Go-Mart, Inc.

National Labor Relations Board - Board Decisions

Sep 14, 1995

318 N.L.R.B. 1101 (N.L.R.B. 1995)

1101
318 NLRB No. 116
GO-MART, INC.
1 The Charging Party asserts in its exceptions that the judge’s rul-
ings, findings, and conclusions demonstrate bias and prejudice. On
careful examination of the judge’s decision and the entire record, we
are satisfied that these contentions are without merit.
2 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility reso-
lutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing the
findings.
3 All dates are in 1993 unless stated otherwise.
1 The Respondent has moved to amend the transcript of this hear-
ing. There being no objection, the motion is allowed, and the tran-
script is amended as requested.
Go-Mart, Inc. / St. Mary’s Refining Company, Sin-
gle Employer and Oil, Chemical and Atomic
Workers International Union, Local 3-590,
AFL–CIO. Case 6–CA–25463
September 14, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On April 7, 1995, Administrative Law Judge George
F. McInerny issued the attached decision. The General
Counsel and the Charging Party each filed exceptions
and a supporting brief, and the Respondent filed an an-
swering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions and to adopt the recommended Order.
In agreeing with the judge that the Respondent did
not violate Section 8(a)(5) of the Act on April 12,
1993,3 by unilaterally selecting certain employees to
continue employment with the Respondent after others
were laid off, we emphasize the following facts.
Since February 2, the parties were engaged in ef-
fects bargaining over the Respondent’s decision to
close its facility on April 12. On April 5, the Respond-
ent informed the Union that, after closing, it would
continue to employ a residual work force consisting of
a terminal manager, waste treatment operator, and a
utility employee. The Respondent also provided the
Union with the names of those chosen to fill the termi-
nal manager and waste treatment positions.
On April 6, the Union requested certain information
concerning the Respondent’s selection process for fill-
ing the waste treatment and utility positions, including
the names of the employees selected for these posi-
tions. The following day, the Respondent informed the
Union that all of the requested information was avail-
able to the Union at the Respondent’s facility, and
would continue to be available through the April 12
closing. The Union, however, made no further attempt
to obtain the information, and did not raise the issue
again, until April 22.
In these circumstances, we find, in agreement with
the judge, that the Union failed to act with due dili-
gence in pursuing bargaining over the Respondent’s
April 5 proposal, and thus the Respondent’s implemen-
tation of its proposal on April 12 was not unlawful.
See Goodyear Tire & Rubber Co., 312 NLRB 674 fn.
1 (1993). Accordingly, we shall dismiss the complaint.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Barton A. Meyers, Esq., for the General Counsel.
Roger A. Wolfe and Ken Surber, Esq. (Jackson & Kelly), of
Charleston, West Virginia, for the Respondent.
Larry G. Abel, of Johnson City, Tennessee, for the Charging
Party.
DECISION
GEORGE F. MCINERNY, Administrative Law Judge. Based
on a charge filed on April 20 and amended on June 23,
1993, by Oil, Chemical and Atomic Workers International
Union, Local 3-590, AFL–CIO (the Union), the Acting Re-
gional Director for Region 6 of the National Labor Relations
Board (respectively, the Regional Director and the Board)
issued a complaint in which it is alleged that Go-Mart, Inc.
and St. Mary’s Refining Company (the Company or Re-
spondent) are a single employer, and that this Company has
taken some actions, and failed to take others, thereby violat-
ing certain provisions of the National Labor Relations Act,
29 U.S.C. § 151 et seq. (the Act). Go-Mart and St. Mary’s
Refining Company filed separate answers in timely fashion,
denying that they are a single employer, and also denying the
commission of any unfair labor practices.
After several delays, the matter came on to be heard be-
fore me in Parkersburg, West Virginia, on June 8 and 9,
1994.1 During the hearing, I was informed that additional
charges had been filed. As a result, when all the evidence
forthcoming in Case 6–CA–25463 had been received, I ad-
journed the hearing at the request of the General Counsel
until September 12, 1994, pending resolution of the pending
charges.
