Continental Oil Co.

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lack of employees at the time of the hearing,' renders the unit in- appropriate. We find, therefore, that the following employees at the Employer's Salt Lake City, Utah, plant, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section'.) (b) of the Act : All shop employees, including journeymen mechanics, apprentices, and helpers, but excluding office and clerical employees, sales em- ployees, janitor, inventory clerk-tool checker, comptroller, sales engi- neer, industrial engineer, construction nian, sales manager, construc- tion manager, salvage manager, parts department manager, shop manager, and all other supervisors as defined in the Act.- 5. The determination of representatives : The Employer would include among those eligible to vote, and the Union would exclude, two part-time students employed as apprenticeL" by the Corporation. These two employees are studying for engineer- ing degrees at the State University at Salt Lake City. They regularly work from 10 to 18 hours each week, depending on their class schedules. They have been working on this basis for over 4 months and will con- tinue to do so until they graduate in about 3 years. They perform the same work as other employees in the unit, receive the same wages, and share in other employee benefits. We find that, as regular part- time employees, they are eligible to vote in the election directed herein?" [Text of Direction of Election omitted from publication in this volume.] 16 See C. G Mayrose, an Individual, d/b/a C C Mayrose Planing Mill, 89 NLRB 959; Armour f Co, d/b/a Armour Creameries, 63 NLRB 1214 17 The parties are in disagreement as to whether certain part-time employees should be included in the unit However, our unit finding is based upon functionally related occupational categories, and all employees working at jobs within the unit are necessarily included and entitled to representation, irrespective of the tenure of their employment. The separate issue of the voting eligibility of such employees will be discussed in paragraph numbered 5, infra Gerber Products Company, 93 NLRB 1668 i8 Evening News Publishing Company; 93 NLRB 1355; Leedon Webbing Company, 81 NLRB 216. While the Union asserts, in its brief, that the part-time employees have not been covered by the past bargaining contracts, the record fails to support this contention and, in any event, such circumstance is without contiolling Significance. Cf. Scranton Battery Corporation, 89 NLRB 608. CONTINENTAL OIL COMPANY and LOCAL UNION No. 193, IN'T'ERNA- TIONAL CHEMICAL WORKERS UNION, A. F. L. Case No. 15-Cft-O 91. July 03, 1951 Decision and Order On February 13, 1951, Trial Examiner Eugene F. Frey issued his Intermediate Report in this proceeding, finding that the Respondent 95 NLRB No. 53. CONTINENTAL OIL COMPANY 359 !had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain af- firmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the General Coun- sel filed exceptions to the Intermediate Report and 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.2 The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in the case,3 and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner, with the following additions and modifications. 1. We agree with the Trial Examiner that the Respondent violated Section 8 (a) (1) and (5) of the Act by its admitted refusal to bar- gain with the Union respecting the head roustabouts on and after June .21, 1950, and by its unilateral actions relating to their wages and -working conditions on and after November 16, 1950. The crucial question in this case is whether the head roustabouts were supervisors on or after June 21, 1950. The Respondent has consistently and continuously contended that,. since August 23, 1947, the effective date of the amendments to the Act, the head roustabouts have been supervisors within the meaning of the amended Act and properly excluded from the bargaining unit; the Union has contended that they are employees. During the negotiations for the 1948 con- tract, when the issue first arose, the parties agreed to invoke the proc- ,esses of the Board to resolve that problem.4 Thereafter, the Union filed a petition for representation of the head roustabouts in Case No. 15-RC-260, and on August 24, 1949, the Board issued a Decision and 'Order (85 NLRB 827) finding that the head roustabouts were super- visors, as defined in Section 2 (11) of the amended Act, solely on the around that they apparently had authority responsibly to direct other I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this proceeding to a three-member panel '[Members Houston, Murdock, and Styles]. s We find no prejudicial error in the Trial Examiner 's rejection of certain exhibits proffered by the Respondent . These exhibits were introduced for the purpose of demon- strating that in its plan of reorganization and decentralization , first formulated in 1949, the Respondent contemplated generally delegating authority to individuals in the field. As these general documents made no reference to head roustabouts , whose status is at issue in this case, they were properly considered immaterial . In any event , we note that the Trial Examiner did permit the Respondent to elicit testimony directed at establishing the same general point sought to be proved by the documents in question and did receive in evidence the revised job description of the head roustabouts which had been officially approved by September 8, 1950. 3 The Respondent's request for oral argument is.. denied because in our opinion the record and briefs adequately present the issues and positions of the parties. 4 The Respondent informed the Union that it would not bargain concerning the head roustabouts because they were supervisors but that the Union could obtain a Board determination of the question. The Union filed a charge in Case No . 15-CA-90, alleging that the Company had refused to bargain as to the head roustabouts , but later withdrew the charge, substituting the petition in Case No . 15-RC-260. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees.5 On October 13, 1949, the Union petitioned the Board for an order reopening the case for the purpose of taking additional evi- dence on the functions and status of the head roustabouts, and such an order was issued. Following a second hearing, and on the basis of the additional evidence elicited, the Board issued, on January 9, 1950,, a Supplemental Decision and Order (88 NLRB 19) reversing its origi- nal decision and finding that the head roustabouts did not in fact responsibly direct other employees within the meaning of Section 2 (11) because their direction was of "a merely routine nature," not involving the "use of independent judgment." The Board therefore held that the head roustabouts were properly included in the existing production and maintenance unit for which the Union was the recog- nized majority representative. On August 7, 1950, after the Respondent continued in its refusal to bargain with respect to the head roustabouts, the Union filed the charge in the present case. Thereafter, on September 15, 1950, the Respond- ent moved for reconsideration of the Board's Supplemental Decision in the representation case, alleging that on or about August 28, 1950,. following that decision, it had "fully and effectually removed" any question which "may have existed as to the supervisory status of head roustabouts," by formally delegating to them "additional and specific" supervisory authority. The Union opposed reconsideration of the representation case because of the pendency of the present charge, and the Board denied the motion, "without prejudice" to any future litiga- tion of the status of the head roustabouts. In litigating that question before the Trial Examiner, the Respond- ent contended, as it does here, that the Board erred in its supplemental decision, of January -9, 1950, finding the head roustabouts to be em= ployees, and urged reconsideration of that decision. The Trial Exam- iner, however, properly refused to reexamine the decisions made by the Board in the earlier representation proceedings For the reasons , Section 2 (11) reads : "The term 'supervisor' means any individual having authority,. in the interest of the employer, to hire, transfer , suspend, lay off, recall , promote, discharge, assign , reward, or discipline other employees , or responsibly to direct them, or to. adjust their grievances , or effectively to recommend such action , if in connection with the foregoing the exercise of such authority is not .of a merely routine or clerical nature, but requires the use of independent judgment." 