S. H. Lynch and Co., Inc.

National Labor Relations Board - Board Decisions

Sep 25, 1967

167 N.L.R.B. 554 (N.L.R.B. 1967)

554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. H. Lynch and Company, Inc. and Elmer Hensley,
an Individual d/b/a Elmer 's Drive-In , Elmer's
Sportsman Grocery and Jay's Liquor and
International Union of United Brewery , Flour,
Cereal , Soft Drink and Distillery Workers of
America , AFL-CIO. Cases 16-CA-2639 and
16-CA-2646-2, 3, and 4
September 25, 1967
DECISION AND ORDER
On March 1, 1967, Trial Examiner Robert Cohn,
issued his Decision in the above-entitled proceed-
ing, finding that the Respondents had engaged in
and were engaging in certain unfair labor practices
and recommending that they cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondents filed combined excep-
tions to the Decision together with a combined sup-
porting brief.
The National Labor Relations 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 Deci-
sion, the exceptions and brief, and the entire record
in this case, and finds merit in certain of the
Respondent's exceptions. Accordingly, the Board'
adopts the findings of the Trial Examiner only to
the extent consistent herewith.
Respondent S. H. Lynch and Company, Inc.,
hereinafter referred to as Lynch, is engaged in the
business of wholesaling and distributing beer to
various customers, including Respondent Elmer
Hensley, hereinafter called Hensley. These parties
have a normal business relationship with each other
and are not contractually or otherwise allied in any
way whatsoever. Lynch employs driver-salesmen
who, in addition to a salary, are paid a commission
based upon the amount of beer sold and delivered.
Until March 18, 1966, when some of Lynch's
driver-salesmen engaged in a strike, McClain, one
of the striking employees, had regularly serviced
three retail beer and wine stores owned by Hensley.
Shortly thereafter, Hensley learned of the strike,
and of the possible curtailment of beer deliveries to
his stores because of it, from one of Lynch's route
supervisors who was servicing one of Hensley's
stores theretofore serviced by McClain. Within 24
hours thereafter, Hensley contacted Crumpley,
Lynch's general manager, and, referring to Mc-
Clain, stated that "I am not satisfied with the
present man. I don't think he'll be able to service
me like I want to be serviced, and I want a new
driver." Crumpley, acting in accordance with
Lynch's established practice and policy , which is
"to change (drivers ) and answer (the customer's)
request right immediately ," regardless of the reason
therefor , assigned a nonstriking driver-salesman to
service Hensley 's three stores.
A week later , on March 28, 1966 , when the strike
ended , McClain returned to work and was notified
by Crumpley of Hensley 's request for a different
driver . On the following day, McClain met with and
asked Hensley the reason for Hensley 's request.
According to McClain , Hensley stated that "Since
I went out on strike ... he'd rather I didn't make
him any more because he couldn 't get his deliveries
when he wanted them ." Hensley also told McClain
that the driver presently servicing Hensley ' s stores
was doing "a wonderful job" and , therefore, Hens-
ley saw no reason to change drivers . McClain has
not since serviced Hens eT y's three stores and, while
McClain has not suffered any diminution in salary,
he lost such commissions as he might have earned
by servicing these stores.
The Trial Examiner found , in effect , that Hens-
ley's request for a change in drivers , and_Lynch's
compliance therewith , were based on economic and
not discriminatory considerations in that "Hensley
wished to be assured of regular beer deliveries and
Lynch desired to please its customer ." The Trial
Examiner also found , however , that although the
record is devoid of any evidence indicating either
that Hensley or Lynch harbored any union hostility
or primarily or specifically intended to discriminate,
the Act nevertheless has been violated in that the
foreseeable consequence of replacing McClain
because he engaged in a strike gives rise to the pre-
sumption that such a discriminatory consequence
was intended by both Respondents who, thereby,
also intended to discourage membership in the
Union.
