E. I. du Pont & Co.

National Labor Relations Board - Board Decisions

Feb 24, 1984

268 N.L.R.B. 1075 (N.L.R.B. 1984)

E. I. DU PONT & CO.
E. I. duPont de Nemours & Company and DuPont
Newport Union. Case 4-CA-13417
24 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 12 September 1983 Administrative Law
Judge Thomas D. Johnston issued the attached de-
cision. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The Union has represented a unit of employees
at the Company's Newport, Delaware plant for ap-
proximately 30 years. The parties' most recent col-
lective-bargaining agreement expired in 1974. After
the agreement terminated, the parties negotiated on
individual subjects as the need arose and agreed on
certain changes from the terms of the contract. In
other respects, the parties continued to honor the
contractual terms. Several attempts to negotiate a
new agreement foundered, but negotiations began
again in 1981. Active negotiations encompassed 14
months (excluding a 5-month hiatus pending a
Board representation proceeding) and 47 sessions.
The parties bargained on an issue-by-issue basis
rather than beginning with overall contract propos-
als. In May 1982, at the 30th bargaining session, the
Company raised the issue of job movement-that
is, the eligibility of employees to transfer to an-
other job. Under the existing practice, which sur-
vived the expiration of the contract, an employee
could bid on any available job, as often as he or
she desired, and be awarded such job on the basis
of seniority and ability. Within 30 days the Compa-
ny could accept the bidder permanently for the
new job or return him or her to the old job. Within
10 days on the new job, the employee could elect
to return to the old job. The employee was free, in
any event, to bid immediately on another job.
The Company indicated that the unlimited avail-
ability of job movement created serious training
problems and reduced overall plant efficiency. At
the next bargaining session, the Company set forth
a general proposal on job movement. The gist of
the proposal was that any employee accepted for a
permanent job would not be eligible for another
268 NLRB No. 161
permanent job, except a promotion, for 12 months.
A discussion followed in which some further ex-
ceptions were allowed, but the Company took the
position that the 12-month restriction covered any
employee who exercised the 10-day return privi-
lege. The Union's initial counterproposal on job
movement was that the existing practice be contin-
ued, unchanged.
As described more fully in the judge's decision,
the parties continued to negotiate on job move-
ment, along with other subjects, during 17 bargain-
ing sessions before the Company implemented its
latest proposal. In the course of these sessions some
accommodations were made on each side, but the
Company remained firm in its proposed 12-month
restriction on most lateral job transfers and its posi-
tion that exercise of the 10-day trial period was the
equivalent of a transfer. The negotiations during
these 17 sessions focused largely on job movement
and the Company made it clear that it regarded im-
plementation of a job movement restriction as a
matter of the highest priority. On its part, the
Union indicated that the job movement proposal
was one of the main items preventing an agree-
ment. The Union put forth counterproposals that
accepted some limitation on job movement. It indi-
cated, however (although the precise words used
are in dispute and were not resolved by the judge),
that it might continue to make counterproposals
but would never accede to the Company's position.
Although other contract terms were still open, the
Company concluded that there was no prospect of
reaching an agreement due to the deadlock over
job movement. Thus, after informing the Union
that it intended to do so, the Company implement-
ed its proposal without the Union's agreement.
There is no question but that the Respondent
unilaterally instituted the job movement proposal
which had been offered to and rejected by the
Union. The issue before us, then, is whether the
parties had bargained to an impasse at the time the
Respondent acted. For if impasse had been
reached, the Respondent was free to implement its
pre-impasse proposal. Taft Broadcasting Co., 163
NLRB 475, 478 (1967), petition for review denied
395 F.2d 622 (D.C. Cir. 1968). The Board has de-
fined impasse as a state of bargaining at which the
party asserting its existence is warranted in assum-
ing that further bargaining would be futile. Alsey
Refractories Co., 215 NLRB 785 fn. 1 (1974); Pat-
rick & Co., 248 NLRB 390, 393 (1980). More spe-
cifically, we continue to follow the guidelines set
forth in Taft Broadcasting, above, in determining
the existence of an impasse:
1075
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whether a bargaining impasse exists is a
matter of judgment. The bargaining history,
the good faith of the parties in negotiations,
the length of the negotiations, the importance
of the issue or issues as to which there is dis-
agreement, the contemporaneous understand-
ing of the parties as to the state of negotiations
are all relevant factors to be considered in de-
ciding whether an impasse in bargaining exist-
ed.
Finally, there need be no undue reluctance to find
that an impasse existed. Its occurrence "cannot be
said to be an unexpected, unforeseen, or unusual
event in the process of negotiations since no experi-
enced negotiator arrives at the bargaining table
with absolute confidence that all of his proposals
will be readily and completely accepted." Hi-Way
Billboards, 206 NLRB 22, 23 (1973).
The judge found that impasse had not been
reached. He noted that, despite the extent and
length of the negotiations, important subjects other
than job movement, such as wages, were still open.
The judge noted also that the Union continued to
make substantive counterproposals on job move-
ment until the end, while the Company was ada-
mant. We disagree with his analysis. The length on
negotiations is, of course, noteworthy and, consid-
ering the number of sessions at which this subject
was discussed, indicates that the parties had ex-
hausted the realistic possibility of reaching agree-
ment. The Company's firmness, which no one
claims to have constituted bad-faith bargaining,
militates toward rather than against a finding of im-
passe, especially in light of the Union's indication
that it would not accept the Company's proposal.
See Seattle-First National Bank, 267 NLRB 142
(1983); Times Herald Printing Co., 221 NLRB 225,
229 (1975). As for the existence of other open sub-
jects, the Union gave no indication that it would
concede on job movement in return for a favorable
trade-off in another area or otherwise that its posi-
tions on this and other matters were interchange-
able. Moreover, the subject of job movement had
become of central importance to the parties by the
time the Company acted. Because of the overriding
importance of the issue, and because after long,
hard negotiations the parties were still not close to
reaching agreement on critical aspects of the job
movement question, a finding of impasse is war-
ranted irrespective of whether there was some
movement in the parties' positions prior to the Re-
spondent's implementation of its proposal, or
whether the deadlock was produced by differences
either on one or on many significant issues. Taft
Broadcasting, above.
Clearly, the parties had adequate opportunity to
discuss their differences by the time the Company
acted. The Company negotiated long, hard, and in
good faith over job movement, and gave the
Union, in full, the bargaining opportunity to which
it was entitled under the Act. Eddie's Chop House,
165 NLRB 861, 863 (1967). We find that the Com-
pany bargained to impasse before implementing its
proposal and therefore did not violate Section
8(a)(5) as alleged. Accordingly, we shall dismiss
the complaint.
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge:
This case was heard at Wilmington, Delaware, on June
6, 1983,1 pursuant to a charge filed on December 20,
1982, by DuPont Newport Union (herein referred to as
the Union) and a complaint issued on February 3.
The complaint alleges that E. I. du Pont de Nemours
& Company (herein referred to as the Respondent)
changed the working conditions of its unit employees by
instituting a change in its rules concerning "job move-
ment" at its Newport, Delaware plant without having af-
forded the Union an opportunity to negotiate and bar-
gain as the exclusive representative of the Respondent's
employees with respect to such change thereby failing
and refusing to bargain collectively with the Union in
violation of Section 8(a)(l) and (5) of the Act.
The Respondent in its answer dated February 3 denies
having violated the Act as alleged.
The issue involved is whether the Respondent unlaw-
fully refused to bargain with the Union in violation of
Section 8(a)(5) and (1) of the Act by unilaterally, with-
out affording the Union the opportunity to negotiate and
bargain, instituting a change in its rules concerning "job
movement" of its unit employees at the plant.
Upon the entire record in this case and from my obser-
vations of the witnesses and after due consideration of
the briefs filed by the General Counsel and the Respond-
ent, I make the following2
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation with facili-
ties located in the State of Delaware and other States of
the United States, including a plant located at Newport,
Delaware, is engaged in the manufacture of chemicals
and related products.
All dates referred to are in 1983 unless otherwise stated.
a Unless otherwise indicated the findings are based on the pleadings
admissions, stipulations, and undisputed evidence contained in the record
which I credit.
1076
E. I. DU PONT & CO.
During the 12-month period preceding February 3 the
Respondent in the course of its operations shipped
goods, valued in excess of $50,000, from its Delaware fa-
cilities directly to customers located in other States of
the United States.
