E. I. du Pont de Nemours & Co.

National Labor Relations Board - Board Decisions

May 29, 1943

49 N.L.R.B. 1362 (N.L.R.B. 1943)

In the Matter of E. I. DU PONT DE NEMouRs & COMPANY and UNITED
MINE WORKERS OF AMERICA, DISTRICT No. 50
Case No. C-2580. -Decided May 09, 1943 .
DECISION
AND
ORDER
On April 8, 1943, the `Trial Examiner issued his Intermediate Re-
port in the above-entitled proceeding, finding that the respondent,
E. I. du Pont de Nemours & Company, had engaged in and was en-
gaging in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action as set
out in the copy of the Intermediate Report attached hereto. There-
after, the respondent filed exceptions to the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report -with'-a. -brief in support thereof. The Board
has considered the rulings made by the Trial Examiner at the hear-
ing and finds that no prejudicial error was committed. The rulings
are hereby affirmed.
Pursuant to notice, a hearing for the purpose of oral argument
was held before the Board-at Washington, D. C., on May 25, 1943.
Counsel for the respondent, the Agency and Works Board, and the
Union participated in the oral argument.
The Board has considered the Intermediate Report, the respond-
ent's exceptions and brief, and the entire record in the case and
hereby adopts the findings, conclusions, and recommendations of 'the
Trial Examiner.
ORDER
Upon 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, its agents, officers, successors,` and assigns shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Deep
Water Industries Collective Bargaining Agency and its operating
49 N L R. B., No. 192.
1362
E'. I. DU PONT DE NEMOU'RS & COMPANY 1363 '
instrumentality, Dye `Forks' Industries Labor Board, or with the
formation or administration of any other,labor organization of its
employees, and from contributing financial or other support to the
above-named organization or to any other labor organization of its
employees ;
(b) Recognizing or in any manner dealing with Deep Water In-
dustries Collective- Bargaining Agency and its operating instru-
mentality, Dye Works' Industries Labor Board, as the representative
of its employees or any of them, for the-purpose of dealing with the
respondent concerning grievances, labor disputes, wages, rates of
pay, hour's of employment, or other conditions -of employment; - ,
(c) In any like or related 'manner interfering with, restraining,
or coercing its employees in the exercise of the right to self-organiza-
tion, to form, join, or assist labor organizations, to bargain col-
lectively through representatives of their own choosing, and to -
engage in concerted activities, for the purposes of collective bar-
gaining or other mutual aid or protection, as guaranteed in Section, 7
of, the Act.
2' Take the following affirmative action which will effectuate the.
policies of the Act :
(a) Withdraw all recognition from and completely disestablish
Deep Water Industries Collective Barganing Agency and its operat-
ing instrumentality, Dye Works' Industries Labor Board, as the
representative of its employees or any of them for the purpose of
dealing with the respondent concerning grievances, labor disputes,
rates of pay, wages, hours of employment, or other conditions of
employment ;
(b) Post immediately on each of its bulletin boards in its plant at
Deep Water, New Jersey, and maintain for a period of not less than
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 paragraphs
1 (a), (b), and (c) hereof; and (2) that it will take the affirmative
action set forth in paragraph 2 (a) hereof;'
(c) Notify the Regional- Director for the Fourth Region' (Phila-
delphia,, Pennsylvania) in writing within- ten (10) days from, the
date of this Order what steps the respondent ha's taken to comply
herewith.
INTERMEDIATE' REPORT
Mr. Geoffrey J. Cunniff and Mr. Harry G. Carlson, for the Board.
Mr. Charles, A. Wolfe, of Philadelphia, Pa., for the, respondent.
Mr. Yelverton Cowherd, of Washington, D. C., and Mr. Elwood Moffett, of
Wilmington , Delaware, for the Union.
Mr.' H. Norris Mangan, of Salem, New Jersey , for the intervenor.
