Phillips 66 Company

373 NLRB No. 1 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Phillips 66 Company and Wayne Michael Terrio. Case 15–CA–263723 December 6, 2023 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX On September 16, 2022, Administrative Law Judge An- drew S. Gollin issued the attached decision. The 1 The Respondent has excepted to the judge’s denial of its request to admit a copy of a complaint the Charging Party had filed against the Re- spondent in federal court. It is well established that the Board will affirm an evidentiary ruling of an administrative law judge unless that ruling constitutes an abuse of discretion. See Aladdin Gaming, LLC, 345 NLRB 585, 587 (2005), petition for review denied sub nom. Local Joint Executive Board of Las Vegas v. NLRB, 515 F.3d 942 (9th Cir. 2008). After a careful review of the record, we find no abuse of discretion. 2 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 preponderance of all the relevant evidence convinces us that they are incorrect. Stand- ard 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. In adopting the judge’s finding that the Respondent violated Sec. 8(a)(1) of the Act by enforcing its camera rules to discipline employees Wayne Michael Terrio and Chris Camburn for engaging in protected concerted activity, we agree with the judge, for the reasons he states, that Sec. 10(b) of the Act did not bar the enforcement allegations. We also find that the allegations concerning Camburn are closely related to the timely charge concerning Terrio since Terrio and Camburn were disci- plined for the same conduct under the same camera rules. See, e.g., CSC Holdings, LLC & Cablevision Systems New York City Corp., 365 NLRB No. 68, slip op. at 1 fn. 4 (2017) (amendment to add additional discrim- inatees was not time barred). We further agree with the judge that the employees were engaged in protected concerted activities. In so doing, we rely specifically on the judge’s finding that the employees took pho- tographs with a purpose of avoiding potential disciplinary consequences for parking in unauthorized spaces. We adopt the judge’s finding that the arbitrator’s award upholding Terrio’s discharge is clearly repugnant to the Act and hence deferral to the award would be inappropriate. We find no merit in the Respondent’s contention that the judge must defer to the arbitrator’s finding that Ter- rio’s unfair labor practice allegations were “not credible.” It is well Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief which the Charging Party joined, and the Respondent filed reply briefs. The General Counsel filed cross-exceptions and a supporting brief, which the Charging Party joined, and the Respondent filed an answering brief. The National Labor Relations Board has 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 judge’s rulings,1 findings,2 and conclusions,3 to amend established that resolution of an unlawful discharge allegation is a ques- tion resolved by consideration and weighing of all the relevant evidence, rather than a dispositive credibility determination. See Flagstaff Medical Center, 357 NLRB 659, 665 fn. 19 (2011) (finding that the employer’s motive for terminating an employee could not be resolved by a credibil- ity determination alone), enf. denied on other grounds 715 F.3d 928 (D.C. Cir. 2013). Having adopted the judge’s decision not to defer to the arbitration award on grounds of repugnancy, we decline the General Counsel’s re- quest to overrule United Parcel Service, 369 NLRB No. 1 (2019), at this time. In so doing, we express no view regarding the changes to deferral standards announced in United Parcel Service but agree that deferral to the arbitrator’s award upholding Terrio’s discharge is not proper under extant precedent. We also decline the General Counsel’s request to overrule AT&T Mo- bility, LLC, 370 NLRB No. 121 (2021), at this time. Under AT&T Mo- bility, the remedy for unlawfully applying a facially neutral rule to re- strict Sec. 7 activity is an order to cease and desist. Chairman McFerran dissented in AT&T Mobility and adheres to the views stated there. She nevertheless applies AT&T Mobility for institutional reasons for the pur- pose of determining the remedy in this case. Members Prouty and Wil- cox did not participate in AT&T Mobility and express no view as to whether it was correctly decided. They apply it here as extant Board precedent for institutional reasons. 3 The judge dismissed the complaint’s allegation that the Respondent violated Sec. 8(a)(1) of the Act by maintaining overly broad rules re- stricting employees’ use of cameras. In dismissing this allegation, the judge found the Respondent’s rules to be categorically lawful under The Boeing Co., 365 NLRB No. 154 (2017). Recently, in Stericycle, Inc., 372 NLRB No. 113, slip op. at 11 (2023), the Board rejected the catego- rization of certain types of work rules as always lawful to maintain. In light of our decision in Stericycle, we shall sever and remand this issue to the judge for consideration of the effect of Stericycle on whether the Respondent’s camera-use rules are unlawful. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 the remedy,4 and to adopt the recommended Order as modified and set forth in full below.5 ORDER The National Labor Relations Board orders that the Re- spondent, Phillips 66 Company, Belle Chasse, Louisiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Applying its no-camera/recording policies con- tained in HR-3 and HR-31 to restrict employees in the ex- ercise of their Section 7 rights. (b) Discharging or disciplining employees because they engage in protected concerted activities. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Wayne Michael Terrio full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make Wayne Michael Terrio whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms, suffered as a result of his un- lawful discharge, in the manner set forth in the remedy section of the judge’s decision as amended in this deci- sion. (c) Compensate Wayne Michael Terrio for the adverse tax consequences, if any, of receiving a lump-sum 4 We amend the judge’s remedy in the following respects. In accord- ance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), we shall order the Respondent to compensate Terrio for any other direct or fore- seeable pecuniary harms incurred as a result of the unlawful discharge, including reasonable search-for-work and interim employment expenses, if any, regardless of whether these expenses exceed interim earnings. Compensation for these harms shall be calculated separately from taxa- ble net backpay, with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In addition, we shall order the Respondent to mail a copy of the at- tached notice to all current and former employees employed by the Re- spondent at its Belle Chasse Facility any time since February 10, 2020. “The Board provides for the mailing of individual notices when posting will not adequately inform the employees of the violations that have oc- curred and their rights under the Act.” Bill’s Electric, Inc., 350 NLRB 292, 297 (2007) (internal quotations omitted). The record indicates that the Respondent, subsequent to the discipline of the two employees, con- verted its refinery facility to a midstream terminal and laid off most of its employees. Thus, a traditional notice-posting remedy is insufficient to adequately inform employees of the outcome of this proceeding. See, e.g., Chino Valley Medical Center, 363 NLRB 963, 964 (2016) (finding a notice-mailing remedy was appropriate to effectuate the policies of the Act because “former employees lack[ed] access to the [r]espondent’s fa- cility and [would] not [have] see[n] the posted notice”), enfd. in relevant part 895 F.3d 69 (D.C. Cir. 2018). backpay award, and file with the Regional Director for Re- gion 15, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allo- cating the backpay award to the appropriate calendar year(s). (d) File with the Regional Director for Region 15, within 21 days of the date the amount of backpay is fixed either by agreement or Board order, or such additional time as the Regional Director may allow for good cause shown, a copy of Wayne Michael Terrio's corresponding W-2 form(s) reflecting the backpay award. (e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Wayne Michael Terrio and discipline of Chris Camburn, and within 3 days thereafter, notify the employees in writ- ing that this has been done and the discharge or discipline will not be used against them in any way. (f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated 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, neces- sary to analyze the amount of backpay due under the terms of this Order. (g) Post at its Belle Chasse, Louisiana facility copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms provided by the Regional Director for Re- gion 15, after being signed by the Respondent’s 5 We shall modify the judge’s recommended Order to conform to the Board’s amended remedy, the Board’s standard remedial language, and in accordance with Paragon Systems, Inc., 371 NLRB No. 104 (2022), and Cascades Containerboard Packaging–Niagara, 370 NLRB No. 76 (2021), as modified in 371 NLRB No. 25 (2021), and AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016). We shall substitute a new notice to conform to the Order as modified. 