Amoco Oil Co.

770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Amoco Oil Company and Robert L. Fritts. Case 27- CA-6659 30 October 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 17 April 1981 Administrative Law Judge Joan Wieder issued the attached decision. The Re- spondent 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. The pertinent facts are as follows: Pursuant to a contract clause, the Oil, Chemical and Atomic Workers Union, Local No. 2-124 (OCAW or the Union), which represented hourly paid employees at the Respondent's Casper, Wyoming refinery, in- formed the Respondent on 26 October 1979 of its intent to open negotiations. The parties failed to reach agreement on the reopened items and, on 7 January 1980,1 the Union notified the Company that a lawful economic strike would begin at the refinery at 3:30 p.m. on 8 January. The Charging Party, a long-term employee of the Respondent, entered the hospital on 7 January, and the Re- spondent started to pay his sickness and disability benefits as of that date. After receiving the Union's strike notice, the manager of the refinery sent a letter to all employees represented by OCAW an- nouncing that no work would be made available at the outset of the strike to employees in the bargain- ing unit who might otherwise want to work.2 The letter further informed these OCAW-represented employees that they would not be eligible for bene- fits for any sickness, disability, or injury having its onset during the strike. That same day, the Re- spondent's manager sent letters to all individuals who were receiving sickness or disability payments at the time the strike announcement was received, i All dates hereafter are 1980 unless otherwise designated 2 Amoco has for many years maintained a policy under which it con- tinues to operate a facility during a strike with 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 The Respondent presented evidence that the policy was adopted after 1959 when its prior policy of permitting em- ployees to work during strikes allegedly resulted in violence and ostra- cism of employees who crossed picket lines at two other refineries not involved here This policy is not alleged to be unlawful and we express no opinion on the lawfulness of this lockout policy or its application to the Casper refinery in 1980 informing them of the status of various benefit pro- grams for the duration of the period when no work opportunities would be available for unit employ- ees. 3 The issue here involves the Respondent's suspen- sion of sickness and disability benefits to the Charging Party from the onset of the strike on 8 January until 1 April when the OCAW-represented employees returned to work. The complaint alleges that such suspension of benefits violated Section 8(a)(3) and (1) of the Act. The judge concluded that this case was controlled by Emerson Electric4 and that the Respondent's actions were unlawful under that precedent. In so concluding, the judge rejected the Respondent's proffered business reason for suspending benefits, that is, its stated policy of not scheduling bargaining unit employees for work during a strike had the effect of disqualifying the Charging Party from receiving benefits under the requirements of its S&D Plan. In Texaco, 285 NLRB 241 (1987), the Board ex- tensively reviewed the analyses of both Board and court cases in this area and expressly overruled the "coercive effects" theory of Emerson Electric. Rather, the Board (285 NLRB at 245) concluded that "the question of whether an employer violates Section 8(a)(3) or (1) by refusing to continue bene- fit 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."' 3 According to Terrence Rindal (whom the judge erroneously referred to as Randel), the manager of employee relations and accounting services at the Casper refinery, in addition to contractual benefits, several other corporatewide benefit plans are maintained by Amoco's parent company for all employees of the parent and its subsidiaries, including Amoco The Occupational Illness and Injury (OI&I) and nonoccupational Sickness and Disability (S&D) Plan is one such benefit It is noncontributory and is paid for by the employing company 4 Emerson Electric Co, 246 NLRB 1143 (1979), enfd as modified 650 F 2d 463 (3d Cir 1981), cert denied 455 U S 939 (1982). 5 As the Board noted in Texaco, supra, at 243 fn 12, citing NLRB Y. Great Dane Trailers, 388 U S 26, 34 (1967). The Court in Great Dane articulated the following test for alleged unlawful motivation First, if it can reasonably be concluded that the employer's dis- criminatory 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- cnmmatory 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 286 NLRB No. 80 AMOCO OIL CO. More recently, in Amoco Oil Co., 285 NLRB 918 (1987), the Board, applying the principles articulat- ed in Texaco to basic facts virtually indistinguish- able from those in this case, reversed the judge's findings that the Respondent there had 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 incapacitated employ- ees would otherwise have earned. The employee benefit handbook notes certain situations in which payments are discontinued, including , inter alia, leaves of absence, vacations, and layoffs; and pro- vides that benefits will resume when a disabled em- ployee is "otherwise due to return to work." The Board concluded that these listed events illustrate the general requirement that "work must be avail- able in order for a disabled employee to be entitled to continued payment of disability benefits." (Amoco, supra, at 920.) The Board further cited un- disputed 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 situa- tions including lockouts." (Ibid.) The Board further 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 920.) 