Winn-Dixie Atlanta, Inc.

290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Winn-Dixie Atlanta, Inc. and Isiah S. Gavin and Willena McClady. Cases 10-CA-9935-1 and 10-CA-9935-2 DECISION STATEMENT OF THE CASE November 13, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On May 25, 1973, Administrative Law Judge Almira A. Stevenson issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order. In adopting the Administrative Law Judge's finding that Respondent had condoned picket line misconduct, we also rely upon the offers of reinstate- ment contained in letters to the strikers dated August 29 and 30, 1972.1 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Winn-Dixie Atlanta, Inc., Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. I In adopting the Administrative Law Judge's finding of condonation with respect to employees Penn and Gavin, Chairman Miller relies solely on Respondent's letters sent to those employees on August 29, which were not made in the context of settlement discussions involving an attempt to resolve the entire dispute Chairman Miller questions, though he does not here find it necessary to decide, whether offers made in the give-and-take of attempted overall settlement of a number of pending issues (including the issue of whether certain employees had in fact engaged in misconduct) ought to be construed as condonation , or even ought to be considered admissible evidence with respect to that issue. The August 29 letters, however, were voluntary offers made outside of any negotiated settlement discussions and, as such, indicate to the Chairman Respondent's intent to overlook any past misconduct. That the August 29 letters also contained an illegal requirement that Penn and Gavin abandon their lawful strike activity does not detract from their value as reliable evidence of condonation. ALMIRA ABBOT STEVENSON, Administrative Law Judge: This consolidated proceeding was heard at Atlanta, Georgia, on March 27 and 28, 1973. The original charges were filed on January 10, 1973, and served on the Respondent January 11, 1973. Amended charges, filed on January 23, 1973, were served on the Respondent January 24, 1973. An order consolidating cases, complaint, and notice of hearing was issued March 6, 1973. The issues are (1) whether the Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, and converted an economic strike into an unfair labor practice strike by its letters dated August 29 and 30, 1972, to strikers Willena McClady, Isiah Gavin, and Theodus Penn threatening to discharge, and discharging, them effective September 5, 1972, or whether the strikers had been permanently replaced; (2) whether the strikers in their letter dated October 23, 1972, to the Respondent made an unconditional or a conditional request for reinstatement ; and (3) whether Isiah Gavin and Theodus Penn engaged in picket line misconduct by which they forfeited their right to reinstatement or whether the Respondent condoned any such misconduct. For the reasons fully set forth below, I conclude that the Respon- dent violated the Act and converted the strike as alleged and condoned the misconduct, but that the strikers have not unconditionally requested reinstatement and that Penn has abandoned his employment with the Respondent. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respon- dent, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION The Respondent is a Florida corporation, licensed to do business in Georgia, where it is engaged in the retail grocery business with annual gross income in excess of $500,000. It operates a retail grocery store on Steward Avenue, Atlanta, Georgia (Store No. 1874). During the past calendar year the Respondent purchased and received groceries valued in excess of $50,000 directly from suppliers located outside the State of Georgia. The Respondent admits and I conclude that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 207 NLRB No. 53 WINN-DIXIE ATLANTA - 291 II. THE UNFAIR LABOR PRACTICES D. No black supervisors E. No black bag-boys A. Facts' F. Whites payed more than blacks doing the same work 1. The strike G. Whites allowed to work in same stores with The Respondent operates a grocery store on Steward Avenue, Atlanta, Georgia, also referred to as Store No. 1874. The events herein have their genesis in discussions among black employees of the store some weeks before August 4,1972. During July 1972, several of these employees, including Isiah Gavin, journeyman meatcutter, and Willena McCla- dy, who testified she was a cashier and shelf-stocker (Code 7), met with officials of the Metro Atlanta DeKalli Chapter, Southern Christian Leadership Conference, and discussed the bases for their view that the store manager and the market manager of the meat department were prejudiced against blacks. The employees were advised to list their complaints and present them to the store manager. By August 4, however, they had failed to do so. On that day, Friday, August 4, Gavin was given a message from the front office of the store that he had received a telephone call and was to call back after work. A few minutes later, a white employee was summoned to the telephone over the store loudspeaker. Gavin informed the store manager, David McGarity, and the market manager in charge. of the meat department, Benjamin Meredith, that it was not right to permit white employees to take calls and to prohibit Gavin from taking one. Neither of the officials replied, Meredith' merely throwing his hands up and laughing. Gavin informed them that he could not work under such discriminatory conditions and walked out of the store. He was followed by the remaining black employees, McClady, cashiers Jo Ann Partridge and Wendolyn Pyron, meat trainee Hubert Gary, and Archie Bryant Whose classification is not of record. Shortly thereafter, Theodus Penn, produce clerk, reported for work but upon being informed that the black employees had walked out followed. The employees proceeded to the local SCLC office, where they conferred with Executive Director Tyrone Brooks. There they compiled a list of grievances and decided to strike the store. Both Hosea Williams, president, and Brooks cautioned them that their conduct must be nonviolent. The following Monday, August 7, a picket line was thrown around the customer entrance and parcel pickup area of the store. The list of grievances was printed and handed out to customers by the pickets. The print stated as follows: WE ARE NOT BUYING FROM WINN DIXIE 1. Winn Dixie Is Not An Equal Opportunity Employ- er A. Hiring nor promotions are equal for black and white, B. No black managers C. No black head checkers their immediate family, while blacks are not H. White part-time employees advance over full- time black employees I. Blacks required to carry a heavier workload than whites with same titles J. Blacks are denied equal training as whites with same title K. Unqualified whites are hired over qualified, experienced blacks II. Better Working Conditions: A. All code 7 must be given help in picking up and moving heavy boxes B. Only one checker should be assigned