531647-=-43-v61. 49-87
1364 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
STATEMENT OF THE CASE
Upon an amended charge duly filed on September 30, 1942, by United Mine-
Workers of America, District No. 50, herein called the Union, the National
Labor Relations Board, herein called the Board, by its acting Regional Director
'for the Fourth Region, (Philadelphia, Pennsylvania), issued its complaint dated
February 17, 1943, against E. I. du Pont de Nemours & Company, a corporation,
herein called the respondent, alleging that the respondent had engaged in and
was engaging in unfair, labor practices affecting commerce within the meaning
of Section 8 (1) and (2) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accom-
panied by notice of hearing were duly served upon the respondent, the Union,
and Deep Water Industries Collective Bargaining Agency, herein called the
Agency. - -
- With respect to the unfair labor practices the complaint alleged in substance
that the respondent: (1) in 1934 initiated Dye Works Employees' Representa-
tion Plan, herein called the Plan, and its operating instrumentality, Dye Works,
Council, herein called the Council, and until 1937 fostered, dominated, and
financially supported the Plan and the Council; (2), from April through July
1937 initiated the Agency, and its operating instrumentality, the Dye Works'
Industries Labor Board, herein called the Works Board, described as "a suc-
cessor to, an,extension of and a similar identify to the Plan and its Council,"
and thereafter fostered and financially supported the Agency and the Works •
Board; (3) interfered with, restrained, 'and coerced its employees by -the
statements in September or October, 1937 and again in February and March,
1942, of certain named supervisors. - -
On February 27, 1943, the respondent filed its answer in which it admitted that
it "assisted its employees in the formulation of the said Plan and its Council" -
and that it supported the Plan and the Council financially, but denied that it
ever dominated the Plan or, the Council, or that it ever initiated, fostered, or
financially supported the Agency and also denied that the Agency, together with
,its Works Board, was an extension of the Plan and its Council. The answer,
likewise denied any interference, restraint, or coercion of its employees. •
On February 27, 1943, the respondent filed a motion, and shortly thereafter a
supplemental motion, requesting a postponement for 6 months of the hearing which
originally had been scheduled for March 4, 1943, on the ground that the con-
templated hearing would interfere with the war production work of the respond-
ent's Deep Water plant, and because the respondent and its counsel required addi-,
tional time to prepare its defense. The, motion also requested 'that the place
of the hearing be changed from Wilmington, Delaware, its origin ally'scheduled
location, to Deep Water, New Jersey, the site of the respondent's plant involved'
in this proceeding. By orders of the Acting Regional Director the motions were
granted in part, in that the hearing was postponed to March 29, 1943, and the
place of the hearing shifted to Salem, New Jersey, a town 9 miles from Deep
Water, New Jersey.
Pursuant to notice,-a hearing was held on March 29, 30, and 31, 1943, before
Will Maslow, the Trial Examiner duly designated by the Chief Trial Examiner.
At the' commencement of the hearing, the Agency and its Works Board moved
to intervene. This, motion was granted. Counsel for the intervenor then moved
that the hearing be postponed for 30 days, because he had been engaged in.the
trial of a,homicide case which began on March 22 and finished on March 25, 1943,
and needed, according to a doctor's certificate attached to the motion, 2 weeks
rest The motion was denied, because the intervenor had been served, with, a
copy of the complaint around February 18, 1943, and therefore had sufficient
I
E. I. DU PUNT DE NEMOURS & COMPANY 1365
time to procure other counsel, and because its application for postponement was
not timely, since it could have been filed on March 11, 1943.
All parties were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties.
At the close of the Board's case the attorney for the Board moved to dismiss
that portion of the complaint which alleged interference with, restraint, and
coercion by means of the statements of various supervisory employees. The
motion was granted. At the close of,the hearing the attorney for the Board
moved to amend the complaint to conform to the evidence adduced in order
to eliminate insubstantial variations. This motion was granted.
All parties waived oral argument before the Trial Examiner and were given
until April 7, 1943, to file briefs. The attorney for the Board filed a memorandum
of law at the close of the hearing. The respondent on April 7, 1943, notified the
undersigned that it was not filing a brief.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT 1
The respondent is a Delaware corporation operating 79 plants in 27 states,'one
of the plants being located in Deep Water, New Jersey, herein-called the plant,
where it is engagedein the manufacture, sale, and'distribution of chemical prod-
ucts. During 1942 the respondent purchased more than $1,000,000 worth of raw
materials, of which about 90 percent was shipped to the plant from points out-
side the State of New Jersey. During the same period, the respondent manu-
factured at the plant more than $1,000,000 worth of finished products, of which
about 90 percent was shipped from the plant to points outside the State of.New
Jersey. The parties stipulated that the respondent is engaged in commerce
within the meaning of the Act.
At the time of the hearing the respondent employed about 6200 employees in
the plant. t
II. THE ORGANIZATIONS INVOLVED
United Mine workers of America, District No. 50, and Deep Water Indstries
Collective Bargaining Agency and its`operating instrumentality, Dye Works'
Industries Labor Board, are each labor organizations. Dye Works Employees'
Representation Plan together with its operating instrumentality, Dye Workers
Council, was a labor organization.
III. THE UNI+_1IR LABOR PRACTICES
A. The Plan and Ike Council
In 1919 the respondent established an employees representation plan at the
plant The governing body of this plan was a "Works Conference " composed of
I The findings in this section are based upon a stipulation of the parties.
