Texaco, Inc.

National Labor Relations Board - Board DecisionsJan 8, 1985

273 N.L.R.B. 1335 (N.L.R.B. 1985)

TEXACO, INC 1335 Texaco, Inc. and Oil, Chemical & Atomic Workers International Union, AFL-CIO. Case 14-CA- 13419 8 January 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 8 December 1980 Administrative Law Judge Thomas R. Wilks issued the attached decision. The Respondent filed exceptions and a supporting brief. The Board has considered the decision and the record in light of the exceptions and brief1 and has decided to affirm the judge's rulings, findings, 2 and conclusions only to the extent consistent with this Decision and Order. As stated in detail in his decision, the judge found that at the commencement of an economic strike on 8 January 1980 3 the Respondent withheld accident and sick benefit plan payments (A & S benefits) from 13 eligible employees based solely on the fact that the remaining work force of ap- proximately 400 employees engaged in strike activi- ty, and that it continued to withhold such A & S benefits for the duration of the strike. On 29 Janu- ary the Union filed the instant unfair labor practice charge with Region 14 alleging that such actions were unlawful. On 10 April the Respondent and the Union reached agreement on the issues covered by these negotiations and those created by the strike and ex- ecuted a memorandum of agreement and a strike settlement agreement. According to the terms of the memorandum of agreement, all unit employees received increases in wages and benefits, including a lump sum payment of $150 plus medical coverage payments for the months of January and March. These documents also included express provisions requiring the Union to withdraw charges pending before the Board relating to the benefit plans in- cluding A & S benefits.4 1 The Respondent has requested oral argument The request is denied as the record, exceptions, and brief adequately present the issues and the positions of the parties 2 Although no exception was taken, we note that Judge Wilks inad- vertently stated in his decision that employee Joles was medically re- leased to report for work on 14 January The date should have been 14 April The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 3 All dates are 1980 4 The strike settlement agreement stated in part It is further understood that (1) each party will dismiss any and all litigation now pending against the other or its agents, i e injunc- Thereafter, in fulfillment of its obligations under these agreements, the Union on 14 April requested the Regional Director for Region 14 to approve its withdrawal request regarding the present unfair labor practice charge. The Regional Director denied the request on 30 April and issued a com- plaint on 15 May. The hearing was conducted on 24 and 25 June. The Respondent contended before the judge that the Regional Director erred in not granting the Union's withdrawal request, and that in any event it had engaged in no unlawful conduct. The judge found no merit in either of the Respondent's argu- ments, relying on the Board's decision in Emerson Electric. 5 In that case, the Board adopted the ad- ministrative law judge's conclusion that a strike set- tlement agreement by which the union agreed to withdraw charges pending before the Board did not divest the Board of its statutory authority to resolve the issue before it. The rationale for not de- ferring to the terms of that settlement was as fol- lows: The Board acts in the public interest to en- force public, not private, rights. National Lico- rice Company v. N.L.R.B., 309 U.S. 350 (1940); Amalgamated Utility Workers v. Consolidated Edison Company of New York, Inc., 309 U.S. 261 (1940); Agwilines, Inc. v. NL.R.B., 87 F.2d 146 (5th Cir. 1936). "Whenever private con- tracts conflict with its functions, they obvious- ly must yield or the Act would be reduced to a futility." J. I. Case Company v. 1V.L.R.B., 321 U.S. 332 (1940). Section 10(a) of the Act explicitly provides that the Board's power to prevent unfair labor practices "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise . . . ." Accordingly, the "parties cannot by contractual agreement divest the Board's function to operate in the public inter- est." Boire v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America [Pilot Freight Carriers, Inc.], 479 F.2d 778 (5th Cir. 1973). [Id. at 1149.] tions, damage suits, etc, (including arbitrations, unfair labor practice charges, lawsuits and grievances related to any of the benefit plans), and (3) that it is agreed that no new litigation growing out of or related to the strike will be filed The memorandum agreement stated in part Lump sum payment [is] in consideration of the Union's agreement to withdraw all contractual grievances and NLRB charges and court proceedings arising out of the Company's administration of the em- ployee benefit plans during the strike and the Union's agreement not to institute any further actions arising out of said circumstances 5 Emerson Electric Ca, 246 NLRB 1143 (1979), enfd as modified 650 F 2d 463 (3d Or 1981) 273 NLRB No. 164 1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board further held that, under the facts pre- sented, the Respondent Employer had unlawfully withheld A & S benefits from eligible employees at the commencement of a strike. In its exceptions before the Board, the Respond- ent again argues that the Regional Director should have approved the Union's withdrawal request and that the withholding of A & S benefits was lawful. For the reasons set forth below, we agree with the Respondent's first contention that the Regional Di- rector erred when he refused to grant the Union's request to withdraw its unfair labor practice charge, and that on this basis the complaint should be dismissed.