Tesoro Petroleum Corp.

354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tesoro Petroleum Corporation and International Union of Operating Engineers, Local No. 330, AFL-CIO. Case 27-CA-2887 July 29, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS Engineers, Local No. 330, AFL-CIO, herein called the Union, with respect to certain actions of Respondent which changed "operators" to "shift foremen." The answer, as amended, admits some and denies other factual allegations of the complaint but denies any violation of the Act. The complaint was based on a charge filed by the Union on February 9, 1970. All parties appeared at the hearing, were given full opportunity to participate, to argue orally, and to file briefs. Briefs which have been carefully considered were filed on behalf of the General Counsel, Respondent, and Union. On March 26, 1971, Trial Examiner Richard D. Taplitz issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices alleged in the complaint, as set forth in the attached Trial Examin- er's Decision. Thereafter, the General Counsel and the Charging Party filed timely exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Trial Examiner: This case was tried at Newcastle, Wyoming, on December 15 and 16, 1970. The complaint, dated August 27, 1970, as amended on September 24 and December 15, 1970, alleged that Tesoro Petroleum Corporation , herein called Respondent, violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by failing to meet its duty to bargain with the International Union of Operating I The full description of the unit was: "All operating , processing, maintenance, chemistry and instrument employees at the Newcastle, Wyoming refinery operated by (the employer), including truckdrivers whose principal duties are on the premises of the Newcastle refinery in connection with refining, maintenance and regular construction work, exclusive of sales employees, clerical employees, administrative employees, 192 NLRB No. 56 IssuEs Whether Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally assigning supervisory duties to bargaining unit employees known as operators, thereby removing those operators and the work they performed from the bargaining unit. Upon the entire record of the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation, explores for and refines petroleum. It operates a refinery at Newcastle, Wyoming, herein called the refinery. Respondent annually sells products valued in excess $50,000 which are shipped from the refinery directly to locations outside the State of Wyoming, and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting On May 13, 1953, the National Labor Relations Board, after an election conducted under the supervision of the Regional Director for Region 27, certified the Union as the exclusive collective-bargaining representative of the em- ployees at the refinery in a unit consisting of operating, processing, and maintenance employees .' At that time the refinery was owned by Sioux Oil Company. From then until the present, successive contracts covering said employees have been in effect or negotiations for such contracts have been in progress. Through a series of mergers and names changes, Respondent became the owner of the refinery.2 At the time Respondent assumed the operation of the refinery, a contract was outstanding with the Union which was effective through December 31, technical employees, temporary construction workers, truckdrivers engaged in over-the-road driving and city delivery and all supervisors as defined in the Act." 2 About January 26, 1968, Sioux Oil Company merged with Tesoro Petroleum Corporation , a Delaware corporation, and Intex Oil Company, a California corporation. The corporation surviving the merger was Intex Oil TESORO PETROLEUM CORP. 1969. Respondent gave effect to that contract, assumed its obligations, and continued to recognize the Union as the collective-bargaining agent for the employees in the unit. Respondent engaged in substantially the same business operations formerly engaged in by Sioux at the refinery with substantially the same employees and supervisors as had been employed by Sioux. Prior to the expiration of the contract on December 31,1969, Respondent and the Union began negotiations toward a new contract. These negotia- tions led to a 3-year collective-bargaining agreement, which became effective January 1, 1970. It was executed by the Union on May 12 and Respondent on June 4, 1970. Respondent's normal crew at the refinery is approximate- ly 41 persons. About 21 of these people are engaged in the actual operation ' of the refinery while the other 20 are engaged in the maintenance of equipment. Prior to February 6, 1970 (the date that employees classified as operators were made, shift foremen), the operations personnel were divided into, the following classifications: operators, stilimen number 1, number 2, and number 3, helper-pumpers, loaders, and shift breakers who could interchange with any of the other categories. The maintenance crew contains such classifications as welders, instrument electricians, pump repairmen, testers, ware- housemen, and maintenancemen. None of the maintenance crew positions are involved in this proceeding, as the sole violation of the Act alleged relates to Respondent's action in making the operators (there were four in number) supervisors. The refinery is on a continuous - 24-hour schedule. The operation crews rotate on a three-shift schedule and cover the refinery at all times. The maintenance crew on the other hand only works on the daylight shift Prior to February 6, no supervisors were on duty, at the refinery from 5 p.m. until 7 a.m. During such times, the refinery was normally manned by an operator, a stillman number 1, a stillman number 2, and a helper. The