E. I. Du Pont de Nemours & Co., Inc.

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD open and count the ballot of Anthony Tomazatis and serve upon the parties a supplemental tally of ballots.] MEMBER BEAN took no part in the consideration of the above Sup- plemental Decision and Direction. E. I. Du Pont de Nemours & Company, Inc., Construction Division, Savannah River Plant and United Gas, Coke and Chemical Workers of America, CIO. Case No. 11-CA-716. January 18, 1956 DECISION AND ORDER On March 25,1955, Trial Examiner Max M. Goldman issued his In- termediate Report 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 copy of the Intermediate Report attached hereto. Thereafter the Respondent, the General Counsel, and the Charging Union filed exceptions, and the Respondent and the General Counsel filed supporting briefs.' The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case,2 and hereby adopts the Trial Examiner's findings,' conclusions, and recommendations. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, E. I. Du Pont de Nemours & Company, Inc., Construction Division, Savannah River Plant, Aiken, South Carolina, its officers, agents, successors, and as- signs, shall : 1 The Respondent moved for permission to file a reply brief in answer to the General Counsel's brief in support of exceptions. The motion is hereby granted and the Respond- ent's reply brief is hereby accepted. 2 The Trial Examiner, on October 12, 1954, issued an order admitting stipulation as exhibit. The Trial Examiner's failure formally to include has order in the record was obviously an inadvertent error, and the Board , upon its own motion, hereby orders that the Trial Examiner's October 12, 1954, order be, and it hereby is, made a formal exhibit and part of the record in this case. 3 Through an apparent oversight the Trial Examiner made no formal finding that the Respondent's fire chief, assistant fire chief, lieutenants, and fire leaders were supervisors. The' Respondent's assistant field project manager testified that those fobs were in the Respondent's "line of supervision ," and there is no controversy on the positions. We find, ,accordingly, that the Respondent's fire chief, assistant fire chief, lieutenants, and fire 'leaders were, at all times material herein , supervisors within the meaning of the Act. 115 NLRB No. 20. E. I. DU PONT DE NEMOURS & COMPANY, INC. 85 .1. Cease and desist from : (a) Refusing to bargain collectively with United Gas, Coke and- Chemical Workers of America, CIO, as the exclusive representative-of all employees of the fire department at the Respondent's construction operations at the Savannah River project, Aiken, South Carolina, in- cluding firemen, fire-truck drivers, and inspectors, but excluding lead- ers, chief, assistant chiefs, captains, lieutenants, fire marshal, office clericals, guards, and supervisors as defined in the Act. (b) Attempting to engage in surveillance of its employees' union activities, threatening to shorten its employees' job tenure for being active in a labor organization, promising employees benefits for not engaging in activities in behalf of a labor organization, and threatening the discharge of union men. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self- organization, to form labor organizations, to join or assist United Gas, Coke and Chemical Workers of America, CIO, or any other labor organization, 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, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : ' (a) Upon request bargain collectively with United Gas, Coke and Chemical Workers of America, CIO, as the exclusive representative of all its employees in the above-described bargaining unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such under- standing in a written and signed agreement. (b) Post at its facilities at Aiken, South Carolina, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof and be maintained by it for a period of at least sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. , * In the event that this Order is enforced by adecree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant lo a Decree of the United States Court of Appeals , Enforcing an Order." 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the said Regional Director for the Eleventh Region in writing, within ten (10) days from the date of this Order, as to-the steps the Respondent has taken to comply herewith. MEMBER RODGERS took no part in the consideration of the above De- cision and Order. APPENDIX NOTICE TO ALL EMPLOYEES . Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act, as amended, we hereby notify our employees that : WE WILL NOT refuse to bargain collectively with United Gas, Coke and Chemical Workers of America, CIO, as the exclusive representative of all employees of the fire department at our con- struction operations at the Savannah River project, Aiken, South Carolina, including firemen, fire-truck drivers, and inspectors, but excluding leaders, chief, assistant chiefs, captains, lieutenants, fire marshal, office clericals, guards, and supervisors as defined in the Act. WE WILL NOT attempt to engage in surveillance of our em- ployees' union activities, threaten to shorten the job tenure of our employees for being active in a labor organization, promise bene- fits to our employees for not engaging in activities on behalf of a labor organization, or threaten'to discharge union men. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise*of their right to self-organiza- tion, to form labor organizations, to join or assist United Gas, Coke and Chemical Workers of America, CIO, or any other labor organization, 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 protec- tion, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL, upon request, bargain collectively with United Gas, Coke and Chemical Workers of America, CIO, as the exclusive representative of all our employees in the above-described bargain- ing unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a written and signed agreement. - E. I. DU PONT DE NEMOURS & COMPANY, INC. 87 All our employees are free to become or remain members of the above-named Union or any other labor organization. E. I. Du PONT DE NEMOURS & COMPANY, INC., CONSTRUCTION DIVISION, SAVANNAH RIVER PLANT, Employer. Dated---------------- By---------7--------------------------- (Representative ) (Title) - This notice must remain posted for 60 days from the date hereof, and must-not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER . STATEMENT OF THE CASE Upon a charge filed by the United Gas, Coke and Chemical Workers of America, CIO, herein called the Union, the General Counsel by the Regional Director for the Eleventh Region (Winston-Salem , North Carolina ) of the National Labor Rela- tions Board, herein called the Board, issued his complaint dated June 30, 1954, against E. I. Du Pont de Nemours & Company, Inc., Construction Division , Savan- nah River Plant, 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 (a) (1) and ( 5) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 61 Stat . 