E. I. DuPont de Nemours & Co.

National Labor Relations Board - Board Decisions

May 21, 1974

210 N.L.R.B. 770 (N.L.R.B. 1974)

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. I. DuPont de Nemours & Co. (Doyle Works) and
Doyle Works Employees ' Union . Case I-CA-9244
May 21, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On February 20, 1974, Administrative Law Judge
Sidney D. Goldberg issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
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 and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, E. I. DuPont de
Nemours & Co. (Doyle Works), Leominster, Massa-
chusetts, its officers, agents , successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
DECISION
SIDNEY D. GOLDBERG, Administrative Law Judge: In
this case the complaint i issued pursuant to Section 10(b) of
the National Labor Relations Act, as amended (the Act),
alleges that E. I. DuPont de Nemours & Co. (Doyle
Works) (herein called Respondent or the Company)
discharged an employee, George R. Adams, because he
engaged in union or concerted activities by filing a
grievance with Doyle Works Employees' Union (the
Union) over a wage-rate dispute he had with the Company.
Respondent answered, admitting that it had discharged
Adams and was refusing to reinstate him, but denying that
it had done so for the reasons alleged in the complaint.
The issues raised by the answer came on for trial before
me at Leominster, Massachusetts, on October 16 and 17,
1973. All parties were represented: they were afforded an
opportunity to adduce evidence, cross-examine witnesses,
and argue on the facts and the law. The General Counsel's
1 Issued September 14, 1973, on a charge filed July 3, 1973.
2 Typographical errors in the transcript have been corrected by order
dated January 23, 1974.
motion for summary judgment , made during the trial, was
denied . Decision was reserved on the General Counsel's
motion to assess litigation expenses against Respondent
and that motion is herein denied . Helpful briefs filed by
the General Counsel and by counsel for Respondent have
been considered.
For the reasons hereafter set forth in detail , I find that
Respondent 's discharge of Adams was in retaliation for his
activities , in concert with the Union, in filing and pursuing
a grievance and that such discharge violated Section
8(a)(3) and (1) of the Act.
Upon the entire record herein , 2 and considering the
demeanor of the witnesses while testifying , I make the
following:
FINDINGS OF FACT
1. THE PARTIES
Respondent , a Delaware corporation, operates a plastics
plant, designated as the Doyle Works, in Leominster,
Massachusetts . It admits that it annually imports, into the
Commonwealth of Massachusetts, materials valued at
more than $50,000 ; that it annually exports products
valued at more than $50,000 ; and that it is engaged in
commerce . I so find.
The record shows that Respondent has entered into a
collective -bargaining contract with the Union and Respon-
dent's answer admits that the Union is a labor organiza-
tion . I so find.
II. SUMMARY OF EVENTS
The material facts herein are substantially undisputed.
On June 18, 1973,3 George R. Adams, who had previously
worked for Respondent, inquired concerning job possibili-
ties there. He was first told that there were no openings
but, the same day, the Company teleph ned to request that
he come in for an interview. The followiri -iv ;ie came in,
was seen briefly by Chiara Lolli, the personnel assistant,
who told him that the job was in the bristling department,
where brushes are made,4 and turned him over to Clifford
T. Beckman, the production supervisor of that department.
Beckman showed Adams the machine he would operate
and they sat down and talked. Adams testified that
Beckman , knowing that his previous employment had been
at a "higher" rate, asked him what he thought would be a
fair starting rate; that, when he said he didn't know,
Beckman said, "How does $2.96 strike you?" and that he
answered that that rate was satisfactory. Beckman's
testimony on this point conceded that he mentioned the
$2.96 rate but he insisted that he had referred to it as the
rate for the job, as distinguished from the starting rate that
he was offering Adams. He also admitted that there may
have been a "misunderstanding" on the subject. There is
no dispute that, during their conversation, Adams in-
formed Beckman that he had been discharged by another
local employer, Borden Chemical Co., for "sleeping on the
job" and that, after Adams gave him the details of the
3 All dates herein not otherwise designated are in 1973
4 There is a conflict between the testimony of Adams and that of Mrs.
Loth as to whether there was any mention of the pay rate for the job.
210 NLRB No. 114
E. I. DUPONT DE NEMOURS & CO. 771
incident, Beckman said that he thought that Borden had
treated Adams unfairly and said that he would hire him.
Arrangements were made for Adams to come in the
following day for a physical examination. On the 20th,
Adams came in as scheduled and was given the physical
examination; he then saw Mrs. Lolli again and, at her
request, filled out a written application for employment.
