E. I. duPont de Nemours & Co.

In the Matter of E. I. DUPONT DE NEMOURS & COMPANY and DISTRICT 50, UNITED MINE WORKERS OF AMERICA Case No. 9-B-1672.-Decided April 10, 1945 Mr. Peter B. Collins, of Wilmington, Del., and Mr. C. H. Doherty, of Belle, W. Va., for the Company. Mr. E. E. Holly field, of Charleston, W. Va., for District 50. Mr. M. E. Reiarsky, of Charleston, W. Va., for the ACE. Messrs. L. F. Poffenbarger and P. L. Peek, of Charleston, W. Va., for the Masons. Mr. Wendell Ringholz, of Cleveland, Ohio, and Mr. Joseph Joy, of Charleston, W. Va., for the CIO. Miss Ruth E. Blie field, of counsel to the Board. , DECISION -AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon a petition duly filed by District 50, United Mine Workers of America, herein called District 50, alleging that a question affecting commerce had arisen concerning the representation of employees of E. I. duPont de Nemours & Company, Belle, West Virginia, herein called the Company, the National -Labor Relations Board provided for an appropriate hearing upon due notice before Louis S. Penfield, Trial Examiner. Said hearing was held at Charleston, West Virginia, on January 31, 1945. The Company, District 50, Association of Chemi- cal Employees of Belle Works of E. I. duPont de Nemours & Company, herein called the ACE, Bricklayers, Masons and Plasterers Inter- national Union of America, Local No. 9, A. F. L., herein called the Masons, and United Gas, Coke and Chemical Workers of America, C. 1. 0., herein called the CIO, 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 Company and the ACE moved to dismiss the petition on the ground that less than a year had elapsed since the prior certification of the ACE by the Board. Ruling on these motions was reserved by the Trial Examiner for the Board. For the reasons hereinafter dis- cussed these motions are denied. 61 N. L. R. B., No. 62. 473 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company and the ACE objected to the intervention of the Masons and the CIO, on the same grounds as set forth in their motions for dismissal. District 50 objected to the intervention of the Masons on the ground that it did not show sufficient interest to justify its participation in the proceedings. The Trial Examiner overruled these objections and his ruling is hereby upheld. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 THE COMPANY E. I. duPont do Nemours & Company is a Delaware corporation, au- thorized to do business in the State of West Virginia. It maintains a plant at Belle, West Virginia, which is the only plant involved herein, where it is engaged in the manufacture and distribution of numerous chemical products. During the 12 months preceding the hearing, the Company purchased raw materials valued in excess of $5,000,000, approximately 50 percent of which was shipped to the Company from points outside the State of West Virginia. During the same period 95 percent of the total products manufactured at the plant was shipped to points outside the State of West Virginia. To- tal production exceeded $10,000,000 in value. The Company admits, and we find, that its operations affect com- merce within the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED District 50, affiliated with the United Mine Workers of America; Association of Chemical Employees of Belle Works of E. I. duPont de Nemours & Company; Bricklayers, Masons and Plasterers Inter- national Union of America Local No. 9, affiliated with the American 'Federation of Labor; and United Gas, Coke and Chemical Workers of America, affilated with the Congress of Industrial Organizations; are labor organizations admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION In November 1944, District 50 requested recognition as the exclusive bargaining representative of the Company's employees. The Com- pany refused to grant District 50 such recognition, alleging that it was bound under the Board's certification of the ACE and its contract with the ACE. E., I. DUPONT DE NEMOURS & COMPANY 475 On September 4, 1941, the Company, District 50, the ACE, and a number of AFL unions entered into a Stipulation for Certification upon Consent Election, in a unit which was substantially the same as the unit petitioned for herein. As a result of the election the ACE was certified, on October 31, 1941, as the exclusive bargaining repre- sentative in the unit found appropriate. A collective bargaining agreement was signed by the Company and the ACE on February 27, 1942, and a supplemental agreement was entered into on April 30, 1943, extending the term of the contract for an indefinite period.' A petition for a unit similar to the already established bargaining unit was filed by the CIO with the Board in November 1943, and a consent election was thereupon held in accordance with the conditions set forth in a Stipulation for Certification upon Consent Election en- tered into between the Company, the ACE, and the CIO on January 26, 1944. Thereafter, on April 18, 1944, the ACE was again certified as the collective bargaining agent of the Company's employees in the stipulated' unit. No new contract has been