Gulf-Wandes Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gulf-Wandes Corporation and Oil, Chemical and Atomic Workers International Union. Case 15-CA- 6465 June 9, 1978 DECISION AND ORDER BY MEMBERS JENKINS. PENELLO. AND MURPHY On January 30, 1978, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed an answering brief. 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, findings, and conclusions of the Administrative Law Judge but only to the extent consistent herewith. Respondent, in its exceptions to the Decision of the Administrative law Judge recommending that an 8(a)(5) violation of the Act be found arising from Respondent's refusal to remit dues to Oil, Chemical and Atomic Workers International Union, AFL- CIO, Local 4-620, contends that there was no con- tractual obligation to make these assignments and that the complaint should be dismissed in its entirety. Our review of the record and credited testimony con- vinces us that Respondent's exceptions have merit. Respondent is engaged in the business of fabricat- ing and distributing plastic materials at its principal place of business in Baton Rouge, Louisiana. On April 19, 1976, the Oil. Chemical and Atomic Work- ers International Union, AFL-CIO (referred to as the International), was certified as the collective-bar- gaining representative of the employees in a unit con- sisting of: All production, maintenance, and warehouse employees and truck drivers employed by Re- spondent at its 8325 South Choctaw Drive, Ba- ton Rouge, Louisiana, plant; excluding all office clerical employees, professional employees, salesmen, guards and supervisors as defined in the Act. Formal negotiations for a collective-bargaining agreement commenced on or about July 1976, and a contract retroactive to December 16, 1976. was exe- cuted on January 27, 1977. During the course of ne- gotiations, the International unsuccessfully sought recognition for both the International and the Local Union ' as the joint bargaining representatives of the employees. When this proposal was resisted by Re- spondent, the International dropped this request. The recognition provision of the collective-bargain- ing agreement reads: This collective Bargaining Agreement (hereinaf- ter referred to as the "Agreement") hereby is en- tered into as of December 16, 1976, by and between GULF-WANDES CORPORATION (the "Em- ployer") and OIL CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION (the "Union") with the parties agreeing as follows: ARTICLE I RECOGNITION Union 1.00 The Employer recognizes the Union as the sole and exclusive representative, for pur- poses of collective-bargaining with respect to rates of pay, wages, hours and other terms and conditions of employment of all employees in the bargaining unit specifically described in this Agreement. International Representative James A. Riley testi- fied that, on or about October 14, 1976, during a recess in the negotiations, he approached Thomas Beckley, Respondent's attorney, and informed him that no agreement on the contract could be reached unless the International was granted a dues checkoff. Beckley replied that this was not a problem since dues checkoff was one of the items Resondent was going to agree to. After bargaining resumed, Riley immediately brought up the subject of dues checkoff and J. D. Atkinson, president of Gulf-Wandes, agreed to the inclusion of a checkoff provision in the contract. Riley then inquired whether Respondent was agreeable to using the dues-checkoff authoriza- tion forms currently being used in the area by the Local. According to Riley's testimony, Beckley re- plied in the affirmative but asked if Riley had a copy of the dues-checkoff authorization form. Riley testi- fied that he did not have a form with him at the meeting but assured Beckley that it contained stan- dard dues-checkoff language used by the Local. Ac- cording to Riley, Beckley replied that if standard lan- guage was used it would be acceptable and Atkinson agreed. Atkinson testified that the negotiating session when the checkoff was discussed occurred on Sep- tember 2, 1976. According to Atkinson, he volun- tarily agreed to the principle of dues checkoff where- upon Riley inquired whether the checkoff 'Oil, Chemical and Atomic Workers International Union, AFL-CIO. Local 4 620. 236 NLRB No. 93 810 GULF-WANDES CORPORATION authorization form used in the Baton Rouge area would be acceptable. Before Atkinson could reply, Beckley stated that it would probably be all right but that he wanted to take a look at it. The International never furnished an authorization form for approval by Respondent either at negotiations or after the exe- cution of the contract. There were no other discussions concerning the checkoff provisions of the contract. The checkoff clause agreed to by the parties reads in pertinent part: 2.01 Payment of dues by employees to the Union shall be entirely voluntary. To the extent permitted by law, the following shall apply: (a) The Employer shall deduct from the wages of those employees who so authorize such de- A.I-I - y - * - -. JpLI -n-A la-fu ... Wi..L. LI th1.1 UUXtIlII" Dy a zation, the Union. (b) The auth the employee be furnished shall be app being