Sunoco, Inc.

National Labor Relations Board - Board Decisions

Jun 16, 2006

347 N.L.R.B. 38 (N.L.R.B. 2006)

SUNOCO, INC.
347 NLRB No. 38
421
Sunoco, Inc. (R&M) and Atlantic Independent Union.
Case 4–UC–413
June 16, 2006
DECISION ON REVIEW AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On September 7, 2005, the Regional Director for Re-
gion 4 issued a Decision and Order dismissing the Em-
ployer-Petitioner’s unit clarification petition as untimely.
Thereafter, in accordance with Section 102.67 of the Na-
tional Labor Relations Board’s Rules and Regulations,
the Employer filed a timely request for review of the
Regional Director’s decision. In its request for review,
the Employer-Petitioner (Employer) contended that the
Regional Director erred in measuring the timeliness of
the petition from the date on which the employees rati-
fied the collective-bargaining agreement, rather than us-
ing as a benchmark the date of the contract’s execution,
and that her finding that the Employer failed to file its
petition “shortly after” ratification of the contract runs
contrary to the Board’s policy of encouraging voluntary
resolution between parties. The Union filed an opposi-
tion to the request for review. The Board granted the
Employer’s request for review on December 7, 2005.
Thereafter, the Employer filed a brief on review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully considered the entire record as it per-
tains to the issue of the petition’s timeliness, as well as
the Employer’s brief on review, we find, contrary to the
Regional Director, that the Employer’s petition was
timely filed. Accordingly, we reinstate the petition and
remand this case to the Regional Director for further
consideration on the merits.
I. FACTS
The Employer is a subsidiary of Sunoco, Inc. The
Employer manufactures petroleum products and distrib-
utes these products on a retail and a wholesale basis. The
Union has, for a number of years, represented a bargain-
ing unit consisting of the “operating and clerical employ-
ees” employed at 15 of the Employer’s 25 terminals.
The unit is comprised of three different job classifica-
tions: terminal operators, drivers, and mechanics.
Prior to February 2002, the Employer’s operations
were divided into several business units, including a lo-
gistics unit. The logistics unit was responsible for main-
taining the two pipelines that transported petroleum
products from Sunoco, Inc.’s refineries to storage termi-
nals. The logistics unit also delivered the petroleum
products by truck to retail and wholesale customers.
In February 2002, Sunoco, Inc. restructured its opera-
tions by transferring its assets relating to pipeline and
terminal operations from the Employer to a newly-
created limited partnership called Sunoco Logistics Part-
ners, LP (Logistics). Sunoco, Inc. concurrently created
Sunoco Partners, LLC (Partners), another subsidiary, to
serve as a general partner of Logistics.
After the restructuring, Logistics, a publicly-traded
company, assumed responsibility for receiving petroleum
products from pipelines and monitoring such products at
terminals. The Employer retained responsibility for de-
livering the product to retail locations and homes, as well
as for maintaining the retail facilities. This corporate
restructuring enabled Logistics, as a separate entity from
the Employer, to market its services both to the Em-
ployer as well as to third parties.
Following the restructuring, bargaining unit terminal
operators were transferred from the Employer’s payroll
to that of Partners. The drivers and mechanics remained
on the Employer’s payroll. From February 2002 until the
fall of 2003, terminal operators, drivers, and mechanics
were all supervised and managed by Partners personnel.
In the fall of 2003, the Employer created a “transporta-
tion group” to manage the drivers and mechanics. From
that point on, only the terminal operators remained under
the supervision of Partners. The Employer now super-
vises the drivers and mechanics.
In October 2003, the Employer and Union met to bar-
gain over a successor to the collective-bargaining agree-
ment set to expire on March 31, 2004. Because Partners
employed the terminal operators in the bargaining unit, it
also participated in the negotiations. During an October
2003 bargaining session, the Employer and Partners pro-
posed splitting the bargaining unit into two separate
units: one consisting of drivers and mechanics employed
by the Employer, and the other consisting of terminal
operators employed by Partners. The Union rejected this
proposal.
The parties met again on January 12 or 13, 2004, as
well as on February 5, 2004.1 By February 5, the parties
had agreed on all contractual matters except for the unit
scope. On or before April 1, representatives of the Em-
ployer withdrew the proposal for separate units so as to
permit the parties to reach a contract agreement, while
expressly communicating to the Union the Employer’s
intent to file a unit clarification petition.2

