Phillips 66

National Labor Relations Board - Board Decisions

Jan 15, 2014

360 N.L.R.B. 124 (N.L.R.B. 2014)

124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 26
Phillips 66 (Sweeny Refinery) and International Un-
ion of Operating Engineers, Local Union No.
564. Cases 16–CA–087373, 16–CA–089250, and
16–CA–089036
January 15, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA, AND SCHIFFER
On April 9, 2013, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The General
Counsel and the Respondent each filed exceptions, a
supporting brief, and an answering brief, and the Re-
spondent filed a reply 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, findings,1 and conclusions and
to adopt his recommended Order as modified below.2
1. We agree with the judge that Supervisor Tynes
Schroller unlawfully threatened lead operator Roger
Bennett by stating that the Respondent probably would
make lead operator a salaried position (effectively cur-
tailing Bennett’s and other leads’ pay) in the event the
Union came in.3

1 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
There are no exceptions to the judge’s dismissal of an allegation that
Supervisor Tynes Schroller unlawfully interrogated employee Roger
Bennett.
2 We shall modify the judge’s recommended Order to provide for
electronic posting of the remedial notice in accord with J. Picini Floor-
ing, 356 NLRB 11 (2010). In addition, in the absence of evidence of
corporatewide misconduct, we find merit in the Respondent’s cross-
exception to a corporatewide posting requirement and will confine that
requirement to the facility at issue. Further, our Order requiring the
Respondent not to discriminate against the Union in granting access to
the Respondent’s property shall be limited to the particular fire station
property involved in this proceeding.
3 We disagree, however, with the judge’s reliance on NLRB v. Gis-
sel Packing Co., 395 U.S. 575, 618 (1969), in making that finding.
Citing Gissel, the judge noted that Schroller made his prediction “even
though there was no record evidence to support this conclusion.” Ac-
cordingly, he found that the statement was “no longer a reasonable
prediction based on available facts, but a threat of retaliation based on
misrepresentation and coercion.” Gissel, however, addresses predic-
tions of adverse economic consequences flowing from unionization that
are outside of the employer’s control. Here, Schroller’s statement that
the Respondent probably would make Bennett’s position salaried if the
Union came in concerned a decision wholly within the Respondent’s
control and was retaliatory on its face. Accordingly, it is irrelevant
whether Schroller’s statement had any factual basis. Further, contrary
2. For the reasons given by the judge, we also agree
with his finding that Supervisor Desiree Cromwell un-
lawfully interrogated employee Winston Bush when she
asked him, “[w]hat’s your opinion of this union thing?”
3. Finally, we agree with the judge that the Respondent
unlawfully denied the Union use of the Respondent’s
property to hold an organizing event. The Respondent
owned a tract of land directly across the road from the
facility involved in this case, which it leased to a local
fire department for its fire station. Without objection by
the Respondent, the fire chief, Craig Peterson, had rou-
tinely permitted the Union, which represented a small
unit of the Respondent’s crane operators, and at least
four of the Respondent’s other “in-house” unions that
represented existing units to hold their monthly member-
ship meetings in the fire station’s office. In August
2012,4 the Union obtained Peterson’s permission to use
the fire station’s office and immediate surrounding area
for a September 13 barbecue aimed at organizing the
Respondent’s remaining 340 unrepresented employees.
The Union distributed a flyer inviting those employees to
attend the event to “discuss the benefits of having a Un-
ion at your plant.”
On about September 11, however, the Respondent’s
human resources director, Mike Saiz, called Peterson and
told him that “the unions are really not supposed to have
things on our property,” and directed Peterson to tell the
Union to move the September 13 event elsewhere. Pe-
terson asked Saiz if he, Peterson, had been wrong to let
the unions use the fire station building for their monthly
meetings. Crediting Peterson, whose testimony was un-
challenged because Saiz did not testify,5 the judge found
that Saiz replied that he did not object to the “in-house”
unions meeting at the fire station and that “he only had a
problem with this event and not with the other meetings.”
