United States Postal Service

UNITED STATES POSTAL SERVICE 5 United States Postal Service and National Post Office Mail Handlers, Watchmen, Messengers and Group Leaders Division of the Laborers' International Union of North Amercia, AFL- CIO National Alliance of Postal and Federal Employees and National Post Office Mail Handlers, Watchmen, Messengers and Group Leaders Di- vision of the Laborers' International Union of North America, AFL-CIO. Cases 4-CA-9331- P and 4-CB-3425-P March 3, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On August 10, 1979, Administrative Law Judge Charles W. Schneider issued the attached Decision in this proceeding. Thereafter, Respondents filed exceptions and supporting briefs,' and the General Counsel and Charging Party filed answering briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Re- spondent United States Postal Service, hereinafter Postal Service, violated Section 8(a)(1) and (2) of the Act, and that Respondent National Alliance of Postal and Federal Employees, hereinafter Alli- ance, violated Section 8(b)(1)(A) of the Act by maintaining and enforcing, since October 11, 1977, a 1972 agreement by which checkoff authorizations for Alliance dues are irrevocable for a period of 1 year. We disagree. At issue is the correct interpretation of section 1205(b) of the Postal Reorganization Act of 1970, hereinafter PRA, which provides as follows: Section 1205. Deductions of dues2 . . (b) Any agreement in effect immediately prior to the date of enactment of the Postal Respondent National Alliance of Postal and Federal Employees has requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. 2 Subsec. 1205(a) provides: (a) When a labor organization holds exclusive recognition, or when an organization of personnel not subject to collective-bargaining agreements has consultation rights under section 1004 of this title, the Postal Service shall deduct the regular and periodic dues of the organization from the pay of all members of the organization in the 248 NLRB No. 2 Reorganization Act between the Post Office Department and any organization of postal employees which provides for deduction by the Department of the regular and periodic dues of the organization from the pay of its members, shall continue in full force and effect and the obligation for such deductions shall be assumed by the Postal Service. No such de- duction shall be made from the pay of any em- ployee except on his written assignment, which shall be irrevocable for a period of not more than one year. Thus, section 1205(b) contains an exception to the normal law under the National Labor Relations Act, as amended, that an employer may not grant checkoff to a union that is not the exclusive repre- sentative of the employees in the bargaining unit. The Alliance is unquestionably among the nonex- clusive unions whose checkoff privilege is sheltered by section 1205(b). On the August 12, 1970, enactment date of the PRA, the checkoff agreement in effect between the Post Office Department and the Alliance permitted Alliance members to revoke checkoff assignments every 6 months. In 1972, however, the Postal Ser- vice and the Alliance agreed to increase the period of irrevocability to 1 year. The -year period of ir- revocability has been retained since that time. The question raised in this proceeding is whether the Respondents lawfully may maintain a checkoff agreement which differs as to its terms from the agreement that was in effect at the time of the en- actment of the PRA. Prior to the July 1971 effective date of the PRA, the United States Post Office was a department of the Federal Government, and its labor relations were governed by Executive Order. In 1963, the Post Office signed a "Memorandum of Understand- ing" which granted checkoff privileges to a number of unions representing postal employees, including the Alliance. The signatory unions held either "formal" or "exclusive" recognition as repre- sentatives of postal employees. The Alliance was among the unions given "formal" recognition. Under the memorandum, checkoff authorizations could be revoked at any time upon notice, but such revocations would not become effective until the following March I or September 1. Thus, at the time the PRA was enacted, all organizations with dues-checkoff rights were covered by a uniform procedure which provided that assignments were revocable twice a year. unit of recognition if the Post Office Department or the Postal Ser- vice has received from each employee, on whose account such de- ductions are made, a written assignment which shall be irrevocable for a period of not more than one year UNITED STATES POSTAL SERVICE 5 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The PRA abolished the Post Office Department and replaced it with the United States Postal Ser- vice, an independent agency within the executive branch of the Federal Government. The 1971 na- tional agreement between the Postal Service and the unions recognized as exclusive bargaining rep- resentatives changed the semiannual checkoff revo- cation procedure existing since 1963. It provided, inter alia, that checkoff authorizations initiated thereafter with respect to the exclusive representa- tives would be revocable on a yearly basis only. Successive contracts since 1971 have continued that provision. Following enactment of the PRA, the Postal Service continued to check off dues for the Alli- ance pursuant to assignments revocable in March and September of each year. In April 1972, howev- er, the Alliance informed the Postal Service that under the PRA the Alliance-like the unions that were parties to the 1971 contract-was entitled to limit revocation of new checkoff assignments to a single annual period. On August 1, 1972, the Postal Service acquiesced to that view, and since that date all new checkoff authorizations for Alliance dues have been irrevocable for 1 year. This restric- tion has been enforced by the Postal Service. The General Counsel and the Charging Party contend that the action of Respondents in imple- menting the 1972 arrangement is unlawful because the exception to the NLRA embodied in section 1205(b) of the PRA is limited to maintenance of the exact agreement which was in effect at the time of the enactment of the PRA, and the 1972 agree- ment differs from that agreement in that the period of irrevocability of dues-checkoff authorizations is changed. Respondents contend, inter alia, that sec- tion 1205(b) was not intended to limit the revoca- tion procedures to exactly the form in existence at the time of enactment of the PRA. Thus, Respon- dents assert that they are free to maintain any agreement within the limitation of the 1-year revo- cation period set forth in the PRA. We conclude that Congress, in enacting section 1205(b), intended to freeze only the right to check- off for those unions who then were entitled to it and that it did not intend to limit the revocation procedures to those procedures which were in exis- tence at the time of enactment of the PRA. Rather, Congress intended to permit changes in the revoca- tion period so long as they complied with the limi- tation set forth in the last sentence of Section 1205(b). Prior to passage of the PRA, all checkoff agree- ments in effect