James Group Services, Inc.

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James Group Services, Inc. and Karen R. Boehning. Case 13-CA-13768 July 16, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On April 25, 1975, Administrative Law Judge Jer- rold H. Shapiro issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, and Respondent filed a brief in support of the Administrative Law Judge's Decision. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. Contrary to our dissenting colleague, we find abso- lutely no basis in the record for inferring that "Respondent's actions were reasonably calculated to restrain and coerce Boehning in her search for em- ployment in violation of Section 8(a)(1) of the Act." As the Administrative Law Judge correctly observed, an employer has the right to furnish an employment reference to another employer upon request, unless his purpose for doing so is to punish the employee for exercising his Section 7 rights. The Armstrong Rubber Company, Southern Division, 215 NLRB No. 122 (1974); Kendrick Cartage Co., 188 NLRB 534 (1971). In our judgment, neither the prepared statement read by Respondent to Mass nor the circumstances sur- rounding Boehning's employment history with Re- spondent provide a basis for inferring that Respondent's motive in providing the job reference was to punish Boehning for her union activities. Boehning had been legitimately discharged nearly 18 months earlier for disciplinary problems. At the time of her discharge, an unfair labor practice charge was filed alleging that her discharge was the result of her union activities. The General Counsel refused to issue a complaint on the charge. There is no evidence that during her employment Respondent ever exhib- ited animus towards Boehning on account of her union activities. Indeed, there is no evidence that Re- spondent was opposed to the Union at all. Accord- ingly, the record is completely devoid of any evi- dence which would indicate that prior to providing the employment reference in question Respondent harbored any animus towards Boehning because of her union activities. Our dissenting colleague asserts that the organiza- tional structure of Respondent's prepared statement indicates that its motive was to highlight Boehning's union activities and thereby discourage her employ- ment by Mass. We do not agree. The Administrative Law Judge found, and our dissenting colleague does not dispute, that Respondent's statement was com- pletely truthful. Boehning was involved in a union organization effort; she was discharged for "numer- ous breaches of discipline"; and she did file a charge with the Board which was dismissed as lacking in merit. In our judgment, given the total absence of any other evidence in the record to indicate animus towards Boehning, the mere fact that the real reason for her discharge was inserted between two refer- ences to union activities which had occurred more than 18 months earlier does not provide a basis for inferring that Respondent's motive was to unlawfully punish Boehning. For the foregoing reasons, we adopt the Adminis- trative Law Judge's conclusion that Respondent's employment reference to Mass did not violate Sec- tion 8(a)(1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. MEMBER FANNING, concurring in part and dissenting in part: I agree with my colleagues and the Administrative Law Judge that the General Counsel did not estab- lish that Respondent caused Mass Insurance Con- sultants and Administration, Inc. (MICA), to refuse to hire Boehning in violation of Section 8(a)(3). My agreement, however, is based not on the fact that Respondent did not attempt to cause MICA to re- fuse to hire Boehning because of her union activity and filing of charges, but on the fact that MICA, according to credited testimony, did not rely on the information concerning Boehning's union activity in rejecting her application for employment. I would find, however, as alleged in the complaint, that Respondent interfered with, coerced, and re- strained Boehning in violation of Section 8(a)(1) by advising MICA for no obvious or legitimate reason of Boehning's union activities and of her having filed a charge with the Board. My reasons follow. When asked why Boehning was terminated, Mc- 219 NLRB No. 36 JAMES GROUP SERVICES, INC. Cormick, Respondent's vice president, told Garofalo, MICA's personnel manager, in accordance with a prearranged statement decided upon by McCormick and Respondent's attorney, that: There was a union organization effort which she was involved in, along with others who were also involved, the main reason for her discharge was numerous breaches of discipline, she filed a protest with the NLRB, which was dismissed be- cause there was no basis for her complaint. Why, if Boehning was legitimately discharged for numerous breaches of discipline, which I must as- sume she was, did Respondent find it necessary to mention her union activity at all?' More significantly why