Helca Mining Co.

National Labor Relations Board - Board Decisions

Dec 4, 1987

286 N.L.R.B. 1391 (N.L.R.B. 1987)

HELCA MINING CO.
Helca Mining Company and Local 5114, United
Steelworkers of America, AFL-CIO-CLC. Case
19-CA-13583.
4 December 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 17 June 1982 Administrative Law Judge
Richard J. Boyce issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed the brief submitted
to the judge in support of the decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended Order
as modified.2
i We agree with the judge that the Respondent violated Sec . 8(a)(3)
and (1) of the Act by terminating 11 employees ' "Non-Occupational Dis-
ability" (NOD) benefits on commencement of the 22 March 1981 strike,
and continuing nonpayment until the end of the strike on 23 May 1981.
However, we rely on Texaco, Inc., 285 NLRB 241 (1987), rather than
Emerson Electric Co, 246 NLRB 1143 (1979), enfd as modified 650 F.2d
463 (3d Cir 1981). We find that the General Counsel established a prima
facie case of some adverse effect on employee rights by showing the ben-
efits were accrued (i.e., they were due and payable on 22 March 1981
based on past performance) and withheld on the apparent basis of the
strike The Respondent undisputedly discontinued the benefits the 11 em-
ployees were receiving on commencement of the strike. Consequently,
under Texaco, the burden shifts to the Respondent to come forward with
proof of a legitimate and substantial business justification for its cessation
of benefits For the reasons the judge gives, we conclude that neither the
collective-bargaining agreement nor the NOD benefit booklet establishes
that the Union waived the employees' right to receive NOD benefits
when the contract expired Also for the seasons the judge discusses, we
reject the contention that any reasonable and arguably correct interpreta-
tion of the contract and benefit plan permitted the Respondent to suspend
the benefits the 11 employees were receiving before the strike com-
menced Furthermore, again based on factors referred to by the judge,
we find that the Respondent failed to demonstrate actual reliance on Its
alleged nondiscriminatory contract interpretation.
Accordingly , we find it unnecessary to address whether the Respond-
ent's conduct was "inherently destructive" of employee rights
2 We shall modify the judge 's recommended Order so as to make clear
that the entitlement of each of the affected employees to NOD benefits
stops when his/her disability ends, in accordance with the Board 's deci-
sion in Conoco, Inc, 265 NLRB 819 (1982'1, enfd . 740 F 2d 811 (10th Cir
1984) In this regard we note that the judge terminated employee Frank
Johnson 's entitlement to NOD benefits as of 1 April 1981 when he first
performed picket line duty In Conoco, however, the Board held that an
employer cannot limit its remedial liability by showing that a disabled
employee actively participated in strike activity , but that such activity is
one factor to be considered with others in determining when an employ-
ee's disability has ended See also Texaco, Inc, supra at 17 fn 25 We
therefore shall additionally leave to the compliance stage of this proceed-
ing the determination of when the disability of Frank Johnson ended
In accordance with our decision in New Horizons Jor the Retarded, 283
NLRB 1173 (1987), interest on and after 1 January 1987 shall be comput-
ed at the "short-term Federal rate" for the underpayment of taxes as set
out in the 1986 amendment to 26 U .S.C. § 6621 Interest on amounts ac-
crued prior to I January 1987 (the effective date of the 1986 amendment
to 26 U S C § 6621) shall be computed in accordance with Florida Steel
Corp., 231 NLRB 651 (1977)
1391
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Helca Mining Company, Mullan, Idaho,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
"(a) Discriminating against and coercing employ-
ees in the exercise of their right to engage in or re-
frain from engaging in union and other protected
concerted activities, including the right to strike,
by withholding payments of accrued Non-Occupa-
tional Disability benefits; provided, however, that
the employee's entitlement stops when the disabil-
ity ends."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT coerce or discriminate against you
in the exercise of your rights to engage in or re-
frain from engaging in union and other protected
concerted activities, including the right to strike,
by withholding payments of accrued Non-Occupa-
tional Disability benefits while you are disabled.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make the following employees whole,
with interest, for Non-Occupational Disability ben-
efits we unlawfully denied them during the strike
that began 22 March 1981: Hugh Campbell, Roy
Christensen, Ed Fitzgerald, Dwayne Gust, Vanner
Hegbloom, Craig Johnson, Frank Johnson, James
Lange, Lyle Nickell, Cecil Truitt, and Tim Wild.
