Conoco, Inc.

National Labor Relations Board - Board Decisions

Dec 10, 1982

265 N.L.R.B. 819 (N.L.R.B. 1982)

CONOCO, INC.
Conoco, Inc. and Charles J. Moore, for and on
behalf of Oil, Chemical and Atomic Workers
International Union AFL-CIO, Local 6-659
and Patricia A. Fransen. Cases 18-CA-6571
and 18-CA-6665
December 10, 1982
DECISION AND ORDER
On January 5, 1981, Administrative Law Judge
Robert W. Leiner issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
The Administrative Law Judge found, inter alia,
that Respondent had violated Section 8(aX)(1) and
(3) of the Act by discontinuing Patricia Fransen's
disability benefits at the commencement of a strike.
To remedy this violation, the Administrative Law
Judge utilized the remedy provided by the Board
majority in E L Wiegand Division, Emerson Elec-
tric Co.2 For the following reasons, we have modi-
fied that remedy.
The stipulated facts show that for some 29 years
the Union has been the collective-bargaining repre-
sentative of the production and maintenance em-
ployees involved here. The parties' most recent
collective-bargaining agreement ran from January
8, 1979, through January 7, 1981. However, on
January 8, 1980,3 the Union commenced a lawful
economic strike at Respondent's facility. At the
time of the strike, Patricia Fransen was a unit em-
ployee of Respondent. However, commencing on
January 3, she had been unable to work for medi-
cal reasons, and, at the start of the strike on Janu-
ary 8, she was confined to a hospital. As of Janu-
ary 3, Respondent began paying Fransen disability
payments pursuant to Respondent's Comprehensive
Disability Income Plan (CDIP). However, starting
on January 8, with the advent of the strike, Re-
spondent discontinued Fransen's disability pay-
ments although it knew on that date that she was
I The Administrative Law Judge found, ad we gree, that Respond-
ent's disciplinary action against four strikers violated Sec. 8(X1) of the
Act. However, the Administrative Law Judge erroneously recited that
the prties had stipulated that the discipline "was for an act or acts of
misconduct during the strike," when in fact the stipulation read that the
discipline was imposed for "alleged acts" of misconduct. We hereby cor-
rect this error. We note our agreement, however, with the Administra-
tive Law Judge that the analysis of the Board in Wrigh Line. a Dieision
of Wright LinA Inc, 251 NLRB 1083 (1981), is inapplicable to the issue of
Respondent's discipline of strikers for alleged strike misconduct. See, e g.,
Garrett Railrad Car Equipment Inc. 255 NLRB 620, fn. I (1981).
246 NLRB 1143 (1979), hereinafter called Emeryt
t All dates are in 1980 unless noted otherwise.
265 NLRB No. 116
still in a hospital and under a doctor's care. Re-
spondent did not pay benefits to her thereafter.
The stipulated facts also reveal that, on February
22, Patricia Fransen began an active participation
in the strike by picketing for the Union. Her doctor
had authorized her to return to work, commencing
March 25. However, the strike did not end until
April 1, and the employees returned to work on
April 2.
The General Counsel alleged that Respondent's
denial of the disability benefits to Fransen at the
outset of the strike violated the Act. Respondent
countered that its action was permitted under the
CDIP, which indicated at subsection 4 of the
"Denial of Benefits" section that benefits could be
curtailed in the following situation:
If benefits are being paid prior to a strike or
layoff, such benefits will cease for the duration
of such strike or layoff. No benefits will be
paid during the time you are on strike or
layoff.
Respondent also sent a letter to its striking employ-
ees on January 15 which reminded them with
regard to the Plan that "Coverage under the
[CDIP] is discontinued for employees on strike."
Based on the above facts, the Administrative
Law Judge found the violation as alleged by the
General Counsel. He found that under our decision
in Emerson, supra, the General Counsel had made
out a prima facie case of an 8 (aX)(1) and (3) violation
in the denial of the benefits and he rejected Re-
spondent's defense which was predicated largely
on subsection 4 of the "Denial of Benefits" section
of the CDIP. However, the Administrative Law
Judge assumed for the purpose of his decision that
the Union had, in fact, agreed to that subsection
and that it was not, in fact, an illegal provision.
Nonetheless, he found the provision so ambiguous
that it could not clearly be said to apply to Fran-
sen. Instead, he found from the provision's second
sentence and Respondent's own January 15 letter
to the employees about the cessation of benefits
during the strike that the restriction on the pay-
ment of benefits under the plan applied only to
those employees who were on strike. Because the
Administrative Law Judge concluded that the hos-
pitalized Fransen could not be "on strike," he
found the subsection on which Respondent relied
did not apply to her.
With respect to the remedy, however, and con-
sistent with the Board majority decision in Emer-
son, supra, the Administrative Law Judge conclud-
ed that Fransen was entitled to disability benefits
only from January 9 until February 21 because, on
February 22, she had joined the strike and ap-
819
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
peared on the picket line. As Fransen first indicat-
ed "public support" for the strike on February 22,
the Administrative Law Judge was constrained
under Emerson to terminate the remedy as of Feb-
ruary 21, notwithstanding that Fransen was not
cleared to return to work by her doctor until over
a month later, on March 25. It is the Administra-
tive Law Judge's latter finding with regard to the
appropriate remedy that we now reverse. While
we agree that Respondent's withholding of disabil-
ity benefits to Fransen violated the Act, we now
also hold that, once a disabled employee's benefits
have been illegally cut off because of a strike, the
disabled employee should be recompensed for
those lost benefits until it has been determined
either that the disability on which the benefits are
based has ended, or the contractual right to receive
such benefits has run out, whichever comes first.
Here, we find that Fransen's benefits should have
continued through March 24, the day preceding
the date that Fransen was freed to return to work.
In so concluding, we rely heavily on the analysis,
set out below, which is consistent with the views
of Member Jenkins in his separate opinion in Emer-
son as well as those of the Third Circuit Court of
Appeals in that proceeding. 4 The reasons for our
change of view follow.
In Emerson, the employer had terminated certain
sick and accident benefits that it had been paying
to disabled employees solely because other employ-
ees then actively employed at the employer had
gone out on strike. In finding a violation, the
Board overruled Board precedent s which held that
an employer may reasonably conclude that em-
ployees who are on sick leave before a strike sup-
port the strike. In so concluding, the employer
could rely on the facts that the strike was effective
and the employees were union members, even
though the employer had no way of knowing with
certainty whether the employees on sick leave did,
or did not, support the strike activities of their
fellow employees. In rejecting that precedent, the
Board in Emerson concluded that an employer
could not rely on such speculative grounds to justi-
fy the termination of existing disability benefits to
employees which had accrued to them as a result
of past work performed. The Board found that dis-
abled employees had a Section 7 right to refrain
from declaring their position on a strike while they
were medically excused, and that an employer
could no longer require its disabled employees to
disavow strike action during their sick leave in
* See 650 F.2d 463 (1981), cert. denied 102 S.Ct. 1429, 109 LRRM
2778 (1982).
' See Southwestern Electric Power Company, 216 NLRB 522 (1975).
While Respondent argues that we should return to that precedent, we de-
cline to do so.
order to receive disability benefits. The Board con-
cluded that to allow the termination of such bene-
fits to certain employees as a result solely of the
strike activities of others was to penalize employees
who had not yet acted in support of the strike. The
Emerson majority also concluded, however, that
while disabled employees need not affirmatively
disavow the strike action, neither could they par-
ticipate in the strike without running the risk of
forfeiting benefits prospectively, and the majority
found that any disabled employees, who affirma-
tively demonstrated support of a strike by picket-
ing or otherwise showing public support for the
strike, had enmeshed themselves in the ongoing
strike activity to such an extent as to terminate the
right to continued disability benefits.
In sum, in Emerson, the Board majority held that
for an employer to be justified in terminating any
disability benefits to employees who were unable
to work at the start of a strike it had to show that
it had acquired information which indicated that
the employees whose benefits were to be terminat-
ed had affirmatively acted to show public support
for the strike. Barring such affirmative action, the
disabled employees were entitled to disability bene-
fits in accordance with the established benefits plan
for the length of their sickness or disability.
In his dissent in Emerson, Member Jenkins
agreed that a violation of the Act had been made
out in the employer's termination of the sickness
benefits due the employees. However, he disagreed
with the remedy proposed by the majority. He
found that the benefits were a form of compensa-
tion for past services and had fully vested upon the
commencement of the employees' actual disability.
Hence, he found no event, other than an employ-
ee's recovery, could terminate the employer's obli-
gation to continue payments to employees on dis-
ability before the strike began.
Thereafter, the Board petitioned the Third Cir-
cuit Court of Appeals for enforcement of its Order
in Emerson and both the employer and the union
cross-petitioned for review of that Order. The
court found that the employer's discontinuance of
the disability benefits to disabled employees at the
outset of the strike violated the Act. However, the
court rejected the remedy proposed by the Board
majority as inappropriate for the violation found.
The court noted that the Board remedy-that no
benefits should be paid once an employee demon-
strated public support for the strike-was premised
on the concepts that (a) such public support "en-
meshed" the employee in the strike, and (b) an em-
ployer should not have to finance a strike against
itself, or aid those who.engaged in such a strike.
The court, however, found that the basis of the
820
CONOCO, INC.
Board's Emerson decision was that the disability
benefits involved there had accrued. The court
noted that since an employer could not deny ac-
crued benefits to strikers who were otherwise enti-
tled to them, it also could not deny benefits to dis-
abled employees merely because the disabled em-
ployees approved of, or participated in, the strike.
The court also found that accrued disability bene-
fits did not constitute unfair strike financing by the
employer. The court went on to find that the
Board majority's reasoning in Emerson on the
remedy was also inconsistent with the Board's rea-
soning in Abilities and Goodwill, Inc.6 The court
noted that in Abilities and Goodwill the Board had
refused to limit the remedy of an employee who,
after being illegally discharged, engaged in strike
activity, since the Board was unwilling to presume
the absence of a connection between the employ-
ee's conduct in striking and the unfair labor prac-
tice. After noting this, the court in Emerson found
that:
Here where the employer's termination of the
. . .benefits was found to be an unfair labor
practice, it follows that such unlawful conduct
may have induced strike participation and the
employer should not be allowed to benefit
from a presumption that its conduct did not
induce the participation. 7
The Emerson court also found that the Board ma-
jority remedy was inconsistent with Board holdings
in other cases that an employee who pickets during
off-duty time cannot be considered a "striker"
against whom the employer can act.