operator would spend most, of his time watching the control board in the operations room which contained the temperature gauges and other instrumentation needed to determine whether, the refinery was operating properly. In addition, some of the operator's time would be, spent in physically inspecting the refinery to check on pumps and other equipment. When he was away from the board, his position would be filled by stillman number 1. When the operator was on - the board, he could make certain corrections indicated by the instruments through controls on the board itself. However, certain corrections could only be made away from the board in various parts of the refinery. The operator would send the sillmen number, 1, number 2, and the helper-throughtout the refinery to do the work that, was required. Though the operators did to some degree -direct the work force, neither, Respondent nor the Union considered, them to be supervisors and the category Company whose name was changed to Tesoro Petroleum Corporation, a California corporation. About March 3, 1969, Tesoro Petroleum Corporation, a California corporation, merged with and into TSO Corp., a Delaware corporation, the name of which corporation , was changed to Tesoro Petroleum Corporation,' a Delaware corporation, the Respondent herein. 3 Respondent's negotiating team consisted of Labor Counsel Hugh M. Smith, Plant Manager `Francis Wilson, and Manager of Refining John Tagharmo The Union's negotiating committee consisted of'Negotiating Committee Chairman Dennis Fuller, Drew Jackson, Bill Cattles, Albert 355 of operator was included in the collective-bargaining agreement. B. The Creation of the Shift Foreman Classification After Tesoro assumed operation of the refinery, the plant manager, Francis Wilson, and the manager of the refining, John Tagliarino, discussed various ideas- for, making the operation more efficient. They considered-the-possibility -of creating shift supervisors who would be responsible for directing the work of, ,the other employees on the shift. During 'two- out of the three shifts, there were no supervisory personnel on duty at the refinery. They agreed that the logical persons to select-for such shift supervisors (sometimes called shift foremen) were the operators because of their qualifications and experience. The=matter was then discussed with officials of Respondent from its Texas headquarters and withHugh M. Smith, Respondent's labor counsel. It was decided that before such a change could be made, it would have 'to be-negotiated with the Union. It was further decided that as the contract did not expire until December 31, 1969, Respondent would wait until the contract was open for negotiations 'and at that time a proposal would be made to the Union to see if some type of reorganization could be worked out. It was also decided, that no proposals would be made to the Union unless the operators themselves-, felt that the idea could work. By letter dated October 1, 1969, Tesoro notified the Union of its intention to modify, or terminate the contracts, requested early negotiations, and suggested that the Union submit proposed changes in advance of the meeting so that Respondent could prepare and' present counterproposals. After further written correspondence, a negotiating-session was held at the refinery on October 30, 1969.3 The Union submitted some initial requests which were reviewed by Respondent. There „was some general, talk about the need for supervision, but. nothing .was said about the proposed change of status for the operators. A second ' meeting was scheduled and held,at the refinery at 10 aim. on December 9,- 1909.4 In the interval between the two meetings, on November 12, 1969, Respondent had submitted to the Union,certain counterproposals. In these counterproposals the classification of operator was- listed witha wage rate. The. meeting of December 9, 1969, recessed at noon to meet again at 2 p.m., with no mention having been made of the operator issue. During the recess, company representatives called together, the employees who were classified as operators and for the first time discussed with them the possibility-of their becoming supervisors .5 None of the members of. the Union's negotiating committee were present at this meeting though Russell Davis, president of the Union, was there as Gronery, and Fred Carr. '4 Attended by the same persons except that Dale Moody, International representative for the International- Union of Operating Engineers, also appeared on behalf of the Union. 5 Smith,' Wilson, Tagliarino, and Plant Superintendent Jacob Roll were present for Respondent. The operators were Russell Davis, George Curtis, Duane Lamb, Lloyd Schneider (who was filling in as an operator for W. A. Tanner, who was on, sick leave of absence), and W. A. Tanner (who, though on sick leave of absence, was attending this meeting). 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one of,the operators. One of Respondent's representatives told the operators that management was considering, the- possibility of making the position of operator into a supervisory., position,-because, they^,thought that would improve efficiency. He said that, if the plan were carried out, the•,.operators would be removed, from the bargaining unit -and put on a monthly salary, and, that it would be a promotion to, management level with an increase,,in' wages and, many benefits., He asked the operators for their reaction and what they thought about the idea.