Texaco, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1988

290 N.L.R.B. 1182 (N.L.R.B. 1988)

1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Texaco , Inc. and John T. Dumesnil , W. P. Schulze,
Jack Hart, and Melvin R. Laughlin and Oil,
Chemical and Atomic Workers International
Union, AFL-CIO, and Locals 4-23 and 4-367,
Parties to the Contracts . Cases 23-CA-7929,
23-CA-7938-1, 23-CA-7938-2, and 23-CA-
7938-4
September 22, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On September 14, 1981, Administrative Law
Judge Richard D. Taplitz issued the attached deci-
sion. The Respondent and the General Counsel
filed exceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the record and the at-
tached decision in light of the exceptions and briefs
and has decided to affirm the judge's rulings, find-
ings, and conclusions only to the extent consistent
with this Decision and Order.
Since the early 1940s OCAW Locals 4-367 and
4-23 have represented certain hourly paid employ-
ees at, respectively, the Respondent's Houston and
Port Arthur facilities. The most recent collective-
bargaining agreements involved here were effective
from January 8, 1979, to January 7, 1981. The
agreements provided that negotiations could be re-
opened on certain items. They also preserved the
Locals' right to strike no earlier than January 8,
1980,1 if the parties failed to reach agreement on
the reopened items. Each Local invoked the re-
opener but agreements were not reached by Janu-
ary 8. Local 4-23, on January 8, and Local 4-367,
on January 30, began lawful economic strikes. The
Respondent thereupon suspended, because of the
strikes, payment of accident and sick (A&S) bene-
fits to disabled employees who had been receiving
them when the strikes began.
On February 11, the Respondent gave the Hous-
ton employees written notice of information previ-
ously given Local 4-367 regarding its last prestrike
offers as to a number of employee benefits. Con-
cerning the discontinued A&S benefits, the notice
contained the following announcement:
Decision will . . . be reserved regarding the
resumption of A&S benefits which were dis-
continued at the beginning of the strike for
those employees who are still disabled after
the termination of the strike.
' All dates are in 1980 unless otherwise specified
On April 28, the Respondent and Local 4-23
signed a "Memorandum of Agreement" that me-
morialized their settlement of the economic dispute
that had led to the strike and, in addition, their set-
tlement of disputes over the Respondent' s adminis-
tration of its employee benefit plans during the
strike. They also signed a separate "Strike Settle-
ment Agreement." A few days earlier, the Re-
spondent and Local 4-367 had settled the Houston
strike by means of a similar "Memorandum of
Agreement." The charges that led to the instant
complaint were filed by the individual Charging
Parties on various dates in May.
The judge concluded that the Respondent violat-
ed Section 8(a)(3) and (1) of the Act by withhold-
ing benefits under its A&S benefit plan from em-
ployees on the commencement of the lawful eco-
nomic strikes when such employees were eligible
for those benefits. We agree with the judge's find-
ings underlying this conclusion for the reasons set
forth in section I, below. However, we shall dis-
miss the complaint based on our finding that the
settlement agreements constituted effective waivers
by the Locals of the affected employees' entitle-
ments to the A&S benefits at issue . The facts and
analysis supporting the dismissal are set forth in
section II of this Decision and Order.
I.
The judge, relying on Emerson Electric Co., 246
NLRB 1143 (1979), found a violation based in part
on the fact that the disabled employees had not en-
meshed themselves in the strikes. In Conoco, Inc.,
265 NLRB 819 (1982), however, decided after the
judge's decision, the Board held that a disabled em-
ployee's participation in a strike no longer disquali-
fies or limits entitlement to reimbursement for acci-
dent or sick benefits withheld by an employer be-
cause of a lawful strike.
In Texaco, Inc., 285 NLRB 241 (1987), the Board
reaffirmed the abandonment in Conoco of the Emer-
son Electric remedial limitation and, going further,
overruled the Emerson Electric theory of 8(a)(3)
and (1) violations. We held in Texaco that the law-
fulness of the discontinuance of benefit payments to
disabled employees on commencement of a strike
will be resolved by application of the test set forth
in NLRB v. Great Dane Trailers, 388 U.S. 26
(1967). Thus, the General Counsel can meet the
Great Dane burden of showing an adverse effect on
employee rights by showing that a benefit withheld
because of a strike was an accrued benefit. At that
point the employer may be able to defend its action
by showing that it had a legitimate and substantial
business justification for the cutting off of benefits
such as an explicit waiver by the union or the em-
290 NLRB No. 152
TEXACO, INC
ployer's reliance on a nondiscriminatory contract
interpretation that is reasonable and arguably cor-
rect See Texaco, Inc, supra at 244-246
We find that here the Respondent withheld an
accrued benefit and did so on the basis of the strike
to the detriment of the employees ' right to engage
in a lawful economic strike The Respondent's
A&S benefit plan exists independent of any collec-
tive-bargaining agreement and covers all of its reg-
ular employees (with exceptions not pertinent
here), whether represented by a union or not The
collective-bargaining agreements that were in effect
at the facilities involved in this proceeding at the
time of the strikes incorporated the A&S benefit
plan and obligated the Respondent not to discon-
tinue or reduce benefits under the plan, for em-
ployees covered by the agreements , during the
term of the agreements
Eligibility for nonoccupational illness or injury
benefits under the plan was established by a mini-
mum of 1 year of "active, continuous , and exclu-
sive service with the Company " The employees
whose withheld A&S benefits are the subject of
this proceeding were all covered by the collective-
bargaining agreement and were actually receiving
benefits when the Respondent discontinued them
under a general policy of not paying these benefits
during a strike As we found in Texaco, Inc, supra
at 246-247, which involved the same A&S benefits
plan as the one at issue here, the benefits withheld
were accrued benefits Their discontinuance on the
basis of the strikes warrants the inference of dis-
crinunatory intent and this constitutes a violation
of Section 8(a)(3) and (1) unless the Respondent
has sustained its burden of proving a legitimate and
substantial business justification Texaco, Inc is also
controlling on the validity of the principal business
justification asserted in both cases, a nondiscrimina-
tory contract interpretation As in Texaco, Inc (at
247-248), we here reject the contention that any
reasonable and arguably correct interpretation of
the A&S benefits plan permitted the Respondent to
disqualify those employees acknowledged to have
been eligible for A&S benefits pending their notify-
ing the Respondent and establishing that their con-
tinued absence was not due to the strikes Thus far,
then, the Respondent 's position does not support a
claim of a legitimate and substantial business justifi-
cation for the cessation of benefits
II
We find went, however, in that portion of the
Respondent's defense to the General Counsel's
prima facie case that claims that the strike settle-
ment agreements executed by the Locals, and then
ratified by the employees, clearly and unmistakably
1183
waived the employees' statutory right to be free of
discrimination or coercion in the receipt of con-
tractual benefits
Each of the two memoranda of agreement was
"in full and complete settlement of all issues negoti-
ated " Each settlement included a provision enti-
tled "Lump Sum Payment" that stated that
In consideration of the Union's agreement to
withdraw all contractual grievances and
NLRB charges and court proceedings arising
out of the Company's administration of em-
ployee plans during the strike, and the Union's
agreement not to institute any further actions
arising out of said circumstances, the Company
agrees to provide [a payment of up to $150 to
all employees to cover premiums for the hos-
pital-surgical-major medical benefits plan as-
sumed by the employees during the strike]
Immediately following this provision, under the
heading "Accident and Sick Benefits," the parties
agreed, in relevant part, that
for employees who were disabled before
the strike began and receiving A&S benefits,
such benefits shall be resumed at the time the
strike is officially discontinued if satisfactory
evidence of continuing disability is established
An additional "Strike Settlement Agreement"
admitted into evidence with respect to the Port
Arthur unit obligated each party to dismiss any liti-
gation pending against the other, specifically in-
cluding "arbitrations, unfair labor practice charges,
law suits and grievances" related to any of the ben-
efit plans, and to promise that "no new litigation
growing out of or related to the strike will be
filed "
In Energy Cooperative, 290 NLRB 635 (1988), the
Board addresses a question left open in Texaco and
held that waivers of contractual benefits contained
in strike settlements may result in dismissal of
charges filed by individual employees over the
denial of such benefits Thus, a collective-bargain-
mg representative may waive its individual mem-
bers' statutory rights to receive contractual benefits
free from discrimination or coercion See the dis-
cussion of Metropolitan Edison Co v NLRB, 460
U S 693 (1983), and Ford Motor Co v. Huffman,
345 U S 330 (1953), in Energy Cooperative, supra at
636 Energy Cooperative emphasized Texaco's hold-
mg that such a waiver is effective only if it is clear
and unmistakable . For the following reasons, we
find such a clear and unmistakable waiver here
According to the parties, their memorandum of
agreement was "in full and complete settlement of
all issues negotiated " Among these issues was the
1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent's administration of its employee benefit
plans, which included the A&S benefits plan at
issue in this case. It was expressly in return for the
Union's relinquishment of all existing or future
claims with regard to employee benefits during the
strike that the Respondent provided a limited pay-
ment to all employees (including those who were
sick or disabled during the strike) for certain insur-
ance contributions under the provision of the
agreement entitled "Lump Sum Payment." Thus
this provision clearly resolves any claims with ire-
spect to employee benefits for the period of the
strike.
Further, the "Lump Sum Payment" provision is
followed immediately by the one entitled "Acci-
dent and Sick Benefits" in which the parties agreed
that receipt of normal disability benefits would
resume after the strike ended. With this provision
they resolved any differences they might have had
concerning the employees' entitlement to disability
pay during the strike. The parties' agreement that
benefits would be resumed after the strike ended
clearly reflects the assumption that these benefits
were not payable during the strike. That provision
must be read in conjunction with the provision that
precedes it and with the memorandum as a whole.
Thus, the A&S provision makes sense only as part
of the complete resolution of all matters regarding
contractual employee benefits affected by the
strike-'
This understanding is reinforced as to the Port
Arthur Local by the language of the additional
"Strike Settlement Agreement" forswearing "any
and all litigation . . . including [that] related to any
of the benefit plans," as well as "new litigation
growing out of or related to the strike."s
Thus, we conclude that the parties' settlement
agreements establish that the Locals clearly and
unmistakably waived their sick and disabled em-
ployees' right to receive contractual A&S benefits
for the duration of the strike.4
2 We note that no extrinsic evidence was offered regarding the bar-
gaining history of the A&S settlement provision
s As stated above, all the instant charges were filed after the date of
the Port Arthur "Strike Settlement Agreement "
4 That the Houston Local was aware of the A&S issue and understood
that the settlement agreement was intended to resolve it is reinforced by
the close relationship between the employee benefits language in the
memorandum of agreement and the Respondent's earlier notice to the
Local and the employees concerning discontinuance of a number of em-
ployee benefits, specifically including A&S benefits, during the strike
Member Cracraft would not rely on either the zipper clause contained
in the letter of agreement, or the provision providing for resumption of
benefits at the end of the strike as evidence of the parties' intent that indi-
viduals' rights to A&S benefits were waived Rather , in agreeing with
her colleagues that the Union waived the employees' contractually pro-
vided A&S benefits during the term of the strike , Member Cracraft relies
on the language of the lump-sum payment section of the strike settlement
agreement in which the parties agreed on a specific lump-sum payment in
consideration for the Union's relinquishment of all claims arising from the
Finally, for the reasons set forth in Texaco and
Energy Cooperative, we shall give effect to these
strike settlement agreements that we have found
met the demanding standard of clearly and unmis-
takably waiving the statutory right of individual
employees to receive contractual benefits free from
discrimination. It effectuates the purposes and poli-
cies of the Act to give effect to a private settle-
ment amicably resolving a labor dispute where the
union was entitled to waive individual rights in se-
curing the good of the entire unit and was empow-
ered to bind unit members wholly apart from their
separate consent. Accordingly, we shall dismiss the
complaint. 5
ORDER
The complaint is dismissed.
Respondent 's "administration of employee plans dunng the strike " to find
such a waiver.
5 Given our disposition of this case , we find it unnecessary to address
the General Counsel 's exception to the judge 's denial of the motion to
amend the complaint to include approximately 120 names as employees
who were affected by the withholding of A&S benefits in a manner simi-
lar to the effect on those named in the amended complaint
Chairman Stephens notes that none of the factors discussed in his con-
curring opinion in Energy Cooperative as possible barriers to the Board's
reliance on a settlement are present in this case
Robert G. Levy II, Esq., for the General Counsel.
Randall N. Finley, Esq., of Houston , Texas , for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLrrz, Administrative Law Judge.
This case was tried in Houston, Texas, on April 14 and
28, 1981. The charge in Case 23-CA-7929 was filed on
May 7, 1980, by John T. Dumesnil, an individual. The
charges in Cases 23-CA-7938-1 and 23-CA-7938-2
were filed on May 12, 1980, by W. P. Schulze, an indi-
vidual, and Jack Hart, an individual, respectively. The
charge in Case 23-CA-7938-4 was filed on May 20,
1980, by Melvin R. Laughlin, an individual. On July 1,
1980, an order consolidating cases and a complaint
issued . The complaint alleged that five individuals,"
whose names were set forth as discriminatees in the
unfair labor practice charges, were discriminated against
in violation of Section 8(a)(3) and (1) of the National
Labor Relations Act when Texaco, Inc. (the Company)
terminated certain employee benefits under its Accident
and Sick Benefit Plan (A&S benefits) at the outset of a
lawful economic strike. On September 10, 1980, the Re-
gional Director for Region 23 of the Board issued an
amended complaint adding the names of five other em-
ployees, none of whom had been named in the charges,
i A sixth individual , W A Bartlett, the Charging Party in Case 23-
CA-7938-3 was also named in the complaint His name and that charge
are deleted from the amended complaint
TEXACO, INC 1185
as discrimmatees At the opening of the hearing, the
Company moved to dismiss that part of the complaint
that named the five additional discrinunatees That
motion was denied Also at the outset of the hearing,
counsel for the General Counsel moved to add approxi-
mately 120 names to the complaint Although, as set
forth in detail below, the controlling Board law provides
that it is lawful for an employer to withhold A&S bene-
fits from employees who affirmatively demonstrate sup-
port of a strike by picketing or otherwise showing public
support, counsel for the General Counsel acknowledged
that he was in no position to know whether all or any of
the employees he intended to amend into the complaint
had participated in the strike For the reasons set forth
on the record (Tr 41-44 and fn 2 below), I denied the
General Counsel 's motion to amend The General Coun-
sel sought special permission to appeal that ruling and by
telegram dated April 22, 1981 , the Board denied the
General Counsel 's request without prejudice to the Gen-
eral Counsel 's right to renew his contention through the
filing of an appropriate exception In his brief, counsel
for the General Counsel in effect moves that I reverse
my ruling with regard to the proposed amendment That
motion is denied for the same reasons that the original
motion was denied
Issues
The primary issue is whether the Company violated
Section 8(aX3) and (1) of the Act by discontinuing the
accident and sick (A&S) benefits that John T Dumesml,
Richard M Holt, Arthur Henry Sr , Chester F Portier,
Percy A Bland Jr , Charles 0 Broussard , Miguel J
Herbert, William P Schulze, Jack Hart, and Melvin R
Laughlin had been receiving when the Company's em-
ployees went out on strike Subsidiary questions are
raised whether some of those employees came off A&S
status during the strike because they were well enough
to return to work and whether some of the employees
disqualified themselves from A&S benefits by affirma-
tively demonstrating support of the strike by picketing or
otherwise showing public support
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses , to argue orally , and to file briefs Briefs,
which have been carefully considered , were filed on
behalf of the General Counsel and the Company
On the entire record 2 of the case and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
The Company, a Delaware corporation with plants
and facilities located in Port Arthur and Houston , Texas,
is engaged in the production, refining, and distribution of
petroleum products throughout many States of the
United States During the 12 months immediately pre-
ceding the issuance of the complaint, the Company sold
and shipped petroleum products valued in excess of
$50,000 directly from its Port Arthur and Houston,
Texas locations to places located outside of Texas
During the same period, the Company purchased goods
valued in excess of $50,000, which had been shipped
from points outside of Texas directly to its Port Arthur
and Houston facilities The Company is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act
II THE LABOR ORGANIZATIONS INVOLVED
Oil, Chemical and Atomic Workers International
Union, AFL-CIO (OCAW), and its Locals 4-23 and 4-
367 are, and each is, a labor organization within the
meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Sequence of Events
Two of the Company 's facilities are involved in this
proceeding One is in Port Arthur and the other is in
Houston, Texas
The Port Arthur facility is Texaco's largest refinery in
the United States It covers about 5000 acres and em-
ploys about 6000 people, of whom about 4000 are hourly
rated employees OCAW Local 4-23 has been those em-
ployees' collective-bargaining representative since 1942
The strike that gave rise to the issues in this case began
on January 8, 1980, and ended at 2 30 p in on April 28,
1980 The Port Arthur facility had a long history of
strikes Between January 4, 1969, and the present time
there were 10 strikes, all but 2 of which were authorized
by Local 4-23 All the authorized strikes were honored
by 100 percent of the bargaining unit employees and
none of them crossed the picket line Throughout those
strikes, the facility continued to operate through the use
of nonbargammg unit personnel Even during the two
nonauthorized wildcat strikes, only a handful of employ-
ees crossed the picket line In 1 of them about 5 employ-
ees came to work and the other about 10
The Houston facility employs about 279 employees
Those employees actually worked out of 25 or 30 differ-
ent small field offices OCAW Local 4-367 has been the
collective-bargammg representative of those employees
since 1944 The strike at that facility began on January
30, 1980 , and ended on February 14, 1980 That was the
first strike that had ever occurred at the Houston facility
About 202 of the approximately 279 employees at the
Houston facility honored the strike and about 77 employ-
ees went to work During the course of the strike, some
of the employees went back to work until about 55 per-
cent of the original employee complement remained on
strike Operations continued during the strike with the
use of supervisors, exempt personnel , and the hourly em-
ployees who did not observe the strike
At the conclusion of the strike, the Company entered
into strike settlement agreements with both Local 4-23 at
Port Arthur and Local 4-367 at Houston The Port
Arthur agreement provided for the payment of various
sums of money to the employees who did not receive
2 Certain errors in the transcript are noted and corrected company contributions to health plans The agreement
1186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
specifically stated that the money was to be paid "in
consideration of the Union's agreement to withdraw all
contractual grievances and NLRB charges and court
proceedings arising out of the Company's administration
of employee benefit plans dunng the strike, and the
Union's agreement not to institute any further actions
arising out of said circumstances." The Company entered
into a similar strike settlement agreement with Local 4-
367 at the Houston facility. The parties stipulated that
$150 was given to all employees at the Port Arthur facil-
ity as part of the overall settlement. The Unions are
named in the complaint as parties to the contract, but
they are not charging parties. The charges were filed by
four individual employees.
