E. I. du Pont de Nemours and Co., 535 (1973)

5. I. DU PONT DE NEMOURS & CO. 535

5. I. du Pont de Nemours and Company and International Brotherhood of Electrical Workers, Local Union 382, AFL-CIO. Case 11-CA-5013

   May 11, 1973 DECISION AND ORDER

   BY MEMBERS FANNING, JENKINS, AND KENNEDY On December 29, 1972, Administrative Law Judge Fannie M. Boyls issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief.

   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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her 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 recommended Order of the Administrative Law Judge and hereby orders that Respondent, E. I. du Pont de Nemours and Company, Florence, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order.

   DECISION

   STATEMENT OF THE CASE

   FANNIE M. BOYLs, Administrative Law Judge: This case, initiated by a charge and an amended charge filed respectively on July 11 and August 9, 1972, and a complaint issued on August 31, 1972, was tried before me at Florence,

   South Carolina, on October 30, 1972. The complaint alleges, and Respondent's answer denies, that Respondent since on or about January 11, 1972, has refused to bargain with the Charging Party, in violation of Section 8(a)(5) and (1) of the Act. Subsequent to the hearing counsel for Respondent and for the General Counsel filed briefs, which I have carefully considered.

   Upon the entire record in this case and my observation of the demeanor of the witnesses, I make the following:

   FINDINGS OF FACT

   I THE BUSINESS OF RESPONDENT

   Respondent is a Delaware corporation having facilities located in South Carolina, including a plant at Florence,

   South Carolina, where it is engaged in the manufacture of a polyester film product. During the 12-month period preceding the issuance of the complaint, which is a representative period, Respondent received at its Florence plant goods and raw materials valued in excess of $50,000 directly from points outside South Carolina. During the same representative period Respondent shipped directly to points outside South Carolina products valued in excess of $50,000. I find on the basis of these facts that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

   II THE LABOR ORGANIZATION INVOLVED

   International Brotherhood of Electrical Workers, Local Union 382, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2 (5) of the Act.

   III THE UNFAIR LABOR PRACTICES

1. Background and Issues Respondent employs about 420 employees in 11 work units at its Florence, South Carolina, plant. Approximately 28 of these employees are in a work unit consisting of control mechanics and their trainees.' This work unit was found by the Board's Regional Director to constitute a unit appropriate for purposes of collective bargaining and, following a representation election, the Union was certified on October 1, 1971, as the collective-bargaining representative of employees in that unit. None of the other employees in the plant are represented by any union.

   As found by the Board in a prior and related unfair labor practice case against Respondent (199 NLRB No. 175, decided October 26, 1972), Respondent had, in the preelection campaign, opposed the Union as its employees' representative. Its plant manager, Bray, had told the employees, among other things, that employees in another plant of Respondent who selected the Union to represent them had received no benefits from the payment of union dues; that if the employees chose the Union, all benefits would be 'negotiated . . . from the bottom up'; that Respondent would, contrary to its previous practice, 'hire and fire from the gate'; and that the control mechanic group, if they voted the Union in, would lose their 'rollback' rights to other jobs in the plant in the case of a layoff or the failure of a trainee to pass a progression test. In fulfillment of the latter threat, Respondent, following the Union's certification, did in fact discharge a control mechanic trainee, Hilton Harrell, who failed a progression test-contrary to Respondent's long-established practice of permitting a trainee who fails a progression test to roll back to a job in 1 Of these, 22 are control mechanics and 6 are trainees.

   203 NLRB No. 95 another work unit to which his plant seniority entitled him.

   The Board found that by threatening prior to the election to take from employees in the control mechanic group, if they selected the Union, their long-recognized right to roll back to other work unit jobs to which their plant seniority might entitle them in case of a layoff or failure to pass a progression test and by making that threat a reality after the election in the case of trainee Hilton Harrell , Respondent violated Section 8(axl) and (3) of the Act.

   On October 27, 1971, at its first contract negotiation meeting with the Union, Respondent informed the Union of its plan to terminate employee Harrell rather than permit him to roll back to a plant pool job which he could have done, after failing a progression test, if the Union had not been chosen to represent the control mechanic group. At this and three subsequent meetings held on November 4, 11, and 16, 1971, Respondent and the Union discussed this subject. Respondent gave its reasons for its decision and the Union opposed and gave its reasons for opposing Respondent's proposed action. It was after these negotiations, and over the strong protest of the Union, that Respondent terminated Harrell's employment. Since the positions of the parties on this subject were thoroughly explicated in the October and November 1971 negotiation meetings and remained essentially unchanged throughout the numerous bargaining conferences held in 1972, Respondent's minutes of those 1971 meetings are an inseparable part of the evidence relevant to a determination of the question before me-whether Respondent's adamant insistence upon contract provisions which would permit it to do what the Board had found it violated Section 8(a)(3) of the Act in doing in the case of employee Harrell, constituted a violation of Respondent's bargaining obligations under Section 8(aX5) and Section 8(d) of the Act .2

   The complaint alleges that Respondent since on or about January 11, 1972, has refused to bargain, in violation of Section 8(aX5) and (1) of the Act, by (1) adamantly insisting upon the inclusion in any contract of a seniority clause which would discriminatorily deny members of the bargaining unit the privilege to roll back, revert to or be reinstated in a previously held work unit job, which privilege was afforded employees prior to the certification of the Union;

   (2) adopting and thereafter adamantly maintaining a takeit-or-leave-it position with respect to a proposed contract which would eliminate rollback privileges for members of the bargaining unit; and (3) engaging in a course of bargaining constituting only surface bargaining without any intent of reaching any final and binding collective-bargaining agreement. All three of these allegations, as I understand the General Counsel's position, relate to Respondent's position with regard to elimination of the employees' rollback privileges.

   2 Respondent kept minutes on each bargaining session, which the General Counsel has apparently regarded as substantially accurate and which he introduced in evidence as G.C. Exh. 2(a)- (kkkk). I, too, shall accept them as a substantially accurate account of what took place during the negotiating sessions.

2. Operation of Respondent's Established Seniority System At the time it opened its Florence, South Carolina, plant in 1960, Respondent established and has since been operating under three types of seniority for its employees-work unit seniority, plant seniority, and company seniority. Company seniority determines vacation, pension, and insurance benefits on a companywide basis and can be retained by an employee if he leaves one of the Company's plants and works at another. Work unit and plant seniority determine his job rights if he is scheduled for layoff or if he fails a progression test in the control mechanic (sometimes also referred to as the control equipment mechanic) work unit or the general mechanic work unit-the only groups in which progression tests are given.

   Jobs at Respondent's plant are in eight different wage group classifications. Control mechanics are in Class 8, the highest paid classification. Trainees for a control mechanic job start at Class 3 and progress through four more classifications until they qualify for the control mechanic, Class 8 job. Each trainee is given a progression test at the end of specified training periods over an approximately 3-year period. A trainee who fails his first progression test-given after 8 weeks-cannot be retested and must, under Respondent's long-established policy, be returned or 'rolled back' to his former job in another work unit. If a trainee fails a subsequent progression test , however, he has the option of returning to the labor pool at a Class 2 job immediately or of being retested and returning to the labor pool only if he fails upon being retested. He may not again be retested following a failure of any progression test beyond the first one but must return to the labor pool from which he may progress when a vacancy occurs into a Class 3 job in his former work unit. This capsuled version of the rollback and plant seniority policy as it affects the trainees is...