Gulf Oil Co.

National Labor Relations Board - Board DecisionsSep 21, 1988

290 N.L.R.B. 1158 (N.L.R.B. 1988)

1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gulf Oil Company and Gary Offenburg, Sr. and Norman Kamann and Jacquelyn Obergon and Glenn Eversole and Walter Eckhart and Robert F. Carsten. Cases 8-CA-13895-1, 8-CA- 13895-2, 8-CA-13895-3, 8-CA-13895-4, 8- CA--13895-5, and 8-CA-13895-6 September 21, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On December 30, 1982 , Administrative Law Judge Benjamin Schlesinger issued the attached de- cision The Respondent filed exceptions and a sup- porting brief i The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge 's rulings, findings, and conclusions and to adopt the recommended Order Since 1950 OCAW Local 7-346 (the Umon) has represented certain hourly paid employees at the Respondent 's Toledo , Ohio refinery The most recent collective-bargaining agreement was effec- tive from January 8 , 1979, to January 7, 1981 The agreement provided that negotiations could be re- opened on certain economic items (not involved here) if the Union gave timely notice It also pre- served the Union 's right to strike no earlier than January 8 , 1980,2 if the parties failed to reach agreement on the reopened items The Union in- voked the reopener, agreement was not reached by January 8 , and the Union began a lawful economic strike at 4 p in on that date The Respondent thereupon suspended , because of the strike and for its duration, payment of sickness and accident (S & A) benefits to five disabled employees who had been receiving them at the time the strike began and for a sixth otherwise eligible employee who entered the hospital on January 8, 1980, but before the 4 p in strike commencement On April 143 the Respondent and the Union settled the strike and executed a letter of agreement and a sep- arate return to work agreement and understanding Pursuant to the agreements , the Union withdrew an unfair labor practice charge filed concerning the denial of S & A benefits On June 5 and 6, the Charging Parties individually filed the charges that led to the instant complaint r The Respondent has requested oral argument The request is denied as the record, exceptions , and briefs adequately present the issues and the positions of the parties ' All dates are in 1980 unless otherwise specified The judge inadvertently referred to the settlement date as April 8 The judge concluded that the Respondent violat- ed Section 8(a)(3) and (1) of the Act by withhold- ing benefits under its S & A plan from the six dis- abled employees during the strike for the periods in which they were otherwise eligible for the bene- fits 4 We agree with many of the judge's findings underlying this conclusion for the reasons set forth in section I, below However , we shall dismiss the complaint based on our further finding , contrary to that of the judge, that the settlement agreement constituted an effective waiver by the Umon of the affected employees' entitlements to the S & A ben- efits at issue The fact and analysis supporting the dismissal are set forth in section II of this Decision and Order I The judge found no merit in the Respondent's contentions that benefits provided for the S & A plan were not accrued benefits and that neither a specific provision in the collective-bargaining agreement nor past practice under similar or identi- cal provisions in earlier contracts entitled it to sus- pend S & A benefits to the six Charging Parties because they were "striking employees " In doing so, the judge relied on the Emerson Electric Co S "coercive effects" theory as reaffirmed in Conoco, Inc 6 and on the Conoco holding , which reversed the Emerson Electric "remedial limitation " (In Conoco, the Board held that even if disabled em- ployees supported or participated in a lawful strike their employer could not eliminate or limit their entitlement to reimbursement for accrued S & A benefits simply because of the strike ) In agreeing with these findings of the judge we rely on Texaco, Inc, 285 NLRB 241 (1987 ), which issued subse- 4 We agree with the judge's finding that the Board's jurisdiction in this proceeding is not preempted by the Employee Retirement Income Act of 1974 (ERISA), Pub L 93-406, 88 Stat 829 (codified as amended), 29 US C Â§ 1001 et seq The Respondent cites secs 502(eX1) and 502(axl)(B) of ERISA , which provide that state and Federal courts exer- cise concurrent jurisdiction over claims by a participant in an ERISA- covered plan-such as the sickness and accident plan in issue here-"to recover benefits due to him under the terms of the plan , or to clarify his rights to future benefits under the terms of the plan " However, sec 514(d) of ERISA further states that "[N]othing in this title shall be con- strued to alter , amend, modify, invalidate , impair or supersede any law of the United States or any rule