Amoco Oil Co.

AMOCO OIL CO. 453 Amoco Oil Company and Gary L. Hockman. Case 17-CA-9735 30 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 19 May 1981 Administrative Law Judge Wil- liam L. Schmidt 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, and conclusions only to the extent consistent with this Decision and Order. This case was submitted for decision on a stipu- lated record. The pertinent facts are as follows. The Respondent (Amoco or the Company) and Oil, Chemical and Atomic Workers International Union Local 5-672 (the Union) were parties to a collective-bargaining agreement covering approxi- mately 500 production employees at the Respond- ent's Sugar Creek, Missouri refinery, the only facil- ity involved here, effective by its terms from 8 Jan- uary 1979 to 7 January 1981. Pursuant to contract reopener provisions, several negotiating sessions were held regarding certain economic items not otherwise involved here. When the parties failed to reach agreement, the Union commenced a lawful economic strike effective 4 p.m., 8 January 1980,1 which continued until 1 April. Amoco maintained a "closed gate" policy for the entire period of the strike, whereby no member of the bargaining unit was permitted to work, irrespective of whether he or she was willing and able to do so. Thus, no bar- gaining unit employees performed or were permit- ted to perform any work for the Company from 8 January through 1 April, and the Company operat- ed the refinery solely with supervisors and other nonbargaining unit employees throughout this period.2 i All dates hereafter are 1980 unless otherwise designated 2 In Amoco Oil Co., 285 NLRB 918 (1987) (Case 14-CA-13423 et al.) and Amoco Oil Co, 286 NLRB 369, issued this day (Cast 5-CA-12159 et al.; Amoco 11), we noted that Amoco's closed-gate policy had its genesis, in part, in strikes at two facilities in the late 1950s, dung which Amoco had permitted unit employees to cross picket lines and work. Uncontro- verted testimony in the above cases showed that violence ensued and that friction and ostracism of employees who crossed those picket lines still existed at the time of the hearings in those cases . As we further noted there, the closed-gate policy was also designed to ensure that the refinery can schedule personnel to "safely and efficiently " run the around-the- clock operation during a strike We note that the facility involved in this case is one of those referred to in those cases We further note that the General Counsel does not contend that the closed -gate policy is in any In addition to contractual provisions, the Re- spondent provides several benefit plans that are maintained by Amoco's parent company, and are available to employees of the parent company and its subsidiaries, including Amoco. Included among those is the Sickness and Disability (S&D) and Oc- cupational Illness and Injury (OI&I) Plan. (The benefits of that plan are also referred to herein as S&DB payments.) A booklet entitled "Employee Benefit Plans" summarizes the plans for employees' convenience, although it specifically does not fully describe all of their provisions. The booklet notes, inter alia, that employees are not eligible for S&D and OI&I benefits while on vacation, leave of ab- sence, suspension, or layoff, and that employees will be eligible for such benefits "at the time you are otherwise due to return to work." The parties stipulated that the Respondent has at all times ad- ministered the plan so that employees are eligible for S&DB payments only when they are (1) sick and disabled and (2) they are prevented by reason of such sickness or disability from working a shift they otherwise would be scheduled to work. After receiving the Union's strike notice, the Re- spondent on 7 January sent a letter to all bargain- ing unit employees, informing them of the strike notification, that the Respondent intended to oper- ate the refinery with supervisory and unrepresented personnel, that no work would be made available to employees in the bargaining unit, and detailing the status of compensation and other benefits while they were not working. On 9 January, the day after the strike began, Amoco sent a letter to all bargaining unit employees receiving S&DB pay- ments, informing them that until work was made available, payments would be suspended in accord- ance with the terms of the plan. On 28 March the Union and the Respondent entered into a settle- ment agreement that provided, inter alia, (1) that the strike would end the day after the employees ratified the settlement, (2) that "In accordance with existing Company practice, an employee who is unable to work on his first scheduled return-to- work day after the Strike because of sickness or ac- cident" would receive benefits under the plan, and (3) that the Union would withdraw all unfair labor practice charges, lawsuits, and/or grievances relat- ing to, inter alia, S&D benefits.3 Effective on 1 manner unlawful and we express no opinion on the lawfulness of this policy or its