In Peterson’s words, “we . . . talked about it being an
organizing event—or it was a new union,” and Saiz dis-
tinguished between “in-house union” activity and other
union activity. Peterson then informed the Union that it
would have to move the event. On these facts, we agree
with the judge’s finding that the Respondent engaged in
unlawful discrimination by drawing a distinction be-
tween the Union’s organizing event and membership
meetings by its “in-house” unions, both activities pro-
tected by Section 7 of the Act. As found by the judge,

to the Respondent’s argument, it is no defense that Schroller and Ben-
nett were friends. See Southwire Co., 282 NLRB 916, 917–918 (1987).
4 All subsequent dates are 2012.
5 We draw an adverse inference from the Respondent’s failure to
call Saiz to testify at the hearing. See, e.g., Fairhaven Properties, Inc.,
314 NLRB 763, 769 (1994); Advanced Installations, 257 NLRB 845,
849 (1981).
PHILLIPS 66 (SWEENY REFINERY) 125
there appears to have been no reason for the Respond-
ent’s action other than that, on this occasion, the Union
was attempting to organize the Respondent’s unrepre-
sented employees—an effort to which the Respondent
was opposed. The judge thus properly found that the
Respondent violated the Act.
As it did at the trial, the Respondent maintains in its
exceptions that it barred the Union’s use of the fire sta-
tion property for two lawful reasons: the barbecue event
would have involved the consumption of alcohol, and the
building’s office was too small to accommodate the ex-
pected turnout. However, there is no evidence that Saiz
asserted or relied on these reasons at the time. Because
the Respondent’s asserted reasons are rationalizations
unsupported by evidence that these distinctions were
relied upon by the Respondent employer, we reject them.
See Guard Publishing Co. v. NLRB, 571 F.3d 53, 60
(D.C. Cir. 2009) (finding that employer could not justify
its discrimination between different types of email solici-
tations based on a distinction it never invoked before the
General Counsel issued the complaint).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Phillips
66 (Sweeny Refinery), Old Ocean, Texas, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Refusing to allow the Union or any other labor or-
ganization nondiscriminatory access to the Old Ocean
Volunteer Fire Department property.”
2. Substitute the following for paragraph 2(b).
“(b) Within 14 days after service by the Region, post at
its Sweeny Refinery copies of the attached notice marked
‘Appendix.’4 Copies of the notice, on forms provided by
the Regional Director for Region 16, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places including all places
where notices to employees are customarily posted. 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 elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since September 11, 2012.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten you with the loss of overtime
pay or other benefits if you choose International Union
of Operating Engineers, Local Union No. 564 (the Un-
ion) or any other labor organization to represent you.
WE WILL NOT coercively question you about your sup-
port for the Union or for any other labor organization.
WE WILL NOT refuse to allow the Union or any other
labor organization nondiscriminatory access to the Old
Ocean Volunteer Fire Department (Fire Department)
property.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above, which are guaranteed you by Section 7 of
the Act.
WE WILL notify the Union and the Fire Department
that the Union may use the Fire Department property on
a nondiscriminatory basis.
PHILLIPS 66 (SWEENY REFINERY)
Dean Owens, Esq., for the General Counsel.
Dan Dargene, Esq. (Ogletree, Deakins, Nash, Smoak & Stew-
art, P.C.), for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on February 21, 2013 in Houston, Texas. The
consolidated complaint here, which issued on December 27,
126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20121 and was based upon unfair labor practice charges, and an
amended charge, that were filed between August 16 and Sep-
tember 12, by International Union of Operating Engineers,
Local Union No. 564 (the Union), alleges that Phillips 66 (the
Respondent), on August 14 and September 11, interrogated
employees about their union activities and sympathies and on
August 14, also threatened employees with loss of benefits if
they selected the Union as their bargaining representative. The
consolidated complaint further alleges that since about Septem-
ber 11, the Respondent has interfered with its employees and
the Union’s use of the Old Ocean Voluntary Fire Department
property to conduct a union organizing event. It is alleged that
by these actions the Respondent violated Section 8(a)(1) of the
Act.
