whose conduct in an earlier proceeding was
partly responsible for the Fifth Circuit's holding the
Company in criminal contempt of a court decree (386
F.2d 309, 313), stated on the witness stand in this
proceeding that he thought it "common knowledge" that
"the company is anti-union." Neither the Company's past
violations nor its antiunion position dispenses with the
All dates hereinafter mentioned refer to 1968 unless otherwise specified
613
requirement that General Counsel establish his case on
this record by a preponderance of the evidence, but,
insofar as company hostility to the Union is a part of
General Counsel's proof, it is established on this record.
B. Interference, Restraint , and Coercion
The complaint alleges in chronological order, seven
alleged statements of supervisory officials, each alleged to
violate Section 8(a)(1) of the Act.
1 and 2. According to the testimony of truckdriver
Louis Wiggins, on or about July 19 he was outside the
dispatcher's office at the warehouse when Gerald
Youmans, who is in charge of seven retail stores, spoke to
Wiggins and to another employee, James Gold. To quote
Wiggins' version of Youmans' remarks:
He asked me if I joined the union. I told him yes.
He said that he did not believe me because I was too
good a guy to join the union After he found that I had
told him the truth, he told me that he: "Would beat my
ass the first time he saw me after that "
Q. What happened after that?
A. He asked Gold if he joined Gold said no Then I
walked away.
Youmans categorically denied ever inierrogating or
threatening any employee with respect to union activity.
Gold was not called as a witness.
The credibility issue is difficult to resolve. Wiggins gave
a fair amount of corroborative detail which tends to
buttress his account, but naturally one who asserts the
negative of such a proposition cannot be expected to
embellish his story Youmans' relationship with the
employees at the warehouse was not a close one, and there
is no plausible reason, other than any vindictiveness he
might personally feel against the Union, for him to have
raised the issue with a warehouse truckdriver. The failure
to call Gold as a witness to corroborate one side or the
other is unexplained.
As the testimony does not preponderate in favor of
General Counsel and as Youmans' denial impressed me as
credible under all the circumstances, I would dismiss these
allegations
3. Darnell Gause, whose discharge on August 13 is
discussed below, testified that about 2 weeks prior thereto
he was summoned to the office of Superintendent Lunetta,
who told Gause that Lunetta had received "bad reports"
on Gause from a certain store in the chain. Gause's
testimony continues:
A He said that he got a call from up there The
butcher said that we drivers were discussing the union.
He said that he did not mind our participating with the
union but there were too many drivers talking about the
union. He said that there would have to be a stop Put
to it. He said: "There will have to be a stop put to this
if I have to fire you one by one."
Q. Did you say anything9
A At the time9
Q. Yes.
A. I said that I did not remember being at that
particular store
Q. What happened?
A. He called the dispatcher.
Q. Please continue
A. He asked the dispatcher if I had been at store 227
that time. The dispatcher told him no, that my brother
was the one that had been to the store.
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Your-brother?
A. Yes.
Q. What happened?
A. Gary Gause was the one that was there Then he
.said he was sorry that he called me in, that I was the
wrong man at the time.
On cross-examination, Gause identified certain testimony
he gave in a related proceeding concerning the same
episode, as follows:
MR. LANQUIST: Thank you. I will quote from page
18 of the transcript. This is referring to the
conversation between the witness and Mr. Lunetta:
Q. What else did he say?
A. He said he didn't mind me talking about the
union, he said, but there was - I am trying to say it
just the way he said it. He said he didn't mind going
along with the union, but he didn't want the drivers
going around to the stores talking about it. He said
he wasn't going to have it. He said that he would
have to get rid of them because he would have to get
rid of them rather than having them going around to
the different stores.
MR. LANQUIST: That is the end of the quote.
TRIAL EXAMINER: Do you recall saying that?
A Yes, sir. Then at the end of that, sir, when I said
a few minutes ago, well, I said I remember as I was
going through this, well, him telling me on the end that
he would have to get rid of the drivers one by one.
TRIAL EXAMINER. Proceed.
Q. (By Mr. Lanquist) Were you also asked this
question and did you also give this answer?
Q. Going around to the stores doing what?
A. Discussing the union.
Q. Did he limit that to while they were working or
what?
A. He didn't say when. I considered it when I was
working because that was the only time the drivers
were around the stores.
Q. Now, Mr. Gause, did you give those answers in
response to those questions?
A. Did I what?
TRIAL EXAMINER: When you testified in that other
proceeding and you were sworn and there was a court
reporter present and lawyers, do you remember saying
what counsel just read to you?
A. I remember saying things but not just the way
they got it on that paper.
TRIAL EXAMINER: Do you , remember saying
approximately that?
A. Yes.
Lunetta denied the episode in the following manner-
Q. It has been charged in the complaint that on or
around August 1, 1968, that you told an employee that
the company will have to stop employees from talking
to the union. Do you recall ever making such a
statement?
A.' No.
