Affiliated Food Stores

National Labor Relations Board - Board Decisions

May 24, 1991

303 N.L.R.B. 40 (N.L.R.B. 1991)

40
303 NLRB No. 10
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On November 1, 1987, the Teamsters International Union was readmitted
to the AFL–CIO. Accordingly, the caption has been amended to reflect that
change.
2 The judge also found that Respondent Union violated Sec. 8(b)(1)(A) of
the Act by refusing to process, in a timely manner, the resignation of em-
ployee Hoyum. As to this matter, we agree with the judge’s finding and his
rationale.
3 302 NLRB 322 (991).
4 See NLRB v. Postal Service, 833 F.2d 1195 (6th Cir. 1987); NLRB v. Post-
al Service, 827 F.2d 548 (9th Cir. 1987).
5 Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
6 In Lockheed, the Board left open the question of how its waiver rule would
apply in the context of a lawful union-security provision. In the absence of
a union-security clause requiring union membership here, the Lockheed test is
applicable to this case.
Affiliated Food Stores, Inc. and Mark Hoyum
General Drivers, Warehousemen and Helpers,
Local Union 745, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO1
and Mark Hoyum. Cases 16–CA–14274 and 16–
CB–3459
May 24, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On May 25, 1990, Administrative Law Judge Wil-
liam N. Cates issued the attached decision. Respondent
Union and Respondent Employer both filed exceptions
and supporting briefs, and the General Counsel filed an
answering brief in support of the administrative law
judge’s decision.
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions as modified and to adopt the recommended
Order as modified.
The judge found that Respondent Union violated
Section 8(b)(1)(A) and (2) of the Act by refusing to
process employee Mark Hoyum’s dues-deduction rev-
ocation and by instructing, attempting to cause, and
causing the Employer to continue dues deductions for
Hoyum after he effectively resigned from union mem-
bership. The judge further found that Respondent Em-
ployer violated Section 8(a)(1), (2), and (3) of the Act
by refusing to honor Hoyum’s request to revoke his
dues-checkoff authorization and assignment after he ef-
fectively resigned from union membership. We agree
with the judge’s findings of the violations cited, but do
so for the following reasons.2
In Electrical Workers IBEW Local 2088 (Lockheed
Space Operations),3 the Board acknowledged judicial
criticism of the Eagle Signal4 analysis and set forth a
new test for determining the effect of an employee’s
resignation from union membership on that employee’s
dues-checkoff authorization. The Board in Lockheed
found that an employee may voluntarily agree to con-
tinue paying dues pursuant to a checkoff authorization
even after resignation of union membership. In fash-
ioning a test to determine whether an employee has in
fact agreed to do so, the Board recognized the fun-
damental policies under the Act guaranteeing employ-
ees the right to refrain from belonging to and assisting
a union, as well as the principle set forth by the Su-
preme Court that waiver of such statutory rights must
be clear and unmistakable.5 In order to give full effect
to these fundamental labor policies, the Board stated
that it would:
construe language relating to a checkoff author-
ization’s irrevocability—i.e., language specifying
an irrevocable duration for either 1 year from the
date of the authorization’s execution or on the ex-
piration of the existing collective-bargaining
agreement—as pertaining only to the method by
which dues payments will be made so long as
dues payments are properly owing. We shall not
read it as, by itself, a promise to pay dues beyond
the term in which an employee is liable for dues
on some other basis. Explicit language within the
checkoff authorization clearly setting forth an ob-
ligation to pay dues even in the absence of union
membership will be required to establish that the
employee has bound himself or herself to pay the
dues even after resignation of membership. [Id. at
328–329.]6
Applying the analysis of Lockheed to the facts in
this case, we find the Respondents have failed to show
that the dues-checkoff authorization that employee
Hoyum signed obligated him to pay dues after he ef-
fectively resigned union membership. As in Lockheed,
all that Hoyum clearly agreed to do was to allow cer-
tain sums to be deducted from his wages and remitted
to Respondent Union for payment of ‘‘initiation fees,
monthly fees, and uniform assessments.’’ He did not
clearly agree to have deductions made after he had
submitted his resignation from union membership. We
thus find that Hoyum did not clearly and unmistakably
waive his right to refrain from assisting a union after
resignation from membership. The authorization could
therefore not be enforced against him after he ceased
being a union member. We therefore find that Re-
spondent Employer’s refusal to discontinue payroll de-
ductions of union dues for Hoyum was unlawful assist-
ance to a labor organization and restrained and coerced
Hoyum in the exercise of his Section 7 rights. Accord-
ingly, we find that Respondent Employer violated Sec-
tion 8(a)(1), (2), and (3) of the Act. We further con-
clude that Respondent Union’s continuing to require
Hoyum to pay dues following his resignation from
41AFFILIATED FOOD STORES
union membership and its demand that Respondent
Employer continue to check off his membership dues
restrained and coerced Hoyum in the exercise of his
Section 7 rights. We thus find that Respondent Union
violated Section 8(b)(1)(A) and (2) of the Act.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 3.