between the Post Office Depart- ment and organizations representing postal employ- ees-exclusive and nonexclusive-had 6-month escape clauses. If no changes in the specific provi- sions of the agreements covered under section 1205(b) were envisioned by Congress, there would have been no need to limit irrevocability to "not more than one year." Thus, the final sentence of section 1205(b) would be mere surplusage if Con- gress did not contemplate that the agreements could be adjusted within the 1-year maximum set forth therein. Furthermore, the parallel construc- tion between section 1205(a), granting checkoff rights to exclusive representatives, and section 1205(b) strongly suggests that Congress intended to treat organizations with checkoff privileges under section 1205(b) the same as those with checkoff privileges under section 1205(a). Under section 1205(a) exclusive organizations have an unques- tioned right to negotiate for changes in the irrevo- cability period so long as the changes are within the 1-year limitation period. The Administrative Law Judge discounted the final sentence of section 1205(b) as evidence that the irrevocable period could be expanded to 1 year. In this regard, he focused on that part of the section stating that the authorized agreements must have been in effect "immediately prior to the date of enactment of the Postal Reorganization Act." The Administrative Law Judge construed that pro- vision to permit the execution, prior to the enact- ment date, of new agreements extending the irrevo- cability period to 1 year and the securing of appro- priate new wage assignments. He decided that the Respondents forfeited the right to amend their checkoff agreement when they failed to change it by the enactment date. We deem it unlikely that, in explicitly conferring the authority to amend existing checkoff agree- ments, Congress simultaneously would confine that authority to the period between the completion of congressional action and the enactment date of the legislations without specifically so stating. Thus, contrary to the Administrative Law Judge, we conclude that the inclusion of the last sentence in- dicates that changes within the limitation contained therein could be made at any time. The effect of accepting the position urged by the General Counsel and Charging Party, and adopted by the Administrative Law Judge, would be that all of the terms of the checkoff agreement would have to remain the same indefinitely. Carried to its logical extreme, such a finding would require that all of the details of the 1963 agreement-no matter how insubstantial-would have to remain in their exact form forever. The 1963 agreement covers 3 While the Administrative Law Judge also refers to the effective date, the section refers only to the enactment date, and, therefore, the effective date is irrelevant. UNITED STATES POSTAL SERVICE such particulars as codes for data processing pur- poses, how the dues deductions are to appear on employees' pay stubs, and the method for disburse- ment of dues withheld to unions, including a provi- sion for a 2-cent-per-deduction service charge. We do not think that Congress intended that the parties here should be precluded for all time from altering any of these detailed procedures within the limits set out in section 1205(b). In reaching our decision in this case, we find that the legislative history is not particularly useful in resolving the ambiguity in section 1205(b). The original Postal Reorganization Act introduced in the House required the Postal Service, upon writ- ten assignment by employees, to deduct dues from the pay of employees on behalf of unions recog- nized by the Postal Service as national exclusive bargaining agents. That bill also contained a provi- son making such assignments irrevocable for a period of not more than 1 year. During hearings on the bill in the House, representatives of the Alli- ance and the similarly nonexclusive National Postal Union protested the requirement of exclusive rec- ognition as a condition of attaining checkoff. Con- sequently, the House Post Office and Civil Service Committee added language to the bill continuing existing checkoff agreements in effect; namely, sec- tion 1205(b). As thus amended, the bill was passed by the House. About the same time, the Senate was considering a postal reform bill which likewise restricted and required checkoff to labor organizations holding national exclusive recognition, upon written assign- ments irrevocable for not more than I year. After objections were raised by the Alliance and the Na- tional Postal Union, that measure was amended by the Senate Post Office and Civil Service Commit- tee to extend its coverage to unions which had been accorded formal recognition by the Post Office Department on or before January 1, 1970. The Senate approved the bill as thus amended. The Conference Committee of the Congress without explanation adopted the provision in the House bill, which then was accepted by the Senate. The Administrative Law Judge regarded it as significant that, in changing the original House bill to permit a continuation of checkoff for the Alli- ance and other nonexclusive representatives, the House did not merely add those organizations to the groups covered by section 1205(a), but instead "grandfathered" the agreements they had with the Post Office Department. He makes much of the re- jection of the Senate version, finding that if Con- gress wanted to allow the Respondents to increase the irrevocable period from 6 months to a year, there was no purpose in including a separate provi- sion for nonexclusive representatives-they simply could have been included with the exclusive repre- sentatives as the Senate proposed. The Administrative Law Judge has read too much importance into Congress' decision to treat the exclusive and nonexclusive representatives in separate subsections.4 A thorough examination of the numerous Committee reports and floor debates on the PRA discloses no indication that Congress was particularly concerned with the details of checkoff revocation (except for the establishment of the maximum of a -year revocation period). Thus, while the legislative history indicates Con- gress was interested in guaranteeing that all labor organizations that had checkoff privileges prior to the enactment of the PRA would retain such rights, it offers little or no guidance in resolving the issue of statutory construction presented herein. Therefore, since our reading of section 1205(b) leads us to conclude that it permits changes in the revocation period within the limits of the I-year period, and inasmuch as the legislative history con- tains nothing which indicates Congress intended the section to be interpreted differently, we find that the change in the revocation period challenged in this proceeding was authorized and valid under the PRA, and, therefore, is not violative of the Na- tional Labor Relations Act, as amended. Accord- ingly, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. ' As would be expected with a piece of legislation as complex as the PRA, the Conference Committee was faced with the task of resolving several key differences between the bills passed by the House and the Senate. The dues-deduction language