E. I. Du Pont De Nemours & Co.

552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. I. Du Pont De Nemours & Company and Interna- tional Chemical Workers Union, AFL-CIO, Peti- tioner and International Union of Operating Engineers, AFL-CIO, Local 589, Petitioner. Cases 8-RC-8951 and 8-RC-8932 August 14, 1971 DECISION, ORDER, AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Samuel J. Cognata of the National Labor Relations Board. Federation of Independent Unions, Du Pont System, Local 5 (here- in referred to as Intervenor) intervened on the basis of its prior certification in a unit covering the employ- ees involved. Following the close of the hearing the Regional Director for Region 8 transferred these cases to the Board for decision. The Employer and the Petitioners filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the the entire record in this case the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purpose of the Act to assert jurisdiction herein. 2. The labor organizations I involved claim to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Operating Engineers, in Case 8-RC-8932, 1 The Operating Engineers contends that the Intervenor is defunct We disagree and find that the Intervenor is a labor organization as defined in the Act For approximately 40 years, the Intervenor has represented certain of the Employer's employees for collective-bargaining purposes and has bar- gained with the Employer concerning these employees' grievances, labor disputes, wages, rates of pay , hours of employment, and conditions of work It first acquired Board certification on July 24, 1969, and was last certified on February 2, 1972, after intervening in a petition filed by the Chemical Workers and winning the election Since February 18, 1972, it has engaged in collective-bargaining negotiations with the Employer which were suspend- ed by the Employer when the instant petitions were filed In addition, the Intervenor has processed grievances on behalf of employees , held member- ship meetings, elected officers, and has a membership of approximately 85 percent of the Employer's production and maintenance employees as reflect- ed in the number of valid dues checkoff authorization cards on file with the Employer Accordingly, we find that the Intervenor is a labor organization as defined in Sec 2(5) of the Act seeks to represent a unit of sulphuric acid department employees who are currently represented by the In- tervenor as part of an established unit of approxi- mately 200 production and maintenance employees employed at the Employer's plant in Cleveland, Ohio. The Chemical Workers, in Case 8-RC-8951, seeks to represent all the employees currently included in the overall production and maintenance unit. In support of its petition, the Operating Engineers relies on its assertions as to the distinctive craft nature of the work performed by the employees sought by it, the lack of substantial contact between those and other plant em- ployees, the employees' separate working area and facilities, the inadequate representation of these em- ployees by the Intervenor, and the fact that the Oper- ating Engineers has traditionally represented similar units of employees.' In support of the Chemical Workers petition, the Chemical Workers and the Em- ployer contend that the only appropriate unit is the overall production and maintenance unit . They rely on the frequent daily contact between, and overlap- ping supervision of, the employees in the sulphuric acid department and other plant departments, the long and stable bargaining history in the production and maintenance unit, the history of participation by sulphuric acid department employees in the Intervenor's affairs, the functional integration of the sulphuric acid department in the production process, the uniformity of working conditions in the plant in- cluding a plantwide job bidding procedure, and the fact that Chemical Workers has traditionally repre- sented similar units of employees.' The Intervenor takes no position concerning the appropriateness of the units but would abide by the Board's decision, and wishes to appear on the ballot for any unit which the Board finds appropriate 4 The Employer manufactures sulphuric acid and other industrial chemicals at its plant in Cleveland, Ohio. The plant consists of 25 buildings and is divided into two production areas for supervisory purposes. The sulphuric acid department is in production area number 1. The sulphuric acid department produces sulphuric acid, of which approximately 40 percent is used within the plant in manufacturing other chemicals and 60 percent is sold to customers. The sulphuric acid de- partment also produces steam, air pressure, cooling water, and water for fire protection to the entire plant. 2 The record indicates that the Operating Engineers represents a sulphunc acid department unit at an Allied Chemical Company plant in Cleveland, Ohio 3 The record indicates that the Chemical Workers represents production and maintenance units at five of the Employer's plants, two of which include sulphuric acid department employees It is not clear from the record whether there are sulphuric acid departments in the remaining three plants At the hearing, the Intervenor withdrew a previously filed disclaimer of interest. 