Phillips 66

National Labor Relations Board - Board Decisions

Jan 31, 2020

369 N.L.R.B. 13 (N.L.R.B. 2020)

369 NLRB No. 13
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 and United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied Indus-
trial & Service Workers International Union,
AFL–CIO–CLC. Cases 31–CA–085243 and 31–
CA–096709
January 31, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On November 25, 2014, Administrative Law Judge Li-
sa D. Thompson issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel and Charging Party each filed an an-
swering brief, and the Respondent filed reply briefs.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions only to the extent consistent with
this Decision and Order.3
This case arises out of a campaign by United Steel,
Paper and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial & Service Workers International Union,
AFL–CIO–CLC (the Union) to represent health and safe-
ty shift specialists (HSS specialists) at the Respondent’s
Santa Maria, California facility. The complaint alleges
that prior to and after a Board-conducted election in
which the HSS specialists voted for union representation,
the Respondent violated Section 8(a)(1), (3), and (5) of
the Act in various respects.

1 By letter dated March 10, 2015, the Board rejected the Charging
Party’s exceptions as untimely filed.
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 preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
No party has excepted to the judge’s denial of the General Counsel’s
request for a notice-reading remedy. In any event, we find such a rem-
edy unwarranted.
3 In an April 11, 2019 Order, the Board severed and remanded for
further consideration under Boeing Co., 365 NLRB No. 154 (2017), the
allegation that the Respondent unlawfully promulgated News Media
Guidelines prohibiting employees from speaking to the media about the
Respondent’s operations.
We shall amend the judge’s Conclusions of Law and remedy and
modify her recommended Order to conform to the violation found and
to the Board’s standard remedial language. We shall substitute a new
notice to conform to the Order as modified.
The Respondent owns and operates oil and gas refiner-
ies, including the Santa Maria refinery. The Respondent
employed five HSS specialists at that facility. Their job
duties included safety training, reviewing and updating
safety procedures, and providing emergency medical
response. In addition, in the event of a safety emergen-
cy, the HSS specialist on duty served as incident com-
mander, in which capacity he would temporarily assume
control over facility operations and coordinate the re-
sponse. Once the emergency was over, he became the
incident owner and created a report about the emergency.
Each HSS specialist worked approximately 42 hours per
week, with periodic significant overtime. Because the
facility operated around the clock, an HSS specialist was
always on duty in case EMT or incident command-
er/owner services were needed.
In November 2011, the Union filed a representation
petition to include the HSS specialists in the existing
statewide multifacility bargaining unit. The Respondent
opposed the petition, arguing that the HSS specialists
were statutory supervisors due to their incident com-
mander/owner responsibilities. The Acting Regional
Director (ARD) rejected that argument and directed an
election. Nevertheless, he found “some evidence . . . that
[HSS specialists] may, when acting as an incident com-
mander, direct the work of bargaining unit employees.”
On January 16, 2012,4 4 days before the election, the
Respondent convened a meeting with the HSS special-
ists. Human Resources Manager Tiffany Wilson began
by stating that the purpose of the meeting was to provide
information so that the HSS specialists could make an
informed decision about whether to vote for or against
the Union. She then explained that the Respondent felt
that certain of their job duties were supervisory, that it
would strip them of these duties if they joined the Union,
and that without such duties, the Respondent might not
need to maintain the existing around-the-clock staffing of
HSS specialists. She also stated that because the Re-
spondent believed the HSS specialists were statutory
supervisors, it would have to look at whether other of
their job duties also involved supervisory authority. Site
Manager Tim Seidel added that the Respondent might
have to adjust the HSS specialists’ overtime if they
joined the Union, and that it would review their job du-
ties to see if the Respondent required around-the-clock
staffing rather than an alternative 8-hour daily shift
schedule that could minimize overtime.
On January 19, 1 day before the election, three of the
Respondent’s managers met with four HSS specialists.
Incoming Site Manager Jerry Stumbo began by telling

4 Unless otherwise indicated, the following dates are in 2012.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
them they had a tough decision about whether to join the
Union, but he looked forward to working with them to
repair their relationship with management. Human Re-
sources Manager Wilson then told them that the Re-
spondent wished they would vote against the Union be-
cause the Respondent preferred to deal with them direct-
ly. Wilson also said that if the HSS specialists voted
against the Union, the Respondent would work toward
mending fences with them. HSS Specialist Andy Garcia
asked, “If we join the Union, you’re not going to work
with us?” Wilson did not respond, and Operations and
Technical Superintendent Jason Gislason interjected that
“what Wilson meant was we can’t talk to you, we will
have to go through the Union.”
The Union won the election 5–0, and the ARD certi-
fied it as the exclusive bargaining representative of the
HSS specialists. Around that time, the Respondent was
undertaking a full-scale maintenance “turnaround”—
entailing a complete shutdown of operations—which
required full participation of all employees, including
union representatives. The parties therefore agreed to
postpone negotiations until May. However, they execut-
ed a side letter agreement in which the Respondent
agreed to a specific hourly wage rate for the HSS special-
ist classification (or its replacement), specified that the
focus of the classification would remain health and safe-
ty, and promised that it would not lay off any of the em-
ployees if the HSS specialist positions were eliminated
through bargaining.
Beginning in May, the parties bargained about the HSS
specialist classification and its terms and conditions of
employment for approximately 7 months.5 During this
time, each party adhered to certain fundamental posi-
tions. Consistent with the ARD’s finding that the HSS
specialists may direct the work of other employees when
acting as incident commander, the Respondent took the
position that it would be inappropriate for unit employees
to perform incident commander duties; that without those
duties, there was no need for an HSS specialist to be at
the facility at all times; and that without an HSS special-
ist at the facility at all times, the Respondent would need
to reassign around-the-clock EMT duties to outside con-
tractors. In accordance with this position, the Respond-
ent proposed to abolish the HSS specialist classification
and create a new health and safety coordinator (HSC)
classification with fewer job duties, different work
schedules and, ultimately, lower wages. It proposed
transferring two HSS specialists to HSC jobs and demot-
ing the other three to operator jobs, which involved

5 The existing statewide collective-bargaining agreement would
otherwise govern the employees’ terms and conditions of employment.
cleaning and maintenance work and paid lower wages
than the proposed HSC positions. In August, the Union
agreed that the HSS specialists would no longer perform
incident commander duties. Otherwise, it rejected the
foregoing proposals and bargained to preserve the status
quo.
From June to September, the parties reached tentative
agreements and traded proposals. In June, they agreed
on the HSS specialists’ seniority rankings. In July, the
Respondent withdrew its opposition to the Union’s re-
quest that the HSS specialists receive an annual salary
increase (even though they would be nonsalaried em-
ployees under the proposed reclassification); the Re-
spondent also offered to pay the employees at their HSS
specialist wage rate for 13 weeks following any transfer.
In August, the Union agreed that the HSS specialists
would no longer perform incident commander duties, and
it expressed willingness to cooperate with the Respond-
ent to secure a beneficial OSHA certification. In Sep-
tember, the Respondent offered to place employees trans-
ferred to HSC positions on a shift schedule that would
increase their work hours, and to not require those trans-
ferred to operator jobs to pass a standard entry examina-
tion; however, it also decreased its wage proposals.
The next month, the parties did not meet, but they cor-
responded. In an October 12 letter, the Respondent re-
counted the course of negotiations, identified conces-
sions it had made in an effort to reach agreement, and
asked the Union to respond to its latest proposal. The
Union replied that it was continuing to study that pro-
posal and wished to meet again to negotiate on Novem-
ber 18. It disagreed with some of the Respondent’s rep-
resentations and accused the Respondent of discriminat-
ing against the HSS specialists without business justifica-
tion because they voted for union representation. The
Union nonetheless “reiterate[d] [its] willingness to com-
promise” and stated that it “remained committed to
reaching an agreement.” On October 26, the Respondent
denied discriminating against the HSS specialists, restat-
ed its business justifications for its overall proposal,6 and
identified what it considered “the parties’ essential areas
of disagreement”—job duties, the number of non-
operator positions available, and hours of work. The
Respondent concluded that it “remain[ed] committed to
bargaining in good faith to resolve these (and any other)

6 In its October 26 letter, the Respondent stated that it was “not an-
gry that the HSS specialists made a choice [of union representation]
which they have the legal right to make. However, now that they have
made that choice, the Company must make appropriate changes to its
operations to ensure supervisory duties are performed by supervisors;
this merely reflects the necessary changes which are legitimate and
logical consequences of that choice.”
PHILLIPS 66 3
areas of disagreement,” and confirmed that it would meet
on November 18.
At the November 18 meeting, the Respondent declared
that the parties were at impasse due to a lack of progress
in negotiations, which the Union disputed. The Re-
spondent then presented its “Final Company Proposal,”
which tracked its fundamental positions throughout ne-
gotiations, and instructed the Union to respond by No-
vember 26. However, the Respondent also told the Un-
ion that it had “room to move if you agree that there can
only be two [HSS specialists transferred to HSC posi-
tions].” The union representative responded, “Don’t
hold your breath.”
Following the November 18 meeting, the Union asked
for and received an extension of time to respond to the
Respondent’s final offer. The Union rejected the pro-
posal on December 4 but disputed that the parties were at
impasse and offered to meet for further negotiations.
However, it did not make any new proposals. On De-
cember 10, the Respondent declared impasse and imple-
mented the terms of its final offer, including transferring
all HSS specialists to HSC or operator positions.
Based on the foregoing facts, we adopt the judge’s
findings that the Respondent threatened adverse changes
to HSS specialists’ jobs if they voted for union represen-
tation in violation of Section 8(a)(1).7 However, as dis-
cussed below, we reverse the judge’s findings that the
Respondent violated Section 8(a)(1) by implicitly prom-
ising benefits to employees to dissuade them from voting
for union representation, Section 8(a)(5) and (1) by bar-
gaining in bad faith and unilaterally implementing its
final offer in the absence of a valid impasse, and Section

7 We adopt the judge’s finding that Human Resources Manager
Wilson and Site Manager Seidel unlawfully threatened the HSS spe-
cialists on January 16, but with the following clarifications. First, in
agreeing that Seidel’s statement was coercive, we do not rely on the
Respondent’s earlier unlawful threat at another facility because no
record evidence indicates that the HSS specialists were aware of that
threat. Next, we find it unnecessary to pass on the judge’s remark that
Seidel’s statement by itself may have been a lawful prediction. We
also do not rely on the judge’s citation to Hertz Corp., 316 NLRB 672,
695–696 (1995), where the threats at issue were found objectionable
rather than unlawful. Instead, we rely on Times-Herald Record, 334
NLRB 350, 351–352 (2001), enfd. sub nom. NLRB v. Orange Co.
Publications, 27 Fed.Appx. 64 (2d Cir. 2001) as support for the judge’s
finding that Seidel’s statement was coercive in conjunction with Wil-
son’s statement. Finally, in agreeing with the judge that Sec. 8(c) did
not protect the Respondent’s January 16 statements, we rely solely on
the fact that the threatened changes were wholly within the Respond-
ent’s control; we do not pass on the judge’s discussion of whether
objective facts supported the Respondent’s position.
We find it unnecessary to pass on the judge’s finding that the Re-
spondent unlawfully threatened HSS specialists at a January 19 meeting
with Operations and Technical Superintendent Gislason, as this finding
would not affect the remedy and therefore would be merely cumulative.
8(a)(3) and (1) by implementing its final offer in retalia-
tion for the HSS specialists’ union votes.
I. THE ALLEGED IMPLICIT PROMISE OF BENEFITS
The judge found Wilson’s “mending fences” comment
at the January 19 meeting with the HSS specialists to be
an implicit promise of benefits that violated Section
8(a)(1). In her view, the comment linked the breakdown
in the Respondent’s relationship with the HSS specialists
with the latter’s union support. Citing Wilson’s related
statement that the Respondent wished the HSS specialists
would vote against the Union, the judge determined that
the Respondent was improperly offering an improved
relationship in exchange for “no” votes. The Respondent
excepts to the judge’s finding.
Unlike the judge, we find the Respondent’s suggestion
that it would work toward mending fences with the HSS
specialists was not a promise of benefits. In so finding,
we recognize that an employer’s promise of benefits to
employees in exchange for their rejection of union repre-
sentation need not be unequivocal or precisely detailed in
order to violate the Act. See Dyncorp, 343 NLRB 1197,
1198 (2004), affd. 233 Fed. Appx. 419 (6th Cir. 2007).
On the other hand, general statements that do not identify
potential benefits but merely indicate a desire for an im-
proved relationship are not unlawful. See National Mi-
cronetics, 277 NLRB 993, 993 (1985). Here, in ac-
knowledging its past disagreements with the HSS spe-
cialists and opposition to unionization, the Respondent
said nothing that would reasonably be understood by
employees as a promise to actually improve working
conditions, whether in general or in any particular re-
spect. Thus, its statements were permissible campaign
propaganda rather than an unlawful promise of a quid
pro quo.8

8 See Noah’s New York Bagels, 324 NLRB 266, 267 (1997) (em-
ployer lawfully alluded to past mistakes, asked for a second chance,
and expressed wish to work together with employees without the peti-
tioning union); National Micronetics, 277 NLRB at 993 (employer
lawfully stated that it “had neglected to keep up with other companies
in the past” and asked both for “a second chance to see if [it] could
make things better” and for “some time”). Cf. Dyncorp, supra, 343
NLRB at 1198 (employer unlawfully mentioned specific areas of po-
tential change and told employees that he recognized that changes were
necessary, that it would be foolish for him not to address the issues, and
that significant changes would probably be made long before contract
ratification); Reno Hilton, 319 NLRB 1154, 1156 (1995) (employer
unlawfully asked for “a chance to show its commitment to [employ-
ees]” and to “deliver” after reminding them of benefits that it had re-
cently unlawfully provided to them).
The judge at times referred to the Respondent’s alleged promise of
benefits as a threat. We likewise find no unlawful threat under the
circumstances here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
II. THE ALLEGED BAD-FAITH BARGAINING
The judge found that the Respondent violated Section
8(a)(5) and (1) by bargaining with a closed mind in bad
faith, relying on two related rationales. First, the judge
found that the Respondent “knew (or should have
known)” that its proposal to transfer the HSS specialists
to different positions “was not based upon legitimate
business justifications.” Second, the judge found that the
Respondent bargained with a closed mind by making
proposals that were extensions of its preelection threat
against the HSS specialists and were consistent with its
apparent animus against their organizing activity. The
judge expressed no concerns about the Respondent’s
overall conduct in negotiations, but she found that the
Respondent’s general willingness to bargain did not
override the bad faith inherent in its proposals. In its
exceptions, the Respondent argues that the totality of its
conduct as well as the legitimacy of its business justifica-
tions show that it did not engage in bad-faith bargaining.
We agree with the Respondent that it did not bargain in
bad faith.
Nearly 70 years ago, the Supreme Court held that “the
Board may not, either directly or indirectly, compel con-
cessions or otherwise sit in judgment upon the substan-
tive terms of collective bargaining agreements.” NLRB
v. American National Insurance Co., 343 U.S. 395, 404
(1952). Those substantive terms result from negotiation
over proposals put forward by the parties. Thus, the
Board is also prohibited from sitting in judgment on a
party’s substantive bargaining proposals. See Rescar,
Inc., 274 NLRB 1, 2 (1985) (“[I]t is not the Board’s role
to sit in judgment of the substantive terms of bargaining,
but rather to oversee the process to ascertain that the par-
ties are making a sincere effort to reach agreement.”).9
The essence of bad-faith bargaining is a purpose to frus-
trate the possibility of arriving at any agreement, and the
Board looks to the totality of an employer’s conduct to
determine whether the employer has bargained in bad
faith. See, e.g., West Coast Casket Co., Inc., 192 NLRB
624, 636 (1971), enfd. in relevant part 469 F.2d 871 (9th
Cir. 1972). Section 8(d) of the Act provides that the duty

9 We recognize that the content of a specific bargaining proposal
may become relevant in determining whether a party was making a
sincere effort to reach an agreement or whether it was intent on frustrat-
ing the very possibility of reaching an agreement. See Reichhold
Chemicals, 288 NLRB 69, 69 (1988) (stating that “in some cases spe-
cific proposals might become relevant in determining whether a party
has bargained in bad faith”). This does not mean, however, that the
Board decides that particular proposals are either acceptable or unac-
ceptable. Rather, the Board “examine[s] proposals when appropriate
and consider[s] whether, on the basis of objective factors, a demand is
clearly designed to frustrate agreement on a collective-bargaining con-
tract.” Id.
to bargain in good faith “does not compel either party to
agree to a proposal or require the making of a conces-
sion.” Accordingly, even “adamant” insistence on a bar-
gaining position “is not of itself a refusal to bargain in
good faith.” Atlanta Hilton & Tower, 271 NLRB 1600,
1603 (1984).
The judge’s findings that an employer bargains in bad
faith based solely on its substantive proposals and the
fact that they are consistent with unlawful preelection
statements cannot be reconciled with these principles.
Indeed, such findings cannot reasonably stand on the
record before us, since the evidence shows that both par-
ties merely held firmly to their respective proposals, as
they were entitled to do under Section 8(d). We there-
fore reverse the judge’s findings and dismiss this allega-
tion.
A. The Respondent’s Overall Good-Faith in Bargaining
Initially, we agree with the judge’s implicit finding
that there is no evidence of bad faith in the Respondent’s
overall negotiating conduct.
At the outset of the parties’ bargaining relationship re-
garding the HSS specialists at the end of January 2012,
the Respondent showed its good faith by executing a side
letter agreement with the Union that included several
assurances designed to immediately address some of the
Union’s concerns. When bargaining commenced in
May, the parties quickly focused on several key issues.
Consistent with the ARD’s finding that there was “some
evidence” that HSS specialists direct other employees
when acting as incident commanders, the Respondent
took the position that it would be inappropriate for HSS
specialists to continue to perform incident commander
duties as members of the bargaining unit. Moreover,
since it was those duties that required an HSS specialist
to be present at the facility at all times, the Respondent
also took the position that it was unnecessary to maintain
a schedule ensuring that an HSS specialist was always on
duty—or, for that matter, to have five HSS specialists.
Accordingly, the Respondent proposed changing their
duties to eliminate incident command and related work,
altering their work schedules, and reducing their num-
ber.10 In addition, with incident command and related
duties removed from the HSS specialist classification,
the Respondent proposed replacing that classification
with a new bargaining-unit classification called health
and safety coordinator (HSC). The Union, in contrast,
sought to retain the status quo, although it also proposed

10 Consistent with the side letter agreement, in which the Respond-
ent agreed that the elimination of any HSS specialist jobs would not
result in layoffs, the Respondent proposed transferring three employees
currently occupying HSS specialist positions to the Operations Depart-
ment.
PHILLIPS 66 5
adding duties to the HSS specialist classification that
would preserve the need for an HSS specialist at the fa-
cility at all times, even if the duties of the position were
to change.11
From May to November, the parties engaged in 11
bargaining sessions and exchanged several proposals,
and it is clear from the record that throughout negotia-
tions both the Respondent and the Union engaged in hard
but lawful bargaining over the key issues. Thus, the
judge found that “throughout all of the bargaining ses-
sions, neither party moved from their original positions
vis-à-vis the Santa Maria HSS [specialists].” More spe-
cifically, the judge found as follows: (a) in June, “there
was little movement in the parties’ positions,” and the
parties “remained at odds over . . . whether the HSS
[specialist classification] warranted 24/7 coverage” and
over “the number of individuals needed to perform” the
job; (b) in July, “[t]he parties did not move substantially
off of their respective positions”; (c) in August, “the par-
ties basically regurgitated their previous positions”; and
(d) in September, “the parties made little progress,” and
the Union “essentially stood on [its] original position.”
In other words, both parties did what they were entitled
to do under Section 8(d) of the Act: they stood firm on
their respective positions. Atlanta Hilton & Tower, su-
pra, 271 NLRB at 1603.
At the same time, the Respondent also showed it was
willing to adjust its proposals, and it reached agreement
with the Union on several issues. In June, the parties
agreed to a seniority provision that would apply to any
displaced HSS specialists. In July, the Respondent pro-
posed that HSS specialists transferred to lower-paying
operator jobs retain their former HSS specialist salaries
for 13 weeks following such a transfer. Also in July, the
Respondent agreed to include the HSS specialists in an
annual salary increase, as the Union requested. In Au-
gust, the parties agreed that HSS specialists would no
longer perform Incident commander functions. That
same month, the Respondent tentatively agreed to a
$2500 lump sum ratification bonus, conditioned on the
Union’s agreement to proposed changes in HSS special-
ists’ job duties and schedules. In November, after the
Respondent presented its final offer to the Union, it
granted the Union’s request for additional time to con-
sider the offer. The conduct summarized above is not
that of an employer intent on frustrating the possibility of
reaching agreement. Rather, the Respondent was lawful-
ly adamant regarding its core positions while demonstrat-

