Ace Tank and Heater Co.

National Labor Relations Board - Board Decisions

Oct 2, 1967

167 N.L.R.B. 663 (N.L.R.B. 1967)

ACE TANK & HEATER CO.
Ace Tank and Heater Co. and Lionel Richman.
Case 21-CA-6262
October 2, 1967
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On March 24, 1965, Trial Examiner Wallace E.
Royster issued a Decision and Recommended
Order in the above-entitled case, finding that
Respondent had engaged in and was engaging in
certain unfair labor practices, and directing it, inter
alia, to offer immediate reinstatement to certain em-
ployees who were unlawfully discharged while on
strike, and to make these employees whole for any
losses' sustained as a result of any denial of rein-
statement. No exceptions having been filed, the Na-
tional Labor Relations Board issued an Order on
April 22, 1965, adopting the Recommended Order,
and the Order of the Board was enforced by the
United States Court of Appeals for the Ninth Cir-
cuit on August 11, 1966.
On October 10, 1966, the Regional Director for
Region 21 issued and served upon the parties a
Backpay Specification and Notice of Hearing. The
Respondent filed an Answer to the Backpay
Specification on October 24, 1966.
On December 15, 1966, Trial Examiner James
R. Hemingway conducted a hearing to determine
the sufficiency of Respondent's conduct in respect
to reinstatement and to ascertain the amounts of
backpay owing under the Board's Order as en-
forced. On March 15, 1967, the Trial Examiner is-
sued his Supplemental Decision, attached hereto,
which awards backpay to one employee and denies
an award of backpay to another. Thereafter, the
General Counsel filed exceptions to the Trial Ex-
aminer's Supplemental Decision and a brief in sup-
port of these exceptions. No exceptions or brief
was filed by Respondent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Supplemental Decision, the ex-
ceptions and the brief, and the entire record in the
I In the absence of exceptions thereto , we adopt pro forma the Trial Ex-
aminer 's award of backpay to Ronald Priefer in the amount of $188 29
plus interest
'See Gopher Aviation , Inc , 160 NLRB 1698, The Celotex Corpora-
tion, 146 NLRB 48, enfd as modified 364 F 2d 552 (C A 5)
S Where an employee was laid off or on a leave of absence, the policy
required that coverage cease in the case of a layoff at the end of the first
663
case, and hereby adopts the findings, conclusions,
and recommendations' of the Trial Examiner, to the
extent consistent herewith.
On October 12, 1964, Jose Ramirez and other
employees of Respondent began a strike in protest
against Respondent's failure to reach an agreement
with their bargaining representative. Three days
later Respondent discharged the strikers without
having first hired replacements. The Trial Ex-
aminer, in the first proceeding of this case, found
that the discharges were unlawful, but that they had
not prolonged the strike. Thus, pursuant to
established Board practice, he ordered the rein-
statement of the striking employees with backpay
only from the dates on which they had made uncon-
ditional requests for reinstatement.2 His order was
subsequently adopted by the Board and enforced by
the United States Court of Appeals.
Respondent's employees were covered by a non-
contributory group health insurance policy. Under
the terms of the policy any employee who was ter-
minated would cease to be covered after the last
day of the month in which his employment ceased.
The policy provided that discontinuance of active
work was to be deemed termination of employment
for insurance purposes. Exceptions to this rule were
specified for employees absent because of sickness,
temporary layoffs, or leaves of absence,3 but there
was no mention of strikers.
When Respondent sent in its monthly premiums
for November 1964, it omitted from the list of
covered employees the names of the strikers, all of
whom had theretofore been unlawfully discharged,
and no premiums were paid for them. As a result,
their insurance lapsed cn November 1, 1964. The
evidence does not show that the strikers were
notified of Respondent's failure to pay the premi-
ums or of the cancellation of their insurance.'
While Ramirez was on strike, his wife was
hospitalized. She was released on January 24,
1965, the day before Ramirez applied for reinstate-
ment with Respondent. Ramirez returned to work
on January 26. On January 31, 1965, his wife was
again hospitalized with a heart attack. She remained
in the hospital until March 6, 1965, and then was
under almost constant medical care until the follow-
ing January.
Ramirez sought compensation from the insurance
carrier for the medical expenses incurred by his
wife's two hospitalizations. Both claims were de-
nied- the first because his insurance was not in ef-
fect at the time; the second because the policy
deferred coverage of dependents who were con-
fined in a hospital on the effective date of coverage,
and in the case of a leave of absence at the end of the 12th month following
the month in which the layoff or leave began
' The policy provided for certain conversion privileges which would
have allowed the strikers to obtain individual policies, if they had sub-
mitted applications within 31 days of the termination of their coverage
The individual policies would have provided only a portion of the benefits
available under the group plan
167 NLRB No. 94
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until such time as their release from the hospital.