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent admits, and I find, that it has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and that the Union has been a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. THE FACTS
The Respondent operates a petrochemical refinery in Old
Ocean, Texas, a town approximately 60 miles south of Hou-
ston. The Union presently represents a unit of approximately 20
crane operators at the Respondent’s Sweeny Refinery (the facil-
ity), located in Old Ocean, Texas. On August 17, it filed a peti-
tion to represent all operators and terminal operators employed
by the Respondent at the facility. The Acting Regional Director
issued a decision and direction of election dated September 6
where he found that the unit of operators and terminal operators
was the appropriate unit and ordered that an election be held in
that unit. At the election conducted on October 4 and 5, there
were 87 votes cast in favor or the Union and 233 votes cast
against the Union. No objections having been filed, on October
15, the Regional Director issued a certification of results of
election finding that a majority of the valid ballots were not cast
for any labor organization.
There are three distinct incidents here that are alleged to vio-
late the Act: it is first alleged that on August 14, Tynes
Schroller, training supervisor, and an admitted supervisor and
agent of the Respondent, interrogated an employee about his
union activities and sympathies and those of his fellow employ-
ees, and threatened him with the loss of benefits if the employ-
ees selected the Union as their bargaining representative. It is
next alleged that on September 11, Desiree Cromwell, team
leader and an admitted supervisor and agent of the Respondent,
interrogated an employee about his union activities and sympa-
thies, as well as those of his fellow employees. Finally, it is
alleged that the Respondent, by Mike Saiz, its human resources
director, interfered with its employees and the Union’s use of
the Old Ocean Volunteer Fire Department property to conduct a
union organizing campaign. Respondent denies these allega-
tions.

1 Unless indicated otherwise, all dates referred to here relate to the
year 2012.
A. August 14 Incident
The recipient of Schroller’s remarks on August 14, was Rog-
er Bennett, who has been employed by the Respondent for 33
years, and is presently classified as a lead operator at the facili-
ty, a nonsupervisory position. He reports to Dale Thames, su-
pervisor specialist, and Carlos Sepulveda, the team leader. He
has known Schroller for almost 30 years, had worked with him
for about 10 years and considers him a friend; up to a few years
ago, they used to play golf together. Schroller is not his super-
visor, he does not assign work to Bennett, give him perfor-
mance evaluations, or discipline him. Bennett testified that it is
a known fact at the facility that he is a union supporter and he
was an observer for the Union at the election. He testified that
on August 14, while he was making changes in the Respond-
ent’s procedures in the computer room in the administration
building at the facility, he was approached by Schroller, the
highest ranking manager in the training department, who asked,
“What’s going on with the Union?” Bennett shrugged his
shoulders, but did not respond. He testified: “I knew better than
to . . . I didn’t want to start a conversation about the Union.”
Schroller said that if the Union came in, the odds are that the
Respondent would make the lead operator position salaried.
Bennett responded that he didn’t want to be salaried, and that
he would rather “bump back” and be an operator rather than
being salaried. Bennett told other employees about this inci-
dent.
Schroller has been employed at the facility for 27 years and
has been a training team leader for 3 years; he reports directly
to Saiz. He has known Bennett for about 27 years; during 10 of
those years, they worked side-by-side and he considers him a
friend. He and the six training team analysts that he oversees
provide operational and maintenance training for the hourly
employees at the facility, some hands-on, but most through the
computer, in the training room. He has no supervisory authority
over the unit of employees that the Union was attempting to
organize. He testified that on August 14, while he and Bennett
were working in the training computer laboratory, he comment-
ed that there was going to be another vote, and he was not even
aware that the Union was having cards signed. They discussed
the pros and cons of unions and how other refineries operate
with a union. He told Bennett that if the Union came in, every-
thing would have to be renegotiated. He also told Bennett that
at the other refineries owned by the Respondent, the operators
were salaried.