136, herein called the Act. Copies of the complaint and the charge together with notice of hearing were duly served upon the Respondent and the Union. With respect to unfair labor practices , the original complaint alleged that begin- ning about August 24 , 1953, the Respondent refused to bargain with the Union, and thereby and by threats of discharge by Lieutenant P. L. Foster on or about January 20, 1954, engaged in interference, restraint, and coercion. On the first day of the hearing, August 23, 1954 , the General Counsel moved to amend the complaint to allege additional acts of interference , restraint, and coercion consisting of threats of discharge by Fire Chief D. L. Cliatt on March 1, 1954, promises of benefits by Leader F. M. Mizzell on March 1 , 1954; promises of benefits by Fire Chief Cliatt on February 1, 1954; and the urging of employees to engage in surveillance by Fire Chief Cliatt beginning about October 1, 1953.1 No objection was raised by the Respondent and the motion was granted . The Respondent's answer as amended at the hearing denies the commission of unfair labor practices. Pursuant to notice, a hearing was held on August 23 through 26, 1954, and on November 29 through December 2, 1954, at Aiken, South Carolina, before the duly designated Trial Examiner . Full opportunity to be heard , to examine and cross-examine witnesses , and to introduce evidence bearing on the issues was af- forded the parties. At the close of the testimony the General Counsel presented oral argument. Briefs were submitted by the General Counsel and the Respondent. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation , maintains an office and place of business at the Savannah River Plant, Aiken, South Carolina, the plant involved in these proceedings . During the calendar year 1953, which is -representative of the times material to the issues here presented, the Respondent at this plant purchased raw materials, supplies, and equipment valued in excess of $1,000,000, of which more than 90 percent in value originated outside the State of South Carolina and was shipped to this plant. The Respondent's operations at the Savannah River Plant 'The charge, alleging that the Respondent refused to bargain beginning September 23, 1953, and that thereby and by "other acts and conduct" the Respondent interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, was filed on February 24 and served on February 26, 1954 88 DECISIONS OF NATIONAL LABOR RELATIONS.BOARD have a real and substantial impact on national defense . The Trial Examiner, finds that the Respondent is engaged in commerce within the meaning of the Act .2 II. THE LABOR ORGANIZATION INVOLVED United Gas, Coke and Chemical Workers of America, CIO, is a labor organization admitting to membership employees of the Respondent. IH. THE UNFAIR LABOR PRACTICES A. The events On June 22, 1953, after a Board-ordered election, the Union was certified 3 as the exclusive representative under Section 9 (a) of all the employees in the follow- ing unit which the Board has found to be appropriate within the meaning of Sec- tion 9 (b) of the Act: All employees of the fire department at the Respondent's construction opera- tions at the Savannah River project, Aiken, South Carolina, including firemen, fire-truck drivers, and inspectors, but excluding leaders, chief, assistant chiefs, captains, lieutenants, fire marshal, office clericals, guards, and supervisors as defined in the Act. A few days before the election, which was conducted in March 1953, the Respondent wrote each of its employees advising them to vote against both of the two labor organi- zations competing for certification. Among other arguments, the letter, referring to the men in the unit as firemen and inspectors, pointed out that their function would continue only until the construction division of the Respondent completed the plant construction program. After the plant construction was completed, the letter stated, another division of the Respondent would take over the operation of the plant, and it did not know what the policy of the other division would be regarding the responsibility for fire protection. After pointing out to the men that their employment was limited to the duration of the construction program, the letter suggested that the men consider what union membership would get them at the conclusion of the construction program, and whether other employers would look with favor toward applicants who had shown that they preferred to deal with their Employer through such an outside agency. In June, after the election but prior to the Board's certification, a petition dated June 17 was circulated among the employees in the work area during working time by men using a vehicle which had been assigned to Lieutenant Westfall, a supervisor. The petition requested the Board to set aside the election and to hold another election. When Charles W. Newton, 1 of the 2 men who circulated the petition, approached a group of the men including Alton G. Fredericks" and Lieutenant Westfall, Newton stated that Klett, supervisor of the patrol and fire department, or Fire Chief D. L. Cliatt had said that if the men signed the petition and got rid of the Union they might get back pay to the date of the election. Newton stated further that Cliatt would know who did not sign the petition. Westfall, who like Fredericks read the petition, stated that the men should sign it if they knew what was good for them. After the signatures were obtained the petition was mailed to the Board, which by an order dated July 27, 1953, denied the petition. After the Board's certification issued there was an exchange of letters between the Union and the Respondent arranging for bargaining conferences. In the meetings which ensued, with some variation, the parties were represented, among others, by the following: for the Union, Clyde J. Massey and Wesley W. Vanover, international rep- resentatives, and a group of employees; for the Respondent, James W. Mercke, as- sistant field project manager in charge of labor relations and his assistant, William J. Bergin, and Thomas Ewing, service superintendent. Massey and Mercke acted as principal spokesmen. Each of the parties made clear early in the discussions that final approval of all matters negotiated rested with the membership of the Union or with management, respectively. During the month of July the parties met three times, July 8, 28, and 31. At the first meeting the Union presented a proposed contract consisting of about 20 mimeographed pages. At the second meeting the Union asked the Respondent whether it had drawn up its proposals. The Respondent stated that it had not drawn up proposals, explaining that it did not have sufficient time to study such a lengthy See E. I. Du Pont de l entows and Company, Inc, 107 NLRB 734 and 111 NLRB 649. 3 105 NLRB 710. E. I. DU PONT DE NEMOURS & COMPANY, INC: document as the Union's contract and preferred to work from the Union's proposals. The parties then undertook to go over the Union's proposals clause by clause. At the July meetings tentative agreement was reached on the following clauses in the Union's proposals-preamble, purpose, and recognition. At one of the July meetings, or at an August meeting, according to the Union, the Respondent informed the Union of forthcoming layoffs, and pending the completion of negotiations the parties agreed upon a method for effecting reductions in force as construction pro- gressed and the number of employees in the unit decreased. Contrary to the Union's testimony, the Respondent's version of this matter is that no agreement was reached concerning transfers of employees into the unit which would have the effect of displacing existing employees and that no agreement on layoffs was reached pending completion of negotiations. No agreement was reached during the July meetings on, among other things, union security, holidays, and layoff notices. The parties agreed to defer negotiations of economic issues, such as rates of pay, pending discussion of all other proposals. During the second meeting in July, the Respondent's principal negotiator stated that he could not understand why employees would want a union, he felt the employees could get everything it was possible to get without a union, he felt sure that in the future the men would probably be sorry they ever organized themselves into a union, and although there were many unions at the project and they had working