Zenith Radio Corp.

National Labor Relations Board - Board Decisions

Jun 21, 1968

172 N.L.R.B. 83 (N.L.R.B. 1968)

WINCHARGER CORPORATION 83
Wincharger Corporation , Subsidiary of Zenith
Radio Corporation and International Association
of Machinists and Aerospace Workers , AFL-CIO,
Victory Lodge 1637. Case 18-CA-2439
June 21, 1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS , AND ZAGORIA
On April 9, 1968, Trial Examiner Robert E. Mul-
lin issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in unfair labor practices as alleged in the
complaint and recommending that the complaint be
dismissed, as set forth in the attached Trial Ex-
aminer 's Decision . Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Respondent filed 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 and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
answer and amended answer, duly filed, the
Respondent conceded certain facts with respect to
its business operations, but it denied all allegations
that it had committed any unfair labor practices.
All parties appeared at the hearing and were
given full opportunity to examine and cross-ex-
amine witnesses , to introduce relevant evidence, to
argue orally at the close of the hearing, and to file
briefs. Oral argument was waived by the parties. On
December 21, 1967, briefs were submitted by the
General Counsel and the Respondent. A motion to
dismiss, made by the Respondent at the close of the
hearing, was taken under advisement. It is disposed
of as appears hereinafter in this Decision.
Upon the entire record in the case, including the
briefs of counsel , and from his observation of the
witnesses , the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is engaged in the manufacture
of radios, electrical generators, electrical motors,
and electronic equipment at its plants in Sioux City,
Iowa. During its last fiscal year, a representative
period, it manufactured, sold, and shipped from
these plants, finished products valued in excess of
$50,000 directly to points outside the State of Iowa.
Upon the foregoing facts the Respondent concedes,
and the Trial Examiner finds, that Wincharger Cor-
poration a subsidiary of Zenith Radio Corporation,
is engaged in commerce within the meaning of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
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.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Trial Examiner: This case
was heard in Sioux City, Iowa, on November 6,
1967, pursuant to charges duly filed and served,'
and a complaint that was initially issued on August
24, 1967. The complaint, as amended on October
11, 1967, presents questions as to whether the
Respondent violated Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended. In its
The Respondent concedes, and the Trial Ex-
aminer finds, that International Association of
Machinists and Aerospace Workers, AFL-CIO,
Victory Lodge 1637 (herein called Union or IAM),
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Appropriate Bargaining Unit
Since 1947, when the IAM was certified by the
Board as the bargaining agent for a production and
maintenance unit at the Respondent's operations in
Sioux City, the Union and the Company have had
continuous collective-bargaining relations. From
the beginning of this relationship, the employee
classifications of "supervisor" and "lead workman"
have been included within the bargaining unit. The
current contract provides that such supervisors
shall receive compensation at the minimum rate of
' The original charge was filed on June 27, 1967. On September 22,
1967, the Union filed a first amended charge.
172 NLRB No. 17
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
20 cents an hour above the highest rate payable to
employees under their supervision and that lead
workmen shall receive at least 10 cents an hour
more than the highest rate applicable to employees
under their direction . The parties are in agreement
that supervisors and lead workmen , as those clas-
sifications apply at the Respondent 's operations in
Sioux City, are not supervisors within the meaning
of the Act.'
The General Counsel contends , the Respondent
concedes , and the Trial Examiner finds, that at all
times material herein the Union has been the cer-
tified collective -bargaining agent of a unit consist-
ing of all production and maintenance employees,
including all hourly paid workers employed by the
Respondent at its plants in Sioux City, Iowa, but ex-
cluding office clericals and all supervisory person-
nel as defined in the Act.3
B. The Company 's Expansion and Internal
Reorganization During the Period from 1965 to
1967
Sometime during the course of the year 1965 the
Respondent made a decision to increase the
number of foremen and foreladies and assistant
foremen and assistant foreladies" employed by the
Company. This resulted, in part, from the Com-
pany's plan to add another building to its existing
facilities that would enable it to double the number
of employees and, in part, from a desire to
strengthen the management structure.
Roy Barnum, personnel director for the Respon-
dent, testified that in August 1965, when a number
of supervisors were promoted to higher classifica-
tions, the Respondent concluded that a different
type of supervision was needed in certain areas
which the existing classification of supervisor did
not provide. Barnum testified that up until then the
effectiveness of a supervisor in the Company's per-
sonnel structure was limited by several factors.
