Southwestern Electric Power Co.

National Labor Relations Board - Board Decisions

Feb 11, 1975

216 N.L.R.B. 522 (N.L.R.B. 1975)

522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southwestern Electric Power Company and Interna-
tional Brotherhood of Electrical Workers. Cases
15-CA-5025, 15-CA-5033, and 15-CA-5037
February 11, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLO
On July 31, 1974, Administrative Law Judge Alvin
Lieberman issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
We agree with the Administrative Law Judge that,
on the basis of the facts presented, Respondent did
not violate the Act by treating as strikers the six unit
employees on sick' leave at the beginning of the
strike. Contrary to the assertion of our dissenting
colleague, the issue here is not whether the six
employees had a Section 7 right to refrain from
declaring their position on the strike during the
period that they were medically excused. The issue is
whether Respondent's belief that they ratified and
supported the strike was reasonable. We conclude
that it was.
Approximately I month before the contract being
renegotiated expired, the union membership author-
ized a strike should a new agreement not be reached
by the expiration date. An agreement was not
reached and a strike was called. The strike was nearly
100 percent effective with all but 6 or 7 of the 625
unit employees participating.
At this point, Respondent had no way of knowing
for certain whether the employees on sick leave-all
of whom were members of the Union-did or did not
support the strike activities of their colleagues.
Clearly Respondent could not have interrogated the
employees as to their sympathies without violating
Section 8(a)(l).1 In the absence of any indication
whatsoever that the six employees did not support
the strike, it was entirely reasonable for Respondent
to assume that they did. Moreover, record evidence
indicating that the employees thereafter effectively
i Cf. Farmers ' Cooperative Compress, 169 NLRB 290, 292 ( 1968).
2 Marathon Electric Mfg Corp., 106 NLRB 1171 (1953).
ratified the strike-and thus did, in fact, support
it-bears out the reasonableness of that assumption.
For example, the employees raised no protest when
their sick leave payments were terminated, showed
support for the Union during the strike, and with one
exception testified that they would not have crossed
the picket line had they been able to work when the
strike began. Under such circumstances, we cannot
agree with our colleague's position that Respondent
was required, in effect, to subsidize the strike effort
through continued disability payments until such
time as the employees decided to publicly air their
sympathies.
Neither are we persuaded by our dissenting
colleague's effort to distinguish Marathon Electric2
and Bechtel Corporation,3 or his attempt to charge
Respondent with an 9(a)(3) violation for its contin-
ued payment of disability benefits to employee Cryer
after the strike began . It is true that the strike here
was lawful, whereas the strikes in Marathon and
Bechtel were unlawful. However, a$ the Administra-
tive Law Judge pointed out, the lawfulness of a strike
is irrelevant in determining whether or not a
particular employee has chosen to support that
strike.
Nor do we agree that Respondent's continuance of
disability payments to employee Cryer during the
initial 3 weeks of the strike constitutes "direct
evidence of discriminatory disparate treatment to
discourage union activity within the meaning of
Section 8(a)(3)." Cryer was not a member of the
striking bargaining unit and thus there was no reason
for Respondent to assume he was a striker. Since
Cryer and the six unit employees were not at all
similarly situated vis-a-vis the strike, there is no basis
upon which to predicate a finding of disparate
treatment.
For the foregoing reasons we agree with the
Administrative Law Judge that the complaint should
be dismissed in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
ACTING CHAIRMAN FANNING, dissenting in part:
My colleagues, with minor modification, affirm a
decision which deprives six employees "on continued
3 Bechtel Corporation, 200 NLRB 503 (1972)
216 NLRB No. 88
SOUTHWESTERN ELECTRIC POWER COMPANY 523
sick pay" of that pay during a lawful strike by their
bargaining unit . I cannot agree.
Respondent's opening statement at the hearing
describes the policy thus: "Under the unique
situation prevailing, employees at Southwestern
Electric Power Company, Inc., receive a continua-
tion of wages for certain periods of time if their
absence is as a result of illness." Pursuant to this
policy, six employees were on sick pay when the
strike began on August 31. All had had surgery
during August, except one who had a kidney
removed on July 31. Two were in the hospital when
the strike started, and another was considered by his
doctor to be totally disabled until September 17. The
medical releases of the six to return to active duty
ranged in time from September 24 to December 10,
the day the strike ended.
