TESORO REFINING AND MARKETING CO.

National Labor Relations Board - Administrative Judge Opinions

Feb 7, 2012

18-CA-019615 (N.L.R.B. Feb. 7, 2012)

JD–07–12
Mandan, North Dakota
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
TESORO REFINING AND MARKETING CO. 1
and Cases 18–CA–19615
18–CA–19644
UNITED STEEL, PAPER AND FORESTRY, RUBBER,
MANUFACTURING, ENERGY, ALLIED INDUSTRIAL
AND SERVICE WORKERS INTERNATIONAL UNION, LOCAL 102
David Biggar and Abby Schneider, Esqs.
for the General Counsel.
Bruce Fickman and Mariana Padias, Esqs. (United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Allied Industrial and
Service Workers International Union) of Pittsburgh, Pennsylvania
for the Charging Party.
William Dritsas and Joshua Ditelberg, Esqs, (Seyfarth Shaw, LLP)
of San Francisco, California for the Respondent.
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was tried in Mandan, North
Dakota on November 15–16, 2011. The United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 10 (the
Union or Local 10) filed the charge in 18–CA–19615 on November 23, 2010, and on January 3,
2011, filed a charge in 18–CA–19644. Both charges indicate that Local 10 is affiliated with the
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service
Workers International Union (the International Union).The Acting General Counsel issued an
order consolidating cases, consolidated complaint and notice of hearing (the complaint) on
October 4, 2011.

1 The collective-bargaining agreement in effect at the time of the hearing (GC Exh. 8) indicates that
the name of the Respondent is Tesoro Refining and Marketing Co. and I have amended the case caption
accordingly.
2 Because United Steel, Paper, and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and
Service Workers International Union, Local 10 is the Charging Party, I have amended the case caption to
reflect that fact.
JD–07–12
2
The complaint alleges that since about August 5, 2010, the Respondent has refused to
bargain with the Union regarding the Respondent's announced intention to implement certain
changes in unit employee benefits, including the thrift 401(k), pension, medical, educational
assistance and group life insurance plans, and retiree medical, dental and life insurance plans for
current unit employees in violation of Section 8(a) (5) and (1) of the Act. The complaint further 5
alleges that on or about January 1, 2011, the Respondent unilaterally implemented new employee
benefits in the subjects set forth above.
The Respondent's answer denied the material allegations in the complaint. On the entire
record,3 including my observation of the demeanor of the witnesses, and after considering the 10
briefs filed by the Acting General Counsel, the Charging Party, and the Respondent, I make the
following
Findings of Fact
15
I. JURISDICTION
The Respondent, a corporation, is engaged in the refining of petroleum products at its
facility in Mandan, North Dakota, where it annually sells products valued in excess of $50,000
which were shipped to locations outside the state of North Dakota. The Respondent admits, and I 20
find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the
Act.
25

3 At the hearing, the Acting General Counsel moved to consolidate the instant case with the
consolidated complaint that had issued against the Respondent on November 10, 2011, in Cases 21–CA–
39591 and 21–CA–39647 alleging that the Respondent had unilaterally implemented benefit changes in
its Southern California bargaining unit in violation of Section 8(a) (5) and (1) of the Act. The Acting
General Counsel argued that the cases involve the same parties and arose from a dispute over the
Respondent's alleged unilateral changes to its national benefit plans and thus should be consolidated for
trial for reasons of administrative and judicial economy and to avoid the possibility of inconsistent results.
The Charging Party joined in the Acting General Counsel's motion. The Respondent opposed the motion
arguing that the circumstances surrounding the individual cases were sufficiently distinct so that
consolidation is not appropriate.
I denied the motion to consolidate at the hearing. In reaching my decision, I applied the test set forth
by the Board in Service Employees Local 87 (Cressleigh Management) 324 NLRB 774 (1997), which
indicates that an administrative law judge has discretion to determine whether consolidation is warranted,
considering such matters as whether issues in the first case would have to be relitigated and the likelihood
of delay if consolidation was granted. Applying these factors, I determined that consolidation is not
warranted. I noted that the complaint had just issued in Case 21–CA–39591 et al. and that the decision in
the instant case would be substantially delayed by the time it would take to litigate the issues in that case.
The cases were filed by different local unions and each complaint alleges a separate appropriate unit.
While there may be some common issues, I determined there are sufficient differences so that it is more
appropriate to litigate the instant case and issue a timely decision rather than incur the substantial delay
that would inevitably result from consolidation.
JD–07–12
3
II. ALLEGED UNFAIR LABOR PRACTICES
Background
The Respondent operates several petroleum refineries throughout the United States, 5
including the facility at issue in Mandan, North Dakota. The Respondent is a party to a
collective-bargaining agreement with Local 10 that was effective by its terms from February 1,
2009 through January 31, 2012. (GC Exh. 8) This agreement applies to the following appropriate
contractual unit:
10
All operating and maintenance employees employed by the refining &
engineering department of Tesoro Refining and Marketing Co. at its Mandan,
North Dakota refinery excluding all clerical, confidential and professional
employees, watchmen and guards, employees of the Tesoro pipeline and
supervisors, as defined in the Act.15
There are approximately 150 unit employees. The Mandan facility also employs
approximately 80 to 100 unrepresented employees. Leif Peterson was the human resources
director at the Mandan facility from April 1989 until May 2011. From May 2011, until his
retirement on July 11, 2011, Peterson worked at the Respondent's corporate headquarters in San 20
Antonio, Texas. Javier Montoya has been the president of Local 10 for approximately 2 years.
Prior that he was vice president of Local 10 for approximately 10 years. He is employed at the
Mandan facility as a process operator and has worked there for approximately 20 years.
The Respondent's Mandan facility has been owned by several entities since it was built 25
by the Standard Oil Co. in the early 1950s and has had a long history of collective bargaining.
The first collective-bargaining agreement at the facility was entered into in 1955 between
Standard Oil and the International Union of Operating Engineers, AFL, Local 725. At a time that
is not indicated in the record the Mandan facility was transferred from Standard Oil to the
Amoco Oil Co. and the Oil, Chemical & Atomic Workers International Union, Local 6-1030
(OCAW, Local 6-10) became the representative of the employees at the facility. According to
Peterson, from 1989 to 1999 the Mandan facility was owned by Amoco. OCAW, Local 6-10 and
Amoco were parties to a collective-bargaining agreement from February 1, 1996 through January
31, 1999. (GC Exh. 3). On November 19, 1997, Amoco and OCAW, Local 6-10 entered into a
contract extension through January 2, 2002. At the same time the parties also executed a letter of 35
understanding regarding successorship (GC Exh. 4). Pursuant to the terms of the successorship
agreement, Amoco agreed that it would include in any sales agreement regarding the facility the
requirement that the successor employer recognize the union and adopt the collective-bargaining
agreement. The successorship agreement further indicated that while a successor would not be
required to continue the existing employee benefits, it would be required to establish "reasonably 40
comparable Benefit Plans in the aggregate". In approximately 1998, Amoco merged with British
Petroleum to form BP and that entity operated the facility until 2001. In approximately 1999
OCAW merged with the Paper, Allied, Industrial Chemical Energy Workers International Union
(PACE).
45
In 2001 the Respondent purchased the Mandan facility from BP. The Respondent and
PACE, Local 7-10 entered into a collective-bargaining agreement effective from February 1,
JD–07–12
4
2002, through January 31, 2006 (GC Exh. 3). Article 12 of the agreement is entitled "Benefits
Plans" and provides that "Benefit Plans of the Company . . . . shall not in any instance be or
become a part of this agreement." Thereafter, the Respondent and PACE, Local 7-10, bargained
regarding the benefits of the employees in the Mandan unit. On August 28, 2003, the Respondent
and PACE, Local 7-10 executed a "Memorandum of Agreement-Benefits" (MOA) reflecting the 5
parties’ agreement regarding the benefits of unit employees (GC Exh. 5). The MOA states that
the agreement "does not alter the rights and obligations both Tesoro and PACE have under the
Parties’ Collective Bargaining Agreement and the Benefit Plans referred to herein." The 2003
MOA was signed for the Respondent by Peterson and the then president of Local 10 and
Montoya, who was then the vice president of Local 10. Historically, the Mandan facility had 10
always been subject to an employer's national employee benefit plans and this agreement did not
change that practice. Thus, the unit employees at the Mandan facility were covered by the
Respondent's national benefit plans.
On May 23–24, 2005, representatives of the Respondent, including Earl Borths, the 15
Respondent's director of labor relations, met with various union representatives from the
Respondent's facilities to inform them of upcoming benefit changes. According to Borths’
uncontradicted testimony, he told the union representatives that the benefit changes were
companywide and would affect all of the employees. Borths testified that he stated that the
Respondent had the right to make such changes under the plans but that "we also respect the 20
labor agreements and we will follow any contractual language that we have to implement these
changes." (Tr. 234–235). According to Borths, Montoya, who at the time was the president of the
Tesoro council, stated that he understood the Respondent could make such changes and while the
Union did not agree with all of them, the Union appreciated the advance notice. The changes
were implemented without a challenge from the Union.25
In 2005 PACE merged with the United Steelworkers of America. On May 5, 2005, the
Respondent and the United Steelworkers Local 10 entered into an agreement extending the 2002
to 2006 collective-bargaining agreement through January 31, 2009. (GC Exh. 7). Thereafter, as
noted above, the parties entered into the collective-bargaining agreement which was effective by 30
its terms through January 31, 2012.
The record establishes that historically negotiations in the petroleum industry are
somewhat complex and involve an amalgam of national and local level negotiations. At the
national level the International Union will bargain with the lead employer (formerly this was 35
often Amoco but at present it is typically Shell Oil Co.) and come to an agreement on terms and
conditions of employment that will be applicable to petroleum refineries nationwide. The next
step is that the national agreement is then taken by the various employers, including the
Respondent, to the local level where bargaining occurs over issues that are specific to the
individual facility. While the Respondent and Local 10 do not substantively bargain over the 40
national issues, they must agree to them and also reach agreement on local issues in order to
finalize a contract. An agreement reached at the local level cannot conflict with the terms of the
national agreement. As noted above, the agreement at the Mandan facility indicates it is between
Local 10 and the Respondent. The Mandan facility has always been subject to the Respondent’s
national employee benefit plans and has never had a benefit plan that applied only to the 45
employees at that facility.
JD–07–12
5
The Changes to the Benefit Plans
On July 26, 2010, Peterson called Montoya and informed him that the Respondent would
be making changes to the benefit plans of the employees at the Mandan facility. On July 28,
2010, the Respondent's CEO, Greg Goff, sent an email to the employees at all of the 5
Respondent’s facilities, including the Mandan facility, indicating that the Respondent had
developed a plan to meet budgetary goals which would include changes to the existing 401(k)
thrift plan and pension, medical, and group life insurance plans (GC Exh. 9). The email indicated
the plan changes were to become effective on January 1, 2011. The email also stated that
"[b]enefit changes for union represented employees will be made in accordance with the Plan 10
documents and provisions of the applicable collective bargaining agreement."
On July 29, Peterson met with the union committee and gave Montoya a letter (GC Exh.
10) indicating that the Respondent intended to implement certain changes to employee benefits
and included a summary of the proposed changes.4 The letter indicated "if you wish to discuss 15
this matter, please contact me no later than August 11, 2010 in order to set a mutually agreeable
date for a meeting." Montoya told Peterson that the Respondent needed to negotiate these benefit
changes with the Union. Peterson replied that the Respondent was under no obligation to
negotiate regarding this matter in accordance with article 12 of the contract.
20
On August 5, 2010, Kent Morrell, the Union's recording secretary, sent a letter to
Peterson (GC Exh. 11) indicating the following:
The Union is in receipt of your letter dated July 28 in which the company outlines
changes it intends to make to United Steelworker represented employees benefits. 25
As the exclusive representative of these employees the Union is making a demand
to bargain any such changes.