` Some of the operators said that the problem was that they had a-lot of responsibility but that the Company wouldn't back them up. Tagliarino- replied that they would have the same duties but that they would have more responsibilities, they would 'have supervisory status with the right to hire and fire, and the Company would back,them up. Tagliarino was asked what the salary would be and he replied that he.could not discuss money at this time, that the - whole matter had, to be negotiated with the Union. All of the' operators, except Russell Davis,, agreed that around-the-clock supervision would, improve efficiency.=They , added that it would only improve the situation if Respondent was, able to back' up their decisions. ' I After the meeting with the operators, Respondent's negotiators went back 'to the bargaining session with the Union. Smith,_ on, behalf of Respondent, told' the' union representatives that the wCompany had talked to the operators about the possibility of making them supervisors. He added that she wasn't bargaining' individually With the operators, but was-just feeling them out to see-what they' thought of moving into that sort of position. Smith 'then proposed to,,,the ' Union,• that , the operators 'be 'rriade- supervisors.' The union officials asked„ whether the opera tors would leave the bargaining unit,` and -Smith ' replied that, if tbe,change were made, they would be out'of the unit. The union representatives asked who would fill- the operator positions and-the company representatives replied that there would ,be no .such positions remaining. The Union then asked what would happen if none of' the four operator' accepted 'the position., Smith"replied that-four people-would be brought in to fill the position from the outside and the employeeswho'weie then operators would have to bump back to such positions as stillmatt number' 1 and, take- cut. The company representatives explained that the--change would provide' greater efficiency' and the union representatives objected on the ground that it would reduce their unit. The Company asked the Union to consider the proposal 'and to come up-with some alternatives if they had any valid objections. The Union asked for ' time to think about it and the, discussion went on to other "matters. On December 26,.1969, Smith, wrote 'to Fuller and gave him a redrafting -of proposed articles."None of the job- classifica- tions were specified in'that document. ' ' ' The negotiator's met again on January 13 and continued the discussion with respect to the operators. Moody, for the Union, proposed an alternate, plan, under which, ,the operators would remain in the bargaining unit and the Union but still have supervisory„ duties. Respondent 6The,same parties were present except for,Drew Jackson, who did not attend the meetings,on January 13 or 14, 1970.' 7 Smith, Wilson, 'Tagharmo, ` and Roll were present for Respondent; the answered that a man could not wear two hats, his allegiance should be. with either management or 'the Union and- that the operators couldn't live in both places and do a good job. Moody offered Smith the names of companies where such a procedure- had been in operation but Smith' showed no interest. There was some discussion of the legality of the supervisors remaining in the bargaining unit and Smith suggested that union counsel submit something to Respon- dent on that question. Smith never received a legal memo from union counsel. Moody then offered to sign a letter of intent under which Respondent for a 6-month trial period would keep the operators'" in the bargaining unit even though they would be'supervisors. Respondent expressed a lack of interest but said that it would take the proposals to higher mangement before answering. The parties met again on January 14. The Respondent told-the Union that the head-office had rejected the Union's counterproposals. -Moody asked what Respondent 'pro- posed to do with the operators and was informed 'that Respondent planned to go forward with their proposal' on February 1, 1970. The Union strenuously objected on'the ground that-the four operators"were the'key people who knew all the jobs in the' plant and that their removal from the bargaining unit would seriously hurt'the 'Union during any strike. Smith denied any intention, to weaken `the Union' A union negotiator asked if the Company 'would hire 'someone off" the street to fill' the positions if the operators didn't accept them and Smith replied that they woul'd` ' hire someone to take those positions. Smith explained in detail the reasons that he thought the promotion to the operators to supervisors would increase the plant's efficiency. The Union once,again asked that`the operators be, permitted to remain in the unit.,,The Company rejected the request but stated that, if the operators refused the position; 'they would be permitted to' bump down to stillman'nuinber 1, even if it meant thatsome employees on the-bottom of the bumping ladder had to be laid off. Fuller for the Union said that they should have another meeting before the plan went into effect on February 1 and Smith replied that the schedule before 'then was full. The Union was' insistent on 'another meeting, however, and Smith agreed" to meet once- again 'on January' 26, 1970. The meeting'closed about 4 p.m, ' 'At 5 ° p.m. the same day, Respondent called the operators together once agam.7 The operators 'were told what had been', said' to the Union' and were offered the job of supervisors. They -were told they would have full authority to control their shifts. Tagliarino said that the Company had "firmed up its ideas concerning going ahead-with, the supervisory, positions and that he wanted to find oi4 which' operators would be interested: Some of the operators asked Tagliarino about the authority` they, would have and he replied that they would have authority 'to fire anybody under them who they,felt was not doing the job and the management,would back up the operators 100percent'and honor their decisions. Tagliarino. then' asked for- their opinions, Russell Davis, who was president