E.I.Dupont Nemours, Inc.

National Labor Relations Board - Board Decisions

Apr 20, 2004

341 N.L.R.B. 607 (N.L.R.B. 2004)

E. I. DU PONT INC. 607
E. I. Du Pont de Nemours, Inc. and Paper, Al-
lied/Industrial Chemical Energy Local 1-6992,
Petitioner. Case 3–UC–499
April 20, 2004
DECISION ON REVIEW AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On April 22, 2003, the Acting Regional Director for
Region 3 issued a Decision and Clarification of Bargain-
ing Unit in the above-entitled proceeding in which he
found that the newly created position of “PSM1 quality
assurance/quality control receiving examiner” (PSM ex-
aminer) is a proper accretion to the existing bargaining
unit of production and maintenance employees employed
by the Employer at its Tonawanda, New York facility.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regulations,
the Employer filed a timely request for review, maintain-
ing that the PSM examiner is not a proper accretion to
the existing bargaining unit.
By Order dated November 5, 2003, the Board granted
the Employer’s request for review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully considered the entire record, we con-
clude, contrary to the Acting Regional Director, that the
bargaining unit should be clarified to exclude the PSM
examiner.
Facts
The Employer manufactures two products: Corian, an
acrylic-based solid surface product which provides a
protective coat on countertops and sink bowls; and Ted-
lar, a poly-vinyl fluoride film used as a weather-resistant
protective coating on airplanes. The Union, the Paper
Allied/Industrial Chemical Energy Local 1-6992, repre-
sents a unit of employees at the Employer’s Tonawanda,
New York facility. The unit currently includes all pro-
duction and maintenance employees at the Employer’s
plant, including plant clericals and analysts.2 The Union
represents approximately 335 employees in the unit.

