E.L. Wiegand Division

National Labor Relations Board - Board Decisions

Dec 19, 1979

246 N.L.R.B. 1143 (N.L.R.B. 1979)

E. L. WIEGAND DIVISION
E. L. Wiegand Division, Emerson Electric Co. and In-
ternational Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
Local 1020. Case 6-CA- 10781
December 19, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS,
PENELLO, AND TRUESDALE
On March 16, 1979, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
is supporting brief, and a supplemental brief, and the
General Counsel filed an answer to Respondent's sup-
plemental 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.
We adopt the Administrative Law Judge's conclu-
sion that Respondent violated Section 8(a)(1) and (3)
of the Act by terminating sick and accident benefits,
called "S and A" benefits, to employees who were
physically unable to work on and after November 1,
1977,2 because other employees actively employed at
Respondent's facility went out on strike. In support of
this conclusion, we emphasize the fact that Respon-
dent's declaration that these benefits would not be
paid to employees who would otherwise receive them
came at a time when a strike at its facility was immi-
nent, but before there was any showing of how wide-
spread the strike would be, and before Respondent
was aware that any of the employees who were un-
able to work ratified or actively supported the strike.
Furthermore, Respondent terminated these benefits
immediately upon the commencement of the strike
despite a union representative's clear protest that the
individuals who were unable to work were not par-
ticipants in any strike. In these circumstances, we
agree with the Administrative Law Judge that Re-
spondent's announcement of the termination of these
benefits was intended to coerce and restrain the pro-
tected union activity with respect to the strike, by
imposing a sanction against certain unit employees if
others in the unit engaged in strike activity.
In reaching this conclusion, however, we need not
consider whether the Administrative Law Judge ade-
quately distinguished Southwestern Electrical Power
I The Employer's request for oral argument is hereby denied. as the record
and bnefs adequately present the issues and the positions of the parties
2 Unless otherwise indicated all dates are 1977.
Company, 216 NLRB 522 (1975), because, on further
consideration, we find then-Member Fanning's dis-
sent therein persuasive. In that case the majority held
that an employer may reasonably believe that em-
ployees on sick leave before a strike support it solely
on the basis that the strike is effective and the em-
ployees are union members, despite the fact that the
employer has no way of knowing with certainty
whether the employees on sick leave do or do not
support the strike activities of their fellow employees.
The majority therefore concluded that the employer
acted lawfully by terminating sick leave benefits to
employees prior to any showing that they affirma-
tively supported the strike. In rejecting this rationale,
we conclude that an employer may not rely on such
speculative grounds tojustify the termination of exist-
ing disability benefits to employees which, as found
here by the Administrative Law Judge, had accrued
to them as a result of past work performed. We agree
with the language of that dissent, which states:
In short, these employees had a Section 7 right
to refrain from declaring their position on this
strike while they were medically excused. lid. at
523.]
Consequently, an employer may no longer require its
disabled employees to disavow strike action during
their sick leave in order to receive disability benefits.
To allow the termination of such benefits to certain
employees as a result solely of the strike activities of
others is to penalize the employees who have not yet
acted in support of the strike.3 To the extent that
Southwestern Electric Power Company, supra, is incon-
sistent with our decision herein, it is hereby overruled.
However, while disabled employees need not affir-
matively disavow the strike action, neither can they
participate in the strike without running the risk of
forfeiting benefits prospectively.4 In this regard, the
Administrative Law Judge has incorrectly concluded
that Respondent may not rely on evidence that some
of its employees who had been receiving disability
benefits prior to the strike were later seen participat-
ing in the strike by their appearance on the picket
line.' Although a showing of participation in the
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
stnking 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 s like-
wise applicable where the conduct involved concerns the initial engagement
in strike activity.
4 The employees' actions in support of the strike, however. may not be
used to deprive them of any benefits for time away from work prior to their
supportive action.
5 The record shows that at least the following named disabled employees
were present on the picket line or among the strikers during the course of the
strinke: Josheph Bartunek. Bernard Cases. Edward Chambers. Tom Compta-
ron. Charles Evins. Roger Fletcher. and Michael Suley. While the evidence
also shows that Richard Conner and Ra) Robinson were ohsersed on the
(Continued)
246 NLRB No. 162
143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike does not justify post hoc Respondent's initial
termination of benefits to these employees,6 we never-
theless do not consider participation in the strike to
be protected expressions of opinion, as found by the
Administrative Law Judge. For all practical pur-
poses, any employee, disabled or sound, who affirma-
tively demonstrates his support of the strike by pick-
eting or otherwise showing public support for the
strike, has enmeshed himself in the ongoing strike ac-
tivity to such an extent as to terminate his right to
continued disability benefits.7 This result represents a
fair accommodation between the rights of employees
and the interests of employers. For, while employees
have the protected right to receive disability benefits
without disavowing the strike, an employer should
not be obligated to finance a strike against itself, as
would be the case if we ordered Respondent to pay
such benefits for the period during which the disabled
individuals participated in strike activity.