B. September 11 Incident
This situation involved Winston Bush, who has been em-
ployed by the Respondent for 15 years as a chemical plant op-
erator. His lead operator is Alvin Johnson; Cromwell is his
team leader. His department’s responsibility is to monitor envi-
ronmental concerns pertaining to the river water used at the
facility. He testified that he had no involvement with the Un-
ion’s organizational campaign. On September 7, he sent
Cromwell an email setting forth his concerns about some plants
that had appeared in the water system that could cause a prob-
lem for the water supply. On September 11, while he was mak-
ing his rounds of the reservoir and the river in his truck he re-
ceived a call from Charlie Willbanks, his lead operator at the
PHILLIPS 66 (SWEENY REFINERY) 127
time, saying that Cromwell wanted to speak to him. He drove
back and saw her on the roadway and told her that he could
show her the problem areas and she agreed, and he said, “hop
in.” He was getting ready to show her the problem areas, when
she said, “Let me ask you something, what’s your opinion of
this union thing?” He did not reply, testifying: “I tried to stay as
close-mouthed on it as I possibly could.” He told her that he
didn’t have an opinion about it and she told him that the facility
was probably one of the better ones that she had worked at
because they were close knit and family oriented. She said that
the employees have “a good thing here” and that she has
worked in other plants and knows how hectic it could be
“working in a unionized environment.” She mentioned that in
one unionized plant nine hundred cases had to go to arbitration.
When he arrived at the location that Cromwell asked to be
dropped off at, she stayed in the truck and continued to talk
about how the Union would not necessarily be beneficial to the
employees. To play the “Devil’s Advocate,” he asked her what
would be the worst thing about having a union for representa-
tion, and she said that the company already had an employee
review board and an open door policy. He asked her if he were
her husband, brother or cousin, would she be having this con-
versation with him and she said that she would. Before leaving
the truck, she gave him a printout of the pros and cons of a
union. Shortly thereafter, a group of employees, including
Bush, invited her to join them for lunch.
Cromwell has been employed at the facility for 4 years and
has been team leader for a year and a month. On Monday, Sep-
tember 10, while she was speaking to Bush, he asked if she had
seen his September 7 email and when she did recollect it, he
asked if she had time the following day to drive with him to
inspect the problem areas, and she said that she did, and on
September 11, she had him paged and he picked her up in his
truck. She testified that after about 15 minutes and discussions
of the water situation, she mentioned that she was surprised that
she received an email dated August 21, from the general man-
ager of the facility that the Union had filed a petition with the
Board to represent the operators. She testified that Bush re-
sponded that he was not surprised because of the issues the
operators were having with management. She told him that the
Respondent had implemented a lot of new programs to improve
communications between the employees and management and
had established a peer review process and an employee excel-
lence team, and he acknowledged that they were good pro-
grams. He asked her to take off her manager’s hat and asked if
he were her cousin, husband or brother, would she be telling
him the same things, and she said that she would. While in the
truck, they spent 15 minutes or less speaking about the Union,
and a majority of the time, speaking about the water system.
C. The Union Party at the Firehouse
The Old Ocean Volunteer Fire Department (the Fire De-
partment), is located directly across the road from the facility,
on land owned by the Respondent. On September 18, 1980, the
Respondent entered into a lease agreement with the Fire De-
partment for $1 a year for a period of 5 years, but from year to
year thereafter until either party gives the other 30 days written
notice of its intention to terminate the agreement. Apparently,
neither party has exercised its right to terminate the agreement.
The building on the premises is small and contains bays where
the fire trucks are stored, and it is located on a third of an acre
lot with adjacent acreage containing a baseball field and a park-
ing lot. Over the years the Union has held regular monthly
meetings of its membership composed of crane operators em-
ployed at the facility. Prior to arranging these meetings, the
Union called Craig Peterson, the Fire Chief, for permission to
use the facility for the meeting, and he has always given his
approval. Charles Singletary, business manager of the Union,
testified that other unions representing pipefitters, boilermak-
ers, welders, operating engineers and electricians employed at
the facility also used the building for their monthly meetings.