1 All dates hereafter are in 2004, unless otherwise indicated.
2 The Employer maintains that the parties came to a contract agree-
ment on March 22. The Union contends that no such agreement was
reached until March 31. It is undisputed that Employer representative
Ruth Clauser sent Union President John Kerr a letter dated March 24
affirming that the Employer had withdrawn its proposal with respect to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD422
On April 22, the Union sent the agreed-upon contract,
supplied in the form of a Memorandum of Agreement, to
its membership for ratification. Accompanying the
Memorandum of Agreement was a letter informing the
membership that the Employer had withdrawn its pro-
posal for separate contracts and that the Employer
planned to take the issue to the Board.
The Union’s membership ratified the contract on May
17, and the Union informed the Employer of the ratifica-
tion around that same date. The Employer then retroac-
tively implemented the contractually agreed-upon wage
increases effective March 1.3
Subsequently, in a September 27 letter from the Em-
ployer to the Union, the Employer again expressed its
intention to file a unit clarification petition unless the
Union agreed to exclude the terminal operators from the
unit. In this letter, the Employer explained its reasons for
believing that a unit including terminal operators was not
appropriate, and invited the Union to negotiate further on
the issue. The Employer also stated that it would afford
reciprocal seniority rights between the drivers-mechanics
unit and a unit consisting of terminal operators if the Un-
ion would agree to exclude the terminal operators from
the current unit.
The Union responded in an October 7 letter, stating
that it would “vigorously contest” any effort by the Em-
ployer and Partners to change the composition of the
contractually agreed-upon unit, and that, after reviewing
the legal arguments the Employer raised in the Septem-
ber 27 letter, the Union believed that the Employer
would receive an unfavorable determination if it filed a
unit clarification petition with the Board. In concluding
its letter, the Union stated that “without prejudice to our
position regarding the impropriety of your legal theory,”
the Union is always willing to meet and discuss “issues
of mutual importance and concern.”
Negotiations between the parties with respect to the is-
sue of separate units took place in October and again in
early January 2005. The parties agreed to keep the sub-
stance of these negotiations “off the record,” but to in-
clude in this proceeding the fact that the negotiations
took place. In January 2005, the Union submitted a pro-
posal to the Employer relating to the issue of unit clarifi-

