Amoco Oil Co.

National Labor Relations Board - Board Decisions

Oct 30, 1987

286 N.L.R.B. 770 (N.L.R.B. 1987)

770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Amoco Oil Company and Robert L. Fritts . Case 27-
CA-6659
30 October 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 17 April 1981 Administrative Law Judge
Joan Wieder issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The pertinent facts are as follows: Pursuant to a
contract clause , the Oil, Chemical and Atomic
Workers Union, Local No. 2-124 (OCAW or the
Union), which represented hourly paid employees
at the Respondent's Casper, Wyoming refinery, in-
formed the Respondent on 26 October 1979 of its
intent to open negotiations. The parties failed to
reach agreement on the reopened items and, on 7
January 1980,1 the Union notified the Company
that a lawful economic strike would begin at the
refinery at 3:30 p. m. on 8 January. The Charging
Party, a long-term employee of the Respondent,
entered the hospital on 7 January, and the Re-
spondent started to pay his sickness and disability
benefits as of that date. After receiving the Union's
strike notice, the manager of the refinery sent a
letter to all employees represented by OCAW an-
nouncing that no work would be made available at
the outset of the strike to employees in the bargain-
ing unit who might otherwise want to work.2 The
letter further informed these OCAW-represented
employees that they would not be eligible for bene-
fits for any sickness, disability, or injury having its
onset during the strike. That same day, the Re-
spondent's manager sent letters to all individuals
who were receiving sickness or disability payments
at the time the strike announcement was received,
i All dates hereafter are 1980 unless otherwise designated
2 Amoco has for many years maintained a policy under which it con-
tinues to operate a facility during a strike with management, supervisory,
and other unrepresented personnel, and does not permit unit employees
to work, irrespective of whether those employees belong to the Union or
wish to support the strike The Respondent presented evidence that the
policy was adopted after 1959 when its prior policy of permitting em-
ployees to work during strikes allegedly resulted in violence and ostra-
cism of employees who crossed picket lines at two other refineries not
involved here This policy is not alleged to be unlawful and we express
no opinion on the lawfulness of this lockout policy or its application to
the Casper refinery in 1980
informing them of the status of various benefit pro-
grams for the duration of the period when no work
opportunities would be available for unit employ-
ees. 3
The issue here involves the Respondent's suspen-
sion of sickness and disability benefits to the
Charging Party from the onset of the strike on 8
January until 1 April when the OCAW-represented
employees returned to work. The complaint alleges
that such suspension of benefits violated Section
8(a)(3) and (1) of the Act. The judge concluded
that this case was controlled by Emerson Electric4
and that the Respondent's actions were unlawful
under that precedent. In so concluding, the judge
rejected the Respondent's proffered business reason
for suspending benefits, that is, its stated policy of
not scheduling bargaining unit employees for work
during a strike had the effect of disqualifying the
Charging Party from receiving benefits under the
requirements of its S&D Plan.
In Texaco, 285 NLRB 241 (1987), the Board ex-
tensively reviewed the analyses of both Board and
court cases in this area and expressly overruled the
"coercive effects" theory of Emerson Electric.
Rather, the Board (285 NLRB at 245) concluded
that "the question of whether an employer violates
Section 8(a)(3) or (1) by refusing to continue bene-
fit payments to a disabled employee on commence-
ment of a strike will be resolved by application of
the Great Dane test for alleged unlawful con-
duct."'
3 According to Terrence Rindal (whom the judge erroneously referred
to as Randel), the manager of employee relations and accounting services
at the Casper refinery , in addition to contractual benefits , several other
corporatewide benefit plans are maintained by Amoco's parent company
for all employees of the parent and its subsidiaries , including Amoco The
Occupational Illness and Injury (OI&I) and nonoccupational Sickness and
Disability (S&D) Plan is one such benefit It is noncontributory and is
paid for by the employing company
4 Emerson Electric Co, 246 NLRB 1143 (1979), enfd as modified 650
F 2d 463 (3d Cir 1981), cert denied 455 U S 939 (1982).
5 As the Board noted in Texaco, supra, at 243 fn 12, citing NLRB Y.
Great Dane Trailers, 388 U S 26, 34 (1967).
The Court in Great Dane articulated the following test for alleged
unlawful motivation
First , if it can reasonably be concluded that the employer's dis-
criminatory conduct was "inherently destructive " of important
employee rights , no proof of an antiunion motivation is needed
and the Board can find an unfair labor practice even if the em-
ployer introduces evidence that the conduct was motivated by
business considerations Second, if the adverse effect of the dis-
cnmmatory conduct on employee rights is "comparatively slight,"
an antiunion motivation must be proved to sustain the charge if
the employer has come forward with evidence of legitimate and
substantial business justifications for the conduct Thus, in either
situation , once it has been proved that the employer engaged in
discriminatory conduct which could have adversely affected em-
ployee rights to some extent, the burden is upon the employer to
establish that he was motivated by legitimate objectives since
proof of motivation is most accessible to him
286 NLRB No. 80
AMOCO OIL CO.
