Texaco, Inc

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 325 (N.L.R.B. 1988)

TEXACO INC 325
Texaco , Inc and Forrest E Eddy and Daniel W
Holliday and Ida Pearl Williams Cases 16-
CA-9187 16-CA-9236 and 16-CA-9236-3
September 30 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On September 15 1981 Administrative Law
Judge Jesse Kleiman issued the attached decision in
this proceeding The Respondent filed exceptions
and a supporting brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge s rulings findings and
conclusions and to adopt the recommended Order
only to the extent consistent with this decision
On January 7 1980 1 1 day before unit employ
ees struck the Respondent called disabled employ
ee Forrest Eddy and told him he was to report to
work on January 8 because his doctor had released
him for light duty work on the gate He was told
to report or he would be disciplined Eddy then
called the plant nurse and was told that the Re
spondent was calling employees back to work due
to the strike, and that he had been released to sit at
the gate and punch buttons Eddy called the refin
ery on January 8 and reported he was still phys
ically unable to work Eddy s accident and sickness
(A & S) benefits were terminated as of January 7
On January 8 after failure to reach an agreement
pursuant to the contract reopener clause the Union
struck During the last negotiating session on Janu
ary 8, and despite the Unions protest the Re
spondent informed the Union that it would suspend
A & S benefits for disabled employees for the dura
tion of the strike Thirteen employees A & S bene
fits were suspended on commencement of the
strike 2 The disabled employees were denied pen
sion credits for the strike s duration
The parties entered into a memorandum of
agreement settling the strike on March 30 The
agreement provided increases in wages health in
surance benefits and vacation benefits In consider
ation of the Union s agreement to withdraw all
charges and grievances relating to the Company s
administration of the employee benefit plans the
Respondent agreed to pay employees a $150 lump
sum payment for health insurance premiums for
All dates are 1980 unless otherwise noted
2 Forrest Eddy s benefits were suspended on January 7 rather than
January 8
February and to make employees whole for health
insurance premiums for January and March The
agreement also provided that employees who were
disabled before the strike began and receiving A &
S benefits before the strike would resume receipt of
such benefits if satisfactory evidence of continuing
disability was established The A & S payments
were resumed for those employees still disabled
when the strike ended March 30 3 The parties also
signed a separate Strike Settlement Agreement
which provided that each party will dismiss any
and all litigation now pending against the other
(including arbitrations unfair labor practice
charges law suits and grievances related to any of
the benefit plans) and that it is agreed
that no new litigation growing out of or related to
the strike will be filed The charges that led to the
instant complaint were filed by the individual
Charging Parties on various dates in June and July
The judge found the Respondent violated the
Act by terminating disabled employees A & S ben
efits and denying them pension credits during the
strike In its exceptions the Respondent argues that
the complaint should be dismissed based on the
parties memorandum of agreement and strike set
tlement agreement For the reasons set forth below
we agree with the Respondent 4
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
3 The text of the relevant memorandum of agreement provisions is as
follows
LUMP SUM PAYMENT
In consideration of the Union s agreement to withdraw all contrac
tual grievances and NLRB charges and court proceedings arising out
of the Company s administration of employee benefit plans during
the strike and the Union s agreement not to institute further actions
arising out of said circumstances Company agrees to provide the
following
A Employees who did not receive Company contributions to
HSM for the month of February will receive a payment of
$15000
B In addition the Company will make employees whole with
respect to its contributions toward Medical Coverage for the months
of January and March 1980
ACCIDENT AND SICK BENEFITS
It is understood that employees who are unable to report for work
due to sickness or accident which commenced after the strike began
will be eligible for A & S benefits beginning with termination of the
strike In addition for employees who were disabled before the
strike began and receiving A & S benefits such benefits shall be re
sumed at the time the strike is officially discontinued if satisfactory
evidence of continuing disability is established
4 In Texaco Inc 290 NLRB 1181 (1988) we found that agreements
identical to those in the present case executed at the Respondents facile
ties in Houston and Port Arthur Texas clearly and unmistakably waived
disabled employees right to receive contractual A & S benefits free from
discrimination or coercion We rejected however the Respondents de
fense that under its collective bargaining agreement it was privileged to
deny accrued A & S benefits The Respondent asserts the same contrac
tual defense in the present case For the reasons given in Texaco Inc id
at 1181-1182 we reject this identical defense
291 NLRB No 48
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cause a collective bargaining representative may
waive its individual members statutory right to re
ceive contractual benefits free from discrimination
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 at
least regarding the Respondents administration of
its contractual employee benefit plans, which, of
course included the A & S benefit plan Their
memorandum of agreement was in full and com
plete settlement of all issues negotiated It was ex
pressly in return for the Union s relinquishment of
all existing or future claims related to employee
benefits during the strike that the Respondent pro
vided a limited reimbursement to employees (in
cluding those who were sick or disabled during the
strike) for certain insurance contributions under the
article of the agreement entitled Lump Sum Pay
ment Thus this provision clearly resolves any
claims with respect to employee benefits for the
period of the strike
In the memorandum of agreements next article
entitled Accident and Sick Benefits the parties
provided that disability entitlements would resume
on the day after the strike ended With this provi
lion they resolved any differences they might have
had concerning the employees entitlement to dis
ability pay during the strike The parties agree
ment that benefits would resume after the strike
ended clearly reflects the assumption that these
benefits were not payable during the strike The A
& S provision must be read in conjunction with the
provision providing for the lump sum payment that
precedes it and with the memorandum as a whole
Thus the A & S provision makes sense only as
part of the complete resolution of all matters re
garding contractual employee benefits affected by
the strike Further this understanding is reinforced
by the language of the additional Strike Settle
ment Agreement forswearing any and all litiga
tion including [that] related to any of the ben
efit plans as well as new litigation growing out
of or related to the strike
Not only do the memorandum of agreement and
the strike settlement agreement waive employees
rights to A & S benefits they also clearly waive
these same employees claim to pension credits
during the strike To repeat the parties intended
that their agreements settle all issues in dispute be
tween them at the date of the settlement at least as
to the Respondent s administration of employee
benefit plans during the strike which includes the
pension credits in question
In sum we find that the parties settlement
agreements constitute a clear and unmistakable
waiver of any contractual entitlement to disability
pay or pension credits during the strike 5
Finally for the reasons set forth in Energy Coop
erative we shall give effect to the strike settlement
agreements which clearly and unmistakably
waived individual employees statutory right to re
ceive contractual benefits free from discrimination
It effectuates the purposes and policies of the Act
to give effect to a private settlement amicably re
solving a labor dispute where the union was enti
tled 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
Accordingly we shall dismiss the complaint 6
ORDER
The complaint is dismissed
Member Cracraft would not rely on either the zipper clause con
tamed in the memorandum of agreement or the provision providing for
resumption of benefits at the end of the strike as evidence of the parties
intent that individuals rights to A & S benefits were waived Rather in
agreeing with her colleagues that the Union waived the employees con
tractually provided A & S and pension benefits during the term of the
strike Member Cracraft relies on the language of the lump sum payment
section of the memorandum of agreement in which the parties agreed on
a specific lump sum payment in consideration for the Union s relinquish
ment of all claims ansing from the Respondents administration of em
ployee benefit plans during the strike to find such a waiver
9 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
Edward B Valverde Esq for the General Counsel
Randall N Finley Esq of Houston Texas for the Re
spondent
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN Administrative Law Judge On
charges filed in Cases 16-CA-9187 16-CA-9236 and
16-CA-9236-3 by Forrest E Eddy Donald W Holli
day and Ida Pearl Williams respectively 1 the General
Counsel of the National Labor Relations Board by the
Regional Director for Region 16 Fort Worth Texas
issued an order consolidating these cases a consolidated
complaint and notice of hearing on August 21 1980
against Texaco Inc (Respondent) alleging that the Re
spondent engaged in certain unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the National
Labor Relations Act (the Act) On September 4 1980
i Forrest E Eddy filed his original charge on June 9 1980 and an
amended charge on August 19 1980 Daniel W Holliday filed his charge
on July 7 1980 and Ida Pearl Williams filed her charge on July 8 1980
TEXACO INC
the Respondent by counsel duly filed its answer to the
consolidated complaint denying the material allegations 2
A hearing in the consolidated cases was duly held
before me in Tulsa Oklahoma on January 29 and 30
1981 All parties were afforded full opportunity to
appear to introduce evidence to examine and cross ex
amine witnesses to argue orally on the record and to
file briefs At the close of the General Counsels case the
Respondent moved to dismiss the complaint for failure of
proof regarding Forrest E Eddy I denied the motion
Briefs were filed by counsel for the General Counsel and
the Respondent In its brief the Respondent moved to
dismiss the consolidated complaint in its entirety For the
reasons appearing here I deny this motion
On the entire record and the briefs of the parties and
on my observation of the witnesses I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent at all times material has been a cor
poration organized under and existing by virtue of the
laws of the State of Delaware licensed to do business in
the State of Oklahoma with an office and place of busi
ness in Tulsa Oklahoma where it is engaged in the re
fining and marketing of petroleum and natural gas In the
course and conduct of the Respondents business oper
ations during the preceding 12 months these operations
being representative of its operations at all times maten
al the Respondent had gross sales in excess of $500 000
and during the same period of time sold and shipped to
customers in various States of the United States products
valued in excess of $50 000 The consolidated complaint
alleges the Respondent admits and I find that the Re
spondent is now and has been at all times material an
employer engaged in commerce within the meaning of
Section 2(2) (6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The consolidated complaint alleges the Respondent
admits and I find that the Oil Chemical & Atomic
Workers International Union Local 5-217 here referred
to as Local 5-217 or the Union is now and has been at
all times material a labor organization within the mean
ing of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
The consolidated complaint alleges that the Respond
ent violated Section 8 (a)(3) and (1) of the Act by discon
tinuing disability payments to and reducing vacation and
2 In its answer the Respondent alternately raised as a defense in sub
stance that on March 30 1980 the Respondent and the Oil Chemical
and Atomic Workers International Union Local 5-217 entered into a
Strike Settlement and Memorandum of Agreement whereby it was
agreed that this union would withdraw the unfair labor practice charges
relating to the Respondents failure to pay the A&S Plan Benefits to em
ployees within the bargaining unit and the Respondent would under
take various considerations including but not limited to the payment to
each employee in the bargaining unit of $150 to reimburse them for the
cost of certain benefit plans for which Texaco did not make contributions
during said strike and therefore the Respondent was discharged from
any obligation to pay A&S Plan Benefits (accident and sick benefits) to
these employees covering the period of the strike
327
retirement benefits of employees Forrest E Eddy
Daniel W Holliday and Ida Pearl Williams members of
the 0 C A W and other employees similarly situated
