Gulf Oil Corp.

376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gulf Oil Corporation and Carroll Wayne Ibison and Ray Scheidecker and Norman Guido Cases 21- CA-19236-2 21-CA-19236-3 and 21-CA- 19311 October 19 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On November 19 1981 Administrative Law Judge George Christensen issued the attached deci Sion The General Counsel and the Charging Par ties filed exceptions and supporting briefs The Re spondent filed cross exceptions and a brief in sup port of the judges decision in response to the General Counsels and Charging Parties excep tions and in support of its cross exceptions The Charging Parties filed a brief in response to the Re spondent s cross exceptions and the Respondent filed a supplemental brief 1 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 briefs and has decided to affirm the judge s rulings findings 2 and conclusions as modified and to adopt the recom mended Order Since 1967 OCAW Local 1 128 (the Union) has represented certain hourly paid employees at the Respondents Santa Fe Springs California facility The January 8 1979 to January 7 1981 collective bargaining agreement contained a reopener provi sion It also preserved the Union s right to strike no earlier than January 8 1980 3 The Union in yoked the reopener clause agreement was not reached and the Union began a lawful economic strike on January 8 On commencement of the strike the Respondent suspended payment of sick ness and accident (S & A) benefits to eight employ ees who were receiving them at the time the strike began On March 29 the Respondent and the Union set tled the strike and executed a letter of agreement extending the collective bargaining agreement for 1 year and providing for increases in wages and ben efits In paragraph 7 the agreement further provid i The Respondent has requested oral argument The request is denied The record exceptions and briefs adequately present the issues and the positions of the parties 2 We agree with the judge s finding that the Board s jurisdiction in this proceeding is not preempted by the Employee Retirement Income Act of 1974 (ERISA) Pub L 93-406 88 Stat 829 (codified as amended) 29 US C § 1001 et seq See Gulf Oil Co 290 NLRB 1157 fn 4 (1988) in which the Board rejected this identical defense 3 All dates hereafter are in 1980 unless otherwise noted ed employees a one time lump sum payment as a subsidy for certain insurance premiums as sumed by the employees dunng the strike In ex change the Union agreed to withdraw its unfair labor practice charges law suits and grievances re lated to all benefit plans in recognition of Stipula tion No 1 of Supplemental Agreement dated Janu ary 8 1979 4 In a separate return to work agree ment the parties provided for cessation of the strike on March 31 and agreed as follows [T]he Union and Company agree to withdraw and/or cause to be dismissed with prejudice all civil actions unfair labor practice charges and grievances related to matters that arose during the strike It is agreed that no further civil actions unfair labor practice charges or grievances will be initiated by either party for activity which has occurred during the strike Pursuant to these agreements the Union with drew its February 4 charge alleging the Respond ent violated the Act by suspending S & A benefits during the strike On July 3 and 21 the Charging Parties individually filed the charges that led to the instant complaint The judge concluded that the Respondent did not violate Section 8(a)(3) and (1) of the Act by withholding S & A benefits during the strike The judge reasoned that under the collective bargaining agreement the benefits were not accrued and the Respondent was implementing a longstanding and well known interpretation of the 1979 supplemental agreements when it suspended S & A benefits during the 1980 strike Because the judge dismissed the complaint based on the Respondents interpre tation of the collective bargaining agreement he found it unnecessary to pass on whether the par ties strike settlement agreements were enforceable against the individual Charging Parties As explained below we hold that the complaint should be dismissed based on the strike settlement agreements which are enforceable against the indi vidual Charging Parties because they constituted an effective waiver by the Union of the affected employees entitlements to the S & A benefits at issue 6 4 The sickness and accident plan was among those covered by Stipula tion 1 8 Stipulation I Art IF provides as follows The Company and the Union agree that there shall be no stnkes or lockouts ansing out of the provisions of this Supplemental Agree ment during the term hereof In the event of a strike it is under stood and agreed that for the duration of such strike no employer or employee contributions shall be made to any benefit plan for stoking employees 6 For the reasons given in Gulf Oil Co 290 NLRB 1157 1157-1159 (1988) we find the S & A benefits were accrued and that Stipulation 1 of Continued 291 NLRB No 63 GULF OIL CORP 377 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 cause a collective bargaining representative may waive its individual members statutory rights to receive contractual benefits free from discrimina tion 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 The letter of agreement purported to settle all matters negotiated between the parties ' Among those issues was the Respondents administration of its employee benefit plans including the S & A plan at issue in this case Thus in return for the Union s relinquishment of all its existing claims with respect to employee benefits the Respondent provided a limited payment to all employees in cluding those who were sick or disabled during the strike for certain insurance contributions under the provision of the settlement