11 Indeed, as the judge found, the Union proposed in July “to keep
all five HSS [specialists] on a 24/7 shift schedule but without the
[i]ncident [c]ommand/[o]wner function.”
ing its willingness to compromise where it could do so
without abandoning those positions.
B. The Respondent’s Business Justifications
In spite of the evidence that the Respondent met its ob-
ligation to meet and confer with the Union in good faith,
the judge found that the Respondent bargained in bad
faith in part because, in the judge’s view, it had no legit-
imate business justifications for its bargaining position.
The judge found that the Respondent was not required to
strip the HSS specialists of their allegedly supervisory
duties following the representation election. She empha-
sized the ARD’s finding that the HSS specialists were
not statutory supervisors despite “some evidence” that
they may have assumed supervisory duties as part of
their incident commander function. She also determined
that they did not in fact exercise supervisory authority as
incident commanders because they only assumed those
duties during the initial stages of an emergency, when a
“Responsible Supervisor” oversaw their work. Without
compelling evidence of the HSS specialists’ supervisory
duties, the judge found that the Respondent’s related
proposals (i.e., changes in work hours, removal of EMT
duties) also lacked justification.
In essence, the judge found that the Respondent could
not adhere to its bargaining position because its underly-
ing rationale for that position was incorrect. This is con-
trary to the Supreme Court’s holding in NLRB v. Ameri-
can National Insurance Co., supra, 343 U.S. at 404, that
“the Board may not, either directly or indirectly, compel
concessions or otherwise sit in judgment upon the sub-
stantive terms of collective bargaining agreements” (em-
phasis added).12 While the judge did not directly pass
judgment on the substantive terms of the Respondent’s
proposals, she did so indirectly by holding that the Re-
spondent could not lawfully propose those terms without
an ironclad justification. However, challenging the Re-
spondent’s interpretation of the ARD’s decision is grist
for the mill of collective bargaining: if the Respondent
misread the decision, the Union could point that out at
the negotiating table and cite it as a reason for rejecting
the Respondent’s proposals. It is not for the Board to
decide the good or bad faith of the parties based on the
correctness or incorrectness of the reasons they put for-
ward in support of their bargaining positions. Otherwise,

12 See also H. K. Porter Co. v. NLRB, 397 U.S. 99, 107-108 (1970)
(“It is implicit in the entire structure of the Act that the Board acts to
oversee and referee the process of collective bargaining, leaving the
results of the contest to the bargaining strengths of the parties.”);
Rescar, Inc., 274 NLRB at 2 (“[I]t is not the Board’s role to sit in
judgment of the substantive terms of bargaining, but rather to oversee
the process to ascertain that the parties are making a sincere effort to
reach agreement.”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
an employer would be at risk of violating Section 8(a)(5)
of the Act whenever it based a bargaining proposal on a
questionable assessment of its fiscal condition or com-
petitive position in the marketplace.
Moreover, contrary to the judge’s rationale, it is not a
condition of good-faith bargaining that an employer’s
proposals be based on “legitimate business justifica-
tions.” The Board has held that an employer bargains in
good faith when it “reasonably believes” that its proposal
“is fair and proper or that [it] has sufficient bargaining
strength to force the other party to agree.” Atlanta Hil-
ton & Tower, supra, 271 NLRB at 1603 (emphasis add-
ed). In other words, if an employer believes it has
enough leverage to obtain the union’s agreement, the fact
that its proposal may not be based, in the judge’s words,
on a “legitimate business justification” does not warrant
a finding of bad-faith bargaining. For these reasons, it
was not unlawful for the Respondent to stand firm on a
position that may have been based on an incorrect inter-
pretation of the ARD’s decision.
C. The Similarity Between the Respondent’s Proposals
and Its Unlawful Preelection Threat
The judge also separately found that the Respondent
bargained in bad faith because it “operated with a closed
mind by advancing proposals that . . . were merely exten-
sions of its preelection threats” to change HSS special-
ists’ wages, hours, and working conditions if they voted
for union representation. By finding bad-faith bargaining
based solely on the similarity between the threat and the
proposals, the judge impermissibly disregarded several
longstanding principles of Board law.
First, as already discussed, Board precedent requires
an examination of the totality of a party’s conduct to de-
termine whether it has met its obligation to bargain in
good faith. See, e.g., Public Service Co. of Oklahoma
(PSO), 334 NLRB 487, 487 (2001), enfd. 318 F.3d 1173
(10th Cir. 2003); Atlanta Hilton & Tower, supra, 271
NLRB at 1603; West Coast Casket, supra, 192 NLRB at
636. Invoking this principle, the judge relied on “other
evidence of Respondent’s bad faith” in finding a viola-
tion based on the nexus between the threat and the Re-
spondent’s proposals. However, we have reversed the
judge’s finding that the lack of a legitimate business jus-
tification for the Respondent’s proposals showed bad
faith, and there is no evidence that the Respondent did
not otherwise bargain in good faith. Thus, there is no
“other evidence of Respondent’s bad faith.” Even if the
Respondent’s unlawful preelection threat is deemed rele-
vant to a bad-faith determination, it cannot constitute the
entire basis for a finding of bad-faith bargaining without
running afoul of the well-established “total conduct”
standard.
Second, the just-cited cases also establish that the
touchstone of bad-faith bargaining is a purpose to frus-
trate the very possibility of reaching an agreement. The
mere fact that an employer advances a proposal in collec-
tive bargaining that happens to be consistent with an un-
lawful preelection statement does not establish that its
purpose is to avoid reaching agreement. This is easily
shown. Suppose an employer unlawfully threatens, in
advance of an election, that unit work will be outsourced
if the union wins. Suppose further that the union does
win, and in the course of collective bargaining the em-
ployer convincingly demonstrates to the union that sub-
contracting 20 percent of the unit’s work will make it
possible to pay for the increase in wages and benefits the
union is demanding. There is no evidence of bad-faith
bargaining in this hypothetical. Rather, the employer is
genuinely attempting to reach an agreement that accom-
modates the union’s demands while achieving a way to
pay for them. Under the judge’s theory, however, this
employer’s subcontracting proposal would be evidence
of bad-faith bargaining solely because of its connection
with an unlawful preelection threat. We reject her rea-
soning.
Third, by focusing exclusively on statements the Re-
spondent made before bargaining commenced, the judge
disregarded the evidence most directly relevant to decid-
ing any allegation of bad-faith bargaining—namely, the
party’s conduct during collective bargaining, “both at
and away from the bargaining table.” PSO, 334 NLRB
at 487. As discussed, the evidence and the judge’s own
findings demonstrate that the Respondent engaged in
hard but lawful bargaining, adhering firmly to its core
positions (as Section 8(d) expressly permits) while show-
ing flexibility where doing so would not compromise
those positions. Again, “[a] party is entitled to stand firm
on a position if he reasonably believes that it is fair and
proper or that he has sufficient bargaining strength to
force the other party to agree.” Atlanta Hilton & Tower,
supra, 271 NLRB at 1603. See also Coastal Electric
Cooperative, 311 NLRB 1126, 1127 (1993) (“failure to
make concessions, in the absence of other indicia of bad
faith, is not a sufficient manifestation of bargaining with
intent to avoid agreement”). And there is no evidence
that the Respondent did or said anything away from the
table during collective bargaining that tended to frustrate
the possibility of reaching an agreement with the Union.
Finally, once more, the judge’s rationale is impermis-
sibly based on the substantive terms of the Respondent’s
bargaining proposals regarding the potential transfer of
the HSS specialists. By finding evidence of bad faith in
the similarity between the Respondent’s proposals and its
earlier unlawful threat, the judge effectively barred the
PHILLIPS 66 7
Respondent from advancing any proposals related to
removal of incident commander duties from the HSS
specialists, at least where such proposals would adverse-
ly affect the HSS specialists’ wages, hours, and job du-
ties. This is precisely what applicable precedent—
including Supreme Court precedent—says the Board
may not do: sit in judgment on the substantive terms of
an employer’s bargaining proposals. See, e.g., NLRB v.
American National Insurance Co., supra, 343 U.S. at
404.
Again, this does not mean that the content of a bar-
gaining proposal may never be deemed relevant to de-
termining whether a party was intent on frustrating the
possibility of reaching an agreement. Indeed, the Board
has held to the contrary. See Reichhold Chemicals, su-
pra. Moreover, the Board has found bad-faith bargaining
based on statements that clearly demonstrated the em-
ployer’s desire to undermine negotiations and ultimately
rid itself of the union.13 However, the Respondent’s ex-
pressed intention to make changes to HSS specialists’
jobs if they voted to join the bargaining unit was not of
this type, and its bargaining proposals aligned with that
expressed intent did not evidence a purpose to frustrate
the possibility of reaching an agreement. As recognized
by the ARD, incident commander duties included direct-
ing unit employees during refinery emergencies, and the
Respondent did not want to assign such duties to mem-
bers of the bargaining unit. The other changes sought by
the Respondent were logical corollaries of its proposal to
remove those duties from the HSS specialists. We need
not belabor the truism that “an employer is entitled to the
undivided loyalty of its representatives.” NLRB v. Yeshi-
va University, 444 U.S. 672, 682 (1980). Nor is it con-
testable that an employer has the right to bargain for its
preferred contract terms, provided it acts in good faith.
See NLRB v. American National Insurance Co., supra,
343 U.S. at 409 (rejecting Board’s finding that employ-

13 See, e.g., Overnite Transportation Co., 296 NLRB 669, 671
(1989) (employer’s preelection statements—threatening plant closure
and loss of jobs if employees selected the Union, equating unionization
with dire consequences, stating that it would not sign a contract, and
threatening to bargain in bad faith to force a strike—showed that em-
ployer was “bent on” bargaining in bad faith), enfd. 938 F.2d 815 (7th
Cir. 1991); Port Plastics, 279 NLRB 362, 381–382 (1986) (employer’s
unyielding proposals directly reflected its stated preelection intention
not to give union “bastards” anything in negotiations); U.S. Ecology
Corp., 331 NLRB 223, 223–226 (2000) (employer’s statement to union
that employer was unwilling to reach new agreement with union and
wanted to force the union out in the hopes that it would bust itself re-
vealed employer’s improper motivation), enfd. 26 Fed. Appx. 435 (6th
Cir. 2001); NLRB v. Hardesty Co., Inc., 308 F.3d 859, 865-868 (8th
Cir. 2002) (employer statements away from bargaining table that deni-
grated union and claimed that employees would be better off without
union representation showed that employer was bargaining with no
intention of reaching agreement), enfg. 336 NLRB 258 (2001).
er’s proposal for a particular contract provision was a per
se violation of the Act). We simply hold today that an
employer does not bargain in bad faith by presenting and
adhering to a proposal concerning a specific issue—e.g.,
as here, a proposal for unit employees to no longer per-
form job functions that the employer considers supervi-
sory—because the proposal overlaps with an unlawful
preelection statement.
III. THE ALLEGED PREMATURE DECLARATION OF IMPASSE
AND UNILATERAL IMPLEMENTATION OF THE
RESPONDENT’S FINAL OFFER
The judge found that the Respondent prematurely de-
clared impasse and unilaterally implemented its final
offer unlawfully in December 2012. Citing Titan Tire
Corp., 333 NLRB 1156, 1158–1159 (2001), she reasoned
that the Respondent’s bad-faith insistence on proposals
that mirrored its unremedied January 2012 preelection
threat contributed to the parties’ inability to reach agree-
ment and thereby precluded a valid impasse. Excepting,
the Respondent argues that the judge incorrectly found
that it bargained in bad faith and that the remaining evi-
dence shows that the parties understood that they were at
impasse after bargaining on many occasions with no
movement on key issues. Because we have found that
the Respondent did not bargain in bad faith, and because
the parties’ course of negotiations shows that they were
indeed at impasse, we agree with the Respondent.
In determining whether negotiations have reached im-
passe, the Board considers several factors, including the
parties’ bargaining history, their good faith, the length of
the negotiations, the importance of the issues in dispute,
and the parties’ contemporaneous understanding of the
state of negotiations. See Taft Broadcasting Co., 163
NLRB 475, 478 (1967), review denied sub nom. Ameri-
can Federation of Television & Radio Artists, AFL–CIO
v. NLRB, 395 F.2d 622 (D.C. Cir. 1968). An impasse
finding is warranted where there is “‘no realistic possibil-
ity that continuation of discussions . . . would have been
fruitful.’” Truserv Corp. v. NLRB, 254 F.3d 1105, 1114
(D.C. Cir. 2001) (quoting Television Artists AFTRA v.
NLRB, 395 F.2d at 628) (alteration in Truserv), cert. de-
nied 534 U.S. 1130 (2002). Applying the above factors
here, the clear pattern and direction of the parties’ deal-
ings shows no realistic possibility that further negotia-
tions regarding the Respondent’s proposed changes to
the HSS specialist position would have been fruitful.
Accordingly, the Respondent lawfully declared impasse
and implemented its final offer.
To begin, we have already found that the Respondent
bargained with the Union in good faith, a critical element
in determining the existence of impasse. See AMF Bowl-
ing Co., Inc. v. NLRB, 63 F.3d 1293, 1299 (4th Cir.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
1995) (that employer bargained in good faith “bear[s]
significantly” on impasse analysis and is a “powerful
fact” in employer’s favor). After executing a side letter
agreement that addressed several of the Union’s immedi-
ate concerns, the parties met 11 times over approximate-
ly 7 months. Although they made modest progress in
narrow respects where possible, each side stood firm on
its proposals regarding the critical issues, as the judge
herself found. It is clear they took the necessary time to
understand each other’s positions and attempt to bridge
the gaps where possible. The Board and the courts have
consistently found valid impasse under similar circum-
stances. See, e.g., Calmat Co., 331 NLRB 1084, 1099
(2000) (finding impasse where it was clear after 7
months and 10 bargaining sessions that neither party
would modify its position on critical issue); Laurel Bay
Health & Rehabilitation Center v. NLRB, 666 F.3d 1365,
1374–1375 (D.C. Cir. 2012) (finding impasse where,
after 6 months of negotiations, the parties remained as far
apart as ever on critical issue). On this record, we have
no reason to reject the Respondent’s representation that
its Final Company Proposal was “final” and that it was
not willing to make any additional concessions.
Impasse may of course be broken by changed circum-
stances that revive the duty to bargain. See, e.g., Charles
D. Bonanno Linen Service, Inc. v. NLRB, 454 U.S. 404,
412 (1982); Airflow Research & Mfg. Corp., 320 NLRB
861, 862 (1996). However, the parties’ interaction fol-
lowing the declaration of impasse further evidences that
bargaining would not have been fruitful. At the Novem-
ber 18 meeting, the Respondent informed the Union that
it would return to the bargaining table “with room to
move” if the Union would agree that only two HSS spe-
cialists could be transferred to HSC positions. The Un-
ion’s representative responded, “Don’t hold your breath,”
and the Union’s ensuing silence during the 3 weeks pre-
ceding the Respondent’s implementation of its final offer
confirms that it had no intention of making any counter-
proposals or concessions that might have broken the im-
passe.
As shown by the parties’ conduct in negotiations, the
HSS specialist staffing issue was critically important to
each of them. The Respondent reasonably believed that
the HSS specialists acted in a supervisory capacity when
refinery emergencies triggered their incident commander
function. It had a fundamental objection to vesting that
function in members of the bargaining unit and thus as-
signing leadership of an entire facility during emergen-
cies to individuals with divided loyalties. The Respond-
ent further reasonably viewed the removal of the incident
commander duties as warranting more extensive changes
to the HSS specialists’ terms and conditions, including to
their classification as HSS specialists. The Union, for its
part, eventually agreed to the removal of the incident
commander duties but took the position that nothing else
of importance should change as a result. Both parties
made their positions, and their commitment to those po-
sitions, known from the very outset of negotiations, and
they firmly adhered to them thereafter. The parties’ pro-
tracted lack of progress on these critical issues further
supports a finding of impasse. See, e.g., Truserv Corp. v.
NLRB, 254 F.3d at 1118; Richmond Electrical Services,
348 NLRB 1001, 1002-1003 (2006); ACF Industries,
347 NLRB 1040, 1041 (2006).
We recognize that the parties at times expressed a ge-
neric willingness to be flexible in their positions, and
each made several limited concessions during negotia-
tions. However, these minor deviations from their oth-
erwise steadfast positions were insufficient to forestall
impasse.
A party’s “bare assertions of ‘flexibility’ on open is-
sues and its generalized promises of ‘new’ proposals” do
not, without more, demonstrate a significant change in
bargaining position. Holiday Inn Downtown-New Ha-
ven, 300 NLRB 774, 776 (1990). “Rather, there must be
substantial evidence in the record that establishes
changed circumstances sufficient to suggest that future
bargaining would be fruitful.” Serramonte Oldsmobile,
Inc. v. NLRB, 86 F.3d 227, 233 (D.C. Cir. 1996) (empha-
sis in original). The Union’s “reiterat[ion] [of its] will-
ingness to compromise,” “commit[ment] to reaching an
agreement” and request to meet again, followed by the
Respondent’s answer that it “remain[ed] committed to
bargaining in good faith to resolve these (and any other)
areas of disagreement,” does not meet this standard.
Neither party made specific proposals or counterpro-
posals, or indeed, statements with any substance whatso-
ever. See Serramonte Oldsmobile, 86 F.3d at 233 (im-
passe not avoided where “not a single one of the Union’s
statements . . . actually committed the Union to a new
position or contained any specific proposals . . . . [T]he
Union’s attorney offered only vague generalities and
neither explicitly agreed to any of the employer’s pro-
posals nor offered any specific counterproposals.”); Erie
Brush & Mfg. Corp. v. NLRB, 700 F.3d 17, 24 (D.C. Cir.
2012) (party’s statement that “I do have some give on the
arbitration issue . . . [, but] I don’t have a counter at this
point” not evidence of changed circumstances sufficient
to avoid impasse).
Further, the fact that the parties reached a few tentative
agreements and expressed willingness to compromise
over secondary issues does not mean that either party
was prepared to make additional concessions, much less
to do so on the key issues on which they were at logger-
PHILLIPS 66 9
heads. See, e.g., Truserv Corp. v. NLRB, 254 F.3d at
1115 (although employer “bargained in good faith [and]
made substantial concessions, [it] ultimately reached a
point when it was simply unwilling to compromise fur-
ther”); Television Artists AFTRA v. NLRB, 395 F.2d 622,
627 (D.C. Cir. 1968) (although “minor advances toward
agreement were being made all along,” record showed
that parties would not budge on key issue). While such
evidence of give-and-take between the parties does sup-
port a finding that they bargained in good faith, it does
not show that further negotiation would have been fruit-
ful. For instance, although the Union agreed to the re-
moval of incident commander duties from the HSS spe-
cialist position, both parties treated this change as a mere
precursor to more challenging negotiations, including
over the possible elimination of the position and the em-
ployees’ reassignment to lower-paying positions. “[A]n
impasse is no less an impasse because the parties were
closer to agreement than previously, and a deadlock is
still a deadlock whether produced by one or a number of
significant and unresolved differences in positions.”
Taft, 163 NLRB at 478.
In sum, despite assertions of flexibility devoid of sub-
stance and minor movement on issues of secondary im-
portance, the parties took opposing positions on the criti-
cal issues, all of which related to the consequences of
removing the incident commander function from the
HSS specialists. The parties bargained in good faith but
were unable to reach agreement on the key issues. The
Act requires nothing more. See AMF Bowling, 63 F.3d
at 1301 (parties “need not pursue negotiations simply to
go through the motions when there is no objectively rea-
sonable hope of reaching an agreement”). Accordingly,
since bargaining had reached an impasse, the Respondent
did not violate Section 8(a)(5) and (1) by implementing
the terms of its final preimpasse offer.
IV. THE ALLEGED UNLAWFUL RETALIATION
Finally, the judge found that the Respondent’s unilat-
eral implementation of its final offer also violated Sec-
tion 8(a)(3) and (1) on the basis that it was implemented
to retaliate against the HSS specialists for pursuing union
representation. In support, she relied upon her previous
findings that the Respondent had bargained in bad faith
and prematurely declared impasse, and she also found
that the similarity between the Respondent’s final offer
and its January 2012 statement to the HSS specialists
about the possible consequences of unionization shows
that implementation of the final offer was motivated by
antiunion animus.
As we have already found, contrary to the judge, that
the Respondent bargained in good faith to a lawful im-
passe, the only remaining question is whether the simi-
larity between the final offer and the preelection threat
provides sufficient grounds for this alleged violation.
We find that it does not. The Respondent’s good faith in
bargaining with the Union until impasse is strong evi-
dence negating any inference of continuing animus
stemming from the preelection threat. As discussed in
more detail above, the Respondent was consistently will-
ing to listen to the Union’s proposals, explain its own,
and make concessions where it was possible to do so
without abandoning its core bargaining position. Over
the course of negotiations during the 11 months follow-
ing the preelection threat, the Respondent fully explained
its valid concern about assigning incident commander
functions to members of the bargaining unit, and its ulti-
mate reassignment of the HSS specialists was the logical
outgrowth of this concern. Throughout negotiations, the
Respondent made no statements and engaged in no con-
duct that suggested it was acting with anything other than
a sincere desire to reach an acceptable agreement with
the Union. In these circumstances, the mere similarity
between the preelection threat and the Respondent’s final
offer does not meet the General Counsel’s burden of
showing that the Respondent implemented its final offer
in order to retaliate against the HSS specialists for their
union votes. See, e.g., Orval Kent Food Co., 278 NLRB
402, 403 (1986) (unlawful statement about withholding
merit increases following bargaining insufficient basis
for Section 8(a)(3) violation because statement was a
“realistic statement of the effects of the bargaining obli-
gation,” employer did not bargain in bad faith, and “the
evidence [was] insufficient to establish that its withhold-
ing of the merit increases was for any reason other than
the parties’ failure to agree on this issue”).
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By threatening its HSS specialists on January 16,
2012, that unionization would lead to the loss of job du-
ties, work hours, and existing schedules, the Respondent
violated Section 8(a)(1) of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Phillips 66, Santa Maria, California, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with adverse changes to
their terms and conditions of employment if they select
the Union as their bargaining representative.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
(b) 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 after service by the Region, post at
its Santa Maria, California facility copies of the attached
notice marked “Appendix.”14 Copies of the notice, on
forms provided by the Regional Director for Region 31,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting 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 custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If 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 em-
ployees and former employees employed by the Re-
spondent at any time since January 16, 2012.
(b) Within 21 days after service by the Region, file
with the Regional Director for Region 31 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. January 31, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