used. (d) For the e Employer sha consecutive amounts as amounts shal ly after dedu list of the na wages dues h deducted fror On or about Fe ted dues-checkoff ted to Responden part: From and a Wandes Corl the amount c same to the ( International such deductic surer of said tinues on to forth in Secti Respondent ret formed the Inter tions in favor of April 6, 1977, Int Rousselle forwarded executed checkoff authoriza- tions to Respondent. An accompanying letter in- formed Respondent that it was authorized and di- rected to deduct dues in accordance with article II, section 2.01(a) of the contract and submit these dues to the secretary-treasurer of the Local. The letter continued. "In accordance with the above directive, you are released from any and all legal obligations relative thereto." Respondent replied to the Interna- tional by letter on April 17, 1977: [Wle are, on advice of counsel, returning here- with your dues deduction authorization. We will neither check-off dues for local 4-620 nor remit any dues to them. Please furnish us with dues deduction authori- zations in favor of the International Union. annur al dus eabise by -gLVaL - - At the hearing Respondent reiterated that it was will- annual dues established by the au deeaie t ing to check off dues and remit them to the Interna- tional if appropriate assignments from the employees iorization form to be executed by were made. shall contain an assignment, shall The central issue in this case is whether, under the by the Union to the Employer and contract, Respondent was obligated to honor the as- xroved by the Employer prior to signment of a debt from the International to the Lo- cal. having received authorizations from employees * * * * to do so. The Administrative Law Judge found noth- ing in the contract to foreclose the International from assigning receipt of such dues, to which it is all make authorized deductions for entitled, to the l ocal or any other party. The Admin- pays in as nearly equal monthly istrative l aw Judge concluded that the dues-checkoff I b e remitted to the Uniont. Deducted provision represented a broad agreement on the part of Respondent to remit dues to whichever labor or- ctions are effected together with a ganization an employee might assign its receipt. Ac- mes of the employees from whose cordingly, he found that by refusing to checkoff dues ave been deducted and the amount from the wages of employees and remit them to the bm each. ILocal, Respondent breached its obligations under ebruary 14, 1977, employees execu- the checkoff provision of the contract and thereby authorizations which were submit- violated Section 8(a)(5) of the Act. It. The form used read in pertinent In arriving at this conclusion, the Administrative law Judge rejected Respondent's Section 302 de- fter this the -- day of fense as lacking in merit. The Administrative Law 19-, 1 hereby authorize Gulf- Judge also found that Respondent's reservation of the right to approve the specific form was presum- poration to deduct from my wages ably in order to insure compliance with the provi- 4f my monthly union dues, and pay f my monthly union dues, and pa' -sions of Section 302 of the Act. However. the Admin- Oil, Chemical and Atomic Workers nio, Chemical and Atomic Workers istrative Law Judge found that, by failing to require Union, AFL-CIO, Local -620 submission bv the International of the proposed )n to be paid to the Secretary-Trea- dues-checkoff for m prior to execution of the con- Local Union. . . . [The form con- tract, Respondent had waived any rights it had there- track the revocation language set under. In support of this waiver theory, the Adminis- ion 302(c)(4) of the Act.] trative L aw Judge cites credited testimony that turned these authorizations and in- Respondent had acquiesced in the use of "standard -national that checkoff authoriza- dues check-off language" at the time of negotiations. the Local were unacceptable. On Moreover. the Administrative Law Judge states that ernational Representative Ernest J. Respondent's refusal to check off dues was not be- 811 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause the form itself was defective, but because Re- spondent objected to participating in a dues checkoff in favor of the uncertified Local. Respondent in its exceptions denies any obligation under the contract either to recognize or checkoff dues for the Local. It contends that the International is the only party attempting to unilaterally modify the contract and that the International. in direct con- travention of the specific terms of the contract, never furnished the authorization form to Respondent for approval although the International was fully aware that such a step was necessary. As set forth above, the dues-checkoff provision of the contract specifically states that: The authorization form to be executed by the employee shall contain an assignment, shall be furnished by the Union to the Employer and shall be approved by the Employer prior to being used. The discussions contemporaneous with the agree- ment on dues-checkoff language do not explain the purpose of this language. The limited discussion con- cerning the authorization card went only to the lan- guage of