‘‘3. By refusing to process Mark Hoyum’s resigna-
tion from the Union in a timely matter and by requir-
ing him to continue to pay dues after he resigned
membership in the Union, where the terms of the vol-
untarily executed checkoff authorization did not clearly
and explicitly impose any postresignation dues obliga-
tion on him, Respondent Union has restrained and co-
erced him in the exercise of his Section 7 rights and
violated Section 8(b)(1)(A) of the Act.’’
2. Insert the following as Conclusion of Law 4 and
renumber the remaining paragraphs.
‘‘4. By causing the Employer, by virtue of a dues-
checkoff authorization that does not clearly and explic-
itly impose any postresignation dues obligation on the
employees, to deduct union membership dues from
Hoyum’s wages after he had resigned union member-
ship, Respondent Union has violated Section 8(b)(2) of
the Act.’’
3. Substitute the following for new Conclusion of
Law 5.
‘‘5. By refusing to discontinue dues deductions from
the wages of Mark Hoyum after he ceased being a
union member, Respondent Employer has unlawfully
assisted Respondent Union and has restrained and co-
erced Hoyum in the exercise of his Section 7 rights,
thereby violating Section 8(a)(1), (2), and (3) of the
Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that
A. Respondent General Drivers, Warehousemen and
Helpers, Local Union 745, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL–CIO, Keller, Texas, its
officers, agents, and representatives, shall take the ac-
tion set forth in the Order, as modified.
1. Substitute the following for paragraph A(1)(b).
‘‘(b) Requiring any employee to continue to pay
dues after the employee has resigned membership in
the Union, where the terms of the voluntarily executed
checkoff authorization did not clearly and explicitly
impose any postresignation dues obligation on the em-
ployee and where the employee no longer owes union
dues.’’
2. Insert the following for paragraph A(1)(c) and re-
letter the remaining paragraph.
‘‘(c) Causing and/or attempting to cause the Em-
ployer, by virtue of a dues-checkoff authorization that
does not clearly and explicitly impose any
postresignation dues obligation on the employee to de-
duct union membership dues from the wages of any
employee who has resigned union membership.’’
3. Substitute the attached notice to members for that
of the administrative law judge.
B. Respondent Affiliated Food Stores, Keller, Texas,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph B(1)(a).
‘‘(a) Deducting, by virtue of dues-checkoff author-
izations that do not clearly and explicitly impose any
postresignation dues obligation on the employees,
union membership dues from the wages of any em-
ployee who has resigned union membership.’’
2. Substitute the attached notice to employees for
that of the administrative law judge.
APPENDIX A
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 require any employee to continue to
pay dues after the employee has resigned membership
in the Union, where the terms of the voluntarily exe-
cuted checkoff authorization do not clearly and explic-
itly impose any postresignation dues obligation on the
employee and where the employee no longer owes
union dues.
WE WILL NOT cause and/or attempt to cause Affili-
ated Food Stores, Inc., by virtue of a dues-checkoff au-
thorization that does not clearly and explicitly impose
any postresignation dues obligation on the employee
after resignation of union membership, to deduct union
membership dues from the wages of any employee
who has resigned union membership.
WE WILL NOT refuse to process, in a timely manner,
resignations from 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 make whole employee Mark Hoyum joint-
ly and severally with Affiliated Food Stores, Inc. for
any dues deductions from his wages for the period fol-
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lowing his resignation from union membership, with
interest.
