Texaco, Inc.

508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Texaco, Inc and Oil, Chemical, and Atomic Work ers International Union, AFL-CIO, Local 4-23 Cases 23-CA-8782 23-CA-8827 and 23-CA- 8854 October 31 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On November 16 1982 Administrative Law Judge Hutton S Brandon issued the attached deci sion The Respondent and the General Counsel filed exceptions and supporting briefs and the Re spondent filed a reply 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 briefs and has decided to affirm the judge s rulings findings and conclusions as modified and to adopt the recom mended Order as modified 1 The judge found and we agree that the Re spondent s announcement and unilateral termina tion of accident and sickness (A&S) benefit pay ments to employees on medical leave at the incep tion of a lawful economic strike violated Section 8(a)(1) (3) and (5) of the Act The judge predicat ed his 8(a)(3) violation on then applicable Board precedent in Emerson Electric Co 246 NLRB 1143 (1979) and his finding that the disabled employees had not enmeshed themselves in the strike In adopting these conclusions of the judge we do so on the basis of Texaco Inc 285 NLRB 241 (1987) which overruled Emerson Electric In Texaco the Board held that the question whether an employer violates Section 8(a)(3) or (1) by refusing to continue benefit payments to a dis abled employee on commencement of a strike will be resolved by applying the test for alleged unlaw ful conduct articulated by the Supreme Court in NLRB v Great Dane Trailers 388 U S 26 at 34 (1967) Under this test the General Counsel bears the burden of proving at least some adverse effect of the benefit denial on employees Section 7 rights The General Counsel can meet this burden by showing that (1) the benefit was accrued and (2) the benefit was apparently withheld on the basis of a strike I At that point the employer may defend its action by showing that it had a legitimate and substantial business justification for cutting off ben efits such as an explicit waiver by the union or the employers reliance on a nondiscriminatory con tract interpretation that is reasonable and arguably correct 2 If the employer proves business justifica tion the Board may nevertheless find that the em ployer has committed an unfair labor practice if the conduct is demonstrated to be inherently destruc tive of important employee rights or motivated by antiunion intent 3 As found by the judge the Union and the Re spondent have had a bargaining relationship for ap proximately 30 years with respect to two employee units (the main plant unit and the product control unit) at the Respondents plant and terminal at Port Arthur Texas The collective bargaining agreements covering each unit had been extended for 1 year and had a common expiration date on January 7 1982 Each contract incorporated by reference corporatewide company funded benefit plans including the A&S plan in issue here subject to all the provisions of the plan which will determine all the questions arising under and in connection with the plans The Respondents A&S plan provides financial benefits to employees on medical leave because of work related or nonwork related accidents or ill ness Under the plan eligibility for nonwork relat ed A&S benefits is one year of active continuous and exclusive service with the Company Once qualified employees become entitled to a graduat ing level of benefits based on past service begin ning with 4 weeks of full pay and 2 weeks of half pay after 1 year of service up to a maximum of 13 weeks of full pay and 39 weeks of half pay after 10 or more years of service In contrast employees suffering work related illness or injury are entitled to the maximum 13/39 week benefit regardless of length of service but subject to a deduction for workmen s compensation awards Rules governing administration of the A&S plan include these provi sions 3 In order to qualify for benefits under this Plan employees must if required present evi dence satisfactory to the Company showing that an absence is due to illness or accident within the meaning of this Plan 4 Illness or accident occurring when an em ployee is not on duty will not serve to dis qualify such employee for benefits under this Plan except where such illness or accident occurs while he or she is on (a) leave of absence granted for military service or (b) leave of absence granted for personal business or ' Texaco Inc supra at 244 Ibid 9 Ibid 291 NLRB No 86 TEXACO INC (c) layoff or (d) vacation However where an illness or accident occurs during vacation and the illness or inju ries continue beyond the date the employee is scheduled to return to work he or she will be entitled to the extent he or she is eligible therefor to benefits for absence beyond that date on account of such illness or injuries 14 The decision of the Company shall be final and conclusive with respect to every question which may arise relating to either the interpretation or administration of this Plan In January 1982 the Union and the Respondent were engaged in negotiations for successor con tracts On January 7 1982 the Union announced that the employees in the two units it represented would commence an economic strike the next day if the parties failed to reach agreement by the mid night expiration of their collective bargaining agreements Beginning at 9 p in that same day the Respondent met separately with union representa tives for each of the bargaining units to discuss or derly plant shutdown procedures in anticipation of the strike At these meetings the Respondent dis tributed documents entitled Employee Relations Procedures in Case of a Strike that outlined how the benefit plans would be handled at the beginning of the work stoppage The notice stated as follows with respect to A&S benefits 6 Accident and Sick (A&S) Benefit Plan Upon commencement of a strike all A&S benefits will be discontinued except in those cases involving industrial accident or injury A&S benefits will be continued on those em ployees who are disabled due to industrial injury until expiration of such benefits in ac cordance with the Plan s benefit schedule whichever comes first Decision will be reserved regarding the pay ment of A&S benefits upon termination of the strike for employees who become disabled during the strike and whose disability contin ues beyond the termination of the strike Decision will also be reserved regarding the resumption of A&S benefits which were dis continued 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 pay able in the absence of a strike The Union s attorney in the meeting involving the main plant unit protested that the language was contrary to the court s decision in Emerson Electric 650 F 2d 463 (3d Cir 1981) and served notice that 509 the Union would file unfair labor practice charges based on deletion of the nonoccupational A&S ben efits The Respondents attorney replied that the Union well knew its position and that the Respond ent was litigating about 12 cases involving that issue because it felt that the Board had erred in Emerson Electric 4 The following day the Union struck and the Respondent discontinued payment of the nonoccupational A&S benefits to those em ployees previously deemed eligible and already re ceiving such benefits We find the Texaco analysis of the Supreme Court s Great Dane test for unlawful conduct is ap plicable Applying the Texaco principles to the facts we find that the General Counsel has estab lashed a prima facie case of 8(a)(3) and (1) miscon duct For the Board has previously found with re spect to this identical benefits plan5 that nonoccu pational A&S benefits become accrued when em ployees meet the 1 year of continuous work eligi bility requirement And the Respondents cutoff of benefits here-because of the protected strikes- from employees deemed eligible and receiving ac crued A&S payments prior to the strike warrants the inference that the Respondents conduct was discriminatorily motivated Consequently the burden shifts to the Respondent to prove a legiti mate and substantial business justification 6 The Respondent here predicates its business justi fication on both an explicit union waiver and its own reasonable reliance on nondiscriminatory pro visions of its A&S plan The Respondent thus argues that its previously established practice at this location during earlier union strikes in 1969 1975 and 1980 of withholding nonoccupational A&S payments in reliance on sections 3 4 and 14 of the benefits plan constitutes an explicit waiver by the Union to obtaining or even bargaining over these benefit payments during a strike The Respondent explains its interpretation of sections 3 and 4 as permitting the withholding of benefits when employee absences may be due to reasons other than a disability (as during a strike) and plac ing the burden on the disabled employee to notify the Company that the continued absence is due solely to the disability In addition the Respondent asserts that the express language of section 14 * In the plant shutdown meetings the Respondent did not refer to any specific language in the contract or the A&S plan as the basis of its dis continuance of those benefits 5 Texaco Inc 285 NLRB 241 244 (1987) 6 The Respondent s principal defense for terminating these benefits is predicated on its argument that the Board should reinstate the pre Enter son Electric legal presumption that disabled union members are strikers especially here based on an offer of proof showing nearly 100 percent strike support by the union members For the reasons set forth in Texaco we find no merit in this contention 510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD clothes the Company with final and conclusive decisional authority concerning every question re lating to either the interpretation or administration of the benefits plan Thus according to the Re spondent the only purposes for holding prestrike meetings with the Union are to communicate its personnel needs for an orderly shutdown of the re finery and to explain how the Respondent would administer the employee benefits during the strikes We find that the foregoing is insufficient to es tablish a legitimate and substantial business justifi cation for termination of the A&S benefits for the following reasons 7 The entire evidentiary basis for the Respondents waiver by practice contention consists of testimony by Landry an official of the Respondent that the Company s action in 1969 of inserting section 6 which deleted nonoccupational A&S benefits during that strike 8 was aimed at pre venting continued employee abuses 9 and that the Respondent retained that same policy in 1975 (when it was lawful under the Board s then existing precedent in Southwestern Electric 216 NLRB 522 (1975)) During the 1980 strike the Union protested the cutoff of benefits and filed unfair labor practice charges 10 The instant proceeding arose from the Union s protest of similar action by the Respondent in 1982 It is clear from the foregoing that the Respond ent s practice of discontinuing A&S disability benefits during the previous three strikes is ambigu ous and did not establish any agreed on procedure In these circumstances we conclude that evidence of the Respondents practice falls far short of persuasively demonstrating a clear and unmistak able waiver by the Union We are similarly unpersuaded by the Respond ent s interpretation of sections 3 4 