to and allowed to operate a specific register during the course of her shift. During lunch periods, breaks or any time assigned checkers leave their register, the head checker should count cash and read tape before assigning relief checker to register. C. Winn Dixie will not pay adequate help to clean and sanitize the meat department after heavy work days like Saturdays and holidays III. More and Better Fringe Benefits: A. Winn Dixie employees receive no emergency leave with pay, not even in cases where there is,death in the immediate family B. No vacation with pay is given until the employ- ee has worked more than one year. When the employee is hired shortly after the vacation period ends, the employee has to work a year to qualify for vacation leave with pay and then work until the next vacation period before being granted any actual paid vacation. Under this procedure, an employee may have to work, 20 to 22 months before he or she can take a paid vacation. C. Winn Dixie does not give raises every six months as promised D. Winn Dixie does not publicize its program for employee stock ownership to its employees E. Winn Dixie does not recognize the birthday of the late Dr. Martin Luther King, Jr. as a legal holiday F. Several Winn Dixie employees with more than one year of satisfactory service did not qualify for a dimes sick leave pay after being hospitalized or confined to bed by a licensed physician G. Winn Dixie does not have an adequate insur- ance program for employees H. Winn Dixie hires and keeps white supervisors who call black employees NIGGERS 1. White customers are treated with much more respect and courtesy than black customers by manage- rial personnel Signs were carried stating "Winn Dixie has a prejudiced manager"; "Winn Dixie, we want black managers, assist- -1 Except where indicated, the facts are based on stipulated or undisputed differences on the basis of my impression of the comparative accuracy of documentary evidence and undisputed mutually consistent corroborative the witnesses' memories and the logical probabilities. testimony- Where accounts differ as to the particulars, I have resolved such 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ant managers, head cashiers 'and market managers"; "Winn Dixie is a racist"; and "Winn Dixie, this is where the Beef begins." The above-named employees picketed daily, occasionally joined by others.2 The store continued to operate. 2. Picket line misconduct by Gavin and Penn No evidence was presented of any misconduct by McClady, and I find there was none. The Respondent's witnesses testified to alleged miscon- duct by Gavin and Penn, which they denied, during the first week of picketing. In resolving the credibility issues, I have taken into consideration the fact that Rev. Williams and Tyrone Brooks had cautioned the strikers against engaging in violence, and that Rev. Williams visited the scene on occasion and observed none. However, there is no contention and no evidence that either of these two men were present on any of the occasions discussed below. Security Agent Jack Carter and Security Manager George McLemore: On Friday, August 11, pickets intimi- dated a customer and his wife who were attempting to load groceries into their station wagon in the pickup lane, surrounding their car while Gavin and Penn used abusive language toward them, telling the customer they had his tag number and asking how he would like to have an ass whipping. Gavin and Penn conceded the authenticity of photographs of this incident introduced in evidence by the Respondent. However, they denied using abusive language and contended that the photographs only show pickets gathered around the car, and that nothing else happened. I discredit this testimony as contrary to the probabilities, particularly in view of the photographs showing pickets surrounding the car in what appears to be an intimidating manner, some of them, including Penn, not merely looking on, as he testified, but obviously speaking; in view, further, of testimony by McClady, Gavin, and Penn conceding that customers were prevented from driving out of the pickup area and that foul language was used by the pickets on occasion; and another photograph, also conceded by Gavin to be authentic, taken the same day and showing him in a belligerent posture raising a clenched fist from the parcel pickup area toward the store front. Security Agent Carter: On the same day, an unidentified picket struck the driver of a white ` Ford Mustang attempting to exit from the pickup`'area after loading groceries. The driver jumped out, "a slight altercation" took place, half a dozen pickets converged and cursed the driver while Gavin, Penn, and other pickets struck the car with their fists. I credit this testimony for the above reasons, and because I consider Gavin's testimony, that he did not remember this incident and Penn's testimony that all he remembered was a customer getting, out of a white Mustang and chasing one of the other pickets, as efforts to avoid damaging admissions. Assistant Manager Carroll Prosser and Security Agent Robert Parker: Also on Friday, August 11, the produce manager of another store drove to the rear of the Steward Avenue store where he and Prosser prepared to load some lettuce into the trunk of the produce manager's car for transfer to the other store. Gavin and another picket approached, Gavin carrying a belt wrapped around his hand with a large buckle hanging from it. Gavin slammed the trunk closed, and told them he would not permit them to transfer the merchandise. Prosser thereupon returned to the store, telling the produce manager to leave, as he would not have a chance to load the merchandise. I do not credit Gavin's version to the effect that he neither was carrying a belt or slammed the trunk closed, but merely told Prosser, "You all can't load that stuff. Don't do that," and told Prosser to "go ask the store manager"; and that Prosser did ask the manager, and the trunk was not -loaded. I note that Gavin admitted that upon occasion he carried a belt in the manner described by Prosser and Parker. I find incredible Gavin's further statement that he did so only in the presence of pickets, as that would have been pointless. Carter testified credibly and without dispute,that later that same evening he escorted a customer to his car at his request, and Penn told the customer on the way that they had his tag number and called him a "son-of-a-bitch." Security Manager McLemore credibly testified to an event which occurred on the following day, Saturday, August 12, about 8:45 a.m. which was also recorded by photographs. McLemore testified that about that time Penn arrived in his automobile, parked adjacent to the pickup lane, and got out. A bread truck drove in at that point and parked near a corner of the building. Penn removed a belt from his trousers, wrapped it around his right hand, and, carrying leaflets of the strikers' demands in his left hand, walked around the corner of the building to the driver's side of the truck. As Penn returned, the bread truck departed without making a