Texaco, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 1982

260 N.L.R.B. 1192 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Texaco, Inc. and Richard E. Turner, Kenneth N.
Meyer, and Don W. Gibson. Cases 19-CA-
12349, 19-CA-12390, and 19-CA-12409
March 24, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 24, 1981, Administrative Law Judge
William L. Schmidt issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and counsel for the
General Counsel filed a memorandum in support of
the Administrative Law Judge's Decision.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Texaco, Inc.,
Anacortes, Washington, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
' In adopting the Administrative l1aw Judge's Decision, and particular-
ly his remedy, Member Jenkins does so for the reasons set forth in his
dissent in E. L. Wiegand Division, Emerson Electric Co., 246 NL RB 1143
(1979), enfd. as modified 650 F. 2d 463 (3d Cir 191 ).
Members Fanning and Zimmerman find it unnecessary to reach the re-
medial issue set forth in Emerson Electric Co.. supra, since the result in
this case is the same under either the majority or dissenting approach
' In his Decision, the Administrative Law Judge lists all of Respond-
ent's various benefit plans, while in his remedy the Administrative L aw
Judge recommends that Respondent make Gibson, Meyer, and Turner
whole for "all losses" which they suffered. We note in this regard that at
the heanng and in his brief counsel for the General Counsel only present-
ed evidence with respect to losses attributable to Respondent's termina-
tion of accident and sickness, medical, and pension benefits to the above-
mentioned discriminatees We shall therefore leave until the compliance
stage the determination of what additional losses of benefits, if any, exist
for which the discriminatees are entitled to compensation.
3 With respect to the backpay involved, Member Jenkins would com-
pute the interest in accordance with the formula set forth in his partial
dissent in Olympic Medical Corporatrion, 250 NLRB 146 (1980)
260 NLRB No. 165
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing before an administrative law judge,
at which all parties were provided with the oppor-
tunity to present evidence and arguments, the Na-
tional Labor Relations Board concluded that we
violated the rights of employees by treating three
employees, who had been excused from work on
medical leaves of absence before the beginning of
the strike in January 1980, as striking employees
for the entire duration of that strike where the evi-
dence was insufficient to show that they actively
participated in the strike or publicly supported the
strike. To remedy this matter, the National Labor
Relations Board has ordered us to post this notice
and to comply with its terms.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILI NOT consider any employee to be
engaged in a strike where that employee has
been excused from work on a medical leave of
absence before the beginning of a strike unless
we learn that the employee is actively partici-
pating in the strike, publicly supporting the
strike, or fails to return to work at the conclu-
sion of the medical leave if that occurs during
the strike.
WI WII.. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act.
WE WILL make Don W. Gibson, Kenneth
N. Meyer, and Richard E. Turner whole, with
interest, for the losses they suffered as a conse-
quence of our treating them as striking em-
ployees for the entire duration of the strike
which began on January 8, 1980.
TEXACO, INC.
1192
TEXACO, INC.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge:
This matter was heard by me in Seattle, Washington, on
October 30, 1980, based on a consolidated complaint of
the General Counsel and an answer of Texaco, Inc., the
Respondent herein.' On October 15, 1980, the consoli-
dated complaint was amended. The complaint, as amend-
ed, and the Respondent's answer place in issue the ques-
tion of whether or not the Respondent discriminated
against the Charging Parties by terminating their sickness
and accident benefits and by refusing to make life and
health insurance contributions on their behalf for the du-
ration of a strike by the Union which represents them. 2
After the hearing the General Counsel and the Re-
spondent filed briefs which have been carefully consid-
ered.
Upon the entire record (as corrected in accord with
the General Counsel's unopposed motion related to tran-
script errors which I hereby grant) and my observations
of the witnesses who testified in this matter, I make the
following:
FINDINCS OI FACT
1. JURISIIC ION
The Respondent, a Delaware corporation, is engaged
in business at Anacortes, Washington, refining petroleum
products. The Respondent's Anacortes refinery (known
as the Puget Sound refinery) is the only facility of the
Respondent involved in this proceeding. During the cal-
endar year preceding the issuance of the complaint, the
Respondent sold and shipped products valued in excess
of $50,000 directly to customers located outside the State
of Washington or to customers located within the State
of Washington which were, in return, directly engaged
in interstate commerce. In the same period, the Respond-
ent purchased goods and services for use at its facilities
in the State of Washington valued in excess of $50,000
directly from suppliers outside the State of Washington
or from suppliers within the State of Washington which,
in turn, had received said goods directly from locations
outside the State of Washington. On the basis of the fore-
going and the entire record, I find that the Respondent is
an employer within the meaning of Section 2(2) of the
Act, engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. I further find that it would
effectuate the purposes of the Act to assert jurisdiction
herein.
