E. I. du Pont De Nemours & Co.

National Labor Relations Board - Board Decisions

Jul 5, 1940

25 N.L.R.B. 153 (N.L.R.B. 1940)

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