did McCormick feel it necessary in giving this information first to mention Boehning's union activi- ty, only secondly and in cryptic form the legitimate reason for her discharge, and finally to revert back to her union activity or the fact she had filed a charge, unless it was to put Boehning in as bad a light as possible? Likewise why did McCormick refuse to ex- plain what the numerous breaches of discipline were although they were listed on the termination form which he had before him when Garofalo called him? 2 Why did he choose to leave the obvious im- pression that her discharge was related to union ac- tivity? The Administrative Law Judge ignored the ques- tion of why Respondent framed the reference in this manner. He also ignored the reason given by Mc- Cormick for mentioning Boehning's union activities at all. McCormick testified: I wanted to be very careful in what I said as a reference on Miss Boehning to make absolutely sure the main reason for the dismissal was num- erous breaches of discipline and didn't have any activity with the union ... . Respondent's brief is not much more enlightening on this point. It states, "To prevent a potential em- ployer from jumping to the unwarranted conclusion that since Boehning's discharge came shortly after the well publicized union organization effort [Re- spondent] must have fired her because of antiunion animus, it was decided to give information which would show that despite any claim to the contrary, Boehning had been discharged for cause." Respondent's reference is a rather unusual way to ' This information was volunteered by McCormick; Garofalo never asked anything about union activity or the NLRB. These reasons were continued tardiness, deterioration of her work, her work was accumulating and she was wasting time , and several episodes of insubordination . McCormick obviously would not have jeopardized Re- spondent in any way by simply telling Garofalo that these were the numer- ous breaches of discipline for which she was discharged 159 accomplish that end, for it seems calculated to show just the opposite of what Respondent allegedly in- tended. It is therefore my opinion that Respondent's claim of innocence and absence of unlawful intent, if in fact relevant, must be questioned, because of the very manner in which McCormick phrased his reference, which, at a minimum, indicates Respondent's desire to impress upon MICA that Boehning was a charge- filing union activist. McCormick used specific words and phrases in a specific sequence which made the reference on its face not only ambiguous but also, in fact, highlighted Boehning's union activity. The Administrative Law Judge chose to ignore the import of, and the serious questions which logically arose from, the nature of Respondent's reference. Rather, citing Armstrong Rubber Company 3 as settled law, he found that Respondent had the right to fur- nish such a reference to MICA, upon request, unless the purpose for doing so was to punish Boehning for exercising her Section 7 rights. Although I have some doubts as to how settled Armstrong Rubber is as the definitive precedent in this area, even if that test is applied I would still find an 8(a)(1) violation. For, although I am not certain as to how it is to be shown a respondent's intent was to punish its former em- ployee, surely the Board may, as is customary, rely on circumstantial evidence and reasonably drawn in- ferences and is not limited to direct evidence of an intent to punish. The Administrative Law Judge, in dismissing the 8(a)(1) allegation, also relied in part on the absence of any evidence showing animus in Respondent be- cause of Boehning's union activity or filing of charges, and in so doing deemed it relevant that Boehning had not been in Respondent's employ for a long period of time. Such criteria are irrelevant. For, even assuming, arguendo, the absence of unlawful motive,4 it is well settled that motive is not a critical element of an 8(a)(1) violation. In 8(a)(1) cases, a lesser standard is employed.' As the Board has so often said, though perhaps best in American Freight- ways Co., Inc., 124 NLRB 146 at 147 (1959): '215 NLRB No 122 (1974) (Chairman Miller and Member Kennedy; Member Jenkins dissenting) 4 Contrary to the Administrative Law Judge, I would not so readily con- cede such an absence, for it must be remembered that Boehning had been the prime spokeswoman for the Union, she had filed charges with the Board, and she had an EEOC complaint and a civil suit pending against Respondent at the time the reference was given. Moreover, when McCor- mick was called by MICA, he admittedly realized he was dealing with a problem and immediately called Respondent's attorney for advice 5 Even in 8(a)(3) cases specific evidence of intent to encourage or discour- age is not an indispensable element of proof, for "where a natural conse- quence of [the employer's] action was such encouragement or discourage- ment . . . it is presumed (the