the card, not to the identity of the parties named on the card. The Administrative Law Judge credits testimony that Respondent expressed no ob- jection to the use of the standard dues-checkoff lan- guage used by the Local in the Baton Rouge area. He also found, however, that this agreement to use stan- dard dues-checkoff language did not mean that Re- spondent consented to remit dues to the Local. In fact, it is uncontested that Respondent adamantly re- fused to recognize the Local as proposed by the Union during collective bargaining, and Respondent never agreed to check off dues in favor of the Local. A contract is to be interpreted to give meaning to all its provisions. The Administrative Law Judge made the narrow presumption that Respondent's right to approve the checkoff authorization form used was designed only to insure compliance with the provisions of Section 302 of the Act. This ignores section 201(d) of the contract which provides in per- tinent part that "dues deductions shall be remitted to the Union." The term "Union" in the contract is de- fined to refer to the International. We infer from the contract as a whole, as well as from the bargaining history, that Respondent reserved its right to approve the checkoff authorization form used in order to in- sure that the form did not contravene the overall in- tent of the parties. Respondent's bargaining conduct demonstrates that it had no intention of allowing the dues checkoff to be used as a vehicle for rendering direct assistance to the Local or as a device for "shoehorning" the Local into representative status vis-a-vis Respondent's employees. Thus, the International's submission to Respon- dent of executed dues-checkoff authorization forms in favor of the Local without obtaining the prior ap- proval of Respondent was not in substantial compli- ance with the contract. This interpretation of the contract is consistent with the following testimony of International Representative Riley: Q. (Mr. Beckley) Now let me ask you the question again. I'm not asking you, Jim, about the language and the card I'm asking you about whether or not the company agreed to check-off dues for the Local? A. (Mr. Riley) I never asked you in that sense. I don't recall on a check-off for the Local. Q. You were just checking about the use of that kind of card? A. Right. Because it had according to the contract, we had to be accepted by the company, whatever check-off was used." Dues checkoff is a mandatory subject of collective bargaining, but the parties need not agree to a check- off provision. In the instant case, the parties agreed to a checkoff provision which required the approval by Respondent of the authorization form prior to its use. Respondent's refusal to approve an authoriza- tion form in favor of the Local is consistent with its bargaining posture throughout the negotiations. Un- der the facts of this case, we cannot conclude that Respondent's refusal to honor the checkoff forms was unreasonable or capricious. The record is devoid of any evidence which sup- ports the Administrative Law Judge's holding that, by agreeing to the use of standard dues-checkoff lan- guage, the parties intended to waive the provision of the contract requiring the approval by Respondent prior to the use of a particular authorization form. This interpretation of section 2.01 of the contract ad- vanced by the Administrative Law Judge would ren- der the entire clause a nullity. The record also pro- vides no support for the Administrative Law Judge's conclusion that section 2.01 of the contract mandat- ed that Respondent require the International to sub- mit the proposed authorization form prior to the exe- cution of the contract. The burden to furnish the checkoff authorization form for approval was on the International and the contract merely states that the International had to fulfill this obligation prior to the utilization of a particular form. Under the circumstances of this case, there is no basis for a finding that Respondent unilaterally mod- ified the contract's checkoff provision. Respondent adhered to the contract agreed to by the parties and 812 GULF-WANDES CORPORATION the International was the party which chose to ignore its obligations under the checkoff provisions of the contract. Accordingly, contrary to the Administra- tive Law Judge, we find that, on these facts, Respon- dent's conduct did not violate the Act. We therefore shall dismiss the complaint. ORDER Pursuant to Relations Act, lations Board herein be, and Section 10(c) of the National labor as amended, the National Labor Re- hereby orders that the complaint it hereby is, dismissed in its entirety. zation separate and distinct from the International. Thus, Ernest J. Rousselle, an international representative of the Union. testified that Local 4-620 is chartered by the Inter- national as a labor organization and has been in existence since 1968. Employees participate in the ILocal and it exists in part for the purpose of dealing with employers engaged in commerce. including the Respondent, concerning wages. hours, and other terms and conditions of employment. I find that Local 4-620 is a labor organization within the meaning of Section 2(5) of the