Amoco Oil Co.

AMOCO OIL CO. 441 Amoco Oil Company and Oil, Chemical and Atomic Workers International Union, Yorktown Local 3-1 and Hans J. Petri' and Dale Harris Booth and Norman E. Vandeveer and Bennie Edison Barnes and David Roaten Johnson and Willie Jerrell Rinehart and Arthur R. Harris. Cases 5-CA-12159, 5-CA-12161-3, 5-CA-12161-4, 5-CA-12161-5, 5-CA-12161-6, 5-CA-12161- 7, 5-CA-12161-10, and 5-CA-12161-11 30 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 1 June 1981 Administrative Law Judge Robert A. Giannasi issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,2 and conclusions only to the extent consistent with this Decision and Order. The facts are set forth in detail in the judge's de- cision. Briefly, the pertinent facts are as follows. Since 1957, OCAW Local 3-1 (the Union) and its predecessor have represented hourly paid produc- tion, maintenance, and laboratory employees at the Respondent Amoco's Yorktown, Virginia refinery, the only facility involved here. A memorandum agreement between the parties, extending their prior collective-bargaining agreement covering those employees, was effective by its terms from 8 January 1979 through 7 January 1981. The agree- ment contained a proviso that negotiations could be reopened on certain enumerated economic items (not involved herein) if the Union gave notice to that effect after 1 November 1979, and preserved the Union's right to strike after 8 January 1980,$ if the parties failed to reach agreement on the re- opened items. The Union invoked the reopener, agreement was not reached by 8 January, and the Union began a lawful economic strike at 12:01 a.m. on 9 January. Amoco has for many years main- tained a "closed gate" policy under which it con- tinues to operate a facility during a strike with ' The judge inadvertently omitted the names of the individual Charg- ing Parties from the caption of his decision 2 In Case 5-CA-12159, which was consolidated for heanng, the judge dismissed the allegation that the Respondent violated Sec 8 (aX5) by sub- contracting work involved in the tying and hosing of vessels at its pier. No exceptions were filed to that finding 3 All dates hereafter are 1980 unless otherwise designated management, supervisory, and other unrepresented personnel, and does not permit unit employees to work, irrespective of whether those employees belong to the Union or wish to support the strike.4 On 8 and 9 January, after it received the Union's strike notice, and after the strike actually started, the Respondent sent letters to all bargaining unit employees, notifying them that the closed-gate policy would coincide with the start of the strike, and informing employees of the status of various benefit programs for the duration of the period when no work opportunities would be available for unit employees.5 The issue here involves the Respondent' s suspen- sion of certain benefit payments-specifically those being paid under the Respondent's Occupational Illness and Injury (01&1) and Nonoccupational Sickness and Disability (S&D) Plan-to seven em- ployees who were receiving such payments as of 8 January.6 The complaint, as amended at the hear- ing, alleges that the Respondent violated Section 8(a)(3) and (1) of the Act by "refusing to pay [the seven employees] their sick benefits for their ab- sence from work which coincided with the period of a strike conducted by the Union," and that the Respondent violated Section 8(a)(1) by sending them letters announcing the suspension of those payments. The judge concluded that this case was controlled by Emerson Electric,7 and that the Re- spondent's actions were unlawful "without regard to its actual motivation." He also noted that a simi- lar conclusion had been reached by two other ad- ministrative law judges in cases that dealt with es- sentially the same employer conduct. (Amoco Oil Co., 285 NLRB 918 (1987) (Case 14-CA-13423 et al.) and 286 NLRB 770 (1987) (Case 27-CA-6659). In Texaco, Inc., 285 NLRB 241 (1987), the Board extensively reviewed the analyses of both Board 4 It is uncontradicted that the closed-gate policy had its genesis in part in strikes at two other Amoco facilities in the 1950s, during which Amoco had permitted unit employees to cross picket lines and work Hard feelings and ostracism of employees who crossed those picket lines created divisions among bargaining unit personnel at those locations, which still existed at the time of the heanng herein The policy is further designed to insure that the refinery can schedule personnel "to safely and efficiently run the around-the-clock operation" during a strike. This "closed gate" or lockout is not alleged to be unlawful and we express no opinion on the lawfulness of the "closed gated policy" or its application at the Yorktown refinery in 1980 6 In addition to contractual benefits, several other benefit plans are maintained by Amoco's parent company, for all employees of the parent and its subsidiaries, including Amoco, on a corporatewide basis Like other benefits in this category , the OI&I and S&D Plan is noncontribu- tory, and is paid for by the employing company out of current operating expenses 6 The Respondent's suspension of other benefits, e g , its contributions to retirement and savings plans, and its suspension of certain company- paid insurance premiums , is not alleged to be unlawful 7 Emerson Electric Co, 246 NLRB 1143 (1979), enfd as modified 650 F 2d 463 (3d Cir 1981), cert denied 455 U S 939 (1982) 286 NLRB No. 38 442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and court cases in this area, and expressly over- ruled the "coercive effects" theory of Emerson Electric. Rather, the Board concluded that "the question of whether an employer violates Section 8(a)(3) or (1) by refusing to continue benefit pay- ments to a disabled employee on commencement of a strike will be resolved by application of the Great Dane test for alleged unlawful conduct." More recently, in Amoco Oil Co., 285 NLRB 918 (1987), supra, the Board, applying the principles ar- ticulated in Texaco to basic facts virtually indistin- guishable from those in this case, reversed the judge's findings that the Respondent violated the Act and dismissed the complaint. In concluding there that the Respondent had come forward with legitimate and substantial busi- ness justification for its suspension of benefits suffi- cient to rebut a prima facie case made out by the General Counsel, the Board relied on the follow- ing. The Respondent's S&D and OI&I Plan is de- signed to protect wages that employees would oth- erwise have earned. The employee benefit hand- book notes certain situations in which payments are discontinued, including, inter alia, leaves of ab- sence, vacations, and layoffs; and provides that benefits will resume when a disabled employee is "otherwise due to return to work." The Board concluded that these listed events illustrate the gen- eral requirement that "work must be available in order for a disabled employee to be entitled to con- tinued payment of disability benefits." (Amoco, supra.) It also relied on undisputed testimony there by the director of benefits plans and personnel policy for the Respondent and its parent company that "this general requirement has been applied by the Respondent consistently in the past on a cor- poratewide basis to various situations including lockouts." (Ibid.) The Board further found that the Respondent's implementation of the Plan's dual eligibility re- quirements-i.e., of being both disabled and sched- uled to work-was not discriminatory. Rather, it a was consistent "with the terms of the Plan, and the Respondent's past practice with respect to disabled employees for whom no work was available both due to lockouts and for reasons other than a lock- out." (Amoco, supra.) Finally, the Board found that there was no record evidence to support a conclu- sion that the Respondent's conduct was inherently destructive of employee rights. (Ibid.) As stated above, the basic facts in Amoco, supra, are virtually indistinguishable from those in the present case. That decision is controlling here. As in that case, no work was available to represented employees here pursuant to the closed-gate policy, which has not been alleged to be unlawful, regard- less of employees' union membership or participa- tion in the strike.9 Accordingly, we shall dismiss the complaint in its entirety.- ORDER The complaint is dismissed. 