E. I. DuPont De Nemours and Co.

National Labor Relations Board - Board Decisions

Mar 19, 1974

209 N.L.R.B. 792 (N.L.R.B. 1974)

792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. I. DuPont De Nemours and Company and
Chemical Workers Association , Inc. Case
4-CA-6500
FINDINGS OF FACT
I. JURISDICTION OF THE BOARD
March 19, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On November 30, 1973, Administrative Law Judge
George J. Bott issued the attached Decision in this
proceeding. Thereafter, General Counsel and the
Charging Party filed exceptions and supporting
briefs, and Respondent filed a brief supporting the
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs 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
Relations Board hereby adopts as its order the
recommended Order of the Administrative Law
Judge and orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
GEORGE J. BoTT, Administrative Law Judge: Upon a
charge of unfair labor practices filed by Chemical Workers
Association (Union) on July 5, 1973,i agamstE. I. DuPont
De Nemours and Company (Respondent or Company),
the General Counsel of the National Labor Relations
Board issued a complaint on August 31, 1973, alleging that
Respondent had violated Section 8(a)(1) of the National
Labor Relations Act, as amended, herein called the Act, by
informing the Union that draftsmen would be assigned
more advanced work and granted salary increases if they
were excluded from the clerical unit represented by the
Union. Respondent filed an answer and a hearing was held
before me at Wilmington, Delaware, on October 17, 1973,
at which all parties were represented. Briefs have been
received from the parties and have been considered.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
Respondent, a Delaware corporation, with its principal
office and place of business at Wilmington, Delaware, is
engaged in the manufacture of chemicals at its Chambers
Works in Deepwater, New Jersey, the facility involved in
this proceeding.
During the year prior to the issuance of the complaint,
Respondent shipped products valued in excess of $50,000
from its Chambers Works directly to customers located
outside the State of New Jersey.
Respondent is an employer engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Chambers Works employs approximately 6,800
persons, approximately 4,800 of whom have been repre-
sented by the Union for over 30 years in separate
production and maintenance and clerical units . There are
about 400 employees in the clerical unit, and the
draftsmen, although not specifically mentioned by classifi-
cation, have been represented by the Union and covered
by the Union's clerical unit contract for 20 years or more.
The approximately 42 draftsmen in the clerical unit are the
highest paid of the 4,800 union-represented employees in
the plant, and they are also the only bargaining unit
employees under a merit system. Draftsmen are the only
employees in the clerical unit who perform nonclerical type
work.
According to the uncontradicted and credited testimony
of Works Engineer McKay, who is responsible for
designing and maintaining the plant, Respondent's design
group is principally composed of project engineers,
supported by the draftsmen. Draftsmen are the only
bargaining unit employees in the design group.2
McKay testified that Respondent has during the last few
years restructured the engineering department along
product lines in order to create a more efficient work force.
It has also been McKay's goal to have the draftsmen work
more closely with the engineers, and recently they have
been physically integrated into the design group in an
effort to make them a part of a team effort.
The design group at the Chambers Works has the
capacity to handle about $12 million worth of work a year,
and anything in excess of that amount is normally "farmed
out" to DuPont's central engineering department. McKay
said, however, that the forecast for design work to be done
at the plant in 1973 was in the $50 million range, and
Respondent's central engineering department was not fully
available to do all this work because it was overloaded with
work from other plants. As a consequence, pressure was
1 The charge was amended on August 8 and again on August 30, 1973. department for preparation of drawings for use by the construction
2 A project engineer is in charge and responsible for an entire project. department
Having prepared a "scope of work order," he transmits it to the drafting
209 NLRB No. 122
E. I DUPONT DE NEMOURS & CO. 793
put on the Chambers Works' design group to do more
work than it had in the past.
Hoping to be able to produce more design work with the
same number of people, McKay decided that there were
additional tasks that draftsmen were capable of perform-
ing, and he also concluded that if they were permitted and
encouraged to operate more independently of their own
supervisors and engineers (professionalize them), not only
would they work more efficiently but the project engineers
would have more time to do the extra work that was
foreseen . It was McKay's belief that draftsmen should be
promoted to a new classification called "designer" and
placed on the "exempt salary" payroll, which is outside the
bargaining unit. He presented his plan to higher officials
and it was approved.
In April 1973, James Scott, general superintendent of
employee relations at the Chambers Works, spoke to
Howard Wilbraham, a draftsman and the union area
representative who represented draftsmen, and told him
that there was a "possibility of management putting our
people on exempt salary and giving them an increase in
money and also the potential to move into a higher field if
their ability allowed ...." Wilbraham said it was clear
that this "possibility" included removing the draftsmen
from the bargaining unit. Stated differently, he said that if
draftsmen were placed on "exempt salary," they would
automatically be removed from the unit .3 Wilbraham and
Scott agreed that the matter should be kept confidential,
and Wilbraham said that he would only mention it to the
union president and vice president, which he did on the
next day, asking them, too, to keep the information
confidential.
A few days later, Scott spoke to union president and vice
president, Pollock and Morris, respectively, about the same
subject. Morris testified that Scott said he would like to
have the draftsmen out of the bargaining unit. He said that,
"basically," Scott stated that if the Union agreed to the
proposal, the draftsmen would "be furnished higher skilled
work which would enable the draftsmen to earn more
money over the long run." Morris testified that he
informed Scott that the Union did not wish to give up
representation rights for the draftsmen, but would continue
to represent them and was willing to bargain for an
increase in salary for them. I accept Morris' version that he
did oppose Scott's suggestion, but I also credit Scott's
version that he explained more of the problem to Morris
than appears in the latter's testimony.
About 3 weeks later, Scott again talked with Morns and
Pollock and asked them if they had any objection to him
raising the question about the draftsmen at the next
meeting of the executive committee. Neither official
indicated any serious objection to Scott's suggestion.4
On May 22, Scott presented Respondent's proposal to
the Union at the meeting of the executive committee, and
3 The contract excludes from its coverage "all salary roll employees
exempt under the Fair Labor Standards Act."
4 The labor agreement provides for several union-management commit-
tees to meet regularly . The executive committee is composed of all union
and management representatives involved in the administration of both
contracts
5 The clerical committee , also established by contract, includes area
representatives of employees in the clerical unit, union officials, and
the subject was given further attention in subsequent
meetings with the Union and its committee. In substance,
at the May 22 meeting and during the meetings with the
clerical committee on June 13, 21, and 28 and July 3,
management presented, explained, and' reiterated its
explanation of its offer, and the Union opposed it, arguing
that it could still represent draftsmen adequately even if
Respondent changed their duties and responsibilities.
In the May 22 meeting, for example, Scott opened the
subject by stating:
In the Clerical Union (sic) there are 40 draftsmen
who we would like to promote to exempt salary, so that
we could increase their earning power by assigning
them various types of work . Some of these people are
receiving higher wages now and are qualified to do
more complicated work which we would like to assign
them and compensate them for it . Some people could
advance further than others, but are held back by
contract rulers which do not favor a merit system of
promotion. These people will all receive an increase
immediately and merit raises at any later date.
Union Representative Shields, for example, responded
by pointing out that there had been no problem in the past
with the merit system, and when Scott commented that the
problem was not with the Union but in having draftsmen
who are qualified to do more important work for which
they could be compensated, Shields argued that the
Respondent should assign them those more difficult tasks
and compensate them under the present merit system.
Scott replied that "a merit system for Union members will
not work." Union Representative McGrory, a clerical,
asked if the issue should not have been first brought before
the clerical committee, and it was decided that that
procedure would be followed.
Clerical Representative McGrory's notes of the June 13,
1973, meeting with Scott, which she adopted in her
testimony, reflect Scott' s "comments on promoting Drafts-
men to Exempt Salary and out of the Bargaining Unit."
Scott stated that he had no wish to reduce union
membership, but he felt that the only way management
could achieve its goal was by promoting the draftsmen to
exempt salary positions . He noted the difficulty of
operating a true merit increase system under "a Union set-
up," and he said that after the employees were given "more
complicated work," they would receive "a raise immediate-
ly," and then, through the merit system, receive additional
salary increases in the future.
During the June 21 clerical meeting, Scott, in support of
management's proposal, pointed out that although there
had been "no problems over the years" in applying the
existing merit increase system to draftsmen, because of the
enormous construction program Respondent was under-
taking, it wished to give the draftsmen larger responsibili-
management representatives.
6 Scott testified that he did not state, or mean to state , "contract rules,"
for there are no contract rules governing the question He said that he
clarified his position in later meetings by explaining that a meet system
cannot operate under a "union set-up" because in such case it is difficult to
promote or assign employees on the basis of their abilities alone . Otherwise,
Scott agreed that the above statement, taken from minutes kept by a union
representative. is accurate.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties and more important assignments. He noted that many
of the draftsmen were capable of doing more difficult
tasks, which he said was to Respondent's "advantage," but
he added that "it is not to our advantage to bring that work
into the bargaining unit." The Union argued again that
nothing prevented Respondent from assigning draftsmen
additional tasks and paying them adequately for them even
if they continued to be represented by the Union.
At the June 28 clerical meeting, in answer to an inquiry
from Shields, Scott repeated his earlier statement that if
draftsmen were placed on the "exempt salary" roll, they
would get raises immediately and he covered by the merit
system thereafter. When Shields asked whether Respon-
dent intended to raise "the plateau of the current ment
system" when the draftsmen were removed from the
bargaining unit, Scott replied that they would receive
additional compensation because they would be perform-
ing more difficult work, but the increases would have
"nothing to do with taking them out of the bargaining
unit." Both sides then discussed the merit increase system,
with Scott commenting again that a merit increase program
under a "union set-up" is unworkable. It does not appear,
however, here or in any other meeting, that either side
discussed the nature of the new and more complicated
tasks that Respondent had in mind for the draftsmen.
At the July 3 clerical meeting, which lasted less than 15
minutes, after briefly summarizing the Union's position,
Scott repeated that the Company still believed that it could
accomplish what it had in mind only with the draftsmen
"under an exempt salary set-up." He advised the Union
that the offer was still open and would remain so. The
Union has not accepted Respondent's proposal, and
Respondent has done nothing to implement it.
B. Analysis and Conclusions
General Counsel contends that Respondent's proposal to
remove draftsmen from the bargaining unit and grant them
immediate wage increases was illegally motivated because
it was inherently destructive of employee Section 7 rights
and was not justified on the basis of legitimate business
considerations.7
The General Counsel and the Charging Party have been
unable to point to a case where it has been held that it is
illegal to propose to a bargaining representative that the
existing unit be modified by eliminating a group or a class
of employees from it and paying those employees higher
pay for additional work.8 Clearly the cases which are cited
are factually unlike the situation here, and they can only
comfort-but mislead-anyone who invokes their lan-
guage out of context. In Medo Photo Supply Corporation v.
N.L.R.B.,9 for example, the employer negotiated for a wage
increase for all employees directly with them rather than
with their chosen bargaining representative, and there was
no issue about a proposed alteration of the bargaining unit
r The Union's position (Counsel's brief) is essentially the same as
General Counsel's, but it argues more unmistakably that Respondent's
conduct "was designed to subvert the union's position as negotiating agent
" for the draftsmen and "to discontinue and destroy union
representation . " of them.
s General Counsel describes the issue as "novel"
9 321 US 678 Howe Scale Company, 134 NLRB 275, relied on by
or about the workability of the bargaining process
thereafter. The narrow issue was whether the employer had
violated its duty to bargain with the designated representa-
tive of the employees, and it was in that context that the
Court stated that "There could be no more obvious way of
interfering with these (Section 7) rights of employees than
by grants of wage increases upon the understanding that
they would leave the union in return."
Cases which involve an employer's grants or promises of
benefits during a union's organizational campaign are also
factually far removed from the circumstances in this
case,i° but even there the employer's motive is determina-
tive, and it is only in the absence of a legitimate
explanation for the action taken that the conduct is held
violative of the Act. Although I do not doubt that
Respondent's proposal, which it first revealed to Wilbra-
ham, area representative of the draftsmen, and repeated in
union-company meetings had a natural tendency to cause
the draftsmen to look forward favorably to its adoption
and to become dissatisfied with the Union when they
learned of its rejection, I view the result as an unfortunate
side effect of the proposal, and I have concluded, based on
other valid considerations, that in the absence of evidence
that the proposal was illegally motivated, Respondent had
a right to make it to union representatives within a
collective-bargaining contract.
The Board "carves out" bargaining units, but not out of
granite. Acting under Section 9(b) of the Act, the Board is
responsible for defining units in which collective bargain-
ing may appropriately be conducted, but it is well known
that the parties frequently agree, without Board interven-
tion, on units which may not precisely coincide with what
the Board would have found appropriate if disagreements
had arisen and the issue had been litigated. It does not
appear how the units in this case were established, but even
if they had been established by the Board, that decision
could subsequently be changed "by agreement of the
parties, if the process of alteration involves no disruption
of the bargaining process or obstruction of commerce and
if the Board does not disturb the agreement in a
subsequent representation proceeding.""
Since Respondent could in good-faith propose an
alteration of the unit, I find nothing irregular in it first
bringing the matter to Wilbraham's attention, since he
represented the draftsmen on an area basis, and there can
be even less question about Respondent raising the issue at
a regular meeting of the union-management executive
committee. From a review of the minutes of the Committee
meetings it appears that the Respondent's offer was fairly
and adequately debated. The Union did not agree to
accept it, but Respondent explained why it felt that it
needed to take the actions it proposed, and it candidly
admitted that it felt that it could not accomplish its goals if
the draftsmen remained in the unit under union represent-
ation. In my opinion, both sides should be encouraged to
General Counsel, also involved an attempt by an employer to rid himself of
a union and bargain with employees individually. A promise of benefits to
employees was only one of the unfair labor practices committed pursuant to
the illegal plan.
10 tV LR B v. Exchange Parts Company, 375 U S. 405 (1964)
11 Charles T. Douds, Reg Dir v International Longshoremen 's Association
17V. Y Shipping A rsn J, 241 F 2d 278, 282 (C A. 2, 1957)
E. I. DUPONT DE NEMOURS & CO.
make honest statements of their objectives during collec-
tive bargaining in order that this channel of communica-
tions be kept as open as possible and that other channels,
such as direct communications with employees over the
head of the union, with their potential for creating union
hostility and weakening the bargaining process, be avoid-
ed. This is a value which helps tip the scales in favor of a
finding that Respondent's offer was legally permissible, if it
were otherwise presented in good faith.
I do not believe that the record will support General
Counsel's contention that Respondent's offer of immediate
and future benefits to draftsmen if the Union agreed to
permit their removal from the bargaining unit was a
"bribe" made for the sole purpose of causing the draftsmen
to abandon the Union. First of all, apart from the offer
itself and management's asserted justification for it, there is
nothing else in the relationship between the parties to
support an mference that Respondent was motivated by
antiunion considerations. The parties appear to have had
amicable labor relations for over 30 years. Second,
although the extent and degree of the "more complicated"
duties which Respondent proposed to give the draftsmen is
not completely clear from the testimony,12 and although I
am not persuaded that most if not practically all of the
tasks that draftsmen would be doing under the proposed
system are not essentially those that they presently
perform, I cannot say that Respondent's argument that the
adoption of its proposal would give it greater freedom to
assign and promote individual draftsmen and result in a
closer team effort on the part of draftsmen and engineers,
thereby effecting a more efficient operation, is so far-
fetched or unreasonable as to indicate that it is a mask for
something else. Similarly, whatever views I may have as to
whether or not Respondent's professed goals could not be
attained as effectively with the draftsmen remaining in the
bargaining unit with greater responsibilities and higher pay
under union representation are irrelevant, for I find that
Respondent, in good faith, thinks they cannot.
Respondent cites a number of cases as legal support of
its position. In American Buslines, Inc.," the Board
12 It was certainly not made clear during the meetings between the
parties where the problem was discussed , but this may be as much the fault
of the Union as the Company, for the Union resisted the idea from the
beginning and did not investigate the proposal in depth
13 164 NLRB 1055.
14 171 NLRB 1392.
15 See also Cessna Aircraft Co, 172 NLRB 696, and Tesoro Petroleum
Corp, 192 NLRB 56, where in each case the employer removed
classifications from the bargaining unit by assigning certain additional
duties which made the jobs supervisory
795
dismissed a refusal-to-bargain charge where the employer
promoted porters to utility baggagemen, thereby placing
them in another unit represented by another union. In
Laclede Gas Co.,14 the employer notified the union that it
intended to abolish the classification "dispatcher," a unit
job, and make the employees supervisory by assigning
them supervisory functions. This, of course, would remove
them from the unit. Since the employer had the right to
make the change and since it advised the union that it was
willing to discuss the matter , the Board dismissed a refusal-
to-bargain charge. 15
I do not think the cited cases are controlling because
they involved either a shift from one unit to another or
promotions to supervisory positions which are not covered
by the Act, and not , as here, a situation where the
employees would still be entitled to representation by their
bargaining representative even if their responsibilities were
enlarged in accordance with Respondent's proposal.
Nevertheless, they do illustrate that bargaining units are
not immutable and are some indication that Respondent's
conduct here, which, unlike that in the cited cases, was
merely a proposal to alter the unit and not an implementa-
tion of a proposal after an impasse, would not be
considered improper by the Board. I conclude, for the
reasons stated, that Respondent did not violate Section
8(a)(1) of the Act by making the proposal to the Union.16
CONCLUSION OF LAW
Respondent , an employer engaged in commerce within
the meaning of the Act, did not violate Section 8(a)(1) of
the Act, as alleged in the complaint.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record , and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 17
It is hereby ordered that the complaint be dismissed.
16 What is not being decided , of course, is how far Respondent could go
in "insisting" on the exclusion of draftsmen from the established unit See
District 50, United Mine Workers ofAmerica (Central Soya Co), 142 NLRB
930,939
17 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.