E. I. duPont de Nemours & Co.

National Labor Relations Board - Board Decisions

Jul 15, 1946

69 N.L.R.B. 509 (N.L.R.B. 1946)

In the Matter of E. I . DUPONT DI: NEMOURS & COMPANY and UNITED
GAS, COKE & CHEMICAL WORKERS OF AMERICA , C. I. O.
Case No. 4-R-1901.Decided July 15, 1946
Mr. Peter B. Collins, of Wilmington, Del., for the Company.
Messrs. Clarence Talisman and David Elliot, of Newark, N. J., for
the C. 1. 0.
Mr. J. Randolph Appleby, Jr., of South River, N. J., for the Asso-
ciation.
Mr. Conrad A. Wickham , Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Gas, Coke & Chemical Workers
of America , C. I. 0., herein called the C. I. 0., alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of E. I. duPont de Nemours & Company, Parlin, New Jersey,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Herman
Lazarus, Trial Examiner. The hearing was held at Perth Amboy,
New Jersey, and Parlin, New Jersey, on April 8 and 10, 1946 , respec-
tively. The Company, the C. I. O., and Parlin Employees' Association,
Inc., hereinafter called the Association, appeared and participated.
All parties were afforded fall opportunity to be heard, to examine and
cross-examine witnesses , and to introduce evidence bearing on the
issues. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were af-
forded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
E. I. duPont de Nemrnu•s & Company, a Delaware corporation with
principal offices in Wilmington , Delaware, owns and operates more
69 N. L. R. B., No . 63. 509
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than 50 plants in 20 States of the Union. Involved in this proceeding
is the Finishes Division of the Fabrics and Finishes Department of the
Company, located at Parlin, New Jersey, where the Company is en-
gaged in the manufacture of lacquers, finishes, solvents, commercial
nitro-cotton, and bronze powder.
The Company annually uses more than $1,000,000 worth of raw ma-
terials at its plants in Parlin, New Jersey, including alcohols, raw lint,
copper, and pigments, approximately 50 percent of which is shipped to
Parlin from points outside the State of New Jersey. The Cbmpany
sells more than $1,000,000 in finished products annually, of which
approximately 60 percent is shipped from the Parlin plant to points
outside the State of New Jersey.
The Company admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Gas, Coke & Chemical Workers of America, is a labor or-
ganization, affiliated with the Congress of Industrial Organizations,
admitting to membership employees of the Company.
Parlin Employees' Association, Inc., is a labor organization, ad-
mitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the C. I. O. as
the exclusive bargaining representative of the Company's production
and maintenance employees until the C. I. 0. has been certified by the
Board in an appropriate unit.
Although the Company and the Association were under contract, in
view of the fact that its expiration date was May 23, 1946, a little over
a month from the date of the hearing, neither contends that its
contract is a bar to the present proceedings.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the C. I. O. represents a substantial number of
employees in the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
I The Field Examiner reported that the C. I. O. submitted application -for-membership
cards bearing the names of 343 company employees , and that the cards are dated from July
to November 1945. The Association relies upon its contract to evidence its interest.
There are approximately 1,060 employees in the unit requested by the C. I. 0., and
approximately 1,250 in that requested by the Association and the Company.
The approximate rate of turn-over during the 6-month period preceding January 1, 1946,
was 2 . 8 percent per month.
E. I. DUPONT DE NEMOURS & COMPANY
IV. THE APPROPRIATE UNIT
511
The Company's Parlin plant covers approximately 406 acres of
which the plant proper embraces nearly 300 acres and includes about
200 separate buildings. In addition, the Company operates a village
on its grounds for the benefit of its employees. This includes housing
accommodations for approximately 77 families; dormitories and din-
ing room, chiefly for its young unmarried technical employees being
trained for supervision; a commissary, which includes a store and
cafeteria; and a club.
The main plant is divided into the following subdivisions: Nitro-
cotton area, solvent area, mixture area, including an enamel and a clear
section, mechanical department, power department, and bronze area.
The Company also operates a water supply station, called the Du-
hernal area, which serves it and two other companies with water.
The C. I. O. contends that the appropriate bargaining unit should
include all hourly paid production and maintenance employees of the
Company at its Parlin, New Jersey, plant, but exclude technical and
professional employees, research laboratory employees, hospital em-
ployees, technical and nontechnical process inspectors, Duhernal area
employees, village employees, commissary and club employees, the
club attendant, messengers, janitors and janitresses in offices and
dormitories, change-house matrons, working leaders, dispatchers and
the dispatcher helper, club seamstresses, office and clerical employees,
supervisors, and such other employees as are hereinafter discussed to
whom it specifically objected at the hearing. The C. I. O. takes no
position with respect to the plant guards.
