James Group Services, Inc.

National Labor Relations Board - Board Decisions

Jul 16, 1975

219 N.L.R.B. 158 (N.L.R.B. 1975)

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.]