287 N.L.R.B. 1168 (N.L.R.B. 1988)

Amoco Oil Co.

National Labor Relations Board - Board DecisionsJan 29, 1988

287 N.L.R.B. 1168 (N.L.R.B. 1988)

1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Amoco Oil Company and T. J. Henderson and D. D. Tholen and Robert T. Valencia and W. A. Burton and Jim B . Varnell and Donald Bernard and R . R. Pierce and Sylvia S. Abrecht and Oil, Chemical and Atomic Workers International Union , AFL-CIO, and Local No. 4-449, Party to the Contract Amoco Chemicals Corporation and Jack Feltner and Alvin J . Sansom and Morris Kautz and Donald C. Ellingson and Bryan Chatelain and Oil, Chemical and Atomic Workers International Union , AFL-CIO, and Local No. 4-449. Cases 23-CA-7949, 23-CA-7951, 23-CA-7952, 23- CA-7957, 23-CA-7971, 23-CA-7979, 23-CA- 8004, 23-CA- 8028, 23-CA-7948, 23-CA-7980, 23-CA-7984, 23-CA-7997, and 23-CA-8003 29 January 1988 DECISION AND ORDER length of service, with maximum benefits of 12 weeks at full pay and 40 weeks at half pay. The OI&I benefit plan covers employees immediately upon employment for job-related disabilities with payment of 12 weeks at full pay and 40 weeks at half pay. The Respondents' personnel policy manual contains the following pertinent S&D bene- fit plan provisions: 36.6 An employee shall be given benefits using as a basis of computation what such em- ployee would have earned at straight time for the regularly scheduled work hours which would have been worked had the employee not been absent on account of sickness or dis- ability. - 36.20 Benefits shall not be given while an employee is on vacation, layoff, or approved absence, or would not have otherwise worked. BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On 16 February 1982 Administrative Law Judge James S. Jenson issued the attached decision. The Respondents filed exceptions and a support- ing brief, and the General Counsel filed a brief in support of the judge's decision. 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 briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. Each of the Respondents has been party to col- lective-bargaining agreements with the Union for many years, the most recent agreements being ef- fective from 8 January 1979 through 7 January 1981. The 1979 to 1981 contracts contained reopen- er provisions allowing the parties to negotiate cer- tain economic items during the terms of the agree- ments. These reopener clauses permitted the Union to strike within 60 days of giving notice to reopen negotiations, but not prior to 8 January 1980. The Respondents' parent company, Standard Oil of Indiana, maintains several benefit programs pay- able to all employees, regardless of whether they are covered by a collective-bargaining agreement, such as the Sickness and Disability (S&D) and the Occupational Illness and Injury (OI&I) plans.' The S&D benefit plan covers employees after 1 year of service for nonoccupational illness or injury with the duration of benefits tied to the employees' The manual contains the following OI&I benefit plan provision: 37.15 No benefits shall be given while an employee would not have otherwise worked. The "Employee Benefits Plan" booklet that de- scribes the benefit plans for employees of Standard Oil of Indiana and its subsidiaries provides at page 18:2 You are not eligible for benefits while you are on vacation, leave of absence, suspension, or layoff. You will become eligible for these ben- efits at the time you are otherwise due to return to work. The director of benefit plans and personnel policy for the Respondents and their parent compa- ny testified without contradiction that the purpose of the S&D and OI&I benefits is to replace the wages employees would have earned had they not been disabled, and that employees may collect these benefits only if they are ill and scheduled to work. For example, he testified that benefits being paid to an employee when a layoff begins will con- tinue until the first employee with more seniority is laid off. Payment of benefits will be resumed if the employee is still disabled when the next junior em- ployee is called back to work. Respondent Oil Company paid no S&D or OI&I benefits during strikes in 1969, 1974, and 1980, and Respondent Chemicals Company likewise paid no S&D or OI&I benefits during 1969, 1979, and 1980 strikes, 2 The manual and the booklet were entered into the record as point exhibits The parties ' stipulation states the benefit plans are described in As described by the judge, both collective-bargaining agreements the booklet and that the manual relates to administration of the S&D and refer to S&D and OI&I benefit plans OI&I plans 287 NLRB No. 117 AMOCO