Act. It is not contended by the International or the General Counsel that Local 4 620 does not constitute a labor orga- nization distinct from the International. III THli E t. GECiD I NFAIR i.ABOR PRACTICES DECISION A. Sumnloar of the Material Facts STATEMENT OF THF CASE JAMES L. ROSE, Administrative Law Judge: This matter was heard at Baton Rouge, Louisiana, on September 29, 1977, upon a complaint which alleges, in essence, that the Respondent has breached, and therefore unilaterally al- tered, its collective-bargaining agreement with the Charg- ing Party by failure to remit dues pursuant to employees' lawful assignments. The Respondent is alleged to have thus violated Section 8(a)(5) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, el seq. The Respondent admitted the material factual allega- tions but denied that it has committed any unfair labor practices. Affirmatively, the Respondent alleged that it has no contractual obligation to make the dues checkoff au- thorized by its employees; and, were it to do so, such would violate Section 302 of the Act. Upon the record as a whole, including my observation of the witnesses, briefs, and arguments of counsel, I herebs make the following: FINDINGS OF FACT AND CONCLU;SIONS OF LAW I SJlRISDICTION The Respondent, Gulf-Wandes Corporation, is a Louisi- ana corporation engaged in fabricating and distributing plastic materials at its principal place of business in Baton Rouge, Louisiana. In the conduct of its business, the Re- spondent annually sells and ships goods and products val- ued in excess of $50,000 directly to points outside the State of Louisiana, The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11 THE LABOR ORGANIZATIONS INV)OLVED The Charging Party, Oil, Chemical and Atomic Workers International Union (herein the International or the Union), is admitted to be and I find is, a labor organization within the meaning of Section 2(5) of the Act. Oil, Chemical and Atomic Workers International Union, AFL-CIO, Local 4-620 (herein Local 4-620), is an organt- On April 19. 1976, following a Board conducted election, the International was certified as the bargaining represen- tative of the Respondent's employees in the following unit: All production, maintenance, and warehouse em- ployees and truck drivers employed by Respondent at its 8325 South Choctaw Drive, Baton Rouge, I.ouisi- ana. plant; excluding all office clerical employees. pro- fessional employees, salesmen, guards and supervisors as defined in the Act. I hereafter, the parties commenced negotiations and ulti- matelV entered into a collective-bargaining agreement ef- fective December 16. 1976. The Respondent notes that the agreement was reached following a strike, implying that the employees engaged in an economic strike in connection with negotiating the contract. I find however, based upon the Board's Decision in Gulf-W`aondes Corporation. that the strike, though occurring during the period of negotiations, wAas caused by the Respondent's unfair labor practices. Material to the issues here is the Union's proposal dur- ing negotiations that the Respondent recognize both the International and Local 4-620 as the joint bargaining rep- resentatives of the employees. Respondent objected to rec- ognizing Local 4-620 and this proposal ;ls discarded. Thus the contract executed by the parties reads in perti- nelli part Ihis collective Bargaining Agreement (hereinafter re- ferred to as the "Agreement") hereby is entered into as of Decnember 16. 1976, h, and between (;t F WANLt)i ( ORPORAII(ON (the "Emplover") and oii. (H MI(AIL AND SAi()il \1 ORKRiS INIIRN4I IONA i UNION (the "Union") with the parties agreeing as follows: AR I It I RF(O(;NITION Union 1.00() Ihe Emploxer recognizes the Union as the sole and exclusive represrentative, for purposes of collec- tive-bargaining with respect to rates of pay, wages, hours and other terms and conditions of emplosment of all emplosees in the bargaining unit specifically de- scribed in this Atreement. '21 NI Ru '-' 19'*7 813 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties further agreed to a dues-e which reads, in pertinent part: 2.01 Payment of dues by employee. shall be entirely voluntary. To the exte law, the following shall apply: (a) The Employer shall deduct frol those employees who so authorize s by a proper and lawful written au annual dues established by the Unic (b) The authorization form to be ( employee shall contain an assignme nished by the Union to the Emplo) approved by the Employer prior to * * (d) For the convenience of the emp ployer shall make authorized deduct utive pays in as nearly equal mont reasonably convenient. Deducted al remitted to the Union promptly after effected together with a list of the n; ployees from whose wages dues have and the amount deducted from eacl On February 14, 1977, and thereafter, er ted dues check-off assignments which we the Respondent. The form used reads: From and after this the - da 19--. I hereby authorize Gulf-Wandes deduct from my wages the amount union dues, and pay same to the Oil Atomic Workers International Union, cal 4-620, such deduction to be paid t Treasurer of said Local Union.... tinues on to track the revocation langi Section 302(c)(4) of the Act.] The Respondent refused to make deducti these authorizations and returned them Thus, on April 6. 