11. THE LABOR ORGANIZATION INVOI.VFI)
The Oil, Chemical and Atomic Workers International
Union, Local 1-591, AFL-CIO (the Union), is a labor
I The consolidated complaint was issued on June 3, 1980(). based on the
charges listed in the caption. The charges were filed by Turner. Gibson.
and Meyer (the Charging Parties) on April 24 and May 9 and 19,. 1980
respectively.
' At the hearing, the General Counsel withdrew the allegation pertain-
ing to life insurance but asserted that Turner was further injured hy the
denial of pension credits which would have otherwise accrued absent the
Respondnet's actions at the outset of the strike
organization within the meaning of Section 2(5) of the
Act. 3
111. THE AIl IEGED UNFAIR I.ABOR PRACTICES
A. Background
As noted above, the issue as framed by the pleadings is
whether or not the Respondent violated Section 8(a)(1)
and (3) of the Act as to the Charging Parties when it dis-
continued payment of accident and sickness (herein
called A & S) benefits to the three workers and refused
to make required contributions, or appropriate credits,
under other fringe benefit plans, at the time their collec-
tive-bargaining representative commenced a strike among
unit employees in support of its economic demands. All
this occurred as a result of what, in effect, amounted to
the Respondent's reclarification of the status of the
Charging Parties from that of disabled employees to that
of strikers at the outset of the strike.
The Puget Sound refinery was opened in 1958. Shortly
thereafter, the Union was selected as the collective-bar-
gaining representative of certain of the Respondent's em-
ployees. 4 From that approximate period until the present,
the Respondent and the Union have negotiated a series
of successive collective-bargaining agreements applicable
to the represented group. With the exception of the
agreements concluded in 1969 and 1980, the parties
thereto have successfully concluded their negotiations
without the occurrence of strike action.
B. The Current Collective-Bargaining Agreement and
Benefit Plans
The current collective-bargaining agreement was ex-
ecuted on January 24, 1979, and is effective for a term
lasting from January 8, 1979, to January 8, 1981. A fea-
ture of that agreement is that the Union was permitted to
reopen the the agreement in a period prior to its first an-
niversary for the purpose of negotiating new terms on
wages, health and welfare benefits, and vacation pay. '
According to Walter von Wald, an International repre-
sentative who services Local 1-591, a vote authorizing
the Union to conduct a strike was concluded in late 1978
shortly prior to the successful conclusion of the current
agreement and the Union considered the strike authoriza-
tion applicable to the 1979-80 reopener negotiations. Ac-
cordingly, no membership strike vote was conducted
prior to the strike material herein.
The conmplaint and the answer pertain only to the International
Union The evidence adduced in this case discloses that I cl I l 51 is
the certified and recognized representative and that the relevant collec-
tive-hargaining agreement is between the Respondent and I ocal 1 591
As to the issue, in this aforementioned collectle-bargailning agreement. I
find that I.ocal 1 591, and not the International Union, is the pertinent
labor organization
' According ito the collective-bargaining agreement. the unit encom-
passes all employees. excluding salaried clerical employees, plant protec-
tion employees. laboratory employees, technical employees, and profes-
sional and supervrisory employees At the time of the strike, there "ere
approximately 235 unit employees and 100 nonunit personnel employed at
the Puget Sound refinery
The terms of the reopening feature were never precisely explained
but its existence is not disputed
1193
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The current agreement incorporates by reference cer-
tain of the Respondent's fringe benefit plans at article
XIII, section F. Special provision is made which limits
the scope of arbitration permitted over the benefit plans.
The collective agreement also contains a grievance-arbi-
tration provision and a no-strike, no-lockout provision.
