Kendrick Cartage Co.

534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kendrick Cartage Co. and Lovelace Truck Service, Incorporated and Charles E. Sullens. Cases 14-CA- 5402 and 14-CA-5403 February 16, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 3, 1970, Trial Examiner George Turitz issued his Decision in the above- entitled proceeding, finding that Respondents had engaged in and were engaging in unfair labor practices and recommending that they cease and desist therefrom, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner also found that Respondent Kendrick Cartage Co. had not engaged in certain other unfair labor practices alleged in the complaint and recommended that those allegations be dismissed. Thereafter, the General Counsel and Respondent Lovelace Truck Service, Incorporated, filed exceptions to the Trial Examiner's Decision together with supporting briefs, and Respondent Kendrick Cartage Co. filed cross- exceptions to the Trial Examiner's Decision and a supporting brief. 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 preju- dicial 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 recommendations of the Trial Examiner to the extent consistent herewith. The Trial Examiner found, and we agree, that Ken- drick Cartage Co., hereinafter called Kendrick, viola- ted Section 8(a)(1) of the Act by indirectly threatening one of its employees with an unfavorable employment reference in the event he filed grievances under the existing collective-bargaining agreement. We also agree that Kendrick did not cause Lovelace Truck Service, Incorporated, hereinafter called Lovelace, to discharge Sullens. We do not agree, however, that the evidence establishes that the employment reference concerning Sullens which Kendrick sent to Lovelace in effect recommended that Lovelace discharge Sul- lens because of his participation in union and protect- ed concerted activities, including grievance procedure activities, while he was employed by Kendrick. In view of such findings we further conclude that Ken- drick did not violate Section 8(a)(1) by sending the employment reference to Lovelace and that Lovelace's discharge of Sullens was not discrimina- torily motivated. Sullens quit his truck driving job with Kendrick because he wished to work near his home rather than at the terminal to which he, and others, had been transferred. He then obtained a similar job with Love- lace at a terminal located in his home town. During his job interview with Lovelace's terminal manager, Geisler, he stated that he had been a shop steward in Teamsters Locals 50 and 525 while employed by Ken- drick and that he had had "personal difficulties" with Kendrick's management concerning the Union's col- lective-bargaining agreement. This information obvi- ously did not disturb Geisler since he made arrangements for Sullens to take a driving test. During the test, which was given by Lovelace's safety direc- tor, Sprague, Sullens also stated to Sprague that he, Sullens, "personally had had differences with Ken- drick ... concerning the union contract." The nega- tive effect of this disclosure upon Sprague specifically and on Lovelace generally is apparent both in Sprague's answer that "We have a contract,' we live up to it, and we expect you to live up to it," and in Lovelace's action by employing Sullens. On the same day of Sullens' hire, Lovelace request- ed and subsequently received from Kendrick a letter of reference concerning Sullens. The letter contained, in addition to the usual job ratings, comments con- cerning Sullens' involvement in union and Section 7 activities while employed by Kendrick. It also includ- ed several unfavorable remarks with regard to Sullens' character and his conduct as an employee-remarks unconnected with either his union or grievance activi- ties which would constitute valid and lawful grounds for discharge. The letter concluded with the statement that "I would not hire this man under any circum- stances." Lovelace terminated Sullens because the let- ter was a "hell of a personal reference" and because of Sullens' "history of bankruptcy."' Thus, it is clear that when Lovelace hired Sullens, it knew generally that he had been a shop steward and, therefore, undoubtedly was active in union mat- ters, that he had had personal difficulties and differ- ences with Kendrick in matters regarding their collective-bargaining agreement, and that this knowl- edge obviously was of no concern to Lovelace. The remarks in the letter of reference with regard to those activities merely specified in more detail that which Lovelace already knew generally when it hired Sul- lens. There is no affirmative evidence, however, dem- onstrating that Lovelace's initial lack of concern was Lovelace had been in contract with the Teamsters for the past 15 years Z Sullens declared himself bankrupt several years earlier The record does not disclose the present status of the bankruptcy proceeding 188 NLRB No. 80 KENDRICK CARTAGE CO. aggravated because of those disclosures, or that it in fact discharged Sullens in reliance thereon rather than because of other detrimental personal references as to his conduct and character. Therefore, in view of the presence of valid reasons for discharge, and in face of a conceded absence of union animus on Lovelace's part, we cannot infer that Lovelace terminated Sullens because of the references to his union and Section 7 activities.' We find, there- fore, contrary to the Trial Examiner, that the General Counsel