E. I. du Pont de Nemours and Co.

National Labor Relations Board - Board Decisions

Oct 26, 1972

199 N.L.R.B. 1044 (N.L.R.B. 1972)

1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. I. du Pont de Nemours and Company and Interna-
tional Brotherhood of Electrical Workers, Local Un-
ion 382, AFL-CIO. Case 11-CA-4739
October 26, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On June 28, 1972, Administrative Law Judge I
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions-and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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 his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, E. I. Du Pont De Nemours
and Company, Florence, South Carolina, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
I The title of "rnal Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
TRIAL EXAMINER'S DECISION
I PRELIMINARY STATEMENT; ISSUES
STANLEY N. OHLBAUM, Trial Examiner: This proceeding
under the National Labor Relations Act as amended, 29
U.S.C. Sec. 151 et seq. ("Act"), based upon complaint issued
by the Regional Director for Region 11 of the National
Labor Relations Board on January 17, 1972, founded on a
charge filed by the above Union against the above Employ-
er on November 30, 1971, was tried before me in Florence,
South Carolina, on February 8-9, 1972, with all parties rep-
resented and afforded full opportunity to present evidence
and contentions. Subsequent to the hearing, briefs were
timely filed. Those briefs, together with the entire record,
have been carefully considered.
The issues presented are whether Respondent Employ-
er violated Section 8(a)(1) and (3) of the Act through inter-
rogating employees concerning their union activities,
sympathies and desires; through threatening them that in
the event of unionization they would be terminated if they
failed a progression test; through threatening them that in
the event of unionization they would lose their existing roll-
back privilege if they failed a progression test; and through
discharging and failing and refusing to reinstate its employ-
ee Hilton Harrell because of union affiliation or activities.
Upon the entire record I and my observation of the
testimonial demeanor of the witnesses, I make the follow-
ing:
Findings and Conclusions
II. PARTIES, JURISDICTION
At all material times, Respondent E. I. du Pont de
Nemours and Company, a Delaware corporation with a
plant in Florence, South Carolina, has and is engaged in
manufacture of synthetics. During the representative 12-
month period immediately preceding issuance of the com-
plaint, in the course and conduct of that business, Respon-
dent purchased raw materials valued in excess of $50,000
directly in interstate commerce from places outside of South
Carolina, and also shipped finished products valued in ex-
cess of $50,000 likewise directly in interstate commerce to
places outside of South Carolina.
I find that at all material times Respondent has been
and is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act; that the
above Union (Charging Party) has at all those times been
and is a labor organization within the meaning of Section
2(5) of the Act; and that assertion of jurisdiction in this
proceeding is proper.
III ALLEGED UNFAIR LABOR PRACTICES
A. Background
At its Florence plant, Respondent manufactures a
cellophane film utilized for many purposes, including mag-
netic tapes and electrical insulation. Its total work force
there is around 420, of whom, in the Fall of 1971, 28 were
control equipment mechanics. Following a union campaign
commencing in early 1971 to organize the control equip-
ment mechanics and trainees, a Board-conducted election
on September 23, 1971, resulted in an 18-10 victory for the
Union, which was accordingly certified by the Board on
October 1, 1971, as their exclusive bargaining representa-
tive.
B. Alleged Violations of Act 2
1. Interrogation : facts, discussion , and findings
It is alleged and denied that, in violation of Section
8(a)(1), on September 7, 1971-some 2 weeks before the
Board election-Respondent's assistant area supervisor in-
1 Tnal transcnpt as corrected in respect to obvious and typographical
errors listed in annexed "Appendix A" [omitted from publication].
2 Unless otherwise specified, all dates in this portion of the decision refer
to 1971
199 NLRB No. 175
E. I. DUPONT DE NEMOURS 1045
terrogated an employee concerning his union activities,
sympathies, and desires.
Resolution of this issue turns upon the testimony of
General Counsel witness Maxie O. Turner (the employee)
and Respondent's witness Glen H. Spears (the assistant area
supervisor), the principals to the incident or incidents m
question, which do not appear to have had any counterparts
elsewhere. Turner, a control equipment mechanic, testified
that during the 3 weeks prior to the September 23 election,
on two or three occasions he was asked by Spears why he
wanted a union, in response to which Turner mentioned a
few experiences which had brought him to the belief "that
it would be in my best interest to have a union represent
me." Turner conceded on cross-examination that his union
proclivities and activities were well known around the plant,
and that during the course of his discussion with Spears
when he told Spears that he thought he (Turner) was a
"marked man," Spears may have responded that "it would
be ridiculous for the plant to fire you because of any union
activity." At the time of the trial of this case, Turner was still
in Respondent's employ.
Spears denies ever asking Turner why he wanted a
union. According to Spears, he once came upon a conversa-
tion among a group of employees, including Turner, rela-
ting to a grievance of another control mechanic. During this
conversation (according to Spears), Turner remarked that if
the Union came in it would be because of the treatment
accorded to the employee in that case. Spears said that he
would "hate to see the union come in on the plant." Turner
then remarked that if the Union failed to come in as he
favored, he (Turner) would be fired because of his prom-
inence in union activity-that he was "a marked man."
Spears thereupon reassured him that Respondent would do
nothing of the sort and asked him why he felt that he was
a "marked man." When Turner indicated he based his feel-
ing upon treatment he had received in a disciplinary action
which he considered to have been unfair, Spears indicated
he should have pursued the established grievance proce-
dure-advice which Spears reiterated around a week later.