of the Union, said that he couldn't see what management would gain operators were Russell, Davis„ George Curtis, Duane Lamb, and Lloyd Schneider. Tanner, was not present as it was understood that he intended to retire and that Schneider would fill hisposition. TESORO PETROLEUM CORP. except to break the back of the Union by removing four operators from the unit while they were doing the same work they had in the past. Tagliarino replied that he didn't think the Union would be hurt and described the increased efficiency. Davis went on to say that the Company was passing the buck and would find fault with the four operators for everything that went wrong and that he wasn't interested in the job. Tagliarino said that, if he wasn't interested, it would be best that he left the meeting and he did leave. The other operators said that if related matters were satisfactory, they would be interested in the position. Respondent then offered the operators $800 a month.8 The operators asked for time to think it over. Curtis said that there was a union meeting .that evening and asked,whether Respondent would object if he discussed it with Union. Respondent's representatives stated that it was his decision and the Company had no objection. On January 16, 1970, Wilson met again with the operators. The operators were.Lamb, Shneider, Curtis, and a shift breaker named Dean Wright, who -was offered the supervisory position for the first time at this meeting. There was a further discussion about management backing up the supervisors and improvements in the line of communica- tions. The four operators then stated that they were not satisfied with the $800 a month offer and they thought that $825 a month should be considered. Each indicated that he would take the position, for that, salary. Wilson told them that he would have to take it,up•with higher management. Wilson discussed the matter with Tagliarino and it was decided to- go along with $825 per month demand. On January 20, 1970, Wilson-told each of the operators 9 of the decision and each of them accepted the supervisory position. On January 19, 1970,- Smith wrote to the Union enclosing an mtergrated copy of Respondent's proposals. There was no classification in the wage scale for operators. A few days later, Curtis called Wilson and told him that he had decided against taking the position because there were hard feelings, among the union. personnel. Wilson said that he thought Curtis would make a good supervisor and asked him to reconsider.- Sometime later, Roll went to Curtis' house and asked him to reconsider. On January 26, before the scheduled meeting with the Union, Wilson asked Curtis to talk it over with him and Curtis asked whether he could have Moody, the, International representative for ' the Union, present with him. The meeting was held on the 26th, at which time Moody' told Curtis that the Union didn't object to his taking the position.- Curtis then accepted the job. ' On January 23,1970, Wilson and Roll had a conversation with Stillman Number 1 Dennis Patton. Wilson told him that one of , the operators wasn't interested in the supervisory position and asked whether he was. Wilson told him that there would be a big increase in pay, that-lie would have the same duties that the operators had, that he would be on the board and would step outside to check things, and 8 At that time, Davis, according to his testimony, was making something less than $800 a month and Schneider, according 'to his testimony, was making approximately $650 a ' month. The contract which expired' on December 31, 1969, provided for straight time pay of. $3.66 for the 4 to' 12 shift; $3.74 for the 12 to 8 shift; and $3.82 for the 8 to 4 shift with greater amounts for overtime. 9 Lamb, Schneider, Curtis, and Wright. 357 that he would be in ,charge of the other men,on the shift. Dennis said that he wouldn't be a scab ,and he would not commit himself at that time. Either Wilson or Roll told Dennis that the Company definitely would like to have operators take jobs as shift supervisors if at°-all possible, that they needed more supervisors, and that '.the Company would have shift, supervisors, whether they- carne, from within or without the plant.lo Negotiators for Respondent and the Union met again on January 26, 1970. Moody asked Smith if he had been in touch with the, plants he had named thathad supervisors in the bargaining unit and, Smith replied that he had not. The Union took the position, that it would be willing to sign a letter of intent to allow 'fora 6-month trial but Respondent would not go along. After quite a,bit of discussion, the Respondent's, representatives. said that the plan would go into, effect on February 1. The union representatives then said that they would go to the Labor Board. Smith replied that the Company was firm-on the matter and that going to the Labor Board would probably be the only way that it would ever be settled. On January 27, 1970,'the parties met again. There was no discussion concerf}ing,.the creation of the shift foreman position except that Respondent notified the Union that the date for the change was extended from February .1 to February 6 because the latter date was the end of, the pay period. On February 6, 1970, the change did go into effect. During the following week, the plant was closed because of a power failure and it did not-reopen until'February 23: On February 27, the new shift foremen-had',their salary raised to $870 a month because of changes in standards set by the Department of Labor under the-Fair Labor Standards Act. Though the change was made on February6;'the parties continued to correspond and to hold negotiating sessions after that time. Though the negotiations dealt primarily with, matters unrelated to the shift foremen, that issued