delivery. A group of black customers arrived at that time, and Penn walked out to the parking lot towards them, still carrying the leaflets in his left hand, and the belt, which was about 1 1/2 to 2 inches wide, wrapped around his right hand and dangling 1 1 /2 to 2 feet, with a 2 1/2- or 3- inch wide buckle at the end. Store Manager McGarity also credibly testified that on one occasion during the week he observed a milk truck arrive; the route man engaged in conversation with Gavin and Penn; and the route man then informed McGarity he could not deliver milk because "they had threatened to tear up his truck, if he did." On another occasion, McGarity continued, a dairy route man was unloading in front of the store when Gavin and Penn took off their belts, wrapped them around their fists "so that the buckle would be on top," and stood and looked at the route man. Although the route man continued to unload, McGarity "didn't think that it was worth anybody getting hurt," and, although the route man protested, told him to leave. Penn remembered the bread truck coming that Saturday morning but denied walking up to or speaking to the driver, and denied intimidating other delivery men. With respect to the photographs, Penn testified they only show him after he got a belt out of his car to put around his pants, and walking out to give a leaflet to a black customer whom he asked, "Please don't shop at Winn-Dixie." 2 Although employees of the Respondent's Store No. 1852 on Campbell- involved in this proceeding. ton Road, Atlanta, also participated to some extent, none of them is WINN-DIXIE ATLANTA 293 Although- he still had -the belt in his hand, he said, he had no intention of hitting the customer. He, testified that he put the belt in his pants after he, spoke,to the customer, and that this was the only time he carried a belt. I find Penn's testimony here totally unbelievable. Penn's appearance at the hearing and in the photographs stamps him as a young man who dresses himself with,care to create an impression to suit the occasion. That he was carrying that belt solely because he had not finished dressing that morning is beyond belief. Moreover, the way he carried it converted it from an article of clothing into a dangerous weapon which would intimidate any unarmed person. Assistant Manager McGarity, Security Agent Parker, and Gavin testified regarding a fist fight early Saturday afternoon between two white bagboys and some of the pickets, in which the bagboys got the worst of it, and which led to the arrest of Gavin and other pickets. Based on a synthesis of the testimony of all_ the witnesses and my estimate of their comparative accuracy and what was most likely in all the circumstances, I find that one of the pickets told one of the bagboys there would not be any groceries put into the car, he was loading, and shut the car door. After a quick exchange of words, not detailed in the record, between pickets and the two bagboys, one of the pickets swung at a bagboy and Gavin knocked him down. McGarity arrived on the scene and called or pulled the bagboys into the store'. Gavin's wife followed, cursing one of the bagboys. Gavin entered the store and during the ensuing commotion called ablack customer -an Oreo cookie. Gavin then led his wife-out of the store. None of the witnesses attributed any misconduct in connection with the aforedescribed incident to Penn. Penn testified, however, that he was arrested the same afternoon, and, in the absence of any contradictory testimony, I credit him to the effect that a man drove into the pickup lane, touching McClady with his car bumper. Penn told him not to touch her again.- The man' told Penn "to shut up before he be down [sic] and beat me," and Penn replied he would beat the man "down to the ground." The man went for the police, who arrested Penn. At 4 p.m. August 12, 1972, the Superior Court of Fulton County, Georgia, issued a temporary order restraining Metro Atlanta DeKalb SCLC, Gavin, McClady, Penn, and others from engaging in various kinds of misconduct in connection with the picketing. 3. The negotiations At the request of SCLC, the Respondent's vice president, M. W. Merritt, agreed to meet with the black employees. Two meetings were held at the Respondent's offices in Atlanta. The first meeting, held August 15, was attended by Merritt and another official from Jacksonville otherwise unidentified, representing the Respondent. Rev. Williams, Brooks, SCLC Attorney David Crossland, Gavin, McCla- dy, and other black Winn-Dixie employees represented the strikers- Rev. Williams read the following list of demands3 for the Respondent's study, evaluation, and written reply, and each item was explained by the employees present. 1. WE DEMAND any and all Criminal or Civil charges be dropped against any and all employees arising out of the Winn-Dixie, racial labor dispute. 2. WE DEMAND all persons involved in trying to bring about. equal and adequate job opportunities and promotional opportunities for all Winn-Dixie employ- ees regardless of race, creed or,color by participating in the picketing or boycotting of Winn-Dixie stores be reinstated, to their previous positions without loss of pay during the racial labor dispute, -and with the same working hours and pay rate held prior to the racial labor dispute- 3. WE DEMAND that any and all mention of employee participation in bringing about equal job opportunities and promotional opportunities for all Winn-Dixie employees regarding of race, creed or color by participating in the picketing and boycotting of Winn-Dixie be removed from their personnel file completely without exceptions. 4. WE DEMAND that no-supervisor or manageri- al personnel be allowed to harrass, intimidate or punish any employee in any way whatsoever for participating in bringing about equal job and promotional opportu- nities for all Winn-Dixie employees regardless of race, creed or color. 5. WE DEMAND and immediate advancement of qualified `blacks in all phases of employment where blacks have been refused 'promotions due 'to racism, and in all phases of employment Winn-Dixie has kept lily-white. ' 6. WE DEMAND the immediate hiring of black store managers, assistant managers, and head cashiers at Winn-Dixie stores in Metro Atlanta. 7. WE DEMAND the immediate hiring and placement of blacks in personnel and front office positions: ` 8. WE DEMAND equal pay for all employees. 9. WE DEMAND equal work loads for blacks and whites. 10. WE DEMAND equal part time hours for all employees. 11. WE DEMAND an adequate Insurance Policy for all employees. 12. WE DEMAND that specific mandatory cloth- ing required by Winn-Dixie be provided to employees by Winn-Dixie. 13. WE DEMAND that blacks be allowed to participate in the training programs. 14. WE DEMAND employee participation in the Profit Sharing Program within three (3) years. 15. WE DEMAND the establishment of a credit union for employees with a minimum of one years service. 