Du Pont de Nemours, E. I., & Company

I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD E. I. Du Pont de Nemours & Company and Old Hickory Employees' Council. Case 26-CA- 9035 September 23, 1982 DECISION AND ORDER BY CHIAIMNA N VAN D1)1 WATER AND MILMBIRS FANNING AND ZIMMERMAN On June 23, 1982. Administrative Law Judge Richard L. Linton issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed an answering brief. 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. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, E. I. Du Pont de Nerrnours & Company, Old Hick- ory, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(b): "(b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative law Judge. I WE Inlte Ihall Ithe charge helcni .a, tiled i1on April 27. M1KI, not June 27. 1981. as inadvertentll I) Ilt.d by the Adriiitraliwv lI.as Judge in his D)ecisiion 2 The Admnilistralliv; e tI.., Judge failed III include ihc inijlnctlie lan- guage traditionally provided by Ihe loard VWc halc modified his recom- mended Order and nltlllc I1 illcilide it APPENDIX NoTlicE To EIPI oYtIi S POSTED BY ORDER 01 THE NATIONAl LABOR RlIATIONS BOARDI) An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the followrig rights: To engage in self-organi7ation To form, join, or assist any u:nion To bargain collectively through i]aPre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. Accordingly, we give you these assurances: WE WII.l NOI refuse to bargain collectively with Old Hickory Employees' Council by re- fusing to furnish that labor organization straight time hourly wage rates and job classi- fications pertaining to similarly skilled employ- ees employed at the nine Du Pont plants listed below in this notice. WE wiil. NOTr in any like or related manner interfere with, restrain, or coerce our employ ees in the exercise of their Sectionl 7 rights WE wii.i furnish Old Hickory Eniplo,,c.s Council the straight time hourly \wagc rates and job classifications pertaining to cineplo ees employed at the below-listed nine Du I Pont plants who utilize job skills similar to those utilized by employees at our Old Hickory, Tennessee, plant: Richmond, Virginia Chattanooga, Tennessee Martinsville, Virginia Seaford, Delaware Kinston, North Carolina Camden, South Carolina Cooper River (Charleston), South Carolina Cape Fear (Wilmington), North Carolina Waynesboro, Virginia E. I. Du PONTI DE NEMOURS & Co()- PANY 264 NLRB No. 5 48 E. 1. DU PONT DE NEMOURS DECISION STATEMENT OF THE CASE RICHARD J. LINTON, Administrative Law Judge: This case was heard before me in Nashville, Tennessee, on March 17, 1982, pursuant to the June 9, 1981, complaint issued by the General Counsel of the National Labor Re- lations Board through the Regional Director for Region 26. The complaint is based upon a charge filed June 27, 1981, by Old Hickory Employees' Council (OHEC, Union, or Charging Party) against E. I. Du Pont de Ne- mours & Company (Respondent or Du Pont).' In the complaint, the General Counsel alleges that Re- spondent violated Section 8(a)(5) of the Act by refusing to furnish OHEC with the straight time hourly wage rates and job classifications of certain employees at nine Du Pont plants. By its answer, Respondent admits certain factual mat- ters but denies that it has violated the Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the briefs filed by the General Counsel and Re- spondent. I make the following: FINDINGS OF FACT I. JURISDICTION A corporation headquartered in Wilmington, Dela- ware, Du Pont has a textile fiber plant in Old Hickory, Tennessee, where it manufactures synthetic textile fibers. During the past 12 months, Respondent sold and shipped from its Old Hickory plant goods and material valued in excess of $50,000 directly to points outisde the State of Tennessee. Respondent admits, and I find, that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act. II. L.ABOR ORGANIZATION INVOLVED Respondent admits, and I find, that OHEC is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Procedural History On October 29, 1981, the Regional Director for Region 26 consolidated the instant case for hec.:ing with two others, Cases 26-CA-8798 and 26-CA-9124, as part of an amended consolidated complaint. It was therein al- leged that an earlier settlement agreement in Case 26- CA-8798, unilaterally approved, was being set aside by Respondent's failure to abide by the terms of the agree- ment. On March 10, 1982, the Regional Director for Region 26 severed the instant case from Cases 26-CA-8798 and 26-CA-9124. It appears that Region 26 has approved unilaterally (i.e., over OHEC's protest) a settlement of the other two cases. Many details of the charges, complaints, and settle- ments are contained in OHEC's 12-page (plus attach- ' All dates are for 1981 unless otherwise indicated ments) "Application for Reasonable Attorney's Fees" which OHEC counsel submitted at hearing as Charging Party's Exhibit 1. Following argument, I rejected the document. While I take administrative notice of the above information for the limited purpose of discussing this procedural event, the extensive background details contained in the document are not relevant to the limited allegation in the instant case. At hearing, counsel for OHEC contended that attorney's fees should be awarded as part of an appropriate remedy in the event a violation is found herein. B. Recognized Bargaining Unit Since July 1945, Respondent has recognized OHEC as the exclusive collective-bargaining representative of the employees in the following unit: All the hourly wage roll production, maintenance and power house employees at the Respondent's Old Hickory, Tennessee Plant, Textile Fibers De- partment, including instructors, but excluding guards, firemen, fire inspectors, office, clerical, sala- ried technical, and professional employees and relief foremen who serve in that capacity either regularly or for substantial periods of time during the course of the year, and other supervisors as defined in the Act. Du Pont's recognition of the Union regarding the fore- going unit has been embodied in successive collective- bargaining agreements. The current agreement became effective on April 7, 1976, for an indefinite period sub- ject to termination or modification on a written advance notice of 60 calendar days. Under article IV, section 2, of the contract, wages can be reopened for negotiations upon notice of 10 days.2 In its brief, Du Pont represents that on July 31, 1981, a representation petition was filed in Washington, D.C., by the United Steelworkers of America, AFL-CIO-CLC (Steelworkers), for a multiplant, single unit covering pro- duction and maintenance employees at 14 (later enlarged to 16) of Respondent's facilities. "Ultimately, fourteen separate units were sought in elections held the week of December 7, 1981. Employees at Old Hickory voted to retain the Independent Union." (Br., p. 4.) Ronald R. Moore, OHEC's president, testified that the Union's (ex- ecutive) board endorsed the Steelworkers, and that one of the Steelworkers central campaign themes was to achieve companywide bargaining. Moore testified that he "heard" that the Steelworkers, as part of a companywide bargaining program, would attempt to secure uniform (wage) rates at all unit locations of Du Pont. C. The Bargaining Request By letter dated February 23, 1981, OHEC, by Presi- dent Ronald R. Moore, requested Respondent to begin negotiations on (new) wage rates. Assistant Plant Man- ager R. J. Iveron responded by letter of March 3, agree- ing to the negotiations and appointing Goldman D. Free- 2 The parties refer to this as the "evergreen" clause. 49 DECISIONS OF NATIONAL LABOR RELATIONS BOARD land and R. H. McGee as his bargaining designees. The initial bargaining session was held on March 17 with ad- ditional sessions held on March 30 and April 6, 13, and 20. At the fifth and final session on April 20, OHEC ac- cepted Du Pont's offer on new wage rates (Resp. Exh. 11). Moore testified that Du Pont labeled it their "final" offer and OHEC therefore accepted it. Respondent admits that, since on or about March 17, OHEC has requested that Du Pont provide the Union with the following data: Straight time wage at Du Pont plants company wide on an hourly basis. Du Pont denies complaint paragraph 12 which, as amended, alleges (G.C. Exh. 4): The information requested by the Union, as it re- lates to the wage rates and job classifications per- taining to similarly skilled employees employed at Respondent's plants in its Textile Fibers Division, specifically including its plants in the following lo- cations, is necessary for and relevant to the Union's performance of its function as the exclusive collec- tive bargaining representative of its employees in the unit as described in paragraph 7:3 Richmond, Virginia Chattanooga, Tennessee Martinsville, Virginia Seaford, Delaware Kinston, North Carolina Camden, South Carolina Cooper River (Charleston), South Carolina Cape Fear (Wilmington), North Carolina Waynesboro, Virginia Respondent admits that it has refused to furnish the foregoing data, but denies that such refusal violates the Act. D. Du Pont's Operations Goldman D. Freeland, personnel superintendent at Du Pont's Old Hickory facility during the relevant time, tes- tified that on a companywide basis Du Pont employs about 65,000 production and maintenance employees at approximately 90 plants. These employees are grouped under various industrial divisions. Of these employees, some 25,000 work in the Textile Fiber Division's ap- proximately 11 plants. Freeland testified that, at the time of his February 1, 1982, retirement, the bargaining unit herein had about 1,600 employees, with approximately 400 of these working on "spunbonded" products, and with some 500 to 600 of the 1,600 performing mainte- nance. In addition to other record evidence, Respondent's 1980 annual report (G.C. Exh. 3) reflects that Du Pont manufactures a variety of chemical and plastic products 3 As the Region's June 10, 1981, letter to OHEC's attorney makes clear, the Union's request for wage data on all plants of Du Pont was found overly broad (Resp. Exh. I). The General Counsel is proceeding here, therefore, only as to rates and classifications of similarly skilled em- ployees in the nine listed plants. for apparel, home fabrics, and industrial use. At the Old Hickory facility, Du Pont manufactures "Dacron," D.M.T., an intermediate chemical used in the manufac- ture of Dacron, "Sontara," "Typar," and "Remay." Moore testified that the latter three, known as "spun- bonded" products, are manufactured exclusively in the United States by Du Pont at Old Hickory. Based on a stipulation (G.C. Exh. 5), and the undisput- ed testimony of Moore and maintenance employee Edward Escue, it is clear that at least some of Respond- ent's other textile fibers manufacturing facilities have similar steps of product manufacture which, by their very nature, require production and maintenance em- ployees to perform duties and possess skills and experi- ence which are comparable to those at Respondent's Old Hickory operation. Some of the other textile fibers plants produce Dacron, some nylon, and the Richmond, Virgin- ia, plant manufactures "Kevlar" as well as nylon. Moore toured two nylon plants (Seaford and Martins- ville) in the mid-1970's and observed that the manufac- turing process was almost identical to that for Dacron manufacturing at Old Hickory. During the same time frame, Escue toured three plants (Chattanooga, Seaford, and Martinsville) and made the same observations not only with respect to the production process but also re- specting the machinery and job functions of the employ- ees. The Chattanooga plant produces nylon and Dacron. E. Bargaining Positions At hearing, the General Counsel called two witnesses (OHEC President Ronald R. Moore and Edward Eskew, Sr.), Du Pont one witness (Goldman D. Freeland, former personnel superintendent, now retired), and OHEC none. Separate summaries, prepared by Du Pont and OHEC, of the five bargaining sessions were received in evidence by stipulation.4 OHEC's bargaining position already has been de- scribed.5 Du Pont never furnished the requested data for nonunit employees. Respondent's position at the bargain- ing table was: (I) it (meaning the Old Hickory plant) did not have the requested data,6 and (2) such data was not relevant. As to the first ground, Freeland testified that he never sought to obtain such information because it was not considered relevant. Du Pont did not consider OHEC's request relevant for the simple reason that Respondent's wage policy is to I Moore testified that OHEC did not prepare summaries of the fourth and fifth sessions. ' For example, Respondent's minutes for the third session on April 6 reflect (Resp. Exh. 8): "Council stated that they thought internal equity should be applied to the Du Pont Company on a company-wide basis; that comparable skills should be paid the same at all company locations." Respondent's own minutes, therefore, contradict Freeland's testimony that OHEC negotiators never said that they needed the information so they would know what similarly skilled employees were being paid at other plants, but instead stated they wanted the data in order to come up with a different method of wage determination. This seems to be a dis- tinction without any difference. 6 Freeland testified that he was certain that the other Textile Fibers Department plants would furnish him the wage rates and classifications of their employees if he requested the information. Freeland was not cer- tain whether Respondent's headquarters in Wilmington, Delaware, had a computer with centralized access to such data. 50 E. I. DU PONT DE NEMOURS maintain wages in the upper half of the wage scale being paid in its labor supply area, and to maintain internal equity between classifications within the unit. Because Du Pont, as Freeland testified, has always been able to hire the employees it needs for Old Hickory from the local labor force, and, based on its local pay policy, it saw no need or relevance to discuss pay rates at other Du Pont plants. Indeed, as Freeland testified, "And so, therefore, we denied the request because we were not in- terested in a policy that would deal with uniform appli- cation of wages at other plants, or earnings or ability to pay." Freeland testified that OHEC has a lot of bargaining latitude left in that there is more than a $2-per-hour dif- ference in the top rate paid by the firms in the upper half of the local pay survey. 