205 NLRB No. 71 E. I. DU PONT & CO The steam, air, and cooling water are used throughout the plant in the production processes. A small amount of the steam also is used for heating office space. Most of the steam and water is produced as a byproduct of the sulphuric acid-making process. Additional steam and water are supplied to the plant by a number 18 boiler and a pumphouse, both of which are operated by the sulphuric acid department. There is a plant- wide pipeline system by which the sulphuric acid de- partment employees pump the acid, steam, and air pressure to other departments in accordance with dai- ly telephoned requests from those departments. The nine employees petitioned for by the Operating Engineers consist of four operator engineers, four helper engineers, and one utility man in the sulphuric acid department. One operator engineer and one helper engineer are on duty during each shift. Al- though Ohio law requires only the former to hold a third class stationary engineer's license, the Employer requires the helper engineers also to hold such licen- ses. In addition, there are five maintenance men (also called mechanics) and a clerk permanently assigned to the department, and two maintenance men and a welder temporarily assigned to it. The Operating En- gineers does not seek to represent these employees. The operator engineer controls the entire sulphuric acid production process, performs various tests on the acids, patrols the production area, and directs the maintenance men regularly assigned to the sulphuric acid department to the source of any day-to-day prob- lems. In addition, the operator engineer delivers sam- ples of acid to the plant laboratory for testing, picks up some supplies, and receives all calls from other departments requesting pumpings of sulphuric acid. Such calls are received approximately two or three times a day. The pumps are operated by the helper engineers who are responsible for the pumping of sul- phuric acid to other departments and into and out of storage. The helper engineers also load and unload railroad cars carrying raw materials and finished products. In addition, they routinely inspect the ma- chines in the adjacent pumphouse building. On the third shift, the helper engineer has the additional re- sponsibility of unlocking the parking lot gates and answering all incoming telephone calls for the entire plant because the main switchboard is closed. The utility man's position is the job at which new men are brought into the department and trained. The utility man acquires experience on the job and is re- quired by the Employer to attend school on his own time to obtain an engineer' s license. Once licensed, the utility man progresses as vacancies occur to be- come a helper engineer and then an operator engi- neer. If the utility man is not able to acquire the license after approximately 1 year's training and the 553 completion of his schooling, he is allowed to bid for a job in another department within the plant.5 The full-time clerk permanently assigned to work in the sulphuric acid department works exclusively with the helper engineers, and prepares and keeps records of all bills for shipment as well as the payroll and other records for the department. The clerk shares an office with Production Supervisor Mondock. The department's five permanently assigned maintenance men and the maintenance men and welder tempo- rarily assigned to it are responsible for the repair work in all of the departments in production area number 1, not just that required to be performed in the sul- phuric acid department although they spend most of their working time there. The sulphuric acid department, like all other de- partments in production area number 1, is under the overall supervision and direction of Walsh, the pro- duction superintendent for area 1. That department, however, is directly supervised by Senior Supervisor Wilcox. Wilcox is on duty during the first shift and spends approximately 75 percent of his time supervis- ing operators in the department. The remainder of his time is devoted to duties outside the sulphuric acid department. Wilcox is assisted by Production Super- visor Mondock who also supervises the work of the nine employees in the unit petitioned f or by the Oper- ating Engineers as well as the permanently and tem- porarily assigned maintenance men and the welder. During the semiannual repair shutdowns in the sul- phuric acid department, Mondock supervises virtual- ly all of the plant's maintenance forces who are temporarily assigned to the sulphuric acid department for the duration of the shutdown to perform the ne- cessary repair work. An evaluation of the bargaining history of the em- ployees reveals an established plantwide pattern, with no previous attempts to organize any smaller group of employees. Thus, the Intervenor, under various names, has represented, and entered into successive collective-bargaining agreements on behalf of, em- ployees in a production and maintenance unit since the 1930's. It first acquired Board certification on July 24, 1969, and was last certified on February 2, 1972, after intervening in a petition filed by the Chemical Workers and winning the election. Since the latter date, it has engaged in collective-bargaining negotia- tions with the Employer. And, while not agreeing on a complete contract, the parties have entered into four separate agreements on particular subjects.6 After the 5 In the past 10 years, four employees have transferred from the sulphuric acid department to other plant departments Four of the eight present opera- tor engineers and helper engineers and the current utility man have transfer- red into the sulphuric acid department from other plant departments. 