Frito-Lay

cation to my Employer with a copy to the Local Union, not more than twenty (20) days and not less than ten (10) days prior to the expiration of each period of one year or of the applicable col- lective bargaining agreement between my Em- ployer and the Union, whichever occurs first. On July 27, 1976, during the hiatus between the expiration of the old contract and the execution of the new agreement, six employees who had executed au- thorizations resigned their memberships in Respon- dent Union. In addition, they notified both the Union and the Company that they no longer authorized withdrawal of union dues from their paychecks. Re- spondent Company initially complied with the em- ployees' request and ceased payroll deductions for these six individuals. Thereafter, the Union com- plained to the Company that under the correct inter- pretation of the authorizations, dues deductions were still mandated because the six employees had failed to revoke "between ten and twenty days prior to the anniversary of authorization or the termination of the contract." Upon reflection. the Company agreed with the Union's interpretation and reinstituted the deduc- tions effective September 4, 1976. Based on the foregoing, our dissenting colleague would find that Respondent Company violated Sec- tion 8(a)(1) and (3) of the Act, and that Respondent Union violated Section 8(b)(I)(A) and (2). She prem- ises this finding on her view that, the specific provi- sions in the employees' dues-checkoff authorizations regarding irrevocability notwithstanding. Section 302(c)(4) of the Act rendered the authorizations revo- cable at will when the collective-bargaining agree- ment expired on June 9, 1976. For the reasons stated hereafter, we consider our colleague's application of Section 302(c)(4) to the facts of this case inappropri- ate and, in any case. her interpretation of that section erroneous. Checkoff is a means by which employees voluntar- ily assign a portion of their wages to a union in order to pay their dues and other obligations to the union. It is well settled that an employer violates Section 8(a)(3), (2), and (1) if it continues to withhold dues from employees' wages after the employees have val- idly revoked their checkoff authorizations. See Indus- trial Towel and Uniform Service, a Division of Cavalier Industries, Inc., 195 NLRB 1121 (1972). It is equally well settled that a union violates Section 8(b)(1)(A) and (2) if it causes an employer to make deductions in such circumstances. See Atlanta Printing Specialties and Paper Products Union Local 527, AFL CIO (The Mead Corporation), 215 NLRB 237, 238, footnote 4 (1974), enfd. 523 F.2d 783 (5th Cir. 1975). Thus, the sole question presented in the instant case is whether employees have the right to revoke their checkoff au- Frito-Lay, Inc. and Rosalee Salinas, Amalgamated Meatcutters and Butcher Workmen of North Amer- ica, Local 540 and Rosalee Salinas. Cases 16-CA 6787 and 16-CB-1183 June 28, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On September 15, 1977, Administrative Law Judge Charles W. Schneider issued the attached Decision in this proceeding. Thereafter. the General Counsel filed exceptions and a supporting brief. Respondent Union filed a brief in opposition to General Counsel's excep- tions. 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. We have decided to affirm the Administrative Law Judge's Decision. However, in response to our dis- senting colleague's opinion, we shall review briefly the facts and relevant legal principles that support this result. The facts were stipulated. The Company and the Union have been signatories to successive bargaining agreements since 1964. Of the two agree- ments relevant to this dispute, the first ran from June 10, 1973, to June 9. 1976: the second was executed on October 26, 1976, retroactive to June 10, 1976. Both agreements provided for an agency shop and for checkoff for employees who executed written checkoff authorizations. The authorization form utilized here provides, in pertinent part: This authorization shall take effect as of the date hereof and shall remain in effect until re- voked by me as hereinafter set forth. This autho- rization shall be irrevocable for a period of one year from the date hereof, or until the termina- tion of the collective bargaining agreement now in effect between my Employer and the Union, or, if no such agreement is now in effect, until the termination of any collective bargaining agree- ment which may hereafter become effective be- tween my Employer and the Union, whichever occurs first. This authorization shall be irrevoca- ble after the expiration of the shorter of the peri- ods above specified for further successive periods of one year from the date of expiration of such period or until the termination of any collective bargaining agreement which may be effective during such successive periods, whichever occurs first. Revocation of this authorization shall be ef- fective only if I give written notice of such revo- 243 NLRB No. 16 FRITO-LAY 137 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thorizations whenever no collective-bargaining agree- ment is in effect regardless of the specific provisions in their authorizations limiting revocability. Our dissenting colleague's suggestion that the va- lidity of checkoff arrangements for purposes of Sec- tion 8 must be judged in light of the provisions of Section 302(c)(4) is contrary to well-settled law. In Salant & Salant, Inc., 88 NLRB 816, 817 818 (1950), the Board stated: ITIhe limitations on checkoff in Section 302 were intended neither to create a new unfair labor practice, nor even to be considered in determining whether checkoff violates Section 8 of the Act. We reach this conclusion for the following rea- sons: (1) The original House Bill as reported and passed specifically made a checkoff that did not meet certain requirements an unfair labor prac- tice under Section 8(a)(2), but this provision was eliminated from that section in conference, and from the Bill as finally enacted, thereby implying that unlawful checkoff was not intended to be made a per se unfair labor practice; (2) The re- strictions on checkoff appear instead in Title ll of the Act, with a similar implication; and (3) Section 302 itself establishes what was plainly in- tended to be the method of enforcing and pre- venting violations of its provisions, viz, criminal sanctions and injunction by U.S. District Courts, upon prosecution and petition for injunction by the Attorney General. [Emphasis supplied.]' Consequently, our dissenting colleague is in error in suggesting that conduct which violates Section 302(c)(4) necessarily is an unfair labor practice.2 Moreover, assuming arguendo that Section 302(c)(4) is relevant to the issues in this proceeding, we can find no support for our dissenting colleague's assertion that that section renders all checkoff autho- rizations, regardless of their terms, revocable at will in the absence of a collective-bargaining agreement. Section 302 of the Act makes it a crime for an em- ployer to willfully "pay, lend, or deliver" money to a labor organization or for a labor organization to "re- quest, demand, receive, or accept" such payments, ex- cept in certain limited circumstances. These restric- tions were intended to deal with several forms of labor racketeering (e.g., bribery, extortion, and other corrupt dealings). See Monroe Lodge No. 770, Inter- I Thus, although our dissenting colleague apparently would have it other- wise, the Board has interpreted Sec. 3 02(cX4) not by reference to "some vague legislative intent" but rather in light of the clear legislative history of the section. 