St. Louis County Water Co.

National Labor Relations Board - Board Decisions

Mar 7, 1967

163 N.L.R.B. 263 (N.L.R.B. 1967)

ST. LOUIS COUNTY WATER CO. 263
result of any refusal to reinstate them upon such
application.
BARDAHL OIL COMPANY
(Employer)
Dated By
(Representative ) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1040 Boatmen's
Bank Building, 314 North Broadway, St. Louis, Missouri
63102, Telephone 622-4154.
St. Louis County Water Company and Walter
V. Jones . Case 14-CA-4077.
March 7, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On November 22, 1966, Trial Examiner John F.
Funke issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in unfair labor practices as alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief and the Respondent
filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this
case, including the exceptions and briefs, and
' The General Counsel's exceptions related almost solely to the
Trial Examiner's credibility findings upon which he based his
recommendation for dismissal. On the basis of our own careful
review of the record, we conclude that these credibility
resolutions are not contrary to the clear preponderance of all the
relevant evidence Accordingly, we find no basis for disturbing
those findings Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F.2d 362 (C.A. 3). We note that Jones, the alleged
discrinvnatee, was originally employed by Respondent on
April 20, 1966, as asserted by the General Counsel, rather than on
April 8, 1966, as set forth by the Trial Examiner, but deem this
discrepancy to be of no significance No exception was taken to
the Trial Examiner 's findings concerning commerce jurisdiction
hereby adopts the findings, conclusions, and
recommendation of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint be, and it hereby is,
dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: Upon a charge filed
August 9, 1966,1 by Walter V. Jones, herein Jones, against
St. Louis Water Company, herein the Water Company or
Respondent, the General Counsel issued a complaint
alleging Respondent violated Section 8(a)(3) and (1) of the
Act by terminating the employment of Jones because he
asked for and took time off to vote in a general primary
election for the State of Missouri on August 2.
The answer of Respondent denied the commission of
any unfair labor practices.
This proceeding, with all parties represented, was heard
before me at St. Louis, Missouri , on October 17, and at the
conclusion of the hearing the parties were granted leave to
submit briefs. Briefs were received from the General
Counsel and the Respondent on November 7.
Upon the entire record in this case and upon my
observation of the witnesses while testifying, I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent has its principal place of business at
University City, Missouri, where it is engaged in the
manufacture, sale, and distribution of potable water at its
water processing plant at Chesterfield, Missouri, the only
plant involved in this proceeding.
During the calendar year 1965, a representative year,
Respondent manufactured, sold, and distributed water
valued in excess of $250,000.
Respondent admits, and I find, that it is engaged in
commerce within the meaning of the Act.
II. LABOR ORGANIZATION INVOLVED
Utility Workers Union of America, AFL-CIO, is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
Walter V. Jones, the Charging Party, was employed by
the Water Company on April 8,1966, as a groundsman. As
a new employee he was subject to a probationary period of
120 days, pursuant to an agreement between the Water
Company and Utility Workers Union of America,
AFL-CIO, herein the Union. The Water Company and the
Union had in effect at all times during the employment of
' Unless otherwise noted all dates refer to 1966.
163 NLRB No. 33
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jones a collective-bargaining agreement (Joint Exhibit 1)
which contained the following provision:
3.02 NEW EMPLOYEE:
(a) It is mutually agreed that the Company shall not
be hampered in the selection of new employees.
(b) New employees shall be on probation for a period
of 120 days and, if retained, their seniority shall start
with the date of the commencement of the 120-day
probationary period. The probationary period may be
extended beyond 120 days by mutual agreement
between the Company and the Union.
(c) Should the Company release or dismiss a new
employee within the probationary period, such
release shall not be subject to review through the
grievance procedure.
During his employment with the Water Company Jones
did not join the Union nor did he engage in either union or
antiunion activity In July, Jones was promoted to the
position of utility man This promotion occurred when a
vacancy arose and Jones, pursuant to section 319(0(2) of
the collective-bargaining contract, bid for the job. Jones
was the only bidder for the job of utility man and was given
the job. Tuesday, August 2, was a general primary election
day in Missouri. Between 9 and 9:30 a.m. on that day
Jones asked his foreman, George W. Daffron, if he could
leave about one-half hour early (quitting time was
4:30 p.m.) to vote. Daffron gave him the permission. Jones
did not, however, leave the plant property until
approximately 4:20 p.m. The next day Daniel F. Moroney,
superintendent of the Water Company's plants, advised
Daffron that he had decided not to qualify Jones at the end
of his probationary period and Jones was given notice of
termination on Friday, August 5, the end of the pay period
and also payday.
It is the contention of the General Counsel that Jones
was discharged for asserting his right to have time off to
vote under the terms of the contract between the Water
Company and the Union. This contract contains the
following clause:
3107 JURY OR ELECTION DUTY (b):
Any person entitled to vote at any election held
within this State, or any primary election held in
preparation for such election, shall on the day of such
election, be entitled to absent himself from any
services or employment in which he is then engaged
or employed, for a period of three hours between the
time of opening and the time of closing the polls for
the purpose of voting; and any absence for such
purpose shall not be sufficient reason for the
discharge of or the threat to discharge any such
person from such services or employment; and such
employee, if he votes shall not, because of so
absenting himself, be liable to any penalty, nor shall
any deduction be made on account of such absence
from his usual salary or wages; provided, however,
that request shall be made for such leave of absence
prior to the day of election, and provided further, that
this section shall not apply to a voter on the day of
election if there be three successive hours, while the
polls are open, in which he is not in the service of his
employer. The employer may specify any three hours
between the time of opening and the time of closing
the polls during which such employee may absent
himself as aforesaid.
The General Counsel and Jones admit that he did not
make any written request on the day preceding the
election as required by the contract.2
Respondent offered the testimony of Superintendent
Moroney to the effect that the decision to discharge Jones
had been made by him prior to the request made by Jones
for time off to vote and had been based on reports received
by him from Jones' supervisors, Henry Curtis Ray (when
Jones was a groundsman), George Daffron (when Jones
was a utility man), and from Arthur M. Tate, the overall
supervisor of maintenance. I find all four witnesses
credible, and I particularly accept Moroney's testimony
that the decision not to qualify Jones had been made prior
to August 2 although it was not communicated to Daffron
until August 3.
B. Conclusions
The General Counsel's theory of the case is precise, i.e.,
that Respondent violated its contract with the Union by
discharging Jones for exercising his right to take time to
vote. The record is clear that Jones did not make any
request in writing on the day preceding the election for
time to vote as required by the contract. Since he was,
however, granted time to vote, it is assumed that this
condition was waived by his employer. I do not find that he
was discharged for exercising this right. He was absent
only for 10 minutes prior to his ordinary quitting time and
the testimony establishes that his foremen were not
enthusiastic about his job performance. I credit the
testimony of Moroney that he had decided not to qualify
Jones prior to August 2. If so, then it cannot be held that
Jones was discharged for seeking time to vote despite the
testimony in the record that Jones' foreman was
displeased at the request. It is also a matter of record that
Respondent had consistently abided by its contractual
obligations in this respect.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in
its entirety.
' Respondent has a written form for employees to fill out for
voting time (Resp Exh 1)
Hercules Packing Corporation and Textile
Workers Union of America , AFL-CIO. Case
3-CA-2759.
March 7, 1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On July 13, 1966 , Trial Examiner James V.
Constantine issued his Decision in the above-
entitled proceeding, finding that the Respondent had
engaged in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended , and recommending that it cease and
desist therefrom and take certain affirmative action,
163 NLRB No. 35