E. I. Du Pont & Co.

National Labor Relations Board - Board Decisions

Jun 28, 1991

303 N.L.R.B. 631 (N.L.R.B. 1991)

631
303 NLRB No. 98
E. I. DUPONT & CO.
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
The union witnesses testified that the parties agreed to treat the matter of
overtime administration as part of their general negotiations for a contract,
rather than on an ad hoc basis. The judge credited these witnesses. Thus, the
matter was subject to the parties’ agreement that bargaining would not be frag-
mented. The Respondent’s attempt to bargain and implement this matter sepa-
rately was inconsistent with this agreement.
We correct two inadvertent errors of the judge, neither of which affects our
decision. First, on May 16, 1989, steward Jack Huggins was not also serving
as an overtime administrator. Second, nonunit employee Lizette McGiver
began administering overtime for the control and general maintenance units on
July 17, 1989.
2 The sums, if any, owing to unit employees as a result of the Respondent’s
unlawful conduct shall be calculated in the manner prescribed in Ogle Protec-
tion Services, 183 NLRB 682 (1970), with interest as prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
E. I. du Pont de Nemours and Company, Incor-
porated and International Brotherhood of Elec-
trical Workers, AFL–CIO, CFL and Local
Union 382, International Brotherhood of Elec-
trical Workers, AFL–CIO, CFL. Cases 11–CA–
13225, 11–CA–13416, 11–CA–13522, and 11–
CA–13547
June 28, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND
RAUDABAUGH
On July 5, 1990, Administrative Law Judge Richard
L. Denison issued the attached decision. The Respond-
ent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified below, to amend his remedy,2 and
to adopt the recommended Order.
The judge found that the Respondent violated Sec-
tion 8(a)(5) by unilaterally changing its method of ad-
ministering the assignment of overtime. We agree. In
particular, we reject the Respondent’s contentions that
the change did not represent a substantial and material
change or that the change was lawful either because
business necessity warranted unilateral action or be-
cause the parties had reached impasse before the
change was implemented.
1. As set out in the judge’s decision, from 1987
until after the Union’s certification in two units of me-
chanics (control and general), that method provided
that the employees in each unit select, on a volunteer
and rotating basis, one employee to assign overtime.
Each such employee worked 20 hours per week as an
overtime administrator and the remainder of each week
doing regular unit work. In July 1989 the Respondent
removed the overtime administration work from the
unit and reassigned that responsibility to a nonunit
clerical employee. In making that change, the Re-
spondent significantly changed the nature of the work
that, on a rotating basis, unit employees performed for
half of their workweek. Such a qualitative change es-
tablishes the substantial impact required to trigger the
bargaining obligation, regardless of whether it is ac-
companied by any change in the number of regular or
overtime hours worked. Christopher Street Owners
Corp., 294 NLRB 277 (1989), and Greensboro News
& Record, 290 NLRB 219 (1988).
2. We also agree with the judge that there is no
merit in the Respondent’s contention that its unilateral
change in overtime administration policy was required
by business necessity. The Respondent claimed that the
addition of 40 hours per week devoted to mechanical
work within the units consisting of 123 employees
would reduce the amount of overtime needed for the
major equipment overhaul scheduled for August
through October 1989. To establish a business neces-
sity defense, however, it is not sufficient simply to
show that a particular change would save a substantial
amount of money or be more efficient; the employer
must show that it was essential to make the change
quickly, without regard to whether there was agree-
ment or a bargaining impasse. Compare Kohler Co.,
292 NLRB 661 (1989) (defense rejected where, despite
motivation by efficiency and cost savings, no evidence
of emergency situation precluding bargaining over
transfer of unit work outside of unit) with Dilene An-
swering Service, 257 NLRB 284, 285 at fn. 6 (1981)
(defense established by a showing that change in holi-
day work schedules was needed to assure coverage of
telephones during upcoming holiday weekend and that
union had promised, but failed, to supply a timely re-
sponse to proposal for change). Here the Respondent
has not demonstrated, either through testimony or doc-
umentary evidence, even the amount of savings that
would have been achieved through the change, let
alone the necessity of acting unilaterally when it did.