and 14 of the A&S benefits plan as being either reasonable or ar guably correct Section 3 merely permits the Re r As the Respondents prestrike statements referred only to its disagree ment with the Board s decision in Emerson Electric as the basis for dis continuing these benefits the above assertions appear to be nothing more than post hoc rationalization 8 There is no evidence pertaining to the type or amount of communica tion between the parties about or in response to the change in employee benefits at that time 9 Landry testified that a disproportionately higher number of employ ees went on disability leave for elective surgery or virus infections just prior to contract negotiations or expiration Landry promptly acknowl edged that A&S payments were not necessarily paid in such circum stances We note that such abuses could have been addressed specifically by changes in the language of terms and conditions of the A&S plans rather than by wholesale suspension of payments during strikes is Texaco Inc 290 NLRB 1181 ( 1988) In that case as in Texaco Inc 285 NLRB 241 supra the Board found that Respondents discontinuing A&S benefits on the basis of the strikes warranted the inference of dis cnminatory intent and violation o the Act The Board dismissed the complaint however after finding a clear and unmistakable waiver in the parties settlement agreements See Texaco Inc supra 285 NLRB 241 at 245-246 spondent to require an employee to present saris factory evidence that an absence was due to illness or injury in order to qualify for benefits As previ ously noted the employees here had already quali fled and were receiving benefits prior to the strike and we like the Board in Texaco Inc (285 NLRB 241 246-247) find that the plain language of sec tion 3 imposes no reporting requirement or proof that disability is the sole reason for absence from work Section 4 of the benefits plan enumerates specific conditions for employee disqualification from eligi bility for A&S benefits such as when an employee is on (1) a leave of absence for military service (2) a leave of absence for personal business (3) layoff or (4) vacation unless the disability extends beyond the vacation period The Board has previously found that section 4 does not preclude continued entitlement to disability benefits during a strike to anyone disabled prior to such a strike (Texaco supra at 247 ) Finally the Respondent argues that its decision to stop granting nonoccupational accident and sick ness payments during strikes is encompassed within its final authority relating to all matters of interpre tation and administration of its benefits plan It fur ther contends that because the benefits plan is in corporated in the collective bargaining agreement with the Union subject to the plan s provisions (including sec 14) the Union can voice no pro test over such interpretation or administration of the plan We find the Respondents interpretation of sec tion 14 likewise to be neither reasonable nor argu ably correct Clearly invocation of authority to in terpret or administer does not encompass authority to make substantive changes 11 We conclude from the foregoing that the Respondent has failed to prove a legitimate and substantial business justifica tlon for its termination of these benefits In the ab sence of such proof under Great Dane we find it unnecessary to determine whether the Respond ent s conduct was inherently destructive of em ployee rights In consequence of our finding that the Respond ent discriminatorily terminated A&S benefits we find in agreement with the judge that its prestrike announcement of the cessation of those benefits threatened and interfered with the employees Sec tion 7 rights, and thereby independently violated Section 8(a)(1) of the Act Furthermore we agree with the judge that the Respondent at the prestrike meetings gave insuffi dent notice to the Union of the impending changes i See Murphy Oil USA 286 NLRB 1039 (1987) TEXACO INC in the A&S benefits to enable any meaningful op portunity for bargaining Indeed the Respondent s position appears to be that the prestrike meetings were not even intended as bargaining sessions but merely for presentation of its personnel needs for an orderly shutdown and for explanation of how the Respondent would administer employee bene fits during the strike Thus the Respondents entire 8(a)(5) defense is grounded on its assertion that be cause of its prior practice and its final authority over administrative changes in the benefits plan these were not substantive changes and the Re spondent was therefore not obliged to bargain 12 Contrary to the Respondent because we have re jected its assertions that the Union had waived its bargaining rights or that the termination of an A&S benefit is a matter of mere interpretation or admin istration of the benefits plan within the meaning of section 14 thereof we adopt the judge s finding that the Respondents conduct constituted unilater al action without prior notification or bargaining and therefore violated Section 8(a)(5) and (1) of the Act 13 2 We affirm the judge s dismissal of the 8(a)(1) (3) and (5) complaint allegations based on the Re spondent s announcement and unilateral cancella tion of scheduled vacations at the commencement of the strikes but we do so in accordance with the Great Dane analysis set forth in Texaco 285 NLRB 241 and in Amoco Oil Co 285 NLRB 918 (1987) rather than for the reasons given by the judge The collective bargaining agreement in each unit provides for employee vacations initially on com pletion of 1 year of continuous service and thereaf ter the length of vacations depends on length of employee service The collective bargaining agree ment also incorporates the Company s vacation plan and provides that the terms of that plan should govern the administration of employee va cations Article VI section (A) of the vacation plan states in pertinent part A When Vacations Should Be Taken (1) Ordinarily vacations are not cumulative and shall be taken in the year in which due but the Company may in meritorious cases permit deferment When an Employee is per mitted to defer all or part of his or her vaca tion such deferment may be only until the fol lowing calendar year 14 12 In this context it is clear that any attempt by the Union to bargain over employee benefits during the strike would have been futile is Sherwin Williams Co 260 NLRB 1321 fn 2 (1982) 14 The Respondent uniformly granted employee requests to reschedule their vacations when for example they became ill shortly prior to their vacation period 511 (2) No particular time of the year is desig nated for vacations It is left to the discretion of the Company to arrange the time of vaca tion to best suit Employees convenience and least interfere with the Company s operations As far as practicable Employees wishes as to date of vacations will be considered however it must be recognized that no considerable number can be absent at one time Because the Respondents uniform practice is to schedule vacations for the following calendar year during November and December every employee entitled to a vacation had been scheduled for a spe cific vacation period by January 7 1982 when the Union announced its intention to strike In the sub sequent meetings on January 7 when the Union and the Respondent discussed plant shutdown pro cedures the Respondent distributed the document Employee Relations Procedures in Case of a Strike which stated in pertinent part 7 Vacations Employees on vacation when a strike com mences may continue on vacation status for the balance of the week in which the strike occurs subject to the vacation rules in effect at that time No other vacations will be granted during a strike and vacations scheduled to commence during the strike period will be rescheduled following termination of the strike In the shutdown meeting involving the main plant unit the Union s attorney stated that an unfair labor practice charge would be filed with re spect to the cancellation of vacations because they were accrued benefits The Respondents attorney replied that the Board had previously upheld this Respondents procedure for handling vacations during a strike in a Board proceeding filed by em ployee Willie Bennett 15 The Union thereupon commenced striking on January 8 1982 and the Respondent proceeded to cancel all employee va cations for the period of the strike 16 In applying the Great Dane analysis we note ini tially the parties agreement that vacations are ac crued benefits and that their cancellation ( in reali ty postponement) was clearly based on the strike The Respondent nevertheless argues that its canceling vacation benefits during the strike was justified by the plans contractual language permit ting company discretion to arrange vacations at times of least interference with company oper is Texaco Inc 179 NLRB 989 (1969) referred to as Texaco (Bennett) 16 The record indicates that employees other than sinkers had their va cations canceled during the strike 512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ations The Respondent further points to its ap proximately 30 year practice (from 1945) of con sistently interpreting and exercising its authority in this manner with union acquiescence except for the individually filed Texaco (Bennett) litigation as constituting a waiver by the Union of any bargain ing rights over the cancellation and postponement of vacations during a strike We find the Respondents reliance on the assert ed contractual language for taking this action to be reasonable and arguably correct 17 The cancella tion/postponement of vacations is consistent with the Respondents interest in minimizing mterfer ence with its operations as referred to in the vaca tion plan and is specifically supported by the plan s statement that no considerable number [of employees] can be absent at one time We further find its uninterrupted 30 year practice of canceling vacations during strikes has evolved into a term and condition of employment between the parties i e the parties consistent administration of the va cation provision over this 30 year period has en trenched the treatment of vacation scheduling under circumstances such as those present in this case On this basis we find that the Respondent has met its burden to establish that it had a legiti mate and substantial business justification for can celing vacation benefits during the strike Finally as we find that the cancellation of vaca tions during a strike is in reality only a postpone ment and not a total denial of the employee benefit we conclude that the cancellation was not inher ently destructive of employee rights We accord ingly conclude that the Respondents announce ment and cancellation of scheduled vacations here constituted no discrimination or change in terms and conditions of employment and did not violate Section 8(a)(1) (3) and (5) See Amoco Oil Co 285 NLRB 918 (1987) REMEDY Having found that the Respondent has engaged in certain unfair labor practices we will order the Respondent to cease and desist and to take certain affirmative actions designed to effectuate the pole cies of the Act Having found that the Respondent unlawfully discontinued payments under its A&S benefit plan to the named employees and any other employees in the units involved who were similarly affected we will order the Respondent to make them whole for the loss of those benefits for the duration of 17 In exercising its