whose identity is presently unknown at the Tulsa loca
tion who were on disability leave during the period of
a strike against the Respondent from January 8 through
March 30 1980 all because they joined or assisted the
Union or engaged in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection The Respondent denies these allegations as
serting that it discontinued such payments when the
Union went on strike on the premise that it was not re
quired by law or otherwise to finance a strike against
itself
A Background
The Respondent and Local 5-217 have had a bargain
ing relationship since 1937 with the most recent collec
tive bargaining agreement being in effect from January 8
1979 until January 7 1981 3 The bargaining unit repre
sented by Local 5-217 relevant to these proceedings con
sists of the operating and maintenance employees at the
Respondents Tulsa Oklahoma refinery who are paid on
an hourly basis 4 By letter dated November 1 1979
Local 5-217 served notice reopening [the collective
bargaining agreement] and requesting negotiations pur
suant to a Memorandum of Agreement entitled Re
opener on Wages Health Care and Vacation Schedules
dated January 24 1979 entered into between the Re
spondent and Local 5-217 on the same day and in con
junction with the bargaining contract 5 Local 5-217
sought to negotiate thereunder a substantial wage in
crease fully paid up hospital and health insurance bene
fits and additional vacation time but no agreement
could be reached between the parties during the various
bargaining sessions held through December 28 1979 6
B The Evidence
The Meeting of January 7 1980
On January 7 1980 representatives of the Respond
ent7 and Local 5-217 including employee members of
the Union s bargaining committee8 met at the Union s re
S See it Exh I (Collective Bargaining Agreement dated January 24
1979)
4 The bargaining unit comprises some 300 employees Local 5-217 also
represents in a separate unit and under a different contract the Re
spondent s clerical employees at the Tulsa, Oklahoma plant but this unit
is not involved in these proceedings
6 See it Exh 2 pp 1 5 (Memorandum of Agreement dated March 30
1980)
6 See R Exh 9 (minutes of the meeting of December 28 1979)
r John L Brown Jr Supervisor Employee Relations of Texaco s
West Tulsa Refinery and William W Gastinger Assistant Supervisor
Employee Relations The complaint alleges the Respondent admits and
I find that John L Brown Jr is a supervisor within the meaning of Sec
tion 2(11) of the Act and has been and is now an agent of the Respondent
acting on its behalf
8 Nolen E Stinson chairman Jim R Coody Danny Dawson John
Denham and Jonathan Lonsdale Also present at the negotiations was Bill
McGough representing the Oil Chemical and Atomic Workers Interns
tional Union (International Union) from which Local 5-217 holds its
charter as a local union
328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
quest to continue collective bargaining negotiations
Since it appeared unlikely that agreement would be
reached on the relevant items being negotiated Local 5-
217 informed the Respondent that its International
Union s president Goff had authonzed Local 5-217 to
engage in strike action commencing at the end of the
regular maintenance day shift which is 4 30 p in on Jan
uary 8 1980 9 The Respondent then advised Local 5-
217 that should a strike take place it would consider all
provisions of the collective bargaining agreement imme
diately suspended at whatever point in time a picket line
is established 10
The Meetings Held on January 8 1980
At approximately 10 15 am on January 8 1980 the
parties met at the request of the Respondent to arrange
the orderly shutdown of a part of the refineries oper
ation the Alky should there be a strike and Local 5-
217 agreed later that day to provide the necessary em
ployees to accomplish this starting at the time the
picket line is established 11
The Respondent and the Union met again later that
afternoon at 3 30 p in on January 8 1980 at the Union s
request to continue the current reopener contract nego
tiations The Respondents offer being rejected as mad
equate the Union informed the Respondent that at 4 30
p in that day it would establish a picket line at the em
ployee gate on West 25th Street and will at about the
9 Bill McGough the International Union s representative initially tests
fled that at a previous meeting held on the Friday (January 4 1980)
before the January 7 1980 meeting he had notified the Respondents rep
resentatives that Local 5-217 would call a strike on January 8 1980
unless a bargaining agreement was signed beforehand However when
presented with a copy of the minutes of the negotiation meeting held just
prior to the January 7 1980 meeting which disclosed that such prior
meeting actually took place on December 28 1980 and contained no
record of such notice having been given McGough acknowledged that
he may have been mistaken regarding this Nevertheless McGough in
sisted that while formal notice of the strike date of January 8 1980 was
first given to the Respondents representatives at the January 7 1980
meeting either he or Nolen Stinson had at prior meetings advised them
in substance that the deadline as you know is midnight January the
7th and unless there is some movement in the negotiations the Union
would call the employees out on strike and picket the plant on January 8
1980
Brown the Respondent s chief negotiator at these bargaining sessions
testified that the first Respondent knew of the actual strike date of Janu
ary 8 1980 was when McGough informed him of the date at the meeting
on January 7 1980 He stated that until that afternoon at approximately 4
or 4 30 I was quite certain there wouldn t be a strike However he
also testified that during the period of the bargaining negotiations both
the employer as well as the union prepare for the advent of a strike if
negotiations are unsuccessful
Be that as it may the evidence shows that before January 7 1980 the
Respondent was well aware that Local 5-217 was legally eligible to
strike on January 8 1980 as admitted by Brown in his testimony and of
the possibility that Local 5-217 might engage in a strike on that date if
agreement on the issues being then negotiated was not effectuated i e
discussions between the parties on January 5 1980 concerning the or
derly shutdown of part of the Tulsa Oklahoma plant s operations after
picketing commenced Also see McGough s testimony Additionally the
Respondent had experienced two previous strikes at the Tulsa Oklahoma
plant although Brown testified uncontradictedly that this was the first
time that Local 5-217 had called a strike immediately upon the expira
tion of the contract in the 17 years that I have been a negotiator for
Texaco
° See R Exh 8 (minutes of the meeting of January 7 1980)
' 1 See R Exh 8 (minutes of the meetings held on January 8 1980)
same time place pickets on the contractor gate on South
west Boulevard for information purposes only The Re
spondent at this point furnished the Union with copies
of guidelines describing the administration of employee
benefits in the case of a strike 12 which was reviewed by
the parties The Union then reemphasized its position
taken at prior meetings as well that the collective bar
gaining agreement then in effect would remain so during
the entire period of the strike thus obligating the Re
spondent to continue to pay the costs of benefits in
behalf of striking Texaco employees during the strike
The Respondent then reiterated its position that should
there be a strike the Respondent would consider the bar
gaining contract to be immediately suspended at the time
the picket line was established 13
The Strike
At approximately 4 30 p in on January 8 1980 Local
5-217 commenced a strike against the Respondent at the
Tulsa Oklahoma refinery and picketed this facility until
March 30 1980 at which time the parties settled the
strike by agreement executed that day 14 As set forth
before the Respondent had advised Local 5-217 during
the negotiations preceding the strike that any accident
and sick benefits referred to as A&S benefits 15 being
12 See It Exh 3 (Employee benefits-Procedures in Case of a Strike)
The guidelines makes reference to all employee benefit plans including
wages insurance and vacation and with particular pertinence to the
issues stated as follows
Accident and Sick (A&S) Benefit Plan
Upon commencement of a strike all A&S Benefits will be discon
tinued except in those cases involving industrial accident or injury
A&S benefits will be continued to those employees 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 whichever occurs first
Decision will be reserved regarding the payment of A&S benefits
upon termination of the strike for employees who become disabled
during the strike and whose disability continues beyond the terming
tion of the strike
Decision will also be reserved regarding the resumption of A&S
benefits which were discontinued at the beginning of the strike for
those employees who are still disabled after the termination of the
strike
Under no circumstances will A&S benefits be payable if they
would not have been payable in the absence of a strike
Pension
The Group Pension Plan provides that an employee will be cred
ited with one month of Benefit Service for any calendar month that
the employee is not absent from work with less than full pay for 15
days or more Furthermore the Plan provides that the employees
pension contributions if any will be suspended during any calendar
month that the employee does not earn Benefit Service
Therefore if an employee is on strike for 15 days or more during
any calendar month
(a) The Employee will not be credited with any Benefit Service
for that month and
(b) The employees pension contributions if any will not be col
lected that month they will be suspended
" See In I 1 supra
14 See Jt Exh 2 (Memorandum of Agreement and Strike Settlement
Agreement both dated March 30 1980)
See Jt Exh 5 (Accident and Sick Benefit Plan) Art VIII of the
collective bargaining agreement between the Respondent and Local 5-
217 incorporates the Respondents A&S Benefit Plan among others i e
Group Pension Plan etc into that agreement as a part In substance the
A&S Benefit Plan provides that an employee with 1 years active and
Continued
TEXACO INC
paid to bargaining unit employees would be terminated
with the commencement of a strike and it therefore
stopped such payments to its employees represented by
the Union who were on accident and sick leave at the
time the strike began on January 8 1980 as will be more
particularly set forth 16 Furthermore after the strike
Texaco applied its pension policy towards all bargaining
unit employees represented by Local 5-217 without con
sidering whether the employees were on accident and
sick leave during the strike
John L Brown Jr testified that when the strike began
on January 8 1980 the Respondent had no knowledge
of whether bargaining unit employees who were on
leave due to accident or sickness at the time were going
to support the strike by picketing or otherwise He stated
that none of the employees whose A&S benefits were
terminated during the strike had come forward to dis
avow the strike nor did Local 5-217 inform the Re
spondent that any of these employees were not support
ing it or had refused involvement or participation with it
According to Brown the Respondent continued the op
eration of its Tulsa Oklahoma refinery during the period
of the strike using supervisory and technical personnel to
perform the necessary work and any of the bargaining
unit employees who desired to cross the picket line to
return to their jobs in the refinery could have done so
but that none of these employees reported for work
during the period of the strike 17 That all the bargaining
unit employees honored the picket lines during the strike
and failed to return to their jobs until the strike was over
is clear from the record 18
continuous employment service or more is entitled to A&S payments
when he is sick or injured and would otherwise be working These pay
ments range from 4 weeks to 13 weeks of benefits equivalent to Full
Pay and from 2 weeks to 30 weeks of benefits equivalent to Half Pay
based on length of completed years of service Other provisions for occu
pational injury are contained therein Employees who become ill or have
accidents while not at work are also eligible for A&S benefits unless they
were on personal business military leave or absence layoff status or on
vacation All such benefits under the plan are paid from the general
assets of the Respondent The plan also provides that No benefits will
be paid hourly employees for the first scheduled working day of any
period of absence and that under certain circumstances the Company
may require a medical certificate before benefits are paid The Respond
ent additionally has the option to have its own designated physician in
vestigate the circumstances of any employee s illness or injury to deter
mine whether the employee is taking appropriate steps to expedite his or
her recovery
IB Brown testified that Texaco has always taken the position that to
pay such benefits would be financing a strike against its own operations
He stated that the Respondent considered all the bargaining unit employ
ees whose A&S benefits it had terminated during the strike to be actual
strikers or strike supporters
i r However several of the employees on accident and sick leave at the
time of the strike testified that they felt that the Respondent would not
allow them to return to work during the period of the strike even if they
had wanted to do so i e Forrest E Eddy Lawrence R Eubanks and
Donald H Hof Jr