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.) 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 lockout or "closed- gate policy," which has not been alleged to be un- lawful, regardless of employees' union membership 771 or participation in the strike.6 Accordingly, we shall dismiss the complaint in its entirety.? ORDER The complaint is dismissed. 6 In this regard, we find, contrary to the judge here and consistent with Amoco, supra, discussed above, that the policy and the Respondent's implementation of the Plan's dual eligibility requirements were not dis- criminatory We further note in this connection that the Respondent's prestrike letter to all OCAW-represented employees announced that no work would be made available to bargaining unit employees during the strike, as the judge stated in her background discussion It did not state that no work would be scheduled for union members, as she indicated in the section of her decision entitled "Discussion and Conclusions " 7 As in Amoco, supra at 919 fn 7, in view of our disposition of this case, we find it unnecessary to reach any contention concerning the effect of the Respondent's and Union's strike settlement agreement Daniel C. Ferguson, Esq., for the General Counsel. Robert M. O'Connell, Esq., of Chicago, Illinois, for the Respondent. Cecil R. Hedger, Esq. (Nelson & Harding), of Denver, Colorado, for the Respondent. DECISION STATEMENT OF THE CASE JOAN WIEDER, Administrative Law Judge. This case was heard in Casper, Wyoming, on December 16, 1980.1 The original charge was filed by Robert L. Fritts, an in- dividual, on April 1, 1980, and was amended on May 5. A complaint was issued on May 5 alleging that Amoco Oil Company (the Company or Respondent) violated Section 8(a)(1) of the Act by announcing the termination of sickness and disability benefits then being paid to medically excused employees on the commencement of a strike by the Union, and violated Section 8(a)(3) and (1) of the Act by, in fact, discontinuing such benefits to Robert L. Fritts on the commencement of the strike by the Union. Respondent admits making such announce- ment and terminating such payments during the course of the strike but denies that such activities were unlawful or in any way violated the Act. All parties were given a full opportunity to participate, to introduce oral evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Counsel for the General Counsel filed a timely brief on January 19, 1981. Respondent failed to file a timely brief. At the close of hearing, a brief date of January 20, 1981, 35 days after the close of hearing, was set and agreed to by all parties. No motion for an extension of time for filing briefs was submitted by any party. On January 21, 1981, at 8:29 a.m., Respondent filed a motion for an order re- quiring reply briefs in lieu of filing briefs in accordance with the originally established schedule. By order dated January 21, 1981, the motion to file reply briefs was denied based on a finding that Respondent failed to ex- plicte adequately a need for departing from the usually established practice of all parties simultaneously filing briefs. There was no showing why either the factual or ' All dates are in 1980 unless otherwise indicated 772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD legal exigencies present in this proceeding could not be adequately presented within the time frame set at hearing or, if any factor prevented such timely preparation of the brief, why a timely request for an extension of time to file briefs was not submitted . The order denying Re- spondent's motion is dated January 21 , 1981. On January 23, 1981, Respondent filed a reply brief to the brief of counsel for the General Counsel despite the order deny- ing its request. On January 27, 1981, counsel for the General Counsel filed a motion to strike Respondent's reply brief based on the order dated January 21, 1981, plus the contention that the counsel for the General Counsel advised Respondent 's counsel on January 22 of his understanding that the motion to file a reply brief had been denied and asserting that such brief had been filed in complete disregard of the January 21 order. On February 2, 1981, Respondent filed a reply to the General Counsel's January 27 motion to strike . Respond- ent's reply to the General Counsel's motion is 19 pages long, the major portion of which is addressed to the merits of the case, and the first several pages discuss the merits of its request to file reply briefs. The first stated reason is that Respondent was involved in identical pro- ceedings in other locations . How this circumstance war- rants the filing of reply briefs is unexplained . Second, it is argued that the administrative law judge in another proceeding involving Respondent ordered reply briefs at the close of hearing. Evidently this announcement of procedural change was made on January 15 or 16, which would have permitted telegraphic request for an exten- sion of time or a motion; the failure to file such is unex- plained. Additionally, the predicates for the judge's deci- sion in that case are not shown to be present in the in- stant proceeding and, if arguably such presence could be asserted, why such a procedure announced at the close of hearing in one proceeding should be implemented in