The insurance company said that the effective date
of coverage for Ramirez was February 1, 1965,5
and that since Mrs. Ramirez was hospitalized on
January 3 1, she was not covered by the policy.
The backpay specification alleged that Respond-
ent had the obligation to make Ramirez whole
under the Board's Order and the court's decree by
compensating him for the amount that he would
have recovered under the insurance policy if
Respondent had not canceled it and had not failed
to renew it until February 1, 1965. The Trial Ex-
aminer in this proceeding found that Ramirez was
not entitled to insurance benefits while he was on
strike, and that Respondent had reinstituted the in-
surance coverage at as early a date as was possible
under the terms of the insurance contract. Con-
sequently, he dismissed Ramirez' claim. We agree
with the Trial Examiner that Respondent is not
obligated to compensate Ramirez for medical ex-
penses incurred while he was on strike. However,
we find that Respondent is liable for those expenses
incurred after Ramirez' reinstatement, which he
was unable to recover from the insurance carrier.
Although Ramirez was unlawfully discharged
while he was engaged in a strike, he was not entitled
to backpay until January 25, 1965, the date on
which he requested reinstatement. Despite the
discharge, he was in no better situation than an un-
fair labor practice striker. As we have stated, an
employer is not required to finance a strike by pay-
ing wages for work not performed,6 and we have
found that wages include such deferred benefits as
retirement and vacation benefits and health in-
surance premiums.' On several occasions, we have
required that employees be made whole for in-
surance benefits lost as a result of the employers'
discrimination against them.8 But in those cases the
employees were entitled to backpay for the periods
in which the medical expenses were incurred. Since
Ramirez was not entitled to wages or insurance
coverage before January 25, the Trial Examiner
was correct in denying the claim for his wife's first
hospitalization.
The General Counsel contends, however, that
Respondent's failure to pay the premiums for
November and the months thereafter, coming as it
did on the heels of the unlawful discharges, was in
itself a discriminatory act for which Ramirez was
entitled to be made whole. We cannot agree. The
discrimination here was in the discharges. But as
found in the unfair labor practice proceeding, the
discharges did not prolong the strike. The Respond-
ent cannot, therefore, be said to have committed
a further act of discrimination by failing to pay
premiums, for, as we have noted, it was not
obligated to pay either wages or premiums for those
employees who were on strike. Its failure to pay
premiums was no more discriminatory than its
failure to pay wages.
However, upon his return to work Ramirez was
entitled under the remedial order in the unfair labor
practice proceeding to full reinstatement with all
rights and privileges which he had enjoyed before
he went on strike.9 Before October 12, 1965, he
and his dependents had been fully covered by the
group health insurance policy. This was a condition
of employment to the immediate restoration of
which he was entitled upcn his return to work.10
Respondent, however, had unlawfully discharged
him. When he went back to work, Ramirez was
treated as if he were a new employee with respect
to his insurance coverage. As a result, he was sub-
ject to a delay in the reinstitution of this
coverage-a delay which, short as it was, was criti-
cal in this case. His reinstatement was thus in-
complete.
The Trial Examiner concluded that Respondent
was not responsible for the delay in the restoration
of the insurance coverage since such delay was
compelled by the terms of the insurance contract;
he therefore held that Respondent had no obligation
to make Ramirez whole for his losses. Assuming
that the same situation would have prevailed under
the insurance contract even if Ramirez had not been
terminated, the fact remains that Respondent was
a party to that contract and must bear responsibility
for provisions. which unjustly penalize strikers and
prevent their complete reinstatement. In Cone
Brothers Contracting Company, supra, and C. B.
Cottrell & Sons Company, supra, we held em-
ployers to be responsible for the restoration of
returning strikers' insurance benefits, despite the
terms of the policies themselves.