2 The Board has generally adhered to the approach taken in Soalan. E.g., Bagget Industrial Constructors Incorporated, 219 NLRB 171 (1975); Biiso Towboat Company, Inc., 192 NLRB 885 (1971); but cf. The Mead Corpora- tion, supra. national Association of Machinists and Aerospace Workers, AFL-CIO v. Litton Business System, Inc., 334 F.Supp. 310 (W.D.Va., 1971). Thus, the Act exempts from proscription certain types of payments which further legitimate ends. Among these are pay- ments deducted from employees' wages in the form of union dues. Section 302(c)(4), however, restricts such checkoff arrangements by the additional proviso that "[t]he employer [have] received from each employee, on whose account such deductions are made, a writ- ten assignment which shall not be irrevocable for a period of more than one year, or beyond the termina- tion date of the applicable collective agreement, whichever occurs sooner." All that is evident from this provision, however, is that Congress sought to insure that such authorizations could be revoked at least once a year and at the termination of any "ap- plicable collective agreement." Consistent with this interpretation of congressional intent, the courts have construed Section 302(c)(4) to permit the use of au- thorizations which automatically renew unless they are revoked during an escape period ofL for example, 10 days before or after the expiration of I year from their execution or the termination of the applicable collective-bargaining agreement. See, e.g., Litton Business S.'vslems, Inc., supra:, /malgamnated Meat ('ltterv and Allied Workers of North A. merica, Local No. 593 v. Shen-,Mar Food Products. Inc., 405 F.Supp. 1122 (W.D.Va., 1975). See also "Justice Department's Opinion on Checkoff of May 13, 1948," 22 LRRM 46 (1948). Thus, there is no violation of Section 302(c)(4) if checkoff authorizations are irrevocable for stated periods and automatically renewed fr like periods, as long as employees are accorded an opportunity to revoke their authorizations at least once a year and at the termination of any applicable collective-bargain- ing agreements. And the limiting of the opportunity to revoke to a reasonable escape period, such as be- tween 20 and 10 days before the expiration of either of these periods, does not require a different result. Our dissenting colleague's conclusion that Section 302(c)(4) mandates that checkoff authorizations be re- vocable at will whenever there is no collective-bar- gaining agreement in effect, and that an attempt to countermand that principle per se violates Section 8, is based on a fundamental misinterpretation of the cases on which she relies. Those cases hold that, where an intent that checkoffs be revocable at will following the expiration of a collective agreement is evident from the applicable collective-bargaining agreement or from the checkoff authorizations them- selves, it will constitute a violation of the Act for an employer and a union to seek to countermand that intent. Thus, in International Chemical Workers Union. Local 143, AFL CIO (Lederle Lahoratories, Division of/American Cvtanamid Conmpany). 188 NLRB 138 executed checkoff authorizations which cxpres.s/l con- templated the possibility of periods when no contract would be in effect. The authorizations provided that they would be irrevocable except for two escape peri- ods; one 10-day period ending 10 days prior to the expiration of I year from the date the authorization was executed: and one 10-day period ending 10 days prior to the expiration of any collective-bargaining agreement in effect or which became effective after the execution of the authorization. Since the employ- ees did not revoke their authorizations during either of these escape periods, the Union and the Employer were justified in considering the authorizations still valid. Hence, we see no good reason to hold unlawful Respondent Union's request (or the Employer's ac- quiescence in that request) that the Employer con- tinue to deduct dues pursuant to such outstanding checkoff authorizations. Accordingly, we adopt the Administrative Law Judge's dismissal of the com- plaints. ORDLER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the complaints be, and they hereby are. dismissed in their entirety. MEMBt R MURPIIY, dissenting: The majority is holding that checkoff authoriza- tions here are legally revoked only during the 20 to 10-day period prior to expiration of the collective- bargaining agreement or the anniversary of the checkoff authorizations, as provided therein. Accord- ingly, they find that revocations made during the con- tract hiatus period were ineffective and that Respon- dents did not violate Section 8(h)(1(A) and (2) and Section 8(a)(l) and (3) of the Act by their failure to honor them. I disagree. I find that, as a matter of law, under the clear mandate of the proviso to Section 302(c)(4) of the Act, a dues-checkoff authorization is revocable when a collective-bargaining contract is not in effect. The appropriate parts of Section 302(c)(4) read: Sec. 302. (a) It shall be unlawful fior any em- ployer or association of employers ... to pa, lend, or deliver... anv money or other thing of value- * * * * * (2) to any labor organization ... which repre- sents ... any of the employees of such employer 705 (1971), the Board found, inter alia, that a union did not violate Section 8(b)(1)(A) when it demanded that dues he checked off during a contractual hiatus period pursuant to unrevoked checkoff authoriza- tions. To be sure, our dissenting colleague is correct in observing that the Board stated that "all of the authorizations became terminable at will after the contract expired." Id. at 707. But she fails to note that the Board also specifically stated that the dispute was one "involving contract interpretation rather than one involving an interpretation and application of the Act." And in Lowell Corrugated Container Corpora- lion, 177 NLRB 169 (1969), the Board adopted the trial examiner's finding that an employer did not vio- late the Act when it continued to honor unrevoked checkoff authorizations after the expiration of the contract. Moreover, the cases cited by the trial exam- iner in Lowell Corrugated Container Corporation hold that revocations of checkoff authorizations must be honored after the expiration of a collective-bargain- ing agreement if, either by their express terms3 or by implication, 4 it is clear that they were intended to be revocable at will when no contract was in effect.' In agreement with the Administrative Law Judge, we do not believe the facts here warrant finding that Respondents committed an unfair labor practice by the continued deduction of dues after the contract expired and employees attempted to revoke their checkoff authorizations. The employees voluntarily See Merchants Fast Motor Lines, 171 NLRB 1444 (1968) (aulhorizations were expressly revocable at any time). Similarly. in San Diego Cournt Dis trict Council of Carpenters and Joiners of America (Campbell Industries) 243 NLRB 147. the Board holds today that a union violated Sec. 8(bXlX)A) when it caused the employer to continue to withhold dues from employees' wages after those employees had successfully resigned from the union Al- though resignation ordinarily does not revoke outstanding checkoff authori- zations, the Board holds that it did so in that case because the authorizations specifically provided that they were "in consideration of the benefits received as a result of membership in the Union." Cf. Lederle lrhboratories, Aupra Since such language does not appear in the authorizations used in the instant case, our dissenting colleague's contention that our decision is "directly in conflict" with Campbell is plainly wrong. 