Newport News Shipbuilding and Dry Dock Co.

NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY Newport News Shipbuilding and Dry Dock Compa- ny' and United Steelworkers of America and Peninsula Shipbuilders' Association, Party to the Contract Peninsula Shipbuilders' Association 2 and United Steelworkers of America and Newport News Shipbuilding and Dry Dock Company, Party to the Contract. Case 5-CA-10070 and 5-CB- 2894 December 12, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 10, 1980, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, the General Counsel, Respondent Employer, and Respondent Union filed exceptions and supporting briefs. 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, find- ings,3 and conclusions 4 of the Administrative Law Judge, but not to adopt his recommended Order.5 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that: A. Respondent Newport News Shipbuilding and Dry Dock Company, Newport News, Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: Herein called Respondent Employer. 2 Herein called Respondent Union. ' In fn. 37 of his Decision, the Administrative Law Judge recommend- ed dismissal for lack of evidence of the allegation that Respondent Em- ployer's unfair labor practices caused and/or prolonged a strike which began on January 31, 1979. The record reveals, however, that during the hearing in this case the Administrative Law Judge approved the General Counsel's motion to withdraw that allegation of the complaint against Respondent Employer. In fn. 14 of his Decision, the Administrative Law Judge incorrectly stated that the instant complaints listed 214, rather than 213, employees. In fn. 39 of his Decision, the Administrative Law Judge incorrectly stated that Appendix D to his Decision listed 63. rather than 66. employees. We therefore correct these inadvertent errors. 4 In adopting the Administrative Law Judge's conclusion that Re- spondents violated the Act herein, we find it unnecessary to rely upon previous cases decided by the Board where Respondents were found to have committed unfair labor practices or upon the Administrative Law Judge's characterizations of Respondents' conduct involved therein. 5 We have modified the Administrative Law Judge's recommended Order to more accurately follow and remedy the actual violations found and to add a provision requiring maintenance of any records necessary to determine the amounts of money due to employees. We have also modi- fied the Administrative Law Judge's notices to conform to our Order 253 NLRB No. 96 (a) Discouraging membership in the United Steelworkers of America, or any other labor orga- nization, and encouraging membership in the Pen- insula Shipbuilders' Association, or any other labor organization, by: (1) Continuing to deduct union dues from the wages of employees and transmitting those dues to the Peninsula Shipbuilders' Association, or any other labor organization, after employees have ef- fectively revoked their dues-checkoff authoriza- tions. (2) Maintaining or enforcing a provision in a col- lective-bargaining agreement which requires that employees use a particular form in order to revoke their dues-checkoff authorizations, where this re- striction on revocation was not set forth in the dues-checkoff authorizations signed by the employ- ees. (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 designed to effectuate the purposes of the Act: (a) Jointly and severally with the Peninsula Shi- builders' Association reimburse the employees named in Appendix C to the Administrative Law Judge's Decision for any union dues deducted from their wages after they effectively revoked their dues-checkoff authorizations, with interest, in the manner set forth in "The Remedy" section of the Administrative Law Judge's Decision. [Appendix C omitted from publication.] (b) Jointly and severally with the Peninsula Ship- builders' Association reimburse those employees named in Appendix D to the Administrative Law Judge's Decision who are determined to have ex- ecuted effective revocations of their dues-checkoff authorizations for any union dues unlawfully de- ducted from their wages after they executed such revocations, with interest, in the manner set forth in "The Remedy" section of the Administrative Law Judge's Decision. [Appendix D omitted from publication.] (c) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, dues-checkoff authoriza- tions, records of remittances to the Peninsula Ship- builders' Association, and all other records and re- ports necessary to analyze the amounts due under the terms of this Order. (d) Post at its place of business in Newport News, Virginia, copies of the attached notice 721 DECISIONS OF NATIONAL LABOR RELATIONS BOARD marked "Appendix A." 6 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by its authorized representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. B. Respondent Peninsula Shipbuilders' Associ- ation, Newport News, Virginia, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Newport News Shipbuilding and Dry Dock Company to deduct union dues from the wages of employees after the employees have effectively revoked their dues-checkoff authorizations, or retaining any such unlawfully deducted dues transmitted to it. (b) Maintaining or enforcing a provision in a col- lective-bargaining agreement which requires that employees use a particular form in order to revoke their dues-checkoff authorizations or requiring em- ployees to appear in person at the union hall in order to revoke their dues-checkoff authorizations, where these restrictions on revocation were not set forth in the dues-checkoff authorizations signed by the employees. (c) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the purposes of the Act: (a) Jointly and severally with Newport News Shipbuilding and Dry Dock Company reimburse the employees named in Appendix C to the Admin- istrative Law Judge's Decision for any union dues deducted from their wages after they effectively revoked their dues-checkoff authorizations, with in- terest, in the manner set forth in "The Remedy" section of the Administrative Law Judge's Deci- sion. (b) Jointly and severally with Newport News Shipbuilding and Dry Dock Company reimburse those employees named in Appendix D to the Ad- ministrative Law Judge's Decision who are deter- mined to have executed effective revocations of 6 In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " their dues-checkoff authorizations for any union dues unlawfully deducted from their wages after they executed such revocations, with interest, in the manner set forth in "The Remedy" section of the Administrative Law Judge's Decision. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all dues-checkoff authorizations, dues payment records, records of dues remittances from Newport News Shipbuilding and Dry Dock Company, and all other reports and records necessary to analyze the amount due under the terms of this Order. (d) Post at its offices and meeting halls copies of the attached notice marked "Appendix B."7 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by its authorized officer or representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (e) Sign and return to the Regional Director for Region 5 sufficient copies of the attached notice marked "Appendix B" for posting by Newport News Shipbuilding and Dry Dock Company, if willing, in conspicuous places, including all places where notices to employees are customarily posted. (f) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. 7 See fn. 6, upra. APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT continue to deduct union dues from the wages of our employees and transmit those dues to the Peninsula Shipbuild- ers' Association, or any other labor organiza- tion, after employees have effectively revoked their dues-checkoff authorizations. WE WILL NOT maintain or enforce a provi- sion in a collective-bargaining agreement 722 NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY which requires that our employees use a par- ticular form in order to revoke their dues- checkoff authorizations, where this restriction on revocation was not set forth in the dues- checkoff authorizations signed by our employ- ees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL jointly and severally with Penin- sula Shipbuilders' Association reimburse the employees listed on the attached Appendix C for any union dues deducted from their wages after they effectively revoked their dues- checkoff authorizations, with interest. WE WILL jointly and severally with the Peninsula Shipbuilders' Association reimburse those employees listed on the attached Appen- dix D who are determined to have executed effective revocations of their dues-checkoff au- thorizations for any union dues unlawfully de- ducted from their wages after they executed such revocations, with interest. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY APPENDIX B NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT cause or attempt to cause Newport News Shipbuilding and Dry Dock Company to deduct union dues from the wages of employees after the employees have effectively revoked their dues-checkoff au- thorizations, and WE WILL NOT retain any such unlawfully deducted dues transmitted to us. WE WILL NOT maintain or enforce a provi- sion in a collective-bargaining agreement which requires that employees use a particular form in order to revoke their dues-checkoff authorizations, and WE WILL NOT require employees to appear in person at our union hall in order to revoke their dues-checkoff au- thorizations, where these restrictions on revo- cation were not set forth in the dues-checkoff authorizations signed by the employees. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL jointly and severally with New- port News Shipbuilding and Dry Dock Com- pany reimburse the employees listed on the at- tached Appendix C for any union dues deduct- ed from their wages after they effectively re- voked their dues-checkoff authorizations, with interest. WE WILL jointly and severally with New- port News Shipbuilding and Dry Dock Com- pany reimburse those employees listed on the attached Appendix D who are determined to have executed effective revocations of their dues-checkoff authorizations for any union dues unlawfully deducted from their wages after they executed such revocations, with in- terest. PENINSUI.A SHIPBUILDERS' ASSOCI- ATION DECISION STATEMENT OF THE CASE JOEl A. HARMATZ, Administrative Law Judge: This consolidated proceeding was held before me in Hamp- ton, Virginia, on December 17, 18, and 19, 1979, upon original unfair labor practice charges filed on October 12, 1978, and a complaint issued in Case 5-CA-10070 on January 12, 1979, which, as amended, alleged that Re- spondent Employer Newport News Shipbuilding and Dry Dock Company, herein referred to as the Shipyard, violated Section 8(a)(l) and (3) of the National Labor Relations Act, as amended, by continuing to check off dues from the wages of certain employees and remitting same to Respondent Union, Peninsula Shipbuilder's As- sociation herein called PSA, following revocation by said employees of dues-checkoff authorizations, and by maintaining and enforcing a provision of the collective- bargaining agreement between the Shipyard and PSA pertaining to the revocation of checkoff authorizations. Said complaint further alleged that a strike which com- menced on January 31, 1979, was caused and prolonged by the alleged unfair labor practices described above and therefore was an unfair labor practice strike. Thereafter, on July 2, 1979, a complaint issued in Case 5-CB-2894, which, as amended, alleged that PSA violated Section 8(b)(l)(A) and (2) of the Act by statements made to em- ployees that they would have to come to the union of- fices in order to resign from membership in PSA, by tell- ing employees that they would have to sign a form sup- plied by PSA in order to resign from PSA membership, by accepting and retaining dues remitted by the Shipyard Company on behalf of employees who had informed PSA of revocation of their dues-checkoff authorizations, and by maintaining and enforcing a provision of its col- 723 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lective-bargaining agreement with the Shipyard pertain- ing to the revocation of dues-checkoff authorizations. In their respective duly filed answers, the Shipyard and PSA deny that any unfair labor practices were commit- ted. Following the close of the hearing, briefs were filed on behalf of the General Counsel and PSA.' Upon the entire record in this proceeding, including my opportunity to personally and directly observe the demeanor of the witnesses while testifying, and after consideration of the post-hearing briefs, I make the fol- lowing: FINDINGS OF FACT I. JURISDICTION Respondent Newport News Shipbuilding and Dry Dock Company, a Virginia corporation, is engaged from its facilities in Newport News, Virginia, in the construc- tion and repair of oceangoing vessels. During the 12- month period preceding issuance of the complaint, a rep- resentative period, said Respondent purchased and re- ceived in interstate commerce materials and supplies valued in excess of $50,000 from points located outside the Commonwealth of Virginia. The complaints allege, the answers admit, and I find that at all times material herein said Respondent is, and has been, an employer as defined in Section 2(2) of the Act, engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The complaints allege, the answers admit, and I find that United Steelworkers of America, herein called USW, and PSA are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. 2 III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues Did the Shipyard violate Section 8(a)(3) and (1) of the Act and the PSA violate Section 8(b)(l)(A) and (2) by maintaining and enforcing provisions of their collective- bargaining agreement compelling employees to effect revocation of dues-checkoff authorizations on forms fur- nished by PSA? 2. If not, in the circumstances did the Shipyard violate Section 8(a)(3) and (1) of the Act by refusing to honor revocation of dues-checkoff authorizations executed by employees and by continuing to deduct dues from their paychecks and remitting them to PSA, or was this action Direct appearance on behalf of Respondent Shipyard in the instant proceeding was limited to the first day of the hearing and confined to the entry of certain stipulations and a statement of position. In a prior pro- ceeding under Section 301 of the Act a United States District Court held that the Shipyard was "entitled under the terms of the agreement to be defended, and held harmless by PSA against any claim or liability arising out of its action in deducting from the pay of such 158 members said dues and paying same over to the PSA." Based thereon, the Shipyard made no further appearance at the hearing and filed no post-hearing brief. 2 The General Counsel's moves to correct the official stenographic transcript is hereby granted. lawful because these revocations were not on forms sup- plied by PSA and hence not in the form required by the existing collective-bargaining agreement. 3. Did a judgment of a United States District Court pursuant to Section 301 of the Act upholding the legiti- macy and enforceability of said provision in the collec- tive-bargaining agreement constitute res judicata and hence a bar to the instant proceeding? B. Background The instant cause is devoid of major factual conflict. It emerges from an effort on the part of employees who were members of an incumbent bargaining representa- tive, PSA, to cancel financial support of that labor orga- nization following a National Labor Relations Board election in which a rival union, USW, was designated as statutory representative on the basis of a majority of the votes cast. Historically, PSA had been the bargaining representa- tive of some 19,000 production and maintenance workers at the shipyard. During the period relevant to this pro- ceeding, PSA and the Shipyard were parties to a collec- tive-bargaining agreement effective from February 17, 1975, and subject to expiration on June 30, 1978. As Vir- ginia is a "right-to-work state" that contract did not in- clude provisions for compulsory union membership. During the term of that agreement, USW opened an organization campaign among the production and main- tenance employees seeking to replace PSA as their repre- sentative. As shall be seen infra, that campaign was marred by unlawful conduct on the part of PSA and the Shipyard, which, if failing to rise to the level of conspir- acy, reflected their shared animus toward employees who would abet the USW. Nonetheless, on January 31, 1978, an election was conducted with the USW receiving 9,093 votes to the PSA's 7,548. Objections to the election were filed, but were overruled by the National Labor Relations Board, which certified the USW as exclusive representative on October 27, 1978.3 In the interim, namely, during February and March 1978, a number of PSA members who had voluntarily authorized the Shipyard to deduct dues from their wages and to remit them to that Union informed the Shipyard that they wished to revoke their dues-checkoff authoriza- tions and to curtail the Shipyard's remittance of dues to PSA. Their intention in this respect was manifested in writing on forms addressed to both PSA and the ship- yard providing as follows: This is to advise you that I am resigning my mem- bership in the Peninsula Shipbu,.ders' Association effective immediately and this is to advise Newport News Shipbuilding and Dry Dock Company to dis- continue deducting dues from my wages on behalf 3 239 NLRB No. 82. PSA and the Shipyard contested the certification in the United States Court of Appeals for the Fourth Circuit where cer- tain issues bearing upon the validity thereof were remanded to the Board for further consideration. (594 F2d 8 (1979).) Thereafter, the Board reaf- firmed its previous Order, upholding the Certification of Representative. (243 NLRB 99 (1979).) On October 11, 1979, the United States Court of Appeals for the Fourth Circuit enforced said Order requiring the Ship- yard to recognize and bargain with the USW. (608 F.2d 108) 724 NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY of the Peninsula Shipbuilders' Association as of this date: I have enclosed my membership card for cancella- tion. Name Address Soc. Sec. No. Upon receipt of the foregoing, the Shipyard notified PSA that it was its intention to comply. However, sec- tion 23.2 of its collective-bargaining agreement with PSA states that "revocation of such authorization shall be by use of the form furnished by the Association (PSA)." 