Chemical Producers Corp.

National Labor Relations Board - Board Decisions

Jun 9, 1970

183 N.L.R.B. 141 (N.L.R.B. 1970)

CHEMICAL PRODUCERS CORP. 141
Chemical Producers Corporation and International
Union of Operating Engineers , Local 826,
AFL-CIO. Case 28-CA-1948
June 9, 1970
DECISION AND ORDER
By MEMBERS MCCULLOCH, BROWN , AND JENKINS
On February 18, 1970, Trial Examiner Herman
Marx issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Decision and a sup-
porting brief, and Respondent filed cross-excep-
tions and an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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, the
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions,' and recommenda-
tions of the Trial Examiner
The complaint alleged, inter alia, that Respond-
ent violated Section 8(a)(5) and (1) of the Act by
unilaterally granting wage increases during a strike
called by the Union in support of its bargaining
position. Respondent admitted that it unilaterally
granted the wage increases equal to its last bargain-
ing offer, but contended that the parties had previ-
ously reached impasse in negotiations . The Trial
Examiner dismissed the allegation, finding that a
genuine impasse existed. The General Counsel ex-
cepts. We agree with the Trial Examiner's finding
of impasse for the reasons set forth below, in addi-
tion to those set out in his Decision.
After about a dozen previous negotiation ses-
sions , the parties met on September 2, 1969. At the
conclusion of this meeting , the positions of the
parties had crystallized to differences on a few is-
sues , including wages for two employee classifica-
tions . About 3 weeks prior to the September 2
meeting, the Union had notified the Respondent
that the employees would strike, starting on Sep-
tember 8, 1969, in support of the unresolved de-
mands.
On September 5, 1969, in seeking to set a date
for another meeting , the Union's negotiator,
Givens, telephoned Respondent's negotiator, Par-
ton. Parton said he would meet, but that he could
see no purpose in any meeting consisting of a mere
repetition of positions previously taken by the
parties. Givens replied, "If that's the way you feel
about it we won't have any meeting,"2 thus indicat-
ing that the Union was not prepared to change its
position. Taking into consideration the background
of good-faith bargaining, the clear disagreement of
the parties, the failure of either side to express an
inclination to make further concessions, the
Union's declared intention to strike, and the
telephone conversation evidencing mutual assent to
the fact that further negotiations would prove fruit-
less, we find that a bona fide impasse existed at
least by September 5.
Nor are we satisfied that this impasse was broken
by subsequent events. Thus, following the Sep-
tember 5 telephone conversation, at 10 p.m. on
September 8, 2 hours before the strike deadline,
the parties again met . The Union's negotiator stated
that he wanted to avert a strike and that the Union
had "room to move," but made no concrete
proposals. Respondent's negotiator replied that the
Company's position was unchanged and that the
Company was prepared for a strike. As the Union's
negotiator did not even hint as to areas in which the
Union might be prepared to make concessions, the
meeting ended . The Union struck shortly after mid-
night.
Although the Union stated that it had room to
move, such a general statement , in the circum-
stances of this case, including the nature of past
bargaining and the clearly defined positions of the
parties , was not sufficient to break the impasse. Ac-
cordingly, we find that the impasse continued
through and beyond the September 8 meeting and
that Respondent's September 13 grant of unilateral
wage increases , previously offered the Union in
general contract negotiations, did not violate its
duty to bargain in good faith. For these reasons, we
agree with the Trial Examiner and shall dismiss the
complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
' In the absence of exceptions thereto, we adopt the Trial Examiner's
conclusion that Respondent did not violate the Act by unilaterally granting
183 NLRB No. 18
a wage increase to employee Walker
P Based on the uncontradicted testimony of Parton
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint herein be, and it hereby
is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN MARX, Trial Examiner: The complaint
alleges that an employer, Chemical Producers Cor-
poration ( herein the Respondent or Company), has
refused to bargain with a labor organization known
as International Union of Operating Engineers,
Local 826, AFL-CIO (herein called the Union), as
the representative of an appropriate unit of the
Company's employees, by making unilateral
changes in the wages and other terms and condi-
tions of employment of such employees; and has
thereby violated Section 8 (a)(5) and (1) of the Na-
tional Labor Relations Act' (herein the Act). The
Respondent has filed an answer denying the com-
mission of the unfair labor practices imputed to it .2
Pursuant to notice duly served by the Board's
General Counsel upon the Respondent and the
Union, a hearing on the issues was held before me,
as duly designated Trial Examiner, in El Paso, Tex-
as, on January 13, 1970. The General Counsel and
the Respondent appeared through respective coun-
sel, and all parties were afforded a full opportunity
to adduce evidence, examine and cross-examine
witnesses , submit oral arguments, and file briefs.
