Texaco, Inc

TEXACO INC 325 Texaco, Inc and Forrest E Eddy and Daniel W Holliday and Ida Pearl Williams Cases 16- CA-9187 16-CA-9236 and 16-CA-9236-3 September 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 15 1981 Administrative Law Judge Jesse Kleiman issued the attached decision in this proceeding The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge s rulings findings and conclusions and to adopt the recommended Order only to the extent consistent with this decision On January 7 1980 1 1 day before unit employ ees struck the Respondent called disabled employ ee Forrest Eddy and told him he was to report to work on January 8 because his doctor had released him for light duty work on the gate He was told to report or he would be disciplined Eddy then called the plant nurse and was told that the Re spondent was calling employees back to work due to the strike, and that he had been released to sit at the gate and punch buttons Eddy called the refin ery on January 8 and reported he was still phys ically unable to work Eddy s accident and sickness (A & S) benefits were terminated as of January 7 On January 8 after failure to reach an agreement pursuant to the contract reopener clause the Union struck During the last negotiating session on Janu ary 8, and despite the Unions protest the Re spondent informed the Union that it would suspend A & S benefits for disabled employees for the dura tion of the strike Thirteen employees A & S bene fits were suspended on commencement of the strike 2 The disabled employees were denied pen sion credits for the strike s duration The parties entered into a memorandum of agreement settling the strike on March 30 The agreement provided increases in wages health in surance benefits and vacation benefits In consider ation of the Union s agreement to withdraw all charges and grievances relating to the Company s administration of the employee benefit plans the Respondent agreed to pay employees a $150 lump sum payment for health insurance premiums for All dates are 1980 unless otherwise noted 2 Forrest Eddy s benefits were suspended on January 7 rather than January 8 February and to make employees whole for health insurance premiums for January and March The agreement also provided that employees who were disabled before the strike began and receiving A & S benefits before the strike would resume receipt of such benefits if satisfactory evidence of continuing disability was established The A & S payments were resumed for those employees still disabled when the strike ended March 30 3 The parties also signed a separate Strike Settlement Agreement which provided that each party will dismiss any and all litigation now pending against the other (including arbitrations unfair labor practice charges law suits and grievances related to any of the benefit plans) and that it is agreed that no new litigation growing out of or related to the strike will be filed The charges that led to the instant complaint were filed by the individual Charging Parties on various dates in June and July The judge found the Respondent violated the Act by terminating disabled employees A & S ben efits and denying them pension credits during the strike In its exceptions the Respondent argues that the complaint should be dismissed based on the parties memorandum of agreement and strike set tlement agreement For the reasons set forth below we agree with the Respondent 4 In Energy Cooperative 290 NLRB 635 (1988) the Board held that waivers of contractual benefits contained in strike settlements may result in dismis sal of charges filed by individual employees be 3 The text of the relevant memorandum of agreement provisions is as follows LUMP SUM PAYMENT In consideration of the Union s agreement to withdraw all contrac tual grievances and NLRB charges and court proceedings arising out of the Company s administration of employee benefit plans during the strike and the Union s agreement not to institute further actions arising out of said circumstances Company agrees to provide the following A Employees who did not receive Company contributions to HSM for the month of February will receive a payment of $15000 B In addition the Company will make employees whole with respect to its contributions toward Medical Coverage for the months of January and March 1980 ACCIDENT AND SICK BENEFITS It is understood that employees who are unable to report for work due to sickness or accident which commenced after the strike began will be eligible for A & S benefits beginning with termination of the strike In addition for employees who were disabled before the strike began and receiving A & S benefits such benefits shall be re sumed at the time the strike is officially discontinued if satisfactory evidence of continuing disability is established 4 In Texaco Inc 290 NLRB 1181 (1988) we found that agreements identical to those in the present case executed at the Respondents facile ties in Houston and Port Arthur Texas clearly and unmistakably waived disabled employees right to receive contractual A & S benefits free from discrimination or coercion We rejected however the Respondents de fense that under its collective bargaining agreement it was privileged to deny accrued A & S benefits The Respondent asserts the same contrac tual defense in the present case For the reasons given in Texaco Inc id at 1181-1182 we reject this identical defense 291 NLRB No 48 326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cause a collective bargaining representative may waive its individual members statutory right to re ceive contractual benefits free from discrimination or coercion See the discussion of Metropolitan Edison Co v NLRB 460 U S 693 (1983) and Ford Motor Co v Huffman 345 U S 330 (1953) in Energy Cooperative supra at 636 Energy Cooperative emphasized that such a waiver is effective only if it is clear and unmistakable In the present case it is clear the parties intend ed a comprehensive settlement of all issues in dis pute between them at the date of the settlement at least regarding the Respondents administration of its contractual employee benefit plans, which, of course included the A & S benefit plan Their memorandum of agreement was in full and com plete settlement of all issues negotiated It was ex pressly in return for the Union s relinquishment of all existing or future claims related to employee benefits during the strike that the Respondent pro vided a limited reimbursement to employees (in cluding those who were sick or disabled during the strike) for certain insurance contributions under the article of the agreement entitled Lump Sum Pay ment Thus this provision clearly resolves any claims with respect to employee benefits for the period of the strike In the memorandum of agreements next article entitled Accident and Sick Benefits the parties provided that disability entitlements would resume on the day after the strike ended With this provi lion they resolved any differences they might have had concerning the employees entitlement to dis ability pay during the strike The parties agree ment that benefits would resume after the strike ended clearly reflects the assumption that these benefits were not payable during the strike The A & S provision must be read in conjunction with the provision providing for the lump sum payment that precedes it and with the memorandum as a whole Thus the A & S provision makes sense only as part of the complete resolution of all matters re garding contractual employee benefits affected by the strike Further this understanding is reinforced by the language of the additional Strike Settle ment Agreement forswearing any and all litiga tion including [that] related to any of the ben efit plans as well as new litigation growing out of or related to the strike Not only do the memorandum of agreement and the strike settlement agreement waive employees rights to A & S benefits they also clearly waive these same employees claim to pension credits during the strike To repeat the parties intended that their agreements settle all issues in dispute be tween them at the date of the settlement at least as to the Respondent s administration of employee benefit plans during the strike which includes the pension credits in question In sum we find that the parties settlement agreements constitute a clear and unmistakable waiver of any contractual entitlement to disability pay or pension credits during the strike 5 Finally for the reasons set forth in Energy Coop erative we shall give effect to the strike settlement agreements which clearly and unmistakably waived individual employees statutory right to re ceive contractual benefits free from discrimination It effectuates the purposes and policies of the Act to give effect to a private settlement amicably re solving a labor dispute where the union was enti tled to waive individual rights in securing the good of the entire unit and was empowered to bind unit members wholly apart from their separate consent Accordingly we shall dismiss the complaint 6 ORDER The complaint is dismissed Member Cracraft would not rely on either the zipper clause con tamed in the memorandum of agreement or the provision providing for resumption of benefits at the end of the strike as evidence of the parties intent that individuals rights to A & S benefits were waived Rather in agreeing with her colleagues that the Union waived the employees con tractually provided A & S and pension benefits during the term of the strike Member Cracraft relies on the language of the lump sum payment section of the memorandum of agreement in which the parties agreed on a specific lump sum payment in consideration for the Union s relinquish ment of all claims ansing from the Respondents administration of em ployee benefit plans during the strike to find such a waiver 9 Chairman Stephens notes that none of the factors discussed in his concurring opinion in Energy Cooperative as possible barriers to the Board s reliance on a settlement are present in this case Edward B Valverde Esq for the General Counsel Randall N Finley Esq of Houston Texas for the Re spondent DECISION STATEMENT OF THE CASE JESSE KLEIMAN Administrative Law Judge On charges filed in Cases 16-CA-9187 16-CA-9236 and 16-CA-9236-3 by Forrest E Eddy Donald W Holli day and Ida Pearl Williams respectively 1 the General Counsel of the National Labor Relations Board by the Regional Director for Region 16 Fort Worth Texas issued an order consolidating these cases a consolidated complaint and notice of hearing on August 21 1980 against Texaco Inc (Respondent) alleging that the Re spondent engaged in certain unfair labor practices within the meaning of Section 8(a)(3) and (1) of the National Labor Relations Act (the Act) On September 4 1980 i Forrest E Eddy filed his original charge on June 9 1980 and an amended charge on August 19 1980 Daniel W Holliday filed his charge on July 7 1980 and Ida Pearl Williams filed her charge on July 8 1980 TEXACO INC the Respondent by counsel duly filed its answer to the consolidated complaint denying the material allegations 2 A hearing in the consolidated cases was duly held before me in Tulsa Oklahoma on January 29 and 30 1981 All parties were afforded full opportunity to appear to introduce evidence to examine and cross ex amine witnesses to argue orally on the record and to file briefs At the close of the General Counsels case the Respondent moved to dismiss the complaint for failure of proof regarding Forrest E Eddy I denied the motion Briefs were filed by counsel for the General Counsel and the Respondent In its brief the Respondent moved to dismiss the consolidated complaint in its entirety For the reasons appearing here I deny this motion On the entire record and the briefs of the parties and on my observation of the witnesses I make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent at all times material has been a cor poration organized under and existing by virtue of the laws of the State of Delaware licensed to do business in the State of Oklahoma with an office and place of busi ness in Tulsa Oklahoma where it is engaged in the re fining and marketing of petroleum and natural gas In the course and conduct of the Respondents business oper ations during the preceding 12 months these operations being representative of its operations at all times maten al the Respondent had gross sales in excess of $500 000 and during the same period of time sold and shipped to customers in various States of the United States products valued in excess of $50 000 The consolidated complaint alleges the Respondent admits and I find that the Re spondent is now and has been at all times material an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The consolidated complaint alleges the Respondent admits and I find that the Oil Chemical & Atomic Workers International Union Local 5-217 here referred to as Local 5-217 or the Union is now and has been at all times material a labor organization within the mean ing of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES The consolidated complaint alleges that the Respond ent violated Section 8(a)(3) and (1) of the Act by discon tinuing disability payments to and reducing vacation and 2 In its answer the Respondent alternately raised as a defense in sub stance that on March 30 1980 the Respondent and the Oil Chemical and Atomic Workers International Union Local 5-217 entered into a Strike Settlement and Memorandum of Agreement whereby it was agreed that this union would withdraw the unfair labor practice charges relating to the Respondents failure to pay the A&S Plan Benefits to em ployees within the bargaining unit and the Respondent would under take various considerations including but not limited