6 One such agreement is a tuition reimbursement plan by which the utility Continued 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instant petitions were filed, the Employer suspended negotiations pending the resolution of the questions concerning representation raised therein. The Operating Engineers contends that the Interve- nor has not adequately represented any of the em- ployees in the production and maintenance unit and particularly those in the sulphuric acid department. It relies on two instances in 1971, one when the Interve- nor declined to represent an operator engineer in a technical grievance and one where it declined to insti- tute arbitration proceedings on behalf of a single em- ployee. We find that these instances are insufficient to establish that the Intervenor has not adequately repre- sented the above employees in light of all the evidence exhibited to the contrary. Thus, during the past year the Intervenor processed 45 grievances on behalf of employees, one of whom was an operator engineer. Furthermore, employees in the sulphuric acid depart- ment have served on the Intervenor's executive board and as its president. Recently an operator engineer was a member of the Intervenor's bargaining commit- tee which negotiated the tuition reimbursement plan for the sulphuric acid department. All employees in the plantwide production and maintenance unit are paid according to the same wage scale and share the same fringe benefits and medical program. There is a plantwidejob-bidding procedure by which jobs in all departments are posted through- out the plant. The job usually posted for the sulphuric acid department is that of utility man, although the licensed positions are posted when they become va- cant. All departments in the plant have separate de- partmental overtime procedures. The sulphuric acid department employees report to a separate building and use their own change room facilities. The mainte- nance men permanently assigned to that department, however, report to an adjacent building. On the undisputed facts contained in the record, we conclude that a unit consisting of the nine sulphuric acid department employees sought by the Operating Engineers is inappropriate as a separate craft or de- partmental unit under Mallinckrodt standards.' Not- withstanding the licensing requirement for the operator engineers and helper engineers and their sep- arate supervision in technical matters, relied on by our dissenting colleague, we note that the record es- tablishes that the operator engineer and helper engi- neers share common supervision with all other plant employees on the second and third shifts and with the maintenance men assigned to the sulphuric acid de- partment on the first shift. Also, the employees peti- tioned for by the Operating Engineers have substantial contact with other plant employees in the regular course of their work. Thus, the operator engi- neers direct and work alongside the maintenance per- sonnel permanently and temporarily assigned to perform repair work in the department; the operator engineers tell the maintenance men the nature and location of mechanical problems and the mainte- nance men notify the operator engineer when repairs have been completed; the operator engineers carry acid samples to other areas of the plant several times a day; and the operator engineers receive telephoned requests for pumpings of acid, steam, and air from employees in other departments. In addition, employ- ees have bid into and out of the sulphuric acid depart- ment from other plant departments via the plantwide bidding system. The maintenance employees assigned to the sulphuric acid department perform work in other plant departments, and maintenance employees from other departments do repair work in the sulphur- ic acid department under the direction of one of that department's supervisors. Furthermore, the sulphuric acid department employees have been included in the overall production and maintenance unit since the 1930's, and the evidence fails to establish that the employees have not been adequately represented by the Intervenor since that time. Also, employees in the sulphuric acid department have participated in the Intervenor's affairs and no other union has ever sought to represent the sulphuric acid department em- ployees in a separate unit. In view of the overlapping supervision of and con- tacts between sulphuric acid department employees and other plant employees, in general, and, specifical- ly, the frequent day-to-day contacts between the li- censed and unlicensed employees in the sulphuric acid department, the long and stable bargaining histo- ry on a plantwide basis, and the high degree of func- tional integration between the sulphuric acid depart- ment and the operations of the entire plant, we con- clude that the separate interests of the operator engineers and helper engineers in the sulphuric acid department are so merged into the broader commu- nity of interests shared by all other production and maintenance employees as to render a separate sul- phuric acid department unit of operator engineers and helper engineers inappropriate. Therefore, we shall dismiss the Operating Engineers petition.8 men in the sulphuric acid department are reimbursed for the cost of their schooling to acquire a stationary engineer's license (November 1972) The other agreements cover a general wage increase (April 10, 1972), a progres- sion-retrogression chart (August 17, 1972), and general hospital and insur- ance benefits (December 1972) i Malhnckrodt Chemical Works, Uranium Division, 162 NLRB 387, 397 8 Mobil