More recently, in Amoco Oil Co., 285 NLRB 918
(1987), the Board, applying the principles articulat-
ed in Texaco to basic facts virtually indistinguish-
able from those in this case, reversed the judge's
findings that the Respondent there had violated the
Act and dismissed the complaint.
In concluding there that the Respondent had
come forward with legitimate and substantial busi-
ness justification for its suspension of benefits suffi-
cient to rebut a prima facie case made out by the
General Counsel, the Board relied on the follow-
ing.
The Respondent's S&D and OI&I Plan is de-
signed to protect wages that incapacitated employ-
ees would otherwise have earned. The employee
benefit handbook notes certain situations in which
payments are discontinued, including , inter alia,
leaves of absence, vacations, and layoffs; and pro-
vides that benefits will resume when a disabled em-
ployee is "otherwise due to return to work." The
Board concluded that these listed events illustrate
the general requirement that "work must be avail-
able in order for a disabled employee to be entitled
to continued payment of disability benefits."
(Amoco, supra, at 920.) The Board further cited un-
disputed testimony there by the director of benefits
plans and personnel policy for the Respondent and
its parent company that "this general requirement
has been applied by the Respondent consistently in
the past on a corporatewide basis to various situa-
tions including lockouts." (Ibid.)
The Board further found that the Respondent's
implementation of the plan's dual eligibility require-
ments-i.e., of being both disabled and scheduled
to work-was not discriminatory. Rather, it was
consistent "with the terms of the plan and the Re-
spondent's past practice with respect to disabled
employees for whom no work was available both
due to lockouts and for reasons other than a lock-
out." (Amoco, supra at 920.) Finally, the Board
found that there was no record evidence to support
a conclusion that the Respondent's conduct was in-
herently destructive of employee rights. (Ibid.)
As stated above, the basic facts in Amoco, supra,
are virtually indistinguishable from those in the
present case. That decision is controlling here. As
in that case, no work was available to represented
employees here pursuant to the lockout or "closed-
gate policy," which has not been alleged to be un-
lawful, regardless of employees' union membership
771
or participation in the strike.6 Accordingly, we
shall dismiss the complaint in its entirety.?
ORDER
The complaint is dismissed.
6 In this regard , we find , contrary to the judge here and consistent
with Amoco , supra, discussed above, that the policy and the Respondent's
implementation of the Plan's dual eligibility requiremen ts were not dis-
criminatory We further note in this connection that the Respondent's
prestrike letter to all OCAW-represented employees announced that no
work would be made available to bargaining unit employees during the
strike, as the judge stated in her background discussion It did not state
that no work would be scheduled for union members, as she indicated in
the section of her decision entitled "Discussion and Conclusions "
7 As in Amoco, supra at 919 fn 7, in view of our disposition of this
case, we find it unnecessary to reach any contention concerning the
effect of the Respondent 's and Union 's strike settlement agreement
Daniel C. Ferguson, Esq., for the General Counsel.
Robert M. O'Connell, Esq., of Chicago, Illinois, for the
Respondent.
Cecil R. Hedger, Esq. (Nelson & Harding), of Denver,
Colorado, for the Respondent.
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. This case
was heard in Casper, Wyoming, on December 16, 1980.1
The original charge was filed by Robert L. Fritts, an in-
dividual, on April 1, 1980, and was amended on May 5.
A complaint was issued on May 5 alleging that Amoco
Oil Company (the Company or Respondent) violated
Section 8(a)(1) of the Act by announcing the termination
of sickness and disability benefits then being paid to
medically excused employees on the commencement of a
strike by the Union, and violated Section 8(a)(3) and (1)
of the Act by, in fact, discontinuing such benefits to
Robert L. Fritts on the commencement of the strike by
the Union. Respondent admits making such announce-
ment and terminating such payments during the course
of the strike but denies that such activities were unlawful
or in any way violated the Act.