or regulation issued under any such law" (Emphasis added ) Indeed, as the Supreme Court recently held, after a collective-bargaining agreement expires, the Board 's jurisdiction is exclusive insofar as recovery rests on the finding of an unfair labor prac- tice Laborers Health d Were Trust Fund v Advanced Lightweight Con- crete Co , 108 S Ct 830 (1988) We also agree with the judge that the Charging Parries' failure to meet the ERISA requirement that plan participants exhaust their plan's internal appeal procedures before seeking relief in the courts neither precludes them from filing charges under the Act nor ousts the Board of jurisdic- tion s 246 NLRB 1143 (1979) " 265 NLRB 819 (1982) 290 NLRB No 151 GULF OIL CO 1159 quent to the judge's decision, and which modified the applicable test In Texaco, the Board set forth new principles for determining when an employer 's suspension of ben- efits for disabled employees on commencement of a strike violates the Act The Board there held that the lawfulness of the discontinuance of benefit pay- ments to disabled employees on commencement of a strike will be resolved by application of the test set forth in NLRB v Great Dane Traders, 388 U S 26 (1967) Thus, the General Counsel can meet the Great Dane burden of showing an adverse effect on employee rights by showing that a benefit withheld because of a strike was an accrued benefit At that point the employer may be able to defend its action by showing that it had a legitimate and substantial business justification for cutting off the benefits, such as an explicit waiver by the union, or the em- ployer's reliance on a nondiscriminatory contract interpretation that is reasonably and arguably cor- rect See Texaco, Inc, supra at 247-248 Applying these principles in this case , we find that the General Counsel has proven a prima facie 8(a)(3) and (1) case concerning the Respondent's discontinuance of S & A payments to employees Offenburg, Kamann, Obergon, Eversole, and Eck- hart and its refusal to make any S & A payments to employee Carsten Based on the judge 's specific findings and the S & A plan considered in its entirety, we find the Respondent withheld accrued benefits on the basis of a strike We note that the S & A plan provides that an employee becomes eligible for benefits after at least 26 weeks of continuous active service and that benefits "will be paid" in accordance with a schedule of maximum benefits based on the number of years of continuous service at the time the dis- ability occurs Benefits are thus due and payable based on past performance with no further work required for continuing receipt .' All Charging Par- ties except Carstens were actually receiving these ' The S & A plan is noncontnbutory and is paid for by the Respond- ent as a current operating expense The Respondent explicitly reserved the right, without prior notice, to "alter , modify, or terminate" the plan However, the plan also provides that in the event of withdrawal or modi- fication, "All assistance due an employee will be paid in accordance with the provisions of the plan in effect at the beginning of disability " Â° Employee Carsten , having been hospitalized only several hours before the strike began , had not yet received any benefit payments based on his disability, as of 4 p in on January 8, 1980 In addition to its gener- al contentions covering all the Charging Parties , the Respondent argues that Carsten is not entitled to benefits under the S & A plan because his eligibility did not arse until after the strike began The Respondent relies on sec 3(c) of the plan, which provides that "assistance for sickness will begin with the second regularly scheduled work day following the last day worked , assuming that proper notification (to the employee'a su- pervsor) was given " It is not disputed that Carsten gave the required notice Moreover, the plan's provisions on eligibility referred to above clearly show that , once an employee meets the 26 weeks of work test, assistance is to be provided based on continuous service time at the time of disability, that is, when the employee is no longer able to work In S & A benefits pnor to the begmnmg of the strike on January 8, 1980 It is not disputed that the Re- spondent's only reason for ceasing to meet its obli- gations under the S & A plan was its policy, based on its interpretation of both the collective -bargam- ing agreement and its past practice , of not paying these benefits during a strike Like the judge, we find no meet in the Respond- ent's argument that benefits are not accrued be- cause the plan provides that it "shall not be con- strued as creating any binding obligation on [the Respondent] to give , or as giving, anyone any en- forceable rights to disability assistance , the right being hereby expressly reserved to grant, or not to grant, any such assistance in any cases as [the Re- spondent] in its