ExxonMobil Fuels & Lubricants

JD(SF)-01-26 Baytown, Texas

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES SAN FRANCISCO

EXXON MOBIL CORPORATION

Respondent Cases 16-CA-290036 16-CA-290519 16-CA-302487 and 16-CA-290526 16-CA-303915 16-CA-290546 16-CA-304080 16-CA-292224 16-CA-304573 16-CA-292282 16-CA-304603

UNITED STEEL, PAPER AND FORESTRY,

16-CA-294488 16-CA-305679

RUBBER, MANUFACTURING, ENERGY,

16-CA-294495 16-CA-305915

ALLIED INDUSTRIAL AND SERVICE

16-CA-295335 16-CA-309596

WORKERS INTERNATIONAL UNION

16-CA-296466 16-CA-309608 LOCAL 13-2001 16-CA-296486 16-CA-309643 16-CA-297963 16-CA-309648

Charging Party

16-CA-298119 16-CA-312280

16-CA-298619 16-CA-312281

16-CA-298640 16-CA-315679

Julie St. John, Bryan Dooley and Joan Larson, Esqs., for the Acting General Counsel. Jonathan J. Spitz, Dan Schudroff,

Thomas P. McDonough and Thomas L. Petriccione, Esqs. (Jackson Lewis, P.C.), for the Respondent. Craig Stanley, Esq., and Eva Shih, Esq. (Exxon Mobil Corporation), for the Respondent. Patrick Flynn, Esq. (Patrick M. Flynn, P.C.) and Sasha Shapiro, Esq. (United Steelworkers), for the Charging Party.

DECISION

STATEMENT OF THE CASE

MARA-LOUISE ANZALONE, Administrative Law Judge. This case was tried in Houston, Texas over the course of 6 days from October 21, 2024, to November 13, 2024. The United

1

JD(SF)-01-26 Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union Local 13-2001 (Charging Party, the Union or Local 13-2001) filed charges and amended charges, as captioned above, against Exxon Mobil Corporation (Respondent or Exxon Mobil). An Order Consolidating Cases, Consolidated Complaint and

5 Notice of Hearing issued on May 6, 2024; an Order Further Consolidating Cases, Second Consolidated Complaint and Notice of Hearing issued on September 4, 2024 (the complaint). The Acting General Counsel alleges that Respondent violated Sections 8(a)(5) and (1) of the National Labor Relations Act (the Act) by failing to respond to, or untimely responding to, information requests and by making unilateral changes to unit employees' working conditions. It 10 is additionally alleged that Respondent, by its managers, violated Section 8(a)(1) of the Act by making coercive statements to employees. Respondent filed a timely answer to the complaint denying all material allegations.

At trial, all parties were afforded the right to call, examine, and cross-examine witnesses, to present any relevant documentary evidence, to argue their respective legal positions orally, and 15 to file post-hearing briefs.¹Post-hearing briefs were filed by the Acting General Counsel, Charging Party and Respondent, and each of these briefs has been carefully considered. Accordingly, based upon the entire record herein, including the post-hearing briefs and my observation of the credibility of the witnesses, I make the following

20 FINDINGS OF FACT²

I. JURISDICTION

At all material times, Respondent has been a Texas corporation, with multiple offices and 25 places of business in the State of Texas, including the ExxonMobil Baytown Complex, located in Baytown, Texas (Baytown facility or complex), and has been engaged in the business of refining and distributing oil and gas, and producing and distributing various chemicals. Annually, Respondent sold and shipped from its Baytown facility goods valued in excess of $50,000 directly to points outside the State of Texas. Respondent is an employer engaged in commerce 30 within the meaning of Section 2(2), (6), and (7) of the Act. Furthermore, Local 13-2001 is a labor organization within the meaning of Section 2(5) of the Act.

2

JD(SF)-01-26 Based on the foregoing, I find that this dispute affects commerce and that the National Labor Relations Board (the Board) has jurisdiction of this case, pursuant to Section 10(a) of the Act.

II. GENERAL FACTUAL BACKGROUND

5

Respondent operates the Baytown facility, which consists of a crude oil refinery, chemical plant and laboratory. Since the early 1960s, the Union has represented three bargaining units at the facility: the Chemical Company Unit, the Lab Unit and the Fuels & Lubricant Unit (collectively, the bargaining units).³There are approximately 1,000 employees across the 10 bargaining units, and a total of approximately 4,000 employees at the Baytown facility. (Tr. 37- 39, 42, 44-47.) At all relevant times, a collective bargaining agreement was in place covering each of the bargaining units. See GC Exhs. 2, 3, 4.

Each of the information requests at issue in this case was drafted by Local 13-2001's then-

15 President and Business Agent Ricky Brooks (Brooks). Brooks has represented bargaining unit employees since 2000 in various Union roles. Since 2020, he has also worked full-time at the Baytown facility at its scale house (discussed in more detail below). From September 2021 until April 2024, Respondent's Labor Relations Advisor Patrick Fields (Fields), was charged with responding to Brooks' information requests. (Tr. 40-43, 744-745, 748-749, 1041, 1133-1134).

20

III. THE ALLEGED UNFAIR LABOR PRACTICES

A. The Alleged Unilateral Changes

25 The Acting General Counsel argues that Respondent made changes to three of its policies affecting unit employees' working conditions without affording the Union notice and the opportunity to bargain. These policies address respirator wear, drug testing and floating holidays. Respondent counters that no change occurred with respect to the second and third policies and, with respect to the first, any material and significant change was undertaken 30 pursuant to its rights under the parties' collective bargaining agreements.

1. Clean shaven/respirator policy The Acting General Counsel alleges, and Respondent admits, that in October 2021,

35 Respondent, without notice or bargaining, modified a written policy that previously required all employees to be clean shaven. While admitting to changing the clean-shaven policy unilaterally, Respondent claims that this conduct did not violate 8(a)(5) because: (a) the revision did not amount to a material change; and (b) because the Union waived its right to bargain over them. I disagree with Respondent's first position but agree with the second.

40

a. Facts

(i) The relevant contractual language

3

JD(SF)-01-26 Each of the parties' CBAs contains an identical management rights clause, which reads as follows:

5 FUNCTIONS OF MANAGEMENT

The Company shall retain all rights of management resulting from the ownership of its plant and facilities or pertaining to the operation of the business, except to the extent that such rights are 10 limited by the provisions of this Agreement. (GC 2 at 11; GC 3 at 10; GC 4 at 11.) Each contract also includes a separate article entitled,

"Working Rules," which states:

15 As a means of directing the working force, directing and controlling operations of the Plant, and maintaining discipline and appropriate standards of both individual and group conduct, the Company will from time to time, as it deems advisable, publish working rules. The application of such rules shall not be in conflict 20 with any provision of this Agreement.

(GC 2 at 29; GC 3 at 28; GC 4 at 11.)

Finally, each of the contracts also includes a clause entitled, "Health and Safety," which 25 reads:

Health and Safety are foundational Company/Union values.

In upholding the values, the Company/Union shall persistently

strive: (1) to maintain sanitary and healthful working conditions; 30 (2) to prevent industrial accidents; (3) The Company shall provide adequate hospitalization at Company expense for the care

of employees injured in the line of duty; and (4) The Company

shall provide health supervision by a competent medical staff.

35 The clause also expressly reserves to Respondent the right to use video technology to monitor safety in the workplace, as well as the right to take unilateral action to ensure workers' safety and health in emergency situations. (GC Exh. 2 at 31-33; GC Exh. 3 at 30-31; GC Exh. 4 at 24-25.)

(ii) Site Safety Standard 3030 and the "Clean Shaven Policy"

40

Respondent maintains numerous "Site Safety Standards," which are written rules governing various aspects of workplace safety. One of these standards, Site Safety Standard 3030, titled

"Respiratory Protection" (SSS 3030) sets out Respondent's Respiratory Protection Program. The Respiratory Protection Program is administered by Respondent's Industrial Hygiene

45 Coordinator, who is responsible for ensuring that the program is "effective and properly implemented" and is specifically charged with conducting an annual review of the program and

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JD(SF)-01-26 updating it as needed. Pursuant to the Respiratory Protection Program, Baytown employees have been required—for at least the past 33 years—to wear respirators as instructed by management. It is undisputed that an employee in violation of SSS 3030, which contains this requirement, is subject to discipline. (GC Exhs. 13, 24; Tr. 581.)

5

Prior to October 2021, SSS 3030 also contained a provision referred to as the "clean shaven policy"—mandating that Baytown employees be clean-shaven in order to be properly fitted with respirators.⁴The policy applied to the entire workforce, regardless of whether an employee's job duties would actually call for wearing a respirator, stating:

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Facial hair, including beards, goatee's, sideburns or mustaches, which intrude into the sealing surface of tight fitting respirators or which interfere with the function of the respirator's valves, are strictly prohibited.