In Cone Brothers, we stated:
at the time of the discriminatory termina-
tions and the strike which followed as a result,
the right to insurance coverage had accrued to
the employees. This insurance coverage
represented a job benefit which arose from the
employment relationship and which had vested
in the employees as of the date*of the unlawful
S Although it was not clearly stated in the certificate of insurance, which
was admitted into evidence, an employee's coverage apparently began on
the first day of the month following the date on which he began employ-
ment In any event, the policy did provide that an employee's dependents'
coverage was to begin on the date that the employee first became eligible
for the insurance or the first day of the month following the date that the
employee filed a request for dependent coverage, whichever was later
6 General Electric Company, 80 NLRB 510
7 Mooney Aircraft, Inc, 148 NLRB 1057, enfd 366 F 2d 809, (C A 5,
1966), General Electric Company, supra , W W Cross and Company,
Inc, 77 NLRB 1162, enfd 174 F 2d 875 (C A 1), Inland Steel Com-
pany, 77 NLRB 1, enfd 170 F 2d 247 (C A 7 ), cert denied on this issue
336 U.S 960 ( 1949) See dissent in Quality Castings Company, 139
NLRB 928, enforcement denied 325 F 2d 36 (C A 6, 1963)
'Rice Lake Creamery Company, 151, NLRB 1113, enfd as modified
365 F 2d 888 (C A.D C.), Deena Artware, Incorporated, 112 N LRB 371,
enfd 228 F 2d 871 (C A 6), Knickerbocker Plastic Co, Inc, 104 N LRB
514, enfd 218 F 2d 9l7 (C A 9)
° Tennessee Packers, Inc , 158 N LRB 1316
10 Cone Brothers Contracting Company, 158 NLRB 186, C B Cot-
trell & Sons Company, 34 N LRB 457
ACE TANK & HEATER CO. 665
discharges and protest strike. It could not, of
course, be lost to employees thereafter by vir-
tue of an unlawful termination, or forfeited by
participation in an unfair labor practice strike.
In the latter connection, it is true that strikers
may incur certain economic losses, such as
wages whose sole aspect is monetary compen-
sation for work performed during the employ-
ment relationship. But strike activity does not
entail acceptance after the strike of a smaller
quantum of vested job rights and privileges. I t
If Ramirez' insurance rights had been restored to
their prestrike status immediately upon his rein-
statement on January 26, 1965, his wife would not
have been excluded from coverage under the pol-
icy. Because of his incomplete reinstatement,
Ramirez sustained losses for which he should be
reimbursed in this proceeding. We shall therefore
order that he be made whole for those expenses he
would have recovered under the group insurance
plan but for such incomplete reinstatement, with in-
terest thereon at the rate of 6 percent per annum,
from the date on which the medical expenses were
paid.
ORDER
TRIAL EXAMINER'S DECISION IN SUPPLE-
MENTAL BACKPAY PROCEEDINGS
STATEMENT OF THE CASE AND OF PRIOR PROCEEDINGS
JAMES R. HEMINGWAY, Trial Examiner: On March 24,
1965, Trial Examiner Royster issued a Decision and
Recommended Order herein. No exceptions having been
filed, the National Labor Relations Board, herein called
the Board, issued an Order on April 22, 1965, adopting
the Recommended Order, and the Order of the Board
was enforced by the United States Court of Appeals for
the Ninth Circuit on August 11, 1966. Thereafter, a con-
troversy having arisen over the, amount of backpay due to
two of the discriminatees, tlib,Regional Director for Re-
gion 21, pursuant to authority conferred upon him by the
Board, on October 10, 1966, issued backpay specifica-
tions, and the Respondent, on October 24, 1966, filed an
answer thereto wherein it admitted most of the allegations
of the backpay specification, but took issue with the
amount of backpay claimed to be due to one of the two
employees involved and denied liability for the amount of
loss claimed under a health insurance plan claimed for
another. Pursuant to notice, a backpay hearing was held
before me on December 15, 1966.
Following the hearing, counsel for the General Counsel
and for the Respondent submitted briefs, which have
been considered. Upon the entire record in the case I
make the following:
On the basis of the foregoing Supplemental Deci-
sion and the entire record in this case, the National
Labor Relations Board hereby orders that the
Respondent, Ace Tank & Heater Co., Santa Fe
Springs, California, its officers, agents, successors,
and assigns, shall:
1. Pay Ronald Priefer backpay in the amount of
$188.29 with interest thereon at the rate of 6 per-
cent per annum from January 18, 1965, until paid.
2. Reimburse Jose Ramirez in the amount of
$2,613.05,12 representing the medical expenses in-
curred by his wife following his reinstatement on
January 26, 1965, until December 31, 1965,13
which expenses would have been recovered by him
under Respondent's group medical insurance plan
if his right to benefits under the policy had been im-
mediately and fully reinstituted, with interest
thereon at the rate of 6 percent per annum, from the
date on which such medical expenses were paid.