The court recognized that an employer did not
have to continue paying disability benefits when an
employee was no longer disabled. Although the
court noted that "[a]ctive participation in strike ac-
tivity may be telling, or even presumptive, evi-
dence of cessation of disability,"8 it concluded that
such activity standing alone does not necessarily
establish the end of the disability but rather is one
factor to be considered with others in determining
when, as a matter of fact, the disability has ended.
It expressly noted, however, that "use of the mere
expression of public support for the strike by a dis-
abled employee, such as one still in the hospital, as
the basis for termination of benefits is inherently
destructive of the employee's section 7 rights."9
The court concluded that:
a 241 NLRB 27 (1979), enforcement denied on other grounds 612 F.2d
6 (1st Cir. 1979).
7650 F.2d at 474.
SId
aId
[T]he Board's decision to end benefits on the
basis of active participation or public support
for strike activity cannot stand. It is internally
inconsistent with the Board's own rationale in
this case. It varies from the Board's policies as
set out in previous decisions, and frustrates ef-
fectation of section 7 rights. 10
In light of the court's comments, we are now
persuade' that further adherence to the limited
remedy tablished in the majority opinion in Em-
erson is i iconsistent with our duty to remedy viola-
tions of the Act. Accordingly, to the extent that
any cases provide for a remedy inconsistent with
that set forth in this opinion, they are hereby over-
ruled. Henceforth, in cases such as the instant one,
where an employer because of a strike unlawfully
terminates accrued benefits it has previously pro-
vided disabled employees, we shall order that em-
ployer to provide to such employees the amount of
the disability payments, plus interest, that the em-
ployee otherwise would have received after the
date the employer terminated the disability bene-
fits. In so doing, we emphasize, as the Court of
Appeals for the Third Circuit pointed out, that an
employer remains free to challenge the disability of
any employee engaged in active participation in
strike activities.
Our dissenting colleague errs in claiming that we
have ignored the terms of the agreement between
Respondent and the Union which established the
disability benefit plan. Under our colleague's view,
the contractual provision that "No benefits will be
paid during the time you are on strike or layoff"
precludes Fransen from being eligible for benefits
after February 22, the date she began picketing for
the Union. However, as we have emphasized
above, picketing for the Union, or otherwise par-
ticipating in the strike, does not render an individu-
al a striking employee. The key is whether that em-
ployee is withholding services from the employer
in support of a labor dispute, and in this case Fran-
sen was disabled from working until March 25.
Until that latter date Fransen did not have the
option to become a striker.
0o Id
" Member Panning suggests, in his separate opinion, that Fransen's
entitlement to disability benefits terminated, by agreement of the parties.
on February 22, when she commenced joining in strike conduct by walk-
ing the picket line. In substance, his position reflects adherence to the
Board majority position in Emerson Electric Ca. seupra which the court
of appeals rejected in reviewing that decision, and which we now aban-
don. He attempts to buttress his position with an overlybroad construc-
tion of the factual stipulation here. As reflected in the Administrative
Law Judge's Decision, the parties stipulated only that Fransen engaged
in picketing from and after February 22. This does not, as Member Fan-
ning would have it, amount to a stipulation that she was "on strike" as of
that date or that her disability had ended and. for the reasons stated
above, we find that neither occurred.
Continued
821
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on the above, in the instant proceeding we
shall order Respondent to provide employee Fran-
sen with the disability benefits, plus interest, which
Respondent unlawfully failed to give her for the
period commencing January 9, 1980, through and
including March 24, 1980, the last day of her dis-
ability. 1 2
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, as modi-
fied below, and hereby orders that the Respondent,
Conoco, Inc., Wrenshall, Minnesota, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(b):
"(b) Make whole employee Patricia A. Fransen
by paying to her, with interest, the disability bene-
fits pursuant to the Comprehensive Disability
Income Plan which were due to her during the
period from and including January 9, 1980, through
March 24, 1980."
2. Substitute the attached notice for that of the
Administrative Law Judge.
Second, Member Fanning construes the collective-bargaining agree-
mcent as terminating benefits to employees who engage in strike activity,
regardless of whether their disability would otherwise preclude them
from working, and hence preclude them from withholding their services
from their employer. Because we do not accept Member Fanning's loose
construction of the contract provision quoted above, we need not poa on
the question whether Respondent and the Union could have agreed law-
fully that disability benefits would terminate due to strike-related events
However, Member Fanning, in adhering mechanically to the conditions
established in such plans, apparently would allow benefits to be terminat-
ed during any strike activity if the parties so agree. As noted by the court
in Emerson, such a result would be inherently destructive of employees'
Sec. 7 rights. (650 F.2d at 474.) In such a situation, the disabled employee
would be unable to offer to return to work and would be enmeshed in
the strike without choice for its duration.
is While there were no exceptions taken to the Administrative Law
Judge's failure to grant a broader remedy than that detailed in the
Board's Emerson decision, we note that we do have before us exceptions
to the remedy he proposed, and we find the remedy we now order more
fully effectuates the purposes of the Act and better fulfills our mandate
under Sec. 10(c) of the Act. Further, we find no reason which would
prohibit our applying his revised remedy retroactively. See, generally,
N.LR.B. v. Lyon & Ryan For4 Inc., 647 F.2d 745, 757 (7th Cir. 1981).
Moreover, in this case, Respondent is merely being required to pay an
accrued benefit and the effect of our remedy is only to prevent unjust
enrichment to Respondent by its retention of benefits due its employees.
See Emeran, supa, 650 F.2d at 473.
Our dissenting colleague encounters problems with our ordering an ex-
panded remedy here as he notes there was no corresponding unfair labor
practice alleged in the complaint for this time period. That observation
on his part is eminently correct as the law was not then what we now
decide it is. But our ordering an expanded remedy here is nothing more
than our applying retroactively a decision we reach here today. This is
clearly within our province, and our dissenting colleague has, in fact.
joined in similar determinations in the past. See, e.g., Laidaw Corp., 171
NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969).
MEMBER FANNING, concurring in part and dissent-
ing in part:
·I agree with my colleagues, for the reasons set
forth in Emerson Electric Co., that Respondent vio-
lated Section 8(aXl) and (3) by discontinuing em-
ployee Fransen's disability payments at the com-
mencement of the strike. I disagree, however, with
their finding that Fransen was, pursuant to Cono-
co's disability plan, entitled to receive disability
benefits until March 25, the date when she was cer-
tified to return to work, as opposed to February
22, the date it was stipulated she engaged in active
participation in the strike against Respondent.
My initial disagreement with the majority is with
their assumption that, as "accrued benefits," Cono-
co's disability plan, as well as all employer disabil-
ity plans, require that payments be made until
benefits are exhausted or the disability ends, re-
gardless of the circumstances. While some employ-
er plans might, others do not. Nor does Conoco's.
Here, the benefits provided by Conoco's plan are
"accrued" only in the sense that eligibility to re-
ceive them and the amount to be received are a
function of an employee's length of service. How-
ever, the "right" of an otherwise eligible employee
to receive, or to continue to receive, Conoco's dis-
ability benefits is contingent upon satisfaction of
the particular conditions of the plan; i.e., that the
employee, inter alia, be neither on strike1 3 nor on
layoff. Thus, the disability payments are not akin to
a lump sum payment "due and owing" but, rather,
are contingent upon present and future circum-
stances-the continued satisfaction of the plan's
conditions. 14 I therefore cannot agree with my col-
leagues that, in all cases, an employer who illegally
cuts off benefit payments at the commencement of
a strike is obligated to reimburse employees for
such benefits until either the exhaustion of benefits
or the end of the disability, whichever comes first.
While such a "rule" might be easy to apply, it ig-
nores the simple fact that all employer disability
plans do not provide the same benefits and are not
subject to the same conditions. An employer
should not be required to pay benefits where, pur-
suant to its plan, it would not have to otherwise.
The resolution of the issue in each case requires an
application of the facts to the terms of the plan in-
volved.
Since Conoco's plan pays benefits only to dis-
abled employees who are, inter alia, not out on
's In this regard, I agree with the Administrative Law Judge's finding
that Conoco's plan does not provide for tennination of all disability pay-
ments at the outset of a strike but, rather, merely provides for the termi-
nation of payments to individual employees who are on strike.
14 Simply put, what is "accrued" is only the right to receive that
which the plan provides. Thus, had Fransen been placed on layoff, she
would, pursuant to the plan, have an "accrued" right to nothing.
822
CONOCO, INC.
strike, the issue here is whether Fransen's appear-
ance on the picket line on February 22 establishes
that she was either (1) on strike or (2) no longer
disabled. In holding that Fransen was not, in fact,
on strike as of February 22, the majority concludes
that any ambiguity must be resolved against
Conoco and finds that Fransen's picketing may
well have been a protest over the specific unlawful
withdrawal of her benefits and, therefore, unrelated
to the economic motives of other strikers. Howev-
er, even assuming that Fransen was striking against
unlawful termination of her benefits, it is well es-
tablished that unfair labor practice strikers are no
more entitled to pay than any other strikers. Nor
does the fact that Fransen may have been reacting
to an unfair labor practice directed at her personal-
ly change matters. In short, if Fransen were on
strike, I find her reasons irrelevant.'
Contrary to the majority, I consider Fransen's
picket line activity to be presumptive evidence of
the fact that she was on strike.' 6 However, were
that issue before us, I would conclude that such pre-
sumption was rebutted by the record evidence that
Fransen was not certified to return to work until
March 25. Thus, I would find that Fransen, al-
though healthy enough to walk a picket line, was
not withholding from Conoco services which,
under Conoco's normal practices and policies,
Conoco neither required nor expected from her.' 7
To conclude otherwise would be anomalous in
light of Board precedent that an off-duty employee
is not a striker against whom an employer can take
action.' s However, I do not think that finding is
"I Southwstern Pipe, Inc., 179 NLRB 364 (1969).
16 If Fransen were, in fact, on strike, the situation is not at all compa-
rable to that of the discharged strikers in Abilities and Goodwill, 241
NLRB 27 (1978), to which the majority likens it. There the Board held
that backpay, subject to offset for willful loss of earnings, accrues to dis-
charged strikers from the date of discharge. But that is so because the
employer has advised the employee that his services are no longer de-
sired by discharging him. Termination of disability benefits, lawfully or
otherwise, conveys no such message.
It There is no evidence that such medical certifications are not readily
accepted by Conoco. In this regard, I agree with the majority that, gen-
erally, a disabled employee is incapable of striking. However, this does
not mean that, in all cases, I would find a disabled employee entitled to
continuously receive benefit payments until the benefits are exhausted or
the disability ends. An employee's right to receive benefits depends on
the particular provisions of the plan involved. This, for example where
the plan effectively provides for cessation of payments for all periods
during which the employee would not have "otherwise worked", an in-
tervening event, e.g., a lawful layoff or lockout, may privilege a cutoff of
such benefits; at least for such time as work would not have been availa-
ble. Of course, Conoco could also have lawfully terminated Fransen's
benefits upon establishing that Fransen could have returned to work, but
elected to strike instead. Abilities and Goodwill supra at fn. 5 therein.