The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
DuPont Newport Union is a labor organization within
the meaning of Section 2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES
A. Background and the Bargaining Unit
The Respondent is engaged in the manufacture of
chemicals and related products and operates a plant lo-
cated at Newport, Delaware (herein referred to as the
plant), which is the only plant involved in this proceed-
ing.
On December 21, 1981, the Union was certified by the
National Labor Relations Board (herein referred to as
the Board) as the exclusive bargaining representative of
the employees in the following described unit which is a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All employees employed by the Employer at its
Newport, Delaware plant; excluding salary roll em-
ployees exempt under the provisions of the Fair
Labor Standards Act, temporary or part-time em-
ployees, watchmen, secretaries to the plant manag-
er, manufacturing manager and plant technical su-
perintendent, clerical employees in the employee re-
lations department, plant nurses, guards and super-
visors as defined in the Act.
The Union has been and is now the certified and ex-
clusive representative of the aforesaid unit employees for
the purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
For approximately 30 years including both before and
after its certification in 1981 the Union has represented
the Respondent's unit employees at the plant. The last
written collective-bargaining agreement between the Re-
spondent and the Union covering the unit employees was
executed by the parties on March 27, 1973, and was ef-
fective by its terms until March 31, 1974. Although it
contained automatic renewal provision from year to year
thereafter unless notice to terminate was given where-
upon the agreement would terminate on the expiration
date of the contract term in which notice was given, the
Union on January 14, 1974, gave the Respondent timely
written notice of its desire to terminate the collective-
bargaining agreement.
During a meeting held on March 28, 1974, between
representatives of the Respondent and the Union, the Re-
spondent informed the Union that the collective-bargain-
ing agreement would terminate on March 31, 1974, but
as in the past the Respondent would not change "the
terms and conditions of the current contract or other
policies and practices which are now in effect unless
changes are made following completion of our bargain-
ing obligation." The Respondent further informed the
Union it had no objection to operating without a con-
tract as a contract was not necessary for good relation-
ships betweem them or for continued treatment of em-
ployees.
Since the expiration of the collective-bargaining agree-
ment in 1974 the terms and conditions of the agreement
have with certain changes, which were negotiated and
agreed to by the parties, continued in effect. However,
no new collective-bargaining agreement has been execut-
ed. One change in the agreement was also made by the
Respondent and implemented after negotiations over this
one subject without agreement by the Union. This
change as described by Gerald Ferguson, who is present-
ly the supervisor of employee relations at the Glenolder
Laboratory,s and as reflected in a letter to the Union
dated November 1, 1979, dealt with temporary supervi-
sors.
Before the most recent negotiations for a new collec-
tive-bargaining agreement which began on May 12, 1981,
several attempts were made by the parties to negotiate a
new collective-bargaining agreement. However, because
of problems involving the ground rules for negotiations
these attempts were unsuccessful.
Under article VIII, section 10 of the old collective-
bargaining agreement job vacancies and new jobs are
posted and bid on by the employees. Under section 11 if
a successful applicant does not perform satisfactorily on
a new job during a trial period of 30 workdays or less or
who decides not to continue the job during the first 10
workdays or less he would go back to his former job.
Section 3 provides that factors considered in transfers,
promotions, demotions, terminations because of lack of
work, and reemployment of former employees are se-
niority, ability, skill, efficiency, knowledge and training,
and physical fitness.
The job movement procedure which was in effect at
the plant prior to January 9 as credibly described, with-
out dispute, by John Empson, who was an employee of
the Respondent and served as a negotiator for the Union,
was that as jobs became available they were posted and
each employee had the opportunity to bid on them and
the jobs were awarded based on seniority and qualifica-
tions. There was no limit on the number of times an em-
ployee could move to other jobs. The employees had a
10-day trial period to accept the job and if they rejected
the job during that period they returned to their old job
and the Respondent also had 30 days to accept them in
the new job or they also were returned to their old job.
B. Negotiations and the Unilateral Change in the Job
Movement Procedure
The most recent negotiations between the Respondent
and the Union for a new collective-bargaining agreement
lasted from May 12, 1981, until January 6. This consisted
of 47 different meetings which varied in length from ap-
proximately 17 minutes to 3-1/2 hours.
3 Prior to assuming this position on February 1, Ferguson was the
senior supervisor of employee relations at the plant.
1077
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first negotiation meeting was held on May 12,
1981. Besides a discussion of the ground rules for negoti-
ations the Respondent noted its objective was to update
the old collective-bargaining agreement and address ad-
ditional items in need of refinement such as the job
movement procedure. The Union's position was since the
old agreement had expired such a long time ago and to
use it as a guide would be difficult that both parties
should start from scratch. The Union indicated it would
negotiate on a section-by-section basis rather than submit
a complete proposal for a new contract and requested
that the Respondent submit a list of those articles it
wanted placed in the contract.
The next meeting was held on May 14, 1981, at which
there was further discussion concerning the ground rules
for negotiations.
At the next meeting held on May 26, 1981, the Re-
spondent indicated the existing article topics in the old
agreement were adequate and it did not propose adding
any additional articles in the new contract but felt the
old agreement needed updating to reflect the current
benefits and procedures. The Union submitted a list of
titles only of proposed articles4 it wanted included in the
new agreement. This list was discussed and the Union in-
dicated it would submit proposals for each of these 26
articles.
During the June 3, 1981 meeting the Union submitted
its proposals on discipline, arbitration, and discharge
which were discussed along with the grievance proce-
dure. The Respondent agreed to consider the Union's
proposal and respond at the next meeting.
At the June 10, 1981 meeting the Union's proposals
made at the previous meeting were discussed and the Re-
spondent presented its position. However, no agreement
was reached on those proposals. The Respondent also re-
quested to see all of the Union's demands for an agree-
ment claiming it was not possible to make a decision
without first seeing them while the Union's position was
it felt each section should be discussed and tentatively
agreed on before going to other sections. The Union also
requested the Respondent to make a contract proposal
which request the Respondent agreed to consider.
During the next meeting held on June 18, 1981, the
Union outlined its general demands for the various arti-
cles it wanted included in the new agreement. The
Union's proposals on arbitration and discipline were also
discussed but no agreement was reached. The Union also
informed the Respondent it wanted a 2-year agreement
with some of the Union's proposals being phased in over
the length of the agreement.
The next meeting was held on June 23, 1981. The Re-
spondent went over the old agreement article by article
indicating those changes which had occurred since 1974.
The Union then requested that the Respondent provide it
with counterproposals to its previous proposals where-
upon the Respondent replied it was still reviewing them
and had questions which would require clarification.
Upon the Union's asking verification of certain items, the
Respondent informed it that would be discussed at a
future meeting. The Respondent, pursuant to the Union's
4 The old agreement only had 16 articles.
s The old agreement did not contain an article on discipline,
request, promised to provide it with a copy of the Re-
spondent's discipline procedure at the next meeting.
During the June 25, 1981 meeting the Respondent fur-
nished the Union with a copy of its discipline procedure
which it said was in the process of being revised and in-
formed the Union it was interested in its input. This pro-
cedure and the Union's proposal on discipline were dis-
cussed with each party stating their positions and objec-
tions. However, no agreement was reached. The Union
then requested the Respondent to furnish it with certain
information about the old agreement.
On July 7, 1981, the Respondent at this meeting fur-
nished the Union with copies of its revised proposal for a
new grievance procedure which the Union indicated
seemed acceptable and would be submitted to the mem-
bership on July 15 for ratification. This procedure and its
implementation, if adopted, were also discussed and the
Union requested clarification on one section. The Union
also submitted its counterproposal on a discipline proce-
dure for the Respondent to consider.
During the July 17, 1981 meeting the Union informed
the Respondent that the membership had voted and ap-
proved of the new grievance procedure proposed by the
Respondent at the prior meeting which was subsequently
confirmed by a letter from the Union to the Respondent
dated August 6, 1981. The implementation of this proce-
dure as it applied to pending grievances was also dis-
cussed and it was announced that the new procedure
would be put into effect on August 1, 1981.
At the next meeting held on July 23, 1981, various
matters were discussed including medical verification of
1-day disability absences, sixth-day payment of split days
of vacation, the number of hours worked to obtain a
meal allowance, and clarification of the bump-up rule.