another after the receipt of the General Counsel's initial brief in a separate proceeding has not been demonstrated. The third reason given for reconsidering the denial of the motion is that Respondent believes the General Counsel, in brief, failed to address a number of principles deemed critical to the proper resolution of the case. Why these principles could not be addressed initially within the time frame of the oirginal briefing schedule is unex- plained. The trial in Casper, Wyoming, was subsequent to another Amoco Oil Company proceeding in Novem- ber, in which the administrative law judge 's decision had been served December 31, 1980, affording Respondent adequate time to address itself to the issues it now seeks to raise through the device of a reply brief. If the briefing schedule orginally took into consider- ation the filing of reply briefs, there was no showing that they would be filed sequentially as adoption of Respond- ent's position would require; nor has there been a show- ing that such a deviation from the normal standard prac- tice before this Board is warranted here. On the con- trary, to permit a reply brief to be filed by Respondent after the receipt of the original brief of the General Counsel would require that the General Counsel be af- forded an opportunity to similarly reply to Respondent's position, which Respondent recognizes. This undue delay of the proceedings has not been shown to be required by the facts and circumstances present here . Respondent has failed to show where the original briefing schedule, which set the maximum allowable time for the filing of briefs, impaired its ability to present its position on both the law and facts of this case . The manner in which Re- spondent presented the evidence clearly indicates that it was fully prepared to present its position and nothing has been shown to appear in the General Counsel's case or brief that could be deemed a surprise or of any other character that would warrant implementation of the pro- posed plan . Accordingly, the request for reconsideration of the motion to file reply briefs is not shown to warrant a decision different from that originally rendered on Jan- uary 21, 1981. Respondent admits that it did not file appropriate pleadings in a timely manner, even though it knew-or it could have known on January 16-that reply briefs were permitted in another proceeding by the discretion of an- other administrative law judge. Additionally, Respondent fails to demonstrate why similar discretion should be ex- ercised in this case for it has failed to explain why the normal procedures provided for in the applicable Rules and Regulations are inadequate in the instant proceeding. Accordingly, on reconsideration of the matter, the deter- mination that good cause for deviation from the applica- ble standards has not been shown by the Respondent in the instant proceeding, nor has it shown good cause why it could not have filed a timely brief initially or filed a timely request for an extension of time to the Board. To permit the proposed sequential filing of briefs without the showing of good cause is prejudical to the parties who are entitled to a timely decision. Accordingly, on reconsideration of the denial of the motion to file reply briefs on January 21 , it is affirmed . Furthermore, the General Counsel 's motion to strike the reply brief is granted. On the entire record , including especially my observa- tion of the witnesses and their demeanor , I make the fol- lowing FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Company, a wholly owned subsidiary of the Standard Oil Company of Indiana, has at all times mate- rial maintained an office and place of business at Casper, Wyoming . The Respondent is now and has at all times material been engaged at its plant in Casper, Wyoming, in the refining of petroleum . The Respondent, in the course and conduct of its business, annually sells and ships goods and materials valued in excess of $50,000 di- rectly to points and places outside the State of Wyo- ming. Therefore, it is admitted, and I find , that the Com- pany is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Robert L. Fritts is a member of Oil, Chemical and Atomic Workers Union, Local No. 2-124 (the Union), which is a labor organization within the meaning of Sec- tion 2(5) of the Act. AMOCO OIL CO 773 III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The facts basically are not disputed. The dispositive issues are matters of law. The Charging Party has worked for Respondent more than 34 years. Approxi- mately in July 1979, Fritts was informed that he would need a cataract operation. He made arrangements for such operation on November 28, which contemplated that the operation would be performed on January 7 or 8, 1980. Fritts advised his supervisor of his need to have the operation on January 4, 1980. The Charging Party entered the hospital on January 7, 1980 Respondent started to pay Fritts his sickness and disability payments as of January 7, 1980. Pursuant to contract provisions that contained a re- opener clause, the parties have been renegotiating the terms and provisions of the applicable contract pursuant to a letter dated October 26, 1979, sent by the Union to the Respondent stating the Union's intent to open negoti- ations under that clause. The Company, consonant with standard practice, made plans to explore the possibility of successfully renegotiating the terms of the contract without a strike, and in recognition of the possibility that such an agreement could not be