Furr's, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furr's, Inc. and Retail Clerks Union, Local 368, af- filiated with Retail Clerks International Union, AFL-CIO. Cases 16-CA-8499 and 16-CA- 8360 September 30, 1982 DECISION AND ORDER Upon charges duly filed in Case 16-CA-8360 on March 1, 1979, and in Case 16-CA-8499 on May 18, 1979, and an amendment thereof on May 29, 1979, by Retail Clerks Union, Local 368, affiliated with Retail Clerks International Union, AFL-CIO (the Charging Party or the Union), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 16, issued a con- solidated complaint and notice of hearing, dated June 7, 1979, against Furr's, Inc. (herein called Re- spondent). The complaint alleges that by refusing to check off the union dues of certain employees pursuant to a valid checkoff authorization, and to remit said dues to the Union pursuant to the par- ties' collective-bargaining agreement, Respondent had engaged in, and is engaging in, certain unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing were duly served on the parties. Respondent filed an answer to the complaint deny- ing the commission of unfair labor practices and re- questing that the Board defer to two recent arbitra- tion decisions interpreting the provisions of the col- lective-bargaining agreement applicable here. On July 6 and 9, 1979, the parties executed a stipula- tion of facts in which the parties waived a hearing before an administrative law judge and the issuance of an administrative law judge's decision, and agreed to submit the case to the Board for findings of fact, conclusions of law, and an order, based on a record consisting of the stipulation and the exhib- its attached thereto. On September 26, 1979, the Board issued an order approving the stipulation and transferring the proceeding to the Board. Thereafter, the General Counsel, Respondent, and the Charging Party filed briefs in support of their positions. On the basis of the stipulation, the briefs, and the entire record in this case, the Board makes the fol- lowing: FINDINGS OF FACT 1. JURISDICTION Respondent, a Texas corporation, with its princi- pal office in Lubbock, Texas, is engaged in operat- ing retail grocery stores in Texas and New Mexico. 264 NLRB No. 77 During the past 12 months, which period is repre- sentative of all times material herein, Respondent purchased and received directly from suppliers lo- cated outside Texas goods valued in excess of $50,000, and during the same period Respondent's dollar volume of business exceeded $500,000. Respondent admits, and we find, that it is, and at all times material herein has been, an employer as defined in Section 2(2) of the Act, engaged in com- merce and operations affecting commerce as de- fined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Prior to November 4, 1976, a majority of the em- ployees of Respondent, in the unit described below, designated the Union as their representative for the purposes of collective bargaining: All full time and part-time employees working for Respondent in stores located in Amarillo, Texas; excluding managers, assistant managers, second assistant managers, meat department employees, watchmen, guards and supervisors as defined in the Act. From April 3, 1978; and continuing to date, the Union has been the exclusive representative of the employees in the unit described above. On July 31, 1978, the Union and Respondent entered into a col- lective-bargaining agreement which by its terms was effective from April 3, 1978, to April 4, 1981. The preceding contract was effective from Septem- ber 29, 1976, to April 2, 1978. Both agreements in- cluded provisions for authorization of dues check- off directly from an employee's paycheck, with all collected sums being remitted directly to the Union. Specifically, article 2, section B, reads: B. Check Off. The Employer agrees to a check-off of Union membership dues, consist- ing of monthly dues, initiation fees, and uni- form assessments for all Union members cov- ered by this agreement, provided the Union delivers to the Employer a written authoriza- tion signed by the employee irrevocable for one (1) year or the expiration of this agree- ment, whichever occurs sooner. The checkoff authorization forms provided by the Union stated that: [t]his authorization may be revoked on any an- niversary date of this authorization or on the 554 FURR'S, INC. expiration date of any collective bargaining agreement between the Company and the Union, by written notice to the Company and the Union not more than fifteen (15) days or less than ten (10) days prior to such anniversa- ry date or such expiration date. Prior to the immediate controversy, Respondent and the Union had submitted to an arbitrator the issue of whether the aforedescribed checkoff au- thorization forms conflicted with article 2, section B, and article 19 of the contract. Article 19 states: The Employer agrees not to enter into any agreement or contract with his employees, in- dividually or collectively, which