GENERAL DRIVERS, WAREHOUSEMEN
AND HELPERS, LOCAL UNION 745,
AFFFILIATED WITH INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, AFL–CIO
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT deduct, by virtue of dues-checkoff au-
thorizations that do not clearly and explicitly impose
any postresignation dues obligation on the employees,
union membership dues from the wages of employees
who have resigned their union membership.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make whole, jointly and severally with
General Drivers, Warehousemen and Helpers, Local
Union 745, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO, employee Mark Hoyum for any
dues deductions from his wages for the period follow-
ing his resignation from union membership, with inter-
est.
AFFILIATED FOOD STORES, INC.
Timothy Watson, Esq., for the General Counsel.
Richard R. Swarb, of Keller, Texas, for the Company.
Yona Rozen, Esq. (Hicks, Gillespie, James, Rozen & Preston
P.C.), of Dallas, Texas, for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This case
was heard before me on February 5, 1990, at Fort Worth,
Texas. The trial was held pursuant to an order consolidating
cases, amended consolidated complaint and notice of hearing
(complaint) issued by the Regional Director for Region 16 of
the National Labor Relations Board (Board) on January 11,
1990. The complaint is based on charges filed by Mark
Hoyum, an individual (Hoyum), against Affiliated Food
Stores, Inc. (Company) and against General Drivers, Ware-
housemen and Helpers, Local Union 745, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Union). The charge in
Case 16–CA–14274 was filed on October 17, and amended
on December 4, 1989. The charge in Case 16–CB–3459 was
filed on October 17, and amended on December 4, 1989. The
complaint alleges the Union has violated Section 8(b)(1)(A)
and (2) of the Act by refusing and continuing to refuse since
on or about September 12, 1989, to process Hoyum’s res-
ignation and dues deduction revocation and by instructing,
attempting to cause, and causing, the Company to continue
the deduction of Hoyum’s dues. It is further alleged in the
complaint that the Company violated Section 8(a)(1), (2),
and (3) of the Act by refusing since on or about October 11,
1989, to honor Hoyum’s request to revoke his dues-checkoff
authorization and assignment.
The Company and Union admitted the commerce and ju-
risdictional allegations of the complaint as well as the labor
organization status of the Union. However, they denied hav-
ing violated the Act in any manner alleged in the complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering briefs filed by
counsel for the General Counsel, the Company, and the
Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company is now, and has been at all times material,
a Texas corporation with an office and principal place of
business in Keller, Texas, where it is engaged in the whole-
sale distribution of food products. During the calendar year
preceding issuance of the complaint herein, a representative
period, the Company, in the course and conduct of its oper-
ations, purchased and received goods, materials, equipment
and supplies valued in excess of $50,000 at its Keller, Texas
facility directly from points outside the State of Texas. The
Company is, and has been at all times material herein, an
employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The operative facts are not in dispute. The Company and
Union have a longstanding relationship and have been parties
to successive collective-bargaining agreements, the most re-
cent of which is effective from July 2, 1987 through July 1,
1990. Article VIII of the current collective-bargaining agree-
ment provides for checkoff whereby the Company deducts
union dues from the earnings of any employee who author-
izes such deductions by signing a union-provided checkoff
authorization and assignment card. Dues are deducted in ac-
cordance with the provisions outlined on the union-provided
authorization card.
Pertinent portions of article VIII ‘‘Checkoff’’ are as fol-
lows:
43AFFILIATED FOOD STORES
ARTICLE VIII
CHECK-OFF
(1) The COMPANY will deduct UNION dues (con-
sisting of initiation fees, monthly fees and uniform as-
sessments) each month from the earnings of any em-
ployee who authorizes such deductions by signing the
authorization card currently in use by the UNION (a
copy of which has been furnished to the COMPANY),
and such deductions shall be made in accordance with
provisions of said authorization form.
(2) Prior to the first (1st) day of each month, the
UNION shall furnish the COMPANY a list of employ-
ees from whose earnings deductions are to be made for
such dues and the amounts to be deducted. The COM-
PANY will deduct said amount from the first paycheck
of the employee in each month, and shall promptly
remit the total of said deductions to the Local UNION’s
fiscal officer, together with a list of the names of the
employees for whom deductions have been made and
the respective amounts of such deductions.
(3) The UNION agrees that it will indemnify and
save the COMPANY harmless from any and all liabil-
ity, claim, responsibility, damage, or suit which may
arise out of any action taken by the Company in ac-
cordance with the terms of this Article or in reliance
upon the authorization mentioned herein.
. . . .
