The Armstrong Rubber Co.

620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Armstrong Rubber Company, Southern Division and Thomas R. Huseman. Case 15-CA-5206 December 13, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 25, 1974, Administrative Law Judge Milton Janus issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the 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.' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. MEMBER JENKINS, dissenting: The Board recently found that this Respondent vi- olated Section 8(a)(3) and (1) of the Act by accelerating the termination of Huseman's employment and not continuing his employment because of his union or concerted activity.' Because of Respondent's unlawful actions, Huseman was compelled to seek other employ- ment, and applied for a job with GAC, a finance com- I dissenting colleague says that "an employer has a right to furnish an employment reference to another employer upon request, unless his purpose for doing so is to punish an employee for exercising his Section 7 rights." With this statement we agree . However, he goes on to conclude that this was Respondent's purpose in informing GAC that Huseman was pro- union . With this conclusion, we disagree. The Administrative Law Judge found that there was some uncertainty as to exactly how Respondent's personnel representative, Byrnes, responded to GAC Representative Gingold's request for reference information as to Huseman. However, he credited Gingold's testimony that Byrnes had given Huseman a good recommendation and had not tried to discourage him from hiring Huseman . Nor did Byrnes' response to Gingold 's inquiries in fact have any impact upon GAC's decision to employ Huseman. Under these circumstances, the dissent's conclusion that Respondent's responses to GAC were calculated to interfere with, restrain, and coerce Huseman in seeking employment is not warranted. 2 The Armstrong Rubber Company, Southern Division, 209 NLRB 1 (1974). pany. GAC called Respondent for a reference and, according to the credited testimony, Respondent's rep- resentative stated that Respondent considered Huse- man to be prounion. My colleagues do not find this action to violate Section 8(a)(1) and I dissent from their conclusion. Certainly an employer has a right to furnish an em- ployment reference to another employer upon request, unless his purpose for doing so is to punish an employee for exercising his Section 7 rights. Where, as here, the Respondent had clearly demonstrated its animus to- ward Huseman, unlawfully refused to continue his em- ployment because of his union activities thug causing him to seek other employment, and volunteered to a prospective employer that it considered Huseman to be prounion, it is clear to me that Respondent's statements to GAC were reasonably calculated to interfere with, restrain, and coerce Huseman in seeking employment, and that Respondent thereby violated Section 8(a)(1). 3 Orenduff & Koppel, Inc., 118 NLRB 859 (1957). The Administrative Law Judge , in dismissing the complaint in the instant case, relied on Ken- drick Cartage Co. and Lovelace Truck Service, Incorporated, 188 NLRB 534 (1971), in which I also dissented , wherein the majority found that an em- ployer's reference letter, which contained unfavorable information concern- ing a former employee in whom the employer had no further interest, did not violate Sec. 8 (a)(1). In that case , the employee had voluntarily quit his job with the former employer . In the instant case , in view of Respondent's demonstrated animus toward Huseman, evidenced by the findings that it violated Sec . 8(a)(3) and (1) with respect to his employment , and the remedial provisions presently outstanding, it can hardly be said that Re- spondent had no further interest in Huseman. DECISION STATEMENT OF THE CASE MILTON JANUS, Administrative Law Judge: The General Counsel issued his complaint in this proceeding on April 26, 1974, after a charge filed on April 1, 1974. The complaint alleges that on or about January 2, 1974, Respondent, by its agent, Charles R. Byrnes, violated Section 8(a)(1) by inform- ing a prospective employer of Thomas R. Huseman (the Charging Party) that it would not rehire him because of his prounion sentiments and/or his support of the Union (United Rubber, Cork, Linoleum and Plastic Workers of America, Local No. 303, AFL-CIO). I held a hearing in this matter on May 21, 1974, at Nat- chez, Mississippi, at which all parties were represented. A brief has been submitted timely by the General Counsel. Upon the entire record in the case, including my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is engaged in the manufacture of automobile and truck tires at its plant located in Natchez, Mississippi. During the 12-month period preceding the issuance of the complaint, Respondent manufactured, sold, and shipped 215 NLRB No. 122 ARMSTRONG RUBBER COMPANY goods valued in excess of $50,000 from its Natchez plant directly to points located outside the State of Mississippi. During the same period , it purchased and received goods valued in excess of $50,000 at its Natchez plant from outside the State . Respondent admits, and I find , that it is engaged in commerce within Section 2(6) and (7) of the Act. Il THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. Ill