to the payment to each employee in the bargaining unit of $150 to reimburse them for the cost of certain benefit plans for which Texaco did not make contributions during said strike and therefore the Respondent was discharged from any obligation to pay A&S Plan Benefits (accident and sick benefits) to these employees covering the period of the strike 327 retirement benefits of employees Forrest E Eddy Daniel W Holliday and Ida Pearl Williams members of the 0 C A W and other employees similarly situated whose identity is presently unknown at the Tulsa loca tion who were on disability leave during the period of a strike against the Respondent from January 8 through March 30 1980 all because they joined or assisted the Union or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection The Respondent denies these allegations as serting that it discontinued such payments when the Union went on strike on the premise that it was not re quired by law or otherwise to finance a strike against itself A Background The Respondent and Local 5-217 have had a bargain ing relationship since 1937 with the most recent collec tive bargaining agreement being in effect from January 8 1979 until January 7 1981 3 The bargaining unit repre sented by Local 5-217 relevant to these proceedings con sists of the operating and maintenance employees at the Respondents Tulsa Oklahoma refinery who are paid on an hourly basis 4 By letter dated November 1 1979 Local 5-217 served notice reopening [the collective bargaining agreement] and requesting negotiations pur suant to a Memorandum of Agreement entitled Re opener on Wages Health Care and Vacation Schedules dated January 24 1979 entered into between the Re spondent and Local 5-217 on the same day and in con junction with the bargaining contract 5 Local 5-217 sought to negotiate thereunder a substantial wage in crease fully paid up hospital and health insurance bene fits and additional vacation time but no agreement could be reached between the parties during the various bargaining sessions held through December 28 1979 6 B The Evidence The Meeting of January 7 1980 On January 7 1980 representatives of the Respond ent7 and Local 5-217 including employee members of the Union s bargaining committee8 met at the Union s re S See it Exh I (Collective Bargaining Agreement dated January 24 1979) 4 The bargaining unit comprises some 300 employees Local 5-217 also represents in a separate unit and under a different contract the Re spondent s clerical employees at the Tulsa, Oklahoma plant but this unit is not involved in these proceedings 6 See it Exh 2 pp 1 5 (Memorandum of Agreement dated March 30 1980) 6 See R Exh 9 (minutes of the meeting of December 28 1979) r John L Brown Jr Supervisor Employee Relations of Texaco s West Tulsa Refinery and William W Gastinger Assistant Supervisor Employee Relations The complaint alleges the Respondent admits and I find that John L Brown Jr is a supervisor within the meaning of Sec tion 2(11) of the Act and has been and is now an agent of the Respondent acting on its behalf 8 Nolen E Stinson chairman Jim R Coody Danny Dawson John Denham and Jonathan Lonsdale Also present at the negotiations was Bill McGough representing the Oil Chemical and Atomic Workers Interns tional Union (International Union) from which Local 5-217 holds its charter as a local union 328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD quest to continue collective bargaining negotiations Since it appeared unlikely that agreement would be reached on the relevant items being negotiated Local 5- 217 informed the Respondent that its International Union s president Goff had authonzed Local 5-217 to engage in strike action commencing at the end of the regular maintenance day shift which is 4 30 p in on Jan uary 8 1980 9 The Respondent then advised Local 5- 217 that should a strike take place it would consider all provisions of the collective bargaining agreement imme diately suspended at whatever point in time a picket line is established 10 The Meetings Held on January 8 1980 At approximately 10 15 am on January 8 1980 the parties met at the request of the Respondent to arrange the orderly shutdown of a part of the refineries oper ation the Alky should there be a strike and Local 5- 217 agreed later that day to provide the necessary em ployees to accomplish this starting at the time the picket line is established 11 The Respondent and the Union met again later that afternoon at 3 30 p in on January 8 1980 at the Union s request to continue the current reopener contract nego tiations The Respondents offer being rejected as mad equate the Union informed the Respondent that at 4 30 p in that day it would establish a picket line at the em ployee gate on West 25th Street and will at about the 9 Bill McGough the International Union s representative initially tests fled that at a previous meeting held on the Friday (January 4 1980) before the January 7 1980 meeting he had notified the Respondents rep resentatives that Local 5-217 would call a strike on January 8 1980 unless a bargaining agreement was signed beforehand However when presented with a copy of the minutes of the negotiation meeting held just prior to the January 7 1980 meeting which disclosed that such prior meeting actually took place on December 28 1980 and contained no record of such notice having been given McGough acknowledged that he may have been mistaken regarding this Nevertheless McGough in sisted that while formal notice of the strike date of January 8 1980 was first given to the Respondents representatives at the January 7 1980 meeting either he or Nolen Stinson had at prior meetings advised them in substance that the deadline as you know is midnight January the 7th and unless there is some movement in the negotiations the Union would call the employees out on strike and picket the plant on January 8 1980 Brown the Respondent s chief negotiator at these bargaining sessions testified that the first Respondent knew of the actual strike date of Janu ary 8 1980 was when McGough informed him of the date at the meeting on January 7 1980 He stated that until that afternoon at approximately 4 or 4 30 I was quite certain there wouldn t be a strike However he also testified that during the period of the bargaining negotiations both the employer as well as the union prepare for the advent of a strike if negotiations are unsuccessful Be that as it may the evidence shows that before January 7 1980 the Respondent was well aware that Local 5-217 was legally eligible to strike on January 8 1980 as admitted by Brown in his testimony and of the possibility that Local 5-217 might engage in a strike on that date if agreement on the issues being then negotiated was not effectuated i e discussions between the parties on January 5 1980 concerning the or derly shutdown of part of the Tulsa Oklahoma plant s operations after picketing commenced Also see McGough s testimony Additionally the Respondent had experienced two previous strikes at the Tulsa Oklahoma plant although Brown testified uncontradictedly that this was the first time that Local 5-217 had called a strike immediately upon the expira tion of the contract in the 17 years that I have been a negotiator for Texaco ° See R Exh 8 (minutes of the meeting of January 7 1980) ' 1 See R Exh 8 (minutes of the meetings held on January 8 1980) same time place pickets on the contractor gate on South west Boulevard for information purposes only The Re spondent at this point furnished the Union with copies of guidelines describing the administration of employee benefits in the case of a strike 12 which was reviewed by the parties The Union then reemphasized its position taken at prior meetings as well that the collective bar gaining agreement then in effect would remain so during the entire period of the strike thus obligating the Re spondent to continue to pay the costs of benefits in behalf of striking Texaco employees during the strike The Respondent then reiterated its position that should there be a strike the Respondent would consider the bar gaining contract to be immediately suspended at the time the picket line was established 13 The Strike At approximately 4 30 p in on January 8 1980 Local 5-217 commenced a strike against the Respondent at the Tulsa Oklahoma refinery and picketed this facility until March 30 1980 at which time the parties settled the strike by agreement executed that day 14 As set forth before the Respondent had advised Local 5-217 during the negotiations preceding the strike that any accident and sick benefits referred to as A&S benefits 15 being 12 See It Exh 3 (Employee benefits-Procedures in Case of a Strike) The guidelines makes reference to all employee benefit plans including wages insurance and vacation and with particular pertinence to the issues stated as follows Accident and Sick (A&S) Benefit Plan Upon commencement of a strike all A&S Benefits will be discon tinued except in those cases involving industrial accident or injury A&S benefits will be continued to those employees who are disabled due to industrial injury until medically released by their doctors or until expiration of such benefits in accordance with the Plan s benefit schedule whichever occurs first Decision will be reserved regarding the payment of A&S benefits upon termination of the strike for employees who become disabled during the strike and whose disability continues beyond the terming tion of the strike Decision will also be reserved regarding the resumption of A&S benefits which were discontinued at the beginning of the strike for those employees who are still disabled after the termination of the strike Under no circumstances will A&S benefits be payable if they would not have been payable in the absence of a strike Pension The Group Pension Plan provides that an employee will be cred ited with one month of Benefit Service for any calendar month that the employee is not absent from work with less than full pay for 15 days or more Furthermore the Plan provides that the employees pension contributions if any will be suspended during any calendar month that the employee does not earn Benefit Service Therefore if an employee is on strike for 15 days or more during any calendar month (a) The Employee will not be credited with any Benefit Service for that month and (b) The employees pension contributions if any will not be col lected that month they will be suspended " See In I 1 supra 14 See Jt Exh 2 (Memorandum of Agreement and Strike Settlement Agreement both dated March 30 1980) See Jt Exh 5 (Accident and Sick Benefit Plan) Art VIII of the collective bargaining agreement between the Respondent and Local 5- 217 incorporates the Respondents A&S Benefit Plan among others i e Group Pension Plan etc into that agreement as a part In substance the A&S Benefit Plan provides that an employee with 1 years active and Continued TEXACO INC paid to bargaining unit employees would be terminated with the commencement of a strike and it therefore stopped such payments to its employees represented by the Union who were on accident and sick leave at the time the strike began on January 8 1980 as will be more particularly set forth 16 Furthermore after the strike Texaco applied its pension policy towards all bargaining unit employees represented by Local 5-217 without con sidering whether the employees were on accident and sick leave during the strike John L Brown Jr testified that when the strike began on January 8 1980 the Respondent had no knowledge of whether bargaining unit employees who were on leave due to accident or sickness at the time were going to support the strike by picketing or otherwise He stated that none of the employees whose A&S benefits were terminated during the strike had come forward to dis avow the strike nor did Local 5-217 inform the Re spondent that any of these employees were not support ing it or had refused involvement or participation with it According to Brown the Respondent continued the op eration of its Tulsa Oklahoma refinery during the period of the strike using supervisory and technical personnel to perform the necessary work and any of the bargaining unit employees who desired to cross the picket line to return to their jobs in the refinery could have done so but that none of these employees reported for work during the period of the strike 17 That all the bargaining unit employees honored the picket lines during the strike and failed to return to their jobs until the strike was over is clear from the record 18 continuous employment service or more is entitled to A&S payments when he is sick or injured and would otherwise be working These pay ments range from 4 weeks to 13 weeks of benefits equivalent to Full Pay and from 2 weeks to 30 weeks of benefits equivalent to Half Pay based on length of completed years of service Other provisions for occu pational injury are contained therein Employees who become ill or have accidents while not at work are also eligible for A&S benefits unless they were on personal business military leave or absence layoff status or on vacation All such benefits under the plan are paid from the general assets of the Respondent The plan also provides that No benefits will be paid hourly employees for the first scheduled working day of any period of absence and that under certain circumstances the Company may require a medical certificate before benefits are paid The Respond ent additionally has the option to have its own designated physician in vestigate the circumstances of any employee s illness or injury to deter mine whether the employee is taking appropriate steps to expedite his or her recovery IB Brown testified that Texaco has always taken the position that to pay such