All parties were given a full opportunity to participate,
to introduce oral evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Counsel for
the General Counsel filed a timely brief on January 19,
1981. Respondent failed to file a timely brief. At the
close of hearing, a brief date of January 20, 1981, 35 days
after the close of hearing, was set and agreed to by all
parties. No motion for an extension of time for filing
briefs was submitted by any party. On January 21, 1981,
at 8:29 a.m., Respondent filed a motion for an order re-
quiring reply briefs in lieu of filing briefs in accordance
with the originally established schedule. By order dated
January 21, 1981, the motion to file reply briefs was
denied based on a finding that Respondent failed to ex-
plicte adequately a need for departing from the usually
established practice of all parties simultaneously filing
briefs. There was no showing why either the factual or
' All dates are in 1980 unless otherwise indicated
772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
legal exigencies present in this proceeding could not be
adequately presented within the time frame set at hearing
or, if any factor prevented such timely preparation of the
brief, why a timely request for an extension of time to
file briefs was not submitted . The order denying Re-
spondent 's motion is dated January 21 , 1981. On January
23, 1981, Respondent filed a reply brief to the brief of
counsel for the General Counsel despite the order deny-
ing its request. On January 27, 1981, counsel for the
General Counsel filed a motion to strike Respondent's
reply brief based on the order dated January 21, 1981,
plus the contention that the counsel for the General
Counsel advised Respondent 's counsel on January 22 of
his understanding that the motion to file a reply brief had
been denied and asserting that such brief had been filed
in complete disregard of the January 21 order.
On February 2, 1981, Respondent filed a reply to the
General Counsel's January 27 motion to strike . Respond-
ent's reply to the General Counsel 's motion is 19 pages
long, the major portion of which is addressed to the
merits of the case , and the first several pages discuss the
merits of its request to file reply briefs . The first stated
reason is that Respondent was involved in identical pro-
ceedings in other locations . How this circumstance war-
rants the filing of reply briefs is unexplained . Second, it
is argued that the administrative law judge in another
proceeding involving Respondent ordered reply briefs at
the close of hearing . Evidently this announcement of
procedural change was made on January 15 or 16, which
would have permitted telegraphic request for an exten-
sion of time or a motion ; the failure to file such is unex-
plained . Additionally, the predicates for the judge 's deci-
sion in that case are not shown to be present in the in-
stant proceeding and, if arguably such presence could be
asserted , why such a procedure announced at the close
of hearing in one proceeding should be implemented in
another after the receipt of the General Counsel's initial
brief in a separate proceeding has not been demonstrated.
The third reason given for reconsidering the denial of
the motion is that Respondent believes the General
Counsel, in brief, failed to address a number of principles
deemed critical to the proper resolution of the case. Why
these principles could not be addressed initially within
the time frame of the oirginal briefing schedule is unex-
plained . The trial in Casper, Wyoming , was subsequent
to another Amoco Oil Company proceeding in Novem-
ber, in which the administrative law judge 's decision had
been served December 31, 1980, affording Respondent
adequate time to address itself to the issues it now seeks
to raise through the device of a reply brief.
If the briefing schedule orginally took into consider-
ation the filing of reply briefs, there was no showing that
they would be filed sequentially as adoption of Respond-
ent's position would require ; nor has there been a show-
ing that such a deviation from the normal standard prac-
tice before this Board is warranted here. On the con-
trary, to permit a reply brief to be filed by Respondent
after the receipt of the original brief of the General
Counsel would require that the General Counsel be af-
forded an opportunity to similarly reply to Respondent's
position , which Respondent recognizes . This undue delay
of the proceedings has not been shown to be required by
the facts and circumstances present here . Respondent has
failed to show where the original briefing schedule,
which set the maximum allowable time for the filing of
briefs , impaired its ability to present its position on both
the law and facts of this case . The manner in which Re-
spondent presented the evidence clearly indicates that it
was fully prepared to present its position and nothing has
been shown to appear in the General Counsel 's case or
brief that could be deemed a surprise or of any other
character that would warrant implementation of the pro-
posed plan . Accordingly, the request for reconsideration
of the motion to file reply briefs is not shown to warrant
a decision different from that originally rendered on Jan-
uary 21, 1981.
Respondent admits that it did not file appropriate
pleadings in a timely manner, even though it knew-or it
could have known on January 16-that reply briefs were
permitted in another proceeding by the discretion of an-
other administrative law judge . Additionally, Respondent
fails to demonstrate why similar discretion should be ex-
ercised in this case for it has failed to explain why the
normal procedures provided for in the applicable Rules
and Regulations are inadequate in the instant proceeding.
Accordingly, on reconsideration of the matter, the deter-
mination that good cause for deviation from the applica-
ble standards has not been shown by the Respondent in
the instant proceeding , nor has it shown good cause why
it could not have filed a timely brief initially or filed a
timely request for an extension of time to the Board. To
permit the proposed sequential filing of briefs without
the showing of good cause is prejudical to the parties
who are entitled to a timely decision. Accordingly, on
reconsideration of the denial of the motion to file reply
briefs on January 21 , it is affirmed . Furthermore, the
General Counsel 's motion to strike the reply brief is
granted.
