Energy Cooperative, Inc.

ENERGY COOPERATIVE Energy Cooperative, Inc. and Julius Sako. Case 13- CA-19985 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN, BABSON, AND CRACRAPT On April 24, 1981, Administrative Law Judge Wallace H. Nations issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-excep- tions and a brief in response to the Respondent's exceptions. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The alleged violations in this case are based on the Respondent's withholding from sick or disabled employees benefits under its sickness and accident (S & A) benefit plan during a lawful economic strike at the Respondent's East Chicago refinery. Local 7-210 of the Oil, Chemical , and Atomic Workers International Union (the Union) for many years represented Arco-Sinclair employees, includ- ing those at the East Chicago refinery . The Re- spondent purchased the East Chicago refinery in 1976 and agreed to honor the then-existing con- tract. In 1979 the Respondent entered into a con- tract with the Union containing a reopener clause permitting the Union to strike after January 8, 1980, 1 if the parties failed to reach agreement. On January 8, the Union commenced an eco- nomic strike. Immediately, the Respondent ceased paying S & A benefits to 11 employees who had been receiving benefits before the strike began. On April 15, the Respondent and the Union set- tled the strike and executed a memorandum of agreement. According to the agreement's terms, all unit employees received increases in wages and benefits. Further, in consideration of certain bene- fits not paid as a result of the strike , the Respond- ent agreed to pay the company portion of the em- ployees' health insurance premiums, which the em- ployees had assumed during the strike. The memo- randum of agreement also expressly provided that payment of the insurance premium was in full set- tlement of any pending or future grievance or NLRB charge related to benefits. 2 I All dates are in 1980 unless otherwise specified s The full text of the pertinent provisions of the memorandum of agreement is as follows. 6. It is agreed that in consideration of certain benefits not paid as a result of the strike for each employee represented by Local 7-210, 635 The judge found that during the economic strike the Respondent withheld S & A benefits from the 11 employees based on the fact that the remaining work force engaged in strike activities in violation of the Act. The judge rejected the Respondent's contention that the strike settlement agreement re- quired dismissal of the complaint. The judge, rely- ing on the Board's decision in Emerson Electric Co.,3 held that the settlement agreement did not affect the Board's power to prevent unfair labor practices or warrant the Board 's abdication of its jurisdiction or its obligation to enforce public rights. In its exceptions, the Respondent argues that the complaint should be dismissed based on the parties' settlement agreement. For the reasons set forth below, we agree.4 The Board held in Texaco, Inc., 285 NLRB 241, 243 (1987), that the withholding of contractual ac- cident and sick benefits to disabled employees during a strike can be a violation of Section 8(a)(3).5 The Board went on to note, however, that an employer may successfully defend against an al- legation of discrimination or coercion in the denial of employee benefits by proving, inter alia, "that a collective-bargaining representative has clearly and unmistakably waived its employees ' statutory right to be free of such discrimination or coercion."6 OCAW, as of January 8, 1980, and continuing on the active payroll as of the termination of the strike , the Company shall pay any Com- pany contribution to the Medical, Life and Accidental Death & Dis- memberment Plan owed or paid by the employee during the strike. It is further agreed by the parties that such payment is in full settle- ment of any grievance, NLRB charges or action pending or in the future related to the handling of all benefits during the strike 8. The parties agree that they will not file any legal or National Labor Relations Board actions as a result of this strike and that any such action filed or pending will be withdrawn and become null and void It is understood and agreed that the Acceptance of this Memoran- dum of Agreement constitutes a full, final and complete resolution of all outstanding issues existing between the parties and the contract reopen provision is hereby cancelled in its entirety; and that this Memorandum of Agreement amends the Labor Agreement between the parties signed January 19, 1979, accordingly. Emerson Electric Co, 246 NLRB 1143 (1979), enfd. as modified 650 F 2d 463 (3d Cir 1981), cert. denied 455 U S 939 ( 1982). 4 The Respondent also argues as a threshold matter that this case should be deferred to arbitration . Based on our finding below that the Union relinquished all pending and future claims with regard to the non- payment of benefits during the strike , we find deferral to be inappropri- ate We further find it unnecessary to address the Respondent 's defense that the withholding of benefits was lawful under the collective-bargain- ing agreement ° In Texaco the Board expressly overruled the Emerson Electric Co. theory of violation and held that whether an employer's witholding of accident and sick benefits to disabled employees during a strike violates Sec 8(a)(3) will be resolved by application of the Great Dane test for al- leged unlawful conduct Texaco. 285 NLRB 241 citing NLRB v Great Dane Trader. 388 U S. 26 (1976) ° In Texaco, at 246, however, and Texaco. Inc, 287 NLRB 903 (1987), the issue of whether similar strike settlement agreements waived such statutory rights was not before us. Thus, in neither case was it contended that the agreements applied to the charges filed by individual employees 290 NLRB No. 78 636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In Texaco, the Board cited Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983), and Conoco, Inc. v. NLRB, 740 F.2d 811, 815 (10th Cir. 1984), for the proposition that an employee's statutorily pro- tected right to receive such benefits free of dis- crimination can be waived.? In Metropolitan Edison, supra at 705, the Court noted that it "long has rec- ognized that a union may waive a member's statu- torily protected rights." In this regard, it stated: Such waivers are valid because they "rest on 'the premise of fair representation' and presup- pose that the selection of the bargaining repre- sentative 'remains free,"' NLRB v. Magnavox Co., 415 U.S. 322, 325, (1974) (quoting Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 280 (1956)); cf. NLRB v. Allis-Chalmers Manufac- turing Co. [388 U.S. 175], at 180- 181. Waiver should not undermine these premises. Thus a union may bargain away its members ' econom- ic rights, but it may not surrender rights that impair the employees' choice of their bargain- ing representative . See NLRB v. Magnavox Co. [415 U.S. at 325].8 The Court went on to reject a union argument that although a union may waive collective rights it may not waive individual ones. It noted that in Ford Motor Co. v. Huffman, 345 U.S. 330 (1953), "the Court recognized that in securing the good of the entire bargaining unit, some differences in the treatment of individual union members might occur .."9 Waiver of an employee's statutorily pro- tected right to receive benefits free of discrimina- tion imposes no constraints on the employee's abili- ty to choose a representative . It is directly analo- gous to a union's bargaining away its member's economic rights. Therefore, the right to receive contractual S & A benefits is clearly waivable by the Union subject to the duty of fair representation. Assessing the clarity with which a statutory right must be waived, according to Metropolitan Edison, requires consideration of the circumstances of each case.' ° Thus, determining whether such a waiver has occurred depends crucially on context and the specific circumstances presented . A clear and unmistakable waiver can occur in any of three ways: by express contract language , by the