1t See, for example, M Restaunrants Incorporated d/b/a The Mandarin,
223 NLRB 725 (1976). The fact that, generally, a disabled employee is
incapable of striking does not, as Conoco contends, render meaningless
the provision of its plan which states that benefits are terminated for em-
ployees who are on strike. Nothing precluded Conoco, for legitimate
business reasons, from offering Fransen work which she was capable of
performing and thereby placing her "disability" into issue.
proper in this case, given the parties' stipulation
that Fransen was actively striking on February 22,
thereby precluding litigation of the issue.' 8 For
this reason only, I find that Fransen was on strike
on February 22 and that, pursuant to the terms of
Conoco's disability plan, she was not entitled to re-
ceive further payments. I agree with the majority
in all other respects.
i' I also note that the complaint alleged only that Conoco's termina-
tion of Fransen's benefits for the period from the commencement of the
strike until February 22 constituted an unfair labor practice. Since it was
neither alleged nor contended that Conoco's failure to pay Fransen bene-
fits subsequent to February 22 was unlawful, I see no basis for the major-
ity's ordering that Fransen be reimbursed beyond that date. It appears
from their explanation at fn. I I and accompanying text, supra, that my
colleagues either misapprehend, or have chosen to misconstrue, both the
text and the clear import of my position here, as well as the parties' stipu-
lation.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT suspend, serve warning no-
tices on, discipline, or otherwise interfere with,
restrain, or coerce striking employees who do
not engage in disqualifying strike misconduct.
WE WILL NOT withhold payments from, or
otherwise discriminate against employees, in
the exercise of their rights to engage in or re-
frain from engaging in protected concerted or
union activities, including the right to strike,
thereby discouraging membership in Oil,
Chemical and Atomic Workers International
Union, AFL-CIO, Local 6-659, or any other
labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
their statutory rights under the National Labor
Relations Act, as amended.
WE WILL make whole employees Tony
Hackensmith and Harold Frank, whom we un-
lawfully suspended, by paying them their net
backpay, with interest, and reinstitute their se-
niority and other rights of which we deprived
them by virtue of our unlawful acts against
them.
WE WILL make whole employee Patricia A.
Fransen by paying to her, with interest, her
disability benefits under our Comprehensive
Disability Income Plan for the period January
9, 1980, through March 24, 1980, inclusive.
WE WILL expunge from our records all sus-
pension or warning notices, and any references
823
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereto, relating to the January-April 1980
strike activities of Tony Hackensmith, Harold
Frank, Douglas Utech, and Joel Rabideaux.
CONOCO, INC.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge: Pur-
suant to a charge in Case 18-CA-6571 filed and served
by Oil, Chemical and Atomic Workers International
Union, AFL-CIO, Local 6-569, herein called the Union,
on February 20, 1980, and a first amended charge filed
and served on or about April 28, 1980, a complaint was
issued in Case 18-CA-6571 on April 28, 1980; and pursu-
ant to a charge in Case 18-CA-6665 filed and served on
April 24, 1980, by Patricia A. Fransen, a complaint was
issued and served on or about July 8, 1980. On July 8,
1980, the Regional Director for Region 18 of the Nation-
al Labor Relations Board issued an order consolidating
cases, and on September 8, 1980, an amendment to the
consolidated complaint which was thereafter further
amended at the hearing. To all allegations in the com-
plaints, Conoco, Inc.,1 Respondent herein, filed timely
answers. The complaint in Case 18-CA-6571, in sub-
stance, alleges violation of Section 8(aX)() and (3) of the
National Labor Relations Act, as amended, herein called
the Act, because Respondent suspended or issued warn-
ing notices to certain of its employees for their alleged
misconduct while they were engaging in an otherwise
lawful economic strike commencing on or about January
8, 1980. The complaint in Case 18-CA-6665 alleges, in
substance, that Respondent, in violation of Section
8(a)(1) and (3) of the Act, unlawfully suspended and dis-
continued sick leave payments, made pursuant to a con-
tractually supported comprehensive disability income
plan, to an employee without acquiring information
showing that the employee, the Charging Party, Patricia
A. Fransen, affirmatively acted in support of the above
strike.
Pursuant to prior notice, this consolidated matter was
heard in Duluth, Minnesota, on September 24 and 25,
1980. The General Counsel and Respondent were repre-
sented by counsel. All parties were provided opportuni-
ties to argue orally on the record, to present written and
oral evidence, to call, examine, and cross-examine wit-
nesses, and to make argument at the close of the hearing.
At the conclusion of the hearing, the General Counsel
and Respondent waived oral argument and thereafter
submitted timely briefs.
Upon the entire record, including the briefs, and upon
my observation of the demeanor of the witnesses as they
testified, I make the following:
The name of Respondent appears a mended at the hearing, the
original appearance being Continental Oil Company.
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent admits, and I find
that Conoco, Inc., a corporation with an office and place
of business in Wrenshall, Minnesota, is engaged in the
business of refining and selling petroleum products. In
the 12-month period ending December 31, 1979, in the
course of its regular business operations, it sold and
shipped from its Wrenshall, Minnesota, facility products,
goods, and materials valued at in excess of $50,000 di-
rectly to points outside the State of Minnesota, and, in
the same period, purchased and received at the aforesaid
Wrenshall facility products, goods, and materials valued
at in excess of $50,000 directly from points outside the
State of Minnesota. Respondent admits, and I find, that,
at all material times, it was and is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE UNION AS LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that Oil, Chemical and Atomic Workers International
Union, AFL-CIO, Local 6-659, herein called the Union,
is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent maintains a refining facility in Wrenshall,
Minnesota, and a nearby (about 6 miles away) terminal,
both in Carlton County, Minnesota. It employs about 94
employees in a unit, represented by the Union, of all pro-
duction and maintenance employees of the Wrenshall re-
finery. The Union was certified as the statutory repre-
sentative in that unit following a Board-conducted elec-
tion in 1953. Unit employees, pursuant to a collective-
bargaining agreement in effect for the period January 8,
1979, through January 7, 1981, are obliged to become
and remain members of the Union 30 days after the be-
ginning of their employment or 30 days after the effec-
tive date of the agreement, whichever is later.
In the period since 1953, the Union has engaged in
three strikes against Respondent: in 1969, for 100 days; in
1975, for 19 days; and in 1980, the instant strike, for 85
days commencing January 8, 1980, and ending at the
close of April 1, 1980. The employees returned to work
on April 2, 1980.
The complaint in Case 18-CA-6571 names eight em-
ployees who are alleged to be the subject of unlawful
discrimination by Respondent: five received 15-day sus-
pensions (with written "suspension" notices) allegedly
for picket line misconduct during the strike and three
others were issued mere warnings and reprimands for
similar alleged misconduct. The notices of discipline
issued during the strike. It was stipulated that all eight of
the alleged discriminatees were unit employees of Re-
spondent during the period of the strike; that in the
period January 8 through April 1, 1980, an economic
strike of the unit employees took place in which the dis-
824
CONOCO, INC.
ciplined employees participated to Respondent's knowl-
edge; and that the discipline of each of the eight employ-
ees was for an act or acts of misconduct during the
strike.
On the basis of the above-noted stipulation, and the
General Counsel having submitted in evidence the eight
suspension and warning notices issued by Respondent to
each of the employees, the General Counsel rested.
Upon Respondent's motion to dismiss, I ruled that the
General Counsel had proved a prima facie case of viola-
tions of Section 8(a)(1) within the meaning of N.LR.B.
v. Burnup d Sims, Inc., 379 U.S. 21 (1964); Rubin Bros.
Footwear, Inc., 99 NLRB 610 (1952). I continue in that
ruling.2 The Board has recently restated and reaffirmed
the law in this area: General Telephone Company of
Michigan, 251 NLRB 737 (1980).
Thereafter, Respondent adduced evidence, in accord-
ance with the procedure outlined in Burnup & Sims and
Rubin Bros. Footwear, supra, whereby it sought to dem-
onstrate that its discipline of the eight employees oc-
curred in consequence of its honest belief that the em-
ployees had engaged in such serious misconduct against
its property while engaged in the economic strike as to
withdraw the protection of the Act from the employees'
otherwise protected concerted activities. If Respondent
meets this burden, the General Counsel must establish
that the employee did not engage in such conduct or that
the misconduct was so trivial as to not justify the disci-
pline. National Aluminum, Division of National Steel Cor-
poration, supra; General Telephone Co. of Michigan, supra.
Thus, not every act of misconduct deprives the employ-
ee of the protection of the Act; and, even in the presence
of substantial misconduct, the individual employee must
be identified as a participant rather than have the acts of
others imputed to him because of his mere association as
a striker. Coronet Casuals, Inc., 207 NLRB 304, 305
(1973); American Cyanamid Company, 239 NLRB 440
(1978).
The complaint alleges, and Respondent admits, that
five employees (Glowacki, Hackensmith, Houle, Frank,
and Archambault) were issued "suspension notices" on
various dates in the period January 12 to March 24,
1980, and each of them suffered a 15-day suspension
' Respondent's brief notwithstanding, nothing in Wright Line, a Divi-
sion of Wright Line Inc, 251 NLRB 1083 (1981), or Mt. Healthy City
School District v. Doyle, 429 U.S. 247 (1977), is to the contrary. While
both decisions, directly or indirectly, concern the burden and quantum of
proof in cas alleging unlawful discrimination in violation of Sec. 8(aXI)
or (3) of the Act, neither of them suggests a sub silentio reversal or modi-
fication of Burnup & Sims. In any event, until such time that the Board
directs its judges to a strike misconduct analysis other than that of
Burnup & Sims, I am obliged to follow the Board's direction. The Board
appesua to continue to analyze these cases under Burnup d Simsn Latex
Industries Inc., 252 NLRB 855 (1980); General Telephone Company of
Michitan supra.
Insofar as Respondent would distinguish Burnup & Sims on the ground
that here there were mere disciplinary suspensions and warnings rather
than discharges, as in Burnup d Sims, the Board, as the General Counsel
notes, has rejected that distinction. MP Industries Inc. et aL, 227 NLRB
1709 (1977); American Cyanamid Company, 239 NLRB 440 (1978). Until
the Board directs that a prima facie case must include a showing of ex-
plicit motivation to punish the strikers for engaging in the strike, I will
abide by the Board rule. General Telephone Ca of Michigan. supra, Na-
tional Aluminum. Division of National Steel Corporation, 242 NLRB 294
(1979).
without pay upon their return to work after April 2,
1980.