reached, prepared to continue the operations of the refinery in the event of a strike. On January 7, 1980, the Union notified the Com- pany that a strike would commence at 3:30 p.m., January 8, 1980. Subsequent to receiving the Union's strike notice, J. R. Cherer, the manager of the refinery since 1976 and an admitted supervisor, wrote a letter addressed to Amoco Casper Refinery employees represented by OCAW-IU Local 2-124. The letter informed the employees that be- :ause the Union informed them that a strike would occur: It is our intention to continue the operation of the refinery. We have established a staffing program with our supervisory and unrepresented personnel so that operations may continue safely, efficiently, and without interruption. Accordingly, no work will be made available at the outset of the strike to employees in the bargain- ing unit who might otherwise want to work. How- ever, if you desire to return to work, you should call 265-3390 and inform the person answering the phone of your name, phone number and job, and that you desire to resume working. Thereafter, if it is decided to make work available to employees in the bargaining unit, you will be notified. The letter further informs the above-described employees that they would not receive wages except for work pre- viously performed, informs them as to the status of other benefit programs, and, specifically stated as to S & D (sickness and disability) and 01 & I benefits (occupation- al illness and injury), "You will not be eligible for bene- fits for any sickness, disability or injury which begins during the period of the strike during which you would not have worked even though not sick, disabled or in- jured." Also on January 7, Cherer sent letters to all individ- uals who were receiving sickness or disability payments at the time the strike announcement was received. This letter similarly informs the employee that the announce- ment of the strike had led the Company to staff the oper- ation with supervisory and unrepresented personnel to permit operations safely and efficiently without interrup- tion. Therefore, these employees were informed that no work had been made available to anyone in the bargain- ing 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 sickness and disability payments are hereby suspended in accordance with the terms of the plan." There is no evidence indicating that any of the hourly employees were unrepresented by any union other than the OCAW or that any hourly employees were repre- sented. All employees, including supervisory and unrep- resented personnel, if there were any unrepresented per- sonnel, are covered by the same sickness and disability program. The evidence is devoid of any indication that any supervisory or nonrepresented personnel who con- tinued operating the plant during the strike were consid- ered to be sick or disabled and eligible for payments. However, the testimony of Terence W. Randal, the man- ager of employee relations and accounting services, who is responsible for the administration of the sickness and disability plan, specifically stated that such employees, as long as they were working, would be eligible to receive the payments under that benefit program. It is undisputed that all sickness and disability pay- ments were suspended as of 3:30 p.m., January 8, and continued suspended until the strike terminated and the employees who were represented by the Union returned to work on April 1, 1980. Fritts who was not released to return to work until April 18, 1980. He received for the period April 1 to 18 sickness and disability benefits. According to a booklet published by Respondent enti- tled "Employee Benefit Plans," the nonoccupational sickness and disability program is described on page 15 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 disability. After that, your benefits increase yearly to a maximum, after ten years, of full pay for twelve weeks and half pay for forty weeks-a full year of benefits if you need them. A schedule describing the benefits for different years of service indicates that an individual with 10 or more years service, such as the Charging Party, is entitled to 12 weeks of benefits at full pay and 40 weeks of benefits at half pay. The description of the sickness and disability plan, as described in the Company's booklet, does not limit re- ceipt of the benefits to having been scheduled for work. However, Terence W. Randal testified that the Company historically, to qualify for the plan that is paid for by the Company soley, must be verifiably sick and scheduled to 774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work before he is eligible to receive the benefits. The re- quirement for being scheduled to work is explained as follows: "he hasn't lost anything, and therefore . .. he does not receive benefits." For example, it is stated with- out refutation that if an employee is receiving sickness and disability benefits and then is laid off, his sickness and disability benefits are discontinued for the duration of the layoff. The payments will recommence when he is scheduled to return to work. The program is adminis- tered in this manner because the benefits were designed to compensate employees for what they would have re- ceived had they been scheduled to work. The only eligi- bility mentioned in the Company's employee benefit plan booklet is the inability of the employees to work because of sickness or disability. The contract is also silent as to the prerequisite men- tioned by Randal of being scheduled