United Refining Co.

National Labor Relations Board - Board Decisions

Feb 26, 1999

327 N.L.R.B. 795 (N.L.R.B. 1999)

UNITED REFINING CO. 795
United Refining Company and International Union of
Operating Engineers, Local 95, 95A, AFL–CIO.
Case 6–CA–29859
February 26, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On November 10, 1998, Administrative Law Judge
Jerry M. Hermele issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed cross-exceptions and a brief in
response to the Respondent’s exceptions.
The National Labor Relations Board had delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judges rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We adopt the judge’s finding, inter alia, that the Respondent violated
Sec. 8(a)(3) of the Act by requiring the warehouse employees to start
punching a timeclock. We do not, however, adopt the judge’s finding
that by this conduct the Respondent also violated Sec. 8(a)(5) of the
Act. See Rust Craft Broadcasting of New York, 225 NLRB 327 (1976).
Member Fox would adopt the judge’s finding that the Respondent
violated Sec. 8(a)(5) of the Act by requiring the warehouse employees
to start punching a timeclock. She notes that the Respondent at no time
contended that this was not a material change, let alone relied on Rust
Craft. Rather, the Respondent’s defense to this conduct, as well as all
the unilateral changes, is that it had the right to put the warehouse em-
ployees under the contract that covered the other unit employees. Be-
cause, as the judge correctly found, the Respondent was not privileged
to apply the contract to the warehouse employees, she would adopt the
judge’s finding that the change in the timeclock requirement violated
Sec. 8(a)(5).
In its cross-exceptions, the General Counsel asserts that the judge
inadvertently failed to find unlawful the Respondent’s unilateral change
in the vacation rate of pay of the warehouse employees. We agree with
the General Counsel that this was an inadvertent error by the judge, and
accordingly shall modify the judge’s recommended Order and notice to
include this unilateral change as part of the conduct violating Sec.
8(a)(5), (3), and (1) of the Act.
2 In accordance with the General Counsel’s cross-exceptions, we
shall modify the judge’s recommended Order to delete the phrase “any
further” from the requirement that the Respondent cease and desist
from changing the terms and conditions of employment of the ware-
house employees, and we shall modify the notice to employees to in-
clude the payment of interest in the “make whole” portion of the notice.
We shall also modify the judge’s recommended Order and notice to
include the requirement that the Respondent cease and desist from
refusing to bargain with the Union over the terms and conditions of
employment of the warehouse employees.
In our Order we provide that the Respondent shall restore the terms
and conditions of employment of the warehouse employees in effect
before June 12, 1998. Nothing in our Order, however, should be con-
strued as requiring the Respondent to rescind, without a request from
the Union, any increase in earnings and benefits that may have resulted
from its unilateral changes. Vibra-Screw, Inc., 301 NLRB 371 fn. 2
(1991).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, United
Refining Company, Warren, Pennsylvania, its officers
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Insert the following as paragraph l(b) and reletter
the subsequent paragraphs.
“(b) Refusing to bargain in good faith with the Union
over the terms and conditions of employment of the
warehouse employees.”
2. Substitute the following for paragraph 2(a).
“(a) On request of the Union, restore the terms and
conditions of employment of the warehouse employees
in effect before June 12, 1998, including their hourly
wages, health plan enrollment, time and attendance pro-
cedure, cafeteria privileges, seniority dates, sick leave
privileges, and vacation pay rates.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT unilaterally, or for discriminatory rea-
sons, change the terms and conditions of employment of
the warehouse employees.
WE WILL NOT refuse to bargain in good faith with
the Union over the terms and conditions of employment
of the warehouse employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request of the Union, restore the terms
and conditions of employment of the warehouse employ-
ees in effect before June 12, 1998, including their hourly
wages, health plan enrollment, time and attendance pro-
cedure, cafeteria privileges, seniority dates, sick leave
privileges, and vacation pay rates.
WE WILL make the warehouse employees whole,
with interest, for any loss of earnings or benefits caused
by the June 12, 1998 changes.
WE WILL bargain in good faith with the International
Union of Operating Engineers, Local 95, 95A, AFL-CIO,

327 NLRB No. 143
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 796
over the terms and conditions of employment of the
warehouse employees.