agree- ments, none had a signed contract. This second meeting lasted 3 or 4 hours, ending at about 4 or 4:30 p. m. At the close of the meeting the Union sought to continue the next morning. The Union also suggested that the next meeting be scheduled for a sufficient duration so that the parties could go through all the clauses of the Union's proposals and see where they stood. The Respondent declined, explaining that there would be a conflict with other duties of its representatives. At the final meeting in July, the Union stated that it was going to file a dispute notice with the Federal Mediation and Conciliation Service. The Respondent took the position that the Company was complying with the law and bargaining in good faith and that it was premature to conclude that a dispute existed. In the final July meeing, or at this and subsequent meetings, the Respondent presented the Union with copies of its industrial relations plans and practices. These documents set forth the existing terms and conditions for all of the Respondent's employees with respect to such matters as life, accident, and health insurance, disability wages, pensions and retirement, vacations, layoff notices, and continuity of service. The parties conferred on four occasions in August-August 4, 7, 14, and 19. Among other matters discussed at these meetings were: vacations, seniority, veterans, handicapped employees , job posting, leaves of absence , arbitration, discharges, suspension, transfers of supervisors into the unit, safety, uniforms, management prerogative, jury duty, voting time, and selective service. Tentative agreement was reached on certain subjects, including vacations, handicapped employees, job posting, leaves of absence, uniforms, jury duty, voting time, and selective service. The parties disagreed upon the operation of a grievance procedure. The Union's proposal pro- vided for the presence of a union representative at the option of the employee at the first step of the grievance procedure. The Respondent opposed affording the employee an option of having a union representative at this stage, explaining that most complaints had been resolved at that level. According to the Union, an agreement was reached in principle upon its proposal, and, according to the Respondent, the Company never agreed to this proposal. During the August meetings the parties also discussed the duration of a con- tract, job classifications, and wages. The Respondent sought a contract for a dura- tion of 1 year from the date of certification with an automatic renewal. clause. The Union sought a contract for the duration of 1 year from the date of execution of the contract with an automatic renewal clause. The Union sought a 30-day wage reopening clause; and the Respondent stated its opposition to a reopening clause on wages, expressing the view that any agreement reached should be firm in its entirety for the life of the contract. Concerning job classification, the Union pro- posed recognition of several classifications as shown in the Board certification with certain rate differentials, but the Respondent insisted that there was only a single classification, fireman. On the matter of wages the Union proposed a 50-cent hourly wage increase, a 10-cent hourly wage differential for regular drivers and radio operators, a 25-cent differential for patrol and inspection work, and other benefits such as shift differentials and travel allowance. The Respondent took the position that it could not justify any change in the then current rate range schedule established for firemen, and that the costs to the Government at this project should not be more than the costs for similar work performed for other Government authorities or industries in the area. The Union contended that rates paid firemen 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at other projects of the Atomic Energy Commission, hereinafter referred to as AEC, were higher. The Respondent urged that a wage relationship with the other em- ployees at the project should be maintained and that any comparison of its wage rates with the wage rates at other projects should take into consideration the other benefits given by the Respondent. The Union also stated that it understood that the rates paid members of the fire department in the Respondent 's operations division at the project were higher than those paid firemen in its construction division. The Respondent replied it had no knowledge of the conditions in its operations divi- sion and that before a fair comparison could be made the relative responsibility of the men in its two-divisions would have to be taken into consideration. The Respondent asked that the Union present information for the Respondent's con- sideration which would support the Union's views. The Union did not present any data to support its wage demands. In discussing wages the Respondent informed the Union of a survey of earnings it had conducted based upon a 40-hour week at 4 other, AEC plants located in the States of Tennessee, Ohio, Illinois, and Kentucky. The substance of the information told the Union during the negotiations, expressed as a percentage ratio of the average earnings of firemen to manual employees based upon a 40-hour week, was that earnings of firemen at the Respondent 's project were about 1 point higher than the average percentage of ratio of the other 4 AEC plants, and that the highest percentage relationship at all plants between firemen and manual employees was about 6 points above the ratio at Respondent 's project and the lowest was about 14 points below the earnings at the Respondent 's project. To present this information to the Union on a percentage basis, the Respondent had to know the dollar figures to arrive at the percentage computations. It is admitted that the dollar figures that Respondent had ascertained in its survey es- tablished that the rate paid firemen at the Respondent's project was the lowest when compared with the other AEC projects. These dollar figures were not pre- sented to the Union iq the discussion. At various of the meetings thus far described the Union requested the Respond- ent to submit written counterproposals which would incorporate the matters upon which there had been tentative agreement and offer proposals which the Respondent would be willing to accept concerning matters upon which there was no agreement. The Respondent did not comply with these requests. Also, during the course of these meetings the Union stated that a dispute existed, naming as principal subjects of dispute, arbitration and union security, and that the Union had already notified the Federal Conciliation Service so that the necessary waiting period would run mean- while. The Federal Conciliation Service arranged for a meeting on September 23 and one of its conciliators was present in addition to the usual groups. At this and/or the meetings which followed, a conciliator of the South Carolina Department of Labor was also present. At the suggestion of a conciliator various provisions of the Union's proposed contract were reviewed and each of the parties stated its posi- tion. The Union suggested that a dispute existed, that it did not appear that the parties were going to reach an agreement, and that the matter should be referred to the Atomic Energy labor relations panel. The conciliator declined the Union's suggestion, explaining that a sufficient opportunity for conciliation had not been given the matter. It was agreed by the parties that the conciliator would arrange for the next meeting when he would be requested to do so by the Union. The parties did not meet again until January 19, 1954. Meanwhile certain other events of importance occurred. Beginning in September 1953, the Respondent through Fire Chief Cliatt and