3. We finally must determine whether the Respond-
ent is correct in claiming that the parties had bargained
to impasse at the time it acted. Only if impasse had
been reached would the Respondent be free unilater-
ally to reassign that bargaining unit work to a nonunit
employee.
The judge, in finding that impasse had not been
reached, correctly applied the test set forth in Taft
Broadcasting Co., 163 NLRB 475 (1967), enfd. 395
F.2d 622 (D.C. Cir. 1968). That test sets forth a num-
ber of factors, of which the critical one here is the bar-
gaining history. Here the parties had agreed on ground
rules that made the overall state of the contract nego-
tiations critical. Specifically, they had agreed that the
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Only the issues which are included in Case 11–CA–13416 are the subject
of this proceeding since those issues included in Cases 11–CA–13225, 11–
CA–13522, and 11–CA–13547 were disposed of prior to the opening of the
hearing.
2 The facts set forth are based on a composite of the credited aspects of the
testimony of witnesses and the exhibits, and consideration of the logical con-
sistency and inherent probability of the facts found. Although I may not, in
the course of this decision, refer to all the evidence, it has been weighed and
considered, and to the extent that testimony or other evidence not mentioned
might appear to contradict the findings of fact, it has not been disregarded,
but has been rejected as incredible, lacking in probative worth, surplusage, or
irrelevant. In those instances where I may not have specifically detailed who
I have credited, it is clear from the narrative who has been credited.
3 Hereafter all dates are in 1989 unless otherwise specified.
Respondent would not engage in item by item bar-
gaining and would respond to the Union with a com-
plete counterproposal only after the Union had sub-
mitted its proposal on each issue it wished to raise. Al-
though, as the Respondent asserts, the parties agreed
during the course of contract bargaining to identify
certain specific items as ‘‘noncontractual’’ (e.g., emer-
gency loans necessitated by Hurricane Hugo) and to
address them in an ad hoc fashion outside the overall
contract bargaining, the Union never agreed that over-
time administration would be one of these ad hoc sub-
jects. In isolating the overtime administration issue and
unilaterally implementing its new policy when it did,
the Respondent acted prematurely under the bargaining
ground rules. We thus agree with the judge that the
Respondent was precluded from declaring an impasse.
It had not adequately tested the Union’s willingness to
accept the overtime administration because it had
short-circuited the process by which the Union might
have been willing to modify its position on that sub-
ject. Patrick & Co., 248 NLRB 390, 393 (1980), enfd.
mem. 644 F.2d 889 (9th Cir. 1981); Towne Plaza
Hotel, 258 NLRB 69, 78 (1981).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, E. I. Dupont de Nemours
and Company, Incorporated, Florence, South Carolina,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order.
Rosetta B. Lane, Esq., for the General Counsel.
Thomas L. Sager, Esq. (E. I. du Pont de Nemours and Com-
pany, Incorporated Legal Department), of Wilmington,
Deleware, for the Respondent.
Davis Self, Business Manager for Local Union 382, Inter-
national Brotherhood of Electrical Workers, AFL–CIO,
CFL, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge. This
case was heard in Florence, South Carolina, on December
21, 1989. The charge in Case 11–CA–13416 was filed by the
Charging Party, Local 382, on July 17, 1989. The consoli-
dated complaint, issued October 27, 1989, as subsequently
amended, alleges that E. I. du Pont de Nemours and Com-
pany, Incorporated, the Respondent, violated Section 8(a)(5)
and (1) of the Act by unilaterally changing the wages, hours,
and working conditions of its employees in three separate
bargaining units represented by the Charging Party.1
The Respondent’s answer denies the allegations of unfair
labor practices alleged in the complaint, as amended. On the
entire record in the case, including consideration of the
briefs, and observation of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Based on the allegations of paragraphs 2, 3, 4, 5, 6, and
7 of the complaint, respectively, admitted in the answer, and
record evidence of the Unions’ participation in negotiations,
I find that the Respondent is, and has been at all times mate-
rial, an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act, and that the Unions
named in the caption of this decision are each labor organi-
zations within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES2
A. Introduction
The Respondent’s Florence, South Carolina plant manufac-
tures mylar polyester film, which is used to make video and
audio cassette tapes. Five production lines are utilized in this
process, each of which must be shut down every 30 months
for a 35-day major overhaul performed by a team selected
from the plant’s total complement of 76 general and 47 con-
trol maintenance mechanics. Thus, when Respondent’s pro-
duction line No. 5 was closed down for a major overhaul,
which lasted from August until October 1989, 23 general and
21 control maintenance mechanics were assigned to the task.