Â° We agree fully with the general principles quoted above from the judge's decision in Emerson Electric that the Board's primary responsibility is to enforce the public rights which underlie the Na- tional Labor Relations Act. Missing from that gen- eral statement, however, is any analysis of how a lawful and voluntary strike settlement agreement such as that at issue here may impact, adversely or favorably, on such public rights. We are convinced that the public rights expressly stated in the Act are better served by upholding the integrity of this strike settlement agreement than by disregarding it. Section 1 of the Act lists the various ways by which commerce is obstructed as a result of strikes and less severe manifestations of industrial strife. It further recognizes that the flow of commerce is promoted by encouraging practices fundamental to the friendly adjustment of industrial disputes and by protecting the rights of employees to bargain collectively. With this background, Section 1 then states: It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encour- aging the practice and procedure of collective bargaining. . . . [Emphasis added.] Both the Union and the Respondent recognized their joint responsibility to engage in collective bargaining. Notwithstanding these efforts, an eco- nomic strike ensued and for over 4 months essen- tially all unit employees who were capable of working withheld their services. The parties subse- quently negotiated a strike settlement agreement and a memorandum agreement resolving the dis- puted bargaining issues and other differences aris- ing during the strike. On this basis, the Union agreed to end the strike and withdraw all charges 0 Accordingly, we find it unnecessary to consider the Respondent's second defense that the withholding of A & S benefits was lawful. before the Board and the employees returned to work. This settlement has been deemed satisfactory by the parties to the agreement, and no employee has indicated disagreement with its terms, by which each employee received wage and benefit increases and at least $150 in settlement of out- standing contractual claims. Notwithstanding this voluntary resumption of labor peace between the parties, the Regional Diiector and the General Counsel rejected the withdrawal request herein,7 apparently contending that litigation of a public right must in this instance take precedence over the parties' desire to settle their dispute by their own voluntarily negotiated agreement. We disagree. This resistance to "the practice and procedure of collective bargaining" is directly contrary to Sec- tion 1 of the Act. Given a setting of resumed labor relations peace with negotiated benefits provided for employees, a clear and unequivocal waiver of pending unfair labor practices claims by the Union, and no other unfair labor practice charges extant, we see no sufficient reason for the Board to disre- gard the withdrawal request and intrude on such a cooperative environment in order to determine whether 13 of 400 unit employees were unlawfully deprived of a particular contractual benefit during the duration of an economic strike. The withheld A & S benefits were based solely on a contractual commitment negotiated between the Union and the Respondent. However, the with- holding of this benefit did not interfere with the employees' basic employment rights, and the bene- fit itself appears to be no more than a contractual term or condition which subsequently was negoti- ated away in good faith by the Union and the Re- spondent under the overall terms of the strike set- tlement agreement. 8 Under the above facts, it ap- pears that the primary interest served by continued litigation would be the private contractual rights of these few employees, rather than public rights under the Act. Were we to give paramount concern to these private contractual rights which no employee has sought to litigate, the resulting irony would be that the Board would interfere with the peaceful resolu- tion of labor disputes. Such interference would be most disruptive where the strike settlement agree- ment is conditioned on the withdrawal of the unfair labor practice charge, and the Board's refus- 7 We are administratively advised that the Union's requests to with- draw similar charges arising in connection with the same nationwide strike were granted by other Regional Directors. a In passing, we note that such a reduction in contractual benefits is not essentially different from midcontract negotiations which generally serve to freeze, increase, or reduce previously negotiated wage or benefit levels. In either case the parties, on negotiation and agreement, should be allowed to alter existing contractual terms. TEXACO, INC. 1337 al to approve the withdrawal request voids the strike settlement. 9 However, even where there is no such condition, the parties may be reluctant to settle a strike absent resolution of all issues in dis- pute. In order to promote the parties' desire to re- solve their dispute voluntarily, we should provide every reasonable encouragement that their disputes be resolved on as comprehensive a basis as their strike settlement agreement would indicate. Under all the circumstances, we are of the opin- ion that it will best effectuate the policies of the Act to honor the terms of the strike settlement agreement, by which the Union has requested the withdrawal of the unfair labor practice charge, and not involve the Board in further proceedings in this matter. ORDER The complaint is dismissed. 