4 The changes were listed as follows:
1. Transition the current Tesoro Retirement Plan to a "Cash Balance" Plans for service or an after
2010. Change vesting service requirement from 5 years to 3 years.
2. Thrift Plan 401(k)-Limit the maximum dollar-for-dollar match to 6% of eligible pay. Exclude
bonus and overtime (other than included in base pay) from eligible matching pay.
3. Eliminate the medical waive credit.
4. Decouple VSP vision from medical benefit participation. VSP vision benefit will be made
available as a "stand alone" benefit with an 80/20 premium cost split.
5. Eliminate the employee portion of the life insurance contribution for group life-benefit to be
paid one hundred percent by the Company.
6. Implement "Earn As-You-Go." vacation.
7. Reduce life insurance coverage for employees retiring prior to December 31, 2010, or earlier to
$10,000. Coverage will be eliminated, effective January 1, 2016.
8. Eliminate life insurance as a benefit option for those who retire after January 1, 2011.
9. Underwrite post-retirement medical premiums based on "retiree only" experience.
10. Eliminate post-retirement dental insurance January 1, 2011.
11 Eliminate post-65 medical insurance as of January 1, 2014.
JD–07–12
6
I am sending this letter on behalf of United Steelworker represented employees at
the Tesoro Mandan Refinery bargaining units.
The Union will also be sending the company a written request for additional
information regarding the proposed benefit changes. We would like to schedule 5
meetings following the submittal of our information request.
At a union-management meeting held on August 11, 2010, the Respondent
acknowledged that it received the Union's August 5 letter demanding bargaining over the benefit
plan changes.510
On August 18, 2010, Peterson gave Montoya a letter (GC Exh. 12) in which the
Respondent again acknowledged receipt of the Union's August 5 letter. Peterson's letter also
indicated:
15
The Company’s planned benefit changes are consistent with its rights under the
Plans to make such changes, as is contemplated by our collective-
bargaining agreement.
Accordingly, while fully reserving and without prejudice to our contractual rights 20
to undertake its planned changes, the Company is willing to discuss the benefit
changes at a mutually convenient time. I will contact you to set up a meeting for
that purpose.
On August 20, 2010, the Union submitted an information request to the Respondent 25
seeking a substantial amount of information regarding the comparative costs of the existing plans
and the Respondent's proposed changes. In its request the Union indicated it was seeking such
information in order to have sufficient information to bargain on behalf of its members and
requested that the information be submitted by October 1, 2010 (GC Exh. 14). On September 9,
2010, the Union submitted a second request for information asking for copies of the full plan 30
descriptions for both the current and proposed plans (GC Exh. 15). This letter also asked the
information to be submitted by October 1, 2010.
On September 1, 2010, Peterson and other Respondent representatives met with the union
committee and showed them a power point presentation that the Respondent planned to show to 35
employees later that day regarding the proposed benefit changes. (GC Exh. 13)6 Montoya again
told Peterson that the Respondent needed to negotiate the benefit changes with the Union.
Peterson replied by again indicating that the Respondent was going to apply the provisions of
article 12 of the contract (Tr. 48–49).7 Later that day the Respondent representatives showed the

