Youngstown Steel Door Co.

National Labor Relations Board - Board Decisions

May 12, 1988

288 N.L.R.B. 949 (N.L.R.B. 1988)

YOUNGSTOWN STEEL DOOR CO. 949
The Youngstown Steel Door Company and Louis
Adovasio. Case 8-CA-17451
May 12, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On June 6, 1986, Administrative Law Judge
Marion C. Ladwig issued the attached decision.
The Respondent filed exceptions and a supporting
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 the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, fmdings, and
conclusions and to adopt the recommended Order,
as modified, for the reasons explained below.1
Relying on Vesuvius Crucible Co., 252 NLRB
1279 (1980), enf. denied 668 F.2d 162 (3d Cir.
1981), the judge found that the Respondent violat-
ed Section 8(a)(3) and (1) of the Act by discontinu-
ing laid-off employee Louis Adovasio's accrued
hospitalization benefits in reprisal for active em-
ployees' lawful strike activity. We agree that the
Respondent violated the Act, but rely on Texaco,
Inc., 285 NLRB 241 (1987), rather than Vesuvius
Crucible Co., supra.
The Respondent and the Union were parties to a
collective-bargaining agreement effective from Oc-
tober 1, 1980, to October 1, 1983. Employee Louis
Adovasio had 20 years of service when he was laid
off in March 1983. According to paragraph 9.6 of
the "Program of Insurance Benefits" booklet (PIB),
Adovasio was entitled to continued health insur-
ance coverage during layoff for 12 months, i.e.,
until March 31, 1984. Under the contract's "Termi-
nation Provisions" in article XIX, the Respondent
was also required to continue "Supplemental Un-
employment Benefit" (SUB) payments to laid-off
employees for up to 120 days after expiration of
the contract. Paragraph 3(c) of the collectively bar-
gained "Insurance Agreement" states that the cost
We have clarified the make-whole provisions in the remedy and rec-
ommended Order to conform to the Board's policy set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd 661 F 2d 940 (9th
Cir 1981).
The judge's recommended Order includes a visitatorial clause authoriz-
ing the Board, for compliance purposes, to obtain discovery from the Re-
spondent under the Federal Rules of Civil Procedure under the supervi-
sion of the United States court of appeals enforcing this Order. Under the
circumstances of this case, we find it unnecessary to include such a
clause. See Cherokee Marine Terminal, 287 NLRB 1080 (1988)
Given our disposition of this case, we find it unnecessary to rule on the
Charging Party's motion for reconsideration of the Deputy Executive
Secretary's denial of the Charging Party's motion to supplement the
record.
of health benefits shall be paid by the Company,
except that:
(c) In the event of a strike. . . the Program,
with the exception of the sickness and accident
coverage, will be continued for 30 days. The
Company will advance the premiums for cov-
erage during such 30 days, which premiums
will be repaid by the Employees. During such
30 days, the parties will discuss procedures
and arrangements with respect to further con-
tinuation of insurance coverage and the repay-
ment of premiums advanced.
The PIB states that if there is any inconsistency be-
tween the PIB and the Insurance Agreement, the
Agreement governs.
On October 1, 1983, the contract expired, the
employees went on strike, and the Respondent ter-
minated SUB payments and health insurance cover-
age for laid-off employees. When Adovasio had
heart attacks in January and February 1984, the
Respondent refused to pay the hospitalization costs.
The Respondent did not advance the insurance
premiums for any employees for the first 30 days
of the strike. The insurance carrier sent notices to
employees on November 17, 1983, offering employ-
ees the option to convert to individual policies.
Any employee who paid the premium would be
covered retroactively from October 1. If the em-
ployee did not pay the premium, coverage ceased
as of October 1. Adovasio did not opt to convert
his coverage.
The Union filed a grievance about the laid-off
employees' SUB payments on October 11, and also
filed unfair labor charges over the termination of
laid-off employees' SUB payments and health in-
surance coverage. Union representatives prepared a
grievance form on the health insurance issue- and
discussed Adovasio's hospitalization costs with the
Respondent during the strike, but ultimately did
not file the grievance. On March 29, 1984, the day
before the strike ended, the Respondent settled the
SUB grievance by agreeing to make SUB payments
to laid-off employees for the period from October
1, to December 31. The Union thereafter ceased
pursuing its unfair labor practice charge.
In Texaco, supra, we held that the lawfulness of
the termination of benefit payments to disabled em-
ployees on commencement of a strike will be re-
solved by application of the test set forth in NLRB
v. Great Dane Trailers, 388 U.S. 26 (1967). Under
this test, the General Counsel bears the prima facie
burden of proving at least some adverse effect of
the benefit denial on employee rights. The General
Counsel can meet this burden by showing that (1)
the benefit was accrued and (2) the benefit was
288 NLRB No. 100
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
withheld on the apparent basis of a strike. Once the
General Counsel makes a prima facie case of at
least some adverse effect on employee rights, the
burden under Great Dane shifts to the employer to
come forward with proof of legitimate and substan-
tial business justification for its Cessation of bene-
fits. The employer may meet this burden by prov-
ing that a collective-bargaining representative has
clearly and unmistakably waived its employees'
statutory right to be free of such discrimination or
coercion, or that the employer relied on a nondis-
criminatory contract interpretation that is reasona-
ble and arguably correct and thus sufficient to con-
stitute a legitimate and substantial business justifica-
tion for its conduct. If the employer proves busi-
ness justification, the Board may nevertheless find
the employer committed an unfair labor practice if
the conduct is demonstrated to be "inherently de-
structive" of employee rights or motivated by an-
tiunion intent.2
Applying the principles articulated in Texaco to
the facts here, we find that the General Counsel es-
tablished a prima facie case. As found by the judge,
the withheld hospitalization benefits were accrued.
Paragraph 9.6 of the contract's Program of Insur-
ance Benefits entitled laid-off employee Adovasio
to hospitalization coverage for 12 months after his
layoff based on his past service of 20 years. Adova-
sio was entitled to receive hospitalization benefits
until March 31, 1984, and the Respondent undispu-
tedly suspended benefits on commencement of the
strike. Suspension of these hospitalization benefits
on the basis of the strike warrants the inference of
discriminatory intent and 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.
The Respondent argues that paragraph 3(c) in
the Insurance Agreement waives Adovasio's right
to continued hospitalization coverage during the
strike because paragraph 3(c) specifically overrides
any right to continued hospitalization coverage
Adovasio had under paragraph 9.6 of the PIB.
While a union may bargain away employees' statu-
torily protected rights, waiver of a right must be
expressed clearly and unmistakably. Waiver will
not be inferred, but must be explicit.3
We find that the Union did not clearly and un-
mistakably waive Adovasio's right to continued
hospitalization coverage in the event of a strike.
The language of paragraph 3(c) does not purport
to require withdrawal of otherwise accrued bene-
2 Texaco, Inc., supra.
3 Metropolitan Edison Co. v. NLRB, 460 U S 693 (1983).
fits,4 but rather seems to expand the rights of strik-
ers, not limit the rights of nonstrikers. The lan-
guage does not clearly apply to the accrued hospi-
talization benefits to which Adovasio was entitled
prior to the strike.