1. Victor Glowacki; January 10, 1980
Respondent's witnesses supporting the case against
Glowacki were Medaris and Henry (Dave) Haggard.
Medaris and Haggard, statutory supervisors, are terminal
superintendents who, at material times, were employed
by Respondent in Lincoln, Nebraska, and Phillipsburg,
Kansas, respectively, in January 1980, when the strike
began in Wrenshall. With the advent of the strike, they,
and other supervisors, were assigned to "strike duty" at
Wrenshall where they performed the function of the
striking employees. For them, this required their loading
at the refinery and driving loaded trucks (loaded with
various types of petroleum products including heating
oil, jet fuel, gasoline and propane) from the refinery to
the terminal. At the terminal, other, nonstriking Re-
spondent employees would take over the loaded trucks
and make deliveries to Conoco customers. These super-
visors would also drive the empty trucks from the termi-
nal to the refinery for loading.
Medaris testified with regard to an incident of January
10, 1980, where at or about 5 p.m., a period he described
as dusk (Haggard testified that it occurred around 7 to
7:15 p.m.), while driving from the terminal to the refin-
ery, in the process of a left turn across the median in the
road to the refinery entrance, he stopped at the gate
(pursuant to an outstanding state law requiring trucks to
stop at an entrance picket line rather than going directly
through the line). As he pulled through the gate, he saw
three pickets, one on the left and two on the right. One
of the pickets, wearing a black snowmobile suit with
yellow stripes down the sleeves, walked from in front to
the right side of his truck with his hands behind his back.
Through his rear and right-side windows, Medaris no-
ticed him carrying a white Styrofoam object. Then,
through the window and rear mirror, he saw him bend
over at a point 8 feet behind him and between the front
and rear tractor wheels. Medaris said that he saw the
picket make an underhand throwing motion, and, believ-
ing that the picket was throwing nails under his tires,
Medaris spun his wheels. This procedure was designed to
flip any nail and prevent tire penetration. Nevertheless,
as he drove through the picket line and thereafter
stopped, he discovered two nails in the right tractor tire.
When he took the nails out of the tires, the nails having
not penetrated, he saw them supported by a cardboard
device which held them erect. He then went to the
guard shack and reported the matter to Respondent's
chief of security, Romeo Garcia. Garcia and Medaris
walked over to the truck where Medaris showed him the
nails and pointed out the picket who he had seen make
the flipping motion at his tires and asked Garcia if he
knew who it was. Garcia said that he did not know who
it was. Garcia testified that because the man in the black
suit with the yellow stripes on the sleeves was on the
picket line on numerous occasions thereafter, and was
pointed out to him, he thereafter learned his name to be
Victor Glowacki.
825
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In fact, while Medaris was driving into the entrance,
Henry "Dave" Haggard was driving 100 yards or so
behind him. Notwithstanding that Medaris stopped
before entering the picket line and, though Haggard had
an opportunity to see Medaris stop at the picket line, he
saw no one doing anything with regard to the right side
of Medaris' truck. That side of the truck, according to
Haggard's position, trailing Medaris, was obscured from
Haggard's vision. Following Medaris' truck by a minute
or two, Haggard turned left across the highway into the
entrance and stopped at the picket line as had Medaris.
Haggard looked in his right rear mirror and saw a man
throw something under the wheels of his truck. He de-
scribed the man as wearing a black snowmobile suit with
yellow stripes on both sleeves. He testified he thereafter
found nails in his right rear trailer tires. The nails, some
5 to 6 inches long, were stuck in a two-by-six piece of
Styrofoam. He reported this to Garcia but could not
recall a conversation with Medaris. Medaris testified that
he approached the truck while Haggard was stopped and
said that Haggard would find nails in his tires.
Romeo Garcia, Respondent's chief of security, testified
that Medaris, after 7 p.m. on January 10, came into the
guardhouse on Respondent's property about 100 feet or
more from the gate entrance area and said that the picket
in the black snowmobile suit with yellow stripes threw
nails at his tires. He went outside with Medaris and in-
spected the tires and returned to the guard shack. Garcia
was unclear whether he asked co-employee, Stanley
Tischer, a guard in the shack, whether he knew the
fellow in the black suit with the yellow stripes, but he
says he asked it of someone and that someone told him
that it was Victor Glowacki. In any event, he said that
he saw Glowacki on the picket line numerous times after
January 10, and, independently, learned Glowacki's
name.
Glowacki, employed by Respondent for 20 years, was
a picket on January 10 and was at the picket line until
about 5:30 to 6 p.m. when he was arrested by a Carlton
County sheriff and jailed in the St. Louis County jail
overnight. Thereafter, he never appeared on the picket
line and only once, on or about January 13 or 14, visited
the picket shack across the road from Respondent's refin-
ery where he met his lawyer, and thereafter, later the
same day, retrieved his car. Glowacki admits being on
the picket line, wearing a black snowmobile suit with
yellow stripes, and being present when two trucks came
in behind each other on January 10 and parked near the
guard shack. In particular, Glowacki denied having any
nails in his possession and particularly any cardboard
with nails, and denied throwing nails or having Styro-
foam in his possession or bending over or engaging in
any throwing motions. Glowacki testified that he there-
after picketed only at another Respondent facility, 10
miles from Wrenshall. Thus the General Counsel argues
that Garcia should be discredited on the ground that
Garcia testified that he saw Glowacki on numerous oc-
casions thereafter at the Wrenshall picket line when the
otherwise undisputed testimony demonstrated that
Glowacki, with perhaps one exception, did not appear at
the Wrenshall picket line after January 10.
There was evidence that other pickets wore dark
snowmobile suits and some of them had colorations on
the sleeves. There was no testimony that any of the
snowmobile suits had yellow sleeves which Glowacki
admitted that his suit possessed.
At the hearing, it appeared that Respondent's person-
nel, at both the refinery and the terminal, kept in their
possession the objects which caused damage to the tires
and other Respondent property. Although Respondent
submitted into evidence examples of the nails that it
found on or near its property, Respondent submitted no
nails which, in fact, allegedly caused injury to Respond-
ent's tires, notwithstanding that it appears to have had
these nails in its possesion at one time. In view of the
fact that Medaris testified that the incident occurred at
or about 5 or 6 p.m., and Glowacki admitted that it oc-
curred between 5:30 and 6, I would readily disregard
Haggard's recollection that it occurred sometime be-
tween 7 and 7:30 since recollections of time "at dusk"
are often notoriously untrustworthy. However, Respond-
ent failed to submit, or in fact use, any of the many re-
ports executed by its personnel, including Haggard and
Medaris, to indicate time or other particularities.
In my observation and evaluation of the witnesses, I
estimated that Haggard, in particular, appeared to me to
be a credible witness notwithstanding that his powers of
observation and recollection were, perhaps, of the least
accuracy among Respondent's three witnesses. On my
observation and evaluation, particularly of Haggard, and
measuring the testimony of Medaris and Garcia on the
one hand as against Glowacki's denials, I remain im-
pressed by Haggard who said that he saw the picket, ul-
timately identified, to my satisfaction, as Glowacki, make
a bending and throwing motion at his right rear trailer
tire and that he saw this in his mirror. Crediting Hag-
gard, I also credit Medaris and, to the extent of Medaris'
and Haggard's testimony, I also credit Garcia.
I reject the General Counsel's argument that the
height and position of their trucks and tires necessarily
obstructed Medaris' and Haggard's ability to observe
Glowacki's actions at the rear of the passenger sides.
While there may have been obstructed vision, such a
state does not proscribe Haggard's and Medaris' move-
ments inside the truck to observe Glowacki, especially as
here, when they have stopped moving. More unreliable
was Garcia's testimony identifying Glowacki. But for
Glowacki's admission that he was wearing the very
clothing on January 10 when the two trucks drove in, I
would be unimpressed with the fact that a black-suited,
yellow-striped individual engaged in this conduct, since,
contrary to Garcia, Glowacki appears not to have been
at Wrenshall line after January 10. Moreover, other pick-
ets wore the same or similar striped clothing.
On the other hand, it is not necessary to have direct
evidence of Glowacki's acts. The present credited cir-
cumstances are sufficient for Respondent's "honest
belief" of Glowacki's acts. I thus find and conclude that
on the night of January 10, 1980, Respondent had an
honest belief that Glowacki threw or placed nails at the
tires of Medaris' and Haggard's trucks. While the nails
implanted in Medaris' truck tires were plucked out with-
826
CONOCO, INC.
out penetrating, Haggard testified that the nails in his
tires penetrated the tire, and that, by the time he got
parked at the refinery, his trailer tire had gone flat.
On January 12, 1980, Respondent issued a suspension
notice to Glowacki in which it notified him that he
would be suspended for 15 working days when the strike
was over because of his January 10 conduct which re-
sulted in tire damage of S313. Respondent failed to sup-
port its assertion that the transport tire was either de-
stroyed or damaged in the sum of S313, but Respondent
proved, to my satisfaction, that it had an honest belief
that Glowacki caused a flat tire in Respondent's truck as
it was returning empty from the terminal into the refin-
ery.
In the absence of any proof by the General Counsel
that the 15-day suspension and the restitution of S313 for
the tire were unduly harsh so that such punishment
could be ascribed to motives other than the placing of
the nails in the tire and, in particular, to a motive where-
by Respondent intended to punish Glowacki for engag-
ing in protected concerted activities rather than for the
damage to the tire, I conclude that Respondent's motiva-
tion was not unlawful. Nor do I regard Glowacki's con-
duct as either trivial or an isolated incident of animal
exuberance on the picket line, Milk Wagon Drivers Union,
etc v. Meadowmoor Dairies Inc, 312 U.S. 287, 293
(1941). I regard the dropping of the nails on two occas-
sions (against Medaris' truck and against Haggard's
truck) to be a matter of studied mischief against heavy
operating vehicles carrying petroleum products which
could have consequences well beyond those envisioned
by the perpetrator, Gold Kist, Inc., 245 NLRB 1095
(1979). I therefore conclude that although the chain of
evidence was conclusive neither in the production of the
nails which caused the damages nor in Garcia's flawed
corroborating identification of Glowacki as the particular
picket in the black snowmobile suit, I nevertheless con-
clude, crediting in substance Respondent's witnesses, Me-
daris and Haggard, and discrediting Glowacki, that Re-
spondent had an honest belief that Glowacki threw or
placed nails at its truck tires and I conclude that this ac-
tivity was not protected under the Act. I further con-
clude that the General Counsel has failed, by preponder-
ance of the credible evidence, to prove that, in fact,
Glowacki did not throw the nails at Medaris, and Hag-
gard's trucks on the night of January 10, 1980. I shall
therefore recommend the dismissal of the complaint with
regard to the Glowacki suspension.
