Shell Co.

National Labor Relations Board - Board Decisions

Mar 1, 1994

313 N.L.R.B. 133 (N.L.R.B. 1994)

133
313 NLRB No. 12
SHELL CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
The judge inadvertently stated that a May 17, 1991 letter (Jt. Exh.
30) was from Vazquez to Maldonado. The letter was from
Maldonado to Vazquez.
2 The complaint does not allege that the Respondent engaged in
surface bargaining. In adopting the judge’s 8(a)(5) and (1) findings,
we find it unnecessary to reach or consider the question whether the
Respondent’s bargaining posture was, as the judge found, ‘‘aimed at
inducing or forcing impasse so its contract goals could be imple-
mented as formulated.’’ For the same reason, we do not rely on the
judge’s finding that the Respondent’s bargaining posture was predi-
cated on its reading of Board cases rather than one designed to gain
union cooperation in bargaining.
3 The judge erroneously stated that this letter was dated March 22,
1991.
4 We also note that the Respondent, through its human resources
manager, Ana T. Battle, asked Union Negotiator Maldonado on Jan-
uary 19, 1991, to release the Respondent from its contractual com-
mitment to pay overtime to union stewards attending an arbitration
proceeding because ‘‘as we explained to you [previously] . . . we
cannot pay all of this amount of money to the stewards.’’ As the
judge found, the Respondent thereby gave to the Union yet another
indication that the Respondent, consistent with its previous economic
assertions, was claiming that it could not meet its present economic
obligations.
The judge inadvertently attributed the January 19, 1991 remarks
to the Respondent’s attorney, Tristan Reyes-Gilestra, rather than to
Battle. In adopting the judge’s crediting of Maldonado, we do not
rely on Reyes-Gilestra’s failure to explain the basis for the Respond-
ent’s request.
5 Chairman Stephens notes that he dissented in Nielsen because he
viewed the employer’s claims of economic hardship there as suffi-
cient to trigger a duty to furnish relevant economic information
under Truitt. He views the Respondent’s claims here as also suffi-
cient to trigger a Truitt obligation. Because he would find that a
Truitt obligation arises in both cases, he finds it unnecessary to con-
sider whether Nielsen and the instant case are factually distinguish-
able under the majority view in Nielsen.
The Shell Company (Puerto Rico) Limited and
International Association of Machinists and
Aerospace Workers, AFL–CIO. Cases 24–CA–
6335, 24–CA–6364, and 24–CA–6414
November 23, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 2, 1993, Administrative Law Judge Wal-
lace H. Nations issued the attached decision. The Re-
spondent filed exceptions, and the General Counsel
filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order.
The judge found, inter alia, that the Respondent vio-
lated Section 8(a)(5) and (1) by failing to furnish to
the Union requested financial information. We agree
with the judge that the Respondent’s economic claims
with respect to its Airport operation triggered a duty
to disclose relevant financial information under NLRB
v. Truitt Mfg. Co., 351 U.S. 149 (1956).
The credited evidence shows that in preparation for
bargaining on a successor contract the Respondent ef-
fectively pleaded that it was presently unable to pay.2
The Respondent expressly told Union Negotiator Juan
Maldonado that economic conditions had affected them
‘‘very badly, very seriously,’’ that present cir-
cumstances at its Airport operation were ‘‘bad’’ and a
matter of ‘‘survival’’ and, that ‘‘we are telling you all
of this because we need your help, your assistance, be-
cause of this condition.’’ In portraying to the Union its
present circumstances at the Airport, the Respondent
expressly referred to steps it already had taken to ad-
dress the threats to its survival, i.e., a hiring freeze of
all management and employee positions and an early
retirement plan, and stated that it was losing business,
that it had lost an important customer, and that it faced
serious regulatory and cost problems. Indeed, in a let-
ter to employees dated March 8, 1991,3 the Respond-
ent admitted that it had informed Maldonado that the
situation at the Airport was ‘‘critical’’ and a matter of
‘‘survival.’’ Although the Respondent referred to eco-
nomic disadvantages it had in relation to other com-
petitors, Maldonado’s credited testimony reveals that
the essential core of the Respondent’s bargaining pos-
ture as a whole, as expressed to the Union, was
grounded in assertions amounting to a claim that it
could not economically afford the most recent contract
at its Airport operation, that it was faced with a
present threat to that operation’s survival, and that,
therefore, it was at present unable to pay those terms
in the successor contract.4
In view of Maldonado’s credited testimony, we
agree with the judge that the Union was entitled to
verify the Respondent’s dire claims with respect to the
survival of its Airport operation. The Board’s decision
in Nielsen Lithographing Co., 305 NLRB 697 (1991),
petition denied sub nom. Graphic Communications
Local 508 v. NLRB, 977 F.2d 1168 (7th Cir. 1992), is
not to the contrary. In Nielsen, unlike here, the em-
ployer repeatedly stated that it was still making a prof-
it; the thrust of its economic assertions pertained to its
future economic competitiveness.5 Similarly, in
Burruss Transfer, 307 NLRB 226 (1992), the employ-
er’s claims were grounded in its claims of competitive
disadvantage, and it did not assert that it needed eco-
nomic concessions as a matter of survival. Further, in
Beverly Enterprises, 310 NLRB 222 (1993), the em-
ployer expressly stated that it was not going out of
business and essentially indicated that it simply was
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Chairman Stephens notes that he did not participate in Burruss
Transfer and Beverly Enterprises and he expresses no view as to
whether those cases were correctly decided or whether they are fac-
tually distinguishable from the instant case.
7 The Respondent notes that during negotiations it expressly dis-
claimed that it was pleading an inability to pay. Such a disclaimer,
however, is not dispositive. See Continental Winding Co., 305
NLRB 122, 133, 141 (1991).
We agree with the judge that the Respondent violated Sec. 8(a)(5)
and (1) by failing to furnish the comparative survey that it had pre-
pared. We note that A.M.F. Bowling Co., 303 NLRB 167 (1991),
cited by the judge, was denied enforcement on the basis that the
union did not actually ask the employer for the document at issue.
977 F.2d 141, 146–147 (4th Cir. 1992). That is not the case here.
1 All dates are in 1991 unless otherwise noted.
not as profitable as it once had been.6 And in Concrete
Pipe & Products Corp., 305 NLRB 152 (1991), the
employer’s claims were wholly derived from its stated
desire to be competitive and its claims as to ‘‘sur-
vival’’ did not refer to any imminent risk or immediate
economic peril.
As the Board majority noted in Nielsen, supra at
700.
Depending on the facts and circumstances of a
particular case, the evidence may establish that
the employer is asserting that the economic prob-
lems have led to an inability to pay or will do so
during the life of the contract being negotiated.
Because of the immediacy of the Respondent’s claims
here concerning the Airport’s present survival and
‘‘critical’’ condition, we find that the facts and cir-
cumstances warrant a finding that the Respondent
pleaded a present inability to pay.7
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Shell Company (Puer-
to Rico) Limited, San Juan, Puerto Rico, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Antonio F. Santos, Esq., for the General Counsel.
Tristan Reyes-Gilestra, Esq., of San Juan, Puerto Rico, for
the Respondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. On
May 22, 1991,1 International Association of Machinists and
Aerospace Workers, AFL–CIO (the Union) filed a charge
against The Shell Company (Puerto Rico) Limited (Respond-
ent, the Company, Shell, or the Employer) in Case 24–CA–
6335. The Union filed another charge against Respondent in
Case 24–CA–6364 on July 11, and filed an amended charge
in this case on August 30. The Union filed yet another
charge against Respondent in Case 24–CA–6414 on October
8, and filed an amended charge in that case on November
19. A second amended charge in this case was filed on De-
cember 17. Based on all but the last amended charge, the Re-
gional Director for Region 24 issued an order consolidating
cases, second consolidated amended complaint and notice of
hearing (the complaint) on November 29. The complaint al-
leges that Respondent has violated Section 8(a)(1) and (5) of
the National Labor Relations Act (the Act). Respondent filed
a timely answer to the complaint wherein, inter alia, it admit-
ted the jurisdictional allegations of the complaint.
Hearing was held in these cases in Hato Rey, Puerto Rico,
on August 10 and 11, 1992. The record was held open until
November 4, 1992, to allow the parties sufficient time to
agree on proper translation from Spanish into English of the
voluminous written documentation in the record. Briefs were
received from the parties on or about January 31, 1993.
Based on the entire record, including my observation of the
witnesses, and after consideration of the briefs, I make the
following
FINDINGS OF FACT
I. JURISDICTION
It is admitted, and I find, that at all times material to this
proceeding, the Shell Company (Puerto Rico) Limited is a
corporation, with an office and place of business at Pueblo
Viejo, Guaynabo, and at Luis Munoz Marin International
Airport, Carolina, Puerto Rico, wherein it has been engaged
in the nonretail sale of petroleum bulk and packaged prod-
ucts. As noted the jurisdictional allegations of the complaint
were admitted and I find that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE INVOLVED LABOR ORGANIZATION
It is admitted, and I find, that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent has violated Sec-
tion 8(a)(1) and (5) of the Act by failing or refusing to sup-
ply the Union with necessary and relevant information on
various dates beginning March 1. With respect to the specific
information sought, the complaint alleges that:
1. (a) Since on or about February 25, the Union, by letter,
has requested Respondent to furnish it with, inter alia, the
following information:
(i) Operating and financial statements of the Com-
pany for the past three (3) years.
(ii) Copies of any studies and surveys, whether by
outside consultants or within the Company which form
the basis for the position that by not getting a higher
margin of profit it is necessary for the Company’s sur-
vival to cut bargaining unit wages, benefits and to re-
duce terms and conditions of employment.
(b) Since on or about March 8, the Union, by letter, has
requested Respondent to furnish the Union with, inter alia,
the following information:
135SHELL CO.
(i) Most recent available balance sheet with details
normally prepared by the Company.
(ii) Revenue and cost breakdowns as follows in the
last 4 years:
A. Revenues: actual sales separated from any other
income such as sales of assets, investment income, etc.
When feasible, include data on the number of different
products.
B. Costs: This should include a detailed breakdown
(such is normally contained in an auditor’s supple-
mentary report) of all costs of products sold, including
administrative and selling expenses. This data should
include wages, together with all fringe benefits costs
(including pensions, insurance and payroll taxes) paid
to members of I.A.M. Similar data should be provided
for all nonrepresented employees.
(iii) Any available operating and financial projections
for the year 1991–1992.
(c) Since on or about July 1, the Union, by letter, has re-
quested Respondent to furnish the Union with, inter alia, the
following information relating to Respondent’s admission
that it was subcontracting the work formerly performed by
its janitors and P.P.A.s (plantworkers):
(i) Provide copy of the contract between Shell Com-
pany and the subcontractor company. If no contract ex-
ists, explain in detail the specific condition in which the
subcontract of work will be performed.
(ii) Provide the names, address, rate of pay, and ben-
efits that the employees performing the subcontracted
work receive, and what rules of conduct they will be
guided from.
(d) Since on or about August 15, the Union, by letter, has
requested Respondent to furnish the Union with, inter alia,
the following additional information relating to Respondent’s
admission that it was subcontracting the work formally per-
formed by its janitors and P.P.A.s:
(i) Who supervises the employees and the operation,
or from whom they receive their orders or instructions
on a daily basis.
(e) Since on or about July 1, the Union, by letter, has re-
quested Respondent to furnish the Union with, inter alia, the
following information in relation to Respondent’s operations
in Guayanilla, Puerto Rico:
(i) Is it true or not that the Shell Company will pro-
vide petroleum products to the customers in the East
and South side of the Island from Guayanilla? If the an-
swer is yes, provide the effective date and copy of any
contract. Did Shell purchase any equipment for the pur-
pose? When was the equipment purchased and when
was it received?
(ii) Provide the number of employees that will be
used by the subcontractor company to perform unit
work.
(f) Since on or about August 15, the Union, by letter, has
requested Respondent to furnish the Union with, inter alia,
the following additional information relating to Respondent
subcontracting the work formerly performed by its janitors
and P.P.A.s:
P.P.A.
(i) How many trucks at $4.50 are serviced daily and
weekly? If the amount varies on a weekly basis, then
also provide the information by month.
(ii) How many employees does Caribbean Petroleum
have, their shift of work, amount of hours, working—
daily and weekly?
(iii) Please respond to my question on No. 6 of my
letter of July 1. If you are not going to respond, explain
why. Who supervises the employees or from whom
they receive orders or instructions on a daily basis?
(iv) Please explain if you have a written contract
with Caribbean Petroleum; and if your main competi-
tion has a written contract, and if you have a copy of
them.
(v) Provide copies of purchasing orders since June
25 on.
(vi) Please inform if they bill you on a weekly or
monthly basis, and provide copies including copy of the
payments made.
Janitor
(i) Please respond to my question No. 6 of my letter
of July 1. If you are not going to respond, explain why.
(ii) Provide copies of the service purchase orders
covering the periods since June 25 on.
(g) Since on or about August 15, the Union, by letter, has
requested Respondent to furnish the Union with, inter alia,
the following additional information relating to Respondent’s
operations in Guayanilla, Puerto Rico:
(i) Inform all the charges made by the subcontractor,
if any. Copy of the service purchase orders; if it does
not cover all charges, provide additional documents to
cover all charges.
(ii) Provide the name of the subcontractor.
(iii) How many trucks are serviced from that area
daily and weekly? If the weekly amount fluctuates, then
by month.
(iv) Name the different towns that are serviced from
the South operation.
The complaint alleges that since October 18, 1967, the
Union has been the representative for collective bargaining
of a majority of the employees in an appropriate unit of Re-
spondent’s employees and, by virtue of Section 9(a) of the
Act, is the exclusive representative of all the employees in
the unit for the purposes of collective bargaining.
The following employees of Respondent constitute a unit
appropriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees employed
by the Respondent at its Catao and Guayanilla plants,
at the International Airport at Isla Verde and its office
in San Juan, Puerto Rico, as airport attendants, plant
workers and laborers, but excluding office clerical em-
ployees, salesmen, professional personnel, watchmen,
guards and supervisors, as defined in the Act.
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The complaint alleges that Respondent also violated Sec-
tions 8(a)(1) and (5) of the Act by:
(h) Since on or about July 1, changing existing terms and
conditions of employment of the employees in the unit by
unilaterally implementing its bargaining proposals, as set
forth in an a document entitled ‘‘Agreement’’ sent to the
Union annexed to a letter dated June 24.
(i) Since on or about July 1, unilaterally altering the cer-
tified bargaining unit by excluding its Guayanilla plant and
its office in San Juan from the certified bargaining unit de-
scription and eliminating existing job classifications such as
janitor, laborer, and leadworker.
(j) Since on or about July 1, unilaterally imposing changes
in the wages, hours, and other terms and conditions of em-
ployment of the employees in the unit by, inter alia, laying
off or firing certain employees in the unit, and by eliminating
the classification and functions of leadworkers, and by reduc-
ing and/or changing the wages and fringe benefits of said
employees, all without first negotiating such changes in
wages, hours, and other terms and conditions of employment
with the Union. Those employees who were laid off or fired
include:
Luis M. Diaz Victor L. Cruz
Juan A. Ortiz Carlos I. Perez
Carmelo Pimentel Eduardo Rodriquez
Hector Hernandez
(k) Since on or about June 24, unilaterally subcontracting
out bargaining unit work formerly performed by the P.P.A.’s
and janitors at Respondent’s facilities.
A. An Overview of the Case and Issues Presented
As pertinent to this proceeding, the Shell Company (Puerto
Rico) Limited, provided nonretail sale and distribution of pe-
troleum products at two locations in Puerto Rico, The Luis
Marin International Airport near San Juan and a plant and
storage facility called the Catano plant. Until 1982, Shell had
operated a facility evidently similar to Catano called its
Guayanilla facility. Since 1982, this plant had been closed
and there are no present plans to reopen it. Shell also has
an office in San Juan.
Since October 18, 1967, the Union has been the certified
exclusive bargaining representative of Shell’s employees in a
unit described thusly: All production and maintenance em-
ployees employed by the Company at its Catano and
Guayanilla plants, at the International Airport at Isla Verde
and its office at San Juan, Puerto Rico, as airport attendants,
plantworkers, and laborers, but excluding office clerical em-
ployees, salesmen, professional personnel, watchmen, guards,
and supervisors as defined in the Act.