6 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tice must be posted within 14 days after the facility reopens and a sub- stantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted and Mailed by Order of the National Labor Relations Board” shall read “Posted and Mailed Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” PHILLIPS 66 CO. 3 authorized representative, shall be posted by the Respond- ent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of pa- per notices, 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 custom- arily communicates with its employees by such means. The Respondent shall take reasonable steps to ensure that the notices are not altered, defaced, or covered by any other material. (h) Within 14 days after service by the Region, dupli- cate and mail, at its own expense and after being signed by the Respondent’s authorized representative, copies of the attached notice marked “Appendix” to all current and former employees employed by the Respondent at its Belle Chasse facility any time since February 10, 2020. In addition to the mailing of paper notices, 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 em- ployees by such means. (i) Within 21 days after service by the Region, file with the Regional Director for Region 15 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. IT IS FURTHER ORDERED that the complaint allegation that the Respondent violated Section 8(a)(1) by maintain- ing overbroad camera rules is severed and remanded to Administrative Law Judge Andrew S. Gollin for further appropriate action including reopening the record, if nec- essary, and the preparation of a supplemental decision set- ting forth credibility resolutions, findings of fact, conclu- sions of law, and a recommended Order. Copies of the supplemental decision shall be served on all parties, after which the provisions of Section 102.46 of the Board’s Rules and Regulations shall be applicable. Dated, Washington, D.C. December 6, 2023 ______________________________________ Lauren McFerran, Chairman ________________________________________ David M. Prouty, Member ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED AND MAILED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vi- olated 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 bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT apply our no-camera/recording policies contained in HR-3 and HR-31 to restrict you in the exer- cise of your Section 7 rights. WE WILL NOT discharge or discipline you for engaging in protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, offer Wayne Michael Terrio full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or any other rights or privileges previously enjoyed. WE WILL make Wayne Michael Terrio whole for any loss of earnings and other benefits resulting from his un- lawful discharge, less any net interim earnings, plus inter- est, and WE WILL also make him whole for any other direct or foreseeable pecuniary harms suffered as a result of the unlawful discharge, including reasonable search-for-work and interim employment expenses, plus interest. WE WILL compensate Wayne Michael Terrio for the ad- verse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Direc- tor for Region 15, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate cal- endar year(s). WE WILL file with the Regional Director for Region 15, within 21 days of the date the amount of backpay is fixed either by agreement or Board order, or such additional DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 time as the Regional Director may allow for good cause shown, a copy of Wayne Michael Terrio’s corresponding W-2 form(s) reflecting the backpay award. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharge of Wayne Michael Terrio and the unlawful dis- cipline of Chris Camburn, and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the discharge and discipline will not be used against them in any way. PHILLIPS66 COMPANY The Board’s decision can be found at https://www.nlrb.gov/case/ 15-CA-236723 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940 Amiel Provosty, Esq., for the General Counsel. Scott Huffstetler and Erin Kilgore, Esqs., for Respondent. Casey Denson, Esq., for Charging Party. DECISION INTRODUCTION1 ANDREW S. GOLLIN, ADMINISTRATIVE LAW JUDGE. This case was tried on June 15–16, 2022, in New Orleans, Louisiana, over allegations by the General Counsel that Phillips 66 Company (Respondent) violated Section 8(a)(1) of the National Labor Re- lations Act (Act) by: (1) maintaining two overly broad no-cam- era/recording policies (HR-3 and HR-31); and (2) enforcing those policies to discipline Chris Camburn and to discharge Wayne Michael Terrio for engaging in protected activity when 1 Abbreviations used in this decision are as follows: Transcript cita- tions are “Tr.”; General Counsel’s exhibits are “GC Exh.”; Respondent’s exhibits are “R Exh.”; and Joint exhibits are “Jt. Exh.” Although I have included several citations to the record to highlight particular testimony or exhibits, my findings and conclusions are based not solely on that ev- idence, but rather on my review and consideration of the entire record. 2 The Findings of Fact are a compilation of the stipulated facts, cred- ible testimony, and other evidence, as well as logical inferences drawn therefrom. To the extent testimony contradicts with the findings herein, such testimony has been discredited, either as in conflict with credited evidence or because it was incredible and unworthy of belief. In as- sessing credibility, I primarily relied upon witness demeanor. I also con- sidered the context of the testimony, the quality of their recollection, they photographed contractor vehicles parked in employee-des- ignated spots. Respondent, in its amended answer(s), denies the alleged violations and raises various affirmative defenses, in- cluding that: (1) the charges were untimely; (2) the allegations should be deferred; (3) the policies were facially neutral and sup- ported by legitimate business justifications; and (4) the adverse actions were not in retaliation for protected activity but rather the lawful application of the policies at issue. For the reasons discussed below, Respondent’s maintenance of the policies was lawful, but its enforcement of those policies to discipline/discharge Camburn and Terrio was not. While an employer may maintain these categories of policies for legiti- mate business purposes under extant Board law, it may not apply them to restrict protected concerted activity. Camburn and Terrio were engaged in protected concerted activity when they photo- graphed contractor vehicles parked in employee-designated spots to provide security with information to get those vehicles moved and have those spots available for employees to park and, thus, avoid any potential adverse action for not parking in ap- proved spots. FINDINGS OF FACT2 A. Jurisdiction Respondent is a diversified energy company that refines, transports, and sells oil internationally. (Jt. Exh. 10.) In February 2020, Respondent operated 11 refineries in the United States, in- cluding the Alliance Refinery in Belle Chasse, Louisiana (“Re- finery”) where it processed crude and made gasoline and other products. At all material times, Respondent derived gross reve- nues in excess of $100,000 annually and purchased and received goods and materials in excess of $5000 annually from outside the State of Louisiana. Based on the foregoing, I conclude Re- spondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act, and it would be appropriate to assert jurisdic- tion herein. B. Alleged Unfair Labor Practices 1. Background In February 2020, there were approximately 500 employees working at the Refinery. Of those, approximately 250 were part of the bargaining unit represented by the United Steelworkers Local 13-447 (Union). (Jt. Exh. 10.) Respondent and the Union are parties to a collective-bargaining agreement effective from August 15, 2019, to August 15, 2022 (CBA). (Jt. Exh. 1.) Arti- cle 23 of the CBA allows Respondent to promulgate working testimonial consistency, the presence or absence of corroboration, the weight of the respective evidence, established or admitted facts, inherent probabilities, and reasonable inferences that may be drawn from the rec- ord as a whole. See Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Auto- motive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. sub nom., 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all- or-nothing propositions. Indeed, nothing is more common in judicial de- cisions than to believe some, but not all, of a witness’s testimony. Daikichi Sushi, supra at 622; Jerry Ryce Builders,352 NLRB 1262, 1262 fn. 2 (2008) (citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), rev’d. on other grounds 340 U.S. 474 (1951)). PHILLIPS 66 CO. 5 rules and states that failure to obey those rules is cause for disci- pline. Article 24 of the CBA sets forth the grievance and arbi- tration procedures, which provides for final and binding arbitra- tion of contractual grievances. In February 2020, Ray Rigdon was the refinery manager who oversaw all departments and personnel. Under Rigdon was Da- vid Lummus, the maintenance and reliability department man- ager. Under Lummus was instrument superintendent Bill Her- wehe, and under him was instrument superintendent Mark Scar- dino. Ann Janson was the human resources business partner manager. Heather Descant was a human resource business part- ner. At all material times, these individuals were admitted su- pervisors and agents of Respondent within the meaning of Sec- tion 2(11) and (13) of the Act. Wayne Michael Terrio and Chris Camburn worked at the Re- finery as first-shift instrument technicians in the maintenance and reliability department. Both were part of the bargaining unit. They reported to Mark Scardino. Beginning in early January 2020, Respondent was executing a “turnaround” at the Refinery, which is a large-scale repair and replacement of equipment and parts. Respondent used both unit employees and independent contractors to perform this work. (Jt. Exh. 10.) For this turnaround, there were approximately 2,000 independent contractors working at the Refinery. (Tr. 485–486.) 2. Layout, Access, and Parking The Refinery is a port facility located on approximately 2,400 acres along the Mississippi River. (Jt. Exh. 10.) It is covered under the Maritime Transportation Safety Act (MTSA)3 and its accompanying regulations, 4 which were enacted to protect the nation’s ports and waterways from a terrorist attack. As a cov- ered entity, Respondent was required to develop and implement a security plan. Its plan included installing a chain link fence with barbed wire around the entire property, setting up restricted access gates, implementing screening/credentialling processes and check-in/search procedures, and employing personnel to monitor and secure the property 24-hours a day, 7 days a week. From at least July 1, 2019, through February 12, 2020, Respond- ent contracted with a third-party vendor, Securitas, to handle se- curity at the Refinery. (Jt. Exh. 10). Securitas guards were sta- tioned at critical points throughout the property. Access to the Refinery was restricted. There were two access gates off the state highway bordering the property. Inside the entry gates was a separate fenced-in area surrounding the process areas. The process areas contained highly combustible and haz- ardous materials. To gain access to the process areas, authorized individuals had to pass through a second gate (called the “pro- cess gate”). Persons entering the Refinery had to have a Trans- portation Worker Identification Credential (TWIC) card issued by the U.S. Transportation Security Administration, or they had to be escorted by someone with a TWIC card. Visitors were 3 46 U.S.C. §§ 70101 et. seq. 4 33 C.F.R. §§ 101-107 (Subchapter H Maritime Security). 