application to the Sugar Creek refinery 3 A "blanket" charge, which had been filed by the Union on 28 Janu- ary, was withdrawn on 3 April The Respondent in its exceptions renews its contentions that the Union and the Respondent settled the legal issue presented here at the bargaining table in accord with past practice, that the General Counsel's underlying theory cannot reasonably contradict what the parties themselves had stipulated that practice to be, and that Continued 286 NLRB No. 39 454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD April, concurrent with its lifting of the closed gate, the Company resumed S&D payments to those em- ployees eligible for such payments under the plan. The sole issue, as alleged in the complaint, is whether the Respondent violated Section 8(a)(3) and (1) of the Act by suspending S&D and OI&I payments from 8 January to 1 April for employees who had been receiving them prior to 8 January.4 The judge concluded that the Respondent "auto- matically reclassified" employees as strikers, and that "contrary to the allegation of the complaint," affected employees should be made whole for "all losses" that he deemed attributable to discriminato- ry conduct by the Respondent. In so doing, he relied in part on the Board's decision in Emerson Electric.5 For the reasons indicated below, we do not adopt the judge's analysis and shall dismiss the complaint.6 In Texaco, Inc., 285 NLRB 241 (1987), the Board extensively reviewed the analyses of both Board and court cases in this area, and expressly over- ruled the "coercive effects" theory of Emerson Electric. Rather, the Board (at 245) concluded that the "question of whether an employer violates Sec- tion 8(a)(3) or (1) by refusing to continue benefit payments to a disabled employee on commence- ment of a strike will be resolved by application of the Great Dane test for alleged unlawful con- duct."7 the Board should give effect to that agreement. We find it unnecessary to pass on these contentions here, in light of our disposition of the case on other grounds. But see Texaco, Inc, 273 NLRB 1335 (1985). 4 The Respondent's suspension of other benefits, or suspension of cer- tain company-paid insurance premiums, is not alleged to be unlawful. 5 Emerson Electric Co, 246 NLRB 1143 (1979), enfd as modified 650 F.2d 463 (3d Cir. 1981), cert. denied 455 U.S 939 (1982) 6 The Respondent in its exceptions contends, inter alts, that the judge misapprehended certain evidence, failed to consider other stipulated evi- dence in his analysis, erred in relying on a finding of fact made by an- other administrative law judge in a different proceeding; and made find- ings outside the scope of the complaint While we find meet in certain of the Respondent's exceptions, we find it unnecessary to treat them specifi- cally, in light of the grounds for dismissal of the complaint set forth infra. In so doing, we do not adopt certain gratuitous comments by the judge at par. 7 and fn. 10 of the "Additional Findings and Conclusions" section of his decision. 7 As the Board noted in Texaco, supra, at 243 fn 12, citing 388 U S at 34 More recently, in Amoco Oil Co., 285 NLRB 918 (1987) (Case 14-CA-13423 et al.), the Board, ap- plying the principles articulated in Texaco, the basic facts virtually indistinguishable from those in this case, reversed the judge's findings that the Re- spondent violated the Act and dismissed the com- plaint. 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 disabled employees would otherwise have earned. The employee bene- fit handbook notes certain situations in which pay- ments are discontinued, including, inter alia, leaves of absence, vacations, and layoffs; and provides that benefits will resume when a disabled employee is "otherwise due to return to work." The Board concluded that the listed events illustrated 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 at 923.) The Board further cited 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 corporatewide basis to various situations including lockouts." (Ibid.) Finally, the Board found that the Respondent's implementation of the plan's dual eligibility require- ments-i.e., of being both disabled and scheduled to work-was not discriminatory. Rather, it was consistent "with the terms of the plan and the Re- spondent'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 at 923.) Finally, the Board found that there was no record evidence to support a conclusion that the Respondent's conduct was in- herently destructive of employee rights. (Ibid.) That decision is controlling here.8 As in that case, no work was available to represented employees pursuant to the closed-gate policy, which has not been alleged to be unlawful, regardless of employ- ees' union membership or participation in the 6 As noted above, the basic facts here are virtually indistinguishable from those in Amoco, supra The events here involve the same corpor- atewide plan (with minor details not relevant here ) and the same applica- tion of the Respondent's