The Armstrong Rubber Co.

National Labor Relations Board - Board Decisions

Dec 13, 1974

215 N.L.R.B. 620 (N.L.R.B. 1974)

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 Orenduff the 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