7 Moreover, Freeland testified, OHEC can alert Du Pont whenever Respondent's pay rates get out of line with the comparison plants. Other than the foregoing, it is clear that OHEC must bargain within the pay policy (local pay comparison) observed by Du Pont. Freeland also testified, without contradic- tion, that Old Hickory's plant manager, or his designee, has the final authority to grant or deny wage increases. As the plant manager's designee for the wage negotia- tions, Freeland testified that he held such authority. As previously noted, OHEC accepted Du Pont's wage offer at the fifth bargaining session on April 20. F. Discussion and Conclusions 1. Relevance demonstrated Wage and related information on unit employees re- quested by a union is presumptively relevant to the union's representative function and must be furnished by the employer. No such presumption attaches to requests for similar data on nonunit employees, and the union must establish that the requested material bears a "rea- sonable relation to the union's role as bargaining repre- sentative." Curtiss-Wright Corporation, 145 NLRB 152, 157 (1963), enfd. 347 F.2d 61 (3d Cir. 1965). In these nonunit situations, "a special showing of pertinence" is required. Brown Newspaper Publishing Co., Inc., 238 NLRB 1334, 1337 (1978). However, once this logical, or theoretical, relevance has been shown, the union need not prove actual relevance, but may simply demonstrate a probability that the data is useful for the purpose of bar- gaining intelligently. N.L.R.B. v. Acme Industrial Co., 385 U.S. 432 (1967); Brown Newspaper, supra. In our case, I find that OHEC has shown a logical basis for needing the requested data. The data is especial- ly pertinent here because without it OHEC cannot intel- ligently formulate its desired approach to a wage policy different from that adhered to by Du Pont. Indeed, if OIIEC had such data and were able to present its pro- posal for a new wage formula, it is theoretically possible that Du Pont would agree to adopt OHEC's new ap- proach. But the parties cannot reach that bargaining stage when Du Pont will not furnish the data to begin 7At Old Hickors. Du Pont inrcludes 19 area companies in its wage surscy Morc testified that the products manufactured in these plants range from pape3r bagh to trucks. and none has the type of work that Old Hickory doc'. with. Accordingly, I find that OHEC has demonstrated the required relevance and pertinence. 2. Further issues-good faith and burden of compliance a. Goodfaith Pointing to such factors as OHEC's endorsement of the Steelworkers, and apparently the Steelworkers' goal of uniform wage rates throughout Du Pont plants sought to be represented by the Steelworkers, and the fact that for the first time to Moore's knowledge outsiders (the Steelworkers organizing director plus one of his organiz- ers) were included on OHEC's negotiating team, Re- spondent argues that OHEC did not request the data in good faith to make a more intelligent formulation of the Union's wage proposals as Moore testified, but in fact was requested solely to assist the Steelworkers in orga- nizing Du Pont's other plants. Moore testified that in the past OHEC "normally" re- quests what other sites are being paid, but Freeland counter-testified that this occasion was the first time to his knowledge that OHEC had ever requested the infor- mation. Moore testified that in the past the independent unions at the organized Du Pont plants had tried to form an organization whereby they could bargain collectively as one unit. Two or three times a year representatives of the independent unions would go to one of the other plants to meet and exchange information. Normally, Moore testified, Du Pont permitted these employee-rep- resentatives to tour the plants accompanied by Du Pont officials. Moore testified that OHEC's past requests for wage data at other sites had always been oral-and, pre- sumably, always denied. The General Counsel offered no documents, such as minutes of bargaining sessions in pre- vious years, reflecting a request such as Moore de- scribed, to support Moore's testimony. On the other hand, none was offered to show an absence of any such request. I therefore draw no inference from the lack of such documents. I credit Moore, that such requests were made in the past, but I find that such requests were never pursued by OHEC and that OHEC dropped the matter so that it never became an issue in prior negotiations. Moore testi- fied with a favorable demeanor. Although OHEC doubtlessly was, and is, interested in companywide bargaining, and under the Steelworkers banner, I find that interest to be independent of OHEC's express request here for wage data from other sites so that it could formulate a wage proposal different from Du Pont's policy of bargaining only within the frame- work of local pay comparison. I therefore find that OHEC's request was made in good faith. b. Burden of complying Respondent argues that, even if some relevance is demonstrated, "the ensuing burden in compiling the data would be grossly disproportionate to any benefit the Union would receive." Du Pont observes that the record is