OIL CO 1169 because they locked out OCAW-represented em- ployees.3 The record contains no evidence that any employee has ever received S&D and OI&I bene- fits unless he was both unable to work and other- wise scheduled to work.4 Pursuant to the reopener provisions, the Union gave timely notice that it desired to bargain with the Respondents over wages and benefits. No agreement was reached during bargaining sessions in November and December 1979, and January 1980.5 The Respondents were informed during these sessions that employees had authorized a strike beginning 8 January if no agreement was reached. On 7 January the Respondents advised the Union that they intended to operate during the strike and that no work would be made available to bargaining unit employees. On 8 January the Re- spondents sent letters to all bargaining unit employ- ees advising them that no work would be made available to them during the strike and that S&D and OI&I benefits would be suspended. On 9 Janu- ary the Respondents sent separate letters to OCAW represented employees disabled prior to the strike and receiving S&D or OI&I benefits, in- forming them that "Until such time as the strike ends or work is made available to employees in the bargaining unit . . . your current payments are hereby suspended in accordance with the terms of the plan ." No payments were made during the strike. The strike ended on 29 March at Respond- ent Chemicals Company and 11 May at Respond- ent Oil Company. Bryan Chatelain, an employee of Respondent Chemicals Company, had exhausted his S&D bene- fits at the time the strike commenced and was in the process of using up his vacation benefits in order to qualify for benefits under the Respond- ents' long-term disability program. His vacation benefits were suspended for the duration of the strike. 6 3 The General Counsel did not allege that this lockout policy was un- lawful The Respondent presented evidence that the "closed gate policy" was adopted corporatewide after 1959 when Respondent Oil Company's policy of allowing employees to work during strikes resulted in violence and long-lasting hostility between strikers and nonstrikers at refineries in Sugarcreek , Missouri , and Texas City, Texas We express no opinion on the lawfulness of the "closed gate policy" or its application at the Texas City Refinery and Chemical Company in 1980 4 The Respondents' director of benefit plans and personnel policy testi- fied that at Amoco Marketing in Denver, Colorado, disabled employees continued to receive S&D and O1&1 benefits during a strike because bar- gaining unit employees were scheduled to work 5 Hereafter, all dates are in 1980 unless otherwise indicated 6 The General Counsel did not allege a separate violation for termina- tion of Chatelam's vacation benefits, but rather argued that termination of his vacation benefits was merely a variant of the S&D and 0I&1 cases alleged in the complaint We accept the General Counsel's treatment of the vacation benefits termination and, therefore, disposition of the termi- nation of vacation benefits flows from our dismissal of the suspension of the disability benefits allegations On 28 March Respondent Chemicals Company and on 8 May Respondent Oil Company entered into strike settlement agreements and revisions to their labor contracts. The agreements also called for the Union to withdraw all unfair labor practice charges and lawsuits relating to benefits, including S&D and OI&I.7 Relying on Emerson Electric, supra, the judge found the Respondents violated Section 8(a)(3) and (1) of the Act by terminating disabled employees' S&D and OI&I benefits and Chatelain's vacation benefits because of the strike. We disagree with the judge's conclusions and dismiss the complaint. In Amoco Oil Co., 285 NLRB 918 (1987), involv- ing another subsidiary of the Respondents' parent company, we found the respondent had a reasona- ble and arguably correct nondiscriminatory inter- pretation of the S&D and OI&I plans that over- came the General Counsel's prima facie case. The present case involves the identical strike/lockout and S&D/OI&I plans as in the Amoco case. Also, the Respondents' argument of dual eligibility re- quirements for benefit receipt under the plans, i.e., that an employee be disabled and otherwise sched- uled to work, is the same as that we found merito- rious in Amoco. For the reasons set forth in Amoco, supra, we find the Respondents acted in bona fide reliance on a reasonable and arguably correct non- discriminatory interpretation of the S&D and OI&I plans when they terminated disabled employees' S&D and OI&I benefits on commencement of the 8 January 1980 strike