to work in order to be eligible to receive benefits. Article 8 refers to the ben- efit plans and section 8:1 provides as follows: This agreement shall in no way affect the status of employees under any of the following Benefit Plans for Employees of Standard Oil Company (In- diana) and subsidiaries: Employees' Sickness and Disability Benefits Plan and Occupational Illness and Injury Plan (as modified by Section 6:6 of this Agreement), Policy Concerning Vacations (as modi- fied by Section 6:7 of this Agreement), Retirement Plan, Group Life Insurance Plan, Long Term Dia- bihty Benefits Plan, Comprehensive Medical Ex- pense Plan, Employee Savings Plan, and Military Leave of Absence and Job Restoration Plan. It is agreed by the Union and the Company that issues pertaining to such subjects as the above may be bargained upon through the procedures set forth above, except that neither party shall have the right to have any such issue arbitrated. If any such issue is not settled as a result of negotiations between the parties, the Union shall have the right to refer such issues to the President of the Company whose deci- sion shall be final and binding upon both parties. The Company will advise the Union of any changes in any of the Plans mentioned in this section before making an announcement of same to employees rep- resented by the Union. Section 13:C of the same agreement provides that "the entire working agreement shall terminate automatically" in the event of a strike called in accordance with the terms of section 13:3 of the agreement. There is no alle- gation that the strike in this case did not follow the terms of section 13:3 of the agreement. Cherer indicated that as early as September 1979 at a managers' meeting, the upcoming negotiations were dis- cussed and they started preparing a preliminary schedule of what they were going to do to operate the plant in the event of a strike. The determination to operate the plant with salaried individulas has been its longstanding policy of many years. Therefore, their general philoso- phy is to start early in November, when the reopener was exercised, training the salaried employees that would operate the facility. The training varies according to the knowledge of the individual involved and the type of temporary assignment that individual would receive. Some of the training is intensive hands-on training, of many weeks' duration, and some training is very short. When Respondent received notification that the strike was going to occur, it was determined that it would not schedule any hourly employees to work and implement the plan to have the salaried employees continue operat- ing the facility. The basis for this decision was because of difficulties experienced during a strike occurring in 1959 where certain incidents occurred at two facilities referred to as the Sugar Creek and Texas City refineries. The decision not to schedule any of the hourly employ- ees for work was followed in strikes subsequent to 1959, including the industrywide strikes in 1969 and 1974 as well as the instant industrywide strike here under consid- eration. Cherer testified that illustrative of the events that occurred during the 1959 strike were personal obser- vations of the treatment of an individual named Clyde Lymance who returned to work early and subsequently "got the freeze treatment from those people who struck in 1959. No one would talk to him." Cherer felt that the bad feelings of those who did not return early toward those that did not participate for the entire duration of the strike was obvious. He stated that in certain control rooms at the Texas City facility they currently main- tained separate coffepots, one for the early returnees and one for those who did not choose to return to work. Cherer had no personal knowledge of any violence oc- curring during that strike. Respondent inferred that it was because of these experiences in 1959 that it had de- termined not to permit any hourly employees to work and during the 1980 strike none of the bargaining unit employees represented by the Union were returned to work prior to the cessation of the strike. Prior to returning to work, the Union and the Compa- ny entered negotiations wherein the Union proposed that the Company agree that employees who were receiving sickness continuation payments as well as other benefits be deemed eligible for coverage during the strike. The Company rejected this proposal. The Union, on Febru- ary 6, 1980, had filed a charge against the Employer al- leging that cessation of such sickness and disability pay- ments was a violation of Section 8(a)(1), (3), and (5) of the National Labor Relations Act. On March 25, 1980, the Union agreed to withdraw the charge and settle all issues raised in negotiations. On March 26, 1980, the Union signed a memorandum of understanding in which they agreed that, in accordance with existing company policy, an employee who is unable to work on the first scheduled return to work day after a strike due to sick- ness or accident will receive the benefits described under the sickness and disability or the OI & I plans. The memorandum also provided that the Union would with- draw all unfair labor practice charges, lawsuits, and/or grievances relating to those benefits as well as vacation and other benefits. The Company, in turn, agreed to re- instate immediately following the termination of the strike all the benefits that were discontinued during the strike. It is uncontested that both parties complied with all the provisions of the agreement. AMOCO