1977, Rousselle wrote the Respondent enclosing the checkoff assignIn the annual dues is $108 with monthly ins The letter continued: You are authorized and directed by th and Atomic Workers International L such dues in accordance with Article tract and to submit such deductions I Secretary-Treasurer of Local 4-620 of cal and Atomic Workers, 365 Nlagn( nue, Baton Rouge, Louisiana 70808. The Respondent's president, J. D. Ac sponded to this letter on April 7 saving: In reply to your letter of April 6, 1 advice of counsel, returning herewith duction authorization. We will neither for Local 4 620 nor remit anyt dues to Please furnish us with dues deductioi in favor of the International Union. checkoff clause s to the Union :nt permitted by m the wages of At the hearing the Respondent's counsel stated that the Respondent is ready and willing to check off dues and remit them to the International if appropriate assignments from the employees are submitted. B. Analysis such deductions The Charging Party and the General Counsel contend thorization, the that the Respondent is obligated, pursuant to the collec- on. tive-bargaining agreement, to deduct dues from employees' executed by the wages, for those who signed the checkoff authorization, and nt, shall be fur- remit same to Local 4-620. ier and shall be The Respondent argues that it did not agree to remit being used. dues to Local 4-620 and that to do so would subject it to potential jeopardy under the provisions of Section 302 of the Act. ,loyees, the Em- While the Respondent's defenses have some surface ap- ions for consec- peal, I conclude that they are without substance. I con- hly amounts as clude that by refusing to deduct dues from employees' mounts shall be wages, pursuant to their authorizations, and by refusing to r deductions are remit such dues to Local 4-620, the Respondent breached ames of the em- its obligations under the collective-bargaining agreement. ebeen deducted Breach of a collective-bargaining agreement is a violation h. of Section 8(a)(5) of the Act, and such amounts to a unila- teral change.2 rployees execu- While the merits of this matter (the Respondent's con- tractual obligations) might appropriately have been de- termined by an arbitrator, the Respondent refused to sub- ay of -- , mit the issue to arbitration, following the Regional Corporation to Director's notice that were it to do so, issuance of the com- of my monthly plaint herein would be deferred. Chemical and AFL CIO. Lo- I. The Respondent's obligations under the o the Secretary- collective-bargaining agreement [The form con- uage set forth in In essence, the Respondent contends that it did not obli- gate itself to check off dues for Local 4-620 because it is ions pursuant to the International with which the Respondent has the col- to the Union. lective-bargaining agreement. president of the Weaving through the Respondent's argument in this re- rients. He stated spect is its contention that somehow the International is tallments of $9. attempting to force the Respondent to recognize Local 4- 620 as the employees' bargaining representative. It is well settled that a certified bargaining representative te Oil, (Chemical cannot assign its status as such to another, nor does certifi- Jnion to deduct cation of an international imply that the employees meant 2.01 of the con- to include a local union thereof as their bargaining repre- to T. I andeche, sentative. 4 the Oil. ('hemi- However, in assigning dues to which it is entitled from olia Wood Ave- its members to another labor organization, the Union does not thereby indicate that it is attempting also to assign its Ikinson III, lo- status as the bargaining representative. This case, in short, has little to do with the fact that the International, and not :ts Local 4-20, is the certified bargaining representative of 977 we are, on the employees. h our dues dc- r check off dues -Geurd,,n Industries, Inc., 217 NLRB 1018 (1975): Terri-Flex Products, them. In . 200 NLRB 3 (19721. ' his contenlion was raised and rejected by Ihe Board in Gulf-Wandes n authorizations (or/,,ralton, iura. 4 .,4 V.orden (onmpanr, Inc., 159 NLRB 1730 (1966). 814 GULF-WANDES CORPORATION This case involves, no more and no less, the assignment of a debt from the International to Local 4-620 and wheth- er under the contract the Respondent was obligated to honor that assignment, having received authorizations from employees to do so. While the contract is clearly unambiguous with regard to who the "Union" is, the General Counsel arguing that the word is meant to encompass both the International and Local 4-620, there is nothing in the contract to foreclose the Union from assigning receipt of such dues to which it is entitled to Local 4-620, or to another union or to a bank. In arguing that it is not obligated to honor such an as- signment, the Respondent is basically taking the position that the dues-checkoff provision in this contract is a union- security device and, in effect, since its contract is with the Union, it is obligated under the checkoff provision to remit dues