Hensley did not change McClain 's driving assign-
ment . Nor could he have done so, for he was not
McClain 's employer.In all the circumstances be-
fore us we-tad that Hensley did not discriminate
against McClain in violation of the Act. The record
clearly shows that in honoring Hensley 's request,
Lynch acted only in accordance with its established
business practice of changing drivers at customer
request and the record further shows no knowledge
by Lynch of the reason for Hensley 's request. On
the facts , we cannot ascribe either an actual or a
presumed unlawful intent to Lynch , and we shall
dismiss the complaint against Lynch as well.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
' Chairman McCulloch not participating
167 NLRB No. 70
S. H. LYNCH & CO. 555
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT COHN, Trial Examiner: This proceeding, with
all parties represented, was heard in Dallas, Texas, on
November 1, 1966,' and presents the following issues for
decision: (1) Whether certain enterprises in which one
Elmer Hensley is financially interested, constitute a sin-
gle employer, and, as such, are subject to the jurisdiction
of the National Labor Relations Board (herein the
Board);2 and (2) whether Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended (herein the
Act), was violated when Hensley (herein Respondent
Hensley), on behalf of the three named corporations,
caused the Respondent, S. H. Lynch and Company, Inc.
(herein Lynch),3 to transfer one of its drivers, Andrew
McClain, from servicing Hensley, causing an alleged
diminution in McClain's earnings.
At the hearing, all parties were afforded full opportuni-
ty to present evidence, to examine and cross-examine
witnesses, to argue orally at the close of the hearing, and
to file briefs. Oral argument was waived by all parties.
Helpful briefs have been received from counsel for all
parties, which have been duly considered.
Upon consideration of the entire record, including the
briefs filed with me, and upon my observation of the
demeanor of each witness while testifying, I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Respondent Lynch is a Texas corporation, having its
principal office and place of business at Dallas, Texas,
where it is engaged in the warehousing and distribution of
beer and related products. During an annual period, it
purchases goods in excess of $100,000, of which more
than $50,000 is shipped in interstate commerce from
points outside the State of Texas. Respondent Lynch ad-
mits that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. I so find.4
The parties stipulated that Elmer Hensley is president
of some seven corporations, each of which is organized
under the laws under the State of Texas and is engaged in
the retail business in the Dallas area. Respecting the three
retail operations primarily involved herein (Elmer's
Drive-In, Elmer's Sportsman Grocery, and Jay's Liquor),
it is stipulated that Elmer Hensley owns 100 percent of
Drive-In and Sportsman, and, with his wife, owns 50 per-
cent of Jay's Liquor, Hensley Enterprises, of which
Elmer Hensley and his wife own 99 percent of the stock,
and owns the real estate upon which Jay's Liquor'
operates its liquor business for a rental fee. Hensley and
his wife own 50 percent of the stock of the other three
retail outlets not directly involved herein.5
It is further stipulated that during the past calendar
year the corporations hereinabove referred to, in which
Hensley has an interest, in the course and conduct of
business operations, "sold and distributed products, the
combined gross revenue which exceeded $500,000."
Thus, if it is found that the said corporations constitute a
single employer within the meaning of the Act, it is clear
that the Board will assert jurisdiction under its standard
for retail enterprises."
However, Respondent Hensley vigorously argues that
each of the said corporations is separate and autonomous;
that each maintains separate bank accounts, workmen's
compensation, and unemployment compensation in-
surance policies, as well as property insurance policies;
that each files separate income and social security tax
returns; and that each has separate managers and per-
forms no services for each other. Nevertheless, it appears
that all of the books and records of each corporation are
kept at the same place; that the same clerical employees
and accountants keep the books of all the corporations
and render regular weekly reports to Hensley respecting
thereto; and that there is a supervisory person, a Mr.
Pritchard, who appears on the Industrial Cut Rate payroll
but who, on behalf of Hensley, hires the managers for
each retail outlet and, according to Hensley, "takes care
of our personnel." Moreover, as appears more fully,
infra, it was Hensley himself who, on behalf of Elmer's
Drive-In, Elmer's Sportsman Grocery, and Jay's Liquor,
requested Lynch to stop Andrew McClain from servicing
those three retail outlets. He also conceded that he had
made similar requests of other distributors on behalf of
the six stores in which he owns a substantial interest.