" Footnotes omitted Although the quoted portion speaks of an unfair
labor practice strike, the same would hold true for an economic strike
12 This figure includes $612 for hospital room and board, $732 83 for
extra hospital charges , $ 140 for physicians ' visits in the hospital, and
$ 1,128 22 for nonscheduled health benefits We order that Respondent
reimburse Ramirez for expenses recoverable under the nonscheduled
benefits portion of the policy , even though that provision excludes preex-
isting conditions , for full reinstatement requires that strikers not be
precluded from recovering benefits for conditions which arose while they
were on strike
" The General Counsel claimed compensation only until December
31, 1965, on which date Respondent ' s insurance contract was replaced
with another
1. FINDINGS OF FACT
A. Backpay Claim ofRonald Priefer
Priefer's backpay period began on January 18, 1965,
the approximate date when he unconditionally requested
Respondent to reinstate him to his former position. His
backpay period ended on March 18, 1965, the date when
he refused Respondent's offer of reinstatement.
At the beginning of the backpay period on January 18,
1965, Priefer had employment as a helper at Advance
Galvanizing in Vernon, California, at a wage rate of $2.35
an hour. In this capacity he helped to galvanize tanks and
beams. His work at the Respondent's plant had been as
a welder, at a rate of $3 an hour. Priefer's hours at Ad-
vance Galvanizing were 3:30 p.m. to midnight, but he
often worked overtime as late as 3 or 4 o'clock in the
morning. During the backpay period, Priefer went to the
union hall about three times a week to get aid in his search
for work, and he went to inquire about work at numerous
places of business of employers where he tried to find a
-job as a welder. Most of Priefer's search was made within
10 miles of his home in Bell Gardens. The Respondent's
plant in Santa Fe Springs was about 6 miles from Priefer's
home.
Among other places where Priefer sought employment
was Downey Welding Manufacturing in Downey,
California. The foreman there told Priefer that he would
give him a job, but that it would not be until the employer
had received a big contract which it wa. expecting. The
rate at Downey Welding would have been $3.30 per hour,
but the job would have lasted only for the duration of the
one contract which the employer expected to receive.
Downey Welding finally did offer Priefer a job in March
1965, but by this time Priefer had obtained a welding job
at Manchester Tank & Equipment, in Lynwood,
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
California,' at the rate of $2.75 per hour, the starting rate.
Because Priefer believed that his job at Manchester Tank
would he permanent, whereas the one at Downey would
not, he refused the job at Downey Welding, despite the
higher rate at the latter.
On one occasion, before Priefer got his job with
Manchester Tank on March 5, 1965, he was directed by
the Union to a prospective job at United Concrete in
Baldwin Park, California, a distance of some 30 miles
from Bell Gardens. He testified that he went to the
United Concrete plant in Baldwin Park because he did
not know how long it would take him to get there and that
it was only after he had made the full trip that he had de-
cided that it was too long a trip and that it would cost him
too much for transportation On cross-examination,
Priefer testified that he "believed" he could have gotten
a job at United Concrete as a welder. It does not appear
from the record when the job would have started, had
Priefer been willing to take such a job. He testified only
that they were not hiring when he reached United
Concrete but were only taking applications.
It is the Respondent's contention that Priefer incurred
a willful loss by his failure to take employment at either
United Concrete or at Downey Welding I find no merit
in the Respondent's contention as to either employer.
The record does not show, when the job at United
Concrete would have started, but even assuming that it
would have started during the backpay period, I find that
Priefer was not obligated to take work at such a distance.