In this latter regard, the no-strike provision prohibits the
Union from striking over any matter which may be sub-
ject to the grievance procedure but permits strikes over
matters which are not subject to the grievance procedure
if a notice of intent to strike and an opportunity to bar-
gain is provided within a specified period in advance of
such action. If, however, the Union exercises its right to
strike in such an instance during the term of the agree-
ment, a further provision provides, "[A]ll obligations im-
posed upon the parties to this Labor Agreement will be
suspended with the commencement of such strike and
shall continue to be suspended unless and until it's mutu-
ally agreeable to both parties to reimpose said obliga-
tions." There is nothing by way of a pleading in the
nature of an affirmative defense alleging that the strike
here was conducted pursuant to the aforementioned ex-
ception to the no-strike provision or that the Respondent
was contractually privileged to suspend the payments,
contributions, and credits which form the basis of the
General Counsel's complaint. Likewise, no such claim
was made at the hearing and the briefs of the parties are
silent with respect to the applicability of the contract
suspension provision to the issues here. 6
In addition to the A & S plan, article XIII, section F,
of the collective-bargaining agreement incorporates the
following benefit plans into the agreement: (1) a perma-
nent total disability plan; (2) a group pension and group
life insurance plan; and (3) a severance pay allowance
plan. The evidence also shows that an agreement exists
between the Respondent and the Union whereby unit
employees are provided with a hospital-surgical-major
medical benefits plan which, in the instance of the Puget
Sound employees, is administered by the Skagit County
Medical Bureau although no reference is made to this
plan in the collective-bargaining agreement. The exist-
ence of the additional fringe benefits caused the General
Counsel to plead and argue in a somewhat meandering
fashion. Thus, by the amendment to the complaint, the
General Counsel sought to charge the Respondent with
additional liability for failing to pay the Charging Par-
ties' health and life insurance premiums in the strike
period. Thereafter, at the hearing, the General Counsel
deleted the life insurance allegation but, for the first time,
asserted that the Respondent was required to credit
Turner for the strike period under the existing retirement
plan. In addition, the amendment to the complaint al-
leges that Gibson, upon retirement in September 1980,
was paid the A & S benefits withheld during the strike
6 In my judgment, a claim that the Respondent was contractually privi-
leged to suspend the payments and credits here would be an affirmative
defense which it would be required to plead and prove. This is especially
true where, as here, the evidence of a reopener, while uncontradicted as
to its existence, is not sufficiently specific to permit the conclusion that
the Union struck after the agreement was reopened pursuant to the ex-
ception to the no-strike clause or some other side agreement. lhe suspen-
sion provision, however, is-by its terms -applicable only in the event a
strinke occurs under the no-strike exception in the agreement
and at the hearing the General Counsel asserted that
only interest on those funds for the period withheld was
being sought. However, in his brief, the General Counsel
urges that the question of whether Gibson was fully paid
for the lost A & S benefits upon his retirement is not
clear for some unexplained reason and should be left to
the compliance stage of the proceedings. Suffice it to
say, however, that the real vice complained of in cases
of this nature is the treatment of employees excused from
work for disability reasons as strikers and, to the extent
that that results in losses to the disabled employees in
violation of Section 8(a)(3), those losses are appropriately
a matter of remedy under a make-whole order-the usual
remedy in 8(a)(3) cases.
Under the accident and sickness benefit plan (which
appears to be a corporatewide disability benefit plan) em-
ployees with 10 or more years of service (as is the case
here) are protected against the economic consequence of
a disabling sickness or accident by the payment of bene-
fits equal to full pay for the first 13 weeks and benefits
equal to half pay for 39 weeks. Payments under the plan
are made from the Company's general assets and no em-
ployee contribution is required. The plan contains provi-
sions for disqualifying employees for nonoccupational
disabilities if the illness or accident occurs while the em-
ployee is on: (1) a leave of absence for military service;
(2) a leave of absence for personal business; (3) layoff; (4)
vacation, unless the period of disability continues beyond
the time scheduled for the employee to return to work;
or (5) directly or indirectly from the employee's own
misconduct. In the event of an occupational injury, bene-
fits paid under workmen's compensation laws are deduct-
ible from those paid under the A & S plan. In addition,
the Respondent has the right to appoint a physician to
determine the probable future frequency or duration of
compensable absences and whether or not the employee
is taking appropriate steps to expedite his recovery.
According to a stipulation at the hearing, employees
on less than full pay for more than 15 days in any calen-
dar month do not receive a pension credit for that
month. Only Turner would have qualified for a pension
credit during the strike here as Gibson and Meyer were
already receiving half pay under the A & S plan by the
time the strike commenced.