signed between the Com- pany and the ACE since the latest certification, although in Novem- ber 1944, a proposed new contract was submitted by the ACE to the Company. The Company and the ACE contend that no question concerning representation has arisen because less than a year has elapsed since the ACE was last certified by the Board, and they moved to dismiss the petition on this ground. We have denied this motion as it is now more than 11 months since the ACE's certification, and that organiza- tion will have served as the certified representative of the Company's production and maintenance employees for a full year by the time any certification is issued in this proceeding.2 There being no current contract between the Company and the ACE which could operate to bar a new investigation of representatives for any definite period of time,3 it would serve no useful purpose to dismiss the petition at this j uncture.4 A statement of a Board agent, introduced into evidence at the hear- ing, indicates that District 50, the CIO, and the Masons each represents a substantial number of employees in the unit it alleges to be appropriate.5 , i The supplementary agreement was for a 10 -month term , to remain in effect indefinitely thereafter , terminable on 60-days notice. The agreement is still in effect since neither party has served notice to terminate. 2 See Matter of Martin Dyeing and Finishing Company, 59 N. L . R B 411 : Matter of J. M. Portela it Company, Inc, 61 N L R. B. 64; Matter of The Lennox Furnace Company, 60 N. L R B 1329; Matter of Defiance Screw Machine Products, 58 N L R. B 510. 3 Neither the Company nor the ACE contends that their present contract operates as a bar ; nor could they do so, since that contract was extended for an indefinite period nearly 2 years ago - 4 Cf. Matter of Kimberly-Clark Corporation, 61 N. L R B 90 The Field Examiner reported that District 50 submitted 1,200 authorization cards ; 1,120 of which bore the names of persons listed on the Company's pay roll of December 3, 1944, which contained the names of 2,800 production and maintenance employees ; and that 24 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 unit claimed by District 50 is substantially the same as that established in the previous consent election, and consists of all produc- tion, maintenance, and construction employees, excluding all super- visory personnel. The Masons desires a unit composed of all brick- layers employed by the Company. The Company, the CIO, and the ACE are in substantial accord with the unit petitioned for by District 50. There is some controversy, however, as to the inclusion or exclu- sion of chauffeurs, janitors, and detail foremen. The Company, the CIO, the ACE, and District 50 dispute the appropriateness of a sepa- rate unit of bricklayers, contending that these employees are a part of the previously established production and maintenance unit. Bricklayers: The Company employs approximately 20 bricklayers, all of whom are a part of the maintenance division of the mechanical department. They are under the supervision of a general brickmason foreman, who in turn reports to the assistant maintenance superin- tendent. The bricklayers report for work at a central location, and are assigned to their work by the brickmason foreman. As a general rule the bricklayers work on the day shift only, although occasionally they are required to work on other shifts, in which case they are super- vised by the shift maintenance superintendent. The bricklayers are the only tradesmen in the plant, and do regular bricklaying work at all times. There are no bricklayer helpers or apprentices employed by the Company. The Company obtains its bricklayers through the Bricklayers Union, which apparently controls the supply of such craftsmen for all employers in the district e Their rate of pay is the going rate for cards were dated during 1942; 120 cards were dated during 1943 ; 12 cards were dated January 1 to March 31, 1944 ; 1,039 cards were dated subsequent to April 1 , 1944, and 6 cards were undated. The CIO submitted 1,525 authorization cards. The names of 1,260 persons appearing on the cards were contained in the aforesaid pay roll, and 15-cards were dated during 1942; 45 cards were dated during 1943 ; 246 cards were dated January 1 to March 31, 1944; 1,189 cards were dated since April 1, 1944 ; and 30 cards were undated. The Masons submitted 23 membership cards. The names of 20 persons appearing on the cards were listed on the Company ',s pay roll of January 19, 1945, which contained the names of 20 persons in the unit alleged by the Masons to be appropriate. All cards were those of paid-up members in the Masons local. The ACE did not submit any showing to establish its interest in the matter but relied on its prior certification as bargaining representative , and its contract with the Company. E All bricklayers hired by the Company through the Masons, United States Employment Service or other source are interviewed by the bricklayers ' foreman, a member of the Masons, before starting work. It was stated by the witness for the Masons that only those