9 Further, the parties here stipulated that the Charging Parties would all have received the S&D and OI&I benefits payments from the Re- spondent for 9 January and thereafter, "if work had been available for any bargaining unit employee." Nelson A. Levin, Esq., for the General Counsel. Jeffrey P. Ayres, Esq. (Venable, Baetjer & Howard), of Bal- timore, Maryland, and Robert M. O'Connell, Esq., of Chicago, Illinois, for the Respondent. Ralph A. Ames, President Local 3-1 , of Hampton, Vir- ginia, for the Charging Party. DECISION STATEMENT OF THE CASE ROBERT A. GIANNASI, Administrative Law Judge. This case, which is the result of the consolidation of two complaints, was tried on January 15 and 16, 1981, in Wil- liamsburg, Virginia. The complaint in Case 5-CA-12159 alleges that Respondent violated Section 8(a)(5) and (1) of the Act by using nonunit employees for unit work without affording the Union' an opportunity to bargain over such conduct. The complaint in Case 5-CA-12161 et al. alleges that Respondent violated Section 8(aX3) and (1) of the Act by refusing to pay sick and disability benefits of employees for their absence from work that coincided with the period of a strike conducted by the Union. Respondent denied the essential allegations in the complaint. The parties filed briefs. On the entire record , including the testimony of the witnesses and my observation of their demeanor, I make the following ' Oil, Chemical and Atomic Workers International Union, Yorktown Local 3-1 In Texaco, supra, fn. 12, the Board noted: The Court in NLRB V. Great Dane [Traders, 388 U.S. 26 (1967),] articulated the following test for alleged unlawful motivation First, if it can reasonably be concluded the employer's discnmmato- ry conduct was "inherently destructive" of important employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evi- dence that the conduct was motivated by business considerations. Second, if the adverse effect of the discriminatory conduct on em- ployee rights is "comparatively slight," an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct Thus, in either situation, once it has been proved that the employer engaged in discriminatory conduct that could have ad- versely affected employee rights to some extent, the burden is on the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him AMOCO OIL CO. 443 FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Maryland corporation, is engaged in the manufacture of petroleum products at its Yorktown, Vir- ginia facility, which is involved herein. During the 12 months prior to the issuance of the complaints, Respond- ent sold and shipped goods valued in excess of $50,000 directly to customers located outside the State of Virgin- ia. Accordingly, I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. H. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE ALLEGATIONS A. The Facts Respondent is a wholly owned subsidiary of Standard Oil of Indiana. Since 1956 Respondent has operated its Yorktown, Virginia refinery where it imports crude pe- troleum, processes it into a salable product, and ships the finished product out again usually by vessels . The York- town refinery operates continuously, 24 hours a day, 7 days a week, and 52 weeks a year. It employs about 140 employees in a bargaining unit of hourly paid mainte- nance and laboratory employees represented by the Union. The Union has represented the employees since 1972. Between 1957 and 1972 the employees were repre- sented by the Independent Oil Workers of Virginia, which affiliated, in 1972, with the Chemical and Atomic Workers to bring about the present incumbent Union. 1. Case 5-CA-12161 In' late 1979 and early 1980 the Respondent and the Union met to negotiate over the modification of several provisions of the then-current bargaining agreement. None of these modifications involved sickness and dis- ability or occupational illness and injury benefit plans (also referred to as S&D and OI&I). The negotiations were unsuccessful, and, on January 7, 1980, the Union notified Respondent that a strike would commence at the Yorktown refinery on January 9 , 1980, at 12 :01 a.m. That same day, the Union asked Respondent to continue all benefits during the strike except for those about which the parties were negotiating . Respondent stated that all benefits, including so-called. S&D and OI&I bene- fits, would be terminated for the period of the strike. More particularly , Respondent stated that employees re- ceiving S&D and OI&I benefits would cease receiving such benefits. Officials of the Union and of Respondent had one or two conversations about the employees who were receiving disability benefits The Union made it clear to Respondent that those employees were not sup- porting the strike. But the Union did not give Respond- ent a list of employees who were not supporting the strike. On January 8, 1980, the Respondent wrote a letter to all employees informing them of the strike notification and of its intention to continue operating the refinery with supervisors and "unrepresented personnel." The letter also described what Respondent terms its closed- gate policy, stating that "no work will be made available at the outset of the strike to employees in the bargaining unit who might otherwise want to work." However, the letter asked those who wanted to return to work to call a certain telephone number and stated that "if it is decid- ed to make work available" to bargaining unit employees "you will be notified." The letter also listed the status of benefits and compensation during the period of the strike. It stated that S&D and OI&I benefits would not be paid during the strike. Respondent adopted its so-called closed -gate policy in order to prevent possible friction between strikers and those employees who cross the picket line and return to work. Respondent had apparently experienced such fric- tion during a strike some years ago at another of its fa- cilities. The closed gate policy had never actually been invoked at the Yorktown refinery because there had never been a strike there prior to the 1980 work stop- page. However, in 1971 , Respondent received a strike notice from the Union and sent a letter similar to the one sent in January 1980 setting forth the closed-gate policy. No strike occurred in 1971. The 1980 strike commenced at 12:01 on January 9. All bargaining unit employees ceased work and Respondent applied the closed-gate policy announced in its January 8 letter to employees. The strike lasted until March 26, 1980, when the Union and Respondent signed a memo- randum of understanding on the disputed issues. The S&D and OI&I benefit package is available to all employees of Standard of Indiana and its subsidiaries. The benefit is noncontributory for employees and is in- corporated by reference in the collective -bargaining agreement between the Union and Respondent. The ben- efit is expressly beyond the scope of arbitration. The nonoccupational benefits are based on years of service. An employee booklet describing the plans states as follows: After a year of credited service, you are eligible for full pay for two weeks and half pay for four weeks when not able to work because of sickness or dis- ability. After that, your benefits increase yearly to a maximum, after 10 years, of full pay for 12 weeks and half pay for 40 weeks-a full year of benefits if you need them. Unused benefits in one service year cannot be carried over to the next service year. Occupational illness and injury benefits are described as follows: Benefits paid in connection with a job related dis- ability, regardless of how long you have been with the company, are as follows: First 12 weeks of disability-Full Pay Following 40 weeks of disability-Half Pay The employee booklet also states that "You are not el- igible for benefits while you are on vacation, leave of ab- 444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sence, suspension or layoff. You will become eligible for these benefits at the time you are otherwise due to return to work." Each of the seven employees listed in paragraph 6 of the complaint in Case 5-CA-12161 et al. was receiving sickness and disability or occupational illness and injury benefits as of January 9, 1980. Two of those employees, Bennie Barnes and Arthur Harris, were receiving occu- pational injury and illness benefits and were on sick leave or medical leave of absence due to an injury incurred on the job. The other five employees were receiving sick- ness and disability benefits and were on sick leave or medical leave of absence due to a nonoccupational illness or injury. Some of these employees had been receiving benefits for days or weeks prior to January 8, 1980. By letter dated January 9, 1980, after the strike had of- ficially commenced, Respondent sent letters to Harris and Barnes informing them, inter alia, that their current OI&I payments would be suspended until the strike ended or until work was made available to unit employ- ees. Respondent also sent letters to employees Hans Petri, Dale Booth, Norman Vandeveer, David Johnson, and Willie Rinehart informing them, inter alia, that their current