2. The four disciplines of February 8, 1980
Bearing the date February 8, 1980, Respondent issued
a disciplinary notice to Tony Hackensmith (a 15-day sus-
pension) and three warning notices individually to Doug-
las Utech, James Jensen, and Joel Rabideaux.
a. Tony Hackensmith
Respondent's February 8 notice of 15 days' suspension
(G. C. Exh. 9) to Hackensmith asserts that, on February
5, Hackensmith damaged tires of three trucks by placing
nails in the paths of the vehicles. Richard Clabough, a
* Respondent would ordinarily reasonably cause the nails to be kept.
Respondent terminal supervisor from Tulsa, Okalahoma,
testified he was called to strike duty at the Wrenshall re-
finery and drove a truck. In the evening of February 5,
he recalled that, while driving out of the refinery, he
was faced by three pickets to the right, left, and corner
of his truck. He saw the picket in the center walk over
to the left of his truck and make an underhand throwing
motion. He saw no object actually thrown and the other
two pickets were not in his view since he was watching
only the center picket who, as he was leaving, was now
on his left side. The three pickets were distinctively
dressed. One had a blue coat with a hood, the other a
black suit, and the third a stocking cap. While Clabough
recalled clearly that it was the center picket who came
to the left side of the truck and made the throwing
motion near his left front tire, his testimony demonstrat-
ed (and I saw that he was a credible witness) that he was
not at all sure whether it was the picket in the blue coat
or the picket with the stocking cap or the picket in the
black suit. On the witness stand, by a process of deduc-
tion and elimination, he arrived at the conclusion that it
was the picket in the blue coat. In any event, he drove
the 6 miles to the terminal, pulled into the garage, and
had other employees at the terminal check his tires. The
left front tire and the right outside front tire had nails in
them. It appears from Clabough's testimony, therefore,
that two tires were damaged: the left front end one, the
outside right front. Carrying the date of February 8, Re-
spondent issued a 15-day suspension notice to Hackens-
mith noting that he had damaged the tires of three truck
transports, specifically damaging the tires of a company
transport by putting nails or similar device in its path.
Far from the fact that there were neither three tires dam-
aged nor three truck transports damaged, the particular
problem is with the identification of Hackensmith.
Garcia testified that, at or about 10 p.m., the guard
shack radio operator (a Pinkerton guard employed by
Respondent at Respondent's refinery) called in by radio
to his hotel room. Garcia went to the terminal but first
called the sheriff. They arrived at the terminal at the
same time and found Clabough there. The sheriff took
the nails. Clabough, according to Garcia, was not sure of
the identification of who threw the nails under the tires.
Back at the refinery, Clabough was still not sure of the
identification but said that maybe he could arrive at iden-
tification through a process of elimination of which
picket was standing where. Thereafter, a deputy sheriff
arrested Hackensmith and charged him with criminal
damage. The arrest was on the basis of statements taken
from Pinkerton guards and then the arrest followed.
Since the arrest was made on the basis of statements
by the Pinkerton guards who did not testify in the in-
stant proceeding and whose absence was unexplained,
and in view of the fact that, as I watched Clabough, a
credible witness, attempt to identify the occupant of the
blue jacket with the hood who allegedly threw the nails
under his tires, it was clear that his identification was as
unsure as it was previously. I am unable to conclude that
on this record Respondent had a good-faith belief that it
was Hackensmith who threw nails or similar devices
under its truck driven by Clabough, or any other truck,
827
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the night of February 5. Hackensmith was thus identi-
fied as neither a perpetrator nor supporter of a picket
who apparently threw nails at some trucks.
While Hackensmith was not called by the General
Counsel to deny that he threw nails, certainly on the tes-
timony of Clabough, I was not satisfied that, by a pre-
ponderance or any measure of the evidence, Respondent
proved that Clabough identified Hackensmith as a picket
who threw the nails under his or anyone else's tires or
even was the picket wearing the blue coat or, more im-
portant, was the picket wearing the blue coat who threw
the nails. Furthermore, while I am impressed by the fact
that there were nails in tires both on the left side and the
right side of Clabough's truck and, arguendo, Hackens-
mith was allegedly only on one side, I note that the iden-
tification of Hackensmith by the sheriff for some act of
"criminal damage" to property was made on the basis of
information outside of the record produced at this hear-
ing and in particular was made by Pinkerton identifica-
tion in the sheriff's office.4 No Pinkerton statement was
produced, no Pinkerton agent was produced, and no
sheriff or deputy sheriff testified with regard to this inci-
dent. On the basis of the record before me, I am unable
to conclude that Respondent, by a preponderance of the
credible evidence, showed that it had an honest belief
that Hackensmith was the prepetrator or, if not the nail
thrower, a supporter or abettor of the nail thrower. Re-
spondent suggests no facts to the contrary. It is therefore
not necessary for the General Counsel to prove that
Hackensmith, in fact, did not perform the act. National
Aluminum, Division of National Steel, Corporation, supra,
242 NLRB 294. I conclude that Respondent violated
Section 8(a)(1) of the Act by suspending Hackensmith
for 15 days without pay in April pursuant to its February
8, 1980, letter.
b. The discipline of James Jensen: A warning letter
dated February 8, 1980
The discipline of James Jensen was a warning letter
dated February 8, 1980. It relates to conduct allegedly
occurring on January 31 and February 2 during the
strike. On January 31 he was identified by Garcia, based
solely on the statement of a nonemployee truckdriver, as
having placed nails in the path of vehicles entering or
leaving the refinery; on February 2, 1980, he was identi-
fied as having been involved in harassment of a truck
transport on a public highway by repeatedly flashing his
lights from high beam to low beam while following a
Respondent truck departing the refinery.
The testimony adduced with regard to the nail inci-
dent of January 31 was supported by only the purest
hearsay and there was no attempt by Respondent to
secure, or explain its failure to secure, the testimony of
the driver of the truck involved in the incident. I re-
fused, and continue to refuse, to receive such testimony
as evidence even of Respondent's honest belief. To
permit an absolving finding of honest belief based on
such hearsay, especially, as here, where the failure to
4 The record before me fails to disclose whether Hackensmith was ar-
rested because of the Clabough truck incident. Respondent's brief does
not suggest any such connection (br., p. 19).
secure the participant is unexplained, would be to open
the door to possible impropriety.
The other incident for which Jensen was disciplined
was that on the night of February 2, 1980, Jensen fol-
lowed in his car, from refinery to terminal, a Respondent
truck driven by Clabough and flashed his headlights to
and from high beam to low beam. Clabough stopped and
Jensen stopped 100-200 yards behind him. When Cla-
bough proceeded, Jensen again followed and resumed his
high-beam, low-beam flashing. This incident covered
about three-fourths mile.
Thereafter a deputy sheriff issued a traffic violation ci-
tation to Jensen. Jensen did not testify.
The General Counsel notes that strikers who follow
nonstrikers in vehicles, "without more [sic]," do not
engage in serious misconduct, citing Advance and Ma-
chine Pattern Corporation d/b/a Gibraltar Sprocket Co.,
241 NLRB 501 (1979). The problem, as the General
Counsel apparently notes, is his additional phrase "with-
out more." Strikers who endanger the driver, vehicle,
and other users of the road by intentional or reckless acts
are subject to discipline. Gold Kist, Inc., 245 NLRB 1095.
Since Jensen did not testify, it appears that, whether or
not Jensen intended to temporarily blind Clabough by
flashes of his high beam, the effect of his conduct might
well include that result. Such harassment, at night, of the
driver of a truck loaded with petroleum products6 en-
dangers the driver, the truck, and other innocent users. It
should not be condoned as a playful or high-spirited act
of animal exuberance. I conclude that Respondent's
warning was based on honest belief of substantial mis-
conduct and that the complaint be dismissed as to
Jensen.
c. Douglas Utech
Supervisor Garcia testified that he had only a vague
recollection of the time of day of the Utech incident.
Bearing the date of February 8, 1980, Respondent's
warning letter to Utech states that he engaged in activity
on January 29, 1980, which might result in his suspension
at the end of the strike, which activity was identified as
Utech placing nails in the path of vehicles entering or
leaving the refinery.
Garcia testified that while in the guard shack in the re-
finery he observed Utech alone on the picket line and
saw him "arranging" something with his feet. When he
saw this, he caused two Pinkerton agents to leave the
guard shack to check for nails but their attempts led to
no discovery of nails or other device. After Utech left,
the guards (including a female guard) again checked for
any items on the ground and at this time returned with a
"nail." Garcia could not recall the nature of the nail
whether it was a roofing nail or larger. In any event, nei-
ther the alleged nail nor the alleged finder was produced
nor the failure to produce either explained. Garcia identi-
fied various nails that were found during the strike and
particularly (Resp. Exh. 1) a sharpened, twisted piece of
hard metal whose configuration was of two points at
right angles to each other. When dropped or even kicked
' Trucks traveling from the refinery to the terminal are loaded.
828
CONOCO, INC.
on the ground, the tendency was for one point to bear
upwards on a stable base.
Utech testified that he was indeed on the picket line
on January 29 between 4 and 8 p.m. At or about 4 p.m.,
he said that there were usually two guards in a car near
the fence where the picket line was established. Utech
denied having nails in his possession and denied placing
nails on the ground or using his feet to place nails on the
ground. He admitted that he often shuffled his feet to
keep warm and also to play with the snow. He testified
that he was fixing his shoes and fooling with the snow at
or about 8 p.m. on January 29 and did this in order to
have Respondent's radio operator in the guard shack
notify the Pinkerton agents in the car (and other receiv-
ers of Respondent's radio signal) that a picket was fool-
ing with the snow and perhaps dropping nails in the
snow. In any event, after Utech had squatted down and
adjusted his boot and "fiddled" with the snow, the
guards came out and inspected the area. He said that
they found nothing and walked back to the guard shack.
Indeed, he testified that one of the Pinkerton guards, a
female named Marlene, picked up two handsful of snow
and walked back to the guard shack with them.
As above noted, Garcia did not produce the nail that
the Pinkerton guards allegedly found. In view of this
fact, and notwithstanding that I observed Utech's demea-
nor to be smart alecky and, indeed, he admitted engaging
in a device to insure a radio signal which the pickets in
the picket shack across the road from Respondent's refin-
ery were supposed to pick up in order to monitor Re-
spondent's radio messages to its guards, I am not satisfied
on the credible and admissiable evidence presented (and
that which might have been presented) that Respondent
indeed found a nail as a result of a search in the immedi-
ate area in which Utech squatted down, fixing his boot,
fiddling with the snow.