Chief Hewitt engaged in certain conduct regarding the Union. The first event occurred when Hewitt came to Wendel P. Baston, who had signed a membership card prior to the election and had paid dues for a membership card in the Union, and asked Baston if he had joined the Union. Baston replied he had not joined the Union. Hewitt stated that he understood that union membership cards were being issued for the payment of dues, and Baston replied that he thought that that was so and that he did not have a card. Baston explained that he thought the Union was whipped and he saw no point of putting any more money into the Union . Hewitt then told Baston to get a card and that he, Hewitt, and Cliatt would see to it that Baston would not lose anything. A few days later Hewitt told Baston to go to Cliatt's office and when Baston went there Cliatt asked Baston whether he had a union card. Baston replied that he had a card and upon Cliatt's request showed it to Cliatt. Thereupon Cliatt gave Baston $2.25 and told Baston to go to the meet- ing, find out all he could, and then report back. Cliatt also told Baston to try to dissuade the men from the Union . Thereafter from time to time until sometime before Baston's termination in February 1954 Cliatt asked Baston if he had been to E. I. DU PONT DE NEMOURS & COMPANY, INC. 91 union meetings and when the meetings were scheduled. Baston did not inform Cliatt of the Union's affairs and at one time told Cliatt that these matters were considered secret? - In December, the Respondent granted the employees in the unit (except for one employee who was terminated shortly thereafter) a wage increase amounting to about 10 percent or about $6 a week. According to the Respondent, the increases came about when it decided in the middle or latter part of November to reinstitute a merit increase system which it had suspended prior to the Board election. Further, according to the Respondent, it had a practice of not granting wage increases when employees showed an interest in seeking a bargaining representative. In effectuating the December increases, because of the amount of work entailed in processing the matter, the Respondent divided the staff of employees into three groups in accord- ance with seniority. The first of these groups was informed of the increase on De- cember 7, and the other two groups were informed of the increase on December 14 and 21. The Respondent instructed its supervisors to inform each of the employees individually of his increase. Employee Wasson, who was on the union bargaining committee, was, in accordance with seniority, in the first group of employees to re- ceive an increase. When Chief Drane informed Fredericks, who was also a member of the union bargaining committee, of the wage increase, they were alone. Drane told Fredericks that inasmuch as the Respondent had not heard anything from the Union and the negotiation meetings had been discontinued, the Respondent had decided to give the men a wage increase on its own because it believed the men de- served it. Drane continued that it was not much of an increase but it was more than the Union had done for them, and that Fredericks should not discuss the increase with anyone else as it might cause friction. When Assistant Chief Evans informed Julius F. Gaskins, who also appeared at the bargaining conferences as a member of the Union's committee, of his increase, they too were alone. Evans told Gaskins that the Union had abandoned the employees, that the Respondent felt the men deserved an increase and wanted to help them, that it was the Respondent who was giving them a raise and the Union had nothing to do with it, and that he should not tell anyone else about the increase. On the way to work one day in January 1954, prior to the meeting of January 19, Charles N. James, a member of the Union's negotiating committee, James' imme- diate supervisor, Lieutenant Foster, and employee E. Bush, who were all members of the same car pool, engaged in a conversation about James' making trips to Aiken where bargaining conferences were held. The conversation started outside the fence in the parking lot and was completed inside the fence. James, who had a friendly relationship with Foster and who with Bush shortly thereafter made a note of the incident, complained in this conversation about his back hurting. Foster stated that something else would be hurting if James kept making trips to Aiken and that if those trips continued it would shorten his job at the project. James, who asked for and was never refused permission by Foster before or after this event to' attend the negotiating meetings at Aiken, had not asked Foster for permission to leave the project for any other purpose. There are other events which began before the next negotiation meeting. The first event occurred in January when Fire Leader Frank M. Mizzell approached Fred- ericks and told Fredericks that he, Mizzell, had talked to Chief Cliatt and that Cliatt thought Fredericks was a good man and would like to see Fredericks get into the op- erations division. Fredericks, who had sought unsuccessfully to get into the opera- tions division and had talked with Cliatt on several occasions earlier about getting into operations, pointed out that he had made efforts to obtain a transfer. Mizzell stated that he would talk to Cliatt at his next opportunity. Thereafter Mizzell re- ported to Fredericks that Cliatt had stated that some of his men were on the Union's negotiating committee and that he, Cliatt, would like to get them off that committee. Mizzell stated that he felt certain that if Fredericks did not attend the other negotia- tion meetings Cliatt would make an effort to get Fredericks into operations. About a week later Fredericks went to see Cliatt and told Cliatt that he was planning to resign from the negotiating committee. Cliatt declared that he was glad that Fred- ericks was seeing things his, Cliatt's, way and was not fooling with the Union any- * These findings are based upon Baston's testimony. Cliatt denied that these events occurred. Hewitt did not appear as a witness Although the Respondent adduced certain testimony on the subject of Baston's credibility, the Trial Examiner was favorably im- pressed with Baston as a witness Cliatt, on the other hand, did not make such an im- pression There was no showing that Hewitt, who was no longer employed by the Re- spondent, was unavailable to testify. Other of Cliatt's denials concerning events dis- cussed hereafter are also not credited. I 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD more. Fredericks explained that he was doing what was best for his family and that he wanted a permanent job. Although Cliatt at first stated that there was noth- ing he could do to get the men into operations Cliatt thereafter stated that he had gotten other men into operations and placed a call to operations on Fredericks' be- half. Shortly thereafter Fredericks for the first time obtained an interview in operations .5 Sometime in February, Chief Cliatt approached Fredericks to get Fredericks to dissuade James and Wasson from attending the March negotiation meetings, ex- plaining that Lieutenant Foster had already talked to James and Wasson and that Foster could not do anything with them. Fredericks explained to Cliatt that both Wasson and James were strong union men and that he did not think he could help. Cliatt thereupon declared that he had ways of getting rid of men of that type.6 Returning to the bargaining conferences, as already noted, the parties met next on January 19. The Union asked how the Respondent could explain the recent wage increase when during the course of negotiations the Respondent' s consistent position had been that no increase in wages was justified. The Respondent