men who have cards in the Masons local are eligible to work as bricklayers for the Company. E. I. DUPONT DE NEMOURS & COMPANY 477 bricklayers in the vicinity, established by the Masons. In 1942, the Masons addressed a letter to the Company and similar letters to all their employers in the vicinity requesting that the rate for brick- layers be increased to $1.75 per hour. The Company complied .with this request, although it consulted the ACE before replying to the Masons' letter and the $1.75 rate has, since that time, been the estab- lished rate for the Company's bricklayers. There is no wage rate set for bricklayers in the contract between the ACE and the Company. Although all other production and maintenance employees in the plant are paid on a semi-monthly basis, the bricklayers are paid weekly. This method of payment was customary prior to the certification of the ACE and was never changed. The Company, the ACE, District 50 and the CIO contend that the Masons' participation in,a previous consent election precludes the establishment of the separate unit for which the craft organization contends. The record shows that in the consent election conducted in 1941 the Masons joined with a number of American Federation of Labor unions 7 who signed the agreement for certification upon consent election. The unit set forth consisted of all hourly paid production and maintenance workers. The American Federation of Labor unions appeared jointly on the ballot as the AFL and the bricklayers participated in the election. As previously noted, this election was won by the ACE and it was certified as the bargaining agent. How- ever, it appears that at all times since this certification the brick- layers employed by the Company continued to be members of the Masons, and it does not appear that any of them ever joined the ACE." There is testimony that grievances of the bricklayers have al- ways been handled by the bricklayers' shop steward, who would refer the grievance to the bricklayers' foreman, a member of the Masons' union .9 While most grievances were adjusted at this level of man- agement, thera have been a few instances where it was found necessary to refer them to a higher supervisory level. In such instances the bricklayers' shop steward presented the grievance to the plant man- ager, although the plant manager called in a representative of the ACE in each case, and insisted on negotiating through the ACE committee member. There is no representative of the bricklayers on the ACE executive committee. The bricklayers receive the same benefits as ' In Matter of E I du Pont de Nemours d Company, 24 N. L. R B 919, the Board found appropriate a unit of all hourly production, maintenance and construction employees by stipulation of the parties. This would include bricklayers . The parties to the stipulation were the Company , ACE, District 50, and the West Virginia State Federation of Labor. I It does appear, however, that during the election held in 1944 one of the members of the Bricklayers, who was not employed as a bricklayer at the time, acted as observer for the ACE. None of the other bricklayers participated in this election , in compliance with the instructions of the Masons. The Masons does not contend , however, that the foreman should be included in the unit. 639678-45-vol. 61-32 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other employees under the contract held by the ACE, and both the Company and the ACE' insist that the ACE has always stood ready to represent the bricklayers. Although great stress is placed by the other parties on the partic- ipation of the Masons in the consent election of 1941, we are of the opinion that this action alone is not of sufficient importance to preclude the bricklayers from being represented as a separate craft group if they so desire. It is apparent that at no time prior to or after the cer- tification of the ACE did the craftsmen in question acquiesce in or indicate any acceptance of the ACE as their bargaining agent. In- deed, at all times their separate identity was maintained. This seems to have been tacitly understood by the ACE, since no provision was made for a bricklayers wage scale in the contract; and there was no representative of the bricklayers on the ACE executive committee. The Masons' union is a craft union, has always maintained its craft standards, and controls the labor market for bricklayers in the area. The bricklayers maintained their membership in their craft union both before and after the advent of the ACE; their vital interests, we think, lie in their trade rather than in the industry which they serve in this case. We are of the opinion that the foregoing factors indicate clearly that the bricklayers may properly comprise a separate craft unit 10 or function effectively as part of the production and maintenance unit. In this situation we shall direct that a separate election be held, to ascertain the desires of the bricklayers as to the unit. Production and maintenance unit: There remains for consideration the composition of the production and maintenance unit. With the exception of the