failed to establish by a preponderance of the evidence that Lovelace discharged Sullens because of the comments contained in the letter of reference per- taining to his union and concerted activities during his employment with Kendrick. We also find that inasmuch as the letter of reference has not been shown to be other than that which it purports to be-a disclosure of the unfavorable as well as the favorable personal and other characteris- tics of a former employee in whom Kendrick had no further interest-Kendrick did not violate the Act by sending the letter which Lovelace had requested. In view of the foregoing, therefore, we cannot find, as did the Trial Examiner, that the letter was unlawful because it was so intimately connected with Sullens' severed employment as to tend to interfere with the exercise of the Section 7 rights of Kendrick's employ- ees." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, Kendrick Cartage Co., Wood River, Illinois, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Threatening or warning its employees that their filing of grievances through a labor organization or under a collective-bargaining agreement might result in an unfavorable employment reference. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds necessary to effectuate the policies of the Act: (a) Post at its office and place of business copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Direc- tor for Region 14, after being duly signed by an au- thorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable 535 steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges viola- tion of the Act not found herein. MEMBER JENKINS concurring in part and dissenting in part: Kendrick threatened one of its employees with an unfavorable employment reference in the event he filed grievances under the existing collective-bargain- ing agreement. My colleagues find the threat violative of Section 8(a)(1) of the Act and I am in agreement. Subsequently, Kendrick made good on its threat by sending an unfavorable employment reference to Lovelace, which reference included statements con- cerning the employee's active pursuit of grievance matters. My colleagues do not find this action to vio- late Section 8(a)(1) and I dissent from their conclu- sion. The facts seem clearly to demonstrate a carryover of unlawful intent from the making of the threat to its fulfillment. While undoubtedly an employer has a right, when requested to do so, to furnish an employ- ment reference to another employer, if his purpose in doing so is to punish an employee for exercising his Section 7 rights, the action tends to discourage the employee from engaging in those activities and thus violates Section 8(a)(1) of the Act. Record facts sup- port the conclusion that a causal relationship exists between the unlawful threat, its fulfillment, and the employee's discharge by Lovelace. I would therefore find that although Lovelace committed no unlawful act in discharging the employee, Kendrick unlawfully intended to cause Lovelace to discharge him and thus Kendrick should bear the responsibility for reme- dying the unfair labor practice. 3 See N L.R B v WTVJ, Inc, 268 F.2d 346 (C A 5) Cf S H Lynch and Company, Inc, 167 NLRB 554 5 In the event that this 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 be changed to 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 or warn our employees that they might be given an unfavorable employ- 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment reference if they file grievances through their union or under their collective-bargaining agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them in Section 7 of the National Labor Relations Act. KENDRICK CARTAGE CO. (Employer) Dated By (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 concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 418, St. Louis, Missouri 63101, Telephone 314-622-4167. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE TURrrz, Trial Examiner: Upon separate charges filed by Charles E. Sullens, an individual ("Sullens"), in Cases 14-CA-5402 and 14-CA-5403 on December 10, 1959, and served that same day on Kendrick Cartage Co. ("Kendrick") and Lovelace Truck Service, Incorporated ("Lovelace"), respectively, the General Counsel of the Na- tional Labor Relations Board ("the Board"), throuthe Regional Director for Region 14, on January 29, 1970, is- sued an order consolidating cases, complaint, and notice of hearing against Respondents Kendrick and Lovelace. Re- spondqtits filed their respective answers in which, among other things, they denied all allegations of unfair labor prac- tices. At the hearing Lovelace amended its answer to allege an affirmative defense that Sullens had failed to avail him- self of the grievance procedures provided by the contract in effect. The hearing was held at St. Louis, Missouri, on March 9 and 10, 1-970, before the Trial Examiner named above. The General Counsel and each Respondent were represented at the hearing by their respective counsel and have submitted briefs to the Trial Examiner. Upon the entire record I and from his observation of the witnesses the Trial Examiner makes the following: ceives gross revenues in excess of $50,000 for the interstate transportation of freight . It is found that Kendrick is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the National Labor Relations Act, as amended (the Act). Respondent, Lovelace Trucking Service, Incorporated, is an Indiana corporation having its