OIL CO 775 Respondent placed into evidence a section of the bylaws of the Union that subjects members to discipline if they engage in acts that "tend to hinder the prosecu- tion of a strike." There is no testimony that Respondent relied on this provision in preparing the letters of Janu- ary 7 to employees informing them of the Company's de- cision to use only salaried employees to operate the facil- ity and to discontinue specified benefits including sick- ness and disability payments. It is unrefuled, however, that Respondent did not attempt to ascertain whether any employees in the bargaining unit or any other hourly employees, if such individuals work at the Casper facili- ty, who were sick or disabled at the time the strike com- menced, did or did not support the strike. As indicated in the evidence presented as well as the argument made on record, Respondent contends that it does not have to make such inquiry prior to the suspension of benefits be- cause no hourly employees were scheduled to work during the strike, that it had the right to not schedule employees for work during the strike, and that such ces- sation of scheduling abrogated the employees' entitle- ment to sickness and disability benefits that were paid in lieu of the payment of wages. Further, it was evident from the evidence of record that Respondent believes that the strike settlement agreement reached between the Union and the Company to withdraw all charges based on such cessation of disability payments should be bind- ing. Also, as indicated in its opening statement, Respond- ent does not consider that the case of Emerson Electric Co., 246 NLRB 1143 (1979), is applicable to this pro- ceeding because the basis for the suspension of benefits was not the strike but the longstanding practice of Re- spondent to lock out all hourly employees during the strike to preclude potential difficulties.2 B. Discussion and Conclusions The Board, in the Emerson Electric Co., case, supra, concluded that termination of sickness and accident ben- efits to employees who were physically unable to work on and after the date the strike commenced because other employees went out on strike, immediately on commencement of the strike, was violative of the Act on the basis of the reasons given by the then Chairman Fan- ning's dissent in Southwestern Electric Power Co., 216 NLRB 522, 523 (1975), which states as follows: The Respondent takes the simplistic position that as wages "under the law" are not continued for strikers, they are not continued for those on con- tinuing sick pay unless the recipients disavow the strike. In essence, my colleagues agree. This ignors 2 Respondent placed into evidence a T-shirt that is alleged to be indic- ative of the type of hostility exhibited by the strikers that could have re- bounded to the detriment of any employees that were working during the strike that were members of the bargaining unit or were considered hourly employees This evidence was not considered probative inasmuch as the decision to terminate the sickness and disability benefits and imple- ment its longstanding policy to not schedule any hourly employees who worked during the pendency of the strike was implemented and an- nounced prior to the commencement of the strike Accordingly, the T- shirt incident that occurred during the strike could not be considered a causative factor in the decision , nor was the incident itself so egregious as to legitimitize the decision Section 7 and the right of an employee to join in or refrain from concerted activity. Granted, these em- ployees on sick leave were entitled to no wages once their excused absences expired and they failed to return to work. It is a far cry for this Board to require that they disavow legal strike action by their Union during their sick leave in order to re- ceive their sick pay. Not only is it contrary to the statute, but it lacks support in Board precedent. Cases where the Board has sanctioned the discharge of presumed strikers in the context of strike in vio- lation of no-strike provisions are inapplicable. In short, these employees had a Section 7 right to refrain from declaring their position on this strike while they were medically excused. That they ex- hibited some strike support after medical release, and testified that if physically able they would have joined the strike, is irrelevant in my view. To the extent, however, that some evidenced strike by vis- iting the picket line and/or picketing before medical release, I would limit the amount of continued sick pay to the period ending with the date of such sup- portive action. In overruling the inconsistent holdings of Southwestern Electric Power Co., decision, supra, the Board stated in the Emerson Electric Co. decision (246 NLRB at 1144), supra, that: Accordingly, we now hold that for an employer to be justified in terminating any diability benefits to employees who are unable to work at the start of a strike it must show that it has acquired information which indicates that the employee whose benefits are to be terminated has affirmatively acted to show public support for the strike. The fact that the Company here determined to lock out all hourly employees prior to the commencement of the strike does not abrogate the applicability of the Em- erson Electric case decision nor does it result in a deter- mination that the termination of the benefits was for a proper motive and therefore cannot be found violative of Section 8(a)(3) of the Act. As then Board Member Fan- ning indicated in his dissent in the