Texaco, Inc. v. N.L.R.B.
| Decision Date | 21 March 1983 |
| Docket Number | No. 82-4054,82-4054 |
| Citation | 700 F.2d 1039 |
| Parties | 112 L.R.R.M. (BNA) 3206, 96 Lab.Cas. P 14,145, 4 Employee Benefits Ca 1290 TEXACO, INC., Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Randall N. Finley, J.M. Mitchell, Houston, Tex., for Texaco, Inc.
Elliott Moore, Deputy Associate Gen. Counsel, Ralph Simpson, N.L.R.B., Washington, D.C., for N.L.R.B.
Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Before JOHNSON, WILLIAMS and JOLLY, Circuit Judges.
This case involves our review of a finding of unfair labor practices against an employer who cut off accident and sickness benefits being paid to two employees when the union staged an economic strike. The disabled employees had taken no position either in favor of or against the strike at the time benefits were cancelled.
The International Union of Oil, Chemical and Atomic Workers represented approximately 125 employees at a Texaco Oil Company facility in El Paso, Texas. On January 8, 1980, the Union commenced a strike at the facility which lasted until about March 29, 1980. The employer described this strike as 100% effective, which means no one from the bargaining unit went to work during the strike.
However, not all the workers were necessarily committed to the strike at its inception. Leon J. Dove, a Texaco employee for 26 years, had been out on sick leave since December 20, 1979 for gall bladder surgery. He was given a final medical release to return to work effective January 14, 1980, according to the findings of the Administrative Law Judge. 1 When his disability ended, the strike was already underway. Dove neither crossed nor joined the picket lines when his disability ended. However, he did work at the Union Hall to assist the strike. Dove evidently expressed no opinion concerning the strike while he was disabled.
Antonio O. Dominguez had worked for Texaco since 1946. Before the strike began, he was hospitalized for complications of diabetes. The record shows that his doctor authorized his return to work on February 18. Rather than returning to the struck Texaco facility, Dominguez joined the picket line.
Disabled workers like Dove and Dominguez receive accident and sickness (A & S) payments from Texaco under the terms of a collective bargaining agreement. The amount and duration of the payments varies with seniority. On the eve of the January strike, Texaco announced its policy on A & S payments in the event of a strike. Payments would continue to workers who were unable to work due to a work-related accident, but would be cut off to workers who were victims of sickness or non-industrial accidents. Dove and Dominguez lost their A & S benefits on January 8 when the strike began.
In June, 1980, Dove and Dominguez filed an unfair labor practice complaint with the NLRB complaining that Texaco had cut off A & S benefits in retaliation against the strike. The NLRB concluded that the employer committed an unfair labor practice within the meaning of section 8(a)(1) and (3) of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 158(a)(1), (3), and ordered Texaco to pay A & S benefits and interest to the two employees. Texaco petitions this Court for review, and the NLRB cross-appeals for enforcement. We enforce the Board's order.
An employer commits an unfair labor practice if it undertakes measures to retaliate against a valid economic strike of its workers. 29 U.S.C. Sec. 158. Yet an employer is also not required to "finance a strike against itself." General Electric Company, 80 N.L.R.B. 510 (1948). These competing considerations are the basis of the universal rule that striking employees are not paid wages. Employers may be prohibited, however, from cutting off benefits which are accrued, such as vacation pay or sick leave. NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967) (vacation pay); Local Union No. 186, United Packinghouse Food and Allied Workers v. Armour and Co., 446 F.2d 610 (6th Cir.1971), cert. denied, 405 U.S. 955, 92 S.Ct. 1170, 31 L.Ed.2d 231 (1972) (); Indiana & Michigan Elec. Co., 236 N.L.R.B. 986 (1978), enf'd without opinion, 610 F.2d 812 (4th Cir.1979) (leave pay). In the case before us, Texaco contends that its A & S payments are not accrued and are the equivalent of wages, so that they properly could be discontinued when the strike began. The employees argue that A & S benefits are accrued rights that may not be terminated automatically.
