E. I. du Pont De Nemours & Co.

In the Matter of E. I. DU PONT DE NEMOURS & COMPANY and UNITED MINE WORKERS OF AMERICA, DISTRICT #50, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. C-1621.-Decided July 5, 1940 Jurisdiction : chemical products manufacturing industry. Settlement : stipulation providing for compliance with the Act. Remedial Order : entered on stipulation. Mr. Geoffrey J. Cunni f f , for the Board. Mr. C. M. Spargo, of Wilmington, Del., for the respondent. Mr. Herman Edelsberg, of New York City, for the Union. Miss Margaret M. Farmer, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Mine Workers of America, District #50, affiliated with the Congress of Industrial Organizations, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fourth Region (Philadelphia, Pennsylvania), is- sued its complaint dated May 28, 1940, against E. I. du Pont De Nemours & Company, Wilmington, Delaware, herein called the re- spondent, alleging that the respondent had engaged in and was en- .gaging in unfair labor practices affecting commerce, within the mean- ing of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by a notice of hearing, were duly served upon the respondent and upon the Union. Concerning the unfair labor practices, the complaint alleged in substance (1) that the respondent at its Paulsboro, New Jersey, plant, discouraged membership in the Union by suspending production of sulphuric acid and locking out and thereafter refusing to reemploy 25 N. L. R. B., No. 18. 153 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or to reinstate certain named employees 1 because of their member- ship in and activity in behalf of the Union; (2) that the respondent refused to bargain collectively with .the Union in respect to rates of pay, wages, hours of employment, and other conditions of employ- ment, although the Union represented a majority of the respondent's employees within an appropriate bargaining unit; (3) that by the foregoing acts, by disparaging the Union to its individual employees at its Paulsboro, New Jersey, plant, by interrogating said employees as to their membership in the Union, by urging said employees to furnish it with the names of union members, and in other ways, the respondent interfered with, restrained, and coerced its employees at said plant, in the exercise of the rights guaranteed in Section 7 of the Act. The respondent filed an answer, dated June 10, 1940, denying that it had engaged in or was engaging in the unfair labor practices alleged, and averred by way of affirmative defense that the cessation of production at the plant herein involved was necessitated by a pro- gressive decrease in the demand for sulphuric acid, the product manu- factured at said plant; that business conditions do not warrant the resumption of operations at this plant; and that many of the em- ployees named in the complaint are now employed in its other plants. Thereafter, the respondent, the Union, and counsel for the Board entered into a stipulation, dated June 13, 1940, in settlement of the case, subject to the approval of the Board. This stipulation provides as follows : - ` STIPULATION It is hereby stipulated by and between E. I. du Pont De Ne- mours -& Company, respondent herein; United Mine Work- ers of America, District #50, affiliated with the Congress of Industrial Organizations, a party herein; and Geoffrey J. Cunniff, attorney for the National Labor Relations Board, that : 1. Upon charges duly filed by United Mine Workers of America, District #50, affiliated with the Congress of Indus- trial Organizations, the National Labor Relations Board, by the Regional Director for the Fourth Region, acting pursuant to authority granted in Section 10 (b) of the National Labor Re- lations Act (49 Stat. 449) and its Rules and Regulations, Series 2, as amended, Article IV, Section 1, issued its Complaint con- 1 The names of these employees , as listed in Schedule A of the complaint , are James Lloyd, Hairy Eastlack, Walter Rishell. Lewis Trout, Clarence Orr, Earl Reed, Ernest Bun- dens, Rudolph Hartshorn, Angelo Ginipro, Thomas Trout, IIoward Gwinn, Daniel Kelly, W C Burr, John Hampton, John Dengler, John Segar, John Cables, James Gray , Frederick Freas, William Gray, Robert Miller, Frank Lloyd, Frank Bellum. E. I. DU PONT DE NEMOURS & COMPANY 155 taining a Notice of Hearing on the 28th day of May, 1940, against E. I. du Pont De Nemours & Company. II. The Respondent, E. I. du Pont De Nemours & Company, is and has been since on or about September 4, 1915, a corpora- tion organized and existing by virtue of the laws of the State of Delaware, with its principal offices in City of Wilmington, State of Delaware. III. The respondent is engaged in the manufacture, sale and distribution of various products and as part if its business, owns and operates plants and places of business in approximately seventy-eight localities, situated in twenty-seven states of the United States. IV. The respondent is now and has continuously for a long period of time past, been authorized to do business in the State of New Jersey, having-one of its offices and places of business in the Town of Paulsboro, State of New Jersey, and is now and has been continuously for a long time past, engaged at its place of business in the Town of Paulsboro, State of New Jersey, hereinafter called the Paulsboro plant, in the manufacture, sale and distribution of chemical products, including sulphuric acid and strontium nitrate. V. The respondent, in the course and conduct of its busi- ness at its Paulsboro plant, causes, and