6It has long been the policy of the Board,.sanctioned by the courts, that in cased Involv- ing an alleged refusal to bargain the Board will not reconsider issues disposed of in earlier representation proceedings unless there is evidence which was unavailable at the time of the, earlier proceedings . See Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U. S. 146, 162; Allis-Chalmers Manufacturing Co. v. N.. L. R. B., 162 , F. 2d.435, 441 (C. A. 7 ) ; N. L. R. B. v. Botany Worsted Mills, 133 F. 2d 876 , 882 (C. A. 3 ) ; Clark Shoe Company, 88 NLRB 989, 996; Goodyear Rubber Sundries, Inc., 92 NLRB 1382. While the Board , as noted above , denied the Respondent 's motion to reconsider the supplemental decision of January 9, 1950, "without prejudice" to any future litigation of the issue, the clear import of that order was to permit , as the Trial Examiner did , the introduction of evidence bearing upon any changes in the status of head roustabouts which may have occurred after the hearing. on which the Board's supplemental decision was based. CONTINENTAL OIL COMPANY 361 stated in the supplemental decision of January 9, 1950, we find that up to and including November 22, 1949 (the date of the second hearing in the representation proceeding), the head roustabouts involved herein were not supervisors within the meaning of the Act. As set forth in the Intermediate Report, the Respondent embarked in the latter part of 1949 upon a reorganization program involving, among other things, the preparation of new job descriptions, including that of the head roustabouts. The record shows, and the Trial Exam- iner found, that the new job description of the head roustabouts was not officially communicated to the head roustabouts until November ,08,19.50,-2 days before the present hearing- when they were assem- bled and advised that they had the responsibilities and were required to perform the duties set forth in the new job description. We agree. with the Trial Examiner, that, whatever its content, the new job de- scription affords no basis for any conclusion that the head roustabouts were supervisors until the new duties and responsibilities were com- municated to these employees.? Moreover, for the reasons noted by the Trial Examiner, we attach no controlling significance to the fact that in the period before the new job description was communicated to these individuals the method of payment for head roustabouts was changed, or the fact that they attended meetings of supervisory of- ficials. Accordingly, we conclude that at least until November 28, 1950, the head roustabouts remained employees and were not supervisors within the meaning of the Act. It follows, therefore, that the Re- spondent's admitted refusal to bargain with respect to these employees on and after June 21, 1950, and its unilateral action prior to November 28, 1950, in changing the job description and revising the rate and method of pay for head roustabouts violated Section 8 (a) (5) and 8 (a) (1) of the Act, and we so find. This conclusion disposes of the basic allegations of the complaint, but leaves unresolved the problem of the remedy, for an order to bargain operates in futuro and the Board is without authority under the amended Act to order an employer to bargain with respect to supervisors.8 If, therefore, the job description, when communicated to them on November 28, 1950, vested in the head roustabouts duties and responsibilities sufficient to constitute them supervisors within the meaning of Section 2 (11) of the Act, such an order would not now be appropriate. 7 See Restatement of the Law of Agency, § '1 (subsection 1) ; Geo. Knight & Co., 93 NLRB 1193; United States Gypsum Company , 91 NLRB No. 33; 92 NLRB 18. 8 Section 14 (a) of the Act provides that "no employer shall be compelled to deem individuals defined herein as supervisors as employees for the purpose . . . collective bargaining." The Board has no authority to order an employer to bargain with super- visors. See L. A. Young Spring .& Wire Corporation v. N. L. R. B., 163 F. 2d 905 (C. A. D. C.), certiorari denied 333 U. S. 837; Marshall and Bruce Company, 75 NLRB 90, 93. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner apparently assumed that if, in fact, the job description in question reflected the actual authority vested in the head roustabouts, such authority would be sufficient to constitute these individuals supervisors. He concluded, however, that in view of the Respondent's timing in effectuating the new, job description, the cir- cumstances under which-the change was made, and certain testimony indicating that the duties of head roustabouts were unaffected by the new job description, no real change had been effected, or was sought to be effected, and that the head roustabouts remained employees. Although we reach the same ultimate conclusion, we do not agree with this approach to the problem. We have carefully examined the job description in question, point by point, and, for the reasons stated below, conclude that the authority delegated therein fails to change the status of head roustabouts from "employees." It is therefore un- necessary for us to consider the Respondent's motive in promulgating the job description, or the circumstances under which it was done. It suffices that even assuming that the Respondent honestly intended thereby to make the head roustabouts supervisors,0 and even though the job description did effect some change in the duties and responsi- bilities of head roustabouts, the,job description itself fails to demon- strate any change sufficient to constitute them supervisors within the meaning of the Act. The job description lists 15 specific responsibilities and objectives. Many are clerical in nature.10 - Those duties which sound of super- visory authority are circumscribed by limitations, either in the author- ity granted 11 or in the specific conditions placed upon the exercise of ° See N. L. R. B. v. Brown & Sharpe Mfg. Co., 169 Y. 2d'331, 332 (C. A. 1). 10 E. g. , the head roustabouts record and report the hours worked and the allocation of the work to jobs performed by the crew ; maintain the material and equipment used to provide for the safety of the crew , inspect and test completed work ; and estimate, upon request, the labor, equipment , and material required to perform , specific jobs related to his assigned functions . - These tasks are nonsupervisory . See N. L. R. B. v . Brown & Sharpe Mfg. Co., 183 F. 2d 259 ( C. A. 1), enforcing 87 NLRB 1031 ; The Baltimore Transit Com- pany, 92 NLRB 688; Radio Industries, Inc., 91 NLRB No. 124. 11 Thus, although the head roustabouts are authorized to "supervise and direct" the work of certain employees , "to plan and schedule the work assigned to his crew ," and "to recommend crew additions or replacements , promotions , transfers , disciplinary actions and terminations ," the grants of power do not indicate that the power to direct involves the exercise of independent judgment or constitutes responsible direction ; that the work assignments which are specifically limited to the interchange of employees within the crew involve more than the assignment of such employees to duties which the Board has found to be routine ; or that recommendations will be given effect without an independent investigation by the head roustabouts ' supervisors who have a parallel power of recom- mendation for the same employees . Accordingly, the unqualified statement of such authority cannot suffice to evidence supervisory status . See The Baltimore Transit Company, supra; Continental Oil Company, 88 NLRB 19 ; United States Gypsum Company, 92 NLRB 18; Southern Industries Company, et al., 92 NLRB 998 ; United States Gypsum Company, 90 NLRB 964 ; General Finance Corporation, 88 NLRB 1031 , footnote S. Certainly, the use of "supervise" adds no more than the use of the title "supervisor," which cannot itself suffice to establish the status . See Silverwood's, 92 NLRB 1114 ; Beatrice Foods Com- pany, 84 NLRB 512. A similar uncertainty exists concerning what power the head roustabout may have "to hear, discuss and investigate grievances and to settle grievances within his authority as CONTINENTAL OIL COMPANY 363 such authority." Even the general statement of the head roustabouts' "authority" indicates that the Respondent did not contemplate "the use of independent judgment" on the part of the head roustabouts, who are authorized merely to take "any reasonable action necessary . . . so long as such action does not deviate from established company policies and practices." Under all the circumstances, we are satisfied that even after the new job description was communicated to them, the head roustabouts possessed no real authority to take the kind of personnel action contemplated by Section 2 (11) of the Act, or "effec- tively to recommend" such action, as the Board has construed that phrase. Although the head roustabouts do direct the work of other employees, such direction remains as routine in nature and requires as little use of independent judgment as that which the Board found to be true in the period covered by the record in the representation proceeding. Accordingly, we conclude that after November 28, 1950, as before the head roustabouts were employees within the meaning of the Act, and that it is therefore appropriate to issue a'ba.rgaining order based on the violations of Section 8 (a) (5) found above. 