Because the six did not notify the Respondent that
they were not on strike, the Administrative Law
Judge found that the Respondent was justified in
considering them strikers and stopping their wages.
My colleagues reach the same result for their own
reasons, to wit: without interrogation, the Employer
had no way of knowing whether these employees
supported the strike, hence it was reasonable to
assume that they did.
In my view the resulting decision, whether based
upon the, rationale of the majority or of the
Administrative Law Judge, is a clear violation of the
Section 7 rights of these employees.
The strike itself was economic and followed
expiration of the former contract and the failure of
the parties to reach agreement on a new contract.
The Respondent takes the simplistic position that,
as wages "under the law" are not continued for
strikers, they are not continued for those on
continuing sick pay unless the recipients disavow the
strike. In essence , my colleagues agree. This ignores
Section 7 and the right of an employee to join in or
refrain from concerted activity. Granted, these
employees on sick leave were entitled to no wages
once their excused absences expired and they failed
4 Marathon Electric Mfg Corp., 106 NLRB 1171 (1953), affd. 223 F 2d
338 (C.A D.C., 1955), cert . denied 350 U S. 981 ( 1955), where the first shift
walked off the job in violation of a no-strike clause and the company
dispatched notices of discharge to "participants" in the strike , thus inviting
response even from those on excused absence at the time ; Bechtel
Corporation, 200 NLRB 503, 513 (1972), which involved 18 employees
associated with a work force of 350 employees that was unwilling to live up
to the no-stoke clause in a construction industry contract The Board, in a
context of repeated violations of that clause , agreed with the Administrative
Law Judge that identification with such a work force was the cause of
discharge , not identification "with the Union"; that the discharges were not
keyed to "protected union or concerted activities but to the unprotected
strikes"; and that "no employee rights that are protected under the Act were
adversely affected ." The excuse of illness at the time of the walkout, urged
as to alleged discriminatee Vereen , was found unavailing for lack of
convincing evidence that illness was the reason for his failure to work on the
day the strike started . Bechtel, supra at 509
5 My colleagues say that employees, though excused from work because
to return to work. It is a far cry for this Board to
require that they disavow legal strike action by their
Union during their sick leave in order to receive their
sick pay. Not only is it contrary to the statute, but it
lacks support in Board precedent. Cases where the
Board has sanctioned the discharge of presumed
strikers in the context of strikes in violation of no-
strike provisions are inapplicable.4
In short, these employees had a Section 7 right to
refrain from declaring their position on this strike
while they were medically excused. That they
exhibited some strike support after medical release,
and testified that if physically able they would have
joined the strike, is irrelevant in my view. To the
extent, however, that some evidenced strike support
by visiting the picket line and/or picketing before
medical release , I would limit the amount of
continued sick pay to the period ending with the date
of such supportive action. I would therefore find an
8(a)(1) violation based on Respondent's interference
with the Section 7 rights of these employees and
order that they be paid the respective amounts of
continued sick pay due them, with the customary
interest.5
There is in this case not only the 8(a)(1) aspect of
Respondent's treatment of the six, but a discrimina-
tory 8(a)(3) allegation as well. A seventh employee,
who, though a union member, was not in the striking
unit, was on continued sick pay because of a July 9
cataract removal. On September 7 he resumed
driving his car, at his doctor's suggestion. His sick
pay was continued by Respondent through September
23. I agree with my colleagues that the discontin-
uance of his pay at that time was due to his refusal
on September 24 to consider seriously the possibility
of coming back to work if his doctor would approve
light duty, in accord with the Employer's sick pay
policy. But the continuance of this employee's sick
pay during the first 3 weeks or so of the strike, as
contrasted with the automatic discontinuance of the
pay of the six employees once the strike in their unit