Q. Did you ever make a statement like that?
A. No.
Q. To any employee?
A. No.
I credit Gause's detailed version over Lunetta's denial,
and I note that Lunetta and his counsel had apparently
heard the details of Gause's story before the instant
hearing but made no effort to give a contrary version of
the episode or to call the dispatcher to deny Gause's
account. In the absence of any rule prohibiting
conversations during working hours, the threat to
discharge drivers for talking about the Union during such
periods violated Section 8(a)(1) of the Act
4. The complaint alleges that in late September Lunetta
told an employee it was unlawful to wear a union button
on company premises. In support of the allegation, Willie
A. Hightower testified that on September 30, the night
before his discharge, when he was attempting to quell a
spontaneous walkout at the warehouse (described in
connection with the Burch discharge, infra), Lunetta came
up to him, asked why he was wearing a button marked
"Steward, Local 390," and told him "it was not legal . .
to wear it." Leonzie Jones' testimony corroborates
Hightower in this matter. Lunetta's version of the episode
is as follows:
A. This was the night of the walkout in the
perishable warehouse. Mr. Hightower was a driver on
the perishable dock I asked him to leave as he had no
duties up there. He had a run to pull in the morning. It
was already after 1:00 a.m. He pushed the big steward
button at me. I told him that this did not mean a damn
thing to me.
As the record indicates that employees wore union buttons
with impunity, I credit Lunetta's version of the episode,
and would dismiss this allegation as unsubstantiated. I am
reasonably certain that both Hightower and Jones
misunderstood Lunetta's comment for by the date of this
episode and thereafter the wearing of buttons was
common.
5 and 6. The testimony of Leonzie Jones supports the
allegations that Lunetta on or about October 10 advised
an employee that Lunetta had learned of his union activity
and would discharge him if it continued. On October 10
or 11, according to Jones, Warehouse Superintendent
James Durrance told Jones that Lunetta wanted to see
Jones in the office. Jones' testimony continues, referring
to Lunetta:
A He said: "I heard that you have been going
around here signing men up to go on strike. If I hear
anything or if anybody tells me that you have another
pad and pencil and are doing this, I am going to fire
you because the company cannot'stand a strike."
We talked and talked. He was very angry. He scared
me. We stayed there for about two hours and 'talked
about different things Then he said that: "We should
leave the union alone, that it ain't doing no good for
you. They can't promise you nothing but union dues."
He also said that it was like J. Gause. He said that
the first crook that he made, that he would fire him.
Lunetta denied ever telling any employee that Lunetta
learned the employee was engaging in union activities, and
denied ever telling an employee he would be discharged if
he continued to engage in union activities Durrance was
not called as a witness. I found Jones to be an impressive
witness, testifying with careful and full regard for the
truth. I credit his testimony over Lunetta's denial 2 and
find Lunetta's threat violative of Section 8(a)(1)
'I note that the Fifth Circuit which heard Lunetta's testimony in open
court in the cruninal contempt case resolved a credibility issue against him
386 F.2d at 312, 313 My resolution of the Jones -Lunetta conflict is based
on my observation of the witnesses and on their testimony before me, and
does not rest upon the court 's discrediting of Lunetta in the contempt trial
Indeed , in certain respects I credit Lunetta' s testimony as noted above
WINN DIXIE STORES, INC 615
7. Employee Louis Wiggins testified that about
November 3 he visited Lee Rutledge, who had by that
time been made a supervisor, at Rutledge's home, and
that during the course of the conversation about the
Union Rutledge stated that Lunetta intended "to fire the
old guys . . one by one because if we fire more than one
it would cause a strike." According to Wiggins,
-Rutledge's neighbor was present during the conversation.
Rutledge denied having any such conversation with
Wiggins or any other employee, and did not remember
Wiggins being at the Rutledge house after Rutledge
became a supervisor Rutledge and Lunetta both denied
that Lunetta ever told Rutledge of a plan to get rid of old
employees, one by one, to avoid a strike.
Again we are confronted with a close credibility
question. I have previously credited Youmans over
Wiggins because of what I regard as an inherent
improbability that Youmans would have made the
remarks Wiggins attributed to him But this is not to say
that I found Wiggins to be deliberately falsifying
testimony. On the contrary, in the Youmans matter it is
more likely that Wiggins either misunderstood or
misidentified Youmans. As to the Rutledge-Lunetta
episode, Wiggins' testimony sounds more plausible The
expression that men would be fired "one by one" was also
attributed to Lunetta by Darnell Gause, whose testimony
I credit Wiggins was a striker, and therefore not a neutral
or disinterested witness, but Lunetta and Rutledge were
part of management and were likewise far from neutral,
although Rutledge was a former leader of the rank and
file.
I am inclined to credit Wiggins in this matter in the
light of all the circumstances. Although the neighbor,
presumably disinterested, was not called to testify,
Wiggins took the risk of being contradicted by naming
another witness to the conversation. The threat, uttered as
it was in the context of a discussion of the union
movement in the plant, violated Section 8(a)(1) of the Act.
C. The Discharges
1 The drivers - Hightower and the Gause brothers
During the summer of 1968 the Company employed
approximately 55 truckdrivers at the Hialeah warehouse.