'In Bedford Can Manufacturing Corp., 162 NLRB 1428 (1967),. and in Penn Cork & Closures. Inc.. 156 NL.RB 41 1(1965), enfd. 376 F.2d 52 (2d Cir. 1967), the Board held that a vote to deauthorize a union from maintaining a union-securit) clause made outstanding checkoff authorizations revocable at will. The Board reasoned that it would not infer that "absent the compulsion of the union-security clause to pay dues], the employees would have acqui- esced in the renewal of their checkoff authorizations." 162 NLRB at 1431. But a similar inference is not warranted regarding a contractual hiatus pe- riod. 5 See also The Associated Press. 199 NLRB 1110 ( 1972). petition for review denied 492 F.2d 662 (D.C. Cir. 1974), where the Board found that an arbitra- tor's award. holding that authorizations which are valid otherwise do not automatically become revocable at will during a hiatus between contracts, was not repugnant to the policies and purposes of the Act under Spielberg Manufacturing Company. 112 NLRB 1080 (1955). In her dissenting opinion, our colleague points to a remark by the trial examiner in Lowell Corrugated Container Corporation that "the employee is free to repudiate or revoke his authorization at any time after the contract expired" as supporting her views here. Our colleague fails to note. however. that the cases cited by the trial examiner in connection with this dictum observation plainly do not support such a broad proposition * * * FR IT1-0-I.A Y 139 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) The provisions of this section shall not be applicable . . . (4) with respect to money de- ducted from wages of employees in payment of membership dues in a labor organization: Pro- vided, That the employer has received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner; There is no dispute concerning the facts and briefly they are as follows: The Union and the Company had a bargaining agreement which expired on June 9, 1976. Thereafter, on October 25, 1976, they entered into a succeeding agreement. Despite the second con- tract's being retroactive to June 10, there was, for purposes here, no agreement in effect between June 9 and October 25. Both of the contracts contained an agency-shop provision requiring in effect that each employee pay union dues as a condition of employ- ment and also a dues-checkoff provision providing for company deduction of dues from the pay of employ- ees who submitted authorization forms. The particu- lar authorizations provide essentially that they would be irrevocable for a year or "until the termination of the collective bargaining agreement now in effect .... " They further provided that revocation of autho- rization could be effected by written notice given not more than 20 nor less than 10 days prior to the expi- ration of each -year period or of the applicable bar- gaining agreement. On or about July 27, 1976-that is, during the June 9 to October 25 contractual hiatus period-six em- ployees submitted notices to the Company and the Union stating they were terminating their union membership and were withdrawing authorization for the checkoff of their union dues. As a consequence, the Company stopped deducting dues from the six employees' pay. The Union, by letter dated August 27, objected to the Company's honoring the revoca- tions which it stated was "contrary to the check-off authorizations." More specifically, it contended, as does the majority here, that the revocations were not effective because the forms specified they be sub- mitted "between ten (10) and twenty (20) days prior to the anniversary of the authorization or termination of the existing contract." Since none of the revoca- tions in dispute here was submitted during this pe- riod, the Union demanded that checkoff of the six employees' dues be reinstated. The Company, with- out the affected employees' consent, complied as of September 4, 1976, with the Union's demand. In dispute here is the effectiveness of the employ- ees' checkoff revocations and the legality of the Com- pany's and the Union's failure and refusal to honor those revocations. The Union's position is, as the facts recited above indicate, straightforward. It basi- cally contends, as it stated in its letter to the Com- pany, that, as the employees did not submit their re- vocations during the "escape" period just prior to the contract's expiration period, each authorization was renewed for another term as specified by its provi- sions. The General Counsel6 contends, however, that the duration of the authorizations was limited by the parties' bargaining agreement to the period of that agreement, that the authorization escape period was too limited and thus in effect not binding on employ- ees, that during the contractual hiatus period the au- thorizations were terminable at will, and thus the re- vocations submitted in July were necessarily effective. The Administrative Law Judge and presumably my colleagues of the majority-concluded essentially that the authorizations were not controlled by or tied to the language of the bargaining contract but were separate agreements to be separately construed; that the provided "escape" period was not unlawfully re- strictive; and that, in consequence of the foregoing, the authorizations had, as the Union argues. renewed for another binding term at the time the disputed re- vocations were submitted. He found no violations in the refusal to honor them. The majority agreed. I find in agreement with the General Counsel that the authorizations were revocable upon request dur- ing the contractual hiatus period. As I indicated above, this result is fully supported by a reading of the plain language of Section 302(c)(4) of the Act which provides, inter alia, that a wage assignment "shall not be irrevocable ... beyond the termination date of the applicable collective agreement .... " No legal exegesis looking for vague implications of the language used or for some veiled legislative intent is necessary here, for the language is clear on its face that once the contract terminates the authorization is revocable. And this rather obvious conclusion is in accord with past Board decisions on the matter.7 b The Company filed no brief in support of its position in failing to honor the revocations. 7 See Internarional Chemical Workerr Union, Local 143, AFL CIO (Led- erle Laboratories, etc), 188 NLRB 707 (1971). where the Board stated that authorizations in a union's possession "became terminable at will after the lunderlying] contract expired .... " See also Lowell Corrugated Container Corporation, 177 NLRB 169 (1969). in which the Board adopted the admin- istrative law judge's (then called trial examiner) decision in which it was concluded that "[the] employee is free to repudiate or revoke his authoriza- tion at any time after the contract [sanctioning the authorization] expired." 