The Company and the Association contend that the unit should
include all employees covered by the collective bargaining agreement
between them, namely, all of the Company's employees, including
working leaders and nonexempt 2 salaried employees (known as the
Wilmington Clerical Salary employees), but excluding exempt sal-
aried employees, shift engineers, and all supervisory employees with
the rank of sub-foreman and above. The C. I. O. is in general accord
with the exclusions mentioned, but as indicated above, it would addi-
tionally exclude technical and clerical employees, among others, con-
fining the unit to those whom it regards as production and mainte-
nance employees.3
Employees specifically disputed can be suitably treated in the gen-
eral categories of alleged clerical, technical, supervisory, village and
related, and miscellaneous employees.
2 Not classified as "exempt" under the Fair Labor Standards Act.
8 The parties agreed at the hearing that the unit should include all the employees listed
on Company Exhibit 2 except those specifically objected to by the C. I. O. who are dis-
cussed, infra.
512 DECISIO NS OF NATIONAL LABOR RELATIONS BOARD
Alleged Clerical Employees
(a) Wilmington Clerical Salahy Employees:
With few exceptions , the Company 's clerical employees are all to be
found in this category .4 They are all paid on a salary basis and re-
ceive vacation and sick benefits similar to production and maintenance
workers except that they do not lose the pay benefits of the first, 2
days of sickness as do the hourly paid personnel . But for the per-
sonnel discussed below, the parties agree , and we find, that the em-
ployees in this group are office clericals , and as such, despite previous
bargaining history, we shall exclude them from the unit.5
The Company and the Association take the additional position that
certain of the employees in this classification are production clericals
and infer that these should therefore be included in the unit. The
C. I. 0. maintains they should be excluded.
With few exceptions , all of these employees work at desks perform-
ing duties of an essentially clerical nature . They seldom leave their
offices . Although many of them work with operating personnel in
carrying on their duties , their usual form of contract is via telephone or
a pneumatic tube arrangement . All of them are under the supervision
of supervisors who also oversee the Company 's office clericals. After
a thorough consideration of each of the job classifications in this
group , we find these employees to be more in the nature of office cleri-
cals than production clericals , and we shall, therefore , with one excep-
tion, exclude them from the units
The exception in this group is the receiving clerk for the mechanical
area. He spends 50 percent of his time in the actual handling of the
items he receives , such as pipes, machine parts, valves , etc., and the
balance of the time in clerical work . His desk is located in the store-
room and he is in daily contact with the maintenance employees. In
view of the manual work he performs , and his daily contact with
4 The job classifications of this group are to be found in Company Exhibit No. R. It
should be noted that included therein are six Iaboratorians who are located in the Purl iii
(Research) Laboratory. inasmuch as their duties are identical to other laborstorians, and
their salaried positions clue merely to such factors as longevity of service, they present
no clerical issue, and will be discussed with the other laborato rians.
The Company and Association have cited Pen as sp Iran is Panrer and Light Coapanp, 64
N. L. It. B. 874. as authority for including office clericals in the unit on the basis of past
bargaining history. However, we were there concerned with a public utility, characterized
by a peculiarly high degree of integration among the employees of its several departments.
The special circumstances of that case do not exist here. We therefore have applied our
general rule to the present situation. Matter of T. I. duPont de 1 enionra c( Company, Inc.,
62 N. L. R. B. 146: Matter of Sharp It. Dohme, Inc., h(i N. L. R. B. 1471.
6 These include the following employees :
Main Office Croup: Stock control employees : order bun earn (sales contact) clerks and
assistant clerks: traffic and shipping employees (traffic nnau, truck scheduler, yard master
and bill-of-lading and packing-list clerks ) ; and the miscellaneous shipping and invoicing
employee.
Solvent Office: Schedule Haan.
Mixture Office: Batch slip clerks, and planning and scheduling clerks.
E. I. DUPONT DE NEMOIRS & COMPANY 513
maintenance employees, we find him to be a production clerical and
shall include him in the unit.
(b) Other Alleged Clericals:
With the exception of the messengers, all the following employees
are on an hourly pay basis and receive the same sick and vacation
benefits as production and maintenance employees generally.
(1) Dispatchers and the Dispatcher Helper: These employees, of
whom there are nine, are located in the mixture area testing labora-
tory. The C. I. O. contends that their duties are clerical and that they
should be excluded, while the Association and the Company argue for
their inclusion.
These employees function somewhat in the nature of expediters.