parties' conduct including bargaining history and past prac- tices, or by a combination of both.'' In light of the entire record, we find such a clear and unmistak- able waiver here. The language of the parties' strike settlement agreement evinces a clear intent to give up certain benefits in exchange for other payments. In this regard, the pertinent provision of the memorandum of agreement states that , in consideration of bene- fits not paid during the strike, the Respondent agreed to pay its portion of the employees ' health insurance premiums, which the employees had as- sumed during the strike. Immediately following this language is the further agreement by the parties that this payment is in "full settlement of any grievance, NLRB charges or action pending or in the future related to the handling of all benefits during the strike." Thus, it was expressly in return for the Union's relinquishment of all pending and future claims with regard to all benefits not paid during the strike that the Respondent agreed to provide a limited payment to all employees, includ- ing those who were sick or disabled during the strike. Finally, the strike settlement agreement states that acceptance of the agreement "constitutes a full, final and and complete resolution of all out- standing issues between the parties ." This provision leaves no doubt about the parties' intent to finally and completely resolve all issues, including those related to the administration of employee benefits during the strike. That this language clearly contemplates within the term "benefits not paid as a result of the strike" the contractual S & A benefits withheld from sick or disabled employees at issue here is reinforced by the relevant bargaining history. The strike settle- ment bargainers recognized the S & A benefit issue and explicitly dealt with the issue during negotia- tions. The Respondent's manager of industrial rela- tions testified that, during negotiations leading up to the strike settlement agreement, the Union's rep- resentative asked that employees disabled prior to the strike be paid the S & A benefits that they had been denied during the strike . His unrebutted testi- mony reveals that he responded that the settlement package was all management could offer. Thus, the parties' conduct in negotiations additionally indi- cates that they understood that the settlement, which was ultimately agreed on, did not include S & A benefits payments.' 2 7 Texaco, at fn. 23. e Metropolitan Edison at 705-706. v Id. at 707. 10 Metropolitan Edison, 460 U.S at 709, cited in Electrical Workers IBEW Local 1395 (Indianapolis Power) v NLRB, 797 F 2d 1027 (D C Cir. 1986); Pertec Computer Corp., 284 NLRB 810 (1987 ); Indiana & Michigan Electric Co., 273 NLRB 1540 (1985), enfd . 599 F2d 227 (6th Cir. 1986). " C & P Telephone v. NLRB, 687 F.2d 633, 636 (2d Cir 1982), cited with approval in United Technologies Corp.. 274 NLRB 504, 507 (1985). See also ChallengeCool Bros., 282 NLRB 21 (1986), Boise Cascade Corp., 279 NLRB 422 (1986), and Suffolk Child Development Center. 277 NLRB 1345 (1985) 12 Moreover, our finding that the Union knowingly waived employee entitlement to S & A benefit- is further bolstered by testimony that af- fected employees were aware of that fact when the settlement agreement was presented for ratification. ENERGY COOPERATIVE Based on all the above, we conclude that the parties' settlement agreement establishes that the Union clearly and unmistakably waived its sick and disabled employees' right to receive contractual S & A benefits for the duration of the strike. Regarding whether to give effect to the private agreement between the Union and the Respondent with respect to the individual employee claim here, we emphasize that we adhere to the principle that the Board acts in the public interest to enforce public, not private, rights. Consistent with that view, however, we look favorably on private strike settlements that result in the amicable resolution of labor disputes and thus serve the public interest as well as that of the parties.113 We must not disre- gard, therefore, a lawful and voluntary strike settle- ment agreement, but must determine whether giving full effect to the settlement agreement will effectuate the purposes and policies of the Act. 114 Our analysis of the substance of the agreement and the circumstances in which it was reached con- vinces us that giving full effect to the Union's waiver of the employees' right to receive contrac- tual benefits will effectuate the purpose and poli- cies of the Act. We recognize that a statutory right, the employees' right to receive these benefits free from discrimination, is involved. It is for that reason that the clear and unmistakable waiver standard is applicable here. See discussion of Met- ropolitan Edison and Texaco, Inc., 285 NLRB 242, supra at fns. 5-10, and accompanying text. But just as we apply that demanding standard when it is ap- plicable and has been met, there are sound reasons for honoring the results of the collective bargaining that has produced the waiver of the statutory right. 115 The employee rights involved here are the same rights the Board found to have been lawfully and effectively waived in its 1985 Texaco decision; see footnote 13 above. As the Board said in that deci- sion concerning the policy reason for giving effect to the similar strike settlement agreement in that case: to Texaco. Inc., 273 NLRB 1335 (1985). In that case, the Board re- evaluated and redefined the Emerson Electric approach toward settlement agreements relied on by the judge here. 14 This policy is consistent with the one the Board articulated recently with respect to private settlements of unfair labor practice charges in In- dependent Stave Co., 287 NLRB 740 (1987), which cites, inter alia, Texaco, Inc., 273 NLRB 1335. 15 Cf. NLRB v. Magnavox Co, cited in Metropolitan Edison, discussed supra at In. 7, and accompanying text (a waiver in derogation of certain basic employee rights by a bargaining representative is not permitted, even if the bargaining representative clearly and unmistakably agrees to it). We additionally note that there has been no fraud, unlawful coercion, or duress by any of the parties in reaching the settlement, that the settle- ment was to the overall benefit of all unit employees , and that the indi- vidual charge was not pending at the time the settlement was entered into. See Independent Stave, discussed above at fn 14. 637 In order to promote the parties' desire to re- solve their dispute voluntarily, we should pro- vide every reasonable encouragement that their disputes be resolved on as comprehensive a basis as their strike settlement agreement would indicate. [273 NLRB at 1337.] We note that in that Texaco case, the Union was the sole charging party, and no individual employ- ee sought to litigate his rights, as distinguished from the instant case. We, however, do not find that this changes the result. The Union here ik' au- thorized as the exclusive bargaining representative to bargain on behalf of the employees regarding the receipt of the employee benefits. It did so here, and the Respondent was entitled to rely on the au- thority of the bargaining representative to establish employee entitlement to contractual benefits, and, further, to fully and completely settle all issues in dispute, subject to the duty of fair representation. To hold otherwise would frustrate the goal of achieving amicable resolution of labor disputes. In this regard, as we discussed at footnote 9 and ac- companying text, the Supreme Court expressly rec- ognized in Metropolitian Edison, supra, that a union may choose to waive individual rights, in securing the good of the entire unit.16 In short, we find that the Union has clearly and unmistakably waived employee rights, which were waivable by the Union, and that giving effect to the agreement of which this waiver was a part will effectuate the purposes and policies of the Act. Ac- cordingly, the complaint is dismissed.17 CHAIRMAN STEPHENS, concurring. I join the majority opinion but write separately only to suggest that the facts of this case do not afford us an opportunity to plumb the limits of the rule that we announce today. In this case we are presented with the question of whether to give effect to a strike settlement agreement, negotiated between an employer and a union, that purports to compromise and waive the rights of unit members individually to seek redress from the Board for al- leged violations under the Act, specifically discrim- ination prohibited by Section 8(a)(3). The issue is unique insofar as the individual charging parties here were not signatories to the settlement agree- 16 See also Mahon Y. NLRB, 808 F 2d 1342 (9th Cir 1987), affg. Alpha Beta Co., 273 NLRB 1546 (1985), in which the court noted that a union is empowered to bind employees it represents wholly apart from their sepa- rate consent. 