in any way conflicts with the terms and provisions of this Agreement. Pursuant to the 1976-78 contract, employees Frank Boyett, Greg Morrison, Vincent Simon, and Pete Zamaro, Jr., had requested Respondent to cancel their dues-checkoff authorizations, and Re- spondent had honored their requests. The Union protested Respondent's action, contending that since the revocation requests did not fall within the time periods prescribed in the checkoff authoriza- tion form, Respondent was not at liberty to honor those requests. The issue eventually came to a hearing before Arbitrator Russell Neas, on June 30, 1978. Subsequent to the hearing, but prior to the is- suance of the award, Respondent and the Union entered into negotiations toward their current 1978-81 contract. Neither party, however, pro- posed amendments or revisions to article 2, section B, or article 19, since each believed that the pend- ing arbitration award would vindicate its position. On July 19, 1978, the arbitrator issued his decision and award in favor of Respondent. On November 6, 1978, Respondent and the Union appeared before Arbitrator Harold Leeper on the identical issue, this time with respect to the revocation request of employee Dwight Bishop. On December 12, 1978, Arbitrator Leeper issued his opinion and award in favor of Respondent, affirming, in all aspects, Neas' earlier decision. Arbitrator Neas concluded in his decision that the absence of any contractual language evidencing an intent to incorporate by reference administrative machinery governing revocation of checkoff au- thorization indicated that the parties desired that matters pertaining to checkoff be controlled exclu- sively by the comprehensive and unambiguous terms of article 2, section B; those terms do not define any escape period limitations on checkoff re- vocability; and the escape period provisions in the authorization forms consequently conflicted with article 2, section B, and with article 19 of the con- tract. Arbitrator Leeper, in his subsequent decision, reached the same conclusions. Between July 18, 1978, and April 23, 1979, the following employees submitted requests for discon- tinuance of dues checkoff: Greg Baldwin, Linda Barnes, Edna Cameron, Joe Fenner, Sherrie Lynn Huskins, Donald Podzemny, Julie Poirot, and Andy Seals. Respondent honored these requests and eliminated dues deductions from their pay- checks. On or about February 15, 1979, the Union protested Respondent's honoring the withdrawal requests of Baldwin, Fenner, Hunter, Poirot, Pod- zemny, and Seals. By letter dated February 20, 1979, Respondent acknowledged the Union's pro- test, but stated that its actions were properly predi- cated on the contract and the arbitration decisions. B. Contentions of the Parties The General Counsel contends that the two arbi- tration awards are repugnant to the purposes and policies of the Act and thus deferral under Spiel- berg Manufacturing Company, 112 NLRB 1080 (1955), is inappropriate. In support of this conten- tion he relies on the Board's decision in Shen-Mar Food Products, Inc., 221 NLRB 1329, 1330 (1975), enfd. 557 F.2d 396 (4th Cir. 1977). The General Counsel argues that the fundamental weakness in the two arbitration opinions is that the arbitrators drew an improper inference from the absence of specific contractual language regarding implemen- tation of revocation of checkoff or the failure of the agreement to refer to external administrative machinery to govern revocation. The General Counsel asserts that the arbitrators erroneously construed this silence to be a waiver by the Union of its right to administer revocation of checkoff ac- cording to the terms appearing on the face of the authorization form. Citing Shen-Mar, the General Counsel argues that waiver cannot be inferred, absent specific contract language or bargaining his- tory demonstrating an intent to waive. To hold otherwise would permit Respondent unilaterally to determine the procedure governing revocation, a result the Union clearly did not intend. The Gener- al Counsel noted that the court, in enforcing the Board's Order in Shen-Mar, stated that "[t]he au- thorization card is the primary requisite to the va- lidity of any arrangement under the statute and the Board's conclusion that the authorization card and Article II of the agreement should be read together is consonant with the statutory pattern."' Accord- ingly, the General Counsel argues, since Respond- ent honored revocation requests that did not com- port with the revocation provisions set forth in the I ,L.R. RB Shen-Mar Food Products. Inc., 557 F. 2d at 399 555 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authorization form, it unilaterally altered its con- tractual obligation to the Union in violation of Sec- tion 8(a)(5) and (1) of the Act. For virtually the same reasons articulated by the General Counsel, the Union contends that Respondent's conduct constitutes clear violations of Section 8(a)(5) of the Act. Respondent, on the other hand, contends