Since it does not appear that the discussions, even ac-
cording to Turner's version, were other than isolated in
character by a single supervisor, or that they were coercive,
restraintful, or meddlesome in character, or that they inter-
fered or tended to interfere with any rights of Turner or
other employees, it is found that Respondent did not there-
by violate the Act as alleged.
2. Economic threats: facts as found
It is further alleged and denied that on September 20
and 21 two of Respondent's supervisors threatened employ-
ees that if they unionized they would lose their rollback
privilege and be terminated if they failed a progression test.
As has already been stated, Respondent's 28 control
equipment mechanics organized and unionized, and after a
Board election on September 23 the Union was certified on
October 1 to represent them.
A comparison of Respondent's promotional ("progres-
sion" and "rollback") personnel policies and practices prior
to the Board's certification of the Union and those which it
announced it would (and thereafter did in fact) place into
effect, in the event of such certification, is essential to an
understanding of the issues involved herein concerning
Respondent's alleged economic threats as well as its dis-
charge of its mechanic Hilton Harrell.
Of a total work force of 420 in October, 1971, Respon-
dent had 28 control equipment mechanics. The control
equipment mechanic does both electrical and pneumatic
control work. For promotional job level, and pay purposes,
there are eight levels of employees, from I (lowest) to VIII
(highest). There are two separate seniorities-plant seniori-
ty and work-unit seniority. New employees are hired into a
"pool" having only plant seniority. All class I and class II
employees are regarded as being in the "pool" for seniority
(i.e., plant seniority) purposes, regardless of where actually
assigned.' The "pool" consists of around 57 employees.
a. Respondent's job `progression" and "rollback"
policy and practice prior to
Board election and union certification
Employees in the "general mechanipal group" as well
as those in the "control equipment group" seeking or of-
fered "progression" (i.e., promotion to a higher pay level on
the I to VIII scale) were required to undergo a test 4 An
employee who failed such a test (or retest, as explained
below) within 8 weeks after he had left his previous work
unit, returned to that work unit and regained his former
work unit seniority (and also retained his plant seniority);
if, however, his failure occurred more than 8 weeks after he
had left his previous work unit, he returned to the "pool,"
retaining all of his plant seniority but forfeiting his work-
unit seniority.
A "general mechanic" (in the "general mechanic
group") could seek or be offered "progression" to become
a "control equipment mechanic," also referred to as a "con-
trol mechanic" (in the "control equipment group"). The
"control equipment group" is composed of classifications
III through VIII, of which III through VII are trainee classi-
fications; class VIII is the "control equipment mechanic"
classification. It takes about 3 years (less 1 week) to reach
Class VIII. An employee (i.e., a general mechanic or a con-
trol equipment mechanic trainee) who failed the first "pro-
gression" test-given after 8 weeks-could not be retested,
but either returned to his previous work unit (if the failure
occurred within 8 weeks after he had left that work unit) or
to the "pool" (if the failure occurred more than 8 weeks after
he had left his previous work unit). Also, there could be no
retest of a trainee who had been retested on and failed the
last previous progression test (i.e., at the step below); he was
returned to the "pool." Thus, anybody who failed a retest
or was ineligible for a retest was returned to the "pool,"
where he could utilize his accrued plant seniority to gain
admission to a work-unit vacancy. Respondent had no se-
lection-out policy for an employee failing to pass a "pro-
gression" test; he merely reverted to his previous work unit
(if eligible, as explained above) or to the "pool."
It is conceded that the foregoing policies and practices
3 The Florence plant has 11 work units, the finishing area being the largest.
4 As explained by Respondent's employee relations superintendent and
witness Wallace, the testing system is utilized only for general mechanics and
control equipment mechanics.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have existed at Respondent's Florence plant for years prior
to the election and certification of the Union here; indeed,
since that plant started in 1959.
b. Respondent's preelection statements regarding
a changed job `progression" and "rollback"
policy and practice in the event the union won
the election and became bargaining agent
Testimony of Respondent's former mechanic James
Hilton Harrell ("Hilton Harrell") which I credit establishes
that in September (1971), prior to the Board-conducted
election (September 23), he was told by Respondent's Main-
tenance Foreman Smith that if the Union won the election
and he (Harrell) failed to pass his "progression" test he "felt
sure" he "would be terminated" and not permitted to "roll
back." (Harrell was not a union member at the time.) It is
conceded in Respondent's answer that, at the time, Smith
was its supervisor and agent acting on its behalf.5
Credited testimony of Harrell as well as that of
Respondent's control equipment mechanics Turner and
Leach 6 further establishes that on September 21, 2 days
before the Board-conducted election, the control equip-
ment mechanics were required to attend a company-con-
voked assemblage in the plant conference room where they
were addressed by Plant Manager Bray. Among other
things, Bray indicated that the Union was not needed;8 that
the employees in another plant of Respondent received no
benefit from payment of union dues; that if the Union came
in, all benefits would be "negotiated ... from the bottom
up"; that if the Union came in, the Company would "hire
and fire from the gate";9 and-illustrating on a blackboard
with a slice of pie cut off from the rest of the pie-that if
the Union came in, the control equipment mechanics would
5 Maintenance Foreman Smith 's version-testifying as Respondent's wit-
ness-of the conversation with Harrell is that he did indeed have not one but
five or six conversations with Harrell in September-October concerning what
would happen to Harrell if he failed his "progression" test ; and that Smith
told Harrell he did not know but that this would "have to be" negotiated;
and, further, that when Harrell said he had heard that at some plants such
an employee could be fired , Smith replied that this could be true here, too.