chauffeurs, janitors, and detail foremen, the unit is generally agreed on by the Company and District 50, the CIO and the ACE. Chauffeurs: The Company employs two chauffeurs who drive com- pany representatives into town, or other destinations, as required, and drive automobiles on errands under the direction of company executives. The chauffeurs were included in the production and maintenance unit as established in the 1941 and 1944 elections, although they are salaried employees in the service department and under the supervision of the Chief Clerk. The Company, the ACE, and the CIO contend that these employees should be included in the ,production and maintenance unit on the basis of the collective bar- gaining history at the plant, while District 50 requests their exclusion on the ground that there appears to be little functional relationship between the chauffeurs and the production and maintenance group. 10 See Matter of General Electric Company (Lynn River Works and Everett Plant), 58 N. L R. B 57 ; Matter of Cramp Shipbuilding Co , 53 N. L. R. B. 762 ; Matter of Aluminum .Company of America, 42 N. L. R. B. 772. E. I. DUPONT DE NEMOURS & COMPANY 479 While it appears that the functional relationship between the chauf- feurs and other production and maintenance workers is, somewhat obscure, we perceive no valid reason for excluding these employees from the unit of which they have long been a part. To do so would deny them the opportunity for collective bargaining, since all other employees of the plant are presently a part of one of the three estab- lished bargaining units" in the plant. We shall include the chauf- feurs in the voting group of production and maintenance employees. Janitors: In October 1943 a consent election was held in a unit composed of all hourly paid janitors employed by the Company. The ACE won the election, but there was no formal certification by the Board. Subsequent to the election an exchange of letters took place between the Company and the ACE in which it was agreed that janitors should be covered by the existing agreement between the ACE and the Company covering all production, and maintenance employees. No separate agreement has ever been executed covering these employees. The Company stated at the hearing that since the janitors are all hourly paid employees, subject to the same wages, hours, and working conditions as all other hourly paid employees, the unit question would be simplified if the janitors were included, but added that whether or not they were included was immaterial to it. The ACE also takes a more or less neutral position, while District 50 and the CIO would exclude the janitors inasmuch as they were considered in a separate proceeding and were not in the production and maintenance unit covered by the Board's previous certifications. It appears, however, that there is no valid reason for excluding the janitors from the unit found appropriate herein. As pointed out by the Company, janitors work under the same conditions as the other production and mainte- nance employees, and such custodial employees are usually considered an integral part of such a unit. In this case they have been assimi- lated into the plant-wide unit by collective bargaining. We shall include the janitors in the production and maintenance voting group. Detail foremen: The only other point of disagreement among the parties is as to the inclusion or exclusion of detail foremen. All par- ties are agreed that all employees of the rank of subforeman and above are supervisory employees within our usual definition and should be excluded from the unit. There is some question, however, as to whether detail foremen possess sufficient supervisory power to warrant their exclusion from the bargaining unit. The term detail foreman is applied to certain employees in the var- ious production departments who are assigned to take over the fore- men's or subforemen's duties on occasion. There are two types of "The ACE also has contracts with the Company covering technical , clerical, and residual units. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD detail foremen, those who are regularly scheduled to substitute 1 or 2 days a week for foremen, and those who are assigned to foremen's positions only during emergencies, such as when a foreman is ill or on vacation. An employee in the latter group may take a foreman's place for 1 day, or 1 week, and then may never again be called on to act as foreman, or may not be called on to act as foreman for a long period of time. The detail foremen are apparently senior employees in their departments. During the time they act as relief or substi- tute foremen they perform the regular foremen's duties and have the same authority as the regular foremen. At the end of the period for which the employee has been appointed a detail foreman he resumes his regular status in his department, and evidently has no more super- visory authority than any other production worker. While the record .is not too clear it appears that these employees receive a "detail rate" during the period they act as foremen. The company, the