From the evidence submitted, it appears that at all times
material to this proceeding, the Union had bargaining unit
employees only at the Airport and Catano locations. These
fell into the category of leadworkers, airport attendants and
janitors at the airport and plantworkers and janitors at the
Catano plant. The parties had entered into successive collec-
tive-bargaining agreements since the Union was certified and
past labor relations appear to have been relatively stable and
good between them over the years. However, events begin-
ning in 1989 resulted in changed financial circumstances for
Shell which foreshadowed more difficult negotiations for a
new contract to replace the one expiring March 16, 1991. In
1989, the Puerto Rico Consumer Affairs Department
(DACO) entered a ruling that fixed profit margins on petro-
leum products, and fixed such margins at a level below that
needed by Shell to operate at the financial level it believed
necessary to make a profit and satisfy its shareholders. A re-
view of this ruling came out in October 1990 and was ad-
verse to Shell and the other oil companies operating in Puer-
to Rico.
Also, in 1989, Shell lost the contract to provide fuel to
American Airlines at the airport, resulting in the layoff of a
number of its airport employees and a lessening of its vol-
ume of business at that facility. In or about January 1991,
after a well advertised period of uncertainty, Eastern Air-
lines, another Shell Airport customer, ceased operations to
and from Puerto Rico. This was followed by the cessation
of service by another customer of Shell’s, Mexicana Airlines,
in or about April 1991. By the spring of 1991, it was clear
that for Shell to maintain a presence at the airport, it would
have to win back the American Airline contract and thus it
filed a bid with that air carrier. The attempt was not success-
ful, and in October 1991, Shell closed its airport facility and
laid off all employees at that location.
Aside from the airport situation, Shell was evidently im-
pacted by the profit margin ruling at its Catano operation. It
believed that it was in an unfavorable position with respect
to employee numbers and costs vis-a-vis its primary competi-
tors, Texaco and Esso. Thus, it sought in negotiations to
lower its employee complement to eliminate what it deemed
unproductive worktime and to lower its wages and benefits
to a level competitive with or lower than those paid by Tex-
aco and Esso. In addition to seeking truly significant conces-
sions from the Union with respect to the bargaining unit,
Shell froze employment and nonbargaining unit salaries. It
did not, however, cut the wages of nonbargaining unit em-
ployees nor did it involuntarily eliminate nonbargaining unit
positions. Shell also offered in the fall of 1990 early retire-
ment to employees who fit certain requirements. These em-
ployees would not be replaced.
As will be discussed in detail hereinafter, the negotiations
began with a prenegotiation meeting between the principals
for the Company and the Union in which the stage was set
for negotiations. Representing the Company at this meeting
and throughout negotiations were Ana T. Battle, Shell’s
human resource manager, Rueben Vazquez, its operations
manager, and Tristan Reyes-Gilestra, an attorney evidently
employed for the negotiations. Representing the Union was
its longtime grand lodge representative, Juan Maldanado.
Vazquez and Maldanado had negotiated over previous con-
tracts and had dealt with one another for years in grievance
and other proceedings that involved the Company and the
Union. Battle and Reyes-Gilestra were relative newcomers to
the relationship.
The Company took the position in negotiations that it con-
sidered that its proposals were necessary for the survival of
the Airport operation and necessary to achieve a competitive
position at the Catano plant. It stressed throughout these pro-
ceedings that it was not pleading poverty or inability to pay
in the negotiations, but was simply adopting a firm position
in order to become more competitive in the short run and in
the future. Whether this is an accurate description of its bar-
gaining posture is a key element in this case. The Union took
the position that from the outset the Company was asking for
137SHELL CO.
2 Many of the letters quoted herein were originally written in
Spanish, and the translations into English in some cases result in
some unusual, but understandable, phrasings.
help from the Union because of its poor financial situation.
Accordingly, the Union consistently requested throughout ne-
gotiations certain financial and other information which
would let it ascertain the truthfulness of the Company’s posi-
tion and the extent to which concessions were necessary. It
also sought any studies which the Company had prepared to
justify its concession requests based on its asserted need to
become more competitive. The Company steadfastly refused
to supply such information primarily because of its assertion
that it was not obligated to supply such information as a mat-
ter of law, and secondarily because it considered the infor-
mation confidential.
Because of the Company’s refusal to supply the requested
information, the Union ceased meeting with the Company in
negotiation sessions after the expiration of the contract in
March 1991, taking the position that the information was
necessary for it to continue negotiations. The Company, after
extending the economic terms of the expired contract for
about 3 months, announced on June 24, 1991, its intention
to implement what it called its final offer. It did implement
this offer, in part on June 24 and the remainder on July 1,
contending that it was lawful to do so as the Union’s refusal
to negotiate had deadlocked negotiations and it was thus al-
lowed to take such action under existing law.
Thus, the numerous specific complaint allegations aside,
there are presented for determination a few critical questions:
(1) What was the posture of the Company in negotiations
with respect to its financial situation? (2) Was the informa-
tion requested by the Union necessary to its continued pres-
ence in negotiations? (3) Was the Company bargaining in
good faith in refusing to supply the requested information?
(4) When did the Union receive notice of the changes imple-
mented in wages, benefits, and other terms and conditions of
employment, including the elimination of the leadworker po-
sition and the elimination or subcontracting of the janitorial
and P.P.A. functions? (5) Was the Company’s implementa-
tion of its so-called final offer lawful under the cir-
cumstances? and (6) Was the implemented contract reason-
ably encompassed within its final offer?
This case was tried primarily with the use of written docu-
mentation and not testimony from witnesses. With two or
three exceptions, virtually everything that transpired between
the parties is documented in a letter, memorandum, or other
writing and these are relied on by the parties as their primary
evidence herein. For this reason, the facts recite far more
such evidence than would be the normal case.2
B. Events Setting the Stage for Negotiations
In November 1990, Maldanado received Joint Exhibit 2, a
letter from Shell’s operations manager, Rueben Vazquez, in
which Shell offered a voluntary early retirement program to
employees meeting certain conditions. Seven named bargain-
ing unit members met these requirements. In December
1990, Vazquez called and asked to meet Maldanado after
Christmas. Maldanado returned the called and said he would
meet on January 3. They met on that date at the Valencia
Restaurant in Hato Rey at noon. At this meeting were also
Battle and Attorney Reyes-Gilestra, whose presence was a
surprise to Maldanado as he expected to meet alone with
Vazquez.
According to Maldanado, after some small talk, Battle said
that she wanted to talk about the Company’s bad economic
situation, noting that she would be the Employer’s spokes-
person during contract negotiations. Battle said that the Em-
ployer had lost considerable business at the airport, that East-
ern Airlines had ceased their flights, that Shell had lost busi-
ness to competitors, that they felt the price increase was af-
fecting the airport, and that it was a matter of survival for
the airport, operation. The price increase related to the profit
margin decision by the Puerto Rico Consumer Affairs De-
partment. She also said that the Environmental Agency in
Puerto Rico was requiring Shell to replace all fuel tanks in
their gas stations throughout the island and this would ad-
versely affect the Company. During this conversation, ac-
cording to Maldanado, Reyes-Gilestra and Vazquez would
occasionally elaborate on some point made by Battle. The
point of the conversation was to convince Maldanado that the
Company was in the situation of trying to survive. Vazquez
asked Maldanado for his help given the situation.
Maldanado asked Battle what the Company was doing to
face this critical situation and she responded that it had fro-
zen all employee positions as well as management positions.
The Company was encouraging all employees to take early
retirement and, for those that did, their positions would not
be filled. After hearing this explanation, Maldanado indicated
that he would help. He asked that the Company come to the
bargaining table prepared to explain the entire situation to the
bargaining committee and provide all necessary information
so the Union would be in a position to face the situation. Ac-
cording to Maldanado, all three company representatives
agreed.
Maldanado testified that his willingness to help seemed to
surprise Reyes-Gilestra and Battle. Battle then said she
would like to explain how Shell compares with its competi-
tors. She told him that Shell was at a competitive disadvan-
tage against its competitors, Esso and Texaco, because they
had larger operations in Puerto Rico and were able to pur-
chase product at a lower price because of their larger volume
purchases. She said the Shell’s Puerto Rico operations were
separate from Shell’s other operations and were essentially
local and thus at a disadvantage vis-a-vis its competitors. Be-
cause of this situation, Battle said the Company was going
to make two kinds of proposals, one for the airport and an-
other for the Catano plant operation. Maldanado stopped her
and said for them to leave the details of negotiations for the
bargaining sessions. Battle then passed an envelope to him
and said that they were opening the contract now.
In the envelope was a letter addressed to Maldanado. It is
signed by Battle and states:
As you had informed Mr. Pedro R. Vazquez, Oper-
ations Manager, that you were not going to be available
until January 17, 1990, because of your annual vaca-
tion, by this means I hereby inform you of the intention
of the Shell Company (Puerto Rico) Limited, to end the
Collective Bargaining Agreement and make changes
thereof, which expires on March 16 of the current year.
We will submit at a later date, the changes or amend-
ments that we intend [to do]. As soon as you receive
the company’s proposal, I will appreciate that you con-
138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Jt. Exh. 9 is a memorandum sent by Vazquez to Shell employees
on March 22, 1991. In pertinent part it states:
The Company did not open the Collective Bargaining Agree-
ment with the purpose of reducing benefits and wages. At the
meeting of January 3, Mr. Maldanado was informed that the sit-
uation at the Airport was critical and of survival, a situation that
is known by a large majority of you; while in Catano we have
to look for ways on how to place ourselves in a similar or better
position than our competitors. On March 1, 1991, we submitted
our first economic proposal to Mr. Maldanado, which contains
some reductions in benefits and wages to the employees covered
by the Collective Bargaining Agreement, with the purpose of
placing Shell in a better competitive position.
It is the responsibility of the Union committees and Shell to
discuss at the negotiation table the proposals made by the Com-
pany. It will suffice to point out that although the Company’s
goals during these negotiations are to trim down the wages and
benefits to lower levels than the present ones, we want to reach
that goal mainly through the adjustment of provisions in the
Agreement, whereby the Company pays for nonproductive time.
That is, to pay for time actually worked by the employee. Al-
though these are drastic measures, the Company has to act in
a responsible manner to assure itself a competitive position in
the market and be able to continue being a source of employ-
ment for all of those who work here.
This memorandum is a good example of the Company’s mixed
message to the Union and its employees. It characterizes the situa-
tion at the Airport as one that is critical and ‘‘of survival.’’ It then
retracts somewhat and expresses its need to become more competi-
tive, and follows that with a thinly veiled threat that failure to give
tact me to coordinate, at your convenience, the date of
the first negotiation meeting.
Maldanado objected to the letter because it said he would
be on vacation and unavailable for bargaining. He then be-
came upset and told them he did not like the way the meet-
ing was conducted, pointing out the meeting was supposed
to be only with Vazquez. Reyes-Gilestra tried to calm him,
but Maldanado said the way they were treating him was not
proper. He indicated he may withdraw his offer of help, and
left.
Battle testified that she told Maldanado at this meeting
that the Company was going to try to survive at the airport
and had to become very competitive at the Catano plant. She
denied using the word ‘‘critical’’ to describe the situation,
but was equivocal on whether the Company’s situation was
described as such in other words.
Vazquez testified that in preparation for negotiations for
the contract to succeed the one expiring March 16, he and
other supervisors met beginning in November 1990 to dis-
cuss the Company’s present financial situation and compared
Shell to its main competitors. The result of these discussions
was the formulation of a goal to become more like its com-
petitors, and eliminate compensation for unproductive time.
As will be shown in more detail later, Vazquez also partici-
pated in the preparation of some comparative wage studies
beginning about this time. These studies showed Shell’s best
estimate of the various wage and benefit costs of its competi-
tors, Texaco and Esso, and compared them with Shell’s ex-
isting costs and some proposed costs.
With respect to the January 3 meeting, Vazquez testified
that he, Battle, and Reyes-Gilestra conveyed to Maldanado
the Company’s objective of eliminating compensation for un-
productive work that was built into the existing collective-
bargaining agreement. He indicated that eliminating the
leadworker and janitorial positions was mentioned. I do not
credit this testimony. No one else testified that these specific
employee positions were targeted in this meeting and
Vazquez’ memory of the meeting was shown to be less than
complete. Additionally, his affidavit given to the Board dur-
ing the investigation of the case makes no mention of these
topics arising during the January 3 meeting.
With respect to the airport, Vazquez testified that the
Company had to try to survive because the industry was
shrinking and the Company had lost some business at the fa-
cility. With respect to Catano, it was mentioned that the
Company wanted to be competitive with Esso. According to
Vazquez, Maldanado indicated that he would listen to what
the Company had to say and then meet for negotiations.
Vazquez denies that any company official at this meeting
stated that Shell was in bad financial condition. Again, I do
not credit Vazquez’ testimony to the extent that it is different
from Maldanado’s testimony on this point.
I believe it is clear that coming out of this meeting,
Maldanado was left with the desired impression that the
Company’s financial situation was critical. The continued op-
eration of the airport facility was couched in terms of its sur-
vival, and the need to become more competitive at Catano
was given in the context of the adverse Consumer Affairs
Department ruling, which affected the oil companies’ profit
margins on product sold. Having told Maldanado that in ef-
fect its two main competitors can purchase product more
cheaply, and implying that their employee costs are lower,
the only conclusion anyone can come to is that Texaco and
Esso were at a substantial competitive advantage that would
lead to the ultimate demise of Shell in Puerto Rico, unless
there are changes (employee concessions) made. Much is
made of some statements by Shell in letters to the Union that
it is not unable to pay the current contract wages and bene-
fits, but that it only wants to become more competitive. I be-
lieve that Shell was playing semantical games in these let-
ters. Such statements are not coming from an employer who
is clearly enjoying substantial profits and just wants more be-
cause it believes it can force concessions on employees, it
is coming from a company which set the stage for negotia-
tions by explaining in broad strokes just what bad shape it
was in. The fact that it did not say that it was losing money
hand over fist and was in imminent danger of going out of
business did not lessen the impression given by what was
said that this was the case. As I state in the conclusion sec-
tion of this decision, I believe it is clear that Shell was very
aware of Board decisions that deal with the different con-
sequences of claiming current inability to pay existing wages
versus claiming the need to become more competitive to sur-
vive in the future. By its actions, it gave Maldanado the rea-
sonable impression that it was in current dire straits, then it
wrote letters saying that it just needs to be more competitive,
building, in my opinion, a defense for its intention of sub-
stantially changing its labor cost structure whether the Union
agreed or not. I also believe that the Company mislead
Maldanado in the January 3 meeting by asking for his help
and receiving his word that he would help, subject to the
Company justifying its position. It is difficult to find that the
Company was bargaining in good faith when it refuses to co-
operate the first time Maldanado requested information to es-
tablish such justification.3
139SHELL CO.
the concessions sought will result in the Company’s failure. The
message is further mixed because as Battle noted to Maldanado on
January 3, the Company said it was approaching the airport dif-
ferently from Catano in the negotiations, thus creating the impression
that the two were in different situations. Yet, with the exception of
the recognition clauses proposed, employees at both the airport and
Catano were asked to make the same severe sacrifices. For reasons
that are set out in more detail in the conclusion section of this deci-
sion, I do not believe an employer can have it both ways and still
claim the rights afforded employers under such cases as Neilson
Lithographing Co., 305 NLRB 697 (1991).
Between the January 3 meeting and January 15,
Maldanado did not hear further from the Company. So he
sent the Company his own letter reopening the agreement for
negotiations and invited negotiations beginning January 26,
advising he would make a proposal on behalf of the Union
at that time.
At an arbitration proceeding involving Shell and the Union
held on January 18, the Company handed Maldanado a letter
agreeing to meet on January 26 to begin negotiations.
Before the negotiations got underway, the Company gave
Maldanado another indication that it was in a bad way finan-
cially. On January 19, Maldanado was again at the arbitration
proceeding in the company of two employee stewards who
were aiding in the proceeding. According to the terms of the
existing contract, these stewards were entitled to doubletime
after 8 hours in addition to 8 hours’ regular pay. At least
some of the time that they had spent at the arbitration was
overtime under the existing contract. According to
Maldanado, at the conclusion of the meeting that day, Reyes-
Gilestra approached him and the two were within 2 or 3 feet
of Battle, and told him that for the reasons the Company
gave on January 3, it could not pay the overtime to the two
stewards, asking that the Union release the Company from
this commitment. Maldanado said he could not give such a
release because of the contract, but because of the Compa-
ny’s condition, he would contact the two stewards and ask
them for their view. As the stewards had just left, he rushed
out to see if he could catch them. He found one of the stew-
ards, Jorge Lopez De Victoria, and explained the situation to
him. The steward agreed to accept just straight time and
forgo overtime pay. He then found Battle and Reyes-Gilestra
and informed them of Lopez De Victoria’s decision, but tell-
ing them he could not speak for the other steward. He indi-
cated that Lopez De Victoria was going to try to reach the
other steward, Jorge Negron, and get a similar agreement
from him. On the following Monday or Tuesday, Maldanado
heard from Negron, who was unwilling to forego his over-
time pay. He did not relay this information to the Company
and learned later that the Company had paid both stewards
straight time, and no overtime.