closed-gate policy during a nationwide strike called by OCAW International and its locals at several facilities of the Respondent as well as certain other employers. The Court in [NLRB v.] Great Dane [Trailers, 388 US 26 (1967),] articulated the following test for alleged unlawful motivation First, if it can reasonably be concluded that the employer's dis- cnminatory 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 em- ployer introduces evidence that the conduct was motivated by business considerations Second, if the adverse effect of the dis- criminatory conduct on employee 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 which could have adversely affected em- ployee rights to some extent, the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him AMOCO OIL CO. strike. Accordingly, we shall dismiss the complaint in its entirety. ORDER The complaint is dismissed. Richard C. Auslander, Esq., for the General Counsel. Stanley E. Craven, Esq. (Spencer, Fane, Britt & Brown), of Kansas City, Missouri, and Robert M. O'Connell, Esq., of Chicago, Illinois, for the Respondent. DECISION STATEMENT OF THE CASE WILLIAM L. SCHMIDT, Administrative Law Judge. This matter was submitted to me on the basis of a stipu- lation executed by all parties on January 27, 1981. The case is based on an original charge and an amended charge filed by Gary L. Hockman (Charging Party), an individual, and a complaint issued on behalf of the Gen- eral Counsel, which alleges that Amoco Oil Company (Respondent) violated Section 8(a)(1) and (3) of the Act by discontinuing the payment of disability benefits to 10 workers during a 1980 strike at its Sugar Creek, Missouri facility.' As will be more fully discussed below, the Re- spondent's answer admits the preliminary allegations of the complaint, but denies the commission of the alleged unfair labor practices.2 On the entire record submitted herein and the timely briefs filed by the General Counsel and the Respondent, S I make the following FINDINGS OF FACT 1. THE ALLEGED UNFAIR LABOR PRACTICES A. The Events and Circumstances This matter involves only the Respondent's facility lo- cated at Sugar Creek, Missouri, where it is engaged in the processing, nonretail sale, and distribution of petrole- um and related products.4 At the times material, the Re- ' The charge was filed on June 12, 1980, and amended on July 7, 1980. The complaint was issued by the Regional Director for Region 17 on July 25, 1980. 2 The answer reflects that it was served on July 17, 1980 It also al- leges that "some or all of the claims" are bare ed by Sec 10(b) of the Act This affirmative defense was never explained or withdrawn. To the extent that it is predicated on the statute of limitations contained in Sec 10(b), it lacks merit as the charge, as amended, is timely in all respects a By order dated January 30, 1981 , I fixed the time for the filing of bnefs by all parties In so doing, the request that the parties be permitted to file reply briefs was granted and the time for the filing of reply briefs was fixed at March 6 , 1981 The same order specifically provided that in order to be timely filed and considered, brief s would have to be received at the Division of Judges, Branch Office, Sari Francisco, California on or before the date due The Respondent and the General Counsel filed timely opening briefs, which have been carefully considered. The Gener- al Counsel filed no reply brief The Respondent filed a reply brief reflect- ing that it was mailed from Kansas City, Missouri, on March 6, 1981 It was received on March 9, 1981 As the reply brief was not timely filed and no motion was made for an extension of time in which to file or to excuse the obviously late filing, it has not been considered 4 The Respondent admits that it is an employer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act and that it meets the Board's discretionary jurisdictional standards on the basis of the 455 spondent's Sugar Creek facility was managed by G. R. Helffrich, a supervisor and agent within the meaning of Section 2(11) and (13), respectively, of the Act. The Re- spondent and Oil, Chemical and Atomic Workers Inter- national Union, Local No. 5-672 (the Union), are parties to a collective-bargaining agreement applicable to certain of the Respondent's Sugar Creek employees.5 By its original terms, the collective-bargaining agreement is ef- fective for the period from January 8, 1979, through Jan- uary 7, 1981.6 The agreement-which was executed in February 1979-contained a "contract reopener," which granted the Union the right to strike during the term of the agreement, but not prior to January 8, 1980, if the Respondent and the Union could not successfully negoti- ate certain economic terms.7 In the period immediately prior to January 8, 1980, 10 employees (including the Charging Party) were absent from work and drawing benefits pursuant to the Sickness and Disability and Occupational Illness and Injury Plan (S&DB plan) maintained by the Respondent. The S&DB plan