benefits would be financing a strike against its own operations He stated that the Respondent considered all the bargaining unit employ ees whose A&S benefits it had terminated during the strike to be actual strikers or strike supporters i r However several of the employees on accident and sick leave at the time of the strike testified that they felt that the Respondent would not allow them to return to work during the period of the strike even if they had wanted to do so i e Forrest E Eddy Lawrence R Eubanks and Donald H Hof Jr i8 See Brown s testimony and that of Bobby R Dugger Lawrence R Eubanks Ida Pearl Williams and Leonard Hardison among others who testified Moreover during two previous strikes by Local 5-217 at the Respondent s Tulsa Oklahoma refinery one in and one before 1979 the same was also true with no bargaining unit employee crossing the picket line to work in the refinery during the course of those strikes 329 How Unit Employees on Accident or Sick Leave Fared During the Strike The evidence shows that 19 employees were on acci dent and sick leave receiving A&S benefits on January 7 1980 including Charging Parties Forrest E Eddy and Daniel W Holliday 19 Ida Pearl Williams the other Charging Party began her eligibility for A&S benefits on January 8 1980 on the basis of maternity leave 20 Of these 20 employees the Respondent continued to pay A&S benefits during the strike to five of them who were on accident or sick leave because of on the job acci dents (industrial injuries) for the length of their disability or until the expiration of their respective benefits in ac cordance with the Respondents accident and sick benefit plan 21 Another two of these employees who were ter minally ill when the strike started on January 8 1980 continued to receive A&S benefits during the strike period because they were not expected to survive their illnesses and return to work 22 Of the remaining 13 employees the evidence clearly shows and the Respondent admits that it discontinued A&S benefit payments to 12 of them on January 8 1980 the day the strike began and continued to withhold such payments through March 30 1980 when the strike ended at which time the Respondent resumed A&S ben efit payments to those employees who were eligible to receive them by virtue of their continuing accident or sickness disability These 12 employees are Bobby R Dugger Larry S Eckelstafer Darel R Elmore Law rence Eubanks Don A Farris Leonard M Hardison Donald H Hof Jr Daniel W Holliday Oran L Kelly Eston M Newton Bobby R Phipps and Ida Pearl Wil liams 23 Concerning the other employee Forrest E Eddy his A&S benefits were terminated on January 7 1980 Brown testified that none of these employees pro 19 See Jt Exh 8 (List of West Tulsa Plant Employees Represented by OCAW Local 5-217 on Sick Leave and Receiving Sick Leave Pay on 1/7/80) ° As indicated the complaint alleges that the Respondents unlawful conduct affected not only the three employees who filed charges and are named in the caption but also the other employees similarly situated whose identity is presently unknown at the Tulsa location who were on disability leave during the period Counsel for the General Counsel in his brief asserts that It was not until commencement of the hearing that Texaco furnished a list of all employee members of Local 5-217 who were on A&S leave prior to the strike and had received A&S benefit payments prior to the January 8 strike 21 Douglas L Asbill (3-30-80) Guy L Fryhover (4-1-80) James A Marino (4-30-80) Jimmy B Wheat (5-12-80) Alex Graham (2-23-80) Brown testified Alex Graham did call in and subsequently sent a release in He was industrial injured there on the date that it shows him being off first A&S pay stopped on February 23 1980 as a result of his calling in and telling us that he was released to come to work See Jt Exh 8 supra 22 Jimmy L Lary (deceased 2-16-80) and John M Shaddox (deceased 8-30-80) Brown testified that Shaddox fortunately outlived his doctor s predictions however he is currently in the hospital expected to die now but we did as a matter of generosity extend to him full A&S benefits 23 Brown testified that several employees whose A&S benefits were terminated at the inception of the strike later received all the benefits to which they would have been entitled during the strike by virtue of their having taken early retirement based on permanent total disability These employees included Oran L Kelly Daniel W Holliday and Eston M Newton See Jt Exh 8 supra 330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tested the termination of their A&S benefits to the Re spondent24 With the exception of Forrest E Eddy whose testi mony of necessity must be considered separately because of the particular circumstances surrounding the Respond ent s discontinuance of A&S benefits to him on January 7 1980 the day before the strike started the other bar gaining unit employees who were out on accident or sick leave and receiving A&S benefit payments on that day and who were called as witnesses testified substantially similarly 25 They each testified regarding the dates they went on accident or sick leave the nature of their dis abilities and the dates they were medically released by their doctors to return to work 26 Additionally from their testimony and that of the other witnesses it is clear that no employee in the bargaining unit who was on ac cident or sick leave at the time of the strike crossed a picket line to return to work until the strike ended even though some of these employees had recovered from their disabilities within the period of the strike 27 24 While Eubanks testified that he called the Respondent about the dis continuance of his A&S benefit payments during the strike he expressly stated that it was not a protest but informational Brown s testimony was not contradicted by the employees on disability at the time of the strike who testified 25 Lawrence R Eubanks Larry S Eckelstafer Bobby R Dugger Don A Farns Donald H Hof Jr Bobby Ray Phipps and Leonard Har dison The testimony of Ida Pearl Williams whose eligibility for A&S benefit payments due to pregnancy (maternity leave) commenced on Jan uary 8 1980 since the Respondents accident and sick benefit plan ex cludes payment for the first day of an employees disability was also similar to that given by these other witnesses 26 Eubanks went on sick leave due to pneumonia on November 5 1979 and was medically released to return to work on February 4 1980 Eckelstafer commenced his sick leave for an undisclosed illness on Janu ary 3 1980 and was medically released for return to work on January 9 1980 Dugger went on sick leave for a bone spur in his right heel on Jan uary 2 1980 and was medically released for return to work on January 13 1980 Farns went on sick leave because of bronchitis on January 6 1980 and received his medical release for return to work on January 17 1980 Hof began his sick leave for an upper respiratory infection on January 3 1980 and although medically released for return to work could not recall the date Phipps commenced his sick leave due to a wrist operation on December 11 1979 and was medically released for return to work after January 14 1980 Hardison went on sick leave because of the flu on January 2 1980 and was medically released to return to work on or about January 14 1980 Ida Pearl Williams went on sick leave effective January 7 1980 because of her pregnancy and was medi cally released to return to work sometime after the strike ended on March 30 1980 (See the testimony of the above witnesses Jt Exh 8 and R Exhs 5 (Eckelstafer) and 6 (Phipps) ) The evidence also shows that Darel R Elmore went on accident or sick leave on October 22 1979 and his disability terminated September 30 1980 Daniel W Holliday went on accident or sick leave on Novem her 11 1979 and his disability ended on February 1 1981 when he re tired on permanent total disability Oran L Kelly went on disability on July 6 1979 and took Early Retirement with [Permanent Total Disabil ity] at an undisclosed date Eston M Newton went on disability on Oc tober 4 1979 and his disability terminated on November 30 1980 when he took early retirement with permanent total disability (See Jt Exh 8 ) 27 The uncontroverted evidence also shows that all bargaining unit em ployees remained away from their jobs honoring the picket lines and that this was also true of the two previous strikes held by Local 5-217 at the Respondents refinery one before and one in 1969 The Respondent replaced into evidence a section of the International Union s constitution and bylaws which provides that members including its local s member ship who engage in acts which tend to hinder the prosecution of a prop erly recognized and authorized strike conducted by [OCAW] are sub ject to fine suspension or expulsion (See R Exh 7 ) According to the testimony of these employees the Respondent never contacted them to return to work during the period of the strike although they each ad mitted that had the Respondent done so they still would have honored the picket line and refused to return to their jobs until the strike was over In fact the evidence shows that many of the employees out on accident and sick leave at the time the strike began on January 8 1980 and who recovered sufficiently from their disability or were medically released by their doctors to return to work while the strike was still in progress joined the strikers on the picket line at the refinery or preformed other duties for Local 5-217 in support of the strike in stead of returning to their jobs 28 Most of these employ ees returned to work on March 31 1980 after the strike was settled on March 30 1980 while those employees whose disabilities continued past this date returned to work thereafter29 or retired on permanent total disabil ity 30 Additionally several of these employees testified that they were unaware of the commencement of the strike on January 8 1980 because they were out on accident or sick leave prior to this date and therefore away from the refinery and subsequently only learned about the strike from fellow employees 31 from the news media 32 or I presume from Local 5-217 when they were contact ed by the Union for picket line duty 28 It was stipulated by the parties that the following employees en gaged in picketing on the following dates in January and February 1980 and either picketed or obtained a substitute picket for themselves during March 1980 Eubanks-January 16 February 4 22 28 March 7 13 19 26 1980 He also answered telephones at the union hall commencing after February 5 1980 Eckelstafer-January 9 16 and 28 February 9 1980 Dugger-January 9 16 and 22 February 10 16 22 and 28 March 6 13 19 and 26 1980 Elmore-January 28 February 10 16 22 and 29 March 6 and 19 1980 Hardison-January 17 23 and 29 February 10 16 and 23 March 1 13 20 and 26 1980 Hof-January 10 17 23 and 29 February 4 11 17 23 and 29 March 7 14 20 and 26 1980 Phipps-January 12 19 and 31 February 12 18 and 25 March 16 1980 It was also stipulated that Oran L Kelly Eston M Newton and Forrest Eddy were not scheduled to picket at all by Local 5-217 It should be noted that regarding these employees there is no evidence in the record that Kelly and Newton engaged in picketing activities during the strike and Eddy denied having done so or in any other manner assisting the Union Ida Pearl Williams testified that she did not engage in any picketing activities during the s rike She stated that she attended two union meet ings during the strike one at which Local 5-217 apprised its membership about food stamps this being the reason for her attendance the other on March 30 1980 when she went to a meeting with her husband who is also employed by the Respondent and at which the striking employees voted to return to work Williams continued that she also accompanied her husband on his visits to the union hall because he preferred not to leave her alone at home in view of her pregnancy She added that she performed no work for Local 5-217 at the union hall during the strike Williams additionally related that she visited the picket line during the strike to show the other employees her new born infant 2s Darel R Elmore and Ida Pearl Williams 90 Oran L Kelly and Eston M Newton 31 See the testimony of Larry S Eckelstafer 32 See the testimony of Bobby R Dugger TEXACO INC Concerning Forrest E Eddy Forrest E Eddy employed by the Respondent since 1969 and currently in the position of a Steelman at the vacuum pipe still 33 testified that due to a prior injury to his left knee sustained on the job he was compelled to go on sick leave on November 23 1979 after his knee collapsed underneath [him] five times He stated that after visiting an orthopedic specialist Dr George Mauerman he was advised sometime in December 1979 that surgery would be required to cure his injury He continued that he informed the Respondent through its plant nurse Cathleen Bates about what had occurred whereupon he was instructed by the Respondent to see another physician Dr Bruce Stivers who is their spe cialists [sic] Eddy stated that he was examined by Dr Stivers on December 17 1979 and although Stivers was in agreement with Mauerman for surgery offered an alternative through exercise and medication According to Eddy Dr Stivers advised him to remain away from his job until January 2 1980 his next scheduled medical examination date and Eddy also reported this to nurse Bates Eddy added that after Stivers examined him on January 2 1980 he was told to go home for an addi tional two weeks and come back to see him the 16th [January 16 1980] And continue the medication and treatment 34 Eddy testified that at approximately 1 p in on January 7 1980 he received a telephone