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 information
which indicates that the employee whose benefits are
to be terminated has affirmatively acted to show pub-
lic support for the strike. Barring such affirmative ac-
tion, of course, we agree with the Administrative Law
Judge that the disabled employees found herein to
have been discriminated against are entitled to S and
A benefits for the full length of their sickness or dis-
ability.8
While the complaint, as amended at the hearing,
includes the names of 23 individuals who were af-
fected by the termination of S and A benefits, the
Administrative Law Judge referred to the existence of
only 22 such employees in his Decision without spe-
cifically naming them. We find this omission consti-
tutes inadvertent error, even in the absence of an ex-
picket line and that they were disabled at the commencement of the strike,
additional evidence shows that their appearance on the picket line occurred
after their recovery from disability.
6 See fn. 4, above.
See Chairman Fanning's dissent in Southwestern Electric, supra, which
also recognizes a limitation on the remedy for sick employees who have
supported the strike. We find that such affirmative support for the Union's
strike activities was also shown by evidence that Joseph Lawrence, during
the period of his disability, worked in the Union's office answering telephone
calls.
I While Member Jenkins agrees with most of our Decision, he would fur-
ther order Respondent to provide disability benefits for the period during
which some of the disabled employees appeared at the picket line or showed
other public support for the strike. Member Jenkins opines that the picketing
bh the disabled employees probably did not demonstrate solidarity in sup-
port of the strike. Rather, according to Member Jenkins, the picketing and
other supportive action was more likely in protest over Respondent's with-
drawal of benefits. We find no evidence from which to draw any such infer-
ence. We will not engage in such warrantless speculation when, from all
appearances, the supportive actions by the disabled employees including
that of Joseph Lawrence, who assisted the Union in its office during the
strike speak for themselves.
ception thereto, particularly as all such employees
were treated identically by Respondent, and the Ad-
ministrative Law Judge concluded that Respondent
had violated Section 8(a)(1) and (3) with respect to all
of the employees named in the complaint and pro-
vided in his recommended Order that all of them be
made whole.
ORDER
Pursuant to Secton 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, E. L.
Wiegand Division, Emerson Electric Co., Pittsburgh,
Pennsylvania, its officers, agents, successors, and as-
signs, shall take the action set forth in the said recom-
mended Order, as so modified:
I. Substitute the following for paragraph 2(a):
"(a) Make whole the employees listed in the com-
plaint by paying to each whatever sick and accident
benefits were due them during the period November
1, 1977, to February 28, 1978, with interest, provided
that no such payment shall be due for the periods
subsequent to any employee's action participation in
strike activity or public support therefor."
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBERS JENKINS, dissenting in part:
While I agree with the majority's finding that Re-
spondent unlawfully and discriminatorily terminated
the S and A benefits due employees subsequent to the
commencement of the strike, and additionally agree
that Southwestern Electric Power Company, supra
should be overruled, the basis for my conclusion that
a violation has been established here departs some-
what from the majority view. Furthermore, regardless
of the basis for the finding of a violation, the remedy
established by the majority's failure to order Respon-
dent to make whole employees for all disability pay-
ments unlawfully withheld unduly penalizes the vic-
tims of Respondent's discriminatory retaliation.
Respondent's disability plan operates as a form of
self-insurance whereby employees, who as a result of
sickness or accident are unable to work, are provided
with 60 percent of their income for periods ranging
from I to 39 weeks, depending on their seniority. As
the extent of this benefit is directly a function of em-
ployee seniority, it is apparent that the benefit is a
form of compensation for past services and is fully
vested upon the commencement of the employee's ac-
tual disability. Consequently, I can conceive of no
event other than recovery which would terminate Re-
spondent's fully vested obligation to continue such
payments for all employees on disability prior to the
1144
E. L. WIEGAND DIVISION
strike.9 To this extent, I would find that employees
have the same right to accrued disability benefits as
they have to accrued vacation benefits.' ° In either
case, a strike subsequent to the accrual of these bene-
fits does not serve to deprive the employees of these
benefits,.
My colleagues in the majority, however, conclude
that disabled employees who show any form of public
support for the strike, such as visiting the picket line,
have enmeshed themselves in the ongoing strike ac-
tivity to such an extent so as to terminate the right to
continued disability payments. This conclusion is ap-
parently premised on the theory that such an em-
ployee has affirmatively indicated that he would have
withheld his services had he been physically able to
have worked. However, the prerequisite for the indi-
vidual employee's entitlement to disability benefits,
that he not be able to work due to sickness or acci-
dent, necessarily places him in circumstances at vari-
ance with that facing the remaining active employees.
The latter, due to their physical health, are in the
position of individually deciding at the commence-
ment of the strike whether to continue providing ser-
vices to Respondent. Others on disability, however,
due to circumstances beyond their control, are never
given this option to work or not.'2 The fact that a
disabled employee, through some manner of partici-
pation in the picketing, may have expressed a certain
degree of support therefor is insufficient to render him
a striker, due to the inherent inability of the disabled
employee to do that act which is the sine qua non of
striker status: the voluntary withholding of services
from the employer in support of a labor dispute. This
Board has consistently refused to find that the cate-
gory of picket is identical to that of striker or that
picketing is mutually inconsistent with otherwise
being an active employee." Given that an employee
generally may picket an employer without prejudice
to his rights as an otherwise active employee, so too
I Because the disability benefits are applicable only when the particular
employee is unable to work, the benefit is obviously not conditioned on
continued provision of services to Respondent.
01 I note, however, that the point of accrual of vacation benefits typically is
different from the point of accrual of disability benefits. Although both usu-
ally require the completion of specified periods of employment, disability
benefits are additionally contingent on a second event, viz, the actual disabil-
ity.
It See ,NL.R.B v. Great Dane Trailers. Inc.. 388 U.S. 26 (1967); Knuth
Bros.. Inc.. 229 NLRB 1204 (1977); Elmac Corporation. 225 NLRB 1188
(1976); Borden. Inc. Borden Chemical Division. 235 NLRB 982 (1978), en-
forcement denied 600 F.2d 313 (st Cir. 1979).
12 The degree of physical recovery which would enable an employee to
participate in picketing to some extent is not tantamount to full recovery
which would revise the employee's option to return to work, particularl)
production positions of Respondent's electncal heater manufacturing plant.
11 Edir. nc. dbla Wolhes, 159 NLRB 686. 693 695 (1966); Sears. Roe-
buck & Co., 168 NLRB 955 (1967). Vincent F Lang and Wilma Lang db,/a
La Mesa Convalescent Hospital. 217 NLRB 182 (1975): Shoppers Drug Mart.
Inc.. 226 NLRB 901, 910 (1976).
may a disabled employee engage in picketing without
prejudice to his employment rights as a disabled em-
ployee. Consequently, the presence of disabled em-
ployees on the picket line is insufficient to establish
that they are strikers or should be treated as such,
particularly as this choice was never open to them.'4
Whatever validity there is in cutting off disability
benefits at the time the disabled employee publicly
supports a strike vanishes here because of Respon-
dent's prior commission of an unfair labor practice
aimed specifically against these employees on disabil-
ity at the start of the strike. The majority ignores this
misconduct by the Respondent. Although public par-
tication in a strike may express the employee's com-
plete solidarity with those who have voluntarily cho-
sen to strike, this is hardly the motive most readily
extracted from the events here. A more likely expla-
nation is that his strike participation was a protest
over the specific unlawful withdrawal of benefits then
due him and was unrelated to the economic motives
of the other striking employee.' 5 While a disabled em-
ployee who appeared on the picket line may have
been guided by other considerations," further specu-
lation as to the disabled employee's actual motivation
for any general strike activity is unwarranted. In
Abilities and Goodwill, Inc., 241 NLRB 27 (1979), we
stated that where an employer unlawfully discharges
a striker we will not indulge in presumption that the
employee's subsequent participation in the strike is
unrelated to the employer's unlawful conduct so as to
limit the remedy. ' The majority, however, uses the
exact opposite presumption and holds that, regardless
of the unfair labor practices, any subsequent partici-
pation in picketing is in full support of the strike.
Accordingly, they rule that a disabled employee who
seeks to protest the unlawful withholding of his bene-
fits by appearing on the picket line instantly loses any
further right to those benefits.'8 Such a limitation on
'4 The majonty's argument, at its limits, consistently could find that a
healthy employee who pickets an employer during off-duty hours has
thereby relinguished all nght to further benefits stemming from his employ-
ment relation. The only additional factor present here is that the disabled
employee has nothing but off-duty hours.