and other fringe benefit plans are incorporated, in effect, into the aforementioned collective agreement at article XI, section 1. A booklet entered in evidence de- scribes most of the fringe benefit plans specified in the collective agreement.8 Among other things, this booklet shows that in some instances, provision is made for the continuation of the coverage by some fringe benefits even though the employee is not actively working and in at least one instance even when the employee is on an excused leave without pay. Thus, under the description of the comprehensive medical expense plan, which re- quires an employee contribution only in the event a spouse and a child are insured together with the employ- ee or a dependent child between the ages of 19 and 25 is insured with the employee, the following is provided: Also, you may continue insurance under this plan while you are on leave of absence (other than mili- tary leave), suspension, or layoff by continuing your required contributions. direct inflow and direct outflow at the facility involved Accordingly, I find that it would effectuate the purposes of the Act to assert jurisdiction in this dispute 5 The Respondent admits that the Union is a labor organization within the meaning of Sec 2(5) of the Act and I so find The unit specified in the collective agreement is All employees, including messengers, under the supervision of the manager of the Sugar Creek, Missouri, refinery of the Respondent, excluding supervisory, professional, clerical , office and plant protec- tion employees The term of the original agreement was extended for a period of I year at the conclusion of the strike involved herein ' This and other findings herein related to the "reopener" are in accord with the parties' stipulation The "reopener" provision is not self- evident, however, in the copy of the collective agreement in evidence 8 In view of the result reached herein, a determination of which of the benefit plans specified in the descriptive booklet in evidence here and their precise operation with respect to the disabled employees is left to the compliance stage of the proceeding Suffice it to say that not all plans described in the booklet are specifically named in art XI, sec I This fact does not necessarily appear to be controlling, however, as the January 7, 1980 letter to unit employees (discussed below) makes specific reference to the employee stock ownership plan (which is not specified in art. XI) in a manner that indicates unit employees also participated in that plan 456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Under the vacation policy, the following appears: Absences with pay or Sickness and Disability plan benefits or for military duty will not reduce your vacation. Under the savings plan, which is incorporated in the col- lective agreement and which obliges the Respondent to match a specified savings amount designated by the em- ployee, the following appears: If you are on an approved absence without pay up to a limit of 30 consecutive calendar days, a Sav- ings plan deduction will be made from your earn- ings upon your return to work equal to what would have been deducted if you had not been absent. If you do not wish the deduction made, you must advise the company in writing within 7 days after you return to work. The total absences for which you can make up Savings plan deductions cannot exceed 75 sched- uled workdays in a calendar year. And under the retirement plan, the following appears: If you are on an approved leave of absence with- out pay for other then [sic] military service in excess of 90 days, you will accumulate retirement plan service for the regular hours of service that you would have worked during the first 30 consec- utive calendar days of each such absence. In any one calendar year, the total retirement plan service accumulated while so absent cannot exceed that ap- plicable to 75 workdays. The parties stipulated that, historically, the Respond- ent has administered the S&DB plan in such a manner that employees are eligible for S&DB payments only when they are sick and disabled and they are prevented by reason of such sickness or disability from working a shift they otherwise would be scheduled to works How- ever, a careful reading of the plan description in the em- ployee booklet makes no reference to a broad "otherwise scheduled to work" rule in describing the provisions of the plan. Instead, eligibility is described in the following manner: What This Plan Provides The Sickness and Disability and Occupational Ill- ness and Injury plan pays the wages or salaries of eligible employees in full or part when they are not able to work because of sickness and disability. One part of this plan applies to sickness or disability that is unrelated to your job; the other applies to occu- pational sickness or disability. Who Is Eligible? All regular wage and salary employees, in the case of occupational sickness or disability, are covered from the day they report to work. Non-occupation- al