E. I. Du Pont de Nemours & Co., Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1974

210 N.L.R.B. 395 (N.L.R.B. 1974)

E. I. DU PONT DE NEMOURS & CO., INC. 395
E. ,I.; Du ! Pont! de, Nemours & 'Co., Inc. and' United
Steelworkers of America , AFL-CIO, CLC, Peti-
tioner. Case 5-RC-8648
April 30, 1974
DECISION AND CERTIFICATION OF
REPRESENTATIVE
the meaning of the Act, and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Sections 9(cXl) and
2(6) and (7) of the Act.
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election, executed by the parties and
approved by the Regional Director on August 10,
1973, an election by secret ballot was conducted on
September 11 and 12, 1973, under the direction and
supervision of the Regional Director for Region 5
among the employees in the unit described below. At
the conclusion of the election, the parties were
furnished a tally of ballots which showed that of
approximately 382 eligible voters, 381 cast ballots, of
which 190 were for, and 177 against, the Petitioner.
There were 14 challenged ballots which were suffi-
cient in number to affect the results of the election.
After conducting an investigation, the Regional
Director on October 4, 1973, directed that a hearing
be held to resolve the challenges.
Pursuant thereto a hearing was held before
Hearing Officer Louis J. D'Amico. On December 20,
1973, Hearing Officer D'Amico issued his Report on
Challenged Ballots in which he recommended that
the challenges to the 14 ballots be overruled and that
the ballots of Ronald D. Heflin, Mark S. Caldwell,
Ernest W. Dern, Robert Grubb, William Fraley,
Wayne Whitmore, Daniel Viands, James Fulk, John
Hildebrand, Rupert Armel, Detral Merchant, Wil-
liam Grant, Warren Stein, and Charles Hornbecker
be opened and counted. Thereafter, the Petitioner
filed timely exceptions to the Hearing Officer's
report and recommendations.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record in this case,
including the Hearing Officer's report and the
Petitioner's exceptions thereto. The Board has
reviewed the Hearing Officer's rulings made at the
hearing and finds that they are free from prejudicial
error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
1 it is not clear whether Respondent has excepted to the Hearing
Officer's recommendation that the challenges to the ballots of Mark S.
Caldwell, Ernest W. Dern, and Ronald D . Heflin be overruled. However, in
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All wage roll production and maintenance em-
ployees and wage roll laboratory employees at the
Employer's plant and laboratory located at
Falling Waters, West Virginia, including all
truckdrivers , but excluding all office clerical
employees, professional employees, watchmen,
guards, and supervisors as defined in the Act, as
amended.
5. The Board has considered the challenges, the
Hearing Officer's report, the Petitioner's exceptions,
and the Employer's brief supporting the Hearing
Officer's report, and hereby adopts the Hearing
Officer's findings, conclusions, and recommenda-
tions only to the extent consistent with this Decision.
Petitioner challenged the ballots of Rupert Armel,
William Fraley, James Fulk, William Grant, Robert
Grubb, John Hildebrand, Charles Hombecker,
Detral Merchant, Warren Stein, Daniel Viands, and
Wayne Whitmore on the ground that they were
supervisors within the meaning of Section 2(11) of
the Act.
The Employer manufactures high explosive prod-
ucts at its plant situated in Falling Waters, West
Virginia. In the summer of 1971, the Employer's
plant began plans to produce a dynamite substitute,
cartridge water gel. Initially the plans called for
temporary production facilities in the Miscellaneous
Explosive Department (MED), followed by the
construction of a new permanent facility, should the
water gel prove acceptable to customers.
During the initial stage of this project, Grubb was
promoted in September 1971 to a relief foreman job
in MED. At that time, Grubb was told that the
operation was expected to be of limited duration and
that, if the explosive turned out to be a success, a new
plant would be built which would eliminate the need
for a relief foreman.
When the initial production stage proved the water
gel commercially acceptable, the new plant construc-
view of resolution of the remaining challenges these challenges are
insufficient in number to affect the election and therefore are no longer
determinative.
210 NLRB No. 51
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion plans were begun in the summer of 1972 and
simultaneously the temporary production facilities
were expanded by increasing the number of shifts
and days of operation. This necessitated more relief
foremen, so, in October 1972, Fraley and Hornbeck-
er were promoted to that job. Fulk in December 1972
and Whitmore in February 1973 were similarly
promoted.2 Each was told that their tenure as relief
foreman would be limited in time and that they
would return to "unit" jobs. Viands was appointed to
relief supervisor in May 1973. All continued to serve
in that capacity at the time of the election.
In December 1972, the Powder Department decid-
ed that it needed experienced relief supervisors.
Armel, Grant, Hildebrand, and Merchant were
selected and began training for that job. They were
promoted in February 1973. Upon the completion of
their program, some permanent foremen in the
Powder Department were given other assignments,
and these individuals took over as supervisors for the
duration of the assignments. In June 1973, the
Powder Department needed one more relief foreman
and Stein was promoted.
The parties stipulate that all 11 continued at all
times from the dates of their promotions to at least
the dates of the election held on September 11 and
12, 1973, to perform their relief foremen duties.
