Sun Transport, Inc.

National Labor Relations Board - Board Decisions

Sep 8, 2003

340 N.L.R.B. 70 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 70
Sun Transport, Inc., a wholly owned subsidiary of
Marine Investment Corporation, which is in
turn a wholly owned subsidiary of Sunoco, for-
merly known as Sun Company, Inc. and Sun
Marine Licensed Officers Association. Case 4–
CA–26705
September 8, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
AND WALSH
On October 3, 2000, Administrative Law Judge Robert
A. Giannasi issued the attached decision. The Respon-
dent, the General Counsel, and the Charging Party filed
exceptions and supporting briefs. The Respondent filed
an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.1
The Respondent excepts to the judge’s finding that the
Respondent violated Section 8(a)(3) and (1) of the Act
by offering less severance pay to the employees repre-
sented by the Union than it offered to other employees.
The judge found that the Respondent made this offer in
response to protected activity, specifically, in retaliation
against the Union’s past bargaining positions. We find
merit to the Respondent’s exceptions. Contrary to the
judge, we find that the record fails to establish that the
Respondent was motivated by antiunion considerations
in making its severance offer to employees represented
by the Union, and consequently the Respondent’s sever-
ance offer did not violate the Act as alleged.2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. In addition, the Respondent contends
that the judge’s rulings, findings, and conclusions demonstrate bias. On
careful examination of the judge’s decision and the entire record, we
are satisfied that the Respondent’s contentions are without merit.
The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
2 In view of our finding that the Respondent did not violate the Act
as alleged, we find it unnecessary to pass on the General Counsel and
Charging Party exceptions to the judge’s remedy.
The Respondent argues in exceptions that the judge should have
permitted evidence to support its defense that it bargained in good faith.
In view of the result here, we need not reach this issue. There are no
allegations that the Respondent failed to bargain in good faith.
I. BACKGROUND
For decades, the Respondent, a subsidiary of Sunoco
(formally known as Sun Company, Inc.) operated a ma-
rine transportation business that transported petroleum
products, primarily for other divisions or subsidiaries of
Sunoco. The Union represents approximately 42 licensed
officers who worked on the Respondent’s barges and
tugboats, including chief mates, second mates, chief en-
gineers, and second engineers. As of March 1997,3 the
Respondent employed approximately 87 other seagoing
employees who were represented in two separate units by
a different union,4 and approximately 45 individuals not
represented by any union.
In March, the Respondent decided to divest itself of its
marine transport business and prepared an analysis of the
potential severance package liability. For this analysis,
the Respondent assumed that all employees, whether
represented or unrepresented, would receive the sever-
ance package set forth in the Respondent’s Involuntary
Termination Plan, which it had applied to terminated
unrepresented employees since 1992. The Involuntary
Termination Plan provided, among other benefits, 2
weeks of severance pay for each year of service up to 20
years, and it required covered individuals to sign a re-
lease of all claims against the Respondent. The severance
pay was forfeited if employees were offered comparable
positions with a successor employer. The analysis antici-
pated that total severance costs would be about $8.4 mil-
lion, with approximately $4.8 million allocated to the
represented employees.
After completing the above analysis, the Respondent
decided to apply the Involuntary Termination Plan to
unrepresented employees, as it had in the past. With re-
spect to the represented employees, however, the Re-
spondent decided to offer them only 1 week of severance
pay per year of service. Under this plan, the cost of sev-
erance benefits for represented employees was reduced
from $4.8 to $2 million. The Respondent’s negotiators
were instructed to stay within the bounds of the $2 mil-
lion figure in their negotiations with the represented
units. They did so.
In 1996, after the Respondent sold a vessel, the North-
ern Sun, the Respondent offered four laid-off union-
represented employees 2 weeks of severance pay per
3 All subsequent dates are 1997 unless otherwise indicated.
4 The Sun Marine Employee’s Association (SMEA) represented two
units of the Respondent’s employees: a unit of unlicensed ship employ-
ees and a unit of unlicensed barge employees. SMEA and the Respon-
dent reached agreement on a severance package, which, although ini-
tially rejected, eventually was ratified by the members. Like the tenta-
tive agreements reached with the Union, the agreements with SMEA
contained significantly less severance pay per year of service than the 2
weeks per year granted to the unrepresented employees.
340 NLRB No. 8
SUN TRANSPORT, INC. 71
year of service. This was a one-time offer, which was
accepted.
In late 1996, prior to the Respondent’s preparation of
its severance analysis, the parties began bargaining for a
successor to the collective-bargaining agreement that
expired on November 27, 1996. After the Respondent
made the divestiture decision in March, bargaining for a
successor agreement continued through the spring, and
negotiations also encompassed the issue of severance.5
In late April or early May, the parties reached a tentative
agreement on a successor collective-bargaining agree-
ment and a severance package. The severance package
included 1 week’s pay per year of service. The member-
ship rejected both of these agreements on May 23.
The parties subsequently returned to the bargaining ta-
ble, and negotiations were focused almost exclusively on
the severance pay issues, as the divestiture was already
underway. The Union expressed its concern that the unit
employees were not being offered the same severance
package offered other employees, and made clear that it
would accept the terms of the Involuntary Termination
Plan offered to the unrepresented employees. The Re-
spondent rejected that offer.
In September, the parties tentatively agreed to a new
severance package that included severance pay of 1
week’s pay per year of service.6 At this point, the dives-
titure was almost complete and many of the Respon-
dent’s employees had been laid off. On October 15, the
union membership rejected the new severance package.
The Respondent, meanwhile, completed the divestiture in
October.7
In an October 22 letter, Union President Daniel
Milligan asked Vice President Deborah Fretz why the
Respondent’s best severance offer to unit employees was
50 percent less than the severance paid to all other termi-
nated employees. Thereafter, on October 31, Milligan
and the Union’s lawyer met with the Respondent’s repre-
sentative to make one last attempt at securing a mutually
agreeable severance package. The Respondent’s repre-
sentatives told them that the 1 week per year of sever-
ance pay rejected by the membership was the Respon-
dent’s last and final offer.
Following the October 31 meeting, and in response to
Milligan’s October 22 inquiry, Fretz, in a November 17
letter, presented the Respondent’s reasons for offering
the Union less severance. First, Fretz stated that negotia-