A first patrol of the area failed to disclose a nail not-
withstanding Utech's positions were under direct obser-
vation. Thereafter, Pinkerton guard Marlene went only
to the same general area, and looked in the snow in the
general area where Utech was patroling. Garcia said that
she came back with a nail that was not produced. Of
course, he could hardly testify that he saw her pick up a
nail. I am not satisfied either with the failure to call Mar-
lene (the Pinkerton guard) or to produce the nail or ex-
plain its absence. In view of Utech's specific denials and
notwithstanding his smart alecky testimony, I conclude
that he was fully capable of deceiving and actually acted
to deceive Respondent and that Respondent has failed to
adduce specific evidence to support its assertion that
Utech was in fact placing nails in the snow. Failing to
produce, or explain its failure to produce, -the guard or
the nail is a glaring defect in proving Respondent's good-
faith or honest belief. Further, I credit Utech's actual de-
nials and conclude that, in fact, he did not at that time
place nails in the snow as alleged by Respondent. I
therefore conclude that, as alleged in the complaint, Re-
spondent violated Section 8(a)(1) of the Act by issuing a
warning notice to Utech for such conduct allegedly oc-
curring on January 29, 1980.
d. Joel Rabideaux
The sole testimony regarding Rabideaux came from
Garcia. In support of its February 28 warning notice to
Rabideaux, for placing nails or other devices, designed to
cause damage to tires, in the path of truck transports
leaving the refinery on January 28, Garcia testified that,
about I month after the strike began, he thought he saw
Rabideaux "arranging something with his feet" at the
center of the entrance gate. He told the guard, Stanley
Tischer, to observe Rabideaux's activity which was
about 75 to 100 feet distant from the guardhouse in
which Tischer and Garcia were standing. Garcia testified
that Tischer looked through binoculars to observe Rabi-
deaux's actions. Garcia told Tischer that he thought that
Rabideaux was "setting up a nail." Neither Tischer nor
Garcia saw Rabideaux drop a nail into the snow near the
gate. Instead, Garcia directed the Pinkerton radio opera-
tor in the guardhouse to go out and inspect the area. He
said that she leaned down and searched the area and re-
turned with a 1-1/2-inch roofing nail in a piece of card-
board.
Rabideaux testified that, although he picketed the area
on January 28, he did not use, arrange, or drop any nails
on the pavement, denied using his feet to set up any nail
or puncturing device in the gateway, and asserted that
guards in a nearby Pinkerton car at the gate were there
at all times. He said that the radio operator came out to
inspect the area, looked over the grounds, kicked the
snow where Rabideaux had been walking and picked up
some snowballs and walked back to the guard shack.
In view of Rabideaux's denial, I am unable to credit
Garcia's testimony in view of the fact that neither
Tischer nor the Pinkerton radio operator (Marlene) nor
the nail was produced. While I do not suggest that Pin-
kerton guard Marlene was guilty of any wrongdoing, the
burden of showing, for purposes of supporting Respond-
ent's honest belief, that a nail was found in the area
where Rabideaux was patroling rested on Respondent,
regardless of whether the production of the nail would
be sufficient proof that Rabideaux was responsible for
deploying it. But even if the circumstances of finding the
nail were linked with Rabideaux's presence so that Rabi-
deaux would be responsible for dropping the nail, no
proof exists except the indirect testimony of Garcia.
Both corroboration and stronger testimony existed: the
testimony of the participating Pinkerton guard (Marlene)
and of Tischer who allegedly held Rabideaux under ob-
servation with his binoculars. Although Tischer was
called as a Respondent witness, he testified on only one
subject and that one subject did not relate to Rabideaux.
In view of his alleged conspicuous participation in the
Rabideaux incident, Tischer, a witness who might ordi-
narily be thought favorable to Respondent, should have
been called as well as the radio operator. In any event,
the nail should have been produced which the radio op-
erator (Marlene) went to considerable effort to discover.
In view of the failure to produce the nail or the radio
operator or to have Tischer testify to the event, notwith-
standing he testified at the hearing, I not only credit Ra-
bideaux's denial, but also, as a preliminary matter, con-
clude that Respondent has failed even to produce suffi-
829
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cient credible evidence to support its alleged honest
belief that Rabideaux was responsible for the setting up
of a nail. I therefore conclude that, as alleged in the
complaint, Respondent violated Section 8(a) 1) of the
Act by issuing its February 8, 1980, warning to Rabi-
deaux with regard to the above January 28 incident.
3. George Houle
By letter dated February 13, 1980, George Houle re-
ceived a suspension notice for 15 working days because
of conduct on February 11, 1980. This conduct included
the twisting of signal lights and mirrors, the removal of a
truck's fuel cap as the Conoco transport entered the re-
finery and thereafter opening the drain valve on a de-
parting trailer, leaving only the dust cap as a protective
device; and removing the radio antenna from a Pinkerton
car. Michael Paul, a Respondent supervisor who was en-
gaged in replacement-driver strike duty on the evening
of February 11, 1980,6 testified that, as he stopped at the
picket line while entering Respondent's refinery, a picket
later identified as George Houle stepped in front of the
truck and, proceeding to the left side, put his hand on
the fender signal light and twisted it. Houle then ap-
proached the driver's door, cursed Paul, twisted the left
outside mirror on his truck, walked around the truck,
and twisted the outside right-hand mirror; then removed
the right-hand side fuel cap from the truck leaving the
cap dangling on a chain. Although Paul did not see him
remove the cap, the circumstances suggest, and I find,
that the only person who went to the truck's right side
between the time that Paul left the terminal with the fuel
cap properly set, and this incident when Paul found it
dangling thereafter, was Houle. I do not credit Houle's
denial and his assertion that he merely made signs to
remove the gas cap and never actually did so. I further
reject his testimony that he made these signs of removal
on the driver's side and never went to the passenger side
to remove the fuel tank cap. Similarly, I reject his state-
ment that he merely wiped off the signal lens on the left-
front fender and did not twist it. The parties are not in
dispute that Houle did not do damage to the signal light
or the mirrors which he admits twisting on both sides of
the truck cab.
In view of the findings made hereafter, however, it is
unnecessary to evaluate the seriousness of this Houle
misconduct, above, or of any suspicious severity of Re-
spondent's punishment therefor.
The evidence further shows that at or about 20 min-
utes after this incident, while Paul was loading heavy
number six (#6) oil (heating oil) at the refinery, this
loading being about 100 yards from the gate, Paul saw
the same picket (Houle) who had wrenched his signal
light and removed the gas cap open the discharge valve
at the rear center of a loaded oil truck leaving the refin-
ery. This meant that the only covering of the discharge
pipe was a dust cover which would prevent leaks or the
discharge of oil through the open valve. According to
the credited testimony at the hearing, contrary to Re-
spondent's suspension notice to Houle (G.C. Exh. 10)
there was little likelihood of oil spilling in transit from
e The evidence shows that the area was well lighted.
the open valve in view of the positioning of the dust
cover. On the other hand, the evidence shows that after
delivery to the terminal, the driver who would take over
the loaded truck and, removing the dust cover, attempt
to connect the discharge hose to the drainpipe would
have his hands met with a quart or more of number six
oil heated to over 200 degrees Fahrenheit. As explained
at the hearing, this would be the amount of oil that could
reasonably be expected to be positioned in the pipe mani-
fold between the dust cover and the unexpectedly
"cracked" valve.
When Paul saw the picket (ater identified as Houle)
"crack" the valve on the departing truck, he notified Re-
spondent's security service which thereafter notified the
driver who was to accept the truck to secure the valve.
Paul then finished loading his own truck, and left the re-
finery. Although he stopped at the picket line while exit-
ing the refinery, he saw no one touch his truck. While
driving from the refinery to the terminal, he was notified
by radio of a defect in his truck and two employees of
Respondent (from the terminal) stopped him on his way
to the terminal and told him that someone had removed
the dust cover from the discharge valve on the right side
of his truck. The valve had not been opened.
Although other pickets wore black snowmobile suits,
some with yellow stripes, which was the attire of
George Houle on the night of February 11, Stanley M.
Tischer, Respondent's guard, recalled that it was Houle
whom he saw open the right-side valve on Paul's truck
that night. He credibly testified that Houle, a large man,
could be easily identified by him apart from the particu-
lar costume he was wearing that night because of the
brightly lit conditions and Houle's size. Thus Tischer ap-
parently corroborates Paul7 and I credit Paul and the
corroboration. While it appears that even "cracking" the
valve would not cause large spillage of heating oil, yet
the unsuspecting driver who attempts to connect his
hose to the open discharge valve would, upon removing
the dust cover, risk being burned by hot oil.
Since I credit Paul's identifying Houle opening the dis-
charge valve on another departing truck on February 11,
1980, and since such act might cause hot oil to spill on
the unsuspecting remover of the dust cover, I conclude
that Respondent had an honest belief that Houle's act
was unprotected, could be the subject of the 15-day sus-
pension, and was not violative of the Act, as alleged. I
shall recommend that the complaint, as to Houle, be dis-
missed. The General Counsel failed to prove Houle's in-
nocence.
4. Harold Frank
By a suspension notice dated February 14, 1980, Re-
spondent suspended Frank for a period of 15 days fol-
lowing his return to work because of conduct occurring
at or about 9 p.m. on February 12, 1980. This conduct,
7 While both witnesses placed Houle at the right-side valve, Paul testi-
fied that the dust cover was removed but his valve was not opened.
Tischer said he saw Houle open the valve by spinning it open. While it is
not clear that more than one oil transport may have been subject to
Houle's attention, I was impressed by Paul's testimony and demeanor
apart from Tischer's possibly inconsistent observations.
830
CONOCO, INC.
according to Respondent, was Frank's placing a nail or
similar device in the path of a rental car being used by
Respondent's security employees. Frank's action alleged-
ly caused the left front tire of the vehicle to go flat
almost immediately.
Respondent produced no witnesses in support of this
assertion.
Frank testified that although he was on the picket line
on February 12 and notwithstanding that a Pinkerton car
did pass through the line and got a flat tire as it was
leaving the refinery, the car left the refinery and re-
turned after being out on the highway. He denies having
seen the tire going flat and denies putting a nail in the
highway although he was with others on the picket line
at the time that the car exited. He said that he was at the
picket shack 15 minutes before the Pinkerton car exited
and admits that he heard air going out of the tire as the
car was returning from the highway. He testified that the
front tire on the driver's side was leaking air as it came
in and that he later saw the tire being changed. He did
not recall that anyone yelled at the Pinkerton car, as it
was leaving, that it was going to "get a flat."