I credit Harrell 's version . It is to be noted, however, that even under Smith's
version the discussion was in the context of a change or possible change in
Respondent's existing progression-rollback policy and practice in the event
of unionization ; making Harrell 's existing right or privilege of "rollback" at
least questionable in the event of unionization, in contrast to its firmly fixed
and continuing nature without change in the event the Union was defeated
in the election.
6 Both Turner and Leach have been in Respondent's employ since 1961,
over 10 years; each is currently in Respondent's employ as a class VIII (i.e.,
top rating) control equipment mechanic. Each testified as General Counsel's
subpoenaed witness. It has been emphasized by high judicial authority, as
well as by the Board, that testifying adversely to their employer, at risk of
employer displeasure and retaliation , is a factor properly to be taken into
consideration in evaluating the credibility of such witnesses . Georgia Rug
Mill, 131 NLRB 1304, 1305, fn. 2, enfd. as modified 308 F 2d 89 (C.A.5);
Wirtz v. B A C. Steel Products, Inc., 312 F.2d 14, 16 (C.A.4) Based upon
testimonial demeanor as closely observed, I was extremely favorably im-
pressed by both Turner and Leach ( as well as by Harrell , who, however, is
an interested party, as is Respondent).
7 I.e., I day before the "deadline" for preelection speeches laid down by
the Board in Peerless Plywood Company, 107 NLRB 427.
8It appears from the undisputed testimony of Union Business Manager
Simway Young that at this time the entire Florence plant was ununionized.
9 Hiring "from the gate" was explained by Respondent's employee rela-
tions superintendent and witness Wallace to mean hiring directly from the
outside, without coming from somewhere else in the plant.
be separated from the rest of the plant as "an individual
group," with no "rollback" rights and no job elsewhere in
the plant in case of any layoff or failure of a "progression"
test.
The testimony of Respondent's Florence Plant Shift
Supervisors Stevens and Henricksen and of its Shift Fore-
man White, as well as that of its Employee Relations Super-
intendent Wallace-as Respondent's witnesses-indicates
the existence of considerable voiced concern by employees
after, as well as before, the election as to what would happen
if they failed a "progression" test in the event of unioniza-
tion. According to the testimony of each, they informed the
employees that they did not know but that "since the Union
had been certified, that this was a negotiable item."10 How-
ever, Stevens and Henricksen conceded on cross-examina-
tion that at no time were they informed by any superior that
the Company would change its longstanding, preunioniza-
tion policy of returning ("rolling back") failed employees to
their prior jobs or to the "pool." And White conceded that
of the employees who inquired of him as described above,
most would have stood to lose (i.e., in seniority) in case of
the return of any failed control equipment mechanic trainee
to his previous work unit or to the "pool." (What this actual-
ly means, is that such an employee-i.e., one remaining in
the unit-would stand to "lose" an advantage he had
"gained" when the other employee left the unit with the
hope that the latter would pass a "progression" test; on the
theory that if the leaving employee passed the "progression"
test he would not return to his previous work unit, whereas
if he failed the "progression" test and returned to his previ-
ous work unit he would pick up his previous seniority, so
that the remaining employees in that previous work unit-
junior to him-would not reap the same "windfall" in sen-
iority gain that they would if the employee passed his "pro-
gression" test or was discharged without being permitted to
return to his previous work unit or to the pool.') White fur-
ther conceded that he omitted to explain to these inquiring
employees (who stood thus to "lose" fr$m a return of failed
control equipment mechanics to their previous work units
or to the "pool") that the same "danger" of "loss" to them
had existed previously (i.e., prior to unionization) if any
such failed trainee returned to his previous work unit (and
also that the same "danger" of "loss" still continued to exist
with regard to failed general mechanics not in the union-
represented control equipment mechanics unit).
Testifying as Respondent's witness, its former Plant
Manger Alden D. Bray conceded that as of the time of the
Board-conducted election and certification Respondent
had an existing policy of "rollback" or return to previous
work unit (or to the "pool") in the case of control equipment
mechanic trainees failing a "progression" test; that he did,
indeed, 2 days before the election address the assembled
control equipment mechanics, telling them their problems
could be handled without unions, urging them to vote
against union representation, and illustrating his talk with
a circle or pie and a removed segment thereof, in connection
with discussion about the handling of control equipment
mechanics who failed a "progression" test in the event of
10 The quoted portion is actually the testimony of Henricksen, although
Stevens and White also testified substantially the same. See In . 5, supra
E. I. DUPONT DE NEMOURS 1047
unionization. According to him, he emphasized strongly
that there would be "honorable negotiations."
At the conclusion of General Counsel's case-in-chief,
the following colloquy occurred in connection with
Respondent's motion to dismiss the complaint:
MR. HANNON [Respondent 's Counsel]: Your Honor,
I move that the Complaint be dismissed due to failure
of General Counsel to assume the burden of proof.
TRIAL EXAMINER [to Counsel for General Counsel]:
Do you want to be heard?
MR SMITH [Counsel for General Counsel]: I think
that I have very clearly made a prima facie case. I have
very clearly shown that the company's past practice has
been that when an employee fails a progression test to
send him back to the labor pool; but that in this in-
stance , because of the union, the union 's victory, the
company discriminated against one of the people in the
bargaining unit.
MR. HANNON. Your Honor, I don't think that that is
the case. I think that it is evident from Mr., from the
testimony that what transpired was following the certi-
fication; in fact, there were two separate groups where
previously there had been one. This created a problem.
TRIAL EXAMINER What were the two separate
groups?
MR HANNON There are two separate groups; there
is the certified control mechanic group; the other group
was the remainder of the production and maintenance
force.