5 HR-3 allows exempt/salaried employees to use camera and/or video equipment to complete routine work tasks and assignments, including photos used to document equipment conditions, equipment reliability required to watch safety and security videos before being al- lowed access. There was a large “L” shaped parking lot surrounding the pro- cess areas. At the northeast corner of the lot were four or five aisles of paved parking spots with signs designating them to be for Refinery employees only. In the northeast corner of this em- ployee-designated portion of the lot was an unpaved area con- taining rocks or shells. No one was to park in this area of the lot. There also was a designated parking spot for the “observer of the month.” The remainder of the lot to the south and west of the employee-designated area was paved parking with signs indicat- ing that contractors could park there. Employees were also per- mitted to park, but those spots were farther away from the turn- stiles employees passed through to enter their work areas. Hence, employees preferred to park in the employee-designated area of the lot. To access the parking lot near the process areas, security is- sued employees and contractors parking permits/passes that had to be displayed on their vehicles. (GC Exh. 5). Contractor vehi- cles were distinguishable from employee vehicles, in part, based on their parking permit/pass. Employees had to display theirs on the windshield of their vehicle, and contractors had to hang theirs on the review mirror of their vehicle. Under Respondent’s Ve- hicular/Pedestrian Safety Procedure, motor vehicles could only park in authorized areas and in such a manner that pedestrian walkways, bicycle lanes, and vehicular traffic lanes were kept clear and unrestricted. No vehicles were permitted to park in roadways adjacent to the process areas unless authorized to so do by the area supervisor. (GC Exh. 3, pg. 3.) The Vehicular/Pe- destrian Safety Procedure states that security personnel (Securi- tas) were responsible for enforcing the driving/parking rules and could issue citations for non-compliance. It further states that management will enforce disciplinary action against employees for noncompliance. (GC Exh. 3, pg. 5.) Terrio testified that on July 18, 2019, security left a citation on his vehicle when he parked in the unpaved portion of the lot. (Tr. 150–152.) Camburn testified he saw citations on vehicles parked in the lot two or three times prior to February 2020. (Tr. 282–283.). There is no evidence in the record that management disciplined an employee for failing to comply with the driv- ing/parking rules. 3. No-Camera Policies Respondent maintained a Photograph, Camera & Video Pol- icy, also referred to as HR-3, which regulated the use of cam- eras/video equipment within the Refinery and the release of any photos/videos taken. (Jt. Exh. 2.) Under this Policy, non-ex- empt/hourly employees were required to complete a form and obtain approval from management before using a camera or video equipment.5 According to the Policy itself, the primary purpose was “to prevent any proprietary information from leav- ing the property and to prevent any photographic image of the [Refinery] from being used in advertisements or articles without issues, engineering analysis, document accident or incident scenes, de- velop work packages, develop bid packages, etc. Salaried exempt em- ployees are not required to have an approval form to support this type of routine activity. (Jt. Exh. 2.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 the express written consent from [management.]” (Jt. Exh. 2.)6 The policy also was intended to ensure the cameras or video equipment were used in a safe manner and to protect the security of the Refinery by limiting what can be photographed/recorded. (Tr. 388–389; 481–482.)7 Respondent also maintained its Rules of Conduct, referred to as HR-31. Section 5.0(S) of these Rules contains a General Con- duct Rule stating that: Electronic Devices: Occasional personal use (for example, a five-minute phone call in a two-hour period) of electronic de- vices is acceptable only in parking areas, kitchens, break rooms, designated smoking areas, and office buildings as long as, the activity does not create an unsafe work condition, [dis- tract] from the employee’s roles and responsibilities, and/or disrupt/disable company network capabilities. Use of author- ized company electronic devices is permitted for approved work activities (for example, operator electronic rounds). The following are prohibited: a. Use of personal devices at consoles or in operating unit areas. b. Having energized, unauthorized devices in an elec- trically classified area. c. Excessive personal, non-business telephone conver- sations (company or personal phones), and/or texting d. Use of any type of personal camera (example: cell phone camera, digital camera, video camera, etc.), unless used within specific scope of work for documentation purposes in non-pro- cessing areas (example: taking photo of white board drawing post-meeting in an office building). (Jt. Exh. 3)(emphasis added). The Refinery had signs and other notifications throughout the property that unauthorized photography or video recording was prohibited. 4. Terrio and Camburn Disciplined for Photographing Contractor Vehicles At times during the turnaround, Terrio and Camburn were un- able to find approved parking in the employee-designated area of the lot because contractors were parking there. Terrio raised this with his supervisor, Mark Scardino, and asked if security could block the contractors from parking in those spots. (Tr. 290–291.) Camburn and other employees were present when Terrio raised this, and Scardino stated he would check into it. (Tr. 292.) On the morning of February 7, 2020, Terrio and Camburn each arrived for work and were unable to find available parking in the paved section of the employee-designated area. Camburn eventually parked in the unpaved area of rocks and shells, and Terrio parked in the space designated for the “observer of the month” even though he was not the observer of the month. 6 In February 2021, Respondent revised HR-3. The revisions do not materially alter the restrictions, in that hourly employees still needed written approval from management before taking photographs/videos. (GC Exh. 4(a) and (b)). Later that morning, Camburn and Terrio saw an email sent by second shift superintendent Kyle Sampey the night before to all employees and contractors. The message stated, “If you park in the shell area outside the turnstiles, you must move your vehicle to a regular parking spot after relief.” (GC Exh. 7.) Scardino allowed Terrio and Camburn to go and move their cars. At ap- proximately 7:41 a.m., Camburn and Terrio left the process area together in one of the company’s all-terrain vehicles (“ATV”) to move their vehicles. When they arrived in the lot, there still were no spots available in the paved portion of the employee-desig- nated area. While looking for spots, Terrio and Camburn noticed contractor vehicles parked in employee-designated spots. When they saw one of these vehicles, Camburn would use Terrio’s cell phone camera to take a close-up photograph of the vehicle’s parking pass/permit and license plate. (R. Exh. 15.) They pho- tographed about five vehicles. At about 7:52 a.m., a security guard approached them and asked what they were doing. Cam- burn and Terrio explained they were taking photographs of con- tractor vehicles parked in employee-designated spots to give to security to then get the contractors to move their vehicles. The guard stated she was already aware and had contacted the con- tractors about moving their vehicles. Following this conversa- tion, Camburn and Terrio then drove the ATV back to the pro- cess area and returned to work at around 8:03 a.m. (R. Exhs. 14– 16.) Securitas later notified Respondent about the incident. Hu- man resource business partner Heather Descant was assigned to investigate. As part of her investigation, she reviewed surveil- lance video and still photographs of Terrio and Camburn driving around the lot. She then interviewed Camburn and Terrio, sepa- rately. Mark Scardino and a union steward were present for both interviews. (R Exhs. 17 and 18.) Descant interviewed Camburn first. She began by asking him to explain what he and Terrio were doing in the parking lot that morning. Camburn told her that when he arrived for work that morning he had to park in the shells/rocks because there were no spots available in the paved portion of the employee-designated area. After he saw Sampey’s email he went out to move his car, but there still were no spots available. When he and Terrio saw contractor vehicles in those spots, he used Terrio’s cell phone to take a photo of their parking pass/permit to give to security, but the security guard told them she had already contacted the indi- viduals to move their vehicles. Descant then asked Camburn to produce the authorization form allowing him to take the photos. He said he did not have one. She then asked what his “business reason” was for taking the photos. According to her notes, Cam- burn said it was “[t]o give security something to use to make contact with people parked in [employee-reserved] spots.” When Descant asked Camburn if he had taken photographs in the past, he said he had not. He would simply tell and point out for security when there were contractor vehicles parked in the employee-designated spots. (R Exh. 18.) 