Thus it is manifest that his interest in these corporations
greatly exceeds that of a mere stockholder.
Accordingly, based upon the foregoing facts, I find and
conclude that Elmer Hensley maintains and exercises a
sufficient degree of financial ownership and managerial
control of the seven corporations as to constitute them a
single employer for jurisdictional purposes.7 I shall there-
fore recommend that the Board assert jurisdiction."
I further find, based upon the same facts, that the said
Elmer Hensley, when making the request of Lynch to
remove McClain, as more fully discussed infra, was act-
ing as an agent of the three corporations (Elmer's Drive-
In, Elmer's Sportsman, and Jay's Liquor), and was there-
fore an employer within the meaning of Section 2(2) of
the Act.
I All dates hereinafter refer to 1966 unless otherw.se specified
2 The caption in the consolidated cases refers to Hensley as an in-
dividual doing business as Elmer's Dnve-in, Elmer's Sportsman Grocery,
and Jay's Liquor , however, the evidence shows that each of the three en-
terprises is, in fact , a Texas corporation in which the said Elmer Hensley
is a principal stockholder and officer , as hereinafter detailed.
3 Lynch is a supplier of beverages for some or Hens!ey's enterprises
4 The Board asserted junsdiction in S H Lynch and Company, Inc,
160 NLRB 113
5 They are. Industrial Cut Rate, Stag Grocery, and Cut Rate Dnve-in
6 See Carolina Supplies and Cement Co., 122 NLRB 83, 89.
' See N.L.R.B. v Elias Bros Big Boy , Inc, 325 F 2d 360 (C A 6), and
cases cited therein.
9 I would so recommend even if the facts did not warrant a finding that
the seven corporations were one for purposes of the Act. Thus, as the
Charging Union argues, analogizing the situation to that involving a
secondary boycott, should Lynch's employees strike and picket Hensley's
outlets the Board would assert ,lunsdiction based upon Lynch 's operations
alone or a combination of said employers ' businesses were it necessary.
(See International Brotherhood of Teamsters, etc ,Local 544 (McAllister
Transfer, Inc.), 110 NLRB 1769, 1771-72) Since the principal issue in
this case involves a cause and effect relationship between Respondent
Lynch and three of Hensley's retail stores, it would seem that a similar ra-
tionale would apply
Finally, Respondent Hensley argues that it would be unlawful under
Texas law (art 666-17 of Texas statutes) to combine the corporations
since some of them deal in beer while others deal in liquor . I find this argu-
ment without ment, whatever Texas law may be in this regard does not
preclude the Board from considering the seven as one for the purposes of
this Act.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answers admit , and I find
that International Union of United Brewery , Flour,
Cereal , Soft Drink and Distillery Workers of America,
AFL-CIO (herein called the Union ), is a labor organiza-
tion within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
The facts herein are relatively simple and are not seri-
ously in dispute. The difficult question is whether they
amount to a violation of the statute.
As previously noted, Respondent Lynch is engaged in
the wholesaling and distribution of beer in the Dallas
area. In the course and conduct of its business operations,
Lynch employs driver-salesmen who drive trucks and call
on various retail outlets to whom Lynch sells its products.
One such driver- salesman is the alleged discriminatee
herein, Andrew McClain, who has been an employee of
Lynch for some 13 years. He works for a salary plus a
commission based upon the amount of goods he sells and
delivers to customers. Prior to the events herein, Mc-
Clain regularly made deliveries to three of Respondent
Hensley's operations (Elmer's Drive-In, Elmer's
Sportsman Grocery, and Jay's Liquor), and it appears
that McClain had known and been on a friendly relation-
ship with Hensley for some 5 or 6 years prior to March.
On Friday, March 18, the driver-salesmen of Lynch
went on strike. McClain was apparently not in Dallas on
that day, but when he returned to work the following
Monday, he joined the strike. However, not all of the
driver-salesmen participated in the work stoppage, and
Lynch operated during the strike by using nonstrikers and
supervisory personnel.