Upon the entire record and my observation of
the demeanor of the witnesses, and having read and
considered the respective briefs of the General
Counsel and the Respondent filed with me since the
close of the hearing, I make the following:
FINDINGS OF FACT
1. NATURE OF THE COMPANY' S BUSINESS ; JURIS-
DICTION OF THE BOARD
The Company is a Texas corporation; maintains
an office and place of business in El Paso, Texas,
where it is engaged in the business of producing
and selling chemical products, including sulphuric
acid; and is, and has been at all material times, an
employer within the meaning of Section 2(2) of the
Act.
During the calendar year preceding the issuance
of the complaint, in the course and conduct of its
business operations in Texas, the Company has
processed products valued in excess of $50,000,
and has sold and distributed products valued in ex-
cess of that sum to customers located outside the
said State. By reason of such gale and distribution,
' 29 U S C 151, et seq
' The complaint was issued on October 31, 1969, and is based on a
the Company is, and has been at all times material
to the issues , engaged in interstate commerce, and
operations affecting such commerce , within the
meaning of Section 2 ( 6) and (7) of the Act. Ac-
cordingly , the Board has jurisdiction over the sub-
ject matter of this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The Union is , and has been at all material times,
a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
As the record establishes without dispute, all
production and maintenance employees, including
truck drivers, employed at the Company's place of
business in El Paso, Texas, but exclusive of office
clerical employees, professional employees, guards,
and supervisors as defined in the Act, constitute,
and have constituted at all material times, a unit ap-
propriate for the purposes of collective bargaining,
within the meaning of Section 9(b) of the Act.
Employees in the unit, numbering about 17 or 18
in all, variously hold the job classifications of
operator, operator's helper, utility man, main-
tenance mechanic, truck driver, and laborer.
The production of sulphuric acid at the plant is a
continuous 24-hour process, entailing three shifts
and the assignment of an operator and helper to
each. The operators' basic functions are to keep the
acid-processing equipment under requisite observa-
tion, and to make analyses of the product, and ad-
justments in the equipment and process, as may be
necessary. Operators and helpers usually work
rotating shifts, changing from one to another every
7 days. The operator and helper on duty during the
two night shifts are usually the only employees in
the plant during their shifts.
All employees in the unit, whether on the day or
night shifts, are subject to supervision by a
foreman, Ira Couch, who is authorized to hire,
discharge, transfer and assign employees. He is sub-
ordinate to the plant manager, E. J. Creider, who
has overall responsibility for operation of the plant,
but is subject to direction by its general manager,
Arthur Parton, who is also vice president of the
Company. Couch, Creider, and Parton are super-
visors within the meaning of Section 2(11) of the
Act.
On January 24, 1969, following a representation
election, held under the Board's auspices, the
Union was duly certified as the exclusive represen-
tative of all employees in the unit for the purposes
of collective bargaining, within the meaning of Sec-
tion 9(b) of the Act. It holds that status now, and
charge filed by the Union on September 10, 1969 Copies of the complaint
and charge have been duly served upon the Respondent
CHEMICAL PRODUCERS CORP. 143
has held it at all times since the certification . operators , and 18 cents more than the Company's
B. The Wage Increases
The certification was followed by about a dozen
bargaining meetings between the Union and the
Company prior to one on September 2, 1969.3 The
Union's demands included wage increases for all
classifications of employees in the unit; provisions
for checking off union dues; and a wage differential
for the night shift. Some 3 weeks before the Sep-
tember 2 meeting, the Union had notified the Com-
pany that the employees would strike, starting on
September 8, in support of the demands still un-
resolved at that date.
