United States Postal Service

40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Postal Service and Thomas M. FINDINGS OF FACT Dalton. Case 19-CA-17268 31 March 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On a charge filed 5 February 1985 by Thomas M. Dalton (the Charging Party), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a com- plaint and notice of hearing on 18 March 1985 against United States Postal Service (the Respond- ent). The complaint alleges that the Respondent violated Section 8(a)(1) and (2) of the National Labor Relations Act by refusing to honor Charg- ing Party Dalton's revocation of his union member- ship dues assignment from the American Postal Workers Union, AFL-CIO. The Respondent filed an answer to the complaint denying the commis- sion of any unfair labor practice. On 30 May 1985 the General Counsel, the Charging Party, and the Respondent filed a motion to transfer case to the Board and stipulation of facts in which they agreed to certain facts relevant to the issues in this proceeding. They also agreed to waive a hearing before an administrative law judge and the issuance of an administrative law judge's decision. Subsequent to the filing of the motion, the Respondent filed an amended answer to the complaint and the General Counsel filed a motion in support of stipulation of facts. On 30 August 1985 the American Postal Workers Union, AFL-CIO, and the National Association of Letter Carriers, AFL-CIO (the Intervenors), filed a motion to intervene. On 3 September 1985 the Board approved the stipulation and transferred the proceeding to the Board. On 15 October 1985 the Intervenors filed a request for clarification of the issues, and on 18 October 1985 the Intervenors filed an emergency motion to postpone pending clarification. On 21 October 1985 the General Counsel filed a response to the motion to intervene. On 22 October 1985 the Board granted the interve- nors' motion to intervene. Thereafter, the General Counsel, the Respondent, and the Intervenors filed briefs with the Board. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record, the Board makes the fol- lowing I. THE BUSINESS OF THE EMPLOYER The Respondent provides postal services for the United States of America and operates various fa- cilities throughout the United States, including the Seattle, Washington facility involved in this pro- ceeding. The Board has jurisdiction over the Re- spondent by virtue of the provisions of Chapter 12, Section 1209, of the Postal Reorganization Act, 39 U.S.C. § 101 (the PRA). II. THE LABOR ORGANIZATION American Postal Workers Union, AFL-CIO (APWU) is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE The Respondent and APWU are parties to a col- lective-bargaining agreement effective by its terms from about 21 July and 24 December 1984 to 20 July 1987. This agreement provides that, in con- formity with Section 1205 of the PRA, the Re- spondent "shall deduct and remit to the appropri- ate Union the regular and periodic Union dues from the pay of employees who are members of such Union," provided that the Respondent has re- ceived a written assignment from the employees in the following form: AUTHORIZATION FOR DEDUCTION OF UNION DUES UNITED STATES POSTAL SERVICE DATE I hereby assign to (Union) from any salary or wages earned or to be earned by me as your employee (in my present or any future employment by you) such regular and periodic membership dues as the Union may certify as due and owing from me, as may be established from time to time by said Union. I authorize and direct you to deduct such amounts from my pay and to remit same to said Union at such times and in such manner as may be agreed upon between you and the Union at any time while this authorization is in effect. This assignment, authorization and direction shall be irrevocable for a period of one (1) year from the date of delivery hereof to you, and I agree and direct that this assignment, au- thorization and direction shall be automatically renewed, and shall be irrevocable for succes- sive periods of one (1) year, unless written notice is given by me to you and the Union 279 NLRB No. 8 POSTAL SERVICE 41 not more than twenty (20) days and not less than ten (10) days prior to the expiration of each period of one ( 1) year. This assignment is freely made pursuant to the provisions of the Postal Reorganization Act and is not contingent upon the existence of any agreement between you and my Union. In October 1982 Charging Party Dalton signed an authorization, identical to the foregoing , for the assignment of union membership dues and deliv- ered it to the Respondent. By letter dated 25 January 1985, Dalton validly resigned his membership in the APWU. Dalton stated in this letter that while he was aware that he had signed an authorization for deduction of union dues which contained a provision that the assign- ment was irrevocable for a period of 1 year, unless written notice is given within a particular 10-day period, he was informing the Respondent that the assignment was to be revoked effective immediate- ly. About 28 January 1985, Dalton requested that the Respondent revoke the authorization for the as- signment of union membership dues . Thereafter, by letter dated 29 January 1985, the Respondent ad- vised Dalton that his revocation request would not be honored. IV. CONTENTIONS OF THE PARTIES The General Counsel contends that the Respond- ent was obligated to honor Dalton 's revocation re- quest because his authorization was executed in consideration of and as quid pro quo for union membership; that Dalton's valid resignation from union membership revoked the authorization as a matter of law; and that by continuing to withhold dues thereafter the Respondent violated Section 8(a)(1) and (2) of the Act. The Respondent contends that the terms of the dues authorization executed by Dalton and the pro- visions of the governing bargaining agreement