E. I. du Pont

In the Matter of E. 1. DU PONT (GRAssELLI DIVISION) and, LEAD BURNERS L. U. No. 596, UNITED ASSOCIATION, A. F. OF L. Case No. 2-R-56446.-Decided January 11, 19%16 Mfr. Peter B. Collins, of Wilmington, Del., for the Company. Mr. Joseph P. Dunn, of Newark, N. J., and Mr. John M. Catterson, of Park Ridge, N. J., for the Lead Burners. Mr. Henry Mayer, by Mr. Irwin Panken, of New York City, for the Independent. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF TIIE CASE Upon petition duly filed by Lead Burners, L. U. No. 596, United Association, A. F. of L., herein called the Lead Burners, alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of E. I. du Pont (Grasselli Division), Grasselli, New Jersey, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Henry J. Kent, Trial Examiner. The hearing was held at New York City, on July 12 and 26 and August 3, 1945. The Company, the Lead Burners, and Grasselli Employees' Association, an unaffiliated labor organization, herein called the Independent, appeared and partici- pated. At the commencement of the hearing, the Lead Burners moved to amend its petition, and the motion was granted by the Trial Ex- aminer. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues. 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. 65 N. L. R. B., No. 71. 390 E. I. DU PONT ( GRASSELLI DIVISION) 391 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY E. I. du Pont is a corporation engaged in the manufacture of chemi- cals. Its main office is at Wilmington, Delaware. Its plant at Gras- selli, New Jersey, is the only plant involved in the proceeding. During 1944, the Company used at its Grasselli plant raw materials valued at approximately $4,000,000, of which 80 percent represents shipments made to the plant from points outside New Jersey. Dur- ing the same period, the Company manufactured at the Grasselli plant products valued at approximately $15,000,000, of which 75 percent represents shipments to points outside New Jersey. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Lead Burners L. U. No. 596 is a labor organization, affiliated with the United Association of Plumbers and Steam Fitters of the United States and Canada and with the American Federation of Labor, ad- mitting to membership employees of the Company. Grasselli Employees' Association is an unaffiliated labor organiza- tion, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On May 15, 1945, the Lead Burners filedthe petition in this proceed- ing. At a conference subsequently held between the Company and the Lead Burners, it became apparent that these parties disagreed as to the appropriate bargaining unit for employees at the Grasselli plant. On May 22, 1944, the Company and the Independent entered into a bargaining agreement covering production and maintenance em- ployees at the Grasselli plant. The contract provides that it may be determined by either party upon 30 days' written notice. We find that the contract is of indefinite duration and that it constitutes no bar to a determination of representatives at this time. A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the Lead Burners represents a substantial number of employees in the unit proposed as appropriate.' 1 The Field Examiner reported that the Lead Burners submitted 15 cards, which the Company concedes bear the names of lead burners at the Grasselli plant. There are approximately 16 employees in the unit proposed by the Lead Burners. The Independent relies on its contract covering lead burners and other plant employees to indicate its interest among these employees. 392 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; TILE DETERMINATION OF REPRESENTATIVES The Lead Burners contends that lead burners and lead burners' apprentices at the Company's Grasselli plant constitute a separate appropriate unit. The Company and the Independent, conceding that lead burners are skilled craftsmen, nevertheless contend that the pro- posed craft unit is not appropriate on the grounds (1) that all skilled and unskilled maintenance employees at the p]ai t work together to the common end that production processes may be carried on without inter- ruption and are, therefore, bound by a common interest that requires their inclusion in a single unit for bargaining purposes; and (2) that the history of bargaining on a plant basis at the Grasselli plant over a period of years and bargaining on a plant, basis at other plants of the Company demonstrate that the plant unit is the only appropriate unit for the Company's employees and preclude separate bargaining on a craft basis at this time. In addition to production employees at the plant, who are chiefly concerned in the operations directly involved in the handling of raw materials and the processing and shipment of chemical products, the Company employs maintenance workers, whose primary charge and concern, under the general supervision of the master mechanic, is the construction, maintenance, and repair of the Company's processing properties in order that the production flow may proceed smoothly without interruption. These maintenance employees include riggers, carpenters, electricians, and lead burners, who possess skills peculiar to their respective craft work; apprentices in the several crafts, who are embarked on defined special training programs; and helpers, who, as unskilled laborers, do whatever may be necessary to prepare a loca- tion for the work of craftsmen, give help in lifting and such other aid as may be required while a repair or construction job is in process, and clean up the location when the work has been completed. At the time of the hearing, the Company employed at its Grasselli chemical plant 15 lead burners. The Company's lead burners, like others of their craft, fabricate, install, maintain, and repair lead equipment. No other employees at the Company's Grasselli plant per- form like work. For efficiency in operation, the Company distributes its lead burners among the several departments at the plant where lead work is usually required. Six lead burners regularly work in and out of the lead shop, situated in the maintenance area of the plant under the direct supervision of the lead foreman; 6 others work under the supervision of an area mechanics foreman in the so-called System E. I. DU PONT ( GRASSELLI DIVISION) 393 unit; and 3 others have substantially permanent assignments in 3 other operational units under the respective foremen of those units, and all under the general supervision of the master mechanic. With the exception of some lead work which may be performed by a lead burner working alone, lead burners are required , by the nature of the medium on which they work, to depend upon the supports erected, maintained, and constructed by riggers and carpenters for their use. Lead workers are subject to special hazards, such as toxic fumes from lead and acid, and in the absence of adequate precautions, lead work is likely to result in some form of lead poisoning. New Jersey, wherein the Company's plant is located, and other States require that lead workers be provided with adequate washing facilities and that certain equipment and time be allotted by their employer for precau- tionary measures against occupational diseases. Taking into consideration the allotment of lead burners among the separate locations about the plant, the common plant conditions which lead burners and all other employees on the Company's pay roll share through common unemployment with the Company, and the coopera- tion of other skilled and unskilled