Jorge Lopez Negron testified that he was notified of the
Company’s decision not to pay overtime to the two stewards
by Lopez De Victoria on January 21. As he was unhappy
with this, he called Maldanado who told him that Battle had
indicated that the Company was having financial difficulties.
Negron indicated that he really did not care and wanted over-
time as called for by the collective-bargaining agreement. On
January 24, he attended the first negotiating session and at
its close, Reyes-Gilestra asked him if he was accepting the
regular pay for the arbitration. Negron indicated he was not.
According to Negron, Reyes-Gilestra said that Lopez De
Victoria had accepted the pay because of Shell’s financial
difficulties. Negron decided to accept the Company’s offer of
regular pay at that time because it did not look to him as
if he had a choice.
Reyes-Gilestra testified and denied ever telling Negron
that the Company was in bad financial condition. However,
he did not deny telling Maldanado virtually the same thing
on January 19.
On this subject Battle testified that the parties agreed to
continue the arbitration to another date before another arbi-
trator because of their mutual dissatisfaction with the arbitra-
tor then involved. She testified that under these cir-
cumstances, as the collective-bargaining agreement called for
all costs of arbitration being shared by the Union and Com-
pany, she proposed only straight time pay for the stewards
as the time spent thus far on the arbitration was a waste of
time. She testified that Maldanado agreed. She denied telling
Maldanado that the Company’s economic condition was the
reason for proposing regular rather than overtime pay.
I credit Maldanado’s version of the incident insofar as it
is relevant on the issue of whether the Company was con-
tinuing to stress its financial plight. The Company was obli-
gated to pay overtime to the stewards under the existing con-
tract, and there is no showing of a past practice to forgo pay-
ing overtime in arbitration hearings because the contract
called for the sharing of expenses. As the financial reason at-
tributed for this request by Maldanado appears far more rea-
sonable given the timing and circumstances than the reason
offered by Battle, I accept Maldanado’s testimony. Attorney
Reyes-Gilestra offered no explanation of why the request was
made though he testified on this point and he did not deny
Maldanado’s assertion that he told Maldanado that the Com-
pany could not pay the overtime. Moreover, the first nego-
tiating session began with Battle stating that the Company
would not pay overtime for the employee members of the
Union bargaining committee. This break from past practice
is consistent only with the position that the Company could
not afford the overtime.
C. The Negotiations Between January and the
Expiration of the Existing Contract on March 16
The parties stipulated into the record notes made during
the bargaining sessions by various persons in attendance. Part
of the stipulation was to the effect that the notes of Jorge
Padilla, a representative of management, are the most accu-
rate. I have reviewed these notes carefully and find that they
do not contain any startling revelations, but instead show ne-
gotiations which are going nowhere. Reference is here made
to Appendix A to this decision, which is a brief narrative
comparison of the provisions of the expiring contract, the
proposals made by Shell up to the expiration of that contract
(the pre-June 24 proposals) and the contract proposed by
Shell on June 24 and implemented on July 1. Reference to
this appendix will reveal that Shell proposed a large number
of employee contract concessions, some of which were so se-
vere that they were bound to take the Union aback. For ex-
ample, Shell proposed cutting wages by about $4.60, or 40
percent per hour. It proposed cutting vacation days by 1 to
10 days. Though nothing is mentioned in the bargaining
notes about this, it also proposes by deletion of certain lan-
guage to eliminate the employee classifications and thus the
jobs of janitors and leadworkers. In the same manner, it pro-
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 In pertinent part, this handbill stated:
We wish to inform you about the last happenings of the Interim
Order of Prices and Interest Rates (Profit Margin) issued by the
Consumer Affairs Department on June 27, 1989, and the dif-
ferent articles that have appeared in the newspapers during the
last days about this same matter. The order issued in advance
continues in force, for which reason it is in a corporate sense
that it is an untenable situation, since we need a higher margin
to cover the operational costs and also obtain a return (yield)
over the invested capital agreeable to our stockholders. At this
time this return is practically zero percent with a margin of elev-
en cents per gallon. In addition to this situation, on October 31,
1989, the contract for the provision of fuel between this enter-
prise and American Airlines expired, this being the reason for
which twenty employees of our Plant at the Airport were laid
off. In view of this situation, it is necessary that we evaluate our
work plans and design our strategies with greater aggressiveness
to assure the stability and continuity of our business undertak-
ings in the Island.
poses to eliminate a job function of plantworkers called
P.P.A., which resulted in the elimination of some employees
in this position. Benefits covered by the contract were se-
verely cut back, including any mention of pension or life in-
surance. The grievance and arbitration procedures were
changed significantly and for the worse for employees. Sick
leave, funeral leave, and leave for jury, duty and court ap-
pearances were adversely changed from the employees’ point
of view. Even the recognition clause was changed to elimi-
nate the laborer classification and the locations of San Juan
and Guayanilla. These are not all of the changes proposed,
but they should give a good idea of the magnitude of the
concessions being sought.
Negotiations began on January 24 pursuant to a request
from Reyes-Gilestra and Battle. At the outset of the meeting,
Battle stated, ‘‘The Airport is for survival and Catano for
keeping it as it is, but avoiding that it falls into the condi-
tions that the Airport is in.’’ The meeting began with the
Union giving the Employer some written proposals.
Maldanado explained to the Company that because of its fi-
nancial situation, he understood that they were going to say
they could not pay increases in wages and benefits. He said
he was leaving it up to the Company to show to the Union
its financial position. For this reason, the Union did not sub-
mit a wage and benefit proposal at that time. The parties set
up the rules for negotiations and for the first time, manage-
ment, through Battle, announced that employee representa-
tives for the Union would only be paid for time in negotia-
tions at straight time rates. In past negotiations they received
overtime. To me this has nothing to do with being more
competitive, but much to do with conveying the impression
that the Company was indeed in bad financial condition and
unable to pay existing contract wages.
On January 31, pursuant to Maldanado’s request, Vazquez
met with him at an Argentine restaurant in Hato Rey, meet-
ing from about 4:30 p.m. until 6 or 7 p.m. Maldanado ex-
pressed his concern to Vazquez that he could not commu-
nicate properly with Battle. He also told Vazquez that in past
negotiations, the parties had negotiated long after the expira-
tion of the involved contract. In the negotiations before the
current ones, the parties negotiated for about 6 months after
that contract expired before they agreed to a new one. This
had not been a problem in the past. However, Maldanado
was worried that because of the way he was being treated,
that he may be in for a surprise and asked Vazquez about
this. Vazquez assured him he had nothing to worry about,
not to worry about the expiration date and the Company will
continue bargaining as in the past.
On February 25, the Union sent the Company a letter re-
quest for information. This request sought a number of
things, including the Company’s operating and financial
statements for the past 3 years. Maldanado sought this infor-
mation because of the representations made to him during the
January 3 meeting that the Company was in bad financial
condition. Such information would verify the Company’s fi-
nancial situation and give a basis for finding ways out of the
situation. Also the Company had distributed a handbill to
employees in November 1989, that indicated that because of
the Consumer Affairs decision, the Company was not making
a profit.4 The Union also requested copies of any studies,
surveys, whether by outside consultants or within the Com-
pany which form the basis for the position that by not getting
a higher margin of profit it is necessary for the Company’s
survival to cut bargaining unit wages, benefits and to reduce
terms and conditions of employment. This was sought for the
same reasons as the other information. Neither of these two
requests were ever honored by the Company before it imple-
mented its proposals on July 1. The financial information
sought was given on or about July 26, but the comparative
study was not made available until the hearing herein. In this
regard, reference is made to Appendix B to this decision
which is the final version of such a study made by Shell in
April 1991. The testimony of Vazquez reveal that this was
the last in a series of such studies which had been been made
for months preceding April 1991, and which were used as
a basis for the Company’s bargaining goals.
The Company responded to the February 25 request by
letter dated March 1 (Jt. Exh. 7), providing all the informa-
tion sought except the two items discussed above. In its re-
sponse to the information request, the Company mentioned
the meeting of January 3 and stated:
The purpose of the meeting was to advise you that
the Company considered that the upcoming negotiations
would be of a different nature, in view of certain devel-
opments which had occurred during the past recent
years. We mentioned DACO’s (Consumer Affairs De-
partment) refusal to review the amount of gross margin
per gallon allowed to the oil companies operating in
Puerto Rico. We also indicated the steps the Company
had taken so far to address this situation, including the
establishing of a window in the Pension Plan. The
Union’s assistance and understanding during the up-
coming negotiations was specifically requested. Also, at
the meeting, you were handed an envelope containing
a reopening letter and cancellation of the labor contract
at the expiration date, which is, 11:59 p.m. on March
16, 1991.
In connection with the information you request and
which you allege is necessary for the Union to continue
conducting negotiations properly on behalf of the work-
ers you represent, we have to clarify certain points. In
the first place, at the bargaining table, the Company has
never assumed the position of inability to pay. We have
informed you and the Union’s bargaining committee
141SHELL CO.
5 The financial statements show the following with respect to
Shell’s profitability for the years covered by the financial statements
provided:
1987—Profit of $4,908,826
1988—Profit of $4,441,618
1989—Profit of $2,519,358
1990—Loss of $1,062,999
that the Company’s goal in this negotiation is to elimi-
nate compensation for unproductive time and improve
our competitive position. We have also indicated that in
the case of the Airport, this is a matter of survival, and
in the case of the Catano plant, it is a matter of putting
ourselves in a better position than our competition.
These are the Company goals in these negotiations.
In regard to the specific items the Company refused to
comply with, it said ‘‘The operating and financial statements
of the Company are confidential. The Company does not dis-
close these documents and, in addition, these documents are
totally unrelated to the negotiations. As we have indicated to
you, the Company is not assuming the position of inability
to pay. The Company is establishing its bargaining goal.’’
On the matter of studies or surveys, the Company responded,
‘‘Said information is irrelevant for you to continue conduct-
ing negotiations, in view that, as we have indicated and now
reiterate, the Company has not assumed the position of in-
ability to pay. If the Company determines that it should pro-
vide you with any studies, surveys or analyses, it will do so
at the bargaining table.’’
Puerto Rico Corporation Laws, Title 14, Sections 2301
and 2303, require that every corporation doing business in
Puerto Rico, including Shell, must file a financial statement
with the Puerto Rico Department of State each year. Section
2501, part C7 states that any person desiring a copy of these
statements can obtain a copy of them from the Department
of State. Vazquez vaguely testified that Shell’s local financial
officer was reluctant to make this financial information avail-
able to the Union and wanted to keep it confidential. In view
of the statute noted, I find this explanation far less than con-
vincing. There was no showing that the Union was aware of
this required statutory filing or at any time before July 26,
1991, had access to the financial statements of Respondent.
On the other hand, as Shell had to make the filings, it was
certainly aware that its financial statements were public in-
formation in Puerto Rico and thus had no legitimate business
reason for refusing to supply them to the Union on request.5
On the matter of why the Company did not supply the fi-
nancial records sought by the Union, Vazquez testified:
Well, the company position was that, first, that these
documents were available to the negotiations and we
had never said that we could not pay, that we were not
willing to continue paying for those conditions of work
that were unproductive so that was our position, and
they said, well, you don’t need financial statements for
that and I think one of the letters mentioned that we
don’t even give this to financial institutions so if people
want to give credit to us.
I believe this garbled reasoning does contain at least one ele-
ment of truth. The financial statements were not necessary
for bargaining from the Company’s point of view as it had
no intention on bargaining over its goals, that is, to stop pay-
ing for what it considered unproductive work. Indeed,
Vazquez later indicated in his testimony that the Company’s
position on the elimination of the leadworker, janitorial, and
P.P.A. positions was firm and not amenable to bargaining.
The Company’s reasons for refusing to supply the com-
parative studies are equally suspect. Not only did they have
such studies, but one of the primary goals of the negotiations
from Shell’s standpoint was to become competitive on wages
and benefits vis-a-vis Texaco and Esso. As it was basing its
proposals in this regard on a study of its perception of Tex-
aco and Esso’s benefits and wages, such information would
be of obvious use to the Union in bargaining, and could have
formed the basis for some meaningful negotiations as the
Company’s study revealed that its competitors did have
lower costs in many respects. Even if one accepts the Com-
pany’s rhetoric about its situation being one of unwillingness
to pay rather than inability to pay, and I do not, the informa-
tion contained in the comparative study is clearly relevant to
its position that it needs to be more competitive. Giving the
Company the benefit of every doubt on this subject, though
it is not raised as a defense in letters to the Union, it could
have assumed that the Union had the information with re-
spect to Esso as the Union was also in negotiations with that
company. However, there is no reason to believe that the
Union had the corresponding information about Texaco.
Vazquez admitted as much in his testimony. Moreover, even
if the Union were able to secure labor cost data about Esso
and Texaco from other sources, it could not be sure that the
information it thus secured was the information being used
by Shell or what part of the cost data was being used by
Shell. The manner of Shell’s use and reliance on the data is
probably as important as having the raw data itself.
Vazquez was also asked in his testimony why this infor-
mation was not supplied and could not give a intelligible an-
swer. (See Tr. 229.) The fact that he could not think of a
reason is understandable given the position he took before
the Board in this case at an earlier date. Respondent’s Ex-
hibit 6 is a statement given by Vazquez to the Board during
the investigation of this case. It is dated May 13, 1991. Inter
alia, in the affidavit, he explains that it was the Company’s
goal at Catano to become competitive with similar operations
by Texaco and Esso, from the standpoint of numbers of em-
ployees and wages paid. He then cites as an example the
wages paid plant employees at Texaco and Esso and com-
pares them with those paid Shell plant workers at Catano. He
then states: ‘‘I haven’t yet had the opportunity to discuss
these costs and numbers [figures] with Juan Maldanado be-
cause he hasn’t given us the opportunity to present these fig-
ures and to discuss the matters in detail.’’ It appears that on
May 13, Vazquez clearly understood the importance of the
comparative studies to negotiations, though he steadfastly re-
fused to provide the studies.
On March 8, the Union sent the Company another infor-
mation request (Jt. Exh. 10) wherein it stated, inter alia:
In our collective-bargaining agreement negotiations
meeting on 3/7/91 you presented to the Union some
proposals and stated that you have provided the Union
with all the company language on noneconomic and
economic items. In view of the content of the propos-
als, the amount of work involved and the responsibility
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the Union to properly represent the interest of the
workers, I requested to postpone the 3/8/91 meeting, to
excuse from work the two committee persons to work
with the Union on matters dealing with the negotiation.
I also indicated that I was planning to meet on Monday,
3/11/91, as scheduled, subject to my readiness for such
meeting, including that I have to discuss some matters
with proper officials of my organization if I were able
to get in touch with them. All these matters were
agreed by the company.
Specifically the Union again asked for the information re-
quested in the February 25 letter and not provided and fur-
ther sought:
(1) Most recent available balance sheet with details
normally prepared by the Company.
(2) Revenue and cost breakdowns as follows in the
last 4 years:
A. Revenues: actual sales separated from any other
income such as sales of assets, investment income, etc.
When feasible, include data on the number of different
products.
B. Costs: This should include a detailed breakdown
(such is normally contained in an auditor’s supple-
mentary report) of all costs of products sold, including
administrative and selling expenses. This data should
include wages, together with all fringe benefits costs
(including pensions, insurance and payroll taxes) paid
to members of I.A.M. Similar data should be provided
for all nonrepresented employees.
. . . .
(4) Any available operating and financial projections
for the the year 1991–92.
The Union wanted the information as supplementary infor-
mation to the earlier request to get a better picture of the
Company’s bad financial condition.
The Company replied to this request in a letter of March
8 (Jt. Exh. 17), wherein it states:
1. Regarding your request that we provide copy or
make available operating and financial statements of the
Company in the last three years; balance sheet; revenue
and cost breakdowns for the last four years; corporate
income tax returns and any available operating and fi-
nancial projections for the year 1991–1992, we reiterate
our statement that all this information is not relevant to
the position assumed by the Company in these negotia-
tions and that all or part is confidential.
We have not provided financial statements in the
past, even to suppliers and financial institutions who
have requested the same to grant us credit. Such is the
interest of the company in maintaining these documents
undisclosed.
We once again repeat that the Company is not as-
suming the position of inability to pay. As we indicated
in our letter of March 1, 1991, the Company is estab-
lishing a bargaining goal during these negotiations. Spe-
cifically, the Company is aiming at eliminating com-
pensation for unproductive time and improving our
competitive position. In the case of the Airport, this is
a matter of survival, and in the case of Catano Plant,
it is a matter of putting ourselves in a better position
than [our] competition.