As matters stood at the close of the September 2
meeting, an accord had been reached on wages for
all classifications except those of operator and
laborer, the difference amounting to 3 cents an
hour for the former, and 5 cents an hour for the
latter.4 During the course of the meeting, the Union
proposed that the Company apply to the requested
wage increases still in dispute the cost of supplying
and laundering the employees' work clothes, an ex-
pense previously borne by the Company, and that
the employees thenceforth bear such cost. Parton,
who spoke for the Company at the meeting, said
that he would consider the matter.
The parties were then also at issue over the
Union's wage differential and checkoff demands,
the Company rejecting both, and taking the posi-
tion regarding the checkoff that the period for
which the Union sought to make the checkoff
authorizations binding was too long. A representa-
tive of the Union, J. D. Givens, said that he would
propose language shortening the period, and Parton
stated that he "would like to see" the proposal.
The meeting ended with an understanding that
the parties would meet again at a time to be ar-
ranged on the initiative of one or the other.
On September 3, the Company promoted one of
the operators, William Walker, to the position
of "lead operator and assistant foreman," in-
creasing his hourly rate, without consultation
with the Union, from $3.35, the rate then in
effect for operators, to $3.75 per hour (15 cents
more than the rate sought by the Union for the
9 Unless otherwise specified, all dates mentioned below occurred in
1969
' A negotiator for the Union, J D Givens , testifying for the General
Counsel, and manifesting some uncertainty, expressed a belief that wages
for the drivers were also in dispute as of the September 2 meeting, but at a
later point the General Counsel in effect conceded that " agreement had
been reached as to drivers " The results here are the same whether or not
such an accord had been reached
Replying to a•question by the Respondent 's counsel about a "meet-
ing" on September 5, Parton gave an account of his conversation with
Givens on that date , thus implying that there was a "meeting " on Septem-
ber 5 However, it is evident from his later testimony , as well as that of
Givens, that the conversation between them that day was on the tele-
phone
6 According to Givens, the meeting had been arranged for 3 p in in a
telephone conversation with Parton on September 6 or 7, but Parton did
offer); and posted a notice, addressed to "all per-
sonnel ," announcing the new position for Walker,
and expressing the expectation that "everyone will
give Mr. Walker the same consideration and atten-
tion to instructions that is afforded to all superviso-
ry personnel." Walker thereafter continued to func-
tion as an operator, taking his regular turn, with
some additional duties to which reference will be
made later.
On September 5, Givens telephoned Parton; read
to the latter a "management rights clause," a sub-
ject in which Parton had previously expressed in-
terest, and a revised checkoff proposal; and
requested a meeting. Parton replied that he would
meet, but that he could see no purpose in a meeting
for repetition of positions. The conversation ended
without any arrangement for another meetings
However, by subsequent arrangement, the parties
met at the Company's office again at 10 p.m. on
September 8, shortly before the time for the
scheduled strike.6 The meeting was brief, and what
occurred, in substance, was that a representative of
the Union named Wilson told Parton that it would
like to avert a strike, and that it "had room to move
on the unresolved issues "; and that Parton replied
that the Company "could not move" on them; had
nothing new to propose, and was ready for a strike.
Neither side made any new proposal.
The strike began about 2 hours later and lasted
for approximately a week, ending in circumstances
that do not appear in the record.
On September 13, 2 days before the end of the
strike, the Company, without any further negotia-
tion with the Union, put into effect the wage in-
creases on which agreement had been reached, and
the respective rates it had last offered the Union for
the operators and the one laborer in its employ.'
C. Discussion of the Issues; Concluding Findings
The ultimate issues in this proceeding are (1)
whether the Company violated its bargaining
obligation by increasing the wage rates for the
operator and laborer classifications, as described
above; and (2) whether the increase given Walker
separately constituted an unlawful refusal to bar-
gain.
not appear , telephoning the office after Givens had waited almost 2 hours
that he had been delayed, and then agreeing to meet at 10 Parton, on the
other hand, denied that they had fixed a definite hour in the earlier conver-
sation, stating that he had told Givens on that occasion that he would be
"available to talk to him if he had any new positions", but that he was out
of the office and unavoidably busy elsewhere when Givens came there in
the afternoon The issue need not be resolved, for there is no dispute that
the parties did, in fact, meet , by agreement , on the night of September 8 In
any event, I believe it likely that Givens and Parton differed in their un-
derstanding of their initial discussion of a meeting for September 8, find
Parton's explanation of his absence on the afternoon of that date credible,
and see no basis for a holding that he acted in bad faith in not meeting with
Givens that afternoon
' The Union's last demand for the operators was an hourly rate of $3 60,
and $1 80 for the laborer, and the Company 's last offer in the negotiations
had been $3 57 for the operators and $1 75 for the laborer
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dealing, first, with the legality of the increases
for the operator and laborer classifications, it is
well settled that upon a genuine bargaining impasse
over wages, an employer does not violate his bar-
gaining obligation by increasing those of the af-
fected employees to the levels he had offered their
bargaining representative in wage negotiations con-
ducted in good faith.'