UNITED REFINING COMPANY

Dalia Belinkoff, Esq., for the General Counsel.
Richard W. Perhacs, Esq. (Knox McLaughlin Gornall & Sen-
nett, P.C.), of Erie, Pennsylvania, for the Respondent.
DECISION
I. STATEMENT OF THE CASE
JERRY M. HERMELE, Administrative Law Judge. The Re-
spondent, United Refining Company, and the Union, the Inter-
national Union of Operating Engineers, Local 95, 95A, AFL–
CIO, have had a long-term collective-bargaining relationship.
In February 1998, a majority of the Respondent’s six ware-
house employees voted to join the Union, with unexpected
results: a degradation of the terms and conditions of their em-
ployment, as the Respondent proceeded to classify them as new
entrylevel employees. This prompted the Acting General
Counsel1 to issue a complaint on July 9, 1998, alleging that the
Respondent violated Section 8(a)(1), (3) and (5) of the National
Labor Relations Act. The Respondent denied the complaint’s
substantive allegations on July 15, 1998.
In a short trial held in Warren, Pennsylvania, on August 19,
1998, the Acting General Counsel called four witnesses and the
Respondent called two witnesses. Both parties then filed briefs
on October 9, 1998.2
II. FINDINGS OF FACT
The Respondent operates an oil refinery on the Allegheny
River at Warren, Pennsylvania, from which it sells and ships
over $50,000 of product to out-of-state locations annually (GC
Exhs. 2–3). Of 300 or so total employees, 205 are unionized.
Those not unionized include secretaries, certain engineers, mill
room workers, and service station operators (Tr. 30–31). Be-
fore 1998, the employees at the warehouse were not unionized.
Their job was to maintain and distribute parts to the refinery’s
other workers. The Union felt that these employees should
become part of the main bargaining unit and, accordingly, a
representation petition was filed on February 5, 1998. And on
May 5, 1998, an election was held, which the Union won, 4–2;
the results of which were certified on May 15, 1998 (GC Exhs.
3–5; Tr. 31–34).
One of the six warehouse workers left his job shortly after
the election. Of the five remaining employees, they earned the
following hourly and vacation pay before the election:

Paul Brink $13.05 an hour
Henry Peano 9.88 an hour
Bryan Johnson Jr. 8.70 an hour
Tina Leonard 8.48 an hour
Sue Rugar 6.50 an hour

