Energy Cooperative, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1988

290 N.L.R.B. 635 (N.L.R.B. 1988)

ENERGY COOPERATIVE
Energy Cooperative, Inc. and Julius Sako . Case 13-
CA-19985
July 29, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN , BABSON , AND CRACRAPT
On April 24, 1981, Administrative Law Judge
Wallace H. Nations issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed cross-excep-
tions and a brief in response to the Respondent's
exceptions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings , findings, and
conclusions only to the extent consistent with this
Decision and Order.
The alleged violations in this case are based on
the Respondent 's withholding from sick or disabled
employees benefits under its sickness and accident
(S & A) benefit plan during a lawful economic
strike at the Respondent 's East Chicago refinery.
Local 7-210 of the Oil, Chemical , and Atomic
Workers International Union (the Union) for many
years represented Arco-Sinclair employees , includ-
ing those at the East Chicago refinery . The Re-
spondent purchased the East Chicago refinery in
1976 and agreed to honor the then-existing con-
tract . In 1979 the Respondent entered into a con-
tract with the Union containing a reopener clause
permitting the Union to strike after January 8,
1980, 1 if the parties failed to reach agreement.
On January 8 , the Union commenced an eco-
nomic strike . Immediately , the Respondent ceased
paying S & A benefits to 11 employees who had
been receiving benefits before the strike began.
On April 15, the Respondent and the Union set-
tled the strike and executed a memorandum of
agreement . According to the agreement 's terms, all
unit employees received increases in wages and
benefits. Further , in consideration of certain bene-
fits not paid as a result of the strike , the Respond-
ent agreed to pay the company portion of the em-
ployees ' health insurance premiums , which the em-
ployees had assumed during the strike. The memo-
randum of agreement also expressly provided that
payment of the insurance premium was in full set-
tlement of any pending or future grievance or
NLRB charge related to benefits. 2
I
All dates are in 1980 unless otherwise specified
s The full text of the pertinent provisions of the memorandum of
agreement is as follows.
6. It is agreed that in consideration of certain benefits not paid as a
result of the strike for each employee represented by Local 7-210,
635
The judge found that during the economic strike
the Respondent withheld S & A benefits from the
11 employees based on the fact that the remaining
work force engaged in strike activities in violation
of the Act. The judge rejected the Respondent's
contention that the strike settlement agreement re-
quired dismissal of the complaint. The judge, rely-
ing on the Board 's decision in Emerson Electric
Co.,3 held that the settlement agreement did not
affect the Board 's power to prevent unfair labor
practices or warrant the Board 's abdication of its
jurisdiction or its obligation to enforce public
rights.
In its exceptions , the Respondent argues that the
complaint should be dismissed based on the parties'
settlement agreement . For the reasons set forth
below , we agree.4
The Board held in Texaco, Inc., 285 NLRB 241,
243 (1987), that the withholding of contractual ac-
cident and sick benefits to disabled employees
during a strike can be a violation of Section
8(a)(3).5 The Board went on to note , however, that
an employer may successfully defend against an al-
legation of discrimination or coercion in the denial
of employee benefits by proving, inter alia , "that a
collective-bargaining representative has clearly and
unmistakably waived its employees ' statutory right
to be free of such discrimination or coercion."6
OCAW, as of January 8 , 1980, and continuing on the active payroll
as of the termination of the strike , the Company shall pay any Com-
pany contribution to the Medical , Life and Accidental Death & Dis-
memberment Plan owed or paid by the employee during the strike.
It is further agreed by the parties that such payment is in full settle-
ment of any grievance , NLRB charges or action pending or in the
future related to the handling of all benefits during the strike
8. The parties agree that they will not file any legal or National
Labor Relations Board actions as a result of this strike and that any
such action filed or pending will be withdrawn and become null and
void
It is understood and agreed that the Acceptance of this Memoran-
dum of Agreement constitutes a full, final and complete resolution of
all outstanding issues existing between the parties and the contract
reopen provision is hereby cancelled in its entirety; and that this
Memorandum of Agreement amends the Labor Agreement between
the parties signed January 19, 1979, accordingly.
Emerson Electric Co, 246 NLRB 1143 (1979), enfd . as modified 650
F 2d 463 (3d Cir 1981), cert . denied 455 U S 939 ( 1982).
4 The Respondent also argues as a threshold matter that this case
should be deferred to arbitration . Based on our finding below that the
Union relinquished all pending and future claims with regard to the non-
payment of benefits during the strike , we find deferral to be inappropri-
ate We further find it unnecessary to address the Respondent 's defense
that the withholding of benefits was lawful under the collective -bargain-
ing agreement
° In Texaco the Board expressly overruled the Emerson Electric Co.
theory of violation and held that whether an employer's witholding of
accident and sick benefits to disabled employees during a strike violates
Sec 8 (a)(3) will be resolved by application of the Great Dane test for al-
leged unlawful conduct Texaco. 285 NLRB 241 citing NLRB v Great
Dane Trader. 388 U S. 26 (1976)
° In Texaco, at 246, however, and Texaco. Inc, 287 NLRB 903 (1987),
the issue of whether similar strike settlement agreements waived such
statutory rights was not before us. Thus , in neither case was it contended
that the agreements applied to the charges filed by individual employees
290 NLRB No. 78
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In Texaco , the Board cited Metropolitan Edison
Co. v. NLRB, 460 U.S. 693 (1983), and Conoco, Inc.
v. NLRB, 740 F.2d 811, 815 (10th Cir. 1984), for
the proposition that an employee 's statutorily pro-
tected right to receive such benefits free of dis-
crimination can be waived .? In Metropolitan Edison,
supra at 705 , the Court noted that it "long has rec-
ognized that a union may waive a member 's statu-
torily protected rights." In this regard , it stated:
Such waivers are valid because they "rest on
'the premise of fair representation' and presup-
pose that the selection of the bargaining repre-
sentative 'remains free,"' NLRB v. Magnavox
Co., 415 U.S. 322, 325, (1974) (quoting Mastro
Plastics Corp. v. NLRB, 350 U.S. 270, 280
(1956)); cf. NLRB v. Allis-Chalmers Manufac-
turing Co. [388 U.S. 175], at 180- 181. Waiver
should not undermine these premises. Thus a
union may bargain away its members ' econom-
ic rights, but it may not surrender rights that
impair the employees ' choice of their bargain-
ing representative . See NLRB v. Magnavox Co.
[415 U.S. at 325].8
The Court went on to reject a union argument that
although a union may waive collective rights it
may not waive individual ones . It noted that in
Ford Motor Co. v. Huffman, 345 U.S. 330 (1953),
"the Court recognized that in securing the good of
the entire bargaining unit , some differences in the
treatment of individual union members might occur
.."9 Waiver of an employee's statutorily pro-
tected right to receive benefits free of discrimina-
tion imposes no constraints on the employee 's abili-
ty to choose a representative . It is directly analo-
gous to a union's bargaining away its member's
economic rights . Therefore, the right to receive
contractual S & A benefits is clearly waivable by
the Union subject to the duty of fair representation.