(6) The COMPANY will recognize authorization for
an annual or weekly DRIVE deduction from wages to
be transmitted to Local 745 DRIVE. No such authoriza-
tion shall be recognized if in violation of State or Fed-
eral Law.
The checkoff authorization and assignment cards utilized
at material times herein are identical to the one voluntarily
signed by Hoyum on August 17, 1984. The checkoff author-
ization and assignment card Hoyum signed is as follows:
CHECK-OFF AUTHORIZATION
AND ASSIGNMENT
I, the undersigned member of Local 745 of the Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America herewith authorize
my employer to deduct from my wages each and every
month my union dues consisting of initiation fees,
monthly fees, and uniform assessments owing to such
Local Union as a result of membership, therein, and di-
rect that such amounts so deducted be sent to the Sec-
retary-Treasurer of such Local Union for and on my be-
half.
This authorization and assignment shall be irrev-
ocable for the term of applicable contract between the
Union and the Company, or for one year, whichever is
the lesser, and shall automatically renew itself for suc-
cessive yearly or applicable contract periods thereafter,
whichever is the lesser, unless I give written notice to
the Company and the Union at least 60 days and not
more than 75 days before any periodic renewal date of
this authorization and assignment of my desire to re-
voke the same.
Date 8/17/84 Signature /s/ Mark Hoyum
Sign Full Name
Hoyum sent an undated certified letter to the Union which
was received on September 11, 1989. Hoyum’s handwritten
letter reads as follows:
To Whom it May Concern
I am withdrawing from Teamsters Local #745 on
Date 9/ /89. Which is my right in the Affiliated Foods,
Teamsters contract July 1, 1987-July 1, 1990 in Article
Three: Paragraph One.
Also at this time I am also withdrawing from all do-
nations to D.R.I.V.E. (Teamsters charity).
c/c Teamsters local #745
c/c affiliated foods
c/c Labor Relations Board.
Hoyum sent certified copies of his letter to the Company
and to the Board’s Regional (16) Office.
Union Assistant Business Representative Michael Kline
(Kline) acknowledged receipt of Hoyum’s request in a letter
to Hoyum dated September 12, 1989. Kline’s letter to
Hoyum is as follows:
Mr. Mark Hoyum
3713 East Ridge
Haltom, Texas 76117
Dear Sir and Brother:
Please be advised Teamsters Local Union 745 is in
receipt of your request to ’Withdraw’ your membership
from this Local Union.
Please be advised your withdrawal is irrevocable
through the terms of the Check-Off Authorization and
Assignment. We will expect the Company to continue
the Check-Off provisions per Article 8 of the current
working Agreement.
Also, please be advised that your application for
withdrawal from D.R.I.V.E. should be sent to the Inter-
national Union in Washington, D.C.
Fraternally yours,
TEAMSTERS, LOCAL UNION 745
/s/ Michael Kline
Michael Kline
Assistant Business
Representative
The Company did not respond to Hoyum’s letter. Com-
pany payroll clerk Carla Harter (Harter) testified that after
she received the letter, she immediately canceled payroll de-
duction of union dues for Hoyum. Harter said that after the
next pay period (around October 4, 1989) from which union
dues were deducted, she received a telephone call from
Union Assistant Business Representative Kline about the fact
dues were not deducted for Hoyum. Kline told Harter the
Company should not have stopped deducting dues from
Hoyum’s wages. Harter said she reviewed Hoyum’s dues de-
duction status with her superiors and thereafter telephoned
Kline to tell him dues deductions for Hoyum should not have
been stopped and would be reinstated.
The Company deducted union dues from Hoyum’s next
pay check which was on October 11, 1989.
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Counsel for the General Counsel contends the instant case does not involve
a union-security clause and as such he asserts he need not, and does not, take
a position on the requirements of an employee resigning his or her union
membership in that type situation.
On receipt of his October 11, 1989 pay check from which
union dues had been deducted, Hoyum telephoned Company
payroll clerk Harter for an explanation. Harter told Hoyum
it was her fault that she had mistakenly stopped deducting
dues from his pay. Harter explained the situation to Hoyum,
apologized for her mistake, and told him dues deductions had
been reinstated for him. The Company thereafter has contin-
ued to deduct dues from Hoyum’s pay and transmit same to
the Union which has continued to receive the dues.