5 Each month the Respondent and the Union have what they refer to as a "union-management"
meeting to discuss a variety of matters relating to unit employees.
6 Although the power point presentation itself is dated August 10, 2010, the Union's minutes of the
December 13, 2010 union-management meeting (GC Exh. 20) establish this meeting was held at the
Mandan facility on September 1, 2010.
7 I credit Montoya's uncontroverted testimony on this point as I found him to be a credible witness in
all respects.
JD–07–12
7
power point presentation at a "town hall" meeting open to both the represented and
unrepresented employees at the Mandan facility. 8
While, on their face, some of the Respondents proposed changes would be beneficial to
employees, several others clearly would not be beneficial. In this connection, the power point 5
presentation indicated that the changes would mean a "Greater Shared Responsibility for
Benefits" by employees (GC Exh. 13, at p. 23). The power point presentation also indicated that
the "reduced pension/401(k) benefits" meant that "[m]ore personal savings are necessary" and
that "Employees will be required to cover more expenses" with regard to health insurance.
10
On September 28, 2010, the Respondent informed the Union at a union-management
meeting that the Respondent would not implement the proposed change in vacation policy (R.
Exh. 19). According to Peterson’s uncontroverted testimony, at the meeting held with the union
committee on September 1, prior to the town hall meeting, the Union had objected to the change
in vacation policy. That Respondent's representatives reported this objection to the Respondent's 15
headquarters in San Antonio and a decision was made to delay the change in vacation policy
until the following year (Tr. 122).
On September 30, the Respondent provided the summary plan descriptions of employee
benefits to the Union pursuant to its information request. These documents total approximately 20
1100 pages.9 When Montoya received the documents he submitted them to the International
Union's benefit expert, Deborah Edwards, for her review. Edwards was assisting Local 10 in this
matter.
On October 22, 2010, Local 10 Vice President Marcus Vogel sent an email to Peterson 25
(GC Exh. 16) indicating the following:
In response to your letter dated August 18, 2010 to USW Local 10, we are not
asking to discuss the changes in the benefit plan we are asking to bargain over
these issues. If Management is in fact refusing our demand to bargain, we 30
are asking on what basis this refusal is based on.
On the October 26, 2010 Peterson replied by email indicating:
35
Management is prepared to meet and discuss benefit plan changes with the Union
at mutually agreeable times and locations.
On December 6, Morrell sent an email to Peterson (GC Exh. 17) which stated:
40

8 The Union instructed unit employees not to attend the town hall meeting and few, if any, did so.
9 Each of the plans contains reservation of rights language. For example, the Respondent’s retirement
plan indicates at page 34 of an 83 page document the following "Tesoro expects and intends to continue
the employee benefits described in this SPD indefinitely, but reserves the right to amend or discontinue
any or all parts at any time." (R. Exh. 16, GC Exh. 24).
JD–07–12
8
The Union is asking for confirmation of the company stand on negotiating the
benefits changes. You gave Javier and I letter, and you also emailed saying the
company was willing to "discuss" the benefits changes, but is not willing to
negotiate with the Union. Is this correct? We would like to clarify and confirm
where the Company stands with us right now.5
Peterson responded by email the same day indicating:
In response to your question and to clarify my email of October 22 to Marcus
Vogel. The Company is following and prepared to follow Article 12 of the 10
Agreement, including the procedures of Article 2, Sections 1-7 referenced therein.
At a union management meeting held on December 13, 2010, after reviewing a timeline
of events regarding the benefit changes, Peterson read a statement indicating "We are willing to
consider any proposals the Union offers." (GC Exh. 20). The Union asked the Respondent to put 15
its position in writing and the Respondent's representatives indicated they would consider the
Union's request.
On December 15, 2010, Montoya sent Peterson a letter (GC Exh. 21) indicating:
20
This letter is in response to your comments to the union on December 13 that the
company is willing to consider any proposals the union offers on the company’s
announced benefit changes. When will the company provide the union with a
response to the union's pending information request on the announced benefit
changes? The union needs this information in order to bargain intelligently on 25
these issues. Following a review of the company's response to our pending
information request, we will provide the company with our proposed dates for
bargaining over the company’s announced benefit changes.
On the same date, Peterson replied by a letter (GC Exh. 22) indicating:30
Without waiving or compromising the Company’s rights under the Collective
Bargaining Agreement, as we said in our December 13 meeting, the
Company’s willing to consider any proposal regarding benefits the Union may
decide to make.35
On December 14 both the Union and Company signed Confidentiality
Agreement regarding cost analysis and cost projection data regarding the benefit
changes.
40
On December 15, 2010 you presented me with a letter asking when the Company
will provide the Union with a response to the information request covered by the
Confidentially Agreement we signed yesterday, December 14.10