There is a failure of proof by which Respondent sup-
ported its assertion that it had an honest belief that Frank
was responsible for or shared in this misconduct on the
picket line. There is no proof that he placed the nail in
the path of the car and there is no proof that he partici-
pated in that conduct even if another did it. The only
evidence is that the car was out on the highway and re-
turned with a leaking tire. I am not necessarily suggest-
ing that the tire became flat out on the highway rather
than as it was exiting the refinery. I conclude that there
is no proof linking Frank with any device by which the
flat tire occurred. Coronet Casuals Inc., 207 NLRB 304
(1973). I therefore conclude that Respondent has failed
to prove by a preponderance of the evidence that it had
an honest belief that Frank engaged in the alleged mis-
conduct. I therefore necessarily conclude that Respond-
ent violated Section 8(a)() of the Act in suspending
Harold Frank for 15 days because of the alleged con-
duct. National Aluminum, Division of National Steel Cor-
poration, supra.
5. Ronald Archambault
By its suspension notice dated March 24, 1980 (G.C.
Exh. 6), Respondent informed Archambault that he
would be suspended for 15 working days at the conclu-
sion of the strike because of misconduct on March 21,
1980, wherein he was alleged to have broken the "winter
front" and screen of a company vehicle leaving the refin-
ery. In addition, Archambault would be required to
repay $69.51 as restitution for the property damage.
Respondent's supervisor, Henry "Dave" Haggard, a
substitute driver at Respondent's refinery, testified that
on March 21, 1980, as he was driving a truck leaving the
refinery for the terminal, he stopped at the gate where
the pickets were standing. He testified that, while two
pickets stood in front of his truck for 15 minutes and
would not let him proceed, he heard a "popping sound"
and saw that one of the pickets wearing a blue hood was
in front of the truck. This picket said something to an-
other picket, ran to a car, and left. A Pinkerton guard
yelled on the radio that the picket had pulled the bug
screen and winter front loose from the front of the truck.
Haggard then drove to the terminal where it was discov-
ered that the winter front (a canvas covering device
placed on the radiator "bug screen") had been pulled
loose.
Archambault, employed by Respondent since 1969,
testified that he did not break the bug screen or the
winter front and denied seeing that it was broken. He
admits that he was present, touched the truck, and
admits further that he unsnapped two snaps on the
canvas winter front which held it to the bug screen. A
photograph admitted in evidence without the General
Counsel's objection (Resp. Exh. 2) showed damage to
the bug screen and winter front apparently consistent
with the aggravated quality of the damage as alleged by
Respondent rather than a mere unsnapping asserted in
Archambault's testimony. The photograph and Hag-
gard's testimony indicated that screws and snaps at-
tached to the bug screen had been pulled out and the
aluminum mounting and frame holding the bug screen
and winter front had been bent. According to Respond-
ent this represented $60.51 worth of damage.
The issue presented is not whether Archambault
touched the front of the truck and indeed unsnapped the
winter screen but rather whether Respondent had a
good-faith belief that he did somewhat more. In view of
the fact that the General Counsel did not object to Re-
spondent's introduction in evidence of the picture show-
ing extensive damage to the winter screen rather than
mere unsnapping of the winter front from the bug
screen, and in view of Respondent's witnesses' testimony
that the photograph was taken immediately after Hag-
gard arrived at the terminal after confronting Archam-
bault on the picket line, Respondent has satisfactorily
shown, on this record, that the damage to the winter
front and the bug screen was in accordance with its ver-
sion rather than Archambault's. There is no reason to be-
lieve on this record that Respondent was responsible for
aggravation of the damage to Respondent's property be-
tween the time that Archambault admittedly touched it
and the photograph. Thus there is no reason to disbe-
lieve the evidence of the photograph, which I credit. I
therefore conclude that Respondent had an honest belief
that Archambault engaged in the misconduct alleged in
its March 24 suspension notice; and that the conduct en-
gaged in by Archambault was not a minor piece of im-
plusive behavior, N.LR.B. v. Thor Power Tool Company,
351 F.2d 584, 587 (7th Cir. 1965), but was part of an at-
tempt to engage in harassing conduct. In this situation,
Archambault, on the record before me, although en-
gaged in concerted activities otherwise under the protec-
tion of the Act, Groendyke Transport, Inc v. N.LR.B.,
530 F.2d 137 (10th Cir. 1976), overstepped the mark and
must suffer the consequences. The 15-day suspension and
the demand for restitution do not smack of ulterior mo-
tives. I express no opinion here, similar to the case of
Glowacki and the alleged damage to the truck tire, re-
garding the amount of damages which Respondent states
it will seek to collect from Archambault because of the
damage to the bug screen and winter front. I recommend
831
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only that the Board find, as I do, that Respondent had an
honest belief that Archambault caused the above
damage, that the General Counsel failed to prove his in-
nocence, and that the act was not so trivial as to merit
condonation as an exhibition of animal spirits. I therefore
recommend that the consolidated complaint be dismissed
with regard to Archambault.
Case 18-CA-6665: Alleged Violation of Section
8(a)(1) and (3)
The Discontinuance of Sick Leave Payments to
Patricia A. Fransen
The Fransen matter was tried essentially pursuant to
stipulated facts.
Respondent admits that Patricia A. Fransen was its
employee and that on or about the commencement of the
strike, January 8, 1980, and continuing until on or about
February 22, 1980, Respondent suspended and discontin-
ued her sick leave payments which were being made
pursuant to its Comprehensive Disability Income Plan.
Respondent denied that it engaged in that conduct be-
cause Fransen was engaged in a strike and asserted that
it did so without ascertaining whether she had actively
participated in or joined in the strike.
It was stipulated that Fransen was an employee cov-
ered by the above collective-bargaining agreement's
Comprehensive Disability Income Plan (CDIP); that the
employees covered by the plan were production and
maintenance employees; that as of January 1, 1980, Fran-
sen was employed in the production and maintenance
unit as a full-time employee; that she had been continual-
ly employed by Respondent since 1974; that an economic
strike commenced on January 8, 1980, at 4:30 p.m. and
ended at the close of April 1, 1980, with employees re-
turning to work on April 2, 1980; that Fransen was not
able to work for medical reasons commencing on Janu-
ary 3, 1980, but was authorized by her physician to
return to work commencing on March 25, 1980; that Re-
spondent paid her sick leave pay under the terms of
CDIP from the period January 3-8, 1980; that commenc-
ing with the beginning of the strike on January 8, 1980,
Fransen was confined to a hospital; that commencing
January 8, 1980, the start of the strike, Respondent dis-
continued sick leave payments to Fransen and did not
pay her additional sick leave payments commencing Jan-
uary 9 through February 22, 1980; that commencing
February 22, 1980, the Charging Party, Fransen, actively
participated in the strike by picketing for the Union; that
Fransen, between January 8 and February 22, 1980, did
not inform Respondent either that she supported the
strike or that she did not support the strike; that when
Respondent discontinued paying her sick leave payments
on January 8, 1980, it knew that she was under a physi-
cian's care; that no employee represented by the Union
ever worked during a union strike; that Fransen support-
ed the strike by the production and maintenance employ-
ees in a union strike occurring in 1975; that no union rep-
resentative made a protest to Respondent that Fransen
was unable to work and was not a participant in the
strike; and that, upon her return from the strike, Fransen
was paid at the rate of pay specified in the strike settle-
ment.
Article III of the 1979-81 collective-bargaining agree-
ment (G.C. Exh. 2) in effect at the time of the January 8,
1980,8 strike contains a union-security clause requiring
maintenance of membership for existing employees who
are union members and also union membership after 30
days of employment or 30 days after the effective date of
the agreement, whichever was the later. Article 16(D) of
the agreement provides, as one of the company benefits,
for the Comprehensive Disability Income Plan. A de-
scription of the plan is found in Respondent's publication
of a description of the plan (G.C. Exh. 4). Under para-
graph therein entitled "Denial of Benefits," subsection 4
states:
If benefits are being paid prior to a strike or layoff,
such benefits will cease for the duration of such
strike or layoff. No benefits will be paid during the
time you are on strike or layoff.
Similarly, in a January 15, 1980, Respondent letter
(G.C. Exh. 5) to its striking employees, Respondent re-
minded them, with regard to the plan, that: "Coverage
under the Comprehensive Disability Income Plan is dis-
continued for employees on strike."
The Board, in E. L. Wiegand Division, Emerson Electric
Co., 246 NLRB 1143 (1979) (Member Jenkins dissenting
in part; Member Penello dissenting), dealing with the
cessation of sick leave benefits to an employee who had
been receiving them prior to the initiation of a strike,
overruled Southwestern Electric Power Company, 216
NLRB 522 (1975), and, adopting the rationale suggested
by Chairman Fanning (dissenting in Southwestern Electric
Power Co., supra), held that employees have a Section 7
right to refrain from declaring their position on the strike
to their employer while they are medically excused.9 As
a consequence of this conclusion that Board announced
as its rule [E. L Wiegand Division, Emerson Electric Co.,
supra, 246 NLRB 1143-44]:
[A]n employer may no longer require its disabled
employees to disavow strike action during their sick
leave in order to receive disability benefits....
Accordingly, we now hold that for an employer
to be justified in terminating any disability benefits
to employees who are unable to work at the start of
a strike it must show that it has acquired informa-
tion which indicates that the employee whose bene-
The strike, during the term of the agreement containing a no-strike
provision, followed disagreement on terms specified in a "re-opener" in
art. 22.
9 Respondent argues that the Board imprudently overruled Southwest-
ern Electric Power Co., supra. That argument must be addressed to the
Board rather than to me. Where Respondent argues that Emerson Electric
invites employee fraud (employees on the eve of a strike will become
"disabled" and receive unmerited benefits since Respondent cannot rea-
sonably investigate the "illnesses" of such employees), it seems that any
Sec. 7 right-or any other right-may be subject to fraudulent abuse.
832
CONOCO, INC.
fits are to be terminated has affirmatively acted to
show public support for the strike.
The Board's rationale for this rule is that: "To allow
the termination of such benefits to certain employees as a
result solely of the strike activities of others is to penal-
ize the employees who have not yet acted in support of
the strike." This rationale is analogized to the case of
picket line misconduct. The Board, in this regard, in its
footnote 3 [E. L. Wiegand Division, supra] states:
Where sanctions are imposed by an employer for
picket line misconduct, we have held that, before an
employer may rely on an honest belief that a strik-
ing employee engaged in such misconduct, it must
obtain proof that the specific employee engaged
therein, and may not rely on the conduct of other
strike participants. Coronet Casuals; Inc., 207 NLRB
304, 305, (1973). We find that the necessity for a
showing of such individual participation is likewise
applicable where the conduct involved concerns the
initial engagement in strike activity.