not precise regarding the exact jobs on which the data is requested, nor does the record show that all nine tex- 51 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tile fiber plants have employees utilizing comparable duties, skills, and processes. I reject this argument of Du Pont. OHEC has shown that the requested data could be of substantial impor- tance to it because it could very well lead to an entirely new wage pay policy. The General Counsel has estab- lished that some of the other nine textile fiber plants have similar steps of product manufacture "which by their very nature require production and maintenance employees to perform duties and possess skills and expe- rience which are comparable to those at Respondent's Old Hickory, Tennessee, plant." (G.C. Exh. 5.) As the record reflects, it is possible that Du Pont has much of the requested data stored in its computers. Respondent offered no evidence showing that the data requested was not obtainable or recoverable only at some unreasonable expense. CONCI USIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. Old Hickory Employees' Council is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All the hourly wage roll production, maintenance, and power house employees at the Respondent's Old Hickory, Tennessee Plant, Textile Fibers De- partment, including instructors, but excluding guards, firemen, fire inspectors, office, clerical, sala- ried technical, and professional employees and relief foremen who serve in that capacity either regularly or for substantial periods of time during the course of the year, and other supervisors as defined in the Act. 4. At all times since July 1945, Old Hickory Employ- ees' Council has been the exclusive representative of the employees in the unit described above for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing to furnish Old Hickory Em- ployees' Council the straight time hourly wage rates and job classifications pertaining to similarly skilled employ- ees at the below-listed plants in Du Pont's Textile Fibers Department, Respondent has violated Section 8(a)(5) and (1) of the Act: Richmond, Virginia Chattanooga, Tennessee Martinsville, Virginia Seaford, Delaware Kinston, North Carolina Camden, South Carolina Cooper River (Charleston), South Carolina Cape Fear (Wilmington), North Carolina Waynesboro, Virginia 6. The foregoing unfair labor practice affects com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Du Pont has engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that Respondent be or- dered to cease and desist therefrom and to take such af- firmative action as will effectuate the purposes of the Act.8 I deny OHEC's application for an award of attor- ney's fees. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER9 The Respondent, E. I. Du Pont de Nemours & Com- pany, Old Hickory, Tennessee, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Old Hickory Employees' Council by refusing to furnish such labor or- ganization with the straight time hourly wage rates and job classifications pertaining to similarly skilled employ- ees employed at the following plants in Du Pont's Tex- tile Fibers Department: Richmond, Virginia Chattanooga, Tennessee Martinsville, Virginia Seaford, Delaware Kinston, North Carolina Camden, South Carolina Cooper River (Charleston), South Carolina Cape Fear (Wilmington), North Carolina Waynesboro, Virginia (b) In any like or related manner refusing to bargain with Old Hickory Employees' Council. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Furnish Old Hickory Employees' Council the straight time hourly wage rates and job classifications pertaining to employees employed at the below-listed nine Du Pont plants who utilize job skills similar to those utilized by employees at Du Pont's Old Hickory, Ten- nessee, plant: Richmond, Virginia Chattanooga, Tennessee Martinsville, Virginia Seaford, Delaware Kinston, North Carolina Camden, South Carolina Cooper River (Charleston), South Carolina OHEC's April 20 acceptance of Du Pont's wage offer does not render this proceeding moot. Universal Building Services, Inc., 234 NLRB 362 (1978). Even more true here where the parties have an "evergreen" clause regarding wager in their collective-bargaining agreement. 9 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 52 E. I. DU PONT DE NEMOURS Cape Fear (Wilmington), North Carolina Waynesboro, Virginia (b) Post at its Old Hickory, Tennessee, plant signed and dated copies of the attached notice marked "Appen- dix." °0 Copies of such notice, on forms provided by the 'O In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Regional Director for Region 26, after being duly signed and dated by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof. and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other materi- al. (c) Notify the Director for Region 26, in writing, what steps Respondent has taken to comply herewith. 53