The principle fits the facts here. What there is in
the record on the course of the wage negotiations
demonstrates good-faith bargaining by the Com-
pany on the subject. It reached agreement with the
Union on increases for all but two of the classifica-
tions, and with respect to these two, receded from
positions previously taken, as the negotiations
progressed, with the result that the Company's last
offer for both represented a substantial increase for
each, and was but a few cents lower, in each case,
than the rate sought by the Union.
That the parties were at an impasse on the
remaining wage issues, at least, by the end of the
September 8 meeting, if not earlier, is hardly open
to question. That view of the matter is un-
diminished by the fact that at the September 2
meeting Parton had said he would give further con-
sideration to the Union's clothing allowance
proposal, and had expressed interest in a "manage-
ment rights clause," and in seeing a revised
checkoff proposal in writing. The record impels a
conclusion that by the end of the September 8
meeting, the Company's position on these matters
and the remaining issues had hardened into a
resolution by the Company to take a strike rather
than yield any ground. In the face of the imminent
strike, this was the clear meaning of Parton's state-
ments at the meeting that the Company "could not
move," had nothing to propose, and was ready for
the threatened strike. It is noteworthy that these
positions were taken in response to Wilson's state-
ment that the Union "had room to move on the un-
resolved issues"; and that the Union did not, in
fact, "move" at the meeting, but, instead launched
the strike shortly thereafter. In the context of cir-
cumstances, the very fact that it followed this
course is persuasive evidence that it, too, regarded
the negotiations as deadlocked.
I find, in short, that the negotiating parties
reached a genuine impasse in collective bargaining
on the subject of the wage rate increases for the
operator and laborer classifications, and that the
Company did not violate its bargaining obligation
by the increases put into effect on September 13.
As for Walker, the central question is whether his
promotion constituted him a supervisor within the
purview of the Act. The General Counsel makes no
8 N L R B v Bradley Washfountam Co, 192 F 2d 144, 150-152 (C A
7), American Laundry Machine Co, 107 NLRB 1574, 1581, cf N L R B v
Crompton-Highland Mills, Inc , 337 U S 217, 224, N L R B v Benne Katz,
etc, dlbla Williamsburg Steel Products Co , 369 U S 736, 745
" The General Counsel's cross-examination of Creider would make it ap-
pear that Creider testified that prior to Walker's promotion, the combined
average of nighttime and weekend calls from operators to himself and
claim that the Company was obligated to bargain
over a promotion to that status, but argues, rather,
that Walker did not, in fact, achieve it, and is thus
still in the bargaining unit, and that, therefore, the
wage increase given him, without negotiation with
the Union, constituted an unlawful refusal to bar-
gain.
That Walker, in contrast to Foreman Couch, who
is paid a straight weekly salary, is paid at an hourly
rate and takes his regular turn as an operator is not
decisive of the issue, for he was given additional du-
ties as assistant foreman. Nor is it controlling that
Walker is "in training" for the job of foreman, nor
that at a meeting with representatives of the Union,
held during the week following the end of the
strike, in reply to a query by Wilson as to Walker's
status, Parton said that the latter was "a lead opera-
tor," and "supposed that he was still in the bargain-
ing unit ." (Creider, who was present, took a contra-
ry position, stating that Walker is a supervisor, and
"can't be in the bargaining unit.") The nub of the
matter is that the labels given Walker do not define
his status under Section 2(11) of the Act, and that
the hinge question is whether any of the additional
duties given him with his promotion place him
within the reach of the statutory definition of "su-
pervisor."
