E. I. du Pont & Co.

National Labor Relations Board - Board Decisions

Sep 21, 1992

308 N.L.R.B. 903 (N.L.R.B. 1992)

903
308 NLRB No. 125
E. I. DU PONT & CO.
1 No exceptions were taken to this finding.
2 The Charging Party has excepted to the judge’s failure to identify
these employees. We shall leave that matter to compliance.
E. I. du Pont de Nemours and Company and Neo-
prene Craftsmen Union affiliated with Inter-
national Brotherhood of Du Pont Workers.
Case 9–CA–28338
September 21, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On April 30, 1992, Administrative Law Judge John
H. West issued the attached decision. The Charging
Party filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order, which
is modified to reflect the amended remedy.
The judge found that the Respondent violated Sec-
tion 8(a)(5) of the Act by unilaterally repudiating arti-
cle IV, section 5(e) of the collective-bargaining agree-
ment.1 The Charging Party excepts to the judge’s rem-
edy, however, contending, inter alia, that it is incom-
plete. We have decided to grant the exception, in part,
and to modify the remedy.
The relevant facts are as follows. The unit at the Re-
spondent’s plant consists of four master seniority divi-
sions. By early February 1991, the Respondent had de-
termined that it needed 12 additional employees in the
operations master seniority division. Article IV, section
5 of the collective-bargaining agreement sets forth the
method for filling vacancies in a seniority division.
The first four steps in the process call for promotion,
return of eligible employees to their ‘‘home’’ seniority
units, reemployment of laid-off employees, and job
bidding. The final step, section 5(e), provides for hir-
ing new employees. The Respondent unilaterally de-
cided, however, that if the 12 vacancies were not filled
after the first 4 steps, it would fill the remaining va-
cancies by transferring employees from the auxiliary
master seniority division to the operations division and
use subcontractors to do work previously done by
those transferees. The Union opposed the Respondent’s
plan, asserting that it was inconsistent with the terms
of the collective-bargaining agreement and the parties’
past practice. The agreement is silent regarding the in-
voluntary transfer of employees.
There were no employees eligible for promotion or
for recall from layoff. Three employees returned to
their ‘‘home’’ seniority units, and four vacancies were
filled by job bidding. Five employees were forced to
transfer to the operations division.2
The judge found that the forced transfers violated
the Act. He ordered that the five employees, on re-
quest, be returned to their former positions and that
they be made whole, and that the Respondent cease
and desist from unilaterally modifying the collective-
bargaining agreement. In its exceptions the Charging
Party contends that the remedy is incomplete because
it responds only to the Respondent’s refusal to bargain
collectively and the improper transfer of employees be-
tween master seniority divisions, while failing to rem-
edy the Respondent’s repudiation of the agreement. It
further contends that the Board can effect a complete
remedy only by ordering the Respondent to hire 12
new employees pursuant to article IV, section 5, of the
collective-bargaining agreement.
We agree, in part, with the Charging Party that the
recommended remedy does not fully remedy the Re-
spondent’s unfair labor practice. As explained below,
we shall order that the status quo ante be restored to
the time of the Respondent’s unlawful conduct and
that the Respondent fill any resulting vacancies by ap-
plying article IV, section 5(e), of the collective-bar-
gaining agreement.
We note at the outset that the Respondent’s use of
subcontractors is not at issue in this case. Similarly,
the parties did not litigate the issue whether the job-
bidding process was tainted by the Respondent’s ac-
tions, although in its brief the Charging Party made a
bare allegation that the four employees who bid on the
vacancies were coerced by the threat of job loss. We
are concerned here solely with the Respondent’s con-
duct and its effect on the five employees who were
forced to transfer.
The record supports the judge’s finding that, had the
Respondent abided by the collective-bargaining agree-
ment with the Union, it would have hired five employ-
ees after the process required by article IV, section
5(a) through section 5(d), succeeded in filling only 7
of 12 vacancies. It is undisputed that section 5(e), the
final step in the process, requires the Respondent to fill
vacancies by hiring employees. Nonetheless, when the
Union’s attorney insisted that the Respondent was obli-
gated under the bargaining agreement to hire new em-
ployees if the job bidding process did not fill the va-
cancies, Labor Relations Specialist James Guidice ex-
plained that a mandate from the Respondent’s home
office prohibited the hiring of new employees. Thus,
we adopt the judge’s finding that the Respondent re-
fused to bargain by unilaterally repudiating the collec-
tive-bargaining agreement requirement that it hire new
employees to fill the vacancies.
