Winn-Dixie Stores, Inc. v. NLRB

• Decision Date: 27 September 1971
• Docket Number: No. 14533.,14533.
• Citation: 448 F.2d 8
• Parties: WINN-DIXIE STORES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

448 F.2d 8 (1971)

WINN-DIXIE STORES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 14533.

United States Court of Appeals, Fourth Circuit.

Argued December 11, 1970.

Decided September 27, 1971.

Charles F. Henley, Jr., Jacksonville, Fla. (Otto R. T. Bowden, and Hamilton & Bowden, Jacksonville, Fla., on brief), for petitioner.

Michael F. Messitte, Atty. N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Eugene B. Granof, Atty., N. L. R. B., on brief), for respondent.

Before HAYNSWORTH, Chief Judge, and BOREMAN and BUTZNER, Circuit Judges.

BOREMAN, Circuit Judge:

Winn-Dixie Stores, Inc., (hereafter "Company"), asks this court to set aside, in part, an order of the National Labor Relations Board (hereafter "Board") based upon the finding that the Company had interfered with its employees' right to organize, that it had discriminatorily discharged certain employees, and that the strike which commenced on November 10, 1968, against the Company was an unfair labor practice strike. National Labor Relations Act, § 8(a) (1) and (3) as amended 29 U.S.C.A. § 158(a) (1) and (3). The Board, in turn, has cross-petitioned for enforcement of its order.

I

In the spring of 1968, many of the Company's warehousemen and truckdrivers at its Hialeah, Florida, facility discussed among themselves their dissatisfaction with conditions of their employment. These discussions led to a meeting in April 1968 which was attended by numerous employees and during which they presented their grievances to a few company officials, including Service Superintendent Lunetta. The results of this meeting were less than satisfying to the employees and they accordingly sought the assistance of a union.¹ After organizing efforts, the Union won Board-conducted "representation elections," i. e., the right to represent the employees of the Company, in separate units² of truckdrivers and warehousemen, on June 28, 1968, and August 2, 1968, respectively. Collective bargaining negotiations then commenced between the Union and the Company.

There were six prestrike meetings between company and union representatives for the purpose of negotiating a contract; the meetings were not successful.³ On Sunday, November 10, 1968, the employees who were members of the Union met and voted to strike, assertedly against the wishes of union officials present. That same day the striking employees appeared at a company warehouse with printed picket signs; these signs and the Union's handbills which appeared later, reflected only economic grievances against the Company.⁴ At no time did the Union change or alter its picket signs or its handbills to indicate that the walkout was an unfair labor practice strike.

Since there was no contract with an established grievance procedure in effect prior to the strike, the Union and the Company had discussed and attempted to resolve employee grievances during their negotiation meetings.⁵ The Union alleges that the discharge of eight employees prior to and subsequent to the time when it became the collective bargaining agent was the main factor underlying the strike on November 10, 1968.⁶ During the six negotiation meetings held prior to the strike the Union's representatives did not attempt to discuss with the Company the discharge of any one of these eight employees.⁷ Subsequent to the commencement of the strike the Company and the Union held three more meetings during which the Union did not mention the discharges of these eight employees.

Nearly a month after the commencement of the strike the Union filed charges against the Company with no allegation that the strike was caused by the discharges of employees. The Union did charge that the Company had fired a number of employees discriminatorily and had interfered with the employees' right of self-organization in violation of §§ 8(a) (3) and (1) of the Act. On May 26, 1969, two weeks prior to the hearing before the Trial Examiner and approximately seven months after the strike, the Union caused its complaint to be amended to include an allegation that the walkout was an unfair labor practice strike.

The Trial Examiner found that the strike was an unfair labor practice strike prompted in large measure by the unlawful discharges of Leonize Jones, Willie Hightower and Joseph Gause. He dismissed, as without merit, five of the eight charges of discriminatory discharge, including the charges that S. Melton and Darnell Gause had been fired unlawfully. Subsequently, the Board in its order affirmed the Trial Examiner's decision as to the cause of the strike and as to the discharges of Leonize Jones, Joseph Gause and Willie Hightower, but overruled him with respect to the releases of S. Melton and Darnell Gause, finding that they also had been discriminatorily discharged. Appellant now challenges the Board's order with respect to its holding that the strike was an unfair labor practice strike and that the discharges of S. Melton and Darnell Gause were discriminatory and in violation of the Act.