177 NLRB at 173. But see The Associated Press 199 NLRB 1110 (1972). cited by the Administrative Law Judge in this proceeding in support of his result. In that case, the Board essentially held not repugnant to the Act an arbitration decision to the effect that revocations must be submitted during the authorizations' escape period and did not become terminable at will with the expiration of the underlying contract. Insofar as the arbitrator's conclu- sions involve an interpretation of the provision of the Act. they are obviously wrong. And I find it difficult to conceive that the members of the majority in this case would in effect defer to an arbitrator where a basic interpretation of the Act is involved. Consequently, The Associated Press case is of no help in resolving the issues here before the Board. 140 DECISION STATEMENr OF tll: CASI CHARLES W. SCHNEIDER. Administrative Law Judge: On September 13, 1976, Rosalee Salinas, the Charging Party. filed separate unfair labor practice charges pursuant to the National Labor Relations Act, 29 U.S.C.. §151 cr xeq.. against Frito-Lay, Inc., the Company, and against Amalga- mated Meatcutters and Butcher W'orkmen of North Amer- ica, Local 540, the Union. On January 19, 1977, the Acting Regional Director for Region 16 of the Board issued a complaint upon the charge against the Union. On February 9. 1977. the Regional Di- rector issued a complaint upon the charge against the Com- pany. and consolidated the two cases. The complaints allege, in sum. that the Company. at the insistence of the Union. deducted union dues from the pa of Salinas and five other employees,' although the employ- ees had revoked their authorizations for such deductions. By such action the Company allegedly violated Section 8(a)(1) and (3) of the Act, and the Union violated Section 8(b)(1)(A) and (2) of the Act. The Company and the Union dulb filed answers denying the commission of unfair labor practices. Thereafter the parties entered into stipulation as to the facts. The stipulation provided for a waiver of hearing on the complaints and for submission of the matter to a duls designated administrative law judge. Thereafter I was dulv designated the Administrative Law Judge. Briefs were sub- sequently filed by the General Counsel and the Union. and have been considered. Upon the record thus made, and the briefs, I make the following: FINI)IN;S OF FA( I I. JURISDICTION AND l.ABOR ORGASIZ.ATION There is, furthermore, no need to consider, as did the Administrative Law Judge, whether or not an au- thorization is tied to or controlled by the "applicable collective agreement," for the statute is patently con- cerned solely with the existence of a current bargain- ing agreement as a condition precedent to an employ- ee's being held to an irrevocable checkoff. Neither is it necessary to consider if the contract gave rise to, or limits, or otherwise seeks to affect the checkoff, for the matter before the Board concerns a statutory, not contractual, limitation on checkoff. Similarly, that the employees may have, pursuant to the language of the authorizations, been able to revoke their authoriza- tions shortly before the contract expired is of no con- sequence concerning the present issue, for contractual permission to revoke prior to termination cannot limit an employee's statutory right to revoke after termina- tion, when no contract is in effect.8 In short, contrary to the position taken by the ma- jority, Section 302 provides on its face that the employ- ees could revoke their authorization after the contract terminated, and that is what they did. Consequently, the Company's failure to honor those revocations compelled the employees to submit to a checkoff they no longer authorized-and had legally canceled and forced the employees as a condition of employment to the Union where there was no lawful union-security provision in effect. By failing to honor the revocations the Company violated Section 8(a)(3) and (1) of the Act, and the Union by causing the Company to fail to honor the revocations violated Section 8(b)(l)(A) and (2). 1 would so find9 and issue an appropriate reme- dial order.'0 m Whether or not the limited "escape" penod specified in the authorization was legally sufficient is not relevant to the issue under consideration. Never- theless, for purposes of discussion in this proceeding, I assume that it was. The majonty's contrary position seems to be on essential points directly in conflict with its decision in San Diego CounOt District Council of Carpen- lers and Joiners of America (Campbell Industries), 243 NLRB 147 (1979). There the majority held that a resignation from union membership during a contractual hiatus period automatically canceled outstanding unrevoked au- thorizations. Here it holds that a revocation in addition to a resignation does not during a contractual hiatus period cancel an outstanding revocation. However. these inconsistencies do not bother the majority. I Contrary to the argument of my colleagues. I quite obviously am not contending that Sec. 302 of the Act created a new unfair labor practice, and the difference between us, as they should realize, does not concern any such matter. But I do appreciate that by so confounding our differences they have provided themselves with several really irrelevant cases to cite against my purported position. This is commonly referred to as knocking down straw- men, or perhaps even strawwomen. What I am obviously holding is that the authorizations in dispute were effectively terminated and, thus, that the con- tinued checking off was unlawful. My position is predicated on my conclu- sion that, once the underlying contract giving rise to authorizations had expired, the authorizations, irrespective of their specific language, became terminable at will. A plain reading of Sec. 302 and of the cases I cite, without the strained exegesis of the majonty, seems to me. as I point out above, to soundly support this result. But, alas, I have failed to convince my colleagues of that fact and therein lies our difference. Frito-Lay. Inc., herein called Frito-La., is a Delaware corporation with its principal office in Dallas. Texas. where it is engaged in the manufacture and distribution of snack food products. During the past year, Frito-Lay. in the course and conduct of its business operations from its )al- las, Texas. facility purchased and received goods and mate- rials valued in excess of $50.000 which were transported to its place of business in Dallas. Texas. in interstate com- merce directly from suppliers in States of the United States other than the State of Texas. Frito-Lay is, and has been at all times material herein. engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is. and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. If. THE UNFAIR LABOR PRAC II(ICS A. The Issue The issue is the validity of the continuation of union dues deductions by the Company from the wages of the six I Sheryl Carroll. Winnie Cole, Shirley Fae Green, Marie Myrtle Rle. and Mary Spain. FRITO-LAY 141 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD named employees, pursuant to the Union's insistence thereon, after the employees had sought to revoke authori- zations previously given for such deductions. More specifi- cally, the question is whether the authorizations could, con- sistently with Section 302(c)(4) of the Act, be made revocable only during a specified and limited period of time, and if so, whether such a limitation on revocation applies during a period of time when a collective-bargain- ing