E I Dupont De Nemours And Co., Inc

National Labor Relations Board - Board Decisions

Apr 28, 1988

293 N.L.R.B. 896 (N.L.R.B. 1988)

896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I
E I Dupont de Nemours and Company , Inc and
Martinsville Nylon Employees ' Council Corpo-
ration i Cases 5-CA-18968 and 5-CA-19047
April 28, 1988
DECISION AND ORDER
13Y CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On July 20, 1988, Administrative Law Judge
Thomas A Ricci issued the attached decision The
General Counsel filed exceptions and a supporting
brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order and to adopt the recommended
Order as modified
The complaints allege that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by unilater
ally changing the terms and conditions of employ-
ment of certain of its employees who are represent-
ed by the Charging Party (the Union) Specifically,
the complaint in Case 5-CA-18968 alleges that in
June 1987 the Respondent unilaterally, and without
notice to or bargaining with the Union, transferred
clerical work from a higher paid employee in the
unit to a lower paid unit employee, and dealt di-
rectly with the employees in doing so The com-
plaint in Case 5-CA-19047 alleges that in July 1987
the Respondent unilaterally assigned nonunit work
to unit employees, again without notice to or bar
gaining with the Union The Respondent denies
having violated the Act in either respect, and as
serts as an affirmative defense that the cases should
be deferred to arbitration under United Technologies
Corp, 268 NLRB 557 (1984)
The judge first considered the merits and found
that the Respondent had not acted unlawfully He
also found that the cases should be deferred to ar-
bitration On both grounds, he dismissed the com-
plaints The General Counsel excepts to the judge's
findings on the merits and also to his finding that
the cases should be deferred For the reasons set
forth below, we agree with the judge that the cases
are deferrable 2
i The name of the Charging Party is misspelled in the judges decision
We correct the error
2 Accordingly we do not reach the merits of the complaints and we
do not rely on the judge s analysis of the merits Whether deferral is ap
propnate is a threshold issue that must be decided in the negative before
the merits of the unfair labor allegations are considered L E Myers Co
270 NLRB 1010 fn 2 (1984) See also Servomation Corp 271 NLRB
The collective bargaining agreement that is in
evidence expired by its terms on April 30, 1986
However, according to the testimony of Union
President Dean Goad, the parties have agreed to
continue that contract in effect on a day to day
basis, at least as of the time of the hearing Goad
also testified that the contract has (or had) a "sup
plement"-a new contract that was in effect
through August 31, 1987 (a date subsequent to the
actions alleged to be unlawful), and that the "sup-
plement" also continued on a day-to-day basis 3 It
is not clear from Goad's testimony whether the
"supplement" was simply an extension of the old
agreement or whether, after April 30, 1986, there
were two operational agreements-the old agree
ment, which had been extended on a day to day
basis, and the `supplement," which was effective
until August 31, 1987, and from day to day thereaf-
ter (The General Counsel's brief states that the
supplemental agreement extended the contract
through August 31, 1987, and thus indicates that
the former is the accurate characterization of the
two agreements) Whichever is the case, however,
the record evidence points to a single conclusion
that the provisions of the original contract had
been continued in effect by agreement of the par
ties, at least from day to day, throughout the
period in which the unfair labor practices are al
leged to have been committed 4
The contract contains a broad grievance-arbitra-
tion procedure Article XII, section 2, states that
the grievance procedure should be used `in the
event that a dispute or grievance shall arise be
tween the Company and the Union or any employ
ee " Article XIII, section 1, provides that
Any question as to the interpretation of this
Agreement or as to any alleged violation of
any provision of this Agreement which is not
otherwise settled to the mutual satisfaction of
the parties hereto, at the request of either
party shall be submitted to arbitration
Section 3 of article XIII provides that the arbi
trator's decision is final and binding on the Re-
spondent, the Union, and the employees 5
1112 1113 fn 7 (1984) Collyer Insulated Wire 192 NLRB 837 843
(1971)
3 The supplemental agreement is not in evidence and Goad did not
testify about its substantive terms
4 Arizona Portland Cement Co 281 NLRB 304 (1986) relied on by the