'' The present stnke occurred upon the termination of a bargaining agree-
ment, and the General Counsel does not allege that the strike was other than
economic n origin.
i6 The evidence here shows that. after Respondent terrmnated all disability
benefits on November I. the Union did not automatically provide disabled
employees with strike benefits, due to its initial uniform application of the
rule that no strike benefits would be paid unless the individual participated
in the strike. The Union maintained this position until December 12. alter
which it waived this requirement and began paying strike benefits to all
disabled employees, regardless of heir participation in the strike. In view of
the economic hardship faced by these employees as a result of Respondent's
unlawful termination of their benefits, it is apparent that these employees
may not have had a free choice to refrain from engaging in stnke activity
and may have been economically compelled to do so just to qualifl for some
form of income.
" Id at 28.
1145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the remedy penalizes disabled employees who protest
unlawful conduct directed at them and serves as a
windfall to Respondent who is thereby allowed to
profit from his wrongdoing. Contrary to the major-
ity's claim, ordering a full remedy would not force an
employer to finance strike activity against it, for an
employer is not required to compensate employees
for services withheld due to strike activity.'9
For the reasons stated above, I would not find that
the presence of disabled employees on the picket line
deprives them of their disability benefits, and I there-
fore dissent from the majority's failure to order the
full payment of all such unlawfully withheld benefits.
MEMBER PENELLO, dissenting:
I find that the position advanced by the majority of
the Board in Southwestern Electric Power Company,
216 NLRB 522 (1978), in which I participated, pres-
ents a correct analysis of the issues involved in deter-
mining the legality of the termination of disability
benefits during strikes. Accordingly, I would not
overrule that decision, and I would dismiss the pre-
sent complaint.
8The majority's finding that the disabled employee who has been seen
among strikers has "joined" the stnke places him at an additional disadvan-
tage of not being able to get out of the situation by requesting reinstatement
to his former position. Thus, unlike the strikers, he is in no position to make
a good-faith offer to return to work.
1 See Edir, Inc., d/b/a Wolfie's, supra, and Sears, Roebuck & Co., supra.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all em-
ployees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity ex-
cept to the extent that the employees' bargain-
ing representative and employer have a collec-
tive-bargaining agreement which imposes a
lawful requirement that employees become
union members.
WE WILL NOT withhold payment of sick and
accident benefits payable to each of the 23 em-
ployees named in the complaint in this proceed-
ing throughout the period November 1, 1977, to
February 28, 1978, or otherwise discriminate
against employees, because of any union activity
by any of our employees, including strikes.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL make whole all the named 23 em-
ployees for sick and accident benefit payments
due them from the time it was withheld, until
their recovery or their active participation in
strike activity, whichever is earlier, with interest.
E. L. WIEGAND DIVISION, EMERSON ELEC-
TRIC CO.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: A hearing
in this proceeding was held in Pittsburgh, Pennsylvania, on
January 10 and 11, 1979, on complaint of the General
Counsel against E. L. Wiegand Division, Emerson Electric
Co., here called Respondent or the Company. The com-
plaint issued on August 31, 1978, based on a charge filed on
December 14, 1977, by International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America, Local 1020, here called the Union. The issue pre-
sented is a plain and single one: May an employer discon-
tinue sick and accident benefits being paid to employees
who are in fact sick and therefore unable to work, merely
because the rest of the employees choose to engage in an
economic strike?
Upon the entire record and from my observation of the
witnesses I make the following:'
FINDINGS OF FACI
I. THE BUSINESS OF RESPONDENT
Respondent, a Missouri corporation, is engaged in the
manufacture and nonretail sale of electrical surface units
for appliances and industrial electrical heaters, and main-
tains one place of business in Pittsburgh, Pennsylvania.
During the 12-month period preceding issuance of the com-
plaint, for use at this location Respondent purchased goods
and materials valued in excess of $50,000 directly from sup-
pliers located outside the Commonwealth of Pennsylvania,
and shipped goods from this one location valued in excess
of $50,000 directly to purchasers located outside the Com-
monwealth. I find that Respondent is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOIVED
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
A motion by Respondent to correct certain inadvertent typographical
errors in the transcript is hereby granted.
1146
E. L. WIEGAND DIVISION
Ill. tlE UNFAIR LABOR PRA('IICES
A. The Case in Brief
The Union has for years represented the approximately
1,100 employees at this one Pittsburgh plant of Respondent.
The parties' last collective-bargaining contract by its terms
expired on October 31, 1977. Unable to come to terms with
the Employer during a number of negotiating meetings be-
fore that date, the Union called a strike beginning precisely
on November , the moment the contract expired. Every
man then at work joined the strike-i.e., personally decided
to withhold his services in concert with his fellow workers.