The Union's proposal on discipline was also discussed.
The Respondent, unlike the Union, did not want a writ-
ten record of verbal or informal contacts in the discipline
procedure or a system involving fixed steps without con-
sidering the severity of the circumstance, the person's
record, and other factors and informed the Union it
would provide it with a revised procedure and solicit
their comments. The Respondent, pursuant to the
Union's inquiry regarding the arbitration and discharge
proposals, advised the Union it was still considering the
Union's proposal for a single arbitrator but it had no fur-
ther comments to make on the discharge proposal.
During the July 28, 1981, meeting the Respondent re-
sponded to several of the Union's prior proposals. On ar-
bitration it rejected the Union's proposal to use only one
instead of three arbitrators as presently existed on the
grounds the present system had worked very well in the
past. Upon the Union's mentioning the need to speed up
the processing of arbitration cases and to reduce costs,
the Respondent suggested consideration should be given
to establishing a time limitation between the last step of
grievance and arbitration. On the Union's proposal re-
garding backpay for terminated employees to be reinstat-
ed after an arbitration hearing while the Respondent felt
the current 60-day limit warranted further discussion it
was opposed to unlimited backpay, as insisted on by the
Union, on the grounds that uncontrollable variables are
1078
E. 1. DU PONT & CO.
involved in arbitration timing. With respect to the
Union's proposal on the discipline procedure the Re-
spondent's position was to maintain the present formal
three-step discipline procedure and informed the Union
the discipline procedure was being revised and would
later be presented to the Union but would not be put
into the new agreement. The new procedure would take
into account those concerns previously expressed by the
Union. Also discussed during this meeting were issues
raised earlier relating to the sixth-day overtime allow-
ance, medical verification of disability days, and meal al-
lowances with the Respondent promising to respond
later.
The next meeting was held on August 4, 1981. How-
ever, the parties agreed at that time to suspend negotia-
tions because of a representation petition pending before
the Board regarding various sites operated by the Re-
spondent including the plant. The Respondent did
answer questions previously raised by the Union regard-
ing the interpretation of provisions of the old agreement
relating to medical verification of disability, meal allow-
ances, apd sixth-day payment for split days of vacation.
On December 16, 1981 the Union, by letter, requested
the Respondent to reopen contract talks.
Bargaining resumed at a meeting held on February 10,
1982. The Union requested the Respondent to present its
contract proposals. However, the Respondent replied it
was not possible for it to do so until a list of union de-
mands were received and reminded the Union it had pre-
viously agreed to do so. The Union then presented the
Respondent with a list of 21 articles for contract negotia-
tions. Included among those articles on the list which
were discussed with the Union explaining or giving its
reasons for wanting them were those relating to job as-
signments, bereavement pay, jury duty, health care, mon-
etary seniority, outside contractors, safety, union activi-
ties, temporary supervisor, and fire brigade. The Re-
spondent advised the Union it would consider such re-
quests and later discuss them.
According to Union Negotiator Empson another union
proposal on pension of "30 years and out regardless of
age" which it also wanted spelled out in the contract
was discussed briefly and rejected by the Respondent.
Under the current pension plan, which the Respondent
felt was adequate, benefits are not spelled out in the old
agreement and an employee is penalized 5 percent for
each year he retires under the age of 58.
Those matters discussed at the next meeting held on
February 12, 1982, included the alcohol program; the fire
brigade, whose function is to contain fires until the out-
side fire company arrives; and the safety committee.
However, no agreement was reached on these proposals.
This meeting had begun by the Respondent stating it was
necessary to discuss the Union's list of contract demands
presented at the last meeting in order to get clarification
and justification from the Union along with the Respond-
ent's response.
During the February 16, 1982, meeting the fire brigade
was discussed with the Respondent informing the Union
that its request for additional firefighting training was
being given further consideration, but it rejected the
Union's request for a volunteer fire brigade as well as
hazardous duty pay for the fire brigade. The Respondent
also rejected the Union's request to appoint union mem-
bers to the plant management safety committee and acci-
dent investigation committee and to include language in
the contract that employees are not required to work
unsafe. Also discussed was the safety concern slip and
the safety program and the Respondent explained the
pay and the seniority credits for jury duty after pointing
out that the Union had a misconception about it.
Another meeting was held on February 19, 1982, at
which there was further discussion about the fire brigade
and safety without any agreement being reached. The
Union's request for a 5-percent and 10-percent shift dif-
ferential was discussed with the Respondent indicating it
would conduct a survey of local comparison companies
and discuss it at the next meeting. On jury duty the
Union's position was it wanted clarification of the proce-
dure and to extend pay provisions to include those per-
sons who received subpoenas to appear in court which
request the Respondent agreed to consider. On funeral
allowance the Union wanted the current policy expanded
to 5 days and to additionally include stepparents, step-
children and other relatives as noted in its proposal. The
proposal was discussed but no agreement was reached.
On meal allowance the Union proposed increasing it to
$4.50 during the first contract year and to $5 the second
year which the Respondent stated it would consider after
reviewing the food cost in the cafeteria.
During the February 23, 1982, meeting the Respond-
ent rejected the Union's proposal to place a safety state-
ment in the contract and after providing the Union with
a comparison of shift differentials with other area compa-
nies it rejected the increase in shift differential proposed
by the Union and stated it would not offer a counterpro-
posal on it. The Respondent informed the Union that no
decision had been reached on an increase in the meal al-
lowance and it had no further comment at that time on
the Union's bereavement pay proposal. The Union ex-
plained under its holiday proposal it wanted two extra
holidays including one as a personal holiday and the
other one as Martin Luther King's birthday as well as a
change in the selection procedure for personal holidays.
The Respondent rejected the request for the two addi-
tional holidays but indicated it would investigate improv-
ing the procedure. The Union's proposal for removing
the difference between nonexempt salary and wage roll
service eligibility for a 1-week vacation was rejected. On
lunch and rest periods the Union wanted a guaranteed
rest period in the morning and afternoon and a paid 30-
minute lunch period and that shift operators who were
required to work through their eating time to be released
earlier at the shift's end. Working hour guidelines were
also discussed which the Union wanted suspended until a
new procedure was negotiated which was rejected by
the Respondent.
During this meeting the Union expressed its desire to
stop negotiations until the Respondent presented its pro-
posal on the issues already discussed. However, the Re-
spondent's position was that such a proposal by the Re-
spondent would not be appropriate until it understood
1079
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union's February 10, 1982 demands by clarification
obtained at these meetings.
The next meeting was held on March 16, 1982, at
which there was further discussion about the differences
between nonexempt salary and wage roll service eligibil-
ity for a 1-week vacation, jury duty, and liberalizing per-
sonal holidays. On jury duty the Respondent proposed to
excuse an employee with pay who had been subpoenaed
as requested by the Union but only under certain condi-
tions. The Union's response was the Respondent's coun-
terproposal on this would be discussed and voted on at
its March 17 union meeting. On liberalizing personal
holidays the Union proposed changes in the guidelines
which were discussed with the Respondent voicing its
objections.
During the March 18, 1982, meeting the Union ac-
knowledged a tentative agreement on the Respondent's
proposal for payment of a subpoenaed witness and prom-
ised a formal answer later. The Union also made a pro-
posal for a lunch break for employees called in to work
overtime, explained their proposal on clothing to be fur-
nished by the Respondent, and requested that a plant
laundry be established to wash all clothes since washing
them at home was unsafe. The Respondent's position was
the safety policies and procedures they had were ade-
quate safeguards for employees working with chemicals
and this included safe cleanup and protection.
The next meeting was held on March 23, 1982. The
Union again brought up its request concerning the 1-
week vacation during the first year of employment for
wage roll employees with the Respondent taking the po-
sition it would not change the current service require-
ment or change the vacation plan. The Respondent re-
jected the Union's request to physically include in the
new contract the Respondent's proposal on payment of
subpoenaed witnesses since it said this was an administra-
tive procedure but promised that any future changes on
it would be discussed with the Union. Clothing was dis-
cussed and the Respondent furnished a revision of its
clothing policy and made a proposal on safety shoes.
The Union also discussed its proposal concerning union
activities. The Respondent rejected the Union's request
to pay the union president for not working or to expand
the maximum number of representatives to attend meet-
ings with pay or to pay representatives to attend meet-
ings on their off time. Outside contractors were dis-
cussed and while the Union wanted its president notified
of such jobs the Repondent's position was to continue
notifying the area representative as was presently being
done instead.