The findings in this section are based upon documentary evidence and the undisputed
testimony of the, present and -former'president of the Works Board. The respondent and
the intervenor called no witnesses The attorney for the respondent in explaining Its.famlure
to do so stated : "We might call some witnesses . . . but it seems to us there are really no
factual Issues involved . . . the real question is what is the significance of the, facts devel-
oped by the Board; and are they sufficient as a matter of law, to warrant the granting of
the relief prayed for In the complaint.".-
I
1366 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I
12 members elected by the employees and 8 appointed by the respondent. This
plan remained in effect until 1934 when a new organization entitled the "Dye
Works Employees' representation Plan," the governing body of which was
entitled the "Dye Works Council," herein called the Council, was established
by the respondent'
The Council consisted of 12 employee representatives elected for 2-year; terms,
each of whom represented a voting division corresponding to "established de-
partmental lines" of the plant. A representative was required to be a citizen and
to have had at least 1 year's continuous service with the respondent. The coun-
cilmanic elections were held each October and November in the plant, half of the
representatives being elected annually. Membership in the Plan was automatic.
No dues or other methods of raising funds was provided for by the Plan and
consequently all of its expenses were borne by the respondent. There was no
provision for general membership meetings, the participation of the employees
being limited to voting at the annual nominations and elections. The Plan or
the Council never signed a collective bargaining agreement with the respondent.
The Council met monthly during working hours in a so-called conference room
in the administration building, provided by the respondent. The minutes of
the Council meetings were reproduced by the respondent, posted on its bulletin
boards throughout the plant, and in addition distributed to the employees.
representatives were reimbursed by the respondent for the time spent on Council
business.
The Plan provided- that the management of the respondent' should -appoint
., consultants" who would respond to the request of any representative for
consultation or who at the request of the Council would attend the meetings
"foi the purpose of furnishing information and discussing matters of mutual
employee-Company interest." "Joint Investigation Committees," consisting of
an equal number of Council members and managerial representatives, were also
provided "for the consideration of matters of mutual employee-Company interest
requiring information in addition to that available and furnished the Dye Works
Council by the consultants " No amendment, alteration, or repeal of the pro-
visions relating to the consultants or joint investigation committees was possible
except after submission to a Joint Investigating Committee and the approval of
the plant manager. In the event that the plant manager and the Council could
not agree upon any such change the matter had to be submitted to arbitration.
B The Agency and the Works Board
On April 28, 1937, shortly, after the decision of the United States Supreme Court
in N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U. S. 1, William Kirk, then
assistant plant manager, gave John i Barnhill, chairman of the Council, a copy
of a resolution adopted by the respondent's executive committee. The resolution
read :
RESOLVED, that the following letter to the General Managers of the Industrial
Departments and Directors of the Chemical and Engineering departments,
outlining the Company's policy with reference to the National Labor Rela-
tions Act, be approved, and that the Secretary be requested to send same
to the aforesaid General Managers and, Directors for transmission to the
Plant Managers and by the latter to-the Works Councils:,
"We believe that the Employee representation Plans having only elected
members are generally in accordance with the provisions of the National
' In DuPont v. N. L. R. B , 116 F ( 2d) 388 ( C. C. A. 4 , 1940 ), the court declared that, the
"Works Council" at the respondent 's Belle , - West Virginia , plant , "was part of aq employees
representation plan devised and suggested by petitioner [ the respondent] in all of its plants."
E. I. DU PONT DE NEMOURS & COMPANY 1367
Labor Riations Act, known as the "Wagner Act " Each. Plan should be care-
fully reviewed by the Councils in the light of the Act and the recent
decisions of the Supreme Court. Whatever change is made in those plans,
however, or whatever system of collective bargaining is adopted, must
be the choice of the employees themselves. The Company cannot participate
in any way in promoting them or administering them, but Representation
Plans themselves, organized and administered entirely by the employees,
are consistent with the Act.
"The- Act states • that the representatives of a majority of the employees
-in a collective bargaining unit shall be the exclusive representative of all
the employees in this unit on questions of rates of pay, wages, hours of
employment or other conditions of eniploynient. At the same time the
Act permits the Company to receive and hear the grievances of individuals
or minority groups, and the Company will continue to follow this policy.
"It is suggested that those Councils having appointed representatives
would be wise in bringing about a change so that all Councils have only
elected members. We feel that the wholly elected Council is consistent
with the Act, and we will continue to deal ivtth elected Councils, as in the
past, where we have reason to believe the Council represents a majority.
"The Act does not compel any employee to join a union or any other
labor organization but leaves the employees entirely free to join or not to join,
and•therlawrdoes not, require. either,- the, closed shop or the cheek-off.
"In accordance with its long established policy, and in conformance with
the Act, the Company will not discriminate for or against employees by
reason of their membership or non-membership in a union or in any other
organization.
"It is our feeling that you should notify the Councils as to,the above
points.
"It is proper for the local management to answer questions which em-
ployees may ask concerning the status of the plan or any feature of the
act." [Italics added.]
Barnhill testified that Kirk at that time told him that the respondent could
no longer negotiate with the Council. Barnhill conferred again with Kirk
about a week later and stated that in his opinion the Council could continue
without reorganization. Kirk allegedly insisted, however, that, because of the
financial assistance the respondent was extending to the Council, the respondent
would no longer negotiate with it. There was, however, no announcement by
the respondent to its'employees•of-this,new policy.