10 The parties had been negotiating the terms of a confidentiality agreement regarding the Union's
information request regarding cost data since some time in October 2010. (R. Exh.23)
JD–07–12
9
Javier, please find attached the cost analysis and cost projection data covered by
the agreement we signed yesterday.
After receiving the cost information from the Respondent on December 15, the Union
sent the information to Edwards. During the pay period beginning on December 19, 2010, and 5
ending on January 1, 2011, the Respondent implemented the proposed change in the 401(k) thrift
plan by reducing its matching contribution from 7 percent to 6 percent. (GC Exh. 23; Tr. 66.)
The remaining proposed changes to the plans were implemented on January 1, 2011.
Analysis10
The employee benefits that the Respondent indicated it would be changing in Goff’s July
28, 2010 email and Peterson’s July 29, 2010 letter to the Union constitute mandatory subjects of
bargaining within the meaning of Section 8(d) of the Act. Specifically, the health insurance of
current bargaining unit employees is a mandatory subject of bargaining. NLRB v. Katz, 369 U.S. 15
736, 746 (1962); E. I. Du Pont De Nemours, Louisville Works, 355 NLRB 1098 (2010); Amoco
Chemical Co., 328 NLRB 1220 (1999), enf. denied 217 F.3d 869 (2000). The retirement benefits
of current employees constitute a mandatory subject of bargaining. Chemical Workers v.
Pittsburgh Plate Glass Co., 404 U.S. 157, 180 (1971) Amoco Chemical Co., supra at 221, fn. 3.
Finally, 401(k) plans, Convergence Communications, 339 NLRB 408, 412 (2003); life insurance, 20
Borden, Inc., 196 NLRB 1170, 1174–1175 (1972); and paid vacations, Jimmy-Richard Co. Inc.,
210 NLRB 802, 808 (1974), enfd. 527 F. 2d 803 (D.C. Cir. 1975) have also been held to be
mandatory subjects of bargaining.
The fact that the Respondent's past practice is to provide uniform employee benefits for 25
all of its employees on a companywide basis does not negate its obligation to bargain, on request,
on a unit by unit basis regarding those employees, such as those at its Mandan facility, who are
represented by a labor organization. Larry Geweke Ford, 344 NLRB 628, fn. 1 (2005); Mid-
Continent Concrete, 336 NLRB 258, 259 (2001), enfd. 308 F. 3d 859 (8th Cir. 2002).
30
It is well settled that an employer violates Section 8(a) (5) and (1) of the Act when it
unilaterally institutes a change to a mandatory subject of bargaining prior to reaching a lawful
impasse with the bargaining representative. NLRB v. Katz, supra at 743; Litton Financial
Printing Division v. NLRB, 501 U.S. 190, 198 (1991); Mid-Continent Concrete, supra. In the
instant case, the evidence is clear that the Respondent unilaterally implemented its planned 35
changes to employee benefit programs on or about January 1, 2011. The Respondent has raised
several defenses to the claim of the Acting General Counsel that such conduct violated Section
8(a)(5) and (1) of the Act, which will be addressed here.
Whether the Parties’ Agreements and Bargaining History Establishes a Waiver of the Union's 40
Right to Bargain Over the Changes
The primary contention of the Respondent is that the parties’ agreements (the collective
bargaining agreement and the 2003 MOA) and the bargaining history at the Mandan facility
establish that the Union waived its right to bargain over the plan changes that were implemented. 45
In Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983), the Court expressly reaffirmed the
Board's long-standing policy that a waiver of a statutory right must be clear and unmistakable. In
JD–07–12
10
Provena St. Joseph Medical Center, 350 NLRB 808 (2007), the Board indicated its adherence to
that standard. The Board has noted that "Waivers can occur in any of three ways: by express
provision in the collective bargaining agreement, by the conduct of the parties (including past
practices, bargaining history, and action or inaction), or by a combination of the two." American
Diamond Tool, Inc., 306 NLRB 570 (1992) quoting Chesapeake & Potomac Telephone Co. v, 5
NLRB, 687 F.2d 633, 636 (2d Cir. 1982).
In its brief, the Respondent first contends that the parties’ collective-bargaining
agreement gives the Respondent the right to make unilateral benefit changes. The contract in
effect between the parties when the Respondent implemented the benefit plan changes explicitly 10
provides in article 12 that the "Benefit Plans of the Company. …. shall not in any instance be or
become part of this Agreement." Article 12 further provides that issues pertaining to said plans
may be processed through the grievance procedure in article 2 of the contract but are not subject
to arbitration. Thus, since the plans are specifically excluded from the collective-bargaining
agreement there is clearly nothing in the collective-bargaining agreement, including the 15
reservation of rights language included in the summary plan descriptions of the benefit plans, 11
that serves as a waiver of the Union's right to bargain over the changes in plan benefits. The
Respondent also suggests that the fact that the Union did not file a grievance over the planned
implementation of the changes in benefits supports its waiver defense. Certainly the fact that the
Union did not file a grievance under article 2 of the contract is of no consequence since the 20
Union demanded bargaining over the benefit plan changes on several occasions. The Respondent
cannot dictate to the Union the manner in which it should challenge its planned benefit changes
if the Union wishes to do so. I note, in this connection, the Board has held that an employer
cannot dictate the manner in which a union requests bargaining over planned changes in a
mandatory subject of bargaining. Bell Atlantic Corp., 332 NLRB 1592, 1595 (2000). Moreover, I 25
note in passing that the Union's conduct is, in fact, consistent with article 2, section 5 which
provides that if the Union desires to bargain over a matter which involves the interests of
employees in more than one division, it shall bargain concerning said matter with the "refinery
manager or their designee." The Union made four requests to bargain to Peterson after being
informed of the planned benefit changes.30
In further support of its waiver argument, the Respondent also relies on the reservation of
rights language contained in the various benefit plans as it applies to the parties’ 2003 MOA
regarding employee benefits. The Respondent contends that the language of the 2003 MOA
indicating that the agreement "does not alter the rights and obligations both Tesoro and PACE 35
have under the Parties Collective Bargaining agreement and the Benefit Plans referred to herein."
is a contractual waiver of the Union's right to demand bargaining over the benefit changes that
the Respondent announced in July 2010. The Respondent also points to Montoya’s statements at
the May 2005 meeting regarding corporate wide benefit changes as supporting its position on
waiver. As noted above, at that meeting Montoya stated that while he understood that the 40
Respondent could make such changes, the Union did not agree with all of them.

11 As I have noted above, the summary plan descriptions of the various employee benefit plans
include the following or similar language "Tesoro expects and intends to continue the employee benefits
described in this SPD indefinitely, but reserves the right to amend or discontinue any and all parts at any
time."
JD–07–12
11
In assessing the Respondent's arguments, I have carefully considered the Board's decision
in Amoco Chemical Co. 328 N.L.R.B. 1220 (1999) enf. denied 217 F. 3d 869 (D.C. Cir. 2000),
which involved an employer in the petroleum industry that unilaterally implemented changes to
its medical benefit plans. There are substantial similarities between the Amoco case and the
instant case. In that case the employer asserted its actions were privileged by reservation of rights 5
language contained in the summary plan description of the Amoco Medical Plan (AMP). The
Board noted that the summary plan description was not collectively bargained and that the four
local contracts involved did not specifically incorporate the medical plan documents in the
collective-bargaining agreements. There was no evidence that the parties had ever bargained
about the reservation of rights language at the local or national level and there was only "scant 10
evidence" that union officials were aware of the language. The Board noted that anecdotal
evidence regarding two conversations between local management and union representatives fell
short of establishing that the union had fully discussed and consciously explored the issue of
waiving its right to bargain about changes in medical benefits. Id. at 1222, fn.6. In considering
the evidence the Board noted that "waivers of statutory rights are not to be "lightly inferred." Id. 15
at 1221 citing Georgia Power Co., 325 NLRB 420 (1998), enfd. mem (176 F.3d 494 (11th Cir.
1999). [E]ither the contract language relied on must be specific or the employer must show that
the issue was fully discussed and consciously explored and that the union consciously yielded or
clearly and unmistakably waived its interest in the matter." Id. at 420–421. In Amoco the
Board found that the evidence did not support the claim that the Union had clearly and 20
unmistakably waived its right to bargain over the changes and therefore found that the employer
violated Section 8(a)(5) and (1) of the Act. In so finding, the Board distinguished its decision in
Mary Thompson Hospital, 296 NLRB 1245 (1989). In that case, the Board found that the
employer did not violate Section 8(a)(5) and (1) of the Act when it made unilateral changes in its
benefit plan where the collective bargaining agreement specifically incorporated the entire 25
benefit plan, including the reservation of rights language, into the contract.
In the instant case, there is no specific language in the 2003 MOA itself regarding the
Respondent’s right to change the plans unilaterally. The MOA only states that it does not alter
any rights and obligations the parties have under their collective-bargaining agreement and the 30
benefit plans that are referred to by that agreement. The summary plan descriptions of the
Respondent’s benefit plans range from approximately 15 to 145 pages and the reservation of
rights language is contained in various places in the individual agreements. As I have noted
above, the summary plan descriptions are not collectively bargained documents. The reference in
the MOA to the parties maintaining their rights under the collective-bargaining agreement and 35
the benefit plans does not establish that, by executing the MOA, the Union clearly and
unmistakably waived its right to bargain over future changes in the benefit plans. There is no
evidence that the parties ever discussed the reservation of rights language contained in the
benefit plans during the negotiations for the 2003 MOA. There is not even any evidence that
union officials were aware of that language at the time.40
Montoya's May 2005 statement that he understood the Respondent could make changes
to the benefit plans does not establish that the Union had fully discussed and consciously yielded
its right to bargain over changes in benefit plans in the future. In this connection, the record does
not establish the basis for Montoya's statement or the specific nature of the changes made by the 45
Respondent. I find that a single statement by one union representative in 2005 does not constitute
JD–07–12
12
a clear and unmistakable waiver of the important statutory right of the Union to bargain over the
instant changes to employee benefit plans.
Applying the principles expressed in Amoco Chemical Co12. supra and Georgia Power
Co. supra, I find that the record does not support a finding that the parties’ collective-bargaining 5
agreement, the 2003 MOA or Montoya's 2005 statement establishes that the Union waived its
statutory right to bargain over any planned changes to employee benefits. The reservation of
rights language is contained only in the summary plan description of various benefit plans which
are nonnegotiated documents. The collective-bargaining agreement explicitly excludes the
benefit plans from the agreement. The oblique reference in the MOA to the retention of rights 10
under the benefit plans is insufficient to find that the reservation of rights language contained in
the benefit plans establishes that the Union clearly and unmistakably waived its right to bargain
in the future over the mandatory subject of employee benefits.
The Respondent further argues that the bargaining history between the parties establishes 15
that the Union has waived its right to now demand bargaining over the changes to the employee
benefits. The Respondent also notes that in the 2009 negotiations between the parties, the
International Union unsuccessfully proposed that "The company will provide fully paid medical,
dental and vision coverage with no reduction in the benefits for the term of the agreement." (R.
Exh. 12, paragraph 4.) The Respondent argues that the International Union’s unachieved demand 20
establishes that there is no restriction on the Respondent’s right to make such revisions.
During negotiations in 1991 for a successor agreement with Amoco, OCAW, Local 610
proposed deleting article 12 of the then existing contract which excluded changes in benefit plans
from being subject to arbitration (R. Exh. 50)13. The Union was unsuccessful in securing 25
Amoco's agreement to its proposal. Also, during these negotiations the Union was unsuccessful
in obtaining agreement with its proposal that there would be no reduction of health care benefits
during the term of any agreement that was reached. On November 20, 2001, at a negotiating
session between the Respondent and PACE, Local 7-10, the union proposed deleting the
language from article 12 which excluded grievances over benefit plans from arbitration (R. Exh. 30
40). When the Respondent did not agree to its proposal, the union then proposed deleting the
language that excluded benefit plans from being part of the collective-bargaining agreement. The
revised union proposal kept the existing contract language that permitted grievances to be filed
over changes to benefit plans and continued the exclusion of such grievances from arbitration.
(R. Exh. 13). The union was also unable to achieve this revision to the collective-bargaining 35
agreement.