In order to shorten the amount of downtime for line 5, these
employees worked a 48-hour workweek and, in addition, as
high as 30 percent overtime, including some forced overtime.
During the overhaul period, overtime for these two groups of
mechanics averaged about 19 percent.
The Charging Party is the Board-certified exclusive collec-
tive-bargaining representative for three separate units of em-
ployees at the Florence plant. Certification issued for the
control maintenance mechanics unit on November 15, 1988,
followed by the unit composed of general maintenance me-
chanics on February 21, 1989, and, finally, the powerhouse
mechanics unit on March 13, 1989. Contract negotiations
were conducted separately beginning with the control me-
chanics in January and February 1989, and commencing with
the general mechanics and the power mechanics in July and
August of that year.3 Once all negotiations were underway,
the subsequent sessions were scheduled in roundrobin fash-
ion. From time to time, as the need arose, the Respondent
and representatives of the Union (usually at the steward
level) met away from the bargaining table to deal with prob-
lems which needed immediate attention. Although these mat-
ters frequently involved terms and conditions of employment,
the parties both referred to them as ‘‘non-contract’’ items to
633E. I. DUPONT & CO.
4 Crawford testified that he could not recall meeting with Wenteler in
Cradic’s office on June 6. He also denied that he met with Wenteler at any
time that day. Huggins did not testify. I am persuaded that the meeting took
place as Wenteler described it. Wenteler also testified that he received a copy
of the new 1989 handbook prior to the meeting in Cradic’s office. In view
of the detailed and credited testimony of Terry W. Baldwin concerning the dis-
tribution of the handbook on June 6, the only logical explanation for
Wenteler’s clearly erroneous testimony is that he had seen a copy of the hand-
book distributed earlier that morning to the unrepresented employees.
5 Although the complaint lists a number of these changes as violations of
Sec. 8(a)(1) and (5) of the Act, the parties entered into a stipulation at the
outset of the hearing which had the effect of deleting from the complaint all
but the four changes discussed in this decision.
6 This testimony is undisputed.
distinguish them from matters discussed during formal con-
tract bargaining sessions.
The Union’s chief stewards were John F. Wenteler for the
control unit, J. Huggins for the general mechanics, and W.
Hinds, representing the power unit. These three employees
also served in the capacity of subsidiary negotiators on the
Union’s contract bargaining teams for their respective units.
Formal negotiating sessions began with the control me-
chanics unit’s meeting with management on March 15. At
this first session the Company insisted that the ground rules
for the negotiations follow a pattern which would permit the
Company to listen to all of the Union’s proposals for a com-
plete contract, following which the Company would present
its best offer for a complete contract. The Company refused
to engage in-item-by item bargaining. The Union disagreed,
but when management adhered to its position, the Union re-
luctantly stated that they would see ‘‘how it went.’’ Accord-
ing to the testimony of David W. Crawford, Respondent’s in-
dustrial relations superintendent and chief spokesman in ne-
gotiations, thereafter the parties met two times per week for
sessions of 2 hours in length, and once roundrobin bar-
gaining began with each of the three units, they met with the
control unit every third week. Crawford acknowledged that
the Company made no counterproposals, but simply listened
to the Union’s proposals and responded with what he called
‘‘management’s current thinking,’’ which was subject to
change when the time arrived for the Company to make its
complete best offer for a contract. Crawford conceded that
the Union continued to protest the manner in which the
Company was bargaining.
It is against this background that I now turn to consider-
ation of the alleged violations specified in the complaint.
B. The Alleged Unilateral Changes Reflected in
Respondent’s Revised Handbook Distributed to
Employees on June 5 and 6
Consistent with past practice, Respondent publishes an em-
ployee handbook which sets forth its policies and procedures.