The Council submitted the problem to a committee of its members and then
determined to set up "an organization to conform to the Wagner act" The
Council approached a local attorney and with his help prepared the constitution
of a new organization, to be entitled Deep Water Industries Collective Bar-
gaining Agency. It then prepared and had printed 5000 booklets containing the
constitution, 5500 application-for-membership cards, and 5000 copies of a letter
to the employees' These printed application cards, letters, and constitutions
were given to the 12 representatives and by them distributed among the em-
ployees in their respective constituencies. Thus Barnhill distributed about 300
4 The Council had no funds at that time, but, according to Barnhill , the 12 Council mem-
bers agreed to pay for the printing themselves, in the event that they were unsuccessful in
their effort to create the Agency. This bill amounted to $108. Barnhill testified also that
their counsel was retained on a contingent basis, his fee to be paid by the Agency, if and
when established.
1368 DE'C'ISIONS OF, NATIONAL LABOR RELATIONS BOARD
sets of the Agency literature to the employees in, his voting division and collected
the application fees in the plant.
One sentence on the application card read :
"I further agree to support my present representative under the by-laws
until the expiration of his term."
The letter to the employees stated :
Fellow-Employee of Dye Works and Associated Units:
The attached pamphlet represents an Employees' Collective Bargaining
Agency that is believed to meet the requirements of the "Wagner Act," under
which it is necessary for all forms of Ernployees',Collective Bargaining Me-
diums to operate self-sustaining.
In order to meet these requirements it will be necessary to charge a
nominal fee to defray the operating expenses. In the attached pamphlet of
By-Laws, there has Been specified a 250 application fee and 10¢ per month
which is believed to be adequate to cover the necessary operating ex-
penditures.
It is entirely optional with you whether you wish to adopt this Plan as
your Collective Bargaining Medium. Ilowevei, by your approval of this
Plan you can be assured of the continuation of a long-enjoyed relationship.
The Plan provides a workable, understanding, legal agreement between em-
ployer and employee, administered by your fellow-employees, as your
representatives, who-have in the past brought about satisfactory adjustments
of any number of individual grievances. In addition. your representatives
have been instrumental in obtaining the proper solutions to collective
problems of major importance.
The Plan herewith submitted, with your support, and operated in accord-
ance with the By-Laws, without question, will establish a most effective
means of collective bargaining.
Please retain membership card until called for by your representative
or the properly authorized person.
ORGANIZATION COMMITTEE
DEEP WATER INDUSTI'.IES COLLECTIVE BARGAINING AGENCY.
[Italics added.]
The constitution of the Agency provided that it should be ' administered" by
the Works Board. It fixed the 'initiation fee as 25 cents and the dues at 10
cents a mouth. Membership was limited to employees of the plant and ter-
minated upon severance of employment. The Works Board, like the Council, con-
sisted of representatives, from various voting divisions, nominated every Octo-
ber and elected.every November, who•were'to'serve"for 2 year terms, half.`of'this'
number to be elected each year. The qualifications for representatives were
substantially the same as those for representatives of the Council. There was
again no provision for regular meetings of the members of the Agency, although
such meetings could be called by the president of the Works Board with the
consent of 2/3 of the Works Board or upon the written request of 1/4 of the
members of the Agency. The Works Board was empowered to sign a contract
with the respondent binding upon the members of the Agency, except that upon
the petition of 25 percent-of its members, the contract had to be submitted for
ratification -to,the full membership.
Barnhill testified that the term "representative" referred to the representative of the
Council.
E. I. DU PONT DE I;ENIO URS & COMPANY 1369
On June 16, 1937, the Council held its final meeting. which took place in the
conference room in the administration building from 5: 30 to 6: 15 p. m., 11 of
its 12 members being present. The minutes describe a session devoted to dis-
cussion and consideration of such problems as disability wages, the price of
milk, leaves of absence for employees attending National Guards encampments,
the respondent's "suggestion plan," repair of nearby roads,, and the wage in-
centive plan. The minutes conclude :
"At this juncture, Chairman, Barnhill, explained that under provisions
of the "Wagner Act," "Works Councils" and other such forms of. employee
representation are not legally recognized, and any bargaining agency for
the benefit of the employees must be totally free from Company support in
every respect, so that any such bargaining agency for the employees of the
Dye Works and Associated Plant Units must be self-sustaining. For this
reason, it is necessary that this Works Council must be immediately dis-
solved and replaced, by a collective bargaining agency organized by the
employees in accordance with the Wagner Act. Mr. Barnhill then calls
for such motion for dissolution.
Mr. Emmel made the following motion :
"I make a motion that this Dye Works Council no longer be considered
the bargaining agency for the employees of the Dye Works and Associated
Units, and that the said Dye Works Council be disbanded forthwith."