that the arbitration decisions fully comport with Board law and that the reasoning and conclusions embodied in those opinions should be adopted by the Board. It asserts that the arbitration proceedings were fair and regular, were attended by the parties, and the resulting awards were consonant with prior Board decisions. Thus, as the arbitrations fully comply with Spielberg standards, the Board should defer to the awards and dismiss the complaint. Substantive- ly, Respondent argues that the contractual provi- sions involved in the current controversy are clear, and, in accordance with the recent arbitration deci- sions, should be accorded their plain meaning. Arti- cle 2, section B, mirroring the language of Section 302(c)(4) of the Act, Respondent says, sets forth the conditions under which an employee can au- thorize Respondent to deduct dues from his/her paycheck and remit that amount directly to the Union. Article 19 provides that Respondent will not enter into any agreement with its employees which will conflict with the terms of the collec- tive-bargaining agreement. As the agreement to deduct dues is an agreement between employer and employee, any provision contained in the checkoff authorization which contravenes article 2, section B, would be void under article 19. Thus, Respond- ent argues that since the limited escape period set forth on the authorization form is without a con- tractual predicate, that provision is without effect. Therefore, as its conduct is clearly in accord with its contractual obligations, Respondent argues that the Union's contentions are without merit. Re- spondent further argues that the General Counsel's and Charging Party's reliance on Shen-Mar, supra, is misplaced, since the cases are factually distin- guishable. Thus, contrary to the instant contract, the agreement in Shen-Mar, supra, did not contain statutory checkoff language and therefore it was in- cumbent upon the parties to look to the authoriza- tion form to set the minimum parameters regarding the parties obligations with respect to checkoff, in- cluding revocation. As the instant agreement pro- vides the legal requirements for checkoff and revo- cation, recourse to an external document, i.e., the authorization card, is unnecessary. Analysis and Conclusions Under Spielberg, supra, the Board will defer to an arbitrator's decision where (1) the proceedings appear to have been fair and regular; (2) all parties have agreed to be bound by the arbitrator's deci- sion; and (3) the arbitrator's decision is not "clearly repugnant" to the Act. Here, the General Counsel and the Union contend that the decisions are re- pugnant, apparently conceding that the other crite- ria have been met. In any event, it is clear that the proceedings were fair and regular and that the par- ties, the Union and Respondent, agreed to be bound by the arbitrator's decision. Of course, the two awards did not involve the employees who are named in this proceeding as having requested Re- spondent to terminate their checkoff authorizations. However, deferral is appropriate in the instant case since the prior arbitrations involved the same con- tractual question relevant to the employees here, and, in this instance, the interests of these employ- ees were adequately represented by the Company which argued the same position to the arbitrators as that taken by the employees now. Under these circumstances, "we find no serious procedural infir- mities in the arbitration proceedings which warrant disregarding the arbitrator's award." 2 In addition, we find that the awards are not clearly repugnant to the purposes and policies of the Act. The Act itself requires only, in Section 302(c)(4), that employees be accorded an opportu- nity to revoke their checkoff authorizations at least once a year and at the termination of any applica- ble collective-bargaining agreements.3 Beyond that, it is well-established Board law that disputes about checkoff procedures essentially involve contract in- terpretations rather than interpretation and applica- tion of the Act.4 Furthermore, the Board has spe- cifically recognized that such contract issues are fully capable of resolution through arbitration.5 The arbitrators here have found that the parties clearly contemplated implementation of dues- checkoff procedures and so unambiguously pro- vided in article 2, section B, of the contract that Respondent will honor authorizations that are ir- revocable for 1 year or at the expiration of the col- lective-bargaining agreement, whichever event occurs first. The contract contains no other provi- sion governing revocation of an employee's check- off authorization, nor is there any reference to an extra-contractual procedure to cover such an oc- 2 International Harvester Company, 138 NLRB 923, 928 (1962). 3 E.g., Frito-Lay, Inc., 243 NLRB 137 (1978). 4Frito-Lay. Inc.. supra; International Chemical Workers Union. Local 143, AFL-CIO (Lederle Laboratories, Division of American Cyanamid Company), 188 NLRB 705, 707 (1971). 