to the Union and only to the Union. The Internation- al only is entitled to the security provided by checkoff and such cannot be assigned. This because status as the bar- gaining representative cannot be assigned.5 Dues checkoff. however, is not as the Respondent implicitly contends. Thus, in N.L.R.B. v. Atlanta Printing Specialties and Paper Products Union 527, AFL-CIO,6 the court said: The flaw in the union's argument is its underlining assumption that dues checkoff is a union security de- vice. The dues checkoff section of the Act, on the other hand, far from being a union security provision, seems designed as a provision for administrative conve- nience in the collection of union dues. An employee could revoke the dues deduction authorization, and yet continue to pay dues personally. The nub of this matter really involves what the parties agreed to. The Respondent asserts that the checkoff clause is narrow-that it agreed to check off and remit the dues of employees only where the assignee is the International. But there is nothing in the contract to require such a construc- tion. To the contrary, the contract is silent with regard to who employees might assign receipt of their dues, though impliedly it would be the Union. Further, the contract does not address the question of assigning the right to receive dues to another. Given this lack of information, I conclude that the most reasonable analysis of the parties' intent is: the Respon- dent agreed to the principle of checking off dues from the wages of those employees submitting proper assignments. Construction of the checkoff clause contended for by the Respondent is so narrow as to be obstreperous. A checkoff authorization, as noted by the Fifth Circuit. is an adminis- trative convenience. Unions ask for this in negotiations and companies either agree or not, depending upon their particular economic interest, e.g., whether to check off dues would be an administrative burden on the compan . A company need not agree to a checkoff clause, but such is 'There is no maintenance-of-membership or similar clause in th, tln- tract. " 523 F 2d 783, 786 iC A . 1975). a mandatory subject of bargaining.7 }laving agreed to the principle of checking off dues, the Respondent could conceivablN have no legitimate reason for not remitting the dues to the recipient designated by the employees. Nor does the Respondent bring forth an) rea- son why it would agree to remit dues to the Union but not to another assignee. Since the Respondent has shown no reason why the clause should be narrowly construed, and absent specific language in the clause resolving the question. I conclude that the Respondent broadly agreed to remit dues to \shich- ever labor organization an employee might assign its receipt. Here the authorizations signed bo the employees are ialid assignments of their wages. And should there have been ans question, the letter of April 6 from the Union to the Respon- dent is a clear assignment of its right to receive dues toc I.ocal 4-620. 1 accordingly conclude that by refusing to check off dues from the wages of employees and remit them to Local 4-620, the Respondent breached its obligations undei the checkoff provision of the contract and thereby violated Sec- tion 8(a)(5) of the Act. 2. The Section 302 defense The Respondent contends that were it to honor the em- ployees' assignments and remit the dues money thus de- ducted from wages to Local 4-620. it would violate Section 302 of the Act and be in jeopardy of criminal prosecution Again, while this argument has some surface appeal. it is not meritorious. So far as is material here. the broad proscription of Sec- tion 302 is: It shall be unlawful for any employer . . to pas. lend, or deliver, or agree to pay. lend, or deliver. amn moner or other thing of value- (2) to an' labor organization, or any officer or em- ployee thereof, which represents, seeks to represent, or would admit to membership, an, of the rcmploees of such employer issho are emplo)ued in an indu,!trs af- fecting commrrce .. The evil'sought to he proscribed by Congress is obvious Congress, however, went on to provide that under certaiin circumstances and specific controlled conditions. pa).- ments of mones could i.awfulls be made to labor organ iia- tions. Pertinent here is subsection (c) and the proviso in sub- subsection (4) thereof: (c) 'Ihe provisions of this section 13021 shall not be applicable . .. (4) with respect to money deducted from the wages of employees in payment of member- ship dues in a labor organization: Provided, I hat the employer has received from each emplo'ee, on w hose account sach deductions are nmaide. a written assign- ment which shall not be irrevocahle foir i period of not more than one 'ear. or heysond the terminatiion da e of J I R /I l')7 t S " , I 1 'l-o 815 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the applicable collective agreement, whichever occurs sooner . The Respondent submits that by the proviso language, Congress meant that no dues checkoff could be made ab- sent a collective-bargaining agreement naming specifically the labor organization to receive the dues. The legislative history of this section does not reveal any such intent