TRIAL EXAMINER . The uncertified group?
MR HANNON That's right.
TRIAL EXAMINER What was it that created the
change in the group, the certification?
MR. HANNON. Because there were policies in exist-
ence that had been brought into existence at a time
when there only was one group.
TRIAL EXAMINER: Well, I think I follow your position
on that but what I am asking you is: What had caused
the single group prior to the certification to become a
double group, so to speak; was it the certification?
MR. HANNON It was the certification.
TRIAL EXAMINER Just so I know your position.
MR. HANNON. Yes, sir, it was a natural consequence
of the certification ....
TRIAL EXAMINER: Well, Mr. Hannon, let me ask you
this question. It would seem at this point that, maybe,
the facts are not in-anyway, up to the present time-
in material dispute. If I understand your position cor-
rectly-let me ask you this: put it this way, prior to the
certification of the union here, the company had a
policy of returning employees to their former job or to
the plant pool if they didn't pass a progression test, is
that correct?
MR HANNON • That is correct.
TRIAL EXAMINER After the union was certified here,
did the company change that policy?
MR HANNON Your Honor, let me answer this way;
the problem was raised by one of the control mechanics
failing the test.
TRIAL EXAMINER That was Harrell.
MR. HANNON: That was Harrell ....
TRIAL EXAMINER.... Mr. Hannon, in the event that
the union had not been certified by the Board in this
case, would Mr. Harrell have been returned to his for-
mer job?
MR. HANNON I can't answer that, Your Honor. I
could say this; the basic premise again is that there
would have only been this one inter-operable group.
TRIAL EXAMINER: Well, assume that the union had
not been engaged in any kind of activity here; in fact,
let's assume that the union wasn't in the plant on No-
vember 26th of 1971, and assume that all of the facts
were the same; in other words, everything was the same
except that there was no union. In case Harrell failed
his second test, would he have been returned to the
pool or to his former job?
MR HANNON. Yes sir, the conditions; if the condi-
tions were as you just related them.
TRIAL EXAMINER That is the assumption.
MR. HANNON And again, as you made the point, the
thing that made the difference here was the fact that we
did have a separate unit under the direction of the
Board.
TRIAL EXAMINER I am aware of that.
MR HANNON But I wish to point out also that
anything that has developed that would have created a
multi-group situation would have presented the plant
with the same problem.
TRIAL EXAMINER I understand your position. There-
fore, it was the Board action, in effect, in certifying the
union that cost Harrell his job, is that correct?
MR HANNON. Yes, sir.
3. Discharge of Harrell: facts as found
It is finally alleged and denied that, in violation of
Section 8(a)(1) and (3), on November 26 Respondent dis-
charged and has since failed and refused to reinstate its
employee Hilton Harrell.
The necessary background to an understanding of
Respondent's discharge of Harrell-a control equipment
mechanic trainee who failed a "progression" test-after the
Board's certification of the Union, has already been provid-
ed. The operational facts relating to the Harrell discharge
itself are not in dispute. Harrell was in Respondent's employ
continuously for over 10 years at the Florence plant before
he was discharged under Respondent's change in policy
following on the heels of and concededly as a result of the
Board's certification of the Union, of no longer permitting
a control equipment mechanic trainee failing a "progres-
sion" test to "roll back" or revert to his previous work unit
or to the "pool."
Harrell's work history at Respondent's Florence plant
is as follows. Entering employ there on July 5, 1961, in the
finishing area, he remained in that area until December 5,
1966, advancing from class (i.e., pay level) I to class V at
increasing pay. Entering the General Mechanic training
program on December 5, 1966, at class II, he moved up
from general mechanic class II to general mechanic or con-
trol equipment mechanic trainee class VI. He then (May or
June 1969) failed a "progression" test for class VII and was
dropped back to the "pool" in class II, but almost imme-
diately took a vacancy in his former finishing area in class
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. He remained in the finishing area again from June 9,
1969, to May 11, 1970, again moving up to class V. On May
11, 1970 he was shifted to the general mechanical-control
equipment groups at class II again, where by May 3, 1971,
he had once again moved up to class IV. Although he failed
a "progression" test for class V, he passed a retest on August
2, 1971. However, on October 25, 1971-several weeks after
the Board certification of the Union-he failed a "progres-
sion" test for class VI. Under Respondent's longstanding
policy in existence prior to the Board certification-as ex-
plained above-and still adhered to in this aspect, he was
considered to be ineligible for a retest, since he had once
failed (although passing on retest) his last previous "pro-
gression" test (i.e., for class V); but under Respondent's
brand-new policy, not adhering to its longstanding policy in
this aspect, he was not permitted to "roll back" or revert to
his previous work unit or to the "pool." Instead, on Novem-
ber 26 he was discharged and it was indicated to him that
the union representative would tell him why. When Harrell
dispiritedly remarked to Maintenance Foreman Smith "It is
rough to be laid off or terminated just before Christmas,"
Smith's response was that "[You have] the 18 men who
voted for the union to thank for this." I i (Harrell was still not
a union member at the time.) After 10 years of service,
Harrell was given no severance pay, the stated reason being
that he had been given 2 or more weeks' notice of termina-
tion.