principal office and place of business in Terre Haute , Indiana, and having other places of business in other States of the United States , including an office and terminal in Salem, Illinois. It is engaged in furnishing interstate and intrastate trucking services. In the course and conduct of its business operations Lovelace an- nually receives gross revenues in excess of $50 ,000 for the interstate transportation of freight. It is found that Lovelace is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the IBT), Chauf- feurs and Helpers Local No. 50 of the IBT, and Local 525 of the IBT are each a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES The principal issues litigated at the hearing were whether Kendrick's unfavorable comments on Sullen' filing of grievances, contained in a letter of reference which it sent to Lovelace, violated Section 8(a)(l) of the Act, and whether Lovelace's discharge of Sullens on the basis of the letter of reference violated Section 8(a)(1) and (3). Also at issue was whether, if the discharge was discriminatory, Kendrick was jointly severally liable with Lovelace for backpay. Both employers had had longstanding contractual relations with Locals of the IBT, and the General Counsel stated that he makes no contention that either had any general hostility towards the IBT, any of its locals, or labor organizations in general. A. Chronology 1. General Sullens was employed by Kendrick as an over-the-road driver from 1961 to October 1969. In March 1969 Respon- dent closed its terminal in Salem, Illinois, where Sullen worked, and moved the operation to Wood River and Law- renceville, Illinois. Sullens was transferred to Wood River and worked there until he quit in October in order to take a ob with Lovelace. Kendrick considered Sullens a safe and efficient driver and his general conduct was deemed sat- isfactory. FINDINGS OF FACT I THE BUSINESS OF RESPONDENTS Respondent, Kendrick Cartage Co., is an Illinois corpo- ration having its principal office and place of business in Salem, Illinois, and terminals located in Wood River and Lawrenceville, Illinois, where it is engaged in furnishing interstate and intrastate trucking services. Tn the course and conduct of its business operations, Kendrick annually re- 1 The Trial Examiner grants Kendrick's unopposed motion to correct the transcript by changing the word "conversation" on page 178, line 10, to "consideration " The correction has been made and the motion, marked Kendrick Exh. 3, has been placed in the exhibit file. 2. Sullens' grievances In 1964 Sullens, having been discharged, filed a grievance and was reinstated. The record does not show whether he was awarded backpay. In late 1964 or early 1965 Sullens was elected shop steward, a position which he retained until the termination of his employment with Kendrick. He han- dled some dozen grievances annually, including a number of grievances on his own behalf. On April 1, 1969, he filed a written grievance alleging shortages in his pay totalling $29.72. After a hearing he was awarded $10.11, which Ken- drick paid. In April 1969 he was discharged and on April 28 he filed a grievance. The grievance was upheld and Sul- lens was reinstated with full seniority and backpay, which KENDRICK CARTAGE CO. Kendrick paid. Sullens testified that on about October 16, 1969, several days after quitting his job with Kendrick, he telephoned Williams, Kendrick s safety director, to make arrangements about delivery of his final paycheck, and that in the course of the conversation he requested the vacation pay due him under the contract with the Union. Williams testified that he recalled no telephone conversation with Sullens at any time after he left Kendrick, and that he recalled no request by Sullens for vacation pay either in person or by telephone. Sullens did not testify as to Wil- liams' reply, but it is undisputed that Respondent did not pay him the vacation money due, and Sullens filed a formal grievance on October 30. On November 25 he was awarded a week's pay, amounting to $276. The Trial Examiner has credited Sullen and finds that on October 16 he demanded of Respondent that it pay him the vacation money due under its collective contract. 3. Sullens' move from Kendrick to Lovelace As the Wood River Terminal was far from his home, Sullens was on the lookout for another job. This was known to at least some of Respondent's officials. On Tuesday, October 7, Vogt, Respondent's terminal manager at Wood River, handed Sullens a slip of paper bearing Lovelace's telephone number and the name `Denny." He told Sullens that Swift, who worked for Kendnck in Salem, had in- formed him that Lovelace was in bad need of a driver at its Salem terminal. He suggested that Sullens check into it but asked him not to disclose that he had given him the tip. The same evening, after making arrangements by telephone, Sullens called at the Lovelace office in Salem and was inter- viewed by Geisler, the terminal manager. He told Geisler where he worked and that he wanted a job near home. He remarked that he did not know whether Kendrick would recommend him, but Geisler replied that Bill Kendrick, one of Kendrick's owners, had recommended him highly. He gave Sullen an employment application which Sullens filled out and brought back the next day. Geisler read the application and asked Sullens whether he had had any acci- dents. Sullens replied he remembered only one and that he had been fined $15. In fact Sullens had had several other