14 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.”
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 adverse changes to
your terms and conditions of employment if you select
the Union as your bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce you in the exercise of the rights
listed above.
PHILLIPS 66
The Board’s decision can be found at
www.nlrb.gov/case/31-CA-085243 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.
Nicole Pereira and Simone Gancanyo, Esqs., for the General
Counsel.
Michael Chamberlin and Julie Ting, Esqs. (Winston & Strawn
LLP), for the Respondent.
Michael Weiner, Esq. (Gilbert & Sackman), for the Charging
Party.
DECISION
Statement of the Case
LISA D. THOMPSON, Administrative Law Judge. This case
PHILLIPS 66 11
was tried in Los Angeles, California, on February 24 through
27, 2014. The trial resumed to conclusion on March 18 and 19,
2014.
On July 12, 2012, the United Steel, Paper and Forestry, Rub-
ber, Manufacturing, Energy, Allied Industrial & Service Work-
ers International Union, AFL–CIO/CLC (the USW, Local 534
or the Union) filed a charge in Case 31–CA–085243 against
Phillips 66 (Respondent or Phillips 66).1 This charge was
amended on July 25, 2012. On January 18, 2013, the Union
filed a charge in Case 31–CA–096709 against Respondent. This
charge was amended on March 6 and November 26, 2013, re-
spectively. On November 27, 2013, the Regional Director for
Region 31 consolidated both charges and issued a complaint
and notice of hearing. On December 10, 2013, Respondent
filed its answer, denying all material allegations and setting
forth its affirmative defenses to the complaint.
The consolidated complaint alleges that Respondent: (1) vio-
lated Section 8(a)(1) of the National Labor Relations Act (the
Act) when Respondent made unlawful threats/reprisals to its
Health and Safety Shift Specialists (HSS) on January 16 and
19, 2012; (2) violated Section 8(a)(5) of the Act when Re-
spondent failed to bargain in good faith with the Union by bar-
gaining with no intention of reaching an agreement; (3) violat-
ed Section 8(a)(5) of the Act by unilaterally implementing its
final proposal before reaching impasse; (4) violated Section
8(a)(3) of the Act by retaliating against its HSSs when Re-
spondent implemented its final proposal that demot-
ed/reassigned the HSSs to other lower paying bargaining unit
positions; and (5) violated Section 8(a)(1) of the Act when
Respondent promulgated and maintained an unlawful work rule
that prohibits employees from speaking to the news media.
The parties were given full opportunity to participate, intro-
duce relevant evidence, examine and cross-examine witnesses,
and file briefs. I carefully observed the demeanor of the wit-
nesses as they testified. I have studied the entire record, the
post-trial briefs, and the authorities cited therein. Based on
more detailed findings and analysis below, I find that Respond-
ent violated the Act as alleged in the complaint.
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of busi-
ness in Santa Maria, California. Respondent is engaged in the
business of oil and gas refining, marketing, and transportation.
During the 12-month period ending September 25, 2012, Re-
spondent derived gross revenues in excess of $500,000. During
this same time period, Respondent’s Santa Maria refinery sold
and shipped goods valued in excess of $50,000 directly from
points outside of the state of California. As such, Respondent
admits, and I find, that at all material times it was an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.

1 GC Exh. 1A. Abbreviations used in this decision are: “Tr.” for
Transcript; “GC Exh.” for General Counsel’s Exhibit; “CP Exh.” for
Charging Party’s Exhibit; “R.Exh.” for Respondent’s Exhibit; “GC Br.”
for the General Counsel’s Brief; “CP Br.” for the Charging Party’s
Brief; and “R Br.” for Respondent’s Brief.
Respondent further admits, and I find, that the following in-
dividuals held the positions set forth opposite their names and
have been agents of Respondent within the meaning of Section
2(13) of the Act:
Jason Gislason Superintendant of Operations
Tim Seidel Site Manager
Jerry Stumbo Site Manager
Tiffany Wilson Human Resources Manager
The United Steelworkers Union is a large international union
with members in several of Respondent’s facilities nationwide.
USW Local 534 represents the majority of the employees at the
Santa Maria refinery. As such, Respondent admits, and I find
that, at all material times, the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
1. Overview of Respondent’s Operation.
Phillips’ Santa Maria, California refinery is an industrialized
facility that processes crude oil into other more useful petro-
chemical products. It operates 24 hours a day, seven days a
week. There are 130–135 employees at the facility, and it is one
of Respondent’s smallest refineries in the United States.
Respondent has a standing collective-bargaining relationship
with the Union. The parties' most recent collective-bargaining
agreement (CBA) is effective from February 1, 2012 to January
31, 2015. The CBA, by its terms, covers operating, mainte-
nance, and laboratory employees at Respondent's refineries in
Los Angeles, Rodeo, and Santa Maria, California. Almost all of
Respondent’s refineries are unionized and most of the Santa
Maria employees are represented by the Union.
Prior to December 10, 2012, there were five HSSs at the
Santa Maria facility: Lionel Senes (Senes), Andy Garcia (Gar-
cia), Bernie Gallizio (Gallizio), Alan Lanier (Lanier), and Ste-
ven McNeil (McNeil).2 As HSSs, they conducted training, per-
mit auditing, fire, CPR, first aid, and annual safety training and
procedure reviews. The HSSs also responded to fire, medical,
hazmat and gas releases at the facility, and performed emergen-
cy medical response (EMT) duties. They also responded to all
emergencies at the facility as the Incident Commander. The
Incident Command is an emergency management system. If a
safety emergency or “incident” occurred within the refinery, the
HSS serving as the Incident Commander assumed control over
facility operations for the duration of the incident. As Incident
Commander, the HSS made all decisions regarding facility
operations during the incident and coordinated any safety re-
sponse required to mitigate potential risks.
The HSSs were also responsible for serving as the Incident
Owner. Once the “incident” was safely controlled, as the Inci-
dent Owner, the HSS investigated the cause of the incident or
near miss at the refinery. At that point, the Incident Owner
created incident impact reports where they tracked and docu-

2 Health and Safety Shift Specialists are also called Safety and
Emergency Response Specialists and Health and Safety Specialists.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
mented each incident/near miss at the refinery, ensured that the
documentation was accurate and complete regarding the inci-
dent, inputted the report into a computerized system (called the
incident impact system), and forwarded the incident to the ap-
propriate management official for further handling. Refining
incidents rarely occurred, but when they did, they typically
lasted for brief periods of time. Only the HSSs served in the
role of Incident Commander/Incident Owner. While Respond-
ent’s witnesses testified that the role and duties of the Incident
Commander were inherently supervisory, as will be set forth in
greater detail below, the HSSs controlled the refinery as Inci-
dent Commander solely during the “incident.” Once the inci-
dent was sufficiently controlled and documented, a Shift Su-
pervisor took over responsibility for the incident.
The HSSs worked a rotating 28-day shift. A shift set consist-
ed of four 12-hour night shifts with a day off; three 12-hour day
shifts with a day off; and three 12-hour night shifts. Afterwards,
the HSSs would get a week off in between sets of shifts. The
HSSs generally worked 42 hours per week.
Respondent established a detailed management structure at
the Santa Maria facility. It maintained a supervisor over each
department (i.e., health, maintenance, engineering, operations)
who reported to the Site Manager at the facility. Initially, Jeff
Patterson was the safety and emergency response supervisor in
Santa Maria. He served as the HSSs’ first-line supervisor. At
some point, Patterson was demoted as supervisor, and since
January 16, 2012, Glen Pericoli (Pericoli) served as the HSSs’
direct supervisor.3
From approximately July 2010 through July 2012, Jason
Gislason (Gislason) was the Operations and Technical Superin-
tendent (supervisor) at the Santa Maria refinery. In that role,
Gislason was responsible for most of the engineering functions
at the refinery. Gislason also oversaw the day to day operations
in Santa Maria between Patterson’s demotion and Pericoli’s
hiring. He reported to Tim Seidel.
Tim Seidel (Seidel) was the Site Manager at the Santa Maria
refinery from early 2010 through February 2012. Seidel was
Pericoli’s and Gislason’s supervisor. As Site Manager, Seidel
was responsible for the daily operational activities of the refin-
ery, including health, safety, environmental, and maintenance.
After being promoted and transferred to Respondent’s facility
in Oklahoma, Seidel left in February 2012, and Jerry Stumbo
(Stumbo) took over as Site Manager at the Santa Maria refin-
ery.
Rand Swenson (Swenson) was the Site Manager at the Ro-
deo, California refinery. He also oversaw some of the daily
operations in Santa Maria during the early management transi-
tions at the facility. Swenson served as Rodeo’s Site Manager

3 The parties stipulated that Glen Pericoli was a supervisor of Re-
spondent within the meaning of Sec. 2(11) of the Act in that he had the
authority to engage in at least one of the following: hiring, transferring,
suspension, layoffs, recall, promotion, discharge, assignment, reward,
or discipline of other employees or responsibility to direct them, to
adjust their grievances or effectively to recommend such action, and
use independent judgment in the exercise of this authority. See Tr. at.
30.
from approximately January 16, 2012 through February 2013.4
Tiffany Wilson (Wilson) was the Human Resources (HR)
Manager for the San Francisco refinery. In that role, Wilson
also performed HR duties for the Rodeo and the Santa Maria
refineries. She was responsible for personnel issues at the fa-
cilities including labor relations and grievances.
2. Organizing Campaign.
In or around September 2011, the Union began organizing
the five HSSs at the Santa Maria Refinery. In early November
2011, Senes, Garcia, Gallizio, Lanier, McNeil, and Union
Steward Willie Kerns (Kerns) took a petition to unionize to
Seidel. According to Senes, Garcia, Gallizio, and McNeil,
Seidel refused to accept their petition but Seidel denied their
version of events. However, it is unnecessary to resolve this
discrepancy, because it is undisputed that Seidel became aware
that the five HSSs intended to vote whether to join the Union.
It is undisputed that, prior to the NLRB election (discussed
below), Respondent held several meetings with the HSSs. The
first meeting occurred in November or December 2011, at the
firehouse at the Santa Maria facility. Senes, Garcia, Gallizio,
McNeil, Wilson, and Swenson were present at the meeting.
According to Senes, Garcia, and Gallizio, Wilson introduced
Swenson to the HSSs. Swenson asked the HSSs why they were
unionizing, to which Senes told Swenson that the HSSs were
having problems working with Seidel and were unhappy with
some of management’s decisions concerning them. Swenson
stated that the HSSs “got the company’s attention” by petition-
ing to unionize and that he wished he had spent more time at
the Santa Maria refinery. He went on to state that he was there
to work with the HSSs to resolve their issues. While Wilson
added that she wished that the HSSs would have contacted her
with their concerns, Gallizio replied that he previously emailed
Wilson about their concerns but received no response from her.
According to Senes and Gallizio, Swenson then told the
HSSs that he had previously run a refinery with only one su-
pervisor, he was not going to do that again, and he was not
going to hire any more people. While Senes, Garcia, Gallizio,
and McNeil admitted on cross-examination that they were ini-
tially mistaken about when this meeting occurred, Swenson was
not called to testify and Wilson did not provide any testimony
concerning this meeting. Accordingly, Senes, Garcia, and Gal-
lizio’s testimony regarding this meeting stands uncontroverted.5

4 The parties stipulated that Rand Swenson was a supervisor of Re-
spondent within the meaning of Sec. 2(11) of the Act in that he had the
authority to engage in at least one of the following: hiring, transferring,
suspension, layoffs, recall, promotion, discharge, assignment, reward,
or discipline of other employees or responsibility to direct them, to
adjust their grievances or effectively to recommend such action, and
use independent judgment in the exercise of this authority. See Tr. at
30.
5 While the statements made during this November/December 2011
Swenson meeting were outside the 10(b) period and have not been
alleged as independent 8(a)(1) violations, I admitted this testimony as
background evidence of Respondent’s alleged anti-union animus. See
East Buffet & Restaurant, Inc., 352 NLRB No. 116, slip op at 40
(2008)(citations omitted)(“employer’s statements which cannot form
the basis of a finding of an unfair labor practice ‘may be used as back-
ground evidence throwing light on…Respondent’s motivation for con-
PHILLIPS 66 13
3. Region 31 Decision and Direction of Election.
On November 2, 2011, the Union filed a petition to include
the five HSSs at the Santa Maria Refinery in the existing
statewide multi-facility bargaining unit. Respondent challenged
the appropriateness of the HSSs being included in the bargain-
ing unit based on Respondent’s belief that many of the duties
the HSSs performed made them “supervisors” under the Act.
However, it is important to note Respondent’s rationale for its
belief.
Respondent argued to Region 31 that the HSSs’ duties and
responsibilities: (1) as Incident Commander/Incident Owner,
(2) training other employees regarding safety issues/use of
safety equipment, (3) as company representative in disciplinary
situations involving bargaining unit employees and (4) other
“supervisory indicia” made them “supervisors” or “supervisory
employees” as defined under the Act.
However, in a decision dated December 21, 2011, the Acting
Regional Director (ARD) of Region 31 rejected all of Respond-
ent’s arguments and concluded that the HSSs were not supervi-
sors or supervisory employees under the Act.6 The ARD’s
rationale in this regard is particularly important.
Specifically, with respect to Respondent’s argument that the
HSSs are supervisors when they serve as the Incident Com-
mander/Incident Owner (because they are solely responsible for
decisionmaking in the facility when an emergency is invoked),
the ARD found that emergencies occur infrequently, and as
such, the HSSs spent a very small percentage of their overall
working time serving in this capacity. Moreover, the ARD not-
ed that the HSSs do not act in a supervisory capacity as the
Incident Commander. In fact, Respondent’s own written mate-
rials revealed that the HSS perform the Incident Commander
role only during the initial stages of the incident, and thereafter,
hand over control of the incident to their supervisor. The ARD
further found insufficient evidence to conclude that the HSS
responsibly directed employees or otherwise acted as a supervi-
sor when serving as Incident Owner.
Regarding Respondent’s argument that the HSSs are super-
visors because they train other employees on safety issues, the
ARD found that the record proved otherwise. In fact, the ARD
determined that the HSSs performed “routine” safety training
according to established procedure and the Safety and Emer-
gency Response supervisor was ultimately responsible for es-
tablishing the training content and procedure.
Regarding Respondent’s assertion that the HSSs are supervi-
sors because they serve in that capacity during disciplinary
meetings, the ARD rejected this argument. Specifically, the
ARD determined that:
The record is devoid of evidence that the HSS specialists hire,
transfer, suspend, lay off, recall, promote, discharge, disci-
pline employees or adjust their grievances. The only evidence

duct within the 10(b) period.’”); see also Sunshine Piping, Inc., 351
NLRB 1371, 1387 (2007)(citing Tejas Electrical Services, 338 NLRB
416, 416 n.5 (2002))(anti-union statements, even if not themselves
alleged to be violations of the Act can be relied on as evidenc to sup-
port the employer’s anti-union animus).
6 GC Exh. 13.
that HSS specialist reward employees is with respect to an in-
centive program that all employees participate in, whereby
any employee can recognize a co-worker for good work, and
the coworker receives a small trinket in return. The only evi-
dence of employee discipline involves a situation where an
HSS specialist acted as a witness to an employee infraction,
which led to that employee’s discipline. There is no evidence
that the HSS specialist sought or recommended the employ-
ee’s discipline. The discipline was not issued by the HSS spe-
cialist. The record is absent of any examples of disciplinary
action issued by, or effectively recommended by, HSS spe-
cialists towards other employees.7
Finally, the ARD concluded, contrary to Respondent’s asser-
tions, that there was insufficient evidence to suggest that the
HSSs were “supervisory employees” or agents of Respondent
based upon other “supervisory indicia.”8
Once the ARD’s Decision was issued, it is undisputed that
Respondent’s counsel gave Wilson, Seidel, Stumbo, and Gisla-
son his interpretation of the ARD’s findings. However, none of
Respondent’s management team personally read the ARD’s
Decision. Nevertheless, Respondent appealed the ARD’s Deci-
sion to the Board, and the Board declined review.9
B. Alleged Pre-Election Threats
1. Alleged Threats to Change/Remove Job Duties and Cut
Overtime—January 16, 2012 meeting.
On January 16, 2012, four days before the scheduled elec-
tion, Respondent held a second meeting with Senes, Garcia,
Gallizio, and McNeil at the firehouse at the Santa Maria Refin-
ery. Seidel and Wilson were present for management. It is
undisputed that Wilson asked the HSSs if they had any ques-
tions for management to which the HSSs stated, “no.” Wilson
also conveyed to the HSSs that the purpose of the meeting was
to give them information so they could make an informed deci-
sion on whether to vote for or against the Union. However, all
other aspects of this meeting are disputed.
According to Senes, Garcia, Gallizio, and McNeil, Wilson
told them that management felt that certain aspects of their jobs
were supervisory which would be taken away from them if they
joined the Union. Wilson also told the HSSs that Respondent
may not need to have them work a 24/7 shift. Senes recalled
that Wilson told the HSSs, because Respondent felt they were
supervisors, management would have to look at other aspects of
their job duties to see if they were supervisory. Similarly, Gar-
cia recalled that Wilson stated that there would be changes to
their jobs if they decided to join the Union because “anything
Respondent felt was supervisory would be taken away.”10
McNeil recalled that Wilson essentially told them that if the
HSSs supported the Union, they “might lose their jobs,” some
of them would be reassigned to eight-hour jobs, they would no
longer have the Incident Commander function, others may
come in and perform some of their duties, their vacation sched-