Vincent Yucaitis, who became transportation supervisor in
1967, testified that he first discharged a man late in 1967,
about 6 or 7 months after he became a supervisor, and
that he discharged two or three men in the first 6 months
of 1968. During the summer and fall of that year,
however, he discharged 10 to 12 more drivers, as well as 2
yardmen This period coincided with that in which the
employees became organized, and the charge filed by the
Union in this case alleges that each of the discharges was
caused by union activity. The Regional Director, however,
declined to issue a complaint as to several of the
discharged employees, thereby recognizing that mere
coincidence in time is insufficient to establish that union
activity was a cause of the discharge. The evidence and
my findings with respect to the drivers whose discharge
the complaint alleges was caused by union activity may be
summarized as follows.
a. Darnell Gause was discharged on August 13, less
than 2 weeks after Lunetta mistakenly accused him of
discussing the Union while making deliveries at a retail
store. In his more than 7 years with the Company, Gause
had apparently been a satisfactory employee, except that
on June 25, 1968, he failed to follow instructions to take
certain important advertising material with him on his run
to Key West, and on August 6 of that year he was
reprimanded for talking to store personnel for 10 minutes
after unloading his trailer.' The Company's personnel
record recites as the reason for his discharge, however, his
"excessive tardiness," and refers specifically to his lateness
on both August 10 and 12.' Although Yucaitis testified
that the reprimands of August 6 and June 25 figured in
his decision to discharge Gause, he did not make any
reference to those matters either orally or on the written
"termination" report, at the time of the discharge.
Gause admitted his "tardiness" on Saturday, August
10, and Monday, August 12, and on both days explained
the reason to Warehouse Superintendent Durrance who,
on hearing Gause's report, said it was good that Gause
had given the explanation and issued no reprimand. On
both days, according to Gause, he was detained en route
to work because of a police-enforced curfew which had
been established in the area in which he lived as a result
of serious outbreaks of violence. The Company was aware
of the curfew, and of the fact that the police between 8
p.m. and 6 a m. were checking people in and out of the
area in which Gause lived. Yucaitis testified that the
Company checked on other drivers and warehousemen
who lived in that area, and nobody else was late or
stopped. According to Yucaitis, the dispatcher had
telephoned Gause's home on August 12 when Gause was
late, and the dispatcher said Gause was at home. Gause
testified he had left before the dispatcher telephoned, and
the dispatcher did not testify.
Darnell Gause had signed a union card given him by his
brother, Joseph Gause, a union steward. He does not
appear to have been particularly active in the Union. To
be sure Lunetta accused him of "talking union" to the
men, but Gause, according to his own testimony, satisfied
Lunetta that this was a misidentification
Although the matter is by no means free of doubt, I am
inclined to dismiss the allegation of discriminatory
motivation in the discharge of Darnell Gause. I am far
from satisfied that the company-assigned reason of
tardiness on August 10 and 12 was the real reason.
Yucaitis had once tolerated five tardinesses in less than 2
weeks, and discharged the man only after the sixth
occurrence in that span. The curfew excuse which Gause
proffered must have appeared plausible under the
circumstances, and the whole episode suggests that
Yucaitis was looking for an excuse to discharge Gause.
The real question is whether, given the Company's
antiunion animus, this is enough to warrant a finding that
the reason Yucaitis was "looking for an excuse" was
resentment of Gause's union activity. Gause had received
two recent reprimands, both marked "final," and these
may have played a part in Yucaitis' desire to be rid of
him. In the light of his relatively minimal union activity,
and in the absence of any showing that the Company
believed him to be more involved in such activity than
other employees, a finding of unlawful discrimination in
his case would be tantamount to a holding that any time
an antiunion employer discharges any employee and gives
'This written reprimand concerned conduct at store 224, and is not to be
confused with the oral discussion with Lunetta a few days before covering
store 227 The written reprimand recites, "This is the second and Final
Time ," and states "He has been warned to stop this before," but the
record is silent as to the previous occasion The reprimand on the
advertising material is also marked "Final "
'Company records show that Gause had received four prior reprimands
for tardiness in 1965, 1966, and 1967
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a false reason, the true reason must be union activity
Some cases appear to go almost that far. See Shattuck
Denn Mining Corporation v. N L R B , 362 F.2d 466, 470
(C.A. 9). But in that case the employee was a union
officer, shop steward, and member of the grievance
committee. In the instant case the lack of proof that
Darnell Gause was more active in the Union than other
employees who were retained, or whose discharges are not
alleged to violate the Act, leads me to dismiss the
complaint as to him
b. Willie A Hightower was discharged on October 1,
the day after Lunetta's comment about the union
steward's button Hightower wore This case stands in
contrast to that of Darnell Gause in several respects
Unlike Gause, Hightower had been a prominent leader of
the disaffected employees even before the advent of the
Union, and unlike Gause, he was active in the Union.
Hightower was one of two drivers (J. B Gause was the
other) to wear a steward's button, and he served on all the
union committees. Although the Company had employed
him for over 5 years, it introduced no evidence whatsoever
that he had been reprimanded even once during that
period, again in sharp contrast to Darnell Gause, as to
whom the Company showed six reprimands in the last 42
months of his employment. That Hightower was a
satisfactory employee is further attested by the fact that
he normally earned a bonus in all but 1 or 2 weeks every
year According to Yucaitis a bonus is earned
approximately 90 percent of the time, so Hightower's
percentage would be well above average.