The Company did provide some of the other information
requested.
As noted in the overview section of this decision, there is
an issue presented as to when the Union received notice that
the Company wanted to eliminate the jobs of janitors and
leadworkers and take away from the plantworkers the so-
called P.P.A. functions. At the airport, there were three clas-
sifications of employees, airport attendants, leadworkers, and
janitors. Maldanado testified that the employer had two em-
ployee classifications at the Catano plant, ‘‘plantman’’ and
‘‘janitor.’’ The plantmen’s duties involved receiving the
barge (carrying fuel), transferring fuel to Company tanks and
receiving all merchandise to be stored at the warehouse.
They also checked fuel levels in the storage tanks on a regu-
lar basis. Plantmen made deliveries, operating a filling sta-
tion where trucks that distribute fuel are given fuel and pa-
perwork completed. They also placed a seal over the delivery
trucks’ outlets to comply with environmental directives. This
sealing work, known as the P.P.A. duties, had been subcon-
tracted until it was made a part of the plantmen’s duties in
negotiations around 1985. The making of this duty part of
plantworkers’ duties was accomplished by a letter of under-
standing attached to the old contract.
As shown in detail in Appendix A hereto and by a com-
parison of the expiring contract with Shell’s pre-June 24 pro-
posals, the elimination of the janitor and leadworker posi-
tions and the elimination of the P.P.A. duties from
plantworkers is shown only by the deletion of any mention
of janitors and leadworkers in the salary section of the pro-
posal and the deletion of the old letter of understanding
about the P.P.A. duties. I cannot find that these matters were
mentioned in the bargaining notes, though there is evidence
that at least in general they were discussed at a private meet-
ing between Maldanado and Vazquez on April 10. I believe
that Maldanado knew that at least the janitor and leadworker
positions were being eliminated as his notes on his copy of
the pre-June 24 proposals so indicate. A report that
Maldanado sent to the International on March 22 seeking ad-
vice indicates that on that date he knew Shell was proposing
to eliminate jobs and job classifications. On the other hand,
there is nothing to indicate that these jobs or the P.P.A. func-
tion were to be subcontracted until Respondent’s letter of
June 24.
March 12 was the last formal negotiation session between
the parties. There was one meeting between Maldanado and
Vazquez on April 10, discussed below, and other than that
there was no attempt at negotiating made, though the Com-
pany did often make requests for negotiations to resume.
D. The Period Between March 12 and June 24
On March 7, the Company presented its final offer, and
on March 12, the Union presented a response. The Company
proposed meetings on several dates and they agreed to meet
on March 19 for the Company to respond to the Union’s pro-
posal of March 12. Maldanado canceled. A review of the
correspondence between the parties between March 8 and
June 24 gives a clear picture of what transpired in that pe-
riod.
143SHELL CO.
Joint Exhibit 12 is a letter from Vazquez to Maldanado
dated March 13, 1991, which states:
Your letter dated March 8, 1991, was received on
Wednesday, March 13, 1991. We will review the same
and submit our answer at the meeting we have sched-
uled for Tuesday, March 19, 1991. At said meeting we
will give you an answer to the positions you expressed
at the meeting of March 12, 1991. We reiterate that the
Company’s Bargaining Committee has been and contin-
ues to be available to negotiate. We suggest the
Union’s Committee also assume this position to expe-
dite this negotiation.
Joint Exhibit 14 is a letter from Maldanado to Vazquez
dated March 15, which states:
By expressing that the Company’s bargaining commit-
tee has been and continues to be available to negotiate
is not enough to show it has been bargaining in good
faith. In view of the way the employer has been nego-
tiating and the cancellation of the agreement as of
March 16, 1991, I hereby request that the pending
meetings of March 19 and 25, 1991, be postponed until
further union advise since I have to make a study of
the whole process in this negotiation to file a complete
report to our organization for their analysis and advise
under the present situation. I will appreciate receiving
the information requested in my letter of March 8,
1991, which will be part of this report and will assist
the Union in understanding your position.
Joint Exhibit 15 is a response to Joint Exhibit 14 from
Vazquez, dated March 15, which states:
We acknowledge receipt of your letter dated March
15, 1991, where you unilaterally postpone, ‘‘until fur-
ther Union advise,’’ the agreed scheduled meetings of
March 19 and 25, 1991. We reiterate what we indicated
in our letter of March 13, 1991. Therefore, we will be
present at the Negociado de Conciliacion y Arbitraje
next Tuesday, March 19, 1991, at 9:30 A.M.
There is no reason to postpone said meetings. In the
same, you will receive the Company answer to the po-
sition that was expressed by the Union’s committee at
the meeting of March 12, 1991, regarding various sec-
tions and/or articles, both economic and non-economic,
which are presently open. In addition, at said meeting
you will receive the Company position concerning your
letter of March 8, 1991.
We are certain you agree that your cancellation of
these meetings can only further protract the negotiations
we consider that the meetings scheduled for March 19
and 25 can, and should be, utilized by the parties to ex-
pedite the same.
Joint Exhibit 16 is a letter to Vazquez from Maldanado,
dated March 15, and which states:
In the meeting of March 12, 1991, on or about 3:10
P.M. you advised the Union that effective March 16,
1991, the contract between the parties will be left with-
out effect; that the Company will honor economic items
and will pay the Medical Plan.
For the Union’s bargaining committee and the unit
employees to know exactly what you are expressly cov-
ering, please identify all the economic items you mean
to honor or the employees to continue to enjoy. Please
provide this information within five days from receiv-
ing this letter.
Joint Exhibit 18 is a letter dated March 19, 1991, from
Vazquez to Maldanado, which states:
In relation to your letter on March 15, 1991, where
you requested that the Company identify the economic
items that it will maintain similar to the collective-bar-
gaining agreement, which terminated last Saturday,
March 16, until further notice:
1. Article XVII ‘‘Hours Work Schedule Overtime’’
2. Article XVIII ‘‘Salaries’’
3. Article XIX ‘‘Vacations’’
4. Article X ‘‘Holidays’’
5. Article XI ‘‘Leave of Absence’’
6. Article XIV ‘‘Union Representative’’
7. Article XVII ‘‘Existing Policies’’
8. Article XVIII ‘‘Bonus’’
9. Article XXIX ‘Benefit Plans’
We take the opportunity to confirm the Union Bar-
gaining Committee did not make itself available for the
scheduled meeting of today.
The Company Committee waited at the ‘Negociado’
in excess of one and one half hour. We left after it was
obvious that no representative of the Union’s Commit-
tee will be present and neither a message was received.
As indicated in my letter on March 15, 1991, we in-
sist on the meeting of March 25, 1991, as scheduled.
We will again be present at the ‘Negociado’ at 9:30
AM prepared to continue these negotiations. Once
again, we urge the Union Committee to make itself
available and avoid unnecessary additional delays.
Joint Exhibit 19 is a letter dated March 19, 1991, from
Maldanado to Vazquez, which states:
Please refer to my letter dated March 15, 1991. I have
nothing further to add at the present time. I will not
enter into discussion whether you consider we have rea-
sons or not for the postponement. I made an invitation
to you that if there was anything to clarify to feel free
to contact me. You did not do it. In the near future, I
will contact you as expressed in my previous letter.
Joint Exhibit 20 is a letter dated March 26, 1991, from
Vazquez to Maldanado, which states:
The Company’s Bargaining Committee waited for you
today in excess of one and one half hours at the
‘‘Negociado de Conciliacion y Arbitraje’’ to continue
negotiations. The only manner to accomplish our mu-
tual goal of negotiating is by sitting at the negotiating
table. We consider that the parties should utilize your
suggested open date of April 3, 1991, with the purpose
of discussing the open articles and sections, instead of
discussing the few pending grievances. Also we con-
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sider that the negotiations have priority at this time.
Therefore we confirm that we will be available at the
‘‘Negociado’’ on April 3, 1991, at 9:30 AM, where
room reservations have already been made.
Joint Exhibit 21 is a letter dated April 1, 1991, from
Vazquez to Maldanado, which states:
We make reference to our letter of March 26, 1991,
where we reiterate that we will be available at the
‘‘Negociado’’ on April 3, 1991, at 9:30 AM, where
room reservations have already been made. At that time
and place, we will be prepared to continue the negotia-
tions related to the Collective Bargaining Agreement.
However, if you refuse to do so, and instead insist on
utilizing said time to discuss pending grievances, we
will not refuse to do so. In connection with your invita-
tion to contact you to clarify anything, we consider that
we have made ourselves available at all times to dis-
cuss and negotiate, and through that process, clarify
anything relevant which needs to be clarified. Feel free
to contact me however, if you have alternative which
you consider may make the present situation more
fluid.
Joint Exhibit 22 is a letter dated April 1, 1991, from
Maldanado to Vazquez, which states:
Reference is made to your letter dated March 26, 1991,
in which you stated that the Company’s bargaining
committee waited at the P.R. Labor Department for the
Union committee to show up. Please be advised that we
consider this company position to be frivolous since the
Union canceled the meeting and explained the reasons
for. Please be advised that the Union and the shop
stewards will be at Catano Plant for the purpose of dis-
cussing pending grievances and related information on
April 3, 1991, at 9:30 AM as previously suggested.
May I use this opportunity to bring to your attention
that you have not responded to the Union question on
separate letter to be informed if the Company does not
want the Union to conduct meetings with management
or to check the employees time cards at Company’s
meeting rooms within the certified unit premises as it
has been done in the past.
Joint Exhibit 23 is a letter dated April 3, 1991, from
Vazquez to Maldanado, which states:
I am surprised to have received your letter dated April
1, 1991, at 12:55 PM on April 2, delivered by your
shop steward at the Airport Plant. All the issues
brought up in such letter were discussed in my two let-
ters dated April 1, and received at your home at 4:51
PM on April 1, 1991. In those letters I expressed the
availability of the Company’s Bargaining Committee at
the ‘‘Negociado’’ to continue negotiations at the
‘‘Negociado.’’ However, if you insist in your refusal,
then I’ll still be available to discuss the few pending
grievances. The ‘‘Negociado’’ has been a mutually
agreeable place to meet, not only for the negotiations,
but also for our last three meetings were pending griev-
ances were discussed on August 28, September 19 and
November 28, 1990. At this moment I am waiting for
you at the ‘‘Negociado.’’
On April 10, Maldanado proposed that the expired contract
be extended for a year. This offer was made at a restaurant
to Vazquez who was meeting with Maldanado to discuss a
grievance. Maldanado testified that he proposed three condi-
tions: ‘‘(1) I would be willing to amend the payment to the
stewards and that’s the issued created by Mrs. Battle on Jan-
uary 19; (2) I’d be willing to negotiate a cut in pay which
was the matter of the grievance, of the arbitration, and many
meetings before arbitration between the parties, and (3) a
condition that the company would provide the necessary in-
formation to justify their bad financial condition.’’ According
to Maldanado, Vazquez said he would take this proposal to
highest management. Maldanado denied that Vazquez asked
whether Maldanado was willing to consider the elimination
of seven employee positions as a condition to his giving con-
sideration to Maldanado’s extension proposal.
Vazquez remembers the meeting differently. He remem-
bers in a vague sort of way going over all the contract pro-
posals which were still outstanding and discussing them.
Vazquez testified that the only negotiation topic he did not
discuss in this meeting was the matter of the Christmas
bonus and the amount of the medical plan contribution by
the Company. He reiterated the Company’s position and
Maldanado reiterated that he wanted the information re-
quested but not supplied. He agreed that at one point
Maldanado proposed extending the existing contract for a
year. He also testified that he responded by telling
Maldanado that to consider this proposal, would the Union
be willing to eliminate seven positions, two lead persons,
two janitors, and the function of the P.P.A.s. Maldanado said
the Union would not be so willing. Vazquez said that if the
seven positions were eliminated, then Shell would be in the
same manpower position as its competitors.
With respect to specific provisions discussed, Vazquez
could not remember exactly what was said. He did remember
mentioning salaries in the range of $9.50 per hour. He char-
acterized his statements at this meeting as being in the nature
of a response to the Union’s March 12 position. He said
Maldanado generally just listened to what he proposed. This
description of what happened at the meeting is not supported
by Vazquez’s notes of the meeting, Respondent’s Exhibit 5
nor is it mentioned in any detail in any of the letters that
followed April 10. The matter of eliminating seven unidenti-
fied positions is mentioned in Vazquez’s notes and I credit
him for mentioning this as a condition to extending the con-
tract. I do not credit his testimony that he added detail about
the seven positions or gave detailed counterproposals to the
Union’s position as of March 12. His memory on these
points is hazy, his notes mention no such detail, nor do fol-
low up letters document any new position of the Company
on any proposal. I instead credit Maldanado’s version of the
testimony except for the matter of conditioning consideration
of the contract extension on the agreement to eliminate seven
unit positions.
Joint Exhibit 24 is a letter from Vazquez to Maldanado
dated April 11, which states:
As you know, since March 12, 1991, you have not
made yourself available to continue the negotiations.
145SHELL CO.
6 This letter does not mention the seven positions to be eliminated.
It does make reference to a report which Maldanado sent to the
International Union with respect to the negotiations. This report,
dated March 22, 1991, generally affirms Maldanado’s testimony re-
garding events taking place up to the date of the report. It also indi-
cates that he recognizes based on Shell’s proposals that some em-
ployees will lose their jobs and that some classifications of employ-
ees will be eliminated. Maldanado also sent in some of the letters
that had passed back and forth and other information and asked ad-
vice on how to proceed. He stated:
The postponement of the meetings was done to evaluate and file
this report to get advise. I believe . . . our obligation at one
point to return to the bargaining table will depend on the Union
having the information needed to bargain intelligently and the
company has taken the position to deny because it is confiden-
tial or considers it irrelevant to the negotiations.
This notwithstanding the fact that we have made our-
selves available at all times to discuss all the non-eco-
nomic and economic articles which are pending. On
various occasions, and for more than one month, you
have indicated that you cannot meet to negotiate be-
cause you are waiting for the advise from the Inter-
national Union. In view of the above, we suggest that
the International representative in charge of this matter
coordinate through you a meeting, which can be in
Puerto Rico or the United States, at your convenience,
to discuss this matter and reach a mutually satisfactory
agreement. Please advise us as to the dates you and the
International representative have available and where
you would like the meeting to be held, in order that I
may confirm back to you as soon as possible.6
Joint Exhibit 27 is a letter from Maldanado to Vazquez
dated April 17, which states:
My letter of March 15, 1991, requesting postponement
of negotiations until further advise is clear in its intent
and purpose. You have questioned my right as Rep-
resentative of the IAM&AW to get advise under the
NLRA at the Board thru Case 24–CB–1575. In a [sic]
future the Board will express itself if under the present
situation the postponement and the reason for it is prop-
er under the NLRA. On the other hand, we had a meet-
ing of almost 4 hours on April 10, 1991; we both went
over several matters dealing with the labor contract. I
requested to be advised of the company’s reaction to
our discussion at this meeting, you did not do so, but
instead you sent the letter of reference. Since in our
meeting you never expressed the company or you want-
ed another representative of the IAM involved in our
affair, I was not able at this meeting to request expla-
nation of the reason or reasons for. Therefore, in a way
to properly understand the request, please advise what
is the specific matter or matters you want the so called
International representative to discuss.
Joint Exhibit 28 is a letter from Vazquez to Maldanado
dated May 6, which states:
The clearness of your letter requesting postponement of
the negotiations will not be argued against in this letter.
Such event will be solved in another forum. There are
two other issues in your letter that require clarification.
In our informal meeting of April 10, many matters were
mentioned and some positions modified as I’m sure you
remember. However, the main Company objectives
were reaffirmed and your only answer was that you
must wait for the advise from your International Head-
quarters. In fact you refused to ever discuss non-
economic items which still remain open. We analyzed
such position vis-a-vis the situation that the negotiations
are postponed. We reacted by offering our availability
and willingness to meet with the person who provides
you with advise, through your coordination. We con-
sider that such a meeting, coordinated thru you could
expedite these negotiations. Once again, I invite you to
confirm a date to negotiate.