Singletary testified that in mid-August, he called Peterson to
ask permission to use the Fire Department property for either a
pancake breakfast or another function and that they would be
using the property for the entire day. Peterson gave him permis-
sion, and told him that the property had no kitchen, and Sin-
gletary said that they would bring everything that they needed.
Singletary asked if he could take the fire trucks out of the bays,
and he said that if he were available he could, and he also asked
if the Union could use the meeting room if people wanted to
come inside out of the Summer heat, and Peterson said that
they could. Singletary also said that they were going to be set-
ting up tents and that they would have everything that they
needed. About a week later, he called Peterson to confirm, and
told him that they were either going to have a barbecue, where
they cooked the food elsewhere, and brought it to the site, or
would have the party catered, and the party was scheduled for
September 13. Shortly thereafter the Union distributed a flyer
to all employees on the Excelsior list stating that the barbecue
would be at the Fire Department property on September 13
from noon to 8 p.m. Eric Wells, an organizer for the Union,
testified that on about September 11 he received a telephone
call from Peterson saying that the Union would not be able to
have their barbecue at the Fire Department because he was
contacted by Saiz stating that the barbecue would not be taking
place there.
Peterson testified that a number of years ago he began allow-
ing in-house unions at the facility to use his building for meet-
ings, and prior to this situation, he never refused permission for
a union to use the building. When he received the call from
Singletary asking if the Union could use the property on Sep-
tember 13, he told him that they could do so. A few days prior
to September 13, he received a telephone call from Saiz asking
about the Union’s barbecue: “And he asked me if I was aware
that our station sat on Phillips property, and I said yes, sir. And
he said, well the unions are really not supposed to have things
on our property. And I said, okay . . . he asked me if I would
call and talk to the people and get them to move it, and I said,
sure.” Peterson then asked Saiz if he was wrong letting the
other unions use the building for their meetings, and he said
that he didn’t have a problem with the in-house unions meeting
at the fire station: “he said he only had a problem with this
event and not with the other meetings.” Peterson then called the
Union and told them that because the firehouse sat on Re-
spondent’s property they could not have their meeting there and
they would have to move it to another location, and mentioned
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the telephone call that he received from Saiz. The Union was
able to obtain the use of a VFW hall, approximately four miles
away for the meeting on September 13. Although they expected
approximately 100 people to attend, only about 30 attended the
event at the VFW hall.2
III. ANALYSIS
It is initially alleged that Schroller’s questioning of Bennett,
on about August 14, violated Section 8(a)(1) of the Act. As
there are credibility issues involving the testimony of Bennett
and Schroller, and Bush and Cromwell, I found the testimony
of Bennett and Bush to be totally credible and believable, and
credit their testimony over that of Schroller and Cromwell.
Although I did not find Schroller to be an incredible witness, I
found Bennett to be clearly more credible. In addition, I found
Cromwell, at times, to be evasive and incapable or unwilling to
answer directly, and I credit his testimony over hers.
Rossmore House, 269 NLRB 1176 (1984), and some more
recent cases such as John W. Hancock, Jr., Inc., 337 NLRB
1223 (2002); Toma Metals, Inc., 342 NLRB 787, 789 (2004);
and Camaco Lorain Mfg., 356 NLRB 1182 (2011), set forth the
factors to be considered in determining whether questioning of
this nature violates the Act:
(1) The background, i.e., is there a history of employer hostili-
ty and discrimination?
(2) The nature of the information sought, e.g., did the ques-
tioner appear to be seeking information on which to base tak-
ing action against individual employees?
(3) The identity of the questioner, i.e., how high was he/she in
the company hierarchy?
(4) Place and method of interrogation, e.g., was employee
called from work to the boss’s office? Was there an atmos-
phere of unnatural formality?
(5) Truthfulness of the reply.
The Board also takes into consideration whether the supervi-
sor and the questioned employee had a friendly relationship and
whether the employee was reluctant to respond. Gelita, USA,
Inc., 352 NLRB 406 (2008). Further, the Board stresses that
these factors are not to be mechanically applied. Sunnyvale
Medical Clinic, 277 NLRB 1217, 1218 (1985).