2. The General Counsel, in addition to contending that the head roustabouts have never been made supervisors within the meaning of the Act, urged : (1) That even if the Respondent had succeeded in changing the status of these individuals, it violated the Act by having done so for the purpose of removing them from the bargaining unit, and (2) that, in any event, the Respondent was under a statutory duty to bargain with the Union for the purpose of determining the terms and conditions under which rank-and-file employees within the bar- set by his supervisor." At the time of the hearing , the head roustabouts' supervisors had not specified that they had authority to settle any grievances . See The Baltimore Transit Company, supra. Moreover, any authority to settle merely minor difficulties would not amount to the power to "adjust their grievances ," as included among the statutory indicia of supervisory status, Zone Oil Trucking Corp ., 91 NLRB 541. 32 Thus the head roustabout is limited to action based "on instructions from his super- visor" in directing the work of employees on lease facilities and in inspecting and directing work of contract labor and equipment . He is also limited to following "established company policy " in (a) relieving from duty with recommendation for disciplinary action any member of his crew for infraction of rules which require disciplinary action by established company policy ; (b) authorizing overtime , except in cases of emergency ; and (c) exercising any authority. These limitations strongly suggest that any exercise of the authorities granted is merely routine. As the head roustabout is authorized to direct certain work only "on the instruction of his supervisor ," he is merely empowered to transmit orders, not responsibly to direct. See Oliver Machinery Company, 93 NLRB 731. (They similarly serve as conduits for company policy by being required to attend and participate in supervisors' and safety meetings that each may "keep his crew informed of company rules, policies, plans and . procedures relating to their work and conditions of employment .") The required observance of "established company policy " leaves no latitude for independent judgment in the disciplinary action authorized . See Union Street Railway Company, 93 NLRB 782; Southern Indu.stries -Company, et at., 92 NLRB 998 . And the same restriction applies to the authorization of overtime , except in those cases of emergency , when the situation would obviously call for the grant of overtime. See Silteracood's, 92 NLRB 1114. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining unit are promoted to supervisory status. Each of these novel issues presupposes a finding that the Respondent did in fact convert the head roustabouts to supervisors. As we have found to the con- trary, it is unnecessary for us to pass upon these issues and nothing herein shall be construed as a determination of them. Order Upon the entire record in this 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, Continental Oil Company, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Local Union No. 193, International Chemical Workers Union, A. F. L., as the exclusive representative of all permanent employees at Respondent's gasoline plant and field operation at Ville Platte, Louisiana, including head roustabouts but excluding chemists, petroleum engineers, material man, gatemen, farm bosses, all supervisors as defined in the Act, and office and clerical employees. (b) Interfering in any manner with the efforts of Local Union No. 193, International Chemical Workers Union, A., F. L., to bargain collectively with Respondent on behalf of all employees in the afore- said unit. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Local Union No. 193, International Chemical Workers Union, A. F. L., as the exclusive bar- gaining representative of all the employees in the aforesaid 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 understanding in a signed agreement. (b) Post at its gasoline plant and field operation at Ville Platte, Louisiana, copies of the notice attached hereto and marked "Appen- dix A." 13 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by authorized representatives of Respondent, be posted by Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 13 In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words, "A Decision and Order," the words , "A Decree of the United States Court of Appeals Enforcing." CONTINENTAL OIL COMPANY 365 (c) Notify the Regional Director for the Fifteenth Region in writ- ing, within ten (10) days from the date of this Decision and Order, -what steps Respondent has taken to comply herewith. Appendix A 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 Relations Act, we hereby notify our employees that : WE WILL NOT refuse to bargain collectively with LOCAL UNION No. 193, INTERNATIONAL CHEMICAL WORKERS • UNION, A. F. L., as the exclusive representative of all our employees in the bargain- ing unit described below. WE WILL NOT in any manner interfere with the efforts of the above-named union to bargain collectively with us on behalf of .all our employees in said bargaining unit. WE WILL bargain collectively upon request with LOCAL UNION No. 193, INTERNATIONAL CHEMICAL WORKERS UNION, A. F. L., as the exclusive representative of all our employees in the bargain- ing unit described below, 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 signed agreement. The bargaining unit is : All permanent employees at our gasoline plant and field operation at Ville Platte, Louisiana, including head rousta- bouts but excluding chemists, petroleum engineers, material man, gatemen, farm bosses, all supervisors as defined in the Act, and office and clerical employees. All our employees are free to become or remain members of the above-named union or any other labor organization. CONTINENTAL OIL COMPANY, Employer. Dated ------------------ By --------------------------------- (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 duly filed on August 7, 1950 , by Local Union No. 193, Inter- national Chemical Workers Union, A. F. L., hereinafter called the Union, the General Counsel of the National Labor Relations Board , herein called the General 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel and the Board, respectively, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued a complaint dated November 13, 1950, against Continental Oil Company, herein called the Respondent, alleging that 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 National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charge, complaint, and notice of hearing thereon were duly served upon Respondent and the Union. With respect to the unfair labor practices, the complaint, as amended, alleges in substance that: (1) All permanent employees of Respondent at its gasoline plant and in its field operation at Ville Platte, Louisiana, excluding chemists,. petroleum engineers, material man, gatemen, farm bosses, all supervisors as defined in the Act, and office and clerical employees, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act, and head roustabouts of Respondent at Ville Platte are "employees" within; the meaning of Section 2 (3) of the Act; (2) at all times since February 17, 1945, the Union has been and now is the exclusive representative of all employees in the above unit; (3) on and after June 21, 1950, the Union requested Respondent. to bargain collectively with it as such representative of all employees in said unit, particularly the head roustabouts, but Respondent has always refused to do so, and, in particular, Respondent on July 28, 1950, prepared new. job descrip- tions for head roustabouts, and on September 8, 1.950, put them into effect, and on November 28, 1950, changed the rate of pay of head roustabouts by placing them on a monthly salary instead of an hourly pay basis effective November 16,. 