7 Id. at 20.
8 Id. at 21–23; see also GC Exh. 14.
9 GC Exh. 15.
10 Tr. at 175.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
ules might change, and some of them may be transferred to
other jobs. According to McNeil, he understood Wilson to say
that “[the HSSs] may not have their jobs if they voted for the
Union.”11
Lastly, Seidel told the HSSs that Respondent may have to
adjust their overtime if they joined the Union and that that their
job duties would be reviewed to see if Respondent needed them
on a 24-hour versus an eight-hour shift which would be a way
to mimimize overtime.
However, Wilson and Seidel denied saying anything that
conveyed any negative consequences for the HSSs voting to
join the Union. Specifically, Wilson recalled that she told the
HSSs that if they voted to join the union, Respondent would
need to engage in bargaining with the Union to discuss their
wages, hours, and job duties. She also told the HSSs that man-
agement believed some of their duties were supervisory. She
further explained that, as part of the discussion about their wag-
es, hours, and job duties, Respondent would need to discuss
their duties with the Union because Respondent could not have
bargaining unit employees performing supervisory duties. She
denied that she ever told the HSSs that they would lose their
jobs, that their hours, shifts, or overtime would be cut or that
anything negative would happen if they voted to join the Union.
Likewise, Seidel denied that he made any statements relating
to anything adverse happening to the HSSs if they voted to join
the Union. Seidel noted that the jest of the meeting was to un-
derstand why the HSSs wanted to join the Union and to explain
to them the election process. According to Seidel, he wanted to
ensure the HSSs were aware of what would need to be negoti-
ated if they decided to join the Union. However, Seidel admit-
ted he told the HSSs that if they voted to join the Union, man-
agement would need to discuss their schedules, their rate of
pay, and their duties because management believed many of
their current duties were supervisory. Seidel denied telling the
HSSs that their hours, wages, or overtime would be cut, they
would no longer work a 24/7 schedule, or that they would lose
their jobs if they voted to join the Union.
At this point, it is important to discern precisely what was
said by whom during this meeting, a matter that turns on an
evaluation of credibility. While this is a close credibility ques-
tion, I credit Senes’, Garcia’s, and Gallizio’s testimony over
that of Wilson and Seidel.
First, there is no dispute, based upon all of the witnesses’ tes-
timony, that Wilson and Seidel told the HSSs that management
felt that certain aspects of the HSSs’ job duties were superviso-
ry, and that those duties would need to be reassigned, because
Respondent believed they could not have bargaining unit em-
ployees performing supervisory duties. In fact, Wilson and
Seidel admitted to these statements. I also find that Senes’,
Garcia’s, and Gallizio’s testimony was consistent, specific as to
the statements made versus generalized assertions, and support-
ed by one another. Although McNeil basically reiterated
Senes’, Garcia’s and Gallizio’s testimony about what Wilson
and Seidel told them during the meeting, McNeil essentially
paraphrased Wilson’s and Seidel’s statements. Because of this,
I will not rely on McNeil’s testimony.

11 Tr. at 496–497.
However, I do not credit Wilson’s or Seidel’s testimony con-
cerning their statements. Although Wilson and Seidel couched
their testimony concerning what they told the HSSs by stating
that management “would need to discuss” certain of the HSSs’
job duties, schedules, etcetera, with the Union, I find Senes’,
Garcia’s, and Gallizio’s version more consistent with Wilson’s
and Seidel’s overall testimony that management felt that some
of the HSSs’ duties were supervisory, and if so, those duties
would need to be removed from them which would necessitate
a change in their hours, shifts, and schedules. Most importantly,
I found Wilson’s testimony on other areas, particularly on
cross-examination, evasive and, at times, unbelievable which
called into question her overall testimony and credibility.
Accordingly, I find that Wilson told the HSS that: (1) man-
agement felt that certain aspects of their jobs were supervisory
which would be taken away from them if they joined the Un-
ion, (2) Respondent may not need to have the HSS on a 24/7
shift (because without those supervisory duties, they may not
have a business need for the HSS to work a 24/7 shift), and (3)
because Respondent felt that the HSSs were supervisors, man-
agement would have to look at other aspects of their job duties
to see if they were supervisory. I also find that Seidel told the
HSS that Respondent may have to adjust their overtime if they
joined the Union, and their job duties would be reviewed to see
if Respondent needed them on a 24-hour versus an eight-hour
shift which would be a way to mimimize overtime.
2. Alleged Threats—January 19, 2012 Stumbo meeting.
On January 19, 2012, one day before the scheduled election,
Respondent held another meeting with Senes, Garcia, Gallizio,
and McNeil at the the Santa Maria Refinery. Wilson, Stumbo,
and Gislason were present for management.
It is undisputed that, as the new Site Manager at the Santa
Maria refinery, Stumbo introduced himself and described his
background working for Respondent. However, again, every-
thing else about this meeting is disputed.
According to Senes, Garcia, Gallizio, and McNeil, Stumbo
told them that he wanted to mend the relationship between the
HSSs and management, but Stumbo denied making this state-
ment at the meeting. Stumbo also told the HSSs that they had a
tough decision regarding whether to join the Union, but Stumbo
did not testify one way or the other about this statement.
According to Senes, Garcia, Gallizio, and McNeil, Wilson
told them that it was management's preference that they vote
“no” for the Union and management preferred to deal directly
with the HSSs versus through the Union. Wilson also told the
HSSs that if they voted against the Union, management would
work toward "mending fences" between management and the
HSSs. In response, Garcia replied, "So what you’re saying is, if
we join the Union, you're not going to work with us?” to which
Wilson did not respond. Garcia described that there was “an
awkward silence” after his statement then Gislason interjected,
“What Wilson meant was we can’t talk to you, we have to go
through the Union.”12
Regarding the “mending fences” comment, none of Re-
spondent’s witnesses denied that Wilson made the remark.

12 Tr. at 79, 176–177, 456–458, 498–499.
PHILLIPS 66 15
Although Gislason denied that Wilson ever said anything to
discourage the HSSs from voting for the Union, he never spe-
cifically denied that Wilson made the “mending fences” re-
mark.
For her part, Wilson admitted that Stumbo told the HSSs that
he wanted to repair the relationship between the HSSs and
management. However, according to Wilson, she followed up
Stumbo’s comment by saying,“if [you] decide to go union,
[Respondent] would have a legal obligation to discuss manda-
tory subjects of bargaining with the Union on your behalf and
[Respondent] would be unable to talk directly with you about
wages, hours and working conditions.”13 In response, Gallizio,
not Garcia, replied, “So are you saying that you don’t want a
relationship with us?” to which Wilson responded “no, that’s
not what I’m saying.”14
Again, it is important to discern what was said by whom dur-
ing this meeting, which, again, boils down to an evaluation of
credibility. Here, I credit Garcia’s testimony concerning the
statements made at this meeting.
First, Garcia’s testimony is consistent with and corrobated by
the testimony of Senes, Gallizio, and McNeil. Second, none of
Respondent’s witnesses refuted Garcia’s testimony concerning
what Wilson told them, which lends further support toward
Garcia’s version of the meeting. Third, Wilson admitted on
cross-examination that she told the HSSs that management
preferred that they vote “no” on unionizing and would prefer to
deal directly with them which, again, supports Garcia’s testi-
mony. Moreover, as stated above, Wilson’s credibility is dimin-
ished overall as she was extremely evasive in her testimony
during cross-examination, particularly when questioned by
union counsel, and only after being instructed to answer a ques-
tion directly, did she answer counsel’s questions.
Fourth, neither Stumbo nor Gislason specifically denied that
Wilson told the HSSs that if they voted against the Union,
management would work with them to mend fences. Although
Wilson testified to a version of this statement by couching it in
the content of bargaining with the Union, I find her version
incredible. Specifically, if Wilson made the statement which
she testified, it defies common sense that Gallizio (according to
her version), who has some familarility with working in a un-
ionized environment, would have misunderstood her remark to
such an extent that he would have replied, “So are you saying
that you don’t want a relationship with us?” Rather, it seems
more logical that Wilson told the HSSs that management would
work to “mend fences” if they voted against the Union, which
prompted Garcia to respond the way he did. In fact, it is undis-
puted that the HSSs already told Wilson that they were having
difficulties with some of management’s decisions concerning
the HSSs (the reason they were considering unionizing) so I
find it more reasonable for Wilson to have made the “mending
fences” remark against that backdrop. Finally, Garcia’s version
of events is particularly believable given that Wilson admitted
that she told the HSSs that management preferred that they vote
against unionization.
Accordingly, I find that, after Stumbo introduced himself

13 Tr. at 829–830.
14 Tr. at 830–831.
and gave his background, he told the HSSs that: (1) they have a
tough decision before them vis-à-vis whether to join the Union,
nevertheless (2) he looked forward to working with them to
repair their relationship with management. I also find that Wil-
son then told the HSSs that: (1) management preferred that they
vote against the Union, because management preferred to deal
directly with the HSSs versus through the Union, and (2) if they
voted against the Union, management would work toward
“mending fences” between the HSSs and management. I further
find that, after Wilson’s remark about “mending fences,” Gar-
cia replied, “so what you’re saying is, if we join the Union,
you’re not going to work with us?” to which Gislason interject-
ed, “What Wilson meant was we can’t talk to you, we will have
to go through the Union.”
At some point after the Stumbo meeting, Senes documented
the discussions between the HSSs and Wilson and Seidel dur-
ing the January 16, 2012 meeting.15 According to Senes, he
gave his statement to the Union but he was evasive on when he
wrote the statement and could not recall when or to whom in
the Union he gave the statement. However, none of the other
HSSs recalled reporting Wilson’s or Seidel’s statements during
the January 16 meeting to anyone in the Union.
C. Alleged Threat of Reprisal
1. January 19, 2012 Gislason meeting.
Immediately after the January 19, 2012 meeting, Senes, Gar-
cia, Gallizio, and McNeil returned to the firehouse to discuss
what happened. Again, this is the only fact that is undisputed.
According to Senes, Garcia, Gallizio, and McNeil, several
minutes later, Gislason arrived at the firehouse and asked if he
could talk to them. Gislason told the HSSs he was concerned
about them to which Gallizio replied that he did not like how
the meeting went and the HSSs felt that their jobs were being
threatened. Gislason replied that their concerns were justified
and told the HSSs that everything Wilson and Seidel had previ-
ously told them about their jobs was going to happen. Gislason
followed up by saying that he was worried about them and their
decision to join the Union because Respondent wanted to make
their decision to join the Union as undesirable as possible so
that other HSSs at other refineries would not vote to join the
Union.
Sometime after the Gislason meeting, Senes again docu-
mented the discussions during the Stumbo and the Gislason
meetings.16 Although Garcia, Gallizio, Lanier, and McNeil also
signed the statement, neither Senes (nor any of the other HSSs)
could recall the exact details or circumstances surrounding
when or how they signed the statement. While Senes recalled
that he gave this second statement to the Union, he could not
recall when or to whom in the Union he gave the statement.
Gislason vehemently denied the statements attributed to him
during this meeting. According to Gislason, he never met with
Senes, Garcia, Gallizio, or McNeil after the Stumbo meeting,
because he was previously told that the 24-hour period before
an election was protected. As such, Gislason made sure that he
had no conversations with the HSSs after the Stumbo meeting.

15 R. Exh. 6.
16 R. Exh. 7.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
Rather, Gislason explained that, after the Stumbo meeting, he
returned to his office, stayed there for the remainder of the day
and never went to the firehouse that day.
After closely reviewing the transcript, I found both the
HSSs’ and Respondent’s witnesses’ testimony troubling for
several reasons. First, while McNeil’s testimony was consistent
on direct and cross examination and was corroborated by the
testimony of Senes, Garcia, and Gallizio as well as by their
signed statement, I find that Senes, Garcia, Gallizio, and
McNeil were particularly evasive during cross-examination
about when they signed the January 19 statement, to whom
within the Union they gave the statement, and the reasons why
they did not initially recall or report this meeting. Second, I am
particularly troubled by the fact that McNeil recalled all the
specific details of the Stumbo meeting in his Board affidavit
but never mentioned the Gislason meeting that purportedly
occurred 10 minutes later.
Specifically, McNeil was asked:
Q (by Respondent’s counsel): And in that affidavit, you didn’t
mention anything at all about your meeting with Jason Gisla-
son on January 19th, that you described here today; did you?
A: No.
Q: That meeting with Jason Gislason on the 19th, that hap-
pened – your testimony was that that happened after a meet-
ing with Jerry Stumbo?
A: Correct.
Q: And you said it was about ten minutes later?
A: Yes.
Q: And you said it lasted around 10 or 15 minutes in total?
A: Correct.
Q: And I believe you testified that Jason came down to the
firehouse; is that correct?
A: Correct.
Q: Are you certain that happened on the 19th?
A: One hundred percent.
Q: And you’re absolutely certain that Jason said the things
that you said he said?
A: One hundred percent.
Q: No doubt in your mind at all?
A: No doubt in my mind at all.17
McNeil explained that he forgot to mention the Gislason meet-
ing in his Board affidavit because he could not recall all the
details of every meeting when asked about them one year after
the events occurred. However, I find it unreasonable to believe
that, at the time of the Board affidavit, McNeil (and the other
HSSs) could recall all the specific details of the Stumbo meet-
ing but could not recall anything about the Gislason meeting
that purportedly occurred 10 minutes later. Most importantly,
the heart of the Gislason meeting supposedly confirmed that the
alleged threats and reprisals (made by Wilson and Seidel)
would occur if they voted for the Union. Thus, it stretches the
imagination that these types of statements did not trigger any-
one’s recollection about the Gislason meeting at the time of the
Board affidavit.

17 Tr. at 508–509.
Moreover, while Garcia described what he recalled of the
Gislason meeting in his Board affidavit, he spoke in broad gen-
eralities about what occurred. In contract, Garcia described
Respondent’s statements during the January 16 and 19, 2012
meetings in specific and concrete terms. In short, I was suspi-
cious of the HSSs’ testimony concerning the Gislason meeting.
I also found Gislason’s testimony regarding this meeting
equally troubling. First, Respondent failed to present any doc-
umentary evidence to support Gislason’s testimony that he was
in his office during the period in question. Second, although
Gislason appeared posed and confident during some of his tes-
timony, I found him evasive and inconsistent during other por-
tions. For example, I found Gislason disingenuous when he
testified that he specifically recalled what Stumbo told the
HSSs about his background (a rather insignificant part of the
meeting) but could not recall specifically what Wilson or
Stumbo told the HSSs about the election process or what would
happen regarding their duties, schedules and wages if they
joined the Union (the sole purpose of the meeting).
On balance, however, I conclude that the Gislason meeting
occurred and that Senes’ and Garcia’s version should be credit-
ed. First, despite my reservations about certain aspects of their
testimony, Senes’ and Garcia’s testimony was corrobated by
each other, Gallizio and McNeil. Most importantly, however, I
must credit their testimony over Gislason’s because Senes and
Garcia were in Respondent’s employ at the time of the hearing
and testified while management representatives were present.
Under these circumstances, their testimony has a special guar-
antee of reliability, because, by offering evidence that essential-
ly accuses Respondent of wrongdoing, they put their economic
security at risk.18 The HSSs’ version is further supported by
evidence, which will be discussed in further detail later in this
decision, that Respondent implemented a proposal at another
refinery that was remarkably similar to the adverse predictions
made to the HSSs in Santa Maria. Thus, what Gislason purport-
edly told them (i.e., that Respondent intends to make their vote
difficult so that other HSSs will not vote for the Union) has
some basis in fact.
Accordingly, I find that, after the Stumbo meeting, Gislason:
(1) met the HSSs at the firehouse; (2) told the HSSs that Re-
spondent intended to follow through on their alleged threats
(i.e., to cut their work hours, schedules, and overtime); and (3)
Respondent intended to make their decision as difficult as pos-
sible in order to discourage them and other HSSs from voting in
the Union.
2. Election/Certification
On January 20, 2012, Region 31 conducted an election for
the HSSs at Santa Maria Refinery. The HSSs voted 5-0 to join
the Union. On January 31, 2012, the Regional Director for Re-
gion 31 issued a Certification of Representative certifying the
Union as the collective-bargaining representative of employees
in the following unit:
Included: All operating maintenance, laboratory employees,
and health and safety shift specialists at the Employer's Santa

18 See Gold Standard Enterprises, 234 NLRB 618, 619 (1978).
PHILLIPS 66 17
Maria Refinery.
Excluded: All other employees, guards and supervisors as de-
fined in the Act.19
D. Alleged Failure to Bargain in Good Faith
1. January 2012 Statewide Bargaining Session
It is undisputed that Respondent and the USW met through-
out January 2012 in Walnut Creek, California, to negotiate a
successor statewide agreement covering employees at Re-
spondent’s Rodeo, Santa Maria and Los Angeles refineries.
During these negotiations, the Union presented two bargaining
proposals to Respondent concerning the Santa Maria HSSs.
However, Respondent rejected these proposals because, at that
time, the election results for the Santa Maria HSSs had not been
certified.20
It is also undisputed that, toward the end of the statewide ne-
gotiations, Respondent and the Union entered into preliminary
discussions about the Santa Maria HSSs before the Union was
certified as their bargaining representative. While the Union
asked that Respondent promise to retain all five HSSs in their
positions, Respondent rejected this offer because management
had not yet evaluated how its business and operational needs
would be impacted by the decision.
However, after further discussions, on January 30, 2012, the
parties executed a side letter agreement regarding the HSSs. In
so doing, the parties agreed:
Within (30) days following ratification of the 2012 Collective
Bargaining Agreement, the Company agrees to meet with the
Union to commence bargaining related to the Health & Safety
Shift Specialists at the Santa Maria Refinery. At the conclu-
sion of the bargaining process, the Company agrees to assign
a wage rate of $32.80 plus NOBP [National Oil Bargaining
Pattern Increase] to the Health & Safety Shift Specialist posi-
tion (title subject to change through the bargaining process).
Should any Health & Safety Shift Specialist (title subject to
change through the bargaining process) positions be eliminat-
ed as a result of the collective bargaining process, the Compa-
ny agrees not to lay off any impacted employees. The focus of
this job classification will remain Health & Safety and will
contain Health & Safety job duties.21
With the January 30, 2012 side letter agreement in place, Re-
spondent and the USW reached a tentative agreement concern-
ing the statewide collective-bargaining agreement on January
31, 2012. The statewide contract was ratified on February 1,
2012.22 Although the parties were required to begin negotia-
tions about the HSSs, they agreed to postpone discussions for
several months until after Respondent’s turnaround was com-

19 GC Exh. 16.
20 R.Exhs. 31–32.
21 GC Exh. 18.
22 GC Exh. 17.
pleted.23
During the time between February 2012 and when the bar-
gaining sessions began (in May 2012), Respondent began re-
viewing the duties and responsibilities of the HSSs in light of
the ARD’s Decision and the HSSs’ election. In determining
whether the HSSs performed any supervisory duties, Wilson
believed the Incident Commander/Owner function was supervi-
sory in nature. According to Wilson, she was told by counsel
that the ARD found that the HSSs did not spend a sufficient
amount of time performing the Incident Commander/Owner
and other supervisory indicia-type duties to be considered su-
pervisors. However, Wilson admitted that she never read the
ARD’s Decision which, in reality, specifically found insuffi-
cient evidence that the Incident Commander/Owner function or
various others duties performed by the HSSs were supervisory
in nature.
Nevertheless, Wilson asked Stumbo to examine the HSSs’
job duties to determine if any of their duties were supervisory.
Stumbo consulted with Supervisor Pericoli and they reviewed
all of the HSSs duties. Despite that the ARD conclsuded other-
wise, Stumbo concluded that the Incident Commander respon-
sibility was a supervisory function which should be removed
from the HSSs. According to Stumbo, one of the primary rea-
sons for having the HSSs work a 24/7 shift was due to their
responsibility to serve as Incident Commander. With this func-
tion removed, Stumbo concluded that the HSSs’ remaining
duties did not warrant 24/7 shift coverage. Stumbo further de-
termined that the HSSs’ remaining duties could be performed
on an eight-hour day schedule, so he concluded that Respond-
ent only needed one full-time employee to perform the remain-
ing HSSs duties. It is undisputed that Stumbo had not read the
ARD’s Decision during this time period.
Accordingly, despite that the ARD concluded that there was
insufficient evidence that the Incident Commander/Owner and
EMT duties were supervisory in nature, Respondent, at mini-
mum, misinterpreted the ARD’s findings and drew its own
conclusions on the HSSs’ duties it believed were supervisory.
This decision would prove fatal for Respondent.
2. May-November 2012 Bargaining
From May to November 2012, the parties engaged in eleven
bargaining sessions and exchanged several proposals regarding
the terms and conditions of employment for the HSSs. For the
majority of the sessions, Field Director of Local 675 Gary Hol-
loway (Holloway), International Union Representative Ron
Espinoza (Espinoza), Committee Member Steve Swader
(Swader), Garcia, Refinery Committee Member Richard
Wingert (Wingert) and Committee Member Bryan Sawtelle
(Sawtelle) represented the Union. Wilson and Los Angeles HR
Manager Pam Morgan (Morgan) represented Respondent. Mike
Welsh (Welsh) served as counsel for management, but he was
later replaced by John McLachlan (McLachlan). Gislason also
participated in the early session until around July 2012 when he
moved to Houston. All of the bargaining sessions took place the
Hilton Garden Inn in Santa Maria.