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless indicated otherwise, all dates are in 1991.
The Respondent, as the judge found, violated the
Act when it forced five employees to transfer to the
operations division instead of hiring employees pursu-
ant to section 5(e). Accordingly, we shall require the
Respondent, on request, to return the five transferees
to their former positions and to fill any resulting va-
cancies by applying article IV, section 5(e), of the col-
lective-bargaining agreement. We shall permit the Re-
spondent to make a showing, at the compliance stage
of these proceedings, of any changed circumstances
that would justify not filling the resulting vacancies.
AMENDED REMEDY
We amend the remedy and shall require the Re-
spondent to fill any vacancies which occur as a result
of this decision by applying article IV, section 5(e), of
the collective-bargaining agreement.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below, and orders that the Respondent, E. I.
du Pont de Nemours and Company, Louisville, Ken-
tucky, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) On request of the Union and if the five em-
ployees adversely affected by the unlawful change de-
sire to return to their former positions, rescind the
transfers which resulted in a violation of the Act, re-
store these employees to their former positions, and fill
the resulting vacancies by applying article IV, section
5(e), of the collective-bargaining agreement.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with the
Neoprene Craftsmen Union affiliated with International
Brotherhood of Du Pont Workers as your exclusive
representative by making unilateral changes in your
terms and conditions of employment without first
reaching agreement with the Neoprene Craftsmen
Union affiliated with International Brotherhood of Du
Pont Workers concerning such changes.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
rights under Section 7 of the National Labor Relations
Act.
WE WILL, on request of the Neoprene Craftsmen
Union affiliated with International Brotherhood of Du
Pont Workers and if the five employees affected by the
unilateral change desire to return to their former posi-
tions, rescind the five transfers which resulted in a vio-
lation of the Act, restore these employees to the posi-
tions they held before their transfers, and fill any re-
sulting vacancies by applying article IV, section 5(e),
of the collective-bargaining agreement.
WE WILL make whole the five employees who may
have been adversely affected by our unilateral repudi-
ation of a provision of the collective-bargaining agree-
ment on or about April 1, 1991, with interest.
E. I. DU PONT DE NEMOURS AND COMPANY
Eric V. Oliver, Esq., for the General Counsel.
Charles E. Mitchell, Esq., of Wilmington, Delaware, for the
Respondent.
Max J. Goldsmith, Esq., of Louisville, Kentucky, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. Upon a charge
filed March 1, 1991,1 as amended on April 9, by Neoprene
Craftsmen Union affiliated with International Brotherhood of
Du Pont Workers (Union), a complaint was issued April 16
alleging that E. I. du Pont de Nemours and Company (Re-
spondent) violated Sections 8(a)(1) and (5) and 8(d) of the
National Labor Relations Act (Act) by failing since April 1
to continue in full force and effect all the terms and condi-
tions of the collective-bargaining agreement with the Union
in effect at the time by filling certain job positions through
transfers and subcontracting rather than through hiring new
employees as required by said agreement. Respondent denies
that it violated the Act.
A hearing was held in Louisville, Kentucky, on November
1. On the entire record in this case, including my observation
of the demeanor of the witnesses and consideration of the
briefs filed by General Counsel, the Respondent and the
Charging Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is engaged in the manufacture
and sale of neoprene, Freon, and related products in Louis-
ville. The complaint alleges, the Respondent admits, and I
find that at all times material, Respondent has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union has been a
labor organization within the meaning of Section 2(5) of the
Act.
905E. I. DU PONT & CO.
II. THE ALLEGED UNFAIR LABOR PRACTICE
THE FACTS
Respondent and the Union entered into their most recent
collective-bargaining agreement on April 17, 1989. (C.P.
Exh. 1.) By its terms, article XVI, section 1 thereof, the col-
lective-bargaining agreement continued in full force and ef-
fect through March 21 and from year to year thereafter un-
less, at least 60 days prior to any expiration date, either party
notifies the other in writing of its desire to terminate the col-
lective-bargaining agreement. Since neither party gave notice
60 days before March 21, at the time of the hearing herein
the collective-bargaining agreement was effective through
March 21, 1992.
The involved plant, as set forth in article IV, section 2 of
the collective-bargaining agreement, consists of four master
seniority divisions, namely, engineering, operations, auxil-
iary, and fireman. The first three named divisions consist of
specified units.