6 The Associated Press, 199 NLRB 1110, 1114 (1972). 556 FURR'S, INC. currence. In addition, under article 19 of the con- tract Respondent is prohibited from entering into any agreement that would conflict with the con- tract. Having determined that the parties intended that their contract set forth only the initial period barring dues-checkoff revocation, and since the parties' rights and obligations with respect to that subject are defined by collective bargaining, the ar- bitrators decided that the presence of a more re- strictive unilaterally devised revocation procedure in the authorization contract conflicted with the controlling bargaining agreement provisions and was thus unenforceable. Accordingly, the arbitra- tors concluded that Respondent had no contractual obligation to honor the procedures outlined in the authorization form. Whether the Board would have made the same interpretation of the contract on de novo review of the facts is immaterial here. Before deferring under Spielberg, we need only be satisfied that the arbitra- tors' interpretations were not clearly wrong as a matter of law. The General Counsel argues that legal principles set forth in Shen-Mar mandate a contrary interpretation of the contract here. We disagree. The General Counsel, as noted, argues that the Board's decision in Shen-Mar, supra, is dispositive of the case at bar. We disagree. In Shen-Mar the parties negotiated a collective-bargaining agree- ment which included, in pertinent part, the follow- ing provisions regarding checkoff: Section 1. The Company agrees to checkoff from the pay of its employees, who are mem- bers of the Union, the regular monthly dues and initiation fees and to pay such monies col- lected to the proper officers of the Union. Section 2. The Union agrees to furnish to the Company, individual dues deduction au- thorization slips voluntarily signed by its em- ployees for the purpose of this checkoff. Section 3. The Union will indemnify and save harmless the Company from any and all claims and disputes by reason of the Compa- ny's acting in reliance upon the voluntary as- signments furnished it. The checkoff authorization form, aside from tracking the statutory language in Section 302(c)(4), 6 provided that the authorization would 6 Sec. 302 of the Act, in pertinent part, prohibits the payment of money by an employer to a labor organization, with certain exceptions. Among the exceptions is Sec 302(cX 4) which permits 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 irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner .... be automatically renewed unless written notice by registered mail was received by the employer and the union between the 10th and 20th day prior to the anniversary date of the execution of the author- ization or the termination of the applicable agree- ment. In finding that the employer violated Section 8(a)(5) by honoring untimely requests for revoca- tion, the Board found that the contract clause "clearly incorporate(d) by reference the voluntary checkoff authorizations" and thus the employer was obligated to comply with the revocation pro- cedures contained therein. An alternative conclu- sion, under the circumstances of that case, would have vested in respondent the unilateral right to determine checkoff revocation procedures. In contrast to the contract as interpreted by the Board in Shen-Mar, the contract as interpreted by the arbitrators herein provides comprehensively for checkoff procedures and fully sets forth the parties' attendant obligations. The arbitrators consequently perceived no need for reference to authorization forms for clarification of the parties' unambiguous contractual commitments. Contrary to the General Counsel's assertion, the arbitrators did not affirm Respondent's unilateral right to determine when it would accept dues revocations. They merely de- fined the revocation procedures for which Re- spondent and the Union had knowingly bargained and were thereafter mutually bound to honor. For purposes of our Spielberg analysis, we are satisfied that the Board clearly did not hold in Shen-Mar, nor has it held elsewhere, that either the contract interpretation made by the arbitrators or the revo- cation procedure upon which they found the par- ties to have agreed would be repugnant to the Act. 7 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER FANNING, concurring: I concur with my colleagues in dismissing the 8(a)(5) allegations herein, although I do so for somewhat different reasons. The facts are relatively 7Our dissenting colleague views our decision herein as an affirmation of an arbitral finding that the Union has waived its right to participate in collective-bargaining for the determination of dues revocation proce- dures. We emphasize that no such finding of waiver is at issue. The arbi- trators have defined a negotiated bilateral agreement which by itself con- tains sufficient and clear terms intended to be exclusively controlling with respect to both dues checkoff and revocation Consequently, the ar- bitrators found that Respondent was not bound to honor further restric- tions on dues revocation unilaterally imposed by the Union in extra-con- tractual dues authorization forms. 