HELCA MINING COMPANY
Patti L. Hunter, Esq., for the General Counsel.
William F. Boyd, Esq. (Brown, Peacock, Keane & Boyd),
of Kellogg, Idaho, and Michael B. White, Esq., of Wal-
lace, Idaho, for the Respondent.
Lavern A. Melton, of Wallace, Idaho, for the Charging
Party.
286 NLRB No. 132
1392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. This
matter was tried before me in Coeur d'Alene, Idaho, on
April 22, 1982. The charge was filed May 26, 1981, by
Local 5114, United Steelworkers of America, AFL-
CIO-CLC (the Union). The complaint, dated June 25,
1981, and amended during the trial, alleges in substance
that Helca Mining Company (Respondent) discontinued
the payment of Non-Occupational Disability benefits to
11 named employees on the advent of a strike beginning
March 22, 1981, withholding such payments for the
strike's duration, thereby violating Section 8(a)(1) and (3)
of the National Labor Relations Act (the Act).
1. JURISDICTION
Respondent, a Washington corporation, is engaged in
the mining of silver at the Lucky Friday Mine in Mullan,
Idaho. Its annual revenues exceed $500,000, of which
over $50,000 comes from customers outside Idaho. Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED MISCONDUCT
A. Facts
The Union has represented the production and mainte-
nance employees at Respondent's Lucky Friday Mine
since about 1955. The most recent past bargaining agree-
ment covering those employees expired March 21, 1981.
The next day, a strike was called in aid of the Union's
position in the negotiation of a new agreement. The
strike lasted to May 23, 1981, and closed down the mine.
Among the provisions of the just-expired agreement
was a so-called Non-Occupational Disability Plan, under
which Respondent made weekly payments to employees
unable to work because of certain disabilities incurred off
the job. According to the agreement, the benefit was
$115 per week as of March 25, 1978, increasing annually
thereafter as dictated by the consumer price index. It
was $142. 15 at times here relevant.
The 11 employees named in the complaint' were re-
ceiving weekly payments under the plan to the time of
the strike. With the strike's onset, payments were discon-
tinued, not to resume during the strike.
The Union promptly challenged the discontinuance.
Arthur Brown, Respondent's vice president of oper-
ations, replied by letter dated April 1, stating in pertinent
part:
The intent of the article [setting forth the plan] is
for the purpose of providing benefit in lieu of wages
' Hugh Campbell , Roy Christensen , Ed Fitzgerald , Dwayne Gust,
Vanner Hegbloom , Craig Johnson , Frank Johnson , James Lange, Lyle
Nickell , Cecil Truitt , and Tim Wild.
during a period when the employee is disabled due
to illness conditions. Currently, there are no wages
being paid to any of the hourly employees due to
the strike called for by [the Union]. Therefore, the
intent of compensating the disabled employees for
loss of wages is non-existent. .. .
In addition . . . I would ask you to refer to the be-
ginning sentence of the article, which states that
during the term of this agreement disability pro-
gram shall exist. The agreement, having expired,
therefore no longer would provide the benefits as
mentioned.
The "beginning sentence of the article," to which
Brown's letter referred , stated:
During the term of this Agreement a disability pro-
gram shall exist for the benefit of employees, with
the cost thereof to be paid by the Company. [Em-
phasis added.]
It was Brown 's decision to discontinue the payments.
He testified that it was "purely a business decision," his
"primary concern" being "to minimize costs" during the
strike ; and that it was not calculated to place economic
leverage on the Union in support of Respondent 's stance
in negotiations . Brown further testified , in seeming con-
tradiction of the second of the two arguments made in
his April 1 letter , that the payments would have contin-
ued, regardless of the expiration of the agreement, but
for the strike.