General Counsel thus is distinguishable In that case at the time the vio
lations were committed the collective bargaining agreement had expired
the parties had bargained to impasse and the employer had unilaterally
imposed its own grievance arbitration mechanism to which the Board
will not defer Here the contractual grievance arbitration procedure was
effective by mutual agreement at the time of the alleged unfair labor
practices
5 Except for grievance over promotions demotions terminations
transfers and discharges (not pertinent here) there are no time limits
Continued
293 NLRB No 109
E I DU PONT & CO 897
Although the contract thus provides for arbitra-
tion of disputes arising under it, it is not obvious
from the contract itself that it governs work assign-
ments The contract does mention work assign-
ments several times in other contexts, but does not
specifically address the Respondent's authority to
make or alter work assignments unilaterally, and
there is no management-rights clause that could
cover the subject by implication 6 However, earlier
in 1987, a dispute arose over the subject of unit em-
ployees' doing nonunit work on computers, and the
Union not only grieved the issue through three
steps of the grievance procedure, but also request
ed arbitration 7 It appears, then, that the Union and
the Respondent both consider issues regarding
work assignment to be subject to the grievance ar-
bitration process, notwithstanding the absence of
specific contractual language Moreover, arbitra-
tors frequently find that customs and past practices
may become part of the "law of the shop" and thus
enforceable through arbitration, even if they are
within which a party is required to file a grievance Once a grievance is
filed the Union normally is required to request arbitration within 30 days
following the Respondent s reply to the grievance However because no
grievances were filed in response to the actions at issue here this time
limit appears to be irrelevant Although the Respondent has not specifi
cally stated its willingness to waive any relevant timeliness requirements
for invoking the grievance arbitration process we infer from its consist
ent position that the cases should be deferred that it is willing to do so
Servomation Corp 271 NLRB 1112 (1984) In any event the General
Counsel does not oppose deferral on this ground
6 Art IV sec 3 cited by the Respondent refers to job classifications
and to job descriptions which are used by the Respondent in performing
job evaluations It does not in terms refer to work assignments
The General Counsel citing Blue Cross Blue Shield of Michigan 286
NLRB No 50 (Sept 30 1987) and United Technologies supra urges
that deferral is precluded because there is no contract clause provid
mg specifically that unfair labor practices are subject to arbitration
Contrary to the General Counsel s argument however the presence-
of language expressly empowering an arbitrator to resolve unfair
labor practice issues is not always a prerequisite to deferral The
Board will defer unfair labor practice allegations to the arbitral proc
ess as long as it is reasonable to anticipate that resolution of the con
tract dispute would also resolve the unfair labor practice dispute In
Blue Cross the Board did not defer because the contract lacked Ian
guage directly concerning discrimination in violation of the Act and
because the parties agreed that the employers conduct did not other
wise breach the contract (On the other hand in United Technologies
the presence of contractual language specifically listing discnmina
tion under the Act as subject to the arbitration procedure supported
the Board s decision to defer because the unfair labor practice dis
pute was clearly covered by the contract )
In this case the only question is whether the Respondent was em
powered by contract to make the unilateral changes it did or if not
whether it violated Sec 8(a)(5) when it made those changes Thus
even without contract language prohibiting these particular alleged
violations of the Act the issue before the arbitrator necessarily will
be the same issue raised in the complaints Accordingly in contrast
with Blue Cross the absence of language concerning these unfair
labor practices does not prevent deferral in this case
The matter apparently was settled and therefore never was arbitrated
Goad attempted to distinguish the earlier case from the ones before us
on the ground that the instant cases involve work assignments made by
the Respondent whereas in the earlier case unit employees had ven
tured into doing nonunit work on their own We do not find the differ
ence dispositive particularly because at least after the grievance was
filed in the earlier case the employees were doing nonunit work with the