There is no evidence with regard to the availability of
public transportation, but from an examination of a map
of the Los Angeles area I would conclude that any public
transportation to Baldwin Park from Bell Gardens would
be unsatisfactory. Priefer was driving a 9-year-old car,
and a round trip of 60 miles a day would put 5 times as
much wear on his car as would the distance from his
home in Bell Gardens to the Respondent's place of busi-
ness. Even assuming that his automobile would have
given him reliable transportation for a long period of time,
the cost of such transportation to United Concrete would
have been 5 times as great as from his home to the
Respondent's place of business. The Respondent argues
that "it is a generally accepted fact, and indeed a normal
way of life in southern California to drive 30 or more
miles to work each way each work day." Even if what the
Respondent asserts (for which there is no evidence in the
record) is true, it does not appear that the persons who
drive 30 or more miles a day are all driving 9-year-old
cars and are all making no more than $3 an hour. Priefer
was employed, at the time of his trip to Baldwin Park, at
the rate of $2.35 an hour, which would have been for an
8-hour day, a total of $18.80. At United Concrete, he
could have made $24 for an 8-hour day, but his transpor-
tation would have cost him, at the rate of 10 cents per'
mile, $6, or $4.80 a day more than to Respondent's place
of business from Priefer's home. In view of this, the fact
that Priefer, although making less money per hour at Ad-
vance Galvanizing, was working overtime occasionally
at the rate of time and a half,2 and that it is not shown that
Priefer would have had any overtime work at United
Concrete, I conclude that Priefer was not obliged to ac-
cept work at United Concrete. On all the evidence I find
that Priefer incurred no willful loss in failing to take em-
ployment at Baldwin Park.3
I also find no willful loss in Priefer's rejection of an
offer of a job at Downey Welding, which job was shown
to have been only of a temporary nature. At the time of
the hearing, Priefer had been employed at Manchester
Tank for nearly 2 years, and his judgment that that job ap-
peared to him, in March 1965, to be permanent appears,
in retrospect, not to have been bad judgment. Further-
more, 2 months after he started at Manchester Tank,
Priefer was given his first raise, and he received several
after that, ultimately receiving more than he had received
at the Respondent. He had been earning $3.30 per hour
for about a year and a half before the date of the backpay
hearing.
The Respondent contends that the General Counsel
failed to prove any expenses for Priefer because "nothing
was offered into evidence to show any specific expenses
incurred or any method of calculation for arriving at any
expenses allegedly incurred." The General Counsel fol-
lowed the customary method. Priefer estimated the mile-
age he traveled between his home, from which he started
his trips in search of a job as a welder, and the place of the
employer he visited. Based on the total mileage of
Priefer's trips, the General Counsel computed the cost of
such trips by private automobile (the transportation used
by Priefer) by multiplying the total number of miles
traveled by 10 cents per mile as the cost of operating an
automobile. A figure of 10 cents a mile has repeatedly
been used by the Board as a reasonable allowance for
operation of a private automobile.4 The 10-cent rate is
based on the regulations of the Federal Government
which determine the amount allowable to employees of
the government for use of private automobiles in official
business. The allowable amount was fixed by Congress
after a comprehensive study of the actual cost of operat-
ing automobiles by Federal, State, and private agencies.
The figure was earlier set at 7 cents a mile (Travel Ex-
pense Act of 1949, P. L. 92, 81st Cong., 1st Sess.), but it
has been increased since then to 10 cents a mile. In view
of the increase in the cost of gasoline, insurance, automo-
biles, and repairs since the 10-cent-a-mile allowance was
adopted, I find that 10 cents a mile has now assumed an
aspect of even greater reasonableness to the Respondent
than it would have been at the time when the rate of 10
cents a mile was first put into effect.
Respondent's reference to Wigmore on Evidence is
misdirected because the sections referred to in Respond-
ent's brief deal with failure to produce available cor-
roborating evidence. There was no showing of the ex-
istence of any written documents which would have cor-
roborated Priefer's testimony. Priefer's own testimony of
his travel in search of work as a welder is competent
evidence. Failure to call possible third party witnesses to
corroborate Priefer's testimony, at best, would bear on
Priefer's credibility. However, from my observation of
i Priefer called it Manchester Welding Actually there are two
proprietary names listed in the telephone book at the same address
Manchester Tank & Equipment and Manchester Welding & Fabricating
Co I find no fatal variance between the pleadings and the proof
2 Earnings figures tend to establish that Pnefer earned about $80
between January 18 and March 18 by working overtime
3 Concerning distance as a factor in justification for turning down gain-
ful employment, see Nickey Chevrolet Sales, Inc , 160 NLRB 1279 In
that case , the discriminatee was not already working , as was Pnefer Yet
the Board held that the discrimmatee was not required to accept available
employment at a considerable distance from his home
" Charles T Reynolds Box Company, 155 NLRB 384, 387, Rice Lake
Creamery Company, 151 NLRB 1113, 1114, fn 5, and 1147, General
Engineering, Inc. and HarveyAluminum (incorporated), 147 NLRB 936,
942
AC E TAN K & H EATER CO. 667
his demeanor on the stand, I find him to be an honest wit-
ness and I draw no inference from the failure of the
General Counsel to subpena foremen, personnel
managers, or other persons to whom Priefer might have
spoken about work, particularly since such persons
would be no more likely to remember Priefer than any
other applicant for employment who made inquiry and
was given a negative answer.