Southwestern Electric Power Co. case, the employee has the right to determine if he was going to join his counion members in their de- cision to withhold their services by joining in the strike. An individual who is on sick leave prior to the com- mencement of the strike and continued to be unable to perform his work duties cannot be assumed to have ceased his work in connection with a current labor dis- pute and consequently cannot be considered a striker.3 As the Court recognized in NLRB v. Fansteel Metal- lurgical Corp., 306 U.S. 240, 255-256 (1939): 8 Because individuals who have not announced their support for the Union who were on sick or disability leave prior to and continuing during the strike cannot be said to have voluntarily determined to with- hold their services and strike , the cases dealing with the cessation or con- tinuation of benefits to strikers are held inapplicable 776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The conduct thus protected is lawful conduct. Con- gress also recognized the right to strike-that the employees could lawfully cease work at their own volition because of the failure of the employer to meet their demands. Therefore, it is concluded that Fritts did not cease work as a striker but was deemed unable to work due to sick- ness and disability and, until he was afforded an opportu- nity to exercise his right to cease work or continue work, a presumption on the part of the Respondent that he exercised his right of choice or would be treated as if he had exercised his right of choice deprives him of those options guaranteed under Section 7 to join or re- frain from joining others in protected activity. An indi- vidual who is receiving sickness or disability payments when a strike commences, by definition, is not ceasing to withhold services as are the strikers, and therefore must be afforded the protection of Section 7 to exercise his option of joining or refraining from joining the strikers. By terminating the sickness and disability payments, the Respondent presumed such an election, based on the ac- tions of the other employees. The fact that in the instant case Respondent notified all employees that they would not be scheduled for work if they were hourly employees and the notification was addressed to all member of the Union does not present a situation so distinguishable from Emerson Electric as to warrant the application of a different standard of behav- ior warranting a different result. In the instant situation, the motivating factor for the termination of the payments was the strike. Work would have clearly been scheduled for all hourly employees except for the strike. Respond- ent, admittedly, did not ascertain whether all employees supported the strike. Furthermore, Respondent failed to demonstrate that the situation had such a potential for vi- olence or that the strikers' conduct was so egregious as to warrant abrogation of the normal protections afforded under Section 7 of the Act. Furthermore, even if some of the strikers' activities were shown to be egregious, that would have been subsequent to the deprivation of the benefits and also is deemed irrelevant in the instant situa- tion because Fritts could not be termed to be a striker. The Charging Party was disabled prior to the com- mencement of the strike and such disability continued until after the strike terminated. There was no showing that the strikers or the Union caused Respondent any concern that the continuation of sickness and disability payments would have resulted in the lengthening of the strike or caused objectionable activity. Accordingly it is concluded that Respondent has failed to present a valid business reason for abrogating Fritts' election under Sec- tion 7 to join or refrain from joining the strike for valid business reasons that outweigh the injury done to Fritts by denying him such an election. It is also concluded that there is a direct link between the decision to not schedule work, not pay sickness and disability payments to Fritts solely because of the strike that is a protected concerted activity. Other indications of discriminatory motive are: The letter informing em- ployees that in response to the notice of intent to strike g p the Company was not going to schedule any of the union mination of benefits was addressed to union members only. members for work; that although all employees were en- titled to sickness and disability payments , only those em- ployees that were affiliated with the Union, whether they were actively participating in the strike, would be denied such payments, such as Fritts; that the sickness and disability plan under which Fritts was receiving compensation prior to the strike was characterized as noncontributory and nontransferable does not alter the manner in which entitlement is garnered because it is provided, according to the benefit plan explanation, as a concomitant to the completion of specified years of serv- ice. Further, the plan does not require being scheduled for work as a necessary condition precedent to eligibil- ity. The imposition of such a condition precedent by Re- spondents in this particular situation where the Company elects, prior to any showing of necessary business pur- pose, to preclude an individual 's entitlement based on a strike entered into by other employees, clearly violates employees' Section 7 rights. It is clear that the mainte- nance and continuance of this practice makes member- ship in the Union as an hourly employee4 the sole crite- rion for the exclusion from work scheduling, and