Brown, as a witness , made the additional assertion, not
contained in his April 1 letter , that "looking at" a sum-
mary-of-benefits booklet given by Respondent to the em-
ployees and to the Union , which he professedly had "as-
sumed" to be "part of' the agreement , "it was obvious to
[him] . . . that the . . . benefits could be cut off." His
reference was to a passage in the booklet , stating:
In the event of stoppage of work due to a strike,
your coverage , except for the Weekly Disability Bene-
fits, will continue for the entire period of the dis-
pute. [Emphasis added.]
The booklet on its face did not purport to be part of
the agreement. Its concluding paragraph stated that it
was "an illustration of benefits-not a contract." Nor is
there evidence otherwise that it was deemed binding on
the Union .2 But even if Brown's avowed assumption
9 Mark Grubham , the Union 's president, testified credibly and without
refutation that the Union had nothing to do with the language contained
in the booklet, and that , during negotiations in 1978 leading to the just-
expired agreement , Respondent "wouldn't agree to" the Union's request
that the practice of issuing such booklets as documents apart from the
agreement cease William Hayes, the Union 's financial secretary and
former 16-year president, corroborated Grubham , elaborating that the
Union sought elimination of the booklets "to stop the confusion" of
having a document other than "the main agreement " Lavern Melton,' a
staff representative for the Union, likewise testified that the booklet "was
not a document negotiation between the Union and the company " While
the booklet plainly issued under Respondent's auspices , there is no evi-
dence of the process underlying its formulation . Grubham , Hayes, and'
Melton all testified to a belief that it was developed by Respondent and
the insurance carrier providing the employees ' medical and dental cover-
ages
HELCA MINING CO.
were correct, his decision supposedly based thereon
overlooked another passage in the booklet, in a section
descriptive of the Non-Occupational Disability Plan. It
stated:
Should any employee off work due to a strike
obtain other employment and be covered under any
other group insurance plan, the benefits under this
plan will terminate. [Emphasis added.]
Applying the basic tenet that the elements of a document
are not to be construed as conflicting if they can be har-
monized by a plausible alternative reading, it must be
presumed that neither passage canceled the other; rather,
that the latter defined the exception embodied in the
former.
Respondent paid Non-Disability benefits during a 3-
week strike between agreements in 1978. The article set-
ting forth the Non-Occupational Disability Plan in the
expired agreement in that instance apparently contained
the same "during-the-term-of-this-Agreement" prefacing
as did the agreement now in issue.3 In addition, the sum-
mary-of-benefits booklet then extant contained both of
the passages, discussed above, appearing in the booklet
now under scrutiny. The employees continued to receive
medical and dental benefits during the 1981 strike, as
prescribed by the expired agreement. The article provid-
ing for those benefits also began, "During the term of
this Agreement."
Brown testified that when he made the decision to dis-
continue the Non-Occupational Disability payments, he
did not know which or how many employees would be
affected; indeed, that he "did not know these names until
they were placed in front of" him during the trial.
Brown added that he had "no idea" if any of the affected
employees "participated in the picketing" or otherwise
participated "in any way in the strike." Further in this
regard, Respondent states in its brief-
[I]t was not until after the strike was settled and the
complaint in this case was filed that the company
made an investigation to determine whether any of
the employees in issue had participated in the strike.
Similarly, Respondent made no inquiry during the
strike into the continuing disability of the 11 employees
in question. As explained by John Langstaff, personnel
manager, "They were not receiving benefits, and there
was no reason to make a check." Two of the 11 employ-
ees received medical releases to return to work before
the strike was over, Roy Christensen on April 13 and
Frank Johnson on April 20. At least eight of the remain-
ing nine employees obtained releases soon after the
strike's end-five on May 26, two on May 28, and one
on June 1. When Vanner Hegbloom was released cannot
be ascertained, the document in evidence being illegible
in that particular.
Except for Frank Johnson, who began performing
picket duty April 1, none of the affected employees
8 The only evidence in this regard is the testimony of Mark Grubham,
the Union's president, that he "believe[d]" this same language "probably"
was in the earlier agreement.