16. WE DEMAND that blacks be allowed to 3 The document listing these demands also contains at the end thereof several other requests which were not, however, conditions for ending the strike, as follows: "Additional items. Wants black on board of directors Advertising media will , be increased. Banking will be considered and investigated. Application for people with one-time jail term will be personally considered by M.W.M. or R.J.C. before turned down Negro fund for local colleges." 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receive phone calls other than emergency calls just as whites. 17. WE DEMAND equal enforcement of company Policy. 18. WE DEMAND equal allotment of time for breaks and lunch. 19. WE DEMAND that women not be placed on the code 7 jobs because of the heavy merchandise that this person is required to handle. 20. WE DEMAND that Winn-Dixie post publicly its program for stock ownership by employees. 21. WE DEMAND that Winn-Dixie post its pay scale publicly. 22. WE DEMAND that Winn-Dixie cease discrim- ination against blacks in its hiring practices. 23.. WE DEMAND that Winn-Dixie show more respect for Black customers. 24. WE DEMAND that blacks and whites who are doing the same work be given the same pay for the jobs. 25. WE DEMAND that Winn-Dixie provide extra pay for extra work that is assigned to employees. 26. WE DEMAND the replacement of the grocery manager, market manager, and head cashier at the Stewart Ave. store and Campbellton Rd. store because of their racist attitude toward black workers and customers. 27. WE DEMAND that Winn-Dixie give raises to employees every six (6) months as employees are promised at the beginning of employment without regard to race, creed or color. 28. WE DEMAND Enforcement of Company Policy that prohibits the hiring of more than one person from that person's immediate, family. 29. WE DEMAND better overall working condi- tions for black employees. 30. WE DEMAND that January 15th, the birthday of the late Dr. Martin Luther King, Jr. become a paid employee holiday. 31. WE DEMAND that the location of the personnel offices and the notices of openings be placed on bulletin boards, putting the boards in conspicuous places. 32. WE DEMAND an explanation of race nota- tion on payroll sheets. [sic] The parties were in agreement as to many of these demands which were said to reflect present company policy. The employees, however, were of the view that such policies were not being properly implemented and wanted the Respondent to conduct a 'study of their implementa- tion. There was also no agreement to the following items: (1) The employees wanted the Company to have the temporary injunction, which it had obtained, vacated; and the criminal charges, instituted by persons other than the Respondent apparently in connection with the alleged picket line misconduct, dropped. The Respondent refused both these demands. (2) Although the Respondent was willing to reinstate most of the picketing employees, it indicated they might be transferred to other locations; the employees wished to be reinstated to their former posi- tions, and transfers, if any, given to the managers who were at fault. The Respondent refused to take back Gavin and Penn, on grounds of misconduct , as well as McClady and Partridge regarding whom no reason was given. The Respondent also refused the demand for backpay for the period of the strike. The second meeting was held on the following day. All those named as present at the first meeting were also present at the second . At the opening of the meeting, the Respondent expressed its willingness to reinstate McClady and Partridge. It also agreed to look ' into the criminal charges` but expressed doubt that anything could be done because they had been brought by individuals. The Respondent adhered to the possibility that some strikers might be transferred, but at the end of the meeting it agreed to reconsider its refusal to reinstate Gavin and Penn. After the second meeting Merritt informed Rev. Wil- liams by telephone that the Respondent was willing to reinstate all strikers . The Respondent delivered to SCLC its official written response to the demands presented at the first meeting. This document is dated August 18, 1972: 1. No criminal charges have been brought by Winn-Dixie. Disolving of Temporary Restraining Order is subject to agreement between SCLC and Winn-Dixie. 2. 3. 4. Winn-Dixie agrees to reinstate, at the same rate of pay, all employees who voluntarily walked off job at two stores, Stewart Avenue and Campbellton Road, on or after August 4, 1972. There will be no back pay for time off job. No personnel folder will be flagged with notice of participation by any employee in picketing and supervisory and managerial personnel will not intimidate or otherwise punish reinstated employees for picketing. 5. Winn-Dixie intends to comply with its company policy "to offer employment opportunity, training and promotion to qualified personnel on the basis of qualifications and merit without regard to race, color, religion, sex or national origin. Supervisory personnel shall be expected to take appropriate action to carry out this policy." Winn-Dixie will recommunicate this policy to all lower echelon supervisory personnel and management will continue to use best efforts to assure compliance. 6. 7. Winn-Dixie does not hire Store Managers. Winn-Dixie's policy is to make promotions to manage- rial positions from within its own work force. More black managers, assistant managers and department heads will be qualified and promoted as they complete current training programs . Within 120 days we will have completed training and promoted one black Store Manager, two (2) black Assistant managers and two (2) head cashiers. 8. We have pay rate schedules established for various job classifications based on experience and length of service. We will pay all employees on this basis without discrimination. Where an employee is not being paid according to the rate schedule , the discre- pancy will be corrected. (Also see paragraphs 24 and 27.) 9. Job assignments, work loads and schedules, WINN-DIXIE ATLANTA 295 including breaks and lunch hours, will be assigned by job classifications to all employees on a fair and impartial basis. Clean up details specifically shall be rotated. 10. See 9 above. 11. We have insurance coverage for all blacks and whites on impartial basis now. No change in insurance program., 12. Winn-Dixie intends only to furnish uniforms to cashiers in accordance with past practices. Any change in this policy"will apply to all personnel on a fair and impartial basis. 13. See 5 above. 14. No. 15. Not at this time. 16. Restrictions on telephone messages will be applied on a fair and equal basis and will be the same for all employees. 17. All company policies shall be enforced on a fair and impartial basis with all employees. 18, See 9 above. 19. The demand was incorrect and was changed. All Code 7 employees shall be given assistance as necessary with the large repack boxes. 20. Winn-Dixie promises to post notices of all stock offerings under its employee stock purchase plan. The sole purpose of this plan is to encourage stock ownership by all employees. Our goal is 100% employee participation. 