Taking these factors into consideration, there is no history of
hostility between the Respondent and the Union, other than the
allegations here and, in fact, some of the Respondent’s employ-
ees are organized; Schroller’s question to Bennett was a gen-
eral, nonspecific, question, rather than one that attempted to

2 There was some testimony, principally on cross examination,
about whether liquor would be served at the event (it wouldn’t, but
people could bring their own) and the size of, and facilities at, the
building compared the nature of the event and the number of people
expected to attend. I find that both subjects are irrelevant to the ultimate
determination here, the former because Saiz’ objection was not to the
fact that there might be liquor at the event (it wasn’t even mentioned in
his call to Peterson), and the latter because the Union’s event was going
to be in tents set up outside the building, and the food was going to be
cooked elsewhere or catered so that the size of the building, and the
limited facilities in the building, were not relevant factors.
induce Bennett to incriminate himself. Schroller and Bennett
had worked together side by side for 10 years, they have known
each other for almost 30 years and still consider the other a
friend. Bennett is a known union supporter, was an observer for
the Union at the election, and Schroller is not Bennett’s super-
visor, he is a training team leader, and the question was asked
while they were in the computer room of the administration
building. On the other hand, rather than answer the question,
Bennett shrugged his shoulders because he didn’t want to dis-
cuss the subject. Other than Bennett’s reluctance to answer
Schroller’s inquiry, all of these factors are answered in Re-
spondent’s favor. I therefore find that there was no unlawful
interrogation here, and recommend that this allegation be dis-
missed. However, the complaint also alleges that Schroller
threatened Bennett with the loss of benefits if the employees
selected the Union as their collective bargaining representative,
and that is precisely what Schroller did; he told Bennett that if
the Union came in, the odds were that the Respondent would
make the lead operator position (Bennett’s job) salaried, even
though there was no record evidence to support this conclusion.
This statement by Schroller was “no longer a reasonable predic-
tion based on available facts, but a threat of retaliation based on
misrepresentation and coercion, and as such without the protec-
tion of the First Amendment.” Gissel Packing Co. v. NLRB,
395 U.S. 575, 618 (1969). By telling Bennett that the Respond-
ent would probably do that in response to the employees’ union
activities, the Respondent violated Section 8(a)(1) of the Act.
Employing the same factors for the September 11 situation
involving Cromwell and Bush, I find that her questions and
comments violated Section 8(a)(1) of the Act. Unlike
Schroller’s general question: “What’s going on with the Un-
ion?” Cromwell’s question was specific, asking him his opinion
about the Union. In addition, Bush had no involvement, or open
involvement, with the Union, she was his supervisor and they
were not on a friendly basis, as Bennett and Cromwell were,
and the conversation was one-on-one in the closer confine of
the Respondent’s truck. Further, his testimony that he tried to
stay as closed mouthed as he could, establishes that he was
uncomfortable with the question. For all these reasons, I find
that her question about the Union, while they were in the truck,
violated Section 8(a)(1) of the Act.
The final issue relates to the legality of the Respondent’s re-
fusal to allow the Union to have its September 13 party at the
Fire Department. The evidence establishes that the Respondent
owns the land on which the Fire Department sits and that it
leases the land to the Fire Department for a dollar a year. The
evidence also establishes that the Fire Department, with no
objection from the Respondent, has regularly granted Respond-
ent’s in-house unions permission to hold meetings on its prem-
ises. The first occasion when such permission was denied was
on about September 11, when Saiz overruled Peterson and told
him that unions were not really supposed to meet on its proper-
ty, and asked him to call the Union to tell them to move their
meeting to another location, which he did. Unlike Counsel for
the General Counsel’s Brief, I find it unnecessary to differenti-
ate between Respondent’s rights as the owner, or not the owner,
of the property on which the Fire Department is located. Ra-
ther, I find that the appropriate inquiry is whether the denial of
PHILLIPS 66 (SWEENY REFINERY) 129
the use of the property was the result of disparate treatment
caused by the Union’s organizational purpose at the property.