1393
served in any strike-related capacity for the Union either
at or away from the picket sites . Eight employees, aside
from Johnson, visited those on picket duty from time to
time . Hegbloom stopped by frequently throughout the
strike, the mine being along his jogging path from
Mullan to Shoshone Park, and Lyle Nickell made per-
haps eight visits en route between home and a tavern he
regularly patronized. No one else visited more than three
or four times, and two-Christensen and Dwayne
Gust-made no visits at all.4
These visits, nearly always social in purpose, seldom
lasted more than a few minutes. Their purpose, when not
social , was to gain information about the status of negoti-
ations or to convey a personal message to someone on
picket duty. Members of management also chatted social-
ly at times with those on picket duty, one of whom-Mi-
chael Gross, mine-unit manager-sometimes alit from his
car to do so. Inasmuch as those on picket duty did not
actually carry signs, there was nothing tangible to distin-
guish them from their visitors.
After learning that their disability benefits had been
discontinued , some if not all the affected employees
signed up for and began receiving strike benefits. Lavern
Melton, a staff representative for the Union, explained:
The people who were on disability going into a
strike are not eligible for strike benefits... .
[W]hen the employees came in and explained they
were cut off of benefits and had no income, we ad-
vised them they were eligible for strike benefits, and
they did sign up for strike benefits.
Hegbloom , being the Union's recording secretary, at-
tended union meetings throughout the strike. He testified
that he was "too busy taking notes" to participate to any
great extent otherwise in the meetings.
B. Conclusion
In Emerson Electric Co., 246 NLRB 1143 (1979), the
Board stated at 1144:
[F]or 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 em-
ployee whose benefits are to be terminated has af-
firmatively acted to show public support for the
strike.
In the present case, not only is there no evidence that
any of the affected employees had made a public show-
ing of strike support before their disability benefits were
discontinued, but Respondent concededly made no at-
tempt to acquire information in that regard until well
after the strike had ended. It is concluded, therefore, that
the discontinuance of the benefits, coincident with the
strike's onset, violated Section 8(a)(1) and (3) as alleged.
Emerson Electric Co., supra. See also Sherwin - Williams
4 Christensen and Gust , respectively , are credited as against the con-
trary testimony of Edward Decker, Respondent 's mine foreman, that
they did not visit the picket sites
1394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Co., 260 NLRB 1321 (1982); Texaco, Inc., 260 NLRB
1192 (1982); Texaco Oil Co., 259 NLRB 408 (1981); and
Walter Motor Co., 256 NLRB 1056 (1981).
Respondent's "primary contention"-that "it did ex-
actly what was permitted by the labor-management
agreement"-is rejected. Neither the "during-the-term-
of-this-Agreement" lead-in, nor any other language in
the article of the expired agreement setting forth the
Non-Occupational Disability Plan, warrants the conclu-
sion that the parties meant to relieve Respondent of its
obligation of the agreement.
Such a conclusion would presuppose that the Union
had waived its right to bargain over the postexpiration
discontinuance of the benefit. Apart from the failure of
the lead-in clause to bespeak such a waiver in the requi-
site "clear and unmistakable" terms ,5 other evidence-
Brown's admission that postexpiration payments would
have been made had there not been a strike; the fact of
payments during the 1978 strike, apparently despite the
same prefactory language ; and the nonsuspension of
medical and dental benefits during the 1981 strike, in the
face of the same language-militates resoundingly against
waiver.
Further, as earlier discussed, there is no basis for treat-
ing the summary-of-benefits booklet as binding on the
Union; and, even if there were, a proper regard for all of
its provisions hardly supports Respondent's position.
Unpersuasive, as well, are Respondent's subsidiary ar-
guments-that there had been no showing that its action
was unlawfully motivated; and that the benefits in ques-
tion were not "accrued benefits," but rather were akin to
wages and medical and life insurance premiums, "where
the law is clear [that] discontinuance of payment is per-
mitted" during a strike. Emerson Electric Co. and the
other cases cited above, none of which is distinguishable
from the present case in fundamental principle, defeat
these arguments, if not expressly, by necessary implica-
tion.