Oil Corporation, 169 NLRB 259 Having found, for the reasons set forth above, that the unit requested by the Operating Engineers is not appro- priate for collective-bargaining purposes in the circumstances here, it follows, a fortiori, that it is also not an appropriate unit for severence under the criteria delineated in Mallinckrodt Chemical Works, Uranium Division, 162 NLRB 387, 397 E. I DU PONT & CO. As noted previously, the Chemical Workers peti- tioned to represent the employees in the production and maintenance unit currently represented by the Intervenor. Based on the facts discussed above and particularly the long bargaining history in the overall production and maintenance unit and the recent Board certification of that unit, we find that the fol- lowing employees of the Employer constitute a unit 9 appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act.: All hourly rated production and maintenance employees including fire protection employees and porters and all salaried office clerical em- ployees, plant clerical employees, and laboratory employees, who are nonexempt under the Fair Labor Standards Act, employed at the Employer's plant located at 2981 Independence Road, Cleveland, Ohio, excluding all confiden- tial employees, temporary employees, plant nurse, watchmen, and all professional employ- ees, guards and supervisors as defined in the Act. ORDER It is hereby ordered that the petition filed by the International Union of Operating Engineers, AFL- CIO, Local 589, in Case 8-RC-8932 be, and hereby is, dismissed. [Direction of Election and Excelsior footnote omit- ted from publication.] MEMBER FANNING, dissenting: As in Mobil Oil Corporation, 10 upon which the ma- jority relies to deny severance, I would find a tradi- tional powerhouse unit, as requested by the Operating Engineers, appropriate for separate bargaining and grant a severance election. Until Mobil Oil, as I point- ed out in my dissent in that case, the published deci- sions of the Board severing powerhouse units from larger units were legion." My apprehension that Mo- bil Oil marked the demise of the traditional power- house unit as a unit appropriate for severance was somewhat allayed in Towmotor, 12 where a unit of 9 As we are directing an election in a larger unit than that requested by the Operating Engineers and as the Operating Engineers failed to state whether it wished to be included on the ballot for such larger unit, we shall permit the Operating Engineers to be included on the ballot upon written notice to the Regional Director, within 10 days from the date of this Decision and Direction of Election In the event that the Operating Engineers chooses to be included on the ballot , those employees eligible to vote shall vote whether or not they desire to be represented for collective -bargaining purposes by International Chemical Workers Union , AFL-CIO, Local 589, or by the Federation of Independent Unions, Du Pont System , Local 5, or by none of the above 1s 169 NLRB 259 11 Id In 12 555 powerhouse employees was granted a severance elec- tion. However, unlike the other majority member on that decision, I did not rely on the special circum- stances of the powerhouse operation being a new op- eration recently accreted, but on special skills and separate supervision of its employees. Now it appears that the apprehensions I expressed in Mobil Oil were well founded. In my opinion there is little to distinguish this case from Towmotor without giving undue weight to a long bargaining history by the Federation of Independent Unions, Du Pont Systems, Local 5. For as in Towmo- tor we are dealing with a traditional departmental grouping of skilled employees who work exclusively in a separate area. In fact, they work in a separate building, have their own change area, and enjoy sepa- rate immediate supervision. All of the operator engi- neers and helper engineers are required by the employer to be licensed as stationary engineers," though the State requires only one such per shift. Only as to these engineers is overtime restricted to the same job classification, and plantwide posting of openings for a stationary engineer has no significance. Only the post of utility man is actually filled as a result of posting. In finding severance inappropriate the majority re- lies on alleged employee interchange and contact with unlicensed employees. With all due respect I submit that the contact of the powerhouse employees with other employees is at best minimal. The majority stresses the fact that five maintenance employees are permanently assigned to the contact department, a name the Employer uses interchangeably with sul- phuric acid department, and that Petitioner does not seek to represent them. Even the Employer admits that these five employees though "assigned" to the department "are not a part of it." They are on the payroll of the construction and repair department and report to their own maintenance building where they have their own change and lunch area. They are sepa- rately supervised and responsible not only for mainte- nance and repairs in the contact department but also the repair work in all the departments of production area number 1, the latter being one of the two produc- tion areas into which this large complex is divided. Nor, as suggested by the majority, do the engineers work side by side with the maintenance employees. When repairs are necessary in the contact department (the maintenance employees work only on the first shift) the engineers merely shut down the equipment involved so