1950, all without consulting with or advising the Union ; and (4) by such conduct Respondent has violated Section 8 (a) (1) and (5) of the Act. Respondent duly filed an answer which, as amended, admitted: (1) The alle- gations of the complaint as to the nature and extent of its business ; (2) the status of the Union as a labor organization; (3) that the unit of employees described in the complaint is an appropriate unit for bargaining purposes, with the exception of the head roustabouts; and (4) that it has since June 21, 1950, refused to consult or bargain with the Union as to the head roustabouts, but denies the commission of any unfair labor practices. As affirmative defenses, the amended answer alleges in-,substance that: (1) Since the effective date of the amended Act, the head roustabouts have been and are supervisors, and not employees within the meaning of Section 2 (3) of the Act, they have not been and are not now within the unit aforesaid, and Respondent has not been under obligation to bargain with the Union as their representative ; (2) on August 24, 1949, the Board found in -Case No. 15-RC-260' that the head roustabouts were supervisors and not eligible for inclusion in the appropriate unit ; and (3) since the Board's supplemental decision of January 9, 1950, in the same case,' Respondent has delegated additional and specific authority to the head roustabouts, pursuant to a company plan of reorganization and decentraliza- tion of supervisory duties and authority, which now makes them supervisors. Pursuant to notice, a hearing was held on November 30 and December 1, 1950, at Ville Platte, Louisiana, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel and Respondent were represented by counsel, and the Union by counsel and an official representa- tive. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence on the issues was accorded all parties. During the hearing motions of General Counsel to amend the complaint, and motions of 185 NLRB 827. 2 25 LRRM 1274; General Counsel's Exhibit No. 6. CONTINENTAL - OIL COMPANY 367 Respondent to make conforming amendments to its answer , were granted. At the close of General Counsel's case, Respondent 's motion to dismiss the com- plaint on the merits was denied. During Respondent's case, the General Counsel objected to admission of any testimony, and moved to strike such testimony admitted over his objection , relating to the creation, issuance , and progress of Respondent's plan of reorganization and decentralization of authority among officials and supervisors at all levels ; the Trial Examiner reserved decision on the,motion and objections ; they are disposed of by - the findings and conclusion reached in this Report. At the close of the case, decision was reserved on Respondent's renewed motion to dismiss the complaint ; that motion is now denied for reasons set forth hereafter . Motions of General Counsel and Respond- ent to conform the pleadings to the proofs with respect to minor variances were granted without objection.' All parties waived oral argument. Briefs have been filed with the Trial Examiner by General Counsel and Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Continental Oil Company , a Delaware corporation , is engaged in the produc- tion of oil and natural gas, the refining of gasoline therefrom , and the sale and distribution of gasoline and byproducts, throughout the United States. It main- tains and operates an oil field and gasoline plant at Ville Platte, Louisiana, (herein called the Ville Platte .field ) where it owns or operates 216 oil wells, of which approximately 142 are presently producing oil and gas which is processed and refined at _tlie gasoline plant -.in that field . Only the Ville Platte field is involved in this proceeding. During the past year Respondent has produced oil, natural gas, gasoline , and byproducts in that field valued in excess of $1,000,- ('100, of which approximately 50 percent in value is shipped from Louisiana to other States. It is clear that the Ville Platte field is an integral part of a multistate enterprise operated by Respondent , and that this field produces materials destined for out-of-State shipment which have a value in excess of $25,000 per year. The Board has previously taken jurisdiction over Respondent's operations at Ville Platte and elsewhere.' On these facts, I find that Respondent is engaged in commerce within the meaning of the Act.' II: THE LABOR ORGANIZATION INVOLVED Local Union No. 193, International Chemical Workers Union , A. F. L., is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. Preliminary Pursuant to an agreement made between Respondent and the Union on Feb- ruary 9, 1945 , a consent election by secret ballot was held among employees 3 After the hearing closed , Respondent moved upon notice to correct errors occurring in the record due to transcription . There being no objection from General Counsel, the motion is granted, and the record is hereby corrected accordingly . The motion papers have been filed with the transcript. ' See, e. g., 85 NLRB 827 ( Ville Platte , Louisiana ) ; 74 NLRB 597 and 80 NLRB 1256 ( Ponca City, Oklahoma ) ; 88 NLRB 1302 and 89 NLRB 416 (Billings , Montana). 6 The Borden Company, Southern Division, 91 NLRB 628; Stanislaus Implement and Hardware Company, Limited, 91 NLRB 618. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at Respondent's Ville Platte field on February 17, 1945, under the supervision, of the Board's Regional Director for the Fifteenth Region, at which a majority of said employees selected the Union as their bargaining representative. On February 22, 1945, the Regional Director issued a consent determination that the Union was the exclusive bargaining representative of all employees at the gasoline plant and field operation at Ville Platte, Louisiana, excluding super- intendents, foremen, farm bosses, chemists, petroleum engineers, material man,. gatemen, office and clerical employees, and all other supervisory employees who, have authority to hire, promote, discharge, discipline, or otherwise effect changes. in the status of employees or effectively recommend such action. Thereafter Respondent and. the Union executed collective bargaining agree- ments on June 22, 1945, and on the same date in 1946 and 1947, in each of which Respondent recognized the Union as the statutory representative of all per- manent full-time, hourly paid employees in the production department at Ville Platte, including, among others, six head roustabouts. The parties executed a similar contract on June 22, 1948, covering the same employees, but excluding head roustabouts. In negotiating that contract, Respondent took the position that head roustabouts were supervisory employees under the Act as amended and were not eligible for inclusion in the existing bargaining unit. In the execution of that agreement Respondent, by separate letter to the Union, recog- nized and reserved the right of the Union to contest the Company's position as to the supervisory status of head roustabouts in proper proceedings before the Board. The Union raised the question by a petition for certification of representatives tiled on May 18, 1949, in Case No. 15-RC-260, in which it claimed that the unit aforesaid included the six head roustabouts. On August 24, 1949, the Board issued its Decision and Order, dismissing the petition upon the finding that those - head roustabouts were supervisors under the Act and properly excluded from the appropriate unit (85 NLRB 827). On October 26, 1949, the record in the case was reopened upon motion of the Union to take additional testimony regarding the supervisory status of the head roustabounts. After a supplemental hearing, the Board on January 9, 1950, issued its Supplemental Decision and Order in which it found upon the entire record that the head roustabouts were not super- visors and were properly included in the existing unit represented by the Union but since the majority status of the Union in that unit was not questioned, the petition was dismissed.6 On September 15, 1950, Respondent filed with the Board an application for reconsideration of its supplemental decision, setting forth certain events alleged to have occurred since the date of that decision, and requesting the Board on the basis thereof to revert to its original finding. These events involved the conception, formulation, and issuance of a company plan of reorganization and decentralization of authority, and its application to head roustabouts. The Union filed a statement opposing the application for reconsideration, in which it alluded to the pendency of the unfair labor practice charges filed in this case. On October 3, 1950, the Board denied the application, but "without prejudice to the parties litigating the supervisory status of the head roustabouts in any future proceeding."' B. The refusal to bargain 1. The Union's majority status ; Respondent's refusal to bargain Respondent admits, and I find, that on or about June 21, 1950, and at all times: thereafter, the Union represented a majority of the permanent employees of 6 General Counsel's Exhibit No. 6. 