Respondents knowledge and approval
not a part of the written contract, and the Supreme
Court has recognized arbitrators' authority to do
so 8 Finally, where suits to compel arbitration
under Section 301 are concerned, the Supreme
Court has held that arbitration should be ordered
"unless it may be said with positive assurance that
the arbitration clause is not susceptible of an inter
pretation that covers the asserted dispute Doubts
should be resolved in favor of coverage " Steel-
workers v Gulf Navigation, supra, 363 U S at 582-
583 9 In view of all the foregoing, we find that, al-
though an arbitrator might find the disputes here
not to be arbitrable, the likelihood that they are ar-
bitrable is sufficiently great that the absence of spe-
cific contract language on the subject should not
preclude deferral
Under all the circumstances, we find these cases
suitable for deferral Thus, the parties have had a
long and productive collective bargaining relation-
ship,1 ° there is no claim of employer animosity to
the employees' exercise of protected rights,' i there
is a broad arbitration clause , which at least argu
ably covers the disputes at issue , the Respondent
apparently is willing to arbitrate the disputes, and
because the disputes center around the Respond-
ent's contractual authority to assign work to unit
employees, they are eminently well suited to reso-
lution by arbitration 12 Accordingly, we shall defer
both cases to arbitration and dismiss the com-
plaints 13 However, we shall modify the judge's
recommended Order to retain jurisdiction, as is our
usual practice, so that we may further consider
these matters if it is alleged that the dispute has not
promptly been settled or arbitrated, or that the
grievance-arbitration procedure has not been fair or
8 Steelworkers v Gulf Navigation 363 U S 574 581-582 (1960) see also
Elkoun & Elkoun How Arbitration Works 437-446 (4th ed 1985) Here
for example there is evidence that the Respondent has bargained with
the Union over the job descriptions of some of the affected employees
An arbitrator might find such a practice binding on the Respondent
9 The Board s prearbitral deferral policy under Collyer and United
Technologies supra like the resolution of disputes under Sec 301 of the
Taft Hartley Act is premised on the Congressional policy favoring reso
lution of labor disputes through arbitral processes set forth in Sec 203(d)
of the Taft Hartley Act
10 The Union has represented the Respondents unit employees for
some 44 years
11 No violations of Sec 8 (a)(3) or independent violations of Sec
8(a)(1) are alleged
Although the General Counsel does not oppose deferral on this basis
the fact that the complaint in Case 5-CA- 18968 contains a direct dealing
allegation does not preclude deferral in that case The direct-dealing
count is part and parcel with the unilateral action allegation See E I du
Pont & Co 275 NLRB 693 695 (1985)
12 Collyer Insulated Wire supra 192 NLRB at 842
13 There is no ment to the General Counsel s contention that deferral
is inappropriate because no grievance has been filed It is well settled that
the filing of a grievance is not a prerequisite to deferral Blue Cross Blue
Shield of Michigan supra fn 6
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
regular or has reached a result that is repugnant to
the Act 14
Virginia I find that the Respondent is an employer
within the meaning of the Act
ORDER
The complaints are dismissed, provided that
Jurisdiction of these proceedings is retained for
the limited purpose of entertaining an appropriate
and timely motion for further consideration upon a
proper showing that either (a) the disputes have
not, with reasonable promptness after the issuance
of this Decision and Order, either been resolved by
amicable settlement in the grievance procedure or
submitted promptly to arbitration, or (b) the griev-
ance or arbitration procedures have not been fair
or regular or have reached a result that is repug
nant to the Act
14 The Respondent must of course waive any timeliness provisions of
the contractual grievance arbitration clauses so that the disputes may be
processed in accordance with the following Order
Jasper C Brown Esq for the General Counsel
Allan G Burton Esq of Wilmington, Delaware, for the
Respondent
Kenneth Henley Esq of Philadelphia, Pennsylvania, for
the Charging Party
DECISION
STATEMENT OF THE CASE
THOMAS A Ricci Administrative Law Judge A hear
ing in this proceeding was held on April 12, 1988, at
Collinsville Virginia, on complaints of the General
Counsel against E I Dupont DeNemours and Company,
Inc (the Respondent or the Company) One complaint
issued on August 28, 1987 on a charge filed by Martins
ville Nylon Employees Counsel Corporation, here called