23 A “turnaround” occurs when an operating unit is completely shut
down for full scale maintenance. A turnaround requires the participa-
tion of all personnel at the refinery, including Union representatives.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
It is undisputed that, throughout all of the bargaining ses-
sions, neither party moved from their original positions vis-à-
vis the Santa Maria HSSs. Specifically, Respondent’s position
was essentially that, in reviewing all of the HSSs responsibili-
ties, Respondent believed that the Incident Command function
was supervisory in nature, which accordingly, did not belong in
the bargaining unit position. Because the Incident Command
function necessitated having five HSSs work on a 24/7 shift,
without this function, Respondent determined that changes to
the HSSs position were necessary because Respondent did not
have a business need to maintain all five HSSs performing
work on a 24/7 shift.
In contrast, the Union’s position was essentially to keep all
five HSSs in place with all of their duties they maintained prior
to the election. To the extent that the HSSs duties without the
Incident Command function did not warrant a 24/7 shift, the
Union attempted to negotiate duties to include to the HSSs
position in order to maintain the 24/7 shift coverage.
a. May 2012 Bargaining Sessions
It is undisputed that the parties spent the bulk of the May ne-
gotiations discussing the HSSs’ job duties. In this regard, Re-
spondent presented a proposal for discussion that listed all of
the HSSs duties it believed should be part of the bargaining unit
position.24 Because Respondent believed it needed to remove
any duty it felt was supervisory in nature, Respondent pro-
posed, the parties discussed and ultimately exchanged docu-
ments concerning the job duties for a newly created bargaining
unit position called the Health and Safety Coordinator (HSC)
which would replace the HSS position.25 The HSC position was
essentially a bargaining unit position that included what Re-
spondent believed were the HSSs remaining nonsupervisory
duties.
Wilson explained to the Union that, with the removal of what
Respondent believed were the HSSs’ supervisory duties (i.e.,
the Incident Command/Owner duties), there was no business
justification to have HSSs on 24/7 shift coverage. Without the
necessity of 24/7 shift coverage, Wilson explained it was no
longer necessary to have five HSSs.
Respondent also proposed reassigning the HSSs’ EMT du-
ties. In that regard, Respondent explained that, while it be-
lieved that these duties were not supervisory in nature, it envi-
sioned having outside contractors perform EMT duties, because
Respondent believed it needed certified EMTs on a 24/7 basis
at the refinery.
For its part, the Union strongly maintained that all five of the
HSS should remain on shift. Regarding the alleged “threats,”
while Holloway was generally aware of the alleged threats and
reprisals made by management during the January 16, the
Stumbo and the Gislason meetings, he was extremely evasive
regarding when he became aware of the threats, who told him
about the threats, and whether he had received the HSSs state-
ments by the May 2012 negotiations. Nevertheless, it is undis-
puted that no one raised the alleged threats during these negoti-
ations.

24 GC Exhs. 2, 21–22.
25 GC Exh. 20.
b. June 2012 Bargaining Sessions
It is undisputed that there was little movement in the parties’
positions during the June bargaining sessions. Initially, the
parties discussed the job duties outlined in General Counsel’s
Exhibit 22 and who would be performing which job. Respond-
ent proposed a list of duties for the HSC position, which did not
include the Incident Command/Owner or EMT functions.26 The
Union presented a counterproposal, which essentially called for
five HSC/HSS to perform the same job duties, including the
Incident Command/Owner function, as they previously per-
formed on a 24/7 shift schedule.27
In response, Respondent countered by proposing the creation
of two HSC positions (versus one HSC as previously recom-
mended by Stumbo) that would be staffed on an eight hour day
schedule, at an Operator 2 wage rate of $32.80 per hour. This
wage rate was less than what the HSS were earning as salaried
employees. The three remaining HSSs would be transferred to
the Operations department.28 While Respondent believed that it
had no business justification to employ five bargaining unit
HSS on a 24/7 shift without the Incident Command/Owner
function, the Union rejected Respondent’s proposal, asserting
that other nonsupervisory duties could be performed on a 24/7
basis that justified employing all five HSSs. Because of this
stalemate, the parties shifted their discussions toward filling
open positions and job protection for the HSS. The parties ex-
changed proposals in that regard and ultimately reached a tenta-
tive agreement regarding seniority in the event that any of the
HSSs were displaced.29
Accordingly, by the end of the June 2012 sessions, it is un-
disputed that the parties remained at odds over: (1) whether the
HSS position warranted 24/7 coverage, and (2) the number of
individuals needed to perform the position. Moreover, there
was no mention of the alleged threats or reprisals made by Wil-
son or Seidel.
c. July 2012 Bargaining Sessions
The parties did not move substantially off of their respective
positions during the July 2012 negotiations. However, in an
effort to compromise, the Union proposed to have four HSS on
a 24/7 shift schedule and one HSC on a day schedule to provide
relief coverage.30 However, Holloway admitted that this pro-
posal was no different than the status quo—i.e., five HSS on a
24/7 shift schedule which consisted of four HSS working a 24/7
shift and one HSS providing relief coverage.
In response, Respondent essentially maintained its position –
i.e., to have two HSC on an eight hour day schedule, with the
remaining three HSS transitioning into Operations. However,
Respondent also proposed providing 13 weeks of wage protec-
tion for any of the HSSs who would be transferred to the Oper-
ations department.31 The Union rejected both of Respondent’s
proposals. At this point, Union referred to and gave Respondent

26 GC Exh. 48.
27 GC Exh. 23.
28 GC Exh. 24.
29 GC Exhs. 28.
30 GC Exhs. 29, 31.
31 GC Exhs. 30, 51.
PHILLIPS 66 19
a copy of the ARD’s Decision to support their position that the
Incident Command/Owner function was not supervisory in
nature (or any of the other duties Respondent believed were
supervisory), thus, the HSSs duties need not be removed from
them. However, Wilson never read the specifics of the ARD’s
rationale during the July negotiations, and as such, the parties
maintained their respective positions.
After Respondent’s proposals were rejected, it is undisputed
that, during the July 5, 2012 session, the Union told Respondent
about the alleged threats of reprisals made by Gislason if the
HSSs joined the Union. Holloway also read the HSSs’ written
statements to Respondent. Although Holloway was aware of
the alleged threats prior to July 5, he told Respondent about the
alleged threats during this session because, according to him, it
was during this session when it became clear to the Union that
Respondent intended to carry out their threats. However, I
found Holloway’s testimony evasive and inconclusive on this
point.
Nevertheless, after learning of the alleged threats, Wilson
asked Gislason whether he made any threatening statements or
remarks that could be construed as threats to the HSSs. Gisla-
son denied making any such statements.
With no significant movement in negotiations, the Union re-
directed the discussion and proposed that Respondent apply its
annual salary adjustment to the HSSs. While Respondent disa-
greed that the HSSs were now eligible for the increase (because
they were now considered bargaining unit versus salaried em-
ployees), because they were salaried employees prior to the
election, Respondent agreed that the HSSs would receive the
adjustment.32
Accordingly, at the end of the July 2012 bargaining sessions,
the parties’ positions essentially remained unchanged. The
Union proposed to keep all five HSS on a 24/7 shift schedule
but without the Incident Command/Owner function, and Re-
spondent proposed to create two HSC positions and move the
remaining three HSS into Operations at their HSS salary for 13
weeks.
As a result of the continued stalemate between the paties, in
a letter dated July 6, 2012, Wilson expressed concern about the
slow pace and lack of progress in the negotiations and urged the
Union to spend more time negotiating over the issues regarding
the HSSs.33
d. August 2012 Bargaining Session
During the August bargaining sessions, the parties basically
regurgitated their previous positions. The Union again proposed
to keep all five HSS on a 24/7 shift schedule, except the HSS
would not perform the Incident Command/Owner function or
assume a leadership role. However, this time, the Union re-
quested that the HSSs receive a lump sum payment.34 Re-
spondent accepted that the HSS would not assume a leadership
role and agreed to the lump sum payment on the condition that
the Union agree to accept two HSC positions on an eight hour
day shift schedule and move the three remaining HSS into Op-

32 GC Exh. 31.
33 GC Exh. 70.
34 GC Exhs. 34, 36.
erations with wage rate protection.35 As such, neither party
substantially moved from their original positions.
Near the end of the August negotiations, the Union suggest-
ed that Garcia review all of the duties of the HSSs and suggest
additional duties that the HSSs could perform to justify main-
taining round the clock coverage. Respondent agreed to consid-
er Garcia’s suggestions.
e. September 2012 Bargaining Sessions
Again, the parties made little progress in negotiations during
the September bargaining sessions. Although Garcia suggested
additional duties that could justify maintaining 24/7 coverage,
Respondent determined that none of the additional duties pro-
vided a legitimate basis to employ five HSS on a 24/7 shift.36
Accordingly, Respondent again proposed to assign two HSC
and pay them at the Operator 2 rate and move the remaining
three HSS to Operations at the Operator 2 rate. The Union was
required to respond to the proposal by September 16, 2012;
otherwise, Respondent’s proposal would become effective.37
Once the parties reconvened for another bargaining session,
the Union essentially stood on their original position, i.e., to
add the HSC to the CBA, as a 24/7 shift position, and maintain
all the job duties performed by the HSSs except that of Incident
Command/Owner.38 Respondent rejected this proposal.
At some point, Respondent suggested and the parties dis-
cussed an agreement reached between Respondent and the Un-
ion regarding the HSSs at Respondent’s Alliance refinery in
Louisiana. There, Respondent and the Union agreed to a pro-
posal whereby, after the Alliance HSSs’ unionized, three HSS
became HSCs on an eight hour day schedule and two HSS were
transferred into Operations. However, this proposal was not
acted upon.
Meanwhile, Respondent again proposed to have two HSCs
work an eight hour day schedule, (which two HSCs to be de-
termined by the Union), and transfer the remaining three HSS
into Operations.39 Sometime later, Respondent outlined the
HSCs’ duties, how many HSSs would become HSCs, how
many would move into Operations, and their respective wage
rates.40 However, in this proposal, the HSSs moving to Opera-
tions would receive the Basic Trainee rate of $23.30 per hour
versus the Operator 2 rate as previously proposed.41 Although
the Union rejected this proposal and told Respondent’s team
that they were following through on the alleged threats to pun-
ish the HSSs for unionizing, Respondent withdrew the previ-
ously proposed Operator 2 wage rate when the Union failed to
respond by the September 16, 2012 deadline. In any event,
Respondent denied making good on any alleged threats against
the HSSs.
Accordingly, by the end of the September negotiations, the
parties’ positions still remained unchanged. There were no

35 GC Exh. 37.
36 GC Exh. 76.
37 GC Exh. 52.
38 GC Exh. 38.
39 GC Exh. 54.
40 GC Exh. 39.
41 Id.; see also GC Exh. 52.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
bargaining sessions in October.
3. October 26, 2012 Letter
On October 26, 2012, Respondent sent a letter to the Union
reiterating the business justifications for its bargaining pro-
posals.42 Respondent again explained to the Union that it de-
termined that the Incident Command function was supervisory
because, during an emergency, the Incident Commander/Owner
would outrank the Plant Manager. As such, Respondent could
not have a bargaining unit employee serving in that role.
Therefore, according to Respondent, the Incident Owner duties
needed to be assigned to a supervisor to avoid a potential con-
flict of interest where a bargaining unit HSS may be required to
investigate a fellow bargaining unit employee. Again, this ra-
tionale was directly contrary to the ARD’s findings.
Respondent further noted that, with the removal of all of the
supervisory aspects of the HSSs’ duties, it no longer justified
keeping all five HSSs on 24/7 shift schedule. Respondent fur-
ther explained that the EMT duties were never a necessary job
function for the HSSs, and as such, could be filled by other
means. Interestingly, Respondent’s letter noted, “now that they
[the HSSs] have made that choice [to join the Union], the
Company must make appropriate changes to its operations to
ensure supervisory duties are performed by supervisors; this
merely reflects the necessary changes which are legitimate and
logical consequences of that choice.”43
4. November 18, 2012 Bargaining Session and Respondent’s
Final Offer
The parties held another bargaining session on November 18,
2012. Wilson explained to the Union that Respondent’s team
felt the parties were at impasse because, after numerous ses-
sions, neither had essentially moved from their respective posi-
tions. To that end, Respondent presented its final offer, which
reflected their overall position. In short, Respondent (again)
proposed two HSCs work an eight hour day schedule and per-
form most of the HSS’s duties except the Incident Own-
er/Command and EMT functions. Respondent proposed to
transfer the remaining three HSSs into Operations at the Opera-
tor 1 wage rate. The Union was required to respond by Novem-
ber 26, 2012.44 McLauglin, Respondent’s counsel, told the
Union that there was room for movement if the Union agreed to
the two HSCs, but Holloway reportedly responded, “Don’t hold
your breath.” For his part, Holloway was evasive and inconclu-
sive in confirming this remark, stating, “I may have said that. I
don’t remember.”45
Following these negotiations, the Union requested an exten-
sion of time to respond to Respondent’s proposal to which Re-
spondent granted.46 However, in a letter to Respondent dated
December 4, 2012, the Union rejected Respondent’s final pro-
posal.47 While the Union explained that it did not believe the
parties were at impasse, the Union did not offer any additional

42 GC Exh. 56.
43 Id.
44 GC Exh. 40.
45 Tr. at 316, 395, 940–941.
46 GC Exhs. 40–42.
47 GC Exh. 44.
proposals.48
Respondent sent a response letter to the Union reiterating its
position that there was no business justification for five HSS on
a 24/7 shift and its belief that the parties had reached impasse in
negotiations. Respondent informed the Union that, as a result of
the impasse, it intended to implement its last and final offer
effective on December 10, 2012.49
It is undisputed that the Union never passed a proposal that
accepted less than five HSS working a 24/7 shift schedule and
Respondent never passed a proposal that accepted more than
two HSC working an eight hour day schedule and three other
HSS transitioning to Operations.
E. Unilaterally Implemented Final Proposal
On December 10, 2012, Respondent unilaterally implement-
ed its November 18, 2012 final offer.50 Senes and Garcia, the
two most senior HSSs, were reassigned as Health and Safety
Coordinators. They performed duties set forth in General Coun-
sel’s Exhibit 40.51 As HSCs, they no longer served as Incident
Commander/Owner or performed EMT duties at the refinery.
They also worked the day shift versus a 24/7 shift schedule.
Gallizio, Lanier, and McNeil, the less senior HSSs respec-
tively, were reassigned to the Operations department. After
completing probationary training, they became entry level Op-
erators, working a 12-hour rotating shift schedule, earning the
Operator 1 rate of $23.50 per hour. As Operators, Gallizio,
Lanier, and McNeil oversaw decoking procedures, cleaned
process areas, signed maintenance work orders, locked out
equipment prior to maintenance, and wrote job orders to repair
equipment.52 Gallizio, Lanier, and McNeil also served as junior
members of the Emergency Response Team, along with 30
other operators.
As an Operator, Lanier earned approximately $20,000 less
per year versus when he was a HSS. However, as a HSS, Lanier
worked approximately 100 hours on his off days. McNeil held
the least seniority of all of the HSSs.
As an Operator, McNeil worked limited overtime in 2013
and earned approximately $26,000 less per year less versus
when he was a HSS. Because of his juniority, McNeil was
given the last choice in vacation schedules. As a result, in Oc-
tober 2013, McNeil resigned to take a job as a full-time fire-
fighter with the Diablo Canyon Nuclear Power Plant.53
F. July 2013 Discussions
On or about July 1, 2013, the parties began additional dis-
cussions concerning the HSSs. At that time, the Union pro-
posed to reduce the number of HSSs from five to two and drop
the 24/7 shift coverage requirement. However, the Union de-
manded a higher wage rate for the HSC and a retroactive wage

48 Id.
49 GC Exh. 45.
50 GC Exh. 40.
51 Id.
52 Decoking is the process of disposing of crude oil by turning it into
a granulated type product so it can be safely transported off site.
53 There was no claim in counsel for the General Counsel’s or coun-
sel for the Charging Party’s brief that McNeil was constructively dis-
charged due to his demotion/reassignment by Respondent.
PHILLIPS 66 21
increase for the remaining three HSS who were reassigned into
Operations.54 Respondent rejected this proposal. Although the
parties continued discussions, they were unable to come to an
agreement and negotiations resulted in impasse.
G. News Media Policy
On December 10, 2012, Stumbo sent an email to all Phillips
66 employees at the Santa Maria Refinery. The email stated:
With the recent supply and demand issues in California, and
the resulting price increases, it is extremely important for all
employees and contractors to not speak to the news media
about our operations. Confidentiality is a condition of em-
ployment and I urge you to not speculate on market condi-
tions or refinery operations.
Please be aware of the following guidelines.
News Media Guidelines
If a Phillips 66 employee or on-site contractor is contacted by
a member of the news media, no information exchange is
permitted concerning Santa Maria or Rodeo Refinery opera-
tions. It is against company policy for anyone but an author-
ized company spokespersons (sic) to speak to the news media.
This is to ensure that our company's communications to the
public are aligned and consistent, and that they are factual and
meet all legal and business confidentiality requirements. All
media inquiries are to be referred to the designated site
spokesperson. Please refer all calls to Kristen Kopp. If you
have any questions, please contact your supervisor.55
III. DECISION AND ANALYSIS
A. Impermissible Threats and Threats of Reprisals
The first issue in this case is whether Respondent violated
Section 8(a)(1) of the Act when it threatened to remove certain
job duties, and cut work hours and overtime if the HSSs voted
to join the Union. Based upon the evidence, I conclude Re-
spondent violated the Act as alleged.
1. Parties’ Positions
Citing the U.S. Supreme Court’s decision in NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969), and the Board’s decisions in
Poly-America, Inc., 328 NLRB 667 (1999)(citations omitted)
and Noah’s Bay Area Bagels, LLC, 331 NLRB 118 (2000),
counsel for the General Counsel (CGC) asserts that Respond-
ent’s statements to its HSSs regarding the effects of unioniza-
tion violate Section 8(a)(1) of the Act because they were coer-
cive threats and/or promises of benefit intended to interfere
with/restrain the HSSs from exercising their Section 7 rights.
Respondent denies it violated Section 8(a)(1) and maintains
that it: (1) made lawful predictions about the potential effects of
unionization on the HSSs’ jobs; (2) made no promises of bene-
fit but conveyed its legal obligations to bargain with the Union;
and (3) made no threats of reprisals against the HSSs for join-