The handbook is distributed to each employee. In September
or October 1988, Senior Personnel Specialist Terry W. Bald-
win was assigned the task of preparing an up-dated version
of the handbook, the last edition of which had been distrib-
uted to employees in 1984. By June 1989, the revised hand-
book was ready for publication. On June 6, John Wenteler,
Class A control mechanic, and the Union’s chief steward for
the control unit, was summoned to C. R. Cradic’s office
where he found Industrial Relations Superintendent Crawford
waiting for him along with J. Huggins, the Union’s steward
from the power unit. No one else was present. The two stew-
ards were handed a copy of a company employee informa-
tion bulletin (in evidence as G.C. Exh. 4) listing 13 changes
in the 1984 handbook, which were contained in the 1989 re-
vision already distributed to unrepresented employees earlier
that day. Wenteler testified that he could not remember the
Company ever mentioning in prior negotiating sessions that
a revised handbook was about to be issued. No evidence in
the record refers to prior notification. Crawford asked
Wenteler and Huggins to read through the list of changes fol-
lowing which he asked them if they had any questions.4
That afternoon at previously scheduled contract negotiating
sessions with the power unit at 1 p.m., and in a specially
called session with the general maintenace unit at 2 p.m.,
Baldwin reviewed in detail, for the benefit of Self and other
members of the Union’s negotiating committee, the changes
embodied in the new 1989 handbook. In his presentation
Baldwin was careful to distinguish between changes made
prior to and after the advent of the Union as bargaining agent
for the three mechanics’ units. The four changes litigated in
this proceeding are as follows, based on uncontradicted testi-
mony by Baldwin and Crawford.5
1. Respondent’s policy to pay employees a premium when
less than 16 hours elapsed between work schedule changes
was altered in the late 1970s to pay the premium only when
such scheduled changes occurred less than 12 hours apart. It
is therefore clear that this change had been in effect long be-
fore the advent of the Union, and, simply, had not been pre-
viously published.
2. As reflected in Respondent’s Exhibit 7, a bulletin called
‘‘Items of Interest,’’ dated February 23, 1989, Respondent
changed its severe weather policy on March 10, 1988, to per-
mit employees to utilize l-hour increments of their vacation
time rather than lose pay in situations where severe weather
hampered their reporting on time for work.
3. Page 39 of the 1984 handbook contained a clause under
the paragraph headed ‘‘Breaking Ties in Seniority,’’ ‘‘Excep-
tion to the Above,’’ which stated that company service for
recognized maintenance experience if hired directly into
maintenance or power, might entitle one employee to be
placed above another. Baldwin testified that this clause had
been deleted, because it was no longer applicable and had
not been used since the initial hiring at the plant in 1961.
Under the Company’s practices in place before union rep-
resentation, new hires were always placed in class 1 or class
2 in the Company’s operations organization, from which they
then had the opportunity to work their way up into the main-
tenance or power groups. Baldwin further explained that
since layoffs and recalls occur by company seniority, the de-
letion of this clause could not possibly affect existing unit
employees.6
4. The final change in issue involves the Company’s in-
cluding a 6-month limitation period on the filing of griev-
ances. This, Respondent admits, to be a new change pub-
lished for the first time in the revised 1989 edition of the
handbook.
Both Baldwin and Crawford testified, without contradic-
tion, that following Baldwin’s presentation of the changes re-
flected in the new handbook, Baldwin asked the Union’s
chief spokesman, Davis Self, if the Union had any questions.
No questions were asked. At the end of the meeting Baldwin
asked Self if he had any objection to the distribution of the
634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 None of these persons testified.
handbook to the represented employees including the control
mechanics. Self answered that he had no problem with the
distribution of the handbook to any of the bargaining unit
employees. Self raised no objection to the changes made by
the Company or to the Company’s explanations. His only re-
mark was the observation that the Company’s 6-month limi-
tation period on the filing of grievances was ‘‘very reason-
able.’’ Business Manager Self entered an appearance in this
proceeding and sat beside counsel for General Counsel
throughout the hearing. He did not take the stand to refute
any of Respondent’s testimony concerning these and other
events. Therefore, under all the circumstances presented, I
find and conclude that the four changes in issue in this pro-
ceeding either occurred before the Union became the exclu-
sive representative of Respondent’s employees, or, in the
case of the 6-month limitation period, were specifically ap-
proved by the Union by reason of Self’s remarks at the meet-
ings on June 6. I therefore find that the Respondent has not
violated Section 8(a)(1) and (5) of the Act as alleged in para-
graph 24 of the complaint, as amended.
