Kendrick Cartage Co.

National Labor Relations Board - Board Decisions

Feb 16, 1971

188 N.L.R.B. 534 (N.L.R.B. 1971)

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