discretion to defer vacations during the period of the strike we observe that the Respondent exercised this discretion in a nondiscriminatory manner and canceled vacations for represented and un represented employees their disability with interest as provided in New Horizons for the Retarded 18 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent Texaco Inc Port Arthur Texas its offs cers agents successors and assigns shall take the action set forth in the Order as modified 1 Substitute the following for paragraphs 1(a) and (b) (a) Announcing to its employees that on com mencement of a lawful strike it would discontinue paying accident and sickness benefits to employees entitled to or receiving those benefits (b) Discontinuing benefits under its accident and sickness benefit plan for employees because of a lawful strike when such employees are eligible for coverage under the plan 2 Substitute the attached notice for those of the administrative law judge MEMBER CRACRAFT concurring I agree with my colleagues that the Respondent did not violate Section 8(a)(3) of the Act by post poning striking employees accrued vacation bene fits for the strike s duration The Respondent proved reliance on a reasonable and arguably cor rect interpretation of its vacation plan that was in corporated into its collective bargaining agreement with the Union Further like my colleagues I would dismiss the 8(a)(5) allegation in the com plaint related to the Respondents administration of employee vacation benefits during the strike but not for the reasons given by the majority Contrary to my colleagues I do not believe that the Re spondent s reasonable and arguably correct inter pretation of its vacation plan evolved into a term and condition of employment Rather I would dis miss the 8(a)(5) allegation because the facts present us with a mere contract dispute The Respondents vacation plan is incorporated into the parties collective bargaining agreement Article VI section (A) of the vacation plan gives the Respondent discretion to arrange the time of vacation to best suit employees convenience and least interfere with the Company s operations The Respondent contends that the vacation plan gives it total discretion to arrange the time of em 18 In accordance with our decision in New Horizons for the Retarded 283 NLRB 1173 ( 1987) interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 US C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) TEXACO INC 513 ployee vacations including postponing already scheduled vacations in case of a strike The Re spondent cites a 30 year history of postponing va cations during strikes to support its contention i The General Counsel argues that the vacation plan provision relates only to the Respondents discre tion to initially schedule vacations and can in no way be extended to privilege the Respondent to re schedule vacations because of strike activity In NCR Corp 271 NLRB 1212 (1984) the Board held that in cases involving contract inter pretation when there is no evidence that the re spondent acted out of animus toward the union or in bad faith or that the respondent was seeking to undermine the union the Board will not attempt to determine which of two equally plausible contract interpretations is correct See also Atwood & Morrill Co 289 NLRB 794 (1988) and Thermo Electron Corp 287 NLRB 820 (1987) I note that there is no evidence that the Re spondent s actions resulted from bad faith or animus toward the Union or that the Respondent was seeking to undermine the Union Rather the actions were based on the Respondents plausible interpretation of the vacation provision cited above In my opinion however our finding that the Respondents interpretation is reasonable and arguably correct for purposes of deciding the 8(a)(3) allegation does not preclude a finding that the Union s interpretation is also a plausible inter pretation of the vacation plan provision We are presented with two equally plausible contract inter pretations I would not attempt to determine which is correct Accordingly I would find no 8(a)(5) violation t Unlike my colleagues I am unwilling to characterize the Respond ent s practice of postponing vacations as the parties administration of the vacation provision APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT announce to our employees that on commencement of a lawful strike that we will discontinue paying accident and sickness benefits to employees entitled to or receiving such benefits WE WILL NOT discontinue benefits under our ac cident and sickness benefit plan for employees be cause of a lawful strike when such employees are eligible for coverage under the plan WE WILL NOT refuse to bargain with Oil Chemi cal and Atomic Workers International Union AFL-CIO Local 4-23 as collective bargaining representative of our employees in the two units listed below by unilaterally without timely notice to or bargaining with the Union changing the acci dent and sickness benefit plan covering employees in the units by discontinuing such benefits for eligi ble employees All employees at the Port Arthur Plant and Port Arthur Terminal except office technical and supervisory employees electrician units production control units and guards watch men and gatemen All employees of the product control labors tories excluding clerical administrative crafts men technical professional and supervisory employees WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL make whole the employees named below and other employees in the units who are similarly situated for accident and sickness benefit payments due them from the time it was withheld until their recovery from disability the expiration of their eligibility for such benefits under the terms of the benefit plan with interest Anderson Booker Arledge Maxie Baker Charles Baker Harold Ballard Kenneth H Balsamo Russell E Barrios Lawrence Berard Gary J Bernard Clement R Bland Carolyn Boettger Robert Boley Bobby J Booker Edward Bowles Ray T Braquet John C Broussard Charles 0 Brown George R Brumfield Stanley Bryson Lurher B Buchanan James C Butaud Ellicott Carter Benny Clestine Ronald King Ivan Lafferty Robert F Lanclos Simon J Lege James L Lisotta Penny R Long George R Jr Louis Dennis Loyacano Phillip S Lunceford Mancie Lyon John B Mahaffey Nicky M Manning Gerald Marks Kenneth Martin Dennis D Martinez David McCarthy Richard McCray Raymond E McDowell Kirk E McMillian Leon Metoyer John E Mixon Henry R Jr Moore, Carl Morgan Vernon E 514 Coffey Glenn A Comeaux Charles R Cone William Cortez Johny Crain Kenneth Davis Preston J DeCuir Kirk J Ducote Jimmy Dunn Thomas DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Morvant Mantew Murrell Michell D Nietsche Raymond R Palermo Charles R Paul Delores Priddy Rowland Quebedeaux, Alvin P Quibodeaux Eugene Ramirez David W Eichler Michael S Rattray Cecil V Ellis Tim Reynolds Jerry L Foreman Ezra Jr Riche Terry F Garcia Rodolfo Rowry Charles E Gay Robert Sanders Davis Goodman Carl E Scoggins Myril Griffin Herman D Silva Paul P Hansen Chester E Jr Slone Ricki B Heider Nancy L Steward Edgar Hensley Lemuel C Teal Darrell II Henton, Elias Jr Tebo Joseph Howard, Aubrey J Thibodeaux Alten J Hufstetler Redman WThompson William C Hughes Bobby Tocl•et Gerald Humble Jack A Tyler Leo P January Ben Jaras Daniel H Jellison William H Jordon Brenda Joseph Lawrence Kelley Monty J Kethley Hulette E Vasquez Richard Waldrep Brenson R Walker Timothy A Walters Donna M Willis Voile J Wright F C Young David S TEXACO INC Robert S Breaux Esq for the General Counsel David R Shed Esq of Houston Texas for the Respond ent M Diane Dwight Esq (Provost Umphrey Dolye & McPherson) of Port Arthur Texas for the Charging Party DECISION STATEMENT OF THE CASE HUTTON S BRANDON Administrative Law Judge This matter was heard in Port Arthur Texas on August 5 6 and 12 1982 i The charge in Case 23-CA-8782 was filed by Oil Chemical and Atomic Workers Internation al Union AFL-CIO Local 4-23 (the Union) on January 15 alleging violations of Section 8(a)(1) of the National Labor Relations Act (the Act) by Texaco Inc (the Company or Respondent) The charge in Case 23-CA- 8827 was filed by the Union February 19 alleging viola tions of Section 8(a)(1) (3) and (5) of the Act by Re spondent based on Respondents actions with respect to the main plant unit of employees represented by the Union while the charge in Case 23-CA-8854 was filed i All dates are in 1982 unless otherwise specified by the Union on March 19 alleging violations of Section 8(a)(1) (3) and (5) of the Act by Respondent with re spect to Respondents conduct affecting a bargaining unit composed of product control laboratory employees also represented by the Union Complaints are based on the charges issued February 19 March 10 and April 28 re spectively An order consolidating cases for hearing was issued by the Acting Regional Director for Region 23 of the National Labor Relations Board (the Board) on April 28 2 The issues presented are whether Respondent (a) threatened employees in violation of Section 8(a)(1) of the Act by announcing on the eve of the strike by the employees that those employees who were receiving ac cident and sick (A&S) benefit payments as a result of nonwork related accidents or illnesses would have those benefits discontinued on commencement of the strike (b) violated Section 8(a)(1) (3) and (5) of the Act by unilat erally without bargaining with the Union discontinuing the A&S benefit payments to the strikers (c) violated Section 8(a)(1) of the Act by announcing on the eve of the strike that scheduled vacations of bargaining unit em ployees would be canceled and (d) violated Section 8(a)(1) (3) and (5) of the Act by unilaterally canceling scheduled vacations of employees as a result of a strike On the entire record including my observations of the demeanor of the witnesses and after due consideration of the arguments by all parties I make the following FINDINGS OF FACT I JURISDICTION Respondent a Delaware corporation maintains offices and plants in various States of the United States includ ing a place of business at Port Arthur Texas known as the Port Arthur Plant and Terminal where it is engaged in the manufacturing refining sale and distribution of petroleum products The Port Arthur Plant and terminal is the only facility involved in this proceeding During the 12 months preceding issuance of the complaint Re spondent in the course and conduct of its business oper ations manufactured refined sold and distributed prod ucts valued in excess of $50 000 which products were shipped from its Port Arthur plant and terminal directly to points outside the State of Texas Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act The complaints alleged Respondent admitted and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act 2 On an unopposed motion of the General Counsel made at the hear mg the instant cases were further consolidated with Case 23-CA-8923 involving Respondent and Office and Professional Employees Interna tional Union Local No 66 AFL-CIO a case involving an identical issue The General Counsels motion included the further unopposed pro vision that Case 23-CA-8923 be severed for decision by the administra tive law judge Consistent with the General Counsels motion by Order dated November 2 1982 Case 23-CA-8923 was severed from the re maining cases for decision TEXACO INC 515 II THE ALLEGED UNFAIR LABOR PRACTICES A Material Facts The Union has been the collective bargaining