hence sickness and disability payments, is an act that itself tends to interfere with, restrain, and coerce employees who were otherwise eligible to receive that benefit, in the ex- ercise of their self-organizational concerted rights. See Jim O'Donnell, Inc., 123 NLRB 1639, 1643 (1959); Mel- ville Confections, 142 NLRB 1334, 1338 (1963), enfd. 327 F.2d 689 (7th Cir. 1964), cert. denied 377 U.S. 933 (1964). See also A. M. Steigerwald Co., 236 NLRB 1512 (1978). Also indicative of the motivation underlying Re- spondent's actions is the fact that in the letter sent to all employees on January 7 mention was made of the fact that those who wished to continued to work during the strike should call the number stated there, in the event the Respondent does decide to permit some employees who did not wish to participate in the strike to return early prior to the termination of the strike. The decision to not schedule any union members for work evidently was not final or clearly irrevocable. That the Union may discipline a member if he of she acted to hinder a strike does not, even absent a union- security provision in the collective-bargaining agreement, infer that the employee who joins the Union voluntarily could not hinder the strike and therefore was inferential- ly a supporter of the strike. The Board, in the Emerson Electric decision, specifically overruled similar reasoning contained in the Southwestern Electric Power Co. decision. As Chairman Fanning noted in his dissent in the above- quoted protion, "it is a far cry for this Board to require that they disavow legal strike action by their union during their sick leave in order to receive their sick pay." For that reason, the Board in the Emerson Electric case, supra, requires the employer to first acquire infor- mation indicative of the employees' public support for the strike prior to the termination of sickness and disabil- ity benefits. 4 It should be noted that the letter informin the em loyees of the ter- AMOCO OIL CO. 777 The Respondent introduced evidence showing that the Union had agreed to withdraw charges arising out of the Respondent's termination of sickness and disability bene- fits during the strike. As Judge Ricci found in his deci- sion in the Emerson Electric case, such a contention is without merit for the public right supersedes the private agreement. Furthermore, the language of the agreement does not clearly abrogate the rights of union members or other employees from filing charges. There is no explicit waiver of these rights.5 Accordingly, it is found that Respondent violated Sec- tion 8(a)(3) and (1) of the Act by discontinuing sickness and disability benefit payments for Robert L. Fritts from 3:30 p.m. January 8 through March 28, 1980. It is further found that Respondent violated Section 8(a)(1) of the Act when, without prior investigation, it notified em- ployees in advance of the strike the sickness and disabil- ity payments as well as occupational illness and injury payments would be suspended for the duration of the strike, as these policies did not specifically exempt em- ployees who were receiving these payments under the plans at the commencement of the strike. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section III, above, found to constitute unfair labor practices, oc- curring in connection with its operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow thereof. 5 See Emerson Electric, id., citing National Licorice Co. v. NLRB, 309 U.S. 350 (1940); Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261 (1940); Agwilines, Inc. v. NLRB, 87 F.2d 146 (5th Cir. 1936); J. I. Case Co. v. NLRB, 321 U.S. 332 (1940); and Boire v. Teamsters, 476 F.2d 778 (5th Cir. 1973). CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Oil, Chemical and Atomic Workers International Union and its Local Union 2-124 are labor organizations within the meaning of Section 2(5) of the Act. 3. The Respondent has violated Section 8(a)(3) and (1) of the Act by withholding payments of sickness and dis- ability during the strike from Robert L. Fritts on com- mencement of a lawful strike until the termination of the strike. It has not been shown that the employee was a participant in the strike. 4. The Respondent has violated Section 8(a)(1) of the Act by announcing to employees to employees prior to and during the strike that the members of the above- named Union would not continue to get sickness and dis- ability and occupational illness and injury benefit pay- ments during the strike, which thereby interfered with the employees' rights under the Act, a violation of Sec- tion 8(a)(1) of the Act. 5. The above-described unfair labor practices affect commerce within the meaning of Act. THE REMEDY Having found that the Respondent unlawfully with- held accident and sickness benefits from Robert L. Fritts and took other actions that are found to be unfair labor practices, it will be recommended that the Respondent be required to cease and desist therefrom and to take af- firmative action designed to effectuate the policies of the Act. It having been found that Respondent unlawfully with- held sickness and disability payments from Robert L. Fritts during a strike at times when Robert L. Fritts was not a strike participant, this employee should be reim- bursed for benefits lost under these payment plans from January 8, 1980, at 3:30 p.m., the date and time the strike commenced, and when the payments were discontinuted, through March 28, 1980, when the strike terminated. [Recommended Order omitted from publication.] V