entitled Lump Sum Payment In the return to work agreement the parties sup plemented and extended this clear resolution of the Union s claim asserted in the unfair labor practice charge it had already filed By their agreement to withdraw and/or cause to be dismissed with prej udice all civil actions unfair labor practice charges and grievances related to matters that arose during the strike the Union clearly intended to waive any possible contractual claim the Union or indi vidual employees might otherwise have to S & A benefits denied during the strike Thus we con clude that the parties settlement agreements estab lish that the Union clearly and unmistakably waived its sick and disabled employees rights to receive contractual S & A benefits during the strike the supplemental agreement did not clearly and unmistakably waive dis abled employees rights to receive S & A benefits during the strike In Gulf Oil Co supra at 1159 we found that strike settlement agree ments identical to those in the present case executed at the Respondent s facility in Toledo Ohio clearly and unmistakably waived disabled em ployees rights to receive contractual S & A benefits free from discrimi nation or coercion Given that we dismiss the complaint based on the Union s waiver of S & A benefits in the strike settlement agreements we find it unnecessary to address whether the Respondents interpretation of Stipulation 1 of the supplemental agreement was reasonable and arguably correct as found by the judge ° Member Cracraft would not rely on the zipper clause contained in the letter of agreement as evidence of the parties intent that individuals rights to S & A benefits were waived Finally for the reasons set forth in Energy Coop erative we shall give effect to these strike settle ment agreements which clearly and unmistakably waived the statutory right of individual employees to receive contractual benefits free from discnmi nation It effectuates the purposes and policies of the Act to give effect to a private settlement ami cably resolving a labor dispute where the Union was entitled 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 8 Accordingly we shall dismiss the com plaint ORDER The complaint is dismissed 8 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 Gordon A Letter Esq for the General Counsel Deborah 0 Cantrell of Houston Texas for the Re spondent Gregory G Kennedy Esq (Cantrell & Green) of Long Beach California for the Charging Parties DECISION GEORGE CHRISTENSEN Administrative Law Judge On March 3 and 4 1981 I conducted a hearing at Los Angeles California to try issues raised by a complaint issued on August 15 1980 1 based on charges filed on July 3 by Carroll Wayne Ibison in Case 21-CA-19236-2 Ray Scheidecker in Case 21-CA-19236-3 and a charge filed by Norman Guido (Charging Parties) on July 21 in Case 21-CA-19311 The three cases involve a common Respondent and common issues so they were consolidat ed for purposes of hearing and resolution The complaint alleged Gulf Oil Corporation (Gulf) violated Section 8(a)(1) and (3) of the National Labor Relations Act by suspending the Charging Parties sick benefits during a 1980 strike by their bargaining unit represented by Oil Chemical and Atomic Workers Inter national Union AFL-CIO Local 1-128 (OCAW or the Union) 2 Gulf moved for dismissal of Case 21-CA-19311 on the ground Guido s charge was filed and served more than 6 months after Gulf suspended its payment of sick benefits to him (citing Sec 10(b) of the Act) Gulf moved for dismissal of all three cases on the ground 1 The subject matter of the complaint is within the ex clusive jurisdiction of Federal and state courts under the terms of the Employee Retirement Income Security Act of 1974 29 U S C § 1132 (ERISA) i Read 1980 after further date references omitting the year 2 Relying on Emerson Electric Co 246 NLRB 1143 (1979) enfd as modified 650 F 2d 463 (3d Cir 1981) 378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The Charging Parties lack standing to or are es topped from seeking and securing sick benefits during the 1980 strike because the then effective Gulf OCAW agreement expressly provided payment of those benefits to bargaining unit employees were suspended during strikes 3 OCAW in the strike settlement agreement waived any right the Charging Parties may have had to seek and secure those payments Gulf also contended the Charging Parties supported the strike and because of that support are not entitled to recover sick benefits during the strike period at least from the time that support became evident (when they visited the picket line assisted the strikers etc) With respect to Emerson Gulf argues it is inapplicable The issues are 1 Whether Guido s charge was untimely filed 2 Whether the courts have exclusive jurisdiction over the subject matter of the complaint 3 Whether the Gulf OCAW agreement in effect during the strike was interpreted and applied as proved ing for the suspension of sick benefits during the 1980 strike 4 Whether OCAW waived whatever right the Charg ing Parties may have had to seek and secure sick benefits during the 1980 strike under the terms of the strike set tlement agreement 5 If the answer to either paragraph 3 or paragraph 4 or both is affirmative whether the alleged suspension agreement and/or the alleged waiver agreement warrant dismissal of the three cases 6 Whether the Charging Parties supported the strike and if so whether such support eliminated or limited their right to receive sick benefits for all or any portion of the strike period The parties appeared by counsel at the hearing and were afforded full opportunity to adduce evidence ex amine and cross examine witnesses argue and file briefs Briefs were filed by the General Counsel the Charging Parties counsel and Gulf's counsel Based on my review of the entire record 