Priefer named eight employers where he sought work
other than the two where he actually obtained interim em-
ployment, and he made trips about three times a week to
the union hall to inquire about jobs .5 Based on Priefer's
estimate of distances, I find that in the 6-week period
between January 18 and March 5, 1965, Priefer drove an
estimated 426 miles seeking employment. The Respond-
ent did not disagree with Priefer's estimates of dis-
tances. The original figure shown for Priefer's expen-
ses in the Backpay Specifications was $56, but the
General Counsel, at the close of the hearing, amended
this to $42.60, based on a total estimated mileage of 426
miles. I find this to be a reasonable calculation, since it
does not include trips to Advance Galvanizing and to
Manchester Tank, to which Priefer might be presumed to
have gone at least once in search of employment before
he was hired by those companies."
I find that Priefer's gross and net backpay is as set forth
below:
Net
Gross Interim Less Interim Net
Back pa Earninge Expense s Earnings Backpay
$1,056.00 $910.31 $42.60 $867.71 $188.29
B. Backpay Claim ofJose Ramirez
Ramirez was one of the strikers who was discharged by
Respondent on October 15, 1964. He had previously
been employed by Respondent as an automatic welding
machine operator on the day shift in the tank department.
Ramirez applied for reinstatement to his former position
on January 25, 1965, and was reemployed by Respond-
ent on the following day. The backpay specifications al-
lege that Ramirez was not reinstated to his former posi-
tion , which was occupied by a replacement hired after his
discharge. In about August 1965, Ramirez was reinstated
to his former position. The failure to reinstate Ramirez to
his former position is not of material concern here, how-
ever, because the rate of pay for jobs given to Ramirez
was the same and he was covered by health insurance
from February 1, 1966.
Ramirez' claim is based upon expenses incurred by him
as a result of his wife's illness and her hospitalization for
two periods, one beginning on January 6 and ending on
January 23, 1965, and the other beginning January 31,
1965, and extending to beyond the end of that year. In
October 1964, at the time of the strike, Ramirez and his
dependents were covered under the terms of a group in-
surance plan wholly paid for by the Respondent. The
claim herein is only for such portions of the expenses oc-
casioned by Mrs. Ramirez' illness as would have been
paid under this policy up to December 31, 1965, when
the Respondent's insurance contract was replaced with
another.
The group health insurance covered hospital benefits,
surgical benefits, visits by physicians while the patient
was in the hospital, supplementary x-ray and laboratory
benefits, and certain nonscheduled health benefits, in ad-
dition to other items not material here. The insurance
contract contained a provision that the dependent's in-
surance would terminate on the last day of the insurance
month during which the insured ceased to be an insured
person. The insured (Ramirez) would cease to be an in-
sured person under the terms of the policy, among other
listed ways:
(b) on the last day of the insurance month during
which the Insured's employment with his employer
in the classes of employees eligible for insurance
hereunder shall terminate. Discontinuance of active
work by an Insured shall be deemed to constitute the
termination of his employment except that in the
case of the absence of an Insured from active work
because of
(1) sickness or injury, his employment may,
for the purposes of the insurance hereunder, be
deemed to continue until terminated by his em-
ployer, or
(2) temporary layoff, his employment may,
for the purposes of the insurance hereunder, be
deemed to continue until terminated by his em-
3 I have interpreted this to mean three times a ; week ; ml full I weeks , and twice ' each in the ^ portions; of the weeks at the ; beginning of the backpay
period and in which he obtained employment at Manchester Tank.
The General Counsel's computation apparently is reached as followsy
Round trips to:
Downey Welding & Manufacturing- 30 8 miles each 24
Conwell 8
Hanson Head 18
Butane Tank 14
United Concrete 60
H. & H. Wilson 10
National Tank 14
Atlas Engineering 12 160
Trips to Union @ 14 miles per round trip as follows:
Between January 18 and 22 2 round trips 28
Between January 24 and 29 3 round trips 42
Between January 31 and February 5 3 round trips 42
Between February 7 and 12 3 round trips 42
Between February 14 and 19 3 round trips 42
Between February 21 and 26 3 round trips 42
Between February 28 and March 4 2 round trips 28 266
Total Mileage: 426
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer, but in no case beyond the end of the in-
surance month next following the insurance
month in which the layoff begins, or
(3) leave of absence, his employment may,
for the purposes of the insurance hereunder, be
deemed to continue until terminated by his em-
ployer, but in no case beyond the end of the
twelfth insurance month next following the in-
surance month in which the leave begins.