The plant was closed completely from that day to February
28, 1978, when, agreement having been reached between
company and union, everybody who was well enough to
work, came back.
The day the strike started, 22 employees were physically
unable to work, sick, or otherwise disabled for one reason
or another. Some were at home, some were in the hospital,
and some perhaps even able to walk outside, but, as all
parties to the proceeding precisely stipulated at the hearing,
each and everyone was that day "sick," and unable to work.
Each of these men was also that day-or at least on Octo-
ber 31, the last before the strike-receiving from Respon-
dent what was termed "S and A" benefits. This was a
weekly amount in cash, the period for which he was to
receive such benefits varying with each man's length of ser-
vice with the Company, as provided in the collective-bar-
gaining agreement, both that which expired at that time
and the 3-year contract which had preceded it.
At their last meeting on October 31, the union represen-
tatives, with talk of strike in the air, told the company
agents that because the 22 sick men "were not participants
of any forthcoming strike," the Company would be obli-
gated to continue the payments. The Company's response
was that the payments would be cut off "if we went out on
strike." In the words of Leonard McElhinney, Respondent's
vice president of industrial relations, at the hearing: "The
Company said they were not obligated to pay strikers to
support the strike .... " Then, as well as a week later, the
Union strongly protested, and threatened to file charges,
but Respondent held firm to its stated position throughout
the strike. All S and A payments were discontinued as of
November 1.
During the 4-month period of the strike-November I to
February 28-some of the 22 received medical certification
of their recovery and their qualification for work, and for-
warded the usual appropriate papers to the personnel office.
Others were still disabled on February 28, some as continu-
ing hospital patients. The day after the strike ended, Re-
spondent resumed paying the S and A benefits to all those
of the 22 still sick and disabled.
The complaint alleges that withholding of these S and A
benefits to those employees who continued in disabled sta-
tus which had started before the strike was a coercive act, in
violation of Section 8(a)(3) and (I) of the statute. It is called
an unlawful restraint upon the rights of all the employees to
engage in protected concerted activities. There is no ques-
tion but that the strike was purely economic and absolutely
legal under the law.
In defense a number of conclusionar\ assertions are ad-
vanced on behalf of Respondent. If a single summary state-
ment for the variously phrased assertions is possible, it is
that the 22 disabled persons were strikers, or at least in the
position where Respondent had a right to treat them as it
does strikers. Of course, the argument goes, no employer is
obligated to help finance a strike aimed at destroying its
economic viability. To make the defense sound more con-
vincing, Respondent passingly calls the S and A benefits
wages, and then asks: How can an employer be faulted for
not paying wages to an employee who chooses to strike
instead of to work for his pay?
There is practically no dispute as to the facts. It is, all
told, a matter of reducing complex and oblique phraseology
into plain English, and answering the very simple question
posed by the complaint.
B. Further Evidence, Analysis, and Conclusion
That Respondent held back this financial benefit from
the 22 employees because of the strike activity by the com-
plaint of over 1,000 employees as a whole could not be
clearer. Its agent told the Union, on the last day of the old
contract, "If you strike, those people lose the money."
McElhinney was not telling the sick men at home, or in the
hospital, that if they took such concerted action against
their employer they would pay a price. There can be no
question but that the very purpose of the planned hurt to
the sick men was to restrain, to coerce, the perfectly pro-
tected union activity intended by the employee group. The
discrimination against the 22-now you have the money,
now you don't-fitted squarely into the language of Section
8(a)(3). On its face it was an unfair labor practice, and I so
find.
1. If it was an unfair labor practice for Respondent to
have discontinued this payment to a man on the first day of
the strike, that man must be made whole for what he thus
lost throughout the period starting on November 1, and
ending the day he became well enough to return to work, if
he recovered sufficiently during the 4-month strike. Inquiry
into the question of how long he remained ill, and therefore
how much is now due him, is a matter that is investigated
only in the compliance stage of Board proceedings. This is
because, if no unfair labor practice was committed to start
with, there is no remedy to be concerned with at all.
One of the major contentions made by Respondent in
defense is that if a man goes off the sick list a few days,
maybe a few months, after the start of the strike. and then
joins the strikers, this proves he was a striker from the start.