Assessing the clarity with which a statutory
right must be waived, according to Metropolitan
Edison , requires consideration of the circumstances
of each case .' ° Thus, determining whether such a
waiver has occurred depends crucially on context
and the specific circumstances presented . A clear
and unmistakable waiver can occur in any of three
ways: by express contract language , by the parties'
conduct including bargaining history and past prac-
tices , or by a combination of both.'' In light of the
entire record, we find such a clear and unmistak-
able waiver here.
The language of the parties ' strike settlement
agreement evinces a clear intent to give up certain
benefits in exchange for other payments . In this
regard , the pertinent provision of the memorandum
of agreement states that , in consideration of bene-
fits not paid during the strike , the Respondent
agreed to pay its portion of the employees ' health
insurance premiums , which the employees had as-
sumed during the strike . Immediately following this
language is the further agreement by the parties
that this payment is in "full settlement of any
grievance , NLRB charges or action pending or in
the future related to the handling of all benefits
during the strike." Thus, it was expressly in return
for the Union's relinquishment of all pending and
future claims with regard to all benefits not paid
during the strike that the Respondent agreed to
provide a limited payment to all employees , includ-
ing those who were sick or disabled during the
strike . Finally, the strike settlement agreement
states that acceptance of the agreement "constitutes
a full, final and and complete resolution of all out-
standing issues between the parties ." This provision
leaves no doubt about the parties ' intent to finally
and completely resolve all issues, including those
related to the administration of employee benefits
during the strike.
That this language clearly contemplates within
the term "benefits not paid as a result of the strike"
the contractual S & A benefits withheld from sick
or disabled employees at issue here is reinforced by
the relevant bargaining history. The strike settle-
ment bargainers recognized the S & A benefit issue
and explicitly dealt with the issue during negotia-
tions . The Respondent 's manager of industrial rela-
tions testified that, during negotiations leading up
to the strike settlement agreement , the Union's rep-
resentative asked that employees disabled prior to
the strike be paid the S & A benefits that they had
been denied during the strike . His unrebutted testi-
mony reveals that he responded that the settlement
package was all management could offer. Thus, the
parties' conduct in negotiations additionally indi-
cates that they understood that the settlement,
which was ultimately agreed on , did not include S
& A benefits payments.' 2
7 Texaco, at fn. 23.
e Metropolitan Edison at 705-706.
v Id. at 707.
10 Metropolitan Edison, 460 U .S at 709, cited in Electrical Workers
IBEW Local 1395 (Indianapolis Power) v NLRB, 797 F 2d 1027 (D C
Cir. 1986); Pertec Computer Corp., 284 NLRB 810 (1987 ); Indiana &
Michigan Electric Co., 273 NLRB 1540 (1985), enfd . 599 F2d 227 (6th
Cir. 1986).
" C & P Telephone v. NLRB, 687 F.2d 633, 636 (2d Cir 1982), cited
with approval in United Technologies Corp.. 274 NLRB 504, 507 (1985).
See also ChallengeCool Bros., 282 NLRB 21 (1986), Boise Cascade Corp.,
279 NLRB 422 (1986), and Suffolk Child Development Center. 277 NLRB
1345 (1985)
12 Moreover, our finding that the Union knowingly waived employee
entitlement to S & A benefit- is further bolstered by testimony that af-
fected employees were aware of that fact when the settlement agreement
was presented for ratification.
ENERGY COOPERATIVE
Based on all the above, we conclude that the
parties' settlement agreement establishes that the
Union clearly and unmistakably waived its sick and
disabled employees' right to receive contractual S
& A benefits for the duration of the strike.
Regarding whether to give effect to the private
agreement between the Union and the Respondent
with respect to the individual employee claim here,
we emphasize that we adhere to the principle that
the Board acts in the public interest to enforce
public, not private, rights. Consistent with that
view, however, we look favorably on private strike
settlements that result in the amicable resolution of
labor disputes and thus serve the public interest as
well as that of the parties.113 We must not disre-
gard, therefore, a lawful and voluntary strike settle-
ment agreement , but must determine whether
giving full effect to the settlement agreement will
effectuate the purposes and policies of the Act. 114
Our analysis of the substance of the agreement
and the circumstances in which it was reached con-
vinces us that giving full effect to the Union's
waiver of the employees' right to receive contrac-
tual benefits will effectuate the purpose and poli-
cies of the Act. We recognize that a statutory
right, the employees' right to receive these benefits
free from discrimination, is involved. It is for that
reason that the clear and unmistakable waiver
standard is applicable here. See discussion of Met-
ropolitan Edison and Texaco, Inc., 285 NLRB 242,
supra at fns . 5-10, and accompanying text. But just
as we apply that demanding standard when it is ap-
plicable and has been met , there are sound reasons
for honoring the results of the collective bargaining
that has produced the waiver of the statutory
right. 115
The employee rights involved here are the same
rights the Board found to have been lawfully and
effectively waived in its 1985 Texaco decision; see
footnote 13 above. As the Board said in that deci-
sion concerning the policy reason for giving effect
to the similar strike settlement agreement in that
case:
to Texaco. Inc., 273 NLRB 1335 (1985 ). In that case , the Board re-
evaluated and redefined the Emerson Electric approach toward settlement
agreements relied on by the judge here.
14 This policy is consistent with the one the Board articulated recently
with respect to private settlements of unfair labor practice charges in In-
dependent Stave Co., 287 NLRB 740 (1987), which cites, inter alia,
Texaco, Inc., 273 NLRB 1335.
15 Cf. NLRB v. Magnavox Co, cited in Metropolitan Edison , discussed
supra at In . 7, and accompanying text (a waiver in derogation of certain
basic employee rights by a bargaining representative is not permitted,
even if the bargaining representative clearly and unmistakably agrees to
it). We additionally note that there has been no fraud, unlawful coercion,
or duress by any of the parties in reaching the settlement, that the settle-
ment was to the overall benefit of all unit employees , and that the indi-
vidual charge was not pending at the time the settlement was entered
into. See Independent Stave, discussed above at fn 14.
637
In order to promote the parties' desire to re-
solve their dispute voluntarily, we should pro-
vide every reasonable encouragement that
their disputes be resolved on as comprehensive
a basis as their strike settlement agreement
would indicate. [273 NLRB at 1337.]
We note that in that Texaco case, the Union was
the sole charging party, and no individual employ-
ee sought to litigate his rights, as distinguished
from the instant case. We, however, do not find
that this changes the result. The Union here ik' au-
thorized as the exclusive bargaining representative
to bargain on behalf of the employees regarding
the receipt of the employee benefits. It did so here,
and the Respondent was entitled to rely on the au-
thority of the bargaining representative to establish
employee entitlement to contractual benefits, and,
further, to fully and completely settle all issues in
dispute, subject to the duty of fair representation.
