National Association Of Letter Carriers (United States Postal Service)

644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD National Association of Letter Carriers (United States Postal Service) and Marvin Hill. Case 10-CB-4823(P) 14 April 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN` AND BABSON On 21 January 1987 Administrative Law Judge J. Pargen Robertson issued the attached decision. The Respondent' filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefand has decided to affirm the judge's rulings, findings, and conclusions' and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, National As- sociation of Letter Carriers, Dunwoody, "Georgia, its officers, agents, and representatives, shall take the action set forth in the Order. FINDINGS OF FACT This case involves the unsuccessful efforts of ° union member Marvin Hill to resign from the Union ' and- to revoke his checkoff authorization. Respondent and the Postal Service are parties to an existing collective-bar- gaining agreement which expires on 20 July 1987. Marvin Hill is employed in the unit encompassed by that collective-bargaining agreement. The collective-bargain- ing agreement does not require employees to become members of the Union or to pay dues to the Union. Marvin Hill is employed by the United States Postal Service - as a letter carrier. During his employment Hill has been a member of the Union. `Hill signed a dues- checkoff authorization (form 1187) on 23 - November 1984. In early June 1986, Hill phoned Union Branch Vice President Charles Windham -that he wanted "to, with- draw from the Union." Windham testified that he was phoned by Hill and that, among other things, Hill told Windham that "he wanted to get out of the Union." Ac- cording to Hill, Windham told him that he could not withdraw until his "anniversary date." Hill wrote Windham on 13 June 1986: This letter is to inform you that I am withdrawing my membership to the Union .immediately and would like for dues not to be taken out of my check. I will complete whatever forms are neces- sary to complete the transaction. I formally, request a response concerning this matter within 10 (ten) days to the address provided below. 1 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. Mary L. Bully Esq., for the General Counsel. Richard N. Gilberg and Devon Lee Miller, Esqs., for the Respondent. DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge. This case was- heard in Atlanta, Georgia, on 2 October -1986. The complaint, which was filed on 29 August 1986, was based on a charge filed 5 August 1986. It is admitted that the Employer in this case, United States Postal Service, provides postal services for the United States of America and operates various facilities through- out the, United States, including the facility in Dun- woody, Georgia, involved in this proceeding. Addition- ally, Respondent, National Association of Letter Carri- ers, is admitted to be a labor organization within the meaning of Section 2(5) of the Act. I find that the Board has jurisdiction over Respondent by virtue of the provi- sions of the Postal Reorganization Act, 39 U.S.C. § 1209(a). On 20 June 1986 Windham responded: We have received your request to withdraw your membership from the NALC. As we discussed in our phone ' conversation, ours is an open shop and you are not forced to belong to our labor organiza- tion. Our records indicate that your application was processed in December, 1984. As I told you at the time of our conversation, Form 1188- must be exe- cuted to withdraw your membership. This is a,per- sonnel controlled form used by the Postal Service. The union cannot process this form for you nor can we change the requirements under Section B of Form 1187. I have attached a copy of form 1187 for your inspection. Section B is self-explanatory and the reason why you will not be able to withdraw your membership until your anniversary date. I trust that this response is satisfactory. In closing, if you have some problems that we are not aware of, President Taylor and myself remain willing to discuss them with you. You could contact us by phone or, set up an appointment to come in. I feel- that you lose far more than you could ever gain by dropping your membership. Hill again wrote Windham. The second letter, which was received by Windham on 2 July 1986, stated: 283 NLRB No. 96 LETTER CARRIERS (POSTAL SERVICE) This letter is to request a copy of the form I signed making me a union Member. Also it is, to inform you that your Answer to my request to withdraw from the Union was unacceptable. There are legal questions concerning voluntary deductions from an Individuals paycheck. We will find an answer to legal question at a later date. The neces- sary Complaints and Motions are, being filed with legal couns [sic] State & Federal labor boards, (In- cluding a letter of complaint to the National head- quarters about the problem and especially about your attitude in your conversation with me), and consumer complaint agencies. (Since I am paying for a service). I hope we can avoid litigation in this matter for the good of everyone involved. I wish you would be so kind to respond to the letter within seven (7) days. Hill also contacted the United States Postal Service. By letter delivered 11 July 1986, Hill told the Postal Service that he was resigning from the Union effective immediately. Hill also submitted a signed form 1188, which is the form used by the Postal Service employees to cancel payroll deductions. Hill's form '1188, which was dated 30 June 1986, shows that he canceled his au- thorization for the deduction of dues of the National As- sociation of Letter Carriers. Neither the Union nor the Postal Service accepted Hill's resignation or his cancellation of dues-deduction authorization. Dues continued to be deducted from Hill's pay and accepted by the Union. During the hearing and again in its brief, Respondent argued that Hill's only efforts to resign and withdraw dues-deduction authorization were directed to the branch and to the United States Postal Service and that the branch was not acting as agent ' for the Union in that regard. Hill did indeed admit that he did not contact the Union. However, in response to my questions during the hear- ing, Respondent's attorney admitted that a member's,res- ignation request may be presented locally. - 11 The evidence illustrated that Hill's contacts were all with' the branch as opposed to the Union. Local Vice President Windham testified the branch,presents an "ori- entation package", to new employees, which includes a copy of form 1187. Form 1187 is the dues-deduction au- thorization form. Additionally, the branch's shop steward provides form 1187 to employees and, on request, form 1187 will be mailed to an employee by the branch union office. CONCLUSIONS In Pattern Makers v' NLRB, 473 U.S. 95 (1985), the Supreme Court approved the National Labor Relations Board policy regarding unrestricted rights of union mem- bers to resign. The Court stated: The Board has found union restrictions on the right to resign to be inconsistent with the policy of vol- untary unionism implicit in § 8(a)(3). [See Machinists Local 1414 (Neufeld Porshe-Audi), 270 NLRB 1330 (1984); Machinists Local 1327 (Dalmo Victor), 263 645 NLRB 992 (Chairman Van de Water and Member Hunter, concurring), enf. denied 725 F.2d 1212 (1984).] We believe that the inconsistency between union restrictions on the right to resign and the policy of voluntary unionism supports the Board's conclusion that League Law 13 is invalid. 