employer) intended such a consequence" Radio Officers' Union of the Commercial Telegraphers Union, AFL [Bull Steamship Co ] v NLRB , 347 U S 17 (1954) 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [T]he test of interference, restraint, and coercion under Section 8(a)(1) of the Act does not turn on the employer's motive or on whether the coer- cion succeeded or failed. The test is whether the employer engaged in conduct which, it may rea- sonably be said, tends to interfere with the free exercise of employee rights under the Act. To sum up, Respondent could have given the rea- son for Boehning's discharge by explaining she was discharged for numerous breaches of discipline and could have further explained what these breaches were without mentioning her union activity. If it was really concerned, for whatever reason, about making it clear she was not discharged for union activity as it claims, it could have made it clear what her discharge was for and then, upon request or otherwise, men- tioned her union activity and indicated such activity played no part in her discharge. But it did not; in- stead it gave a cryptic and ambiguous reference which in fact highlighted her union activity and the fact that she filed a charge with the Board. Assuming that the Board still has the authority to draw reason- able inferences from the evidence, on this record no other inference can be drawn than that Respondent's actions were reasonably calculated to restrain and coerce Boehning in her search for employment in vi- olation of Section 8(a)(1) of the Act. I do not believe Respondent's actions should be condoned or that any employer should be given the opportunity so to disregard an employee's Section 7 rights. I would find the 8(a)(1) violation, and issue a cease-and-de- sist order. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: The hearing in this case held on March 24, 1975, is based on unfair labor practice charges filed by Karen R. Boehning on November 18, 1974, and a complaint issued on January 31, 1975, on behalf of the General Counsel of the National Labor Relations Board , herein called the Board, by the Regional Director of the Board, Region 13, alleging that James Group Services, Inc., herein called Respondent, has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act. Respondent filed an answer de- nying the commission of the alleged unfair labor practices. Upon the entire record, from my observation of the de- meanor of the witnesses, and having considered the post- hearing briefs submitted by Respondent and General Counsel, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent, James Group Services, Inc.,' formerly known as Joseph K. Dennis Company, Inc., is an Illinois corporation with its principal office and place of business in Chicago, Illinois, where it is engaged in the insurance brokerage business . Its annual gross volume of business exceeds $500,000 and it annually ships goods and performs services outside the State of Illinois, valued in excess of $50,000. Respondent admits it is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and I find it will effectuate the policies of the Act for the Board to assert jurisdiction over this matter. II. THE LABOR ORGANIZATION INVOLVED The Respondent admits, and I find, that the Union in- volved herein, the Communication Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Karen Boehning, the Charging Party, was employed as a claims adjuster by Respondent from April 1972 until June 6, 1973, when she was discharged. At the time of her dis- charge she was the most active union adherent-the spokeswoman for the prounion employees-in the Union's effort to organize Respondent's employees. The Union filed an unfair labor practice charge with the Board's Re- gional Office alleging in substance that Boehning was dis- charged and denied severance pay because of her union activities. The charge was investigated and dismissed by the Board's Regional Director as lacking in merit. In November 1974 Boehning applied for a job as a claims examiner with Mass Insurance Consultants and Ad- ministration, Inc., herein called Mass . The job advertised by Mass was almost identical to Boehning's job with Re- spondent. Mass requested reference information from Re- spondent about Boehning's employment. In response Re- spondent stated that Boehning had been discharged for numerous breaches of discipline and also brought to Mass' attention the facts that Boehning had been involved in union activities and had filed a protest with the Board over her discharge. Mass refused to hire Boehning because of the Respondent's reference. The complaint alleges essen- tially that Respondent violated the Act in two respects: (1) by advising Mass that Boehning had engaged in union ac- tivities while employed by Respondent and had filed an unfair labor practice charge with the Board over her dis- charge, and (2) by causing Mass to refuse to hire Boehning. The essential facts are set out herein. At