call from Ron Pardue Employee Relations 35 who told him they had gotten a release from my doctor and that I was to report the fol lowing day on the main gate from 7 30 to 4 30 Eddy stated that he told Pardue that he was unable to report to work because my knee had gone out on me for the seventh time on the Sunday before that January the 6th He related that Pardue told him he would have to speak to someone else and put Brown on the phone Eddy continued I started to tell him that I was unable to come to work because of my knee but before I could finish he told me that they had gotten a release for me to come to work that I had better be there or else and hung up the phone 36 He added that Brown never mentioned when I was sup posed to come at all except that I had better come or else but he did not specify a time As noted before Eddy had testified that Pardue told him to report for work on January 8 1980 33 It appears from the evidence that Eddy is the only employee in the bargaining unit who may not be a member of Local 5-217 34 Dr Stivers report states 12 80- The patient is slowly improving but he still has tenderness both medically and laterally The lateral side is more symptomatic than the medical [sic] side I feel that he is still too symptomatic to return to work and he will continue conservative care for an additional two weeks [Emphasis added ] See G C Exh 2(c) 35 Pardue is employed by the Respondent as a Coordinator Employ ee Relations and works under Brown who heads the Respondents employee relations department 36 Eddy testified that he telephoned Brown right back and told Brown that he had something to tell him I wanted to show him just how that felt and I hung the phone up on him 331 Eddy continued that he then called the plant nurse Bates who told him that the Respondent was calling back all the people that they could call back because of the strike I was flabergasted be cause a strike was the last thing on my mind This warn t a contract expiration year I was at home trying to medically take care of myself She told me that they had gotten a release for me to sit on the gate and punch a button and that was the extent of it She didn t know what doctor it was either 37 He stated that he made various attempts to contact Dr Stivers that afternoon but was unsuccessful 38 Eddy testified that the following morning January 8 1980 he called the refinery and told Pardue that he was unable physically to come to work He related that Pardue told him that this would be reported to the Re spondent Eddy added that he called Dr Stivers office again and was advised that the only way I could talk to the doctor would be to make an appointment and be cause he already had an appointment with Stivers for January 16 1980 he arranged to see Stivers sooner on January 14 1980 39 Eddy related that during the period between January 2 1980 when he was examined by Dr Stivers and Janu ary 7 1980 when he was informed that Stivers had medically released him to return to work for light duty he had not informed Stivers about any change in the condition of his knee He could give no reason for Stiv ers action in medically releasing him to return to work Eddy acknowledged that had he been informed that there was an emergencey situation at the refinery he would have come to work despite his physical incapacity but that neither Pardue nor Brown said that any emer gency condition prevailed Eddy testified that he was receiving A&S benefits prior to January 7 1980 but these payments were dis continued thereafter until March 31 1980 following day after the strike ended whereupon his A&S benefits were reinstated until he returned to work on April 20 or 23 1980 He related a conversation between himself William Gastinger and Cunningham the plant manager which transspired in July 1980 Eddy stated that he had gone to see Gastinger about the company taking care of all the bills from all my injuries that the bill collectors had been hounding me to death over According to Eddy Gas tinger told him in this conversation that the Respondent s company doctor Dr Dunlap had telephoned Dr 37 Eddy testified that he had worked at this gate before and the duties of the gateman required more than merely sitting down and punching a button 38 Eddy testified that he made numerous telephone calls to Stiver s office and to Medical the doctor s answering service leaving his home phone number for Stivers to return his call According to Eddy Dr Stivers never returned any of his calls 3e Eddy never kept this appointment for the reason that I got to feel ing like my doctor patient relationship had been severed because this man had released me without examining me had not talked to me Eddy re turned to Dr Mauerman s care on January 18 1980 332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Stivers and obtained a medical release for Eddy to return to work 40 Eddy continued that the Respondent did not contact him again to return to his job after the strike commenced on the afternoon of January 8 1980 nor did he seek to return to work during the strike period because he be lieved that the refinery gates were closed to all bargain ing unit employees 41 As indicated by his testimony Eddy felt his knee disability was still sufficiently debili tating to require his remaining away from his job and he remained under Dr Mauerman s care until April 20 or 23 1980 when he returned to work Eddy stated that he never visited the strike picket lines never engaged in picketing himself and never made or answered telephone calls on behalf of Local 5-217 at any time during the strike Concerning the above incident Brown testified that Ron Pardue a Coordinator in the Respondents em ployee relations department experienced a shortage on January 7 1980 of employees to work at one of the re finery gates it being his responsibility at the time to see that the gate was adequately manned He stated that in accordance with common practice Pardue instructed the Respondents plant nurse Bates to review the current daily employee absentee report a copy of which is sent to her early each morning to find an employee on acct dent or sick leave who could be medically released by his doctor for light duty work at the gate Brown contin ued that Bates contacted Texaco s doctor Harold Dunlap who after conferring with Dr Bruce Stivers who was Mr Eddy s treating doctor informed her that Stivers had agreed that Eddy s physical limitations were not so severe that they would keep him from work ing on a sit down job at the gate which information Bates conveyed to Pardue 42 He added that Dr Dun lap s recommendation that an employee on sick leave is physically able to return to work made on the basis of Dunlap s own examination or in consultation with the employees physician is considered by the Respondent to be as formal as any other release we receive 43 Brown in initially testifying as a witness for the Gen eral Counsel stated that either he or Pardue now tele 40 The evidence shows that the alleged medical release regarding Eddy s ability to return to work was orally obtained from Dr Stivers by the Respondents company physician Dr Dunlap and no followup in writing was acquired 41 From his testimony the inference that Eddy would not have crossed the picket line even if his physical condition allowed him to do so is rea sonably and clearly raised 42 According to the testimony the inner gate at the refinery is occa sionally manned by disabled employees who are not medically cleared to work elsewhere at the Texaco refinery because of the light duty re quirement of this job Brown related that Ida Pearl Williams had been working on the gate until January 4 1980 due date of her pregnancy but then had gone on maternity leave commencing on January 7 1980 and that while another employee was assigned to and working at this gate that very morning Eddy was asked to report to work immediately because Pardue had informed Brown that others were either absent or were going to be absent the next week We wanted to get Mr Eddy out and familiarize him again with the gate on January 7th at the time I called him 43 Brown also testified that Dr Dunlap was quite familiar with gate duty phoned Eddy44 about noontime on January 7 1980 and instructed him to report to work immediately that afternoon However in his subsequent testimony given as a witness for the Respondent he acknowledged that Pardue had telephoned Eddy I didn t even know that he had until he told me that he was on the phone Brown related that Pardue told him that Eddy had re fused to come to work after having been told that he had been medically cleared He continued that he re quested Pardue to tell Eddy that we have good medical knowledge that he is not going to be hurt that we are not bringing him back to anything that is all that strenu ous Brown testified that after Pardue advised him that this is a rather stormy conversation he decided to talk to Eddy himself and picked up the telephone receiver He added that this occurred at approximately 12 30 on January 7 1980 and that he was unaware at the time that a strike was to be called on January 8 1980 45 Brown gave only a brief account of the contents of his actual conversation with Eddy He testified that after re ceiving medical verfication [sic] from Dr Dunlap about Eddy s ability to return to work I called Mr Eddy and instructed him to report immediately on Janu ary 7 1980 46 Brown continued that in view of what had transpired on January 7 1980 that same day he instruct ed the Respondents payroll department to discontinue A&S benefit payments to Eddy which it did 47 Brown s proffered reason for Eddy being ordered to report to work immediately that very afternoon even though there was another employee working at the gate at the time was in substance to give Eddy the opportu nity to familiarize himself with the duties required at this gate and it had been reported to him that Eddy was well enough to accomplish this job and therefore why wait He added that Pardue had told him we needed a gateman as soon as we could get him because While Brown denied at first that the Respondent had attempted to contact all the employees on accident or sick leave on January 7 1980 to have them return to work he did state that he had no knowledge wheth er Pardue had requested Bates to see if any other employees on the absent list could be found to be available for light duty jobs at Texaco on that date He then testified that from the information I have before me Eddy was the only one that fell within that category 6 However as stated before Brown admitted that the Respondent was aware at this time that under the provisions of the reopener agree ment Local 5-217 could validly engage in a strike action on January 8 1980 since the terms of the contract that were subject to negotiations- was set to expire 46 Eddy s Employee Medical Record (see R Exh 2) contains the following notations 1/3/80-Employee called in-States he will be off another 2 wks 1/7/80-Dr Dunlap phoned Dr Stivers for report on employee Dr Dunlap was told that employee may report for gate duty immediate ly Employee was notified by Employee Relations Dept C Bates RN As indicated before Eddy denied that Brown had mentioned any date for his return when Brown advised him that he had better come to work or else 4 See R Exh I (Absentee Notice and Pay Order ) which states Please discontinue A&S Benefits for Forrest E Eddy effective 12 30 p m January 7 1980 Advised employee to return to work as per Dr H E Dunlap s verbal approval (1-7-80) however employee refused to return in conversation with John L Brown Jr and Ron 0 Pardue This form is dated January 7 1980 and signed by Brown and another employee TEXACO INC we were looking at the rest of the week of January 7th We anticipated that next week-we couldn t be certain-but one of the regular gatemen was supposed to go to the hospital As it turned out he didn t but you have to plan these things a little bit ahead of time William Gastinger the assistant supervisor in the Re spondent s employee relations department testified that he was present in Browns office on January 7 1980 when the above phone call took place 48 He related that Pardue had come into Browns office and told Brown that he had Eddy on the phone and that Eddy had re fused his direction to come to work Gastinger stated that Brown instructed Pardue to advise Eddy that his medical release had been obtained from his own doctor through Dr Dunlap and that he should report for work but that after Pardue again advised Brown that Eddy won t come to work Brown had said Well let me talk to him or something to this effect Gastinger con tinued that Brown then told Eddy Well Forrest we have an opening on the gate that requires very little strenuous activity at all You sit and you punch buttons Your doctor Dr Dunlap has concurred with Dr Stivers that you should be able to do the work That it is well within any restriction you should have on you on the basis of your medical difficulty which I think was a knee We have a policy that we offer a person work that he is capable of doing If he refuses we will sever your A&S benefits and even subject you to possible discipline because it is a form of insubordi nation' Something to this effect It should be noted that neither Pardue nor plant nurse Bates were called as witnesses to testify at the hearing The Respondents Practices Concerning Absences Brown testified that it is the Respondents practice to require employees who are out sick for three days or longer to provide a valid medical certificate that their illness is the cause of the absence Failure to do so ac cording to Brown could result in the severance of A&S benefit payments He also testified that the Re spondent required