9 See Clear Haven Nursing Home, 236 NLRB 853 (1978), and Members' Penello's and Murphy's vigorous dissent therein. DECISION STATEMENT OF THE CASE THOMAS R. WILKS, Administrative Law Judge. Pursu- ant to an unfair labor practice charged filed by Oil, Chemical & Atomic Workers International Union, AFL- CIO (the Union) against Texaco, Inc. (the Respondent) and a complaint issued by the Regional Director for Region 14, a hearing was held in St. Louis, Missouri, on June 24 and 25, 1980. The issue litigated was whether the Respondent violated the Act by announcing to em- ployees its intention to discontinue accident and sick ben- efits then being paid to medically excused employees upon the commencement of a strike by the Union and by in fact discontinuing such benefits to employees upon the commencement of a strike by the Union. On and shortly before September 10, 1980, the parties submitted briefs. On the entire record in this case, includ- ing my observation of the witnesses and their demeanor and in consideration of the oral argument made at the hearing and the briefs, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, an Illinois corporation with an office and place of business in Lawrenceville, Illinois (the Law- renceville refinery), is engaged in the processing, nonre- tail sale and distribution of petroleum and related prod- ucts. During an annual period of time representative of its operations, the Respondent sold and distributed at its Lawrenceville refinery products valued in excess of $50,000 which were shipped to points outside the State of Illinois. It is admitted and I find that the Respondent is an em- ployer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION It is admitted and I find that the Union is a labor orga- nization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE A. Facts The Respondent and the Charging Party have main- tained a bargaining relationship for many years. There are 406 employees in the bargaining unit. In November 1979, pursuant to its terms, the current collective-bar- gaining agreement was reopened for negotiations regard- ing wages, vacations, and health care benefits. Negotia- tions occurred on various dates in December 1979. At the negotiation meeting of January 7, 1980, the Union announced that if no agreement were reached by 4 p.m. on January 8, a strike of all unit members would be called. During the afternoon session of the January 8 ne- gotiation meeting the Respondent distributed a printed statement to the Union's bargaining committee including the employee members thereof. That statement entitled "Employee Benefits Procedures in Case of a Strike" pro- vided, inter alia, for the suspension of employer contribu- tions or payments to certain employee benefit plans in- cluding payment of accident and sick benefits (A&S ben- efits). Only the reference to and conduct regarding A&S benefits is at issue in this proceeding. That reference stated as follows: Accident and Sick (AcitS) 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 to those employes [sic] who are disabled due to industrial injury until medically released by their doctors or until expiration of such benefits in accordance with the Plan's benefit schedule, which- ever occurs first. Decision will be reserved regarding the payment of A&S benefits upon termination of the strike for em- ployes [sic] 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 discontinued at the beginning of the strike for those employes [sic] who are still disabled after the termination of the strike. Under no circumstances will A&S benefits by pay- able if they would not have been payable in the ab- sence of a strike. The afternoon bargaining session proved to be unfruit- ful and at 3 p.m. official strike notice was served by the Union, and at 4 p.m. a strike commenced and picket lines were established at the several entrances to the Law- 1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD renceville refinery. All but two employees actively em- ployed on January 8 ceased work and joined the strike which lasted for 4 months. Only one of those was a union member. The plant, however, continued to operate 24 hours a day with supervisory personnel. Work was available for any union member who desired to work. Only one member did so. On January 8 there were 13 employees, members of the Union, who were absent from work on such leave and who had been receiving A&S benefits. The Re- spondent immediately discontinued payment of these benefits for the duration of the strike. The Respondent did so because it assumed that those employees would have withheld their services in support of the strike had they been physically able to do so. The Respondent con- tends that such assumption was justified in view of the Union's strike notice which in effect warned that all unit employees and members would "leave the plant at 4:00 p.m." on January 8 and because the unit employees and union members had historically given near unanimous support to past strike activity. Having assumed that the 13 sick or disabled employees would not work even if they had been able, the Re- spondent therefore concluded that the absence of these employees on and after January 8 was due not only to their physical incapacity but also was due to their sup- port of the Union. Accordingly, the Respondent decided that they did not qualify for A&S benefits inasmuch as such benefits consisted of a continuation of wages, in whole or in part depending upon length of absence and years of service, and were conditioned on an absence from service solely because of sickness or illness. At the commencement of the January 8 strike the Re- spondent had not been aware of any statement or overt action by any of the 13 recipients of A&S benefits which indicated that they supported the strike. However, none of the 13 employees disavowed the strike. Furthermore, the Union did not advise the Respondent that the inca- pacitated employees were not on strike. Nor did it imme- diately demand that the A&S benefits be continued. However, on January 17, at one of the negotiation