On October 1, the day of his discharge, Hightower
arrived at work shortly before 5:15 a.m.' but his load was
delayed, so he had to remain in the area near the
dispatcher so he could be notified when his load was
ready. He received the notification at 7 a.m., and, as
Yucaitis testified, was kept busy from 7 to 8 checking his
equipment. At 8 he left the warehouse with his
refrigerated truck bound for two stores, one at Kendall
and one at Homestead. The Company considered this a
"local" run; the Kendall store was 15 to 20 miles from the
warehouse, and the Homestead store was 12 to 13 miles
beyond Kendall. About 15 or 20 minutes after Hightower
left the warehouse, he stopped at "Royal Castle"
(apparently a small drive-in restaurant), where he went to
the restroom and picked up a "coffee to go" (presumably
coffee in a cardboard container which he carried out of
the restaurant with him) There is some conflict in the
testimony as to whether he later told the Company he first
got the coffee, and then went to the restroom. In any
event, the stop which was of some 12 to 14 minutes was,
of course, recorded on the tachograph, and Hightower
himself wrote the word "coffee" on the tachograph tape
to explain the stop.
A company supervisor saw the truck parked at the
Royal Castle, and reported the fact to Yucaitis. That
afternoon when Hightower returned from his trip to
Homestead, Yucaitis discharged him, allegedly for
violating the Company's rule against "stops" on local
runs.'
'The "clock time," expressed in hundredths , not minutes , was 5 22
'Yucaitis testified that he considered Hightower a "complainer," and
that this figured in the decision to discharge him. The matter was not
mentioned to Hightower at the time , and does not appear as a "reason" on
the personnel record Yucaitis testified that the complaints were over not
getting long runs, and were unjustified , but he also testified that a few
other drivers also asked for long runs and were not fired
The Company would have been within its legal rights if
it in fact discharged Hightower for the unauthorized stop.
On this record, however, I find that this was not the real
reason for the discharge. Hightower testified that he and
other drivers had stopped for coffee or to go to the
restroom when starting out on a delivery run, and
Yucaitis answered "I don't recall" and "I don't know"
when asked whether other employees had violated the
company policy or had been discharged for doing so. I
find it hard to believe that the Company would have
discharged a truckdriver with an unblemished record like
Hightower's,' for this isolated dereliction Pertinent here is
the observation of Judge Prettyman, speaking for the
court in E Anthony & Sons, Inc v. N L R.B, 163 F.2d
22, 26-27 (C.A.D C.), cert. denied 332 U S. 773,
. . . some of these employees had been long-time,
responsible and faithful employees, and others had been
commended for their work. All were discharged
summarily, without preliminary warning, admonition or
opportunity to change the act or practice complained
of Such action on the part of an employer is not
natural . If the employer had really been disturbed by
the circumstances it assigned as reasons for these
discharges, and had had no other circumstance in mind,
some word of admonition, some caution that the
offending lapse be not repeated, or some opportunity
for correction of the objectionable practice, would be
almost inevitable The summariness of the discharges of
these employees, admittedly theretofore satisfactory,
gives rise to a doubt as to the good faith of the assigned
reasons
See also Betts Baking Co v. N L.R B, 380 F 2d 199, 205
(C A. 10), where the court, speaking through Chief Judge
Murrah, approved as a statement of "controlling law,"
the proposition that " ' . in determining whether the
Company really discharged [the employee] for [the
assigned cause] it is fair to weigh all the facts, including
not only the anti-union animus of the Company, but the
seriousness of the offense, for if the offense be minor, it is
reasonable to infer that the severity of the penalty had its
source in some conduct beyond the offense.' "
The Board, of course, may not substitute its judgment
for that' of management as to what discipline the latter
may lawfully invoke for infractions of its rules N L R B
v. T. A McGahey, Sr, et a! d/b/a Columbus Marble
Works, 233 F.2d 406, 412-413 (C.A. 5). But more
pertinent here are such Fifth Circuit holdings as those in
N L R.B v. Sunnyland Packing Co., 211 F.2d 923, 924;
N.L R B. v. C & J. Camp, Inc, d/b/a Kibler-Camp
Phosphate Enterprise, 216 F.2d 113, 115; N L R B v.
Brady Aviation Corporation, 224 F 2d 23, 25, all holding
that on the facts there presented the Board could properly
find that the employer in each case in depriving the
employee of employment was in fact motivated by dislike
of the employee's union activity, rather thaft by the
employee's admitted misconduct or shortcomings.
I find in Hightower's case that his coffee stop was
merely an excuse seized on by the Company to rid itself
of a union leader, and that his discharge was a violation
of Section 8(a)(3) and (1) of the Act.
c. Joseph Gause was discharged November 5 under
circumstances which present still another variation on the
familiar theme of whether union activity was a substantial
'Hightower testified he never received a reprimand The Company did
not contradict this testimony , or introduce any records , as it did in the case
of Darnell Gause
WINN DIXIE STORES , INC 617
cause of the action. Gause, an employee of the Company
for more than 8 years, was a leader of the Union, served
as its observer at the Board election, and participated on
its behalf in bargaining negotiations with the Company.
However, Gause suffered a series of personal injuries on
the job, hurting a toe in 1963 or 1964, spraining a wrist in
1966 or 1967, spraining his back early in 1968, reinsuring
,his back about 6 weeks later, closing a door on a finger
about 2 months after that, and bruising his chest about l
month later. The back, wrist, and chest injuries caused
him to lose time from work.
On November 5 Lunetta called Gause to the office,
and, in the presence of Yucaitis, read Gause the list of his
injuries and discharged him. Up to this point in the story,
it would seem reasonably clear that General Counsel
failed to make out a case, for even assuming, as Gause
testified, that' other drivers had suffered hernias and other
injuries without being discharged, his list of mishaps is
impressive. But the story does not end here. Gause
testified that he and Yucaitis were seated in the office,
and that, after Lunetta read the list of injuries, the
following transpired:
A. I asked him if he thought that I caused those
accidents. I told him that I did not hurt myself on
purpose I told him that accidents just happen. I
probably just fell into a bad luck streak. He said-
"Well, I think that I will have to let you go." I said.
