Tesoro Petroleum Corp.

National Labor Relations Board - Board Decisions

Jul 29, 1971

192 N.L.R.B. 354 (N.L.R.B. 1971)

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.