pro- vide that the authorization is irrevocable except for certain identifiable "open" annual periods; that the PRA expressly authorized the irrevocability of dues authorizations in this manner; that Dalton's at- tempted revocation outside the designated open period was untimely; and that the Board , therefore, lacks authority to compel the Respondent to disre- gard the mandates of the bargaining agreement and the PRA regarding irrevocability. The Intervenors contend that the Respondent's refusal to process Dalton's revocation was in accord with the PRA; that the PRA specifically authorizes the checkoff system operated by the Re- spondent and the APWU; that the language of the authorization in this case does not state that pay- ment of dues is in consideration for union member- ship; and that the Act affirmatively permits em- ployers and unions to agree to checkoff provisions, as here, that are irrevocable for up to 1 year. V. DISCUSSION In Machinists Local 2045 (Eagle Signal), 268 NLRB 635, 637 ( 1984), the Board reiterated the well-settled rule of law applicable to the issues raised in this proceeding: It is established Board law that a dues- checkoff authorization, or wage assignment as it is called in this case, is a contract between an employee and his employer and that a res- ignation of union membership ordinarily does not revoke a checkoff authorization . However, a resignation will, by operation of law , revoke a checkoff authorization, even absent a revoca- tion request, where the authorization itself makes payment of dues a quid pro quo for union membership . This is so whether or not the resignation is made during the period for revocation set forth in the authorization itself. [Footnotes omitted.] Accordingly, the threshold issue in this case is whether the terms of the written assignment exe- cuted by employee Dalton "makes payment of dues a quid pro quo for union membership ." Eagle Signal at 637. If dues payment is a quid pro quo for union membership, a resignation from membership revokes the dues-checkoff authorization "whether or not the resignation is made during the period for revocation set forth in the authorization itself." Eagle Signal, supra. The assignment executed by Dalton specifically authorizes and directs the Respondent to assign to the Union: From any salary or wages earned or to be earned by me as your employee (in my present or any future employment by you) such regular and periodic membership dues as the Union may certify as due and owing from me, as may be es- tablished from time to time by said Union. [Emphasis added.] As contended by the General Counsel, the forego- ing assignment is in pertinent respects virtually in- distinguishable in character from the assignment at issue in Eagle Signal, which authorized the deduc- tion of dues from "regular monthly Union dues . . . in accordance with regular membership dues," and from that in Steelworkers Local 7450 (Asarco, Inc.), 246 NLRB 878 (1979), which directed a de- duction of dues "as my membership dues" in the union. In both Eagle Signal and Asarco, Inc., the Board concluded that the authorizations at issue 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clearly conveyed that the payment of dues was a quid pro quo for union membership and not for other financial obligations, such as "financial core" payments in lieu of membership.' In these circum- stances, and noting the similarity of the authoriza- tion at issue in this case to those executed in Eagle Signal and Asarco, we find that the authorization executed by Dalton clearly provides for the pay- ment of dues as a quid pro quo for union member- ship. Therefore, when Dalton validly resigned his union membership, the financial obligation underly- ing the execution of the authorization, i.e., the agreement to have membership dues assigned to the Union, ceased to exist for purposes of dues check- off. The Respondent and the Intervenors contend that irrespective of the application of Eagle Signal and Asarco, Inc., Section 1205 of the PRA man- dates a different result concerning dues-checkoff authorizations in the Postal Service. We find no merit in this contention. Section 1205 of the PRA authorizes the negotia- tion and voluntary execution of dues-checkoff au- thorizations that may be irrevocable for a maxi- mum period of 1 year.2 Section 1205 provides as follows: (a) When a labor organization holds exclu- sive recognition, or when an organization of personnel not subject to collective-bargaining agreements has consultation rights under sec- tion 1004 of this title, the Postal Service shall deduct the regular and periodic dues of the or- ganization from the pay of all members of the organization in the unit of recognition if the Post Office Department or the Postal Service has received from each employee, on whose account such deductions are made, a written assignment which shall be irrevocable for a period of not more than one year. (b) Any agreement in effect immediately prior to the date of enactment of the Postal Reorganization Act between the Post Office department and any organization of postal em- ployees which provides for deduction by the Department of the regular and periodic dues of the organization from the pay of its mem- bers, shall continue in full force and effect and the obligation for such deductions shall be as- sumed by the Postal Service. No such deduc- i Cf American Nurses' Assn , 250 NLRB 1324, 1331 (1980), in which the applicable contractual provisions provided for the payment of an amount equivalent to fees and dues either to the union as a member, to the union as a nonmember , or to a nonreligious tax exempt charitable in- stitution See also Frito Lay, Inc, 243 NLRB 137 (1979), in which the deduction of fees and dues set forth in the authorization rested on an agency shop "financial core" obligation 2 The PRA does not provide for any form of union security tion shall be made from