Shortly after the strike commenced, Hensley was ad-
vised that McClain had stopped making his regular
deliveries to the three aforesaid retail outlets. Hensley
inquired of McClain's supervisor, Dudley Robertson,
who was going to service the stores. Robertson advised
Hensley of the strike, and made a noncommittal answer
as to Hensley's inquiry. However, the fact is that Robert-
son, himself, serviced the stores until a nonstriking em-
ployee, Matt Davis, was assigned to perform that duty.
Lynch's general manager, Crumpley, testified that,
prior to the assignment of Davis to the route, he
(Crumpley) heard that Hensley wanted a new routeman,
and telephoned Hensley to ask the reason. Hensley
replied, "I am not satisfied with the present man. I don't
think he'll be able to service me like I want to be serviced,
and I want a new driver." Crumpley then assigned Davis
to the route, he being the closest driver, geographically
speaking, to Hensley's stores.9
On March 28, the day the strike ended, McClain called
Crumpley, according to normal practice, and was told by
the latter that Hensley did not want McClain to make any
more deliveries to his stores. Accordingly, McClain has
not since that time included Hensley's stores on his route,
although he has had time and capacity to service them,
and the loss of this account has allegedly caused a diminu-
tion in McClain' s earnings due to the loss of commis-
sions.
9 The exact date of Davis' assignment is not reflected in the record
1" The foregoing findings are based upon the testimony of McClain,
whom I credit over Hensley to the extent their testimony differs, the latter
being reluctant , ambiguous , and evasive
On March 29, McClain called on Hensley and asked,
. why, what I had done that he didn't want me to
make him any more." Hensley replied that there were no
hard feelings but that since he (McClain) had gone out on
strike Hensley was afraid that he could not get his delive-
ries when he wanted them. He further told McClain that
the man who had replaced him had been doing a good job
and he saw no reason to change him. 10
Lynch utilized three types of trucks to deliver its
merchandise: beer trucks of which there were 20 and
which was the type that McClain drove; malt liquor
trucks of which there were 4; and 3 draft beer trucks. The
record establishes that the malt liquor truck made delive-
ries to the three Hensley stores with approximately the
same frequency that the beer truck did, and that the
driver of the malt liquor truck also participated in the
strike. However, such driver continued to service the
Hensley enterprises subsequent to the strike, Hensley
making no request that he be removed.
Concluding Findings
As previously stated, the issue on the merits in this
case is whether either Respondent Hensley or Respond-
ent Lynch, or both, violated Section 8(a)(3) and (1) of
the Act when Lynch, acceding to Hensley's request,
stopped McClain from delivering merchandise to Hens-
ley, thereby resulting in a diminution of McClain's
earnings. There is no question, of course, that the sole
reason for McClain's failure to make his regular delive-
ries from March 21 through March 28 was because of his
participation in the strike, which was an activity pro-
tected by Section 7 of the Act." I have also found that
Hensley acquired knowledge of the strike during its ex-
istence so that he knew that such was the cause of the in-
terruption in deliveries. It is likewise certain that it was
this fear of actual or potential interruption of deliveries,
occasioned by the likelihood of McClain's participation
in strikes or work stoppages, which was the motivating
purpose behind Hensley's request for a new driver, the
record being clear that the prior relationship between Mc-
Clain and Hensley afforded no basis or reason for Hens-
ley's desire for a change of driver-salesman . In sum, the
record evidence is substantial that the sole reason for
Hensley's request of Lynch for a change in drivers was
the actual or potential fear of interruption in deliveries oc-
casioned by strikes or work stoppages among Lynch's
employees.
But Respondents argue that assuming all this to be so,
no discrimination and therefore no violation of the Act
accrued because: (1) There is no proof of union animus
on the part of either employer, i.e., the only criterion
which guided Hensley was to assure regular deliveries of
beer, and Lynch simply acceded to his request, as was its
invariable policy, no matter what reason prompted the
customer; (2) Hensley did not seek the removal of the
malt liquor truckdriver who also joined the strike; (3) Mc-
Clain was not shown to be a union member or a leading
union protagonist; and (4) there is no basis for holding
Hensley legally responsible for any discrimination meted
out. to McClain since he had no control over the employ-
ment policies of Lynch.