15

(Tr. 582-583; GC Exh. 13.) Discretion as to what constitutes "clean shaven" is reserved to management; SSS 3030 states that "[t]he immediate supervisor will have the final authority for requesting an individual to shave." Id.

20 (iii) Respondent relaxes its "Clean Shaven Policy"

In October 2021, Respondent revoked SSS 3030's clean shaven requirement for all employees except process operators (whose job duties actually call for wearing a tight-fitting respirator); according to Respondent, this meant that 80 percent of the Baytown employees 25 became exempt from the requirement. (R. Br. at 21.) In early October, Fields verbally informed Brooks that SSS 3030 was being changed to allow employees to have facial hair unless required to shave for specific tasks; he sought Brooks' assistance in communicating the requirement to shave for specific tasks to the unit employees.

30 Shortly after this conversation, Brooks emailed Fields a demand to bargain over the change. As he explained, because failing to adhere to safety rules, such as the clean-shaven policy, could serve as a basis for discipline, he sought to clarify what unit members would be expected to do under the relaxed policy. In addition, he testified, union officials were concerned about the fairness of the new policy, which would continue to require process operators to shave, while 35 exempting other employees. (Tr. 91-92, 102-106, 258-259, 583; GC Exh. 14.)

(iv) The parties' past practice regarding changes to SSS 3030 The record reveals that Respondent had a regular practice of unilaterally revising its Site

5

JD(SF)-01-26 Safety Standards, including SSS 3030, without objection by the Union.⁵Specifically, it is undisputed that, prior to October 2021, the Union took no action when Respondent unilaterally revised SSS 3030 on dozens of occasions (26 in all). (Tr. 252-253, 300.) Although Brooks testified that none of these prior revisions had any adverse impact on the health and safety of unit 5 employees, this testimony appeared somewhat rehearsed and went uncorroborated by documentary evidence; I therefore do not credit it.

b. Analysis

10 An employer violates Section 8(a)(5) and (1) of the Act if it changes employees' terms and conditions of employment which are material, substantial and significant without first providing their bargaining representative with notice and the opportunity to bargain about the change or reaching a valid impasse. NLRB v. Katz, 369 U.S. 736, 743 (1962). Whether a change rises to the level of material, substantial, and significant is determined "'by the extent to which it departs 15 from the existing terms and conditions affecting employees.'" Salem Hosp. Corp., 360 NLRB 768, 769 (2014) (citing Southern California Edison Co., 284 NLRB 1205, 1205 fn. 1 (1987), enfd. 852 F.2d 572 (9th Cir. 1988)).

(i) The October 2021 change was material.

20

Respondent claims that relaxing the clean shaven policy was not a material change because it merely revoked a seemingly gratuitous shaving requirement for employees who were not actually required to wear tight-fitting respirators. I disagree.

25 It is well established that a uniform requirements and workplace dress codes constitute mandatory subjects of bargaining. See, e.g., Salem Hosp. Corp., 360 NLRB 768, 769 (2014), Medco Health Solutions of Las Vegas, Inc., 357 NLRB 170, 171-172 (2011); Crittenton Hospital, 342 NLRB 686, 690 (2004); Public Service Co. of New Mexico, 337 NLRB 193, 199 (2001). The Board has found, however, that a minor change to such a policy not shown to 30 adversely affect employees, is not material and substantial enough to constitute an unfair labor practice. Id. In Crittenton Hospital case, for example, the Board found that a hospital's previous policy, which ""strongly discouraged artificial nails," and its new policy, which outright prohibited artificial nails, were not so materially different to constitute an 8(a)(5) and (1) violation. 342 NLRB at 690.

35

In the instant case, by contrast, employees were not merely subjected to a minor change to an existing policy; rather, Respondent wholesale revoked the requirement that certain employees shave for work each day. Moreover, the Board has specifically found that a policy that precludes the wearing of facial hair in order to accommodate tight-fitting respirators constitutes a

6

JD(SF)-01-26 mandatory subject of bargaining. Public Service Co. of New Mexico, 364 NLRB 1017, 1021, 1022 (2016) (finding employer to have unilaterally implemented clean-shaven/respirator policy in violation of 8(a)(5)); see also Hanes Corp., 260 NLRB 557, 563 (1982) (same). It follows that the revocation of such a policy for a particular group of employees is also a bargainable subject.

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(ii) The Union waived its right to bargain over changes to SSS 3030. Respondent alternately argues that it was privileged to unilaterally modify the clean shaven/respirator policy because, by virtue of the parties' collective bargaining agreement and 10 past practice, the Union waived its right to bargain over this action. I agree.

(a) The standard for waiver: "contract coverage" vs. "clear and unmistakable"

The Board's traditional waiver analysis seeks to determine whether some combination of 15 contractual language, bargaining history and past practice establishes that the union waived its right to bargain. Endurance Environmental Solutions, LLC, 373 NLRB No. 141, slip op. at 2 fn. 14 (2024). Since 1949—and except for a period between September 10, 2019 though December 10, 2024—the Board has applied the "clear and unmistakable" waiver standard, which "requires bargaining parties to unequivocally and specifically express their mutual intention to permit 20 unilateral employer action with respect to a particular employment term, notwithstanding the statutory duty to bargain that would otherwise apply." Id. at slip op. 1. The Board "looks to the precise wording of the relevant contract provisions." Hospital Español Auxilo Mutuo de Puerto Rico, Inc., 374 NLRB No. 6, slip op. at 5 (2024). Further, management-rights clauses expressed in general terms and making no reference to any particular subject will not be considered as a 25 waiver of statutory rights to bargain over a specific subject. Endurance Environmental Solutions, supra, slip op. at 18.

During its half-decade departure from this standard, the Board replaced it with a "contract coverage" defense, whereby waiver is found if the employer's unilateral change "falls within the 30 compass or scope of the contract language that grants the employer the right to act unilaterally."

MV Transportation, Inc., 368 NLRB No. 66, slip op. at 11 (2019). Under this standard, the Board will not require that the parties' contract specifically mention, refer to, or address the employer's decision at issue. MV Transportation, supra at slip op. at 11-12 (2019). In its 2024 return to the clear and unmistakable waiver test—set forth in Endurance Environmental, supra— 35 the Board left resolution of retroactive application of the reinstated standard to a future determination. Id. at slip op. 21. This means my initial determination must be whether the clear and unmistakable or contract coverage standard should apply here.

The Board will apply a new rule retroactively unless doing so will result in manifest 40 injustice. SNE Enterprises, 344 NLRB 673, 673 (2005). In making that determination, "the Board will consider the reliance of the parties on preexisting law, the effect of retroactivity on accomplishment of the purposes of the Act, and any particular injustice arising from retroactive application." Id.; see also Cristal USA, Inc., 368 NLRB No. 141, slip op. at 2 (2019). The Board has since found the retroactive application of Endurance Environmental appropriate on one 45 occasion. In that case, however, the Board specifically noted that the parties had negotiated their collective bargaining agreement prior to MV Transportation, that is, at a time when the clear and

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JD(SF)-01-26 unmistakable waiver standard applied. Accordingly, the Board found, "while negotiating the agreement, the Respondent could not have detrimentally relied on the 'contract coverage' standard…" Hospital Español Auxilo Mutuo de Puerto Rico, Inc., 374 NLRB No. 6, slip op. at 5

(2024).

5

Here, Respondent argues by contrast that retroactive application of Endurance Environmental would unfairly punish it for relying on the interim, contract coverage standard in negotiating the relevant collective bargaining agreements. This would be a compelling argument were it backed by the evidence. I find, however, that Respondent failed to adduce evidence that 10 each of the relevant contracts was, in fact, negotiated prior to December 10, 2024. I will therefore apply the clear and unmistakable test.

(b) The contractual language and past practice meet the "clear and unmistakable" standard for waiver.

15

I agree with Respondent that, pursuant to the Endurance Environmental standard, it was granted the right, by virtue of the parties' collective bargaining agreements as well as the parties' past practice, to narrow the scope of SSS 3030 to apply only to process operators.

20 In BASF Wyandotte Corp. (decided under the Board's pre-2019 clear and unmistakable standard), the Board found lawful an employer's unilateral implementation of new rule, effectively prohibiting facial hair on employees who may from time to time need to wear respiratory protective equipment. 278 NLRB 173 (1986). In that case, the employer relied on a management rights clause reserving its right to "make and enforce such rules as the Company 25 may deem necessary or proper for the conduct of its employees and the operation of the plant."

Id. at 177-178. Noting that this clause was adopted at a time when there were existing general safety rules and plant regulations expressly providing for wearing of respirators where indicated or directed by the employer. The Board found that, viewed in light of such rules, the provisions of the management-rights clause operated to waive the union's right to bargain about new rule 30 against facial hair. Id. at 181-182.