1 The General Counsel was in an acting capacity when the complaint
was issued. But the adjective disappeared on October 22, 1998.
2 On August 18, 1998, the Acting General Counsel filed for injunc-
tive relief with the United States District Court. Oral argument was held
on September 15, but the Respondent’s request for oral testimony was
denied because it was concluded that such would have been “duplica-
tive of the recorded testimony presented to the ALJ.” On October 30,
the district court granted injunctive relief.
All these employees, except Tina Leonard, were enrolled in a
Select Blue health plan before the election, which was an
“HMO” plan not available to bargaining unit employees. Also
before May 1998, these employees, other than Brink, kept track
of their time and attendance by manually filling out timecards.
They also were allowed to eat a $1 lunch in the company cafe-
teria, except for Brink. They also had various seniority dates
ranging from 1975 to 1991 (Tr. 13–15, 76–77). During the
election campaign, some of the warehouse employees were
concerned about losing some of the aforementioned benefits if
they joined the bargaining unit. Chief Steward Glenn Landers
told them that it was a possibility (Tr. 85). And during the
hearing held to determine whether the warehouse employees
should be included in the bargaining unit, the Union believed
that those employees should be covered by the existing collec-
tive-bargaining agreement (Tr. 65–66), which ran from Febru-
ary 1, 1996, to February 1, 2001 (GC Exh. 6).
After the election, the Union’s business agent, James Car-
penter, asked the Respondent to bargain over the terms and
conditions of the employment of these warehouse employees.
Carpenter felt that bargaining was required because these em-
ployees were new to the bargaining unit. So, Carpenter and
Landers met with Lawrence Loughlin, the Respondent’s per-
sonnel supervisor, on June 10, 1998. Landers thought this
meeting would lay the groundwork for future bargaining nego-
tiations. Carpenter asked where the warehouse workers would
be placed in the Company’s organizational scheme, and Lough-
lin responded that they would be classified as “laborers,” or
entrylevel employees earning $6.50 per hour. Loughlin added
that their seniority would be calculated as of May 15, 1998, and
that they would be taken out of the Select Blue health plan (Tr.
34-40, 70, 80). Loughlin added that the warehouse employees
would receive the same benefits as bargaining unit employ-
ees—and nothing better—because “we already had a contract”
(Tr. 45, 122). Also, they would have to pass a climbing test,
which is required of all new employees. Further, they would
have to punch a clock for time and attendance. And, as bar-
gaining unit employees, they would no longer be allowed to eat
in the company cafeteria (Tr. 118–121). Coming into the June
10 meeting, Carpenter felt that the warehouse employees
should keep all their current benefits until negotiations were
completed (Tr. 62). According to Carpenter, Loughlin said that
he was “not going to give the Union anything that we can take
to other non-union workers and show them what the Union
could get for them.” (Tr. 41). Also, according to Landers,
Loughlin said that he was “not going to make it attractive for us
to entice other employees to join the Union” (Tr. 74–75). But
Loughlin denied saying that the Company was retaliating
against the warehouse employees or trying to discourage future
union organizing. But he conceded saying that “the Company
did not know who else the Union was trying to organize in the
future.” (Tr. 128–129). So, Carpenter never got a chance to
bargain over the warehouse employees’ terms and conditions of
employment. Moreover, there were no other meetings held for
that purpose despite the Union’s July 10, 1998 written request
(GC Exh. 11; Tr. 46–48, 79).
On June 12, 1998, the Respondent changed the pay of the
warehouse employees to $6.50 per hour, effective June 15 (GC
Exhs. 7–8). Further, they were transferred (except for Leonard)
to another health plan, had to start punching the timeclock (ex-
cept for Brink), could no longer eat lunch in the cafeteria (ex-
cept for Brink), had to take climbing tests (except for Brink),
UNITED REFINING CO. 797
had their sick leave privileges eliminated, and were assigned
plant seniority dates of May 15, 1998 (Tr. 13–15).
On five prior occasions, nonbargaining unit employees
switched to new bargaining unit jobs, with no objections from
the Union (Tr. 123–125). But the warehouse employees’ situa-
tion was the first time that existing employees’ jobs were trans-
ferred into the bargaining unit (Tr. 131–132). And Landers,
who negotiated the 1996 contract, had no understanding then
what would happen if existing jobs were transferred into the
bargaining unit (Tr. 84–85). Indeed, the contract was silent on
this.
On June 18, 1998, the Union filed a grievance, claiming that
“the company illegally made a unilateral change in wages and
benefits of the warehouse employees” (GC Exh. 13). The Un-
ion also filed other grievances regarding specific incidents in
the warehouse on June 22, and 24 and July 6. But these griev-
ances were withdrawn shortly thereafter because, according to
Carpenter, there was nothing to file a grievance over if the Re-
spondent refused to bargain (GC Exh. 12; Tr. 57).
Sometime in July 1998, Assistant Chief Steward Randy Hart
asked Supervisor Charlie Morrison for a contribution to a fund
for the warehouse employees. According to Hart, Morrison
said that he would contribute because “it was a bunch of bull-
shit what the Company did.” Morrison added that he “felt the
company was watching us” and if the Union won this battle, the
Union would try to organize other workers too (Tr. 89–91).
Bryan Johnson, one of the five remaining warehouse work-
ers, testified that Warehouse Supervisor Kris Lord said that he
“thought the Company was doing this to get even with us for
joining the Union” (Tr. 95–96). Johnson understood this to be
Lord’s personal opinion (Tr. 102). But Lord denied telling
Johnson that the Company was reducing their pay to retaliate
for their vote for the Union (Tr. 112–113).
III. ANALYSIS
It is very well-settled that unrepresented employees who vote
to join an existing bargaining unit “are not automatically swept
under the terms of the agreement covering the existing unit. . . .
Rather, the union and the employer bargain over the terms and
conditions under which the [new] group will work until the
contract in the larger unit expires, and the status quo from
which they bargain is the current working conditions of those
employees.” Borden, Inc., 308 NLRB 113, 114 (1992). Thus,
the Respondent is clearly incorrect in contending that no addi-
tional bargaining was required for the five warehouse employ-
ees following the May 15, 1998 certification of the election.
First, the Respondent cites to no relevant portion of the existing
1996 collective-bargaining agreement which addresses the
central issue of this case: what happens when nonbargaining
unit jobs are transferred into the bargaining unit. Indeed, be-
cause the 1996 agreement does not address this matter, bargain-
ing over the status of the warehouse employees was all the
more necessary. Second, the Respondent incorrectly reads the
Union’s filing of grievances in June and July 1998 as an im-
plicit acceptance that all of the terms of the collective-
bargaining agreement applied to the warehouse employees.
Suffice it to say that the offer of water to a thirsty man does not
mean the thirsty man endorses the flavor of the drink. Third,
the June 10, 1998 meeting between the Union and management
did not constitute anything approaching good-faith bargaining.
Rather, Lawrence Loughlin simply stated that the five ware-
house employees would be treated as new employees with a
corresponding loss in wages and other benefits. And despite
the Union’s request, no other “bargaining” session was ever
held. Nor was any genuine impasse reached between the Union
and the Respondent. Thus, the Respondent’s June 12, 1998
unilateral changes in the five warehouse employees’ terms and
conditions of employment violated Section 8(a)(1) and (5).
Accordingly, the Respondent will be ordered to return the five
employees to the status quo as of June 12, 1998, and to bargain
in good faith with the Union over how these employees fit in to
the bargaining unit before the expiration of the collective-
bargaining agreement on February 1, 2001.
Turning to the General Counsel’s theory that the Respon-
dent’s refusal to bargain was founded in union animus, as op-
posed to a good-faith legal position, there are five pieces of
evidence. First, the General Counsel cites Carpenter’s testi-
mony that Loughlin stated in the June 10 meeting that he was
“not going to give the Union anything that we can take to other
non-union workers and show them what the Union could get
for them.” Second, Union Steward Landers testified that
Laughlin stated in the same meeting that management was “not
going to make it attractive” for the Union to organize other
workers. Third, the General Counsel points to Laughlin’s ver-
sion of the same meeting, in which he admitted saying that the
Respondent would not negotiate because “the Company did not
know who else the Union was going to try to organize in the
future.” Fourth, in July 1998 another supervisor, Charlie Mor-
rison, said that what the Respondent did was “bullshit” and that
he “felt” the Respondent was “watching” the Union. Fifth,
there is the allegation that another supervisor, Kris Lord, said
that “the Company was doing this to get even” with the Union;
a statement denied by Lord. Likewise, Laughlin denied the
statements attributed to him by Carpenter and Landers.
The question is whether any of the Respondent’s supervisors
said anything incriminating about the Company’s motives for
failing to negotiate. In the presiding judge’s view, the alleged
remark by Morrison was peripheral and ambiguous. As for
Lord’s alleged remark, it is troubling that warehouse employee
Johnson, who allegedly was on the receiving end of Lord’s
remark, failed to mention this in his pretrial affidavit. In any
event, neither Morrison nor Lord played any apparent part in
the Respondent’s decision not to negotiate with the Union. But
Laughlin, of course, was the key player in that decision and his
direct trial testimony clearly links this strategy with the Union’s
right to engage in future organizing. On top of that, Carpenter
and Landers both credibly testified about antiunion remarks
made by Laughlin in the June 10 meeting. On balance, there-
fore, the General Counsel has met its burden of showing that
the Union’s protected activity was a motivating reason for the
Respondent’s refusal to bargain with, and decision to impose
unilaterally the June 12, 1998 conditions of employment upon,
the warehouse employees. Further, the Respondent has failed
to establish, by a preponderance of the evidence, that its deci-
sions were based on lawful reasons and would have occurred
even if it harbored no union animus. Indeed, as already dis-
cussed, the Respondent’s failure to bargain was clearly unlaw-
ful under established Board precedent. Therefore, it is con-
cluded that the General Counsel has proven that the Respondent
also violated Section 8(a)(1) and (3) of the Act. Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982); approved in Transportation
Management Corp., 462 U.S. 393 (1983).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 798
CONCLUSIONS OF LAW
1. The Respondent, United Refining Company, is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, International Union of Operating Engineers,
Local 95, 95A, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The General Counsel has failed to prove its allegations at
paragraphs 13, 15(b), and 26 of the August 17, 1998 amended
complaint.
4. Pursuant to paragraphs 14, 15, 16, 17(a), 17(c), 18, 19, 20,
21, and 27 of the amended complaint, the Respondent violated
Section 8(a)(1) and (3) of the Act by changing the terms and
conditions of employment of the warehouse employees in order
to discourage membership in a labor organization.
5. Pursuant to paragraphs 23, 24, 25, and 28 of the amended
complaint, the Respondent violated Section 8(a)(1) and (5) of
the Act by unilaterally imposing terms and conditions of em-
ployment on the warehouse employees, and refusing to bargain
collectively with the Union.
6. The Respondent’s unfair labor practices, described in
paragraphs 4 and 5, above, affect commerce within the meaning
of Section 2(6) and (7) of the Act.
On these findings of fact of fact and conclusions of law and
on the entire record, I issue the following recommended3
ORDER
The Respondent, United Refining Company, Warren, Penn-
sylvania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally, or for discriminatory reasons, changing any
further the terms and conditions of employment of the ware-
house employees.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Restore the terms and conditions of employment of the
warehouse employees in effect before June 12, 1998, including
their hourly wages, health plan enrollment, time and attendance

3 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 pur-
poses.
procedure, cafeteria privileges, seniority dates, and sick leave
privileges.
(b) Make the warehouse employees whole for any loss of
earnings and other benefits caused by the June 12, 1998
changes, to be computed as set forth in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
(c) Bargain in good faith with the Union over the terms and
conditions of employment of the warehouse employees.
(d) Preserve and make available to the Board or its agents for
examination and copying all payroll records, social security
payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its
Warren, Pennsylvania office copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 6, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings 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 May 15, 1998.
(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.
IT IS FURTHER ORDERED that the General Counsel’s un-
opposed October 8, 1998 motion to correct the transcript is
granted.

4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”