"That figures." He said- "Instead of stirring up all this
mess around here, why don't you go and get one of
those jobs that you were talking about at the meeting9"
I then asked him what he was talking about. He said
that I knew I said: "If you are talking about the union,
I have worked just as hard here as I ever have to help
organize." He said: "If you want to make your bed
hard, then you have to lay in it."
Q. Go on.
A. He then told Mr. Yucaitis to give me the check,
which he did.
Q. Did he have to get the check or was it there?
A It was there
Q. Go ahead.
A. Mr. Yucaitis handed me the check. I looked over
the check. He asked me if it was okay I said that, well,
there was one that was, was a work check... .
TRIAL EXAMINER: Speak up, please.
A. Well, he asked me if it was all right. I said that
my work check looks right but I don't know about the
savings check. I told them that I would have to check
on it and if it was not right that they would hear from
me. I told Mr. Yucaitis it was a pleasure working there
and maybe sometime in the future we could work
together again. I, left.
I have quoted this entire passage, not only to point out
the references to "stirring up all this mess," and to the
hard bed of Gause's own making, but also to emphasize
that Yucaitis as well as Lunetta were named as present.
Yet neither Yucaitis nor Lunetta, both of whom testified
after Gause, was even asked to deny any part of Gause's
account. After the direct examination of Lunetta on the
subject of Gause's discharge was concluded, the Trial
Examiner interrogated him as follows.
Q. TRIAL EXAMINER: Do you recall any conversation
that you had with Joseph Gause at the time that you
fired him?
A. You mean other than the accidents?
Q. Anything other than what you just said you told
him at the time?
A A few comments were made afterwards . It would
seem to me like he kind of snickered and he indicated
that I had fired him for other reasons
Q What did he say and what did you say9
A. I told him that I did not , that this was the reason
why I fired him.
Q You don't remember anything else that was said?
A. No.
Under all the circumstances I credit Gause 's version of
the final interview . Lunetta's statements at the time show
that Gause ' s union activity contributed substantially to
Lunetta's decision to discharge him. It follows , of course,
that the discharge violated Section 8(a)(3) and ( l) of the
Act.
2 The warehousemen and yardmen
a. S W Melton was discharged on July 9, nearly a
month before the Union won the election in the
warehouse, where he worked. He had not been prominent
in the union drive, but he had played a leading role in the
efforts of the employees to present their grievances the
preceding April, before they turned to the Union. A
satisfactory employee for over 4 years, Melton was
promoted a month or so before his discharge to "set down
man " According to the Company, he was a failure at this
job, and company policy did not permit downgrading him
to his former position.
According to company witnesses Melton in his new job
spent too much time talking to the laborers and did not
keep the "slots" well stocked with goods. Certain of the
employees whom the Company named as having
complained about Melton testified that they had never
done so, but merely complained that the work was too
much for one setdown man to handle, and it may well be
that Melton was no worse than average as a setdown man
It may also be that the complaints over his talking to the
laborers masked a fear that he was engaging in prounion
discussions. But this is speculation, supported, if at all,
only by intuition, and gives no basis for a finding. Again,
in seizing upon certain general complaints and translating
them into an attack on Melton, the Company may have
been motivated by a desire to get rid of him, but this is
likewise speculative. General Counsel failed to establish
his case as to Melton by a preponderance of the evidence,
and it should therefore be dismissed.
b. and c. Henry Lee Mathis and Edward Young, Jr,
yardmen, were both discharged on October 10. Their
duties involved the placing of trailers in the proper
position to be loaded, and if they were delayed in this
operation, the men from the produce department who
loaded the trailers were likewise delayed. Yucaitis testified
that he received numerous complaints from the latter
group about the delays, that the yardmen in turn
professed to be doing their best, and that after
investigating the matter, he decided the fault lay with the
yardmen and discharged them. There is some testimony
that the yardmen were working under handicaps, in that
construction work in the yard impeded their movements,
and other delays were caused by illness, by the breaking in
of a new man, and by the failure of another employee on
one occasion to chock the wheels on a trailer General
The Company argues that , even if Gause's discharge be found unlawful,
a reinstatement order should not issue , citing N L R B v Big Three
Industrial Gas & Equipment Co , 405 F 2d 1140, 1142-43 (C A 5) That
case dealt with a driver who had a record of traffic violations , and is not
analogous to the case at bar
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel, however, was not able to make out much of an
affirmative case on Mathis and Young. Both were union
members and wore buttons but this did not distinguish
them from a large group of employees. Young's button
read, "Steward, Local 390," and he testified that on one
occasion when he left it home, Supervisor Martin asked
him "in a joking way" where it was, and added, "You
stooges are trying to get these fellows organized."9 Also,
on redirect examination, Young remembered someone's
saying, "Why didn't you stewards get the people
organized and get the work done "
To be sure, General Counsel establishes that from time
to time Mathis and Young had done satisfactory work,
that they were discharged only a few days after they
began wearing union buttons, and that the Company was
hostile to the Union. However, I credit the testimony of
Martin and Yucaitis that the delays in the yard were
vexatious and were the cause of the discharge of these
men.
d Bartley Burch was discharged on October 16, near
the end of his 90-day probationary period. The Company's
personnel records attribute his discharge to "poor
company attitude, insubordination to company official,
willful destruction to company property on two different
occasions." According to the testimony of Superintendent
Page, on Sunday, October 13, and on Monday, October
14, he observed Burch performing his work in a careless
fashion, damaging merchandise as he loaded a truck and
again as he operated a forklift. Page testified that on both
occasions, he reproved Burch, who responded, "This .
company has a lot of money." I credit Page's testimony
with respect to those episodes, as well as his testimony
that he discharged Burch after reporting those episodes on
October 15 to Lunetta who agreed that Burch should be
discharged.