Respondent's recission of its clean-shaven requirement for non-process operators is akin to the ban on facial hair considered in BASF Wyandotte. As in that case, the CBAs at issue here reserve to Respondent the discretion to publish working rules as "means of directing the working 35 force, directing and controlling operations of the Plant and maintaining discipline and appropriate standards of both individual and group conduct." For over 30 years, one of these rules—SSS 3030—has required Respondent's employees to don respirators as directed by management. Accordingly, when the parties agreed to the current contractual language reserving to Respondent the right to promulgate working rules, this constituted a waiver of the Union's 40 right to bargain concerning the terms of SSS 3030, including the clean shaven requirement. In addition, I note that the parties' past practice also indicates waiver. In this regard, SSS 3030 itself contemplates (and in fact mandates) that a designated management official review SSS 3030 annually and update it as needed. As the record demonstrated, the policy had been 45 modified prior to 2021 on at least 26 other occasions without protest by the Union. Thus, modifying the policy did not in fact alter the status quo because it was part of a regular,

8

JD(SF)-01-26 longstanding and consistent past practice. See Wendt Corp., 372 NLRB No. 135, slip op. at 4

(2023).

Accordingly, I find that Respondent was privileged by virtue of the Union's waiver to 5 unilaterally modify SSS 3030's clean shaven requirement and therefore recommend dismissal of the allegation that Respondent violated Section 8(a)(5) by doing so.

2. Drug testing

10 The Acting General Counsel alleges that, on September 28, 2022, Respondent changed its drug and alcohol testing policy by expanding the circumstances under which post-accident drug testing is performed. As noted, Respondent denies changing the policy as alleged. It also claims that this allegation should be deferred to the parties' grievance and arbitration procedure. I disagree that deferral is appropriate but agree with Respondent that the allegation lacks merit.

15

a. Facts Respondent's drug testing policy is codified in a "supervisor checklist" that spells out four situations in which a bargaining unit may be required to take a drug and alcohol test, stating:

20

A decision to test is appropriate when an employee is suspected of being unfit for work. This would normally require evidence of at least one of the following events: (1) observable signs of impairment (e.g., alcohol on breath, frequent unexplained absences, 25 poor coordination, slurred speech, etc.); (2) finding unauthorized alcohol, drugs, or drug paraphernalia in a location to which the employee has access; (3) unusual, inappropriate, or noticeably changed behavior occurring either suddenly or gradually over time;

(4) an inexplicable accident, incident, near miss, or injury where 30 impairment due to consumption of alcohol or drugs may have been a contributing factor.

GC Exh. 16 at 1. The checklist further states, "[s]upervisors have the authority to determine when a test should be administered." Id.

35

On September 28, 2022, Site Superintendent John Watson (Watson) ordered bargaining unit employee Thomas Drewery (Drewery) to undergo a drug and alcohol test. This occurred after Drewery, who had worked at Baytown for nearly ten years, stepped in a large (2½ to 3 feet diameter) puddle of hot steam condensate⁶while tracing a line overhead. Tracing a line involves 40 following a pipe in a pipe rack from one location to another and is a common job duty for process operators, such as Drewery. Watson interviewed Drewery, who admitted that he had been aware of the puddle before he stepped into it. This, according to Watson, as well as the sheer size of the puddle, made it necessary to rule out the possibility that Drewery was impaired .

9

JD(SF)-01-26 As he testified, "[w]hy else would he step into a puddle of hot condensate that he knew was there?" (Tr. 382-385, 402-404, 472, 483.)

Drewery requested union representation and Union President Brooks became involved, 5 calling Watson in an effort to convince him that drug testing Drewery was unnecessary. During this conversation, according to Brooks, Watson told him that the "directive" was that "they're going to test for every incident, every time." I found this testimony, however, rehearsed and do not credit it.⁷There is no evidence that Respondent in fact ordered a drug test after every

"incident" that took place after September 28, 2022.

10

Ultimately, Drewery submitted to the test and was placed on paid leave for approximately one week, pending the results. While on leave, Drewery exchanged text messages with Second Line Supervisor Todd Rose (Rose). When Drewery complained that he felt getting tested was

"bull crap," Rose responded, "Really? I thought it was pretty common to get DNA'd [drug and 15 alcohol tested] after an incident. Maybe things have changed since 2010." (Tr. 133, 387; GC Exh. 19.)

After Drewery's test came back negative, however, Rose apparently changed his mind. On October 5, 2024, he texted Drewery:

20

I've had discussions with several upper management since this happened—Fullen, Shockley and Adamson—questioning what prompted the D&A. I also let them know that everyone at LECC [Light Ends Control Center] including all FLS's [First Line

25 Supervisors], myself and Arturo strongly feel the decision was bullshit.

(GC Exh. 19.) When Drewery returned to work on October 6, 2022, Rose called him to his office. Explaining that he and the other supervisors in the Drewery's unit did not agree with him 30 being tested, he said they were sorry that it had happened. According to Drewery, Rose also told him that "it came down that we had had a lot of incidents around the site, and just, they were drug testing the next thing, and I was the next thing." The record contains no evidence of the spate of incidents to which Rose allegedly referred. (Tr. 394-396.)

35 b. Analysis

(i) Deferral is inappropriate. Whether deferral to the grievance and arbitration process is appropriate is a "threshold 40 question" which must be decided prior to addressing the merits of the allegations at issue. Sheet Metal Workers Local 18--Wisconsin (Everbrite, LLC), 359 NLRB 1095, 1096 (2013) (quoting L.

10

JD(SF)-01-26 E. Myers Co., 270 NLRB 1010, 1010 fn. 2 (1984)). Under Collyer and United Technologies, prearbitral deferral to the grievance and arbitration procedure is warranted where:

the parties' dispute arises within the confines of a long and 5 productive collective-bargaining relationship; there is no claim of animosity to employees' exercise of Section 7 rights; the parties' agreement provides for arbitration in a broad range of disputes; the parties' arbitration clause clearly encompasses the dispute at issue; the party seeking deferral has asserted its willingness to utilize 10 arbitration to resolve the dispute; and the dispute is well suited to resolution by arbitration.

Sheet Metal Workers Local 18--Wisconsin, 359 NLRB No. at 1095-1096 (citing United Technologies, 268 NLRB 557, 558 (1984); Collyer Insulated Wire, 192 NLRB 837, 842 (1971)).

15 The Board has held that its deferral policy ensures that where the parties have voluntarily created a dispute resolution mechanism "culminating in final and binding arbitration, it is contrary to the basic principles of the Act for the Board to jump into the fray prior to an honest attempt by the parties" to resolve conflict through that means. United Technologies, 268 NLRB at 558.

20 The Board has previously deferred to the grievance and arbitration procedure allegations that an employer violated Section 8(a)(5) of the Act by unilaterally implementing substance abuse or drug testing policies. See, e.g., United Hoisting & Scaffolding, Inc., 360 NLRB 1258, 1261 (2014) (citing cases). Respondent, however, is currently defending against charges that it unlawfully repudiated the very grievance procedure to which it would have me defer this 25 allegation. See ExxonMobil Chemical Co., JD(SF)-14-25, 2025 WL 1662489 (Jun. 11, 2025). Under such circumstances, deferral is inappropriate. United Technologies, 268 NLRB at 560 (noting the Board will not defer where there is a "rejection of the principles of collective bargaining") (quoting General American Transp. Corp., 228 NLRB 808, 817 (1977) (Members Penello and Walther, dissenting)); Collyer, 192 NLRB at 845 (Member Brown, concurring) 30 (deferral inappropriate where there is a "repudiation of the collective bargaining process).

(ii) Respondent did not abandon its established drug testing standard in violation of § 8(a)(5).

35 The Acting General Counsel asserts that Drewery's drug test reflected an abandonment of the

"supervisor's checklist" standard for drug testing, i.e., requiring at least one of the four enumerated circumstances to trigger a test. Respondent counters that it in fact adhered to the fourth prong of the checklist, in that Watson ordered Drewery's test based on his conclusion that his accident was "inexplicable."

40

There is no question that employee drug testing is a mandatory term and condition of employment that must be bargained . See Tocco, Inc., 323 NLRB 480 (1997), overruled on other grounds by Anheuser-Busch, Inc., 351 NLRB 644 (2007); Sivells, Inc., 307 NLRB 986 (1992); Seiler Tank Truck Service, 307 NLRB 1090, 1100 (1992); Mistletoe Express Service, 300 NLRB 45 942 (1990); Johnson-Bateman Co., 295 NLRB 180 (1989). Based on the record evidence, however, I do not find that Respondent in fact altered its drug testing standard in Drewery's case.

11

JD(SF)-01-26 As a preliminary matter, I credit Watson's straightforward explanation that he felt compelled to rule out the possibility that drugs or alcohol played a role in Drewery's accident. Indeed, his rationale—that there was no obvious, logical explanation as to why an experienced process operator would have stepped in a large condensate puddle he admittedly knew of—comports 5 with Respondent's policy regarding "inexplicable" incidents.