D’Alessandro’s, Inc., 292 NLRB 81, 84 (1988), stated that
an employer may prohibit certain postings on its property as
long as it does not discriminate against the union by allowing
other distributions. In Davis Supermarkets, 306 NLRB 426
(1992), the Board found that the employer violated the Act
because of its disparate treatment of denying access to the un-
ion while permitting access to others. And in Columbia Uni-
versity, 225 NLRB 185 (1976), clearly relevant to the facts
here, the Board found that the university violated the Act by
denying access to an organizing committee composed solely of
its employees, while allowing recognized union groups, and
outside groups, to use the denied facility for a variety of pur-
poses. Also on point is Dow Jones and Co., 318 NLRB 574
(1995) where the union, which represented about 2000 of the
employer’s employees nationwide, proposed to its membership
that rather than being an independent union, they affiliate with
the Communications Workers of America, and the employer
openly and actively opposed this affiliation. Although the em-
ployer had allowed other groups (groups composed of minority
employees and female employees, smoke-ending programs and
weight reduction programs) to meet on their premises, they
refused to allow the union and CWA representatives to use its
facilities to solicit support for the proposed affiliation. The
Board affirmed the judge’s finding that the employer violated
the Act because of its disparate treatment of denying access to
the union, while granting it to others. Clearly, that is also the
situation here. The in-house unions regularly had meetings at
the firehouse; in fact, Peterson initially told Singletary that the
Union could have their party there. The first time that such a
meeting was prohibited was when Saiz called Peterson on Sep-
tember 11, and told him not to allow the Union to have the
party. Clearly, there was no reason for this prohibition other
than the fact that, in this situation, the Union was attempting to
organize the Respondent’s employees. Whitesell Corp., 352
NLRB 1196 (2008). This obvious disparate treatment violates
Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act when
Cromwell interrogated Bush on about September 11.
4. The Respondent violated Section 8(a)(1) of the Act when
Schroller told Bennett that the Respondent would probably
make his position salaried if the Union were voted in.
5. The Respondent violated Section 8(a)(1) of the Act by
denying the Union the use of the Fire Department property for
its organizational party on September 13, 2012.
6. The Respondent did not violate the Act as further alleged
in the complaint.
THE REMEDY
Having found that the Respondent has violated Section
8(a)(1) of the Act, I recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate
the policies of the Act. In that regard, Respondent shall notify
the Union and the Fire Department, in writing, that it has no
objection to the Union, or any other labor organization, using
the property for any purpose that does not conflict with the Fire
Department’s purpose.
Upon the foregoing findings of fact, conclusions of law, and
on the entire record, I hereby issue the following recommend-
ed3
ORDER
The Respondent, Phillips 66, Old Ocean, Texas, its officers,
agents, successors and assigns shall
1. Cease and desist from
(a) Refusing to allow the Union, or any other labor organiza-
tion, equal and nondiscriminatory access to the Old Ocean Vol-
unteer Fire Department property, or any other property owned
or maintained by the Respondent.
(b) Interrogating its employees regarding their union activi-
ties, or threatening employees with adverse working conditions
if they chose the Union as their collective bargaining repre-
sentative.
(c) In any like or related manner interfering with, restraining
or coercing employees in the exercise of their rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act.
(a) Notify the Union and the Fire Department, in writing,
that it has no objection to its use of the Old Ocean Volunteer
Fire Department property for regular union meetings or for
meetings with an organizational purpose and that, it will allow
the use of its facilities on a nondiscriminatory basis.
(b) Within 14 days after service by the Region, post at its
Sweeny Refinery, and all refineries in the United States, copies
of the attached notice marked “Appendix.”4 Copies of the no-
tice, on forms provided by the Regional Director for Region 16,
after being signed by the Respondent’s authorized representa-
tive, shall 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 ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since September 11, 2012.

3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(c) 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.
(d) IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.