Another meeting was held on March 25, 1982, at
which various items were discussed. The Respondent re-
jected the Union's request to increase the number of
union representatives authorized to attend plant informa-
tion meetings and advised that under the current agree-
ment up to 23 representatives would be released with
pay to attend provided they could be spared from their
work group. The Respondent rejected a union proposal
to pay representatives for attending off-duty meetings
beneficial to both parties. On the use of outside contrac-
tors the Respondent promised to further consider the
Union's request that the union president be notified.
Clothing and safety shoe proposals were discussed which
the Respondent indicated it was willing to implement on
April 1, if the Union agreed. The Union promised to
consider that proposal at its March 31 union meeting.
Regarding the discipline procedure the Respondent
stated it was being revised and when completed it would
be discussed with the Union. With respect to the Union's
earlier request for full backpay for a discharged employ-
ee returning to work following arbitration the Respond-
ent was agreeable to extending the current 60-day provi-
sion on backpay but rejected unlimited backpay because
cases drag on. The parties disputed whether there was
presently a 180-day limit on temporary upgrades to su-
pervisor as the Respondent contended and the Union re-
quested information to support it. On the proposal relat-
ing to industrial relations plans and practices the Re-
spondent agreed to include the dental assistance plan and
the total and permanent disability income plan in the
contract listing of industrial relations plans and practices
but rejected inclusion of TRASOP or tuition refund plan
in the list as sought by the Union. The Union added
these additional items to their demands: "one-half day
single days of vacation with sufficient notice; holiday
worked have choice of 3-1/2 times pay or 2-1/2 times
pay and another day off as a personal holiday; inconven-
ience pay-when area shutdown over a holiday and em-
ployees are required to work on a normal day off to
obtain 40 hours of work in a week; and provide 4 weeks
of V/S with 10 years of service." The Respondent's po-
sition was it would not provide additional pay items
above the current practices and would not change the
current pension plan to provide retirement at 30 years re-
gardless of age.
During the March 31, 1982, meeting the Respondent
furnished the Union with its written proposal on the pro-
cedure for payment of a subpoenaed witness whereupon
the Union asked that an additional guideline it proposed
be added which the Respondent agreed to consider. The
Union then requested the Respondent's position on cer-
tain items previously discussed. On proposed holiday
payment and the lunch and rest periods the Respondent
said they were still being considered. Regarding the one-
half single days of vacation and inconvenience pay the
Respondent rejected both of them. The Respondent
stated it would be willing to notify the union president
regarding outside contractor's work as the Union had
proposed and would provide a written response. Safety
shoes were also discussed with the Respondent agreeing
to provide payment for safety shoe heel inserts and heel
spacers when required for physical reasons and to see
about discounts for shoe purchases at the Lehigh Stores.
A meeting was held on April 16, 1982. The Respond-
ent informed the Union it was still looking into the
Union's clothing request and during a discussion about
shoes mentioned that discounts were available at the
Lehigh Stores. The Respondent also agreed to consider
the Union's request to stock some rubber boots. On per-
sonal holidays the Respondent stated it was willing to
specify that selection of personal holidays be made on a
first-come first-served basis and submitted a copy of the
modified guidelines. The Respondent refused to change
1080
E. I. DU PONT & CO.
the last selection date for personal holidays to November
25, to pay time and half for Sunday-personal holidays, or
to allow employees to cash in personal holidays. It in-
formed the Union it was willing to permit volunteers
within areas to replace employees on the fire brigade and
submitted a proposal but would not agree to send em-
ployees to the Delaware Fire School because they had a
qualified trainer at the plant. The Respondent agreed to
consider a request by the Union to change shifts for
someone called to be a witness. On temporary supervi-
sors the Respondent distributed language regarding them
and, after questions were raised about their use by the
Union, the Union promised to respond later. Regarding
outside contractors the Respondent said it was still de-
veloping wording on it. On safety the Union raised cer-
tain objections to the safety concern program and pro-
posed new slips and a time limit for the correction of the
concerns. The Union also made other proposals includ-
ing that when employees are assigned to open jobs for
medical reasons the employees would keep their own
rates of pay; all people performing at upgraded jobs
ought to be paid at the top rate of these jobs; and the
Union wanted to have more input on studies regarding
the establishment of pay rates. It also wanted language
put in the contract about the agreed-upon limit on over-
time for people on light duty.
During a meeting held on April 23, 1982, there were
further discussions about the proposals on the fire bri-
gade, subpoenaed witnesses, safety concern slips, and
shoes and clothing. The Respondent agreed to the
Union's request to reissue the personal holiday guidelines
to reflect scheduling on a first-come first-served basis.
The Union also explained its demands on job classifica-
tions, job posting, vision care,6 prescription drugs, Blue
Cross-Blus Shield coverage, A & H Insurance, and
dental insurance and it wanted increases in those existing
various medical and insurance benefits. According to
Union Negotiator Empson the Respondent's response
was it thought their extended benefits were adequate and
they did not need anything else.
The next meeting was held on April 27, 1982. After
the Respondent furnished the Union with a copy of the
plant safety manual, open items were discussed including
job postings, rubber boots, subpoena policy, clothing and
shoe policy, and safety concern. Other items from the
Union's list of demands were then discussed. On the lim-
ited light duty pertaining to overtime the Union request-
ed the current plant procedure be included in the con-
tract. On its proposal for a service allowance of 10 cents
per hour for every 5 years of company service, which
the Union claimed would encourage employees to stay
with the Company, the Respondent pointed out the exist-
ing benefits such as pension, vacation, and service
emblem recognized and rewarded employee service. On
company service and plant service the Respondent
agreed to consider the Union's request to change the
service rules so that employees who quit and later re-
turned to work would have to work 10 years instead of 1
year before they could receive credit for their previous
service. On job movement the Union requested that the
6 The Respondent at that time had no vision care benefits.
current plant practice for change in schedules be includ-
ed in the contract. On the Union's request for a 25-year
anniversary dinner to be provided for each employee and
a small group of their friends with dinners being held
each 5 years thereafter or money provided instead, the
Respondent pointed out that the Quarter Century Club
had a dinner for all employees with 25 years or more of
service. When the Union mentioned it had established a
safety committee and requested regular meetings with
the Respondent to negotiate safety rule changes, the Re-
spondent indicated the Union's request was being re-
viewed. The Union also requested that a new contract
include items agreed to during negotiations and the lan-
guage changes requested by the Union during the negoti-
ation meetings held in May.
During the April 30, 1982 meeting the Respondent
made a reply proposal to the Union's proposal to reduce
the number of CPC operators assigned to the fire bri-
gade. Also discussed were items from previous meetings
including job postings, plant service, single days of vaca-
tion for Sunday, personal holidays, safety concern, post-
poned holiday allowance, lunchtime for call in, union
safety committee, clothing, and bereavement pay. The
Union on vacation carryover additionally requested that
the current vacation banking be changed to allow unlim-
ited accumulation of vacation in the bank. No agreement
was reached on these proposals many of which the Re-
spondent indicated it was still considering.
The Respondent indicated at this meeting it would
present its contract proposal the week of May 10.
The next meeting was held on May 28, 1982. The Re-
spondent after mentioning that current business condi-
tions dictated the need to improve overall plant efficien-
cy informed the Union it felt there was a demanding ne-
cessity to discuss changes to the plant job movement
sytem or procedure which it said created a real training
problem and reduced overall plant efficiency prior to
making its contract proposal. Although the Respondent
stated it had no definite detail proposal to make at the
time it mentioned certain points which were discussed
and information was furnished that the Respondent sup-
ported plantwide bidding for all promotional opportuni-
ties; it did not propose eliminating the 10-day trial
period; and it saw a need to restrict movement to lateral
or lower-rated jobs to reduce training and improve plant
efficiency. It defined promotional opportunity as a move
to a higher pay rate or a move to a job at the same rate
or lower rate but with the opportunity to advance to a
higher rate through the job's progression system. Other
discussions were a person who moved laterally or down-
ward would have to wait a year before moving again; on
movement to preferred jobs such as daywork an employ-
ee who had a laterally type movement would have to
wait the prescribed time before moving again; on limits
for movement to new jobs the rules would not be
waived for jobs created through force additions or by
adding jobs similar to current existing plant jobs but the
rule would be waived for new jobs which were not simi-
lar to current jobs; and bumping would not be included
as part of the job movement change.