Moreover, the Acting General Counsel failed to offer evidence that, prior to September 28, 2024, accidents similar to Drewery's were in fact considered "explicable" under that policy. In the absence of such evidence, finding a violation would essentially amount to my second 10 guessing Watson's judgment in that regard. This I decline to do. See Ryder Distribution Resources, 311 NLRB 814, 816-817 (1993); see also Sam's Club, 349 NLRB 1007, 1009 fn. 10 (2007) ("'[A]s we have so often said: management is for management. Neither the Board nor Court can second-guess it or give it gentle guidance by over-the-shoulder supervision'") (quoting NLRB v. Columbus Marble Works, 233 F.2d 406, 413 (5th Cir. 1956)); FPC Advertising

15 Inc., 231 NLRB 1135, 1136 (1977) (employer's business conduct is not to be judged by any other standard other than which it has set for itself).

Rather than provide evidence of a past practice regarding application of the "inexplicable"

prong of Respondent's drug testing standard, the Acting General Counsel instead asserts that a 20 violation should lie based on criticism of Watson's decision by lower-level supervisors after Drewery's test came back negative. It does appear that some of them considered Watson's decision to be "bullshit"—or at least told Drewery that they did; Rose even offered that Drewery was simply made an example of based on an apparent recent spike in safety incidents. Such musings ring of platitudes designed to placate Drewery rather than admissions that his accident 25 did not in fact merit a drug test as an "inexplicable" incident. In any event, they do not substitute for evidence of a past practice changed by the circumstances of Drewery's test. Accordingly, I recommend that the allegation that Respondent unilaterally revised its drug testing standards in violation of 8(a)(5) be dismissed.

30

3. Floating holidays a. Facts

35 The Acting General Counsel alleges that Respondent unilaterally changed its floating holiday policy by prohibiting employees from scheduling a floating holiday on a regularly scheduled day off.

(i) The holiday floater benefit

40

By way of background, Respondent recognizes a number of holidays (i.e., July 4, Thanksgiving, Christmas); for at least twenty years, bargaining unit employees have also been permitted to designate a number of additional holidays as "floating holidays" (also known as

"holiday floaters"). (Tr. 48-49.) This benefit is spelled out in each of the three collective 45 bargaining agreements as follows:

12

JD(SF)-01-26 Each employee may select (2) additional holidays at his/her option, provided the employee is on the payroll prior to July 1^st. If the Employee is on payroll July 1^stor later, they are only eligible for one (1) optional holiday of the applicable year.

5

(GC Exh. 2 at 18; GC Exh. 3 at 16; GC Exh. 4 at 26). The number of floating holidays was increased to three in 2003. (Tr. 48.)

Nothing in the parties' collective bargaining agreements expressly prohibits an employee 10 from designating an already scheduled day off as a holiday floater. This is significant because doing so permits an employee working a "4/10" schedule (i.e., a four-day work week of 10 hour days) to earn double-time on his next overtime shift. As current employee Robert Gonzales explained, "if you were going to run into your 14^thday on a weekend and you needed to work overtime for some reason," designating a non-workday as a holiday floater would mean "you 15 would get your double time on Sunday." (Tr. 865.)

(ii) Respondent issues EIB 03-09, addressing the unscheduled workday/holiday floater scenario.

20 There appears to have been some 'buyer's remorse' on Respondent's behalf with respect to this arrangement. In May 2003 (the same year the number of holiday floaters was increased to three), Respondent's Human Resources Department issued Employee Information Bulletin 03- 09 (EIB 03-09) advising that holiday floater requests were subject to approval by an employee's supervisor and that "[a]ll employees should schedule their floating holiday on a regularly 25 scheduled workday." (GC Exh. 6; Tr. 57.)⁸

In March 2017, Brooks engaged with Fields' predecessor Greg Ford (Ford) regarding the application of the holiday floater benefit. Taking the position that holiday floaters were only available to "rotating shift employees," Ford forwarded Brooks a copy of EIB 03-09 in apparent 30 support of this position. Brooks objected, demanding that Respondent waive the deadline for the Union to file a grievance on the subject. In response, Ford informed him:

That ship has sailed already. This practice has been in place since

2003 per the attached EIB to "All Employees". This memo was

35 issued to you and other members of the USW leadership for which

all were very much aware. I am willing to discuss the issue with

my management, however, I can't provide the union any guarantee

on the timeliness issue for this particular case. Willing to discuss further after I discuss with my management. Thanks…

13

JD(SF)-01-26 (R. Exh. 2; Tr. 204-207.) There is no evidence, however, that the Union in fact filed any grievance regarding the issuance of EIB 03-09, or any other aspect of the holiday floater policy, until 2021.

5

(iii) The historical practice prior to 2021 Fields testified that, consistent with EIB 03-09, Respondent has a policy of permitting employees to designate only scheduled workdays as holiday floaters. However, it appears that, 10 between October 1, 2013 and June 30, 2020, on at least 20 occasions, employees in fact successfully scheduled a holiday floater on their regularly scheduled day off.⁹Respondent admits to ten of these occasions but avers that, considering the size of the mechanical bargaining unit, instances of employees successfully contravening EIB 03-09's directive were "clearly inadvertent outliers." (Tr. 69, 665, 864-865; R. Exh. 4; R. Br. at 13, fn. 2 & 15.)

15

The record evidence reveals that, of the 165 holiday floater designations during the period in question, approximately 12% of them were designated on a scheduled day off. These raw numbers, however, shed little light of whether these cases were actually "outliers," since there is not evidence disclosing how many times employees requested but were denied such a request.

20 Only this denominator would inform what percentage of the time employees successfully acted in contravention of EIB 03-09.

(iv) Respondent denies McFatridge's request for a non-workday holiday floater.

25 In late September 2021, Brian McFatridge (McFatridge) requested a holiday floater for Friday, October 1, 2021. At the time, Friday was his regularly scheduled day off. McFatridge was scheduled to work overtime the following weekend and scheduling the floating holiday on the Friday in question would have entitled him to double-time pay on October 3. McFatridge's request was denied by supervisor John Patton (Patton).¹⁰

30

Brooks intervened on McFatridge's behalf. He spoke with Fields, who told him that the company's interpretation of the contractual language was that scheduling a floating holiday on a regularly scheduled day off was not permitted. Fields then sent Brooks a copy of EIB 03-09. (Tr. 53, 56, 58, 308-311, 314.)

35

14

JD(SF)-01-26 b. Analysis As a preliminary matter, Respondent's issuance of EIB 03-09, curtailed the broad holiday 5 floater benefits contained in the parties' collective-bargaining agreements. The Board has found such conduct to violate Section 8(a)(5) of the Act, holding that, once an employer negotiates a collective bargaining agreement granting employees discretion to schedule vacation days, it may not claw back that discretion by issuing a policy directive requiring management approval for employees' requests and setting limits on eligible vacation days. See Alwin Mfg. Co., 314 NLRB 10 564 (1994), enfd. 78 F.3d 1159 (7th Cir. 1996).

However, the Acting General Counsel does not allege the 2003 issuance of EIB 03-09 (or its subsequent maintenance as a policy) as unlawful. Rather, the complaint alleges that, notwithstanding the wording of EIB 03-09, Respondent in fact maintained a policy whereby 15 "employees could select a date on a scheduled or non-scheduled work day to be a Floating Holiday" and that the 2021 denial of McFatridge's request violated § 8(a)(5) as a departure from that past practice. (Compl. ¶ 11(a).) Due process constrains me to hold the Acting General Counsel to his theory. Lamar Advertising of Hartford, 343 NLRB 261, 265-266 (2004) (citing 5 U.S.C. § 554(b)).

20

An employer's practice will be considered a term and condition of employment that may not be changed without notice and bargaining if it occurs with such regularity and frequency that employees could reasonably expect the practice to occur on a consistent basis. See Wendt Corp.,

372 NLRB No. 135, slip op. at 9 (2023). The party asserting the practice bears the burden of 25 proof. Consolidated Communications Holdings, Inc., 366 NLRB No. 152, slip op. at 3 (2018) (citing Garden Grove Hosp. & Med. Cntr., 357 NLRB 653, 653 fn. 4, 5 (2011)). I find that the Acting General Counsel has failed to prove that, prior to October 2021, Respondent had a longstanding regular and consistent (i.e., nonintermittent) past practice of 30 permitting employees to schedule holiday floaters on non-work days. At best, the record discloses twenty instances of such an occurrence over a multiple-year period, averaging one such occurrence every four months. Moreover, I note that half of these occurrences involved one of two employees,¹¹suggesting to me that, at most, one or more individual supervisors were failing to follow EIB 03-09. Finally, there is no evidence as to how many requests for a non-work day 35 holiday floater were—like McFatridge's—denied.

The Acting General Counsel has thus failed to establish that, despite Respondent's written policy, employees were regularly permitted to designate non-work days as holiday floaters such that unit employees would reasonably expect such requests to be granted. Accordingly, the 40 denial of McFatridge's holiday floater request was not a change to an established past practice mandating bargaining, and I recommend that the allegation that Respondent unilaterally changed its holiday floater policy in violation of § 8(a)(5) be dismissed.