Burch was a union member and wore a button. Indeed,
Page testified it was a steward's button, similar to four
others worn in Page's department, although Burch
testified the button read merely "Teamsters Union Local
390." Burch's union activity was not such as to suggest
that he would be a likely target for discriminatory
treatment, but his role in a spontaneous work stoppage 2
weeks before his discharge gives rise to a question as to
whether he was discharged for protected concerted
activity.
On the occasion in question, when another employee,
known as Chico, was being discharged, Burch addressed
somewhat disrespectful remarks to a man whom he did
not know, but who was in fact Robert Schwieger, a
company security officer Schwieger told Burch that he
was discharged, but that action was shortly rescinded
when Schwieger realized that Burch had no way of
knowing Schwieger's position in the Company. Chico's
discharge, however, continued to create excitement as he
refused to leave the premises, the police were summoned,
and eventually (to quote Schwieger)
.. when it became apparent that Chico would have to
leave with the police, Mr. Burch said: "If he was going,
they would all go " The entire perishable shipping crew
walked out, well, with maybe one, two or three
exceptions.
Union officials helped to quell the disturbance, and all the
men returned to work in a few hours.
'The transcript reads "stooges " I received no motion to correct it, but it
is possible the witness said "stewards "
The point of all this is that when Burch himself was
finally discharged 2 weeks later, Page, who discharged
him at the plant gate, not only relied in part on Burch's
remarks to Schwieger, but also refused to let Burch come
into the plant because of Page's fear that Burch who had
"already started one work stoppage" would start another.
If in discharging Burch, Page was motivated in substantial
part by Burch's role in the earlier walkout, then the
discharge violated Section 8(a)(1), as the prior walkout,
whether or not "justified" or advisable, was a protected
concerted activity. Page testified that the prior walkout
was not a cause of the discharge, as it had been condoned
and Burch had returned to work, but it was a cause of his
not letting Burch in the plant after his discharge. This
calls for rather refined reasoning on the part of Page,
particularly as he noted as a cause of the discharge
Burch's disrespect to Schwieger, which preceded but was
closely related to the walkout On the other hand, it would
be a rather refined construction of the statute to hold that
once Burch had led the walkout, his subsequent discharge
for any cause would be unlawful because the Company
could not rid its mind of the fact that he had engaged in
that protected activity. I am inclined to credit Page that
he fired Burch, after checking with Lunetta, because of
Burch's remarks when Page reproved him, and I also
credit Page that while the earlier walkout caused him to
keep Burch out of the plant after the discharge, it was not
a significant factor in the discharge decision.
e. Leonzie Jones was discharged on October 31 after
investigation of a fire and explosion in which he had been
involved on October 25. There is no suggestion that the
explosion was other than an accident, but the Company
alleges that Jones was guilty of carelessness and also that
he told an untruth in the course of the investigation
Jones, an employee of the Company for 8 years, was an
outstanding leader of the union movement. He had been
prominent in the preunion presentation of grievances, was
a union observer at the election, and participated on
behalf of the Union in all the bargaining conferences As
noted above in the discussion of the violations of Section
8(a)(1), Jones was singled out by Lunetta and subjected to
a coercive interview in which Lunetta told Jones to leave
the Union alone and stated that J Gause, coleader with
Jones of the Union, would be discharged "the first crook
that he made." Gause was fired less than a week after
Jones' discharge
The question in Jones' case, of course, is whether the
Company seized upon the fire and the investigation
thereof as an excuse to rid itself of a union leader, or
whether the Company's explanation of the discharge was
the real reason for its action Some recital of the events
surrounding the fire, explosion, and investigation is
necessary.
The fire started at or near the gasoline pumps used to
refill the gas tanks on trucks and forklifts. A day or two
before the fire, 150 gallons of gasoline had been spilled
there because a driver at the refueling station had broken
the nozzle off the pump. The Company knew who this
driver was but apparently decided to visit no discipline
upon him, believing the matter to have been "an error"
(to quote Security Officer Schwieger). The gasoline leaked
into the ground and into a nearby pit under the adjacent
weighing scale The area was then heavily watered, but
this would not eliminate the danger of fire and explosion,
particularly in the pit or well
On Friday, October 25, Jones drove to the pumps in a
forklift, intending to fill it with gasoline He stopped at
the first pump, found the nozzle broken, and drove a few
WINN DIXIE STORES, INC. 619
feet to the other pump, only to find the nozzle on that one
also unusable Jones called to another employee,
Goodman, to ask his help or advice on how to put gas in
Jones' forklift After a moment's conversation, an
explosion occurred, followed by a fire. After a short
period, Jones' forklift which was on fire, began to roll off
the concrete, down a slope, and stopped after it had gone
15 or 20 feet
Jones' forklift had a standard shift and clutch. He
testified that when he got off it, dust before the explosion,
the motor was off and the transmission was in gear.