Although in the instant case, unlike Emerson Electric Co.,
supra, no union representative told Respondent that the
Charging Party was unable to work and was not a par-
ticipant in the strike, Respondent here stipulated that it
paid her disability benefits commencing 5 days before the
January strike; knew that she was confined to a hospital
at the time the strike began; and discontinued the sick
leave payments with the commencement of the strike
notwithstanding the fact that Fransen did not inform Re-
spondent that she supported the strike or indeed that she
did not support the strike. The record, therefore, is
barren of any showing that Respondent, as required by
Emerson Electric Co., "acquired information which indi-
cates that the employees whose benefits are to be termi-
nated, has affirmatively acted to show public support for
the strike. Of course, commencing February 22, 1980,
when the Charging Party began actively to participate in
the strike by picketing for the Union, Respondent was in
receipt of such evidence and, under Emerson Electric,
could lawfully discontinue the benefits. It is clear, in
short, that Respondent terminated the disability benefits
(which were being paid to the Charging Party out of a
disability arising before the commencement of the strike)
without information showing that she affirmatively sup-
ported the strike. 1O As a prima facie matter, therefore, in
view of the Emerson Electric rule, Respondent violated
Section 8(a)() and (3) of the Act thereby.
Respondent defends on the ground that whatever the
prima facie violation of Section 8 (aXl) and (3), Respond-
ent and the Union, by contract, permitted Respondent to
take the alleged unlawful action. Thus article 16, section
1(D), specifically makes the Comprehensive Disability
Income Plan a company benefit to production and main-
tenance employees of which the Charging Party was one
(G.C. Exh. 2, p. 35); and the plan itself (G.C. Exh. 4)
specifically limits payment of disability benefits: "If bene-
fits are being paid prior to a strike or layoff, such bene-
'0 I reject Respondent's contention (br., p. 6) that Fransen supported
the 1980 strike because she supported the 1975 strike.
fits will cease for the duration of such strike or layoff.
No benefits will be paid during the time you are on
strike or layoff."
For purposes of this Decision, it may be assumed, ar-
guendo, that the above limitation in the General Coun-
sel's Exhibit 4, subsection 4, on the payment of benefits
was successfully incorporated by reference into the body
of the collective-bargaining agreement (as conceded by
Respondent, br., p. 7); that the Union agreed to the limi-
tation proscribed in the above subsection; that such an
agreement might constitute a contractual "waiver" by
the Union against itself and all employees in the produc-
tion and maintenance unit whom it represents from as-
serting rights under Emerson Electric; and that such
waiver of sick pay benefits would be lawful because the
intent of such a waiver would be to obviate the Employ-
er's responsibility of perhaps inquiring into, or at least
discovering, each employee's desires and intent with
regard to the support of the strike as required by Emer-
son Electric, and, at the same time, would eliminate the
responsibility for any such an inquiry stepping over the
line into unlawful interrogation with regard to the em-
ployees' sentiments concerning support of the strike.
Compare Erie Resistor Corp., 132 NLRB 621 (1961), en-
forcement denied 303 F.2d 359 (3d Cir. 1962), revised
and remanded 373 U.S. 221 (1963), and N.LR.B. v. Mag-
navox Company of Tennessee, 415 U.S. 322 (1974). In
short, however, even if Respondent attempted to thus
secure a waiver of the rights of employees under Emer-
son Electric Co., supra, and even if such attempted waiver
were lawful, the present language of the denial of bene-
fits in case of a strike, at best, is so ambiguous as to pre-
vent the inference that, by any such "waiver," Respond-
ent excluded Fransen from the payment of disability
benefits under the exclusion in subsection four. Indeed,
even in its January 15, 1980, communication to its strik-
ing employees, Respondent noted the discontinuance of
benefits under the plan "for employees on strike."
Thus, for instance while there would appear to be no
difficulty in the meaning of the first sentence in the
above subparagraph four describing cessation of benefits
under the disability plan ("If benefits are being paid prior
to the strike or layoff, such benefits will cease for the du-
ration of such strike or layoff") because the subject
matter of the sentence deals with the cessation of bene-
fits, yet, the second sentence of subparagraph four ("No
benefits will be paid during the time you are on strike or
layoff") deals with the question of the class of persons
who will be excluded from benefits. The second sen-
tence, as does the above January 15 letter to striking em-
ployees, discloses that the agreed-upon restriction on the
payments of benefits is, inter alia, only to those employees
who are on strike. The hospitalized Fransen, in the period
at issue, was not "on strike" and the contractual provi-
sion does not appear to relate to her. t
'' A contract waiver of Fransen's Emerson Electric rights would have
to be "clear and unmistakable," Daniel Construction Co, 239 NLRB 1335,
fn. 4 (1979). Any ambiguity in any such waiver must be construed against
the promulgator, N.LR.B. v. Harold Miller. et al., 341 F.2d 870, 874 (2d
Cir. 1965); Farah Manufacturing Company, 187 NLRB 601 (1970). Cf.
Gale Products. Div. of Outboard Marine Corp., 142 NLRB 1246 (1963).
833
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It having been stipulated that the Charging Party did
not join the picket line and therefore was not affirmative-
ly acting to publicly support the strike until February 22,
1980, and that she otherwise met all conditions for the
continued payment of disability benefits, and there ap-
pearing no other evidence, under Emerson Electric Co.,
supra, that Respondent "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" prior to February 22, 1980, it follows that Re-
spondent failed to satisfy the requirements of Emerson
Electric and therefore violated Section 8(aXl) and (3) of
the Act by discontinuing the disability benefits com-
menced on or about January 3 which discontinuance was
for the period January 8 through February 22, 1980.
Thus (A) under Emerson Electric, supra, the discontinu-
ance of benefits violated Section 8(a)(1) and (3); and (B)
the Union did not, by contract, waive Fransen's rights to
benefits because it and her co-employees engaged in a
strike.
It having been stipulated that the discontinuance of
disability benefits commenced January 8, 1980, I shall
recommend to the Board that Respondent pay to the
Charging Party the disability benefits for the period Jan-
uary 9 through February 21, 1980 (the period until she
appeared on the picket line), notwithstanding that her
physician, according to the stipulation, certified that she
was able to return to work no earlier than March 25,
1980. Cf. Member Jenkins dissenting in Emerson Electric
on this point.
Upon the foregoing findings of fact, and upon the
entire record herein considered as a whole, I make the
following:
CONCLUSIONS OF LAW
1. Respondent, Conoco, Inc., is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Oil, Chemical and Atomic Workers International
Workers Union, AFL-CIO, Local 6-659, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By disciplining Tony Hackensmith, Douglas Utech,
Joel Rabideaux, and Harold Frank, all of whom were
Respondent's lawfully striking employees, without proof
of their engaging in disqualifying strike misconduct, Re-
spondent interfered with, restrained, and coerced its em-
ployees in the exercise of their Section 7 rights and
thereby violated Section 8(aXl) of the Act.' 2
4. By withholding, from January 9 through February
21, 1980, inclusive, payment to its employee, Patricia A.
Fransen, of disability benefits under its Comprehensive
Disability Income Plan, because other of its employees
engaged in a lawful strike, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(aXl) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
Is It is unnecessary, as in N.LR.B. v. Burnup d Sims. supra, 379 U.S.
21, 22-23, to reach or decide whether Respondent's conduct was also
violative of Sec. 8(aX3) of the Act. Gold Kist. Inc., 245 NLRB 1095.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(aXl) and
(3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative actions designed
to effectuate the policies of the Act.
It having been found that Respondent unlawfully sus-
pended Tony Hackensmith and Harold Frank for 15
days, and served unlawful warning notices on Douglas
Utech and Joel Rabideaux, I shall recommend that Re-
spondent make the suspended employees whole, without
loss of seniority or other rights or privileges, for any loss
of earnings each of them may have suffered by virtue of
the unlawful suspension by paying to each of them, in
addition to contributions to fringe benefit funds, an
amount equal to that which each would have earned
from the date of suspension to the date of reinstatement
by Respondent. Such net backpay will be computed in
the accordance with the Board's formula set forth in F.
W. Woolworth Company, 90 NLRB 289 (1950), with in-
terest thereon to be computed as prescribed in Florida
Steel Corporation, 231 NLRB 651 (1977).13 In addition, I
shall recommend to the Board that Respondent be re-
quired to expunge from its records all suspension and
warning notices relating to the above employees against
whom Respondent engaged in acts of unlawful interfer-
ence, restraint, and coercion.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER' 4
The Respondent, Conoco, Inc., Wrenshall, Minnesota,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Suspending, serving warning notices on, disciplin-
ing, or otherwise interfering with, restraining, or coerc-
ing striking employees who do not engage in disqualify-
ing strike misconduct.
(b) Withholding payments of disability benefits from,
or otherwise discriminating against, employees in the ex-
ercise of their rights to engage in or refrain from engag-
ing in protected concerted or union activities, including
the right to strike, thereby discouraging membership in
Oil, Chemical and Atomic Workers International Union,
AFL-CIO, Local 6-659, or any other labor organization.
(c) 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 actions deemed nec-
essary to effectuate the policies of the Act:
(a) Make whole employees Tony Hackensmith and
Harold Frank, by paying to each, as described in "The
Remedy," the net backpay due them by virtue of their
I' See, generally, Isis Plumbing & Heating Co.a, 138 NLRB 716 (1962).
14 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
findings, 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 for all purposes
834
CONOCO, INC.
unlawful suspensions, with interest, pursuant to Board
law, as well as reinstituting their seniority and other
rights of which they were deprived by virtue of Re-
spondent's unlawful acts against them.
(b) Make whole employee Patricia A. Fransen by
paying to her, with interest, the disability benefits pursu-
ant to the Comprehensive Disability Income Plan which
was due to her during the period from and including
January 9 through February 21, 1980.
(c) Expunge from all Respondent's records all suspen-
sion or warning notices, and any references thereto relat-
ing to the January-April 1980 strike activities of Tony
Hackensmith, Harold Frank, Douglas Utech, and Joel
Rabideaux.
(d) Preserve and make available to the Board or its
agents, upon request, all records necessary to analyze the
amount due for the effectuation of this remedial Order.
(e) Post at Respondent's refinery and place of business
in Wrenshall, Minnesota, copies of the attached notice
marked "Appendix."1' Copies of said notice, on forms
provided by the Regional Director for Region 18, after
being duly signed by its representatives, shall be posted
by Respondent 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 ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that all other complaint alle-
gations of Respondent's unfair labor practices be dis-
missed.
1' 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 Bord shall read Posted Purnu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
835