With these formalities completed, he went to work at once.
Adams received his first paycheck on June 27, covering
his wages from the 20th to the 24th .5 He noted that he was
not being paid at the rate of $2.96 per hour. He talked with
William Wyrebeck, a friend and union official, telling him
that it had been agreed that his rate would be $2.96 but
that he did not get it. Wyrebeck testified that, while he
knew that the usual starting rate was $2.75, there was
nothing in the collective-bargaining contract that preclud-
ed a higher rate and he knew that Adams had previous
experience with the Company. Accordingly, he testified, he
advised Adams to discuss the problem with Beckman.
Adams answered that he would wait until he had received
his second paycheck before talking with Beckman.
On July 5, when Adams received his second paycheck,
covering the week from June 25 through July 1, he saw that
it was not computed at the $2.96 rate. He told Beckman
that he had not been paid at the $2.96 rate, which he
thought he was going to get; but since he did not have his
earlier payslip with him, he and Beckman agreed to discuss
the subject on Monday, July 9.
As agreed, Adams and Beckman met on July 9; they
went over Adams' slips and it was clear that he had been
paid $2.75 per hour. According to Adams, he asked
Beckman why he had not been paid at $2.96 and Beckman
said there must have been a misunderstanding. Adams
testified that Beckman also said that he didn't know
whether the misunderstanding was his fault but employees
were required to start at the $2.75 rate. Adams asked
Beckman to check with the foreman to see whether he,
Adams, wasn't earning the $2.96 rate and Beckman agreed
to do so.
Beckman's testimony confirms that of Adams in all
major details concerning their discussion on July 9 except
that he testified that he asked the foreman if there was any
reason why Adams should have been started at the $2.96
rate instead of the customary starting rate of $2.75 and that
the foreman said he knew of none. For the reasons
hereafter stated, it is unnecessary to resolve this conflict.
As Adams came out of Beckman's office he met
Wyrebeck who asked how the discussion had gone; Adams
told him and Wyrebeck advised Adams to cop kilt the
union representative on his shift. Wyrebeck also offered to
talk to Francis Bartolomeo, the president of the Union,
and he told Adams that he "felt that it was in order that
[Adams] should pursue a grievance."
Bartolomeo testified that, on either July 9 or 10,
Wyrebeck told him that Adams had a problem involving
his starting rate; that Wyrebeck told him that Adams said
he had been promised $2.96 but had received only $2.75;
and that when he, Wyrebeck, inquired about it he was told
.hat no employee starts at higher than the starting rate.
Bartolomeo further testified that he knew , from personal
contacts with employees, that both employees who had
quit and come back, and newly hired employees, had
started at rates higher than the usual starting rate.
Accordingly, Bartolomeo testified , he met with Adams and
Raymond Bishop, the union representative on Adams'
shift, the same day or the next one, and he authorized
Bishop "to initiate a grievance and to try to settle it."
Bartolomeo instructed Bishop , if he could not settle the
matter, to carry the grievance through step 2 and that he,
Bartolomeo, would handle it at step 3. At the same time,
Adams prepared and signed a grievance form for the
Union's record.
On Wednesday, July 11, Bishop and Adams went in to
see Beckman. Bishop said they had a grievance over
Adams' rate and that this was the second step . Beckman
answered that Adams was receiving the starting rate, as
would any new employee. Bishop replied that he had to
pursue the grievance . Beckman then said that he was going
to recommend that Adams' rate be raised to $2.96,
retroactive to July 9, and he asked Adams whether he
would still press his grievance for the first 2 weeks of his
employment. Adams answered in the affirmative.
Beckman testified that, after this interview and Adams'
statement that he would pursue the grievance , he talked
with Federick W. Trombley, the plant manager, and
outlined the situation ; and that Trombley confirmed the
fact that there was a problem and suggested that Beckman
discuss with Frank Nash , the employee relations superin-
tendent, the probable extent of union participation, but he
indicated that, because Adams was still in his probationary
period, the Union's participation would probably be
minimal . Trombley confirmed Beckman's consultation
with him as outlined. He added, however, that he told
Beckman that, while his interpretation of the contract was
that the Union had no right to pursue a grievance under
these circumstances , there was nothing in the contract to
prevent the individual involved from doing so, and it
would be best to accept the Union's involvement and
follow the prescribed grievance procedure.
Beckman testified that on the following day, Monday,
July 16, he again called Adams into his office; that he
asked Adams what he hoped to gain from pursuing the
"problem about his wage"; and that, when Adams
answered that he wanted what he felt was due him, he,
Beckman, replied that he thought that Adams and the
Union were wasting their time in pursuing the matter.