did arise on several occasions. Thus on March 13,,1970, P. H. McCarthy, Jr., one of the Union's-attorneys, wrote to Smith proposing a contract clause under, which both management and employee responsibilities could be assigned to the same person and specifically stating that operators 'could be given additional managerial duties. Byl'etter dated'April 1, 1970, Smith rejected the proposal. At one of the negotiating sessions, the Union proposedcompulsory arbitration of the operator issue and the Company refused. The subject of checkoff was discussed at some of the negotiating sessions and on April 24, 1970, Smith wrote the Union saying that the Company would, agree to checkoff lithe Union "agrees to our proposals as they otherwise presently'exist" and if the contract was concluded on or before. May 1. Though ' a final contract was not executed by, the Union until May 12 (and by the Respondent-on` June 4, 1976), it did when signed contain a checkoff clause.' In the latter part of April 1970, the Union requested that -a change be made in the seniority clause so that 'instead' of the shift foremen 10 This finding is based on the credited testimony of Roll. Patton's testimony in substance corroborated Roll's except that,, according to Patton, Wilson said that they would have supervisors no matter what the Union ' decided or said.' Whether or not the` union 'was specifically mentioned, it was iinplicit. from '-Roll's testimony that the Union could not influence Respondent in its decision to have shift supervisors. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD retaining seniority in the bargaining unit for 6'months, they retained such seniority for only -120 days. On April 30, 1970, Smith .wrote to the Union accepting that proposition and the contract which was-'ultimately signed stated if an employee accepts a, supervisory position and' stays in it for more than 120 days, he shall lose his seniority with respect to the bargaining unit." The contract as signed did not' contain a wage classification for operators. C. The Shift Foremen's Duties The, shift foremen perform all of the duties previously performed _by'the operators.,-Though the shift foremen spent- a larger percentage of their , ,time away from the control board inspecting the plant, the amount of inspection that was necessary was left up to&their discretion. Along with the work thatthese men had always performed, they were assigned additional responsibilites. The shift foremen and;the employees were notified in writing of the new supervisory responsibilities of the shift foremen. About February. 6, 1970, the shift-foremen were givena document which read as follows: RESPONSIBILITIES -OF SHIFT FOREMEN I., To employees: A. Consult with, assist in training of new employees and to train regular employee for, upgrading of job positions. B. -Consult with employees as to job performance evaluation=-deficiencies, merits, attitudes, etc. C. Make .yourself or higher authority available for consideration of suggestions as to job safety, efficiency, changes of procedure; and to evaluate such suggestions for higher authority.- D. , Adjust grievances of,employees at initial stage. 2. To employer: A. To evaluate job performance of, subordinates and to consult with higherauthority as to same. B. Recommend necessity for additional employees or advisability in reduction of work,force.. C. Proper utilization of the work force for maxi- mum,efficiency. D. Training of all, -employees for multiple job capability. E. Maintain good morale among work force; and effective use of discipline and, disciplinary procedures. 3. Authority: `A 'Effective decisions as ,, to final employment of ,applicants for employment. B. _ Adjustment of grievanceslof employees or within 'limitation,of effective labor agreement. -C. To_ reward For discipline other employees, including issuance of,letters,of merit or reprimand. D. Assign employees within their job, capability to various duties of shift requirement. E. Effective recommendations with respect to hiring, transfers (from classification), suspensions, lay- off, recalls, promotions,discharge. Comment: Your Company' recognizes the, absolute necessity for ,front, line supervision. It recognizes that pressures upon 11 Fuller, Patton, Davis and Downing. you will be from both above and below. It is a difficult position and one requiring the quick and effective use of independent judgment. It requires discretion, tact, leadership and caution in dealing- with subordinate employees. We expect that' mistakes' will be made. We` all mike them. But because your decisions will be accepted and given validity it is incumbent upon -you to seek advice, both from above and below. It is the belief of this Company that a contented employee is a better' employee. Not necessarily with respect to wages (for none of us are satisfied there, nor should we be) but with respect to the employer employee relationship . You are the effective arm of management to this end . In your position, you are an, agent of management, and'your actions will be binding upon management. You have been chosen for this position ,because you merit our faith in `you and your ability to accomplish these objectives.' We will-assist you in learning new and` additional supervisory techniques, but remember that your demonstrated qualities of leadership and common sense are and will be' the main resource , in effective supervision. About the same time, Respondent posted a notice to employees. That notice ' began ' "The following are the responsibilities _of the newly created position of the' Shift Foremen. All employees shall be directly responsible to Shift Foremen for the proper performance of all-duties and assignments." The notice continued by listing the items set forth in 1 , 2, and 3 of the