S. H. Lynch and Co., Inc.

National Labor Relations Board - Board Decisions

Sep 20, 1967

167 N.L.R.B. 498 (N.L.R.B. 1967)

498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. H. Lynch and Company, Inc. and International
Union of United Brewery, Flour , Cereal, Soft
Drink and Distillery Workers of America,
AFL-CIO. Case 16-CA-2825
September 20, 1967
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS , AND ZAGORIA
On May 9, 1967, Trial Examiner Sydney S.
Asher, Jr., issued his Decision in the above-entitled
proceeding, finding that the Respondent had not en-
gaged in any unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Decision together
with a supporting brief, and the Respondent filed a
reply brief in opposition to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as modified
herein.
We agree with the Trial Examiner that the com-
plaint herein should be dismissed. The record
clearly shows that the General Counsel failed to
establish by a preponderance of evidence that the
Respondent, by disciplining employee Thompson,
discriminated against him within the meaning of
Section 8(a)(1) and (3) of the Act. Accordingly, we
shall dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
SYDNEY S . ASHER , JR., Trial Examiner : On October
19, 1966 , International Union of United Brewery , Flour,
Cereal, Soft Drink and Distillery Workers of America,
AFL-CIO, herein called the Union , filed charges against
S.H. Lynch and Company , Inc., Dallas, Texas, herein
167 NLRB No. 67
called the Respondent Amended charges were filed on
November 4, 1966. On November 30, 1966, the General
Counsel of the National Labor Relations Board issued a
complaint alleging that on or about October 10, 1966, the
Respondent suspended Harold Thompson, an employee,
because he joined or assisted the Union or engaged in
other concerted activities. It is alleged that this conduct
violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended (29 U.S.C. Sec. 151, et seq.),
herein called the Act. Thereafter the Respondent filed an
answer admitting that it had suspended Thompson on or
about October 10, 1966, but denying that it had done so
for the reasons set forth in the complaint.
Upon due notice, a hearing was held before me on
January 24, 1967, at Dallas, Texas. All parties were
represented and participated fully in the hearing. After
the close of the hearing, the General Counsel and the
Respondent filed briefs. These have been duly con-
sidered.
Upon the entire record in this case, and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
The complaint alleges, the answer admits, the Board
has found,' and it is now found, that the Respondent is,
and at all material times has been, an employer engaged
in commerce as defined in the Act, and its operations
meet the Board's jurisdictional standards;2 and that the
Union is, and at all material times has been, a labor or-
ganization within the meaning of the Act.
A. The Setting
Harold W. Thompson begain working for the Respond-
ent in late 1961 or early 1962, as a helper. Approximate-
ly 8 or 9 months later he was given his own route. Since
then, he has been employed as a route salesman.
Thompson joined the Union in November 1965, and
has attended approximately five or six meetings. In
March 1966 the Union struck the Respondent and
picketed its place of business for about 7 days. Thompson
was 1 of 33 employees who joined the strike. He per-
formed picket duty at the front gate for 2 hours daily, car-
rying a sign. For about 2 or 3 days after the strikers
returned to work, Thompson wore a union button at the
plant, presumably (although the record is not clear on this
point) openly and in full view.
It was part of Thompson's duties as a route salesman
to make weekly deliveries of beer to listed customers. If
customers desired to make additional purchases on any
day other than their regular day, they called the
warehouse and requested a supplemental delivery.
Among the customers assigned to Thompson were the
Long Horn Ballroom and Guthrie's Club, which were
located "right next" to one another. The regular delivery
day for Long Horn was on Mondays, and for Guthne's on
Thursdays.