5 Even while the divestiture was imminent, the Respondent contin-
ued bargaining for a successor collective-bargaining agreement because
it believed securing one would make the company more attractive to
potential buyers.
6 The parties also reached agreement on certain collateral issues.
7 By the time of the hearing, the Respondent existed only as a shell
corporation within Sunoco, with no employees and no business opera-
tions.
tions differed greatly among employee groups, that the
Union incorrectly assumed that the Respondent offered
all other employees the same severance package, and
that, in fact, the severance packages differed greatly
among the represented groups.
Second, Fretz said that the Respondent had considered
how responsive the “represented group” had been to the
Respondent’s efforts to contain costs and improve its
competitive position. Fretz noted in particular that in
their 1996 contract negotiations, the parties failed to
reach agreement on some of the Respondent’s proposals,
and this resulted in continued high, uncompetitive costs.
Fretz stated “[a]ll of this is part of our review and analy-
sis when we determine whether we are willing to offer
severance packages to a given group of employees, as
well as having some impact on our evaluation of the total
additional costs we are willing to sustain.”
Third, Fretz expressed her view that the purpose of
severance pay is to assist employees while they search
for other employment, and added that most employees
were not accepting the new owner’s job offers.
The Respondent and the Union did not reach further
agreement, and the employees represented by the Union
ultimately received no severance pay.
Applying a Wright Line analysis,8 the judge found that
the Respondent’s severance offer was motivated, at least
in part, by antiunion animus. Although noting that the
Act does not require employers to afford represented and
unrepresented employees the same wages and benefits,9
the judge found that the Respondent’s offer was moti-
vated by its desire to retaliate against the Union for en-
gaging in protected activity. The judge further found that
the Respondent had not shown that it would have made
the same offer even in the absence of protected activity,
and therefore the Respondent’s severance offer to em-
ployees represented by the Union violated Section
8(a)(3) of the Act.
Specifically, the judge found Fretz’ November 17 let-
ter to be an admission that the Respondent retaliated
against the Union for bargaining positions taken in the
past. The judge noted that Fretz stated in the letter that
the Respondent had considered the Union’s past bargain-
ing positions, and attributed its uncompetitive situation to
these bargaining positions. Because Fretz did not specify
8 To prove an 8(a)(3) and (1) discrimination allegation, the General
Counsel must show, by a preponderance of evidence, that “antiunion
sentiment was a substantial or motivating factor in the challenged em-
ployer decision.” Manno Electric, 321 NLRB 278 fn. 12 (1996);
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). Once the General Counsel makes this showing, the
burden shifts to the respondent to show it would have taken the same
actions even in the absence of protected activity. Id.
9 Shell Oil Co., 77 NLRB 1306, 1310 (1948).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 72
the particular bargaining positions or the uncompetitive
costs involved, the judge found that the Respondent’s
real reason for its severance offer was a desire to retaliate
against the Union for engaging in protected activity.
Fretz’ last point, that employees did not accept the suc-
cessor’s job offers, was, in effect, “blam[ing] the Union
for something over which it had no[] control,” was “at
best irrelevant, and, at worst, a confirmation of the union
animus.”
The judge implied that the Respondent’s severance of-
fer was a departure from its standard practice, and that
this departure was further evidence of antiunion animus.
He noted that in 1996, before negotiations began, the
Respondent sold a ship and gave 2 weeks of severance
pay per year of service to the four laid-off, union-
represented employees. In addition, because the Respon-
dent initially considered offering 2 weeks of severance
pay per year of service to all employees, the judge inter-
preted the Respondent’s decision to offer only 1 week of
severance pay as a “cut” solely imposed on represented
employees. The judge found that there was a substantial
disparity between the separate offers, and this disparity
showed that the Respondent treated the Union differently
because the unit employees exercised their right to bar-
gain collectively.
Finally, the judge found that the Respondent’s dis-
criminatory motive was ultimately confirmed by the fact
that the employees represented by the Union never re-
ceived any severance.
Having found that the Respondent’s offer was moti-
vated in part by antiunion animus, the judge also found
unpersuasive the Respondent’s defense, i.e., that its deci-
sion to offer lower severance was driven by economic
considerations. The judge found the testimony of Presi-
dent James Fidler, the chief decision maker, to be vague
and unspecific regarding the Respondent’s cost structure
and regarding the cost concessions that the Union refused
to make.
II. ANALYSIS
Contrary to the judge, we find that the General Coun-
sel has failed to show that the Respondent was motivated
by antiunion animus when it offered lower severance pay
to employees represented by the Union than that offered
to unrepresented employees.10 As the judge correctly
noted, the Board has long held that employers may offer
different benefits to represented and unrepresented
groups of employees as part of its bargaining strategy.
Shell Oil, supra. Thus, the mere fact that different offers
are made or that different benefits are provided does not,