sickness and disability benefits are available to Hereinafter sometimes referred to as the "otherwise scheduled to work" rule. such wage or salary employees after a year of cred- ited service. Disqualifying circumstances under the S&DB plan (apart from the years of service requirement) are described in the following manner: You are not eligible for benefits while you are on vacation, leave of absence, suspension, or layoff. You will become eligible for these benefits at the time you are otherwise due to return to work. Benefits will not be paid for any disability result- ing from intoxication, improper use of drugs, unlaw- ful acts, or willful intent to injure yourself or an- other person, or as a result of working for another employer. In another proceeding involving this Respondent's oper- ation at another location, an administrative law judge specifically found "the plan does not require being scheduled for work as a necessary condition precedent to eligibility." See Amoco Oil Co., JD-(SF)-109-80, slip op. at 11 (1980). Pursuant to the contract reopener provision, the Union timely notified the Respondent of its desire to reopen the agreement and negotiate with respect to a wage increase and certain fringe benefits. There is no evidence that the matters that the Union sought to negotiate pursuant to the reopener in any way fell outside those matters that were contemplated by the reopener. Several negotiating sessions were held with regard to the issues raised by the Union's reopening notice prior to January 8, 1980. There is no evidence that those sessions produced an acceptable agreement. On the contrary, the parties' stipulation shows that on January 8, 1980, at 4 p.m., the Union com- menced a strike against the Respondent that continued thereafter until April 1, 1980. In apparent anticipation of strike action, the Respond- ent, by a letter dated January 7, 1980, undertook to advise all of its employees of the policies it intended to implement in the event a strike occurred as threatened. Apart from advising employees that they would not be paid wages while they engaged in a strike, the letter goes on to state that medical insurance premiums paid by the Respondent would not be paid during strike; that in the event a striker allowed his medical insurance to lapse, satisfactory proof of good health would be required before the individual could again participate in the plan; that under the retirement plan, hours not worked during the strike would not count as hours of service and peri- ods of no earnings in the 3 years preceding retirement would adversely affect the retirement benefit; that contri- butions to the savings plan would be suspended during the strike; that the period of no earnings during the strike would adversely affect the allocation of stock under the employee stock ownership plan; that S&DB benefits would not be paid for a disability that began during the period of the strike; that no vacations would be sched- uled during the strike unless circumstances warranted otherwise and that for each 30 consecutive days in which employees were not working, the first 2 weeks of their vacation would be reduced in accord with policy AMOCO OIL CO. 457 concerning vacations; that employees would not be eligi- ble for leaves for military reserve or militia duty during the strike; and that no funeral or jury pay would be granted during the strike . With respect to the group life insurance and long-term disability insurance, the Re- spondent advised employees that it would continue its regular contributions during the strike and advised em- ployees that their portion of the premium for this insur- ance would be required . In addition, the January 7 letter advised the unit employees that the Respondent would implement a lockout so that no work would be made available to unit employees who might otherwise desire to work. The letter advised those employees who desired to work to notify the Respondent so that in the event a decision was made to make work available to unit em- ployees during the strike, they could be notified . There is no evidence that any Sugar Creek employee (including any of the disabled employees) transmitted their desire to work during the strike. Following the commencement of the strike, the Re- spondent, by letter dated January 9, 1980, notified each of the disabled employees as follows: Today the OCAWIU, Local 5-672 commenced a strike at the Sugar Creek refinery . This has necessi- tated our establishing a staff program with supervi- sory and unrepresented personnel so that operations may continue safely, efficiently, and without inter- ruption. Accordingly, at this lime no work has been made available to employees in the bargaining unit who might otherwise be willing to work. Until such time as the strike ends or work is made available to employees in the bargaining unit, whichever occurs sooner, your current OI&I pay- ments are hereby suspended in accordance with the terms of the Plan. During the time these payments are