the charging party or the Union on June 29 1987 The
other complaint issued on September 30 1987 on a
charge filed by the same Union on August 11, 1987
Each of the complaints alleges that the Respondent un
lawfully refused to bargain with the Union in violation
of Section 8(a)(5) of the Act Briefs were filed after the
close of the hearing by the General Counsel and the Re
spondent The Union did not file a brief after the close of
the hearing
On the entire record and from my obervation of the
witnesses I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent a Delaware corporation with an
office and place of business in Martinsville Virginia is
engaged in the manufacture of continuous filament nylon
yarns During the 12 months preceding issuance of the
complaint, a representative period in the course of its
business it purchased and received at its Martinsville fa
cility products goods and materials valued in excess of
$50 000 directly from points located outside the State of
II THE LABOR ORGANIZATION INVOLVED
I find that Martinsville Nylon Employees Council
Corporation is a labor organization within the meaning
of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
Each of the two complaints here considered say the
Company assigned work to employees without first bar
gaining with the Union about those assignments, and
therefore refused to bargain as the statute requires The
major part of the record deals with work assignments to
two employees-called electronic mechanics-in the
complaint I will consider that matter first The Union is
the bargaining agent in this plant of the Respondent for a
unit consisting of about 1700 employees Exactly what
the precise classifications are, or job titles, is very con
fused and not at all clear on this record But from the
witnesses talk of the kind of work performed throughout
the plant, and their repeated references to a great variety
of technical work performed it is clear many of the em
ployees are engineers electricians, mechanics, technical
repairmen, etc A clear understanding of exactly what
kind of work many of them perform is not helped by the
look at the last contract between the parties-the one
which expired on April 30, 1986 and has not yet been
renewed As to the kind of employees covered by that
contract-i e those included the bargaining unit-all it
says is the unit of employees represented by the union
shall be the employees at the plant
There is another reality that sheds some light on the
real issue of this case This plant is an outstanding exam
pie of the modern technological age Computers mecha
nized machines electronic gadgets automatic processing
equipment recordkeeping devices of all kinds, are used
all over the place And of course for the installations
maintenance , and operation of all this new styled equip
ment, there are specially trained and qualified people to
work The other varying nouns used by the witnesses
while referring to this or that kind of employee are un
ending It is simply not possible in the light of this kind
of testimony to say exactly what category of employees
did this or that kind of work in the large group of em
ployees
In early 1986, the Company decided to start using still
another kind of computer or technical recordkeeping ma
chine It was intended to improve the flow of work
throughout this very large plant, to keep more accurate
records of quantity of work performed, to record errors
to be corrected, and to permit work to be performed
more efficiently, possibly with fewer employees One of
the objects to be achieved by the new technical method
was a reduction of about 10 employees The new equip
ment was called Bar Code
There was talk between management and the Union
about the planned installation of that machine The union
agents were understandably concerned about the possible
discharge of employees and the managers were sensitive
to that interest of the Union The parties met a number
E I DU PONT & CO
of times during 1986 to discuss that very subject, as the
witnesses all agreed at the hearing The Union s position
was that if the new machine resulted in there being any
unneeded employees the reduction in force should be ac
complished by attrition meaning that the staff would
be reduced only as employees died , retired , or otherwise
left of their own volition In a plant of 1700 employees
such a solution was a perfectly likely one The Company
refused to let matters stand that way, and insisted that
discharge might be necessary As it developed, the use of
the Bar Code machine did not result in the reduction of
any employees No one has been discharged, and no
one s pay was reduced at all in consequence of the use of
the Bar Code
Two men were trained in the use of this Bar Code for