1081
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent also presented the Union with its pro-
posal on the procedure for union notification of outside
contractors.
Another meeting was held on June 1, 1981. The Re-
spondent presented the Union with a list of its ideas for
changing the existing job movement procedures. They
were continued current posting practices; all employees
may bid on open jobs; and employees accepted for a per-
manent job would not be accepted for another perma-
nent job for a period of 12 months unless the job was a
promotion or unless there were no other acceptable bids.
Certain items on job movement was then discussed. The
Union indicated the moves which resulted in preferred
assignments such as daywork should be considered a
promotion even though there was no rate increase and
restricting nonpromotional moves would be too restric-
tive to mechanical personnel since most of them were at
the senior mechanic level. The Respondent also informed
the Union that bumping or involuntary moves would not
be included in the restriction of one move in a 12-month
period. Pursuant to the Union's inquiry the Respondent
defined a "new job" as a job which had not existed prior
to its posting which it explained to mean that a new op-
erator position created in one of the manufacturing areas
or a job at an existing operator level changed to reflect
new work practices but it did not include forced addi-
tions or increasing the number of existing jobs in a
group. The Union objected to this definition. While the
Respondent said it did not oppose any changes in the 10-
day trial period it said a person accepting a job and then
utilizing the 10-day trial period would have one job ac-
ceptance counted against his record for movement
within the 12-month period to which the Union also
voiced its objections.
The Union's position was the job movement discussion
should also include upgrading, reclassification, and con-
sideration of operating jobs in the plant which the Re-
spondent stated it was not ready to discuss.
Other matters besides the job movement procedure
were also discussed. On the length of the contract the
Respondent wanted an "evergreen" contract which it de-
scribed as one that continues in effect indefinitely unless
either party gives notice to cancel it. Open items dis-
cussed again were the number of Sundays allowed in
split vacation weeks; postponed holidays; lunch breaks
on call-ins; union safety committee; fire brigade; outside
contractors; and A & H Insurance.
The Respondent rejected the Union's request to allow
the union safety committee to meet with pay during
working hours to discuss safety and rule changes but of-
fered to meet on an as-needed basis. It also rejected the
Union's request to change the A & H Insurance payouts.
The Union also proposed employees be granted I-day's
pay or I day off with pay for each year or perfect at-
tendance beginning in 1983.
The next meeting was held on June 11, 1982. The Re-
spondent presented the Union with its contract proposals
which were then discussed. Items to be included besides
those in the expired agreement were all of those that had
been bargained and agreed to since 1974 when the old
contract expired plus several new items in response to
the Union's requests and a revision to the job movement
procedure. These proposals were as follows: Add that in
lieu of holiday pay allowance for a holiday worked, an
employee may select another day off subject to holiday
selection guidelines; allow shift workers to observe Sat-
urday holidays on Saturday; change the Washington's
birthday holiday to the day after Thanksgiving; include
the two personal holidays currently in effect; add spouse
of son or daughter to death in family allowance for max-
imum of 8 hours; increase meal ticket from $3.50 to
$4.50; revise job movement procedure-employees may
bid on any open job. However, employees who have bid
and been accepted for a permanent job will not be ac-
cepted for another permanent job for 12 months unless
the job is a promotion or there are no other acceptable
bids; include current shift differential of 35 cents an hour
and 55 cents an hour; include hospital and medical-sur-
gical coverage currently provided; include the dental as-
sistance plan and permanent disability income plan with
the list of industrial relations plans and practices; include
offset provision on payments of severance pay for serv-
ice over 4 years when reemployed from zero to 48
months; include new grievance procedure; increase back-
pay limit for employees reinstated following discharge
from 60 calendar days to 270 calendar days; add a 45-
day time limit for the Union to notify management of its
decision to arbitrate a discharge; discontinue union dues
reductions when an employee is promoted to temporary
or permanent supervisor; change the maximum yearly
temporary supervisor upgrade time from 180 to 120 days
in the calendar year; provide up to 22 bulletin boards for
union posting; and prove an "evergreen" contract which
continues indefinitely and allows negotiated improve-
ments or updating at anytime and termination by either
party with 60-day notice.
Many of these items were currently in effect at the
time this offer was made including some of which had
been put into effect prior to the beginning of negotiations
in 1981. The Respondent also presented a list of minor
word changes to update the old agreement and several
items which were outside of the contract but under con-
sideration by the Union. Those included a liberalized
safety shoe policy; a procedure to provide payment for
subpoenaed witnesses; a liberalized clerical detail proce-
dure; a procedure for allowing volunteers on the fire bri-
gade prior to filling open positions on an assigned basis;
and a procedure to inform the Union about outside con-
tractors.
The Respondent also made a proposal outside of the
contract dealing with revising the policy regarding short
vacation days on Sundays which the Union accepted. On
the Union's proposal for an extra day off for perfect at-
tendance the Respondent denied it.
After the Respondent mentioned this offer was fair
and reasonable and contained those changes it was will-
ing to make at that time the Union stated it would dis-
cuss it with its counsel and its membership.
The Respondent's records reflect that on July 9, 1982,
the Union informed the Respondent that the Respond-
ent's March 1982 proposal on a new safety shoe allow-
ance had been accepted by the Union and that the Re-
1082
E. I. DU PONT & CO.
spondent at the Union's request had initiated the policy
effective July 19, 1982.
During the July 1, 1982, meeting medical insurance
and its coverage of employees including that under a
Health Maintenance Organization (herein referred to as
HMO) and the fire brigade were discussed. The Union
also informed the Respondent it would give its response
to their contract offer after the next union meeting but
said it was disappointed at the Respondent's proposal
and felt there was nothing new included. The Respond-
ent mentioned a number of changes were included and
the Union should not overlook the fact liberalization had
continued over the years even though the contract had
expired. The Respondent further informed the Union
that the job movement proposal was a very important
part of its contract offer which it considered an absolute
necessity for the future and requested the Union to seri-
ously consider it.
The next meeting was held on July 13, 1982. The Re-
spondent after reviewing the prior negotiation meetings
and proposals regarding the fire brigade questioned the
Union about whether it had a response to the Respond-
ent's proposal. After the Union replied it had no re-
sponse and that it must take it to the union membership,
the Respondent withdrew its proposal and informed the
Union the fire brigade would continue as it was but that
the total will be reduced from 13 to 12 members. It also
informed the Union it was always willing to consider
and discuss the Union's proposal on the fire brigade.
Another meeting was held on August 10, 1982, at
which those items outside of the contract, which had
been proposed by the Respondent on June 11, including
the liberalized safety shoe policy; clerical detail policy;
payment procedure for subpoenaed witnesses; and out-
side contractors were discussed. On outside contractors
the Respondent presented a procedure for notification
and a notification form. At this meeting a modified noti-
fication form was agreed upon by the parties.
The Respondent's contract proposals were also dis-
cussed with the Union's stating it was unhappy and that
the proposal did not address its needs. The Union also
contended the language in the former contract was no
good and the book should be thrown out while the Re-
spondent's position was the terms and conditions of the
expired agreement were still being followed and were
working effectively. On job movement the Union object-
ed to the 12-month restriction for lateral and downward
moves proposed and stated the job movement proposal
could not be accepted by the Union. The Respondent
claimed it was necessary to improve efficiency. The
Union also objected to the mechanics being included in
the 12-month restriction. The Union then counterpro-
posed to continue the current job movement procedure.
According to Union Negotiator Empson their objections
to the Respondent's proposal on job movement were
they already had unlimited moves whereas the Respond-
ent's proposal would limit them to one movement every
12 months and the only move the most senior employees
had was a lateral move and the Union felt the Respond-
ent was trying to take their rights away. The Respondent
defended its contract proposal and stated it included sev-
eral items requested by the Union but that it could not
agree to other terms requested by the Union. During the
meeting the Union also raised questions about the fire
brigade training.
Another meeting was held on August 23, 1982. The
Respondent informed the Union that effective September
I the vacation plan for wage roll employees would be
modified in two ways and furnished the Union with a
copy of the change. These modifications were pointed
out and discussed with the Union's raising various ques-
tions about the changes.