Principal among these, according to Barnum, was
the fact that under the collective-bargaining agree-
ment, in the event of a layoff a supervisor could
bump back into the hourly paid position he had
held before becoming a supervisor. Barnum
testified that this made it difficult for a supervisor
to direct the employees on a line or question their
work ability when he knew that at a later day he
might be returned to his former rank-and-file job
on the same line. A similar explanation for this
move was offered by Ernie J. Hillebrand, who
became factory manager in 1965. According to Hil-
lebrand, upon first assuming his new post in 1965,
he concluded that the Company was not getting the
most out of the factory's supervision and that the
management hierarchy was inadequately staffed.
Hillebrand testified: "When I first came here
there was only one general foreman for all of the
radio division, which was entirely too much for one
man to handle . the hourly paid supervisors
weren't really in there supervising the lines the way
a management person should, they didn't take
proper disciplinary action, operators were perform-
ing a poor quality of work ... some [absentees]
were never a point of discussion unless the foreman
of that division would question the hourly paid su-
pervisors, and then he would take the disciplinary
action." Hillebrand further testified that because of
the foregoing problems "[E]ven prior to the open-
ing of the second plant [in the fall of 1966] we had
made a decision to put one salary person ... a
management forelady , on one chassis line and have
an hourly paid supervisor on the other chassis line."
According to Hillebrand, this arrangement was
established to enable the salaried forelady to be in
charge of both lines with an hourly paid supervisor
as her assistant.'
Eldon B. Hansen, an employee of the Respon-
dent for many years and chairman of the union
negotiating committee, testified that in 1965 and
prior to the time that several supervisors were
2 The current collective-bargaining agreement carefully spells out the ex-
clusions so that , as noted above , supervisors and lead workmen are kept
within the bargaining unit Thus, article 11, the recognition clause , provides
that the unit shall consist of "all production and maintenance employees in
the Sioux City , Iowa plants of the Company as certified by the National
Labor Relations Board on March 27, 1947, excluding office personnel and
supervisory employees with the authority to hire, promote, discharge,
discipline , change the status of an employee , or effectively recommend
such action , provided that the above language shall not exclude anyone below
the rank ofAsststant Foreman, it being the intention [of the parties] that all
employees of the Company paid on an hourly basis shall be included within
such unit " ( Emphasis supplied )
' For the sake of clarity, wherever "supervisor ," or "bargaining unit su-
pervisor," appears hereinafter , the term is used in the same sense as in the
collective -bargaining agreement , rather than in the meaning accorded it by
the statutory definition set forth in the Act
' In his brief the General Counsel has raised the question as to whether
there were foreladies or assistant foreladies in the plant hierarchy prior to
1965 The record, however, is silent on this issue
' On August 16, 1965, the Respondent effected the following reclassifi-
cations
(1) Joe Mitchell from supervisor in radio phasing to assistant foreman in
radio phasing.
(2) Given Ives from leadman in rivoting to assistant foreman in rivoting
(3) Clara Sachau , Virginia Gallagher, and Doris Ullrich from super-
visors on the radio chassis line to assistant foreladies on the chassis line
(4) George Boykin, Ronald Ellefson, and Eugene Swart from super-
visors in radio final assembly to assistant foreman in radio final assembly
' The parties stipulated as to the number and types of such reclassifica-
tions which took place in 1966 They were as follows.
(I) Pauline Schroeder from supervisor in armature winding to assistant
forelady armature winding
(2) Richard Platzcek from supervisor in radio inspection to assistant
foreman radio inspection.
(3) Kenneth Taylor from supervisor in final assembly to assistant
foreman final assembly
(4) Evelyn Courey from supervisor in armature winding to assistant
forelady armature winding
(5) Marlys Antrim, Gloria Downs, Phyllis Krabbenhoft , and Jeanette
Clift from supervisors on the radio chassis line to foreladies on the radio
chassis line
(6) Donald Dion from supervisor in radio final assembly to foreman in
radio final assembly
WINCHARGER CORPORATION
promoted to assistant foremen, the Respondent had
a supervisor on each production line. Thereafter,
according to Hansen , some of the supervisor posi-
tions were eliminated.
In July 1965 there were nine supervisors in the
radio assembly department.7 In August 1965 six su-
pervisors in this department were reclassified to
assistant forelady or assistant foreman. Apparently,
only one of these supervisors was replaced, for in
September of that year there were four supervisors
left in the radio assembly department.