The fact that the processing of sulphuric acid at
the plant is a continuous 24-hour operation bears
materially on the issue. From time to time, an
operator on duty during one of the two nightshifts
or on weekends, or a driver engaged in night haul-
ing, will encounter a problem or other situation
which requires a supervisory judgment, and in such
cases , prior to Walker's promotion, the employee
involved usually called Couch or Creider at home
for instructions, looking primarily to Couch rather
than Creider, for direction, since Couch was the
immediate supervisor of the labor force. Calls to
Couch from operators at night and during
weekends averaged some four to six a week.9 Either
he or Creider was usually at home on weekends to
be available for a call from the plant.
Parton gave testimony to the effect that the labor
force at the plant is too small to require two full-
time foremen, but that the continuous nature of the
operation requires "full-time supervision"; and that
the new position was created to provide a substitute
for Couch to receive calls from employees in need
of supervisory direction while on duty during the
night or on weekends, thus providing relief for
Couch during such period, and obviating any neces-
sity that either he or Creider remain at home every
weekend.
Couch amounted to four, but what Creider said, in effect, was that "in ad-
dition" (to one or two weekend calls, according to the sense of the
testimony), Couch was receiving "three or four during the week " I credit
this estimate , noting in that regard that it is not refuted by testimony by one
operator, Eugene Barrera, that during the night shift tours that he has had
since Walker's promotion, the latter has come to the plant only once
CHEMICAL PRODUCERS CORP.
According to Creider, upon creation of the new
position, he filled it with Walker, who was then the
"senior operator," with substantially more ex-
perience than the other three operators; and told
Walker, upon his appointment, that his duties
would be "very similar" to those of Couch, "but to
a somewhat lesser degree," and that he and Couch
were to be available at home on alternate weekends
for calls from employees on duty. Creider testified,
too, without specifying any date, that he told
Walker that he has authority to discharge, repri-
mand, or otherwise discipline employees; change
their work assignments , act on grievances; and
make hiring recommendations.
The General Counsel intimated a position at the
hearing (although omitting the claim from his brief)
to the effect that Walker's promotion, which came
less than a week before the strike, was a subterfuge,
in anticipation of the strike, aimed at giving Walker
a supervisory facade for continuing to work during
the strike. Parton denied having such a purpose.
There is actually no evidence that Walker worked
during the strike, but whether he did or not, the
weight of the evidence does not support the
General Counsel's intimated theme. In view of the
continuous processing operations and nighttime
trucking, it seems only rational that the Company
would provide for an additional supervisory aide
empowered to act on emergency calls from the
plant or drivers on the road, thus materially reduc-
ing the amount of time Couch would otherwise be
confined to his home at night and on weekends to
keep himself available for such calls, and substan-
tially relieving Couch's superior, Creider, of the
burden of calls of that nature. Significantly, the
Company has a history of successive designations of
various operators (apparently no longer in its em-
ploy) to serve as relief for Couch and Creider in
taking emergency calls at home during night and
weekend shifts. Neither the authority of such per-
sonnel, nor the extent to which they exercised it, is
spelled out with sufficient detail or clarity to war-
rant a judgment whether their supervisory status
met the statutory definition, and, in any case, their
status is not in issue ;10 but the very fact that the
Company has a history of attempting to provide
some supervisory relief for Couch and Creider ar-
gues against a claim that the new position given
Walker was but a contrivance designed to serve a
strike-breaking purpose of the management.
Moreover, so far from being merely theoretical,
Walker's supervisory authority is exercised in sub-
stantial ways. He receives and handles about a third
"According to Creider, these operators did not have the authority
given Walker, and Parton testified that the system "didn't work out for
various reasons" (not elaborated) The General Counsel , in effect taking
the position that such operators were not supervisors within the meaning
of the Act , sees significance in the fact that none had the title of "assistant
foreman " But the absence of a label, like its presence , does not define a su-
pervisory status under the Act , nor does the record establish that the opera-
tors in question had the same duties, in all material respects, as Walker now
has
145
of the night and weekend calls made by employees
seeking supervisory guidance or direction (Couch
receives and handles the balance); keeps himself
available for such calls every other weekend, alter-
nating with Couch; and during his weekend turns,
visits the plant to make sure that it is operating
properly and that those on duty are adequately sup-
plied. He has rearranged and extended shift
schedules of other employees to fill manpower
needs occasioned by absences because of vacations
or illnesses; has assigned drivers and trucking
equipment to meet emergency problems on the
road; in response to complaints from employees
that they have been harrassed by other employees,
has warned the latter that they are subject to
discharge or other discipline for misconduct; has
authorized overtime by other employees on a
number of occasions; has served as a graveyard
shift foreman for a period of about a week in super-
vising the work of eight or more employees en-
gaged in a special project of overhauling equip-
ment; and has effectively recommended the promo-
tion of a helper to a position as "stand-by opera-
tor." In addition, Walker , as assistant foreman, has
various functions and privileges which although not
of themselves supervisory in nature are often
identified with a supervisory status. Thus, unlike
any other employees in the bargaining unit, he at-
tends meetings of management personnel; has keys
to the entire plant, including the office; and has ac-
cess to the Company's personnel and other office
records."