7 Certain mobile devices can act as ignition sources if used around highly combustible materials. To eliminate this risk, Respondent ac- quired cellular phones, iPads, and other devices proven not to pose this risk. PHILLIPS 66 CO. 7 Descant then met with Terrio. She began by asking him to explain what he and Camburn were doing in the parking lot that morning. After Terrio explained what they were doing, Descant asked him if he had reported issues like this in the past. Terrio stated he had, and that he was told that because security cannot be everywhere at once employees should get the license plates and tags of the vehicles and report them to security. Descant then asked to see the photos he and Camburn took. Terrio showed her the photos from his phone. Descant then asked Ter- rio to email her those photos, which he later did. She then asked Terrio for a copy of his camera authorization form. Terrio said he did not have one and thought that only applied to photos taken in the processing area. Descant then asked Terrio what his “busi- ness reason” was for taking the photos. He explained it was to provide them to security so they could notify the contractors. Terrio asked Descant why this was such a big deal, and Descant told him there were policies against taking photos. Terrio re- sponded they had taken photos in the lot “forever” to give to se- curity. (R Exh. 17.) Based on the investigation, Descant concluded that Camburn and Terrio violated HR-3 and HR-31. Descant prepared a writ- ten report and informed management of the findings and conclu- sions. (R Exh. 7.) Manager Lummus reviewed the information and made the disciplinary decisions at issue. He decided that because Camburn and Terrio had violated the General Rule of Conduct, they should each receive one disciplinary step under Respondent’s progressive disciplinary policy. Camburn had no active discipline at the time, so he was issued a verbal warning. Terrio, on the other hand, had several active disciplines, includ- ing a September 2018 final warning with suspension, so the next step for him was termination. Both were notified by letter. The letters stated they had vio- lated company policies, but the specific policies were not identi- fied. The letters went on to state that each had acknowledged photographing cars in the parking lot on February 7 while on company time, and they were “neither authorized to use a camera nor had any business reason for [their] actions.” Terrio’s letter was dated February 10, 2020, and Camburn’s letter was dated February 12, 2020. (Jt. Exhs. 5 and 6). In August 2021, Hurricane Ida made landfall in south Louisi- ana and caused significant damage to the Refinery. (Tr. 461). In November 2021, Respondent notified its employees that the Re- finery would be converted into a midstream terminal, and there would be permanent layoffs that resulted from this conversion. (Tr. 462-463). The conversion was completed on April 30, 2022, and the Refinery was closed. (Tr. 463). As of that date, the Re- finery policies, including HR-3 and HR-31, were rescinded. (Tr. 463). C. Procedural History The Union filed a grievance over Terrio’s termination but took no action over Camburn’s verbal warning. (R. Exh. 19). On March 9, 2020, Respondent denied Terrio’s grievance at Step III. (R. Exh. 20). Two days later, the Union filed for arbitration. (R. Exh. 21). On July 27, 2020, Terrio filed his original unfair labor practice charge alleging Respondent violated Section 8(a)(1) and (3) of the Act on or since February 10, 2020, when it discharged Terrio in retaliation for and/or to discourage union and protected con- certed activities. (GC Exh. 1(a)). On September 17, the Re- gional Director for Region 15 deferred the charge in accordance with the Board’s policy under Dubo Manufacturing Co., 142 NLRB 431 (1963). The arbitration hearing was held before ar- bitrator Russell E. Bergstedt, Jr. on December 10. On December 29, the Regional Director notified the parties she was extending the deferral an additional 90 days. (R. Exh. 23.) On February 24, 2021, Arbitrator Bergstedt issued his deci- sion denying the grievance. He found that Respondent had the contractual right to discipline Terrio for cause because he know- ingly failed to follow HR-3 and HR-31 when he and Camburn drove an ATV through the aisles of the parking lot and took pho- tos of contractors’ vehicles parked where Respondent’s employ- ees would normally park. (Jt. Exh. 8). Arbitrator Bergstedt spe- cifically held that: The charge filed with the NLRB alleging retaliation for [Terrio’s] union and/or protected concerted activities is not credible. Terrio for most of his employment at the Refinery was not a dues-paying member of the Union and never held a Union office. His union activities involved filing two grievances when issued discipline in January 2018 and Sep- tember 2018 and being granted an excused day to testify at an arbitration hearing where he was never called as a wit- ness[.] Terrio testified he had complained about a supervi- sor “punching a wall” in frustration when Terrio stopped a job and had issues with his disability leave in 2015-2016. The Company presented none of these were considered when issuing [Terrio] a one-step discipline for violating a General Rule of Conduct. I find no credible evidence that the Company retaliated against Terrio, nor that his termina- tion was the result of his engaging in protected union activ- ities. (Jt. Exh. 8, pp. 14–15). On April 16, 2021, the Regional Director notified the parties she was revoking deferral and resuming processing of Terrio’s unfair labor practice charge. (Jt. Exh. 9). On April 26, Terrio filed his first-amended unfair labor practice charge. (GC Exh. 1(c)). It alleges that Respondent violated Section 8(a)(1) and (3) on or since February 10, 2020, by: (1) discriminating against Terrio by discharging him in retaliation for and/or to discourage union activities and/or protected concerted activities; (2) main- taining an unlawfully overbroad rule against employee photog- raphy; and (3) discharging Terrio due to application of an unlaw- fully overbroad rule against employee photography. On July 28, 2021, Terrio filed his second-amended unfair la- bor practice charge. (GC Exh. 1(e)). It alleges that Respondent violated Section 8(a)(1) on or since around February 10, 2020, by: (1) discriminating against Terrio by discharging him in retal- iation for engaging in protected concerted activities; (2) main- taining an unlawfully overbroad rule against employee photog- raphy; (3) discharging Terrio due to an unlawful application of a rule against employee photography toward employee’s protected converted activities; (4) disciplining Camburn by disciplining him for engaging in protected concerted activities; and (5) disci- plining Camburn due to an unlawful application of rules against DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 employee photography toward employee’s protected concerted activities. The 8(a)(3) allegation(s) were removed. On October 29, 2021, the Regional Director, on behalf of the General Counsel, issued the complaint and notice of hearing in this case, alleging Respondent violated Section 8(a)(1) of the Act on or since around February 10, 2020 by: (1) maintaining HR-3 and HR-31; (2) discriminating against Terrio and Camburn be- cause they engaged in protected concerted activity by taking the photographs of the contractor vehicles; and (3) enforcing HR-3 and HR-31 to discharge Terrio and discipline Camburn because they engaged in protected concerted activity. (GC Exh. 1(g)). On November 12, Respondent filed its answer denying the alleged violations and asserting various affirmative defenses. (GC Exh. 1(i)). On January 4, 2022, the Regional Director, on behalf of the General Counsel, issued the amendment to complaint to specifi- cally allege that HR-3 and HR-31 are overly broad. (GC Exh. 1(m)). On January 18, Respondent amended its answer and filed an answer to the amendment to complaint. (GC Exh. 1(s)). On March 1, Respondent again amended its answer and affirmative defenses. (GC Exh. 1(ee)). At the hearing, all parties were afforded the right to call and examine witnesses, present any relevant documentary evidence, and argue their respective legal positions. The General Counsel, Respondent, and Charging Party filed post-hearing briefs, which I have carefully considered. DISCUSSION A. Timeliness of Charges Respondent contends the allegations are untimely under Sec- tion 10(b) of the Act. Section 10(b) requires that unfair labor practice charges be filed and served within 6 months of the al- legedly unlawful conduct. However, a complaint may be amended to allege conduct occurring outside the 10(b) period if the conduct occurred within 6 months of a timely filed charge and is “closely related” to the allegations of the charge. Redd-I, Inc., 290 NLRB 1115 (1988), as clarified by Carney Hospital, 350 NLRB 627 (2007). To determine if an otherwise untimely allegation is closely related to the timely charge, the Board: (1) considers whether the otherwise untimely allegations involve the same legal theory as the allegations in the timely charge; (2) con- siders whether the otherwise untimely allegations arise from the same factual situation or sequence of events as the allegations in the timely charge (i.e., the allegations involve similar conduct, usually during the same time period, and with a similar object); and (3) may look at whether a respondent would raise the same or similar defenses to both the otherwise untimely and timely al- legations. Redd-I, Inc., 290 NLRB at 118.8 Respondent has the burden of proving untimeliness. Midwest Terminals of Toledo, 8 In Carney Hospital, the Board held the second prong is satisfied “where the two sets of allegations demonstrate similar conduct, usually within the same time period with a similar object, or there is a causal nexus between the allegations and they are part of a chain or progression of events, or they are part of an overall plan to undermine union activity.” 350 NLRB at 630 (internal quotations and footnotes omitted). The Board also clarified the third prong was not a mandatory part of the test. Id. at 628 fn. 8. 