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JD(SF)–56–14

Los Angeles, CA

UNITED STATES OF AMERICA

BEFORE THE NATIO NAL LABOR RELATIONS BOARD SAN FRANCISCO

DIVISION OF JUDGES

Case 31–CA–085243

Case 31–CA–096709

PHILLIPS 66

and

UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL & SERVICE WORKERS INTERNATIONAL UNION, AFL–CIO/CLC

Nicole Pereira and Simone Gancanyo, Esqs., for the General Counsel.

Michael Chamberlin and Julie Ting, Esqs. (Winston & Strawn LLP), for the Respondent.

Michael Weiner, Esq. (Gilbert & Sackman), for the Charging Party.

DECISION

STATEMENT OF THE CASE

LISA D. THOMPSON, ADMINISTRATIVE LAW JUDGE. This case was tried in Los Angeles, California, on February 24 through 27, 2014. The trial resumed to conclusion on March 18 and 19, 2014. On July 12, 2012, the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL–CIO/CLC (the USW, Local 534 or the Union) filed a charge in Case 31–CA–085243 against Phillips 66 (Respondent or Phillips 66). This charge was amended on July 25, 2012. On January 18, 2013, the Union filed a charge in Case 31–CA–096709 against Respondent. This charge was amended on March 6 and November 26, 2013, respectively. On November 27, 2013, the Regional Director for Region 31 consolidated both charges and issued a complaint and notice of hearing. On December 10, 2013, Respondent filed its answer, denying all material allegations and setting forth its affirmative defenses to the complaint.

The consolidated complaint alleges that Respondent: (1) violated Section 8(a)(1) of the National Labor Relations Act (the Act) when Respondent made unlawful threats/reprisals to its Health and Safety Shift Specialists (HSS) on January 16 and 19, 2012; (2) violated Section 8(a)(5) of the Act when Respondent failed to bargain in good faith with the Union by bargaining with no intention of reaching an agreement; (3) violated Section 8(a)(5) of the Act by unilaterally implementing its final proposal before reaching impasse; (4) violated Section 8(a)(3) of the Act by retaliating against its HSSs when Respondent implemented its final proposal that demoted/reassigned the HSSs to other lower paying bargaining unit positions; and (5) violated Section 8(a)(1) of the Act when Respondent promulgated and maintained an unlawful work rule that prohibits employees from speaking to the news media.

The parties were given full opportunity to participate, introduce relevant evidence, examine and cross-examine witnesses, and file briefs. I carefully observed the demeanor of the witnesses as they testified. I have studied the entire record, the post-trial briefs, and the authorities cited therein. Based on more detailed findings and analysis below, I find that Respondent violated the Act as alleged in the complaint.

FINDINGS OF FACT

I. JURISDICTION

Respondent is a corporation with an office and place of business in Santa Maria, California. Respondent is engaged in the business of oil and gas refining, marketing, and transportation. During the 12-month period ending September 25, 2012, Respondent derived gross revenues in excess of $500,000. During this same time period, Respondent’s Santa Maria refinery sold and shipped goods valued in excess of $50,000 directly from points outside of the state of California. As such, Respondent admits, and I find, that at all material times it was an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

Respondent further admits, and I find, that the following individuals held the positions set forth opposite their names and have been agents of Respondent within the meaning of Section 2(13) of the Act:

Jason Gislason Superintendant of Operations

Tim Seidel Site Manager

Jerry Stumbo Site Manager

Tiffany Wilson Human Resources Manager

The United Steelworkers Union is a large international union with members in several of Respondent’s facilities nationwide. USW Local 534 represents the majority of the employees at the Santa Maria refinery. As such, Respondent admits, and I find that, at all material times, the Union is a labor organization within the meaning of Section 2(5) of the Act.

II. ALLEGED UNFAIR LABOR PRACTICES

A. Background Facts

1. Overview of Respondent’s Operation.

Phillips’ Santa Maria, California refinery is an industrialized facility that processes crude oil into other more useful petrochemical products. It operates 24 hours a day, seven days a week. There are 130– 135 employees at the facility, and it is one of Respondent’s smallest refineries in the United States.

Respondent has a standing collective-bargaining relationship with the Union. The parties' most recent collective-bargaining agreement (CBA) is effective from February 1, 2012 to January 31, 2015. The CBA, by its terms, covers operating, maintenance, and laboratory employees at Respondent's refineries in Los Angeles, Rodeo, and Santa Maria, California. Almost all of Respondent’s refineries are unionized and most of the Santa Maria employees are represented by the Union.