and, therefore, did not violate the Act. Also, for the reasons given in Amoco, supra, we find that this conduct is not inherently destructive of employee rights. Accordingly, we shall dismiss the complaint. ORDER The complaint is dismissed. ' Relying on Emerson Electric, 246 NLRB 1143 (1979), enfd as modi- fied 650 F 2d 463 (3d Cur 1981), cert denied 455 U S 938 (1982), the judge rejected the Respondents' contention that the strike settlement agreements were binding on the individual Charging Parties In view of our disposition of the case, we find it unnecessary to reach this conten- tion Robert G. Levy II, for the General Counsel. John B. Abercrombie and Tony P Rosenstein, of Houston, Texas, and Robert M O'Connell, of Chicago, Illinois, for the Respondents DECISION JAMES S JENSON, Administrative Law Judge. These cases were tried on May 13, 1981, in Galveston, Texas. The consolidated complaint issued on October 27, 1980, pursuant to charges filed on May 13 and 22 and June 6, 10, 13, and 25, 1980, by the individuals named in the cap- 1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion . i The consolidated complaint alleges each of the Re- spondents violated Section 8(a)(3) and (1) of the Act by terminating accident and sick benefit payments to their respective employees because of a strike by the Oil, Chemical and Atomic Workers International Union, AFL-CIO, and its Local No. 4-449 (OCAW), the col- lective-bargaining representative of the striking employ- ees at each of the plants Denying that they committed unfair labor practices, the Respondents contend that the benefit payments were suspended in accordance with their agreements with OCAW in that when they locked out the employees at each plant, there was no scheduled work for the employees and they therefore failed to ful- fill one of two conditions necessary to qualify for bene- fits. All parties were afforded a full opportunity to appear, to introduce evidence, and to examine and cross- examine witnesses . Briefs were filed by both the General Counsel and the Respondents and have been carefully considered. On the entire record in the case, including the demean- or of the witnesses, and having considered the posthear- ing briefs, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent Amoco Oil Company operates a refinery in Texas City, Texas Respondent Amoco Chemicals Corporation operates a chemical plant in the same area. Both are subsidiaries of Standard Oil Company of Indi- ana; each annually sells and ships products valued in excess of $50,000 from its Texas City, Texas facility di- rectly to points and places outside Texas; and each pur- chases and receives materials and supplies valued in excess of $50,000 directly from outside Texas. It was stipulated and I find that each of the Respondents is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It was stipulated and I find that OCAW is a labor or- ganization within the meaning of Section 2(5) of the Act III ISSUE Whether the suspension of sickness and accident (S&D) and occupational injury and illness (OI&I) bene- fits during the strike violated Section 8(a)(3) and (1) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES A The Setting Each of the Respondents has been a party to a collec- tive-bargaining agreement with OCAW for many years, the most recent agreements being effective from January 8, 1979, through January 7, 1981 2 Both of the 1979-1981 i Charges in Cases 23-CA-7950 and 23-CAS041 were dismissed at the opening of the hearing on the motion of the General Counsel 2 The parties stipulated the units set forth in the respective contracts are appropriate for the purposes of collective bargaining agreements contained "contract reopener" language granting OCAW the right to strike, but not prior to Jan- uary 8, 1980, if Respondents and OCAW could not suc- cessfully negotiate certain economic items Pursuant to the "contract reopener" provisions, OCAW gave timely notices to each of the Respondents of their intent to ne- gotiate with respect to (a) a general cents-per-hour wage increase, (b) a fully uniform health care benefits package; and (c) improvements in the vacation schedule Negotia- tions with respect to these items took place in November and December 1979, and on January 2, 4, 7, and 8, 1980. During negotiations OCAW representatives informed the Respondents that the employees whom they represented had authorized strikes against both Respondents and that the strikes would commence at 4 p in on Tuesday, Janu- ary 8, 1980, if an agreement on economic benefits had not been reached by that time. At the beginning of the meeting on January 7, 1980, representatives of the Re- spondents