21. Supervisors will explain to any employee requesting it the pay scale for that employee's job classification. 22. See 5 above. 23. We will require that all our employees, both black and white, show total respect for all our customers, both black and white. 24. See 8 above. 25. See 9 above. 26. No. Personnel replacements will be considered, how-ever, if further investigation by company indicates violations of company policies or poor management practices on the part of supervisory personnel at the two stores, Stewart Avenue and Campbellton Road, Investigation will be completed and whatever action that is to be taken will have been taken within 21 days. 27. See 8 above. 28. Company policy is: "Assignment of Employees from Same Family . . . Members of one family as a matter of policy should not work together in the same store. It is recognized, however, that exceptions will occur in certain situations, especially in small towns." Management will investigate to ascertain present compliance with this policy, and will enforce on a fair and impartial basis, recognizing there will be excep- tions. No exceptions will be made, however, at any time on basis of race. Exceptions must be approved by Division Manager or Retail Operations Superintend- ent. 29. Winn-Dixie will improve working conditions where possible for all employees (see policies above.) Clean up details will be rotated. 30. The company recognizes only legal holidays. 31. Qualified personnel already , in a store shall be considered for job openings within that store, other than managerial positions , prior to qualified personnel being transferred in from another store. 32. Not applicable. [sic] Rev. Williams dispatched the employees' answer to Merritt in a letter dated August 20, 1972: In a meeting over the weekend the striking black employees of Winn-Dixie voted unanimously to reject the answer to their demands submitted by you through me. The rejection was based upon your refusal to agree on back pay. The striking employees take the position that they were driven out of their jobs by racism and had Winn-Dixie implemented their established person- nel and policy procedures the strike would not have been necessary. The following is a list of positions taken by the striking employees on various points: 1. Even though Winn-Dixie has brought no charges against employees, the activities that brought forth the charges were on Winn-Dixie property and arising out of the Winn-Dixie labor dispute. Therefore, a Winn- Dixie lawyer should appear in court with employees explaining that' this was a labor dispute between employees and Winn-Dixie, and that the company wishes to have all charges dropped. 2. No employee shall return to work until he is guaranteed full pay from the date of departure to the date of return. 5. We do not want to know what Winn-Dixie's intentions are. We demand immediate advancement of qualified blacks in all phases of employment where blacks have been refused promotions due to racism, and in all phases of employment. 11. Even though there may be no changes in this policy we demand that it be evaluated. 16. If not at this time, we demand to know at what specific time. 26. We demand an immediate investigation of management to be completed within twenty-one (21) days of our return to work. Merritt responded to this communication in the follow- ing letter dated August 22, 1972: After our negotiations last week and Winn-Dixie's agreement to reinstate employees Gavin and Penn, I was surprised and disappointed to receive your letter of August 20, 1972, demanding further concessions by our company. We wanted to settle our difficulties amicably and believed that an agreement had been reached with you. The following are specific comments on the list of positions taken by striking employees as outlined in your letter of August 20th: Item 5 was intended as a statement of our company policy. Further, as affirmative evidence of our committ- ment to implement this policy immediately, we agreed specifically in items 6 and 7 to promote one black store manager, two assistant managers and two head cashiers within 120 days. Further, we have promised to 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD implement our nondiscrimination policy immediately in all phases of employment. With respect to item 11, we will re-evaluate our insurance program:' Any deficiencies in dealing with individual grievances will be 'corrected immediately as promised in our discussions with you. - With respect to item 15, our companyhas considered the possibility of establishing a credit union from time to time in the past. This matter will be brought to our management again for reconsideration, however, no specific time can or will be set for establishing a credit union within our organization. With respect to item 26, we previously agreed to your demand. Investigation will be completed within 21 days. With respect to item 2, as previously discussed, we will reinstate all striking black employees without loss of service benefits, but we cannot agree to payment of back wages for striking employees while they were off the job. I believe you, recognize the difficulties this would create in future dealings with our employees. I believe all of our grievances could have been negotiated without the necessity of a strike. If any of our employees strike, they must be willing to accept the consequences of their actions. With respect to item 1, as you recognize, Winn-Dixie cannot agree to drop criminal charges brought against the striking employees since none were brought by our company. In the interest of amicable settlement of our differences, however, we will determine what legal action, if any, can be taken by our company. If we can intervene in the criminal proceedings without jeopard- izing our relationship with the courts or law enforce- ment agencies in Metropolitan Atlanta, we will consider the possibility of such intervention. Our decision to determine the possible `legal alternatives depends, however, upon your prior agreement with our response to all other items which have been the subject of negotiations between us. I think these further agreements by our company evidence our sincere desire to resolve our differences with you. It is our hope that your organization will recognize our affirmative action program to assure non-discrimi- nation policies within our organization. Hopefully with these further assurances by Winn-Dixie we can reach final settlement and the Temporary Restraining Order now in effect can be disolved by our company without further court proceedings. There were several telephone communications between Rev. Williams and Merritt after this, but no agreement was reached. The question of transfers of strikers appears to have been resolved, as all the General, Counsel's witnesses agreed that the primary reason for the employees' refusal to return to work was the Respondent's insistence that no backpay would be paid covering the time spent striking. 