that the maintenance employees can 12 Towmotor Corporation, 187 NLRB 1027, Member Jenkins dissenting 13 The ninth employee, classified as a "utility man," is required by the employer to obtain a stationary engineer's license within a year or leave the sulphuric acid (contract department herein) department All three classifica- tions are herein referred to as engineers 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD make the required repairs in safety. The engineers do not work with the maintenance men. The clerk as- signed to the contact department, another alleged ex- ample of integrated work functions, is under separate supervision and has no contact with the operator engi- neers. His bookkeeping responsibility involves con- tact only with the helper engineers and this is minimal. The engineers' contact with the remainder of the approximately 200 employees is limited to the telephone. Thus the engineers receive one call per day from one department, and about two calls per week from various other departments, concerning the sup- ply of steam, air, and cooling water. The majority also emphasizes shared common su- pervision with other plant employees. Yet Depart- ment Supervisor Wilcox, who is licensed, is admittedly the primary supervisor of the engineers and supervises them with respect to all technical mat- ters. It appears that the 25 percent of his time spent outside the department is occasioned by his responsi- bility for steam, air, and water pressure throughout "this complex plant facility." Although the Employer witnesses testified Wilcox is assisted by Production Supervisor Mondock, who is not a stationary engi- neer, the record reveals little of Mondock's duties or responsibilities except that he is the foreman for the maintenance employees. Wilcox does not assign work to the maintenance employees, "because they're his [Mondock's] men." The majority also notes that the area 1 night-shift supervisor supervises the entire plant, all 25 buildings. He is not a licensed engineer and it is obvious that he does not actually supervise the contact department. It appears that his so-called supervision is at most a brief visit that may occur during the shift to see that in all departments the Employer's production process is running smoothly. Moreover, Department Supervisor Wilcox is on 24-hour call. If a technical problem arises in the contact department on the night shift, Wilcox is notified. Wilcox admitted that the night-shift super- visors are incapable of operating the contact unit. In the final analysis the majority's decision herein is grounded on the same factor relied on by the major- ity in Mobil Oil and the only factor which distinguish- es Towmotor-the long bargaining history on a plantwide basis. In that connection in Mobil Oil, I stated: My colleagues emphasize particularly the "long and stable" bargaining history . . . as ground for denying these powerhouse employees democratic expression. Are they saying that these employees . . . have had satisfactory representa- tion because their inclusion in an overall unit . .. has been unaccompanied by labor strife? Under Mallinckrodt, are groups traditionally granted separate representation to be required to demonstrate an unstable bargaining history by overt protest actions in order to qualify for sepa- rate representation? The adequacy of employee representation, it seems to me, is better judged by employee reaction expressed by vote in an appro- priate separate unit or voting group rather than by Board fiat based solely on the presumption that denial of opportunity to sever will necessari- ly prolong stability. Separate seniority and top wages under the contract . . . may also, to my colleagues, seem like satisfactory representa- tion-though it is difficult to understand how these same factors are convincingly consistent with a merger of interest with rank-and-file em- ployees-but to the employees concerned the problem of satisfactory representation may be focused on entirely different conditions of em- ployment. Why now should the Board substitute its judgment in this regard for the hopes and desires of a majority of the employee group? Again I am compelled to ask why the Board should substitute its judgment for that of the employees.14 In this connection I note that at the time of the hearing only one of the nine employees involved herein was a member of the Independent. In conclusion I believe these employees should be afforded an opportunity to decide if they desire to be represented by the Operating Engineers which has traditionally represented and is fully qualified to rep- resent such employees. I would, consistent with what I believe to be the statutory intent," grant severance and let this traditional group with separate skills de- cide its own fate by means of a self-determination election. 14 In this regard I am obliged to note that it does appear that the Indepen- dent is in the process of dissolution and that the Independent 's efforts have been less than adequate in connection with the engineers ' grievances Thus it has declined to represent one engineer because of the technical nature of his grievance and declined to institute arbitration proceedings on behalf of a single engineer presumably because of the expense involved Finally in the grievance of engineer Pease , who originally refused Independent representa- tion, although the Independent and the Employer agreed Pease would receive no reprimand, he nevertheless received the reprimand shortly thereafter, contrary to the agreement is Sec 9(b)