advised OCAW representatives that both Re- spondent companies intended to continue to operate during any strike and that no work would be made avail- able during the strike to employees in the bargaining units By letters dated January 8, each of the Respond- ents sent letters to all bargaining unit employees advising that the Company would continue to operate during the strike with supervisory and unrepresented personnel and that "accordingly, no work will be made available at the outset of the strike to employees in the bargaining unit who might otherwise want to work However, if you desire to return to work, you should call [telephone number] 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." Both letters outlined the status of com- pensation and other benefits, including S&D and OI&I benefits. On January 9, 1980, separate letters were sent to the OCAW represented employees who were at that time receiving either S&D or OI&I benefit payments, ad- vising them that "Until such time as the strike ends or work is made available to employees in the bargaining unit, whichever occurs sooner, your current [S&D or OI&I] payments are hereby suspended in accordance with the terms of the Plan." Accordingly, from January 8 through May 11, 1980, in the case of Respondent Oil Company, and from January 8 through March 29, 1980, in the case of Respondent Chemical Company, the Re- spondents ceased payment of S&D benefits and OI&I benefits to employees who had received such benefits prior to January 8 Neither of the Respondents either in- vestigated or attempted to investigate whether those em- ployees receiving S&D or OI&I benefits at the com- mencement of the strike, were engaged in public support of the strike or were still sick or disabled or still ill or injured due to occupational causes at the time Respond- ents discontinued their S&D and OI&I benefits. The following OCAW represented employees were re- ceiving either S&D or OI&I benefits prior to and at the commencement of the strike on January 8, 1980: AMOCO OIL CO 1171 Respondent Oil Company B. The S&D and OI&I Benefit Plans T. J Henderson Jim B. Varnell D. D. Tholen Donald Bernard Robert T. Valencia R. R Pierce W A. Burton Sylvia S Abrecht Respondent Chemical Company Jack Feltner Morris Kautz Alvin J Sansom Donald C Ellingson Bryan Chatelain, an employee of Respondent Chemical, had exhausted his S&D benefits and, at the time the strike commenced, was in the process of using up his va- cation benefits in order to qualify for benefits under the Respondent's long-term disability program His vacation benefits were suspended for the duration of the strike On March 28, 1980, Respondent Chemical Company, and on May 8, 1980, Respondent Oil Company entered into strike settlement agreements and revisions to their labor contracts. Both strike settlement agreements pro- vided, in substance, that OI&I and/or S&D benefits would be resumed on the first day said employees would be scheduled to work after the strike terminated. Provi- sion was also made for the withdrawal of unfair labor practice charges and lawsuits During the course of the strikes, no work was made available for employees of either Company in the bar- gaining unit represented by OCAW, nor were any of such employees scheduled for work. Partial operations at the facilities of both companies were continued by using management personnel, professional and technical per- sonnel , and nonrepresented employees. OCAW was in- formed that these persons would operate both facilities temporarily during the strike No employees represented by OCAW were allowed to enter either facility except for possibly going to the personnel office or to resign. This same procedure was followed during strikes by OCAW occurring at Respondent Oil Company's refinery in 1969, 1974, and 1980 and at Respondent Chemicals Corporation's chemical plant in 1969, 1979, and 1980, and has been the standard procedure followed by Re- spondents commencing after the strike that occurred in 1959 at Respondent Oil Company During strikes, Re- spondents did not pay S&D or OI&1 benefits to any em- ployees in bargaining units represented by OCAW who were receiving such benefits at the time the strike began. No bargaining unit employees who became ill during the course of the strike and lockout3 received S&D or OI&I benefits during the course of the strike. At the time of the 1980 strike, approximately 92 percent of the employ- ees of Respondent Oil Company and 94 percent of the employees of Respondent Chemicals Corporation in the bargaining units represented by OCAW were OCAW members.4 9 The General Counsel does not agree that Respondents' actions