10 Because we find that the General Counsel has failed to carry his
initial burden of proof under Wright Line, supra, we need not address
the judge’s analysis of the sufficiency of the Respondent’s evidence
concerning its economic costs.
standing alone, demonstrate unlawful motive. Although
an employer is not free to discriminatorily afford repre-
sented employees less benefits than unrepresented em-
ployees, i.e., in order to discourage support for the union,
the record does not establish that the Respondent en-
gaged in such conduct here.11
We find that Fretz’ November 17 letter to the Union
does not demonstrate antiunion animus. In the letter, the
Respondent expressed its belief that the Union’s bargain-
ing positions had led to high costs of operations and that
those high costs, in turn, were a factor considered by the
Respondent in formulating its severance proposal. Thus,
we cannot say that the bargaining position was itself the
basis for the severance pay offer.
Further, even if the severance pay offer was based
upon the Union’s bargaining position during the negotia-
tions for a successor contract, we would still find no vio-
lation of the Act. With respect to this Union, the matter
of severance pay arose during comprehensive bargaining
for a new contract. The Respondent sought concessions
in late 1996 and continued to seek them in 1997. And, in
1997, this bargaining was intertwined with the bargain-
ing over severance pay. The Respondent sought to use
the severance pay issue to force concessions in other
areas. More particularly, the Respondent, as it explained
in the November 17 Fretz letter, was tying its position on
severance to the Union’s refusal “during the entire pe-
riod” (i.e., during the negotiations in 1996 and 1997 for a
successor collective-bargaining agreement) to make con-
cessions in other areas.
There is no evidence, or even an allegation, that the
Respondent’s bargaining was in bad faith. Indeed, all of
this was a legitimate part of the bargaining process. As
the Board and the courts have recognized, “[c]ollective
bargaining by its very nature is an ‘annealing process
hammered out under the most severe and competing
forces and counteracting pressures.’” Chevron Oil Co. v.
NLRB, 442 F.2d 1067, 1074 (5th Cir. 1971) (quoting
NLRB v. Dalton Brick & Tile Corp., 301 F.2d 886, 895
(5th Cir. 1962)). The Respondent’s severance offer was
but one element of the “competing forces and counteract-
ing pressures” inherent in the collective-bargaining proc-
ess. Consequently, the Respondent’s consideration of
the Union’s bargaining positions does not demonstrate
antiunion animus.12
11 Empire Pacific Industries, 257 NLRB 1425, 1426 (1981).
12 In agreeing with his colleagues that the General Counsel has failed
to demonstrate that the Respondent was motivated by antiunion animus
when it offered lower severance pay to employees represented by the
Union than that offered to unrepresented employees, Member Walsh
observes that there is no evidence that the Respondent’s offer to the
Union was intended as punishment for bargaining positions that the
Union took during negotiations that led to earlier collective-bargaining
agreements. Rather, the Respondent’s offer was made in an effort to
SUN TRANSPORT, INC. 73
We recognize that the Respondent ultimately made no
severance payment to these employees. However, there is
no allegation that the Respondent violated Section
8(a)(5) by taking action that was different from its bar-
gaining position. Further, as with the severance offer, the
ultimate lack of a severance payment demonstrates noth-
ing more than the Respondent’s attempt to offset the lack
of savings in other areas. Thus, just as the Respondent
could offer reduced severance pay as a means of induc-
ing concessions, so the Respondent could withhold any
severance pay to achieve cost-savings.
Finally, the judge found that Fretz blamed the Union
for something over which it had no control. The judge
suggested that Fretz’ statement in the November 17 letter
that many employees did not accept job offers with the
successor employer was confirmation of the Respon-
dent’s antiunion animus. We disagree. Fretz was merely
explaining the Respondent’s attempts to secure post-
divestiture employment for members of the unit. Rather
than blaming the Union, Fretz was simply reciting a fact
and reiterating the Respondent’s efforts on behalf of the
represented employees. Accordingly, we find no animus
in Fretz’ statement.
For the foregoing reasons, we find the General Coun-
sel failed to establish that the Respondent was motivated
by antiunion animus in offering less severance pay to
employees represented by the Union than to unrepre-
sented employees. Accordingly, we find that the Re-
spondent did not violate Section 8(a)(3) of the Act as
alleged.
ORDER
The complaint is dismissed.

Donna D. Brown, Esq., for the General Counsel.
Anthony B. Haller, Esq., of Philadelphia, Pennsylvania, for the
Respondent.
Harold M. Weiner, Esq., of New York, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. This
case was tried in Philadelphia, Pennsylvania, on January 20 and
21 and June 15, 2000. The complaint alleges that Respondent
violated Section 8(a)(3) and (1) of the Act by offering employ-
ees represented by the Charging Party Union (the Union or
SMLOA) lesser severance benefits than those offered to unrep-
resented employees for discriminatory reasons. Respondent
filed an answer denying the essential allegations in the com-
plaint. After the trial closed, the parties filed briefs, which I
have read and considered.

induce concessions as part of the give-and-take during negotiations
over a comprehensive successor agreement.
Based on the entire record, including the testimony of the
witnesses and my observation of their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Pennsylvania corporation, was engaged in the
business of transporting petroleum products until late October
1997. During a representative 1-year period, it purchased and
received goods valued in excess of $50,000 directly from points
outside the Commonwealth of Pennsylvania. Accordingly, I
find that, at all material times, the Respondent was an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
At all material times, the Union (SMLOA) was a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
In January 1996, Respondent operated a fleet of two ships
and nine tug and barge units as part of its marine transportation
business. Some 42 licensed officers on the barges and tug-
boats—chief mates, second mates, chief engineers, and second
engineers—were represented by the Union. Other seagoing
employees were represented in two separate units—one for
unlicensed ship employees and one for the unlicensed barge
employees—by another union, the Sun Marine Employees’
Association (SMEA). In March 1997, Respondent employed
about 87 of these other seagoing unlicensed represented em-
ployees.
In January 1996, the Respondent also employed some 56 in-
dividuals who were not represented by any union. In the unrep-
resented group were some 42 seagoing personnel, including
motor barge and tugboat masters, ship captains, and licensed
ship officers. Also in the unrepresented group, as of March
1997, were 14 administrative personnel, all of whom worked at
Respondent’s Philadelphia facility, except for one who worked
in San Juan, Puerto Rico. By March 1997, the total number of
unrepresented individuals employed by Respondent had dwin-
dled to 45.
The Respondent and the Union were parties to a series of
collective-bargaining agreements, the most recent of which was
effective from May 1, 1994, to November 27, 1996. That
agreement had no general severance pay provisions, although it
contained a “special severance” clause that applied in the case
of a hostile takeover.
In early 1996, Respondent decided to sell one of its vessels,
the Northern Sun, resulting in the layoff of four employees
represented by the Union. On April 30, 1996, Respondent and
the Union entered into an agreement that provided severance
pay for the laid-off employees. Among the provisions in this
agreement was a severance package of 2 weeks’ pay for every
year of service, with a minimum of 12 weeks for 6 years or less
of service, together with continuing medical benefits. In return,
employees relinquished recall rights and agreed to sign a gen-
eral release of all other claims against Respondent. After the
layoff, there remained some 38 employees in the unit repre-
sented by the Union.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 74
After the sale of the Northern Sun, the Respondent made
some management decisions that led to the divestiture and sale
of its marine operation and the layoff of its entire work force.
Beginning in October 1996 and continuing through the comple-
tion of the divestiture about 1 year later, the Respondent and
the Union engaged in bargaining, first, for a new collective-
bargaining agreement, and, finally, for severance pay for the
employees who were going to be laid off because of the divesti-
ture. The aftermath of those negotiations and the divestiture
itself resulted in this litigation.
2. Respondent’s road to divestiture and initial
bargaining negotiations
Respondent had an insular position in its parent’s corporate
organization. Except for a “very small percentage,” most of
Respondent’s customers were internal, that is, other divisions
or entities of the parent corporation. Although the Respondent
utilized a “pro forma” profit-and-loss statement, the revenue
side of that statement was not composed of “rigorously” nego-
tiated money. Thus, the Respondent’s primary focus was on
the cost side of the statement.1
As a result of studies between 1995 and 1997, Respondent
and its parent decided both to reduce costs and to question seri-
ously whether it wished to remain in the marine transport busi-
ness. One of the operative considerations was passage of the
Oil Pollution Act of 1990, legislation enacted after the Exxon
Valdiz oil spill in Alaska. That legislation heightened the po-
tential liability for an oil spill from one of Respondent’s ves-
sels.
In an effort to improve its competitive position by cutting
costs, Respondent unilaterally reduced the 1997 vacation pay
for its unrepresented captains at the end of 1996 and basically
froze the 1997 merit wage program for its unrepresented em-
ployees. Respondent also attempted to reduce labor costs in its
represented units through collective bargaining, but it was un-
able to achieve all the cost savings it wanted in union negotia-
tions.
Negotiations between Respondent and the Union began in
October 1996 for a successor agreement to the one that was to
expire at the end of November 1996. The parties agreed to ex-
tend the terms of the expired agreement while negotiations
progressed on the new agreement, except for the provisions on
vacation pay. Negotiations for a new agreement proved unsuc-
cessful. Sticking points, according to the Union, were Respon-
dent’s effort to do away with vacation pay, to alter disability
pay, and to dispense with pay raises.
In January 1997, some high-ranking officials made a rec-
ommendation that the parent company divest its marine opera-
tions and basically sell the assets of the Respondent. The final
decision to divest was made in mid-March 1997. Bid proposals
were sent out, with a preference for buyers who would continue
to employ the existing work force. In the spring of 1997, a
tentative deal with a particular buyer fell through because the
buyer’s stockholders rejected it. In July, another buyer, the
Maritrans Corporation, made an unsolicited offer to buy the