separate contracts, and that the Employer planned to file a unit clarifi-
cation petition. The Union acknowledges receiving this letter on or
around April 1.
3 The ratified contract has not yet been executed. The Union con-
tends, and the Employer does not dispute, that sometime after February
2005 the Union reviewed the finalized contract draft, signed the con-
tract, and returned it to the Employer. Although the Employer has not
signed the contract, the Employer does not contend that there is no
contract or that it does not intend to sign the contract.
cation. Attached to the Union’s January 2005 proposal
was a fax cover sheet where Kerr, the Union’s president,
had written, “sorry it took so long to get back with the
Holidays and Vacations.”
The parties’ negotiations were unsuccessful, and the
Employer filed its unit clarification petition on January
19, 2005. At the opening of the hearing, the Union ar-
gued that the Employer’s petition should be dismissed as
untimely. The Regional Director denied this motion. A
later hearing focused on the appropriateness of the unit.
At the conclusion of that hearing, the Union renewed its
motion to dismiss the petition on timeliness grounds.
The Regional Director granted this motion.
II. APPLICABLE LAW AND ANALYSIS
The Board generally dismisses unit clarification peti-
tions submitted during the term of a collective-
bargaining agreement where the contract clearly defines
the bargaining unit. Wallace-Murray Corp., 192 NLRB
1090 (1971). The Board’s rule is based on the rationale
that entertaining a unit clarification petition during the
term of a contract that clearly defines the bargaining unit
is unnecessarily disruptive of the parties’ collective-
bargaining relationship. As stated in Edison Sault Elec-
tric Co., 313 NLRB 753 (1994), “to permit clarification
during the course of a contract would mean that one of
the parties would be able to effect a change in the com-
position of the bargaining unit during the contract term
after it agreed to the unit’s definition.”
Notwithstanding this general rule, the Board recog-
nizes a limited exception in cases where parties cannot
agree on whether to include or exclude a disputed classi-
fication “but do not wish to press the issue at the expense
of reaching an agreement.” St. Francis Hospital, 282
NLRB 950 (1987).4 In such a case, the Board will proc-
ess a unit clarification petition filed “shortly after” the
contract is executed so long as the party filing the peti-
tion did not abandon its position in exchange for bargain-
ing concessions. Id. at 951.
The Board has not established specific time limits with
respect to the requirement that a unit clarification petition
be filed “shortly after” the execution of the contract. In
St. Francis Hospital, supra, 282 NLRB at 950, the Board
permitted a unit clarification petition filed 7 weeks after
contract execution. Id. In Baltimore Sun Co., 296
NLRB 1023, 1024 (1989), the Board stated that St. Fran-
cis Hospital “should not be construed as setting a precise
or outer time limit for the filing of such petitions” and

4 See also Rock-Tenn Co., 274 NLRB 772 (1985), and Batesville
Casket, 283 NLRB 795 (1987), both involving situations where the
petitioner sought to clarify an existing bargaining unit into two separate
units.
SUNOCO, INC. 423
concluded that a petition filed 11 weeks after contract
execution fell within the “shortly after” limitation. The
Board there noted a lack of evidence that the union in-
volved was disadvantaged by the employer’s delay in
filing the petition. 296 NLRB at 1024.
As an initial matter, we agree with the Regional Direc-
tor’s decision to use the date that the employees ratified
the Memorandum of Agreement as the starting point
from which to measure the timeliness of the petition.
The parties here clearly manifested the intent to be bound
by the Memorandum of Agreement the employees rati-
fied on May 17. The Employer implemented the wage
increases agreed on in the contract soon after the Union
informed the Employer that the employees had ratified
the Memorandum of Agreement, and the Employer nei-
ther asserts that it believes itself not to be bound by the
Memorandum of Agreement nor that it is refusing to sign
the Memorandum of Agreement.
We find no merit in the Employer’s contention that the
timeliness of its petition should be measured from the
date that the contract was executed (an event which has
not yet occurred). The Employer’s reliance on Baltimore
Sun for this proposition is misplaced. In that case, the
Board found the relevant time period was that between
the execution of the contract and the filing of the peti-
tion. There, however, the parties executed the contract
exactly 1 month after the contract’s ratification, and there
was no evidence of significant administrative delays in
the contract’s execution. 296 NLRB at 1024. Using the
date of contract execution in Baltimore Sun thus pro-
vided no incentive for parties to delay in signing a con-
tract. Here, in contrast, where the contract has yet to be
executed, using the date of execution would serve only to
reward the parties for creating administrative time de-
lays, as well as shift focus away from the parties’ intent
to be bound by the contract.
Notably, in Edison Sault Electric, supra, the Board
looked to the date of contract ratification—and not the
date of execution—in holding the petition to be untimely.
313 NLRB at 753. Although Edison Sault Electric relied
primarily on the employer’s failure to preserve during
bargaining its right to file a unit clarification petition, the
case nevertheless demonstrates that the date of ratifica-
tion can be used as a benchmark.5