ACE, and District 50, contend that since detail foremen spend less that 50 percent of their time doing foremen's work they should be included in the unit. The CIO, however, advances a formula to be used in determining whether or not a detail foreman should be included. It proposes that all employees who have worked as detail foremen at any time during the 6 months preceding the elec- tion to be held herein should be excluded. Neither solution conforms to the history of collective bargaining. The parties have in the two previous consent elections agreed to ex- clude regular detail foremen and we perceive no valid reason for de- parting from this precedent. We shall exclude all such employees from the voting group of production and maintenance, employees and shall describe them, in the language of the prior certifications, as those employees regularly scheduled on detail rate as relief for any foreman, assistant foreman or subforeman." With respect to the bricklayers employed by the Company and the production and maintenance employees, we shall make no final de- termination of the unit or units at this time. In accordance with our findings that the bricklayers may function either as a separate unit or as part of a single plant-wide unit, we shall direct that the question concerning representation which has arisen be resolved by separate elections by secret ballot among the employees in the voting groups described below who were employed during the pay-roll period im- mediately preceding the date of the Direction of Elections herein, subject to the limitations and additions set forth in the Direction. 12 While the record is not too clear on what is meant by employees "regularly scheduled on detail rate" the plant manager testified that he understood the term to mean "those employees who week after week are scheduled to take the foreman's place for a day or 2 days." E. I. DUPONT DE NEMOURS & COMPANY 481 Group 1. All bricklayers employed by the Company at its Belle, West Virginia, plant, excluding all supervisory employees with au- thority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, to determine whether they desire to be represented by the Masons, District 50, the ACE, or the CIO for the purposes of collective bargaining, or by none. Group 2. All other production, maintenance and construction employees, storeroom and field shipping clerks, employed by the Com- pany at its Belle, West Virginia, plant, including the chauffeurs and janitors, but excluding foremen, assistant foremen, subforemen, and those regularly scheduled on detail rate as relief for any foremen, assistant foremen, or subforemen, the patrol force, safety and fire inspectors, gardeners, clubhouse and canteen employees, and all or any other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of em- ployees or effectively recommend such action, to determine whether they desire to be represented by District 50, the ACE, or the CIO, for the purposes of collective bargaining or by none 13 Upon the results of these elections will depend in part our determi- nation of the appropriate unit or units. If a majority of the em- ployees in the voting group 1 select the Masons as their representative they will constitute a separate unit. If a majority of the employees in both voting groups select either District 50, the ACE, or the CIO as their representative, the groups will together constitute a single unit. DIRECTION OF ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 9, of National Labor Rela- tions Board Rules and Regulations-Series 3, as amended, it is hereby DIREarED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with E. I. duPont de Nemours & Company, Belle, West Virginia, separate 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 Article III, Sections 10 and 11, of said Rules and Regula- tions, among the following groups of employees of the Company, who were employed during the pay-roll period immediately preceding the 18 The language of this unit finding is based on the prior certification of this unit by the Board. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 employees who have since quit or been discharged for cause, and have not been rehired or reinstated prior to the date of the elec- tions : 1. All employees described in Group 1, of Section IV, above, to determine whether they desire to be represented by ' Bricklayers, Masons and Plasterers International Union of America, Local No. 9, A. F. L., by District 50, United Mine Workers of America, by Associa- tion of Chemical Employees of Belle Works of E. I. duPont de Nemours & Company, or by United Gas, Coke and Chemical Work- ers of America, C. I. 0., for the purposes of collective bargaining, or by none of the said organizations. 2. All employees described in Group 2, of Section IV, above, to determine whether they desire to be represented by District 50, United Mine Workers of America, by Association of Chemical Employees of Belle Works of E. I. duPont de Nemours & Company, or by United Gas, Coke and Chemical Workers of America, C. I. 0., for the purposes of collective bargaining; or by none of the said organizations.