1 The above and most of the factual statement dealing with Respon-
dent’s financial situation and strategy is based on the testimony of
Respondent’s president and general manager, James Fidler.
Respondent’s marine transportation assets and the offer was
accepted.2
After the sale, the divestiture took place, with layoffs occur-
ring incrementally through the end of October 1997, at which
time Respondent no longer had any employees. Respondent
apparently still exists as a corporate entity, but does not engage
in any business activities.
3. The severance package study
In early March 1997, the Respondent undertook a study of
the potential severance package liability it would incur as a
result of the anticipated divestiture. Those costs, as well as
others connected with the sale of the marine business, such as
legal and brokers’ fees and other expenses in cleaning and
“turning over the equipment,” had to be deducted from the sales
price to determine what, if anything, Respondent would gain
from the sale. In the end, according to the Respondent’s presi-
dent and general manager, James Fidler, the parent corporation
netted some $4 to 5 million from the sale, although no support-
ing documentary evidence was submitted on this point.
The Respondent’s study of its severance package obliga-
tions—titled “1997 Projected Severance Package Exposure”—
assumed that all of its employees, both the represented and
unrepresented work force, would obtain the same severance
benefits that were set forth in Respondent’s Involuntary Sever-
ance Plan for unrepresented employees and individuals. That
plan, unilaterally promulgated by Respondent in 1992, and
revised in February 1997, provided that covered individuals
would basically be entitled to so-called enhanced severance
benefits of 2 weeks’ pay for each year of service up to 20 years,
plus continued medical and other benefits. Under the unrepre-
sented employee severance plan, the individual who received
those benefits would be required to sign a general release of all
claims against Respondent and would be disqualified from
receiving any severance pay if he or she were offered a compa-
rable position with the successor employer. It was, of course,
anticipated that severance packages for the represented em-
ployees would be the subject of collective bargaining.
The severance package study assumed a total liability of
about $8.4 million.3 It also assumed 45 unrepresented employ-
ees and 125 represented employees. Estimated severance
pay—basically 2 weeks for each year of service for all employ-
ees—amounted to about $5 million, about $2.2 million for un-
represented employees, and about $2.8 million for represented
employees. Another $3.4 million was anticipated in medical
benefits, about $1.4 million for unrepresented employees, and
about $2 million for represented employees. The breakdown as
between represented and unrepresented personnel for the $8.4
million of total projected expense was about $3.6 million for
the 45 unrepresented personnel and about $4.8 million for the
125 represented employees.
2 The contract of sale between Respondent and Maritrans was not of-
fered in evidence.
3 The study apparently did not assume the sale of one of Respon-
dent’s ships, the Philadelphia Sun. If the employees associated with
that ship were also entitled to severance pay, the amount would be even
higher, although the record does not permit even an estimate of the
additional amount of severance liability in that event.
SUN TRANSPORT, INC. 75
According to President Fidler, Respondent decided that the
$8.4-million-figure was too high. It decided to slice the pro-
jected severance package for represented employees, basically,
by reducing it from 2 weeks to 1 week per year of service. The
cuts were reflected in a document, dated April 2, 1997, that set
forth some $2 million of total severance benefits available for
the represented employees. This was a reduction of over 50
percent from the earlier projected amount for represented em-
ployees. Respondent’s negotiators were given instructions to
stay within that figure in bargaining with the unions bargaining
on behalf of the three represented units, and they did.
No cuts were made to the projected severance package for
unrepresented personnel. Since the 2-week severance package
for unrepresented employees was unilaterally determined, the
projected amount for unrepresented employees was the actual
amount offered and distributed to them. Although the amount
of the severance package for the represented employees was the
subject of negotiations, Respondent never offered the Union
severance pay of any more than 1 week per year of service.
4. Continuing negotiations and the first
unratified agreement
In mid-March 1997, the Union was notified that Respondent
was planning to dispose of its entire fleet. Thereafter, the nego-
tiations were expanded to include effects bargaining related to
the divestiture of the marine transportation business. In that
connection, the Union asked for and received from Respondent
a copy of its severance plan for unrepresented employees, dis-
cussed above.4
Bargaining continued until late April or early May 1997, at
which time the parties reached an overall agreement on both a
collective-bargaining agreement and on a severance package.
The latter was basically 1 week of severance pay per year of
service, plus medical benefits. In an effort to secure member-
ship ratification of the overall agreement, the Respondent
agreed to withdraw its proposal to do away with vacation pay.
The employees would thus obtain their 1997 vacation pay,
which was eventually paid out to union members.
The above agreement was in line with Respondent’s April 2,
1997 severance package decisions. Frank Baumann, Respon-
dent’s chief negotiator, testified that he thought he could con-
vince the Union to settle for severance pay of 1 week per year
of service, plus the vacation pay that previously had been with-
held. A contemporaneous worksheet, which was received in
evidence as Respondent’s Exhibit 36, showed that this offer
amounted to about $673,000, $540,000 for severance pay and
$133,000 for the 1997 vacation pay. (See R. Br. 19.)
On May 9, 1997, the Union sent a letter to its members in
connection with a membership ratification vote on the agree-
ment. The letter expressed concern about the severance pack-
age, but said that it was about the best that could be obtained in
the circumstances. The employees nevertheless voted to reject
the agreement on May 23, 1997. After this initial failure of the
membership to ratify the agreement, the parties returned to the
bargaining table.