4 relying thereon, PSA informed the Shipyard that, since the revocation notices were not on forms provided by PSA, if the Shipyard honored them, PSA would sue the Shipyard for breach of the collective-bargaining agree- ment. The Shipyard complied with PSA's stated position and thereafter continued to deduct dues from the pay- checks of the employees involved and to remit them to PSA. Having advanced its view that the revocations were a nullity, PSA informed all employees by mail who had at- tempted to revoke as follows: In order to resign from the Peninsula Shipbuilders' Association, you will have to come by the office, 4306 Huntington Avenue, Newport News, Virginia, and sign the only acceptable form required by the contract and the Finance Division of Newport News Shipbuilding. The office is open Monday thru Friday from 8:00 a.m. to 4:30 p.m. as we have been for forty years. Yours very truly, R. M. Bryant, Sr. Business Manager 5 PSA amplified its position in a document entitled "Report to the Membership," dated February 21, 1978, which included the following: Q. Can a PSA member stop his or her dues by sending a registered letter? A. No. You must sign an authorized resignation form at the PSA office, 4306 Huntington Ave.6 The initial attempt to revoke by some 213 employees was ignored by PSA and the Shipyard for some 7-8 The text of sec. 23.2 is as follows: Revocation of Check Off Authorization. (a) Any such dues check off authorization shall not be for a period of time greater than one year or the termination date of this Agree- ment, whichever is the sooner. A revocation of such authorization shall be by use of the form furnished by the Association (in dupli- cate) and shall be delivered either to the Association or to the head of the Company's Personnel and Industrial Relations Division. If such revocation is to be effective upon the termination date of this Agreement, it shall be delivered within the last fifteen (15) days of the term of this Agreement (b) The above-mentioned authorization, the receipt and notice of cancellation shall be in form and substance satisfactory to the Com- pany. See G.C. Exh. 12. 6G C. Exhibit 13. months. However, on October 18, 1978, the USW, which had actually assisted the employees involved by drafting the dues-checkoff revocation forms used by them, filed unfair labor practice charges against both the Shipyard and the PSA. Those charges specifically cited both with unfair labor practices based upon the contin- ued checkoff and remittance of dues to PSA in the face of the revocations. Subsequently, on October 28, 1978, when the National Labor Relations Board had certified the USW, the Shipyard curtailed its remittal of dues to PSA. Having aborted checkoff as of that date, on November 16, 1978, a month after USW filed its charges, the Ship- yard instituted a lawsuit in the United States District Court for the Eastern District of Virginia pursuant to Section 301 of the Act, naming PSA and 158 individual employees as defendants. In that proceeding, the Ship- yard sought declaratory "relief' as to its rights and obli- gations with respect to the obstensibly conflicting posi- tion taken by the 158 employees and the PSA concern- ing the checkoff of union dues in the light of section 23.2 of the subsisting collective-bargaining agreement. That proceeding came on before the Honorable Richard Kellam, United States District Court judge. Because the 150 named employees-all of whom held a beneficial in- terest in the pending unfair labor practice charges-failed to plead or otherwise defend," they were held by the court to be in default." 7 USW sought to intervene in that proceeding, but said request was denied. Thereafter, the NLRB sought to intervene solely to perfect a motion that the proceeding be stayed until exhaustion of Nation- al Labor Relations Board processes. s8 This too was denied. Prior to final disposition of the Section 301 action, a complaint was issued on the unfair labor practice charges on January 12, 1979, in Case 5-CA-10070 with respect to the Shipyard, and on July 2, 1979, a complaint issued on the charge against PSA in Case 5-CB-2894. Thereafter, following a hearing held on September 18, 1979, the court on October 23, 1979, entered a judgment in the 301 action which recited in material part as fol- lows: It is Ordered and Adjudged that the motion of NLRB to intervene and to stay these proceedings is DENIED; that Article XXIII of the Collective Bar- gaining Agreement is valid and binding in this case, and the 158 individual defendants were not excused from complying therewith, and the continued de- duction of dues and payment over to PSA was proper; that plaintiff is indemnified and held harm- less by PSA against any claim or liability arising out of its action in deducting from the pay of such 158 members said dues and paying same over to PSA; and costs in accordance with the Court's Opinion. SeeGC Exh. 6. 8 In connection with the National Labor Relations Board's effort to intervene, the Court was advised that the Board "could not take a posi- tion on the merits, but only sought to stay the proceedings" Judge Kellam, while ultimately denying intervention, afforded the Board "the opportunity to present evidence, cross examine witnesses and file a brief." 725 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Controlling Authority Under the National Labor Relations Act Section 8(b)(l)(A) of the National Labor Relations Act specifically preserves "the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein." In addition, a provi- so to Section 8(a)(3) of the Act, under stated conditions, authorizes union-security agreements between employers and labor organizations" to require as a condition of em- ployment membership therein." On the other hand, under the statute the manner in which an employee ful- fills financial obligations to a labor organization is left to his or her personal choice. Pursuant to the statutory scheme, a dues-checkoff agreement between an employer and labor organization is authorized, but in its implemen- tation must comply with certain statutory conditions. Foremost is the safeguard that the employee's participa- tion be purely voluntary and free from compulsion. The central reference to congressional design in this area is found in Section 302 of the Act, the premise of which is as follows: It shall be unlawful for any employer or association of employers or any person who acts as a labor re- lations expert, advisor, or consultant to an employer or who acts in the interest of an employer to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or thing of value .... to any labor or- ganization, or any officer or employee thereof This broadly stated ban would include the checkoff of union dues. However, an exemption therefrom is set forth in Section 302(c)(4) which provides, in material part, as follows: The provisions of this section shall not be applicable .. . with respect to money deducted from the wages of employees in payment of membership dues in a labor organization: Provided, That the employer has received from each employee, on whose ac- count such deductions are made, a written assign- ment 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 ... Congress specifically conferred jurisdiction on the Federal courts to enforce Section 302 through criminal sanctions. However, the options afforded employees under that provision with respect to checkoff also are protected under Section 8 of the National Labor Rela- tions Act. Thus, the Board, with court approval, has held "that the dues checkoff arrangement must be with the employee's consent, and that an employer who checks off union dues from an employee's pay and remits the proceeds to the union without the employee's written authorization violates Section 8(a)(2) and () of the Act." N.L.R.B. v. Brotherhood of Railway, Airline and Steam- ship Clerks, et al. [Yellow Cab Company], 498 F.2d 1105, 1109 (1974). And further, "if a union causes the employ- er to deduct and remit dues after a valid revocation by the employee of his dues authorization, it violates Section 8(b)(1)(A) and (2)." N.L.R.B. v. Atlanta Printing Special- ties, 523 F.2d 783, 784-785 (5th Cir. 1975). Such viola- tions also inure where employers continue to deduct dues from the wages of an employee who has revoked checkoff. See Merchants Fast Motor Lines, 171 NLRB 1444 (1968); Bedfbrd Can Manufacturing Corp., 162 NLRB 1428 (1967); Penn Cork & Closures, Inc., 156 NLRB 411 (1965), enfd. 376 F.2d 52 (2d Cir. 1967). At this juncture, it is noted that the record in this pro- ceeding establishes beyond contravention that certain of the 213 employees named in the complaint, who had pre- viously executed valid dues-checkoff authorizations, at- tempted to revoke such authorizations in February and March 1978. They acted by executing and forwarding documents which contained clear and unambiguous dec- larations of their intent in this regard to both the Ship- yard and PSA. Notwithstanding the action of said em- ployees, the Shipyard continued thereafter to deduct PSA dues from the wages of the employees involved and to remit same to PSA on the latter's threat to sue if the revocations were honored. Based upon the foregoing the General Counsel has es- tablished prima facie that the Shipyard and PSA violated the Act as alleged in the complaints. At least with re- spect to this group, the sole defense available to Re- spondents rests on their claim that the revocations failed to conform with section 23.2 of the governing collective- bargaining agreement, and hence were a nullity. The findings in that connection by the United States District Court are urged by the PSA as a bar to Board resolution of the contract issue via the "Motion to Dismiss" dis- cussed immediately below. D. he Motion To Dismiss The intervening judgment of the district court raises a significant procedural question under the national labor policy. Relying upon that adjudication, PSA, at the hear- ing and again in its post-hearing brief, moved for dismiss- al of this consolidated proceeding, arguing that "the facts found by the court are resjudicata, and that the principal of resjudicata and collateral estoppel preclude the Board from proceeding further with these cases." The doctrine of res judicata evolved from a desire to bring an end to litigation by avoiding a duplicity of law suits between the same parties with respect to the same issues. Accordingly, a prior proceeding will constitute a bar where the pending cause is possessed of all of the following elements: () the parties are similar to those in- volved in the prior case; (2) the cause of action is similar; (3) the earlier proceeding culminated in a final judgment by a court of competent jurisdiction; and (4) said judg- ment was on the merits.9 By interposing the 301 action' ° as a bar, PSA has "thumbed" an area of conflict under Federal labor policy 9 See, eg., Electric Expert, Inc., et al. v Levine, 554 F 2d 1227 (2d. Cir. 1977). 