Prior to December 10, 2012, there were five HSSs at the Santa Maria facility: Lionel Senes (Senes), Andy Garcia (Garcia), Bernie Gallizio (Gallizio), Alan Lanier (Lanier), and Steven McNeil (McNeil). As HSSs, they conducted training, permit auditing, fire, CPR, first aid, and annual safety training and procedure reviews. The HSSs also responded to fire, medical, hazmat and gas releases at the facility, and performed emergency medical response (EMT) duties. They also responded to all emergencies at the facility as the Incident Commander. The Incident Command is an emergency management system. If a safety emergency or “incident” occurred within the refinery, the HSS serving as the Incident Commander assumed control over facility operations for the duration of the incident. As Incident Commander, the HSS made all decisions regarding facility operations during the incident and coordinated any safety response required to mitigate potential risks.

The HSSs were also responsible for serving as the Incident Owner. Once the “incident” was safely controlled, as the Incident Owner, the HSS investigated the cause of the incident or near miss at the refinery. At that point, the Incident Owner created incident impact reports where they tracked and documented each incident/near miss at the refinery, ensured that the documentation was accurate and complete regarding the incident, inputted the report into a computerized system (called the incident impact system), and forwarded the incident to the appropriate management official for further handling. Refining incidents rarely occurred, but when they did, they typically lasted for brief periods of time. Only the HSSs served in the role of Incident Commander/Incident Owner. While Respondent’s witnesses testified that the role and duties of the Incident Commander were inherently supervisory, as will be set forth in greater detail below, the HSSs controlled the refinery as Incident Commander solely during the “incident.” Once the incident was sufficiently controlled and documented, a Shift Supervisor took over responsibility for the incident.

The HSSs worked a rotating 28-day shift. A shift set consisted of four 12-hour night shifts with a day off; three 12-hour day shifts with a day off; and three 12-hour night shifts. Afterwards, the HSSs would get a week off in between sets of shifts. The HSSs generally worked 42 hours per week.

Respondent established a detailed management structure at the Santa Maria facility. It maintained a supervisor over each department (i.e., health, maintenance, engineering, operations) who reported to the Site Manager at the facility. Initially, Jeff Patterson was the safety and emergency response supervisor in Santa Maria. He served as the HSSs’ first-line supervisor. At some point, Patterson was demoted as supervisor, and since January 16, 2012, Glen Pericoli (Pericoli) served as the HSSs’ direct supervisor. 3 From approximately July 2010 through July 2012, Jason Gislason (Gislason) was the Operations and Technical Superintendent (supervisor) at the Santa Maria refinery. In that role, Gislason was responsible for most of the engineering functions at the refinery. Gislason also oversaw the day to day operations in Santa Maria between Patterson’s demotion and Pericoli’s hiring. He reported to Tim Seidel.

Tim Seidel (Seidel) was the Site Manager at the Santa Maria refinery from early 2010 through February 2012. Seidel was Pericoli’s and Gislason’s supervisor. As Site Manager, Seidel was responsible for the daily operational activities of the refinery, including health, safety, environmental, and maintenance. After being promoted and transferred to Respondent’s facility in Oklahoma, Seidel left in February 2012, and Jerry Stumbo (Stumbo) took over as Site Manager at the Santa Maria refinery.

Rand Swenson (Swenson) was the Site Manager at the Rodeo, California refinery. He also oversaw some of the daily operations in Santa Maria during the early management transitions at the facility. Swenson served as Rodeo’s Site Manager from approximately January 16, 2012 through February 2013.

Tiffany Wilson (Wilson) was the Human Resources (HR) Manager for the San Francisco refinery. In that role, Wilson also performed HR duties for the Rodeo and the Santa Maria refineries. She was responsible for personnel issues at the facilities including labor relations and grievances.

2. Organizing Campaign.

In or around September 2011, the Union began organizing the five HSSs at the Santa Maria Refinery. In early November 2011, Senes, Garcia, Gallizio, Lanier, McNeil, and Union Steward Willie Kerns (Kerns) took a petition to unionize to Seidel. According to Senes, Garcia, Gallizio, and McNeil, Seidel refused to accept their petition but Seidel denied their version of events. However, it is unnecessary to resolve this discrepancy, because it is undisputed that Seidel became aware that the five HSSs intended to vote whether to join the Union.

Itis undisputed that, prior to the NLRB election (discussed below), Respondent held several meetings with the HSSs. The first meeting occurred in November or December 2011, at the firehouse at the Santa Maria facility. Senes, Garcia, Gallizio, McNeil, Wilson, and Swenson were present at the meeting. According to Senes, Garcia, and Gallizio, Wilson introduced Swenson to the HSSs. Swenson asked the HSSs why they were unionizing, to which Senes told Swenson that the HSSs were having problems working with Seidel and were unhappy with some of management’s decisions concerning them. Swenson stated that the HSSs “got the company’s attention” by petitioning to unionize and that he wished he had spent more time at the Santa Maria refinery. He went on to state that he was there to work with the HSSs to resolve their issues. While Wilson added that she wished that the HSSs would have contacted her with their concerns, Gallizio replied that he previously emailed Wilson about their concerns but received no response from her.