Joint Exhibit 29 is a letter from Vazquez to Maldanado
dated May 15, which states:
This will confirm our telephone conversation of Mon-
day May 13, 1991. As you know, it was not possible
to coordinate a meeting to discuss pending grievances
because I’ll be leaving Puerto Rico today and you were
not able to meet yesterday, as I suggested. You also in-
dicated that you will not be available the week of May
27, when I’ll be in Puerto Rico, unless one of your en-
gagements was canceled. If in fact this occurs, please
call my secretary who has instructions to give you first
priority on my calendar for that week. Once again I
urge you that we meet to continue negotiations and that
we use any available time for this purpose, instead of
utilizing said time to discuss the few pending griev-
ances. In fact, Mrs. Ana T. Battle can act as spokes-
person for the Company at any meeting you can coordi-
nate during the time I’ll be outside Puerto Rico (May
15 thru May 27). The only way we can negotiate is to
meet for that purpose. The very least you can do is to
meet with Mrs. Battle, attorney Reyes Gilestra and my-
self, to discuss open articles and sections at a time and
place you deemed appropriate.
Joint Exhibit 30 is a letter dated May 17, 1991, from
Vazquez to Maldanado, which states:
Reference is made to your letters dated May 3, May
6, and May 15, 1991. Please let the record show that
the company suggested dates to meet to discuss Catano
pending grievances in response to my request were friv-
olous in view that the company had knowledge that I
was not available before the letter was prepared.
On the matter of the Airport pending grievances I
confirmed twice to the company your suggest date of
May 15, 1991. To my surprise, when you returned my
call you expressed that could not meet because in the
morning you will have a meeting with Ports Authority
and in the afternoon you were going to Houston. I re-
quested new dates and we were unable to select one
due to professional commitments. I informed you that
on the week of June 3, 1991, I was scheduled to go to
the USA to be hospitalized and I indicated I will con-
tact you upon my return to schedule the grievance
meeting. Please let the record show that prior to our
conversation in return to my call your secretary neither
you had advised that your suggested date to meet on
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
May 15, 1991, was no longer available. Mr. Vazquez,
to process employee’s grievances is an important proc-
ess that we must do on behalf of the workers. Please
clarify if the company position is not to discuss the
pending grievances and other contract related problems
but only to negotiate on a new agreement. In our tele-
phone conversation you never mentioned the subject of
bargaining on the new contract. I am sorry I lost the
opportunity while we were on the phone to remind you
that on our meeting of April 10, 1991, I made the pro-
posal to have one year of contact extension under some
conditions. I requested and you agreed to take this pro-
posal back to the highest level of management and to
call me back about their evaluation but so far no infor-
mation has been provided.
Ruben, you indicated that the only way we can nego-
tiate is to meet for that purpose. I must assume that you
mean to say to negotiate in good faith with the purpose
of reaching an agreement; being that the case, please
submit the information requested by the Union on Feb-
ruary 25, March 8, and March 15, which is needed to
properly and intelligently represent the workers. I hope
you will provide the information which will help the
Union to understand the bad financial condition of the
company and the request to assist the company that was
made; matter we committed ourselves subject to the
company justification. Upon my return, I will study the
information to get ready to coordinate a meeting to bar-
gain on the open articles and sections at a mutually
agreeable date, time and place.
Joint Exhibit 31 is a letter from Vazquez to Maldanado
dated May 30, 1991, which states:
This will acknowledge receipt of your letter of May
17, and read yesterday upon my return to San Juan. My
letter of Friday, May 3rd, regarding open dates to dis-
cuss grievances was sent to you by hand that date. Un-
able to find you, it was left by the messenger on the
mailbox and then sent by Certified Mail the next Mon-
day.
The dates were a proposal of the availability, at the
time, of the Plant Superintendent and myself. I received
no answer from you until your call to my secretary,
May 13, at 9:15 AM and again at 12:12. By that time,
The Ports Authority of Puerto Rico had requested my
presence at a meeting at 9:00 May 15, which I had to
accept, specially not hearing from you. This was in-
formed to you on the afternoon of May 13 on the
phone. The afternoon of may 15 was never offered as
an alternative because of my trip to Houston.
We agree that the discussion of grievances is as im-
portant as discussing a new agreement. That is why we
fail to understand your total unavailability to meet to
continue negotiations while you are readily available to
discuss grievances. Your proposal on April 10, to ex-
tend the contract for one year was rejected there, since
you clearly rejected the minimum conditions required to
consider your offer.
We have provided you with all the relevant informa-
tion necessary to negotiate. It seems incongruent that
you allege you need information to negotiate a new
contract, but, on the other hand, you don’t need any in-
formation to propose an extension for one year of the
contract that expired on March 16, 1991.
The Company has demonstrated good faith through-
out these negotiations as for example, when it informed
you that we would maintain, for the time being, the
economic conditions of the terminated contract. This
has been to no avail since you have continuously re-
fused to sit at the table since March 12, 1991.
After we started negotiations, our spokesperson, Mrs.
Ana T. Battle, was hospitalized and in recuperation for
almost seven weeks. All this time the company’s com-
mittee made itself available to negotiate, and in fact ne-
gotiated without any interruptions. Moreover, on my
last letter dated May 15, 1991, I mentioned to you that,
if you could find an available date for negotiations dur-
ing my absence, Mrs. Battel and the rest of the commit-
tee woul be available to do so.
This attitude of the Company greatly differs from
your position, confirmed in our telephone conversation
of today, that you will not designate a substitute during
your absence. This is even more dramatic since you in-
dicated that you had no idea as to the length of your
absence. We understood that the spokesperson the
Union would be Mr. Lou Brogna, but your position was
adamant that there would be no substitute for the
union’s spokesman.
Joint Exhibit 32 is a letter dated May 31 from Maldanado
to Vazquez, which states:
This is to confirm our yesterday, May 30, 1991, con-
versation by telephone whereby you requested to know
who is my replacement during the time I will be out
of Puerto Rico from June 3, 1991, on for reasons pre-
viously explained to you. I told you that no one will
be replacing me—you insisted and took the position to
assume that Brother Lou Brogna was my replacement
during this period of time because it was not proper not
to have a replacement. Once again I responded that you
could assume whatever you wanted but he was not my
replacement. Finally you indicated you will write him
a response to my letter dated May 17, 1991.
I made an invitation for the company to review its
position of trying to destroy the Union and to bust it
from the company in view of the company’s conduct
during this negotiation. You replied that was not the
case but it was a matter of company survival, a matter
where all were trying to survive, but anyway you were
to think about my invitation, which I hope you do,
Ruben, and I will add, think about of over 23 years of
good labor relationship where we used to deal in a
positive environment; not always it went the company
way but neither the union way. We dealt in a mutual
respect environment—no one ever showed or tried to
show any muscle.
May I use this opportunity to request the company
to provide copy of the Economic Study on
Compeitiveness in the Market, needed by the union to
properly and intelligently represent the workers.
147SHELL CO.
E. The June 24 Letter Announcing Implementation of
Respondent’s Final Offer and Implementation
In a letter dated June 24 (Jt. Exh. 33), the Company noti-
fied the Union that it planned to subcontract not only the
sealing (P.P.A.) function, but all the so-called filling station
duties of the plantmen. It also gave similar information about
the janitors. This letter states:
On January 3, 1991, we met with you to anticipate
the Company bargaining position for the upcoming ne-
gotiations with your Union. At that time, we expressed
that Shell had determined it was of the utmost impor-
tance that the salaries and other working conditions of
the Collective Bargaining Agreement be reviewed to
bring them to a level where Shell would be competitive
in the industry.
During the negotiations, Shell has maintained the
same goals it had anticipated to you. At the time of the
expiration of the Collective Bargaining Agreement,
March 16, 1991, we informed you that the Company
would maintain, for the time being, the economic con-
ditions of the agreement with the hope that this would
facilitate the conclusion of the negotiations. However,
more than three months have passed since the agree-
ment expired and our last negotiation meeting.
You had hinted, and on April 10, 1991, you ex-
pressed, that the Union would accept an extension of
one year of the Agreement under the same conditions.
This was rejected at the time by me and was recon-
firmed by our letter of May 30, 1991. However, your
total unavailability to meet is producing the result that
in effect the contract is being extended indefinitely.
Through your attitude, you have created a deadlock in
the negotiations and have left the Company with no
other alternative but to submit its final economic offer,
which will be implemented on July 1, 1991.
Enclosed there is a copy of our final offer, including
the articles which have already been agreed to, and the
rest of the articles as will be implemented by the Com-
pany on July 1, 1991. In addition, I am enclosing the
Work Schedule for the Catano and the Airport plants,
which will be in effect immediately. You will note that
Shell has retained only the positions that are necessary
to perform its work at both sites at the present time. In
addition, the position of janitor and the functions of the
P.P.A.s will be subcontracted, while the functions of
the leadworker will be eliminated as I advanced to you.
These changes are consistent with the situation applica-
ble to our main competitors.
If you have any question or doubt concerning what
is expressed in this letter or in the documents that are
being enclosed, please contact the undersigned at your
convenience.
Implementation began immediately. The janitorial and
P.P.A. functions were turned over to subcontractors on June
25. Subcontractors had been contacted some time in advance
of the June 24 letter for bids on the work involved. For ex-
ample, the Company that was awarded the P.P.A. function
submitted its bid as early as March. On June 24, the Com-
pany met with employees working that day and told them
personally that it was going to implement its final offer. On
this date, it also sent letters to those employees who were
being discharged pursuant to the implementation, notifying
that they no longer needed to report to work and offering to
pay them for the remaining portion of their work week. An
outline of what the Company considered the major points of
its final offer was sent to unit employees on June 27, noting
the substantial changes in their pay, benefits, vacations, over-
time, and other matters, and pointing out these changes
would be effective on July 1. As noted earlier, an item by
item comparison of the relevant provisions of the expired
contract, the pre-June 24 proposals and the implemented final
offer is set forth in Appendix A to this decision.
On July 1, the Union sent the Company a letter (Jt. Exh.
39), its first response to the June 24 announcement, which
states:
Reference is made to your letter dated June 24, 1991.
Please be advised that this organization thru the under-
signed takes the position that your statements in the
first, second, and third paragraphs do not represent the
facts as we have had talked. In reference to your fourth
paragraph, this organization will review that and will
take whatever steps we have under the law to protect
rights and benefits of the employees.
The letter then requests, inter alia, the following informa-
tion:
(5) Provide copy of the contract between Shell Com-
pany and the subcontractor company. If no contract ex-
ists, explain in detail the specific condition in which the
subcontract of work will be performed.
(6) Provide the names, address, rate of pay and bene-
fits that the employees performing the subcontracted
work receive, and what rules of conduct they will be
guided from.
(1) Is it true or not that the Shell Company will pro-
vide petroleum products to the customers in the East
and South side of the Island from Guayanilla? If the an-
swer is yes, provide the effective date and copy of any
contract. Did Shell purchase any equipment for the pur-
pose? When was the equipment purchased and when
was it received?
(2) Provide the number of employees that will be
used by the subcontractor company to perform unit
work.
Maldanado testified that this information was necessary for
the Union to bargain over the subcontracting of the involved
work.
Joint Exhibit 40 is a letter from Vazquez to Maldanado
dated July 15, which states:
This is to acknowledge receipt of your letter dated July
1, 1991. We are in the process of analyzing your re-
quest and will give you an answer as to our position
with the course of next week.
Joint Exhibit 41 is a letter from Vazquez to Maldanado
dated July 26, and states:
The Company has provided the Union with all the
information that it has sought and to which it is entitled
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 It did not include the comparative study appended to this deci-
sion as Appendix B.
under the National Labor Relations Act. There is cer-
tain information which we maintain we are not under
the legal obligation to submit to your organization in
connection with the collective-bargaining process.
Nevertheless, since you have used this as an excuse,
highly untenable, to refuse to negotiate with the Com-
pany, we voluntarily submit the following so that you
will not have a reason to continue refusing to negotiate.
Enclosed you will find the Financial Statements from
years 1987 thru 1990 duly audited and endorsed by
Price Waterhouse, the external auditors. As expressed
by you in your letter of March 8, 1991, we expect ex-
treme confidentiality with these documents from you
and your organization.
. . . .
The information provided covers your requests for
information in your letters dated February 25, 1991,
and March 8, 1991.7
Joint Exhibit 42 is a letter to Maldanado from Vasquez
dated August 6, 1991, which states:
Reference is made to your letter dated July 1, 1991.
Your remarks referring to our letter of June 24, 1991,
regarding the first three paragraphs surprised us. The
statements on those three paragraphs are absolute facts.
No comment will be made at this time regarding your
review of our final offer.
However, you have requested some information, that
we will provide:
P.P.A.—This function has been contracted with Car-
ibbean Petroleum Inspectors, Inc. which were contacted
by phone on June 24, 1991, and started performing the
job the next day. The charge is $4.50 per truck includ-
ing all materials, and are covered by a purchase order.
This is similar to what our main competitors do.
Janitor—Catano Plant is using contractor Ismael
Vizcarrondo, an average of two man hours per day
intermittently and as necessary since June 25. The Air-
port Plant is likewise using contractor Lee Nadal an av-
erage of three hours per day to perform the minimum
tasks the job requires intermittently since June 25.
These are temporary arrangements until contracts
with janitorial services type contractors are completed.
This is now in the bid stage. Until then, these services
are covered by purchse orders. Both Plants are paying
approximately $10.00 per hour for the hours effectively
worked.
With this information and one previously provided,
we expect that you are now in a position to meet with
us concerning the Collective Bargaining Agreement,
and to this effect we invite you to a meeting on
Wednesday, August 14, 1991, at the ‘‘Negociado’’ at
2:00 p.m. to restart negotiations. However, if this date
is not convenient to you, let me know when you can
meet.
Joint Exhibit 43 is a letter from Maldanado to Vazquez
dated August 15, 1991, which states:
In reference to your July 26, 1991 letter, please be
advised of the following:
The company, by its own admission in this letter,
has not fully complied with its obligation as per Case
24–CA– 6335. Furthermore, since it is not up to the
Union to determine the confidentiality of the received
financial statement, please inform if the company per se
considers this document to be confidential and the rea-
son for. In addition, inform the people, agencies, of-
fices, etc., which have been exposed to this document.
In our last telephone conversation I informed you that
the Union was planning to submit these documents to
a financial expert in the matter for study, analysis and
guidance so that we can intelligently represent the best
interests of the workers. Arguendo that finally these
documents are considered confidential, the question is:
Will the company consider the Union breaking the con-
fidentiality by providing copy to a financial expert as
explained above?
On August 15, the Union sent a letter (Jt. Exh. 44) to the
Company requesting certain additional information relating to
Respondent’s admission that it was subcontracting the work
formally performed by its janitors and P.P.A.s, including:
(1) Who supervises the employees and the operation,
or from whom they receive their orders or instructions
on a daily basis.
P.P.A.
(1) How many trucks at $4.50 are serviced daily and
weekly? If the amount varies on a weekly basis, then
also provide the information by month.
(2) How many employees does Caribbean Petroleum
have, their shift of work, amount of hours, working—
daily and weekly?
(3) Please respond to my question on No. 6 of my
letter of July 1. If you are not going to respond, explain
why. Who supervises the employees or from whom
they receive orders or instructions on a daily basis?
(4) Please explain if you have a written contract with
Caribbean Petroleum; and if your main competition has
a written contract, and if you have a copy of them.
(5) Provide copies of purchasing orders since June
25 on.
(6) Please inform if they bill you on a weekly or
monthly basis, and provide copies including copy of the
payments made.
Janitor
(1) Please respond to my question No. 6 of my letter
of July 1. If you are not going to respond, explain why.
(2) Provide copies of the service purchase orders
covering the periods since June 25 on.
The August 15 request also requested Respondent to fur-
nish the Union with, inter alia, the following additional infor-
mation relating to Respondent’s operations in Guayanilla,
Puerto Rico:
(1) Inform all the charges made by the subcontractor,
if any. Copy of the service purchase orders; if it does
149SHELL CO.
not cover all charges, provide additional documents to
cover all charges.
(2) Provide the name of the subcontractor.
(3) How many trucks are serviced from that area
daily and weekly? If the weekly amount fluctuates, then
by month.
(4) Name the different towns that are serviced from
the South operation.
Joint Exhibit 45 is a letter from Vazquez to Maldanado
dated September 4, which states:
In reference to your letter of August 15, 1991, re-
garding the PPA’s and the Janitors, this is part of the
issues in the complaints in the NLRB, Cases 24–CA–
6335 and 24–CA–6364. Therefore, since you have cho-
sen said course of action, answering you these points
serve no purpose.
However, if what you pretend is to resolve these
matters at the bargaining table, which has been the
Company’s position throughout this period, please con-
tact the undersigned to schedule a meeting.
Joint Exhibit 46 is a letter from Vazquez to Maldanado
dated September 4, which states:
In reference to your letter of August 15, 1991, please
be advised that the Union may submit the Financial
Statements provided by the Company to a financial ex-
pert for study, analysis and guidance. As to your com-
ments regarding the Company’s admission, this is your
subjective and biased opinion and we stand by our
statements in the letter of July 26, 1991.
