Winn Dixie Stores, Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1973

206 N.L.R.B. 777 (N.L.R.B. 1973)

WINN DIXIE STORES, INC.
Winn Dixie Stores Inc. and Freight Drivers, Ware-
housemen and Helpers , Local Union 390, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America.
Case 12-CA-4410
October 30, 1973
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On March 10, 1970, the National Labor Relations
Board issued its Decision and Order 1 in the above-
entitled proceeding finding that Respondent had dis-
criminated against certain named individuals by dis-
criminatorily discharging, them and that it had
engaged in this and other conduct in violation of Sec-
tion 8(a)(3) and (1) of the National Labor Relations
Act, as amended. The Board's Order directed, among
other things, that Respondent, its officers, agents, suc-
cessors, and assigns, offer reinstatement to five dis-
criminatees and make them whole for losses suffered
as a result of this discrimination.
On March 28, 1972, the United States Court of
Appeals for the Fourth Circuit enforced, in part,2 the
Board's Order. Specifically, the court granted en-
forcement only as to three of the five discharges which
we found to be unlawful and it also declined to en-
force our finding that the strike which was called after
the discharge of several employees was an unfair la-
bor practice strike. Thereafter, a backpay specifica-
tion and notice of hearing was issued by the Acting
Regional Director for Region 12 and a hearing was
held on November 8 and 9, 1972, before Administra-
tive Law Judge Ivar H. Peterson to determine the
amount of backpay due the three discriminatees, Jo-
seph B. Gause, Leonzie Jones, and Willie Hightower.
As hereinafter discussed, the only substantive issue
raised before the Administrative Law Judge was
whether or not backpay for three discriminatees
should be tolled during a period, subsequent to their
discharges, when they allegedly participated in a
strike at Respondent's store.
On February 7, 1973, the Administrative Law
Judge issued his Supplemental Decision and Order
finding that the three discriminatees were active mem-
bers of the Union who supported the strike and that
their backpay should be tolled for the period that they
participated in this strike. Thereafter, the General
Counsel filed exceptions to the Administrative Law
'181 NLRB 611.
2 448 F 2d 8.
777
Judge's Supplemental Decision and Order along with
a supporting brief and the Respondent filed an An-
swering Brief to the General Counsel's exceptions.
'Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the excep-
tions and brief and has decided to affirm the rulings,
findings, and conclusions, and recommendations of
the Administrative Law Judge only to the extent that
they are consistent with the following Decision.
The record in this matter discloses, and it is undis-
puted, that, prior to their discharge, the three discrimi-
natees very actively demonstrated their support for
the Union, a factor which was found to have played
a decisive part in Respondent's decision to discharge
them in violation of Section 8(a)(3) and (1) of the Act.
Hightower, Gause, and Jones were discharged re-
spectively on October 1, October 31, and November
5, 1968. Approximately 5 days after Jones' discharge,
the Union called a strike which lasted from November
10, 1968, until June 23, 1970. Throughout the strike
period, Respondent did not offer reinstatement to the
discriminatees herein. However, during the strike and
while picketing was going on, Hightower went to Re-
spondent, on his own, on March 30, 1970, applied for
reinstatement and was permitted to return to work.
Jones and Gause were offered reinstatement on June
23, 1970, when the strike ceased along with a great
majority of the strikers who desired to do so.
Based upon evidence that the three discriminatees
had been very active in the Union, that they had
participated in negotiations and that they had voted
to join the strike, the Administrative Law Judge con-
cluded that it was reasonable to presume that they
continued to support the strike during its duration.
Such a presumption is of course contrary to estab-
lished Board policy. The Board has consistently held,
in cases involving employees who have been unlaw-
fully discharged before an economic strike is called,
that the entire duration of the strike is includible in
the backpay award period because the employer's
own discrimination against the claimants makes it
impossible to ascertain whether such claimant would
have gone out on strike in the absence of the discrimi-
nation and the resulting uncertainty must be resolved
against the employer. See e.g., Spitzer Motor Sales,
102 NLRB 437, East Texas Steel Castings Co., 116
NLRB 1336.
As'noted, the Respondent herein never offered the
reinstatement to these discriminatees which would
have resolved the uncertainty it had created. The va-
lidity of the principle of resolving the uncertainty
206 NLRB No. 125
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against the wrongdoer is demonstrated here by the
only affirmative evidence bearing upon the discrimi-
natees' attitudes toward accepting reinstatement dur-
ing the strike. We refer, of course, to the action of
discriminatee Hightower in seeking reinstatement on
his own volition and returning to work while the strike
was in progress. This evidence shows the fallacy of
presuming, as did the Administrative Law Judge, that
individuals recognized as union activists will auto-
matically refuse an offer of reinstatement in order to
demonstrate their support for the union during the
strike. To hold that an employer who has wrongfully
discharged an employee prior to a strike may escape
the consequences of his misconduct by simple inac-
tion in failing to offer reinstatement to the employee
would reward the employer for his misconduct. To
require the fired employee to apply to the employer
who has evinced no retreat from his unlawful conduct
appears hardly reasonable, and also contrary to the
well-established legal principle that a condition once
established-the employer's refusal to employ the em-
ployee-is presumed to continue in the absence of
evidence showing a change has occurred.'
In sum, after consideration of all the relevant facts
disclosed in the record, we conclude that the Respon-
3 See Knickerbocker Plastic Co., Inc., 132 NLRB 1209, 1212, including In.
6, wherein the Board granted backpay over the duration of a strike to a
prestrike discriminatee who joined the strike but was not offered reinstate-
ment during its course , while denying backpay for the strike period to anoth-
er prestrike discriminatee because she refused an offer of reemployment as
long as the strike lasted . To us, that case is illustrative of the validity of our
approach and holding herein.
dent has not sustained its contention that Gause,
Jones, and Hightower were not available for work,4 in
the cases of Gause and Jones, from November 10,
1968, to June 23, 1970, and, in the case of Hightower,
from November 10, 1968, to March 30, 1970.
Accordingly, we find that they are entitled to back-
pay from the date of their unlawful discharge to the
respective dates of their reinstatement including the
period that the strike was in progress.' The Board
therefore enters the following:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Winn
Dixie Stores, Inc., Hialeah, Florida, its officers,
agents , successors, and assigns, shall:
1. Pay Joseph B. Gause $17,960.45 and transmit to
him a watch which it normally presents to 10-year
employees.
2. Pay Leonzie Jones $5,570.24.
3. Pay Willie Hightower $2,559.74.
In each case there shall be added interest at the rate
of 6 percent per annum calculated in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716,
less any required tax withholdings.
To the extent that N.L.R.B. v. Rogers Mfg. Co., 427 F.2d 712 (C.A. 6,
1970), is inconsistent with the above, we respectfully disagree with the court's
rationale for the reasons above set forth.
5 In view of our determination herein , we find it unnecessary to pass on
the General Counsel's contention that the Administrative Law Judge, in
reaching his decision , failed to consider the oral argument offered by the
General Counsel at the hearing.