1 PSM is the Employer’s acronym for “process safety management.”
2 The Union’s predecessor, Buffalo Yerkes Union, and the Employer
were parties to successive collective-bargaining agreements since Buf-
falo Yerkes Union’s certification by the Board in 1953, as established
in Case 3–RC–1212. The Employer terminated its most recent collec-
tive-bargaining agreement with Buffalo Yerkes Union in 1993, and
there has been no successor collective-bargaining agreement in effect to
date. Nevertheless, certain terms and conditions of the terminated
collective-bargaining agreement remain in effect, including the bargain-
ing unit description contained in the terminated agreement.
In 2001, the Employer’s Mechanical Integrity Team,
which implements various programs to ensure that the
Employer is in compliance with Federal and State safety
regulations and that its equipment is safe to operate, de-
cided that all PSM parts and equipment that are manufac-
tured by outside vendors and used in the production
process ought to be inspected prior to installation and
use. All PSM parts and equipment must meet the re-
quired specifications so as to be able to be used safely in
the equipment and processes necessary to manufacture
Corian and Tedlar. To fulfill that inspection function, in
December 2001, the Employer created the new PSM
examiner position. The position requires a 2-year Asso-
ciate’s degree in engineering technology from an accred-
ited 2-year college or the equivalent documented experi-
ence/qualifications. The functional responsibilities of the
PSM examiner are: identifying and isolating all incoming
PSM equipment, components, and items; inspecting all
incoming PSM equipment, components, and items for
compliance with specifications, codes, or standards; ap-
plying the proper required inspection methods on each
item; maintaining databases and systems for audit track-
ing; assisting in vendor audits and vendor qualifications
process; providing a monthly examination status report;
and assisting the requisitioner to resolve discrepancies
prior to items being released for use.
In January 2002, the Employer hired Wally Oset-
kowski to fill the new position.3 Osetkowski has a 2-
year Associate’s degree in the field of engineering tech-
nology. Osetkowski’s supervisor is Gordon Gaesser,
who is the mechanical integrity reliability engineer at the
plant. Gasser is a nonunit employee and does not super-
vise any other employee. Both Osetkowski and Gaesser
are members of the Mechanical Integrity Team, which
consists of 11 active members, mostly engineers and
technicians, none of whom are unit employees, and 3 as-
needed members, who also are not unit employees. The
Team meets at least twice a month, and subgroups meet
weekly. All members of the team have at least a 2-year
Associate’s degree and many are required to have a 4-
year degree.
As the PSM examiner, Osetkowski is not involved in
the process of manufacturing Corian and Tedlar, nor
does he inspect or test those products. Rather, he visu-
ally inspects and physically tests parts and equipment to
make sure they meet the necessary physical and chemical
specifications required for safe performance. He spends
about 60–70 percent of his time visually inspecting criti-
cal parts and equipment, such as pipefittings, pipe
3 Although the petition was not filed until September 2002, the par-
ties stipulated at the hearing that the Union contested the nonunit status
of the position since its creation.
341 NLRB No. 82
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 608
flanges, standard valves, and pressure vessels, by com-
paring them with Piping and Instrument Diagrams
(PNID), or comparing their physical characteristics, such
as materials and pressure, with specification books lo-
cated in Gaesser’s office. Osetkowski spends about 30–
40 percent of his time physically testing incoming parts
and equipment by using durometers, calipers, microme-
ters, a Rockwell hardness instrument, a depth gauge, a
welding gauge, and continuity meters. Osetkowski testi-
fied that in performing his tasks, he most frequently con-
sults with nonunit reliability engineers because they are
the most knowledgeable about the manufacturing proc-
esses in which the parts and equipment will be used. He
also designed and developed an inspection form that pro-
vides information on each part inspected.
After completing inspection or testing, Osetkowski de-
termines if the items conform to specifications and will
stamp them accordingly. If an item conforms, Oset-
kowski contacts a clerk in the Employer’s store, who is a
unit employee, to pick up the item. If an item is noncon-
forming, Osetkowski will isolate the part and send an e-
mail to the members of the Mechanical Integrity Team
alerting them to the nonconformance. In trying to re-
solve nonconformances, he conducts a further investiga-
tion. He is often assisted by the reliability engineers who
advise him whether the part can be corrected, modified,
or nonetheless be used. The PSM examiner also has the
authority to reject parts outright and have them sent back
to the vendor if the part is not what the Employer or-
dered. Osetkowksi generates a report about once a
month detailing the number of items he has inspected or
tested and the number of nonconforming parts. He
shares this report with members of the Mechanical Integ-
rity Team. He also prepares a report on vendor perform-
ance that he gives to the plant manager and to Gaesser.
These activities take about 5–10 percent of his time.
Osetkowski works in two areas of the plant: the receiv-
ing area and the procurement area. Most of his time is
spent in the receiving area, where receiving clerks deliver
the parts and equipment to him that he inspects or tests.
He, as well as the receiving clerks, may also look up and
verify a purchase order in the 3-MCS computer system.
He works about 500 feet from the production area, where
both nonunit and unit employees work, and close to the
maintenance area, where primarily unit employees work.
In the procurement area, Osetkowski prepares the reports
relating to the number of items inspected or tested and
the number of nonconforming items. There, he works in
a cubicle next to mechanical technicians, who are not in
the unit, and purchasing associates, who are.
Analysis
It is well established that a unit clarification petition is
appropriate for resolving ambiguities concerning the unit
placement of individuals who come within a newly cre-
ated classification. Union Electric Co., 217 NLRB 666,
667 (1975); Bethlehem Steel Corp., 329 NLRB 241
(1999). Here the Union seeks to accrete the PSM exam-
iner into the already-represented unit. “[U]under current
Board law, accretion is found only when the employees
sought to be added to an existing bargaining unit have
little or no separate identity and share an overwhelming
community of interest with the preexisting unit to which
they are accreted.”4
In determining, under this standard, whether an em-
ployee in a newly created position shares a sufficient
community of interest with employees of an existing
bargaining unit several factors are considered. Among
them are: interchange and contact among employees,
degree of functional integration, geographic proximity,
similarity of working conditions, similarity of employee
skills and functions, supervision, and collective-bar-
gaining history. Archer Daniels Midland Co., 333
NLRB 673, 675 (2001). Cases in which every factor
favors accretion are rare, and “the normal situation pre-
sents a variety of elements, some militating toward and
some against accretion, so that a balancing of factors is
necessary.” Great A & P Tea Co., 144 NLRB 1011,
1021 (1963).5 “Employee interchange and common day-
to-day supervision are the two most important factors.”
Archer Daniels Midland Co., supra at 675. See also
Towne Ford Sales, 270 NLRB 311, 311–312 (1984),
enfd. 759 F.2d 1477 (9th Cir. 1985).
In the instant case, the Union maintains that the PSM
examiner should be accreted into the unit because that
position shares a strong community of interest with unit
employees. The Employer, on the other hand, contends
that the PSM examiner should not be accreted into the
unit because it is in essence a technical position not in-
volved with production or maintenance and therefore
does not share a community of interest with unit employ-
ees. Rather, the Employer argues, the position is more
closely aligned with the engineering functions of design-
ing and maintaining the plant processes. We agree with
the Employer that this position should not be accreted
into the unit.