The Company had collective-bargaining agreements
with OCAW and Locals 4-23 and 4-367 that were effec-
tive by their terms from January 8, 1979, to January 7,
1981. About January 19, 1979, they entered into a memo-
randum of agreement, which provided for a reopener on
certain issues. The memorandum also provided that if
agreement was not reached on the matters subject to the
reopener, the Unions would have the right to strike any
time after January 8, 1980. No agreement was reached
on such matters in negotiations prior to January 8. Local
4-23 went out on strike on January 8 and Local 4-367
went out on strike on January 30, 1980. The complaint
alleges, the answer admits, and I find that the strikes
were in accordance with the terms and provisions of the
memorandum of agreement. The strikes were, therefore,
lawful economic strikes. The parties also stipulated, and I
find, that the accident and sickness plans that are de-
scribed below were in effect during the time of the strike
at Port Arthur.3
The 1979 to 1981 contract covering the Port Arthur
facility employees provided that existing employee bene-
fit plans including the "accident and sick benefit plan"
were incorporated in the agreement and that the Compa-
ny agreed that it would not voluntarily "discontinue,
change or modify such Plans during the term of this
Agreement in such a way as to decrease the benefits
under the said Plans to any employee covered by this
Agreement." The 1979 to 1981 contract covering the
Houston facility employees provides that existing em-
ployee benefit plans including "accident and sick benefit
plan" are made a part of the contract. The Company's
A&S plan covers both facilities. It sets forth, among
other things, a schedule of benefits for nonoccupational
illness or injury that starts at 4 weeks' benefits equivalent
to full pay and 2 weeks' benefits equivalent to half pay
after 1 year of completed service and gradually increases
to 13 weeks' benefits equivalent to full pay and 39 weeks'
benefits equivalent to half pay after 10 or more years of
completed service. The plan provides that in order to
qualify for benefits an employee must, if required,
present evidence that is satisfactory to the Company
showing that the absence is due to illness or accident. It
further provides that illness or accident occurring when
an employee is not on duty will not serve to disqualify
the employee from benefits except where the illness or
accident occurs while the employee is on military leave,
personnel business leave, layoff, or vacation.
At the time of the January 8, 1980 strike at Port
Arthur, the following company employees had qualified
for and were receiving A&S benefits: John T. Dumesnil,
Richard M. Holt, Arthur Henry Sr., Chester F. Portier,
Percy A. Bland Jr., Charles O. Broussard, and Miguel J.
Herbert. At the time of the January 30, 1980 strike at
Houston, the following company employees had quali-
fied for and were receiving A&S benefits: William P.
Schulze, Jack Hart, and Melvin R. Laughlin. All of
those employees were on off-duty status under doctor's
care when the strikes began. Prior to the beginning of
each strike, the Company notified the Unions that A&S
benefits would be discontinued for the duration of the
strike.
A&S benefits were discontinued for the duration of the
strike. That discontinuation was based on a longstanding
policy of the Company to refrain from paying A&S ben-
efits during a strike. The Company made no inquiry
whether employees who had been on A&S immediately
before the strike engaged in any picketing or other
strike-related conduct during the strike. None of the
named employees ever notified the Company that they
were disavowing the strike and none of them protested
to the Company during the strike about the cutoff of the
A&S benefits. The Company's policy of not making
A&S payments during a strike was instituted following a
strike in 1967. Since that time no payments of A&S bene-
fits have been made during a strike, with exceptions not
applicable here.
The parties stipulated and I find that as to the 10 em-
ployees named above: each was a member of OCAW
during his employment with the Company; each was a
member of the Union in good standing throughout that
time; each supported the Union generally throughout
that time; each accepted the monetary compensation that
was part of the strike settlement agreement between
OCAW and the Company in 1980; no release was ob-
tained in connection therewith; and the constitution and
bylaws of OCAW provide that members who hinder a
lawfully called strike are subject to fines and/or expul-
sion.
Before discussing the individual situations of the al-
leged discriminatees , it is helpful to review the applicable
law.
B. The Controlling Principles of Law
The controlling law applicable to this case is set forth
in Emerson Electric Co., 246 NLRB 1143 (1979), enfd. as
modified 650 F.2d 463 (3d Or. 1981).' That case in-
volves facts strikingly similar to the ones in issue here. In
that case the employer had an A&S benefit plan in
which benefits were based on length of employment.
The employer made the decision to discontinue payment
of benefits in the event of a strike before the strike action
was taken. The employees engaged in a lawful economic
strike that was 100percent effective. No employees went
to work. Upon the commencement of the strike, the em-
' The strike at Houston began later and ended earlier than the Port
Arthur strike, and this finding therefore also covers that strike 4 See also Walter Motor Truck Co., 256 NLRB 1059 (1981).
TEXACO, INC
ployer discontinued A&S benefits to employees who had
been receiving them at the time the strike began and no
such payments were made for the duration of the strike
At the conclusion of the strike, the employer and the
employees' collective-bargaining representative entered
into an agreement under which they both undertook to
withdraw all pending charges arising out of the strike,
including proceedings brought by or against individuals
The Board held that the A&S benefits had accrued as a
result of the past work performed and that the employer
had violated Section 8 (a)(3) and (1) of the Act by discon-
tinuing the A&S benefits In substance , the Board held
that the employer had imposed sanctions on some em-
ployees because other employees engaged in a lawful
strike The Board did not find significant the fact that
the strike was 100-percent effective or that the union
agreed to the withdrawal of all charges ° It also did not
consider significant the fact that none of the employees
on A&S notified the company that they disavowed the
strike ° However , the Board went on to hold that an em-
ployee on A&S could lose his benefits if he enmeshed
himself in the ongoing strike by picketing or otherwise
showing public support for the strike As the Board
stated in Emerson , supra, 1143-1144
However, while disabled employees need not af-
firmatively disavow the strike action , neither can
they participate in the strike without running the
risk of forfeiting benefits prospectively In this
regard , the Administrative Law Judge has incor-
rectly concluded that Respondent may not rely on
evidence that some of its employees who had been
receiving disability benefits prior to the strike were
later seen participating in the strike by their appear-
ance on the picket line Although a showing of par-
ticipation in the strike does not justify post hoc Re-
spondent 's initial termination of benefits to these
employees, we nevertheless do not consider partici-
" Regarding the strike settlement agreement in which the employer and
the union agreed to withdraw all charges, the Board affirmed the ruling
of the administrative law judge that the Board enforces public and not
private rights and that the Board's power to prevent unfair labor prac-
tices cannot be divested by a private contractual agreement of the parties
While the Board certainly is not precluded from jurisdiction by a private
agreement, a serious argument can be made that the Board should, as a
discretionary matter, decline to assert its jurisdiction where a strike settle-
ment agreement resolves all issues between the parties and the union has
fairly represented the employees in the bargaining unit A union can, in
some circumstances, trade away statutorily granted rights in return for
other benefits Even the fundamental right to strike can be given up by
execution of a contract containing a no-strike clause Where after a bitter
strike a company, on behalf of itself, and a union , on behalf of the em-
ployees it has a statutory duty to represent, resolve all their differences
and agree to a stable contractual relation, their further agreement that all
litigation be discontinued does go a long way toward fostering the goal
of industrial harmony However, the Board and the Third Circuit Court
of Appeals have not viewed the problem in those terms
To that extent, the Board overruled one of its earlier cases, holding
Consequently, an employer may no longer require its disabled em-
ployees to disavow strike action during their sick leave in order to
receive disability benefits To allow the termination of such benefits
to certain employees as a result solely of the strike activities of
others is to penalize the employees who have not yet acted in sup-
port of the strike To the extent that Southwestern Electric Power
Company [216 NLRB 522], is inconsistent with our decision herein, it
is hereby overruled [Fn omitted ]
1187
patron in the strike to be protected expressions of
opinion , as found by the Administrative Law Judge
For all practical purposes , any employee , disabled
or sound , who affirmatively demonstrates his sup-
port 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 continued disability benefits
This result represents a fair accommodation be-
tween the rights of employees and the interests of
employers For, while employees have the protect-
ed right to receive disability benefits without dis-
avowing the strike, an employer should not be obli-
gated to finance a strike against itself , as would be
the case if we ordered Respondent to pay such ben-
efits for the period during which the disabled indi-
viduals participated in strike activity
Accordingly , we now hold that for an employer
to be justified in terminating any disability benefits
to employees who are unable to work at the start of
a strike it must show that it has acquired informa-
tion which indicates that the employee whose bene-
fits are to be terminated has affirmatively acted to
show public support for the strike Barring such af-
firmative action, of course, we agree with the Ad-
ministrative Law Judge that the disabled employees
found herein to have been discriminated against are
entitled to S and A benefits for the full length of
their sickness or disability [Footnotes omitted ]
The Third Circuit Court of Appeals agreed with the
Board's finding that the discontinuation of A & S bene-
fits violated the Act The court 's reasoning is particularly
relevant with relation to certain arguments made in the
instant case by the Company The court held (650 F 2d
463, 468-469)
The relevant precedents establish the posts be-
tween which this issue falls On one side, as the em-
ployer argues, it is not required to finance a strike
against itself by paying wages or other similar ex-
penses General Electric Co , 80 N L R B 510 (1948)
(wages), Towne Chevrolet, 230 N L R B 479 (1977)
(insurance policy premiums), Ace Tank and Heater
Co, 167 N L R B 663 (1967) (medical insurance
premiums) On the other side, an employer may not
withhold payment of already earned or accrued
benefits contingent upon the cessation by employees
of a legitimate economic strike This situation has
arisen most frequently in the context of accrued va-
cation benefits See NL R B v Great Dane Trailers,
Inc [388 U S 26 at 32 (1967)], Allied Industrial
Workers, Local 289 v NLRB, 476 F 2d 868, 875-
876, 878 (D C Cir 1973), NLRB v Jemco, Inc, 465
F 2d 1148 (6th Cir 1972), cert denied, 409 U S
1109, 93 S Ct 911 , 34 L Ed 2d 696 (1973), NLRB
v Frick Co, 397 F 2d 956 (3d Cir 1968) Accord,
Indiana & Michigan Electric Co, 236 N L R B 986
(1978) (employer unlawfully withheld accumulated
leave pay until employee ceased strike), enforced
without opinion , 610 F 2d 812 (4th Cir 1979)
1188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In determining whether the S and A benefits in
question fall most closely to one side or the other,
the Board adopted the findings and conclusions of
the ALJ that:
the benefits being paid the sick people were not
compensation for contemporaneous delivery of
services at all, but rather payment for past work
performed. Their entitlement to that money de-
pended not one wit upon their working at that
time. That it was deferred payment for work-
albeit conditional upon their being sick and dis-
abled-is true, but for work performed by them
in the past, not in the present. Indeed, this is why
the man who worked 30 years received more
weeks of S and A benefits while sick than the
man who had only performed as an employee a
year, or two, or three. If the sick man must come
out of the hospital and work during a strike to re-
ceive a benefit he sweated for in prior years,
must the retiree, who is collecting the pension he
earned over 35 years, also come back, merely be-
cause the working complement is striking at the
moment? To ask the question is to answer it.
Accrued benefits, in contrast to wages, are de-
ferred compensation for work already done. They
may take the forms of wages due for past work, va-
cation time, seniority rights and other conditions of
employment linked to past service. E.g., NLRB v.
Darling & Co., 420 F.2d 63 (7th Cir. 1970), enforcing
170 N.L.R.B. 1068 (1968) (severance pay); Swift
Service Stores, Inc., 169 N.L.R.B. 359 (1968) (Christ-
mas bonus). Such benefits may be defeasible; for ex-
ample, vacation time may be forfeited if not taken
within a calendar year. The test in deciding if bene-
fits have accrued is whether they are due and pay-
able on the date on which the employer denied
them. Allied Industrial Workers, Local 289 v. NLRB,
supra, 476 F 2d at 876.
The S and A benefits in this case have the distin-
guishing characteristic of accrued benefits. As the
ALJ and the Board found, the right to and the total
amount of benefits are tied to the duration of past
services and the wages paid for them. Although
they are conditional on the employee suffering and
continuing to suffer a disabling illness or injury,
they do not depend on any return to work or on
any future services to the employer.