12 While Amoco Chemical Corp. was not enforced in BP Amoco Corp. v. NLRB, 217 F.3d 869 (D.C.
Cir. 2000), I am bound to apply Board precedent unless and until it is reversed by the Supreme Court.
Waco Inc., 273 NLRB 746, 749 fn. 14 (1984); Iowa Beef Packers, 144 NLRB 615, 616 (1963), enfd. in
part 331 F. 2d 176 (8th. Cir. 1964). I note, moreover, that in Provena Hospital, 330 NLRB 808 (2007) the
Board indicated its adherence to the clear and unmistakable waiver standard, explaining in detail why it
did not agree with the "contract coverage" approach enunciated by the D.C. Cir. in NLRB v. Postal
Service, 8 F.3d 832 (D.C. Cir. 1994) and applied by the court in BP Amoco Corp., supra.
13 The language of article 12 remains unchanged to the present time.
JD–07–12
13
During the negotiations for the 2009–2012 agreement the International Union proposed at
the national bargaining that the employers, including the Respondent, provide fully paid medical
benefits and that there be no reduction in benefits during the term of the agreement (R. Exh. 12).
The Union was unable to secure such language in the collective-bargaining agreement.
5
The Respondent contends that this bargaining history is consistent with the parties
understanding that the Respondent may unilaterally make benefit changes. The Respondent also
argues that the Union has failed to achieve from bargaining limitations on the Respondent’s
unilateral right to make changes in benefit plans and is attempting to secure such a limitation
through this case and that such an attempt is contrary to Board policy. In support of this 10
argument, the Respondent relies on Ace Beverage Distribution Co., 253 NLRB 951, 952 (1980).
In Ace Beverage, the Board found that the employer did not violate Section 8(a)(3) and (1) of the
Act by denying certain reinstated strikers pro rata vacation for the time worked prior to the
strike, since these employees were not entitled to such a benefit under the terms of the collective-
bargaining agreement. The vacation benefit provision of the contract required employees to work 15
45 weeks a year in order to earn any vacation benefits. Because of the strike, the reinstated
strikers did not work the 45 weeks necessary to obtain this benefit. The contract expressly
limited a pro rata share of vacation benefits to employees who quit, retired, or surrendered their
seniority. Thus, the reinstated strikers were not eligible for pro rata vacation benefit, pursuant to
the terms of the collective-bargaining agreement. The Board noted that during the most recent 20
negotiations the union sought to amend the vacation benefit provision to provide pro rata benefits
for all employees, but was unsuccessful. Under these circumstances, the Board found that to find
an 8(a)(3) and (1) violation through the manner in which the employer applied the contract
provision would give the union through the unfair labor practice proceeding what it could not
achieve during negotiations.25
I find the instant case to be clearly distinguishable from the circumstances present in Ace
Beverage. There, the Board was required to analyze the language and history of the collective-
bargaining provision when the issue was whether the employer violated Section 8(a) (3) and (1)
in the manner in which that provision was applied. In the instant case, the issue is whether the 30
Respondent has an obligation to bargain over changes in employee benefits when the benefit
plans are explicitly excluded from the contract. Clearly, the bargaining history of the Union and
its predecessors does not establish that the Union has clearly and unmistakably waived its right
to bargain over this important mandatory subject of bargaining.
35
I find the Respondent's reliance on Ball Corp., 322 NLRB 948 (1997) to be similarly
misplaced. There, the complaint alleged the employer failed to bargain with representatives
designated by the union in violation of Section 8(a) (5) and (1). In deciding the issue, the Board
found it necessary to consider the relevant contract provisions regarding the composition of the
union's bargaining committee. Here, as previously noted, the benefit plans are explicitly 40
excluded from the agreement and there is no contract language in the collective-bargaining
agreement or the 2003 MOA which specifically addresses the Respondent’s right to make benefit
changes.
I also find no merit to the Respondent’s related argument that OCAW’s unsuccessful 45
litigation in a suit brought in 1994 under Section 301 of the LRMDA and ERISA challenging
Amoco's right to change health care benefits in the Amoco Medical Plan (AMP) supports its
JD–07–12
14
position that the Respondent is privileged to unilaterally implement the current employee benefit
plan changes. In granting Amoco's motion for summary judgment, the district court specifically
noted that the AMP was excluded from being governed by the terms of the collective-bargaining
agreement and thus Amoco's unilateral action in changing the plan did not constitute a violation
of the contract and therefore did not violate Section 301 of the Act. (R. Exh. 44, pgs. 6–10).5
As noted above, the language of article 12 of the contract is unchanged since the time of
the Amoco litigation. As I have noted above, article 12 specifically excludes the employee
benefit plans from the collective-bargaining agreement. The court's decision is premised upon
the specific exclusion of the AMP from the contract. A decision by a district court that Amoco 10
did not commit a contract violation under Section 301 in 1994 does not, in any way, establish
that there is no underlying obligation to bargain over a mandatory subject bargaining that is not
included in a collective-bargaining agreement. By its express terms Section 301 confers
jurisdiction on the federal courts to determine "suits for violations of contracts between an
employer and a labor organization". Since the parties’ contract specifically excludes the benefit 15
plans, determining whether a unilateral change in those plans constitutes an unfair labor practice
is within the exclusive jurisdiction of the Board. See San Diego Building Trades Council v.
Garmon, 359 U.S. 236 (1959); Kaiser Steel Corp., v. Mullins, 455 U.S. 72, 83 (1982) 14
In further support of its contention that the Union has waived its right to bargain over the 20
benefit plan changes implemented on January 1, 2011, the Respondent relies on the fact that the
Union did not demand bargaining over previous changes that were made unilaterally to various
benefit plans. The record contains several examples of the Respondent's institution of changes in
benefits prior to the ones that are the subject of the instant dispute. On March 7, 2007, the
Respondent notified the Union that the insurance carrier was changed from Met Life to CIGNA; 25
that the maximum disability benefit was increased from $10,000 to $15,000 a month and that the
definition of disability was changed from an inability to perform the duties of an employee's
occupation in the local economy to the inability to perform those duties in the national economy
(R. Exh. 28). On April 4, 2007, the Respondent advised the Union that effective April 1, 2007,
some beneficial changes had been made to employee benefit plans. In this connection, the 30
lifetime benefits under the Respondent’s self-insured medical plan (Aetna PPO) were increased
from $2 million to $5 million. In addition, under the Respondent’s Aetna plan qualified