3 perusal of the briefs and research I enter the following FINDINGS OF FACT I JURISDICTION AND LABOR ORGANIZATION The complaint alleges the answer admits and I find at times material Golf was engaged in the business of pro ducing refining distributing and marketing petroleum products at a facility located in Santa Fe Springs Cali forma that it annually purchased and received goods and products at that facility from suppliers located outside California valued in excess of $50 000 that it was and is an employer engaged in commerce in a business affecting commerce and OCAW was and is a labor organization within the meaning of Section 2 of the Act 3 Certain errors in the transcript are noted and corrected II THE ALLEGED UNFAIR LABOR PRACTICES A Facts Gulf and OCAW have had collective bargaining rela tions at the Santa Fe Springs facility since 1967 when Gulf purchased that facility from Wilshire Oil Co Since 1967 the two have negotiated a series of collective bar gaining agreements All those agreements contained a standard provision' concerning the effect of a strike on various fringe benefit payments The last agreement Gulf and OCAW negotiated cov ering the Santa Fe Springs unit prior to the 1980 strike was executed on January 31 1979 for a 2 year term ex tending from January 8 1979 through January 7 1981 Under terms of an attached supplemental agreement cov ering employee benefit plans (including a plan called the Sickness and Accident Plan (the Plan) effective for the same 2 year term it was provided (in stipulation 1 art 1 F) The Company and the Union agree that there shall be no strikes or lockouts arising out of the prove sions of this Supplemental Agreement during the term hereof In the event of a strike arising out of any labor dispute other than one arising out of the provisions of this Supplemental Agreement during the term hereof there shall be no impairment or ab rogation of any employees rights hereunder how ever it is understood and agreed that for the duration of such strike no employer or employee contributions shall be made to any benefit plan for striking employ ees and no service credits shall be accured by such striking employees who are represented by the Union [Emphasis added ] During the 1978-1979 negotiations preceding the exe cution of the 1979-1981 Santa Fe Springs agreement 5 OCAW proposed the deletion of the language italicized above Gulf opposed its deletion and OCAW withdrew its proposal in settling the dispute In the supplemental agreement (stipulation 6) it was provided OCAW could open the basic agreement (not the supplemental agreement) by 60 days notice prior to January 8 1980 for the limited purpose of negotiating a general cents per hour increase-a fully paid uniform health care benefit package-and improvements in the vacation schedules It was further provided OCAW could strike in support of its proposals for changes in those three items January 8 1980 if negotiations were not concluded by then in a manner satisfactory to OCAW Attached to and included by reference in the supple mental agreement was a document entitled Gulf Oil Company-U S Santa Fe Springs-Plan for Sickness and Accident Assistance-As Revised January 8 1979 That plan provided * Standard is and has been part of all agreements between Gulf and OCAW on behalf of its affiliated locals at all Gulf facilities where OCAW represented bargaining units since 1950 S And similar agreements at other Gulf locations where OCAW repre sented employees GULF OIL CORP The plan is voluntary on Gulfs part and is with out cost to eligible employees Gulf paying the entire cost and of necessity reserving the right without prior notice to alter modify or terminate the plan Assistance to all eligible employees absent from work on account of accident or illness while not in line of duty and for accidents or occupational dis ease while in line of duty is provided in accordance with the following schedules and regulations Following the above the plan provided for a graduat ed schedule of benefits for employees with over 6 months of service unable to work due to accident or ill ness based on length of service at the time the disability commenced The benefits ranged from a minimum pay ment of 2 weeks at half regular pay less any state dis ability or workmen s compensation payment covering the same time period for employees with less than 2 years of service when disabled to a maximum of 12 weeks at full regular pay or 40 weeks at half regular pay with the same deductions for employees with over 10 years of service when disabled The plan also provided (sec 11) Assistance provided has no relation what ever to the determination of the amount of regular wages an employee will receive or to any terms of employment but is granted as a voluntary reward [sec 12] This plan shall not be construed as creating any binding obligations on Gulf to give or as giving anyone any enforceable right to disability assistance the right being hereby expressly reserved to grant or not to grant any such assistance in any cases as Gulf in its discretion sees fit The plan has been filed with the United States Depart ment of Labor as a qualifying plan under the terms of ERISA and with the United States Internal Revenue Service as a qualifying tax exempt employee benefit plan under the terms of the Internal Revenue Code Since the inception of collective bargaining relations between Gulf and OCAW covering Gulf employees within the bargaining unit represented by OCAW at Gulfs Santa Fe Springs facility (1967) and Gulf employ ees within OCAW represented bargaining units at other Gulf facilities the OCAW represented employees have engaged in several strikes (in 1969 1974 1975 and 1979) During each of those strikes (and strikes at other facili ties between 1950 and 1969) Gulf has notified the OCAW affiliate involved (including