Beginning in December 1990 and ending in early February
1991, Respondent held a number of manpower meetings. It
was determined that Respondent needed 12 additional em-
ployees in operations but that in view of economic condi-
tions and its cost-reduction program, it would not hire 12
people. No consideration was given to terminating the collec-
tive-bargaining agreement and entering into discussions with
the Union about the filling of the vacant positions in oper-
ations.
Instead, on February 13 Respondent’s representatives met
with union representatives to discuss the 12 vacancies. James
Guidice, an area labor relations specialist, spoke for the Re-
spondent. Carl Goodman, the union president, spoke for the
Union. Guidice indicated that Respondent had 12 vacancies
and a handout (G.C. Exh. 3) was distributed explaining how
Respondent intended to fill these vacancies. It was indicated
that if the vacancies were not filled by the bidding process,
Respondent would require up to 12 employees in the auxil-
iary division (8 utility operators and 4 maintenance opera-
tors) to transfer to operations to fill the vacancies. Guidice
also stated that subcontractors would be used to do part of
the work formerly done by those who would be moved to
the vacant positions in operations. Goodman stated that there
was no contractual authority for what Respondent proposed;
that under the collective-bargaining agreement the Respond-
ent was required to hire when it was unable to fill vacancies
through the job bidding process; and that the Union would
force the issue to arbitration, if necessary. Guidice indicated
that Respondent was not going to fill the vacancies by hiring
new employees and that he would not be concerned if the
Union took the matter to arbitration because by the time it
went through the arbitration process, the parties would be
into a new contract setting and Respondent would get it in
then. When asked by Goodman why Respondent did not re-
open the contract by giving notice on January 21, Guidice
responded ‘‘[W]e chose not to use that option.’’ Goodman
indicated that the Union would have to discuss this matter
with its attorney and the Union would get back to Respond-
ent.
Article IV, section 5 of the collective-bargaining agree-
ment specifies as follows:
Section 5. When job vacancies in a seniority unit
occur, they will be filled in the following order:
(a) By Promotions. Promotions shall be made within
all seniority units on the basis of unit seniority provided
the employees have approximately the same qualifica-
tions and are qualified to perform the job.
(b) By return of eligible employees within the Mas-
ter Seniority Division to their ‘‘home’’ seniority
units. . . .
(c) By reemployment of former employees who were
terminated because of lack of work and who are eligi-
ble for reemployment under Section 1(b) of this Article
and by return of employees outside the Master Senior-
ity Division to their ‘‘home’’ Master Seniority Divi-
sion. . . .
(d) By job bidding. . . .
(e) By hiring of new employees.
Goodman testified that there was no one to promote into
these vacancies when they were declared; that the return of
eligible employees applied to three named employees; that
since no one was on layoff, there was no one to return under
section 5(c); and that, therefore, Respondent would have to
use job bidding and then hiring of new employees.
On February 20 the parties met again. Max Goldsmith, an
attorney, spoke for the Union, indicating that it was clear that
under the collective-bargaining agreement the Respondent
was obligated, in the existing circumstances, to hire new em-
ployees if the job bidding process did not fill the vacancies.
Goldsmith insisted that Respondent comply with the express
terms of the collective-bargaining agreement. Guidice, while
again conceding that Respondent chose not to reopen the
contract, pointed out that Respondent would not hire new
employees since there was a mandate from its home office
in Wilmington, Delaware, prohibiting the hiring of new em-
ployees.
On February 21 the parties met again. Respondent was
represented by Lida Crowe, Respondent’s human relations
area specialist and Carl Turner, Respondent’s human re-
source supervisor. Goodman spoke for the Union. Crowe,
stated that the process of filling the involved vacancies
would begin with eligible employees being permitted to re-
turn to their ‘‘home’’ seniority units; that the job bidding
process would be utilized to fill the remaining vacant posi-
tions; that Respondent was not going to hire new employees;
and that employees in the auxiliary master division would be
forced to transfer to operations if necessary. Goodman indi-
cated that Respondent had no choice but to hire new employ-
ees if vacancies were still in existence after the job bidding
process was exhausted. Crowe stated that Respondent would
utilize the reduction of force provisions of the collective-bar-
gaining agreement to fill any vacancies not filled by the job
biding process. Goodman responded ‘‘[h]ow can you have a
reduction of force when no one is being laid off.’’ Goodman
was presented with a set of charts, which assertedly showed
Respondent’s process of filling the vacancies (G.C. Exh. 5).
