Gulf Oil Corp.

National Labor Relations Board - Board Decisions

Oct 19, 1988

291 N.L.R.B. 376 (N.L.R.B. 1988)

376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Gulf Oil Corporation and Carroll Wayne Ibison and
Ray Scheidecker and Norman Guido Cases 21-
CA-19236-2 21-CA-19236-3 and 21-CA-
19311
October 19 1988
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On November 19 1981 Administrative Law
Judge George Christensen issued the attached deci
Sion The General Counsel and the Charging Par
ties filed exceptions and supporting briefs The Re
spondent filed cross exceptions and a brief in sup
port of the judges decision in response to the
General Counsels and Charging Parties excep
tions and in support of its cross exceptions The
Charging Parties filed a brief in response to the Re
spondent s cross exceptions and the Respondent
filed a supplemental brief 1
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings findings 2 and
conclusions as modified and to adopt the recom
mended Order
Since 1967 OCAW Local 1 128 (the Union) has
represented certain hourly paid employees at the
Respondents Santa Fe Springs California facility
The January 8 1979 to January 7 1981 collective
bargaining agreement contained a reopener provi
sion It also preserved the Union s right to strike
no earlier than January 8 1980 3 The Union in
yoked the reopener clause agreement was not
reached and the Union began a lawful economic
strike on January 8 On commencement of the
strike the Respondent suspended payment of sick
ness and accident (S & A) benefits to eight employ
ees who were receiving them at the time the strike
began
On March 29 the Respondent and the Union set
tled the strike and executed a letter of agreement
extending the collective bargaining agreement for 1
year and providing for increases in wages and ben
efits In paragraph 7 the agreement further provid
i The Respondent has requested oral argument The request is denied
The record exceptions and briefs adequately present the issues and the
positions of the parties
2 We agree with the judge s finding that the Board s jurisdiction in this
proceeding is not preempted by the Employee Retirement Income Act of
1974 (ERISA) Pub L 93-406 88 Stat 829 (codified as amended) 29
US C § 1001 et seq See Gulf Oil Co 290 NLRB 1157 fn 4 (1988) in
which the Board rejected this identical defense
3 All dates hereafter are in 1980 unless otherwise noted
ed employees a one time lump sum payment
as a subsidy for certain insurance premiums as
sumed by the employees dunng the strike In ex
change the Union agreed to withdraw its unfair
labor practice charges law suits and grievances re
lated to all benefit plans in recognition of Stipula
tion No 1 of Supplemental Agreement dated Janu
ary 8 1979 4 In a separate return to work agree
ment the parties provided for cessation of the strike
on March 31 and agreed as follows
[T]he Union and Company agree to withdraw
and/or cause to be dismissed with prejudice all
civil actions unfair labor practice charges and
grievances related to matters that arose during
the strike It is agreed that no further
civil actions unfair labor practice charges or
grievances will be initiated by either party for
activity which has occurred during the strike
Pursuant to these agreements the Union with
drew its February 4 charge alleging the Respond
ent violated the Act by suspending S & A benefits
during the strike On July 3 and 21 the Charging
Parties individually filed the charges that led to the
instant complaint
The judge concluded that the Respondent did
not violate Section 8(a)(3) and (1) of the Act by
withholding S & A benefits during the strike The
judge reasoned that under the collective bargaining
agreement the benefits were not accrued and the
Respondent was implementing a longstanding and
well known interpretation of the 1979 supplemental
agreements when it suspended S & A benefits
during the 1980 strike Because the judge dismissed
the complaint based on the Respondents interpre
tation of the collective bargaining agreement he
found it unnecessary to pass on whether the par
ties strike settlement agreements were enforceable
against the individual Charging Parties
As explained below we hold that the complaint
should be dismissed based on the strike settlement
agreements which are enforceable against the indi
vidual Charging Parties because they constituted
an effective waiver by the Union of the affected
employees entitlements to the S & A benefits at
issue 6
4 The sickness and accident plan was among those covered by Stipula
tion 1
8 Stipulation I Art IF provides as follows
The Company and the Union agree that there shall be no stnkes or
lockouts ansing out of the provisions of this Supplemental Agree
ment during the term hereof In the event of a strike it is under
stood and agreed that for the duration of such strike no employer or
employee contributions shall be made to any benefit plan for stoking
employees
6 For the reasons given in Gulf Oil Co 290 NLRB 1157 1157-1159
(1988) we find the S & A benefits were accrued and that Stipulation 1 of
Continued
291 NLRB No 63
GULF OIL CORP 377
In Energy Cooperative 290 NLRB 635 (1988) the
Board held that waivers of contractual benefits
contained in strike settlements may result in dismis
sal of charges filed by individual employees be
cause a collective bargaining representative may
waive its individual members statutory rights to
receive contractual benefits free from discrimina
tion or coercion See the discussion of Metropolitan
Edison Co v NLRB 460 U S 693 (1983) and Ford
Motor Co v Huffman 345 U S 330 (1953) in
Energy Cooperative supra at 636 Energy Cooperative
emphasized that such a waiver is effective only if it
is clear and unmistakable
In the present case it is clear the parties intend
ed a comprehensive settlement of all issues in dis
pute between them at the date of the settlement
The letter of agreement purported to settle all
matters negotiated between the parties ' Among