on and after January 8 , 1980, constitute a lockout 4 The foregoing facts are based on stipulations between the parties and supporting documents Benefits under both plans have been the subjects of collective bargaining between both Respondents and OCAW, and both collective-bargaining agreements con- tain "Sickness and Disability Benefits" sections The di- rector of benefit plans and personnel policies for Stand- ard Oil of Indiana, testified that the purpose of the bene- fit plans, which cover the employees of all of Standard Oil's subsidiaries, was "to reimburse scheduled employ- ees at straight time wages for wages which they other- wise would have earned if they were not disabled " The plans cover managerial and supervisory personnel and employees whether represented or unrepresented by labor organizations. The costs of the plans are paid en- tirely by the employers. The S&D benefit plan covers employees after 1 year of employment for nonjob-related sickness or disabilities, with benefits increasing yearly until, with 10 years of credited service, a maximum, of benefit is reached of 12 weeks at full pay and 40 weeks at half pay The OI&I benefit plan covers employees for job-related disabilities immediately on employment with full pay for the first 12 weeks of disability and half pay for the following 40 weeks. The Respondents' personnel policy manual (Jt. Exh. 5) contains the following perti- nent S&D benefit plan provisions 36.6 An employee shall be given benefits using as a basis of computation what such employee would have earned at straight time for the regularly sched- uled work hours which would have been worked had the employee not been absent on account of sick- ness or disability [Emphasis added ] 36.20 Benefits shall not be given while an em- ployee is on vacation, layoff, or approved absence, or would not have otherwise worked [Emphasis added ] The manual contains the following OI&1 benefit plan provision- 37.15 No benefits shall be given while an employ- ee would not have otherwise worked . [Emphasis added] The "Employee Benefit Plans" booklet (Jt Exh. 4), which summarizes the benefit programs for employees of Standard Oil of Indiana and its subsidiaries, provides at page 18 You are not eligible for benefits while you are on vacation, leave of absence, suspension, or layoff. You will become eligible for these benefits at the time your are otherwise due to return to work The employee handbooks for both Respondent Oil Company and Respondent Chemical Company (Jt. Exhs 6 and 7) state that to qualify for benefits, an employee must be unable to perform his "work assignment." "Thus, [argue the Respondents] the source document [Jt. Exh. 5] interpreting and applying the Disability Plans clearly embodies the requirement that [in addition to being verifiably unable to work] an employee miss sched- uled work as a result of the disability. It should be noted 1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that the concept of 'scheduled to work' refers to the availability of scheduled work It is the fact that they would be otherwise scheduled to work if not ill [i e, that there are hours of work being performed by their classi- fication] that is required under the Disability Plans " It is argued by Respondents that when they "locked out" their respective employees during the strikes that com- menced on January 8, the employees who were then re- ceiving S&D and OI&I benefits, were no longer entitled to them because they were no longer "scheduled to work." C. The Respondents' Strike Policy It was stipulated that during a strike in 1959 Respond- ent Oil Company for the first time operated its refinery during a strike by OCAW As a part of such operation, employees in the bargaining unit represented by OCAW were allowed to return to work during the course of the strike. Approximately 56 employees of Respondent Oil Company, who were members of OCAW and who crossed the picket line and returned to work early, were expelled from the Union for having done so There was unrefuted testimony to the effect that the returning em- ployees were subjected to name calling, some were fol- lowed on leaving the plant, an employee was severely beaten, an employee was shot at through his living room window and the windshield of his car was shot out Those employees who crossed the picket line were ostra- cized by their fellow workers, and hostility against them still exists. Similar activity occurred at Respondent Oil Company's Sugarcreek, Missouri refinery in 1959. Re- spondent claims that since the 1959 strike experience, it has uniformly failed to schedule work for striking em- ployees in order to avoid a repeat