i8 See Brown s testimony and that of Bobby R Dugger Lawrence R
Eubanks Ida Pearl Williams and Leonard Hardison among others who
testified Moreover during two previous strikes by Local 5-217 at the
Respondent s Tulsa Oklahoma refinery one in and one before 1979 the
same was also true with no bargaining unit employee crossing the picket
line to work in the refinery during the course of those strikes
329
How Unit Employees on Accident or Sick Leave
Fared During the Strike
The evidence shows that 19 employees were on acci
dent and sick leave receiving A&S benefits on January 7
1980 including Charging Parties Forrest E Eddy and
Daniel W Holliday 19 Ida Pearl Williams the other
Charging Party began her eligibility for A&S benefits on
January 8 1980 on the basis of maternity leave 20 Of
these 20 employees the Respondent continued to pay
A&S benefits during the strike to five of them who were
on accident or sick leave because of on the job acci
dents (industrial injuries) for the length of their disability
or until the expiration of their respective benefits in ac
cordance with the Respondents accident and sick benefit
plan 21 Another two of these employees who were ter
minally ill when the strike started on January 8 1980
continued to receive A&S benefits during the strike
period because they were not expected to survive their
illnesses and return to work 22
Of the remaining 13 employees the evidence clearly
shows and the Respondent admits that it discontinued
A&S benefit payments to 12 of them on January 8 1980
the day the strike began and continued to withhold such
payments through March 30 1980 when the strike
ended at which time the Respondent resumed A&S ben
efit payments to those employees who were eligible to
receive them by virtue of their continuing accident or
sickness disability These 12 employees are Bobby R
Dugger Larry S Eckelstafer Darel R Elmore Law
rence Eubanks Don A Farris Leonard M Hardison
Donald H Hof Jr Daniel W Holliday Oran L Kelly
Eston M Newton Bobby R Phipps and Ida Pearl Wil
liams 23 Concerning the other employee Forrest E
Eddy his A&S benefits were terminated on January 7
1980 Brown testified that none of these employees pro
19 See Jt Exh 8 (List of West Tulsa Plant Employees Represented by
OCAW Local 5-217 on Sick Leave and Receiving Sick Leave Pay on
1/7/80)
° As indicated the complaint alleges that the Respondents unlawful
conduct affected not only the three employees who filed charges and are
named in the caption but also the other employees similarly situated
whose identity is presently unknown at the Tulsa location who were on
disability leave during the period Counsel for the General Counsel in his
brief asserts that It was not until commencement of the hearing that
Texaco furnished a list of all employee members of Local 5-217 who
were on A&S leave prior to the strike and had received A&S benefit
payments prior to the January 8 strike
21 Douglas L Asbill (3-30-80) Guy L Fryhover (4-1-80) James A
Marino (4-30-80) Jimmy B Wheat (5-12-80) Alex Graham (2-23-80)
Brown testified Alex Graham did call in and subsequently sent a release
in He was industrial injured there on the date that it shows him being off
first A&S pay stopped on February 23 1980 as a result of his calling in
and telling us that he was released to come to work See Jt Exh 8
supra
22 Jimmy L Lary (deceased 2-16-80) and John M Shaddox (deceased
8-30-80) Brown testified that Shaddox fortunately outlived his doctor s
predictions however he is currently in the hospital expected to die now
but we did as a matter of generosity extend to him full A&S benefits
23 Brown testified that several employees whose A&S benefits were
terminated at the inception of the strike later received all the benefits to
which they would have been entitled during the strike by virtue of their
having taken early retirement based on permanent total disability These
employees included Oran L Kelly Daniel W Holliday and Eston M
Newton See Jt Exh 8 supra
330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tested the termination of their A&S benefits to the Re
spondent24
With the exception of Forrest E Eddy whose testi
mony of necessity must be considered separately because
of the particular circumstances surrounding the Respond
ent s discontinuance of A&S benefits to him on January
7 1980 the day before the strike started the other bar
gaining unit employees who were out on accident or sick
leave and receiving A&S benefit payments on that day
and who were called as witnesses testified substantially
similarly 25 They each testified regarding the dates they
went on accident or sick leave the nature of their dis
abilities and the dates they were medically released by
their doctors to return to work 26 Additionally from
their testimony and that of the other witnesses it is clear
that no employee in the bargaining unit who was on ac
cident or sick leave at the time of the strike crossed a
picket line to return to work until the strike ended even
though some of these employees had recovered from
their disabilities within the period of the strike 27
24 While Eubanks testified that he called the Respondent about the dis
continuance of his A&S benefit payments during the strike he expressly
stated that it was not a protest but informational Brown s testimony
was not contradicted by the employees on disability at the time of the
strike who testified
25 Lawrence R Eubanks Larry S Eckelstafer Bobby R Dugger
Don A Farns Donald H Hof Jr Bobby Ray Phipps and Leonard Har
dison The testimony of Ida Pearl Williams whose eligibility for A&S
benefit payments due to pregnancy (maternity leave) commenced on Jan
uary 8 1980 since the Respondents accident and sick benefit plan ex
cludes payment for the first day of an employees disability was also
similar to that given by these other witnesses
26 Eubanks went on sick leave due to pneumonia on November 5
1979 and was medically released to return to work on February 4 1980
Eckelstafer commenced his sick leave for an undisclosed illness on Janu
ary 3 1980 and was medically released for return to work on January 9
1980 Dugger went on sick leave for a bone spur in his right heel on Jan
uary 2 1980 and was medically released for return to work on January
13 1980 Farns went on sick leave because of bronchitis on January 6
1980 and received his medical release for return to work on January 17
1980 Hof began his sick leave for an upper respiratory infection on
January 3 1980 and although medically released for return to work
could not recall the date Phipps commenced his sick leave due to a wrist
operation on December 11 1979 and was medically released for return
to work after January 14 1980 Hardison went on sick leave because of
the flu on January 2 1980 and was medically released to return to
work on or about January 14 1980 Ida Pearl Williams went on sick
leave effective January 7 1980 because of her pregnancy and was medi
cally released to return to work sometime after the strike ended on
March 30 1980 (See the testimony of the above witnesses Jt Exh 8 and
R Exhs 5 (Eckelstafer) and 6 (Phipps) )
The evidence also shows that Darel R Elmore went on accident or
sick leave on October 22 1979 and his disability terminated September
30 1980 Daniel W Holliday went on accident or sick leave on Novem
her 11 1979 and his disability ended on February 1 1981 when he re
tired on permanent total disability Oran L Kelly went on disability on
July 6 1979 and took Early Retirement with [Permanent Total Disabil
ity] at an undisclosed date Eston M Newton went on disability on Oc
tober 4 1979 and his disability terminated on November 30 1980 when
he took early retirement with permanent total disability (See Jt
Exh 8 )
27 The uncontroverted evidence also shows that all bargaining unit em
ployees remained away from their jobs honoring the picket lines and
that this was also true of the two previous strikes held by Local 5-217 at
the Respondents refinery one before and one in 1969 The Respondent
replaced into evidence a section of the International Union s constitution
and bylaws which provides that members including its local s member
ship who engage in acts which tend to hinder the prosecution of a prop
erly recognized and authorized strike conducted by [OCAW] are sub
ject to fine suspension or expulsion (See R Exh 7 )
According to the testimony of these employees the
Respondent never contacted them to return to work
during the period of the strike although they each ad
mitted that had the Respondent done so they still would
have honored the picket line and refused to return to
their jobs until the strike was over In fact the evidence
shows that many of the employees out on accident and
sick leave at the time the strike began on January 8
1980 and who recovered sufficiently from their disability
or were medically released by their doctors to return to
work while the strike was still in progress joined the
strikers on the picket line at the refinery or preformed
other duties for Local 5-217 in support of the strike in
stead of returning to their jobs 28 Most of these employ
ees returned to work on March 31 1980 after the strike
was settled on March 30 1980 while those employees
whose disabilities continued past this date returned to
work thereafter29 or retired on permanent total disabil
ity 30
Additionally several of these employees testified that
they were unaware of the commencement of the strike
on January 8 1980 because they were out on accident
or sick leave prior to this date and therefore away from
the refinery and subsequently only learned about the
strike from fellow employees 31 from the news media 32
or I presume from Local 5-217 when they were contact
ed by the Union for picket line duty
28 It was stipulated by the parties that the following employees en
gaged in picketing on the following dates in January and February 1980
and either picketed or obtained a substitute picket for themselves during
March 1980
Eubanks-January 16 February 4 22 28 March 7 13 19 26 1980
He also answered telephones at the union hall commencing after
February 5 1980
Eckelstafer-January 9 16 and 28 February 9 1980
Dugger-January 9 16 and 22 February 10 16 22 and 28 March
6 13 19 and 26 1980
Elmore-January 28 February 10 16 22 and 29 March 6 and 19
1980
Hardison-January 17 23 and 29 February 10 16 and 23 March 1
13 20 and 26 1980
Hof-January 10 17 23 and 29 February 4 11 17 23 and 29
March 7 14 20 and 26 1980
Phipps-January 12 19 and 31 February 12 18 and 25 March 16
1980
It was also stipulated that Oran L Kelly Eston M Newton and Forrest
Eddy were not scheduled to picket at all by Local 5-217 It should be
noted that regarding these employees there is no evidence in the record
that Kelly and Newton engaged in picketing activities during the strike
and Eddy denied having done so or in any other manner assisting the
Union
Ida Pearl Williams testified that she did not engage in any picketing
activities during the s rike She stated that she attended two union meet
ings during the strike one at which Local 5-217 apprised its membership
about food stamps this being the reason for her attendance the other
on March 30 1980 when she went to a meeting with her husband who is
also employed by the Respondent and at which the striking employees
voted to return to work Williams continued that she also accompanied
her husband on his visits to the union hall because he preferred not to
leave her alone at home in view of her pregnancy She added that she
performed no work for Local 5-217 at the union hall during the strike
Williams additionally related that she visited the picket line during the
strike to show the other employees her new born infant
2s Darel R Elmore and Ida Pearl Williams
90 Oran L Kelly and Eston M Newton
31 See the testimony of Larry S Eckelstafer
32 See the testimony of Bobby R Dugger
TEXACO INC
Concerning Forrest E Eddy
Forrest E Eddy employed by the Respondent since
1969 and currently in the position of a Steelman at the
vacuum pipe still 33 testified that due to a prior injury
to his left knee sustained on the job he was compelled
to go on sick leave on November 23 1979 after his
knee collapsed underneath [him] five times He stated
that after visiting an orthopedic specialist Dr George
Mauerman he was advised sometime in December 1979
that surgery would be required to cure his injury He
continued that he informed the Respondent through its
plant nurse Cathleen Bates about what had occurred
whereupon he was instructed by the Respondent to see
another physician Dr Bruce Stivers who is their spe
cialists [sic] Eddy stated that he was examined by Dr
Stivers on December 17 1979 and although Stivers was
in agreement with Mauerman for surgery offered an
alternative through exercise and medication According
to Eddy Dr Stivers advised him to remain away from
his job until January 2 1980 his next scheduled medical
examination date and Eddy also reported this to nurse
Bates Eddy added that after Stivers examined him on
January 2 1980 he was told to go home for an addi
tional two weeks and come back to see him the 16th
[January 16 1980] And continue the medication
and treatment 34
Eddy testified that at approximately 1 p in on January
7 1980 he received a telephone call from Ron Pardue
Employee Relations 35 who told him they had gotten a
release from my doctor and that I was to report the fol
lowing day on the main gate from 7 30 to 4 30 Eddy
stated that he told Pardue that he was unable to report
to work because my knee had gone out on me for the
seventh time on the Sunday before that January the
6th He related that Pardue told him he would have to
speak to someone else and put Brown on the phone
Eddy continued