repre sentative of certain of Respondents employees in at least two units at the Port Arthur facility for several years Respondent and the Union have negotiated successive collective bargaining agreements covering these units 3 The complaints alleged and Respondent admitted that Respondent and the Union were parties to a collective bargaining agreement in each unit effective for the period January 8 1979 through January 7 1981 In 1981 it was extended to January 7 1982 Negotiations on a new collective bargaining agreement between Respondent and the Union to succeed the one expiring on January 7 began in November 1981 It is clear that negotiations were not successful and no agree ment was reached to extend the old collective bargaining agreement with respect to either unit In separate negoti ations on January 7 for each unit the Union indicated its intention to strike on January 8 4 In subsequent meetings on January 7 representatives of Respondent and the Union again met to discuss plant shutdown procedures in anticipation of the strike At this time Respondent pre sented the Union with a copy of a notice distributed to employees which outlined the manner in which benefit plans would be handled at the beginning of the work stoppage Pertinent provisions of the notice are as fol lows 6 Accident and Sick (A&S) Benefit Plan Upon commencement of a strike all A&S bene fits will be discontinued except in those cases in volving industrial accident or injury A&S benefits will be continued on those employees who are dis abled due to industrial injury until medically re leased by their doctors or until expiration of such benefits in accordance with the Plan s benefit sched ule whichever comes 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 termina tion of the strike Decision will also be reserved regarding the re sumption of A & S benefits which were discontin ued at the beginning of the strike for those employ 3 One such unit referred to as the main plant unit is composed of the following employees All employees at the Port Arthur plant and Port Arthur terminal except office technical and supervisory employees electrician unit production control units and guards watchmen and gatemen The other unit involved in this proceeding the product control unit con sists of the following All employees of the product control laboratories excluding clerical administrative craftsmen technical professional and supervisory em ployees As already indicated Respondent and the Union have engaged in collec tive bargaining with respect to these two groups over a period of years and I find each bargaining unit to be an appropriate unit for collective bargaining purposes * See synoptic minutes of meeting between the parties G C Exhs 2 and 3 ees 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 7 Vacations Employees on vacation when a strike commences may continue on vacation status for the balance of the week in which the strike occurs subject to the vacation rules in effect at that time No other vacations will be granted during a strike and vacations scheduled to commence during the strike period will be rescheduled following ter mination of the strike One of the Union s attorneys at the shutdown meeting involving the main plant unit Diane Dwight noted to Respondents representatives that the language in the notice regarding the A&S benefit plan would appear to be in conflict with the court s decision in Emerson Elec tric 650 F 2d 463 (3d Cir 1981) enfg as modified 246 NLRB 1143 (1979) cert denied 455 US 939 (1982) Dwight added that she was putting the Company on notice on behalf of the Union that it would be subject to an unfair labor practices charge if the language in the notice regarding the benefits plan was not changed She further added that a charge would be filed also with re spect to the announcement regarding the vacations be cause they were accrued benefits Respondents answer was voiced by Respondents senior attorney who was present J M Mitchell who stated that Texaco s proce dure for handling vacations during a strike was chal lenged earlier in a Board case filed by employee Willie Bennett and the Company s position had been sustained by the Board 5 Mitchell further related that there were about 12 A&S cases that are on appeal from previous strikes and the Company was litigating A&S issues fully because they felt the Board had erred in the Emerson Electric case 6 The 1979-1981 collective bargaining agreement cover ing the units involved here incorporated Respondent s accident and sick benefit plan subject to all provisions of the plan The plan' provided for benefits payable to em ployees because of absence from work due to illness or accident It further provided a graduated schedule of benefits for nonoccupational illnesses and injuries tied to the employees s length of service Benefits payable for occupational illnesses or injuries were not dependent on employees completed years of service Eligibility for benefits for nonoccupational illnesses or injuries required 5 See Texaco Inc 179 NLRB 989 (1969) To avoid confusion with other Texaco cases cited herein this case will hereafter be referred to as the Texaco (Bennett) case 6 For other cases of Board litigation involving Respondents denial of A&S benefits to strikers at other of its locations as well as at the Port Arthur plant and terminal see Texaco Inc 260 NLRB 1192 (1982) 259 NLRB 1217 (1981) 259 NLRB 408 (1981) There appear to be at least three decisions of NLRB administrative law judges pending decision by the Board on the same issues These are JD-(SF)-261-81 (Richard D Taplitz) JD-(SF)-219-81 (Jesse Kleiman) and JD-(SF)-62-81 (Maurice M Miller) 7 Exh 2 516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD completion of 1 year of active continuous and exclusive service with the Company by an employee According to the credible and uncontradicted testimony of Darrell Landry Respondents superintendent of employee rela tions at the Port Arthur facility benefits under the plan do not accumulate from year to year if an employee is not sick or disabled With respect to vacations the collective bargaining agreement in each unit extended vacations to employees based on length of service after completion of 1 year s continuous service for eligibility purposes The length of the vacation period granted was further dependent on the length of service The collective bargaining agree ment further provided however that the administration of the provisions on vacations would be governed by the vacation plan of the Company then in effect Vacations under the plan were not considered cumulative although in certain instances involving meritorious cases permis sion might be granted for deferment of the vacation Under the plan no particular time of the year was desig nated for vacations and it was left to the Company s dis cretion to arrange the time of the vacation to best suit the employees convenience and least interfere with the Company s operation However employees wishes con cernmg the date of vacation were considered The plan asserted that It must be recognized that no consider able number can be absent at one time and that it may not always be possible to grant vacations at exactly the desired date 8 However Landry testified that in actual ity it was Respondents practice to schedule vacations for the following calendar year during the months of November and December Accordingly as of January 7 virtually every employee in the plant who was entitled to a vacation was in fact scheduled for a specific vaca tion time during the year 1982 Landry also testified that it was Respondents policy since 1969 to discontinue A&S benefits of those employ ees suffering from nonoccupational injuries or illnesses during the time of a strike On the other hand injuries resulting from industrial accidents are paid during a strike since there is no eligibility period for industrial in juries and Respondent has always treated industrial acci dents differently The policy on not paying A&S benefits for nonoccupational illnesses and injuries was changed according to Landry because Respondents experience was that employees were beginning to take advantage of the A&S plan immediately prior to strikes and Respond ent felt the plan was being abused It is undisputed that the Union struck on January 8 The complaint in Case 23-CA-8827 which involved the main plant unit alleged and Respondent admitted that 137 employees in the main plant bargaining unit were re ceiving accident and sick benefits from Respondent prior to the commencement of the strike 9 Similarly the com 8 R Exh 1 8 At the hearing the complaint in Case 23-CA-8827 was amended to include four additional employees George R Brown John B Lyon Rowland C Priddy and Alten J Thibodeaux and to delete one employ ee Alvin J Guidry With respect to vacations the complaint involving the main plant bargaining unit alleges and Respondent by its answer admits that 155 employees were scheduled for vacation during 1982 It is further alleged that Respondent canceled those vacation benefits by plaint in Case 23-CA-8854 involving the product control unit named four employees as receiving A&S benefits at the commencement of the strike The complaints in both cases alleged that about January 8 or shortly thereafter Respondent discontinued the A&S benefits to the em ployees named in the complaints because of the occur rence of the strike Landry in his testimony acknowl edged that Respondent did in fact implement its policy of not paying A&S benefits for nonoccupational injuries or illnesses during the course of the strike to employees who were otherwise eligible for such benefits prior to the beginning of the strike With respect to vacations the complaint involving the main plant bargaining unit alleges and Respondent by its answer admits that 155 employees were scheduled for vacation during 1982 It is further alleged that Respond ent canceled those vacation benefits because of the strike which began January 8 A similar allegation is contained in the complaint in Case 23-CA-8854 regarding product control employees and it was alleged that six employees were scheduled for vacation in 1982 and Respondent canceled the vacation of those employees because of the strike January 8 1982 The strike was still in progress at the time of the hear ing but the Charging Party s brief asserts the strike ended on August 23 B Positions of the Parties Relying on the Board s decision in Emerson Electric Co supra the General Counsel and the Charging Party contend that Respondent violated Section 8(a)(3) of the Act in canceling A&S benefits for nonoccupational inju nes and illnesses for employees eligible for such benefits prior to the strike and at a time Respondent could not be assured such employees would support the strike It is further contended that since the termination of such ben efits was unlawful the announcement by Respondent prior to commencement of the strike that such benefits would be terminated independently violated Section 8(a)(1) of the Act The General Counsel and the Charg ing Party further argue that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally terminating the A&S benefits for the strikers who were otherwise due such benefits without bargaining with the Union as a col lective bargaining representative in either of the units on the matter With respect to withholding of vacation pay to the strikers the General Counsel citing Stokely Van Camp Inc 259 NLRB 961 (1982) argues that there was no provision in the collective bargaining agreement that clearly authorized Respondents conduct in unilaterally announcing the canceling of prescheduled vacations The argument proceeds from its premise that because the va cations had already been scheduled prior to the strike cancellation of the vacations that had accrued to the strikers under the collective bargaining agreements pe reason of the strike that began on January 8 A similar allegation is con tamed in the complaint in Case 23-CA-8854 regarding product control employees and it was alleged that six employees were scheduled for va cation in 1982 and Respondent canceled the vacations of those employees because of the strike on January 8 1982 TEXACO INC nalized them for their participation in the strike Thus under the doctrine of NLRB v Great Dane Trailers 388 U S 26 (1967) the General Counsel urges that Respond ent s failure to pay the vacation benefits when they were due as scheduled was discriminatory and inherently de structive of employees rights in violation of Section 8(a)(3) and (1) of the Act Moreover the General Court sel further urges that because the cancellation of the va cations was done unilaterally without bargaining with the Union in either unit such cancellation constituted a further violation of Section 8(a)(5) of the Act Finally the General Counsel argues that Respondents announce ment distributed to the Union s bargaining committees on January 7 regarding the termination of accident and sick benefit payment to stnkers as well as an announcement of the cancellation of vacation benefits to the strikers threatened its employees with unlawful actions thereby independently violating Section 8(a)(1) of the Act Respondent devoted a substantial portion of its brief to its argument that Emerson Electric supra as decided by both the Board and the court was unsound unreason able and in effect bad law Moreover Respondent would distinguish Emerson Electric contending that Re spondent could reasonably expect the people receiving A&S benefits for nonoccupational problems prior to the strike would support the strike because Respondent had encountered some eight prior strikes at the Port Arthur plant and terminal that had received unanimous employ ee support There had been no showing of such prior ex perience in Emerson Electric Respondent argues Further Respondent would distinguish Emerson Electric on the premise that there was no showing there as it was here that Respondent operated during the course of the strike and that work was theoretically available for all striking employees who wanted to cross the picket line Thus Respondent claims its actions were not discriminatory or inherently destructive of employee rights In connection with its defense of the cancellation of scheduled vacations Respondent argues that its actions constituted nothing more than a postponement of sched uled benefits or a rescheduling of vacations and that its actions in this regard were fully justified under the Board s decision in Texaco (Bennett) supra Respondent would distinguish the Stokely Van Camp case cited by the General Counsel on the basis that in the cited case the employer had not established as Respondent had here a past practice of postponing vacations at the outset of the strike Further there was apparently no right under the collective bargaining agreement consid ered in Stokely Van Camp for the employer to reschedule vacations while the instant case Respondent contends that it had that right Finally Respondent asserts that in Stokely Van Camp union animus was shown to exist whereas in the instant case no such evidence was pre sented With respect to the 8(a)(5) allegations Respondent argues that its notice to the employees regarding the can cellation of A&S benefits and the scheduled vacations do not actually amount to changes Rather they deal purely with administrative nonsubstantive aspects of the respec tive A&S and vacation plans and simply constitute Re spondent s interpretation of such plans Finally Respond 517 ent argues that the Union had acquiesced in the past im plementation of Respondents policies regarding with holding of A&S benefits to stnkers and cancellations of vacations at the outset of strikes Such acquiescence amounts to a wavier of any 8 (a)(5) rights that the Union might have had to bargain with the Company over what Respondents brief called purely administrative proce dure C Analysis and Conclusions 1 Termination of A&S benefit pay at beginning of strike In the Emerson Electric case the Board reversing an earlier policy announced in Southwestern Electric Power Co 216 NLRB 522 (1975) held that an employer violat ed Section 8(a)(1) and (3) of the Act by terminating acci dent and sick benefits to employees who were physically unable to work at the beginning of a strike simply be cause other employees of the employer went out on strike In its decision the Board stated that employees who are receiving disability benefits at the beginning of the strike had a Section 7 right to refrain from declaring their position on the strike during the time when they were medically excused from work Thus the Board stated that an employer could no longer require disabled employees to disavow strike actions during their sick leave to receive accident and sick benefits they had been receiving prior to the strike 10 The Board went on to hold however that although disabled employees need not affirmatively disavow the strike action they could not participate in the strike without running the risk of forfeiting any disability benefits prospectively Thus it concluded that an employer could be justified in terms nating disability benefits to employees who were unable to work at the start of the strike if it could show that it had acquired information that indicated that the employ ee whose benefits were to be terminated had affirmative ly acted to show support for the strike Absent affirma tive evidence in this regard the disabled employees were entitled to A&S benefits for the length of their illness or disability By terminating the A&S benefits to disabled employees at the beginning of the strike without know ing whether they actually supported the strike the em ployer violated Section 8(a)(1) and (3) of the Act the Board held The Board s decision in Emerson Electric was enforeced by the Third Circuit although the court modified the remedial provision of the Board s order to extend the direction of benefits to disabled employees even after the employer acquired information to the effect that the relevant individuals had affirmatively acted to show their support for the strike and so long as the employees were in fact disabled for work The court s reasoning for the modification was that since the A&S benefits were accrued benefits the disabled em ployee was entitled to such benefits for the duration of 10 This is to be distinguished from the situation to which accident and sick benefits are denied to strikers who suffer accidents or sickness during the course of the strike Denial of benefits in those situations has been held lawful by the Board See Kansas City Power & Light Co 244 NLRB 620 (1979) 518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD his disability regardless of whether he participated in the strike Notwithstanding Respondents extensive arguments re garding the wisdom of Emerson Electric it remains viable Board law Indeed it has been applied in recent cases in volving Respondent at other locations 11 Moreover a decision of Administrative Law Judge Richard D Ta plitz involving an almost identical factual situation in volving Respondents termination of disability benefits to certain individual employees during a 1981 strike at the same facility involved here and in which the judge found violations of Section 8(a)(1) and (3) of the Act by Re spondent based on Emerson Electric is presently pending before the Board All of Respondent s arguments ad vanced here against Emerson Electric appear to have been considered by the Board in the earlier Texaco cases decided by it and cited herein Thus no extensive analy sis is necessary here I am bound by Board precedent in the prior Texaco cases unless and until that precedent is overruled by a decision of the United States Supreme Court See Regency at the Roadway Inn 255 NLRB 961 (1981) Lenz Co 153 NLRB 1399 1401 (1965) Iowa Beef Packers 144 NLRB 615 (1963) enfd in part 331 F 2d 176 (8th Cir 1964) Accordingly I find that Respondent in discontinuing A&S benefits to employees at the com mencement of the strike whose entitlement to such bene fits occurred prior to the beginning of the strike and only because Respondents employees generally engaged in the strike on and after January 8 violated Section 8(a)(1) and (3) of the Act 12 The Board was not faced in Emerson Electric or in any prior Texaco cases cited here with the issue presented in the instant case of whether Respondents termination of the A&S benefits constituted a violation of Section 8(a)(5) of the Act It is quite clear however that Section 8(d) of the Act provides that the duty to bargain collec tively includes meeting at reasonable times to t onfer in good faith with respect to wages hours and other terms and conditions of employment Disability plans providing for accident and sick benefits have been held to be mandatory subjects of bargaining under Section 8(d) McDonnell Douglas Corp 224 NLRB 881 (1976) An employer with an outstanding bargaining obligation may not unilaterally alter or change an existing employee benefit that is regarded as a mandatory subject of bar " See the cases cited in fn 6 12 As earlier indicated the complaint in Case 23-CA-8827 as amended by the General Counsel at the hearing alleged that 137 named employees in the main plant group had been entitled to or were receiving A&S benefits prior to the commencement of the strike At the hearing there appeared to be some confusion with respect to all the named employees in this group and the group number was modified by further stipulations of the parties at the hearing See C P Exh 1 Accordingly I have listed in Appendix B all those employees named in the complaint who were shown by evidence by admission or by stipulation to be entitled to re ceive A&S benefits prior to the commencement of the strike and who were denied such benefits by Respondent s termination of the A&S bene fit plan applicable to nonoccupational accident and illnesses on com mencement of the strike The complaint in Case 23-CA-8854 involving product control labora tory employees named four employees who were receiving A&S benefits prior to commencement of the strike At the hearing however it ap peared only two employees in this complaint were affected by Respond ent s action found unlawful above in ceasing to pay disability payments because of the strike These two employees are also listed in Appendix B gaining without prior notice to or bargaining with the employee bargaining representative See Curley Printing Co 169 NLRB 251 257 (1968) In the case sub judice Respondent clearly did not advise the Union in either of the units involved in this proceeding until 3 hours before the strike of its intentions regarding termination of A&S benefits There was no opportunity to bargain about the matter and indeed Respondent indicated that it was not subject to bargaining When Respondents attorney ad vised the Union s attorney when questioned about the matter that its action with respect