meet- ings, in a written statement of position, the Union object- ed to a cessation of all benefit plan contributions and payments including A&S benefits. At a meeting of about 50 members conducted by the Union on January 7, the employees were advised of the procedures to be followed in picketing. They were also told that sick persons were not expected to engage in any picketing. No explicit reference was made to A&S benefits. Commencing on February 1, and continuing on each Saturday thereafter, the Union disbursed "grocery money" to any member who appeared at the Union's downtown office to receive these strike benefits. The money was tendered without any questions asked or con- ditions expressed. The sick and disabled employees, or their representatives, received payment of weekly gro- cery money from the Union. During the course of the strike, at varying points in time, all but 2 of the 13 sick and disabled employees joined the strike and engaged in picketing. Those that joined the strike testified that they did so at the point in time when they were recovered from their illness or dis- ability. Most of them testified that they did not report to work when able because they supported the Union. Some testified that because of their illness or disability they gave little or no thought to the strike and had made no decision nor had taken any overt action to support the strike prior to their full physical recovery, although many of them characterized themselves as loyal union members who do not cross picket lines. The only area of factual dispute in this case relates to whether some of these employees engaged in conduct which indicated their support of the strike prior to their physical recov- ery and ability to work. This will be discussed at length following an analysis of the basic legal issue. Agreement was finally reached on the issues of the strike, and on April 10, 1980, a "strike settlement agree- ment" was executed. Simultaneously, the Respondent and the Union executed a memorandum of agreement under which, in effect, the Union agreed to withdraw all unfair labor practice charges. The Respondent, inter aha, agreed to and subsequently did pay each unit employee approximately $150 as reimbursement for certain hospi- talization and dental plan premiums for the months of January and March. The strike ended April 11, 1980. By letter dated April 14, 1980, pursuant to the "strike settle- ment agreement" the Union requested the Regional Di- rector to approve the withdrawal of the underlying unfair labor practice charge. The employees who were deprived of A&S benefits during the strike were not compensated for the loss of those benefits. On Arpil 30, 1980, the Regional Director denied the withdrawal re- quest. The Respondent contends that it acted lawfully in an- nouncing and in actually terminating the A&S benefits inasmuch as it was not required to finance a strike against itself. It argues that the A&S benefits amounted to a wage continuation plan and it was not required to continue the payment of wages to strikers including those employees who, although incapacitated for work, were assumed to have supported the strike. Secondly, it argues that the 13 pre-January 8 A&S recipients affirma- tively allied themselves with the strike after the strike commenced and should accordingly be disqualified from receipt of A&S benefits not only at the point when they joined or affirmatively supported the strike but also ab initio when the stnke started. As indicated, there is a fac- tual issue as to precisely when each of the 13 A&S re- cipients affirmatively joined or supported the strike. In Southwestern Electric Power Co., 216 NLRB 522 (1975), the majority decision of the Board held that where a strike was effective an employer could reason- ably assume that union members on sick leave supported the strike. Furthermore, subsequent ratification of the strike by those persons was recognized as evidence of the reasonableness of that assumption as was the failure of employees to protest nonpayment and their testimony that they would have supported the strike had they not been disabled. Accordingly, the Board concluded that the employer was not required to subsidize a strike by continued disability payments. The rationale of that decision was explicitly rejected by the Board in Emerson Electric Co., 246 NLRB 1143 TEXACO, INC. 1339 (1979), wherein the Board held that an employer may not rely on speculative grounds in concluding that medi- cally excused employees support a strike; that such em- ployees have a right under Section 7 of the Act to re- frain from declaring their position on a strike while they are medically excused; and that an employer may no longer require its disabled employees to disavow the strike in order to receive disability benefits which would be due them had it not been for the strike of fellow em- ployees. The cessation of such benefits to incapacitated employees because of the strike activities of other em- ployees, the Board observed, served as a punishment of employees who had "not yet acted in support of the strike." Accordingly the inconsistent holdings of the Southwestern Electric Power Co. decision were overruled as the Board stated: Accordingly, we now hold for an employer to be justified in terminating any disability benefits to em- ployees who are unable to work at the start of a strike it must show that it has acquired information which indicates that the employees whose benefits are to be terminated has affirmatively acted to show public support for the strike. [Id. at 1144.] The Board also held: For all practical purposes, any employee, disabled or sound, who affirmatively demonstrates his sup- port of the strike by picketing or otherwise showing public support for the strike, has enmeshed himself in