S&D payments were suspended until the strike ended or until work was made available to unit employ- ees. None of the seven employees received benefits from January 9, 1980, until a date after the strike ended. The seven employees were unable to work on January 9, 1980, and thereafter because of the same injury they had on January 8, 1980. They would not have worked and, therefore, would have received benefits from Respondent for January 9, 1980, and consecutive dates thereafter if work had been available for any bargaining unit employ- ees. None of the seven employees participated in the strike, expressed any public support for the strike, or worked for the Union during the strike. There is no evidence that any of the seven employees received any money from the Union during the strike. Respondent did not as- certain whether any of the seven employees was picket- ing or otherwise supporting the strike and did not in any other way interrogate employees or engage in any sur- veillance regarding any union activity these employees may or may not have engaged in during the strike and did not create the impression of surveillance. The memorandum of understanding that settled the strike on March 26, 1980, provided that the Union should withdraw all unfair labor practice charges. Earli- er the Union had filed blanket charges with the Labor Board alleging that Respondent unlawfully suspended, among other things, sickness and disability benefits. This charge was withdrawn with the Regional Director's ap- proval. Thereafter, in May 1980, individual charges were filed by the affected employees, which resulted in the is- suance of the complaint in this case. 2. Case 5-CA-12159 a. The housing and mooring of vessels before and after the subcontracting Prior to the 1980 strike , employees in the oil move- ments section undertook work at the dock, which has been described as hosing and mooring tankers and barges that arrive at Respondent's Yorktown refinery. Mooring involves typing lines from a tanker or barge to the dock prior to pumping crude oil from or refined product into the vessel and untying these lines when the vessel is ready to depart. Hosing involves the coupling of hoses to a tanker or barge prior to pumping crude oil out of or refined product into vessels and uncoupling the hosing after the process is completed. The bargaining unit personnel in the oil movements section include maintenance personnel and laboratory technicians and so-called A operators, A-B operators, B operators, and extra board operators. There are two A operator positions: the Marine terminal A operator, who is responsible for operating the dock and for ensuring that vessels are properly moored and hosed, and the transfer pump house A operator who has primarily on- shore responsibilities. The A operators work 21 8-hour shifts per week. There are three B operator positions: the tank farm B operator who works with the on-shore A operator; the lower end B operator who is also known as the off-site B operator and is responsible for the waste water treatment operation, the railroad loading facility and the marketing tank facility; and the utility B opera- tor who performs barge loading and lead blending oper- ations, unloads leadcars, and assists other operators at the direction of the shift foreman. The B operators also work 21 8-hour shifts per week. The A-B operator works as a swing man performing both A operator and B operator duties. He works three shifts per week in each of the three B operator positions and two shifts per week in each of the two A operator positions. The extra board operator is an entry level position in which employees train to become B operators. The oil movements section also has two superintendents and a shift foreman who can and does perform bargaining unit work on each of the 21 weekly shifts. For approximately the first 5 to 6 years after the York- town refinery opened in 1956, hosing and mooring was performed exclusively by employees of Fluor Construc- tion Company-an outside contractor that performed around-the-clock maintenance at the refinery. After Fluors employees stopped performing this work, bargain- ing unit mechanical personnel performed hosing and mooring until operators in the oil movements section eventually took over this function.2 As of May 1977, when Ron Kautz became superin- tendent of the oil movements section, tankers were hosed and moored by a shift foreman, the marine terminal A operator, the lower end B operator, and the utility B op- erator. In July 1979, Respondent directed that the lower end B operator be eliminated from the tanker mooring crew so that he could devote more time to the waste water treatment operation. This tanker hosing and moor- 2 The above is based on the credible testimony of Larry Shaffer, a bar- gaining unit employee at the Yorktown refinery from 1956 to 1968. Union President Ralph Ames testified that he began working at the York- town refinery in 1956 as a maintenance mechanic and that for 3 of his first 5 years, he and other unit employees assisted "the operators" in mooring and hosing vessels at the dock On cross-examination, however, Ames admitted that he never worked on the dock pnor to 1965 AMOCO OIL CO. 445 ing crew remained unchanged until the strike in early 1980. Until the 1980 work stoppage, barges were hosed and moored by the marine terminal A operator, together with the utility B operator and the shift foreman as well as workers from the barge itself. At the beginning of the 1980 work stoppage, hosing and mooring was performed by nonbargaining unit em- ployees. Solely for efficiency reasons, several weeks after the strike began, personnel from Industrial Marine Serv- ice, Inc. (IMS), who were already at the dock perform- ing other functions, began performing hosing and moor- ing. Use of IMS personnel permitted bargaining unit em- ployees to remain on shore more often. The evidence shows that it took a B operator approximately 5 to 10 minutes to get from his on-shore job to the head of the dock, and another 2 or 3 minutes to walk to the vessel. The B operator would then wait around for a half an hour to an hour before actually mooring the vessel. After the vessel was moored, the B operator would then wait around for another 15 minutes before beginning to hose the vessel, after which he would then have to drive back from the dock to his on-shore job. In addition, IMS itself was used more efficiently. For some time, IMS per- sonnel had worked at the Yorktown refinery cleaning up oil spills and performing the booming operation-a con- tainment system for oil spills. Prior to the strike, IMS personnel would arrive before the booming operation ac- tually began and would be paid for as much as an hour of nonproductive work. For the same reasons of efficiency that prompted use of IMS during the strike, Respondent continued to use IMS after the strike. In a memorandum dated April 1, 1980, Kautz an- nounced that IMS would continue to perform hosing and mooring in the poststrike period. Consistent with this memorandum, the tanker hosing and mooring crew during the poststrike period has consisted of the shift foreman, the marine terminal A operator, and two IMS employees.3 Immediately after the strike, the barge hosing and mooring team consisted of the shift foreman, the A operator, and IMS personnel. In a memorandum dated July 8, 1980, however, Kautz advised the shift foreman not to use IMS on barge activities for cost-effi- ciency reasons. Since the July 8 memorandum, the barge hosing and mooring crew has consisted of the shift fore- man, the A operator, the utility B operator, and the indi- vidual operating the barge. It is not disputed that the Union was not properly no- tified and offered an opportunity to bargain about the use of IMS to perform hosing and mooring. The only evi- dence of a possible notification is that Kautz informed Union Representative William Moreland, who handled contract interpretation and grievances, in an "off the record" discussion sometime in 1979, that he was think- ing of utilizing IMS employees at the dock instead of unit employees. Moreland responded that he thought the ' Between July 1979 and the strike, the tanker mooring crew had con- sisted of three individuals Since IMS has been used for hosing and moor- ing, the crew has consisted of four individuals-including the two IMS employees-because IMS employees apparently work in pairs and al- ready were being paid to be at the dock work should remain in the bargaining unit but he did not notify any of the union) officials about the conversation. b. The impact on bargaining unit employees As of December 31, 1979-just a few days before the 1980 work stoppage began-the number of bargaining unit employees stood at 138. Although IMS has per- formed