10 In material part, Sec. 301(a) of the Labor Management Relations Act, 29 U SC §185(a), creates Federal jurisdiction for "suits for viola- lion of contracts between an employer and labor organization . or be- tween labor organizations" 726 NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY which has yet to be clarified. Thus, the original unfair labor practice charges were filed on October 18, 1978, about a month before the Shipyard instituted said action in the United States District Court. Those charges recit- ed facts constituting prima facie violations of Section 8 of the Act. For at the time it was established Board policy "that the deduction of dues from an employee's pay after the employee has validly revoked the checkoff authoriza- tion constitutes a violation of. . . the Act." See, e.g., In- dustrial Towel and Uniform Service, a Division of Cavalier Industries, Inc., 195 NLRB 1121 (1972); Merchants Fast Motor Lines, 171 NLRB 1444; Bedford Can Manufactur- ing Corp., 162 NLRB 1428; Penn Cork and Closures, Inc., 156 NLRB 411, enfd. 376 F.2d 52. Indeed, in a 1975 de- cision by the United States Court of Appeals for the Fifth Circuit, it was stated as follows: Section 8(b)(l)(A) and (2) of the National Labor Relations Act provides that it is an unfair labor practice for a union to coerce employees in the ex- ercise of their Section 7 right to refrain from union membership, or to cause the company to discrimi- nate against employees in regard to "any term or condition of employment" in order to encourage or discourage union membership. If a union causes the employer to deduct and remit dues after valid revo- cation by the employee of his dues authorization, it violates Sections 8(b)(1)(A) and (2). I Interestingly enough the factual assertions contained in the original unfair labor practice charges were substanti- ated in toto by the pleadings filed in the Section 301 action. Thus, the Shipyard's complaint alleged that "[t]he 158 Defendants [individual employees] sent letters of rev- ocation of dues checkoff to Plaintiff," an averment ad- mitted in the answer filed by PSA.' 2 Said complaint fur- ther alleged that "Plaintiff [the Shipyard] did not discon- tinue dues checkoff upon receipt of the letters of revoca- tion . . . from the defendants [the individual employ- ees]," a fact also admitted in PSA's answer. In its "Prayer for Relief," the Shipyard requested of the dis- trict court, inter alia, the following: Declaring that Article 23 of the collective bargain- ing agreement is valid and binding and that a letter of revocation of dues checkoff must meet the ex- press terms of Article 23. Thus, from the outset of the Section 301 action it should have been evident that the overarching issue in the litigation in either the judicial or administrative forumt 3 would turn on the propriety of the Shipyard and PSA's defense predicated on section 23.2 of the then-subsisting collective-bargaining agreement. tl See NL.R.B. v Atlanta Printing Specialties, 523 F 2d 7X.13 i2 See G.C. Exh. 7, p. 6 and G.C Exh 8. ' To clarify the import of the contractual defense, it is noted that, if the PSA's position with respect to sec. 23.2 were sustained dismissal of both unfair labor practices charges would be required in their entirety On the other hand. if the contractual defense is to be rejected, issues would remain, but would be confined to individual employees and ques- tions as to whether, apart from any contractual limitations, they effective- ly manifested an intent to revoke For example, the section 301 complaint also challenged revocations submitted by 44 defendants which did not contain signatures, and which were challenged on that basis by PSA In support of the claim of resjudicata, PSA in its brief to the Administrative Law Judge recited as follows: The 158 named defendants have had their opportu- nity to present their grievances and charges against the PSA and the Company in the District Court. By failing to appear they have forfeited the right to bring those charges now brought by the NLRB in their behalf. The District Court specifically ruled that "the 158 individual defendants were not ex- cused from complying" with Article 23 of the col- lective-bargaining agreement, which required the use of PSA-supplied deduction revocation forms.'4 The claim that the adjudication before Judge Kellam is binding upon the National Labor Relations Board is con- tested by counsel for the General Counsel on a number of grounds. For the reasons set forth below, that position is sustained. At the threshold is the fact that the issue of contract interpretation was resolved in the United States District Court without the procedural safeguards contemplated by the unfair labor practice provisions of the National Labor Relations Act. Though unfair labor practice charges were then pending, neither the National Labor Relations Board nor the Charging Party involved therein were parties. The 158 employees named in the Section 301 suit as defendants whose beneficial interest in the dis- pute had theretofore been asserted in the unfair labor practice charges became obliged to defend that suit on pain of default and under threat of an assessment of court costs. The initial question presented is whether the court's in- tervention resulted in a conclusive determination fore- closing administrative remedy as a matter of law. The answer lies in the development of that aspect of the na- tional labor policy which seeks to reconcile potential conflict between the National Labor Relations Board and the judiciary. Section 10(a) of the National Labor Rela- tions Act is an appropriate opening reference. It provides as follows: The Board is empowered . . . to prevent any person from engaging in any unfair labor practice (listed in section 8) affecting commerce. This power shall not be affected by any other means of adjust- ment or prevention that has been or may be estab- lished by agreement, law, or otherwise. 5 Consistent with Section 10(a), the Supreme Court, prior to consideration of the degree to which Section 301 affected the overall regulatory scheme, preserved the 14 The instanlt complaint names 214 individual employees Including 56 not named as defendants in the District Court proceeding. One of the em- ployees. C Vaughn, was deleted from the complaint by the General Counsel because he had not authorized checkoff and dues had never been forwarded to PSA in his behalf The group of 56 consisted of emplo)ees who, after executing revocaion forms which did not conform to the col- lective-bargaining agreement. later did so Nonetheless. the Shipyard did not honor their initial revocations. It would seem that with respect to them the proceeding under Sec 301 n which they were not named as parties and had no cause to appear. could not be construed as re judicata or binding under any concept I See .%L. RB. v Acme Industrial Co , 385 US 432. 435-437 (1967) 727 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusive, primary jurisdiction of the National Labor Re- lations Board under the doctrine of preemption. Thus, in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), the Supreme Court nullified jurisdiction of state and Federal courts to regulate conduct "arguably subject to Section 7 or 8 of the Act." This holding was consistent with a prior assessment of the intent of Con- gress underlying creation of the Board. Thus, in Joseph Garner and A. Joseph Garner, v. Teamsters, Chauffeurs and Helpers Local Union No. 776 (A.F.L.), 346 U.S. 485, 490-491 (1953), the Supreme Court stated as follows: Congress did not merely lay down a substantive rule of law to be enforced by any tribunal compe- tent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tri- bunal and prescribed a particular procedure for in- vestigation, complaint and notice, and hearing and decision, including judicial relief pending a final ad- ministrative order. Congress evidently considered that centralized administration of specifically de- signed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies.... A multitude of tribunals and diversity of procedures are quite as apt to pro- duce incompatible or conflicting adjudications as are different rules of substantive law. The same rea- soning which prohibits federal courts from interven- ing in such cases, except by way of review or on application of the Federal Board, precludes State courts from doing so. Subsequently in Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America, et al. v. Lockridge, 403 U.S. 274, 288 (1971), the Supreme Court again stated as follows: The rationale for preemption . . . rests in large measure upon our determination that when it set down a federal labor policy Congress plainly meant to do more than simply to alter the then-prevailing substantive law. It sought as well to restructure fun- damentally the processes for effectuating that policy, deliberately placing the responsibility for ap- plying and developing this comprehensive legal system in the hands of an expert administrative body rather than the federalized judicial system. Notwithstanding the above, under controlling authori- ty the intervention of the district court on the basis of jurisdiction conferred by Section 30116 in connection with the instant unfair labor practice charges, was inof- L' In material part, Sec. 301(a) of the Labor Management Relations Act, 29 U.S.C §185(a), states as follows: Suits for violation of contracts between an employer and a labor or- ganization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any District court of the United States having ju- risdiction over the parties, without respect to the amount in contro- versy or without regard to the citizenship of the parties. fensive to the established view of preemption. For that concept has been deemed inapplicable to Section 301 suits with the National Labor Relations Board and the Federal courts having concurrent authority with respect to disputes arising under collective-bargaining agree- ments even where conduct arguably protected or prohib- ited by the Act may be involved. In reaffirming this po- sition in Smith v. Evening News Association, 371 U.S. 195 (1962)'7 The Supreme Court acknowledged the possibil- ity of substantive conflicts arising from dual jurisdiction, but with respect to such possibility simply stated, "[W]e shall face those cases when they arise." 