notice,that^Respondent had given to the shift foremen. A number of witnesses" testified that they saw little or no difference between the-work performed by the operators and the shift foremen. In addition, some of the shift foremen testified that they had not had occasion to exercise many of their new duties. However, Duane Lamb, who was an operator before February 6 and a shift foreman thereafter, credibly- testified that before February 6 ,he had no authority to,work overtime or allow others to work overtime while after ' that date he did -have such authority and he has exercised it by calling men in to help when an employee was sick, authorizing employees to work overtime, and choosing which employees were to do overtime work. Schneider, who occupies a similar position, also credibly testified that he now can have employees work overtime , while before February 6 he could not unless he cleared it with higher authority. D. Analysis and Conclusions 1. The supervisory status of the shift foremen Paragraph VIII(a) of the complaint alleges that Respon- dent violated Section 8(aX5) and (1) of the Act by unilaterally changing existing wage rates -of employees who occupied the position of operator . The wage - rates of the persons classified as operators were not changed until those persons were out of the ' bargaining , unit because of their promotion to the classification of shift foremen . Though the General Counsel 'asserts that the shift foremen' were TESORO PETROLEUM CORP. supervisors, the Charging Party contends that the operators in effect received a paper promotion and never became supervisors . If, as contended by the Charging Party, the shift foremen are employees within the bargaining unit rather than supervisors, the change in wage rates (over which Respondent admittedly did not bargain ' with the Union)'would be aviolation of the Act. Section 2(11) of the Act provides that "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 " The Board and the courts have noted that the indicia of supervisory status contained in the statute are set forth disjunctively. N.L.R.B. v. Budd Mfg. Co., 169 F.2d 571 (C.A. 6), and if a person meets any of those indicia, he must be considered a supervisor. About the time they were appointed, the shift foremen were given a written memo concerning their duties. This, memorandum told. them that they had authority to make effective recommendations with- respect to hiring, transfers (from, classification), suspensions, lay off, recall, promotion, and discharge. In addition, it was clear, from the totality of the memo that they were given full responsibility and authority to use their independent judgment in-directing the employees- under them. About the same time, all,of the employees were notified in writing as to the new responsiblities and authorities of the shift foremen. Even prior to the written notice, when the position of shift foremen was being discussed, Respondent told the people who might fill those positions that they would-have authority and wouldbe backed up by the Company in their exercise of it. Indeed, at the meeting with the operators on January 14, 1970, after Tagliarino told the operators that they would have authority to fire anyone under them who they felt was not doing the job, Operator Davis said that he wasn't interested in the position because the Company was passing the buck and would find fault with the four operators for everything, that went wrong. It was clear to Davis at that time -that Respondent did intend to hold the shift foremen responsible for everything that went wrong during their shifts. It was also clear that the shift-foremen would have authority that was concomitant with their new responsibilities. Though it is true that,the shift foremen spent the great bulk of their time doing the same duties they had performed as operators and that they have-not had occasion to, exercise, a great many- of the new authorities that they were given, they do use independent discretion in the responsible direction of the employees under them,12 and in addition, as indicated in the memos given to them and posted for the employees, the shift foremen have many of the other indicia of supervisory status set forth in the statute. I find that they, aare supervisors. It, follows that Respondent did not unlawfully change existing wage rates of employees; as at the time the changes were made, the 12 Among other things, shift foremen, such as Lamb, call men in to help when an employee is sick, authorize employees to work overtime, and 359 persons receiving the increased pay were supervisors and not employees within the meaning of the Act. 2. The duty to bargain about the change Paragraph VIII(b) of,thescomplaint alleges that Respon- dent 'violated Section . 8(a)(5) and (1) of the Act by unilaterally assigning duties to its operators that made them supervisors. General Counsel, in his brief concedes that Respondent was free to establish new supervisory positions and to recruit for such positions among unit employees, but urges a finding that Respondent violated the Act by removing a significant portion of the jobs in the bargaining unit by this addition of supervisory duties. Paragraph VIII(c) of the complaint alleges that Respondent. violated Section 8(a)(5) and (1) of the Actby unilaterally altering the composition of, the bargaining unit by removal of the classification of ,operators., An' employer does not have a statutory -duty to bargain with a union concerning his nondiscriminatory choice of supervisory personnel. KONO-TV ;Mission Telecasting Corporation, 163 NLRB 1005. However,- where a company undertakes a change in operation which involves, a promotion of bargaining unit employees to supervisors and consequent abolition of bargaining unit jobs, such a change