began, is direct evidence of discriminatory, disparate
temporarily afflicted with serious health problems , should have no option as
to when they "publicly air" their strike sympathy. The Sec . 7 right to refrain
from concerted activities-to which surely employees on excused sick leave
are no less entitled than those actively working-is dismissed from
consideration in deciding this case in favor of a nebulous "belief" by the
Employer that medically excused employees who do not specifically
disavow a protected strike of their unit necessarily support it. The
employees may be lying in the hospital , as two were at the inception of this
strike, but they are presumed to support it. In their hearts, perhaps? In
addition , in the majority view, the Employer 's belief that they do support
the strike becomes "reasonable" when they later show strike support by
overt action. In my view , Sec. 7 cannot be ignored by this type of reasoning
and the presumption that the employees supported it from its inception
cannot be validated simply because they later say they would have crossed
the picket line "had they been able." Until such time as they overtly
supported the strike , they were clearly entitled under Sec. 7 to withhold their
views . Up to such time , the continued payment of sick pay cannot seriously
be deemed a strike subsidy by the Employer
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
treatment to discourage union activity within the
meaning of Section 8(a)(3).6
Thus, I would find 8(a)(1) and 8(a)(3) violations as
to the six, with the indicated reimbursement of their
continuing sick pay to the appropriate dates of
medical release, or appearance on the picket line if
that occurred before medical release.7
a See also N L R B v. Great Dane Trailers, Inc, 388 U.S. 26,32 (1967),
where the Court said - "Discouraging membership in a labor organization
'includes discouraging participation in concerted activities . . such as a
legitimate strike .' Labor Board v Erie Resistor Corp., 373 U S 221, 233
(1963)"
7 The 8(aX3) violations based on withholding sick pay from employees
presumed to be striking , while contemporaneously continuing such pay for
an employee whose unit was not on strike, are too patent for further
discussion.
DECISION
STATEMENT OF THE CASE
1. JURISDICTION
Respondent, a Delaware corporation, is engaged at
Shreveport, Louisiana; Longview and Texarkana, Texas;
and Nashville, Arkansas, in the generation, transmission,
and sale of electricity. During the year ending on
November 29, 1973, a representative period, Respondent's
gross volume of business exceeded $500,000 and Respond-
ent purchased goods valued at more than $50,000 from
vendors located outside the States of Louisiana, Texas, and
Arkansas. Accordingly, I find that Respondent is engaged
in commerce within the meaning of the Act and that the
assertion of jurisdiction over this matter by the National
Labor Relations Board (Board) is warranted. Sioux Valley
Empire Electric Association, 122 NLRB 92, 94 (1958).
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers (Union)
is a labor organization within the meaning of Section 2(5)
of the Act.
ALVIN LIEBERMAN, Administrative Law Judge: The
hearing in this proceeding, with all parties represented, was
held before me in Shreveport, Louisiana, on March 26,
1974, upon the General Counsel's complaint and amend-
ments to complaint,) dated respectively November 29 and
December 21, 1973,2 and Respondent's answer . In general,
the issues litigated were whether Respondent violated
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended (Act).3 Particularly, the principal ques-
tions for decision are as follows:
1. Did Respondent threaten to discharge an em-
ployee and thereby violate Section 8(a)(l) of the Act?
2. Did Respondent violate Section 8(a)(3) and (1)
of the Act by, upon the outbreak of a strike,
discontinuing wages being received by six employees
pursuant to a wage continuation policy?4
3. Did Respondent violate Section 8(a)(3) and (1)
of the Act by, during the strike, discontinuing wages
received by one employee pursuant to the wage
continuation policy?
Upon the entire record,5 upon my observation of the
witnesses and their demeanor while testifying, and having
taken into account the arguments made and the briefs
submitted,6 I make the following:
FINDINGS OF FACT?
i Hereinafter these pleadings will be referred to jointly as the complaint.
2 The complaint was issued pursuant to charges and an amended charge
filed on September 25 and October 2, 1973, by International Brotherhood of
Electrical Workers and its Local 386.
3 In pertinent part these sections provide-
Sec. 8(a) It shall be an unfair labor practice for an employer-
(1) to interfere with , restrain , or coerce employees in the exercise of
the rights guaranteed in section 7,
(3) by discrimination in regard to . . . any term or condition of
employment to encourage or discourage membership in any labor
organization
Sec. 7, insofar as relevant, states:
Sec 7 Employees shall have the right to self-organization, to
III. INTRODUCTION
Briefly, this case is principally concerned with the
discontinuance of wages being paid to six employees
pursuant to a wage continuation policy whereby employees
who are sick and unable to work continue to receive, for
specified periods and under certain conditions, the wages
they would have earned had they been working. Respect-
ing these six, the wages they were receiving under the wage
continuation policy were stopped upon the Union's calling
a strike among the employees in the unit in which they
worked.
The General Counsel contends ii that the six employees
whose wages were stopped at the outbreak of the strike
were not strikers and that the discontinuance of their pay
when their unit struck violated Section 8(a)(3) of the Act.
Taking a contrary position, Respondent argues that
because the six employees did not notify it that they were
not striking they were justifiably treated as strikers not
entitled to wages during the strike.
Also involved in this proceeding, and alleged in the
complaint to have been violative of Section 8(a)(3) of the
Act, is the stoppage, after the strike had been in progress
several weeks, of the wages being received under the wage
continuation policy by a seventh employee, who, although
a member of the Union, did not work in the striking unit.
Further, the complaint alleges, that this employee, in
form, ,loin, or assist labor organizations , to bargain collectively through
representatives of their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection. .
4 The nature of this policy will be discussed below.
5 Errors in the transcript have been noted and corrected.
8 Although all the arguments of the parties and the authorities cited by
them , whether appearing in their briefs or made orally at the trial, may not
be discussed in this Decision , each has been carefully weighed and
considered
r Respondent's motion made at the conclusion of the trial , upon which I
reserved decision , is disposed of in accordance with the findings and
conclusions set forth in this Decision.
9 At the outset of the trial the Union stated that its "position . . . is
identical to that of [the) General Counsel.
SOUTHWESTERN ELECTRIC POWER COMPANY 525
contravention of Section 8(a)(1), was "threatened ... with
discharge if [he] remained a member of the Union or gave
any assistance or support to it."
Respondent denies that this man was threatened.
Concerning the discontinuance of the wages he was
drawing under the wage continuation policy, Respondent's
position seems to be that this was occasioned by his refusal
to perform work he could have done notwithstanding his
illness.
IV. PRELIMINARY FINDINGS AND CONCLUSIONS9
A. The Wage Continuation Policy
In 1945 Respondent , on a noncontractual basis , institut-
ed a wage continuation policy whereby employees who
become sick would continue to receive their full base pay
in lieu of wages they would have earned had they been
doing their normal work , for specified periods of time,
unless sooner released from medical care, notwithstanding
their inability by reason of their illness to perform their
regular duties . The basic details of this policy, as spelled
out in a memorandum issued by Respondent 's president,
are as follows:
The matter of payment of full base pay to employees
who are unable to perform their duties by reason of
sickness comes up from time to time. As you know, our
company has always taken a very liberal policy in
regard to sickness . However, we have made a uniform
policy in regard to how long an employee will be
carried at full base pay by the company.
In order to clarify this, and have it uniform in all
divisions , the following policy will be effective March 1,
1945:
1. Where employee is absent by reason of sickness
for a period of two consecutive weeks, time sheets will
be approved by Local Manager having jurisdiction
over the employee.
2. Where employee is sick for more than two
weeks , but less than six weeks, he can be carried on
payroll at full base pay by the approval of the Division
Manager having jurisdiction over the division in which
the employee works.
3. For payment of any part of employees 's salary
for more than six weeks, it will be necessary to obtain
approval of the President of the Company , in writing,
which approval will specify the amount of salary at
which employee will be carried beyond the six weeks
period , and which approval will terminate at the end of
six-months period, at which time it must reviewed.
Where Division Manager sends in recommendation for
consideration beyond the six weeks period, a full
statement , in writing, of the case should accompany his
request.
9 The purpose of these findings is to furnish a frame of reference within
which to consider the facts relating to Respondent 's alleged unfair labor
practices and the conclusions to which they may give rise. To the extent that
the contentions of the parties relate specifically to the findings made here
they will be treated here , although they , as well as the findings , may again
be considered in other contexts.
As can be seen, the payment of wages under the wage
continuation policy to a sick employee during the time
periods specified in the foregoing memorandum is not
automatic , but conditioned upon the approval of the
employee's local or division manager or Respondent's
president, as the case may be. Among the factors taken
into account in granting or withholding approval are the
employees' length of service, "the type of employee he is,"
the nature of his illness and "how it corresponded with
persons who had . . . illnesses of [the same] type in order
to determine if [the period of the employee 's absence] is
... reasonable." In connection with the last factor,
Respondent's officials "would very often request addition-
al medical information from the doctor involved in order
to make a recommendation as to whether pay should be
extended or not." 10
Finally, where illness is followed by an extended period
of recuperation it is Respondent's practice to provide light
duty to the employee, unless his physician decides, for
medical reasons , that the duty should not be performed.
Absent such a decision, if the employee refuses to perform
the work in question during his convalescence his pay
under the wage continuation policy may be cut off.
B. The Strike
The Union has represented Respondent's operating,
maintenance, and construction employees (OM & C unit)
for 36 years and has represented a unit consisting of
Respondent's clerical employees (clerks unit) since about
March 1973. The penultimate collective agreement be-
tween Respondent and the Union covering the OM & C
unit expired on August 30, 1973.11
Several weeks before the expiration of this agreement,
while negotiations for a new contract were taking place, the
Union's members authorized the Union to strike Respond-
ent upon its termination. Respondent knew that this had
been done.
Pursuant to the foregoing authorization, on August 31
the Union called the OM & C unit out on strike.12 All but
six or seven employees in the unit, whose complement
totaled about 625, answered the Union's strike call.
The strike ended on December 10. While it was in
progress some employees who worked in the clerks unit,
which had not struck, honored the Union's picket lines.
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts Concerning Respondent's Alleged
Violations of Section 8(a)(3) and (1) of the Act by
Discontinuing Wages Being Received by Six
Employees Pursuant to the Wage Continuation Policy
On August 30, 1973, and for various periods of time
before that date, Charles Cain, Sam Cascio, J. C. Hodges,
Robert Matthews, Glenn Rhodes, and Taylor Williamson
(collectively referred to hereinafter as the Six), employed in
10 My findings in this regard are based upon , and the quotations
appearing in the text are taken from , credited and uncontroverted testimony
given by Jerry Googe , Respondent's supervisor of insurance and claims.
11 All dates hereinafter mentioned without stating a year fall within 1973.
12 There is no contention that the strike was unlawful or unprotected.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the OM & C unit, were sick and receiving wages under the
wage continuation policy.13 On August 31, upon the
strike's outbreak , the wages of the Six were discontinued.
At all material times each of the Six was a member of the
Union and appears to have been aware before the strike
started that the Union had been authorized to strike.
Nevertheless, none notified Respondent before the begin-
ning of the strike, or during the strike but before recovering
his health , that he was not a striker.
Before the strike's termination each of the Six, except
Cascio, was released from medical care and declared fit for
work. 14 None , however, returned to work before the end of
the strike.
Each, except Rhodes , testified, in effect, that if he had
not been sick when the strike began he would have joined
the strike . In addition, each, while still physically disabled
from working, in some measure engaged in conduct
supportive of the strike or associated with employees who
did so.
Thus, Cain picketed on two occasions , and on a third
occasion supplied drinking water to the pickets . Matthews
and Rhodes also picketed , the former several times and the
latter once . Cascio, Williamson , and Hodges , who had
formerly been a business agent , appeared at the picket line
and associated with the pickets . Cascio did this five times,
Williamson three or four times , and Hodges once.
B. Contentions and Concluding Findings Concerning
Respondent's Alleged Violations of Section 8(a)(3)
and (1) of the Act by Discontinuing the Wages
Being Received by the Six
As I have found, on the day the strike was called the Six
were employed in the OM & C unit, but were not actually
working because they were sick . For various periods
antedating the strike the Six were receiving wages under
the wage continuation policy in lieu of wages they would
have earned had they been performing their regular duties.