'i[Footnote omitted.] By allowing employees to resign from a union at any time, § 8(a)(3) protects the employees whose views come to diverge from those of his union. The authorization for dues deduction signed by Hill on 23 November 1984 links payment of dues to union mem- bership by specifying that the deduction is limited to "regular and periodic membership dues," In Postal Serv- ice, 279 NLRB 40 (1986), the Board found a violation where the employer refused to honor dues-checkoff rev- ocation by an employee that had effectively resigned from union membership. In Postal Service, 280 NLRB 1439 (1986), the Board held that resignations from the union are effective with- out regard to the union's 'efforts to place limitations on the time of resignation. In that case the 'Board also stated that the Postal Service dues-checkoff authorization pro- vides "for the payment of dues as a quid pro' quo for union membership and was therefore revocable when union membership ceased to exist by virtue of an effec- tive resignation from membership." Those cases control the instant controversy. Respond- ent argues, however, that the branch of the Union was not acting on behalf of the National and,-for that reason, Hill's letters to the branch could not serve as resignation from the the National. The' National is the only party charged by the complaint. However, Respondent's coun- sel admitted that it was a practice of the branch to accept resignations. Obviously, Respondent cannot hold Hill to a more onerous requirement that it customarily follows in resignations. Therefore, Respondent's point is without merit. By its letter to Hill dated 20 June 1986 the branch spe- cifically refused to accept Hill's resignation until his "an- niversary date" and until Hill executed form 1188 with the Postal Service. By attempting' to limit Hill' s resigna- tion, Respondent thereby violated Section 8(b)(1)(A). Additionally, Respondent violated Section 8(b)(1)(A) by continuing' to accept membership dues from the Postal Service on behalf of Marvin Hill. CONCLUSIONS OF LAW 1. United States Postal Service is subject to the juris- diction of the National Labor Relations Board by virtue of 39 U.S.C. -§ 1209. 2. Respondent is a -labor organization as defined in Section 2(5) of the Act. 3. By refusing to honor his resignation from the Union and the revocation of dues-checkoff assignments by em- ployee Marvin Hill where those dues-checkoff assign- ments were in consideration of union membership, Re- spondent violated Section 8(b)(1)(A) of the Act. 646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the purposes of the Act. I recommend that Respondent be ordered to make employee Marvin Hill whole for any monetary loss he may have suffered by reason of Re- spondent's unlawful refusal to honor his resignation and revocation of dues-checkoff assignment. Those amounts are to be computed in the manner consistent with the Board policies stated in Ogle Protection Service, 183 NLRB 682 (1970), with interest in accordance with the formula prescribed in Florida Steel Corp., 231 NLRB 651 (1977). Additionally, Respondent is directed to cease maintain- ing or enforcing all provisions of governing documents which unlawfully restrict the rights of members to resign from the Union. To the extent Respondent may legally remove those written restrictions unilaterally, it is direct- ed to do so and, if those provisions require actions by the Employer, Respondent is directed to advise the Employ- er of the effect of this decision and of its desire to remove all unlawful restrictions to a member's right to resign from all governing documents including the form used by the Employer to authorize checkoff of union dues. Auto Workers Local 73 (McDonnell Douglas), 282 NLRB 466 (1986). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, National Association of Letter Carri- ers, Dunwood, Georgia, its officers, agents, and repre- sentatives, shall 1. Cease and desist from restraining and coercing em- ployees by refusing to permit them to resign their union membership, by refusing to honor revocation of dues- checkoff assignments by employees having effectively re- signed from union membership, by maintaining or en- forcing provisions in- governing documents which unlaw- fully restrict members' rights to resign from the Union, or by in any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Reimburse and refund to Marvin Hill the dues un- lawfully collected from him, with interest, from the time of his resignation from union membership and revocation 1 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order, shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. of dues-checkoff assignments, as set forth in the remedy section of this decision. (b) Delete provisions in its governing documents, and advise the Employer of its desire to delete provisions in governing documents maintained by the Employer, which unlawfully restrict members' rights to resign from the Union. (c) Post at its facility in Dunwoody, Georgia, copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 2 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 MEMBERS 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 or- dered us to post and abide by this notice. WE WILL NOT refuse to honor valid resignations by employees from union membership. WE WILL NOT refuse to honor revocation of dues- checkoff assignments by employees having effectively re- signed from union membership when the employees' dues-checkoff assignments are in consideration of union membership. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL delete all provisions in our governing docu- ments, and request the United States Postal Service to delete provisions in documents which it maintains or en- forces, which unlawfully restrict members' tights to resign from the Union. - WE WILL reimburse or refund to Marvin Hill dues un- lawfully collected from him, with interest, for the time following his valid resignation from union membership and revocation of dues-checkoff assignments. i NATIONAL ASSOCIATION OF LETTER CARRIERS