On the entire record , including especially my observa-
tion of the witnesses and their demeanor , I make the fol-
lowing
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company , a wholly owned subsidiary of the
Standard Oil Company of Indiana , has at all times mate-
rial maintained an office and place of business at Casper,
Wyoming . The Respondent is now and has at all times
material been engaged at its plant in Casper , Wyoming,
in the refining of petroleum . The Respondent, in the
course and conduct of its business , annually sells and
ships goods and materials valued in excess of $50,000 di-
rectly to points and places outside the State of Wyo-
ming . Therefore , it is admitted, and I find , that the Com-
pany is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Robert L. Fritts is a member of Oil, Chemical and
Atomic Workers Union, Local No. 2-124 (the Union),
which is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
AMOCO OIL CO 773
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The facts basically are not disputed. The dispositive
issues are matters of law. The Charging Party has
worked for Respondent more than 34 years. Approxi-
mately in July 1979, Fritts was informed that he would
need a cataract operation. He made arrangements for
such operation on November 28, which contemplated
that the operation would be performed on January 7 or
8, 1980. Fritts advised his supervisor of his need to have
the operation on January 4, 1980. The Charging Party
entered the hospital on January 7, 1980 Respondent
started to pay Fritts his sickness and disability payments
as of January 7, 1980.
Pursuant to contract provisions that contained a re-
opener clause, the parties have been renegotiating the
terms and provisions of the applicable contract pursuant
to a letter dated October 26, 1979, sent by the Union to
the Respondent stating the Union's intent to open negoti-
ations under that clause. The Company, consonant with
standard practice, made plans to explore the possibility
of successfully renegotiating the terms of the contract
without a strike, and in recognition of the possibility that
such an agreement could not be reached, prepared to
continue the operations of the refinery in the event of a
strike. On January 7, 1980, the Union notified the Com-
pany that a strike would commence at 3:30 p.m., January
8, 1980.
Subsequent to receiving the Union's strike notice, J. R.
Cherer, the manager of the refinery since 1976 and an
admitted supervisor, wrote a letter addressed to Amoco
Casper Refinery employees represented by OCAW-IU
Local 2-124. The letter informed the employees that be-
:ause the Union informed them that a strike would
occur:
It is our intention to continue the operation of
the refinery. We have established a staffing program
with our supervisory and unrepresented personnel
so that operations may continue safely, efficiently,
and without interruption.
Accordingly, no work will be made available at
the outset of the strike to employees in the bargain-
ing unit who might otherwise want to work. How-
ever, if you desire to return to work, you should
call 265-3390 and inform the person answering the
phone of your name, phone number and job, and
that you desire to resume working. Thereafter, if it
is decided to make work available to employees in
the bargaining unit, you will be notified.
The letter further informs the above-described employees
that they would not receive wages except for work pre-
viously performed, informs them as to the status of other
benefit programs, and, specifically stated as to S & D
(sickness and disability) and 01 & I benefits (occupation-
al illness and injury), "You will not be eligible for bene-
fits for any sickness, disability or injury which begins
during the period of the strike during which you would
not have worked even though not sick, disabled or in-
jured."
Also on January 7, Cherer sent letters to all individ-
uals who were receiving sickness or disability payments
at the time the strike announcement was received. This
letter similarly informs the employee that the announce-
ment of the strike had led the Company to staff the oper-
ation with supervisory and unrepresented personnel to
permit operations safely and efficiently without interrup-
tion. Therefore, these employees were informed that no
work had been made available to anyone in the bargain-
ing unit who might otherwise be willing to work: "Until
such time as the strike ends or work is made available to
employees in the bargaining unit, whichever occurs
sooner, your current sickness and disability payments are
hereby suspended in accordance with the terms of the
plan."
There is no evidence indicating that any of the hourly
employees were unrepresented by any union other than
the OCAW or that any hourly employees were repre-
sented. All employees, including supervisory and unrep-
resented personnel, if there were any unrepresented per-
sonnel, are covered by the same sickness and disability
program. The evidence is devoid of any indication that
any supervisory or nonrepresented personnel who con-
tinued operating the plant during the strike were consid-
ered to be sick or disabled and eligible for payments.
However, the testimony of Terence W. Randal, the man-
ager of employee relations and accounting services, who
is responsible for the administration of the sickness and
disability plan, specifically stated that such employees, as
long as they were working, would be eligible to receive
the payments under that benefit program.
It is undisputed that all sickness and disability pay-
ments were suspended as of 3:30 p.m., January 8, and
continued suspended until the strike terminated and the
employees who were represented by the Union returned
to work on April 1, 1980. Fritts who was not released to
return to work until April 18, 1980. He received for the
period April 1 to 18 sickness and disability benefits.
According to a booklet published by Respondent enti-
tled "Employee Benefit Plans," the nonoccupational
sickness and disability program is described on page 15
as follows:
After a year of credited service, you are eligible
for full pay for two weeks and half pay for four
weeks when not able to work because of sickness or
disability. After that, your benefits increase yearly
to a maximum, after ten years, of full pay for
twelve weeks and half pay for forty weeks-a full
year of benefits if you need them.