those issues was the Respondents administration of
its employee benefit plans including the S & A
plan at issue in this case Thus in return for the
Union s relinquishment of all its existing claims
with respect to employee benefits the Respondent
provided a limited payment to all employees in
cluding those who were sick or disabled during the
strike for certain insurance contributions under the
provision of the settlement entitled Lump Sum
Payment
In the return to work agreement the parties sup
plemented and extended this clear resolution of the
Union s claim asserted in the unfair labor practice
charge it had already filed By their agreement to
withdraw and/or cause to be dismissed with prej
udice all civil actions unfair labor practice charges
and grievances related to matters that arose during
the strike the Union clearly intended to waive
any possible contractual claim the Union or indi
vidual employees might otherwise have to S & A
benefits denied during the strike Thus we con
clude that the parties settlement agreements estab
lish that the Union clearly and unmistakably
waived its sick and disabled employees rights to
receive contractual S & A benefits during the
strike
the supplemental agreement did not clearly and unmistakably waive dis
abled employees rights to receive S & A benefits during the strike
In Gulf Oil Co supra at 1159 we found that strike settlement agree
ments identical to those in the present case executed at the Respondent s
facility in Toledo Ohio clearly and unmistakably waived disabled em
ployees rights to receive contractual S & A benefits free from discrimi
nation or coercion Given that we dismiss the complaint based on the
Union s waiver of S & A benefits in the strike settlement agreements we
find it unnecessary to address whether the Respondents interpretation of
Stipulation 1 of the supplemental agreement was reasonable and arguably
correct as found by the judge
° Member Cracraft would not rely on the zipper clause contained in
the letter of agreement as evidence of the parties intent that individuals
rights to S & A benefits were waived
Finally for the reasons set forth in Energy Coop
erative we shall give effect to these strike settle
ment agreements which clearly and unmistakably
waived the statutory right of individual employees
to receive contractual benefits free from discnmi
nation It effectuates the purposes and policies of
the Act to give effect to a private settlement ami
cably resolving a labor dispute where the Union
was entitled to waive individual rights in securing
the good of the entire unit and was empowered to
bind unit members wholly apart from their separate
consent 8 Accordingly we shall dismiss the com
plaint
ORDER
The complaint is dismissed
8 Chairman Stephens notes that none of the factors discussed in his
concurring opinion in Energy Cooperative as possible barriers to the
Board s reliance on a settlement are present in this case
Gordon A Letter Esq for the General Counsel
Deborah 0 Cantrell of Houston Texas for the Re
spondent
Gregory G Kennedy Esq (Cantrell & Green) of Long
Beach California for the Charging Parties
DECISION
GEORGE CHRISTENSEN Administrative Law Judge
On March 3 and 4 1981 I conducted a hearing at Los
Angeles California to try issues raised by a complaint
issued on August 15 1980 1 based on charges filed on
July 3 by Carroll Wayne Ibison in Case 21-CA-19236-2
Ray Scheidecker in Case 21-CA-19236-3 and a charge
filed by Norman Guido (Charging Parties) on July 21 in
Case 21-CA-19311 The three cases involve a common
Respondent and common issues so they were consolidat
ed for purposes of hearing and resolution
The complaint alleged Gulf Oil Corporation (Gulf)
violated Section 8(a)(1) and (3) of the National Labor
Relations Act by suspending the Charging Parties sick
benefits during a 1980 strike by their bargaining unit
represented by Oil Chemical and Atomic Workers Inter
national Union AFL-CIO Local 1-128 (OCAW or the
Union) 2
Gulf moved for dismissal of Case 21-CA-19311 on the
ground Guido s charge was filed and served more than 6
months after Gulf suspended its payment of sick benefits
to him (citing Sec 10(b) of the Act)
Gulf moved for dismissal of all three cases on the
ground
1 The subject matter of the complaint is within the ex
clusive jurisdiction of Federal and state courts under the
terms of the Employee Retirement Income Security Act
of 1974 29 U S C § 1132 (ERISA)
i Read 1980 after further date references omitting the year
2 Relying on Emerson Electric Co 246 NLRB 1143 (1979) enfd as
modified 650 F 2d 463 (3d Cir 1981)
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Charging Parties lack standing to or are es
topped from seeking and securing sick benefits during
the 1980 strike because the then effective Gulf OCAW
agreement expressly provided payment of those benefits
to bargaining unit employees were suspended during
strikes
3 OCAW in the strike settlement agreement waived
any right the Charging Parties may have had to seek and
secure those payments
Gulf also contended the Charging Parties supported
the strike and because of that support are not entitled to
recover sick benefits during the strike period at least
from the time that support became evident (when they
visited the picket line assisted the strikers etc)
With respect to Emerson Gulf argues it is inapplicable
The issues are
1 Whether Guido s charge was untimely filed
2 Whether the courts have exclusive jurisdiction over
the subject matter of the complaint
3 Whether the Gulf OCAW agreement in effect
during the strike was interpreted and applied as proved
ing for the suspension of sick benefits during the 1980
strike
4 Whether OCAW waived whatever right the Charg
ing Parties may have had to seek and secure sick benefits
during the 1980 strike under the terms of the strike set
tlement agreement
5 If the answer to either paragraph 3 or paragraph 4
or both is affirmative whether the alleged suspension