According to Senes and Gallizio, Swenson then told the HSSs that he had previously run a refinery with only one supervisor, he was not going to do that again, and he was not going to hire any more people. While Senes, Garcia, Gallizio, and McNeil admitted on cross-examination that they were initially mistaken about when this meeting occurred, Swenson was not called to testify and Wilson did not provide any testimony concerning this meeting. Accordingly, Senes, Garcia, and Gallizio’s testimony regarding this meeting stands uncontroverted.

3. Region 31 Decision and Direction of Election.

On November 2, 2011, the Union filed a petition to include the five HSSs at the Santa Maria Refinery in the existing statewide multi-facility bargaining unit. Respondent challenged the appropriateness of the HSSs being included in the bargaining unit based on Respondent’s belief that many of the duties the HSSs performed made them “supervisors” under the Act. However, it is important to note Respondent’s rationale for its belief.

Respondent argued to Region 31 that the HSSs’ duties and responsibilities: (1) as Incident Commander/Incident Owner, (2) training other employees regarding safety issues/use of safety equipment, (3) as company representative in disciplinary situations involving bargaining unit employees and (4) other “supervisory indicia” made them “supervisors” or “supervisory employees” as defined under the Act.

However, in a decision dated December 21, 2011, the Acting Regional Director (ARD) of Region 31 rejected all of Respondent’s arguments and concluded that the HSSs were not supervisors or supervisory employees under the Act. The ARD’s rationale in this regard is particularly important.

Specifically, with respect to Respondent’s argument that the HSSs are supervisors when they serve as the Incident Commander/Incident Owner (because they are solely responsible for decisionmaking in the facility when an emergency is invoked), the ARD found that emergencies occur infrequently, and as such, the HSSs spent a very small percentage of their overall working time serving in this capacity. Moreover, the ARD noted that the HSSs do not act in a supervisory capacity as the Incident Commander. In fact, Respondent’s own written materials revealed that the HSS perform the Incident Commander role only during the initial stages of the incident, and thereafter, hand over control of the incident to their supervisor. The ARD further found insufficient evidence to conclude that the HSS responsibly directed employees or otherwise acted as a supervisor when serving as Incident Owner.

Regarding Respondent’s argument that the HSSs are supervisors because they train other employees on safety issues, the ARD found that the record proved otherwise. In fact, the ARD determined that the HSSs performed “routine” safety training according to established procedure and the Safety and Emergency Response supervisor was ultimately responsible for establishing the training content and procedure. Regarding Respondent’s assertion that the HSSs are supervisors because they serve in that capacity during disciplinary meetings, the ARD rejected this argument. Specifically, the ARD determined that:

The record is devoid of evidence that the HSS specialists hire, transfer, suspend, lay off, recall, promote, discharge, discipline employees or adjust their grievances. The only evidence that HSS specialist reward employees is with respect to an incentive program that all employees participate in, whereby any employee can recognize a co-worker for good work, and the coworker receives a small trinket in return. The only evidence of employee discipline involves a situation where an HSS specialist acted as a witness to an employee infraction, which led to that employee’s discipline. There is no evidence that the HSS specialist sought or recommended the employee’s discipline. The discipline was not issued by the HSS specialist. The record is absent of any examples of disciplinary action issued by, or effectively recommended by, HSS specialists towards other employees.

Finally, the ARD concluded, contrary to Respondent’s assertions, that there was insufficient evidence to suggest that the HSSs were “supervisory employees” or agents of Respondent based upon other “supervisory indicia.”

Once the ARD’s Decision was issued, it is undisputed that Respondent’s counsel gave Wilson, Seidel, Stumbo, and Gislason his interpretation of the ARD’s findings. However, none of Respondent’s management team personally read the ARD’s Decision. Nevertheless, Respondent appealed the ARD’s Decision to the Board, and the Board declined review.

B. Alleged Pre-Election Threats

1. Alleged Threats to Change/Remove Job Duties and Cut Overtime – January 16, 2012 meeting. On January 16, 2012, four days before the scheduled election, Respondent held a second meeting with Senes, Garcia, Gallizio, and McNeil at the firehouse at the Santa Maria Refinery. Seidel and Wilson were present for management. Itis undisputed that Wilson asked the HSSs if they had any questions for management to which the HSSs stated, “no.” Wilson also conveyed to the HSSs that the purpose of the meeting was to give them information so they could make an informed decision on whether to vote for or against the Union. However, all other aspects of this meeting are disputed.