Thereafter, on July 7, 1994, I was informed by the General
Counsel that the pending charges had been withdrawn. I then
ordered this hearing closed. At the hearing all parties had the
opportunity to present testimony and documentary evidence,
to examine and cross-examine witnesses, to make motions
and offers of proof, and to argue orally. The parties declined
oral argument, but the General Counsel and the Respondent
filed briefs, which have been carefully considered.
Now, based on the entire record, including my observa-
tions of the witnesses and their demeanor, I make the follow-
ing
1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 All dates hereafter are in 1993, unless otherwise specified.
3 Roger A. Wolfe appeared as counsel for both Go-Mart and St.
Mary’s.
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges that Go-Mart and St. Mary’s are
West Virginia Corporations having their places of business in
that State; that Go-Mart is engaged in the retail sale and dis-
tribution of food and grocery products and that St. Mary’s
is engaged in the manufacture and nonretail sale of petro-
leum products; that Go-Mart purchased goods valued at over
$5000 directly from points outside the State of West Virginia
and derived, in a 12-month period ending March 31, 1993,
gross revenues of more than $500,000; and that St. Mary’s
purchased and received at its West Virginia location goods
valued in excess of $50,000 directly from points outside the
State of West Virginia and, during a 12-month period ending
March 31, 1993, shipped goods valued at more than $50,000
directly to points outside the State of West Virginia.
The answers did not deny the Board’s jurisdiction, and I
find that Go-Mart and St. Mary’s were and are engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answers admit, and I find that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
This case concerns an oil refinery located for some 50
years in St. Mary’s, West Virginia, on the banks of the Ohio
River. The refinery was built and operated for most of those
years by the Quaker State Refining Company. For almost
this same period, the employees have been represented by
the Oil, Chemical and Atomic Workers Union.
In the late 1980s, Quaker State sold the St. Mary’s oper-
ation to a company called Mid-Atlantic Fuels, which oper-
ated the refinery only until 1989, when it went into bank-
ruptcy. The refinery was then sold to Phoenix Refining Com-
pany. Both of these companies continued a collective-bar-
gaining relationship with the Union. Phoenix executed a col-
lective-bargaining agreement with the Union effective from
April 16, 1990, to April 15, 1992. Phoenix, however, did not
survive until this contract expired, having itself gone into
bankruptcy. In August 1991, the refinery was sold under
order of the bankruptcy court to Go-Mart, Inc., one of the
Respondents in this case. Go-Mart, in turn, established St.
Mary’s Refining Company to operate the facility. John Heat-
er was president of Go-Mart during the events which make
up this case, and Al Sweeley was vice president of St.
Mary’s Refining Company. The plant manager at the refinery
was Robert Winland.
After the sale of St. Mary’s, an International representative
of the Union, Lowell (Pete) Strader, wrote to Heater notify-
ing him of the Union’s legal status, and requesting a meeting
for purposes of negotiating a collective-bargaining agree-
ment. Heater agreed, and a preliminary meeting was held be-
tween the parties on January 9, 1992. On January 28, 1992,
Al Sweeley wrote to Strader informing him that the Com-
pany had received a petition from employees who thereby
signified their desire no longer to be represented by the
Union. The petition was signed by 29 employees out of 51
or so then employed at the refinery.
This action by the Company led to the filing of an unfair
labor practice charge on April 10, 1992, by Larry G. Abel,
another International representative and successor to Pete
Strader in Case 6–CA–24468. There was no further formal
action on the charge, but on July 13, 1992, the Company, by
its attorney, Roger A. Wolfe, recognized the Union as the
bargaining agent for the employees of the Company in con-
sideration of the withdrawal of charges by the Union.