discretion sees fit " This statement is included within the plan provision referring to "Termination of Employment" and directly follow- ing the statement to the effect that the plan gives an employee entitled to benefits neither a right to continued employment nor any right to assistance he may be owed in the event his employment is terminated Thus the quoted provision could rea- sonably be read as reserving to the Respondent dis- cretion to "grant or not to grant" assistance only in termination situations Nevertheless, to the extent this provision is intended to provide the Respond- ent a more general degree of discretion , we find, reading the S & A plan as a whole , that such dis- cretion covers only the Respondent 's initial unilat- eral decision concerning whether claimed disabil- ities are compensable under the plan In this regard, the plan provides that certain conditions must be met before assistance will be given to oth- erwise eligible employees 9 The record , however, does not show , nor does the Respondent claim, that any of the plan requirements that either dis- qualify an employee from initial coverage or divest him of coverage already granted applies to any of the Charging Parties in this case Thus, because none of the discretionary determi- nations leading to possible disqualification specifi- cally included in the S & A plan were considered relevant by the Respondent in this case, and be- cause the plan itself contains no reference to loss of benefits in the event of a strike , we fmd that, under Carsten's case this occurred before the strike began Sec 3(c) of the S & A plan therefore does not render Carsten ineligible for benefits, but merely sets the date on which payments are to begin Â° For example, the plan explicitly provides that assistance will not be allowed if an employee fails to give notice of his impending absence be- cause of disability , if a claim is not made within 30 days , if the disability is related to the use of alcohol, drugs, unlawful acts, willful intent to injure himself or another , venereal dsease, horseplay, or, under certain circumstances , fighting Further, the plan provides that payments may not begin or may cease if the employee fails to obtain or continue proper medical care as determined by the Respondent or to provide the Re- spondent with required medical reports 1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD any reasonable and arguably correct interpretation of the plan, the withholding from the Charging Parties of their accrued S & A benefits because of the strike warrants the inference of unlawful dis- criminatory conduct. Consequently, under Texaco the burden shifts to the Respondent to prove a le- gitimate and substantial business justification. The Respondent argues that the Union had ex- pressly waived the right of disabled employees to receive S & A benefits in the event of protected strike activity. It relies first on the 1979 Supple- mental Agreement to the collective-bargaining agreement that provides in pertinent part that . . . it is understood and agreed that for the duration of [a] strike, no employer or employ- ee contributions shall be made to any welfare benefit fund for striking employees, and no service credits shall be accrued by such strik- ing employees who are represented by the Union. The Respondent supports this waiver argument by pointing out that this same contract language has been included in all collective-bargaining agreements negotiated with individual OCAW Locals at its various refineries across the country. The Respondent stresses that pursuant to this pro- vision it has had a consistent past practice of sus- pending S & A benefits during seven strikes, both industrywide and at individual facilities, from 1959 to 1979. On this basis, the Respondent argues, in essence, that the relevant Locals, including Local 7-346 at Toledo in 1969, waived by acquiescence the rights of their represented disabled employees to continue receiving S & A payments during strikes because no Local had ever, in the words of the judge, "taken legal action to recover [such sus- pended] benefits." The judge found it difficult to accept, as do we, the Respondent's argument that the contract lan- guage referring to the suspension, during a strike, of "contributions" to any "welfare benefit fund" applies to the S & A plan, which was a noncon- tributory plan. (See fn. 7, supra.) But, as the judge also reasoned, even assuming for the sake of argu- ment that the language was intended to cover the S & A plan, the Respondent's designation of the six employees as "striking employees" is contrary to the Emerson Electric holding, overruling South- western Electric Power Co., 216 NLRB 522 (1975), that an employer may not presume that employees unable to work on and after the commencement of a strike are affirmatively supporting the strike and can therefore have benefits terminated