4. The terminations Merritt dispatched the following identical letters to McClady (misspelled McCrady) dated August 29, and to Gavin dated August 30, 1972: I regret. our discussions with the Reverend Hosea L. Williams have not been productive. Consequently, you are requested to return to work on or before Tuesday, September 5,19721,8:00 A.M. Because you voluntarily walked off the job as a striking employee, the company will be unable to reimburse you for back pay for the time you were not at work. , If you do not return to work on or before September 5, 1972, as requested, your services as an employee of Winn-Dixie Atlanta, Inc. are terminated. Neither Gavin or McClady responded. Such a letter was also dispatched to Penn at an address from which he had moved in December 1971, although he had informed the Respondent of his new address about 2 weeks or longer after he moved. Penn never received the letter, but other strikers told him about the letters, which were discussed with Brooks, the strikers being of the view"that we were still picketing and they could not send us a letter like that," as McClady testified. On September 1, 1972, the Superior Court of Fulton County issued a consent order affirming the right to engage in peaceful informational picketing and restraining misconduct. - Penn ceased picketing September 10 or 11 but no reason therefor appears in the record. McClady stopped picketing either on September 27 or October 4 or 5 because she was having problems with her pregnancy and her son was injured and she had to stay home with him. Gavin ceased picketing' in late October because he was working part time. 5. The reinstatement requests On October 23, Tyrone Brooks, upon the advice of SCLC Attorney Crossland, drew up a letter addressed to M. W. Merritt for the signatures of the strikers. After obtaining Gavin's approval of the letter, Brooks met with Gavin, McClady, and other strikers. Brooks testified that he explained the origin of the-letter, and that it informed the Company that "each and every employee involved in that labor dispute wanted to return to work." Gavin, McClady, Partridge, Gary, Pyron, and one Ernestine Greene read and signed, the letter. Penn did not attend the meeting but read and signed the letter the following .day. Gavin mailed it to Merritt 3 days later.4 The letter stated: This letter is to inform you that we, the Black Employees of Winn Dixie, Inc. for Better Working Conditions, and Equal Opportunity in Employment, still seek reinstatement to our jobs with the Winn Dixie Corporation. In seeking re-employment to the positions that we previously held with Winn Dixie, we are demanding that all persons involved in trying to bring about equal and adequate job opportunities and promotional 4 The Respondent's counsel stated at the hearing that thezRespondent office but that Vice President Merritt had searched his files and been unable received a copy of this letter at its Jacksonville corporation headquarters to locate the original of which he had no knowledge. Merritt did not testify WINN-DDUE ATLANTA 297 opportunities for all Winn Dixie employees regardless of race, creed, or color by participating in the boycotting and picketing of Winn Dixie stores, be immediately reinstated to their previous positions. ,We sincerely feel that supervisors and managerial personnel should not be allowed to harrass, intimidate, or punish any of us in any way whatsoever due to our participation in the racial labor dispute. An immediate reply to this communication is requested. [sic] Gavin testified that at the time he received the Respon- dent'-s termination letter of August 30, it was his position that he deserved backpay and he would not return to work for Winn-Dixie without it; when he signed the October 23 letter to Merritt, he understood it to mean he was still seeking reinstatement. under the same conditions he had always meant; and that he has never changed his mind and he still feels he deserves backpay for the time he was striking. Theodus Penn testified that he concurred in the employees' demand for backpay while striking and he still feels that way. He testified that he will never go back to the job, and that that was his position when he signed the October 23 letter. McClady testified that, at this meeting with Brooks, he asked what the employees wanted to do, and she "took the position that whatever the rest of them wanted to do I would do too because I couldn't picket too much at that time because I was pregnant." The others wanted to continue to strike, she said. McClady also testified that although she stated, in an affidavit she gave to a Board agent January 23, 1973, that, she did not desire reinstatement, she was pregnant at the- time and could not have returned to work; that she now wants to be reinstated and "never had any other thing in my mind." McClady was pregnant at the time of the hearing, and the General Counsel stated she expected the birth of a child on or about April 4, 1973. Store Manager McGarity, Market Manager Meredith, and Assistant Manager Prosser were all transferred to other stores after the above events. B. Conclusions 1 The strike: The walkout, strike, and picketing by Steward Avenue employees, including McClady, Gavin, and Penn, were clearly of a concerted nature. That their strike was designed to improve wages, hours, and working conditions is established by the lists of demands, which included various subjects such as promotion, hiring, pay, workload, hours, clothing, training, profit sharing, tele- phone - privileges, job assignment, and holidays. The Respondent does not contest the General Counsel's allegation that the strike was concerted activity protected by Section -7 of the Act, and I so find.5 I also find that as a result of the meetings and subsequent communications between the Respondent and the strikers and their representatives, the primary issue for which the employees 5 It is well established that such conduct is not deprived of the Act's protection because the strikers' demands were not presented to their employer before the walkout; because fewer than a majority of the employees participated (Imco Poultry, Division of International Multifoods Corporation, 202 NLRB No. 44), or because all the strikers were black and their demands were designed to improve the wages, hours, and working continued to picket after August 22 was their demand for backpay for the time they were striking. Although the Board does not award backpay for strike time, there was nothing unlawful about holding out for such a demand, which was economic in nature, as a condition for terminating the strike which was from its inception an economic strikes 2 The terminations: With regard to the Respondent's termination letters of August 29 and 30, based on the plain words of the letters and the Respondent's conduct throughout its dealing with the strikers, I find that the purpose and effect thereof was to threaten the strikers that if they did not give up their demand for backpay and their strike and return to work, they would be terminated; and, in view of the strikers' failure to respond to the letters, their continued picketing, and the absence of any contrary contention by the Respondent, I also find that they were in fact terminated on September 5, 1972, for the aforesaid reasons. 