4 Ready Mix USA, Inc., 340 NLRB No. 107, slip op. at 9 (2003), cit-
ing Safeway Stores, 256 NLRB 918 (1981).
5 In Great A & P Tea Co., it was concluded that the factors “militat-
ing toward a finding [of] . . . a separate appropriate unit, [were] over-
whelmingly counterbalanced by the factors supporting” a finding of
accretion.

E. I. DU PONT INC. 609
It is undisputed that Osetkowski is supervised on a
day-to-day basis by Gaesser, who does not supervise any
unit members. This fact clearly favors finding that accre-
tion is not appropriate.6 Further, while Osetkowski re-
ceives the items he inspects from unit receiving clerks,
gives all items that conform to specification to the unit
stores clerk, and works near unit employees, this interac-
tion is outweighed by his more substantive contacts with
nonunit employees, such as the reliability engineers and
members of the mechanical integrity team. Osetkowski
frequently consults with the reliability engineers during
the inspection process and when trying to resolve issues
surrounding nonconforming parts. These engineers are
familiar with the manufacturing process and are therefore
able to be of assistance to Osetkowski. He meets with
the members of the Mechanical Integrity Team on a
regular basis, and they review his e-mails and reports
regarding nonconforming parts. Further, the nature of
the PSM examiner’s responsibilities requires that Oset-
kowski work alone for most of his workday. In contrast
to most unit employees, he does not play a part in the
actual production process.
The skills and functions of the PSM examiner are most
similar to the nonunit mechanical technicians. Mechani-
cal technicians design, implement, and install new
equipment and improvements to existing equipment to
improve production processes. In so doing, they interact
with reliability engineers, use codes and specifications to
visually inspect piping, storage tanks, and pressure ves-
sels, and test such equipment with ultrasound meters,
testers, calipers, micrometers and durometers.7 In fact, a
mechanical technician assumes Osetkowski’s duties dur-
ing his vacations.8 In addition, like the mechanical tech-

6 See Archer Daniels Midland Co., supra; Towne Ford Sales, supra.
7 Within the unit, the most similar position to the PSM Examiner is
the process mechanic. These mechanics primarily install equipment
and parts, but they inspect and test PSM equipment after installation.
They will also occasionally use a micrometer, a feeler gauge, calipers, a
scale, and a drill gauge to check other equipment such as pipes that they
have installed or repaired.
8 Contrary to the Acting Regional Director, we find it immaterial
that Osetkowski only takes two vacations a year. His replacement by
nonunit mechanical technicians suggests that they share his skills and
functions more than unit employees do.
nician position, the PSM examiner position requires a 2-
year Associate’s degree or the equivalent. In contrast,
the unit mechanics and receiving clerks with whom the
PSM examiner interacts are not required to have that
degree or the equivalent.9
We also find that the PSM examiner has a greater
group identity with nonunit employees. As mentioned
above, Osetkowski is a member of the mechanical integ-
rity team, which consists solely of nonunit employees,
such as mechanical technicians and reliability engineers.
That Team determined the need for the PSM examiner,
and Osetkowski meets at least twice a month with the
team. Further, he is supervised by Gaesser, who is also a
member of the team. In addition, when parts or equip-
ment are nonconforming, he alerts the members of the
team. He also prepares and discusses reports for the
team.
On the other hand, the factors of working conditions
and geographic proximity favor accretion. Osetkowski
shares a common pay scale, benefits, and working condi-
tions with unit employees. He also spends most of his
time working in proximity to unit employees.
Based on the forgoing, we conclude that the PSM ex-
aminer position does not share an overwhelming com-
munity of interest with the existing bargaining unit. On
the contrary, the few factors favoring accretion—
geographic proximity, working conditions, and wages
and benefits—are strongly outweighed by those factors
which, as set forth above, militate against it.
Accordingly, we conclude that the PSM examiner
should be excluded from the bargaining unit represented
by the Union.
ORDER
It is hereby ordered that the classification of “PSM
quality assurance/quality control receiving examiner” is
excluded from the unit of the Employer’s employees
represented by the Paper, Allied/Industrial Chemical
Energy Local 1-6992.

9 Unit accounting planners and lab analysts, with whom Osetkowski
does not interact, are required to have a 2-year Associate’s degree or
the equivalent.