Respondent did prove that one man-Suley-recovered 3
weeks after November 1, sent in the appropriate medical
certificate to that effect, and then joined the picket line 5
days later. Understandably, Respondent keeps records of
medical certificates showing when employees being paid S
and A benefits are able to return to work. It produced such
records showing that Bernard Casey, who had also been in
the hospital, was recovered as of January 3. 1978, Fred
Sciulli as of January 25, Joseph Bartunek as of January 25,
Al Bodnar as of January 23, and Richard Connor as of
November 28, 1977. Of considerable significance, however,
the records also show that Victor Giglio went into the hos-
1147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pital on October 17 and was still there when the strike
ended; he did not leave the hospital until June 15, 1978.
When did Giglio become a striker? As to the remaining 15
men named in the complaint the record shows nothing
about when their actual disability ended so as to render
them no longer entitled to the S and A benefits.
In its long history of decisions dealing with strikers, the
Board has sometimes protected them against employer dis-
crimination and sometimes abandoned them to deserved
disadvantage, depending upon how they went about strik-
ing, or when they chose to hit at their own, or somebody
else's, employer. But throughout the years it has been the
conscious withholding of services by the employee himself
that put him in the category of a striker before any consid-
eration would be given at all to his protected or unprotected
status under the statute. A striker is different from a non-
striker because the first chooses to withhold his services and
the other does not. And in order to choose, he must be in a
position to make the choice. The child-like simplicity of this
language is compelled because some things cannot be stated
any other way. How a man who-by very plain stipulation
of the parties-is unable to work even if he wants to do so,
can nevertheless be deemed a striker, defies logical compre-
hension.
There are many ways in which an employee can give
evidence of an intent to withhold his services in concert
with fellow workmen. Sometimes the evidence is indirect,
but proof of such intent there must be. A man who is on
vacation, at his own request, when a strike starts, and re-
turns to find half the employees walking the picket line and
half working, by his mere failure to report for duty on
schedule can certainly be found-by rational inference in
the light of the circumstances-to have joined the strike
quite consciously. suppose he can also be said to have
become a striker if he finds everybody outside and no work
being performed inside the factory at all. He may well have
a duty, again in the circumstances, to tell the employer he
wishes to work, if he desires to avoid the reasonable con-
trary implication. Cf. Bechtel Corporation, 200 NLRB 503
(1972). But to say, as does Respondent here, that the man-
sick in the hospital-who in no event could possibly go to
work, must be called a striker because he did not tell man-
agement he wanted to work borders upon the absurd.
The industrial relations manager testified that none of the
22 sick men "advised the company that they were disavow-
ing the strike." But, unlike the returning vacationer, there
was nothing these people had to, or even could, disavow. If
there were some, in the case at bar, who recovered during
the strike and were medically certified as well enough to
work, but did not overtly offer to return, I would put them
with the strikers, then nobody is saying the Respondent was
remiss in not continuing S and A benefits to such a man. It
is the proposed reasoning that, because a man later chooses
to become a striker, it follows he also did so earlier when he
was not, that I reject.
2. The devious reasoning which underlies the defense is
particularly illustrated by one special contention made at
the hearing. There came a time in January, the third month
of the strike, when Respondent sought an injunction in the
local courts based on allegations of mass picketing and vio-
lence by the Union on the picket line; the Union consented
to the decree and a restraining order was issued. On the
basis of this fact, counsel for the Company then argued. on
the record, that one is entitled to receive S and A benefits
"only if you are prevented from working solely because of
sickness or injury." but that "these folks during the strike
period were prevented from working, not solely because of
sickness and injury, but because of the strike .... " What he
was really saying is that, while it is true there is no evidence
"these folks" wanted to, or made any attempt to go to
work-as, of course, they could not-had they tried to do
so they would have been prevented from entering the plant
by the mass picketing and violent misconduct by the
Union, therefore, treat them as though they were both able,
and desirous of going to work-and never mind the fact
that the evidence shows conclusively they never enjoyed the
capacity to go to work at all! It is a kind of "reasoning" that
cannot be answered coherently.
3. This sort of play on words went on and on at the
hearing. At another point the Respondent called the S and
A benefits "wages." "[a]ccident and sickness benefits are a
continuation of wages that an employee otherwise would
have earned, but for his being sick and/or injured. and that
during the course of this strike, there would not have been
any earnings for these employees because of the strike ... ."
The distortion is seen in the fact that the benefits being paid
the sick people were not compensation for contemporane-
ous delivery of services at all, but rather payment for past
work performed. Their entitlement to that money depended
not one wit upon their working at that time.2 That it was
deferred payment for work-albeit conditional upon their
being sick and disabled-is true, but for work performed by
them in the past, not in the present. Indeed, this is why the
man who worked 30 years received more weeks of S and A
benefits while sick than the man who had only performed
as an employee a year, or two, or three. If the sick man
must come out of the hospital and work during a strike to
receive a benefit he sweated for in prior years, must the
retiree, who is collecting the pension he earned over 35
years, also come back. merely because the working comple-
ment is striking at the moment? To ask the question is to
answer it.