Local 1 128 at Santa Fe Springs) it was suspending sick and other benefit pay ments or contributions during the strike and did so with out protest pursuant to stipulation 1 (noted above) In late 1979 OCAW served appropriate and timely notice on Gulf under the language of stipulation 6 that it wished to negotiate adjustments in the three areas per mitted wage rates-the hospital/surgical/medical plan- and vacations When negotiations pursuant to that notice did not result in an agreement to its satisfaction OCAW notified Gulf it intended to call a strike in support of its proposals commencing January 8 Under the terms of the 379 1979-1981 agreements all terms other than those prove sions affected by the limited opener remained in full force and effect during the strike including those of stip ulation 1 and the plan However OCAW asserted Gulf was obligated to desist from its usual suspension of sick benefits under the plan during the strike 6 The strike began on January 8 Eight bargaining unit employees including the three Charging Parties were off work at the time due to illness or injury Ibison had been off work since October 1979 when he underwent brain surgery and was recuperating Scheidecker had been off work since September 1979 when he underwent surgery for a knee injury and was recuperating Guido was off work due to injuries he suffered in an auto acci dent shortly before the strike started At the time the strike started both Ibison and Scheidecker were receiv ing sick benefits from Gulf under the plan Guido had not yet received any sick benefits Ibison also was receiv ing weekly disability payments from the State of Califor nia and Scheidecker was receiving weekly workmen s compensation payments from Gulfs insurance carrier Guido received his first disability payment from the State after the strike started (on January 14) All three continued to receive their state or insurance carrier pay ments during the strike The strike ended on March 29 and the bargaining unit employees began reporting back to work on their respec tive shifts shortly thereafter The last (biweekly) payroll period prior to the strike began on December 30 and ended on January 13 during the week following the end of that payroll period Gulf turned over to an OCAW representative the paychecks due bargaining unit employees for the December 30-Jan uary 13 payroll period for distribution to OCAW s mem bers On or about January 18 Guido picked up his check at the OCAW strike trailer located just outside the plant His paycheck contained both pay due him for work (in cluding overtime) performed during the payroll period and a sick benefit payment Although the total was less than he expected Guido attributed the difference either to an error or miscalculation of the deduction from the sick benefit of the amount he was receiving in state dis ability payments Approximately 2 weeks later (on or about February 1)' Guido returned to the trailer and 6 In apparent reliance on the Board s December 19 1979 Emerson deci sion supra OCAW did not assert Gulf was obligated to desist from its usual practice under stipulation I of ceasing to pay its share of premium costs for continued coverage of bargaining unit employees during the strike under the hospital/surgical/medical plan nor to refrain from grant ing service credits for bargaining unit employees during the stoke under the pension plan Rather OCAW made arrangements for all bargaining unit employees including the Charging Parties to pay Gulfs share of the premium cost to the insurance carrier during the strike and the employ ees made the requisite payments and OCAW did not protest suspension of pension credits of all bargaining employees for the strike period once the strike exceeded 60 days in duration (the pension plan provided for suspension of credits only if the strike s duration exceeded 60 days ) While initially Guido testified he made his first visit to the trailer on or about January 13 to pick up his check he later corrected his testimo ny stating he confused the date of the check (Sunday January 13 the date the payroll period ended) with the date he picked up the check that he picked up the check on or about the day he normally received his paycheck for a previous pay period on the Thursday following the end Continued 380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD asked if the OCAW representative had a check for him for sick benefits during the subsequent pay period and was informed there was none there He then learned all sick benefits had been suspended effective January 8 In early February Gulf as it had during past strikes formally notified OCAW that pursuant to stipulation 1 (1) It had suspended sick benefits to bargaining unit em ployees effective January 8 and would resume payment of those benefits the day after the strike terminated (2) it had not made a February 1 payment towards the cost of premiums for the bargaining unit employees coverage under the hospital/surgical/medical plan and (3) if the strike lasted more than 60 days (which it did) bargaining unit employees would not receive pension plan credits for the strike period 8 Although OCAW made no protest over paragraphs (2) and (3) above 9 it filed a charge with Region 31 of the National Labor Relations Board (Region) alleging Gulf violated Section 8(a)(1) and (3) of the Act by suspending sick benefits during the strike About the same time OCAW authorized the payment of strike benefits to all its members whose sick benefits were suspended during the strike In accordance with its announcement Gulf suspended the sick benefits Ibison Scheidecker Guido and five other bargaining unit employees were receiving prior to January 8 All three Charging Parties were longstanding members of OCAW During the strike Ibison applied for and received two strike benefit payments ($50 per week) and Schedidecker applied for and received three Guido neither applied for nor received any strike benefits All the Charging Parties were in convalescent status during the strike all were aware of the strike from the day it started During the strike Guido visited the plant area OCAW was picketing on three occasions as noted above on January 18 to pick up a paycheck on Febru ary 1 to see if he had a second check and once more on or about February 15 to check the OCAW bulletin board at the trailer site regarding the status of negotia tions Scheidecker visited the picket area frequently during the strike he made his first visit the day picketing started on January 8 and several times each week there after until the strike terminated 10 On each occasion he checked into the status of negotiations and visited with friends On one occasion a picket asked him to fetch a hamburger and he complied on another occasion a picket asked him a question and he responded He at tended three meetings at the OCAW hall during the strike the first two to hear reports on the progress of ne gotiations and the third to hear a report on the tentative of the pay period (in this case Thursday January 18) He consistently tes tified he made his second visit 2 weeks after the date of his first visit which would place it at February i I credit Guido s corrected testimony and find he made his first visit on January 18 and his second visit on Feb ruary 1 8 As noted above the pension plan so specified 9 To the contrary OCAW made arrangements for its members to tender through OCAW to the insurance carrier the full premiums for February coverage including both Gulf's contribution and that due from each employee At least one of the Charging Parties testified one of the things he did when he visited the strike trailer dunng the strike was ar range for the payment of his premium for continued coverage 10 Scheidecker was a member of the OCAW committee which negoti aced the 1979-1981 agreement settlement and vote on whether to ratify it At the ratifi cation meeting he took the floor to oppose that section of the agreement in which OCAW agreed to withdraw its February charge over Gulf's suspension of sick bene fits during the strike but eventually decided to vote for the settlement Ibison made weekly visits to the picket area he visited the site the first time about January 12 or 13 On each visit Ibison checked into the status of nego tiations and visited with friends He also visited the OCAW hall On one visit to the hall a friend and neigh bor and OCAW member employed in the bargaining unit on strike asked Ibison to deliver to his home some bread OCAW had supplied him and Ibison complied on a second occasion the same friend asked him to pick up some sandwiches from a caterer and deliver them to the strike trailer for distribution to the pickets and he again complied None of the three were asked or assigned by any OCAW official to perform picket duty or other duties connected with the strike i i On March 29 Gulf and OCAW executed agreements providing for wage increases effective January 8 1980 and January 1981 extending the expiration date of the 1979-1981 agreement to January 7 1982 increasing Gulf's share of the premium cost for hospital/surgical/ medical coverage in two steps effective in April 1980 and January 1981 establishing a dental care plan by June 15 1980 and Gulfs payment of a portion of the premi um therefor establishing a sixth week of vacation for employees with over 30 years of service further provid ing Gulf would administratively handle the hospital/sur gical/medical coverage premium contribution for March 1980 that Gulf would make a single lump sum payment in varying sums depending on whether the recipients were covered by a dental plan by June 15 1980 and on whether Gulf made a hospital/surgical/medical contribu tion on their behalf that OCAW would terminate the strike effective at 4 59 a in on March 31 1980 that the bargaining unit employees would report for work at their first regularly scheduled shift starting after 5 a in on March 31 1980 that seniority would not be broken due to the strike and that The Union will withdraw its unfair labor practice charges law suits and grievances related to all benefit plans in recognition of Stipulation No 1 of Supplemental Agreement dated January 8 1979 that the Union would withdraw and/or cause to be dismissed with prejudice all civil actions unfair labor practice charges and grievances related to matters that arose during the strike and that no further civil ac tions unfair labor practice charges or grievances will be initiated by either party for activity which has occurred during the strike In compliance with that agreement OCAW withdrew its February 4 charge that Gulf violated the Act by sus pending sick benefits during the strike Guido was medically certified fit to return to work on April 14 and returned Ibison returned in May and 1 While the names of the three appeared on a picket roster prepared by OCAW for use during the strike the three never carved out the pur ported assignment undoubtedly the roster was prepared from a member ship list without regard to availability and adjusted when picketing began GULF OIL CORP 381 Scheidecker in July Gulf resumed paying sick benefits to all three from the date the strike ended (March 31) through the dates each returned to work As noted above Ibison and Scheidecker filed charges on July 3 alleging the suspension of their benefits during the strike was an unfair labor practice and seeking as a remedy an order for directing Gulf to make them whole by paying sick benefits to them for the strike period Guido filed the same charge for the same relief July 21 B Analysis and Conclusions 1 The 10(b) issue Section 10(b) of the Act provides an unfair labor prac tice charge must be filed