the ongoing strike activity to such an extent as to terminate his right to continued disability benefits. [Id. at 1144.] However, the Board observed that a showing of par- ticipation in the strike by medically excused workers sub- sequent to the inception of the strike "does not justify post hoc Respondent's initial termination of benefits to these employees," and "The employee's action in support of this strike, however, may not be used to deprive them of any benefits for the time away from work prior to their supportive action." [Id.] The Respondent disagrees with the Board's holding in the Emerson case, but the Board's language is clear, and I find dispositive of the basic issues in this case. I do not agree that the facts of this case are distinguishable from the Emerson case as is ultimately argued by the Respond- ent. The facts of the Emerson case are similar if not iden- tical with those found herein. In the Emerson case the Board concluded that the Respondent had not sufficient bases to assume that medically excused employees sup- ported the strike from its inception. Unlike this case the Employer in the Emerson case terminated the benefits in the face of a protest from the Union that the benefici- aries were not participants in the strike. Furthermore, in this case no beneficiary protested the cancellation of ben- efits. However, like the Emerson case, the Respondent herein announced its decision to terminate A&S benefits prior to the onset of the strike and before it had any ob- jective basis to conclude that the A&S beneficiaries would join or support the strike. Respondent's reliance upon history is not justified. During a very lengthy history of a bargaining relation- ship only one prior strike had occurred in 1969. Al- though that strike was supported by all of the unit em- ployees, it forms an insufficient premise for a conclusion that in 1980 all unit employees also would join the strike. The Union's strike notice amounted to no more than an announcement that all unit employees and members would be called upon to strike. Certainly every strike notice constitutes either an explicit or implicit warning that all unit employees will loyally support the Union. However, without a more defmitive historical context, such a call for support is not evidence that unanimous support would ensue. Although a majority of employees voted for a strike, that vote occurred in the fall of 1978, there is no evidence that the vote was unanimous, or that the A&S beneficiaries had voted. Accordingly, I conclude that on January 8 the Re- spondent's assumption that A&S beneficiaries would join and support the strike was no less speculative than that of the employer's assumption in the Emerson case. The evidence of the subsequent action of employees in joining or supporting the strike and testimony revealing the subsisting union loyalty of many of the A&S recipi- ents I find to be of no relevance in light of the Board's clear pronouncement that it will look to whether the beneficiaries had "affirmatively acted to show public support" and whether the Respondent "acquired infor- mation" of such affirmative acts prior to the initial termi- nation of benefits. Furthermore, subsequent enmeshment in the strike will disqualify an employee only prospec- tively from the point of enmeshment. Therefore, inquiry as to the employee's state of mind at the time of the onset of the strike is irrelevant except perhaps for the purpose of evaluating the nature of his subsequent ambig- uous conduct.' With respect to the nature of the A&S benefits, Re- spondent herein argues, as was similarly argued by the Employer in the Emerson case, that such benefits consti- tute nothing more than a wage continuation solely condi- tioned upon medical excuse from work. Evidence was adduced as to the nonfunded, nonvested nature of the A&S benefits which were paid "out of pocket" to dupli- cate in whole or in part the employees' normal wages. However, as in the Emerson case, the A&S benefits herein and the scope of such benefits were in direct ratio to the employee's past services and tenure, and were thus earned by the employee by his past services. Physical ill- ness or disability was a condition for receipt of the A&S benefits, but employees were not paid because they stayed home and recuperated. Rather, they were paid be- cause of their past services. The continued payment of A&S benefits cannot be construed to be payment of serv- ices rendered during the strike, nor as payment for a willful refusal to render services. As to the Respondent's argument that A&S benefits are conditioned on absence for the sole reason of physi- cal impairment whereas a subsisting sympathy for the See Chairman Fanning's dissent in the Southwestern Electric Power Co., case which forms the nucleus of the Emerson decision rationale. 1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike adds a second disqualifying reason for absence from work, the evidence fails to demonstrate that at the time of the termination of benefits that the Respondent was aware of any affirmative support of the strike by the A&S recipients, nor was it aware of any subjective deci- sion that the disabled employee would join or aid the strike if he could. Moreover, even if the disabled em- ployee had made a decision to support the strike, that de- cision, like a decision to refuse to support the strike and to return to work, could not be executed because of medical reasons. Such a subjective decision by the em- ployee would be at most a potential or inchoate reason for absence but it could not be an active cause of ab- sence because it was incapable of realization. Clearly then, until the A&S beneficiary regained his physical abilities, he was absent solely because of disability, never mind that he might have longed