E. I. Du Pont de Nemours & Co., Inc.

E. I. DU PONT DE NEMOURS & CO., INC. 395 E. ,I.; Du ! Pont! de, Nemours & 'Co., Inc. and' United Steelworkers of America, AFL-CIO, CLC, Peti- tioner. Case 5-RC-8648 April 30, 1974 DECISION AND CERTIFICATION OF REPRESENTATIVE the meaning of the Act, and it will effectuate the policies of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of the employees of the Employer within the meaning of Sections 9(cXl) and 2(6) and (7) of the Act. BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election, executed by the parties and approved by the Regional Director on August 10, 1973, an election by secret ballot was conducted on September 11 and 12, 1973, under the direction and supervision of the Regional Director for Region 5 among the employees in the unit described below. At the conclusion of the election, the parties were furnished a tally of ballots which showed that of approximately 382 eligible voters, 381 cast ballots, of which 190 were for, and 177 against, the Petitioner. There were 14 challenged ballots which were suffi- cient in number to affect the results of the election. After conducting an investigation, the Regional Director on October 4, 1973, directed that a hearing be held to resolve the challenges. Pursuant thereto a hearing was held before Hearing Officer Louis J. D'Amico. On December 20, 1973, Hearing Officer D'Amico issued his Report on Challenged Ballots in which he recommended that the challenges to the 14 ballots be overruled and that the ballots of Ronald D. Heflin, Mark S. Caldwell, Ernest W. Dern, Robert Grubb, William Fraley, Wayne Whitmore, Daniel Viands, James Fulk, John Hildebrand, Rupert Armel, Detral Merchant, Wil- liam Grant, Warren Stein, and Charles Hornbecker be opened and counted. Thereafter, the Petitioner filed timely exceptions to the Hearing Officer's report and recommendations.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record in this case, including the Hearing Officer's report and the Petitioner's exceptions thereto. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within 1 it is not clear whether Respondent has excepted to the Hearing Officer's recommendation that the challenges to the ballots of Mark S. Caldwell, Ernest W. Dern, and Ronald D. Heflin be overruled. However, in 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All wage roll production and maintenance em- ployees and wage roll laboratory employees at the Employer's plant and laboratory located at Falling Waters, West Virginia, including all truckdrivers, but excluding all office clerical employees, professional employees, watchmen, guards, and supervisors as defined in the Act, as amended. 5. The Board has considered the challenges, the Hearing Officer's report, the Petitioner's exceptions, and the Employer's brief supporting the Hearing Officer's report, and hereby adopts the Hearing Officer's findings, conclusions, and recommenda- tions only to the extent consistent with this Decision. Petitioner challenged the ballots of Rupert Armel, William Fraley, James Fulk, William Grant, Robert Grubb, John Hildebrand, Charles Hombecker, Detral Merchant, Warren Stein, Daniel Viands, and Wayne Whitmore on the ground that they were supervisors within the meaning of Section 2(11) of the Act. The Employer manufactures high explosive prod- ucts at its plant situated in Falling Waters, West Virginia. In the summer of 1971, the Employer's plant began plans to produce a dynamite substitute, cartridge water gel. Initially the plans called for temporary production facilities in the Miscellaneous Explosive Department (MED), followed by the construction of a new permanent facility, should the water gel prove acceptable to customers. During the initial stage of this project, Grubb was promoted in September 1971 to a relief foreman job in MED. At that time, Grubb was told that the operation was expected to be of limited duration and that, if the explosive turned out to be a success, a new plant would be built which would eliminate the need for a relief foreman. When the initial production stage proved the water gel commercially acceptable, the new plant construc- view of resolution of the remaining challenges these challenges are insufficient in number to affect the election and therefore are no longer determinative. 210 NLRB No. 51 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion plans were begun in the summer of 1972 and simultaneously the temporary production facilities were expanded by increasing the number of shifts and days of operation. This necessitated more relief foremen, so, in October 1972, Fraley and Hornbeck- er were promoted to that job. Fulk in December 1972 and Whitmore in February 1973 were similarly promoted.2 Each was told that their tenure as relief foreman would be limited in time and that they would return to "unit" jobs. Viands was appointed to relief supervisor in May 1973. All continued to serve in that capacity at the time of the election. In December 1972, the Powder Department decid- ed that it needed experienced relief supervisors. Armel, Grant, Hildebrand, and Merchant were selected and began training for that job. They were promoted in February 1973. Upon the completion of their program, some permanent foremen in the Powder Department were given other assignments, and these individuals took over as supervisors for the duration of the assignments. In June 1973, the Powder Department needed one more relief foreman and Stein was promoted. The parties stipulate that all 11 continued at all times from the dates of their promotions to at least the dates of the election held on September 11 and 12, 1973, to perform their relief foremen duties. During the time the 11 have been relief foremen they have retained certain benefits which they enjoyed as unit employees; job preference cards, bidding rights, listing on wage roll, scheduling of vacations with wage roll employees, listing on overtime records, and retention of lockers. All 11 relief foremen were advised when promoted that their tenure would be temporary, but there is no evidence that any of these relief foremen or any of the unit rank-and-file