4 There appear to have been some initial discussions about severance
pay in February 1997 because the Union was notified that Respondent
intended to sell two of its vessels.
5. Further negotiations and the second
unratified agreement
Subsequent negotiations concentrated on a severance pack-
age. It became obvious, particularly after the agreement for the
sale of Respondent’s marine transportation assets to the Mari-
trans Corporation, that Respondent was going out of the marine
transportation business and there would be no need for a new
collective-bargaining agreement. Indeed, through the summer
of 1997 and into early fall, Respondent was laying off employ-
ees in anticipation of going out of business entirely.
The Union continued to express its concern that the sever-
ance package it was being offered was less than that offered to
the unrepresented employees. As early as April 1997, Union
President Daniel Milligan wrote Sunoco Chairman and CEO
Robert Campbell, complaining that Respondent was not offer-
ing the more generous package to the Union. Deborah Fretz,
the Sunoco senior vice president with overall responsibility for
Respondent, replied for Campbell, stating simply that severance
pay was the subject of negotiations. On July 2, 1997, a union
lawyer, on behalf of all the unions that were then negotiating
over severance pay, wrote Respondent protesting that the un-
represented employees were getting more in severance pay than
the represented employees. In that letter, the lawyer said that
the unions would “accept the terms and conditions” of the In-
voluntary Severance Plan applicable to the unrepresented em-
ployees. The Respondent had not offered those terms and con-
ditions to any of the unions, and, in a response dated July 22,
1997, the Respondent rejected the union lawyer’s position.
Eventually, the parties agreed to an essentially stand-alone
severance package, which basically amounted to the 1-week-
per year of service package previously offered by Respondent.
The package included provisions dealing with a general release
and forfeiture of severance pay for employees who were of-
fered a comparable position with the new owner. Although
there was no condition that a collective-bargaining agreement
be part of the package, the parties also resolved some minor
miscellaneous issues. The most significant of those was an
increase by the Respondent from $1400 to $3000 for resolution
of the so-called Bombster grievance, which dealt with the al-
leged use of nonunit employees to perform unit work after the
sale of the Northern Sun.
Another ratification vote was scheduled with a deadline for
acceptance by September 12, 1997, a date later extended to
sometime in October. On October 15, 1997, the severance
package was rejected by the union membership.5
6. Subsequent efforts to resolve the dispute
On October 22, 1997, Union President Daniel Milligan wrote
Sunoco Vice President Deborah Fretz about the severance pay
issue. Milligan referred to Fretz’ April 11, 1997 letter stating
that severance pay was the subject of negotiations. Milligan
stated that, since negotiations had now concluded with the
membership’s rejection of Respondent’s severance offer, Fretz
was “now free to answer the question” he had posed to CEO
5 At about this time, the Respondent and SMEA reached agreements,
which were eventually ratified. Those agreements included severance
packages for the two units represented by SMEA. The employees in
the ship unit initially failed to ratify their agreement on September 26,
1997, but did so about a month later.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 76
Campbell in April: “Why is it that the Company’s best sever-
ance offer was 50% less than all other employees who have
been terminated from Sun?”
On October 31, Milligan and the Union’s new lawyer met
with management representatives in a final effort to secure a
mutually agreeable severance package. At that meeting, which
lasted about an hour, the Union pleaded for 2 weeks of sever-
ance pay. Human Resources Manager LaVonne Pelisari, on
behalf of Respondent, told the union representatives that the
Respondent’s 1-week severance offer, which had been rejected
by the Union’s membership, was Respondent’s last and final
offer. By this point, Respondent had terminated all of its em-
ployees and was effectively out of the marine transportation
business, a fact mentioned at the meeting by Pelisari.
In a November 17, 1997 reply to Union President Milligan’s
October 22 letter, Sunoco Vice President Fretz noted that she
had waited to respond until after the October 31 meeting. She
gave three reasons for why the Respondent’s severance offer
was less than that for other employees. First, she said that
Milligan was wrong in assuming “that all other employees
have been offered the same severance packages. Negotiations
and severance packages differ greatly between represented
groups.” Secondly, she stated that Respondent considered
“how responsive” the “represented group has been to our re-
quests for consideration of ideas and cost containments that
would improve our competitive position.” Fretz continued:

In the case of the most recent negotiations with
[SMLOA], in 1996 the Company presented requests for
improvements in our cost structure as defined by our labor
agreement. Unfortunately, we were unable to reach
agreement. Consequently, during the entire period we ne-
gotiated with SMLOA, the Company continued to experi-
ence what we believe are high, uncompetitive costs. All
of that is part of our review and analysis when we deter-
mine whether we are willing to offer severance packages
to a given group of employees, as well as having some
impact on our evaluation of the total additional costs we
are willing to sustain.

The last point Fretz made in her letter dealt with Respondent’s
asserted concern that as many employees as possible continue
employment with the new owner. She stated that “[s]everance
packages are designed to assist employees while they search for
other employment; in this case, most of the employees were not
receptive to the new owner’s job offers.”6
The original charge in this case was filed in December 1997.
Respondent apparently had no further contact with the Union
until late in the following year. According to Human Re-
sources Manager Pelisari, Union President Milligan told her, in
a telephone conference call on November 8, 1998, that if Re-
spondent’s offer of the year before were still on the table “it
would really fly.” Respondent rejected the overture, and, cer-
tainly by that point, Respondent had removed its previous offer
from consideration. Nor has Respondent made any severance
payments to the employees represented by the Union. The