to the termination of the disability benefits was in accordance with its position taken in other Texaco cases before the Board and the cir cuits courts any further efforts by the Union to bargain on this subject would have been clearly futile And while Respondent had previously unilaterally im plemented changes in the A&S plan to the extent that it ceased A&S payments to employees on the occurrence of earlier strikes it could not be said that the Union waived its right to bargain on the subject when it pro tested Respondents action when it announced and indi cated its intention to file charges on the matter Thus notwithstanding the Union s failure to object on prior oc casions the Union expressly objected here and referred to the illegality of Respondents action Under these cir cumstances it cannot be said that the Union was waiving any rights to bargain concerning the subject A prior failure to protest an unlawful act does not constitute a waiver for all time of a right to protest continuing un lawful conduct Accordingly I find that Respondent by unilaterally discontinuing A&S benefits without notice to or bargaining with the Union on the matter violated Section 8(a)(1) and (5) of the Act as alleged See Sherwin Williams Co 260 NLRB 1321 (1982) 13 Since Respondents action in canceling A&S benefits for nonoccupational accidents and illnesses was discrimi natory and violative of Section 8(a)(3) and (1) its an nouncement that it would take such action clearly consti tuted a threat to employees Such threat I conclude interfered with their right to engage in activities under Section 7 of the Act Accordingly I find Respondent violated Section 8(a)(1) of the Act Accordingly I find Respondent violated Section 8(a)(1) of the Act in this regard as alleged in the complaint in Case 23-CA-8782 2 Denial of A&S benefits in individual cases In light of Respondents admission that it had denied A&S benefits to employees named in the complaints14 on commencement of the stnxe the General Counsel did not produce evidence regarding the individual employ ees Respondent however called three employees named in the complaints to establish under Emerson Electric supra whether they had affirmatively supported the 13 Respondent through the testimony of Landry admitted that there was no specific provision in the A&S benefit plan that specifically allows Respondent to discontinue the plan in cases of nonoccupational accident or illnesses at the advent of a strike There was thus no specific prove Sion authorizing Respondents action so that Respondents reliance on the provisions in the collective bargaining agreement incorporating the terms of Respondent s A&S benefit plans are no defense to Respondent here The names of such employees were supplied to the General Counsel by Respondent at the investigation stage of the case TEXACO INC strike during their period of disability As concluded below the Respondent failed in this regard The Charg ing Party called two employee witnesses in rebuttal who also testified regarding their individual situations These individual situations are discussed below a Benny Carter Benny Carter an employee of Respondent for 13 years and a member of the Union suffered a kidney stone attack at work on January 4 He testified that a security guard of Respondent took him to the hospital He was hospitalized for 6 days and subsequently was released for return to work on January 12 He testified that in keeping with Texaco s policy of filing medical certifi cates 15 for A&S benefits he requested that his doctor file such a certificate with Respondent and to his knowledge his doctor had done so Carter s testimony was straightforward and honestly delivered Moreover it was uncontradicted and I credit it Under the principles of Emerson Electric an employer may not lawfully terminate disability benefits of employ ees disabled and entitled to such benefits at the start of a strike unless it can show that the employee affirmatively acted to show public support for the strike Here there was no such evidence occurring prior to Carter s medi cal release for work on January 12 16 A discriminatee is not entitled to recover A&S benefits for longer than the period of his disability Texaco Oil Co 259 NLRB 408 (1981) I conclude that since Carter was released for work on January 12 his entitlement to A&S benefits ended on that date b John Calvin Braquet Braquet an employee of Respondent for 31 years and a member of the Union became ill with a bronchial in fection and missed his first day of work on January 4 His doctor put him on medication lasting 14 days and ad vised him not to return to work until he had exhausted the medication Braquet had his doctor complete a Texaco medical form that he had from a prior illness and mailed the completed form back to Respondent around January 6 The strike began on January 8 but Braquet testified he did not picket until around January 25 Braquet s testimony was convincing and uncontradict ed I credit it and find that he was unlawfully denied A&S benefits for the period of his disability from Janu ary 4 to 18 c Russell E Balsamo An employee of Respondent for about 10 years Bal samo suffered wisdom tooth problems and as a result he missed work beginning about January 5 or 6 He visited his doctor on January 6 and an appointment was made to 15 Under Respondents A&S plan the first day of nonoccupational ill ness or injury is not paid On the third day of absence due to such an illness or injury medical certificates are forwarded to the employee to be completed and returned to show the nature and extent of the employees illness or injury 16 Carter did not engage in strike activity for the Union until January 21 519 have the teeth extracted the next day Through no fault of his own the appointment was rescheduled to January 7 and then rescheduled again to January 8 He missed work on January 7 and the strike intervened on January 8 His teeth were extracted on January 8 Balsamo testi feed that following the extractions while he received no specific release from the doctor he believed that he was physically able to return to work about a week after his teeth were extracted He did not engage in any picketing or other overt strike support until January 16 Balsamo s testimony in the foregoing respects was not contradicted and is credited I find that he was unlawful ly denied A&S benefits for the period of his disability from January 6 to 15 17 d Redman Hufstetler The Charging Party called Redman Hufstetler in the rebuttal stage of the hearing apparently to contradict Re spondent s Exhibit 4 which is a listing of employees suf fering a nonindustrial injury or illness who were absent from work on the day prior to the strike but who subse quently submitted medical certificates showing their date of release to return to work Hufstetler was listed as being able to return to work 2-3 weeks after December 17 Following the testimony of Carter Braquet and Balsamo the Gen eral Counsel and Charging Party moved in effect that Respondent be precluded from calling individual employees and interrogating them with respect to their disability or enmeshment in the strike without first making a threshold showing or even asserting a claim that such employ ees enmeshed themselves in the strike prior to the termination of th it disability Respondent opposed the motion although Respondents coun sel admitted that it had no affirmative threshold evidence regarding en meshment of specific individuals in the strike prior to the end of their disability periods Rather Respondent contended that it was entitled under Emerson Electric supra to litigate in this proceeding precisely when a person enmeshed himself in the strike Respondent contended it had no way of lawfully ascertaining stoke enmeshment without calling the individual employees as witnesses The motion of the General Counsel and Charging Party was granted and Respondent called no further employee witnesses While it is quite true that in the Texaco cases considered by the Board subsequent to Em erson Electric issues regarding strike enmeshment of individual employees prior to the expiration of their disability period was litigated the require ment that Respondent assert some threshhold evidence of individual en meshment does not mean that enmeshment could not have been appropn ately litigated here However judicial economy and the interest of the economy of the hearing process as a whole demands that there at least the issues be established before the expenditure of time in the taking of possibly useless evidence Indeed that is the purpose of pleadings Here Respondent demonstrated only that it wanted to engage in a fishing expe dition to perhaps develop issues Respondent offered not even a claim that the employees named in the complaints affirmatively acted to show public support for the strike before termination of their disabilities Under these circumstances and because there was no claim that the testimony of any of these employees would throw light on the issue of the legality of the general termination of A&S benefits issues with respect to wheth er certain of the alleged discrimmatees cut short their entitlement for A&S benefits under Emerson Electric can best be resolved in the compli ance stage of this proceeding when a backpay specification and an answer can as pleading more clearly define the issues Moreover I do not accept Respondents contention that it could not lawfully determine identity of strike supporters prior to the hearing So long as appropriate safeguards are followed Respondents interviews with the employees could well have been conducted See Johnnie s Poultry Co 146 NLRB 770 (1964) enf denied on other grounds 344 F 2d 617 (8th Cir 1965) This is not to suggest that interviews are the only method through which Respondent could have legitimately secured the pertinent information of strike involvement by those employees otherwise entitled to disability benefits 520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 23 1981 Hufstetler testified however that he had sur gery on his foot and was absent from work about De cember 23 through the beginning of the strike He fur ther testified that during his absence he had his doctor complete a medical certificate for him which he mailed to Respondent While he did not know what the doctor had said on the certificate he testified he was specifically released by his doctor to return to work on January 23 He supported that testimony with a copy of the doctor s release itself 18 Based on the foregoing testimony of Hufstetler which I credit I find that A&S benefits were unlawfully with held from Husfstetler during the period of his disability from commencement of the strike to January 23 e Charles G Baker The Charging Party called Baker as a witness in rebut tal to establish the omission of Baker in Respondents Ex hibit 6 which is a list of persons named in the complaint in Case 23-CA-8827 as having been unlawfully denied A&S benefits but who were in fact granted A&S benefits because their injuries resulted from plant accidents Thus Baker an employee of Respondent in the production unit testified that he suffered an injury at work on No vember 14 He was hospitalized for a time but returned to work in mid December Apparently after suffering further from the injury that involved his back he saw another doctor on January 5 and 6 who referred him to still another doctor The second doctor prescribed treat ment and medical care from which he was released by the doctor to return to work on March 1 The doctor s release substantiating Baker s testimony was received in evidence 19 Baker testified he had received no A&S benefits fol lowing his second period of absence from work begin ping January 5 He also credibly testified that he had submitted a medical certificate from his doctor to Re spondent on the matter January 6 Baker was not specifi cally named in the complaint involving the production unit However he is a member of the class to which the complaint refers Thus while the complaint as amended named 137 employees it alleged that the denial of A&S benefits was unlawful regarding not only those named but also any and all other employes similarly situated Baker may well have been entitled to A&S benefits here even under Respondents policy of paying A&S benefits for plant injuries without regard to the strike It is also possible that its failure to pay him was inadvertent Given Respondents policy of denying A&S benefits to employees for nonoccupational accidents at the outset of the strike it is more likely and I conclude that Baker s failure to receive such benefits under the circumstances here was in accordance with a belief harbored by Re spondent that his absences were not related to a plant ac cident There was no evidence that Baker publicly sup ported the strike prior to his medical release for work Accordingly I conclude that he was unlawfully denied 8C P Exh 5 is C P Exh 6 benefits for the period of his disability from January 5 until March 1 20 3 Cancellation of scheduled vacations It is established that it is an unfair labor practice for an employer to deny vacation pay to strikers engaged in a lawful stnke21 while granting it to nonstrikers In NLRB v Great Dane Trailers 388 U S 26 (1976) the Supreme Court held such employer action is inherently destruc tive of employee rights and violative of the Act without regard to proof of specific antiunion motivation on the part of the employer However proof of antiunion moti vation is necessary to establish a violation of the Act when the discrimination is comparatively slight and the employer has come forward with evidence of legiti mate and substantial business justification An employer s assertion as a defense that it is not obligated to finance a strike against itself does not constitute a business justifi cation for withholding accrued vacation pay Seeburg Corp 192 NLRB 290 (1971) In the case sub judice there is no issue concerning whether vacation benefits had accrued to the employees based on the collective bargaining agreement in both units Indeed Respondent admitted that the employees named in the complaints were prior to the strike sched uled for specific vacation time during 1982 Their entitle ment to the vacations is therefore beyond dispute Only Respondents action in effect canceling the previously scheduled vacations is in issue In Texaco (Bennett) supra the Board found nondis criminatory and lawful conduct by Respondent that is practically identical to Respondents conduct alleged as unlawful here 22 Thus in that case Respondent at the advent of a strike announced that employees on vacation at the time the strike commenced could continue on va cation for the period scheduled (as opposed to continu ing for the balance of the week in which the strike oc curred as in the instant case) but that no other vacations would be granted during the strike and that vacations would be rescheduled at the termination of the strike After the strike started vacations were in fact canceled Advanced payments for vacation periods were required to be returned Subsequent to the strike vacations were rescheduled 23 and vacation pay computed at a higher 20 There appears to be other employees listed in the complaint who ap patently failed to receive benefits to which they were entitled not with standing the fact that their disabilities stemmed from plant accidents See R Exh 6 The Charging Party s brief concedes that some of these em ployees had received their benefits but not others As in the case of Baker it is reasonable to conclude that the otherwise unexplained failure of these employees to receive A&S benefits were attributable to Re spondent s confusion of them with rhos- discnmmatonly denied benefits for nonoccupational accidents and illnesses Accordingly since such con fusion resulted from Respondents unlawful actions I conclude such em ployees specifically Kenneth H Ballard William Cone Bobby Hughes Gerald Manning Kenneth Marks Carl Moore MynI Scoggins William C Thompson George R Brown and Rowland Priddy may appropriate ly be included in Appendix B 21 There is no contention by Respondent here that the strike was any thing other than lawful 22 Even the same Respondents location was involved 23 Respondent here also contends that consistent with past practice vacations will be rescheduled after the strike It is possible however that Continued TEXACO INC 521 rate in accord with an agreement reached with the Union regarding new rates The administrative law judge with the Board approval viewed the case as one involving scheduling of vacations rather than simply one of payment of accrued vacation pay He noted that the past practice had been (as the evidence shows it was here) that Respondent had under the vacation policy used its discretion to schedule vacations to interfere least with Respondent s production The judge concluded that while Respondent could not control employee absences due to a strike it was entitled under its contract with the Union and in accordance with past practice to control absences due to vacation That control could be accom plished not through complete cancellation but through rescheduling of vacations during the strike and while Re spondent was attempting to continue its operations The judge found Respondents conduct with respect to the vacations did not warrant an inference of unlawful moti vation and he found no evidence of specific unlawful motivation He found rather that Respondents actions had only a minor impact on the strike and did not signifi cantly discourage membership in the Union The Texaco (Bennett) case has not been specifically overruled by the Board It was inferentially distinguished in a somewhat similar case Seeburg Corp supra wherein the Board found a violation of the Act in an employer s conduct in failing to pay vacation pay during a strike The Board observed that it was not merely a case of re scheduling of vacations because under the collective bar gaining there was an option (not present in the instant case) that could be exercised providing for money to be paid in lieu of vacation Denial of the vacation pay therefore could not be justified Subsequently in Detroit Edison Co 206 NLRB 898 (1973) the Board found even in the presence of a contract clause like that in Cavalier the employer did not violate the Act by rescheduling the prescheduled 1 day vacation of a striker There the Board citing Texaco (Bennett) noted that nothing had been taken away from the striking employee that he had merely been required to postpone a vacation day As indicated by the Cavalier case however when there is no independent evidence of union animus the language of the collective bargaining agreement and the employers past practice is critical in determining the issue whether denial of accrued vacation pay to striking employees is lawful See also G C Murphy Co 207 NLRB 579 (1973) Wallace Metal Products 244 NLRB 41 (1979) In arguing the existence of a violation by Re spondent here the General Counsel and Charging Party contend Respondent was not contractually authorized to deny the strikers accrued vacation pay and that it other wise had no legitimate justification for its actions in this regard As already noted the General Counsel relies heavily on the Board s decision in Stokely Van Camp supra In Stokely Van Camp the employer on notice from the union of its intent to strike canceled all sched uled vacations and directed the withholding of vacation payment benefits The collective bargaining agreement following termination of the strike some agreement might be reached with the Union regarding a grant of vacation pay to employees in lieu of granting them time off as has also been done in the past that set forth the eligibility requirements for employees had provided that the vacations may as far as possible be scheduled with the mutual agreement of the em ployees and the company A management rights clause in the agreement reserved to the employer the right to schedule production The agreement did not provide for pay in lieu of actual vacation as was the situation in Cav alter supra The Board found however that the agree ment did not specifically authorize Respondents cancel lation of the prescheduled vacations Moreover the Board in finding a violation by the employer in cancel ing the vacations concluded that the employer had done so before it was clear the strike was actually going to occur that the employer s past practice did not justify its actions and that there was independent evidence of union animus on the part of the employer that estab lished that its motive in canceling the vacations was pre textual In making its findings the Board paid little heed to the employers characterization of its actions as a re scheduling of vacations and observed that however perceived the result of Respondents action was that 82 employees who struck did not receive scheduled vacs tion benefits that had accrued under the terms of the ex pired collective bargaining agreement Unquestionably the result of Respondents action here was the same as that in Stokely Van Camp However I believe the instant case is distinguishable and is con trolled by the Texaco (Bennett) case which the Board did not specifically overrule in Stokely Van Camp Here there was no direct evidence of union animus in cancel ing the vacations as there was in Stokely Van Camp Fur ther Respondent did not announce the cancellation of vacations and vacation benefits until it was quite clear that a strike would take place Indeed the announce ments were made during the course of shut down pro cedure discussions with the Union Here too there was clear precedent for Respondent to cancel the vacations both under the language of the vacation plan incorporat ed in the collective bargaining agreement and under long past policy and practice 24 The collective bargaining agreement as in Texaco (Bennett) specifically provided that the administration of the agreements provision on vacations25 would be governed by the vacation plan of Respondent then in effect That plan26 gives Respondent discretion to arrange the time of vacation to best suit the employees convenience and least interfere with Re spondent s operations Obviously as noted by the judge in Texaco (Bennett) during a strike the fewer people absent from work for any reason the easier it is for an employer to continue its operation in the face of the strike The exercise of discretion to postpone and re schedule vacations to a poststrike time is clearly a move consistent with Respondents right under the agreement to arrange vacation to least interfere with its operations 24 This policy and practice were apparently followed at other of Re spondent s locations Thus in Texaco Inc 260 NLRB 1192 (1982) the same announcement regarding vacations was made However the cancel lahon or rescheduling of vacations was not there attacked and was not considered by the Board 25 Art VIII secs 