central to the instant case did not constitute one of those key differences. Thus, it is reasonable to infer that the Conference Committee's choice of the House version of that lan- guage was no more than one of the many noncontroversial trade-offs be- tween conferees which frequently occur during the normal course of reaching an accommodation on major policy differences. DECISION STATEMENT OF THE CASE CHARLES W. SCHNEIDER, Administrative Law Judge: On April 10, 1978, the National Post Office, Mail Han- dlers, Watchmen, Messengers and Group Leaders Divi- sion of the Laborers' International Union of North America, AFL-CIO (herein called the Mail Handlers or Charging Party), filed unfair labor practice charges against the United States Postal Service (herein called the Postal Service or Respondent Employer), and against National Alliance of Postal and Federal Employees (herein called the Alliance or Respondent Union), pursu- 7 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ant to the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq. On October 31, 1978, the General Counsel of the Board, by the Regional Director for Region 4, issued a consolidated complaint, and, on March 1, 1979, an amended complaint, on the two charges, with notice of hearing thereon. Service of the charges, the complaints, and notice of hearing was made on all parties. Answers were duly filed by Respondents denying the commission of unfair labor practices. Upon due notice, a hearing was held before me in Washington, D.C., on March 26, 1979. The General Counsel, the Charging Party, and Respondents appeared and were represented by counsel at the hearing, and all parties were afforded full opportunity to be heard, to in- troduce and to meet material evidence, to present oral argument, and to file briefs. On May 21, 1979, all parties filed briefs, which have been considered. Upon the entire record, the briefs, and from my obser- vation of witnesses and their demeanor, I make the fol- lowing: FINDINGS OF FACT I. JURISDICTION The Respondent, United States Postal Service, pro- vides postal services for the United States of America. Its main office is located in Washington, D.C., but it op- erates various facilities throughout the United States. The National Labor Relations Board has jurisdiction over this mater by virtue of section 1209 of the Postal Reorganization Act, 39 U.S.C. § 101, et seq. (the PRA). Charging Party Mail Handlers and Respondent Alli- ance are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. 1. THE UNFAIR LABOR PRACTICES Summary and Issues In 1972, pursuant to request by Respondent Alliance, Respondent Postal Service began to accept wage assign- ments, irrevocable for I year, for checkoff of union dues of postal employees who were members of the Alliance. Prior thereto, since 1963, such assignments had been re- vocable twice yearly. The action of the Postal Service and the Alliance in maintaining this 1972 agreement or arrangement is alleged to be violative of Section 8(a)(l) and (2) of the National Labor Relations Act by the Postal Service, and Section 8(b)(1)(A) by the Alliance, beginning October 11, 1977. A. Background Prior to 1971, the United States Post Office was a de- partment of the Federal Government. As such its labor- management relations were governed by Executive Order. In August 1970, Congress enacted the Postal Re- organization Act, the PRA, which, effective July 1, 1971, abolished the Post Office Department and created in its place the United States Postal Service, an indepen- dent establishment within the executive branch of the Federal Government. Public Law 91-375, 39 U.S.C.A. § 101, et seq. The instant controversy has its roots in that legislation. B. Initiation of the Checkoff Under date of December 13, 1963, the Post Office De- partment, and a number of unions representing postal employees, executed a "Memorandum of Understand- ing," under which the Department granted dues-deduc- tion, or checkoff, privileges to the unions. The signatory unions enjoyed either "formal" or "exclusive" recogni- tion as representatives of certain postal employees.' Among the signatory unions who held "formal" recogni- tion at that time were the National Postal Union (now a part of the American Postal Workers Union), and Re- spondent Alliance. 2 The memorandum, as amplified by other documents, required execution by the involved employee of a De- partment allotment form (SF-1187) authorizing the De- partment to deduct the amount of his dues from his wages. The amplified memorandum and SF-1187 further provided that the authorization was revocable "at any time" upon notice, but would not be effective until after the next following March I or September 1.3 Following December 1963, the Alliance, and other unions signatory to the memorandum, received dues checked off by the Postal Service pursuant to wage as- signments executed by the employee members. C. The Postal Reorganization Act The Postal Reorganization Act, as introduced in the Congress (H.R. 17070, 91st Cong. 2d sess.), contained a provision (sec. 226) requiring the Postal Service, upon written assignment by employees, to deduct union initi- ation fees, dues, and assessments from the pay of employ- ees on behalf of labor organizations recognized by the Service as national exclusive bargaining representatives of Postal Service employees. The bill contained a further provision making such assignments irrevocable for a period of not more than I year. 4 ' Formal" recognition was nonexclusive in nature and applied to cer- tain groups of employees not represented for bargaining purposes by ex- clusive representatives so recognized by the Post Office Department. 2 The Alliance represents employees in all postal crafts in Federal EEO and veterans preference proceedings. : Thus, Form SF--I 187 provided, in part: I further understand . . that I may revoke this authorization at any time by filing . . . a revocation form or other written revocation re- quest with the payroll office of my employing agency. Such revoca- tion will not be effective however until the first full pay period fol- lowing March Ist or September Ist of any calendar year, whichever date first occurs after the revocation is received in the payroll office 4 The provision read as follows: When a labor organization holds national exclusive recognition, or when an organization of personnel not subject to collective-bargain- ing agreements has consultation rights under Section 208 of this title, the Postal Service shall deduct the regular and periodic initiation fees, dues, and assessments of the organization from the pay of all members of the organization in the unit of recognition if the Postal Service has received from each employee on whose account such deductions are made a written assignment which shall be irrevocable for a period of not more than I year. The reference to consultation rights is to organizations representing a ma- jority of supervisors or a substantial percentage of managerial employees. Such organizations are entitled to participate directly in the planning and Continued UNITED STATES POSTAL SERVICE 9 During hearings on H.R. 17070 in the House of Repre- sentatives before the Post Office and Civil Service Com- mittee, representatives of the Alliance