agreement and/or the alleged waiver agreement warrant
dismissal of the three cases
6 Whether the Charging Parties supported the strike
and if so whether such support eliminated or limited
their right to receive sick benefits for all or any portion
of the strike period
The parties appeared by counsel at the hearing and
were afforded full opportunity to adduce evidence ex
amine and cross examine witnesses argue and file briefs
Briefs were filed by the General Counsel the Charging
Parties counsel and Gulf's counsel
Based on my review of the entire record 3 perusal of
the briefs and research I enter the following
FINDINGS OF FACT
I JURISDICTION AND LABOR ORGANIZATION
The complaint alleges the answer admits and I find at
times material Golf was engaged in the business of pro
ducing refining distributing and marketing petroleum
products at a facility located in Santa Fe Springs Cali
forma that it annually purchased and received goods and
products at that facility from suppliers located outside
California valued in excess of $50 000 that it was and is
an employer engaged in commerce in a business affecting
commerce and OCAW was and is a labor organization
within the meaning of Section 2 of the Act
3 Certain errors in the transcript are noted and corrected
II THE ALLEGED UNFAIR LABOR PRACTICES
A Facts
Gulf and OCAW have had collective bargaining rela
tions at the Santa Fe Springs facility since 1967 when
Gulf purchased that facility from Wilshire Oil Co Since
1967 the two have negotiated a series of collective bar
gaining agreements All those agreements contained a
standard provision' concerning the effect of a strike on
various fringe benefit payments
The last agreement Gulf and OCAW negotiated cov
ering the Santa Fe Springs unit prior to the 1980 strike
was executed on January 31 1979 for a 2 year term ex
tending from January 8 1979 through January 7 1981
Under terms of an attached supplemental agreement cov
ering employee benefit plans (including a plan called
the Sickness and Accident Plan (the Plan) effective
for the same 2 year term it was provided (in stipulation
1 art 1 F)
The Company and the Union agree that there shall
be no strikes or lockouts arising out of the prove
sions of this Supplemental Agreement during the
term hereof In the event of a strike arising out of
any labor dispute other than one arising out of the
provisions of this Supplemental Agreement during
the term hereof there shall be no impairment or ab
rogation of any employees rights hereunder how
ever it is understood and agreed that for the duration
of such strike no employer or employee contributions
shall be made to any benefit plan for striking employ
ees and no service credits shall be accured by such
striking employees who are represented by the Union
[Emphasis added ]
During the 1978-1979 negotiations preceding the exe
cution of the 1979-1981 Santa Fe Springs agreement 5
OCAW proposed the deletion of the language italicized
above Gulf opposed its deletion and OCAW withdrew
its proposal in settling the dispute
In the supplemental agreement (stipulation 6) it was
provided OCAW could open the basic agreement (not
the supplemental agreement) by 60 days notice prior to
January 8 1980 for the limited purpose of negotiating a
general cents per hour increase-a fully paid uniform
health care benefit package-and improvements in the
vacation schedules It was further provided OCAW
could strike in support of its proposals for changes in
those three items January 8 1980 if negotiations were
not concluded by then in a manner satisfactory to
OCAW
Attached to and included by reference in the supple
mental agreement was a document entitled Gulf Oil
Company-U S Santa Fe Springs-Plan for Sickness
and Accident Assistance-As Revised January 8 1979
That plan provided
* Standard is and has been part of all agreements between Gulf and
OCAW on behalf of its affiliated locals at all Gulf facilities where
OCAW represented bargaining units since 1950
S And similar agreements at other Gulf locations where OCAW repre
sented employees
GULF OIL CORP
The plan is voluntary on Gulfs part and is with
out cost to eligible employees Gulf paying the
entire cost and of necessity reserving the right
without prior notice to alter modify or terminate
the plan
Assistance to all eligible employees absent from
work on account of accident or illness while not in
line of duty and for accidents or occupational dis
ease while in line of duty is provided in accordance
with the following schedules and regulations
Following the above the plan provided for a graduat
ed schedule of benefits for employees with over 6
months of service unable to work due to accident or ill
ness based on length of service at the time the disability
commenced The benefits ranged from a minimum pay
ment of 2 weeks at half regular pay less any state dis
ability or workmen s compensation payment covering the
same time period for employees with less than 2 years of
service when disabled to a maximum of 12 weeks at full
regular pay or 40 weeks at half regular pay with the
same deductions for employees with over 10 years of
service when disabled
The plan also provided (sec 11)
Assistance provided has no relation what
ever to the determination of the amount of regular
wages an employee will receive or to any terms of
employment but is granted as a voluntary reward
[sec 12] This plan shall not be construed as
creating any binding obligations on Gulf to give or
as giving anyone any enforceable right to disability
assistance the right being hereby expressly reserved
to grant or not to grant any such assistance in any
cases as Gulf in its discretion sees fit
The plan has been filed with the United States Depart
ment of Labor as a qualifying plan under the terms of
ERISA and with the United States Internal Revenue
Service as a qualifying tax exempt employee benefit plan
under the terms of the Internal Revenue Code
Since the inception of collective bargaining relations