and served within 6 months of the date the unfair labor practice alleged was committed Guido filed his charge on July 21 On July 22 the Region served on Gulf by registered mail a notice of the filing and a copy of the charge 112 Compliance with Sec tion 10(b) requires proof the unfair labor practice alleged was committed on or after January 22 Gulf contends that because the unfair labor practice al leged in Guido s charge (suspension of his sick benefit) was committed January 8 Guido s July 22 charge was untimely filed and served The General Counsel and Guido in response contend the 6 month period is tolled from the date Guido ac quired actual knowledge of the suspension rather than the date of the suspension13 and since Guido first became aware his sick benefits had been suspended within 6 months from the time he filed and served his charge his charge was timely filed and served I concur with the latter contention I have entered findings that Guido s first awareness of the benefit sus pension came on or about February 1 when he learned there was not a second benefit check available to him at the strike trailer mentioned it to a friend on strike and was informed the benefit was suspended from and after January 8 Since Guido s July 21 filing of the charge and its July 22 service of the charge on Gulf occurred within 6 months of his first (February 1) awareness of the sus pension I find his charge was timely filed within the meaning of Section 10(b) of the Act 2 The preemption issue Gulf argues OCAW on behalf of all bargaining unit employees including Ibison Scheidecker and Guido agreed in a series of collective bargaining agreements preceding the 1980 strike that sick benefits would be sus pended during strikes From that premise Gulf proceeds to a contention that because Congress placed within the Federal and state courts exclusive jurisdiction to deter mine whether a claim for employer withheld sick bene 12 Gulf admitted July 22 service of the charge in its answer to the complaint 12 Plumbers Local 40 (Mechanical Contractors Assn) 242 NLRB 1157 (1979) V M Construction Co 241 NLRB 584 (1979) NLRB v R 0 Pyle Roofing Co 560 F 2d 1370 (9th Cir 1977) NLRB Y Longshoremen ILWU Local 3 549 F 2d 698 (9th Cir 1977) NLRB v Allied Products Corp 548 F 2d 644 (6th Cir 1977) Communications Workers Local 1104 v NLRB 520 F 2d 411 (2d Cir 1975) NLRB v Shawnee Industries 333 F 2d 221 (10th Cir 1964) fits had ment the NLRB is barred from exercising ,funs diction over the Ibison et al claims Section 502(e) of ERISA indeed provides state and Federal courts shall exercise exclusive jurisdiction over claims by a participant or beneficiary in or of an ERISA covered plan to recover benefits due to him under the terms of the plan to enforce his rights under the terms of the plan or to clarify rights to future rights under the plan and in the preamble that it was Congress intent in enacting ERISA to protect the interests of par ticipants in employee benefit plans and their beneficiaries by providing for appropriate remedies sanctions and ready access to the courts It is further true a pro cedure is set forth in the plan for the filing and process ing of employee claims over Gulf's denial of sick benefits under the plan However Section 10(a) states the Board is empow ered to prevent any person from engaging in an unfair labor practice [listed in Sec 8] affecting com merce This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement law or otherwise and that (Sec 1(a)) it was Congress intent in enacting the NLRA to prescribe the legitimate rights of both employees and employers in their relations to provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other Gulf counsel was unable to cite any decisions support ing its contention the cases counsel cited i a and the Ian guage of section 514(d) of ERISA 15 in fact indicate the contrary The two statutes (ERISA and NLRA) address differ ent subjects under differing criteria and the language of section 514(d) of ERISA when coupled with that of Section 10(a) clearly indicate Congress neither intended nor enacted an ouster of Board jurisdiction over the unfair labor practice allegations of these cases I there fore deny Gulf's motion to dismiss these actions on the ground their subject matter has been preempted by ERISA 3 The alleged agreement for suspension of benefits during strikes and alleged waiver agreement Since the 1967 inception of collective bargaining rela tions between Gulf and OCAW at the former s Santa Fe Springs facilities 16 Gulf and OCAW have interpreted and applied the language of article 1 F of stipulation 1 of the 1979- 1981 supplemental agreement as contained in the 1979 agreement its predecessor agreements and agreements between Gulf and OCAW at other facilities as providing for the suspension during strikes of sick benefits hospital/surgical/medical benefits 17 and pen 14 Malone v White Motor Corp 435 U S 497 ( 1978) Bonin Y American Airlines 621 F 2d 635 (5th Cir 1980) Air Line Pilots v Northwest Airlines 627 F 2d 559 (D C Cir 1980) '5 Nothing in this title shall be construed to alter amend modify in validate impair or supersede any law of the United States or any rule or regulation issued under any such law 16 And dunng the terms such relations have existed between Gulf and various OCAW affiliates at other Gulf facilities where employees were and are represented by OCAW Unless the affected employee or OCAW assumed payment of the requisite premium 382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lion benefits (credits)18 of both active and disabled bar gaining unit employees In view of that longstanding and uniform interpreta tion and application of the provision I find and conclude at the time of the 1980 strike there was an agreement in effect between Gulf and OCAW that the parties inter preted and applied