Texaco, Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1982

259 N.L.R.B. 1217 (N.L.R.B. 1982)

TEXACO, INC. 1217
Texaco, Inc. and Leon J. Dove and Antonio 0. Do- ary 8, 1980, to such date as he was released from
minguez. Cases 28-CA-5937-1 and 28-CA- medical care."
5937-2 2. Substitute the attached notice for that of the
January 26, 1982 Administrative Law Judge.January 26, 1982
APPENDIX
DECISION AND ORDER APP
NOTICE To EMPLOYEES
BY MEMBERS JENKINS, ZIMMERMAN, AND POTED Y O E O TE
POSTED BY ORDER OF THE
~HUNTER~~ NATIONAL LABOR RELATIONS BOARD
On September 2, 1981, Administrative Law An Agency of the United States Government
Judge James T. Barker issued the attached Deci-
sion in this proceeding. Thereafter, Respondent The National Labor Relations Act gives all
filed exceptions and a supporting brief. employees the following rights:
Pursuant to the provisions of Section 3(b) of the To organize themselves
National Labor Relations Act, as amended, the Na- To form, join, or support unions
tional Labor Relations Board has delegated its au- To bargain as a group through a repre-
thority in this proceeding to a three-member panel. sentative they choose
The Board has considered the record and the at- To act together for collective bargaining
tached Decision in light of the exceptions and brief or other mutual aid or protection
and has decided to affirm the rulings, findings,' and To refrain from any or all such activity
conclusions of the Administrative Law Judge and except to the extent that the employees' bar-
to adopt his recommended Order2 as modified gaining representative and employer have a
herein. collective-bargaining agreement which im-
ORDER poses a lawful requirement that employees
become union members.
Pursuant to Section 10(c) of the National Labor WE WILL NOT withhold payment of sick and
Relations Act, as amended, the National Labor Re- accident enefits payale to the followin
lations Board adopts as its Order the recommended nam ed employees for the desiiod o
named employees for the designated period, orOrder of the Administrative Law Judge, as modi- oter e de againt e, b
otherwise discriminate against employees, be-fled below, and hereby orders that the Respondent, case o an nn a t em, o y
cause of any union activity by them, or by anyTexaco, Inc., El Paso, Texas, its officers, agents, of our employees, includng stre
of our employees, including strikes.successors, and assigns, shall take the action set
forth in the said recommended Order, as so modi- Antonio Dominguez-January 10, 1980,
fled: through February 18, 1980.
1. Substitute the following for paragraph 2(b): Leon Dove-January 8, 1980, through
"(b) Make Leon Dove whole by paying sick and such date as he was released from medical
accident benefits due him during the period Janu- care.
WE WILL NOT in any like or related manner
' Respondent excepts. inter alia, to the Administrative Law Judge's interfere with restrain or coerce our employ-
finding that Leon J. Dove was not released from medical care until Janu-
ary 14, 1980. We find, in agreement with Respondent, that the record is ees in the exercise of rights guaranteed them
not clear as to whether Dove was released on that date or I week earlier, by Section 7 of the Act.
as contended by Respondent. Therefore, we shall defer the determination
of the exact date Dove was released from medical care to the compliance WE WILL make whole Antonio Dominguez
portion of this proceeding, and will modify the Administrative Law and Leon Dove for sick and accident benefit
Judge's recommended Order accordingly. payments due them for the above-described
Member Jenkins adheres to his partial dissent in E L. Wiegand Div i .
sion. Emerson Electric Co.. 246 NLRB 1143 (1979), but notes that the time it was withheld, together with interest.
principles contained therein are not involved in this proceeding. Members
Zimmerman and Hunter note that they did not participate in EmersonTEA I
Electric and, inasmuch as the remedial issue raised in Member Jenkins' TEXACO, INC.
partial dissent is not presented here, express no opinion on that remedial
issue. DECISION
' The Administrative Law Judge correctly ordered that backpay with
interest be paid the discriminatees, but inadvertently failed to specify the STATEMENT OF THE CASE
applicable interest rate. In accordance with our established policy, we
hereby direct that interest on the backpay be computed in the manner set JAMES T. BARKER, Administrative Law Judge: This
forth in Florida Steel Corporation. 231 NLRB 651 (1977). See, generally, case was heard before me at El Paso, Texas, on Decem-
Isis Plumbing d Heating Co.. 138 NLRB 716 (1962). Member Jenkins ber 11, 1980, and February 17, 1981, pursuant to an
would award interest on the backpay due based on the formula set forth
in his partial dissent in Olympic Medical Corporation, 250 NLRB 146 order consolidating cases and consolidated complaint and
(1980). notice of hearing issued on July 16, 1980, by the Region-
259 NLRB No. 170
.
January 26, ary -
F n y
ERAPPNIX
_ .- --~~~~~~~~~NOTICE
, N To E L E
HUNTER ~~~~~~POSTED
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1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
al Director of the National Labor Relations Board for Emerson Electric Co., 246 NLRB 1143 (1979), Respond-
Region 28.' The complaint in Case 28-CA-5937-1 is ent violated Section 8(a)(l) and (3) of the Act by dis-
based upon a charge filed by Leon J. Dove, an individu- countinuing the accident and sick leave benefits of unit
al, on June 12, and the complaint in Case 28-CA-5937-2 employees Dove and Dominguez at the commencement
is based on a charge filed on June 16 by Antonio 0. Do- of the strike at the El Paso facility which began on Janu-
minguez, an individual.2 The consolidated complaint al- ary 8 and continued until on or about March 29. It is the
leges violations of Section 8(a)(1) and (3) arising from contention of the General Counsel that both Dove and
the action of Respondent in discontinuing the payment of Dominquez were on authorized sick leave at relevant pe-
sick leave benefits to Dove and Dominguez because the riods prior to January 8, and that, pursuant to a blanket,
Union had engaged in an economic strike against Re- previously announced policy, Respondent discontinued
spondent. The parties were provided full opportunity to the sick leave benefits to Dove and Dominguez without
make opening and closing statements, to examine and first acquiring information that the employees had affir-
cross-examine witnesses, introduce relevant evidence, mitively acted to show public support for the strike.