557 DECISIONS OF NATIONAL LABOR RELATIONS BOARD straightforward. Briefly, Respondent-Employer pursuant to its interpretation of the parties then current 1976-78 contract honored certain employ- ees' requests to revoke their dues-checkoff authori- zations. The Union grieved and the matter eventu- ally proceeded to arbitration. The arbitrator issued a written award upholding the Employer's action and interpretation of the contract. Thereafter, the parties signed their 1978-81 contract, which, in pertinent part, retained the identical language. The same question was again presented for arbitration after the Employer honored the request of employ- ee Bishop to discontinue his dues checkoff. The second arbitrator also issued an award upholding the Employer's actions as consistent with the par- ties' collective-bargaining agreement. When Re- spondent thereafter similarly honored revocation requests submitted by other employees, the Union by letter of February 15, 1979, protested Respond- ent's action and advised that it was referring the matter to its attorney for arbitration. By letter dated February 20, 1979, Respondent acknowl- edged the Union's protest but iterated that its action was taken under what it considered to be the proper interpretation of the parties agreement, which had "been supported by two recent and con- secutive arbitrations." Thereafter, the Union filed the charges herein. Counsel for the General Counsel argues that the Union, having twice attempted unsuccessfully to resolve the matter to its liking through the parties' agreed-upon grievance-arbitration procedures in both the present and previous contracts, felt com- pelled to file the instant charges. When the Compa- ny refused to alter its stance and "recognize the propriety" of the Union's position, choosing instead to adhere to its own steadily maintained position, urges the General Counsel, it thus violated Section 8(a)(5). I do not agree. In my view, the action taken by Respondent in full consonance with its own interpretation of the contract, and the arbitrators' awards delineating the meaning of the clause at issue does not, in the cir- cumstances herein, constitute a violation of Section 8(a)(5). This does not mean that I necessarily concur with the arbitrators' interpretations and conclusions. Indeed, in most instances, I believe the better policy is that enunciated in our decision in Shen-Mar Food Products, Inc., 221 NLRB 1329 (1976). In that case, we found, as a factual matter, that the checkoff authorization cards were clearly incorporated into the collective-bargaining agree- ment between the union and respondent. We fur- ther indicated that sound labor policy warrants drawing such an inference in the absence either of contract language to the contrary, or a history of negotiations to the latter effect. But the ultimate issue is the correct interpretation of the clause, what it is to which the parties agreed. More par- ticularly whether or not Respondent agreed to the Union's interpretation. If it had not, it did not vio- late the Act. When the parties signed their 1978-81 agreement the question of the applicable contract clause's in- terpretation had already been disputed, and an answer provided through the parties' arbitration procedure which vindicated Respondent. Whether this Board would have reached a similar conclu- sion in the first instance is not in my view disposi- tive here. There is no indication Respondent in the 1978-81 contract reversed its position and acqui- esced in the view urged by the Union. Indeed, the very fact that the construction of the contract pre- viously urged by Respondent had already been sus- tained in the parties arbitration of the issue became in itself a part of the parties' understanding of the substance of their agreement, and a constituent ele- ment in their bargaining history. This is unlike the situation in Shen-Mar where respondent predicated its new action on its contention that the State's right-to-work law precluded it from deducting dues of employees who terminated membership in the union. Rather, Respondent here has acted consist- ently in accord with an interpretation of the con- tract supported by the bargaining history. There has been no showing that when Respondent en- tered into the second contract, the one at issue here, fresh from its arbitration victory, it altered its position and acceded to the union view. If it did not agree to the union position, of course, its fail- ure to adhere to the Union's view later was not un- lawful. In these circumstances, I concur with my colleagues in dismissing the complaint herein. MEMBER JENKINS, dissenting: I cannot agree with my colleagues that here the Board should defer to the arbitrators' award under the principles enunciated in Spielberg Manufactur- ing Company, 