The motion was seconded by Mr. Combs and unanimously carried.
Mr. Emmel made an additional motion as follows : i
"I make a motion that the unfinished problems under consideration, by
committees of the dissolved Dye Works Council shall be referred to such
agency as shall be approved and established by the employees of the Dye
Works and Associated Plant Units as their collective bargaining agency "
Motion was seconded,by Mr. Hubert and unanimously carried."
Mr. Barnhill then stated the following :
"In accordance with motion made, I hereby declare the Dye Works Council
dissolved and to no longer act as the collective bargaining agency for the
employees of the Dye Works and Associated Plant Units and will so notify
Management';
After a "recess" of 20 minutes, the same 11 Council members assembled in
the, same room and conducted an "organization meeting" of the Agency. It was
reported that 3807 employees, constituting 826 percent of those eligible for
membership, had signed membership cards "signifying their support of their
former representatives as members of the [new) governing body." the Works
Board. Barnhill, chairman of the Council, was then elected president, W Ward
Weatherby, vice president, and Mulford Emmel, secretary-treasurer, of the
Works Board. The group then resolved that the Works Board meet monthly
in the-administration building of the plant and appointed a committee to nego-
tiate a collective agreement with the respondent. The meeting adjourned at
7:50 p. m.
The Council delayed the disestablishment until June 16, 1937, although it had
been informed -early in May 1937 that the respondent would no longer deal
with it, because it wished to wait until the new Agency was "set-up."
Following the meetings of June 16 the minutes were submitted to the re-
spondent, reproduced in the same format as the minutes of the Council and
posted, on,,the bulletin boards. According to Barnhill, Kirk agreed to continue
e Barnhill testified that he had the Agency in mind as the organization to which the
unfinished problems would be referred.
1370 D'EICISIONS OF NATIONAL LABOR RELATIONS BOARD
the practice of printing the minutes, if the Works Board agreed to pay for such
services. On July 21, 1937, a bill for such printing dated June 18, 1937, and
totaling $19.82 was submitted to the Works Board and ordered paid.
On June 23, 1937, a special meeting of the Works Board was held in the
conference room in the administration building, attended by 10 of the 12
Works Board representatives, who were formerly members of the-Council, It
was announced at the meeting that $675 35 in application fees and dues had
been collected. Barnhill also reported that because Hugh Caldwell, who had -
been a representative in the Council, had been transferred by the respondent
to a different plant, a special election would be held "for the filling 'of this-
vacancy." Caldwell had not attended the first two meetings of the Agency.
Around June 28, 1937, the Agency filed a certificate of incorporation, the
incorporators .being all of the former representatives of the Council, except
Hugh Caldwell. Five of the incorporators were designated as trustees of the
new corporation
On June 30, 1537, 10 of the 11 incorporators met in a public meeting hall
in Pennsville, New Jersey, and elected officers, Barnhill, Weatherby, and Emmel
being again selected for the offices to which they were elected on June 16. The
group then adopted a constitution which was identical with the proposed
constitution distributed among the employees except for the addition of a new
section relating to a Board of Trustees., Weatherby announced that the respond-
ent had agreed to the use by the Works Board for a monthly rental of $12',
of a room in the administration building as a "temporary meeting place" and
the use of a different' room "and equipment therein" in Building No. 81 of the
plant "as a committee room." The Works Board accepted this offer.
On July 1, 1937, a lease of these two rooms on a month to month basis for
a monthly rental of $12 was executed between the respondent and the Agency.
The respondent also furnished light, heat, and furniture for these rooms, without
charge.
On July •7, 1937, the Works Board requested the respondent to recognize it
as the collective bargaining agency of its members. On July 20, following the
examination of 4170 application cards submitted by the Works Board, L. S.
Munson, the plant manager, wrote Barnhill that the Agency would be recog-
nized as the collective bargaining agency for its members and that "Notice
of this recognition will be posted on all bulletin boards of the plant forthwith."
On July 14, 1937, a special election was held in which J. E. Livermore, for-
merly secretary of the Council, was elected as a Works Board representative
"to fill the unexpired term of Mr. Hugh Caldwell."
On October 31, 1937, the Works Board terminated its lease and rented head-
quarters in the town of Deep Water. The Works Board, however, continued
thereafter to use the room 'in Building No' 81 without paying rent. A file
cabinet containing records 'of the Works Board was kept in this room. A
telephone was later furnished for which likewise no charge was made by the
respondent. In the plant telephone directory dated January 1, 1942, this tele-
phone was listed under the name of the Works Board.
. 'In October 1937, the plant manager "authorized" the Works Board to conduct
the annual nomination and election of representatives in the plant, provided
that the employees voted before or after working hours and the election ,clerks
and tellers were not paid by the respondent for their activities. Such elections
were held in the plant in October and November, 1937 and six representatives ,
were elected, the notice of the election stating that the terms of six of the
representatives had. expired. Asked to explain why only, 6. of the 12 repre-
sentatives were elected at this time, Barnhill testified that-. the .2-year terms
E. I. DU POI' T DE \EN10URS & COMPANY 1371
of the 6 representatives of the Works' Board who had been elected in November
1936 as representatives to the Council had been deemed confirmed by the signing
by the employees of the application cards in June 1937.' . ,
The respondent continued after the organization of the Works Board to
reimburse its representatives for time spent in certain of their activities. Thus
the respondent paid the representatives for all time spent in conferring, with
their constituents about '*problems," in dealing with the respondent's super-
visors about grievances, and in all conferences with' the respondent' s super-
visory staff. Barnhill periodically wrote to the superintendent of the respond-
ent's time department reporting such time lost by the representatives. For the
period from April 23 to July 1, 1939, a total of 359 hours was claimed in this
manner for 5 representatives. The representatives were paid not only at
'their regular hourly rate, but in addition received the wage incentive pre-
mium to which they would have been entitled had they worked at their cus-
tomary duties.
Barnhill, ^vho was a carpenter, was also president of the employees' Credit
Union In January 1938, lie was relieved by the respondent of his duties as
a carpenter so that he could devote all of his time to Works Board and Credit
Union activities, being paid by the respondent at his regular rate plus a wage
incentive premium 8 In March 1941 Barnhill became a foreman and resigned
from the Works Board. He was succeeded as president by Weatherby, a director
of the Credit Union, who was the beneficiary of a similar arrangement by
which the respondent compensated him for his Works Board and Credit Unioh
activities.
The Credit Union had been established in 1935 with the help'of the respond-
ent. The respondent thereafter donated office space and clerical assistance to
it and two members of its supervisory staff were on its governing body. The
Works Board obtained from the Credit Union the list of names and addresses
of new employees which were furnished the Credit Union by the respondent.
These employees were then solicited personally or by mail to join the Agency.
This practice still. continues. When the Works Board ceased, after 1938, to
conduct its elections in the plant and held elections by mail, the naiiies and
addresses of the employees were obtained from the Credit Union
There have been few changes in the composition of the Works Board, the
representatives generally being re-elected at the end of each term, and serving
until they became supervisors or left the re'spondent's employ.
Since its organization, the Works Board has never called a general meeting
of employees and has never asked the respondent to negotiate a comprehensive
contract relating to terms of employment.
On February 12, 1942, the Regional Director of the Union called on Kirk At the
suggestion of the Union representative the following notice was posted on Febru-
ary 17, 1942, on all of the respondent's bulletin boards :
M
NOTICE TO ALL EMPLOYEES
In order that all employees may have a clear understanding of their rights
wider the National Labor Relations Act, the following sections• of the Act
defining a "labor organization" and the right of employees to form, join or
assist such an organization are quoted below :
,'As, has been found, the application card read that the singer agreed to support "diq
present representative under the .by-laws until the expiration of his term 't • ,
8 The premium varied in accordance . with the production effort of the carpenters ' group to
which Barnhill was assigned .' Half of Barnhill' s time was spent •on Works Board. aeti' sties.
1372 IYEICTSTONS, OF NATIONAL LABOR RELATIONS BOARD
"Sec. 2, Par. `o.-The term "labor organization" means any organization
of any kind, or any agency or employee representation committee or plan,
in which employees participate and which exists for the purpose, in whole
or in part, of dealing with employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or conditions of work..
"Sec. 7.-Employees shall have the right,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."
It has,been and will continue to be the policy of this Company,- to- comply
in the fullest sense with the provisions of the National Labor Relations Act.
There will continue to be no discrimination against, interference with, re-
straint or coercion of any employe by the Company or any of its representa-
tives because of membership or non-membership in'any labor organization.
E I. DU PONT DE NEMOURS & Co,
Manager, Dye works.
0. Concluding findings
That the Plan was an organization existing in giolation of the Act can scarcely
be questioned. Not only was the Plan established by the respondent, but the
latter defrayed all of its expenses, reimbursed its representatives for time spent,
on Council activities, and lent company sponsorship to the Council by posting its
minutes on company bulletin boards. The respondent itself recognized, as soon
as the Act had been declared constitutional by-the Supreme Court, that its former
policy of nurture and sponsorship had to be revised.
The Agency and the Works Board, the result of this revision, represent,
however, merely a surface reorganization of the Plan, the more obvious symp-
toms of employer domination being eliminated while the "virus of control" e
remained unchecked. The Works Board is nothing more than the Council
acting under a different name, attempting "to carry on in legal form" the
purposes of the Counci110 The "group at the helm"" of the Council initiated
the Works Board and continue to direct it, under the continued sponsorship of
'the respondent. The respondent continued to reimburse the representatives
for ' their time spent in adjusting grievances, continued to make-available an
office, made available a plant telephone, continued to allow the Works Board
the use of its bulletin boards, and continued for sometime to allow the Works
Board elections to be conducted in the Plant, thus announcing to its employees
that its sponsorship of the Council had been shifted to the Works Board.