the pay of any em- ployee except on his written assignment, which shall be irrevocable for a period of not more than one year. Although the PRA establishes a dues-checkoff system in the Postal Service pursuant to an em- ployee's voluntary written assignment, the PRA does not mandate that checkoff authorizations are irrevocable per se for 1 year irrespective of the nature of the contractual obligation undertaken by the employee executing the authorization.3 Thus, the provisions of the PRA are not inconsistent with well-established Board principles recognizing that a dues-checkoff authorization that by its terms makes payment of dues a quid pro quo for union member- ship is revocable by operation of law upon effec- tive resignation from union membership. Stated otherwise, Section 1205 of the PRA in no way alters or is inconsistent with the notion under the Act that, in determining the obligations of the par- ties pursuant to the voluntary execution of a dues- checkoff authorization, it is appropriate to focus upon the nature of the obligation actually incurred in the checkoff authorization.4 Under this inquiry, it is clear that, because of the nature of the obliga- tion incurred, the authorization executed by Charg- ing Party Dalton is revocable upon Dalton's valid resignation from union membership. In so finding, we emphasize that we are not holding that under the Act and the PRA all dues-checkoff authoriza- tions are "revocable at will" upon effective resigna- tion from union membership. We hold only that those dues-checkoff authorizations linking payment of dues to union membership, as here, are revocable when that link, i.e., union membership, ceases to exist by virtue of an effective resignation from membership. 5 Accordingly, we find that Charging Party Dal- ton's dues-checkoff authorization was revoked by operation of law when he resigned his union mem- bership, and that, as alleged, the Respondent violat- a The revocability provisions of the PRA essentially are in line with the revocability provisions of Sec 302(c)(4) of the Act which privilege voluntary dues-checkoff assignments and render them lawful as permissi- ble payments to employee representatives 4 We note that neither the Respondent nor the Intervenors refer to any specific legislative history supporting their contention that the PRA man- dates irrevocability for 1 year notwithstanding the nature of the obliga- tion actually incurred in the authorization itself Indeed , as we noted in Postal Service, 248 NLRB 5, 7 (1980), "[a] thorough examination of the numerous Committee reports and floor debates on the PRA discloses no indication that Congress was particularly concerned with the details of checkoff revocation (except for the establishment of the maximum of a I- year revocation period) " (Emphasis added) As we noted further in that case, Sec 1205(b) "permits changes in the revocation period within the limits of the I-year period " 248 NLRB at 7 5 Member Johansen notes that the same result is reached if we con- strue the authorization to continue but that , as the amount of dues owed is zero, zero is the amount to be deducted and remitted POSTAL SERVICE ed Section 8(a)(1) and (2) by refusing to honor Dalton's revocation.6 CONCLUSIONS OF LAW 1. United States Postal Service is subject to the jurisdiction of the National Labor Relations Board by virtue of 39 U.S.C. § 1209. 2. American Postal Workers Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to honor the revocation of dues- checkoff assignments by employees having effec- tively resigned from union membership, when the employees' dues-checkoff assignments were in con- sideration of union membership, the Respondent violated Section 8(a)(1) and (2) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (2) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action necessary to ef- fectuate the purposes of the Act. We shall order the Respondent to make employ- ee Thomas M. Dalton whole for any monetary loss he may have suffered by reason of the Respond- ent's unlawful refusal to honor his revocation of dues-checkoff assignment after he had effectively resigned his union membership, with interest in ac- cordance with the formula prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950); and Florida Steel Corp., 231 NLRB 651 (1977). ORDER The National Labor Relations Board orders that the Respondent, United States Postal Service, Seat- tle, Washington, its officers, agents, successors and assigns, shall 1. Cease and desist from (a) Refusing to honor the revocation of dues- checkoff assignment by employees having effec- tively resigned from union membership, when the employees' dues-checkoff assignments were in con- sideration of union membership. 6 The Intervenors' request for clanfication of the issues and their emer- gency motion to postpone pending clarification are denied 43 (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Reimburse or refund to Thomas M. Dalton the dues unlawfully collected from him, with inter- est, for the period following his valid resignation from membership and revocation of dues-checkoff assignment as set forth in the remedy section. (b) Post at its facility in Seattle, Washington, copies of the attached notice marked "Appendix."T Copies of the notice, on forms provided by the Re- gional Director for Region 19, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 7 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to honor the revocation of dues-checkoff assignment by employees having ef- fectively resigned from union membership, when the employees' dues-checkoff assignment was in consideration of union membership. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL reimburse or refund to Thomas M. ignation from membership and revocation of dues- Dalton the dues unlawfully collected from him, checkoff assignment. with interest, for the period following his valid res- UNITED STATES POSTAL SERVICE