between Gulf and OCAW covering Gulf employees
within the bargaining unit represented by OCAW at
Gulfs Santa Fe Springs facility (1967) and Gulf employ
ees within OCAW represented bargaining units at other
Gulf facilities the OCAW represented employees have
engaged in several strikes (in 1969 1974 1975 and 1979)
During each of those strikes (and strikes at other facili
ties between 1950 and 1969) Gulf has notified the
OCAW affiliate involved (including Local 1 128 at Santa
Fe Springs) it was suspending sick and other benefit pay
ments or contributions during the strike and did so with
out protest pursuant to stipulation 1 (noted above)
In late 1979 OCAW served appropriate and timely
notice on Gulf under the language of stipulation 6 that
it wished to negotiate adjustments in the three areas per
mitted wage rates-the hospital/surgical/medical plan-
and vacations When negotiations pursuant to that notice
did not result in an agreement to its satisfaction OCAW
notified Gulf it intended to call a strike in support of its
proposals commencing January 8 Under the terms of the
379
1979-1981 agreements all terms other than those prove
sions affected by the limited opener remained in full
force and effect during the strike including those of stip
ulation 1 and the plan However OCAW asserted Gulf
was obligated to desist from its usual suspension of sick
benefits under the plan during the strike 6
The strike began on January 8 Eight bargaining unit
employees including the three Charging Parties were
off work at the time due to illness or injury Ibison had
been off work since October 1979 when he underwent
brain surgery and was recuperating Scheidecker had
been off work since September 1979 when he underwent
surgery for a knee injury and was recuperating Guido
was off work due to injuries he suffered in an auto acci
dent shortly before the strike started At the time the
strike started both Ibison and Scheidecker were receiv
ing sick benefits from Gulf under the plan Guido had
not yet received any sick benefits Ibison also was receiv
ing weekly disability payments from the State of Califor
nia and Scheidecker was receiving weekly workmen s
compensation payments from Gulfs insurance carrier
Guido received his first disability payment from the
State after the strike started (on January 14) All three
continued to receive their state or insurance carrier pay
ments during the strike
The strike ended on March 29 and the bargaining unit
employees began reporting back to work on their respec
tive shifts shortly thereafter
The last (biweekly) payroll period prior to the strike
began on December 30 and ended on January 13 during
the week following the end of that payroll period Gulf
turned over to an OCAW representative the paychecks
due bargaining unit employees for the December 30-Jan
uary 13 payroll period for distribution to OCAW s mem
bers On or about January 18 Guido picked up his check
at the OCAW strike trailer located just outside the plant
His paycheck contained both pay due him for work (in
cluding overtime) performed during the payroll period
and a sick benefit payment Although the total was less
than he expected Guido attributed the difference either
to an error or miscalculation of the deduction from the
sick benefit of the amount he was receiving in state dis
ability payments Approximately 2 weeks later (on or
about February 1)' Guido returned to the trailer and
6 In apparent reliance on the Board s December 19 1979 Emerson deci
sion supra OCAW did not assert Gulf was obligated to desist from its
usual practice under stipulation I of ceasing to pay its share of premium
costs for continued coverage of bargaining unit employees during the
strike under the hospital/surgical/medical plan nor to refrain from grant
ing service credits for bargaining unit employees during the stoke under
the pension plan Rather OCAW made arrangements for all bargaining
unit employees including the Charging Parties to pay Gulfs share of the
premium cost to the insurance carrier during the strike and the employ
ees made the requisite payments and OCAW did not protest suspension
of pension credits of all bargaining employees for the strike period once
the strike exceeded 60 days in duration (the pension plan provided for
suspension of credits only if the strike s duration exceeded 60 days )
While initially Guido testified he made his first visit to the trailer on
or about January 13 to pick up his check he later corrected his testimo
ny stating he confused the date of the check (Sunday January 13 the
date the payroll period ended) with the date he picked up the check that
he picked up the check on or about the day he normally received his
paycheck for a previous pay period on the Thursday following the end
Continued
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
asked if the OCAW representative had a check for him
for sick benefits during the subsequent pay period and
was informed there was none there He then learned all
sick benefits had been suspended effective January 8
In early February Gulf as it had during past strikes
formally notified OCAW that pursuant to stipulation 1
(1) It had suspended sick benefits to bargaining unit em
ployees effective January 8 and would resume payment
of those benefits the day after the strike terminated (2) it
had not made a February 1 payment towards the cost of
premiums for the bargaining unit employees coverage
under the hospital/surgical/medical plan and (3) if the
strike lasted more than 60 days (which it did) bargaining
unit employees would not receive pension plan credits
for the strike period 8
Although OCAW made no protest over paragraphs (2)
and (3) above 9 it filed a charge with Region 31 of the
National Labor Relations Board (Region) alleging Gulf
violated Section 8(a)(1) and (3) of the Act by suspending
sick benefits during the strike About the same time
OCAW authorized the payment of strike benefits to all
its members whose sick benefits were suspended during