Joint Exhibit 47 is a letter from Maldanado to Vazquez
dated September 20, 1991, which states:
Acknowledge receipt of your letter dated September
4, 1991. Please be informed that your letter has no ref-
erence at all to the following language in my letter of
August 15, 1991, and I quote:
Furthermore, since it is not up to the Union to de-
termine the confidentiality of the received financial
statement, please inform if the company per se con-
siders this document to be confidential and the rea-
son for. In addition, inform the people, agencies, of-
fices, etc., which have been exposed to this docu-
ment.
I will appreciate your response to these questions. If
you are not going to respond, please explain why.
Joint Exhibit 50 is a letter from Maldanado to Battle,
dated October 1, 1991, which states:
Acknowledge receipt of your letter dated October 1,
1991 on the above referenced matter (the closing of the
Airport operation). Please provide the following infor-
mation necessary for the Union to fulfill its bargaining
obligation.
1. When the decision to close the airport operation
was made and by whom?
2. What is the reason or reasons for closing the oper-
ation?
3. Did the company think about any alternatives?
What were they, if any?
4. What future plans does the company have for this
airport operation, if any?
5. Is the company planning to subcontract this facil-
ity? If yes, to whom and when?.
Please provide this information within 5 days from
receiving this communication. Upon receiving your re-
sponse the Union reserves the right to request further
information, if needed.
Vazquez sent Maldanado a letter dated October 7 (Jt. Exh.
51), which states:
I make reference to your letter of September 20,
1991, regarding the financial statements. In our letter of
March 1, 1991, we argued that the statements were con-
fidential, the reason being the obvious value that our
competitors have for this document. Therefore, since
you requested the same, it is your responsibility person-
ally and of your union, to guarantee the confidentiality
of this document. Specifically, since you represent the
employees of one of our main competitors with whom
you are presently negotiating.
According to my information, besides the Manage-
ment of Shell Puerto Rico, the following persons have
also been exposed to this document: Price Waterhous
(external auditors), our Shareholders, The State Depart-
ment and the IAM Union.
Again, Mr. Maldanado, this document is confidential
for us and has been provided to you upon you insist-
ence that they were necessary for negotiations, even
though we have recently indicated that Shell has not al-
leged inability to pay. Notwithstanding that the finan-
cial statements have been provided since July 26, 1991,
three months have elapsed and you still have made no
genuine effort to properly address the pending issues.
Joint Exhibit 52 is a letter from Battle to Maldanado,
dated October 9, 1991, which states:
We refer to your letter of October 4, 1991, related
to the above subject. As undoubtedly is of your knowl-
edge, presently SPR (Shell Puerto Rico) has lost just
about all of its aviation business. The reasons are varied
as mentioned to you in various occasions in which SPR
have been obliged to lay-off personnel. However, for
your quick reference, this includes the loss of business
to competitors (American Airlines, U.S.Air, BWIA) and
cessation of operations by the airlines themselves (East-
ern Airlines and Mexicana). The recently unsuccessful
bid for all or part of American Airlines business was
the latest setback. In view of the well known situation
affecting SPR aviation business, the painful decision to
withdraw from that market was taken by SPR Manage-
ment Team presided over by its Managing Director.
Again, well known to your SPR tried in every imag-
inable way to continue its presence in the aviation busi-
ness. The above position has been conveyed to you per-
sonally, offically during bargaining agreement meetings
and informally during personal meetings. Needless to
say, we were all surprised at the apparent indifference
150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 As will be discussed in a another section of this decision, this
offer differed significantly from the last offer on the table, and fur-
ther, no notice and opportunity to bargain was given of the ‘‘offer’’
as it was implemented simultaneously with its announcement.
9 See also Concrete Pipe & Products Corp., 305 NLRB 152
(1991); Ameron Bike Products, 305 NLRB 105 (1991); Georgia-Pa-
cific Corp., 305 NLRB 112 (1991); Burruss Transfer, 307 NLRB
226 (1992).
shown by you at getting to the core of the situation.
Your dilligence was only evidenced in constant requests
for massive information related SPR overall operations,
and the activities related to the petition to the general
public to boycott SPR products, an action that if it had
been a success could have had negative results for all
SPR employees including those that the Union rep-
resents. However, for the good of all, your attempt
failed.
In view of the eminent cessation of operations at the
airport, SPR is in the process of returning the fixed fa-
cilities to its owner, the Puerto Rico Ports Authority.
As we are well aware of Shell Puerto Rico’s respon-
sibility towards affected employees, we await your re-
sponse to coordinate an appropriate time and date to
meet as previously requested.
Joint Exhibit 54 is a letter dated October 12, 1991, from
Maldanado to Vazquez, which states:
Reference is made to your letter dated October 7
1991 and delivered by hand on October 10, 1991. You
indicated that notwithstanding that financial statements
have been provided since July 26, 1991, three months
have elapsed and I still have made no genuine effort to
properly address the pending issues. As stated to you
before your position to request the Union or to expect
the Union to return to the bargaining table is frivolous
and I will add superficial since the company has re-
fused to properly comply with the NLRB findings in
the charges for refusal to provide the Union will all rel-
evant and necessary information for the Union to prop-
erly bargain. Furthermore, your company had unilater-
ally and illegally implemented a contract on July 1,
1991. You must first comply with legal obligations be-
fore questioning the Union.
F. Did the Respondent Lawfully Refuse to Comply with
the Union’s Information Requests, and Was Its
Declaration of Impasse Lawful?
As noted above, on June 24, the Company announced that
it considered the negotiations deadlocked by the Union’s
continuing refusal to meet and further announced that be-
cause of the deadlock, it was implementing the terms and
conditions of its so-called final offer on July 1.8 The letter,
though not saying so explicitly, declares an impasse in nego-
tiations, caused by the Union’s actions. The Union refused
to meet after March 12 primarily because of its position that
it could not bargain intelligently absent the financial informa-
tion and comparative study information it had sought since
early in negotiations. As Respondent continuously contended
that it had no legal obligation to supply such information, a
determination must be made on that issue before one can de-
cide whether impasse was properly declared.
Respondent relies on the Board’s decision in Neilson
Lithographing Co., 305 NLRB 697 (1991), and cases cited
therein in support of its refusal to supply the information re-
quested by the Union, and its subsequent implementaton of
what it terms its final offer.9 I believe that it is wrong on
both counts.
In Neilson Lithographing, the Board was faced with a situ-
ation similar on its face with the instant case. An employer
was alleged to have violated the Act by refusing to supply
financial information to the involved union during negotia-
tions, and then implemented its last offer. The union claimed
that the implementation was unlawful, inter alia, because the
employer had refused to provide the information which it as-
serted was relevant to its role as bargaining representative.
As stated by the Board in Nielson Lithographing:
In this connection, NLRB v. Truitt Mfg. Co., 351 U.S.
149 (1956), holds that ‘‘a refusal to attempt to substan-
tiate a claim of inability to pay increased wages may
support a finding of a failure to bargain in good faith.’’
351 U.S. at 153. The Court cautioned:
We do not hold, however, that in every case in
which economic inability is raised as an argument
against increased wages it automatically follows that
the employees are entitiled to substantiating evi-
dence. Each case must turn upon its particular facts.
Thus, not every claim of inability to pay will result
in an obligation to supply substantiating information. In
the instant case, as shown below, the Respondent was
not even making a claim of inability to pay.
We find that the Respondent’s claim of competitive
diasadvantage is not the same as a claim of financial
inability to pay. Thus, the claim does not raise any obli-
gation under Truitt to turn over the requested informa-
tion.
. . . .
We agree with the court’s observation in Harvstone
that an employer’s expressed view that its current eco-
nomic position vis-a-vis competitors would lead to an
eventual inability to pay beyond the intended contract
term is quite different from an employer’s insistence
that a union’s current bargaining demands are precluded
by its condition at the present time or within the in-
tended contract. 785 F.2d at 577 fn. 6. Analogously, the
Board in Buffalo Concrete, 276 NLRB 839 (1985),
enfd. 803 F.2d 1333 (4th Cir 1986), found no duty by
the employers to disclose financial information where
their claim that they were not competitive amounted to
an unwillingness, rather than an inability, to accept the
union’s bargaining proposals. The lesson of both
Harvstone and Buffalo Concrete is that an employer’s
obligation to open its books does not arise unless the
employer had predicated its bargaining stance on asser-
tions about its inability to pay during the term of the
bargaining agreement under negotiation.
The difference between the two types of claims is
critical. The employer who claims a present inability to
pay, or a prospective inability to pay during the life of
the contract being negotiated, is claiming essentially
that it cannot pay. By contrast, the employer who
151SHELL CO.
claims only economic difficulties or business losses or
the prospect of layoffs is simply saying that it does not
want to pay.
We do not say that claims of economic hardship or
business losses or the prospect of layoffs can never
amount to a claim of inability to pay. Depending on the
facts and circumstances of a particular case, the evi-
dence may establish that the employer is asserting that
the economic problems have led to an inablilty to pay
or will do so during the life of the contract being nego-
tiated.
. . . .
The distinction has always been between claims of
‘‘can not’’ and ‘‘will not.’’ We would not abandon that
distinction in favor of a new distinction.
. . . .
We therefore conclude that an employer’s obligation
under Truitt to provide a union with information by
which it may fulfill its representative function in bar-
gaining does not extend to information concerning the
employer’s projections of its future ability to compete.
We consider that obligation to arise only when the em-
ployer has signified that it is at present unable to pay
proposed wages and benefits. We do not equate ‘‘in-
ability to compete’’ wherether or not linked to job loss,
with a present ‘‘inability to pay.’’ [305 NLRB at 699–
701.]
Looking at the facts of this case with the Board’s direction
in mind, I believe that at least part of Respondent’s proposals
were predicated on a present inability to pay and that mes-
sage was clearly given to the Union. The Company first
made the point that it was presenting its proposals in two
parts, one relating to the airport operation and one for the
Catano plant. It then proceeded to give different justifications
for its proposals depending on whether it was speaking about
the airport or Catano. I will agree that Respondent’s state-
ments with respect to Catano do not meet the Board’s test
as enunciated in Neilson Lithographing. Although Respond-
ent clearly gave the impression that it would not survive at
Catano unless it became more competitive with Esso and
Texaco, there is no clear indication that this end would be
reached during the duration of the contract under consider-
ation. However the situation is far different at the airport.
The Company’s situation at the airport was continually de-
scribed as ‘‘critical’’ and a matter of ‘‘survival.’’ Critical
certainly denotes a degree of urgency or crisis, and when
used with survival, denotes a situation in medical terms that
would indicate the patient is in imminent danger of dying,
or in the case of the airport operation, closing down. I do
not think a reasonable person could hear Respondent’s rep-
resentatives describe the airport situation as critical and one
of survival, and believe that they were speaking of some
event that might occur at some point 3 years or more in the
future. Therefore, I find that at least with respect to the air-
port, the Company was not saying that it would not pay the
existing contract wages and benefits and live with the exist-
ing working conditions; but rather, that it could not pay them
and live with them and survive, even in the immediate fu-
ture. And of course, history proved that they were correct as
the airport facility was closed in October 1991.
That the Respondent may have had the resources to con-
tinue the airport operation at a loss for an indefinite period
of time if it chose to squander its resources in this way is
not a valid argument that it was thus able to live with the
existing contract at the airport. It chose in negotiations to ask
that the two be treated differently, and I believe they should.
At least in this regard, this case is similar to one in which
a company seeks wage concessions at a plant which is at
least marginally profitable and at which it seeks to become
more competitive, and attempts to secure such concessions
by pointing to the consequences of not making concessions,
noting another of its plants that is failing and closing. See
Facet Industries, 290 NLRB 152 (1988), a case in which
such a point was made and the Board held the employer was
obligated to supply financial information to a union to justify
its bargaining position of wanting to become more competi-
tive.
Under the circumstances here presented, I find that under
Truitt, and under Nielson Lithographing, Respondent had a
duty to supply the financial information requested, to support
its position with respect to the airport facility. Such informa-
tion may have provided several fertile grounds for collective
bargaining. First, it may have justified the Company’s claims
with respect to the airport, and the Union would have been
forced to recognize that the ‘‘well had run dry’’ at that facil-
ity. It may have offered insights as to other savings that
might be made at the facility, lessening the degree to which
the Union would be forced to make concessions. It may have
impacted the Union’s willingness to make the concessions
sought at Catano, in order to share the misery and save union
jobs at the airport. In short, it would have better enabled the
Union to bargain intelligently on behalf of the employees
and not from a totally unnecessary state of darkness.
With respect to Catano though, I would not find that the
financial information requested was required by law to be
furnished to the Union, certainly the law required Respond-
ent to furnish the comparative study or survey it was using
to justify its bargaining proposals. In a case also similar to
the one here under consideration, the Board found a duty to
supply such information in cases where the employer seeks
wage and other concessions in order to become competitive,
without pleading poverty. In A.M.F. Bowling Co., 303 NLRB
167 (1991), the employer had prepared a wage survey of
competitors and other companies in its geographic area and
internally relied on that survey to justify its proposals to sub-
stantially cut wages. Though requested to do so by the union
involved, the employer refused to supply this information to
the union, saying only that it needed the concessions to be
more more competitive. In finding such a refusal to be un-
lawful and a subsequent declaration of impasse unlawful, the
Board held:
Rather, based on the Union’s continuing request for
substantiation and documentation regarding the Re-
spondent’s economic proposals, it is clear that the Re-
spondent had an obligation to furnish that information
in its possession which was relevant to and supportive
of the Respondent’s asserted need for concessions. We
emphasize, in this regard, that the Board has consist-
ently required employers to provide any wage surveys
on which they have relied in the formulation of their
bargaining proposals when the Union requests such in-
152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 As I have found earlier, this information was required by Puerto
Rico’s corporation laws to be filed with its Secretary of State and
made available to the public on demand. Thus, Respondent’s stated
confidentiality concerns do not hold up. Moreover, this information
was placed in this public record without requests for confidentiality,
further undermining the confidentiality assertion.
formation. [Mobil Exploration & Production U.S., 295
NLRB 1179 (1989).] The record establishes that the
Respondent conducted surveys comparing Lowville
wage rates to increases in the cost of living, and in-
creases received by employees performing similar work,
and relied on those surveys in formulating economic
proposals based on its conclusion that Lowville wages
and benefits were too high. Yet the Respondent never
disclosed to the Union that it had such data in its pos-
session. Further, when the Union requested any sub-
stantiation or documentation for the Respondent’s eco-
nomic proposals, the Respondent failed to provide this
information. Although this cased does not present the
issue raised in the inability to pay cases, the Supreme
Court’s observation in NLRB v. Truitt Mfg. Co., 351
U.S. 149, 152–153 (1956), is applicable:
Good-faith bargaining necessarily requires that
claims made by either bargainer should be honest
claims . . . . If such an argument is important
enough to present in the give and take of bargaining,
it is important enough to require some sort of proof
of accuracy.
Thus, the Respondent has obstructed the bargaining
process by making bargaining demands certain to en-
sure difficult negotiations and then concealing from the
Union information which at least in part constituted the
basis for the Respondent’s proposals.’’ Id at 169–170.
For the reasons set forth above, the Board concluded that
the Respondent violated Section 8(a)(5) of the Act by
failing to provide the Union with the wage surveys it
conducted to justify the necessity for the substantial
economic reductions contained in its bargaining propos-
als. Because the Respondent’s unlawful conduct pre-
vented a valid bargaining impasse from occuring as the
Respondent claimed, we adopt the Judge’s findings that
the Respondent also violated Section 8(a)(5) by . . .
making unilateral changes and by refusing to provide
certain requested information to the Union. Id at 167.
I find that the Board’s holding in A.M.F. Bowling Co., is
controlling under the facts of this case with respect to the
Respondent’s duty to supply the comparative study it pre-
pared and relied on. I would further note that there is nothing
inherently wrong with seeking employee concessions, even
major concessions, if they are necessary and are bargained
for in good faith. I do not for a moment question the neces-
sity of Respondent’s management to respond to the worsen-
ing situation it faced in its airport operation or to respond to
the economic setbacks represented by the DACO and Envi-
ronmental Agency decisions by seeking employee conces-
sions. What I question from a legal standpoint is the manner
in which it went about securing these concessions, which
were major concessions by any yardstick.