1 General Counsel's Exhibit No. 9. CONTINENTAL OIL COMPANY 369 Respondent in its gasoline plant and field operation at Ville Platte , Louisiana, excluding chemists , petroleum engineers , gatemen, material man, farm bosses, all supervisors as defined in the Act , and all office and clerical employees, and that on and after the above date the Union requested that Respondent bargain collectively with respect to rates of pay, wages, hours of employment, and other conditions of employment with the Union as the exclusive representative of the head roustabouts at the Ville Platte operation , and that Respondent refused on and after said date to bargain with the Union as their representative. The sole issue raised by the pleadings and the record is: Whether the head roustabouts at Ville Platte have been since June 21, 1950, employees eligible for inclusion in the existing unit, or supervisors within the meaning of the Act. The parties concede that if they are and have been such employees , the admitted, refusal of Respondent to bargain with the Union as their representative , and its actions from July through November 1950 , in rewriting their job descriptions, and changing their rate of pay and method of payment , without consulting, ad-, vising, or bargaining with the Union thereon, is a violation of Section 8 (a) (5) of the Act ; on the other hand, if the head roustabouts have been and are supervisors, Respondent has not been obligated to bargain with the Union regarding their status and working conditions, and has not violated the Act. A secondary question is : Whether Respondent 's creation, issuance , and partial execution of its plan of reorganization and decentralization is new matter which the Board should, consider , and whether its application to the head roustabouts changed their status to that of supervisors on June 21 , 1950, or at any time thereafter. 2. The status of the head roustabouts The testimony of William Paul Gil and the stipulated corroborating testimony of the other five head roustabouts indicates that, since their testimony at the supplemental hearing of November 22, 1949, in the representation case, there has been no change in their method of operation or in their relations to the men working under them, and they are performing the same work , following the same routine , and have the same number of men under them, as prior to that date. Respondent adduced no contradictory proof directly showing any change in the work of the head roustabouts, but sought to rebut their testimony , and thus support its basic contention , by reliance only on ( 1) the Board's original decision and the record in the representation case, and ( 2) the efforts of Respondent in 1950, under its reorganization plan, to clarify and explain the duties , responsi- bilities , and authority of head roustabouts , and to train them in the performance of those duties. a. The Board's Decision and Order in the representation case In its original decision of August 24, 1949, the Board found that the head roustabouts were supervisors . By its supplemental decision of January 9, 1950, the Board vacated and set aside its previous decision to the extent that it now found on the whole record made at both hearings that the head roustabouts were not supervisors . The entire record in the representation case is part of the record herein by stipulation of the parties. Respondent has devoted most of its brief to a detailed analysis of that record, and argues therefrom that the Board erred in its supplemental decision , and that the Trial Examiner should review that record and make new findings thereon contrary to those of the Board. In effect, Respondent requests the Trial Examiner to exercise judicial review over 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and reverse the Board's final decision. Both on the law, on principle, and on precedent, I must reject Respondent's argument as without merit. Respondent fails to cite, and I have not found, any statutory or judicial authority which em- powers the Trial Examiner to review decisions of the Board, of which he is an, agent; on the contrary, Section 10 (e) and (f) of the Act vest the power of judicial review of Board decisions exclusively in the Federal circuit courts of appeals e Furthermore, the Board has long -followed the policy, with judicial approval, not to permit an employer to relitigate in a subsequent unfair labor practice proceeding involving charges of violation of Section 8 (a) (5) of the Act any issues presented and decided in a prior representation proceeding in- volving the same employer! It has been the established practice of the Board -to take judicial notice of its own prior proceedings and findings.10 The only exception to these salutary rules recognized by the Board, and approved by the courts, is that the Board will consider in a subsequent proceeding evidence which is newly discovered or which was otherwise unavailable to Respondent at the time of the prior hearing, and which' tends to show a change of circumstances requir- ing the alteration of a unit previously determined. However, as a matter of policy, the Board will not ordinarily disturb a prior unit determination or a con- tract unit established as a result of collective bargaining, in the absence of com- pelling circumstances 11 In conformance with the above rules, I take judicial notice of and adopt the final decision of the Board in the representation proceeding, on the basis of which I find that the six head roustabouts at Ville Platte were "employees" under Section 2 (3) of the Act, and not "supervisors" under Section 2 (11). thereof, up to and including November 22, 1949, the date of the supplemental hearing in the representation proceeding. - - This leads to a consideration of Respondent's second proposition : That, as a result of its application of the reorganization plan since November 22, 1949, to head roustabouts, those employees had become and were supervisors at the time of the hearings in this case, and that Respondent should not now be ordered to bargain with the Union with respect to them. Respondent adduced evidence on this subject over the objection of General Counsel, and subject to a general motion of General Counsel to strike all such testimony. The specific objections of the General Counsel were overruled by the Trial Examiner, and his motion to strike is now denied, for the reason that most of the facts and events discussed below occurred since November 22, 1949, and were not available to Respondent at the time of the last representation hearing. s While the ruling of the Board determining the appropriate unit is not subject to direct review under the Act, its ruling is subject to challenge when , as in this case, a complaint of violation of Section 8 (a) (5) is predicated in part upon the ruling, for when the Board seeks to enforce an order based on such complaint, the record in the representation proceeding is made part of the record in the unfair labor practice case, and any decree of the court must be based on the combined records. For such purposes, the representation proceedings and the unfair labor practice case 'become one. See Section 9 (d), 10 (e) and (f) of the Act; American Federation of Labor v. N. L. R. B., 308 U. S. 401, 408-411 ; Pittsburgh Plate Glass Company, v. N. L. R. B., 313 U: S. 146, 154, 158, affirming 113 F. 2d 698 (C. A. 8). . 9 Clark Shoe Company, 88 NLRB 989; 25 LRRM 1425, wherein the rationale of the rule, with supporting decisions, is set forth at length . See also Goodyear Rubber Sundries, Inc., 92 NLRB 1382. 1° See Continental Oil Company, 80 NLRB 1256, enforced 179 F. 2d 552 (C. A. 10) Shell Chemical Corporation, 81 NLRB 965 ; Tin Processing Corporation, 80 NLRB 1369 ; J. H. Rutter-Rex Manufacturing Company, Inc., 86 NLRB 470; F. W. Woolworth Company, 90 NLRB 289. 