The transition between the two organizations, was so engineered as to "pre-
vent any hiatus" between the old and the new.' The 11 members of the
Council met in the room assigned to them by the respondent in what they
described as a "final meeting"; after a brief session they took a decorous
"recess" of 20 minutes and reassembled in the same room to conduct the
"organization meeting" of the Works, Board. The members of the Council
as their last act even transferred to the Works Board all the unfinished busi-
ness of the Council. Finally, the old representatives were allowed to finish
their unexpired terms of office.
a
9N. L. R . B. v. H. E . Fletcher Co., 108 F. (2d) 459, 466, (C . C. A. 1), cert . denied, 309
U S. 678. ,
IORoebling Employees Assn. v. N. L. R. B., 120 F. ( 2d) 2891 (C. C. A. 3).
31 N. L. R. B. V. Condenser Corp, 128 F. (2d) 67, 73 (C. C. A. 8).
"Kansas City Power 4 Light Co. v. N. L R. 8 ., 111 F. ( 2d) 240 (C. C. A. 8). -
E. I. DU PONT DE NEMOURS & COMPANY, 1373
The habits of subservience inculcated in the Council members'by the respond-
ent's' long-continued domination and support were not abandoned by them
when they constituted the Works Board. Thus the Agency had no provisions
for -regular general meetings of its members 'or their participation in the
management of its affairs, made no effort to obtain a collective labor agreement,
'and continued to function, as it had in the past, solely as a device to adjust
employees' grievances. As has been said, in referring to a similar organiza-
tion, the Agency "owed both parentage and nurture to management and . . .
has been a docile child which never got out of hand." 18
The respondent owed its employees more than merely the obligation to refrain
from crude forms of threats and coercion .' The respondent was required ' to
announce to its employees, unmistakeably, that. it was disestablishing the
Plan, that its employees were now free to form or join any organization of their
own choice, that it was a matter of indifference to it what course of action
they took, and finally that it would refrain from any act of assistance or sup-
port to any new organization being formed. As the courts have held : "In such
a situation it is now settled as a matter of law that there must be a definite,
clear line of cleavage between the two organizations in order for the latter
to be free from the taint of employer domination found to be prevalent in
the former." '6 The, respondent did not fulfill this obligation by merely ad-
vising the members of the Council that it must reorganize, carefully refraining
from ;making, a public eanouncement to its employees on the subject,18, thus
giving the Council representatives the 'opportunity (which they utilized) of
keeping the Council in existence until their plans for the Agency were con-
summated without opposition.
The respondent did nothing "to mark the separation between the two organi-
zations and publicly to deprive the successor of the advantage of its apparently
'continued favor." 14
Unquestionably in the absence of such notice of disestablishment, which would
have showed "that the field was cleared of the original illegal growth and was
thus rendered suitable for sowing the seeds of an undominated body,"" and in
the light of the continued activity of the former representatives under the
continued sponsorship of the respondent, "the employees will suppose that
the company approves the new, [organization] as it did the old, and that their
choice is for that reason not as free as the statute demands " 19
The undersigned accordingly finds that the respondent dominated and inter-
fered with the formation and administration of the Plan together with its
Council and the Agency together with its Works Board and contributed financial
' N. L R. B. V. Blossom Products Corp, 121 F. (2d) 260 (C. C. A. 3).
11 See American Enka Corp. T. N. L. R. B, 119 F. (2d) 60 (C. C. A. 4), where the court
said : "Seldom does the domination and interference with employee representation which
the Act prohibits take the form of threat or coercion . More often it is to be found in the
guise of friendly cooperation."
N. L. R. B. v. Condenser Coip., 128 F. (2d) 67, 73 (C. C A. 3).
As the court held in H. J. Heinz & Co. v. N. L. R. B., 110 F. (2d) 843 (C C. A. 6), aff d.
in 311 U. S. 514 : "If petitioner had really wanted its employees to know that they might
with safety join whichever union they desired, the bulletin boards were the obvious, and
because direct , the most effective means of assuring them of its impartiality."