The Respondent rejected the Union's proposal to leave
the job movement procedure as it was stating it was firm
on the 12-month period which the Union objected to. It
did agree, as suggested by the Union, to reconsider its
position on preferred assignments and that they be ex-
cluded from limitations on job movement. The Union
after a caucus counterproposed that job movement be
limited to six moves within a 3-year period which the
Respondent agreed to consider but indicated it probably
would not be acceptable.
Union Negotiator Empson testified a preferred assign-
ment was usually a daywork assignment which a shift
worker had a chance to get and that under the Respond-
ent's proposal if a person moved into a preferred job this
would be counted as a move.
The next meeting was held on September 9, 1982. The
Respondent denied the Union's earlier request to expand
single days of vacation to include one-half days. It also
rejected the Union's counterproposal that job movements
be limited to six moves within a 3-year period because it
would provide too much job movement and the Re-
spondent's objective was to reduce training and plant
transfers. The Respondent again asked the Union to con-
sider its complete contract offer and distributed copies
and reviewed each item. On job movement it stated it
had reviewed the Union's concern about employees
being involuntarily moved from daywork to shift work
and was willing to clarify the situation by adding further
definitions. This proposal provided that involuntary
movement from daywork to shift work would not count
as a job move and employees within a bid group who
were involuntarily moved from daywork to shift work
would have any job movement restriction eliminated
which would prevent them from being accepted for an-
other plant job. Further employees who had been noti-
fied their job was being eliminated and who bid out prior
to being bumped would not have that job movement
counted as a move under the procedure. The Respondent
rejected the Union's request to change its proposal to
provide for no restrictions on movement to preferred
jobs.
During the meeting the Respondent also rejected the
Union's request on other clothing changes such as under-
wear, sweatshirts, and styled jeans.
Another meeting was held on September 28, 1982. The
Respondent in response to a union request for a short
length-type jacket made offers to the Union regarding
furnishing jackets which were then discussed. The Union
advised that a vote would be held on the clothing pro-
posal on September 29 and that the Respondent would
be notified of the outcome. The Union also made a coun-
1083
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terproposal on job movement for three moves in 2 years
and the removal of the 10-day trial restrictions as count-
ing as a job move and stated it would agree to the pro-
posal if the Respondent would agree that temporary up-
grades to supervisor is a job movement and would be up-
graded for a 12-month period. The Respondent indicated
it would respond to this proposal at the next meeting.
The Respondent's records reflect that on September
20, 1982, the Union accepted the Respondent's proposal
on jackets and that this was implemented effective Octo-
ber 1, 1982.
The next meeting was held on October 7, 1982. The
Respondent rejected the Union's counterproposal on job
movement made at the previous meeting. After review-
ing the prior negotiating meetings it then submitted a
proposal containing the following items, which had been
included as part of its original proposal on June 11,
1982, 7 and stated it was willing to put them into effect
immediately: In lieu of holiday allowance pay for a holi-
day worked, an employee may select another day off
subject to holiday selection guidelines; allow shift work-
ers to observe Saturday holidays on Saturday; change
the holiday for Washington's birthday to the day after
Thanksgiving; add spouse of son or daughter to death in
family allowance for maximum of 8 hours; increase meal
ticket from $3.50 to $4.50; and revise job movement pro-
cedure-employees may bid on any open job. However,
an employee who has bid and been accepted for a per-
manent job will not be accepted for another permanent
job for 12 months unless the job is a promotion or there
are no other acceptable bids; increase the backpay limit
for employees reinstated following discharge from 60
calendar days to 270 calendar days; add a 45-day time
limit for the Union to notify management of its decision
to arbitrate a discharge; and change the maximum yearly
temporary supervisor upgrade time from 180 to 120 days
in the calendar year.
Pursuant to the Union's inquiry the Respondent stated
the "evergreen" provision which still apply as part of its
proposal but explained that the above items being offered
were not dependent on a signed contract and there was
no point in including a length of contract provision. The
Union indicated the proposal which would have to be
approved by the membership looked acceptable except
for the job movement proposal and it renewed it prior
objections to that proposal. The Respondent informed
the Union it did not intend to stop negotiations on some
of those items if the Union rejected them and advised the
Union it would continue as it had in the past to follow
the terms of the expired agreement.
According to Donald Kafka, who is the employer re-
lations superintendent for the plant and served as a nego-
tiator for the Respondent, up until that time there had
been about 40 negotiation meetings and he felt they were
still far apart on getting an agreement which was the
reason for this offer.
During a meeting held on October 12, 1982, the Union
in response to questions by the Respondent about imple-
menting several items proposed by the Respondent stated
I These were the only items among the 17 items on the Respondent's
original proposal made on June 11, 1982, which had not already been im-
plemented.
it was willing to accept the Respondent's proposal to in-
crease the meal allowance from $3.50 to $4.50 and to
change the funeral allowance provision by adding the
spouse of son or daughter to the death in family allow-
ance for a maximum of up to 8 hours and it would vote
on the other proposals at an October 10, 1982 member-
ship meeting.
According to Union Negotiator Empson the union
membership voted and agreed to accept the Respond-
ent's proposal offered on October 7, 1982, and to have
them implemented except for those items regarding job
movement and the change in the holiday for Washing-
ton's birthday, both of which proposals they rejected.
The next meeting was held on October 28, 1982. The
Union informed the Respondent it had previously ac-
cepted the Respondent's proposal for an increase in the
meal allowance from $3.50 to $4.50 and adding the
spouse of son or daughter to the death in the family al-
lowance for a maximum of up to 8 hours and at the last
union meeting the other proposals were voted on and ac-
cepted by the Union except for the change in Washing-
ton's birthday and the job movement procedure provi-
sion. The Respondent pointed out the rejection to
change Washington's birthday meant the plant would
follow the procedure contained in the expired agreement.
The reasons given by the Union for rejecting the job
movement procedure was because employees could now
bid on any number of jobs with unlimited job movement
and because the Respondent had refused to accept any
changes to its job movement proposal which the Re-
spondent disputed by pointing out several changes were
proposed to its original proposal.
During the meeting the Union mentioned the job
movement proposal and the contract language in the old
agreement were the main items keeping them from sign-
ing the agreement and stated that the 10-day trial period
should not be counted as a move in the job movement
proposal.
The minutes of this meeting prepared by the Respond-
ent which were not approved by the Union also reflect
that the Union said, "if Management expects to imple-
ment this proposal at impasse then the Union will contin-
ually make counterproposals in an effort to block imple-
mentation." While both the Respondent's negotiators,
Ferguson and Kafka, claimed the Union made such state-
ment, Union Negotiator Empson denied it was said. In-
stead his explanation of what was said was they men-
tioned the Union could continue to submit counterpro-
posals for the next 5 years and if management was not
willing to take him serious and bargain with them they
could never reach the agreement the Respondent wanted
them to.8
Pursuant to the Union's request the Respondent, which
reiterated the importance of its job movement proposal,
agreed to funish information to the Union about the
amount of job movement in the past.
I Even assuming such statement was made by the Union as alleged it
was only directed at attempting to block implementation if an impasse
was reached and the evidence reveals the Union's counterproposals made
during negotiations on the job movement procedure were concessions on
its parts rather than mere efforts to delay negotiations.
1084
E. 1. DU PONT & CO.
The next meeting we held on November 17, 1982.
Those items discussed included Washington's birthday
and the guidelines for the postponed holiday allowance
and the Union submitted a proposal on holiday pay. The
Respondent also furnished the Union with information
on past job movements in the plant. The Union again re-
quested that the 10-day trial period not be counted as a
job movement and counterproposed on job movement as
follow: Two moves in I year; first 10-day trial not count-
ed as a move; second 10-day trial counted as a move re-
gardless of job acceptance or not; and all moves to su-
·pervision to permanent. This counterproposal was reject-
ed by the Respondent whereupon the Union mentioned
the Respondent had not accepted any proposed changes
on job movement and accused the Respondent of refus-
ing to bargain and also stated the discussion was dead-
locked and could continue over the next 5 years by the
Union continuing to make counterproposals. The Re-
spondent responded by saying it would not continue dis-
cussions for the next 5 years and it would have to put
the proposal into effect. The Union then mentioned that
it might have to file a charge with the Board to stop the
Respondent from implementing the proposal. Upon being
asked by the Union whether it was willing to have a me-
diator for future job movement discussions and whether
it was planning on implementing the job movement pro-
cedure at impasse the Respondent said it saw no reason
for a mediator and felt the job movement proposal must
be put into effect soon but promised to consider the
Union's questions and to respond.