18 Historically, such conflicts have been avoided by discretionary action on the part of the judiciary whereby lawsuits are stayed pending disposition by the National Labor Relations Board of the unfair labor practices. However, the district court elected to proceed with the matter at hand, there- by raising the question as to whether its decision should be deemed binding upon the interest asserted by the USW under Section 8 of the Act in this consolidated proceeding. In my opinion to answer this question in the affirmative is to sanction a major frustration of the spe- cific congressional scheme for redress of violations of Section 8 of the Act. Thus, the definition of the means by which unfair labor practices are to be determined and remedied was relieved of significant procedural strictures and accompanied by specific substantive standards with the Board enpowered to proceed on behalf of employee interests without need for the latter to draw on their own personal resources to perfect their statutory rights. In contrast with the specific rights and obligations en- trusted to the National Labor Relations Board, Section 301 of the Act entailed a delegation of jurisdiction upon the Federal courts without an accompanying express substantive declaration.'9 To account for the missing in- gredient, the Supreme Court stated as follows: "The sub- stantive law to apply in suits under Section 301(a) is fed- eral law which the courts must fashion from the policy of our National Labor Laws." See Textile Workers Union 17 See also Local 174. Teamsters. Chrauffeurs. Warehousemen and Help- ers of America v. Lucas Flour Co., 369 U.S. 95 (1962), Dowd Box Co., Inc. v Courtney, 368 U.S. 502 (1962); Atkinson v. Sinclair Refining Co., 370 U.S. 238 (1962) 18 371 U.S. at 199. In appreciating the proper role of Sec. 301 in the overall formulation of the national labor policy, it ought not be over- looked that the development of concurrent jurisdiction in the Federal courts to enforce collective-bargaining agreements in such cases as Smith v. Evening News, supra, was not without the Board's blessing As pointed out by the Supreme Court in that case, it was the view of the National labor Relations Board that "ousting the courts of jurisdiction under Sec- lion 301 . would not only fail to promote, but would actually ob- struct, the purposes of the Labor Management Relations Act." Obvious- ly, to apply preemption to disputes concerning contract interpretation and enforcement would require exhaustion of all administrative remedies before simple relief in the form of specific performance could be obtained in the courts, redress which is not necessarily within the National Labor Relations Board's remedial arsenal. Substantial delays in the realization of ordinary contract benefits and enforcement of arbitration agreements could be expected under such an approach a' The absence of a specific definition of substantive law applicable under Section 301 was viewed initially as raising serious constitutional question as to whether Federal jurisdiction could rightfully attach under such a delegation See, e.g. Asociation of Westinghouse Salaried Employ- ees v. Westinghouse Eleciric Corp., 346 U.S. 437 (1955) 728 NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY of America v. Lincoln Mills of Alabama, 353 U.S. 448, 456 (1957). With all that has been said by the Supreme Court over the years with respect to special administrative compe- tence, it seems only logical that the specific substantive law, remedies, and procedures entrusted to the National Labor Relations Board ought to take precedence over the undefined interpretative process under which the Federal courts function pursuant to jurisdiction con- ferred by Section 301. Moreover, persuasiveness of this view is enforced when one considers the degree to which public rights were considered in the court pro- ceeding. Both the National Labor Relations Board and the USW were barred from intervention therein. On the face of the pleadings, it was apparent that PSA and the Shipyard were allied in interest with respect to the issue of contract interpretation. In that posture, the burden of opposing the collective view of PSA and the Shipyard was thrust upon 158 employees. They made no formal appearance nor did they enter a plea, and 156 of them were held in default. 20 This was hardly surprising when one considers that, while the pecuniary interest of none exceeded $88, effective participation would have re- quired retention of counsel and a loss of worktime. Without questioning the bona fides of the intentions behind the 301 suit, the fact remains that said proceeding entailed a short circuiting of the remedial procedures which Congress had enacted for the protection of em- ployee interests. The complaint filed in that proceeding stated as follows: "The position on the 156 defendants is that any letter requesting revocation of dues checkoff is valid and that such a letter need not be on a form fur- nished by the PSA." (See G.C. Exh. 7) That position was fundamental to and the predicate for the unfair labor practice charges which had previously been filed before the National Labor Relations Board. Yet, the 158 indi- vidual employees were summoned to court as defendants in a lawsuit initiated by their Employer after the remedi- al process of the National Labor Relations Board had been invoked, a result which might have discouraged their cooperation with respect to the National Labor Re- lations Board charges then under investigation. 2t In any event, it is not entirely clear that the court's de- cision in any way interfered with the pending unfair labor practice charges. The offiqial transcipt of that pro- ceeding reflects the court's sensitivity to that possibiliy and a desire to avoid it. 2 2 The Shipyard plainly repre- sented that there would be no conflict if Judge Kellam asserted jurisdiction and, while PSA was ambivalent, 10 Of the 158 individual employees named as defendants in the district court action 2 appeared as witnesses. 21 The spectre of collusion by PSA and the Shipyard to the detriment of the employees was suggested at least in one respect in the Section 301 action. Thus, an "Order on Pre-Trial Conference" was signed by Judge Kellam on August 31 1979. (See GC. Exh 9.) In that document PSA and the Shipyard entered a number of stipulations, including the follow- ing: That none of the 158 individuals by their actions and/or their inten- tions intended to revoke their dues deduction authorizations. While that stipulation would lessen any sympathetic aura surrounding the interest of the employees, its foundation in fact is undisclosed. and the accuracy thereof was refuted by overwhelming testimony by individual employees on the instant record 22 See G.C Exh 5 certain remarks made on behalf of the latter were sub- stantially similar. Further, the formal opinion issued by the court does not disclose a clear desire on its part to dispose of the unfair labor practice issue in resolving the contractual question. For the only reference therein to a possible violation of the National Labor Relations Act appears in the discussion of Felter v. Southern Pac.fic Co., et al., 359 U.S. 326 (1959), 23 in which the Supreme Court held that a contractual checkoff requirement simi- lar to that set forth in section 23.2 was unlawful under the Railway Labor Act. 24 From my reading of the court's decision no intention was expressed to resolve the question as to the validity of the contract under Section 302(c)(4) pursuant to the Supreme Court's holding in Felter, supra. Instead, it simply pointed out that said issue had not been raised by any party having standing to do so in the Section 301 proceeding. Indeed, the statement in the opinion to the effect that, "if any employee was here asserting such a position, the issue might be differ- ent," plainly suggests that the court had no intention to, and did not, determine the lawfulness of section 23.2 under Section 8 of the Act. In sum, I find that, consistent with the arguments ad- vanced by PSA and the Shipyard in the Section 301 action, the issue resolved in that proceediing was one of contract interpretation binding solely with respect to contractual remedies available to the parties to the agree- ment and the beneficiaries thereof. The court was not re- quested nor does it appear that it purported to decide the question as to whether section 23.2 of the PSA-Shipyard agreement on its face, or the practice thereunder, was an unfair labor practice within the meaning of Section 8 of the National Labor Relations Act. As such, that determi- nation, although perhaps res judicata to a Section 301 action by any employee named as a defendant in that cause, is entitled to no weight in this unfair labor prac- tice proceeding involving charges brought by the USW and prosecuted by the General Counsel of the National Labor Relations Board, neither of whom were parties in the Section 301 action. Simply stated, the cause of action presently in issue arises in a procedural atmosphere dis- tinct from that envisioned by Section 301 and is to be re- solved within the realm of express congressional stand- ards which were not invoked in the proceeding before the district court. Accordingly, PSA's motion to dismiss the complaints based on res judicata is denied as lacking in merit. E. Concluding Findings With Respect to the Defense Amendments to the complaints in this proceeding spe- cifically place under interdict section 23.2 of the collec- tive-bargaining agreement. Thus, said provision is chal- lenged on its face as having been unlawfully maintained and enforced. 