' S H Lynch and Company, Inc, 160 NLRB 113
2 The Respondent is, and at all material times has been, a Texas cor-
poration with its principal office and warehouse in Dallas, Texas, where
it is engaged in the sale and distribution of beer to retailers During the
year prior to November 30, 1966, the Respondent purchased products
valued at more than $100,000, of which more than $50,000 worth was
shipped to the Respondent's Dallas warehouse from points outside the
State of Texas
S. H. LYNCH CO., INC. 499
B. The Events of October 6
On Thursday, October 6 Thompson reported for
work at 7 a.m. as usual , and left the warehouse to make
deliveries on his route, accompanied by two helpers. He
returned to the warehouse for a reload about 11.30 a.m.
About noon Francis Kindlinger, a secretary employed by
the Respondent , told Thompson that Long Horn wanted
a supplemental beer delivery around 3 o'clock.4
Thompson responded either: "Well, I am going to have to
teach them better than that," or something to the effect
that he "would have to talk to [Long Horn's manager]
about that because it wasn't his regular day."5
About I or 1:30 p.m. Thompson proceeded to the Long
Horn Ballroom . Upon discovering that Phillip Reed,
Long Horn's manager , was not there, Thompson
telephoned to Reed and asked if he could make the
delivery on the next day (Friday); Reed assented.
Thompson next went to Guthrie's but found "no one
there at the time," and went about his other calls" without
delivering to Guthrie's. About 1:30 or 2 p.m. Thomp-
son returned to the warehouse,7 checked his truck in, and
went home.
About 3:30 or 4 p.m. Edward Louis McAnally, then
the Respondent's cashier, informed Charles C.
Crumpley, the Respondent's general manager, that
Thompson had not made the delivery to Long Horn.
Crumpley replied that he would look into the matter 8
then examined Thompson's clipboard, to which was at-
tached the slip describing Long Horn's call-in. About this
time , 4:35 p. m., the manager of Guthrie's had called in
asking for a delivery, and a note to this effect had also
been attached to Thompson's clipboard: Crumpley saw
this too.9 About 4:30 or 5 p.m. Crumpley asked Beverly
Windlow, the Respondent's receptionist, whether the
delivery to Long Horn had been made. She replied that
she did not know, and that Kindlinger had relayed Long
Horn's call to Thompson. Upon inquiry by Crumpley,
Kindlinger confirmed that she had conveyed Long Horn's
message to Thompson. She added that Thompson had
stated that he would have to teach them better than
that. At Crumpley's direction, Windlow telephoned to
Reed , found that Long Horn had not received its
delivery that day, and reported this to Crumpley.10
Crumpley then directed Matt Davis, another route
salesman employed by the Respondent, to make the
deliveries to Long Horn and Guthrie's. This was done,
necessitating a delay in the quitting time of both Davis
and McAnally.11
C. Thompson's Suspension
On Friday, October 7, Thompson came to work as
usual about 7 a.m. and was summoned by Crumpley.
Upon inquiry from Crumpley, Thompson admitted that
he had, the previous day, been notified of Long Horn's
call-in. When Crumpley asked why Thompson had not
made the delivery, Thompson explained that he had
called Long Horn's manager, who agreed that the
delivery could be postponed until the next day. Crumpley
responded that it was not the Respondent's policy to call
customers and request them to "pass up business for that
day" because the customer wanted the delivery or he
would not have called in for it. Crumpley then asked why
Guthrie's had not received its regular Thursday delivery.
Thompson answered that one of his helpers wanted to get
off early. Crumpley remarked that the Respondent was
"in the service business" and retailers depended upon the
Respondent to obtain merchandise so they could operate
their businesses. He added that the Respondent was "go-
ing to take some disciplinary action" and that he would
talk to Thompson later. The interview ended, and
Thompson performed his normal functions for the
balance of that day.12
About 10 a.m. that day, Crumpley had a conversation
with McAnally about Thompson's failure to deliver beer
to Long Horn the previous day. McAnally reported that
Thompson had remarked that "he didn't make it and was
not going to make it." 13 Either that afternoon or the next
day (Saturday, October 8), Crumpley discussed the
matter with his attorney.