6 Fretz testified about the letter, but her testimony did not offer any
useful clarification of the language used in the letter.
parties were, however, able to definitively resolve the Bombster
grievance in December 1998.7
B. Discussion and Analysis
Absent an unlawful motive, an employer is not obligated to
offer union-represented employees the same benefits available
to unrepresented employees. Shell Oil Co., 77 NLRB 1306,
1310 (1948). See also Phelps Dodge Mining Co., 308 NLRB
985, 995–998 (1992), enf. denied 22 F.3d 1493 (10th Cir.
1994); Empire Pacific Industries, 257 NLRB 1425, 1426
(1981); B.F. Goodrich Co., 195 NLRB 914 (1972). Con-
versely, the above line of cases makes clear that offering or
providing different benefits may be violative of Section 8(a)(3)
and (1) of the Act, if such conduct is motivated by antiunion
considerations.8
The question in this case is whether the General Counsel has
proved by a preponderance of the evidence that Respondent
was motivated by antiunion reasons when it admittedly failed to
offer the employees represented by the Union the same sever-
ance package it offered to the unrepresented employees. Re-
spondent contends that it was motivated only by legitimate
business reasons. I agree with the General Counsel.
The General Counsel points to Vice President Fretz’ No-
vember 17 letter as evidence that Respondent sought to punish
the Union for having taken bargaining positions in past negotia-
tions that Respondent did not like. The letter was sent after the
employees had rejected the Respondent’s September 1997
stand-alone severance package and contract negotiations had
ended. At that point, Respondent’s vessels had been sold and
most of the employees had been laid off. There was no need
for an overall collective-bargaining agreement and thus little or
nothing in the way of tradeoffs for either side.
On its face, the second point in Fretz’ letter—actually, the
main point—makes it clear that Respondent did not offer the
Union the same severance benefits it gave to the unrepresented
employees because of the Union’s past bargaining positions.
Initially, Fretz stated that, in deciding on a severance package
for a represented group of employees, Respondent considered
“how responsive” the group had been to Respondent’s requests
for cost containments to improve its competitive position.
Fretz specifically referred to the 1996 bargaining negotiations
7 The Union and the General Counsel also rely on the testimony of
employee Ann Sill in an attempt to show that Respondent harbored
some animus specifically against Union President Dan Milligan. That
testimony is based on conversations Sill had with management offi-
cials, particularly Human Resources Manager LaVonne Pelisari, who
credibly denied making the remarks attributed to her. Sill’s testimony,
even if I were to credit it, does not provide the type of animus that
would be useful in this case. It appears to focus on alleged personal
animus rather than union animus. In any event, I do not credit any of
Sill’s testimony. Sills displayed an animus of her own against Respon-
dent. Moreover, her testimony was, on the whole, vague, implausible,
and lacking in clarity or context. I cannot rely on any of it in making
findings of fact in this case.
8 Respondent does not dispute the applicability of the principle set
forth in the above line of cases. Indeed, it cites three Board cases
(Sundstrand Castings Co., 209 NLRB 414, 427 (1974) (Br. 37); Winn-
Dixie Raleigh, Inc., 267 NLRB 231, 235, 236 (1983) (Br. 35); and Sun
Oil Co., 245 NLRB 59 (1979) (Br. 36)), which recognize the principle
but find, in the circumstances of each case, business rather than anti-
union reasons motivated the employers’ actions.
SUN TRANSPORT, INC. 77
for a new collective-bargaining agreement. She clearly attrib-
uted the Respondent’s alleged high costs to the Union’s bar-
gaining positions in those negotiations. But she did not specify
either the costs or the Union’s bargaining positions to which
she referred. And since Fretz was answering Milligan’s blunt
question why Respondent did not offer the Union the severance
benefits given to unrepresented employees, the causal link is
inescapable. Thus, I read the letter as acknowledging a retalia-
tory purpose for Respondent’s failure to offer the Union the
same severance benefits it gave the unrepresented employees.9
The other two points made by Fretz in her letter are some-
what ambiguous, but they do not rebut the main point discussed
above. Fretz’ first point, that negotiated severance packages
differ greatly between “represented groups,” is merely a truism;
it is not responsive to the thrust of Milligan’s question, which
dealt with the severance benefits paid to the unrepresented em-
ployees. Fretz’ last point was that severance packages were
designed to assist employees in their search for other employ-
ment and that the Union’s members were not receptive to job
offers from the new owner. Although this point does not ap-
pear to have any relationship to Fretz’ main point, it neverthe-
less seems to blame the Union for something over which it had
no control. Respondent had offered severance pay to all of its
employees, albeit in different amounts, without regard to enti-
tlement or whether they searched for other employment.
Moreover, severance pay would be forfeited only if employees
received comparable offers from the new owner. Significantly,
the employees represented by the Union received no severance
pay and thus had none to forfeit. In these circumstances, Fretz’
last point is, from Respondent’s standpoint, at best, irrelevant,
and, at worst, a confirmation of the union animus reflected in
her main point.
My reading of the Fretz letter gains support from other evi-
dence indicating that, before the Union’s alleged uncooperative
bargaining position mentioned in the letter, the Respondent
granted employees represented by the Union essentially the
same 2-week per year of service severance package set forth in
the Involuntary Severance Plan. In the spring of 1996, before
bargaining was initiated on a new contract, Respondent and the
Union agreed on such a package for the four employees laid off
as a result of the sale of the Northern Sun. I recognize that far
fewer employees were given that severance package and thus
the overall cost to the Respondent was considerably less than a
similar package for the remaining unit employees. But admit-
tedly the Respondent was also concerned about costs at the
time of the Northern Sun agreement.
In its brief (Br. 41–42), Respondent contends that Fretz’ let-
ter meant to refer to “higher costs,” which had not been ad-
dressed in the “same course of bargaining” with the Union. But
both the language used in Fretz’ letter and the context of the
letter show that Respondent blamed the Union for its past
course of bargaining. Fretz specifically referred to the 1996
bargaining. Moreover, before the September 1997 severance