It is conceded that at the time of his termination 12
Harrell, in view of his 10 years of continuous employment
at the Florence plant, had greater seniority than other em-
ployees in the group to which he would have reverted had
he been permitted to "roll back" as before the Union was
certified; further, that even today, if an employee not in the
certified bargaining unit (i.e., not a control equipment me-
chanic) failed a "progression" test, he would be returned to
his previous work unit or to the "pool"; and, finally, that if
Harrell had been restored to his previous job or to the
"pool," it would not have affected the employees there any
more than it would have if this had been done-as it would
have-prior to Board certification of the Union here. Flor-
ence Plant Manager Bray testified on cross-examination
that he did not consider Respondent's continuation, after
the Board certification of the Union, of its longstanding
preelection policy of "rollback" of failures, in the case of the
general mechanics, as part of the "problem" following the
Board's certification of the control equipment mechanics
unit, since "we had a set up there and we felt that we would
continue it for the time being." He added, "I'm not blaming
the NLRB-they made the decision in all honesty, feeling
it was a good one, and probably was, for them."
4. Economic threats and discharge of Harrell:
discussion and findings
Two days before a Board-conducted Union represen-
tation election among the control equipment mechanics at
"Corroborated in substance by General Counsel witness Turner, al-
though Smith denies it was he who made the remark , while conceding that
"The comment was made."
12 At that time there were about 55 general mechanics and 27 control
equipment mechanics and trainees in the Florence plant.
Respondent's Florence plant, Respondent' s plant manager
in effect announced to those employees, confirming previ-
ous indications by Respondent to them, that if they selected
the Union to represent them, they could no longer count on
enjoying their longstanding right or privilege of being
"rolled back" or reverting to their previous work units or to
the Company "pool" if they failed to pass a "progression"
or promotion test. To employees, such "rollback" or rever-
sion is obviously a highly valued condition of employment,
since it is their assurance of job security and spells the
difference between a job or no job.
When the Union won the election, Respondent made
good its promise. It eliminated its longstanding "rollback"
system for its control equipment mechanics (only) and fired
Harrell, an employee of 10 years' standing with no adverse
employment history other than failure to pass a "progres-
sion" test.
Respondent now contends that its actions were jus-
tified because the election and the Board's certification ef-
fected a "change" like the slicing away of a piece from the
rest of a pie. The fact is, however, that the only change that
had taken place was the change that Respondent itself made
when its employees exercised their statutorily guaranteed
right under the Act to select a collective-bargaining repre-
sentative. If-as is the fact-prior to unionization
Respondent's longstanding practice was to permit a control
equipment mechanic who failed to pass a "progression" test
to "roll back" or revert to his previous work unit (or to go
to the "pool"), there is no reason why this practice, a valu-
able right to the employees, could not have been maintained
after unionization. Respondent's threat to abandon this pol-
icy and system as its pricetag on unionization, followed by
its actual implementation of that threat, were in truth and
in fact no less than the practice of economic duress upon its
employees for exercising their right to bargain collectively
under the Act, in plain disregard of its purpose, policies, and
provisions. By Respondent's logic, it would have been
equally justified in reducing its control equipment mechan-
ics' wage scale because they elected to be represented by a
union; or, as recently held violative of the Act in The B. F.
Goodrich Company, 195 NLRB No. 152, to make employees
electing to bargain collectively ineligible to participate in an
employees' stock purchase plan.
Respondent further defends its actions as justified be-
cause of its alleged concern over "subjecting ourselves to
possible bargaining" and "find[ing] ourselves in a bargain-
ing position" 13 with regard to unit employees reverting to a
nonunit (i.e., uncertified or unrepresented) group (e.g., the
"pool"), even though the Union does not represent that
nonunit group. Respondent's concern is misplaced, since
the established bargaining unit continues as certified by the
Board, regardless of the removal, displacement, or transfer
of specific members therefrom. Any bargaining obligation
on Respondent's part vis-a-vis the certified bargaining unit
or any member thereof continues so long as it is in existence
and he continues to be a member thereof, or even after he
is removed therefrom in the event his removal is improper.
If, on the other hand, any bargaining unit employee (such
as Harrell here) is properly "rolled back" or reverts to his
13 Testimony of Respondent's Employee Relations Superintendent Wal-
lace
E. I. DUPONT DE NEMOURS
previous work unit or to the "pool," or for any other reason
is properly removed from or leaves and ceases to be a mem-
ber of the bargaining unit represented by the Charging Par-
ty Union here, he would no longer be represented by the
union in the unit to which he reverts or transfers (unless, of
course, that unit is also represented by the Union). Fur-
thermore, one of Respondent's acknowledged objectives in
changing its "rollback" policy after certification of the Un-
ion was to insulate nonunion employees from "bumping"
by Union employees, although they continued to be subject to
"bumping" by nonunion employees-a clear act of discrim-
ination and reprisal against the newly unionized employees,
such as was condemned in strong terms in N.L.R.B. v. Do-
than Eagle, Inc., 434 F.2d 93, 98-99 (C.A.5).
Respondent also insists that it bargained with the new-
ly certified Union concerning its changed policy before it
discharged Harrell in implementation thereof. But, even
aside from the fact that the proof establishes that Respon-
dent concededly at no time deviated from its described
change of policy, the fact that a party is "willing" to bargain
about its change of policy and unfair labor practices does
not make it any the less a change of policy and unfair labor
practice.14 15
To say, as in effect Respondent does, that an
employee's discharge was the effect of the unionization or
certification is to say that the exercise by employees of their
rights under the Act caused the employee's discharge, which
is the very violation charged, since the Employer's action
under the circumstances shown at the very least discourages
employees, and realistically effectively deprives them, from
exercising rights which it was the Act's supreme purpose
to secure to them. That economic threats of the nature
described-carried out or not-are violative of Section
14 As indicated, there is at least considerable doubt whether Respondent
at any time bargained or was willing to bargain on the subject, since it merely
announced the change and concededly never deviated therefrom, taking the
position (as credibly described by General Counsel witness Simway Young,
the union representative, and in essence confirmed by Respondent's Employ-
ee Relations Superintendent Wallace ) that there were now , because of the
Board's certification of the Union, "two groups of people ; one union and one
nonunion ." This is still essentially the position that it takes here . It is sophis-
try to characterize as good-faith "bargaining"-as Respondent does--discus-
sion over a change one has already made or undeviatingly insists on making;
this is mere discussion as to whether to undo or change the change, as
distinguished from earnest discussion as to whether to make the change. Cf.