When Thompson came to work at 7 a.m. on Monday,
October 10, he was again called to Crumpley's office,
where the following conversation took place:
CRUMPLEY: In view of the facts which you
gave me on Friday of the calls that you missed and
your attitude towards making the stops, we have no
choice but to suspend you for a two-week period.
3 All dates hereafter refer to the year 1966, unless otherwise noted
4 At approximately 11 35 a.m Beverly Windlow , the Respondent's
receptionist , had received a telephone call from Long Horn's manager
ordering 15 cases of beer to be delivered around 3 p m She noted the
information on a slip , which was placed on a clipboard for Thompson's
attention This slip was still on the clipboard when, a short while after the
call came in , Kindlinger relieved Windlow for lunch
3 The conversation took place over an intraoffice telephone while both
participants were inside the warehouse The findings regarding the sub-
stance of the conversation are based on a synthesis of the testimony of
both participants
On direct examination , Thompson testified
Q (By Mr Dodson) Now, why didn't you wait for the beer man
at Guthnes on this particular Thursday , October 67
A Well, the fact that he had had delivery that Tuesday and I had
a helper that wanted off to see the World Series
' When Thompson returned Edward Louis McAnally, the Respond-
ent's cashier at that time , was in the warehouse According to McAnally,
he asked Thompson if he had delivered to Long Horn and Thompson
said no, when he inquired why, Thompson replied that he "was going to
teach them once and for all that they can be made on their day and their
day only " Thompson admitted talking to McAnally that afternoon but de-
nied that there was any mention of Long Horn As this was a conversation
between two rank-and-file employees, not overheard by any management
representative, I deem it unnecessary to resolve the credibility conflict
8 McAnally testified that he had ascertained this fact by looking at
Thompson's clipboard. The findings regarding this conversation are based
on Crumpley's testimony, corroborated by that of McAnally
8 Crumpley likewise saw a call-in slip from the Veterans of Foreign
Wars, also on Thompson's route, but this apparently did not affect the
events described herein
10 According to Reed's testimony, he told Windlow "that the boy
[Thompson] was coming the next day " According to Windlow, Reed
said "he possibly could wait until tomorrow " It is not clear whether either
remark was repeated by Windlow to Crumpley
" The cashier must remain until all deliveries have been made and all
trucks have been checked in The finding that on October 6 McAnally
was held up is based on McAnally' s undenied testimony on cross-ex-
amination
12 The findings regarding this conversation are based on Crumpley's
testimony, corroborated in part by that of Thompson Thompson further
testified that Crumpley told him that the manager of the Long Horn had
called back that afternoon and wanted to know why he hadn't received his
delivery I credit Crumpley's version as more accurate than that of
Thompson, particularly as Thompson, in testifying, may well have inad-
vertently confused Long Horn with Guthne's
13 The finding regarding this statement by McAnally is based on
Crumpley' s undenied testimony McAnally testified that a somewhat
similar statement was part of his conversation with Crumpley on October
6, the previous day
310-541 0 - 70 - 33
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THOMPSON: You mean you are laying me off
without pay?
CRUMPLEY: That is correct.
THOMPSON: That is a pretty stiff penalty,
looks like, for the first time.
CRUMPLEY: That is the only way it can be han-
dled.
THOMPSON: When do I start?
CRUMPLEY: You will start today and you will
come back two weeks from today.
THOMPSON: Thank you.14
Thompson then left the warehouse.
On Tuesday, October 11, Thompson returned to the
warehouse accompanied by Bill Parker and Larry Prior
(not otherwise identified on the record) and sought and
obtained a conference with S.H. Lynch, president of the
Respondent. Thompson said to Lynch: "I was told to
come down here and show you this and talk to you about
this suspension." He handed Lynch a note which he had
obtained the previous day. It was signed by Reed, and
read:
On Thursday the 6th of October I phoned the Schlitz
brewing company for a delivery. I later received a
call from Harold Thompson asking if it was all right
to make the delivery on Friday the 7th, and I agreed
it was OK.
