Tennessee-American Water Co.

National Labor Relations Board - Board Decisions

Mar 17, 1975

216 N.L.R.B. 1123 (N.L.R.B. 1975)

TENNESSEE-AMERICAN WATER COMPANY 1123
Tennessee-American Water Company and John D.
Brown . Case 10-CA-10790
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
March 17, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On November 26, 1974, Administrative Law Judge
Almira Abbot Stevenson issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief, and
Respondent filed a brief in response thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its order the
recommended Order of the Administrative Law
Judge and hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON , Administrative Law Judge:
This case was heard at Chattanooga , Tennessee , October
15, 1974. The charge was filed by John D. Brown and a
copy was served on the Respondent July 5, 1974. The
complaint was issued August 27 , 1974. The issues are
whether or not the Respondent violated Section 8(a)(1) of
the National Labor Relations Act, as amended, by posting
a notice soliciting bids from members of Utility Workers
Union of America , Local No. 121-A, AFL-CIO, for the
position of laborer in the production department, and by
restricting bids for that position to members of the Union;
and violated Section 8(aX3) of the Act by refusing to award
the position to John D. Brown because of his lack of
membership in the Union . For the reasons fully given
below, I recommend that the complaint be dismissed.
Upon the entire record , including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the Respondent and the General
'.ounsel, I make the following:
The Respondent is a Tennessee corporation located at
Chattanooga, Tennessee, where it is engaged in the sale of
potable water to the cities of Chattanooga, Tennessee, and
Lookout Mountain and Rossville, Georgia. During the
past calendar year the Respondent received revenue in
excess of $250,000, and sold and shipped potable water
valued in excess of $50,000 directly to customers located
outside Tennessee. The Respondent admits, and I con-
clude, that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
Utility Workers Union of America, Local No. 121-A,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES'
A. Background
The Respondent and Local No. 121-A are parties to a
collective-bargaining agreement effective November 26,
1973, to November 25, 1975, covering a unit of "office
workers, clerical workers , storekeepers and janitors." The
agreement provides, in section 4, for the posting of
vacancies ; that "Any employee covered by this Agree-
ment" who desires a posted job may submit a bid for it;
and that the job shall be awarded to the qualified employee
who "has the most seniority." Section 3 covers seniority,
and states, among other things, that, "Job openings will be
offered to qualified applicants in order of their `Unit
Seniority,' " defined as length of service in the unit
described in the agreement. Section 3 also lists the
circumstances under which an employee shall lose his
seniority as voluntary termination of employment; retire-
ment; discharge for just cause; failure to return from layoff
within 5 days of recall; and, for an employee with 2 to 5
years' accrued seniority, after a layoff exceeding 2 years.
The contract contains a check-off clause but no union-
security provision, and not all employees in the clerical
unit are members of Local No. 121-A.
A separate unit of laborers, production-department
operators, meter readers, and on-and -off men is represent-
ed by a different union, Local No. 121. The contract
covering that unit is not identical with the one covering the
clerical employees. Thus, the Local No. 121 agreement
gives an employee selected for a management position the
right to bump back into his old position in the unit without
loss of seniority within 6 months after his selection. Local
No. 121-A proposed a provision during the negotiations of
its current contract on retention of seniority upon leaving
the clerical unit, but after lengthy discussion the union
negotiating committee decided to drop the proposal.
John D. Brown was hired as a storekeeper in the clerical
unit in January 1970 and was a member of Local No. 121-
A from the time it was organized . In October 1973, Brown
1 The relevant evidence to this case is not in dispute.
216 NLRB No. 188
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accepted the position of cross-connection inspector. This
was an hourly paid technical position outside the clerical
unit and not covered by any collective-bargaining agree-
ment . Brown accepted the position because Distribution
Engineer William A . Russell and Vice President and
General Manager Edward W . Limbach assured him the
job was permanent and because the pay was higher.
Brown conceded he was aware that the cross -connection-
inspector position was outside the clerical unit when he
accepted it. He testified he asked Local No. 121-A for a
refund of dues checked off his pay for a short period after
he left the storekeeper job, and that the dues were refunded
and he has paid no dues to the Union since then.
