E. I. duPont de Nemours & Co., Inc.

National Labor Relations Board - Board Decisions

Apr 17, 1947

73 N.L.R.B. 439 (N.L.R.B. 1947)

In the Matter of E. I . DUPONT DE NEMOIIRS & COMPANY, INC., NEOPRENE
PLANT, EMPLOYER and UNITED RUBBER, CORK , LINOLEUM & PLASTIC
WORKERS OF AMERICA, CIO, INTERNATIONAL UNION, PETITIONER
Case No. 9-R-2410.-Decided April 17,1947
Mr. E. F. Ridlon, of Louisville, Ky., and Mr. H. 0. Blumenthal, of
Wilmington, Del., for the Employer.
Mr. Robert E. Shuff, of Akron, Ohio, for the Petitioner.
Messrs. Harry J. Bund and S. G. Stallings, of Louisville, Ky., for
the Affiliated Chemical Workers.
Messrs. Harold L. Colvin and Charles W. Anderson, of Louisville,
Ky., for the Firemen & Oilers.
Mr. A. Sumner Lawrence, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
Upon a petition duly filed, hearing in this case was held at Louisville,
Kentucky, on December 11 and 12, 1946, before Allen Sinsheimer, Jr.,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed. The motions to
dismiss filed by the Employer and the Affiliated Chemical Workers
are denied for reasons hereinafter stated.' The request of the Peti-
tioner for oral argument is hereby denied inasmuch as we are of the
opinion that the record and the briefs filed since the hearing adequately
present the issues and positions of the parties.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
E. I. duPont de Nemours & Company, Inc., a Delaware corporation,
with its principal office at Wilmington, Delaware, operates approxi-
The Employer filed a motion to dismiss upon the ground that a bargaining agreement
between it and the Affiliated Chemical workers constitutes a bar to the proceeding. The
Affiliated Chemical workers objected at the hearing to the holding of an election upon
the ground that the Petitioner had, through its attorney instituted suit against the Em-
ployer for portal-to -portal pay and that such action would unduly affect the minds of its
employees . We consider the objection a5, in effect , a motion to dismiss the present
proceeding.
73 N. L. R. B., No. 87. 439
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mately 65 plants located in various sections of the United States, in-
cluding a plant at Louisville, Kentucky, the only plant involved in
this proceeding and, engaged in the manufacture of synthetic rubber.
In the operation of this plant, the Employer uses annually raw mate-
rials valued in excess of $10,000,000, of which more than 10 percent is
received from points outside the State of Kentucky. The Employer's
annual products from this plant exceed $28,000,000 in value, of which
more than 95 percent is shipped to points outside the State of Kentucky.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
Affiliated Chemical Workers of Kentucky is an unaffiliated labor
organization, claiming to represent employees of the Employer.
International Brotherhood of Firemen and Oilers, Local 320, is a
labor organization affiliated with the American Federation of Labor,
claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer has refused to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer upon the
ground that it has a bargaining agreement with the Affiliated Chemi-
cal Workers covering the employees herein concerned.
The Employer contends that a contract dated September 16, 1944,
as thereafter supplemented, between it and the Affiliated Chemical
Workers, constitutes a bar to a present determination of representa-
tives. The Petitioner contends, in substance, that the contract was
reopened for unlimited renegotiation prior to its latest automatic re-
newal date, and that since negotiations fora new or modified contract
had not yet closed at the time the petition was filed in this proceeding,
the contract cannot be deemed to operate as a bar.
The contract contains as Section XIII thereof, the following ter-
mination provisions:
(a) This Agreement, when duly signed by the parties thereto
shall become effective as of the 24th day of August 1944, and shall
continue in full force and effect for 1 year thereafter. Any pro-
visions of this Agreement which represent changes from present
Company policies and practices requiring approval of the Na-
tional War Labor Board shall become effective only when and as
approved by such Board.