Thompson asked to be reinstated but Lynch replied that
Reed's note "didn't make any difference" and the suspen-
sion would have to stand. Thompson protested: "Well, it
looks like it is pretty hard." To this Lynch responded:
"Yes, sir, but our customers are first and we have a policy
that has to be carried out."15 Thompson, Parker, and
Prior then left. Thompson returned to work at the end of
his suspension on Monday, October 24, and has been em-
ployed there continuously since then.
D. Contentions of the Parties
The General Counsel, in his brief, contends that "the
reason given by Respondent for the suspension is purely
pretextual, . . . the true reason was Thompson's union
support and participation in the strike and picketing of
Respondent." In support of this contention, the General
Counsel urges that "it was common practice for drivers
to leave by 2:00 p.m., and that Thompson had never been
reprimanded for leaving too early." In addition, the
General Counsel maintains that "there was nothing out
of the ordinary in Thompson's handling of either the
Longhorn Ballroom or Guthrie's Club." In particular the
General Counsel takes the position that Thompson "had
made arrangements with the Longhorn to make the
delivery on Friday" and so informed Crumpley at 7 a.m.
on October 7. With respect to Guthrie's, the General
Counsel points out "that although Guthries called in, the
call-in was not in the nature of a complaint, but merely to
order beer," and that "no employee has ever been repri-
manded or disciplined as a result of a call-in coming in
after he had left work for the day." Further, that in decid-
ing to postpone Guthrie's delivery, Thompson acted "in
accordance with long established prior practice" known
to and condoned by the Respondent.
The Respondent states, in its brief:
General Counsel, it is submitted, has not proved any
anti-union animus on the part of Respondent, has not
proved that Thompson was discriminated against,
and has not proved that the disciplinary action taken
by Respondent against Thompson was taken for the
purpose of discouraging union membership or activi-
ty.
Affirmatively and by way of defense the Respondent
maintains that "Thompson was suspended for missing a
scheduled delivery to a customer [Guthrie's] on that day,
and for failing to, make a call-in delivery to another
customer [Long Horn]." There is apparently no conten-
tion by the Respondent that Thompson went home at too
early an hour. Nor does the Respondent appear to urge
that Thompson was at fault merely because a call-in was
received after he had left work for the day. The Respond-
ent's position, simply stated, is that Thompson violated
its rules or policy by checking out and leaving before
completing his allotted task. The Respondent also de-
fends on the ground that three other route salesmen who
committed comparable offenses were punished just as
severely as, or more severely than, Thompson.
E. Conclusions
Crumpley testified on direct examination:
Q. Did Mr. Thompson ' s suspension have
anything to do with his participation in the strike?
A. No, sir.
Q. (By Mr . Lyne) Was the suspension done for
any purpose having to do with discouraging his par-
ticipation in any union activities?
A. No, sir.
As the sole issue herein is the Respondent's motive for
disciplining Thompson , and as it was Crumpley who
made the decision to take the disciplinary action in
question , the above -quoted answers go to the very heart
of this case . If credited , they furnish a complete defense.
Let us therefore analyze them carefully.
1. In order to prove the Respondent's union animus,
the General Counsel asks that I take official notice of
Cases 16-CA-2618 and 16-CA-2639 , et al., both involv-
ing the Respondent herein In Case 16-CA-2618 the
Board found, on a stipulated record (160 NLRB 113),
that the Respondent violated Section 8(a)(5) of the Act by
refusing, at all times since March 14, 1966, to recognize
the Union. The case is now pending before the United
States Court of Appeals for the Fifth Circuit on the
Respondent's petition to review and set aside the Board's
order . I note that the Board found that the Respondent,
in refusing to recognize the Union , based its refusal on its
desire "to obtain judicial review of the Board's decision
overruling the [Respondent 's] objections to the election
and certifying the Union ." In the light of the fact that the
Respondent was there pursuing the only road open to it
to test the certification ' s validity, while I take official
notice of the Board's Decision in Case 16 -CA 2618, I
find therein no persuasive evidence of the Respondent's
hostility to the Union . Let us turn then to Case
16-CA-2639, et al., in which Trial Examiner Robert
Cohn found that the Respondent violated Section 8(a)(3)