3 The alleged replacements: The Respondent contends that McClady, Gavin, and `Penn had been permanently replaced before their September 5 terminations took effect. McClady: McClady credibly testified that she was a Code 7 cashier and shelf-stocker, and was stocking shelves at the time of the walkout., The Respondent presented no evidence regarding a ^ replacement for her shelf-stocking duties, and I discredit its evidence that she was a full-time cashier. I therefore find no merit in the Respondent's contention that McClady was replaced by either B. Wilson or A. Palmer, who were hired as new full-time cashiers during the week ending-September 2. Moreover, there were two full-time black cashiers, Partridge and Pryor, who walked out August 4, and who have neither returned to work nor been replaced. Wilson and Palmer doubtless replaced them. In any event, I find, based on the testimony of McGarity, who hired the two new full-time cashiers named above, as well as two new part-time cashiers, that none of the four was considered to be a permanent replacement for a striker. He testified that he told each of the new hires at the time of hire, I explained the circumstances to her, that we were being picketed and that the employees-that walked out could or might come back to work and it might be that we would have to transfer her to another, store in case they did. - Gavin: Gavin was the only journeyman meatcutter who struck August 4. McGarity testified that during the week ending August 12, R. Lundsford, a, meatcutter, "was brought in" by transfer "to get the job done in the meat department." Meat Manager Meredith said Lundsford "came in because we were short of meatcutters." Lunds- ford worked 2 weeks at the store and left Respondent's employ August 26 to take a job elsewhere. An additional journeyman meatcutter, Heatherly, worked at the store 1 week, ending August 26. McGarity -testified that Heatherly was "a transfer that we needed in the meat department," conditions of black employees. Jubilee Manufacturing Company, 202 NLRB No. 2; Washington State Service Employees State Council No 18, 188 NLRB 957. 6 Cf. International Van lanes, 177 NLRB 353, 355, enfd. in this respect 448 F2d 905, 910 (C.A 9, 1971), reversed on other grounds 409 U S. 48 (1972), In. 4; The Cooper Thermometer Company, 154 NLRB 502, In 16. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that "he didn't stay except for one week" when "he was transferred back to another store." J. Brown, a meatcutter in the Respondent's employ since June 22, 1972, was transferred to the store September 2, on which day he clocked 5.25 hours, and thereafter worked full time. Although the Respondent contends that both Lundsford and Brown were permanently transferred, and that Brown permanently replaced Gavin,'the above, evidence, in my opinion, does not indicate that either Lundsford's or Brown's transfers stood on footings different from that of Heatherly's at the time they, were made, and Heatherly's was not, and is not contended to be, permanent. Penn: Penn was one of two full-time clerks in the produce department, and the only one who struck. No replacement was made at once, and the other full-time clerk, Forrest, quit during the week ending August 19. The Respondent contends in its brief that Penn was permanent- ly replaced by "either K. Walbert or E. Preston." During the week ending August 19, K. Walbert and W. Bullard were transferred in. After that, however, the Respondent offered three times before its termination letter to reinstate Penn. McGarity testified he treated the Walbert transfer no different from any other transfer, but he did not testify as to how he treated the simultaneous Bullard transfer which the Respondent contends in its brief was temporary. Both these men worked at the store until September 9, when their names disappear from the store roll, without explanation. E. Preston has been employed by the Respondent since 1967. After filling in for the meatwrap- per who was on vacation, "he was put in" produce during the week ending September 2, McGarity testified, where he worked for that 1 week only. There is no evidence as to the circumstances of his transfer into produce nor of his departure a week later. Based on the absence of any direct testimony that any of the above-discussed hirees or transferees were intended to be and were told that they were permanent strike replacements, the evidence recited above indicating that none of the alleged replacements were in fact permanent, and, most important, the Respondent's offers to reinstate Penn after his alleged permanent replacement and its assurances in its letter to McClady, Gavin, and Penn that their jobs would be held for them until September 5 (if they would abandon their strike and return) convinces me, and I find, that these three strikers had not been permanently replaced at the time of their discharges. In all the circumstances, therefore, I conclude that by threatening to discharge, and by discharging, McClady, Gavin, and Penn on September 5, 1972, who at that time were engaged in a lawful economic strike and who had not been permanently replaced, the Respondent violated Section 8(a)(1) of the Act and converted the strike into an unfair labor practice strike.? As unfair labor practice strikers, these employees are entitled to reinstatement upon their unconditional application absent unusual circum- stances.8 4 The misconduct: I find no merit in the Respondent's contention that Gavin and Penn are not entitled to reinstatement because of misconduct on the picket line. Without determining whether, under other circumstances, the misconduct which I have found above occurred would justify a refusal to reinstate Gavin and Penn, I find that the Respondent condoned their conduct by its agreement, after its second meeting with the strikers' representatives, to reinstate all the strikers; its repetition of this agreement and additional promise not to preserve any record or permit any retaliation against reinstated strikers in its written communication of August 18; and its reaffirmation of its agreement to reinstate Gavin and Penn, by name, in its letter of August 22.9 I do not agree with the Respondent that the condonation doctrine should not be applied in this case because its offer to reinstate Gavin and Penn was rejected by their refusal to return to work, and was withdrawn by the Respondent's letters of August 30 which "were in effect a withdrawal of the offer if it was not accepted by September 5." It is well established that "After a condonation the employer may not rely upon prior unprotected activities of employees to deny reinstatement to, or otherwise to discriminate against, them." to That principle is peculiarly applicable here, where the Respondent's purported withdrawal of its reinstate- ment offer was a letter which has been found above to constitute an unfair labor practice. Nor do I agree with the Respondent's further contention that application of the