A schedule describing the benefits for different years
of service indicates that an individual with 10 or more
years service, such as the Charging Party, is entitled to
12 weeks of benefits at full pay and 40 weeks of benefits
at half pay.
The description of the sickness and disability plan, as
described in the Company's booklet, does not limit re-
ceipt of the benefits to having been scheduled for work.
However, Terence W. Randal testified that the Company
historically, to qualify for the plan that is paid for by the
Company soley, must be verifiably sick and scheduled to
774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work before he is eligible to receive the benefits. The re-
quirement for being scheduled to work is explained as
follows: "he hasn't lost anything, and therefore . .. he
does not receive benefits." For example, it is stated with-
out refutation that if an employee is receiving sickness
and disability benefits and then is laid off, his sickness
and disability benefits are discontinued for the duration
of the layoff. The payments will recommence when he is
scheduled to return to work. The program is adminis-
tered in this manner because the benefits were designed
to compensate employees for what they would have re-
ceived had they been scheduled to work. The only eligi-
bility mentioned in the Company's employee benefit plan
booklet is the inability of the employees to work because
of sickness or disability.
The contract is also silent as to the prerequisite men-
tioned by Randal of being scheduled to work in order to
be eligible to receive benefits. Article 8 refers to the ben-
efit plans and section 8:1 provides as follows:
This agreement shall in no way affect the status
of employees under any of the following Benefit
Plans for Employees of Standard Oil Company (In-
diana) and subsidiaries: Employees' Sickness and
Disability Benefits Plan and Occupational Illness
and Injury Plan (as modified by Section 6:6 of this
Agreement), Policy Concerning Vacations (as modi-
fied by Section 6:7 of this Agreement), Retirement
Plan, Group Life Insurance Plan, Long Term Dia-
bihty Benefits Plan, Comprehensive Medical Ex-
pense Plan, Employee Savings Plan, and Military
Leave of Absence and Job Restoration Plan.
It is agreed by the Union and the Company that
issues pertaining to such subjects as the above may
be bargained upon through the procedures set forth
above, except that neither party shall have the right
to have any such issue arbitrated. If any such issue
is not settled as a result of negotiations between the
parties, the Union shall have the right to refer such
issues to the President of the Company whose deci-
sion shall be final and binding upon both parties.
The Company will advise the Union of any changes
in any of the Plans mentioned in this section before
making an announcement of same to employees rep-
resented by the Union.
Section 13:C of the same agreement provides that "the
entire working agreement shall terminate automatically"
in the event of a strike called in accordance with the
terms of section 13:3 of the agreement. There is no alle-
gation that the strike in this case did not follow the terms
of section 13:3 of the agreement.
Cherer indicated that as early as September 1979 at a
managers ' meeting , the upcoming negotiations were dis-
cussed and they started preparing a preliminary schedule
of what they were going to do to operate the plant in
the event of a strike. The determination to operate the
plant with salaried individulas has been its longstanding
policy of many years. Therefore, their general philoso-
phy is to start early in November, when the reopener
was exercised, training the salaried employees that would
operate the facility. The training varies according to the
knowledge of the individual involved and the type of
temporary assignment that individual would receive.
Some of the training is intensive hands-on training, of
many weeks' duration, and some training is very short.
When Respondent received notification that the strike
was going to occur, it was determined that it would not
schedule any hourly employees to work and implement
the plan to have the salaried employees continue operat-
ing the facility. The basis for this decision was because
of difficulties experienced during a strike occurring in
1959 where certain incidents occurred at two facilities
referred to as the Sugar Creek and Texas City refineries.
The decision not to schedule any of the hourly employ-
ees for work was followed in strikes subsequent to 1959,
including the industrywide strikes in 1969 and 1974 as
well as the instant industrywide strike here under consid-
eration. Cherer testified that illustrative of the events
that occurred during the 1959 strike were personal obser-
vations of the treatment of an individual named Clyde
Lymance who returned to work early and subsequently
"got the freeze treatment from those people who struck
in 1959. No one would talk to him." Cherer felt that the
bad feelings of those who did not return early toward
those that did not participate for the entire duration of
the strike was obvious. He stated that in certain control
rooms at the Texas City facility they currently main-
tained separate coffepots, one for the early returnees and
one for those who did not choose to return to work.
Cherer had no personal knowledge of any violence oc-
curring during that strike. Respondent inferred that it
was because of these experiences in 1959 that it had de-
termined not to permit any hourly employees to work
and during the 1980 strike none of the bargaining unit
employees represented by the Union were returned to
work prior to the cessation of the strike.