54 R. Exh. 45.
55 GC Exh. 46.
ing the Union.
2. Prevailing Legal Authority
Under NLRB v. Gissel Packing Co., an employer’s predic-
tions of adverse consequences as a result of unionization are
either coercive threats in violation of Section 8(a)(1) or lawful
expressions about unionization, which are protected by Section
8(c) of the Act. To determine the difference, the proper inquiry
is whether, based upon the totality of the circumstances, the
employer’s prediction is “carefully phrased on the basis of ob-
jective fact to convey the employer’s belief as to demonstrably
probable consequences beyond his control.”56 If so, the state-
ment is considered a reasonable prediction of adverse conse-
quences resulting from unionization and is lawful free speech
under Section 8(c) and the First Amendment.
On the other hand, if there is any implication that the em-
ployer will take action solely on its own initiative for reasons
unrelated to economic necessities and known only to him, the
statement is no longer a reasonable prediction but a threat of
retaliation. These types of statements are not protected by Sec-
tion 8(c) or the First Amendment, rather they are unlawful co-
ercive threats that violate Section 8(a)(1).57 When analyzing
alleged unlawful statements, the Board “view[s] employer
statements from the standpoint of employees over who the em-
ployer has a measure of economic power,”58 because it “take[s]
into account the economic dependence of the employees on
their employers, and the necessary tendency for the [employee],
because of that relationship, to pick up intended implications of
the [employer] that might be more readily dismissed by a more
disinterested ear.”59 Thus, for example, where an employer
predicts that unionization will result in a loss of benefits when
there “is no lawful explanation based on objective facts as to
why [the] loss of a benefit would occur,” the employer’s state-
ment violates the Act.60 In short, the trier of fact must assess,
under the totality of the circumstances, whether the employer
conveyed what “could” occur if employees unionized (which
would be lawful predictions) versus what “would” occur
(which would be unlawful threats).
3. Analysis
First, I must determine whether Respondent’s statements to
the HSSs on January 16 and 19, 2012, were impermissible
threats. With respect to the January 16, 2012 statements, the
CGC alleges that Respondent’s remarks to the HSSs that union-
ization would result in the loss of/changes to their duties, work
hours and schedules constitute unlawful threats, because there
was no lawful reason based on any objective fact to explain
why these changes would occur. I agree.
Specifically, regarding Wilson’s statements, as I previously
found in the statement of facts, the credited testimony shows
that Wilson told the HSSs that management believed certain of

56 NLRB v. Gissell Packing Co., 395 U.S.575, 589, 618 (1969).
57 Id.
58 Purple Communications, Inc., 361 NLRB No. 43, slip op. at 3
(2014) (citing Mesker Door, 357 NLRB No. 59, slip op. at 5 (2011).
59 Id. (quoting NLRB v. Gissel Packing Co., 395 U.S at 617).
60 Poly-America, Inc., 328 NLRB 667, 669 (1999), affd. in rele-
vant part Poly-America, Inc. v. NLRB, 260 F.3d 465 (5th Cir. 2001); see
also Noah's Bay Area Bagels, LLC, 331 NLRB 188, 188 (2000).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
their job duties were supervisory which would (not could) be
removed if they joined the Union. To that end, I credited
Senes’, Garcia’s and Gallizio’s testimony regarding what Wil-
son told them during the meeting, because they corroborated
each other’s testimony and they spoke in specific and concrete
terms versus broad generalities. Relying on a typewritten doc-
ument by McNeil, Respondent contends that McNeil’s state-
ment confirmed that Wilson told the HSSs that their duties
might change if they voted for the Union.61 However, other
record evidence does not bear out Respondent’s version of the
meeting. In fact, further down in McNeil’s statement, McNeil
wrote that Wilson told the HSSs that they “would no longer be
the IC [Incident Commander],” “would lose our ‘Incident Own-
er’ status for Impacts,” “would lose many of our job require-
ments because they were ‘management’ jobs that the company
could not ‘lose’ to the Union,” “would lose flexibility in sched-
uling vacations . . . ,” and “once [the HSSs] chose to vote Un-
ion we would never be able to change back.”62 Even though
McNeil indicated that Wilson’s (and Seidel’s) remarks were
“artfully worded,” McNeil’s overall impression of the meeting
was that: (1) Respondent was trying to “scare [the HSSs] out of
going Union,” and (2) the meeting was “not ‘informational’ . . .
as Wilson stated . . . but one . . . . laced with veiled threats dis-
guised as concern for our ‘well being.’”63
Moreover, it is important to consider the circumstances sur-
rounding when Wilson’s (and Seidel’s) statements were made –
i.e., in a small office, where the discussion concerned the HSSs
livelihood, four days before a vote to join the Union. Thus,
viewing Respondent’s statements “from the standpoint of em-
ployees over whom the employer has a measure of economic
power,” and the “necessary tendency of the former, because of
that relationship, to pick up intended implications of the latter
that might be more readily dismissed by a more disinterested
ear,”64 I find it reasonable to conclude that Wilson’s state-
ments, made just four days before the election, impermissibly
implied that the HSSs’ job duties, schedules, and work condi-
tions would change if they voted in favor of the Union.
The CGC also avers that Wilson’s statements concerning the
removal of the HSSs’ alleged supervisory duties were imper-
missibly coercive as her statements were not based on objective
facts beyond Respondent’s control, but rather, on Respondent’s
own (self-serving) opinion of the supervisory nature of those
duties. Again, I agree.
Respondent argues that Wilson made valid predictions about
the potential removal of certain of the HSSs’ supervisory du-
ties, because those predictions were based upon and “flowed
from the objective findings in the ARD’s determination that the
HSSs were not supervisors.”65 However, the undisputed evi-
dence shows that Respondent, at best, misinterpreted the
ARD’s findings and drew on its own inaccurate conclusions
when it made its predictions. Specifically, the ARD determined

61 R. Exh. 9.
62 R. Exh. 9.
63 Id.
64 Gissel, 395 U.S. at 617; see also Mesker Door, 357 NLRB No. 59,
slip op at 5 (2011).
65 R. Br. at 24–25.
that the alleged supervisory duties on which Respondent relied
– i.e., the HSSs role as Incident Commander/Incident Owner
and during disciplinary meetings – were not supervisory in
nature. Yet, despite these findings, Respondent determined, on
its own, and subsequently insisted that the HSSs role as Inci-
dent Commander/Incident Owner and their role during discipli-
nary meetings were supervisory. In fact, at the the hearing,
Wilson admitted she was unfamiliar with any of the specific
findings made by the ARD, and that she had not even read the
decision prior to the January 16 meeting.
Moreover, while Wilson believed that HSSs served as super-
visors during disciplinary meetings, she could not name one
occasion where the HSSs initiated discipline or played any type
of supervisory role during those meetings. Incredibly, the HSSs
role as supervisors during disciplinary meetings is not con-
tained anywhere in their position description. Finally, Wilson
admitted that Respondent maintains the exclusive right to as-
sign/reassign duties upon which Respondent was not required
to bargain. Therefore, the reassignment or removal of the al-
leged “supervisory” duties was within Respondent’s complete
control. In sum, the record does not provide any support for
Wilson’s predictions that Respondent may/might/would have to
remove certain “supervisory” duties if the HSSs unionized.
Rather, Respondent’s prediction is unsupported by objective
evidence, and accordingly, not protected as a lawful expression
of opinion under Section 8(c).66
Regarding Seidel’s comments that Respondent may have to
adjust/cut the HSSs’ shifts, schedules workhours and/or over-
time if they joined the Union, the CGC claims that these state-
ments were coercive threats based on the Board’s decision in
Hertz Corp., 316 NLRB 672 (1995). In that case, the company
held a captive audience meeting with employees immediately
prior to the union election. During the meeting, management
told employees that if the union was voted in, represented em-
ployees may not have their 401K plan benefits, but all pay and
benefits were negotiable, and the company would bargain with
the union in good faith.67 However, immediately after these
statements, management also told employees that they “should
be aware that out of 197 or so contracts that . . .Hertz . . .has
presently [negotiated with the union], none of those contracts
have a 401(K) plan.”68 Hertz argued that its statements regard-
ing the 401(K) plan were lawful since employees were told
that: (1) the 401(K) plan was a negotiable item, (2) employees
may gain, lose or get the same in pay and benefits as a result of
negotiations, (3) Hertz would bargain with the union in good
faith, (4) no changes had been made in employees benefits
during the negotiations, and (5) employees do not automatically
lose a benefit if they vote for the union.69
However, the Board adopted the judge’s findings that the
company’s statements were unlawful. The judge noted that,
given the totality of the company’s statements about the 401(K)
plan which was immediately followed by the statement that no

66 See UPS Supply Chain Solutions, Inc., 357 NLRB No. 106, slip op
at 4 (2011).
67 Hertz Corp., 316 NLRB at 695–696.
68 Id. at 696.
69 Id. at 695.
PHILLIPS 66 23
union had ever been successful in negotiating a 401(K) plan for
its represented employees, employees “could reasonably and
strongly assume that if they voted for the union, either coverage
of employees would automatically be withdrawn . . . or that
negotiations for continued coverage under the plan would be
futile and unsuccessful.”70 In short, the Board adopted the
judge’s findings that the employer violated the Act if it made
statements that gave the impression that benefits will automati-
cally be lost as soon as employees become represented by a
union.71
Like in Hertz Corp., Respondent argues that the HSSs were
told that their schedules and hours “might” change but their
schedules would have to be bargained with the Union. Howev-
er, also like Hertz Corp., Seidel’s statement about reduced
schedules, hours, and overtime was immediately preceded by
Wilson’s comment that: (1) management felt that certain as-
pects of the HSSs jobs were supervisory (despite that the ARD
determined they were not) which would be taken away from
them if they joined the Union, and (2) with those supervisory
duties removed, Respondent may not need to have the HSSs on
a 24/7 shift. I find that these statements taken together gave the
impression that the HSSs shifts, schedules, and hours would be
lost if they voted for the Union.
Respondent also relies on the Board’s decision in Wild Oats
Markets, Inc., 344 NLRB 717 (2005), to support its position
that predicting potential loss of benefits in collective bargaining
is lawful if it is a factually accurate observation of a potentially
negative outcome of unionization.72 However, in Wild Oats
Markets, Inc., the Board found that the company’s flyer to em-
ployees which stated, “in collective bargaining you could lose
what you have now” considered by itself, constituted a factually
accurate observation regarding a possible negative outcome of
collective bargaining.73 Contrary to the situation in Wild Oats,
Seidel’s statement was not made in a vacuum; rather, it was
preceded by Wilson’s comment that certain of the HSSs’ du-
ties, which Respondent believed were supervisory, would be
removed if they joined the Union. Thus, while Seidel’s state-
ment, by itself, may have been a lawful prediction, his state-
ment combined with Wilson’s remarks together with the the
timing of both statements (made four days before the vote),
reasonably inferred an impermissibly coercive threat.
Finally, I am further persuaded as to the coercive nature of
Seidel’s remarks given that the Board previously found that
Respondent unlawfully threatened a lead operator at its
Sweeney refinery when Respondent told him it would make the
lead Operator a salaried position, which would cut his and his
coworker’s pay, if employees voted for the Union. 74Accord-
ingly, I find that Respondent violated Section 8(a)(1) of the Act
when it threatened to remove certain “supervisory” duties from
the HSSs and adjust/cut their schedules, work hours and over-
time if they voted for the union.

70 Id. at 696.
71 Id., see also Niagara Wires, 240 NRB 1326 (1979) (citations omit-
ted).
72 344 NLRB 717 (2005).
73 Id. (emphasis added).
74 See Phillips 66 Sweeny Refinery, 360 NLRB No. 26, slip op. at 1
(2014).
I also conclude that Wilson’s “mending fences” remark
made during the January 19 Stumbo meeting was unlawful. On
this point, Respondent argues that Wilson never told the HSSs
that, if they voted against the Union, Respondent would work
to “mend fences” between the HSSs and management. Howev-
er, the credited testimony shows, and I previously found other-
wise. Alternatively, Respondent avers that, even if Wilson
made the remark, her statement was not a promise of any bene-
fit but rather a statement conveying Respondent’s legal obliga-
tion to refrain from discussing mandatory subjects of bargain-
ing directly with the HSSs. I disagree.
In Purple Communications, Inc., the Board addressed
whether comments made by the company’s CEO to employees
constituted an impermissible pre-election implied promise of
benefit.75 In that case, the company CEO held several captive
audience meetings with employees where he discussed several
issues, including the company’s increased productivity stand-
ards which took effect immediately prior to the union election.
However, during the speech, the CEO also told employees that
the company “may have gone too far [with the increased pro-
duction standards]” and that the company “[was] looking at the
matter” and “needed to recalibrate” the standards. While the
judge found the comments lawful generalized expressions of
campaign propoganda, the Board reversed finding that the
statements were an “implied promise of improvement,” because
the CEO’s comments were “directly linked to the recently in-
creased productivity standards” which served as one of the
central campaign issues for the Union.76
Like the Board in Purple Communications, I decline to find
that Wilson’s “mending fences” comment was a generalized
expression of Respondent’s duty under the Act. Rather, her
statement was was directly linked to the tumultuous relation-
ship between the HSSs and management—one of the central
reasons why the HSSs considered joining the Union in the first
place. Moreover, Wilson’s “mending fences” remark was
made immediately after she told the HSSs that management
preferred they vote “no” for the Union, which lends additional
coercive meaning to her statement. Thus, the context in which
both statements were made raises a reasonable inference that
Wilson was offering something of benefit (mending fences
between the parties) in exchange for the HSSs voting against
the Union.
While Wilson made no express promise to take any specific
action to improve relations between management and the HSSs,
again viewing Wilson’s statement “from the standpoint of em-
ployees over whom the employer has a measure of economic
power,” and the “necessary tendency of the former, because of
that relationship, to pick up intended implications of the latter
that might be more readily dismissed by a more disinterested
ear,” I find Wilson’s “mending fences” remark, made just one
day before the election, strongly implied that improved rela-
tions might be contemplated if the HSSs voted against the Un-
ion.

75 See Purple Communications, Inc., 361 NLRB No. 43, slip op. at
3–4 (2014).
76 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
Citing several Federal Court of Appeals decisions,77 Re-
spondent contends that, even if the HSSs mistook the “mending
fences” comment as a threat, the statement was repudiated by
Gislason when he clarified Wilson’s statement.78 However, the
key element in the cases cited by Respondent was the fact that
the employer did not follow through with the alleged threaten-
ing conduct. Here, however, Respondent followed through on
the alleged threats – to wit, after the HSSs’ voted for the Union,
Respondent did not “mend fences” with the HSSs, rather it
removed certain duties from them, changed their schedules and
work hours and ultimately, reassigned them to other lower pay-
ing positions. Thus, I do not find that Respondent repudiated
the alleged threats, it implemented them. Accordingly, I con-
clude Respondent violated Section 8(a)(1) of the Act by its
implied promise of benefit (to “mend fences” with the HSSs) if
they voted against the Union.
Finally, with regard to the January 19, 2012 Gislason meet-
ing, I find sufficient evidence to conclude Respondent made the
threats of reprisals against the HSSs at this meeting. Specifical-
ly, I find that Gislason met with the HSSs after the January 19
Stumbo meeting and told them that management intended to
follow through on their threats and Respondent intended to
make their decision to join the Uion as undesirable as possible
to prevent other HSSs at other facilities from unionizing.
Respondent argues that the HSSs are less than fully credible
regarding the Gislason meeting. In this regard, Respondent
asserts that the HSSs’ claims regarding Gislason threats are
suspicious because the HSSs waited six months (until July
2012) after the threats were allegedly made (January 19, 2012)
before raising the issue with Respondent. Moreover, Respond-
ent notes that the HSSs signed a handwritten letter dated Janu-
ary 19, 2012 but none of them could precisely recall what hap-
pened to the letter, with whom in the Union did they speak
about the threats, or the date they gave the letter to the Union.
Because of this, Respondent infers that the Gislason
threats/meeting never occurred; rather the HSSs’ manufactured
the Gislason threats/meeting to support a timely unfair labor
practice charge (ULP) in this case.
While Respondent’s argument is certainly interesting, it of-
fered no evidence to support its assertions. As such, I agree
with the CGC that “Respondent’s theory is just that, a theory,
highly speculative and unsubstantiated.”79 In fact, I could posit
equally speculative and unsubstantiated theories for the delay in
raising the Gislason threats – i.e., that the Union was unaware
of the alleged threats until immediately prior to beginning ne-

77 See Cooper Tire & Rubber Co. v. NLRB, 156 Fed.Appx. 760, 767
(2005), Kinney Drugs, Inc. v. NLRB, 74 F.3d 1419, 1430 (2d Cir. 1996)
and NLRB v. Intertherm, Inc., 596 F.2d 267, 276 (8th Cir. 1979).
78 Cooper Tire, 156 Fed.Appx at 767 (employer’s statement that
would reasonably be viewed as an objectionable threat may be cured if
employer gives employees a “clear assurance” that it will behave law-
fully and will not follow through with the conduct threatened earlier);
Kinney Drugs, Inc., 74 F.3d at 1430 (conduct repudiating a threat must
be ‘timely, unambiguous, specific in nature to the coercive conduct and
free from other proscribed illegal conduct’”), NLRB v. Intertherm, 586
F.2d at 276 (explanation and retraction of unlawful threat two days
prior cured the unlawful threat).
79 GC Br. at 37.
gotiations with Respondent; or that the Union deliberately
withheld the fact that they knew about the Gislason threats to
afford them a better tactical advantage during negotiations. I
could go on ad nauseum, but the bottom line is, without addi-
tional evidence, that I am not persuaded by Respondent’s asser-
tions in this regard.
Despite the fact that I was not overly impressed with the
HSSs’ testimony regarding the specifics on reporting the Gisla-
son threats, I am persuaded by the CGC’s argument that the
Board affords current employees’ testimony enhanced reliabil-
ity when they testify while management representatives are
present.80 As the Board has long recognized, testifying against
an employee’s pecuniary interest is “a risk not lightly undertak-
en.”81 For that reason alone, I credit the HSSs’ version of the
Gislason meeting over the testimony of Respondent’s witness-
es. Accordingly, I conclude that Respondent violated Section
8(a)(1) of the Act when Gislason told the HSSs that Respond-
ent intended to follow through with its threats (i.e., to remove
certain “supervisory” duties from the HSSs and adjust/cut their
schedules, work hours and overtime) in order to dissuade them
and other HSSs from voting for the Union.
B. Bargained in Bad Faith
1. Parties’ Positions
Next, I turn to the question of whether Respondent failed to
bargain in good faith with the Union in violation of Section
8(a)(5) by offering discriminatory proposals which evinced no
intent to reach an agreement. Specifically, in Complaint para-
graphs 11(b) and (c), the CGC alleges that Respondent bar-
gained in bad faith by advancing proposals, where the content
of its proposals were not based upon legitimate business justifi-
cations, rather, were designed to never reach an agreement and
retaliate against the HSSs for voting for the Union. Respondent
maintains that it bargained in good faith because it formulated
and advanced proposals based upon legitimate business justifi-
cations, and when no agreement was reached, lawfully declared
a good faith impasse.
2. Prevailing Legal Authority
Section 8(a)(5) and 8(d) of the Act defines the obligation of
employers to bargain collectively as the “obligation . . . to meet
at reasonable times and confer in good faith with respect to
wages, hours, and other terms and conditions of employment.”
The obligation to bargain in good faith “does not compel either
party to agree to a proposal or require the making of a conces-
sion.”82 In fact, a party is “not required to make concessions or
to yield any position fairly maintained,” but a party who enters
into negotiations with a predetermined resolve not to budge
from an initial position demonstrates “an attitude inconsistent

80 See Gold Standard Enterprises, 234 NLRB 618, 619 (1978) (“the
testimony of current employees which contradicts statements of their
supervisors is likely to be particularly reliable because these witnesses
are testifying adversely to their pecuniary interest.”)
81 See Comcast Cablevision, 313 NLRB 220, 224 (1993) (and
cases cited therein).
82 See H.K. Porter Co. v. NLRB, 397 U.S. 99, 106
(1970)(quoting NLRB v. American Insurance. Co., 343 U.S. 395, 404
(1952)).
PHILLIPS 66 25
with good-faith bargaining.”83 Thus, a sincere effort to reach
common ground is the essence of good-faith bargaining.84
To determine whether a party, in this case, the employer,
bargained in good faith, the trier of fact must examine the total-
ity of the circumstances, including, at times, the substantive
terms of the employer’s proposals, because “[s]ometimes, espe-
cially if the parties are sophisticated, the only indicia of bad
faith may be the proposals advanced and adhered to.”85 In as-
sessing the employer’s proposals, the trier of fact must not “sit
in judgment upon the substantive terms of collective bargaining
agreements,”86 however “[r]igid adherence to disadvantageous
proposals may provide a basis for inferring bad faith.”87 Over-
all, the trier of fact must consider the context of the employer’s
total conduct, “both at and away from the bargaining table.
Relevant factors include: unreasonable bargaining demands,
delaying tactics, efforts to bypass the bargaining representative,
failure to provide relevant information, and unlawful conduct
away from the bargaining table,”88 to decide “‘whether the
employer is engaging in hard but lawful bargaining . . . or is
unlawfully endeavoring to frustrate the possibility of arriving at
any agreement.’”89
3. Analysis
The CGC’s argument that Respondent engaged in bad faith
negotiations is rather complicated. From what I gathered from
the CGC’s theory, the CGC avers that Respondent’s bargaining
proposals consistently sought to reassign three of its HSSs to
lower paying positions in Operations and two other HSSs to a
newly created HSC bargaining unit position. Respondent’s
business justification for proffering these proposals centered on
the fact that once the ARD determined that the HSSs were not
supervisors, Respondent was required to reassign/remove cer-
tain duties (i.e., Incident Commander/Owner and EMT duties)
that were inherently supervisory. Once those duties were re-
moved, the HSSs’ remaining duties no longer justified having
all five HSSs work a 24/7 shift schedule. So, Respondent creat-
ed and reassigned two of its HSSs to the new bargaining unit
HSC position and transferred the remaining three HSSs to Op-
erations.