C. The Alleged Unilateral Change in Respondent’s
Overtime Administration
Beginning in 1987 and continuing through the time of the
Union’s certifications, the Company maintained an overtime
policy for the control mechanics and general mechanics
which provided that the mechanics themselves would admin-
ister the assignment of overtime by selecting one of their
own as overtime administrator. Thereafter this person, a vol-
unteer, utilized 20 hours per week of paid time in each of
their two units administering the assignment of overtime. The
overtime administration assignment was rotated. There is
some evidence that the chore was not particularly popular
among the mechanics. However, at the time of the change
in question, as discussed below, Respondent did have volun-
teers ready for training for the next planned rotation of this
work.
The first indication received by the Union that the Com-
pany desired to change the method by which overtime as-
signments were administered came on May 16 when Area
Maintenance Superintendent Al Robinson raised the topic on
the shop floor with the General Mechanics Overtime Admin-
istrator Jack Huggins. Huggins was also chief steward for the
Union with respect to the general mechanics unit. Robinson
said the Company was thinking about replacing the mechan-
ics’ overtime administrator with a clerk. However, Robinson
did not discuss the Company’s plans or reasons in detail at
that time.
A control unit contract bargaining session was scheduled
for May 31. One day, about a week before this meeting,
John Wenteler was called away from work by his supervisor
and told that he had a meeting with Sam Meggs, Control
Maintenance Area Superintendent, and to go to Meggs’ of-
fice. Only Meggs and Wenteler were present. Meggs raised
the subject of the Company’s desire to change the overtime
administration system. Wenteler answered that he was not in
a position to bargain this matter on behalf of the Union, that
he felt that neither of them were so empowered, and that the
matter should be discussed in the formal negotiations. Meggs
noted that overtime administration was one of the Com-
pany’s concerns, and the meeting ended. At the May 31 bar-
gaining session with the control unit, Meggs noted that he
and Wenteler had discussed the matter earlier, but that
Wenteler had stated he was not in a position to bargain for
the Union. At this meeting Baldwin, Robinson, and Crawford
represented the Company, while Business Manager Davis
Self and John Wenteler represented the Union. Meggs con-
tinued with an oral presentation of the Company’s plan to
give the overtime administration work to a nonunit clerical.
The Union asked the Company to submit a formal written
proposal on overtime administration. The Company agreed,
and the parties agreed to discuss the matter further at the
scheduled negotiating session with the general mechanics
unit at 1 p.m. on June 13. They also agreed to follow that
meeting with a previously unscheduled special negotiating
meeting with the control unit to begin at 2 p.m.
At 1 p.m. on June 13, the Company’s bargaining session
with the general mechanics unit began. The Union was rep-
resented by Davis Self, and Jack Huggins and Leo Lynch as
employee representatives.7 Crawford and Robinson rep-
resented the Company. Robinson made a formal presentation
of the Company’s written proposal to shift the scheduling
and recordkeeping for overtime from a mechanic adminis-
trator to a clerical. Robinson told the Union that the Com-
pany felt this work was a waste of a class A mechanic’s
time. He mentioned the approaching line 5 overhaul period,
and management’s need to keep overtime down during the
overhaul by using all mechanics to perform actual mechan-
ical work. The Union disagreed, stating that the mechanics
knew the job requirements better and could administer over-
time better than a clerical. They also noted, without disagree-
ment, that there had been problems in the past with respect
to overtime scheduling and recordkeeping, and that the
present arrangement had worked well. The Union asked for
time to consult with their membership about the matter at the
membership meeting scheduled for the first week in July.
The Company replied that they could not wait that long be-
cause they needed to have a clerical trained to free a me-
chanic for the overhaul, and that they felt a week was
enough time for the Union to consult with their members. As
the meeting ended, the Company announced that they
planned to begin training a clerical to perform this work by
the end of June.