THE UNFAIR LABOR PRACTICES A. Background This case is an aftermath of an earlier Board proceeding involving the same parties. Huseman, the Charging Party in this, as in the earlier case, had been employed by Armstrong as a temporary employee between October 1972 and Febru- ary 1973, when he was terminated He filed a charge, and on April 20, 1973, the Regional Director for Region 15 issued his complaint, alleging that Huseman had been terminated because of his activities on behalf of the Union.' After a hearing, Administrative Law Judge Harper issued his deci- sion on July 31, 1973, finding that Armstrong had "ac- celerated the termination of Huseman's temporary assign- ment as a tire adjustor because of Huseman's interest and activity in the Union in violation of Section 8(a)(1) and, (3) of the Act." His decision recommended that Armstrong rein- state Huseman and make him whole for earnings lost since February 16, 1973, the effective date of his termination. Armstrong refused to comply with the Administrative Law Judge's Decision and filed exceptions to it with the Board. In the meantime, Huseman sought other employment and found a job with a finance company in Natchez. He worked there for a while, and then applied, late in December 1973, for a job with another finance company, GAC, also in Natchez. G;_ old, the GAC branch manager, hired Huseman on December 31, and told him to report for work on January 2, 1974 Thus, as of that date, the situtation was that Arm- strong's exceptions to the Administrative Law Judge's Deci- sion ordering it to reinstate Huseman were pending before the Board.' The instant case arises from a telephone conversation relat- ing to Huseman's application for employment with GAC, between Gingold of GAC and Byrnes, an assistant industrial relations manager for Armstrong. B. The Telephone Conversation on January 2 GAC has an internal office procedure to follow in consider- ing applications for employment. It involves calling the ap- ' Huseman had been employed as one of 3 or 4 tire adjustors, a job classification not included in the production and maintenance unit, consist- ing of about 1,100 employees, which the Union has represented for many years 2 Subsequently , on February 13, 1974, the Board issued a Decision and Order affirming the Administrative Law Judge 's findings and adopting his recommended Order The Armstrong Rubber Company, 209 NLRB I The Company has since appealed the Board 's Decision and Order to the court of appeals where it is now pending 621 plicant's previous employers and asking them 11 questions, set out on a printed form, and recording their answers The questions cover such matters as the dates of the applicant's employment, the jobs he held, his earnings, his work record, etc. The last two questions are "10. Why did he leave your company?" and "11 Would you re-employ him?" It is the branch manager's responsibility to decide whom to employ, but the completed form is then sent to the GAC home office On January 2, after Huseman reported for work, Gingold telephoned the Company to inquire about Huseman's previ- ous employment there, and was referred to Byrnes in the personnel office. According to Gingold, their conversation lasted no longer than 3 to 5 minutes, no more than it would take him to read off the 11 questions and to record Byrnes' answers' As to question 10, Gingold put down "Temp. em- ployment" and as to 11, he wrote down, "No-due to reason of his being pro union " It is the General Counsel's conten- tion that the last entry is an almost exact direct quotation of what Byrnes told Gingold, and that the statement constitutes a violation of Section 8(a)(1). The Company denies that Byrnes made the statement attributed to him by Gingold, and that what Byrnes in fact did, in response to the question of whether Armstrong would reemploy Huseman, was to tell Gingold briefly what the status of Huseman's case against it was of that date.' Whatever it was that Byrnes told Gingold, it had no effect on Huseman's employment at GAC, and, as of the date of this hearing, he was still working there. Gingold testified that Huseman's union activities at Armstrong played no part in his decision to employ or retain Huseman, and he had known when he hired Huseman that the latter had a case pending against Armstrong, although he did not know exactly what it related to. Gingold's testimony as to his telephone conversation with Byrnes on direct examination is short enough to quote in full: I asked him why he [Huseman] left the Company and he [Byrnes] stated it was temporary employment. Then I asked him if they would rehire Mr. Huseman, and he said the position that he held had been liquidated or they didn't have that position in that department any more. And I said, "Well, if he came to you for a job and put in an application, if you had an opening would you hire him?" And he said no because he was prounion. On cross-examination, Gingold denied that he and Byrnes had discussed Huseman's NLRB case, or that Byrnes had said there was such a case pending and that the Company might have to reemploy Huseman. Gingold said that Byrnes had given Huseman a good recommendation and had not tried to discourage him for hiring Huseman Byrnes' version of the same conversation is that