It is reasonable to infer that when an operator on
a night or weekend shift encounters an emergency
that leads him to look to Couch or Walker for
direction or guidance, the problem is not routine,
but requires the exercise of responsible and inde-
pendent judgment by the supervisor for its resolu-
tion, and that conclusion is reinforced by the fact
that the production processes at the plant may in-
volve safety hazards if the equipment is not
operated properly. Similarly, the record warrants a
conclusion that such supervisory functions of
Walker as the authorization of overtime , assign-
ment of employees, rearrangement of shift
schedules, and the dispatch of drivers and trucking
equipment to meet road emergencies require his
use of responsible and independent judgment.
While it is true that Walker's actual working time
is devoted, in the main , to the nonsupervisory du-
ties of an operator, and the actual applications of
his supervisory authority are subject to the vagaries
of industrial chance and circumstance, the Act
" The findings as to Walker's supervisory functions are based on un-
disputed testimony given by him and Creider This testimony is not effec-
tively refuted by Barrera's testimony to the effect that on the occasions
that he has worked at night since Walker's promotion, the latter has come
to the plant only once " as a trouble-shooter," and on that occasion, in
response to an emergency call by Barrera to Creider who , according to
Barrera, sent Walker Conceivably , Barrera's experience with Walker is
not typical of that of other employees on night and weekend shifts
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prescribes no quantum standard for the per-
formance of any of the functions that qualify one
for supervisory status within the statutory defini-
tion, and it would serve no useful purpose to search
for analogy among the many cases where the Board
or the courts have had occasion, in applying the
definition, to draw a line between part-time super-
visory functions that are substantial and those that
are not. Because of the vast range of variables that
may condition the actual function and scope of a
supervisory structure, each case must of necessity
be determined on its particular facts. Here the deci-
sive considerations, in my view, are that Walker is
vested with standing authority to exercise responsi-
ble supervision over the assignment and work of
other employees of the Company during all night
shifts, and on alternate weekends, as circumstances
require, and that these have arisen in substantial
number, and with substantial frequency, as I infer
from the evidence that he handles about a third of
the night and weekend emergency calls. Because of
such considerations, I find that Walker is, and has
been since his promotion to the position of assistant
foreman, a supervisor within the meaning of Sec-
tion 2(11) of the Act.
That determination leads me to conclude, and I
find, that the Company did not violate its bargain-
ing obligation by unilaterally giving Walker the
wage increase that went with his promotion to that
supervisory status.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact,
and upon the entire record in this proceeding, I
12 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , and Recommended Order herein shall , as provided
make the following conclusions of law:
1. The Company is, and has been at all material
times, an employer within the meaning of Section
2(2) of the Act.
2. The Union is, and has been at all material
times , a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees,
including truck driver, employed at the Company's
place of business in El Paso, Texas, but exclusive of
office clerical employees, professional employees,
guards, and supervisors as defined in the Act, con-
stitute, and have constituted at all material times, a
unit appropriate for the purposes of collective bar-
gaining , within the meaning of Section 9(b) of the
Act.
5. The said Union is, and has been at all material
times , the exclusive representative of all the em-
ployees in the aforesaid unit for the purposes of
collective bargaining, within the meaning of Section
9(a) of the Act.
6. The record does not establish that the Com-
pany committed the unfair labor practices imputed
to it in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law , and the entire record
in this proceeding , I recommend that the Na-
tional Labor Relations Board dismiss the com-
plaint.12
In Section 102 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