They check "batch slips," received from the planning and supply
group, for items requiring servicing from the raw materials ware-
house, and notify the warehouse of any materials required. Generally
speaking, it is their function to see that from the time. the batch slip
is issued materials are promptly serviced to the equipment at which
they are used, and that batch samples at various stages of production
are delivered to the control laboratories for testing. They may also,
within limits, indicate the kind of tests to be made on different prod-
ucts. Samples are delivered to them, and they, in turn, deliver them
to the laboratory. After testing, they are responsible for making
minor changes in batches not meeting specifications. Upon completion
and approval of a batch, a dispatcher will send out filling instructions.
These employees occupy the same room as the control laboratorians
and have daily contact with them. They are under the same foreman
who supervises shaders and operators. Approximately 80 percent of
their time is spent in their offices at their desks, and the balance either
in the office where the batch slips are prepared or at the planning
department checking up on urgent batches. Contacts with operators
are generally made through the foremen.
The dispatcher helper performs the same type of work as the dis-
patchers, as well as delivering batch samples directly from the op-
erators in the plant.
It is clear that these employees are production clericals. They are
far more closely associated with the productive processes than with the
work performed by office clericals. We shall, therefore, include them
in the present unit in accordance with our established practice con-
cerning this type of employee.7
(2) Messengers: There are eight employees in this group, all of
whom are paid on a weekly basis. The C. I. O. contends that they are
Hotter of Joseph Bancroft & Sons Company . 60 N. L. It. B. 1 053: Matter of Sharp &
Dohrnc, Inc., 58 N. L. It. B. 1579. 1590.
701592- -47-vol. 69- :,4
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clerical and should be excluded while the Company and the Associa-
tion argue for their inclusion.
Six of these employees are located in the main office under the super-
visor of pay roll, stenographic, cashiers and miscellaneous, one in the
mixture area office under the mixture area clerical supervisor, and one
in the research laboratory under the research laboratory office man-
ager. The main office messengers sort, distribute, and collect mail, as
well as deliver sales orders and shipping papers, throughout the offices
and the plant. The mixture area messenger works largely within the
plant gate carrying batch slips to dispatchers, the print shop, ware-
house and shipping house. The research laboratory messenger handles
mail in the same manner as the main office messengers.
We find that the duties of these employees are essentially of an office
clerical nature, and shall exclude them from the unit. •
(3) Utility Typist: There is one employee in this category. The
C. 1. 0. would exclude him as clerical while the Company and the Asso-
ciation would include, him. He is located in the mixture area shipping
house. His duties include the typing of container shipping tags and
the running of errands within the shipping house, although he does
not handle materials. He is responsible to the foreman of the shipping
house, who also supervises checker leaders, checkers, stencillers, packers
and recanners. We are of the opinion that the nature of this em-
ployee's duties, as well as the fact that he is under the shipping house
foreman, give him a community of interest with the production and
maintenance personnel. We shall therefore include him in the unit.
(4) Printer: The Company employs one printer whom the C. I. 0.
would exclude as clerical and the Company and the Association in-
clude. He is located in a separate building in the mixture area. His
duties involve the printing of labels showing the name of the product,
its formula number, and the serial number of each batch. He is respon-
sible to the mixture area clerical supervisor, who also supervises batch
slip clerks, stenographers, typists and file clerks. In view of the fact
that this employee is under a clerical supervisor, and his duties are
more closely akin to clerical than production and maintenance work,
we shall exclude him from the unit.
(5) Relief Telephone Operator: There is one relief telephone
operator. The C. I. 0. desires her exclusion while the Company and
the Association desire her inclusion.
The Company operates its own switchboard, which is located in the
main office building, It is handled by telephone girls operating on a
2-shift arrangement. These operators, the parties have agreed, and
we find, are office clericals. In addition, the Company has tie-in lines
to the hospital, where the relief operator is located. This operator
handles such outside calls as are necessary on the third shift and may
E. I. DUPONT DE NEMOURS & COMPANY 515
also substitute for one of the main office telephone operators in the
latters' absence. We find the relief telephone operator to be an office
clerical and shall exclude her from the unit.
Alleged Technical Employees
All of the following employees s are on an hourly pay basis and
receive the same sick and vacation benefits as production and mainte-
nance employees in general.
(a) Company Laboratories: The Company operates both control
and research laboratories at its Parlin plant. Both types of labora-
tory employees have comparable training and background, which
does not include formal technical training, but rather, a general ex-
perience in the Company's production line. Aside from the profes-
sional employees, who all agree should be excluded, the parties agree
that the control laboratory employees should be included, but disagree
as to the research laboratory employees.
The purpose of the control laboratories is to conduct routine and
standardized tests on company products in production. We find, in
accordance with the agreement of the parties, that the laboratorians
in these laboratories are of the type that are normally included in a
production and maintenance unit .9 We shall therefore include them
in the present unit.