83 See Gen. Elec. Co., 150 NLRB 192, 196 (1964), enfd. 418
F.2d 7736 (2d Cir. 1969), discussed in Am. Meat Packing Co., 301
NLRB 835 (1991).
84 NLRB v. Montgomery Ward & Co., 133 F.2d 676, 686 (9th
Cir.1943).
85 NLRB v. Wright Motors, Inc., 603 F.2d 604, 609 (7th Cir. 1979).
86 NLRB v. Am. National Insurance Co., 343 U.S. 395, 404 (1952).
87 NLRB v. Blevins Popcorn Co., 659 F.2d 1173, 1187, 1188
(D.C.Cir.1981) (emphasis added). See generally 29 U.S.C. § 158(d).
See also Borden, Inc. v. NLRB, 19 F.3d 502, 512 (10th Cir. 1994) (not-
ing also that “rigid adherence to disadvantageous proposals may pro-
vide a basis for inferring bad faith”).
88 See Hardesty Co., 336 NLRB No 18, slip op. at 3 (2001) (cit-
ing Atlanta Hilton & Tower, 271 NLRB 1600 (1974); NLRB v. Stani-
slaus Implement & Hardware Co., 226 F.2d 377 (9th Cir. 1955); and
NLRB v. Arkansas Rice Growers Assn., 400 F.2d 565, 572 (8th Cir.
1968).
89 Public. Service. Co. of Oklahoma., 334 NLRB 487 (2001) (quot-
ing Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984)), enfd. 318
F.3d 1173 (10th Cir. 2003).
However, the CGC posits that Respondent intentionally mis-
interpreted the ARD’s Decision to advance its own nefarious
motives – to make good on its prior threats of reprisals for the
HSSs unionizing. As such, the CGC claims that Respondent’s
reasons for advancing its bargaining proposals were not based
upon legitimate business justifications; rather served as a pre-
text to cover up its true retaliatory motive (to punish the HSSs
for unionizing and to prevent other HSSs from unionizing).
Thus, as the CGC’s theory goes, the advancement of Respond-
ent’s discriminatory proposals is, by itself, sufficient evidence
of Respondent’s bad faith intent to “frustrate the possibility of
arriving at [an] agreement.”90
After viewing the employer’s and its substantive proposals,
“both at and away from the bargaining table…[looking at] fac-
tors including, [the employer’s] unreasonable bargaining de-
mands, delaying tactics, efforts to bypass the bargaining repre-
sentative, failure to provide relevant information, and unlawful
conduct away from the bargaining table,”91 I conclude that the
totality of Respondent’s conduct evinced an intent never to
reach agreement with the Union sufficient to constitute bad
faith “surface bargaining” in violation of Section 8(a)(5).
First, I find sufficient evidence in the record to conclude that
Respondent operated with a closed mind by insisting on a pro-
posal that it knew (or should have known) was not based upon
legitimate business justifications. The evidence reveals that,
from May through November 2012, Respondent never moved
from its original proposal to reassign the HSSs into other bar-
gaining unit positions based, primarily, on its own inaccurate
interpretation of the ARD’s Decision that the HSSs (and their
duties) were not supervisory in nature. Respondent asserts that,
based upon the ARD’s Decision, it was required to remove
certain duties from the HSSs, primarily the Incident Command-
er/Owner and EMT functions, because they were “inherently
supervisory in nature.” Unfortunately, the evidence shows the
exact opposite.
Rather, the ARD concluded that the HSSs were not supervi-
sors based upon the Incident Commander/Owner and EMT
duties.92 In fact, Respondent’s own written policies undermine
its claim that the HSSs are supervisors when serving as Incident
Commander/Owner. Specifically, the ARD found, and Re-
spondent’s policies dictate that the HSSs assume the Incident
Command role only during the initial stages of an emergency;
thereafter, an Advance Response Incident Commander (i.e., a
supervisor) takes control of the emergency.93 Additionally, the
evidence shows that, even while serving as the Incident Owner,
the HSSs are supervised by a “Responsible Supervisor” who
works closely with the HSSs to document the incident and
oversee the investigation.94
Similarly, while Respondent avers that, without the Incident
Command/Owner functions, Respondent had no business need
to maintain five HSSs on a rotating 24/7 schedule, the evi-
dence, in fact, negates Respondent’s business necessity for

90 GC Br. at 49–50.
91 See Hardesty Co., supra at n.165.
92 GC Exh 13.
93 GC Exh. 57.
94 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
removing these duties from the HSSs. Moreover, despite Re-
spondent’s belief that HSSs served as supervisors during disci-
plinary meetings, record evidence failed to show even one oc-
casion where the HSSs served in that capacity and that role was
not listed in their position description.
Respondent’s asserted business reason for contracting out the
HSSs’ EMT duties also does not withstand scrutiny. Here,
Respondent claims that the EMT duties were not a necessary
function for the HSSs, and as such, it was free to contract those
duties to a third party. However, Respondent’s own literature
indicates that the HSSs were required to have an “EMT Certi-
fication or the ability to acquire certification within 30 days.”95
While Respondent claims that other employees were also certi-
fied to perform EMT duties, Respondent failed to sufficiently
explain why it was required to reassign those duties in light of
the ARD’s determination.
Respondent further argued that it maintained the exclusive
right to assign/reassign duties upon which it was not required to
bargain. However, the parties’ collective bargaining agreement
(CBA) excluded the HSSs from that management prerogative.
Even assuming the HSSs were technically bargaining unit em-
ployees, and as such, Respondent was privileged to reassign the
EMT duties, Respondent admitted at the hearing that the EMT
duties were not inherently supervisory. Thus, again, Respond-
ent failed to offer an explanation as to why it was required to
remove the EMT duties from the HSSs when the evidence
shows it had no business need for doing so.
The fact remains that Respondent insisted upon its proposals
and business rationale despite the ARD’s determination which
nullified its business justification. Even when the Union chal-
lenged Respondent’s business justification with the ARD’s
rationale, and presented it with a copy of the ARD’s Decision
during negotiations, Respondent never reviewed it. In fact,
Respondent’s witnesses admitted that they never actually read
the ARD’s rationale that certain of the HSSs duties were not
inherently supervisory.
Furthermore, because Respondent maintained that its HSSs
perform duties that are inherently supervisory, when the ARD
previously determined they did not, I find that Respondent is
essentially unlawfully relitigating issues previously decided by
the Board in the underlying representation hearing.96 Accord-
ingly, I find that Respondent’s unreasonable bargaining de-
mands, even in the face of the ARD’s determinations to the
contrary, sufficient to prove it bargained in bad faith.
Second, I find that Respondent operated with a closed mind
by advancing proposals that, I conclude, were merely exten-
sions of its pre-election threats against the HSSs. Respondent
notes that the Regional Director for Region 31 previously dis-
missed a prior ULP charge, finding that Respondent bargained
in good faith with the Union because it provided a “good faith
explanation in support of its proposal . . . an opportunity to
respond to the proposal . . . . and a legitimate business justifica-

95 GC Exh. 2.
96 See Gross School Bus Service, 356 NLRB No. 81 (2011), citing
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941) (cannot
relitigate representation cases in unfair labor practice case).
tion in making its proposal.”97 However, I am not bound by this
determination.98 In fact, record evidence developed at the hear-
ing (as set forth above) reveals no legitimate business justifica-
tion for the proposals advanced by Respondent.
Moreover, although the Regional Director found no causal
link between the alleged “coercive pre-election statements” and
the “lawful, hard bargaining demonstrate by [Respondent],” I
disagree. Rather, I find, and the credited testimony at hearing
proves that the HSSs were threatened with specific adverse
consequences (i.e., reassigned duties, cut work
hours/schedules/overtime) if they unionized; they were again
forewarned that those specific reprisals (i.e., reassigned duties,
cut work hours/schedules/overtime) would occur if they union-
ized, and as soon as the HSSs unionized, Respondent advanced
proposals that mirrored those specific adverse consequences
(i.e., reassigned duties, cut work hours/schedules/overtime). In
addition, the record clearly demonstrates Respondent’s strong
preference that the HSSs not unionize and the HSSs were made
aware of that fact when the coercive threats were made. Taken
together, I believe a sufficient nexus exists to reasonably infer
that Respondent’s proposals served as extensions of their pre-
election threats.
The CGC argues that Respondent was motivated by its anti-
union animus (i.e., retaliation for the HSSs having unionized)
in advancing its proposals, and that, by itself, is sufficient to
show bad faith. However, I cannot go as far as the CGC on this
point. The record certainly demonstrates Respondent’s anti-
union preference as evidenced by Wilson’s statements to the
HSSs to that effect. In addition, Respondent’s situation with the
Alliance HSSs, where Respondent reassigned those HSSs into
other lower paying bargaining unit positions after they union-
ized, raises strong suspicions in my mind regarding Respond-
ent’s overall anti-union sentiment.
Yet, I am nevertheless reluctant to find, absent Board prece-
dent, that Respondent’s anti-union animus, standing alone, is
sufficient to infer bad faith. Rather, I do find that, given the
nexus between the content of the threats and the content of
Respondent’s proposals, sufficient evidence exists to conclude
that Respondent’s proposals served as extensions of their pre-
election threats which, along with other evidence described in
this decision, evinces an intent to bargain in bad faith.
Respondent’s conduct immediately prior to negotiations fails
to persuade me that it acted in good faith. Here, Respondent
claims that, prior to the start of official negotiations, it: (1) pro-
vided assurances to the Union that the “focus” of the new bar-
gaining unit position would remain health and safety, (2)
agreed not to lay off any of the HSSs as a result of the collec-
tive bargaining process, and (3) agreed to a specific hourly
wage rate for the new job classification. Although Respondent
is correct regarding its prenegotiation conduct, I am required to
look at the totality of Respondent’s conduct to determine

97 R. Exh. 5.
98 See Kelly’s Private Car Service, 289 NLRB 30, 39 (1998), enfd.
sub nom. 919 F.2d 839 (2d Cir. 1990) (“it is well settled that the dis-
missal of a prior charge by a Regional Director, even where the identi-
cal conduct is involved, does not constitute an adjudication on the
merits, and no res judicata effect can be given to those actions.”).
PHILLIPS 66 27
whether it harbored an intent to reach an agreement/bargain in
good faith. As set forth above, the record contains other evi-
dence of Respondent’s bad faith.
Citing the Board’s decision in In John S. Swift Co., Re-
spondent next claims it maintained an open mind during nego-
tiations because it: (1) agreed to the parties’ ground rules for
negotiations, (2) paid the HSSs who participated in the negotia-
tion sessions, (3) agreed that if any of the HSSs were ultimately
displaced, displacement would be based on seniority, (4) ap-
proved a salary increase for the HSSs even though, at the time,
they were no longer “management” employees, and (5) consid-
ered additional duties suggested by Garcia to determine if Re-
spondent could support the HSSs 24/7 shift schedule.99 How-
ever, none of the items identified by Respondent were major
subjects of bargaining which the Board considered in In John S.
Swift Co, to determine if the employer engaged in good-faith
bargaining. That fact alone distinguishes In John S. Swift Co.
from the present case.100
Lastly, while Respondent points out that it met with the Un-
ion 11 times between May and November 2012, the quantity or
length of bargaining sessions does not establish or equate with
good-faith bargaining.101
Overall, I conclude that Respondent’s “[r]igid adherence to
disadvantageous proposals” particularly when those proposals
were not based on legitimate business justifications but rather
served as extensions of Respondent’s unlawful threats, provide
sufficient basis for me to infer bad faith.102 Even when the basis
of Respondent’s business rationale proved untenable, the evi-
dence shows that Respondent insisted on proffering bargaining
proposals based on its unreasonable interpretation of the ARD’s
findings. Coupled with evidence showing that its proposals
served as extensions of its pre-election threats together with
evidence of anti-union animus, I find the record shows that
Respondent “enter[ed]into negotiations with a pre-determined
resolve not to budge from an initial position [which] demon-
strates ‘an attitude inconsistent with good-faith bargaining.’”103
Accordingly, I find the totality of Respondent’s conduct during
negotiations evinced an intent never to reach agreement with
the Union sufficient to constitute bad faith “surface bargaining”
in violation of Section 8(a)(5).
Finally, I conclude that Respondent failed to bargain in good
faith with the Union when it unlawfully declared an impasse.
An employer may declare an impasse when “good faith ne-
gotiations have exhausted the prospects of concluding an
agreement” such that further bargaining would be futile.104
Once this point is reached, an employer does not violate the Act
by making unilateral changes that are reasonably comprehend-
ed within his pre-impasse proposals.105 However, an employer

99 In John S. Swift Co., 124 NLRB 394 (1959).
100 Id.
101 NLRB v. American National Insurance Co., 343 U.S. 395, 404
(1952).
102 NLRB v. Blevins Popcorn Co., 659 F.2d at 1187–1188.
103 See Gen. Elec. Co., 150 NLRB 192, 196 (1964), enfd. 418
F.2d 7736 (2d Cir. 1969), discussed in Am. Meat Packing Co., 301
NLRB 835 (1991).
104 Taft Broadcasting Co., 163 NLRB 475, 478 (1967).
105 Id.
violates his duty to bargain if, when negotiations are sought or
are in progress, he unilaterally declares impasse and institutes
changes in existing terms and conditions of employment.106
Moreover, if unremedied unfair labor practices exist, “a lawful
impasse cannot be reached” and the employer “cannot unilater-
ally implement its last offer” in the course of bargaining lead-
ing up to the declaration of impasse.107
In Titan Tire Corp., the Board dealt with a situation almost
identical to the facts in this case. In that case, the company and
the Union held several negotiating sessions in an effort to reach
an agreement on a successor contract at the company’s Des
Moines, Iowa facility. The parties failed to reach an agreement
prior to the expiration of the contract, so the Union began a
strike. During this time, the company’s chairman held a press
conference with employees. At the conference, the chairman
told employees that the company would move its equipment
from Des Moines to Brownsville, Texas which “would be irre-
versible . . . if there was no settlement” with the Union. It was
undisputed that moving the company’s equipment would re-
duce the number of employees at the Des Moines facility from
650 to 300.
Meanwhile, after several negotiating sessions, the company
notified the Union that it submitted and, subsequently imple-
mented its last, best and final offer. The employer argued that
the parties were at a bargaining impasse and, therefore, its im-
plementation action did not violate the Act.
However, the Board, agreeing with the judge, concluded that
the company’s statements about relocating equipment and jobs
from Des Moines to Brownsville were threats in violation of
Section 8(a)(1). Moreover, because of these threats, the unrem-
edied unfair labor practices the employer committed prevented
the parties from reaching an agreement because “[the chair-
man’s] . . . threats to move equipment from, and reduce bar-
gaining unit jobs at, the Des Moines plant substantially under-
cut the Union's position at the negotiating table on an issue that
was of high priority to the bargaining unit,” i.e., restoring
jobs.108 As such, the Union was forced to bargain about restor-
ing versus protecting unit jobs, which “put additional pressure
on the bargaining committee to ‘rectify the wrong.’” Therefore,
the Board found that no good faith impasse could be reached,
and the company violated Section 8(a)(5) by unilaterally im-
plementing its final offer, because the company’s unlawful
conduct/unfair labor practices “contributed to the parties' ina-
bility to reach agreement.”109
Like in Titan Tire, Respondent threatened to cut the HSSs’
duties, work hours and schedules if they voted to join the Un-
ion. I previously found these statements were coercive pre-
election threats violative of Section 8(a)(1). However, after the
HSSs unionized, Respondent proffered proposals that mirrored
their pre-election threats. Thus, the Union was forced to bargain
over restoring versus protecting the HSSs’ jobs. As such, when

106 Id.
107 See Titan Tire Corp., 333 NLRB 1156, 1158 (2001) (lawful
impasse cannot be reached in the presence of unremedied unfair labor
practices and the employer “cannot ‘parlay an impasse resulting from
its own misconduct into a licesnse to make unilateral changes).
108 Id. at 1159.
109 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
Respondent, after several negotiating sessions, unilaterally
implemented its final proposal (that in effect implemented its
prior threats), I find that Respondent failed to bargain to a good
faith impasse because their unlawful conduct “contributed to
the parties’ inability to reach an agreement.”110
Respondent nevertheless argues that a lawfully impasse was
reached since neither party moved from their original positions
after 12 negotiation sessions over a seven-month period.111
Here, Respondent notes that the Union never moved from its
position that all five HSSs should maintain all of their duties on
a 24/7 shift schedule, and Respondent never moved from its
position to reassign two HSSs to a newly created HSC bargain-
ing unit position and transfer the remaining three HSSs into
Operations. In addition, Respondent cites to a myriad of Board
and District of Columbia Circuit cases for the proposition that a
party’s disagreement on any single key issue is sufficient to
support a lawful impasse.112 However, all of the cases cited by
Respondent are distinguishable from Respondent’s circum-
stance, because Respondent’s unlawful proposals in this case
“contributed to the parties’ inability to reach an agreement.”113
Thus, even if the Union maintained its original position, Re-
spondent’s conduct “demonstrat[ed] an unwillingness to com-
promise further,” sufficient to find that no good faith impasse
could have occurred.114 Accordingly, Respondent violated Sec-
tion 8(a)(5) when it failed to bargain in good faith with the
Union to a lawfully declared impasse.
C. Respondent Retaliated Against the HSSs by Unilaterally
Implementing its Final Offer
Next, I turn to the question of whether Respondent violated
Section 8(a)(3) of the Act when it unilaterally implemented its
final offer in the absence of a lawful impasse. In so doing, Re-
spondent reassigned Senes and Garcia to lower paying HSC
bargaining unit positions and transferred Gallizio, Lanier, and
McNeil into lower paying Operator 1 positions. Based upon the
evidence, I find the violations alleged.
1. Parties’ Positions
The CGC argues that Respondent violated Section 8(a)(3) of
the Act by implementing its final proposal containing adverse
terms and conditions of employment in retaliation for the HSSs
unionizing. Respondent counters by arguing it never discrimi-
nated against the HSSs based upon their protected concerted
activity (i.e., unionizing); rather it simply implemented its last,
best and final offer, based on legitimate business need, after
lawfully declaring impasse.