To hold otherwise would frustrate the goal of
achieving amicable resolution of labor disputes. In
this regard, as we discussed at footnote 9 and ac-
companying text, the Supreme Court expressly rec-
ognized in Metropolitian Edison, supra, that a union
may choose to waive individual rights, in securing
the good of the entire unit.16
In short, we find that the Union has clearly and
unmistakably waived employee rights, which were
waivable by the Union, and that giving effect to
the agreement of which this waiver was a part will
effectuate the purposes and policies of the Act. Ac-
cordingly, the complaint is dismissed.17
CHAIRMAN STEPHENS, concurring.
I join the majority opinion but write separately
only to suggest that the facts of this case do not
afford us an opportunity to plumb the limits of the
rule that we announce today. In this case we are
presented with the question of whether to give
effect to a strike settlement agreement , negotiated
between an employer and a union, that purports to
compromise and waive the rights of unit members
individually to seek redress from the Board for al-
leged violations under the Act, specifically discrim-
ination prohibited by Section 8(a)(3). The issue is
unique insofar as the individual charging parties
here were not signatories to the settlement agree-
16 See also Mahon Y. NLRB, 808 F 2d 1342 (9th Cir 1987), affg. Alpha
Beta Co., 273 NLRB 1546 (1985), in which the court noted that a union is
empowered to bind employees it represents wholly apart from their sepa-
rate consent.
19 To the extent that the Board's affirmance of the judge 's conclusions
in Texaco. Inc., 259 NLRB 1217, 1218 fn. 2 (1982 ), enfd . 700 F2d 1039
(5th Cir 1983) (when the judge rejected a substantially identical employ-
er contention about the effect of a similar settlement agreement with re-
spect to charges filed by individual unit members ) could be read as being
inconsistent with the decision we reach today , that case is overruled
ENERGY COOPERATIVE 637
Based on all the above, we conclude that the
parties' settlement agreement establishes that the
Union clearly and unmistakably waived its sick and
disabled employees' right to receive contractual S
& A benefits for the duration of the strike.
Regarding whether to give effect to the private
agreement between the Union and the Respondent
with respect to the individual employee claim here,
we emphasize that we adhere to the principle that
the Board acts in the public interest to enforce
public, not private, rights. Consistent with that
view, however, we look favorably on private strike
settlements that result in'the amicable resolution of
labor disputes and thus serve the public interest as
well as that of the parties.13 We must not disre-
gard, therefore, a lawful and voluntary strike settle-
ment agreement, but must determine whether
giving full effect to the settlement agreement will
effectuate the purposes and, policies of the Act.14
Our analysis of the substance of the agreement
and the circumstances in which it was reached con-
vinces us that giving full effect to the Union's
waiver of the employees' right to receive contrac-
tual benefits will effectuate the purpose and poli-
cies of the Act. We recognize that a statutory
right, the employees' right to receive these benefits
free from discrimination, is involved. It is for that
reason that the clear and unmistakable waiver
standard is applicable here. See discussion of Met-
ropolitan Edison and Texaco, Inc., 285 NLRB 242,
supra at fns. 5-10, and accompanying text. But just
as we apply that demanding standard when it is ap-
plicable and has been met, there are sound reasons
for honoring the results of the collective bargaining
that has produced the waiver of the statutory
right. 's
The employee rights involved here are the same
rights the Board found to have been lawfully and
effectively waived in its 1985 Texaco decision; see
footnote 13 above. As the Board said in that deci-
sion concerning the policy reason for giving effect
to the similar strike settlement agreement in that
case:
"Texaco, Inc., 273 NLRB 1335 (1985). In that case, the Board re-
evaluated and redefined the Emerson Electric approach toward settlement
agreements relied on by the judge here.
14 This policy is consistent with the one the Board articulated recently
with respect to private settlements of unfair labor practice charges in In-
dependent Stave Co., 287 NLRB 740 (1987), which cites, inter alia,
Texaco, Inc., 273 NLRB 1335.
15 Cf. NLRB v. Magnavox Co., cited in Metropolitan Edison, discussed
supra at fn. 7, and accompanying text (a waiver in derogation of certain
basic employee rights by a bargaining representative is not permitted,
even if the bargaining representative clearly and unmistakably agrees to
it). We additionally note that there has been no fraud, unlawful coercion,
or duress by any of the parties in reaching the settlement, that the settle-
ment was to the overall benefit of all unit employees, and that the indi-
vidual charge was not pending at the time the settlement was entered
into. See Independent Stave, discussed above at fn. 14.
In order to promote the parties' desire to re-
solve their dispute voluntarily, we should pro-
vide every reasonable encouragement that
their disputes be resolved on as comprehensive
a basis as their strike settlement agreement
would indicate. [273 NLRB at 1337.]
We note that in that Texaco case, the Union was
the sole charging party, and no individual employ-
ee sought to litigate his rights, as distinguished
from the instant case. We, however, do not find
that this changes the result. The Union 'here"is' au-
thorized as the exclusive bargaining representative
to bargain on behalf of the employees regarding
the receipt of the employee benefits. It did so here,
and the Respondent was entitled to rely on the au-
thority of the bargaining representative to establish
employee entitlement to contractual benefits, and,
further, to fully and completely settle all issues in
dispute, subject to the duty of fair representation.
To hold otherwise would frustrate the goal of
achieving amicable resolution of labor disputes. In
this regard, as we discussed at footnote 9 and ac-
companying text, the Supreme Court expressly rec-
ognized in Metropolitian Edison, supra, that a union
may choose to waive individual rights, in securing
the good of the entire unit.16
In short, we find that the Union has clearly and
unmistakably waived employee rights, which were
waivable by the Union, and that giving effect to
the agreement of which this waiver was a part will
effectuate the purposes and policies of the Act. Ac-
cordingly, the complaint is dismissed.17
CHAIRMAN STEPHENS, concurring.
I join the majority opinion but write separately
only to suggest that the facts of this case do not
afford us an opportunity to plumb the limits of the
rule that we announce today. In this case we are
presented with the question of whether to give
effect to a strike settlement agreement, negotiated
between an employer and a union, that purports to
compromise and waive the rights of unit members
individually to seek redress from the Board for al-
leged violations under the Act, specifically discrim-
ination prohibited by Section 8(a)(3). The issue is
unique insofar as the individual charging parties
here were not signatories to the settlement agree-
11 See also Mahon v. NLRB, 808 F.2d 1342 (9th Cir. 1987), affg. Alpha
Beta Co., 273 NLRB 1546 (1985), in which the court noted that a union is
empowered to bind employees it represents wholly apart from their sepa-
rate consent.
" To the extent that the Board's affirmance of the judge's conclusions
in Texaco. Inc., 259 NLRB 1217, 1218 fn. 2 (1982), enfd. 700 F.2d 1039
(5th Cir. 1983) (when the judge rejected a substantially identical employ-
er contention about the effect of a similar settlement agreement with re-
spect to charges filed by individual unit members) could be read as being
inconsistent with the decision we reach today, that case is overruled.