N.L R. B. v. Dothan Eagle, Inc., 434 F.2d 93, 98 (C.A.5).
15 Respondent has also unearthed a 25-year-old document of 1947 from the
archives of one of its other plants (Spruance rayon plant) which it assertedly
regards as a parallel situation having some precedential vitality here. While
clearly distinguishable as, among other things, involving rival unions-not
the situation here--m any event that ancient ancillary situation elsewhere is
no lodestone for official determination of the question here , even on the
assumption that it did not itself also involve an unfair labor practice. Nor,
for the same reason , are the craft severance cases, heavily relied upon by
Respondent, involving formal craft severance and distinct membership in
separate units represented by different unions, here applicable or determina-
tive. This is not a craft severance representation proceeding , but an unfair
labor practice proceeding. Election and Board certification of a bargaining
representative in an appropriate bargaining unit in an unorganized plant
does notper se-contrary to Respondent's novel-seeming suggestion-effect
a "craft severance"; according to Respondent's novel-seeming theory, the
mere election and certification of a bargaining representative in a formerly
unrepresented unit justifies the employer in abandoning longstanding poh-
cies of betterments as to those employees who have exercised their statutory
right to bargain collectively. The situation here presented is totally unlike that
resulting from an official craft severance where each craft is separately repre-
sented by different unions.
1049
8(a)(1) is abundantly clear . N.L.R.B. v. Gissel Packing Co.,
395 U.S. 575, 616; N.L.R.B. v. Exchange Parts Co ., 375 U.S.
405,409 . 16 That carrying out the threats is a further viola-
tion of the Act is not open to doubt , even under the explicit
wording of the statute . Cf. Bendix- Westinghouse Co. v. N.L.
R.B., 443 F .2d 106 (C.A. 6); N.L.R.B. v. Dothan Eagle, Inc.,
434 F.2d 93, 98-99 C.A. 5); Dura Corp. v. N.L.R. B., 380
F.2d 970 (C.A. 6); The B. F. Goodrich Company, 195 NLRB
No. 152; McCann Steel Company, Inc., 184 NLRB No. 90,
modified on other ground 448 F .2d 277 (C.A. 6).
For these reasons and upon the record as a whole, it is
accordingly determined that Respondent through its de-
scribed economic threats and discharge of Harrell inter-
fered with, restrained, and coerced employees in their
exercise of rights under Section 7 , in violation of Section
8(a)(1), and discriminated against employees in regard to
the hire , tenure , and terms and conditions of their employ-
ment and thereby discouraged membership in a labor or-
ganization in violation of Section 8(a)(3) of the Act.
Upon the foregoing findings and the entire record, I
state the following:
IV. CONCLUSIONS OF LAW
a. At all times here material, Respondent E. I. du Pont
de Nemours and Company has been and is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
b. At all times here material, International Brother-
hood of Electrical Workers, Local Union 382, AFL-CIO,
Charging Party herein, has been and is a labor organization
with the meaning of Section 2(5) of the Act.
c. Assertion of jurisdiction herein is proper.
d. By its statements and threats to employees that in the
event of unionization they would or might stand to lose their
"rollback" or job reversionary rights or privileges and be
terminated if they failed a "progression" test, or that such
privileges would be jeopardized, as described in section III,
supra, Respondent has interfered with, restrained, and
coerced its employees in the exercise of their rights under
Section 7, constituting unfair labor practices in violation of
Section 8(a)(1), of the Act.
e. By discharging its employee Hilton Harrell (also
known as James Hilton Harrell) on November 26, 1971, and
failing and refusing at all times since then to reinstate him,
because Respondent refused to allow him to "roll back" or
revert to any other employment with Respondent after he
had failed a "progression" test, under the circumstances
described in section III, supra, Respondent has discriminat-
ed against employees in regard to the hire, tenure, and terms
and conditions of their employment, and, further, has inter-
fered with, restrained, and coerced employees because of
their exercise of rights under Section 7, constituting unfair
labor practices under Section 8(a)(3) and (1) of the Act.
f. The unfair labor practices and each of them referred
to in Conclusions of Law "d" and "e", supra, have affected,
16 As there pointed out by the late Mr Justice Harlan for the unanimous
Court, economically spiced preelection pronouncements by an employer are
affreighted with "the suggestion of a fist inside the velvet glove . Employees
are not likely to miss the inference that the source of benefits now conferred
is also the source from which future benefits must now and which may dry
up if it is not obliged "
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affect, and will continue to affect commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
g. It has not been established by a fair preponderance
of the substantial credible evidence upon the record as a
whole that Respondent has violated Section 8(a)(1) by inter-
rogating employees on or about September 7, 1971, con-
cerning their union activities, sympathies, and desires, as
alleged in the complaint.
h. Any conclusion of law set forth in section III, supra,
or elsewhere in this decision than in section IV, is hereby
incorporated at this point in these Conclusions of Law with
the same force and effect as though, here specifically made
and set forth.