Another snag developed in August 1992 when the parties
met again. At that time the Company alleged that only the
production employees in the refinery were properly rep-
resented by the Union, and that the maintenance employees,
who had constituted a part of the unit, were now employed
by a outside contractor, Shawnee Construction. The Union
went back to the Board, filing new charges in Case 6–CA–
24787 on August 11, 1992. These charges ended up in an
informal settlement agreement dated December 14, 1992, and
further negotiations were scheduled to begin on January 12
and 13, 1993.2
B. Stipulations and Admissions
l. At the opening of this hearing the parties agreed to defer
the question of whether Go-Mart and St. Mary’s Refining
Company are a single employer until the compliance stage
of the proceeding.
2. Also, during the course of the hearing, counsel for St.
Mary’s3 agreed on behalf of his client to amend St. Mary’s
answer to the complaint to admit:
a. Paragraph 4 of the Complaint, that about August,
1991 St. Mary’s purchased the business of Phoenix Re-
fining Co., and since then has continued to operate the
business as a refinery.
b. Paragraph 5, admitted that St. Mary’s is a continu-
ation of an employing entity and is a successor to Phoe-
nix.
c. Paragraph 11, that the following employees of
Phoenix constituted a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act:
All production and maintenance employees employed
by Phoenix at its St. Mary’s, West Virginia facility,
excluding office clerical employees, other salaried
employees, and guards, professional employees and
supervisors as defined in the Act.
d. Paragraph 12, alleging that from about 1948 to
about August, 1991, the Union has been the exclusive
collective bargaining representative of the Phoenix unit
employed by various predecessors, the most recent of
which being Phoenix, and during that period of time the
Union had been recognized as such representative by
various predecessors, the most recent of which being
Phoenix. This recognition has been embodied in succes-
sive collective bargaining agreements, the most recent
1103GO-MART, INC.
4 Roger Wolfe was the chief spokeman for the Company in all
these negotiations. He was assisted by Robert Winland and some-
times another person who took notes. Larry Abel was the chief
union spokesman. Pete Strader was there from time to time and a
union committee composed of Andrew Remish, Leon Willis, Billy
Joe Keith, and other employees.
5 There was no question raised about the legitimacy of this claim.
The Union requested that it be allowed to send an auditor in to look
at the Company’s books. The proposed layoff was postponed for a
week to allow the audit to take place on February 2. The audit took
place as scheduled, but the Union did not deny the Company’s posi-
tion except to point out one or twice that there was a lot of product
in tanks on the premises which, if sold, could recoup some of those
losses. I, therefore, infer and find that the Company’s plea of pov-
erty was borne out by the financial data revealed by the audit.
6 There was a great deal of testimony introduced here, without ob-
jection, about discussion on these contract proposals, together with
exhibits containing proposals by the Union and the Company for the
new contract. It is clear, however, that all of this evidence is really
irrelevant to the issues in the case. With certain exceptions, includ-
ing reference to contract proposals concerning seniority and recall,
I have not considered this evidence.
7 This letter was issued under the Worker Adjustment and Retrain-
ing Notification Act (WARN), 29 U.S.C. § 2102.
8 Most of the time spent in 11 meetings held by the parties be-
tween February 2, when the closing announcement was made, and
April 12, when the refinery closed, were taken up with either con-
tractual matters or proposals dealing with the effects of the closure
on the employees. Here, however, we are interested only in certain
aspects of the contract, and the effects of the closure. I have gone
over the entire record, and with respect to the so-called ‘‘effects’’
bargaining, I find that most of the evidence on that is not relevant
or material to the limited issues important to the issues here.
9 Due to inadvertent errors, these dates are given in the complaint
as 1992.
of which expired by its terms on or about April 15,
1992.
e. Paragraph 13, since about March 31, 1992, the
Union has been designated as exclusive collective-bar-
gaining representative of Respondent St. Mary’s Refin-
ing Company employees in the former Phoenix unit.
f. Paragraph 14, from about 1948 to about August,
1991, based on Section 9(a) of the Act, the Union had
been the exclusive collective bargaining representative
of the Unit employed by various predecessors, the most
recent of which being Phoenix.
g. Paragraph 15, at all times since about August,
1991, based on Section 9(a) of the Act, the Union has
been the exclusive bargaining representative of Re-
spondent’s employees in the former Phoenix unit.
All of the above allegations being admitted, I find all of
them to be facts in this case.
C. The Decision to Close the Refinery
When negotiations looking to a new collective-bargaining
agreement finally resumed on January 12 and 13, the parties
hardly had time to know each other, they had just exchanged
a few proposals, before the Company4 announced on June 13
that it had suffered ‘‘significant financial losses during
1992’’5 and was, therefore, going to implement a permanent
layoff and reorganization of the personnel at the refinery ef-
fective January 31. Nine employees were to be laid off, oth-
ers would suffer reductions in salary and shifts of duties.
The parties were concerned about this reorganization and
layoff at meetings on January 20, 21, and 29, together with
further exchanges on contract proposals6 and discussions of
the coming layoffs. On February 2, an even more serious
shock was in store for the Union. At that meeting, the Com-
pany presented a letter dated on that day, signed by Al
Sweeley, and informing the Union with ‘‘regret’’ that the re-
finery was being closed on April 12 and that a number of
employees would be permanently laid off.7 The letter did
state that ‘‘present plans also call for the possibility of em-
ploying a few persons to oversee a small terminal operation,
plant security, and upkeep of essential functions. There are
presently no bumping rights.’’
Attached to this letter was a list of 95 people, of whom
6 were described as supervisors, including Plant Manager
Robert Winland. The others were Health and Safety Director
Richard McCullough, Maintenance Supervisors Wayne M.
Nichols and Kendall Stanley, Laboratory Supervisor Franklin
G. Roby, and Process Supervisor Dale F. Calvin.
The union people present naturally expressed their ‘‘aston-
ishment’’ and concern. Larry Abel immediately demanded
that the Company bargain on the effects of the plant closure
as well as continued bargaining on the new contract.
D. Effects Bargaining8
The complaint alleges in paragraph 16 that about April 12,
the Company selected certain employees to continue employ-
ment at the refinery, after others were laid off. The Company
is alleged (par. 18) to have done this without prior notice to
the Union and without the opportunity to bargain about this
action, thereby violating Section 8(a)(1) and (5) of the Act.
Paragraph 19 of the complaint alleges that on April 6 and
May 16, 1993,9 the Union requested that the Respondent fur-
nish information regarding a list of employees retained (on
the job) by the Respondent, and a description of the process
used by Respondent or its selection of these employees to re-
main on the job. In paragraph 20, the complaint alleges that
this information was necessary for, and relevant to, the
Union’s performance of its duties as the exclusive bargaining
representative of the bargaining unit (found here to be an ap-
propriate unit). Paragraph 21 alleges that the Respondent
failed to furnish or delayed in furnishing the requested infor-
mation, again violating Section 8(a)(1) and (5) of the Act.
There is also no dispute that the Company had not advised
the Union, until that time, who was going to remain after the
closing.
But these incidents cannot be viewed in isolation. The evi-
dence shows that the WARN notice given by the Company
to the Union on February 2 contained the words, already
noted above, that the Company’s ‘‘present plans’’ con-
templated the retention of ‘‘a few persons to oversee a small
terminal operation, plant security, and upkeep of essential
functions.’’ (GCX 41.) The Union was aware, and it cer-
tainly is logical to understand, that one can’t just close down
and walk away from an oil refinery, albeit a fairly small one,
containing thousands of barrels of volatile liquids, storage
tanks, piping of various kinds, docks on the river, and other
administrative, storage, and refining structures, without some
people present on the site to clean up, unload storage tanks
and facilities, dismantle structures and piping complexes, and
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 For brevity’s sake, I will refer to this work throughout as ‘‘re-
sidual work.’’