II

This court's jurisdiction of these proceedings is invoked under § 10(e) and (f) of the Act, since it appears that the Company transacts business within this judicial circuit albeit the happenings and events involved herein occurred in another circuit. Olin Industries, etc. v. National Labor Relations Board, 191 F. 2d 613 (5 Cir. 1951), n. 1, reh. den. 192 F.2d 799, cert. denied 343 U.S. 919, 72 S.Ct. 676, 96 L.Ed. 1332, reh. den. 343 U.S. 970, 72 S.Ct. 1055, 96 L.Ed. 1365.

III

The role of this court in this proceeding is clear. While it is generally the province of the Board to ascertain the facts, pass on the credibility of witnesses, and resolve conflicts in the testimony, this court may set aside those findings if they are not supported by substantial evidence on the record as a whole. The Supreme Court noted in Universal Camera Corporation v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), that:

"Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board\'s view." 340 U.S. at 488, 71 S.Ct. at 465.

IV

The Company has not challenged the Board's findings of violations of two sections of the Act, § 8(a) (1) by threatening employees with discharge and § 8(a) (3) and (1) by discharging Hightower, Jones and Joseph Gause. However, for such conduct to invest a strike with the label of an unfair labor practice strike the conduct must be shown by substantial evidence to have had a causal connection with the strike. Winter Garden Citrus Pr. Co-Op. v. National Lab. Rel. Bd., 238 F.2d 128, 129 (5 Cir. 1956); National Labor Relations Bd. v. James Thompson & Co., 208 F.2d 743, 746 (2 Cir. 1953). Upon the whole record we conclude that the Board's finding that the strike beginning on November 10, 1968, was caused, at least in part, by unfair labor practices is not supported by substantial evidence.

The Board's finding concerning the nature of the strike was bottomed upon the testimony, before the Trial Examiner, of four employees, Jones, Wiggins, Hightower and Joseph Gause. They testified that the employees had discussed the discharges of several of their leaders⁸ during their prestrike union meeting on November 10 and had voted to strike at the conclusion of this meeting since they feared further discharges to the extent that there would be no one left to negotiate on their behalf. Their testimony indicated that the decision to strike was made against the advice and wishes of union officials present at the meeting and that the walkout was a spontaneous occurrence. This testimony is suspect since shortly after this decision to strike, on a Sunday morning, the striking employees appeared at a Company facility with printed picket signs. Nevertheless, the Board relied upon this self-serving⁹ testimony and held that it constituted sufficient evidence of a causal connection between the Company's unfair labor practices and the strike.

There is substantial and persuasive evidence to the contrary. Union representatives did not mention the discharges during any of the nine negotiation meetings, not even during the three meetings following the strike. The Union did not indicate or suggest on its picket signs or in its handbills that the strike was to protest unfair labor practices. The Union did not claim that this was an unfair labor practice strike in its initial complaint against the Company, approximately one month after the beginning of the strike; indeed, the Union did not make this charge until two weeks prior to the hearing before the Trial Examiner, more than six months after the commencement of the strike. It is clearly apparent that the Union was attempting to salvage an unsuccessful economic strike with this belated charge. The only evidence indicating that the strike was in protest of unfair labor practices was the testimony of the four employees whose interested status is indisputably obvious.

Such testimony has been held incredible under similar circumstances. Filler Products, Inc. v. N. L. R. B., 376 F.2d 369 (4 Cir. 1967). Cf. National Labor Relations Bd. v. West Coast Casket Co., 205 F.2d 902 (9 Cir. 1953).¹⁰ In Filler Products this court reviewed an order of the Board based upon the testimony of several employees, given many months after the strike there involved, to the effect that it was an unfair labor practice strike. The union in that case even referred in its placards to the walkout as a "strike because of Unfair Labor Practices"; nevertheless, the employees' testimony was deemed insufficient in light of existent circumstances to show a causal connection between unfair labor practices and the strike.

We...