365 NLRB No. 158, slip op. at 15-16 (2017), enfd. 783 Fed.Appx. 1 (D.C. Cir. 2019). Respondent argues the theories in the charges and the com- plaint evolved over time, making the allegations untimely. In the original charge, Terrio alleged Respondent discharged him in re- taliation for and/or to discourage union and protected concerted activities. At the arbitration, Terrio was asked by Respondent’s counsel to list the protected activities for which he contended he had been retaliated. Terrio referenced his participation in griev- ances the Union filed on his behalf, attendance at an arbitration over a co-worker’s discharge grievance, and internal complaints made regarding alleged workplace violence and alleged mistreat- ment during medical leaves. Terrio was given the opportunity to identify any other protected concerted activity relied upon to support the charge, and he offered none.9 Respondent argues it was not until after the arbitrator issued his decision that Terrio began claiming he was discharged for his protected activity of taking the photographs of the contractor vehicles on February 7, and this change in legal theories is an impermissible and un- timely attempt at getting a second bite at the apple. I reject this argument. The fact that the parties and the arbitrator focused on Terrio’s prior union activities, and not his activity on February 7, in evaluating his protected activity does not foreclose Terrio or the General Counsel from asserting that activity was an un- lawful basis for disciplining/discharging him. Terrio filed a timely charge broadly alleging he was discharged because of his union and protected concerted activity, and that latter allegation was never abandoned, withdrawn, or waived. A charge is not a pleading; its function is “merely to provide the spark which starts the machinery of the Act running.” See Cusano et. al. v. NLRB, 190 F.2d 898, 903 fn. 8 (3d Cir. 1951), enforcing 92 NLRB 1272, 1274 (1951) (original charge over discharge was timely, tolling statute of limitations with respect to that discharge, irrespective of theory upon which the case was ultimately tried). Respondent also argues the allegations regarding the mainte- nance of HR-3 and HR-31 were untimely because they were added more than a year after the adverse actions at issue. I also reject this argument. The Board has held the maintenance of an unlawful work rule or policy is a continuing violation for as long as the rule or policy remains in effect. See e.g., Charter Com- munications, LLC, 366 NLRB No. 46, slip op. at 1 fn. 4 (2018), enfd. 939 F.3d 798 (6th Cir. 2019); and Cellular Sales of Mis- souri, LLC, 362 NLRB 241, 242 (2009); and Lafayette Park Ho- tel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). Respondent maintained the policies at issue through April 30, 2022. As a result, they remained in effect at the time Terrio filed his first and second amended charges alleging the policies to be unlawful. In applying the Redd-I factors, the amended allegations re- garding the enforcement of the policies and the discipline of 9 That is an oversimplification. Terrio described these instances as the basis for why he filed the charge. Respondent’s counsel attempted to lock him in as those being the sole reasons supporting his Board charge. In doing so, counsel asked Terrio if he understood what “pro- tected activity” meant, and Terrio said “not necessarily.” (R. Exh. 24, pg. 217). Respondent’s counsel thereafter focused his questions solely on grievance filing as the protected activity. PHILLIPS 66 CO. 9 Camburn are all closely related to the original allegation regard- ing Terrio. First, they all involve a common legal theory that the maintenance and enforcement of the policies at issue to dis- cipline employees had the tendency to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. See Costco Wholesale Corp., 366 NLRB No. 9 (2018). Respondent disciplined Camburn and discharged Terrio because they vio- lated these policies by taking photographs in the Refinery park- ing lot. As discussed below, the General Counsel contends this conduct amounted to protected concerted activity and, therefore, Respondent’s enforcement was unlawful. Respondent, in its de- fense, asserts it was merely applying lawful policies designed to protect legitimate business interests. Second, the original and amended allegations arise from the same factual situation or sequence of events. Respondent ap- plied the same policies to issue the same one-step discipline to employees engaged in the same conduct at the same time for the same purpose. Hence, there is a clear causal nexus between Re- spondent’s maintenance and enforcement of those policies and the adverse actions at issue. Third, as described below, the test for determining whether the policies violated the Act is, in part, whether they were sup- ported by legitimate business interest(s). As for their enforce- ment, Respondent argues it would have taken the same actions to protect those interests, regardless of any protected activity. In short, the purpose(s) of the policies and their enforcement are relevant to all the allegations. Regardless, even if Respondent would raise dissimilar defenses to the amended allegations, the evidence on the other two factors is sufficiently strong to satisfy the closely related test. See Carney Hospital, supra. The Earthgrains Co., 351 NLRB 733, 737 (2007). Based on the foregoing, I conclude the original and amended allegations are timely and not barred under Section 10(b) of the Act. B. Maintenance and Enforcement of HR-3 and HR-31 Section 8(a)(1) prohibits an employer from interfering with, restraining or coercing employees in the exercise of their rights under Section 7 of the Act. Section 7 protects the right of em- ployees to engage in “concerted activity” for the purpose of col- lective bargaining or other mutual aid or protection. For activity to be “concerted,” it must be engaged in with or on the authority of other employees, and not solely by and on behalf of the em- ployee himself. Meyers Industries (Meyers I), 268 NLRB 493 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), on remand Meyers Industries (Meyers II), 281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). The “mutual aid or protection” clause focuses on the goal of concerted activity, specifically whether the em- ployee or employees involved are seeking to improve their terms and conditions of employment or otherwise improve their lot as employees. Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). 10 Under Lutheran Heritage Village-Livonia, the rule or policy was unlawful if it explicitly restricted Sec. 7 rights. If it did not, it would still be unlawful if: (1) employees would reasonably construe the language to 1. Maintenance Allegation An employer violates Section 8(a)(1) when it maintains work- place rules or policies that would reasonably tend to chill em- ployees in the exercise of their Section 7 rights. See Lafayette Park Hotel, 326 NLRB at 825. In Boeing Co., 365 NLRB No. 154 (2017), the Board set out the current standard for determin- ing whether a facially neutral work rule or policy, reasonably in- terpreted, would unlawfully interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. In doing so, the Board overruled the “reasonably construe” prong delineated in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).10 Boeing, slip op. at 1-2. Under Boeing, when evaluating a facially neutral policy, rule or handbook provision, the Board will evaluate two things: (i) the nature and extent of the potential impact on statutory rights, and (ii) legitimate justifications associated with the rule. Boeing, slip op. at 3. In conducting this evaluation, the Board balances the employer’s business justifications against the extent to which the rule or policy, viewed from the perspective of reasonable em- ployees, interferes with employee rights under the Act. Id. Ulti- mately, the Board places challenged rules into one of three cate- gories: • Category 1 will include rules that the Board designates as law- ful to maintain, either because (a) the rule, when reasonably in- terpreted, does not prohibit or interfere with the exercise of stat- utory rights; or (b) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. • Category 2 will include rules that warrant individualized scru- tiny in each case as to whether the rule, when reasonably inter- preted, would prohibit or interfere with the exercise of statutory rights, and if so, whether any adverse impact on statutorily pro- tected conduct is outweighed by legitimate justifications. • Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit stat- utorily protected conduct, and the adverse impact on statutory rights is not outweighed by justifications associated with the rule. Id., slip op. at 3-4. These categories “represent a classification of results from the Board’s application of the new test” and “are not part of the test itself.” Id., slip op. at 4 (emphasis in original). In LA Specialty Produce Co., 368 NLRB No. 93 (2019), the Board clarified the burdens under this classification scheme. The General Counsel has the initial burden to prove that a fa- cially neutral rule or policy would, when read in context, be in- terpreted by a reasonable employee as potentially interfering with the exercise of Section 7 rights. Id., slip op. at 2. If the General Counsel fails to meet this initial burden, the Board does prohibit Sec. 7 activity; (2) the rule or policy was promulgated in re- sponse to protected activity; and/or (3) the rule or policy has been applied to restrict the exercise of Sec. 7 rights. 343 NLRB at 647. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 not need to address the employer’s legitimate justifications for the rule. Instead, the rule is lawful and fits within Category 1(a). Conversely, if the General Counsel does meet the initial burden of proving that a reasonable employee would interpret a rule as potentially interfering with the exercise of Section 7 rights, the Board will then balance that potential interference against the employer’s legitimate justifications for the rule. Id., slip op. at 3. When the balance favors general employer interests, the rule at issue will be lawful and will fit within Category 1(b). When the potential interference with Section 7 rights generally outweighs any possible employer justification, the rule at issue will be un- lawful and will fit within Category 3. Finally, “in some instances, it will not be possible to draw any broad conclusions about the legality of a particular rule because the context of the rule and the competing rights and interests involved are specific to that rule and that employer”; such rules will fit within Category 2. Id. In Boeing, the Board considered a rule that prohibited employ- ees from using camera-enabled devices to capture photos and video without a valid business need and an approved camera per- mit. Applying the new framework, the Board found that Boeing’s no-camera rule “may potentially affect the exercise of Section 7 rights, but this adverse impact is comparatively slight.” 