suspended, however, you will continue to re- ceive your statutory workmen's compensation pay- ments. With respect to the status of your other forms of compensation and benefits, I direct your attention to my letter to all Sugar Creek refinery employees repre- sented by OCAWIU, Local 5-672 dated January 7, 1980. It is our earnest hope that this dispute will be quickly resolved and normal operations can be im- mediately resumed. [Emphasis added.] Prior to the discontinuance of the S&DB benefits, the Respondent made no investigation to determine whether any of its disabled employees (who were all union mem- bers in good standing) were engaging in any conduct ev- idencing public support of the strike , or whether or not they continued to be disabled. During the course of the aforementioned strike, the Respondent continued the operation of the refinery with supervisors and nonunit employees. The Respondent, in fact, implemented a lockout with respect to the bargain- ing unit employees so that even if a unit employee de- sired to work during the course of the strike , he or she was not permitted to do so. As noted above, the strike continued until April 1, 1980. The strike was concluded pursuant to a memoran- dum of agreement entered into on March 28, 1980. That agreement provides terms for the conclusion of the strike as well as substantive terms of employment. With respect to the former, the Union specifically agreed to withdraw "all unfair labor practice charges . . . relating to benefits such as . . . sickness and disability benefits." On April 3, 1980, the Union withdrew a pending unfair labor prac- tice charge (Case 17-CA-9428) wherein it alleged, inter alia, that the Respondent violated Section 8(a)(1), (3), and (5) of the Act by suspending or terminating "acci- dent and sickness benefits" and "disability benefits." In addition, the agreement provides for the resumption of the payment of S&DB benefits on the conclusion of the strike. The agreement concludes with a provision provid- ing that representatives of the Union "have accepted the terms set forth as described herein." There follows two signatures under the Respondent's name and seven signa- tures under the Union's name, including the of one "Lowell W. Rafferty." Although the General Counsel's complaint includes a "Lowell Rafferty" among the al- leged discriminatees, the Respondent made no alternative argument herein that it had information to the effect that the Rafferty alleged in the complaint actively participat- ed in the strike or gave public support for the strike. B. Additional Findings and Conclusions The complaint here alleges that the Respondent violat- ed Section 8(a)(1) and (3) of the Act by suspending the S&DB plan payments of January 8, 1980, and from that time until the first week in April 1980, failing and refus- ing to make S&DB plan payments to the 10 employees who had been receiving such benefits immediately prior to the start of the Union's strike. In his brief, the General Counsel asserts that by refusing to pay the S&DB bene- fits to employees excused from work because they are physically disabled when the able-bodied employees go on strike in circumstances where there is no evidence that the disabled employees actively participated in the strike or publicly supported the strike constitutes unlaw- ful discrimination. In support of that position, the Gener- al Counsel relies on the Board's decision in Emerson Electric Co., 246 NLRB 1143 (1979), enfd. as modified 650 F.2d 463 (3d Cir. 1981). The Respondent contends that Emerson is not applica- ble here because, at the commencement of the strike, it locked out all unit employees so that no work was scheduled for the duration of a strike by those employ- ees. The Respondent further argues that in order to be eligible to receive S&DB benefits, employees must be absent from work that they would otherwise be sched- uled to perform because they are disabled or ill. As no unit employee was scheduled for work during the strike (even if they desired to work), the disabled employees failed to meet all the criteria for the payment of benefits under the S&DB plan during the 1980 strike. According- ly, the Respondent asserts that it did not violate Section 8(a)(1) and (3) of the Act by refusing to pay S&DB ben- efits as alleged in the complaint 458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In addition, the Respondent contends that this action is barred by the agreement the Union entered into on March 28, 1980, wherein the Union specifically agreed to withdraw the unfair labor practice charge it had filed concerning the S&DB benefits. Contrary to the Respondent' s alternate argument, I find for the reasons stated by Judge Ricci and the Third Circuit in Emerson that this action is not precluded by the Union's agreement on March 28 to withdraw a simi- lar charge that it had filed. This argument is even less compelling here than in Emerson, where the charge was initiated by the Union that made a similar agreement whereas the