is a mandatory subject of ; bargaining. Laclede Gas Company, 171 NLRB No. 180. In such circumstances where employees are reclassified to supervisors and continue to,,d9 bargaining unit work, the Board has not viewed the employer's, actions as a change in the, bargaining unit that could be made only by a Board order or consent of all parties, but has looked at it as a-matter that is subject to normal bargaining process. In determining whether bar- gaining - was required, the Board has evaluated such questions as whether the removal of the unit work has a significant impact on ),he ' bargaining - unit. Winchester Corporation, a subsidiary,. of Zenith Radio Corporation, 172 NLRB No. 17. Cf. Brotherhood of Locomotive.F. iremen and Engnemen, 168 NLRB 677, enfd. 419 F.2d 3'14, (C.A.D.C.). In the instant case, 4 jobs were removed for a bargaining unit of 41 employees. Whether "Js viewed as a change in or a removal of work from the bargaining unit, it constituted a significant impairment of the jobs in the unit and therefore was - a mandatory subject of bargaining. Fibreboard Paper Products' Corp, v. N.L.R.B., 379 U.S, 203; Westinghouse Electric Corp., 150 NLRB 1547. Even where an employer's plan provides for, the promotion of all the employees ins. bargaining unit so as to eliminate an entire bargaining unit, the plan is subject to bargaining. In American Bus Lines, fnc., 164 NLRB 1055,, the Board dismissed a complaint in such circumstances-where it found that the union didn't enforce its bargaining rights- diligently, by attempting to persuade the company to.alter its decision. Respondent's change in the composition of,the bargain- ing unit did remove bargaining work from the unit in such a way, as to have substantial impact onthe employees in that unit. Respondent therefore had the duty to bargain about such .a, change. The, case turns on the question of whether Respondent did or did not meet that duty to bargain. To choose which employees are to work overtime. 360 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD briefly recapitulate the facts; which are set forth in detail above: Prior to commencement of negotiations, Respon- dent decided that additional supervision would be desira- ble, that the operators 'would be consulted to determine their opinion as 'to' the feasibility of the plan, and"that, if feasible, the matter would be negotiated with the Union when =the contract was open for-negotiations. Though the matter was not raised at the initial negotiating session of October 30, Respondent did makeits`proposal to'the Union on December 9'after discussing it with the operators on the same =date. At that time, Respondent fully explained-the ramifications of its proposal to the -Union and when the Union, objected, Respondent asked for counterproposals. On January, 13, the matter was further discussed and the Union proposed that the operators remain in the unit even after they had supervisory duties. Respondent rejected that proposal 'and gave its reasons for its position. On January 14, the matter was discussed in-detail again and Respon- dent said that it planned to go forward with itsproposal on February 1, ` 1970. The Union demanded another meeting before the plan went into effect and Respondent agreed.'On the same day, Respondent met again with the, operators, told them, that its position had firmed up, asked who'was interested, and discussed' salary. At another meeting with the operators on January 16, Respondent once more discussed salary and-on January 20 Respondent made an offer to them. On January 23, Respondent told employee Patton in effect that it was definitely going ahead with its p'l'an= On Jan4ary,26, Respondent met with the Union and the Union proposed that the operators remain in the unit for a 6-month trial period even though they had supervisory duties. This counterproposal was rejected by Respondent and the-Union'ivas told that the plan would go into effect on February 'I.'-On January27, 1970` Respondent once again met with the Union and told their that the plan would go into effect on February 6. ^ It-is true that Respondent originally broached its plan to the Union- on December '9 as a pure proposal and that at subsequent negotiating sessions it took a harder and harder line toward' the`change. However, from the facts set forth above, I am unable'lo' -find that Respondent was merely going through the motions of bargaining prior to putting into effect 'a preconceived decision. Respondent met on numerous occasions, discussed the matters in full-with' the Union, and gave detailed explanations, of its position over the 2-month period between the time it proposed the :plan and the 'time the plan was put into effect. There is no evidence on the record that Respondent was attempting to undermine the Union or weaken its bargaming power. 'Respondent's actions' with regard to the proposed change must be viewed in' the context of its overall bargaining tactics. Respondent' from the time it 'succeeded to the operation of `the plant accepted its obligations under the contract and its duty to bargain with the Union.'Theie is no' allegation, ' - other =than the one relating to the change in status of the operators, that Respondent failed to'ineet and 'bargain in good faith with the'Union or' in any way tried to undermine ,the Union. A collective-bargaining contract-was ultimately executed. With regard to the proposed change, 13 It is noted that Russell Davis, one of the proposed supervisors, was the president of the Union. See Nassau and Suffolk Contractors Association, the fact that Respondent rejected-the Union's counterpro- posal , that the supervisors remain in the bargaining -,unit does not indicate that, Respondent was refusing to-bargain. Even assuming that the counterproposalwasinallrespects