to have been absent for other reasons. He can only withhold services when able to do so, and he can only enmesh himself in the strike when he is able to engage in some act which constitutes enmeshment. I conclude therefore that, like the sick and accident benefits in the Emerson case, the A&S benefits herein were benefits due the recipients for past services, but which were denied because of the strike activity of other employees. I conclude that the announcement of the sus- pension of such benefits by the Respondent interfered with employees' rights to engage in protected strike ac- tivity and thus violated Section 8(a)(1) of the Act. I con- clude that the Respondent's termination of A&S benefits for the 13 recipients on January 8, 1980, tended to punish them because of the strike activity of other employees and constituted discriminatory conduct violative of Sec- tion 8(a)(3) and (1) of the Act The Respondent contends that the complaint in this case ought to be dismissed inasmuch as the parties, i.e., the Respondent and the Union, had entered into a strike settlement agreement and the Union had accordingly re- quested withdrawal of the unfair labor practice charges. The Respondent raises a variety of arguments in support of this contention, e.g., failure to honor the withdrawal request constitutes a rewriting of the collective-bargain- ing agreement, the Respondent ought not be denied the benefit of its bargain; the Union is obliged to honor its collective-bargaining agreement including the strike set- tlement agreement upon which the contract was condi- tioned; the Board is not empowered to amend the strike settlement agreement; the General Counsel is estopped from prosecuting the complaint because the Respondent had fulfilled its obligations under the settlement agree- ment; and finally, the General Counsel/Regional Direc- tor ought to be estopped from prosecuting this case be- cause similar complaints in numerous other Regions of the Board were withdrawn with approval by the respec- tive Regional Directors of those Regions. The strike settlement agreement issue, with the excep- tion of the last contention of Respondent enumerated above, is identical to the strike settlement issue resolved in the Emerson case which I find to be dispositive. In that case Administrative Law Judge Thomas A. Ricci denied the motion to dismiss and stated. The Board acts in the public interest to enforce public, not private, rights. National Licorice Co. v. 1V.L.R.B., 309 U.S. 250 (1940): Amalgamated Utility Workers v. Consolidated Edison Company of New York Inc., 309 U.S. 261 (1940), Agwilines, Inc. v. 1V.L.R.B., 87 F 2d 146 (5th Cir. 1936). "Whenever private contracts conflict with its functions, they obviously must yield or the Act would be reduced to a futility." J.I. Case v. N.L.R.B., 321 U.S. 332 (1940). Section 10(a) of the Act explicitly provides that the Board's power to prevent unfair labor practices "shall not be affected by any other means of adjust- ment or prevention that has been or may be estab- lished by agreement, law, or otherwise . . . ." Ac- cordingly, the "parties cannot by contractual agree- ment divest the Board's function to operate in the public interest" Boire v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Pilot Freight Carriers, Inc.), 479 F.2d 778 (5th Cir 1973) supra, at 1149. The Board adopted his ruling without further elabora- tion. With respect to Respondent's allusion to the conduct of other Regional Directors with respect to similar settle- ment agreements, at the hearing I ruled that evidence of such conduct was irrelevant to the issues before me and therefore inadmissible. I remain convinced of the propri- ety of that ruling. It is well settled that the issuance of a complaint is within the purview of the General Counsel. For a variety of reasons, a Regional Director, acting on behalf of the General Counsel, may acquiesce in a pri- vate adjustment of an unfair labor practice charge. The ultimate objective of course is the achievement of the basic policies of the Act. That goal may very well be achieved through the application of pragmatism and pru- dence However, in this particular case the issuance of a complaint was premised upon the breach of the Act by the Respondent. Although the Respondent and the Charging Party Union adjusted what they considered to be the fundamental and overriding dispute between them, their settlement provided no meaningful remedy for those employees whose rights were violated and who were adversely affected by the loss of benefits to which they were entitled Under such circumstances and in light of the Board's decision on the Emerson case, I con- clude that the Respondent's motion to dismiss the com- plaint, or in the alternative to withhold any remedial order, is without merit and is hereby denied B. A&S Recipients' Subsequent Strike Involvement For the foregoing reasons I conclude that those 13 re- cipients of A&S benefits who had received A&S benefits on and before January 8, 1980, were entitled to contin- ued A&S benefits until such time as they became en- meshed in the strike by actively participating in the strike or by otherwise affirmatively demonstrating sup- port of the strike to such an extent as to terminate their right to continued A&S benefits. TEXACO, INC. 1341 1. Mary A. Brashear From October 29 to January 8, Brashear received A&S benefits. Although Brashear was a union steward and had been "Recording Secretary" of the Union she was opposed to the strike prior to its inception and she did not appear at the picket line, nor did she engage in any conduct in support of the strike until after her physi- cian medically released her on Friday, January 18. She engaged in picketing at her first opportunity thereafter, Monday, January 21. Accordingly, she is entitled to all A&S benefits which she would have received from Janu- ary 8 through 18, had it not been for the strike activity of other employees 2 Harold N. Chansler Chansler, a union member, received A&S benefits from December 6 to January 8. On Monday, January 21, he was given a medical release by his physician. Chansler did not return to work but rather he joined the strike and engaged in picketing on at least 15 occasions thereafter. Between January 8 and 21, he engaged in no conduct supportive of the strike. Accordingly, Chansler is entitled to all A&S benefits he would otherwise have received from January 8 to 21. 