and the National Postal Union protested that the requirement in section 226 for exclusive recognition as a condition of achieving checkoff rights, would eliminate their existing checkoff and destroy or seriously impair the effectiveness of their industrial-type organizations. As a consequence, the House Committee added a provision to section 226 of the bill continuing existing agreements in effect. As thus amended, the bill passed the House. In the meantime, the Senate was considering a postal reform bill (S.3842, 91st Cong. 2d sess.) which, similar in this respect to the original H.R. 17070, restricted and re- quired checkoff to labor organizations holding national exclusive recognition, upon written assignment irrevoca- ble for not more than I year. (S.3842, sec. 1305). That provision was amended by the Senate Post Office and Civil Service Committee to extend its coverage to unions which had been accorded formal recognition by the Post Office Department on or before January 1, 1970. As thus amended S.3842 was passed by the Senate on June 30, 1970. The Conference Committee of the Congress resolved these conflicting versions of the checkoff provisions of the legislation by adopting the more restrictive language of the House bill, which was then accepted by the Senate and became the current law. As enacted, the checkoff provisions of the PRA, interpretation of which is dispositive of the instant issue-unless rendered moot by the statute of limitations in Section 10(b) of the NLRA-are as follows: § 1205. Deductions of dues (a) When a labor organization holds exclusive recognition, or when an organization of personnel not subject to collective-bargaining agreements has consultation rights under section 1004 of this title, the Postal Service shall deduct the regular and peri- odic dues of the organization from the pay of all members of the organization in the unit of recogni- tion if the Post Office Department or the Postal Service has received from each employee, on whose account such deducitons are made, a written assign- ment which shall be irrevocable for a period of not more than one year. (b) Any agreement in effect immediately prior to the date of enactment of the Postal Reorganization Act between the Post Office Department and any orgnization of postal employees which provides for deduction by the Department of the regular and pe- riodic dues of the organization from the pay of its members, shall continue in full force and effect and the obligation for such deductions shall be assumed by the Postal Service. No such deduction shall be made from the pay of any employee except on his written assignment, which shall be irrevocable for a period of not more than one year. development of benefits and programs relating to such employees. (39 U.S C § I(004(b)l The Alliance is not such an organization. The Report of the Conference Committee was agreed to by the Senate on August 3, by the House on August 6, and on August 12, 1970, the legislation was signed by the President, effective July 1, 1971. (Note: 39 U.S.C.A. § 1205).5 D. The 1971 Collective-Bargaining Agreement Under date of July 20, 1971, the Postal Service execut- ed a collective-bargaining agreement with a number of postal unions, in which it recognized those organizations as the exclusive bargaining representatives of employees in their particular bargaining units. Respondent Alliance was not among those unions, and has never been recog- nized as an exclusive bargaining representative of postal employees, except to a limited extent not material here.6 Consistently with section 1205(a) of the Postal Reorga- nization Act, the 1971 contract provided checkoff on behalf of the contracting unions of union dues from the pay of union members, upon written assignment by the employee irrevocable for a period of not more than I year. Existing dues authorizations continued in full force and effect unless revoked. (Art. XVII, sec. 7.) Successive bargaining agreements since that date have continued those provisions to July 20, 1981. E. Extension of the - Year Provision to the Alliance Following passage of the PRA, pursuant to section 1205(b) of that Act, the Postal Service continued to check off union dues of members of Respondent Alli- ance, and similarly situated organizations, upon assign- ments revocable in March and September of each year. However, in April 1972 counsel for the Alliance, by letter, informed the Postal Service that under the PRA the Alliance, like the unions who were parties to the 1971 collective-bargaining contract, was entitled to limit the right of revocation of checkoff assisgnments for new union members to a single annual period. Under date of August 1, 1972, the Postal Service acquiesced in that view, and since that date all new wage assignments au- thorizing checkoff of union dues for the Alliance have provided that they are irrevocable for a period of 1 year from the date of delivery, rather than at any time effec- tive after March I and September 1, as previously. This restriction has been enforced by the Postal Ser- vice. Thus, Employee Joan Coates, a mail handler in the New York City general post office, became a member of the Alliance in 1976, and on November 12 of that year Coates executed a standard Postal Service wage assign- ment authorizing dues checkoff from her wages in favor 5 In addition to the provision of sec. 1205(b) of the PRA, providing for the continuance of pre-PRA checkoff agreements, sec. 1203(b) of the Act provided, in effect, that all pre-PRA agreements in existence upon enact- ment of the PRA should continue in force until amended or altered: (b) Agreements and supplements in effect on the date of enactment of this section covering employees in the former Post Office Depart- ment shall continue to be recognized by the Postal Service until al- tered or amended pursuant to law. For a period of time from apparently about 1973 to 1975, Local 209 of the Alliance was the recognized exclusive representative of a unit of Washington, D C .emphloyees, of undisclosed size and function UNITED STATES POSTAL SERVICE 9 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Alliance.7 That wage assignment provided that the authorization was irrevocable for a period of 1 year from the date of delivery, and, further, that it was auto- matically renewable for successive periods of I year unless written notice was given by Coates to the Postal Service and to the Alliance not more than 20 and not less than 10 days prior to each expiration date." Under date of February 23, 1979, Coates sought to revoke that authorization by written notice. On February 27, 1979, the Postal Service rejected Coates' request, stating as ground that the authorization could be can- celed only by notice given not more than 2 days and not less than 10 days prior to the anniversary date of No- vember 12, 1979. Since that time, the Postal Service has continued to check off Coates' dues to the Alliance from her wages. Insofar as relevant here, section 302(c)(4) of the Labor Management Relations Act of 1947 authorizes the check- off of union dues from wages, Provided, That the employer has received from each employee, on whose account such deductions are made, a written assignment which shall not be ir- revocable for