E. I. DUPONT DE NEMOURS & COMPANY, INC. 441
(b) In the event that either party to the Agreement desires
to terminate the same at the expiration thereof, there shall be
given written notice to the other party at least thirty (30) days
prior to such termination; otherwise this Agreement shall be
renewed for 1 year from the date of its expiration and annually
thereafter unless notice of termination is given in the manner
herein and above set forth. Failure to give written notice shall
signify.the parties' intention to continue the provisions of this
Agreement in effect for another year.
(c) If either party desires to modify or change this Agree-
ment it shall, at least thirty (30) days prior to the date when it
proposes that such change or modification be made, give notice
in writing of the proposed change or modification. The other
party, within ten days after receipt of said notice, shall either
accept or reject the proposal or request a conference to negotiate
the proposal.
The contract was automatically renewed on July 24, 1945, effective
as of August 24, 1945, the first anniversary date of the contract, and
according to the Employer and the Affiliated Chemical Workers, was
again automatically renewed July 24, 1946, as of August 24, 1946.
However, while no express notice of termination was given by either
party, the Affiliated Chemical Workers, on July 18, 1946, and within
the time limit for an effective notice of termination, addressed to the
Employer a letter in which it stated that it desired to modify the
contract in accordance with paragraph "C" of Section XIII herein-
above set forth. On July 22, 1946, the Employer replied that it was
accepting the Affiliated Chemical Workers' notice of July 18 as notice
of a desire to modify the contract. - Thereafter, at a meeting on August
5 with the Employer, the Affiliated Chemical Workers submitted a
request for changes in the contract with respect to 17 different sub-
jects,2 to which at a later meeting it added a further request for a
general wage increase. On August 29 and 30, 1946, the parties com-
menced actual negotiations but no agreement had been reached with
respect to any of the proposed changes at the time the Petitioner
filed its petition on September 24, 1946.
The Employer contends that, inasmuch as the petition in the present
proceeding was filed after the effective renewal date of the contract
between the Employer and the Affiliated Chemical Workers, the peti-
tion is barred upon the ground that the contract had, at that time,
2 The subjects covered by the request of the Affiliated Chemical workers include shift
differentials , double time for Sunday , time-and -a-half for Saturday , specific rules govern-
ing leave of absence , a training program , preferential seniority for union directors , detail
of foremen , maintenance of membership , seniority , vacations , lunch period, size of crews,
change in arbitration clause , change in grievance procedure , and change in classification of
painters.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been automatically renewed in the absence of any notice filed by either
party in accordance with the provision in the contract with respect
to the termination thereof. The Employer further contends that while
a notice of intention to modify the contract was admittedly filed within
the time permitted by the contract for a notice of termination, such
notice was expressly limited by reference to the provision regarding
changes in the contract as distinguished from the provision for giving
notice of termination. It is to be noted, however, that the so-called
notice of intention to modify the contract was followed_ by specific
requests and negotiations of such breadth and scope as to indicate
an intention by the parties to effect a new agreement rather than merely
a modification of the old agreement. Moreover, in deciding the issue
as to the true character of the notice in question, we are of the opinion
that the date upon which the notice was given is highly significant.
July 18, 1946, was the eminently suitable time for exercise of the
power possessed by each of the contracting parties, to prevent the
automatic renewal of the contract for another year. Indeed, only 6
days remained in which that power could be exercised during the cur-
rent contract term. In contrast, the power merely to propose changes
or modifications could have been exercised at any time during the
contract year without regard to the termination date of the contract.
In view of the foregoing, we are of the opinion that the Affiliated
Chemical Workers' notice of July 18, 1946, must be construed as a
notice to terminate the contract with the Employer in anticipation of
a new agreement. To construe it otherwise would, in our opinion, per-
mit the Employer and the Affiliated Chemical Workers to renegotiate
the contractual basis of their relations without at any time reopening
the existing agreement, and thus prevent indefinitely the employees
concerned from exercising the privilege of changing their bargaining
representative. We find, therefore, that the 1944 contract between the
Employer and the Affiliated Chemical Workers constitutes no bar to
a present determination of representati.es.3
The further contention by the Affiliated Chemical Workers that the
present proceeding should be dismissed or held in abeyance pending
the determination of certain litigation between the Petitioner and the
Employer is without merit, since the right to proceed under the Act is
in no way related to the exercise by the Petitioner of whatever rights
it may have against the Employer through ordinary civil proceedings.