On February 22 the involved job vacancies were posted in
operations (G.C. Exh. 7). Three of the positions were filled
by employees being returned to their ‘‘home’’ seniority units.
Four of the positions were filled by the job bidding process.
906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Contrary to Respondent’s assertions, use of the reduction-of-force
provision of the collective-bargaining agreement to accomplish some
of the transfers was inappropriate. The requirements of that provision
were not followed and there was no reduction of force.
3 Respondent gives no real reason to reverse this ruling other than
disagreeing with the conclusions reached by the Board in certain
cases, namely, Oak Cliff-Golman Baking Co., 202 NLRB 614
(1973), and Struthers Wells Corp., 254 NLRB 1170 (1979). Obvi-
ously I am bound by Board precedent. The language involved herein
is clear and unambiguous. Additionally, there is no real question of
interpretation. Accordingly, the ruling stands.
On or about April 1 five employees in the auxiliary master
seniority division were forced to transfer into the remaining
vacant positions in operations.
Respondent then began utilizing subcontractors to do a
portion of the work formerly done by the employees who
were utilized to fill the involved vacancies.
When asked at the hearing herein what provision of the
collective-bargaining agreement allowed Respondent to force
employees out of auxiliary into operations, Crowe testified
that the collective-bargaining agreement was silent on that.
And when asked how Respondent applied the layoff provi-
sions of the collective-bargaining agreement in order to ac-
complish the forced movement of the five employees from
auxiliary to operations, Crowe testified that the specific steps
for laying off employees under Section 7 of the collective-
bargaining agreement were not followed by the Respondent
in that, contrary to the collective-bargaining agreement, they
were not allowed to bump and they were not offered the op-
tion of termination or severance. Assertedly utilizing this
provision of the collective-bargaining agreement, two of the
employees were returned to their former master seniority di-
vision, operations. Crowe also testified that in the past the
Union had consented to deviations from the collective-bar-
gaining agreement regarding filling vacancies or moving peo-
ple around. She conceded that in this instance not only the
Union but the Union’s attorney specifically objected to Re-
spondent not following the collective-bargaining agreement.2
Goodman testified that to his knowledge, the Union has
never allowed the Respondent to cross master seniority divi-
sions when it was filling a vacancy; that by agreement of the
Respondent and the Union there has been movement, appar-
ently across master seniority divisions, of employees who
have a medical disqualification; that no one in the plant had
ever been laid off during the period involved and that the
layoff provision of the collective-bargaining agreement had
never been used to reduce the number of employees in one
division and at the same time increase the number in another
division.
Guidice testified that he researched whether Respondent
could utilize the process it wanted to utilize to fill the vacan-
cies by speaking to the expert, Crowe; that the issue that
they were discussing was once the Company decided they
were not going to follow article IV, section 5(e) of the col-
lective-bargaining agreement what other alternatives were
there; that Crowe told him that she had discussed all moves
across seniority division lines in the past with the Union; that
in his opinion the Union does not have to agree to a move
across master seniority divisions; and that he did not believe
that the involved section of the collective-bargaining agree-
ment requires Respondent to hire other than when Respond-
ent decides that it wants to hire.
Contentions
General Counsel, on brief, contends that having employees
cross master seniority divisions for the purpose of filling job
vacancies clearly defies the express terms of the collective-
bargaining agreement; that in the past when employees have
been moved across master seniority divisions, it has been
done pursuant to an agreement between the Respondent and
the Union; that here Respondent forced approximately five
employees from the auxiliary master seniority division into
operations without first obtaining the Union’s consent; that
Respondent’s refusal to comply with the specific terms of the
collective-bargaining agreement relative to the filling of job
vacancies in operations constitutes a violation of Sections
8(a)(1) and (5) and 8(d) of the Act; that if an employer pro-
poses midterm contractual modifications and the union is op-
posed to the same, the employer is then required to hold its
proposed changes in abeyance until the contract expires; that
inasmuch as the intent of article IV, section 5 of the collec-
tive-bargaining agreement is crystal clear and given Re-
spondent’s unmistakable repudiation of the collective-bar-
gaining agreement and blatant disregard of the Union’s
rights, there is no basis on which the instant matter can be
legitimately deferred; and that, as a remedy, ‘‘Respondent
[should] be compelled to follow the express terms of the
contract in a manner as to create a scenario that would have
occurred had there been no repudiation of said contract.’’
