E. I. Du Pont De Nemours & Co., 753 (1971)

Docket Number:09-CA-05553

E I. DU PONT 753

E. I. Du Pont De Nemours & Company and Neoprene Craftsmen Union. Case 9-CA-5553



On October 29, 1970, Trial Examiner Ivar H.

Peterson issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed limited exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed cross-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 powers in connection with this case to a three-member panel.

The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith.

The Trial Examiner found that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally shutting down its cafeteria on weekends, holidays, and nights; unilaterally removing a telephone used by agents of the Charging Party; unilaterally increasing the price of cigarettes sold in vending machines; and unilaterally discontinuing the practice of furnishing soda crackers free of charge to employees utilizing the cafeteria and placing the crackers in vending machines at a price of 5 cents per package. Respondent contends that it bargained to impasse concerning the partial closing of the cafeteria, and that the other matters were not working conditions and hence not mandatory subjects of bargaining, or, if it had a duty to bargain about these other changes, it satisfied this duty by discussing them after the Union protested.

We find merit in this contention.

There is no dispute as to the facts. With respect to i We do not adopt the Trial Examiner's comments concerning the nature of the Charging Party at the time of its formation, the motives of the parties in this proceeding, or the propriety of the issuance of the complaint herein 2 The loss was $72,000 in 1966, $86,000 in 1967, and $89,000 in 1968

3 All dates are 1970 unless otherwise mdlcated the partial closing of the cafeteria, it is clear that, since 1965, Respondent, in the course of negotiations with the Union, had expressed concern on several occasions about the fact that the cafeteria was losing money and had indicated a desire to close it during slow periods. In July 1969, the Respondent presented charts showing that the loss had risen to $99,000 that year.2 Finally, in February 1970,3 Respondent notified the Union that it would have to raise prices substantially or close the cafeteria on weekends, holidays, and nights, and it presented charts showing the losses from 1966 to 1969 and figures showing employee usage of the cafeteria on nights, holidays, and weekends. As late as February 24, however,

Respondent indicated that its decision concerning the cafeteria was not final and postponed the partial closing, originally scheduled for March 1, until March 16. While the Union adamantly opposed the partial closing, the only alternatives it suggested were providing the employees with one free meal a day or opening the cafeteria to the general public, both of which were rejected as frivolous.4 On February 25, at another meeting between the parties, Respondent announced that it had definitely decided to close the cafeteria on weekends, holidays, and nights.

The increase in the price of cigarettes sold in vending machines from 30 to 35 cents a pack was requested in early 1970 by the vendor who owned and serviced the vending machines in Respondent's canteen. The vendor pointed out that the wholesale price of ciagettes was about to go up for the third time and that, in most places in the area, cigarettes were selling for at least 35 cents a pack. In addition, in view of complaints that employees who brought their own lunches to work were taking too many packages of crackers which were being furnished free of charge for use with soup purchased in the cafeteria, the vendor requested that the packages be placed in vending machines at a price of 5 cents each. Respondent acceded to the vendor's requests because it felt that it had to increase the prices, stop selling the items in question, or absorb the increased cost, and that it had absorbed all the cost it could.5

Upon learning of the proposed changes, the Union protested. Respondent replied that it had no choice, that all the prices were increasing, and that the crackers were being misused. The Union pointed out that the misuse of crackers had been going on for some time. No agreement was reached, and the Union filed a grievance concerning the partial closing of the cafeteria and the price changes. The grievance was 4 Respondent points out that giving away free meals would only increase the loss of money, while opening the cafeteria to the public was impractical because the plant was in an isolated area and was engaged in hazardous work 5 Respondent had previously reduced its share of the profit from the vending machines from 4 percent to 2 percent.

189 NLRB No. 114 discussed at the meeting on March 10, but there was no further substantive discussion of the changes and all went into effect as scheduled on March 16.

Under these circumstances, we are persuaded that the Respondent satisfied whatever statutory obligation it had with respect to these changes. It is clear that the Respondent gave the Union adequate notice of its intention to close the cafeteria on weekends, holidays, and nights; that it even postponed its action in the hope of reaching agreement; and that it met and discussed the increase in vending machine prices upon request. Since these matters were not fixed by contract, the changes did not constitute a modification of contract terms, and, accordingly, while the Respondent may have been obligated to discuss the changes, agreement of the Union was not essential before they could be put into effect.6 In any event, it is apparent that the Union proposed only alternatives which Respondent regarded as frivolous 7 and that the Union's position was fixed, so that further discussion of these subjects would have been futile.8 Accordingly, we find that the parties had bargained to impasse and that Respondent did not violate Section 8(a)(5) and (1) of the Act by making these changes.

With respect to the removal of the lobby telephone, the relevant facts are set forth in the Trial Examiner's Decision. We do not agree with the Trial Examiner's conclusion that Respondent violated Section 8(a)(5) and (1) of the Act by removing the telephone without prior notice to the Union. There is no indication that Respondent had ever agreed that that particular telephone was for the use of the Union, or that its removal affected any employees in any way, directly or indirectly, or interfered with the Union's performance of its statutory function of servicing the collective-bargaining contract. Indeed, Respondent's employee relations superintendent testified that he was unaware of the significance of that telephone to the Union until the latter protested its removal. Under the circumstances, Respondent was under no obligation to notify the Union in advance of its intention to remove the lobby telephone .9 In addition, we note that, when the Union protested the removal, Respondent made clear its willingness to provide the Union with telephone...

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