accidents. Sullens told Geisler that he had been shop stew- ard at Kendrick and that he and Kendrick "had had prob- lems." He did not go into detail. Since Sullens was working, Geisler said that he would try to have Sprague, Lovelace s safety director, give him the necessary driving test on a Saturday. However, the next morning Vogt instructed Sullens to take a load to Salem. He said that Swift had made that arrangement because Sprague would be able to give Sullens his driving test that day. In Salem Sullens delivered his load and ultimately was intro- duced to Sprague, who took him out for a road test. Sprague commented, "You are doing a pretty good job . . . as far as I can see, there's nothing wrong with your driving." He asked why Sullens was quitting Kendrick. Sullens replied that his principal reason was that he wanted a job near home, but that-he personally had had difficulties with Ken- drick concerning the union contract. Sprague replied, "We have a contract, ... we live up to it and we expect you to." Sullens commented that he wanted to be pretty sure of a job since he could not afford to quit Kendrick's employ and then find himself without a job. Sprague assured him that so far as he knew there was nothing tolceep him from being employed by Lovelace, and he asked when Sullens could start. Sullens said that he would have to see how much notice Kendrick would require. He left Sprague and called Johnson, a dispatcher at 537 Kendrick's Wood River terminal with supervisory authori- ty. He told Johnson that he had a job with Lovelace and asked whether Kendnck required notice. Johnson replied, "We need drivers pretty bad, but if you have another job and can go to work, why, go ahead, we will get by." That evening or the next day, Friday, October 10, Sullens in- formed Vogt that he was taking the Lovelace job. On Mon- day Sullens started to work for Lovelace. 4. Kendrick's letter of reference That same day, October 13, Lovelace sent to Kendrick a form request for information about Sullens. The form set forth a series of questions and stated, "Your reply will be held in strict confidence and will in no way involve you in any responsibility." On October 28 Kendnck returned the form, filled out and signed by Chlons Williams, its safer director. Among other things the form as filled out by Wil- hams stated: 6. Was he a safe and efficient driver? Yes. Give dates of accidents in which he was involved [left blank] 9. Was his general conduct satisfactory? Yes. 10. Is he competent for the position he is seeking? Yes. On a scale of excellent, good, fair, and poor, Williams rated Sullens fair on "Quality of work," "Safety habits," and "Driving Skill," and poor on "Co-operation with others." On the one other factor listed, "Personal habits," no rating was given. The form also contained the following: Any other remarks: Employs Union To Fullest Extent On Minor Details. Appended to the form questionnaire was a hand-written sheet of paper reading as follows: Speaking as a Safety Director, Mr. Sullen was a Safe Driver. However, I was operations Manager for 5 years. Mr. Sullens Cost this Company an excessive Amount of Money by using [sic] the Union as leverage to Demand his Wishes. I have it on Record that he entered our office at nite [sic] and Riffeled [sic] through the Dispatcher File to Get evidence to help further his Standing With the Union. Also was Caught taking Gasoline from our tanks for use in.his personal car. His attitude toward an employer leaves Something to be Desired. I would not hire this man under any circumstances. On about October 28 Kendnck mailed the filled-out ques- tionnaire and the appended sheet to Lovelace, which re- ceived them one or two days later. 5. Sullens' discharge On November 3 Geisler summoned Sullens to his office. He said, "Well Charlie, I hate to tell you this, but you're done. I've got to let you go." Sullens asked why, since Geis- ler had given him to understand that he was doing a good job. Geisler replied, "You are doing a very good job, the fact of the matter, ... you are as good a driver as I have had as far as time is concerned and getting the load there and getting it back. We have had no roblems whatsoever, but you have a hell of a personnel reference." He said the ref- erence in question was from MacNamara and Crowley. Sullens protested that that firm had been out of business 10 or 12 years and added, "Besides, I never had no big trouble with McNamara and Crowley anyhow, I never filed a griev- ance there in m' life. life." Geisler said, "That and your person- nel references,' and "The fact that you had taken 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bankruptcy was the reason for discharge." It is found that there had been no reference from McNamara and Crowley. Not only had they been out of business for some years, but Lovelace's practice, so far as previous employers were con- cerned, was to contact only the last one. Sullens had filed a petition in bankruptcy . Geisler expressed regret, saying that he was sure he andySullens could have worked things out without trouble, but the decision had been made at the central office and he could do nothing since he only worked there. That same day Geisler prepared a letter for delivery to Sullens and placed a copy in Sullen's personnel file, where it was retained until subpenaed for the hearing. For reasons not disclosed it was not delivered to Sullens. The letter read as follows: P.O. Box 423 Salem, Illinois November 3, 1969 Mr. Charles E. Sullens