4. Another defense is an attempted parallel between this
case and the economic closing, by an employer, of a plant.
In such a case the employer must bargain with the estab-
lished majority representative about "the effects" of the
closing upon the welfare of the employees about to be sent
home. Respondent says it bargained about this when. the
day before the strike, the Union demanded that the S and A
benefits be continued even during the strike, but Respon-
dent came back with the proposal that the payments be
discontinued. The parties could not agree. This was "an
impasse" in bargaining, according to Respondent, where-
upon it had a right to put in effect its last offer-i.e., stop
the payments. But when the parties disagreed on this sub-
2 It must be noted that in this case the complaint does not allege any
impropriety in Respondent's discontinuance of payment of insurance premi-
ums for one kind of benefit or another to assure payment in the event of
death or hospital bills occasioned by events that might have occurred during
the strike. Prior Board Decisions like Towne Chevrolet. 230 NLRB 479
(1977), cited in Respondent's brief. are therefore inapposite.
1148
E. 1. WIEGAND DI)VISION
ject on October 31 then were quarrelling about a question
of law and not about what conditions of employment
should be tomorrow. The money these people had coming
to them was payment for work previously performed. and
not what would be payable to them for future services one
day to be rendered. This defense amounts to no more than
words without meaning.
5. There is one contention that is at least understand-
able, although I find it not a good defense to this complaint.
There is some proof that several of the sick men indicated.
even while they were unable to work. that they believed it
was a good idea fr their fellow workers who could do s to
strike. There are photographs, received in evidence, show-
ing some of the 22 men named in the complaint on the
picket line. As in other aspects, the record as a whole is
misleading on this point too, again because the length of
individual disability was injected haphazardly into the total
story. If a man's face showed up on a picket line photo-
graph taken in January. the third month of the strike. it
may well be that man was no longer entitled to S and A
benefits. and in that event his presence there-- even ift' it
proves he then approved of the strike -is of no help to this
particular argument of Respondent. But it may be that
some of the men shown on the picket line at that time were
still disabled as far as work was concerned. It is that par-
ticular situation to which this defense argument applies)
In my judgment the analogy is to the protected expres-
sion of opinion by any management representative. No
matter how often he voices his opinion that collective bar-
gaining, or unionism in any other form, is a bad thing. no
matter how disturbing his such statements may be to the
union enthusiast, there can be no finding that he materially
or economically did anything wrong. illegal, in contraven-
tion of this statute. Here the question is was the sick man a
striker. The fact he may have said. no matter when. that in
his opinion striking is a good thing cannot support a finding
that he is in fact a striker, or took any action against his
employer. Nobody can find the employer, nor indeed any
respondent. did what he never did, so long as his expres-
sions of opinion are protected by law. By like reasoning. no
employer can act towards an employee as though he in fact
were a striker, when in fact all the workman did was ex-
press his opinion as to the merits of protected concerted
activity.
6. A final suggested concept: There came a time. in mid-
December. when the Union took pity on those of its mem-
bers who were being subjected to this deprivation by their
employer. Established UAW rules say only strikers receive
authorized strike benefits. These 22 men not being strikers,
they were not receiving such strike benefits between No-
vember I and December 12. despite the Union's persistent
I hat this i at hest onl? a partial detense to the complaint is shown bn
the fact some of the men testified the. told the Compaln. in Novemher or
earls I)ecemher, when their money stopped coming, that they were not strik-
ing. hus Susan I horpe called the personnel office on the phone and said. "I
wanted to know : h.hy because I wasn't a strnker, I was on disability " he
only answer she gt as "that it ias the compan>'s polic " Michael Sules
also called the compan n office "I said I'm not on strike. I didn't palrticipate
in the strike at all. I didn't take strike sote. I was on sick leae, nohod
contacted me thalt he, had cui mrn benefits ofl. and this as the first I hd
heard abhal It, and she said there's nothinig I can do. it 's the cornpa.ns poli,
Ihere is like testrimion hs V icor (SIgho
efforts to convince the Compan. here therefore was an
extraordimnar exception made in the special circumstance.
and from December 12 on the Union paid them too the
same amount it was giving the strikers.
I)oes it follow from this fact that the Union made strikers
of people who were not. and could not be strikers? I think
not.