I started to tell him that I was unable to come to
work because of my knee but before I could finish
he told me that they had gotten a release for me to
come to work that I had better be there or else
and hung up the phone 36
He added that Brown never mentioned when I was sup
posed to come at all except that I had better come or
else but he did not specify a time As noted before
Eddy had testified that Pardue told him to report for
work on January 8 1980
33 It appears from the evidence that Eddy is the only employee in the
bargaining unit who may not be a member of Local 5-217
34 Dr Stivers report states
12 80- The patient is slowly improving but he still has tenderness
both medically and laterally The lateral side is more symptomatic
than the medical [sic] side I feel that he is still too symptomatic to
return to work and he will continue conservative care for an additional
two weeks [Emphasis added ]
See G C Exh 2(c)
35 Pardue is employed by the Respondent as a Coordinator Employ
ee Relations and works under Brown who heads the Respondents
employee relations department
36 Eddy testified that he telephoned Brown right back and told
Brown that he had something to tell him I wanted to show him just
how that felt and I hung the phone up on him
331
Eddy continued that he then called the plant nurse
Bates who told him that the Respondent was
calling back all the people that they could call
back because of the strike I was flabergasted be
cause a strike was the last thing on my mind This
warn t a contract expiration year I was at home
trying to medically take care of myself She
told me that they had gotten a release for me to sit
on the gate and punch a button and that was the
extent of it She didn t know what doctor it was
either 37
He stated that he made various attempts to contact Dr
Stivers that afternoon but was unsuccessful 38
Eddy testified that the following morning January 8
1980 he called the refinery and told Pardue that he was
unable physically to come to work He related that
Pardue told him that this would be reported to the Re
spondent Eddy added that he called Dr Stivers office
again and was advised that the only way I could talk to
the doctor would be to make an appointment and be
cause he already had an appointment with Stivers for
January 16 1980 he arranged to see Stivers sooner on
January 14 1980 39
Eddy related that during the period between January
2 1980 when he was examined by Dr Stivers and Janu
ary 7 1980 when he was informed that Stivers had
medically released him to return to work for light duty
he had not informed Stivers about any change in the
condition of his knee He could give no reason for Stiv
ers action in medically releasing him to return to work
Eddy acknowledged that had he been informed that
there was an emergencey situation at the refinery he
would have come to work despite his physical incapacity
but that neither Pardue nor Brown said that any emer
gency condition prevailed
Eddy testified that he was receiving A&S benefits
prior to January 7 1980 but these payments were dis
continued thereafter until March 31 1980 following day
after the strike ended whereupon his A&S benefits were
reinstated until he returned to work on April 20 or 23
1980 He related a conversation between himself William
Gastinger and Cunningham the plant manager which
transspired in July 1980 Eddy stated that he had gone to
see Gastinger about the company taking care of all the
bills from all my injuries that the bill collectors had been
hounding me to death over According to Eddy Gas
tinger told him in this conversation that the Respondent s
company doctor Dr Dunlap had telephoned Dr
37 Eddy testified that he had worked at this gate before and the duties
of the gateman required more than merely sitting down and punching a
button
38 Eddy testified that he made numerous telephone calls to Stiver s
office and to Medical the doctor s answering service leaving his home
phone number for Stivers to return his call According to Eddy Dr
Stivers never returned any of his calls
3e Eddy never kept this appointment for the reason that I got to feel
ing like my doctor patient relationship had been severed because this man
had released me without examining me had not talked to me Eddy re
turned to Dr Mauerman s care on January 18 1980
332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Stivers and obtained a medical release for Eddy to return
to work 40
Eddy continued that the Respondent did not contact
him again to return to his job after the strike commenced
on the afternoon of January 8 1980 nor did he seek to
return to work during the strike period because he be
lieved that the refinery gates were closed to all bargain
ing unit employees 41 As indicated by his testimony
Eddy felt his knee disability was still sufficiently debili
tating to require his remaining away from his job and he
remained under Dr Mauerman s care until April 20 or
23 1980 when he returned to work Eddy stated that he
never visited the strike picket lines never engaged in
picketing himself and never made or answered telephone
calls on behalf of Local 5-217 at any time during the
strike
Concerning the above incident Brown testified that
Ron Pardue a Coordinator in the Respondents em
ployee relations department experienced a shortage on
January 7 1980 of employees to work at one of the re
finery gates it being his responsibility at the time to see
that the gate was adequately manned He stated that in
accordance with common practice Pardue instructed the
Respondents plant nurse Bates to review the current
daily employee absentee report a copy of which is sent
to her early each morning to find an employee on acct
dent or sick leave who could be medically released by
his doctor for light duty work at the gate Brown contin
ued that Bates contacted Texaco s doctor Harold
Dunlap who after conferring with Dr Bruce Stivers
who was Mr Eddy s treating doctor informed her that
Stivers had agreed that Eddy s physical limitations
were not so severe that they would keep him from work
ing on a sit down job at the gate which information
Bates conveyed to Pardue 42 He added that Dr Dun
lap s recommendation that an employee on sick leave is
physically able to return to work made on the basis of
Dunlap s own examination or in consultation with the
employees physician is considered by the Respondent to
be as formal as any other release we receive 43
Brown in initially testifying as a witness for the Gen
eral Counsel stated that either he or Pardue now tele
40 The evidence shows that the alleged medical release regarding
Eddy s ability to return to work was orally obtained from Dr Stivers by
the Respondents company physician Dr Dunlap and no followup in
writing was acquired
41 From his testimony the inference that Eddy would not have crossed
the picket line even if his physical condition allowed him to do so is rea
sonably and clearly raised
42 According to the testimony the inner gate at the refinery is occa
sionally manned by disabled employees who are not medically cleared to
work elsewhere at the Texaco refinery because of the light duty re
quirement of this job Brown related that Ida Pearl Williams had been
working on the gate until January 4 1980 due date of her pregnancy
but then had gone on maternity leave commencing on January 7 1980
and that while another employee was assigned to and working at this
gate that very morning Eddy was asked to report to work immediately
because Pardue had informed Brown that
others were either absent or were going to be absent the next
week We wanted to get Mr Eddy out and familiarize him again
with the gate on January 7th at the time I called him
43 Brown also testified that Dr Dunlap was quite familiar with gate
duty
phoned Eddy44 about noontime on January 7 1980
and instructed him to report to work immediately that
afternoon However in his subsequent testimony given
as a witness for the Respondent he acknowledged that
Pardue had telephoned Eddy I didn t even know that
he had until he told me that he was on the phone
Brown related that Pardue told him that Eddy had re
fused to come to work after having been told that he
had been medically cleared He continued that he re
quested Pardue to tell Eddy that we have good medical
knowledge that he is not going to be hurt that we are
not bringing him back to anything that is all that strenu
ous Brown testified that after Pardue advised him that
this is a rather stormy conversation he decided to talk
to Eddy himself and picked up the telephone receiver
He added that this occurred at approximately 12 30 on
January 7 1980 and that he was unaware at the time
that a strike was to be called on January 8 1980 45
Brown gave only a brief account of the contents of his
actual conversation with Eddy He testified that after re
ceiving medical verfication [sic] from Dr Dunlap
about Eddy s ability to return to work I called Mr
Eddy and instructed him to report immediately on Janu
ary 7 1980 46 Brown continued that in view of what had
transpired on January 7 1980 that same day he instruct
ed the Respondents payroll department to discontinue
A&S benefit payments to Eddy which it did 47
Brown s proffered reason for Eddy being ordered to
report to work immediately that very afternoon even
though there was another employee working at the gate
at the time was in substance to give Eddy the opportu
nity to familiarize himself with the duties required at this
gate and it had been reported to him that Eddy was well
enough to accomplish this job and therefore why
wait He added that Pardue had told him we needed a
gateman as soon as we could get him because
While Brown denied at first that the Respondent had attempted to
contact all the employees on accident or sick leave on January 7 1980 to
have them return to work he did state that he had no knowledge wheth
er Pardue had requested Bates to see if any other employees on the
absent list could be found to be available for light duty jobs at Texaco
on that date He then testified that from the information I have before
me Eddy was the only one that fell within that category
6 However as stated before Brown admitted that the Respondent
was aware at this time that under the provisions of the reopener agree
ment Local 5-217 could validly engage in a strike action on January 8
1980 since the terms of the contract that were subject to negotiations-
was set to expire
46 Eddy s Employee Medical Record (see R Exh 2) contains the
following notations
1/3/80-Employee called in-States he will be off another 2 wks
1/7/80-Dr Dunlap phoned Dr Stivers for report on employee Dr
Dunlap was told that employee may report for gate duty immediate
ly Employee was notified by Employee Relations Dept C Bates
RN
As indicated before Eddy denied that Brown had mentioned any date
for his return when Brown advised him that he had better come to work
or else
4 See R Exh I (Absentee Notice and Pay Order ) which states
Please discontinue A&S Benefits for Forrest E Eddy effective 12 30
p m January 7 1980 Advised employee to return to work as per
Dr H E Dunlap s verbal approval (1-7-80) however employee
refused to return in conversation with John L Brown Jr and Ron
0 Pardue
This form is dated January 7 1980 and signed by Brown and another
employee
TEXACO INC
we were looking at the rest of the week of January
7th We anticipated that next week-we
couldn t be certain-but one of the regular gatemen
was supposed to go to the hospital As it turned out
he didn t but you have to plan these things a little
bit ahead of time
William Gastinger the assistant supervisor in the Re
spondent s employee relations department testified that
he was present in Browns office on January 7 1980
when the above phone call took place 48 He related that
Pardue had come into Browns office and told Brown
that he had Eddy on the phone and that Eddy had re
fused his direction to come to work Gastinger stated
that Brown instructed Pardue to advise Eddy that his
medical release had been obtained from his own doctor
through Dr Dunlap and that he should report for work
but that after Pardue again advised Brown that Eddy
won t come to work Brown had said Well let me
talk to him or something to this effect Gastinger con
tinued that Brown then told Eddy
Well Forrest we have an opening on the gate
that requires very little strenuous activity at all
You sit and you punch buttons
Your doctor Dr Dunlap has concurred with
Dr Stivers that you should be able to do the work
That it is well within any restriction you should
have on you on the basis of your medical difficulty
which I think was a knee
We have a policy that we offer a person work
that he is capable of doing If he refuses we will
sever your A&S benefits and even subject you to
possible discipline because it is a form of insubordi
nation'
Something to this effect
It should be noted that neither Pardue nor plant nurse
Bates were called as witnesses to testify at the hearing
The Respondents Practices Concerning Absences
Brown testified that it is the Respondents practice to
require employees who are out sick for three days or
longer to provide a valid medical certificate that their
illness is the cause of the absence Failure to do so ac
cording to Brown could result in the severance of
A&S benefit payments He also testified that the Re
spondent required employees to report their absences
from duty without prior notice to and permission from
the employees immediate supervisor to their supervisor
or the plant nurse and failure to do so could result in dis
charge 49
Regarding the above Eddy testified that while em
ployees on sick leave usually have to provide a work
release to their immediate supervisor or the nurse
48 Gastinger accounted for his presence in Brown s office at precisely