Wiegand contends that the continued payment of
benefits is conditional also on no strike occurring
because the applicable benefit plan defines disability
as the condition of being unable to work "solely be-
cause of" illness or injury It argues that here the
employees would not have worked during the strike
because they were union members and because the
strike was fully effective. Since they were not
absent from their jobs solely because of physical
disability, it claims they are not entitled to benefits.
We agree with the Board that the employer's
reading of the disability definition is not tenable.
The plan defines disability in terms of the employee
being prevented from engaging in his or her "regu-
lar and customary occupation" because of illness or
injury. This definition turns on the physical capac-
ity to carry on one's occupation. Nor can we accept
the employer's suggestion that payment of S and A
benefits is dependent upon the availability of work
for that particular employee. It has pointed to no
language limiting the right to benefits in such a
way.
In short, nothing in the record of this case indi-
cates that the benefit plan contemplated that em-
ployees who were incapable of performing their
usual occupations for the employer would not be
deemed disabled for the purposes of receiving bene-
fits. Rather, if an employee is certified as disabled,
the only relevant consideration within the period
for which benefits are due is whether the employee
has again become able to work. Therefore, we find
substantial basis supporting the Board's conclusion
that the S and A benefits were accrued benefits and
not wages, and were due and payable within the
period of the strike.
However, the court disagreed with the Board's hold-
ing to the extent that the Board had found that benefits
could be withheld for periods after the employees actual-
ly participated in strike activity or showed public sup-
port of the strike. On that issue, the court modified the
Board's Order to authorize payment of A&S benefits
"for the maximum period of each disabled employees'
eligibility or for such employees' period of disability as
defined in the plan, whichever is shorter." The court rea-
soned as follows (640 F.2d 463, 473-474):
The Board asserts that its remedy serves the well
established policy of protecting an employer from
financing a strike against itself. E.g., General Electric
Co., 80 N.L.R.B. 510 (1948). However, the entire
basis of the Board's decision was that the S and A
payments were to be considered as accrued benefits.
Since an employer may not deny a striking employ-
ee accrued benefits, such as vacation pay, because
of his or her active participation in a strike, it fol-
lows that the employer may not deny the S and A
benefits merely because of the disabled employee's
approval of or participation in strike activity.
Furthermore, the Board's order in this case is in-
consistent with its holding, still viable, that an em-
ployee who pickets during off-duty time cannot be
regarded as a "striker" against whom an employer
can act.
The logic behind the court of appeals' decision is per-
suasive. Employees who strike engage in a protected ac-
tivity. The strike also involves a withholding by employ-
ees of present services and as their pay is remuneration
for present services the employer has no duty to com-
pensate them for the time when they are out on strike. In
that sense an employer need not finance a strike against
itself. However, the employees on A&S are unable to
work through physical disability and therefore they are
not voluntarily withholding services from an employer in
TEXACO, INC
support of a labor dispute as are the strikers They are
not strikers and the A&S benefits they receive are not
geared to present services Under the A&S plan, the ben-
efits accrue as a result of past work performed There is
no nexus between present services and pay the way there
is with strikers Under Section 7 of the Act, employees
have the right to engage in concerted activities and also
have the right to refrain from engaging in such activities
Employees who are not strikers such as those here who
received A&S benefits because of their physical mcapac-
ity to work, engage in protected concerted activity when
they either assist or refrain from assisting in a strike
However, as their benefits are not keyed to current pay
for current work, a serious argument can be made that
their benefits cannot be terminated for engaging in such
activity Under current Board law an employer can dis-
continue A&S benefits to employees who actively sup-
port a strike, even though the effect of that discrimina-
tion would be to discourage union activity The employ-
er is not only permitted but is required to continue A&S
benefits to employees who refrain from actively support-
ing the strike That also would be a discrimination that
would discourage union activity The employees' right to
actively support or to refrain from actively supporting a
strike is equally protected Yet, under current Board law,
an employee who actively supports a strike loses his
right to receive A&S benefits while an employee who
chooses to refrain from such action continues his entitle-
ment Under the court of appeals' analysis of the law,
such an incongruity could not occur Disabled employ-
ees who chose to actively support a strike would be
treated the same as those who chose to refrain from such
action However, when there is a conflict between the
Board and a court of appeals , an administrative law
judge is required to follow the Board law Regency at the
Rodeway Inn, 255 NLRB 961 (1981) As the Board held
in Iowa Beef Packers, 144 NLRB 615, 616 (1963), enfd in
part 331 F 2d 176 (8th Cir 1964)
In numerous instances, in connection with his
consideration of the allegations of the complaint
that the Respondent violated Section 8(a)(2) and (3)
of the Act, the Trial Examiner [now administrative
law judge] relied , not on applicable Board prece-
dent, but instead on certain decisions of U S Courts
of Appeals which expressed views contrary to those
of the Board, and which the Board has not accept-
ed The Trial Examiner's reliance on such court de-
cisions constitutes fundamental error As the Board
has stated and reiterated 2
It has been the Board 's consistent policy for
itself to determine whether to acquiesce in the
contrary views of a circuit court of appeals or
whether, with due deference to the court's opin-
ion, to adhere to its previous holding until the
Supreme Court of the United States has ruled
otherwise But it is not for a Trial Examiner to
speculate as to what course the Board should
follow where a circuit court has expressed dis-
agreement with its views On the contrary, it re-
mains the Trial Examiner's duty to apply estab-
1189
lished Board precedent which the Board or the
Supreme Court has not reversed Only by such
recognition of the legal authority of Board prece-
dent, will a uniform and orderly administration of
a national act, such as the National Labor Rela-
tions Act, be achieved
' Insurance Agents' International Union, AFL-CIO (77te Pruden-
tial Insurance Company ofAmerica), 119 NLRB 768, 773
t E g, Novak Logging Company, 119 NLRB 1573 , 1575-1576
See also Local 1424 International Longshoremen 's Assoctattwt AFL-
CIO (Heide and Company, Inc), 128 NLRB 198, 205-206, Reliance
Fuel Oil Corp, 129 NLRB 1166, 1177, North Country Motors, Ltd,
133 NLRB 1479, 1485
C The Alleged Dtscriminatees
1 Background
As is set forth above all 10 of the alleged discrimina-
tees named in the complaint were qualified for and were
receiving A&S benefits at the time the strike occurred at
the plant in which each was working Upon the com-
mencement of the strike and for the duration thereof,
A&S benefits were discontinued Under the controlling
Board law set forth above, there are only two questions
remaining to be considered The first is whether any of
the alleged discnminatees should have been removed
from the A&S rolls during the course of the strike be-
cause their physical condition permitted them to return
to work The second question is whether any of them en-
meshed themselves in ongoing strike activity by affirma-
tively demonstrating support of the strike by picketing or
otherwise showing public support for the strike At such
time as an employee became ineligible for A&S benefits
because of his physical condition or because of his active
strike support, the Company would have no further obli-
gation to pay A&S benefits Until that time the Company
would have such an obligation
2 The individual situations at Port Arthur
a John T Dumesnil
Dumesnil is an employee at Port Arthur facility At
the time of the strike on January 8, 1980 , he was on A&S
because of a hernia-type operation that had been per-
formed on January 3 , 1980 On February 18, 1980, he
was released by his doctor to return to work He did not
return to work because of the strike The General Coun-
sel concedes in lus brief that Dumesnil 's A&S benefits
terminated on February 18 when he was released by his
doctor Between January 8 and February 17 , Dumesnil
did not attend any union meetings and did not engage in
any picketing About 20 days after the strike began,
which would place it about January 28 , Dumesnil went
to the union hall to tell them about his physical condi-
tion and to visit with the other union members That
action did not enmesh him in the ongoing strike activity
to such an extent as to terminate his right to continued
disability benefits About 20 days later (which would
place it about February 17 , 1980), Dumesml was sched-
uled for strike duty a second time On that occasion he
drove to the picket line with another employee and de-
1190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
livered coffee to the pickets . There is no need to consid-
er whether that conduct enmeshed Dumesnil in the
union activity because his A&S benefit eligibility termi-
nated on February 18, 1980 . The February 17 date was
only an approximation based on adding two 20 -day peri-
ods together from the commencement of the strike and
in any event , there was no indication of what time of
day Dumesnil delivered coffee to the picketers. If he
became disqualified from A&S benefit late on January
17, it probably would have become effective as of Janu-
ary 18.
I find that the Company violated Section 8(a)(1) and
(3) of the Act by failing to make A&S benefits payments
to Dumesnil from January 8 to February 18, 1980.
b. Richard M. Holt
Holt is an employee at the Port Arthur facility. At the
time of the strike on January 8 , 1980. Holt was receiving
A&S benefits because of an upper respiratory infection
and mononucleosis . He was released by his doctor to
return to work on February 29, 1980 , but he did not
return to work because from that time on he was on
strike Between January 8 and February 29, 1980, he did
not attend any union meetings and did not serve on the
picket line. There was no evidence he engaged in any
strike-related activities during that time.
I find that the Company violated Section 8(a)(1) and
(3) of the Act by failing to make A&S benefit payments
to Holt from January 8 to February 29, 1980.
c. Arthur Henry Sr.
Henry did not testify and there is no evidence in the
record concerning him except to establish that he was a
Port Arthur employee who was on A&S at the time of
the January 8, 1980 strike . As all A&S benefits were dis-
continued on January 8, 1980 , his benefits also ended.
There is no evidence that he engaged in any strike -relat-
ed activity . I find that discontinuation of A&S benefits to
Henry on January 8 , 1980, was in violation of Section
8(a)(1) and (3 ) of the Act . The question of whether
Henry could have been removed from A&S thereafter
either because he was physically able to return to work
or because he engaged in strike-related activity is still
open . Counsel for the General Counsel , in his brief,
states that the Company 's counsel has represented that
Henry was a person who converted to longterm disabil-
ity and who the Company already made whole. Counsel
for the General Counsel urges in his brief that those mat-
ters be left to the compliance stage of the proceeding.
The Company , in its brief, urges as a general matter that
if the finding is made that any employee is entitled to
A&S benefits, the question of when such employee re-
covered from illness or otherwise acted in a manner dis-
qualifying him from benefits should be left to the compli-
ance stage of the proceeding In view of those positions
and the state of the record , I recommend that a determi-
nation as to the amount of money , if any, due to Henry
be determined in a compliance proceeding.
d. Chester F. Porker
Portier underwent a double bypass heart operation on
August 17 , 1979. At that time his doctor told him he
would be able to return to work in about 3 months. Por-
tier's testimony was so confused and internally inconsist-
ent that it is difficult to make clear findings of fact. The
following description of events is synthesized from cer-
tain parts of Portier 's testimony that appeared credible
and from various company records.
Sometime prior to the January 8 , 1980 strike, one of
Portier 's doctors told him that he could go back to
work He called the Company and spoke to company
nurse Liz Dorray . When he told her what the doctor
said the nurse said that she would get in touch with his
doctor . An entry on the company nurse 's record dated
January 3 , 1980, states "Doctor Elster 's office says this
man has been released to R.W . [return to work] 1/7/80."
The nurse called Portier and told him that the doctor did
not want him to pick up things over a certain weight.
She said that she would get in touch with his supervisor
and would call him back but he was not to work until
his supervisor spoke to him. The Company 's visiting
nurse record shows that on January 8 the Company
mailed out another medical certificate concerning Portier
and that on January 12 it received the medical certificate
back with a return -to-work date of February 1, 1980. A
claim statement in the Company's file signed by a Dr.
E. K. Massin states that he last saw Portier on January
10, 1980, that Portier 's condition and prognosis were
good , and that , in his opinion , Portier could resume
work on February 1, 1980 . No restrictions on work were
indicated. Portier testified that he was released by Dr.
Massin to return to work on February 1 , 1980, but that
he did not go to work because he thought the Company
was supposed to call him whenever they were ready for
him. I do not credit Portier in that regard. There was
some question about his return to work before the strike
began, but that had nothing to do with the February 1,
1980 date . Portier 's doctor told both Portier and the
Company that Portier could return to work on February
1, 1980, but Portier , for his own reasons, decided no to
do so. I find that Portier was physically able to return to
work on February 1 and that as of that date he was no
longer entitled to receive A&S benefits . The day the
strike was over, Portier went to his doctor and obtained
a note saying that he could return to work on the fol-
lowing day . Though the note was on a form that had a
blank to be filled in to show when the patient was under
the doctor 's care , that blank was not filled in.
Portier did not visit the picket line during the strike.
He only visited the union hall on one occasion and he
went there to have his name removed from the striker
list.