112 NLRB 1080 (1955). Instead, I agree with the General Counsel's contentions that the Board's decision in Shen-Mar Food Products, Inc., 221 NLRB 1329 (1976), is controlling here and that the arbitrators' awards are plainly and wholly at odds with that precedent. In addition, I believe that consideration by the Board of the case on its merits would compel a finding that Respond- ent violated Section 8(a)(5) and (1) of the Act by honoring employees' requests for revocation of dues checkoff which were untimely under the terms of the authorization cards. The contract here provides that the Employer agrees to a checkoff of union membership dues 558 FURR'S, INC. "provided the Union delivers to the Employer a written authorization signed by the employee irrev- ocable for one (1) year or the expiration of the contract, whichever occurs sooner." The scope of the provision is clear: it provides for dues checkoff in conformity with the statute,8 but it is silent with respect to specific revocation procedures. My colleagues find that the contract on its face is silent with respect to any specific limitation on dues other than that dues checkoff be in conform- ity with the statute. Implicitly, they recognize, as the arbitrators found, that the contract contains no procedure governing the initiation, execution, transmission, notification, or administration of an employee's revocation request. Had the Union in- tended to surrender to Respondent the right unilat- erally to cease dues deductions such provision could have been set forth in the contract. Absent any such provision, my colleagues nevertheless have adopted the arbitrators' treatment of contrac- tual silence as a union waiver of any right to ad- minister the checkoff procedures as set forth on the face of the authorization form.9 This finding by my colleagues is wholly at odds with the Board's decision in Shen-Mar. There, the Board held that it will not infer that a union sur- rendered to an employer the right unilaterally to cease dues deductions, despite the existence of valid voluntary dues authorizations, "in the absence of unambiguous contract language to that effect or a history of negotiations demonstrating that fact." My colleagues fail to specify any unambiguous contract language granting such a waiver. They also fail to point to any history of negotiations demonstrating a waiver. This failure to describe such evidence is understandable. There is no such language in the contract. There is no such evidence in the factual stipulation. 10 s Sec. 302 of the Act, in pertinent part, prohibits the payment of money by an employer to a labor organization, with certain exceptions. Among the exceptions is Sec. 302(cX4) which permits 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 irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner ... 9 In finding that Respondent had no contractual obligation to honor the procedures outlined in the authorization form, both arbitrators relied on the lack of any contractual language in art. 2, setting forth rules gov- erning the administration of checkoff procedures. Thus, the arbitrators treated this contractual silence as a union waiver of any right to adminis- ter the checkoff procedure as set forth on the face of the authorization form. i' Although my colleagues contend that "no such finding of waiver is at issue" here, they also state that "The arbitrators (rather than the par- ties] have defined a negotiated bilateral agreement . . . exclusively con- trolling . .. revocation " But the arbitrators specifically found that the "contract contains no procedure governing initiation, execution, transmis- sion, notification, or administration of an employee's revocation request." Thus, it was from contractual silence that the arbitrators decided that the My colleagues also rely on the inclusion of arti- cle 19 in the contract to support their finding that the parties intended the contract be silent with re- spect to specific revocation procedures. Article 19 merely provides, however, that the "employer agrees not to enter into an agreement or contract with the employees . . . which in any way con- flicts with the terms and provisions of this agree- ment." Although my colleagues concede that the contract covers only the initial period of irrevoca- bility in accord with the Act, they nevertheless find that the provisions of the authorization must be deemed to be in conflict with the contract. But it is readily apparent that the conflict between the authorization and the contract arises from a "con- tractual term" inferred from contractual silence by my colleagues, directly contrary to the Board's de- cision in Shen-Mar. " Hence, I dissent from my colleagues' deferral to the arbitrators' awards that are plainly and wholly at odds with Board prece- dent. On the merits, I find no basis on the record here for reaching a result different from Shen-Mar. Indeed, in all respects critical to the allegations before us, the cases are similar.' 