365 NLRB No. 154, slip op. at 17. The Board then found the rule served compelling employer interests in safeguarding proprie- tary secrets and classified information stemming from Boeing’s federal defense contracts. Id., slip op. at 17-18. The Board con- cluded that Boeing’s legitimate interests served by the no-cam- era rule far outweighed the adverse impact of the rule on em- ployees’ exercise of their Section 7 rights. Id., slip op. at 17. It then stated: “Although the justifications associated with Boe- ing’s no-camera rule are especially compelling, we believe that no-camera rules, in general, fall into Category 1. . . .” Id. More precisely, the Board noted that because rules that, when reason- ably interpreted, do not potentially interfere with the exercise of Section 7 rights belong in Category 1(a), and because the Board 11 The Board in Boeing addressed the rules in Flagstaff Medical Cen- ter, 357 NLRB 659 (2011), and Rio All-Suites Hotel & Casino, 362 NLRB 1690 (2015). In Flagstaff, the employer prohibited the use of cam- eras to record images of patients or hospital equipment, property, or fa- cilities; and the Board found that rule lawful. 357 NLRB at 662-663. In Boeing, the Board reaffirmed that finding, explaining that the hospital’s “substantial patient confidentiality interests” outweighed the “compara- tively slight” potential interference with Section 7 rights. 365 NLRB No. 154, slip op. at 19 fn. 89. Rio All-Suites involved a no-camera rule and a no-recording rule. The no-camera rule provided that “[c]amera phones may not be used to take photos on property without permission from a Director or above,” and “[c]ameras, any type of audio-visual recording equipment and/or recording devices may not be used unless specifically authorized for business purposes (e.g. events).” 362 NLRB at 1692. An- alyzing these rules, the majority found them unlawful. Id. at 1692-1694. The Board in Boeing overruled Rio All-Suites in relevant part for the rea- sons stated therein. The Board in Boeing placed the rules in Flagstaff and Rio All-Suites in Category 1(b), as with the rule in Boeing itself. Id., slip op. at 3-4. And as the Board made clear in Boeing, and in subsequent cases, the classification is a “classification of types of rules.” LA Specialty Pro- duce, 368 NLRB No. 93, slip op. at 2; see Boeing, 365 NLRB No. 154, slip op. at 15. Thus, Boeing held not only that the no-camera and no- recording rules in Boeing, Flagstaff, and Rio All-Suites were lawful found that Boeing’s no-camera rule does potentially interfere with the exercise of those rights, the Board in Boeing necessarily placed no-camera/no-recording rules in Category 1(b). Id.11 See also AT&T Mobility LLC, 370 NLRB No. 121, slip op. at 2–3 (2021); BMW Manufacturing Co., 370 NLRB No. 56, slip op. at 4 (2020). The General Counsel concedes that under Boeing, HR-3 and HR-31 are facially neutral and lawful policies. Like in Boeing, Respondent has presented evidence and articulated business jus- tifications for maintaining these policies. First, they protect pro- prietary, confidential and/or trade secret information related to the company’s refining equipment configurations, processes, and technologies. Lummus testified this interest applied to the parking lot at issue because of its proximity to the processing area and from where the equipment, configurations, processes, and technologies were visible. Second, the policies protect health and safety. The Refinery is an inherently dangerous place with combustible and hazardous materials in and around the pro- cessing areas, and devices with cameras can be potential ignition sources, which is why Respondent purchased and made available devices that have been tested to be safe. Third, the policies pro- tect the security of the Refinery. As stated, the Refinery is cov- ered under the MTSA and required to institute measures to re- duce the risk of terrorism. Respondent states photography is pro- hibited, including in the parking lots, because if someone took photographs that showed where the Refinery stored certain vol- umes of different types of chemicals, different access points, and/or overall security, the threat to the Refinery could increase, and the interest in ensuring the safety and security of the Refin- ery outweigh the relatively slight impact the policies have on em- ployees’ exercise of their Section 7 rights.12 Accordingly, under extant Board law, I conclude HR-3 and/or HR-31 do not violate the Act.13 I, therefore, recommend dismissing the maintenance allegation.14 Category 1(b) rules, but that no-camera/recording rules as types belong in that category. 12 Respondent also argues a purpose of the policies was to ensure em- ployees were working within their scope of work while on company time. I reject this was an intended purpose of these blanket prohibitions. HR-31 makes clear that “occasional personal use” of electronic devices is acceptable in parking areas, kitchens, break rooms, designated smok- ing areas, and office buildings as long as, the activity does not create an unsafe work condition, distract from the employee’s roles and responsi- bilities, and/or disrupt/disable company network capabilities. Thus, “oc- casional” use appears permissible regardless of whether the employee is on “company” time or not. 13 The General Counsel argues for overruling Boeing and returning to the prior standard for evaluating neutral work rules set forth in Lutheran Heritage Village-Livonia. It is well settled that administrative law judges are bound to follow Board precedent which neither the Board nor the Supreme Court has reversed, notwithstanding contrary decisions by courts of appeals or district courts. Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984); Pathmark Stores, Inc., 342 NLRB 378 fn. 1 (2004). In Steri- cycle, Inc., 371 NLRB No. 48 (2021), the Board invited briefs from in- terested parties and the public on whether the Board should adopt a new legal standard to apply in cases where an employer’s maintenance of a facially neutral work rule is alleged to violate the Act. 14 Respondent argues that even if the policies were found to be unlaw- ful the allegations are moot because the Refinery has since closed and, PHILLIPS 66 CO. 11 2. Enforcement Allegation The Board recently held that while an employer may lawfully maintain policies prohibiting photography and recording based on legitimate business justifications, it may not apply those pol- icies to restrict protected concerted activity. See AT&T Mobility LLC, supra slip op. at 4 (citing Valley Hospital Medical Center, 351 NLRB 1250, 1254 (2007) (“[E]mployees engaged in [pro- tected concerted] activity generally do not lose the protection of the Act simply because their activity contravenes an employer’s rule or policies.”), enfd. sub nom. Nevada Service Employees Union, Local 1107, SEIU v. NLRB, 358 Fed. Appx. 783 (9th Cir. 2015)). In AT&T Mobility, the Board held the employer lawfully maintained a rule prohibiting employees from recording tele- phone or other conversations without advance approval from the employer’s legal department, but it violated Section 8(a)(1) when a supervisor threatened to apply the rule to a union steward because he made an audio recording of a unit employee’s termi- nation meeting. In reaching this conclusion, the Board held the steward was engaged in protected activity at the time because he was recording the meeting to police the parties’ collective-bar- gaining agreement and to preserve evidence for use in the event of a grievance. Moreover, although the policy was soundly based on statutory and regulatory duties to safeguard customer information, the meeting was held for the sole purpose of effec- tuating a discharge decision that had already been made, and the with the closure, the policies have been rescinded. In Passavant Memo- rial Area Hospital, 237 NLRB 138 (1978), the Board held an employer may relieve itself of liability for unlawful conduct by repudiating the vi- olative conduct. However, to be effective, such repudiation must be “timely,” “unambiguous,” “specific in nature to the coercive conduct,” and “free from other proscribed illegal conduct...” Further, there must be adequate publication of the repudiation to the employees involved and there must be no proscribed conduct on the employer’s part after the pub- lication. And, finally, the Board has pointed out that such repudiation or disavowal of coercive conduct should give assurances to employees that in the future their employer will not interfere with the exercise of their Section 7 rights. There was no evidence presented that Respondent took any of these steps. See also Boch Imports, Inc., 362 NLRB 706, slip op. 1 fn. 3 (2015), enfd. 826 F.3d 558 (1st Cir. 2016) (rescission of overly broad handbook policies that restricted protected activity insufficient to constitute effective repudiation). 