11 The Baltimore Transit Company, 92 NLRB 688 ; Geneva Forge, Inc., 90 NLRB No. 212 ; Service Pipe Line Company, 90 NLRB No. 225. CONTINENTAL OIL COMPANY 371. b. The reorganization plan and, its application to head roustabouts The plan was conceived by L. F. McCollum, president of Respondent, in 1948. Its purpose was to reorganize the various operating components of the Company into a more efficient arrangement, to define clearly the duties and responsibilities of supervisory personnel at all levels, and to decentralize and spread out the power and authority to carry out such duties and responsibilities by delegating authority downward in the supervisory hierarchy to supervisors in the field to an extent sufficient to enable them to make prompt operating decisions in the field without the delay formerly caused by the necessity of prior clearance with top management at the home office. The decentralization would remove the responsibility for most operating decisions from the highest company officers, leaving them free to evolve policies, programs, and procedures, at the same time giving regional and field supervisory officials varying degrees of authority to carry out such policies, and programs in actual field operations. The decen- tralization of authority involved the following steps: (1) The writing of a job description for each supervisory official which would spell out in detail his duties and responsibilities and state clearly his authority to carry them out; (2) the issuance and explanation of his job description to each official so that he knows the exact scope of his duties and responsibilities and the extent of his authority to carry them out; and (3) a course of training and education in those duties and their performance. These steps were essential because in the past supervisors at all levels either did not exercise all their authority because they were ignorant of its extent, or were reluctant to exercise the powers they pos- sessed because of the necessity of referring most matters to top management for prior approval. After approval of a job description by top management, it is officially published in a company-wide organization guide and goes into effect as an official statement of a supervisor's duties and authority, but it is not com- pletely effective to delineate the status of the supervisor until it has been issued and explained to him, and he has been trained to the extent necessary to enable him to carry out his duties. In 1948 and during most of 1949, the plan was in the formative and discussion stages among top management officials. As of November 23, 1949, only a tenta- tive draft of the new organization chart had been prepared, and job descriptions of 15 or 20 top officials of Respondent were in process of preparation. The plan was officially issued and went into effect to a limited extent on July 1, 1950. On that date job descriptions of numerous higher supervisory officials had been issued, but the training and education of supervisors had not been started.' Respondent did not begin to apply the plan to head roustabouts until the latter part of July 1950, when job descriptions for those employees were drafted by officials in the industrial relations department of the Company in consultation with various supervisory officials in the production department down to and including J. P. Malott, regional production manager for the southern region, who stands in the production chain of supervision three steps above the level of the northern Louisiana district in which the Ville Platte field is located." No 12 The above findings are based on the uncontradicted and credited testimony of John Post and Porter Al. Powell. While these facts were largely available to Respondent at the November 1949 hearing, and are not new matter in the strict legal sense, they furnish background and throw some light on the conduct of Respondent toward the head roustabouts in 1950 which will be discussed below. 13 Respondent's production department is divided into geographical regions. The south- ern region is subdivided into two production areas, with headquarters at Houston and Fort Worth, Texas ; the Houston area includes the Louisiana division which, in turn is divided into the East Texas, South Louisiana, and Northern Louisiana districts. 961974-52-vol. 95-25 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisory officials ' in that district, and none of the head roustabouts of Ville Platte, were consulted in the preparation of the job description. The first draft of the document was prepared July 28, 1950, and it was issued in final form without substantial change and placed in the company organization guide on September 8, 1950. About 2 weeks before, at a meeting of district supervisory personnel at Ville Platte on August 28 or 29, 1950, Malott exhibited the first draft to J. C. McWilliams, production superintendent of the northern Louisiana district, and also read and explained its contents to four of the head roust- abouts." They made little or no comment about the paper, as they did not ex- amine it: Malott did not know when it would become official, and therefore told them that, when it was issued, it would become part of the organization guide and would be available in McWilliam's office at Ville Platte, and that they would receive copies. This was the first time McWilliams had seen the document. The official job description of September 8 was not brought to the attention of the head roustabouts until November 28, 1950, 2 days before the hearing in this case started, when McWilliams read and explained its contents in detail to them at a supervisors' meeting in Ville Platte. The official document had been placed in the organization guide in his office only a short time before. At this meeting the contents of the job description were discussed with the head roust- abouts in much more detail than at the August meeting. At the same time McWilliams advised them they were now supervisors and had all the duties set forth in the job description, together with the authority to carry out those duties. McWilliams also told them that they were on a monthly pay basis, instead of an hourly rate, as of November 16, 1950, but that they would still re- ceive overtime pay for all hours worked in excess of 40, and double pay for Sunday work, which was necessary to comply with the wage-hour law" and regulations thereunder. At the same time their pay was increased from $301.60 (gross monthly pay computed on a rate of $1.885 per hour) to $355 a month- The head roustabouts first received copies of their official job descriptions on November 29, 1950. Respondent began to apply the training and educational phase of its decentral- ization program to the head roustabouts at Ville Platte in November 1950, when it required them to attend a 25-hour training course at that office between November 6 and 10, inclusive. This was the first presentation of the course to any em- ployees in the production department, and constituted only the first step in l a progressive training program which is still in operation. In addition, the head roustabouts had been present at several meetings of supervisors at Ville Platte on orders from their superiors, attending at least one meeting in July, the Malott meeting of August 28 or 29 described above, one in October, one on November 21, and the latest on November 28, at which their official duties were explained to them as stated above. However, the record does not disclose that, aside from the mere discussion of their duties at the August 28 and November 28 meetings, they received any formal training as supervisors at the other meetings. In this connection, it appears that Respondent set up a training division in its production department on October 1, 1950, in order to carry out the training of supervisors under the reorganization plan 16 14 Gerald S. Williamson, Jeffrey L. David, Clifton Leger, and William Paul Gil ; Arthur L. Zammit and Woodrow Vidrine were absent on vacation, but later discussed the events of that meeting with four roustabouts present. 