2 Thus, the con- tracts in neither case contain procedures governing an employee's revocation request. Both contracts, however, refer to the union's providing to the em- parties must have intended that Respondent v as not bound to honor the dues revocation procedures set forth on the authorization form. This find- ing is, however, wholly at odds with the Board's decision in Shen-.Mar, as discussed elsewhere in this Decisiol, including fn 12. infra. I also disagree with my colleague's concurring opinion that a different result obtains here, as opposed to Shen-Mar, because Respondent's inter- pretation or the contract is supported by the bargaining history; i.e., the arbitration decisions Although this view has certain superficial appeal, the fact remains that contractual silence is being used to show that Re- spondent was not bound to honor the dues revocation procedure set forth on the authorization form. Thus, if both parties had agreed with the arbitrator's decisions, as obviously they have not from the existence of this proceeding, they could have incorporated the agreement in the new contract Clearly, they neither agreed nor changed the contract Indeed. the stipulated record here is silent on this matter "1 An effect of my colleagues' opinion is that an "irrevocable for I year" checkoff authorization becomes revocable at will despite the fact that neither the contract nor the authorization form provides for such an open-ended escape period. 12 In Shen-Mar, the Board held in part: Article 11, section 2, of the contract requires the Union to furnish the Respondent with the "individual dues authorization slips" which obviously refer to the authorization cards submitted to Respondent. Respondent therefore knew that the attempted revocations were un- timely. We cannot conclude that these individual dues authorization slips, referred to in the contract, are contracts separately arrived at between the Union and the employees involved. and have no bearing on Respondent's contractual duty. Indeed, that construction is tanta- mount to saying that the Union surrendered to Respondent the right to unilaterally cease dues deductions, despite the existence of valid voluntary dues authorizations Such an intent is so contrary to labor relations experience that it should not be inferred in the absence of unambiguous contract language to that effect or a history of negotia- tions demonstrating that fact 2 Neither exists in the instant case 2 See C & C Plynood Corporation, 148 NLRB 414 (1964), enfd 385 US 421 (1967) 559 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer an authorization signed by the employee.13 'a As my colleagues state, the Board found in Shen-Mar that the em- ployer violated Sec. 8(aX5) by honoring untimely requests for revocation where the contract clause clearly incorporated by reference the volun- tary checkoff authorizations and thus the employer was obligated to comply with the revocation procedures contained therein. The contract here similarly provides that the Union deliver to the Em- ployer a written authorization signed by the employee. In the absence of not only a contractual provision governing revocation procedures but also unambiguous contract language or a history of negotiations demon- strating that the Union had waived any right to administer the checkoff procedures as set forth in the authorization, I see no reason for finding there that Respondent was not obligated to comply with the valid volun- tary revocation procedures contained in the authorizations signed by the employees. To find otherwise would be to give Respondent the unilateral right to determine checkoff revocation procedures, which my colleagues recognize would have been an "alternative conclusion" in Shen-Mar. I note that the Fourth Circuit, in enforcing the Board's Order in Shen- Mar, stated that "It]he employee's authorization card is the primary req- uisite to the validity of any arrangement under the statute, and the Board's conclusion that the authorization card and Article II of the agreement should be read together is consonant with the statutory pat- tern." N.L.R.B. v. Shen-Mar Food Products, Inc.. 557 F.2d 396 (1977). Similarly, both authorizations track Section 302 of the Act and include valid voluntary revocation procedures.1 4 The only difference in the two con- tracts for the purposes of the allegations here is that the instant contract, but not in Shen-Mar, pro- vides on the face of the contract for the initial period of irrevocability of dues checkoff in con- formity with the statute. This difference in contrac- tual language does not justify a different result, however, because the statutory language is not at odds with the terms of the authorization. Thus, I would find that Respondent violated Section 8(a)(5) and (1) by honoring employees' requests for revocation of dues checkoff which were untimely under the terms of the authorization cards. 14 There is no dispute that the escape periods and revocation proce- dures on the face of the authorizations are valid. 560