11 I would note that the parties never did agree on a definition of
seniority. The Union maintained that seniority should run from the
time employees were originally employed in the refinery, whether
the employer was Quaker State, Mid-Atlantic, Phoenix or St.
Mary’s, some employees having 26 to 40 years at this location
(GCX 40). The Company, partly at least on the basis that no prior
employment records were made available to it when it took over the
property, held out for seniority to be computed from the date of hire
by St. Mary’s Refining Company, beginning in August 1991 (GCX
53).
12 Abel testified that, several times during negotiations, he had
asked Wolfe this question, but was met by the answer that Wolfe
did not know what work was going to be done, and who was going
to do it. Wolfe did not deny this, but said that he really did not
know. He said the Company was searching for funds, or low-interest
loans, to continue operations and that he had no instructions on what
to say about what residual work was to be done, or who was to do
it.
13 At this point the factual bases for the two complaint allegations
come together. As a matter of procedure I will complete the factual
history of both in a chronological way, then discuss each allegation
separately.
14 The Respondent, in its brief, makes a comment that ‘‘economic
issues have nothing to do with the residual workforce.’’ Economic
issues however could have a bearing on the Company’s decision to
close down the refinery. I will treat the request for data on the reten-
tion of residual workers on its own merits, apart from the informa-
tion about products remaining on the property or otherwise disposed
of.
provide security against damage, deterioration, and fire as
well as the contemplated terminal operation.
The Union prepared and submitted to the Company on
February 15, a list of proposals including one dealing specifi-
cally with what the parties referred to as ‘‘residual’’ work10
on the refinery premises. This proposal would provide that
‘‘the bargaining unit employees will perform all work at the
refinery if the proposed closure occurs (such as clean up, en-
vironmental or any other work).’’ (GCX 46.)
On February 16, the Company submitted its proposals for
handling the effects of the closure of the refinery. The Com-
pany also addressed to residual work: ‘‘All work which may
remain at the facility after the plant closing, if any, including
without limitation, demolition, clean up, environmental mon-
itoring, security, maintenance and terminal operations, shall
be assigned by the Company in its sole discretion. Such
work remaining after the plant closing shall not be consid-
ered bargaining unit work, and the Company expressly re-
serves the right to use independent contractors, contract out,
or subcontract any and all of such work.’’ (GCX 48.)
This Company’s proposal was specifically rejected, and
the Union held its own position on residual work in its pro-
posals for February 16 (GCX 49).
In a set of effects proposals dated February 22, the Com-
pany revised its proposal on residual work, limiting its option
to contracting the work out to ‘‘independent contractor(s)’’
(GCX 51). The Union countered this proposal by maintaining
its own current proposal (GCX 46), and by rejecting the
Company’s proposal (GCX 52).
These positions remained, substantially unchanged,
through meetings and exchanges of proposals on February 23
and March 2, 3, and 8. On March 23, the Company revised
its residual work proposal to provide that such work would
be ‘‘assigned by the Company at the Company’s sole and ex-
clusive discretion’’ (GCX 67). The Union also revised its
proposal, stating that all of this work ‘‘will be assigned by
seniority11 of those qualified to do the work’’ (GCX 68).
These positions continued through the March 24 meeting.
On April 5, Roger Wolfe, attorney and chief spokesman for
the Company, presented a new wage proposal. He added two
handwritten rates, one for utility personnel and another for
waste treatment operator. There were new rates and, accord-
ing to Larry Abel, were higher than other proposed rates for
similar jobs.
This started a discussion about who was going to be work-
ing in the plant after the shutdown.12 Wolfe replied that the
Company had decided to have a terminal operation, but
much smaller than the refinery itself. He told the Union that
Winland would be the terminal manager, and that the waste
treatment operator would be Richard McCullough, the health
and safety director, and a supervisory employee. The Com-
pany would keep one person in the utility job, but Wolfe did
know on April 5 who that would be. The job would involve
cutting grass and things like that.
