Getty Refining And Marketing Co.

924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Getty Refining and Marketing Co. and Local 8-898, Oil, Chemical and Atomic Workers Internation- al Union, AFL-CIO. Case 4-CA-14068-2 14 May 1986 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON Upon a charge filed 2 November 1983 the Gen- eral Counsel of the National Labor Relations Board issued a complaint 14 February 1984 against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing to furnish infor- mation that the Union requested concerning the Employee Recreation Fund (the Fund). On 5 July 1984 all parties filed a stipulation stat- ing that they desired to waive hearing and decision by an administrative law judge and to submit the case directly to the Board for findings of fact, con- clusions of law, and an order based on the stipulat- ed record. On 13 September 1984 the Board ap- proved the stipulation and transferred the proceed- ing to the Board. The General Counsel, the Re- spondent, and the Union filed briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record in the case and after consid- eration of the briefs, the Board makes the following findings. 1. JURISDICTION The Respondent, a Delaware corporation, is en- gaged in refining petroleum products and operates a facility in Delaware City, Delaware, involved in this proceeding. During the year preceding the complaint the Respondent sold and shipped prod- ucts valued in excess of $50,000 directly to points outside the State of Delaware. We find that the Respondent is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act, and that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. UNFAIR LABOR PRACTICES A. Issue The issue presented is whether the Respondent violated Section 8(a)(5) and (1) of the Act when it refused to furnish certain information the Union re- quested concerning the Fund's income and expend- itures. B. Facts The Union, as the 9(a) representative, represents the Respondent's Delaware City employees in two separate units appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b): a clerical unit of about 13 employees and a manufacturing unit of about 435 employees. Ap- proximately 350 nonunit employees also work for the Respondent at Delaware City in professional, technical, supervisory, and office clerical positions. In addition, approximately 500 individuals em- ployed by independent contractors work at the fa- cility, and their number may increase to 1500 during seasonal periods. The Fund has existed since the Respondent opened the Delaware City facility in 1956, and management has exercised sole discretion over its operations since that time. There is no history of bargaining about the Fund; it is not mentioned in collective-bargaining agreements ; and it has not been the subject of grievances. However, the Re- spondent's employee relations manual, available for inspection by unit and nonunit employees, de- scribes the Respondent's policy concerning contri- butions for employee social and recreational activi- ties.' The manual declares the activities can be of benefit to the employees and the company; speci- fies that divisionwide expenditures by the Fund shall not exceed an amount equivalent to $35 per employee annually; suggests guidelines to be used in approving expenditures; explains how employees shall make requests for approval of an activity; and provides that reimbursements be made only to groups or for activities which consist of employees and their families. The Respondent's director of employee relations administers the Fund. He reviews proposals for ac- tivities submitted by employees without regard to their bargaining-unit status, and exercises sole dis- cretion in granting disbursements from the Fund. In deciding what expenditures to approve, he con- siders whether a proposed activity is the kind that the Respondent wants to sponsor, whether it is ap- propriate for the Respondent to support its cost, and whether a sufficient number of employees are interested in the activity. In past years most of the Fund's money has been used to subsidize an employee Christmas party in December. In 1983, after the Respondent's parent company decided to stop financial assistance for Christmas parties, most of the Fund's money was spent for a Harvest Ball held in November.2 The ' Sec 452, revised 26 July 1983 2 The Respondent did not notify the Union or bargain with it before implementing the policy change regarding subsidizing Christmas parties Continued 279 NLRB No. 126 GETTY REFINING CO 925 Fund has also supported golfing, softball, trap- shooting, and bowling, and has provided retire- ment-party tickets. The Respondent declined to fund a volleyball league because it concluded there was little employee interest in the project. The Fund receives the profits from food-vending machines that are located throughout the Delaware City facility and used by all workers, unit and non- unit employees and independent contractors' em- ployees.3 If the director of employee relations de- cides the profits are insufficient to finance appro- priate activities, he may request additional money from the Respondent's corporate headquarters. In 1981 he requested and received $2200 additional funds; in 1982, $885; and in 1983, $783.4 All the Respondent's employees, unit and non- unit as well as independent contractors' employees who work at Delaware City, may participate in ac- tivities that the Fund subsidizes . Participation of family members and friends may be limited depend- ing on the activity. No employee or other worker is required to participate in any subsidized activity, but those who do not participate do not receive any substitute benefits.5 Beginning in June 1983 the Respondent and the Union were negotiating new collective-bargaining agreements.6 By letter dated 4 October 1983 the Union requested the Respondent to supply certain information concerning the Fund so that the Union could formulate bargaining demands. Specifically, it requested the following information for the 12- month period preceding 1 October 1983: (1) the income that the Fund received from vending ma- chines; (2) the source and amount of any other moneys the Fund received; and (3) amounts of moneys the Fund expended and the group or func- tion for which it expended the moneys. The Union also requested the actual amount of money in the Fund as of 1 October 1983. By letter dated 3 November 1983 the Respond- ent provided part of the information that the Union had requested. It disclosed the amount of income the Fund received from vending machines, because The July 1983 revision of sec 452 of the employee relations manual states that the Company will not provide assistance or subsidy for Christ- mas parties s Owners of the machines collect the money from the machines Lance Cracker Company, which owns the candy/cracker machines, makes its checks payable to Getty Oil Co V.A A Vendine, which owns the soda machines, makes its checks payable to GRMC Employees Fund 4 The General Counsel and the Union contend that the additional money is part of the Fund The Respondent contends that the vending- machine revenue constitutes the total money which makes up the Fund 5 In addition to Fund activities, the Respondent totally finances an annual picnic and service-emblem dinners 6 Negotiations for the clerical unit took place between 9 June 1983 and 17 February 1984, negotiations for the manufacturing unit took place be- tween 15 December 1983 and 22 January 1984 In September 1983 the Union was meeting to formulate bargaining demands for the manufactur- ing unit it considers vending-machine prices a mandatory bargaining subject. It declined to provide the other information requested on the ground that the infor- mation did not concern a mandatory bargaining subject. C. Contentions of the Parties The General Counsel and the Union maintain that the Fund is a mandatory bargaining subject and the information requested is relevant to the Union's representative duties, particularly negotiat- ing modifications of the bargaining contract. They also argue that, even if the Fund is not a mandato- ry bargaining subject, the information is necessary to monitor the terms of the contract, particularly the nondiscrimination provision.? The Respondent maintains that the Fund is a permissive bargaining subject and is only inciden- tally related to wages, hours, or terms and condi- tions of employment. The Fund, it argues, is de- signed to enhance the lives of persons working at the Delaware City location, and is comparable to gifts that the Board has found do not constitute bargainable matters. D. Discussion and Conclusions We find that the Fund is an existing employment condition, and the Respondent has an obligation to bargain about it and furnish the information the Union requested about its income and expenditures. In partially supporting social events and group recreational activities, the Fund affords employees a recreational opportunity that amounts to a signifi- cant economic benefit to the individual employee and a substantial annual sum which constitutes an integral part of the total economic package avail- able to employees.8 The Fund, in effect, is a wage enhancement feature that is part of the Respond- ent's compensation structure. Although the Re- spondent established the Fund unilaterally, we do not consider it simply a gift or gratuity. The Board and courts recognize that an employee benefit that an employer initiates voluntarily may become an employment condition over which the employer Relevant contracts for the clerical unit and the manufacturing unit provide that neither the Company nor the Union shall discriminate against any employee because of race, color, religion, sex, age, or nation- al origin 6 The Respondent employs about 448 represented employees and 350 nonunit employees The employee manual suggests annual Fund expendi- tures of $30 per participating employee for social affairs, $ 15 per partici- pating employee for sports tournaments , $200 per team for team events, and $160 per league for league events The income that the Fund re- ceived from vending machines for the year I October 1982 through 30 September 1983 amounted to $12,996 77 according to the Respondent's 3 November 1983 letter to the Union 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD must bargain.9 Here the Fund has existed for almost 30 years, and the Respondent has incorpo- rated its Fund policy into the employee relations manual, thereby giving employees some expecta- tion that the Fund benefit will remain available in connection with their employment. 