14 At the hearing the Respondent sought to admit into evidence an unfair labor practice charge filed in
September 1993 by OCAW against Amoco alleging that Amoco violated Section 8(a)(5) and (1) by
making changes to medical care benefits at the Mandan facility. (R. Exh 52). According to the
representation of the Respondent’s counsel, this charge was withdrawn. I rejected the exhibit as I
determined a charge filed in 1993 regarding this issue had no probative value. In its brief, the Respondent
requests me to reconsider my ruling regarding R. Exh.52 and admit it into evidence. The Respondent
contends that the charge "is relevant to the parties comprehension of the company’s authority; and that,
against such a backdrop, the Union has been unable to change the applicable CBA language."
(Respondent's brief, p. 11, fn.12). I adhere to my ruling excluding R. Exh.52. The fact that a predecessor
union filed a charge similar to the instant one in 1993 that was withdrawn has no bearing on this
proceeding. In Ball Corp., 322 NLRB 948, 951 (1997) the Board noted "It is settled law that a Regional
Director’s administrative dismissal or refusal to proceed on a charge is not an adjudication on the merits
and does not preclude future litigation of the subject matter of that charge.” (Citations omitted.)
JD–07–12
15
dependent children would be covered up to age 25 regardless of student status; and beneficial
changes were made in the ability of a retiree's dependents to continue medical coverage if the
retiree died (R. Exh. 29). At a meeting held on April 27, 2007, the Union noted that some of the
changes the Respondent had instituted were substantial and requested that employees be allowed
to change medical plans immediately rather than waiting for the annual open enrollment period. 5
At the union-management meeting held on July 12, 2007, the Respondent’s local
managers at the Mandan facility informed the Union that they had advised individuals at the
Respondent's headquarters about the Union's request that employees be allowed to change
medical plans immediately if they wish to do so. The Union was informed that the Respondent 10
was not going to open enrollment until the regular annual enrollment period. At this meeting the
Respondent also informed the Union that the new vacation policy would be applied to employees
corporate-wide, including those who were represented by a union. The major changes in the
vacation policy were that the maximum amount of accumulated vacation was revised to twice
that of the annual vacation amount and vacation would no longer accumulate during the year but 15
would be granted each January 1 (R. Exh 30). The examples noted above are representative of
changes the Respondent made to benefit plans prior to those announced in July 2010. There are
other examples contained in the record.
I note initially that several of the changes set forth above are beneficial to unit employees, 20
thus there would be little incentive for the Union to request bargaining over such changes. More
importantly, however, the failure of the Union and its predecessors to object to prior changes in
employee benefits does not establish that the Union has waived its right to bargain over the
instant changes to the employee benefit plans. The Board's established policy is that the fact that
a union has not demanded bargaining over changes in bargainable matters in the past does not 25
establish a waiver of the right to bargain over future changes an employer wishes to make, even
where those changes are similar to those made by the employer in the past without objection.
Amoco Chem. Co., supra, at 1222, fn. 6; Georgia Power Co., 325 NLRB 420, 421 (1998); Bath
Iron Works Corp., 302 NLRB 898, 900–901 (1991); Johnson-Bateman Co., 298 NLRB 180,
187–188 (1989).30
I do not agree with the Respondent that the Board's decision in Mt. Clemens General
Hospital, 344 NLRB 450, 460 (2005) supports its position regarding waiver. In the first instance,
in Mt. Clemens the Board indicated that the only exceptions before it were the General Counsel's
exception to the administrative law judge's order and notice regarding an information request. 35
Id. at p. 450, fn. 2. It is clear therefore that no exceptions were filed to the administrative law
judge’s finding that the employer did not violate Section 8(a) (5) and (1) by making changes in
its pension plan. Id. at 459–460. It is settled Board policy that review of an administrative law
judge’s decision is limited to the issues raised by exceptions and that, in the absence of
exceptions; the Board does not pass on an administrative law judge's rationale. FES, 333 NLRB 40
66 (2001). Accordingly, I do not consider the portion of the Board's decision in Mt. Clemens
relied on by the Respondent to be binding precedent. I note, moreover, that in Mt. Clemens there
was specific contract language supporting the administrative law judge's conclusion that the
union waived its right to bargain over changes to the pension program. Thus, the case is also
distinguishable on its facts. 45
JD–07–12
16
Whether the Union's Bargaining Posture Constitutes a Waiver
The Respondent contends that if there was an obligation to bargain over the employee
benefit changes instituted on January 1, 2011, it gave the Union an opportunity to bargain
regarding its proposed changes, and that the Union waived its right to bargain over the changes5
through inaction.
The Acting General Counsel and the Charging Party argue that the Union demanded to
bargain in a timely manner and also timely requested information relevant to the issues to be
bargained. According to the Acting General Counsel and the Charging Party, after the 10
Respondent furnished the information, it implemented its proposal without giving the Union a
reasonable period of time in which to make a proposal.
As noted above, on July 26, 2010, Peterson called Montoya and informed him that the
Respondent would be making benefit changes at the Mandan facility. On July 28, 2010, the 15
Respondent’s CEO sent an email to all employees informing them that the Respondent would
implement changes to benefit plans on January 1, 2011. On July 29, 2010, Peterson gave the
Union a letter containing a summary of the changes that the Respondent planned to institute. On
the same day Montoya told Peterson that Respondent needed to negotiate the benefit changes
with the Union, but Peterson responded that the Respondent had no obligation to bargain 20
regarding this matter in accordance with article 12 of the parties’ collective-bargaining
agreement.
On August 5, 2010, the Union submitted a written demand for negotiations over the
benefit changes. On August 18, Peterson submitted a letter to the Union acknowledging its 25
request for bargaining. In his letter, Peterson maintained that the Respondent's proposed changes
were consistent with its rights to make such changes under the plans as contemplated by the
collective-bargaining agreement. The letter also indicated that, without prejudice to its
contractual right to implement such changes, the Respondent was "willing to discuss the benefit
changes".1530
On August 20, 2010, the Union submitted an information request to the Respondent
seeking a substantial amount of information regarding the comparative costs of the existing plans
and the Respondent’s proposed changes. The Union specifically indicated it was seeking this
information in order to bargain on behalf of its members regarding the Respondent’s proposed 35
changes. The Union requested that the information be provided by October 1, 2010. On
September 9, 2010, the Union submitted a second request for information, seeking copies of the
plan descriptions for both the current plans and the proposed plans. The Union also asked that
this information be submitted by October 1.16