In October 1966 the opening of the new plant
resulted in a considerable expansion' and during
that month the Respondent had six supervisors in
the radio assembly department. In November 1966
the Respondent reclassified four of these super-
visors to foreman or forelady. The following month
the number of supervisors in that department was
reduced to two, and by July 1967 there was only a
single supervisor there.
The General Counsel endeavored to establish
that throughout the period from 1965 to 1967 there
was a steady decline in the number of supervisors.
This contention, however, was only partially sup-
ported by the evidence. The Respondent offered an
exhibit which set out the following tabulation on
the ratio of supervisors and lead workmen to hourly
paid employees in the bargaining unit:
ate upervisors
ead
Workmen
Total
Supervisors
and Lead
Workmen
Ratio of
Supervisor. &
Lead Workmen to
Total Number in
Bargaining Unit
7 / 19/65
J
19 6 25 1 to 34.4
9/20/65 14 8 22 1 to tl
10/17/66 18 0 28
36
12 20 66 17 10 27 1 to 39.9
7 17 67 8 6 14 1 to 55.9
10 1 67 1.460 23 15 38 to 38. 4
From the foregoing it will be seen that whereas
there was a proportionate decline in the number of
supervisors to the total number of hourly paid em-
ployees, the reduction was not a precipitous one.
Moreover, the record does not bear out the sug-
gestion , also made by the General Counsel, that
during the period in question when a supervisor was
reclassified to assistant foreman, the vacancy
thereby created in the supervisor's position was
never filled. The record establishes that, in fact,
several of these vacancies were filled. Thus, of
seven witnesses for the General Counsel, all of
whom had been reclassified from supervisor to
assistant foreman or forelady during the period
from 1965 to 1967, three testified" that subsequent
to their being reclassified, a replacement supervisor
was appointed to fill the vacancy.
' This department consisted of subassembly , chassis assembly , and final
assembly.
85
C. The Union's Request for Bargaining on the
Reclassification Issue and the Company's Response
In April 1967 during a meeting of the negotiating
committee with Barnum and Hillebrand, Business
Agent O'Connor protested that a number of the su-
pervisors had been removed from the bargaining
unit. The Respondent's representatives took the
position that the matter of changing the status of
these employees was within the sole discretion of
the management.
On April 28 O'Connor wrote a letter of protest to
R. F. Weinig, vice president of the Respondent,
wherein he reviewed the discussion on the super-
visory issue with Barnum and Hillebrand, stated
that the Union would not accept the position of the
latter officials on the question and requested a
meeting with Weinig to explore the matter more
fully. O'Connor attached to the letter a list of
former supervisors, who, the Union contended,
were still doing bargaining unit work, notwithstand-
ing their reclassification to foremen or foreladies.
In a letter dated May 10, Weinig wrote O'Connor
that representatives of management would be
willing to discuss the issue with the Union's shop
committee but that the Company did not consider
the matter a subject for negotiation. In his letter
Weinig stated:
[The matter] is beyond the scope of the
authorization granted you as bargaining agent
for the Company's hourly paid production and
maintenance employees by the National Labor
Relations Board on March 27, 1947. All the
employees in question are either supervisory
employees at, or above, the rank of Assistant
Foreman, or Salaried Engineering employees,
or Salaried Office Employees; all of which are
not included in your certification by the Na-
tional Labor Relations Board.
In a letter dated May 17, O'Connor renewed the
request for a meeting wit the management to
discuss the removal from the bargaining unit of cer-
tain employees who were promoted to foreman or
forelady positions. In this connection, O'Connor
stated, in relevant part:
We were told some time ago that the company
would need some more foremen and foreladies
when it moved in to its new plant, but it ap-
pears that the company has promoted many of
these employees and they continue to perform
the same duties as they did prior to promotion
.... We are very doubtful of the true status of
many of the employees the company has
promoted to foremen and foreladies. It appears
that most of them continue to do the same
work they did before being promoted.
8 On October 17, 1966, there were 1,025 employees in the bargaining
unit, as compared with 782 on September 20, 1965
9 Viz, Virginia Gallagher, Joseph C Lange, and Joseoh Mitchell.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, on about June 15, O'Connor and the
shop committee met with William A. Amsler, secre-
tary and treasurer of the Respondent, and Person-
nel Director Barnum . At this meeting the latter
representatives reiterated the Respondent's previ-
ously stated position that the matter in question was
not subject to negotiation.
