# Texaco, Inc. v. National Labor Relations Board > Court of Appeals for the Fifth Circuit · March 21, 1983 · 700 F.2d 1039 URL: https://www.frixlaw.com/law-library/cases/9470319 ## Case - **Full name:** TEXACO, INC., Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** March 21, 1983 - **Citations:** 700 F.2d 1039; 4 Employee Benefits Cas. (BNA) 1290; 112 L.R.R.M. (BNA) 3206; 1983 U.S. App. LEXIS 29506 - **Precedential status:** Published - **Opinion:** Dissent by Jolly - **Judges:** Johnson, Williams, Jolly - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9470319 ## How later opinions describe it (automated extraction) - observing that "[t]he NLRA clearly gives workers the right to express an opinion or to remain silent regarding strikes and other valid union activity" ## Opinion text E. GRADY JOLLY, Circuit Judge, dissenting: Because I cannot agree that the benefits here are “accrued” and because I cannot accept the conclusion that the denial of the continued payment of sick benefits is any more “inherently destructive” of employee rights than the denial of wages, and because I do not understand how bad health elevates Section 7 rights, I dissent. I start from the premise that there is no other principle more free from doubt in the field of labor law than that strikers are not entitled to be paid wages during the course of a strike. The premise that supports this truism is equally applicable to all benefits which are not “accrued,” i.e., vested in the employee. 1 General Electric Co., 80 N.L. R.B. 510 (1948); Towne Chevrolet, 230 N.L.R.B. 479 (1977); Ace Tank and Heater Co., 167 N.L.R.B. 663 (1967). The majority, upon examining the benefits here in question, admits that, even from its point of view, they “do not fall easily into the categories of accrued benefits or wage equivalents.” It goes on to candidly admit, however, that the benefits are paid “only as a substitute for wages.” The employee has no right to receive any payment at the end of the year for unused sick leave, nor does he have any right to claim payment for unused sick leave upon termination of his employment. The striking employee has no right to sick benefits if his illness commenced during the course of the strike. The employee cannot claim the benefits while he is on vacation. The plan is non-contributory and paid solely by the employer. The employer specifically retains the right to require proof of sickness and to determine the employee’s eligibility for payment. The employee is not entitled to the benefits when he is on a leave of absence. He is not entitled to the benefits when he is on layoff. In short, the benefits here are not “accrued.” He has no right to claim the benefits except as a substitute for wages. The majority opinion sets forth no characteristics that this benefit bears of an “accrued” benefit other than that the period of coverage increases with seniority. 2 For these reasons it is clear to me these benefits are in the nature of wages and are totally distinguishable from the usual vacation benefits to which, because they are “accrued,” the employee is entitled when on strike, on leave of absence, on layoff, or upon termination of employment. Furthermore, as it is admitted by the Board, there is a complete absence of unlawful anti-union motivation here on the part of Texaco. Consequently, there can only be a violation with respect to either benefit discontinuance or the announcement of its discontinuance if the employer actions are “inherently destructive” of basic employee rights under the theory of violation set forth in NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 , 87 S.Ct. 1792 , 18 L.Ed.2d 1027 (1967). In order for Texaco’s conduct to be “inherently destructive” the benefits *1046 denied must have been “accrued.” On this basis, the Board held that it was “inherently destructive” to advise the employees in a pre-strike letter that those on sick leave who joined the strike would have their sick leave benefits discontinued; yet it would have been perfectly legal to advise employees that if they struck their wages would be discontinued for the period of the strike. The inconsistency and illogic of this conclusion of the Board is fully evident when, as here, it is admitted that the sick leave benefits are only a substitute for wages. Underpinning the Board’s holding that A & S benefits cannot be discontinued is its finding that inquiring of an ill employee whether he has joined the strike constitutes a violation of his Section 7 rights. Such an inquiry merely ascertains whether, under the provisions of the A & S program, the employee continues to be eligible for benefits. The inquiry amounts to nothing more than an effort to determine whether the employee on sick leave would be available for work except for his illness. A healthy employee must of necessity declare his availability for work by either working or not working during the strike. My reading of Section 7 of the Act does not convince me that disabled or ill employees have a greater right to refrain from such a declaration of availability than healthy employees who by their conduct are making an explicit declaration. This is especially true in the circumstances of this case where Texaco has the right under the A & S plan to require proof that illness is the reason for the absence of the employee. Repeating myself, I simply fail to comprehend how sick employees have rights under Section 7 above those of healthy employees so that they have a protected right to remain silent while all other employees are declaring themselves. In conclusion, the practical effect of the majority’s holding belies its reasonableness. Under our interpretation and application, not only of the law but of the collective bargaining agreement before us, there is nothing to prevent employees from choosing elective surgery or preventive care requiring confinement commencing two days before the strike and receiving A & S benefits into the period of the strike and for so long as they can find doctors who opine that disabilities to work exist. Such a holding clearly amounts to our placing our imprimatur on the financing of a strike by the employer, a result the majority acknowledges is contrary to law. Such a holding clearly fails to consider the mutual intent of the parties who negotiated the collective bargaining agreement. For these reasons, I respectfully dissent. . Whether a benefit is accrued is always first a matter of interpreting the particular collective bargaining agreement. Under some agreements, for instance, sick leave benefits may be accrued and under others vacation benefits may not be accrued. Usually, as here, vacation benefits are accrued and sick leave benefits are not. . The majority only notes further that the A & S benefits “resembled” accrued benefits in the sense that they were payable when a sickness or accident occurs. This analogy loses me. For example, holiday pay is payable when the holiday occurs, but no one would suggest that this characteristic turns holiday pay into an “accrued” benefit. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9470319. Public record. Not legal advice.