and to file briefs with me. Counsel timely filed briefs Respondent denies the commission of any unfair labor
with me. practices and asserts, initially, that the Emerson Electric
Upon the basis of the entire record, my observation of principle is not applicable in the factual circumstances of
the witnesses, and the briefs filed with me, I make the this case. In any event, Respondent contends, the rule in
following: Emerson Electric is unreasonable and conflicts with well-
FINDINGS OF FACT established principles of labor law.
1. THE BUSINESS OF RESPONDENT B. Pertinent Facts
At all times material herein, Respondent has been a 1. Background facts
corporation duly organized under the laws of the State
of Delaware, and has engaged in the business of refining At all material times Respondent has recognized the
and distributing gasoline and other petroleum products Union as the exclusive collective-bargaining representa-
throughout the United States, including El Paso, Texas. tive of all its approximately 125 operating and mainte-
During the 12-month period immediately preceding the nance employees employed at the El Paso facility. Arti-
issuance of the consolidated complaint herein, Respond- cle VIII of the collective-bargaining agreement which all
ent, in the course and conduct of its business operations, relevant prior times had been in effect between Respond-
purchased goods, materials, and services valued in excess ent and the Union includes as an employee benefit an ac-
of $50,000 in connection with its operations at its El cident and sick leave benefit plan, hereinafter referred to
Paso facility, and caused the same to be transported in as A & S benefits, and the constituent elements of the
interstate commerce and delivered to its El Paso facility plan are defined in an officially promulgated benefits
directly from suppliers located outside the State of plans handbook. In substance, the A & S plan is a non-
Texas. contributory benefit plan which provides for payment of
Upon the foregoing facts which are not in dispute, I benefits to regular employees with 1 year or more of
find that at all times material herein Texaco, Inc., has service who are absent from work due to illness or inury
been an employer engaged in commerce within the and are unable to work because of that illness or injury.
meaning of Section 2(2), (6), and (7) of the Act. Benefits are determined by length of service. Employees
with 10 years of service who otherwise qualify under the
11. THE LABOR ORGANIZATION INVOLVED plan to receive benefits are entitled to 13 weeks of full
I find that at all times material herein, Oil, Chemical pay and 39 weeks of half pay thereafter.
and Atomic Workers International Union, Local No. 4- As a consequence of negotiations between Respondent
612, AFL-CIO, hereinafter called the Union, is a labor and the Union, the parties entered into a memorandum
organization within the meaning of Section 2(5) of the of agreement renewing the previously existing collective-
Act. bargaining agreement between them to be effective from
January 8, 1979, through January 7, 1981. The January
111. THE ALLEGED UNFAIR LABOR PRACTICES 19, 1979, memorandum of agreement had the effect of
A. The Issues substantively modifying certain provisions of the previ-
ous agreement and of specificaly renewing all other
The General Counsel contends that under the princi- terms and provisions thereof. The memorandum of
ples enunciated by the Board in E. L. Wiegand Division, agreement provided, inter alia, that upon written notice
to the Company given no earlier than November 1, 1979,
Unless otherwise specified, all dates herein refer to the calendar year the parties agreed to negotiate with respect to the gener-
1980. al hourly wage scale, full-paid uniform health care bene-
I1 reject Respondent's contention that this matter is improperly before al h age scale ullpaid uniorm h h ce
the Board because it derives from charges filed by individual unit mem- fits ackage, and improvement in vacation schedules.
bers whose rights to proceed individually assertedly were extinguished The memorandum of agreement further provided that if
by reason of the strike settlement agreement achieved between the Union the parties failed to reach agreement on these specified
and Respondent requiring the Union to withdraw pending unfair labor subjects within 60 days after the giving of timely notice
practice charges and not to initiate new ones relating to strike conduct or
occurrences. See. e.g., Lodge 743 International Association of Machinists the Union would have the right to strike, but not prior
Corp., 337 F2d 5, 8-9 (2d Cir. 1964). to January 8, 1980. On November 1, 1979, Respondent
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TEXACO, INC. 1219
received the Union's notice of an intention to strike on from nonindustrial causes cease with the commencement
January 8, 1980. Prior to the strike, Respondent prepared of the strike.3
a 3-page document entitled, "Procedures in Case of Frank Smith, Respondent's supervisor of employees
Strike" and dispatched it to the Union and handed it out relations in the El Paso area, testified credibly that a
to all of the employees. In essence, the document expli- desire on the part of the Company not to finance the
cated Respondent's policy with respect to funding, ac- strike efforts of its employees was one of the principal
crediting employee service, and implementation of the considerations underlying this policy. He further credibly
fringe benefit and leave provisions of the collective-bar- testified, in effect, that other nondiscriminatory adminis-
gaining agreement during the period of any strike, which trative considerations dealing essentially with the integri-
might transpire. Included in the document was the fol- ty of employee claims of entitlement and verification of
lowing: illness were the other motivating factors.
Smith further credibly testified that after the strike
Accident and Sick (A & S) Benefit Plant commenced on January 8, no employee whose A & S
po :cmec n o- abenefits had been terminated came forward to disavow
Upon commencement of a strike, all A & S benefits the strike or to affirmatively establiah their entitlement to
will be discontinued, except in those cases involvig A & S benefits. Moreover, after the strike commenced,
accident or injury. A & S benefits will be continued the Union did not undertake to inform Smith that any
to those employes who are disabled due to industri- employee whose A & S benefits had been terminated was