instant charge was filed by an aggrieved em- ployee. It is unmistakable that the Respondent, by its January 9, 1980 letter to the disabled employees undertook to treat those employees as though they were strikers. This is evident from the language of the letter that advised the disabled employees that all benefits other than the S&DB benefit would be handled in accord with its Janu- ary 7, 1980 letter wherein the Respondent announced its plan to discontinue fringe benefit contr;butions and cred- its in the event of a strike. In these circumstances, the Respondent's claim that it was contractually privileged to discontinue the S&DB benefits is an unconvincing ex- planation for its conduct. In a previous case, the Re- spondent explained that it implemented its lockout policy at several locations during the 1980 strike for the pur- pose of maintaining industrial peace now in the future because of events that occurred at this and another loca- tion during and after a 1959 strike. (See Amoco Oil Co., 285 NLRB 918 (1980).) Even assuming that the Re- spondent's lockout objective is the product of a legiti- mate concern for labor peace, it does not follow that this objective is in any way enhanced by extending the lock- out policy to employees already unable to work in any instance because of their physical condition. When these facts are considered together with the fact that the "oth- erwise scheduled to work" rule is, at the very least, an expansive reading of the actual qualifying and disqualify- ing language in the S&DB plan, the fact that the Re- spondent could apply additional pressure against the striking employees by lumping the disabled employees into their ranks and the fact that the Respondent avoided a significant expenditure by so construing the S&DB plan, the Respondent's motives for discontinuing the S&DB as well as other benefits to its disabled employees appears significantly less pristine than its argument admits. On the contrary, I find that the clear preponder- ance of the evidence here demonstrates that the Re- spondent acted on January 9 to automatically alter the status of those employees who had been excused from work for medical reasons prior to the strike to the status of strikers once the strike began. Two of the three Board members who joined in the conclusion that the employer in Emerson acted unlawful- ly in discontinuing the payment of disability benefits at the outset of a strike were of the view that an employer was not justified in taking such action unless it had infor- mation that the disabled employees had acted affirma- tively to demonstrate public support for the strike. Member Jenkins, the third participant in the Emerson majority, was of the view that inasmuch as the majority had concluded that the disability benefit was an accrued benefit, a disabled employee was entitled to receive that benefit for as long as he continued to be disabled and without regard to whether he participated in strike ac- tivities. The Third Circuit essentially adopted the latter view and modified the Board's order accordingly. To date, the Board has not indicated whether it now acqui- esces in the view of the Third Circuit. I am bound in my considerations by the precedent of the Board until the Board acts otherwise or the Supreme Court rules other- wise. Iowa Beef Packers, 144 NLRB 615 (1963). Because of the variance in the analytical approach be- tween the Board and the Third Circuit, I deem it essen- tial to explain what I perceive to be material differences between this case and Emerson. In Emerson, the sole focus of the inquiry concerned the denial of disability benefits. Here, the Respondent's January 9 letter leaves no doubt that the Respondent acted to treat the disabled employees as strikers in all respects. On the basis of the language in that letter, it may be reasonably inferred that disabled employees here suffered losses significantly beyond the benefit provided in the S&DB plan. What- ever else they may have lost, the discriminatory act in this case is the Respondent's action automatically reclas- sifying its disabled employees as strikers and in this cir- cumstance, I fail to perceive why it is necessary to ana- lyze whether each benefit lost by each disabled employee was accrued or not as the employee should be entitled to be made whole for all losses suffered as a result of that discriminatory act. i ° With the possible exception of Raf- ferty, there is no evidence that any of the discriminatees engaged in any activities supportive of the strike. Hence, entirely apart from the fact that I am bound by the exist- ing Board precedent, it would seem to make no logical sense in this case to utilize the accrued benefit analytical approach unless the Board desires to return, sub silentio, to the presumption made in Southwestern Electric Power Co., 216 NLRB 522 (1975), that all disabled union mem- bers become strikers when their union calls a strike. Ac- cordingly, contrary to the allegation of the complaint, I find that the Respondent