In the case of any of the above exceptions, the in-
surance hereunder on such Insured shall automati-
cally cease on the date of such termination of his em-
ployment by his employer, as evidenced to the Com-
pany by the employer, whether by notification or
cessation of premium payment on account of such
Insured's insurance hereunder ....
The insurance contract also stated the date when the in-
sured and his dependents would become covered by the
policy. As to dependents, this provides:
If the insurance is afforded under the non-contribu-
tory plan each eligible person who files with the pol-
icyholder written request to be insured with respect
to his dependents is to be insured for the dependent's
insurance from the date he first becomes eligible for
such insurance or the first day of the insurance
month next following the date he files such request,
whichever is later ... provided, however, that
(b) if a dependent, other than a new-born child, is
confined in a hospital at the time the insurance would
otherwise become effective, the effective date of the
insurance with respect to such a dependent shall be
deferred until final discharge from the hospital ....
The insurance also contained a provision whereby an em-
ployee could continue his insurance after his termination
from active employment by making written application to
the insurance company within 31 days after termination
of the insurance under the contract accompanied by the
first premium.
When the Respondent paid the monthly premium, it
would make out a list of employees covered by insurance,
with revisions to include new employees and to omit em-
ployees no longer actively employed, and send it to the in-
surance company.- On such a list which was sent in for the
month of November 1964, the Respondent omitted the
names of the employees who went out on strike on Oc-
tober 14, 1964, and, as a result, no premium was paid for
them, and their insurance lapsed as of November 1, 1964.
There is no evidence that Ramirez made application for
an individual policy under the provisions of the agree-
ment as he was privileged to do, as previously set forth
herein.
The General Counsel's theory, as set forth in his brief,
is not entirely clear. This is true more because of what he
avoids saying rather than what he does say in his brief.
He does not say specifically that it was Respondent's
duty to pay premiums on Ramirez' insurance in
November and December 1964 and January 1965, while
Ramirez was on strike, but this may be inferred from the
fact that the claim for loss described by the General
Counsel includes expenses incurred by Ramirez from
January 6, 1965, before he made application for reinstate-
ment. Furthermore, the General Counsel argues that,
because the exceptions to termination of coverage stated
in the insurance contract do not include the situation
where work ceases as a result of a strike, a striker, still
having employee status, should continue to be covered by
insurance even though he has discontinued active work.
However, by the terms of the insurance contract , only in
the excepted cases listed did coverage continue although
the employee was not actually working . The General
Counsel 's argument would require the insurance contract
to be rewritten to add another exception - discontinuance
of active work because of a strike . This cannot be done.
The General Counsel avoids mention of "lapse" of the
insurance for nonpayment of premiums as distinguished
from "cancellation" by the Respondent because of an un-
lawful discharge . In his brief , the General Counsel says:
"Since it appears that Respondent cancelled Ramirez' in-
surance because it unlawfully equated striking with 'ter-
mination of employment ' that cancellation was, itself,
along with his discharge , a discriminatory act An award
to Ramirez for the insurance benefits he lost will, there-
fore, remedy Respondent ' s discriminatory act and will
not constitute payment to a striker for work not per-
formed." This reasoning is rather difficult to follow when
it is to be taken with other portions of the General Coun-
sel's brief, such as his statement that the benefits accruing
under the insurance plan are to be considered part of
" wages" [citing W. W. Crosc and Company, Inc. v.
N L.R.B., 174 F.2d 875, 878 (C.A. 1)1. The General
Counsel alludes to the principle enunciated in General
Electric Company, 80 NLRB 510, that an employer is
not required to finance a strike by paying strikers for
work not performed , but he attempts to avoid application
of this principle to the instant case by arguing that the
cancellation of the strikers' insurance was a discriminatory
act just as much as was their discharge . This argument,
however, fails to differentiate lapse from cancellation. It
also ignores the fact that if wages are not required to be
paid during a strike , insurance premiums should not be
required to be paid by Respondent either; yet the General
Counsel makes no contention that Ramirez was entitled
to any wages between the time he went on strike and the
time he made application for reinstatement . The earliest
time, therefore, that Ramirez would have been entitled to
resumption of insurance benefits as well as wages, was
January 25 , 1965, the date of Ramirez' application for
reinstatement
The case at hand is distinguishable from such cases as
DeenaArtware, Incorporated , 112 NLRB 371, and Rice
Lake Creamery Company, 151 NLRB 113, where em-
ployers were required to pay losses that would have been
covered by insurance but for an unlawful discharge which
terminated the insurance company's liability, because in
those cases the backpay accrued immediately from the
date of the unlawful discharge and was not deferred, as
here, until employees on strike made application for rein-
statement. It is not contended here, any more than in
those cases , that the insurance company in any way vio-
lated its contract Here, too, the responsibility of restor-
ing insurance rights to Ramirez rested upon the Respond-
ent and not upon the insurance company. But since
Ramirez was not entitled to backpay before he had made
application for reinstatement, I find that the Respondent
did not have responsibility to act to restore insurance
benefits until January 25, 1965, the date when Ramirez
made application for reinstatement.