hosing and mooring in the poststrike period, all unit employees were recalled after the strike, and, as of December 31, 1980, there were 141 unit employees on the payroll. No unit employees have been laid off since the end of the work stoppage. Indeed, the Yorktown re- finery has never had a layoff of bargaining unit employ- ees since it opened in 1956. No job classifications have been eliminated since the strike ended. No unit employee at the Yorktown refinery has been scheduled to work less than a 40-hour workweek since the work stoppage ended. Nor have any unit employees been demoted or downgraded in the oil movements section since the end of the strike because of any decrease in workload. Even though the number of shift foremen in the oil movements section has remained constant throughout the relevant period, the number of unit employees perform- ing A or B operator functions in the oil movements sec- tion is greater today than before the strike. Indeed, three extra board operators, who perform B operator duties, were hired in early June 1980 for the oil movements sec- tion. Likewise, there are more unit employees perform- ing A and B operator functions in the Yorktown refinery since the strike. The only adverse impact claimed by the General Counsel in this case is an alleged loss of overtime by unit employees. It was stipulated that IMS employees worked the following number of hours in mooring and hosing vessels at Respondent's dock: April 1980, 134-3/4; May 1980, 175-3/4; June 1980, 112-1/2; July 1980, 96-1/2; August 1980, 72-1/2; September 1980, 105-1/2; October 1980, 82. For the period May through October 1980, IMS billed Respondent $10,999 for mooring and hosing. One employee witness-a B operator-testified that about 10 percent of his overtime was spent on mooring and hosing operations. It is unclear whether this refer- ence was to prestrike overtime or poststrike overtime. The evidence does show, however, that more overtime was performed by employees in the oil movements sec- tion between the end of the strike and December 31, 1980, than in comparable periods in 1978 and 1979 prior to the use of IMS for mooring and hosing, and that unit employees in the oil movements section have turned down substantial amounts of overtime since the end of the strike. According to Ron Kautz, the decision to utilize IMS for hosing and mooring after the strike was not based at all on a possible reduction in overtime. Because of Re- spondent's around-the-clock operation, overtime is usual- ly assigned in shifts. For example, an operator in the oil movements section may work overtime if he fills in for a person on a regular shift who is absent due to vacation or sick leave. On other occasions, overtime may be used because of an increased work load, although extra board operators may also be used for this purpose. Employees 446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD who do not perform hosing and mooring simply perform their regular jobs whether they are on overtime or not. It was not common to call in unit employees for over- time specifically to perform hosing and mooring, al- though this may have occurred on "rare" occasions. In October 1980, Respondent completed a new addi- tion to its dock making it possible to handle supertankers that transport larger amounts of oil than regular tankers. Although it may take longer to hose and tie these super- tankers, according to Kautz, this had little or no impact on the total amount of hosing and mooring work avail- able. He testified as follows: First off, the other marine terminal that we used to have, we had a large number of vessels, smaller vessels. Now, we have the capability with a new fa- cility of bringing in larger vessels which means you don't need as many of the little ones . Consequently, there is going to be less vessels involved than there were before. But, there-as a percent of their total work involvement, I can't see where there is a sig- nificant change of work responsibility. There is just the way the jobs are structured, the in-plant work is a significant portion of the B Operator 's work. It appears that the new addition was built not to increase capacity but to correct for structural damage in the old docks. c. The collective-bargaining agreement The current collective-bargaining agreement at the Yorktown refinery, like all previous ones, contains the following provision, in article IV, section 3(E): Supervisors, students, technical employees, and other specialists may perform work in any given classification, so long as they do not cause the de- motion or layoff of any regular employees in that classification. Every collective-bargaining agreement at the Yorktown refinery has also contained the following management rights clause, in article IV, section 1: It is recognized that among the rights of manage- ment which are not intended to be impaired or lim- ited by this Agreement are as follows: to organize all work and determine the number , scope and func- tion of departments and divisions; to eliminate and add jobs and job classifications; to prescribe the work to be performed in each job and job classifica- tion; and to determine the general requirement, standards, and qualifications necessary to perform each job. The Union has sought, on numerous occasions, to change these clauses through negotiation . In 1958, the Union sought to preclude supervisors from performing bargaining unit work under section 3(E). In 1963, the Union sought a provision forbidding supervisors, stu- dents, technicians, and other specialists from performing unit work. During the 1967 negotiations , the Union pro- posed a 50-cent assessment per day , per man, for all out- side maintenance contractor employees retained by Re- spondent at the Yorktown refinery. The same proposal was made by the Union during the 1969 negotiations. That year, the Union also sought to eliminate the man- agement-rights clause contained in article IV, section 1. During the 1971 negotiations , the Union sought to forbid supervisors, students, and technical employees from per- forming any duties associated with unit personnel. That same year, the Union again sought to eliminate the man- agement-rights clause contained in article IV, section 1. Finally, during the 1973 negotiations, the Union again sought to eliminate the management -rights clause. On each occasion, Respondent resisted the Union's proposed changes, and the Union has always withdrawn them, leaving article IV, sections 1 and 3(E) intact. These two provisions have also been construed in arbi- tration decisions at the Yorktown refinery . In 1966, an arbitrator ruled that article IV, section 1 permitted Amoco to reassign work originally performed by a unit employee to an outside contractor, on the resignation of that employee. In 1962, Arbitrator Seidenberg ruled that a loss of overtime, even if proven , does not constitute a "demotion or layoff" of unit employees, within the meaning of article IV, section 3(E). In unilaterally subcontracting work to IMS without consulting with the Union , Respondent relied on article IV, sections 1 and 3(E). Since no demotions or layoffs resulted, Respondent took the position that article IV, section 3(E) was dispositive. A grievance was filed in early April 1980 protesting the fact the IMS was per- forming mooring and hosing. The superintendent of the oil movements section, Kautz, denied this grievance at step one because there had been no demotions or layoffs. The Union requested that the grievance be processed to the next step, and it was discussed at the next regularly scheduled meeting between the Union and Respondent held on May 15 , 1980. After the meeting, Amoco again denied the grievance because the use of IMS had not re- sulted in the demotion or layoff of bargaining unit em- ployees. The Union thereafter filed the unfair labor prac- tice that forms the basis for this proceeding and with- drew its grievance "on the advice of a representative of NLRB." d. Other unilateral subcontracting of bargaining unit work at the Yorktown refinery Since 1957, a number of outside contractors, with crews ranging from 15 to over 200 employees, have per- formed production and maintenance work that bargain- ing unit personnel have the skills to perform . These out- side contractors have included Fluor, whose employees did hosing and mooring for approximately 5 or 6 years, and Catalytic Construction Company . A firm named Quality has supplied pipefitters and boilermakers in the past. A firm named Brooks Erection has performed boilermaker and pipefitter work , including the installa- tion of trays, infractionating towers, and vessel nozzles- work that unit employees have done in the past. Another company has repaired equipment that, in the past, has been repaired