Prior to returning to work, the Union and the Compa-
ny entered negotiations wherein the Union proposed that
the Company agree that employees who were receiving
sickness continuation payments as well as other benefits
be deemed eligible for coverage during the strike. The
Company rejected this proposal. The Union, on Febru-
ary 6, 1980, had filed a charge against the Employer al-
leging that cessation of such sickness and disability pay-
ments was a violation of Section 8(a)(1), (3), and (5) of
the National Labor Relations Act. On March 25, 1980,
the Union agreed to withdraw the charge and settle all
issues raised in negotiations. On March 26, 1980, the
Union signed a memorandum of understanding in which
they agreed that, in accordance with existing company
policy, an employee who is unable to work on the first
scheduled return to work day after a strike due to sick-
ness or accident will receive the benefits described under
the sickness and disability or the OI & I plans. The
memorandum also provided that the Union would with-
draw all unfair labor practice charges, lawsuits, and/or
grievances relating to those benefits as well as vacation
and other benefits. The Company, in turn , agreed to re-
instate immediately following the termination of the
strike all the benefits that were discontinued during the
strike. It is uncontested that both parties complied with
all the provisions of the agreement.
AMOCO OIL CO 775
Respondent placed into evidence a section of the
bylaws of the Union that subjects members to discipline
if they engage in acts that "tend to hinder the prosecu-
tion of a strike." There is no testimony that Respondent
relied on this provision in preparing the letters of Janu-
ary 7 to employees informing them of the Company's de-
cision to use only salaried employees to operate the facil-
ity and to discontinue specified benefits including sick-
ness and disability payments. It is unrefuled, however,
that Respondent did not attempt to ascertain whether
any employees in the bargaining unit or any other hourly
employees, if such individuals work at the Casper facili-
ty, who were sick or disabled at the time the strike com-
menced, did or did not support the strike. As indicated
in the evidence presented as well as the argument made
on record, Respondent contends that it does not have to
make such inquiry prior to the suspension of benefits be-
cause no hourly employees were scheduled to work
during the strike, that it had the right to not schedule
employees for work during the strike, and that such ces-
sation of scheduling abrogated the employees' entitle-
ment to sickness and disability benefits that were paid in
lieu of the payment of wages. Further, it was evident
from the evidence of record that Respondent believes
that the strike settlement agreement reached between the
Union and the Company to withdraw all charges based
on such cessation of disability payments should be bind-
ing. Also, as indicated in its opening statement, Respond-
ent does not consider that the case of Emerson Electric
Co., 246 NLRB 1143 (1979), is applicable to this pro-
ceeding because the basis for the suspension of benefits
was not the strike but the longstanding practice of Re-
spondent to lock out all hourly employees during the
strike to preclude potential difficulties.2
B. Discussion and Conclusions
The Board, in the Emerson Electric Co., case, supra,
concluded that termination of sickness and accident ben-
efits to employees who were physically unable to work
on and after the date the strike commenced because
other employees went out on strike, immediately on
commencement of the strike, was violative of the Act on
the basis of the reasons given by the then Chairman Fan-
ning's dissent in Southwestern Electric Power Co., 216
NLRB 522, 523 (1975), which states as follows:
The Respondent takes the simplistic position that
as wages "under the law" are not continued for
strikers, they are not continued for those on con-
tinuing sick pay unless the recipients disavow the
strike. In essence , my colleagues agree . This ignors
2 Respondent placed into evidence a T-shirt that is alleged to be indic-
ative of the type of hostility exhibited by the strikers that could have re-
bounded to the detriment of any employees that were working during the
strike that were members of the bargaining unit or were considered
hourly employees This evidence was not considered probative inasmuch
as the decision to terminate the sickness and disability benefits and imple-
ment its longstanding policy to not schedule any hourly employees who
worked during the pendency of the strike was implemented and an-
nounced prior to the commencement of the strike Accordingly, the T-
shirt incident that occurred during the strike could not be considered a
causative factor in the decision , nor was the incident itself so egregious as
to legitimitize the decision
Section 7 and the right of an employee to join in or
refrain from concerted activity. Granted, these em-
ployees on sick leave were entitled to no wages
once their excused absences expired and they failed
to return to work. It is a far cry for this Board to
require that they disavow legal strike action by
their Union during their sick leave in order to re-
ceive their sick pay. Not only is it contrary to the
statute, but it lacks support in Board precedent.
Cases where the Board has sanctioned the discharge
of presumed strikers in the context of strike in vio-
lation of no-strike provisions are inapplicable.
In short, these employees had a Section 7 right to
refrain from declaring their position on this strike
while they were medically excused. That they ex-
hibited some strike support after medical release,
and testified that if physically able they would have
joined the strike, is irrelevant in my view. To the
extent, however, that some evidenced strike by vis-
iting the picket line and/or picketing before medical
release , I would limit the amount of continued sick
pay to the period ending with the date of such sup-
portive action.
In overruling the inconsistent holdings of Southwestern
Electric Power Co., decision, supra, the Board stated in
the Emerson Electric Co. decision (246 NLRB at 1144),
supra, that:
Accordingly, we now hold that for an employer
to be justified in terminating any diability benefits to
employees who are unable to work at the start of a
strike it must show that it has acquired information
which indicates that the employee whose benefits
are to be terminated has affirmatively acted to show
public support for the strike.