al injury until medically released by their doctors or not actually supporting the strike As a general policy,
until expiration of such benefits in accordance with sponnt os not e medic verification of ill-
the Plan's benefit schedule, whichever occurs first. Respondent does not require medical verification of ill- , rs . ness for absences of less than I week. Medical substantia-
tion is "frequently" required in connection with absences
Decision will be reserved regarding the payment of of longer duration.
A & S benefits upon termination of the strike for
employees who become disabled during the strike 2. The alleged proscribed conduct
and whose disability continues beyond the termina- Leon Dove had been an employee of Respondent for
tion of the strike. approximately 25 years when the strike commenced on
Decision will also be reserved regarding the re- January 8. He was employed in the bargaining unit rep-
sumption of A & S benefits which were discontin- resented by the Union at the El Paso facility. On Decem-
ued at the beginning of the strike for those employ- ber 10, 1979, Dove had gone on sick leave for gall blad-
ees who are still disabled after the termination of der surgery. The surgery was performed by Dr. Joseph
the strike. Motes, Jr., and Dove subsequently consulted with Dr.
Motes concerning his condition. This consultation took
Under no circumstances will A & S benefits be pay- place during the first week of January, and Dr. Motes
able if they would not have been payable in the ab- issued Dove a written release to return to work effective
sence of a strike. January 7. Dr. Motes issued the release pursuant to
In a related sense the benefits plan handbook pro- Dove's request but advised Dove that due to the nature
vides in pertinent part that: of Dove's work he should use his discretion in determin-
ing actually when to return to duty. Dove visited his
Should you [employee] become ill or have an ac- personal physican, Dr. William M. Tubbs, on January 4
cident while not at work, you are eligible for Acci- and 11. On January 4, Dr. Tubbs told Dove, in sub-
dent and Sick Benefits unless you are on a personal stance, that, in light of the nature of the operation which
business or military leave of absence or on layoff he had undergone, he advised against an early return to
status at the time of such illness or accident. Should duty. He suggested that Dove wait "at least another
you receive full pay for vacation periods, you will week" until returning to work. Dove considered the
not receive benefits under this Plan if you become matter and, in the course of Dove's office visit on Janu-
sick while on vacation. If you cannot return to ary 11, Dr. Tubbs gave Dove an oral release to return to
work on the date you anticipated, however, the work on January 14. Pursuant to Dove's subsequent re-
Plan will apply against further absence. quest, Dr. Tubbs provided a written release, dated Janu-
ary 29, stating, "The above patient can return back to
Under the plan there is no vesting or accrual of A & S regular duty work January 14, 1980."' On February 4,
benefits, and benefits are paid to employees qualified to Dr. Motes responded to a written inquiry dispatched to
receive them out of current operating expenses. In the him by Respondent. In his response, Dr. Motes certified
face of a strike, it is the policy of Respondent to pay A
& S benefits to employees who were absent due to an in- ' The foregoing is based on documentary evidence of record, stipula-
dustrial illness or injury at the time the strike commences tion of the parties, and the credited testimony of Frank Smith.
for as long as their absence and their incapacity to work The above findings with repectthe offie pvidsid Dby Dove tbathe respective physicans. as well as the releases provided Dove, are based
due to industrial illness or injury continue. A & S bene- on the credited testimony of Leon Dove and documentary evidence of
fits to employees absent due to illness or injury arising record. Dove's testimony in these respects was confused and imprecise as
to chronology and thus, to an extent, the findings are based on inference
and probability distilled from the totality of the record
, 3
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1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that his records disclosed that Dove was released to mellitus (out of control). He recovered sufficiently
resume work on or about Monday, January 7. to permit him to return to work February 18, 1980.
Dove was a member of the Union and was on dues
checkoff when the strike commenced. As a union Dominguez credibly testified that, if he had been
member, he considered himself obliged to support an au- healthy on January 8, he would not have crossed the
thorized strike whether or not he agreed with its goals. picket line to resume work. On February 18, Dominguez
Prior to strike he had voted in favor of its authorization. began picketing activities in support of the strike and
Dove understood that as a union member he was subject honored the picket line for the entire term of the strike.
to fine and expulsion if he had undertaken any effort to In this period of time, Respondent received no informa-
hinder the progress of the strike. Dove did not partici- tion to the effect that Dominguez was actively support-
pate in the picketing activity that accompanied the strike ing the strike, and no information to the contrary was
but after January 14 he periodically performed telephone conveyed.
duties at the Union's headquarters during the course of Conclusions
the strike. The union hall was located approximately 1-
1/2 miles from Respondent's El Paso facility. When The threshold issue in the instant case is whether on
Dove was on duty at the union headquarters, his ingress the basis of the Board's Decision in E. L. Wiegand Divi-
and egress was through the main entrance. During the sion, Emerson Electric Co., 246 NLRB 1143 (1979), enfd.
course of an earlier strike by the bargaining unit mem- as modified, 650 F.2d 463 (3d Cir. 1981), an employer
bers called by the Union against Respondent, Dove and violates Section 8(a)(l) and (3) of the Act by terminating
all other bargaining unit members honored the picket at the outset and for the duration of a protected econom-
line throughout the entire course of the strike. ic strike sick and accident benefits to all unit employees
Dove's A & S benefits were terminated on January 8, except those whose disability derives from industrial
the initial day of the strike. After being notified of the injury, in circumstances wherein the reason advanced by