I believe that the bargaining which took place in this case
was a not in good faith, and that the lack of good faith was
on the part of the Company, not on the part of the Union
as asserted by the Respondent. It appears to me that Re-
spondent had set goals it was intent on achieving and achiev-
ing an agreement through collective bargaining was of sec-
ondary importance at best. The stances it took before nego-
tiations and during negotiations seem to me to be aimed at
inducing or forcing impasse so its contract goals could be
implemented as formulated. At the January 3 meeting, the
Company painted a bleak picture for Maldanado and secured
his pledge that the Union would help if the Company justi-
fied its condition. Yet during negotiations, the Company in-
troduced its proposals, calling for major changes, in a piece-
meal fashion, and without any justification whatsoever. Al-
though in its communications to employees (see Jt. Exh. 9),
it speaks of survival and of changes necessary to ensure the
future of employment with the Company, it repeatedly said
during negotiations that it simply sought concessions to be-
come more competitive. This position seems to me to be
more a legal one, based on a reading of the Board’s holding
in Neilson Lithographing and similar cases, than one de-
signed to gain union cooperation in securing concessions.
Where is good faith to be found in the refusal to supply
the information which could justify the concessions, that is,
the financial information and comparative studies sought by
the Union? The information sought was readily available to
the Company and at least the comparative study was heavily
relied on by it to formulate its proposals. During negotia-
tions, Maldanado to no avail repeatedly asked for the Com-
pany to put its cards on the table, seeking in part the jus-
tification he was promised in the January 3 meeting. The
pieces of information sought were vital cards for meaningful
negotiations and refusal to show them bespeaks bad faith, not
a desire to reach a negotiated agreement. No reasonable busi-
ness reason was advanced to justify the refusal to supply the
financial information, which in passing I note would have
tended to support the position of the Company.10 No reason
whatsoever was given for refusing to supply the comparative
study.
The Company makes much of its continued offers to nego-
tiate and of the Union’s virtual refusal to meet. The Union’s
refusal to meet was conditioned on the Company supplying
the information requested, primarily the financial information
and comparative studies. I believe it is disengenuous for the
Company to claim the Union was not bargaining in good
faith by refusing to meet when it knew that to hold the
Union’s feet to the fire all it had to do was supply the infor-
mation requested by the Union. Its actions in refusing to sup-
ply the information under the circumstances indicates to me
that the Company was perfectly happy with the Union’s con-
tinuing refusal, a refusal it obviously believed would give it
an excuse to implement the changes it sought in the contract
between the parties. When one abandons the precepts of
good-faith bargaining, it appears to cause one to lose sight
of what can be obtained by engaging in good-faith
negotitions. Had the Company simply provided the informa-
tion sought in a timely fashion, the Union would have been
in position to negotiate and would have had to negotiate. An
agreement containing concessions may have been obtained
through mutual consent. If the company and the Union bar-
gained in good faith, as Maldanado put it, ‘‘with all the cards
153SHELL CO.
on the table,’’ and an impasse was reached, the Company
could have lawfully implemented its final offer.
However, it did not bargain in good faith by refusing to
supply the Union with the financial information and com-
parative studies sought by the Union, and thus engaged in
conduct in violation of Section 8(a)(5) and (1) of the Act.
As I have found it engaged in such unlawful conduct, Re-
spondent’s declaration of impasse on June 24 was similarly
unlawful.
G. Did Respondent Give the Union Notice and an
Opportunity to Bargain Over Its ‘‘Final Offer’’
Before Implementation?
Although I have found that Respondent unlawfully de-
clared impasse on June 24, and therefore could not unilater-
ally implement its ‘‘final offer’’ or otherwise unilaterally im-
plement changes in wages, benefits, and other matters affect-
ing terms and conditions of employment of its unit employ-
ees, I believe the implementation would be unlawful even if
impasse had been properly declared.
I believe that the letter of June 24 did not give proper no-
tice of the final offer and afford the Union an opportunity
to bargain before implementation. I view it as a simple an-
nouncement of a fait accompli. There was no time afforded
to the Union to study the ‘‘final offer’’ and bargain over it,
nor from the wording of the June 24 letter and its announce-
ment to employees on that date, was there any intention on
the part of Respondent to bargain over its terms. The em-
ployees who would lose their jobs pursuant to the imple-
mented offer lost them on June 24. The subcontractors took
over the work of the bargaining unit on the June 25. The let-
ter itself is not couched in terms of an offer to negotiate, but
rather, in terms of the announcement of a done deal.
Moreover, the implemented offer varies significantly from
the terms of the last offer made by the Company in March,
and not just for the better as urged by Vazquez in his testi-
mony. Reference to Appendix A will reveal that, from the
Union’s viewpoint, it is significantly worse than the March
proposals. For example, there is a cap on the Company’s
contribution to the medical plan that was not proposed before
implementation. There is the removal of all safeguards re-
garding the subcontracting of unit work, which existed in the
earlier proposals. This is truly significant as the absence of
such safeguards would allow the Company to subcontract
any bargaining unit work it wished. Absolutely no advance
notice was given to the Union with respect to the imple-
mented subcontracting provision, or lack of one as is the
case here, or the narrower matter of the subcontracting of the
P.P.A. function and the janitorial positions. No advance no-
tice was given to the Union about the elimination of the lead
person position nor the cap placed on the Company’s con-
tribution to the medical plan under the implemented final
offer.
Clearly the matter of eliminating restrictions on sub-
contracting, subcontracting the P.P.A. function and the jani-
torial positions, eliminating the leadperson position(s), dis-
charging the employees affected by the subcontracting
changes and the elimination of the leadperson and janitorial
positions and P.P.A. functions, and imposing a cap on the
Employer’s contribution to the medical plan, all significant
changes, were not encompassed by any proposal made by
Respondent prior to June 24. These were all new proposals
and thus could not be lawfully implemented even if a lawful
impasse had occurred. Storer Communications, 294 NLRB
1056 (1989). Most of the other implemented proposals
changed in one way or the other the pre-March 12 proposals,
in some cases in favor of the employees and in others against
their interest. But the significant matter is that they did
change the previous proposals and therefore were not the
previous offer. Under Board law, Respondent, if it could
have lawfully implemented anything, could have only imple-
mented its last offer. Thus, even as to those items which it
implemented which were more favorable to employees, I find
that its implementation was unlawful and violated Section
8(a)(5) and (1) of the Act. The implementation was also un-
lawful as it was accomplished without proper notice to the
Union and without affording the Union an opportunity to
bargain over the implemented changes. Chas. P. Young
Houston, 299 NLRB 958 (1990); Storer Communications,
supra.
H. Did Respondent Unlawfully Insist to Impasse and
Implement Changes in the Scope of the
Bargaining Unit?
It is well-settled law that the scope of the bargaining unit
is a permissible subject of bargaining and cannot be insisted
upon to impasse or unilaterally changed by an employer ab-
sent union consent. Here Respondent, in part, insisted to im-
passe on its proposal to delete from the scope of the unit and
thus from union representation, the San Juan office and
Guayanilla plant, and the employee classifications of laborer,
leadworker, and janitor. It implemented this proposal in part
on June 24 and in full on July 1. Its actions in this regard
constitute a refusal to bargain in violation of Section 8(a)(5)
and (1) of the Act. Boise Cascade Corp., 283 NLRB 462
(1987); Facet Enterprises, supra; Bozzuto’s Inc., 277 NLRB
977 (1985).
I. Did the Respondent Unlawfully Refuse to Provide
Information Requested by the Union After July 1?
On July 1 and August 15, the Union requested certain in-
formation from Respondent relating to the subcontracting no-
tice in Respondent’s June 24 letter. By letter dated August
6, Respondent provided some of the information requested in
the July 1 letter. The August 15 request reiterated the need
for the information not supplied but requested on July 1, and
some additional information prompted by the information
that was supplied. By letter dated September 4, Respondent
refused to furnish further information in response to the July
1 and August 15 requests, stating:
In reference to your letter of August 15, 1991, re-
garding the PPA’s and the Janitors, this is part of the
issues in the complaints in the NLRB, Cases 24–CA–
6335 and 24–CA–6364. Therefore, since you have cho-
sen said course of action, answering you these points
serve no purpose.
However, if what you pretend is to resolve these
matters at the bargaining table, which has been the
Company’s position throughout this period, please con-
tact the undersigned to schedule a meeting.
The Company has an obligation to bargain over the in-
volved subcontracting as it turns entirely on the matter of
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
labor costs, and has nothing whatsoever to do with a change
in the direction of the business. Thus the Union’s requests
are necessary and relevant to its function as the bargaining
representative. The Respondent’s only reason for its refusal
to supply the remaining information is that the matter is be-
fore the Board and it is thus somehow relieved of its duty
to supply the information. It is before the Board because it,
inter alia, unlawfully implemented changes with respect to
subcontracting and unlawfully refused to supply the Union
with information necessary for bargaining pursuant to earlier
requests. It cannot use its unfair labor practices as an excuse
to commit further unfair labor practices and I find that Re-
spondent has violated Section 8(a)(5) and (1) of the Act by
refusing to supply the involved information.
CONCLUSIONS OF LAW
1. The Shell Company (Puerto Rico) Limited is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. International Association of Machinists and Aerospace
Workers, AFL–CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. At all times since October 18, 1967, the Union has been
the certified representative of Respondent’s employees in the
following appropriate unit:
All production and maintenance employees employed
by the Respondent at its Catano and Guayanilla plants,
at the International airport at Isla Verde and its office
in San Juan, Puerto Rico, as airport attendants, plant
workers and laborers, but excluding office clerical em-
ployees, salesmen, professional personnel, watchmen,
guards and supervisors, as defined in the Act.
4. At all times material to this decision, the classifications
of leadworker and janitor have been included within the
scope of the above described unit.
5. The Respondent has engaged in conduct which violates
Section 8(a)(1) and (5) of the Act by:
(a) Failing and refusing to supply the Union with nec-
essary and relevant information since its requests made Feb-
ruary 25 and March 1, 1991, relating to certain specific fi-
nancial data of Respondent and studies or surveys used by
Respondent as a basis for its proposals made in negotiations
for a collective-bargaining agreement to replace the one that
expired on March 16, 1991.
(b) Failing and refusing to supply the Union with nec-
essary and relevant information since its requests made July
1 and August 15, 1991, relating to specific information about
the subcontracting of work formerly performed by unit em-
ployees.
(c) Since on or about June 25, 1991, declaring impasse in
negotiations with the Union and on that date and thereafter
on July 1, 1991, unilaterally implementing changes in the
wages, hours and other terms and conditions of employment
of the employees in the unit described above, by among
other things, permanently laying off or terminating the em-
ployment of certain employees in the bargaining unit, by
eliminating the classifications and functions of leadworkers,
by changing working conditions of its unit employees and by
reducing and/or changing the wages and fringe benefits of
unit employees, without first negotiating such changes with
the Union. Those employees who were laid off or terminated
include:
Luis M. Diaz Victor L. Cruz
Juan A. Ortiz Carlos I. Perez
Carmelo Pimental Eduardo Rodriquez
Hector Hernandez
(d) Since on or about July 1, 1991, unilaterally altering the
certified bargaining unit by excluding from its scope the
Guayanilla plant and San Juan office and by eliminating ex-
isting job classifications of janitor, laborer, and leadworkers.
(e) Since on or about June 24, 1991, unilaterally sub-
contracting out bargaining unit work formerly performed by
the P.P.A.s and janitors at Respondent’s facilities.
6. The unfair labor practices Respondent has engaged in
and is engaging in are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent is engaging in certain con-
duct in violation of Section 8(a)(1) and (5) of the Act, it is
recommended that it be ordered to cease and desist there-
from, and to take certain affirmative action necessary to ef-
fectuate the policies of the Act.
Having found that Respondent has unlawfully refused to
supply certain information set forth in the complaint, it is
recommended that Respondent be ordered to furnish such in-
formation to the Union.
Having found that Respondent unlawfully changed the
wages, benefits, and other terms and conditions of employ-
ment of the employees in the unit on or about July 1, 1991,
it is recommended that Respondent be ordered to rescind all
of the changes in existing wages, benefits, and other terms
and conditions of employment and restore the status quo
ante. Included in such remedy it is recommended that Re-
spondent make whole its employees for any loss of pay or
other employment benefits that they may have suffered com-
mencing on July 1, 1991, by reason of Respondent’s unilat-
eral changes in its employees’ terms and conditions of em-
ployment, as prescribed in Ogle Protection Service, 183
NLRB 682 (1970), with interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
Having found Respondent unlawfully laid off or dis-
charged certain employees on or about June 24, 1991, I will
recommend that Respondent be ordered to offer them imme-
diate reinstatement to their former or equivalent positions,
making them whole for wages and other benefits measured
under the status quo ante conditions, lost by virtue of Re-
spondent’s unlawful conduct. Backpay to these
discriminatees shall be computed from June 24 to the date
they are offered reinstatement, with one proviso. Certain of
these employees may have been again laid off or dischared
because of the closing of the airport facility in October 1991.
As Respondent’s actions in closing the airport facility are not
alleged to have been unlawful, reinstatement of these em-
ployees may not be possible and the backpay due to those
of the involved discriminatees who would have been laid off
or discharged by virtue of this closing will cease as of the
date of the closing of the airport facility. Backpay to these
employees is to be computed as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest computed in
accordance with New Horizons for the Retarded, supra.
155SHELL CO.
11 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.
12 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
It is further recommended that Respondent be ordered, on
request, to bargain in good faith with the Union over wages,
hours, and other terms and conditions of employment to be
embodied in a new collective-bargaining agreement to re-
place the one that expired on March 16, 1991.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, the Shell Company (Puerto Rico) Lim-
ited, San Juan, Puerto Rico, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to supply the Union with nec-
essary and relevant information since its requests made Feb-
ruary 25 and March 1, 1991, relating to certain specific fi-
nancial data of Respondent and studies or surveys used by
Respondent as a basis for its proposals made in negotiations
for a collective-bargaining agreement to replace the one that
expired on March 16, 1991.
(b) Failing and refusing to supply the Union with nec-
essary and relevant information since its requests made July
1 and August 15, 1991, relating to specific information about
the subcontracting of work formerly performed by unit em-
ployees.
(c) Since on or about June 24, declaring impasse in nego-
tiations with the Union and on that date and thereafter on
July 1, 1991, unilaterally implementing changes in the
wages, hours and other terms and conditions of employment
of the employees in the bargaining unit, by among other
things, permanently laying off or terminating the employment
of certain employees in the bargaining unit, by eliminating
the classifications and functions of leadworkers, and by re-
ducing and/or changing the wages and fringe benefits of unit
employees, and making changes in employee’s working con-
ditions, without first negotiating such changes with the
Union.
(d) Since on or about July 1, 1991, unilaterally altering the
certified bargaining unit by excluding from its scope the
Guayanilla plant and San Juan office and by eliminating ex-
isting job classifications of janitor, laborer and leadworkers.
(e) Since on or about June 24, 1991, unilaterally sub-
contracting out bargaining unit work formerly performed by
the P.P.A.s and janitors at Respondent’s facilities.
(f) Failing and refusing to bargain in good faith with the
Union over wages, hours, and other terms and conditions of
employment.
(g) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Furnish to the Union information it requested in its let-
ters of February 25, March 1, July 1, and August 15, 1991.
(b) Rescind all of the changes in existing wages, benefits
and other terms and conditions of employment and restore
the status quo ante that existed on and before June 24, 1991,
and make whole its employees for any loss of pay or other
employment benefits that they may have suffered commenc-
ing on July 1, 1991, by reason of Respondent’s unilateral
changes of its employees’ terms and conditions of employ-
ment, in the manner described in the remedy section of this
decision.
(c) Offer Luis M. Diaz, Victor L. Cruz, Juan A. Ortiz,
Carlos I. Perez, Carmelo Pimental, Eduardo Rodriquez, and
Hector Hernandez immediate reinstatement to their former or
equivalent positions, making them whole for wages and other
benefits measured under the status quo ante conditions, lost
by virtue of Respondent’s unlawful conduct in laying off or
discharging them, in the manner described in the remedy sec-
tion of this decision. In the event any or all of these employ-
ees would have been laid off by virtue of the closing of Re-
spondent’s airport facility, reinstatement of such employees
shall not be required. Backpay for such employees, if any,
will cease as of the date of closing of the airport facility.
(d) On request, bargain in good faith with the Union over
wages, hours, and other terms and conditions of employment
to be embodied in a new collective-bargaining agreement to
replace the one that expired on March 16, 1991.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its facilities in Puerto Rico, copies of the at-
tached notice marked ‘‘Appendix.’’12 Copies of the notice,
on forms provided by the Regional Director for Region 24,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail or refuse to supply the Union with nec-
essary and relevant information in compliance with its re-
quests made February 25 and March 1, 1991, relating to cer-
tain specific financial data of the Shell Company (Puerto
Rico) Limited and studies or surveys used by us as a basis
for our proposals made in negotiations for a collective-bar-
gaining agreement to replace the one that expired on March
16, 1991.