employees had been advised by the Employer of a specific time when the relief foremen would cease to exercise supervisory authority and would return to their unit jobs. Indeed, it appears that no one including the Employer knew with any certainty when these individuals would return to unit work.3 The Hearing Officer recommended that the relief foremen, although exercising Section 2(11) superviso- ry authority on both the eligibility and election dates, should be permitted to vote, basing his recommenda- 2 Hombecker, unlike Grubb, Fraley, Fulk and Whitmore, did not serve as a foreman in connection with the water gel project, but replaced a foreman on temporary assignment with that project 3 Employer does contend the assignments would not extend beyond December 1973 Such a limiting date several months beyond the assignment date is insufficient to establish that Employer knew when the individual would be relieved of his supervisory duties In any case, this information was never conveyed to the individual or to the employees he supervised 4 The Hearing Officer relied on United States Steel Corporation, Central Furnace, 188 NLRB 309, finding the employees analogous to employees in temporary layoff status. However, in that case, the Board was determining the eligibility of individuals to vote where they were supervising nonumt tion on his finding that the jobs were of a temporary nature.4 We do not agree. It is true, as a general proposition, that individuals holding "temporary" supervisory positions are nor- mally found eligible to vote in Board elections .5 This is so because, in most situations, temporary supervi- sory assignments may properly be viewed as relative- ly insignificant interludes in regular employee assign- ments. That does not appear to us to be the case here. Here, the relief foremen worked continuously as supervisors of unit personnel for periods ranging from 3 months to 24 months prior to, and including, the election dates. As the Hearing Officer found, "whether the duration of these relief foremen positions for the water-gel explosive would be short- lived or not was dependent on factors that could not be controlled; i.e., experimental and developmental work, production problems, customer acceptance, etc." In fact, there is evidence that many of the "relief foremen" have, in the past, become perma- nent foremen. At the least, even those who might ultimately be returned to the unit would continue to be called upon to relieve the "permanent" foremen during their annual 5-week vacations, and during other absences for illness or other reasons .6 We note, moreover, that the individuals in ques- tion, unlike those involved in other cases,7 supervised the very employees in the unit, for the entire period of the organizational campaign up to and including the election. To grant the relief foremen unit and voting eligibility for this election would, it seems to us, present serious conflict of interest problems. Should we find the relief foremen to be employees, and eligible to vote, because of their allegedly overriding interest in the outcome of the election, presumably they should be entitled to ask their fellow employees how they would vote, and convey to them their own thoughts about organization-in- cluding, perhaps, what the Employer would do in the event of unionization. They would, in order to cast an informed vote, be entitled to attend union meetings, inquire as to who is supporting the union, and engage in the many other activities to which "employees" are entitled under Section 7. Presuma- bly the relief foremen could legitimately run for union office, and be privy to intimate union employees on a temporary basis. In that decision, the Board noted that the analogy may not hold with respect to an individual supervising unit employees, and permitted the one temporary supervisor who was supervis- ing unit employees to vote subject to resolution of his eligibility through the challenge procedure 5 See, e g., Stewart & Stevenson Services, Inc, 164 NLRB 741 6 Whether, in fact, some of the "relief foremen" were returned to their unit jobs after the election is not material, since it is the relief foremen's status on the eligibility and election dates, not that which later developed, which is controlling. 7 See, e.g., Westinghouse Electric Corporation, 163 NLRB 723. E. I. DU PONT DE NEMOURS & CO., INC. organizational plans. On the other hand, since these foremen, though deemed "relief," constituted the major part of the Employer's supervisory cadre throughout this period, the Employer would have been entitled to insist that they campaign on its behalf against the Union and perhaps consult with it about the progress of the campaign. We believe that unit employees have the right to engage in union activities and in the choice of a collective-bargaining representative free from the participation of individuals who have been their chief, and perhaps only, supervisors for indefinite periods of time ; who at the time of the election appeared to have prospects of continuing in a supervisory role for further periods; and, perhaps most importantly, whose loyalty the employer could and undoubtedly would, demand during the preelec- tion period. Accordingly, we find the relief foremen ineligible to vote and we hereby find that the challenges to the ballots of Rupert Armel, William Fraley, James Fulk, William Grant, , Robert Grubb, John Hilde- 397 brand, Charles Hornbecker, Detral Merchant, Warren Stein, Daniel Viands, and Wayne Whitmore should be sustained. As noted above, the remaining three challenges are no longer determinative of the results of the election. Accordingly, and in view of the fact that the tally of ballots shows that a majority of the valid votes cast has been cast for Petitioner, we shall issue a certification of Petitioner as the collective-bargaining agent for the employees in the above-described unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for United Steelworkers of America, AFL-CIO, CLC, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the unit found appropriate herein for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.