" There is no contention that the strike was other than a legal one or
that McClain had engaged in any unlawful activities during the strike
which would have rendered his participation therein unprotected
S. H. LYNCH & CO. 557
The General Counsel, cognizant of the fact that or-
dinarily the employer's discriminatory motivation is a
cardinal point in the proof of an 8(a)(3) violation, and ap-
parently recognizing that there is a distinct lack of
evidence in this case on the part of either Respondent
Lynch or Respondent Hensley that either harbored any
union hostility, resorts, in his brief, to the position
generated by the Supreme Court's decision in the Gaynor
News case: 12
specific evidence of intent to encourage or
discourage is not an indispensable element of proof
of violation of § 8(a)(3) .... This recognition that
specific proof of intent is unnecessary where em-
ployer conduct inherently encourages or discourages
union membership is but an application of the com-
mon-law rule that a man is held to intend the foresee-
able consequences of his conduct. [Citing cases.]
Thus an employer's protestation that he did not in-
tend to encourage or discourage must be unavailing
where a natural consequence of his action was such
encouragement or discouragement. Concluding that
encouragement or discouragement will result, it is
presumed that he intended such consequence. In
such circumstances intent to encourage is suffi-
ciently established.
In Gaynor, the employer had granted retroactive wage
increases and vacation payments to employees who were
members of a union and refused to grant such benefits to
other employees because they were not union members;
in Allis-Chalmers Manufacturing Company,13 the em-
ployer, after an NLRB election, changed the employment
status of all of its inspectors because they had selected
the union as their bargaining agent; in N.L.R.B. v. Gluek
Brewing Company,14 the employer consciously pressured
and compelled its truckdrivers to transfer their allegiance
from one union to another in an attempt to extricate itself
from the deleterious results of a jurisdictional dispute
between the two unions; in the Supreme Court's latest
case in this line (N.L.R.B. v. Erie Resistor Corp., 373
U.S. 221), the employer granted "super-seniority" to
strike replacements and strikers who returned to work
prior to the end of the strike in order to keep its plant
open during the work stoppage.15
In all of these cases the employer's defense was that its
conduct was motivated solely by economic considera-
tions and not by any intent to encourage or discourage
membership in a labor organization. This defense was re-
jected by the court on the theory that the discrimination
- though not specifically intended to have such a result -
inherently encouraged or discouraged union membership
and that the employer must have intended such a result,
it being the natural consequence of his action.
The principles discussed and found governing in the
cited cases 's seem applicable to the instant factual situa-
tion. Thus it appears that the employers here were not
prompted primarily by discriminatory reasons: Hensley
wished to be assured of regular beer deliveries and Lynch
desired to please its customer. Nevertheless, in this case,
the other side of the coin of asserted economic necessity
is penalization of an employee solely because he engaged
in strike activity. As pointed out by the Court in Erie the
right to strike is jealously protected by the statute, and the
restraining effect which would emanate from sanctioning
the employers' conduct in this case would certainly not be
lost on either employer's employees." I am equally con-
vinced that neither of these employers failed to foresee
these inevitable consequences of their actions.
Thus, we have here, as in Erie Resistor, supra, a situa-
tion where the employer:
... claim[s] that his actions were taken in the pur-
suit of legitimate business ends and that his dominant
purpose was not to discriminate or to invade union
rights but to accomplish business objectives accepta-
ble under the Act. Nevertheless, his conduct does
speak for itself- it is discriminatory and it does
discourage union membership and whatever the
claimed overriding justification may be, it carries
with it unavoidable consequences which the em-
ployer not only foresaw but which he must have in-
tended. As is not uncommon in human experience,
such situations present a complex of motives and
preferring one motive to another is in reality the far
more delicate task, reflected in part in decisions of
this Court, of weighing the interest of employees in
concerted activity against the interest of the em-
ployer in operating his business in a particular
manner and of balancing in the light of the Act and its
policy the intended consequences upon employee
rights against the business ends to be served by the
employer's conduct. Is
Considering the factual situation here in the light of
these principles, and comparing it with those factual
situations in the cases cited by the Supreme Court in
Gaynor, supra, at footnote 53, I have little difficulty in
finding that, in the instant case, the employees' right to
engage in concerted activities free from coercive
restraints and discrimination overrides the Respondents'
defense of economic necessity. For example, in Gluek,
the employer claimed that bankruptcy was inevitable un-
less it pressured the employees to join a particular union
in order to avoid a jurisdictional dispute; in Erie Resistor,
the employer argued that promising "super-seniority"
was absolutely essential to keeping its production facili-
ties operating during the strike. Here, of course, we have
no such dire economic consequences - only a potential
threat that any future strike activities at Lynch might
result in an interruption in beer deliveries. The contrast
is too obvious.