R.R. No. 2 Salem, Illinois Dear Sir: As of today your employment with Lovelace Truck Service, Inc. is terminated. Your prior employment references are unfavorable and do not meet the requirements of Lovelace. Yours truly, Dennis Geisler Terminal Manager 6. Vogt's comments on the reference Shortly after Sullens' discharge, Yates, another Kendrick driver and a friend of Sullens, remarked to Vogt, Kendrick's terminal manager at Wood River, that he had heard that Lovelace had fired Sullens because of a bad reference. Vogt commented that he did not think Kendrick would have given the bad reference if Sullens had not " ... filed the last grievance for his vacation pay." B. Concluding Findings 1. Lovelace A salient feature of this case is that Lovelace adduced no evidence to establish its motivation in discharging Sullens; it seeks to rely primarily on Sullens' alleged misconduct proved by Kendrick. However, the issue is not the mere existence of good grounds for the discharge, but whether such grounds were what motivated Lovelace. See N.L.R.B v. Symons Manufacturing Co., 328 F.2d 835 (C.A. 7), enfg. 141 NLRB 558. The case would be most unusual where an employer's nondiscriminatory motivation for a discharge could be convincingly established without testimony of mo- tivation by his agents who made the decision. The question remains, of course, of whether the General Counsel satisfied his burden of proving by the weight of the evidence that Lovelace discharged Sullens for discriminatory reasons. The letter prepared by Lovelace for delivery to Sullens stated that he was being discharged because his prior em- ployment references were unfavorable, and Geisler told him that those references were a reason for the discharge. The only employment reference Lovelace had received was the one from Kendrick (G. C. Exh. 4) which had just been received. That reference included, among other things, the accusations, "Employs Union To Fullest Extent on Minor Details," and, "Mr. Sllens Cost this Company an excessive Amount of Money by using the Union as leverage to De- mand his Wishes" (sic). On their face both these accusations were of activities protected by Section 7 of the Act. Even the filing of unfounded grievances, unless proved malicious, is a protected activity; a fortiori, filing successful grievances, which was the main burden of these accusations, was pro- tected by the Act. The implementation of a collective-bar- gaining agreement by asserting claims under it " ... is but an extension of the concerted activity giving rise to that agreement." See Bunney Bros. Construction Company, 139 NLRB 1516, 1519. It is not material that Sullens may have filed some or all the grievances for his personal benefit. See N.L.R.B. v. Interobro Contractors Inc., 388 F.2d 495 (C.A. 2), enf. 157 NLRB 1295, where the court said: Even if it were true that John was acting for his person- al benefit, it is doubtful that a selfish motive negates the protection that the Act normally gives to Section 7 rights.... Distinguish Mushroom Transportation Company, Inc. v. N.L. R.B., 330 F.2d 683 (C.A. 3), setting aside, in relevant part, 142 NLRB 1150, where the court found that the discrimina- tee in that case had no purpose of involving fellow workers or union representation in his activity and therefore held that his activity was individual, not concerted, and thus unprotected. Indiana Gear Works, a Division of the Buehler Corporation v. N.L.R B, 371 F.2d 273 (C.A. 7) setting aside I56pNLRB 397, is similarly distinguishable. Lovelace contends that since it had no general union animus and hired Sullens knowing of his union member- ship, it cannot be found to have acted with a discriminatory motive. This contention has no merit. In The Radio Officers' Union of the Commercial Telegraphers Union, AFL v. N.L.R. B., [A. H. Bull Steamship Company], 347 U.S. 17, 45, the Supreme Court stated, referring to Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793: In holding that discharges and suspensions of employ- ees under company "no solicitation" rules for soliciting union membership, in the circumstances disclosed, vio- lated Section 8(3), we noted that such employer action was not "motivated by opposition to the particular union or, we deduce, to unionism" and that' there was no union bias or discrimination by the company in enforcing the rule." Lovelace also contends that it could not have acted discrim inatorily, since it knew no details as to Sullens' union activi- ties. This contention, too, is without merit. As the letter disclosed on its face that the unfavorable recommendation was based at least in part on concerted activities, the burden was placed upon Lovelace to come forward with evidence establishing honest belief on its part that the activities were not such as are protected by the Act. Cf. Rubin Bros. Foot- wear, Inc., 99 NLRB 610, 611, where the Board quoted with approval Mid-Continent Petroleum Corp. 54 NLRB 912, as follows: Once it is pleaded ... that the discharge was made for unlawful conduct inseparably connected with the strike, the burden was on [the employer] to show that all the stnking employees discharged therefor had, in fact, been guilty of unlawful conduct . See also N L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21 The Kendrick reference did also include accusations of actions by Sullens presumptively not within the protection KENDRICK CARTAGE CO of Section 7; i.e., being "poor" with respect to cooperation with others, taking gasoline for