23 See G.C Exh. 6. 24 The above case was cited by the National Labor Relations Board in its brief to Judge Kellam in support of its motion for leave to intervene and to stay the Sec. 301 proceeding Said authority was offered in sup- port of the Board's contention that the district court's ajudication of the issue could "impair" the Board's responsibility for preventing the unfair labor practices See G C. Exh. 20, p 4. 729 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As indicated, while requiring revocations to be effect- ed on PSA forms, said contract fails to specify where or under what circumstances PSA was to make such forms available to employees. Apparently, such matters, by virtue of the contract, were reposed to the discretion of PSA. For reasons which should be obvious, the right of a labor organization and an employer to negotiate the pro- cedures for checkoff revocation is carefully scrutinized under the precedent. The assignment of wages for the purpose of paying dues to a labor organization is akin to a contractual relationship in which the employer assumes the status of an agent for the purpose specified in the em- ployee's executed dues-checkoff authorization. The Union is simply a beneficiary and not otherwise a party thereto. The original dues-checkoff authorizations executed herein included no limitations on the right of employees to revoke, but simply stated as follows: Your authority to make the above-mentioned de- ductions shall remain in force and effect until re- voked by me in writing. Thus, section 23.2 of the collective-bargaining agreement engrafted an additional condition on revocation beyond that specified in the original delegation of authority. Such action under the cloak of collective bargaining would offend ordinary principles of agency and raise concern under the common law as to the propriety of an agent's, without consent of the principal, establishing conditions upon the duration of conferred authority. Yet, the National Labor Relations Act is even more graphic in stressing isolation of employee interests from those of an employer and union in the area of checkoff. Underly- ing Section 302 is a clear congressional intent to strike at corrupt practices between the parties to a bargaining re- lationship. Accordingly, employee freedom of choice with respect to wage assignments for the payment of dues, as protected by Section 302(c)(4), if viewed as sub- ject to substantive limitation through the bargaining process, would mock clear congressional mandate as leaving the proverbial henhouse to the guard of the fox. Examination of Board and judicial precedent evidences that contractual limitations on the employee rights in this area are dimly viewed to say the least. Thus, a court has held that a bargaining agreement furnished no defense to unfair labor practice allegations predicated upon an em- ployer's failure to honor revocations which would have been timely under a literal application of a contract.25 Further, in Cameron Iron Works, Inc., 235 NLRB 287 (1978), the employer and the union negotiated a dues-de- duction provision which required employees seeking to revoke his or her dues-checkoff authorization to give written notice to the union as well as the company. The employees, though notified of this requirement, neglected to do so, choosing instead to simply inform the company in writing of their desire to revoke. The company contin- ued to deduct dues from their wages and to remit them to the union. The Board held that the employer violated Section 8(a)(l) and (3) and that the union violated Sec- 25 N. LR.B. v. A tlanta Printing Speclalties, 523 F2d 713 tion 8(b)(1)(A) and (2), stating that a collective-bargain- ing agreement may not modify the revocation procedure without the consent of the individual employees. 26 However, the case which focuses most directly upon the contractual defense raised here is Felter v. Southern Pacific Company, 359 U.S. 326. That case arose under the Railway Labor Act, which, like the National Labor Re- lations Act, authorizes dues-checkoff agreements subject to the provision "[t]hat no such agreement shall be effec- tive with respect to any individual employee until he shall have furnished the employer with a written assign- ment to the labor organization . . . which shall be revo- cable in writing after the expiration of one year." 2 7 The issue in Felter arose in connnection with a contract nego- tiated between a union and rail carrier which, as here, required revocation to be effected on forms supplied by the union. The question before the Court in that case re- lated to "the validity of the contract, not its meaning." 28 The dispute arose when an employee, in writing, notified both the union and the carrier that he was revoking his dues-checkoff authorization. The carrier declined to honor the revocation because it was not on the form pro- vided by the union. The Court addressed the question as to the authority of an employer and a labor organization to negotiate restrictions on the rights afforded employees to revoke checkoff, stating at 333: [C]arriers and labor organizations are authorized to bargain for arrangements for a checkoff by the Em- ployer on behalf of the organization. Latitude is al- lowed in the terms of such arrangements, but not past the point such terms impinge upon the freedom expressly reserved to the individual employee to decide whether he will authorize the checkoff in his case. Similarly Congress consciously and deliberate- ly chose to deny carriers and labor organizations authority to reach terms which would restrict the employee's complete freedom to revoke an assign- ment by writing directly to the employer after I year. Congress was specifically concerned with keeping these areas of individual choice off the bar- gaining table. It is plainly our duty to effectuate this obvious intention of Congress, and we must there- fore be careful not to allow the employees' freedom of decision to be eroded in the name of procedure, or otherwise. We see no authority given by the Act 2 [l'nfolrcement of the Board's Order as denied 591 F2d I (5th Cir 197X) he Fifth Circuit viewed the additional notice requirement pre- scrihed in the cllectiite-harganinig agreement as a "nonburdeinsome pro- cedural requirement" which did not infringe "seriously upon the employ- ecs revocatilin rights or options" I agree with the General Counsel that the istant case is distinguishable (aneron involved a clear and unambi- guious conltracual requirement setting frth (n its face the obligation of the emnployee in clear unmistakable language The court's view that it im- posed a procedural and nonhurdenoome obligation was hardly untenable. Here, however, the procedures to be followed by employees to perfect their rocatiotns was not apparent on the face of the contract, which was silet as to where and when the PSA forms could be obtained It was rnl after their revocations had been executed and transmitted that 'SA. apparently unilaterally, added the additional requirement that revo- catini could be effected only upon pcrsonal appearance at PSA's head- quarters. See 45 i SC §152, I-leventh(h) 359 U S at 327. f 3 730 NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY to carriers and labor organizations to restrict the employees individual freedom of decision by such regulations as were agreed upon in the Dues De- duction Agreement. The question is not whether these restrictions might abstractly be called "reason- able" or not. 2 9 Although the above was preceded by a discussion of the legislative history behind this 1951 addition to the Railway Labor Act, there is no suggestion that this aspect of the Railway Labor Act, and the underlying congressional purpose, varied from that which had been embodied 4 years earlier in Section 302 of the National Labor Relations Act. No argument has been made nor evidence cited evincing that Congress viewed the right of dues-checkoff revocation to be more vulnerable to collective bargaining under the National Labor Relations Act than the Railway Labor Act. Indeed, the Court in Felter included a strong suggestion that its reasoning would extend with equal force beyond air and rail trans- port to other industries. Thus, the Court observed that the same three United States Senators who had expressed a desire that checkoff conditions under the Railway Labor Act be in general accord with "checkoff condi- tions of employees of other industries" were instrumental in the amendment to the Taft-Hartley Act "which re- stored to the Senate version of that Act the provision for individual option on the checkoff. . . now found in Sec- tion 302(c)(4) of that Act." The Court expressly stated that "the provision finally enacted in the Railway Labor Amendment was quite similar to that of the Taft-Hartley Act." 3 0 Indeed, at least one court has viewed the rationale of the Supreme Court in Felter as controlling with respect to such issues as they might arise under the National Labor Relations