15

JD(SF)-01-26 B. The Alleged Coercive Statements The complaint's independent 8(a)(1) allegations are based on incidents in August 2022 5 during which two supervisors admonished union officials that they were not to conduct union business during work time. The Acting General Counsel asserts that each of these statements constituted "threats, coercion and restraint of Union officials" in violation of Section 8(a)(1) of the Act. I agree that Respondent violated the Act as alleged.

10 1. Facts

As noted, Union President Brooks works at the Baytown refinery's scale house, which contains equipment used to weigh trucks entering and exiting the facility. On occasion, trucks are backed up waiting to enter the scale house, which causes delays and expense in the Baytown 15 facility's operations. According to Brooks' unrebutted testimony, the area between the scale house and the road where backups occur is under video surveillance. (Tr. 43-44, 894-896.) On August 22, 2022, Brooks (who had just returned from leave) was at his post when he was approached by Union Vice-President Michael Loy (Loy), who had been handling bargaining unit 20 employees' grievances in Brooks' absence. According to Loy, he went to check in with Brooks and see if there was any additional assistance he needed. They conversed for approximately 5- 10 minutes; at one point during their discussion, Brooks' supervisor, Wendell Stanley (Stanley) entered the scale house and briefly greeted the two men. By his own admission, Stanley overheard Brooks and Loy "talking about grievances." (Tr. 273, 330-333; 521-523, 540-541.)

25

Respondent claims that Stanley also observed a "large backlog of trucks leading into the scales building…waiting for Brooks' attention." (R. Br. at 4, 29.) This contention is rather dubious, however. Indeed, despite being asked a barrage of leading questions by Respondent's counsel, Stanley himself failed to support this claim in a credible manner. At best, he testified 30 that he had—at some unspecified time—seen a backlog of trucks at the scales (Tr. 509); that he was not sure if such a backlog had occurred in August 2022 (Tr. 510); and that on an unspecified date in August 2022, he spoke with Brooks about backlogs and "working efficiently." (Tr. 515.)¹²Casting even more doubt on this version of events, despite Brooks' unrebutted testimony that any back up would have been captured by Respondent's surveillance cameras, Respondent 35 failed to introduce video evidence of a backup on the day in question. The following day, Loy's own supervisor, Charles Whitaker (Whitaker), entered Loy's office, closed the door, and asked, "as a favor to me, can you not go to the scale house whenever Brooks is working?" He then stated that there were reports of Brooks having frequent visitors at 40 the scale house, and that he understood that Loy needed to talk to Brooks on a day-to-day basis but that he was not to speak to him physically at the scale house. He clarified that Loy was

16

JD(SF)-01-26 permitted to call Brooks or meet him somewhere else at the facility, and that he did not care how long the two men conversed but closed with the repeat admonition: "[j]ust please, as a favor to me, don't go to the scales while [Brooks is] working." (Tr. 333-337.)

5 A day later (on August 24) a disciplinary meeting was held regarding Brooks on an unrelated matter. The meeting was led by Stanley; Loy served as Brooks' steward , and First Line Supervisor Chad Baker attended as a witness for the company. After discussion of the disciplinary issue, Stanley said he needed to address another topic. He then told Brooks, "you can't have visitors at the scale house. I'm getting reports that you've had visitors at the scale 10 house. You can't be conducting Union business on the clock." (Tr. 340-341.)¹³Three weeks later, Stanley was asked by Respondent's internal human resources investigator to explain his statement to Brooks. He responded that that Brooks had been "holding Union meetings in [his] work area on work time with employees from other areas" and further that "the other day someone was [at his work area] for 1.5 hours discussing grievances." (GC Exhs. 20, 22.)

15

At hearing, witnesses testified consistently that Respondent maintains no rule, policy, or past practice that broadly prohibits all non-work conversations among employees. Indeed, as Stanley testified, discussion of non-work topics is permitted , "[a]s long as we are working efficiently and it maintains within our ethics and our company policies…" Brooks also offered unrebutted 20 testimony that routine, casual non-work exchanges with coworkers—such as congratulating someone on a child's graduation or wishing them happy birthday—were a common occurrence at the scale house. (Tr. 146, 279, 426, 518.)

2. Analysis

25

"In determining if [an employer's] statements constitute interference, restraint, or coercion, the Board applies the objective standard of whether the remark would reasonably tend to interfere with the free exercise of employee rights, and does not look at the motivation behind the remark, or on the success or failure of such coercion." Dorsey Trailers, Inc., 327 NLRB 835, 30 851 (1999) (citations omitted), enfd. in pertinent part 233 F.3d 831, 838-839 (2000). I find that the statements attributed to Whitaker and Stanley would reasonably tend to interfere with the free exercise of employee rights under Section 7 of the Act.

The filing of grievances unquestionably is protected concerted activity. NLRB v. City

35 Disposal Systems, 465 U.S. 822, 836 (1984); see also Roadmaster Corp., 288 NLRB 1195, 1197 (1988), enfd. 874 F.2d 448 (7th Cir. 1989). Grievance-related activity conducted prior to the actual grievance filing is likewise protected concerted activity. Such activity may include investigating whether a grievance should be filed, assisting employees in writing up a grievance, and pre-filing handling of complaints. Consumers Power Co., 245 NLRB 183, 187 (1979) 40 (steward unlawfully disciplined for using company time to informally investigate a disagreement which had not yet become a formal grievance).

17

JD(SF)-01-26 Union officials such as Brooks and Loy obviously play an integral role in filing and processing grievances on behalf of other employees. The Act, however, requires a balance between an employer's business interests and the rights of union officials to engage in protected 5 activities, and the Board will weigh the employer's justification for restricting union activities against the potential interference with employees' Section 7 rights. Restrictions that disproportionately chill union activity or lack a legitimate business justification may constitute unfair labor practices. Consolidated Diesel Co. v. NLRB, 263 F.3d 345, 352 (4th Cir. 2001) (citations omitted). Thus, an employer violates the Act by arbitrarily and without justification 10 curtailing its practice of allowing grievance writing during working hours. Mead Corp. v. NLRB,

697 F.2d 1013, 1025-1026 (11th Cir. 1983). Likewise, arbitrary rules that interfere with union officials' ability to process grievances—such as requiring grievances to be written in unsuitable locations—violate Section 8(a)(1). Id.; Caterpillar Tractor Co. v. NLRB, 638 F.2d 140, 141 (9th Cir. 1981). Finally, an employer that issues threats to discourage grievance filing engages in 15 unlawful coercion in violation of Section 8(a)(1). Mead, supra at 1024, 1025-1026 (unlawful to tell union steward, "you are going to have to stop filing these grievances because these people can really make it hard for you").

In the instant case, Respondent argues that its managers were justified in curtailing Brooks 20 and Loy's grievance-processing activities because they were unreasonably interfering with operations at the scale house. The glaring problem with Respondent's position is that—despite having cameras installed at the relevant location—it failed to provide any credible evidence of the extensive backlog of trucks that supposedly threatened productivity on the day in question. Thus, the record discloses that Whitaker, without justification, forbade Loy from meeting with

25 Brooks in person during work time (i.e., when he was posted to the scale house) to discuss grievance handling. Pursuant to the above-cited authority, this constituted an arbitrary rule requiring Loy and Brooks to conduct their grievance processing either by phone or away from Brooks' work area. Likewise, in the highly coercive context of a disciplinary meeting, Stanley categorically forbade Brooks for conducting Union business "on the clock." Each of these 30 comments, in the absence of a proven business justification, directly interfered with the two union officials' Section 7 right to process grievances pursuant to the parties' collective bargaining agreement.

Accordingly, by forbidding Loy from meeting with Brooks in person during work time 35 regarding grievance filing, and by forbidding Brooks from conducting Union business "on the clock," Respondent violated Section 8(a)(1) of the Act.

C. The Information Request Allegations

40 Between October 6, 2021, and March 7, 2023, Brooks made 42 written information requests to Respondent. Of these, the record establishes that Respondent failed to respond to 38 requests and delayed in responding to 4 of them. What follows is a summary of the requests. Because Board law treats requests for information regarding terms and conditions of bargaining unit employees differently from other types of information requests, the requests are delineated by 45 these categories.

18

JD(SF)-01-26

1. Facts Primary responsibility for marshalling Respondent's responses to the Union's information requests—as well as for interacting with Brooks—fell upon Labor Relations Advisor Fields.