9 Contrary to the Respondent’s contention (Br. 42), reliance on the
Fretz letter is not prohibited by Sec. 8(c) of the Act. The letter was
more than an opinion. It was Respondent’s effort to explain conduct
that is alleged to be discriminatory. Moreover, the letter does not stand
alone; other evidence also supports the finding of discrimination. See
D & E Electric, 331 NLRB 1037 fn. 1 (2000).
offer, both parties had dropped any effort to conclude an overall
new bargaining agreement. Thus, it was past bargaining and
not present bargaining that was the focus of the letter. Nor does
Respondent specify in its brief, any more than Fretz does in her
letter, the higher costs Respondent allegedly experienced be-
cause of the Union’s bargaining positions or why those costs
warranted withholding from the Union the more generous sev-
erance package given to the unrepresented employees. Indeed,
Respondent seems to assert that these alleged higher costs were
first considered in its April 1997 determination to allocate sev-
erance pay differently as between the represented and unrepre-
sented employees, an issue with which I deal below.
My reading of the Fretz letter is also supported by evidence,
submitted by Respondent, showing that the Respondent initially
considered paying all the employees—represented and unrepre-
sented alike—the full 2 weeks per year of service set forth in
the unrepresented employees’ severance plan. That proposal
was dropped in early April 1997 because it was thought to be
too expensive, surely a legitimate business judgment. What
Respondent did, however, was to cut the severance amount
available to the represented employees by over 50 percent. No
cut at all was made to the amount allocated to unrepresented
employees. The differences are so substantial that Respon-
dent’s cuts lend credence to the view that Fretz’ letter was sim-
ply a continuation of a fixed determination to treat the repre-
sented employees differently from the unrepresented employees
because they exercised their right to bargain collectively.10
In its brief, Respondent seems to contend that its different
treatment of represented employees does not reflect a retalia-
tory motive, but rather a desire to effect a kind of rough justice
based on past cost concessions made by unrepresented employ-
ees that were not matched by represented employees. As I have
indicated, I do not read the Fretz letter that way. To the extent,
however, that Respondent’s contention is also meant to explain
away its initial decision, made in April 1997, to treat the two
groups differently, that contention must be based on specific
evidence concerning that decision at the time it was made. The
only testimony on the point came from President James Fidler,
who was, he testified, the primary decision maker for setting
final severance pay allocations. Any recommendations he may
have made to Fretz, his superior, were followed. But Fidler’s
testimony concerning why he decided to authorize severance
amounts allocated to the represented employees that were more
than 50 percent lower than those allocated to unrepresented
employees is ambiguous, unspecific, and unpersuasive.
Fidler first surmised that the represented employees would
more easily secure employment from the new owner. It is not
apparent how this point deals with costs. Moreover, it is hard
10 Contrary to the suggestion in (R. Br. 47), reliance on the April
1997 evidence does not run afoul of the 6-month 10(b) statute of limita-
tions. Indeed, the Respondent seems to rely on some of this evidence
in support of its own positions. The violation alleged here occurred in
September 1997, well within the 10(b) period. The evidence discussed
above, submitted by Respondent, is simply background evidence useful
in explaining both Respondent’s September 1997 offer and Vice Presi-
dent Fretz’ letter of November 17, 1997, stating the basis for that offer.
Reliance on background evidence is clearly permissible to shed light on
events within the 10(b) limitations period. See Monongahela Power
Co., 324 NLRB 214 (1997).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 78
to evaluate the testimony since there was no reliable evidence
as to which employees actually did obtain such employment or
whether such employment was comparable to their former em-
ployment. In any event, however, it would seem that this factor
would cut the other way. If more represented employees ob-
tained comparable offers from the new employer, they would
not be entitled to severance pay and Respondent would be
spending less on severance pay for the represented employees
as a group. All of Respondent’s severance pay proposals,
whether they applied to represented employees or unrepre-
sented employees, provided for forfeiture if offers of compara-
ble employment were made to the employees by the new
owner. This was not therefore an appropriate basis to distin-
guish between represented and unrepresented employees.
Fidler also referred to a need for a so-called “smooth and or-
derly transition” to the new owner. That reference, however, is
not only ambiguous, because it does not appear to deal with
costs, but irrelevant. To the extent that it was meant to suggest
that employees represented by the Union were somehow inter-
fering with operations prior to the sale, there was no evidence
of that in April 1997. In any event, both Fretz and another
witness for Respondent testified that the alleged interference
had nothing to do with severance pay issues.
Fidler also testified that Respondent hoped to achieve cost
savings in bargaining with its unions. At the time, in early
April 1997, Respondent understandably still wanted to negoti-
ate agreements that would facilitate the sale of its marine opera-
tions. But Fidler’s testimony is not specific enough to show
that the substantial difference between the severance allocated
for represented employees and that allocated for unrepresented
employees was rationally based on a need to recoup cost con-
cessions attained in the unrepresented units but not in the repre-
sented units. Elsewhere in his testimony, Fidler referred to the
1997 vacation pay concessions made by the unrepresented cap-
tains, but not, apparently, by other unrepresented employees.
Fidler gave no dollar figures on those vacation pay concessions,
although a document received in evidence contains an assertion
that this could amount to some $225,000. Fidler also referred
to frozen merit increases for unnamed unrepresented employ-
ees. But no dollar figures were given for that item either.
Fidler’s testimony about the cost savings he hoped to achieve
in the represented units is likewise not specific enough to make
comparisons. He testified, for example, that Respondent hoped
to obtain, in negotiations with the Union, between 50 and 100-
some thousand dollars in “expense reduction savings.” He
hoped to achieve similar savings from the other union with
which Respondent bargained. But there is no further specificity
in the alleged “expense reduction savings,” and no indication
that any of those savings were equivalent to the merit pay con-
cession obtained in the unrepresented unit. Although Fidler
also referred to vacation pay savings—at one point overestimat-
ing the amount attributable to the Union’s bargaining posi-
tion—that item was not a significant factor in the Respondent’s
overall analysis. Respondent’s chief negotiator, Bauman, esti-
mated that the 1-week severance package, augmented by vaca-
tion pay, amounted to 1.2 or 1.3 weeks of severance for the
employees represented by the Union. Moreover, at the time
Fidler was making his allocation decision, in April 1997, the
Respondent was rejecting the Union’s effort to obtain vacation
pay. Only later did Respondent agree to give vacation pay to
the employees represented by the Union, in an attempt to obtain
ratification of the first agreement. In any event, the vacation
pay eventually paid out to those employees was only a small
portion of the substantial difference in allocations between
represented and unrepresented employees. It alone could not
have explained that difference.11
Finally, what ultimately confirms a discriminatory motive on
this record is that Respondent never even made the severance
payments to the employees represented by the Union that it had
offered in bargaining. Fidler testified that he knew of no other
instance, in his 31 years of experience with Respondent, in
which no severance payments had been made to a group of
involuntarily terminated employees. There was no cost issue
preventing such payments; indeed, they had already been budg-
eted and Fidler admitted that the payments could have been
made. Obviously, the Union was not in a strong bargaining
position after receipt of the September 1997 offer because the
Respondent was essentially out of business. But the Respon-
dent at some point removed even the 1-week severance offer
from the table, although it was told in the fall of 1998 that the
offer might then be acceptable. Ordinarily, an employer is enti-
tled to implement its last best offer when the parties have
reached a legitimate impasse. Respondent’s failure to do so
and make any severance payments in this case is telling. It
confirms that union animus and not recouping costs was the
motivation for its treating employees represented by the Union
differently from unrepresented employees.
In these circumstances, I find that the General Counsel has
proved that a reason for Respondent’s failure to offer the em-
ployees represented by the Union the same severance benefits
offered and paid to unrepresented employees was its desire to
retaliate against those employees because of the past bargaining
positions taken by their bargaining agent. The Respondent has
not proved that it would have acted in the same way absent its
motive to retaliate against the Union.12
Respondent spends much of its brief arguing that unlawful
intent cannot be inferred from an employer’s economic bar-
gaining position. But that is not this case. I have found evi-
dence of discriminatory motive that explains Respondent’s
failure to make the same severance offer that it made to unrep-
resented employees. That evidence is independent of the Re-
spondent’s bargaining position itself. Indeed, it was Vice