The fact that the Company here determined to lock
out all hourly employees prior to the commencement of
the strike does not abrogate the applicability of the Em-
erson Electric case decision nor does it result in a deter-
mination that the termination of the benefits was for a
proper motive and therefore cannot be found violative of
Section 8(a)(3) of the Act. As then Board Member Fan-
ning indicated in his dissent in the Southwestern Electric
Power Co. case , the employee has the right to determine
if he was going to join his counion members in their de-
cision to withhold their services by joining in the strike.
An individual who is on sick leave prior to the com-
mencement of the strike and continued to be unable to
perform his work duties cannot be assumed to have
ceased his work in connection with a current labor dis-
pute and consequently cannot be considered a striker.3
As the Court recognized in NLRB v. Fansteel Metal-
lurgical Corp., 306 U.S. 240, 255-256 (1939):
8 Because individuals who have not announced their support for the
Union who were on sick or disability leave prior to and continuing
during the strike cannot be said to have voluntarily determined to with-
hold their services and strike , the cases dealing with the cessation or con-
tinuation of benefits to strikers are held inapplicable
776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The conduct thus protected is lawful conduct. Con-
gress also recognized the right to strike-that the
employees could lawfully cease work at their own
volition because of the failure of the employer to
meet their demands.
Therefore, it is concluded that Fritts did not cease work
as a striker but was deemed unable to work due to sick-
ness and disability and, until he was afforded an opportu-
nity to exercise his right to cease work or continue
work, a presumption on the part of the Respondent that
he exercised his right of choice or would be treated as if
he had exercised his right of choice deprives him of
those options guaranteed under Section 7 to join or re-
frain from joining others in protected activity. An indi-
vidual who is receiving sickness or disability payments
when a strike commences, by definition, is not ceasing to
withhold services as are the strikers, and therefore must
be afforded the protection of Section 7 to exercise his
option of joining or refraining from joining the strikers.
By terminating the sickness and disability payments, the
Respondent presumed such an election, based on the ac-
tions of the other employees.
The fact that in the instant case Respondent notified
all employees that they would not be scheduled for work
if they were hourly employees and the notification was
addressed to all member of the Union does not present a
situation so distinguishable from Emerson Electric as to
warrant the application of a different standard of behav-
ior warranting a different result. In the instant situation,
the motivating factor for the termination of the payments
was the strike. Work would have clearly been scheduled
for all hourly employees except for the strike. Respond-
ent, admittedly, did not ascertain whether all employees
supported the strike. Furthermore, Respondent failed to
demonstrate that the situation had such a potential for vi-
olence or that the strikers' conduct was so egregious as
to warrant abrogation of the normal protections afforded
under Section 7 of the Act. Furthermore, even if some of
the strikers' activities were shown to be egregious, that
would have been subsequent to the deprivation of the
benefits and also is deemed irrelevant in the instant situa-
tion because Fritts could not be termed to be a striker.
The Charging Party was disabled prior to the com-
mencement of the strike and such disability continued
until after the strike terminated. There was no showing
that the strikers or the Union caused Respondent any
concern that the continuation of sickness and disability
payments would have resulted in the lengthening of the
strike or caused objectionable activity. Accordingly it is
concluded that Respondent has failed to present a valid
business reason for abrogating Fritts' election under Sec-
tion 7 to join or refrain from joining the strike for valid
business reasons that outweigh the injury done to Fritts
by denying him such an election.
It is also concluded that there is a direct link between
the decision to not schedule work, not pay sickness and
disability payments to Fritts solely because of the strike
that is a protected concerted activity. Other indications
of discriminatory motive are: The letter informing em-
ployees that in response to the notice of intent to strike g p
the Company was not going to schedule any of the union mination of benefits was addressed to union members only.