as suspending the rights of all bar gaining unit employees to sick benefits during strikes 19 With respect to the alleged waiver agreement it is clear on March 29 OCAW agreed in the strike settle ment agreement to withdraw its February 4 charge filed on behalf of the Charging Parties and all other bargain ing unit employees disabled during the strike wherein it sought payment of sick benefits to them for the strike period and further agreed to refrain from filing any simi lar charge in the future in recognition of Stipulation No 1 of the Supplemental Agreement (the provision re ferred to in the preceding discussion) I find by that agreement OCAW expressly reaffirmed its agreement that stipulation 1 expressly provided for the suspension of sick benefits during strikes and so rec ognizing waived its right on behalf of those of its mem hers who were disabled during the strike to seek that benefit through an unfair labor practice proceeding 4 The effect of the suspension and waiver agreements The General Counsel and the Charging Parties con tend the two agreements are unenforceable as contrary to and in conflict with public law citing Section 10(a) and decisions of the Board and the courts There is con siderable support for the proposition that a union acting on behalf of employees it represented in exercise of its exclusive powers as their agent for collective bargaining purposes may not in the exercise of those powers com promise limit bargain away or waive those employees rights under the Act 20 There is also considerable authority for the proposition agreements policies or practices to which a union agrees or acquieces shall be honored even though such policies or agreements eliminate restrict compromise or waive rights of the affected employees under the Act or other public statutes 21 8 After 60 days of strike 8 While I recognize one might interpret the literal language of the provision as excluding bargaining unit employees disabled during the strike from its application by classifying them as nonstrikers (the language of the provision limits its coverage to striking employees ) I find the contracting parties interpretation and application of the provision (and OCAW s attempts to eliminate it in the 1979 negotiations) clearly show their agreement on the inclusion of both disabled and active bargaining unit employees within the definition of striking employees as those words were employed in the provision 20 J i Case Co v NLRB 321 U S 332 (1944) National Licorice Co v NLRB 309 U S 350 (1940) NLRB v Radio Officers 347 U S 17 (1954) Magnavox Co v NLRB 415 US 322 (1974) Machinists Local 743 v United Aircraft Corp 337 F 2d 5 (2d Cir 1964) Lerwill v Inflight Motion Pictures 582 F 2d 507 (9th Cir 1978) NLRB v Emerson Electric Co supra Textron Inc 257 NLRB 1 (1981) 2 Emporium Capwell Co v Western Addition Community Organization 420 US 50 (1975) Boys Market v Retail Clerks Union 398 U S 235 (1970) NLRB v Rockaway News Supply Co 345 U S 71 (1953) (no strike agreements) NLRB v Electra Vector 539 F 2d 35 (9th Cir 1976) (em ployee loss of yearly bonus because not on active payroll because on strike on requisite dates) Illinois Bell v NLRB 446 F 2d 815 (7th Cir The differing results in the two lines of cases appear to turn on whether the employer action under the policy practice or agreement was discriminatorily motivated or inherently destructive of employee rights or interests under the Act 22 In this case it is evident both Gulf and OCAW from inception of their collective bargaining relations have treated sick benefits as the plan expressly states as a reward or discretionary benefit unrelated to and there fore not an accrued from and not payable to any bar gaining unit employees during strikes It could reason ably be held the alleged benefit has been nonexistent during the entire history of Gulf OCAW collective bar gaining relations and warranting the dismissal of the cur rent action 23 Several factors present in the Emerson case on which the General Counsel and the Charging Parties relied are not present in this case The Board and the Third Circuit in Emerson placed considerable emphasis on Emerson s sudden announcement during the negotiations immediate ly before the strike that it was going to cut off the sick benefits it was then providing a substantial number of bargaining unit employees if the actively employed mem bers of the bargaining unit went on strike in support of their demands The Board and the circuit concluded by that announcement that Emerson was attempting to coerce and intimidate the active employees into desisting from exercising their statutory right to strike for fear of economic retaliation against their disabled fellow em ployees Gulf made no such announcement in the pre strike negotiations Also in this case a currently effective agreement between Gulf and OCAW (stipulation 1) pro vided for the suspension of sick benefits during any strikes that occurred during its term there was no such agreement in effect between Emerson and the union rep resenting its striking employees On these facts there is no basis for a finding Gulf sought tried or intended to inhibit its actively employed bargaining unit employees from exercising their right to strike when after the strike was underway it announced it was as usual suspending all sick benefit payments during the strike in accordance with the language of stipulation I Not only do I find then that the proof 1971) NLRB Y Wilson Freight Co 604 F 2d 712 (Ist Cir 1979) (limita tions on shop stewards authority) Ekas v Carling National Brewery 602 F 2d 664 4th Cir (1979) King v Space Carriers 608 F 2d 283 (8th Cir 1979) (employee loss of relative seniority standing by agreement dove tailing seniority) Union News v Hildreth 295 F 2d 658 (6th Cir 1961) (employee loss of employment by agreement to hire