A question might arise, however, as to whether or not
the Respondent's responsibility to restore insurance
coverage attached as of January 25, 1965, even though an
application for insurance as of that date would not, under
the terms of the policy, have resulted in commencing the
insurance coverage before the first of February. If the
Respondent were to be held responsible for restoring
ACE TANK & H EATER CO. 669
immediate insurance coverage as of January 25, 1965, re-
gardless of the language of the policy, which made
coverage effective on February 1, 1965, then the
Respondent would be obligated here to reimburse
Ramirez for the expenses incurred following his wife's
return to the hospital on January 31, 1965, even though
the insurance company, itself, was not liable therefor 7
Because Ramirez' wife was in the hospital on February
1, at the time when his group insurance became effective
under the terms of the insurance contract, the contract
excluded liability as to him or his dependents until such
time as he or she should have left the hospital
Although the Trial Examiner in the original hearing
herein found that the Respondent's discharge of strikers
was an unfair labor practice, he found that the strike was
not prolonged by the unfair labor practices. However,
without other discussion of whether or not the strike was
converted to an unfair labor practice strike by the
discharge, the Trial Examiner applied the remedy custo-
mary in the case of unfair labor practice strikes8 by rquir-
ing reinstatement, upon application, even if it were neces-
sary to discharge any replacement hired after October 15,
1964.
Whether or not the strike here was an unfair labor prac-
tice strike, however, the strikers were not entitled to
backpay or restoration of other rights and privileges
under the Board's Order before they had made applica-
tion for reinstatement. Except that they could not be per-
manently replaced, the rights of unfair labor practice
strikers upon application for reinstatement would be the
same as those of economic strikers. When reemployed,
the strikers are entitled to be treated without discrimina-
tion in the restoration of their rights. True, when Ramirez
was reemployed by the Respondent on January 26, 1965,
he was not reinstated to his former position for some
months, but such failure on Respondent's part was not
causally connected with Ramirez' insurance rights. The
Respondent reinstituted Ramirez' insurance coverage at
as early a date as it was possible to for it to do under the
terms of the insurance contract. This is all it could do for
any returning striker, whether the strike was an economic
strike or an unfair labor practice strike. If Ramirez' de-
pendents were not entitled to reimbursement for medical
expenses under the policy, that was not because of any
omission on the part of the Respondent to reinstitute
group insurance coverage for Ramirez - that was only
because, under the terms of the insurance contract, no
payment was due to him or his dependents. It is unfortu-
nate for Ramirez that his wife could not delay her en-
trance into the hospital until February 2, 1965, when she
would have had a claim instead of entering on January 31,
1965, when that would bar the claim, but this circum-
stance was not the result of any discriminatory act or
omission by the Respondent.
The General Counsel adduced evidence to overcome
the appearance of a delayed filing of Ramirez' claim with
the insurance company. Since the insurance company de-
nied the claim because of the fact that Ramirez' wife was
in the hospital on the day when the insurance coverage
became effective and not because of any delay in filing
the claim, whether or not the delay was contributed to by
Respondent's conduct, I find this aspect of the evidence
to be irrelevant.
Upon all the evidence, therefore, I conclude that
Ramirez' claim for payment of hospital and other expen-
ses listed in the backpay specifications must be
dismissed.
RECOMMENDED ORDER
I recommend that the Board order Respondent to pay
to Ronald Priefer backpay in the amount of $188.29 with
interest thereon at the rate of 6 percent per annum from
January 18, 1965, until paid.'
I FURTHER RECOMMEND that the Board dismiss the
claim of Jose Ramirez.
' See Deena Artware, Incorporated, 112 NLRB 371, 375, Rice Lake
Creamery Company, 151 NLRB 1113, 1129
1 See Tom Joyce Floors, Inc , 149 NLRB 896, Valley Die Cast Corp,
130 NLRB 508
4 Isis Plumbing & Heating Company, 138 NLRB 716