his personal use, and "ri- fling" papers in the dispatcher's office.2 Lovelace contends that these apparently unprotected activities of Sullens would have warranted his discharge . However, as already stated, the issue is not the mere existence of good grounds for the discharge, but whether such grounds were the moti vating cause . See N.L.R.B. v. Symons Mfg. Co., supra. More- over, even if it be assumed that the unprotected activities did play a part in motivating Lovelace, the record is barren of evidence that they were its sole motivation to the exclu- sion of the accusations in the reference as to activities pro- tected by the Act. The General Counsel proved a discrim- inatory discharge when he established prima facie that it was at least in part because of those protected activities. If the protected activities listed in the fetter of reference did not play any part in the discharge, the burden rested upon Love- ace to disentangle the various accusations and to prove that fact. This it failed to do . It is therefore found that Lovelace discharged Sullens because he had engaged in the exercise of the rights guaranteed in Section 7 of the Act and that it thereby violated Section 8(a)(1) and (3) of the Act. As stated , the above finding of a violation of Section 8(a)(1) and (3) is based on Lovelace's failure to come for- ward and meet the prima facie case of discriminatory dis- charge established by the General Counsel . However, several factors have convinced the Trial Examiner more affirmatively that Lovelace's motivation was discriminato- ry. First, whereas the termination letter prepared for deliv- ery to Sullens referred only to his employment references, Geisler gave an additional reason at the discharge inter- view ; namely, Sullens' bankruptcy .3 Lovelace's unexplained uncertainty as to what to say were the reasons for the dis- charge tended to show that it was trying to conceal its actual motivation . Second, whereas the only employment ref- erence received by Lovelace was the one from Kendrick, which referred unfavorably to his protected activities, Geis- ler told Sullens that a reference had been received from McNamara and Crowley , and he did not mention the Ken- drick reference . The inference is warranted that this un- truthful statement was part of Lovelace 's attempt to conceal from Sullens the true , union-based, reason for his dismissal. Third, and most persuasive , Lovelace, as already noted, failed to produce at the hearing a single witness who could testify as to why it discharged Sullens or who made the decision .4 Lovelace's failure to produce the officials who had actual knowledge of the circumstances of the decision to discharge Sullens and of its true motivation warrants the adverse inference that those individuals were not in a posi- tion to testify to nondiscriminatory reasons for the dis- charge which would be found to be the actual reasons and that their appearance as witnesses would result in exposure of the fact that Lovelace discharged Sullens because he engaged in activities protected by the Act. See II Wigmore on Evidence (third edition) Sec 285. Lovelace pleaded as an affirmative defense that the com- 2 The General Counsel offered no denial or explanation of the accusation in Kendrick's letter to Sullens that this was an "unauthorized trespass " 3 At the hearing Lovelace also claimed that it had received no answers to the inquiries it had sent to Sullens' three personal references The three individuals involved were good friends of Sullens and the record discloses no reason why they would have refused to give him a favorable recommenda- tion The Trial Examiner has credited their testimony and finds that they did not receive the inquiries ° Geisler, who informed Sullens of the discharge, was in the hearing room but did not testify He had been subpenaed by the General Counsel, appar- ently to authenticate a document which was ultimately authenticated by stipulation 539 plaint should be dismissed because Sullens failed to avail himself of the grievance machinery provided for in its con- tract. As no grievance was filed or processed, and as the issue involved does not fall within the special competence of an arbitrator to determine but rather is one which partic- ularly calls for resolution under the Act by the agency charged with its administration, the defense is without merit under established Board policy. See Eastern Illinois Gas and Securities Company, 175 NLRB No. 108. 2. Kendrick Williams' testimony that Sullens had helped himself to Kendrick's gasoline was undenied. That conduct was, of course, not a concerted activity, and, in the absence of evidence that Williams' action in reporting it was discrim- inatory, Respondent did not thereby interfere with any Sec- tion 7 rights. Nor did the General Counsel or Sullens offer any explanation of Kendrick's accusation, delivered to Sul- lens, that he had committed an unauthorized trespass when he pushed by the cleaning man to enter the dispatch office. While Sullens did this apparently in connection with his shop-stewardship-the reference stated that he did it "to help further his standing with the union"-Kendrick had reasonable grounds for believing that the action was illegal and unprotected, and the General Counsel did not prove the belief erroneous. Cf. N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21. By reporting the incident to Lovelace, therefore, Kendrick did not interfere with any Section 7 rights. Wil- liams testified that he