Abel then asked how the Company had chosen McCull-
ough. Wolfe replied that they had considered everybody in
the plant for the waste water treatment operator. Abel
pressed him on the criteria used in the selection, and Wolfe
said that all qualifications were considered.
These was another bargaining session on the next day,
April 6.13 Abel had prepared and gone to the Company’s
representatives to present a request for information, as fol-
lows:
In order for the OCAW Local 3-590 to evaluate your
proposals from yesterday and so we can properly re-
quest the following:
1. As you are aware your company supplied the
Union with an inventory sheet indicating a huge inven-
tory in February, 1993. Please supply an updated inven-
tory sheet showing the inventory left at your facility.
Also please supply the inventory that has been sold,
moved, or in any way disposed of and the monies that
was received from this product. Please supply the esti-
mated cost of all current inventory. Our audit would ap-
pear that the losses you are claiming that you have in-
curred would be minimal once the products are ac-
counted for.
2. As you are aware you have stated only two em-
ployees are being kept after April 12, 1993. Since there
are a number of employees qualified both as utility and
the waste water area, please supply this list of names
considered and each one’s qualifications. Also please
supply the individuals names that was selected and the
determining factors that you used in selecting the same.
Since you have proposed an approximate 25% reduc-
tion in wages, benefits etc., this information will help
us better provide a counter proposals [sic] on the eco-
nomic issues.14
After these requests were presented, the parties continued
to negotiate. The Company presented a new proposal on re-
sidual work:
1105GO-MART, INC.
15 And, being an experienced management lawyer, he probably did
not want to become involved in a sure-lose, all-night bargaining situ-
ation.
16 Abel did not recall whether the call was received and returned
on April 7 or 8. The Respondent introduced Company telephone
records placing the outgoing call from St. Mary’s to Ashland at 1:07
p.m. in April.
17 I would estimate Ashland as being over 100 miles from St.
Mary’s.
18 These were GCX 79 and 80 signed by Albert F. Sweeley Jr. and
addressed to Larry Abel in Johnson City, Tennessee. There is no in-
dication that they were sent to Ashland, or that Abel received them
before April 9 or 10. Abel did say that his negotiations in Kentucky
did not extend into the weekend.
All residual and incidental work which may remain at
the facility after the plant closing, if any, including
without limitation, demolition, clean-up, environmental
monitoring, upkeep and terminal operations, shall be as-
signed by the Company as the Company reserves the
right, however, to contract out maintenance projects
such as filter house removal; maintenance of pumps,
values, and associated equipment; ground maintenance,
including moving; painting; installing pipeline from
ranks to loading rack and river dock; demolition; and
similar maintenance projects, provided that no such
contracting out shall be undertaken to replace the bar-
gaining unit employees who may still be employed at
the time of the contracting out. [GCX 76.]
An additional request for information was written out by
Abel at this meeting and given to Wolfe. The information
sought was the costs of tankermen’s rates for loading and un-
loading barges, and written job descriptions of the two new
classifications proposed by the Company (for the residual
jobs). (GCX 78.)
Toward the end of the April 6 meeting, Wolfe told Abel
that they were going ahead with McCullough, but they did
not yet know who was going to fill the utility job. Abel
asked when the Company would supply the data he had re-
quested, and Wolfe answered that he would have it by the
next Monday, April 12. Wolfe said that he would be on va-
cation out of town the next week but they set up meetings
for April 22 and 23.
Abel was concerned that he would not have the data on
criteria for selection of people to remain at the refinery.
Winland said that he would get the information together be-
fore April 12. Abel suggested that Wolfe and Winland go
back to the refinery, pull the information together, and come
back. He said ‘‘we’ll stay here until we can work this thing
out.’’