ENERGY COOPERATIVE
conduct that discourages (or encourages) union
membership (Sec. 8(a)(3)); and (b) a nonstatutory
entitlement to S & A benefits payable during peri-
ods of disability , which are granted to employees
individually solely by virtue of the Union 's having
previously obtained such benefits at the bargaining
table.2 The majority is correct to recognize the
latter aspect and to allow the Union the power to
barter a portion of that contractual right away
(that is, to allow suspension of payments during
certain circumstances) in return for other economic
considerations that the Union in its discretion sub-
sequently deems to be more beneficial to the unit
as a whole.
However, we must not lose sight of the statutory
right involved . As is evident from the holding of
Texaco, Inc., 285 NLRB 241 (1987 ), a decision that
involved the same underlying labor dispute and
strike as the instant one , it is prima facie unlawful
discrimination for an employer to suspend payment
of accrued S & A benefits to sick or disabled em-
ployees solely because unit employees engage in a
protected strike . The vice of such conduct is that it
"surely may have a discouraging effect on either
present or future concerted activity ."3 Yet the fact
that this discriminatory effect may occur does not
necessarily foreclose the union from agreeing to
tolerate it. The Court in Metropolitan Edison was
willing to subject union officers to disparate pun-
ishment because such discrimination could be
linked to the union 's waiver of the right to strike.
Similarly, in the instant case, there is a nexus be-
tween the discriminatory denial of the S & A bene-
fits and the Union 's decision regarding constraints
it can accept on the employees ' exercise of their
right to strike . The Supreme Court has long recog-
nized that a union does have the inherent authority
as exclusive bargaining representative to agree to
restraints on the statutory right to strike.4 If a
union can agree to waive the right to strike during
a contract term or the right to refuse to cross a
lawful picket line, the union can surely agree to
tolerate a restraint such as the one in the instant
case, which only burdens (in the sense of creating
certain financial disincentives) rather than bans out-
right the exercise of the right to strike.
It is true that the waiver here was obtained
under circumstances that were arguably different
than the purported waiver that the employer in
2 Without a contract , employees who are sick or disabled and cannot
report to work would not have been entitled to compensation . See Gener-
al Electric Co., 80 NLRB 510, 511 (1948) (employer is not required to
finance an economic strike against it by remunerating strikers for work
not performed).
0 NLRB v. Great Dane Trailers, 388 U . S. 26 (1967).
4 See NLRB v. Allis-Chalmers Mfg. Co, 388 U .S. 175,180 ( 1967).
639
Metropolitan Edison thought it had obtained.5
There the asserted waiver was part of a collective-
bargaining contract that was presumably negotiated
in a context free of unlawful coercion. Here, in
contrast, there is antecedent unlawful conduct-the
denial of S & A benefits-which normally triggers
an obligation on the part of the Board to remedy
and deter . However, this distinction should not
necessarily limit the ability of the Union here to ne-
gotiate waivers of statutory rights . The unlawful
discrimination was in direct response to the strike
called by the Union, it ceased on termination of the
strike, and it did not appear to have a lasting detri-
ment to either the bargaining relationship or the
ability of the employees to engage in protected
concerted activity. Moreover, as noted above, the
statutory violation was rooted in the contractual
benefits that the Union itself had previously ob-
tained . Under these circumstances , it was entirely
appropriate for the Union to settle the statutory
violations as part of a comprehensive overall agree-
ment that restored labor peace , resolved the con-
tract issues that gave rise to the dispute , and pro-
vided an overall improvement in the terms and
conditions of the unit employees, including the dis-
criminatees.
In sum , concerning the first branch of the Metro-
politan Edison test, I conclude that the employees'
statutory right to be free from discrimination is not
simply an "economic" right , capable of union
waiver because the union and the employer are
able to assign a monetary value to the right and
treat it like a bargaining chip. Because of the nexus
here between the waiver of right against discrimi-
nation and the Union's privilege to waive the right
to strike, I am satisfied that the Union had the
power to enter into an agreement that might effec-
tively lead to a dismissal of the discriminatees'
charges against the Respondent . But whether a
union , on behalf of particular employees and with-
out their express individual consent , could waive
other types of statutory violations in other con-
texts, in my view, would have to be carefully ex-
amined in future cases.6
5 As noted above, a waiver of statutory rights was not found in Metro-
politan Edison, but the Court reached this conclusion on the grounds that
there was insufficient evidence of a clear and unmistakable waiver. As a
threshold matter, however, the Court clearly sustained the power of the
union to negotiate into the collective -bargaining agreement a limited
waiver of its union officers ' protection against discrimination.
The record shows that at least some of the I I discriminatees knew
the terms of the settlement agreement, but it is uncertain whether all of
them were so aware . Two of the discriminalees even participated in a
ratification vote, although the record does not disclose how they voted.
For purposes of establishing whether the Union clearly and unmistakably
intended to waive the statutory rights of the charging party and other
discriminatees, this evidence is certainly probative . However, I would not
equate it with the evidence of individual express consent that the Board,
Continued
640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The remaining aspects of the Metropolitan Edison
analysis-whether the Union's action comported
with the duty of fair representation and whether
the clear and unmistakable waiver standard was
satisfied-do not require extended discussion.
There is no evidence that the Union in reaching
this settlement agreement engaged in any type of
discriminatory conduct that might constitute a
breach of the duty of fair representation.7
Furthermore, I agree with my colleagues ' assess-
ment that the Union did manifest a clear and un-
mistakable intent to compromise the charging par-
ties' claims for relief under the Act.
MEMBER CRACRAFT, concurring.
Like my colleagues , I would dismiss the com-
plaint because the Union clearly and unmistakably
waived disabled employees ' rights to sickness and
accident plan benefits (S & A benefits) in the strike
settlement agreement executed between it and the
Respondent ." In doing so , however, I rely only on
the language of the agreement-specifically, the
second sentence of clause 6-and the undisputed
fact that S & A benefits were discussed during the
negotiations leading to the agreement.