termination of his A & S benefits, Dove made no effort the employer for terminating the benefits relate solely to
to lodge a protest with Respondent. He did not under- (1) the unwillingness of the employer to assist in financ-
take to contact Frank Smith, or any representative of ing a strike against itself and (2) nondiscriminatory ad-
Respondent, during the strike to indicate his availability ministrative considerations.
6 I find that under Emerson
for work. Electric Respondent must be held here to have violated
Antonio Dominguez was at all relevant times a member Section 8(a)(1) and (3) of the Act, and that the discrimi-
of the Union employed in the bargaining unit at the El natory effect fows from the inherently destructive
Paso plant of Respondent. Dominguez entered Respond- nature of Respondent's prestrike policy announcement
ens employ in 1946 and has been continuously em- which was implemented and triggered by the commence-ent's employ in 1946 and has been continuously em-
ployed at all times thereafter. On December 3, 1979, Do- ment of the strike. N.L.R.B. v. Ere Resstororp. et a.,
minguez commenced a vacation which was scheduled to 376 U.S. 221 (1963); N.L.R.B. v. Great Dane Trailers,minguez commenced a vacation which was scheduled tocontinue through January 4 Pursuant to further arrange- Inc., 388 U.S. 26 (1967). Absent here is any overtone orcontinue through January 4. Pursuant to further arrange- i rundercurrent of a generic antiunion hostility or purposements he had scheduled another period of vacation to otherwise to defeat the Union
is . e .„ ., . .. .„„ .. .., otherwise to defeat the Union.begin January 7, allocable to his 1980 vacation entitle-i re in
ment. During the course of his initial vacation, and prior In the Emerson case, th e B o a rd h e l d th a t the r e sp o n d -
to the commencement of the strike on January 8, Domin- e n t t h e r e
n volated Section 8(a)() and (3) of the Act by
guez became ill and was hospitalized for diabetes. He terminating sck and accident benefits to employees who
made this known to Frank Smith who considered his re- were physically unab to work on and after the initial
.~.,~. ..» .^ .i~ .*~ jday of the stnrike, because other employees actively em-quest that his vacation status be terminated and that he d o t , b
ployed at the respondent's facility had gone out onbe put on sick leave. Smith told Dominguez that he was ployed at the respondents facility had gone out on
unable to grant his request because hiscurrent ye r's strike. In rea hing this conclusion, the Board, inter alia,unable to grant his request because his current years rruled Southwestern Electric Power Company, 216
._(1979) vacation ha a d .n Hwvr ........ overruled Southwestern Electric Power Company, 216(1979) vacation had already commenced. However,(1979., .vacation hDom areztad cmenued. Howevn , ti NLRB 522 (1975), and adopted the rationale that the em-Smith informed Dominguez that the rules governing this
question would permit Dominguez to postpone his vaca- I The foregoing findings are based on a composite of the credited testi-
tion planned to commence on January 7, 1980, and enter mony of Frank Smith and Antonio Dominguez, as well as documentary
sick leave status on that date. This arrangement was for- evidence of record. While there are inferences in the record that the
mulated. Because of the I-day waiting period require- medical statement of Dr. Marshall was requested by Dominguez in antici-
ment attaching to A & S benefits, Dominguez was in sick pation of the filing of charges alleging unfair labor practices deriving
from Respondent's termination of Dominguez' A & S benefits, the au-
leave status without pay on January 7 but was granted A thenticity of the statement was not challenged, and the accuracy of the
& S benefits for January 8, the last working day prior to representations contained therein was not convincingly placed in doubt.
the commencement of the strike. Dominguez' A & S In enforcing the Board's Order in Emerson, and endorsing the princi-
pal component of the substantive pronouncements therein, the Third Cir-benefits terminated on January 9 and were not therein- cuit Court of Appeals modified the remedial provisions of the order
after reinstated. On June 14, Dr. Harold J. H. Marshall, which had directed benefits of disabled employees be terminated at the
at the request of Dominguez, provided Dominguez with time the employee acquired information to the effect that the relevant in-
a written statement setting forth that: dividuals had affirmatively acted to show public support of the strike.
This remedial issue is not present here for I do not interpret the General
Counsel's claims interposed on behalf of Dove and Dominguez to encom-
Antonio 0. Dominguez was ill and unable to work pass periods after they received their medical releases from their attend-
from January 7, 1980. His diagnosis was diabetes ing physicians.
.
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ti n t o t ff t t t i s acti el s rt-
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ent's e ploy in l
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mingue ); . . ,mngue , „ ,„, /'- i .i *
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ents he had scheduled another period of vacation to erc rre t f a ri ti i stilit r r
.et . e , a ,ceue „ nte .,io .f .. ato "„„ .. other ise to defeat the nion.
, o r t de th Union.
l ti , i I
t h e E m er son c as e, e ar d h el d th at t
h e r es po n d -
t r ,
t t r i l ti )(l) ( ) t t
i l i . i i ick i t fit t l y s
i i r - w er e p
h y sic a l l y u na le to w o r k on
a nd af t er t he initial
.,.,. . » ^ i- * ji-»i- day t s o e atvl em-
' . , , o .1. 1-1 i- * .i- . iployed s
t the Boad ine alia,
unabe tograt hi reuestbecase is crret r' c li ,l ' ve ldSuhstnEecicP rCmay21
(1979) vacation had already co enced. o ever, overruled Southwestern Electric Po er o pany, 216
Smith , informed Dominguez that the 1 rules governingthis 522 (1975), and a te the rati ale t at t e e -i i l i \
it
i l , , t r r it t i i , as ll as c e tar
Si St t O W
1- i i e-
t tt i t fit , o mnguez as in sick pation of the filing of charges alleging unfair labor practices derivingment ttachng t A & benfitsDominuez as insick t' i guez' fit , -
l St t Wit t t t ti it f t st t t as t ll , a t e acc rac f t e
Co ence e t St I "
benefis termnated ur ad renot t rei - pal component of the substantive pronouncements therein, the Third Cir-benefits ter inated on January 9 and were not therein-.cui t l
i i t fit i l l t r i t t t
ti ffect -
St t