rated Sullens poor with respect to "cooperation with others" on the basis of a statement by Sullens to an owner-driver that the latter would have to quit driving his own tractor and of a statement by one Vern Allen that he would take drastic action if Sullens "stayed after him." Without further explanation it is not possible to conclude whether these incidents referred to legitimate ac- tivities by Sullens as shop steward or to something else. There is not sufficient evidence that they referred to the former or have thrown on Kendrick the burden of proving that the activities in question were not legitimate activities as shop steward. Accordingly, no finding is made that Kendrick's negative report to Lovelace on "cooperation with others" violated Section 7 rights. Sullens' 1964 grievance over his discharge might seem too stale to have played any part in Kendrick's letter of ref- erence. However, the letter by its own terms gave Kendrick's opinion of Sullens based on incidents going back the length of time. While the 1964 reinstatement does not fit precisely into the specifics set forth in the letter of reference-obtaining reinstatement is no "minor detail," and the General Counsel did not establish that Sullens "cost" Kendrick any backpay as a result of that grievance-it is inferred that Sullens' use of the Union and the grievance machinery at that time were part of the basis for Kendrick's adverse report to Lovelace. Williams testified that his accu- sation that "Mr. Sullens Cost this Company an excessive Amount of Mone by Using the Union as leverage to De- mand his Wishes' referred to an unsuccessful grievance filed by Sullens to compel Kendrick to assign him to a certain truck when the regular driver was ill, instead of hiring an extra driver. He testified that he was also referring to the fact that on the occasion in question Sullens had told him and the two Kendrick brothers that "he would use any way he could to help us fire" the regular driver. The Trial Examiner has not credited this testimony. Apart from Wil- liams' unconvincing demeanor and the fact that most of this testimony was elicited through leading questions, Williams was contradicted by the fact that the grievance was unsuc- 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cessful and did not cost Kendrick any amount of money, excessive or otherwise. It is found that the accusation was made because of successful grievances filed by Sullens, in- cluding at least his own grievance for a pay shortage, as a result of which Kendrick paid him $10.11, and the grievance over his own discharge, as a result of which Kendrick paid him an unspecified amount of backpay.5 As the letter of reference was in response to Lovelace's inquiry about Sullens in connection with his application for employment, it is plain that the statement, "I would not hire this man under any circumstances," was a recommendation that he not be hired. It is also plain that the basis of the adverse recommendation was the various negative opinions expressed on the form and the appended sheet which have already been discussed. It would be superfluous to demonstrate that if General Counsel's Exhibit 4 had been an intracompan memo- randum issued in connection with an application fora pro- motion or transfer, it would have constituted an illegal restraint on Sullen' statutorily protected union activities. See Bunney Bros. Construction Company, supra, and N.L.R.B. v. Interboro Contractors, Inc., supra. The fact that the reference was written after Sullens had terminated his employment and that it was sent to another employer does not lessen such coercive effect. It is unnecessary to pass in this case on the legality of such a reference if written a substantial length of time after the severing of an employ- ment relationship. In Austin Company, 101 NLRB 1257, 1260, the Board said, .. . . we do not adopt [the Trial Examiner's] broad rationale to the effect that conduct of any employer which results in coercion of any employee necessarily constitutes an unfair labor practice." In this case, however, Kendrick gave the reference immediately after Sullens' resignation and in connection with his first subsequent job. It was so intimately connected with the severed employment that it necessarily tended to interfere with the exercise by Kendrick's employees of their rights under the Act. It is found that by sending the letter of reference to Lovelace, Kendrick violated Section 8(a)(1) of the Act. See Ordenduff & Kappel, Inc., 118 NLRB 859, 864, 881. Vogt's statement to Yates that Kendrick gave Sullens an unfavorable reference because he had filed a vacation-pay grievance was also coercive. It is not material whether his statement was accurate. As he was terminal manager and an admitted agent of Kendrick, his statement was, in effect, a threat that an employee's exercise of his statutorily protect- ed right to file grievances under an existing contract might result in an unfavorable employment reference. It is found that by such threat Kendrick coerced employees in the exer- cise of their rights under the Act and thereby violated Sec- tion 8(a)(1) of the Act. The complaint alleges that Kendrick caused Lovelace to discharge Sullens and in his brief the General Counsel con- tends that the letter of reference was an effort by Kendrick to influence the employment status of Sullens with Lovelace and that, " . . the evidence shows that Kendrick .. . intended to and succeeded in causing descrimination ... [against] Sullens