15 Fair Labor Standards Act, 29 U. S. C. A. Sec. 201, etc. 1e The above findings are based on the credited and mutually corroborative testimony of Post, Powell, Malott, McWilliams, Gil, the stipulated testimony of the other five head roustabouts, and Respondent's Exhibits Nos. 9 and 10. CONTINENTAL OIL COMPANY 373 In arguing that the head roustabouts are now supervisors, Respondent relies principally on the following facts: (1) The issuance and explanation of the new job description to the head roustabouts, (2) the change in mode of payment of their compensation, and (3) their attendance at supervisory meetings. The General Counsel argues that these actions are not bona fide, but were merely superficial changes in the status of these employees prompted by the Board's prior decision and instituted to circumvent that decision by giving them the outward appearance of supervisors, and that such changes did not in fact alter their-actual working conditions .and method of operation on which the'^Board had based its decision. The change from an hourly paid to a monthly pay basis is not in itself a deter- mining factor which would warrant exclusion of the head .roustabouts from the existing unit;" at most it is only one item to be considered with other proof- In this case the evidential value of the change is diminished by other circum- stances. First, although these .employees are now paid on a monthly basis they still receive overtime pay and double pay for Sundays and holidays. Second, Respondent assigns no administrative reasons for the change, and it does not appear to have been contemplated by, or necessary for the consummation of, the reorganization plan. In addition, although the changes involved an increase in pay, it was not accompanied by any corresponding increase or change in the duties or work of the head roustabouts. Finally, the institution of the change after the filing and service of the charge herein and only 2 days before the hear- ings started impels the conclusion that Respondent was trying at the last moment to supply a factor which the Board found absent in its previous consideration of the status of these men18 I therefore conclude that the recent change in the mode of payment of their compensation is not persuasive evidence of a change in their status. Nor is the attendance of head roustabouts at supervisory meetings of any substantial significance. The general supervisory meeting of August 28 or 29, 1950, was called to acquaint all supervisors in the Northern Louisiana district with the changes caused by the reorganization plan, and Malott used it as the occasion for a preliminary explanation to the head roustabouts of the scope of their proposed new job description, which was not yet official. There was no supervisory training at this meeting or that of November 28, 1950. There is no proof that the head roustabouts received such training at other meetings of supervisors, or that as a result of such attendance their duties had 'changed or increased at the time of the hearing. The special training course of Novem- ber 6-10, 1950, was only the initial step in an extensive training program, and likewise did not result in any change in their duties or work. The fact that head roustabouts did not. attend regular supervisors' meetings had also been noted in the Board's prior decision, and it is clear that Respondent's recent require- ment that they attend such meetings was a patent attempt to correct that situation. The new job description on its face purports to invest head roustabouts with authority to perform at least four of the specific functions of supervisors out- 14 See Waterman Dock Company, Inc., 89 NLRB 452 and cases therein cited. 18 The original charge herein alleged that Respondent's refusal to bargain with the Union with respect to head roustabouts was in direct violation of the Board's decision of January 8, 1950; and in footnote 6 of that decision, the Board specifically noted that head roust- abouts were hourly paid, while supervisors generally were paid on a salary basis. The increase in pay appears to have had the same motivation, for in its decision the Board also noted that head roustabouts received the same wages as mechanics who were concededly, employees. 374 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD lined in Section 2 (11) of the Act.13 Under the terms of that section, possession of authority to carry out any one of the functions stated therein is sufficient to make an employee a supervisor.20 However, as a prerequisite to that status, the functions and the authority. to carry them out must be effectively delegated to the employee, so that he understands he in fact possesses both 21 Applying these rules to the facts at bar, it is clear, and I find, that the head roustabouts were not fully and officially advised of the duties and authority set forth in the new job description until November 28, 1950, and that they were not supervisors within the meaning of Section 2 (11) of the Act before that date22 The remaining ques- tion is, whether they have been supervisors since that date. The established facts of delegation of the functions and authorities stated in the job description, and the communication- thereof to the head roustabouts, would ordinarily require an affirmative answer to the question, even though the employees were in a probationary or training status and had not yet exercised the powers and authority delegated to him.23 But, where, as here, the steps taken by Respondent in an attempt to make the employees supervisors -have occurred after an adverse Board decision, particularly since the filing of the charge in this case, and the events most relied upon have occurred shortly before the hearing, close scrutiny must be given to all factors and events bearing on the present status of the employees in question ; and where the issue is a close one, 'considerable weight must be given to the extent to which the alleged powers have been used .2' The General Counsel rests his prima facie case on the final decision of the Board classifying the head roustabouts as employees, and their testimony herein that their functions and work are no different from that which existed at the time of the last representation hearing. Does the job description overcome these facts and require a different conclusion now? Although the job description purports to state supervisory powers and author- ity, it is clear from the testimony of Post, Powell, and Malott that it was issued 12 The job description, Respondent's Exhibit No. 10, lists 15 specific "responsibilities and objectives." The pertinent provisions are as follows : 1. To supervise and direct the work of roustabouts and maintenance men on con- struction, maintenance, or dismantling of equipment used in the drilling, operation, and maintenance of oil and gas wells, field gathering and treating systems, oil storage tank batteries, oil-gas separators, water systems, field housing facilities, and generating plants. 2. To direct the work of maintenance men, pumpers, or roustabouts in the operation of lease facilities and to inspect and direct the work of contract labor and equipment on instructions from his supervisor. 4. To recommend crew additions or replacements, promotions, transfers, disciplinary actions, and terminations. To relieve from duty, with recommendation for disciplinary action, any member of his crew for infraction of rules that require disciplinary action by established company policy. 7. To hear, discuss, and investigate grievances promptly and to settle promptly those grievances within his authority as set by his supervisor. To report promptly those grievances he cannot settle or that are not within his authority to settle. 2n See N. L. R. B. v. Edward G. Budd Manufacturing Company, 169 F. 2d 571, (C. A. 6), certiorari denied, 335 U. S. 908. 21 The Baltimore Transit Company. 92 NLRB 688; Thermoid Company, 90 NLRB 614. 22 This is practically conceded by Respondent, for the second contention in its brief reads as follows : "Irrespective of the correctness of the Board's supplemental decision and order of January 9, 1950, in case No. 15-RC-260, the head roustabouts involved are clearly supervisors at the present time and held supervisory positions at the time of the hearing herein on November 30-December 1, 1950," and Respondent argues strongly "Irrespective of their supervisory status at the date of either of the representation hearings or at the 11 dates charged in the complaint, they are clearly supervisors now. .. . 2a White Sewing Machine Company, 89 NLRB 1284 ; Phillips Chemical Company, 90 NLRB No. 76. 