as if they were strikers. The judge further noted that, under Conoco, not even evidence of affirmative acts showing public support for the strike would change these Charging Parties into "striking em- ployees." We agree with the judge's finding that the Charging Parties were not striking employees. In doing so, however, we do not rely on the judge's use of Emerson's theory of coercion, overruled in Texaco, but only on Conoco's reasoning, affirmed in Texaco, that an employee who is so disabled as to be unable to withhold services from his employer in support of a labor dispute will not ordinarily be classified as a striker. Since the Charging Parties were not "striking employees," the Respondent's argument for contractual waiver fails.1 Â° We simi- larly find no merit in the Respondent's argument based on past practice. The judge suggested that the Union's reason for not filing a charge in 1969- when its only previous strike since 1959 oc- curred--may have been due to the Union's realiza- tion that the Respondent was then privileged, under Southwestern Electric, to terminate S & A benefits to disabled employees at the commence- ment of a strike. However, notwithstanding the Re- spondent's past practice, Emerson Electric was the law at the time of the 1;80 strike."' The record shows that at the last negotiating session on the re- opened issues held just before the strike began on January 8, 1980, the Union specifically asked the Respondent whether payment to the six disabled employees would continue during the strike. The Respondent answered that it was "still considering the matter." The Respondent's manager of labor relations testified that as of January 8, 1980, he had not yet decided "whether or not we should be guided by the new law under the Emerson deci- sion." After the strike began the Respondent an- nounced that the benefits in question were suspend- ed as of January 8, 1980, without even investigat- ing whether, under the then applicable Emerson Electric remedial limitation, it would have been en- titled to do so by showing that the six employees affirmatively supported the strike at its inception. In short, the purported waiver was not clearly and unmistakably based either on the terms of the collective-bargaining agreement or on past prac- tice. Thus far, the Respondent's positions do not support its claim of a legitimate and substantial business justification for its cessation of benefits.12 10 Of course a union and an employer could expressly agree to include all such persons within the class of those called stokers, but no such agreement was shown here 11 Emerson Electric issued on December 19, 1979, approximately 3 weeks before the stoke 12 The Respondent argues that a legitimate business reason to suspend benefits during a stoke was its effort to avoid fraudulent employee claims or claims by employees seeking to take advantage of the S & A plan by going on medical disability for nonemergency reasons just before a strike The judge correctly noted that , although this certainly may constitute a Continued GULF OIL CO 1161 II We do find merit, however, in the Respondent's claim that the Union, in the April 14 strike settle- ment, clearly and unmistakably waived the Charg- ing Parties' statutory rights to be free of discrimi- nation or coercion in the denial to them of the con- tractual S & A benefits The letter of agreement "settle[d] all matters ne- gotiated between the parties," extended the collec- tive-bargaining agreement for 1 year, and provided for increases in wages and benefits Further, in paragraph 7, the Respondent agreed to pay each employee a "one time lump sum payment as a subsidy" for certain insurance premiums assumed by the employees during the strike and the Union agreed to "withdraw its unfair labor practice charges, lawsuits and grievances related to all ben- efit plans" covered by the 1979 supplemental agreement to the collective-bargaining agreement entitled "Stipulation Covering Welfare Benefit Plans "1S The Respondent and the Union further provided, in their back -to-work agreement and un- derstanding of April 14 that [t]he Company and Union agree to withdraw and cause to be dismissed with prejudice all civil actions , unfair labor practice charges, and grievances related to matters that arose during the strike with the exception of [certain speci- fied grievances not here relevant] It is further agreed that no further civil actions, unfair labor practice charges, or grievances will be initiated by either party, for activity which has occurred during the strike In Energy Cooperative, 290 NLRB 635 (1988), the Board addressed a question left open in Texaco and held that waivers of contractual benefits contained in strike settlements may result in dismissal of charges filed by individual employees over the denial of such benefits Thus, a collective-bargain- mg representative may waive its individual