3. John Dickerson Dickerson, a union member, had remjured his back in a nonjob-related incident on January 4. On January 21 he was able to return to work and perform some of his duties but instead he joined the strike and commenced picketing activities, i.e., he admittedly joined the picket- ing by sitting in his truck at the picket line. He consid- ered himself to be a picket. It was common for the pick- ets to sit around a temporary picket's shack near the plant entrance rather than to engage in ambulatory to and from picketing. Another picket joined Dickerson in the cab of his truck. Later, when Dickerson was fully re- cuperated, he engaged in picketing by standing with the other pickets. He engaged in no other overt conduct sup- portive of the strike. I agree with the General Counsel that he is entitled to A&S benefits he otherwise would have received from January 8 to 21. 4. John R. Hixon Hixon, a union member, received chemical burns on his hands in a domestic accident on January 4. He was released to work on January 28. Hixon admitted that he actively picketed sometime in January before the end of the month and picketed with regularity thereafter. I credit the somewhat more certain testimony of Foreman Carl Jarrell that Hixon picketed as early as January 13. Hixon testified that on Monday, January 7, he visited the plant and was examined by the plant physician who stated that he should not report to work but that he should report to the plant on January 10 presumably to be examined again. Hixon appeared at the plant entrance on January 10, but he observed the picketing and decid- ed that he would honor the picket line. Accordingly, he departed without making any attempt to visit the plant physician. I conclude that by publicly appearing at the picket line and refusing to cross the picket line on Janu- ary 10, Hixon manifested sufficient overt support of the strike to disqualify himself from any A&S benefits other- wise due him thereafter. I conclude that he is only enti- tled to whatever benefits he would have received up to January 10, had it not been for the strike activities of other employees. 5. George Grigsby Grigsby, a union member, suffered a heart ailment on November 7, 1979. He was not medically released until February 28, 1980. He received the union strike benefits but until March 3 he engaged in no overt conduct sup- portive of the strike. On and 'after March 3, he admitted- ly picketed by sitting in his parked truck near the pickets with a picket sign placed adjacent to his truck. He did not report for work on February 29, because he decided to honor the picket line and to support the strike. I conclude that Grigsby is entitled to A&S benefits he would otherwise have received from January 8 to Febru- ary 29, had it not been for the strike activities of his fellow workers. I do not conclude that Grigsby's receipt of strike bene- fits before February 29, i e., the "grocery money," dis- qualified him for A&S benefits as I do not view the re- ceipt of such subsistence as enmeshment in the strike or as a public avowal of support for the strike. The dis- bursement of "grocery money," i.e., $30-$35 commenced on February 1 and 9 and continued weekly thereafter. To obtain "grocery money" a member was merely re- quired to appear at the downtown union hall, which is distant from the remotely situated plant, and stand in line until the money was disbursed. No questions were asked of the person who sought these funds. No conditions were attached and no expressions of strike support were asked or offered. Having been denied A&S benefits, Grigsby, like the other A&S recipients, with the excep- tion of Zehner, was deprived of his only income source. The money was tendered without condition. It was there for the asking. Because this pittance was received from the Union rather than from a public institution or a pri- vate charitable organization does not render receipt as an expression of support of the strike. 6. Joe D Johnson On January 4, Johnson, a union member, had under- gone minor nonwork-related surgery. He was medically released for work on January 28. Shortly thereafter, he engaged in regular picket duty. He did not report for work on January 29, because he chose to honor the strike. He engaged in no overt actions supportive of the strike prior to January 29, and he is therefore entitled to A&S benefits that he would have otherwise received from January 8 to January 29 7. Joseph L. Joles Joles, a union member, was hospitalized for a nonwork related illness on January 6. He spent 14 days in the hos- pital and another 20 days in domestic confinement. On Thursday, February 10, he was medically released to report for work on Monday, February 14. During the strike he received "grocery money" from the Union. 