V. REMEDY
To remedy the violations found, I shal recommend the
usual cease-and-desist order and affirmative relief custom-
arily required in cases of this variety. Accordingly, the rec-
ommended Order will require Respondent to cease and
desist from the unfair labor practices found, and to offer its
discharged employee Harrell immediate and full rein-
statement to employment at the Florence plant in the same
status-i.e., previous work unit or "pool"-as he would
have had in the event Respondent had not changed its
"rollback" policy and system after Board certification of the
Union. Such reinstatement shall be without prejudice to
Harrell's seniority and other rights and privileges. It shall
also require that Respondent make Harrell whole for any
loss of earnings he may have suffered in consequence of his
unlawful discharge on November 26, 1971, by payment to
him of a sum of money equal to that which he normally
would have earned as wages if Respondent had permitted
him to "roll back" in accordance with its policy and system
in effect prior to Board certification of the Union, from
November 26, 1971, to the date of Respondent's offer to
reinstate Harrell as aforesaid, less his net earnings if any
during such period; backpay and interest to be computed
in the manner prescribed in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716. Respondent shall also be required to make available
necessary records for computation of backpay and to de-
termine its compliance with the Order.
In view of the fact that the violations found to have
been committed, particularly those after the Board's certifi-
cation of the Union following the statutory election, stab
directly at the very heart of the purposes, policies, and pro-
visions of the Act, including the Board's administration of
its election and certification responsibilities and powers, it
is my opinion that inclusion in the Order of a requirement
that Respondent cease and desist from infringing in any
manner upon the rights of employees under Section 7 is not
alone warranted but called for, and I shall accordingly so
recommend.17Finally, the Order shall also provide for the
usual notice posting and for appropriate notification to the
discharged employee in the event he is serving in the United
States Armed Forces.
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record in this proceeding,
17 Cf. N.LR B v Entwistle Mfg. Co, 120 F.2d 532 , 536 (C A.4).
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 18
It is hereby ordered that E. I. du Pont de Nemours and
Company, its officers agents, successors, and assigns shall:
1. Cease and desist from:
a. Threatening employees, in violation of the National
Labor Relations Act, as amended, that, in the event they
select International Brotherhood of Electrical Workers, Lo-
cal Union 382, AFL-CIO, or other union, as their bargain-
ing representative, if they fail to pass a "progression" or
promotion test they will lose their right or privilege to "roll
back" or revert to or to be reinstated in their previous work
unit or Respondent's "pool" (as appropriate •under
Respondent's policy, system, and practice in effect prior to
such unionization), but will instead be discharged.
b. In violation of the Act, discouraging membership in,
affiliation with, or lawful activity on behalf of International
Brotherhood of Electrical Workers, Local Union 382, AFL-
CIO, or any other labor organization, by revoking, cancel-
ling, or modifying, in consequence of the designation of
such labor organization by members of an appropriate unit
of its employees as their bargaining representative, any poli-
cy, practice, or system of permitting employees to "roll
back" or be reinstated to or resume or be eligible for other
jobs with Respondent in case of failure to pass "progres-
sion" or promotion tests.
c. Discouraging membership in, affiliation with, or law-
ful activity on behalf of International Brotherhood of Elec-
trical Workers, Local Union 382, AFL-CIO, or any other
labor organization, by discharging, terminating, laying off,
suspending, furloughing, or refusing or failing to reinstate
to his former or substantially equivalent job any employee,
in consequence of a change in policy by Respondent be-
cause employees have duly designated or the Board has
certified said labor organization as the bargaining repre-
sentative of an appropriate bargaining unit of which such
employee is a member; including a change of policy so as
to discontinue, cancel, or modify Respondent's policy, if
effect prior to such unionization or certification, of permit-
ting employees who have failed a "progression" or promo-
tion test to "roll back" or revert to their previous work unit
or to Respondent's "pool."19
18 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Section
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.
19 In its posthearing brief, Respondent urges that "even if it is believed that
some right to return to the old unit continued to exist [after the Union's
election and Board certification here], it should not be found that that right
was frozen and not subject to change in the collective -bargaining process."
Of course , no such finding as feared by Respondent is here made, intended,
or contemplated . Even without explicitly making such an unusual, disclaim-
ing "negative" finding, it is obvious that the parties here , as all parties, will
continue to be free-under and notwithstanding the Order herein, which
must, however, be complied with so as to restore the status quo ante before
the violation-to bargain in good faith concerning the wages , hours, and
other terms and conditions of employment of the employees in the certified
bargaining unit; as distinguished from making changes therein and then
"bargaining" about whether to "change" or unchange the changes already
made or insisted upon being made and then in fact made . The "bargaining
E. I. DUPONT DE NEMOURS
d. In any other manner interfering with , restraining, or
coercing employees in the exercise of their right to self-
organization ; to form, join , or assist any labor organization;
to bargain collectively through representatives of their own
choosing ; to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection;
or to refrain from any and all such activities.