The remaining defenses may be quickly disposed of:
The fact that McClain was not an outstanding union ad-
herent and that Hensley did not seek a change in the malt
liquor driver are essentially irrelevant in considering
whether the employers' conduct inherently discouraged
protected activities. The fact is that McClain did
participate in the strike, that this was known to both em-
ployers and to the employees, and that retribution was
11 Gaynor News Company, Inc v N L R B, 347 U.S. 17, 44-45
(1954)
13 70 NLRB 348, enfd 162 F 2d 435 (C.A. 7) (cited by the Court in
Gaynor)
'4 144 F 2d 847 (C A 8) (also cited in Gaynor)
" See also Great Dane Trailers, Inc., 150 N LRB 438, enforcement de-
nied 363 F 2d 130 (C.A. 5), cert granted 383 U.S. 26 (35 LW 3229,
1/9/67)
11 N L R.B v. Industrial Cotton Mills, 208 F.2d 87 (C A. 4), and
Cusana dlbla American Shuffleboard Co v N L R.B., 190 F 2d 898
(C A 3) (also cited by the Supreme Court), stand for the proposition that
an employee 's protection under Sec 7 of the act is not impaired by an em-
ployer's honest but mistaken belief that the employee has engaged in
misconduct which, if true, may have removed such protection
" Cf Ursula Cervantes, etc, d/bla Panaderia Sucesion Alonso, 87
NLRB 877, 882-883 (dissenting opinion)
18 73 U .S at 228
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARC
immediately forthcoming. As previously noted, the effect
of the juxtaposition of these events could hardly have
been lost on the employees. That Hensley did not seek a
change in the malt liquor driver would not materially af-
fect these circumstances, particularly where Crumpley
conceded that malt liquor represented "a very small
percent[age]" of Lynch's business, and it may be
reasonably inferred that the same is true of Hensley's.
Finally, Respondent Hensley argues that no legal
responsibility can attach to him, it not being claimed or
proved that a joint employer relationship existed between
him and Lynch, nor was there any contractual basis upon
which a control of the employment of McClain could be
predicated. This contention is without merit. The issue
was answered adversely to Respondent Hensley's con-
tentions, in a similar context, in Northern California
Chapter, TheAGC etc., 119 NLRB 1026, 1031-32:
As we see it, the question of legal responsibility for
such discrimination does not, and cannot be made to,
depend upon whether an employer has, by reason of
his business relationship with another employer,
such "contractual control" over the employees in-
volved as to render them his own, for all practical
purposes. To us, the relevant questions are whether
an employer had the power to effectuate the removal
of employees, whether he proceeded to do so, and
thus, as a result, whether he thereby caused a dis-
crimination with respect to their tenure of employ-
ment because of their union activities or lack thereof.
It is sufficient for a finding of a violation of Section
8(a)(3) and (1) that an employer, who meets the Act's
definition of an employer, has accomplished an act
while [sic] results in a discrimination with respect to
the "tenure of employment" of employees who meet
the Act's definition of employees. It is the dis-
crimination that encourages or discourages union
membership that is of primary concern for determin-
ing the issue and not the specific relationship
between the discriminating "employer" and the dis-
criminated against "employees." It is sufficient that
the discriminatee be a member of the working class
in general and that the "employer" be any employer
who has any interest, direct or indirect, in the condi-
tions of employment of the discriminatee or has any
control, direct or indirect, over the terms of his em-
ployment.