the strike
In accordance with its announcement Gulf suspended
the sick benefits Ibison Scheidecker Guido and five
other bargaining unit employees were receiving prior to
January 8 All three Charging Parties were longstanding
members of OCAW During the strike Ibison applied for
and received two strike benefit payments ($50 per week)
and Schedidecker applied for and received three Guido
neither applied for nor received any strike benefits
All the Charging Parties were in convalescent status
during the strike all were aware of the strike from the
day it started During the strike Guido visited the plant
area OCAW was picketing on three occasions as noted
above on January 18 to pick up a paycheck on Febru
ary 1 to see if he had a second check and once more
on or about February 15 to check the OCAW bulletin
board at the trailer site regarding the status of negotia
tions Scheidecker visited the picket area frequently
during the strike he made his first visit the day picketing
started on January 8 and several times each week there
after until the strike terminated 10 On each occasion he
checked into the status of negotiations and visited with
friends On one occasion a picket asked him to fetch a
hamburger and he complied on another occasion a
picket asked him a question and he responded He at
tended three meetings at the OCAW hall during the
strike the first two to hear reports on the progress of ne
gotiations and the third to hear a report on the tentative
of the pay period (in this case Thursday January 18) He consistently tes
tified he made his second visit 2 weeks after the date of his first visit
which would place it at February i I credit Guido s corrected testimony
and find he made his first visit on January 18 and his second visit on Feb
ruary 1
8 As noted above the pension plan so specified
9 To the contrary OCAW made arrangements for its members to
tender through OCAW to the insurance carrier the full premiums for
February coverage including both Gulf's contribution and that due from
each employee At least one of the Charging Parties testified one of the
things he did when he visited the strike trailer dunng the strike was ar
range for the payment of his premium for continued coverage
10 Scheidecker was a member of the OCAW committee which negoti
aced the 1979-1981 agreement
settlement and vote on whether to ratify it At the ratifi
cation meeting he took the floor to oppose that section
of the agreement in which OCAW agreed to withdraw
its February charge over Gulf's suspension of sick bene
fits during the strike but eventually decided to vote for
the settlement Ibison made weekly visits to the picket
area he visited the site the first time about January 12 or
13 On each visit Ibison checked into the status of nego
tiations and visited with friends He also visited the
OCAW hall On one visit to the hall a friend and neigh
bor and OCAW member employed in the bargaining unit
on strike asked Ibison to deliver to his home some bread
OCAW had supplied him and Ibison complied on a
second occasion the same friend asked him to pick up
some sandwiches from a caterer and deliver them to the
strike trailer for distribution to the pickets and he again
complied None of the three were asked or assigned by
any OCAW official to perform picket duty or other
duties connected with the strike i i
On March 29 Gulf and OCAW executed agreements
providing for wage increases effective January 8 1980
and January 1981 extending the expiration date of the
1979-1981 agreement to January 7 1982 increasing
Gulf's share of the premium cost for hospital/surgical/
medical coverage in two steps effective in April 1980
and January 1981 establishing a dental care plan by June
15 1980 and Gulfs payment of a portion of the premi
um therefor establishing a sixth week of vacation for
employees with over 30 years of service further provid
ing Gulf would administratively handle the hospital/sur
gical/medical coverage premium contribution for March
1980 that Gulf would make a single lump sum payment
in varying sums depending on whether the recipients
were covered by a dental plan by June 15 1980 and on
whether Gulf made a hospital/surgical/medical contribu
tion on their behalf that OCAW would terminate the
strike effective at 4 59 a in on March 31 1980 that the
bargaining unit employees would report for work at their
first regularly scheduled shift starting after 5 a in on
March 31 1980 that seniority would not be broken due
to the strike and that The Union will withdraw its
unfair labor practice charges law suits and grievances
related to all benefit plans in recognition of Stipulation
No 1 of Supplemental Agreement dated January 8
1979 that the Union would withdraw and/or cause to
be dismissed with prejudice all civil actions unfair labor
practice charges and grievances related to matters that
arose during the strike and that no further civil ac
tions unfair labor practice charges or grievances will be
initiated by either party for activity which has occurred
during the strike
In compliance with that agreement OCAW withdrew
its February 4 charge that Gulf violated the Act by sus
pending sick benefits during the strike
Guido was medically certified fit to return to work on
April 14 and returned Ibison returned in May and
1 While the names of the three appeared on a picket roster prepared
by OCAW for use during the strike the three never carved out the pur
ported assignment undoubtedly the roster was prepared from a member
ship list without regard to availability and adjusted when picketing
began
GULF OIL CORP 381
Scheidecker in July Gulf resumed paying sick benefits
to all three from the date the strike ended (March 31)
through the dates each returned to work
As noted above Ibison and Scheidecker filed charges
on July 3 alleging the suspension of their benefits during
the strike was an unfair labor practice and seeking as a
remedy an order for directing Gulf to make them whole