110 Titan Tire, 333 NLRB 1156 at 1159.
111 While Respondent claims the parties bargained over an 11-month
period, the parties essentially bargained over a seven month period
from May through November 2012.
112 See CalMat, 331 NLRB 1084, 1098 (2000), Erie Brush Mfg
Corp. v. NLRB, 700 F.3d 17, 21–23 (D.C. Cir. 2012) (impasse demon-
strated based on lack of agreement over two issues regarding union
security and arbitration), see also R. Br. at 37–38.
113 See Titan Tire Corp., supra at n.189.
114 See Tru-Serve Corp. v. NLRB, 254 F.3d 1105, 1117 (D.C. Cir.
2001), American Federation of Television and Radio Artists v. NLRB,
395 F.2d 622, 627 (D.C. Cir. 1968).
2. Prevailing Legal Authority
An employer violates Section 8(a)(3) of the Act by imple-
menting adverse terms and conditions of employment in retalia-
tion for its employees exercising their Section 7 rights.115 In
order to establish discriminatory retaliation under Section
8(a)(3), the General Counsel must show that the HSSs’ protect-
ed activity (unionizing) was a substantial or motivating factor
for the adverse action taken by Respondent. Respondent, then,
must show that it would have taken the same action even in the
absence of the HSSs’ protected activity.116 Although the Gen-
eral Counsel carries the ultimate burden to prove that the em-
ployer’s anti-union animus was a “substantial or motivating
factor” in Respondent’s decision to implement the adverse
action, the presence of prior unfair labor practices committed
by the employer,117 statements by management officials evinc-
ing a discriminatory intent,118 and findings that an employer's
proffered reasons for the disparate terms are a pretext119 are
factors which demonstrate the employer’s anti-union motive.
3. Analysis
In this case, I find sufficient evidence that Respondent reas-
signed the HSSs to lower paying bargaining unit positions in
response to their protected concerted activity. For Respond-
ent’s showing, it maintains it unilaterally implemented its final
proposal after a good faith impasse in negotiations occurred
between Respondent and the Union. However, I have previous-
ly found Respondent unlawfully declared impasse based upon
bad faith negotiations.120 Respondent further maintains that it
implemented its final offer based upon its legitimate business
rationale for the proposals it advanced during negotiations.
However, again, I have previously rejected this argument.
Respondent points to Wilson’s, Gislason’s, and Stumbo’s
testimony where they deny that the proposals advanced were
motivated in any way by anti-union sentiment. However, I have
previously found their testimony incredible on this point. In
fact, Wilson admitted that she told the HSSs that “manage-
ment” preferred that they vote against the Union, and I credit
the HSSs’ testimony that Gislason told them that “manage-
ment” intended to implement its pre-election threats and make
their vote as undesirable as possible to discourage them from
unionizing. In addition, I find credible evidence of Wilson’s
anti-union animus when she promised that management would
“mend fences” with the HSSs if they voted against the Union.

115 See Williamette Industries, 341 NLRB 560, 562–563
(2004)(finding 8(a)(3) violation where employer changed employee
shift schedules and reduced overtime in retaliation for employees elect-
ing union).
116 See Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982).
117 Williamette Industries, supra at n.189.
118 See Peabody Coal Co., 265 NLRB 93, 99–100(1982)( 8(a)(3) vi-
olation exists where employer with history of 8(a)(1) conduct told
employees that new benefits were withheld because they were “trying
to get into the union”), enfd in relevant part 725 F.2d 357, 366 (6th Cir.
1984).
119 See Phelps Dodge Mining Co., 308 NLRB 985, 996–997 (1982)
(citing Shattuck Denn Mining Co. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966)).
120 See Titan Tire Corp., supra at n.189.
PHILLIPS 66 29
Also contrary to Respondent’s arguments, I find ample evi-
dence in the record to support that Respondent’s proposals were
motivated by anti-union animus. First, as discussed in detail
earlier in this decision, Respondent's proposals throughout bar-
gaining mirrored its pre-election threats to eliminate job func-
tions, reduce shift work and overtime, and reassign their EMT
duties if the HSSs unionized. Moreover, the HSSs were warned
that if they voted for the Union, not only would Respondent
make their decision as undesirable as possible but it threatened
to remove certain of their duties, change their schedules and cut
their work hours if they voted for the Union. In fact, that is
exactly what happened after the HSSs unionized.
Similarly, Respondent essentially admitted that the unioniza-
tion of the HSSs was the sole reason for advancing its bargain-
ing proposals. Specifically, in its October 26, 2012 letter to the
Union, Respondent told the Union that the changes Respondent
sought to make to the HSSs’ employment terms was the “legit-
imate and logical consequences” of their choice to join the
Union.121 In other words, the necessity to reassign them to
bargaining unit positions would not have occurred but for their
vote to join the Union. Although Respondent may have meant
that it was implementing its final proposal since the parties
could not agree on the employment terms now that the HSSs
chose to unionize and were bargaining unit employees, this fact
was already known to the parties at the time. As such, I query
the need to insert the language in the letter in the first place.
Rather, because I have previously found Respondent’s business
rationale for its proposals unfounded, Respondent’s letter is
indicative of its antipathy against the HSSs for unionizing.
Respondent asserts that it held no union antipathy in advanc-
ing its proposals regarding the Santa Maria HSSs because it is
accustomed to working with the Union at its other larger, Cali-
fornia refineries. According to Respondent, it could not have
held any anti-union animus against the five Santa Maria HSSs
for unionizing because including them into the bargaining unit,
when it has over 3,000 unionized employees, would not warrant
a “full-scale campaign to ‘punish’ and ‘make an example’ of
the HSSs. While Respondent’s facilities nationwide employ
over 3,000 unionized employees, the credited testimony reveals
that Respondent wanted to prevent the HSSs, both at Santa
Maria and other refineries, from unionizing. In fact, the evi-
dence reveals that, after the HSSs at the Alliance refinery un-
ionized, their duties were ressigned, schedules cut, and ulti-
mately, they were transferred into other bargaining unit posi-
tions.
Moreover, the fact that Respondent held a long standing rela-
tionship working with the Union fails to negate that Respondent
resisted the HSSs’ effort to unionize. Finally, as discussed
above in Section B, I find that Respondent’s rationale for its
business justification in advancing its proposals was pretextual
as it was not based on a legitimate business need.
Therefore, based on the foregoing, I find sufficient evidence
to conclude that Respondent’s anti-union animus toward the
HSSs unionizing was the motivating factor in its decision to
insist on and implement its final proposal. In so doing, Re-
spondent violated Section 8(a)(3).

121 GC Exh. 56.
D. News Media Guidelines
Finally, I turn to the question of whether Respondent violat-
ed Section 8(a)(1) of the Act by maintaining and enforcing its
news media policy.
1. Parties’ Positions
Citing the Board’s decision in Crowne Plaza Hotel, 352
NLRB 382 (2008), the CGC argues that Respondent’s news
media policy violates Section 8(a)(1) of the Act because it
could reasonably be interpreted as prohibiting employees in
exercising their Section 7 rights. Respondent maintains that the
policy: (1) does not expressly prohibit union activity; (2) cannot
reasonably be interpreted to prohibit employees from discuss-
ing their terms or working conditions, and/or (3) serves clear
legitimate business purposes.
2. Prevailing Legal Authority
In Double Eagle Hotel & Casino, 341 NLRB 112, 115 n. 14
(2004), the Board noted that the ability to discuss terms and
conditions of employment with fellow employees is the most
basic of Section 7 rights. Thus, it is well settled that employees
have a protected right to discuss and to distribute information
regarding wages, hours, and other terms and conditions of em-
ployment.122 Because of these inherent protections, the Board
has scrutinized employer work rules that restrict employees’
Section 7 rights.
The Board set out a framework for evaluating whether an
employer’s work rule, such as Respondent’s news media poli-
cy, violates the Act. First, the rule must be examined to deter-
mine whether it explicitly restricts Section 7 activity. If it does,
the rule is unlawful.123 If the rule does not explicitly restrict
Section 7 activity, the rule must be evaluated to determine
whether: (1) employees would reasonably construe the lan-
guage in the rule to prohibit Section 7 activity; (2) the rule was
promulgated in response to union activity; or (3) the rule has
been applied to restrict the exercise of Section 7 rights. If any
of these circumstances apply, the rule infringes on employees’
rights under the Act.124
3. Analysis.
Respondent’s news media guideline states that, if employees
are contacted by the media, “no information exchange is per-
mitted concerning Santa Maria or Rodeo Refinery operations.”
Employees are informed that it is “against company policy for
anyone but an authorized company spokespersons (sic) to speak
to the news media.” The CGC argues that this language violates
the Act because, absent clarification, employees could reasona-
bly construe these guidelines to prohibit them from discussing
labor disputes, wages, or other terms and conditions of their
employment. I agree.
In Crowne Plaza Hotel, 352 NLRB 382 (2008), the Board
dealt with language in an employer’s news media policy similar

122 Mobile Exploration & Producing U.S., Inc., 323 NLRB 1064,
1068 (1997), enfd. 156 F.3d 182 (5th Cir. 1998).
123 Lafayette Park Hotel, 326 NLRB 824, 828 (1998), enfd. 203 F.3d
52 (D.C. Cir. 1999), and Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004).
124 Lutheran Heritage, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
to that found in this case. In Crowne Plaza Hotel, the compa-
ny’s news media rule prohibited employees other than the Gen-
eral Manager or a designated representative from discussing
“any incident that generates significant public interest or press
inquiries."125 The employer argued that it maintained this poli-
cy to impress upon employees that only the General Manager
may speak on its behalf and give the company’s “official com-
ment” regarding media inquires.
In finding the policy unlawful, however, the Board deter-
mined that the terms “any incident” and “significant public
interest” were overly broad to reasonably encompass and re-
strict communications concerning labor disputes.126 Moreover,
the Board found that, because the rule was so broadly worded,
the rule not only prohibited employee communication with the
media when the media sought the employer's “official com-
ments,” but could be construed to prevent all employee com-
munications with the media regarding a labor dispute; thus, was
susceptible to the reasonable interpretation that it barred Sec-
tion 7 activity.127
Like in Crowne Plaza Hotel, Respondent argues that its
news media guideline was intended to prohibit employees,
other than a designated spokesperson, from speaking to the
media on its behalf about confidential company operations (i.e.,
recent supply and demand issues in California and the resulting
price increases). However, Respondent’s news media guideline
suffers the same deficits as the policy in Crowne Plaza Hotel.
Specifically, because Respondent’s ambiguous rule prohibits all
“information exchange” about “company operations,” and those
terms are ill defined, the guideline, as written, could also en-
compass and prohibit communications about “wages,” “labor
disputes,” and other terms and conditions of employment.128
Because Respondent’s guideline fails to define its terms so as
to clarify what communication is permissible, I find that Re-
spondent’s rule reasonably tends to chill protected activity.129
Accordingly, Respondent’s news media guideline violates Sec-
tion 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent Phillips 66 is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Respondent violated Section 8(a)(1) of the Act by:
(a) Making unlawful, impermissible coercive threats to its
HSSs on January 16, 2012, that unionization would result in a
loss of/changes to certain duties, schedules and work hours.
(b) Making unlawful threats to its HSSs on January 19, 2012,
that impermissibly implied a promise of benefit to the HSSs if
they voted against the Union.

125 Crowne Plaza Hotel, 352 NLRB 382, 385–386 (2008).
126 Id. at 386.
127 Id.
128 Id.
129 See Trump Marina Casino Resort, 355 NLRB 585, slip op. at 1
(2010)(Board found employer’s rule which prohibited employees from
releasing statements to news media without prior approval and author-
ized only certain representatives to speak with the media was unlawful-
ly overbroad and could reasonably be construed to restrict Sec. 7 activi-
ty).
(c) Promulgating and maintaining an overly broad news me-
dia guideline that employees could reasonably understand to
prohibit them from speaking to the media about labor disputes,
wages, and other terms and conditions of employment.
3. Respondent violated Section 8(a)(5) by:
(a) Failing to bargain in good faith with the Union from May
through November 2012 when Respondent offered proposals
with no intention to reach agreement.
(b) Failing to bargain in good faith with the Union when Re-
spondent unilaterally declared impasse in negotiations.
4. Respondent violated Section 8(a)(3) by:
(a) Retaliating against its HSS for unionizing when Re-
spondent unilaterally implemented its final proposal that reas-
signed two HSSs to the position of Health and Safety Coordina-
tor and demoted the three remaining HSSs to the position of
Operator 1.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that the Respondent must be ordered to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act.
The CGC requests remedies in addition to those the Board
generally grants for the above violations. The Board has broad
discretion to fashion a just remedy to fit the circumstances of
each case it confronts.130 The Supreme Court has interpreted
Section 10(c) as vesting the Board with discretion to devise
remedies that effectuate the policies of the Act.131
The complaint requests that the notice to employees of the
violations found here be read to its employees at a mandatory
meeting during working hours. I decline to grant this enhanced
remedy. First, the CGC cites to no Board precedent to support
this special remedy. Second, while I find the violations Re-
spondent committed are serious, they are not “so numerous,
pervasive, and outrageous” such that additional remedies are
required “to dissipate fully the coercive effects of the unfair
labor practices found.”132
The Charging Party Union requests that the notice to em-
ployees be mailed or emailed since some employees affected by
Respondent’s unlawful conduct no longer work for Respond-
ent. Given that former HSS Steven McNeil was directly affect-
ed by Respondent’s unlawful conduct and he no longer works
for Respondent, I grant Charging Party’s request.
The complaint also requests an extended bargaining order
under Mar-Jac Poultry, 136 NLRB 785 (1962). Respondent did
not provide argument as to why Mar-Jac Poultry should not
apply. Because the circumstances of this case present inequities
similar to those in Mar-Jac, I find it applies and will recom-
mend the requested remedy of a six (6) month extension to
bargain with the Union as the recognized bargaining repre-
sentative in the appropriate unit.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended133

130 Maramont Corp., 317 NLRB 1035, 1037 (1995).
131 Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898–899 (1984).
132 Fieldcrest Cannon, Inc., 318 NLRB 470, 473 (1995).
133 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and recom-
PHILLIPS 66 31
ORDER
The Respondent, Phillips 66 of Santa Maria, California, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its former Health and Safety Shift Special-
ists or any other employee with a loss of/change to their duties,
schedules, work hours or any other term or condition of em-
ployment if they decide or select to join the Union.
(b) Impliedly promising its former Health and Safety Shift
Specialists or any other employee unspecified benefits in ex-
change for their vote against the Union.
(c) Promulgating, maintaining and/or enforcing an overly
broad news media guideline that employees could reasonably
understand would prohibit them from exercising their Section 7
rights.
(d) Failing and refusing to bargain in good faith with the
Union over the terms and work conditions of the Santa Maria
HSSs in the absence of a lawfully declared impasse.
(e) Reassigning employees Lionel Senes, Andrew Garcia,
Bernard Gallizio, Allen Lanier, and Steven McNeil or any other
employee to lower paying bargaining unit positions because
they voted to join the union, or otherwise discriminating against
any employee for joining and/or supporting the Union or for
engaging in any other protected concerted activity.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive rep-
resentative of the unit over the former Health and Safety Shift
Specialists Senes’, Garcia’s, Gallizio’s, Lanier’s, and McNeil’s
terms and conditions of employment, including their reassign-
ments into lower paying bargaining unit positions.
(b) Within 14 days from the date of the Board’s Order, offer
full reinstatement to employees Senes, Garcia, Gallizio, Lanier,
and McNeil to their former positions as Health and Safety Shift
Specialists, or, if that job no longer exists, to a substantially
equivalent position, without prejudice to their seniority or any
other rights and privilege previously enjoyed, and to make em-
ployees Senes, Garcia, Gallizio, Lanier, and McNeil whole for
any loss of earnings and other benefits suffered as a result of
the discrimination against them for exercising their Section 7
rights.134 Backpay shall be computed in accordance with Ogle
Protection Service, Inc., 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), with interest at the rate prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987)(adopting
the Internal Revenue Service rate for underpayment of Federal
taxes), compounded daily as prescribed in Kentucky River Med-
ical Center, 356 NLRB No. 8 (2010). Backpay due each em-
ployee should not be reduced by any interim earnings the em-
ployees may have generated during the backpay period pursu-
ant to Community Health Services, Inc. d/b/a Mimbres Memo-

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.
134 See n.53 in this decision.
rial Hospital & Nursing Home, 361 NLRB No. 25 (2014).
(c) Within 14 days from the date of the Board’s Order, Re-
spondent shall also be required to remove from its files any and
all references to the unlawful reassignment of the affected em-
ployees, and, within three (3) days thereafter, notify Senes,
Garcia, Gallizio, Lanier, and McNeil in writing that this has
been done and that the reassignment will not be used against
them in any way.
(d) Rescind or revise its news media guideline to remove
any language that prohibits or may be read to prohibit employ-
ees from exercising their Section 7 rights.
(e) Furnish, publish and/or distribute, either personally or by
mail to all current employees and by mail to all former employ-
ees, new news media guidelines that: (1) do not contain the
unlawful language, or (2) advises that the unlawful provisions
have been rescinded, or (3) provides the language of lawful
provisions that describes, with specificity, which types of con-
duct or communication is proscribed by the Agreement and the
conduct/communication that is protected by the Act.
(f) Within 14 days after service by the Region, post at its
Santa Maria facility, copies of the attached notice marked “Ap-
pendix”135 in both English and Spanish. Copies of the notice,
on forms provided by the Regional Director for Region 31,
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. In addition
to physical posting of paper notices, the notices shall be distrib-
uted electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees and former
employees by such means. Respondent also shall duplicate and
mail, at its expense, a copy of the notice to all former employ-
ees who were affected by its unlawful conduct. 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, 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 January 1, 2011.
(g) 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
Respondent has taken to comply.
Dated, Washington, D.C. November 25, 2014
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

135 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 BOARD32
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 any employee with a loss of/change to
their duties, schedules, work hours or other terms and condi-
tions of their employment if they select the Union to represent
them.
WE WILL NOT impliedly promise anything of benefit to any
employee in exchange for voting against being represented by
the Union.
WE WILL NOT maintain, promulgate or enforce any news me-
dia guideline that employees reasonably would believe bars or
restricts them from communicating with the media in exercis-
ing their Section 7 rights.
WE WILL NOT refuse to bargain with the Union in good faith
or unlawfully and unilaterally declare impasse during negotia-
tions.
WE WILL NOT reassign, transfer or demote employees Lionel
Senes, Andrew Garcia, Bernard Gallizio, Allen Lanier, and
Steven McNeil or any other employee because of their protect-
ed concerted activities on behalf of the Union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Federal labor law.
WE WILL rescind or revise our news media guideline to make
it clear to you employees that our media guidelines do not re-
strict you from communicating with the media in exercising
your Section 7 rights.
WE WILL notify employees of the rescinded or revised news
media guidelines in writing, including providing you with a
copy of any revised guidelines, acknowledgement forms or
other related documents, or specific notification that the guide-
lines have been rescinded.
WE WILL bargain with the Union in good faith over the for-
mer Health and Safety Shift Specialists’ terms and conditions
of work, including their reassignment out of their positions into
lower paying bargaining unit positions.
WE WILL reinstate employees Lionel Senes, Andrew Gar-
cia, Bernard Gallizio, Allen Lanier, and Steven McNeil to
their former positions as Health and Safety Shift Specialists,
or, if that job no longer exists, reinstate them to a substantially
equivalent position, without prejudice to their seniority or any
other rights and privilege previously enjoyed, and to make em-
ployees Senes, Garcia, Gallizio, Lanier, and McNeil whole for
any loss of earnings and other benefits suffered as a result of
the discrimination against them for exercising their Section 7
rights.
WE WILL reimburse employees Lionel Senes, Andrew
Garcia, Bernard Gallizio, Allen Lanier, and Steven McNeil
for wages lost resulting from their reassignment to other
lower paying bargaining unit positions when they unionized
and we unilaterally and unlawfully declared impasse in bar-
gaining with the union and implemented our final proposal
effective December 10, 2012.
WE WILL remove or expunge all records of and references
to Senes’, Garcia’s, Gallizio’s, Lanier’s, and McNeil’s reas-
signment to lower paying bargaining unit positions when
they unionized, and we unilaterally and unlawfully declare
impasse in bargaining with the Union and implement our
final proposal effective December 10, 2012.
PHILLIPS 66
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/31-CA-085243 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.