According to Beckman , Adams then said he would pursue
the grievance alone, if necessary . It was at this time, and as
a result of this exchange , Beckman testified , that he
resolved to recommend Adams' discharge. He again
consulted Trombley-without disclosing his decision to
have Adams discharged-and Trombley said that, since
Adams was a probationary employee, he could be
disciplined or discharged without the use of the procedure
required by the contract; and he added that discipline was
rarely used.
5 Almost all of the employees are on either the day shift , 7 a.m. until 3 night The employees on the afternoon shift receive their paychecks for the
p.m., or on the afternoon shift , 3 p in until I I p in. Adams was , at different preceding workweek at 3 p . m on Wednesday and the employees on the day
times, on both shifts . The workweek is from Monday morning until Sunday shift receive their paychecks at 7 a.m. on Thursday
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Thursday, the 19th, Beckman recommended that
Adams be discharged. He testified that he told Trombley
that
I felt this man had a severe attitudinal problem,
that he did not respond the way I had thought to
logical explanations of why he had gotten the rate that
he did get.
Also, the fact that he was continuing to pursue this
[the grievance ] on an individual basis ... .
Trombley's version of their conversation was as follows:
On July 19th Mr. Beckman again came to my office
and approached me and at this time he had a firm
recommendation that we proceed with the discharge of
Mr. Adams .... He noted that on several occasions
Mr. Adams had been unreasonable, obtuse, uncoopera-
tive and extremely presistent in pursuing a grievance,
pursuing a concern that he had with regard to the
starting rate.
Trombley's answer , according to Beckman, was
. wait a while and see if things change . . . see if
there's any ... other things that you can think of to
substantiate your recommendation for discharge.
According to Trombley, his answer was:
I pointed out to him that I did not believe that he
had sufficient justification or sufficient reason for me
to make a judgment decision to terminate Mr. Adams
at that point. I suggested to him that he develop more
data, both pro and con, in the Adams situation, discuss
it with personnel, employee relations, and with the
foreman, develop more information and return to me in
a week or so with a firm recommendation.
Despite the foregoing occurrences, Trombley had al-
ready approved Beckman's recommendation that Adams'
pay rate be raised to $2.96, retroactive to July 9. In the
paycheck he received on July 25, Adams' pay was
computed at the higher rate and the check included the
sum necessary to make that rate retroactive to July 9.
Shortly after he received this check, Adams testified,
Beckman asked him whether he was satisfied with it; he
answered that he was happy with it but, when Beckman
asked whether he still intended to pursue his grievance, he
said that he did.
Wyrebeck testified that on July 23, to carry the Adams
grievance to the third step, he arranged a meeting with
Homer Harmon, the plant engineer, for Wednesday, the
25th, at 2:30 p.m. At 2 p.m., on Wednesday, however, in
6 The merits of the dispute underlying the grievance, namely, whether
Adams was promised $2 96 as his starting rate, is not an issue to be decided
herein (see Interboro Contractors, Inc, 157 NLRB 1295 at 1298, In. 7 and
cases cited, enfd. 388 F.2d 495, 500 (C.A 2, 1967); Bob Henry Dodge, Inc,
203 NLRB No 1), although in view of Beckman's equivocation it cannot be
preparation for the meeting with Harmon, he met with
Beckman to obtain additional information. Beckman
repeated his statement that he "could not recall either way
having stated that George was going to get $2.96 an hour
or not and there may have been a misunderstanding."
Wyrebeck also testified that Beckman said he "had tried
several times and was just not able to make George
understand," but that he made no mention of the
preparations he had made to fire Adams. After this
discussion with Beckman, Wyrebeck testified, he called
Harmon and told him that Beckman couldn 't "recall either
way" having promised that Adams would receive $2.96;
that because he felt that the grievance meeting would be
"inconclusive", he had decided to drop the grievance and
would "talk with George and see if he could understand."
He testified, however, that he did not tell Adams about his
views or his cancellation of the grievance meeting until
Saturday, the 28th, after Adams had been discharged.
On Thursday, the 26th, Beckman returned to Trombley's
office and, although he admitted that he had not found any
other further basis for discharging Adams, he renewed his
recommendation that Adams be discharged . He specifical-
ly testified that his recommendation on the 26th was based
upon the same factors as his recommendation on the 19th.