stated that the increases given were merit increases and gave the Union a copy of a document entitled "Weekly Rate Salary Range-40 Hour Week." The document showed the date of issuance as October 1, 1952, established the merit range after training as $65.85 to $75 with a control point at $72.15, and provided for merit increases from 5 to 10 percent after 6 months of service. The Union asked if the yardstick for merit increases was length of service, and the Respondent's chief nego- tiator's reply was that it could be. The Union also asked if the yardstick was increased ability, and the same individual's reply to this question also was that it could be. The Union was informed upon its inquiry that almost all of the employees had received about a 10-percent increase? The Union, according to its version, requested, and the Respondent undertook to produce for the next negotiation meet- ing, a list showing as to each of the employees in the unit the date of hiring, the present rate of pay, and date and amount of last increase. According to the Re- spondent's version, the Union only asked the Respondent to furnish data as to the number of employees in each classification and the rate for that classification. The parties also discussed, at the January 19 meeting, recent reductions in force. The Union contended that in contravention of their prior agreement employees out- side the unit had been transferred into the unit and employees who had been in the unit were then laid off. The Respondent replied that the agreement which had been reached in July or August applied to the original layoff only. Except for the general statement, in July or August, that there would be layoffs in the future,' the Respondent had not given the Union specific notice of the most recent layoffs. During the course of the various meetings the Union had asked the Respondent to produce written counterproposals, which the Respondent had declined to do. At this meeting the Respondent first undertook to submit such proposals. The parties met again on February 5. At this time the Respondent presented the Union with documents concerning the wage increase matter. The document showed only the names of employees in the unit and that each employee had an earnings rate of $72 for a 40-hour week as of January 26. The Union contended that the Respondent had not fulfilled the undertaking to furnish information which it had made at the last meeting, and the Respondent insisted that it had only undertaken to supply the information it had presented. The Union at this meeting thereafter stated in writing the information it sought as to the employees then in the unit, in substance, as follows: (1) The date of hire, (2) the length of service, (3) a copy of work 5 These findings are based upon the testimony of Fredericks who impressed the Trial Examiner as a credible witness. Mizzell, who denied that these events occurred, did not make a favorable impression as a witness. His denials here and in other respects are not credited. The Respondent showed that 25 men were transferred from the construction to the operations division between March 1, 1953, and November 12, 1954, and that a known union man was among those who were so transferred Cliatt's testimony is to the effect that Fredericks stated that he had resigned from the Union and that he requested aid to obtain a transfer to operations Cliatt explained that he tried to help Fredericks obtain the transfer as he did with respect to the other men who had made such a request. 6 Cliatt denied making this remark 7 This finding, as to the information as to the approximate amount of increase, is based upon Ewing's credible testimony. Although Massey impressed the Trial Examiner as a reliable witness, in this instance, it is believed that Ewing's testimony which differs from Massey's version is the more accurate The Union knew from the representation proceed- ing in December 1952, that the rate for firemen and inspectors after a 90-day training period was $65 85 for a 40-hour week E. I. DU PONT DE NEMOURS & COMPANY, INC. ^ -93 schedule then in effect, (4) a copy of the job description for firemen, (5) the current rate ranges, and (6 ) the date on which each employee received his last wage increase and the amount. The Union also asked that this data be submitted to it prior to the next meeting so that it could study the material. The Respondent declined to do so. At this meeting of February 5, the Union again asked the Respondent to make complete written counterproposals. The Respondent stated that it was not sub- mitting a complete contract proposal inasmuch as there were so many areas of disagreement it was obvious that agreement could not be reached upon these matters and no useful purpose would be served thereby. The Respondent did submit written proposals in the following respects : (1) A provision that the Union would undertake not to intimidate any employee with respect to his right to work or union member- ship, and that there would be no solicitation of employees ,for membership or dues on the Respondent's time; (2) a provision relating to seniority ; (3) a wage provision with a range after 90 days of employment or $65.85 to $75 and essentially the same merit increase procedure as existed ; (4) a provision suspending such parts of the contract as might be declared to be illegal ; (5) a management prerogative clause; (6) a provision that management have the right to promote employees in the unit to positions outside the unit; (7) a provision that the document constituted the entire agreement between the parties; ( 8) a provision that union membership not be a condition of employment; and (9 ) a provision to the effect that the Respondent's industrial plans and practices subject to existing management interpretations and to such modifications as the Respondent might adopt in its plants generally, which relate to such matters as life, accident, and health insurance, pensions and retirement, disability wages, vacations, layoff notices, and continuity of service, apply to em- ployees in the unit so long as they were applicable to any other plant of the Re- spondent's plants. The Union then asked the Respondent if it would submit a complete proposal covering all matters it would accept as a contract. The Respond- ent replied that it did not have such a proposal and stated that the Union was putting too much burden upon it. The Union disagreed that the request was too burden- some in view of the Respondent's size. The Union rejected the Respondent's written wage proposal. It also rejected Re- spondent's industrial plans and practices proposal unless the Respondent would be willing to make those conditions irrevocable for the duration of the contract. Con- cerning the duration of the contract, the parties continued to hold their respective views, the Respondent insisting that the duration be for 1 year from certification, and the Union that it be for 1 year from the date of signing. The same situation pre- vailed concerning a grievance procedure, with the Union insisting that the em- ployees have the option of having a union representative present at the first stage and the Respondent taking a contrary view. The parties met next on February 16. At this meeting the Respondent furnished the Union with all the information concerning wage increases which the Union had sought at the prior meeting except for the data relating to the date of each employee's last increase and the amount. The Respondent took the position that these matters had already been furnished in another form in a prior meeting. The Respondent asked the Union for data supporting its wage proposals and according to the Union it stated that it would try to furnish the information . According to the Respond- ent, the Union did not