11 Other parts of Fidler’s testimony are difficult to assess and of little
use in analyzing this issue. His reference to represented units being
uncompetitive has no meaning independent of cost-savings considera-
tions, which are discussed above. Fidler also testified that the other
union, SMEA, had been more responsive to cost-savings, on the vaca-
tion pay issue, for example, than SMLOA. But that testimony is irrele-
vant to the issue of why the severance amounts allocated for the repre-
sented employees were so much less than those for the unrepresented
employees. Finally, Fidler’s testimony concerning the amount Respon-
dent would gain from the sale of its marine assets does not explain the
difference in treatment between the represented and unrepresented
employees. Even though Fidler testified that, in April 1997, he thought
the Respondent would break even on the sale, he also testified that the
Respondent eventually netted between $ 4 and 5 million.
12 See Wright Line, 250 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 482 U.S. 393 (1983).
SUN TRANSPORT, INC. 79
President Fretz’ letter, which unlawfully focused on the Un-
ion’s bargaining position, that spawned the complaint in this
case. American Ship Building Co. v. NLRB, 380 U.S. 300
(1965), cited by Respondent (Br. 34), is not to the contrary;
rather it supports my analysis. In that case, the Supreme Court
held that an employer’s decision to lock out employees for
bargaining positions taken by their bargaining agent was not
unlawful “absent some unlawful intention.” Id. at 312–313.
That unlawful intention is present here.
Contrary to Respondent’s contention, it is not significant that
the General Counsel has not alleged, and indeed dismissed a
charge alleging, that Respondent failed to bargain in good faith.
I have made no finding as to whether or not Respondent bar-
gained in good faith. Nor can I agree with the position taken in
Respondent’s brief that I must presume that Respondent did
bargain in good faith. As the issue is not before me, I make no
presumption as to good-faith bargaining, one way or the other.
Likewise irrelevant is Respondent’s discussion in its brief of
what kinds of bargaining positions an employer can and cannot
take without violating Section 8(a)(5) and (1) of the Act. The
Board is not permitted to deal with allegations that were neither
alleged nor litigated. See Radio Officers v. NLRB, 347 U.S. 17,
53–54 (1954); and Griffin Pipe Division, 136 NLRB 1669,
1674 fn. 10 (1962), enfd. 320 F.2d 656, 658–659 (7th Cir.
1963).
I recognize that Respondent’s basic contention is that it bar-
gained over severance pay and reached agreement with Union
negotiators on the matter twice, only to have the bargain re-
jected by the employees. But that contention, although superfi-
cially appealing, is unavailing. The Union negotiators’ unrati-
fied agreement to accept the less generous package does not
preclude a finding of discrimination in the failure to offer the
more generous package. The Union negotiators cannot be
faulted for recommending acceptance of the best they could get
in the face of discrimination that could not be remedied until
the matter was litigated. There is no waiver of rights in such
circumstances. See NLRB v. Erie Resistor Corp., 373 U.S. 221,
237 and fn. 14 (1963); and 328 F.2d 723, 726–727 (3d Cir.
1964) (decision on remand).
CONCLUSION OF LAW
By discriminatorily failing to offer the same severance bene-
fits to employees represented by the Union as were offered and
paid to unrepresented employees, Respondent has engaged in
an unfair labor practice affecting commerce within the meaning
of Section 8(a)(3) and (1) of the Act.
REMEDY
Having found that the Respondent has engaged in an unfair
labor practice in violation of the Act, I shall recommend that it
be ordered to cease and desist therefrom and take certain af-
firmative action to effectuate the policies of the Act. Because
Respondent has basically gone out of the marine transportation
business and has no employees, the notice that would normally
be posted is to be mailed to the homes of the affected employ-
ees. See Jefferson Smurfit Corp., 325 NLRB 280 fn. 2, 301–
302 (1998).
Consistent with the violation found, I conclude that, absent
unlawful discrimination, Respondent would have offered the
employees represented by the Union the 2 weeks per year of
service offered and paid to unrepresented employees rather than
the 1-week per year package it actually offered. The General
Counsel asks that Respondent be ordered to pay the employees
represented by the Union the same 2-week package given to the
unrepresented employees. There is a problem with that rem-
edy, however, in the circumstances of this case. Although the
September 1997 offer was discriminatory, it was made in the
context of bargaining negotiations that cannot be reconstructed
at this time, 3 years after the Respondent has effectively gone
out of business. More importantly, since the 2-week severance
package was never offered to the Union in negotiations, the
General Counsel’s proposed remedy seems to run afoul of H.K.
Porter Co. v. NLRB, 397 U.S. 99 (1970). In that case, the
Board found that an employer unlawfully refused to agree to a
contract proposal that it check off union dues because it did not
want “to aid and comfort the union.” The Supreme Court did
not disturb the unfair labor practice finding, which was en-
forced by the court of appeals, but it made clear that the Board
does not have the remedial authority to compel an employer to
implement a contractual provision that was never offered to a
union in bargaining. Id. at 102. Although H.K. Porter in-
volved only Section 8(a)(5) of the Act, the Court’s discussion
of remedy applies, in my opinion, to the 8(a)(3) violation in this
case, particularly, where, as here, the gravamen of the violation
is a discriminatory failure to make a particular offer. Compare
Darling & Co., 170 NLRB 1068, 1071–1073 (1968), enfd. 420
F.2d 63 (7th Cir. 1970) (failure to grant benefits).
There is, however, no impediment to ordering Respondent to
pay the 1-week severance package that it did offer to the Union
and which it has not, to date, paid. Accordingly, I shall rec-
ommend that the Respondent be ordered to pay the employees
represented by the Union the 1-week per year of service sever-
ance package it offered to the Union. Such payment will carry
the same requirements contained in the Respondent’s Septem-
ber 1997 offer, including, for example, the requirement that the
employees sign a general release before receiving their sever-
ance pay. In all the circumstances, I find that this remedy is
fair and reasonable. It returns the employees to a position as
close to the situation that would have obtained, but for the un-
fair labor practice, as is possible at this time.13
[Recommended Order omitted from publication.]

13 The severance payments are to include interest from the date of
the Respondent’s September 1997 offer, in accordance with New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).