of the Act on March 28, 1966 , by changing the terms of
employment of one of its drivers because he participated
in the strike of March 1966 . However , Trial Examiner
14 The findings regarding this conversation are based on Crumpley's
testimony, corroborated in part by that of Thompson
15 The findings regarding this conversation are based on a synthesis of
the testimony of Lynch and Thompson Neither Parker nor Prior testified
S. H. LYNCH CO., INC.
Cohn found therein that the Respondent 's conduct was
"not prompted by discriminatory reasons " but because
the Respondent "desired to please its customer." This
decision therefore lends no support to the General Coun-
sel's assertion of union animus . Moreover , Trial Ex-
aminer Cohn's decision in Case 16-CA-2639, et al., is
now pending before the Board on exceptions ; until the
Board has ruled thereon I decline to take official notice of
the facts found therein . I conclude that neither the record
before me nor the records in the cases cited by the
General Counsel establish the Respondent ' s union
animus.
2. Although the General Counsel in his brief
refers to Thompson as "an active member of the Union,"
there is no showing that he was more active than any of
the other 33 employees who participated in the strike.
The record falls short of demonstrating that he was a
leader of the union movement , or otherwise outstanding
in any concerted activities , so as to mark him as a logical
target for the Respondent 's alleged (but not proven)
hostility to the Union . It is difficult to understand why the
Respondent (even if strongly antiunion) would reach
down and take .revenge upon Thompson rather than upon
any other striker.
3. The timing of the discipline - more than 6 months
after the strike 's end - is significant . I am not convinced
that the Respondent lay in wait all this time , seeking a
pretext to punish a striker. The record does not lend itself
to an assumption that the resentment , if any , felt by the
Respondent was that deeply seated . It is just as logical to
assume that scars originally caused by the strike , if in fact
there were any, had been healed by the lapse of time.
4. Neither the strike nor the Union was mentioned by
Crumpley to Thompson , or to any other person, in con-
nection with Thompson 's suspension.
5. The decision to discipline Thompson was not made
in a precipitate manner . On the contrary , it was reached
only after a thorough investigation and time to consider
all significant factors . This does not bespeak a pretext.
6. The General Counsel has not shown disparate
treatment . There is no reason to believe , on the record be-
fore me, that any other route salesman (even if he were
501
antiunion) would have been , or was in the past, treated
less severely under similar circumstances.
For the foregoing reasons I am convinced, and find,
that the General Counsel has failed to establish facts from
which can reasonably be inferred any connection
between Thompson's union activities and his discipline.
In short, no prima facie case has been shown that
Thompson was discriminated against because of his pro-
tected participation in the strike. In this posture of the
case, I need not and do not determine whether, as the
Respondent apparently contends, Thompson was
suspended for good cause. Once it has been found that
the General Counsel has failed to prove discrimination,
"the matter of employee discipline is left to the discretion
of management and is not a proper concern of the
Board."16
Upon the basis of the above findings of fact, and upon
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. S. H. Lynch and Company, Inc., is , and at all
material times has been , an employer within the meaning
of Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. International Union of United Brewery , Flour,
Cereal , Soft Drink and Distillery Workers of America,
AFL-CIO, is, and at all material times has been , a labor
organization within the meaning of Section 2(5) of the
Act.
3. The General Counsel has failed to establish by a
fair preponderance of the evidence that the Respondent
discriminated against Harold W. Thompson within the
meaning of Section 8 (a)(1) or (3) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclu-
sions of law, and on the entire record in this case, I
recommend that the complaint herein be dismissed in its
entirety.
18 N.L.R.B. v. Ogle Protection Service, I nc., et al., 375 F.2d 497 (C.A.
6).