by unit personnel . Foley Electric Compa- ny and Johnson Controls , as well as numerous other con- AMOCO OIL CO. tractors, have also performed production and mainte- nance work that bargaining unit employees have the skills to perform. The Union has not been consulted be- forehand by Amoco when these firms have been used to perform unit work. IMS has consistently been utilized in the past by Re- spondent without prior consultation with the Union. Before IMS began cleaning up major oil spills for Re- spondent in approximately 1968 or 1969, bargaining unit employees and outside contractors handled major oil spills. Unit personnel and outside: contractor employees cleaned up minor oil spills until IMS took over this func- tion in 1972 or 1973. And booming and boom repair were initially handled by unit employees until IMS took over these functions in late 1975 or early 1976. Despite the above examples of subcontracting, no bar- gaining unit employee has ever been laid off or sched- uled to work less than a 40-hour week since the refinery opened in 1956. B. Discussion and Analysis 1. The sickness and disability pay issue4 In NLRB v. Great Dane Trailers, 388 U.S. 26, 34 (1967), the Supreme Court set firth the principle that certain conduct may be proscribed by Section 8(a)(3) and (1) of the Act without a showing of unlawful motive of its impact on employee rights. The Court stated: First, if it can reasonably be concluded that the em- ployer's discriminatory conduct was "inherently de- structive" of important employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employ- er introduces evidence that the conduct was moti- vated by business considerations. Second, if the ad- verse effect of the discriminatory conduct on em- ployee rights is "comparatively slight," an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct. Thus, in either situation , once it has been proven that the employer engaged in discrimi- natory conduct which could have adversely affect- ed employee rights to some extent, the burden is upon the employer to establish that he was motivat- ed by legitimate objectives since proof of motiva- tion is most accessible to him. In Great Dane, the Supreme Court upheld a Board find- ing that an employer's denial of accrued vacation bene- fits to striking employees was unlawful. Apparently ap- plying the principles of Great Dane to a set of circum- stances quite similar to that involved here, the Board has held that an employer's denial of sickness and disability pay to bargaining unit employees during a strike is un- lawful where he has not demonstrated that the employ- ees joined or sanctioned the strike. Emerson Electric Co., 4 The terms "sickness and disability" or "injury and disability" are used generally to refer to the S&D and OI&I benefits 447 246 NLRB 1143 (1979), enf. granted as modified 650 F.2d 463 (3d Cir. 1981). The instant case is controlled by Emerson Electric. Here, as there, the employees had accrued and earned their disability benefits on the basis of their work prior to their disability or illness and prior to the strike. The af- fected employees were collecting these benefits at the time of the strike. The nonoccupational benefits are based on years of credited service and the occupational benefits are based on work for Respondent prior to the illness or injury. The benefits here were thus earned and accrued prior to the date of the strike, as they were in Emerson Electric, and they did not depend on any future work or services for the Respondent. See Emerson Elec- tric, supra at 468-469. In addition, here, as in Emerson Electric, the Respond- ent announced, prior to the strike, its termination of the disability benefits if a strike occurred. This announce- ment was made on December 7, 1979, when the strike seemed imminent, but before it could be determined that any of the employees who were being paid sickness and disability benefits would join the strike. Indeed, in the in- stant case, Respondent was told that the employees col- lecting disability payments were not joining or support- ing the strike. Respondent nevertheless terminated the benefits when the strike began and did not reinstate them until after the strike ended. Thus, as in Emerson Electric, it can be concluded here that Respondent's conduct either had the foreseeable effect or the specific intent of coercing and restraining employees "by imposing a sanc- tion against certain unit employees if others in the unit engaged in strike activity." 246 NLRB 1143. A similar conclusion has been reached by two other administrative law judges in cases that dealt with essentially the same employer conduct (285 NLRB 918 (1987) and (286 NLRB 770 (1987)). The Respondent's conduct penalizes disabled and sick employees by cutting off benefits earned by virtue of their prior employment only because their fellow em- ployees have struck. This not only inhibits their choice of whether to align themselves with their fellow employ- ees in protected concerted activity, but also inhibits other employees from engaging in protected activity for fear that doing so would penalize those who are collect- ing disability benefits. Since the benefits are cut off be- cause of a strike and they are cut off only for the dura- tion of the strike, the termination of benefits is discrimi- natory on its face and is inherently destructive of impor- tant employee rights, that is, the right to strike without penalty from the employer against accrued and earned benefits. The foreseeable effect of the employer's con- duct carries its own indicia of intent just as the grant of super seniority to nonstrikers (NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963)) and the breadth of a no-solic- itation rule (Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945)). Accordingly, I find that Respondent's con- duct is unlawful without regard to its actual motivation. Even if the impact on employee rights of Respondent's conduct is not thought to be in the "inherently destruc- tive" category, however, it surely has some significant impact on employee rights. Since the facts in this case 448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD are indistinguishable in any significant detail from those in Emerson Electric, they carry the same impact on em- ployee rights . In these circumstances, under Great Dane, the employer bears the burden of coming forward with evidence of legitimate and substantial business reasons for the alleged unlawful conduct . I do not believe that Respondent has sustained its burden in this case of show- ing that the termination of earned benefits to disabled employees during the period of a strike was justified by legitimate substantial business reasons. The only explanation offered by Respondent to justify its termination of benefits is the application of its "closed gate" policy to bar the employment of any bargaining unit employee during the course of the strike . It is not clear to me that this is actually a business reason for the termination of benefits or that a business reason was of- fered at the time the benefits were terminated . For exam- ple, Respondent was not required to apply its closed-gate policy to terminate disability benefits ; it chose to do so in order to justify the termination of benefits . Why Re- spondent felt it necessary to terminate these benefits during the strike is unclear unless it felt that paying them would finance a strike . This reason fails because in this case, as in Emerson Electric, the disability benefits were earned and accrued prior to the strike and were being paid to employees who had become sick and disabled prior to the strike. They are not in the nature of wages or other compensation for present employment that obvi- ously need not be paid during the period of a strike. In any event, it is clear that Respondent invoked the closed-gate policy in direct response to the Union's deci- sion to call a strike . Respondent contends that , under its employee benefits plan, sickness and disability benefits are only payable for days when work is available to em- ployees, that due to its implementation of a closed-gate policy no work was available, and that, therefore, pay- ment of these benefits could be dispensed with during the strike. This argument neither distinguishes Emerson Electric nor provides a substantial and legitimate business reason for refusing to pay earned sickness and disability benefits in this case. First, the reason no work was available for the seven employees denied disability benefits was Respondent's own decision to close its gates to all unit employees. That decision had for its very basis the fact that the Union had called a strike . If the Union had not struck, Respondent would not have closed its gates and refused to pay