employees to report their absences from duty without prior notice to and permission from the employees immediate supervisor to their supervisor or the plant nurse and failure to do so could result in dis charge 49 Regarding the above Eddy testified that while em ployees on sick leave usually have to provide a work release to their immediate supervisor or the nurse 48 Gastinger accounted for his presence in Brown s office at precisely the time the conversation between Brown and Eddy occurred by assert mg that because contract negotiations were then being conducted be tween the Respondent and Local 5-217 with he and Brown being the Respondents representatives they were frequently together discussing strategies 49 See R Exh 4 (notice to employees posted in refinery) 333 this requirement is only loosely enforced by the Re spondent He stated Well some they do and some they don t It de pends upon-well lets don t get into that Let s just say that some people they have required this of and others they don t Eddy continued that he was not aware of any written rule requiring an employee who is sick one or more days to have a doctor s release before returning to work al though he knew There is an article in there that says the company may require but nothing concrete that says everybody has to Eubanks testified that employees are obligated to report their absences to their supervisor and to keep the Respondent informed of the status of their disability during its course He stated that he called the plant nurse during his illness to keep her apprised of his medical condition and for the same reason secured a medical re lease from his doctor to provide to the Respondent be cause this is required He also testified that he discontin ued such reporting to the Respondent while the strike was in progress Williams related that she had provided the Respondent with a doctor s certificate both at the time she went on maternity leave and at the time she returned to work as required by the Respondent but had not called in to advise about the progress of her pregnancy except that They knew when I had the baby yes However she also testified that the Respondent contacted her on the day the strike was settled to find out about her Materni ty status Eckelstafer testified that he notified the Respondent on January 7 1980 that he would be out ill until January 9 1980 and he submitted a medical certificate from his doctor to the Respondent in corroboration after the strike ended Eckelstafer indicated that This matter of staying in touch is done so that [his supervisor] can make a [weekly work] schedule for employees Dugger stated that he had reported his disability to his supervisor when it occurred as he ordinarily did when absent because under the Respondents absence reporting policy it is an employees obligation to keep his supervi sor advised of his medical status so that he can schedule you for work Farris indicated that he notified his foreman of his ab sence due to illness as obligated so he can keep a sched ule and know who is going to be available for work when He stated that the Respondent requires a doc tor s certification before they will under normal circum stances pay A&S benefits Farris continued that while he actually obtained a medical release to return to work from his doctor and had notified the Respondent that he had such medical certification he carried it around with him and then threw it away because the Respondent had not required it because he did not expect to be receiving A&S benefits during the period of the strike According to Hof a doctor s release is necessary on returning to work after an illness He testified that after obtaining a doctor s release he never gave it to the Respondent because nobody ever asked me for it He 334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD stated that he had notified the plant nurse of his illness when it started and normally would have kept the Re spondent apprised of its progress but like the other em ployees on disability did not do so during the period of the strike When asked if under normal circumstances the Respondent requires a doctor s excuse and release before an employee can receive A&S benefits he re sponded Normally if you are off more than three days I think it is or something like that Hof added that he did not submit his doctor s medical release form to the Respondent when he obtained it because in view of the strike he believed that he would not receive any A&S benefits for his illness anyway He related that should an employee not call in to report an absence due to illness he would still receive the benefits he would be entitled to but it might be a hard time trying to receive them Phipps testified that whenever he has been absent from work due to illness or accident he had brought in a med ical statement from his physician attesting to the reason for his illness He presented the Respondent with a medi cal certificate stating that he was physically able to return to work after January 14th Phipps did not know whether he would lose his A&S benefits if he failed to submit a doctor s slip because he had always done so in the past on returning to work Finally Leonard Hardison testified that absence for 3 days or more requires a doctor s release to go back to work His testimony continued Q And you have to have the doctors release before you are going to be eligible [sic] for A&S Benefits? A No I don t know about that I know you have to have a doctor s release to go back to work As far as A&S benefits you have to-you miss one day before your-You know you have got so many days off before you are eligible for that Hardison added that it was an employees obligation to report absences due to illness when they occur and to keep the Respondent periodically apprised of his or her medical condition It would appear from the testimony of the above wit nesses that the employees were aware of the need for re porting their absences to the Respondent and that they usually complied However during the strike most em ployees out on accident or sick leave failed to periodical ly report their medical status to the Respondent As to the need to submit a medical certificate to establish eligi bility for A&S benefits the evidence of this will be dis cussed in detail C Analysis and Conclusions In Southwestern Electric Power Co 216 NLRB 522 (1975) a majority of the Board held that an employer may reasonably believe that employees on sick leave before a strike support it solely on the basis that the strike is effective and the employees are union members despite the fact that the employer has no way of know ing with certainty whether the employees on sick leave do or do not support the strike activities of their fellow employees The majority therefore concludes that the employer acted lawfully by terminating sick leave bene fits to employees prior to any showing that they affirma tively supported the strike 50 Subsequently in the case of Emerson Electric Co 246 NLRB 1143 1144 (1979) a majority of the Board reject ed the rationale in the Southwestern Electric Power Co case supra and concluded that an employer may not rely on such speculative grounds to justify the terming tion of existing disability benefits to employees that had accrued to them as a result of past work performed 511 The Board majority in agreement with the language in Member Fanning s dissent in Southwestern Electric Power Co supra stated In short these employees had a Section 7 right to refrain from declaring their position on this strike while they were medically excused [Id at 523 ] Consequently an employer may no longer require its disabled employees to disavow strike action during their sick leave in order to receive disability benefits To allow the termination of such benefits to certain employees as a result solely of the strike activities of others is to penalize the employees who have not yet acted in support of the strike To the extent that Southwestern Electric Power Company supra is inconsistent with our decision herein it is hereby overruled The Board continued However while disabled employees need not of firmatively disavow the strike action neither can they participate in the strike without running the risk of forfeiting benefits prospectively 4 For all practical purposes any employee disabled or sound who affirmatively demonstrates his support of the strike by picketing or otherwise showing public support for the strike has enmeshed himself in the opening strike activity to such an extent as to terminate his right to continued disability benefits 7 This result represents a fair accommodation be tween the rights of employees and the interests of employers For while employees have the protect ed right to receive disability benefits without dis avowing the strike an employer should not be obli 50 However Board Member Fanning dissenting stated The Respondent takes the simplistic position that as wages under the law are not continued for sinkers they are not continued for those on continuing sick pay unless the recipients disavow the strike In essence my colleagues agree This ignores Section 7 and the right of an employee to join in or refrain from concerted activity Grant ed these employees 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 the Board to require that they disavow legal strike action by their Union during their sick leave in order to receive their sick pay Not only is it contrary to the statute but it lacks support in Board precedent 1Southwestern Electric Power Co supra at 523 ] 51 Board Member Penello dissented stating I find that the position advanced by the majority of the Board in Southwestern Electric Power Co 216 NLRB 522 (1975) in which I participated presents a correct analysis of the issues involved in de termining the legality of the termination of disability benefits during strikes [Emerson Electric Co supra at 1146 1 TEXACO INC gated to finance a strike against itself as would be in the case if we ordered Respondent to pay such benefits for the period during which the disabled in dividuals participated in strike activity Accordingly we now hold that for an employer to be justified in terminating any disability benefits to employees who are unable to work at the start of a strike it must show that it acquired information which indicates that the employee whose benefits are to be terminated has affirmatively acted to show public support for the strike * The employees actions in support of the strike however may not be used to deprive them of any benefits for the time away from work prior to their supportive action 7 We find that such affirmative support for the Union s strike activities was also shown by evidence that Joseph Lawrence during the period of his disability worked in the Union s office an swenng telephone calls That the facts and circumstances present in the instant case are essentially similar to those contained in Emerson Electric Co supra is clear from the record As did the employer in Emerson Electric Co the Respondent noti feed the Union that it would discontinue A&S benefit payments to employees who would otherwise be receiv ing them at a time when a strike at its facility was immi nent but before there was any showing of how wide spread the strike would be and admittedly before the Respondent was aware that any of the employees who were unable to work ratified or actively supported the strike Furthermore the Respondent as did the employer in Emerson Electric Co supra terminated these benefits immediately on the commencement of the strike and while in the Emerson Electric Co case this was done de spite a union representatives clear protest that the indi viduals who were unable to work were not participants in any strike in the instant case it was done despite Local 5-217 s stated position that the Respondent was obligated under the collective bargaining agreement then in force and effect to continue payment of A&S benefits to employees on sick leave during the period of the strike Moreover as similarly occurred in Emerson Electric Co supra the Respondent based its belief that employees on sick leave before a strike support it solely on the basis that the strike would be effective because the employees were union members 52 Significantly and after referring to the above the Board in Emerson Elec tric Co supra at 1143 stated In these circumstances we agree with the Adminis trative Law Judge that Respondents announcement 82 As will be more particularly set forth in Emerson Electric Co Y NLRB 650 F 2d 463 (3d Cir 1981) the court of appeals modifying and enforcing the Board s Order in the Emerson Electric Co case held in effect that in the context of the is ue presented in that case an employer can discontinue accrued accident and sickness benefits only where the employees disability ceases so that a return to work is possible or where such benefits have been exhausted assuming the employee is otherwise entitled to these benefits under the existing accident and sickness benefit plan while the Board held in the underlying case itself that affirmative action in support of the strike by the employee on accident or sickness leave was needed to justify the employer s action 335 of the termination of these benefits was intended to coerce and restrain the protected union activity with respect to the strike by imposing a sanction against certain unit employees if others in the unit engaged in strike activity The Respondent s accident and sick benefit plan pro vides that benefits are to be paid to injured or sick em ployees who would otherwise be working The Respond ent asserts correctly that injury or illness must be the sole cause of the employees absence for entitlement to benefits However the Respondent