at all times herein men- tioned, has continuously caused large quantities of raw materials used by it in the manufacture, sale and distribution of its chemical products to be shipped and transported in interstate commerce from and through States of the United States other than the State of New Jersey, to its Paulsboro plant in the State of New Jersey, and causes and has continuously caused large quantities of chemical products manufactured by it to be shipped in interstate commerce from its Paulsboro plant in the State of New Jersey, to, into and through States of the United States other than the State of New Jersey, and to foreign countries. VI. The respondent is engaged in interstate commerce within the meaning of the Act, the decisions of the Board, and the decisions of the Supreme Court of the United States. VII. The United Mine Workers of America, District #50, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2, subdivision (5) of the National Labor Relations Act. VIII. This stipulation, together with the pleadings, and a commerce stipulation attached hereto and marked "A" and made a part hereof may be introduced as evidence by filing them with 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Chief Trial Examiner of the National Labor Relations Board, Washington; D. C., designated by said Board. IX. The taking of testimony or the 'submission of further evidence before a Trial Examiner in this matter , the making of findings of fact, and conclusions by the Board, pursuant to the provisions of the National Labor Relations Act, are hereby expressly waived by the parties herein, and the Board 's Order, as herein provided , shall have the same force and effect as if made after a full hearing , presentation of evidence , and the making of findings thereon. X. Upon this stipulation, Exhibit "A" and the pleadings, if approved by the National Labor Relations Board , an Order may forthwith be entered by the Board providing as follows : Respondent, E. I. du Pont De Nemours & Company, and its officers, agents , successors , and assigns, shall 1. Cease and desist from : (a) In any manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join , or assist labor organizations , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act; (b) Discouraging membership in United Mine Workers of America, District #50, affiliated with the Congress of Industrial Organizations, or any other labor organizations of their em- ployees by discharging or in any other manner discriminating against their employees in regard to hire or tenure of employ- ment, or any condition of employment of any of their employees by reason of said employees' membership in the United Mine Workers of America, District #50, affiliated with the Congress of Industrial Organizations, or any other labor organization of their employees. 2. Take the following affirmative action in order to effectuate the policies of the Act : (a) Immediately offer reinstatement and, upon acceptance of such offer, reinstate to their former positions , without loss of seniority and without prejudice to any rights and privileges previously enjoyed by them, the following employees: James Lloyd Harry Eastlack Walter Rishell Lewis Trout Clarence Orr Earl Reed Ernest Bundens Rudolph Harshorn Angelo Ginipro Thomas Trout Howard Gwinn Daniel Kelly E. I. DU PONT DE NEMOURS & COMPANY 157 W. C. Burr Frederick Freas John Hampton William Gray John Dengler Robert Miller John Segar Frank Lloyd John Gables Frank Bellum James Gray (b) Make whole the employees named in paragraph 2 (a) above for any loss of pay they may have suffered by reason of the respondent's acts by payment to each of them of a sum of money equal to that which each would normally have earned as wages during the period from the date of the termination of employ- ment of each to the date of the respondent 's offer of reinstate- ment, less the net earnings of each during that period ; (c) Inform all of its officers , agents, and representatives that they shall not threaten employees in any manner because of their membership in any labor organization in general , or the United Mine Workers of America, District # 50, affiliated with the Con- gress of Industrial Organizations , in particular; (d) Post immediately in conspicuous places at its Paulsboro, New Jersey, plant and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in para- graphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b) and (c) of this Order; and (3) that the respondent's employees are free to become or remain members of United Mine Workers of America, District #50, affiliated with the Congress of Indus- trial Organizations, or any other labor organization , and the respondent will not discriminate against any employees because of membership or activity in that organization , or any other such organization; (e) Notify the Regional Director for the Fourth Region, in writing, within ten (10 ) days from the date of the Order of the National Labor Relations Board, what steps have been taken to comply therewith. XI. It is further stipulated and agreed that the Complaint may be dismissed insofar as it alleges that the respondent failed to bargain collectively with the United Mine Workers of America, District #50, affiliated with the Congress of Industrial Organizations, as the representative of the employees in the appropriate unit on matters of wages, hours and conditions of employment. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD XII. It is further stipulated that the true and correct name of the respondent is E. I. du Pont De Nemours & Company. Wherever in the pleadings the respondent is designated by any other name the said pleadings shall be amended so as to conform to the true and correct name. XIII. It is further stipulated and agreed that this stipula- tion is subject to the approval of the National Labor Relations Board. XIV. This stipulation contains the entire agreement of the parties, and there is no verbal agreement of any kind which varies, alters, or modifies this stipulation. cc A» STIPULATION-THE BUSINESS OF THE COMPANY It is hereby stipulated and agreed by and between C. M. Spargo, Esq., attorney for E. I. du Pont De Nemours & Com- pany, hereinafter referred to as the respondent, and Geoffrey J. Cunniff, Esq., attorney for the National Labor Relations Board, that : 1. The respondent is and has been at all times since January 1, 1917, a corporation organized under and existing by virtue of the laws of the State of Delaware, and has at all times since said date, authorized to do business in the State of New Jersey, having one of its offices and places of business in the Town of Paulsboro, County of Gloucester, State of New Jersey, and is now and has been continuously at all times since the year 1917, engaged at the place of business in the Town of Paulsboro, County of Gloucester, State of New Jersey, hereinafter called the Paulsboro plant, in the manufacture and distribution of chemical products, including sulphuric acid and strontium nitrate. Said chemical products are sold through respondent's principal office located in Wilmington, Delaware. 2. The respondent, in the course and conduct of its business, as hereinafter set forth, causes and has continuously caused raw and other materials used in the manufacture of its products to be purchased and transported in interstate commerce from and through States of the United States other than the State of New Jersey to the Paulsboro plant, in the State of New Jersey, and as hereinafter set forth, causes and has continuously caused the products manufactured by it at the Paulsboro plant to be sold and transported in interstate commerce from the Paulsboro plant, E. I. DU,PONT,. DE, NEMOURS,& COMPANY 159 in the State of New Jersey, to, into, and through States of the United States other than the State of New Jersey. 3. The principal materials which the respondent uses in the manufacture of its products at the Paulsboro plant are : Brim- stone, Celestite and Nitric Acid. The total cost of all materials used by the respondent in the manufacture of its products at the Paulsboro plant for the period from January 1, 1939, to December 31, 1939, was in excess of $300,000.00. During the said period the respondent purchased in excess of 80% of all materials used by it in the manufacture of its products at the Paulsboro plant in States of the United States other thaia the State of New Jersey, principally in the States of Texas and West Virginia, Celestite being purchased in England; and in the course and conduct of its business the respondent causes and has continuously caused 'since January 1, 1917, in excess of 50% of all materials used by it in the man- ufacture of its products at the Paulsboro plant to be transported in interstate commerce from States of the United States other than the State of New Jersey, to the Paulsboro plant in the State of New Jersey. The principal means of transportation to the Paulsboro plant is by rail and water. 4. The principal products manufactured by the respondent at the Paulsboro plant are set forth in paragraph 1, above. The value of all products produced by the respondent at the Paulsboro plant from the period from January 1, 1939, to December 31, 1939, was in excess of $500,000.00. During the said period the respondent caused to be transported in excess of 50% of all products produced by it from the Paulsboro plant, in the State of New Jersey, to States of the United States other than the State of New Jersey, principally the States of Virginia. Massachusetts and Delaware; and in the course and conduct of its business the respondent causes and has continuously caused since January 1, 1917 in excess of 50% of all products produced by it at the Paulsboro plant to be transported in interstate com- merce from the Paulsboro plant in the State of New Jersey to purchasers in States of the United States other than the State of New Jersey and to other of the respondent's plants in States of the United States other than the State of New Jersey. The principal means of transportation from the Paulsboro plant is by rail and water. 5. As an integral part of its business the respondent owns and operates plants and places of business in about seventy-eight localities in twenty-seven States. 160 E. I. DU PONT DE NEMOURS & COMPANY 6. The respondent maintains and operates sales offices for the sale of its products produced at its Paulsboro plant at the fol- lowing locations, among others : Boston, Massachusetts Chicago, Illinois Cincinnati, Ohio Cleveland, Ohio Detroit, Michigan New York, N. Y. Philadelphia, Pa. Pittsburgh, Pa. 7. The respondent is engaged in interstate commerce within the meaning of the National Labor Relations Act. 8. Neither the respondent nor the National Labor Relations Board is precluded from proving or introducing evidence as to other or additional facts relative to matters herein contained. On June 18, 1940, the Board issued an order approving the above stipulation, making it a part of the record in the case, and trans- ' ferring the proceedings to the Board for the purpose of entry of a decision and