2 or 3 days by agents of the Company which was selling
the new equipment to the Respondent The original
charge , filed on June 29 1987, says the Respondent com
mitted an unfair labor practice by loaning electronic
craftsmen to the resource group " It is not possible on
this record to say just what employees were included in
the resource group The first complaint which issued
on August 26, 1987, says nothing about that particular
charge The second charge , filed on August 11, 1987,
says the Company illegally ` unilaterally changed the
terms and conditions of employment by requiring the
performances of Bar Code ' work without first bargain
ing with the union With this, the second complaint,
issued on September 30, 1987 , alleges that the Respond
ent `Transferred and assigned the duties concerning the
use, repair and maintenance of Bar Code machines to
unit employees , specifically the electronic mechanics,
whose duties had not previously encompassed such re
sponsibilities
There is no evidence in this entire record of work of
that particular machine being transferred from one
group of employees to any other There is no evidence
to indicate such work had previously been encom
passed" in any other employees responsibilities There
could be for that particular machine had not been in the
plant before
At one point , towards the start of the hearing, the
General Counsel was asked what the factual statement
by one of his witnesses had to do with the complaint
Q What is the unfair labor practice that this
man s testimony helps prove?
MR BROWN Your Honor , we re getting to that
point He shows that the work was actually done I
have other witnesses who will-
JUDGE Ricci I was asking about this man s testi
mony What does his testimony relate to unfair
labor paractice
MR BROWN Your Honor this is part of the
puzzle I'm trying to piece together here
Later the General Counsel was asked to explain his
position
JUDGE Ricci And is the General Counsel argu
ing that the illegality was to have given the work to
one category instead of the other one9
MR BROWN No, Sir
899
Following this comment counsel for the Union tried
to explain
MR HENLY [Counsel for the Charging Party] If
I may state my position since the Charging Party
does have a roll in the hearing It there had been
negotiations as there should have been under the al
legations of the complaint it may well have been
that the work would have eventually wound up
with the instruments mechanics as opposed to the
electronic craftsmen who the company unilaterally
gave the work to
To say the Company could as well have assigned a
particular job to some other category of technical ex
pens, is not to speak of any unfair labor practice at all
The Union chose not to file a brief explaining exactly
what it is that the Company is now charged with having
done that amounted to a violation of the statute'
As best I can understand the General Counsel s
theory of complaint is that the Respondent chose two
electronic mechanics to start the work on the new ma
chine it was going to use without the prior approval of
the Union Does a company with such a large a comple
ment of employees- 1700 (including, as one witness said,
78 technical , electrical mechanical experts ), a company
that has brought in new, advanced , technical computers,
programers , recording machines , and had this or that
mechanical expert start work on them , a company whose
technically trained employees are not clearly distinguish
able by their skills, experiences , and training, have to dis
cuss with the union just what employees among the
great many qualified ones should be asked to do a par
ticular job that fits the qualifications of probably all of
them? Before answering yes to the question in his
brief the General Counsel details the friction that has
marked the relationship between this Company and this
Union for over a year Despite the expiration of their old
contract the parties have not met once in any effort to
restore harmonious relations for over a year Instead
various unfair labor practices have since been filed by
the Union against the Respondent, many of them in
process of consideration in other proceedings The Gov
ernment s brief then says the earlier complaints now
before me must be appraised in this context , that is in
the light of the many other charges-none as yet proved
in fact I see this as virtual admission that standing
alone the facts shown in this case do not prove any
prima facie case of wrongdoing by the Respondent
It is a fact that in the process of installing the new Bar
Code machine , management discussed at the Union s re
quest , the possibility of a reduction in force and the pos
sibility that the new machine might have a damaging
effect on the employees as a whole That the Company