contends that since the employees receiving A&S benefits on January 8 1980 when the strike began would have otherwise have joined the strike or honored the picket line and remained away from their jobs had it not been for their disability they are not entitled to the continued receipt of such benefits during the period of the strike because their injury or sickness no longer constitutes the sole cause of their absence 53 In support of this contention the Respondent points to the circumstances found here that none of the concerned employees informed it that they disavowed the strike and would be working in the absence of their disability that these employees admitted that had they not been dis abled they would have either honored the picket line or joined the strike on January 8 1980 and thereafter that none of the employees protested the termination of their A&S benefits or took steps to establish their eligibility at the time and that several of the employees acknowl edged that under the circumstances of their strike sup port they did not consider themselves entitled to A&S benefits during the strike However again the similarity between the instant case and Emerson Electric Co supra cannot be denied Therefore as to the Respondents above contention Em erson Electric is controlling That being the case an em ployer may no longer require its disabled employees to disavow strike action during their sick leave in order to receive disability benefits as did the Respondent The A&S benefits involved are accrued benefits These benefits are deferred compensation for work already done in contrast to wages The right to and the total amount of benefits are tied to the duration of past serv ices and the wages paid for them Although they are conditioned on the employee suffering and continuing to ss The Respondent in its brief states Here the Union waived what the Board in Emerson Electric deemed a Section 7 right [to refrain from declaring a position on a strike while disabled and receiving A&S benefits] by agreeing to limit set Clement to A&S benefits to employees whose absence is caused solely by illness or injury and by agreeing to permit the Company to shift the burden of proving entitlement to the employee claiming A&S benefits These employees failed to establish their contractual right to A&S benefits by refusing to disavow the strike and supporting it from the inception to the extent they could and in the case of most employees by failing to keep the company apprised that they were unable to work due to illness or injury and by failing to provide evi dence of illness routinely required by the Company They thereby established for purposes of the Plan that they were on strike rather than ill or injured The Company was not obligated and had no reason to assume that the continuing unexplained absence of these employees was caused solely by illness rather than by support for the strike 336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD suffer a disabled illness or injury they do not depend on any return to work or on any future services to the Re spondent As set forth above the Respondent contends that the continued payment of benefits is conditional also on no strike occurring because the applicable benefit plan de fines disability as the condition of being unable to work solely because of injury or illness It argues in substance that here the employees would not have worked during the strike because they were union members and because the strike was fully effective Because they were not absent from their jobs solely due to physical disability the Respondent claims they are not entitled to benefits However because the plan defines disability in terms of the employee being absent from work because of illness or injury the definition turns on the physical capacity to carry on ones occupation only It does not make A&S benefits dependent on the availability of work for that particular employee nor the employees frame of mind regarding the strike absent his disability Moreover nothing in the record of this case indicates that the benefit plan contemplated that employees who were incapable of performing their usual occupations for the Respondent would not be deemed disabled for the purposes of receiving benefits Rather if an employee is certified as disabled the only relevant consideration within the period for which benefits are due is whether the employee has again become able to work Therefore the A&S benefits were accrued benefits and payable to disabled employees within the period of the strike 54 Furthermore the Supreme Court held in NLRB v Erie Resistor Corp 373 U S 221 (1963) the Board may properly infer the existence of discriminatory motivation or improper intent without evidence of illegal subjective intent Where the employer has engaged in conduct that is inherently discriminatory or distructive by its very nature the employer must be held to intend the conse quences which foreseeably and inescapably flow from it The Supreme Court held additionally in NLRB v Great Dane Trailers 388 US 26 (1967) that the Board may find the necessary discriminatory motivation or improper intent even if the employer shows its conduct had a proper motivation so long as the impact of the discnmi nation by the employer is inherently destructive of Section 7 rights Because of the above and the circumstances here present namely that the Respondent declared that A&S benefits would not be paid to employees who would oth erwise receive them made at a time when a strike at its Tulsa Oklahoma facility was imminent but before there 64 That the employees did not protest the Respondents termination of their A&S benefits or that they acknowledged since they supported the strike that they did not consider themselves eligible for such benefits dunng the strike is of no moment Aside from the above rulings in Emer son Electric Co supra which makes such circumstances irrelevant con cerning this issue most if not all of these employees were employed by the Respondent during a prior strike at the refinery and it is safe to assume that the Respondent had also discontinued A&S benefits to em ployees receiving them at the time of that strike Having knowledge of the Respondents previous successful action in terminating such benefits it is no wonder that they would believe that any protest would be futile or that they actually were not entitled to such benefits because of the strike was any showing of how widespread the strike would be and before the Respondent was aware that any of the employees who were unable to work ratified or actively supported the strike and that the Respondent terminated these benefits immediately on the commencement of the strike despite Local 5-217 s stated position that the Re spondent was obligated to continue payment of A&S benefits to employees on sick leave during the course of the strike I find and conclude that the Respondents an nouncement of the termination of these benefits was in tended to coerce and restrain the protected union activi ty with respect to the strike by imposing a sanction against certain unit employees if others in the unit en gaged in strike activity 55 I also find from the facts present here and from the foregoing that the Respond ent s contention that Local 5-217 waived these employ ees Section 7 rights has no merit having no support in the record evidence Additionally the Respondents accident and sick bene fit plan further provides that Under certain circum stances the Company may require a medical certificate from a physician before benefits are paid (Emphasis added) The Respondent asserts that thereby Texaco has reserved the right under the plan to terminate A&S benefits requiring the employee to come forward and present satisfactory evidence of entitlement to benefits It contends that because several of the employees receiv ing A&S benefits at the time the strike began on January 8 1980 failed to do so it could lawfully terminate such payments to them However the evidence does not sup port the Respondents contention At the outset it is clear that but for the strike the em ployees receiving A&S benefits at the time would have continued to do so without the need at least until their disability ended and they returned to work for any writ ten medical certification and without regard to any other consideration but their continued disability Moreover several of these employees testified to the discretionary nature of the Respondents requirement for such medical certification to support the receipt of A&S benefits and the language of the plan itself supports this albeit it ap pears that the employees as a matter of course submitted medical statements to support their absences 56 Despite the above and Brown s testimony that it was the Respondents practice to require the submission of medical certification by employees to support their enti dement to A&S benefits the evidence indicates that the Respondent did not automatically discontinue such pay ments to employees who failed to comply Moreover it should be noted that the Respondent did require medical certification to validate all absences of 3 days or more requiring the employee to come forward with such docu mentation and Brown tended to interchange this manda tory requirement with the plan s requirement of a medi cal certificate if the Respondent so requires it The letter of necessity infers a request by the Respondent to the ss Emerson Electric Co supra enfd 650 F 2d 463 (3d Cir 1981) Also see Walter Motor Truck Co 256 NLRB 1059 (1981) 56 Their actions in this respect seem tended more to meet the require ment of justifying their absences in order to retain their jobs rather than directed at any prerequisite for entitlement to A&S benefits TEXACO INC employee concerning medical certification supporting A&S benefits entitlement and contrary to Browns tests mony 57 Significantly the record is devoid of any evi dence showing that any disabled employee was ever denied A&S benefits for failure to provide a written medical certificate of disability Be that as it may the evidence shows that had the Respondent requested medi cal certification to substantiate the disability of any of the employees on accident or sick leave when the strike began such certification would have been forthcoming 58 From all the above I am led inexorably to the belief that as admitted at least in part by the Respondent the strike was the real cause of its termination of A&S bene fits to bargaining unit employees receiving them at the time of the strike and that this additional contention is an afterthought in view of the Board s decision in Emerson Electric Co supra The Respondents answer additionally raised as a de fense the strike Settlement and Memorandum of Agree ment where Local 5-217 for various considerations agreed to withdraw the unfair labor practice charges re lating to the Respondents failure to pay the A&S plan benefits to employees within the bargaining unit during the strike The Respondent contends that because of this agreement it was discharged for any and all obligations if any to pay A&S plan benefits to employees covering the period of the strike While no reference was made to this in the briefs filed here nor motions made to dis miss based thereon still the Respondent offered evidence at the hearing in this connection Be that as it may I reject this defense as unmeritorious The Board acts in the public interest to enforce public not private rights 59 By well established principle pri vate contracts may not be used to legitimate unfair labor practices nor to divest the Board of jurisdiction over such practices 60 As the Supreme Court stated in J I Case Co 321 U S 332 (1944) [W]herever private con tracts conflict with its function they obviously must yield or the Act would be reduced to a futility Id at 337 Further Section 10(a) of the Act explicitly provides that the Board s power to remedy unfair labor practices 57 It is interesting to note the following language in R Exh 3 New Employee Orientation outlined which states 5) Absences I Sickness a Three (3) scheduled workdays or more employees must submit medical certificate validating the absence (Emphasis added ) 11) Benefit Plans (continued) I Accident and Sick Benefit Plan [b]3 Medical certification required for benefits While Brown testified as indicated to a strict mandatory requirement of medical certification as a condition of eligibility for A&S benefits the employees involved testified to a more flexible and less stringently en forced requirement ss Several employees testified that they obtained medical certificates from their doctors carried it around with them on their person or re tamed them at home and discarded them when the Respondent failed to request the document 9 National Licorice Co v NLRB 309 U S 350 (1940) Amalgamated Utility Workers v Consolidated Edison Co 309 U S 261 (1940) Agwilines, Inc P NLRB 87 F 2d 146 (5th Cir 1936) 60 NLRB v C & C Plywood Corp 385 U S 421 ( 1967) also see Elec Ironic Workers IUE Local 613 v NLRB 328 F 2d 723 (3d Cir 1964) Ma chmists Lodge 743 v United Aircraft Corp 337 F 2d 5 (2d Or 1964) cert denied 380 U S 908 (1965) 337 shall not be affected by any other means of adjustment that has been or may be established by agreement law or otherwise The policy reflected in the precedent and expressed in Section 10(a) of the Act prevents a party from engaging in unfair labor practices that may coerce a favorable labor agreement and then insulating itself from Board sanctions by exculpatory provisions in that agreement Accordingly the parties cannot by con tractual agreement divest the Board s function to operate in the public interest 61 The Respondents other contentions that The Rule in Emerson