The Six were members of the Union. They were aware
that their fellow members had authorized the Union to call
their unit out on strike . Nevertheless , at no time did the Six
notify Respondent that they disavowed the strike.
The strike was almost 100 percent effective . In view of
this, and not having been notified by the Six that they were
not strikers, Respondent, it contends, considered them to
be strikers and, therefore , not under any circumstances,
entitled to wages . This being so, Respondent further
contends , upon the strike's outbreak it discontinued the
wages the Six were drawing under the wage continuation
policy because such wages were in substitution for the
wages they would have received had they been working
and not striking.
The General Counsel apparently concedes that had the
Six been strikers they would not have been entitled to
wages pursuant to the wage continuation policy. However,
the General Counsel takes the position that they were not
strikers. The Six not having been strikers, the General
Counsel's argument continues, the termination of the
wages they were receiving in accordance with the wage
13 The dates on which these employees became sick follow : Cain-July
30; Cascio-August 24; Hodges-July 13; Matthews-August 1; Rhodes-
August 15; Williamson-July 16.
continuation policy "is," the General Counsel states on
brief upon the authority of N.L.R.B. v. Great Dane Trailers,
Inc., 388 U.S. 26 (1967), "inherently destructive of the
rights of [the Six] and is in violation of Section 8(a)(1) and
(3)."
To support his position that the Six were not strikers the
General Counsel makes a syllogistic presentation. In his
brief he defines a strike as being "a cessation of work." The
General Counsel then points to the fact that upon the
commencement of the strike the Six were already not
working by reason of their sickness . Accordingly, he
concludes that they were not strikers because they did not
cease work to go on strike.
Although it has surface appeal , I reject this argument
because it proves too much. Were the General Counsel's
argument to be accepted it would follow that an employee
who is not actually working at the start of a strike could
never be considered to be a striker . The Board in at least
two cases has also rejected similar arguments.
In Marathon Electric Mfg. Corp., 106 NLRB 1171, 1176-
78 (1953), the employer discharged employees for engaging
in an unprotected strike , including some who, because of
illness or injury, were not working at the time of the strike.
Concerning the latter , the Board found that the employer
was justified in considering them to be strikers and
discharging them, notwithstanding that "fortuitously [they]
did not happen to be physically present in the plant at the
precise time" of the strike. The Board's conclusion in this
regard, as its Decision makes clear , was based on factors
which are present here.
Thus, the employees who were absent from the plant
were members of the Union which called the strike. The
strike was supported by employees who were working
when it occurred . None of the employees who were away
from the plant when the strike took place disavowed the
strike . And, finally, no notice was given to the employer
that the sick and injured employees were not striking.
In United Electrical, Radio and Machine Workers of
America, Local 1113 v. N.LR.B., 223 F.2d 338, 343
(C.A.D.C.), cert. denied 350 U .S. 981 (1955), the Board's
Decision in Marathon was affirmed . Regarding the employ-
ees who were not actually working at the beginning of the
strike, the court said:
No employee took any steps to indicate that he was not
a participant [in the strike ]. He had a right to claim and
to establish that he was a non-participant . By choosing
to remain silent and taking no steps to disavow the
action of their agent [in calling the strike ] . . . these
employees were found by the Board to have acquiesced
in, ratified, and become parties to their agent 's actions
.... The record supports [this ] finding ... .
A similar result was reached in Bechtel Corporation, 200
NLRB 503 (1972). There, as in Marathon, employees were
discharged for involving themselves in an illegal strike.
Among these was an employee, Steel, who was on leave of
absence when the strike occurred . Although Steel learned
of the strike before his leave expired , he did not notify his
14 The release data follow: Cain-September 24; Cascio-December 10,
the day on which the strike ended; Hodges-October 4; Matthews-October
29; Rhodes-September 26; and Williamson-November 6.
SOUTHWESTERN ELECTRIC POWER COMPANY 527
employer that he was not striking, nor did he return to
work.