a period of more than one year. [29 U.S.C.A. § 186(c)(4).] CONCLUSIONS The first questions to be decided are whether the Na- tional Labor Relations Board has jurisdiction over the controversy, and, if so, whether an improper deduction of union dues from an employee's wages, without more, can constitute a violation of the National Labor Rela- tions Act, as amended. If the answers are negative, the complaint must be dismissed forthwith. However, I find the answers to be in the affirmative. Initially it is observed-and found-that the restric- tions on checkoff revocations instituted by the Postal Service under date of August 1, 1972, were a conse- quence of the Alliance's request, demand, or procure- ment, and involved an agreement, arrangement, or un- derstanding-however it was expressed or is character- ized-between them. The contention of the Alliance that there was no "agreement" concerning the matter is therefore not sustained. Another contention of the Alliance may also be dis- posed of at the outset: that section 1205 of the Postal Re- organization Act requires that the period of irrevocability of Postal Service wage assignments for the payment of union dues be I year. That position is also not sustained. As I interpret section 1205, it-like its progenitor, Sec- tion 302(c)(4) of the Labor Management Relations Act- 7 Coates is also a member of the American Postal Workers Union, as well as a member steward of the Mail Handlers Union. ' Thus, the assignment provided, in part: This assignment, authorization and direction shall be irrevocable for a period of one (I) year from the date of delivery hereof to you, [the Postal Service] and I agree and direct that this assignment, au- thorization and direction shall be automatically renewed, and shall be irrevocable for successive periods of one (1) year, unless written notice is given by me to you and the Union not more than twenty (20) days and not less than ten (10) days prior to the expiration of each period of one year. authorizes a period of irrevocability of not more than 1 year. It does not forbid a lesser period. As to the jurisdiction of the NLRB: Section 1209 of the PRA provides that the National Labor Relations Act, as amended, shall be applicable to the PRA "to the extent not inconsistent with the provisions of this title." Exertion of the authority of the NLRB over the instant controversy involves no apparent inconsistency with the PRA. As to whether the conduct of Respondents here could constitute a violation of the NLRA: The Board has held that it is violative of Section 8(a)(l), (2), and (3) of the NLRA for an employer to refuse to honor a valid revocation of a checkoff authorization, and a violation of Section 8(b)(1)(A) and (2) of the Act for a union to cause the employer's action. 9 Other Board authority establishes that an employer's grant of a dues checkoff to a union which is not the bona fide bargaining representative designated by a majority of his employees in an appropriate bargaining unit consti- tutes illegal assistance to the union violative of Section 8(a)(2) of the NLRA, and interference, restraint, and co- ercion violating Section 8(a)(2) of the NLRA, and inter- ference, restraint, and coercion violatng Section 8(a)(1). Mr. Wicke Ltd. Co., 172 NLRB 1680, 1682 (1968); Anton Notey d/b/a Doctors Hospital Freeport, New York, 185 NLRB 147, 155-156 (1970); Interpace Corporation, 189 NLRB 132, 138 (1971); Howard Creations, Inc., 212 NLRB 179, 184 (1974). Thus unless, as claimed by Respondents, section 1205 of the Postal Reorganization Act authorized the action of Respondents, after the enactment of the PRA, in pro- curing and deducting from employees' pay dues owing 9 In Merchants Fast Motor Lines. 171 NLRB 1444, 1445 (1968), in find- ing an unfair labor practice in the employer's refusal to honor employee revocations of checkoffs terminable at will, the Board said: Respondent's refusal to honor the revocations inherently served to foster the incumbent union and interfered with the employees' Sec- tion 7 rights. Accordingly, we find that the Respondent, by continu- ing the deductions, interfered with, restrained, and coerced its em- ployees in violation of Section 8(a)(1) of the Act and rendered un- lawful assistance to the [union] in violation of Section 8(aX2) of the Act. In Industrial Towel and Uniform Service, a Division of Cavalier Indus- tries, Inc., 195 NLRB 1121 (1972), the Board ruled that for a union to cause such unlawful deductions is violative of Sec. 8(b)(2) of the NLRA. The Board said: It is now well settled that the deduction of dues from an employ- ee's pay after the employee has validly revoked the checkoff authori- zation constitutes a violation of Section 8(aX2) of the Act. Certainly the same result is justified where, as here, the checkoff authorization has been extinguished by the employee's cessation of employment. And it is obvious that the checkoff of dues, under these circum- stances, would encourage membership in the Union in violation of Section 8(a)(3) and that the Union's causation of such a deduction of dues is accordingly violative of Section 8(b)(2) of the Act. In Atlanta Printing Specialties and Paper Products Union Local 527 (Mead Corporation), 215 NLRB 237, fn. 4 (1974), enfd. 523 F.2d 783 (5th Cir. 1975), the Board added that such union causation also violates Sec. 8(b)(l)(A) of the NLRA. The most recent cases affirm those principles: Frito-Lay, Inc., 243 NLRB No. 16 (1979); San Diego District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL- CIO,. (Campbell Industries), 243 NLRB No. 17 (1979). Cf. Salant d Salant, Inc., 88 NLRB 816 (1950); Pacific Intermountain Express Compa- ny, 107 NLRB 837, 848 (1954). UNITED STATES POSTAL SERVICE I the Alliance, such action violated the NLRA. ° We turn then to the Respondents' contentions as to section 1205. The Alliance contends that it is an "exclusive recogni- tion" organization under section 1205(a) of the PRA be- cause (1) from about 1973 to 1975, as related in footnote 6, supra, it was the exclusive representative of a Wash- ington, D.C., bargaining unit, and (2) its authority to meet and consult with the Postal Service on personnel matters is the equivalent of exclusive recognition within the meaning of section 1205(a). Those contentions are re- jected. As to (1), I construe section 1205(a) as applicable only during the time the organization holds exclusive recognition. The Alliance was, therefore, not a section 1205(a) organization during the period of the asserted unfair labor practices-October 11, 1977, to date. As to (2), I find nothing in the legislative history of the PRA, or subsequent interpretations, suggesting that Congress intended the terms "exclusive recognition" or "exclusive representatives" to have a different meaning under the PRA than under the NLRA. Indeed, the authority seems to the contrary. See Malone v. U.S. Postal Service, 526 F.2d 1099, 1109 (6th Cir. 1975); U.S. Postal Service, Na- tional Alliance Locals 694 and 912, 208 NLRB 145 (1974). Section 1203(a) of the PRA requires that: The Postal Service shall accord exclusive recogni- tion to a labor organization when the organization has been selected by a majority of the employees in the appropriate unit as their representative. Somewhat