Under the Respondent's medical plan, the Respondent
pays the greater portion of the premium and the remain-
der is contributed by the employee. As noted, the plan is
administered by the Skagit County Medical Bureau.
During the strike, the Union and the Respondent
reached an agreement with the Bureau whereby the
strikers' premiums would be collected from the existing
reserve which had theretofore built up as a result of a
favorable claims experience. As explained by Jesse H.
Long, the Respondent's supervisor of employee relations,
the reserve actually belongs to the Respondent and the
employees in pro rata shares equal to their contribution.
Nonetheless, during the strike the reserve was adequate
to cover the strikers' premiums, which the Respondent
declined to pay because of strike action. However, it ap-
pears that as the Respondent treated the Charging Par-
ties as strikers in all respects, portions may have been
1194
TEXACO, INC.
drawn from the reserve to cover their premiums during
the period of the strike.
C. The 1980 Strike
The final two meetings between the Union's and the
Respondent's negotiators concerning an effort to reach
an agreement over matters subject to the reopener oc-
curred on January 7 and 8, 1980. At the January 7 meet-
ing, the Union announced that in the event no agreement
was reached by 4 p.m. on January 8 it intended to com-
mence an economic strike to support its demands.
At the bargaining session held prior to the commence-
ment of the strike on January 8, the Respondent made an
additional offer which was rejected by the Union. The
Respondent's bargaining notes show that it then advised
the Union that it intended to operate the plant in the
event of a strike and that the benefit plans would be "ad-
ministered" in the following fashion:
Management stated that in the event of a strike
the Labor Agreement at the very minimum would
be suspended and possibly terminated. The Admin-
istration of Benefit Plans was then outlined to the
committee as follows:
1. Pension
The Group Pension Plan provides that an employee
will be credited with one month of Benefit Service
for any calendar month that the employee is nor
absent from work with less than full pay for 15 days
or more. Furthermore, the Plan provides that the
employe's pension contributions, if any, will be sus-
pended during any calendar month that the em-
ploye does not earn Benefit Service.
Therefore, if an employee is on strike for 15 days or
more during any calendar month,
(a) The employe will not be credited with any
Benefit Service for that month, and
(b) The employe's pension contributions, if any, will
not be collected that month; they will be suspended.
2. Savings Plan
Similar to the Group Pension Plan, the Employee
Savings Plan provides that if an employee is absent
from work with less than full pay for 15 days or
more in any calendar month, the employee will not
be permitted to make contributions to the Plan for
that month, nor will the Company contribute to the
Plan in the employe's behalf that month.
3. Hospital and Surgical Benefits Plan (See Note) (In-
cluding Dependent's Insurance)
In order to continue medical coverage under a
Company-sponsored Medical Plan, striking employ-
ees will be required to pay the total premium (em-
ploye's contribution plus the contribution normally
made by the Company in their behalf) for the dura-
tion of the strike. However, for the months in
which the strike begins and terminates, the Compa-
ny will contribute a pro rata share of its normal
monthly contribution based on the period worked
by employees during the first and last months of the
strike. Employees will be required to remit to the
Company their total premium, less the Company's
pro rata contribution during the first and last
months of the strike, at the beginning of each
month of the strike in order to continue medical
coverage for themselves and their dependents.
4. Life Insurance (See Note)
Non-Contributory: Non-contributory life insurance
coverage will remain in force for the duration of
the strike.
Contributory: Contributory plan members will be re-
quired to pay in advance their normal monthly con-
tribution for their contributory life insurance cover-
age for the month in which the strike begins, if such
contributions have not already been made through
normal payroll deductions, and at the beginning of
each subsequent month that the strike continues in
order to keep the insurance in force.
5. Accidental Death and Dismemberment (AD&D)
Insurance Plan (See Note)
Plan participants will be required to pay in advance
their normal monthly contribution for their AD&D
coverage for the month in which the strike begins,
if such contributions have not already been made
through normal payroll deductions, and at the be-
ginning of each subsequent month that the strike
continues in order to keep the insurance in force.
6. Accident and Sick (A&S) Benefit Plan
Upon commencement of a strike, all A&S benefits
will be discontinued, except in those cases involving
industrial accident or injury. A&S benefits will be
continued to those employees who are disabled due
to industrial injury until medically released by their
doctors or until expiration of such benefits in ac-
cordance with the Plan's benefit schedule, which-
ever occurs first.