the time of Boehning's discharge-June 6, 1973-Re- ' As amended at the heanng JAMES GROUP SERVICES, INC. spondent knew she was actively involved in the Union's organizational campaign . There is no evidence that Re- spondent was hostile toward its employees who supported the Union or that Respondent voiced opposition toward the Union. Specifically, there is a lack of evidence of ani- mus or hostility by Respondent toward Boehning because of her union activities or sympathies. There is no conten- tion or evidence that Boehning's union activities or union sympathies either in whole or in part caused her discharge. Quite the contrary, the record demonstrates Boehning was discharged for legitimate business considerations. Respondent's "Payroll Change Voucher" for Boehning, herein referred to as Boehning's "termination record," made out by Respondent at the time Boehning was termi- nated, states tha Boehning was discharged after a warning for the following reasons: "After repeated warnings re- garding her tardiness she continued to come to work late and made no effort to correct the situation. Her work in the few months has also deteriorated. She allowed work to accumulate and was not completing or receiving her jobs. Observed wasting hours at a time. Also, several episodes of insubordination." The "termination record" also describes Boehning's "character of service" as: work and conduct poor, ability good, and attendance fair. No evidence was adduced to controvert either the misconduct attributed to Boehning or the description of her "character of service," as described, in the termination report. The union filed an unfair labor practice charge challeng- ing the legality of Boehning's discharge which the Board's Regional Director, after investigation, dismissed. In addi- tion, Boehning filed a complaint with the EEOC charging Respondent with certain violations of Title VII and also filed a civil suit against Respondent claiming certain insur- ance benefits. The EEOC complaint and the law suit, which arose out of the circumstances surrounding Boehning's discharge, were still pending when Boehning applied for a job with Mass. Between the date of her discharge by Respondent and November 4, 1974, when Boehning applied for a job as a claims examiner with Mass she had not worked in the in- surance industry . On November 4 Boehning filled out an employment application, took a written examination, and was interviewed by a claim's department supervisor and by Mass' personnel manager, Angela Garofalo. Garofalo was pleased with Boehning and thought she stood a very good chance of being hired and, with this in mind, established that Boehning was available to start work that week, on November 7, and gave Boehning a copy of Mass' employee handbook. At the conclusion of the interview Garofalo de- cided to recommend to the claim's department supervisor that Boehning be hired provided that an investigation of Boehning's previous employment history did not change the favorable picture . Since Garofalo's recommendations are always followed, it is clear that if Boehning's references were satisfactory she would have started to work for Mass on November 7. This is in effect what Garofalo indicated at the conclusion of the interview. She stated that Boehn- ing had a very good chance of being hired and all that Garofalo had to do was investigate her references. It was arranged that Boehning would phone Garofalo the next morning, November 5, to learn whether she had the job. 161 The two most recent employers she had worked for in the insurance industry listed by Boehning on her employ- ment application were Respondent and C.D. Heile & Co., an employer whom she had been employed by from June 1970 through February 1972. On the morning of Novem- ber 5 Garofalo phoned these employers to secure informa- tion about Boehning. The person who handled such mat- ters for Heile & Co. was not available and never returned her call. Garofalo did speak to the person who handles Respondent's references, John McCormick, its administra- tive vice president. Garofalo introduced himself to McCor- mick and requested reference information about Boehning. McCormick, following his company's normal procedure, took Garofalo's phone number and stated he would return her call which he did after a lapse of about 45 minutes. In the meantime McCormick got Boehning's personnel file and realizing Respondent had been the subject of law suits and an unfair labor practice charge filed by Boehning, all of which are described above, some of which were still pending, McCormick decided to phone Respondent's law firm for advice. He spoke to Attorney James Flanagan and told him he had received a request for reference informa- tion about a former employee, Karen Boehning, who had filed certain legal actions against Respondent and that be- cause of this McCormick was concerned lest he err in in- forming other employers about Boehning. McCormick asked for Flanagan's advice. They