after fin- ishing the first nine questions, Gingold asked him No. 10, "Why did he leave your company?", and that Byrnes an- swered that Huseman was a temporary employee, at which Gingold asked if Huseman would be coming back to work at J The form with the printed questions and Byrnes' answers, as recorded by Gingold, is in evidence as General Counsel's Exhibit 2 Later that day, Huseman saw the completed form on Gingold's desk and read it He asked and was given permission to make a copy of it It became the basis of his charge to the Board on April 1, which led to this proceeding 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Armstrong. Byrnes testified that he did not know whether Gingold was asking if Huseman would be coming back as a temporary employee, or was referring to Huseman 's pending NLRB case. Byrnes said he then explained the status of that case, that Armstrong had lost in the initial stage but was appealing, and that if it lost the appeal the Company would offer Huseman reemployment at his old job. Byrnes also said that he did not tell Gingold that Armstrong would not rehire Huseman, but only that his application for employment would be considered if the Company won its appeal.' Byrnes estimated that the conversation lasted 7 or 8 minutes. Martello, a cost accountant for the Company, happened to be in Byrnes' office when Gingold called on January 2, and thus overheard one end of the conversation . He corroborated Byrnes' version , specifically that he had said he might have to rehire Huseman if the Company lost its appeal. It seems unlikely that Byrnes would have been as terse, in responding to Gingold 's inquiries about why Huseman had left and what his chances of reemployment were, as the an- swers to questions 10 and 11 would indicate. Huseman was involved, after all, in prosecuting an action against Arm- strong, and it would be natural for Byrnes to offer some statement as to Armstrong 's possible obligation to him in the future I find that Byrnes did mention the NLRB proceeding to Gingold , but that the latter disregarded it, preferring to compress Byrnes' explanation into what he regarded as the most salient point-that Huseman was prounion . However, I also credit Gingold that Byrnes did say , at some point in their conversation, that the Company considered Huseman to be prounion. Concluding Findings The General Counsel does not characterize Respondent's answer to Gingold 's question 11 as a "blacklist," although Respondent at the hearing forehandedly argued that it was not. Obviously it was not in the classic mode of blacklisting as it was practiced in the early decades of this century Past and present methods of making an employee's prounion atti- tudes known among employers are described in the following definition found in Roberts ' Dictionary of Industrial Rela- tions. BNA (Rev. ed 1971): Blacklist-A procedure whereby employers or employ- ers' associations circulated the name or names of 'un- desirable' employees, mostly those who were active union men, 'disrupters' or 'outside agitators.' Such em- ployees had a difficult time finding employment at their usual occupation in their locality. With the growth and wider acceptance of unionism, this practice is becoming outmoded . In practice, of course, it is difficult to prevent the exchange of information from personnel office to personnel office which may affect the employment of a person . Discrimination because of union membership or activity is now subject to unfair labor charges under federal, state and territorial laws . 5 Byrnes went over the January 2 conversation twice in his direct exami- nation, and the above is a summary of both versions , which are basically consistent Board cases on "the exchange of information from person- nel office to personnel office" are sparse. The General Coun- sel has referred me to one such , Orenduff & Kappel, Inc., 118 NLRB 859 (1957), and my own research has led me to another , Kendrick Cartage Co. and Lovelace Truck Service, Inc., 188 NLRB 534 ( 1971) In the Orenduffcase, supra, 864, fn. 8, the Board adopted a Trial Examiner's finding that the respondent employer had violated Section 8(a)(1) when its personnel manager informed a personnel clerk of another company that two of its former employees who were applying there had been engaged in union activities at its plant, and advised against hiring them . The Trial Examiner had found that this did not amount to "blacklisting" in the old sense of the term, as the complaint had alleged, but that it was nonetheless reasonably calculated to interfere with, restrain, and coerce its two former employees in their search for new employment, despite the fact that the two applicants had been offered employment by the company even after their former employer had given them a bad reference. To be contrasted with Orenduff is the Kendrick case, supra. In that case, employee Sullens had voluntarily quit his employment with Kendrick and had gone to work for Love- lace. The Board summarized the ensuring events as follows: On the same day of Sullens' hire, Lovelace requested and subsequently received from Kendrick a letter of reference concerning Sullens. The letter contained, in addition to the usual job ratings, comments concerning Sullens' involvement in union and Section 