order pursuant to the provisions of the stipulation. Upon the above stipulation and the entire record' in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, E. I. du Pont De Nemours & Company, a Dela- ware corporation with its principal office in Wilmington, Delaware, is engaged in the manufacture, sale, and distribution of a wide variety of products. It owns and operates places of business and plants in approximately 78 localities situated in 27 States of the United States. The instant proceeding is concerned solely with the operation of the respondent's plant at Paulsboro, New Jersey, where it is engaged in the manufacture, sale, and distribution of chemical products, including sulphuric acid and strontium nitrate. During the calendar year of 1939, the respondent used materials in the manu- facture of said products to the value of more than $300,000.00, more than 80 per cent of which were purchased in States other than New Jersey. The value of the products manufactured by the respondent at its Paulsboro plant during this period was in excess of $500,000.00. More than 50 per cent of these products were shipped from said plant to States other than New Jersey. _ We find that the above-described operations constitute a continuous flow of trade, traffic, and commerce among the several States. 'E. T. DU PONT DE' NEMOURS & COMPANY 161 H. THE ORGANIZATION INVOLVED United Mine Workers of America, District #50, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the National Labor Relations Act. ORDER Upon the basis of the above findings of fact, the above stipulation, and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, E. I. du Pont De Nemours & Company, Wilmington, Delaware, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) In any manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective, bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act; (b) Discouraging membership in United Mine Workers of Amer- ica, District #50, affiliated with the Congress of Industrial Organi- zations, or any other labor organizations of their employees by discharging or . in any other manner discriminating against their employees in regard to hire or tenure of employment, or any condi- tion of employment of any of their employees by reason of said employees' membership in the United Mine Workers of America, District #50, affiliated with the Congress of Industrial Organiza- tions, or any other labor organization of their employees. 2. Take the following affirmative action in order to effectuate the policies of the Act : (a) Immediately offer reinstatement and, upon acceptance of such offer, reinstate to their former positions, without loss of seniority and without prejudice to any rights and privileges previously en- joyed by them, the following employees : James Lloyd Harry Eastlack Walter Rishell Lewis Trout Clarence Orr Earl Reed Ernest Bundens Rudolph Hartshorn 2 Angelo Ginipro Thomas Trout Howard Gwinn Daniel Kelly 2 Referred to in the stipulation as Rudolph Harshorn. 162 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD W. C. Burr Frederick Freas John Hampton William Gray John Dengler Robert Miller John Segar Frank Lloyd John Gables - Frank Bellum James Gray (b) Make whole the employees named in paragraph 2 (a) above for any loss of pay they may have suffered by reason of the re- spondent's acts by payment to each of them of a sum of money equal to that which each would normally have earned as wages during the period from the date of, the termination of employment of each - to the date of the respondent's offer of reinstatement, less the net earnings 3 of each during that period; (c) Inform all of its officers, agents, and representatives that they shall not threaten employees in any manner because of their mem- bership in any labor organization in general, or the United Mine Workers of America, District #50, affiliated with the Congress of Industrial Organizations, in particular; (d) Post immediately in conspicuous places at its Paulsboro, New Jersey, plant and maintain for a period of at least sixty (60) con- secutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3) that the respondent's employees are free to become or remain members of United Mine Workers of America, District #50, af- filiated with the Congress of Industrial Organizations, or any other labor organization, and the respondent will not discriminate against any employees because of membership or activity in that organiza- tion, or any other such organization ; (e) Notify the Regional Director for the Fourth Region in writing within ten (10) days from- the' date of the Order of the National Labor Relations Board, what steps have been taken to comply therewith. 9 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Sawmill Workers Union, Local 2590, 8 N.-L. R. B. 440 Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects are not considered as earnings, but shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects. Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L R B 219, enforced in N L. R B v Republic Steel Corp, 107 F. (2d) 472 (C. C. A. 3d), cert granted May 20, 1940. E. I. DU PONT DE NEMOURS & COMPANY 163 AND IT IS FURTHER ORDERED that the complaint , in so far as it alleges that the respondent refused to bargain collectively with the United Mine Workers of America, District #50, affiliated with the Congress of Industrial Organizations , as the representative of its employees at its Paulsboro, New Jersey, plant, be, and, it hereby is, dismissed. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.