ss i ft r t r i t ir i l releases fr t eir atte -
,
i l
n
^ ^ uhetr lcrcPwrCmay
i g thi
mentatachin , i gu ment attaching to S efits, Do i guez w si fr it , t -

s o .,
i
trmnaig sic k
O
t
ployd atall ime theeaftr. O Dee be 3, 979,Do- ment of the strike. N.L.R.B. v. Er e Res st r Cor , et a ., ll ti t ft . r 3, 1979, o- ", ^ ^ n ,'
TEXACO, INC. 1221
ployees in question had a Section 7 right to refrain from "simply tightened the degree of proof required before an
declaring their position on the strike while they were employer terminated A & S benefits during a strike to
medically excused. As a consequence, the Board de- employees who would otherwise be eligible under the em-
clared: player's accident and sick benefit plan," (Emphasis sup-
plied.)
. . . an employer may no longer require its disabled In sum, Respondent contends that A & S benefits were
employees to disavow strike action during their sick terminated at the outset of the strike on the theory that
leave in order to receive disability benefits. To an employer has no legal obligation or reason to finance
allow the termination of such benefits to certain em- a strike against itself by paying benefits to strikers, and
ployees as a result solely of the strike activity of for other nondiscriminatory administrative reasons.
others is to penalize the employees who have not Moreover, Respondent avers that, after their A & S
acted in support of the strike. benefits were terminated, neither Dove nor Dominguez
complied with the requirements of promulgated benefits
plan either by establishing their eligibility by providing
medical certification routinely required by the Company,
However, while disabled employees need not affir- or by disavowing the strike. Further, Respondent sub-
matively disavow the strike action, neither can they mits that it had sufficient basis on the initial day of the
participate in the strike without running the risk of strike to infer strike support on the part of employees
forfeiting benefits prospectively . . . . For all prac- whose benefits were terminated, evolving not only from
tical purposes, an employee, disabled or sound, who historical background provided by the 100-percent effec-
affirmatively demonstrates his support of the strike tiveness of the 1969 strike at the El Paso facility, and
by picketing or otherwise showing public support from mangagement awareness of the existence of the
for the strike, has enmeshed himself in the ongoing Union's disciplinary power over its members; but also
strike activity to such an extent as to terminate his from evidence developed during the course of the hear-
right to continue disability benefits [footnote cita- ing serving to verify the accuracy of its prestrike judg-
tions deleted]. ment concerning the degree of support which unit em-
* , *, * ployees would accord the strike.
Respondent further distinguished the applicability of
Accordingly, we now hold that for an employer Emerson Electric to the case at bar by contending that
to be justified in terminating any disability benefits the evidence adduced herein establishes that Dove had
to employees who are unable to work at the start of received medical clearance to return to work 2 days
a strike it must show that it has acquired informa- prior to the beginning of the strike.
tion which indicates that the employee whose bene- In addition to contending Emerson Electric is distin-
fits are to be terminated has affirmatively acted to guishable from the instant proceeding, Respondent ad-
show public support for the strike. vances argument which, in essential aspects, reduces to a
contention that the Emerson decision is improvident in
The General Counsel contends that the instant matter imposing a virtually per se rule proscribing any denial of
falls squarely within the dictates of the Board's Emerson accident and sick benefits during a strike; and is a deci-
Electric decision and is in no significant respect distin- sion which, (I) invites sophistry and gamesmanship on
guishable. 7 On the other hand, Respondent contends that the part of employees and union officials; (2) improperly
the accident and sick benefits plan was one freely negoti- equates the Section 7 right of an employee to refrain
ated into the collective-bargaining agreement and that, from declaring his or her position on a strike while medi-
by assenting to the inclusion of the plan in the negotiated cally excused, with the bestowal of the right of an em-
agreement, the Union waived what the Board in Emerson ployee to keep his or her position with respect to the
Electric deemed a Section 7 right. Respondent contends strike a secret in order to preserve their entitlement to A
his waiver resulted from the Union agreeing to limit A & & S benefits; (3) significantly derrogates an employer's
S benefits to employees whose absence is caused solely right not to finance a strike against itself; (4) forces em-
by illness or injury, and by further agreeing to permit the ployers to violate the Act by discriminating against
Company to shift the burdening of proving entitlement classes of employees based on their visible support of a
to the employee claiming A & S benefits. Respondent as- strike; and (5) leaves employers no effective means of en-
serts that this contractual reservation of rights requiring forcing their rights without violating the Act.
employees covered by the plan to come forward and A decision in this matter must proceed from the prem-
present satisfactory evidence of entitlement to benefits is ise that an administrative law judge of the Board is a
nowhere precluded by the Emerson Electric decision, for bound by case precedent of the Board until and unless
the Board in Emerson did not undertake to deny to em- that precedent is supplanted by a decision of the United
ployers the right to freely negotiate contractual provi- States Supreme Court. Lenz Company, 153 NLRB 1399,
sions regarding the payment of A & S benefits, but 1401 (1965). Further, no party to this proceeding chal-
rather fashioned decisional vehicle by which the Board lenges the legal efficacy of the proposition that an em-
ployer is not required to finance a strike against itself by
7 The parties concede the equivalency for legal purposes of the present
accident and sick benefits, on the one hand, and the disability benefits ' As found below, this is not a viable contention based on the totality
which were pertinent in the Emerson case. of the evidence of record.