The Administrative Law Judge found, and the Board
agreed, that Steel's discharge was not violative of the Act
because he "could have informed [his employer] that he
had been on leave and disassociated himself from the
strike, but he refrained from doing so." Continuing in this
vein, it was further stated in Bechtel that "under the
rationale adopted by the Board in Marathon, the finding is
warranted that, by keeping silent , Steel went along with the
strike and in effect ratified the strike...."
It may be argued that Marathon and Bechtel are
distinguishable from the instant case in that they involved
unlawful strikes. Analytically, however, this would appear
to be a distinction without a difference. If, as the Board did
in Marathon and Bechtel, an inference can be drawn of
participation in an unlawful strike, there should be no
reluctance to infer participation in a lawful strike, as was
the strike here.
Accordingly, I find that because the Six did not notify
Respondent that they were not striking Respondent was
justified in considering them to be strikers. It being well
settled that strikers are not entitled to wages, I conclude
that by stopping the wages the Six were receiving under the
wage continuation policy Respondent did not violate
Section 8(a)(3) or (1) of the Act.
C. Facts Concerning Respondent's Alleged
Violations of Section 8(a)(1) and (3) of the Act in
Connection With the Discontinuance of Wages Being
Received by Herman Cryer Pursuant to the Wage
Continuation Policy
Herman Cryer is a member of the Union and employed
in Respondent's clerks umt.15 On July 10, 1973, Cryer
underwent surgery for the removal of a cataract from one
of his eyes. At about the same time Cryer began to receive
wages pursuant to the wage continuation policy.
On September 6, after Cryer had been drawing such
wages for more than 6 weeks, Respondent's president
approved the continued payment of Cryer's wages under
the policy until September 24.16 On that date, notwith-
standing that he had not yet been released from medical
care, Cryer's wages were stopped.
In the meantime, about or shortly after August 16, and
while Cryer was still receiving medical treatment, his
physician advised him that he could resume driving his
automobile. Acting on this advice, Cryer started to drive
about September 7.
Cryer's driving came to the attention of George Reese,
Respondent's auditor. Expecting that Cryer would agree to
do so because he was up and about and driving his car,
15 Employees in the clerks unit were not called out on strike by the
Union Nevertheless, as I have found, some employees who worked in this
unit honored the Union 's picket lines.
i6 This, it will be remembered, was in accordance with the provisions of
the wage continuation policy dealing with the payment of wages beyond 6
weeks
17 The findings in this, and in the previous, two paragraphs are based on
testimony given by Cryer and Reese . The quotations are taken from Reese's
testimony Cryer testified that during their conversation , after Reese's
reference to the stoke , Reese stated that he was "going to see if he could get
[Cryer] terminated " Reese denied saying this For two reasons I credit his
Reese, on or about September 24, asked Cryer to come
back to work and perform light duty consisting of
answering the telephone. Cryer's response was that he
"hadn't gotten a doctor's okay." Reese then asked if Cryer
would help out in Respondent's office "if the doctor will
release [him] and give [him] approval to do light duty."
Cryer replied that he "will have to think about this."
Following this evasive answer by Cryer the conversation
became heated, abusive, and recriminatory. During this
phase of their talk Reese told Cryer that he didn't believe
that Cryer would return to work to perform light duty even
if his physician approved his doing so; that he thought
Cryer "had been, on the gravy train so long he was afraid it
was going to stop and he was going to have to get off"; and
that he "thought [Cryer] was trying to ride out [the] strike
[then in progress], or sick time whichever came first."
About this point Cryer said that he was going to "fix"
Reese by getting "the union [and his] cousin that is a
Prosecuting Attorney in Louisiana after [him ]." 17
A day or two later Cryer spoke to Jerry Googe,
Respondent's supervisor of insurance claims, about the
stoppage of the compensation he had been receiving under
the wage continuation policy and sought his help in this
regard, Googe stated, as Cryer testified, that he "doubt[ed]
if he could do [Cryer] any good," but that any assistance
he could offer Cryer" would depend on [Cryer's ] answering
... whether [he] would report back to light duty." Cryer's
answer, as he further testified, was that he "didn't know."