of the bad experiences resulting from its "open gate" policy that year. D. Positions of the Parties The General Counsel argues that the Respondents' dis- continuance of S&D and OI &I benefits here "fits precise- ly" under the Board 's decision in Emerson Electric Co., 246 NLRB 1143 ( 1979) enfd as modified 650 F.2d 463 (3d Cir 1981). The Respondent argues that the discontinuance of the benefits resulted from the operation of the provisions of the Disability Plans , that to qualify for receipt of benefits under either the S&D or OI&I plan, an employee must fulfill two conditions : ( 1) he must have missed work for which he would otherwise have been scheduled by Re- spondents , and (2) he must have missed work because of a medical disability . Because no work was scheduled for bargaining unit employees during the lockout, no unit employees were able to fulfill the first condition for the receipt of disability benefits . Therefore , it is argued, those employees who were receiving benefits before the strike were no longer entitled to benefits for the duration of the lockout. Respondents contend they bargained for benefit plans that insured only against losing pay for hours of work missed , was in its business interest, and clearly nondiscriminatory on its face. It is argued that even if Respondents ' conduct was assumed to be dis- criminatory , they have met their burden NLRB v. Great Dane Trailers, 388 U.S 26 (1967), of demonstrating a substantial business justification for its actions Further, it is argued, the General Counsel has failed to show that the Respondents' conduct is "inherently destructive" of employee rights Respondents distinguish Emerson Elec- tric, on which the General Counsel relies, on three factu- al grounds. (1) the disability provisions in that case did not have a requirement that an employee be otherwise scheduled to work, (2) there was no lockout that resulted in the failure of an employee to fulfill such a condition precedent, and (3) the Board in Emerson Electric found that the employer's conduct had a specific antiunion mo- tivation In support of their positions the Respondents refer to an arbitrator's decision dated January 8, 1946, Respondents' Exhibit 4 In that case an employee was paid sick benefits from September 18, 1945, through Sep- tember 22, but not from September 23 through October 5 when the plant was shut down because of a strike. The sick plan agreement provided, inter alia, that "It is t e general intent to give the benefits in the schedule based on what the employee would have earned on a straight- time basis had he remained at work during the regularly scheduled working days for which benefits are given ." The arbitrator denied sick leave pay to the em- ployee for the period in issue on the ground he sustained no lost wages since the plant was idle during the strike, there were no regularly scheduled working days, no actual working hours, and no normal productive or maintenance work performed I attach no precedential value to the arbitrator's decision. Here, in contrast to the facts in 1945, the plant was not idle during the strike and individuals, albeit managerial, supervisors, and nonbar- gaining unit employees were performing scheduled work. Respondent contends the dispute involved herein was settled by the Respondents and the OCAW at the con- clusion of the strike and lockout, and that the agreement of OCAW to withdraw its previously filed unfair labor practice charges concerning S&D and OI&I benefits was binding on all the charging parties This contention was made before Judge Ricci in the Emerson Electric case and was found without merit There, the charge had been filed by the union which entered into a similar agreement Here the charges were filed by aggreived employees. As Judge Ricci pointed out (246 NLRB 1143, 1149): The Board acts in the public interest to enforce public, not private, rights. National Licorice Co v. NLRB, 309 U.S. 350 (1940); Amalgamated Utility Workers Y. Consolidated Edison Co., 309 U.S 261 (1940); Agwihnes, Inc. v. NLRB, 87 F 2d 146 (5th Cir. 1936) "Whenever private contracts conflicts with its functions, they obviously must yield or the Act would be reduced to a futility." J. I Case v. NLRB, 321 U.S. 332 (1940). Section 10(a) of the Act explicity provides that the Board's power to prevent unfair labor practices "shall not be affected by any other means of adjust- ment or prevention that has been or may be estab- lished by agreement, law, or otherwise . . ." Ac- cordingly the "parties cannot by contractual agree- ment divest the Board's function to operate in the AMOCO OIL CO public interest " Boire v