Electric is Unreasonable and Conflicts with Well Established Principles of Labor Law and that Even Under Emerson Electric the Company was Privi leged to Terminate All A&S Benefits at the Strike s In ception have been either considered by me or are ne gated and disposed of by the Board s ruling in the Emer son Electric Co case and the U S Court of Appeals for the Third Circuit decision in the enforcement proceed ing 62 In view of all the foregoing I find and conclude that the Respondent violated Section 8(a)(3) and (1) of the Act when it terminated A&S benefits to employees who were physically unable to work after January 8 1980 because other employees actively employed at the Re spondent s Tulsa Oklahoma facility went out on strike The General Counsel contends that Eddy s A&S bene fits like those of the other employees receiving such benefits at the time the strike commenced were terms nated solely as a result of Local 5-217 going on strike on January 8 1980 The Respondent denies this and asserts that There simply is no basis upon which the termina tion of Forrest Eddy s benefits can be related to the strike that subsequently occurred It contends that Eddy s A&S benefits were terminated because he refused to return to work for restricted gate duty although di rected to do so after the Respondent had been apprised by Eddy s doctor that he was physically able to accom push this work Regarding Forrest E Eddy the evidence shows that Eddy was receiving A&S benefits prior to January 7 1980 due to an industrial accident However unlike the other employees whose A&S benefits were terminated on January 8 1980 admittedly because of the strike his benefits were terminated on January 7 1980 because of his refusal to return to work on that day an alleged reason offered by the Respondent independent of the strike Direct evidence of a purpose to discriminate is rarely obtained especially as employers acquire some sophisti cation about the rights of their employees under the Act but such purpose may be established by circumstantial evidence inferred from the record as a whole 63 A 6 Also see Emerson Electric Co v NLRB supra enfd as modified 650 F 2d 463 (3d Cir 1981) 82 Emerson Electric Co supra enfd Emerson Electric Co Y NLRB supra 83 Parkvtew Acres Convalescent Center 255 NLRB 1164 (1981) Health International 196 NLRB 318 (1972) Corrie Corp v NLRB 375 F 2d 149 152 (4th Cir 1967) NLRB v Neuhoff Bros 375 F 2d 372 374 (5th Cir 1967) Shattuck Denn Mining Corp v NLRB 362 F 2d 466 470 (9th Cir 1966) Hartsell Mills v NLRB 111 F 2d 291 293 (4th Or 1940) 338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD review of the entire record convinces me that Forrest E Eddy s A&S benefits were terminated on January 7 1980 because of the strike engaged in by fellow employ ees on January 8 1980 as were the other employees who had their A&S benefits discontinued the very next day as previously set forth That the Respondent was aware on January 7 1980 that there was a strong possibility that a strike could occur on January 8 1980 if progress in the bargaining negotiations pursuant to the reopener clause was not made before the January 8 1980 deadline can reasonably be inferred from the evidence presented The Interns tional Union s representative McGough had apprised the Respondents representatives at prior negotiating ses sions of this possibility Although Brown asserted that he believed no strike would ensue if the deadline was reached on January 8 1980 basing this belief on the Re spondent s prior experiences during two previous strikes by the Union at its Tulsa Oklahoma plant still the evi dence clearly indicates that the Respondent was never theless cognizant of the strike possibility 64 In this context and according to Eddy s uncontradict ed testimony the Respondent on January 7 1980 sought to call in all employees on accident or sick leave who could be medically released by their doctors or other wise for return to work before a strike commenced 65 The Respondent in its brief contends that the record itself demonstrates the absurdity of Eddy s contention that he was called back to work because of the strike It continues Only one employee was deemed sufficiently healthy to assume the single position that needed to be filled The record hardly demonstrates a mad scramble by the Company to call back the masses before they could go out on strike Rather the call 14 Brown submitted that Texaco always p epared tself du ng negot a tions for the advent of a strike because it could not leave such prepara tions to the last minute Additionally the evidence shows that the Re spondent as early as the meeting held on January 5 1980 discussed with Local 5-217 the orderly shutdown of a part of the facilities at the re finery before official notification by the Union on the afternoon of Janu ary 7 1980 that a strike would ensue on January 8 1980 65 Eddy testified that when he spoke to the Respondents plant nurse Cathleen Bates on January 7 1980 about the Respondents direction to him to return to work issued by Pardue and Brown she advised him that they were calling back all the people that they could call back because of the strike The Respondent dismisses Eddy s testimony as merely a hearsay assertion and contends that Leaving aside the rather over whelming logical improbability of the Company so informing Eddy if it were acting on that basis the record itself demonstrates the absurdity of Eddy s contention I do not agree Significantly Cathleen Bates did not testify to contradict this testimony and the Board has consistently held that where relevant evidence is not produced by a party and the failure not satisfactorily explained the trier of the facts may draw an inference that such evidence would be unfavor able to that party See Publishers Printing Co 233 NLRB 1070 (1977) Martin Luther King Sr Nursing Center 231 NLRB 15 ( 1977) Broadmoor Lumber Co 227 NLRB 1123 (1977) Fruehauf Trailer Co I NLRB 68 (1935) Further that Bates would have made such a statement is not without the realm of possibility because she was the plant nurse not a manager or supervisor and it can be readily assumed from the evidence not so knowledgeable in labor relations law as to be aware of any significance in her remarks She just might conceivably have been relaying to Eddy the Respondents instructions to her concerning all the employees on acci dent or sick leave to work of Eddy was carried out in a routine manner in response to a limited need The director of personnel John Brown did not even become aware of the matter until Eddy refused to report If the Company were trying to call back a disabled employee before an anticipated strike in order to avoid any obligation of paying those benefits during the strike it would hardly have called back Forrest Eddy an employee whose industrial injury made him eligible in the Company s eyes for benefits without regard to whether a strike occurred Thus even if the Company had intentionally called Eddy back to work while knowing he was incapable of performing the requested work that action would have been unrelated to any anticipated strike- under the Company s stated procedures a strike could not have affected Eddy s A&S benefits Cer tainly the Company would not have retaliated against Eddy if it was seeking to penalize the Union Eddy was the only bargaining unit employee in the plant who had not authorized dues checkoff As such the Company s actions with respect to Eddy as a matter of law could not be construed as an unfair labor practice Let us examine the above contention in the light of the evidence present Assuming the correctness of the Respondents asser tion that Eddy was found to be the only employee deemed sufficiently healthy to fill the gatekeepers job this would presuppose investigation of the medical status of the other employees on accident or sick leave and could be construed as supportive of Eddy s testimony concerning Bate s statement to him that the Respondent was seeking to return to work as many of the disabled employees receiving A&S benefits as it could because of the strike 66 That the Respondent assumed that all the employee members of Local 5-217 in the appropriate bargaining unit would support the strike is clear from the evidence That the only bargaining unit employee who was not a union member was ordered to return to work before the strike began seems more than coincidental 67 Of compelling significance are the circumstances them selves surrounding this incident as evidenced in the record and the reasons given by the Respondent for its order to Eddy to return to work immediately Brown testified that after receiving medical clearance Eddy was contacted by telephone and requested to report for gate duty that very day January 7 1980 Eddy testified that Pardue had called him and told him to report to work the following morning January 8 1980 In crediting the testimony of Eddy I note the contradictory nature and evasiveness of parts of Brown s testimony concerning 66 The Respondent contends in the alternative that this is evidence that it sought to find an employee on accident or sick leave who could be medically released for light duty to work this particular job thus the checking of their medical status that day 64 If the Respondent planned to discontinue A&S benefits to as many of the employees in the bargaining unit as a threatened or actual affirma five action against the Union s strike action then as concerns Eddy this would have been the only way it could have reasonably proceeded against him or his A&S benefits would have continued despite the strike TEXACO INC this occurrence and the disparity between the testimony of the Respondents own witnesses I also note the failure of the Respondent to call several witnesses under its con trol without adequate excuse who could shed light on this incident as will be set forth Brown first testified that he had called Eddy on Janu ary 7 1980 and told him to report to work immediately He subsequently testified that it was Pardue who had ini tially telephoned Eddy which he knew nothing about until Pardue informed him that Eddy had refused to come to work whereupon Brown became involved in the conversation then speaking to Eddy himself Al though the preceding is of minor importance significant ly Brown also testified regarding the content of his con versation with Eddy the extent of which was I called Mr Eddy and instructed him to report immediately on January 7 1980 68 However another of the Respond ent s witnesses Gastinger testified that he heard Brown say that there was an opening on the gate that requires very little strenuous activity at all that your doctor Dr Dunlap has concurred with Dr Stivers that you should be able to do the work and that We have a policy that we offer a person work that he is capable of doing If he refuses we will sever your A&S benefits and even subject you to possible discipline because it is a form of insubordination most of which Brown in his own testimony never acknowledged having said Of ad ditional significance is the failure of Pardue to testify re garding what he told Eddy about Eddy s return to work i e what date Eddy was to report back to the refinery etc The Board has often held that a party s failure to produce a witness whose testimony is material and rele vant to an issue in the case gives rise to an inference that such evidence would be unfavorable to that party 69 Furthermore Eddy s account of what occurred is en hanced by its reasonableness and the failure of Pardue to contradict it Eddy testified that Pardue had instructed him to return to work the following day and Eddy an swered that he could not do so still being disabled de spite his medical release by Dr Stivers He stated that he telephoned Pardue the next day on January 8 1980 and advised Pardue that he was still unable to return to work No evidence contradicting this was given 70 Moreover the Respondents concern with the date that Eddy was instructed to return back to work can only have any significance if the Respondent was sensitive to whether it occurred before or after it received official notification from Local 5-217 regarding the actual date of the strike and I find Brown s testimony that the date was January 7 1980 instead of January 8 1980 support ing the inference that the strike was the reason for its or dering Eddy to return to work This way either his actual return to work or his refusal to do so could form 18 Eddy s version of his conversation with Brown is close to this as concerns brevity Eddy related that Brown had told me that they had gotten a release for me to come to work that I had better be there or else and hung up the phone ea See the cases cited in fn 65 "I I am not unaware that Brown requested the Respondents payroll department on January 7 1980 to discontinue A&S payments to Eddy because of his refusal to return to work (R Exh 1) However in review ing the working of the document accomplishing this it is not inconsistent with Eddy s testimony 339 the basis for the Respondent discontinuing his A&S ben efits during the period of the strike Additionally the Respondent gave as its reason for or dering Eddy to return to work immediately although ad mittedly it had another employee manning the gate that morning that it wanted to give Eddy the opportunity to familiarize himself with the gate duties Brown also testi feed that this immediacy was due to Pardue having in formed him that we needed a gateman as soon as we could get him because we were looking at the rest of the week of January 7th We anticipated the next week-we couldn t be certain-but one of the regular gatemen was supposed to go to the hospital As it turned out he didn t but you have to plan those things a