Another meeting was held on November 24, 1982. The
Respondent rejected the Union's prior request for a me-
diator for job movement discussions. It stated in response
the Union's inquiry about whether it planned to imple-
ment the job movement proposal at impasse that it was
planning to bargain the proposal on job movement to an
agreement and was optimistic about reaching an agree-
ment with plans to put the procedure into effect on Janu-
ary 1, 1983. The Union renewed its request for informa-
tion concerning the prior use of job movement which
was then discussed. The Respondent repeated the proce-
dure must be changed because of the present movement
and the potential of unlimited movement and training.
Objections were repeated by the Union to the job move-
ment proposal and it stated it would continue to object if
the Respondent maintained its position with the Re-
spondent accusing the Union of raising objections to pre-
vent putting the proposal into effect. The Respondent in-
dicated it remained willing to sign its agreement as pro-
posed but felt the job movement proposal must be put
into effect and emphasized it would continue to follow
the expired agreement. The Union renewed its objection
that it would not sign an agreement with the contract
language remaining the same. During this meeting the
meal allowance procedure and the guidelines for holding
negotiation meetings were also discussed.
On December 1, 1982, a meeting was held. Items relat-
ing to a rate increase in the insurance rates and the
scheduling of grievances were discussed. Accusations
were also made by the Union that the Respondent was
not bargaining in good faith and was breaking the law
and it mentioned filing a charge with the Board if the
job movement proposal was implemented. While the
minutes of this meeting prepared by the Respondent but
not approved by the Union reflect the Union also men-
tioned shutting down part of the operations if the job
proposal was implemented the Union at the next meeting
denied having said it.
The minutes also reflect that the Union continued to
say it would keep making counterproposals to block the
Respondent's implementation of the job movement pro-
posal which statement had previously been denied by the
Union.
The next meeting was held on December 14, 1982, at
which the Union's request for information concerning
the prior use of job movement was discussed with the
Respondent furnishing certain information and pointing
out that other information requested was not maintained.
The Respondent again stated it hoped the Union would
agree to put the job movement proposal into effect on
January 1. However, the Union objected and wanted an-
swers to some more questions. There was also a discus-
sion at the meeting about minutes kept by the Respond-
ent of these meetings.
On December 16, 1982, a meeting was held and after
the Respondent had informed the Union as requested
how its job movement proposal would be administered
the Union offered the following counterproposal on job
movement: All employees may exercise seniority to bid
on any open jobs; employees who have bid and been ac-
cepted for a permanent job will not be considered for an-
other permanent job for a period of 12 months following
the date of acceptance unless the job is a promotion or
there are no other acceptable bids; a promotion is de-
fined as an increase in an employee's straight time rate of
pay or a job which allows employees a progression rate
job or a preferred assignment (day or relief) job; an em-
ployee can utilize the 10-day trial one time in 12 months,
not to count as a move but the second time to constitute
a job movement and not be allowed to bid another per-
manent job for 12 months from that date; and limitations
on job movement would be waived when "new jobs" are
posted. A "new job" is defined as a job that did not pre-
viously exist in the area or in the plant. Increasing the
number of existing jobs in a work group would not be
considered a "new job"; involuntary movement such as
bumping would not count as a move under the job
movement system; and involuntary move from daywork
to shift work would not count as a job move. In addition
employees within a bid group who were involuntarily
moved from day to shift work would have any job
movement restrictions eliminated which would prevent
them from being accepted for another plant job; manage-
ment initiated moves-for jobs that are eliminated-the
employee who bids out prior to being bumped would not
have that job movement counted as a tabulation under
the move procedure; and as incentive for giving up flexi-
ble unlimited job movement-management would agree
to pay 10 cents an hour monetary seniority for every 2
years to people who stay in their present jobs, or who
have stayed in their present jobs, plus all other previous-
ly agreed-to wages and, if an employee had previously
held a job and does not need to be trained, would not
1085
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
count as a job movement. The Respondent agreed to
study this proposal and the Union also stated there were
other contract items it wanted to negotiate and referred
to the fire brigade and fire school.
The Respondent's records reflect that on December
20, 1982, the Respondent's negotiator, Ferguson, met
with two union negotiators regarding clarification of the
job movement proposal made by the Union on Decem-
ber 16. However, after reviewing the proposal he ex-
plained to them that the Respondent's position was clear
that it was not willing to provide extra compensation for
seniority on a job and he believed some training was re-
quired in all plant jobs.
Another meeting was held on December 21, 1982. The
meeting opened with the Respondent's mentioning two
minor changes to the pension and retirement plan effec-
tive January 1, 1983. The Respondent in response to
those new provisions of the Union's counterproposal on
job movement made at the December 16, 1982 meeting
informed the Union it would not accept the proposed
payment of 10 cents per hour for seniority, unlimited
movement to jobs previously held if no training was in-
volved, or the first 10-day trial period not to be counted
as a move. On preferred assignment being considered as
a promotion it indicated it was willing to include pre-
ferred assignment which would be defined as movement
from shift work to a posted day or day/relief job as a
promotion.
The Union also requested that the definition of pre-
ferred assignment cover senior employees bidding on
jobs posted as subject to shift that included one or more
daywork jobs which the Respondent rejected.
The Respondent then presented the Union with its up-
dated summary of its job movement proposal and stated
they were hoping to reach an agreement and implement
the proposal on January 1. This proposal was as follows:
Employees may bid on any open job. However, employ-
ees who have bid and been accepted for a permanent job
will not be accepted for another permanent job for 12
months unless the job is a promotion or there are no
other acceptable bids. Under this proposal and listed
under the term "definitions" were the following: Internal
moves within a job group are not covered; involuntary
movement will not count as a move; movement from
daywork to shift work will not count as a job move and
employees within a bid group who are involuntarily
moved from day to shift work would have any job
movement restriction eliminated which would prevent
them from being accepted for another plant job; employ-
ees who had been notified their job is being eliminated
and who bid out prior to being bumped would not have
that job movement count as a tabulated move under the
procedure; bumping moves are considered involuntary
moves; a promotion is defined as an increase in an em-
ployee's straight-time rate, a job which allows the em-
ployee to progress to a higher straight-time rate based on
a progression system or movement to shift work to a
posted day or day/relief job; and limitations on job
movement would be waived when "new jobs" are posted
and a "new job" is defined as a job that did not previ-
ously exist in the area or in the plant and increasing the
number of existing jobs in a work group would not be
considered a "new job."
The next meeting was held on December 30, 1982.
Following discussion about the Union's December 16,
1982 proposal on job movement and about what changes
the Respondent had made in its original proposal the
Union asked the Respondent what it planned to do
whereupon the Respondent said it planned to implement
the job movement proposal on January I and hoped the
Union would agree to it. Following a caucus the Union
added the following two additional items to its counter-
proposal on job movement: Allow a banking of one
move for every 3 years a person is in a job without
moving to be added to the one move per year a person
could take within a 12-month period; and give a 10-day
trial period for every 6 months-not to count as a job
movement. The Respondent rejected this proposal on the
grounds the Union was still asking for more moves than
the Respondent's proposal allowed and stated the job
movement must be limited as proposed by the Respond-
ent for the good of the plant. Pursuant to the Union's
questions the Respondent informed the Union that nei-
ther temporarily upgrading an employee to supervision
nor bringing him back to wage roll counted as a move.
The Union informed the Respondent it wanted to dis-
cuss other things at these meetings and requested propos-
als from the Respondent at the next meeting on the fire
brigade and a wage offer. 9
The last negotiation meeting was held on January 6.
At this meeting the Respondent furnished the Union
with a copy of its same proposal on job movement given
to the Union at the December 21, 1982, meeting and in-
formed the Union there were no changes in the proce-
dure; however, it included the last change discussed with
the Union about movement to a preferred job. The Re-
spondent then informed the Union over the Union's ob-
jections that it was putting the Respondent's job move-
ment proposal into effect on January 9, 1983.
Upon the Union's asking the Respondent whether it
had a proposal on the fire brigade the Respondent indi-
cated it was only prepared at that time to discuss job
movement.