here violated Section 8(a)(1) and (3) of the Act by treating the 10 disabled employees named in the complaint as strikers from the outset of the strike in the absence of information that any of them acted affirmatively to demonstrate public support for the strike. Emerson Electric, supra. Having so found, I shall recommend that those individuals be made whole for all losses suffered as a result of the discrimination against them and not merely the loss incurred from the denial of disability benefits. The record here is not sufficient to conclusively deter- mine if the Rafferty named in the complaint is the same 10 In my judgment, this case illustrates the shortcomings of the ac- crued benefit approach as a legal analytical tool in cases of this nature. Where, as here, the Respondent's vacation plan provides that employees receiving S&DB benefits continue to accrue vacation credits, it does not require a great deal of imagination to perceive of a situation where a sinking union's picket line could be manned entirely by disabled employ- ees entitled to receive vacation credits Such an anomalous result is en- tirely predictable if these problems are analyzed strictly from a contrac- tual point of view without any regard to the impact of Sec. 7 of the Act. AMOCO OIL CO. 459 Rafferty who appears as a union signatory to the March 28 agreement . Be that as it may, I find and conclude that active negotiating committee members are tantamount to spokespersons for the economic strikers and are making common cause with the economic strikers . Accordingly, the make-whole remedy recommended herein will specif- ically preclude negotiating committee members from being made whole on and after the date of active partici- pation on the Union's negotiating committee during the course of the 1980 strike . The determination of the iden- tity of any such individual and 1 he commencement of their active participation on the Union 's negotiating com- mittee is left to the compliance stage of the proceeding. II. THE EFFECT OF THE UNFAIR LABOR PRACTICE ON COMMERCE The unfair labor practices of the Respondent found to exist in section I, above, occurring in connection with the Respondent's operations described therein, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Rafferty or others actively participated on the Union's negotiating committee, the Respondent's obligation to make them whole shall be limited to any period preced- ing such active participation . The computation of back- pay herein shall be in the manner provided by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), with in- terest as provided by the Board in Olympic Medical Corp., 250 NLRB 146 (1980), and Florida Steel Corp., 231 NLRB 651 (1977). And see, generally, his Plumbing Co., 138 NLRB 716 (1962). To the extent that it may be de- termined in the compliance stage of this proceeding that the Respondent must reimburse any trust fund in order to fully make the Charging Party whole for their losses, interest on such amounts shall be determined in accord- ance with the Board's discussion of that question in Pull- man Building Co., 251 NLRB 1048 (1980), and cases cited therein. It is also recommended that the Respond- ent be ordered to post the attached notice to employees [omitted from publication] at its Sugar Creek, Missouri refinery and to thereafter notify the Regional Director for Region 17 of the steps that it has taken to comply with the recommended order [omitted from publication] entered hereinafter. THE REMEDY Having concluded that the Respondent has violated the Act in the manner specified above, it is recommend- ed that the Respondent be required to cease and desist therefrom and to take certain affirmative action designed to effectuate the purpose of the Act. Having concluded that the Respondent treated those 10 employees who were excused from work for medical reasons when the Union's strike commenced on January 8, 1980, as strikers in all respects, it is recommended that the Respondent be required to make those employees whole for all the losses they suffered as a consequence of the Respondent's action in this regard . To the extent that Stanley Johnson may have retired on February 1, 1980, and the Charging Party may have been released by his physician to return to work on March 3 , 1980, the period for which the Respondent is obliged to make those two employees whole shall be so limited . To the extent that CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce or a business affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By automatically altering the employee status of Stanley Johnson, William Duncan, Danny Maxwell, Alice Ledbetter, C. Miller, Robert Wysong, Lowell Raf- ferty, Tom Harrison, John Lucas Jr., and Gary Hock- man on January 8 , 1980, from that of employees excused from work for medical reasons to that of employees en- gaged in a strike against it, the Respondent has violated Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended order omitted from publication.]