Act. See N.L.R.B. v. Atlanta Printing Specialties, 523 F.2d 783. In my opinion, Felter is dispositive of the issue as to the legitimacy of section 23.2 of the collective-bargaining agreement,31 and, based thereon, I find that, by main- taining and enforcing that agreement, the Shipyard vio- 29 It should be observed that F'elter did not foreclose the parties to a bargaining relationship from acting "to minimize the procedural prob- lems" arising under checkoff Thus, it was expressly stated at 359 U.S 334-335 that Carriers and labor organizations may set up procedures through the collective bargainingl agreement for processing, between them- selves, individual assignments and revocations received, and carriers may make reasonable designations, in or out of collective bargaining contracts, of agents to whom revocations may be sent. Revocations after all, must be sent somewhere And doubtless forms may be es- tablished, by way of suggestion, and means for making them availa- ble set up. Nonetheless, the Court concluded that the requirement that revocation be effected only on forms provided by the union was "made mandatory," and imposed "requirements over and above what we can perceive to be fairly those of the statute" ao 359 U.S. at 332-333, fn. 10. a In finding that the contractually specified requirement was unlawful, the Court rejected contentions that the requirement was necessary to pre- vent fraud and forgery, to avoid disputes as to the authenticity of revoca- tion instruments, and to protect an employee from himself and outside undue influence from a rival labor organization he Court also rejected the contention that, as a member of the contracting union, the employee was barred by the action of its bargaining representative in negotiating that ondition. lated Section 8(a)(3) and (1) of the Act and PSA violated Section 8(b)(1)(A) and (2). Nonetheless, even were section 23.2 to be viewed as establishing a legitimate requirement, its application in the circumstances of this case would be deemed unlaw- ful. Here, the record establishes that PSA revocation forms were never provided to the Shipyard's personnel or finance offices to facilitate employee access to such forms. In addition, according to the testimony of Andrew Harris, executive assistant business agent of PSA, revocation forms were not held by PSA delegates or stewards for distribution to members who wished them. Furthermore, neither the PSA constitution nor its bylaws make any reference to the circumstances govern- ing the withdrawal or revocation of checkoff. Indeed, Harris testified that the only document in writing which set forth the Union's policy with respect to revocation is the collective-bargaining agreement with the Shipyard. Indeed, prior to the 1978 insurgence of revocation ac- tivity it does not appear that the Shipyard or PSA pub- lished any information as to how PSA revocation forms could be obtained or where. Insofar as this record dis- closes the first such notification took place through PSA letters addressed solely to the employees who previously had clearly, and in writing, manifested their desire to revoke checkoff. Those letters stated that "the only way you can get one of these forms is to come to the PSA office." Thus, in this case, the impediment to the statu- torily guaranteed right of free choice with respect to dues-checkoff revocation was aggravated by three addi- tional elements. First, there was no general distribution or convenient access to PSA revocation forms. Second- ly, prior to revocation activity, there does not appear to have been any formal notification to employees as to the procedures they were required to follow to obtain such forms.32 And, finally, employees could only perfect this right through personal appearance at the PSA hall. The requirement that employees appear in person at PSA headquarters was not specifically authorized by the applicable collective-bargaining agreement. Since PSA revocation forms were not available in the Shipyard's of- fices but only at PSA headquarters it is difficult to imag- ine that the Shipyard at times material was unaware of this requirement. In any event, the Shipyard's having delegated responsibility to the PSA in connection with procedures for obtaining such forms is fully responsible under the Act in this regard. There can be little quarrel with the assumption that a requirement that employees appear in person at a union hall in order to revoke checkoff would impose, inherent- a2 As stated in felder, 359 U.S. at 33: And equally lacking in merit is the suggestion that the requirement of a . . . furnished form is so trivial as to make a whole controversy de minimis . Additional paper work or correspondence, after he once has indicated his desire to revoke in writing, might well be some deterrent . to the exercise of free choice by an individual worker When one considers the problem in its industrial setting and recalls the fact that individual workmen are not as equipped for and inclined to correspondence as are business offices, any complication of the procedure necessary to withdraw the addition of any extra steps to it may be burdensome. That involved here may deter em- ployees from taking an action they might have taken if no prelimi- nary contact with their lodge was necessary. 731 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly, an unconscionable impediment to the free choice con- ferred by Section 302(c)(4) of the Act. Quite obviously, where revocation of checkoff is concerned "the interest of the employees and the union are in direct conflict."3 3 In this case, however, that conflict is inflamed by PSA's history of unlawful abuses to employees who supported other labor organizations or who simply declined to sup- port PSA. 3 4 The unlawful conduct of PSA during the period prior to the election of January 31, 1978, is chronicled in deci- sions of the National Labor Relations Board. In Newport News Shipbuilding and Dry Dock Company, 236 NLRB 1499 (1978), PSA's initial effort to prevent a raid by USW upon the production and maintenance unit was found to have been reinforced unlawfully by the Ship- yard. In that case unfair labor practices were found against PSA and the Shipyard for various acts of coer- cion against employee supporters of the USW, including discrimination. Later in the spring of 1977, PSA's coer- cion to discourage support of the USW was extended through various threats uttered to supporters of the latter. See Peninsula Shipbuilders' Association (Newport News Shipbuilding and Dry Dock Company), 237 NLRB 1501 (1978). Physical violence was added to the means by which PSA sought to combat USW in Peninsula Ship- builders' Association (Newport News Shipbuilding and Dry Dock Company), 239 NLRB 831 (1978).3 5 Accordingly, even if section 23.2 of the collective-bar- gaining agreement be deemed lawful on its face, the ad- ditional restriction imposed by PSA was without sanc- tion of collective bargaining and could not be recognized as a legitimate basis for nullifying the unequivocally ex- pressed intention of employees herein to exercise their revocation rights conferred in Section 302(c)(4). Accord- ingly, by continuing to check off and remit the dues of employees who had in writing manifested their intention to revoke the assignment of wages, the Shipyard violated 3a See NL.R.B. v. Brotrherhood of Railway, Airline & Steamship Clerks, etc., 498 F.2d at 1109. 34 The record also attests to the inconvenience to certain employees of such a requirement. Thus, as communicated to them, PSA headquarters maintained office hours from 8 a.m. to 4:30 p.m. The Shipyard operates on a three-shift basis, with some 10,000 employees assigned to the 7 a.m. to 4 p.m. shift; some 2,000 to 3,000 employees on the 4 pm. to 12 mid- night shift and approximately 5,000 employees on the II1 pm. to 7 a.m. shift. The PSA office is located approximately one-half to three-quarters of a mile from the south gate of the Shipyard and approximately 1.3 miles from the northernmost gate. Thus, under the requirement imposed by PSA, employees not only were required to enter a potentially hostile environment to curtail financial support of PSA but many had to do it on their own time A conflict in testimony that the PSA office was closed frequently during the 12 noon to I p.m. lunch period and after the close of work need not be resolved. '5 PSA's propensity to violate the Act in order to preserve its repre- sentational interest is evident from earlier Board cases as well. See, e.g., Peninsula Shipbuilders' Association, Case 5-CA-1734 (January 27, 1976) where the Board, in the absence of exceptions thereto, adopted an Ad- ministrative Law Judge's finding that PSA representatives and agents violated Sec. 8(b)(1)(A) by threats against employees engaged in activity on behalf of International Association of Machinists, a labor organization attempting to organize the Shipyard's employees. See also Newport News Shipbuilding and Dry Dock Company, 233 NLRB 1443 (1977), involving coercion in the form of threats and discrimination through which the Shipyard and PSA collaborated to discourage activity on behalf of Marine Industrial Transportation Union of America. That case docu- ments PSA's attitude toward those inclined to withhold financial support and membership in PSA. Section 8(a)(3) and (1) of the Act.3 6 It is further found that PSA violated Section 8(b)(l)(A) and (2) of the Act by causing the Shipyard to remit dues deducted from the wages of employees who had previously manifested their revocation of such arrangements and by accepting and retaining said sums.3 7 CONCLUSIONS OF LAW 1. Respondent Shipyard is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The PSA and the USW are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent Shipyard violated Section 8(a)(3) and (I) of the Act by maintaining and enforcing a provision of its collective-bargaining agreement with the PSA re- stricting employees from exercising their right to revoke checkoff to the use of forms supplied by PSA and by continuing to check off union dues to PSA after receiv- ing clear and unambiguous revocations from said em- ployees. 