15 In reaching this conclusion, the majority concluded the rule at issue did not need to be rescinded. In so holding, it overruled the “applied to restrict” prong in the Lutheran Heritage Village-Livonia test in which the Board generally finds that work rules that have been enforced to in- terfere with employees’ Section 7 rights are also unlawful to maintain and must be rescinded as part of a remedial order. The majority con- cluded that this “applied to restrict” prong conflicts with the Boeing anal- ysis by ignoring legitimate interests of employers in maintaining lawful work rules. As a result, this prong has been used to invalidate otherwise lawful work rules based on a single instance of unlawful application. The majority further explained that the remedy for “applied to restrict” vio- lations—that is, rescission and republication of rules — is unnecessary and ineffective, given that the rules themselves are lawful under the Act. Instead, the Board will order employers who apply lawful work rules to interfere with protected rights to address the violation through a posted remedial notice informing employees that it will no longer apply that rule to interfere with Section 7 rights. Dissenting in part, Chairman McFerran agreed that the employer un- lawfully applied the policy when it warned the steward for his protected activity, but she would find the policy was unlawfully overbroad. She employer did not contend that the private customer information -- such as names, addresses, account numbers, credit infor- mation, Social Security numbers, call patterns or usage – that the rule was designed to protect was or was likely to be mentioned during the meeting. Accordingly, there was no evidence the re- cording the steward made implicated the statutory or regulatory requirements. Under these circumstances, the Board found the employer unlawfully applied the no-recording policy, or, more accurately, threatened to apply the policy, because the steward’s sole act of not following the policy was while engaging in pro- tected activity.15 AT&T Mobility, supra slip op. at 4.16 The primary issue is whether Respondent applied HR-3 and HR-31 to restrict protected Section 7 activity. Resolution of that issue turns on whether Camburn and Terrio were engaged in pro- tected concerted activity at the time they photographed the con- tractors’ vehicles in the Refinery parking lot. Whether an em- ployee engages in protected activity by taking a photograph or making a recording depends on the facts and circumstances of the case. AT&T Mobility, supra slip op. at 4. See also ADT, LLC, 369 NLRB No. 23, slip op. 1 fn. 3 (2020) (Board held employee was engaged in protected activity when, acting as union steward, he made an audio-visual recording of a captive-audience meeting in violation of no-recording policy to collect and compare infor- mation the union needed).17 explained the Boeing decision is fundamentally flawed because it per- mits employers to maintain work rules that chill the exercise of protected rights without narrowly tailoring those rules to serve demonstrated, le- gitimate interests. McFerran disagreed with the majority’s decision to overrule the “applied to restrict” prong of Lutheran Heritage, explaining that when a rule is used to commit an unfair labor practice, rescission of that rule provides an effective assurance to employees that it will not be used again to interfere with their rights. McFerran would continue to ap- ply the “apply to restrict” prong to find unlawfully applied rules are un- lawful to maintain and would order their rescission and republish them with an affirmative disclaimer that the rule will not be applied to statuto- rily protected activity. The General Counsel argues for the overturning AT&T Mobility’s overruling of the “applied to restrict” prong in the Lutheran Heritage standard. As previously stated, I am bound to apply, not change, extant Board law. 16 The Board previously has held that discipline imposed pursuant to an unlawful policy violates the Act when an employee violates the policy by: (1) engaging in protected conduct or (2) engaging in conduct that otherwise implicates the concerns underlying Section 7 of the Act. See Continental Group, Inc., 357 NLRB 840, 842-845 (2011); Double Eagle Hotel & Casino, 341 NLRB 112 fn. 3 (2004). The employer will avoid liability if it can establish that the employee’s conduct interfered with the employee’s own work or that of other employees or otherwise interfered with the employer’s operations, and that the interference, rather than the violation of the rule, was the reason for the discipline. Continental Group, 357 NLRB at 412. It is the employer’s burden to establish that the employee’s interference with production or operations was the actual reason for the discipline -- the mere citation of the overbroad rule as the basis for the discipline will not suffice to meet its burden. The employer must demonstrate that it cited the employee’s interference with produc- tion and not simply the violation of the overbroad rule. Id. 17 For support, Respondent cites to Argos USA, LLC, 369 NLRB No. 26 (2020), in which the Board reversed the administrative law judge’s finding that the employer unlawfully terminated an employee for violat- ing a company rule restricting cellular telephone use. In that case, the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 Terrio and Camburn acted together to take the photographs of the contractors’ vehicles parked in the employee-designated spots to provide security with information to contact the contrac- tors and get them to move their vehicles so that employees, like them, could park in those approved spots and avoid any potential adverse actions for not doing so.18 As established, there were no available spaces for Terrio and Camburn in the employee-desig- nated area, leading them to park in unapproved spots. Respond- ent’s Vehicular/Pedestrian Safety Procedure states employees may be issued a citation and disciplined for failing to park in approved spots. Regardless of whether anyone had been disci- plined, the threat of potential discipline remained. I, therefore, reject Respondent’s arguments and conclude Terrio and Cam- burn were engaged in protected concerted activity when they photographed the vehicles, and their protected activity was the sole reason why they were disciplined/discharged.19 Similar to AT&T Mobility, Respondent’s business justifica- tions for HR-3 and HR-31 were not implicated by Terrio and Camburn’s protected conduct. They took close-up photographs of the vehicle’s license plate and parking pass/permit hanging from the rearview mirror; they did not capture any confidential, proprietary, or trade secret information, nor did the photographs contain images that jeopardized security at the Refinery, partic- ularly when the photographs were to be shown only to onsite se- curity personnel to help them locate the vehicle owners. Also, because the photographs were taken away from the processing areas and any combustible or hazardous materials used in the re- fining process, the conduct at issue did not pose any risk to health and safety.20 Respondent argues the conduct violated the (unwritten) policy or reasonable expectation that employees perform work during paid/company time, and that it should not be required to tolerate employees leaving their work areas for 20 minutes, regardless of whether it was to engage in protected activity. On the surface, this is a compelling argument. However, Terrio and Camburn were disciplined for taking the photographs, not for job abandon- ment, dereliction of duty, stealing time, insubordination, etc. The focus of Respondent’s investigation was solely over whether they had prior written approval from management and a business reason for taking the photographs, not whether they had approval to leave and take the photos on “company time.” Furthermore, under the broad language of the policies, they would have been employee was terminated solely for violating the rule. But unlike here, there was no evidence the employee violated the rule by engaging in pro- tected concerted activity. 18 Contrary to Respondent’s assertion, employee parking on the em- ployer’s property is a term and condition of employment. See Great Coast Express, Inc., 196 NLRB 871 (1972). See also Success Village Apartments, Inc., 348 NLRB 579, 580 (2006)(citations therein). 19 Respondent contends the appropriate framework for analyzing the discipline/discharge decisions is contained in Wright Line, 251 NLRB 1083, 1089 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Wright Line is not applicable when there is no dispute the adverse actions were taken in response to the pro- tected concerted activity. Ohio Bell Telephone Co., 370 NLRB No. 29, slip op. at 4–5 and fn. 26 (2020). Respondent also contends that under Continental Group the conduct for which it disciplined Terrio and Camburn was wholly distinct from activity that falls within the ambit of Sec. 7. For the reasons stated, I subject to discipline for taking the photographs whether it was done on paid/company time or not. Under the circumstances presented, I conclude Respondent vi- olated 8(a)(1) by enforcing HR-3 and HR-31 to discipline Cam- burn and to discharge Terrio for engaging in protected concerted activity. C. Deferral Respondent argues the case should be deferred to the arbitra- tion decision in accordance with UPS, Inc., 369 NLRB No.1 (2019), affirmed in part, vacated in part, and remanded Atkinson v. NLRB, ___ F.4th _____, 2021 U.S. App. LEXIS 20264 (3rd Cir. 2021), and rehearing granted 2021 U.S. App. LEXIS 33225 (3rd Cir. 2021).21 In UPS, Inc., the Board returned to the post- arbitration standard adopted in Spielberg Manufacturing Co., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573 (1984), and it overruled the standard adopted in Babcock & Wilcox Con- struction Co., Inc., 361 NLRB 1127 (2014).22 Under the Spiel- berg/Olin standard, the Board will defer to the arbitrator’s deci- sion when: (1) the arbitration proceedings were fair and regular, (2) the parties agreed to be bound, (3) the contractual issue was factually parallel to the unfair labor practice issue, (4) the arbi- trator was presented generally with the facts relevant to resolving the unfair labor practice, and (5) the decision was not clearly re- pugnant to the purposes and policies of the Act. The burden of proof is on the party seeking a de novo hearing on the discharge or discipline that was the subject of the arbitration award. UPS, supra slip op. at 14–15. The sole factor at issue is whether Arbitrator Bergstedt’s de- cision was clearly repugnant to the purposes and policies of the Act. For an arbitrator’s decision to be repugnant to the Act, it must be “palpably wrong”—i.e., not susceptible to any interpre- tation consistent with the Act. Olin, 268 NLRB at 574. It is well established that an arbitrator need not decide a case the way the Board would have decided it or in a manner “totally consistent with Board precedent.” Id. As discussed, Arbitrator Bergstedt found Respondent had cause to discipline/discharge Terrio because he photographed contractor vehicles in the Refinery parking lot without authori- zation, in violation of HR-3 and HR-31. In reaching this conclu- sion, he rejected that Terrio’s prior union activities played any role in Respondent’s decision, but he did not consider whether reject this contention. Their protected conduct was the sole reason for their discipline, and Respondent failed to establish or communicate to Terrio or Camburn any other reason for the discipline, such as alleged interference with production or operations. 