mem- bers' statutory right to receive contractual benefits free from discrimination or coercion See the dis- cussion of Metropolitan Edison Co v NLRB, 460 U S 693 (1983), and Ford Motor Co v Huffman, 345 U S 330 (1953), in Energy Cooperative, supra at 636 Energy Cooperative emphasized Texaco's hold- ing that such a waiver is effective only if it is clear and unmistakable For the following reasons, we find such a clear and unmistakable waiver here The letter of agreement purported to "settle all matters negotiated between the parties "14 Among those issues was the Respondent's administration of its employee benefit plans, including the S & A plan at issue in this case Thus, in return for the Union's relinquishment of all its existing claims with respect to employee benefits during the strike, specifically including S & A benefits , the Re- spondent provided a limited payment to all em- ployees, including those who were sick or disabled during the strike, for certain insurance contribu- tions under the provision of the settlement entitled "Lump Sum Payment " In the back-to-work agreement and understand- ing, the parties supplemented and extended this clear resolution of the Union's claim asserted in the unfair labor practice charge it had already filed By their agreement to "withdraw and cause to be dis- missed with prejudice all civil actions , unfair labor practice charges and grievances related to matters that arose during the strike," the Respondent and the Union clearly intended to waive any possible contractual claim the Union or individual employ- ees might otherwise have to S & A benefits denied during the strike Thus, we conclude that the par- ties' settlement agreements establish that the Union clearly and unmistakably waived its sick and dis- abled employees ' rights to receive contractual S & A benefits during the strike Finally, for the reasons set forth in Texaco and Energy Cooperative , we shall give effect to this strike settlement agreement that we have found has met the demanding standard of clearly and unmis- takably waiving the statutory right of individual employees to receive contractual benefits free from discrimination It effectuates the purposes and poli- cies of the Act to give effect to a private settle- ment amicably resolving a labor dispute when the Union was entitled to waive individual rights in se- curing the good of the entire unit and was empow- ered to bind unit members wholly apart from their separate consent 1 5 Accordingly, we shall dismiss the complaint ORDER The complaint is dismissed legitimate business concern, the Respondent made no argument that the Charging Parties had been such employees In any event , under the terms of the S & A plan discussed above , the Respondent was entitled to make nondiscriminatory determinations as to whether any particular claim would be compensable 14 The sickness and accident plan was among those covered by the stipulation 1â€¢ Member Cracraft would not rely on the zipper clause contained in the letter of agreement as evidence of the parties' intent that individuals' rights to S & A benefits were waived 15 Chairman Stephens notes that none of the factors discussed in his concurring opinion in Energy Cooperative as possible barriers to the Board's reliance on a settlement are present in this case 1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Richard F Mack, Esq., for the General Counsel. Deborah O. Cantrell, Esq., Fred F. Bates, Esq. and W. H. Locke, of Houston, Texas, for the Respondent. Gary Offenburg Sr., of Freemont, Ohio, Norman Kamann, of Toledo, Ohio, and Robert F. Carsten, of Oregon, Ohio, for the Charging Parties, pro se. DECISION FINDINGS OF FACT AND CONCLUSIONS OF LAW BENJAMIN SCHLESINGER, Administrative Law Judge. This proceeding was heard before me in Toledo, Ohio, on June 28, 1982. The principal issue presented is wheth- er Respondent Gulf Oil Company violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) by suspending or not paying health benefits to cer- tain of its employees during the course of a strike called by Oil, Chemical and Atomic Workers International Union Local No. 7-346 (the Union). i Respondent and the Union were parties to a collec- tive-bargaining agreement that, although in effect from January 8, 1979, to January 7, 1981, provided for a re- opener on wage increases , fully paid health care benefits, and vacation improvements on the Union's written notice to Respondent no earlier than November 1, 1979. If the parties failed to reach agreement thereafter, the Union was entitled to strike no earlier than January 8, 1980. Notice was given, negotiations failed, and a strike commenced on January 8, 1980, at 4 p.m. Respondent re- fused for any period after 4 p.m. on January 8, and until April 19, 1980, the day after Respondent resumed oper- ations, to pay sickness and accident benefits to six em- ployees who were qualified for and of whom five were paid benefits prior to the commencement of the strike.2 i Respondent admits, and I find , that it has been at all times material a corporation duly authorized to do business under the laws of the Com- monwealth of Pennsylvania and has and does maintain offices in the State of Ohio Respondent is engaged in the processing , nonretail sale, and dis- tribution of petroleum and related products During the year ending De- cember 31, 1979, it manufactured, sold, and distributed from its Toledo, Ohio facility (that closed in 1981) products valued in excess of $50,000, of which amount products in excess of $50,000 were shipped from its Toledo, Ohio location directly to points located outside the State of Ohio I conclude, and Respondent admits, that it is an employer engaged in commerce within the meaning of Sec 2 (2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Sec 2(5) of the Act The relevant docket entrees are as follows All the charges , except the one filed in Case 8-CA-13895-6, were filed by the respective Charging Parties on June 5 , 1980. The other was filed on June 6, 1980. An order consohdating the cases and the consolidated complaint issued on October 31, 1980 2 Gary Offenberg Sr suffered a torn knee ligament on November 12, 1979, received benefits commencing November 13 (when he had sur- gery), was hospitalized for about 3 weeks, had a cast on his leg until the end of February 1980, and was released from his doctor 's care to return to work on May 1, 1980. Respondent resumed paying benefits to Offen- burg on April 19 Norman Kamann suffered from amnesia and was hospi- talized for a week commencing on January 7, 1980, received benefits from 2 30 p in on January 8, and was allowed to return to work on Janu- ary 18, 1980 Jacquelyn Obergon went on pregnancy sick leave, received benefits from November 1, 1979, and was allowed to return to work on March 17, 1980 Glenn Eversole suffered from vascular insufficiency, re- ceived benefits from January 3, 1980, and was allowed to return to work on January 21, 1980 Walter Eckhart suffered from sinusitis , received benefits commencing on December 10, 1979, and was released to return to work on January 10, 1980 Robert F Carsten suffered from benign None of the employees affirmatively participated in any strike activities at the commencement of the strike, al- though the names of some of them were included on a union picket duty roster. In Conoco, Inc., 265 NLRB 819 (1982), the Board reaf- firmed its decision in Emerson Electric Co., 246 NLRB 1143 (1979), enfd. as modified 650 F.2d 463 (3d Cit. 1981), that an employer violates Section 8(a)(1) and (3) of the Act by terminating "certain sick[ness] and acci- dent benefits that it had been paying to disabled employ- ees solely because other employees then actively em- ployed [by] the employer had gone out on strike." Conoco, supra at 820. The Board continued (id. at 820): [D]isabled employees had a Section 7 right to re- frain from declaring their position on a strike while they [are] medically excused, and . . . an employer could no longer require its disabled employees to disavow strike action during their sick leave in order to receive disability benefits.. . . [T]o allow the termination of such benefits to certain employ- ees as a result solely of the strike activities of others was to penalize employees who had not yet acted in support of the strike. As a result of this most recent adherence to the rule in Emerson, Respondent's contention that the rule in Emer- son is "unreasonable and in conflict with well-established principles of labor law" must be rejected. Further, unless there are some distinguishing facts requiring a contrary conclusion, Emerson holds that Respondent's suspension of sickness and accident benefits is a violation of Section 8(a)(1) and (3) of the Act. The principal thrust of Re- spondent's defense is bottomed on its assumptions that it and the Union contractually agreed that these payments would be suspended during a strike, that the parties had applied that principle in their past practice, and that in any event the Union expressly waived any claim to such benefits by negotiating a $150 lump-sum payment in set- tlement of the issue. I reject all these claims. The parties' various agreements state: "[I]t is under- stood and agreed that for the duration of [a] strike, no employer or employee contributions shall be made to any welfare benefit plan for striking employees, and no service credits shall be accrued by union striking employ- ees who are represented by the Union." (Emphasis added.) No contributions were ever paid by Respondent into its sickness and accident plan; instead, when an em- ployee became ill or suffered an accident, the employee was paid from Respondent's general funds. It is difficult to argue, therefore, as Respondent does, that this lan- guage cut off all its responsibilities for