8 See Matter of The Ohio River Company , Illinois River Division , 66 N. L. R. B. 128;
Matter of Duquesne Light Company , 71 N. L R . B. 337. See also Matter of Atlas Felt
Products Co., 68 N. L. R. B . 1; cf Matter of Northwestern Publishing Company, 71 N. L.
R B 167 ; Matter of Greenville Finishing Company, Inc ., 71 N. L. R. B. 436 ; Matter of
Mississippi Lime Company of Missouri, 71 N. L. R. B. 472; Matter of International Shoe
Company, Box Department , 71 N. L. R. B . 1318, in which the Board found that a con-
tractual bar existed where the Petitioner did not file its petition until after the automatic
renewal date and subsequent to the execution of a new agreement between the Employer
and the incumbent union.
E. I. DUPONT DE NEMOURS & COMPANY, INC. 443
We find that a question affecting commerce has arisen concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
The Petitioner, in agreement with the Employer and the Affiliated
Chemical Workers, seeks a unit substantially identical with that cov-
ered by the contract of the Affiliated Chemical Workers, consisting of
all employees at the Employer's Louisville Neoprene operations divi-
sion, including chief operators, stationary engineers, shift leaders,
fire department employees, stock clerks, and counter attendants, but
excluding all other clerical employees, office employees, plant guards,
chemical supervisors, technical engineers, assistant technical engi-
neers, draftsmen, cafeteria employees, chemists, nurses and hospital
technicians, general foremen, shift foremen, fire chief, and all other
supervisory employees within the usual definition of the Board. The
only dispute as to the unit concerns the separate representation of a
group of powerhouse and refrigeration plant employees, who the Fire-
men and Oilers contend should be severed from the existing plant-wide
unit upon the basis that they constitute a cohesive craft group. The
Petitioner opposes the contention of the Firemen and Oilers as incon-
sistent with the Employer's history of collective bargaining.
The group claimed by the Firemen and Oilers consists of approxi-
mately 85 employees from among approximately 1,300 employees in
the plant-wide unit. The group includes employees in the classifica-
tions of pump operators, boiler firemen, refrigeration men, coal han-
dling operators, bull dozer operator assigned to the powerhouse, help-
ers assigned to the power department, helpers assigned to the ref riger-
ation department, filter plant operators, water laboratory employee,
oiler assigned to the powerhouse, and maintenance men assigned to the
power and refrigeration departments. All members of this group
have been represented by the Affiliated Chemical Workers since 1943,
when the latter was designated as bargaining representative as the,
result of a Board election conducted upon a plant-wide basis in ac-
cordance with a consent election agreement between the Affiliated
Chemical Workers and duPont Neoprene Allied Trades Council,
AFL, which represented, among other craft organizations, the Fire-
men and Oilers. It does not appear, however, that the question of
separate representation for the group claimed by the Firemen and
Oilers was raised in connection with the consent election agreement.
Moreover, this group has at no time been afforded an opportunity in a
separate election to determine whether or not it desires representation
apart from the plant-wide unit represented by the Affiliated Chemical
Workers. Since the record also discloses that the employees claimed
444 * DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Firemen and Oilers constitute a group having craft character-
istics and of a type similar to units established elsewhere in the in-
dustry,4 we do not believe that under the circumstances here present,
bargaining on a more inclusive basis is sufficient in itself to deny these
employees the opportunity of deciding at the present time whether
they desire to continue to be represented as part of the plant-wide unit,
or whether they desire to bargain as a separate unit. In this situation,
we shall permit the scope of the bargaining unit or units to be deter-
mined in part by the results of separate elections among the groups
represented by the several unions herein concerned.
There remains for consideration the composition of the voting group
claimed by the Firemen and Oilers in the present instance. The
Firemen and Oilers would include among the powerhouse and refrig-
eration employees, 15 maintenance employees who normally perform
their work in the powerhouse and refrigeration: departments. How-
ever, the evidence discloses that such maintenance employees are not
specifically skilled in powerhouse or refrigeration work, but are gen-
eral maintenance employees who on occasion are required to work
elsewhere in the plant. Moreover, although it appears that all the
other members of the group claimed by the Firemen and Oilers have
the same ultimate supervision, i. e., the power engineer, the mainte-
nance employees in this group are supervised by foremen who do not
work under the over-all supervision of the power engineer. While we
have, in several instances, included maintenance employees in depart-
ment units of power plant and similar employees where such mainte-
nance employees were assigned permanently to the exclusive supervi-
sion of power section supervisors,6 we are of the opinion, in view of the
duties of the maintenance employees and particularly the difference
in their supervision as compared with that of the other employees in
the power and refrigeration group, that the maintenance employees
have an insufficient community of interest to warrant their inclusion
within the voting,group for whom an election is hereinafter directed.
We shall direct that the question concerning representation which
has arisen be resolved by separate elections by secret ballot among
the employees within the voting groups described below :
1. All powerhouse and refrigeration plant employees of the Em-
ployer at its Louisville Neoprene operations division, including pump
operators, boiler firemen, bulldozer operator assigned to the power-
house, refrigeration men, coal handling operators, helpers assigned
4 See Matter of T I. du Pont de Nemours & Company, Inc., Spruance Works, Rayon
Division, 66 N L R B 631, Matter of The American Fork and Hoe Company, 72 N L R B.
1025
5 See Matter of Food Machinery Co) poration, 72 N L R B 483 , Matter of The American
Fork cC Hoe Company, 72 N L It B 1025, and cases cited therein
6 See Matter of It I du Pont de Nemours & Company, Spruance Works, Rayon Division,
,66 N L R B 631, and cases cited therein.
E. I. DUPONT DE NEMOURS _ & COMPANY,, INC. 445
to- the powerhouse department, helpers assigned to the refrigeration
department, filter plant operators, the water laboratory employee and
oiler assigned to the powerhouse, but excluding maintenance men
assigned to the power and refrigeration departments, and all super-
visory employees with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of employees, or effec-
tively recommend such action ;
2. All remaining employees of the Employer at its Louisville
Neoprene operations division, including chief operators, stationary
engineers, shift leaders, fire department employees, stock clerks, and
counter attendants, but excluding all other clerical employees, office
employees, plant guards, chemical supervisors, technical engineers,
assistant technical engineers, draftsmen, cafeteria employees, chem-
ists, nurses and hospital technicians, general foreman, shift foremen,
fire chief, and all other supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action.
As indicated above, there will be no final determination of the
appropriate unit or units pending the results of the elections.
DIRECTION OF ELECTIONS'
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with E. I. duPont de Nemours &
Company, Inc., Neoprene Plant, Louisville, Kentucky, elections by
secret ballot shall be conducted as early as possible, but not later than
thirty (30) days from the date of this Direction, under the direction
and supervision of the Regional Director for the Ninth Region, acting
in this matter as agent for the National Labor Relations Board and
subject to Sections 203.55 and 203.56, of National Labor Relations
Board Rules and Regulations-Series 4, among the employees in the
voting group indicated below and who were employed during the
pay-roll period immediately preceding the date of this Direction,
including employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, and
including employees in the armed forces of the United States who
present themselves in person at the polls, but excluding those em-
ployees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the elections :
(1) The employees in the first voting group described in Section
IV, above, to determine whether they desire to be represented by
International Brotherhood of Firemen and Oilers, Local 320, AFL,
or by United Rubber, Cork, Linoleum & Plastic Workers of America,
V
7Any participant in the elections herein may , upon its prompt request to, and approval
thereof by , the Regional Du ector, have its name removed from the ballot.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. I. 0., or by Affiliated Chemical Workers of Kentucky, for the
purposes of collective bargaining, or by none of these organizations.
(2) The employees in the second voting group described in Section
IV, above, to determine whether they desire to be represented by
United Rubber, Cork, Linoleum & Plastic Workers of America,
C. I. 0., or by Affiliated Chemical Workers of Kentucky, for the
purposes of collective bargaining, or by neither.
MR. JOHN M. HOUSTON took no part in the consideration of the
above Decision and Direction of Elections.