The second sentence of clause 6 of the strike set-
tlement agreement provides: "It is further agreed
by the parties that such payment is in full settle-
ment of any grievance , NLRB charges or action
pending or in the future related to the handling of
all benefits during the strike" (emphasis added). I
in other decisions , has found relevant . See Alpha Beta Co., 273 NLRB
1546, 1547 (1985) (settlement negotiated by union was subsequently ap-
proved by apparently all affected employees ), petition for review denied
808 F.2d 1342 (9th Cir. 1987), Coca-Cola Bottling Co., 243 NLRB 501,
502 (1979); Central Cartage Co., 206 NLRB 337 (1973). See also Airport
Parking Management Co., 264 NLRB 5, 13 (1982), enfd. 720 F.2d 610 (9th
Cir 1983) (Board decided not to defer to strike settlement agreement be-
cause, inter alia, no evidence that employees understood agreement to
waive their right to pursue claims arising out of strike). Compare Lectro-
melt Casting Co., 269 NLRB 933, 934 ( 1984) (strike settlement agreement
gave discriminatees the option of accepting settlement on an individual
basis; those who accepted it waived statutory rights whereas those who
rejected it could pursue remedy with the Board ), with Hotel Holiday Inn
De Isla Verde, 278 NLRB 1027, 1028 (1986) (complaint dismissed on
grounds of union-negotiated strike settlement agreement which "[a]ll the
affected discharged strikers were aware of," did not object to, and by
conduct indicated acceptance of its terms).
r See Teamsters Local 310 (Duval Corp.) Y. NLRB, 587 F.2d 1176, 1181,
1184-1185 (D.C Cir. 1978), on remand 243 NLRB 1157 (1979). Compare
United Aircraft Corp. (Pratt & Whitney), 192 NLRB 382, 388 (1971), peti-
tion for review denied in pertinent part on other grounds sub nom. Ma-
chinists Lodges 743 & 1746 Y. United Aircraft Corp, 534 F.2d 422, 450-451
(2d Cir. 1975), with Laher Spring Bi Electric Car Corp., 192 NLRB 464,
466 (1971).
' Except for the circumstances mentioned below, I would defer this
proceeding to arbitration in light of the history and quality of the parties'
bargaining relationship , the absence of union animus, the Respondent's
willingness to resort to arbitration , the scope of the arbitration clause,
and the fact that contract interpretation ii central to resolution of this dis-
pute. See Collyer Insulated Wire, 192 NLRB 837 (1971); United Technol-
ogies Corp., 268 NLRB 557 (1984). Due to the length of time this case has
been at the Board , however, deferral at this point would be inequitable as
it would only further delay disposition of the matter at issue.
read this sentence to mean that the Union ex-
changed the right to grieve the Respondent's han-
dling of all benefits during the strike for the pay-
ment specified . Thus, the Union clearly and unmis-
takably waived any possible contractual claim to S
& A benefit entitlement during the strike . The bar-
gaining history of the strike settlement agreement
shows S & A benefits were discussed in relation to
settling the strike , which bolsters the finding that S
& A benefits are encompassed within the Respond-
ent's "handling of all benefits during the strike."
In conclusion , because the Union has clearly and
unmistakably waived disabled employees ' entitle-
ment to contractual S & A benefits by forgoing its
right to contractually grieve the matter , the Re-
spondent cannot have committed an unfair labor
practice by withholding these benefits.
Rochelle Golub, Esq., for the General Counsel.
Glenn R. Patterson and Palmer Singleton Jr., Esqs., of
Highland , Indiana, for the Respondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge.
The original charge in this case was filed on June 3,
1980, and amended on June 17, 1980. The original com-
plaint issued on June 30, 1980, and was amended July 1,
1980. Respondent 's answer to the complaint is dated July
7, 1980, and was amended July 1, 1980. The complaint
alleged that immediately on the commencement of an
economic strike at its Indiana facility, and continuing
until the end of the strike , Respondent ceased paying
sickness and accident disability benefits (S and A Bene-
fits) to named unit employees " previously receiving such
benefits and, by such act, has engaged in and is engaging
in unfair labor practices affecting commerce within the
meaning of Section 8 (a)(3) and (1) of the Act. In its
answer, Respondent denies the commission of any unfair
labor practices and affirmatively asserts that a memoran-
dum of agreement between the Respondent and Local 7-
210 of the Oil, Chemical, and Atomic Workers Interna-
tional Union acts as a bar to the filing of the complaint
in this case . A hearing was held before me in Chicago,
Illinois , on February 9 and 10, 1981. Briefs have been re-
ceived from the General Counsel and Respondent.
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor I make the fol-
lowing
' The alleged discriminates are. Julius Sako , Leroy O'Donnall, Paul
Ferrantelli , Donald Hensley , Andrew Habzansky , Edward Kolesky, Jack
Dowell , Harry Wickhorst, Jimmy Siokos , Robert Fnsbie, and Mary Ka-
sperek.
ENERGY COOPERATIVE 641
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent , a Delaware corporation , is engaged in the
business of petroleum refining and processing with an
office and principal place of business located at 3500 In-
dianapolis Boulevard , East Chicago , Indiana . During the
year preceding issuance of the complaint , Respondent
sold and shipped goods valued in excess of $50 ,000 from
its East Chicago, Indiana facility directly to points locat-
ed outside the State of Indiana . I find that Respondent is
an employer within the meaning of the Act and that it
will effectuate the policies of the Act to assert jurisdic-
tion in this case.
11. THE LABOR ORGANIZATION INVOLVED
Local 7-210, Oil, Chemical , and Atomic Workers
International Union , AFL-CIO (the Union) is a labor or-
ganization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Energy Cooperative , Inc. (ECI or Respondent) was
formed in 1976 by nine agricultural cooperatives in re-
sponse to the oil embargo of 1973- 1974, during which
these cooperatives lost their source of energy products,
basically gasoline and diesel oil, to supply their farm
member-owners . Seeking to find a secure source of such
products , the cooperatives formed ECI and acquired an
Arco-Sinclair refinery in East Chicago, Illinois. At the
time ECI acquired the involved refinery in 1976, it
agreed to honor the contract that existed between Arco,
the previous owner, and the Union , as it pertained to the
involved refinery . For many years prior to that purchase,
and at all times material , Local 7-210 has been recog-
nized as the bargaining representative of a unit of pro-
duction and maintenance employees and a unit of clerical
employees employed at the refinery. Successive collec-
tive-bargaining agreements between the Local and the
respective owners of the refinery have historically con-
formed with an industrywide bargaining program or pat-
tern developed by the Oil, Chemical , and Atomic Work-
ers International Union . The most recent collective-bar-
gaining agreement entered into by Respondent, the
Local, and the International Union went into effect on
January 8 , 1979. Article XXXI provided for the reopen-
ing of negotiations on wages, health care benefits, and
vacations no earlier than November 1 , 1979. The reopen-
ing provision provided that in the event the parties could
not reach agreement the International and the Local had
the right to engage in an economic strike subsequent to
January 8, 1980.
Pursuant to appropriate notice, Respondent ECI and
Local 7-210 commenced negotiations on the reopened
subject . The two meetings and other communications be-
tween the parties during the period from November 1,
1979, through January 7 , 1980, focused on efforts to
exempt Respondent from any industrywide strike action
called by the International , on Respondent 's assurance to
conform to any pattern established for the industry in ne-
gotiations to settle a strike . Neither of the parties antici-
pated the strike at Respondent 's refinery even if the
International called an industrywide strike on or after
January 8, 1980.