The Respondent's job movement proposal was imple-
mented on January 9 without the agreement of the
Union. The Respondent's negotiator, Kafka, testified that
the procedure was implemented because the Respondent
felt it had been discussed thoroughly and it incorporated
a number of things that had been agreed upon; the need
to make efficiencies because of economic problems; the
Union's proposals were just reiterating its position and
trying to block implementation; and it could see no value
of having more meetings or any prospect of getting an
agreement on it.
Those changes from its original proposal in the job
movement procedure as described by Kafka were: a
person involuntarily moved from day to shift work
would get the job movement slate wiped clean; a person
moved from shift work to a posted day or relief job or
preferred job would be counted as a promotion and not
9 Prior to this time there had been no discussion of wages.
1086
E. 1. DU PONT & CO.
as a job move; and a management initiated move where a
person after being notified he would be bumped from his
job bid on another job before being bumped would not
count as a move.
C. Analysis and Conclusions
The General Counsel's position is that the Respondent
unlawfully refused to bargain with the Union in violation
of Section 8(aXl) and (5) of the Act by unilaterally,
without affording the Union the opportunity to negotiate
and bargain, instituting a change in its rules concerning
job movement of unit employees at the Plant. The Re-
spondent denies such contentions and asserts as a defense
that an impasse had been reached in negotiations at the
time the job movement procedure was changed.
Section 8(aXl1) of the Act prohibits an employer from
interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7
of the Act. Section 8(aX5) of the Act prohibits an em-
ployer from refusing to bargain collectively with the rep-
resentative of its employees.
The law is well settled that an employer violates Sec-
tion 8(aX5) and (1) of the Act when during the course of
negotiations with its employees' bargaining representa-
tive, and at a time no impasse exists, it institutes unilater-
al changes in the terms and conditions of employment of
its unit employees. NLRB v. Katz, 369 U.S. 736 (1962).
This is true even where the Union has been afforded
notice and an opportunity to bargain about such change.
Winn-Dixie Stores, 243 NLRB 972 (1979). Neither eco-
nomic expediency nor sound business considerations are
sufficient defenses to justify unilateral changes in terms
and conditions of employment. Van Dorn Plastic Machin-
ery Co., 265 NLRB 864 (1982).
For an impasse to be found in negotiations the parties
must have reached "that point of time in negotiations
when the parties are warranted in assuming that further
bargaining would be futile." The Old Man's Home of
Philadelphia, 265 NLRB 1632 (1982); and Patrick & Co.,
248 NLRB 390, 393 (1980), enfd. mem. 644 F.2d 889 (9th
Cir. 1981). Those factors to be considered in determining
whether a bargaining impasse exists, which is a matter of
judgment, include the bargaining history, good faith of
the parties in negotiations, length of negotiations, the im-
portance of issues to which there is disagreement, and
the contemporaneous understanding of the parties as to
the state of negotiations. Taft Broadcasting Co., 163
NLRB 475, 478 (1967), enfd. 395 F.2d 622 (D.C. Cir.
1968).
The findings supra establish that during negotiations
between the Respondent and the Union for a new collec-
tive-bargaining agreement covering the unit employees
the Respondent on January 9, over the Union's objec-
tions, unilaterally changed the existing job movement
procedure at the plant by putting into effect its own pro-
posal on the job movement procedure which had been
discussed with but had not been agreed to by the Union.
The new job movement procedure, with certain limited
exceptions, prohibits employees who have bid on and
been accepted for a permanent job from being accepted
for another permanent job for 12 months unless the job
was a promotion or there were no other acceptable bids.
This was a substantial change in the existing terms and
conditions of employment of the unit employees who up
until that time had no limit on the number of times they
could move to other jobs. Under the terms of the old
collective-bargaining agreement which the parties had
continued to abide by since its expiration in 1974 job va-
cancies were posted and bid on by the employees and
were awarded on the basis of such factors as seniority,
ability, skill, efficiency, knowledge and training, and
physical fitness. Those applicants selected were given a
30-day trial period and if they did not perform satisfacto-
rily they were returned to their old jobs and employees
could also elect on their own during the first 10 days on
their new jobs to return to their old jobs.
Regarding the impasse defense raised by the Respond-
ent an examination of the evidence pertaining to those
factors considered by the Board in determining whether
an impasse exists refutes any contention an impasse was
reached in negotiations in the instant case. The bargain-
ing history reveals that since the last collective-bargain-
ing agreement expired in 1974 the parties on several oc-
casions prior to the most recent bargaining negotiations
had attempted unsuccessfully to negotiate a new collec-
tive-bargaining agreement. The good faith of the Re-
spondent in negotiations was not an issue at the hearing
and therefore such factor will not be considered.' 0 On
the length of negotiations, while they took place over a
period of approximately 14 months excluding the approx-
imate 6-month period in which negotiations were sus-
pended because of the representation petition's being
filed, and involved 47 meetings, these meetings them-
selves each only lasted a few hours or less and it was not
until the 30th negotiation meeting that the Respondent
presented its own contract proposal. Further, at the time
of the last meeting the Respondent, although requested
by the Union to do so, had neither submitted its wage
proposal nor had wages even been discussed. With re-
spect to the importance of the issues of disagreement
there were serious issues still open concerning the job
movement procedure as well as other outstanding unre-
solved issues when the Respondent unilaterally imple-
mented the change in the job movement procedure.
The remaining factor, i.e., the contemporaneous under-
standing of the parties, applied to facts here further dem-
onstrates no impasse was reached. From the time the Re-
spondent first presented its proposal to change the job
movement procedure at the 30th negotiation meeting the
Union made a number of counterproposals including one
made at the meeting held immediately preceding the
meeting at which the Respondent announced it was
going to implement its own job movement proposal.
Under such counterproposals the Union would agree to
limit the employees previously unrestricted number of
job moves notwithstanding the Respondent, except for a
few concessions, adamantly insisted on obtaining an
agreement on its own proposal. Thus, the Union's contin-
1' To the extent the Respondent argues in its brief that the Union was
not acting in good faith because of its statements about offering counter-
proposals to the job movement procedure discussed previously and by of-
fering such proposals, I do not find such argument persuasive for those
reasons previously indicated.
1087
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ued movement on this issue until the change was unilat-
erally made and implemented by the Respondent negates
any conclusion assumed by the Respondent that an im-
passe had been reached at that point.
Under these circumstances and for the reasons dis-
cussed, I am persuaded and find that the Respondent un-
lawfully refused to bargain with the Union as the exclu-
sive representative of the unit employees at the plant by,
on January 9 and at a time when no bargaining impasse
existed, unilaterally changing the existing job movement
procedure of the unit employees and thereby violated
Section 8(aX5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, found to constitute unfair labor practices oc-
curring in connection with the operations of the Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCLUSIONS OF LAW
1. E. I. du Pont de Nemours & Company is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. DuPont Newport Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. All employees employed by the Employer at its
Newport, Delaware plant; excluding salary roll employ-
ees exempt under the provisions of the Fair Labor Stand-
ard Act, temporary or part-time employees, watchmen,
secretaries to the plant manager, manufacturing manager
and plant technical superintendent, clerical employees in
the employee relations department, plant nurses, guards
and supervisors as defined in the Act constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. The DuPont Newport Union is now and at all times
material herein has been the exclusive representative of
all the employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By refusing to bargain collectively with the above-
named labor organization as the exclusive bargaining
representative of all of its employees in the appropriate
unit, by, on January 9, 1983, at which time no impasse in
bargaining existed, unilaterally changing the existing job
movement procedure, the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act. Accordingly,
having found that the Respondent on January 9, 1983,
unilaterally changed the job movement procedure of its
unit employees, I shall order it to restore the job move-
ment procedure as it existed prior to the change on Janu-
ary 9, 1983, and to bargain with the Union before
making any changes in the job movement procedure or
in the wages, hours, and other terms and conditions of
employment of its unit employees. To restore the status
quo ante as it existed prior to this unlawful change on
January 9, 1983, I shall order the Respondent to give
those unit employees, if any, who were denied the op-
portunity to bid on other jobs as a result of this change
in the job movement procedure, to bid on those jobs
they would have been entitled to have bid on since Janu-
ary 9, 1983, under the job movement procedure as it ex-
isted prior to January 9, 1983.
[Recommended Order omitted from publication.]
1088