85 N.L.R.B. 1516 (N.L.R.B. 1949)

E. I. du Pont de Nemours and Co., Inc.

National Labor Relations Board - Board DecisionsSep 19, 1949

85 N.L.R.B. 1516 (N.L.R.B. 1949)

In the Matter of E., I. DU PONT DE NEMOURS AND COMPANY, INC., RAYON DIvISION,1. EMPLOYER and TEXTILE WORKERS UNION OF AMERICA, CIO, PETITIONER Case No. 10-RC-548.-Decided September 19, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing in this matter was held before William J. Rains, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby af- firmed.2 Upon the entire record in the case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations named below claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : All parties agree that an appropriate unit should consist of all pro- duction, maintenance, and powerhouse employees of the Employer at its plant and village in Old Hickory, Tennessee, excluding watchmen, guards, firemen, fire inspectors, and office, clerical, salaried technical, professional, and supervisory employees.3 The only disagreement is with respect to relief foremen and instructors, whom the Petitioner would exclude from the unit on the ground that they are supervisors, and C. H. test checkers, whom the Petitioner would exclude because Name of Employer as amended at the hearing. s The Employer ' s motion to dismiss the petition , which was referred to the Board for ruling, is hereby denied . The grounds on which this motion was based are not entirely clear to us, and in any event we perceive of no valid reason for dismissing the petition. 5 This is substantially the same unit which we found appropriate in 1945 ( 62 N. L. R. B. 146). 85 N. L. B. B., No. 237. 1516 E. I. nu PONT Dn NEMOURS AND COMPANY , INC. 1517 they are clerical employees. The Employer and the Intervenor 4 con- tend that all three categories should be included in the unit as they were in our previous decision. Relief foremen are regular operating employees who are called upon -to substitute for regular foremen when the latter are out sick or on vacation, or when the work load of the regular foremen becomes too great .5 When so acting, they are vested with substantially the same authority as the regular foremen have,6 including the authority to as- sign employees to certain jobs and to direct them in their work, in the performance of which they are required to use independent judg- ment. Thus, the relief foremen do assume supervisory duties when they are so engaged. It appears, however, that the assumption of such duties by some of these employees is too irregular or infrequent to make -them supervisors within the meaning of the Act.7 We shall, there- fore, exclude from the unit only those relief foremen who serve in that .capacity either regularly 8 or for substantial periods of time in the .aggregate during the course of the year." Instructors perform the duties usually associated with that classifi- cation, which, except for reinstruction of older employees as well as in- struction of new employees, have remained the same as they were when considered in our previous decision. We find, therefore, as we did previously, that the instructors are not supervisors, and we shall in- clude them in the unit. V. H. Test Checkers: There are two employees in this category who are hourly paid 10 and work under an engineer in the technical depart- ment. One spends all his time in manual labor, which consists princi- pally of locating and picking up certain yarn for testing by others. The other spends 75 percent of his time in the same manner, and the re- mainder in gathering data for reports which describe the quality of the 4 Old Hickory Rayon Employees' Council. 5In the latter situation the relief foremen either assist the regular foremen or inde- ,pendently direct the work of groups of employees on special jobs. 0 The principal difference in authority appears to be in the fact that reliet foremen, 'because of their shorter tenure as foremen, do not have the authority effectively to recom- mend promotion and demotion, as do the regular foremen. 7 Matter of The Ohio Associated Telephone Company, 82 N. L. R. B. 972. 8 Such as J. P. Drawn, Rachel Joynt, C. S. Rigsby, and Emma Paul, who serve as relief foremen regularly 1 day each week. See Matter of Freeport Sulphur Company, 57 .N. L. R. B. 1756; and Matter of E. I. du Pont de Nemour8 & Company, 61 N. L. R. B. 473. For the reasons stated in their dissenting opinion in Matter of The Texas Company, .Salem Gasoline Plant, 85 N. L. R. B. 1211. Chairman Herzog and Member Houston would treat the problem of part-time supervisors as one of eligibility, and would permit those of them who spend more than 50 percent of their time as rank-and-file employees to vote in the election. Cf. Matter of Continental Industries; Incorporated, of Kansas City, 76 N. L. R. B. 561. We reject, however, the Petitioner's contention that 20 days a year is a substantial period -of time for this purpose. 10 Clerical employees are paid on a salary basis, 1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD yarn being processed. We find that the C. H. test checkers are not clerical employees but production employees, and we shall, therefore, include them in the unit. We find that all production, maintenance, and powerhouse em- ployees of the Employer at its plant and village in Old Hickory, Tennessee, including instructors and C. H. test checkers, but exclud- ing relief foremen who serve in that capacity either regularly or for substantial periods of time during the course of the year," watchmen, guards, firemen, fire inspectors, office, clerical, salaried technical, and professional employees, and supervisors- as defined in the Act, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and su- pervision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or rein- stated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether they desire to be represented, for purposes of collective bargaining, by Textile Workers Union of America, CIO, or by Old Hickory Rayon Employees' Council, or by neither. 31 See footnotes 8 and 9, supra.