condonation doctrine would discourage employers from making any future good-faith offers to settle disputes with black employees striking in protest against alleged racial discrimination. I cannot see that holding the Respondent to its expressed intent to overlook misconduct would discourage employers from making offers to settle disputes of this kind any more than application of the condonation doctrine discourages the settlement of any other kind of labor dispute. Indeed, the doctrine is premised on its effectuation of a primary purpose of the Act the furtherance of industrial peace and harmony. I' 5 Reinstatement: I do find merit in the Respondent's contention that the evidence does not show that these three employees have abandoned the strike and are willing to return to their jobs unconditionally. Thus, their letter dated October 23, 1972, advised the Respondent that they "still" sought reinstatement to their jobs. I cannot give credence to the testimony of Tyrone Brooks, who drafted the letter, that all the letter said was that each and every signatory "wanted to return to work," or his uncorroborated testimony that he explained its contents to them in such terms. To do so would require an inference that the word "still" was inadvertently inserted in the letter and over- looked by all three employees, each of whom read the letter before signing. Such an inference is completely unwarrant- ed, particularly in view of Gavin's testimony that he understood, and intended, the letter to mean that he was still seeking reinstatement under the same conditions as before, notably backpay for the time spent striking; Penn's testimony that he still feels that way; and McClady's 7 Metal Plating Corporation, 201 NLRB No. 28; Astro Electronics, Inc, 10 Confectionary & Tobacco Drivers and Warehousemen's Union, Local 188 NLRB 572; Hilton International Co., d/b/a San Jeronimo Hilton Hotel, 805, IBTCWA v. N LR B, 312 F.2d 108. 113 (C A. 2. 1963), Jones & 187 NLRB 947; We Painters, Inc., 176 NLRB 964. McKnight, Inc, 183 NLRB 82, enfd. 445 F.2d 97 (C.A. 7.197 1). 8 Ibrd 11 Jones & McKnight, Inc v. N L R.B., supra. 9 Sea View Industries, Inc, 127 NLRB 1402, 1437 WINN-DIXIE ATLANTA testimony that the other signers wanted to continue striking and that she went along with them. McClady's further testimony that she wants reinstatement and never had any other thing in mind indicates she has not changed her view regarding the backpay requirement 12 McClady ceased picketing only because of a sick child and problems with her pregnancy, and at one time considered that her pregnancy would have prevented her from working. I find, however, upon her entire testimony, that she has not abandoned the strike and that she is not for any reason disqualified from reinstatement upon her unconditional application. Similarly, as to Gavin, although he ceased picketing in late October to take a part-time job, I find that he has not abandoned the strike, and that he is entitled to reinstatement when he unconditionally applies. However, as to Penn, I find that his testimony that his position at the time he signed the October 23 letter was that he would never go back to that job and that he has never changed his mind, and his flat statement, "I will never go back," was an unequivocal assertion that he has perma- nently severed his employment relationship, which ab- solves the Respondent of any obligation to offer him reinstatement. 13 REMEDY In order to effectuate the policies of the Act, I recommend that the Respondent be ordered to cease and desist from the unfair labor practices found and to take certain affirmative action. In view of the nature of the unfair labor practices, the Respondent will be ordered to cease and desist from infringing in any manner on its employees' rights guaranteed by the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (CA. 4, 1941). Having found that Willena McClady and Isiah Gavin became unfair labor practice strikers on and after September 5, 1972, I shall recommend that upon their unconditional application the Respondent offer them immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, dismissing if necessary any person hired since September 5 to replace them. I also recommend that the Respondent make McClady and Gavin whole for any loss of earnings they may suffer as the result of the Respon- dent's failure to reinstate them in the above-described manner, by paying each of them a sum of money equal to that which each would have earned as wages, plus interest, from 5 days after the date on which each unconditionally applies for reinstatement to the date of the Respondent's offer of reinstatement, less her or his net earnings during such period. Backpay and interest are to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 14 299 Winn-Dixie Atlanta Inc., Atlanta, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to discharge, or discharging, employees because they engage in protected concerted activity. (b) In any other manner interfering with, restraining, or coercing employees in their, exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon their unconditional application, offer to Willena McClady and Isiah Gavin immediate and full reinstatement and make them whole in the manner set forth in the Remedy section of this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll and social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due. (c) Post at its store No. 1874 on Steward Avenue, Atlanta, Georgia, copies of the attached notice marked "Appendex." 15 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by the Respondent's representative, shall be posted by the Respondent 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. (d) Notify the Regional Director of Region 10, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith. 12 See Local No 380, International Union, Allied Industrial Workers of America, AFL-CIO v. N.LR !I, 401 F 2d 128 (CA 7); Northeast Products Co., Inc., 147 NLRB 675; The National Automatic Products Company, 128 NLRB 672 13 Cf. S & M Manufacturing Co., 165 NLRB 663. 14 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 15 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to discharge, or discharge, our employees because they engage in protected concerted activity. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in their exercise of 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights guaranteed by Section 7 of the National Labor Relations Act, as amended. WE WILL, upon their unconditional application, offer Willena McClady and Isiah Gavin immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privi- leges, and dismiss if necessary any persons hired since September 5, 1972, to replace them_ WE WILL make whole Willena McClady and Isiah Gavin for any loss of earnings they may have suffered as the result of our failure to reinstate them in the manner ordered by the Board. Dated By WINN-DIXIE ATLANTA, INC. (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Peachtree Building Room 701, 730 Peachtree Street NE., Atlanta, Georgia 30308, Telephone 404-526-5760.