of new crew replac ing current one) Bancroft Whitney Co 214 NLRB 57 (1974) Radioear Corp 214 NLRB 362 (1974) (employee loss of bonuses by union waiver or acquiescence while nonrepresented employees continue to receive) Quality Castings v NLRB 325 F 2d 36 (6th Cir 1963) (employee loss of profit sharing by tolling strike time in computing entitlement) Southwest ern Electric Power Co 216 NLRB 522 (1975) Kansas City Power & Light 244 NLRB 620 (1979) (employee loss of sick benefit during strike) Roe gelin Provision Co 181 NLRB 578 (1970) (employee loss of vacation credits for time on strike) Kimberly Clark Corp 171 NLRB 614 (1968) (employee loss of service credits for time on strike) Ace Beverage Co 253 NLRB 951 (1980) IPCO Hospital Supply 255 NLRB 819 (1981 ) (employ ee loss of vacation pay under language of vacation agreement) 2 NLRB v Great Dane Trailers 388 U S 26 (1967) NLRB v Brown 380 U S 278 (1975) Erie Resistor Corp v NLRB 373 U S 221 (1963) 23 Cf Ace Beverage supra GULF OIL CORP fails to establish the necessary motivation on Gulf's part I further find and conclude none of the strikers were in fluenced in the slightest in deciding to strike by Gulfs continuation of its mutually agreed on historical practice of suspending sick benefits during strikes The next question is whether the suspension was so inherently destructive of employee rights under the Act that the contractual interpretation and application should be deemed unenforceable under the line of au thorities cited above 24 Under the language of the plan which the parties in corporated by reference into the supplemental agree ment it was stated sick benefit payments were discre tionary on Gulfs part that they were neither a vested nor accrued benefit but a gift or reward on Gulfs part and that were not payable to any bargaining unit em ployee during a strike whether he became disabled before the strike and was absent from work when a strike started due thereto or whether he became disabled while a strike was in progress Prior to the Board s De cember 17 1979 Emerson decision the Board had no dif ficulty in finding sick benefit suspensions for all bargain ing unit employees during strikes were not so destructive of actively employed bargaining unit employees right to strike any practice to that effect had to be disallowed 25 I cannot find that Emerson changed that view in the ab Bence of a finding of discriminatory motivation 26 1 therefore find the long standing limitation of sick benefit payments to non strike periods falling alike in its impact on all bargaining unit employees whether supportive or nonsupportive of the strike active or disabled during the strike neither was intended nor did coerce or intimidate any of Gulfs employees represented by OCAW in the exercise of their right to strike in support of their de mands for new or improved contract terms and there fore was not inherently destructive of their rights under the Act On the basis of the foregoing I find and conclude Gulf did not violate the Act by implementing the long standing and well known interpretation and application of stipulation I of the Gulf OCAW supplemental agree ment during the 1980 strike to suspend all sick benefits during the strike including the sick benefits of the three Charging Parties In view of the foregoing I find it unnecessary to re solve the questions whether the poststrike waiver agree ment is unenforceable and whether the Charging Parties 24 See fn 20 2e Cf Southwestern Electric Co and Kansas City Power & Light supra 26 To so find would require a finding Gulf was so motiated when it negotiated the language of stipulaton I either during the 1979 or preced mg negotiations Such an inquiry is barred by Sec 10(b) of the Act 383 forfeited their possible right to sick benefits during the strike by their conduct in support of the strike during its duration or their receipt of strike benefits from OCAW during the strike Nor do I find it necessary to resolve the question whether the Charging Parties in this case seek a benefit OCAW, knowingly bargained away in 1967 and continued to bargain away through the 1979 negotia tions for the 1979-1981 duration of the supplemental agreement when OCAW withdrew its proposal for dele tion of the stipulation 1 suspension of sick benefits agree ment in exchange for substantial economic advances in other areas i e whether through the Charging Parties OCAW seeks a benefit it could not secure in previous nego iations CONCLUSIONS OF LAW 1 At all pertinent times Gulf was an employer en gaged in commerce in a business affecting commerce and OCAW was a labor organization within the meaning of Section 2 of the Act 2 Guido s charge was timely filed under the Act 3 The Board and the courts have concurrent jurisdic tion over the subject matter of these cases 4 Gulf's suspension of sick benefits during the 1980 strike was in accord with the practice policy and inter pretation Gulf and OCAW gave to the terms of stipula tion 1 of their 1979-1980 supplemental agreement which was in full force and effect during the 1980 strike 5 Gulf's application of the terms of the above prac tice policy and interpretation during the 1980 strike was neither intended to nor did coerce Gulf's actively em ployed bargaining unit employees who participated in the 1980 strike 6 Gulfs application of the terms of the above prac tice policy and interpretation during the 1980 strike was not inherently destructive of its actively employed bar gaining unit employees right to strike in support of their limited demands for contract improvements 7 Gulf did not violate the Act by applying the terms of the above practice policy and interpretation On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed27 ORDER The complaint is dismissed in its entirety 27 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all put poses