International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America [Pilot Freights Carriers, Inc.], 476 F 2d 778 (5th Cir. 1973) Accordingly, I find no merit to this contention E Conclusions The Respondents seek to disassociate the discontinu- ance of S&D and OI&I benefits from strike action by contending it locked out the unit employees, thereby contractually disqualifying them from the receipt of ben- efits. However, it is clear from the letters of January 8 and 9 that the Respondents' action in discontinuing those benefits had its genesis in the strike that commenced on January 8 It is also evident from the language of those letters that the Respondents' action is directed only at those employees who are represented by the OCAW. That the Respondents' action was specifically directed at applying additional pressure against the striking employ- ees is made clear by the January 9 letters that condition a resumption of benefit payments on (1) the end of the strike, or (2) when "work is made available to employees in the bargaining unit " However, the second condition has a hollow ring when it is remembered that one of the reasons advanced for the "lockout" was to maintain in- dustrial peace by not making work available to employ- ees in the bargaining unit 5 Thus, it is seen that the moti- vating factor for both the discontinuance of the benefits, and their resumption, was the strike, and the January 9 letters to employees already receiving either S&D or OI&I benefits have the effect of treating them as strikers. Contrary to the contention of the Respondents, I con- clude that the rationale of Emerson Electric is controlling and that the termination of the S&D and OI&I benefits was intended to coerce and restrain the protected union activity with respect to the strike, by imposing a sanction against unit employees receiving those benefits if others in the unit engaged in strike activity But for the strike, those receiving S&D and O1&I benefits would have con- tinued to receive them Work would have been sched- uled for the unit employees except for the strike, and was in fact scheduled for managerial and supervisory personnel and nonunit employees during the strike Pre- sumably, therefore, any nonunit employees who had been receiving benefits prior to the strike would have continued to receive them during the strike by virtue of the fact they were not represented by OCAW and were not participants in the strike It is an established principle of law that an employer may not withhold payment of already earned or accrued benefits contingent on the cessation by employees of a le- gitimate economic strike. NLRB P. Great Dane Trailers, supra, NLRB v. Erie Resistor Corp, 373 U S. 221 (1963), Industrial Workers AIW Local 289 v. NLRB, 476 F.2d 868, 875-876, 878 (D C Cir 1973), NLRB v Jemco, Inc, 465 F 2d 1148, 1151-1152 (6th Cir 1972), cert. denied 409 U.S 1109 (1973), NLRB v. Frick Co, 397 F.2d 956, 5 The January 8 letters cast further doubt on the Respondents' industri- al peace justification for its lockout by inviting strikers to inform the em- ployers that they desire to resume working 1173 961 (3d Cir 1968), Indiana & Michigan Electric Co., 236 NLRB 986 (1978), enfd. 610 F 2d 812 (4th Cir. 1979), cert denied 447 U S 923 (1980) That, of course, is pre- cisely what the Respondents have done here By reason of their past service, all the charging party employees had qualified to receive either S&D or OI&I benefits under the terms of the collective-bargaining agreements and the benefits plans for periods extending beyond Jan- uary 8, the day the strike commenced. Further, it is found that they were accrued benefits constituting de- ferred compensation for work already done. In my view Emerson Electric stands for the proposition that employ- ees receiving disability benefits prior to a strike have the protected right to continue receiving those benefits unless the employer "has acquired information which in- dicates that the employee whose benefits are to be termi- nated has affirmatively acted to show public support for the strike." Barring such affirmative action, as here, the disabled employees are entitled to their benefits for the full length of their sickness or disability. This is consist- ent with the Board's recent decisions in Texaco, Inc., 259 NLRB 1217 (1982), Walter Motor Truck Co., 256 NLRB 1059 (1981); and Texaco Oil Co., 259 NLRB 408 (1981). The fact that Bryan Chatelain was receiving accrued vacation benefits during the strike is not a sufficient dis- tinction to deny him that benefit during the strike. The long-term disability plan called for the exhaustion of other benefits, i e , S&D or OI&I and vacation in