2. Take the following affirmative actions which are
necessary to effectuate the policies of the Act:
a. Offer to Hilton Harrell (also known as James Hilton
Harrell) immediate and full reinstatement to his former em-
ployment status in Respondent's Florence plant on Novem-
ber 26 , 1971, when Respondent refused to permit Harrell to
"roll back" or revert to his previous work unit or
Respondent's "pool" after Harrell had failed a "progres-
sion" test ; so that Harrell may, upon receipt of such offer
of reinstatement , elect to and thereupon be "rolled back" or
reverted and returned to his previous work unit or to
Respondent 's "pool" (whichever is appropriate under
Respondent 's policy , system, and practices in effect prior to
the Union 's election on September 23, 1971, as bargaining
representative); without prejudice to Harrell's seniority or
other rights and privileges ; and make Harrell whole for any
loss of pay suffered in consequence of his discharge by
Respondent on November 26, 1971, in the manner set forth
in the "Remedy" portion of the Decision of which this
Order forms a part . In the event that Harrell is presently
serving in the Armed Forces of the United States, imme-
diately notify him of his right to such full reinstatement,
upon application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the Universal
Military Training and Service Act.
b. Preserve and, upon request, make available to the
Board or its agents for examination and copying , all payroll
records, social security payment records, timecards , person-
nel records and reports , and all other records necessary to
determine the amounts of backpay due and the extent of
compliance with the terms of this Order.
c. Post at its plant in Florence , South Carolina, copies
of the Notice attached hereto marked "Appendix B.1120 Cop-
ies of said Notice , on forms provided by the Board's Re-
gional Director for Region 11 shall, after being signed by
Respondent's authorized representative , be posted in said
plant by Respondent immediately upon receipt thereof and
maintained by it for 60 consecutive days thereafter in con-
spicuous places including all places where notices to em-
ployees are customarily posted . Reasonable steps shall be
taken to insure that said Notices are not altered , defaced,
or covered by any other material.
d. Notify the Regional Director for Region 11, in writ-
impasse" suggested by Respondent here was purely of its own creation, since
it first made (or insisted upon making and in fact made ) a radical change in
its longstanding personnel policy because employees exercised their statutory
right to bargain collectively , and then refused to undo that change, while
ostensibly holding itself out as prepared to "bargain" about the change it had
announced. To characterize such a situation as a "bargaining impasse," as
Respondent does, traumatizes meaning . It is a word wizardry which sidesteps
the fundamental question of whether Respondent could lawfully make the
change in the first place under the circumstances described . If it could, it
would be the wedge to every conceivable type of employer retaliation against
employees for selecting a union to represent them Cf . N.L.R.B. v. Dothan
Eagle, Inc., 434 F 2d 93, 98-99 (C.A.5).
1051
ing, within 20 days from receipt of this Decision, what steps
have been taken to comply herewith 2'
IT IS FURTHER ORDERED , that the complaint herein, dated
January 17, 1972 , be and it is hereby dismissed as to all
violations therein alleged but not herein found.
20 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the Notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
21 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read : "Notify
the Regional Director for Region 11, in writing , within 20 days from the date
of this Order, what steps have been taken to comply herewith."
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to present
evidence and arguments, the decision is that E. I. du Pont
de Nemours and Company has violated the National Labor
Relations Act, and we have therefore been ordered to post
this notice and carry out its terms:
The National Labor Relations Act gives you, as an
employee, these rights:
To engage in self-organization
To form, join, help or be helped by unions
To bargain collectively through a representative
of your own choice
To act together with other employees to bargain
collectively or for other mutual aid or protection;
and
If you wish, not to do any of these things.
WE WILL respect all of your rights under the Na-
tional Labor Relations Act.
WE WILL NOT threaten, nor carry out the threat, that
in the event employees select International Brother-
hood of Electrical Workers, Local Union 382, AFL-
CIO, or other union, to represent them we will discon-
tinue our policy that employees who fail a progression
test may "roll back" or return to their previous work
units or to the "pool."
WE WILL NOT discharge any employee who has'
failed a progression test by refusing to allow him to
"roll back" or return to his previous work unit or to the
"pool" because he is a member of a bargaining unit
represented by International Brotherhood of Electrical
Workers, Local Union 382, AFL-CIO, or other union.
WE WILL NOT, in violation of the National Labor
Relations Act, discourage membership in or giving
help to or taking help from International Brotherhood
of Electrical Workers, Local Union 382, AFL-CIO, or
any other labor organization of our employees or which
our employees may wish to join or to help or take help
from.
WE WILL NOT In any other manner interfere with,
restrain, or coerce you in the exercise of your right to
self-organization; to form, join, or assist any labor or-
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ganization; to bargain collectively through representa-
tives of your own choosing; to engage in concerted
activities for the purposes of collective bargaining or
other mutual aid or protection; or to refrain from any
and all such activities.
WE WILL offer Hilton Harrell (also known as James
Hilton Harrell), whom we discharged on November 26,
1971, when we refused to permit him to "roll back" or
return to his previous work unit or to the "pool" after
he failed a progression test, immediate and full rein-
statement to his former employment status prior to his
discharge on that date, so that he may if he wishes be
"rolled back" and return to the "pool" (or to his previ-
ous work unit, if appropriate under our policy applica-
ble to employees not in Harrell's bargaining unit);
without prejudice to Harrell's seniority and other rights
and privileges; and we will also pay Harrell backpay,
with interest, for any wages lost by him.
All of you are free to join or not to join, to help or not
to help, or to be helped or not to be helped by, Interna-
tional Brotherhood of Electrical Workers, Local Union
382, AFL-CIO, or any other union, as you see fit,
without any interference, restraint, coercion, or retalia-
tion from us in any way, shape, or form.
E. I. du PONT de NEMOURS AND
COMPANY
(Employer)
Dated By
(Representative) (Title)
If the above employee to be reinstated is serving
in the Armed Forces of the United States , we shall
immediately notify him of his right to full rein-
statement, upon application after discharge from the
Armed Forces , in accordance with the Selective Service
Act and the Universal Military Training and Service
Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office , 1624 Wachovia Building, 301
North Main Street , Winston-Salem, North Carolina 27101,
Telephone 919-723-2300.