7 activities while employed by Kendrick . It also included several unfavorable remarks with regard to Sullens' character and his conduct as an employee-remarks unconnected with his union or grievance activities which could consti- tute valid and lawful grounds for discharge . The letter concluded with the statement that "I would not hire this man under any circumstances ." Lovelace terminated Sullens because the letter was a "hell of a personal refer- ence" and because of Sullens' "history of bankruptcy." (At 534 ) Thereafter, there occurred the following event, as de- scribed by the Trial Examiner: Shortly after Sullens' discharge, Yates, another Ken- drick 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." (At 538 ) The Board affirmed the Trial Examiner's finding that, as to the latter incident , Kendrick violated Section 8(a)(1) "by indirectly threatening one of its employees with an unfavora- ble employment reference in the event he filed grievances under the existing collective-bargaining agreement." (At 534.)6 The Board, however, reversed the Trial Examiner's 6 See also Hertzka and Knowles, 206 NLRB 191 (1973), Texas Transport & Terminal Co, Inc, 187 NLRB 466, 467 (1970), and The Coca-Cola Bottling Company of San Mateo, 188 NLRB 590, 596 ( 1971), in which the (Continued) ARMSTRONG RUBBER COMPANY finding that Kendrick's letter of reference to Lovelace con- cerning Sullens was also in violation of Section 8(a)(1). It found that even though the letter had commented on Sullens' filing what it considered to be excessive or unjustified griev- ances under the contract, it was not violative of Section 8(a)(1) for Kendrick to send it to Sullens' new employer The Board reasoned (Member Jenkins dissenting on this point) that Kendrick's letter of reference was a disclosure of the unfavorable as well as the favorable personal and other char- acteristics of a former employee in whom Kendrick had no further interest, and that it was not so intimately connected with Sullens' severed employment as to tend to interfere with the exercise of the Section 7 rights of Kendrick's employees. The Board's decision in Kendrick does not attempt to rec- oncile or distinguish Orenduffdespite the similarities in their facts and the difference in their holdings. In both cases, ex- employees were given bad references-in Orenduff solely because they had engaged in protected activities, and in Ken- drick, partly for similar activities. In both cases, the Board found that the bad references as to protected activities had not affected the new employer's decision either to hire or to discharge the applicant. Yet in Orenduffthe bad reference was found to have interfered with, restrained, and coerced the applicants in seeking employment, while in Kendrick the bad reference was held not to tend to interfere with the exercise of its own employees' Section 7 rights Nothing is said in the majority opinion in Kendrick as to whether the bad reference might tend to interfere with Sullens' own search for employ- ment, although the dissent said it would. The applicants in both Orenduffand Kendrick had not left their previous employment because of discrimination prac- tices against them, whereas in the instant case, it is estab- lished that Armstrong had terminated Huseman for engaging in protected activities. Is that a significant difference between Kendrick and this case? I do not think so. In Kendrick the former employer, although it had not discharged Sullens for engaging in protected activities, had in effect threatened its employees that filing grievances might Board found to be violative of Sec 8(a)(1) statements by employers to their employees that unionization might impair their prospects for employment elsewhere 623 result in a bad reference to future employers. Although the Board found this to be a violation of Section 8(a)(1), it never- theless found that the former employer had not also violated Section 8(a)(1) in stating that it would not rehire Sullens under any circumstances, and including among the reasons for its decision a consideration clearly protected under Sec- tion 7, the filing of grievances under a collective-bargaining agreement. Thus, here as in Kendrick, the former employer (Armstrong) had committed a violation of the Act which was closely related to the information it gave the new employer (GAC), yet in Kendrick the bad reference itself was held not to be a violation of the Act. Since Kendrick is the latest Board pronouncement on what a former employer may say about its intention not to rehire an ex-employee who had been engaged in protected activities while working for it, I consider myself bound by that case and I shall therefore recommend dismissal of the complaint. CONCLUSIONS OF LAW 1. The Armstrong Rubber Company, Southern Division, is an employer engaged in commerce and in activities affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Rubber, Cork, Linoleum and Plastic Workers of America, Local No 303, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3 The Respondent has not engaged in any unfair labor practices alleged in the complaint. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER7 It is hereby recommended that the complaint be dismissed in its entirety 7 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes