Texaco Oil Company

408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Texaco Oil Company and Robert G. Ravert and Mi- Peter J. Gottfried chael L. Wergin. Cases 27-CA-6776 and 27- CA-6 L. Wen. C s 26 and 2- Employee Gottfried suffered from chronic rheu- matoid arthritis. In December 1979, Gottfried re- November 30, 1981 ceived treatment from a rheumatologist in Califor- nia while on vacation. Gottfried received permis- DECISION AND ORDER sion from Respondent's personnel director by tele- BY MEMBERS FANNING, JENKINS, AND phone to remain in California on sick leave in ZIMMERMAN order to finish these treatments. Upon his return to Wyoming on January 6 or 7, Gottfried informed On April 20, 1981, Administrative Law Judge Respondent that he was going to consult his local Joan Wieder issued the attached Decision in this physician before returning to work. However, proceeding. Thereafter, Respondent filed excep- Gottfried did not see his physician until January tions and a supporting brief. 30, approximately 3 weeks later. At that time, Pursuant to the provisions of Section 3(b) of the Gottfried received an injection (gold salts therapy) National Labor Relations Act, as amended, the Na- and was told by his physician that he could return tional Labor Relations Board has delegated its au- to work when he "felt like it." Gottfried testified thority in this proceeding to a three-member panel. that he felt well enough to work on February 11, The Board has considered the record and the at- and that he began to picket at that time. tached Decision in light of the exceptions and brief The Administrative Law Judge found Gottfried's and has decided to affirm the rulings, findings, and testimony that he was available for work on Febru- conclusions2 of the Administrative Law Judge, as ary 11 to be dispositive of the issue of what date modified herein, and to adopt her recommended Gottfried's eligibility for A and S benefits ended. Order, as modified. However, it appears that Gottfried may have been We agree with the Administrative Law Judge medically able to work before that time, possibly that Respondent violated Section 8(a)(3) of the Act following his January 30 doctor's appointment. when it terminated the accident and sickness (A Furthermore, Respondent may be correct that and S) benefits of the six discriminatees on January Gottfried unnecessarily waited 3 weeks to see his 8, 1980, 3 the first day of the strike. However, for doctor, and that his chronic condition would not the reasons stated herein, we disagree with the Ad- have prevented him from working shortly after his ministrative Law Judge's recommended remedy as return to Wyoming in early January. We therefore to four of the six individuals. 4 While the Adminis- leave to the compliance stage the question of trative Law Judge correctly determined that these which date Gottfried was medically able to return four discriminatees should be reimbursed for bene- to work. fits lost under Respondent's A and S plan begin- ning on January 8, 1980, we hereby modify her Michael L. Wergin findings as to which date their respective entitle- At the beginning of the strike, Wergin was on ments ended. sick leave because of a knee injury. He was subse- quently released by his doctor on February 7, and began picketing on February 21. Respondent has excepted to certain credibility findings made by the The Administrative Law Judge found that there Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- was no indication that Wergin was ready to work bility unless the clear preponderance of all of the relevant evidence con- immediately after his release or prior to his com- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have mencement of picketing. She therefore concluded carefully examined the record and find no basis for reversing her find- that Wergin's entitlement to A and S benefits ings. I We note that, while Respondent has excepted to the Administrative ended on February 21, the first day that he picket- Law Judge's finding that it is an Illinois corporation, Respondent has not ed. However, under E. L. Wiegand Division, Emer- indicated in which State it is actually incorporated. son Electric Co supra a discriminatee is not enti- 3C a~ret^ ' ^SOn Electric Co., supra, a discriminatee is not enti- All dates are in 1980, unless otherwise noted. 'We adopt the Administrative Law Judge's recommended remedy as tied to recover A and S benefits for longer than to William B. Noell and John Vin. the period of his disability. Wergin's doctor re- Member Jenkins agrees with the findings herein as to the remedy for the reasons set forth in his dissent in E. L. Wiegand Division, Emerson leased Wergin to return to work on February 7. Electric Co., 246 NLRB 1143 (1979), enfd. as modified 650 F.2d 463 (3d We therefore find that Wergin's entitlement to Cir. 1981). Member Zimmerman finds it unnecessary to reach the remedial issue benefits ended on February 7, the date of his medi- set forth in Emerson Electric Co., supra, since the result in this case is the cal release. same under either the majority or dissenting approach. 259 NLRB No. 62 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Texaco Oil Company and Robert G. Ravert and Mi- Peter J. Gottfried chadl L. Wergin. Cases 27-CA-6776 and 27- _ ., „ ,, . CA-6776-2eEmployee Gottfried suffered from chronic rheu- matoid arthritis. In December 1979, Gottfried re- November 30, 1981 ceived treatment from a rheumatologist in Califor- nia while on vacation. Gottfried received permis- DECISION AND ORDER sion from Respondent's personnel director by tele- BY MEMBERS FANNING, JENKINS, AND phone t o r e m a in i n California on sick leave in ZIMMERMAN order to finish these treatments. Upon his return to Wyoming on January 6 or 7, Gottfried informed On April 20, 1981, Administrative Law Judge Respondent that he was going to consult his local Joan Wieder issued the attached Decision in this physician before returning to work. However, proceeding. Thereafter, Respondent filed excep- Gottfried did not see his physician until January tions and a supporting brief. 30, approximately 3 weeks later. At that time, Pursuant to the provisions of Section 3(b) of the Gottfried received an injection (gold salts therapy) National Labor Relations Act, as amended, the Na- and was told by his physician that he could return tional Labor Relations Board has delegated its au- to work when he "felt like it." Gottfried testified thority in this proceeding to a three-member panel. that he felt well enough to work on February 11, The Board has considered the record and the at- and that he began to picket at that time. tached Decision in light of the exceptions and brief The Administrative Law Judge found Gottfried's and has decided to affirm the rulings, findings,I and testimony that he was available for work on Febru- conclusions 2 of the Administrative Law Judge, as ary 11 to be dispositive of the issue of what date modified herein, and to adopt her recommended Gottfried's eligibility for A and S benefits ended. Order, as modified. However, it appears that Gottfried may have been We agree with the Administrative Law Judge medically able to work before that time, possibly that Respondent violated Section 8(a)(3) of the Act following his January 30 doctor's appointment. when it terminated the accident and sickness (A Furthermore, Respondent may be correct that and S) benefits of the six discriminatees on January Gottfried unnecessarily waited 3 weeks to see his 8, 1980, 3 the first day of the strike. However, for doctor, and that his chronic condition would not the reasons stated herein, we disagree with the Ad- have prevented him from working shortly after his ministrative Law Judge's recommended remedy as return to Wyoming in early January. We therefore to four of the six individuals. 4 While the Adminis- leave to the compliance stage the question of trative Law Judge correctly determined that these which date Gottfried was medically able to return four discriminatees should be reimbursed for bene- to work. fits lost under Respondent's A and S plan begin- ning on January 8, 1980, we hereby modify her Michael L. Wergin findings as to which date their respective entitle- At the beginning of the strike, Wergin was on ments ended. sick leave because of a knee injury. He was subse- quently released by his doctor on February 7, and began picketing on February 21. *Respondent has excepted to certain credibility findings made by the TI, Administrative Taw Tudcp found that there Administrative Law Judge. It is the Board's established policy not to T e Administrative Law Judge found that there overrule an administrative law judge's resolutions with respect to credi- was no indication that Wergin was ready to work bility unless the clear preponderance of all of the relevant evidence con- immediately after his release Or prior tO his com- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have mencement of picketing. She therefore concluded carefully examined the record and find no basis for reversing her find- that Wergin's entitlement tO A and S benefits ings. ne Fbur 1 h is a h h ikt I We note that, while Respondent has excepted to the Administrative e n d e d on February 21, the first day that he picket- Law Judge's finding that it is an Illinois corporation. Respondent has not ed. However, Under E. L. Wiegand Division, Emer- indi ated in which State it is actually incorporated. o lcr C. ua dsimnt s t t- 3C set '^ ^ o n E lecri Co., supra, a discriminatee is not enti- 'All dates are in 1990, unless otherwise noted. We adopt the Administrative Law Judge's recommended remedy as tied tO recover A and S benefits for longer than to William B. Noell and John yin. the period of his disability. Wergin's doctor re- Member Jenkins agrees with the findings herein as to the remedy for the reasons set forth in his dissent in E. L. Wiegand Division, Emerson leased Wergin tO return to work On February 7. Electric Co., 246 NLRB 1143 (1979), enfd. as modified 650 F.2d 463 (3d We therefore find that Wergin's entitlement to Cir. 1981). eei ed o era 7 h a o s d- Member Zimmerman finds it unnecessary to reach the remedial issue benefits ended On February 7, the date of his medi- set forth in Emerson Electric Co., supra, since the result in this case is the cal release. same under either the majority or dissenting approach. 259 NLRB No. 62 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Texaco Oil Company and Robert G. Ravert and Mi- Peter J. Gottfried chadl L. Wergin. Cases 27-CA-6776 and 27- _ ., „ ,, . CA-6776-2eEmployee Gottfried suffered from chronic rheu- matoid arthritis. In December 1979, Gottfried re- November 30, 1981 ceived treatment from a rheumatologist in Califor- nia while on vacation. Gottfried received permis- DECISION AND ORDER sion from Respondent's personnel director by tele- BY MEMBERS FANNING, JENKINS, AND phone t o r e m a in i n California on sick leave in ZIMMERMAN order to finish these treatments. Upon his return to Wyoming on January 6 or 7, Gottfried informed On April 20, 1981, Administrative Law Judge Respondent that he was going to consult his local Joan Wieder issued the attached Decision in this physician before returning to work. However, proceeding. Thereafter, Respondent filed excep- Gottfried did not see his physician until January tions and a supporting brief. 30, approximately 3 weeks later. At that time, Pursuant to the provisions of Section 3(b) of the Gottfried received an injection (gold salts therapy) National Labor Relations Act, as amended, the Na- and was told by his physician that he could return tional Labor Relations Board has delegated its au- to work when he "felt like it." Gottfried testified thority in this proceeding to a three-member panel. that he felt well enough to work on February 11, The Board has considered the record and the at- and that he began to picket at that time. tached Decision in light of the exceptions and brief The Administrative Law Judge found Gottfried's and has decided to affirm the rulings, findings,I and testimony that he was available for work on Febru- conclusions 2 of the Administrative Law Judge, as ary 11 to be dispositive of the issue of what date modified herein, and to adopt her recommended Gottfried's eligibility for A and S benefits ended. Order, as modified. However, it appears that Gottfried may have been We agree with the Administrative Law Judge medically able to work before that time, possibly that Respondent violated Section 8(a)(3) of the Act following his January 30 doctor's appointment. when it terminated the accident and sickness (A Furthermore, Respondent may be correct that and S) benefits of the six discriminatees on January Gottfried unnecessarily waited 3 weeks to see his 8, 1980, 3 the first day of the strike. However, for doctor, and that his chronic condition would not the reasons stated herein, we disagree with the Ad- have prevented him from working shortly after his ministrative Law Judge's recommended remedy as return to Wyoming in early January. We therefore to four of the six individuals. 4 While the Adminis- leave to the compliance stage the question of trative Law Judge correctly determined that these which date Gottfried was medically able to return four discriminatees should be reimbursed for bene- to work. fits lost under Respondent's A and S plan begin- ning on January 8, 1980, we hereby modify her Michael L. Wergin findings as to which date their respective entitle- At the beginning of the strike, Wergin was on ments ended. sick leave because of a knee injury. He was subse- quently released by his doctor on February 7, and began picketing on February 21. *Respondent has excepted to certain credibility findings made by the TI, Administrative Taw Tndce found that there Administrative Law Judge. It is the Board's established policy not to T e Administrative Law Judge found that there overrule an administrative law judge's resolutions with respect to credi- was no indication that Wergin was ready to work bility unless the clear preponderance of all of the relevant evidence con- immediately after his release Or prior tO his com- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have mencement of picketing. She therefore concluded carefully examined the record and find no basis for reversing her find- that Wergin's entitlement tO A and S benefits ings. ne Fbur 1 h is a h h ikt I We note that, while Respondent has excepted to the Administrative e n d e d on February 21, the first day that he picket- Law Judge's finding that it is an Illinois corporation. Respondent has not ed. However, Under E. L. Wiegand Division, Emer- indi ated in which State it is actually incorporated. o lcr C. ua dsimnt s t t- 3C set '^ ^ o n E lecri Co., supra, a discriminatee is not enti- 'All dates are in 1990, unless otherwise noted. We adopt the Administrative Law Judge's recommended remedy as tied tO recover A and S benefits for longer than to William B. Noell and John yin. the period of his disability. Wergin's doctor re- Member Jenkins agrees with the findings herein as to the remedy for the reasons set forth in his dissent in E. L. Wiegand Division, Emerson leased Wergin tO return to work On February 7. Electric Co., 246 NLRB 1143 (1979), enfd. as modified 650 F.2d 463 (3d We therefore find that Wergin's entitlement to Cir. 1981). eei ed o era 7 h a o s d- Member Zimmerman finds it unnecessary to reach the remedial issue benefits ended On February 7, the date of his medi- set forth in Emerson Electric Co., supra, since the result in this case is the cal release. same under either the majority or dissenting approach. 259 NLRB No. 62 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Texaco Oil Company and Robert G. Ravert and Mi- Peter J. Gottfried chadl L. Wergin. Cases 27-CA-6776 and 27- _ ., „ ,, . CA-6776-2eEmployee Gottfried suffered from chronic rheu- matoid arthritis. In December 1979, Gottfried re- November 30, 1981 ceived treatment from a rheumatologist in Califor- nia while on vacation. Gottfried received permis- DECISION AND ORDER sion from Respondent's personnel director by tele- BY MEMBERS FANNING, JENKINS, AND phone t o r e m a in i n California on sick leave in ZIMMERMAN order to finish these treatments. Upon his return to Wyoming on January 6 or 7, Gottfried informed On April 20, 1981, Administrative Law Judge Respondent that he was going to consult his local Joan Wieder issued the attached Decision in this physician before returning to work. However, proceeding. Thereafter, Respondent filed excep- Gottfried did not see his physician until January tions and a supporting brief. 30, approximately 3 weeks later. At that time, Pursuant to the provisions of Section 3(b) of the Gottfried received an injection (gold salts therapy) National Labor Relations Act, as amended, the Na- and was told by his physician that he could return tional Labor Relations Board has delegated its au- to work when he "felt like it." Gottfried testified thority in this proceeding to a three-member panel. that he felt well enough to work on February 11, The Board has considered the record and the at- and that he began to picket at that time. tached Decision in light of the exceptions and brief The Administrative Law Judge found Gottfried's and has decided to affirm the rulings, findings,I and testimony that he was available for work on Febru- conclusions 2 of the Administrative Law Judge, as ary 11 to be dispositive of the issue of what date modified herein, and to adopt her recommended Gottfried's eligibility for A and S benefits ended. Order, as modified. However, it appears that Gottfried may have been We agree with the Administrative Law Judge medically able to work before that time, possibly that Respondent violated Section 8(a)(3) of the Act following his January 30 doctor's appointment. when it terminated the accident and sickness (A Furthermore, Respondent may be correct that and S) benefits of the six discriminatees on January Gottfried unnecessarily waited 3 weeks to see his 8, 1980, 3 the first day of the strike. However, for doctor, and that his chronic condition would not the reasons stated herein, we disagree with the Ad- have prevented him from working shortly after his ministrative Law Judge's recommended remedy as return to Wyoming in early January. We therefore to four of the six individuals. 4 While the Adminis- leave to the compliance stage the question of trative Law Judge correctly determined that these which date Gottfried was medically able to return four discriminatees should be reimbursed for bene- to work. fits lost under Respondent's A and S plan begin- ning on January 8, 1980, we hereby modify her Michael L. Wergin findings as to which date their respective entitle- At the beginning of the strike, Wergin was on ments ended. sick leave because of a knee injury. He was subse- quently released by his doctor on February 7, and began picketing on February 21. *Respondent has excepted to certain credibility findings made by the TI, Administrative Taw Tudce found that there Administrative Law Judge. It is the Board's established policy not to T e Administrative Law Judge found that there overrule an administrative law judge's resolutions with respect to credi- was no indication that Wergin was ready to work bility unless the clear preponderance of all of the relevant evidence con- immediately after his release Or prior tO his com- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have mencement of picketing. She therefore concluded carefully examined the record and find no basis for reversing her find- that Wergin's entitlement tO A and S benefits ings. ne Fbur 1 h is a h h ikt I We note that, while Respondent has excepted to the Administrative e n d e d on February 21, the first day that he picket- Law Judge's finding that it is an Illinois corporation. Respondent has not ed. However, Under E. L. Wiegand Division, Emer- indi ated in which State it is actually incorporated. o lcr C. ua dsimnt s t t- 3C set '^ ^ o n E lecri Co., supra, a discriminatee is not enti- 'All dates are in 1990, unless otherwise noted. We adopt the Administrative Law Judge's recommended remedy as tied tO recover A and S benefits for longer than to William B. Noell and John yin. the period of his disability. Wergin's doctor re- Member Jenkins agrees with the findings herein as to the remedy for the reasons set forth in his dissent in E. L. Wiegand Division, Emerson leased Wergin tO return to work On February 7. Electric Co., 246 NLRB 1143 (1979), enfd. as modified 650 F.2d 463 (3d We therefore find that Wergin's entitlement to Cir. 1981). eei ed o era 7 h a o s d- Member Zimmerman finds it unnecessary to reach the remedial issue benefits ended On February 7, the date of his medi- set forth in Emerson Electric Co., supra, since the result in this case is the cal release. same under either the majority or dissenting approach. 259 NLRB No. 62 TEXACO OIL COMPANY 409 James T. Lake record that Ravert may have been medically able Lake was placed on sick leave in December to return to work before the time that he obtained 1979, due to back problems, and received treat- the release from his doctor. Ravert's own testimo- ments from Respondent's doctor at the Casper fa- ny suggests that Ravert may not have seen his cility. When the strike began, Lake stopped going doctor for several weeks prior to picking up the re- in for treatments because he did not wish to cross lease, and that he may have picked up the release the picket line. Lake did not seek treatment else- on March 24 as a matter of convenience because where, but remained at home and used a heating the strike was ending. Thus, we leave to the com - pad, as the doctor had instructed. Lake testified pliance stage the question of when Ravert was that he could have returned to work "sometime medically able to return to work. after the 20th of January," and that he had begunORDER picketing at that time. Approximately a week earli- er, on January 13, Lake had visited the picket line Pursuant to Section 10(c) of the National Labor in his car, gotten out, and spoken with several of Relations Act, as amended, the National Labor Re- the picketers. lations Board adopts as its Order the recommended The Administrative Law Judge found that Order of the Administrative Law Judge, as modi- Lake's eligibility ended on January 13, because the fled below, and hereby orders that the Respondent, combination of Lake's failure to continue his treat- Texaco Oil Company, Casper, Wyoming, its offi- ment at the facility and his January 13 visit to the cers, agents, successors, and assigns, shall take the picket line constituted public support of the strike action set forth in the said recommended Order, as which disqualified him from further A and S bene- modified below: fits. However, we find that under Emerson Electric Substitute the following for paragraph 2(a): Co., supra, Lake's actions were not a sufficient "(a) Make whole the employees listed in the sec- manifestation of public support to deny him his en- tion of this Decision entitled 'The Remedy,' in the titlement to continued A and S benefits. First, a manner set forth therein, as modified by the failure to go to the facility for treatments is not an Board's Decision, by paying to each whatever sick- "affirmative" demonstration of support for the ness and disability or occupational illness and strike, as is required in Emerson Electric Co.5 injury benefits were due them during the period Second, Lake's testimony established that he did January 8, 1980, to April 1, 1980, with interest." not carry a picket sign, and that his visit to the picket line was social; therefore, it does not estab- DECISION lish that Lake supported the strike. Since there is no other evidence of strike support prior to Lake'sSTATEMENT OF THE CASE recovery, we reject the Administrative Law JOAN WIEDER, Administrative Law Judge: This case Judge's conclusion that Lake's January 13 visit to was heard in Casper, Wyoming, on December 17, 1980.' the picket line disqualified him from further A and Charges were filed on May 10 by Michael L. Wergin S benefits. As the evidence here is insufficient to and on June 2 by Robert G. Ravert. A complaint was make a final determination, we leave to the compli- issued July 25 alleging that Texaco Oil Company, herein ance stage the question of whether Lake was medi- called the Company or Respondent, interfered with, re- cally able to return to work shortly after January strained, and coerced employees in the exercise of their 20, as he testified, or at an earlier time. rights guaranteed by Section 7 of the Act by, on or 20, as he testified, or at an earlier time. about January 8, suspending sickness and disability pay- Robert Ravert ments to five employees; and that by engaging in such conduct and acts because of the Company's employees' At the beginning of the strike, Ravert was on membership in and activities on behalf of the Union, Re- sick leave with three broken ribs and a fractured spondent did discriminate and is discriminating against its shoulder blade. He received a work release from a employees for the purpose of discouraging membership local doctor on March 24. in a union in violation of Section 8(a)3) and (1) of the The Administrative Law Judge concluded that Act. Respondent admits in its answer that certain sick the only clear evidence of Ravert's ability to return and disability payments were terminated, but denies that to work was his March 24 work release. She there- such action was unlawful or in any way resulted in a violation of the National Labor Relations Act, as amend- fore concluded that Ravert's eligibility should end d, herein called the Act. as of that date. However, it appears from the All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- ' We note in this regard that any attempt by Lake to continue his treat- amine witnesses, to argue orally, and to examine briefs. Briefs,- ments would likely have been futile; Robert Ravert. another of the six discriminatees, attempted to enter the facility for his medical treatments during the strike, and was refused entry by Respondent. All dates hereinafter are in 1980 unless otherwise indicated. TEXACO OIL COMPANY 409 James T. Lake record that Ravert may have been medically able Lake was placed on sick leave in December to return to work before the time that he obtained 1979, due to back problems, and received treat- t h e re l e as e fro m his d o c t o r . Ravert's own testimo- ments from Respondent's doctor at the Casper fa- ny suggests t h a t R a v e r t may n o t h a v e se e n his cility. When the strike began, Lake stopped going d o c t o r fo r s e v e ra l weeks prior to picking up the re- in for treatments because he did not wish to cross le a s e , a n d t h a t h e may have picked up the release the picket line. Lake did not seek treatment else- o n M a r c h 2 4 as a matter o f convenience because where, but remained at home and used a heating t h e st rik e was ending. T h u s, we leave to the com- pad, as the doctor had instructed. Lake testified pliance stage the question of when Ravert was that he could have returned to work "sometime medically able to return to work. after the 20th of January," and that he had begun ORDER picketing at that time. Approximately a week earli- er, on January 13, Lake had visited the picket line Pursuant to Section 10(c) of the National Labor in his car, gotten out, and spoken with several of Relations Act, as amended, the National Labor Re- the picketers. lations Board adopts as its Order the recommended The Administrative Law Judge found that Order of the Administrative Law Judge, as modi- Lake's eligibility ended on January 13, because the fied below, and hereby orders that the Respondent, combination of Lake's failure to continue his treat- Texaco Oil Company, Casper, Wyoming, its offi- ment at the facility and his January 13 visit to the cers, agents, successors, and assigns, shall take the picket line constituted public support of the strike action set forth in the said recommended Order, as which disqualified him from further A and S bene- modified below: fits. However, we find that under Emerson Electric Substitute the following for paragraph 2(a): Co.. supra, Lake's actions were not a sufficient "(a) Make whole the employees listed in the sec- manifestation of public support to deny him his en- tion of this Decision entitled 'The Remedy,' in the titlement to continued A and S benefits. First, a manner set forth therein, as modified by the failure to go to the facility for treatments is not an Board's Decision, by paying to each whatever sick- "affirmative" demonstration of support for the ness and disability or occupational illness and strike, as is required in Emerson Electric Co.5I injury benefits were due them during the period Second, Lake's testimony established that he did January 8, 1980, to April 1, 1980, with interest." not carry a picket sign, and that his visit to the picket line was social; therefore, it does not estab- DECISION lish that Lake supported the strike. Since there is no other evidence of strike support prior to Lake'sSTATEMENT OF THE CASE recovery, we reject the Administrative Law JOAN WIEDER, Administrative Law Judge: This case Judge's conclusion that Lake's January 13 visit to was heard in Casper, Wyoming, on December 17, 1980.' the picket line disqualified him from further A and Charges were filed on May 10 by Michael L. Wergin S benefits. As the evidence here is insufficient to and on June 2 by Robert G. Ravert. A complaint was make a final determination, we leave to the compli- issued July 25 alleging that Texaco Oil Company, herein ance stage the question of whether Lake was medi- ca ll ed t h e Company or Respondent, interfered with, re- cally able to return to work shortly after January st r aine d , an d co e rc ed employees in the exercise of their 20, as he testified, or at an earlier time. rights guaranteed by Section 7 of the Act by, on or 20, as he testified, or at an earlier time. j y Jp igscnsaddsbltya- about January 8, suspending sickness and disability pay- Robert Ravert ments to five employees; and that by engaging in such conduct and acts because of the Company's employees' At the beginning of the strike, Ravert was on membership in and activities on behalf of the Union, Re- sick leave with three broken ribs and a fractured spondent did discriminate and is discriminating against its shoulder blade. He received a work release from a employees for the purpose of discouraging membership local doctor on March 24. in a union in violation of Section 8(aX3) and (1) of the The Administrative Law Judge concluded that A c t. Respondent admits in its answer that certain sick the only clear evidence of Ravert's ability to return and disability payments were terminated, but denies that to work was his March 24 work release. She there- su c h a ctio n w a s un la w fu l or in any way resulted in a fore _, concluded that R erts eligibility should end .violation of the National Labor Relations Act, as amend- fore concluded that Raverts eligibility should end , herein called the Act. as of that date. However, it appears from the All parties were given full opportunity to participate, ------- ~~~~~~~~~~~~to introduce relevant evidence, to examine and cross-ex- L We note in this regard that any attempt by Lake to continue his treat- tointroduce relevant evidence, to eaie and cBriefs, ments would likely have been futile; Robert Ravert. another of the six amnwiesstaruoalyadtofebifsBif, discriminatees, attempted to enter the facility for his medical treatments during the strike, and was refused entry by Respondent. IAll dates hereinafter are in 1980 unless otherwise indicated. TEXACO OIL COMPANY 409 James T. Lake record that Ravert may have been medically able Lake was placed on sick leave in December to return to work before the time that he obtained 1979, due to back problems, and received treat- t h e re l e as e fro m his d o c t o r . Ravert's own testimo- ments from Respondent's doctor at the Casper fa- ny suggests t h a t R a v e r t may n o t h a v e se e n his cility. When the strike began, Lake stopped going d o c t o r fo r s e v e ra l weeks prior to picking up the re- in for treatments because he did not wish to cross le a s e , a n d t h a t h e may have picked up the release the picket line. Lake did not seek treatment else- o n M a r c h 2 4 as a matter of convenience because where, but remained at home and used a heating t h e st r ik e was ending. Thus, we leave to the com- pad, as the doctor had instructed. Lake testified pliance stage the question of when Ravert was that he could have returned to work "sometime medically able to return to work. after the 20th of January," and that he had begun ORDER picketing at that time. Approximately a week earli- er, on January 13, Lake had visited the picket line Pursuant to Section 10(c) of the National Labor in his car, gotten out, and spoken with several of Relations Act, as amended, the National Labor Re- the picketers. lations Board adopts as its Order the recommended The Administrative Law Judge found that Order of the Administrative Law Judge, as modi- Lake's eligibility ended on January 13, because the fied below, and hereby orders that the Respondent, combination of Lake's failure to continue his treat- Texaco Oil Company, Casper, Wyoming, its offi- ment at the facility and his January 13 visit to the cers, agents, successors, and assigns, shall take the picket line constituted public support of the strike action set forth in the said recommended Order, as which disqualified him from further A and S bene- modified below: fits. However, we find that under Emerson Electric Substitute the following for paragraph 2(a): Co.. supra, Lake's actions were not a sufficient "(a) Make whole the employees listed in the sec- manifestation of public support to deny him his en- tion of this Decision entitled 'The Remedy,' in the titlement to continued A and S benefits. First, a manner set forth therein, as modified by the failure to go to the facility for treatments is not an Board's Decision, by paying to each whatever sick- "affirmative" demonstration of support for the ness and disability or occupational illness and strike, as is required in Emerson Electric Co.5I injury benefits were due them during the period Second, Lake's testimony established that he did January 8, 1980, to April 1, 1980, with interest." not carry a picket sign, and that his visit to the picket line was social; therefore, it does not estab- DECISION lish that Lake supported the strike. Since there is no other evidence of strike support prior to Lake'sSTATEMENT OF THE CASE recovery, we reject the Administrative Law JOAN WIEDER, Administrative Law Judge: This case Judge's conclusion that Lake's January 13 visit to was heard in Casper, Wyoming, on December 17, 1980.' the picket line disqualified him from further A and Charges were filed on May 10 by Michael L. Wergin S benefits. As the evidence here is insufficient to and on June 2 by Robert G. Ravert. A complaint was make a final determination, we leave to the compli- issued July 25 alleging that Texaco Oil Company, herein ance stage the question of whether Lake was medi- ca ll ed t h e Company or Respondent, interfered with, re- cally able to return to work shortly after January st r aine d , an d co e rc ed employees in the exercise of their 20, as he testified, or at an earlier time. rights guaranteed by Section 7 of the Act by, on or 20, as he testified, or at an earlier time. j y Jp igscnsaddsbltya- about January 8, suspending sickness and disability pay- Robert Ravert ments to five employees; and that by engaging in such conduct and acts because of the Company's employees' At the beginning of the strike, Ravert was on membership in and activities on behalf of the Union, Re- sick leave with three broken ribs and a fractured spondent did discriminate and is discriminating against its shoulder blade. He received a work release from a employees for the purpose of discouraging membership local doctor on March 24. in a union in violation of Section 8(aX3) and (1) of the The Administrative Law Judge concluded that A c t. Respondent admits in its answer that certain sick the only clear evidence of Ravert's ability to return and disability payments were terminated, but denies that to work was his March 24 work release. She there- su c h a ctio n w a s un la w fu l or in any way resulted in a fore _, concluded that R erts eligibility should end .violation of the National Labor Relations Act, as amend- fore concluded that Raverts eligibility should end , herein called the Act. as of that date. However, it appears from the All parties were given full opportunity to participate, ------- ~~~~~~~~~~~~to introduce relevant evidence, to examine and cross-ex- L We note in this regard that any attempt by Lake to continue his treat- tointroduce relevant evidence, to eaie and cBriefs, ments would likely have been futile; Robert Ravert. another of the six amnwiesstaruoalyadtofebifsBif, discriminatees, attempted to enter the facility for his medical treatments during the strike, and was refused entry by Respondent. IAll dates hereinafter are in 1980 unless otherwise indicated. TEXACO OIL COMPANY 409 James T. Lake record that Ravert may have been medically able Lake was placed on sick leave in December to return to work before the time that he obtained 1979, due to back problems, and received treat- t h e re l e as e fro m his d o c t o r . Ravert's own testimo- ments from Respondent's doctor at the Casper fa- ny suggests t h a t R a v e r t may n o t h a v e se e n his cility. When the strike began, Lake stopped going d o c t o r fo r s e v e ra l weeks prior to picking up the re- in for treatments because he did not wish to cross le a s e , a n d t h a t h e may have picked up the release the picket line. Lake did not seek treatment else- o n M arc h 24 as a matter of convenience because where, but remained at home and used a heating t h e st r ik e was ending. Thus, we leave to the com- pad, as the doctor had instructed. Lake testified pliance stage the question of when Ravert was that he could have returned to work "sometime medically able to return to work. after the 20th of January," and that he had begun ORDER picketing at that time. Approximately a week earli- er, on January 13, Lake had visited the picket line Pursuant to Section 10(c) of the National Labor in his car, gotten out, and spoken with several of Relations Act, as amended, the National Labor Re- the picketers. lations Board adopts as its Order the recommended The Administrative Law Judge found that Order of the Administrative Law Judge, as modi- Lake's eligibility ended on January 13, because the fied below, and hereby orders that the Respondent, combination of Lake's failure to continue his treat- Texaco Oil Company, Casper, Wyoming, its offi- ment at the facility and his January 13 visit to the cers, agents, successors, and assigns, shall take the picket line constituted public support of the strike action set forth in the said recommended Order, as which disqualified him from further A and S bene- modified below: fits. However, we find that under Emerson Electric Substitute the following for paragraph 2(a): Co.. supra, Lake's actions were not a sufficient "(a) Make whole the employees listed in the sec- manifestation of public support to deny him his en- tion of this Decision entitled 'The Remedy,' in the titlement to continued A and S benefits. First, a manner set forth therein, as modified by the failure to go to the facility for treatments is not an Board's Decision, by paying to each whatever sick- "affirmative" demonstration of support for the ness and disability or occupational illness and strike, as is required in Emerson Electric Co.5I injury benefits were due them during the period Second, Lake's testimony established that he did January 8, 1980, to April 1, 1980, with interest." not carry a picket sign, and that his visit to the picket line was social; therefore, it does not estab- DECISION lish that Lake supported the strike. Since there is no other evidence of strike support prior to Lake'sSTATEMENT OF THE CASE recovery, we reject the Administrative Law JOAN WIEDER, Administrative Law Judge: This case Judge's conclusion that Lake's January 13 visit to was heard in Casper, Wyoming, on December 17, 1980.' the picket line disqualified him from further A and Charges were filed on May 10 by Michael L. Wergin S benefits. As the evidence here is insufficient to and on June 2 by Robert G. Ravert. A complaint was make a final determination, we leave to the compli- issued July 25 alleging that Texaco Oil Company, herein ance stage the question of whether Lake was medi- ca ll ed t h e Company or Respondent, interfered with, re- cally able to return to work shortly after January st r aine d , an d co e rc ed employees in the exercise of their 20, as he testified, or at an earlier time. rights guaranteed by Section 7 of the Act by, on or 20, as he testified, or at an earlier time. j y Jp igscnsaddsbltya- about January 8, suspending sickness and disability pay- Robert Ravert ments to five employees; and that by engaging in such conduct and acts because of the Company's employees' At the beginning of the strike, Ravert was on membership in and activities on behalf of the Union, Re- sick leave with three broken ribs and a fractured spondent did discriminate and is discriminating against its shoulder blade. He received a work release from a employees for the purpose of discouraging membership local doctor on March 24. in a union in violation of Section 8(aX3) and (1) of the The Administrative Law Judge concluded that A c t. Respondent admits in its answer that certain sick the only clear evidence of Ravert's ability to return and disability payments were terminated, but denies that to work was his March 24 work release. She there- su c h a ctio n w a s un la w fu l or in any way resulted in a fore _, concluded that R erts eligibility should end .violation of the National Labor Relations Act, as amend- fore concluded that Raverts eligibility should end , herein called the Act. as of that date. However, it appears from the All parties were given full opportunity to participate, ------- ~~~~~~~~~~~~to introduce relevant evidence, to examine and cross-ex- m We note in this regard that any attempt by Lake to continue his treat- tointroduce relevant evidence, to eaie and cBriefs, ments would likely have been futile; Robert Ravert. another of the six amnwiesstaruoalyadtofebifsBif, discriminatees, attempted to enter the facility for his medical treatments during the strike, and was refused entry by Respondent. IAll dates hereinafter are in 1980 unless otherwise indicated. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which were filed on behalf of the General Counsel and change or modify such PLANS during the term of this the Company on or about January 19, 1981, have been Agreement in such a way as to decrease the benefits carefully considered. under saidPLANS to any employee covered by this Upon the entire record, including especially my obser- Agreement." vation of the witnesses and their demeanor, I make the The details of the plan itself are contained in a booklet following: entitled "Accident and Sick Benefit Plan." s An employee qualifies for accident and sick benefit payments after 1 FINDINGS OF FACT year of employment. The amount of benefits received is I. THE BUSINESS OF THE COMPANY dependent upon the completed years of service. The plan encompasses all regular employees of Texaco who are The Company is an Illinois corporation with an office located within the United States, 4 who are absent from and place of business in Casper, Wyoming, herein called work because of illness or accident. The individuals in- the Casper refinery, which is engaged in the processing, volved in this case were all described as receiving bene- nonretail sale, and distribution of petroleum and related fits for nonoccupational illness or injury. They had been products. During the course and conduct of its business receiving payments under the plan before the strike com- at Casper, the Company annually sells and distributes menced and had their accident and sick benefits termi- goods and materials valued in excess of $50,000 to points nated at the commencement of the strike. Those employ- and places outside the State of Wyoming. It is admitted, ees are: Peter J. Gottfried, Michael L. Wergin, William and I find, that Respondent is an employer engaged in B. Noell, John Vin, James T. Lake, and Robert G. commerce within the meaning of Section 2(2), (6), and Ravert. It appears from the record that these were the (7) of the Act. only unit members who were receiving accident and sickness benefits at the commencement of the strike. All II. THE LABOR ORGANIZATION other employees in the unit apparently participated in the The Oil, Chemical and Atomic Workers International strike. Union (OCAW), and its Local No. 2-230, herein individ- The contract negotiation meeting of January 8, 1980, ually and jointly referred to as the Union, are admitted was memorialized by the Company in a memorandum to be, and I find that they are, labor orgenizations within submitted as Respondent's Exhibit, and contains the fol- the meaning of Section 2(5) of the Act. lowing statements: III. THE ALLEGED UNFAIR LABOR PRACTICES Upon commencement of a strike, all A & S benefits will be discontinued, except in those cases involving A. Background ~A. Backgrou~nd~ industrial accident or injury. A & S benefits will be The Union and Respondent have, since the 1930's, continued to those employees who are disabled due maintained a bargaining relationship. The Union repre- to industrial injury until medically released by their sents a unit of approximately 160 employees. On January doctors or until expiration of their benefits in ac- 8, at approximately 3 p.m., an economic strike com- cordance with the Plan's benefit schedule, which- menced at the refinery and lasted until March 30, when ever occurs first. the employees began returning to work at 11 p.m. 2 On the day the strike commenced, the Company in- C. The Recipients of Accident and Sickness Benefits formed the Union that accident and sickness benefits were being terminated when the strike began. 1. Peter J. Gottfried B. Provisions of Applicable Benefit Plans Gottfried, a union member, had an ongoing chronic ill- ness, rheumatoid arthritis. In December 1979, while va- Article XV of the applicable collective-bargaining cationing in California, he sought treatment from a rheu- agreement provides that, if a work stoppage, defined as matologist, a physician who specializes in this disease.6 covered by the agreement, occurs, "[A]ll obligations im- On or about December 22, Gottfried contacted F. M. posed upon the parties to this Labor Agreement will be Chaney, the personnel director of Respondent's Casper suspended with the commencement of such strike and facility, an admitted supervisor. Chaney instructed Gott- shall continue to be suspended, unless and until it is mu- fried to pursue his consultations with the specialist; to tually agreeable to both parties to reimpose said obliga- follow the prescribed course of treatment; and to take all tions." The contract further provides in article VIII, sec- the time necessary. On or about December 26 or Decem- tion 2, that the accident and sickness benefit plan is to be ber 28, 1979, Gottfried again called Chaney and in- incorporated into and made a part of the collective-bar- gaining agreement subject to all the provisions of the ' Only the accident and sickness benefit plan is involved in the instant plan which will determine "all the questions arising proceeding. under and in connection with the plans, except that the With a stated exception not herein pertinent. ~taCompany agre tit will not voluntarily discontinue, th There is no evidence indicating that any other hourly employees *Company agrees that it will not voluntarily discontinue, were not represented by any union or were represented by a bargaining agent other than the OCAW. Furthermore, there was no indication as to It is unrefuted that the strike was an economic strike occasioned by whether any unrepresented or supervisory employees were eligible for the failure of Respondent and the Union to reach agreement during nego- accident and sickness benefits and did or did not receive any payments tiations which commenced pursuant to a provision in the contract for re- under the plan. opening the agreement. It is unrefuted that there are no rheumatologists in Casper, Wyoming. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which were filed on behalf of the General Counsel and change or modify such PLANS during the term of this the Company on or about January 19, 1981, have been Agreement in such a way as to decrease the benefits carefully considered,.under si rdPLANS to any employee covered by this Upon the entire record, including especially my obser- Agreement." vation of the witnesses and their demeanor, I make the The details of the plan itself are contained in a booklet following: entitled "Accident and Sick Benefit Plan."3 An employee qualifies for accident and sick benefit payments after 1 FINDINGS OF FACT year of employment. The amount of benefits received is I. THE BUSINESS OF THE COMPANY dependent upon the completed years of service. The plan encompasses all regular employees of Texaco who are The Company is an Illinois corporation with an office located within the United States,' who are absent from and place of business in Casper, Wyoming, herein called work because of illness or accident. The individuals in- the Casper refinery, which is engaged in the processing, volved in this case were all described as receiving bene- nonretail sale, and distribution of petroleum and related fits for nonoccupational illness or injury. They had been products. During the course and conduct of its business receiving payments under the plan before the strike com- at Casper, the Company annually sells and distributes menced and had their accident and sick benefits termi- goods and materials valued in excess of $50,000 to points nated at the commencement of the strike. Those employ- and places outside the State of Wyoming. It is admitted, ees are: Peter J. Gottfried, Michael L. Wergin, William and I find, that Respondent is an employer engaged in B. Noell, John Vin, James T. Lake, and Robert G. commerce within the meaning of Section 2(2), (6), and Ravert. It appears from the record that these were the (7) of the Act. only unit members who were receiving accident and II. THE^ LABOR ORGANIZATION ^ .sickness benefits at the commencement of the strike. All II. THE LABOR ORGANIZATION. 1 * 1 _^. . other employees in the unit apparently participated in the The Oil, Chemical and Atomic Workers International strike.6 Union (OCAW), and its Local No. 2-230, herein individ- The contract negotiation meeting of January 8, 1980, ually and jointly referred to as the Union, are admitted was memorialized by the Company in a memorandum to be, and I find that they are, labor orgenizations within submitted as Respondent's Exhibit, and contains the fol- the meaning of Section 2(5) of the Act. lowing statements: III. THE ALLEGED UNFAIR LABOR PRACTICES Upon commencement of a strike, all A & S benefits A. Background will be discontinued, except in those cases involving A. Background. , .. * .„„. _ . industrial accident or injury. A & S benefits will be The Union and Respondent have, since the 1930's, continued to those employees who are disabled due maintained a bargaining relationship. The Union repre- to industrial injury until medically released by their sents a unit of approximately 160 employees. On January doctors or until expiration of their benefits in ac- 8, at approximately 3 p.m., an economic strike com- cordance with the Plan's benefit schedule, which- menced at the refinery and lasted until March 30, when ever occurs first. the employees began returning to work at 11 p.m. 2 On the day the strike commenced, the Company in- C. The Recipients of Accident and Sickness Benefits formed the Union that accident and sickness benefits were being terminated when the strike began. 1. Peter J. Gottfried B. Provisions ofApplicable Benefit Plans Gottfried, a union member, had an ongoing chronic ill- ness, rheumatoid arthritis. In December 1979, while va- Article XV of the applicable collective-bargaining cationing in California, he sought treatment from a rheu- agreement provides that, if a work stoppage, defined as matologist, a physician who specializes in this disease." covered by the agreement, occurs, "[A]ll obligations im- On or about December 22, Gottfried contacted F. M. posed upon the parties to this Labor Agreement will be Chaney, the personnel director of Respondent's Casper suspended with the commencement of such strike and facility, an admitted supervisor. Chaney instructed Gott- shall continue to be suspended, unless and until it is mu- fried to pursue his consultations with the specialist; to tually agreeable to both parties to reimpose said obliga- follow the prescribed course of treatment; and to take all tions." The contract further provides in article VIII, sec- the time necessary. On or about December 26 or Decem- tion 2, that the accident and sickness benefit plan is to be ber 28, 1979, Gottfried again called Chaney and in- incorporated into and made a part of the collective-bar- gaining agreement Subject to all the provisions of the I Only the accident and sickness benefit plan is involved in the instant plan which will determine "all the questions arising proceeding. under and in connection with the plans, except that the W ith a st ate d exception not herein pertinent. Company agrees that it will not voluntarily discontinue, " Ther e is no evidenc e indic at ing that any other hourly employees Company agrees that it will not voluntarily discontinue, were not represented by any union or were represented by a bargaining agent other than the OCAW. Furthermore, there was no indication as to 'It is unrefuted that the strike was an economic strike occasioned by whether any unrepresented or supervisory employees were eligible for the failure of Respondent and the Union to reach agreement during nego- accident and sickness benefits and did or did not receive any payments tiations which commenced pursuant to a provision in the contract for re- under the plan. opening the agreement.* It is unrefuted that there are no rheumatologists in Casper, Wyoming. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which were filed on behalf of the General Counsel and change or modify such PLANS during the term of this the Company on or about January 19, 1981, have been Agreement in such a way as to decrease the benefits carefully considered,.under si rdPLANS to any employee covered by this Upon the entire record, including especially my obser- Agreement." vation of the witnesses and their demeanor, I make the The details of the plan itself are contained in a booklet following: entitled "Accident and Sick Benefit Plan."3 An employee qualifies for accident and sick benefit payments after 1 FINDINGS OF FACT year of employment. The amount of benefits received is I. THE BUSINESS OF THE COMPANY dependent upon the completed years of service. The plan encompasses all regular employees of Texaco who are The Company is an Illinois corporation with an office located within the United States,' who are absent from and place of business in Casper, Wyoming, herein called work because of illness or accident. The individuals in- the Casper refinery, which is engaged in the processing, volved in this case were all described as receiving bene- nonretail sale, and distribution of petroleum and related fits for nonoccupational illness or injury. They had been products. During the course and conduct of its business receiving payments under the plan before the strike com- at Casper, the Company annually sells and distributes menced and had their accident and sick benefits termi- goods and materials valued in excess of $50,000 to points nated at the commencement of the strike. Those employ- and places outside the State of Wyoming. It is admitted, ees are: Peter J. Gottfried, Michael L. Wergin, William and I find, that Respondent is an employer engaged in B. Noell, John Vin, James T. Lake, and Robert G. commerce within the meaning of Section 2(2), (6), and Ravert. It appears from the record that these were the (7) of the Act. only unit members who were receiving accident and II. THE^ LABOR ORGANIZATION ^ .sickness benefits at the commencement of the strike. All II. THE LABOR ORGANIZATION. 1 * 1 _^. . other employees in the unit apparently participated in the The Oil, Chemical and Atomic Workers International strike.6 Union (OCAW), and its Local No. 2-230, herein individ- The contract negotiation meeting of January 8, 1980, ually and jointly referred to as the Union, are admitted was memorialized by the Company in a memorandum to be, and I find that they are, labor orgenizations within submitted as Respondent's Exhibit, and contains the fol- the meaning of Section 2(5) of the Act. lowing statements: III. THE ALLEGED UNFAIR LABOR PRACTICES Upon commencement of a strike, all A & S benefits A. Background will be discontinued, except in those cases involving A. Background. , .. * .„„. _ . industrial accident or injury. A & S benefits will be The Union and Respondent have, since the 1930's, continued to those employees who are disabled due maintained a bargaining relationship. The Union repre- to industrial injury until medically released by their sents a unit of approximately 160 employees. On January doctors or until expiration of their benefits in ac- 8, at approximately 3 p.m., an economic strike com- cordance with the Plan's benefit schedule, which- menced at the refinery and lasted until March 30, when ever occurs first. the employees began returning to work at 11 p.m. 2 On the day the strike commenced, the Company in- C. The Recipients of Accident and Sickness Benefits formed the Union that accident and sickness benefits were being terminated when the strike began. 1. Peter J. Gottfried B. Provisions ofApplicable Benefit Plans Gottfried, a union member, had an ongoing chronic ill- ness, rheumatoid arthritis. In December 1979, while va- Article XV of the applicable collective-bargaining cationing in California, he sought treatment from a rheu- agreement provides that, if a work stoppage, defined as matologist, a physician who specializes in this disease." covered by the agreement, occurs, "[A]ll obligations im- On or about December 22, Gottfried contacted F. M. posed upon the parties to this Labor Agreement will be Chaney, the personnel director of Respondent's Casper suspended with the commencement of such strike and facility, an admitted supervisor. Chaney instructed Gott- shall continue to be suspended, unless and until it is mu- fried to pursue his consultations with the specialist; to tually agreeable to both parties to reimpose said obliga- follow the prescribed course of treatment; and to take all tions." The contract further provides in article VIII, sec- the time necessary. On or about December 26 or Decem- tion 2, that the accident and sickness benefit plan is to be ber 28, 1979, Gottfried again called Chaney and in- incorporated into and made a part of the collective-bar- gaining agreement Subject to all the provisions of the I Only the accident and sickness benefit plan is involved in the instant plan which will determine "all the questions arising proceeding. under and in connection with the plans, except that the W ith a st ate d exception not herein pertinent. Company agrees that it will not voluntarily discontinue, " Ther e is no evidenc e indic at ing that any other hourly employees Company agrees that it will not voluntarily discontinue, were not represented by any union or were represented by a bargaining agent other than the OCAW. Furthermore, there was no indication as to 'It is unrefuted that the strike was an economic strike occasioned by whether any unrepresented or supervisory employees were eligible for the failure of Respondent and the Union to reach agreement during nego- accident and sickness benefits and did or did not receive any payments tiations which commenced pursuant to a provision in the contract for re- under the plan. opening the agreement.* It is unrefuted that there are no rheumatologists in Casper, Wyoming. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which were filed on behalf of the General Counsel and change or modify such PLANS during the term of this the Company on or about January 19, 1981, have been Agreement in such a way as to decrease the benefits carefully considered,.under si rdPLANS to any employee covered by this Upon the entire record, including especially my obser- Agreement." vation of the witnesses and their demeanor, I make the The details of the plan itself are contained in a booklet following: entitled "Accident and Sick Benefit Plan."3 An employee qualifies for accident and sick benefit payments after 1 FINDINGS OF FACT year of employment. The amount of benefits received is I. THE BUSINESS OF THE COMPANY dependent upon the completed years of service. The plan encompasses all regular employees of Texaco who are The Company is an Illinois corporation with an office located within the United States,' who are absent from and place of business in Casper, Wyoming, herein called work because of illness or accident. The individuals in- the Casper refinery, which is engaged in the processing, volved in this case were all described as receiving bene- nonretail sale, and distribution of petroleum and related fits for nonoccupational illness or injury. They had been products. During the course and conduct of its business receiving payments under the plan before the strike com- at Casper, the Company annually sells and distributes menced and had their accident and sick benefits termi- goods and materials valued in excess of $50,000 to points nated at the commencement of the strike. Those employ- and places outside the State of Wyoming. It is admitted, ees are: Peter J. Gottfried, Michael L. Wergin, William and I find, that Respondent is an employer engaged in B. Noell, John Vin, James T. Lake, and Robert G. commerce within the meaning of Section 2(2), (6), and Ravert. It appears from the record that these were the (7) of the Act. only unit members who were receiving accident and II. THE^ LABOR ORGANIZATION ^ .sickness benefits at the commencement of the strike. All II. THE LABOR ORGANIZATION. 1 * 1 _^. . other employees in the unit apparently participated in the The Oil, Chemical and Atomic Workers International strike.6 Union (OCAW), and its Local No. 2-230, herein individ- The contract negotiation meeting of January 8, 1980, ually and jointly referred to as the Union, are admitted was memorialized by the Company in a memorandum to be, and I find that they are, labor orgenizations within submitted as Respondent's Exhibit, and contains the fol- the meaning of Section 2(5) of the Act. lowing statements: III. THE ALLEGED UNFAIR LABOR PRACTICES Upon commencement of a strike, all A & S benefits A. Background will be discontinued, except in those cases involving A. Background. , .. * .„„. _ . industrial accident or injury. A & S benefits will be The Union and Respondent have, since the 1930's, continued to those employees who are disabled due maintained a bargaining relationship. The Union repre- to industrial injury until medically released by their sents a unit of approximately 160 employees. On January doctors or until expiration of their benefits in ac- 8, at approximately 3 p.m., an economic strike com- cordance with the Plan's benefit schedule, which- menced at the refinery and lasted until March 30, when ever occurs first. the employees began returning to work at 11 p.m. 2 On the day the strike commenced, the Company in- C. The Recipients of Accident and Sickness Benefits formed the Union that accident and sickness benefits were being terminated when the strike began. 1. Peter J. Gottfried B. Provisions ofApplicable Benefit Plans Gottfried, a union member, had an ongoing chronic ill- ness, rheumatoid arthritis. In December 1979, while va- Article XV of the applicable collective-bargaining cationing in California, he sought treatment from a rheu- agreement provides that, if a work stoppage, defined as matologist, a physician who specializes in this disease." covered by the agreement, occurs, "[A]ll obligations im- On or about December 22, Gottfried contacted F. M. posed upon the parties to this Labor Agreement will be Chaney, the personnel director of Respondent's Casper suspended with the commencement of such strike and facility, an admitted supervisor. Chaney instructed Gott- shall continue to be suspended, unless and until it is mu- fried to pursue his consultations with the specialist; to tually agreeable to both parties to reimpose said obliga- follow the prescribed course of treatment; and to take all tions." The contract further provides in article VIII, sec- the time necessary. On or about December 26 or Decem- tion 2, that the accident and sickness benefit plan is to be ber 28, 1979, Gottfried again called Chaney and in- incorporated into and made a part of the collective-bar- gaining agreement Subject to all the provisions of the I Only the accident and sickness benefit plan is involved in the instant plan which will determine "all the questions arising proceeding. under and in connection with the plans, except that the W ith a st ate d exception not herein pertinent. Company agrees that it will not voluntarily discontinue, " Ther e is no evidenc e indic at ing that any other hourly employees Company agrees that it will not voluntarily discontinue, were not represented by any union or were represented by a bargaining agent other than the OCAW. Furthermore, there was no indication as to 'It is unrefuted that the strike was an economic strike occasioned by whether any unrepresented or supervisory employees were eligible for the failure of Respondent and the Union to reach agreement during nego- accident and sickness benefits and did or did not receive any payments tiations which commenced pursuant to a provision in the contract for re- under the plan. opening the agreement.* It is unrefuted that there are no rheumatologists in Casper, Wyoming. TEXACO OIL COMPANY 411 formed him he would be unable to finish the prescribed sickness pay. This argument is considered to be without course of treatment within the allotted vacation time and merit. Respondent unrefutedly paid Gottfried accident would have to be placed on sick leave, which was per- and sickness benefits until the strike commenced. The ob- mitted by the Company. Gottfried remained in California ligations to ascertain Gottfried's ability to return to work receiving the treatments prescribed by the rheumatolo- and his willingness to do so remained the same, and it gist until January 6 or 7, when he returned to Casper cannot now be argued that he never qualified for acci- and resumed treatments under his own physician. Upon dent and sickness payments if Respondent had never pre- his return to Casper, he telephoned the Company and viously questioned the propriety of his receiving such asked to speak to Chaney, who was unavailable; there- benefits, as demonstrated by its willingness to pay acci- fore, he spoke to a Mr. Mathis and informed him that he dent and sickness payments until the strike commenced. was going to consult his local physician prior to return- Accordingly, Gottfried's testimony that he was available ing to work. Gottfried believes the telephone conversa- will be consid d tion occurred on or about January 7. Gottfried saw his fo r wen he a e be t reurn t be consided dis psitive personal physician in Casper on January 30, and received of when he was eligible to return to work, and his failure personal physician in Casper on January 30, and received another treatment which was apparently an injection, de- to do so will be construed as an affirmative showing of scribed as gold salts therapy, and was told he was re- support for the strike. Respondent admitted that it never spending well to the treatment. His physician informed inquired if Gottfried supported the strike. him that he could return to work when he "felt like it."7 Shortly after the strike commenced, Gottfried again 2. Michael L. Wergin tried to contact Chaney telephonically to tell him about Wergin, a union member, commenced employment the mndical treatment, but was unsuccessful. Gottfried with Texaco in 1971. On or about the evening of Janu- decided that, because of the strike, there was no use in ary 6, he went on sick leave because he injured a knee. continuing his attempts to contact Chaney; he did not He underwent knee surgery. On or about February 7,' think it was necessary until he had received sufficient in- he was released by his doctor. Approximately 2 weeks formation from his own physician to relate to the Co- later he commenced picketing. Wergin received sickness pany a more definitive indication of his medical status.. . Gottfried received payments for sickness and disability and dlsablty payments for the perod preceding the commencement of the strike, which were terminated on under the plan administered by Respondent until January commencement of te strie 8, when all payments terminated. Gottfried did not pro- January 8 He did not receve any payments for the test to Texaco when his accident and sickness benefits period subsequent to the commencement of the strike. were terminated in January at the commencement of the Wergin admitted that he did not report to work after he strike because he did not think it would do any good. was released from the doctor because he decided to Gottfried also did not attempt to make any reports after honor the picket line and to support the strike. He did his unsuccessful attempt to call Chaney. Gottfried's fail- not report his release for work to the Company at the ure to report was done with the admitted knowledge time received because of the strike and his decision to that the Company had an absentee policy but he does participate therein.9 not interpret that policy as requiring day-to-day report- Wergin began picketing on or about February 21 and ing while an employee is on sick leave. During the week he continued to picket for the duration of the strike of February 1, Gottfried felt well enough to take part in whenever his turn came up in the picketing rotation. the strike and he commenced picketing. The picketing Also during the strike, Wergin found a regular job, was engaged in pursuant to his doctor's instructions, who which he currently holds, at Anexter Mine Supply. The told him to go back to work or to assume picket duty date he started working for Anexter Mine Supply is not when he felt like it. As soon as Gottfried felt well a matter of record. There is no indication that he was enough to go back to work, he actively supported the ready to work immediately after his release on or about strike, feeling it was an obligation. Gottfried testified that February 7 or prior to his commencement of picketing he conscientiously could never cross a picket line, he on or about February 21. Accordingly, his change of em- would have to show some support for the strike. Gott- ployment to Anexter Mine Supply is not found to dem- fried has never crossed a picket line. onstrate overt support for the strike prior to February 21 Respondent, in its brief, argues that there was no sig- when he actively bean to picket nificant difference in Gottfried's arthritic condition from the time he went on vacation to his return to Wyoming on January 8, and, therefore, he should be considered ready to return to work and not eligible for accident and The witness stated it was either February 7 or 10 that he was re- leased by his doctor. Oottfried had informed the Company on the day of the strike, when ' Wergin is one of the Charging Parties. He signed a charge that was he returned from California, that he had to have an appointment with his prepared for him, apparently by some union personnel. These facts are own doctor to undergo the treatment recommended by the specialist in inadequate to support a finding that the filing of the charge by Wergin or California. There was no indication as to why the appointment was held any other individual was in contravention of the strike settlement agree- several weeks after his return, whether it was pursuant to doctor's ment which the Union executed and contained a provision for withdraw- instructions or caused by other factors. Respondent seeks to infer that the al of all unfair labor practice charges by the Union. There was no show- delay was occasioned by Gottfried's assumption that he was on strike and ing that the Union did not withdraw all charges it previously filed, pursu- there was no need to rush until the strike was over. This inference is in- ant to the agreement, or that any of its activities on behalf of Wergin supportable because there was no evidence to indicate that Gottfried were not consonant with its duties of fair representation to its members knew that the strike would last until January 30. or were in contravention of the strike settlement agreement. TEXACO OIL COMPANY 411 formed him he would be unable to finish the prescribed sickness pay. This argument is considered to be without course of treatment within the allotted vacation time and merit. Respondent unrefutedly paid Gottfried accident would have to be placed on sick leave, which was per- and sickness benefits until the strike commenced. The ob- mitted by the Company. Gottfried remained in California ligations to ascertain Gottfried's ability to return to work receiving the treatments prescribed by the rheumatolo- and his willingness to do so remained the same, and it gist until January 6 or 7, when he returned to Casper cannot now be argued that he never qualified for acci- and resumed treatments under his own physician. Upon dent and sickness payments if Respondent had never pre- his return to Casper, he telephoned the Company and viously questioned the propriety of his receiving such asked to speak to Chaney, who was unavailable; there- benefits, as demonstrated by its willingness to pay acci- fore, he spoke to a Mr. Mathis and informed him that he dent and sickness payments until the strike commenced. was going to consult his local physician prior to return- Accordingly, Gottfried's testimony that he was available ing to work. Gottfried believes the telephone conversa- f w o Fba I I wl b c dipst. tion occurred on or about January 7. Gottfried saw his f o r w o r k o n he as li ib w t l o be considered dispositive personal physician in Casper on January 30, and received o f ^en ^ was eligible to return to work. and his failure another treatment which was apparently an injection, de- to d o so w ill be construed as an affirmative showing of scribed as gold salts therapy, and was told he was re- support for the strike. Respondent admitted that it never spending well to the treatment. His physician informed inquired if Gottfried supported the strike. him that he could return to work when he "felt like it."' Shortly after the strike commenced, Gottfried again 2. Michael L. Wergin tried to contact Chaney telephonically to tell him about Wergin, a union member, commenced employment the in.-Iical treatment, but was unsuccessful. Gottfried with Texaco in 1971. On or about the evening of Janu- decided that, because of the strike, there was no use in ary 6, he went on sick leave because he injured a knee. continuing his attempts to contact Chaney; he did not He underwent knee surgery. On or about February 7,8 think it was necessary until he had received sufficient in- he was released by his doctor. Approximately 2 weeks formation from his own physician to relate to the Com- , h commenced picketing. Wergin received sickness pany a more definitive indication of his medical status. and d p fo t . p p e th Gottfried received payments for sickness and disability a n d d c sa b m l e t y pment f o r t h e psrewi Preceding the under the plan administered by Respondent until January coanuary of H e strive any tents on 8, when all payments terminated. Gottfried did not pro- Ja^ 8. He did not receive any payments for the test to Texaco when his accident and sickness benefits period subsequent to the commencement of the strike. were terminated in January at the commencement of the Wergin admitted that he did not report to work after he strike because he did not think it would do any good. w a s released from the doctor because he decided to Gottfried also did not attempt to make any reports after ho"or the picket line and to support the strike. He did his unsuccessful attempt to call Chaney. Gottfried's fail- "ot report his release for work to the Company at the ure to report was done with the admitted knowledge time received because of the strike and his decision to that the Company had an absentee policy but he does participate therein.' not interpret that policy as requiring day-to-day report- Wergin began picketing on or about February 21 and ing while an employee is on sick leave. During the week he continued to picket for the duration of the strike of February 11, Gottfried felt well enough to take part in whenever his turn came up in the picketing rotation. the strike and he commenced picketing. The picketing Also during the strike, Wergin found a regular job, was engaged in pursuant to his doctor's instructions, who which he currently holds, at Anexter Mine Supply. The told him to go back to work or to assume picket duty date he started working for Anexter Mine Supply is not when he felt like it. As soon as Gottfried felt well a matter of record. There is no indication that he was enough to go back to work, he actively supported the ready to work immediately after his release on or about strike, feeling it was an obligation. Gottfried testified that February 7 or prior to his commencement of picketing he conscientiously could never cross a picket line, he on or about February 21. Accordingly, his change of em- would have to show some support for the strike. Gott- ployment to Anexter Mine Supply is not found to dem- fried has never crossed a picket line. onstrate overt support for the strike prior to February 21 Respondent, in its brief, argues that there was no sig- w actively began to picket nificant difference in Gottfried's arthritic condition from the time he went on vacation to his return to Wyoming on January 8, and, therefore, he should be considered ready to return to work and not eligible for accident and The witness stated it was either February 7 or 10 that he was re- leased by his doctor. 'Gottfried had informed the Company on the day of the strike, when ' Wergin is one of the Charging Parties. He signed a charge that was he returned from California, that he had to have an appointment with his prepared for him, apparently by some union personnel. These facts are own doctor to undergo the treatment recommended by the specialist in inadequate to support a finding that the filing of the charge by Wergin or California. There was no indication as to why the appointment was held any other individual was in contravention of the strike settlement agree- several weeks after his return, whether it was pursuant to doctor's ment which the Union executed and contained a provision for withdraw- instructions or caused by other factors. Respondent seeks to infer that the al of all unfair labor practice charges by the Union. There was no show- delay was occasioned by Gottfried's assumption that he was on strike and ing that the Union did not withdraw all charges it previously filed, pursu- there was no need to rush until the strike was over. This inference is in- ant to the agreement, or that any of its activities on behalf of Wergin supportable because there was no evidence to indicate that Gottfried were not consonant with its duties of fair representation to its members knew that the strike would last until January 30. or were in contravention of the strike settlement agreement. TEXACO OIL COMPANY 411 formed him he would be unable to finish the prescribed sickness pay. This argument is considered to be without course of treatment within the allotted vacation time and merit. Respondent unrefutedly paid Gottfried accident would have to be placed on sick leave, which was per- and sickness benefits until the strike commenced. The ob- mitted by the Company. Gottfried remained in California ligations to ascertain Gottfried's ability to return to work receiving the treatments prescribed by the rheumatolo- and his willingness to do so remained the same, and it gist until January 6 or 7, when he returned to Casper cannot now be argued that he never qualified for acci- and resumed treatments under his own physician. Upon dent and sickness payments if Respondent had never pre- his return to Casper, he telephoned the Company and viously questioned the propriety of his receiving such asked to speak to Chaney, who was unavailable; there- benefits, as demonstrated by its willingness to pay acci- fore, he spoke to a Mr. Mathis and informed him that he dent and sickness payments until the strike commenced. was going to consult his local physician prior to return- Accordingly, Gottfried's testimony that he was available ing to work. Gottfried believes the telephone conversa- f w o Fba I I wl b c dipst. tion occurred on or about January 7. Gottfried saw his f o r w o r k o n he b wsei ib w t l o be considered dispositive personal physician in Casper on January 30, and received o f ^en ^ was eligible to return to work. and his failure another treatment which was apparently an injection, de- to d o so w ill be construed as an affirmative showing of scribed as gold salts therapy, and was told he was re- support for the strike. Respondent admitted that it never spending well to the treatment. His physician informed inquired if Gottfried supported the strike. him that he could return to work when he "felt like it."' Shortly after the strike commenced, Gottfried again 2. Michael L. Wergin tried to contact Chaney telephonically to tell him about Wergin, a union member, commenced employment the in.-Iical treatment, but was unsuccessful. Gottfried with Texaco in 1971. On or about the evening of Janu- decided that, because of the strike, there was no use in ary 6, he went on sick leave because he injured a knee. continuing his attempts to contact Chaney; he did not He underwent knee surgery. On or about February 7,8 think it was necessary until he had received sufficient in- he was released by his doctor. Approximately 2 weeks formation from his own physician to relate to the Com- , h commenced picketing. Wergin received sickness pany a more definitive indication of his medical status. and d p fo t . p p e th Gottfried received payments for sickness and disability a n d c eblety Payments for the period preceding the under the plan administered by Respondent until January coanuary of H e strive any tents on 8, when all payments terminated. Gottfried did not pro- Ja^ 8 . He did not receive any payments for the test to Texaco when his accident and sickness benefits period subsequent to the commencement of the strike. were terminated in January at the commencement of the Wergin admitted that he did not report to work after he strike because he did not think it would do any good. w a s released from the doctor because he decided to Gottfried also did not attempt to make any reports after ho"or the picket line and to support the strike. He did his unsuccessful attempt to call Chaney. Gottfried's fail- "ot report his release for work to the Company at the ure to report was done with the admitted knowledge time received because of the strike and his decision to that the Company had an absentee policy but he does participate therein.' not interpret that policy as requiring day-to-day report- Wergin began picketing on or about February 21 and ing while an employee is on sick leave. During the week he continued to picket for the duration of the strike of February 11, Gottfried felt well enough to take part in whenever his turn came up in the picketing rotation. the strike and he commenced picketing. The picketing Also during the strike, Wergin found a regular job, was engaged in pursuant to his doctor's instructions, who which he currently holds, at Anexter Mine Supply. The told him to go back to work or to assume picket duty date he started working for Anexter Mine Supply is not when he felt like it. As soon as Gottfried felt well a matter of record. There is no indication that he was enough to go back to work, he actively supported the ready to work immediately after his release on or about strike, feeling it was an obligation. Gottfried testified that February 7 or prior to his commencement of picketing he conscientiously could never cross a picket line, he on or about February 21. Accordingly, his change of em- would have to show some support for the strike. Gott- ployment to Anexter Mine Supply is not found to dem- fried has never crossed a picket line. onstrate overt support for the strike prior to February 21 Respondent, in its brief, argues that there was no sig- w actively began to picket nificant difference in Gottfried's arthritic condition from the time he went on vacation to his return to Wyoming on January 8, and, therefore, he should be considered ready to return to work and not eligible for accident and The witness stated it was either February 7 or 10 that he was re- leased by his doctor. 'Gottfried had informed the Company on the day of the strike, when ' Wergin is one of the Charging Parties. He signed a charge that was he returned from California, that he had to have an appointment with his prepared for him, apparently by some union personnel. These facts are own doctor to undergo the treatment recommended by the specialist in inadequate to support a finding that the filing of the charge by Wergin or California. There was no indication as to why the appointment was held any other individual was in contravention of the strike settlement agree- several weeks after his return, whether it was pursuant to doctor's ment which the Union executed and contained a provision for withdraw- instructions or caused by other factors. Respondent seeks to infer that the al of all unfair labor practice charges by the Union. There was no show- delay was occasioned by Gottfried's assumption that he was on strike and ing that the Union did not withdraw all charges it previously filed, pursu- there was no need to rush until the strike was over. This inference is in- ant to the agreement, or that any of its activities on behalf of Wergin supportable because there was no evidence to indicate that Gottfried were not consonant with its duties of fair representation to its members knew that the strike would last until January 30. or were in contravention of the strike settlement agreement. TEXACO OIL COMPANY 411 formed him he would be unable to finish the prescribed sickness pay. This argument is considered to be without course of treatment within the allotted vacation time and merit. Respondent unrefutedly paid Gottfried accident would have to be placed on sick leave, which was per- and sickness benefits until the strike commenced. The ob- mitted by the Company. Gottfried remained in California ligations to ascertain Gottfried's ability to return to work receiving the treatments prescribed by the rheumatolo- and his willingness to do so remained the same, and it gist until January 6 or 7, when he returned to Casper cannot now be argued that he never qualified for acci- and resumed treatments under his own physician. Upon dent and sickness payments if Respondent had never pre- his return to Casper, he telephoned the Company and viously questioned the propriety of his receiving such asked to speak to Chaney, who was unavailable; there- benefits, as demonstrated by its willingness to pay acci- fore, he spoke to a Mr. Mathis and informed him that he dent and sickness payments until the strike commenced. was going to consult his local physician prior to return- Accordingly, Gottfried's testimony that he was available ing to work. Gottfried believes the telephone conversa- f w o Fba I I wl b c dipst. tion occurred on or about January 7. Gottfried saw his f o r w o r k o n hw baseii l 1 w t l o b e considered dispositive personal physician in Casper on January 30, and received o f ^en ^ was eligible to return to work. and his failure another treatment which was apparently an injection, de- to d o so w ill be construed as an affirmative showing of scribed as gold salts therapy, and was told he was re- support for the strike. Respondent admitted that it never spending well to the treatment. His physician informed inquired if Gottfried supported the strike. him that he could return to work when he "felt like it."' Shortly after the strike commenced, Gottfried again 2. Michael L. Wergin tried to contact Chaney telephonically to tell him about Wergin, a union member, commenced employment the in.-Iical treatment, but was unsuccessful. Gottfried with Texaco in 1971. On or about the evening of Janu- decided that, because of the strike, there was no use in ary 6, he went on sick leave because he injured a knee. continuing his attempts to contact Chaney; he did not He underwent knee surgery. On or about February 7,8 think it was necessary until he had received sufficient in- he was released by his doctor. Approximately 2 weeks formation from his own physician to relate to the Com- , h commenced picketing. Wergin received sickness pany a more definitive indication of his medical status. and d p fo t . p p e th Gottfried received payments for sickness and disability a n d c eblety Payments for the period preceding the under the plan administered by Respondent until January coanuary of H e strive any tents on 8, when all payments terminated. Gottfried did not pro- Ja^ 8. He did not receive any payments for the test to Texaco when his accident and sickness benefits period subsequent to the commencement of the strike. were terminated in January at the commencement of the Wergin admitted that he did not report to work after he strike because he did not think it would do any good. w a s released from the doctor because he decided to Gottfried also did not attempt to make any reports after ho"or the picket line and to support the strike. He did his unsuccessful attempt to call Chaney. Gottfried's fail- "ot report his release for work to the Company at the ure to report was done with the admitted knowledge time received because of the strike and his decision to that the Company had an absentee policy but he does participate therein.' not interpret that policy as requiring day-to-day report- Wergin began picketing on or about February 21 and ing while an employee is on sick leave. During the week he continued to picket for the duration of the strike of February 11, Gottfried felt well enough to take part in whenever his turn came up in the picketing rotation. the strike and he commenced picketing. The picketing Also during the strike, Wergin found a regular job, was engaged in pursuant to his doctor's instructions, who which he currently holds, at Anexter Mine Supply. The told him to go back to work or to assume picket duty date he started working for Anexter Mine Supply is not when he felt like it. As soon as Gottfried felt well a matter of record. There is no indication that he was enough to go back to work, he actively supported the ready to work immediately after his release on or about strike, feeling it was an obligation. Gottfried testified that February 7 or prior to his commencement of picketing he conscientiously could never cross a picket line, he on or about February 21. Accordingly, his change of em- would have to show some support for the strike. Gott- ployment to Anexter Mine Supply is not found to dem- fried has never crossed a picket line. onstrate overt support for the strike prior to February 21 Respondent, in its brief, argues that there was no sig- w actively began to picket nificant difference in Gottfried's arthritic condition from the time he went on vacation to his return to Wyoming on January 8, and, therefore, he should be considered ready to return to work and not eligible for accident and The witness stated it was either February 7 or 10 that he was re- leased by his doctor. 'Gottfried had informed the Company on the day of the strike, when ' Wergin is one of the Charging Parties. He signed a charge that was he returned from California, that he had to have an appointment with his prepared for him, apparently by some union personnel. These facts are own doctor to undergo the treatment recommended by the specialist in inadequate to support a finding that the filing of the charge by Wergin or California. There was no indication as to why the appointment was held any other individual was in contravention of the strike settlement agree- several weeks after his return, whether it was pursuant to doctor's ment which the Union executed and contained a provision for withdraw- instructions or caused by other factors. Respondent seeks to infer that the al of all unfair labor practice charges by the Union. There was no show- delay was occasioned by Gottfried's assumption that he was on strike and ing that the Union did not withdraw all charges it previously filed, pursu- there was no need to rush until the strike was over. This inference is in- ant to the agreement, or that any of its activities on behalf of Wergin supportable because there was no evidence to indicate that Gottfried were not consonant with its duties of fair representation to its members knew that the strike would last until January 30. or were in contravention of the strike settlement agreement. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. William B. Noell recorded his reporting of the release for work, and all Noell, a current employee of Texaco, has been an em- failed to demonstrate the extent of any entitlement to ac- ployee of Respondent for 34 years. Noell, a union cident and sickness benefits subsequent to January 8, it is member, underwent an operation in November, the re- concluded that his entitlement to such benefits after Jan- sults of which led to the determination that he had uary 8, if any, should be determined at the compliance cancer and he underwent therapy for that illness. The stage of these proceedings. doctor released him to return to work on March 24; however, he never joined the picketing or even visited James Lake the picket line on the advice of his doctor who informed Lake, a union member, was placed on sick leave some- him that he should concentrate on his serious illness and time in the latter part of December due to low back stay away from the strike and the plant until she advised pain. He was being treated by the Company's doctor. differently. He was never requested by the Union to The treatment consisted of some unspecified sound treat- picket. He did receive strike benefits as did all the other ments at the Company's facility in Casper, Wyoming, employees, including those discussed herein. He did not plus following the doctor's directions, which included report for work when he was released because he decid- staying at home and using a heating pad until he felt like ed to honor the picket line and support the strike. Noell working. He received accident and sickness benefits until has supported every strike that occurred at Respondent January 8 when they stopped. Lake was not notified by since his employment in 1950. the Company that the benefits would be terminated During the course of his illness andthe treatment pre- when the strike commenced. After January 8, he was not scribed therefor, Noell kept in contact with the Compa- released by the doctor. When the strike commenced, he ny's nurse, Wareen Pierce. Sometimes the nurse called t him and sometimes he called the nurse. He believes the did not go to the plant to continue the treatments, and he contact was more or less out of her friendship with him. dd not cal the nurse who was administering the treat- Respondent contends that the calls were made consonant ments prior to the strike or any other individual at Re- with the Company's policy of keeping them informed of spondents facility. Lake stated he stopped going in for an employee's medical condition during his disability, treatments because he did not want to cross the picket Respondent argues that the obligation to keep the Com- line. He did not inform the Company of his decision nor pany informed remains in effect during the strike and did h e see k approval from the Union to cross the picket that an individual employee's failure to abide by that ob- line to continue receiving treatments. The Company ligation was arguably an indicia of support for the strike. never called Lake to ask if he supported the strike. Lake This argument will be considered hereinafter. The Com- stated that, if he made any assumptions about the Com- pany never inquired if Noell did support the strike. pany's attitude, it was that they did not care what he did if he were on strike. Accordingly, he just stayed home 4. John Vin with his heating pad and did not seek treatment else- where because he did not consult another doctor who Vin, a union member, was also a long-term employee w h e r e b e c a u s e h e d id n o t c o n s u l t a n o t h e r d o c t o r w h o of Texaco, commencing his employment in September could direct him to a place where he could continue the of Texaco, commencing his employment in September 1950. On January 8, he was on sick leave. Initially, his treatments. illness was the flu, but when he went to the doctor they Lake opined that he could have returned to work found that he needed a cataract operation which was sometime after January 20. He began picketing sometime performed on December 13, 1979. He was still on sick after January 20. Prior to January 20, sometime shortly leave on January 8. He was able to go back to work after the strike commenced, he did stop by the picket sometime after January 8, but did not return to his job line in his car. He does not recall, though, if he got out because of the strike. When he was released by his of his car; he thinks he probably did. He did not carry a doctor sometime in the latter part of January to return to picket sign, but he did talk to several of the picketers. He work, he commenced picketing. He telephoned the believes that the visit was approximately a week before nurse, since he could not cross the picket line, to inform January 20, which would be about January 13. Lake did the Company that he had been released by his doctor receive the $150 check as part of the strike settlement as and could return to work. He does not recall when he did all the other employees involved herein. called the nurse. 10 It is concluded that Lake's failure to continue seeking Inasmuch as Vin and counsel for the General Counsel treatment by refusing to cross the picket line cojoined had the most appropriate access to Vin's medical re- with his appearance at the picket line on or about Janu- cords, and the Company had records which may have ary 13, where he stood, he believes, outside his vehicle and talked with some of the picketers, constituted public '° The witness was confused as to the exact time the release was ob- support of the strike activities, and constituted, as of Jan- tained, testifying initially that there was a release sometime around De- uary 13, a manifestation of public support for the strike cember 18, 1979, but since the cataract operation was December 13, 1979, and he stated he was released from the hospital December 16, 1979, it sufficient to disqualify him from receipt of accident and appears unlikely that he was ready to return to work on December 18, sickness benefits after January 13. It is therefore conclud- 1979, and failed to do so. Inasmuch as Respondent filled out documents ed that Lake is entitled to receipt of accident and sick- indicating that accident and sickness benefits were due and owing ns bnis h w o i i f n through January 8, it is concluded that the witness' later testimony that n es s b en efi t s h e w o ul d therwise receive from January 8 the doctor approved his return to work sometime in the latter part of through January 13, had it not been for the activities of January when he commenced picketing is most probably accurate. other unit employees. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. William B. Noell recorded his reporting of the release for work, and all Noell, a current employee of Texaco, has been an em- failed t o demonstrate the extent of any entitlement to ac- ployee of Respondent for 34 years. Noell, a union cident and sickness benefits subsequent to January 8, it is member, underwent an operation in November, the re- concluded that his entitlement to such benefits after Jan- sults of which led to the determination that he had uary 8, if any, sho u ld be determined at the compliance cancer and he underwent therapy for that illness. The Stage of these proceedings. doctor released him to return to work on March 24; i J T Lk however, he never joined the picketing or even visited the picket line on the advice of his doctor who informed Lake, a union member, was placed on sick leave some- him that he should concentrate on his serious illness and time in the latter part of December due to low back stay away from the strike and the plant until she advised pain. He was being treated by the Company's doctor. differently. He was never requested by the Union to The treatment consisted of some unspecified sound treat- picket. He did receive strike benefits as did all the other ments at the Company's facility in Casper, Wyoming, employees, including those discussed herein. He did not plus following the doctor's directions, which included report for work when he was released because he decid- staying at home and using a heating pad until he felt like ed to honor the picket line and support the strike. Noell working. He received accident and sickness benefits until has supported every strike that occurred at Respondent January 8 when they stopped. Lake was not notified by since his employment in 1950. the Company that the benefits would be terminated During t h e co u rs e o f his ill n ess a nd t h e tr eat m en t pre- when the strike commenced. After January 8, he was not scribed therefor, Noell kept in contact with the Compa- released by the doctor. When the strike commenced, he ny's nurse, Wareen Pierce. Sometimes the nurse called di dn y the do tto W te the treatmenced he him and sometimes he called the nurse. He believes the did n o t g oa l o t h e pnurs to continue the treatments and he contact was more or less out of her friendship with him. n t pit the strse o as adrinivina t re- Respondent contends that the calls were made consonant sm en t s pt'sfacili st yL k e o r any other individual at Re- with the Company's policy of keeping them informed of tspondent s facility. Lake stated he stopped going in for an employee's medical condition during his disabilitytreatments because he did not want to cross the picket Respondent argues that the obligation to keep the Com- lin e. H e d id no t in fo rm the Company of his decision nor pany informed remains in effect during the strike and did he seek approval from the Union to cross the picket that an individual employee's failure to abide by that ob- lin e t o continue receiving treatments. The Company ligation was arguably an indicia of support for the strike. ne v er called Lake to ask if he supported the strike. Lake This argument will be considered hereinafter. The Com- stated that, if he made any assumptions about the Com- pany never inquired if Noell did support the strike. pany's attitude, it was that they did not care what he did if he were on strike. Accordingly, he just stayed home 4. John Vin with his heating pad and did not seek treatment else- Vin, a union member, was also a long-term employee w h er e b ec a us e h e d id no t consult another doctor who of Texaco, commencing his employment in September co u ld d ir ec t him t o a p l ace w he re h e c o u ld co n tin ue t h e 1950. On January 8, he was on sick leave. Initially, his treatments. illness was the flu, but when he went to the doctor they L ak e opined t h at he could have returned to work found that he needed a cataract operation which was sometime after January 20. He began picketing sometime performed on December 13, 1979. He was still on sick after January 20. Prior to January 20, sometime shortly leave on January 8. He was able to go back to work after the strike commenced, he did stop by the picket sometime after January 8, but did not return to his job li ne i n his car. He does not recall, though, if he got out because of the strike. When he was released by his o f his car; he thinks he probably did. He did not carry a doctor sometime in the latter part of January to return to picket sign, but he did talk to several of the picketers. He work, he commenced picketing. He telephoned the believes that the visit was approximately a week before nurse, since he could not cross the picket line, to inform January 20, which would be about January 13. Lake did the Company that he had been released by his doctor receive the $150 check as part of the strike settlement as and could return to work. He does not recall when he d id all the other employees involved herein. called the nurse. 10 It is concluded that Lake's failure to continue seeking Inasmuch as Vin and counsel for the General Counsel treatment by refusing to cross the picket line cojoined had the most appropriate access to Vin's medical re- with his appearance at the picket line on or about Janu- cords, and the Company had records which may have ary 13, where he stood, he believes, outside his vehicle and talked with some of the picketers, constituted public ' The witness was confused as to the exact time the release was ob- support of the Strike activities, and constituted, as of Jan- tained, testifying initially that there was a release sometime around De- uary 13, a manifestation of public support for the strike cember 18, 1979, but since the cataract operation was December 13, 1979, and he stated he was released from the hospital December 16, 1979, it sufficient to disqualify him from receipt of accident and appears unlikely that he was ready to return to work on December 18, sickness benefits after January 13. It is therefore conclud- 1979, and failed to do so. Inasmuch as Respondent filled out documents ed that Lake is entitled to receipt of accident and sick- indicating that accident and sickness benefits were due and owing „„„„ ien^«(;» he .. ^.d *i, * * r r o through January 8, it is concluded that the witness' later testimony that n es s b en efi t s he would Otherwise receive from January 8 the doctor approved his return to work sometime in the latter part of through January 13, had It not been for the activities of January when he commenced picketing is most probably accurate. other unit employees. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. William B. Noell recorded his reporting of the release for work, and all Noell, a current employee of Texaco, has been an em- f ailed t o demonstrate the extent of any entitlement to ac- ployee of Respondent for 34 years. Noell, a union cident and sickness benefits subsequent to January 8, it is member, underwent an operation in November, the re- concluded that his entitlement to such benefits after Jan- sults of which led to the determination that he had uary 8, if any, should be determined at the compliance cancer and he underwent therapy for that illness. The stage of these proceedings. doctor released him to return to work on March 24; i J T Lk however, he never joined the picketing or even visited the picket line on the advice of his doctor who informed Lake, a union member, was placed on sick leave some- him that he should concentrate on his serious illness and time in the latter part of December due to low back stay away from the strike and the plant until she advised pain. He was being treated by the Company's doctor. differently. He was never requested by the Union to The treatment consisted of some unspecified sound treat- picket. He did receive strike benefits as did all the other ments at the Company's facility in Casper, Wyoming, employees, including those discussed herein. He did not plus following the doctor's directions, which included report for work when he was released because he decid- staying at home and using a heating pad until he felt like ed to honor the picket line and support the strike. Noell working. He received accident and sickness benefits until has supported every strike that occurred at Respondent January 8 when they stopped. Lake was not notified by since his employment in 1950. the Company that the benefits would be terminated During t h e c o u r s e o f his ill n ess a nd t h e tr eat m en t pre- when the strike commenced. After January 8, he was not scribed therefor, Noell kept in contact with the Compa- released by the doctor. When the strike commenced, he ny's nurse, Wareen Pierce. Sometimes the nurse called di dn y the do tto W te the treatmenced he him and sometimes he called the nurse. He believes the did n o t g oa l o t h e pnurs to continue the treatments and he contact was more or less out of her friendship with him. n t pit the strse o as adrinivina t re- Respondent contends that the calls were made consonant sm en t s pt'sfacili st yL k e o r any other individual at Re- with the Company's policy of keeping them informed of tspondent s facility. Lake stated he stopped going in for an employee's medical condition during his disabilitytreatments because he did not want to cross the picket Respondent argues that the obligation to keep the Com- li n e. H e d id no t in f o rm the Company of his decision nor pany informed remains in effect during the strike and did he seek approval from the Union to cross the picket that an individual employee's failure to abide by that ob- lin e t o continue receiving treatments. The Company ligation was arguably an indicia of support for the strike. ne v er called Lake to ask if he supported the strike. Lake This argument will be considered hereinafter. The Com- stated that, if he made any assumptions about the Com- pany never inquired if Noell did support the strike. pany's attitude, it was that they did not care what he did if he were on strike. Accordingly, he just stayed home 4. John Vin with his heating pad and did not seek treatment else- Vin, a union member, was also a long-term employee w h er e b ec a us e h e d id no t consult another doctor who of Texaco, commencing his employment in September co u ld d ir ec t him t o a p l ace w he re h e c o u ld co n tin ue t h e 1950. On January 8, he was on sick leave. Initially, his treatments. illness was the flu, but when he went to the doctor they L ak e opined t h at he could have returned to work found that he needed a cataract operation which was sometime after January 20. He began picketing sometime performed on December 13, 1979. He was still on sick after January 20. Prior to January 20, sometime shortly leave on January 8. He was able to go back to work after the strike commenced, he did stop by the picket sometime after January 8, but did not return to his job li ne i n his car. He does not recall, though, if he got out because of the strike. When he was released by his o f his car; he thinks he probably did. He did not carry a doctor sometime in the latter part of January to return to picket sign, but he did talk to several of the picketers. He work, he commenced picketing. He telephoned the believes that the visit was approximately a week before nurse, since he could not cross the picket line, to inform January 20, which would be about January 13. Lake did the Company that he had been released by his doctor receive the $150 check as part of the strike settlement as and could return to work. He does not recall when he d id all the other employees involved herein. called the nurse. 10 It is concluded that Lake's failure to continue seeking Inasmuch as Vin and counsel for the General Counsel treatment by refusing to cross the picket line cojoined had the most appropriate access to Vin's medical re- with his appearance at the picket line on or about Janu- cords, and the Company had records which may have ary 13, where he stood, he believes, outside his vehicle and talked with some of the picketers, constituted public ' The witness was confused as to the exact time the release was ob- support of the Strike activities, and constituted, as of Jan- tained, testifying initially that ther e was a release sometime ar ound De- uary 13, a manifestation of public support for the strike cember 18, 1979, but since the cataract operation was December 13, 1979, and he stated he was released from the hospital December 16, 1979, it sufficient to disqualify him from receipt of accident and appears unlikely that he was ready to return to work on December 18, sickness benefits after January 13. It is therefore conclud- 1979, and failed to do so. Inasmuch as Respondent filled out documents ed that Lake is entitled to receipt of accident and sick- indicating that accident and sickness benefits were due and owing ne„„ i--.,ts he .. ^.d *i, * * r r o through January 8, it is concluded that the witness' later testimony that n es s b en efi t s he would Otherwise receive from January 8 the doctor approved his return to work sometime in the latter part of through January 13, had It not been for the activities of January when he commenced picketing is most probably accurate. other unit employees. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. William B. Noell recorded his reporting of the release for work, and all Noell, a current employee of Texaco, has been an em- failed t o demonstrate the extent of any entitlement to ac- ployee of Respondent for 34 years. Noell, a union cident and sickness benefits subsequent to January 8, it is member, underwent an operation in November, the re- concluded that his entitlement to such benefits after Jan- sults of which led to the determination that he had uary 8, if any, should be determined at the compliance cancer and he underwent therapy for that illness. The stage of these proceedings. doctor released him to return to work on March 24; i J T Lk however, he never joined the picketing or even visited the picket line on the advice of his doctor who informed Lake, a union member, was placed on sick leave some- him that he should concentrate on his serious illness and time in the latter part of December due to low back stay away from the strike and the plant until she advised pain. He was being treated by the Company's doctor. differently. He was never requested by the Union to The treatment consisted of some unspecified sound treat- picket. He did receive strike benefits as did all the other ments at the Company's facility in Casper, Wyoming, employees, including those discussed herein. He did not plus following the doctor's directions, which included report for work when he was released because he decid- staying at home and using a heating pad until he felt like ed to honor the picket line and support the strike. Noell working. He received accident and sickness benefits until has supported every strike that occurred at Respondent January 8 when they stopped. Lake was not notified by since his employment in 1950. the Company that the benefits would be terminated During t h e co u rs e o f his ill n ess a nd t h e treatment pre- when the strike commenced. After January 8, he was not scribed therefor, Noell kept in contact with the Compa- released by the doctor. When the strike commenced, he ny's nurse, Wareen Pierce. Sometimes the nurse called di d by the do tto W te the treatmenced he him and sometimes he called the nurse. He believes the did n o t g oa l o t h e pnurs to continue the treatments and he contact was more or less out of her friendship with him. n t pit the strse o as adrinivina t re- Respondent contends that the calls were made consonant sm en t s pt'sfacili st yL k e o r any other individual at Re- with the Company's policy of keeping them informed of tspondent s facility. Lake stated he stopped going in for an employee's medical condition during his disabilitytreatments because he did not want to cross the picket Respondent argues that the obligation to keep the Com- lin e. H e d id no t in fo rm the Company of his decision nor pany informed remains in effect during the strike and did he seek approval from the Union to cross the picket that an individual employee's failure to abide by that ob- li"ne to continue receiving treatments. The Company ligation was arguably an indicia of support for the strike. ne v er called Lake to ask if he supported the strike. Lake This argument will be considered hereinafter. The Com- stated that, if he made any assumptions about the Com- pany never inquired if Noell did support the strike. pany's attitude, it was that they did not care what he did if he were on strike. Accordingly, he just stayed home 4. John Vin with his heating pad and did not seek treatment else- Vin, a union member, was also a long-term employee w h er e b ec a us e h e d id no t consult another doctor who of Texaco, commencing his employment in September co u ld d ir ec t him t o a p l ace w he re h e c o u ld co n tin ue t h e 1950. On January 8, he was on sick leave. Initially, his treatments. illness was the flu, but when he went to the doctor they L ak e opined t h at he could have returned to work found that he needed a cataract operation which was sometime after January 20. He began picketing sometime performed on December 13, 1979. He was still on sick after January 20. Prior to January 20, sometime shortly leave on January 8. He was able to go back to work after the strike commenced, he did stop by the picket sometime after January 8, but did not return to his job li ne in his car. He does not recall, though, if he got out because of the strike. When he was released by his o f his car; he thinks he probably did. He did not carry a doctor sometime in the latter part of January to return to picket sign, but he did talk to several of the picketers. He work, he commenced picketing. He telephoned the believes that the visit was approximately a week before nurse, since he could not cross the picket line, to inform January 20, which would be about January 13. Lake did the Company that he had been released by his doctor receive the $150 check as part of the strike settlement as and could return to work. He does not recall when he d id all the other employees involved herein. called the nurse. 10 It is concluded that Lake's failure to continue seeking Inasmuch as Vin and counsel for the General Counsel treatment by refusing to cross the picket line cojoined had the most appropriate access to Vin's medical re- with his appearance at the picket line on or about Janu- cords, and the Company had records which may have ary 13, where he stood, he believes, outside his vehicle and talked with some of the picketers, constituted public ' The witness was confused as to the exact time the release was ob- support of the Strike activities, and constituted, as of Jan- tained, testifying initially that there was a release sometime around De- uary 13, a manifestation of public support for the strike cember 18, 1979, but since the cataract operation was December 13, 1979, and he stated he was released from the hospital December 16, 1979, it sufficient to disqualify him from receipt of accident and appears unlikely that he was ready to return to work on December 18, sickness benefits after January 13. It is therefore conclud- 1979, and failed to do so. Inasmuch as Respondent filled out documents ed that Lake is entitled to receipt of accident and sick- indicating that accident and sickness benefits were due and owing ne„„ i--.,ts he .. ^.d *i, * * r r o through January 8, it is concluded that the witness' later testimony that n es s b en efi t s he would Otherwise receive from January 8 the doctor approved his return to work sometime in the latter part of through January 13, had It not been for the activities of January when he commenced picketing is most probably accurate. other unit employees. TEXACO OIL COMPANY 413 6. Robert G. Ravert record that Ravert was released to return to work was dated March 24, and it is found that entitlement to acci- Ravert had worked for the Company approximately 13-1/2 years and had been a union member for the entire 13-1/2 years and had been a union member for the entire dent and sickness benefits terminated on March 24, 1980. duration of his employment by Respondent. On Novem- Ravert, like Wergin, also filed a charge concerning his ber 3, he was involved in an accident away from work loss of accident and sickness benefits. Ravert stated that where he suffered three broken ribs and a fractured he felt that he should have been paid his premiums and shoulder blade. Accident and sickness benefits were paid was inquiring about the propriety of the termination of by Respondent from November 3 through January 8, such benefits. One of the individuals he talked to was 1980. Since January 2 or 3, he was receiving treatments Ralph W. Newman, chairman of the workmen's commit- almost daily thereafter from the nurse at Respondent's tee for the Local of the Union. As was the case with facility, until January 8, when the strike commenced. He Wergin, there was no clear showing that the Union re- did receive a treatment on January 8 and noted that the cruited Ravert or otherwise acted improperly so as to strike had begun when he was leaving the premises after abrogate any of the employees' rights to seek redress receiving the treatment. through the instant proceeding. In fact, Newman credi- Ravert requested permission from the Union to contin- bly testified, that during the negotiations of the strike set- ue receiving the treatments from Respondent, and the tlement, the Union stated that it was willing to withdraw Union granted his request. When Ravert went to Re- the charges alleging unfair labor practices by Respondent spondent's facility to continue receiving treatments, a ga- for failure to pay accident and sickness benefits, but teman and guard stopped him, telephoned someone at stated that they would continue to assist the membership the facility, and refused to permit him to enter, This re- if they wished to file charges alleging violation of the fusal on the part of Respondent's employees to permit Act for Respondent's failure to pay them their accident Ravert to enter for a continuation of treatment requires and sickness benefits." that his termination of treatments during the strike be The strike settlement agreement executed March 29, considered differently from Lake's actions, where he 1980, between Respondent and the Union states as fol- never attempted to continue treatments and was not lows: denied access to the facility. Ravert did visit the picket line once, at an unspecified It is further understood that: (1) Each party will date, but it was not shown that he got out of the car or dismiss any and all litigation now pending against in any way demonstrated public support for the strike. the other or its agents, i.e., injunctions, damage Ravert was continuing medical treatment sometime suits, etc. (including arbitrations, unfair labor prac- after the strike commenced from a Dr. Roussalis, who tice charges, lawsuits and grievances related to any gave him a return to work release dated March 24, 1980. of the benefit plans); (2) that such dismissal will be The reason the release to return to work was obtained at each party's own cost; and (3) that it is agreed that day was that Ravert's wife had an appointment with that no new litigation growing out of or related to the doctor on that day, so he went along to obtain the the strike will be filed. release. He was unclear whether it was given to Re- spondent at any time thereafter. Ravert did not partici- The strike settlement agreement further provides, pate in the picketing before or after March 24, 1980. It under the section entitled "Accident and Sickness Bene- was stipulated that Ravert's personnel file contained two fits": payroll authorization forms for leaves of absence and separation. The first form was dated December 14, 1979, It is understood that employees who are unable to and indicated that he was granted full accident and sick- report to work due to sickness or accident which ness benefits from November through December 31, commenced after the strike began will be eligible 1979, with the date of return to work unknown. The second payroll authorization form, dated January ' A memorandum memorializing the negotiation meeting for strike set- 17, stated, "[C]ontinue full accident and sickness benefits tlement dated March 24, 1980, states as follows: from 1-1-80 through 3:00 p.m. 1-8-80; employee on The Union stated that they cannot bargain away an employee's indi- vidual rights for a $150 lump-sum payment. If an employee, on an strike at 3:00 p.m., 1-8-80," and "date of return to work individual basis, wished to file an NLRB charge or grievance on the unknown." The record is unclear as to whether Ravert A & s benefits lost during the work stoppage, would an employee remained physically disabled from working during the have the right to do so? Management advised the Union that any duration of the strike. However, the personnel records employee on an individual basis could do so by law. It must be pointed out, however, that the Company would take a dim view of clearly demonstrate that his benefits were terminated be- our bargaining relationship if any faction of the Union, local or inter- cause of the strike activities of other employees. It is also national, were involved in such a complaint after the culmination of clear that Respondent at no time throughout the duration an agreement. Management would want this understood before any of the strike inquired when Ravert would be able to agreement is reached Upon signing the agreement, the Union would be precluded from representation in any form or manner. return to his duties and refrained from making such a de- Newman stated that the Union was not representing these people, but termination and did not state any reasons for its failure to was assisting them and that Newman was at the hearing on his own and do so. The failure of Respondent to permit Ravert on the not as a union representative. As the memorandum indicates, the individ- premises to continue treatments precluded by its own ac- ual employees retain the right to file charges which they have done so in tions the Company from having a fair assessment by its this proceeding, and the evidence does not adequately show that there was any basis for making a finding as to whether the Union did or did own medical staff as to when Ravert would be ready to not abide by the strike settlement agreement as reflected in the memoran- return to work. Accordingly, the only clear evidence of dum quoted above. TEXACO OIL COMPANY 413 6. Robert G. Ravert record that Ravert was released to return to work was Ravert had wo jrked^ for theCompanyapproximately1 dated March 24, and it is found that entitlement to acci- ,3^ ^ ^ ^ ;^^ ^<«-~~~~~~~~en and sikns benfit terin e d o n March 24. 1980. 13-1/2 years and had been a union member for the entire dn n ikesbnft emntdo ac 4 90 duration of his employment by Respondent. On Novem- R a v e r t, lik e Wergin, a lso f ile d a charge concerning his ber 3, he was involved in an accident away from work l o s s o f a c c id e n t and sickness benefits. Ravert stated that where he suffered three broken ribs and a fractured h e f e l t t h a t h e s h o u ld h a v e b e e n paid h is Premiums and shoulder blade. Accident and sickness benefits were paid was inquiring about the propriety of the termination of by Respondent from November 3 through January 8, such benefits. One of the individuals he talked to was 1980. Since January 2 or 3, he was receiving treatments Ralph W. Newman, chairman of the workmen's commit- almost daily thereafter from the nurse at Respondent's t e e f o r t h e L o c a l of the Union. As was the case with facility, until January 8, when the strike commenced. He Wergin, there was no clear showing that the Union re- did receive a treatment on January 8 and noted that the cruited Ravert or otherwise acted improperly so as to strike had begun when he was leaving the premises after abrogate any of the employees' rights to seek redress receiving the treatment,.through the instant proceeding. In fact, Newman credi- Ravert requested permission from the Union to contin- bly testified, that during the negotiations of the strike set- ue receiving the treatments from Respondent, and the tlement, the Union stated that it was willing to withdraw Union granted his request. When Ravert went to Re- t h e charges alleging unfair labor practices by Respondent spondent's facility to continue receiving treatments, a ga- f o r failure to pay accident and sickness benefits, but teman and guard stopped him, telephoned someone at stated that they would continue to assist the membership the facility, and refused to permit him to enter, This re- if they wished to file charges alleging violation of the fusal on the part of Respondent's employees to permit Act for Respondent's failure to pay them their accident Ravert to enter for a continuation of treatment requires a n d sickness benefits." that his termination of treatments during the strike be The strike settlement agreement executed March 29, considered differently from Lake's actions, where he 1980, between Respondent and the Union states as fol- never attempted to continue treatments and was not lows: denied access to the facility. Ravert did visit the picket line once, at an unspecified It is further understood that: (1) Each party will date, but it was not shown that he got out of the car or dismiss any and all litigation now pending against in any way demonstrated public support for the strike. the other or its agents, i.e., injunctions, damage Ravert was continuing medical treatment sometime suits, etc. (including arbitrations, unfair labor prac- after the strike commenced from a Dr. Roussalis, who tice charges, lawsuits and grievances related to any gave him a return to work release dated March 24, 1980. of the benefit plans); (2) that such dismissal will be The reason the release to return to work was obtained at each party's own cost; and (3) that it is agreed that day was that Ravert's wife had an appointment with that no new litigation growing out of or related to the doctor on that day, so he went along to obtain the the strike will be filed. release. He was unclear whether it was given to Re- spondent at any time thereafter. Ravert did not partici- The strike settlement agreement further provides, pate in the picketing before or after March 24, 1980. It under the section entitled "Accident and Sickness Bene- was stipulated that Ravert's personnel file contained two fits": payroll authorization forms for leaves of absence and separation. The first form was dated December 14, 1979, It is understood that employees who are unable to and indicated that he was granted full accident and sick- report to work due to sickness or accident which ness benefits from November through December 31, commenced after the strike began will be eligible 1979, with the date of return to work unknown. The second payroll authorization form, dated January A memorandum memorializing the negotiation meeting for strike set- 17, stated, "[Clontinue full accident and sickness benefits tlement dated March 24, 1980, states as follows: fro- „-1-80 i hrough i:00 onm. .1-_...~i. e e r> _ oThe Union stated that they cannot bargain away an employee's indi- from 1-1-80 through 3:00 p.m. 1-8-80; employee on ,vidual rights for a $10 lump-sum payment. If an employee, on an Strike at 3:00 p.m., 1-8-80," and "date Of return to work individual basis wished to file an NLRB charge or grievance on the unknown." The record is unclear as to whether Ravert A & s benefits lost during the work stoppge, would an employee remained physically disabled from working during the h a ve t he right to d o so ? Management advised the Union that any duratin of he stike. oweve, thepersonel rcords employee on an individual basis could do so by low. It must be duration of the strike. However, the personnel recordsrpointed out, however, that the Company would take a dim view of clearly demonstrate that his benefits were terminated be- our bargaining relationship if any faction of the Union, local or inter- cause of the Strike activities Of Other employees. It is also national, were involved in such a complaint after the culmination of clear that Respondent at no time throughout the duration an agreement. Management would want this understood before any Of the Strike inquired when Ravert would be able to agreement is reached. Upon signing the agreement, the Union would ,.,.- , -. . , , ,. , , ~~~~~~be precluded from representation in any form or manner. return to his duties and refrained from making such a de- b p f r n i a f o m Newman stated that the Union was not representing these people, but termination and did not State any reasons for Its failure t0 as assisting them and that Newman was at the hearing on his own and do so. The failure Of Respondent to permit Ravert on the not as a union representative. As the memorandum indicates, the individ- premises to continue treatments precluded by its Own ac- ual employees retain the right to rile charges which they have done so in tions the Company from having a fair assessment by its t his proceeding, and t he evidence does not adequately show that there was any basis for making a finding as to whether the Union did or did Own medical Staff as to when Ravert would be ready to no, abide by the strike settlement agreement as reflected in the memoran- return to work. Accordingly, the only clear evidence of dum quoted above. TEXACO OIL COMPANY 413 6. Robert G. Ravert record that Ravert was released to return to work was Ravert had wo jrked^ for theCompanyapproximately1 dated March 24, and it is found that entitlement to acci- ,3^^^ ^;^^^~~~~~~~~~~ d en a d sikns benfit terin e d o n M a rc h 24 , T90 13-1/2 years and had been a union member for the entire dn n ikesbnft emntdo ac 4 90 duration of his employment by Respondent. On Novem- R a v e r t, lik e Wergin, a lso f ile d a charge concerning his ber 3, he was involved in an accident away from work l o s s o f a c c id e n t and sickness benefits. Ravert stated that where he suffered three broken ribs and a fractured h e f e l t t h a t h e s h o u ld h a v e b e e n paid h is Premiums and shoulder blade. Accident and sickness benefits were paid was inquiring about the propriety of the termination of by Respondent from November 3 through January 8, such benefits. One of the individuals he talked to was 1980. Since January 2 or 3, he was receiving treatments Ralph W. Newman, chairman of the workmen's commit- almost daily thereafter from the nurse at Respondent's t e e f o r t h e L o c a l of the Union. As was the case with facility, until January 8, when the strike commenced. He Wergin, there was no clear showing that the Union re- did receive a treatment on January 8 and noted that the cruited Ravert or otherwise acted improperly so as to strike had begun when he was leaving the premises after abrogate any of the employees' rights to seek redress receiving the treatment,.through the instant proceeding. In fact, Newman credi- Ravert requested permission from the Union to contin- bly testified, that during the negotiations of the strike set- ue receiving the treatments from Respondent, and the tlement, the Union stated that it was willing to withdraw Union granted his request. When Ravert went to Re- t h e charges alleging unfair labor practices by Respondent spondent's facility to continue receiving treatments, a ga- f o r failure to pay accident and sickness benefits, but teman and guard stopped him, telephoned someone at stated that they would continue to assist the membership the facility, and refused to permit him to enter, This re- if they wished to file charges alleging violation of the fusal on the part of Respondent's employees to permit Act for Respondent's failure to pay them their accident Ravert to enter for a continuation of treatment requires a n d sickness benefits." that his termination of treatments during the strike be The strike settlement agreement executed March 29, considered differently from Lake's actions, where he 1980, between Respondent and the Union states as fol- never attempted to continue treatments and was not lows: denied access to the facility. Ravert did visit the picket line once, at an unspecified It is further understood that: (1) Each party will date, but it was not shown that he got out of the car or dismiss any and all litigation now pending against in any way demonstrated public support for the strike. the other or its agents, i.e., injunctions, damage Ravert was continuing medical treatment sometime suits, etc. (including arbitrations, unfair labor prac- after the strike commenced from a Dr. Roussalis, who tice charges, lawsuits and grievances related to any gave him a return to work release dated March 24, 1980. of the benefit plans); (2) that such dismissal will be The reason the release to return to work was obtained at each party's own cost; and (3) that it is agreed that day was that Ravert's wife had an appointment with that no new litigation growing out of or related to the doctor on that day, so he went along to obtain the the strike will be filed. release. He was unclear whether it was given to Re- spondent at any time thereafter. Ravert did not partici- The strike settlement agreement further provides, pate in the picketing before or after March 24, 1980. It under the section entitled "Accident and Sickness Bene- was stipulated that Ravert's personnel file contained two fits": payroll authorization forms for leaves of absence and separation. The first form was dated December 14, 1979, It is understood that employees who are unable to and indicated that he was granted full accident and sick- report to work due to sickness or accident which ness benefits from November through December 31, commenced after the strike began will be eligible 1979, with the date of return to work unknown. The second payroll authorization form, dated January A memorandum memorializing the negotiation meeting for strike set- 17, stated, "[Clontinue full accident and sickness benefits tlement dated March 24, 1980, states as follows: fro- „-1-80 i hrough i:00 onm. .1-_...~i. e e r> _ oThe Union stated that they cannot bargain away an employee's indi- from 1-1-80 through 3:00 p.m. 1-8-80; employee on ,vidual rights for a $10 lump-sum payment. If an employee, on an Strike at 3:00 p.m., 1-8-80," and "date Of return to work individual basis wished to file an NLRB charge or grievance on the unknown." The record is unclear as to whether Ravert A & s benefits lost during the work stoppge, would an employee remained physically disabled from working during the h a ve t he right to d o so ? Management advised the Union that any duratin of he stike. oweve, thepersonel rcords employee on an individual basis could do so by low. It must be duration of the strike. However, the personnel records'pointed out, however, that the Company would take a dim view of clearly demonstrate that his benefits were terminated be- our bargaining relationship if any faction of the Union, local or inter- cause of the Strike activities Of Other employees. It is also national, were involved in such a complaint after the culmination of clear that Respondent at no time throughout the duration an agreement. Management would want this understood before any Of the Strike inquired when Ravert would be able to agreement is reached. Upon signing the agreement, the Union would ,.,.- , -. . , , ,. , , ~~~~~~be precluded from representation in any form or manner. return to his duties and refrained from making such a de- b p f r n i a f o m Newman stated that the Union was not representing these people, but termination and did not State any reasons for Its failure to was assisting them and that Newman was at the hearing on his own and do so. The failure Of Respondent to permit Ravert on the not as a union representative. As the memorandum indicates, the individ- premises to continue treatments precluded by its Own ac- ual employees retain the right to rile charges which they have done so in tions the Company from having a fair assessment by its t his proceeding, and t he evidence does not adequately show that there was any basis for making a finding as to whether the Union did or did Own medical Staff as to when Ravert would be ready to no, abide by the strike settlement agreement as reflected in the memoran- return to work. Accordingly, the only clear evidence of dum quoted above. TEXACO OIL COMPANY 413 6. Robert G. Ravert record that Ravert was released to return to work was Ravert had wo jrked^ for theCompanyapproximately1 dated March 24, and it is found that entitlement to acci- ,3^^ ^ ^;^^ ^~~~~~~~~~~ d en a d sikess benefits tenminated on March 24. 1980. 