At 2 p.m. that day the Company met in a bargaining ses-
sion with the control unit. Self and Wenteler represented the
Union. Meggs presented the same proposal Robinson had
presented to the general mechanics unit an hour earlier. Self
asked if management had previously told the mechanics
about what they wanted to do, and Crawford said no. How-
ever, Wenteler spoke up, stating that he had been told about
the matter, and that the control mechanics had taken a vote
not to change the present procedure. The Union argued that
in the past there had been ‘‘all kinds of turmoil’’ about the
way overtime was conducted, and the result had been a man-
agement decision to have the mechanics administer their own
overtime. They said that the mechanics could do a better job
of overtime administration than a clerical employee, and that
they wanted to keep the present system. Although the Com-
pany did not contest the Union’s arguments, it responded,
generally, that they did not think the Union had presented a
strong case, and that they planned to begin training the cler-
635E. I. DUPONT & CO.
ical employee and to implement the change by the end of
June.
At a regularly scheduled control unit contract bargaining
session with the Company on June 14, attended by Crawford,
Cecil Gray, and Terry Baldwin for the Company, and Self
and employee representatives Post and Wenteler for the
Union, Self again stated that the Union did not agree to the
Company’s proposed overtime administration change. Never-
theless, the Company insisted that the Union had not shown
sufficient reasons for rejecting their proposal, and that they
were going ahead with implementation. On June 15, manage-
ment began training Lizette McGiver, a technical secretary,
to perform the overtime administration duties. That same day
Robinson had a conversation with Huggins in Robinson’s of-
fice. According to Robinson’s uncontradicted testimony, he
asked Huggins if the Union had any new input concerning
the Company’s proposal of June 13 concerning overtime ad-
ministration. Robinson told Huggins that if he had nothing
new to say, the Company was going to go ahead and imple-
ment their proposal. Huggins observed that if the Company
was going to do that, it didn’t make any sense to train the
mechanics who had already volunteered to replace the pre-
vious mechanic administrators. Robinson said he agreed, and
that plans to train the replacements would be discontinued.
Huggins was one of those who had volunteered to serve as
overtime administrator in the next rotation of that work. On
June 17, McGiver began administering the overtime for the
control and general maintenance units.
Respondent contends that its reassignment of the overtime
administration work was justified by business necessity, and
resulted in no significant adverse impact to the general and
control mechanics. Respondent also argues that it bargained
to impasse with the Union on this policy change. In my
view, however, the Respondent’s arguments are seriously
flawed. Indeed, the Board has held that reclassification of a
bargaining unit job to a nonunit position is a mandatory sub-
ject of bargaining provided the reclassification has an impact
on bargaining unit work. The existence of such an impact is
determined by an examination of the practical effect of the
change. Since the Respondent inaugurated its policy of uti-
lizing one daytime mechanic each from the control mechan-
ics unit and from the general mechanics unit to schedule and
record all overtime, these mechanics each have spent ap-
proximately 20 hours per week performing overtime adminis-
tration duties. By changing this policy and moving the over-
time administration work outside the bargaining unit, the
Company added 40 hours per week of mechanical work per-
formed during regular hours. Thus, Respondent’s change in
overtime administration had the impact of adding an addi-
tional 40 hours per week for the performance of mechanical
work usually performed by other mechanics in the unit.
With respect to Respondent’s contention that its change
was justified by business necessity in order to reduce the
amount of overtime needed for the line 5 major overhaul, I
find this reasoning unpersuasive. The Respondent has five
production lines, each of which must be overhauled every 30
months. Therefore, during the 2 years during which a me-
chanic from each of the units in question has been per-
forming overtime administration duties, periodically, a num-
ber of major overhauls have taken place. Not only did Re-
spondent find it unnecessary during that period of time to
change the overtime policy to reduce overtime, there is evi-
dence in the record that the assignment of the overtime ad-
ministration to a general and a control mechanic was de-
signed to eliminate, and did eliminate, problems which had
previously arisen in overtime administration.
Finally, the Respondent’s argument that it bargained to im-
passe with the Union over the overtime administration
change does not withstand scrutiny. The Board has observed
that the question of the existence of an impasse is a matter
of judgment dependent on an analysis of the bargaining his-
tory of the parties, their good faith in negotiations, the im-
portance of the issue in question, and a contemporaneous un-
derstanding of the parties as to the status of the negotiations.