5 Fields began his career with Respondent in 1999 as a trainee and was promoted in January 2009 to a first line supervisory position, a role he held until October 1, 2021, when he transitioned to become the Labor Relations Advisor role. At hearing, Fields readily admitted that his inexperience was at least partly to blame for Respondent's failure to respond to the Union's information requests, agreeing that he faced a "learning curve" in the new position. He also 10 conceded that on occasion, various departments and individuals within the company did not respond to his efforts to gather information internally to provide to the Union. On these occasions, he testified, he actually enlisted the assistance of the Union by asking its Office Manager Pam Ayala to send him an "updated outstanding request" so that he could follow up with company officials. This was not always successful, however; he admitted that, on occasion, 15 the individual in question simply never got back to him, resulting in him not providing relevant information. (Tr. 639-641, 654, 715-716.)

a. Requests seeking information regarding unit employees

20 Thirty-eight of the Union's requests sought information regarding bargaining unit employees. Of those, the record establishes that Respondent failed to respond to 34 of them, as summarized below:

19

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20

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21

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14 The struck information was, pursuant to the parties' stipulation, provided by Respondent on May 25, 2022. See Jt. Exh. 2 at ¶ 4. It is therefore included in the recitation of allegations of delayed provision of information below.

22

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23

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24

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25

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26

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27

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28

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29

JD(SF)-01-26

Respondent, it is alleged, failed to provide the information requested in all but 4 of the

requests for bargaining unit employee information: those set forth in complaint paragraphs 9(h),

9(m), 9(p)(i)¹⁵and 9(z). With respect to those, Respondent provided responsive information,

30

JD(SF)-01-26 albeit only after the respective period of delay indicated in brackets below. See Jt. Exh. 1 at 17, 49-52; Jt. Exh. 2.

31

JD(SF)-01-26

b. The requests for information regarding non-bargaining unit employees

As noted, four of the information requests sought information related to non-bargaining unit

5 employees. Three of those concerned individuals known as pollution safety advisors (known as

PSAs) and dockworkers. PSAs are responsible for oversight of pollution and safety concerns,

while dockwalkers are tasked with walking the docks in connection with barge movements,

monitoring temperatures, checking levels, and confirming the sealing of barges before departure.

Each of these positions, at the time the requests were made, was performed by a non-bargaining

10 unit, non-Exxon Mobil employee.

Brooks testified that he made the requests for information regarding the terms and conditions

of employment of PSAs and dockwalkers after learning that Respondent planned to transfer their

work to bargaining unit employees. As he explained, the requests were driven by the union's

15 interest in understanding the scope and history of the new roles bargaining unit employees were

to be assigned. (Tr. 157-159.) Those requests were as follows:

Complaint Information requested Jt. Exh. 1

9(s) On December 9, 2021, the Charging Party, through Union President 36-37 Ricky Brooks, sent an email to Labor Relatives Advisor Patrick Fields, wherein he requested the following information, which included an information request dated November 13, 2021: i. November 13, 2021 Request: 1. Provide the contract between ExxonMobil and SeaRiver for that of the work performed by the contractor whom [sic] performs PSA work/activities. This request is for the entire agreement. If a confidentiality agreement is required, please submit the company's proposed confidentiality agreement for the Union to review; 2. Provide a complete list if not included in the contract information requested of the PSA's job duties and responsibilities and qualifications and or credentials to fulfill this role; 3. Provide the date in which PSA's became part and or active at the Baytown Docks; 4. Provide in detail the proposed training the company communicated to the Docks employees at a SWPT meeting on 11/12/2021 in which the company claims will qualify the Dockmen to take over the PSA roles and responsibilities; 5. Provide in its entirety DOK 240; 6. Provide the date in which the company began discussing the midterm change to have USW-

16 Further to footnote 12 above, the struck information was not provided by Respondent.

32

JD(SF)-01-26

33

JD(SF)-01-26

Brooks also made a multi-item request for information related to an expansion project known

as "BCEP" that involved Respondent bringing in workers from outside of the Baytown complex

to perform bargaining unit work. Brooks made the request after learning from unit members that

5 employees from another Exxon Mobile facility were working at the Baytown facility. Prior to

making the request, he engaging Fields in a lengthy back-and-forth email exchange in which he

accused Respondent of unilaterally assigning bargaining unit work to non-unit employees; at

various points in the exchange, Fields admitted that this was, in fact, occurring. (Jt. Exh. 3 at 1-

36.) As Brooks explained at hearing, he then sent the information request in order to determine

10 whether these individuals were "working under our contract, our rules, or were they under

somebody else's rules…" (Tr. 164-165.)

The request read as follows:

34

JD(SF)-01-26 9(uu) On March 7, 2023, the Charging Party, through Union President 102 Ricky Brooks, by email sent an information request to Labor Advisor Patrick Fields, wherein he requested the following: i. When did BRPP ees arrive in Baytown? ii. What are the names of BRPP employees? iii. What are the pay rates of BRPP employees? iv. Are there any wage employees from other sites planned to come to Baytown to do bargaining unit work; if so, provide names, locations and pay rates for them. v. Date the BCEP project started the 14-2 schedule and a list of all USW represented employees and other wage employees who are assigned to this schedule; this is for ISBL and OSBL; vi. Provide what teams 1 and 2 or 3 and 4, the folks on this 14-2 schedule, will be following for purposes of calculating overtime and WP days; vii. Provide any and all changes from this 14-2 schedule, including the date the schedule changed and for what individual(s) it was changed. This is for ISBL and OSBL. viii. All manpower sheets for the BCEP project for all positions/posts/ assignments from the beginning of the project until the receipt of the info request; for ISBL and OSBL; ix. Each USW represented employee's schedule at BCEP, to include the chart they are assigned to the schedule 14-2, 4-4, 4 10 hour shifts days only 5-8 etc …; x. Any and all shift/chart changes Team 1 to Team 3, mechanical days to nights, etc, including the date the change was made and the name of the USW employees whose shift/chart changed; xi. A complete list of all ExxonMobil wage employees doing/assigned USW represented work at BCEP that are from other sites, states, countries, to include the employees' name, the date they arrived and began work at BCEP, the site/state/country they came from, the hourly wage rate and if applicable the CBA or wage agreement at their normal work site.

2. The volume and redundancy of the requests At hearing, Respondent failed to adduce evidence that it had, in fact, timely responded to the 5 requests. Rather, it contends that it was not obligated to do so because each of the requests was made in bad faith in order to "harass the Company and to justify the Union's refusal to meet on grievances." According to Respondent, this strategy involved making requests that "in many cases. . .seek an unnecessary, voluminous amount of information." (R. Br. at 34.)

10 In support of this defense, Respondent relies chiefly on the testimony of Fields, who testified regarding the burdensome volume and repetitive nature of the Union's information requests at Baytown compared to other similar facilities operated by Respondent. According to Respondent, Brooks filed more than twice as many grievances and three times as many information requests as its "three other largest refineries combined." (R. Br. at 34-35.) In total, Fields estimated that

15 Brooks filed close to 300 grievances within a 2½ year period, about 90% of which were accompanied by information requests. Brooks did not dispute the high volume of requests,

35

JD(SF)-01-26 admitting that he regularly files over 100 grievances per year, most of which are accompanied by an information request. (Tr. 280, 640-643; 647-648.)

Fields further testified that Brooks' information requests often included multiple, near- 5 identical requests received regarding topics such as drug testing, vacation policy and vehicle tracking (called "Geotab"). He testified that he received redundant requests regarding the Geotab system and vacation policy issues, at times seeking the same information within a few weeks or even a month and a half of each other. Such requests, he testified, caused extensive additional work, made it difficult to respond in a timely manner and made it difficult to respond 10 to other, relevant, non-repetitive requests. (Tr. 649-654.) Of the information requests alleged in the complaint, however, none sought information regarding drug testing or any form of vehicle tracking, including Geotab, nor did Respondent introduce any such information requests into evidence.

15 With respect to vacation pay, the record evidence shows that Brooks did request, in December 2021, that Respondent provide policies and procedures how Respondent handled vacation requests by contractor employees versus bargaining unit members. A year later, in December 2022, he requested that Respondent "provide the overtime and vacation guidelines for each Process area and Mechanical area and Labs." Fields testified about two other allegedly 20 redundant requests for vacation pay information in the context of the parties' collective bargaining but Respondent offered no documentary evidence of these requests. (Jt. Exh. 1 at 32, 100; Tr. 650-651.)

Despite Respondent's insistence that each of the information requests at issue was unduly 25 burdensome, excusing it from responding, my review of the record uncovered only a single instance in which Fields (or any other Exxon Mobil representative) explicitly informed the Union that the company considered an information request to be overly broad and/or unduly burdensome. On March 3, 2022, in response to a request for definitions and examples related to performance assessments, Fields stated:

30

As to your numerous requests for definitions and examples, the Company objects to these requests because they request information that is not relevant, the requests are overbroad and unduly burdensome. In addition, the assessment criteria are self- 35 explanatory, and the information that you requested is determined by supervisors on a case-by-case basis and cannot be defined in this response.

(Jt. Exh. 1 at 17.) However, there is no evidence that he made a timely offer to cooperate with 40 the Union to reach such an accommodation.

On another occasion, Fields articulated objections to a multi-item information request regarding an employer proposal for a "operator care competition," stating:

45 [W]hen I get the requested info, I send it. You have very robust info request that requires a lot of time from various people so when

36

JD(SF)-01-26 they can gather it, get it to me, I will forward it. Some of the answers to these the [sic] questions below you already have the answers to.