by paying sick benefits to them for the strike period
Guido filed the same charge for the same relief July 21
B Analysis and Conclusions
1 The 10(b) issue
Section 10(b) of the Act provides an unfair labor prac
tice charge must be filed and served within 6 months of
the date the unfair labor practice alleged was committed
Guido filed his charge on July 21 On July 22 the
Region served on Gulf by registered mail a notice of the
filing and a copy of the charge 112 Compliance with Sec
tion 10(b) requires proof the unfair labor practice alleged
was committed on or after January 22
Gulf contends that because the unfair labor practice al
leged in Guido s charge (suspension of his sick benefit)
was committed January 8 Guido s July 22 charge was
untimely filed and served
The General Counsel and Guido in response contend
the 6 month period is tolled from the date Guido ac
quired actual knowledge of the suspension rather than
the date of the suspension13 and since Guido first
became aware his sick benefits had been suspended
within 6 months from the time he filed and served his
charge his charge was timely filed and served
I concur with the latter contention I have entered
findings that Guido s first awareness of the benefit sus
pension came on or about February 1 when he learned
there was not a second benefit check available to him at
the strike trailer mentioned it to a friend on strike and
was informed the benefit was suspended from and after
January 8 Since Guido s July 21 filing of the charge and
its July 22 service of the charge on Gulf occurred within
6 months of his first (February 1) awareness of the sus
pension I find his charge was timely filed within the
meaning of Section 10(b) of the Act
2 The preemption issue
Gulf argues OCAW on behalf of all bargaining unit
employees including Ibison Scheidecker and Guido
agreed in a series of collective bargaining agreements
preceding the 1980 strike that sick benefits would be sus
pended during strikes From that premise Gulf proceeds
to a contention that because Congress placed within the
Federal and state courts exclusive jurisdiction to deter
mine whether a claim for employer withheld sick bene
12 Gulf admitted July 22 service of the charge in its answer to the
complaint
12 Plumbers Local 40 (Mechanical Contractors Assn) 242 NLRB 1157
(1979) V M Construction Co 241 NLRB 584 (1979) NLRB v R 0 Pyle
Roofing Co 560 F 2d 1370 (9th Cir 1977) NLRB Y Longshoremen
ILWU Local 3 549 F 2d 698 (9th Cir 1977) NLRB v Allied Products
Corp 548 F 2d 644 (6th Cir 1977) Communications Workers Local 1104
v NLRB 520 F 2d 411 (2d Cir 1975) NLRB v Shawnee Industries 333
F 2d 221 (10th Cir 1964)
fits had ment the NLRB is barred from exercising ,funs
diction over the Ibison et al claims
Section 502(e) of ERISA indeed provides state and
Federal courts shall exercise exclusive jurisdiction over
claims by a participant or beneficiary in or of an ERISA
covered plan to recover benefits due to him under the
terms of the plan to enforce his rights under the terms
of the plan or to clarify rights to future rights under the
plan and in the preamble that it was Congress intent
in enacting ERISA to protect the interests of par
ticipants in employee benefit plans and their beneficiaries
by providing for appropriate remedies sanctions
and ready access to the courts It is further true a pro
cedure is set forth in the plan for the filing and process
ing of employee claims over Gulf's denial of sick benefits
under the plan
However Section 10(a) states the Board is empow
ered to prevent any person from engaging in an
unfair labor practice [listed in Sec 8] affecting com
merce This power shall not be affected by any other
means of adjustment or prevention that has been or may
be established by agreement law or otherwise and that
(Sec 1(a)) it was Congress intent in enacting the NLRA
to prescribe the legitimate rights of both employees and
employers in their relations to provide orderly and
peaceful procedures for preventing the interference by
either with the legitimate rights of the other
Gulf counsel was unable to cite any decisions support
ing its contention the cases counsel cited i a and the Ian
guage of section 514(d) of ERISA 15 in fact indicate the
contrary
The two statutes (ERISA and NLRA) address differ
ent subjects under differing criteria and the language of
section 514(d) of ERISA when coupled with that of
Section 10(a) clearly indicate Congress neither intended
nor enacted an ouster of Board jurisdiction over the
unfair labor practice allegations of these cases I there
fore deny Gulf's motion to dismiss these actions on the
ground their subject matter has been preempted by
ERISA
3 The alleged agreement for suspension of benefits
during strikes and alleged waiver agreement
Since the 1967 inception of collective bargaining rela
tions between Gulf and OCAW at the former s Santa Fe
Springs facilities 16 Gulf and OCAW have interpreted
and applied the language of article 1 F of stipulation 1 of
the 1979- 1981 supplemental agreement as contained in
the 1979 agreement its predecessor agreements and
agreements between Gulf and OCAW at other facilities
as providing for the suspension during strikes of sick
benefits hospital/surgical/medical benefits 17 and pen
14 Malone v White Motor Corp 435 U S 497 ( 1978) Bonin Y American
Airlines 621 F 2d 635 (5th Cir 1980) Air Line Pilots v Northwest Airlines
627 F 2d 559 (D C Cir 1980)
'5 Nothing in this title shall be construed to alter amend modify in
validate impair or supersede any law of the United States or any rule
or regulation issued under any such law
16 And dunng the terms such relations have existed between Gulf and
various OCAW affiliates at other Gulf facilities where employees were
and are represented by OCAW
Unless the affected employee or OCAW assumed payment of the
requisite premium
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lion benefits (credits)18 of both active and disabled bar
gaining unit employees
In view of that longstanding and uniform interpreta
tion and application of the provision I find and conclude
at the time of the 1980 strike there was an agreement in
effect between Gulf and OCAW that the parties inter
preted and applied as suspending the rights of all bar
gaining unit employees to sick benefits during strikes 19
With respect to the alleged waiver agreement it is
clear on March 29 OCAW agreed in the strike settle
ment agreement to withdraw its February 4 charge filed
on behalf of the Charging Parties and all other bargain
ing unit employees disabled during the strike wherein it
sought payment of sick benefits to them for the strike
period and further agreed to refrain from filing any simi
lar charge in the future in recognition of Stipulation
No 1 of the Supplemental Agreement (the provision re
ferred to in the preceding discussion)
I find by that agreement OCAW expressly reaffirmed
its agreement that stipulation 1 expressly provided for
the suspension of sick benefits during strikes and so rec
ognizing waived its right on behalf of those of its mem
hers who were disabled during the strike to seek that
benefit through an unfair labor practice proceeding
4 The effect of the suspension and waiver
agreements
The General Counsel and the Charging Parties con
tend the two agreements are unenforceable as contrary
to and in conflict with public law citing Section 10(a)
and decisions of the Board and the courts There is con
siderable support for the proposition that a union acting
on behalf of employees it represented in exercise of its
exclusive powers as their agent for collective bargaining
purposes may not in the exercise of those powers com
promise limit bargain away or waive those employees
rights under the Act 20
There is also considerable authority for the proposition
agreements policies or practices to which a union
agrees or acquieces shall be honored even though such
policies or agreements eliminate restrict compromise or
waive rights of the affected employees under the Act or
other public statutes 21
8 After 60 days of strike
8 While I recognize one might interpret the literal language of the
provision as excluding bargaining unit employees disabled during the
strike from its application by classifying them as nonstrikers (the language
of the provision limits its coverage to striking employees ) I find the
contracting parties interpretation and application of the provision (and
OCAW s attempts to eliminate it in the 1979 negotiations) clearly show
their agreement on the inclusion of both disabled and active bargaining
unit employees within the definition of striking employees as those
words were employed in the provision
20 J i Case Co v NLRB 321 U S 332 (1944) National Licorice Co v
NLRB 309 U S 350 (1940) NLRB v Radio Officers 347 U S 17 (1954)
Magnavox Co v NLRB 415 US 322 (1974) Machinists Local 743 v
United Aircraft Corp 337 F 2d 5 (2d Cir 1964) Lerwill v Inflight Motion
Pictures 582 F 2d 507 (9th Cir 1978) NLRB v Emerson Electric Co
supra Textron Inc 257 NLRB 1 (1981)
2 Emporium Capwell Co v Western Addition Community Organization
420 US 50 (1975) Boys Market v Retail Clerks Union 398 U S 235
(1970) NLRB v Rockaway News Supply Co 345 U S 71 (1953) (no strike
agreements) NLRB v Electra Vector 539 F 2d 35 (9th Cir 1976) (em
ployee loss of yearly bonus because not on active payroll because on
strike on requisite dates) Illinois Bell v NLRB 446 F 2d 815 (7th Cir
The differing results in the two lines of cases appear to
turn on whether the employer action under the policy
practice or agreement was discriminatorily motivated or
inherently destructive of employee rights or interests
under the Act 22
In this case it is evident both Gulf and OCAW from
inception of their collective bargaining relations have
treated sick benefits as the plan expressly states as a
reward or discretionary benefit unrelated to and there
fore not an accrued from and not payable to any bar
gaining unit employees during strikes It could reason
ably be held the alleged benefit has been nonexistent
during the entire history of Gulf OCAW collective bar
gaining relations and warranting the dismissal of the cur
rent action 23
Several factors present in the Emerson case on which
the General Counsel and the Charging Parties relied are
not present in this case The Board and the Third Circuit
in Emerson placed considerable emphasis on Emerson s
sudden announcement during the negotiations immediate
ly before the strike that it was going to cut off the sick
benefits it was then providing a substantial number of
bargaining unit employees if the actively employed mem
bers of the bargaining unit went on strike in support of
their demands The Board and the circuit concluded by
that announcement that Emerson was attempting to
coerce and intimidate the active employees into desisting
from exercising their statutory right to strike for fear of
economic retaliation against their disabled fellow em
ployees Gulf made no such announcement in the pre
strike negotiations Also in this case a currently effective
agreement between Gulf and OCAW (stipulation 1) pro
vided for the suspension of sick benefits during any
strikes that occurred during its term there was no such
agreement in effect between Emerson and the union rep
resenting its striking employees
On these facts there is no basis for a finding Gulf
sought tried or intended to inhibit its actively employed
bargaining unit employees from exercising their right to
strike when after the strike was underway it announced
it was as usual suspending all sick benefit payments
during the strike in accordance with the language of
stipulation I Not only do I find then that the proof
1971) NLRB Y Wilson Freight Co 604 F 2d 712 (Ist Cir 1979) (limita
tions on shop stewards authority) Ekas v Carling National Brewery 602
F 2d 664 4th Cir (1979) King v Space Carriers 608 F 2d 283 (8th Cir
1979) (employee loss of relative seniority standing by agreement dove