10 The information the Union requested about the Fund's income and expenditures is clearly relevant to computing the economic benefit of the Fund and evaluating its worth to employees in order to bar- gain about its continuance, modification, or re- placement by an alternative benefit. By refusing to furnish the Union the requested information, which is relevant to a mandatory bar- gaining subject , the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act. CONCLUSION OF LAW The Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act by refusing to furnish the Union the in- formation it requested about the Fund. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist and take certain affirmative action designed to effectuate the policies of the Act. ORDER The National Labor Relations Board orders that the Respondent, Getty Refining and Marketing Co., Delaware City, Delaware, its officers , agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local 8-898, Oil, Chemical and Atomic Workers International Union, AFL-CIO, as the exclusive bargaining rep- resentative of the employees in the following ap- propriate bargaining units by refusing to furnish relevant information it requested about the Em- ployee Recreation Fund: Unit A: all employees in the Controller's Department Refinery Accounting Section at Respondent's Delaware City, Delaware facility in the job classifications of Senior Clerk, Inter- mediate Clerk and Junior Clerk. 9 See Singer Mfg Co, 24 NLRB 444 (1940), modified and enfd 119 F 2d 131 (7th Cir 1941), NLRB v Niles-Bement-Pond Co, 199 F 2d 713 (2d Cir 1952), Radio Electric Service Co, 278 NLRB 469 (1986) 10 in view of the foregoing facts, we find that Benchmark Industries, 270 NLRB 22 (1984), on which the Respondent relies, is clearly distin- guishable from the present case Unit B: all Respondent's manufacturing de- partment employees at its Delaware City, Delaware facility in the job classifications of Operator A, Operator B, Operator C, Relief Pool Operator, Service Area Trainee, Day Dispatcher, Shift Dispatcher, Guager, Dock- worker, Tank Car Loader, General Service Operator, Storehouse-Leader, Counter-Clerk, Process Clerk, Laboratory Technician, Labo- ratory Trainee, Bottle Washer and Fire Guard. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Furnish the Union, on request, the relevant information about the Employee Recreation Fund set out in the Union's letter dated 4 October 1983. (b) Post at its facility in Delaware City, Dela- ware, copies of the attached notice marked "Ap- pendix."11 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. CHAIRMAN DOTSON, dissenting. In Benchmark Industries 1 the Board considered the question of under what conditions employer grants of benefit constitute terms and conditions of employment subject to the bargaining requirement. The Board found that Christmas dinners and hams given by the employer to its employees were merely gifts and that the employer could unilateral- ly discontinue them. I consider the employer-sup- ported Fund in this case to be a similar gratuity. Although the Respondent has supported the Fund for many years, it has done so at its own discretion, exercising exclusive control over the amounts it ex- pends and the activities it sponsors. The sums it grants are not given to individual employees, but to i i 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 Nation- al 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 " 1 270 NLRB 22 (1984) GETTY REFINING CO group activities, and are not computed on the basis of employee performance or seniority or any em- ployment-related factor.2 Consequently, I do not consider the Fund part of the employees' remu- neration or within the scope of the bargaining obli- gation, and the Respondent is not required to fur- nish the Union information about the Fund's oper- ation. For these reasons I find that the Respondent has not violated Section 8(a)(5) and (1) and, according- ly, I dissent. 2 The cases cited by the majority lend no support to their finding that the Fund became an employment condition Those cases involved em- ployee bonuses, which, as the Board pointed out in Benchmark, have a more obvious connection to the employees ' remuneration than an item, such as the Fund , which does not involve direct cash payments to em- ployees but rather results in, at best, an indirect and intangible benefit only to those employees who choose to participate in the activities spon- sored by the Fund Equally unpersuasive is the majority's reliance on the fact that the Fund has existed since 1956 For the first 27 years of the Fund' s exist- ence, the Union never requested any information or bargaining about the Fund, and no collective-bargaining agreement contained any provision about the Fund This silence on the part of the Union for such a long period of time indicates the Union's acknowledgment that the Fund was not a bargainable matter In any event, the notion that giving a gift over a period of time establishes a right on the part of the recipient is contrary to some of the most ancient concepts of Anglo-American law APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 927 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Local 8- 898, Oil, Chemical and Atomic Workers Interna- tional Union, AFL-CIO, as the exclusive bargain- ing representative of employees in the Controller's Department Refinery Accounting unit and in the manufacturing department unit, by refusing to fur- nish it relevant information about the Employee Recreation Fund. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, furnish the Union the rele- vant information about the Employee Recreation Fund set out in the Union's letter dated 4 October 1983. GETTY REFINING AND MARKETING Co.