the payment of sickness or accident benefits. But, assuming, arguendo, that it was intended to cover the sickness and accident plan as well, I nonetheless conclude, as the Board did in Conoco, supra at 819, 823 fn. 11, that the parties' agree- ment extended only to withholding sickness and accident benefits from those employees who were on strike. The prostatic hypertrophy , was hospitalized on January 8, 1980 (before the beginning of the strike), received no sickness benefits, and was released by his physician to return to work commencing on March 10, 1980 GULF OIL CO 1163 six employees here , who were sick or otherwise disabled on January 8, 1980, were not on strike or "striking em- ployees", they were sick or disabled employees incapable of working or striking It is true that the Umon had listed some of them for picket line duty , but that indicat- ed only the Union's desire that they should actively par- ticipate in the strike, and not the employees ' acquies- cence or participation in the other employees ' concerted activities The record is otherwise barren of any attempt by Respondent to ascertain whether the six employees supported the strike at its commencement There is some record evidence that the Union had never taken legal action to recover benefits that had been suspended on the commencement of a strike That may have been due, in part, to the Union's agreement that de- nials of benefits were not arbitrable and the Board 's prior rule in Southwestern Electric Power Co, 216 NLRB 522 (1975), overruled in Emerson in 1979 , that an employer could reasonably presume that employees on sick leave before the commencement of a strike supported it merely because it was effective and the employees were union members On the other hand, there is evidence that cer- tam employees' sick benefits were continued during the course of a strike in 1952 , and that the Union often re- quested that Respondent continue to pay benefits to em- ployees who were receiving benefits at the commence- ment of the strike I do not find that the Union agreed with Respondent's actions In any event, it appears Re- spondent's primary concern was with fraudulent employ- ee claims for benefits or, at least, employees taking ad- vantage of a scheduled strike by undergoing voluntary surgery immediately prior to the strike in order to main- tam continued benefits during the strike Whatever legiti- macy there may be in Respondent's position,3 here there is no claim that any of the six employees took advantage of the situation by claiming illness immediately prior to the strike Respondent also claims that the benefits due under its sickness and accident plans are not accrued benefits but are wages The type of specific benefits was not dis- cussed in Conoco but was in Emerson , both by the Board and the court of appeals The term "accrued" may be used to indicate a variety of situations , it appears clear that both Conoco and Emerson defined them as benefits that did not depend on any return to work or on any future services to the employer Rather, they were earned by reason of prior work performed and became due by reason of the event of a sickness and accident Once the precondition was met, the benefit accrued to the employee â€¢ Here , benefits are paid only to employees In any event, see Conoco, supra at 834 fn 9 , Texaco, Inc, 239 NLRB 1217, 1222 (1982) â€¢ Emerson, supra at 469 Respondent appears to argue that payments of benefits were merely voluntary Although that may have been so years ago, when Respondent and the Union began to negotiate the terms and conditions of employment of Respondent's employees, including fringe benefit plans, Respondent agreed with the Union that it would not change or modify its commitment to "continue" its plans "in effect " The gist of Respondent's argument is that it may discontinue benefits for rea- sons that violate the Act and unilaterally change terms and conditions of employment Board law is too well settled to require any comment who were employed for 26 weeks and are paid in ac- cordance with a schedule that is based on an employee's past years of continuous service An employee with less than 1 year may receive 2 weeks of full pay and 2 weeks of half pay, and an employee with 10 or more years of service may receive 12 weeks full pay and 40 weeks of half pay Employees with 1 year or more (up to 10 years of service) receive varying amounts of benefits depend- ing on their exact length of service I conclude that, once the precondition of sickness or accident had oc- curred , the benefit not only accrued , but also vested for the number of full and half weeks' wages to which each employee was entitled , contingent, of course, on the length of time the employee was unable to work a Respondent contends that the Union waived any claim for the sickness and accident benefits sought here During the strike , the Union filed an unfair labor