American Telephone & Telegraph Co.

944 303 NLRB No. 140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 The expiration date of the most recent agreement is not set forth in the record. 2 The agreement also contains an agency-shop clause requiring the payment of amounts equivalent to union dues and fees but not requiring union member- ship. Under Florida statutes, employees may not be required to join a union or pay dues as a condition of employment. 3 The checkoff authorization card signed by Gawel provides in pertinent part: Beginning in lllll, I hereby authorize AT&T to deduct, each pay period from my salary or wages, sickness or accident disability payments, or vacation payments the amount of regular union dues prorated for the pay period or an amount equivalent thereto as certified to the Company by the Secretary Treasurer of the Communications Workers of America. This authorization is voluntarily made and is neither conditioned on my present or future membership in the Union, nor is it to be considered as the quid pro quo for membership. Each amount so deducted shall be re- mitted by the Company to the Secretary Treasurer of the Communications Workers of America or his duly authorized agent. This authorization shall continue in effect until canceled by written notice signed by me, and indi- vidually sent by certified mail to the Company, during the fourteen (14) day period prior to the anniversary date or termination date of the current or any subsequent Collective Bargaining Agreement. 4 473 U.S. 95 (1985). American Telephone and Telegraph Company and Loretta J. Gawel Communications Workers of America, Local 3102, AFL–CIO and Loretta J. Gawel. Case 12–CA– 13628 and 12–CB–3313 July 31, 1991 DECISION AND ORDER BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT Upon a charge filed by Loretta J. Gawel on Novem- ber 6, 1989, in Case 12–CA–13628 and a charge filed by Gawel on November 9, 1989, in Case 12–CB–3313, the Regional Director for Region 12 issued a consoli- dated complaint and notice of hearing on June 22, 1990. The complaint alleges that Respondent American Telephone and Telegraph Company (AT&T) has vio- lated Section 8(a)(1) and (3) of the National Labor Re- lations Act by deducting membership dues from the wages of the Charging Party pursuant to her checkoff authorization after she effectively resigned union mem- bership. The complaint further alleges that Respondent Communications Workers of America, Local 3102, AFL–CIO (Local 3102) has violated Section 8(b)(1)(A) and (2) of the Act by receiving, accepting, and retaining membership dues withheld from the wages of the Charging Party pursuant to her checkoff authorization after she effectively resigned union mem- bership. The Respondents both filed answers admitting in part and denying in part the allegations of the com- plaint and requesting that the complaint be dismissed. On August 15, 1990, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment and brief in support thereof. On Au- gust 21, 1990, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel’s Motion for Sum- mary Judgment should not be granted. Each Respond- ent filed a response to the Notice to Show Cause and opposition to the Motion for Summary Judgment. The General Counsel filed a reply brief. The Charging Party filed a brief in support of the General Counsel’s Motion for Summary Judgment. Local 3102 filed a reply brief, and the Charging Party filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The following facts are admitted or undisputed. Local 3102 and AT&T have been parties to successive collective-bargaining agreements, the most recent of which is effective from June 1, 1989, and at least through June 22, 1990, when the complaint issued.1 The agreement provides that employees who become members of Local 3102 may authorize AT&T to make monthly periodic deductions from their paychecks in amounts equal to periodic union dues, and remit those dues to Local 3102, by executing a dues-checkoff au- thorization card.2 On April 12, 1988, AT&T employee Loretta J. Gawel executed a checkoff-authorization card.3 On April 28, 1989, Gawel notified Local 3102 of her res- ignation of union membership. On April 29, 1989, Gawel notified AT&T of her resignation and requested the revocation of her dues checkoff authorization. On May 3, 1989, AT&T notified Gawel that it could not process her dues-checkoff revocation because it was not made during the period for revocation set forth in her checkoff authorization. Accordingly, AT&T has continued to deduct membership dues from Gawel’s wages and forward the dues to Local 3102, which has received, accepted, and retained