Decision will be reserved regarding the payment of
A&S benefits upon termination of the strike for em-
ployes "who become disabled during the strike and
whose disability continues beyond the termination
of the strike.
Decision will also be reserved regarding the re-
sumption of A&S benefits which were discontinued
at the beginning of the strike for those employees
who are still disabled after the termination of the
strike.
Under no circumstances will A&S benefits be pay-
able if they would not have been payable in the ab-
sence of a strike.
7. Vacations
Employees on vacation when a strike commences
may continue on vacation status for the balance of
the week in which the strike occurs, subject to the
vacation rules in effect at that time.
1195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No other vacations will be granted during a strike,
and vacations scheduled to commence during the
strike period will be rescheduled following termina-
tion of the strike.
8. Jury Duty Absence
No payment will be made for absences for jury
duty during a strike.
9. Death in Family Absence
No payment will be made for absence due to death
in the family during a strike.
10. National Guard Encampments
No payment will be made for military training oc-
curring during a strike.
NOTE: If an employe elects to discontinue making
his or her normal premium contributions to keep in-
surance coverage in force, such insurance coverage
will be terminated, and the employe will be re-
quired to furnish evidence of insurability to the in-
surer upon termination of the strike in order to rein-
state such coverage. In the case of the Accidental
Death & Dismemberment Insurance Plan, the em-
ploye will not be eligible to re-enter the Plan until
the April I or October 1 first following the end of
the strike.
Employe may call Payroll to find out the amounts
they will be required to pay for medical insurance,
contributory Life Insurance and AD&D Insurance.
The Union had been advised the previous day that
Gibson, Meyer, and Turner were the only three individ-
uals who were receiving accident and sickness benefit
payments at that time. According to von Wald, he was
not certain if the Union specifically told the Respondent
that Gibson, Meyer, and Turner were not strike partici-
pants but that it was aware that that was the Union's po-
sition. Long testified that at no time did the Union indi-
cate in any fashion that the strike would not be "total."
However, Long conceded that Gibson, Meyer, and
Turner's names were never mentioned in this regard and
that he had no recollection as to what was said about the
Union's position regarding the strike or nonstrike status
of the three disabled employees. The Respondent's min-
utes of the bargaining session held toward the end of the
strike on March 29 disclose that the negotiators discussed
the right of the Union and the individuals to pursue the
payment of the A & S benefits. This record of the dis-
cussion at that time merits the inference that at least
prior thereto the Union had taken the position that the A
& S benefits were payable to Gibson, Meyer, and Turner
during the strike.
On January 8, at 4 p.m., the Union commenced its
strike against the Respondent at the Puget Sound plant.
Managerial, supervisory, and unrepresented nonunit em-
ployees, as well as a few Texaco employees from other
locations, performed unit work during the course of the
strike in order to maintain production. Although two or
three unit employees terminated their employment with
Texaco during the strike period, no unit employee (in-
cluding any of the Charging Parties) offered to return to
work during the course of the strike. The strike contin-
ued through April 13, 1980. It was terminated by an
agreement on the initial economic issues and a separate
strike settlement agreement. In its answer, the Respond-
ent asserted that the strike settlement precluded this
action but in its brief the Respondent moved to delete
that defense. In view of the evidence adduced here, the
Respondent's motion is granted.7
D. The Discriminatees
For a period of time prior to the strike, Gibson,
Meyer, and Turner had been absent from work on medi-
cal leaves and were drawing the A & S benefits. In Gib-
son's instance, the evidence shows that he had been
absent from work since approximately September 1979,
with a condition diagnosed as scoliosis. At the time of
the strike, Gibson was processing a claim that his condi-
tion was related to an occupational injury but it appears
that this claim (which the Respondent disputed) was re-
solved against him. Gibson's condition persisted through-
out the strike and thereafter. Eventually, in September
1980, Gibson's disability compelled his retirement. Meyer
testified that his disability resulted from being struck by
an automobile on July 14, 1979. As a consequence,
Meyer suffered a compound fracture of a leg and an
arm, and was confined to a wheelchair for approximately
5 months. Although Meyer could walk fairly well by the
time the strike commenced, he was not released to return
to work by his physician until May 5, 1980. Turner was
hospitalized for a week commencing December 1, 1979.
Turner testified that "first I thought I had an ulcer
which in turn turned into a heart attack and both." Fol-
lowing his hospitalization, Turner convalesced at home
until he was released to return to work by his physician
during the week immediately prior to the end of the
strike.