..
However , while disabled mployees need notmedical rti i ti ti l r ir t ,
r, il disabled e ployees need not affir- or by disavowing the strike. Further, Respondent sub-
ti l i t tri ti , it r t it t t it ffi i t i t i i i l t
rti i t i t tri it t r i t i f
f cti l ... ll fi l l
i l , l l t
ffir ti l tr t i rt f t tri ti t i l ili
i ti i i li r
f t t i , i lf i i ' i l r
tri ti it t t t t t r i t i i l i t
ri t t ti i bilit fit [f t t it i i ri t r y i tri
l ] t r i t r f rt i it -
l
i l , l s n ic i
ti ti bili fi
t h e i d r i t li t t v had
r ec i ed m ed ic al c l r t o r
t u rn t o w o r k 2 days
i t o t h e i i f t tri .
8
I
n i ic ti
t f ti l i l fr t i t t r i , s t ad-
li r
v an c es nti l
ti s n i i
1
'

)
)
).
l er is t i
7
, I l

l
e f t
ti l t f i

1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paying wages or other similar expenses. General Electric Emerson Electric, disseminated a declaration that A & S
Company, 80 NLRB 510 (1948). Finally, it is an estab- benefits would not be paid to employees who would oth-
lished principle of law that an employer may not with- erwise receive them, and did so at a time when a strike
hold payment of already earned or accrued benefits con- at its facility was imminent. This declaration came before
tingent upon the cessation by employees of a legitimate there was any showing of how widespread the strike
ecomonic strike. E.g., N.L.R.B. v. Great Dane Trailers, would be and before Respondent was aware that any of
Inc., 388 U.S. 26 (1967). the employees who were unable to work ratified or ac-
The threshold finding is here made that, by reason of tively supported the strike. The General Counsel points
their past service, both Dove and Dominguez had quali- to this conduct as evidence of an improper, antiunion
fled to receive A & S benefits under the terms of the col- motive warranting a finding of a violation of Section
lective-bargaining agreement and the promulgated bene- 8(a)(3) of the Act. No other direct evidence of unlawful
fits plan, for a period which extended beyond the com- motivation is present in the instant record.
mencement day of the strike. Moreover, I find that the A I interpret the Emerson Electric decision as declaring
& S benefits pertinent herein were accrued benefits con- that the termination of accrued sick leave benefits to em-
stituting deferred compensation for work already done. ployees prior to any showing that they affirmatively sup-
See, E. L. Wiegand Division, Emerson Electric Co. v. ported the strike, evinces an intent on the part of the em-
N.L.R.B., 650 F.2d 463, 468 (3d Cir. 1981), enfg. as ployer to discourage employees from exercising their
modified 146 NLRB 1143 (1979). A finding is further Section 7 rights by coercing them to refrain from sup-
made that, contrary to Respondent, neither the language porting the economic strike called by their duly selected
in the collective-bargaining agreement nor the provisions bargaining representative at the premises of their em-
of the employee benefits plan contains a waiver cogniza- ployer; and retaliates in a discriminatory manner against
ble by the Board as a defeasance of the rights of the em- them for their presumed but unverified support of the
ployees herein "to refrain from declaring their position strike. The fact that the employer may also have had a
on this strike while they are medically excused" as a valid business reason for terminating the accrued benefits
condition of qualifying for payment of accured accident is of no consequence under this doctrine. In the face of
and sickness benefits. While pointing to the negotiated this controlling precedents, I am constrained to here find
collective-bargaining agreement and the corollary bene- a violation of Section 8(a)() and (3) of the Act. Cf. Gen-
fits plan as the source of its reserved right in the face of eral Electric Company, supra. The fact that in Emerson
an impending strike to terminate A & S benefits, and to Electric the union therein affirmatively protested to the
require employees affected by the termination to come employer withholding the benefits that the individuals