Trombley told him that his own investigation had disclosed
Adams' discharge by Borden for sleeping on the job but
Beckman admitted that he had known about it because
Adams had told him about it at the hiring interview and
that he had hired him despite that information. Trombley
testified , however, that
on the basis of the three items : first, the persistence, the
obtusiveness , the uncooperation and the pursuit of this
misunderstanding, misinterpretation , on the starting
wage ; and secondly, the inconsistencies , or inaccura-
cies, or misrepresentations on the applications; and
thirdly , the willingness to accept a position where
sleeping on the job was not an unreasonable occur-
rence, I made the decision to terminate , discharge, Mr.
Adams.
At 3 p.m. on the 27th, as Adams was about to begin work
on the 3-11 p.m. shift, Beckman called him into the office
and told him that he was a probationary employee, that
during the 60-day probationary period the Company has
an opportunity to observe the employee and determine
whether he would make a desirable employee, that he,
Adams, had been "causing a problem," and that he felt
that it would be better if they separated. Adams asked
whether he was being fired and Beckman answered that he
was. At the same time, Harmon called Wyrebeck and told
him that Adams was being discharged by Beckman for
having a "poor attitude." At 5:30 that afternoon Bartolo-
meo was first informed that Adams had been discharged
and that the third-step grievance meeting had not been
held.
It is undisputed that, throughout the course of these
events, everyone involved acted courteously and that there
were no raised voices or harsh words.
said that Adams' position was entirely without merit. Accordingly, it is
,unnecessary to consider the plant practice in fixing starting rates for
recalled, rehired, or entirely new employees or the evidence concerning the
actual starting rates of other rehired employees.
E. I. DUPONT DE NEMOURS & CO. 773
III. DISCUSSION AND CONCLUSIONS
As outlined above, there is no dispute concerning the
facts relevant to the determination of the legal issue in this
case, i.e., whether Adams was discharged because of his
concerted or union activity in pursuing the wage rate
grievance,6 as contended by the General Counsel, or for
cause , as contended by Respondent. It appears, to me to be
beyond question, and I find, that it was Adams' instigation
of the grievance and his refusal to have the Union drop it
that was the real cause of his discharge. The evidence
shows that on July 16, when Adams said that if the Union
dropped the grievance he would pursue it himself,
Beckman made the firm decision to effect Adams'
discharge and that he thereafter exerted constant pressure
on Trombley to accomplish it. Moreover, Trombley
testified that Adams' insistence on pressing the grievance
was one of the principal reasons why he was discharged.
The other reason given by Trombley, the inconsistency
between Adams' statement, in his application of January,
that he had quit Borden, and his statement on his June
application that he had been fired, was not only rendered
moot by Adams' express disclosure of the facts to
Beckman , but it was, I find, a trivial concoction which
made no substantial contribution to Adams' discharge.?
The other discrepancies on some of the old documents in
Adams' file were not mentioned by either Trombley or
Beckman in connection with Adams' discharge and do not
justify any discussion here.
It is also beyond question that, although Adams' claim
for the compensation he believed had been promised to
him was the basis for the Union's grievance, the statements
of Union President Bartolomeo when he authorized its
prosecution show that the Union' s interest was broader
than Adams' claim and encompassed the general question
of top limits on the rate of pay for returning employees.
The only doubts expressed by Respondent concerning the
grievance were related to the question whether Adams, as a
probationary employee, had any right under the contract
to have his problem made the basis for a grievance by the
Union.
The relevant provision of the contract,8 however, shows
that Adams' claim for compensation was not one of those
matters concerning which the Union was precluded from
filing a grievance on behalf of a probationary employee.
Moreover, Plant Manager Trombley, although it was he
who expressed this doubt concerning the Union's right in
general to prosecute a grievance for a probationary
employee, nevertheless made the considered derision to
accept and process the Union's grievance in accordance
with the provisions of the contract.
7 This is not to say that Respondent could not discharge Adams for this,
or any other reason, however trivial, so long as it was not illegal, but it is to
say that this was not the reason
8 Art. X, sec. 2, of the contract provides that:
. . During this probationary period of sixty (60) calendar days, a
new employee will be subject to transfer, demotion, termination
because of lack of work or discharge and such action shall not be
considered the basis for a grievance by the UNION
9 Snap-On Tools Corporation, 207 NLRB No. 31, C & I Air Conditioning,
Inc., 486 F.2d 977 (C.A. 9, 1973); and Northern Metal Company, 440 F.2d
881 (C.A. 3, 1971).