make this undertaking . The Union asked the Respondent to furnish the rates of the other employees of the construction division at the project and also copies of the collective-bargaining contracts executed by the division. The Respondent, which does not have any written collective-bargaining agreements cover- ing the construction division at this project, declined both the requests. The Union suggested at this meeting that the parties go through its original proposed agreement which had been used as a basis of negotiations and initial the sections where there was agreement in principle . The Respondent declined, explaining that it treated the contract as a single package. The Union declared its position to be that no one section or any part of its contract proposals would stand in the way of reaching a complete agreement . The Union asked if the Respondent would be willing to sign a contract for a year, and the Respondent stated that it would not. The Union asked if the Respondent would sign a contract for any period of time, and the principal negotiator for the Respondent replied , "I don't know as I would." One of the conciliators suggested , according to the Respondent , that each of the parties present a new set of complete draft proposals "starting from scratch," dis- regarding everything that had thus far transpired . According to the Union, the conciliator suggested that the parties present a new set of proposals covering the matters as to which there was agreement in principle and make proposals as to mat- ters in dispute which could form the basis of an agreement . The Respondent asked 94 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD the Union if it would be willing to sign a proposed contract which the Respondent would draft for the next meeting, and the Union replied in the negative. The final negotiations meeting was held on March 4 . Prior to this meeting on February 24, the Union filed the charge in - this proceeding . At this meeting the parties exchanged proposals and no agreement was reached . Among other things, the Union proposed a union -security provision which included checkoff but not a union shop ; 8 a wage proposal after 90 days of employment for hourly rates as follows-firemen $2.05, fire-truck drivers $2.15, inspectors $2.25; a grievance pro- cedure providing for the presence of a union representative at the employee's option at the first step of the procedure and for arbitration ; a duration clause for at least 1 year from date of execution ; incorporation of the Respondent 's industrial rela- tions plans and practices for the life of the contract ; and a management preroga- tive clause. The Respondent proposed , among other provisions , a prohibition against solicitation for union dues or membership on the Respondent 's time with no provision for checkoff ; a single job classification with the same rates of pay as in the Respondent's February 5 wage offer except for the inclusion of merit in- creases which were expressly reserved to the discretion of the Respondent, and a provision that individual salary rates might not exceed the maximum rate of salary merit range and those in effect as of the execution date of the contract should not be increased during the life of the contract ; a grievance procedure which did not pro- vide for the presence of a union representative at the first step at the option of the employee and made no provision for arbitration ; a duration clause providing for the expiration of the contract on June 22, 1954, one year from the date of certifica- tion, and for renewal periods of one year thereafter unless either party gave notice of a desire to modify or discontinue the contract ; an offer of 7 holidays against its -prior offer of 6 holidays and the Union's proposal for 6 holidays; and incorporation of the Respondent's industrial relations plans and practices to be administered solely in accordance with the Respondent's rules and regulations, which rules and inter- pretations might be changed or withdrawn when in the Respondent 's judgment it became advisable, provided that so long as any plan remained in effect for the Respondent as a whole, the plan would not be withdrawn from the employees in- volved ; and a management prerogative clause. On the day following this meeting the Respondent mailed to the Union the re- sults of a survey of pay and hours of work of municipal fire department firemen in 10 States in the general region of South Carolina as of February 16, 1954. The parties had discussed this subject at the final meeting and the Union had then pointed out that the survey did not include the city closest to the project , Augusta, Georgia. In March after the final negotiation meeting, during a conversation between Chief Cliatt and Fredericks , Cliatt stated that the Union was being gotten rid of, and a decertification petition was mentioned . Fredericks offered to take the petition around to the men if the others of the bargaining committee agreed . Cliatt declared that he could not state the Respondent's views regarding the petition and would have to consult with management . Fredericks and Cliatt thereupon went to see management representatives , including Mercke, who advised that the Respondent could not have anything to do with the petition, that it was something the men would have to do themselves, and suggested that the Board would have to be contacted. Fredericks thereafter wrote the Board and before he received a reply Cliatt asked him several times about the status of the-matter and how the Union was coming along. After Fredericks received a reply from the Board , upon Cliatt's inquiry, Fredericks stated that he had received the reply. Thereafter Chatt asked Fredericks on several occasions whether he had done anything about the decertification peti- tion, and Fredericks replied that he had not . Upon Chatt's inquiry as to why Fredericks had not proceeded with the petition, Fredericks explained that he thought the men were not interested and that he believed that he could get into trouble in circulating the petition . Cliatt thereupon assured Fredericks that he did not have anything to worry about and that he, Cliatt , would look out for Fredericks. By letter dated April 19, the Respondent informed the Union that the firemen along with other employees would be given a 3-percent salary increase effective that date unless the Respondent was notified by the Union of objections within 3 days after the receipt of the letter. The Union replied on April 28, stating that it had no ob- jection to the wage increase but it felt that the increase was insufficient . The Union, 8 The Union's original proposal provided for a union shop. The South Carolina right-to- work law passed both houses of the legislature by March 18 , 1954, and was approved by the Governor the next day. South Carolina Laws, 1954 , Act No. 652. E. I. DU PONT DE NEMOURS & COMPANY, INC. 95 however, objected to the manner in which the increase was given contending that it substantiated the Union's assertion that the Respondent was refusing to bargain in good faith. B. The conclusions 1. Interference, restraint, and coercion It is found that by the following acts and conduct the Respondent engaged in inter- ference, restraint, and coercion in violation of Section 8 (a) (1) of the Act: (1) Chief Cliatt's instructions to Baston in September 1953 to attend a union meeting, find out about the activities, and report the information to Chatt; (2) Lieutenant Foster's warning to James in January 1954 that his job tenure would be shortened if he con- tinued to act on the Union's negotiating committee; ( 3) Fire Leader Mizzell's offer, and Chief Cliatt's participation in effectuating the offer, to Fredericks in January 1954 to try to obtain a transfer for Fredericks from the construction division to the more permanent operations division if Fredericks ceased acting on the Union 's negotiating committee; and (4) Chief Cliatt's threat to Fredericks in February 1954 that Cliatt had ways of getting rid of union men .9 In making these findings, consideration has been given to the Respondent's testi- mony that it had a policy of neutrality and that it had so instructed its supervisors. In view of the illegal conduct found above particularly that by Chief Cliatt, who, in addition to that conduct, made efforts to get Baston and Fredericks to try to dissuade the men from the Union, inquired of Baston as to whether he attended union meetings, and encouraged Fredericks to circulate a decertification petition , and the conduct of Chief Hewitt in interrogating Baston as to whether Baston joined the Union, it ap- pears that if the Respondent had a neutrality policy it was not put into practice. Whether or not the Respondent had a neutrality policy, there is no showing that the Respondent made such a policy known to its employees. 