Clearly, Hensley as a valued customer of Lynch had
the power to cause the discrimination herein, and
proceeded to do so. I therefore find, based upon my con-
sideration of the record as a whole. that Respondent Hens-
ley and Respondent Lynch. jointly and severally, vio-
lated Section 8(a)(3) and (1) of the Act by causing and ef-
fectuating a discrimination with respect to McClain's
terms and conditions of employment to discourage mem-
bership in the Union. Accordingly, I shall recommend an
appropriate remedy.
CONCLUSIONS OF LAW
1. Respondents are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By causing Respondent Lynch to discriminate with
respect to terms and conditions of employment of An-
drew McClain, Respondent Hensley, individually and on
behalf of Elmer's Drive-In, Elmer's Sportsman Grocery,
and Jay's Liquor, violated Section 8(a)(3) and (1) of the
Act.
3. By discriminating with respect to the terms and con-
ditions of employment of its employee, Andrew McClain,
in order to discourage membership in the Union, Re-
spondent Lynch violated Section 8(a)(3) and (1) of the
Act.
4. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondents engaged in certain un-
fair labor practices, it is recommended that they be or-
dered to cease and desist therefrom, and that they take
certain affirmative action which I deem necessary to
remedy and remove the effects of the unfair labor prac-
tices and to effectuate the policies of the Act.
Having found that Respondent Hensley on behalf of
Elmer's Drive-In, Elmer's Sportsman Grocery, and Jay's
Liquor caused Respondent Lynch to stop its employee,
Andrew McClain, from making deliveries to the aforesaid
three stores, thereby changing the terms and conditions
of McClain's employment, it is recommended that
Respondent Hensley notify Respondent Lynch, in writ-
ing, with a copy thereof to McClain, stating that he
withdraws his objections to McClain's making such
deliveries.
Having found that Respondent Lynch changed the
terms and conditions of McClain's employment in the
manner aforesaid, it is recommended that Respondent
Lynch be ordered to restore to McClain the right to make
regular deliveries of merchandise to the aforesaid Hens-
ley enterprises. It is further recommended that Respond-
ent Hensley and Respondent Lynch be ordered, jointly
and severally, to make McClain whole for any loss of pay
suffered by reason of their discrimination against him by
payment to him of a sum of money equal to the amount he
normally would have earned from March 28, 1966, until
his right to make deliveries at the aforesaid Hensley en-
terprises is restored (except that, in the case of Respond-
ent Hensley, such liability for backpay shall cease no
later than 5 days following his giving the aforesaid "no-
objection" notice to Respondent Lynch). The loss of
earnings is to be computed in accordance with the formu-
la approved in F. W Woolworth Company, 90 NLRB
289, with interest computed in the manner prescribed in
Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following:
RECOMMENDED ORDER
A. Respondent Hensley, individually, and on behalf
of Elmer's Drive-In, Elmer's Sportsman Grocery, and
Jay's Liquor, their officers, agents, successors, and as-
signs, shall:
1. Cease and desist from-
(a) Causing, or attempting to cause, Respondent
Lynch from stopping McClain, or any other employee,
from making deliveries to the aforesaid Hensley enter-
prises (Elmer's Drive-In, Elmer's Sportsman Grocery,
and Jay's Liquor), because such employee is a member of
the Charging Union, or has engaged in concerted activi-
ties with other employees for their mutual aid or protec-
tion.
(b) In any like or related manner restraining or coerc-
ing employees of Lynch in the exercise of their rights
guaranteed in Section 7 of the Act.
S. H. LYNCH & CO.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Notify Respondent Lynch, in writing, with a copy
to said McClain, that he has no objections to Respondent
Lynch's restoration to McClain of the right to make regu-
lar deliveries of merchandise to the aforesaid Hensley en-
terprises.
(b) Jointly and severally with Respondent Lynch,
make McClain whole for any loss of earnings he may
have suffered by reason of the discrimination against him
as set forth in the section of this decision entitled "The
Remedy."