At a meeting called by Local 7-210 Secretary-Treasur-
er Dean Bainbridge , on January 7, 1980 , for the same
afternoon , Bainbridge presented Respondent's manager
of industrial relations, Barry Brock , with a copy of a
notice from the International 's president that Local 7-
210 would strike Respondent on January 8, 1980. Brock
testified that he announced to the Local in 1978 a com-
pany policy that S and A benefits , among others, would
be cut off in the event of a strike . Brock reiterated the
policy at the January 7 meeting with Bainbridge. Bain-
bridge had earlier opposed Respondent 's stated policy
and again at the meeting opposed Respondent 's intention
to cut off the S and A benefits for those employees on
medical leave . He also questioned Brock about Respond-
ent's handling of insurance premiums . Bainbridge was
told by Brock that he would get back to him on the issue
of premiums . On January 8, 1980, at 4:15 p .m., the strike
commenced.
Prior to and on January 8, 1980 , the 10 production and
maintenance unit employees and the clerical employee
named in the complaint were absent from work on medi-
cal leave due to physical disabilities . Each had been re-
ceiving contractual S and A benefits prior to that date.
Immediately on commencement of the strike , as admitted
by Respondent, it terminated payment of S and A bene-
fits to these 11 employed.
During the strike, Mary Kasperek died , and Harry
Wickhorst received medical certification of recovery.
The other nine employees involved remained physically
disabled and were unable to work for the duration of the
strike . Throughout the negotiations to settle the strike,
the Local urged Respondent to reinstate the S and A
benefits to those employees who had been receiving
them prior to the strike . Ultimately, the strike was settled
on April 12 , 1980, and Respondent resumed payment of
S and A benefits to the nine employees who were still
disabled . The Local, on behalf of its employees , includ-
ing employees named in the complaint, entered into a
memorandum of agreement in which Respondent was re-
leased of all liability for its actions in relation to the
strike, including alleged and potential unfair labor prac-
tices. Employees Andrew Habzansky and Harry Wick-
horst participated in the ratification vote for approval of
the memorandum of agreement , which ended the strike.
B. Employer's Defenses
The General Counsel urges that the controlling case
with respect to the subject matter involved in this pro-
ceeding - is Emerson Electric Co., 246 NLRB 1143 (1979).
The Board , in Emerson Electric, affirmed with modifica-
tions the recommended Order of an administrative law
judge, holding that employees receiving sickness and dis-
ability benefits at the outset of the strike were, in gener-
al, entitled to continue to receive such benefits during
the course of the strike unless such employees publicly
declared their support for the strike. In the face of Emer-
son Electric , Respondent in this proceeding has raised a
642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
number of defenses, none of which I find valid. These
defenses will he discussed below in the order that ap-
pears most logical, though not necessarily in the order of
their importance.
1. Respondent contends that the Board should have
deferred this proceeding for arbitration. Relying on Gen-
eral American Transportation, 228 NLRB 808 (1977), Re-
spondent urged that the instant case be deferred under
Collyer Insulated Wire, 192 NLRB 837 (1971). Respond-
ent's reliance is misplaced. In General American Transpor-
tation , the Board clearly stated its opposition to deferral
in cases alleging violations of Section 8(a)(3) of the Act.
The instant case involves individual protected rights aris-
ing out of the Act and neither Respondent nor the Local
had ever indicated willingness to arbitrate the issues
raised here. The Board has affirmed an administrative
law judge's decision that issues similiar to those raised in
this proceeding are not appropriate for deferral. Kansas
City Power & Light Co., 244 NLRB 620 (1979). I find that
the issues involved should not be deferred for arbitration
and find that they are properly before the Board.
2. Respondent asserts that Emerson Electric establishes
an unconstitutional irrebutable presumption in violation
of due process rights under the 14th Amendment to the
United States Constitution to the extent that the Board
has established a presumption that an employer violates
the Act when it terminates its payment of existing S and
A benefits to disabled employees during a strike. This ar-
gument is apparently directed at another forum and will
not be discussed at length. However, I do not believe
that the Board established an irrebutable presumption in
Emerson Electric. If it had proper proof, Respondent
could have shown that it acquired information that indi-
cated that the employees whose benefits are to be termi-
nated had affirmatively acted to show public support for
the strike and, having acquired this information, and
acting on it , terminated the benefits. As will be demon-
strated, the applicant has not made such a showing, and
failure to do so does not demonstrate that it was denied
its due process rights, only that it violated the Act.
3. Respondent raised as an affirmative defense and
motion to dismiss paragraph 8 of the memorandum of
agreement executed by Local 7-210 and Respondent in
settlement of the strike. In pertinent part, paragraph 8
provides that neither party to the memorandum will file
any charges with the National Labor Relations Board as
a result of the strike. At the hearing, Respondent indicat-
ed that paragraph 8 directly related to paragraph 6 of
the memorandum in which the parties agreed that Re-
spondent would pay its portion of the insurance premi-
ums on behalf of employees during the strike "in consid-
eration of certain benefits not paid as a result of the
strike, and that such payment was in full settlement of
any grievances, NLRB charges or actions pending or in
the future related to the handling of all benefits during
the strike." It is clear that the Board's power to prevent
unfair labor practices "shall not be affected by any other
means of adjustment or prevention that has been or may
established by agreement, law or otherwise," Section
10(a) of the National Labor Relations Act. The memo-
randum of agreement is not binding on the Board and
does not warrant the Board's abdication of its jurisdic-
tion or its obligation to enforce public rights. Emerson
Electric, supra, and cases cited therein; Lammert Indus-
tries Corp., 229 NLRB 895, 924 (1977). Respondent's
motion is denied.
4. Respondent urges strenuously that Emerson Electric
is not controlling and diapositive of the issues in this pro-
ceeding as the instant case may be distinguished on its
facts from Emerson Electric. In Emerson Electric, supra at
3, the Board stated: "in rejecting this rationable, we con-
clude that an employer may not rely on such speculative
grounds to justify the termination of existing disability
benefits to employees which, as found here by the ad-
ministrative law judge, had accrued to them as a result of
past work performed." In the instant proceeding Respond-
ent argues that the S and A benefits involved are not
"accrued as a result of past work performed," within the
meaning of Emerson Electric. Respondent urges that the
collective-bargaining agreement provides that S and A
benefits are wages, and that an employee is qualified so
that the wages become due and owing if
(a) The employee is medically certified as being tem-
porarily disabled and unable to work.
(b) The employee was normally scheduled to work
during the period of disability.
The collective-bargaining agreement, article XI, states,
inter alia
1. All regular employees shall receive wages
during periods of physical disability by reason of
sickness and injury, subject to the following rules
and regulations.
8. Payments of wages during periods of physical
disability shall be based on the employee's normal
working schedule. In computing the number of
days' pay an employee is entitled to receive under
this Plan in any calendar year, pay allowance will
be made for the actual number of normally sched-
uled working days within the period of such ab-
sence. Any pay for overtime work shall not be con-
sidered in determining rate of wages for the purpose
of disability payment hereunder.
18. The Plan shall be subject to the Grievance
and Arbitration Procedure of the Articles of Agree-
ment.