similarly, Section 9(a) of the NLRA states, in part: Representatives designated or selected by a major- ity of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining. In the U.S. Postal Service, National Alliance case, supra at 149, the Administrative Law Judge said, in a Decision adopted by the NLRB, that: . . . the word "representatives" [in the PRA], fairly construed, must be read in conjunction with the use of said word in Section 9(a) of the National Labor Relations Act.... So read, I am convinced, and rule, that the identical language used in both Acts provide the same rights in each Act. In view of the legislative history of the PRA, and par- ticularly of section 1205, Congress' use in section 1205(a) of the term exclusive recognition, rather than exclusive representative, does not seem reflective of a Congressional purpose to shelter the Alliance under section 1205(a), rather than under section 1205(b). Thus, the recognition accorded the Alliance-the right to represent employees in EEO and Veterans Preference proceedings-is not the equivalent of exclusive recogni- tion under section 1205(a). 10 While no contention is made that sec. 1203(b), quoted supra, fn. 5, modifies sec. 1205, it may be stated that it seems clear, and is found, that it does not do so. In fact, sec. 1205 is to be construed as modifying sec. 1203(b). Otherwise sec. 1205 would be largely surplusage. It is also contended that section 1205(b) authorized the extension of the irrevocability period to I year. Unlike section 1205(a), the eligibility standard for coverage under section 1205(b) is not the type of recognition the labor organization enjoys, but rather the type of agree- ment it held with the Post Office Department prior to the PRA. So far as the language of section 1205(b) indi- cates, recognition status is not a factor to be considered in the application or interpretation of that subsection. The Postal Service, and presumably the Alliance as well, contends that the congressional grant was of check- off rights per se, without restriction as to a 6-month period. I find that contention not sustained. In the first place section 1205(b) directed that the checkoff agree- ments in effect prior to the PRA "shall continue in full force and effect." (Emphasis supplied.) Setting aside for the moment the question, decided later, as to the mean- ing of the last sentence in section 1205(b), the statutory command obviously includes the then existing agree- ments and assignments. Thus, section 1205(b) embraced and froze the entire arrangement, including the restric- tive period. In the second place, it is clear that the origi- nally proposed legislation neither required nor autho- rized the Postal Service to checkoff union dues for the Alliance and other nonexclusive representatives. It is likewise clear that section 1205(b) was added by the House of Representatives to permit a continuation of checkoff for such organizations where there was an agreement to that effect in existence immediately prior to the enactment of the PRA. It is significant that the change was made, not by adding organizations such as the Alliance to the groups covered by section 1205(aXas the Senate amendment provided) but by "grandfather- ing" the agreements they held with the Post Office De- partment. As we have seen, the Senate's approval of the addition to section 1205(a) of groups such as the Alliance was rejected in Conference in favor of the House's solu- tion. It is thus apparent that, if the post-PRA adoption of the 1-year irrevocability period by the Postal Service and the Alliance was legal, its validity must be found in section 1205(b). In my view section 1205(b) does not au- thorize such action. It is true that section 1205(b) contains language sug- gesting that the irrevocable period of the assignments validated thereunder could be extended to I year. How- ever, the subsection specifically requires that the autho- rized agreements must have been in effect "immediately prior to the date of enactment of the Postal Reorganiza- tion Act." That provision permitted the execution, prior to either August 12, 1970, or alternatively July 1, 1971 (whichever is deemed to be the date sec. 1205(b) became operative), of new agreements extending the irrevocabi- lity period to I year and the securing of appropriate new wage assignments. The legislation, in its final form, was approved by the Senate on August 3, 1970, by the House on August 6, and was signed by the President on August 12, 1970. However, no action was taken to change the agreements or the assignments until August 1972, long after the controlling date had passed. By then the author- ity to amend had expired and could not be recaptured. It is consequently found that no statutory or other au- thority existed after July 1, 1971, permitting the Postal 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Service and the Alliance to maintain the dues checkoff on behalf of the Alliance with respect to a particular as- signing employee, beyond the first pay period following the next March 1 or September 1, once the employee had given notice of revocation of his assignment. Unless the complaint is barred by Section 10(b) of the NLRA, the rejection of Coates' revocation in February 1979 and the continued deduction of her Alliance dues from her wages thereafter were consequently violative of Section 8(a)(1) and (2) of the NLRA by the Postal Service, and of Section 8(b)(l)(A) and (2) by the Alliance. While there is no evidence that the Alliance specifically re- quested that the Postal Service reject Coates' request, its initial demand for a -year irrevocability policy is to be considered as continuing and reiterated during the entire period the policy has been maintained. In addition, the use of the assignment forms which employees similarly situated executed, which contain the statement that they are, or were, irrevocable for a period of I year, was, and is, also violative of same sections of the Act, inasmuch as they tend to restrain employees from seeking to revoke their assignments at will, as-under the circumstances- they were and are entitled to. ' Section 10(b) We turn now to the question as to whether Section 10(b) of the NLRA forbade issuance of the complaint, thus requiring its dismissal. The basic arrangement between Respondents, by which they restricted the power of employees to revoke a checkoff to a single annual event, rather than at will and effective twice yearly, as formerly, was established on August 1, 1972, and has continued to the present day. The unfair labor practice charge alleging the invalidity of the arrangement was filed on April 10, 1978. Respon- dents contend that Section 10(b) of the NLRA, provid- ing, in part, that . . no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board.... is a bar to the issuance of the instant complaint. The Re- spondents' assumption is that the unfair labor practice, if there was one, occurred in 1972, and that Section 10(b) required that a charge be filed within 6 months there- after. As authority for their position, the Respondents II Because the I-year term in Coates' wage assignment was not autho- rized by the pre-PRA agreement, or by sec. 1205(b) of the PRA, it was ineffective to bar her revocation, and the assignment was terminable at will. Whether, under sec 1205(b), a revocation notice validly can be, or could have been, restricted to an escape or window period of 10 to 20 days prior to the anniversary date, as provided in the post-PRA wage assignments, is a question unnecessary to decide. Cf. Frito-Lay, Inc., 243 NLRB No. 16 (1979); and see Atlanta Printing Specialties, Mead Corp., 215 NLRB 237, enfd 523 F.2d 783 (5th Cir. 1975); Murtha Pet Dairy Products Co., 44 Tenn. App. 460, 314 S.W. 185, 42 LRRM 2850 (1975) The rejection in February 1979 of Coates' revocation having been found to have been illegal, it is unnecessary to consider whether, since the Postal Service thereby received notice of Coates' desire to terminate her deduction, the Service was required to recognize it when the next, or some subsequent, window opened. Cf Monroe Lodge No. 770, Machinist v. Litton, 334 FSupp. 