On November 16, 1989, Assistant Business Representative
Kline sent Hoyum the following letter:
Mr. Mark Hoyum
3713 Eastridge
Haltom, Texas 76117
Dear Mr. Hoyum:
In further response to your letter notifying the Union
of your withdrawal from Teamsters Local 745 which
was received by Local 745 on September 11, 1989, I
would offer you the following information. Although
the Article that you quote (Article III) is not currently
in effect, we take your letter to mean that you wish to
withdraw from your membership in Local 745. There-
fore, we will grant your request that you no longer be
a member of Local 745.
However, the issue of Dues Deduction Authorization
is separate from membership in Local 745. Since your
request was not timely as to the terms of your Dues
Deduction and Authorization, it is our position that you
are still bound by your Dues Deduction and Authoriza-
tion.
I hope that this clarifies the Union’s position in this
matter.
Very truly yours,
/s/ Michael Kline
Michael Kline
Assistant Business
Representative
TEAMSTERS LOCAL
UNION 745
Assistant Business Representative Kline testified there was
no requirement that an employee authorize payroll deduc-
tions in order to pay union dues. Kline said employees could
pay their dues personally at the union hall, or they could do
so through the postal service utilizing checks or money or-
ders. Kline acknowledged that all of the approximately 550
dues paying employees at the Company paid their union dues
pursuant to the checkoff procedure. Kline explained the
Union relied on the period of irrevocability for dues to plan
and budget its operations.
The Union continues to receive dues deducted by the
Company on behalf of Hoyum.
B. Discussion, Analysis, and Conclusions
The central overriding question to be decided herein is
whether Hoyum’s checkoff authorization and assignment was
terminated as a result of his resignation from the Union.
The positions taken by the parties are briefly highlighted
at this point to facilitate an understanding of the analysis
hereinafter set forth.
Counsel for the General Counsel asserts certain rights ac-
corded employees in Section 7 of the Act are well settled.
He asserts that one of the most important of those settled
rights is the right to resign union membership unimpeded.
Counsel for the General Counsel points out that the Board
and Courts have concluded that any restriction on the right
to resign membership in a union is not only inconsistent with
a policy of voluntary unionism implicit in Section 8(a)(3) of
the Act but also violates Section 8(b)(1)(A) of the Act. With
respect to the instant case, counsel for the General Counsel
asserts the Union’s refusal to grant Hoyum’s request for res-
ignation from the Union until approximately 2 months after
he made his request was unlawful. Counsel for the General
Counsel further asserts the Union’s refusal to recognize
Hoyum’s resignation from the Union as a revocation of his
dues-checkoff authorization and assignment constituted an
unlawful restriction on his Section 7 right to resign union
membership. Counsel for the General Counsel urges that the
Section 7 rights of employees, such as Hoyum, to resign
their union membership necessarily encompasses the right to
sever all ties to the union. In that regard, counsel for the
General Counsel urges that logic dictates that an employee’s
Section 7 right to resign membership in a union would be
meaningless if an employee, such as Hoyum, could be re-
quired to continue to lend financial support to the union from
which he or she has resigned.1 Counsel for the General
Counsel urges that the Union’s barrier of not allowing
Hoyum to escape financial responsibilities to the Union un-
lawfully deterred him in the exercising of one of his most
fundamental Section 7 rights—the right to resign union
membership.
Counsel for the General Counsel argues an alternative the-
ory namely that even if Hoyum’s resignation from the Union
did not revoke his checkoff authorization, his resignation re-
duced his dues obligation to zero. Accordingly, he argues
zero is the amount to be deducted and remitted to the Union.
Consequently, he argues the Union violated the Act by caus-
ing the Company to deduct and by continuing to accept any
amount of dues from Hoyum’s pay greater than zero.
Finally, counsel for the General Counsel asserts the check-
off authorization and assignment card executed by Hoyum by
its express language makes dues payment a quid pro quo for
union membership. Counsel for the General Counsel argues
Board law is that a resignation will revoke a checkoff author-
ization and assignment even in the absence of a revocation
request where the authorization itself makes payment of dues
a quid pro quo for union membership.