4. Respondent PSA violated Section 8(b)(l)(A) and (2) of the Act by maintaining and enforcing section 23.2 of its collective-bargaining agreement with Respondent Shipyard, by causing Respondent Shipyard to continue to remit the dues of employees who had revoked their dues-checkoff authorizations, and by receiving and re- taining dues submitted unlawfully with respect to these employees. 5. The aforesaid unfair labor practices are unfair labor practices afffecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent Shipyard and Respond- ent PSA have engaged in certain unfair labor practices, it shall be recommended that said Respondents be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent Shipyard and Respond- ent PSA violated the Act with respect to the checkoff and remittance of union dues, it shall be recommended that they jointly and severally reimburse employees for moneys deducted from their wages for such purposes after their execution of valid revocations, with interest as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).38 36 There is no merit in the contention that employee revocations which were executed by printed, rather than script, signature were inval- id Where properly authenticated, the revocation is not invalidated on this ground. The Shipyard honored dues-checkoff assignments with print- ed signatures (see G.C. Exhs. 3(19), (47). (65), (105), (153), (163), and (172), and otherwise valid revocations should stand in no lesser stead. Any possibility of untoward conduct with respect to such revocations could have been ascertained by the Shipyard by simple inquiry 37 The record does not address the relationship between the unlawful conduct found herein and the strike which commenced on January 31, 1979. Accordingly, the allegation that said strike was "caused or pro- longed" thereby is unsubstantiated and shall be dismissed 3" See, generally, Isis Plumbing & Healing Co., 138 NLRB 716 (1962). 732 NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY The General Counsel also requests that PSA and the Shipyard be required to mail copies of the notice post- ings to all employees in the production and maintenance unit. Taking into account the practical realities, it is my view that such a remedial requirement would impose a burden unjustified by remedial interests. While fully aware of the history of recidivist conduct on the part of PSA and the Shipyard, the United Steelworkers of America is now the exclusive representative of the em- ployees in said unit, and it does not appear that the Ship- yard currently recognizes PSA as the representative of any of its employees. Thus, the possibility of repeat in- trusions upon employee freedom of choice with respect to checkoff by the parties is sufficiently remote to place the expense of individual mailing to upwards of 16,000 employees in the category of the disproportionate and punitive. In all the circumstances, conventional posting by the Shipyard and PSA is viewed as adequate to vindi- cate the purposes and the policies of the Act herein.39 On the basis of the foregoing findings of fact, conclu- sions of law, and upon the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER4 0 A. Respondent Newport News Shipbuilding and Dry Dock Company, Newport News, Virginia, its officers, agents, successors, and assigns, shall: a9 Appendix D attached hereto lists some 63 employees, all named in the complaint, but none of whom appeared to authenticate their revoca- tions As I indicated at the hearing, any rights acquired by this group with respect to the violations herein established were not prejudiced by their failure to appear, as any benefits accruing to them by virtue of the remedy herein provided may be established during the compliance stages of this proceeding. See, e.g., Industrial Towel and Uniform Service, a Divi- sion ofCavalier Industries, Inc., 195 NLRB 1121, 1122 (1972). In the course of hearing, the General Counsel deleted C E Vaughn from the complaint, and withdrew revocations purportedly executed by Robert E. Acree, S. R. Crockett, Alexander Thomas, Jr, and Michael H Conway. Those withdrawals are deemed with prejudice, and the com- plaints are dismissed insofar as they allege violations as to these four indi- viduals. Everett C. Neel authenticated his revocation, acknowledging that he forwarded the same to both the Shipyard and PSA. However, when questioned as to why he did not go to the PSA hall to revoke after re- ceipt of G.C. Exh. 12, he indicated that he did not wish to quit PSA until he could find out about the "other union," as the matter could still go either way A violation is found in his case. The Shipyard received his unambiguous revocation, and whatever Neel's reservations, they were communicated to no one and fail to alter his expressed intent. However, the complaints shall also be dismissed insofar as they allege violations with respect to James Dixon. The latter credibly testified that he for- warded his personally completed revocation to both PSA and the Ship- yard, but it is the sense of his testimony that he was under a disability at the time and believed that said document had been furnished by PSA to excuse its members from further financial support. Dixon related that had he understood the meaning of the revocation he would not have executed it, and that he informed PSA as to the foregoing. In the circumstances, although the issue is not free from doubt, I am inclined to find that the Shipyard did not violate the Act in dishonoring the revocation filed under such circumstances. In any event, no remedy would be warranted in Dixon's case. 40 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and ll objections thereto shall he deemed waived for all purposes 1. Cease and desist from: (a) Discouraging membership in the United Steelwork- ers of America, or any other labor organization, by con- tinued checkoff of membership dues to Peninsula Ship- builders' Association, or any labor organization, after employee authorization thereof has been effectively re- voked. (b) Maintaining or enforcing any provision of a collec- tive-bargaining agreement which impedes or restricts em- ployees in their right to revoke checkoff through clear, unambiguous declarations of their intent in that regard. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Reimburse the employees listed on Apprendix C for any sums improperly deducted from their wages in payment of union dues to Peninsula Shipbuilders' Associ- ation, with interest as set forth in the section of this De- cision entitled "The Remedy." Said liability shall be joint and several with Respondent Peninsula Shipbuilders' As- sociation. (b) Reimburse the employees listed on Appendix D at- tached hereto insofar as union dues were unlawfully de- ducted from their wages, with interest as set forth in the section of this Decision entitled "The Remedy." Said lia- bility shall be joint and several with Respondent Peninsu- la Shipbuilders' Association. (c) Post at its facilities in Newport News, Virginia, and environs, copies of the attached notice marked "Appen- dix A."4 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. B. Respondent Peninsula Shipbuilders' Association, Newport News, Virginia, its officers, agents, and repre- sentatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Newport News Shipbuilding and Dry Dock Company to deduct union dues from the wages of employees pursuant to dues- checkoff authorizations which are no longer valid be- cause such employees have effectively revoked such au- thorizations. (b) Maintaining or enforcing any provision of a collec- tive-bargaining agreement which impedes employees 1' In the evelit that this Order is enforced by a Judgment of a United States Court f Appeals, the words in the notice reading "Posted hby Order of the Natlonal l.ahor Relations Board" shall read "Posted Pursu- ant to a Judgmenl of the United States Court of Appeals Enforcing an Order of the Nalional l.abor Relations Hoard " 733 DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD from revoking checkoff authorizations by their clear and unambiguous declaration of such intent. (c) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act. (a) Jointly and severally with Respondent Newport News Shipbuilding and Dry Dock Company reimburse the employees listed on Appendix C for all sums improp- erly deducted from their wages in payment of union dues, with interest as specified in the section of this De- cision entitled "The Remedy." (b) Jointly and severally with Respondent Newport News Shipbuilding and Dry Dock Company reimburse the employees listed on Appendix D insofar as union dues was unlawfully deducted from their wages, with in- terest as specified in the section of the Decision entitled "The Remedy." (c) Post at its meeting halls copies of the attached notice marked "Appendix B."42 Copies of said notice, on 4z See fn. 41, supra. forms provided by the Regional Director for Region 5, after being duly signed by its authorized officer or repre- sentative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (d) Furnish signed copies of said Appendix B to the Regional Director for Region 5 for posting where no- tices of Newport News Shipbuilding and Dry Dock Company to its employees are posted, if said Newport News Shipbuilding and Dry Dock Company is willing to do so. (e) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 734