Charging Party, on brief, argues that whether the seven
employees who bid into operations did so voluntarily is de-
batable in light of the fact they had been told their jobs in
auxiliary were to be eliminated and bidding into operations
was the only alternative to termination; that while Respond-
ent asserts that its motivation was economic in nature as the
result of market changes and cost reductions, economic ne-
cessity is not a cognizable defense to an employer’s unilat-
eral change in an existing collective-bargaining agreement;
that if Respondent knew it needed to reduce costs and could
not hire contrary to the contract, it had a statutory duty and
ample opportunity to reopen the collective-bargaining agree-
ment for bargaining on this issue within the prescribed pe-
riod and with the prescribed notice to the Union; that merely
meeting with the Union after the deadline for reopening the
contract has passed does not come close to satisfying Section
8(d) of the Act; that inasmuch as the 12 employees who
were moved to operations have been in their new positions
for some time, it does not appear practical at this time to
move them back to auxiliary; and that, therefore, Respondent
should be ordered to restore the 12 auxiliary jobs to the bar-
gaining unit and hire new employees to fill those positions
as is required by the collective-bargaining agreement.
Respondent, on brief, contends that this dispute inappropri-
ately was denied deferral to arbitration by the Region and by
the administrative law judge;3 that assuming arguendo, that
deferral was proper, this dispute nevertheless should be dis-
missed; that Respondent has not surrendered by article IV,
section 5 the right to decide if and when it shall add people
to the payroll but when management has determined that new
people are to be added it readily concedes that this provision
comes into play; that there is no evidence that Respondent
was motivated by union animus, was acting in bad faith, or
in any way sought to undermine the Union’s status as collec-
907E. I. DU PONT & CO.
4 This allegation is included in this summary not as an indication
that it is relevant but rather as an indication of the position which
Respondent is taking. Respondent excepts to my refusal to receive
in evidence arbitrators’ awards dealing with Respondent’s sub-
contracting. The challenged exhibits were not, in my opinion, rel-
evant. This case is not really about subcontracting. This case is about
how Respondent filled vacancies by transferring its own employees,
some of whom were transferred against their will. Respondent uti-
lized procedures which were contrary to specific provisions in the
collective-bargaining agreement in effect at the time. In my opinion,
it has not been shown that there is any reason to reverse this ruling.
tive bargaining representative; that even if General Counsel’s
interpretation is controlling, it should not necessarily follow
that Respondent has refused to bargain within the meaning
of the Act, because a mere breach of the collective-bargain-
ing agreement is not in itself an unfair labor practice; that
the filling of job positions through transfers and subcontract-
ing rather than through hiring new employees was a permis-
sible midterm contract modification; that where a mandatory
subject is not contained in the contract, an employer must
bargain in good faith to impasse with union representatives
and if no agreement is reached, the employer may unilater-
ally implement its bargaining proposal with respect to the
matter not contained in the agreement; that the collective-
bargaining agreement in the instant case is silent with regard
to subcontracting;4 that since the collective-bargaining agree-
ment contains no provision regarding subcontracting, Re-
spondent could, as it assertedly did, bargain in good faith to
impasse with the union representatives, and no agreement
having been reached, unilaterally implement its bargaining
proposal with respect to the matter not contained in the
agreement; that Respondent felt that it could ill afford to take
on additional people and risk having to turn around and lay
them off again, as it had needed to do in the recent past;
that, at best, what is involved are conflicting interpretations
of the involved contract provision; and that the parties having
come to impasse it was available to Respondent to imple-
ment the complained-of midterm modification of the contract
because the contract is silent with regard to subcontracting.
Analysis
Before treating the merits, a procedural matter must be re-
solved. The Charging Party has filed a motion to strike the
brief of Respondent because it failed to mail a copy of said
brief to the Charging Party. Respondent replied pointing out
that it was an inadvertent omission and that it was rectified
when it was brought to Respondent’s attention. The summary
above telegraphs the ruling. Respondent has substantially
complied with the Board’s Rules and Regulations and the
Charging Party has not demonstrated that it has in any way
been prejudiced by Respondent’s initial inadvertent omission.
Accordingly, the Charging Party’s motion is hereby denied.
The Board in Nick Robilotto, Inc., 292 NLRB 1279
(1989), concluded as follows:
It is well established that Section 8(a)(5) and (1) and
Section 8(d) of the Act prohibit an employer that is a
party to an existing collective-bargaining agreement
from modifying the terms and conditions of employ-
ment established by that agreement without obtaining
the consent of the union. . . . The Respondent’s claim
that it is financially unable to . . . [comply with the in-
volved provision of the collective-bargaining agree-
ment] does not constitute an adequate defense to an al-
legation that an employer has violated Section 8(a)(5)
and (1) and Section 8(d) of the Act by failing to abide
by a provision of a collective bargaining agreement.
General Split Corp., 284 NLRB 418 (1987).
Here Respondent unilaterally modified the collective-bargain-
ing agreement. It did not assert herein that it was financially
unable to comply with the involved provision. Its claim of
economic necessity does not constitute an adequate defense.
NLRB v. Manley Truck Line, 779 F.2d 1327 (7th Cir. 1985)
Two cases cited by Respondent, NCR Corp., 271 NLRB
1212 (1984), and Auto Workers Local 547 v. NLRB, 765
F.2d 175 (D.C. Cir. 1985), are distinguishable in that in the
former, unlike here, certain articles in the involved collec-
tive-bargaining agreement gave rise to equally plausible, dif-
ferent and conflicting interpretations. And in the latter, the
employer satisfied all contractual and legal obligations to
bargain over its proposed action and the action, unlike here,
was fully consistent with the terms of the parties’ collective-
bargaining agreement. By filling five of the involved vacan-
cies with transfers instead of hiring new employees, Re-
spondent violated the Act as alleged in that the five transfers
resulted in a unilateral midterm modification of the collec-
tive-bargaining agreement.
CONCLUSIONS OF LAW
1. E. I. du Pont de Nemours and Company is an employer
engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. All employees of Respondent employed at its Louisville
Works, Louisville, Kentucky including powerhouse and re-
frigeration plant employees, chief operators, shift leaders, fire
department employees, cafeteria employees, and counter at-
tendants, but excluding all office and clerical employees,
chemical supervisors, technical engineers, assistant technical
engineers, draftsman, chemists, nurses and hospital techni-
cians, general foremen, foremen, fire chief, guards and all
other supervisors and professional employees as defined by
the National Labor Relations Act, as amended, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material, the Union has been the exclusive
representative of all employees within the said appropriate
unit for the purposes of collective bargaining in respect to
rates of pay, wages hours of employment, or other terms and
conditions of employment within the meaning of Section 9(a)
of the Act.
5. By unilaterally repudiating article IV, section 5(e) of the
collective-bargaining agreement it has with the Union on or
about April 1, 1991, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Sec-
tions 8(a)(5) and (1) and 8(d) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices within the meaning of Sections 8(a)(5) and (1) and
8(d) of the Act, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to ef-
fectuate the policies of the Act.
908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Having found that Respondent refused to bargain by uni-
laterally repudiating the collective-bargaining agreement re-
quirement that it hire new employees in the situation speci-
fied above, I will recommend that, on request, Respondent
restore the situation as it existed with respect to the five em-
ployees before it transferred them in violation of the collec-
tive-bargaining agreement on order to avoid having to hire
new employees, and that it cease and desist from unilaterally
modifying the collective-bargaining agreement during its ef-
fective term without first reaching agreement with the Union
concerning such changes.
I will further recommend that the approximately five em-
ployees affected by Respondent’s unlawful conduct be made
whole for any losses suffered thereby. Any backpay for such
employees to be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, E. I. du Pont de Nemours and Company,
Louisville, Kentucky, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union as the
exclusive representative of its employees in the above-de-
scribed appropriate unit by making unilateral changes in their
terms and conditions of employment without first reaching
agreement with the Union concerning such changes.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request of the Union and if the five employees
want their former positions back, rescind such transfers
which resulted in a violation of the Act and restore these em-
ployees to the positions they held before their transfers.
(b) Make whole the five employees who may have been
adversely affected by the Respondent’s unilateral repudiation
of the involved provision of the collective-bargaining agree-
ment on or about April 1, 1991.
(c) Preserve and, on request, make available to the Board
and its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(d) Post at its plant in Louisville, Kentucky, copies of the
attached notice marked ‘‘Appendix.’’6 Copies of the notice,
on forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.