15 At the meeting held between the Respondent and the Union on September 1, 2010, before the
power point presentation was given to employees about the upcoming benefit changes, Montoya again
requested bargaining over the proposed changes. On October 22, 2010, the Union again requested
bargaining over the proposed changes in an email sent to Peterson.
16 Since the information sought by the Union involved the wages, insurance and pension benefits of
the unit employees it is presumptively relevant and the Respondent was obligated to furnish it on request.
Honda of Hayward, 314 NLRB 443 (1994); Crane Co., 244 NLRB 103, 111 (1979).
JD–07–12
17
Pursuant to the Union’s September 9 information request, on September 30 the
Respondent provided approximately 22 summary plan descriptions to the Union totaling
approximately 1100 pages. (GC Exh. 24.) In October 2010, the Respondent presented the Union
with a confidentiality agreement regarding the cost data that the Union had requested on August
20. The parties negotiated regarding the terms of the confidentiality agreement into December 5
2010. On December 14, 2010, the parties executed a confidentiality agreement regarding the cost
data related to the proposed change in benefit plans. On December 15, 2010, Peterson furnished
the Union with the cost data it was seeking and the Union submitted that information to the
International Union's benefit expert the next day. In the same letter Peterson indicated that,
without compromising any of its rights under the collective-bargaining agreement, the 10
Respondent was willing to consider any proposal regarding benefits the Union wanted to make.
However, during the payroll period beginning on December 19, 2010, the Respondent
implemented its proposed change in the 401(k) thrift plan by reducing its matching contribution
from 7 percent to 6 percent. The Respondent implemented the remainder of its proposed changes
to the benefit plans on January 1, 2011, consistent with its declaration at the outset of this 15
process.
I do not agree with the Respondent's position that the Union's conduct after being
informed of the Respondent's intention to implement benefit changes constitutes a waiver of its
right to bargain and privileged the Respondent's implementation of the changes to its benefit 20
plans beginning on or about December 19, 2010. On July 29, 2010, when the Union was first
given a summary of the benefit changes the Respondent intended to make, Montoya informed
Peterson that the Respondent needed to negotiate the benefit changes with the Union. On August
5, the Union sent a letter to Peterson demanding bargaining regarding the benefit changes for the
employees in the Mandan unit. The letter also advised the Respondent that the Union would be 25
submitting a written request for information regarding the benefit changes. Finally, the Union's
letter indicated it wished to schedule meetings to bargain over the changes following the
Respondent's submission of the requested information. Consistent with the Union's August 5
letter, on August 20 and September 9, it submitted the above noted requests for information. The
Respondent supplied the summary plan descriptions on September 30. However, because of the 30
Respondent’s desire for a confidentiality agreement, it entered into negotiations with the Union
regarding such an agreement that were not completed until December 14, 2010. Accordingly, the
information regarding the cost of the plan was not supplied by the Respondent until December
15 and the Union immediately submitted the information to the International Union's benefit
expert who was assisting it in the negotiations.35
The Union had indicated on August 5 that it would bargain over the changes after the
Respondent provided it with the requested information. On December 15, 2010, in a letter to
Peterson, Montoya asked when the Respondent would provide the outstanding cost information
and reiterated that the Union would provide the Respondent with proposed dates for bargaining 40
after it had an opportunity review the information.
By implementing the reduced 401(k) contribution level during the payroll period
beginning on December 19, 2010, and by implementing the remainder of the benefit changes on
January 1, 2011, the Respondent foreclosed the possibility of meaningful bargaining. The Union 45
did not have a sufficient opportunity to review the relevant cost information it received in order
JD–07–12
18
to assist it in making a proposal prior to the Respondent’s implementation of its proposed
changes.
The Board has held that an employer's failure to give a union an adequate opportunity to
review relevant information prior to implementing a proposal supports a finding that the 5
employer's action violates Section 8(a)(5) and (1) of the Act. Decker Coal Co., 301 NLRB 729,
740 (1991); Royal Motor Sales, 329 NLRB 760, 763 fn. 14 (1999). I find that these cases support
my conclusion that the Respondent did not give the Union an adequate opportunity to bargain
after receiving relevant and necessary information. The Respondent makes much of the fact that
the Union did not make a proposal before the Respondent began to implement its proposed 10
changes regarding the benefit plans. Without an adequate opportunity to review the cost
information, however, the Union cannot be faulted for not making a proposal, as it did not have
the underlying information regarding the relative costs of the planned changes compared to the
existing plans. On four occasions the Union asserted its right to bargain regarding these changes
and on two occasions indicated it would make a proposal after it had reviewed the requested 15
information.
It was not until December 13, 2010, when Peterson indicated that the Respondent was
"willing to consider any proposals the Union offers" that it Respondent clearly indicated it would
bargain over the changes it indicated it would make to the benefit plans.17 As late as December 20
6, 2010, when the Union asked whether the Respondent would negotiate the proposed changes
with it, the Respondent replied that it was "prepared to follow article 12 of the agreement,
including the procedures of article 2, sections 1–7 referenced therein. Article 2 of the agreement
provides a grievance could be filed regarding benefit changes but that such issues could not be
arbitrated. As I noted earlier, such a statement establishes that the Respondent was attempting to 25
dictate to the Union the manner in which it should challenge the Respondent’s position on the
benefit changes if it wished to do so. The Union had made several demands to bargain by this
time which the Respondent was obligated to respond to. As of this late date, however, the
Respondent was still sending an equivocal message regarding whether it would engage in
meaningful bargaining with the Union over the proposed changes. Then, after finally indicating 30
it would bargain on December 13, 2010, and providing the outstanding relevant cost information
on December 15, 2010, the Respondent almost immediately began to implement the changes.
Such conduct is incompatible with the statutory duty to bargain in good faith over mandatory
subjects of bargaining.
35
I find the cases relied on by the Respondent in support of its position that the Union
through inaction has waived its right to bargain over the proposed changes to be distinguishable.
In Vandalia Air Freight, Inc., 297 NLRB 1012 (1990) the employer's president, Kauffman met
with the union’s president Sasser on July 16, 1985, and informed him that the employer was in

17 I do not find the fact that the Respondent delayed implementation of its vacation policy for 1 year
after the Union raised objections to it at the September 1, 2010 meeting between the parties supports the
Respondent's position that it had always been willing to engage in good-faith bargaining with the Union
since its initial July 2010 notice that it would institute such changes. There is no evidence the Union
agreed to the Respondent's action in delaying implementation of a change in the vacation policy for 1
year. Thus, the Respondent's unilateral decision regarding this matter does not establish that it was
engaged in good-faith bargaining over the entire range of benefit changes it proposed to institute.
JD–07–12
19
dire financial straits. Kauffman showed Sasser the employer's profit and loss statement.
Kauffman asked Sasser if he had any suggestions for ways that the employer could overcome the
financial difficulties and Sasser offered no ideas. Kaufman informed Sasser that bankruptcy was
one option but that alternatively the parent company was considering the possibility of having
another company (CPS) take over the employer's operation. When Sasser asked what would 5
happen with the drivers the union represented, Kauffman indicated that CPS used owner-
operators and that all the unit employees would have the opportunity to become owner operators.
When Sasser asked if the employer could operate at the status quo, Kauffman again asked Sasser
if he had any ideas on how to accomplish that in light of the financial circumstances. Sasser
again replied he had no suggestions. Kauffman then gave Sasser a letter that he wished to give to 10
the drivers the next day indicating that CPS would take over the operation. After reviewing the
letter, Sasser said there was no sense in meeting with the union committee. He asked if
Kauffman could meet with the drivers instead. On July 21, Kauffman met with the drivers. At
that time Sasser told Kauffman that the drivers had agreed to extend the contract for 1 year.
Kaufman explained that the decision to contract with CPS had been made. On July 27 the union's 15
attorney requested information and requested bargaining over the takeover decision and its
effects. The Board noted that despite being confronted with the urgency of the situation, the
union failed to request information or bargaining for more than 10 days. The Board found that
the union failed to apprise the employer of its desire to negotiate in a timely manner and had
waived its right to bargain. Accordingly, the Board found that the employer did not violate 20
Section 8(a) (5) and (1).
In the instant case, the Union immediately requested bargaining when it was informed of
the Respondent's intention to institute changes in the benefit plans. The Union also requested
relevant information in a timely manner. Despite the Union's repeated assertions that it wished to 25
bargain after it had an opportunity review the information, the Respondent prematurely
implemented its proposed changes on the date that it had initially indicated it would. Moreover,
unlike the situation in Vandalia Air Freight, there is no indication in this case that there was any
economic exigency that made the Respondent's implementation of its proposal on or about
January 1, 2011, necessary.30
In Bottom Line Enterprises, 302 NLRB 373 (1991) the Board reiterated its long-standing
rule that an employer cannot implement a unilateral change regarding a mandatory subject of
bargaining, absent a valid impasse. The Board further indicated that there were two limited
exceptions to the rule: when union engages in tactics designed to delay bargaining and when 35
economic exigencies compel prompt action. Id at 374.18 Neither factor is present in this case.
I also do not agree with the Respondent that the Board's decision in Jim Walter
Resources, Inc., 289 NLRB 1441 (1988), is supportive of its position. In that case the employer
clearly informed the union that it would not be paying insurance premiums during an upcoming 40
strike for employees receiving disability payments. The union, however, never requested
bargaining regarding this matter. Under these circumstances, the Board found that the union's
inaction amounted to a waiver of its right to bargain and therefore the employer did not Section

18 In RBE Electronics of South Dakota, Inc., 320 N.L.R.B. 80, 81 (1995) the Board noted that the
economic exigency exception involves "circumstances which require implementation at the time the
action was taken or an economic business emergency that requires prompt action." (Citations omitted).
JD–07–12
20
8(a) (5) and (1). Here, the Union made four specific demands to bargain and requested relevant
information that was not provided to the Union until shortly before the employer implemented its
proposal. These two salient differences serve to distinguish this case from Jim Walter Resources.
I also find unpersuasive the Respondent's argument that Local 10 did not have sufficient 5
authority to enter into an agreement with the Respondent and that this lack of authority made
good faith negotiations over the benefit changes impossible. The most recent contract between
the parties that expired by its terms on January 31, 2012, indicates that Local 10 is the bargaining
representative. Historically, the bargaining that occurs in the petroleum refining industry occurs
both at the national level by the International Union and at the local level by various local 10
unions. Since the Respondent indicated in July 2010 that it would implement sweeping changes
to its benefit plans on a national level, it is hardly surprising that Local 10 would wish to
coordinate its bargaining with the International Union and also to utilize the expertise of the
International Union's benefit expert. As discussed in detail above, it was the Respondent's
implementation of its changes to the benefit plans immediately after it provided cost data to the 15
Union which precluded any meaningful bargaining and not any action on behalf of Local 10 or
the International Union.
Based on the foregoing, I find that the Respondent violated Section 8 (a)(5) and (1) by
failing to bargain in good faith with the Union regarding the changes to its employee benefit 20
plans in the Mandan unit and by its unilateral implementation of the changes to the plans
commencing on or about December 19, 2010.
CONCLUSIONS OF LAW
25
1. The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union, Local 10 (the Union) is, and, at
all material times, was the exclusive bargaining representative in the following
appropriate unit:
30
All operating and maintenance employees employed by the refining &
engineering department of the Tesoro Refining and Marketing Co. at its Mandan,
North Dakota refinery excluding all clerical, confidential and professional
employees, watchmen and guards, employees of the Tesoro pipeline and
supervisors, as defined in the Act.35
2. By failing to bargain in good faith with the Union regarding changes to its employee
benefit plans, the Respondent violated Section 8(a)(5) and (1) of the Act.
3. By commencing to unilaterally implement changes to its benefit plans on or about 40
December 19, 2010, the Respondent violated Section 8(a)(5) and (1) of the Act.
4. The above unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
45
JD–07–12
21
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act. Specifically, I order the Respondent to restore the employee benefits that 5
were provided to employees before the benefit plans were unilaterally modified. In addition, the
Respondent shall reimburse unit employees for any expenses resulting from the unilateral
changes, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem 661
F.2d 940 (9th Cir. 1981), such amounts to be computed in the manner set forth in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F. 2d 502 (6 Cir. (1971)), with interest as 10
prescribed in New Horizons for the Retarded, 283 NLRB 1173 1987); compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010), enf. denied on other
grounds sub nom. Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
On these findings of fact and conclusions of law and on the entire record, I issue the 15
following recommended19
ORDER
The Respondent, Tesoro Refining and Marketing Co. Mandan, North Dakota, its officers, 20
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the Union regarding employee benefit plans25
(b) Implementing changes to employee benefit plans without bargaining with the Union.
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act. 30
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, bargain with the Union regarding employee benefit plans for the
employees in the following appropriate unit:35
All operating and maintenance employees employed by the refining &
engineering department of the Tesoro Refining and Marketing. Co. at its Mandan,
North Dakota refinery excluding all clerical, confidential and professional
employees, watchmen and guards, employees of the Tesoro pipeline and 40
supervisors, as defined in the Act

19 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–07–12
22
(b) On request of the Union, rescind the unilateral changes to the employee benefit plans
it began to institute on or about December 19, 2010, and restore the benefits furnished under the
employee benefit plans before the changes were instituted.
(c) Make employees whole for all increased costs to them as a result of the unilateral 5
changes in employee benefit plans, including the costs of insurance premiums and the expenses
incurred as a result of the changes in the plans, in the manner set forth in the remedy section of
this decision.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional 10
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay or costs due under the terms of this
Order.15
(e) Within 14 days after service by the Region, post at its facility in Mandan, North
Dakota copies of the attached notice marked “Appendix.”20 Copies of the notice, on forms
provided by the Regional Director for Region18, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive 20
days in conspicuous places including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, 25
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the Respondent at any time since
August 5, 2010.30
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
35
Dated, Washington, D.C., February 7, 2012.

____________________
Mark Carissimi40
Administrative Law Judge

20 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT refuse to bargain with the United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 10 (the
Union) regarding employee benefit plans.
WE WILL NOT implement changes to employee benefit plans without bargaining with the
Union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with the Union regarding employee benefit plans for the
employees in the following appropriate unit:
All operating and maintenance employees employed by the refining &
engineering departments of the Tesoro Refining and Marketing Co. at our
Mandan, North Dakota refinery excluding all clerical, confidential and
professional employees, watchmen and guards, employees of the Tesoro
pipeline and supervisors as defined in the Act.
WE WILL, on request of the Union, rescind the unilateral changes to the employee benefit plans
we began to institute on or about December 19, 2010, and restore the benefits furnished under
the employee benefit plans before those changes were instituted.
WE WILL make employees whole for any increased costs to them as a result of the unilateral
changes instituted in employee benefit plans, including the cost of insurance premiums and the
expenses occurred as a result of the changes in the plans, with interest.
TESORO REFINING AND MARKETING CO.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Towle Building, Suite 790, 330 Second Avenue South, Minneapolis, MN 55401-2221
(612) 348-1757, Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (612) 348-1770.