Respondent contends that the S and A benefits plan
set forth above is merely a wage continuation plan re-
quiring that an employee actually be scheduled to work
during the period of his or her disability to receive bene-
fits. Respondent argues that because no union members
were scheduled to work during the strike, none of the
discriminatees were entitled to continue to receive bene-
fits during the strike. In support of its position, Respond-
ent argues that because paragraph I refers to benefits as
"wages", and paragraph 8 refers to the employees
"normal work schedule" and paragraph I denies pay-
ments of benefits to disabilities commencing during a va-
cation, leave of absence, or layoff, an employee must be
actually scheduled to work to receive benefits under the
plan.
ENERGY COOPERATIVE 643
I disagree. Paragraph 3, article XI, provides for great-
er benefits for more senior employees, demonstrating to
me the benefits are paid to employees for work per-
formed by them in the past, not in the present. When
viewed in conjunction with paragraph 9, article XI, and
the context of the entire contract, I find that the refer-
ence in paragraph 8, article XI, to an employee's normal
work schedule describes the basis on which an employ-
ee's benefits are computed, rather than requiring an em-
ployee to actually be scheduled to work a particular day
to receive benefits. Various other provisions of the con-
tract contain similar language to establish norms for the
employees' hours of work and rates of pay. Article VI of
the contract defines the "regular schedule work hours"
and the "regular" workweek for day employees and shift
employees. Article VIII provides for pay differentials for
shift employees "regularly assigned" to shift work. Arti-
cle IV discusses the effect of a temporary assignment of
an employee to a job classification other than "regularly
assigned classification." It appears that an employee
could become disabled while working in a classification
or during hours other than those in which the employee
normally works. In that event, article XI provides that
benefits will be based on an employee's "normal work
schedule." Moreover, article IX, on vacations, also sets
out the basis for computation of the employees' vacation
pay in substantially similar language to paragraph 8, arti-
cle XI. It would be illogical to argue that to get vacation
pay an employee must actually be scheduled to work at
the time that employee is scheduled to take vacation be-
cause the amount of vacation pay is based on the "regu-
larly scheduled workweek, exclusive of overtime."
As noted in the General Counsel's brief, the record is
vague with respect to Respondent's operations to the
extent that disabled employees are literally scheduled to
work during their absence. It appears that while disabled
employees are listed somewhere in order to retain their
seniority in rank on a particular process crew or unit, an-
other employee is temporarily transferred to that crew
or unit to perform the scheduled work. Moreover, bene-
fit checks are automatically prepared by the payroll de-
partment by computer from information about the em-
ployee's regularly scheduled workweek and rate of pay
without regard for whether the employee is actually
"scheduled" for work. Testimony of Respondent's em-
ployees establishes that the work schedule utilized during
the course of the strike was prepared by Respondent in
1978 in anticipation of a strike and only contained the
names of management personnel or personnel recruited
from outside the refinery. No unit employees were in-
cluded in that work schedule, even though Respondent
admitted it had no idea how widespread support would
be before the strike.2 Moreover, there is no evidence in
2 In other testimony elicited by Respondent , it has taken the position
that it believed the strike would be widespread because of the past histo-
ry of strikers against the involved refinery Based on research by some of
its employees of earlier strikes , it appears that no refinery employee had
ever crossed a picket line established by the Local As noted earlier,
however, none of the responsible personnel of Respondent had any actual
strike experience with the Local.
the record that failure to be "scheduled" to work during
the strike affected unit employees' rights or benefits in
respects any other than those at issue in this proceeding.
I believe the record clearly demonstrates that the sick-
ness and disability benefits plan involved provides bene-
fits to sick and disabled employees when they are phsi-
cally unable because of past work performed. An argu-
ment similar to that made above by Respondent in this
case was rejected by the administrative law judge in Em-
erson Electric. In Emerson Electric, the administrative law
judge found that S and A benefits which, as described in
his decision appear very similar to those at issue in the
instant case , accrue to employees, who were receiving
them at the start of a legitimate economic strike of other
employees. As the administrative law judge's analysis
and findings in this respect were upheld by the Board on
review, I conclude that the S and A benefits here in-
volved are "accrued" benefits within the meaning of Em-
erson Electric.
In a related defense, Respondent urges that it did not
rely on speculative grounds to justify the termination of
existing disability benefits to its employees and that it
had a legitimate business reason for terminating such
benefits. Respondent urges that the Board has failed to
carry its burden of proof imposed in NLRB Y. Great
Dane Trailers, 388 U.S. 26 (1967). It urges that Great
Dane clearly holds that there must be proof that an em-
ployer's actions fall within one or two categories before
an 8(a)(3) unfair labor practice can be sustained. There
must be proof that the employers' conduct was "inher-
ently destructive" of employees' rights, or that the harm
resulting from the employer's action was "comparatively
slight." Respondent argues that because the named dis-
criminatees were not entitled to wages for S and A bene-
fits under the provisions of the collective-bargaining
agreement for the reasons set out above, there was no
adverse impact on employees that can in any way be
held to be "inherently destructive." or to have a "com-
paratively slight" impact on those employees' rights.
Respondent states on brief that the Board in Emerson
Electric, supra, found, by inference, that the employer's
actions in that case were "inherently destructive" of em-
ployees' rights for several stated reasons . A review of
the Board's decision in that proceeding will reveal that
the reasons stated by Respondent were not mentioned by
the Board, although they formed part of the reasoning
underlying the decision reached by the administrative
law judge. However, even if Respondent is correct that
such reasons are necessarily implicit in the Board's deci-
sion , I believe all material aspects of Emerson Electric,
which led to the Board's ultimate decision there, are also
present in the instant case . The reason believed material
by Respondent are
(a) Because the collective-bargaining agreement pro-
vided for payment of S and A benefits during the course
of the strike due to the accrued and vested nature of
those benefits.
(b) Because the employer had been notified prior to
the strike by the Union that certain employees receiving
S and A benefits would not be participating in the strike.
644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(c) Because a number of employees receiving S and A
benefits prior to the strike called the employer shortly
after the strike and protested the denial of S and A bene-
fits, specifically indicating to the Company that they
were not in fact participating in the strike.
(d) Because the employer terminated S and A benefits
before there was any showing of how widespread the
strike would be.
(e) Because the employer relied on speculative
grounds to justify the termination of those benefits to the
employees.
Respondent urges that none of the facts are present in
the record of this proceeding. I disagree. First, I have al-
ready found that the S and A benefits involved are ac-
crued and vested benefits, at least within the meaning of
Emerson Electric. Although Respondent may not have
been notified specifically prior to the start of the strike
that the involved discriminatees were excused from work
by their sickness or injuries. Certainly, there is nothing in
this record to indicate that at the outset of the strike Re-
spondent had any positive knowledge that any of the dis-
criminatees intended to participate in the strike.3
I believe that the Board's decision in Emerson Electric
requires that an employer have some positive knowledge
or proof that employees in the position of the discrimina-
tees in this case actively intend to support a strike rather
than placing a burden on the employees to expressly dis-
avow the strike to the employer in order to continue to
receive their benefits during the course of the strike.