I conclude that the bargaining history and the state of the ne-
gotiations between the parties demonstrates that no impasse
had been reached concerning the change in Respondent’s
overtime administration policy, which sought a removal of
work from the bargaining units. Although, when Respondent
first made its overtime policy change proposal at the bar-
gaining table with the control mechanics on June 13, contract
negotiations with the control mechanics unit had been pro-
ceeding since January, regular contract negotiations for the
general mechanics had not even started. During the very first
negotiating session with the control mechanics unit, Re-
spondent stated flatly that they would not present any coun-
terproposals to the Union’s proposals. Respondent insisted
that after the Union had made all of its proposals for an en-
tire contract, the Company would then make one best offer
for a complete contract. By taking this position, the Respond-
ent precluded any opportunity for give and take and the
trade-offs which the Board has frequently observed to be the
essence of true collective bargaining. In this context I find
it impossible to conclude that any true impasse has been
reached, since the possibility that the Union might accept the
Company’s proposed change in return for some other item
which the unit employees desired, has not been explored.
Consequently the good-faith bargaining mandated by the Act
has not occurred. I therefore find and conclude that the Re-
spondent has violated Section 8(a)(1) and (5) of the Act by
unilaterally implementing its overtime work administration
proposal in the control and general mechanics units without
engaging in good-faith bargaining with the Union concerning
this change.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Unions are each labor organizations within the
meaning of Section 2(5) of the Act.
3. The following constitute separate appropriate units for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
(a) All class 8 control mechanics, including apprentices
and trainees, within that classification in the maintenance de-
partment employed at Respondent’s Florence, South Carolina
plant; excluding all other production and maintenance em-
ployees, operations employees, technicians, specialists, plan-
ners, office clerical employees, guards, and supervisors as
defined in the Act.
(b) All general maintenance mechanics, including trainees
employed at Respondent’s Florence, South Carolina plant;
excluding all production employees, operators, control me-
chanics, technicians, specialists, planners, power plant em-
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
ployees, office clerical employees, guards and supervisors as
defined in the Act.
(c) All power area operators in various classifications em-
ployed by Respondent at its Florence, South Carolina facil-
ity, but excluding all maintenance employees, production em-
ployees, operations employees, technicians, specialists, plan-
ners, office clerical employees, guards, and supervisors as
defined in the Act.
4. At all times since November 15, 1988, Local Union 382
has been, and is, the exclusive collective-bargaining rep-
resentative of the employees in the unit described above in
paragraph 3(a), with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment.
5. At all times since February 21, 1989, Local Union 382
has been, and is, the exclusive collective-bargaining rep-
resentative of the employees in the unit described above in
paragraph 3(b), with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment.
6. At all times since March 13, 1989, Local Union 382 has
been, and is, the exclusive collective-bargaining representa-
tive of the employees in the unit described above in para-
graph 3(c), with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment.
7. By unilaterally changing its method of administering
overtime without bargaining in good faith with the Union
concerning that change, on or about June 17, 1989, the Re-
spondent violated Section 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
9. The Respondent has not violated the Act in any respects
other than those specifically found.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, it will be recommended that the Re-
spondent cease and desist therefrom and take certain affirma-
tive action necessary to effectuate the policies of the Act.
Since I have found that the Respondent has unilaterally
changed its overtime administration policy without good-faith
bargaining with the Union as the exclusive representative of
its employees in the control maintenance and general mainte-
nance units, I shall order the Respondent to cease bargaining
in bad faith and to bargain with the Union in good faith, on
request, and, if an understanding is reached, embody such
understanding in a signed agreement. This bargaining shall,
on request, specifically include negotiations over any pro-
posed change in the overtime administration policy for these
units.
I shall also order the Respondent to rescind its implemen-
tation of its overtime administration policy change awarding
that work to a clerical employee outside of the appropriate
collective-bargaining units. The Respondent will also be or-
dered to give adequate advance notice to and, on request,
bargain in good faith with the Union concerning any pro-
posed future changes in the wages, hours, and working con-
ditions of its bargaining unit employees.