Even though the Respondent has not proven
waiver, it may still present evidence of a substantial
business justification for withholding accrued bene-
fits, such as good-faith reliance on a nondiscrimina-
tory contract interpretation.6
We are unpersuaded that the Respondent's con-
tractual interpretation of the interaction between
paragraph 3(c) of the Insurance Agreement and
paragraph 9.6 of the PIB is anything more than a
post hoc rationalization. The Respondent made no
contemporaneous reference to a contract interpre-
tation when it suspended Adovasio's accrued hospi-
talization benefits. In fact, in testimony Industrial
Relations Director Jones explained that Adovasio's
hospitalization benefits were terminated because,
"We didn't have a contract with the Union." This
admission completely undercuts the claim that the
Respondent was relying on the asserted contract
interpretation at the time it suspended benefits.,
Clearly, the mere expiration of a collective-bar-
gaining agreement does not permit the Respondent
to withhold an accrued benefit from its employees,
nor to change unilaterally their terms and condi-
tions of employment.6
Further, we find that the suggested interpreta-
tion of the interaction of paragraphs 3(c) and 9.6 is
both unreasonable and not arguably correct given
the Respondent's treatment of other benefits at the
commencement of the strike. Under paragraph 3(c)
the Respondent was obligated to advance premi-
ums for striking employees' health insurance bene-
fits for 30 days, but it did not. Neither did the Re-
spondent continue laid-off employees' SUB benefits
for 120 days after the contract expired, as was re-
quired under article XIX of the contract. Finally,
the Respondent failed to explain how continuing
sickness and accident benefits to employees who
were receiving benefits before the strike began
while discontinuing hospitalization benefits to
4 The Respondent admitted that its practice is to continue providing
accrued contractual sickness and accident benefits to sick or injured em-
ployees receiving them at the time a strike begins.
5 Amoco Oil Co., 285 NLRB 918 (1987), is illustrative of an employer's
bona fide reliance on its benefit plan justifying suspension of benefits In
that case, we found that Amoco's interpretation—to the effect that an
employee must meet dual eligibility requirements of being disabled and
normally scheduled to work—was reasonable based both on the language
of the plan and past practice The record in Amoco supported our finding
that Amoco consistently applied its dual eligibility requirements nonchs-
criminatorily with respect to disabled employees for whom no work was
available during lockouts and other situations not related to employees
engaging in union or other protected activities.
6 See NLRB v. Katz, 369 U.S 736 (1962)
YOUNGSTOWN STEEL DOOR CO. 951
.` ,
which Adovasio became entitled before the strike
began is consistent with the proposed interpreta-
tion. We conclude, therefore, that the Respondent
has failed to prove a legitimate and substantial busi-
ness justification for its suspension of Adovasio's
hospitalization benefits and therefore violated Sec-
tion 8(a)(3) and (1) of the Act.'
REMEDY
Having found that the Respondent has engaged
in unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that the Respondent unlawfully
terminated employee Louis Adovasio's health in-
surance coverage to which he was contractually
entitled through March 31, 1984, we shall order
the Respondent to make Adovasio whole for any
losses attributable to its failure to make the con-
tractually required health insurance premium pay-
ments, including reimbursement for any medical or
dental bills Adovasio may have paid directly to
health care providers that the contractual policies
would have covered, see Kraft Plumbing & Heat-
ing, supra, plus interest.8
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, The Youngstown Steel Door Company,
Youngstown, Ohio, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 2(a).
"(a) Make Louis Adovasio whole by reimbursing
him for any losses attributable to the termination of
his health insurance coverage, in the manner set
forth in the remedy section of the Board's Decision
and Order."
2. Substitute the following for paragraph 2(c).
"(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
3. Substitute the attached notice for that of the
administrative law judge.
7 Given our disposition of the case, we find it unnecessary to decide
whether the Respondent's conduct was inherently destructive of employ-
ee rights.
8 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U S.C. § 6621. Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U.S.0 § 6621), shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
CHAIRMAN STEPHENS, concurring.
I agree with my colleagues that the Respondent
violated Section 8(a)(3) and (1) of the Act by deny-
ing continued hospitalization insurance coverage to
employee Adovasio because of the strike which
began on October 1, 1983, and ended on March 30,
1984. However, in applying Texaco, Inc., 285
NLRB 241 (1987), I reach this conclusion by a dif-
ferent route.
With respect to the threshold question of accru-
al, I agree that paragraph 9.6 of the Program of In-
surance Benefits, -read in isolation from other provi-
sions of the parties' collective-bargaining agree-
ment, provides for accrual of insurance benefits for
laid-off employees based on length of service and
that Adovasio would thus have been entitled to
coverage through March 1984, The Program of In-
surance Benefits must, as the parties clearly intend-
ed, however, be read in conjunction with the In-
surance Agreement. As the majority finds, the col-
lective-bargaining agreement provides that the In-
surance Agreement governs in the event of an in-
consistency between it and the Program of Insur-
ance Benefits. Paragraph 3(c) of the Agreement
states that, in the event of a strike, insurance bene-
fits will be continued for 30 days with the Re-
spondent advancing the premium for that period
and the employees repaying it. Further, paragraph
3(c) provides that once the Respondent meets its
initial obligation, the parties will discuss the possi-
bility of further extensions of coverage during the
strike, including the issue of arrangements for re-
paying the first month's premium and any addition-
al premiums which might be advanced beyond the
first month of the strike.
I understand paragraph 3(c), on its face, to cut
off Adovasio's accrued entitlement to paid cover-
age from the beginning of the strike through the
following March. As explained by my colleagues,
however, the Respondent did not meet its para-
graph 3(c) initial obligation, and thus I would find
that Adovasio's accrued right continued for the
period in question—the October 1983—March 1984
strike. The evidence on which my colleagues rely
for proof of the Respondent's failure to rebut the
General Counsel's prima facie case by showing
waiver or business justification I would construe as
showing that the Respondent's own behavior de-
feated its right to insist that Adovasio's benefits did
not accrue for the strike period. I agree with the
majority that the Respondent's actions also pre-
clude its reliance on the contract to show either
waiver or business justification.
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT terminate health insurance cover-
age or otherwise discriminate against any laid-off
employee because other employees go on strike.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make Louis Adovasio whole by reim-
bursing him for any losses attributable to our termi-
nation of his health insurance coverage, plus inter-
est.
THE YOTJNOSTOWN STEEL DOOR
COMPANY
Rufus L. Warr, Esq., for the General Counsel.
James L. Messenger, Esq., of Youngstown, Ohio, for the
Respondent.
Ira J. Mirkin, Esq., of Youngstown, Ohio, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. This
case was tried at Youngstown, Ohio, on 14 April 1986.
The charge was filed by Louis Adovacio 28 March
1984 i (amended 26 April) and the complaint was issued
24 December 1985.
When Adovasio (with 20 years of service) was laid off
in March 1983 he was entitled to 12 months of accrued
hospitalization insurance and other benefits. The Compa-
ny terminated these vested benefits on the first day of
the 1 October strike and refused to pay his hospitaliza-
tion when he had recurring heart attacks in January and
February. The primary issue is whether the Company,
the Respondent, unlawfully terminated Adovasio's hospi-
talization because other employees actively employed at
the facility went on strike, violating Section 8(a)(1) and
(3) of the National Labor Relations Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after considering the
briefs filed by the General Counsel and the Company, I
make the following
1 All dates are from October 1983 until April 1984 unless otherwise
Indicated.
FINDINGS OF FACT
I. JURISDICTION
The Company, an Ohio corporation and a wholly
owned subsidiary of Lamson and Sessions Co., manufac-
tures railroad car sides and doors at its facility in
Youngstown, Ohio, where it annually ships goods valued
over $50,000 directly outside the State. The Company
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act and that the Unions, United Steelworkers of Amer-
ica, AFL-CIO and its Local Union 2310, are labor orga-
nizations within the meaning of Section 2(5) of the Act.
II ALLEGED UNFAIR LABOR PRACTICES
A. Accrued Benefits
Three of the benefits that may accrue under the col-
lective-bargaining and insurance agreements are SUB
benefits (supplemental unemployment benefits), hospitali-
zation benefits (including physicians' services), and S&A
benefits (sickness and accident benefits).