The fire department which extinguished the blaze made
two reports, but one of these (that of Captain Steadman)
was not in the Company's possession, whereas that of
Fireman Clavier was given the Company. In this report
Clavier quotes Jones as stating that "he had not shut off
the engine of the tow-motor nor had he gotten out of the
driver's seat . . when the fire started." Clavier's report
also states that "Captain Steadman was called to scene
and completed this investigation "
The Company conducted its own investigation through
Schwieger. One employee, Clark, gave Schwieger a
statement on October 29 in which the blame for the
explosion was placed on Jones Clark stated he saw Jones
run the forklift in such a manner as to scrape the concrete
curbing at the pumps and draw sparks, that Jones
continued to do so when Clark called to him to stop, that
Clark started to report this to a supervisor, Phillips, when
the explosion occurred, that the motor "had to be
running" when the forklift moved because when Clark
examined it after the fire, the forklift was in gear, and
that that afternoon Jones admitted causing the fire. The
Company did not call either Clark or Phillips as witnesses
at the hearing Schwieger also took statements from Jones
and Goodman. Both men stated to Schwieger that Jones
was off the forklift at the time of the explosion, the noise
came from the pit below the weighing scale, and the fire
jumped from there to the pumps. Jones further stated, as
he did at the hearing, that his motor was off; Goodman
does not mention that fact in his statement to Schwieger,
but testified before me that Jones' motor was off
As indicated above, the Company did not obtain
Captain Steadman's official fire report, but only the
station record of Fireman Clavier. Steadman's report,
dated the day of the explosion, shows that on that day he
investigated-the affair, came to the conclusion that the fire
started in the weighing scale pit, and so reported to Mr
Waldorf, Lunetta's superior, who is the warehouse
manager On the witness stand, Steadman thought that
probably the spark which ignited the gasoline vapor had
come from an electric pump used to pump out the pit
below the weighing scale. Steadman, in accordance with
an oral commitment to Waldorf on the day of the fire,
had written the Company a list of recommendations to
avoid future trouble, including a recommendation to erect
a wall between the weighing scale and the gasoline pumps
Of course, the Company did not have this in its possession
when it discharged Jones.
On October 30, the Company discharged Jones.
Lunetta and Schwieger talked to him in the office and
accused him of setting the gas pumps on fire When Jones
denied this and said he "would have to be crazy to do
that," Schwieger replied, "You have done crazier things
than that." Lunetta twice called Jones a liar, and this
provoked Jones into saying, "Why don't you go ahead
and do what you are going to do and get it over with?"
Lunetta replied, "I guess you are right" and told Jones to
punch out
The issue in Jones' case is not whether he caused the
fire, but only whether the Company was motivated in
discharging him by the fire episode or by his union
leadership. I find upon considering the entire record that
the Company seized upon the episode as a pretext to rid
itself of a union leader.
The Company asserts that it discharged Jones because
he lied about whether he had shut the motor off and
whether he was on the machine when the fire started.
Finally Lunetta pinned the matter down to a single
"falsehood" - that the motor was running when Jones
said he had turned it off In support of its alleged
conclusion, the Company allegedly relied on the statement
it took from employee Clark and the report of Fireman
Clavier As to Clark, the Company apparently now
disavows reliance on Clark's statement that Jones
admitted causing the fire. Even more significantly, the
Company does not rely on Clark's statement that Jones'
handling of the forklift was so dangerous that Clark was
in the process of reporting it to Supervisor Phillips.
Lunetta expressly disclaimed any belief that Jones
deliberately caused the fire, and the Company did not call
either Clark or Phillips as witnesses, although their
testimony if it had substantiated Clark's statement would
have gone far to defeat the case for Jones. Thus it seems
clear that the Company does not rely upon the really
damaging parts of Clark's statement When we recall that
at one point Schwieger actually accused Jones of
deliberately causing the fire, we may well wonder whether
the statement obtained from Clark was taken in the
course of a good-faith investigation, or in an effort to "get
something" on Jones.
The report of Fireman Clavier, who like Clark was not
an eyewitness to the event, states that Jones had not
turned his motor off and indeed was on the forklift when
the explosion occurred. Of course, if this is correct, then
Jones' version is incorrect, or (to use Lunetta's expression)
Jones "lied." Whether Jones was on or off the forklift
does not seem very important He had to be on it to drive
to the pumps. He rather clearly was not on it when he
discovered the second broken nozzle, called Goodman
over, and started to discuss the problem of how to fill the
tank. But even Lunetta did not emphasize this matter, for
on cross-examination he pinned the reason for the
discharge down to Jones' "lie" about whether or not he
turned the motor off. Here there is a sharp cleavage
between Jones' report and Clavier's. Clark in his report
"deduces" that the motor was on because the forklift was
in gear and rolled off the concrete. Of course, if the motor
had been on, the forklift would have kept going when
Jones got off, and would not have waited till it caught fire
before it moved The report of Clavier that the motor was
on is part of the same sentence that has Jones on the
forklift at the time of the explosion, and may be equally
inaccurate. However, the Company could well belidve that
Jones told inconsistent stories to Clavier and to the
Company on this matter
On the other hand, the Company made no effort to get
Captain Steadman's report (which would have cleared
Jones of responsibility for the fire) although Clavier's
report expressly states that Steadman was investigating.