prac- tice charge on behalf of the employees whose benefits had been suspended In a letter agreement , dated April 8, 1980, settling the strike, the Union agreed to "withdraw its unfair labor practice charges , lawsuits and grievances related to all benefit plans in recognition of STIPULA- TION COVERING WELFARE BENEFITS PLANS (SUPPLEMENTAL AGREEMENT) dated the 29th of January, 1979 " The Union complied with this agree- ment, but the individual employees filed their own charges I find that there was no agreement that the em- ployees were barred from doing so or that the Union waived their right to do so (or was empowered to do so) Furthermore , I reject Respondent 's argument that the six employees received $150 in settlement of their claims for sickness and accident claims The agreement recites only that all of Respondent 's employees would receive that amount for contributions which employees apparently had made to retain their coverage during the strike under other group fringe benefit funds, and the re- imbursement was unrelated to the claims of the six em- ployees in this proceeding for sickness and accident ben- efits In any event, a waiver of Emerson rights must be clear and unmistakable, here, it was not Texaco, supra at 1222, Conoco, supra at 834 fn 11 I have considered and reject the numerous other de- fenses interposed by Respondent First, no authority has been cited, and I find no logic in its position that the Employment Retirement Income Security Act, 29 U S C Â§ 1001 et seq, in any way preempts the Board from its jurisdiction over correcting violations of the Act, merely because the discrimination adversely affects rights that to some extent may also be protected under ERISA See 29 U S C Â§ 1144 Second, Board law does not require that an affected employee must pursue internal appeals proce- dures before filing a claim under the Act Even if that were so, the appeal would have had to be presented to 5 Further support for this conclusion is found in the agreements and various stipulations between Respondent and the Union requiring the continuation of the various fringe benefit plans The latter uniformly pro- vide that in the event the Union ceases to represent the employees, any rights "accruing to any individual employees" shall continue in effect The former provide that in the event of a strike , no service credits shall accrue The necessary implication is that the parties recognized that there were rights and credits that accrued 1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent's refinery manager,6 clearly not a neutral, but one who would have reflected Respondent's position that the instant claims here should be suspended. Ac- cordingly, any appeal would have been meaningless. Third, the claims arose when benefits were suspended (formal notification was given by Respondent on January 13, 1980), well within the 6 months prior to the filing of the unfair labor practice charges. Fourth, and finally, the claim that the General Counsel is barred by laches has no foundation in law or fact. Preston H. Haskell Co., 238 NLRB 943, 949 fn. 20 (1978), enf. denied on other grounds 616 F.2d 136 (5th Cir. 1980). I conclude that Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. I shall therefore recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Specifically, 6 Respondent claims that an appeal would have to be filed with the ad- ministrator of the plan , who is its area manager of human resources of the fast Coast area . The description of the plan states otherwise. In any event, the administrator testified that he, too, would have denied an appeal from the suspension of these claims. I shall recommend that Respondent pay to the Charging Parties the sickness and accident benefits for the period commencing on January 8, 1980 at 4 p.m. (except Car- sten , whose benefits shall commence on January 9, 1980)' through the date each employee was able to return to work or the date on which the benefits that each terminated employee was entitled, whichever date is earlier,8 and that interest be paid thereon, to be com- puted in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977).9 Because Respondent has closed its Toledo, Ohio facility, I shall also order that the notice to its former employees be mailed, and in the event Re- spondent reopens its Toledo facility, then post the notice. Sturgis-Newport Business Forms, 227 NLRB 1426 (1977), enfd. 563 F.2d 1252 (5th Cir. 1977). [Recommended Order omitted from publication.] I The sickness and accident plan provides for a 1-day waiting period for the payment of benefits . Carsten's claim, however, accrued prior to the strike. 8 Conoco, supra . Whether the employees actually participated in strike activities after the commencement of the strike is immaterial for the pur- poses of the remedy recommended here. Id. at 820-823. 9 See generally Isis Plumbing Co., 138 NLRB 716 (1962).