agreement is not in existence. B. Section 302(c)(4) Section 302 of the National Labor Relations Act, inter alia, prohibits the payment of money by an employer to a labor organization, with certain exceptions. Among the ex- ceptions is one, in Section 302(c)(4), permitting an employer to deduct union dues from the wages of an employee, . . .Provided, That the employer has received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevo- cable for a period of more than one year, or beyond the termination date of the applicable collective agree- ment, whichever occurs sooner.... C. The Facts I. The contracts Since 1964 the Company and the Union have continu- ously been parties to collective-bargaining agreements which have included provsions for deductions by the Com- pany of union membership dues from employees' wages, upon written authorization signed by the employees. Two of those bargaining agreements are involved in the present controversy. The first became effective on June 10, 1973, and expired on June 9, 1976; the second was executed on October 25, 1976, retroactive to June 10, 1976, and effective to June 9, 1979. No contract was in existence covering the period between June 9 and October 25, 1976, until the new and retroactive agreement was executed on October 25, 1976. Both of those contracts contained clauses providing that union membership was not compulsory, but setting up an "agency shop": that is, provision that nonmembers of the Union were required to pay the Union the equivalent of union dues. The Union further agreed to accept into mem- bership, without discrimination, any employee who prop- erly tendered application, and to represent all unit employ- ees fairly without regard to union membership. In addition, the contracts required the Company to de- duct from the wages of employees who executed written authorizations permitting it, monthly dues and initiation fees, and to remit those sums to the Union. Those various provisions are found in articles 2 and 3 of the 1973 76 contract, and its 1976 successor, which read as follows: ARTICLE 2 Authorized Dues Deduction Section I. The Company shall deduct, as to each employee who shall authorize it in writing in an appro- priate form agreed to by the Union and the Company, and as to each employee who has heretofore executed a form which is on file with the Company and which has not been revoked, and for so long only during the period of this Agreement is in effect as such authoriza- tion shall remain in force, from the first pay payable to such employee each month, monthly union dues and initiation fees for the current month and remit same to the appropriate Local Union Officials. This authoriza- tion shall take effect as of the date hereof and shall continue in effect for successive one-year periods or until the termination of this Agreement. ARTICLE 3 Agency Shop Section . Membership in the Union is not compul- sory. Employees have the right to join, not join, main- tain, or drop their membership in the Union as they see fit. Neither party shall exert any pressure on or discriminate against an employee as regards such mat- ters. The Union agrees to accept into its membership without discrimination any employee who properly tenders application for such membership. Section 2. The Union is required under this Agree- ment to represent all of the employees in the bargain- ing unit fairly and equally without regard to whether or not any employee is a member of the Union. The terms of this Agreement have been made for all em- ployees in the bargaining unit and not only for mem- bers of the Union. and this Agreement has been ex- ecuted by the Employer after it has satisfied itself that the Union is the choice of the majority of the employ- ees in the bargaining unit. Accordingly, it is recognized that it is fair for each employee in the bargaining unit, whether a Union member or not, to pay his propor- tionate share of the cost of representation and assume that share of the obligation along with his receipt of equal benefits contained in this Agreement. Section 3. In accordance with the policy set forth in Sections I and 2 of this Article, each employee who is not a member of the Union shall be required to pay the Union, the employee's exclusive bargaining representa- tive, an amount of money equal to that paid by an employee in the bargaining unit who is a member of the Union, which shall be limited to an amount of money equal to the Union's regular and usual dues. This amount of money is in payment for services ren- dered by the Union and is not payment for the privi- lege of work. Accordingly, it is not, nor is it intended to be, a work permit or a condition for the privilege to work. It is a payment necessary to preserve, and to prevent limitations upon, the bargaining power of the Union and its power to represent the employees as to their wages, hours, grievances, terms and other condi- tions of employment. For present employees, such pay- ments shall commence thirty-one (31) working days following the effective date or on the date of execution of this Agreement, whichever is later, and for new em- ployees, the payment shall start thirty-one (31) work- ing days following the date of employment. 142 These formls have been contintousl mIn use since 1964. All six of the employees involved signed such authoriza- tions on or about the follouwing dates: Sherl Carroll. Jul 28. 1973: Winnie Cole, November 28. 1973: Shirle Faye Green. March 26, 1970; Marie MNrtle Rile. February 10. 1964: Rosalee Salinas. ebruary 27. 1973: Mar Spain. July 24. 1964.2 3. The attempted revocations and the result On or about July 27. 1976. all six of the involved emplo!- ees attempted to terminate their memberships in the Union and to revoke their dues authorizations, hb delverin to the Compan and the Union the lllow-ing ritten notice, dated July 27, 1976, signed hb each of the emploeeS We. the undersigned. hereb terminate our memrnber- ship in Amalgamated Meat ('utters and Butcher W'orkmen of North America ,\ l. ('10() .ocall nion No. 540 .... We no longer authorize the itlhdra, al of union dues from our paychecks. Pursuant t that ntice, the ('omp;anl ceased lmaking dues paroll deductions t r the six emplo ec oni o about Jul 31, 1976, and made no deductions during the month of' August. Thereafter, by letter dated August 27. 1976. the nion demanded that dues deductions be reinstituted for those employees. he tnion's letter stated. in prt: Your action is contrar, to te checkoff authorizationl in our tfiles t'ir each of these individuals. The letter then quoted the tex\t of the authoriitiont,'. and concluded: The sum of' this language is that depending upon which occurs first. notification of termination of check- off authorization must be forwarded between ten (10} and twenty (201 days prior to the anniversary of autho- rization or the termination of the existing contract. None of the above referenced individuals have met with this requirement. On behalf of Local 540 we demand that ou deduct and forward union dues from the above referenced in- dividuals. Thereafter. the Company reinstituted the pastroll dues deductions effective September 4, 1976, without conulilng the employees concerned and absent the execution f nies dues deduction authorizations bh said employees. aind has continued to deduct and remit such dues to the nion on a regular periodic basis. At no time between June 9. 1976. and September 4. 