On September 6 O'Connor wrote to Amsler to
protest that Arthur Franker, a supervisor in quality
control, had been reclassified to foreman in that de-
partment, without changing the duties of his job
and without any notice having been given to the
Union.
The record reflects no formal answer to this
letter from the Union. In any event, it is undenied
that the Respondent's position, with respect to the
issue raised , remained unchanged from that which
it had expressed in the earlier correspondence and
at the meetings which management had held with
the union committee.
On September 22, 1967, the Union filed an un-
fair labor practice charge10 alleging that the
Respondent had violated Section 8(a)(1) and (5)
of the Act by unilaterally removing two supervisors,
Arthur Franker and Joseph Thomas, from the bar-
gaining unit by reclassifying them as foremen and
thereafter having them continue to perform the
same bargaining unit work which they had per-
formed prior to reclassification.
D. Contentions of the Parties ; Findings and
Conclusions With Respect Thereto
In support of the allegation that the Respondent
violated Section 8(a)(5), the General Counsel re-
lies only on the reclassification of Arthur Franker
and Joseph C. Thomas." The work of these last
named individuals, both before and after their
reclassification, will now be considered.
-Thomas was reclassified on March 16, 1967,
from supervisor in the material control department
to foreman in the same department. He testified
that as a supervisor he watched the stock and su-
pervised the stock clerks as they supplied material
to the production lines . Five employees, classified
as stock clerks, or stock chasers, worked under
him. According to Thomas, about 50 percent of the
time he himself helped the clerks on those occa-
sions when they fell behind. Thomas received $2.32
an hour as a supervisor.
After becoming a foreman in the same depart-
ment , Thomas continued to oversee the stock
clerks and chasers, but the number for which he
was responsible tripled. Thomas testified that since
his reclassification he spends very little time ac-
tually working with the stock clerks and that he
does so only in an emergency. From Thomas' unde-
nied and uncontradicted testimony it is likewise
clear that as a foreman he now has the authority
which clearly brings him within the statutory defini-
tion of a supervisor. Thus, Thomas now: issues
reprimands; recommends whether a probationary
employee is to be retained or terminated;12 grants
time off and assigns a replacement in case an em-
ployee is ill; keeps daily attendance records; selects
the employees who are to be authorized to work
overtime; has responsibility for the departmental
budget; recommends who will be assigned to work
in the department; and, if a grievance is filed, han-
dles the first stage of the grievance processing.
Upon being reclassified to foreman, Thomas
received a salary of $412 per month.13 Thomas'
former position as supervisor was never filled. Har-
vey A. Davis, manager of the material control de-
partment and the one immediately over Thomas in
the management hierarchy, testified that when first
moving into the new plant, Thomas was in charge
of chassis assembly which then had only one or two
production lines. According to Davis, shortly after
the move, this unit was expanded to 13 lines and, to
fill the need for a foreman there, Thomas was
promoted.
Franker was reclassified on August 16, 1967,
from supervisor in the quality control department
to foreman in the same department. Franker
testified that as a supervisor he helped the em-
ployees in the balance area, radio final area, and
the quality control laboratory when they had minor
problems. Any major problems were referred to J.
L. De Vries, manager of the quality control depart-
ment . While he was a supervisor, Franker had five
to eight employees under him.
After he became a foreman, Franker was respon-
sible for a total of 14 employees. Included within
this number were those whom he had supervised
before his reclassification. Franker testified that
whereas as a supervisor he spent about 25 to 30
percent of his time working along with the em-
ployees, he now spends only about 5 percent of his
time in this fashion, and that this occurs mostly in
emergency situations . From Franker's credible and
uncontradicted testimony it is apparent, and the
Trial Examiner finds, that as a foreman, Franker
now: assigns employees to their jobs; issues
warnings to, and disciplines, employees; makes
recommendations as to filling any vacancy which
"This was actually a first amended charge , an original charge having
been filed on June 27, 1967
" The General Counsel makes this concession in his brief , since all other
reclassifications which occurred at the Respondent 's plant were effected
more than 6 months prior to the filing of the first charge
"Thomas testified that if a probationary employee is unsatisfactory, "I
can have him dismissed "
IS This constituted a slight pay increase for Thomas. His hourly wage as a
supervisor gave him a total at the end of each month that was the
equivalent of a monthly salary of $402.