19 To the extent that the Board's affirmance of the judge 's conclusions in Texaco. Inc., 259 NLRB 1217, 1218 fn. 2 (1982), enfd. 700 F2d 1039 (5th Cir 1983) (when the judge rejected a substantially identical employ- er contention about the effect of a similar settlement agreement with re- spect to charges filed by individual unit members) could be read as being inconsistent with the decision we reach today, that case is overruled ENERGY COOPERATIVE 637 Based on all the above, we conclude that the parties' settlement agreement establishes that the Union clearly and unmistakably waived its sick and disabled employees' right to receive contractual S & A benefits for the duration of the strike. Regarding whether to give effect to the private agreement between the Union and the Respondent with respect to the individual employee claim here, we emphasize that we adhere to the principle that the Board acts in the public interest to enforce public, not private, rights. Consistent with that view, however, we look favorably on private strike settlements that result in'the amicable resolution of labor disputes and thus serve the public interest as well as that of the parties.13 We must not disre- gard, therefore, a lawful and voluntary strike settle- ment agreement, but must determine whether giving full effect to the settlement agreement will effectuate the purposes and, policies of the Act.14 Our analysis of the substance of the agreement and the circumstances in which it was reached con- vinces us that giving full effect to the Union's waiver of the employees' right to receive contrac- tual benefits will effectuate the purpose and poli- cies of the Act. We recognize that a statutory right, the employees' right to receive these benefits free from discrimination, is involved. It is for that reason that the clear and unmistakable waiver standard is applicable here. See discussion of Met- ropolitan Edison and Texaco, Inc., 285 NLRB 242, supra at fns. 5-10, and accompanying text. But just as we apply that demanding standard when it is ap- plicable and has been met, there are sound reasons for honoring the results of the collective bargaining that has produced the waiver of the statutory right. 's The employee rights involved here are the same rights the Board found to have been lawfully and effectively waived in its 1985 Texaco decision; see footnote 13 above. As the Board said in that deci- sion concerning the policy reason for giving effect to the similar strike settlement agreement in that case: "Texaco, Inc., 273 NLRB 1335 (1985). In that case, the Board re- evaluated and redefined the Emerson Electric approach toward settlement agreements relied on by the judge here. 14 This policy is consistent with the one the Board articulated recently with respect to private settlements of unfair labor practice charges in In- dependent Stave Co., 287 NLRB 740 (1987), which cites, inter alia, Texaco, Inc., 273 NLRB 1335. 15 Cf. NLRB v. Magnavox Co., cited in Metropolitan Edison, discussed supra at fn. 7, and accompanying text (a waiver in derogation of certain basic employee rights by a bargaining representative is not permitted, even if the bargaining representative clearly and unmistakably agrees to it). We additionally note that there has been no fraud, unlawful coercion, or duress by any of the parties in reaching the settlement, that the settle- ment was to the overall benefit of all unit employees, and that the indi- vidual charge was not pending at the time the settlement was entered into. See Independent Stave, discussed above at fn. 14. In order to promote the parties' desire to re- solve their dispute voluntarily, we should pro- vide every reasonable encouragement that their disputes be resolved on as comprehensive a basis as their strike settlement agreement would indicate. [273 NLRB at 1337.] We note that in that Texaco case, the Union was the sole charging party, and no individual employ- ee sought to litigate his rights, as distinguished from the instant case. We, however, do not find that this changes the result. The Union 'here"is' au- thorized as the exclusive bargaining representative to bargain on behalf of the employees regarding the receipt of the employee benefits. It did so here, and the Respondent was entitled to rely on the au- thority of the bargaining representative to establish employee entitlement to contractual benefits, and, further, to fully and completely settle all issues in dispute, subject to the duty of fair representation. To hold otherwise would frustrate the goal of achieving amicable resolution of labor disputes. In this regard, as we discussed at footnote 9 and ac- companying text, the Supreme Court expressly rec- ognized in Metropolitian Edison, supra, that a union may choose to waive individual rights, in securing the good of the entire unit.16 In short, we find that the Union has clearly and unmistakably waived employee rights, which were waivable by the Union, and that giving effect to the agreement of which this waiver was a part will effectuate the purposes and policies of the Act. Ac- cordingly, the complaint is dismissed.17 CHAIRMAN STEPHENS, concurring. I join the majority opinion but write separately only to suggest that the facts of this case do not afford us an opportunity to plumb the limits of the rule that we announce today. In this case we are presented with the question of whether to give effect to a strike settlement agreement, negotiated between an employer and a union, that purports to compromise and waive the rights of unit members individually to seek redress from the Board for al- leged violations under the Act, specifically discrim- ination prohibited by Section 8(a)(3). The issue is unique insofar as the individual charging parties here were not signatories to the settlement agree- 11 See also Mahon v. NLRB, 808 F.2d 1342 (9th Cir. 1987), affg. Alpha Beta Co., 273 NLRB 1546 (1985), in which the court noted that a union is empowered to bind employees it represents wholly apart from their sepa- rate consent. " To the extent that the Board's affirmance of the judge's conclusions in Texaco. Inc., 259 NLRB 1217, 1218 fn. 2 (1982), enfd. 700 F.2d 1039 (5th Cir. 1983) (when the judge rejected a substantially identical employ- er contention about the effect of a similar settlement agreement with re- spect to charges filed by individual unit members) could be read as being inconsistent with the decision we reach today, that case is overruled. ENERGY COOPERATIVE conduct that discourages (or encourages) union membership (Sec. 8(a)(3)); and (b) a nonstatutory entitlement to S & A benefits payable during peri- ods of disability, which are granted to employees individually solely by virtue of the Union's having previously obtained such benefits at the bargaining table.2 The majority is correct to recognize the latter aspect and to allow the Union the power to barter a portion of that contractual right away (that is, to allow suspension of payments during certain circumstances) in return for other economic considerations that the Union in its discretion sub- sequently deems to be more beneficial to the unit as a whole. However, we must not lose sight of the statutory right involved. As is evident from the holding of Texaco, Inc., 285 NLRB 241 (1987), a decision that involved the same underlying labor dispute