There is no evidence that the Respondent directly
communicated with any of the three affected employees
at any time immediately prior to the strike or during the
strike. The three employees learned of the discontinu-
ance of the A &S benefits when they received checks in
January 1980, which paid them for benefits only through
January 8. There is no evidence that any of the three
employees sought to protest directly to the Respondent
about the discontinuance of benefits.
Gibson, Meyer, and Turner reside in Mt. Vernon,
Washington, which is approximately 20 miles from Ana-
cortes where the refinery and the Union's office are lo-
cated. They have all been employed at the Puget Sound
refinery almost from the time that it became operational.
Likewise, the three men had all been members of the
Union for nearly as long as it had been the bargaining
representative but none had ever held any union leader-
ship position. All three participated in the 1969 strike by
engaging in picketing duties or performing tasks at the
' Iowever, in view of the General Counsel's asserted inability to
locate any cases pertaining to the right of the Charging Parties to main-
taim this action notwithstanding the terms of the strike settlement agree-
ment, it is suggested for his olwn edification that he read the lead case
which he cited in support oif his argument on the merits from start to)
finish.
1196
TEXACO, INC.
union office in support of the strike activity. None of the
three employees engaged in any similar strike activity
during the 1980 strike. However, there is evidence that,
during the course of the 1980 strike, they paid social
visits to the Union's office to visit fellow workers they
had been unable to see for a long period but these visits
were limited to only one to two occasions where they
occurred at all. In addition, there is evidence that Gibson
attended the last union meeting before the end of the
strike where the strike settlement was ratified and that
Meyer attended one or two union meetings during the
strike where contract offers were considered. However,
numerous other meetings were held during the strike
which were not attended by the Charging Parties.
During the course of the strike, the Union paid the
striking employees at a $20-per-week benefit. According
to von Wald, the membership voted to extend this bene-
fit to the disabled employees as their A & S benefits had
been terminated. The evidence shows that none of the
disabled employees initiated a request for the benefits. In
Gibson's instance, the availability of the $20-per-week
benefit was not known by him until late in the strike and,
as a consequence, he received payments from the Union
for only the last 2 weeks of the strike. It was not until
late January that Turner learned of the availability of the
Union's benefit to the disabled employees.
E. Additional Findings and Conclusions
The foregoing establishes that the Respondent, on Jan-
uary 8, 1980, automatically altered the status of Gibson,
Meyer, and Turner from that of employees excused from
work for medical reasons to that of striking employees
notwithstanding that it had no evidence that those em-
ployees were actually engaged in a strike against it, pub-
licly supporting such a strike, or were medically released
for return to work. By doing so, the Respondent pre-
cluded those employees from receiving benefits normally
available to employees on medical leaves of absence. In
its brief, the Respondent asserts that on the basis of the
long-term union membership of the Charging Parties,
their acceptance of the so-called strike benefits, their past
actions in support of the 1969 strike, their limited visits
to the Union's offices during the most recent strike and,
in general, their proclivity to be loyal to the Union. It
should be entitled to presume that the Charging Parties
were striking the same as their able-bodied brothers who
left their work stations when the Union called. There-
fore, the Respondent's argument goes, notwithstanding
that the three employees had theretofore been absent on
excused disability leaves, it was fully justified in treating
them as strikers by discontinuing the payment of A & S
benefits and the other contributions and credits which it
would have afforded them in the absence of the strike.
Such a presumption made under materially identical cir-
cumstances was specifically precluded by the Board in
E. L. Wiegand Division, Emerson Electric Co., 246 NLRB
1143 (1979). The Respondent recognizes this fact but
argues that I should not "blindly adhere" to Emerson.