5 (Jt. Exh. 1 at 84.) These responses demonstrate that, despite being newly appointed to the Labor Advisor position, Fields was entirely capable of enunciating objections to what Respondent perceived to be improper information requests.

3. The legal standards

10

a. The duty to provide information Pursuant to Section 8(a)(5) of the Act, each party to a bargaining relationship is required to bargain in good faith, including furnishing relevant information upon request. NLRB v. Acme

15 Industrial Co., 385 U.S. 432 (1967). The employer's duty to provide relevant information exists because without the information, the union is unable to perform its statutory duties as the employees' bargaining agent. Following an appropriate request, and limited only by considerations of relevancy, the obligation arises from the operation of the Act itself. Ellsworth Sheet Metal, 224 NLRB 1506 (1976). As such, "'[t]he refusal of an employer to provide a 20 bargaining agent with information relevant to the Union's task of representing its constituency is a per se violation of the Act' without regard to the employer's subjective good or bad faith." Piggly Wiggly Midwest, LLC, 357 NLRB 2344, 2355 (2012) (citing Brooklyn Union Gas Co., 220 NLRB 189, 191 (1975); Procter & Gamble Mfg. Co., 237 NLRB 747, 751 (1978), enfd. 603 F.2d 1310 (8th Cir. 1979)).

25

b. The relevance standard

"A union's bare assertion that it needs information ... does not automatically oblige the employer to supply all the information in the manner requested." Detroit Edison, 440 U.S. 301, 30 314 (1979). Instead, "[t]he union's need and the employer's duty depend, in all cases, on the 'probability that the desired information [is] relevant, and that it [will] be of use to the union in carrying out its statutory duties and responsibilities.'" N.Y. & Presbyterian Hosp. v. NLRB, 649 F.3d 723, 729-730 (D.C. Cir. 2011) (quoting Oil, Chem. & Atomic Workers, 711 F.2d 348, 359 (D.C. Cir. 1983)). The requisite showing of relevance depends on whether the union is 35 requesting information about employees who are part of the bargaining unit or outside it. "For information about employees in the bargaining unit, it is presumed that the requested information is relevant ..., and the employer must provide the information unless it can show the information is irrelevant." U.S. Testing Co. v. NLRB, 160 F.3d 14, 19 (D.C. Cir. 1998).

40 However, where the requested information does not pertain to unit employees, it is not presumptively relevant, and its relevance must be established. As the Board has explained:

To demonstrate relevance of nonunit information, the Acting

General Counsel must show that either: (1) the union demonstrated 45 the relevance of the nonunit information; or (2) the relevance of the information should have been apparent to the employer under the

37

JD(SF)-01-26 circumstances. Disneyland Park, 350 NLRB 1256, 1258 (2007) (citing Allison Co., 330 NLRB 1363, 1367 fn. 23 (2000)); Brazos Electric Power Cooperative, Inc., 241 NLRB 1016, 1018-1019 (1979), enfd. in relevant part 615 F.2d 1100 (5th Cir. 5 1980). The Union cannot simply rely on generalized conclusory explanations, hypothetical theories, or ""mere suspicion." Disneyland Park, 350 NLRB at 1258 fn. 5; Sheraton Hartford Hotel, 289 NLRB 463, 463-464 (1985). The burden of establishing relevance for nonunit information, however, is not "an 10 exceptionally heavy one." A-1 Door & Building Solutions, 356 NLRB 499, 500 (2011). Rather, the Board uses a "liberal discovery-type standard." Acme Industrial Co., supra, 385 U.S. at 437 & fn. 6. Thus, under this standard, all that is required is a showing of a "probability that the desired information was relevant, 15 and that it would be of use to the union in carrying out its statutory duties and responsibilities." Id. at 437; see also United States Testing Co., 324 NLRB 854, 859 (1997), enfd. 160 F.3d 14 (D.C. Cir. 1998); Shoppers Food Warehouse Corp., 315 NLRB 258, 259 (1994). Additionally, under longstanding Board precedent, a union 20 is not obligated to disclose to the employer the facts supporting its claim of relevance at the time the information is requested. See, e.g., Cannelton Industries, 339 NLRB 996, 997 (2003); Brazos Electric Power, 241 NLRB at 1018-1019. "Rather, it is sufficient that the Acting General Counsel demonstrate at the hearing that the 25 union had, at the relevant time, a reasonable belief." Cannelton Industries, 339 NLRB at 997 (citing Knappton Maritime Corp., 292 NLRB 236, 238-239 (1988)).

Centurytel of Montana, Inc., 373 NLRB No. 128, slip op. at 4 (2024).

30

c. The unreasonably delay standard Absent evidence of justification, an unreasonable delay in furnishing relevant information is as much a violation of Section 8(a) (5) of the Act as a refusal to furnish the information at 35 all. PAE Aviation and Technical Services, LLC, 366 NLRB No. 95, slip op. at 3 (2018). It is an employer's duty to furnish relevant information as promptly as possible, given the circumstances, as a union is entitled to the information at the time the information request is made. Id. In determining whether a party has failed to produce information in a timely manner:

40 the Board considers a variety of factors, including the nature of the information sought (including whether the requested information is

time sensitive); the difficulty in obtaining it (including the

complexity and extent of the requested information); the amount of

time the party takes to provide it; the reasons for the delay in

45 providing it; and whether the party contemporaneously

communicates these reasons to the requesting party.

38

JD(SF)-01-26 General Drivers, Warehousemen & Helpers Local Union No. 89, 365 NLRB 1605, 1606 (2017). Although no per se rule exists to say what constitutes an unreasonable delay, the Board has 5 found delays from two to seven weeks to be unreasonable. See Capitol Steel & Iron Co., 317 NLRB 809 (1995) (two weeks unreasonable), enfd. 89 F.3d 692 (10th Cir. 1996); Aeolian Corp.,

247 NLRB 1231, 1245 (1980) (three weeks unreasonable); Postal Service, 308 NLRB 547, 551 (1992) (four weeks unreasonable); Postal Service, 332 NLRB 635, 640 (2000) (five weeks unreasonable); Linwood Care Center, 367 NLRB No. 14, slip op. at 5 (2018) (six weeks 10 unreasonable); Woodland Clinic, 331 NLRB 735, 737 (2000) (seven weeks unreasonable). D. The bad-faith and related defenses

An employer charged with failing to provide requested information to a union may raise an 15 affirmative defense that the union's request was made in bad faith, and Board law is settled that, if the only reason a union requests information is harassment, an employer is not required to comply with the request. Island Creek Coal Co., 292 NLRB 480, 489 (1989), enfd. mem. 899 F.2d 1222 (6th Cir. 1990). However, where a union's information request is made for at least one proper and legitimate purpose, the good faith of the request is established. Id.; see also

20 Mission Foods, 345 NLRB 788, 788 (2005); Ormet Aluminum Mill Products, 335 NLRB 788, 805 (2001); Hawkins Construction Co., 285 NLRB 1313, 1314 (1987), enf. denied on other grounds 857 F.2d 1224 (8th Cir. 1988).

Even absent a union's bad faith, an employer does not commit an unfair labor practice by 25 failing to produce material which is cumulative of information already produced . International Paper Co. v. NLRB, 115 F.3d 1045 (D.C. Cir. 1997). Moreover, where an employer maintains that a request for information is unduly burdensome or overbroad, it must articulate those concerns to the union and make a timely offer to cooperate with the union to reach a mutually acceptable accommodation. UPS, 362 NLRB at 162; Mission Foods, 345 NLRB at 789.

30 Correspondingly, where an employer fulfills those obligations, the union may not ignore the employer's concerns or refuse to discuss a possible accommodation, even when the requested information is presumptively relevant. Emeryville Research Center v. NLRB, 441 F.2d 880, 885 (9th Cir. 1971); American Cyanamid, 129 NLRB at 684.

35 3. Analysis

a. The information sought was relevant.

The Acting General Counsel established the relevance of the information sought by Brooks.

40 As noted, the vast majority of the requests sought information regarding terms of conditions of bargaining unit employees and was therefore presumptively relevant. Moreover, the remaining requests sought to police the parties' collective bargaining agreements—in one case, to protect the scope of bargaining unit work and in the remaining three requests, to inform the Union's bargaining over the terms and conditions of employment that would apply to unit members being 45 assigned new positions. The relevance of such information was not only readily apparent from the face of the requests themselves, but it each case, Brooks' communications to Fields

39

JD(SF)-01-26 demonstrated the relevance of the nonunit information. See Centurytel of Montana, 373 NLRB No. 128.

b. Respondent's delay was unreasonable.

5

Assessed by the Board's standards, Fields' belated response to four of Brooks' requests were not reasonable. He took over two months to provide a copy of an employee's personnel file and over five months to provide a single voicemail recording. After Fields requested a year's worth of "manpower sheets" for a particular department, Respondent failed to respond for over six 10 months and only then responded after the Union filed an unfair labor practice charge over the request. After Fields notified the department that the NLRB was involved, he was forwarded the requested documents within 5 minutes and sent them to Brooks the following day. On an admittedly more complex request, Fields' single-page response took over 3 months. See Jt. Exh. 1 at 17, 49-52; Jt. Exh. 2.