did all this correctly is not disputed Was it obligated to
discuss with the Union just which technicians should be
chosen to work on the new machine which clearly fell
within the class of machines these employees had
worked on? On this record I think not I shall recom
mend dismissal of the first complaint
We come to the second complaint There is a produc
tion planning department , where a number of clerks
900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work They keep records of the work in detail as it pro
gresses throughout the plant During 1987-Deborah
Bryant, a clerical employee worked in that department
She was classified as a Class C employee which is
paid at a certain hourly rate In the room next to her
worked two other clerical employees, Carnco and Eagle
They too kept detailed records but they fall in a class
called Level A, meaning they were paid at a higher
hourly rate In June 1987 Bryant did not have enough
work to keep her busy all day Her work had simply
fallen off There was talk of eliminating her job altogeth
er and letting her go She was worried So she talked, as
she testified to Michael Wade, who was in charge of all
the planning departments She asked was there was any
other work she could do to keep her job Wade told her
No'
In the room next to her, Carrico and Eagle were over
loaded with work and doing overtime It seems some
other employee had quit and more work was given to
these two men A few days after her first appeal to the
supervisor, Wade, again as Bryant testified, Wade told
her that Carnco would show her how to do some more
work That same day Carrico explained to Bryant how
to record miscellaneous orders and she started doing
that in her spare time Bryant said at the hearing that
that work was similar to other work she had per
formed In fact, the recordkeeping she started doing,
with Carnco always checking it after she had finished,
fitted into a phrase in her then ,lob description- com
plete and post data ' With this small amount of added
work, Bryant s job was saved After a few months in
February 1988 Bryant was transferred to another job
where she is still at work
Bryant also testified this was not the first time she had
asked for additional work It did not require overtime on
her part She also said the added work occupied about 4
hours of her time each week Carnco who also testified
said it took only 5 minutes to show her how to do that
that he always checked what she did too because it re
mained his responsibility to see that there were no mis
takes and that on an average Bryant spent between 1
1/2-2 hours a week doing that work With each of these
two employees having an axe to grind, I would split the
difference between them and say Bryant did 3 hours of
work weekly on that added work
Carnco and Eagle were class A workers How
much class A and class C were paid no one bothered to
bung out at the hearing Certainly the difference could
not have been great And surely, whatever the difference
in their weekly pay may have been, had Byant been paid
A level for that little work she would have earned
about three fortieths of the difference
Bryant also said she did not complain to the Union
about any underpayment nor to her supervisor She was
glad to add a little security to her job In fact the Union
never said a word to anyone about this help by manage
ment to Bryant until they filed a charge in this case
And, of course, as in the case of the employees who are
unilaterally' asked to work on the Bar Code machine,
the Union filed no grievance of any kind
Did the Respondent unilaterally transfer work from a
higher paid employee to a lower paid one thereby vio
lating Section 8(a)(5) of the Act? Did it underpay Bryant
for the 3 hours a week she did and violate Section
8(a)(3) of the Act? A unilateral change to be unlawful,
must be material substantial, and significant Rust Craft
Broadcasting, 225 NLRB 327 (1976) The above de
scribed incident was not I shall recommend dismissal of
this complaint also
There is a second ground for dismissal of both these
two complaints Although the last collective bargaining
agreement between the parties has not been renewed, the
parties have agreed that it remains in effect from day to
day It contains the clearest arbitration procedures If
ever a dispute fitted into the area intended for arbitra
tion, it is the one shown in each of these two complaints
Both complaints are dismissable on the basis of Collyer
Insulated Wire 192 NLRB 837 (1971) and United Tech
nologies Corp, 268 NLRB 557 (1984)
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed'
ORDER
I recommend that both complaints be dismissed
'If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
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 pur
poses