The collective-bargaining agreement (the Agreement),
signed by the Company and representatives of the
Unions, was effective from 1 October 1980 until mid-
night before 1 October 1983 (G.C. Exh 3). As admitted
by Industrial Relations Director Jack Jones at the trial
(Tr. 138), article XIX of the Agreement, under "Termi-
nation Provisions," requires that SUB payments be made
120 days beyond its expiration. Adovasio had 17 earned
SUB credits (G.c. Exh. 5) remaining at the time of the 1
October strike, entitling him to 17 weeks of vested SUB
benefits. Jones admitted (Tr. 139) that the Agreement re-
quired continued payment of these SUB benefits.
The last signed Insurance Agreement (G.C. Exh. 6)
became effective 31 July 1967. It provides, under "Defi-
nitions," that the insurance "Program" for hourly paid
employees means the program of insurance benefits de-
scribed in the attached booklets that "constitute a part of
this Insurance Agreement as though incorporated" in it.
As Director Jones credibly testified (Tr. 135), the 1981
edition of the booklet (G.C. Exh 2), entitled "Program
of Insurance Benefits Hourly Paid Employees" and ef-
fective 1 October 1980, contains the terms of the "insur-
ance package" negotiated by the Company and the
Unions and "included in the memorandum of under-
standing, signed by both the union and the company."
Paragraph 9.3 of this Program of Insurance Benefits
(program) provides that "All hourly employees shall par-
ticipate in this insurance plan." Paragraph 9.6, concern-
ing laid-off employees, provides that
If you cease work because of layoff, the following
provisions will be applicable to your coverage
under the Program:
(a) Your sickness and accident coverage will ter-
minate on the date you cease work.
(b) If you have twenty or more years of continu-
ous service on the date you cease work, your re-
maining coverage will be continued during such
YOUNGSTOWN STEEL DOOR CO. 953
layoff up to the later of (i) 12 months from the end
of the month in such you last worked . . .
The evidence is undisputed that under this paragraph 9.6
(G.C. Exh. 2 at 52), Adovasio was entitled to health in-
surance benefits (including hospitalization and physicians
services) through 31 March.
Thus, under article XIX of the Agreement and para-
graph 9.6 of the Program of Insurance Benefits, Adova-
sio was entitled to accrued SUB benefits for 17 weeks
after termination of the Agreement and to continued hos-
pitalization benefits until 31 March of the next year.
A third benefit that would accrue was sickness and ac-
cident coverage for employees receiving these S&A ben-
efits when the Agreement terminates. Director Jones ad-
mitted (Tr. 132-133) that the ;S&A benefits provided in
section 2, "Sickness and Accident Insurance," of the
Program of Insurance Benefits (G.C. Exh. 2 at 4-9)
would continue "even after the strike" for employees
who "were already on sick leave, or disabled at the time
the strike started." Jones testified that although there is
no written provision in the Program of Insurance Bene-
fits requiring continued S&A coverage of employees
who are sick or injured at the time of the strike, "It's just
general knowledge that once you're on it, you continue
on it." (As a laid-off employee, Adovasio was not enti-
tled to S&A benefits.)
B. Termination of Accrued SUB and Hospitalization
Benefits
Industrial Relations Director Jones admitted that on 1
October, the first day of the strike, the Company termi-
nated payment of the SUB benefits even though "We
had language in the Agreement that the SUB would go
on for 120 days." His only explanation was, "We didn't
have a contract with the union. (Tr. 137-138.) (Adovasio
and other eligible laid-off employees crossed the picket
line weekly to sign up for the SUB benefits. Finally on
29 March, the day before the strike ended (Tr. 137), the
Company agreed (R. Exh. 3) to pay the SUB benefits
through December 1983 to laid-off employees (like Ado-
vasio) who had 20 or more years of service—settling a
grievance (R. Exh. 2) and causing Local 2310 not to
pursue its charge in Case 8-CA-17264-1 (R.. Exh. 6, Tr.