1976. did the Company and the Union negotiate a new collective-hargaining agreement to succeed the one which terminated on June 9. 1976. 2 Spain's card is undated, hut it is stipulated that she signed the authoriza- tion on or about the date given 2. The checkoff authorizations The checkoff authorizations signed by employees. includ- ing the six involved here. which also included application for membership in the Union. were in the following firm: DESIGNATION AD CIIECKOFF AUTHORIZATION I hereby request and accept membership in Amalgamated Meat Cutters and Butcher Wbrkmen of North America, Local Union No. 540, and designate said labor organiza- tion as my sole and exclusive represen- tative for the purposes of collective bargaining with my Employer in respect to rates of pay, wages, hours of employ- ment or other conditions of eployment. I further authorize and direct my Enployer, , at Store No. ,to deduct from the first pay payable to me each mDonth the initiation fee and the regular monthly Local Union dues for the current (or preceding) month and to remit the same to the Financial Sec- retary of said Local Union. This authorization shall take effect as of the date hereof and shall remain in effect until revoked by me as here- inafter set forth. This authorization shall be irrevocable for a period of one year from the date hereof, or until the termination of the collective bargaining agreement now in effect be- tween my Employer and the Union, or, if no such agreement is now in effect, until the termination of any collective bargaining agreement which may hereafter become effective between my Employer and the Union, whichever occurs first. This authorization shall be irrevocable after the expiration of the shorter of the periods above specified for further successive periods of one year from the date of expiration of such period or until the termination of any collective bargaining agreement which may be effective during such successive periods, whichever occurs first. Revocation of this authorization shall be effective only if I give written notice of such revocation to my Employer with a copy to the Local Union, not more than twenty (20) days and not less than ten (10) days prior to the expiration of each period of one year or of the applicable collective bargaining agreement be tween my Employer and the Union, which- ever occurs first. FRITO-I.AY 143 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Contentions No contention is raised concerning the validity of the employees' termination of their union membership. Nor is issue raised as to their obligation to continue to pay dues to the Union under the "agency shop." Neither issue being presented, no opinion is expressed on them. The General Counsel contends that, under what he deems to be the Board's interpretation of Section 302(c)(4). the "escape" or "window" provision of the checkoff autho- rizations limiting revocations to a period of 10 days shortly prior to the expiration of 1 year from the anniversary date. or of an applicable collective-bargaining agreement, which- ever occurs first, is invalid, and that when the 1973 76 con- tract expired, the authorizations became revocable at will. I heref'ore. the contention runs, the Company violated Sec- ion 8(a)(I) and (3) of the Act by refusing to honor the revocations after September 3, 1976, and the Union vio- lated Section 8(b)( 1}(A) and (2) of the Act by causing the Company to do so. In addition, the General ounsel contends that, as to lar Spain. the dues authorization was not binding at all hecause it does not reflect the date it was signed and/or the employer to whom it is directed. The Uinion contends that the employees had a definite and aited upon means for revoking the authorizations during the escape or window period, failed to avail them- selves ol it. and the authorizations were therefore automati- cally renewed for another year beyond June 9, 1976-the expiration date of' the 1973 76 contract. The Company has not filed a brief. Hence its contentions are limited to the denials in its answer that it committed unfair labor practices. E. ('onclusions Under article 2 of the bargaining contract, and the terms of the authorizations, the Company is required to deduct union dues and initiation fees from the wages of employees who have authorized it, and remit them to the Union.' The only question presented is the validity of the Compa- ny's and the Union's actions respecting the proper interpre- tation of the authorizations; the construction of the con- tract is not in question, except in one respect which I find neither relevant nor apt. Thus, the General Counsel urges that since article 2 of the contract only authorizes the Com- pany to deduct dues and fees from wages "for so long only during the period of this Agreement is in effect as such autho- rization shall remain in force [emphasis supplied]," the au- thorizations terminated with the expiration of the contract. I find that contention not sustained. The problem does not I Sec. 302(c(4) refers specifically to the deduction of "membership dues" only. However, on May 13, 1948, the U.S. Department of Justice, in re- sponse to a request from the Solicitor of the U.S. Department of Labor for an opinion as to the legality under Sec. 302(c) of certain types of checkoff authorizations, issued an opinion stating, inter alia, that "initiation fees and assessments, being incidents of membership, should be considered as falling within the classification of 'membership dues." 22 LRRM 46, 47. That opin- ion has not, to my knowledge, been challenged since. In including initiation fees within the deductible sums, art. 2 of the contract, and the authorizations here, are found to be within the latitude permitted by the statute. No con- trary contention is raised. involve construction of the contract, an undertaking to which the Company and the Union are the primary parties, but the construction of the authorizations, which are quite independent agreements to which the contracting parties are the Company and the employees. Whether the Union has any interest in the authorizations, such as a third party beneficiary or an assignor, sufficient to give it a right of action in their enforcement, need not be determined, and I express no opinion on it.' While anyone may choose to waive, or agree not to accept, benefits accruing to him as a collateral consequence of arrangements between other per- sons, the substantive rights and obligations of the employ- ees and the Company created by the contracts between them cannot be altered by agreements between the Com- pany and the Union. The General Counsel's relevant contentions are based on two apparent premises: (1) that the limited escape or win- dow period permitting revocation only if notice is given "not more than 20 and not less than 10 days" prior to the expiration date is illegal, and (2) as a consequence all revo- cations became revocable at will upon expiration of the contract. The General Counsel cites no relevant authority for that proposition, though he does cite what I deem to be a distin- guishable case: N.L. R.B. v. Atlanta Printing Specialties and Paper Products Union [The Mead Corporation], 523 F.2d 783 (5th Cir. 1975), discussed later. Indeed, the contention is contrary to the opinion of the U.S. Department of Justice dated May 13, 1948, referred to .supra. In that opinion the Department stated that, in its view, an authorization which declared that it . . .shall be automatically renewed . . . unless