and strike as the instant one, it is prima facie unlawful discrimination for an employer to suspend payment of accrued S & A benefits to sick or disabled em- ployees solely because unit employees engage in a protected strike . The vice of such conduct is that it "surely may have a discouraging effect on either present or future concerted activity ."3 Yet the fact that this discriminatory effect may occur does not necessarily foreclose the union from agreeing to tolerate it. The Court in Metropolitan Edison was willing to subject union officers to disparate pun- ishment because such discrimination could be linked to the union's waiver of the right to strike. Similarly, in the instant case, there is a nexus be- tween the discriminatory denial of the S & A bene- fits and the Union's decision regarding constraints it can accept on the employees ' exercise of their right to strike. The Supreme Court has long recog- nized that a union does have the inherent authority as exclusive bargaining representative to agree to restraints on the statutory right to strike.4 If a union can agree to waive the right to strike during a contract term or the right to refuse to cross a lawful picket line, the union can surely agree to tolerate a restraint such as the one in the instant case, which only burdens (in the sense of creating certain financial disincentives) rather than bans out- right the exercise of the right to strike. It is true that the waiver here was obtained under circumstances that were arguably different than the purported waiver that the employer in 2 Without a contract, employees who are sick or disabled and cannot report to work would not have been entitled to compensation . See Gener- al Electric Co., 80 NLRB 510, 511 (1948) (employer is not required to finance an economic strike against it by remunerating strikers for work not performed). 0 NLRB v. Great Dane Trailers, 388 U.S. 26 (1967). 4 See NLRB v. Allis-Chalmers Mfg. Co, 388 U.S. 175,180 ( 1967). 639 Metropolitan Edison thought it had obtained.5 There the asserted waiver was part of a collective- bargaining contract that was presumably negotiated in a context free of unlawful coercion. Here, in contrast, there is antecedent unlawful conduct-the denial of S & A benefits-which normally triggers an obligation on the part of the Board to remedy and deter. However, this distinction should not necessarily limit the ability of the Union here to ne- gotiate waivers of statutory rights. The unlawful discrimination was in direct response to the strike called by the Union, it ceased on termination of the strike, and it did not appear to have a lasting detri- ment to either the bargaining relationship or the ability of the employees to engage in protected concerted activity. Moreover, as noted above, the statutory violation was rooted in the contractual benefits that the Union itself had previously ob- tained. Under these circumstances, it was entirely appropriate for the Union to settle the statutory violations as part of a comprehensive overall agree- ment that restored labor peace, resolved the con- tract issues that gave rise to the dispute, and pro- vided an overall improvement in the terms and conditions of the unit employees, including the dis- criminatees. In sum, concerning the first branch of the Metro- politan Edison test, I conclude that the employees' statutory right to be free from discrimination is not simply an "economic" right, capable of union waiver because the union and the employer are able to assign a monetary value to the right and treat it like a bargaining chip. Because of the nexus here between the waiver of right against discrimi- nation and the Union's privilege to waive the right to strike, I am satisfied that the Union had the power to enter into an agreement that might effec- tively lead to a dismissal of the discriminatees' charges against the Respondent. But whether a union, on behalf of particular employees and with- out their express individual consent , could waive other types of statutory violations in other con- texts, in my view, would have to be carefully ex- amined in future cases.6 5 As noted above, a waiver of statutory rights was not found in Metro- politan Edison, but the Court reached this conclusion on the grounds that there was insufficient evidence of a clear and unmistakable waiver. As a threshold matter, however, the Court clearly sustained the power of the union to negotiate into the collective -bargaining agreement a limited waiver of its union officers' protection against discrimination. The record shows that at least some of the I I discriminatees knew the terms of the settlement agreement, but it is uncertain whether all of them were so aware . Two of the discriminalees even participated in a ratification vote, although the record does not disclose how they voted. For purposes of establishing whether the Union clearly and unmistakably intended to waive the statutory rights of the charging party and other discriminatees, this evidence is certainly probative . However, I would not equate it with the evidence of individual express consent that the Board, Continued 640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The remaining aspects of the Metropolitan Edison analysis-whether the Union's action comported with the duty of fair representation and whether the clear and unmistakable waiver standard was satisfied-do not require extended discussion. There is no evidence that the Union in reaching this settlement agreement engaged in any type of discriminatory conduct that might constitute a breach of the duty of fair representation.7 Furthermore, I agree with my colleagues' assess- ment that the Union did manifest a clear and un- mistakable intent to compromise the charging par- ties' claims for relief under the Act. MEMBER CRACRAFT, concurring. Like my colleagues, I would dismiss the com- plaint because the Union clearly and unmistakably waived disabled employees' rights to sickness and accident plan benefits (S & A benefits) in the strike settlement agreement executed between it and the Respondent." In doing so, however, I rely only on the language of the agreement-specifically, the second sentence of clause 6-and the undisputed fact that S & A benefits were discussed during the negotiations leading to the agreement. The second sentence of clause 6 of the strike set- tlement agreement provides: "It is further agreed by the parties that such payment is in full settle- ment of any grievance, NLRB charges or action pending or in the future related to the handling of all benefits during the strike" (emphasis added). I in other decisions, has found relevant . See Alpha Beta Co., 273 NLRB 1546, 1547 (1985) (settlement negotiated by union was subsequently ap- proved by apparently all affected employees ), petition for review denied 808 F.2d 1342 (9th Cir. 1987), Coca-Cola Bottling Co., 243 NLRB 501, 502 (1979); Central Cartage Co., 206 NLRB 337 (1973). See also Airport Parking Management Co., 264 NLRB 5, 13 (1982), enfd. 720 F.2d 610 (9th Cir 1983) (Board decided not to defer to strike settlement agreement be- cause, inter alia, no evidence that employees understood agreement to waive their right to pursue claims arising out of strike). Compare Lectro- melt Casting Co., 269 NLRB 933, 934 ( 1984) (strike settlement agreement gave discriminatees the option of accepting settlement on an individual basis; those who accepted it waived statutory rights whereas those who rejected it could pursue remedy with the Board ), with Hotel Holiday Inn De Isla Verde, 278 NLRB 1027, 1028 (1986) (complaint dismissed on grounds of union-negotiated strike settlement agreement which "[a]ll the affected discharged strikers were aware of," did not object to, and by conduct indicated acceptance of its terms). r See Teamsters Local 310 (Duval Corp.) Y. NLRB, 587 F.2d 1176, 1181, 1184-1185 (D.C Cir. 1978), on remand 243 NLRB 1157 (1979). Compare United Aircraft Corp. (Pratt & Whitney), 192 NLRB 382, 388 (1971), peti- tion for review denied in pertinent part on other grounds sub nom. Ma- chinists Lodges 743 & 1746 Y. United Aircraft Corp, 534 F.2d 422, 450-451 (2d Cir. 1975), with Laher Spring Bi Electric Car Corp., 192 NLRB 464, 466 (1971). ' Except for the circumstances mentioned below, I would defer this proceeding to arbitration in light of the history and quality of the parties' bargaining relationship, the absence of union animus, the Respondent's willingness to resort to arbitration , the scope of the arbitration clause, and the fact that contract interpretation ii central to resolution of this dis- pute. See Collyer Insulated Wire, 192 NLRB 837 (1971); United Technol- ogies Corp., 268 NLRB 557 (1984). Due to the length of time this case has been at the Board, however, deferral at this point would be inequitable as it would only further delay disposition of the matter at issue. read this sentence to mean that the Union ex- changed the right to grieve the Respondent's han- dling of all benefits during the strike for the pay- ment specified. Thus, the Union clearly and unmis- takably waived any possible contractual claim to S & A benefit entitlement during the strike . The bar- gaining history of the strike settlement agreement shows S & A benefits were discussed in relation to settling the strike, which bolsters the finding that S & A benefits are encompassed within the Respond- ent's "handling of all benefits during the strike." In conclusion, because the Union has clearly and unmistakably waived disabled employees' entitle- ment to contractual S & A benefits by forgoing its right to contractually grieve the matter , the Re- spondent cannot have committed an unfair labor practice by withholding these benefits. Rochelle Golub, Esq., for the General Counsel. Glenn R. Patterson and Palmer Singleton Jr., Esqs., of Highland, Indiana, for the Respondent. DECISION STATEMENT OF THE CASE WALLACE H. NATIONS, Administrative Law Judge. The original charge in this case was filed on June 3, 1980, and amended on June 17, 1980. The original com- plaint issued on June 30, 1980, and was amended July 1, 1980. Respondent's answer to the complaint is dated July 7, 1980, and was amended July 1, 1980. The complaint alleged that immediately on the commencement of an economic strike at its Indiana facility, and continuing until the end of the strike , Respondent ceased paying sickness and accident disability benefits (S and A Bene- fits) to named unit employees " previously receiving such benefits and, by such act, has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) of the Act. In its answer, Respondent denies the commission of any unfair labor practices and affirmatively asserts that a memoran- dum of agreement between the Respondent and Local 7- 210 of the Oil, Chemical, and Atomic Workers Interna- tional Union acts as a bar to the filing of the complaint in this case. A hearing was held before me in Chicago, Illinois, on February 9 and 10, 1981. Briefs have been re- ceived from the General Counsel and Respondent. On the entire record in this case and from my observa- tion of the witnesses and their demeanor I make the fol- lowing ' The alleged discriminates are. Julius Sako, Leroy O'Donnall, Paul Ferrantelli, Donald Hensley , Andrew Habzansky, Edward Kolesky, Jack Dowell, Harry Wickhorst, Jimmy Siokos, Robert Fnsbie, and Mary Ka- sperek. ENERGY COOPERATIVE 641 FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation , is engaged in the business of petroleum refining and processing with an office and principal place of business located at 3500 In- dianapolis Boulevard, East Chicago, Indiana. During the year preceding issuance of the complaint , Respondent sold and shipped goods valued in excess of $50 ,000 from its East Chicago, Indiana facility directly to points locat- ed outside the State of Indiana . I find that Respondent is an employer within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdic- tion in this case. 11. THE LABOR ORGANIZATION INVOLVED Local 7-210, Oil, Chemical, and Atomic Workers International Union , AFL-CIO (the Union) is a labor or- ganization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Energy Cooperative, Inc. (ECI or Respondent) was formed in 1976 by nine agricultural cooperatives in re- sponse to the oil embargo of 1973- 1974, during which these cooperatives lost their source of energy products, basically gasoline and diesel oil, to supply their farm member-owners. Seeking to find a secure source of such products, the cooperatives formed ECI and acquired an Arco-Sinclair refinery in East Chicago, Illinois. At the time ECI acquired the involved refinery in 1976, it agreed to honor the contract that existed between Arco, the previous owner, and the Union, as it pertained to the involved refinery. For many years prior to that purchase, and at all times material , Local 7-210 has been recog- nized as the bargaining representative of a unit of pro- duction and maintenance employees and a unit of clerical employees employed at the refinery. Successive collec- tive-bargaining agreements between the Local and the respective owners of the refinery have historically con- formed with an industrywide bargaining program or pat- tern developed by the Oil, Chemical, and Atomic Work- ers International Union. The most recent collective-bar- gaining agreement entered into by Respondent, the Local, and the International Union went into effect on January 8, 1979. Article XXXI provided for the reopen- ing of negotiations on wages, health care benefits, and vacations no earlier than November 1 , 1979. The reopen- ing provision provided that in the event the parties could not reach agreement the International and the Local had the right to engage in an economic strike subsequent to January 8, 1980. Pursuant to appropriate notice, Respondent ECI and Local 7-210 commenced negotiations on the reopened subject. The two meetings and other communications be- tween the parties during the period from November 1, 1979, through January 7, 1980, focused on efforts to exempt Respondent from any industrywide strike action called by the International , on Respondent's assurance to conform to any pattern established for the industry in ne- gotiations to settle a strike . Neither of the parties antici- pated the strike at Respondent's refinery even if the International called an industrywide strike on or after January 8, 1980. At a meeting called by Local 7-210 Secretary-Treasur- er Dean Bainbridge, on January 7, 1980, for the same afternoon, Bainbridge presented Respondent's manager of industrial relations, Barry Brock, with a copy of a notice from the International 's president that Local 7- 210 would strike Respondent on January 8, 1980. Brock testified that he announced to the Local in 1978 a com- pany policy that S and A benefits, among others, would be cut off in the event of a strike . Brock reiterated the policy at the January 7 meeting with Bainbridge. Bain- bridge had earlier opposed Respondent's stated policy and again at the meeting opposed Respondent's intention to cut off the S and A benefits for those employees on medical leave. He also questioned Brock about Respond- ent's handling of insurance premiums. Bainbridge was told by Brock that he would get back to him on the issue of premiums. On January 8, 1980, at 4:15 p.m., the strike commenced. Prior to and on January 8, 1980 , the 10 production and maintenance unit employees and the clerical employee named in the complaint were absent from work on medi- cal leave due to physical disabilities. Each had been re- ceiving contractual S and A benefits prior to that date. Immediately on commencement of the strike , as admitted by Respondent, it terminated payment of S and A bene- fits to these 11 employed. During the strike, Mary Kasperek died, and Harry Wickhorst received medical certification of recovery. The other nine employees involved remained physically disabled and were unable to work for the duration of the strike. Throughout the negotiations to settle the strike, the Local urged Respondent to reinstate the S and A benefits to those employees who had been receiving them prior to the strike. Ultimately, the strike was settled on April 12, 1980, and Respondent resumed payment of S and A benefits to the nine employees