Googe's testimony on this point did not differ materially
from Cryer's, except in one respect which was not
controverted by Cryer. Googe stated that he asked Cryer if
"he would be able to return to work on light duty, if it was
okayed by the doctor" and that Cryer answered "that he
could not say"
Towards the latter part of October or in the first part of
November Reese, Respondent's auditor, again asked
Cryer, as Reese testified without contradiction, "if he
would come back to work on light duty." As he had done a
month earlier, Cryer responded that "he would think about
it." -
Cryer never sought approval from his physician to
perform light duty. His reason for not doing so, he claimed,
was "because of . . . complications to [the] eye" from
which a cataract had been removed.
Cryer was released from medical care on November 24.
However, he did not return to work until the termination
of the strike among the employees in the OM & C unit
"because," as he testified, "of the union, honoring the ones
that was out." 18 I also note in this regard that after
November 24 Cryer picketed on several occasions.
denial . The first is that Reese's demeanor as a witness impressed me more
favorably than Cryer's The second relates to a later request by Reese, to be
discussed subsequently, that Cryer return to work to perform light duty It
does not seem likely , if Reese had in fact earlier threatened to obtain Cryer's
discharge , that he would have renewed his request to Cryer to come back to
work . Rather, it seems to me, that if he had actually made the threat
attributed to him by Cryer, he would have bent his efforts towards its
effectuation , and there is no evidence of this in the record
18 It will be remembered that, although Cryer did not work in the OM &
C unit, Cryer was a member of the Union.
528 DECISIONS OF NATIONAL
D. Contentions and Concluding Findings Concerning
Respondent's Alleged Violations of Section 8(a)(1)
and (3) of the Act in Connection With the
Discontinuance of Wages Being Received by Herman
Cryer Pursuant to the Wage Continuation Policy
The positions of the parties concerning the reason for the
discontinuance of Cryer's wages under the wage continua-
tion policy has not been explicitly set forth in their briefs.
In this regard, the General Counsel's brief contains no
mention of Cryer at all.
The complaint contains a general allegation that Cryer's
wages were stopped "to discourage [Cryer's ] union and
other concerted activities." This allegation, however, is not
supported by the evidence.
The evidence does not show that the wages Cryer had
been receiving pursuant to the wage continuation policy
were discontinued because he was a member of the Union,
or because he engaged in "union and other activities," or
"to discourage" him from engaging in such "activities." It
shows; rather, that Cryer's wages were stopped more than 3
months after he had begun to receive them and after the
strike had been in progress for several weeks because he
would not agree to return to work and perform light duty
during his convalescence. 1s
The sole reference by any official of Respondent to the
strike in connection with the discontinuance of Cryer's
wages came during the course. of a heated and disputatious
conversation and was made only after Cryer refused even
to agree to a suggestion that he consult his physician
concerning the advisability of performing light duty. This,
in my opinion, is insufficient, in view of all the evidence in
the record considered as a whole, to establish that union
19 As I have found , in this connection , the payment of wages under the
wage continuation policy is not automatic , but depends on several factors,
one of which is the willingness of the employee concerned to perform light
duty, if his physician consents to his doing so.
20 See fn. 17 above.
21 In the event no exceptions are filed as provided by Sec. 102.46 of the
LABOR RELATIONS BOARD
considerations entered into Respondent's decision to stop
Cryer's wages.
I conclude, therefore, that the General Counsel has not
established by a preponderance of evidence that the
discontinuation of Cryer's wages under the wage continua-
tion policy was violative of Section 8(a)(3) of the Act.
Accordingly, having already concluded that the discon-
tinuation of the wages which had been received pursuant to
the wage continuation policy by the Six was also not
violative of the Act, and having found that Reese,
Respondent's auditor, did not threaten to have Cryer
discharged,20 I shall recommend that the complaint, which
does not allege the commission by Respondent of any
other unfair labor practices, be dismissed.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) or (3) of the Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record in this case , and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 21
It is ordered that the complaint be, and the same hereby
is, dismissed in its entirety.
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.