2. The refusal to bargain It is found that on June 22, 1953, and at all material times thereafter the Union was and now is the exclusive representative of the Respondent's employees within the meaning of Section 9 (a) in the following unit found to be appropriate within the meaning of Section 9 (b): All employees of the fire department at the Respondent's construction operations at the Savannah River project, Aiken, South Carolina, includ- ing firemen, fire-truck drivers, and inspectors, but excluding leaders, chief, assistant chiefs, captains, lieutenants, fire marshal, office clericals, guards, and supervisors as defined in the Act. In meeting the refusal-to-bargain allegation, the Respondent contends that the Union deliberately formulated excessive demands to create an impasse and that the Union called in the Federal Mediation and Conciliation Service in August 1953 to have the conciliation service declare that an impasse existed so that the matter could be referred to the Atomic Energy labor relations panel, which panel the Union, according to the Respondent, believed would be more likely to give the Union un- deserved and unwarranted concessions to which the Respondent would not otherwise agree. The Trial Examiner cannot find merit in this contention. The Respondent argues at the same time that the Union was also aware that any change in the estab- lished wage structure had to be justified to and approved by the AEC. It is also noted that prior to the time the Union called in the conciliation service, the Respond- ent had already stated, after it had had possession of the Union's proposals for about 20 days, that it did not have sufficient time to study the proposals; the Respondent's chief negotiator had stated that he felt the employees could get everything it was pos- sible to get without a union, that the men would probably feel sorry they ever engaged in self-organization, and that there were no signed contracts at the project; and the Respondent would only meet for relatively short periods of time. Concerning merit increases, which the Respondent granted in December 1953, the Respondent explains that during the period of the election in early 1953 and through the period of negotiations it temporarily suspended its established plan of periodic regular review of performance and its 10-percent maximum merit increases for firemen, due to the pendency of the Board election, the ensuing certification and re- quest for bargaining. The Respondent states further that during this period of almost ° See, Local 169. Industrial Division, International Brotherhood of Teamsters, etc, 111 NLRB 460 ; and Knickerbocker Dfanufacturenq Company, Inc . 109 NLRB 1195 It is noted that the conduct described above was directed toward the elimination of the Union and toward getting employees to cease acting on the Union 's negotiating committee and is related to the refusal-to-bargain allegation. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a year when several periodic reviews were passed over certain ' pay inequities de- veloped between the firemen and the other employees ; that the Union made no efforts to meet further from the meeting of September 23, when the Union stated that it would contact the conciliators to arrange the next meeting , to the middle or latter part of November when the Respondent decided to reinstate the suspended merit system ; and that the Respondent was either without knowledge as to whether the Union had abandoned the employees or that it concluded the Union had abandoned the employees . The Respondent points out also that Wasson, a member of the negotiation committee, was in the first group of employees to receive an increase on December 7, and contends, although it regarded employee members of the committee merely as observers , that notice was thus given to the Union through Wasson. No merit can be found in these contentions either . It would have taken but little effort for the Respondent to contact the Union in November to inform the Union that it was considering the wage increases. If the granting of an increase to Wasson can be regarded as notice to the Union , the Union was merely being presented with notice of an accomplished fact. The Act requires more: it requires notice to the bargaining agent and an opportunity to negotiate proposed changes.1° In determining whether the Respondent has bargained in good faith, consideration must be given to the illegal conduct directed toward the elimination of the Union found above which the Respondent engaged in while conducting negotiations with the Union. Relevant too is the conduct engaged in by Chiefs Cliatt and Hewitt set forth in the treatment of the Respondent's neutrality position . The Respondent's declared opposition to the self-organization of its employees prior to the election and its par- ticipation in a decertification petition after the election when it failed in its opposition to the self-organization efforts of its employees are also significant in appraising the Respondent's attitude thereafter toward bargaining with the labor organization which was successful at the election. There are other events which occurred during the course of the bargaining con- ferences themselves which also reflect on the Respondent's attitude: (1) The Re- spondent's declaration that the employees would be sorry they ever selected a union; (2) its explanations for not making written counterproposals-that it did not have sufficient time to study the Union's proposals after having had them for about 20 days, that no useful purpose would be served by presenting counterproposals because of the wide area of disagreement, and that it would be too much of a burden on the Respondent to present a complete proposal as to all matters it would accept as a contract; (3) its position on information and supporting data-stating that it had no knowledge of conditions in its operations division; requesting the Union to submit data to support the Union's contention that wages were higher at other AEC plants when the Respondent possessed information which would tend to sub- stantiate the Union's contention; declaring, upon inquiry by the Union as to the merit system, that the system could be based upon length of service and also that the system could be based upon increased ability; and refusing to submit information for study prior to a negotiating meeting; (4) its insistence upon provisions relating to terms and conditions of employment such as insurance, pensions, and retirement, under which these benefits could be revoked or modified by the Respondent during the life of the contract, while opposing the Union's proposed wage reopening clause on the ground that agreements