forward and present satisfactory evidence of entitlement who were unable to work were not participants in any
to benefits, Respondent is, in ultimate effect, interposing strike, is not, in my opinion, sufficient basis for distin-
a waiver argument. Perkins Machine Company, 141wa ve r a r ue e rk s achine Company, 141 guishing the instant case wherein the record contains no
NLRB 98, 102 (1963), is instructive: explicit evidence of a challenge by the Union. The Board
... an effective waiver will be found to have been majority in Emerson specifically held:
given when it appears in "clear and unmistakeable" employer may not rely on
language, either contained in the contract itself or s speculative grounds to justify the termination
expressed at the bargaining table before the contract
was signed. On the other hand, a purported waiver of existing disbability benefits to employees which,was signed. On the other hand, a purported waiver
will not be lightly inferred in the absence of "clearasfound here bythe Administrative Law Judge,
and unequivocal" language. Even when the partieshad accured to them as a result of past work per-
consciously explore the matter during the negotia- ormed.
tions and the contract fails to touch upon it, some- The absence of any showing by the employees on sick
thing more is required before the union will be held leave that they affirmatively supported the strike was the
to have bargained away its rights, namely, a con- touchstone of the Board's rationale, and the protest inter-
scious relinquishment by the union, clearly intended posed by the union representatives in Emerson was
and expressed. merely tertiary.
Neither the collective-bargaining agreement nor the Having concluded that disposition of this case is con-
benefits plan itself contains "clear and unmistakeable" trolled by the Emerson Electric decision of the Board, it
language from which a waiver may be inferred. Re- becomes decisionally irrelevant to assess the merits of the
spondent came forward with no bargaining history sup- contentions raised by Respondent challenging the valid-
portive of its waiver claim. The H. K. Porter Co. princi- ity either of the legal rationale supporting the majority
pie is not here involved.9 I find no waiver. See Tide opinion in Emerson Electric or the derrogating effect of
Water Associated Oil Company, 85 NLRB 1096, 1098 that ruling upon the rights of employers to be free from
(1949), cf. United Aircraft Corporation v. N.L.R.B., 440 the legal imperative of financing a strikes against them-
F.2d 85, 96 (2d Cir. 1971). selves.
Against this background and upon the record devel- In sum, consistent with the dictates of Emerson Elec-
oped in this proceeding, I find that Respondent, in close tric, I conclude and find that Respondent interfered with,
factual analogy to operative circumstances present in restrained, and coerced employees in the exercise of their
Section 7 right to refrain from declaring their position on
H. K. Porter Co. v. N.L.R.B., 397 U.S. 99 (1970). the strike at the El Paso facility which commenced on
).
. .
).
i
s n ic i i l ri
fi i f ti i f
ti ti i f i l
. isio , s n ic .
r i i i
i ). ti r i i
r t, i i ll i l l t
i i i i nt ti i i
f i l i i r i t
i ri i rt t
i i l ri i i t l l
i l i i i t fit
i li i t , t i i t f f
fi i tr ll , i
ll ti r ini g r t t r ll r - a i l ti f ection 8(a)(l) and (3) of the ct. f. en-
t r ic , . s n
fi ic i f ti l
r ir l ff t t t r i ti t l it l i t fit t t t i i i l
t ti f t r i i l l
t fit , t i , i lti t ff t, i i i i i ff t i i
w a iv e r ar um t . P r in ine , i i
, , i ti l
i
in E m er s on cifi ally l :
l i t l
, t lf . we i e ht n t may not relya
i i tracts spcuative bends to eu ployeermich,
was igne. Onthe rha rp e iverofiver„ ,- .* ,.,.*- ,,
i l l
a s f o u n d he r e b y t h e i i tr ti Judge,
i l . t rti
h ad ac c u r ed to t he m as a r es u l t o f past w o r k pe-
i l ormed.
ti t tr t f il t t it, - l i
t i r is r ir f r t i ill l l t t t ffi ti l t i
i l ' l
sci s r li i t t i , l rl i t t t ti i
,^ ^and expressed. ~~~~~~~merely tertiary.
l t i i i f t r , it

. l l ti l ti t j rit
"
), .

ti
. .

.

i
.