But the Company already knew that Steadman's report
would not incriminate Jones, for the fire captain had
already stated his conclusions to Lunetta's superior,
Waldorf
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Most significant of all. only a day or two before, a
truckdriver (to quote Clavier's report) "had driven off
with the nozzle of the gasoline pump sticking in the fill
pipe of the truck, and ripped the nozzle off the hose and
caused about 100 gallons of gasoline to be spilled on the
ground. " For the Company to take no action with
respect to this truckdriver,'° whose negligence caused the
fire, and to discharge Jones, allegedly because of a
variation between his statement to the Company and
Clavier's report of Jones' statement to him, shows such
disparate treatment as to justify the inference that the fire
episode was a pretext, and not the real reason, for the
discharge of this union leader. I therefore find that the
discharge of Jones violated Section 8(a)(3) and (1) of the
Act.
D. The Strike
The employees went on strike on November 10. The
Company argues that the strike was caused by the failure
of the parties to reach agreement on a contract, and
points out that the literature and picket signs displayed by
the Union did not refer to the discharges discussed above.
The testimony of the employees establishes, however, that
their decision to strike, which they made against the
advice of the nonemployee union organizers, was
prompted largely by the discharges, particularly those of
Jones and Joseph Gause, which occurred shortly before
the strike. As these discharges were unfair labor practices
and were a substantial cause of the strike, it must be
considered an "unfair labor practice strike," not an
"economic strike."
CONCLUSIONS OF LAW
1. The Company by threatening to discharge employees
for union activity engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act.
2. The Company by discharging Willie A. Hightower,
Joseph Gause, and Leonzie Jones for union membership
and activity engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3)
and Section 2(6) and (7) of the Act.
3. The strike which commenced on November 10 was
an unfair labor practice strike, as it was caused in
substantial part by the unlawful discharges of Jones and
Joseph Gause.
4. Except as found above the Company did not commit
the violations alleged in the complaint.
THE REMEDY
I shall recommend the conventional remedy for the
violations found, including an order to cease and desist
from the unfair labor practices found and (because of the
serious nature of these violations and because of the
Company's demonstrated propensity to violate the statute,
even to the point of criminal contempt) from any other
invasions of employee rights under the Act. Affirmatively,
I shall recommend the reinstatement with backpay of the
men found unlawfully discharged, and the reinstatement
on application, of the strikers. Should the strikers, on
"Schwieger testified that at the time he knew who the driver was
Lunetta did not remember whether the driver had been discharged, but
Schwieger's testimony indicates that the driver was retained Schwieger's
only investigation was of the fire and apparently centered on Jones
application, be refused reinstatement, they shall be entitled
to be made whole for any loss of earnings suffered
beginning 5 days after their application. Any backpay
under the terms of this Recommended Order should be
computed in accordance with the formulas set forth in F
W Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co, 138 NLRB 716
Accordingly, upon the foregoing findings and
conclusions, and upon the entire record, I recommend,
pursuant to Section 10(c) of the Act, issuance of the
following:
ORDER
Respondent, Winn Dixie Stores, Inc , its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening to discharge or discharging or in any
other manner discriminating against employees because of
their membership in or activity on behalf of a labor
organization.
(b) In any other manner interfering with, restraining or
coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to reinstate Joseph Gause, Willie A.
Hightower, and Leonzie Jones to their former or
substantially equivalent positions, and make each of them
whole in the manner set forth in the portion of the Trial
Examiner's Decision entitled "The Remedy," for losses
suffered as the result of their discharges in October and
November 1968.
(b) Notify any of the above-named employees if
presently serving in the Armed Forces of the United
States of his 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) Upon application, offer to each of the employees
who went on strike on November 10, 1968, reinstatement
to his former or a substantially equivalent position
(discharging, if necessary, employees hired subsequent to
that date), and in the event of failure to do so within 5
days after their respective applications, make them whole
in the manner prescribed in the portion of the Trial
Examiner's Decision entitled "The Remedy."
(d) 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.
(e) Post at its warehouse at Hialeah, Florida, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 12, after being duly signed by Respondent's
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 the Respondent to
insure that said notices are not altered, defaced, or
covered by any other material
In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
WINN DIXIE STORES , INC. 621
(f) Notify the Regional Director for Region 12, in otherwise discriminate against any employee because of
writing, within 20 days from the receipt of this Decision , his membership in, or activity on behalf of, Teamsters
what steps have been taken to comply herewith." Local 390, or any other union.
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
WE WILL NOT in any other manner interfere with our
employees' right to join or be represented by a labor
union
WE WILL notify the above-named employees 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.
WE WILL reinstate, upon their application, any and
all employees who went on strike on November 10,
1968.
NOTICE TO ALL EMPLOYEES WINN DIXIE STORES, INC.
(Employer)
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL offer Joseph Gause, Willie A. Hightower,
and Leonzie Jones, their former jobs, and WE WILL pay
each of them for losses they suffered as a result of our
having discharged them in October and November
1968
WE WILL NOT threaten to discharge or discharge or
Dated By
(Representative) (Title)
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
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 706
Federal Office Building , 500 Zack Street, Tampa, Florida
33602, Telephone 813-228-7711.