The Union asserts Hoyum voluntarily joined the Union
and when faced with the option of paying his dues directly
or paying them through checkoff, he opted to enter into a
contract with the Union and the Company for the manner in
which he would pay his union commitments. The Union ar-
gues there is nothing about that voluntary arrangement be-
tween the parties for the convenient payment of dues that
violates Section 7 of the Act inasmuch as it was a voluntary
noncoercive act. In that regard, the Union argues Hoyum was
free during the term of his checkoff authorization to quit the
union and cease associating with it; however, having volun-
45AFFILIATED FOOD STORES
tarily entered into a contract with the Union, he was not free
to void the means he chose for payment of his dues except
pursuant to the terms of the checkoff authorization and as-
signment. The Union further contends Hoyum could have
sought a checkoff authorization providing for cessation of
dues deductions at any time but instead chose to sign a
checkoff authorization committing himself to at least one
year’s payments. The Union argues that under the cir-
cumstances, it is nonsensical to contend Hoyum is now un-
lawfully restricted by the voluntary act he made in selecting
a means of paying his commitments to the Union. The Union
asserts it has not in any manner restricted Hoyum’s right to
resign his membership in the Union. The Union notes that
although Hoyum is no longer a member he is a party to a
common law contract requiring him to pay union dues for a
period of at least one year. The Union urges Hoyum’s com-
mitment is subject to termination by him but only pursuant
to the terms set out in the checkoff authorization and assign-
ment itself. The Union also argues that by knowingly and
conscientiously entering into this dues-checkoff arrangement
Hoyum gave up his right to cease paying dues on an unre-
stricted basis. In this regard, the Union argues Hoyum is es-
topped from asserting a violation of the Act in that he has
waived his statutory right to complain by entering into the
voluntary dues-checkoff authorization and assignment.
The Union argues the checkoff authorization is not in con-
sideration of union membership but is merely an agreed upon
means of payment selected by the Union, Company, and
Hoyum. The Union asserts each benefits from this arrange-
ment. The individual has his obligations to the union taken
care of without any effort on his part, the Union is able to
plan its operations based on funds available to it and the
Company and Union benefit from having a system of dues
collection that is not constantly disrupted.
Finally, the Union notes Hoyum executed his dues-check-
off authorization on August 17, 1984, and did not file his
charges until October 1989. The Union points out that more
than 6 months elapsed between his execution of the agree-
ment and the filing of the charges. Accordingly, the Union
urges that if a violation occurred, it occurred when the dues-
checkoff authorization (which imposed the restrictions com-
plained of herein) was executed. The Union argues Hoyum’s
charges are therefore time barred.
The Company takes the position it has not violated the Act
simply by fulfilling certain of the terms and conditions of its
collective-bargaining agreement with the Union specifically
as it pertains to checkoff of union dues. The Company as-
serts Hoyum voluntarily executed the checkoff authorization
and assignment agreement thereby agreeing to be bound by
the revocation limitations set forth therein. Simply stated the
Company urges the checkoff authorization is a contract enti-
tled to full force and effect unless revoked in accordance
with the provisions set forth therein. The Company contends
that since Hoyum did not resign his membership within the
time period set forth in the checkoff authorization and as-
signment agreement, he failed to effectively revoke his
checkoff authorization. Finally, the Company asserts the
checkoff authorization and assignment is separate and apart
from, and not in consideration for, union membership.
It is useful at this point to review certain principles estab-
lished by the Board and courts.
In Pattern Makers League v. NLRB, 473 U.S. 95 (1985),
the Supreme Court addressed the issue of ‘‘whether a union
is precluded from fining employees who have attempted to
resign when resignations are prohibited by the union’s con-
stitution.’’ In deciding that issue, the Court held:
The Board has found union restrictions on the right to
resign to be inconsistent with the policy of voluntary
unionism implicit in 8(a)(3). See International Assn. of
Machinists, Inc., Local 1414 (Neufeld Porshe-Audi,
Inc.), supra; Machinists Local 1327 (Dalmo Victor II),
263 NLRB at 992 (Chairman Van de Water and Mem-
ber Hunter concurring). We believe that the inconsist-
ency 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.
In the Machinists Local 1414 (Neufeld Porshe-Audi), 270
NLRB 1330 (1984), case referred to by the Court in Pattern
Makers, the Board adopted the concurring opinion of then
Chairman Van de Water and then Member Hunter in Dalmo
Victor II, 263 NLRB 984, enf. denied 725 F.2d 1212 (9th
Cir. 1984), that any restriction imposed on a member’s right
to resign union membership or to otherwise refrain from Sec-
tion 7 activities violated Section 8(b)(1)(A) of the Act.