order to come under the Respondents' long-term disability pro- gram It is obvious from the record that Chatelain was not "on vacation" in the sense that he was exempted from work for rest and relaxation Respondent Chemical Company admits that he was disabled during the strike, having already exhausted his S&D benefits, and was ex- hausting his vacation benefits as a prerequisite to the re- ceipt of benefits under the long-term disability benefits plan. Thus, utilization of vacation benefits in these cir- cumstancs was but a part and parcel of the entire disabil- ity benefits program and Chatelatn, as a disabled employ- ee, was entitled under Emerson Electric rationale, to con- tinue to receive his accrued vacation benefit in the ab- sence of a showing that he affirmatively acted to show public support for the strike It appears from the record that Aetna Insurance Company in fact commenced making long-term disability benefit payments to Chate- lain effective February 5, 1980, but suspended them on February 25 because of the strike. (See G.C. Exhs 2 and 3) Presumably, by this time Chatelain will have received all vacation payments if so, he is entitled to interest for the period from the time the benefits were withheld until paid, a matter which may best be determined at the com- pliance stage. In sum, consistent with Emerson Electric, Texaco, Inc., Walter Motor Truck Co, and Texaco Oil Co., supra, I conclude and find that by terminating the S&D and OI&I payments to employees, including the vacation benefits due Chatelatn, because of the strikes, the Re- spondents discriminated against their respective employ- ees and thereby discouraged membership in OCAW in violation of Section 8(a)(3) and (1) of the Act 1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and THE REMEDY on the entire record, I issue the following CONCLUSIONS OF LAW 1. Amoco Oil Company and Amoco Chemicals Corpo- ration are each employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Oil, Chemical and Atomic Workers International Union , AFL-CIO, and its Local 4-449 are labor orgiza- tions within the meaning of Section 2(5) of the Act. 3. By withholding payment of sickness and disability and/or occupational illness and injury benefits of T. J. Henderson , D. D. Tholen, Robert T. Valencia, W. A. Burton , Jim B. Varnell , Donald Benard, R. R. Pierce and Sylvia S. Abrecht during a strike when those em- ployees were not participants in the strike , Respondent Amoco Oil Company violated Section 8(a)(3) and (1) of the Act. 4. By witholding payment of sickness and disability and/or occupational illness and injury benefits of Jack Feltner , Alvin J. Sansom , Morris Kautz and Donald C. Ellingson , and by withholding vacation benefits which disabled employee Bryan Chatelain was required to use in order to receive long-term disability benefits, during a strike when those employees were not participants in the strike , Respondent Amoco Chemicals Corporation violat- ed Section 8(a)(3) and (1) of the Act. 5. The above-described unfair labor practices affect commerce within the meaning of Section 2(2), (6), and (7) of the Act. Having found that Respondent Amoco Oil Company and Respondent Amoco Chemicals Corporation have each engaged in certain unfair labor practices , it is rec- ommended that each of them be required to cease and desist therefrom and take certain affirmative action de- signed to effectuate the purposes of the Act. It having been found that Respondent Amoco Oil Company unlawfully withheld sickness and disability and/or occupational illness and injury benefits from T. J. Henderson ,. D. D. Tholen, Robert T. Valencia, W. A. Burton , Jim B . Varnell, Donald Bernard , R. R Pierce, and Sylvia S. Abrecht, during a strike at times when they were not strike participants , these employees should be reimbursed for whatever the benefits were due them during the period January 8, 1980 , the date the strike began, until the benefits were resumed , with interest. It having been found that Respondent Amoco Chemi- cals Corporation unlawfully withheld sickness and dis- ability and/or occupational illness and injury benefits from Jack Feltner , Alvin J. Sansom , Morris Kautz, and Donald C. Ellingson , and unlawfully withheld vacation benefits which disabled employee Bryan Chatelain was required to use in order to receive long-term disability benefits , during a strike at times when they were not strike participants, these employees should be reimbursed for whatever benefits were due them during the period January 8 , 1980, the date the strike began , until the bene- fits were resumed , with interest. [Recommended Order omitted from publication.]