(c) Post at his office, and at the aforesaid enterprises
(Elmer's Drive-In, Elmer's Sportsman Grocery, and
Jay's Liquor), copies of the attached notice marked "Ap-
pendix A." 1 `' Copies of the said notice, to be furnished by
the Regional Director for Region 16, shall, after having
been duly signed by Respondent Hensley, be posted by
him immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent Hensley to insure that such notices are not
altered, defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing,
within 20 days from the date of receipt of this Decision,
what steps it has taken to comply herewith. 20
B. S. H. Lynch and Company, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating against its employees in regard to
their hire or tenure of employment or any term or condi-
tion of employment in order to discourage membership in
International Union of United Brewery, Flour, Cereal,
Soft Drink and Distillery Workers of America,
AFL-CIO.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the National Labor
Relations Act, as amended.
2. Take the following affirmative action which I find
necessary to effectuate the policies of the Act:
(a) Notify Andrew McClain that the right to regularly
service and deliver merchandise to the three aforesaid
Hensley enterprises will be immediately restored to him.
(b) Jointly and severally with Respondent Hensley
make McClain whole for any loss of earnings he may
have suffered by reason of the discrimination against him
as set forth in the section of this decision entitled "The
Remedy."
(c) Post at its premises at Dallas, Texas, copies of the
attached notice marked "Appendix B."21 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 16, shall, after being duly signed by its representa-
tive, be posted by Respondent Lynch immediately upon
receipt thereof, and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
Lynch to insure that such notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of receipt of this Decision, what steps
the Respondent Lynch has taken to comply herewith. 22
19 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
559
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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
20 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 Respon-
dent has taken to comply herewith "
See fn 19, supra
22 See fn 20, supra
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT cause, or attempt to cause, S. H.
Lynch and Company, Inc., to stop Andrew McClain,
or any other employee, from making deliveries to our
retail stores, because he is a member of International
Union of United Brewery, Flour, Cereal, Soft Drink
and Distillery Workers of America, AFL-CIO, or
any other labor organization, or because he has gone
on strike or engaged in any other concerted activity
with other employees for their own mutual aid or
protection.
WE WILL notify S. H. Lynch and Company, Inc.,
that we have no objection to their restoring Andrew
McClain to making deliveries to and servicing our
retail stores.
WE WILL, jointly and severally with S. H. Lynch
and Company, Inc., make whole Andrew McClain
for any loss of earnings he may have suffered as a
result of the discrimination against him.
WE WILL' NOT in any like or related manner
restrain or coerce employees in the exercise of their
rights guaranteed in Section 7 of the National Labor
Relations Act.
ELMER HENSLEY, ON BE-
HALF OF ELMER 'S DRIVE-
IN, ELMER 'S SPORTSMAN
GROCERY, AND JAY'S
LIQUOR
(Employer)
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 8A24,
Federal Office Building, 819 Taylor Street, Fort Worth,
Texas 76102, Telephone 334-2921.
560 DECISIONS OF NATIONAL
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
amiger 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 em-
ployees that:
WE WILL NOT discriminate against any of our em-
ployees in regard to their hire or tenure of employ-
ment or any term or condition or employment to
discourage membership in International Union of
United Brewery , Flour , Cereal, Soft Drink and
Distillery Workers of America , AFL-CIO, or any
other labor organization.
WE WILL notify Andrew McClain that we will im-
mediately restore on his regular delivery route the
following retail stores: Elmer ' s Drive-In , Elmer's
Sportsman Grocery, and Jay's Liquor.
WE WILL , jointly and severally with Elmer Hens-
ley, individually and on behalf of Elmer's Drive-In,
LABOR RELATIONS BOARD
Elmer's Sportsman Grocery, and Jay's Liquor, make
Andrew McClain whole for any loss of earnings he
may have suffered by reason of the discrimination
against him.
WE WILL NOT in any like or related manner inter-
fere with. restrain , or coerce employees in the exer-
cise of their rights guaranteed in Section 7 of the Act.
S. H. LYNCH AND COM-
PANY, INC.
(Employer)
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 8A24,
Federal Office Building, 819 Taylor Street, Fort Worth,
Texas 76102, Telephone 334-2921.