90)-)
Director Jones gave the same explanation, "We didn't
have a contract with the union," for cutting off Adova-
sio's hospitalization coverage also on 1 October and not
paying his hospital expenses in January and February
after his heart attacks (Tr. 137). I note that Local 2310
prepared a grievance (G.C. Exh. 8), but it never filed the
grievance with the Company. Although Staff Represent-
ative Arthur Davis testified that he would not call it a
trade (oft) when the Local settled the SUB grievance
and failed to file the hospitalization grievance, he testi-
fied that "we were going to make a sincere effort to see
if we could do something on behalf of Mr. Adovasio and
any of those who might have been affected similar to
him, but our primary concern was with the SUB dis-
pute" (Tr. 78). Davis later added that the 20-year (laid-
off) employees were "very vocal about that SUB. So, we
considered that something very paramount to a settle-
ment with this company" (Tr. 97). (None of the parties
seeks to defer this proceeding to the grievance-arbitra-
tion procedure.)
C. The Company's Defense
The Company's sole defense in its brief is that para-
graph 9.6 of the Program of Insurance Benefits (entitling
laid-off employees with 20 years of service to 12 months
of accrued insurance program coverage, except S&A
benefits) "is patently inconsistent with paragraph 3(c) of
the Insurance Agreement," which the Company con-
tends is controlling.
But paragraph 3(c), under the heading "Cost of Bene-
fits," says nothing about terminating vested or accrued
Program benefits. It instead concerns the continuation
and financing, during a strike, of certain insurance Pro-
gram benefits that the Company could otherwise termi-
nate. Paragraph 3 requires that the cost of the Program
benefits be paid by the Company, except that
(c) In the event of a strike . . . the Program,
with the exception of sickness and accident cover-
age which is canceled during a strike, will be con-
tinued for 30 days. The Company will advance the
premiums for coverage during such 30 days, which
premiums will be repaid by the Employees. During
such 30 days, the parties will discuss procedures
and arrangements with respect to further continu-
ation of insurance coverage and the repayment of
premiums advanced. Emphasis added.
Such a provision first appeared in the 1960 Insurance
Agreement (R. Exh 4) The Company cites no precedent
or past practice since then of construing the provision to
authorize or require the Company to terminate any
vested or accrued Program benefits. Even though para-
graph 3(c) expressly excludes S&A benefits from the
Program benefits that must be continued 30 days (recog-
nizing the Company's right to cancel them for the dura-
tion of the strike), the Company does not construe the
provision to authorize or require it to terminate accrued
S&A benefits. Industrial Relations Director Jones admit-
ted at the trial that the practice of continuing S&A bene-
fits for sick or injured employees receiving them at the
time of the strike is "consistent with the language" in
paragraph 3(c) of the Insurance Agreement (Tr. 133).
These S&A benefits for sick or injured employees—like
the hospitalization benefits for Adovasio (as well as for
laid-off employee Richard Pesce, whose hospitalization
the Company admittedly (Tr. 127) refused to pay under
similar circumstances)—had already accrued by the time
the strike began.
I agree with the General Counsel that paragraph 9.6 of
the Program of Insurance Benefits (1) is not inconsistent
with paragraph 3(c) of the Insurance Agreement, (2) the
language of paragraph 3(c) does not require withdrawal
of otherwise accrued benefits, (3) paragraph 3(c) expands
the rights of strikers rather than limits the right of non-
strikers, and (4) accordingly it is incongruous to assert
that paragraph 3(c) extinguishes vested rights of employ-
ees who did not participate in the strike.
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I therefore find it unnecessary to rule on the Compa-
ny's contention that the negotiated substantive provisions
in the Program of Insurance Benefits (which constitute a
part of the Insurance Agreement "as though incorporat-
ed" in it) are subordinate to the general administrative
language in the 1967 Insurance Agreement. (The Pro-
gram of Insurance Benefits provides (at 1), under "Who
is Eligible to Participate in This Program," that "Details
relating to the operation of the program will be included
in reasonable rules, regulations and arrangements with in-
surance carriers." The Insurance Agreement and the
rules, regulations, and arrangements referred to above
form the basis on which the Program is administered, but
if there is any inconsistency, the Insurance Agreement
governs.)