reached should be firm for the life of the contract; and (5) its declaration in a discussion as to the duration of the contract when asked by the Union if it would be willing to sign a contract for any period of time, that it did not know that it would. In view of the above factors reflecting upon the Respondent's good faith in deal- ing with the Union and in view of the Respondent's grant of unilateral wage increases, its insistence upon a contract limited to the certification year, its failure to make timely written counterproposals, and its insistence upon a grievance procedure which would preclude a bargaining agent from being present at the initial adjustment stage of a grievance,ll it is found that beginning August 26, 1953, the Respondent refused to bargain with the Union in violation of Section 8 (a) (5) of the Act. 10 "Good faith compliance with Sections 8 (a) (5) and (]) of the Act presupposes that an employer will not alter existing `conditions of employment' without first consulting the exclusive bargaining representative selected by his employees , and granting it an oppor- tunity to negotiate on any proposed changes. See N. L. R B. v. Crompton-Haghland Mills, 337 U S. 217, 224; May Department Stores Co. v N. L. R B , 326 U. S . 376, 383-385." N. L R. B v. Armstrong Cork Co, 211 F 2d 843, 847 ( C A. 5) enfg 103 NLRB 133 13 See Bethlehem Steel Co ., 89 NLRB 341 , set aside on other grounds 191 F. 2d 341 (C A., D. C). - E. I. DU PONT DE NEMOURS & COMPANY, INC. 97 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection wtih the operations of the Respondent in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce 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 engaged in unfair labor practices violative of Section 8 (a) (1) and (5) of the Act, it will be recommended that the Respond- ent cease and desist therefrom and take certain affirmative action designed to effectu- ate the policies of the Act. Having found that the Respondent interfered with, restrained, and coerced its employees by the conduct enumerated in the section herein entitled, "B. The con- conclusions," the Trial Examiner will recommend that the Respondent cease and desist from this conduct. The Respondent, by a motion to reopen the record dated February 25, 1955, con- tends that any issue as to the allegation of a refusal to bargain has become moot and seeks to show, that since February. 18, there has been no persons actively em- ployed in any of the classifications enumerated in the Board's unit finding, that the principal functions formerly performed by these persons have not been transferred to other employees in the construction division, and that the positions involved have been eliminated in keeping with a program of closing the activities of this division at the project. The General Counsel, in opposition to this motion, contends that the matters sought to be adduced are immaterial to the unfair labor practice issues involved and are matters of compliance only and should not be litigated at this time. The General Counsel, contending that the Respondent may be under a duty to bar- gain with the Union as to its present fire protection employees, points out that the record as it stands shows that firemen were transferred from the construction to the operations division,12 and that the operations division has been gradually taking over functions which had been performed by the employees in the certified unit. The issues raised appear to be principally matters of compliance and relate only to that part of the usual affirmative order which directs bargaining. There is no way of knowing at this time whether any of the parties would raise any issues as to com- pliance with this part of -the order, or whether any such issues if raised will remain unresolved. If there should be unresolved issues on compliance which require Board action, the 'Board may be petitioned at that time.13 The Respondent's motion to reopen the record is considered premature and is accordingly denied. There- fore having found that the Respondent has refused to bargain, it will be recom- mended that the Respondent cease and desist from this conduct and upon request bargain collectively with the Union with respect to rates of pay, wages, hours, and other terms and conditions of employment. The Respondent's infractions of Section 8 (a) (1) and (5) of the Act, herein found, disclose a fixed purpose to defeat self-organization and its objectives. Be- cause of the Respondent's unlawful conduct and its underlying purposes, the Trial Examiner is persuaded that the unfair labor practices proscribed by the Act, and the danger of their commission in the future, is to be anticipated from the course of the Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the remedial order is coextensive with the threat. In order, there- fore, to make effective the interdependent guarantees of Section 7, to prevent a re- currence of unfair labor practices, and thus to effectuate the purposes of the Act and thereby minimize industrial strife which burdens and obstructs commerce, it will be recommended that the Respondent cease and desist from infringing in any manner upon employee rights guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. United Gas, Coke and Chemical Workers of America, CIO, is a labor organi- zation within the meaning of Section 2 (5) of the Act. 2. All employees of the fire department at the Respondent's construction opera- tions at the Savannah River project, Aiken, South Carolina, including firemen, fire- 1' See, for example, footnote 5. 1' See, N L R B. i Arnolt Motor Co, 173 F 2d 597 (C. A. 7). 390600-56-vol 115-8 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD truck drivers, and inspectors, but excluding leaders, chief, assistant chiefs, captains, lieutenants, fire marshal, office clericals, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. The above-named labor organization was, on June 22, 1953, and at all times material thereafter, the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on and after August 26, 1953, to bargain collectively with the above-named labor organization as the exclusive representative of the employees in the appropriate unit found above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By attempting to engage in surveillance, threatening to shorten job tenure for being active in self-organization , promising benefits not to engage in activities on be- half of a labor organization , threatening the discharge of union men , and by refusing to bargain collectively with the aforementioned labor organization and thus inter- fering with, restraining, and coercing its employees in the exercise of the rights guar- anteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Armour and Company and United Packinghouse Workers of America, AFL-CIO, Petitioner. Case No. 10-RC-361. January 18, 1956 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Gilbert Cohen, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The petitioning labor organization claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning-of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. At the hearing the Petitioner amended its petition for a unit of "all salesmen" at the Employer's Atlanta plant to one of "all general line salesmen and service salesmen, excluding specialty salesmen, grocery products salesmen, and all other employees." The Employer contends that the all-inclusive salesmen unit originally petitioned for is appropriate. The Petitioner already represents the Employer's production and maintenance employees and truckdrivers. We find no merit in the Employer's contention that the Petitioner may not repre- sent a unit of salesmen, and accordingly deny its motion to dismiss made on that ground. 115 NLRB No. 19.