i i l e e a ti )
t

t
r s
TEXACO, INC. 1223
January 8, by terminating the sick leave benefits of em- ORDER 10
ployees Dove and Dominguez while they were medical-
ly excused from duty, thereby violating Section 8(a)(l) The Respondent, Texaco, Inc., El Paso, Texas, its offi-
of the Act. I further conclude and find that this identical cers, agents, successors, and assigns, shall
conduct of Respondent also violated Section 8(a)(3) of . Cease and desist from:
the Act. (a) Upon the commencement of a lawful economic
Upon the foregoing findings of fact, and upon the strike, and while the strike is in progress, discontinuing
entire record in this proceeding, I make the following: accident and sick benefits for employees during the
normal term of their entitlement, but excluding all peri-
CONCLUSIONS OF LAW ods subsequent to the active participation of any employ-
ee or employees in strike activity or public demonstra-
1. Texaco, Inc., is an employer engaged in commerce tion of support of the strike.
within the meaning of Section 2(2), (6), and (7) of the (b) In any like or related manner interfering with, re-
, _Act,. ,straining, or coercing employees in the exercixe of rights
2. Oil, Chemical and Atomic Workers International guaranteed in Section 7 of the Act.
Union, AFL-CIO, Local No. 4-612, AFL-CIO, is a 2. Take the following affirmative action deemed neces-
labor organization within the meaning of Section 2(5) of sary to effectuate the policies of the Act:
the Act. ~~~~~~~~the Act. ~(a) Make Antonio Dominguez whole by paying sick
3. By terminating the sick leave benefits of Leon Dove a n aient eneit ue hm ung te period January
and accident benefits due him during the period Januaryon January 8 and Antonio Dominguez on January 9 at a to January 13, 1980, with interest.
time when they were medically execused and prior to (b) Make Leon Dove whole by paying sick and acci-
any showing on their part they affirmatively supported en bene e h n hean 8
the strike which commenced at Respondent's El Paso fa- January 13, 1980, with interest.
cility on January 8, 1980, Respondent interfered with, re- (c) Preserve and, upon rest
strained, and coerced employees in the exercise of rights (c) Preserve and, upon request, make available tohe
guaranteed under Section 7 of the Act and unlawfully Board or its agents, all records necessary to analyze the
discriminated against them in violation of Section 8(a)(ll amount of accident and sick benefits due in the effectu-discri inated against the in violation of Section 8(a)(1) ation of their remedial order.
and Section 8(a)(3) of the Act. a tl o n o f th e ir remedial order.
(d) Post at Respondent's place of business in El Paso,
THE REMEDY Texas, copies of the attached notice marked "Appen-
dix."" Copies of said notice, on forms provided by the
Having found that Respondent engaged in certain Regional Director for Region 28, after being duly signed
unfair labor practices, I shall recommend that it cease by a representative of Respondent, shall be posted by
and desist therefrom and take certain affirmative action Respondent immediately upon receipt thereof, and be
designed to effectuate the policies of the Act. maintained by it for 60 consecutive days thereafter, in
Having found that Respondent terminated the sick and conspicuous places, including all places where notices to
accident benefits of employees Antonio Dominguez and employees are customarily posted. Reasonable steps shall
Leon Dove in violation of Section 8(a)(l) and (3) of the be taken by Respondent to insure that said notices are
Act, I shall recommend that Respondent be ordered to not altered, defaced, or covered by any other material.
make Dominguez and Dove whole by paying to each of (e) Notify the Regional Director for Region 28, in
them the sick and accident benefits due them from the writing, within 20 days from the date of this Order, what
date the sick and accident benefits were initially termi- steps the Respondent has taken to comply herewith.
nated to the date on which they were cleared by compe-
tent medical authority to return to duty. Consistent with o In the event no exceptions are filed as provided by Sec 102.46 of
this directive, Respondent is ordered to pay sick and ac- the Rules and Regulations of the National Labor Relations Board, the
cident benefits to Leon Dove from January 8 through findings, conclusions, and recommended Order herein shall, as provided
January 13, 1980, and to pay sick and accident benefits in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
to Antonio Dominguez fr January 10 through Febru- become its findings, conclusions, and Order, and all objections theretoto Antonio Dominguez from January 10 through Febru- shall be deemed waived for all purposes.shall be deemed waived for all purposes.
ary 13, 1980. t In the event that this Order is enforced by a Judgment of a United
Upon the foregoing findings of fact, conclusions of States Court of Appeals, the words in the notice reading "Posted by
law, and the entire record, and pursuant to Section 10(c) Order of the National Labor Relations Board" shall read "Posted Pursu-
of the Act, I hereby issue the following recommended: ant to a Judgment of the United States Court of Appeals Enforcing an
of the Act, I hereby issue t e folwing r nded Order of the National Labor Relations Board."
ployees e a i ez il t r i l- T , T . El P T i -
ly excused from duty, thereby violating Section 8(a)(l) Respondent, Texaco, Inc., El Paso, Texas, its ohli-
ti l c er s e B^"' 8 or , i , l:
t ti C eas e i t
t l i
t
s t r ik e a n d w h i le t h e s ik e is in
i it f r l ri t

ihi t i f ection 2(2), (6), and (7) of the (b) In any like or related manner interfering with, re-
Act ,_, . . , ,straining, or coercing e ployees in the e erci e f ri ts
i i l l ti
i , l . , I , i . t f ll i ffir ti ti c s-
l i ti o n it i ean i ti ( ) a r y t o t t t li i f t t:
the Act. ~~~~~~~~~(a) i i
. t r i ti t i l fit f an ac e n tb s imn drn h e i
, o -i * . * r» * i r ~ ~~~a a i t fi i i ri r r t i i r t t r , , it i t t.
ti e hen they ere edically e ec se a ri r t ib i
any sho ing on t ir rt t y ffir ti l s rt d b e ef e d urnw h e pi Jand 8, to
t t i i t t' l f d nu , , it t.
ilit on January 8, 1980, s t i t rf r it , r - (c) r , n r e s t ,
strained, and coerced l y s i t exercise f ri ts (BadPorterve , r st, k il l t the
t ti l f l B o ar d o r l t s
a sary l
i t t i i l ti f ti ( )(l)
a m o u n t o f i t i fi
ti f t t.
a t io n o f t h e ir remedial order.
.""
t i i l i i l
f i l ti , I ll nt ti t, ll
i f i f ti t l i f,
i l cuti f r,
i t i i , ll
i t fi l i t ril l l
ti )(l t i i i
ll t ri l
i l i t f ( ) tif t i l ir t r f i , i
i i t fi
t t i i t fit r i iti ll t i t t t t t l r it .
t i l t orit t . i t , „ . „- ,tent medical authority to return to duty. Consistent wih ' In the event no exceptions are filed as provided by Sec. 102.46 of
Si t l l ti t ti l l ti , t
.
t t i i z fr r
bec ome ts gs c onc lusions, and e , and l
to1Antonio1 Dominguez fromloanuaryn10 through Febru-
t i t e t t t t is r r is e f rce by a Judg ent of a nited
Concl
rd e r o f th e N tio al o r
»f ,1 c1, . iereby , .ollowing ., , ,, . , .
of the Act, I hereby l owin ecomme : or
a nd ^
a nu
Bor r s rv
10
, "" ~ad
l