Wolfe declined to do that. He did not consider it fea-
sible,15 but he said that he realized that he had to get the
information together as soon as possible. Abel said that when
the Company got the information they should contact Leon
Willis or Andy Remish, and Abel would tell the Company
how to proceed. After the union people left, Wolfe told
Winland that they had to make decisions about who they
were going to keep, get this information to the Union, and
bargain about it. As they talked, Winland said he could have
the information by the next day. Wolfe tried to find the
union people, but they had left the meeting place. They tried
to call Andy Remish, a union committeeman, at home, but
failed to reach him. Wolfe then told Winland to get all the
personnel files, resumes, and applications and have them
ready to sit down and talk with the Union, going over each
and every person employed at the refinery. Wolfe then left
on vacation.
Up to this point there has been no dispute as to the facts
I have related, as well as facts which I have indicated I do
not view as material. There are slight but significant dif-
ferences over what happened in the 2 days following the
April 6 meeting. Larry Abel had gone to Ashland, Kentucky,
to negotiate with another company called Mark West Hydro-
carbon. Following Wolfe’s instructions, Robert Winland
spent the morning of April 7 putting the information to-
gether. Sometime that morning he talked to Remish and told
him that he would have the information available that after-
noon and asked him to get in touch with Abel and they
would talk about it. After lunch, Winland saw Remish again
and asked him if he had contacted Abel. Remish said no, but
told Winland where Abel could be reached. Winland then
called Abel at a Holiday Inn in Ashland. Abel was not there,
but he returned the call around 3 o’clock that afternoon.16
According to Winland, he told Abel that he was going to
have the information ready that afternoon, and that he would
be available at any time up to April 12. Abel said that he
would ‘‘get with my committeemen and I’ll get back to
you.’’
Abel’s testimony was in agreement with Winland’s up to
the point of describing their conversation. Abel stated that
after a casual exchange of pleasantries, Winland said that he
had ‘‘the list of the names of the folks that was going to be
kept at the refinery.’’ Winland asked Abel if he would like
to come by the refinery and pick them up. Abel replied that
he was in Ashland17 and couldn’t pick them up, but asked
that Winland fax or mail them to him. Sometime, a day or
two after that, Abel said he received two letters listing em-
ployees to be retained at the refinery.18
Abel did not mention that Winland talked to him about
any other information which had been requested, nor did
Abel testify that he even asked for that additional informa-
tion. He explained, while he was on the witness stand that
he saw no point in going to St. Mary’s because he knew that
Wolfe was going to be on vacation, and that another negotia-
tion session was already scheduled for April 22.
I found Abel to be an honest witness, but his memory was
not good, and his failure to mention an issue, the information
about criteria used to pick the residual employees, and the
qualifications of all the employees at the plant, which he had
previously maintained was important for continued bargain-
ing, can be attributable either to a memory lapse or a tacit
admission that the information was not as important as he
had said it was. This was further borne out because he did
nothing further about the requested information until at least
April 23, almost 2 weeks after the refinery was closed.
I found Winland’s testimony more logical, in the light of
what had been said at the close of the April 6 meeting. His
explanation that he could not see sending over 90 personnel
files, applications, and resumes at that time is also reasonable
and logical. Thus, I credit Winland’s testimony that he told
Abel on the telephone on the afternoon of April 7 that he
had the information, that Abel replied that he would get with
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 After the meeting of April 23 there was some correspondence
on the missing information. The matter was not finally settled until
a meeting of June 10, when the parties spent several hours going
over the files of all of the former employees of St. Mary’s Refining
Company.
20 There was no indication in this record that bargaining on these
issues would have been futile. Owens-Corning Fiberglas Corp., 282
NLRB 609 (1987).