During the time the 11 have been relief foremen they
have retained certain benefits which they enjoyed as
unit employees; job preference cards, bidding rights,
listing on wage roll, scheduling of vacations with
wage roll employees, listing on overtime records, and
retention of lockers. All 11 relief foremen were
advised when promoted that their tenure would be
temporary, but there is no evidence that any of these
relief foremen or any of the unit rank-and-file
employees had been advised by the Employer of a
specific time when the relief foremen would cease to
exercise supervisory authority and would return to
their unit jobs. Indeed, it appears that no one
including the Employer knew with any certainty
when these individuals would return to unit work.3
The Hearing Officer recommended that the relief
foremen, although exercising Section 2(11) superviso-
ry authority on both the eligibility and election dates,
should be permitted to vote, basing his recommenda-
2 Hombecker, unlike Grubb, Fraley, Fulk and Whitmore, did not serve
as a foreman in connection with the water gel project , but replaced a
foreman on temporary assignment with that project
3 Employer does contend the assignments would not extend beyond
December 1973 Such a limiting date several months beyond the assignment
date is insufficient to establish that Employer knew when the individual
would be relieved of his supervisory duties In any case, this information
was never conveyed to the individual or to the employees he supervised
4 The Hearing Officer relied on United States Steel Corporation, Central
Furnace, 188 NLRB 309, finding the employees analogous to employees in
temporary layoff status. However, in that case , the Board was determining
the eligibility of individuals to vote where they were supervising nonumt
tion on his finding that the jobs were of a temporary
nature.4 We do not agree.
It is true, as a general proposition, that individuals
holding "temporary" supervisory positions are nor-
mally found eligible to vote in Board elections .5 This
is so because, in most situations, temporary supervi-
sory assignments may properly be viewed as relative-
ly insignificant interludes in regular employee assign-
ments. That does not appear to us to be the case
here. Here, the relief foremen worked continuously
as supervisors of unit personnel for periods ranging
from 3 months to 24 months prior to, and including,
the election dates. As the Hearing Officer found,
"whether the duration of these relief foremen
positions for the water-gel explosive would be short-
lived or not was dependent on factors that could not
be controlled; i.e., experimental and developmental
work, production problems, customer acceptance,
etc." In fact, there is evidence that many of the
"relief foremen" have, in the past, become perma-
nent foremen. At the least, even those who might
ultimately be returned to the unit would continue to
be called upon to relieve the "permanent" foremen
during their annual 5-week vacations, and during
other absences for illness or other reasons .6
We note, moreover, that the individuals in ques-
tion, unlike those involved in other cases,7 supervised
the very employees in the unit, for the entire period
of the organizational campaign up to and including
the election. To grant the relief foremen unit and
voting eligibility for this election would, it seems to
us, present serious conflict of interest problems.
Should we find the relief foremen to be employees,
and eligible to vote, because of their allegedly
overriding interest in the outcome of the election,
presumably they should be entitled to ask their
fellow employees how they would vote, and convey
to them their own thoughts about organization-in-
cluding, perhaps, what the Employer would do in the
event of unionization. They would, in order to cast
an informed vote, be entitled to attend union
meetings, inquire as to who is supporting the union,
and engage in the many other activities to which
"employees" are entitled under Section 7. Presuma-
bly the relief foremen could legitimately run for
union office, and be privy to intimate union
employees on a temporary basis. In that decision , the Board noted that the
analogy may not hold with respect to an individual supervising unit
employees , and permitted the one temporary supervisor who was supervis-
ing unit employees to vote subject to resolution of his eligibility through the
challenge procedure
5 See, e g., Stewart & Stevenson Services, Inc, 164 NLRB 741
6 Whether, in fact, some of the "relief foremen" were returned to their
unit jobs after the election is not material , since it is the relief foremen's
status on the eligibility and election dates, not that which later developed,
which is controlling.
7 See, e.g., Westinghouse Electric Corporation, 163 NLRB 723.
E. I. DU PONT DE NEMOURS & CO., INC.
organizational plans. On the other hand, since these
foremen, though deemed "relief," constituted the
major part of the Employer's supervisory cadre
throughout this period, the Employer would have
been entitled to insist that they campaign on its
behalf against the Union and perhaps consult with it
about the progress of the campaign.
We believe that unit employees have the right to
engage in union activities and in the choice of a
collective-bargaining representative free from the
participation of individuals who have been their
chief , and perhaps only, supervisors for indefinite
periods of time ; who at the time of the election
appeared to have prospects of continuing in a
supervisory role for further periods; and, perhaps
most importantly, whose loyalty the employer could
and undoubtedly would, demand during the preelec-
tion period.
Accordingly, we find the relief foremen ineligible
to vote and we hereby find that the challenges to the
ballots of Rupert Armel, William Fraley, James
Fulk, William Grant, , Robert Grubb, John Hilde-
397
brand, Charles Hornbecker, Detral Merchant, Warren
Stein, Daniel Viands, and Wayne Whitmore should
be sustained.
As noted above, the remaining three challenges are
no longer determinative of the results of the election.
Accordingly, and in view of the fact that the tally of
ballots shows that a majority of the valid votes cast
has been cast for Petitioner, we shall issue a
certification of Petitioner as the collective-bargaining
agent for the employees in the above-described unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for United Steelworkers of
America, AFL-CIO, CLC, and that, pursuant to
Section 9(a) of the National Labor Relations Act, as
amended, the said labor organization is the exclusive
representative of all the employees in the unit found
appropriate herein for the purposes of collective
bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment.