291 N.L.R.B. 613 (N.L.R.B. 1988)

Texaco, Inc

National Labor Relations Board - Board DecisionsNov 5, 1988

291 N.L.R.B. 613 (N.L.R.B. 1988)

TEXACO INC 613 Texaco, Inc and Sylvester Albert Cole and Gerald Steven Bowers and Thomas J Brockman and James M Burks and Robert J Crilley and Adolfo 0 Galeon and Steve Geer and Daniel Van Ausdoll Cases 21-CA-18642, 21-CA- 19235-1 21-CA-19235-2 21-CA-19235-3 21-CA-19235-4 21-CA-19235-5 21-CA- 19235-6 and 21-CA-19235-8 November 5 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On March 6 1981 Administrative Law Judge Maurice M Miller issued the attached decision The General Counsel various of the Charging Par ties and the Respondent filed exceptions and briefs in support of the exceptions The Respondent also filed an answering brief to the exceptions of the General Counsel and the Charging Parties There after the Respondent filed a motion for oral argu ment or in the alternative for leave to file a sup plementary brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and record in light of the exceptions briefs and motion and has decided to affirm' the judge s rulings find ings and conclusions only to the extent consistent with this Decision and Order The pertinent facts are as follows In 1980 the Respondent maintained two facilities in the Los Angeles area and a plant in Carson California The Union Oil Chemical and Atomic Workers Union Local 1 128 represented 570 employees at the former facilities and 27 at the latter Contracts cov ering these employees contained wage reopener provisions and pursuant to those provisions nego tiations took place in late 1979 and early 1980 2 On January 7 the Union notified the Respondent that a strike was planned for January 8 with picketing to begin at 4 p in on that date When the parties met on January 8 the Re spondent gave the Union copies of a document en titled Employee Benefits Procedures in Case of a Strike Therein the Respondent explained that all accident and sick (A&S) benefits would be discon tinued on the commencement of a strike except in those cases involving industrial accidents or inju rtes The Respondents A&S benefits plan incorpo The Respondents motion for oral argument is denied because the record the exceptions and the briefs adequately present the issues and the positions of the parties The Respondents motion for leave to file a supplementary brief is also denied for the same reason 2 All dates are in 1980 unless otherwise indicated rated by reference into each contract provided for such benefits to be paid to employees who had worked for the Respondent at least 1 year for either occupational or nonoccupational illness or disability When the strike commenced on January 8 seven employees had been receiving A&S benefits Two employees incurred nonoccupational disability inju ries the weekend preceding the strike The Re spondent conceded that but for the strike each of the nine workers would have continued to receive or would have begun to receive A&S benefits However as found by the judge when the strike began the Respondent treated each of these work ers as if he were on strike and pursuant to its de Glared policy the Respondent discontinued or denied A&S benefits to them The Union subsequently filed a charge alleging that the Respondent unlawfully terminated fringe benefits However on March 29 the Respondent and the Union entered into strike settlement agree ments and memoranda of agreement in which the parties agreed inter alga to dismiss all pending liti gation specifically including unfair labor practice charges and to file no new litigation growing out of or related to the strike 3 Thereafter the Union requested withdrawal of its charge and the request was granted The judge relying on Emerson Electric Co 4 found that the Respondent had violated Section 8(a)(3) and (1) of the Act by discontinuing the pay ment of A&S benefits to eight employees5 who had been receiving or who had become qualified to re ceive such benefits, on the commencement of the lawful economic strike by the Union The judge further found that the Respondent had violated 3 Specifically each of the memoranda of agreement was in full and complete settlement of all issues negotiated Each settlement included a provision entitled Lump Sum Payment that stated that In consideration of the Union s agreement to withdraw all contrac tual grievances and NLRB charges and court proceedings arising out of the Company s administration of employee 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 pay ment of up to $150 to all employees to cover premiums for the hos pital surgical major medical benefits plan assumed 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 receiv tug A&S benefits such benefits shall be resumed at the time the strike is officially discontinued if satisfactory evidence of continuing disability is established Additionally each Strike Settlement Agreement obligated each party to dismiss any litigation pending against the other specifically including arbitrations unfair labor practice charges law suits and grievances relat ed to any of the benefit plans and to promise that no new litigation growing out of or related to the strike will be filed 246 NLRB 1143 (1979) enfd as modified 650 F 2d 463 (3d Cir 1981) cert denied 455 U S 939 (1982) Although there were nine named alleged discriminatees the judge concluded that Casper Buol s claim was barred by Sec 10(b) of the Act 291 NLRB No 96 614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Section 8(a)(1) of the Act by notifying its employ ees that if they were to engage in a lawful strike the Respondent would discontinue A&S benefits for employees In remedying these violations the judge followed the standard set forth in Emerson Electric supra and ordered the Respondent to pay each employee whatever A&S benefits he was enti tled to receive from January 8 until he had recov ered from his disability or until the date on which he actively participated in strike activity or public ly supported the strike In Texaco Inc 285 NLRB 241 (1987) the Board reaffirmed its holding in Conoco Inc 6 decided after the judge s decision here that a disabled em ployee s participation in a strike no longer operates to disqualify or limit such employees entitlement to reimbursement for accident or sick benefits with held by an employer because of a lawful strike In that Texaco case the Board further set forth gov erning principles for determining when an employ er s suspension of benefits to disabled employees on commencement of a strike violates the Act 7 It held that withholding accrued benefits to disabled employees during a strike can be a violation of the Act but that an employer may successfully defend its action by showing it had a legitimate and sub stantial business justification for the cutting off of benefits such as inter alia an explicit waiver by the Union In Energy Cooperative Inc 8 the Board ad dressed a question left open in that Texaco case holding that waivers of contractual benefits con tained in strike settlements may result in dismissal of charges filed by individual employees over the denial of such benefits Energy Cooperative also em phasized that Texaco case s holding that such a waiver is effective only if it is clear and unmistak able More recently in Texaco Inc 290 NLRB 1181 (1988) the Board applied the principles articulated in its lead Texaco case and in Energy Cooperative discussed above to basic facts virtually indistin guishable from those in this case The Board re versed the administrative law judge s finding that the respondent there had violated the Act when it ceased making A&S payments to disabled employ ees during the course of the strike there The Board dismissed the complaint It found initially that the respondent had withheld an accrued bene fit and did so on the basis of the strike to the detri 6 265 NLRB 819 (1982) enfd 740 F 2d 811 (10th Or 1984) 7 In that Texaco case the Board expressly overruled the Emerson Elec inc theory of violation relied on by the judge here and held that wheth er an employers withholding of accident and sick benefits to disabled employees during a stoke violates Sec 8(a)(3) will be resolved by appli cation of the Great Dane test for alleged unlawful conduct Texaco Inc supra 285 NLRB 241 citing NLRB v Great Dane Trailers 388 U S 26 (1967) 8 290 NLRB 635 (1988) ment of the employees right to engage in a lawful economic strike It also held that the discontinu ance of the benefits on the basis of the strike war ranted an inference of discriminatory intent and thus constituted a violation of Section 8(a)(3) and (1) unless the respondent sustained its burden of proving a legitimate and substantial business justifi cation It then found such a justification Specifical ly it found that the parties strike settlement agree ments established that the local unions clearly and unmistakably had waived their sick and disabled employees right to receive contractual A&S bene fits for the duration of the strike The Board fur ther held that for the reasons set forth in its lead Texaco case and Energy Cooperative it would give effect to the strike settlement agreements there Applying the principles of the Board s recently issued Texaco decision to basic facts here that are as noted above virtually indistinguishable from those there we shall dismiss the complaint We first find for the reasons set forth in that Texaco de cision that under a Great Dane analysis the General Counsel has established a prima facie case of a vio lation in the withholding of the A&S benefits here We next find however that the Respondent has established a legitimate and substantial business jus tification for the cessation of those benefits This finding is based on that recent Texaco case in which the A&S benefits and strike settlement agreements involved are identical in all relevant re spects to those in the present case Thus for the reasons fully articulated in that Texaco case we find that the strike settlement agreements here clearly and unmistakably waived these disabled em ployees right to receive contractual A&S benefits for the duration of the strike 9 We thus conclude that the Respondent did not violate Section 8(a)(3) and (1) by terminating A&S benefits to the employ ees in question 10 In this regard because we have found that the Respondents suspension of the A&S benefits was not unlawful it follows that the Re 8 Texaco Inc supra at 1183 Chairman Stephens notes that none of the factors discussed in his con curnng opinion in Energy Cooperative as possible barriers to the Board s reliance on a settlement are present in this case Member Cracraft would not rely on either the zipper clause contained in the memorandum of agreement or the provision providing for resump tion of benefits at the end of the strike as evidence of the parties intent that individuals rights to A&S benefits were waived Rather in agreeing with her colleagues that the Union waived the employees contractually provided A&S benefits during the term of the strike Member Cracraft relies on the language of the lump sum payment section of the memoran dum of agreement in which the parties agreed on a specific lump sum payment in consideration for the Union s relinquishment of all claims ans ing from the Respondents administration of employee benefit plans during the strike to find such a waiver 10 In view of our disposition of this case we find it unnecessary to ad dress the General Counsels exceptions with respect to the judge s con clusion that Casper Buol s claim was time barred TEXACO INC 615 spondent s announcement of the suspension of such benefits similarly was not unlawful Accordingly we shall dismiss the complaint in its entirety ORDER The complaint is dismissed Gordon A Letter for the General Counsel William D Evans of Los Angeles California for the Re spondent Leah Van Arsdale of Lancaster California for Charging Party Gregory G Kennedy (Cantrell & Green Inc) of Long Beach California for other Charging Parties DECISION STATEMENT OF THE CASE MAURICE M MILLER Administrative Law Judge On a charge filed on January 31 1980 by Sylvester Albert Cole (Complainant Cole) and duly served the General Counsel of the National Labor Relations Board caused a complaint and notice of hearing to be issued on April 15 1980 which was subsequently served on Texaco Inc designated as Respondent within this decision Subse quently on parallel charges concurrently filed by Gerald Steven Bowers Thomas J Brockman James M Burks Robert J Crilley Adolfo 0 Galeon Steve Geer and Daniel Van Ausdoll (Complainants) on July 3 1980 and by Casper Buol (Case 21-CA-19283) on July 18 1980 thereafter-which were amended similarly on August 19-the General Counsel caused his order consolidating cases consolidated amended complaint and amended notice of hearing dated August 22 1980 to be issued and served on Respondent Respondent was charged with the commission of unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act Respondents answer duly filed conced ed certain factual allegations within the General Coun sel s consolidated amended complaint but denied the commission of unfair labor practices Pursuant to notice a hearing regarding these consoli dated matters was held on September 22-23 1980 in Los Angeles California before me The General Counsel Respondent and Complainants other than Complainant Cole were represented by counsel Though Complainant Cole reported representation by counsel for the record his counsel noted no appearance Each party was afford ed a full opportunity to be heard to examine and cross examine witnesses and to introduce evidence concerning pertinent matters When the hearing convened the General Counsels representative moved to delete all references to Casper Buol s charge (Case 21-CA-19283) found within his consolidated amended complaint Buol s charge the General Counsels representative conceded had been filed beyond the 6 month limitation period which Section 10(b) of the statute defines Concurrently with his motion however the General Counsels representative declared his intention to present the case regarding Respondents purportedly discriminatory treatment of Buol because he-together with his fellow Complainants listed within the consolidated amended complaint here- had allegedly been subjected to comparable discnmina tion and because his case could therefore properly be considered like theirs ripe for determination based on their several timely filed charges The General Counsels motion was granted Subse quently Buol was consistent with the General Counsels declaration of purpose summoned to testify On the basis of his testimony the General Counsels representative presently contends that despite the fact that his charge may no longer be considered compassed within the group of charges on which the consolidated amended complaint stands predicted he should be considered enti tied to remedial relief' omparable with that which Complainants here-within the General Counsels view-should receive This contention will be consid ered subsequently within this decision Since the hearing s close the General Counsel s repre sentative Respondents counsel and Complainants coun sel have filed briefs that have been duly considered On the entire testimonial record documentary evi dence received and my observation of the witnesses I make the following FINDINGS OF FACT I JURISDICTION Respondent raises no question regarding the General Counsels jurisdictional claims On the consolidated amended complaints relevant factual declarations-spe cifically those set forth within the second paragraph thereof-which are conceded to be correct and on which I rely I find that Respondent was throughout the period with which this case is concerned and remains an employer within the meaning of Section 2(2) of the Act engaged in commerce and business operations which affect commerce within the meaning of Section 2(6) and (7) of the statute Further regarding the pies ently applicable jurisdictional standards I find assertion of the Board s jurisdiction in this case warranted and necessary to effectuate statutory objectives II THE LABOR ORGANIZATION CONCERNED Oil Chemical and Atomic Workers Union Local 1 128 (the Union) was throughout the period with which this case is concerned and remains a labor organization within the meaning of Section 2(5) of the Act which admits certain employees of Respondent to membership III UNFAIR LABOR PRACTICES A Issues This case presents primarily questions of law For present purposes those questions have been summarily formulated within the General Counsels brief as fol lows I Did Respondent commit unfair labor practices within the meaning of Section 8(a)(1) and (3) of the statute when it threatened to terminate and did ter 616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD urinate the payment of accident and sick benefits (designated A & S benefits hereinafter) to nine des ignated discriminatees subsequent to January 8 1980 because their fellow workers had commenced a strike against Respondent at 400 pm on that date though the nine purported discriminatees were physically unable to work on and after January 8th for varying periods of time? 2 If so did any discriminatee subsequent to the stnke s commencement lose his entitlement to re ceive A & S benefits prospectively despite his con tinued illness or injury disability for some period subsequent to January 8th by affirmatively demon strating his support for the strike? The General Counsel relying on the Board s recent deci sion in Emerson Electric Co 246 NLRB 1143 (1979) seeks affirmative responses regarding his claim that Re spondent s conduct doubly violated the statute He con cedes that-consistent with this Board s caveat set forth within its Emerson Electric decision-some designated discriminatees may have lost their right to continue re ceiving Respondents accident and sick (A&S) benefit payments despite their still existent sickness or disability by public demonstrations of support for their fellow workers strike but seeks determinations regarding pre cisely when their A&S benefit entitlements were lost Respondent however seeks a determination that the statute properly construed fails to proscribe its conduct contends that Emerson Electric was wrongly decided and suggests that-because none of Complainants fellow workers had crossed their Unions picket line to resume work and because no Complainant had affirmatively disavowed the strike-determinations should be consid ered warranted despite this Board s Emerson Electric de cision that Complainants had enmeshed themselves in the ongoing strike thereby sufficiently to terminate their rights to receive continued A&S benefits Further Respondent contends that a strike settlement agreement subsequently reached between Complainants recognized union representative and Respondents management whereby Respondent was discharged from any and all obligations regarding A&S benefit payments should be considered sufficient to preclude the General Counsel s present complaint prosecution Finally Respondent sug gests that should it be found liable for continued A&S benefit payments covering periods of sickness or disabil ity during the strike with which this case is concerned various payments made to several Complainants during the strike and subsequent thereto pursuant to California s Unemployment Insurance and Labor Codes should be considered setoff payments deductible from whatever A&S benefit payments those Complainants might be ret rospectively considered qualified to receive B Facts 1 Background a Respondents business Respondent functioning as a Delaware corporation engages in the refining processing and sale of petroleum products and byproducts It maintains two facilities within the Los Angeles California harbor area The firm s Los Angeles refinery (LAP) with its related Long Beach terminal employs about 570 workers represented by the Union above designated Respondents sulfur re covery plant (SRP) in Carson California employs about 27 workers whom the Union above designated also rep resents within a bargaining unit separately defined Both facilities function subject to the direction of LAP s man agement throughout the period with which this case is concerned Melvin C Sittel served as LAP s supervisor of employee relations b The collective bargaining relationship During calendar year 1979 Respondent and the Union negotiated and signed collective bargaining contracts covering designated LAP and SRP bargaining units sep arately both agreements had been negotiated with Janu ary 8 1979 effective dates for comparable 2 year terms Inter alia both contracts provided for periodic pay ments to contractually covered workers pursuant to Re spondent s designated accident and sick benefit plan Thereunder LAP and SRP employees who had worked for Respondent for at least 1 year could qualify for A&S benefits should their absences from work be necessitated by either occupational or nonoccupational illness or dis ability Both contracts further contained wage reopener provi lions Pursuant to notices given thereunder union repre sentatives met with Respondents spokesman on Novem ber 28 1979 to commence negotiations regarding wages health and welfare and vacations Discussions looking toward a new contractual consensus particularly con cerning these matters were not however successful On Monday January 7 1980 union representatives notified Respondents spokesman during bargaining sessions con ducted separately for each bargaining unit concerned that union workers were prepared to commence orderly plant shutdowns at 12 01 am on Tuesday January 8 The firm s negotiators were further notified that picket lines would be initiated by 4 p in on the designated date c The strike When the negotiators met January 8 union spokesmen confirmed their intention to establish picket lines later that day Respondents representatives thereupon dis tributed copies of a document designated Employee Benefits Procedures in Case of Strike With particular reference to Respondents accident and sick benefits plan the union negotiators were therein notified that Upon commencement of a strike all A&S Bene fits will be discontinued except in those cases in volving industrial accident or injury A & S benefits will be continued to those employees who are dis abled due to industrial injury until medically re leased by their doctors or until expiration of such benefits in accordance with the Plan s benefit sched ule whichever occurs first Decision will be reserved regarding the payment of A & S benefits upon termination of the strike for TEXACO INC 617 employees who become disabled during the strike and whose disability continues beyond the termina tion of the strike Decision will be reserved regarding the payment of A & S benefits upon termination of the strike for employees who become disabled during the strike and whose disability continues beyond the termma tion of the strike Decision will also be reserved regarding the re sumption of A & S benefits which were discontin ued at the beginning of the strike for those employ ees who are still disabled after the termination of the strike Under no circumstances will A & S benefits be payable if they would not have been payable in the absence of a strike Copies of Respondents bulletin which encompassed the policy statement quoted were distributed to union repre sentatives the Union s Texaco unit chairman eight workers (members of the Union s negotiating committee) and six visitors (four of them LAP or SRP bargaining unit employees) Following a beef caucus the Union s negotiators re ported their objection in principal [sic] to Respond ent s position that all A&S benefits save those based on disabilities derived from industrial causes would be dis continued because of their forthcoming strike the union representatives contended that their basic contract was still viable Respondents spokesmen replied however that employee benefits were based on the concept that concerned employees were actively at work earning wages obviously they contended workers on strike would not be earning wages nor would they be accumu lating vested rights Shortly thereafter on Tuesday January 8 at 4 p in the Union commenced concededly economic strikes at Respondents LAP and SRP facilities These strikes were 100 percent effective with respect to both facilities so long as they lasted Except for a single probationary bar gaining unit employee who entered Respondents Los Angeles plant and worked for about 4 hours no bargain ing unit workers crossed union picket lines The strike lasted 12 weeks On Saturday March 29 Respondent and union negotiators signed concurrent memoranda of agreement and strike settlement agreements regarding both Respondents Los Angeles area facilities The strike agreements designated Tuesday April 1 as the date on which both LAP and SRP employees would report to resume work 2 Respondents denial of accident and sick benefits When the strike-hereinabove noted-began there were nine hourly paid workers not currently working at Respondents truck facilities who had previously report ed in sick or disabled Seven of these workers-Com plainants Cole Bowers Crilley Galeon Geer and Van Ausdoll plus Casper Buol-had been receiving A&S benefits for periods of absence varying in length but en compassing their Tuesday January 8 absences the strike s inception Two workers-specifically Complain ants Brockman and Burks-had become disabled by virtue of nonoccupational injuries within the 2 day week end period directly preceding the strikers commence ment Neither had reported for work on Monday Janu ary 7 concededly their eligibility to receive benefits pursuant to Respondents accident and sick benefit plan would have commenced-under normal circumstances- on January 8 before their Union s late afternoon strike call Under Respondents benefit plan inter alia regular full time employees with at least 1 full year of continu ous service who become temporarily ill or injured from nonoccupational causes are considered eligible for A&S benefits Such benefits calculated to match the con cerned worker s normal salary at either full pay or half pay are provided pursuant to a schedule which defines his successive periods of eligibility for full pay and half pay depending on his years of service and the length of his compelled absence Thus workers with 1 completed year of service are considered eligible for benefits equiv alent to their full pay for up to 4 weeks and half their pay for up to 2 more weeks should their disability con tinue Workers with 10 or more years of service may qualify for up to 13 weeks of benefits calculated to match their full pay followed by up to 39 weeks of half pay benefits Respondents hourly paid employees how ever receive no benefits for the first scheduled working day within any period of absence due to illness or nonoc cupational injury Respondent concedes that but for their Union s deter mination to strike the nine workers noted would have continued to receive or would have begun to receive properly computed A&S benefits covering their periods of illness or injury With the strike s inception however each concerned worker was treated as if he were on strike and had joined with assisted or supported his fellow strikers Consistently with Respondents previ ously declared policy Complainants Cole Bowers Cril ley Galeon Geer and Van Ausdoll together with Buol who had received A&S benefits through Tuesday Janu ary 8 were denied further benefits thereafter Complain ants Brockman and Burks who had never been formally declared eligible for January 8 benefits were likewise denied benefit payments When this case was heard stipulations were proffered and noted for the record that under Respondents desig nated benefit plan January 7 would have been a waiting day for both Brockman and Burks and that they had really been entitled to receive benefit payments cover ing January 8 regardless of Respondents defined strike policy regarding such payments On various dates subsequent to January 8 these con cerned workers were notified that their A&S benefits had been discontinued Some were notified personally through telephone calls Further within a January 17 mailed notice to All Employees Respondents workers were provided with copies of the firm s policy statement relative to their strikes effect on Respondents various Employee Benefit plans which had previously been delivered to union negotiators during their January 7 bargaining session here noted 618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On January 31 Respondents Los Angeles plant man ager wrote W J Braughton secretary treasurer of the Union s Long Beach local purportedly to acknowledge his receipt of the latter s grievance filed on January 22 regarding the firm s arbitrary and unilateral discontinu ance of accident and sick benefits for Respondents Los Angeles facility workers In reply Plant Manager Maf fuccio recapitulated the position that Respondent had taken on January 8 concerning discontinuing certain A&S benefits on a strike s commencement Maffuccio commented further that when employees elect to withhold their services by striking the Company is not obligated to pay wages during the strike nor is it obligated to continue wage continuation programs such as A&S which are fully paid for by the Company Confronted with Respondents consequent rejection of Braughton s grievance the Union filed a charge with this Board s Region 21 Office (Case 21 -CA-18801 ) contend mg that the firm had unlawfully terminated certain fringe benefits for current strikers When this case was heard I rejected proffered exhibits which compassed this union charge and certain related documents I have reconsidered my ruling Rather than receiving the proffered exhibits however I will take of facial notice regarding only those Regional Office records which reveal that the charge in question was really filed and subsequently withdrawn On April 15 1980 however union counsel requested the designated charge s withdrawal under circumstances which will be considered subsequently within this decision Counsel s withdrawal request was granted Respondent would make specified lump sum payments calculated to recompense employees and make them whole for expenditures that they might have been re quired to make during the strike to preserve their cover age under the firm s fringe benefit programs Consistent with strike settlement and memorandum agreement provisions noted the Union s charge men tioned above was subsequently withdrawn Within their concurrent memorandum agreements the parties further recorded their understanding that em ployees not able to report for work due to sickness or disability which had commenced after the strike began would be eligible for A&S benefits beginning with the strike s termination and that benefits for employees dis abled before the strike began who had been receiving A&S benefit payments would be resumed concurrently with the strike s official discontinuance should their con tinuing disability be established by satisfactory evidence So far as the record shows these commitments were complied with While the strike was in progress five Complainants had recovered from their prior disabilities thereafter none of these would have been eligible of course for continued A&S benefits Complainant Cole s prestrike disability however continued When this case was heard he had not yet recovered sufficiently to resume work and was still receiving A&S benefit pay ments which had been renewed following the strike s termination Concerning Complainants Geer and Van Ausdoll together with Casper Buol the record warrants determinations which I make that their disabilities per sisted for varying lengths of time into early April sub sequent to the strike s discontinuance They received benefit payments personally for their relatively short periods of poststrike disability 3 Subsequent developments As previously noted negotiations between Respondent and union representatives finally produced strike settle meats and memorandum agreements regarding both Re spondent s Los Angeles area facilities on March 29 the requisite documents memorializing their consensus were signed Both strike settlement documents inter aha con tamed a provision here noted solely in relevant part which read as follows It is further understood that ( 1) each party will dis miss any and all litigation now pending against the other or its agents i e unfair labor practice charges related to any of the benefit plans and (3) that it is agreed that no new litigation growing out of or related to the strike will be filed Consistent with this provision the Union s charge pre vioulsy noted was subsequently withdrawn Within their concurrent memorandum agreements Respondent and the Union recorded their consensual understanding that In consideration of the Union s agreement to with draw NLRB charges arising out of the Company s administration of employee benefit plans during the strike and the Union s agreement not to institute any further actions arising out of said cir cumstances C Discussion and Conclusions As previously noted the General Counsel contends that Respondent committed unfair labor practices within the meaning of Section 8(a)(1) and (3) of the statute when it notified employees within its Los Angeles area facilities that accident and sick benefits payable to medi cally excused workers would be discontinued on the commencement of a strike pursuant to their collective bargaining representatives call and further by discon tinuing such benefits on that strike s commencement In this connection the General Counsel emphasizes that Re spondent s management had declared its determination to discontinue benefit payments to those workers who would otherwise have been receiving them when a strike which would clearly affect its Los Angeles area facilities had prospectively been proclaimed but before a definitive conclusion-regarding how widespread or effective such a strike would be-could have been reached and before Respondent could have determined whether any of the employees who were unable to work had through statements or some overt conduct separate ly ratified or actively supported the strike Respondent contends that it proceeded lawfully when it declared that A&S benefits would be discontinued and thereafter when it discontinued them pursuant to the very sound and fundamental premise that employers TEXACO INC cannot be required by law or otherwise to finance strikes against themselves The firm argues that the bene fits in question represented a wage continuation plan and that it should not be considered required to continue the payment of wages to strikers-specifically including those employees who despite their temporary inability to work could reasonably be deemed strike supporters Respondent suggests that no prior investigation calcu lated to determine whether medically excused workers individually supported their Unions strike would have been warranted because their support for the strike could legitmately have been presumed The firm argues that such a presumption could reasonably have been derived because those medically excused workers were without exception longtime union members covered by their collective bargaining representatives subsisting contract whose dues were being checked off' by Respondent s management their Union s prior 10 week strike about 11 years previously had been 100 percent effective none of them had previously disavowed the strike some of them had before the strike been given union leadership post tions and neither these workers nor their fellow work ers within the struck bargaining units had-previously or thereafter-crossed their Union s picket lines for the pur pose of resuming work Further Respondent contends that its presumptions validity should now be considered retrospectively confirmed because the record reveals that none of the sick or disabled workers had specifically protested subsequently their A&S benefits discontinu ance that their Union had merely protested in pnnci ple with respect thereto and that some of the workers concerned have since conceded that they supported the strike-specifically by their refusal to cross union picket lines by their personal picket services and by their perform once of services connected with the strike s successful main tenance-following their recovery during the strike from disabling illnesses or physical injury In this connection Respondent would have this Board note particularly the failure of union representatives to protest that workers who were temporarily sick or dis abled would not be considered strike participants The firm s management-so the argument runs-was never placed on notice that employees who were then unable to work were even considering exercising their right to refrain from activities in support of their Union s strike In Southwestern Electric Power Co 216 NLRB 522 (1975) this Board had determined that where a strike was effective the concerned employer could reasonably presume that union members previously granted sick leave supported the strike solely because the strike was effective and the concerned employees were union mem bers Furthermore their subsequent ratification of the strike was recognized as demonstrating the reasonable ness of their employers presumption as was their con temporaneous failure to protest his discontinuance of their sick leave benefits and their post hoc testimony that they would have supported the strike had they not been disabled Accordingly the Board had concluded that the respondent firm there had not flouted the stat ute s mandate when it refused to subsidize the strike then in progress by continued disability payments 619 The rationale that sustained Southwestern Electric was however specifically rejected when the Board decided Emerson Electric Co 246 NLRB 1145 (1979) There the Board declared that In rejecting this [Southwestern Electric] rationale we conclude that an employer may not rely on such speculative grounds to justify the termination of ex isting disability benefits to employees which had accrued to them as a result of past work per formed Employees granted paid sick leave so the Board found could properly claim a Section 7 right to refrain from declaring their position regarding a strike while medi cally excused Their employers consequently would no longer be permitted to require such sick or disabled em ployees to disavow strike action specifically during their sick leave in order to receive disability benefits To permit the termination of such benefits to certain work ers solely because of strike activities conducted and maintained by their fellows would so the Board de Glared penalize employees who had not yet acted in sup port of their fellow workers strike Here Respondent contends vigorously not that Emer son Electric should be considered distinguishable but that the Board s decision derives from fallacious premises and should rather be considered wrongly decided Within his brief Respondents counsel marshalls several substantial arguments-bottomed on practical legal and policy considerations and buttressed with numerous case citations and references to recognized legal authorities- proffered in support of his position As counsel recog nizes however this Board s administrative law judges hold no mandate that permits them to disregard formu lated Board policy Whatever their merits therefore counsel s several challenges regarding Emerson Electric s purportedly deficient legal underpinnings less than per suasive rational justification and possible practical difft culties cannot command consideration Consistent with the Board s decision therefore I find Respondents contention that Complainants were proper ly considered supporters of their Union s strike from its commencement and that they were therefore properly denied accident and sick leave benefits because they had been longtime union members because none of them had notified Respondents management that they disavowed the strike because none of them had crossed picket lines to resume work during the strike when they were no longer disabled because they had participated in the vote whereby their Union s parent body had been au thorized to call a strike because some of them may pre viously have held union leadership positions or relied on their Union s help regarding pressing grievances because some of them had joined and supported a strike that their Union had conducted at Respondent s facilities about 11 years previously because they may have sought and re ceived current strike benefits or because they may have ultimately voted for ratification of their contracts post strike modifications-lacking in merit Regarding Respondents contention that accident and sick benefits provided pursuant to plan may be drawn 620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD only when a worker is prevented from working solely because of some illness or accident within the plan s contemplation and that Respondent could reasonably consider a worker s presumed sympathy for some pro spective strike a concurrent disqualifying reason for his failure to report for work little need be said The record will not warrant a determination that when A&S benefits were discontinued Respondent was aware regarding any demonstrable affirmative support for the strike manifested-previously or contemporaneously-by bene fit recipients nor was the firm s management aware re garding any disabled employees possibly subjective deci lion that he would join or support the strike if he could Moreover had some disabled worker promptly decided to support the strike that subjective decision-like a pos sible contrary decision to withhold strike support and report for work-could not have been manifested forth with for medical reasons Such a subjective decision therefore could at most be considered a potential or in choate reason for the concerned worker s absence clear ly it could not reasonably be considered a concurrent proximate cause for his continued failure to report be cause it could not objectively have been manifested In short pending some A&S beneficiary s physical recov ery he could reasonably be considered absent solely because of his proven illness or disability though he might have been meanwhile looking forward to with holding his services for other reasons Workers can only withhold their services when able to do so they can only manifest support for a strike when they become able to participate in supportive conduct With matters in this posture I conclude that-like the sickness and accident benefits considered in this Board s Emerson Electric decision-the benefits denied here were benefits due the recipients for past services which were withheld because of the strike activity commenced by their fellow workers I find a determination warranted that Respondents January 8 pronouncement regarding its prospective discontinuance of such benefits interfered with the statutorily protected right of Complainants to refrain from declaring their position concerning their Union s strike while they were medically excused and thus violated Section 8(a)(1) of the statute Further I conclude that Respondents discontinuance of A&S bene fits payable for disabilities demonstrably present on Jan uary 9 and thereafter penalized Complainants because of their purely presumed connection with strike activity which their fellow workers had initiated and therefore constituted discrimination statutorily proscribed Previously within this decision references have been made to the General Counsels contention that despite Casper Buol s failure to file his charge regarding Re spondent s statutory violations within Section 10(b) s 6 month limitation period he should be considered a dis criminatee together with Complainants and should be considered eligible for comparable relief Essentially the General Counsels representative seeks a determination that because Complainant Cole and seven more Com plainants had previously filed timely individual charges concerning Respondents statutorily proscribed discrimi nation Buol s designation as someone subjected to com parable discriminatory treatment at the same time and under the same circumstances for the same reasons would not constitute a statutorily impermissible expan sion regarding Complainants timely filed charges I have not however been persuaded The Supreme Court has of course held that charges merely set in motion this Board s investigations regarding unfair labor practices and that such inquiries need not be confined to the precise particularizations of some charge NLRB v Fant Milling Co 360 U S 301 (1959) Consistent with the Supreme Court s view this Board has sometimes named additional discriminatees within a complaint though charges had never previously been filed within the 10(b) limitation period specifically referring to such individuals El Cortez Hotel v NLRB 390 F 2d 127 (9th Cir 1968) NLRB v Dinion Coil Co 201 F 2d 484 (2d Cir 1952) The cases cited however derived from charges that labor organizations had filed on behalf of employees those charges which dealt specifically with multiple claims of discrimination had inter alia com passed broadly phased references to further statutory violations by these and other acts whereby the charged employers had purportedly interfered with re strained and coerced employees regarding their exercise of rights statutorily guaranteed No comparable license to broaden a complaints thrust can be found as I see the matter within the charges with which we are presently concerned The Complainants charges do contain similar open ended accusatory language the net which such language within a charge would normally cast however must be considered-within my view-circumscribed generally by the stated Basis of the Charge detailed within that documents body Each Complainants charge speaks of discrimination against the employee specifi cally named solely save for Complainant Cole the charges had been separately drafted and filed by Com plainants common counsel presumably for the precise purpose of separately vindicating each designated individ ual s rights rather than the conjoint rights of all Re spondent s prestrike A&S benefit recipients considered as workers sharing a commonly grounded claim I would conclude therefore that Complainants charges-filed on behalf of specifically designated individuals with each seek ing redress for his separately suffered individual loss of ac cident and sick leave benefits-cannot properly be expand ed sufficiently to permit Board cognizance of Buol s claim Because the question of this particular worker s status regarding the present proceeding may however reason ably be considered close and because the Board should its consideration with respect thereto be required hereaf ter may conceivably conclude that his claim of discrimi nation merits cognizance and should be resolved His eli gibility for some degree of remedial relief will be dis cussed further D The Significance of the Union s Strike Settlement Respondent contends however that the General Counsels consolidated amended complaint should be dis missed regardless of Emerson Electric s substantive thrust because Respondent and the Union with the latter functioning as the statutorily validated exclusive representative of Complainant Cole and his fellow Com { TEXACO INC 621 plainants have negotiated a strike settlement and related contractual commitments pursuant to which the Union has withdrawn previously filed charges challenging Re spondent s strike related discontinuance of accident and sick benefit payments In this connection Respondents counsel presses sever al arguments purportedly derived from determinative statutory provisions relevant Board and court decisions and related policy considerations He suggests 1 That this Board with due regard for those limita tions which Section 8(d) s provisions lay down when de fining its proper statutory role lacks the power to re quire remedial action from Respondent which would es sentially rewrite and modify collectively bargained agreements whereby Respondent had in consideration of several specified financial commitments been discharged from conceivable obligations to provide A&S benefit payments for qualified workers calculated to cover a strike period 2 That because the Union pursuant to statute func tions as complainants collective bargaining representa tive exclusively that body s commitment to withdraw charges filed in their behalf and to refrain from filing fur ther charges bottomed on Respondents discontinuance of their benefit payments should be considered a collec tively bargained extinction regarding their claims ne gotiated as part of a package settlement and consequent ly binding on them as union members 3 That this Board s determination to proceed based on Complainants several individually filed charges would conflict with statutory declarations of policy spe cifically those found in Sections 201(a) and 203(d) of the Labor Management Relations Act favorable to settle ments reached through processes of conference and col lective bargaining 4 That the strike settlement agreements negotiated by union representatives and Respondents management should be considered sufficient to estop Complainants from pressing their charges and the General Counsel from proceeding thereon because Respondent has satis fled its various commitments and because the General Counsels prosecution based on Complainants charges would therefore work a patent injustice by depriving Re spondent of the benefits presumptively derived from its bargain 5 That should this Board recognize complainants claims despite the parties negotiation of strike settle ment agreements which reflect substantial benefits gained for all bargaining unit workers such determinations would subject Respondent to clearly unwarranted fur ther burdens 6 That this Board has heretofore recognized the per suasive thrust of considerations which have been noted above because it has found union respondents guilty of unfair labor practices when they have commenced ac tions prejudicial to their members in derogation of am nesty commitments negotiated in connection with strike settlement agreements The question presented by Respondents motion re garding the significance which the Board should attach to Respondents strike settlement agreements and con joint contractual commitments comports with the com parable question considered and resolved by Administra tive Law Judge Ricci within his Emerson Electric deci lion His ruling concerning respondents motion to dis miss received Board affirmation without further discus sion I find the Board s Emerson Electric decision dispose tive here Private agreements like those with which we are now concerned cannot preclude the Board s exercise of its statutory authority The Board acts in the public interest to enforce public not private rights National Licorice Co v NLRB 309 U S 350 364-365 (1940) Utility Work ers v Consolidated Edison Co 309 US 261 265-266 (1940) NLRB v Newark Morning Ledger Co 120 F 2d 262 267-268 (3d Cir 1941) Thus wherever private contracts conflict with [the Board s] functions they obvi ously must yield or the Act would be reduced to a futil ity J I Case Co v NLRB 321 U S 332 337 (1944) This policy rests on Section 10(a) of the statute which provides explicitly that the Board s power to proscribe unfair labor practices shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement law or otherwise Thus concerned parties cannot by contractual agreement divest the Board s function to operate in the public inter est Boire v Teamsters 479 F 2d 778 803 (5th Cir 1973) This principle has been applied to nullify employer union agreements which purportedly prohibited the filing of Board unfair labor practice charges (Machinists Lodge 743 v United Aircraft Corp 337 F 2d 5 8-11 (2d Cir 1964)) or which purportedly compromised employees remedial rights under the statute (Electric Workers IUE Local 613 v NLRB 328 F 2d 723 727 (3d Cir 1964)) as well as compacts between employees and individual workers to the same effect See NLRB v Ideal Donut Shop 347 F 2d 498 499 (7th Cir 1965) NLRB v Threads Inc 308 F 2d 1 8 (4th Cir 1962) Similarly agreements whereby unions and/or employers commit to themselves to withdraw their respective charges and election objections have been held not to bar the Board from later entertaining some new and timely charge filed by the purportedly committed Union concerned with the very same unfair labor practices NLRB v My Store Inc 345 F 2d 494 496 497 (7th Cir 1965) NLRB v T W Phillips Gas & Oil Co 141 F 2d 304 305-306 (3d Cir 1944) Consistent with settled legal doctrines therefore I conclude that the strike settlement agreements and memorandum agreements negotiated by Respondent and Complainants union representatives do not bar this Board s present exercise of its statutory authority The agreements confirm totally private consensual undertak ings acknowledged by their respective parties solely they represent nothing more than a bargain struck by private parties based on their respective estimates of probable benefits or losses which might accrue should their reciprocal tests of strength continue or possible liti gation result The public interest in preventing unfair labor practices cannot be entirely forclosed by a purely private arrangement no matter how attractive the ar 622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rangement may appear to the individual participants See Machinists Lodge 743 supra in this connection Within its brief Respondent cites Board decisions holding that a union s internal disciplinary procedures utilized to discipline members though normally permissi ble violate the statute when invoked in derogation of some amnesty agreement Operating Engineers Local 39 (San Jose Hospital) 240 NLRB 1122 (1979) Retail Clerks Local 1364 (Food Employers Council) 240 NLRB 1127 (1979) These cases however concerned agreements cal culated to restrain union conduct rather than consensual undertakings calculated to foreclose the filing or pros ecution of unfair labor practice charges Because the right of concerned parties to file charges enjoys express statutory protection from infringement through private agreements while their rights to engage in conduct that may or may not violate the law enjoy no such protec tion the cases are clearly distinguishable Substantially the so called package settlement which Respondent seeks to preserve does not within its par ticular provisions with which we are now concerned of fectuate statutory policies within my view Should the Board therefore decide to relieve Respondent from any responsibility to provide a remedy for conduct found statutorily proscribed such a decision would essentially condone both the purpose behind Respondent s conduct and that conduct s coercive consequences Employers who pursue courses of conduct later determined to con stitute unfair labor practices do so at their peril it would not be equitable to require particular employees disad vantageously affected-specifically Complainants-to absorb losses directly ascribable to their employer s unfair labor practices Electric Workers IUE Local 613 supra at 727 Mindful of those considerations I conclude that Respondents motion to dismiss should be and is denied IV THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE Respondents course of conduct set forth in section III above-because it occurred in connection with Respond ent s business operation set forth in section I above-had and continues to have a close intimate and substantial relationship to trade traffic and commerce among the several States Absent correction such conduct would tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce CONCLUSIONS OF LAW 1 Respondent Texaco Inc is an employer within the meaning of Section 2(2) of the Act engaged in coin merce and business activities that affect commerce within the meaning of Section 2(6) and (7) of the Act 2 Oil Chemical and Atomic Workers Union Local 1 128 is a labor organization within the meaning of Section 2(5) of the Act which admits certain of Respondent s employees to membership 3 On January 8 1980 and thereafter when Respond ent notified various employees (during a prospective strike which the Union had called) that accident and sickness benefits then being paid or considered payable to sick or disabled union members would be discontin ued Respondent interfered with restrained and coerced employees concerning their exercise of rights statutorily guaranteed within the meaning of Section 8 (a)(1) of the Act 4 When Respondent discontinued accident and sick ness benefit payments effective January 9 1980 for cer tarn employees who were union members-despite the fact that such employees had been receiving or had become qualified to receive A&S benefit payments before a lawful strike in which their fellow workers rep resented by the Union were then participating and de spite Respondents lack of knowledge regarding whether they had also manifested public support for the strike- the firm discriminated against them within the meaning of Section 8(a)(3) and interfered with restrained and co erced them regarding their exercise of rights statutorily guaranteed within the meaning of Section 8 (a)(1) of the Act 5 The above described unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act REMEDY Because I have found that Respondent Texaco Inc committed and has thus far failed to remedy certain spe cific unfair labor practices that affect commerce I shall recommend that it be ordered to cease and desist and to take certain affirmative action including the posting of appropriate notices necessary to effectuate the policies of the Act Specifically I have found that Section 8(a)(3) and (1) were violated when Respondent unlawfully withheld ac cident and sickness benefits that would under normal circumstances have been considered due and payable to certain employees designated previously within this de cision These employees though unable to work had been denied benefits due and payable pursuant to Re spondent s accident and sick benefit plan because their fellow workers had gone on strike and because Respond ent considered them currently disqualified to receive benefits while the strike lasted despite management s lack of knowledge concerning whether they had affirma tively ratified or actively supported their fellow workers strike This Board within its Emerson Electric decision has heretofore proclaimed its determination to hedge some what the rights of disabled employees regarding acci dent or sickness benefit claims under certain circum stances while strikes may be in progress The Board de Glared that while disabled employees [following a strike s com mencement] need not affirmatively disavow the strike action neither can they participate in the strike without running the risk of forfeiting benefits pro spectively For all practical purposes any em ployee disabled or sound who affirmatively demon strates his support of the strike by picketing or other wise showing public support for the strike has en meshed himself in the ongoing strike activity to TEXACO INC such an extent as to terminate his right to continued disability benefits [Emphasis added ] With matters in this posture then determinations seemingly must be made regarding whether any Complainants had-concurrently with or subse quent to the commencement of the strike with which this case has been concerned and before their recovery from illness or disability-enmeshed them selves in ongoing strike activity sufficiently to war rant Respondents termination of their right to con tinued disability benefits before their physical recov ery When this case was heard the General Counsels rep resentative suggested however that such determinations should properly be deferred to this case s possible com pliance stage In this connection he declared for the record that it will not be General Counsels position that all of the discriminatees were entitled to accident and sick benefits during the entire term of the strike And General Counsel will be adducing some evidence with respect to the period of time which would be involved However General Counsel will not expect to go into great specifics in this area because it will be General Counsels position that a determi nation as to the actual and specific period of time that these individuals are entitled to benefits should be left to the remedial portion of this proceeding should there be one The General Counsels procedural suggestion within my view possesses considerable ment It comports with this Board s longtime policy-maintained with judicial con currence-whereby questions concerning the precise amounts of remedial pay required to make discnmmatees whole have routinely been deferred for consideration during compliance negotiations or formal proceedings related thereto See NLRB v Deena Artware 361 US 398 411-412 (1960) (Frankfurter J concurring) Accord NLRB v Eagle Material Handling 558 F 2d 160 171 fn 16 (3d Cir 1977) in this connection Nevertheless within the Board s Emerson Electric deci sion some clear indications have been provided that- when the precise paramaters of specific unfair labor practices comparable with those found must be deter mined-findings will have to be made regarding whether particular conduct chargeable to a claimed discrimina tee constituted participation concerning some current strike cognizable affirmative demonstrations of sup port for the strike or some show of public support for it and what date or dates marked the claimed discn minatee s enmeshment with ongoing strike activity suffi ciently to justify the concerned employers termination of his disability benefit entitled In Emerson Electric the Board s decision noted specif ically that about seven presumably still disabled employ ees designated by name had been present on the picket line or among the strikers during the course of the strike and that one disabled worker had shown affix ma rive support for the Union s strike activities by working 623 in the Union s office during the period of his disability answering telephone calls I conclude from these sugges rive Board determinations that findings regarding both the questions above noted may be not only appropriate but procedurably necessary Those findings follow The record warrants determination that a single Com plainant disabled before the strike and still disabled fol lowing its termination never publicly demonstrated sup port for the work stoppage Sylvester Albert Cole works at Respondents sulfur re covery plant and is currently classified as a fireman oper ator His service record goes back 8 years with the 5 most recent years subsequent to Respondents takeover of the Carson California facility On October 22 1979 Cole sustained a neck injury while working Following his 1 day waiting period required under Respondent s accident and sick benefit plan Cole began receiving A&S benefits he continued to receive them through Jan uary 8 His benefit payments were then suspended Respondents January 8 policy statement regarding the discontinuance of benefit payments during the forth coming strike compassed a commitment that A&S bene fits would be continued for workers disabled due to in dustrial injury until they received a medical release or until their benefit entitlement under Respondents benefit plan schedule expired Cole presumably was not con sidered to have sustained an industrial injury when he filed a workmen s compensation claim shortly thereafter Respondent countered with a claim that his injury was related to a prior nonindustrial ailment Cole s claim for workmen s compensation had not yet been fully deter mined when this case was heard Respondents appeals had not yet run their course When the strike ended Respondent resumed A&S ben efit payments Cole was still drawing half pay sick leave benefits when this case was heard By the time this decision issues Cole s complaint re garding Respondents suspension of benefit payments during the strike may conceivably be mooted Should he still be disabled he may well have received his full A&S benefit entitlement under Respondents benefit schedule despite the 12 week hiatus dictated by Respondents strike related policy Cole the fireman operator denied that he had partici pated in the January 8 strike or that he had publicly demonstrated any strike support Respondent has pre sented no contrary evidence I find consistently with Cole s testimony that he should have been considered entitled to continued A&S benefits throughout Respond ent s 12 week strike shutdown Three concerned workers Complainants Geer Van Ausdoll and Casper Buol disabled before the strike suf fered continued disability until certain April 1980 dates subsequent to the strike s termination All three men however supported the strike despite their disabilities Steve Geer works at Respondents Los Angeles refin ery he is classified as a boilermaker with slightly less than a 10 year service record On Saturday December 1 1979 Geer fractured or cracked some ribs during a soft ball practice session He missed work on Monday De cember 3 his A&S benefit payments began with a De 624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cember 4 effective date The boilermaker s benefits were paid through January 8 they were then discontinued On January 8 during twilight hours Geer together with a fellow worker went to the main gate of Respondents Los Angeles refinery to see what was going on there He spoke to several people-presumably strikers though not necessarily-for about 20 to 30 minutes and then left During his visit Geer saw some of Respondent s people near the refinery gatehouse when queued-while a witness-concerning whether they had seen him the boilermaker testified that he wouldn t know whether he had been seen On January 26 or 27 while still disabled Geer sus tamed a second injury he cracked his wrist while roller skating He was finally notified on April 2 that he could resume work he did so the following day In the meantime however during the last week of January or the first week of February Geer had despite his disabil ity commenced picketing He had started picketing every third day this schedule he later reduced to 1 day per week for the duration of the strike In addition to picketing the boilermaker participated in two marches in support of the strike on February 7 and 13 respectively Throughout this period concurrently with his picket line service Geer visited the union hall to check in before picketing and to collect his strike benefit allowance On this record I find that Geer s strike participation dates from Monday January 28 the first day of the first week within which his picket line service may have been im tially rendered his January 8 visit to Respondents plant gate derived-so his testimony proffered without contra diction shows-from simple curiosity rather than a pur pose to demonstrate support for the strike Respondent proffers no contention that a management representative had acquired information that would warrant a con trary conclusion Daniel Van Ausdoll works as a machinist at Respond ent s refinery his service record goes back 10 1/2 years On November 29 1979 the machinist had sustained a knee injury During his consequent absence from work he received A&S benefits starting with November 30 1979 and continuing through January 8 1980 Though he received no such benefits during the strike he re ceived them during a continued period of disability which lasted from April 1-4 when he received a medi cal clearance to resume work on Monday April 7 Pre viously while the strike was in progress on February 6 1980 specifically Van Ausdoll had started working for the union finance committee which was responsible for the distribution of strike benefits This work was per formed at the union hall the machinist provided his committee services on just 1 day per week for 3 or 4 weeks He did no picketing and did not engage in any other activities in support of the strike With matters in this posture I conclude that Van Ausdoll s affirmative support for the Union s strike activities dates from Feb ruary 6 and that his right to continued disability benefits could have been terminated in any event on that date I have reached this conclusion despite Respondents failure to show that it had acquired information regarding Van Ausdoll s strike related activity directly following its commencement or at any time during the strike I find it difficult to comprehend how a concerned em ployer might acquire information concerning strike support activities conducted solely within a union hall and presumably well away from a picket line save through some form of questioning or surveillance which the statute would proscribe For present purposes how ever I have disregarded Respondents failure to muster the requisite showing Van Ausdoll had long been promi nent in union affairs a presumption that his participation in strike related activity would normally have come to Respondents notice might well be warranted In Emer son Electric the Board found affirmative support for a labor organization s strike activities shown by evidence which established only that the disabled worker con cerned performed services in the Union s office Casper Buol works as an instrument man at Respond ent s LAP his service record compasses 13 1/2 years He ceased work on August 13 1979 because of a nonoc cupational back injury On April 14 1980 having previ ously been medically released he resumed work his period of disability therefore had compassed both the commencement and conclusion of the 12 week stake period Effective August 14 1979 1 day subsequent to his injury Buol s regular A&S benefits had been paid He had continued to receive them through January 8 di rectly thereafter they had been discontinued When the strike ended Buol s benefit payments were resumed they continued until he resumed work Because I have previously found Buol s claims regard ing statutorily proscribed discrimination not cognizable my findings-with respect thereto-have been reported solely for the Board s convenience should it consider them properly subject to determination About 1 week after the strike began-presumably on Tuesday January 15 specifically-Buol began working at the union hall in support of the strike He provided miscellaneous services and likewise functioned as a strike major directly responsible for the maintenance of picket lines adequately staffed and provided with suste nance Buol the instrument man performed no picket duty himself his brief description of his functions how ever at or near union picket lines may frequently have been required And though a deduction that Respondent had somehow acquired information regarding Boul s union hall services could hardly be considered warrant ed I am satisfied that-when his services were required to staff picket lines and provide provisions for pickets- they would have become matters of public knowledge On this record therefore I would find should such a determination be required that Buol s strike participa tion dates from Tuesday January 15 specifically Three concerned workers Complainants Brockman Burks and Galeon though disabled before January 8 re covered from their disabilities before the strike s March 31 termination date The record within my view will support determinations that none of them took affirma tive action calculated to show public support for the strike before their respective recovery dates TEXACO INC Thomas J Brockman works as a tester at Respondent s LAP his service record compasses 11 1/2 years On Sat urday January 5 he irritated some bone growths on his toes while playing ice hockey He could not report for work on January 7 and had surgery on January 8 He was subsequently disabled On March 13 Brockman re ceived a medical clearance permitting him to resume work after March 24 he did not report however be cause of the strike which was still in progress The tester has not been granted A&S benefits for any portion of his disability period the record contains a stipulation however he had really been entitled to re ceive a benefit payment covering his January 8 failure to work Sometime during February 1980 s third or fourth week while still disabled Brockman had visited the union hall seeking information regarding what union representatives would be doing about Respondents Janu ary 8 discontinuance of A&S benefits following a brief conversation devoted solely to that subject he left the hall and returned home Brockman the tester while a witness denied that he had engaged in any activities in support of the strike Respondent has proffered no con trary testimony or documentation Within my view Brockman s February visit to the union hall cannot prop erly be considered a manifestation of strike support he had merely been seeking information On this record I find that Brockman had been mistakenly denied A&S benefits covering his January 8 absence and that his period of disability denied benefits thereafter I find fur ther that his period of disability terminated not on the day when he procured his doctor s release but on March 25 the date on which so he had been told he could have resumed work James M Burks works as a machinist within Respond ent s LAP he has been in Respondents employ for about 10 1/2 years On Sunday January 6 1980 Burks had injured his shoulder while installing a new home hot water heater He could not work because of his disabil ity on January 7 or for sometime thereafter On January 28 the machinists doctor cleared him to resume work the following day He did not report for work As with Brockman Burks had not been granted A&S benefits for any portion of his disability period the par ties have stipulated however that he should have been considered entitled to such benefits covering his Janu ary 8 absence On January 29 rather Burks reported to the union hall he received his picket duty assignments and corn menced picketing on February 1 With matters in this posture I find that Burks like Brockman had been mis takenly denied A&S benefits for his January 8 absence and that he had been unlawfully denied such benefits thereafter I find further that his period of disability ter minated on January 29 the date on which so he had been told he could have resumed work Consistently with his testimony which Respondent made no effort to contradict I find finally that Burks did not become a strike participant until January 29 the day on which he reported to the union hall for picket line assignments Adolfo 0 Galeon has worked for Respondent for 10 years he works in Respondents Los Angeles refinery 625 serving as a machinist Starting on Monday January 7 Galeon was absent from work because he had contracted influenza He received A&S benefits for January 8 but was notified on January 9 that no more benefit payments would be forthcoming while the strike was in progress On January 17 Galeon s doctor released him to resume work he did not return to work however because of the strike On January 20 presumably at the union hall Galeon received his picket line assignments he started picketing on January 22 and continued to do so until the strike s termination On this record I conclude and find that Galeon received A&S benefits covering his January 8 absence that he was unlawfully denied benefits be tween January 9 and 17 both dates inclusive and that he became a strike participant thereafter when he visited the union hall to receive his picket duty assignments Two concerned workers-Complainants Bowers and Crilley-though disabled before the strike began recov ered while the strike was in progress While disabled I find they supported the strike Gerald Steven Bowers has worked as Respondent s LAP for 6 years he works as an operator On January 2 1980 the operator had been sent home by his supervisor with a case of walking pneumonia In consequence he received A&S benefits starting with January 3 he did not however receive benefits after Sunday January 6 Bowers had not been scheduled to work on Monday January 7 or Tuesday January 8 his benefit payments did not cover those dates He did not receive benefits of course during the strike which then began On January 11 Bower s physi clan cleared him to resume work on January 14 As of January 11 however Bowers had made himself available for picket duty thereafter he picketed regularly and served as a picket captain until the strike ended Previ ously on Wednesday January 9 specifically Bowers together with a fellow worker had visited the picket line at Respondents Los Angeles refinery Concededly while there he had tried to find out what we were sup posed to be doing what kind of organization was going on whose picket list [he] was on With this record I conclude that Bowers had affirmatively acted to show public support for the strike particularly during his January 9 picket line visit and that Respondent s management had probably acquired information re garding his action I note in this connection the operators testimony that-when he visited the picket line during the lunch hour-there had been probably 5 or 10 foremen in Re spondent s LAP gatehouse Bowers opined that they had seen him Because Bowers had not been scheduled to work Janu ary 8 and because he had demonstrated his support for the strike on January 9 he cannot-within my view- claim now that he was denied benefits for which he might have been considered eligible following the strike s commencement Robert J Crilley works as an instrument man at Re spondent s refinery his service with the firm goes back 32 years On December 18 1979 Crilley entered the hos pital for an emergency appendectomy He began receiv 626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing A&S benefits effective December 19 and continued to receive them through January 8 Consistent with Re spondent s declared policy they were then discontinued At the time of his appendectomy Crilley had been serving as chairman of the Union s negotiating commit tee concerned with the contract modification discussions which had shortly before been commenced Following Crilley s surgery the committee had designated another chairman with the understanding that he would serve temporarily pending Crilley s return Additionally Cnl ley s position on the committee had been turned over to an alternate Crilley had been notified regarding these committee actions On February 11 Crilley received his doctor s clear ance to resume work the following day He promptly re sumed his position as negotiation committee chairman thereafter he participated in the negotiations until the consensual commitments previously noted within this de cision were memorialized On March 1 the instrument man participated in a harbor area march in support of the strike On this record I conclude that throughout the period with which we have been concerned Respond ent s management representatives had good reason to be lieve that Crilley who had been a longtime union leader and functionary would be a strike supporter The record shows that during his postsurgical period of disability he had nevertheless attended contract negotiating sessions though merely as a concerned visitor He had been invit ed to attend in that capacity by the Respondents princi pal negotiator Cnlley had been present during the January 8 session though purely in his visitor capacity when the Union s strike announcement was made With matters in this posture I am satisfied that regardless of whether Re spondent or the General Counsel produced the evidence this Respondents burden with respect to showing that it had acquired information sufficient to indicate that Cnlley had affirmatively manifested public support for the strike contemporaneously with his organizations strike call has been met Should the Board conclude different ly I would hold alternatively that Respondents burden of persuasion regarding Crilley s performance of affirma tive acts sufficient to satisfy this Board s standard was satisfied when he conceded that as of February 12 he had rejoined the negotiating committee and resumed his chairmanship Having found previously here that Respondent un lawfully withheld accident and sickness benefits from certain Complainants above designated I now find fur ther that Respondent should be required to make these Complainants whole by paying each of them with inter est whatever accident and sickness benefits they would have been considered entitled to receive between Jan uary 8 and the date of their recovery from disability or the date on which they actively participated in strike ac tivity or publicly supported the strike whichever came sooner Complainants several cut offdates pursuant to this recommendation are as follows Sylvester Cole March 31 1980 Gerald Bowers January 9 1980 Thomas Brockman March 25 1980 James Burks January 29 1980 Robert Crilley January 9 1980 Adolfo Galeon January 18 1980 Steve Geer January 28 1980 Daniel Van Ausdoll February 6 1980 Respondent contends finally that when the precise sums due and payable here have been computed various payments heretofore made to Complainant Cole five designated Complainants and Casper Buol should be de ducted from whatever A&S benefit payments the firm may be required to make These contentions however raise questions of possible setoffs regarding specifically determined make whole payments Such questions re quire no disposition within decisions such as this con cerned specifically with unfair labor practice determma tions they have not been considered [Recommended Order omitted from publication J