who were still disabled. The Local, on behalf of its employees, includ- ing employees named in the complaint, entered into a memorandum of agreement in which Respondent was re- leased of all liability for its actions in relation to the strike, including alleged and potential unfair labor prac- tices. Employees Andrew Habzansky and Harry Wick- horst participated in the ratification vote for approval of the memorandum of agreement , which ended the strike. B. Employer's Defenses The General Counsel urges that the controlling case with respect to the subject matter involved in this pro- ceeding -is Emerson Electric Co., 246 NLRB 1143 (1979). The Board, in Emerson Electric, affirmed with modifica- tions the recommended Order of an administrative law judge, holding that employees receiving sickness and dis- ability benefits at the outset of the strike were, in gener- al, entitled to continue to receive such benefits during the course of the strike unless such employees publicly declared their support for the strike. In the face of Emer- son Electric, Respondent in this proceeding has raised a 642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD number of defenses, none of which I find valid. These defenses will he discussed below in the order that ap- pears most logical, though not necessarily in the order of their importance. 1. Respondent contends that the Board should have deferred this proceeding for arbitration. Relying on Gen- eral American Transportation, 228 NLRB 808 (1977), Re- spondent urged that the instant case be deferred under Collyer Insulated Wire, 192 NLRB 837 (1971). Respond- ent's reliance is misplaced. In General American Transpor- tation , the Board clearly stated its opposition to deferral in cases alleging violations of Section 8(a)(3) of the Act. The instant case involves individual protected rights aris- ing out of the Act and neither Respondent nor the Local had ever indicated willingness to arbitrate the issues raised here. The Board has affirmed an administrative law judge's decision that issues similiar to those raised in this proceeding are not appropriate for deferral. Kansas City Power & Light Co., 244 NLRB 620 (1979). I find that the issues involved should not be deferred for arbitration and find that they are properly before the Board. 2. Respondent asserts that Emerson Electric establishes an unconstitutional irrebutable presumption in violation of due process rights under the 14th Amendment to the United States Constitution to the extent that the Board has established a presumption that an employer violates the Act when it terminates its payment of existing S and A benefits to disabled employees during a strike. This ar- gument is apparently directed at another forum and will not be discussed at length. However, I do not believe that the Board established an irrebutable presumption in Emerson Electric. If it had proper proof, Respondent could have shown that it acquired information that indi- cated that the employees whose benefits are to be termi- nated had affirmatively acted to show public support for the strike and, having acquired this information, and acting on it, terminated the benefits. As will be demon- strated, the applicant has not made such a showing, and failure to do so does not demonstrate that it was denied its due process rights, only that it violated the Act. 3. Respondent raised as an affirmative defense and motion to dismiss paragraph 8 of the memorandum of agreement executed by Local 7-210 and Respondent in settlement of the strike. In pertinent part, paragraph 8 provides that neither party to the memorandum will file any charges with the National Labor Relations Board as a result of the strike. At the hearing, Respondent indicat- ed that paragraph 8 directly related to paragraph 6 of the memorandum in which the parties agreed that Re- spondent would pay its portion of the insurance premi- ums on behalf of employees during the strike "in consid- eration of certain benefits not paid as a result of the strike, and that such payment was in full settlement of any grievances, NLRB charges or actions pending or in the future related to the handling of all benefits during the strike." It is clear that the Board's power to prevent unfair labor practices "shall not be affected by any other means of adjustment or prevention that has been or may established by agreement, law or otherwise," Section 10(a) of the National Labor Relations Act. The memo- randum of agreement is not binding on the Board and does not warrant the Board's abdication of its jurisdic- tion or its obligation to enforce public rights. Emerson Electric, supra, and cases cited therein; Lammert Indus- tries Corp., 229 NLRB 895, 924 (1977). Respondent's motion is denied. 4. Respondent urges strenuously that Emerson Electric is not controlling and diapositive of the issues in this pro- ceeding as the instant case may be distinguished on its facts from Emerson Electric. In Emerson Electric, supra at 3, the Board stated: "in rejecting this rationable, we con- clude that an employer may not rely on such speculative grounds to justify the termination of existing disability benefits to employees which, as found here by the ad- ministrative law judge, had accrued to them as a result of past work performed." In the instant proceeding Respond- ent argues that the S and A benefits involved are not "accrued as a result of past work performed," within the meaning of Emerson Electric. Respondent urges that the collective-bargaining agreement provides that S and A benefits are wages, and that an employee is qualified so that the wages become due and owing if (a) The employee is medically certified as being tem- porarily disabled and unable to work. (b) The employee was normally scheduled to work during the period of disability. The collective-bargaining agreement, article XI, states, inter alia 1. All regular employees shall receive wages during periods of physical disability by reason of sickness and injury, subject to the following rules and regulations. 8. Payments of wages during periods of physical disability shall be based on the employee's normal working schedule. In computing the number of days' pay an employee is entitled to receive under this Plan in any calendar year, pay allowance will be made for the actual number of normally sched- uled working days within the period of such ab- sence. Any pay for overtime work shall not be con- sidered in determining rate of wages for the purpose of disability payment hereunder. 18. The Plan shall be subject to the Grievance and Arbitration Procedure of the Articles of Agree- ment. Respondent contends that the S and A benefits plan set forth above is merely a wage continuation plan re- quiring that an employee actually be scheduled to work during the period of his or her disability to receive bene- fits. Respondent argues that because no union members were scheduled to work during the strike, none of the discriminatees were entitled to continue to receive bene- fits during the strike. In support of its position, Respond- ent argues that because paragraph I refers to benefits as "wages", and paragraph 8 refers to the employees "normal work schedule" and paragraph I denies pay- ments of benefits to disabilities commencing during a va- cation, leave of absence, or layoff, an employee must be actually scheduled to work to receive benefits under the plan. ENERGY COOPERATIVE 643 I disagree. Paragraph 3, article XI, provides for great- er benefits for more senior employees, demonstrating to me the benefits are paid to employees for work per- formed by them in the past, not in the present. When viewed in conjunction with paragraph 9, article XI, and the context of the entire contract, I find that the refer- ence in paragraph 8, article XI, to an employee's normal work schedule describes the basis on which an employ- ee's benefits are computed, rather than requiring an em- ployee to actually be scheduled to work a particular day to receive benefits. Various other provisions of the con- tract contain similar language to establish norms for the employees' hours of work and rates of