The A & S benefits at issue before this Court do not fall easily into the categories of accrued benefits or wage equivalents. They resemble other accrued benefits such as sick leave or vacation pay in that the available benefits increase with seniority and do not depend on a workplace-related accident to be payable. Yet they also have characteristics of wages: the plan is noncontributory, and the funds involved are not redeemable upon termination of employment. They are accrued in the sense that benefits are payable after a certain length of service, but the benefits are paid only for the period of disability and only as a substitute for wages. If an employee were disabled while on vacation pay, for example, a switch from vacation pay to A & S benefits would not take place until after the pre-scheduled vacation had ended.
The NLRB found that the A & S benefits resembled accrued benefits in the sense that benefits were payable when a sickness or accident occurred. We find ample evidence in the record to support this interpretation. Yet Texaco contends that even if the benefits were accrued, Texaco was justified in terminating the payments because the employees failed to come forward and present satisfactory evidence of entitlement to benefits. Satisfactory evidence from the employer's perspective includes an affirmative This dispute states the fundamental issue: may an employer infer support for a strike from a disabled worker's silence and use that support as justification for cutting off A & S benefits? Until recently, the NLRB permitted an employer to presume support for strike activity from a worker's silence. In Southwestern Electric Power Co., 216 N.L.R.B. 522 (1975), the Board had taken the position that an employer may reasonably believe that employees on sick leave when a strike begins support that strike solely on the basis that the strike is effective and the employees are union members. Texaco relies upon this reasoning, and points to the 100% effectiveness of the 1980 strike, the union membership of Dove and Dominguez, and their support for a prior strike in 1969, to justify an inference of sympathy for the 1980 strike.
disavowal of support for the strike. The employees argue that no such affirmative statement against the strike should be necessary because a worker should have the right to remain silent regarding the strike while he or she is disabled.
However, the NLRB reversed its 1975 decision on which Texaco relies in Emerson Electric Co., 246 N.L.R.B. 1143 (1979), enf'd as modified sub nom. E.L. Wiegand Div. v. NLRB, 650 F.2d 463 (3d Cir.1981), cert. denied, 455 U.S. 939, 102 S.Ct. 1429, 71 L.Ed.2d 649 (1982). As in the case before us, the employer in Emerson Electric terminated payment of sickness and accident benefits to disabled employees at the inception of a strike by the employees' bargaining unit. The NLRB found that the termination was an unfair labor practice because of its interference with the employees' rights under Section 7 of the NLRA, 29 U.S.C. Sec. 157, to assist labor organizations or to refrain from such activities. Adding a requirement on the eve of a strike that sickness and accident benefits were payable only upon relinquishment of an employee's right to silence was not consistent with the goals of the National Labor Relations Act. To the extent that this reasoning was inconsistent with Southwestern Electric, the Board overruled the earlier case. 2 The Board has followed Emerson Electric in subsequent cases, e.g., Conoco, Inc., 265 N.L.R.B. No. 116, NLRB Dec. (CCH) p 15,444 (Dec. 10, 1982), appeal docketed, No. 83-1068 (10th Cir. Jan. 18, 1983).
Texaco, in effect, is asking us to overturn the Board's holding in Emerson Electric and return to the previous NLRB position enunciated in Southwestern Electric. It contends that the NLRA does not prohibit an employer from presuming that disabled union members would be on strike but for their disability, and that the employer should have no duty to pay wage substitutes to these workers. However, Texaco is exaggerating the severity of the Board's position. The NLRB is not seeking to require A & S payments to all workers in all circumstances. The Board merely takes the position that the employer may not presume support for a strike from a disabled worker's silence.
Our inquiry into administrative actions is limited in order to show deference There is adequate support in the statute for the agency's interpretation. The NLRA clearly gives workers the right to express an opinion or to remain silent regarding strikes and other valid union activity. 3 Just as there may be no retaliation for protected union-related speech, there may be no retaliation for union-related silence. Whether the benefits are accrued or unaccrued has nothing to do with this result. The NLRB's decision which we enforce merely holds the company cannot cut off such benefits by presuming participation in a strike when none has been shown.
to the special expertise of the agency. NLRB v. Walton Mfg. Co., 369 U.S. 404, 82 S.Ct. 853, 7 L.Ed.2d 829 (1962). The Board's holding in this case is not capricious or arbitrary, even if the Board did abandon an earlier ruling. In Re Permian Basin
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