20 Lummus confirmed this in his testimony. (Tr. 494). 21 On November 9, 2021, the Third Circuit affirmed that the Board adopted an appropriate deferral standard and correctly determined that the charging party’s first claim before the dispute-resolution panel was moot. However, the Court held that the Board erred in failing to explain why it found that the dispute-resolution panel’s proceeding was fair and regular under its new deferral standard. Accordingly, the Court affirmed in part and vacated in part the Board’s order and remanded the case to the Board for further proceedings. 22 The General Counsel argues for overruling UPS and returning to the standard set forth in Babcock & Wilcox. For the reasons previously stated, that is a matter for the Board to decide. Again, I am bound to apply extant law. PHILLIPS 66 CO. 13 Terrio’s involvement in photographing the vehicles—the sole conduct for which he was terminated—amounted to protected concerted activity. This is a critical inquiry, and its omission is a fatal flaw, because, as explained, it is unlawful for an employer to apply lawful policies to restrict protected concerted activity. The Board has consistently refused to defer to arbitration awards that uphold discipline or a discharge for conduct that is protected by the Act. See, e.g., Mobil Oil Exploration & Producing, U.S., 325 NLRB 176, 177–179 (1997), enfd. 200 F.3d 230 (5th Cir. 1999); Cone Mills Corp., 298 NLRB 661 (1990); Garland Coal & Mining Co., 276 NLRB 963, 964–965 (1985); and Union Fork & Hoe Co., 241 NLRB 907 (1979). For the reasons stated, I find the conduct for which the arbitrator determined Respondent had cause to discharge Terrio was protected concerted activity. Therefore, the decision upholding that conduct as the basis for the discipline/discharge is clearly repugnant to the purposes and policies of the Act, and deferral is inappropriate. CONCLUSION OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent violated Section 8(a)(1) of the Act when it ap- plied or enforced HR-3 and HR-31 to issue a verbal warning to Chris Camburn and to discharge Wayne Michael Terrio under the progressive discipline system because they engaged in pro- tected concerted activity. 3. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY As a remedy for these unfair labor practices, Respondent is ordered to cease and desist from its unlawful conduct and to take certain affirmative action. Respondent, having discriminatorily disciplined/discharged Camburn and Terrio, must rescind the discipline/discipline and expunge any reference from its files, and notify them in writing that this has been done. Respondent will be required to reinstate Terrio to his former position or, if that position no longer exists, to a substantially equivalent posi- tion, without prejudice to seniority or any other rights or privi- leges previously enjoyed. Respondent shall make Terrio whole for any loss of earnings and other benefits suffered as a result of its unlawful termination. The make-whole remedy shall be com- puted in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Ken- tucky River Medical Center, 356 NLRB 6 (2010). In accordance with King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in rel- evant part 859 F.3d 23 (D.C. Cir. 2017). Respondent also is or- dered to compensate Terrio for search-for-work and interim em- ployment expenses regardless of whether those expenses exceed his interim earnings. Search-for-work and interim employment expenses shall be calculated separately from taxable net 23 If no exceptions are filed, as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended or- der shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be waived for all purposes. backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medi- cal Center, supra. In accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), Respondent also shall be ordered to compensate Terrio for the adverse tax conse- quences, if any, of receiving a lump sum backpay award. In ac- cordance with AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016), Respondent will also be ordered to file with the Regional Director for Region 15, within 21 days of the date the amount of backpay is fixed either by agreement or Board order, a report allocating backpay to the appropriate calendar year for Terrio. The Regional Director will then assume responsibility for trans- mission of the report to the Social Security Administration at the appropriate time and in the appropriate manner. In accordance with Cascades Containerboard Packing-Niagara, 370 NLRB No. 76 (2021), as modified 371 NLRB No. 25 (2021), Respond- ent also will be ordered to file with the Regional Director, within 21 days of the date the amounts of Terrio’s corresponding W-2 forms reflecting backpay award. This section should be read to- gether with the following23 ORDER24 Respondent, Phillips 66 Company, in Belle Chasse, Louisi- ana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Applying its no-camera/recording policies contained in HR-3 and HR-31 to restrict employees in the exercise of their Section 7 rights. (b) Disciplining, discharging, or otherwise discriminating against employees because they engaged Section 7 activity (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. 2. Take the following affirmative action necessary to effectu- ate the policies of the Act. (a) Within 14 days from the date of this Order, offer Terrio immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previ- ously enjoyed. (b) Make Terrio whole for any loss of earnings and other ben- efits suffered as a result of his unlawful discharge, as set forth in the Remedy section of this decision. (c) Within 14 days from the date of this Order, remove and expunge from its files any reference to the unlawful discharge of Terrio and discipline of Camburn, and within 3 days thereafter, notify each in writing that this has been done and the discharge or discipline will not be used against them in any way. (d) Preserve and, within 14 days of a request, or such addi- tional time as the Regional 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, 24 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 including an electronic copy of such records if stored in elec- tronic form, necessary to analyze the amount of backpay due un- der the terms of this Order. (e) Within 14 days from the date of this order, post at its fa- cilities in Belle Chasse, Louisiana, copies of the attached notice marked “Appendix.”25 Copies of the notice, on forms provided by the Regional Director, after being signed by the Respondent’s authorized representative, shall also be posted by the Respondent 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 en- sure that the notices are not altered, defaced, or covered by any other material. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, post- ing on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its em- ployees by such means. 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 that location at any time since February 10, 2020. (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. Dated at Washington, D.C., September 16. 2022. APPENDIX NOTICE TO EMPLOYEES (To be printed and posted on official Board notice form) THE NATIONAL LABOR RELATIONS ACT GIVES YOU THE RIGHT TO: Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT interfere with, restrain, or coerce you in the ex- ercise of the above rights. WE WILL NOT unlawfully apply or enforce our policies, includ- ing HR-3 or HR-31, to prevent you from engaging in protected concerted activities and/or discipline, discharge or otherwise dis- criminate against you because you engaged in protected con- certed activities, or otherwise discourage you from engaging in these activities. 25 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notices must be posted within 14 days after the facility reopens and a substantial complement of employees have WE WILL NOT discipline, discharge or otherwise discriminate against you because you engaged in protected concerted activi- ties, or to discourage you from engaging in these activities. WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the National Labor Relations Act. WE WILL offer Wayne Michael Terrio full reinstatement to his former jobs or, if that job no longer exists, to a substantially equivalent position, without prejudice to their seniority or any other rights or privileges previously enjoyed; WE WILL make him whole for any loss of earnings and other benefits suffered as a result of our unlawful termination; WE WILL make him whole for reasonable search-for-work and interim employment expenses, plus interest. Compensate him for the adverse tax consequences, if any, of receiving a lump-sum backpay award; WE WILL file with the Regional Director for Region 15, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appro- priate calendar year(s); WE WILL file with the Regional Director for Region 15 a copy of corresponding W-2 forms reflecting the backpay award; and WE WILL remove from our files any reference to these unlawful discipline issued to Chris Camburn and the un- lawful discharge/discipline to Terrio, and WE WILL, within 3 days thereafter, notify each in writing that this has been done and that their discharge will not be used against them in any way. WE WILL compensate Terrio for any adverse income tax con- sequences of receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region 15, within 21 days, a report allocating the backpay award to the appropriate calendar years. PHILLIPS66 COMPANY The Administrative Law Judge’s decision can be found at www.nlrb.gov/case 05-CA-263723 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. returned to work, and the notices may not be posted until a substantial complement of employees have returned to work. Any delay in the phys- ical posting of paper notices also applies to the electronic distribution of the notice if Respondent customarily communicates with its employees by electronic means.