members for work; that although all employees were en-
titled to sickness and disability payments , only those em-
ployees that were affiliated with the Union, whether
they were actively participating in the strike, would be
denied such payments , such as Fritts; that the sickness
and disability plan under which Fritts was receiving
compensation prior to the strike was characterized as
noncontributory and nontransferable does not alter the
manner in which entitlement is garnered because it is
provided , according to the benefit plan explanation, as a
concomitant to the completion of specified years of serv-
ice. Further, the plan does not require being scheduled
for work as a necessary condition precedent to eligibil-
ity. The imposition of such a condition precedent by Re-
spondents in this particular situation where the Company
elects, prior to any showing of necessary business pur-
pose, to preclude an individual 's entitlement based on a
strike entered into by other employees, clearly violates
employees' Section 7 rights . It is clear that the mainte-
nance and continuance of this practice makes member-
ship in the Union as an hourly employee4 the sole crite-
rion for the exclusion from work scheduling, and hence
sickness and disability payments, is an act that itself tends
to interfere with, restrain , and coerce employees who
were otherwise eligible to receive that benefit , in the ex-
ercise of their self-organizational concerted rights. See
Jim O'Donnell, Inc., 123 NLRB 1639, 1643 (1959); Mel-
ville Confections, 142 NLRB 1334, 1338 (1963), enfd. 327
F.2d 689 (7th Cir. 1964), cert. denied 377 U.S. 933
(1964). See also A. M. Steigerwald Co., 236 NLRB 1512
(1978). Also indicative of the motivation underlying Re-
spondent 's actions is the fact that in the letter sent to all
employees on January 7 mention was made of the fact
that those who wished to continued to work during the
strike should call the number stated there, in the event
the Respondent does decide to permit some employees
who did not wish to participate in the strike to return
early prior to the termination of the strike. The decision
to not schedule any union members for work evidently
was not final or clearly irrevocable.
That the Union may discipline a member if he of she
acted to hinder a strike does not, even absent a union-
security provision in the collective -bargaining agreement,
infer that the employee who joins the Union voluntarily
could not hinder the strike and therefore was inferential-
ly a supporter of the strike. The Board, in the Emerson
Electric decision, specifically overruled similar reasoning
contained in the Southwestern Electric Power Co. decision.
As Chairman Fanning noted in his dissent in the above-
quoted protion , "it is a far cry for this Board to require
that they disavow legal strike action by their union
during their sick leave in order to receive their sick
pay." For that reason, the Board in the Emerson Electric
case, supra, requires the employer to first acquire infor-
mation indicative of the employees' public support for
the strike prior to the termination of sickness and disabil-
ity benefits.
4 It should be noted that the letter informin the em loyees of the ter-
AMOCO OIL CO. 777
The Respondent introduced evidence showing that the
Union had agreed to withdraw charges arising out of the
Respondent's termination of sickness and disability bene-
fits during the strike. As Judge Ricci found in his deci-
sion in the Emerson Electric case, such a contention is
without merit for the public right supersedes the private
agreement. Furthermore, the language of the agreement
does not clearly abrogate the rights of union members or
other employees from filing charges. There is no explicit
waiver of these rights.5
Accordingly, it is found that Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discontinuing sickness
and disability benefit payments for Robert L. Fritts from
3:30 p.m. January 8 through March 28, 1980. It is further
found that Respondent violated Section 8(a)(1) of the
Act when, without prior investigation, it notified em-
ployees in advance of the strike the sickness and disabil-
ity payments as well as occupational illness and injury
payments would be suspended for the duration of the
strike, as these policies did not specifically exempt em-
ployees who were receiving these payments under the
plans at the commencement of the strike.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section
III, above, found to constitute unfair labor practices, oc-
curring in connection with its 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 burden-
ing and obstructing commerce and the free flow thereof.
5 See Emerson Electric, id., citing National Licorice Co. v. NLRB, 309
U.S. 350 (1940); Amalgamated Utility Workers v. Consolidated Edison Co.,
309 U.S. 261 (1940); Agwilines, Inc. v. NLRB, 87 F.2d 146 (5th Cir. 1936);
J. I. Case Co. v. NLRB, 321 U.S. 332 (1940); and Boire v. Teamsters, 476
F.2d 778 (5th Cir. 1973).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Oil, Chemical and Atomic Workers International
Union and its Local Union 2-124 are labor organizations
within the meaning of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(3) and (1)
of the Act by withholding payments of sickness and dis-
ability during the strike from Robert L. Fritts on com-
mencement of a lawful strike until the termination of the
strike. It has not been shown that the employee was a
participant in the strike.
4. The Respondent has violated Section 8(a)(1) of the
Act by announcing to employees to employees prior to
and during the strike that the members of the above-
named Union would not continue to get sickness and dis-
ability and occupational illness and injury benefit pay-
ments during the strike, which thereby interfered with
the employees' rights under the Act, a violation of Sec-
tion 8(a)(1) of the Act.
5. The above-described unfair labor practices affect
commerce within the meaning of Act.
THE REMEDY
Having found that the Respondent unlawfully with-
held accident and sickness benefits from Robert L. Fritts
and took other actions that are found to be unfair labor
practices, it will be recommended that the Respondent
be required to cease and desist therefrom and to take af-
firmative action designed to effectuate the policies of the
Act.
It having been found that Respondent unlawfully with-
held sickness and disability payments from Robert L.
Fritts during a strike at times when Robert L. Fritts was
not a strike participant, this employee should be reim-
bursed for benefits lost under these payment plans from
January 8, 1980, at 3:30 p.m., the date and time the strike
commenced, and when the payments were discontinuted,
through March 28, 1980, when the strike terminated.
[Recommended Order omitted from publication.]
V