I do not read the split decision in Souihestern Electric
Power Compainv, 216 NI.RB 522 (1975). as mandating a
contrary decision here. Read together with the Board's later
decision in Indiana & Ml'ichigea Electric (Comnpati. 236
NLRB 986 (1978). I cannot say it is today a Board rule of
law,, that the mere expression of opinion concerning the
merits of strike action by persons w ho are in no conceiX able
sense capable of engaging in strike action suffices to make
strikers of people who simply are not. In the latter case the
employees in question were actually on strike, and the
Board found it to have been an unfair labor practice by
their employer to have withheld leave pay due on the basis
of work previously performed, saying that "the pay had
already been earned." Like them, the 22 employees named
in this complaint had already earned their S and A benefits
before the strike started.
C. Mlotion To Dismis.s
When the parties reached agreement on the terms of a
new contract and ended the strike, on February 28. 1978.
they signed a memorandum of agreement. It provided.
among other things, that the Union would withdraw any
charges then pending before this Board. The pertinent lan-
guage reads as follows:
It is further understood and agreed that all pending
grievances, charges, civil and/or criminal proceedings
arising out of or in relation to actions taken or occur-
ring during the strike. including those relating to ac-
tions or proceedings brought hb or against individuals.
shall be withdrawn with prejudice or the parties shall
cause them to be so withdrawn.
Relying upon this language. Respondent moves for dis-
missal of this complaint. The motion is denied.
The Board acts in the public interest to enforce public.
not private, rights. National Licorice Companr . I R. RB.
309 U.S. 350 (1940): , nalgamated U'lilitv WforAersv . (oi-
.1olidated Edison Comipap (tl N/ \ew )aork. /nc.. 3)9 .S. 261
(1940): Agwilhnes . . N.L.R.B. 87 .2d 146 (5th Cir.
1936). "henever private contracts conflict with its func-
tions, the 3 obviously must yield or the Act would be re-
duced to a futility." J. I. (se (ompany v N..I..R.B., 321
U.S. 332 (1940).
Section 10(a) of the Act explicitly provides that the
Board's power to prevent unfair labor practices "shall not
be affected b ans other means of adjustment or prevention
that has been or may he established bh agreement. law. or
otherwise .... .Accordingly. the "parties cannot hby con-
tractual agreement di.est the Board's function to operate in
the public interest." Boire . Inlernational Brohri,iod ol
7ilaimters. (< haufl'urs. II 'areh o i1en & 1i1hpevs oft 1 merit i
/Pilot reight Carriers, Int.1. 47)9 .2d 778 tOth ( r. 1973)
1149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. 1IH RMtEI)Y
It having been found that Respondent unlawfully with-
held sick and accident benefit payments to the 22 employ-
ees named in the complaint, it must be ordered, in remedy.
to pay them what money was due them, with interest. The
period for which such reimbursement must be made is from
November 1, 1977, through February 28. 1978. Those of
the 22 employees who ceased being sick or disabled during
that period of course will be paid only what sick and acci-
dent benefits were due them to the day of their recovery.
V. 'iltF IFFE(IS OF lii. UNFAIR l.ABOR PRA(TI('iS UPON
(OMMER('E
The activities of' Respondent set out in section 111, above,
occurring in connection with the operations of Respondent
described in section 1, have a close. intimate, and substan-
tial relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
CO()N( t.SIoNS OFi LAW
1. By withholding from November 1,. 1977. through Feb-
ruary 28, 1978. payment of sick and accident benefits to the
employees named in the complaint herein, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law.
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
ORDER'
The Respondent, E. L. Wiegand Division. Emerson Elec-
'In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National abor Relations Board. the findings.
tric Co., Pittsburgh, Pennsylvania, its officers, agents, suc-
cessors. and assigns, shall:
1. Cease and desist from:
(a) Withholding payment of sick and accident benefits
from employees for the purpose of coercing them or other
employees in the exercise of their rights to engage in pro-
tected concerted activities, including strike.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action deemed neces-
sary, to effectuate the policies of the Act:
(a) Make whole the employees listed in the complaint by
paying to each what sick and accident benefits were due
them during the period November 1, 1977. to February 28.
1978, with interest pursuant to present Board law.
(b) Preserve and make available to the Board or its
agents, upon request, all records necessary to analyze the
amount due in the effectuation of this remedial order.
(c) Post at Respondent's place of business in Pittsburgh,
Pennsylvania, copies of the attached notice marked "Ap-
pendix."' Copies of said notices, on forms provided by the
Regional Director for Region 6, after being signed by its
representatives, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by it to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
conclusions, and recommended Order herein shall, as provmded 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.
In the event that this Order is enforced b a Judgment of a United States
Court of Appeals, the 'ords in the notice reading "Posted b Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1150