on the part of Congress. On the contrary, what Congress clearly had in mind by this proviso language was to prevent continuation of the then prevalent practice of labor organizations and em- ployers negotiating automatic dues checkoff. Congress wanted employees free to choose to have dues deducted from their wages or to pay their dues directly. And while unclear why Congress wrote in two limitation periods for the irrevocability of a checkoff assignment (I year and the termination of the applicable collective-bargaining agree- ment), 8 there is nothing in the Congressional Record to indicate that thecollectiveagreementhad tonamespecifically the union to receive the dues. Rather, the reference to a collective agreement appears to be made because it was in such instruments that unions and employees had agreed to automatic checkoff. Thus, explaining this provision to the Senate. Senator Ball stated: Finally, the fourth exception is with respect, but not to welfare funds, but to the so-called check-off. It does not prohibit the check-off, but provides that it is legal only where it is individually authorized by the employ- ee from whose wages the deduction is made, by an authorization that is irrevocable for a period of not more than I year. And Senator Taft stated: So far as the testimony shows that is the usual form of check-off. Under it the employee himself signs a slip or assignment authorizing the check-off. If he once signs such an assignment under the collective- bargaining agreement, it may continue indefinitely un- til revoked, and it may be irrevocable during the life of the particular contract, or for a period of 12 months. That, I think, is substantially in accord with nine- tenths of all check-off agreements, and simply pro- hibits a checkoff made without any consent whatever by the employees.' 0 Finally, the report of the Senate Committee on Labor and Public Welfare, in referring to this particular provision, stated: Thus, the amendment makes extortion illegal and also prevents the check-off of union dues unless au- thorized in writing by the individual employee. Such authorization may be irrevocable for a period of con- tract, which is the usual form of check-off today." See N1. R B . A4liantl Printing .Specialties and Paper Product t:Unon. srupra s II Leg. Hist. 1304 (1974). I< Id at 1311. H1 I eg Hisi 458 (1947) (S. Rep. No 105 on S 1126 Supplemental Views) From the limited amount of comment in connection with this section, it appears that Congress simply wanted to insure that employees' dues would not be deducted by an employer and remitted to a union without authorization from the individual employee, which becomes particularly important where maintenance of membership is also re- quired. Further, Congress clearly wanted such authoriza- tions as might be given by employees to be revocable at some point in time in order to prevent fraud and undue influence on employees by their representative. There is nothing in the legislative history from which to conclude that a written contract in which the employer agrees to make the dues checkoff is required. In fact, such case authority, as exists in this area, indicates that checkoff by an employer is permissible, assuming an appropriate authorization from an employee, even in the absence of a contract, e.g., where the contract has expired.' 2 If existance of a contract is not mandatory for operation of dues check- off, a fortiori a specific clause naming the assignee is not required. Of course, absent a contract the employer would not be obligated to make the deduction. But such cannot be equated with criminal liability should it do so. Nor is there any particular reason to believe that Con- gress meant to require a formalized agreement before al- lowing an employer to make dues deductions. For in- stance, the presence or absence of a checkoff clause in a contract would not seem to have any bearing on the possi- bility of extortion or on inhibiting employee rights. If an employee executes an assignment which by its terms meets the standards of Section 302(c)(4), why should not the em- ployer be able to honor it? Congress meant to protect employees. Such is accom- plished by their execution of a written assignment. If the employees here do not want their dues to be remitted to Local 4-620 they need not make the assignment. Having done so in clear language and by an assignment which tracks Section 302(c)(4), the situation which Congress sought to prevent does not exist. To accept the Respon- dent's argument that Section 302(c)(4) requires naming the dues assignee specifically in a collective agreement would not put an unjustifiably strict and narrow construction on this section of the Act. The fifth circuit rejected a somewhat similar contention in United Steel Workers of America, AFL-CIO v. United States Gipsum Co. 3 There the company had argued that an arbitrator's award requiring it to make dues payments pur- suant to a checkoff authorization clause without corre- sponding deductions from the employees' pay would ren- der it liable under Section 302. The court said: Since the purpose of § 302(a) is to protect employers from extortion and to insure honest, uninfluenced rep- resentation of employees, and in view of the exclusion from its coverage of an arbitrator's award we hold that § 302(a) does not render the arbitrator's award here unenforceable. [Citations omitted.] 