5 We reject, however, the Regional Director’s alternative finding that
the relevant time period could be marked from the date on which the
parties reached a full agreement on a contract. First, the parties dispute
the exact date on which the Employer withdrew its proposal to split the
unit and, consequently, the date by which the parties reached agreement
on all other contractual issues. Second, and even more importantly, the
contract’s provisions did not take effect until the employees ratified the
agreement. For that reason, it was not reasonable to require the Em-
Turning to the issue of timeliness, and evaluating time-
liness from the date of ratification, we find merit in the
Employer’s argument that its petition is timely.
Here, the Employer sent a letter on September 27 con-
taining a bargaining proposal. The Union responded
with a letter on October 7 affirming its openness to nego-
tiating. In these circumstances, the period for measuring
the timeliness of the petition was tolled by the parties’
decision to engage in further negotiations, and did not
resume until January 2005 when those negotiations
proved unsuccessful (after which the petition was
promptly filed). We find that, in the context of this case,
the gap between contract ratification and the start of ne-
gotiations was not so long as to go beyond the Board’s
“shortly after” requirement and render the petition un-
timely.6
Although the time period involved here is longer than
those that barred the petitions in Baltimore Sun and St.
Francis Hospital, the Board in Baltimore Sun explicitly
stated that St. Francis Hospital should not be construed
as setting any sort of outer limit concerning the timeli-
ness of unit clarification petitions. Baltimore Sun, 296
NLRB at 1024. Further, finding this petition timely ad-
vances the Board’s policy of promoting voluntary resolu-
tion of disputes and encouraging parties to avoid litiga-
tion. Indeed, following the time gap, the parties engaged
in several months of bargaining aimed at resolving the
issue of unit composition. Such negotiations should be
promoted and not discouraged.
We recognize, as argued by the Union, that the time
lapses between the ratification vote and the filing of a
unit clarification petition may have had some disruptive
effect on the parties’ collective-bargaining relationship,
and may have created some uncertainty about the status
of an agreement. However, as noted, during the period
from October to January, 2005, the parties were negotiat-
ing in an effort to resolve the matter without litigation.
Concededly, the Employer did not seek those negotia-
tions until September 27. The negotiations occurred in
the context of the parties’ understanding that the Em-
ployer intended to file a UC petition. In essence, by
agreeing to discuss the matter, the parties hoped to reach
agreement and thereby avoid the necessity for a filing of
a UC petition. The parties then engaged in several
months of bargaining. After those discussions collapsed,

ployer to file its petition before ascertaining whether the contract that is
the subject of the unit scope dispute would even come into being.
6 Although the Employer maintains that the parties continued to have
discussions and exchange correspondence and proposals from March
2004 through January 2005, the record contains no evidence of any
negotiations taking place between the May 17 ratification and the Em-
ployer’s September 27 letter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD424
the Employer promptly filed the petition. We believe a
finding that the petition is timely in this case furthers the
Board’s policy of encouraging voluntary negotiations.
Having evaluated all of the circumstances of this case,
and carefully balancing the countervailing concerns, we
find that the time span is not so long a period as to sup-
port the Regional Director’s finding that the petition was
untimely filed. Nor is this time gap meaningfully distin-
guishable from the delays that the Board found accept-
able in Baltimore Sun, supra, 296 NLRB at 1023, and St.
Francis Hospital, supra, 282 NLRB at 950.
We emphasize that our discussion is limited to the
question that is currently before the Board on review:
whether the unit clarification petition was timely filed.
We do not pass on the Employer’s contention that the
Board should grant the petition on the ground that, absent
unit clarification, the Employer would be required to
bargain with an inappropriate, multiemployer unit.
Oakwood Care Center, 343 NLRB 659 (2004). Nor do
we reach the issue of whether the Employer’s restructur-
ing resulted in significant organizational changes that
offset the community of interest previously existing
among the terminal operators, drivers, and mechanics.
See Rock-Tenn, supra, 274 NLRB at 772; Batesville Cas-
ket, supra, 283 NLRB at 795. These are issues for the
Regional Director to address in the first instance.
Accordingly, the Regional Director’s Decision and
Order is reversed, the petition is reinstated, and the case
is remanded to the Regional Director for further appro-
priate action.
ORDER
IT IS ORDERED that the petition be reinstated, and that
this matter be remanded to the Regional Director for fur-
ther appropriate action.