11 Westiio,house Electric & Mfg. Co. v. N. L. It B., 112 F. (2d) 657 (C. C. 4. 2), aff'd.
in'312 U."S.=680. ' -
19 E. 7 . du Pont do Nemours ' d Co v . N L. R. B ., 116 F . ( 2d) 388 ( C. C. A: 4), cert denied,
313 U. S. 571.
19 Westinghouse Electric d Mfg Co v N. L R B , 112 F (2d) 657 (C C. A. 2 ), aff'd.
in 312 U. S 680. -
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and other support thereto, and thereby -interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in-Section III above , occurring in
connection with the operations of the 'respondent described in Section I above,
have a close , intimate, and substantial relation to trade, traffic , and com-
merce among the several states, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has 1engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act
It has been found that the respondent dominated and interfered with the
formation and administration of the Plan and the Council and of the Agency
and Works Board and contributed support thereto . Since, however, the Plan
and the Council are no longer in existence , the affirmative action recommended
will be limited to that affecting the Agency and the Works Board. In order
to effectuate the policies of the Act and free the employees of 'the_ respondent
from the effect of such long-continued practices , which constitute a present
and continuing obstacle to_the exercise by the employees of the righfs guaran-
teed in the Act, the undersigned will recommend that the respondent withdraw
recognition from and completely disestablish the Agency and the Works Board
as the representative of the respondent 's employees or any of them for the
purpose of collective bargaining or adjustment of grievances.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
Covcr,usioNS OF' LAW
1. United Aline Workers of America, District No. 50, and Deep Water Indus-
tries Collective Bargaining Agency and its operating instrumentality, Dye
Works' Industries Labor Board, are each labor organizations, within the mean-
ing of Section 2 (5) of the Act.
2..Dye Works Employees'- Representation Plan and, its operating instru-
mentality, Dye Works Council, was a labor organization within the meaning of
Section 2 (5) of the Act.
3. By' dominating -and `interfdring' with the formation and administration of
Deep Water Industries , Collective,: Bargaining- Agency -, and -its, operating in-
strumentality, Dye Works' Industries Labor Board, and of Dye Works Em-
ployees' Representation Plan, and its operating instrumentality, Dye Works
Council, and contributing support thereto, the respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (2) of
the Act. - . '
4. By interfering with, restraining, and coercing its employees in the exercise
of 'rights guaranteed in Section 7 of the Act the respondent has engaged in and
is engaging in unfair labor practices, within' the, meaning of Section 8i (1) of
the Act.
4<5.. The. aforesaid labor,practicesCare,unfair,laborpractices aVocting,,coi merce,
within the meaning of Section 2 (6)" and (7) of the Act.
E. I. DU PONT DE NEMOURS & COMPANY 1375
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent E. I. du Pont de Nemours & Company,
its agents, officers, successors, and assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Deep Water In-
dustries Collective Bargaining Agency and its operating instrumentality, Dye
Works' Industries Labor Board, or with the formation or administration of
any other labor organization of its employees, and from contributing financial
or other support to the above-named organization or to any other labor organ-
ization of its employees ;
(b) Recognizing or in any manner dealing with Deep Water Industries Col-
lective Bargaining Agency and its operating instrumentality, Dye Works'
Industries Labor Board, as the representative of its employees or any of them,
for the purpose of dealing with the respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other conditions of
work ;
(c) In any like or related manner R0 interfering with restraining, or coercing
its employees in the exercise of the right 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 purposes of
collective bargaining or other mutual aid or protection as guaranteed in Section
7 of the Act.
2. Take the following affirmative action which the undersigned finds will ef-
fectuate the policies of the Act:
(a) Withdraw all recognition from and completely disestablish Deep Water
Industries Collective Bargaining Agency and its operating instrumentality, Dye,
Works' Industries Lal)or Board, as the representative of its employees or any of
them for the purpose of dealing with the respondent concerning grievances,
labor disputes. rates of pay, wages, hours of employment, or other conditions
of employment:
(b) Post immediately on each of its bulletin boards in its plant at Deep Water,
New Jersey, and maintain for a period of not less than 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 paragraph 1 (a), (b), and (c) of these recommendations; and (2)
that it will take the affirmative action set forth in paragraph 2 (a) of these
recommendations ;
(c) Notify the Regional Director for the Fourth Region (Philadelphia, Penn-
sylvania) in writing within ten (10) days from the date of this Intermediate
Report what steps the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Di-
rector in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board; Series 2-as amended; effective October 28,
1942, any party may within fifteen (15) days from the (late of the entry of
20 See Matter of Dadour ian Expo; t Corp ., etc., 46 N . L. R B 498; Matter of North,
American Aviation, Inc , etc, 44 N. L R B. 604, 615.
1376 • D'ECISIOINTS OF NATIONAL LABOR RELATIONS BOARD
the order transferring the case to the Board , pursuant to Section 32 of Article.
II of said Rules and Regulhtions , file with the Board, Shoreham Building,
Washington , D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding ( including rulings upon all motions or objections) as it
relies upon, together with an original and four copies of a brief in support
thereof. As further provided in said Section '33, should any party desire per-
mission to argue orally before the Board, request therefor must be made, in
writing to the Board within ten ( 10) 'days from the date of the order trans-
I
ferring the case to the Board.
Dated April 8, 1943
WILL MASLOW,
Trial Examiner.