21 American Finishing Company, 86 NLRB 412. CONTINENTAL OIL COMPANY 375 solely to 'codify and clarify existing duties, responsibilities, and authority of - the head roustabouts. From discussions with these employees and past experi- ence in field operations, Respondent knew that head roustabouts were not acquainted with the full extent of the duties, responsibilities, and authority which Respondent felt they should possess, and therefore had not exercised all of them. The job description "spelled out"those duties and authorities so that the head roustabouts would no longer labor under any misapprehensions as to their powers. However, there is no substantial proof that the document en- larged their functions and authority in any respect, or that, after it was issued and explained to them, the head roustabouts carried out their duties in any differ- ent manner than previously. It is therefore clear that, notwithstanding the broad terms used in the job description,' the document caused no change in the existing duties, responsibilities, and authority of the head roustabouts, on the basis of which the Board had issued its final decision of January 9, 1950. The job description is therefore reduced to the status of a mere statement of existing -functions of head roustabouts as rank-and-file employees, and Respondent's use therein of terms which ordinarily denote one or more of the supervisory functions stated in the Act cannot change the true picture. ,Even if the job description were probative of new or enlarged powers, its belated issuance to the head roustabouts would render it suspect. Although promulgated September 8, 1950, it was not issued or explained to them until 21/2 months later, 2 or 3 days before the hearing. This delay is not explained by Respondent. Furthermore, the paper was officially given to the head roustabouts after their training program had started, contrary to Respondent' s normal pro- cedure under its decentralization plan which required the issuance and explana- tion of the job description as the second step, and training as the third and final step, in the effectuation of the plan. These circumstances impel the conclusion that the issuance of the job description, like the change in pay and mode of payment, was part of a hasty, last-minute maneuver to complete a picture of ostensible supervisory status among the head roustabouts for the hearing. Cf. The Baltimore Transit Company, 92 NLRB 688. After careful consideration of the entire record, I -am constrained to conclude that the facts and circumstances on which the Board based its previous determi- nation have not materially changed since the close of the representation hearings, and that Respondent has not adduced facts sufficient to rebut the prima facie case established by General Counsel or to warrant a deviation from the Board's previous decision. I therefore conclude and find that on and after June 21, 1950, and at the time of the hearings in this case, the head roustabouts at the Ville'Platte, Louisi- ana, plant and operation of Respondent had not attained the status of supervisors within the meaning of Section 2 (11) of the Act, and were employees eligible for inclusion in the existing bargaining unit. I further find, in accordance with the Board's previous determination, that on and after June 21, 1950, all permanent employees of Respondent at its gasoline plant and field operation at Ville Platte, Louisiana, including head roustabouts but excluding chemists, petroleum engi- neers, material man, gatemen, farm bosses, all supervisors as defined in the Act, and office and clerical employees, have constituted, and now constitute, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. I further conclude and find that Respondent's ad- mitted refusal to bargain with the Union as to the head roustabouts in this unit on June 21, 1950, and thereafter, its unilateral issuance of a job description for these employees purporting to affect their working conditions, and its uni- lateral change in their rate of -pay and method of payment as of November 16, 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1950, constitute violations of Sections 8 (a) (5) and also 8 (a).'(1) of the Act 26 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in Section III, above, occurring in con- nection with the operations of Respondent described 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 Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take. certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has refused to bargain collectively with the Union as the exclusive representative of all the employees of Respondent in the appropriate unit described above, I will recommend that Respondent bargain collectively with the Union, upon request, as the exclusive representative of all the employees in said unit, and, if an understanding be reached, embody such, understanding in a signed agreement. The record contains no evidence that Respondent has indulged in other unfair labor practices. It appears that Respondent's refusal to bargain with the Union was based solely on its desire to litigate the issue of the validity of the Board's .determination as to the status of certain employees, rather than upon any funda- mental opposition to the objectives of the Act. I shall therefore recommend merely that Respondent cease and desist from refusing to bargain collectively with the Union as the exclusive representative of all the employees in the unit, and from in any manner interfering with the efforts of the Union to bargain col- lectively on their behalf. On the basis of the foregoing findings of fact, and on the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. Local Union No. 193, International Chemical Workers Union, A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. All permanent employees at Respondent's gasoline plant and field operation at Ville Platte, Louisiana, including head roustabouts but excluding chemists, petroleum engineers, material man, gateman, farm bosses, all supervisors as defined in the Act, and office and clerical employees, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Local Union No. 193, International Chemical Workers Union, A. F. L., was on June 21, 1950, and at all times since has been, the exclusive representative of all the employees in the aforesaid unit for purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By its refusal on June 21, 1950, and at all times thereafter, to bargain collectively with the Union as the exclusive representative of all its employees 26 These findings and conclusions make unnecessary any consideration of General Counsel's alternate argument based upon an alleged unilateral change in working conditions of em- ployees in the unit through promotion of the head roustabouts to supervisory status and their removal from the bargaining unit. DEL E. WEBB CONSTRUCTION COMPANY 377 in. the aforesaid unit, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By such conduct, including its unilateral acts found above, Respondent has Interfered with , restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act, and has thereby 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 commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] DEL E. WEBB CONSTRUCTION COMPANY and WILLIAM H. PICK ARD INTERNATIONAL UNION OF OPERATING ENGINEERS , HOISTING AND PORT- ABLE LOCAL No. 101 OF GREATER KANSAS CITY AND VICINITY, A. F. of L. and WILLIAM H. PICKARD. Cases Nos. 17-CA-251 and 17-CB- 20. July 23, 1951 Decision and Order On April 17, 1951, Trial Examiner Max M. Goldman issued his Intermediate Report in this consolidated proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent Company and the Respondent Unions filed exceptions to the Intermediate Report and supporting briefs. The Board 1 has reviewed the rulings made at the hearing by the Trial Examiner 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, and hereby adopts the findings,3 conclusions, and recommenda- tions of the Trial Examiner, with the exceptions, modifications, and additions noted below. 'Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers in connection with this case to a three-member panel [ Members Houston, Reynolds, and Styles]. 2 We find no merit in the Respondents ' exceptions to the denial by the Trial Examiner of the Respondent Company's motion to vacate the hearing on the ground that it was entitled, under Federal Rule 26 ( a), to take a deposition of the charging party. The provision in Section 10 ( b) of the Act merely provides that any complaint "proceeding shall , so far as practicable , be conducted in accordance with the" Federal Rules of Civil Procedure, and clearly relates to the introduction of evidence before the Board, and not to pretrial privileges accorded parties to judicial proceedings . See Representative Hartley's state- ments in 93 Daily Cong. Rec . 3588 ( April 16, 1947 ) ; Senator Taft's statements, Id. at 6676 (June 6, 1947 ) and 7002 (June 12, 1947). 8 For the reasons stated in Del E. Webb Construction Company, 95 NLRB 75, we reject the Respondent Union's contention that the Respondent Company is not engaged in commerce within the meaning of the Act. 95 NLRB No. 57.