sickness and disability benefits . The seven em- ployees were denied their accrued benefits not due to circumstances identified in the employee plan such as va- cation, leave of absence, suspension, or layoff, but due to the employees' strike. It is difficult to imagine a circum- stance more directly keyed to discrimination based on protected concerted activity. Here, as in Great Dane, people were treated differently than they would other- wise have been treated due to the strike.5 5 Respondent is incorrect in asserting that unit employees were not treated differently "before .. [as compared to] after the strike ," quoting from Kansas City Power Co Y NLRB, 641 F 2d 553 (8th Ca 1981) Before the strike the employees were paid sick benefits After the strike they were not They were treated differently because the Union struck Second, there was no valid business reason for denying sickness and disability benefits to the seven employees in- volved here. Respondent's closed-gate policy is purport- edly designed to avoid potential friction between the strikers and those who cross the picket line and return to work. Even accepting, arguendo, this basis for the policy, Respondent's application of that policy to em- ployees unable to work at the time of the strike is una- vailing. All seven of its employees were unable to work when the strike began January 9 and therefore none was capable then of creating friction by crossing the picket line and returning to work. As Administrative Law Judge Schwarzbart stated in his decision : "Although it is clear that discontinuance of S&D and OI&I to the eight sick employees during the strike saved the Respondent money, it is not clear that their continuation would have fomented increased tensions within the unit ." Amoco Oil, 285 NLRB at 929. Finally, the evidence establishes the same indicia of intent that was present in Emerson Electric. As I have in- dicated, the significant facts in the two cases are virtually identical. The disability benefits had been accrued prior to the strike by employees who were collecting these benefits at the beginning of the strike . Respondent an- nounced that it was terminating those benefits when it learned that the Union was striking and in the face of knowledge that the employees were not supporting the strike. And Respondent actually denied the benefits for the duration of the strike. Moreover, contrary to Re- spondent's assertion, the invocation of the closed-gate policy to terminate disability benefits in this case was not entirely benign. Steward Sedgwick, Respondent's manag- er of employee relations, testified that injury and disabil- ity benefits are paid when Respondent shuts down its fa- cilities for maintenance or repair . Such shutdowns may last for as long as several weeks . In these circumstances, as in application of the closed -gate policy, some employ- ees continue working at the facility . In the plant shut- down situation, some unidentified employees perform work. In the closed-gate situation, nonbargaining unit personnel perform work . There is no significant differ- ence in the availability of work in the two situations. The only significant difference is that in the latter situa- tion the Union has called a strike . Yet Respondent would deny injury and disability benefits in the one situation but not the other. In short, the application of Respond- ent's closed-gate policy to deny payment of earned bene- fits to employees on disability because of the Union's strike not only fails to provide a defense to its conduct but also provides further evidence that its conduct was intended to discourage union and protected concerted activity in violation of the Act. In support of its position, Respondent cites and relies on Kansas City Power Co., 244 NLRB 620 (1979), and Ace Beverage Co., 253 NLRB 951 (1980). These cases are distinguishable . In Kansas City Power Co., the Board found no violation in the employer's denial of sick leave benefits to striking employees who became incapacitated during the course of the strike. The Board 's decision, however, stressed that sick benefits were denied to em- ployees who were already on strike and then became ill AMOCO OIL CO. 449 during the strike. In these circumstances, the benefits were not earned prior to the strike. That situation, the Board noted, is to be distinguished from cases in which sick benefits were earned prior to the strike and were denied to employees who were sick and receiving bene- fits at the time the strike began. Kansas City Power, supra at fn. 1. In Ace Beverage, bargaining unit employees had to earn their right to vacation pay by working a full 45 weeks during the previous calendar year. Many employ- ees who participated in a strike against the employer failed to work the required 45 weeks due to their strike activity and the employer refused to pay these employ- ees' vacation benefits. Finding in effect that the employ- ees had not earned the benefits prior to the strike, the Board held that the denial of benefits was not a viola- tion. Here, on the other hand, the benefits at issue were earned prior to the strike and thus denial of the benefits does constitute a violation of the Act. Respondent's other contentions are also unavailing. Respondent maintains that the closed-gate policy was not shown to have been motivated by a desire to discrimi- nate against employees for their union activities or to dis- courage union activities. This argument misses the mark. There is no allegation that the closed-gate policy was in itself unlawful. However, the closed-gate policy, which was implemented because the Union struck, does not jus- tify the denial of sickness and disability benefits to em- ployees who were receiving such benefits at the time of the strike. Respondent also errs when it equates its closed-gate policy with a lockout and cites a number of decisions finding lawful the implementation of a lockout and the use of temporary replacements during a lockout. The instant case does not involve the legality of a lock- out or the use of temporary replacements during a lock- out-or even the suspension of benefits during a lockout. It involves the suspension of benefits during a strike. Re- spondent attempts to cast the case in a different light be- cause its defense is based almost completely on the appli- cation of its closed-gate policy, which it equates to a lockout. As I have indicated, however, the closed-gate policy was based on the fact that the Union struck. Thus, the loss of benefits suffered by employees was occa- sioned by a strike. Finally, Respondent's claim that the seven employees "participate[d] in the strike," Emerson Electric is simply not supported by the facts. Respondent has failed to establish that any of the seven employees expressed any public support for the strike, worked for the Union during the strike, or otherwise participated in the strike. The record convincingly demonstrates the op- posite. Respondent's argument that the complaint should be dismissed based on the memorandum of understanding consummated by Respondent and the Union at the con- clusion of the strike is likewise unpersuasive. The agree- ment provided that the Union would withdraw all unfair labor practice charges regarding the strike that it had filed with the Board. After the strike the Union, with the Regional Director's approval, did in fact withdraw all such charges. The seven employees later filed individual charges, which are the basis of 1 he complaint at issue here. The Union did not, and could not, waive the Board's right and duty to enforce the provisions of the Act. The Board "acts in the public interest to enforce public, not private, rights" and "parties cannot by con- tractual agreement divest the Board's function to operate in the public interest." Emerson Electric, supra. In these circumstances, Respondent violated Section 8(a)(1) of the Act by announcing that it would terminate disability benefits to bargaining unit employees receiving them if the Union struck and violated Section 8(a)(3) and (1) of the Act by terminating those benefits for seven employees during the term of the strike. 