Nevertheless, the Respondent makes no significant at-
tempt to factually distinguish this case from Emerson. In-
stead, the Respondent articulates numerous arguments
concerning the continued good health of Emerson in
view of the 1980 general election results and otherwise
contends that it is an ill-advised part of the national labor
policy. The Respondent urges that the Board return to
the doctrine expressed in Southwestern Electric Power
Company, 216 NLRB 522 (1975), in resolving cases of
this nature. The Respondent obviously believes that this
action is essential so that the principle that no employer
should be compelled to finance a strike against itself may
be restored to its rightful position of primacy among the
principles governing conduct during strikes. Whether
one chooses to label it "blind adherence" or otherwise,
the fact remains that I am not at liberty to do other than
follow precedent established by the Board until either
the Board or the Supreme Court changes it. Lenz Com-
pany, 153 NLRB 1399 (1965); Iowa Beef Packers Inc., 144
NLRB 615 (1963); Insurance Agents International Union,
AFL-CIO (Prudential Insurance Company), 119 NLRB
768 (1957). As I have concluded that the Respondent has
failed to demonstrate that the Charging Parties engaged
in conduct evidencing that they participated in strike ac-
tivity or gave public support for the strike, I find the Re-
spondent was not justified in presuming that Gibson,
Meyer, and Turner were strikers and treating them as
such from the very outset of the strike. By doing so, the
Respondent violated Section 8(a)(1) and (3) of the Act.
Emerson Electric, supra.
Notwithstanding this disposition, some of the Respond-
ent's arguments merit some observations. One argument
which the Respondent advances here and which is in-
variably advanced against the wisdom of the Board's
current policy in cases of this nature is that the Emerson
standard fails to take into account the fact that it would
be unlawful for an employer to interrogate disabled em-
ployees about their participation in strike activities and,
hence, employers are deprived of one of the most cogent
means of obtaining the evidence that is necessary in
order to discontinue the payment of such benefits. The
genesis of this argument is found in the Board's own
Southwestern decision wherein it was asserted that "clear-
ly" it would not be lawful to interrogate disabled em-
ployees as to their strike sympathies. Cited in support of
that assertion is Farmers' Cooperative Compress, 169
NLRB 290 (1968). Although it is true that in Farmers'
the employer's interrogation of employees as to whether
they intend to participate in a threatened strike was
found to be unlawful, that is only half of the story. The
other half of the Farmers' story is that the purpose of the
interrogation was to ascertain those employees who
might be amenable to a bribe for the purpose of remain-
ing at work in order to break the union. In my judgment,
factual distinction between Farmers' and the situation
where an employer makes a good-faith effort to ascertain
what employees on excused leaves are doing is similar to
the difference between night and day. Hence, Farmers'
lends absolutely no support to the proposition that an
employer is generally prohibited from making a noncoer-
cive inquiry of a disabled employee as to whether the
employee is doing anything inconsistent with a legitimate
leave of absence. This is so regardless of whether the in-
quiry is directed toward ascertaining the truth of rumors
that the employee was engaged in digging a sewage
1197
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ditch in front of his house, scaling the Empire State
building, or walking a striking union's picket line shout-
ing "scab" at nonstriking employees. To conclude other-
wise would be inexplicably inconsistent with the princi-
ples settled upon over 25 years ago in Blue Flash Ex-
press, Inc., 109 NLRB 591 (1954).
Likewise, the Respondent's argument that the Board
lacks authority to regulate the economic weapons availa-
ble to labor and management in strike situations also
lacks merit. This argument is grounded upon dicta of the
Supreme Court in a number of cases cited by Respond-
ent. As with all dicta, it should be considered carefully
in the context in which it appears. One need go no fur-
ther than the same Court's opinion and holding in Mastro
Plastics Corp v. N.L.R.B., 350 U.S. 270 (1956), to recog-
nize that the Court had no intention of creating a legal
no-man's land whenever a strike occurs as the Respond-
ent's argument implies.
Moreover, the Respondent faults the Emerson doctrine
by asserting that it compels the type of discrimination
prohibited by the Supreme Court in N.L.R.B. v. Great
Dane Trailers, Inc., 385 U.S. 26 (1967), in that Emerson
requires payments to disabled employees who do not
publicly support a strike but not to other disabled em-
ployees who do show public support of a strike. The fal-
lacy of the point the Respondent seeks to make in this
argument is quickly apparent when it is recognized that
similar discrimination would exist if the Board returned
to the Southwestern doctrine as the Respondent urges.
The only difference could be that the shoe would be on
the other foot-the employer would be required to pay
benefits to all disabled employees who publicly dis-
avowed the strike and would be permitted to withhold
benefits from those who did not. More troublesome in
this case from the perspective of the Great Dane case is
the Respondent's decision here to pay A & S benefits to
those disabled on the job while refusing to pay A & S
benefits to those disabled off the job. The logical justifi-
cation for requiring (as Respondent urges) one group-
those disabled off the job-to disavow the strike activity
while permitting the other group-those disabled on the
job-to be in an equal position by doing nothing is not
readily apparent to me. However, having already con-
cluded that the Respondent violated the Act on other
grounds, I find it unnecessary to further consider this un-
explained dichotomy.