14 In short, the construction of Section 302 suggested by 12 A' L. R. B. v. Atlanta Printing Specialties and Paper Products Union, supra. ' 492 F,2d 713 (C.A. 5. 1974). 14 Id at 734. 816 GULF-WANDES CORPORATION the Respondent is neither supported by the Congressional Record, nor by such case authority as has been referred to me or independent research has disclosed. Accordingly, I conclude that the Respondent's claim of possible criminal liability is not meritorious and does not excuse it from abiding by its contractual obligation. C. Conclusions While the violation here found does not necessarily in- clude subjective bad faith, it might be noted that had the Respondent actually had a good-faith belief that it was not required under the contract to make the dues deductions pursuant to the employee assignments, it could have taken courses of action other than it did. Thus, the Respondent could have agreed to submit the matter to arbitration, but it did not. Though refusing to submit to arbitration is not necessarily an unfair labor practice, such certainly, in situ- ations such as this, tends to be evidence of lack of good faith?5 The Respondent might also have put into an escrow account so much of their wages as the employees assigned pending determination of whether the money ought to be remitted to Local 4-620 or to the International. Again, while subjective bad faith is not an element of the violation here, to the extent that the Respondent would contend that its literal reading of the contract and Section 302 defenses somehow establishes good faith, I find that they do not. The Respondent further argues that by failing to submit the assignment form to it for approval, the International breached the contract. The flip side of this argument is the General Counsel's contention that the Respondent agreed to remit the dues to Local 4-620. During contract negotia- tions there were dicussions between the parties concerning the form to be used. The Union stated it intended to use the form that normally was used in the Baton Rouge area, and the Respondent agreed such would be sufficient. Thus, argues the General Counsel, the Respondent thereby im- plicitly agreed that the dues-checkoff clause was meant to include remittance to Local 4-620, since Local 4-620 is designated as the recipient in the form used by the Union in the Baton Rouge area. It is clear that the Respondent reserved the right to ap- prove the specific form, presumably in order to insure com- pliance with the provisions of Section 302. But by failing to require submission by the Union of the proposed form prior to execution of the contract, the Respondent waived 15 George E. Carroll, an Individual, d/b/a Carroll's Transfer Comprlna, e al., 56 NLRB 935 (1944). any rights it had thereunder. This I find from the testimony of James Riley even though J.D. Atkinson III indicated that his attorney said he wanted to look at it. In any event, I believe that Respondent and the Union meant that the employees would execute a form proper under Section 302(c)(4). That the form ultimately used names Local 4-620 does not imply the substance contend- ed for it by the General Counsel-that the parties agreed in the contract specifically that the Respondent would remit dues to Local 4-620. However, I do find that the Respon- dent waived approval of the specific form when assured that the one to be used was "standard dues check-off lan- guage." And in any event, here the Respondent does not suggest that the form as such is defective. I conclude that the Respondent has breached its collec- tive-bargaining obligations to the Union by refusing to remit dues to Local 4-620 pursuant to valid assignments by employees. Accordingly, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. IV E FECTE OF TlHE LNFAIR I.ABOR PRA( -i(E S IPON COMMER( E The unfair labor practices found are unfair labor prac- tices affecting commerce and the free flow of commerce and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. v IIE RFMEDY Having found that the Respondent has breached its bar- gaining obligations by not remitting to Local 4-620, pur- suant to appropriate assignment, dues of employees, I shall recommend that it cease and desist therefrom and forth- with commence making the appropriate deductions and remittances pursuant to such valid assignments as are sub- mitted to it. I shall also recommend that the Respondent pay to Local 4-620 all dues properly authorized to be de- ducted but which the Respondent failed to deduct and transmit to Local 4-620.16 The determination of which em- ployees signed valid authorizations and their effective dates is a matter for the compliance stage of this proceed- ing. Finally, the Respondent's liability under this remedy shall include interest as provided for in Florida Steel Corpo- ration, 17 [Recommended Order omitted from publication.] I~ SItI AIpole ('omprnpnts ( tnrarm, 232 Nl.RB 723 ( 1977) i 231 NTiRB 651 1977). Also see, generally. slv Plurnlbin & Hleaing ( o. 138 NLRR 71h (19621 817