Getty Refining And Marketing Co.

National Labor Relations Board - Board Decisions

May 14, 1986

279 N.L.R.B. 924 (N.L.R.B. 1986)

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