little bit ahead of time However Eddy testified uncontradictedly that he had previously worked at this gate and was fully familiar with its operations and the duties required of the gate man As far as I am concerned and as the record indi cates it was never satisfactorily nor clearly explained why there was such an urgency requiring Eddy to report immediately to the refinery because the gate was not un attended and this coupled with all the foregoing leads me to the belief that his return to work was dictated by the prospect of the strike It is also notable that the Re spondent reinstated Eddy s A&S benefits immediately on the settlement of the strike and its termination The General Counsel in his brief states Eddy was called solely as a measure in prepara tion for a strike His alleged refusal to return was considered an act of support for the Union despite his physical condition at that time The fact of the matter is that Eddy was physically unable to return to work As a result he telephoned Pardue and re ported that he was unable to work the morning of the 8th It was not until sometime after the strike ended that Eddy was formally released to return to work at which time he did 16 Consequently Eddy was treated in the same manner as all other employ ees on A&S leave who were unable to return imme diately after the strike ended This action (reinstate ment of A&S benefit payments upon termination of the strike) clearly supports the General Counsel s contention that Eddy was considered a supporter of the strike and not an employee who refused to return to work Accordingly it is contended the credible evidence establishes that Eddy s A&S bene fits were terminated solely because of Local 5-217 s strike 18 Note also that contrary to its position as to the basis for ter minating Eddy s A&S benefit payments his payments were re sumed after the strike ended as was the case with all unit employ ees still on A&S leave 340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD From all the foregoing I agree with the General Coun sel s above contentions 71 The complaint further alleges and the General Counsel contends that the Respondent violated the Act when it treated employees on A&S leave similar to strikers when computing the amount of pension benefits employees lost as a result of the strike thereby reducing the retirement benefits of these employees Under the Respondent s group pension plan an employee having over 1 year of service would be credited with 1 month of benefit serv ice for each calendar month that the employee is not absent from work with less than full pay for 15 days or more effective June 30 1976 and thereafter 72 Howev er if an employee is absent because of illness or accident receiving the equivalent of full pay the employees pen sion contributions paid by the Respondent would con tinue and the employee would earn pension benefit serv ice during this period 73 There is no question in my mind that the previous discussion concerning A&S benefits would be similarly applicable to pension benefit service credit regarding those employees who were absent be cause of accident or illness during the period of the strike 74 Therefore those employees absent from work by reason of accident or sickness and whose physical dis abilities continued through the strike and who were enti tied to A&S benefits equivalent to full pay thereby meeting the conditions required under the Respondent s group pension plan concerning the fulfillment of the req ufsite number of working days in a month are entitled to receive the appropriate pension benefit service credit for this period The Respondents denial of these benefits because of the strike to employees entitled thereto con stituted additional unlawful conduct I therefore find and conclude that the Respondent also violated Section 8(a)(3) and (1) when it failed to grant the appropriate pension service credit for the period of the strike to those employees on accident or sick leave entitled to such credit Additionally while the complaint alleges that the Re spondent also violated Section 8(a)(3) and (1) of the Act by reducing the vacation credits of employees disabled during the period of the strike the General Counsel as serted in his brief 71 Even assuming arguendo that Eddy s refusal to return to work on January 8 1980 was also a cause of the Respondents termination of his A&S benefits during the period from January 7 1980 through March 30 1980 under the Boards ruling in Wright Line 251 NLRB 1083 (1980) which would be applicable here as analogous I would find that the Gen eral Counsel had made a prima facie showing to support the inference that protected conduct the strike was a motivating factor in the Re spondent s decision to discontinue his benefits and that the Respondent had failed to meet its burden of proof to demonstrate that the same action it took against Eddy that of terminating his A&S benefits would have taken place even in the absence of the protected conduct the strike 72 Jt Exh 6 7s Ibid 74 From the evidence presented here the conclusion is inescapable that the Board s holding in Emerson Electric Co supra is as applicable to pension service credit as it is to A&S benefits regarding employees on disability during the period of the strike the difference between these types of benefits being the requirements for eligibility or accrual under the respective plans The formal text of the vacation plan establishes that vacation periods vary in length on years of service Vacations may be reduced on a prorated basis due to excessive absenteeism the preceding year for vacation time is directly related to attend ance in the past calendar year It further states that certain specified absences would not be considered when calculating any reductions [Under the plan] absences due to A&S leave are not included The record evidence establishes that as a result of the absences due to the strike all hourly paid employees (unit employees) lost one day of vacation 76 How ever the reason for the reducing was due solely to the employees not having worked and not because of the strike Consequently it does not appear that employees on A&S leave would have been treated any differently had there not been a strike and would have lost that one day of vacation in either case It therefore appears there is insufficient evi dence to establish a prima facie violation regarding the application of vacation policies by Texaco against employees on A&S leave during the period of the strike Accordingly the General Counsel moves to withdraw this allegation What the Respondents vacation actually pro vides is The initial vacation for which an Employee qualifies will be reduced on a prorated basis by absence preceding his or her Qualifying Date however absences due to Temporary Layoff jury duty time lost not in excess of 180 consecu tive days on account of industrial accident and absence for other reasons totalling 26 days or less shall be disregarded 76 While there is some doubt in my mind whether the Re spondent also treated employees on A&S leave similarly to the strikers for purposes of vacation time accruals I agree with the General Counsel that there is insufficient evidence here to establish a prima facie violation con cerning this I therefore will grant the motion of the General Counsel to withdraw this allegation 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 the operations of the Re spondent described in section I above have a close inti mate and substantial relationship to trade traffic and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof 76 Williams testified that she was advised that she had lost 3 days vaca tion because of her maternity leave 76 See Jt Exh 7 TEXACO INC 341 V THE REMEDY Having found that the Respondent has engaged in cer tam unfair labor practices in violation of Section 8(a)(3) and (1) of the Act I shall recommend that it cease and desist and take certain affirmative action designed to of fectuate the policies of the Act As set forth in Emerson Electric Co supra at 1143 the Board held However while disabled employees need not of firmatively disavow the strike action neither can they participate in the strike without running the risk of forfeiting benefits prospectively 4 For all practical purposes any employee disabled or sound who affirmatively 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 continued disability benefits 7 The employees action in support of the strike however may not be used to deprive them of any benefits for the time away from work prior to their supportive action 7 We find that such affirmative support for the Union s strike activities was also shown by evidence that Joseph Lawrence during the period of his disability worked in the Union s office an swenng telephone calls However in Emerson Electric Co v NLRB 650 F 2d 463 (3d Cir 1981) the US Court of Appeals for the Third Circuit in enforcing the Board s Order found that there was no basis for the Boards decision that A&S benefits can be withheld for the period after the employ ees actively participated in the strike or showed public support therefore and the court thus modified the Board s Order accordingly 77 In view of the foregoing and it having been found that the Respondent unlawfully withheld accident and sick ness benefits from employees referred to in this deci sion 78 it is recommended that the Respondent be or dered to pay each of them whatever accident and sick ness benefits were due them from January 8 1980 79 to 77 There the court stated at 474 Obviously the employer need not continue to pay S and A bene fits once the employee is no longer disabled Active participation in strike activity may be telling or even presumptive evidence of ces sation of disability However whether such activity in fact reflects the end of the disability period may depend on the nature of the ac tivity and the physical demands of the particular employees job Such details can be resolved in the compliance proceeding On the other hand use of the mere expression of public support for the strike by a disabled employee such as one still in the hospital as the basis for termination of benefits is inherently destructive of the em ployee s section 7 rights Accordingly the Board s decision to end benefits on the basis of active participation or public support for strike activity cannot stand It is internally inconsistent with the Board s own rationale in this case It vanes from the Board s policies as set out in previous Board decisions and frustrates effectuation of section 7 rights 78 Bobby R Dugger Larry S Eckelstafer Darel R Elmore Law rence Eubanks Don A Farris Leonard M Hardison Donald H Hof Jr Daniel W Holliday Oran L Kelly Eston M Newton Bobby R Phipps Ida Pearl Williams and Forrest E Eddy 7e Concerning Forrest E Eddy his A&S benefits were discontinued on January 7 1980 therefore his benefits would be computed from Janu ary 7 rather than January 8 1980 the date of their recovery or to the date their benefits ex pired whichever comes first with interest 80 It having also been found that the Respondent unlaw fully reduced the retirement benefits of the employees re ferred to in this decision81 by failing to grant them pen sion service credit for the period of the strike where they were entitled to such credit pursuant to the Respondent s group pension plan it is recommended that the Respond ent be ordered to grant and credit each of them with pension service credit as provided for under this plan in cluding the period from January 8 1980 82 to the date of their recovery or the expiration of their A&S benefits as applicable CONCLUSIONS OF LAW 1 The Respondent Texaco Inc is an employer en gaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 Oil Chemical & Atomic Workers Internatioanl Union Local 5-217 is a labor organization within the meaning of Section 2(5) of the Act 3 On January 8 1980 the Respondent notified em ployees that accident and sickness benefits for bargaining unit members would be discontinued upon the com mencement of a lawful strike and thereby interfered with its employees rights under the Act in violation of Sec tion 8(a)(1) of the Act 4 On January 8 1980 83 and thereafter during the period of the strike the Respondent discontinued acci dent and sickness benefits for employees who were in the bargaining unit and who had been receiving said benefits prior to a lawful strike engaged in by other employees represented by Local 5-217 and by such conduct the Re spondent interfered with its employees rights to engage in protected concerted and union activities thereby vio lating Section 8(a)(3) and (1) of the Act 5 By failing and refusing to credit employees on acci dent or sick leave during the period of the strike with appropriate pension service credit although they were entitled thereto and solely because of the strike the Re spondent interfered with its employees rights to engage in protected concerted and union activities thereby vio lating Section 8(a)(3) and (1) of the Act 6 The Respondent did not violate Section 8(a)(3) and (1) of the Act by reducing the vacation benefits of the employees involved 7 The unfair labor practices found above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act [Recommended Order omitted from publication ] 80 The amount due to each employee would be lessened by any pay ments made to them and attributable to the A&S benefits due during this period that the Respondent subsequently paid to them There is some tes timony by Brown in the record that this was done concerning some of these employees 81 Fn 78 supra Concerning Eddy the applicable date would be Janu ary 7 1980 82 The date for Eddy would be January 7 1980 8' Regarding Forrest E Eddy his date would be January 7 1980