written notice is given by me to the Employer 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 (I ) year, or of each applicable collective agreement . . . whichever occurs sooner is "properly a matter for judicial interpretation," but that the proposed form "does not appear to be 'irrevocable for a period of more than one year'," and therefore, . . . we are of the opinion that the check-off under the proposed form of authorization would not appear to constitute a willful violation of subsection (c)(4), and, further, a case arising under this set of facts should not be considered an adequate basis for prosecution. [22 LRRM 46, 47] The escape period provided in the present case appears to track precisely that described in the Justice Department opinion and found not to be an adequate cse for prosecu- tion. Of course, that opinion did state that the problem was one "properly a matter of judicial interpretation." But un- less there is authority, either in decisions of the Board or of the Courts, establishing the invalidity of limited escape pe- riods under Section 302(c)(4), it would appear to me that the opinion of the Department of Justice has by this time ' See, for example, the arbitrator's statement in the case of The As.vAiuaed Press, 199 NLRB 11 10, 112. (1972), a case more fully discussed inroa. to the effect that a checkoff authorization was "essentially a wage assignment by the employee in favor of the Union."' 144 In my opinion, the 4 Alanm Printing case therelore stanids, not for the proposition that upon expiration of a collccti c- bargaining contract an authorization under Section 302(c)(4) becomes revocable at will. but rather for the prin- ciple that premature negotiation of a new contract cannot operate to extend the period of irrevocability beyond the statutory period. Seemingly supportive of the view that the conduct of the Company and the Union here did not deprive the emplo%- ees of any rights under Section 302(c)(4). is the casc of I/'h Associated Press, 199 NLRB II10, pet. for reviews denied 492 F.2d 662 (D.C. Cir. 1974). In that case a collective-bargaining contract between the Wire Service Guild and the Associated Press was due to expire on December 31. 1968, but was extended by mutual consent on a day-to-day basis until about January 4. 1969. A new tentative agreement was reached on Januar\ 17. which was ultimately executed on April 25. retroactie to January 15. During the period when no collective-bargain- ing agreement was in effect, a number of members of the Guild attempted to revoke their authorizations for checkoff of Guild dues from their wages. The authorizations relevant here,6 in standard form, provided for automatic renewal at the end of each anniversary period or contract expiration date, unless written notice of revocation was given to the Associated Press and the Guild "not more than thirty (3() days and not less than fifteen (15) days)" prior to the appli- cable expiration date. For purposes here, that date was the expiration of the contract. The Associated Press honored the revocations. over protest by the Guild that the escape period was December 2 to 16. Ultimately. by Court order. the issue was submitted to an arbitrator pursuant to a con- tractual clause. The arbitrator held that the authorizations permitted revocation in the periods December 2 to 16. and December 7 to 22, but at no other time, and that the at- tempted revocations in January were of no effect. (199 NLRB at 1112.) Both the General Counsel and the Associated Press con- tended before the Board that the checkoff authorizations became terminable at will during the contractual hiatus, thus rendering the arbitration award "patently repugnant to basic Board law," (199 NLRB at 1112-13.) The Board thus summed up the arbitrator's decision: In dealing with AP's argument that during the hi- atus the revocation requirements of authorization form A were of no force and effect, thus permitting the in- volved employees to revoke at any time and in any manner during that period, the arbitrator, in finding no merit in AP's contention, reasoned that the checkoff authorization was essentially a wage assignment by the consequently unable to file a timely notice of revocation. As the court in the Murtha case said: In the instant case, neither of the above fixed dates for revocation being ascertainable, we are of the opinion that authorizations were, during said penod. revocable at will, and that the Company subsequently had no authority to further deduct union dues. ." [42 LRRM 28541 In the instant case, unlike Murtha and unlike Atlanta, the emplosees knew precisely when the contract was to expire, no changes had been made ill the expiration dates, and the employees thus had ample opportunity to revoke their checkoffs during the escape periods 'Other authorizations involved in the case do not bear on the instant problem. acquired the status of persuasive interpretation, and that the authorizations here were therefore automatically re- newed for another year by the failure of the alleged discrim- inatees to give notice of revocation between May 20 and May 30, 1976. Widespread use of the escape requirement since the issuance of the opinion suggests that it has been adopted as the law of the market place, and thus not to be displaced without persuasive reason. If that is so, the Union did not commit an unfair labor practice by demanding the resumption of dues payments pursuant to the authoriza- tions, or the Company by resuming them. The Board's decision in the case of Atlanta Printing Spe- cialties, 215 NLRB 237, enfd. 523 F.2d 783 (5th Cir. 1975), provides no authority for the General Counsel's contention to the contrary, though the court's decision contains a state- ment on which the General Counsel relies. In that case the authorizations provided for a 15-day es- cape period immediately preceding the anniversary date of the authorization or the termination date of the collective- bargaining agreement, whichever occurred first. The bar- gaining agreement was scheduled to expire on November 1., 1973. Between October 17 and November 1, 1973, within the 15-day period, a number of employees gave notice of revocation of their authorizations. However, in the interim, on October 13, 1973. the union and employer involved pre- maturely negotiated another agreement effective October 15. The employer, at the insistence of the union, then re- fused to honor the revocations. The Board found the ac- tions of the employer and the union in those respects un- lawful, on the ground that they had denied the employees the opportunity, guaranteed by the statute, to terminate the authorizations at least once yearly. That decision, of course, is clearly consistent with the purposes and the command of Section 302(cX4), and is not authority for a finding of viola- tion here. The statement of the circuit court in that case, which the General Counsel deems supportive of his position, is to the effect that, "the Union concedes that where there is no col- lective bargaining contract in effect, dues checkoff authori- zations are revocable at will. See Murtha v. Pet Dairyv Prod- ucts Co., 44 Tenn. App. 460, 314 S.W. 2d 185 (1975), [42 LRRM 2850]." (Atlanta Printing at 788). I do not interpret that statement as a declaration by the court that dues checkoff authorizations are revocable at will in the absence of a bargaining agreement, for the court's opinion clearly discloses its understanding that a valid dues