In the case of Machinists Local 2045 (Eagle Signal), 268
NLRB 635 at 637 (1984), the Board held:
It is established Board law that a dues-checkoff author-
ization, or wage assignment as it is called in this case,
is a contract between an employee and his employer
and that a resignation of union membership ordinarily
does not revoke a checkoff authorization. However, a
resignation will, by operation of law, revoke a checkoff
authorization, even absent a revocation request, where
the authorization itself makes payment of dues a quid
pro quo for union membership. This is so whether or
not the resignation is made during the period for rev-
ocation set forth in the authorization itself.
In Letter Carriers (Postal Service), 283 NLRB 644 (1987),
the Board adopted an administrative law judge’s conclusion
that the payment of dues therein was a quid pro quo for
union membership. In that decision, then Member Johansen
noted ‘‘that the same result is reached if we construe the
[dues deduction] authorization to continue but that, as the
amount of dues owed is zero, zero is the amount to be de-
ducted and remitted.’’
The above principles make one thing absolutely clear
which is no restrictions, impediments, or delays may lawfully
be placed on a member’s right to resign from a union.
Hence, the delay by the Union herein in honoring Hoyum’s
request to resign his union membership from September 11,
1989 until November 16, 1989, was excessive, not shown to
be necessary and as such violated the Act. In that regard, I
note the Union offered no valid explanation for the roughly
10 weeks it took to honor Hoyum’s request to resign his
union membership. Furthermore, the teachings of Pattern
Makers and Neufeld Porshe-Audi, persuade me that the Sec-
tion 7 rights of members to resign their union membership
necessarily encompasses the right to sever all ties to a union.
A member’s right to resign union membership would be
meaningless if he or she could thereafter be required to con-
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Under New Horizons, interest is computed at the ‘‘short-term Federal rate’’
for the underpayment of taxes as set out in the 1986 amendments to 26 U.S.C.
§ 6621. Interest accrued before January 1, 1987 (the effective date of the
amendment) shall be computed as in Florida Steel Corp., 231 NLRB 651
(1977).
3 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 objec-
tions to them shall be deemed waived for all purposes.
tinue to lend financial support to a union from which he or
she has resigned. To not allow an employee to escape the
monetary burden placed upon him or her by dues checkoff
after the employee has effectively resigned membership in a
union would constitute a barrier that would impede, if not
completely deter, such an employee from exercising one of
his or her most fundamental Section 7 rights, namely the
right to resign union membership. Stated differently, the
monetary implications of continued dues deductions after
membership resignation amounts to a frustration of the right
to resign union membership. In the instant case, the Union
did not allow Hoyum to escape monetary obligations to it
even after it belatedly honored his request to resign his union
membership. The Union’s action in reality made Hoyum’s
resignation meaningless and unlawfully impeded and frus-
trated him in his effort to sever his relationship with the
Union. Simply stated, the Union’s restriction on Hoyum’s
revocation of dues checkoff was, and is, tantamount to a re-
striction on resignation and accordingly unlawful under the
Supreme Court’s teachings in Pattern Makers and I so find.
In that same light, I also conclude and find the Company
violated Section 8(a)(1), (2), and (3) of the Act by refusing
to honor Hoyum’s request to revoke his dues checkoff au-
thorization and assignment after he had effectively resigned
his union membership.
Alternatively, I conclude and find the checkoff authoriza-
tion and assignment executed by Hoyum clearly dem-
onstrates the moneys withheld and thereafter transmitted to
the Company were, and are, being withheld (and transmitted)
as a quid pro quo for membership in the Union. The perti-
nent language in the authorization and assignment signed by
Hoyum—‘‘I . . . authorize my employer to deduct from my
wages . . . my union dues consisting of initiation fees,
monthly fees, and uniform assessments owing such local
union as a result of membership, therein,’’ is virtually indis-
tinguishable in character from Eagle Signal, supra, and Food
& Commercial Workers Local 425 (Hudson Foods), 282
NLRB 1413 (1987). Accordingly, I find Hoyum’s authoriza-
tion and assignment was revoked, by operation of law, when
he effectively resigned his membership in the Union and that
the Union by causing the Company to continue to checkoff
dues for Hoyum restrained and coerced him in the exercise
of his Section 7 rights in violation of Section 8(b)(1)(A) and
(2) of the Act. I likewise find the Company violated Section
8(a)(1), (2), and (3) of the Act by failing and refusing to
honor Hoyum’s request to revoke his dues-checkoff author-
ization and assignment after he had effectively resigned his
union membership.