briefly discussed the liti- gation filed by Boehning as well as the information con- tained in Boehning's "termination record" which, as de- scribed in detail above, indicates the reasons for Boehning's discharge and the "character of her employ- ment" with Respondent? The discussion concluded with a decision that McCormick would inform any prospective employer requesting information about Boehning that: There was a union organization effort which [Boehn- ing] was involved in, along with others who were also involved, the main reason for her discharge was num- erous breaches of discipline, she filed a protest with the NLRB, which was dismissed because there was no basis to her complaint. McCormick then telephoned Garofalo and explained that although he was not employed during Boehning's ten- ure of employment he would furnish information from Boehning's personnel file. Garofalo, using a printed form entitled "telephone reference check-up form" which she normally used to check references, asked a series of ques- tions about Boehning's dates of employment, her salary, and the nature of her job, which McCormick answered accurately. Garofalo still reading from the printed form then asked for the reason Boehning left the employ of Re- spondent. McCormick in response read verbatim from the prepared statement, described above, which had been pre- viously drafted by himself and Attorney Flanagan. In an- swer to Garofalo's next question McCormick stated that Boehning was not eligible for reemployment. When Garo- falo then asked whether Boehning's work was satisfactory, McCormick reading from that part of Boehning's termina- 2 McCormick lacked personal knowledge of Boehning's employment his- tory since he was not employed during Boehning's tenure of employment. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion record which described her "character of service" truthfully stated that Boehning's work and conduct was poor, ability good, and attendance was fair. At some point during this conversation Garofalo attempted to get more detailed information about the main reason given for Boehning's discharge, namely the "numerous breaches of discipline." She asked McCormick to elaborate on this sub- ject. McCormick answered that he could not be any more specific, stating that he was not free to explain in detail the nature of this misconduct .3 Garofalo, as described above, filled out the "telephone reference check-up form" with the information received from McCormick. Normally the next step in the employ- ment process would have been for Garofalo to have taken all of the information she had acquired (application, test results, and "reference check-up form") and meet with the supervisor in the claims department under whose supervi- sion the applicant would work. On this occasion Garofalo deviated from this procedure. Because McCormick had re- fused to explain Boehning's "numerous breaches of disci- pline" Garofalo felt that the reference was "inconclusive" and decided to seek the advice of her immediate supervi- sor, Kenneth Krispi, the director of personnel.4 Garofalo handed Krispi the completed "reference check-up form" and told him that McCormick had been unwilling to pro- vide the details about Boehning's "numerous breaches of discipline." The fact that McCormick had told Garofalo that Boehning had engaged in activities on behalf of the Union and had filed a protest over her discharge with the Board although noted on the "reference check-up form" and mentioned by Garofalo to Krispi was not discussed. The discussion centered solely on the fact that McCormick had stated that Boehning had been guilty of "numerous breaches of discipline." Garofalo and Krispi finally decid- ed that it would be unwise to take a chance in hiring Boehning because of the "numerous breaches of disci- pline" attributed to her.5 J The November 5 phone conversation between McCormick and Garo- falo is based on the credible testimony of McCormick which is consistent with the testimony of Garofalo on all material points except in one respect, namely, the nature of McCormick's answer when Garofalo asked about the "numerous breaches of discipline." Garofalo, whom I credit, testified that McCormick stated he was not free to explain the nature of the misconduct. McCormick initially testified he told Garofalo he was unable to clarify this matter because he was not employed at the time of Boehning's discharge. Later during the hearing McCormick admitted that, "numerous breaches of discipline," was merely descriptive of the details of Boehning's discharge which were set out at the bottom of the termination report, which, as de- scribed above, McCormick had referred to in replying to Garofalo's ques- tions. When asked why he had not simply read the discharge explanation set out on the termination report, McCormick, in substance, testified he wanted to keep what he stated about Boehning's discharge to a minimum and did not want to get involved in any more of an explanation for the discharge than what had been agreed upon between McCormick and the Respondent's attorney. ° Garofalo faced an unusual situation since this was the first time in her experience that a former employer had refused to explain in detail its rea- sons for discharging an employee. 5 The description of the discussion between Garofalo and Krispi which resulted in the decision not to hire Boehning is based on a composite of their credible testimony. I realize that near the end of her testimony of this subject that Garofalo indicated she did not recall what she said to Krispi. Nevertheless, I am convinced from Garofalo's prior testimony about the meeting which was substantially corroborated by Krispi' s credible testimo- ny, that what occurred between them on November 5 is as described above Later that morning, as previously arranged, Boehning phoned Garofalo about her application for employment and was notified that her application had been rejected because of negative reference information. When Boehning asked if the poor reference was the reason for the refusal to hire her, Garofalo answered in the affirmative. Boehning immediately communicated this information to Donna Pederson, a very good friend with whom she shared an apartment. Pederson suggested that she phone Respondent to determine the type of a reference it had given Boehning. Boehning agreed to this stratagem. Pederson phoned Respondent posing as a personnel clerk from a local insurance company-Kemper Insur- ance-and asked for reference information about Boehn- ing. Pederson was referred to McCormick. It is undisputed that in response to Pederson's inquiries that McCormick furnished the dates of Boehning's employment, her month- ly salary, and the fact that she had been discharged. In dispute are McCormick's answers when Pederson asked for the reason Boehning was discharged and about Boehning's work record or work habits. Pederson testified that McCormick explained the dis- charge in these terms: "There was a union organizing at- tempt in this office and she was involved in it. There were other people involved and for that reason and for numer- ous breaches of discipline she was dismissed/fired." On the other hand McCormick testified he read verbatim the lan- guage described above, that had been drafted by himself and Respondent's attorney. Following the explanation given by McCormick for Boehning's discharge Pederson asked about either Boehning's work habits or work record. According to Ped- erson, in response, McCormick simply answered that Boehning had a "fair" work record. McCormick testified that he answered this question by reading verbatim from the portion of Boehning's "termination record" entitled "character of service" and stated that her work and con- duct was poor, that her ability was good and attendance fair. I am inclined, on balance, to find McCormick's version more credible than Pederson's. Neither one impressed me as more or less trustworthy than the other. Both were not disinterested parties. McCormick was the principal repre- sentative of Respondent and Pederson was a very close friend of the Charging Party at whose suggestion this phone call was placed presumably to help her friend. The circumstances, however, make McCormick's version more probable than Pederson's. McCormick's version is consis- tent with the reference he gave Mass earlier that same day. And it does not ring true that McCormick in answer to Pederson's inquiry would say that Boehning's work record was "fair" when he had Boehning's "termination record" in front of him which on its face indicated that her conduct and work was poor, ability good and attendance fair. That same day, November 5, later in the afternoon Boehning phoned Garofalo and asked what kind of refer- ence information she had received from Respondent. Ga- rofalo stated there was a policy of confidentiality regarding references so she could not release this information. JAMES GROUP SERVICES, INC. 163 Boehning stated that a friend had phoned Respondent re- questing reference information about Boehning and the in- formation furnished was, in Boehning's opinion, unfair, and asked if Garofalo would consider her for the job if she could straighten out the matter . Garofalo replied that Re- spondent had decided it was not going to hire Boehning. B. Ultimate Findings and Analysis Respondent discharged Boehning for multiple reasons: tardiness, unsatisfactory work, and insubordination. She applied for a job about 1- 1/2 years later with Mass which called Respondent for a reference and, Respondent's rep- resentative in response to inquiries from Mass' representa- tive stated that the main reason for Boehning's discharge was "numerous breaches of discipline" and that in general her work and conduct was poor, ability good, and atten- dance fair. These were truthful representations. Respondent's representative, in addition, truthfully volun- teered that Boehning was involved in union activities