13-1/2 years and had been a union member for the entire dn n ikesbnft emntdo ac 4 90 duration of his employment by Respondent. On Novem- R a v e r t, lik e Wergin, a lso f ile d a charge concerning his ber 3, he was involved in an accident away from work l o s s o f a c c id e n t and sickness benefits. Ravert stated that where he suffered three broken ribs and a fractured h e f e l t t h a t h e s h o u ld h a v e b e e n paid h is Premiums and shoulder blade. Accident and sickness benefits were paid was inquiring about the propriety of the termination of by Respondent from November 3 through January 8, such benefits. One of the individuals he talked to was 1980. Since January 2 or 3, he was receiving treatments Ralph W. Newman, chairman of the workmen's commit- almost daily thereafter from the nurse at Respondent's t e e f o r t h e L o c a l of the Union. As was the case with facility, until January 8, when the strike commenced. He Wergin, there was no clear showing that the Union re- did receive a treatment on January 8 and noted that the cruited Ravert or otherwise acted improperly so as to strike had begun when he was leaving the premises after abrogate any of the employees' rights to seek redress receiving the treatment,.through the instant proceeding. In fact, Newman credi- Ravert requested permission from the Union to contin- bly testified, that during the negotiations of the strike set- ue receiving the treatments from Respondent, and the tlement, the Union stated that it was willing to withdraw Union granted his request. When Ravert went to Re- t h e charges alleging unfair labor practices by Respondent spondent's facility to continue receiving treatments, a ga- f o r failure to pay accident and sickness benefits, but teman and guard stopped him, telephoned someone at stated that they would continue to assist the membership the facility, and refused to permit him to enter, This re- if they wished to file charges alleging violation of the fusal on the part of Respondent's employees to permit Act for Respondent's failure to pay them their accident Ravert to enter for a continuation of treatment requires a n d sickness benefits." that his termination of treatments during the strike be The strike settlement agreement executed March 29, considered differently from Lake's actions, where he 1980, between Respondent and the Union states as fol- never attempted to continue treatments and was not lows: denied access to the facility. Ravert did visit the picket line once, at an unspecified It is further understood that: (1) Each party will date, but it was not shown that he got out of the car or dismiss any and all litigation now pending against in any way demonstrated public support for the strike. the other or its agents, i.e., injunctions, damage Ravert was continuing medical treatment sometime suits, etc. (including arbitrations, unfair labor prac- after the strike commenced from a Dr. Roussalis, who tice charges, lawsuits and grievances related to any gave him a return to work release dated March 24, 1980. of the benefit plans); (2) that such dismissal will be The reason the release to return to work was obtained at each party's own cost; and (3) that it is agreed that day was that Ravert's wife had an appointment with that no new litigation growing out of or related to the doctor on that day, so he went along to obtain the the strike will be filed. release. He was unclear whether it was given to Re- spondent at any time thereafter. Ravert did not partici- The strike settlement agreement further provides, pate in the picketing before or after March 24, 1980. It under the section entitled "Accident and Sickness Bene- was stipulated that Ravert's personnel file contained two fits": payroll authorization forms for leaves of absence and separation. The first form was dated December 14, 1979, It is understood that employees who are unable to and indicated that he was granted full accident and sick- report to work due to sickness or accident which ness benefits from November through December 31, commenced after the strike began will be eligible 1979, with the date of return to work unknown. The second payroll authorization form, dated January A memorandum memorializing the negotiation meeting for strike set- 17, stated, "[Clontinue full accident and sickness benefits tlement dated March 24, 1980, states as follows: fro- „-1-80 i hrough i:00 onm. .1-_...~i. e e r> _ oThe Union stated that they cannot bargain away an employee's indi- from 1-1-80 through 3:00 p.m. 1-8-80; employee on ,vidual rights for a $10 lump-sum payment. If an employee, on an Strike at 3:00 p.m., 1-8-80," and "date Of return to work individual basis wished to file an NLRB charge or grievance on the unknown." The record is unclear as to whether Ravert A & s benefits lost during the work stoppge, would an employee remained physically disabled from working during the h a ve t he right to d o so ? Management advised the Union that any duratin of he stike. oweve, thepersonel rcords employee on an individual basis could do so by low. It must be duration of the strike. However, the personnel records'pointed out, however, that the Company would take a dim view of clearly demonstrate that his benefits were terminated be- our bargaining relationship if any faction of the Union, local or inter- cause of the Strike activities Of Other employees. It is also national, were involved in such a complaint after the culmination of clear that Respondent at no time throughout the duration an agreement. Management would want this understood before any Of the Strike inquired when Ravert would be able to agreement is reached. Upon signing the agreement, the Union would ,.,.- , -. . , , ,. , , ~~~~~~be precluded from representation in any form or manner. return to his duties and refrained from making such a de- b p f r n i a f o m Newman stated that the Union was not representing these people, but termination and did not State any reasons for Its failure to was assisting them and that Newman was at the hearing on his own and do so. The failure Of Respondent to permit Ravert on the not as a union representative. As the memorandum indicates, the individ- premises to continue treatments precluded by its Own ac- ual employees retain the right to rile charges which they have done so in tions the Company from having a fair assessment by its t his proceeding, and t he evidence does not adequately show that there was any basis for making a finding as to whether the Union did or did Own medical Staff as to when Ravert would be ready to no, abide by the strike settlement agreement as reflected in the memoran- return to work. Accordingly, the only clear evidence of dum quoted above. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for A & S benefits beginning with the termination In short, these employees had a Section 7 right to of the strike, provided satisfactory evidence of dis- refrain from declaring their position on this strike ability is established, except that the first scheduled while they were medically excused. That they ex- work day after the strike ends will serve as the cus- hibited some strike support after medical release, tomary 1-day waiting period in accordance with the and testified that if physically able they would have terms of the Company's Accident and Sick Benefit joined the strike, is irrelevant in my view. To the Plan. In addition, for employees who were disabled extent, however, that some evidenced strike support before the strike began and were receiving A & S by visiting the picket line and/or picketing before benefits, such benefits shall be resumed at the time medical release, I would limit the amount of contin- the strike is officially discontinued if satisfactory ued sick pay to the period ending with the date of evidence of continuing disability is established. such supportive action. This document was signed March 29, 1980, by A. K. In overruling the inconsistent holdings of Southwestern Sherer, acting plant manager, the chairman of the work- Electric Power Company, supra, the Board stated, in Em- men's committee, Ralph Newman, the president of Local erson Electric Co.: 2-230, John J. Kennedy, the International representative, Ronald D. Holloway, and a workmen's committee of Accordingly, we now hold that for an employer four individuals. As Administrative Law Judge Ricci to be justified in terminating any disability benefits found in his Decision in Emerson Electric,' a contention to employees who are unable to work at the start of that the settlement agreement requires dismissal of the in- a strike it must show that it has acquired informa- stant complaint is without merit for the public right su- tion which indicates that the employee whose bene- persedes the private agreement. Furthermore, the lan- fits are to be terminated has affirmatively acted to guage of the agreement does not clearly abrogate the show public support for the strike. [246 NLRB at rights of union members or other employees from filing 1144.] charges. There is no explicit waiver of these rights. The fact that the Company herein determined to ter- D. Discussion and Conclusions minate all accident and sickness benefits prior to the commencement of the strike does not abrogate the effica- The Board, in Emerson Electric Co., supra, held that cy of the Emerson Electric case decision nor does it result termination of sickness and accident benefits to employ- in a determination that the decision was for a proper ees who were physically unable to work on and after the motive and therefore cannot be found violative of Sec- date the strike commenced because other employees tion 8(aX3) of the Act. As then Board Member Fanning went out on strike, immediately upon commencement of indicated in his dissent in Southwestern Electric Power the strike, was violative of the Act on the basis of the ompany, the employee has the right to determine if he reasons given by the then Chairman Fannings dissent in was going to join his counion members in their decision Southwestern Electric Power Company, 216 NLRB 522, to withhold their services by joining in the strike. An in- 523 (1975), which states as follows: dividual who is on sick leave prior to the commence- The Respondent takes the simplistic position that ment of the strike and continues to be disabled to per- form his work duties cannot be said to have ceased his as wages "under the law" are not continued for thowork in connection with a current labor dispute and con- strikers, they are not continued for those on con- sequentl cannot be considered a striker. 3 tinuing sick pay unless the recipients disavow the strike. In essence, my colleagues agree. This ignores As the ourt recognized in N.L.R.. v. Fnsteel Met- Section 7 and the right of an employee to join in or allurgical Corp., 306 U.S. 240, 255, 256 (1939): refrain from concerted activity. Granted, these em- The conduct thus protected is lawful conduct. Con- ployees on sick leave were entitled to no wages ployees on sick leave were entitled to no wages gress also recognized the right to strike-that the once their excused absences expired and they failed employees could lawfully cease work at their own employees could lawfully cease work at their own to return to work. It is a far cry for this Board to olo ecause of e o the emp r to volition because of the failure of the employer to require that they disavow legal strike action by meet their demands. their Union during their sick leave in order to re- ceive their sick pay. Not only is it contrary to the Therefore, it is concluded that the six employees statute, but it lacks support in Board precedent. named above did not cease work as strikers, but were Cases where the Board has sanctioned the discharge deemed unable to work due to sickness and disability of presumed strikers in the context of strikes in vio- and, until they were afforded an opportunity to exercise lation of no-strike provisions are inapplicable. their right to determine if they were going to cease work or continue work, the presumption on the part of Re- " E L Wiegand Division. Emerson Electric CoL, 246 NLRB 1143 ( l : L Wieend Division Emecson Elrrric Ca, 26 NLRB 1143 spondent that they exercised their right of choice or (1979), citing National Licorice Company v. N.LR.B., 309 U.S. 350 spondent that they exercised their right of choice or (1940); Amalgamated Utility Workers (C.I.O.) v. Consolidated Edison Co. of New York, 309 U.S. 261 (1940); Agwilines Inc. v. N.LR.B., 87 F.2d 146 Since individuals who have not announced their support for the (5th Cir. 1936); J. . Case Ca v. N.LR.B., 321 U.S. 332 (1944); and Union who were on sick or disability leave prior to and continuing Harold A. Boire v. International Brotherhood of Teamsters Chauffeurs during the strike cannot be said to have voluntarily determined to with- Warehousemen & Helpers of America [Pilot Motor Freight Carriers Inc.], hold their services and to strike, the cases dealing with the cessation or 479 F.2d 778 (5th Cir. 1973). continuation of benefits to strikers are held inapplicable. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for A & S benefits beginning with the termination In short, these employees had a Section 7 right to of the strike, provided satisfactory evidence of dis- refrain from declaring their position on this strike ability is established, except that the first scheduled while they were medically excused. That they ex- work day after the strike ends will serve as the cus- hibited some strike support after medical release, tomary 1-day waiting period in accordance with the and testified that if physically able they would have terms of the Company's Accident and Sick Benefit joined the strike, is irrelevant in my view. To the Plan. In addition, for employees who were disabled extent, however, that some evidenced strike support before the strike began and were receiving A & S by visiting the picket line and/or picketing before benefits, such benefits shall be resumed at the time medical release, I would limit the amount of contin- the strike is officially discontinued if satisfactory ued sick pay to the period ending with the date of evidence of continuing disability is established. such supportive action. This document was signed March 29, 1980, by A. K. In overruling the inconsistent holdings of Southwestern Sherer, acting plant manager, the chairman of the work- Electric Power Company, supra, the Board stated, in Em- men's committee, Ralph Newman, the president of Local erson Electric Co.: 2-230, John J. Kennedy, the International representative, Ronald D. Holloway, and a workmen's committee of Accordingly, we now hold that for an employer four individuals. As Administrative Law Judge Ricci to be justified in terminating any disability benefits found in his Decision in Emerson Electric," a contention to employees who are unable to work at the start of that the settlement agreement requires dismissal of the in- a strike it must show that it has acquired informa- stant complaint is without merit for the public right su- tion which indicates that the employee whose bene- persedes the private agreement. Furthermore, the lan- fits are to be terminated has affirmatively acted to guage of the agreement does not clearly abrogate the show public support for the strike. [246 NLRB at rights of union members or other employees from filing 1144.] charges. There is no explicit waiver of these rights. The fact that the Company herein determined to ter- D. Discussion and Conclusions minate all accident and sickness benefits prior to the commencement of the strike does not abrogate the effica- The Board, in Emerson Electric Co.. supra, held that cy of the Emerson Electric case decision nor does it result termination of sickness and accident benefits to employ-„in a determination that the decision was for a proper ees who were physically unable to work on and after the motive and therefore cannot be found violative of Sec- date the strike commenced because other employees tion 8(a)3) of the Act. As then Board Member Fanning went out on strike, immediately upon commencement of indicated in his dissent in Southwestern Electric Power the strike, was violative of the Act on the basis of the Company , the employee has the right to determine if he reasons given by the then Chairman Fanning's dissent in was going to join his counion members in their decision Southwestern Electric Power Company, 216 NLRB 522, to withhold their services by joining in the strike. An in- 523 (1975), which states as follows: dividual who is on sick leave prior to the commence- The Respondent takes the simplistic position that, m en t o f t h e s t ri k e an d c o n t in u es t o b e d is ab l ed t o p e r- form his work duties cannot be said to have ceased his as wages "under the law" are not continued for f r l w o k d t e c a n b s l t h v ea d h s astwagers,"unde theylaw" are not continued for tho w o r k in connection with a current labor dispute and con- strikers, they are not continued for those on con- sqetycno ecniee tie.1 tinuing sick pay unless the recipients disavow the strike. In essence, my colleagues agree. This ignores A s t h e C o ur t recognized in N.L.R.B. v. Fonsteel Met- Section 7 and the right of an employee to join in or a l lu rgic a l Corp., 30 6 U.S. 240 , 25 5, 256 (19 39): refrain from concerted activity. Granted, these em- Th c t p e is lf c ployees on sixckleavse wereentitled tohno wages gress al so re cognized t h e r ight t o strike-that t h e once their excused absences expired and they failed epoescudlwul es oka hi w , ,. . , * r »i. n -i employees could lawfully cease work at their own to return to work. It is a far cry for this Board to v b o the f of t e r t require that they disavow legal strike action by meet their demands. their Union during their sick leave in order to re- ceive their sick pay. Not only is it contrary to the Therefore, it is concluded that the six employees statute, but it lacks support in Board precedent. named above did not cease work as strikers, but were Cases where the Board has sanctioned the discharge deemed unable to work due to sickness and disability of presumed strikers in the context of strikes in vio- and, until they were afforded an opportunity to exercise lation of no-strike provisions are inapplicable. their right to determine if they were going to cease work ------ ieand Divsion, Emrson Elctric Co, 246 NRB 1143 or continue work, the presumption on the part of Re- (1979), citing nent that they exercised their right of choice or (1940); Amalgamated Utility Workers (C.I.O.) v. Consolidated Edison Co. ofNew York, 309 U.S. 261 (1940); Agwilines. Inc. v. N.L.R.B., 87 F.2d 146 Since individuals who have not announced their support for the (5th Cir. 1936); J. /. Case Ca v. N.L.R.B., 321 U.S. 332 (1944); and Union who were on sick or disability leave prior to and continuing Harold A. Boire v. International Brotherhood of Teamsters Chauffeurs, during the strike cannot be said to have voluntarily determined to with- Warehousemen & Helpers ofAmerica [Pilot Motor Freight Carriers. Inc.], hold their services and to strike, the cases dealing with the cessation or 479 F.2d 778 (5th Cir. 1973). continuation of benefits to strikers are held inapplicable. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for A & S benefits beginning with the termination In short, these employees had a Section 7 right to of the strike, provided satisfactory evidence of dis- refrain from declaring their position on this strike ability is established, except that the first scheduled while they were medically excused. That they ex- work day after the strike ends will serve as the cus- hibited some strike support after medical release, tomary 1-day waiting period in accordance with the and testified that if physically able they would have terms of the Company's Accident and Sick Benefit joined the strike, is irrelevant in my view. To the Plan. In addition, for employees who were disabled extent, however, that some evidenced strike support before the strike began and were receiving A & S by visiting the picket line and/or picketing before benefits, such benefits shall be resumed at the time medical release, I would limit the amount of contin- the strike is officially discontinued if satisfactory ued sick pay to the period ending with the date of evidence of continuing disability is established. such supportive action. This document was signed March 29, 1980, by A. K. In overruling the inconsistent holdings of Southwestern Sherer, acting plant manager, the chairman of the work- Electric Power Company, supra, the Board stated, in Em- men's committee, Ralph Newman, the president of Local erson Electric Co.: 2-230, John J. Kennedy, the International representative, Ronald D. Holloway, and a workmen's committee of Accordingly, we now hold that for an employer four individuals. As Administrative Law Judge Ricci to be justified in terminating any disability benefits found in his Decision in Emerson Electric," a contention to employees who are unable to work at the start of that the settlement agreement requires dismissal of the in- a strike it must show that it has acquired informa- stant complaint is without merit for the public right su- tion which indicates that the employee whose bene- persedes the private agreement. Furthermore, the lan- fits are to be terminated has affirmatively acted to guage of the agreement does not clearly abrogate the show public support for the strike. [246 NLRB at rights of union members or other employees from filing 1144.] charges. There is no explicit waiver of these rights. The fact that the Company herein determined to ter- D. Discussion and Conclusions minate all accident and sickness benefits prior to the commencement of the strike does not abrogate the effica- The Board, in Emerson Electric Co.. supra, held that cy of the Emerson Electric case decision nor does it result termination of sickness and accident benefits to employ-„in a determination that the decision was for a proper ees who were physically unable to work on and after the motive and therefore cannot be found violative of Sec- date the strike commenced because other employees tion 8(a)3) of the Act. As then Board Member Fanning went out on strike, immediately upon commencement of indicated in his dissent in Southwestern Electric Power the strike, was violative of the Act on the basis of the Company , the employee has the right to determine if he reasons given by the then Chairman Fanning's dissent in was going to join his counion members in their decision Southwestern Electric Power Company, 216 NLRB 522, to withhold their services by joining in the strike. An in- 523 (1975), which states as follows: dividual who is on sick leave prior to the commence- The Respondent takes the simplistic position that, m en t o f t h e s t ri k e an d c o n t in u es t o b e d is ab l ed t o p e r- fo r m h is w o r k duties cannot be said to have ceased his astwagers,"unde theylaw" are not continued for tho w o r k in connection with a current labor dispute and con- strikers, they are not continued for those on con- sqetycno ecniee tie.1 tinuing sick pay unless the recipients disavow the strike. In essence, my colleagues agree. This ignores A s t h e C o ur t recognized in N.L.R.B. v. Fonsteel Met- Section 7 and the right of an employee to join in or a l lu rgic a l Corp., 30 6 U.S. 240 , 25 5, 256 (19 39): refrain from concerted activity. Granted, these em- Th c t p e is lf c ployees on sixckleavse wereentitled tohno wages gress al so re cognized t h e r ight t o strike-that t h e once their excused absences expired and they failed epoescudlwul es oka hi w , ,. . , * r »i. n -i employees could lawfully cease work at their own to return to work. It is a far cry for this Board to v b o the f of t e r t require that they disavow legal strike action by meet their demands. their Union during their sick leave in order to re- ceive their sick pay. Not only is it contrary to the Therefore, it is concluded that the six employees statute, but it lacks support in Board precedent. named above did not cease work as strikers, but were Cases where the Board has sanctioned the discharge deemed unable to work due to sickness and disability of presumed strikers in the context of strikes in vio- and, until they were afforded an opportunity to exercise lation of no-strike provisions are inapplicable. their right to determine if they were going to cease work ------ ieand Divsion, Emrson Elctric Co, 246 NRB 1143 or continue work, the presumption on the part of Re- (1979), citingent that they exercised their right of choice or (1940); Amalgamated Utility Workers (C.I.O.) v. Consolidated Edison Co. ofNew York, 309 U.S. 261 (1940); Agwilines. Inc. v. N.L.R.B., 87 F.2d 146 Since individuals who have not announced their support for the (5th Cir. 1936); J. /. Case Ca v. N.L.R.B., 321 U.S. 332 (1944); and Union who were on sick or disability leave prior to and continuing Harold A. Boire v. International Brotherhood of Teamsters Chauffeurs, during the strike cannot be said to have voluntarily determined to with- Warehousemen & Helpers ofAmerica [Pilot Motor Freight Carriers. Inc.], hold their services and to strike, the cases dealing with the cessation or 479 F.2d 778 (5th Cir. 1973). continuation of benefits to strikers are held inapplicable. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for A & S benefits beginning with the termination In short, these employees had a Section 7 right to of the strike, provided satisfactory evidence of dis- refrain from declaring their position on this strike ability is established, except that the first scheduled while they were medically excused. That they ex- work day after the strike ends will serve as the cus- hibited some strike support after medical release, tomary 1-day waiting period in accordance with the and testified that if physically able they would have terms of the Company's Accident and Sick Benefit joined the strike, is irrelevant in my view. To the Plan. In addition, for employees who were disabled extent, however, that some evidenced strike support before the strike began and were receiving A & S by visiting the picket line and/or picketing before benefits, such benefits shall be resumed at the time medical release, I would limit the amount of contin- the strike is officially discontinued if satisfactory ued sick pay to the period ending with the date of evidence of continuing disability is established. such supportive action. This document was signed March 29, 1980, by A. K. In overruling the inconsistent holdings of Southwestern Sherer, acting plant manager, the chairman of the work- Electric Power Company, supra, the Board stated, in Em- men's committee, Ralph Newman, the president of Local erson Electric Co.: 2-230, John J. Kennedy, the International representative, Ronald D. Holloway, and a workmen's committee of Accordingly, we now hold that for an employer four individuals. As Administrative Law Judge Ricci to be justified in terminating any disability benefits found in his Decision in Emerson Electric," a contention to employees who are unable to work at the start of that the settlement agreement requires dismissal of the in- a strike it must show that it has acquired informa- stant complaint is without merit for the public right su- tion which indicates that the employee whose bene- persedes the private agreement. Furthermore, the lan- fits are to be terminated has affirmatively acted to guage of the agreement does not clearly abrogate the show public support for the strike. [246 NLRB at rights of union members or other employees from filing 1144.] charges. There is no explicit waiver of these rights. The fact that the Company herein determined to ter- D. Discussion and Conclusions minate all accident and sickness benefits prior to the commencement of the strike does not abrogate the effica- The Board, in Emerson Electric Co.. supra, held that cy of the Emerson Electric case decision nor does it result termination of sickness and accident benefits to employ-„in a determination that the decision was for a proper ees who were physically unable to work on and after the motive and therefore cannot be found violative of Sec- date the strike commenced because other employees tion 8(a)3) of the Act. As then Board Member Fanning went out on strike, immediately upon commencement of indicated in his dissent in Southwestern Electric Power the strike, was violative of the Act on the basis of the Company , the employee has the right to determine if he reasons given by the then Chairman Fanning's dissent in was going to join his counion members in their decision Southwestern Electric Power Company, 216 NLRB 522, to withhold their services by joining in the strike. An in- 523 (1975), which states as follows: dividual who is on sick leave prior to the commence- The Respondent takes the simplistic position that, m en t o f t h e s t ri k e an d c o n t in u es t o b e d is ab l ed t o p e r- fo r m h is w o r k duties cannot be said to have ceased his astwagers,"unde theylaw" are not continued for tho w o r k in connection with a current labor dispute and con- strikers, they are not continued for those on con- sqetycno ecniee tie.1 tinuing sick pay unless the recipients disavow the strike. In essence, my colleagues agree. This ignores A s t h e C o ur t recognized in N.L.R.B. v. Fonsteel Met- Section 7 and the right of an employee to join in or a l lu rgic a l Corp., 30 6 U.S. 240 , 25 5, 256 (19 39): refrain from concerted activity. Granted, these em- Th c t p e is lf c ployees on sixckleavse wereentitled tohno wages gress al so re cognized t h e r ight t o strike-that t h e once their excused absences expired and they failed epoescudlwul es oka hi w , ,. . , * r »i. n -i employees could lawfully cease work at their own to return to work. It is a far cry for this Board to v b o the f of t e r t require that they disavow legal strike action by meet their demands. their Union during their sick leave in order to re- ceive their sick pay. Not only is it contrary to the Therefore, it is concluded that the six employees statute, but it lacks support in Board precedent. named above did not cease work as strikers, but were Cases where the Board has sanctioned the discharge deemed unable to work due to sickness and disability of presumed strikers in the context of strikes in vio- and, until they were afforded an opportunity to exercise lation of no-strike provisions are inapplicable. their right to determine if they were going to cease work ------ ieand Divsion, Emrson Elctric Co, 246 NRB 1143 or continue work, the presumption on the part of Re- (1979), citingent that they exercised their right of choice or (1940); Amalgamated Utility Workers (C.I.O.) v. Consolidated Edison Co. ofNew York, 309 U.S. 261 (1940); Agwilines. Inc. v. N.L.R.B., 87 F.2d 146 Since individuals who have not announced their support for the (5th Cir. 1936); J. /. Case Ca v. N.L.R.B., 321 U.S. 332 (1944); and Union who were on sick or disability leave prior to and continuing Harold A. Boire v. International Brotherhood of Teamsters Chauffeurs, during the strike cannot be said to have voluntarily determined to with- Warehousemen & Helpers ofAmerica [Pilot Motor Freight Carriers. Inc.], hold their services and to strike, the cases dealing with the cessation or 479 F.2d 778 (5th Cir. 1973). continuation of benefits to strikers are held inapplicable. TEXACO OIL COMPANY 415 would be treated as if they had exercised their right of may need to plan for coverage for your vacant choice deprives them of their options guaranteed under shift. Section 7 to join or refrain from joining others in pro- 2. If you are unable to contact your supervisor or tected activity. An individual who is receiving sickness the Night Foreman, you may contact the Employee or disability payments when a strike commences, by defi- Relations Department. If you are unable to contact nition, is not ceasing to withhold services as are the any of these, you must leave a number where you strikers, and therefore must be afforded the protection of may be reached. Section 7 to exercise his option of joining or refraining 3. You should personally report your absence from joining the strikers. By terminating the sickness and unless you are physically unable to do so. If you are disability payments, Respondent in fact presumed such unable to make the call yourself, your spouse or an election, based on the actions of the other employees, other family member may call for you following the The fact that in the instant case Respondent notified procedure outlined in 1. and 2. above. all employees that their benefits would be terminated at 4. Failure to report an absence, or failure to the commencement of the strike does not present a situa- properly notify supervision, will result in the ab- tion so distinguishable from Emerson Electric as to war- sence being considered as AWOL. rant the application of a different standard of behavior At the inception of the various illnesses of the six em- warranting a different result. In the instant situation, the ployees here under consideration, they abided by the re- motivating factor for the termination of the payments porting of absence procedures as outlined in the above- was the strike. Work would have been scheduled for all quoted memorandum, which is Respondent's Exhibit 1. hourly employees except for the strike. Respondent, ad- There is no showing regarding a frequency of reporting mittedly, did not ascertain whether all employees sup- requirement being imposed by the supervisors or other ported the strike. Furthermore, Respondent failed to individuals to whom the initial reports were given. demonstrate that the situation had such a potential for The argument that the negotiation of accident and violence or that the strikers' conduct was so egregious as sickness benefits into the agreement permitted obviating to warrant abrogation of the normal protections afforded such terms of the provision in the benefit plan 1 is unper- under Section 7 of the Act. Furthermore, even if some of suasive. The rules governing the plan provide: the strikers' activities were shown to be egregious, that . would have been subsequent to the deprivation of the 4 Illn ess o r ac cid e n t occurring when an employ- benefits and also is deemed irrelevant in the instant situa- ee is not on duty will not serve to disqualify such tion since the workers could not be termed to be strikers employee for benefits under this lan except where such illness or accident occurs while he or she is on until their position regarding the strike was ascertained leae o asnte or r sere or they publicly demonstrated their support for the eave of absence grante for m ilitary service or strike. There was no showing that the strikers or theaof r acan Union caused Respondent any concern that the continu- ation of sickness and disability payments would have re- . . * * suited in the lengthening of the strike or caused objec- tionable activity. Accordingly, it is concluded that Re- 12. This plan is entirely voluntary on the part of spondent has failed to present a valid business reason for the Company and benefits hereunder shall not be abrogating these employees' rights to election under Sec- subject to assignment, garnishment, attachment, or tion 7 to join or refrain from joining the strike for valid execution. Neither shall this Plan be construed to business reasons that outweigh the injury done to these give any employee the right to be retained in the employees by denying them such an election. It is also service of the Company or entitle him or her to concluded that there is a direct link between the decision benefits hereunder after his or her separation from not to schedule work, not to pay sickness and disability service. payments to these employees solely because of the strike, 13. In the application of this Plan, the records of which is a protected concerted activity. the Company shall be conclusive in determining an Initially, Respondent argues that under the Texaco ac- employee's length of service, salary, and wages. cident and sickness benefit fund, which was negotiated 14. The decision of the Company shall be final into the labor agreement, Texaco has reserved the right and conclusive with respect to every question to terminate accident and sickness benefits and to require which may arise relating to either the interpretation the employee to come forward and present satisfactory or administration of this Plan. evidence of entitlement to such benefits. The notice posted at the plant and distributed to all the employees All employees are covered by the plan, and the rules do provides, as pertinent: not create special exceptions for strikes or strikers. That the Union agreed to article VIII, section 2, of the 1. If you are unable to report for work as a result applicable agreement prior to seeking reopening of the of accident, illness or for any other reason, you contract does not denote an express waiver of employee must call your supervisor, or the Night Foreman, rights