the time the conversation between Brown and Eddy occurred by assert
mg that because contract negotiations were then being conducted be
tween the Respondent and Local 5-217 with he and Brown being the
Respondents representatives they were frequently together discussing
strategies
49 See R Exh 4 (notice to employees posted in refinery)
333
this requirement is only loosely enforced by the Re
spondent He stated
Well some they do and some they don t It de
pends upon-well lets don t get into that Let s
just say that some people they have required this of
and others they don t
Eddy continued that he was not aware of any written
rule requiring an employee who is sick one or more days
to have a doctor s release before returning to work al
though he knew There is an article in there that says
the company may require but nothing concrete that says
everybody has to
Eubanks testified that employees are obligated to
report their absences to their supervisor and to keep the
Respondent informed of the status of their disability
during its course He stated that he called the plant nurse
during his illness to keep her apprised of his medical
condition and for the same reason secured a medical re
lease from his doctor to provide to the Respondent be
cause this is required He also testified that he discontin
ued such reporting to the Respondent while the strike
was in progress
Williams related that she had provided the Respondent
with a doctor s certificate both at the time she went on
maternity leave and at the time she returned to work as
required by the Respondent but had not called in to
advise about the progress of her pregnancy except that
They knew when I had the baby yes However she
also testified that the Respondent contacted her on the
day the strike was settled to find out about her Materni
ty status
Eckelstafer testified that he notified the Respondent on
January 7 1980 that he would be out ill until January 9
1980 and he submitted a medical certificate from his
doctor to the Respondent in corroboration after the
strike ended Eckelstafer indicated that This matter of
staying in touch is done so that [his supervisor] can make
a [weekly work] schedule for employees
Dugger stated that he had reported his disability to his
supervisor when it occurred as he ordinarily did when
absent because under the Respondents absence reporting
policy it is an employees obligation to keep his supervi
sor advised of his medical status so that he can schedule
you for work
Farris indicated that he notified his foreman of his ab
sence due to illness as obligated so he can keep a sched
ule and know who is going to be available for work
when He stated that the Respondent requires a doc
tor s certification before they will under normal circum
stances pay A&S benefits Farris continued that while
he actually obtained a medical release to return to work
from his doctor and had notified the Respondent that he
had such medical certification he carried it around with
him and then threw it away because the Respondent had
not required it because he did not expect to be receiving
A&S benefits during the period of the strike
According to Hof a doctor s release is necessary on
returning to work after an illness He testified that after
obtaining a doctor s release he never gave it to the
Respondent because nobody ever asked me for it He
334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stated that he had notified the plant nurse of his illness
when it started and normally would have kept the Re
spondent apprised of its progress but like the other em
ployees on disability did not do so during the period of
the strike When asked if under normal circumstances the
Respondent requires a doctor s excuse and release
before an employee can receive A&S benefits he re
sponded Normally if you are off more than three days
I think it is or something like that Hof added that he
did not submit his doctor s medical release form to the
Respondent when he obtained it because in view of the
strike he believed that he would not receive any A&S
benefits for his illness anyway He related that should an
employee not call in to report an absence due to illness
he would still receive the benefits he would be entitled
to but it might be a hard time trying to receive them
Phipps testified that whenever he has been absent from
work due to illness or accident he had brought in a med
ical statement from his physician attesting to the reason
for his illness He presented the Respondent with a medi
cal certificate stating that he was physically able to
return to work after January 14th Phipps did not know
whether he would lose his A&S benefits if he failed to
submit a doctor s slip because he had always done so
in the past on returning to work
Finally Leonard Hardison testified that absence for 3
days or more requires a doctor s release to go back to
work His testimony continued
Q And you have to have the doctors release
before you are going to be eligible [sic] for A&S
Benefits?
A No I don t know about that I know you
have to have a doctor s release to go back to work
As far as A&S benefits you have to-you miss one
day before your-You know you have got so many
days off before you are eligible for that
Hardison added that it was an employees obligation to
report absences due to illness when they occur and to
keep the Respondent periodically apprised of his or her
medical condition
It would appear from the testimony of the above wit
nesses that the employees were aware of the need for re
porting their absences to the Respondent and that they
usually complied However during the strike most em
ployees out on accident or sick leave failed to periodical
ly report their medical status to the Respondent As to
the need to submit a medical certificate to establish eligi
bility for A&S benefits the evidence of this will be dis
cussed in detail
C Analysis and Conclusions
In Southwestern Electric Power Co 216 NLRB 522
(1975) a majority of the Board held that an employer
may reasonably believe that employees on sick leave
before a strike support it solely on the basis that the
strike is effective and the employees are union members
despite the fact that the employer has no way of know
ing with certainty whether the employees on sick leave
do or do not support the strike activities of their fellow
employees The majority therefore concludes that the
employer acted lawfully by terminating sick leave bene
fits to employees prior to any showing that they affirma
tively supported the strike 50
Subsequently in the case of Emerson Electric Co 246
NLRB 1143 1144 (1979) a majority of the Board reject
ed the rationale in the Southwestern Electric Power Co
case supra and concluded that an employer may not
rely on such speculative grounds to justify the terming
tion of existing disability benefits to employees that had
accrued to them as a result of past work performed 511
The Board majority in agreement with the language in
Member Fanning s dissent in Southwestern Electric Power
Co supra stated
In short these employees had a Section 7 right
to refrain from declaring their position on this
strike while they were medically excused [Id at
523 ]
Consequently an employer may no longer require
its disabled employees to disavow strike action
during their sick leave in order to receive disability
benefits To allow the termination of such benefits
to certain employees as a result solely of the strike
activities of others is to penalize the employees who
have not yet acted in support of the strike To the
extent that Southwestern Electric Power Company
supra is inconsistent with our decision herein it is
hereby overruled
The Board continued
However while disabled employees need not of
firmatively disavow the strike action neither can
they participate in the strike without running the
risk of forfeiting benefits prospectively 4 For
all practical purposes any employee disabled or
sound who affirmatively demonstrates his support
of the strike by picketing or otherwise showing
public support for the strike has enmeshed himself
in the opening strike activity to such an extent as to
terminate his right to continued disability benefits 7
This result represents a fair accommodation be
tween the rights of employees and the interests of
employers For while employees have the protect
ed right to receive disability benefits without dis
avowing the strike an employer should not be obli
50 However Board Member Fanning dissenting stated
The Respondent takes the simplistic position that as wages under
the law are not continued for sinkers they are not continued for
those on continuing sick pay unless the recipients disavow the strike
In essence my colleagues agree This ignores Section 7 and the right
of an employee to join in or refrain from concerted activity Grant
ed these employees on sick leave were entitled to no wages once
their excused absences expired and they failed to return to work It
is a far cry for the Board to require that they disavow legal strike
action by their Union during their sick leave in order to receive their
sick pay Not only is it contrary to the statute but it lacks support in
Board precedent 1Southwestern Electric Power Co supra at 523 ]
51 Board Member Penello dissented stating
I find that the position advanced by the majority of the Board in
Southwestern Electric Power Co 216 NLRB 522 (1975) in which I
participated presents a correct analysis of the issues involved in de
termining the legality of the termination of disability benefits during
strikes [Emerson Electric Co supra at 1146 1
TEXACO INC
gated to finance a strike against itself as would be
in the case if we ordered Respondent to pay such
benefits for the period during which the disabled in
dividuals participated in strike activity
Accordingly we now hold that for an employer
to be justified in terminating any disability benefits
to employees who are unable to work at the start of
a strike it must show that it acquired information
which indicates that the employee whose benefits
are to be terminated has affirmatively acted to show
public support for the strike
* The employees actions in support of the strike however
may not be used to deprive them of any benefits for the time away
from work prior to their supportive action
7 We find that such affirmative support for the Union s
strike activities was also shown by evidence that Joseph Lawrence
during the period of his disability worked in the Union s office an
swenng telephone calls
That the facts and circumstances present in the instant
case are essentially similar to those contained in Emerson
Electric Co supra is clear from the record As did the
employer in Emerson Electric Co the Respondent noti
feed the Union that it would discontinue A&S benefit
payments to employees who would otherwise be receiv
ing them at a time when a strike at its facility was immi
nent but before there was any showing of how wide
spread the strike would be and admittedly before the
Respondent was aware that any of the employees who
were unable to work ratified or actively supported the
strike Furthermore the Respondent as did the employer
in Emerson Electric Co supra terminated these benefits
immediately on the commencement of the strike and
while in the Emerson Electric Co case this was done de
spite a union representatives clear protest that the indi
viduals who were unable to work were not participants
in any strike in the instant case it was done despite
Local 5-217 s stated position that the Respondent was
obligated under the collective bargaining agreement
then in force and effect to continue payment of A&S
benefits to employees on sick leave during the period of
the strike Moreover as similarly occurred in Emerson
Electric Co supra the Respondent based its belief that
employees on sick leave before a strike support it solely
on the basis that the strike would be effective because
the employees were union members 52 Significantly and
after referring to the above the Board in Emerson Elec
tric Co supra at 1143 stated
In these circumstances we agree with the Adminis
trative Law Judge that Respondents announcement
82 As will be more particularly set forth in Emerson Electric Co Y
NLRB 650 F 2d 463 (3d Cir 1981) the court of appeals modifying and
enforcing the Board s Order in the Emerson Electric Co case held in
effect that in the context of the is ue presented in that case an employer
can discontinue accrued accident and sickness benefits only where the
employees disability ceases so that a return to work is possible or where
such benefits have been exhausted assuming the employee is otherwise
entitled to these benefits under the existing accident and sickness benefit
plan while the Board held in the underlying case itself that affirmative
action in support of the strike by the employee on accident or sickness
leave was needed to justify the employer s action
335
of the termination of these benefits was intended to
coerce and restrain the protected union activity
with respect to the strike by imposing a sanction
against certain unit employees if others in the unit
engaged in strike activity
The Respondent s accident and sick benefit plan pro
vides that benefits are to be paid to injured or sick em
ployees who would otherwise be working The Respond
ent asserts correctly that injury or illness must be the
sole cause of the employees absence for entitlement to
benefits However the Respondent contends that since
the employees receiving A&S benefits on January 8
1980 when the strike began would have otherwise have
joined the strike or honored the picket line and remained
away from their jobs had it not been for their disability
they are not entitled to the continued receipt of such