CONCLUSION OF LAW
By discontinuing the payment of Non-Occupational
Disability benefits on the advent of a strike, as found
here, Respondent violated Section 8(a)(1) and (3) of the
Act.
REMEDY
The 11 employees in question are to be made whole
with interest for payments unlawfully denied them;
which is to say, those accruing from the strike's onset
until their disabilities ended or they earlier "affirmatively
demonstrate[d] support of the strike by picketing or oth-
erwise showing public support for the strike." Emerson
Electric Co., 246 NLRB 1144.
The entitlement of Frank Johnson therefore ceased
April 1, if he then was still disabled, when he first per-
formed picket duty.6 On the other hand, the sundry
6 Cf Sherwin-Williams Co, 260 NLRB at 1323 fn. 3, Texaco Oil Co.,
259 NLRB at 416; Wayne's Dairy, 223 NLRB 260, 264-265 (1976).
6 While logic perhaps suggests-as does the General Counsel in her
brief-that one improperly denied benefits should be treated as an unfair
labor practice striker upon thereafter enmeshing himself in a strike, and
visits to the picket sites by all but two of the others,
mainly for social purposes, "were not a sufficient mani-
festation of public support" for the strike to cause a toll-
ing of entitlements. Texaco Oil Co., supra at 259 NLRB
409. The receipt of strike benefits, postdating precipita-
tion by the unlawful severance of disability payments,
likewise was not a disqualifying display of public sup-
port. Texaco, Inc., 260 NLRB at 1197.7 The same is true
of Hegbloom's attendance at union meetings during the
strike. Sherwin-Williams Co., 260 NLRB at 1323; Texaco,
Inc., 260 NLRB at 1197.
Still in need of clarification is when the several disabil-
ities in fact ended. As earlier noted, two received medi-
cal releases during the strike, with at least eight of the
remainder obtaining them soon after the strike's end.
Given the substantial possibility that some or all of the
affected employees obtained their releases when it suited
their convenience or the desire to return to work after
the strike, rather than promptly upon overcoming their
disabilities, the question when each was medically able to
return to work shall be left to the compliance stage.
Texaco Oil Co., 259 NLRB at 406-408.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Hecla Mining Company, Mullan,
Idaho, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Denying Non-Occupational Disability benefits to
any employee during a strike, when that employee was
receiving such benefits to the time of the strike: provid-
ed, however, that the employee's entitlement stops when
either his/her disability ends, or he/she becomes an
active particular in or otherwise publicly supports the
strike.
(b) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make the following employees whole, with inter-
est,9 for Non-Occupational Disability benefits it unlaw-
fully denied them during the strike that began March 22,
1981: Hugh Campbell, Roy Christensen, Ed Fitzgerald,
Dwayne Gust, Vanner Hegbloom, Craig Johnson, Frank
should not thereby cause the tolling of his entitlement , Member Jenkins'
partial dissent in Emerson Electric Co, 246 NLRB at 1145-1146, and the
majority's remarks concerning it, at 1144 fn 8, establish beyond a doubt
that the Board is unpersuaded.
7 In Texaco, Inc., unlike the present case, none of the disabled employ-
ees took the initiative to obtain strike benefits . This distinction does not
compel a different outcame
9 All outstanding motions inconsistent with this Order are denied If no
exceptions are filed as provided by Sec 102.46 of the Board 's Rules and
Regulations, the findings , conclusions, and recommended Order shall, as
provided in Sec 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
9 Interest shall be as provided in Olympic Medical Corp, 250 NLRB
146 (1980), and Florida Steel Corp, 231 NLRB 651 (1977). See generally
Isis Plumbing Co., 138 NLRB 716 (1962)
HELCA MINING CO.
Johnson, James Lange, Lyle Nickell, Cecil Truitt, and
Tim Wild.
(b) Preserve and make available to the Board or its
agents , on request, all records necessary to analyze the
amounts due under the remedial order.
(c) Post at its Lucky Friday Mine , Mullan, Idaho,
copies of the attached notice marked "Appendix."10
Copies of the notice, on forms provided by the Regional
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."
1395
Director for Region 19, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.