WE WILL NOT fail or refuse to supply the Union with nec-
essary and relevant information in compliance with its re-
quests made July 1 and August 15, 1991, relating to specific
information about the subcontracting of work formerly per-
formed by unit employees.
WE WILL NOT declare impasse in negotiations with the
Union and thereafter unilaterally implement changes in the
wages, hours, and other terms and conditions of employment
of our employees in the bargaining unit, by among other
things, permanently laying off or terminating the employment
of certain employees in the bargaining unit, by eliminating
the classifications and functions of leadworkers, and by re-
ducing and/or changing the wages and fringe benefits of unit
employees, and making changes in employee’s working con-
ditions, without first negotiating such changes with the
Union.
WE WILL NOT unilaterally alter the certified bargaining
unit by excluding from its scope the Guayanilla plant and
San Juan of office and by eliminating existing job classifica-
tions of janitor, laborer, and leadworkers.
WE WILL NOT unilaterally subcontract bargaining unit
work formerly performed by the P.P.A.s and janitors at our
facilities.
WE WILL NOT fail or refuse to bargain in good faith with
the Union over wages, hours, and other terms and conditions
of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL furnish to the Union information it requested in
its letters of February 25, March 1, July 1, and August 15,
1991.
WE WILL rescind all of the unilateral changes we made on
and after June 24, 1991, in existing wages, benefits, and
other terms and conditions of employment and restore the
status quo ante that existed on and before June 24, 1991, and
make whole our employees for any loss of pay or other em-
ployment benefits that they may have suffered commencing
on July 1, 1991, by reason of our unilateral changes in our
employees’ terms and conditions of employment.
WE WILL offer Luis M. Diaz, Victor L. Cruz, Juan A.
Ortiz, Carlos I. Perez, Carmelo Pimental, Eduardo Rodriquez,
and Hector Hernandez immediate reinstatement to their
former or equivalent positions, making them whole for wages
and other benefits lost by virtue of our unlawful conduct in
laying off or discharging them. In the event any or all of
these employees would have been laid off by virtue of the
closing of our airport facility, reinstatement of such employ-
ees shall not be made. Backpay for such employees, if any,
will cease as of the date of closing of the airport facility.
WE WILL, on request, bargain in good faith with the Union
over wages, hours, and other terms an conditions of employ-
ment to be embodied in a new collective-bargaining agree-
ment to replace the one that expired on March 16, 1991.
THE SHELL COMPANY (PUERTO RICO) LIM-
ITED
APPENDIX A
Exhibit 2 is a study prepared by Respondent comparing
the wages and benefits of Shell with its two main competi-
tors, Esso and Texaco. It shows selected 1991 wages and
benefits offered by these two companies, as well as cor-
responding figures under the expiring Shell contract and
three possible proposals by Shell for a new agreement. The
figures for Esso are Shell’s best estimate as that company
was in negotiations for a new contract when the study was
made. The wage figures for Texaco are an average of sala-
ries paid to its employees who are grouped into tiers, each
making different wages for the same work. The particular
version of this comparative study was prepared in April
1991, but other versions were prepared months earlier.
Summary Comparison of Contract Provisions Under the
Contract Expiring March 16, 1991, Comparable
Company Proposals Made Prior to June 24, 1991, and
Comparable Provisions Implemented by the Company
on June 2 and July 1, 1991
As pertinent, Article I of the expired contract, Recognition,
recognized the Union as the representative of all production
and maintenance employees employed by the Company at its
Catano and Guayanilla Plants, at the International airport at
Isla Verde and its office at San Juan, Puerto Rico as airport
Attendants, Plantworker and Laborers. It proposed to change
the scope of the bargaining unit, leaving out the Quayanilla
Plant and San Juan office entirely, as well as the classifica-
tion of laborer. It also split the recognition article into two
parts, one for the airport and the other for the Catano plant.
The portion dealing with the airport excluded the laborer
classification. This section was never the subject of agree-
ment. The implemented contract brings the Article back to-
gether, but still deletes the San Juan office and the classifica-
tion of laborer entirely. It adds a section indicating that if the
Guayanilla plant is reopened, the Company will recognize
the Union as the representative of all production and mainte-
nance workers.
Article II, Maintenance of Membership and Agency Shop,
and Article III, Check-Off, and Article IV Non-Discrimina-
tion were agreed to by the parties with some changes at a
time before Respondent implemented its last offer.
Article V, New Employees, had two parts, A and B. Part
A was agreed to, but Part B remained an open issue at the
time of implementation. The implemented contract shortens
part B and seems to eliminate most of the language found
objectionable by the Union.
Article VI, Seniority, involved a number of matters includ-
ing the principle of seniority, the filling of vacancies, lay-offs
and recall rights, and loss of seniority. Though much of this
section was agreed to by the parties, portions of the Article
157SHELL CO.
dealing with layoffs, recall, and loss of seniority were still
open at implementation. The layoff section proposed and im-
plemented in its most significant change eliminated from the
expired contract the necessity of giving two weeks notice of
layoff or in lieu thereof, two weeks pay to the laid off em-
ployee(s). With respect to recall, the proposal cut down the
time that an employee given notice of recall could respond
and report for work. The implemented proposal restores the
old time to respond, but cut from 10 days to 5 the time in
which the employee recalled had to report for work. The
Loss of Seniority section as proposed reduced the time a laid
off employee forfeits seniority from 4 years to nine months.
The implemented contract calls for forfeiture of seniority
after twelve months in layoff status.
Article VII, Hours, Work Schedules, Overtime and Call-
In involved nine different sections. Sections 2, Posting Work
Schedules; Section 3, Overtime pay; Section 4, Overtime
Work Section 5, Call-in Pay Guarantee; Section 6, Overtime
Meal Allowance; and Section 7, Payment of Overtime, were
all still open issues at time of implementation The old Post-
ing Work Schedules section required 15 days advance notice
before changes in work schedules could be effected. The pro-
posed and implemented section eliminates that requirement.
The proposes and implemented section on Overtime Pay de-
letes the phrase ‘‘in each classification’’ from the portion of
the section dealing with attempting to equalize overtime and
changes the necessity for posting a chart listing overtime
worked and refused by employee from current or daily to
weekly. Section 4, Overtime Work, as proposed and imple-
mented eliminated the right of an employee to escape a re-
quest to work overtime if he had a justifiable excuse. Section
5, Call In Pay Guarantee, as proposed and implemented
eliminated overtime pay for an employee called in to work
on a day off or a holiday. Section 6, Overtime Meal Allow-
ance, as proposed and implemented called for the elimination
of overtime pay for employees who were required to work
all or part of their lunch period. This was a change from the
old contract. Section 7, Payment of Overtime, as proposed
and implemented simply eliminated Thursdays as the re-
quired day for pay.
Article VIII, Salaries, was open in all material respects at
the time of implementation. The expired contract called for
the following employee classifications and top pay for each
as follows: Plantworker ($11.61 per hour), Janitor ($11.49
per hour), Leadworker ($11.89 per hour) and airport Attend-
ant ($11.64 per hour). Respondent proposed paying
Plantworkers and airport Attendants $7.00, $7.10 and $7.20
an hour in the 1st, 2nd and 3rd years of the contract respec-
tively. New hires were to be paid $6.00 an hour and would
get the 10 cent annual increase proposed for existing work-
ers. The Company proposed a night shift premium of 30
cents per hour, whereas the old contract paid 40 cents per
hour. The proposal dropped the employee classifications of
Leadworker and Janitor. The implemented contract continued
the elimination of the plantworker and janitor classifications
and paid plantworkers and airport attendants $9.50, $9.80
and $10.10 per hour in the 1st, 2nd and 3rd, years of the
contract. New employees would receive $7.10 an hour and
the night shift premium was set at 35 cents per hour. It ap-
pears to change the old agreement also by cutting out holi-
days, vacations, jury service and sick leave as categories of
time receiving premium pay.
Article IX, Vacations, remained open at implementation.
As proposed, an employee could earn a maximum of 15 days
of vacation per year and accrue vacation for over two years
only with the agreement of the employer. Under the old con-
tract, based upon years of service employees got from 16 to
25 days vacation a year with no limitation on accrual. The
proposal made some other minor, but less favorable changes
from an employee point of view from the old contract. The
implemented contract employed a different vacation formula,
which cut the number of days employees received for vaca-
tion under the old contract, but only by about 13 a year
based upon years worked and eliminated restrictions on ac-
crual.
Article X, Holidays, was open at implementation. The old
contract called for 18 annual holidays, including one floating
holiday. The proposal called for 11 holidays, of which 2
were half day holidays and included no floating holiday. The
implemented contract provided for 15 holidays, of which 2
were half days and included no floating holiday. Both the
proposal and the implemented contract added new provisions
to the Vacation proposal making it clear that if an employee
is paid for his holiday, it will be straight time, not overtime.
Article XI, Leave of Absence was in part agreed to, but
a section dealing with leaves of absence because of the ill-
ness of a spouse or child remained open. In essence the pro-
posal cut out paid leave of up to six days a year for such
absences. The implemented contract restored three days of
paid leave. Remaining open were the portion of the Article
dealing with jury duty, funeral leave, and the responsibility
of an employee to notify the Company no later than two
hours before the commencement of his shift that he will be
absent. The proposed jury duty and court appearance section
eliminated paid leave for jury duty and court appearances,
which was included in the old contract. The implemented
agreement reinstates paid leave for these purposes. The pro-
posed and implemented Funeral Leave section added a time
frame for taking such leave which was not included in the
old contract. The proposed contract in Section 7, Absences,
added a two hour minimum advance notice to be given to
supervisors by employees if the employee is going to be ab-
sent. This proposed change was dropped in the implemented
contract, which used the old contract language in this regard.
Article XIII, Bulletin Boards, was open because the pro-
posal eliminated Guayanilla from the places where bulletin
boards would be maintained. The implemented contract also
eliminates Guayanilla.
Article XIV, Union Representatives, was open. The pro-
posal changed the old contract in two ways, it changed the
right of the Union to send more than one representative at
a time to a Company facility to enforce the contract, and re-
moved the provision for pay for employee/stewards for time
spent in Union activities called for by the contract. The im-
plemented contract carried forward the single representative
proposal, but called for pay for stewards performing contract
authorized union duties, but at straight time, with no over-
time as allowed by the old contract.
Articles XV, Method of Work, and Article XVI, Adher-
ence to Company Rules, were agreed to.
Article XVII, Existing Policies, was open. The proposed
contract called for the elimination of a $25.00 monthly al-
lowance to airport employees, free provision of pocket cal-
culators, 2–15 minute paid wash up periods daily and 2–15
158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
minute break periods daily. The implemented contract re-
stored the calculators and the break period, but continued the
elimination of paid wash up breaks and the $25.00 airport al-
lowance.
Article XVIII, Prior Agreements, and Article XIX, No
Interruption, Slowdown or Cessation of Work, were agreed
to.
Article XX, Administering Performance Standards, had
three parts, A, B, and C. Part A was agreed to but B and
C were still open. Part B proposed a slight wording change,
and Part C proposed enlarging the time that disciplinary
records could be used against an employee from 1 year to
3 years. The implemented contract appears to adhere to the
old contract in all significant ways.
Article XXI, Grievances, was open with respect to two
substantive parts. Shell proposed with regard to Step 1 proce-
dures to shorten the time in which a grievant may file a
grievance from 30 days to 5 days after the act complained
of and shortened the time Shell had to respond from 10 days
to 5. The implemented Step 1 changed these time require-
ments to 10 day for each. In Step 2, the old contract pro-
vided that the Company will submit or make available Com-
pany records, witness or other necessary information related
and pertinent to substantiate an action taken by the Com-
pany. The proposal in this regard changed the operative verb
‘‘will’’ to ‘‘could. ‘‘ The implemented contract uses the pro-
posed language, but puts it in a separate section. In Section
2 of the Grievance Article, the old contract allowed 30 days
to appeal a dismissal. The proposal calls for 5 days, and the
implemented contract allows 10 days for such appeal.
Article XXII of the old contract, numbered as Article XXI
in the proposal and implemented contract, Arbitration, con-
tained four parts, only two of which, parts 1 and 3, were
agreed to at the time of implementation. Significantly, the
old contract called for binding arbitration whereas the pro-
posal and the implemented contract call for an appeal of the
arbitrator’s award to the courts in the event the losing party
does not like the arbitrator’s decision. The other open section
deals with, inter alia, the payment for a transcript of the arbi-
tration proceeding. The proposal called for language some-
what similar to the old contract, but the implemented con-
tract deletes the language altogether.
Article XXIII, Contractor’s Rate of Pay, deals with sub-
contracting and was open. The old contract provided that if
a subcontractor performs any work performed by
leadworkers, airport attendants, janitors or plantworkers, the
subcontractor must pay its employees the rate of pay con-
tained in the old contract. It also generally prohibited directly
or indirectly laying off, any Shell bargaining unit employees
because of subcontracting or in any way curtailing the bar-
gaining unit work. As proposed, the provision deletes any
mention of the employee classification and the language re-
quiring a subcontractor to pay contract wages. The imple-
mented contract deletes this Article altogether, therefore re-
moving any restriction on the use of subcontractors. The im-
plemented change could result in the subcontracting of all
bargaining unit work.
Because of the deletion of the subcontracting Article, the
remaining contract provisions were renumbered from the old
contract and proposal. Therefore, the next three Articles will
be referred to only by their title. The Article dealing with
Non-Bargaining Unit Performing Work, the Savings Clause,
and the Article dealing with Distribution of Agreement were
agreed to.
Article XXVII, Bonus, was open. This Article is renum-
bered as XXV in the implemented contract. The old contract
provided for a Christmas bonus of 5% of $17,000, $17,500
and $18,000 for the years 1988, 1989 and 1990, respectively.
The proposal called for a bonus of 2% of $10,000 for each
of the three years of the proposed contract’s life. The imple-
mented contract provided for a bonus of 4% of $15,500,
$16,500 and $17,500 for 1991, 1992, and 1993 respectively.
The proposal and the implemented contract also added some
language to the Attendance Bonus section of this Article, but
it is questionable whether this language change anything or
merely memorialized an existing policy.
Article XXIX, of the old contract dealt with Benefit Plans.
The comparable proposal made during negotiations mentions
only the Medical Plan. Under the old contract, the Company
had five benefit plans, (1) Shell (Puerto Rico) Employee
Savings Plan, (2) Shell (Puerto Rico) Employee Pension
Plan, (3) Group Life Insurance Plan, (4) Hospitalization Plan
and (5) Shell Disability Plan. The Company paid for all costs
associated with the Hospitalization, Medicine and Dental
Plan. Under the proposal, all mention of plans other than the
hospitalization plan are deleted. It also provides that the plan
will be paid for by the Employer, with the proviso that any
increase in the dental plan will be paid for by the employee.
The implemented plan also covers only hospitalization and
provides a cap of $165 per month per employee on the Em-
ployer’s contribution to the plan.
Letter of Understanding—the old contract had appended to
it and incorporated therein 5 Letters of Understanding and
two Stipulations. Neither the proposal nor the implemented
contract incorporates any of these Letters of Understanding
or Stipulations. Importantly, Letter of Understanding No. 2
called for Shell’s plantworkers to perform the licensed P.P.A.
work mandated by Puerto Rico’s Department of Consumer
Affairs. Shell contends that by not including this Letter in its
proposals, it put the Union on notice that it intended to re-
move the P.P.A function from the duties of the plantworkers.
159SHELL CO.
APPENDIX B
CBM—1991
SPR/COMPETITORS
WAGES/BENEFITS
Esso Texaco
Shell Shell Shell Shell
1990 1st 2d 5th
Base Salary $10.30 $10.74 $11.89 $10.64 $10.44 $10.64
Extra Vacation
(over 15) 0 0 1 0 0 0
Staggered Vacations Max of 10 Max of 10 Max of 10 8 8 8
Holidays (Total) 16 16 16 13 13 13
Birthday 0 1 1 1 1 1
Floating 0 0 1 0 1 0
Personal Days 3 3 6 3 3 4
Xmas Bonus 900.00 500.00 900.00 600.00 600.00 $600.00
Assistance Bonus 0 0 7.5 days 7.5 days 7.5 days 0
Medical Plan 115.00 145.00 234.00 165.00 237.00 165.00
Average Base 10.30 10.74 11.76 10.64 10.44 10.64
Required 1.12 1.15 1.23 1.14 1.12 1.14
Market 3.02 3.37 4.72 3.75 4.27 3.44
TOTAL $14.44 $15.26 $17.71 $15.53 $15.83 $15.22