In addition, the Respondent will be ordered to make whole
its employees in the control maintenance and general mainte-
nance bargaining units for loss of earnings they may have
suffered as a result of Respondent’s unilateral change in its
overtime administration policy in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), and New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
Finally, the Respondent will also be ordered to post an ap-
propriate notice.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, E. I. Dupont de Nemours and Company,
Incorporated, Florence, South Carolina, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Local Union
382, International Brotherhood of Electrical Workers, AFL–
CIO, CFL, by unilaterally changing its overtime administra-
tion policy by the assignment of overtime administration
work to a clerical employee outside the appropriate collec-
tive-bargaining units set forth in paragraphs 3(a) and (b) of
the section of this decision entitled ‘‘Conclusions of Law.’’
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain in good faith with Local Union
382, International Brotherhood of Electrical Workers, AFL–
CIO, CFL, as the exclusive collective-bargaining agent of the
employees in the appropriate units set forth in paragraphs
3(a) and (b) of the section of this decision entitled ‘‘Conclu-
sions of Law,’’ with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment,
and if an understanding is reached, embody such under-
standing in a signed agreement. This bargaining shall, on re-
quest, specifically include negotiations over the Respondent’s
unilateral reassignment of overtime administration work to a
clerical employee outside the general maintenance and con-
trol maintenance bargaining units.
(b) Rescind the unilateral implementation of Respondent’s
reassignment of the overtime administration work to a cler-
ical employee outside the control and general maintenance
appropriate collective-bargaining units.
(c) Make whole Respondent’s control maintenance and
general maintenance bargaining units’ employees for any loss
of earnings they may have suffered as the result of Respond-
ent’s unilateral reassignment of the overtime administration
work to a clerical employee outside those units, including in-
terest, in the manner prescribed in the remedy section of this
decision.
(d) Provide adequate advance notice to and, on request,
bargain in good faith with the Union concerning any pro-
posed future changes in the wages, hours, and working con-
ditions of its bargaining unit employees.
(e) Preserve and, on request, make available to the Board
and its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
637E. I. DUPONT & CO.
9 If 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
(f) Post at the Respondent’s Florence, South Carolina plant
copies of the attached notice marked ‘‘Appendix.’’9 Copies
of the notice, on forms provided by the Regional Director for
Region 11, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately on receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
(h) In accordance with paragraph 9 of the section of this
decision entitled ‘‘Conclusions of Law,’’ the complaint is
dismissed in all other respects.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain in good faith with Local
Union 382, International Brotherhood of Electrical Workers,
AFL–CIO, CFL, as the exclusive collective-bargaining rep-
resentative of our employees in the collective-bargaining
units set forth immediately below, by unilaterally changing
our overtime administration policy by reassigning overtime
administration work to a clerical employee outside the appro-
priate collective-bargaining units, without affording the
Union adequate notice and an opportunity to engage in good-
faith bargaining concerning such change.
All class 8 control mechanics, including apprentices and
trainees, within that classification in the maintenance
department employed at Respondent’s Florence, South
Carolina, plant; excluding all other production and
maintenance employees, operations employees, techni-
cians, specialists, planners, office clerical employees,
guards, and supervisors as defined in the Act.
All general maintenance mechanics, including trainees
employed at Respondent’s Florence, South Carolina,
plant; excluding all production employees, operators,
control mechanics, technicians, specialists, planners,
power plant employees, office clerical employees,
guards and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights guar-
anteed to them by Section 7 of the Act.
WE WILL rescind the change in our 1987 overtime admin-
istration policy which reassigned the overtime administration
work for the control maintenance and general maintenance
units to a clerical employee outside those bargaining units.
WE WILL make whole our control maintenance and general
maintenance bargaining unit employees for any loss of earn-
ings they may have suffered as a result of our unilateral reas-
signment of the overtime administration work, including in-
terest.
WE WILL, on request, bargain in good faith with Local
Union 382, International Brotherhood of Electrical Workers,
AFL–CIO, CFL, as the exclusive representative of our em-
ployees in the appropriate collective-bargaining units with re-
spect to wages, hours of employment, and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement.
This bargaining shall, on request, include negotiations con-
cerning any proposed change in our 1987 overtime adminis-
tration policy, as described above.
WE WILL provide adequate advance notice to and, on re-
quest, bargain in good faith with the Union concerning any
proposed future changes in the wages, hours, and working
conditions of our bargaining unit employees.
E. I. DUPONT DE NEMOURS AND COMPANY,
INCORPORATED