them. The General Counsel and the Charging Party con- tend, inter alia, that continued deductions following resignation constitutes an unlawful restriction on an employee’s right to resign union membership under Pattern Makers League v. NLRB.4 The General Coun- sel and the Charging Party alternatively argue that res- ignation operates to reduce an employee’s dues obliga- tion to zero, because the employee is no longer a union member following resignation. Local 3102 and AT&T argue, inter alia, that the checkoff authorization voluntarily signed by Gawel is a contract which may be revoked only within the contractually permissible period. Because Gawel failed to revoke the authoriza- tion within that permissible period, and since the au- thorization explicitly states that it is neither condi- tioned on present or future membership in the Union, Local 3102 and AT&T argue that they may lawfully continue to deduct and receive dues pursuant to the au- 945 AMERICAN TELEPHONE & TELEGRAPH CO. 5 302 NLRB 322 (1991). 6 Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). 7 In Lockheed, the Board left open the question of how its waiver rule would apply in the context of a lawful union-security provision. Notwithstanding the inclusion of an agency-shop clause in the collective-bargaining agreement (see fn. 2, supra), we note that the sole basis cited by the Respondent Union for continuing to extract membership dues after an attempt to resign was the checkoff authorization itself. See also Rubber Workers Local 915 (Dunlop Tire), 302 NLRB 428, 429 fns. 2 and 8 (1991). 8 See Steelworkers Local 4671 (National Oil Well), 302 NLRB 367 (1991). thorization even after Gawel’s resignation from union membership. In Electrical Workers IBEW Local 2088 (Lockheed Space Operations),5 the Board set forth a new test for determining the effect of an employee’s resignation from union membership on that employee’s dues- checkoff authorization. The Board in Lockheed found that an employee may voluntarily agree to continue paying union dues pursuant to a checkoff authorization even after resignation of union membership. In fash- ioning a test to determine whether an employee has in fact agreed to do so, the Board recognized the funda- mental policies under the Act guaranteeing employees the right to refrain from belonging to and assisting a union, as well as the principle set forth by the Su- preme Court that waiver of such statutory rights must be clear and unmistakable.6 In order to give full effect to these fundamental labor policies, the Board stated that it would construe language relating to a checkoff author- ization’s irrevocability—i.e., language specifying an irrevocable duration for either 1 year from the date of the authorization’s execution or on the ex- piration of the existing collective-bargaining agreement—as pertaining only to the method by which dues payments will be made so long as dues payments are properly owing. We shall not read it as, by itself, a promise to pay dues beyond the term in which an employee is liable for dues on some other basis. Explicit language within the checkoff authorization clearly setting forth an ob- ligation to pay dues even in the absence of union membership will be required to establish that the employee has bound himself or herself to pay the dues even after resignation of membership [Id. at 328–329.]7 Applying the analysis of Lockheed to the facts in this case, we find that the Respondents have shown that the dues-checkoff authorization signed by the Charging Party obligated her to pay dues after her ef- fective resignation from membership in Local 3102. The authorization signed by Gawel provides that it is ‘‘voluntarily made and is neither conditioned on my present or future membership in the Union . . . .’’ We find that Gawel thus clearly authorized the continu- ation of her dues deduction even in the absence of union membership. Because there is explicit language within the checkoff authorization clearly setting forth an obligation to pay dues even in the absence of union membership, dues were still owing under Gawel’s checkoff authorization after her resignation.8 Inasmuch as under the checkoff authorization that she executed Gawel continued to have a dues obligation after her ef- fective resignation from the Union, we conclude that Respondent AT&T did not violate the Act by deduct- ing dues from her wages after her resignation, and that Respondent Local 3108 did not violate the Act by re- ceiving, accepting, and retaining those dues. Accord- ingly, we deny the General Counsel’s Motion for Sum- mary Judgment and we shall dismiss the complaint. ORDER The complaint is dismissed.