Assuming arguendo that Hoyum’s authorization and as-
signment continued in effect, I would conclude the amount
of dues he owes is zero and in keeping with then Member
Johansen’s notation in Letter Carriers (Postal Service), zero
is the amount to be deducted and remitted to the Union.
The fact certain appellate courts have rejected the Board’s
rationale in these type cases, see, e.g., NLRB v. Postal Serv-
ice, 833 F.2d 1195 (6th Cir. 1987), and NLRB v. Postal Serv-
ice, 827 F.2d 548 (9th Cir. 1987), does not compel a dif-
ferent result than that arrived at herein in that Board prece-
dent is to be applied by administrative law judges unless or
until the Supreme Court rules otherwise. See, e.g., Iowa Beef
Packers, 144 NLRB 615 (1963), and Waco, Inc., 273 NLRB
746, 749 fn. 14 (1984).
I reject the Union’s contention the charges herein are
barred by the 6-month limitations period outlined in Section
10(b) of the Act or that Hoyum is estopped from asserting
violations of the Act against it as being patently without
merit.
CONCLUSIONS OF LAW
1. Affiliated Food Stores, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. General Drivers, Warehousemen and Helpers, Local
Union 745, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica is a labor organization within the meaning of Section 2(5)
of the Act.
3. By refusing to process Mark Hoyum’s resignation from
the Union in a timely manner, by refusing to process his
dues deduction revocation, and by instructing, attempting to
cause, and causing the Company to continue dues deductions
for Hoyum after he effectively resigned from union member-
ship, the Union violated Section 8(b)(1)(A) and (2) of the
Act.
4. By refusing to honor Mark Hoyum’s request to revoke
his dues-checkoff authorization and assignment after he ef-
fectively resigned from union membership, the Company vio-
lated Section 8(a)(1), (2), and (3) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Union and Company have engaged
in, and are engaging in, unfair labor practices within the
meaning of Sections 8(b)(1)(A) and (2) and 8(a)(1), (2), and
(3) of the Act, I shall order the Union and Company to cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
I shall recommend that the Union and Company make
Mark Hoyum whole for any monetary losses he may have
suffered by reason of the Union’s and Company’s unlawful
refusal to honor his revocation of dues-checkoff authorization
and assignment after Hoyum had effectively resigned his
union membership. The moneys owed are to be computed in
a manner consistent with Board policy and with interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).2
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
A. General Drivers, Warehousemen and Helpers, Local
Union 745, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
47AFFILIATED FOOD STORES
4 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ 5 See fn. 4, supra.
ica, AFL–CIO, Keller, Texas, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Refusing to timely honor valid resignations by employ-
ees from union membership.
(b) Refusing to honor the revocation of dues checkoff au-
thorization and assignment by employees having effectively
resigned their union membership.
(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 necessary to ef-
fectuate the policies of the Act.
(a) Jointly and severally with Affiliated Food Stores, Inc.
reimburse or refund to Mark Hoyum the dues unlawfully col-
lected from him, with interest, for the period following his
valid resignation from union membership and revocation of
dues-checkoff authorization and assignment as set forth in
the remedy section of this decision.
(b) Post at its Union office, copies of the attached notice
marked ‘‘Appendix A.’’4 Copies of the notice, on forms pro-
vided by the Regional Director for Region 16, after being
signed by the Union’s authorized representative, shall be
posted by the Union immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Union to en-
sure that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Union has taken
to comply.
B. Affiliated Food Stores, Inc, Keller, Texas, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to honor the revocation of dues checkoff au-
thorization and assignment by employees having effectively
resigned their union membership.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Jointly and severally with General Drivers, Warehouse-
men and Helpers, Local Union 745, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, reimburse or refund to Mark
Hoyum the dues unlawfully collected from him, with inter-
est, for the period following his valid resignation from union
membership and revocation of dues-checkoff authorization
and assignment as set forth in the remedy section of this de-
cision.
(b) Post at its Keller, Texas, office, copies of the attached
notice marked ‘‘Appendix B.’’5 Copies of the notice, on
forms provided by the Regional Director for Region 16, after
being signed by the Company’s authorized representative,
shall be posted by the Company immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Company to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Company has
taken to comply.