2. The subcontracting issue An employer's unilateral subcontracting of work per- formed by unit employees-even if done solely for eco- nomic reasons-can, in certain circumstances, violate Section 8(a)(5) and (1). See Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964). Not all unilateral subcontracting, however, is unlawful. To establish that an employer's refusal to bargain over subcontracting issues violates the Act, the General Counsel must dem- onstrate that "the contracting out invovled a departure from previously established operating practices, effected a change in conditions of employment, or resulted in a significant impairment of job tenure, employment securi- ty or reasonably anticipated work opportunities for those in the bargaining unit." Westinghouse Electric Corp., 150 NLRB 1574, 1576 (1965). The Board found no violation in Westinghouse and pointed out five factors to be identi- fied and analyzed in assessing the validity of unilateral subcontracting: In sum-bearing in mind particularly that the re- current contracting out of work here in question was motivated solely by economic considerations; that it comported with the traditional methods by which the Respondent conducted its business oper- ations; that it did not during the period here in question vary significantly in kind or degree from what had been customary under past established practice; that it had no demonstrable adverse impact on employees in the unit; and that the Union had the opportunity to bargain about changes in existing subcontracting practices at general negotiating meetings-for all these reasons cumulatively, we conclude that Respondent did not violate its statuto- ry bargaining obligation by failing to invite union participation in individual subcontracting decisions. [Id. at 1577.] The Westinghouse test has been applied in Shell Oil Co., 166 NLRB 1064, 1065 (1967), and later cases, see, e.g., General Electric Co., 240 NLRB 703, 708 (1979). Perhaps the most significant factor in determining whether a vio- lation has occurred is whether the subcontracting has re- sulted in a substantial adverse effect on bargaining unit employees or work. See Equitable Gas Co. v. NLRB, 637 F.2d 980 (3d Cir. 1981); District 50, United Mine Workers of America v. NLRB, 358 F.2d 234 (4th Cir. 1966); Cen- tral Buying Service, 223 NLRB 542, 544-545 (1976). In Shell Oil Co., supra, 166 NLRB at 1066-1067, the Board noted that the existence of a contractual clause that im- plicitly recognized the employer's right to act unilateral- 450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ly was a factor in determining whether there was an ob- ligation to bargain over the change in operation. 166 NLRB at 1065. Applying the above authorities to the facts of this case, I find that the General Counsel has not proved a violation by the preponderance of the evidence. As to the first factor mentioned in Westinghouse, the General Counsel does not argue, and it cannot be found, that the Respondent was motivated by anything other than economic considerations in contracting out the mooring and hosing work. As to the second and third factors, it is clear that the unilateral subcontracting in- volved in this case followed a consistent pattern of uni- lateral subcontracting of work at the Yorktown refinery. The evidence shows that, since 1956, numerous subcon- tractors were utilized to perform work that could have been or was performed by bargaining unit personnel. The Union was not notified or given an opportunity to bargain over the specific subcontracting in these situa- tions. The Union apparently acquiesced in previous in- stances of subcontracting. Another factor set forth in Westinghouse is the union's opportunity to bargain generally over subcontracting practices: "[a]s one factor in the assessment of that spe- cific issue, we take into account that the Union was in a position to, and in fact did, seek to negotiate adjustments in plant subcontracting policies." The Respondent here relied on a contractual clause that permitted it to utilize nonbargaining unit employees for bargaining unit work if there were no demotions or loss of work for bargaining unit employees. The Union has consistently tried to ne- gotiate the deletion of this clause in general bargaining negotiations but failed. It continues to have the opportu- nity of general negotiating sessions to seek to alter this clause. Indeed, in a prior arbitration proceeding, this clause was read not to apply to the loss of overtime, the only adverse impact on the bargaining unit alleged by the General Counsel. In these circumstances, the Re- spondent's obligation to bargain over specific subcon- tracting issues is significantly diminished. The final Westinghouse factor-detrimental impact on the bargaining unit work and employees-is perhaps the most significant factor in determining whether a viola- tion has occurred. The General Counsel concedes that the only negative impact he is alleging is a loss of over- time work by bargaining unit employees. 6 His analysis is essentially as follows: prior to the strike B operators were often assigned overtime and spent approximately 10 percent of that overtime performing mooring and hosing; during the strike IMS employees were assigned to the mooring and hosing work; subsequent to the strike IMS employees continued to perform that work instead of B operators; therefore, the B operators lost a significant amount of overtime work and earnings due to the sub- contracting. This argument is without merit. 6 Although, in his brief, the General Counsel at times speaks of a de- tenmental impact to all bargaining unit employees, including A operators and A-B operators, it appears that his real claim is that only the B opera- tors were adversely affected by the subcontracting The General Counsel, however, has failed to establish a significant adverse impact on either the entire bargaining unit or the B operators To start with, the General Counsel has simply failed to prove by a preponderance of the evidence that the sub- contracting caused a significant reduction in the overtime hours worked by B operators or other unit employees. During the General Counsel's presentation of his case-in- chief, no evidence was offered to quantify the alleged loss of overtime. On rebuttal, the General Counsel re- called Boyd Woodward, a B operator in the oil move- ments section, who testified as follows: BY MR. LEVIN: Q. Mr. Woodward, while you have been em- ployed in the Oil Movements Section, have you been requested to work overtime? A. Yes. Q. Approximately how often have you been re- quested to work overtime? A. Once or twice a week. Q. Approximately what percentage of the time when you are requested to work overtime, if any, is it to do solely work at the loading dock? A. To do work at the loading dock? Q. To go to work at the loading dock. A. About 10% of the time. MR. LEVIN: I have nothing further. JUDGE GIANNASI: What do you mean by work at the loading dock? MR. WOODWARD: I understood his question to mean performing duties of tying up vessels and hosing up vessels, this procedure. JUDGE GIANNASI: And, you have done that once or twice a week? MR. WOODWARD: No, sir. He asked me how often am I asked to work overtime and I say once or twice a week. JUDGE GIANNASI: And 10% of that time is in order to do this loading dock work? MR. WOODWARD: Yes, sir. In his brief, the General Counsel also notes that 779.5 hours were worked by IMS employees in mooring and hosing from April to October 1980 (an average of 112 hours per month) and IMS billed and received from Re- spondent $10,999 for this work. These three figures-loss of 10 percent of overtime hours, 779.5 hours worked by IMS employees on hosing and mooring and $10,999 paid to IMS for hosing and mooring work-are all that the General Counsel offers to substantiate the claim that the subcontracting of the mooring and hosing work had a substantial impact on bargaining unit work. The evidence is insufficient to show a significant detrimental impact on bargaining unit work. The General Counsel assumes that since B operators spent approximately 10 percent of their overtime hours performing mooring and hosing prior to the strike, and that since after the strike the B operators did no mooring and hosing, that therefore B operators lost approximately 10 percent of their normal overtime hours due to the subcontracting. This was not established and the conclu- sion appears to be erroneous. The 10-percent figure is a rough estimate by one worker of the average amount of overtime B operators spent on mooring and hosing. The AMOCO OIL CO. 451 source for that estimate also conceded that B operators did work, at least "sometimes," on mooring and hosing after the strike. There is thus no way to know for sure from the record if the witness' 10-percent figure referred to prestrike or poststrike work. More importantly, the General Counsel assumes that any postsubcontracting re- duction in the number of hours that B operators spent on mooring and hosing directly translated into a reduction in the number of overtime hours that B operators worked. This is inaccurate. It is uncontested that the re- finery's 24-hour-a-day operation has resulted in Respond- ent's normally assigning overtime in shifts. When on overtime, prior to the strike, the shift employees per- formed their usual duties, including, at times, mooring and hosing. It was unusual for shifts to be assigned over- time specifically for the purpose of mooring and hosing; though this did occur on occasion, such assignments were rare. Thus, the fact that, after the strike, IMS em- ployees performed mooring and hosing in place of B op- erators does not mean that B operators lost normal work or overtime hours; the B operators are still assigned overtime and they merely perform their normal duties other than mooring and hosing. To persuasively dispute this conclusion, the General Counsel would have had to compare the overtime records of B operators before and after the subcontracting and identify any reduction in overtime hours worked. But the General Counsel failed to introduce any such evidence. And the only evidence on the point in the record demonstrates the opposite. The employees' payroll records show that employees in the oil movements section worked a higher number of overtime hours after the subcontracting (1980) than before the subcontracting (1978 and 1979): in 1978 there were 2600 total overtime hours worked by the section's employees, in 1979 there were 3990 hours, and in 1980 there were 4065 hours.7 In addition, it is undisputed that section employees turned down opportunities for sub- stantial amounts of overtime since the subcontracting. Clearly, the fact that IMS was assigned mooring and hosing has not significantly decreased the bargaining unit employees' number of overtime hours worked. The General Counsel maintains that two factors that arose after the strike increased the number of hours that B operators would have performed mooring and hosing if the work had not been subcontracted. New equipment was installed in the water treatment plant during the strike, allegedly resulting in increased work for the lower end B operator. The General Counsel points to Respond- ent's elimination, in July 1979, of the lower end operator from the tanker mooring crew as proof of this point. There is no indication, however, that there was any need to replace the lower end operator with any employee in order to adequately moor and hose tankers; indeed, Re- spondent's reduction of the crew size was both efficient and safe. The other B operators and the other unit em- ployees thus lost no potential overtime by this action. The General Counsel also contends that the opening of Respondent's new dock in October 1980 would have increased the number of mooring and hosing overtime Figures are rounded and represent total overtime hours worked April I to December 31 for each year hours for the B operators. But the new dock, built to accept the new super-tanker size oil ships, would not have increased overtime opportunities for unit employ- ees. Although each supertanker arriving at the dock may have taken longer to tie and hose, the evidence shows that the total amount of oil arriving at the refinery was not expected to increase. The larger ships merely meant that fewer total vessels would dock at the refinery and require mooring and hosing. The figures in the record bear this out: In October 1980 (with the new dock in op- eration), the IMS employees spent no more time, and in fact spent less time, mooring and hosing than in Septem- ber 1980 (when only the old docks were in operation). Clearly, neither the opening of the new dock nor the elimination of the lower end B operator from the crews would have resulted in increased hours of mooring and hosing work for B operators had they been performing the work that was subcontracted to IMS. The General Counsel relies on two cases in support of his position that there has been a significant adverse impact on the bargaining unit. They are inapposite. In Cities Service Oil Co., 158 NLRB 1204 (1966), seven bar- gaining unit employees suffered a total loss of $3000 in the form of lost overtime pay in the 12 months following the subcontracting. The loss was found to be "directly resulting" from the employer's subcontracting. In finding a violation of Section 8(a)(5) in that case, the Board stated that the subcontracting "caused significant detri- ment to employees in the . .. unit," noting that the sub- contracting resulted in a "substantial loss of customary overtime earnings" in the amount of more than $400 per year for each of the seven employees in the unit. Here, there is no proof that the subcontracting caused any B operator or other unit employee to lose overtime work and there is no evidence to determine a per-employee dollar loss from the subcontracting. In Central Missouri Electric Cooperative, 222 NLRB 1037 (1976), the Board, in finding a violation, also found that "[a]s a result" of Respondent's subcontracting, 218 total hours of over- time, or about 4 hours per month for each of 4 employ- ees in the 26-employee unit, were lost. Again, in the in- stant case, there is no evidence that unit employees lost a specific number of hours of overtime, and there is no proof of what each allegedly affected employee lost in overtime earnings. Moreover, even viewing the scant evidence in the record in the light most favorable to the General Counsel, the impact of the subcontracting at issue here is far less significant than in either Cities Serv- ices or Central Missouri Electric. In 1979 the unit employ- ees in the oil movements section worked approximately 4000 total hours of overtime during April through De- cember, or approximately 5300 total overtime hours for the year. Using the General Counsel's 10-percent figure, there was a total of about 530 hours of overtime in 1979 spent mooring and hosing. On a per-employee basis this means that, prior to the subcontracting, unit employees each spent approximately 23 overtime hours per year, or less than 2 hours per month per employee, in mooring and hosing (530 hours divided by the 23 oil movements section employees employed by Respondent as of De- cember 31, 1979-9 A operators, 1 A-B operator, and 13 452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B operators). Thus, even accepting the assumptions and figures of the General Counsel necessary to make this ar- gument, the subcontracting here had an impact that was considerably less sustantial than the impact in Central Missouri Electric. Finally, unlike in this case, in neither Cities Services nor Central Missouri Electric was there an established past practice of unilateral subcontracting by the employer, or any contractual clause permitting sub- contracting. Thus, neither case can be relied on to sup- port a finding of a violation under the facts present in this case. In summary, the General Counsel has failed to prove that any of the Westinghouse factors point towards a find- ing that the Respondent's subcontracting violated the Act. Based on all the circumstances, I find that Respond- ent did not violate the Act by unilaterally subcontracting its mooring and hosing work without prior notification to the Union and I shall dismiss the complaint in Case 5- CA-12159. CONCLUSIONS OF LAW 1. The Respondent has violated Section 8(a)(3) and (1) of the Act by withholding payment of sickness and dis- ability, occupational illness, and injury benefits during the January 9 to March 26, 1980 strike from the seven employees named below in the remedy section of this de- cision. 2. The Respondent has violated Section 8(a)(1) of the Act by announcing to employees that during a strike by the Union, sickness and disability, occupational illness, and injury benefit payments would be withheld from em- ployees then receiving such payments who were not strike participants. 3. The aforesaid violations are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 4. The General Counsel has failed to establish that Re- spondent unlawfully refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act by subcon- tracting unit work. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I will recommend that the Re- spondent be required to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully with- held sickness and disability, occupational illness, and injury benefit payments during a strike from seven em- ployees due such payments at times when they were not strike participants, I will order that Respondent reim- burse the following employees for money due them with interest: Bennie Edison Barnes Dale Harris Boath Arthur R. Harris David Reaten Johnson Hans J. Petri Willie Jerrell Rinehart Norman E. Vandeveer The period for which such reimbursement must be made is from January 9, 1980, through March 26, 1980. Those of the seven employees who ceased being sick or dis- abled during that period should be paid only what sick and disability or occupational illness and injury benefits were due them to the day of their recovery.8 [Recommended Order omitted from publication.] 8 Interest shall be computed in accordance with Florida Steel Corp., 231 NLRB 657 (1977) 6