benefits during the period of the strike because their
injury or sickness no longer constitutes the sole cause of
their absence 53
In support of this contention the Respondent points to
the circumstances found here that none of the concerned
employees informed it that they disavowed the strike and
would be working in the absence of their disability that
these employees admitted that had they not been dis
abled they would have either honored the picket line or
joined the strike on January 8 1980 and thereafter that
none of the employees protested the termination of their
A&S benefits or took steps to establish their eligibility at
the time and that several of the employees acknowl
edged that under the circumstances of their strike sup
port they did not consider themselves entitled to A&S
benefits during the strike
However again the similarity between the instant case
and Emerson Electric Co supra cannot be denied
Therefore as to the Respondents above contention Em
erson Electric is controlling That being the case an em
ployer may no longer require its disabled employees to
disavow strike action during their sick leave in order to
receive disability benefits as did the Respondent
The A&S benefits involved are accrued benefits These
benefits are deferred compensation for work already
done in contrast to wages The right to and the total
amount of benefits are tied to the duration of past serv
ices and the wages paid for them Although they are
conditioned on the employee suffering and continuing to
ss The Respondent in its brief states
Here the Union waived what the Board in Emerson Electric deemed
a Section 7 right [to refrain from declaring a position on a strike
while disabled and receiving A&S benefits] by agreeing to limit set
Clement to A&S benefits to employees whose absence is caused solely
by illness or injury and by agreeing to permit the Company to shift
the burden of proving entitlement to the employee claiming A&S
benefits These employees failed to establish their contractual right
to A&S benefits by refusing to disavow the strike and supporting it
from the inception to the extent they could and in the case of most
employees by failing to keep the company apprised that they were
unable to work due to illness or injury and by failing to provide evi
dence of illness routinely required by the Company They thereby
established for purposes of the Plan that they were on strike rather
than ill or injured The Company was not obligated and had no
reason to assume that the continuing unexplained absence of these
employees was caused solely by illness rather than by support for
the strike
336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
suffer a disabled illness or injury they do not depend on
any return to work or on any future services to the Re
spondent
As set forth above the Respondent contends that the
continued payment of benefits is conditional also on no
strike occurring because the applicable benefit plan de
fines disability as the condition of being unable to work
solely because of injury or illness It argues in substance
that here the employees would not have worked during
the strike because they were union members and because
the strike was fully effective Because they were not
absent from their jobs solely due to physical disability
the Respondent claims they are not entitled to benefits
However because the plan defines disability in terms of
the employee being absent from work because of illness
or injury the definition turns on the physical capacity to
carry on ones occupation only It does not make A&S
benefits dependent on the availability of work for that
particular employee nor the employees frame of mind
regarding the strike absent his disability
Moreover nothing in the record of this case indicates
that the benefit plan contemplated that employees who
were incapable of performing their usual occupations for
the Respondent would not be deemed disabled for the
purposes of receiving benefits Rather if an employee is
certified as disabled the only relevant consideration
within the period for which benefits are due is whether
the employee has again become able to work Therefore
the A&S benefits were accrued benefits and payable to
disabled employees within the period of the strike 54
Furthermore the Supreme Court held in NLRB v
Erie Resistor Corp 373 U S 221 (1963) the Board may
properly infer the existence of discriminatory motivation
or improper intent without evidence of illegal subjective
intent Where the employer has engaged in conduct that
is inherently discriminatory or distructive by its very
nature the employer must be held to intend the conse
quences which foreseeably and inescapably flow from it
The Supreme Court held additionally in NLRB v Great
Dane Trailers 388 US 26 (1967) that the Board may
find the necessary discriminatory motivation or improper
intent even if the employer shows its conduct had a
proper motivation so long as the impact of the discnmi
nation by the employer is inherently destructive of
Section 7 rights
Because of the above and the circumstances here
present namely that the Respondent declared that A&S
benefits would not be paid to employees who would oth
erwise receive them made at a time when a strike at its
Tulsa Oklahoma facility was imminent but before there
64 That the employees did not protest the Respondents termination of
their A&S benefits or that they acknowledged since they supported the
strike that they did not consider themselves eligible for such benefits
dunng the strike is of no moment Aside from the above rulings in Emer
son Electric Co supra which makes such circumstances irrelevant con
cerning this issue most if not all of these employees were employed by
the Respondent during a prior strike at the refinery and it is safe to
assume that the Respondent had also discontinued A&S benefits to em
ployees receiving them at the time of that strike Having knowledge of
the Respondents previous successful action in terminating such benefits
it is no wonder that they would believe that any protest would be futile
or that they actually were not entitled to such benefits because of the
strike
was any showing of how widespread the strike would
be and before the Respondent was aware that any of the
employees who were unable to work ratified or actively
supported the strike and that the Respondent terminated
these benefits immediately on the commencement of the
strike despite Local 5-217 s stated position that the Re
spondent was obligated to continue payment of A&S
benefits to employees on sick leave during the course of
the strike I find and conclude that the Respondents an
nouncement of the termination of these benefits was in
tended to coerce and restrain the protected union activi
ty with respect to the strike by imposing a sanction
against certain unit employees if others in the unit en
gaged in strike activity 55 I also find from the facts
present here and from the foregoing that the Respond
ent s contention that Local 5-217 waived these employ
ees Section 7 rights has no merit having no support in
the record evidence
Additionally the Respondents accident and sick bene
fit plan further provides that Under certain circum
stances the Company may require a medical certificate
from a physician before benefits are paid (Emphasis
added) The Respondent asserts that thereby Texaco
has reserved the right under the plan to terminate A&S
benefits requiring the employee to come forward and
present satisfactory evidence of entitlement to benefits
It contends that because several of the employees receiv
ing A&S benefits at the time the strike began on January
8 1980 failed to do so it could lawfully terminate such
payments to them However the evidence does not sup
port the Respondents contention
At the outset it is clear that but for the strike the em
ployees receiving A&S benefits at the time would have
continued to do so without the need at least until their
disability ended and they returned to work for any writ
ten medical certification and without regard to any other
consideration but their continued disability Moreover
several of these employees testified to the discretionary
nature of the Respondents requirement for such medical
certification to support the receipt of A&S benefits and
the language of the plan itself supports this albeit it ap
pears that the employees as a matter of course submitted
medical statements to support their absences 56
Despite the above and Brown s testimony that it was
the Respondents practice to require the submission of
medical certification by employees to support their enti
dement to A&S benefits the evidence indicates that the
Respondent did not automatically discontinue such pay
ments to employees who failed to comply Moreover it
should be noted that the Respondent did require medical
certification to validate all absences of 3 days or more
requiring the employee to come forward with such docu
mentation and Brown tended to interchange this manda
tory requirement with the plan s requirement of a medi
cal certificate if the Respondent so requires it The letter
of necessity infers a request by the Respondent to the
ss Emerson Electric Co supra enfd 650 F 2d 463 (3d Cir 1981) Also
see Walter Motor Truck Co 256 NLRB 1059 (1981)
56 Their actions in this respect seem tended more to meet the require
ment of justifying their absences in order to retain their jobs rather than
directed at any prerequisite for entitlement to A&S benefits
TEXACO INC
employee concerning medical certification supporting
A&S benefits entitlement and contrary to Browns tests
mony 57 Significantly the record is devoid of any evi
dence showing that any disabled employee was ever
denied A&S benefits for failure to provide a written
medical certificate of disability Be that as it may the
evidence shows that had the Respondent requested medi
cal certification to substantiate the disability of any of
the employees on accident or sick leave when the strike
began such certification would have been forthcoming 58
From all the above I am led inexorably to the belief
that as admitted at least in part by the Respondent the
strike was the real cause of its termination of A&S bene
fits to bargaining unit employees receiving them at the
time of the strike and that this additional contention is an
afterthought in view of the Board s decision in Emerson
Electric Co supra
The Respondents answer additionally raised as a de
fense the strike Settlement and Memorandum of Agree
ment where Local 5-217 for various considerations
agreed to withdraw the unfair labor practice charges re
lating to the Respondents failure to pay the A&S plan
benefits to employees within the bargaining unit during
the strike The Respondent contends that because of this
agreement it was discharged for any and all obligations
if any to pay A&S plan benefits to employees covering
the period of the strike While no reference was made
to this in the briefs filed here nor motions made to dis
miss based thereon still the Respondent offered evidence
at the hearing in this connection Be that as it may I
reject this defense as unmeritorious
The Board acts in the public interest to enforce public
not private rights 59 By well established principle pri
vate contracts may not be used to legitimate unfair labor
practices nor to divest the Board of jurisdiction over
such practices 60 As the Supreme Court stated in J I
Case Co 321 U S 332 (1944) [W]herever private con
tracts conflict with its function they obviously must
yield or the Act would be reduced to a futility Id at
337
Further Section 10(a) of the Act explicitly provides
that the Board s power to remedy unfair labor practices
57 It is interesting to note the following language in R Exh 3 New
Employee Orientation outlined which states
5) Absences I Sickness
a Three (3) scheduled workdays or more employees must submit
medical certificate validating the absence (Emphasis added )
11) Benefit Plans (continued)
I Accident and Sick Benefit Plan
[b]3 Medical certification required for benefits
While Brown testified as indicated to a strict mandatory requirement of
medical certification as a condition of eligibility for A&S benefits the
employees involved testified to a more flexible and less stringently en
forced requirement
ss Several employees testified that they obtained medical certificates
from their doctors carried it around with them on their person or re
tamed them at home and discarded them when the Respondent failed to
request the document
9 National Licorice Co v NLRB 309 U S 350 (1940) Amalgamated
Utility Workers v Consolidated Edison Co 309 U S 261 (1940) Agwilines,
Inc P NLRB 87 F 2d 146 (5th Cir 1936)
60 NLRB v C & C Plywood Corp 385 U S 421 ( 1967) also see Elec
Ironic Workers IUE Local 613 v NLRB 328 F 2d 723 (3d Cir 1964) Ma
chmists Lodge 743 v United Aircraft Corp 337 F 2d 5 (2d Or 1964) cert
denied 380 U S 908 (1965)
337
shall not be affected by any other means of adjustment
that has been or may be established by agreement
law or otherwise The policy reflected in the precedent
and expressed in Section 10(a) of the Act prevents a
party from engaging in unfair labor practices that may
coerce a favorable labor agreement and then insulating
itself from Board sanctions by exculpatory provisions in
that agreement Accordingly the parties cannot by con
tractual agreement divest the Board s function to operate
in the public interest 61
The Respondents other contentions that The Rule in
Emerson Electric is Unreasonable and Conflicts with
Well Established Principles of Labor Law and that
Even Under Emerson Electric the Company was Privi
leged to Terminate All A&S Benefits at the Strike s In