310, 316 317 (D.C Va. 1971); Amualgamrated Local 593 v. Shen-Mar, 405 F.Supp 1122, 1125-26 (DC. Va 1975). rely principally on the opinion of the United States Su- preme Court in the Bryan case (Local Lodge No. 1424, International Association of Machinists [Bryan Manufactur- ing Co.] v. N.L.R.B., 362 U.S. 411 (1960). I find Bryan inapplicable, and Section 10(b) no bar to the complaint. In Bryan an employer and a union executed a collec- tive-bargaining agreement on August 10, 1954, in which the employer recognized the union as the exclusive bar- gaining agent of the employees in the bargaining unit. The contract also contained a union-security clause re- quiring employees to maintain membership in the union after 45 days of employment. At the time of execution of the agreement, the union did not represent a majority of the employees in the bargaining unit. Thereafter, con- tinuing to, and presumably during, the subsequent litiga- tion, the union-security clause was. enforced by the par- ties to the contract. As we have seen, it is an unfair labor practice for an employer to extend exclusive recognition to a minority union, and for the union to procure it. Under conventional principles an accompanying contract is invalid. In June 1955, more than 6 months after the ex- ecution of the 1954 agreement, an unfair labor practice charge was filed, based on the union's lack of majority status at the time of execution of the contract, and the continued enforcement thereafter. The Supreme Court held that, since the basic alleged unfair labor practice was in the execution of the con- tract, Section 10(b) required the filing of an unfair labor practice within 6 months thereafter. That not having been done, the contract was "lawful on its face" (Bryan, 362 U.S. at 419), and extrinsic evidence was not admissi- ble to establish the invalidity of the recognition at the time of execution. The complaint was therefore improp- erly issued. The Court's expression, "lawful on its face," is to be deemed to mean lawful when the contract's ex- press or implied terms, once ascertained, are compared with the requirements of the law. Since it is not unlawful per se for a majority union and an employer to agree to a union-shop clause, the terms of the contract in Bryan were in conformance with the NLRA. And since Section 10(b) forbade attack on the union's majority status in Bryan, enforcement of the contract was not invalid. The instant case is quite distinguishable. In Bryan the contract on its face provided for a legal result compati- ble with the NLRA. In the present case, the 1972 check- off arrangement or policy and its supporting wage as- signments are on their face, incompatible with Section 1205(b) of the PRA, which-as I have interpreted it- forbids a checkoff revocable only once yearly. The re- sulting illegality is evident from comparison of the checkoff policy, the PRA, and the NLRA. Proof of it does not require resort to extrinsic evidence to establish that the policy was unlawful in its inception. All that is required is to ascertain the language or nature of the policy, and the language or nature of the applicable law. Comparison of these two establishes the invalidity of the post-1972 arrangement at all times of its existence. I conclude and find that the result in Bryan is inappli- cable to the instant facts, and that Section 10(b) does not bar issuance of the complaint. It is found that by maintaining a practice, policy, agreement, arrangement, or understanding, since October UNITED STATES POSTAL SERVICE 13 11, 1977, by which checkoff authorizations for Alliance dues are irrevocable for a period of 1 year, and by refus- ing to permit the revocation of such authorizations during that period, the Postal Service has violated Sec- tion 8(a)(1) and (2) of the Act, and the Alliance has vio- lated Section 8(b)(l)(A) of the Act. Ill. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, it will be recommended that they cease and desist therefrom, and take certain affirmative action necessary to effectuate the policies of the National Labor Relations Act, as amended. It has been seen that Joan Coates' revocation of her authorization for checkoff of her dues to the Alliance was unlawfully rejected. There may also be other em- ployees of the Postal Service who attempted to revoke their dues checkoff authorizations for the Alliance, and whose attempts were rejected during the 10(b) period (October 11, 1977, to date). On the authority of previous Board cases,12 it will be recommended that the Respon- dents, jointly and severally, reimburse any such individ- uals, and Coates, for any such deductions made during the 10(b) period after receipt by the Postal Service of notice of revocation, with interest. If the parties are unable to agree as to the facts of rejection or the identity of any such additional individuals, the identity or other facts may be established in a compliance proceeding. Question remains as to the applicable rate of interest. On August 25, 1977, in the case of Florida Steel Corpo- ration, 231 NLRB 651, the NLRB changed its interest rate in connection with Board reimbursement orders to the "adjusted prime interest rate." That formula replaced the Board's former 6-percent interest rate established in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In Florida Steel the Board found that inflationary and other economic trends post-lsis had made the 6-percent rate on backpay awards inadequate to effectuate the policies of the Act. The Board said: We are now convinced that the flat 6-percent inter- est rate no longer effectuates the policies of the Act. A rate of interest more accurately keyed to the pri- vate sector money market would have the effect of encouraging timely compliance with Board orders, discouraging the commission of unfair labor prac- tices, and more fully compensating discriminatees for their economic losses. In the state of the money market existing at that time, the Board deemed that the sliding interest scale charged or paid by the Internal Revenue Service on underpay- ment or overpayment of Federal taxes, defined as the "adjusted prime interest rate," was the appropriate mea- sure. I2 Industrial lo;wel .: lni ,nrrm Srvic'. a Division of Caalier Industrines Inc., 195 NRH 121 1122 11972)- International Brotherhod of BoiLr makers Iron Shipbuilders. Blacksmiths. Ioirgerv and elpers Local 101 (Stearns-Roger Corporation). 