In January 1974, Vice President Limbach was directed
by the Company president and comptroller to cut
operating expenses and to review his programs and
determine where the cuts would be made. The Respondent
decided to lay off 13 employees , including one of the two
cross-connection inspectors . The Company could have
selected either of the cross -connection inspectors for layoff,
which it was hoped would be only temporary, Limbach
said , and it was decided to select Brown because he was
less experienced than the other inspector, who had been
doing the work since December 1971, and had less
companywide seniority . As a consequence , Brown was laid
off for economic reasons January 9, 1974.
At that time, Brown asked Vice President Limbach
whether he had any objection to Brown 's rolling back to
his former storekeeper job. Limbach told him he had no
objection but he should see the officers of Local No. 121-A
about it. Brown approached Ralph Haston , president of
Local No. 121-A, who then discussed the matter with
Limbach . Limbach told Haston it was necessary to cut 13
employees. Although the Company had no objection to
Brown's rolling back , Limbach said , the employee in
Haston's unit with the lowest seniority would be laid off
instead of Brown . Haston then advised Limbach that the
Local No. 121-A officials did not want to lose an active
unit member in order to bring back a person from outside
the unit . Brown remained on layoff status.
On March 15, 1974 , Brown advised Limbach by letter
that he was available for any work within his capabilities.
On two occasions Brown has been offered jobs as junior
clerk , an entry-level position in the clerical unit. Brown
declined both offers because they required typing and he
cannot type, the most recent for the additional reason that
he had applied for a posted laborer's position in the
production department , discussed below, which pays more
than the junior clerk's job.
The laborer's vacancy came into being in the following
manner : In May 1974, Limbach wished to hire one
production and one distribution laborer , both of which
positions were in the unit represented by Local No. 121.
Limbach was informed, however, that he could put only
one production laborer on the payroll.
Limbach testified that the contract bidding procedure
agreed to with Locals No. 121 and 121-A requires the
posting of all vacancies for bidding by other employees in
the unit in which the vacancy exists; it has been used at
least 50 times ; and it is the only such procedure in use
except the management-rollback provision in the Local
No. 121 contract referred to above, which Limbach could
not recall having been used to date, and one other
procedure described as follows.
Because the Local No. 121 unit was entirely male and
the Local No. 121-A unit was primarily female, a further
agreement was entered into to comply with EEOC
guidelines in an attempt to get some women into higher
paying jobs such as meter reader in the Local No. 121 unit.
Under this procedure, if no bid is received from an
employee in the Local No. 121 unit for a vacancy in that
unit, the job is then posted for bids by employees in the
Local No. 121-A unit.
B. Immediate Events
The initial posting of the laborer's position brought no
bids from employees in the production unit. Thereafter, on
May 6, 1974, the Respondent admittedly posted the
following notice, which is alleged to constitute a violation
of Section 8(axl) on its face:
NOTICE
The Company is now accepting bids from members
from Local 121A for the position of laborer in our
production department. All bids must be submitted in
writing to the undersigned prior to 10:00 A.M., May
14, 1974.
D. L. Edgemon Business Manager
Brown heard that two laborer's positions were open, and
on May 14, 1974, he wrote a letter to Limbach applying for
them. Edgemon replied May 24, 1974, to the effect that he
was not sure when the laborer's positions would be filled,
and again offering to consider Brown for a junior clerk's
job. On May 29, Brown informed Edgemon in effect that
he would wait for a laborer's job.
Two employees in the clerical unit submitted bids for the
production laborer's job. Although Edgemon concedes that
Brown is qualified to do the work, the job was awarded to
Barbara Butler, a junior clerk in the clerical unit, who, with
a hiring date of February 17, 1972, had greater unit
seniority than the other clerical-unit bidder. The other
bidder is not identified in the record. The record also fails
to establish whether either of the bidders are union
members.