I find that the Company violated Section 8(a)(1) and
(3) of the Act by failing to make A&S benefit payments
to Portier from January 8 , when the strike began, to
February 1, 1980, when Portier no longer qualified for
A&S benefits because his physical condition was such to
allow him to return to work.
TEXACO, INC
e Percy A Bland Jr
Bland is an employee at the Port Arthur facility At
the time of the strike on January 8, 1980, he was on A&S
because of a stomach ulcer He was not released to
return to work by his doctor until May 9, 1980, which
was after the strike ended on April 28, 1980 During the
course of the strike , Bland did not engage in any picket-
ing or visit the picket line The only time he visited the
union hall was to attend an arbitration proceeding about
April 1 There is no evidence he engaged in any strike-
related activity
I find that the Company violated Section 8(aXl) and
(3) of the Act by failing to make A&S benefit payments
to Bland from January 8 to April 28, 1980
f Charles 0 Broussard
Broussard is an employee at the Port Arthur facility
At the time of the strike on January 8, 1980 , he was on
A&S because of a cataract operation he underwent on
December 17, 1979 On April 27, 1980, the day before
the strike ended , Broussard saw his doctor and was re-
leased to return to work the following day He returned
on April 28, which was the day the strike ended It
could be merely a coincidence that Broussard 's physical
condition was so improved that he could return to work
on the same day that the strike ended I am extremely
suspicious of such coincidences However, Broussard ap-
peared to be a credible witness and I am unprepared to
discredit him merely on the basis of suspicious circum-
stances
During the strike Broussard did not take part in the
picketing , visit the picket line or the union hall, and did
not engage in any activity for the Union
I find that the Company violated Section 8(a)(1) and
(3) of the Act by failing to make A&S benefit payments
to Broussard from January 8 to April 28, 1980
g Miguel J Herbert
Herbert is employed at the Port Arthur facility At the
time of the strike on January 8, 1980, he was on A&S
because of a ruptured appendix he had suffered on No-
vember 30, 1979 He was released by his doctor to return
to work on April 21 , 1980, but he did not report for
work at that time because he wanted to honor the picket
line From the time the strike began until April 21, he
did not visit the union hall or the picket line
I find that the Company violated Section 8(a)(1) and
(3) of the Act by failing to make A&S benefit payments
to Herbert from January 8 to April 21, 1980
3 The individual situations at Houston
a William P Schulze
Schulze is employed at the Houston facility At the
time of the Houston strike on January 30, 1980, Schulze
was on A&S because of heart disease He was released
by his doctor to return to work on March 4, 1980, which
was after the strike ended on February 14, 1980 Schulze
had been a member of the workmen's committee that ne-
gotiated the 1980 contract , but he resigned before the
1191
strike began During the strike he did not visit the picket
line, take part in the picket line, or visit the union hall
I find that the Company violated Section 8(a)(1) and
(3) of the Act by failing to make A&S benefit payments
to Schulze from January 30 , which was the commence-
ment of the strike, through February 14, which was the
end of the strike
b Jack Hart
Hart was employed at the Houston facility He did not
testify at this proceeding The evidence does establish
that he was receiving A&S benefits at the time of the
January 30 strike and that all such benefits were discon-
tinued for the duration of the strike
The Company's division superintendent of employee
relations, Robert E McVey, testified that Hart retired
February 1 However, the record does not indicate
whether that was February 1, 1980 , or February 1, 1981
There is no evidence in the record regarding whether
Hart's physical condition allowed him to come off A&S
after the strike began on January 30 and no evidence re-
lating to whether Hart engaged in any strike -related ac-
tivity In his brief, the General Counsel states that the
Company maintains through its counsel that Hart retired
in February but that no representations were made con-
cerning what benefits, if any, were paid to him As with
Henry, as discussed above, I find that the Company vio-
lated Section 8(axl) and (3) of the Act by discontinuing
Hart's A&S benefits on January 30 but I leave to the
compliance stage of this proceeding whether Hart is enti-
tled to any monetary payment and , if so, the amount of
such payment
c Melvin R Laughlin
Laughlin is employed at the Houston facility At the
time of the strike at Houston on January 30, 1980, he
was on A&S because of a lower back pain He was re-
leased by his doctor to return to work on February 20,
1980, which was after the strike ended on February 14,
1980 During the strike he did not engage in any picket-
ing or visit the picket line He did not visit the union
hall There was no evidence to indicate that he had en-
gaged in any strike-related activity He had been on the
Union's negotiating committee at one time, but he left
that position befor the strike began
I find that the Company violated Section 8(a)(1) and
(3) of the Act by failing to make A&S benefit payments
to Laughlin from January 30 through February 14, 1980
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Company, as set forth in section
III, above, occurring in connection with the operation of
the Company described in section I, above, have a close,
intimate, and substantial relation to trade , traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
1192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Company has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom, and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that the Company unlawfully withheld
payments under its accident and sick benefit plan to the
employees named below, I recommend that the Compa-
ny be ordered to make them whole for the loss of bene-
fits by payment to each of them the sum of money equal
to the amount he normally would have received under
the accident and sick benefit plan between the dates set
forth below. Interest is to be paid thereon and is to be
computed in the manner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977).'
Payments are to be made for the following periods:
John T. Dumesnil January 8 to February 18,
1980
Richard M. Holt January 8 to February 29,
1980
Arthur Henry Sr. Amount due, if any, to be
determined in a compliance
proceeding
Chester F. Portier January 8 to February 1,
1980
' See generally Isis Plumbing Co, 138 NLRB 716 (1962)
Percy A. Bland Jr. January 8 to April 28, 1980
Charles O. Broussard January 8 to April 28, 1980
Miguel J. Herbert January 8 to April 21, 1980
William P. Schulze January 30 through
February 14, 1980
Jack Hart Amount due, if any, to be
determined in a compliance
proceeding
Melvin R. Laughlin January 30 through
February 14, 1980
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. OCAW and its Locals 4-23 and 4-367 are, and each
is, a labor organization within the meaning of Section
2(5) of the Act.
3. The Company violated Section 8(a)(1) and (3) of the
Act by withholding benefits under its accident and sick
benefit plan from employees during a strike when such
employees were eligible for coverage under that plan be-
cause of physical disability and such employees had not
enmeshed themselves in ongoing strike activity by pick-
eting or otherwise showing public support for the strike.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]