tailing seniority) Union News v Hildreth 295 F 2d 658 (6th Cir 1961)
(employee loss of employment by agreement to hire of new crew replac
ing current one) Bancroft Whitney Co 214 NLRB 57 (1974) Radioear
Corp 214 NLRB 362 (1974) (employee loss of bonuses by union waiver
or acquiescence while nonrepresented employees continue to receive)
Quality Castings v NLRB 325 F 2d 36 (6th Cir 1963) (employee loss of
profit sharing by tolling strike time in computing entitlement) Southwest
ern Electric Power Co 216 NLRB 522 (1975) Kansas City Power & Light
244 NLRB 620 (1979) (employee loss of sick benefit during strike) Roe
gelin Provision Co 181 NLRB 578 (1970) (employee loss of vacation
credits for time on strike) Kimberly Clark Corp 171 NLRB 614 (1968)
(employee loss of service credits for time on strike) Ace Beverage Co 253
NLRB 951 (1980) IPCO Hospital Supply 255 NLRB 819 (1981 ) (employ
ee loss of vacation pay under language of vacation agreement)
2 NLRB v Great Dane Trailers 388 U S 26 (1967) NLRB v Brown
380 U S 278 (1975) Erie Resistor Corp v NLRB 373 U S 221 (1963)
23 Cf Ace Beverage supra
GULF OIL CORP
fails to establish the necessary motivation on Gulf's part
I further find and conclude none of the strikers were in
fluenced in the slightest in deciding to strike by Gulfs
continuation of its mutually agreed on historical practice
of suspending sick benefits during strikes
The next question is whether the suspension was so
inherently destructive of employee rights under the
Act that the contractual interpretation and application
should be deemed unenforceable under the line of au
thorities cited above 24
Under the language of the plan which the parties in
corporated by reference into the supplemental agree
ment it was stated sick benefit payments were discre
tionary on Gulfs part that they were neither a vested
nor accrued benefit but a gift or reward on Gulfs part
and that were not payable to any bargaining unit em
ployee during a strike whether he became disabled
before the strike and was absent from work when a
strike started due thereto or whether he became disabled
while a strike was in progress Prior to the Board s De
cember 17 1979 Emerson decision the Board had no dif
ficulty in finding sick benefit suspensions for all bargain
ing unit employees during strikes were not so destructive
of actively employed bargaining unit employees right to
strike any practice to that effect had to be disallowed 25
I cannot find that Emerson changed that view in the ab
Bence of a finding of discriminatory motivation 26 1
therefore find the long standing limitation of sick benefit
payments to non strike periods falling alike in its impact
on all bargaining unit employees whether supportive or
nonsupportive of the strike active or disabled during the
strike neither was intended nor did coerce or intimidate
any of Gulfs employees represented by OCAW in the
exercise of their right to strike in support of their de
mands for new or improved contract terms and there
fore was not inherently destructive of their rights
under the Act
On the basis of the foregoing I find and conclude
Gulf did not violate the Act by implementing the long
standing and well known interpretation and application
of stipulation I of the Gulf OCAW supplemental agree
ment during the 1980 strike to suspend all sick benefits
during the strike including the sick benefits of the three
Charging Parties
In view of the foregoing I find it unnecessary to re
solve the questions whether the poststrike waiver agree
ment is unenforceable and whether the Charging Parties
24 See fn 20
2e Cf Southwestern Electric Co and Kansas City Power & Light supra
26 To so find would require a finding Gulf was so motiated when it
negotiated the language of stipulaton I either during the 1979 or preced
mg negotiations Such an inquiry is barred by Sec 10(b) of the Act
383
forfeited their possible right to sick benefits during the
strike by their conduct in support of the strike during its
duration or their receipt of strike benefits from OCAW
during the strike Nor do I find it necessary to resolve
the question whether the Charging Parties in this case
seek a benefit OCAW, knowingly bargained away in 1967
and continued to bargain away through the 1979 negotia
tions for the 1979-1981 duration of the supplemental
agreement when OCAW withdrew its proposal for dele
tion of the stipulation 1 suspension of sick benefits agree
ment in exchange for substantial economic advances in
other areas i e whether through the Charging Parties
OCAW seeks a benefit it could not secure in previous
nego iations
CONCLUSIONS OF LAW
1 At all pertinent times Gulf was an employer en
gaged in commerce in a business affecting commerce and
OCAW was a labor organization within the meaning of
Section 2 of the Act
2 Guido s charge was timely filed under the Act
3 The Board and the courts have concurrent jurisdic
tion over the subject matter of these cases
4 Gulf's suspension of sick benefits during the 1980
strike was in accord with the practice policy and inter
pretation Gulf and OCAW gave to the terms of stipula
tion 1 of their 1979-1980 supplemental agreement which
was in full force and effect during the 1980 strike
5 Gulf's application of the terms of the above prac
tice policy and interpretation during the 1980 strike was
neither intended to nor did coerce Gulf's actively em
ployed bargaining unit employees who participated in
the 1980 strike
6 Gulfs application of the terms of the above prac
tice policy and interpretation during the 1980 strike was
not inherently destructive of its actively employed bar
gaining unit employees right to strike in support of their
limited demands for contract improvements
7 Gulf did not violate the Act by applying the terms
of the above practice policy and interpretation
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed27
ORDER
The complaint is dismissed in its entirety
27 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all put
poses