It was Business Manager Edgemon who prepared the
May 6 job-bidding notice set out above. He testified that
the wording chosen was unfortunate, and that his intent
was not to deny nonmembers of Local No. 121-A an
opportunity to bid, but to solicit bids from all employees
occupying positions covered by the Local No. 121-A
contract. He said that no nonmember of the Union
employed in that unit was in fact denied an opportunity to
bid. Two such nonmembers, Mary Oadmann (Odmann)
and David Pennington, testified. Both are classified as
senior clerk 2. Oadmann testified that she had recently bid
for the job which she holds. Both recalled the May 6 notice
and voiced the opinion that they could have bid for the
laborer's job if they had wanted it, but said they did not
want the position.
TENNESSEE-AMERICAN WATER COMPANY
Edgemon testified that Brown was not eligible to bid for
the production-laborer position. All parties agreed that the
current Local No. 121-A collective-bargaining agreement,
the pertinent provisions of which are set out above, is silent
on the unit seniority of a clerical employee who transfers to
a technical job. Vice President Limbach, who participated
in negotiating the current contract , Rachel Bartley, current
president of Local No. 121-A and a member of the
committee which negotiated the contract , and Edgemon all
expressed their understanding or opinion that Brown lost
his seniority in the clerical unit when he voluntarily left the
unit to accept the cross-connection-inspector job.
The Respondent has recalled 2 of the 13 employees laid
off when Brown was and has replaced 3 or 4 junior clerks
and a chemist . It has not hired a distribution laborer, and
no other openings have occurred . Edgemon testified he
does not know when the cross-connection-inspector job
will reopen , but he has told Brown he will be recalled when
it does.
C. Conclusions
The General Counsel has nothing going for him in this
case except the actual wording of the May 6 notice, and the
record reveals that even this was contrary to the intent and
understanding of all concerned , as discussed below. There
is no other evidence of any animosity on the part of the
Respondent toward Brown or any employee who is not a
member of the Union, or any disposition by it to
discriminate against such nonmembers in favor of employ-
ees who are members . The collective-bargaining agreement
is a valid open-shop contract . It establishes a lawful
bidding procedure for unit vacancies by employees covered
by the agreement , and the filling of such vacancies by the
qualified employee with the greatest unit seniority regard-
less of union membership. Moreover , the supplemental
procedure agreed to for EEOC guidelines purposes, under
which 'production-unit vacancies are thrown open for bids
by clerical-unit employees, is similarly not membership
connected . Nor is there evidence of any practice by the
parties to these agreements to administer them in a
discriminatory manner. Indeed, the entire uncontradicted
evidence is to the contrary.
These circumstances , plus the General Counsel's failure
to clearly show that Barbara Butler who was awarded the
job sought by Brown was a member of the Union, the
evidence that nonmember Mary Oadmann successfully bid
for the job she now holds in the clerical unit, the
Respondent 's expressed willingness to permit Brown to roll
back into his unit position at the time of his layoff, its offer
of entry-level positions, and its promise of recall to his
cross-connection-inspector position when economically
feasible , all establish to my satisfaction that Brown's
nonmembership in Local No . 121-A played no part in the
Respondent's refusal to award him the production labor-
er's job.
2 See Communications Workers of America v. Pacific Northwest Bell
Telephone Company, 57 LRRM 2203 (C.A. 9, 1964). Such evidence , present
in this case , appears to refute any implication of exclusion arising from the
failure of the agreement to specify transfer from the unit as one of the ways
seniority is lost. Cf. 17 Am. Jur. 2d Sec. 255.
1125
Moreover, I credit the testimony of Limbach and
Edgemon that the sole reason Brown was not awarded the
position was that he was considered ineligible to bid for it.