pay. Article VI of the contract defines the "regular schedule work hours" and the "regular" workweek for day employees and shift employees. Article VIII provides for pay differentials for shift employees "regularly assigned" to shift work. Arti- cle IV discusses the effect of a temporary assignment of an employee to a job classification other than "regularly assigned classification." It appears that an employee could become disabled while working in a classification or during hours other than those in which the employee normally works. In that event, article XI provides that benefits will be based on an employee's "normal work schedule." Moreover, article IX, on vacations, also sets out the basis for computation of the employees' vacation pay in substantially similar language to paragraph 8, arti- cle XI. It would be illogical to argue that to get vacation pay an employee must actually be scheduled to work at the time that employee is scheduled to take vacation be- cause the amount of vacation pay is based on the "regu- larly scheduled workweek, exclusive of overtime." As noted in the General Counsel's brief, the record is vague with respect to Respondent's operations to the extent that disabled employees are literally scheduled to work during their absence. It appears that while disabled employees are listed somewhere in order to retain their seniority in rank on a particular process crew or unit, an- other employee is temporarily transferred to that crew or unit to perform the scheduled work. Moreover, bene- fit checks are automatically prepared by the payroll de- partment by computer from information about the em- ployee's regularly scheduled workweek and rate of pay without regard for whether the employee is actually "scheduled" for work. Testimony of Respondent's em- ployees establishes that the work schedule utilized during the course of the strike was prepared by Respondent in 1978 in anticipation of a strike and only contained the names of management personnel or personnel recruited from outside the refinery. No unit employees were in- cluded in that work schedule, even though Respondent admitted it had no idea how widespread support would be before the strike.2 Moreover, there is no evidence in 2 In other testimony elicited by Respondent , it has taken the position that it believed the strike would be widespread because of the past histo- ry of strikers against the involved refinery Based on research by some of its employees of earlier strikes, it appears that no refinery employee had ever crossed a picket line established by the Local As noted earlier, however, none of the responsible personnel of Respondent had any actual strike experience with the Local. the record that failure to be "scheduled" to work during the strike affected unit employees' rights or benefits in respects any other than those at issue in this proceeding. I believe the record clearly demonstrates that the sick- ness and disability benefits plan involved provides bene- fits to sick and disabled employees when they are phsi- cally unable because of past work performed. An argu- ment similar to that made above by Respondent in this case was rejected by the administrative law judge in Em- erson Electric. In Emerson Electric, the administrative law judge found that S and A benefits which, as described in his decision appear very similar to those at issue in the instant case, accrue to employees, who were receiving them at the start of a legitimate economic strike of other employees. As the administrative law judge's analysis and findings in this respect were upheld by the Board on review, I conclude that the S and A benefits here in- volved are "accrued" benefits within the meaning of Em- erson Electric. In a related defense, Respondent urges that it did not rely on speculative grounds to justify the termination of existing disability benefits to its employees and that it had a legitimate business reason for terminating such benefits. Respondent urges that the Board has failed to carry its burden of proof imposed in NLRB Y. Great Dane Trailers, 388 U.S. 26 (1967). It urges that Great Dane clearly holds that there must be proof that an em- ployer's actions fall within one or two categories before an 8(a)(3) unfair labor practice can be sustained. There must be proof that the employers' conduct was "inher- ently destructive" of employees' rights, or that the harm resulting from the employer's action was "comparatively slight." Respondent argues that because the named dis- criminatees were not entitled to wages for S and A bene- fits under the provisions of the collective-bargaining agreement for the reasons set out above, there was no adverse impact on employees that can in any way be held to be "inherently destructive." or to have a "com- paratively slight" impact on those employees' rights. Respondent states on brief that the Board in Emerson Electric, supra, found, by inference, that the employer's actions in that case were "inherently destructive" of em- ployees' rights for several stated reasons. A review of the Board's decision in that proceeding will reveal that the reasons stated by Respondent were not mentioned by the Board, although they formed part of the reasoning underlying the decision reached by the administrative law judge. However, even if Respondent is correct that such reasons are necessarily implicit in the Board's deci- sion, I believe all material aspects of Emerson Electric, which led to the Board's ultimate decision there, are also present in the instant case. The reason believed material by Respondent are (a) Because the collective-bargaining agreement pro- vided for payment of S and A benefits during the course of the strike due to the accrued and vested nature of those benefits. (b) Because the employer had been notified prior to the strike by the Union that certain employees receiving S and A benefits would not be participating in the strike. 644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (c) Because a number of employees receiving S and A benefits prior to the strike called the employer shortly after the strike and protested the denial of S and A bene- fits, specifically indicating to the Company that they were not in fact participating in the strike. (d) Because the employer terminated S and A benefits before there was any showing of how widespread the strike would be. (e) Because the employer relied on speculative grounds to justify the termination of those benefits to the employees. Respondent urges that none of the facts are present in the record of this proceeding. I disagree. First, I have al- ready found that the S and A benefits involved are ac- crued and vested benefits, at least within the meaning of Emerson Electric. Although Respondent may not have been notified specifically prior to the start of the strike that the involved discriminatees were excused from work by their sickness or injuries. Certainly, there is nothing in this record to indicate that at the outset of the strike Re- spondent had any positive knowledge that any of the dis- criminatees intended to participate in the strike.3 I believe that the Board's decision in Emerson Electric requires that an employer have some positive knowledge or proof that employees in the position of the discrimina- tees in this case actively intend to support a strike rather than placing a burden on the employees to expressly dis- avow the strike to the employer in order to continue to receive their benefits during the course of the strike. Regarding Respondent's reason in paragraph (c), at least one discriminatee, Harry Wickhorst, notified a re- sponsible management person on January 9 that he was not withholding his labor from the Respondent, but that he was off sick. This discriminatee was informed that his position made no difference whether he would get his benefits. As in Emerson Electric, the Employer Respond- ent in this proceeding did terminate the S and A benefits before there was any showing of how widespread the strike would be and, in my opinion, Respondent relied on speculative grounds to justify the termination of those benefits to the employees. It