Regarding Respondent' s reason in paragraph (c), at
least one discriminatee, Harry Wickhorst, notified a re-
sponsible management person on January 9 that he was
not withholding his labor from the Respondent, but that
he was off sick. This discriminatee was informed that his
position made no difference whether he would get his
benefits. As in Emerson Electric, the Employer Respond-
ent in this proceeding did terminate the S and A benefits
before there was any showing of how widespread the
strike would be and, in my opinion, Respondent relied
on speculative grounds to justify the termination of those
benefits to the employees. It appears that the decision to
terminate the benefits was made well prior to the actual
institution of the involved strike or notification that a
strike was imminent.
a Evidence was adduced that the Local prepared picket rosters from
Respondent's seniority list, which included the names of all the discrimin-
atees except Mary Kasperek. While it appears that these picket rosters
were distributed among employees and/or posted at the refinery, there is
no evidence that shows that management personnel of Respondent were
aware of these rosters at the time that Respondent made or implemented
its decision to terminate the disability benefits or that they played any
role in the decision-making process. The picket rosters were amended
shortly after the onset of the strike to reflect that the discriminatees were
not participating in the picketing. Similarly, Respondent offered into evi-
dence a copy of the Local's bylaws obtained from the Local pursuant to
a pretrial subpoena to show that all union members were required to be
supporters of any strike action. However, art. IV, sec. 4(8), of the bylaws
merely permits the Local to take disciplinary action against members
who engage in conduct that tends to render prosecution of a strike.
There is no record evidence that Respondent's management was aware of
the bylaws when a decision was made to terminate the disability benefits.
Moreover, such provision is inadequate to prove that employees affirma-
tively acted to support the strike, especially in view of the Local's protest
of the termination of the S and A benefits to employees who were dis-
abled at the start of the strike.
Even if a legitimate business purpose for termination
of existing S and A benefits rebuts a presumption of dis-
criminatory motivation in accordance with the principles
set forth in NLRB v. Great Dane Trailers, supra, I believe
that Respondent acknowledges that the decision to ter-
minate the S and A benefits during the strike had been
grounded in a policy developed by the Respondent in
1978. The policy was implemented in the 1980 strike be-
cause of the following stated reasons:
(1) Although the contract was reopened, the
strike terminated Respondent's obligations under the
contract.
(2) S and A benefits are like wages and Respond-
ent was not obligated by law to finance a strike
against itself.
(3) Respondent was obligated to conserve its re-
sources.
(4) It wanted to prevent fraud by preventing
strikers from attempting to collect benefits by claim-
ing they had suffered a disability during the strike.
Respondent admitted that it had not distinguished
between employees who were disabled prior to the
strike and strikers may have attempted to make ini-
tial claims during the strike.
The S and A benefits issue is accrued benefits, and as
found above, Respondent cannot claim any legitimate
business purposes for its conduct on this ground (par. 2).
The other stated "legitimate business purposes" urged by
Respondent were considered by the administrative law
judge and the Board in Emerson Electric, and rejected,
and I do the same.
5. Respondent also argues that there is ample evidence
in the record to prove that the employees showed public
support for the strike within the meaning of Emerson
Electric, and thus enmeshed themselves in the ongoing
strike activity to such 'an extent as to terminate their
right to continue disability benefits. With respect to dis-
criminatees Sako, Wickhorst, Farrentelli, Dowell, Hab-
zansky, and Siokos, Respondent argues that they publicly
supported the strike by applying for unemployment com-
pensation benefits in March. In each of the instances in
which these discriminatees applied for state benefits, they
indicated on their application forms to the Indiana Em-
ployment Security Division that they were entitled to
benefits for the reason that they were on strike or in-
volved in a labor dispute as of January 8, 1980. Howev-
er, the testimony of these six discriminatees about their
experiences in applying for unemployment compensation
benefits reveals that, in spite of their explanations why
they were applying for benefits, the government officials
who aided them in completing the forms insisted that
they put down that Respondent was on strike as the
reason that they were "unemployed," and that other rea-
sons were unnecessary since all the applications of em-
ployees in the oil industry were being processed togeth-
er. I do not believe that an application for unemploy-
ment compensation benefits constitutes public support for
a strike, where, as here, the employees' benefits were in
dire financial straits because of the discontinuance of
their S and A benefits. Moreover, Respondent did not ef-
ENERGY COOPERATIVE 645
fectively acquire information about these benefits appli-
cations until sometime during the preparation for the in-
stant proceeding.
Respondent also relies on the fact that none of the dis-
criminatees were fined or otherwise disciplined by the
Union for failing to ratify or participate in the strike. It
urges that though employees are not required to declare
their position on the strike to an employer there is noth-
ing to prohibit them from doing so to the Union, and
had they so indicated their position in opposition to the
strike to the Union , disciplinary action would have taken
place . It must be noted that several of the discriminatees
when asked at the hearing whether they did support the
strike replied in the negative . I believe this to be immate-
rial in any event . The discriminatees are not required by
the Board 's decision in Emerson Electric to publicly dis-
avow the strike to continue to receive disability benefits,
only to refrain from publicly supporting the strike.
Again , knowledge of whether the Union did or did not
discipline the discriminatees for failure to support the
strike would not come into the hands of Respondent
until after the end of the strike.
Lastly, Respondent notes that two of the employees
participated in the ratification vote that concluded the
strike, and that each of the employees named in the com-
plaint testified at the hearing that they would not have
crossed the picket line to go to work but for their dis-
ability . Again , such information did not come into the
hands of Respondent until after the end of the strike, and
in any event do not constitute public support for the
strike . As held by the Board in Emerson Electric, a show-
ing of participation in the strike does not justify post hoc
Respondent 's initial termination of benefits to the discri-
minatees . Any employee , disabled or sound , who affirma-
tively demonstrates his support of the strike by picketing
or otherwise showing public support for the strike, has
enmeshed himself in the ongoing strike activity to such
an extent as to terminate his right to continue disability
benefits. The employees' actions in support of the strike,
however, may not be used to deprive them of any bene-
fits for time away from work prior to their supportive
action . Based on the evidence presented in this case, I
find that none of the discriminatees participated in the
strike or lent public support for the strike within the
meaning of Emerson Electric.
IV. THE REMEDY
Based on these findings and conclusions , I ultimately
find and conclude that Respondent did engage in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) and ( 1) of the Act. It having been found
that Respondent unlawfully withheld S and A benefit
payments to the discriminatees 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 January 8 to April
12, 1980 . Mary Kasperek died and Harry Wickhorst was
certified medically able to work during the period of the
strike . They will be paid what S and A benefits were due
to them to the day of their death or recovery.
On the basis of these findings of fact and on the entire
record in this case , I make the following
CONCLUSION OF LAW
By withholding from January 8 to April 12, 1980, pay-
ment of S and A benefits to the employees named in the
complaint , Respondent has engaged in and is engaging in
unfair labor practices affecting commerce within the
meaning of Section 8 (a)(1) and (3) and Section 2(6) and
(7) of the Act.
[Recommended Order omitted from publication.]