WINCHARGER CORPORATION 87
arises ;" has the sole discretion to reject finished
products when they do not meet quality standards;
has liaison duties with foremen of other depart-
ments in connection with problems arising as to de-
fective materials ; prepares numerous reports on the
quality of production; and has a clerk that works
under him to assist in the preparation of these re-
ports.15 As a supervisor, Franker was paid $2.79 an
hour. After being promoted to foreman he was
given a salary of $515 per month, or the equivalent
of $2.91 an hour.'1
From the findings set forth above, the Trial Ex-
aminer concludes and finds that both Thomas and
Franker, upon their reclassification to the position
of foreman, had the status of supervisors within the
meaning of Section 2(1 1) of the Act."
Throughout the General Counsel's argument, and
in his brief, there seems to be an assumption that
neither Thomas nor Franker, upon their reclassifi-
cation, became foremen within the meaning of the
Act. This assumption, however, is unfounded, for
the evidence clearly establishes that upon their
promotion these individuals became part of the
management hierarchy. Furthermore, there is
nothing in the record to indicate, nor does the
General Counsel contend, that their selection was
in any way discriminatory.
The initial question is whether the Respondent
was under a statutory obligation to bargain with the
Union regarding the nondiscriminatory choice of
supervisory personnel. The Board has already an-
swered that question in the negative. Kono-TV-Mis-
sion Telecasting Corporation, 163 NLRB 1005.11
The General Counsel contends, however, that the
promotion of these individuals and the duties as-
signed to them removed work from the bargaining
unit. In a sense , this is frequently the situation when
a leadman, or gang leader, is promoted to foreman
over his coemployees, as well as others, and his old
job in the unit is not immediately filled. Further, in
the Respondent's plant , with its personnel
phenomenon of a nonstatutory classification of "su-
pervisor," there was frequently an overlap between
the duties of such supervisors and those in the
lower levels of management.
The General Counsel further sought to establish
that many of the positions classified as supervisor
were either abolished or abandoned when the in-
cumbent was promoted to foreman. This appears to
have been the case with respect to the supervisory
jobs which Thomas and Franker had. On the other
hand, it was not true of some of those which had
been held by other witnesses for the General Coun-
sel who at an earlier date had been reclassified to
foreman or forelady.'9 Moreover, the data
produced by the Respondent clearly established
that by no means was the post of supervisor
eliminated as a job classification within the unit. On
September 20, 1965, when there were 782 em-
ployees in the bargaining unit, the Respondent had
14 supervisors. On October 17, 1967, when there
were 1460 employees in the unit, the Respondent
had 23 supervisors.
The Respondent's plan to increase the number of
foremen in order to provide more effective
discipline and meet the problems involved in a
rapid expansion of the plant personnel, all fell
within an area that has been left to the prerogative
of the Employer. Consequently, the Respondent
was not obligated to give notice to, or negotiate
with, the Union about its decisions or plans in this
connection. Kono-TV-Mission Telecasting Corpora-
tion, 163 NLRB 1005; cf. N.L.R.B. v. American
National Insurance Company, 343 U.S. 395.
Moreover, insofar as the Respondent's plans pro-
vided for an increase in the number of foremen by
reclassifying supervisors to these newly created
positions, the Company was adhering to its tradi-
tional practice. Amsler, a member of management
for over 30 years, testified that it had always been
the Company's policy to recruit its salaried supervi-
sion by promotions from within the plant.
The issue here is somewhat analogous to that in
Westinghouse Electric Corp., 150 NLRB 1574. In
that case the Board found that the employer had
not violated Section 8(a)(5) by unilaterally con-
tracting out unit work where the contracting in
question did not involve a departure from past
practices, did not effect a change in conditions of
employment, and did not impair, significantly,
tenure, security, or work opportunities for those in
the bargaining unit. See also American Oil Com-
pany, 155 NLRB 639, 655. Similarly, here the
General Counsel did not establish that the Respon-
" After Franker became a foreman , four positions in his department
were filled by transfers from other sections in the plant Where qualifica-
tions of the applicants were equal , selections were made on the basis of
seniority . This was done in filling two of the positions As to the two other
vacancies , however, the qualifications of the applicants were not equal
Franker testified that in these latter instances, the applicants of his choice
were selected.
is As a supervisor, Franker was responsible for preparing only one re-
port.