appears that the decision to terminate the benefits was made well prior to the actual institution of the involved strike or notification that a strike was imminent. a Evidence was adduced that the Local prepared picket rosters from Respondent's seniority list, which included the names of all the discrimin- atees except Mary Kasperek. While it appears that these picket rosters were distributed among employees and/or posted at the refinery, there is no evidence that shows that management personnel of Respondent were aware of these rosters at the time that Respondent made or implemented its decision to terminate the disability benefits or that they played any role in the decision-making process. The picket rosters were amended shortly after the onset of the strike to reflect that the discriminatees were not participating in the picketing. Similarly, Respondent offered into evi- dence a copy of the Local's bylaws obtained from the Local pursuant to a pretrial subpoena to show that all union members were required to be supporters of any strike action. However, art. IV, sec. 4(8), of the bylaws merely permits the Local to take disciplinary action against members who engage in conduct that tends to render prosecution of a strike. There is no record evidence that Respondent's management was aware of the bylaws when a decision was made to terminate the disability benefits. Moreover, such provision is inadequate to prove that employees affirma- tively acted to support the strike, especially in view of the Local's protest of the termination of the S and A benefits to employees who were dis- abled at the start of the strike. Even if a legitimate business purpose for termination of existing S and A benefits rebuts a presumption of dis- criminatory motivation in accordance with the principles set forth in NLRB v. Great Dane Trailers, supra, I believe that Respondent acknowledges that the decision to ter- minate the S and A benefits during the strike had been grounded in a policy developed by the Respondent in 1978. The policy was implemented in the 1980 strike be- cause of the following stated reasons: (1) Although the contract was reopened, the strike terminated Respondent's obligations under the contract. (2) S and A benefits are like wages and Respond- ent was not obligated by law to finance a strike against itself. (3) Respondent was obligated to conserve its re- sources. (4) It wanted to prevent fraud by preventing strikers from attempting to collect benefits by claim- ing they had suffered a disability during the strike. Respondent admitted that it had not distinguished between employees who were disabled prior to the strike and strikers may have attempted to make ini- tial claims during the strike. The S and A benefits issue is accrued benefits, and as found above, Respondent cannot claim any legitimate business purposes for its conduct on this ground (par. 2). The other stated "legitimate business purposes" urged by Respondent were considered by the administrative law judge and the Board in Emerson Electric, and rejected, and I do the same. 5. Respondent also argues that there is ample evidence in the record to prove that the employees showed public support for the strike within the meaning of Emerson Electric, and thus enmeshed themselves in the ongoing strike activity to such 'an extent as to terminate their right to continue disability benefits. With respect to dis- criminatees Sako, Wickhorst, Farrentelli, Dowell, Hab- zansky, and Siokos, Respondent argues that they publicly supported the strike by applying for unemployment com- pensation benefits in March. In each of the instances in which these discriminatees applied for state benefits, they indicated on their application forms to the Indiana Em- ployment Security Division that they were entitled to benefits for the reason that they were on strike or in- volved in a labor dispute as of January 8, 1980. Howev- er, the testimony of these six discriminatees about their experiences in applying for unemployment compensation benefits reveals that, in spite of their explanations why they were applying for benefits, the government officials who aided them in completing the forms insisted that they put down that Respondent was on strike as the reason that they were "unemployed," and that other rea- sons were unnecessary since all the applications of em- ployees in the oil industry were being processed togeth- er. I do not believe that an application for unemploy- ment compensation benefits constitutes public support for a strike, where, as here, the employees' benefits were in dire financial straits because of the discontinuance of their S and A benefits. Moreover, Respondent did not ef- ENERGY COOPERATIVE 645 fectively acquire information about these benefits appli- cations until sometime during the preparation for the in- stant proceeding. Respondent also relies on the fact that none of the dis- criminatees were fined or otherwise disciplined by the Union for failing to ratify or participate in the strike. It urges that though employees are not required to declare their position on the strike to an employer there is noth- ing to prohibit them from doing so to the Union, and had they so indicated their position in opposition to the strike to the Union, disciplinary action would have taken place. It must be noted that several of the discriminatees when asked at the hearing whether they did support the strike replied in the negative. I believe this to be immate- rial in any event. The discriminatees are not required by the Board's decision in Emerson Electric to publicly dis- avow the strike to continue to receive disability benefits, only to refrain from publicly supporting the strike. Again, knowledge of whether the Union did or did not discipline the discriminatees for failure to support the strike would not come into the hands of Respondent until after the end of the strike. Lastly, Respondent notes that two of the employees participated in the ratification vote that concluded the strike, and that each of the employees named in the com- plaint testified at the hearing that they would not have crossed the picket line to go to work but for their dis- ability. Again, such information did not come into the hands of Respondent until after the end of the strike, and in any event do not constitute public support for the strike. As held by the Board in Emerson Electric, a show- ing of participation in the strike does not justify post hoc Respondent's initial termination of benefits to the discri- minatees. Any employee, disabled or sound, who affirma- tively demonstrates his support of the strike by picketing or otherwise showing public support for the strike, has enmeshed himself in the ongoing strike activity to such an extent as to terminate his right to continue disability benefits. The employees' actions in support of the strike, however, may not be used to deprive them of any bene- fits for time away from work prior to their supportive action. Based on the evidence presented in this case, I find that none of the discriminatees participated in the strike or lent public support for the strike within the meaning of Emerson Electric. IV. THE REMEDY Based on these findings and conclusions, I ultimately find and conclude that Respondent did engage in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. It having been found that Respondent unlawfully withheld S and A benefit payments to the discriminatees named in the complaint, it must be ordered , in remedy, to pay them what money was due them, with interest . The period for which such reimbursement must be made is from January 8 to April 12, 1980. Mary Kasperek died and Harry Wickhorst was certified medically able to work during the period of the strike. They will be paid what S and A benefits were due to them to the day of their death or recovery. On the basis of these findings of fact and on the entire record in this case, I make the following CONCLUSION OF LAW By withholding from January 8 to April 12, 1980, pay- ment of S and A benefits to the employees named in the complaint, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]