10 In view of the testimony of Bartolomeo, the Union's president, that he
normally handlea grievances at the third step and that he asked Wyrebeck
Unlike the factual situations in the cases cited by
Respondent,9 therefore, this is not a case in which the
activity in question is that of an individual employee and in
which the cause involved is one which affects solely or
mainly the rights or aims of that employee. On the
contrary, although the matter was brought to the attention
of the Union by Adams and he stood to benefit by a
favorable resolution, the grievance was an authorized and
formal grievance prosecuted by the Union through its
officials and recognized as such by the Company.10
Although there is absolutely no evidence that Adams was
guilty of any misconduct, Respondent's brief states that
Adams was discharged "for cause." The only particulariza-
tion of this contention is to be found in the statement that
"the evidence is replete that Adams was discharged only
because of his attitudinal problem as a probationary
employee." Adams' "attitudinal problem," as shown
above, was entirely confined to his efforts to assure the
processing of the Union's grievance on his behalf and,
since there is nothing in the Act which denies its protection
to a probationary employee,il the reference to Adams'
probationary status is irrelevant.
Adams' effort, in conjunction with the union officials, to
pursue the grievance concerning his wage rate constituted
concerted activity and Respondent's action in discharging
him for that effort was in violation of Section 8(a)(1) of the
Act.12 Since the grievance was filed by the Union and
Adams.' efforts were in aid of the Union's grievance,
Respondent's action in discharging him also violated
Section 8(a)(3) of the Act.13
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States ana tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair
to handle this one only because he was tied up in Boston in a Board matter,
I cannot regard Wyrebeck's testimony that he "decided to drop the
grievance" as a considered decision by the Union to abandon the matter. In
reaching this conclusion , I also take into consideration the statements of
Bartolomeo, when he authorized the filing of the grievance , concerning the
pay rates of returning employees as showing that the Union 's interest in this
matter was broader than the claim of Adams. Moreover , from Harmon's
call to Wyrebeck on Friday afternoon , informing him that Adams was at
that moment being discharged , it appears that the Company still regarded
the grievance as a vital one . In any event , it cannot be said that concerted or
union activity could lose its character in so casual a manner or that Adams'
activity, protected to this point, could lose its statutory protection in this
manner. Finally, the record is clear that Wyrebeck's action did not come to
Adams' notice until after he had been discharged.
ii Loose Leaf Metals Company, 181 NLRB 202, 206, in which a
probationary employee was discharged for a "bad attitude" in seeking
union aid to assert rights See also National Detective Bureau, Inc., 204
NLRB No. 7.
12 W Kelly Gregory, Inc., 207 NLRB No. 96.
13 North Shore Publishing Co., 206 NLRB No. 7.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices, I shall recommend that it cease and desist
therefrom and take affirmative action designed to effectu-
ate the purposes of the Act.
Having found that Respondent, by discharging George
R. Adams for engaging in activities protected by the Act
and to discourage his membership in the Union, commit-
ted unfair labor practices, I shall recommend that it offer
him reinstatement to the position he held on July 27, 1973,
or, if that position no longer exists, to a position
substantially equivalent thereto, without loss of seniority or
other rights and benefits, and that it make him whole for
any loss of compensation he may have suffered, computed
in the manner prescribed in F. W. Woolworth Company, 90
NLRB 289, and with interest as prescribed in Isis Plumbing
& Heating Co., 138 NLRB 716.
At the trial, in connection with its motion for summary
judgment, the General Counsel requested that "litigation
expenses" be assessed against the Respondent. These
motions were based upon the contention that, in view of
Beckman's admission that Adams had been discharged for
utilizing the grievance procedure, further defense by
Respondent would be "frivolous." While it has been noted,
above, that the facts herein preclude Respondent' s reliance
on certain cases involving individual employee activity, its
argument on the basis of those cases cannot be termed
"frivolous." Accordingly, on the basis of the facts alone,14
I shall not recommend an assessment of litigation
expenses.
Upon the foregoing findings of fact and upon the entire
record herein, I reach the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. At the time of the activities set forth in this Decision,
Clifford T. Beckman and Frederick W. Trombley were
supervisors of Respondent, within the meaning of Section
2(11) of the Act, and acted as its agents.
3. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
4. At the time of the activities set forth in this Decision,
Francis Bartolomeo, Raymond Bishop, and William
Wyrebeck were officials of the Union and acted as its
agents.
5. By discharging George R. Adams for engaging in
concerted activities for the purpose of mutual aid and
protection, Respondent interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in
the Act and committed an unfair labor practice within he
meaning of Section 8(a)(1) of the Act.