According to Senes, Garcia, Gallizio, and McNeil, Wilson told them that management felt that certain aspects of their jobs were supervisory which would be taken away from them if they joined the Union. Wilson also told the HSSs that Respondent may not need to have them work a 24/7 shift. Senes recalled that Wilson told the HSSs, because Respondent felt they were supervisors, management would have to look at other aspects of their job duties to see if they were supervisory. Similarly, Garcia recalled that Wilson stated that there would be changes to their jobs if they decided to join the Union because “anything Respondent felt was supervisory would be taken away.”

McNeil recalled that Wilson essentially told them that if the HSSs supported the Union, they “might lose their jobs,” some of them would be reassigned to eight-hour jobs, they would no longer have the Incident Commander function, others may come in and perform some of their duties, their vacation schedules might change, and some of them may be transferred to other jobs. According to McNeil, he understood Wilson to say that “[the HSSs] may not have their jobs if they voted for the Union.”

Lastly, Seidel told the HSSs that Respondent may have to adjust their overtime if they joined the Union and that that their job duties would be reviewed to see if Respondent needed them on a 24-hour versus an eight-hour shift which would be a way to mimimize overtime.

However, Wilson and Seidel denied saying anything that conveyed any negative consequences for the HSSs voting to join the Union. Specifically, Wilson recalled that she told the HSSs that if they voted to join the union, Respondent would need to engage in bargaining with the Union to discuss their wages, hours, and job duties. She also told the HSSs that management believed some of their duties were supervisory. She further explained that, as part of the discussion about their wages, hours, and job duties, Respondent would need to discuss their duties with the Union because Respondent could not have bargaining unit employees performing supervisory duties. She denied that she ever told the HSSs that they would lose their jobs, that their hours, shifts, or overtime would be cut or that anything negative would happen if they voted to join the Union.

Likewise, Seidel denied that he made any statements relating to anything adverse happening to the HSSs if they voted to join the Union. Seidel noted that the jest of the meeting was to understand why the HSSs wanted to join the Union and to explain to them the election process. According to Seidel, he wanted to ensure the HSSs were aware of what would need to be negotiated if they decided to join the Union. However, Seidel admitted he told the HSSs that if they voted to join the Union, management would need to discuss their schedules, their rate of pay, and their duties because management believed many of their current duties were supervisory. Seidel denied telling the HSSs that their hours, wages, or overtime would be cut, they would no longer work a 24/7 schedule, or that they would lose their jobs if they voted to join the Union.

At this point, it is important to discern precisely what was said by whom during this meeting, a matter that turns on an evaluation of credibility. While this is a close credibility question, I credit Senes’, Garcia’s, and Gallizio’s testimony over that of Wilson and Seidel.

First, there is no dispute, based upon all of the witnesses’ testimony, that Wilson and Seidel told the HSSs that management felt that certain aspects of the HSSs’ job duties were supervisory, and that those duties would need to be reassigned, because Respondent believed they could not have bargaining unit employees performing supervisory duties. In fact, Wilson and Seidel admitted to these statements. I also find that Senes’, Garcia’s, and Gallizio’s testimony was consistent, specific as to the statements made versus generalized assertions, and supported by one another. Although McNeil basically reiterated Senes’, Garcia’s and Gallizio’s testimony about what Wilson and Seidel told them during the meeting, McNeil essentially paraphrased Wilson’s and Seidel’s statements. Because of this, I will not rely on McNeil’s testimony.

However, I do not credit Wilson’s or Seidel’s testimony concerning their statements. Although Wilson and Seidel couched their testimony concerning what they told the HSSs by stating that management “would need to discuss” certain of the HSSs’ job duties, schedules, etcetera, with the Union, I find Senes’, Garcia’s, and Gallizio’s version more consistent with Wilson’s and Seidel’s overall testimony that management felt that some of the HSSs’ duties were supervisory, and if so, those duties would need to be removed from them which would necessitate a change in their hours, shifts, and schedules. Most importantly, I found Wilson’s testimony on other areas, particularly on cross-examination, evasive and, at times, unbelievable which called into question her overall testimony and credibility.

Accordingly, I find that Wilson told the HSS that: (1) management felt that certain aspects of their jobs were supervisory which would be taken away from them if they joined the Union, (2) Respondent may not need to have the HSS on a 24/7 shift (because without those supervisory duties, they may not have a business need for the HSS to work a 24/7 shift), and (3) because Respondent felt that the HSSs were supervisors, management would have to look at other aspects of their job duties to see if they were supervisory. I also find that Seidel told the HSS that Respondent may have to adjust their overtime if they joined the Union, and their job duties would be reviewed to see if Respondent needed them on a 24-hour versus an eight-hour shift which would be a way to mimimize overtime.