I credit them because their demeanor was impressive and
because their testimony was uncontradicted, mutually
corroborative, and supported by the overwhelming weight
of the evidence. Thus, under the Respondent's collective-
bargaining agreements , only those employees covered by
the Local No. 121-A contract were eligible to bid, and
Brown conceded that his cross-connection-inspector job
was outside the clerical unit covered by that contract. The
General Counsel contends, however, that "when Brown by
his March 15, 1974, letter . . . opted to forsake the cross-
connection job and requested that he be considered for any
job openings that he can qualify for, he was placing himself
within the coverage of the unit as shown in the Local
Union 121-A's contract with Respondent." There is no
merit to this contention. Brown's March 15 letter contains
no indication that he meant to forsake any claim he may
have had to be recalled to that job when economically
feasible as the Respondent promised him, whether or not
another job was available in the interim. If he did intend,
by his letter, to place himself back in the unit covered by
Local No. 121-A contract, he was unable to do so because
that contract contained no provision for bumping back
into the unit. Therefore, as Brown was not eligible to bid
on the production-laborer job, whether he had unit
seniority greater than that of the employee who was an
eligible bidder to whom the job was awarded, is of no
consequence.
In any event, there does not appear to be merit in the
General Counsel's contention that Brown did have such
unit seniority; i.e., that as the Local No. 121-A contract
was silent as to the loss of unit seniority upon transfer out
of the unit, Brown retained his seniority for 2 years after
the date of his layoff. The bargaining history of the
Union's proposal and then withdrawal of a seniority
retention provision, and the interpretation and mutual
understanding of the parties to the contract,2 indicate that
Brown lost his unit seniority under the contract upon his
transfer out of the unit, before his subsequent layoff.
As the record fails to show that the Respondent was
motivated by Brown's lack of membership in the Union, or
that Brown was eligible to bid or had seniority rights under
the contract, I conclude that the Respondent's refusal to
give Brown an opportunity to bid for, or to award him, the
production-laborer job was lawful, and that this allegation
of the complaint should be dismissed.3
Based on my findings set forth above, I further find that
the Respondent did not in fact restrict bids for the position
of laborer in its production department to members of the
Union, as alleged , and conclude that this allegation of the
complaint should also be dismissed.
The sole remaining issue, therefore, is whether or not the
Respondent violated Section 8(a)(1) of the Act by posting
the May 6 notice that "The Company is now accepting
bids from members from Local 121-A" for the production
3 Contrary to the General Counsel 's contention, the Respondent's
conduct toward Brown clearly was not "so inherently destructive of
employee interests that it may be deemed proscribed without need for proof
of an underlying improper motive ." Cf. N LR B v Great Dane Trailers,
Inc., 388 U .S. 26, 33 (1967).
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laborer's position . The General Counsel contends that the
notice on its face constituted a violation of the Act. If there
were no other considerations, such a conclusion undoubt-
edly would be justified.4 However, there are other
considerations , and I do not understand that they can be
ignored . Thus, Business Manager Edgemon credibly
testified that he did not intend by the notice, the wording
of which he termed unfortunate, to deny nonmembers of
Local No. 121-A an opportunity to bid, and I have found
that the Respondent did not in fact so restrict the bidding.
In addition , nonmember employees in the clerical unit
testified to the effect that they did not infer from the notice
that the Respondent would not consider bids by them had
they chosen to submit bids for the job. Moreover, anyone
with experience in the field of labor-management affairs
cannot but recognize the difficulty with which the
inexperienced distinguish between such esoteric terms as
members of a union and members of a unit represented by
a union . The transcript of this proceeding contains
4 Cf. Hendrix Manufacturing Company, Inc v. N.LR.B. v Walton
Manufacturing Company, 289 F.2d 177 (C.A. 5, 1%1); American Internation-
al Aluminum Corp., 149 NLRB 1205 (1964).
S National Food Service, Inc., 1% NLRB 295,2% (1972).
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
examples of laymen struggling with such problems in
semantics . Accordingly, I find that th, wording of the
notice was a simple mistake , and in all the circumstances
including the absence of any other unfair labor practices
did not convey the impression to employees that bids from
otherwise eligible employees who were not members of
Local No. 121-A would not be considered.5
I conclude that the allegations that the Respondent
violated Section 8(a)(3) and (1) of the Act are not
supported by a preponderance of the evidence, and that
the entire complaint should be dismissed.
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:
ORDER6
The complaint is dismissed in its entirety.
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.