lawful,13,under,Section 8(d) of -the Act, Respondent was not- required to make a concession. The Board has refused to find a refusal to bargain, in situations similar to the one in_thepresent case~eventwhere an employer took, a harder position than the, one assumed by the Respondent,-- In Laclede Gas Company, 171 NLRB No, 180, the Board dismissed a complaint in which it was alleged that anemployer presented the union with a fait, accompli in connection with the elimination of certain bargaining unit work. In that case the company notified the union by letter that certain jobs would be abolished in 3 weeks and the duties that had formerly been performed by the bargaining unit employees ' would at that time be vested in supervisors. The company also expressed its willingness, to discuss the details of the change. In spite of this form of notification given by the employer, it was found that 'the company was willing and sought to discuss the proposed changes and did not violate the Act. In a similar vein, 'the Board dismissed the complaintin American Bus Lines, Inc., 164 NLRB 1055. In that case an employer wrote to a union advising,it that in 8 days the company was promoting all, its porters to another position where a concomitantof such a ^ promotion would involve the disappearance- of the Union's bargaining unit: The letter invited the union to communicate with the company on any phase of the situation it desired to discuss. The union protested,sthe change; called it an invasion of its statutory rights, and filed an ^'unfair labor practice charge. Relying in part on the union's , failure to prosecute, its right to--. engage in the discussions offered- by the, company, the Board refused to find,that the company violated Section 8(a)(5) of the Act. I find that, Respondent did bargain in good faith with the Union concerning the abolition of the operator- position. However, the duty- to bargain requires that no unilateral change be made in the absence of impasse. 3. The impasse issue As Respondent did make a unilateral change, the impasse question must be considered-The- general criteria for determining impasse- is, set forth-in Taft Broadcasting Co., 163 NLRB 475, enfd. 395 F.2d 622 (C.A.D.C.), where the Board held: { , 1, 1 An employer violates his duty to bargain if, when negotiations are sought or are in progress, he unilateral- ly institutes, changes in existing terms and conditions of employment., On the other hand, after bargaining to an ,impasse, that, is, after ,good faith negotiations have exhausted the prospects of concluding anagreement, an employer-does not violate the Act by making-unilateral changes that are reasonably comprehended.-within his pre-impasse proposals. Whether _ a,, bargaining, impasse exists is a matter of judgment.' he bargaining history, the good faith, of the parties ,in negoti ati ons, the' length of negotiations, the Inc. and Local 138, International Union of Operating Engineers, AFL-CIO, -1118 NLRB 174. ' TESORO PETROLEUM CORP. importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of negotiations are all relevant factors to be considered in deciding whether an impasse in bargaining existed. [Footnotes omitted.] In that case there was no evidence that the company engaged in bad-faith bargaining; the company wanted certain changes in working conditions to give it greater flexibility in assigning employees; the union protested a serious loss to its members; both parties took strong positions and both parties bargained in good faith with a sincere desire to reach agreement. The Board found that an impasse was reached after 23 bargaining sessions and that the employer's implementation of, the unilateral change was not a violation of the Act. The Board noted that at the time of the unilateral change, the parties, were closer to agreement because of the resolution of other issues by the parties but concluded that "an impasse is no less an impasse because the parties were closer to agreement than previously, and a deadlock is still a deadlock whether produced by one or a number of significant and'unresolved differences in • positions." See' also National Spinning Company, Inc., 174 NLRB No. 63 enfd. 419 F.2d 391 (C.A. 4). In Dallas General Drivers, Warehousemen and Helpers, Local Union No. 745 v. N.L.R.B., 355 F.2d 842 (C.A.D.C), the court held: There is no fixed definition of an impasse. or deadlock which can be, applied mechanically to all factual situations which arise in the field of industrial 14 In the event-no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herein shall, as provided in 361 bargaining. Nor is there a rigid formula for assessing so -subtle an issue as the precise time when an impasse occurs; but the fact that parties resumed discussion on issues other than wages (the subject of the unilateral change) after the date of the wage cut is not incompatible with the finding that an impasse on the wage issue had been reached by that date. Based on the facts set forth above, I find that Respondent notified the Union about the proposed change, bargained in good faith about the change, reached an impasse, and then unilaterally made the change that it had proposed during negotiations. The evidence does not establish- that Respondent violated the Act as.alleged in the complaint, and I shall recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor 'organization within the meaning of Section 2(5) of the Acf. 3. Respondent has not engaged in the = unfair labor practices alleged in the^complaint. - - Upon the foregoing findings of fact, conclusions of law, and the entire record , and pursuant- to Section 10(c) of the Act, I hereby issue the following recommended:14 ORDER The complaint is dismissed in its entirety. Sec. 192 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes.