E.I. du Pont de Nemours and Co.

National Labor Relations Board - Board Decisions

Mar 11, 1946

66 N.L.R.B. 545 (N.L.R.B. 1946)

In the Matter of E. I. DU PONT DE NEMOURS AND COMPANY and LEAD
BURNERS LOCAL 677, UNITED ASSOCIATION OF JOURNEYMEN PLUMBERS
AND STEAMFITTERS OF UNITED STATES AND CANADA, AFFILIATED WITH
THE A. F. OF L.
Case No . 3-R-1079.-Decided March 11, 1946
Mr. H. O. Blumenthal, of Wilmington, Del., and Mr. W. O. Simon,
of Buffalo, N. Y., for the Company.
Messrs. Daniel B. Shortal, James Stillwell, and Clarence Resen-
berger, of Buffalo, N. Y.; and Mr. John Began, of White Plains,
N. Y., for the A. F. of L.
Mr. John F. Gunderman, of Buffalo, N. Y., and Mr. Ward Jones,
of Snyder, N. Y., for the Independent.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Lead Burners Local 677, United Asso-
ciation of Journeymen Plumbers and Steamfitters of United States
and Canada, affiliated with the A. F. of L., herein called the
A. F. of L., alleging that a question affecting commerce had arisen
concerning the representation of employees of E. I du Pont de
Nemours and Company, Buffalo, New York, herein called the Com-
pany, the National Labor Relations Board provided for an appropri-
ate hearing upon due notice before Francis X. Helgeson, Trial
Examiner. The hearing was held at Buffalo, New York, on November
7, 8, and 19, 1945. The Company, the A. F. of L., and Buffalo du Pont
Workers Independent Union, herein called the Independent, appeared
and participated.' All parties were afforded full 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.
I Textile Workers Union of America, a labor organization affiliated with the Congress
of Industrial Organizations , herein called the C. I. 0, also served with notice, did
not appear at the hearing
66 N. L . R. B., No. 72.
545
686572--46-36
S46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All parties were afforded 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 TIIE COMPANY
E. I du Pont de Nemours and Company, a Delaware corporation,
is engaged in the manufacture of chemical products. Its plant at
Buffalo, New York, is the only plant involved in this proceeding.
During 1944, the Company used at its Buffalo plant raw materials
valued in excess of $1,000,000, of which 75 percent represents ship-
ments to the plant from points outside the State of New York. Dur-
ing the same period, the Company manufactured at its Buffalo plant
products exceeding $1,000,000 in value, of which approximately 75
percent represents shipments to points outside the State of New York.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Lead Burners Local 677, United Association of Journeymen
Plumbers and Steamfitters of United States and Canada, is a labor
organization affiliated with the American Federation of Labor, ad-
mitting to membership employees of the Company.
Buffalo du Pont Workers Independent Union is a labor organiza-
tion affiliated with the Confederated Unions of America, admitting
to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Prior to filing the petition for investigation and certification of
representatives herein on August 27, 1945, the A. F. of L. submitted
no request to the Company for recognition as bargaining representa-
tive of employees of the Rayon Division. At the hearing, however,
the Company took the position that it would not recognize the
A. F. of L., absent certification by the Board.
On October 11, 1944, the Company and the Independent entered
into a contract covering production and maintenance employees of the
Rayon Division at the Buffalo plant. The contract provided that it
be in effect for 1 year, and thereafter for an additional period of I
year, unless 30 days' notice were given in writing prior to the annual
terminal date. Prior to the automatic renewal date, the A. F. of L.
filed the petition in this proceeding. Neither the Company nor the
E. I. DU PONT DE NEMOURS AND COMPANY S47
Independent contends that the contract is a bar to this proceeding.
Since the filing of the petition constitutes timely notice of the claim
of the A. F. of L. to represent employees covered by the contract,
we find that the contract constitutes no bar to a determination of
representatives at this time.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the A. F. of L. represents a substantial num-
ber of employees in the craft unit alleged to be appropriate.2
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.
IV. THE APPROPRIATE UNIT ; THE DETERMINATION
OF REPRESENTATIVES
The A. F. of L. contends that lead burners and lead burners' help-
ers in the Rayon Division of the Company's plant at Buffalo, New
York, constitute a separate appropriate bargaining unit. The Com-
pany and the Independent contend that the proposed craft unit is
not appropriate, on the grounds (1) that all skilled and unskilled
production and maintenance employees in the Rayon Division work
together to the common end that production processes may be carried
on without interruption and are therefore bound by a common interest
that require their inclusion in a single unit for bargaining purposes;
and (2) that the history of bargaining at the Buffalo plant over a
period of years and bargaining on a similar basis at other plants of
the Company demonstrate that the'broad unit is the only appropriate
unit for the Company's employees in the Rayon Division and pre-
clude separate bargaining on a craft basis at this time.
At its Buffalo, New York, plant, the Company conducts within a
fenced enclosure three separate manufacturing operations, called the
Rayon Division, the Cellophane Division, and the Cel-O-Seal Divi-
sion, respectively, each of which constitutes an integrated enterprise,
independent of the other two and directly subject to the central au-
thority of the Company at Wilmington, Delaware. As a matter of
operating convenience, however, all the Company's properties in the
Buffalo area are serviced by maintenance employees listed on the
Rayon Division pay roll, with headquarters in the Division, working
under their respective craft foremen. This wider extension of their
working activities has not substantially altered their status as em-
2 The Field Examiner reported that in support of its claim to represent lead burners
at the Company's plant the A. F. of L. submitted 12 applications for membership and
dues books.
The Independent relies on its contract covering employees at the plant to show its
interest among them.
There are approximately 19 employees in the proposed craft unit.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees of the Rayon Division or their participation in benefits ac-
cruing to employees in this division of the Buffalo plant. Employees
of the Rayon Division, including these maintenance employees, among
whom are the lead burners covered by the petition, are immediately
concerned in this proceeding.
Under the superintendent of the Company's Rayon Division are
approximately 1,000 production and maintenance employees. Under
the works manager is a maintenance supervisor in general charge
of the maintenance of the Buffalo plant properties, to whom reports
the crafts' supervisor responsible for the work to be performed by
pipe fitters, lead burners, carpenters, millwrights, machinists, welders,
and other artisans and their helpers. Under the crafts' supervisor
are the various subordinate craft foremen, among whom is the lead
burners' foreman in charge of lead burners, who were 12 in number at
the time of the hearing. One lead burner is specifically assigned to
work in a department where his continued service is needed. Other
lead burners separately receive from their foremen daily work as-
signments to the machine shop or to any other section or department
of the plant where lead work is required and where they may be
subject to dual supervision. While the nature of their employment
brings them into more or less close contact with other craftsmen
working under other craft foremen and with machine operators and
other production employees working under department supervisors
within the confines of the several divisions of the plant, the peculiar
skills of lead burners distinguish them as craftsmen apart from other
trained workers. No other employees of the Company perform lead
work. Thus, despite the fact that lead burners share general plant
conditions with other production and maintenance workers, due to
their common employment with the Company, we find that lead
burners of the Rayon Division working in the Buffalo area perform
work common to their craft, that they constitute a clearly identifiable
and homogeneous group of employees, and that, absent other con-
siderations, they may properly constitute a separate bargaining
group 3
With respect to the bargaining history of the Rayon Division of
the Buffalo plant, which the Company and the Independent urge as
a bar to the proposed bargaining unit based along craft lines, the
record reveals the following :
In 1937 employees of the Rayon Division organized the Inde-
pendent, and a majority of these employees, among whom were lead
burners, became members of the Independent. Between 1937 and
1944, the Company and the Independent held informal bargaining
conferences resulting in oral agreements and written memoranda,
3 Matter of National Lead Company, Titanium Division, 63 N. L . R. B. 903.
E. I. DU PONT DE NEMOURS AND COMPANY 549
raising wages and defining working policies affecting the conditions
of employment in the Rayon Division.
In the fall of 1943, some lead burners in the Rayon Division,
while retaining their membership in the Independent, signed appli-
cations for craft membership in the American Federation of Labor.
On February 25, 1944, Textile Workers Union of America, a labor
organization affiliated with the Congress of Industrial Organizations,
herein called the C. I. 0., filed a petition for investigation and cer-
tification of representatives of production and maintenance employees
in the Rayon Division. In March 1944 lead burners in the Rayon
Division abandoned their memberships in the Independent, and began
to build up their craft group. On April 25, 1944, pursuant to an
agreement among the Company, the Independent, and the C. I. 0., the
Regional Director conducted a consent election among production
and maintenance employees in the Rayon Division to determine
whether they desired to be represented by the Independent, or by the
C. I. 0., or by neither, for the purposes of collective bargaining'
On May 10, 1944, while an investigation concerning the conduct of
the election was pending, all lead burners in the Rayon Division, by
direct petition to their employer, sought a wage increase for them-
selves as craftsmen, meeting with representatives of management for
this purpose. Their request was denied on the basis of governmental
regulations of wages. On June 10, 1944, the Regional Director, re-
solving favorably certain issues respecting the validity of the election,
formally announced that the Independent had won the election. On
July 15, 1944, United Association of Journeymen Plumbers and
Steamfitters of United States and Canada granted the Company's
lead burners a charter, and they constituted themselves a local craft
union, the petitioner herein. On October 11, 1944, the Independent
and the Company entered into a contract, wherein the Company
recognized the Independent as the exclusive bargaining representative
of all hourly paid employees in the Rayon Division, among whom
are the lead burners. Since entering into the contract with the Inde-
pendent, the Company has dealt exclusively with representatives of
the Independent respecting conditions of employment in the Rayon
Division. Numerous conferences between the parties and oral agree-
ments subsequently amplified the original contract of October 1944,
and the contract, as amended and interpreted, resulted in the im-
provement of employment conditions in the Rayon Division, which
benefited all employees, including the lead burners. The contract
did not require membership in the Independent as a condition of
employment. The Company's lead burners maintained their craft
4 Although representatives of the Independent knew that lead burners had withdrawn
from the Independent , the affiliation of lead burners with the American Federation of
Labor was not known to the Company or to other employees of the Company.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union and, so far as the record discloses, as a group and as individuals
took no part in bringing about the results achieved by the Independ-
ent. Since the Company refused to negotiate any grievances in the
absence of a representative of the Independent, and the Independent
offered its services in the settlement of grievances to non-members, a
representative of the Independent functioned in occasional grievance
negotiations for lead burners and their helpers.]
Since the hearing was held in the instant proceeding, the Board
has found that lead burners in the Company's Grasselli, New Jersey,
plant constitute an appropriate bargaining unit and has certified a
labor organization affiliated with the petitioner herein as their exclu-
sive bargaining representative., So far as the record discloses, em-
ployees of other plants of the Company are included in plant units for
bargaining purposes. Employees at the two other manufacturing
divisions in the Buffalo area bargain informally with their employer
on division bases. We believe that the type of bargaining among
employees at other plants of an employer suggests the kind of unit
which experience has shown convenient and successful for bargaining
purposes, but that the type of bargaining at other plants of their
employer is not conclusive of the scope of the unit for employees of
the Rayon Division at the Buffalo plant.
We find that lead burners of the Company's Rayon Division at
Buffalo, New York, may properly constitute either a separate bar-
gaining unit or part of the larger production and maintenance group
at the Buffalo plant presently represented by the Independent. We
will hold an election among the lead burners to determine whether
they desire to be represented by the A. F. of L., or by the Inde-
pendent, or by neither, and we shall make no determination of the
unit issue until the results of the election shall have been disclosed.
Certain unskilled laborers, rated as Class D helpers by the Com-
pany, are regularly assigned to serve as helpers to lead burners and,
by such custom acquiring some facility in the work, are commonly
called lead burners' helpers.? The parties agree that, if lead burners
at the Rayon Division of the Buffalo plant constitute an appropriate
bargaining unit apart from other employees of the Rayon Division,
lead burners' helpers should be included in the same craft group.
I There are some uncertainties with respect to the scope of the grievance machinery.
The contract purports to extend the grievance machinery only to union members,
although membership in the Independent is not a condition of employment . In view
of the exclusive recognition clause, the Company and the Independent have placed a
more liberal interpretation upon the coverage of the contract than its several terms
alone strictly require
5Matter of E. I. du Pont (Grasselli Division) , 65 N L. R B 390 . The Supple-
mental Decision and Certification of Representatives , issued on February 14, 1946,
is unpublished
7 Although upon occasion and in an emergency any laborer may be assigned to
assist a lead burner, the term lead burners ' helper is commonly restricted to designate
only a laborer customarily assigned to the work as a matter of routine.
E. 1. DU PONT D +E NEMOURS AND COMPANY SS 1
We shall include lead burners' helpers in the voting group. The
parties further agree that the lead burners' foreman and those in
the supervisory hierarchy above him should be excluded from the
craft unit. Since these employees as indicated have authority to hire
and discharge, and are thus supervisory employees within our defini-
tion of the term, we shall exclude them from the voting group of lead
burners.8
Those eligible to vote in the election will be all lead burners and
lead burners' helpers in the Rayon Division of the Company's Buffalo
plant, excluding the lead burners' foreman and all other supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively rec-
ommend such action, who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with E. I. du Pont de
Nemours and Company, Buffalo, New York, an election 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 Third Region, act-
ing in this matter as agent for the National Labor Relations Board,
and subject to Article III, Sections 10 and 11, of said Rules and
Regulations, among-lead burners and lead burners' helpers in the
group described in Section IV, above, 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 in-
cluding employees in the armed forces of the United States who pre-
sent themselves in person at the polls, but excluding those employees
8 The A F of L would include the categories of lead burners ' apprentices and work
leaders within its proposed craft unit . At the time of the hearing , the Company
employed no one in either of these categories Apprentices are usually included in
craft units . The record does not fully describe "work leaders ." If, as a result of
this proceeding , a craft unit is found appropriate for lead burners and a labor organi-
zation certified as bargaining representative of employees therein , and disagreement
with respect to the unit placement of lead burners ' apprentices and work leaders who
may be hired arises, we will entertain a motion to clarify the scope of the unit for
lead burners employed in the Rayon Division.
SSZ DECISIONS OW NATIONAL LABOR RELATIONS BOARD
who have since quit or been discharged for cause and have not been
rehired or reinstated prior to the date of the election, to determine
whether they desire to be represented by Lead Burners Local 677,
United Association of Journeymen Plumbers and Steamfitters of
United States and Canada, affiliated with the A. F. of L., or by Buf-
falo du Pont Workers Independent Union, for the purposes of
collective bargaining , or by neither.