As to the research laboratory employees, the Company contends that
their duties and background are so similar to those in the control
laboratories that they too should be included in the unit. The C. I. 0.
argues that they are distinct from the production workers and should
be excluded as technical employees.
The research department consists of four main operating buildings,
composing the laboratory, and a research office building. The labora-
tory's functions include the development of new products, the im-
provement of current products, and trouble shooting. It also sets
up the standards which govern the tests performed by the control
laboratories. In the development of a new product, it conducts the
necessary experimental work to insure that the product will meet re-
quired standards. When this work is completed, a formula and stand-
ard sample are set up. Batches are then made in the plant until such
time as actual experience shows that the plant can obtain the results
s With the exception of the six lahoratorians in the Wilmington Clerical Salary group
referred to in footnote 4. supra.
^ ifatter of New Jersey Worsted Mills and Gera Mills, 63 N. L . R. B. 455 ; Matter of
Procter & Gamble Manufacturing Company, 62 N. L. R. B . 1262 ; Matter of Armstrong Tire
Af- Rubber Company, 61 N. L . R. B. 1503 ; Matter of National Lock Company, 61 N. L. R. B.
1366. Although control testers were excluded from a production and maintenance unit in
Matter o f E. T. du Pont de 11'emours & Company , Inc., Rayon Division, 62 N. L. R. B. 146,
the employees in that case had a far greater educational and experimental background than
those in the present case , and were being paid on a salary basis.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obtained in the laboratory. During this period, both the chemists
and laboratorians who have worked in the experimental stage may
work in the plant until it is demonstrated that the laboratory product
can be made oji a plant scale.
Job classifications in this department include shaders, color match-
ers, 36 laboratorians of various grades,10 and a janitor, ditto operator,
formula clerk and photostat operator. The last 3 classifications the
C. I. O. would also exclude as clerical.
We are of the opinion that there is a decided distinction between the
research and control laboratory employees, the former constituting a
functional group separate and apart from the Company's production
process. They are the type of technical employees which we have
normally excluded from production and maintenance units." We
shall, therefore, despite prior bargaining history, exclude them from
the unit in the present case,' with the exception of the janitor, whom
we shall include.
(b) Critical Control Analyst: The one employee in this classifica-
tion is objected to by the C. I. O. on the grounds that he is a technical
employee. The Company and the Association argue for his inclusion.
Located in the nitro-cotton control laboratory, it is his function to
observe the manufacture of nitro-cotton for the purpose of noting any
off--standard deviations in production. His observations are made
purely from the manufacturing records, which include reports from
both the laboratory and the factory operators. From the results of
his study he may recommend slight changes in a subsequent lot. He
does not actually test products nor handle materials. There are no
special educational requirements for this job, the work being such that
it can be performed by a good first-class operator after he has famil-
iarized himself with the required company standards. The employee
in question is under the supervision of the technical supervisor of the
nitro-cotton area, who also supervises the control laboratorians of the
area.
We find his duties to be closely related to production and nut of a
technical nature. We shall include him in the unit.
(c) Teclin-ieal iiod Non-tee!,iueal Process Iris ecto11.e: There are four
employees in this group, all of whom the C. I. O. contends are technical
and should be excluded, while the Company and the Association argue
for their inclusion. The duties of this group, which is scattered
"This number includes 30 laboratorians paid on an hourly basis and the 6 mentioucd in
:footnote 4, supra, who are on a salary basis and are included iu the Wilmington cleri,-A
Salary Employees.
11 Matter of L. I. (In Pont do N emonrR & Cwnpanrt, Inc., Rayon Dirision , 62 N. L. R. B. 141;
_3!atter of Joseph Bancroft S Sons Company, 60 N. L. It. B. 1053 ; Ifattcr of Chicago Raw-
hide Manufacturing Company. 59 N. L. R. 11 1234.
12 1b-id. The ditto operator, formula clerk and photostat operator WO es- lud•- as
clericals.
E. I. DZ PO\ T DE NEMOURS & COMPANY 517
throughout the mixture, nitro-cotton and solvent areas , involve the
preparation of special production batches, work on new developments
and trouble shooting. When trouble arises they may step in and assist
with the operations in order to determine the difficulties and correct
them. There are no special professional or educational requirements
for the job, although inspectors with extra education, such as an
I. C. S. or night school course, are paid a higher rate and termed
"technical" process inspectors. The Company often adds to its "non-
technical" process inspectors from its operators when it has an unusual
number of special batches to make or special processes it wants fol-
lowed. We find that the duties of these employees are closely related
to production, and are not technical within our customary meaning
of the term. WTC shall therefore include them in the unit.