Southwestern Electric Power Co.

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