workers that lead burners may ef- fectively perform their work, we find, nevertheless, that the Company's lead burners constitute a clearly identifiable and homogeneous group of employees with employment interests perculiar to their craft and that, absent other considerations, they may properly constitute a sep- arate bargaining group.' With respect to the bargaining history at the plant, which the Com- pany and the Independent urge as a bar to the proposed bargaining unit based along craft lines, the record reveals the following: Employees at the Company's plant organized the Independent in 1937, and a majority of employees , including clerical employees, lead burners, and other skilled and unskilled employees, became members, and some lead burners held office within that labor organization. The Company, thereafter, recognized the Independent as the exclusive bar- gaining representative of its plant employees. Committees of the Independent from time to time negotiated with the Company for wage increases and improved working conditions at the plant. The Com- pany posted notices of such changes. Grievances which were not settled by employees and their respective foremen were settled through conferences between representatives of the Company and the Inde- pendent. Between 1937 and March 1944, the Company and the Inde- pendent, however, entered into no written collective bargaining con- tract covering employees at the plant. The Lead Burners organized the lead burners working at the Com- pany's plant in 1938 and 1939 and, for a time, these employees main- 2 See Matter of National Lead Company, Titanium Division, 63 N. L. R B. 903. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tamed a dual union membership in the Lead Burners, as craftsmen, and in the Independent , as plant employees of the Company . In 1941, however, the Company's lead burners , as directed by the Lead Burners, gave up their membership in the Independent and thereafter devoted their attention to their craft organization and the furtherance of their craft development . The withdrawal of the lead burners from the Independent was well known to the general plant employees who re- tained their membership in the Independent , and reports of the with- drawal of the lead burners from the Independent and their adherence to their craft organization came to the attention of the Company. Under these circumstances annd without any formal determination of the appropriate unit or units for employees at the plant , the Com- pany and the Independent , in March 1944, entered into their first written bargaining agreement, which, as noted in Section III, above, is a contract of indefinite duration . The contract recites the recogni- tion of the Independent by the Company as the bargaining repre- sentative of the plant employees and covers non-supervisory employees at the plant, including lead burners and other craft groups. The con- tract provides against discrimination for membership or nonmember- ship in the Independent and recites that craft lines will be observed "in accordance with practices established in the past." Grievances, by practice and in accordance with the provisions of the contract, are negotiated and, in many cases, settled by the immediate foreman con- cerned. The foreman of the lead shop, himself a lead burner, in his capacity as foreman , settles grievances for employees under him, and he and other foremen under whom lead burners are working present grievances which they cannot settle to their superior , the master mechanic , for consideration . The Independent, as recognized bar- gaining representative , continues to function for all plant employees in formal meetings with representatives of managment . Contrary to the contentions of the Company and the Independent , we find that the bargaining relations between the Company and the Independent have not established a history of collective bargaining which precludes the appropriateness of a separate bargaining unit for the Company's lead burners at this time . That employees at other plants of the Company bargain on a plant basis is not alone conclusive of the scope of the bar- gaining unit for employees at the Grasselli plant. We find that the Company's lead burners may properly constitute either a separate bargaining unit or part of the larger production and maintenance group at the plant. We will hold an election among the Company's lead burners to determine whether they desire to be repre- sented by the Lead Burners or by the Independent , and we shall make no determination of the unit issue until the results of the election shall have been disclosed. E. I. DU PONT (GRASSELLI DIVISION) 395 The Lead Burners would include lead burners' apprentices in the proposed craft unit, and would exclude the unskilled helpers. The Company and the Independent question the appropriateness of the scope of the proposed unit if helpers are excluded. Helpers are laborers, drawn from a pool of some 25 laborers assigned to assist maintenance workers. Approximately 12 laborers are regularly as- signed to assist lead burners, and other laborers may be assigned to them if required. As laborers, helpers are not specifically skilled, but by regular assignment to lead burners as lead burner's helpers, they acquire some facility and experience for working with such crafts- men. Helpers who show an aptitude and liking for lead work some- times become apprentices in the craft. The Lead Burners has craft jurisdiction to accept lead burners' helpers into membership, and some helpers at the plant may be members of the Lead Burners. The record does not disclose, however, that the Lead Burners has organized lead burners' helpers as a group at the Company's plant. Under these circumstances, we shall exclude helpers from the voting group. We will further exclude foremen, who are supervisory employees, and other supervisory employees, in accordance with our usual practice. Those eligible to vote in the election will be all lead burners and lead burners' apprentices, excluding lead burners' helpers, foremen, and all 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, 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 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 DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with E. I. du Pont, Grasselli, New Jersey, an election by secret ballot shall be conducted as early as possible, but not later than sixty (60) days from the date of this Direction, under the direction and supervision of the Regional Director for the Second 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 Regulations, among lead burners and lead burners' apprentices 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 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 election, to determine whether they desire to be represented by Lead Burners L. U. No. 596, United Association, A. F. of L., or by Grasselli Em- ployees' Association, for the purposes of collective bargaining, or by neither. PAUL Al. HERZOG, CHAIRMAN, dissenting in part : I agree with my colleagues' resolution of the issues in this case, except that I would not exclude the lead burners' helpers from the unit. It appears that the same helpers work, day in and day out, with the lead burners, with the result that they acquire a modicum of skill. At least that must be the assumption of the Lead Burners Union itself, because that craft organization admits helpers to membership. Its unwillingness to include them in this particular unit would therefore appear to have little objective support.