21 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
his committee and then contact Winland, and that he did not
do that until the matter was brought up again on April 22.19
These facts show that the Company here notified the
Union 69 days before the scheduled closing of the plant that
the plant was going to close, and that a scaled down terminal
operation was contemplated, involving the continued employ-
ment of some employees. Thus, the notice that some employ-
ees were to be retained was not postponed or presented to
the Union as a fait accompli on April 6, 7, or 8. Both Abel
and Wolfe testified that the subject of what employees would
be retained was brought up several times during extended
meetings between February 2 and April 12, the closing date.
On each occasion Abel asked who was to be retained, and
Wolfe right down to April 5 said he didn’t know. There was
nothing which would have prevented the Union from re-
questing bargaining, or making proposals dealing with the
positions which would logically have to be filled in a refin-
ery closing situation. But the Union did not do that.
There were discussions, although there was no testimony,
and no evidence except the lists of proposals exchanged dur-
ing negotiations, which are included as exhibits here, about
seniority, and about recall. These particular subjects were im-
portant to the issue here. As I have noted, the Union wanted
seniority to date from first employment at the site; the Com-
pany would restrict seniority to employment be with St.
Mary’s Refining Company. On recall, the Union proposed
seniority, later modifying this to seniority with qualifications.
The Company insisted on complete discretion in recall or re-
tentions, later modifying this to allow some consideration of
seniority. But the parties were far apart, and without an
agreed-on definition of seniority, there was no common
ground on which they could discuss recall or retention of
employees.
Aside from these barriers to agreement,20 I believe that
there was an area of retention of employees, which the
Union, having received timely notice, failed to pursue. I can-
not hold the Respondent responsible for the Union’s lack of
diligence in this area, and I do not believe that the Respond-
ent has failed to give appropriate notice of its intent to retain
employees at the St. Mary’s Refinery after April 12, 1993,
in violation of Section 8(a)(1) and (5) of the Act. See Jim
Walter Resources, 289 NLRB 1441 (1988); Haddon Crafts-
men, 300 NLRB 789 (1990).
The complaint also alleges that since about April 6, 1993,
the Company has failed, or delayed, to furnish information
requested by the Union on April 6 and on May 12, 1993.
There is no real issue as to the allegation of failure to fur-
nish the information. There never was any indication in the
record that the Respondent refused or failed to comply with
any of the many requests for information made from Feb-
ruary 2 until after May 12, 1993.
With respect to the question of unlawful delay, I note my
findings above on the April 6 request. There, I found that the
requested information was compiled on April 7, the day after
the request, and on that same day the Union was notified of
the availability of the information at the refinery in St.
Mary’s, West Virginia. Larry Abel, I have found, told Robert
Winland that he would get hold of his committee and notify
Winland of what they were going to do. He never did notify
Winland, and never did come to the refinery to look over the
materials which were there available to him.
Later, on April 23 and in writing on May 12, Abel com-
plained that he had not received the information he had
asked for on April 6, and which, I infer and find, was still
available at the refinery, which was still operating as a termi-
nal. After some correspondence back and forth, the parties fi-
nally got together on June 10, and went over the documents
and records originally requested on April 6.
There is no indication that the delay was in any way occa-
sioned by the fault of the Company. At the point when time
was of primary importance, the period between the request
for information on April 6, and the closing of refinery oper-
ations on April 12, the evidence shows that the Company ex-
pedited the preparation of the requested materials, made them
available to the Union, and notified the Union of their avail-
ability.
Later, after the refinery was operating with residual em-
ployees, there was no apparent reason, nor any evidence in
this record, that any delays, say from May 12 to June 12,
caused any prejudice to the Union in its fulfillment of its
bargaining obligations.
In this instance, also, I can find no violations of Section
8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondents Go-Mart, Inc. and St. Mary’s Refining
Company are employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Oil, Chemical and Atomic Workers International Union,
Local 3-590, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondents did not commit any unfair labor prac-
tices as alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended21
ORDER
The complaint is dismissed in its entirety.