14 While the Board, in Tudee Products, Inc., 194 NLR3 1234, held that it
had authority to require a party to reimburse the Board for the expenses of
litigation where a frivolous defense is interposed-and it did so in that
case-this result was reached on the basis of a remand for that purpose
from the Court of Appeals for the District of Columbia (426 F.2d 1243, cert.
denied 400 U.S. 950). The Board, however, in its decision in Ex-Cell-O
Corporation, 185 NLRB 107, which was decided after the court decision in
the Tiidee Products case, stated its adherence, notwithstanding that decision,
to its earlier policy of not granting compensatory relief to the union and the
employees affected by a refusal to bargain. On the question of whether the
granting of such relief should turn on the quality of an interposed defense as
"frivolous" or "debatable," as suggested by the same court of appeals in
United Steelworkers [Quality Rubber Manufacturing Company, Inc] v.
G. By discharging George R. Adams for assisting the
Union in the prosecution of its grievance concerning his
wage rate , Respondent discriminated against him to
discourage his membership in, and activities on behalf of,
the Union and committed an unfair labor practice within
the meaning of Section 8(a)(3) of the Act.
7. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact , conclusions of law,
and upon the entire record , and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 15
Respondent , E. I. DuPont de Nemours & Co. (Doyle
Works), Leominster , Massachusetts , its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging any employee because he or she engaged
in concerted activities for the purpose of mutual aid or
protection.
(b) Discriminating against any employee to discourage
membership in Doyle Works Employees' Union, or any
other labor organization , by discharge or otherwise,
because he or she assisted such union in the presentation or
prosecution of a grievance.
(c) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of their
right to self-organization , to engage in concerted activities
for the purpose of collective bargaining and other mutual
aid or protection, or to refrain from any and all such
activities , except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized
by Section 8(a)(3) of the National Labor Relations Act, as
amended.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer to George R. Adams immediate and full
reinstatement to his former position or, if that position no
longer exists, to a position substantially equivalent to that
which he held immediately prior to July 27, 1973, without
prejudice to his seniority and other rights and privileges,
and make him whole for any loss of wages in the manner
set forth in the section of the Decision entitled "The
Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
payroll records , social security payment records, timecards,
personnel records and reports, and all other records
N.L.R.B., 430 F.2d 519, the Board held that such distinction would require a
"subjective determination" and become , in itself, "a matter of intense
litigation ." It appears, on the basis of this rationale, that any asseccment of
litigation costs would be contrary to Board policy . (See, on uiiis basic
question , Federal Prescription Service et at., 203 NLRB No. 145, and
Culinary Alliance & Bartenders Union , Local 703 v. N.L R.B., 488 F .2d 664,
(C.A. 9, 1973).)
15 In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
E. I. DUPONT DE NEMOURS & CO. 775
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its plant at Leominster , Massachusetts , copies
of the attached notice marked "Appendix." 16 Copies of
said notice , on forms provided by the Regional Director
for Region 1, after being duly signed by its representative,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by it to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order , what steps the
Respondent has taken to comply herewith.
16 In the event that 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED 'BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The trial held at Leominster , Massachusetts, on October 16
and 17, 1973, in which we participated and had an
opportunity to give evidence , resulted in a decision that, in
discharging George R. Adams on July 27, 1973, we had
committed unfair labor practices in violation of Section
8(aX3) and (1) of the National Labor Relations Act, as
amended, and this notice is posted pursuant to that
decision.
The National Labor Relations Act, as amended, gives
all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activities.
In recognition of these rights , we hereby notify our
employees that:
WE WILL NOT discharge any of our employees
because they engage in concerted activities for mutual
aid or protection or because they assist Doyle Works
Employees' Union, or any other labor organization, in
the presentation or prosecution of a grievance.
WE WILL offer George R. Adams immediate and full
reinstatement to his former job or, if this job no longer
exists, to a substantially equivalent position , without
prejudice to his seniority or other rights and privileges,
and make him whole for any loss of earnings he may
have suffered by reason of his discharge.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of
their right to self-organization, to form labor organiza-
tions, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any or all such
activities , except to the extent that such right may be
affected by an agreement requiring membership in a
labor organization as a condition of employment as
authorized by Section 8(aX3) of the Act.
Dated By
E. I. DUPONT DE NEMOURS
& Co. (DOYLE Wow)
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office,
Bulfinch Building, 7th Floor, 15 New Chardon Street,
Boston, Massachusetts 02114, Telephone 617-223-3300.