ception have been either considered by me or are ne
gated and disposed of by the Board s ruling in the Emer
son Electric Co case and the U S Court of Appeals for
the Third Circuit decision in the enforcement proceed
ing 62
In view of all the foregoing I find and conclude that
the Respondent violated Section 8(a)(3) and (1) of the
Act when it terminated A&S benefits to employees who
were physically unable to work after January 8 1980
because other employees actively employed at the Re
spondent s Tulsa Oklahoma facility went out on strike
The General Counsel contends that Eddy s A&S bene
fits like those of the other employees receiving such
benefits at the time the strike commenced were terms
nated solely as a result of Local 5-217 going on strike on
January 8 1980 The Respondent denies this and asserts
that There simply is no basis upon which the termina
tion of Forrest Eddy s benefits can be related to the
strike that subsequently occurred It contends that
Eddy s A&S benefits were terminated because he refused
to return to work for restricted gate duty although di
rected to do so after the Respondent had been apprised
by Eddy s doctor that he was physically able to accom
push this work
Regarding Forrest E Eddy the evidence shows that
Eddy was receiving A&S benefits prior to January 7
1980 due to an industrial accident However unlike the
other employees whose A&S benefits were terminated
on January 8 1980 admittedly because of the strike his
benefits were terminated on January 7 1980 because of
his refusal to return to work on that day an alleged
reason offered by the Respondent independent of the
strike
Direct evidence of a purpose to discriminate is rarely
obtained especially as employers acquire some sophisti
cation about the rights of their employees under the Act
but such purpose may be established by circumstantial
evidence inferred from the record as a whole 63 A
6 Also see Emerson Electric Co v NLRB supra enfd as modified 650
F 2d 463 (3d Cir 1981)
82 Emerson Electric Co supra enfd Emerson Electric Co Y NLRB
supra
83 Parkvtew Acres Convalescent Center 255 NLRB 1164 (1981) Health
International 196 NLRB 318 (1972) Corrie Corp v NLRB 375 F 2d 149
152 (4th Cir 1967) NLRB v Neuhoff Bros 375 F 2d 372 374 (5th Cir
1967) Shattuck Denn Mining Corp v NLRB 362 F 2d 466 470 (9th Cir
1966) Hartsell Mills v NLRB 111 F 2d 291 293 (4th Or 1940)
338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
review of the entire record convinces me that Forrest E
Eddy s A&S benefits were terminated on January 7
1980 because of the strike engaged in by fellow employ
ees on January 8 1980 as were the other employees who
had their A&S benefits discontinued the very next day as
previously set forth
That the Respondent was aware on January 7 1980
that there was a strong possibility that a strike could
occur on January 8 1980 if progress in the bargaining
negotiations pursuant to the reopener clause was not
made before the January 8 1980 deadline can reasonably
be inferred from the evidence presented The Interns
tional Union s representative McGough had apprised
the Respondents representatives at prior negotiating ses
sions of this possibility Although Brown asserted that he
believed no strike would ensue if the deadline was
reached on January 8 1980 basing this belief on the Re
spondent s prior experiences during two previous strikes
by the Union at its Tulsa Oklahoma plant still the evi
dence clearly indicates that the Respondent was never
theless cognizant of the strike possibility 64
In this context and according to Eddy s uncontradict
ed testimony the Respondent on January 7 1980 sought
to call in all employees on accident or sick leave who
could be medically released by their doctors or other
wise for return to work before a strike commenced 65
The Respondent in its brief contends that the record
itself demonstrates the absurdity of Eddy s contention
that he was called back to work because of the strike It
continues
Only one employee was deemed sufficiently
healthy to assume the single position that needed to
be filled The record hardly demonstrates a mad
scramble by the Company to call back the masses
before they could go out on strike Rather the call
14 Brown submitted that Texaco always p epared tself du ng negot a
tions for the advent of a strike because it could not leave such prepara
tions to the last minute Additionally the evidence shows that the Re
spondent as early as the meeting held on January 5 1980 discussed with
Local 5-217 the orderly shutdown of a part of the facilities at the re
finery before official notification by the Union on the afternoon of Janu
ary 7 1980 that a strike would ensue on January 8 1980
65 Eddy testified that when he spoke to the Respondents plant nurse
Cathleen Bates on January 7 1980 about the Respondents direction to
him to return to work issued by Pardue and Brown she advised him that
they were calling back all the people that they could call back because
of the strike The Respondent dismisses Eddy s testimony as merely a
hearsay assertion and contends that Leaving aside the rather over
whelming logical improbability of the Company so informing Eddy if it
were acting on that basis the record itself demonstrates the absurdity of
Eddy s contention I do not agree
Significantly Cathleen Bates did not testify to contradict this testimony
and the Board has consistently held that where relevant evidence is not
produced by a party and the failure not satisfactorily explained the trier
of the facts may draw an inference that such evidence would be unfavor
able to that party See Publishers Printing Co 233 NLRB 1070 (1977)
Martin Luther King Sr Nursing Center 231 NLRB 15 ( 1977) Broadmoor
Lumber Co 227 NLRB 1123 (1977) Fruehauf Trailer Co I NLRB 68
(1935)
Further that Bates would have made such a statement is not without
the realm of possibility because she was the plant nurse not a manager or
supervisor and it can be readily assumed from the evidence not so
knowledgeable in labor relations law as to be aware of any significance in
her remarks She just might conceivably have been relaying to Eddy the
Respondents instructions to her concerning all the employees on acci
dent or sick leave
to work of Eddy was carried out in a routine
manner in response to a limited need The director
of personnel John Brown did not even become
aware of the matter until Eddy refused to report If
the Company were trying to call back a disabled
employee before an anticipated strike in order to
avoid any obligation of paying those benefits during
the strike it would hardly have called back Forrest
Eddy an employee whose industrial injury made
him eligible in the Company s eyes for benefits
without regard to whether a strike occurred Thus
even if the Company had intentionally called Eddy
back to work while knowing he was incapable of
performing the requested work that action would
have been unrelated to any anticipated strike-
under the Company s stated procedures a strike
could not have affected Eddy s A&S benefits Cer
tainly the Company would not have retaliated
against Eddy if it was seeking to penalize the
Union Eddy was the only bargaining unit employee
in the plant who had not authorized dues checkoff
As such the Company s actions with respect to
Eddy as a matter of law could not be construed as
an unfair labor practice
Let us examine the above contention in the light of the
evidence present
Assuming the correctness of the Respondents asser
tion that Eddy was found to be the only employee
deemed sufficiently healthy to fill the gatekeepers job
this would presuppose investigation of the medical status
of the other employees on accident or sick leave and
could be construed as supportive of Eddy s testimony
concerning Bate s statement to him that the Respondent
was seeking to return to work as many of the disabled
employees receiving A&S benefits as it could because of
the strike 66 That the Respondent assumed that all the
employee members of Local 5-217 in the appropriate
bargaining unit would support the strike is clear from the
evidence That the only bargaining unit employee who
was not a union member was ordered to return to work
before the strike began seems more than coincidental 67
Of compelling significance are the circumstances them
selves surrounding this incident as evidenced in the
record and the reasons given by the Respondent for its
order to Eddy to return to work immediately Brown
testified that after receiving medical clearance Eddy was
contacted by telephone and requested to report for gate
duty that very day January 7 1980 Eddy testified that
Pardue had called him and told him to report to work
the following morning January 8 1980 In crediting the
testimony of Eddy I note the contradictory nature and
evasiveness of parts of Brown s testimony concerning
66 The Respondent contends in the alternative that this is evidence that
it sought to find an employee on accident or sick leave who could be
medically released for light duty to work this particular job thus the
checking of their medical status that day
64 If the Respondent planned to discontinue A&S benefits to as many
of the employees in the bargaining unit as a threatened or actual affirma
five action against the Union s strike action then as concerns Eddy this
would have been the only way it could have reasonably proceeded
against him or his A&S benefits would have continued despite the strike
TEXACO INC
this occurrence and the disparity between the testimony
of the Respondents own witnesses I also note the failure
of the Respondent to call several witnesses under its con
trol without adequate excuse who could shed light on
this incident as will be set forth
Brown first testified that he had called Eddy on Janu
ary 7 1980 and told him to report to work immediately
He subsequently testified that it was Pardue who had ini
tially telephoned Eddy which he knew nothing about
until Pardue informed him that Eddy had refused to
come to work whereupon Brown became involved in
the conversation then speaking to Eddy himself Al
though the preceding is of minor importance significant
ly Brown also testified regarding the content of his con
versation with Eddy the extent of which was I called
Mr Eddy and instructed him to report immediately on
January 7 1980 68 However another of the Respond
ent s witnesses Gastinger testified that he heard Brown
say that there was an opening on the gate that requires
very little strenuous activity at all that your doctor
Dr Dunlap has concurred with Dr Stivers that you
should be able to do the work and that We have a
policy that we offer a person work that he is capable of
doing If he refuses we will sever your A&S benefits
and even subject you to possible discipline because it is a
form of insubordination most of which Brown in his
own testimony never acknowledged having said Of ad
ditional significance is the failure of Pardue to testify re
garding what he told Eddy about Eddy s return to work
i e what date Eddy was to report back to the refinery
etc The Board has often held that a party s failure to
produce a witness whose testimony is material and rele
vant to an issue in the case gives rise to an inference that
such evidence would be unfavorable to that party 69
Furthermore Eddy s account of what occurred is en
hanced by its reasonableness and the failure of Pardue to
contradict it Eddy testified that Pardue had instructed
him to return to work the following day and Eddy an
swered that he could not do so still being disabled de
spite his medical release by Dr Stivers He stated that he
telephoned Pardue the next day on January 8 1980 and
advised Pardue that he was still unable to return to
work No evidence contradicting this was given 70
Moreover the Respondents concern with the date that
Eddy was instructed to return back to work can only
have any significance if the Respondent was sensitive to
whether it occurred before or after it received official
notification from Local 5-217 regarding the actual date
of the strike and I find Brown s testimony that the date
was January 7 1980 instead of January 8 1980 support
ing the inference that the strike was the reason for its or
dering Eddy to return to work This way either his
actual return to work or his refusal to do so could form
18 Eddy s version of his conversation with Brown is close to this as
concerns brevity Eddy related that Brown had told me that they had
gotten a release for me to come to work that I had better be there or
else and hung up the phone
ea See the cases cited in fn 65
"I I am not unaware that Brown requested the Respondents payroll
department on January 7 1980 to discontinue A&S payments to Eddy
because of his refusal to return to work (R Exh 1) However in review
ing the working of the document accomplishing this it is not inconsistent
with Eddy s testimony
339
the basis for the Respondent discontinuing his A&S ben
efits during the period of the strike
Additionally the Respondent gave as its reason for or
dering Eddy to return to work immediately although ad
mittedly it had another employee manning the gate that
morning that it wanted to give Eddy the opportunity to
familiarize himself with the gate duties Brown also testi
feed that this immediacy was due to Pardue having in
formed him that we needed a gateman as soon as we
could get him because
we were looking at the rest of the week of January
7th We anticipated the next week-we
couldn t be certain-but one of the regular gatemen
was supposed to go to the hospital As it turned out
he didn t but you have to plan those things a little
bit ahead of time
However Eddy testified uncontradictedly that he had
previously worked at this gate and was fully familiar
with its operations and the duties required of the gate