and is therefore liable for the loss of any wages which resulted . . . [from] their action." The nature of Lovelace's inquiry necessarily made Kendrick aware that Sullens' employment status was under consideration by Lovelace and might be affected by its reply. However, Ken- drick did not initiate the course of events leading to Sullens' S In view of these findings, it is unnecessary to decide whether Williams, at the time he wrote the letter of reference , realized, and was influenced by, the fact that Respondent would ultimately have to satisfy Sullens' pending demand for the $276 vacation money due him under the contract discharge. It had no animus towards unions or the IBT and, so far as is disclosed by this record, was indifferent about Sullens' employment, so long as he was not employed by Kendrick. It is therefore inaccurate and misleading to char- acterize its compliance with Lovelace's request for informa- tion and appraisal as an "effort" to influence Sullens' employment status. Distinguish L.E. Schooley, Inc., 119 NLRB 1212, where an antiunion employer, after discrim- inatorily discharging an employee who had been among the active proponents of a union, aggravated the effects of such discrimination by refusing to furnish requested information to a prospective interim employer. Nor does the evidence warrant the finding that Kendrick intended to "cause" Lovelace to discharge Sullens. The decision was to be solely Lovelace's. There was no relationship between Kendrick and Lovelace on the basis of which Kendrick could exercise any kind of control, or even of influence, over whom Love- lace employed. Distinguish Looney Sheet Metal Construction Co., Inc., 160 NLRB 1635, 1649, where a discriminating employer blocked employees' subsequent employment by another employer by denying them entry to its propperty, where such subsequent employment was available. Distin- guish also, Austin Company, 101 NLRB 1257, where an em- ployer, for allegedly discriminatory reasons, exercised its contractual veto power over the employment of guards by a subcontractor. It is found that Kendrick did not cause Lovelace to discharge Sullens. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the respective activities of Kendrick and Lovelace set forth above in section III, occurring in connec- tion with their respective operations described in section I, each have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY As it has been found that Kendrick and Lovelace have engaged in certain unfair labor practices, it is recommended that the Board issue the Recommended Order set forth below requiring them to cease and desist from said unfair labor practices and to take certain affirmative action which will effectuate the policies of the Act. The record contains no evidence as to when Sullens took gasoline for his personal use, as to whether it occurred more than once, nor as to how serious an offense it was at the time. The practice had at one time been legitimate and Kendrick rated Sullens' general conduct satisfactory not- withstanding the offense. There is, therefore, no basis for finding Sullens so undesirable an employee that Lovelace's unfair labor practice in discharging him should not be fully remedied in accordance with the Board's usual policies. It is accordingly recommended that Lovelace reinstate Sullens to his formerjob or, if thatjob no longer exists, to a substan- tially equivalent position of employment, without prejudice to his seniority and other rights and privileges. It is also recommended that Lovelace make Sullen whole for any loss of earnings suffered by reason of the discrimination against him. The amount of backpay shall be a sum of money equal to what he would have earned from November 3, 1969, the date of the discrimination against him, to the date of Lovelace's offer of reinstatement, less his net earn- ings during said period, computed in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289, KENDRICK CARTAGE CO. with interest thereon at the rate of 6 percent per annum, to be computed in the manner described in Isis Plumbing & Heating Co., 138 NLRB 716. It is recommended also that Lovelace preserve and, upon request , make available to the Board and its agents seniority lists and payroll , dispatch, personnel , and other records necessary to facilitate the com- putation of backpay. Upon the basis of the foregoing findings of fact and upon the entire record in this case the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Respondents Kendrick Cartage Co., and Lovelace Truck Service, Incorporated, are each engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Kendrick and Lovelace are each, and at all times mate- rial have each been, an employer within the meaning of 541 Section 2(2) of the Act. 3. International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , Chauffeurs and Helpers, Local No. 50 of the IBT, and Local 525 of the IBT, are each a labor organization within the meaning of Section 2(5) of the Act. 4. By discriminatorily terminating the employment of Charles E . Sullens, Lovelace has engaged in, and-is en aging in, unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. By interfering with, restraining, and coercing employ- ees in the exercise of rights guaranteed in Section 7 of the Act, Kendrick and Lovelace have each enga ged in unfair labor practices within the meaning of Section 8(axl) of the Act. 6. The unfair labor practices described above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]