206 NL.R 30() fn 3 (1973): Prestige Bedding Compatn. 212 N RB 690. 92 (1974): International Association of Bridge, Structural and Ornamental ron Workers. Local No. 433 (ssrciated (;ener- al Contrac:.,rv of Cali ;irnia). 228 NLRB 1420, 1440-41 (1977) The adjusted prime interest rate is established biennial- ly in October by the Secretary of the Treasury pursuant to statute. 1 3 It amounts to 90 percent of the prime inter- est rate for September of that year as determined by the Federal Reserve Board. The resultant figure, adjusted to the nearest full percent, becomes the applicable adjusted prime interest rate as of the following February, and is effective for the next 2 years. In August 1977, at the time of issuance of the Florida Steel decision, the adjusted prime interest rate, and thus the rate of interest applicable to Board orders, was 7 per- cent. In the following month, September, the prime in- terest rate was 7.13 percent. In October 1977, pursuant to the applicable statute, the Secretary of the Treasury adjusted the prime interest rate to 6 percent-the nearest full percent of 90 percent of 7.13 percent; namely, 6.42 percent. As a result, under the formula of Florida Steel, the interest rate on Board backpay awards dropped from 7 percent in August 1977 back to 6 percent-the rate which the Board had found in Florida Steel to be inad- equate. Thus that formula, adopted because the 6-percent rate did not effectuate the policies of the Act, became the vehicle, not for eliminating the inadequate rate, but for maintaining it. In the meantime, interest rates have resumed their rise. As of today, July 24, 1979, the prime interest rate is 11- 1/2 to 11-3/4 percent, and the Federal Reserve Board's discount rate is 10 percent. (Wall Street Journal, July 24, 1979, p. 35.) In September 1977, the latter was 7.43 per- cent, and, as we have seen, the former was 7.13 percent. The percentage increases in the interim average 63 per- cent in the prime rate and 34.6 percent in the discount rate. The objective which the Board sought to achieve in Florida Steel has thus been frustrated by subsequent events. Since the Florida Steel formula has not, as the Board intended, removed the impediment reflected in the 6-percent rate to effectuation of the policies of the Act, it would seem to follow that that policy is no longer ap- propriate. The question then is, what formula should be substituted? The decision in Florida Steel indicates (231 NLRB at 651) that the rate to be sought is one "keyed to the private money market." That rate may vary consid- erably, both from time to time, and as between different types of loans or obligations. Thus, it may be as high as 45 percent on consumer loans (those perhaps most likely to affect beneficiaries of NLRB monetary awards), 10 percent on judicial judgments, and has been as high as 12 percent in the prime rate. 14 Due to this wide variation, there is no single common denominator, nor any mathematically symmetrical figure, likely to be greeted with universal or unanimous approv- al. The adjusted prime rate, as has been seen, has failed to achieve the Board's objective. In view of the problem, and the experience, it would seem that a rate related to the existing prime rate and the Federal Reserve Board's discount rate is perhaps as satisfactory a formula as can be devised. To some extent that may be arbitrary; but any rate keyed to the money market will be. If such an ' 2h S C § thh21, added January 3, 1975 (PI 1 9-625, sec 7(a)( ), 88 Stat 2114) Ells-BAoKgll Drug Wholesale (Company, 233 NRB 605, 610 (1977) 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD approach is adopted, and substantial changes occur thereafter in the various rates, the Board formula may also change to an extent appropriate and reasonable- how often and to what extent can be left to periodic evaluation in the light of experience and changing cir- cumstances. To be sure, in periods when the cost of money is itself fluid, this may present problems disturb- ing to a sense of continuity. However, it must be kept in mind that the objective is not to devise a solution easy to administer, but one which effectuates the policies of the Act. It would seem that, if both factors must be accom- modated, the latter should have priority. At the present time, in the light of the existing prime rate, and the Fed- eral Reserve Board's discount rate, a rate of 9 percent on Board orders seems reasonable and appropriate for effec- tuation of the policies of the Act. It is suggested that that rate be adopted as necessary to avoid frustration of the objectives sought by the Board in Florida Steel. It is therefore recommended that the applicable inter- est rate here be 9 percent. Limitations of Recommendations The recommended Order is not to be construed to prohibit a requirement that the revocation of an authori- zation will not be effective until the first full pay period following March I or September 1 in any calendar year, whichever date first occurs after the revocation is re- ceived in the Postal Service's payroll office. As has been seen, the original wage assignment forms SF-1187 used pursuant to the 1963 memorandum of understanding con- tained provisions to that effect. Since section 1205(b) of the PRA provided that any dues-deduction agreements in effect prior to enactment of the PRA shall continue in full force and effect, the pre-PRA revocation require- ments are not prohibited by my recommended Order. I make no finding or recommendation concerning the post-PRA addition of the requirement that notice of re- vocation can be given only during the 10-day window period near the end of the -year period. That require- ment does not appear to be consistent with the pre-PRA assignment forms 1187 permitting revocation "at any time." While a window period has been found lawful by the Board under the Labor Management Relations Act (Frito-Lay, Inc., 243 NLRB No. 16 (1979)), in the instant case the basic applicable authority, section 1205(b), grandfathered an unrestricted right of revocation. How- ever, there is no allegation in the complaint, or else- where in the record, that the window period is unlawful here; nor was the issue litigated, argued, or briefed. I, therefore, do not pass on that question, and the order is not to be construed as bearing on it. The point may be an appropriate subject for exception, advisory opinion, or other recourse to the Board. CONCLUSIONS OF LAW 1. United States Postal Service is subject to the juris- diction of the National Labor Relations Board by virtue of 39 U.S.C. § 1209. 2. National Alliance of Postal and Federal Employees is a labor organization within the meaning of the Nation- al Labor Relations Act. 3. By maintaining a practice, policy, arrangement, agreement, or understanding, since October 11, 1977, by which authorizations for checkoff of dues in the National Alliance from employees' wages are irrevocable for a period of 1 year, and by refusing to permit the revoca- tions of such authorizations during that period, the Postal Service has violated Section 8(a)(l) and (2) of the Na- tional Labor Relations Act, and the Alliance has violated Section 8(b)(1)(A) of that Act. [Recommended Order omitted from publication.]