1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In-Mid February Joles was driven to the temporary union storefront headquarters across the roadway from the pickets' shanty. He did so because he was told by an unidentified person that he ought to read a posting on the union bulletin board. That posting consisted of a newspaper article which described the Board's Emerson decision. Joles read that notice and departed. He en- gaged in no other conduct arguably supportive of the strike. While hospitalized he was visited by his foreman. During conversation with his foreman he voiced no opinion with respect to the ongoing strike. I do not conclude that Joles' brief visitation to read a posting on the union bulletin board at strike headquarters was sufficient enmeshment in strike activities such as to disqualify him from the receipt of A&S benefits. Accord- ingly he is entitled to A&S benefits that he would other- wise have received from January 8 to April 10, had it not been for the strike activities of his coworkers. 8. Allen W. Morris Morris, a union member, sustained an ankle injury on December 13 and immediately took sick leave. He was medically released on February 11 and on the next day, instead of reporting to work, he joined the strike and picketed regularly thereafter according to a schedule of picketing devised by the Union. Prior to his medical re- lease, he received strike benefits, i.e., "grocery money," but took no action which evidenced his support of the strike. I conclude that he is entitled to A&S benefits which he would have received from January 8 to Febru- ary 11, had it not been for the strike. 9. Charles R. Rogers Rogers was hospitalized on December 7, 1979, and afterward released from the hospital as an outpatient but thereafter readmitted for surgery on his neck on January 8. He was subequently medically released on May 12, 1980. During the strike he also received strike benefits from the Union. Additionally, he admittedly appeared at the picket line. He testified that on occasions he was driven to the picket line by a stilling employee who went there to obtain a picketing assignment. Rogers testi- fied that he merely went "to get out . . . a little bit," pursuant to his doctor's suggestion. He testified that he sat in the car at the picket line while his friend obtained a picketing assignment; and that "a couple of times" he got out of the vehicle to display to the pickets the scar on the back of his neck. He testified that he walked with the pickets "not in the activity part" but "just across back on the road there." Rogers also testified that he was driven down to the picket line "a couple of times" by his neighbor so that Rogers could locate "a guy to build me a porch." During one of these visits, according to Rogers, one or more of the pickets shouted out to him that he ought not picket because he was sick and that he was not "al- lowed" to picket. Rogers testified that on one of his picket line visitations he was handed a newspaper clip- ping account of the Emerson decision, by an unidentified person who stated, "This pertains to you. I wouldn't show my face down here." K.D. Wood, a staff assistant to the supervisor of em- ployee relations, and Louis Butcher, an engineering as- sistant, were responsible for monitoring and supervising the maintenance of a record of picket line conduct during the strike. I credit their certain, responsive, and convincing testimony. Wood observed Rogers walking with picket Preston at the pickets' shanty near the main plant entrance on January 27. One of Preston's duties was to ascertain whether the Union was in compliance with a court order limiting the Union to two pickets at each gate. He recorded in a log maintained by the Re- spondent only the names of Preston and Rogers as pick- ets at that gate. Butcher observed Rogers on February 20 walking back and forth on the picket line, in the com- pany of other pickets, for a substantial period of time. It is my conclusion that Rogers' presence at the picket line on January 27 and thereafter in the manner de- scribed above constituted a manifestation of public sup- port for the strike sufficient to disqualify him from the receipt of A&S benefits. I conclude that Rogers is only entitled to the receipt of A&S benefits he would have otherwise received from January 8 through January 26, had it not been for the strike activities of other unit em- ployees. 10. Kenneth L. Shaffer Shaffer, a union member, was on medical leave from December 14 until he was medically released on April 15, 1980. He received strike benefits from the Union as did other A&S recipients, by appearing in person or by representative at the downtown union hall. On one or more occasions when he collected strike benefits he con- versed with union officers and inquired as to the course of the strike and how long it was expected to endure. He engaged in no other conduct which could arguably be characterized as supportive of the strike. I concluded that Shaffer's mere inquiries fall short of a public expres- sion of support for the strike. I therefore find that Shaffer is entitled to A&S benefits which he would have otherwise received had it not been for his coworkers' strike activities for the period of time from January 8 to April 11, 1980, i.e., the end of the strike. 11. Donald B. Waggoner Waggoner, a union member and welder, became ill after breathing sulphuric fumes on the January 2 night shift. He was on sick leave thereafter and received A&S benefits on January 7 and 8. On January 7 he was exam- ined by the plant physician and told to report back on January 14. Waggoner testified that he did not report back to the plant physician on January 14 because he still felt ill. However, Waggoner admitted that on some occa- sion prior to January 16 he appeared at the temporary union strike headquarters near the picket shanty to read the posted picket schedule so that he could determine when to commence picketing. He testified that his posted assigned date for picketing was January 10, but that he was still ill on January 10 and therefore did not report for picket duty on that date. Waggoner testified that he commenced regular picketing duties on January 16.