man As far as I am concerned and as the record indi
cates it was never satisfactorily nor clearly explained
why there was such an urgency requiring Eddy to report
immediately to the refinery because the gate was not un
attended and this coupled with all the foregoing leads
me to the belief that his return to work was dictated by
the prospect of the strike It is also notable that the Re
spondent reinstated Eddy s A&S benefits immediately on
the settlement of the strike and its termination
The General Counsel in his brief states
Eddy was called solely as a measure in prepara
tion for a strike His alleged refusal to return was
considered an act of support for the Union despite
his physical condition at that time The fact of the
matter is that Eddy was physically unable to return
to work As a result he telephoned Pardue and re
ported that he was unable to work the morning of
the 8th It was not until sometime after the strike
ended that Eddy was formally released to return to
work at which time he did 16 Consequently Eddy
was treated in the same manner as all other employ
ees on A&S leave who were unable to return imme
diately after the strike ended This action (reinstate
ment of A&S benefit payments upon termination of
the strike) clearly supports the General Counsel s
contention that Eddy was considered a supporter of
the strike and not an employee who refused to
return to work Accordingly it is contended the
credible evidence establishes that Eddy s A&S bene
fits were terminated solely because of Local 5-217 s
strike
18 Note also that contrary to its position as to the basis for ter
minating Eddy s A&S benefit payments his payments were re
sumed after the strike ended as was the case with all unit employ
ees still on A&S leave
340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
From all the foregoing I agree with the General Coun
sel s above contentions 71
The complaint further alleges and the General Counsel
contends that the Respondent violated the Act when it
treated employees on A&S leave similar to strikers when
computing the amount of pension benefits employees lost
as a result of the strike thereby reducing the retirement
benefits of these employees Under the Respondent s
group pension plan an employee having over 1 year of
service would be credited with 1 month of benefit serv
ice for each calendar month that the employee is not
absent from work with less than full pay for 15 days or
more effective June 30 1976 and thereafter 72 Howev
er if an employee is absent because of illness or accident
receiving the equivalent of full pay the employees pen
sion contributions paid by the Respondent would con
tinue and the employee would earn pension benefit serv
ice during this period 73 There is no question in my mind
that the previous discussion concerning A&S benefits
would be similarly applicable to pension benefit service
credit regarding those employees who were absent be
cause of accident or illness during the period of the
strike 74
Therefore those employees absent from work by
reason of accident or sickness and whose physical dis
abilities continued through the strike and who were enti
tied to A&S benefits equivalent to full pay thereby
meeting the conditions required under the Respondent s
group pension plan concerning the fulfillment of the req
ufsite number of working days in a month are entitled to
receive the appropriate pension benefit service credit for
this period The Respondents denial of these benefits
because of the strike to employees entitled thereto con
stituted additional unlawful conduct I therefore find
and conclude that the Respondent also violated Section
8(a)(3) and (1) when it failed to grant the appropriate
pension service credit for the period of the strike to
those employees on accident or sick leave entitled to
such credit
Additionally while the complaint alleges that the Re
spondent also violated Section 8(a)(3) and (1) of the Act
by reducing the vacation credits of employees disabled
during the period of the strike the General Counsel as
serted in his brief
71 Even assuming arguendo that Eddy s refusal to return to work on
January 8 1980 was also a cause of the Respondents termination of his
A&S benefits during the period from January 7 1980 through March 30
1980 under the Boards ruling in Wright Line 251 NLRB 1083 (1980)
which would be applicable here as analogous I would find that the Gen
eral Counsel had made a prima facie showing to support the inference
that protected conduct the strike was a motivating factor in the Re
spondent s decision to discontinue his benefits and that the Respondent
had failed to meet its burden of proof to demonstrate that the same action
it took against Eddy that of terminating his A&S benefits would have
taken place even in the absence of the protected conduct the strike
72 Jt Exh 6
7s Ibid
74 From the evidence presented here the conclusion is inescapable that
the Board s holding in Emerson Electric Co supra is as applicable to
pension service credit as it is to A&S benefits regarding employees on
disability during the period of the strike the difference between these
types of benefits being the requirements for eligibility or accrual under
the respective plans
The formal text of the vacation plan establishes
that vacation periods vary in length on years of
service Vacations may be reduced on a prorated
basis due to excessive absenteeism the preceding
year for vacation time is directly related to attend
ance in the past calendar year It further states that
certain specified absences would not be considered
when calculating any reductions [Under the plan]
absences due to A&S leave are not included The
record evidence establishes that as a result of the
absences due to the strike all hourly paid employees
(unit employees) lost one day of vacation 76 How
ever the reason for the reducing was due solely to
the employees not having worked and not because
of the strike Consequently it does not appear that
employees on A&S leave would have been treated
any differently had there not been a strike and
would have lost that one day of vacation in either
case It therefore appears there is insufficient evi
dence to establish a prima facie violation regarding
the application of vacation policies by Texaco
against employees on A&S leave during the period
of the strike Accordingly the General Counsel
moves to withdraw this allegation
What the Respondents vacation actually pro
vides is
The initial vacation for which an Employee
qualifies will be reduced on a prorated basis by
absence preceding his or her Qualifying Date
however absences due to Temporary Layoff
jury duty time lost not in excess of 180 consecu
tive days on account of industrial accident and
absence for other reasons totalling 26 days or
less shall be disregarded 76
While there is some doubt in my mind whether the Re
spondent also treated employees on A&S leave similarly
to the strikers for purposes of vacation time accruals I
agree with the General Counsel that there is insufficient
evidence here to establish a prima facie violation con
cerning this I therefore will grant the motion of the
General Counsel to withdraw this allegation
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section
III above found to constitute unfair labor practices oc
curring in connection with the operations of the Re
spondent described in section I above have a close inti
mate and substantial relationship to trade traffic and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof
76 Williams testified that she was advised that she had lost 3 days vaca
tion because of her maternity leave
76 See Jt Exh 7
TEXACO INC 341
V THE REMEDY
Having found that the Respondent has engaged in cer
tam unfair labor practices in violation of Section 8(a)(3)
and (1) of the Act I shall recommend that it cease and
desist and take certain affirmative action designed to of
fectuate the policies of the Act
As set forth in Emerson Electric Co supra at 1143 the
Board held
However while disabled employees need not of
firmatively disavow the strike action neither can
they participate in the strike without running the
risk of forfeiting benefits prospectively 4 For
all practical purposes any employee disabled or
sound who affirmatively demonstrates his support
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 7
The employees action in support of the strike however may
not be used to deprive them of any benefits for the time away from
work prior to their supportive action
7 We find that such affirmative support for the Union s
strike activities was also shown by evidence that Joseph Lawrence
during the period of his disability worked in the Union s office an
swenng telephone calls
However in Emerson Electric Co v NLRB 650 F 2d
463 (3d Cir 1981) the US Court of Appeals for the
Third Circuit in enforcing the Board s Order found that
there was no basis for the Boards decision that A&S
benefits can be withheld for the period after the employ
ees actively participated in the strike or showed public
support therefore and the court thus modified the
Board s Order accordingly 77
In view of the foregoing and it having been found that
the Respondent unlawfully withheld accident and sick
ness benefits from employees referred to in this deci
sion 78 it is recommended that the Respondent be or
dered to pay each of them whatever accident and sick
ness benefits were due them from January 8 1980 79 to
77 There the court stated at 474
Obviously the employer need not continue to pay S and A bene
fits once the employee is no longer disabled Active participation in
strike activity may be telling or even presumptive evidence of ces
sation of disability However whether such activity in fact reflects
the end of the disability period may depend on the nature of the ac
tivity and the physical demands of the particular employees job
Such details can be resolved in the compliance proceeding On the
other hand use of the mere expression of public support for the
strike by a disabled employee such as one still in the hospital as the
basis for termination of benefits is inherently destructive of the em
ployee s section 7 rights
Accordingly the Board s decision to end benefits on the basis of
active participation or public support for strike activity cannot stand
It is internally inconsistent with the Board s own rationale in this
case It vanes from the Board s policies as set out in previous Board
decisions and frustrates effectuation of section 7 rights
78 Bobby R Dugger Larry S Eckelstafer Darel R Elmore Law
rence Eubanks Don A Farris Leonard M Hardison Donald H Hof Jr
Daniel W Holliday Oran L Kelly Eston M Newton Bobby R Phipps
Ida Pearl Williams and Forrest E Eddy
7e Concerning Forrest E Eddy his A&S benefits were discontinued
on January 7 1980 therefore his benefits would be computed from Janu
ary 7 rather than January 8 1980
the date of their recovery or to the date their benefits ex
pired whichever comes first with interest 80
It having also been found that the Respondent unlaw
fully reduced the retirement benefits of the employees re
ferred to in this decision81 by failing to grant them pen
sion service credit for the period of the strike where they
were entitled to such credit pursuant to the Respondent s
group pension plan it is recommended that the Respond
ent be ordered to grant and credit each of them with
pension service credit as provided for under this plan in
cluding the period from January 8 1980 82 to the date of
their recovery or the expiration of their A&S benefits as
applicable
CONCLUSIONS OF LAW
1 The Respondent Texaco Inc is an employer en
gaged in commerce within the meaning of Section 2(2)
(6) and (7) of the Act
2 Oil Chemical & Atomic Workers Internatioanl
Union Local 5-217 is a labor organization within the
meaning of Section 2(5) of the Act
3 On January 8 1980 the Respondent notified em
ployees that accident and sickness benefits for bargaining
unit members would be discontinued upon the com
mencement of a lawful strike and thereby interfered with
its employees rights under the Act in violation of Sec
tion 8(a)(1) of the Act
4 On January 8 1980 83 and thereafter during the
period of the strike the Respondent discontinued acci
dent and sickness benefits for employees who were in the
bargaining unit and who had been receiving said benefits
prior to a lawful strike engaged in by other employees
represented by Local 5-217 and by such conduct the Re
spondent interfered with its employees rights to engage
in protected concerted and union activities thereby vio
lating Section 8(a)(3) and (1) of the Act
5 By failing and refusing to credit employees on acci
dent or sick leave during the period of the strike with
appropriate pension service credit although they were
entitled thereto and solely because of the strike the Re
spondent interfered with its employees rights to engage
in protected concerted and union activities thereby vio
lating Section 8(a)(3) and (1) of the Act
6 The Respondent did not violate Section 8(a)(3) and
(1) of the Act by reducing the vacation benefits of the
employees involved
7 The unfair labor practices found above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act
[Recommended Order omitted from publication ]
80 The amount due to each employee would be lessened by any pay
ments made to them and attributable to the A&S benefits due during this
period that the Respondent subsequently paid to them There is some tes
timony by Brown in the record that this was done concerning some of
these employees
81 Fn 78 supra Concerning Eddy the applicable date would be Janu
ary 7 1980
82 The date for Eddy would be January 7 1980
8' Regarding Forrest E Eddy his date would be January 7 1980