Boston Gas Co.

BOSTON GAS COMPANY 369 Boston Gas Company and Utility Workers Union of America, AFL-CIO, Petitioner. Case No. 1-RC-5691. October 12, 1960 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Ernest Modern, a hearing officer of the National Labor Relations Board. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Jenkins, Fanning, and Kimball]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations named below claim to represent certain employees of the Employer. 3. Local Union No. 12003 and Local Union No. 12118, District 50, United Mine Workers of America, Intervenors, contend that the pe- tition filed herein on July 9, 1959, is untimely and that the existing agreement effective from October 16, 1958, to October 15, 1960, is a bar to this proceeding. The Petitioner, inter alia, asserts that the contract is rendered no bar because of the existence therein of an un- lawful checkoff provision. The Employer, in agreement with the Intervenors, contends that the contract is a bar. The checkoff provision reads in pertinent part as follows : ... Said assignment shall not be irrevocable for a period of more than one (1) year, or beyond the termination date of this Agreement, or any successor Agreement, whichever occurs sooner, and shall automatically renew itself for successive years or ap- plicable contract periods thereafter whichever is the lesser, until the employee who has executed the assignment gives written notice-to the COMPANY and to the UNION, at least sixty (60) days and not more than seventy (70) days before any periodic renewal date, of his desire to revoke the same. (Emphasis supplied.) Section 302(c) (4) of the Act permits the checkoff of union dues provided the employer has received written authorization from the employee which is not irrevocable for a period of more than 1 year or beyond the termination date of the applicable collective -. gree- ment, whichever occurs sooner. In Keystone Coat, Apron & Towel Supply Company, et al., 121 NLRB 880, 885, the Board held that henceforth contracts would not serve as a bar to an election if they 129 NLRB No. 46. 586439-61-vol. 129-25 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contain checkoff clauses that do not on their face conform to Section 302 of the Act. The Petitioner, relying upon this principle, contends that as the checkoff clause herein requires notice to both the Em- ployer and the Union to effectuate revocation, the clause exceeds per- missible limits, thereby removing the contract as a bar. We find merit in this contention. In Felter v. Southern Pacific Co., 359 U.S. 326, the Supreme Court had before it an issue as to the validity of a checkoff clause which re- quired that employees submit a revocation of checkoff authorization on forms that could only be secured from the union. Although that case involved an interpretation and application of Section 2 Eleventh (b) of the Railway Labor Act,' the Court related that statute's pro- vision governing checkoff to the provisions of Section 302(c) (4) of the 1947 Labor-Management Relations Act. The Court specifically noted that the reservations to the individual employee of the option of determining for himself whether to be bound by the checkoff agree- ment negotiated by his employer and bargaining representative con- tained in the two Acts, were similar in substance and were adopted for the same purpose. With respect to the Railway Labor Act pro- vision, the Courtheld that : ... Congress consciously and deliberately chose to deny carriers and labor organizations authority to reach terms which would restrict the employee's complete freedom to revoke an assign- ment by a writing directed to the employer after one year. Con- gress was specifically concerned with keeping these areas of individual choice off the bargaining table. It is plainly our duty to effectuate this obvious intention of Congress, and we must therefore be careful not to allow the employee's freedom of de- cision to be eroded in the name of procedure, or otherwise ... . The question is not whether these restrictions might abstractly be called "reasonable" or not. In view of the foregoing and notwithstanding that the provisions relating to checkoff agreements in the Labor Management Relations Act are stated as an exception to the restrictions the Act places on the right of a bargaining representative to receive money or other things of value from an employer, rather than as an expressed limitation on bargaining subject matter as in the Railway Labor Act, we believe the Court's holding in Felter is applicable and controlling to the situation presented here. The Employer and Intervenors contend that the conditions imposed by the instant contract upon an employee's revocation of a checkoff authorization are reasonable ones and businesslike in character. But as the Court cautioned, it is not enough that the conditions "might x 45 U S.C. Section 152 Eleventh (b). BOSTON GAS COMPANY 371 abstractly be called `reasonable' or not." Nor is it sufficient that the conditions might be deemed necessary in the interests of orderly pro- cedure, or that they conform to good business practices. The question is simply whether the condition finds root in the statutory provisions dealing with checkoff provisions. Here the parties have required that employees desiring to revoke their dues authorizations do so by sending their revocation notices to both the Employer and the Union. This, we find, goes beyond the plain intendment of the Act. For, although the Act is silent as to whom notice of revocation must be furnished, we cannot construe it other than as requiring notice only to the Em- ployer, the party to whom the initial written assignment must be given. It is plain that conditioning effectiveness of an employee's dues revocation upon notice to the Union as well as the Employer, as the parties have done here, effectively precludes an employee from revoking his dues assignment simply by giving notice to the Employer. The provision would thus require the Employer to treat as a nullity a dues revocation notice meeting statutory requirements. This we find imposes a condition over and above what we can perceive fairly to be those of the Act-which are here, as in the Railway Labor Act, simply that there be a writing attributable to the employee and fairly ex- pressing a revocation of his assignment, furnished his employer. Accordingly, we reject the parties' contrary contentions, and we find that the checkoff provisions of their contract do not on their face conform to the provisions of Section 302 of the Act. In these circum- stances, and in accordance with our Keystone decision, we find that presence of such provisions precludes their contract from serving as a bar to an election of representatives at this time. The Employer and the Union also urge that the Board should apply the rule of Wm. Wolf Bakery, Inc., 122 NLRB 630, and approve the instant checkoff clause for contract-bar purposes, because the Depart- ment of Justice has approved a checkoff clause providing for notice both to the Employer and the Union.2 We do not agree that Wm. Wolf is applicable to the facts in the instant case. The Wm. Wolf case involved a determination of the validity of a contract providing for checkoff of initiation fees and assessments for employees who voluntarily signed such an authorization. The instant case involves a limitation and infringement of the employees' revocation rights by operation of a contract provision over which the employees have no control. In view of the limitations imposed by the contract upon the right of employees to revoke their assignments, we find that the existing agreement does not constitute a bar.' 2 Department of Justice Memorandum, dated May 13, 1948, 22 LRRM 46. We note that both this memorandum and the Board's Order in Wm. Wolf (December 19, 1958) antedated the Supreme Court's decision in the Felter case (April 27, 1959). a See Keystone Coat, Apron & Towel Supply Company, Inc., supra. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that a question affecting commerce exists con- cerning the representation of the employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 4. We find, in accord with the stipulation of the parties, that the following employees constitute a unit appropriate for the purposes of collective bargaining: All employees of the Employer excluding executives, secretaries to executives, superintendents, confidential clerks, salesmen, professional employees, guards, and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Commercial and Industrial Life Insurance Company and Sta- tionary Engineers Local Union No. 707, International Union of Operating Engineers, AFL-CIO. Case No. 23-CA-1001. October 12, 1960 DECISION AND ORDER On May 31, 1960, Trial Examiner Thomas N. Kessel issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report,2 the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Commercial and Industrial Life Insurance Company, its officers, agents, successors, and assigns, shall : Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Fanning]. 2 We correct a typographical error in the Intermediate Report The date at the end of the last paragraph of III . Unfair Labor Practices is corrected to read, "February 10, 1960 " 129 NLRB No. 44.