15

On the whole, the evidence reflects that Respondent failed to make a diligent effort to obtain and promptly provide the requested information in a reasonably timely manner, which may be equated with a flat refusal. Shaw's Supermarkets, 339 NLRB 871, 875 (2003) (citing NLRB v. John C. Swift Co., 124 NLRB 394 (1959), enfd. in part and denied in part 277 F.2d 641 (7th Cir.

20 1960)).

c. Respondent's bad-faith and related defenses fail. I do not find merit to Respondent's claims that each of the information requests was made in 25 bad faith. In the Eighth Circuit case on which it relies, the union made repeated, voluminous requests for detailed information about every subcontract entered into by the employer, admittedly seeking "to overburden the employer with information requests so as to prevent the employer from subcontracting any work to nonunion workers" even though subcontracting was permitted under the parties' contract. See NLRB v. Wachter Constr., 23 F.3d at 1386-1387.

30 Even if the Eighth Circuit's standard for a bad-faith information request were controlling authority—which it is not—Respondent's reliance on it is misplaced, as there is no evidence demonstrating that Local 13-2001 used information requests in furtherance of an untoward goal. Rather, Respondent claims that Brooks conjured up requests on multiple and varied issues for the purpose of harassing the company, period. This position is both logically dubious and 35 unsupported by the record.

As a preliminary matter, Respondent's claim that Brooks flooded Fields with multiple redundant requests was not borne out by the record. In fact, the evidence was limited to Brooks having made two requests, over a year apart, regarding vacation pay issues. Also scant was 40 evidence of Brooks' requesting information the Union already possessed: on a single occasion, Fields alluded to this, noting that Brooks already had "some of the answers" to questions he posed about the operator care competition. These isolated occurrences certainly did not render Brooks' requests categorically improper.

45 Likewise, Respondent's emphasis on the sheer volume of requests also fell short of justifying its failure to provide requested information. Even relying on Brooks' admission that he likely

40

JD(SF)-01-26 filed over 100 grievances per year, the majority of which accompanied by an information request, this does not strike me as an especially high number of requests. As the exclusive bargaining representative of approximately 1,000 employees at the Baytown facility, the Union has a duty to represent them, including by staying appraised of myriad issues that affect their 5 work lives. It is therefore not surprising that Brooks' admittedly detailed requests sought information on a wide array of workplace terms and conditions (including discipline, pay practices, staffing, manpower, scheduling, leave, overtime, employee benefits, training, health and safety practices, and injury/incident investigations); information used to evaluate and process grievances (such as personnel files and performance evaluations); and information to inform and 10 support negotiations and/or police of the parties' contracts (including evaluating proposed outsourcing plans and changes to work rules and policies).

A similar case is informative on this issue. In West Penn Power Co., the employer claimed that the union's bad faith—evidenced by the fact that it made 82 information requests concerning 15 43 different subjects over a 19-month period—excused its failure to comply with certain of them. The Board, followed by the court of appeals, disagreed, with the latter stating:

A review of the list of the requests reveals that they sought

information on a broad range of legitimate subjects implicating the

20 Union's duty to represent its members. Specifically, the Union requested information on subjects including pension coverage, safety issues and accidents, employee evaluations, disciplinary issues, underground training, workers' compensation procedures, clothing issues, safety equipment costs, tool repair, and vacation 25 and sick pay. When considered in context, the number of requests over the particular time span (1999-2000) is hardly surprising. The Union represented 1200 members at over thirty locations in four states.

30 394 F.3d 233 (4th Cir. 2005). The same logic applies here: effective representation of a large number of employees necessarily involves staying abreast of the issues they face, justifying requests for information that might not be necessary for smaller units. See, e.g., Prudential Insurance Co. of America v. NLRB, 412 F.2d 77 (2d Cir. 1969) (citing Standard Oil Company of California v. NLRB, 399 F.2d 639 (1968)).

35

Nor am I persuaded that Brooks' requests were overly broad or unduly burdensome. As noted above, an employer flooded with overbroad or unduly burdensome requests may raise an objection and offer to discuss an accommodation, triggering a duty on the union's behalf to engage in such a discussion. Yet Fields failed to do so, with the partial exception of one request 40 (the March 3, 2022 request for definitions and examples related to performance assessments). As noted, on that occasion, he did express a concern as to overbreadth and burdensomeness. However, he failed to make a timely offer to cooperate with the Union to reach such an accommodation.

45 That Fields may have in fact been personally overwhelmed by the requests is also not dispositive. The fact is that, despite the size of the bargaining units—and correspondingly,

41

JD(SF)-01-26 Brooks's requests—Respondent assigned primary responsibility for responding to them to a newly minted Labor Advisor who struggled to gain cooperation from management in assembling responses. Indeed, Fields himself openly admitted that his own lack of inexperience, as well as his management colleagues' lack of cooperation, contributed to him being overwhelmed by

5 Brooks' requests to the point where he admittedly did not respond. Considering this, I do not find persuasive Respondent's claims that the Beaumont facility was barraged with a volume of requests that tripled the number received by its "three other largest refineries combined." (R. Br. at 34-35.) Setting aside what "other largest" denotes, there is nothing to indicate that this anecdotal disparity was not attributable to the size of those facilities and/or their level of labor- 10 management harmony as compared to the Baytown facility. More frankly, there is also no evidence that the information requests at those facilities were also handled by someone who, like Fields, was new to his position and did not receive full cooperation from his own company's personnel in fulfilling requests.

15 CONCLUSIONS OF LAW

1. Respondent, Exxon Mobil Corporation, has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 20 2. The Union, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union Local 13-2001 has been a labor organization within the meaning of Section 2(5) of the Act.

3. The following employees constitute an appropriate unit (the Chemical Company Unit) for 25 the purposes of collective bargaining within the meaning of Section 9(b) of the Act:

Production and maintenance employees employed in the Baytown Chemical Plant facilities; excluding all other employees, office employees, clerical employees, guards, professionals, and supervisors as defined in the Act.

30

4. The following employees constitute an appropriate unit (the Lab Unit) for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:

All technical employees employed at its Baytown Chemical Plant; excluding 35 professional employees, guards, watchmen, and supervisors, as defined by the Act.

5. The following employees constitute an appropriate unit (the Fuels & Lubricants Unit) for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:

40

Production and maintenance employees employed at its Baytown Refinery facilities; excluding all other employees, office employees, clerical employees, guards, professionals, and supervisors as defined in the Act.

42

JD(SF)-01-26

6. At all material times, Respondent has recognized the Union as the designated exclusive collective-bargaining representative of the Chemical Company Unit, Lab Unit and Fuels & Lubricant Unit employees.

5 7. By its unreasonable refusal to provide and/or delay in providing the necessary and relevant information requested by the Charging Party Union since about October 6, 2021, as set forth in paragraph 9 of the complaint in this case, as modified by the parties' stipulations set forth at Joint Exhibits 1 and 2, Respondent has violated Section 8(a) (5) and (1) of the Act.

10

8. By arbitrarily forbidding Union officials from conducting Union business "on the clock"

and by arbitrarily curtailing their ability to meet in person for the purpose of engaging in grievance-related activity, Respondent has violated Section 8(a)(1) of the Act. 15 9. These unfair labor practices found affect commerce within the meaning of Section 2(6) and (7) of the Act.

10. All other complaint allegations are dismissed.

20 REMEDY

Having found that Respondent has engaged in certain unfair labor practices, I shall recommend the Board to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.

25

Specifically, having found that Respondent violated Section 8(a)(5) and (1) by failing and refusing or delaying providing the Union with certain relevant information requested between October 6, 2021 to March 7, 2023, I recommend Respondent be ordered to provide the Union the information as specified in the recommended Order below. There were 42 requests for 30 information as identified herein.

Respondent shall also post an appropriate notice, as described in the attached Appendix. This notice shall be posted in Respondent's Baytown facility, wherever notices to employees are regularly posted, for 60 days, without anything covering the notice or defacing its contents. In 35 addition to the physical posting of paper notices, notices shall be distributed electronically, posted on an intranet or an internet site, and/or other using electronic means, to the extent Respondent customarily communicate with their employees in such a manner. In the event that, during the pendency of these proceedings, Respondent has gone out of business or closed its facility at Baytown, Texas, Respondent shall duplicate and mail, at its own expense, a copy of 40 the notice to all current employees and former employees employed by Respondent at any time since October 1, 2021.

The Acting General Counsel seeks the extraordinary remedy of requiring Respondent to maintain an information request log. Charging Party seeks additional extraordinary remedies, 45 including training of managers and supervisors and production of an information request log. In support, the Acting General Counsel cites to the instant complaint allegations and Charging Party

43