D. Motivation and Concluding Findings
During the contract negotiations, in which the Compa-
ny was attempting to reduce the benefit programs (Tr.
63), the Company threatened to terminate the insurance
benefits if there was a strike (Tr. 85, 122). This it did on
1 October, the first day of the strike (except the S&A
benefits to employees already receiving them). It termi-
nated laid-off employee Adovasio's (and Pesce's) accrued
hospitalization benefits in violation of paragraph 9.6 of
the Program of Insurance Benefits. (Pesce did not file a
grievance or charge.) It violated its commitment under
paragraph 3(c) of the Agreement to "advance the premi-
ums for coverage" of the striking employees' Program
benefits for 30 days. (Company witness Barbara Pease,
the claims manager for the insurance company, admitted
(Tr. 107) that the Company never paid the October pre-
mium.) Furthermore the Company unilaterally terminat-
ed the SUB benefits (to Adovasio and other eligible laid-
off employees), violating its admitted obligation under
article XIX of the Agreement to continue paying the
SUB benefits 120 days after the strike began. Then, de-
spite the grievance and charge that Local 2310 filed
against it (R. Exhs. 2 and 6), the Company withheld the
SUB payments over 6 months, until after the strike
ended.
I find that this conduct demonstrates that the Compa-
ny's termination of Adovasio's accrued hospitalization
benefits was in reprisal for the active employees' lawful
strike.
I agree with the General Counsel that Adovasio's ac-
crued hospitalization benefits are analogous to accrued
vacation benefits. As held in Vesuvius Crucible Co., 252
NLRB 1279, 1282 (1980): These "accrued vacation bene-
fits under the contract . . . remained vested even after
the contract terminated. To find otherwise would ignore
the salient fact that even after a contract expires, provi-
sions providing for accrued benefits and the manner in
which they are computed, continue to live on' and
govern by operation of law."
I therefore find that the Company violated Section
8(a)(1) and (3) of the Act by terminating Louis Adova-
sio's accrued hospitalization benefits (including physi-
cians services) because other employees actively em-
ployed at the facility went on strike.
CONCLUSIONS OF LAW
By terminating laid-off employee Louis Adovasio's ac-
crued hospitalization benefits (including physicians serv-
ices) because other employees actively employed at the
facility went on strike, the Company engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(1) and (3) and Section 2(6) and (7) of the
Act.
- REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent having unlawfully terminated an em-
ployee's accrued hospitalization benefits (including physi-
cians services) to which he was entitled through 31
March 1984, it must make him whole for the benefits due
him for his hospital expenses through that date, plus in-
terest as computed in Florida Steel Corp., 231 NLRB 651
(1977).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 2
ORDER
The Respondent, The Youngstown Steel Door Com-
pany, Youngstown, Ohio, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Withholding accrued hospitalization benefits from
or otherwise discriminating against Louis Adovasio or
any other laid-off employee because other employees ac-
tively employed at the facility go on strike.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Louis Adovasio whole for the hospitalization
benefits (including physicians services) to which he was
entitled through 31 March 1984, in the manner set forth
in the remedy section of the decision.
(b) Post at its facility in Youngstown, Ohio, copies of
the attached notice marked "Appendix." 3 Copies of the
notice, on forms provided by the Regional Director for
Region 8, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
2 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules," be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
YOUNGSTOWN STEEL DOOR CO. 955
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. To determine or secure
compliance with the Order, the Eoard or any authorized
representatives may obtain discovery from the Respond-
ent, its officers, agents, successors, or assigns or from any
person having knowledge of any compliance matter, as
provided in the Federal Rules of Civil Procedure. The
discovery shall be conducted under the supervision of
the United States court of appeals enforcing the Order
and may be on any matter reasonably related to the com-
pliance.