assignment may be made under Section 302(c)(4) in the absence of a bargaining agreement. The court's words are, in my opin- ion, a statement of the union's position (and not necessarily one the court adopted), or in the alternative a declaration that where proper notice of revocation is given, or cannot be given because of ambiguity or concealment, the authori- zation is terminable at will-a conclusion quite support- able.' 5 This interpretation of the Allanta opinion seems reinforced by the facts of the Murtha case cited by the court, apparently as authority. There the employees had signed authorizations providing for a 15-day escape period. between 60 and 75 days before the contract expired, without specifying any dates. The contract was then extended indefinitely pending negotiation of a new agreement. Thus, the employees were unable to determine the termina- tion date of the old agreement, or the dates of the escape penod, and were FRITO-I.AY 145 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee in favor of the Union which existed apart from the collective-bargaining agreement and therefore "survived the expiration of the contract and the em- ployees were bound by its terms as was the emloyer." In this regard, the arbitrator further explained that, while termination of the contract, if sooner than a year from the annual revocation date, affords an employee the opportunity to revoke in less than a year, the checkoff by its terms lawfully required that this oppor- tunity be exercised during the specified 15-day period befiore contract expiration. Finally, the arbitrator found that Section 302(c)(4) of the Act only requires that the checkoff be revocable at least once a year, and that one such time may be measured by the contract's expiration date, if sooner than the annual revocation date; however, the arbitrator held that the statute does not require that the authorization cease upon contract termination. To the extent relevant here, the Board found the arbitra- tor's award in Associated Press met the standards set forth in Spielberg Manufacturing Company, 112 NLRB 1080 (1955), for recognition of an arbitrator's award as disposi- tive of an issue before the Board, and therefore dismissed the complaint in that respect. Thus, the Board appears to have specifically rejected the argument that during a contractual hiatus an employee may terminate his checkoff at will. While the Board's ac- ceptance of an arbitrator's apparently reasonable findings of fact may not necessarily indicate that the Board would have found the same way as a matter of first impression, an arbitrator's legal premises "patently repugnant to basic Board law", are not acceptable under Spielberg principles, and must consequently be rejected. The Board found the arbitrator's award in Associated Press "not clearly repug- nant to the purposes and policies of the Act." (199 NLRB at 1114) It must therefore be said, as a minimum, that the Associated Press case stands for the proposition that it is compatible with the Act to hold as a matter of law, () that checkoff authorizations otherwise valid do not automati- cally become terminable at the will of the employee during a hiatus between collective-bargaining contracts, (2) that escape periods of limited and reasonable duration are au- thorized by Section 302(c)(4), and (3) that enforcement of authorizations otherwise valid, in circumstances compatible with those principles, is not an unfair labor practice. In the instant case the escape period, identical with that approved by the Department of Justice in 1948, is limited and reasonable, and the alleged discriminatees failed to avail themselves of the opportunity to revoke the authoriza- tions during the escape period. The authorizations were therefore renewed according to their terms for the appropri- ate statutory period. On balance, then, I conclude that the General Counsel's contentions are not sustained. Decisions cited by the Gen- eral Counsel dealing with requirements for maintenance of union membership or their application are inapposite to the present problem. No question of maintenance of such mem- bership, or of compliance with the agency shop requirement of the contracts, is raised by the pleadings; the issues re- volve solely around rights and obligations arising from dues checkoff authorizations under Section 302(c)(4). A dues checkoff clause is not a union-security device. Shen-Mar Food Products, Inc., 221 NLRB 1329, 557 F.2d 396 (4th Cir. 1977); N.L.R.B. v. Atlanta Printing Specialties, supra at 786 787. There was no contractual requirement for union membership as a condition of employment. Hence, authori- ties dealing with such requirements, or other union security, disciplinary, or union activity problems, are inapplicable. Additional theory as to Spain Concerning employee Mary Spain, the General C('ounsel argues that because her checkoff authorization does not bear on its face a date of execution or the name of an employer, it is in essence a nullity, since no period of expi- ration can be deduced from it, and no employer named to whom it can be presented to be honored. However, the stipulation establishes the date Spain signed the authorization as about July 24, 1964. and satis- factorily permits the inference that the Company was the intended employer. Thus, Spain and the other five alleged discriminatees signed and delivered to the Company and to the Union the July 27, 1976, statement terminating their membership in the Union, and declaring that they no longer authorized the withdrawal of union dues from their paychecks. In these circumstances, I believe it can be safely concluded that the intended employer in Spain's authorization was the Com- pany, that the authorization was given to the Company as authority for the deduction of Spain's dues from her wages, that it has continuously been used for that purpose except for the hiatus period in August and September 1976, and that there is no evidence or claim that the intended em- ployer is anyone other than the Company. I therefore find that Spain's authorization complies with the requirements of the statute. What the result would be if the evidence did not disclose the date the document was executed, or left in doubt the name of the employer, need not be determined.' On the basis of the facts adduced I find no part of the complaint sustained by the evidence. Upon the foregoing finding of fact and conclusions, I hereby issue the following recommended: ORDER8 I recommend that the complaint be dismissed in the en- tirety. ' It may be noted that a somewhat similar contention as to the dates of authorizations, made in N.L.RB. v. Atlanta Printing Specialties 523 F.2d 783. 785. was termed "immaterial" by the court of appeals. which said: It is immaterial that the original execution date of each authorization is unknown, since all were renewed at least once yearly, and had there- fore either been executed or renewed during the 1970 73 collective bar- gaining agreement. The legal consequences of renewal are exactly the same as execution of a new authorization. . .Therefore. since the authorizations, of which the revocation provision is a subsidiary part, were executed or renewed during the 1973 collective bargaining agree- ment, that agreement is the "applicable" one whose expiration date provides an escape period for revocations. A similar conclusion may thus be applicable here. ' In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." 146