Finally, the Respondent asserts that I committed preju-
dicial error by sustaining the General Counsel's objection
to its questioning of Gibson and Turner as to whether
they would have participated in the strike had they not
been disabled. Entirely apart from the fact that implicit
in the question itself is a concession that they did not
participate in the strike, the question otherwise seeks to
elicit nothing of relevance under current case law. Ac-
cordingly, the rulings are reaffirmed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondent found to
exist in section III, above, occurring in connection with
the Respondent's operations described in section 1,
above, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having concluded that the Respondent has violated
the Act in the manner specified above, it is recommend-
ed that the Respondent be required to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the purposes of the Act.
Affirmatively, it is recommended that the Respondent
be required to make Gibson, Meyer, and Turner whole
for all losses they suffered as a result of the Respondent's
presumption that they were striking employees for any
portion of the period between January 8, 1980, through
April 14, 1980, when their respective physicians had not
released them to return to work with the Respondent. In
Turner's instance, the record herein clearly shows that
he was specifically released by his doctor during the
final week of the strike. As the evidence shows that the
Respondent did not require a written release before per-
mitting Turner to return to work, the Respondent's obli-
gation to make him whole shall terminate when Turner
was first advised of his release by his physician whether
made orally or in writing. s To the extent that it is deter-
mined that the health insurance reserve was depleted by
the Respondent's failure to pay the Charging Parties'
premiums during the strike period, the Respondent shall
be required to reimburse the reserve only to the extent of
its pro rata share of the premium. The computation of
backpay herein shall be in the manner provided by the
Board in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest thereon as provided by the Board in
Olympic Medical Corporation, 250 NLRB 146 (1980), and
Florida Steel Corporation, 231 NLRB 651 (1977). And
see, generally, Isis Plumbing & Heating Co., 138 NLRB
716 (1962). To the extent that it may be determined in
the compliance stage of this proceeding that the Re-
spondent must reimburse any trust fund in order to fully
make the Charging Parties whole for their losses, interest
on such amounts shall be determined in accordance with
the Board's discussion of that question in Pullman Build-
ing Company, 251 NLRB 1048 (1980), and the cases cited
therein. It is also recommended that the Respondent be
ordered to post the attached notice to employees at its
Puget Sound refinery and to thereafter notify the Re-
gional Director for Region 19 of the steps that it has
taken to comply with the recommended Order entered
hereinafter.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act, engaged in commerce or in a
business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
s In this connection, the General Counsel's contention that the control-
ling date as to Turner should be the date he received the release in the
mail is rejected. The controlling date is intended to be the date of Turn-
er's visit to his physician wherein the release actually occurred plus any
period of additional convalescence the physician may have specified at
that time for Turner before actually returning to work.
1198
TEXACO, INC.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By automatically altering the employee status of
Don W. Gibson, Kenneth N. Meyer, and Richard E.
Turner on January 8, 1980, from that of employees ex-
cused from work for medical reasons to that of employ-
ees engaged in a strike against it, the Respondent has
violated Section 8(a)(l) and (3) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Pursuant to Section 10(c) of the Act and upon the
foregoing findings of fact and conclusions of law and the
entire record herein, I hereby issue the following recom-
mended:
ORDER 9
The Respondent, Texaco, Inc., Anacortes, Washing-
ton, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Automatically altering the status of any employee
excused from work on a medical leave of absence to the
status of a striking employee upon the commencement of
any strike, and continuing said change of status in effect
thereafter, in the absence of evidence that such employee
actively participated in strike activity, gave public sup-
port therefor, or failed to return to work upon being
9 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived fior all purposes
medically released for that purpose in the course of any
such strike.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Make Don W. Gibson, Kenneth N. Meyer, and
Richard E. Turner whole in the manner set forth above
in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board, or its agents, all records necessary to analyze the
amounts due under the remedial order herein.
(c) Post at its Puget Sound refinery in Anacortes,
Washington, copies of the attached notice marked "Ap-
pendix."'" Copies of said notice, on forms provided by
the Regional Director for Region 19, after being duly
signed by its representative, shall be posted by Respond-
ent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by it to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
° In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgmenll of the United Slates Court of Appeals Enforcing an
Order lof the National Labor Relations Board "
1199