while employed by Respondent and had filed a protest with the Board over her discharge, which the Board dismissed. Mass refused to hire Boehning because of Respondent's reference. The complaint, in essence, alleges that in telling Mass that Boehning was prounion and had filed an unfair labor practice charge with the Board over her discharge, that Respondent engaged in conduct calculated to restrain and coerce its employees in the exercise of their Section 7 rights, thus violating Section 8(a)(1) of the Act. In this re- gard, where, as here, Respondent is accused of violating Section 8(a)(1) by sending to another employer, Mass, an unfavorable employment reference involving a prounion employee, the law is settled that Respondent had the right to furnish an employment reference to Mass, upon request, unless its purpose for doing so was to punish Boehning for exercising her rights guaranteed by Section 7 of the Act. The Armstrong Rubber Company, 215 NLRB No. 122, fn. 1 (1974). The complaint, in essence, further alleges that Respon- dent by the aforesaid conduct caused Mass to refuse to hire Boehning thus violating Section 8(a)(3) of the Act. Whether this type of conduct constitutes an independent violation of Section 8(a)(3), as distinct from 8(a)(1), de- pends on the ability of the General Counsel to establish that if Mass were before the Board in this case as a party respondent that its refusal to hire Boehning would consti- tute a violation of Section 8(a)(3). L.E. Schooley, Inc., 119 NLRB 1212, 1213 (1958). I am of the opinion that , for purposes of the independent violation of Section 8(a)(1), the evidence is not sufficient to establish that in furnishing the employment reference it was Respondent's intent to punish Boehning for exercising her Section 7 rights. Boehning had been discharged for legitimate reasons and the reference accurately informed Mass this was the case. Respondent would have been lying, if in response to Mass' inquiry it had pictured Boehning as a satisfactory employee, when it is undisputed that she was discharged for numerous breaches of discipline. In addi- tion, there is a complete lack of circumstantial evidence which indicates that Respondent used its justifiable rea- sons for furnishing a poor reference as a pretext to discrim- inate against Boehning because of her union activities or because a charge had been filed with the Board on her behalf. Boehning had not worked for Respondent for al- most 1-1/2 years and there is no evidence that during her employment Respondent ever exhibited animus toward Boehning because of her union activities or that Respon- dent even generally voiced opposition to the Union. Nor is there evidence that Respondent voiced hostility toward Boehning over the charge filed with the Board which pro- tested her discharge. For all of these reasons, I find, the General Counsel has failed to establish by a preponder- ance of the evidence that Respondent violated Section 8(a)(1) of the Act, as alleged in the complaint. In reaching this conclusion I have considered that McCormick rather than explain in detail the conduct which resulted in Boehning's discharge summarized it in terms of "numerous breaches of discipline" and chose to volunteer the fact that Boehning had engaged in union activities. This conduct is not sufficient, in my opinion, to establish that Mc- Cormick's reference information was designed or calculat- ed to punish Boehning because of her union activities. In any event, McCormick's explanation for his refusal to clar- ify "numerous breaches of discipline" is not unreasonable. He testified, as found previously, that his refusal to go into specifics of the discharge was motivated by his desire to keep what he stated about Boehning's discharge to a mini- mum as had been agreed upon between McCormick and Respondent's attorney. And the reference to Boehning's union activities was intimately related to the circumstances surrounding Boehning's discharge inasmuch as the Union had filed a charge with the Board accusing Respondent of discharging her because of her union activities. Regarding the alleged violation of Section 8(a)(3) the record shows that in rejecting Boehning's employment ap- plication Mass acted only for the reason that Boehning had been discharged by Respondent for legitimate business reasons. The controverted testimony of Garofalo and Kris- pi is that the decision to reject Boehning's application was based solely on the fact that the main reason for her dis- charge by Respondent was "numerous breaches of disci- pline." Their testimony was not contradicted by other rec- ord evidence. To the contrary, it is bolstered by the lack of evidence of union animus on the part of Mass . On these facts, I cannot ascribe either actual or presumed unlawful intent to Mass, and I find that the record does not establish that Respondent as alleged in the complaint violated Sec- tion 8(a)(3). [Recommended Order dismissing complaint omitted from publication.]