1 & 2 25 R Exh I 522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Stokely Van Camp is also distinguishable from the in stant case for still another reason In that case the em ployer in announcing the cancellation of vacations did not indicate they would be rescheduled after the strike Here Respondent did There was no basis for employees to perceive that they would lose their vacations by virtue of their participation in the strike As in Detroit Edison supra nothing has been taken from the strikers Only their vacations have been postponed With respect to the past practice in canceling and re scheduling vacations at the outset of a strike it need only be noted that the Board itself in Texaco (Bennett) consid ered Respondents past practice and found it not unlaw ful Respondents action in the instant case was no differ ent from its earlier practices dating back to 1945 at the Port Arthur Plant and Terminal While Respondent s policy was challenged by an employee in Texaco (Ben nett) the Union had never specifically challenged it before the events giving rise to the instant proceeding The Charging Party asserts the present practice is dif ferent from the practice in Texaco (Bennett) because there Respondent allowed vacations in progress at the beginning of the strike to continue until completed whereas here Respondent allowed such vacations to con tinue only for the balance of the week in which the va cation occurred I find this to be a distinction without a difference Respondents cancellation of a vacation in progress was not shown to be more detrimental to the affected employees than a requirement imposed by Re spondent in Texaco (Bennett) that employees given ad vance vacation pay reimburse Respondent when the va cations were canceled at the beginning of the strike Yet the Board found no violation in Respondents reimburse ment requirement The Charging Party would also distinguish Texaco (Bennett) on the premise that in that case there was no evidence that the strikers were treated differently from nonstrikers whereas here certain salaried employees were allowed to take a vacation during the strike How ever the record does not show that any such salaried employees worked within the bargaining units involved here before or during the strike Thus any difference in treatment of them with respect to the granting or non cancellation of their vacations does not establish discrim ination against employees in the units here Considering all the foregoing including Respondent s past practices the discretion accorded Respondent under its vacation plan to schedule employee vacations to least interfere with its operation and the Board s earlier deci sion in Texaco (Bennett) finding lawful conduct by Re spondent that was identical to the conduct here I find that Respondent had a legitimate basis for its actions with respect to the cancellation of prescheduled vaca tions at the beginning of the strike Accordingly I find Respondent did not discriminate against its employees in violation of Section 8(a)(1) of the Act because of their involvement in the strike In view of its past practice in cluding its rescheduling of vacations after the strike I conclude as it was concluded in Texaco (Bennett) that Respondents actions had little impact on the strike did not discourage membership in the Union and was not in tended by Respondent to do either Because I have found that Respondents conduct with respect to canceling and rescheduling vacations was not unlawful it follows that its announcement regarding that action within a few hours before the strike did not inde pendently violate Section 8(a)(1) of the Act Moreover since Respondents actions with respect to vacations were consistent with its prior practices which in turn were based on its interpretation of its rights under the collective bargaining agreement it follows that Respond ent did not unilaterally change its vacation policy in vio lation of Section 8(a)(5) and (1) of the Act I so find III THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent set forth in section II above occurring in connection with the operations of Respondent described in section I above have a close intimate and substantial relation with trade traffic and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce THE REMEDY Having found that Respondent has engaged in unfair labor practices I shall recommend that it be ordered to cease and desist therefrom and to take certain affirma tive action designed to effectuate the polices of the Act Having found that Respondent unlawfully withheld payments under its A&S benefit plan to the employees listed in Appendix B I recommend that Respondent be ordered to make them and any other employees in the units involved here who were similarly affected whole for the loss of such benefits by payment with interest to each of them the sum of money equal to the amount he or she would normally have received under the A&S plan for disabilities occurring prior to the strike from the beginning of the strike on January 8 1982 until their re covery from disability 27 or the expiration of their eligi bihty for such benefits under the terms of the benefit plan whichever occurs first provided however that no such payments shall be due for periods subsequent to any employees active participation in strike activity or dem onstration of public support therefor 28 Interest is to be computed in the manner prescribed in Florida Steel Corp 231 NLRB 651 (1977) 29 27 When a date appears opposite the names of the employees listed in Appendix B such date reflects the specific period the employees entitle ment to accident and sick benefits ended during the strike as stipulated by the parties at the hearing or as otherwise found Appendix B omits the names of certain employees whom the Charging Party and Respondent stipulated were paid all of their accident and sick benefits prior to the hearing or who were initially ineligible for such benefits in any event The General Counsel in his brief indicated he did not oppose appropn ate omissions 28 The remedy provided here is consistent with the Board s remedy in Emerson Electric supra which was as indicated modified by the Third Circuit Court of Appeals In the Texaco cases considered by the Board cited supra the Board found it unnecessary to consider the court s mode fication of the Board s order in Emerson Electric inasmuch as the result in those cases would not have been affected 29 See generally Isis Plumbing Co 138 NLRB 716 (1962) TEXACO INC CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the act 3 The Union is the collective bargaining representa tive of a majority of Respondents employees in the fol lowing approppriate units which are units appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act All employees at the Port Arthur Plant and Port Arthur Terminal except office technical and super visory employees electricians unit production con trol units and guards watchmen and gatemen All employees of the production control laborato nes excluding clerical administrative craftsmen technical professional and supervisory employees 4 Respondent violated Section 8(a)(1) of the Act by announcing to its employees at the outset of the strike on January 8 1982 that it would discontinue paying acci dent and sick benefits to employees entitled to or receiv ing such benefits at the outset of the strike without regard to whether such employees actively participated in the strike or publicly demonstrated support therefor 5 Respondent violated Section 8(a)(3) and (1) of the Act by discontinuing benefits under its accident and sick benefit plan for employees at the outset of a lawful strike when such employees were eligible for coverage under the plan due to physical disability and prior to any show ing on their part that they affirmatively supported the strike beginning January 8 1982 6 Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally without notice to or bargaining with the Union changing the terms and conditions of employ ment of the employees in the units listed above by dis continuing payment of accident and sick benefits under the accident and sick benefit plan to those employees who were entitled to such benefits 7 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 8 Respondent did not violate Section 8(a)(1) of the Act by announcing to its employees that at commence ment of the strike on January 8 1982 prescheduled va cations would be canceled and did not violate Section 8(a)(3) and (1) of the Act by canceling at the commence ment of the strike prescheduled vacations for its employ ees named in the complaint 9 Respondent did not unilaterally without notice to or bargaining with the Union change the terms and con ditions of employment of employees in the units listed above by canceling prescheduled vacations at the outset of the strike and thus did not violate Section 8(a)(5) and (1) of the Act in this regard On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed3O so If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended ORDER 523 Respondent Texaco Inc Port Arthur Texas its offs cers agents successors and assigns shall 1 Cease and desist from (a) Announcing to its employees that on commence ment of a lawful strike it would discontinue paying acci dent and sick benefits to employees entitled to or receiv ing such benefits without regard to whether such em ployees affirmatively participated in the strike or public ly demonstrated support therefor (b) Discontinuing benefits under its accident and sick benefit plan for employees because of a lawful strike when such employees are eligible for coverage under the plan due to physical disability and such employees have not affirmatively participated in or publicly demonstrated support for the strike (c) Unilaterally without timely notice to or bargaining with the Union changing the accident and sick benefit plan covering its employees in the appropriate units by discontinuing accident and sick benefits for eligible em ployees (d) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Make whole those employees listed in Appendix B [omitted from publication] and other employees in the units similarly situated with interest for loss of accident and sickness benefits payments in the manner set forth in the remedy section of this decision (b) Preserve and make available to the Board or its agents upon request all records necessary to analyze the amounts due employees in the effectuation of this reme dial Order (c) On request bargain with the Union prior to institu tion of any change in the accident and sick benefit plan or any other term or condition of employment applicable to the employees in the units involved here (d) Post at its Port Arthur Texas plant and terminal copies of the attached notice marked Appendix A 31 Copies of the notice on forms provided by the Regional Director for Region 23 after being signed by the Re spondent s authorized representative shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond ent to ensure that the notices are not altered defaced or covered by any other material Order shall as provided to Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses Si If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director in writing within 20 IT IS FURTHER RECOMMENDED that the complaint be days from the date of this Order what steps the Re dismissed insofar as it alleges violations of the Act not spondent has taken to comply specifically found