E. I. DuPont de Nemours & Co.

National Labor Relations Board - Board Decisions

Apr 13, 1945

61 N.L.R.B. 536 (N.L.R.B. 1945)

In the Matter of E. I. DUPONT DE NEMOURS & COMPANY and INTER-
NATIONAL UNION OF OPERATING ENGINEERS , LOCAL 321, A. F. L.
Case No. 10-R-1386.-Decided April 13,1945
Messrs. H. 0. Blumenthal and George H. Miller, of Wilmington,
Del., for the Company.
Hr. Lloyd T. Tomlinson, of Birmingham, Ala., and Mr. Alex F.
McDonald, of Savannah, Ga., for the Union.
Mr. Sidney Grossman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by International Union of
Operating Engineers, Local 321, A. F. L., herein called the Union,
alleging that a question affecting commerce had arisen concerning
the representation of employees of E. I. DuPont de Nemours & Com-
pany, Childersburg, Alabama, herein called the Company, the Na-
tional Labor Relations Board provided for an appropriate hearing
upon due notice before T. Lowry Whittaker, Trial Examiner. Said
hearing was held at Birmingham, Alabama, on February 20, 1945.
The Company and the Union appeared and participated. All parties
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
The Trial Examiner's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed. All parties were afforded an
opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
E. I. DuPont de Nemours & Company, a Delaware corporation, is
engaged in the manufacture of general chemical products. We are
61 N.'L. R. B., No. 74.
536
E. I. DUPONT DE NEMOURS & COMPANY 537
here concerned with its plant at Childersburg, Alabama, where it is
engaged in the manufacture of smokeless powder and high explosives
under contract with the United States Government. During the last
fiscal year, approximately 80 percent of the raw materials purchased
by the Company was shipped to its plant from points outside the
State of Alabama. During the same period, approximately 70 percent
of its finished products was shipped to points outside the State of
Alabama.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
International Union of Operating Engineers, Local 321, affiliated
with the American Federation of Labor, is a labor organization
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of its employees until the Union
has been certified by the Board in an appropriate unit.
A statement of a Board Agent, introduced into evidence at the
hearing, indicates that the Union represents a substantial number
of employees in the unit hereinafter found appropriate.,
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union seeks a unit consisting of heavy truck and trailer drivers
who operate motor cranes, tractor operators, crane operators, the oiler
in the transportation department who oils such equipment,' auto and
Diesel mechanics and their helpers, four automobile mechanics 3 and
four garage helpers 4 in the transportation department who spend a
portion of their time in the Diesel shop, and gas locomotive operators
and gas locomotive helpers, but excluding overhead crane operators
1 The Field Examiner reported that the Union submitted 75 authorization cards , of which
7 bore dates in 1943, 56 in 1944, and 12 were undated ; 46 cards bore the names of em-
ployees on the Company ' s pay roll of December 17, 1944 , in an alleged appropriate unit
consisting of 84 employees.
T. A Browning
3 L D. Smith, E O. Rainwater , A. D. Stinson , and James E. Williams.
4 Harve Whetstone , Curtis Wilson, Ponell Reynolds , and Jesse Millender
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and supervisory employees.' The Company urges the appropriate-
ness of a plant-wide unit.6
The Company, in addition to its general contention that a plant-
wide unit is appropriate, also maintains that the employees in the
unit proposed by the Union do not constitute a well-defined and
homogeneous group possessing a sufficient community of interest for
bargaining purposes. We are unable to agree with such contention.
It is clear that, with certain exceptions, the employees in the pro-
posed unit who operate heavy power-driven equipment come within
the Union's recognized craft jurisdiction and may properly function
as a bargaining unit.' Nor do we perceive any inconsistency in the
Union's desire to include therein heavy truck and trailer drivers in
the transportation department and in the maintenance department of
Plant 2, and gas locomotive operators and their helpers in the powder
department's while it would exclude heavy truck and trailer drivers
in the TNT department,' riggers in the maintenance department, and
all other employees in the powder department. The former group
are primarily operators of power-driven equipment characteristic
of the Union's craft jurisdiction; the latter are not so engaged. On
the other hand, functional considerations warrant exclusion from the
operators unit here sought employees whose work is indistinguishable
from that of other employees, and whose separation from the latter
would result in an arbitrary and artificial delineation. In this category
fall the auto and Diesel mechanics in the transportation department,
whom the Union would include while desiring exclusion of the re-
maining automobile mechanics and garage helpers in the transporta-
tion department; the latter employees, although employed in the
automotive shop, engage in duties not substantially dissimilar to
those performed by the Diesel mechanics, may also spend a portion
of their time in the Diesel shop,10 and normally progress to the status
of auto and Diesel mechanics. Equally untenable is the Union's de-
sire to include T. A. Browning, the oiler in the transportation de-
partment, while it would exclude other oilers in this and other
departments who perform substantially the same duties and receive
5In its petition, the Union requested a unit comprised of "all operators* of bulldozers,
motor cranes, grade pctiols and cranes, and all oilers and helpers on such equipment, all
heavy duty mechanics and helpers , all operators , switchmen, and helpers on dinkey locomo-
tives, excluding overhead crane operators and all supervisory employees " The employee
classifications here used accoid with the pay-roll classifications submitted by the Company
at the hearing.
6 See Matter of E. I. DuPont de Nemours d Company, 52 N L R B. 1335, 54 N. L R. B.
1543
7 Matter of Carbide and Carbon Chemicals Col poration, 56 N I, R B 779 , Matter of
Dolese d Shepard Company, 56 N L It I3 .132, latter of Basic i11agnesium, Incorporated,
55NLRB380
See Matter of Houston Shropbuelding Corporation, 46 N L R B 161
° These employees do not operate cranes
'0 As do the employees referred to in footnotes 3 and 4, supra.
E. I. DUPONT DE NEMOURS & COMPANY 539
the same rate of pay. Consequently, we shall exclude auto and Diesel
mechanics and helpers, automobile mechanics and garage helpers,
and all oilers.
We find that all crane and tractor operators, heavy truck and trailer
operators in the transportation department and maintenance depart-
ment of Plant 2, and gas locomotive operators and gas locomotive
helpers in the powder department, at the Company's Childersburg,
Alabama, plant, excluding auto and Diesel mechanics, automobile
mechanics and garage helpers, all oilers, overhead crane operators,
and all supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit appro-
priate for the purposes of collective bargaining, within the meaning
of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the
employees in the appropriate unit who were employed during the
pay-roll period immediately preceding the date of the Direction of
Election herein, subject to the limitations and additions set forth in
the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it
is hereby
DIRECTED that, as part of the investigation to ascertain represen-
tatives for the purposes of collective bargaining witlY E. I. DuPont
de Nemours` & Company, Childersburg, Alabama, an election by
secret ballot shall be conducted as early as possible, but not later
than thirty (30) days from the date of this Direction, under the
direction and supervision of the Regional Director for the Tenth
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Sections 10 and 11, of said
Rules and Regulations, among the employees in the unit found
appropriate in Section IV, above, who were employed during the
pay-roll period immediately preceding the date of this Direction,
including employees who did not work during the said pay-roll period
because they were ill or on vacation or temporarily laid off, and
including employees in the armed forces of the United States who
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present themselves in person at the polls, but excluding any who have
since quit or been discharged for cause and have not been rehired
or reinstated prior to the date of the election, to determine whether
or not they desire to be represented by International Union of
Operating Engineers, Local 321, A. F. L., for the purposes of collective
bargaining.
CHAIRMAN MILLis took no part in the consideration of the above
Decision and Direction of Election.