to accident and sickness benefits. That section of when applicable, as early as possible and give the the contract provides that the accident and sickness reason for the absence, the expected duration of the absence, and any other information the supervisor "J. Exh. 5. TEXACO OIL COMPANY 415 would be treated as if they had exercised their right of may need to plan for coverage for your vacant choice deprives them of their options guaranteed under shift. Section 7 to join or refrain from joining others in pro- 2. If you are unable to contact your supervisor or tected activity. An individual who is receiving sickness the Night Foreman, you may contact the Employee or disability payments when a strike commences, by defi- Relations Department. If you are unable to contact nition, is not ceasing to withhold services as are the any of these, you must leave a number where you strikers, and therefore must be afforded the protection of may be reached. Section 7 to exercise his option of joining or refraining 3. You should personally report your absence from joining the strikers. By terminating the sickness and unless you are physically unable to do so. If you are disability payments, Respondent in fact presumed such unable to make the call yourself, your spouse or an election, based on the actions of the other employees,' other family member may call for you following the The fact that in the instant case Respondent notified procedure outlined in 1. and 2. above. all employees that their benefits would be terminated at 4. Failure to report an absence, or failure to the commencement of the strike does not present a situa- properly notify supervision, will result in the ab- tion so distinguishable from Emerson Electric as to war- sen c e being considered as AWOL. rant the application of a different standard of behavior At the inception of the various illnesses of the six em- warranting a different result. In the instant situation, the ployees here under consideration, they abided by the re- motivating factor for the termination of the payments porting of absence procedures as outlined in the above- was the strike. Work would have been scheduled for all q ed memorandum, which is Respondent's Exhibit 1. hourly employees except for the strike. Respondent, ad- There is no showing regarding a frequency of reporting mittedly, did not ascertain whether all employees sup- requirement being imposed by the supervisors or other ported the strike. Furthermore, Respondent failed to individuals to whom the initial reports were given. demonstrate that the situation had such a potential for The argument that the negotiation of accident and violence or that the strikers' conduct was so egregious as sickness benefits into the agreement permitted obviating to warrant abrogation of the normal protections afforded such terms of the provision in the benefit plan 1I is unper- under Section 7 of the Act. Furthermore, even if some of suasive. The rules governing the plan provide: the strikers' activities were shown to be egregious, that 4. In o a o would have been subsequent to the deprivation of the4e I l ln es s o r ac c ld en t occurring when an employ- benefits and also is deemed irrelevant in the instant situa- ee e s, n o t o n d u t y w bn n o t se r v e t o disqualify such tion since the workers could not be termed to be strikerssemployee for benefits under this plan except where until their position regarding the strike was ascertained l eav e o f a b c e n t f o r mltr s e r vi e or or they publicly demonstrated their support for the eav e o f absen c e grne fo r psl sinesc or strike. There was no showing that the strikers or thel ay o f a catio n . Union caused Respondent any concern that the continu- ation of sickness and disability payments would have re- sulted in the lengthening of the strike or caused objec- tionable activity. Accordingly, it is concluded that Re- 12. This plan is entirely voluntary on the part of spondent has failed to present a valid business reason for the Company and benefits hereunder shall not be abrogating these employees' rights to election under Sec- subject to assignment, garnishment, attachment, or tion 7 to join or refrain from joining the strike for valid execution. Neither shall this Plan be construed to business reasons that outweigh the injury done to these give any employee the right to be retained in the employees by denying them such an election. It is also service of the Company or entitle him or her to concluded that there is a direct link between the decision benefits hereunder after his or her separation from not to schedule work, not to pay sickness and disability service. payments to these employees solely because of the strike, 13. In the application of this Plan, the records of which is a protected concerted activity,.the Company shall be conclusive in determining an Initially, Respondent argues that under the Texaco ac- employee's length of service, salary, and wages. cident and sickness benefit fund, which was negotiated 14. The decision of the Company shall be final into the labor agreement, Texaco has reserved the right and conclusive with respect to every question to terminate accident and sickness benefits and to require which may arise relating to either the interpretation the employee to come forward and present satisfactory or administration of this Plan. evidence of entitlement to such benefits. The notice posted at the plant and distributed to all the employees All employees are covered by the plan, and the rules do provides, as pertinent: not create special exceptions for strikes or strikers. That the Union agreed to article VIII, section 2, of the 1. If you are unable to report for work as a result applicable agreement prior to seeking reopening of the of accident, illness or for any other reason, you contract does not denote an express waiver of employee must call your supervisor, or the Night Foreman, rights to accident and sickness benefits. That section of when applicable, as early as possible and give the the contract provides that the accident and sickness reason for the absence, the expected duration of the absence, and any other information the supervisor Jt. Exh. 5. TEXACO OIL COMPANY 415 would be treated as if they had exercised their right of may need to plan for coverage for your vacant choice deprives them of their options guaranteed under shift. Section 7 to join or refrain from joining others in pro- 2. If you are unable to contact your supervisor or tected activity. An individual who is receiving sickness the Night Foreman, you may contact the Employee or disability payments when a strike commences, by defi- Relations Department. If you are unable to contact nition, is not ceasing to withhold services as are the any of these, you must leave a number where you strikers, and therefore must be afforded the protection of may be reached. Section 7 to exercise his option of joining or refraining 3. You should personally report your absence from joining the strikers. By terminating the sickness and unless you are physically unable to do so. If you are disability payments, Respondent in fact presumed such unable to make the call yourself, your spouse or an election, based on the actions of the other employees,' other family member may call for you following the The fact that in the instant case Respondent notified procedure outlined in 1. and 2. above. all employees that their benefits would be terminated at 4. Failure to report an absence, or failure to the commencement of the strike does not present a situa- properly notify supervision, will result in the ab- tion so distinguishable from Emerson Electric as to war- sen c e being considered as AWOL. rant the application of a different standard of behavior At the inception of the various illnesses of the six em- warranting a different result. In the instant situation, the ployees here under consideration, they abided by the re- motivating factor for the termination of the payments porting of absence procedures as outlined in the above- was the strike. Work would have been scheduled for all q ed memorandum, which is Respondent's Exhibit 1. hourly employees except for the strike. Respondent, ad- There is no showing regarding a frequency of reporting mittedly, did not ascertain whether all employees sup- requirement being imposed by the supervisors or other ported the strike. Furthermore, Respondent failed to individuals to whom the initial reports were given. demonstrate that the situation had such a potential for The argument that the negotiation of accident and violence or that the strikers' conduct was so egregious as sickness benefits into the agreement permitted obviating to warrant abrogation of the normal protections afforded such terms of the provision in the benefit plan'I is unper- under Section 7 of the Act. Furthermore, even if some of suasive. The rules governing the plan provide: the strikers' activities were shown to be egregious, that 4. In o a o would have been subsequent to the deprivation of the4e I l ln es s o r ac c ld en t occurring when an employ- benefits and also is deemed irrelevant in the instant situa- ee e s, n o t o n d u t y w bn n o t se r v e t o disqualify such tion since the workers could not be termed to be strikerssemployee for benefits under this Plan except where until their position regarding the strike was ascertained l eav e o f a b c e n t f o r mltr s e r vi e or or they publicly demonstrated their support for the eav e o f absen c e granted for psl sinesc or strike. There was no showing that the strikers or thel ay o f a catio n . Union caused Respondent any concern that the continu- ation of sickness and disability payments would have re- sulted in the lengthening of the strike or caused objec- tionable activity. Accordingly, it is concluded that Re- 12. This plan is entirely voluntary on the part of spondent has failed to present a valid business reason for the Company and benefits hereunder shall not be abrogating these employees' rights to election under Sec- subject to assignment, garnishment, attachment, or tion 7 to join or refrain from joining the strike for valid execution. Neither shall this Plan be construed to business reasons that outweigh the injury done to these give any employee the right to be retained in the employees by denying them such an election. It is also service of the Company or entitle him or her to concluded that there is a direct link between the decision benefits hereunder after his or her separation from not to schedule work, not to pay sickness and disability service. payments to these employees solely because of the strike, 13. In the application of this Plan, the records of which is a protected concerted activity,.the Company shall be conclusive in determining an Initially, Respondent argues that under the Texaco ac- employee's length of service, salary, and wages. cident and sickness benefit fund, which was negotiated 14. The decision of the Company shall be final into the labor agreement, Texaco has reserved the right and conclusive with respect to every question to terminate accident and sickness benefits and to require which may arise relating to either the interpretation the employee to come forward and present satisfactory or administration of this Plan. evidence of entitlement to such benefits. The notice posted at the plant and distributed to all the employees All employees are covered by the plan, and the rules do provides, as pertinent: not create special exceptions for strikes or strikers. That the Union agreed to article VIII, section 2, of the 1. If you are unable to report for work as a result applicable agreement prior to seeking reopening of the of accident, illness or for any other reason, you contract does not denote an express waiver of employee must call your supervisor, or the Night Foreman, rights to accident and sickness benefits. That section of when applicable, as early as possible and give the the contract provides that the accident and sickness reason for the absence, the expected duration of the absence, and any other information the supervisor Jt. Exh. 5. TEXACO OIL COMPANY 415 would be treated as if they had exercised their right of may need to plan for coverage for your vacant choice deprives them of their options guaranteed under shift. Section 7 to join or refrain from joining others in pro- 2. If you are unable to contact your supervisor or tected activity. An individual who is receiving sickness the Night Foreman, you may contact the Employee or disability payments when a strike commences, by defi- Relations Department. If you are unable to contact nition, is not ceasing to withhold services as are the any of these, you must leave a number where you strikers, and therefore must be afforded the protection of may be reached. Section 7 to exercise his option of joining or refraining 3. You should personally report your absence from joining the strikers. By terminating the sickness and unless you are physically unable to do so. If you are disability payments, Respondent in fact presumed such unable to make the call yourself, your spouse or an election, based on the actions of the other employees,' other family member may call for you following the The fact that in the instant case Respondent notified procedure outlined in 1. and 2. above. all employees that their benefits would be terminated at 4. Failure to report an absence, or failure to the commencement of the strike does not present a situa- properly notify supervision, will result in the ab- tion so distinguishable from Emerson Electric as to war- sen c e being considered as AWOL. rant the application of a different standard of behavior At the inception of the various illnesses of the six em- warranting a different result. In the instant situation, the ployees here under consideration, they abided by the re- motivating factor for the termination of the payments porting of absence procedures as outlined in the above- was the strike. Work would have been scheduled for all q ed memorandum, which is Respondent's Exhibit 1. hourly employees except for the strike. Respondent, ad- There is no showing regarding a frequency of reporting mittedly, did not ascertain whether all employees sup- requirement being imposed by the supervisors or other ported the strike. Furthermore, Respondent failed to individuals to whom the initial reports were given. demonstrate that the situation had such a potential for The argument that the negotiation of accident and violence or that the strikers' conduct was so egregious as sickness benefits into the agreement permitted obviating to warrant abrogation of the normal protections afforded such terms of the provision in the benefit plan 1I is unper- under Section 7 of the Act. Furthermore, even if some of suasive. The rules governing the plan provide: the strikers' activities were shown to be egregious, that 4. In o a o would have been subsequent to the deprivation of the4e I l ln es s o r ac c ld en t occurring when an employ- benefits and also is deemed irrelevant in the instant situa- ee e s, n o t o n d u t y w bn n o t se r v e t o disqualify such tion since the workers could not be termed to be strikerssemployee for benefits under this Plan except where until their position regarding the strike was ascertained l eav e o f a b c e n t f o r mltr s e r vi e or or they publicly demonstrated their support for the eav e o f absen c e granted for psl sinesc or strike. There was no showing that the strikers or thel ay o f a catio n . Union caused Respondent any concern that the continu- ation of sickness and disability payments would have re- sulted in the lengthening of the strike or caused objec- tionable activity. Accordingly, it is concluded that Re- 12. This plan is entirely voluntary on the part of spondent has failed to present a valid business reason for the Company and benefits hereunder shall not be abrogating these employees' rights to election under Sec- subject to assignment, garnishment, attachment, or tion 7 to join or refrain from joining the strike for valid execution. Neither shall this Plan be construed to business reasons that outweigh the injury done to these give any employee the right to be retained in the employees by denying them such an election. It is also service of the Company or entitle him or her to concluded that there is a direct link between the decision benefits hereunder after his or her separation from not to schedule work, not to pay sickness and disability service. payments to these employees solely because of the strike, 13. In the application of this Plan, the records of which is a protected concerted activity,.the Company shall be conclusive in determining an Initially, Respondent argues that under the Texaco ac- employee's length of service, salary, and wages. cident and sickness benefit fund, which was negotiated 14. The decision of the Company shall be final into the labor agreement, Texaco has reserved the right and conclusive with respect to every question to terminate accident and sickness benefits and to require which may arise relating to either the interpretation the employee to come forward and present satisfactory or administration of this Plan. evidence of entitlement to such benefits. The notice posted at the plant and distributed to all the employees All employees are covered by the plan, and the rules do provides, as pertinent: not create special exceptions for strikes or strikers. That the Union agreed to article VIII, section 2, of the 1. If you are unable to report for work as a result applicable agreement prior to seeking reopening of the of accident, illness or for any other reason, you contract does not denote an express waiver of employee must call your supervisor, or the Night Foreman, rights to accident and sickness benefits. That section of when applicable, as early as possible and give the the contract provides that the accident and sickness reason for the absence, the expected duration of the absence, and any other information the supervisor Jt. Exh. 5. TEXACO OIL COMPANY 415 would be treated as if they had exercised their right of may need to plan for coverage for your vacant choice deprives them of their options guaranteed under shift. Section 7 to join or refrain from joining others in pro- 2. If you are unable to contact your supervisor or tected activity. An individual who is receiving sickness the Night Foreman, you may contact the Employee or disability payments when a strike commences, by defi- Relations Department. If you are unable to contact nition, is not ceasing to withhold services as are the any of these, you must leave a number where you strikers, and therefore must be afforded the protection of may be reached. Section 7 to exercise his option of joining or refraining 3. You should personally report your absence from joining the strikers. By terminating the sickness and unless you are physically unable to do so. If you are disability payments, Respondent in fact presumed such unable to make the call yourself, your spouse or an election, based on the actions of the other employees,' other family member may call for you following the The fact that in the instant case Respondent notified procedure outlined in 1. and 2. above. all employees that their benefits would be terminated at 4. Failure to report an absence, or failure to the commencement of the strike does not present a situa- properly notify supervision, will result in the ab- tion so distinguishable from Emerson Electric as to war- sen c e being considered as AWOL. rant the application of a different standard of behavior At the inception of the various illnesses of the six em- warranting a different result. In the instant situation, the ployees here under consideration, they abided by the re- motivating factor for the termination of the payments porting of absence procedures as outlined in the above- was the strike. Work would have been scheduled for all q ed memorandum, which is Respondent's Exhibit 1. hourly employees except for the strike. Respondent, ad- There is no showing regarding a frequency of reporting mittedly, did not ascertain whether all employees sup- requirement being imposed by the supervisors or other ported the strike. Furthermore, Respondent failed to individuals to whom the initial reports were given. demonstrate that the situation had such a potential for The argument that the negotiation of accident and violence or that the strikers' conduct was so egregious as sickness benefits into the agreement permitted obviating to warrant abrogation of the normal protections afforded such terms of the provision in the benefit plan'I is unper- under Section 7 of the Act. Furthermore, even if some of suasive. The rules governing the plan provide: the strikers' activities were shown to be egregious, that 4. In o a o would have been subsequent to the deprivation of the4e I l ln es s o r ac c ld en t occurring when an employ- benefits and also is deemed irrelevant in the instant situa- ee e s, n o t o n d u t y w bn n o t se r v e t o disqualify such tion since the workers could not be termed to be strikerssemployee for benefits under this Plan except where until their position regarding the strike was ascertained l eav e o f a b c e n t f o r mltr s e r vi e or or they publicly demonstrated their support for the eav e o f absen c e granted for msl sinesc or strike. There was no showing that the strikers or thel ay o f a catio n . Union caused Respondent any concern that the continu- ation of sickness and disability payments would have re- sulted in the lengthening of the strike or caused objec- tionable activity. Accordingly, it is concluded that Re- 12. This plan is entirely voluntary on the part of spondent has failed to present a valid business reason for the Company and benefits hereunder shall not be abrogating these employees' rights to election under Sec- subject to assignment, garnishment, attachment, or tion 7 to join or refrain from joining the strike for valid execution. Neither shall this Plan be construed to business reasons that outweigh the injury done to these give any employee the right to be retained in the employees by denying them such an election. It is also service of the Company or entitle him or her to concluded that there is a direct link between the decision benefits hereunder after his or her separation from not to schedule work, not to pay sickness and disability service. payments to these employees solely because of the strike, 13. In the application of this Plan, the records of which is a protected concerted activity,.the Company shall be conclusive in determining an Initially, Respondent argues that under the Texaco ac- employee's length of service, salary, and wages. cident and sickness benefit fund, which was negotiated 14. The decision of the Company shall be final into the labor agreement, Texaco has reserved the right and conclusive with respect to every question to terminate accident and sickness benefits and to require which may arise relating to either the interpretation the employee to come forward and present satisfactory or administration of this Plan. evidence of entitlement to such benefits. The notice posted at the plant and distributed to all the employees All employees are covered by the plan, and the rules do provides, as pertinent: not create special exceptions for strikes or strikers. That the Union agreed to article VIII, section 2, of the 1. If you are unable to report for work as a result applicable agreement prior to seeking reopening of the of accident, illness or for any other reason, you contract does not denote an express waiver of employee must call your supervisor, or the Night Foreman, rights to accident and sickness benefits. That section of when applicable, as early as possible and give the the contract provides that the accident and sickness reason for the absence, the expected duration of the absence, and any other information the supervisor Jt. Exh. 5. TEXACO OIL COMPANY 415 would be treated as if they had exercised their right of may need to plan for coverage for your vacant choice deprives them of their options guaranteed under shift. Section 7 to join or refrain from joining others in pro- 2. If you are unable to contact your supervisor or tected activity. An individual who is receiving sickness the Night Foreman, you may contact the Employee or disability payments when a strike commences, by defi- Relations Department. If you are unable to contact nition, is not ceasing to withhold services as are the any of these, you must leave a number where you strikers, and therefore must be afforded the protection of may be reached. Section 7 to exercise his option of joining or refraining 3. You should personally report your absence from joining the strikers. By terminating the sickness and unless you are physically unable to do so. If you are disability payments, Respondent in fact presumed such unable to make the call yourself, your spouse or an election, based on the actions of the other employees,' other family member may call for you following the The fact that in the instant case Respondent notified procedure outlined in 1. and 2. above. all employees that their benefits would be terminated at 4. F ai lu r e to report an absence, or failure to the commencement of the strike does not present a situa- properly notify supervision, will result in the ab- tion so distinguishable from Emerson Electric as to war- sen c e being considered as AWOL. rant the application of a different standard of behavior At the inception of the various illnesses of the six em- warranting a different result. In the instant situation, the ployees here under consideration, they abided by the re- motivating factor for the termination of the payments porting of absence procedures as outlined in the above- was the strike. Work would have been scheduled for all q ed memorandum, which is Respondent's Exhibit 1. hourly employees except for the strike. Respondent, ad- There is no showing regarding a frequency of reporting mittedly, did not ascertain whether all employees sup- requirement being imposed by the supervisors or other ported the strike. Furthermore, Respondent failed to individuals to whom the initial reports were given. demonstrate that the situation had such a potential for The argument that the negotiation of accident and violence or that the strikers' conduct was so egregious as sickness benefits into the agreement permitted obviating to warrant abrogation of the normal protections afforded such terms of the provision in the benefit plan 1I is unper- under Section 7 of the Act. Furthermore, even if some of suasive. The rules governing the plan provide: the strikers' activities were shown to be egregious, that 4. In o a o would have been subsequent to the deprivation of the4e I l ln es s o r ac c ld en t occurring when an employ- benefits and also is deemed irrelevant in the instant situa- ee e s, n o t o n d u t y w bn n o t se r v e t o disqualify such tion since the workers could not be termed to be strikerssemployee for benefits under this Plan except where until their position regarding the strike was ascertained l eav e o f a b c e n t f o r mltr s e r vi e or or they publicly demonstrated their support for the eav e o f absen c e granted for msl sinesc or strike. There was no showing that the strikers or thel ay o f a catio n . Union caused Respondent any concern that the continu- ation of sickness and disability payments would have re- sulted in the lengthening of the strike or caused objec- tionable activity. Accordingly, it is concluded that Re- 12. This plan is entirely voluntary on the part of spondent has failed to present a valid business reason for the Company and benefits hereunder shall not be abrogating these employees' rights to election under Sec- subject to assignment, garnishment, attachment, or tion 7 to join or refrain from joining the strike for valid execution. Neither shall this Plan be construed to business reasons that outweigh the injury done to these give any employee the right to be retained in the employees by denying them such an election. It is also service of the Company or entitle him or her to concluded that there is a direct link between the decision benefits hereunder after his or her separation from not to schedule work, not to pay sickness and disability service. payments to these employees solely because of the strike, 13. In the application of this Plan, the records of which is a protected concerted activity,.the Company shall be conclusive in determining an Initially, Respondent argues that under the Texaco ac- employee's length of service, salary, and wages. cident and sickness benefit fund, which was negotiated 14. The decision of the Company shall be final into the labor agreement, Texaco has reserved the right and conclusive with respect to every question to terminate accident and sickness benefits and to require which may arise relating to either the interpretation the employee to come forward and present satisfactory or administration of this Plan. evidence of entitlement to such benefits. The notice posted at the plant and distributed to all the employees All employees are covered by the plan, and the rules do provides, as pertinent: not create special exceptions for strikes or strikers. That the Union agreed to article VIII, section 2, of the 1. If you are unable to report for work as a result applicable agreement prior to seeking reopening of the of accident, illness or for any other reason, you contract does not denote an express waiver of employee must call your supervisor, or the Night Foreman, rights to accident and sickness benefits. That section of when applicable, as early as possible and give the the contract provides that the accident and sickness reason for the absence, the expected duration of the absence, and any other information the supervisor Jt. Exh. 5. TEXACO OIL COMPANY 415 would be treated as if they had exercised their right of may need to plan for coverage for your vacant choice deprives them of their options guaranteed under shift. Section 7 to join or refrain from joining others in pro- 2. If you are unable to contact your supervisor or tected activity. An individual who is receiving sickness the Night Foreman, you may contact the Employee or disability payments when a strike commences, by defi- Relations Department. If you are unable to contact nition, is not ceasing to withhold services as are the any of these, you must leave a number where you strikers, and therefore must be afforded the protection of may be reached. Section 7 to exercise his option of joining or refraining 3. You should personally report your absence from joining the strikers. By terminating the sickness and unless you are physically unable to do so. If you are disability payments, Respondent in fact presumed such unable to make the call yourself, your spouse or an election, based on the actions of the other employees,' other family member may call for you following the The fact that in the instant case Respondent notified procedure outlined in 1. and 2. above. all employees that their benefits would be terminated at 4. Failure t o report an absence, or failure to the commencement of the strike does not present a situa- properly notify supervision, will result in the ab- tion so distinguishable from Emerson Electric as to war- sen c e being considered as AWOL. rant the application of a different standard of behavior At the inception of the various illnesses of the six em- warranting a different result. In the instant situation, the ployees here under consideration, they abided by the re- motivating factor for the termination of the payments porting of absence procedures as outlined in the above- was the strike. Work would have been scheduled for all q ed memorandum, which is Respondent's Exhibit 1. hourly employees except for the strike. Respondent, ad- There is no showing regarding a frequency of reporting mittedly, did not ascertain whether all employees sup- requirement being imposed by the supervisors or other ported the strike. Furthermore, Respondent failed to individuals to whom the initial reports were given. demonstrate that the situation had such a potential for The argument that the negotiation of accident and violence or that the strikers' conduct was so egregious as sickness benefits into the agreement permitted obviating to warrant abrogation of the normal protections afforded such terms of the provision in the benefit plan'I is unper- under Section 7 of the Act. Furthermore, even if some of suasive. The rules governing the plan provide: the strikers' activities were shown to be egregious, that 4. In o a o would have been subsequent to the deprivation of the4e I l ln es s o r ac c ld en t occurring when an employ- benefits and also is deemed irrelevant in the instant situa- ee e s, n o t o n d u t y w bn n o t se r v e t o disqualify such tion since the workers could not be termed to be strikerssemployee for benefits under this Plan except where until their position regarding the strike was ascertained l eav e o f a b c e n t f o r mltr s e r vi e or or they publicly demonstrated their support for the eav e o f absen c e granted for msl sinesc or strike. There was no showing that the strikers or thel ay o f a catio n . Union caused Respondent any concern that the continu- ation of sickness and disability payments would have re- sulted in the lengthening of the strike or caused objec- tionable activity. Accordingly, it is concluded that Re- 12. This plan is entirely voluntary on the part of spondent has failed to present a valid business reason for the Company and benefits hereunder shall not be abrogating these employees' rights to election under Sec- subject to assignment, garnishment, attachment, or tion 7 to join or refrain from joining the strike for valid execution. Neither shall this Plan be construed to business reasons that outweigh the injury done to these give any employee the right to be retained in the employees by denying them such an election. It is also service of the Company or entitle him or her to concluded that there is a direct link between the decision benefits hereunder after his or her separation from not to schedule work, not to pay sickness and disability service. payments to these employees solely because of the strike, 13. In the application of this Plan, the records of which is a protected concerted activity,.the Company shall be conclusive in determining an Initially, Respondent argues that under the Texaco ac- employee's length of service, salary, and wages. cident and sickness benefit fund, which was negotiated 14. The decision of the Company shall be final into the labor agreement, Texaco has reserved the right and conclusive with respect to every question to terminate accident and sickness benefits and to require which may arise relating to either the interpretation the employee to come forward and present satisfactory or administration of this Plan. evidence of entitlement to such benefits. The notice posted at the plant and distributed to all the employees All employees are covered by the plan, and the rules do provides, as pertinent: not create special exceptions for strikes or strikers. That the Union agreed to article VIII, section 2, of the 1. If you are unable to report for work as a result applicable agreement prior to seeking reopening of the of accident, illness or for any other reason, you contract does not denote an express waiver of employee must call your supervisor, or the Night Foreman, rights to accident and sickness benefits. That section of when applicable, as early as possible and give the the contract provides that the accident and sickness reason for the absence, the expected duration of the absence, and any other information the supervisor Jt. Exh. 5. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD benefit plan is incorporated "and made a part of this Board's decision, rather, requires the Company to follow Agreement subject to all the provisions of the Plans a certain procedure to insure the protection of Section 7 which we will determine all the questions arising under rights prior to making the determination regarding the it in connection with the Plans, except that the Company individual employees' qualification for these benefits. Ac- agrees it will not voluntarily discontinue, change or cording to the testimony of Floyd M. Chaney, the Com- modify such Plans during the term of this Agreement in pany made its decision to terminate the benefits to the six such a way as to decrease the benefits under said Plans employees predicated upon the assumption that the em- to any employee covered by this Agreement." ployees supported the strike. It was this basis for the ter- The Company's position that this provision is a waiver mination of a particular employee's benefits, i.e., the as- of employees' rights because the protections of the agree- sumption that they supported the strike, that was found ment were abrogated by the request for reopening and objectionable in the Emerson Electric decision. the strike pursuant to the reopener clause is unpersua- Respondent also argues that to require the Company sive. It is well established that any waiver of rights pro- to continue paying the strikers accident and sickness tected by Section 7 of the Act must be clearly and ex- benefits would require the Company to finance the plicitly expressed. And there was no showing that such strike. This argument is not persuasive because Emerson clear explicit expression had been agreed to by the clear explicit expression had been agreed to by the Electric only requires the Company to ascertain if the six employees involved herinledges the Company and employees receiving accident and sickness benefits do, in disavowed the strike, the entitlement to benefits may fact, support the stke. The fact that the Company could have been preserved. The Emerson Electric decision ex- pick and choose whom it wishes to retain as beneficiaries pressly discontinued this requirement which Respondent under the accident and sickness benefit plan as indicated now seeks to reinstitute. by its statement made January 8 that it would continue It is further found that the Company's argument that paying a certain class of employee beneficiaries demon- the failure of the employees to keep the Company in- strates that it could similarly ascertain which employees formed as to their status on disability was in contraven- were in fact supporters of the strike rather than assuming tion of company policy, that the company policy was a that all employees did, in fact, support the strike. The proper requirement that the Union bargained away, and failure to ascertain what the employees' positions were that the failure to meet this bargained-away requirement with regard to the strike, cojoined with Chaney's admis- made it a matter of the Company's right to terminate the sion that if an individual wished to return to work he accident and sickness benefits and to refuse to pay them would permit them to return to work, and considering after the failure to declare they were disabled at the that these employees could not be considered willfully commencement of the strike is unpersuasive. As previ- withholding services while deemed medically unable to ously indicated, the company policy does not clearly de- work, or until they publicly demonstrated support for scribe the frequency of such reporting but does state that the strike, leads to the imposing of sanctions because such reporting is necessary for coverage of vacant shifts. other employees in the unit went out on strike, an action During the strike, the need for continued reporting may found violative of the Act in the Emerson Electric deci- have been obviated under the provisions of section 1 of sion. Inasmuch as the Emerson Electric and Southwestern the notice posted by the Company and the fact that the Electric cases found the employees have a Section 7 right Company has not established a clearly expressed proce- to refrain from revealing their strike sympathies when dure for notifying the Company in the event of a con- sick or disabled, there must be a clear, unmistakable, and tinuing absence in any or all of the cases here under con- unequivocal waiver of such right to refrain from reveal- sideration, it cannot be assumed that in each of the cases ing their sympathies. See, for example, Keller-Crescent here involved the employee failed to comply with the Company, a Division of Mosler, 217 NLRB 685 (1975), en- company policy. In this proceeding, it was shown that forcement denied 538 F.2d 1291 (7th Cir. 1976). all six employees totally qualified to receive accident and That Respondent indicated that the Union may disci- sickness benefits. There was no clear showing that there pline a member if they acted to hinder a strike does not is a set procedure for the retention of eligibility in the e a even absent a union-security provision in the collective- event of a strike under the reporting of absence policy or event of a strike under the reporting of absence policy or bargaining agreement, infer that the employees who join otherwise, that was explicitly violated by all or any of the Union did so voluntarily and, therefore were infer- the six employees whose benefits were terminated. en l in supp s t ri he B o ar e E e r- In fact, the Company did not choose to suspend the entially port of the strike. The Board, in the Emer- cent and sickness benefit plan as to all employees, as son Electric decision, specifically overruled this reasoning accident and sickness benefit plan as to all employees, as . t . .. previously indicated; it terminated the accident and sick- n the Southwestern Electric Power Company decision. As ness benefit plan only to those employees whose injuries then Chairman Fanning noted in his dissent in the above- ness benefit plan only to those employees whose injuries quoted portion, "it is a far cry for this Board to require were not industrial injuries. As a practical matter, the de- oted portio, "it s a far for ths Board to require cision in Emerson Electric does not prevent the Compa- dt a t u thedisavow legal strike action by their uion ny, as indicated in the contract, from terminating acci- d u ring ther sck leave i order to receve their sick dent and sickness benefits during the strike.'5 The pay." For that reason, the Board, in Emerson Electric, dnan sikesb____netsd__ringthestsupra, requires the employer to first acquire information " As provided in art. XV of the agreement, "should the union exercise indicative of the employees' public support for the strike its right to strike as provided under 2(b) above, all obligations imposed upon the parties to this Labor Agreement will be suspended with the and until it is mutually agreeable to both parties to reimpose said obliga- commencement of such strike and shall continue to be suspended, unless tions." 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD benefit plan is incorporated "and made a part of this Board's decision, rather, requires the Company to follow Agreement subject to all the provisions of the Plans a certain procedure to insure the protection of Section 7 which we will determine all the questions arising under rights prior to making the determination regarding the it in connection with the Plans, except that the Company individual employees' qualification for these benefits. Ac- agrees it will not voluntarily discontinue, change or cording to the testimony of Floyd M. Chaney, the Com- modify such Plans during the term of this Agreement in pany made its decision to terminate the benefits to the six such a way as to decrease the benefits under said Plans employees predicated upon the assumption that the em- to any employee covered by this Agreement." ployees supported the strike. It was this basis for the ter- The Company's position that this provision is a waiver mination of a particular employee's benefits, i.e., the as- of employees' rights because the protections of the agree- sumption that they supported the strike, that was found ment were abrogated by the request for reopening and objectionable in the Emerson Electric decision. the strike pursuant to the reopener clause is unpersua- Respondent also argues that to require the Company sive. It is well established that any waiver of rights pro- to continue paying the strikers accident and sickness tected by Section 7 of the Act must be clearly and ex- bni w r ° C t f the plicitly expressed. And there was no showing that such benefis argume thersuany because Eme clear explicit expression had been agreed to by the Etric only rguies t pasyve ase ith Union. The Company acknowledges that, if any of the E ect rl c o n ye ree u in es t h e Company to ascertain if the six employees involved herein called the Company and femployees receiving accident and sickness benefits do, in disavowed the strike, the entitlement to benefits may fact, supp^ t h e st n k e. T h e {a ct that the Company could have been preserved. The Emerson Electric decision ex- pick a nd choose whom it wishes to retain as beneficiaries pressly discontinued this requirement which Respondent u nd e r the accident and sickness benefit plan as indicated now seeks to reinstitute. by its statement made January 8 that it would continue It is further found that the Company's argument that paying a certain class of employee beneficiaries demon- the failure of the employees to keep the Company in- strates that it could similarly ascertain which employees formed as to their status on disability was in contraven- were in fact supporters of the strike rather than assuming tion of company policy, that the company policy was a that all employees did, in fact, support the strike. The proper requirement that the Union bargained away, and failure to ascertain what the employees' positions were that the failure to meet this bargained-away requirement with regard to the strike, cojoined with Chaney's admis- made it a matter of the Company's right to terminate the sion that if an individual wished to return to work he accident and sickness benefits and to refuse to pay them would permit them to return to work, and considering after the failure to declare they were disabled at the that these employees could not be considered willfully commencement of the strike is unpersuasive. As previ- withholding services while deemed medically unable to ously indicated, the company policy does not clearly de- work, or until they publicly demonstrated support for scribe the frequency of such reporting but does state that the strike, leads to the imposing of sanctions because such reporting is necessary for coverage of vacant shifts. other employees in the unit went out on strike, an action During the strike, the need for continued reporting may found violative of the Act in the Emerson Electric deci- have been obviated under the provisions of section 1 of sion. Inasmuch as the Emerson Electric and Southwestern the notice posted by the Company and the fact that the Electric cases found the employees have a Section 7 right Company has not established a clearly expressed proce- to refrain from revealing their strike sympathies when dure for notifying the Company in the event of a con- sick or disabled, there must be a clear, unmistakable, and tinuing absence in any or all of the cases here under con- unequivocal waiver of such right to refrain from reveal- sideration, it cannot be assumed that in each of the cases ing their sympathies. See, for example, Keller-Crescent here involved the employee failed to comply with the Company, a Division ofMosler, 217 NLRB 685 (1975), en- company policy. In this proceeding, it was shown that forcement denied 538 F.2d 1291 (7th Cir. 1976). all six employees totally qualified to receive accident and T Respondent indicated that the Union may disci- sickness benefits. There was no clear showing that there p a er if they acted to hinder a strike does not, is a set procedure for the retention of eligibility in the e a a uinert 11 i event of a strike under the reporting of absence policy or barg ai n i a infer ta the coll oin otherwise, that was explicitly violated by all or any of btheaUnin direementaily at therefore, who in the six employees whose benefits were terminated. e n ll n suppo of th rike The Bord, wete Emer- In fact, the Company did not choose to suspend the sen t Eec y ridsuppon, o f the stnike. The Board, ti the Emer- accident and sickness benefit plan as to all employees, as is un Electric decision, specifically overruled this reasoning previously indicated; it terminated the accident and sick- thn ChimSouthwestern Electric Power Company decision. As ness benefit plan only to those employees whose injuries en Chairman Fanning noted in his dissent ,n the above- were not industrial injuries. As a practical matter, the de- o t ed pthey s"av tw s a f ar ike f o r t s Board to require cision in Emerson Electric does not prevent the Compa- d t ua t they disavow legal strike action by their union ny, as indicated in the contract, from terminating acci- p d u r .n" their sick leave B order to receive their sick dent and sickness benefits during the strike.' 5 The Pay." F o r that '*eason, the Board, in Emerson Electric, dent and sickness bene__ts during the strike. Is The supra, requires the employer to first acquire information ** As provided in art. XV of the agreement, "should the union exercise indicative of the employees' public Support for the Strike its right to strike as provided under 2(b) above, all obligations imposed upon the parties to this Labor Agreement will be suspended with the and until it is mutually agreeable to both parties to reimpose said obliga- commencement of such strike and shall continue to be suspended, unless tions." 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD benefit plan is incorporated "and made a part of this Board's decision, rather, requires the Company to follow Agreement subject to all the provisions of the Plans a certain procedure to insure the protection of Section 7 which we will determine all the questions arising under rights prior to making the determination regarding the it in connection with the Plans, except that the Company individual employees' qualification for these benefits. Ac- agrees it will not voluntarily discontinue, change or cording to the testimony of Floyd M. Chaney, the Com- modify such Plans during the term of this Agreement in pany made its decision to terminate the benefits to the six such a way as to decrease the benefits under said Plans employees predicated upon the assumption that the em- to any employee covered by this Agreement." ployees supported the strike. It was this basis for the ter- The Company's position that this provision is a waiver mination of a particular employee's benefits, i.e., the as- of employees' rights because the protections of the agree- sumption that they supported the strike, that was found ment were abrogated by the request for reopening and objectionable in the Emerson Electric decision. the strike pursuant to the reopener clause is unpersua- Respondent also argues that to require the Company sive. It is well established that any waiver of rights pro- to continue paying the strikers accident and sickness tected by Section 7 of the Act must be clearly and ex- bni w r ° C t f the plicitly expressed. And there was no showing that such benefis argume thersuany because Eme clear explicit expression had been agreed to by the stric only rguies t pasyve ase ith Union. The Company acknowledges that, if any of the E ect rl c o n l y ree u in es t h e Company to ascertain if the six employees involved herein called the Company and femployees receiving accident and sickness benefits do, in disavowed the strike, the entitlement to benefits may fact, supp^ t h e st n k e. T h e {a ct that the Company could have been preserved. The Emerson Electric decision ex- pick and choose whom it wishes to retain as beneficiaries pressly discontinued this requirement which Respondent u nd e r the accident and sickness benefit plan as indicated now seeks to reinstitute. by its statement made January 8 that it would continue It is further found that the Company's argument that paying a certain class of employee beneficiaries demon- the failure of the employees to keep the Company in- strates that it could similarly ascertain which employees formed as to their status on disability was in contraven- were in fact supporters of the strike rather than assuming tion of company policy, that the company policy was a that all employees did, in fact, support the strike. The proper requirement that the Union bargained away, and failure to ascertain what the employees' positions were that the failure to meet this bargained-away requirement with regard to the strike, cojoined with Chaney's admis- made it a matter of the Company's right to terminate the sion that if an individual wished to return to work he accident and sickness benefits and to refuse to pay them would permit them to return to work, and considering after the failure to declare they were disabled at the that these employees could not be considered willfully commencement of the strike is unpersuasive. As previ- withholding services while deemed medically unable to ously indicated, the company policy does not clearly de- work, or until they publicly demonstrated support for scribe the frequency of such reporting but does state that the strike, leads to the imposing of sanctions because such reporting is necessary for coverage of vacant shifts. other employees in the unit went out on strike, an action During the strike, the need for continued reporting may found violative of the Act in the Emerson Electric deci- have been obviated under the provisions of section 1 of sion. Inasmuch as the Emerson Electric and Southwestern the notice posted by the Company and the fact that the Electric cases found the employees have a Section 7 right Company has not established a clearly expressed proce- to refrain from revealing their strike sympathies when dure for notifying the Company in the event of a con- sick or disabled, there must be a clear, unmistakable, and tinuing absence in any or all of the cases here under con- unequivocal waiver of such right to refrain from reveal- sideration, it cannot be assumed that in each of the cases ing their sympathies. See, for example, Keller-Crescent here involved the employee failed to comply with the Company, a Division of Mosier, 217 NLRB 685 (1975), en- company policy. In this proceeding, it was shown that forcement denied 538 F.2d 1291 (7th Cir. 1976). all six employees totally qualified to receive accident and T Respondent indicated that the Union may disci- sickness benefits. There was no clear showing that there p a er if they acted to hinder a strike does not, is a set procedure for the retention of eligibility in the e a a uinert 11 i event of a strike under the reporting of absence policy or barg ai n i a infe r ta the coll oin otherwise, that was explicitly violated by all or any of btheaUnin direementaily at therefore, who in the six employees whose benefits were terminated. e n ll n so of the sreThe Bord, wete Emer- In fact, the Company did not choose to suspend the sen t Eec y ridsuppon, of the stnike. The Board, in the Emer- accident and sickness benefit plan as to all employees, as is un Electric decision, specifically overruled this reasoning previously indicated; it terminated the accident and sick- thn ChimSouthwestern Electric Power Company decision. As ness benefit plan only to those employees whose injuries en Chairman Fanning noted in his dissent in the above- were not industrial injuries. As a practical matter, the de- o t ed pthey s"av tw s a f ar c r y f o r t ik s Board to require cision in Emerson Electric does not prevent the Compa- d t ua t they disavow legal strike action by their union ny, as indicated in the contract, from terminating acci- p d u r .n" their sick leave B order to receive their sick dent and sickness benefits during the strike.' 5 The Pay. F o r that reason, the Board, in Emerson Electric, dent and sickness bene__ts during the strike. Is The supra, requires the employer to first acquire information ** As provided in art. XV of the agreement, "should the union exercise indicative of the employees' public Support for the Strike its right to strike as provided under 2(b) above, all obligations imposed upon the parties to this Labor Agreement will be suspended with the and until it is mutually agreeable to both parties to reimpose said obliga- commencement of such strike and shall continue to be suspended, unless tions." 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD benefit plan is incorporated "and made a part of this Board's decision, rather, requires the Company to follow Agreement subject to all the provisions of the Plans a certain procedure to insure the protection of Section 7 which we will determine all the questions arising under rights prior to making the determination regarding the it in connection with the Plans, except that the Company individual employees' qualification for these benefits. Ac- agrees it will not voluntarily discontinue, change or cording to the testimony of Floyd M. Chaney, the Com- modify such Plans during the term of this Agreement in pany made its decision to terminate the benefits to the six such a way as to decrease the benefits under said Plans employees predicated upon the assumption that the em- to any employee covered by this Agreement." ployees supported the strike. It was this basis for the ter- The Company's position that this provision is a waiver mination of a particular employee's benefits, i.e., the as- of employees' rights because the protections of the agree- sumption that they supported the strike, that was found ment were abrogated by the request for reopening and objectionable in the Emerson Electric decision. the strike pursuant to the reopener clause is unpersua- Respondent also argues that to require the Company sive. It is well established that any waiver of rights pro- to continue paying the strikers accident and sickness tected by Section 7 of the Act must be clearly and ex- bni w r ° C t f the plicitly expressed. And there was no showing that such benefis argume thersuany because Eme clear explicit expression had been agreed to by the stric only rguies t pasyve ase ith Union. The Company acknowledges that, if any of the E ect rl c o n ly ree u in es t h e Company to ascertain if the six employees involved herein called the Company and femployees receiving accident and sickness benefits do, in disavowed the strike, the entitlement to benefits may fact, supp^ t h e st n k e. T h e {a ct that the Company could have been preserved. The Emerson Electric decision ex- pick and choose whom it wishes to retain as beneficiaries pressly discontinued this requirement which Respondent u nd e r the accident and sickness benefit plan as indicated now seeks to reinstitute. by its statement made January 8 that it would continue It is further found that the Company's argument that paying a certain class of employee beneficiaries demon- the failure of the employees to keep the Company in- strates that it could similarly ascertain which employees formed as to their status on disability was in contraven- were in fact supporters of the strike rather than assuming tion of company policy, that the company policy was a that all employees did, in fact, support the strike. The proper requirement that the Union bargained away, and failure to ascertain what the employees' positions were that the failure to meet this bargained-away requirement with regard to the strike, cojoined with Chaney's admis- made it a matter of the Company's right to terminate the sion that if an individual wished to return to work he accident and sickness benefits and to refuse to pay them would permit them to return to work, and considering after the failure to declare they were disabled at the that these employees could not be considered willfully commencement of the strike is unpersuasive. As previ- withholding services while deemed medically unable to ously indicated, the company policy does not clearly de- work, or until they publicly demonstrated support for scribe the frequency of such reporting but does state that the strike, leads to the imposing of sanctions because such reporting is necessary for coverage of vacant shifts. other employees in the unit went out on strike, an action During the strike, the need for continued reporting may found violative of the Act in the Emerson Electric deci- have been obviated under the provisions of section 1 of sion. Inasmuch as the Emerson Electric and Southwestern the notice posted by the Company and the fact that the Electric cases found the employees have a Section 7 right Company has not established a clearly expressed proce- to refrain from revealing their strike sympathies when dure for notifying the Company in the event of a con- sick or disabled, there must be a clear, unmistakable, and tinuing absence in any or all of the cases here under con- unequivocal waiver of such right to refrain from reveal- sideration, it cannot be assumed that in each of the cases ing their sympathies. See, for example, Keller-Crescent here involved the employee failed to comply with the Company, a Division of Mosier, 217 NLRB 685 (1975), en- company policy. In this proceeding, it was shown that forcement denied 538 F.2d 1291 (7th Cir. 1976). all six employees totally qualified to receive accident and T Respondent indicated that the Union may disci- sickness benefits. There was no clear showing that there p a er if they acted to hinder a strike does not, is a set procedure for the retention of eligibility in the e a a uinert 11 i event of a strike under the reporting of absence policy or barg ai n i a infe r ta the coll oin otherwise, that was explicitly violated by all or any of btheaUnin direementaily at therefore, who in the six employees whose benefits were terminated. e n ll n so of the sreThe Bord, wete Emer- In fact, the Company did not choose to suspend the sen t Eec y ridsuppon, of the stnike. The Board, in the Emer- accident and sickness benefit plan as to all employees, as is un Electric decision, specifically overruled this reasoning previously indicated; it terminated the accident and sick- thn ChimSouthwestern Electric Power Company decision. As ness benefit plan only to those employees whose injuries en Chairman Fanning noted in his dissent in the above- were not industrial injuries. As a practical matter, the de- o t ed pthey s"av tw s a f ar c r y f o r t ik s Board to require cision in Emerson Electric does not prevent the Compa- d t ua t they disavow legal strike action by their union ny, as indicated in the contract, from terminating acci- p d u r .n" their sick leave B order to receive their sick dent and sickness benefits during the strike.' 5 The Pay. F o r that reason, the Board, in Emerson Electric, dent and sickness bene__ts during the strike. Is The supra, requires the employer to first acquire information ** As provided in art. XV of the agreement, "should the union exercise indicative of the employees' public Support for the Strike its right to strike as provided under 2(b) above, all obligations imposed upon the parties to this Labor Agreement will be suspended with the and until it is mutually agreeable to both parties to reimpose said obliga- commencement of such strike and shall continue to be suspended, unless tions." TEXACO OIL COMPANY 417 prior to the termination of sickness and disability bene- "The Remedy" section of this Decision for periods when fits. these employees were not participants in the strike. The argument by Respondent that the history of 100- 4. The aforesaid unfair labor practices are unfair labor percent support of the membership previously in other practices affecting commerce within the meaning of Sec- strikes of the bargaining unit's decision to strike, co- tion 2(6) and (7) of the Act. joined with the admission by the six employees involved herein that they would have honored the picket line had THE REMEDY they not been sick or disabled, and the fact that work was available but these employees did not seek it, does fo un d t h at Respondent has engaged certa not modify or abrogate the requirements of Emerson unfair labor practices, it will be recommended that Re- Electric. 16 As indicated above, the violation of the Act as spondent be required to cease and desist therefrom and found in Emerson Electric is the termination of accident to take certain affirmative action designed to effectuate and sickness benefits to employees who were found to be the policies of the Act. unable to work at the commencement of the strike be- It having been found that Respondent unlawfully with- cause other employees actively struck based upon the de- held sickness disability, occupational illness, and injury termination that the employees whose benefits were ter- benefit payments from the six employees listed during a minated were assumed to have ratified or supported the strike at times when they were not strike participants, strike. This assumption, as admitted in the record, vio- these employees should be reimbursed for benefits lost lates the employees' Section 7 rights to refrain from an- under these plans from January 8, 1980, the date the nouncing their position with regard to a strike. For the strike began, when these benefit payments were discon- above reasons, I find that Respondent violated Section tinued, until the dates shown next to the names of the re- 8(a)(3) and (1) of the Act by discontinuing sickness and spective employees: Peter J. Gottfried, February 11, disability benefits for the six employees from January 8 1980; Michael L. Wergin, February 21, 1980; William B. to the dates set forth above. Noell, March 24, 1980; James T. Lake, January 13, 1980; Robert G. Ravert, March 24, 1980; and John Vin, Unde- IV THE EFFECT OF THE UNFAIR LABOR PRACTICES termined Upon the foregoing findings of fact, conclusions of The activities of Respondent set forth in section III, law, and the entire record, and pursuant to Section 10(c) above, found to constitute unfair labor practices, occur- of the Act, I hereby issue the following recommended: ring in connection with its operations described in sec- tion I, above, have a close, intimate, and substantial rela- ORDER 17 tionship to trade, traffic, and commerce among the sev- T eral States and tend to lead to labor disputes burdening The Respondent, Texaco Oil Company, asper Wyo- and obstructing commerce and the free flow thereof. ming, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: CONCLUSIONS OF LAW (a) Withholding or announcing the withholding of sickness, disability, occupational illness, and injury bene- 1. Respondent is an employer engaged in commerce 1. Respondent is an employer engaged im commerce fits from employees during a strike for the purpose of co- within the meaning of Section 2(2), (6), and (7) of the e s ie o Act. ' ercing them or other employees in the exercise of their 2. Oil, Chemical and Atomic Workers International rights to belong to a union and engage in other protected 2. Oil, Chemical and Atomic Workers Internationalted atvie Union and its Local No. 2-230 are labor organizations concerted activities. within the meaning of Section 2(5) of the Act. (b) In any like or related manner interfering with, re- 3. Respondent has violated Section 8(a)(1) and (3) of straining, or coercing employees in the exercise of rights the Act by informing employees that it was withholding guaranteed them under Section 7 of the Act. payment of sickness and disability and occupational ill- 2. Take the following affirmative action deemed neces- ness and injury benefits during a strike, and withholding sary to effectuate the policies of the Act: such payments from the employees named below in (a) Make whole the employees listed in the section of this Decision entitled "The Remedy," in the manner set " Respondent argues that certain representations by the Union should forth therein, by paying to each whatever sickness and be binding on the employees on sickness and disability leave including disability or occupational illness and injury benefits were the fact that they did not protest the termination of the payments and due them during the period January 8, 1980, to April 1, that the six employees were scheduled for picket duty. These arguments overlook the fact that the Union, in its failure to protest, cannot be con- 1980, with interest, provided that no such payment shall strued as explicitly waiving any rights and the fact that the Union sched- be due for the periods subsequent to any employee's uled the six employees in question for picket duty was done at a time active participation in strike activity or public support preceding their ascertaining who was on sickness and disability at the th f time of the strike but was done weeks preceding the strike. This argu- ereo ment also overlooks the uncontroverted testimony that once it was learned that an employee in the unit was considered disabled or sick, or " In the event no exceptions are filed as provided by Sec. 102.46 of otherwise unable to work, the employee was explicitly not scheduled for the Rules and Regulations of the National Labor Relations Board, the picket duty nor was he required to engage in picket duty because such findings, conclusions, and recommended Order herein shall, as provided requirement was considered too dangerous for his safety, and the medical in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and determination of his disability or sickness was to be respected and was, in become its findings, conclusions, and Order, and all objections thereto fact, respected by the Union. shall be deemed waived for all purposes. TEXACO OIL COMPANY 417 prior to the termination of sickness and disability bene- "The Remedy" section of this Decision for periods when fits. these employees were not participants in the strike. The argument by Respondent that the history of 100- 4. The aforesaid unfair labor practices are unfair labor percent support of the membership previously in other practices affecting commerce within the meaning of Sec- strikes of the bargaining unit's decision to strike, co- tion 2(6) and (7) of the Act. joined with the admission by the six employees involved herein that they would have honored the picket line had THE REMEDY they not been sick or disabled, and the fact that work H f t R h e i was available but these employees did not seek it, does ^"e f o u n d t h a t Respondent has engaged in certain not modify or abrogate the requirements of Emerson u n f a ir la b o r Practices, it will be recommended that Re- Electric.1'6 As indicated above, the violation of the Act as spondent be required to cease and desist therefrom and found in Emerson Electric is the termination of accident to take certain affirmative action designed to effectuate and sickness benefits to employees who were found to be the policies of the Act. unable to work at the commencement of the strike be- It having been found that Respondent unlawfully with- cause other employees actively struck based upon the de- held sickness disability, occupational illness, and injury termination that the employees whose benefits were ter- benefit payments from the six employees listed during a minated were assumed to have ratified or supported the strike at times when they were not strike participants, strike. This assumption, as admitted in the record, vio- these employees should be reimbursed for benefits lost lates the employees' Section 7 rights to refrain from an- under these plans from January 8, 1980, the date the nouncing their position with regard to a strike. For the strike began, when these benefit payments were discon- above reasons, I find that Respondent violated Section tinued, until the dates shown next to the names of the re- 8(a)(3) and (1) of the Act by discontinuing sickness and spective employees: Peter J. Gottfried, February 11, disability benefits for the six employees from January 8 1980; Michael L. Wergin, February 21, 1980; William B. to the dates set forth above. Noell, March 24, 1980; James T. Lake, January 13, 1980; IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES R o b e r t G. R a v e r t , M a r c h 2 4 , 1 9 8 0 ; a n d J o h n V i n , U n d e - UPON COMMERCEtermined Upon the foregoing findings of fact, conclusions of The activities of Respondent set forth in section III, law, and the entire record, and pursuant to Section 10(c) above, found to constitute unfair labor practices, occur- of the Act, I hereby issue the following recommended: ring in connection with its operations described in sec- tion I, above, have a close, intimate, and substantial rela- ORDER 17 tionship to trade, traffic, and commerce among the sev- T R T Oil C C eral States and tend to lead to labor disputes burdening The Respondent, Texaco Oil Company, Casper Wyo- and obstructing commerce and the free flow thereof. ming, it s o ffic ers, agents, successors, and assigns, shall: 1. Cease and desist from: CONCLUSIONS OF LAW (a) Withholding or announcing the withholding of 1. Respondent is an employer engaged in commerce sickness, disability, occupational illness, and injury bene- 1. Respondent is an employer engaged in commerce < i i ir .... * . „ „ * ' ,/,-- , ,^ „,fits from employees during a strike for the purpose of co- within the meaning of Section 2(2), (6), and (7) of the ft fo e d at co- Act. ercing them or other employees in the exercise of their 2. Oil, Chemical and Atomic Workers International rights to belong to a union and engage in other protected 2. Oil, hemicaland Atoic Workrs IntenationateA * * *tes Union and its Local No. 2-230 are labor organizations concerted activities. within the meaning of Section 2(5) of the Act. (b I n any lik e o r r e l a t e d m a n n e r interfering with, re- 3. Respondent has violated Section 8(a)(l) and (3) of straining, or coercing employees in the exercise of rights the Act by informing employees that it was withholding guaranteed them under Section 7 of the Act. payment of sickness and disability and occupational ill- 2. T a k e t h e following affirmative action deemed neces- ness and injury benefits during a strike, and withholding s a r y t o effectuate the policies of the Act: such payments from the employees named below in (a) Make whole the employees listed in the section of this Decision entitled "The Remedy," in the manner set " Respondent argues that certain representations by the Union should forth therein, by paying to each whatever sickness and be binding on the employees on sickness and disability leave including disability or occupational illness and injury benefits were the fact that they did not protest the termination of the payments and due them during the period January 8, 1980, to April 1, that the six employees were scheduled for picket duty. These arguments overlook the fact that the Union, in its failure to protest, cannot be con- 1 9 8 0, with interest, provided that no such payment shall strued as explicitly waiving any rights and the fact that the Union sched- be due for the periods subsequent to any employee's uled the six employees in question for picket duty was done at a time active participation in Strike activity or public Support preceding their ascertaining who was on sickness and disability at the f time of the strike but was done weeks preceding the strike. This argu- thereof. ment also overlooks the uncontroverted testimony that once it was learned that an employee in the unit was considered disabled or sick, or " In the event no exceptions are filed as provided by Sec. 102.46 of otherwise unable to work, the employee was explicitly not scheduled for the Rules and Regulations of the National Labor Relations Board, the picket duty nor was he required to engage in picket duty because such findings, conclusions, and recommended Order herein shall, as provided requirement was considered too dangerous for his safety, and the medical in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and determination of his disability or sickness was to be respected and was, in become its findings, conclusions, and Order, and all objections thereto fact, respected by the Union. shall be deemed waived for all purposes. TEXACO OIL COMPANY 417 prior to the termination of sickness and disability bene- "The Remedy" section of this Decision for periods when fits. these employees were not participants in the strike. The argument by Respondent that the history of 100- 4. The aforesaid unfair labor practices are unfair labor percent support of the membership previously in other practices affecting commerce within the meaning of Sec- strikes of the bargaining unit's decision to strike, co- tion 2(6) and (7) of the Act. joined with the admission by the six employees involved herein that they would have honored the picket line had THE REMEDY they not been sick or disabled, and the fact that work H f t R h e i was available but these employees did not seek it, does ^"g f o u n d t h a t Respondent has engaged in certain not modify or abrogate the requirements of Emerson u n f a ir la b o r Practices, it will be recommended that Re- Electric.1'6 As indicated above, the violation of the Act as spondent be required to cease and desist therefrom and found in Emerson Electric is the termination of accident to take certain affirmative action designed to effectuate and sickness benefits to employees who were found to be the policies of the Act. unable to work at the commencement of the strike be- It having been found that Respondent unlawfully with- cause other employees actively struck based upon the de- held sickness disability, occupational illness, and injury termination that the employees whose benefits were ter- benefit payments from the six employees listed during a minated were assumed to have ratified or supported the strike at times when they were not strike participants, strike. This assumption, as admitted in the record, vio- these employees should be reimbursed for benefits lost lates the employees' Section 7 rights to refrain from an- under these plans from January 8, 1980, the date the nouncing their position with regard to a strike. For the strike began, when these benefit payments were discon- above reasons, I find that Respondent violated Section tinued, until the dates shown next to the names of the re- 8(a)(3) and (1) of the Act by discontinuing sickness and spective employees: Peter J. Gottfried, February 11, disability benefits for the six employees from January 8 1980; Michael L. Wergin, February 21, 1980; William B. to the dates set forth above. Noell, March 24, 1980; James T. Lake, January 13, 1980; IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES R o b e r t G. R a v e r t , M a r c h 2 4 , 1 9 8 0 ; a n d J o h n V i n , U n d e - UPON COMMERCEtermined Upon the foregoing findings of fact, conclusions of The activities of Respondent set forth in section III, law, and the entire record, and pursuant to Section 10(c) above, found to constitute unfair labor practices, occur- of the Act, I hereby issue the following recommended: ring in connection with its operations described in sec- tion I, above, have a close, intimate, and substantial rela- ORDER' 7 tionship to trade, traffic, and commerce among the sev- T R T Oil C C eral States and tend to lead to labor disputes burdening The Respondent, Texaco Oil Company, Casper Wyo- and obstructing commerce and the free flow thereof. ming, it s o ffic ers, agents, successors, and assigns, shall: 1. Cease and desist from: CONCLUSIONS OF LAW (a) Withholding or announcing the withholding of 1. Respondent is an employer engaged in commerce sickness, disability, occupational illness, and injury bene- 1. Respondent is an employer engaged in commerce < i i ir .... * . „ „ * ' ,/,-- , ,^ „,fits from employees during a strike for the purpose of co- within the meaning of Section 2(2), (6), and (7) of the ft fo e d at co- Act. ercing them or other employees in the exercise of their 2. Oil, Chemical and Atomic Workers International rights to belong to a union and engage in other protected 2. Oil, hemicaland Atoic Workrs IntenationateA * * *tes Union and its Local No. 2-230 are labor organizations concerted activities. within the meaning of Section 2(5) of the Act. (b I n any lik e o r r e l a t e d m a n n e r interfering with, re- 3. Respondent has violated Section 8(a)(l) and (3) of straining, or coercing employees in the exercise of rights the Act by informing employees that it was withholding guaranteed them under Section 7 of the Act. payment of sickness and disability and occupational ill- 2. T a k e t h e following affirmative action deemed neces- ness and injury benefits during a strike, and withholding s a r y t o effectuate the policies of the Act: such payments from the employees named below in (a) Make whole the employees listed in the section of this Decision entitled "The Remedy," in the manner set " Respondent argues that certain representations by the Union should forth therein, by paying to each whatever sickness and be binding on the employees on sickness and disability leave including disability or occupational illness and injury benefits were the fact that they did not protest the termination of the payments and due them during the period January 8, 1980, to April 1, that the six employees were scheduled for picket duty. These arguments overlook the fact that the Union, in its failure to protest, cannot be con- 1 9 8 0, with interest, provided that no such payment shall strued as explicitly waiving any rights and the fact that the Union sched- be due for the periods subsequent to any employee's uled the six employees in question for picket duty was done at a time active participation in Strike activity or public Support preceding their ascertaining who was on sickness and disability at the f time of the strike but was done weeks preceding the strike. This argu- thereof. ment also overlooks the uncontroverted testimony that once it was learned that an employee in the unit was considered disabled or sick, or " In the event no exceptions are filed as provided by Sec. 102.46 of otherwise unable to work, the employee was explicitly not scheduled for the Rules and Regulations of the National Labor Relations Board, the picket duty nor was he required to engage in picket duty because such findings, conclusions, and recommended Order herein shall, as provided requirement was considered too dangerous for his safety, and the medical in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and determination of his disability or sickness was to be respected and was, in become its findings, conclusions, and Order, and all objections thereto fact, respected by the Union. shall be deemed waived for all purposes. TEXACO OIL COMPANY 417 prior to the termination of sickness and disability bene- "The Remedy" section of this Decision for periods when fits. these employees were not participants in the strike. The argument by Respondent that the history of 100- 4. The aforesaid unfair labor practices are unfair labor percent support of the membership previously in other practices affecting commerce within the meaning of Sec- strikes of the bargaining unit's decision to strike, co- tion 2(6) and (7) of the Act. joined with the admission by the six employees involved herein that they would have honored the picket line had THE REMEDY they not been sick or disabled, and the fact that work H f t R h e i was available but these employees did not seek it, does ^"g f o u n d t h a t Respondent has engaged in certain not modify or abrogate the requirements of Emerson u n f a ir la b o r Practices, it will be recommended that Re- Electric.1'6 As indicated above, the violation of the Act as spondent be required to cease and desist therefrom and found in Emerson Electric is the termination of accident to take certain affirmative action designed to effectuate and sickness benefits to employees who were found to be the policies of the Act. unable to work at the commencement of the strike be- It having been found that Respondent unlawfully with- cause other employees actively struck based upon the de- held sickness disability, occupational illness, and injury termination that the employees whose benefits were ter- benefit payments from the six employees listed during a minated were assumed to have ratified or supported the strike at times when they were not strike participants, strike. This assumption, as admitted in the record, vio- these employees should be reimbursed for benefits lost lates the employees' Section 7 rights to refrain from an- under these plans from January 8, 1980, the date the nouncing their position with regard to a strike. For the strike began, when these benefit payments were discon- above reasons, I find that Respondent violated Section tinued, until the dates shown next to the names of the re- 8(a)(3) and (1) of the Act by discontinuing sickness and spective employees: Peter J. Gottfried, February 11, disability benefits for the six employees from January 8 1980; Michael L. Wergin, February 21, 1980; William B. to the dates set forth above. Noell, March 24, 1980; James T. Lake, January 13, 1980; IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES R o b e r t G. R a v e r t , M a r c h 2 4 , 1 9 8 0 ; a n d J o h n V i n , U n d e - UPON COMMERCEtermined Upon the foregoing findings of fact, conclusions of The activities of Respondent set forth in section III, law, and the entire record, and pursuant to Section 10(c) above, found to constitute unfair labor practices, occur- of the Act, I hereby issue the following recommended: ring in connection with its operations described in sec- tion I, above, have a close, intimate, and substantial rela- ORDER 17 tionship to trade, traffic, and commerce among the sev- T R T Oil C C eral States and tend to lead to labor disputes burdening The Respondent, Texaco Oil Company, Casper Wyo- and obstructing commerce and the free flow thereof. ming, it s o ffic ers, agents, successors, and assigns, shall: 1. Cease and desist from: CONCLUSIONS OF LAW (a) Withholding or announcing the withholding of 1. Respondent is an employer engaged in commerce sickness, disability, occupational illness, and injury bene- 1. Respondent is an employer engaged in commerce < i i ir .... * . „ „ * ' ,/,-- , ,^ „,fits from employees during a strike for the purpose of co- within the meaning of Section 2(2), (6), and (7) of the ft fo e d at co- Act. ercing them or other employees in the exercise of their 2. Oil, Chemical and Atomic Workers International rights to belong to a union and engage in other protected 2. Oil, hemicaland Atoic Workrs IntenationateA * * *tes Union and its Local No. 2-230 are labor organizations concerted activities. within the meaning of Section 2(5) of the Act. (b I n any lik e o r r e l a t e d m a n n e r interfering with, re- 3. Respondent has violated Section 8(a)(l) and (3) of straining, or coercing employees in the exercise of rights the Act by informing employees that it was withholding guaranteed them under Section 7 of the Act. payment of sickness and disability and occupational ill- 2. T a k e t h e following affirmative action deemed neces- ness and injury benefits during a strike, and withholding s a r y t o effectuate the policies of the Act: such payments from the employees named below in (a) Make whole the employees listed in the section of this Decision entitled "The Remedy," in the manner set " Respondent argues that certain representations by the Union should forth therein, by paying to each whatever Sickness and be binding on the employees on sickness and disability leave including disability or occupational illness and injury benefits were the fact that they did not protest the termination of the payments and due them during the period January 8, 1980, to April 1, that the six employees were scheduled for picket duty. These arguments overlook the fact that the Union, in its failure to protest, cannot be con- 1 9 8 0, with interest, provided that no such payment shall strued as explicitly waiving any rights and the fact that the Union sched- be due for the periods subsequent to any employee's uled the six employees in question for picket duty was done at a time active participation in Strike activity or public Support preceding their ascertaining who was on sickness and disability at the f time of the strike but was done weeks preceding the strike. This argu- thereof. ment also overlooks the uncontroverted testimony that once it was learned that an employee in the unit was considered disabled or sick, or " In the event no exceptions are filed as provided by Sec. 102.46 of otherwise unable to work, the employee was explicitly not scheduled for the Rules and Regulations of the National Labor Relations Board, the picket duty nor was he required to engage in picket duty because such findings, conclusions, and recommended Order herein shall, as provided requirement was considered too dangerous for his safety, and the medical in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and determination of his disability or sickness was to be respected and was, in become its findings, conclusions, and Order, and all objections thereto fact, respected by the Union. shall be deemed waived for all purposes. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Preserve and make available to the Board or its APPENDIX agents, upon request, all records necessary to analyze the amount due in the effectuation of this remedial order. NOTICE To EMPLOYEES POSTED BY ORDER OF THE (c) Post at the Respondent's place of business in POSTED BY ORD ER O F TH E NATIONAL LABOR RELATIONS BOARD Casper, Wyoming, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided An Agency of the United States Government by the Regional Director for Region 27, after being duly signed by its representatives, shall be posted by Respond- A ft e r a h ean n g a t which all sides had an opportunity to signed by its representatives shall be poted by R - present evidence and state their positions, the National ent immediately upon receipt thereof, and be maintained Labor Relations Board found that we have violated the by it for 60 consecutive days thereafter, in conspicuous National Labor Relations Act, as amended, and has or- places, including all places where notices to employees dered us to post this notice. are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, WE WILL Npaymen T withhold or announce that we will or covered by any other material. withhold payment of sickness and disability and oc- or covered by any other material. cupational illness and injury benefits from you (d) Notify the Regional Director for Region 27, in during a strike to discourae you or our oter em -. i.-~~ ',-ir.~~~~~~~ -i r during a strike to discourage you or our other em- writing, within 20 days from the date of Order, what ployees from belonging to a union or from engaging steps Respondent has taken to comply herewith. in other protected concerted activities. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce you in the exercise of rights guaranteed you by Section 7 of the Na- tional Labor Relations Act, as amended. WE WILL make the following employees whole, with interest, for sickness and disability or occupa- tional illness and injury benefit payments due them from the time such payments were withheld until their recovery and active participation in strike ac- tivity or the resumption of benefit payments, which- " In the event that this Order is enforced by a Judgment of a United ever is earlier: States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- Peter J. Gottfried James T. Lake ant to a Judgment of the United States Court of Appeals Enforcing an Michael L. Wergin Robert G. Ravert Order of the National Labor Relations Board." William B. Noell John Vin William B. Noell John VY TEXACO OIL COMPANY 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Preserve and make available to the Board or its APPENDIX agents, upon request, all records necessary to analyze the amount due in the effectuation of this remedial order. NOTICE To EMPLOYEES (c) Post at the Respondent's place of business in P OST E D BY O RD E R O F T H E Casper, Wyoming, copies of the attached notice marked NATIONAL LABOR RELATIONS BOARD "Appendix."" Copies of said notice, on forms provided A n A g e nc y o f t h e Unit ed S ta t es Government by the Regional Director for Region 27, after being duly Afe a h a ic a sd h a signed by fts representatives, shall be posted by Respond- A f t er a h eanin g a t which all sides had an opportunity to snimedbiatsrelypresntativeeipt shall be paintained byRespo- Present evidence and state their positions, the National ent immediately upon receipt thereof, and be maintained Labor Relations Board found that we have violated the by it for 60 consecutive days thereafter, in conspicuous National Labor Relations Act, as amended, and has or- places, including all places where notices to employees dered us to post this notice. are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, W E W I L L N pm T withhold or announce that we will or covered by any other material. withhold payment of sickness and disability and oc- (d) Notify the Regional Director for Region 27, in cupational illness and injury benefits from you (d) Notify the. Regional Directorfor Region 27, in during a strike to discourage you or our other em- writing, within 20 days from the date of Order, what steps Respondent has taken to comply herewith. in other protected concerted activities. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce you in the exercise of rights guaranteed you by Section 7 of the Na- tional Labor Relations Act, as amended. WE WILL make the following employees whole, with interest, for sickness and disability or occupa- tional illness and injury benefit payments due them from the time such payments were withheld until their recovery and active participation in strike ac- tivity or the resumption of benefit payments, which- " In the event that this Order is enforced by a Judgment of a United ever is earlier: States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- Peter J. Gottfried James T. Lake ant to a Judgment of the United States Court of Appeals Enforcing an Michael L. Wergin Robert G. Ravert Order of the National Labor Relations Board." Willia B. N J ohn Vin William B. Noell John VY TEXACO OIL COMPANY 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Preserve and make available to the Board or its APPENDIX agents, upon request, all records necessary to analyze the amount due in the effectuation of this remedial order. NOTICE To EMPLOYEES (c) Post at the Respondent's place of business in P OST E D BY O RD E R O F T H E Casper, Wyoming, copies of the attached notice marked NATIONAL LABOR RELATIONS BOARD "Appendix."" Copies of said notice, on forms provided A n A g e nc y o f t h e Unit ed S ta t es Government by the Regional Director for Region 27, after being duly Afe a h a ic a sd h a signed by fts representatives, shall be posted by Respond- A f t er a h eanin g a t which all sides had an opportunity to sntiedbiatsrelypresntativeeipt shall be paintained byRespo- Present evidence and state their positions, the National ent immediately upon receipt thereof, and be maintained Labor Relations Board found that we have violated the by it for 60 consecutive days thereafter, in conspicuous National Labor Relations Act, as amended, and has or- places, including all places where notices to employees dered us to post this notice. are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, W E W I L L N pm T withhold or announce that we will or covered by any other material. withhold payment of sickness and disability and oc- (d) Notify the Regional Director for Region 27, in cupational illness and injury benefits from you (d) Notify the. Regional Directorfor Region 27, in during a strike to discourage you or our other em- writing, within 20 days from the date of Order, what steps Respondent has taken to comply herewith. in other protected concerted activities. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce you in the exercise of rights guaranteed you by Section 7 of the Na- tional Labor Relations Act, as amended. WE WILL make the following employees whole, with interest, for sickness and disability or occupa- tional illness and injury benefit payments due them from the time such payments were withheld until their recovery and active participation in strike ac- tivity or the resumption of benefit payments, which- " In the event that this Order is enforced by a Judgment of a United ever is earlier: States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- Peter J. Gottfried James T. Lake ant to a Judgment of the United States Court of Appeals Enforcing an Michael L. Wergin Robert G. Ravert Order of the National Labor Relations Board." Willia B. N J ohn Vin William B. Noell John VY TEXACO OIL COMPANY 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Preserve and make available to the Board or its APPENDIX agents, upon request, all records necessary to analyze the amount due in the effectuation of this remedial order. NOTICE To EMPLOYEES (c) Post at the Respondent's place of business in P OST E D BY O RD E R O F T H E Casper, Wyoming, copies of the attached notice marked NATIONAL LABOR RELATIONS BOARD "Appendix."" Copies of said notice, on forms provided A n A g e nc y o f t h e Unit ed S ta t es Government by the Regional Director for Region 27, after being duly Afe a h a ic a sd h a signed by fts representatives, shall be posted by Respond- A f t er a h eanin g a t which all sides had an opportunity to sntiedbiatsrelypresntativeeipt shall be paintained byRespo- Present evidence and state their positions, the National ent immediately upon receipt thereof, and be maintained Labor Relations Board found that we have violated the by it for 60 consecutive days thereafter, in conspicuous National Labor Relations Act, as amended, and has or- places, including all places where notices to employees dered us to post this notice. are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, W E W I L L N pm T withhold or announce that we will or covered by any other material. withhold payment of sickness and disability and oc- (d) Notify the Regional Director for Region 27, in cupational illness and injury benefits from you (d) Notify the. Regional Directorfor Region 27, in during a strike to discourage you or our other em- writing, within 20 days from the date of Order, what steps Respondent has taken to comply herewith. in other protected concerted activities. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce you in the exercise of rights guaranteed you by Section 7 of the Na- tional Labor Relations Act, as amended. WE WILL make the following employees whole, with interest, for sickness and disability or occupa- tional illness and injury benefit payments due them from the time such payments were withheld until their recovery and active participation in strike ac- tivity or the resumption of benefit payments, which- " In the event that this Order is enforced by a Judgment of a United ever is earlier: States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- Peter J. Gottfried James T. Lake ant to a Judgment of the United States Court of Appeals Enforcing an Michael L. Wergin Robert G. Ravert Order of the National Labor Relations Board." Willia B. N J ohn Vin William B. Noell John VY TEXACO OIL COMPANY 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Preserve and make available to the Board or its APPENDIX agents, upon request, all records necessary to analyze the amount due in the effectuation of this remedial order. NOTICE To EMPLOYEES (c) Post at the Respondent's place of business in P OST E D BY O RD E R O F T H E Casper, Wyoming, copies of the attached notice marked NATIONAL LABOR RELATIONS BOARD "Appendix."" Copies of said notice, on forms provided A n A g e nc y o f t h e Unit ed S ta t es Government by the Regional Director for Region 27, after being duly Afe a h a ic a sd h a signed by fts representatives, shall be posted by Respond- A f t er a h eanin g a t which all sides had an opportunity to sntiedbiatsrelypresntativeeipt shall be paintained byRespo- Present evidence and state their positions, the National ent immediately upon receipt thereof, and be maintained Labor Relations Board found that we have violated the by it for 60 consecutive days thereafter, in conspicuous National Labor Relations Act, as amended, and has or- places, including all places where notices to employees dered us to post this notice. are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, W E W I L L N pm T withhold or announce that we will or covered by any other material. withhold payment of sickness and disability and oc- (d) Notify the Regional Director for Region 27, in cupational illness and injury benefits from you (d) Notify the. Regional Directorfor Region 27, in during a strike to discourage you or our other em- writing, within 20 days from the date of Order, what steps Respondent has taken to comply herewith. in other protected concerted activities. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce you in the exercise of rights guaranteed you by Section 7 of the Na- tional Labor Relations Act, as amended. WE WILL make the following employees whole, with interest, for sickness and disability or occupa- tional illness and injury benefit payments due them from the time such payments were withheld until their recovery and active participation in strike ac- tivity or the resumption of benefit payments, which- " In the event that this Order is enforced by a Judgment of a United ever is earlier: States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- Peter J. Gottfried James T. Lake ant to a Judgment of the United States Court of Appeals Enforcing an Michael L. Wergin Robert G. Ravert Order of the National Labor Relations Board." Willia B. N J ohn Vin William B. Noell John VY TEXACO OIL COMPANY 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Preserve and make available to the Board or its APPENDIX agents, upon request, all records necessary to analyze the amount due in the effectuation of this remedial order. NOTICE To EMPLOYEES (c) Post at the Respondent's place of business in P OST E D BY O RD E R O F T H E Casper, Wyoming, copies of the attached notice marked NATIONAL LABOR RELATIONS BOARD "Appendix."" Copies of said notice, on forms provided A n A g e nc y o f t h e Unit ed S ta t es Government by the Regional Director for Region 27, after being duly Afe a h a ic a sd h a signed by fts representatives, shall be posted by Respond- A f t er a h eanin g a t which all sides had an opportunity to sntiedbiatsrelypresntativeeipt shall be paintained byRespo- Present evidence and state their positions, the National ent immediately upon receipt thereof, and be maintained Labor Relations Board found that we have violated the by it for 60 consecutive days thereafter, in conspicuous National Labor Relations Act, as amended, and has or- places, including all places where notices to employees dered us to post this notice. are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, W E W I L L N pm T withhold or announce that we will or covered by any other material. withhold payment of sickness and disability and oc- (d) Notify the Regional Director for Region 27, in cupational illness and injury benefits from you (d) Notify the. Regional Directorfor Region 27, in during a strike to discourage you or our other em- writing, within 20 days from the date of Order, what steps Respondent has taken to comply herewith. in other protected concerted activities. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce you in the exercise of rights guaranteed you by Section 7 of the Na- tional Labor Relations Act, as amended. WE WILL make the following employees whole, with interest, for sickness and disability or occupa- tional illness and injury benefit payments due them from the time such payments were withheld until their recovery and active participation in strike ac- tivity or the resumption of benefit payments, which- " In the event that this Order is enforced by a Judgment of a United ever is earlier: States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- Peter J. Gottfried James T. Lake ant to a Judgment of the United States Court of Appeals Enforcing an Michael L. Wergin Robert G. Ravert Order of the National Labor Relations Board." Willia B. N J ohn Vin William B. Noell John VY TEXACO OIL COMPANY 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Preserve and make available to the Board or its APPENDIX agents, upon request, all records necessary to analyze the amount due in the effectuation of this remedial order. NOTICE To EMPLOYEES (c) Post at the Respondent's place of business in P OST E D BY O RD E R O F T H E Casper, Wyoming, copies of the attached notice marked NATIONAL LABOR RELATIONS BOARD "Appendix."" Copies of said notice, on forms provided A n A g e nc y o f t h e Unit ed S ta t es Government by the Regional Director for Region 27, after being duly Afe a h a ic a sd h a signed by fts representatives, shall be posted by Respond- A f t er a h eanin g a t which all sides had an opportunity to sntiedbiatsrelypresntativeeipt shall be paintained byRespo- Present evidence and state their positions, the National ent immediately upon receipt thereof, and be maintained Labor Relations Board found that we have violated the by it for 60 consecutive days thereafter, in conspicuous National Labor Relations Act, as amended, and has or- places, including all places where notices to employees dered us to post this notice. are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, W E W I L L N pm T withhold or announce that we will or covered by any other material. withhold payment of sickness and disability and oc- (d) Notify the Regional Director for Region 27, in cupational illness and injury benefits from you (d) Notify the. Regional Directorfor Region 27, in during a strike to discourage you or our other em- writing, within 20 days from the date of Order, what steps Respondent has taken to comply herewith. in other protected concerted activities. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce you in the exercise of rights guaranteed you by Section 7 of the Na- tional Labor Relations Act, as amended. WE WILL make the following employees whole, with interest, for sickness and disability or occupa- tional illness and injury benefit payments due them from the time such payments were withheld until their recovery and active participation in strike ac- tivity or the resumption of benefit payments, which- " In the event that this Order is enforced by a Judgment of a United ever is earlier: States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- Peter J. Gottfried James T. Lake ant to a Judgment of the United States Court of Appeals Enforcing an Michael L. Wergin Robert G. Ravert Order of the National Labor Relations Board." Willia B. N J ohn Vin William B. Noell John VY TEXACO OIL COMPANY