i" After Franker was reclassified to foreman , no supervisor was ap-
pointed to fill the position he had vacated
it As background evidence the General Counsel offered the testimony of
several witnesses who had been reclassified from supervisor to assistant
foreman or assistant forelady during the period from August 1965 to
November 1966. These were Evelyn Courey, Virginia Gallagher , Phyllis
Krabbenhoft , Joseph C. Lange , and Joseph Mitchell On cross-examination
all of the foregoing testified that subsequent to such reclassification, he (or
she) had authority comparable to Franker and Thomas as described above
Thus, all of the foregoing testified that after being promoted they assigned
work, issued warning notices, disciplined employees under them, and
prepared evaluation reports on probationary employees which were used
by the personnel director to determine whether to retain or to terminate
those on probation . Accordingly, it is apparent , and the Trial Examiner
finds, that, upon their reclassification to assistant foreman or forelady,
Courey, Gallagher , Krabbenhoft, Lange, and Mitchell became supervisors
within the meaning of the Act.
" IT]he size and composition of an employer's supervisory staff, in-
cluding the identity of the individuals chosen to fill supervisory jobs
must be regarded as falling within the area of management prerogative."
Kono, idem
" As noted earlier, Gallagher , Lange, and Mitchell testified that sub-
sequent to their promotion to foreman , a supervisor was appointed to fill
the place which each had vacated.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent 's promotion of Thomas and Franker resulted
in the removal of unit work which had any signifi-
cant impact on "the job tenure , employment securi-
ty or reasonably anticipated work opportunities for
those in the bargaining unit." Westinghouse Electric
Corp., supra at 1546. See also Allied Chemical
Corp., 151 NLRB 718, 719, affd . 358F.2d 234
(C. A. 4) 20
Consequently , since it has been found that the
promotions of Thomas and Franker were not a
mandatory subject of bargaining and since, in any
event , on this record , it appears that the Respon-
dent 's unilateral action in these reclassifications
was nondiscriminatory , arose solely from economic
considerations , and resulted in no significant detri-
ment to the employees in the bargaining unit, the
Trial Examiner concludes and finds that the
General Counsel has not proved by a preponde-
rance of the evidence that the Respondent 's refusal
to bargain with regard thereto constituted a viola-
tion of Section 8(a)(5) and (1) of the Act.21
CONCLUSIONS OF LAW
1. Wincharger Corporation, a subsidiary of
Zenith Radio Corporation, is engaged in com-
40 Dixie Ohio Express Company, 167 NLRB 573, cited by the General
Counsel in his brief, is distinguishable from the present situation , for that
case involved not only a reorganization of the Company's work practices,
but also the termination , without notice to the bargaining agent , of 15 em-
ployees in the unit The latter element , not being present in the instant
case , substantially differentiates the basis for the Board 's decision in Dixie
Ohio Express from the factual situation herein.
" The Respondent also contends that any duty to bargain with the Union
about the reclassification issue was discharged in 1965 when, at the
Union's request , the collective-bargaining contract was reopened for
negotiations which resulted in an amended agreement being signed in
December 1965 There is some conflict in the record as to how much the
union representatives knew at that time about the Respondent 's plans for
merce, and the Union is a labor organization, all
within the meaning of the Act.
2. The Union is, and at all times material herein
has been, the certified collective-bargaining agent
of a unit consisting of all production and main-
tenance employees, at the Respondent's plants in
Sioux City, Iowa, including all hourly paid em-
ployees, but excluding all office personnel and su-
pervisory personnel as defined in the Act.
3. The General Counsel has failed to establish by
a preponderance of the evidence that the Respon-
dent is engaging in or has engaged in unfair labor
practices within the meaning of Section 8(a)(1)
and (5) of the Act.
Pursuant to Section 10(c) of the Act, the Trial
Examiner hereby issues the following:
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and on the entire record in
this case, the Respondent's motion to dismiss the
complaint in its entirety is granted.
enlarging its staff of foremen From the testimony of Barnum , it is clear
that, at some point during the summer, Business Agent O'Connor was told
about the prospect for promotions which the Company's expansion plans
would necessitate . While on the stand , O'Connor conceded that during this
period he was aware that a number of employees had been promoted from
a bargaining unit classification to assistant foreman or foreman. On the
other hand , since it is the conclusion of the Trial Examiner that the
Respondent was under no obligation in 1967 to bargain with the Union
about the reclassification of Franker and Thomas , it is unnecessary to de-
cide whether , in any event , and in this record , the Union, through laches
during the negotiations when the contract was reopened in 1965, waived
any right to notice of the Respondent's plans to promote its supervisors